NA: Unrevised hansard – 30 August 2022
Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Act 9 of 2019
In a hybrid meeting the Powers and Privileges Committee received closing arguments from the Initiator and the legal representatives of the three Members of Parliament who faced charges of contempt of Parliament. Economic Freedom Fighters members – Veronica Mente, Mr Mogamad Paulsen and Mr Khanya Ceza – were created a disruption during the President Cyril Ramaphosa question session in the National Assembly on 30 August 2022.
The Initiator outlined the sanctions appropriate for the level of conduct by the Members.
The Committee found that Mr Paulsen and Mr Ceza should be punished for bringing the Parliament proceedings into disrepute. It was agreed that there was not enough evidence to support the charges against Ms Mente.
There was argument in mitigation but the Committee agreed with the sanctions proposed by the Initiator. The two were instructed to apologise to the Speaker of the National Assembly, the President, and the nation publicly in terms of section 12 (5)(c). The two Members were suspended without remuneration for a month from 1 to 31 March 2024. The apology should be made before the end of February.
The Chairperson handed over the platform to the Initiator to make her closing arguments.
Closing arguments by Initiator
The Initiator, Adv Tanya Golden (Senior Counsel), began her closing arguments by referring to section 13 of the Powers and Privileges Immunities of Parliament and Provincial Legislatures Act 4 of 2004. The section indicated that a member is guilty of contempt of Parliament if the member (a) contravenes sections 7, 8, 10, 19, 21(1), or 26; (b) commits an act mentioned in section 17(1)(a), (b), (c), or (2) (a), (b, (c), (d), or (e); (c) willfully fails or refuses to obey a rule, order, or a resolution of the House; or (d) commits an act which in terms of the standing rules constitutes i. contempt of Parliament; or ii. a breach or abuse of parliamentary privilege. Section 13 should be read together with section 7 and 12 of the Act. Section 12 deals with the disciplinary action taken against Members for contempt.
Adv Golden stated that charge number one was common for all three Members. She added that the contravention of Rule 69(b) and (e) of the National Assembly Rules has been included in the charge sheet of Mr Paulsen. Rule 69(b) deals with the physical intervention or obstruction of any member or staff member; Rule 69(e) refers to using or threatening violence against a member or other persons. These charges have been added to charge number one for Mr Paulsen.
The Initiator said that all the other contraventions were common to all three Members for charge one.
Adv Golden noted that she is not pursuing a charge that Mr Paulsen threatened violence against Parliamentary Protection Services. During the 12 December cross examination of Mr Paulsen, she put it to him that she would not rely on section 69(e), which deals with a threat.
Members have additional charges specific only to the conduct. For Mr Ceza, charge two was that he disregarded the authority of the chairperson when asked to leave the Chamber which he refused to obey, as evident from the video footage. The Sergeant in Arms was instructed to remove him, and Mr Ceza refused, which then compelled the Speaker to call in and instruct Parliamentary Protection Services to physically remove him. Mr Ceza also acted in breach of section 13(c) and 13(d) of the Act, when he refused to leave the Chamber. He was informed that those were further contraventions of the National Assembly Rules.
The Initiator referred to Ms Mente, particularly on charge two. Ms Mente persisted to speak while the Speaker addressed the House and refused to leave when ordered to do so by the Speaker. The Speaker was therefore compelled to call the Sergeant at Arms to remove Ms Mente or to ask her to leave, which she refused to do. The Speaker was therefore compelled to call in the Parliamentary Protection Services to physically remove her from the Chamber.
Mr Paulsen interrupted the Initiator but was asked by the Chairperson to refrain from causing a disruption.
The Initiator continued that the second charge was that Ms Mente acted in breach of section 13(c) and 13(d) of the Act, when she refused to comply with the Speaker’s orders to leave. There is a further charge, charge three: Ms Mente refused to withdraw disturbing and/or threatening and/or unparliamentary remarks made to Ms Mgweba when ordered to do so by the Speaker, and so she was ordered to leave the chamber for disregarding the authority of the chairperson and she refused to do so. The Sergeant at Arms was called to ask her to leave, and she refused. The Speaker was therefore compelled to invoke Rule 73(2), to call in the PPS to physically remove Ms Mente.
