Public Enterprises Budget Vote 2019 incident: hearing day 2
Meeting Summary
Video: Powers and Privileges Committee 25 November 2020 Part2
National Assembly Rules
Physical Removal of Member from Chamber on Removal of members from Committee Room E249 during mini-plenary debate on Budget Vote 11: Public Enterprises on 11 July 2019
Hansard: 11 July 2019 & Video
Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act 4 of 2004
Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Act 9 of 2019
15 Sep 2020 |
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24 Nov 2020 |
The Powers and Privileges Committee met in Parliament for a second day to deal with the incident that happened during the Public Enterprises Budget Vote 2019 in Room 249 on 11 July 2019.
The Committee began with a discussion of preliminary matters. Firstly, it was noted that the charged Members of Parliament were not present to appear before the Committee and Members wanted to know where they were and whether they would be attending the hearing. The Initiator appointed by Parliament to assist the Committee addressed four matters: updating the bundle of documents relating to the matter; the legal representation application; the matter of the written explanations/representations; what was to be done in the apparent absence of Members.
The Committee examined a letter from the Acting Secretary of Parliament and a response from a firm of attorneys in which the attorneys complained that it was trial by ambush. The Initiator informed the Committee that there was no merit to the complaint of a “trial by ambush” as the attorneys had been in possession of all the documentation prior to her sending it to them in the form of a bundle earlier that week. The affected Members had stated that they would be providing explanations and were granted an extension that required the explanations by 23 November 2020, but no explanations had been received. The whereabouts of the affected Members was unknown but the Committee was entitled to proceed in the absence of the Members.
Members were concerned that they had not been privy to the communication between the Secretary of Parliament and the attorneys but it was clarified that the Secretary had been requested to act, administratively, on behalf of the Committee and that the Chairperson had been privy to the communication as, procedurally, he acted on behalf of the Committee.
After a lengthy discussion, the Committee determined that dealing with legal representations on an administrative level was different from legal representation in a hearing and therefore the attorneys of record could address the Committee on the administrative matters prior to the hearing. In respect of the right to external legal representation during the hearing for the affected Members, that had to be determined by the Committee based on the complexity of the case.
Counsel for the affected Members explained that on 11 November 2020 when the attorneys came on record to engage in the process, the attorneys had asked if the firm could act on behalf of the affected Members if the hearing went ahead. The response from the Acting Secretary of Parliament had been that the Members were advised to request permission but no indication was given of an alternate form of request. At that stage the Committee had not yet determined whether there would be a hearing. Counsel’s position was that from the very beginning, the attorneys had been dealing with complex legal issues that affected the Members’ rights to a fair trial. The affected Members indicated through their attorneys that their absence arose from their reluctance to legitimise the Committee as it was procedurally and substantially unfair. If the hearing proceeded against the Members without legal representation, it would be a gross abuse of procedure and substantive abuse of the Members’ rights and the complainants would have to consider whether to take Parliament under review for the conduct that had been catalogued to date.
The Committee agreed that a request for legal representation had been made on behalf of the Members and determined that they would be allowed external legal representation. The Chairperson clarified the status of the Committee by explaining that it had been appointed in accordance with the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act. The Committee was following the Rules of Parliament. The issue of Members of the Committee being biased as asserted by the affected Members was rejected on that basis. It was also noted that the EFF had unsuccessfully challenged the disciplinary process of Parliament in the Cape High Court in 2014. It was decided that there was no just cause for the charged Members being absent and the hearing would take place in their absence.
Counsel for the charged Members informed the Committee that in light of that decision, he was instructed by his clients that the Act and the Rules of Parliament would be imminently challenged in the Cape High Court. He requested leave not to attend the hearings as he had been instructed not to legitimise the hearings.
The Initiator read the charges against 16 Members of Parliament in respect of the incident of 11 July 2019 at the Public Enterprises Budget Vote Debate. In their absence, the Chairperson pleaded not guilty to each charge.
The first witness was Under-Secretary of the National Assembly Table staff which made him the manager responsible for sittings in the National Assembly. Being responsible for advising the Presiding Officers on rulings and other matters, his testimony related to the Rules of Parliament that pertained to conduct in the House of Assembly and Mini-Plenaries in respect of the Presiding Officer, Members, points of order, conduct and the function of the Sergeant-at-Arms and the parliamentary protection services. As he was advising the Presiding Officer on that occasion, he was also called upon to identify the Members involved in various acts of misconduct and to relate their behaviour to the Rules of Parliament.
Meeting report
Opening Remarks
The Chairperson welcomed Members and everyone. He recapped the events of the previous day. The meeting was postponed the previous day following a request for postponement as the Counsel for the affected Members was unable to attend as he was being tested for the Covid-19 virus. It had also been agreed that an e-copy of correspondence between the Acting Secretary of Parliament and the attorney acting for the affected Members be furnished to Committee Members. He noted that Members had received a bundle of documents.
Preliminary matters
The Chairperson informed Members that there had not been an application for legal representation, nor had explanations been received from the affected Members. There were no Members who had been charged in the venue. He had had no explanation for their absence.
Adv Ncumisa Mayosi, Initiator, stated that neither she, nor Parliament’s internal legal team, had not been told that the Members would not be attending. She had expected them to attend.
She stated that the electronic copy of the documents had been sent to Members and to the attorneys of record of the affected Members. Hard copies had also been provided. Two letters had not yet been circulated and she called for them to be circulated to the Members and the attorneys of record at that moment, so that she could address the letters.
Once the letters had been distributed, Adv Mayosi explained that the first letter, paginated number 633, was a response by the Acting Secretary of Parliament to the attorneys of record and that on page 634 was a letter received after the attorneys had been provided with an e-copy of the bundle of documents relating to the matter. The attorneys complained that the bundle, which was more than 600 pages had been received late and so they were being subjected to a trial by ambush.
Adv Mayosi stated that there was no merit in their complaint.
Dr M Ndlozi (EFF) asked on a point of clarity at what stage the meeting was. Had the matter of legal representation been addressed? He was confused. The Chairperson had asked a specific question but it was unclear what was being dealt with in the meeting.
The Chairperson responded that he had asked the Initiator whether she knew anything about the whereabouts of the affected Members. She was dealing with letters that had been received. She was dealing with preliminary matters but she would also advise the Committee as to what should be done if the Members affected were not present. He requested that Members give Adv Mayosi time to present the issues and that the Members would then decide what would be done.
Adv Mayosi stated that she was addressing the following: 1. updating the bundle of documents relating to the matter; 2. the legal representation application; 3. the matter of the written explanations/representations; 4. what was to be done in the apparent absence of Members.
Updating of documents
She stated that in the letter on page 634, the attorneys complained that it was trial by ambush. She was adamant that there was no merit to the complaint. The bundle of documentation which had been provided to the attorneys of record had a two-page index with 24 items, to which the additional two letters had to be added. All of the documents from items 12 to 24 were in the possession of the affected Members. Items 12 & 13 had been provided to the attorneys on 16 November 2020. Item 14 was a copy of the rules of the National Assembly of Parliament. It was like the Bible that regulated the business of Parliament. All affected Members had copies and were familiar with the rules. It had been provided as a courtesy for the convenience of everyone. The documents of Item 16 were the notifications of charges which all Members had had since 6 November 2020. The final items were copies of the letters sent by and received by the attorneys of record since 11 November 2020. There could be no prejudice against the attorneys as they had had access to all the documents.
Item number 2 was to place in the record the unrevised Hansard that had been given to the affected Members on 12 November 2020. Items 4 and 5 were two two-page documents relating to the recording and had been in the possession of affected Members since 12 November 2020.
The remaining documents, 6 to 11 were self-evidently relevant to the proceedings but when the documents were presented in the hearing, the attorneys of record would be able to complain. There was no merit to the complaint in the letter on page 624. Adv Mayosi noted that even if the bundle had been furnished the previous week, she would still have expected the complaint.
Explanations by affected Members
In a letter from the attorney of record, the Members had stated that they would be providing explanations and requested an extension of the date for providing the statements. That had been granted with a new date of 23 November 2020. No explanations had yet been received. They were also entitled to provide oral representations, which they might choose to do, depending on the Committee’s response to the question of legal representation.
Legal representation
In the correspondence it was explained that there was no automatic right to legal representation and an application had to be made to the Committee.
She was not aware of any. There had been a demand that the Members be automatically given the right to the legal representation. The attorneys of record could perhaps explain the status of that matter.
The Attendance of Members
The affected Members were not present and that had been explained in the correspondence. Again, perhaps the attorneys of record could provide an explanation. The Committee was entitled to proceed in the absence of the Members. The affected Members had been advised of that in the correspondence.
Discussion on the above matters
The Chairperson informed Members that the Committee had to determine what to do. The Members who had been charged were not in the room. There had been no application for formal representation. He suggested that if the attorneys who had been exchanging correspondence were in the House, they be given an opportunity to explain where the Members were. He made it clear that it did not mean that the legal team had been given approval to represent the Members.
