Consideration of request to subpoena NA Speaker as a witness

Meeting report

The Chairperson opened the meeting, thanking everyone for being present for the urgent meeting.

There were no apologies and the single agenda item for the meeting was adopted.

Parliamentary Legal Advisor briefing

Mr Andile Tetyana, Parliamentary Legal Advisor, updated the Committee on the EFF’s case the previous day to interdict the suspension of six MPs from Parliament for disrupting the 2023 State of the Nation Address (Sona).

The six MPs – Julius Malema, Floyd Shivambu, Mbuyiseni Ndlozi, Marshall Dlamini, Sinawo Tambo and Vuyani Pambo – want to stop their suspension from the National Assembly. They also want to halt the docking of one month’s salary.

There were three prayers in the EFF motion:

-Interdict Parliament from proceeding with the hearings into the six affected EFF Members. This has since become moot as the Committee concluded the hearing

-Suspending the continuance of the hearing, also moot

-Any findings, penalties, or sanctions meted, pursuant to the above hearings, will have no effect 

The court was supposed to consider point three of the above yesterday but the EFF approached counsel for Parliament to say that since the penalty is only set to come into force on 1 February 2024, there is no reason for the affected parties to pursue leave sought in prayer three in their motion of notice. The EFF withdrew its urgent intervention application yesterday and would seek another application where all parties will have to agree to a suitable timetable.

The second matter concerned the “Mente matter” from an incident in August 2022 during questions to the President. Another incident took place on 9 and 10 June 2022 during Budget Vote One: Presidency. These two matters have since been consolidated into one. He drew Member’s attention to the National Assembly (NA) Rule which spoke to summoning individuals to appear before the House, committees, or other parliamentary forums in accordance with the Powers and Privileges Act. Affected parties can call anyone as a relevant witness. If the individual refuses, an approach can be made for the committee to exercise its summonsing or subpoena powers. Only committees of the NA have this power of subpoena. The court was supposed to hear these matters yesterday as part of an application for urgent interdict but Acting Judge Van Heerden, having appraised himself of the papers, was of the view that the EFF had not fully perfected this procedure. By way of background, the EFF did write to this Committee on 6 October to subpoena the NA Speaker but the Committee responded that given the other evidence in the matter, the Committee did not see the need to call the Speaker. However, the Committee went further to say that if the EFF was of the view that the Speaker should be called as a witness, it has every right to do so. Subsequent to that, the legal representatives of the affected Members wrote to the Speaker to appear as a witness, to which she declined. The correct procedure is now for the EFF to request the Powers and Privileges Committee to exercise its subpoena powers in terms of the Powers and Privileges Act.

The EFF argues that the Speaker’s attendance is important as it will afford the Speaker to give evidence regarding her decision as part of the subject matter of the dispute. The affected Members could question the Speaker, obtain her version, cross-examine and test her view and they feel no other person can give evidence in respect of the Speaker’s decision as she ultimately took those decisions.

Given that the hearing starts next week and the matter is on the court roll as urgent, it was urgent that the Committee consider the matters today. A report would then be provided to the court the next day regarding the decision of the Committee.

Discussion

Mr Z Mlenzana (ANC) asked if the appeal or request tried to negate the original decision the Committee took because the matter was already dealt with by this Committee.

The Chairperson said this related to a different incident.

Ms D Dlakude (ANC) did not see the need to subpoena the Speaker at this stage. The Committee is of the view that the video footage, the Speaker’s report, and the other witnesses to appear will assist the Committee in arriving at a just and fair outcome.

The Committee is also of the view that should there be a need for the Speaker to appear as a witness during the hearings, it can be considered if such a time arises.

Mr N Xaba (ANC) supported the above view. He said there was no need for the Speaker to appear unless the Committee decided otherwise at a later time.

Ms Z Majozi (IFP) also supported the view that the Speaker does not need to be subpoenaed at this stage as it has enough evidence at this stage. Going to court does not mean the processes of the Committee are halted. She said it was premature to call the Speaker at this stage although the Committee might consider it if the need arises during the hearings.

Ms V Mente (EFF) said the Committee cannot speak on behalf of the Speaker - this is wrong. The Committee is not in a position to answer the questions from affected Members – only the Speaker can do that. The Speaker should argue and substantiate her own complaint. The Committee can only decide once all details have been considered. The legal team of the affected Members has gone through all the evidence and is of the view that the evidence is insufficient to answer the questions that need to be directed to the Speaker. Therefore, the Speaker must be subpoenaed by this Committee.

The Chairperson requested Ms Mente and Ms N Ntlangwini (EFF) not participate in the meeting as they were affected by the matters under discussion. She asked them to leave the platform in terms of procedure.

Mr M Manyi (EFF) thanked the legal team for the impartial process. He noted the stipulated legal procedure to call for a witness to be subpoenaed, where it was stated the Committee “must” consider this request. Noy doing so infringes on the rights of the affected parties. He advised the Committee to stick to procedure and subpoena the witness as the legal team advised the Committee to do. The Committee does not have a choice – it must subpoena the Speaker in terms of the process. Why is the process being flouted?

Ms G Tseke (ANC) supported the decision not to subpoena the Speaker. The Committee has enough evidence but if there was a need later, the Committee could re-look at its decision.

Dr M Thlape (ANC) said the onus for making this decision lay with this Committee. Nothing has changed the Committee’s view that the evidence before it was sufficient. If the Committee decided it needed more information at a later stage, the Committee could reconsider its decision but as of now, the Committee sees no need to subpoena the Speaker.

Mr Mlenzana supported the decision not to subpoena the Speaker although this could be reconsidered, if needs be.

Mr Manyi said the Committee should not politicise the matter, but follow process, as the legal advisor outlined. To say that nothing has changed is not true. What has changed is that the affected parties now followed due process – this is the fundamental difference and the Committee must now exercise its power to subpoena the Speaker, as per the legal advice.

Mr Xaba raised a point of order – he said the Committee was guided and it was taking the correct decision.

Mr Manyi continued that factually, the Committee was within its rights to not subpoena the Speaker in the first instance as the affected parties did not follow due process. Now that due process has been followed, the Committee must subpoena the Speaker. This is the difference between the Committee’s first decision and the meeting today – to say nothing has changed is patently untrue. This is not about the merits but purely about the process, which must be seen to be fair.  Members were steamrolling and abusing their powers by not following due process, despite legal advice that the Committee “must” subpoena.

The Chairperson noted further raised hands but encouraged Members not to respond to Mr Manyi but to deal with the issues at hand. She recognised the hands.

Mr Manyi raised a point of exigency and said that if Members were allowed to respond, he should also be allowed to respond to them, in terms of fairness.

The Chairperson said that would not be allowed.

Mr Manyi said that was unfair.

The Chairperson asked that she be allowed to chair. Mr Manyi was given ample opportunity.

Ms Majozi reiterated that the Committee has sufficient witnesses and evidence and she supported the decision not to call the Speaker as there was no need to. She asked that the Committee proceed with this decision.

Ms Dlakude said the Committee’s task today is to consider subpoenaing the Speaker as per the request. The Committee has now decided not to subpoena the Speaker and if there was a need to further down the line, this could be reconsidered.

The Chairperson concluded that the Committee is of the view that the Speaker not be subpoenaed at this stage as the material before the Committee is sufficient. She thanked the legal advisers for the briefing, noting the Committee has the right to make its own decisions.

The objection of the EFF was noted.

The meeting was adjourned.