On charge two, Mr Paulsen obstructed the PPS officials from executing the physical removal of Mr Ceza. This was a flagrant breach of Rule 69(b) and/or (e); and Rule 73(5).
The Initiator provided a brief summary of the evidence. As the legal representatives, they relied on the video footage of the proceedings in the National Assembly on 30 August 2022. They also relied on the unrevised Hansard, the verbatim transcription, of what was said in the House on the day. They also relied on Mr Xaso’s evidence. Mr Xaso was present in the House on 30 August and observed the conduct of the affected Members. The affidavits which were submitted into evidence, were also relied on.
Adv Golden confirmed that the legal representative of the affected Members indicated that he does not object to the admission of the affidavits where the technical evidence is concerned. However, they do not accept the affidavit evidence of the PPS as they do wish to test that evidence.
Adv Golden said that although the affected Members gave evidence in their own defence, their evidence does not disturb the evidence led by herself as the Initiator assisted by Adv Magona, namely, that of Mr Xaso, the Hansard description and the video footage, which speaks for itself.
The Committee can easily arrive at its own conclusions from the video footage alone. It was clear that the affected Members, Mr Ceza, Mr Paulsen, and Ms Mente caused and contributed to a huge disruption and disturbance in the National Assembly on 30 August 2022. Their behavior was sufficiently bad for the Speaker to instruct them to leave, which they refused to do. It was also clear that they blatantly disregarded and disrespected the authority of the Speaker when she made certain rulings, and when she ordered that they leave the House
The Initiator noted that Mr Ceza spoke without being recognised and raised the issue of Phala Phala. He insisted that the issue of Phala Phala be dealt with immediately. During the course of his cross examination, Adv Golden made extensive reference to the Hansard. Mr Ceza raised Phala Phala in circumstances where the Speaker made it very clear on more than one occasion, as can be seen from Hansard and the video footage, that it was not the question that the House was dealing with at the time. The House was still dealing with the first question; however, the Speaker made it clear that according to how the questions were arranged in the Order Paper, Members would have an opportunity to ask questions about Phala Phala when that question was reached in the proceedings. However, certain Members of the Economic Freedom Fighters including Mr Ceza, did not respect the Speaker's direction and ruling, and repeatedly raised the issue of Phala Phala, which then led to the Speaker making a ruling that Mr Ceza should leave the House.
The Initiator submitted that Mr Ceza clearly defied the Speaker, and disrespected her authority. It is also not in dispute that he was defiant when the PPS came in to execute his physical removal.
In the case of Ms Mente, the video clip as well as pages 388 to 392 of the Hansard clearly shows Ms Mente’s blatant defiance of and disrespect for the Speaker. She blatantly refused to withdraw her remarks. Adv Golden submitted that Ms Mente acted willfully, as she repeatedly refused to obey the Speaker’s instruction. On page 388 of Hansard Ms Mente is defiantly saying `’I will not withdraw”. Never once did Ms Mente deny that she made the remarks she was accused of making to Ms Mgweba on the 30th in the House.
It was only later on in the proceedings and after the Speaker repeatedly asked her to withdraw, that she opportunistically told the Speaker “What must I withdraw?” On page 390 of Hansard Ms Mente said: “She threatened my member and I must sit here and be quiet while my member is threatened”. The previous statement suggest that she said something to Ms Mgweba. The Initiator submitted that Ms Mente’s defiance continued in the current hearing, as she refused to take the Committee into her confidence. She deflected away from her conduct based on what is not reflected in the Hansard.
The Initiator stated that the video footage speaks for itself about Mr Paulsen’s conduct and the Committee can draw its own conclusions and inferences from what you see. The video footage shows that Mr Paulsen not only physically obstructed the PPS members from removing Mr Ceza, but he also physically pushed the PPS officials back and tried to push them out of the way.