Ms D Peters (ANC) asked if the affected Members had responded and given an explanation. The point was that if the legal representative was given the opportunity to speak on behalf of the Members, that would mean that Parliament was treating the affected Members as a group. She did not want to recognise that the Members could be treated as a block, instead of as individuals. What did that mean from a procedural perspective?
The Chairperson stated that Parliament had received a letter from a firm of attorneys which indicated that they were representing all the Members who had been charged and they had corresponded with Parliament on behalf of all of them. There had been no correspondence from the individuals or any pleadings.
Adv Mayosi referred Ms Peters to page 603 in the bundle dated 11 November 2020 which was the first communication from the attorneys. Paragraph 4 stated that the attorney’s clients who had received the charge sheet would be making written representations from each of the affected Members, which should be forwarded to the Powers and Privileges Committee. The Attorney asked for confirmation that they could represent the clients.
The response to the communication by the Acting Secretary was on page 605 and stated that the Members had to request permission for legal representation. On page 625 of the bundle was a letter from the attorneys. In the section headed ‘Demands’ it stated that their clients be given automatic right of legal representation. The Acting Secretary had not acquiesced to those demands.
Dr Ndlozi was not happy that the Committee Members had never been given the letters and he required an explanation as to why the correspondence had not been referred to the Committee Members. The matter should have been addressed prior to the current state of proceedings. Decisions had been taken on behalf of the Committee. It was wrong for the Acting Secretary of Parliament to speak on behalf of the Committee. Members had a natural right to be represented by a legal practitioner. That could not be debated.
Dr Ndlozi read the relevant extract from the Schedule to the Rules of Parliament, Edition 9, (page 465 in the bundle of documents):
Outside legal representation
3. In complex cases or cases involving complicated evidence or legal issues, and where the committee is of the view that such legal representation might be essential for a fair hearing, the committee may allow the
member charged to be represented by a legal practitioner who is not a member.
Explanation by member
4. If the member wishes to give an explanation after receiving the notice, he or she may do so either verbally or in writing. Such explanation may also be presented at the hearing.
Dr Ndlozi stated that the Committee should have been asked if they found the reasons for outside legal representation adequate. On whose instructions was the Acting Secretary writing? The Acting Secretary was not even a Member. There was something wrong and he wanted it on record that the correspondence should have been sent to the Committee. She could not state that the affected Members were delaying the case. She was not in a position to do so, besides, she was only acting in the position and she had not been voted in by the people.
He wanted it on record that the correspondence should have been supplied to the Committee. He said that the summary of correspondence given by Adv Mayosi was not accurate, which was why the Members should have been given it immediately it had been received. There was a problem. Did one give a representation before or after one had been charged? Could the Initiator clarify that?
Regarding the matter of legal representation and whether the Committee was treating them globally or not, the horse had bolted. Dr Ndlozi explained that the resolution of the House, the Speaker, the Presiding Officer at the time, the Chairperson and the report had referred to them as EFF Members until they had been charged. The Members had been treated as a group, as a party.
According to the Schedule, the Committee could make the decision as to whether to allow representation. No request was necessary. He added that the matter of legal representation had been decided when they had been entertained via the correspondence. Those horses had also bolted. The Committee could decide to hear their legal representatives as it was a complex matter; the affected Members might even lose their salaries, according to the Schedule. The Committee should hear from the attorney as to where their clients were.
Dr Ndlozi demanded an explanation of why the correspondence had not been sent to the Committee.
The Chairperson suggested that two procedural matters had to be addressed: where were the Members; should the Committee permit the attorney of record to inform the Committee of their clients’ whereabouts? The substantive matter was whether the Committee permitted automatic legal representation. As Dr Ndlozi had said, the horses had bolted and there were was no need for further discussion on the matter of whether the attorney was acting on behalf of the clients.
Ms B Maluleka (ANC) stated that the Committee Members had to speak as Committee Members and not as representatives of the Members who had been charged. The Committee had held several meetings and the matter had not been addressed. Dr Ndlozi had asked for the letters and they had been provided.
She added that legal representation could not be given as they had not applied and the Committee was still addressing the matter of the presence of the affected Members. Members of the Committee were not yet addressing the question of representation.
Mr D Stock (ANC) addressed the question of the Acting Secretary speaking on behalf of the Committee. He noted that there were a number of letters and the Committee had met on a number of times since the commencement of the correspondence. Furthermore, the minutes stated that they had asked the Acting Secretary to act on behalf of the Committee and, likewise, Adv Mayosi had been requested to act on behalf of the Committee. Those were decisions of the Committee.
The Chairperson stated that he was aware, as the Chairperson, of the correspondence but he asked Adv Mayosi to address the Committee on why the letters had not been brought to the Committee. He repeated that, as Chairperson, he had been privy to the communications. He requested Adv Mayosi to address that particular issue.
Adv Mayosi said that her reading of the mandate and the rules was that the Acting Secretary had been mandated to pursue those matters that were administrative. The resolution had also appointed her as the Initiator. She drew comfort from the fact that the Chairperson was privy to the correspondence. She drew comfort from Rule 158(2) which stated that the Chairperson could act on behalf of the Committee should the Committee not be able to meet. The nature of litigation was that correspondence occurred and there were deadlines to respond of e.g. 24 hours, and it was not possible to call a meeting under those circumstances. She believed that it was utterly permissible for the Acting Secretary to pursue that correspondence.
The Chairperson informed Members that it was the Chairperson of the Committee, together with the staff of Parliament, who dealt with correspondence and not individual Committee Members. The Committee had appointed Adv Mayosi to act on behalf of the Committee and so she had engaged with him and dealt with the legal matters. He believed that everything was in order but the Committee had the right to over-rule all matters to date. He explained that once it was decided to discipline a Member of Parliament, the Committee did not do the administrative work – that was the job of the administrative staff, and the Acting Secretary of Parliament was acting on behalf of the Committee, taking into consideration the deliberations and decisions of the Committee. Unless Members wished to object, that matter could be laid to rest.
The Chairperson addressed the automatic right to legal representation. An application had to be made and then the Committee would decide, so there was no automatic right. The application had to be made, considered by the Committee and a decision taken. The Members had not addressed the matter of the attorneys being present in the chamber, so he suggested that the legal representations of the accused Members be given an opportunity to provide the explanation. That request did not recognise them as the legal representations of the affected Members.
Dr Ndlozi disagreed with the fact that the Committee had to hear the application for legal representation containing the reasons for doing so, prior to the hearing. According to the Schedule, the Committee was well within its rights to decide to hear the explanation from the attorneys. If that was difficult, it had to be remembered that the Chairperson had already been corresponding with the lawyers. He had not said that he could not speak to them as there had to be an application for legal representation. He had communicated with legal representations. Had the Chairperson brought the letter to him, saying that the affected Members had written to him via their lawyers and asking if he should correspond with them or say that he could not communicate via the attorney but only with Members as individuals, he, Dr Ndlozi, would have advised the affected Members to put forward an application. The Chairperson had spoken to the legal representations and told the Members to appear before the Committee via the attorneys.
The Chairperson indicated that he wished to close the matter of procedure.
Ms Peters stated that Dr Ndlozi was clearly too involved in horse racing, but the horse had not bolted. The Committee had required the staff of Parliament to deal with the administrative requirements preparing for the hearing. The Members had been served with their charge sheets and had asked their legal representations to act for them in preparation for the hearing. Regarding the hearing itself, the Committee had to determine whether to allow the Members to be represented by legal representatives who would speak on their behalf in the hearing. Anyone could request an attorney for advice but to speak for them in a hearing was another matter.
She explained that the two matters were separate. Dealing with legal representations on an administrative level was different from a legal representation in a hearing.
The Chairperson appreciated her explanation which was very well put.
Ms G Tseke (ANC) responded to the matters relating individual members of the EFF who had been charged. She referred him to the Rules of Parliament in items 7 and 8 of the Schedule on page 216:
The member has a right to be present at the hearing. The committee, initiator and the member may call witnesses and these witnesses may be questioned by the chairperson, initiator, the member or the legal representative, either directly or through the fellow member.
Members of the committee may also put questions to the member, but only through the chairperson or with the permission of the chairperson. After all the witnesses have been called, the member or
fellow member may sum up the evidence and make a presentation to the committee.
If after receiving the notice the member fails, without just cause, to attend the hearing, the committee may proceed in the absence of the member.
Ms Tseke requested that the Committee proceed without the Members.
Dr A Lotriet (DA) concurred with Ms Peters regarding the processes in respect of legal representation but also concurred that the charged Members had elected not to attend. The reasons had not been provided and it was the affected Members’ responsibility to do that. She recommended that the Committee not ask why they were not there. She proposed that the Committee continue without the Members being present.
Secondly, she suggested that the Committee should decide whether the legal representation was an automatic right according to the Schedule and whether the Committee would allow representation or not.
