Consideration of Request to subpoena NA Speaker as a witness

Meeting report

Consideration and adoption of minutes

Outstanding Committee minutes were considered and adopted. 

Matters arising

Adv Victor Ngaleka, Procedural Advisor, National Assembly, noted that at the meeting of 26 September, the Committee was updated on two matters that were referred to the Committee. These were in relation to Mr M Zwane (ANC) and the State of the Nation Address. The Committee agreed that the parliamentary administration could obtain the services of an initiator for Mr Zwane. An initiator was sought, Adv Zuku Mapoma, who was consulted yesterday on this matter. The team was now waiting for a submission of the notice of the hearing, including the charge against the Member and proposed possible dates for the hearing.

Regarding the SONA incident of 9 February, the team obtained an initiator, Adv Anton Katz, Senior Counsel, and requested to be consulted by Monday, 23 October 2023.

The Chairperson welcomed the input and indicated that the matters were straightforward and that the two tasks had been executed properly.

Request to subpoena the Speaker of the National Assembly as a witness

Mr Andile Tetyana, Parliamentary Legal Advisor, indicated that at the meeting on 27 September 2023, the team was requested to interact with the legal teams of the affected Members. A case management meeting was arranged, which took place on Wednesday, 4 October 2023. During the interaction, the counsel for the other side enquired from the initiator whether the Committee would be calling the Speaker of the National Assembly as a witness.

The response from the initiator was that, at this stage, there was no need to call the Speaker as a witness. The Committee can determine this. So, having considered all the relevant evidence, the initiator believed it was unnecessary to subpoena the Speaker or call the Speaker as a witness.

Members would recall the incident of 30 August 2022; the Committee sent sworn statements and affidavits to Members about that incident.

Six witnesses will be called by the initiator, including Mr Masibulele Xaso, Secretary to the National Assembly; Mr Manele, Acting Sergeant at Arms; and Mr Makana, the Chamber Support Officer for Parliamentary Protection Services.

The first witness to testify will be Mr Nigel Van Ster, Control Language Practitioner from the Hansard Reporting Unit. His responsibility will be to verify the authenticity and reliability of the audio. Ms Lesley Brian, another Control Language Practitioner from the same unit, will also be called upon to affirm the authenticity, reliability, and accuracy of the unrevised Hansard. The last witness will be Mr Titus Mmekoa, Manager of Broadcasting, Audio Visual, and Technical Support. His role will be to verify the footage.

On 12 October 2023, attorneys representing the affected Members sent letters to the Committee Chairperson. The Chairperson received these letters at 5:55 PM and 6:00 PM, respectively. In the fourth paragraph of these letters, a request was made to summon the Speaker and confirm it by 5 PM the following day. It is unclear what the Committee's response to this request was.

The challenge at hand revolves around Sections 14 - 17 of The Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act. According to Section 14(2)(a), a Joint Committee is authorised to summon anyone to appear before it and provide evidence, take an oath or affirmation, produce documents or require any person or institution to report to it. Section 14(2)(b) states that any person who is called to give evidence should be issued a notice by the Secretary of Parliament, as per the instruction of the Speaker of the National Assembly or the Chairperson of the NCOP, subject to Subsection one or 56(A), that relates to evidence and information in respect of the NCOP. The Chairperson of the relevant Committee, acting in accordance with the Committee's resolution, not the concurrence of the Speaker. There is a request to ask the Committee to summon the Speaker, which strikes the heart of the rule of law.

He drew attention to Section 57(1)(a) and (b) of the Constitution: the National Assembly has the power to determine and control its internal arrangements, proceedings, and procedures. Rule 167(f) of the NA Rules reflects this provision. Section 57(1)(b) states that the National Assembly can establish rules and regulations governing its operations with regard to representatives, participatory democracy, accountability, transparency, and public involvement. Rule 24(1) stipulates that the Deputy Speaker must function as the Speaker when the Speaker is absent for any reason. This applies to situations where there is a real or perceived conflict. The argument is that the Speaker cannot agree with herself if the Committee summons her. If the Speaker exercises this power, it will result in a conflict because the legislation pertains to the Speaker or the Chairperson. Therefore, the Speaker cannot subpoena herself.

There are many occasions that the Speaker has recused herself on matters that pertain to her, for examples, motion of no confidence. This view is unfounded and is not agreed to.

Rule 360 says any person may be summoned to appear before the House, a Committee, or other Forum of the House in accordance with Sections 14 to 17 of the Powers and Privileges Act and these Rules.

If Members review the list of witnesses submitted, the evidence related to the incident is premised on the video footage. Every South African who was watching the proceedings that day saw what happened.

Dr M Ndlozi (EFF) interjected and called for a procedural order that the Committee was discussing the case's contents with a staff member, which is not wise. This is not done in the interest of justice, and the case details should not be discussed in this manner.

The Chairperson said Mr Tetyana was detailing the letters sent to her, as Chairperson of the Committee, not the case details or the hearing.

Mr Tetyana said he was giving legal advice to determine whether the Committee should accede to the demand of summoning the Speaker. It is the Committee’s prerogative whether it agrees with his advice.