Adv Golden said that Mr Xaso was being kind to Mr Paulsen, in his evidence, when he testified that Mr Paulsen had tried to stop the PPS in an "unfriendly manner". It went far beyond just an unfriendly manner. Mr Paulsen’s conduct should be called for exactly what it was. Mr Paulsen was blatantly defiant even to the current proceedings. She reiterated Mr Paulsen's words to this Committee, where he stated “we had to defy, defiance was the only way to go, it was the only answer”. Therefore with those words Mr Paulsen clearly admitted very freely, and with no restraint, that he openly defied the Speaker. The excuse or explanation given by both Mr Ceza and Mr Paulsen on why they refused to leave the Chamber and why Mr Paulsen stopped the PPS was contrived. They both testified that they were waiting for Mr Malema’s engagement with the Speaker to finish on the issue of a warning. Mr Paulsen testified that he first wanted confirmation of Mr Malema’s engagement with the Speaker; Mr Paulsen said that he wanted confirmation that Mr Ceza should have been warned. However, it is shown that there was no such engagement whatsoever. The record does show that there was a continued and persistent defiance of the Speaker, which only created a further disruption and disorder in the House.
The Initiator referred to the evidence from Mr Xaso, and stated that the Speaker is not at all obliged to first warn a Member that they are going to be removed.
The acting Sergeant at Arms has confirmed in his affidavit that the Speaker instructed him to ask Mr Paulsen to leave and when Mr Paulsen refused to leave, the Speaker then called in the PPS to remove him. That affidavit is now on the record and has been accepted by the EFF legal team.
The Initiator stated that on the evidence of Mr Xaso, the video footage, the Hansard and the affidavits, the affected Members impeded the function of the National Assembly on that day. The affected Members caused and contributed to the disruption and the serious and grave disorder in the House. Their conduct delayed the proceedings for almost an hour. The Members deliberately took part in the disorder and aggravated the disorder, which was seriously detrimental to the decorum and dignity of Parliament.
The Initiator submitted to the Committee that the Members should be found guilty of contempt of Parliament as contemplated in section 12 read together with section 13 of the Powers and Privileges Act. She reserved her right to reply to any submissions made by the legal representatives of the EFF.
Mr Z Mlenzana (ANC) appreciated the Initiator's closing arguments. During the course of the proceedings, the image of Parliament was highly jeopardized for the guests who were part of the occasion and to onlookers. He asked the Initiator to explain to the Committee how the delay translated in monetary form and costs incurred by both Parliament and guests.
The Initiator agreed that the proceedings were accessible to millions of people and to the guests as the proceeding was live streamed on YouTube. It obviously created a bad impression of the South African Parliament in general – that it is beset by disrespect, disorder and a disregard for the presiding officer who was the Speaker. The delay of the business of the House on that day, had had repercussions for the House itself, because it could not continue with its business as scheduled. The business of the House is an obligation of Parliament in order to execute its function and duty to the people of South Africa. This has quite serious consequences. She could not meaningfully comment on if it had a monetary effect or there was wastage of costs as she does not have access to such information. However, it was serious enough that the disturbance and the disorder in the House created a delay, which meant that the House could not perform its function as it was required and obligated to do in terms of the Act.
Adv Mfesana ka-Siboto asked a few procedural questions ahead of his submissions. He noted that the Initiator suggested that she is reserving her right to reply. The current proceeding is no different from a trial. He accepted it and has not contested; however at this stage, evidence is being led, the Initiator led with the witness in chief, the cross examination, and then the re-examination and he had no qualms with that. What he does have qualms with is that in natural justice, how a trial is typically run is that one would not have a right to reply in submissions. It would be grossly unfair to have the Initiator address this Committee, which she has already done for 30 minutes. She also got a second bite to address the Committee. She also has a third bite in reply to address the Committee again, when all he has been afforded was the 30 minutes to make his arguments. He suggested that the Chairperson should make a ruling on the matter.
The Chairperson said that the allocated time to make arguments is 30 minutes; however, if there are additional comments beyond the 30 minutes one has the right to request the additional time from the Chairperson. No one has the right to deny this time.
Adv ka-Siboto highlighted that his issue was not with the allocation of time but rather he referred to an issue of principle. He agreed that he is going to respond to the Initiator's submissions. If the Initiator is given a right to reply to his submissions – an unprecedented occurrence – that what she might raise in submissions, he might not have an opportunity to respond to. One cannot make submissions and reply as a matter of principle.