The Chairperson agreed that the rules stated that the Members had to present themselves at the hearing. Members had to appear physically. Dr Lotriet had recommended not seeking an explanation and he agreed that was the way to proceed. He was inclined to agree that the Committee should not seek an explanation of where they were. The issue of legal representation did not arise as there was no application so there could not be a discussion on the matter.
Dr Ndlozi wanted it on record that it was unfair. If the Committee wanted to have a fair hearing, the Committee could not ignore the matter. The decision was unfair. If the Committee wanted to have a fair hearing, it should hear the attorneys. In the communication, the attorneys had made it clear that they wanted to act as legal representatives on behalf of the Members.
He suggested that the Committee should rise above the issue and, from a point of view of fairness, allow the legal representations of the Members had to be heard. What was the harm in listening to them? There was no harm! They should listen and make up their minds and move on. They did not know if the affected Members were in the next room. The Committee had already communicated with the attorneys. A judge would be able to see the correspondence. There had been no correspondence to individual Members about the date and time of the actual hearing. He disagreed with not automatically granting the right to the legal representatives because it was unfair and requested that that be put on record.
The Chairperson noted that he had heard Dr Ndlozi group the affected Members as members of the EFF.
Dr Ndlozi was adamant that they were members of the EFF and he would speak of them as such. They had been charged precisely because they were members of the EFF. They were EFF Members of Parliament and it was the right of the Members to be called EFF Members.
The Chairperson commented that he had understood that Dr Ndlozi had not wanted the Members to be referred to as a group and that had been the reason for his comment.
Ms Peters requested that the Committee have an in camera session with the initiator.
The Chairperson suggested a 10-minute adjournment and stated that Adv Mayosi would then present her legal opinion. Thereafter, the Committee could decide the way forward.
Legal opinion on granting the attorneys of record the right to speak and legal representation
Adv Mayosi referred to item 8 of the Schedule regarding the absence of the affected Members and whether or not the Committee might proceed. Having read the item aloud, she stated that the attorneys of record were in attendance as the mouthpiece of the affected Members. Her advice was that the Committee should listen to the attorneys.
The second question had been on the question of legal representation for the purposes of the proceedings, as opposed to accepting the affected Members’ right to an attorney of record. There was no automatic right of legal representation in the hearing. The Committee could allow a Member to be represented by legal representation from an outside person as per item 3 in the Schedule:
In complex cases or cases involving complicated evidence or legal issues, and where the committee is of the view that such legal representation might be essential for a fair hearing, the committee may allow the member charged to be represented by a legal practitioner who is not a member.
She explained that the representation had to be requested by the affected Member and the application had to show the complexity of the case was such that it required legal representation. She advised that the attorneys be requested to speak. They could advise on the whereabouts of their clients and inform the Committee whether they were making an application to represent the affected Members.
Adv Mayosi advised the attorneys of record to note items 1 and 3 should be read together. If the affected Members made such an application through the attorneys, the Committee should then discuss the matter in committee.
Discussion
The Chairperson asked for anyone opposing the recommendation.
Dr Ndlozi requested that there be sensitivity to terms. When the Initiator read she had to read the actual words. She had read Members had “to apply”; the actual wording was “to request”. The Schedule did not state how that request had to be made.
The Chairperson stated that Dr Ndlozi was not fundamentally opposing the recommendation to allow the attorneys to indicate where the Members were and whether they wished to make an application on behalf of the Members.
Dr Ndlozi stated that a request for legal representation had been made on page 603. The Members had applied.
Address by Counsel on behalf of the charged EFF Members
Counsel for the charged Members introduced himself as Adv Kameel Premhid, EFF Counsel, Johannesburg Bar. In the chair behind him was his instructing attorney, Ms Angelike Charalambous, EFF Attorney, Ian Levitt Attorneys. He referred to a list of his clients on page 602, the Members who had been charged. He thanked the Committee for the indulgence the previous day when he had feared that he might have contracted the Covid-19 virus and thanked the Minister of Health, in his absence, for the excellent service received by those who came into contact with the Covid-19 virus.
Right to represent the Affected Members
Counsel said he would like to take the Committee through five points in the correspondence because a request had been made with regards to representation and the response had been equivocal at best and, at worst, not answered. He requested that indulgence as he could not present the situation unless the Committee recognised him as the representative of his clients.
He referred to the letter on page 602 which was addressed to the Powers and Privileges Committee of the National Assembly, care of the Acting Secretary of Parliament. The attorney had not engaged the Acting Secretary directly, but as an administrative official of Parliament. On page 603, that letter had asked, in paragraph 7, if “our Firm” (Levitt Attorneys) and external Legal Counsel could act on behalf of its clients. In other words, on 11 November 2020 when Levitt Attorneys came on record to engage in the process, the attorneys had asked if the firm could act on behalf of the affected Members if the hearing went ahead.
Counsel referred to the letter from the Acting Secretary on pages 605 – 606 and not dated, but sent the following day. The letter referred to the legal requirements in the Schedule. Paragraph 7 stated: “In light of these provisions and should your clients wish to be represented, your clients are advised to request (emphasis by Counsel) permission.”
He stated that no information had been provided regarding the format of a request, or application. Paragraph 7 of the Secretary’s letter ignored the content of the letter sent the previous day requesting that the firm be permitted to act on behalf of the affected Members. The request had not been left to lie by the attorneys but on page 612, a letter from the EFF Attorneys of Record dated 13 November 2020 responded to the letter of 12 November 2020 by the Acting Secretary. In paragraph 24, the attorneys state that, as the charge sheet made clear, their clients were able to make use of legal representations, irrespective of whether they be represented by external legal representatives at the envisaged hearing.” Paragraph 26 stated that the Acting Secretary had informed the attorneys that, “the hearing may or may not take place depending on the decision of the Committee of whether to accept or not the written representations of the clients.” That represented a material burden as the clients would have to go to the considerable expense of preparing for a hearing that might or might not transpire. Lastly, the clients could not make representation relating to the hearings as the decision as to whether or not the hearing would actually take place, was not yet clear to the clients.
In summary, Counsel referred the Committee to paragraphs 24, 25, 26 which were in response to something said by the Acting Secretary of Parliament on 12 November 2020 in paragraph 3 on page 605:
“The Committee is obliged to consider, and will in fact do, any representations made by your clients in relation to the matters alleged in the charge sheets, prior to it making any findings in relation to your clients. Whether or not the hearings proceed against any particular member charged, after the receipt of such written representations by the Committee, is dependent on the content of the representations made by that particular member. In short therefore, the hearings may indeed proceed after receipt of such written representations.”
Counsel stated that the point was that the Acting Secretary was saying to the attorneys to make a request to appear at the hearings that might not go ahead. He asked the Committee to put aside the fact that a request had already been made for approval to represent the affected Members. Once the Acting Secretary had said that the hearings might not go ahead, the attorneys could not ask, in advance, to represent its clients as the request might be redundant as the hearings might not go ahead.
Counsel explained that the matters of representation had been persisted with. He then referred to page 628 where the Acting Secretary said in paragraph 5(a) “… instead you insist in engaging me in lengthy letters … apparently a strategy to delay proceedings.” In paragraph 5(b), the Acting Secretary insisted that “…your clients have not addressed a request regarding legal representation…” and in paragraph 6: “I am not the Committee, and I once again reiterate that these are all procedural and substantive issues that your clients are entitled to place before the Committee for its consideration, as your clients are entitled to.”
He stated that the Acting Secretary had simply ignored the attorney’s initial request to represent the clients. The EFF could not be held responsible for communication not being sent to the Committee until the eleventh hour. It was his right to be there. He hoped that the paper trail would put the matter to rest.
Just cause
Counsel explained that why the clients were not there, emanated from the letter dated 20 November 2020 which began on page 619 and ran on for eight pages. He understood the point of request versus automatic right to external legal representation but he had demonstrated that the request had been made. However, the matter was becoming serious at that point. The letter addressed a number of procedural issues that related to the fair trial of the clients and the letter addressed several matters of substance. The Acting Secretary’s response, as previously read out, was that the Attorneys should present those issues to the Committee and not to her. He found himself between a rock and a hard place.
Counsel summarised the position. The legal representatives had come to explain, as requested, but the matter had not been entertained as the situation with respect to the request had been misrepresented. The request had been made on page 603, paragraph 7, on 11 November 2020.
He noted that Adv Mayosi had said the complexity of issues had to be laid out. That put form above substance. From the very beginning, the attorneys had been dealing with complex legal issues that affected the clients’ ‘right to a fair trial. That was a serious matter that spoke to the need for legal representation. It would be intolerable if they were not represented.
Counsel added that it also spoke to the just cause and why his clients were not in attendance in the Committee Room. If the hearing proceeded in the way in which it was unfolding against his clients without legal representation, it would be a gross abuse of procedure and substantive abuse of his clients’ rights and the complainants would have to consider whether to take Parliament under review for the conduct that had been catalogued to date.
The Chairperson responded that Counsel had not answered the question put to him. Where were the Members and why were they not at the meeting? The legal representation had not addressed that. He had addressed the first point sufficiently, i.e. an intention to apply for approval to represent the affected Members.