Mr Xaso, as the Secretary to the National Assembly, is the Chief Advisor to the Speaker. If one listens to the footage, the Speaker said to Members that they must be patient as she was receiving advice from the clerks of the NA Table as “they are the officials who know the Rules better than Members”. Thus, Mr Xaso would take Members of the Committee frame by frame through the footage.

Parliamentary Legal Services did not believe that the Speaker must be called as a witness; however, they believe that if the affected Members want to call her as their own witness, the Committee can accept that. The Committee does not need the Speaker of the NA as a witness to these proceedings. Subpoenaing someone is inherently implying that they are resisting and adopted an uncooperative spirit. The Speaker is the custodian of the NA Rules, and she has not displayed any uncooperative spirit or attitude. The Committee should show courtesy to the Speaker by writing to her, informing her to avail herself should the affected Members need her as their own witness. It was the Committee’s decision whether to go ahead with this subpoena of the Speaker as a witness of the affected parties if they so agreed.

Deliberations

The Chairperson noted that the lawyers' letters of the affected Members are requesting the Committee to subpoena the Speaker to be a witness.

Ms D Dlakude (ANC) thanked the Parliamentary Legal Advisor for the briefing and welcomed the letters written to the Committee. She agreed with the briefing by Mr Tetyana. The Committee cannot call the Speaker because the Committee’s reliance should be on the video footage, and the Speaker has also submitted a report to that effect. Thirdly, witnesses have been invited, like Mr Xaso. She felt that the Committee had all the material evidence to make a determination and did not need to call the Speaker as a witness.

Dr Ndlozi said when dealing with justice, one must never give the impression that something is hidden somewhere; one must play open cards of transparency and fairness. The letters simply request that the Speaker be summoned to give evidence in relation to what she did. This should not be read in a negative light, but it is because of the complication of the Rules. He cautioned the Committee from creating an impression that the Committee is protecting anyone – the Speaker needs no protection. A decision cannot be based on the video only because it means the decision would already have been made. The matter must be canvassed; the video may not be enough. The Speaker is a material witness; she was involved and presiding over the House. Therefore, the Committee must not be seen as if it is protecting anyone.

The Speaker also wrote a report, and she must be allowed to appear before the Committee to speak on her Report, not Mr Xaso.

Mr N Xaba (ANC) noted that after assessing the inputs related to subpoenaing the Speaker, he supports the resolution that calling the Speaker a witness was unnecessary. All the evidence available and the witnesses that have been called suffice for the Committee to make a determination.

Ms D van der Walt (DA) noted she had a different opinion. She indicated that the Speaker was central to the process for transparency and fairness as she was on the chair and called for the security to intervene. She did not see any harm in inviting the Speaker to the Committee as she has a right to refer to her report or video and provide explanations. She did not think it was necessary to protect the Speaker and supported that she must appear before the Committee.

Ms G Tseke (ANC) welcomed the Parliamentary Legal Services’ advice. She also did not support inviting the Speaker to appear before the Committee as a witness. The evidence and the called witnesses would suffice. This matter has been before the Committee for a long time and needs to be urgently resolved so that the cloud hanging over the affected Members can be cleared.

Mr Z Mlenzana (ANC) disclaimed that he was not a legal guru but a labour law person; however, having listened to the briefing by the legal experts, he picked up that it was Mr Ndlozi who claimed the letter was summoning the Speaker. The legal advice is clear that there is no need to call the Speaker due to the sufficient information and evidence before the Committee. It further stated that the witnesses can call the Speaker as a witness. Therefore, there was no need to call the Speaker.

Dr Ndlozi acknowledged the green line that Members were drawing. The Committee received a letter and a report from the Speaker, and was using this as one of the documents that are material to the proceedings. Yet the Committee is saying that the document's author should not come. He was appealing to basic logic. In the interest of justice, the Speaker should come and speak to what she has written. She is the custodian of the Rules and an important person in the Disciplinary Committee (DC) process; she is witness number one, but the Committee does not see that. She is the one who complained to the Committee and submitted a report; such a person cannot be forced, but they are part of the proceedings. This is basic logic. He was perplexed that the Speaker could not come and speak to her own document. The person who is not the author of the document is the one who will speak on behalf of the Speaker. The legal advice is meant to cage the Speaker. This is not good for the image of Parliament and in the interest of justice.

Ms Van Der Walt reiterated that the Speaker is central to the case. She is the report's author, and another person cannot speak on her report. To be transparent and avoid prolonging this matter, the Committee should call the Speaker.

The Chairperson felt that Members were coming up with different views on a simple matter. The Speaker cannot summon herself because she is the one who submitted the report. It is upon the Committee to deliberate on the evidence and decide. The Committee cannot call the Speaker because it has enough evidence. However, those who want to call the Speaker as their witness, they can do so.

The Committee will proceed with this case, and Members must be cleared. No one is presumed guilty at this stage; processes will unfold accordingly, free, and fair.

The meeting was adjourned.