The Chairperson asked him to advise accordingly.
Adv ka-Siboto referred the Chairperson to Number 5 in the schedule of the rules, it indicates that the Initiator must address the Committee on sanctions, and that is what she has already done. There is no provision that states that the Initiator may have a second or a third bite. That is unprecedented.
The Chairperson requested that she be allowed time to be advised by her legal team. If the Advocate would like to respond to the Initiator's submissions he could do so; he can also be afforded the opportunity to address the Committee.
There was a five-minute break.
The Chairperson reported that what was previously a dispute had been resolved and Adv Golden will not come back for a second bite. Once Adv Ka-Siboto is finished with his arguments, the Committee members will deliberate.
The Chairperson confirmed if the Advocate was comfortable with the resolution.
Adv Ka-Siboto responded that he was comforted by the resolution.
Closing arguments by affected Members' legal team
Adv Ka-Siboto addressed the Committee on the general principles that apply in disputes and the charges of the affected Members. He said that the committee is not properly constituted, and not because Rules do not provide for it. The argument is more nuanced. The argument is that the Rles should not provide for this procedure in this manner. The legal team has accepted that the Committee constitutes of multiple parties, but what cannot be disregarded is the fact that it is led by the African National Congress. Therefore if the ANC has a political position and a political agenda against their political opponents, it is easy to see why a reasonable person would think that they will not get a fair hearing. This is why the EFF will request in its court which will be held in January, that at least the committee chairperson is not affiliated to a political party. The principle and proposition should be viewed from the practical point of view of litigation. He made the example that if Chairperson Siwela stood in front of a judge as an ANC member and the judge was a Democratic Alliance member, would it be reasonable to state that there would be a fair trial. It is an issue of the perception of bias and it would be enough to have the judge recused. The same principle should apply in this instance and this committee should not be allowed to constitute as it does.
Adv Ka-Siboto stated that an individual who serves as an advisory in Parliament cannot be a witness to the case of the same Parliament. Mr Xaso is an advisor in Parliament, and he has testified on how he has perceived the matter, and in the same breath the Committee will take his advice whether he is right or wrong. It was for the same reason the EFF legal team had invited the Committee to postpone its decision until the court rules on the matter, because the perception of bias is palpable.
Adv Ka-Siboto said that there are three primary defences. The first was that the charges stem from unfairness of the decisions that were made by the Speaker who inconsistently applied the Rules, which was clear from the evidence submitted previously. The Speaker sanctioned someone for speaking after her ruling that no points of order be made, when in fact, ANC members raised points of order after she had made that ruling. There is no basis to say that Mr Ceza should be kicked out of the House. Making the decision not to give a particular person a right to raise a point of order on the basis of being an EFF member is an unlawful decision in itself.
As a legal team and as the EFF, they are faced with a difficulty that the ANC Deputy Chief Whip was a witness to the charges. The Deputy Chief Whip has been implicated in the same charges, for having received preferential treatment from the Speaker. She has an interest in finding against the affected Members. Ahead of the proceedings the Deputy Chief Whip gave her view of what her decision would be. Will Committee be able to apply itself independently against the affected Members or will it follow a political line in dealing with the affected Members?
Adv Ka-Siboto referred to the matter pertaining to Mr Lamola. The distinction was drawn between the conduct of Mr Ceza and Mr Lamola, by suggesting that Mr Lamola retracted his comment when invited to do so. That was not the point as rather Mr Ceza was being charged for speaking out of turn. Mr Lamola spoke out of turn as he did not speak to any of the questions listed on the agenda of the day. On what basis was Mr Lamola excused when he also spoke out of turn? The fact that he retracted was of no moment. Mr Lamola sought to use the platform to ridicule a Member of Parliament but there has not been any sanction.
