2023 SONA Incident: Committee Report

Meeting report

The Chairperson welcomed everyone and noted that Members would have received the Committee’s report. The purpose of the meeting was to consider the draft report of the Committee regarding the conduct of six Members of Parliament during the State of the Nation Address on 9 February 2023.

Report of the Powers and Privileges Committee into allegations of conduct constituting contempt of Parliament by members of the National Assembly during State-of-the-Nation Address on 9 February 2023
The Committee staff took Members through the report which provided a background of the process, appointment of the initiator, notices of hearing and charges served on the affected Members, the application for the postponement of the hearing, the summary of evidence presented to the Committee, its findings, and recommendations to the House.

[See the report for details https://pmg.org.za/tabled-committee-report/5615/ ]
The Chairperson formally submitted the report to the Members for their engagement and consideration.

Discussion
Ms D Dlakude (ANC) said the report was a true reflection of the previous discussions but raised an amendment noting that as Members of Parliament, it is their responsibility to hold the Executive to account. Therefore she suggested amending the dates of the suspension as SONA was one of the mechanisms Members of Parliament use to hold the Executive to account. Thus, if the suspension is from 1 - 29 February, the affected Members would be deprived of attending SONA - she did not feel it was correct. She felt the Members should be allowed to hold the Executive to account and participate in SONA as one of the mechanisms to hold the Executive to account. She proposed the date of the suspension be changed to 1 - 31 March. The Committee should also not suspend and dock salaries in January- it is a tough month and some Members have children that must go back to school.  

Dr A Lotriet (DA) noted Ms Dlakude’s argument, but she had a technical question which she asked legal services to guide the Committee on as she thought the Committee was functus officio and was unsure if the sanctions could now be amended.

Ms Z Majozi (IFP) welcomed the recommended sanctions and agreed with Ms Dlakude that the sanction was not being changed, only the date of the sanction was proposed for amendment. She agreed that the Members could not deprived of attending the SONA as they must also hear what the President has to say.

She further agreed with Ms Dlakude’s proposal citing that January is indeed a tough month for many parents as their children are going back to school, and it is a tough month for parents. However, she agreed with and welcomed the recommendations, noting the proposal to amend the dates.

Mr N Xaba (ANC) also agreed with the proposal for amendment. The sanctions will continue but everyone is required to participate in holding the Executive to account. The dates are merely being postponed, but the sanctions remain.

Mr Z Mlenzana (ANC) concurred with the previous speakers and added that the report is the Committee’s, and they were not changing the content of the report but “shifting goalposts”. Parliament is a political institution, and its decisions should also have the element of political bearing.

The Chairperson noted that Members were all in agreement that they were not changing the sanctions but the date. She supported the proposal of Members to shift the date.  

Ms D Van Der Walt (DA) reminded the Chairperson that they had not agreed yet as Dr Lotriet had requested legal guidance on this matter.

Mr Andile Tetyana, Senior Parliamentary Advisor, responded that this was a very sensitive matter. The hearings were held from 20 to 22 November 2023 and the hearing was concluded on 22 November. Thus, the purpose of today’s meeting is to merely consider the report and see if it accurately and factually reflects what was decided at the hearing. So, changing the dates substantively changes the sanction and the principle of functus officio applies in this instance. This is a Latin term that means having performed his or her office and with an official body like the Committee. It means without further authority or legal competence because the duties and functions of the original commission have been fully accomplished. Thus, today, the Committee is just crossing the t’s and dotting the i’s. That horse has bolted, and the Committee is now out of office. The report must go to the House, and the House has the authority to change the sanction in the manner it deems fit as the final arbiter. However, even the House can only do so if it applies itself to the principle of rationality and reasonableness because these two were part of our law. Finality has been reached because it is a point arrived at when the decision is published, announced, or otherwise conveyed to those affected by it. There is case law regarding this.

The advice from legal services is that the Committee cannot tamper with the sanctions because they were not sitting as a hearing. The hearing ended last week, and today’s objective is to give a historical account in the form of a historical document, which is the report, just to consider if it accurately and factually reflects what took place last week [during the hearing].

Further discussion
Dr M Tlhape (ANC) sought clarity on whether the report has been submitted for tabling as she thought that the Committee was dealing with the report. She wondered what was the difference between the hearing and the Committee report, if Members could still correct the report. She recalled that in the last engagement with the initiator, Members diverted from his advice and said that advice was not cast in stone and the Committee could still go further and reconsider the sanctions. She thought at this stage, this was still a Committee report which could be polished and considered. She would consider the horse bolted only once the final report was tabled. She did not understand why the Committee could not amend the report now.

Mr Xaba felt the Committee Members were obliged and required to take this decision. Legal advice is to guide the Committee, not make decisions. Legal advice is there to guide or support, but a decision is the responsibility of the Committee. Members are deciding to amend the dates of the sanctions and the legal advisors should guide Members on capturing this in the report – that’s it.