Counsel explained that the full explanation of why his clients could not participate in the current proceedings was reflected in the letter of 11 November 2020 on page 619 of the bundle. He was not going to read the letter. The letter explained the procedural and substantive complaints and he asked the Committee to take cognisance of those as they explained why his clients could not participate in a procedure that was not legitimate. His role was to object to the proceedings as they were continuing and the letter explained why his clients could not be there to legitimise the proceedings.
The Chairperson thanked Counsel for the clarity. He noted that the charged Members had deliberately decided not to attend.
Discussion
The Chairperson requested Adv Mayosi to give input before Members discussed the matter.
Adv Mayosi commented on statements by Counsel. She said that if the Committee considered the letters from the attorneys on record to be a sufficient request, it must deliberate on the request. Before the Committee considered that, she suggested that the Chairperson ask the legal representative of the affected Members whether the Members would be presenting oral evidence at the hearing as they had requested to submit written representations. The Committee could then deliberate on both issues.
The Chairperson understood that their written representation was in the letter running from page 619 to page 626. The Members charged were not present for the reasons stated in that letter.
Adv Mayosi requested further clarification from the legal representative as the letter appeared to be a justification of why legal representation had been requested.
Dr Ndlozi rose on a point of order. He said that the Initiator did not represent the Committee as the Members were there in the proceedings. She had to respond directly to the legal representative and request whatever it was that she needed from the legal representative.
The Chairperson suggested that Dr Ndlozi wanted to take over his role. The first point was that the Committee would look at the “request”. What he had heard was that the letter on pages 619 to 626 explained why those Members were not in attendance and that could be accepted as representation by Members.
Adv Premhid agreed with the Chairperson except for his concluding remark. The letter on page 619 were the legal objections recorded by his clients as to the legal validity of the process which justified why they were not there that day. That spoke to just cause as set out in the Schedule. Secondly, those representations could not be transformed into the written representations in terms of the charge sheet. Those were two separate matters.
The Chairperson requested confirmation of his understanding that the letter contained objections to the hearings proceeding.
Adv Premhid concurred. Regarding the second matter, he referred the Chairperson to the letter on page 608 from the Attorneys of Record to the Secretary of Parliament. The point was made on page 613 paragraph 6 that the answers to the points made by the Attorneys of Record had a material impact on the clients’ ability to submit the written representations by the extended deadline.
There were no representations from the charged Members because of the inadequacy of the responses. The way in which the hearing was being held was unlawful and to participate in that hearing would legitimate the proceedings. He respectfully added that the clients had sought certain safeguards to ensure that any process would be independent and not subject to political influence. They had also submitted what would be an acceptable process in the view of the clients on page 625 and those safeguards had to be addressed before matters could proceed. They had not sought to delay matters.
The Chairperson thanked him for the explanation and asked Adv Mayosi to address the point that the hearing was unlawful and that the Committee could not lawfully proceed with the hearings.
Adv Mayosi was uncertain as to how far she should take an argument that the hearing was unfair as she had stated the previous day that the Committee was operating within the powers of Parliament. Section 12 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act of 2004 gave the powers to the Committee to hold the hearing. That section had to be read in conjunction with what had occurred, which was that an incident had occurred on a certain date and that the Speaker had referred that incident for investigation and ultimately that incident was referred to the Committee as section 12 required. Once an incident had been referred to the Committee, the Committee was entitled to investigate it and make findings in terms of the procedure as set out in the Schedule. That was the basis on which, so far, the proceedings had occurred. She was not certain how far to take the illegality of the proceedings.
The affected Members had threatened to go to court but the threat had not materialised. Her view was that the proceedings were legitimate in terms of section 12 of the Act and the Committee was performing investigations which it was empowered to do in terms of the procedures set out in the Schedule to the Rules of Parliament.
The Chairperson stated that the Committee should respond to the demands. The main demand was that the hearings should be conducted by a retired judge. The Committee had listened to the Counsel and the Initiator, Adv Mayosi. There had been a suggestion to undertake that discussion in committee but Members could be addressed in public.
He explained that the issues were: 1. A request that the Committee had to apply itself to and 2. An objection had been raised to the hearing continuing. The Committee should consider the objections referred to and take a decision as to whether the hearings were properly constituted and whether the Committee could proceed or whether to accept the demands that a retired judge or an independent person should preside over the proceedings.
The Chairperson reminded Members that the Committee had been appointed in accordance with the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act. The Committee was following the Rules of Parliament. He wanted to listen to the Members. He did not believe that there were justifications for discussing the matter “in committee” as there was nothing seriously confidential. In simple terms, the question was whether to proceed or not.
Ms Maluleke said that on the matter of legal representation, she had a question, although she did not want to take the meeting back but she felt a need to consider it. On page 603, the letter written by the firm said “please confirm”. Was that a request? She had not seen a response to say that the Acting Secretary had confirmed or adhered to the request for legal representation.
On the question of continuing, Ms Maluleke emphasised that the Members were not in a court of law. It was a Committee to investigate an incident that happened on 11 July 2019 and it was not acceptable for the charged Members to say that they believed that there was a preconceived judgement or that they would not have a fair hearing when the hearing had not even started. If they were at the meeting, they could point to any unfairness. They could not do that from outside before the hearing started. They had already concluded that the Committee would not treat them fairly. She proposed the Committee did its duty and continued.
The Chairperson stated that there had been an intention to make a request even if it was not in the formal sense. It was a matter of interpretation as to whether it should take a particular form. He was of the opinion that the request had been made and it should be accepted. The Committee could discuss whether it was sufficiently complex to justify legal representation.
The Committee had to decide about whether to proceed. He noted that Ms Maluleke had suggested the Committee proceed, at least until the Act was challenged.
Mr Stock supported the proposal to proceed. He accepted that a request had been demonstrated and he proposed that legal representation be granted.
Dr Ndlozi agreed to the first point that a request for legal representation had been made. The legal representations were correctly in front of the Committee. Secondly, he had thought that the Initiator would deal with the actual issues in the letter. He could not address the letter directly or the Chairperson would say it was not his place. The attorneys had submitted 39 points with sub-sections regarding fair trial rights. Being properly constituted was not a response to a question of fair trial rights.
He asked if he should address the points in the letter regarding the fair trial rights. It would take a long time. That should be done by the Initiator but she had not responded to the points of a fair trial. No one had countered the arguments and said what should be done. They were not unreasonable demands and no one had said why the demands should not be met. The majority of the people on the Committee were conflicted because they were politically aligned. In terms of the laws of natural justice, the Members should not be heard by conflicted people. Were the ANC and DA Members not conflicted?
The Act gave the Committee the right to determine the proceedings so why not guarantee them a judge and ask the judge to advise the Committee. That would be fair. Dr Ndlozi agreed that the submission of explanations or representations should be permitted because of the inadequate responses of the Acting Secretary of Parliament. So, if the Committee were to get a sober, independent judge, they could have a postponement and allow them legal representation because then there would be a fair trial.
Dr Ndlozi believed that it was important to mention point 3.10 on page 624. The charged Members had grounds for saying that they were being targeted for crossing the floor. The other people named there had also crossed the floor but they were not charged. How come only the EFF had been charged? There was a situation that gave rise to the suspicion of political targeting. The names of others who had crossed the floor were listed. In the video, it was not just red overalls, but also Fish Mahlalela MP (ANC); Boy Mamabolo MP (ANC); Hope Papo MP (ANC); Khaya Magaxa (ANC); Cameron Mckenzie ( DA); John Steenhuizen (Steenhuisen) MP (DA); Natasha Mazonne MP (DA); Steve Swart MP (ACDP). According to even the evidence of the Chairperson, they had also crossed the floor.
In summary, Dr Ndlozi said that the Committee Members were conflicted. They had to accept that allegation because they were and let a judge or independent lawyer conduct the trial and give them a report. As lawmakers, they should know the law. Even a mining company knew that it could have an independent chairperson for a hearing because the company knew it was conflicted. He proposed that the Committee accept the objections and allow a fair trial by a judge.
The Chairperson accepted that legal representation had been requested by the charged Members’ attorneys and it had been agreed to. That matter had been sorted. The question at hand was whether the proceedings were illegal.
Dr Lotriet said that she found it very concerning that the Committee, its function and legality were being challenged. The Committee had been legitimately constituted in terms of the Act and the Rules of Parliament – even the Initiator had made that point. She found it rather worrying even the legitimacy and legality of the Committee was being challenged by a Member of Parliament.
On a point of order, Dr Ndlozi said that she was wrong in saying that he was challenging the legality of the Committee and its constitution. The Chairperson had opened the conversation. The Members who were charged were the ones challenging the Committee.
The Chairperson informed Dr Ndlozi that he differed with what the Member was saying but that was not a point of order.
Dr Ndlozi commented that she was lying then.
The Chairperson stated that he could not say that as it was unparliamentary.