Adv Ka-Siboto referred to the matter of the engagement by Mr Malema. Mr Ceza testified that Mr Malema was 'engaging' the Speaker. A technical analysis of the term was then adopted. If there is the view that the understanding of 'engaging' is misplaced and there is a dispute about language, a language expert should have been called. Instead the Initiator took the evidence of her own junior as the interpretation which should be given to the word. Mr Ceza used the word as a translation of the Xhosa word “bayathetha”, and it means the one is addressing the other. The argument should not be what the word means; but rather what Mr Ceza intended to say with the word.
Adv Ka-Siboto argued that the current process merely complies with the Rules rather than seeking to engage with the subject matter. The process is a rubber stamping exercise.
Adv Ka-Siboto referred to Ms Mente and stated that the Chairperson did not have a right but a duty to apply the rules consistently and fairly. It was not in dispute but rather Mr Xaso’s own evidence. Mr Dhlomo made remarks and the evidence indicated that the remarks he made were of a violent nature and this was not disputed by any witness. The Initiator did not dispute that he made violent remarks and it should therefore be accepted as such. After interrogating whether Mr Dhlomo made the remarks or not, the Initiator has not yet indicated what Mr Dhlomo said. Shortly after the interrogation of Mr Dhlomo, Ms Mente was accused of the same thing. Thereafter, the Initiator immediately stated that the Initiator withdrew without establishing if Ms Mente did it or not. The suggestion that was given was that Ms Mente should accept it as she did not deny it. The version of events of the Members of Parliament should not be accepted in the absence of the said Members of Parliament. He should be able to cross examine those Members. There is no suggestion of what Ms Mente said except suggesting that it was volatile, disrespectful and unbecoming as a Member of Parliament. Ms Mente has been clear from day one and informed the Committee that the incident was over a year ago and she does not remember what she said. They are led to believe that the Speaker equally punished Ms Mgweba and it should be accepted as such; however, that is a silly proposition.
Adv Ka-Siboto concluded that with the absent evidence of an intention, the affected Members cannot be found guilty of any of the charges. He thanked the Committee for their indulgence.
Mr Mlenzana expressed his appreciation for the articulation of his arguments. He had made a disclaimer previously that he is not a legal person and so he may not have knowledge of all the legal terms and interpretations. He asked if the Advocate was disputing facts which have been tabled in the charge sheets or if he was justifying the actions of the affected Members.
He asked if the Advocate advised his clients, the affected Members, to not respond to the allegations made against them. The route of being silent would also mean consent.
Ms Dlakude asked if it was wrong for Parliament to have its own rules to guide proceedings. She added that all institutions have rules.
She asked if it was wrong to have a parliamentary committee which deals with its own internal matters. Such a parliamentary committee needs to deal with its own internal processes ahead of going to court proceedings.
Dr M Tlhape (ANC) highlighted that the Committee consists of multi-party members and it is problematic and challenging to want to remove members of certain parties from the Committee. The rules stipulate that the parliamentary committees should be formed in such a way. Members of the Committee should not be isolated according to their political organisation.
Dr Tlhape said that there has been an issue of the Speaker not coming to testify; Mr Paulsen had concluded that when the Speaker referred to “your people” that she was referring to EFF members. The Speaker did not say that "your people" are the EFF people. That was merely speculation on Mr Paulsen's part.
Dr Tlhape pointed out that Mr Paulsen never responded to the question if the EFF members had been unruly and distracting.
Dr Tlhape said that the Initiator is on record a number of times asking the affected Members if they would rather listen to the Speaker of Parliament or the EFF Commander in Chief. When a Member of Parliament is not satisfied with an order that has been put forward by the Speaker, there are proper channels to follow.
EFF legal team response
Adv Ka-Siboto expressed his appreciation for the concerns and questions raised by the Committee members. In reply to Mr Mlenzana, he stated that what is in the charge sheets are not facts, but rather they are charges of claims of what transpired. What is in the Hansard is what is factual. One would not have full context of the nuances of the video by just watching it. The affected Members did not choose to listen to Mr Malema instead of the Speaker. However, they said that anyone could have said that the Member was not warned and the Speaker should provide an answer to the said proposition. The affected Members simply chose to wait for the response from the Speaker. Mr Malema invited the Speaker to apply her mind if it was fair to warn one Member and not the other.
