2023 SONA Incident hearing: Day 2

Meeting report

[The meeting venue had audio challenges so the Zoom platform was inaudible for parts of the meeting].

The Chairperson indicated that the meeting was a continuation of the previous day. She handed over to the Initiator to take the Committee through his closing statement.

Correspondence from Affected Members
The Initiator, Senior Counsel Anton Katz, indicated that ahead of his closing statement he would like to highlight new developments that happened shortly before the meeting started. The attorneys of the affected Members wrote a letter addressed to the Chairperson and the State Attorney, requesting to make written submissions on the merits by close of business. The letter stated that the Committee should not make any determinations on the merits before considering the Members' written submissions.

Senior Counsel Katz said that the Committee would have to decide whether to grant the affected Members the indulgence requested by the letter. It would be important for the Committee to note its ruling from the 20 November 2023 hearing where the postponement application was rejected and the six Members chose to walk out of the proceedings. Thereafter, the Chairperson gave a directive that the closing arguments would begin at 11:00 on 21 November 2023. Requesting to provide written submissions by close of business today undermines the authority of the Chairperson and the Committee’s decision. It is inconsistent with the six Members' decision to walk out. The Initiator therefore submitted that he should be allowed to continue with his closing statement and the Committee should make a decision based on that submission without granting indulgence to the affected Members' request.

Discussion
[The meeting venue had audio challenges therefore Members' comments were inaudible in parts of the meeting].

The Chairperson indicated that the Initiator should continue with his submission as the Committee relies on his guidance. Thereafter the Committee will reflect on the matter he has put forward.

Mr Z Mlenzana (ANC) stated that the Committee should continue with the agenda of the meeting. If the affected Members who chose to walk out of the proceedings, want to come back, they should come back formally and officially.

Mr N Xaba (ANC) supported the proposal made by the Chairperson and his colleague.

Prof A Lotriet (DA) indicated her support for the proposal made by Members. The Committee has made a decision based on evidence and witnesses.

The Chairperson stated that the Members in question decided to leave the proceedings and the ruling stands that the Committee is going ahead with the closing submissions.

Closing Statement by Initiator  
The Initiator, Senior Counsel Anton Katz, highlighted that the affected Members have been charged with counts of contempt of Parliament as contemplated in Section 13 of the Powers, Privileges, and Immunities of Parliament and Provincial Legislatures Act 4 of 2004:

Conduct constituting contempt
13. A member is guilty of contempt of Parliament if the member contravenes section 7, 8, 10, 19, 21(1) or 26; commits an act mentioned in section. 17(l)(a), (b)or (c) or (2)(a), (b),(c), (d) or (e); wilfully fails or refuses to obey any rule, order or resolution of a House or the Houses; or commits an act which in terms of the standing rules constitutes-
(i) contempt of Parliament; or
(ii) a breach or abuse of parliamentary privilege.

The Initiator indicated that the National Assembly Rules give some teeth to the provisions dealing with contempt of Parliament. The six affected Members are all charged individually with Section 13(a) read with Section 7 which explains clearly what is to be regarded as prohibited conduct in respect of Parliament and its Members. Section 7(a) says that a person may not improperly interfere with or impede the exercise or performance by Parliament, the House, or Committee or with authority or functions, and Section 7(e) states that while Parliament or House or Committee is meeting, create or take part in any disturbance within the precinct.

The Initiator stated that the submission is based on the clear evidence of the sole witness who testified, with a good memory and who is an outstanding witness. It is clear that as the affected Members were exiting Parliament on instruction by the Speaker, Ms Nosiviwe Mapisa-Nqakula, with the assistance of the Sergeant of Arms, they violated the provisions set out in Section 7(a) and (e). The affected Members improperly interfered with and impeded the exercise by Parliament.

The Initiator said the affected Members were charged with violating National Assembly Rules 64(a) and (d) and 69(a) and (f). The preamble to the charges explained exactly what the problem was with the conduct of the affected Members. Rule 64(a) speaks to what Members must do to conduct themselves with dignity and in accordance with the decorum of the House. They are required to enter and leave the House with decorum; and (b) 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 across all rows across the floor, in front of the benches. Rule 69 indicates that Members may not engage in gross disorderly conduct in the House and its forums, including (a) deliberately creating serious disorder or disruption; and (f) acting in any other way to the serious detriment of the dignity, the decorum or the procedure of the House.

The Initiator stated that it is clear that the affected Members violated both Rules 64 and Section 69.

The Initiator stated that, as the Parliament attorney, he submits that a finding of guilt follow in respect of that which they have all been charged. It cannot be clearer that jumping onto the stage after being ordered by the Speaker to leave the House, cannot be anything other than gross disorderly conduct in violation of others in attendance.

When the Speaker ordered the affected Members to leave the House, she made a decision and the Members chose not to review, as they rightfully could, the decision taken by the Speaker. Therefore the conduct to jump on the stage is to be seen in light of the legitimate and lawful directive by the Speaker that they should leave the House. Despite the instruction the affected Members went further and created disturbance in violation of the dignity and decorum of the House and this constituted gross disorderly conduct in a joint sitting giving effect to the State of the Nation Address, the executive reporting back to the people of South Africa, in the special sacred sitting of Parliament.

The Initiator submitted that the affected Members should be found guilty as charged.

Discussion
Mr Xaba asked the Initiator to outline the road ahead and furnish the Committee with the next steps that need to be taken.