Dr Ndlozi repeated that the Member was lying. She was telling an untruth. He asked the Chairperson to protect him or he would respond. If a person targeted him and the Chairperson did not protect him, he would have to protect himself. How could a person say at that stage that he was challenging the legality of the Committee? He was not. The Chairperson had been given a bundle. Could the Chairperson not read?
The Chairperson demanded that he apologise.
Dr Ndlozi said in apology that she was not lying.
Dr Lotriet thanked the Chairperson and stated that she did not refer to the Honourable Dr Ndlozi as “he” but referred to him as the Honourable Dr Ndlozi. She was uncomfortable with the casting of aspersions on the Members of the Committee. There were allegations that they were conflicted and would be partisan. She was uncomfortable because the Members had the function of preserving the integrity of Parliament and its Members. She concurred with the previous Member that the Committee proceed because Committee Members acted within the Act and the Rules of that House.
The Chairperson concluded that the majority of the Committee did not agree that the hearing was illegal and that the Committee should proceed as it was properly constituted. The Committee did not accept the demand that there should be a retired judge or an independent Senior Counsel. To do that would not be acting within the requirements of the Act.
He added that if there was an objection to how the Act prescribed how such a matter should be addressed, charged Members were entitled to approach the courts to set aside those provisions in the Act. At present, the Act and Rules were legally binding. The Committee would proceed in terms of the Rules of Parliament.
The hearing would proceed. The reasons he had given could be properly set out if so requested. The proper reasons could be read out the following day.
The Chairperson continued that the Committee was faced with the reality that the Members were not in attendance. The rules addressed the absence of Members. It was related to the issue of just cause. The legal representative had explained that the Members had just cause for not being in attendance.
Dr Ndlozi wished to go on record that he disagreed with the decision. It was not the Act that had to be changed, but the Parliamentary Rules. He disagreed with the decision to proceed.
Adv Mayosi stated that she wished to give some comfort to the Committee on the point raised by Dr Ndlozi. He was correct in stating that the Act constituted the Committee but Rule 154 stated how the Committee should be composed. However, the same issue had been raised in relation to the 2014 disciplinary process that the EFF had taken to the Cape High Court in 2014. The allegation was that there had been bias in the proceedings because of the composition of the Committee. The High Court was not convinced of that argument and in paragraph 23, Judge Dlodlo said that he could see no basis for the claim that the composition of the Committee was biased, unfair or unreasonable. He remained unpersuaded. The fact was that Parliament worked with Committees and it could not be that each time a Committee was given some work to do; it passed its responsibilities on to some outside body. That would be illegal and untenable.
She stated that her example addressed the question of the Committee being able to do its work as a Committee.
On the matter of just cause, Adv Mayosi stated the legal representative for the affected Members had said that their absence arose from their reluctance to legitimise the Committee as it was procedurally and substantially unfair. That referred to the constitution of the Committee and whether the Committee had pre-determined the outcome. The issue of legal representation did not arise as the Committee had accepted external legal representation. There was no case to say that written representations were not fairly considered as there were no written representations. The Committee had spent the entire day considering the procedure and had heard both sides of the story regarding procedural issues, which negated the allegation of procedural fairness. She did not believe that there was just cause for their absence. However, it was up to the Committee to make a decision.
The Chairperson stated that the Committee should adjourn and return in 45 minutes to proceed with the hearing.
He said that the Committee had been addressed on just cause but the Initiator had said there was no just cause for charged Members being absent. The Members should have been there. The legal representative had been concerned with just cause but the Committee did not agree that there would be prejudice so the Committee would proceed after lunch.
He invited legal Counsel to make concluding remarks.
Adv Premhid informed the Committee that in light of the decision, he was instructed by his clients that the Act and the Rules of Parliament would be imminently challenged in the Cape High Court.
He requested leave not to attend after lunch as he had been instructed not to legitimise the hearings.
Dr Ndlozi said if the Committee accepted that the charged Members had legal representation, one could not say that they were not in attendance. If the Committee accepted the legal representation, then they were not absent. They did not have to be in attendance as their legal representatives were in the meeting. The Committee would proceed but the affected Members were withdrawing because they did not agree with the trial. The question of absence did not arise.
The Chairperson said that was Dr Ndlozi’s view but the correct view was that the Members had to be physically there. The Committee had accepted that if they participate, they could have legal representation.
Dr Ndlozi asked where in the Rules it said that the Members had to physically be there
The Chairperson stated that Dr Ndlozi was in contravention of the Rules of Parliament as he was not permitted to argue with the Chairperson. The legal counsel for the affected members was excused and the Committee adjourned for lunch.
On return the Chairperson requested the Initiator to commence the proceedings.
Reading of the charges
Adv Mayosi stated that if a Member were present, he or she could plead guilty or not guilty to the charge. In the event of the Member not being in attendance, the Chairperson would be required to enter a plea of “not guilty” to each charge.
Adv Mayosi proceeded to read all the charges against all the Members of Parliament charged (page 498 of the bundle of documents). The Chairperson pleaded not guilty to each charge.
The Members charged were:
Khanya Ceza MP;
Makosini Chabangu MP;
Ntokozo Hlonyana MP;
Jeanet Komane MP;
Thokozani Langa MP;
Sindile Madlingozi MP;
Sam Matiase MP;
Rebecca Mohlala MP;
Mothusi Montwedi MP;
Thembi Msane MP;
Dumisani Mthenjane MP;
Nazier Paulsen MP;
Andries Shembeni MP;
Mathapelo Siwisa MP;
Primrose Sonti MP; and
Lorato Tito MP.
Adv Mayosi stated that brought to a close Step 6 of the proceedings. She requested an adjournment for the day in order to start afresh in the morning.
Dr Ndlozi opposed the adjournment.
The Chairperson agreed that the hearing could continue.
Leading of Evidence
Adv Mayosi read two pieces of evidence into the record. The evidence consisted of video footage and a Hansard record. She read the affidavits of those who had produced the material:
- Affidavit on page 3 of the bundle by an editor of the Hansard, Ms Lesley Anne Brian.
- Affidavit on page 97 of technical mixer/photographer in Parliament Media Centre, Ms Sinivuyo Tshomela
- Affidavit on page 99 of technician in Parliament Media Centre who set up the video recording, Mr Zonwabele Mngese.
The Chairperson swore in the first witness, Mr Collen Mahlangu, in accordance with Rule 168 of the parliamentary rules.
Presentation of evidence
Witness: Collen Mahlangu
Mr Mahlangu stated that his job was that of Under-Secretary of the National Assembly Table staff which made him the manager responsible for the sittings in the National Assembly. His job was to ensure that sessions of the House ran smoothly. He managed documentation and prepared everything on the day of a sitting. He was responsible for advising the Presiding Officers on rulings and other matters. He had been a manager since 2014. He had been a junior procedural officer prior to that. He explained that a Mini-Plenary worked on behalf of the main House as more than one Mini-Plenary could occur at a time to process the business of the House more quickly. Three Mini-Plenaries were generally held at a time. The rules that applied were exactly the same as the rules that applied in the House of Assembly. The current rules, i.e. the 9th Edition of the Rules of Parliament, were applicable at the time of the incident.
Mr Mahlangu was on duty in Committee Room E249 on 11 July 2019 when the Public Enterprises Budget Vote was to be delivered by the Minister of Public Enterprises, Minister Pravin Gordhan.
Adv Mayosi explained that she would go through the video footage of the incident with the witness, frame-by-frame. (Video footage: Debate on Vote: Public Enterprise 11 July 2019 in Committee Room E249) (All page references are to the bundle of documents relating to the proceedings).
Mr Mahlangu identified himself in the video prior to commencement of the sitting, as well as EFF Members: Mr Sam Matiase, Mr Nazier Paulsen, Ms Ntokozo Hlonyana, Mr Khanya Ceza, Mr Makosini Chabangu, Mr Dumisani Mthenjane, Mr Thokozani Langa, Ms Thembi Msane, Ms Rebecca Mohlala, Ms Primrose Sonti and Mr Sindile Madlingozi.
Adv Mayosi required him to compare the Members identified to their photographs in the bundle of documents.
Video: The Minister of Public Enterprises, Mr Pravin Gordhan appears on the video and is invited to the podium by the Presiding Officer.
Adv Mayosi and Mr Mahlangu engaged on what occurred on the video: Mr Matiase rises on a point of order in terms of Rules 92(2) and 78 but is told by the Presiding Officer that the matter is not a point of order. The Presiding Officer and Mr Matiase discuss the point of order and whether it was a point of order or a debating point.
Adv Mayosi: Which Rule regulates points of order?
Mr Mahlangu: Rule 92(2)
Advocate Mayosi: Go to page 321.
Mr Mahlangu: Rule 92(2) A point of order must be confined only to a matter of parliamentary procedure or practice, or a matter relating to unparliamentary conduct, as defined, and must be raised immediately when the alleged breach of order occurs.
Adv Mayosi: Mr Matiase continues despite the Presiding Officer declaring that it was a point of debate. Can you comment, in terms of your knowledge of the rules, on the fact that he was continuing despite it not being a point of order?