Adv Ka-Siboto replied on whether he advised the affected Members not to respond to certain questions. The idea is about Members not responding to questions on the interpretation of the Rule. He provided guidance to the affected Members that the interpretation of the Rule is a legal question and they are called before the Committee to answer factual claims. It is not the role of the affected Members to say what the Rules mean and what they are guilty of.
It is not wrong for Parliament to have its own rules, however that was not the contention of the legal team. The contention was that the Rules in the House are not constitutional. Whoever is to find the affected Members guilty or not, should be an individual who is independent and not be held to their political principles.
He agreed that indeed the Committee is a multi-party committee, but it cannot be denied that the decisions will depend on who are the majority members and in this case it would be the ANC members.
Mr Mlenzana asked Adv Ka-Siboto if as the Committee they would have to choose a legal team in terms of their political affiliation, or as a multi party committee the legal team would need to be multi party. He asked if the Advocate would agree to the statement that he is also an EFF member.
EFF legal team response
Adv Ka-Siboto replied that he did not suggest that the Committee should be composed in a certain way. He is not saying which legal advisors the Committee should have. The Committee should deal with the charges as they appear on the charge sheet. He has never been an EFF member and advocates are not allowed to have a political affiliation to their clients.
There was a 15 minute tea break.
The Chairperson said that both the legal team for the affected Members and the Initiator have presented their legal evidence about the incidents of 30 August. The Committee would deliberate on the evidence and make a decision if the affected Members are guilty as charged or not guilty. That will be the end of the matter and a report will be tabled to the House.
The Chairperson suspended the proceedings for 30 minutes to allow everyone to deliberate on the matter privately.
Dr A Lotriet (DA) addressed the composition of the Committee. Although it had been mentioned that this would be addressed in January 2024 in court, it was important to understand that the Rules as they are remain un-suspended as well as the application. The Committee should not be inhibited from performing its duties because of the pending court matter.
She asked if there was indeed contempt of Parliament in that an instruction by the Speaker was wilfully, deliberately ignored or refused by the affected Members. What gave rise to the instruction by the Speaker is another matter. The Speaker, in terms of the Powers and Privileges Act and Parliament's Rules, has the authority to issue an instruction and if any member refuses to obey the instruction, they are in contempt of Parliament. There was intentional, wilful refusal of a clear instruction by the Speaker and therefore the affected Members should be found guilty of the charges against them.
For any Member not happy with the instruction of the presiding officer, the remedy is that they can write to the Speaker or Deputy Speaker and request that the ruling be referred to the Rules Committee. The Committee has not been furnished with enough evidence that the affected Members exhausted all the internal remedies.
Mr Mlenzana suggested that the Committee should not put the affected Members under one umbrella in the decision-making. The circumstances which led to the current matter would need to be considered ahead of making a final decision. He suggested that the case of Ms Mente should be separated from the cases of the other two affected Members as it is clear that the other two Members are guilty as charged.
Ms Dlakude stated that Parliament, like any other institution, has its own internal processes and it has its own rules which guide the proceedings of the House. Therefore, the rules for proceedings cannot be disregarded by Members who are supposed to be called Honourable Members and are expected to uphold the decorum of the House. With all the evidence presented before the Committee, the behaviour of Mr Ceza and Mr Paulsen was unacceptable. The business of the day was questions to the President and the affected Members decided to disrupt the proceedings intentionally.
Ms Dlakude referred to the case of Ms Mente. Through the video footage presented in evidence there was nothing found. Ms Mente should not be found guilty. However she has a responsibility as a chief whip that her party members should behave accordingly. Processes should be followed accordingly.
Dr Tlhape agreed that there was not enough evidence to support the charges against Ms Mente. She agreed that the other two Members are guilty.
Mr Mlenzana added that the Committee remains a multi party committee and at no stage should it yield to any type of provocation which would make it unable to decipher facts. He agreed with his colleagues that the charges levelled against Ms Mente should be withdrawn formally and even at the level of mitigation.
The Chairperson submitted that the Committee has found Mr Ceza and Mr Paulsen guilty as charged. Ms Mente has not been found guilty and the charges should be withdrawn against her.
