2023 SONA Incident hearing: Day 3

Meeting report

The Committee continued its hearing on the State of Nation Address incident of 9 February 2023 on the behaviour of six MPs in the Parliament precinct. Those six affected Members were Mr J Malema (EFF), Mr F Shivambu (EFF), Mr M Ndlozi (EFF), Mr Dlamini (EFF), Mr Pambo (EFF) and Mr Tambo (EFF).

Written Statement on Behalf of Charged Members of Parliament
The Hearing Initiator, Adv Anton Katz SC, updated the Committee on the latest development. At 7:36am that morning, the State Attorney’s Office received a letter from Ian Levitt Attorneys, the legal firm that had been chosen by Mr Malema to represent the six EFF Members in this hearing.

The written statement noted that the Committee should peruse their arguments before it proceeds to deal with sanctions. The statement asks the Committee to find the affected Members not guilty as charged. They argued that they had listened to the account of the Secretary to the National Assembly and no evidence was led to a rule of Parliament that forbids a Member from protesting inside the Chamber. They stated that the video was not authenticated. They were resolute that they were exercising their right to freedom of expression (see document).

Adv Katz quoted paragraph 29 of the written statement:
29 On the evidence presented to the Committee:
29.1 There was a peaceful protest. Violence emanated from the Speaker. Some of the members who assaulted EFF members carried guns on them.
29.2 No case was made out that the conduct in issue amounts to misconduct as per the charges.
29.3 No case was made out about the threats experienced by the Speaker, the Chairperson of the National Council of Province and the President; and
29.4 No case was made out that there has been a breach of the Rules.

Adv Katz summarised that in essence the statement highlighted that 1) the video was not authenticated; 2) there was no evidence to suggest that anyone had felt threatened; 3) they were only exercising their constitutional right to freedom of expression and association.

Adv Katz explained to the Committee that it was decided yesterday by the Committee that the six Members were guilty as charged and that the Committee should get on with the question of sanctions today. He pointed to the functus officio principle that once a decision has been made, it was the end of the matter. The affected Members were not entitled to challenge that decision as it was too late.

Adv Katz submitted that the type of behaviour that had been displayed cannot be considered freedom of expression.

From the Initiator’s side, Adv Katz advised that the Committee proceed to the consideration of sanctions.

Discussion on Written Statement
The Chairperson recalled that the affected Members had indicated that they would not sit before the Committee, had described the Committee as a kangaroo court and instructed their legal team to leave the chamber.

Prof Lotriet (DA) stated that the Committee cannot entertain the merits of the letter. This is an ongoing process and the decision has already been made. The Committee should proceed to discuss the sanctions. The written statement from the affected Members was unprocedural and irregular.

Ms Dlakude (ANC) fully supported Prof Lotriet’s reasoning.

Mr Xaba (ANC) commented that it was surprising that the Committee received a letter of such nature. He endorsed the decision that the Committee should proceed to discuss sanctions.

The Chairperson noted Members’ inputs and agreed that there is consensus among Members that the formal and legal process should continue. The request contained in the letter was dismissed.

Discussion on Sanctions
In terms of s12(5) of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act, 2004, it states that,

(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.

Mr Z Mlenzana (ANC) indicated that the Committee was free to either implement what Initiator has presented or select to implement some of those sanctions.

He recommended that the affected Members should be ordered to make apologies to the President, the Speaker and the people of South Africa as per s12(5)(c) of the Act.

In addition, s12(5)(f) was also recommended.

Ms D Dlakude (ANC) did not appreciate the way in which the affected Members had handled this matter and called it unfair that they should dictate the meeting proceeding. She fully supported the sanctions as recommended by Mr Mlenzana.

Prof Lotriet affirmed the guiltiness of the affected Members and described their behaviour egregious. She has been a Member of the Committee since 2014. In her opinion, giving a fine would not achieve the desired effect. She proposed to combine the Initiator’s proposed sanctions with those of Mr Mlenzana’s recommendations.

She further recommended to impose suspension on those Members for a period of a month which would likely be the whole month of February.

Mr N Xaba (ANC) commended the Committee for its disciplined focus to ensure orderliness in the House. He supported Mr Mlenzana and Ms Dlakude’s recommendation.

He added that the public apology must be done in the House in person.

Ms G Tseke (ANC) was satisfied with the recommendations made by her colleagues.

Ms D van der Walt (DA) fully supported the Committee’s decision on the letter and supported Prof Lotriet’s recommendation. The Committee must not tolerate the manner that had been shown by the affected Members towards the President and the Speaker of the country.

Dr M Tlhape (ANC) supported and was satisfied with the recommendations. She hoped that the sanctions would have a deterrent effect on other Members to ensure their orderly conduct.

Prof Lotriet indicated that apology is very vague and should be more specific. She suggested that the apology should include an apology to all Members for disrupting SONA, for the embarrassment and putting the country in a bad light.

Ms Dlakude supported that proposal.

The Chairperson instructed the drafting team to take into account Prof Lotriet’s input when drafting the actual wording of the apology.

Chairperson’s announcement on sanctions
Having considered all the inputs made by Members, the Chairperson announced the sanctions.

All six affected Members were:
• ordered to apologise to Parliament, the President and the people of South Africa in person in the House as per s12(5)(c);
• were given one-month suspension without remuneration effective from 1 February to 29 February 2024 as per s12(5)(g).

The Chairperson requested the Committee staff submit the draft Committee report for approval before it is to be tabled in the House.

She thanked the support of Committee staff, the Initiator and members of the public who had been following the hearing.

The Chairperson adjourned the meeting.