Mr Mahlangu: Rule 92 (11): The presiding officer’s ruling on a point of order is final and binding, and may not be challenged or questioned in the House.
Adv Mayosi: What did Rule 92 (12)(a) say?
Mr Mahlangu: Rule 92(12)(a) is the remedy for a dissatisfied Member: A member who is aggrieved by a presiding officer’s ruling on a point of order may subsequently in writing to the Speaker request that the principle or subject matter of the ruling be referred to the Rules Committee.
Adv Mayosi: In other words, if a Member was not satisfied with the ruling of a Presiding Officer, that Member had a remedy in Rule 92(12)(a).
Mr Mahlangu: That is correct.
Advocate Mayosi: To your knowledge, did Mr Matiase invoke Rule 92(12)(a)?
Mr Mahlangu: No, Mr Matiase had not invoked the remedy available to him, nor did any of the other Members with him. Some of the other political parties did, sometimes, use the remedy. One of the Ministers had invoked the remedy and that was currently being discussed.
Adv Mayosi: I heard you say that Mr Matiase did not invoke Rule 92(12)(a), nor did any of the other charged Members. Is that correct?
Mr Mahlangu: That is correct.
Further footage was shown.
Adv Mayosi: The Presiding Officer informed Mr Matiase at least three times that she had ruled that it was not a point of order and yet Mr Matiase continues. What is your comment on that conduct? Was it in line with the rules?
Mr Mahlangu: The conduct was clearly against the rules. A ruling had been made by the Presiding Officer but he did not accept it. He continued hammering on it so that means he has not accepted the ruling. It was not a point of order because it was not related to a parliamentary procedure. The rule was very clear: it had to relate to procedure or practice. Alternatively, it had to relate to unparliamentary conduct. What he was raising had something to do with the Public Protector and had nothing to do with a parliamentary procedure. The Minister had just greeted Members and so that point of order could not have been entertained. It is gross disorderly conduct.
Adv Mayosi: Can I refer you to Rule 69 on page 211 which deals with gross disorderly conduct?
Members may not engage in grossly disorderly conduct in the House and its forums, including —
(a) deliberately creating serious disorder or disruption;
(b) in any manner whatsoever physically intervening, preventing, obstructing or hindering the removal of a member from the House who has been ordered to leave the House;
(c) repeatedly undermining the authority of the presiding officer or repeatedly refusing to obey rulings of the presiding officer or repeatedly disrespecting and interrupting the presiding officer while the latter is addressing the House;
Mr Mahlangu, what is your comment on his conduct here?
Mr Mahlangu: Mr Matiase’s conduct was seriously questionable because he kept on saying to the Chair that she had not listened to the point of order. He repeatedly refused to obey the Presiding Officer. It was not just once but repeatedly. The point did not relate to a parliamentary procedure or practice. The Member was engaging in grossly disorderly conduct.
Further footage was shown.
Adv Mayosi: previously in your evidence, you identified Mr Matiase, Mr Paulsen, Mr Langa and Ms Msane. Who was the lady next to Ms Msane?
Mr Mahlangu: That is Ms Mohlala.
Adv Mayosi: Please turn to the photo album, page 494. Is that the lady- Ms Rebecca Mohlala?
Mr Mahlangu: The hairstyle is different but it is her, Ms Rebecca Mohlala.
Further footage was shown.
Adv Mayosi: At this point, the Presiding Officer tells Mr Matiase to take his seat. If Mr Matiase, nevertheless, wanted to raise the point that he was raising, and the Chair had ruled it was not a point of order as set out in Rule 92(12)(a), do the rules provide him with another remedy if he wanted to make allegations of the kind that he was making against the Minister?
Mr Mahlangu: There was a remedy in Rule 85(2).
Adv Mayosi: Can we go to page 318:
Mr Mahlangu: Rule 85 Reflections upon members, the President and Ministers or Deputy Ministers who are not members of the Assembly
(2) A member who wishes to bring any improper or unethical conduct on the part of another member to the attention of the House, may do so only by way of a separate substantive motion, comprising a clearly
formulated and properly substantiated charge that in the opinion of the Speaker prima facie warrants consideration by the House.
What the Member was alleging was that the Minister was a constitutional delinquent. If he wished to pursue the matter, he had to bring a separate substantive motion with a properly formulated and substantiated charge that in the opinion of the Speaker prima facie warranted consideration by the House.
Adv Mayosi: Did Mr Matiase submit a separate substantive motion in regard to his allegations relating to the Minister?
Mr Mahlangu: No, he did not.
Adv Mayosi: Did any of the other Members who rose on that point of order submit a separate substantive motion in regard to the allegations relating to the Minister?
Mr Mahlangu: No, they did not.
Further footage was shown.
Adv Mayosi: Before I ask you to comment on the fact that Ms Hlonyana was rising on the same point of order that had been disallowed, I want you to confirm the persons in the frame: Mr Matiase, Ms Mohlala, Ms Msane and Mr Langa.
Mr Mahlangu: That is Ms Ntokozo Hlonyana rising on the same point of order.
Adv Mayosi: Another face has just appeared on the right hand side. Do you recognise that person?
Mr Mahlangu: It looks like Ms Sonti. It is definitely Ms Sonti.
Advocate Mayosi: Go to page 496 in the photo album.
Mr Mahlangu: Yes, it is Ms Nokulunga Primrose Sonti
Adv Mayosi: Can you comment on the fact that Ms Hlonyana was rising on the same point of order that
Mr Matiase had risen upon and had been ruled on by the Chair?
Mr Mahlangu: The Presiding Officer had ruled more than once on the same point of order and Ms Hlonyana said she was rising on that point and wanted a ruling. She probably did not recognise the Chair’s ruling and she wanted to emphasise that the point had to be ruled on, although it had been ruled on more than once.
The Chairperson requested Mr Mahlangu to raise his voice.
Adv Mayosi: referred Mr Mahlangu to page 322 of the bundle. Rule 92(8)
(8) No member may raise a point of order again or a similar point of order, if the presiding officer has ruled that it is not a point of order or that the matter is out of order.
(9) Members may not disrupt proceedings by raising points of order that do not comply with this rule.
Are those rules triggered at all by Ms Hlonyana’s conduct?
Mr Mahlangu: That is my opinion. No one may raise a point of order that had been ruled upon. She is specifically saying that Mr Matiase had already risen on the matter and she had to raise the matter again.
Adv Mayosi: And in regard to your earlier evidence about who was in the frame. It is Ms Hlonyana, Mr Matiase, Ms Mohlala, Ms Msane and Mr Langa.
Further video footage was played.
Adv Mayosi: She says in very clear terms: “This man is not going to speak here today. It is not going to happen.” Is there anywhere in the Rules where members are allowed to stop another Member in this way?
Mr Mahlangu: It was not in the rules. It could not be allowed that you are told openly that you are not going to give a speech. As a Minister, he was doing his work. He was delivering his Budget. There is nowhere in the Rules that could prevent him from doing that. It was the first time that I had seen such a thing.
Adv Mayosi: In your earlier evidence, you said that Mr Matiase had two remedies: the 9(12)(a) and Rule 85(2). Could Ms Hlonyana have used the same rules as a remedy?
Mr Mahlangu: If Ms Hlonyana was complaining about the conduct of the Minister outside of the House, she could have used Rule 85(2).
Further footage was played.
Adv Mayosi: Ms Hlonyana was quite emphatic. “We are not going to leave and he is not going to speak.” Did that invoke Rule 69 on page 311 which regulates or describes grossly disorderly conduct?
Members may not engage in grossly disorderly conduct in the House and its forums, including —
(c) repeatedly undermining the authority of the presiding officer or repeatedly refusing to obey rulings of the presiding officer or repeatedly disrespecting and interrupting the presiding officer while the latter is addressing the House;
In persisting with her allegations, did Ms Hlonyana’s conduct trigger the rule against grossly disorderly conduct?
Mr Mahlangu: If a Member says that another Member is not going to talk to the House, the impression I was getting was that she was going to make sure, physically or by some other means, make sure that he does not deliver his speech.
Adv Mayosi: Regarding the stance that Ms Hlonyana has clearly adopted, i.e. that this man is not going to speak here today and so on, can you comment on her attitude in respect of what Rule 92(9) on page 322 says?
Mr Mahlangu: Rule 92(9): Members may not disrupt proceedings by raising points of order that do not comply with this rule.
The matter had moved from a point of order with Mr Matiase to a position where they were not going to let the Minister speak there that day. He was not going to address them. I do not believe it had anything to do with any unparliamentary conduct or unparliamentary language. As far as the Rules are concerned, such a thing is not catered for. That was a clear defiance of the ruling of the Presiding Officer. By suggesting that he was not going to speak, the Member was probably threatening the House with disruptions.
Adv Mayosi: She was making it clear that the business of the day was not going to happen.