Mr D Stock (ANC) added that while the legal advice is appreciated, and welcomed, the Committee should strongly indicate it is not cast in stone just like the Committee’s process and its conclusion so far. It is within the Committee’s prerogative to amend the report or recommendations, as the process is not concluded until the report gets to the House. Then, it will be cast in stone. The legal advice is now trying to put the cart before the horse, and this should not be allowed. Members should be allowed to work and express themselves diligently within the National Assembly Rules.

He supported the proposal to amend the dates of the sanction.

The Chairperson summarised what she heard Members say- that they could fine-tune the report to amend the dates of the sanction. She said the view of the majority was to proceed with this proposal.

Ms Dlakude noted what Mr Tetyana said in that the report has been communicated to the affected Members and published. However, her understanding was that the report had not yet been published or ATC’d, and she asked if that was indeed the case.

Mr Tetyana said that Members were correct that he was not the Committee and it is the Member’s prerogative to decide. His objective was to guide the Committee legally and he must do so in good conscience without fear or favour or prejudice. Today’s proceedings concerned the adoption of the report- this is not a hearing; the hearing was last Monday to Wednesday. The purpose of the meeting today is to consider if the report accurately reflects the hearings – that’s all. If the dates of the sanctions are changed, the Committee is tampering with the sanction. The Committee took a decision [last week] and Members must recall that the proceedings of the Committee are held publicly.

He informed Members that he received a letter from the affected Members’ attorneys today saying they do not want to go to court on Monday because some of the points in their notice of motion were moot. This included the approaching of the court to say the Committee must not proceed with this, but the Committee has already concluded. The affected Members also argued that if the Committee continues with the process, it must be stopped but the horse has already bolted.

The attorneys are proposing a date be set in January because the sanction will only take effect in February. Already, there is a letter from the affected Members saying that they know the sanction will take effect in February. They do not want to go to court on Monday about this matter but to negotiate dates in January because the implementation of the sanction will only take place in February. This information is already in the public domain as the Chairperson communicated it to the entire world.

When dealing with these matters, due regard must be cared to the requirements of procedural fairness, especially when the variation or revocation will affect rights adversely. Now, statutory authority is required to revoke such a decision. When looking at the Powers and Privileges Act, Chapter Four, disciplinary action against Members or contempt, which is the statute used to discipline these Members, not anywhere does the statute give authority to tamper with the sanction, especially when the Committee is out of office. The hearings were concluded, and a decision was communicated, and the matter was closed. He emphasised that, in terms of administrative law, the Committee cannot reopen the hearing as changing the dates constitutes reopening the hearing. This is wrong because the hearing has concluded. The task of the Committee today is simply to consider whether the report accurately, factually and fairly captured the process of the hearings last week.

He emphasised his advice and reiterated that the Committee was at will to take its own decision.

Dr Lotriet felt it was important to protect the integrity of the Committee, its processes and that of Parliament. Thus, she suggested heeding the legal advice and not tampering with the sanctions at this point. For now, as tabled, the report is accurate and she felt the legal advice should be heeded.

Adv Victor Ngaleka, Procedural Officer, communicated the National Assembly (NA) Table’s position on the matter. It is not a legal opinion but procedurally and in terms of practice, committees regularly, as a matter of routine, change their reports before they get published or adopted by the House. The sanction was not being brought forward but pushed further back. So the external legal effect does not arise at this stage – there is no adverse effect or difference in effecting the sanction in March. He said the NA has a different position [from legal services] and he felt he should not keep quiet.

Ms Dlakude wanted to know if the report was published. She noted the NA table and legal services were not of the same understanding in this regard. She suggested the House be take a decision if the report has been published but if not, the Committee could still amend the dates.

The Chairperson concurred.

Mr Xaba agreed with Ms Dlakude. He wondered if anyone had published the report but who would have permitted that person to do so? If the report has not been published, the Committee can still amend the report. If the report is published, the House can decide.

Mr Stock was also of the view that since the conclusion of the hearing, the Committee had never communicated the decision of the meeting at that time but was still in the process of finalising the report; hence, today’s meeting. This report was still in process, and not yet finalised so there was still scope for amendments. If anyone has communicated the report on behalf of the Committee, they have misled Members. He agreed with the advice of the NA Table.

The Chairperson explained the issue of publicity was because the hearings were streamed live but the report has not yet been publicised and it was not yet adopted. The Committee is still within its rights to amend the report. The proposal is not to change the sanction but to change the date the sanction was effected. The affected parties were still within their rights to go to court. The Committee must defend the integrity of Parliament. The Committee has not yet publicised its decisions – only the proceedings were live. She did not see any wrongdoing. She proposed proceeding with the amendment of the dates of the sanction.