She handed over to the Initiator for her arguments on sanctions.
The Initiator took note of the comments from the Committee.
For Mr Paulsen and Mr Ceza, she would refer to section 12 of the Powers and Privileges Act. The first part of the recommended sanction was that both Mr Paulsen and Mr Ceza must give an unconditional verbal apology to the Speaker, the President, Mr Cyril Ramaphosa, and to the people of South Africa for their conduct and for disrupting the National Assembly proceedings on 30 August 2022. The verbal apology must be delivered in the National Assembly no later than the end of February 2024. That is in terms of section 12(5)(c) of the Act.
The Initiator further recommended that in terms of section 9 read together with section 12(5)(g) that both Mr Ceza and Mr Paulsen be suspended from Parliament for 30 days without remuneration, and the suspension should be effected for the month of March 2024. The motivation for the sanction was that both Mr Ceza and Mr Paulsen have previously been found guilty in an internal hearing for disrupting the National Assembly proceedings on 11 July 2019 when the Minister of Public Enterprises Minister Pravin Gordhan presented his department budget. They were subsequently called into a disciplinary hearing, which they did not attend and they were found guilty by the Committee. As a sanction they were also suspended for one month without remuneration.
The Initiator added that other than the fact that Mr Ceza and Mr Paulsen are repeat offenders, during the current proceedings they showed no remorse. In particular, Mr Paulsen showed absolutely no remorse and he continued to be defiant. He was unapologetic and disrespectful to these proceedings and to the Committee. That was an aggravating factor as to why the maximum sanction ought to be imposed upon him as the appropriate sanction.
Arguments in mitigation
Adv Ka-Siboto noted the ruling made by the Committee in respect of the affected Members.
Adv Ka-Siboto highlighted that section 9 of the Rules of the National Assembly provides that the mitigation and aggravating circumstances may be presented orally or in writing. He requested that the Chairperson should allow him time to consult with his clients. The request is informed by the finding against Mr Paulsen which finds him guilty of not obeying the instructions of the Speaker. They have led evidence, which was not contested, and it showed that the Speaker did not request anything of Mr Paulsen and therefore he could not have disregarded any instruction from the Speaker. The Advocate said that Mr Paulsen might want to review the decision.
The Committee could provide him with timeframes as to when he could make these submissions. He was not aware of the previous charges and findings for the two Members.
The Chairperson said that she would have to consult with Committee members before she can take a decision on Adv Ka-Siboto’s request.
10 minute break
The Chairperson asked if Committee members agreed with Adv Ka-Siboto's request.
Dr M Ndlozi (EFF) indicated that the EFF are in agreement with the proposal.
Ms Dlakude stated that while the proposal is on the table, the mitigation should continue in the current meeting. It cannot be based on the previous charges from 2019. The Advocate can make the necessary consultations outside of the meeting and the mitigation should continue.
Dr Tlhape agreed with the proposal that the Advocate should be given time to consult with the affected Members; however, it has to be in the current meeting.
The Chairperson supported the sentiments shared by her colleagues. The programme was adopted for all the affected Members, the Committee and the legal representatives involved. She would not give the Advocate time to consult, however she would give him time to prove that the charges are true or not. The previous charges do not have anything to do with the current proceedings.
Ms Z Majozi (IFP) said that both parties have been given enough time to consult and get a sense of how to proceed. On the sanctions proposed, the Advocate has not yet finished the allocated time. She agreed with Dr Tlhape on time given to consult with the affected Members in the meeting for 30 minutes.
Mr Mlenzana indicated that he was covered by his colleagues on the 30 minute consultation timeframe given to the Advocate.
Ms Dlakude corrected herself and stated that the previous case has a level of relevance to the current case. She added that the affected Members were supposed to be in the meeting. She was told that the affected Member had been cut due to disruption.
Arguments in mitigation (continued)
Adv Ka-Siboto stated that the reason he asked for an adjournment to a later date was not purely to consult; it was a secondary issue. The primary issue was the exercise of the affected Member’s right to present their mitigation in writing. If the Chairperson does not agree and the affected Members are not allowed to exercise their right, he would have to accept the ruling. The decision of the Chairperson would place him in a position where he would have to argue in mitigation, although they would have preferred to put it in writing.