Mr Mahlangu: Yes. The only business that day was the Minister’s Budget Vote but the Minister would not be allowed to deliver his speech. I do not recall any time when a Minister was prevented from delivering his budget speech. If a Minister was not available, the Deputy Minister delivered the budget speech. That was the basis of the debate that day.
Further footage was played.
Adv Mayosi: This Member said she was rising on the very same point that Mr Matiase had risen on. Was that a problem?
Mr Mahlangu: Again this was in contravention of the Rules. We mentioned Rule 92(8):
No member may raise a point of order again or a similar point of order, if the presiding officer has ruled that it is not a point of order or that the matter is out of order.
Also, (9): (9) Members may not disrupt proceedings by raising points of order that do not comply with this rule.
The rules are clear that if a Member had a problem, there is a rule that allowed her to raise her complaint.
Adv Mayosi: Can we identify the people in that frame?
Mr Mahlangu: That one standing is Ms Komane.
Adv Mayosi: We have to verify the persons. Is that Ms Jeanet Komane on page 493?
Mr Mahlangu: Yes, that is her.
Adv Mayosi: Who is the gentleman sitting next to her, sharing a bench with her?
Mr Mahlangu: Mr Shembeni.
Adv Mayosi: Is that Mr Henry Andries Shembeni on page 493?
Mr Mahlangu: Yes, it is.
Adv Mayosi: Who is the lady with long hair in red clothes, behind Mr Shembeni? Can you recognise her?
Mr Mahlangu: I don’t know. I can’t recognise her now.
Adv Mayosi: And the lady sitting on the left of Mr Shembeni?
Mr Mahlangu: That is Dr Thembekwayo.
Adv Mayosi: That is Dr Thembekwayo on page 497 of the photo album?
Mr Mahlangu: Yes, that is Dr Thembekwayo.
Adv Mayosi: And the lady with red overall and the multi-coloured ethnic headdress?
Mr Mahlangu: That is Tito.
Adv Mayosi: Lorato Florence Tito on page 497?
Mr Mahlangu: Yes.
Adv Mayosi: And the gentleman sitting next to her?
Mr Mahlangu: Mr Molaotse. He is no longer a Member of Parliament.
Further footage was played.
Adv Mayosi: That is Mr Shembeni drinking the water?
Mr Mahlangu: Yes.
Further footage was played.
Adv Mayosi: The fact that Ms Komane had been so persistent, at the risk of being obvious, given your evidence so far, any comment on her conduct as the Chair had ruled?
Mr Mahlangu: It was the very same thing as the previous Members had done: rising on the very same point of order that had been ruled on by the Presiding Officer. The same rules apply. It is clearly against the rules. If she is repeating the allegations, that is against Rule 85(2). She is also disregarding the authority of the Chair. The ruling of the Chair on the point of order was clear.
Further footage was played.
Adv Mayosi: Can you identify the Members in that frame? You earlier said that that was Mr Paulsen with the water bottle in front of him, right?
Mr Mahlangu: Yes and Mr Mthenjane.
Adv Mayosi: Who is sitting behind them?
Mr Mahlangu: That is Montwedi. And the one with her hand up is Ms Mokause but she is no longer a Member of the National Assembly. Behind her is Ms Siwisa.
Adv Mayosi: Is that Ms Siwisa at the bottom of page 496 of the bundle?
Mr Mahlangu: Yes. That is her in the white collar.
Adv Mayosi: Who is in front of them?
Mr Mahlangu: That is Chabangu. And Ceza.
Adv Mayosi: Is Chabangu the Member whose hand we saw at the beginning? We can go to page 492.
Mr Mahlangu: Yes. Makosini Chabangu.
Further footage was played.
Adv Mayosi: I just want to confirm that I have all the names.
Further footage was played
Adv Mayosi: It becomes very tricky from this point. As we can see, Mr Matiase is now standing by the podium and Mr Ceza appears to be approaching the podium. What is your comment on what they are doing?
Mr Mahlangu: They are crossing the floor and in terms of the rules. There is a clear rule that Members might not cross the floor. But there is a physical concern because they are approaching the Minister and there is a lot of talking but whether they are using inappropriate language, one could not say as one could not hear.
Adv Mayosi: There is a lot happening in the frame, but, firstly, can I refer you to Rule 64(d) on page 310 of the bundle?
Conduct of members
64. Members must at all times accord the presiding officers of the National Assembly and members due respect and conduct themselves with dignity and in accordance with the decorum of the House and are required —
(d) not during proceedings to pass between the Chair and the member who is speaking, nor between the Chair and the Table, nor to stand in any of the aisles or cross aisles, nor to cross the floor of the House in front of the benches;
Would you say that what Mr Matiase and Mr Ceza were doing was against that rule?
Mr Mahlangu: Yes, what the Members were doing was totally against the rules. There is a general practice that started a long time ago. It was a precedence in the House and it was subsequently included in the 9th Edition of the Rules, but they are ignoring that rule and breaking it.
Adv Mayosi: There are two other gentlemen on the ruling party side who are on their feet, although they have not yet crossed the floor. Can you identify them? One is wearing a trench coat and has his hands in his pockets.
Mr Mahlangu: That is Hope Papo and Fish Mahlalela.
Adv Mayosi: Who is the one in the white shirt standing up?
Mr Mahlangu: That looks like Mr Mamabolo.
Adv Mayosi: There is a lady on what you said was the Opposition side, with long blonde hair. Who is that?
Mr Mahlangu: Ms Mazzone, Chief Whip of the Opposition.
Adv Mayosi: You are also on your feet. What is happening there?
Mr Mahlangu: No, I could see the commotion in the House and my only worry was that if there was violence, it could take too long to call the sergeant-at-arms so that he could say to call the parliamentary protection services. The procedure was that the sergeant-at-arms was the first one to be called and he had the option to take them out. The other thing only came when the Presiding Officer called the protection services. The sergeant-at-arms could not be seated at that time.
Adv Mayosi: The Presiding Officer had already called the sergeant-at-arms.
Mr Mahlangu: Yes, she had.
Further footage was shown.
Adv Mayosi: It gets more complicated. You are obviously now standing by the Presiding Officer’s chair. What are you doing there?
Mr Mahlangu: I advised the Presiding Officer to call out the names of the Members who were to be removed and not ask for Members at large to be removed as some had not contravened the rules. I could see that the situation was out of control, so I advised her to call the parliamentary security services to come and assist the sergeant-at-arms. The sergeant-at-arms had to report whether the Member who had broken the rules was willing to go or not, but there was no time.
Adv Mayosi: The blonde lady, Ms Mazzone ,was also on the floor, also approaching the podium. Correct?
Mr Mahlangu: Correct.
Adv Mayosi: Hope Papo was also on the floor. Correct?
Mr Mahlangu: Correct.
Adv Mayosi: Who is the one in the tan suit and red tie?
Mr Mahlangu: I cannot see.
Adv Mayosi: Does the name Mr Khaya Magaxa ring a bell?
Mr Mahlangu: Yes. He is a Member and a whip.
Adv Mayosi: The Minister mentioned him.
Committee: He is Chairperson of the Public Enterprise Committee.
Adv Mayosi: There were two ladies on their feet: one in a dark blue and the other in cream.
Mr Mahlangu: I can’t put names to their faces.
Adv Mayosi: I am trying to identify others who are on the floor in this frame. Mr Matiase, Mr Ceza and is that Ms Hlonyana who is approaching and seems to be pointing. And you identified the one standing and almost on the floor as Ms Mohlala.
Mr Mahlangu: Yes, that is right.
Adv Mayosi: You said that you were advising the Presiding Officer that the situation was too serious for the sergeant-at-arms to be able to deal with it?
Mr Mahlangu: Yes. That is right.
Further footage was played.
Adv Mayosi: It is getting more complicated as there were more people on the floor. Ms Mazzone is on her feet but she is looking at a gentleman who appears to be coming from the benches on her side. Who is that in a dark coat?
Mr Mahlangu: I can’t recognise him.
Adv Mayosi: Is that Mr Steenhuisen that she appears to be looking at?
Mr Mahlangu: Yes, with the dark hair.
Adv Mayosi: Do you see that Mr Paulsen has joined the others rather quickly.
Mr Mahlangu: Yes, on the other side.
Adv Mayosi: Ms Mohlala is up from her chair.
Mr Mahlangu: Yes, she is approaching the floor.
Adv Mayosi: The two gentlemen in the back in the red outfits are Mr Mthenjane and Mr Langa.
Mr Mahlangu: Yes. Mr Langa is the older one.
Adv Mayosi: The Presiding Officer has now called security. Mr Mamabolo is next to the podium. Mr Magaxa is also next to the podium.
The video is played for a moment.
Adv Mayosi: Is the gentleman in the grey suit, Mr Swart?
Mr Mahlangu: Yes, of the ACDP.
Advocate Mayosi: You earlier identified the lady in the red doek as Ms Msane. Ms Mohlala is crossing the floor in front of her. Ms Hlonyana is still close. Mr Matiase, Mr Paulsen, Mr Mthenjane, Mr Langa.