Dr Lotriet said it was not about the substance or the merits of the proposed amendment, but about procedure; thus, she would not support the amendment at this point. She requested that it was minuted that she found the procedure problematic.

The Chairperson noted this.

Dr Tlhape asked if any letters were written to the affected Members and if the Legal Advisor was privy to any information that Members were unaware of.

As far as she was aware, the Chairperson said no letters were sent to those Members as the Committee has not yet adopted the report.
 
Adv Ngaleka said that the formal adoption of the report by the Committee is the last stage in the matter. The next step will be the publication of the report in the ATC. Afterwards, the programme committee will schedule it for consideration by the NA. He noted that this report was scheduled to be considered by the House next week Tuesday. It is only when the House has adopted the report that communication will be sent to the affected Members.

Mr Tetyana did not agree with Mr Ngaleka, not on the process that he has outlined, which was correct but that Members were conflating the hearing and the report. These are two different things – the former ended last week Wednesday, and the report is merely to confirm if the process of the hearings were accurately captured.

Generally, the functus officio doctrine applies only to final decisions so that a decision is revokable before it becomes final. Finality is a point arrived at when the decision is published, announced, or otherwise conveyed to those affected by it. To be regarded as final, the decision must have been passed into the public domain in some manner. Members must divert from the word ‘published’ – the fact is that the information is in the public domain because the Chairperson communicated it at the end of the hearing. At the end of the hearing, the Chairperson announced publicly what the sanction is. Members must recall, to be regarded as final, the decision must have passed into the public domain in some manner. Hence, correspondence from the affected Members was received. The matter was also in the media as the hearings were carried out in the public domain.

The Committee can proceed, but it must live with the consequences.

The Chairperson nodded in agreement that she did release a media statement, as is the practice in Parliament. The statement reflected on what transpired, but it is still the prerogative of the Committee to decide on its report which is what is happening now. She asked if the affected Members were served with the sanction, as she understood this could not be done until the report was adopted and tabled.  

Mr Tetyana replied that the Committee's decision cannot be communicated to the affected Members at this stage as the report must still serve before the House. He questioned why it was so difficult for the Committee to have a watertight process where the report serves before the House and the House can amend the report based on the principles of rationality, and reasonableness and provide reasons as to why it wants to change the report.

He cautioned that the Committee was treading on dangerous grounds legally. The Committee’s finding does not have the final effect, as this report must still go to the House, as the final arbiter. If the House, in its wisdom, wants to change the dates, it can do so. The House can do it, but the Committee cannot because it is out of office – the hearings ended last week, therefore the Committee could not tamper with the substance of the sanction as it was unlawful. He did not know why the Committee was “fighting”.

Ms Van der Walt felt that Members were now being repetitive. There was a formal hearing with the initiator, and Members accepted the recommendations at the previous meeting. Members agreed with the recommendations and to take the process forward to the House. The legal advisor has been explicit about the standing of this report, and she supports the explanations given. If any changes must happen, it could happen at the House. At this stage, she could not support the amendment because those dates carried a meaning. She believed that the Committee should stick to its recommendations as the process held was a proper hearing with sanctions, unlike an ordinary committee meeting.

Mr Xaba welcomed that there was no communication to the affected Members. Secondly, there is no indication if amending this report had legal implications. The Chairperson had indicated that the Rules of the National Assembly applied, and the Committee should also be understood to apply the Rules of the NA. He once again supported the amendment. What may have been communicated to the public is not yet a decision but a process open to the public.

Ms Dlakude said when two different units from the same institution advise the Committee differently instead of speaking with one voice and communicating one message, it confuses the whole process. She was tempted to heed the legal advice that only the NA can amend the report. She urged the need to find a middle ground. It might be best to err on the side of caution and allow the House to decide on amending the report. She asked for advice on how this would be done. She noted the Committee has been working well and the matter of this amendment should not become an issue. She also noted that although processes were public, the decision was not final until the Committee adopted its report.

Mr Mlenzana agreed that the report was taken as it is and tabled to the House in its current form. However, political parties are free to influence the decision during the declarations in the House.

Ms Majozi noted that the report could be amended in the House, as per the advice. She noted it was not wrong for Members to question and discuss issues and have empathy. Members must not be terrified; it is only a recommendation which may or may not be approved by the NA.

Dr Lotriet supported Ms Dlakude’s suggestion. Members should be appraised of the process in the House.  

The Chairperson said Members have reached consensus and will proceed with the report as it is and the matter will be dealt with in the NA. She asked what the procedure would be followed following this meeting.  

She submitted the report for adoption, which was adopted without any amendment.

Adv Ngaleka informed Members that the report would be published tonight in the ATC and will appear in the Order Paper on Tuesday for consideration by the House. The Chief Whip will move a motion to adopt the report with amendments or a referral back to the Committee.

The Chairperson noted the process and thanked Members for the engagement.

The meeting was adjourned.