He referred to the mitigation of sentence and that the affected Members cannot be punished twice. The fact of the matter is they were punished for what they did and that should be the end of it. The second reason they wanted mitigation is that it was an extensive shopping list for the alleged offences. It is a fact that Mr Paulsen did not disobey the Speaker. The deliberations did not show that what he has been accused of has actually happened. To have such a sanction for conduct which has not been proven is not consistent with the rule of law. It is extensive and punishment enough to suspend someone from parliamentary activities. His clients do not take joy in not representing their constituencies in Parliament, their rights and duties, the rights and duties of their constituents. The fact that the sanction is 30 days and there is a deduction of salary for a full month is draconian. Having to suffer the shame of standing in Parliament and apologising to the nation is also extensive. The legal team accepts the finding of Mr Paulsen; however, it still insists that he did not defy the Speaker.
No one has said that Mr Ceza was lying when he said: “I was merely engaging the security personnel to say 'wait' ”. That could have been said to the Committee had the person he was talking to been called to the Committee; however, a decision was made not to. It must count in his favor, at least in mitigation.
Adv Ka-Siboto suggested that the appropriate sanction – given the surrounding circumstances –should consider: 1. Mr Paulsen's charge which has not been proven, but he was found guilty anyway; 2. The fact that Mr Ceza gave his version on why he did not leave, i.e. he was not proven to have deliberately disregarded the ruling of the Speaker. This is mitigating as it is not clear to this Committee if he intended to do that deliberately or not.
Adv Ka-Siboto submitted that the role of a Member of Parliament is not for their own good. A lot has happened to bring about the South African Constitution and to have all walks of life in the country represented by their chosen persons in Parliament. Therefore, the functions they perform are greater than the individual, i.e. Mr Paulsen and Mr Ceza. Not having the affected Members in Parliament is a punishment to their constituents as well.
The legal team submits this because the affected Members are found guilty, and they do not believe that these Members should be subject to it. The sanction of an apology against each of them, the sanction that speaks to the performance of their functions in Parliament, and the extensive sanction of their salary is draconian and in the circumstances cannot be acceptable.
[There was a connectivity issue and the sound was inaudible for most part.]
Dr Lotriet said that she was not convinced by the mitigating arguments from the legal representatives. The argument on double jeopardy is not relevant in this case. The sanctions proposed by the Initiator are suitable.
Ms G Tseke (ANC) said that as Members of Parliament they have the responsibility of keeping the decorum of the House and therefore he supported the sanctions proposed by the Initiator.
Ms Dlakude agreed with the sanctions proposed by the Initiator.
Ms Majozi indicated that the IFP agreed with the sanctions proposed by the Initiator.
Dr Ndlozi stated that the affected Members should have been subject to the same withdrawal of charges as considered for the CIC of the EFF. The Initiator could not prove the case of Mr Paulsen and in the case of Mr Ceza, there were no grounds for the charges made against him. Mr Ceza had reasonable grounds to believe that his party leader would have persuaded the Speaker otherwise about a warning. The fact that they have already been kicked out of Parliament and they have lost time to represent their constituents, is not correct and ridiculous. The sanctions are political. It is a matter of how the House is run and there is an unfairness and discrimination as to how the EFF is treated. The Committee should consider withdrawing all the charges and they are not necessary.
Dr Tlhape said that the level of misconduct should be considered; it puts the integrity of Parliament in disrepute. Members represent constituents at the highest level of government. There should be consequences for the behaviour of the affected Members. The sanctions are befitting.
The Chairperson pronounced the penalty for affected Members, Mr Ceza and Mr Paulsen. They were sanctioned to apologise to the Speaker of the National Assembly, the President, and the nation publicly in terms of section 12(5)(c). The two affected Members were suspended without remuneration for a month starting from 1 to 31 March 2024. The apology should be made before the end of February.
She requested that the support team submit a draft Committee Report for approval and thereafter it will be tabled in the House for consideration.
The meeting was adjourned.
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