Mr Mahlangu: Correct.
Adv Mayosi: Who is the gentleman on the left in the dark suit?
Mr Mahlangu: It looks like the Deputy Minister, Phumulo Masualle.
Further footage played.
Adv Mayosi: Is that Mr Montwedi crossing the floor? Ms Mohlala is crossing the floor.
Mr Mahlangu: Yes, that is correct.
Brief footage played.
Adv Mayosi: There is another gentleman going towards the podium. Who is that?
Mr Mahlangu: It looks like Mr Madlingozi.
Brief footage played.
Adv Mayosi: Some ladies have now joined the floor.
Mr Mahlangu: It looks like Ms Mokause, Ms Sonti and Ms Tito.
Brief footage played.
Adv Mayosi: Who is that lady in red?
Mr Mahlangu: Ms Molautsi.
Adv Mayosi: Yes, you said Ms Molautsi is no longer a Member.
Brief footage played.
Adv Mayosi: The Member raising his hand – is that Mr Montwedi?
Mr Mahlangu: Yes, it is Mr Montwedi.
Adv Mayosi: Who is the person in the black robe who now appears?
Mr Mahlangu: That is the Sergeant-at-Arms. He was acting at the time; he is still acting. Sorry, he was the Deputy Sergeant at Arms at the time last year at that time. Mr Tebello Maleme.
Adv Mayosi: Who are the two ladies approaching from the benches of the ruling party? They are now on the floor.
Mr Mahlangu: The tall one on the left wearing a floral … that is Ms Manganye. The other two …I can’t put names to their faces.
Brief footage played.
Adv Mayosi: Is that Ms Siwisa between the two tall gentlemen?
Mr Mahlangu: That is her next to the two gentlemen from parliamentary protection services.
Adv Mayosi: There are now a whole lot of people in civilian clothing on the floor. Who are they?
Mr Mahlangu: They are the parliamentary protection service members who had been called in by the Chair to assist the Sergeant-at-Arms.
Brief footage played.
Adv Mayosi: Is that Mr Shembeni who is appearing at the back?
Mr Mahlangu: Yes, that is Mr Shembeni and Ms Tito.
Brief footage played.
Adv Mayosi: Is that Mr Mthenjane there?
Mr Mahlangu: The one in front of Hlonyana.
Adv Mayosi: Mr Shembeni, Mr Paulsen, Mr Langa, Ms Msane, Ms Tito, Ms Sonti….is that correct?
Mr Mahlangu: Yes.
Brief footage played.
Adv Mayosi: Looking at that scene, what is happening there?
Mr Mahlangu: There is pushing and shoving. It could be from the other security who want them to leave the house immediately.
Adv Mayosi: So, the civilian clothes are parliamentary security? Are they removing the people dressed in red?
Mr Mahlangu: Yes.
Adv Mayosi: Why are they just removing the people dressed in red and not those other ones that we said were also on the floor?
Mr Mahlangu: The direction given to the security officers was: “Please remove Members of the EFF” and so they went to the floor. From the video, it looks like Members of the Opposition (EFF) are resisting. They are the ones who created disorder in the House. The business of the House must carry on but they don’t want it to, and the Chair has made a ruling. She said, “Please leave.” I think that she was particular at some stage.
Adv Mayosi: I want to confirm with you the names of the Members in the group. Starting on the right hand side: Mohlala, Shembeni, Msane, Siwisa, Madlingozi, Ceza, Hlonyana, Montwedi, Paulsen, Chabangu, Lange, Mthenjane, and Matiase - next to Mr Paulsen.
Mr Mahlangu: That is correct.
Adv Mayosi: You said that they were not moving out voluntarily. There was a push-back.
Mr Mahlangu: Yes. You can see one particular Member there. The way she is balanced shows that she is using her power. The rest are also pushing and shoving.
Adv Mayosi: In respect of that conduct of pushing, can I refer you to rule 69 that talks about grossly disorderly conduct. Does it implicate rule 69(b):
in any manner whatsoever physically intervening, preventing, obstructing or hindering the removal of a member from the House who has been ordered to leave the House.
Mr Mahlangu: Yes, that is correct in terms of rule 69(2): (Members may not act) in any manner whatsoever physically intervening, preventing, obstructing or hindering the removal of a member from the House who has been ordered to leave the House.
Brief footage played.
Adv Mayosi: Is that Mr Chabangu on your extreme left?
Mr Mahlangu: Yes. Extreme left.
Brief footage played.
Adv Mayosi: Does Mr Chabangu appear to be experiencing quite a bit of manhandling?
Mr Mahlangu: Yes.
Further footage played. Sounds of a commotion and screaming.
The Chairperson requested Adv Mayosi to replay the video from the point where Mr Matiase left his seat and approached the Minister.
The video footage was played.
Adv Mayosi: Mr Mahlangu, can I refer you to rule 73(5) on page 313?
Mr Mahlangu: It talks to the conduct of Members when being removed from the House.
No member may, in any manner whatsoever, physically intervene in, prevent, obstruct or hinder the removal of a member from the Chamber in terms of these rules.
Adv Mayosi: What we observed when members of the security services were pushing that way, there were Members of the House pushing the opposite way.
Mr Mahlangu: Members pushing the opposite way to stop them being removed.
Adv Mayosi: What happened after the Members were removed?
Mr Mahlangu: In terms of the Rules, which are specific, after the Members have been removed from the House, they are removed for the remainder of the day and they must leave the premises but when we (Mr Mahlangu and colleague) spoke to the Sergeant-at-Arms, we were informed that the Members had not left but had gone to other debates. They had sort of disappeared. Due to (a lack of) capacity, the security services could not remove them. They continued to participate in other proceedings. They did not come back to that session.
Adv Mayosi: Did you remain in the House until the session ended?
Mr Mahlangu: No. My session was for one hour and then others took over but I checked that the Members had not come back to the session.
Adv Mayosi: Clearly the business of the day proceeded.
Mr Mahlangu: The business proceeded and every Member that should have, participated. Those who were not speaking were silent.
Adv Mayosi: Could the Minister do what he came to do while the Members were there, before they were removed?
Mr Mahlangu: In my observation, it had been impossible for the Minister to continue his business while the Members were there. 1. They were making (a) noise. 2. They were intimidating him physically. He could not have done so. You can see that the podium was a makeshift one and the sound was not so powerful. Remember that it had to be recorded and heard on television. He would not have been able to successfully present his speech.
Adv Mayosi: And what of the Presiding Officer? Was she able to perform her function while the Members were there?
Mr Mahlangu: The Presiding Officer had managed to stamp her authority. She made her ruling and stuck by it. If she had changed her ruling that would have caused a disturbance.
Adv Mayosi: In your earlier evidence, you said that her authority was challenged and undermined.
Mr Mahlangu: Her authority was challenged and undermined. That is correct. She understands the Rules and she managed to apply them.
Adv Mayosi: Those are all the questions that I have for Mr Mahlangu but, of course, the Chair may wish to engage with Mr Mahlangu in terms of item 7 of the Schedule.
Concluding remarks
The Chairperson stated that the Committee would adjourn the hearing at 17:30 and continue the following day. The Presiding Officer would appear the following day.
Members of the Committee could question the witness through the Chairperson the following day as Mr Mahlangu would return to the witness box.
Audio
Documents
- Media Statement: Powers and Privileges Committee Commences With Hearings on IncidentTHAT Took Place on 11 July 2019
- List of affected Members - incident of 11 July 2019 at Public Enterprises Budget Vote Debate.
- Powers and Privileges Committee Hearings
- Notice of Hearing: Ms Annacleta Mathapelo Siwisa MP
- Notice of Hearing: Mr Henry Andries Shembeni MP
- Notice of Hearing: Mr Mogamad Nazier Paulsen MP
- Notice of Hearing: Mr Dumisani Fannie Mthenjani MP
- Notice of Hearing: Mrs Thembi Portia Msane MP
- Notice of Hearing: Mr Mothusi Kenneth Montwedi MP
- Notice of Hearing: Mrs Mathibe Rebecca Mohlala MP
- Notice of Hearing: Mr Nthako Sam Matiase MP
- Notice of Hearing: Mr Brian Sindile Madlingozi MP
- Notice of Hearing: Mr Thokozani Makhosonke Langa MP
- Notice of Hearing: Ms Rosina Ntshetsana Komane MP
- Notice of Hearing: Ms Ntokozo Khonziwe Fortunate Hlonyana MP
- Mr Makosini Mishack Chabangu MP
- Notice of Hearing: Mr Khanya Ceza MP
- Notice of Hearing: Mrs Lorato Florence Tito MP
Present
-
Mapulane, Mr MP Chairperson
ANC -
Dlakude, Ms DE
ANC -
Lotriet, Prof A
DA -
Maluleke, Ms B
ANC -
Ndlozi, Dr MQ
EFF -
Peters, Ms ED
ANC -
Stock, Mr D
ANC -
Tseke, Ms GK
ANC
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