Mr Mlenzana welcomed the submission made by the Initiator (inaudible)

Response from Initiator
The Initiator said that the two questions from the Committee members relate to the further steps that the Committee needs to engage with, depending on what its findings are on the submission made on the affected Members. If the Committee finds that the Members are not guilty of the charge put to them, that can be the end of the matter. If on the other hand, the Committee finds that the affected Members are indeed guilty, that is a recommendation that would go to the House. The Committee would enter into another phase, called the sanctions phase.

The Committee would need to consider what would be the appropriate sanction for the particular finding of guilt for the six individuals. For the sanctions phase, the Committee will consider Section 12(5) of the Powers, Privileges, Immunities of Parliament Act which sets out the parameters on what is an appropriate sanction for the six Members. However, at this stage, that is irrelevant because it may well be that the Committee decides that they are not guilty.

Discussion
The Chairperson noted that the Initiator had made his submission with all the supporting evidence, and the current sitting is not the time to deliberate if the affected Members are guilty. If the affected Members are found not guilty, it is the end of the matter. However, if they are found guilty, the Committee will proceed with the matter.

She outlined once again the contraventions of the six affected Members.

She handed over to Committee members to comment on the closing submission of the Initiator and whether they viewed the accused as guilty or not guilty.

Prof Lotriet said that after the presented arguments and the evidence put before the Committee, she submitted that the affected Members should be found guilty.

Dr M Tlape (ANC) supported the submission that the affected Members be found guilty.

Mr Xaba (inaudible)

The Chairperson concluded that Mr Julius Malema, Mr Floyd Shivambu, Mr Marshall Dlamini, Mr Sinawo Tambo, Mr Vuyani Pambo, and Dr Mbuyiseni Ndlozi are found guilty as charged. She asked the Initiator to advise the Committee on the appropriate sanctions.

Response from Initiator
The Initiator stated that his response would be divided into two portions. Firstly, what are the available sanctions that this Committee may impose on the affected Members. Secondly, what factors the Committee will take into account in considering the available sanctions.

In criminal law judges and magistrates have commonly highlighted that the sanction or the sentence of an accused person is the most difficult part of their task . People generally may be good, but sometimes, for whatever reason they do things which society regards as outside the limits of acceptable conduct.

This Committee similarly has a very difficult task in deciding what is an appropriate sanction for the particular conduct that the six affected Members have been found guilty of.

He read out Section 12(5) of the Powers Act:
"( 5 ) When a House finds a member guilty of contempt, the House may, in addition to any other penalty to which the member may be liable under this Act or any other law, impose any one or more of the following penalties:
(a) A formal warning;
(b) a reprimand;
(c) an order to apologise to Parliament or the House or any person, in a manner determined by the House;
(d) the withholding, for a specified period, of the member’s right to the use or enjoyment of any specified facility provided to members by Parliament;
( e ) the removal, or the suspension for a specified period, of the member from any parliamentary position occupied by the member;
(f) a fine not exceeding the equivalent of one month’s salary and allowances payable to the member concerned by virtue of the Remuneration of Public Office Bearers Act, 1998 (Act No. 20 of 1998);
(g) the suspension of the member, with or without remuneration, for a period not exceeding 30 days, whether or not the House or any of its committees is scheduled to meet during that period."

The Initiator said that the Committee will look at the seven available sanctions and decide whether to impose one or more. After going through the various factors, he and the legal team submitted that there are two of the seven, which fit the purpose of the particular conduct that the affected Members have been found guilty of.

The most appropriate sanction in this case would be (c) order the six affected Members to apologise to Parliament or the House or any person in a method determined by the House. The legal team made the submission that by the nature of the conduct that the affected Members engaged in, it is only appropriate that they apologise to 1) the President of the Republic of South Africa 2) the Speaker of the National Assembly and 3) the people of South Africa. The Committee can decide which form the apology should come in, whether it is that the six affected Members stand up in the House and formally apologise one by one.

The second sanction that the legal team deemed appropriate was (g) the suspension of the Member, with or without remuneration, for a period not exceeding 30 days whether or not the House or any of its Committees are scheduled to meet during that period.

The appropriate sanction would be to suspend the affected Members for ten days, starting from 6 February 2024 and finishing on 16 February 2024. The reason for the ten days is that on Thursday 8 February 2024, according to his knowledge, is when SONA 2024 will take place.

The Initiator stated that it is clear that the six affected Members do not take SONA seriously. The Members disrupted and violated the decorum of the joint sitting of both Houses of Parliament with the President reporting to the people's representatives, Members of the National Assembly and the 90 Members of the National Council of Provinces; the Chief Justice; the heads of Court; former Presidents and foreign dignitaries. The six Members took it as an opportunity to take on the President about his conduct with Phala Phala among other issues.

The sanction will send out a strong message that SONA is a serious event in the life of South Africans, and it is a constitutional event set out by Section 84 of the Constitution with the President being called to account to the two Houses of Parliament together. SONA allows the rest of the country an opportunity to assess what the Executive tells the people of South Africa they have done and what the plans are for the future.

He concluded that to impose the sanction set out in Section 12(5)(g), the Committee would need to be satisfied by virtue of Section 12(9)(a) that two issues are at stake. 1) the Member is guilty of serious or repeated contempt. Some of the six Members have been found guilty in the past of repeated contempt; however, the legal team does not rely on the repeated aspect. The finding of this Committee should be that the Members are guilty as charged of serious contempt and none of the other set penalties will be sufficient. The apology as per Section 12(5)(c) is not sufficient for the serious conduct that this particular contempt constituted and therefore 12(5)(g) is satisfied with reference to this.

The Committee took a 15-minute tea break.

The Chairperson requested that the meeting should be adjourned and reconvened the following day at 11:00 to finalise the matter.

Meeting adjourned.