NA: Unrevised hansard - 9 June 2022
NA: Unrevised hansard - 10 June 2022
Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Act 9 of 2019
The Powers and Privileges and Committee continued Day 2 of its hearing on the disruption of President Cyril Ramaphosa’s Presidency Budget Vote speech in the National Assembly on 9 and 10 June 2022 by ten members of the Economic Freedom Fighters: Mr Anthony Matumba, Mr Mothusi Montwedi, Mr Tseko Mafanya, Ms Babalwa Mathulelwa, Mr Sinawo Tambo, Ms Constance Mkhonto, Ms Natasha Ntlangwini, Ms Paulnita Marais, Ms Naledi Chirwa and Ms Yoliswa Yako. All ten of the affected Members pleaded not guilty to the charges of disruptive behaviour and failing to obey the Speaker’s orders during the proceedings.
The Initiator completed leading the evidence-in-chief of the witness, the Secretary to the National Assembly. The legal counsel of the affected Members then cross-examined the witness. The witness was told that Ms Constance Mhkonto was not in the House and that she had been misidentified. It was also suggested that the Speaker was unfair in not equitably addressing Members casting aspersions on each other. Some were punished for stating "The President, a criminal and a money launderer', yet at the same time others were not reprimanded for calling out Mr Floyd Shivambu MP as part of the VBS heist syndicate. This cross-examination will continue when the hearing resumes at date to be announced.
Committee Members, affected Members and the legal teams of the affected Members were present.
Adv Golden SC continued leading of evidence.
The Acting Chairperson, Dr Thlape, reminded Mr Masibulele Xaso, Secretary to the National Assembly, that he was still under oath.
Adv Golden reminded the Committee that the previous day the video recording of the 10 June 2022 had been shown to the Committee up to and including the removal of MP Chirwa and MP Tambo. The video footage would be played from where it had left off the day before.
After a few adjustments, the correct video was shown to Members.
Adv Golden: Just to recap the female EFF member with a red hard hat on that's Ms…
Mr Xaso: That’s Ms B Mathulelwa (EFF).
Adv Golden: Sorry my apologies. Did you see what she did now?
Mr Xaso: Yes.
Adv Golden: Yes, just describe for us what you've seen.
Mr Xaso: She pushed a Protection Services member.
Adv Golden: Prevented the removal of Ms Chirwa.
Mr Xaso: Yes.
Adv Golden: Thank you we can play from this point.
[On the video a person accused the Speaker of allowing PPS to touch female MPs inappropriately]
Adv Golden: Mr Xaso, can I refer you to the unrevised Hansard on the top of page 528, I think that will bring some clarity to the issue.
Mr Xaso: Yes, I’m there. That men were touching women's breasts and bum.
Adv Golden: Who says that?
Mr Xaso: That is honorable Mkhaliphi.
Adv Golden: Was she on the online platform?
Mr Xaso: Yes.
Adv Golden: Yes and then what does the Speaker say before we go back to the video recording? On the Hansard, what does she say in response to that?
Mr Xaso: Honorable Members, as I read your names, Hon Tafeni, Hon Mkonto and Hon Mathulelwa, those honourable Members must leave their House.
Adv Golden: And further down, what does the Speaker say? Because they ask her what did they do.
Mr Xaso: Rule 73(5), this is what the Speaker says for obstructing the removal of Members from the House, honourable Members leave the House.
Adv Golden: Thank you we can continue with the video clip.
The video clip shows a female MP tackling with a female PPS member. Two additional female PPS members and one male PPS member who followed after had to intervene to assist the removal.
Adv Golden: If we could just pause there please. Mr Xaso, if you could just explain to us or describe to us what you've seen on the video recording.
Mr Xaso: I see the honourable Member when PPS is giving effect to the... because the directive is to remove her, she's resisting the removal and fiercely resisting their removal, obstructing the Members of the PPS from removing her. She also crossed the aisle of the House which is not permitted in terms of the rules and, and, of course resisted up to the end. When I say the end, I mean up to the door exit point and where she's supposed to be taken out. So she is, is that what they refer to as crossing the floor of the National Assembly, and there used to be a convention that dealt with that, that was to indicate that it is in breach of the rules and to do that I will find a rule as we continue, but that is a breach of the rules and in fact it's, it's, it's one of rule 64(d), yes it's one of those conducts, type of conduct, that what I've been in Parliament for a while now; I've not seen it before.
Adv Golden: Yes, and tell me when Ms Mathulelwa crossed the floor, and we can see that she was violently fighting with the female PPS members, was the Mace still in the House at the time?
Mr Xaso: No the House was in sitting and that is why and it becomes a violation of the decorum of the House, an extreme violation decorum of the House. Because the House is sitting, the Mace is there, anything could have happened to the Mace while that was happening. And so the rule says no Member is 64(d), no Member, no Member during the sitting, OK just read it completely. Members must at all times accorded the officers of the NA National Assembly the due respect and conduct themselves with dignity and in accordance with the decorum of the House and are required, it says, not during proceedings to pass between the Chair and the Member who is speaking, not between the Chair and the table, not to stand in any of the aisles or across aisles, nor to cross the floor of the House in front of the benches. That's what the rule says.
Adv Golden: Can we continue with that video clip please?
The video paused at the point when the Speaker announced, “suspend the business of the House.”
Adv Golden: We have now seen the removal of Ms Mathulelwa, Ms Tafeni and Ms Mkhonto. We know that Mr Tafeni has not been charged and that is because she resigned as a Member of the EFF, am I correct?
Mr Xaso: No, well, I don't know why she has not been charged because I was not part of the charging process, but I'll have to check. Ms Tafeni is still a Member but I'll check that but I don't know why she was not charged... that decision of the committee to charge or not to charge Members.
Adv Golden: But you confirm that together with Ms Mathulelwa, Mkhonto was also removed?
Mr Xaso: Yes, Yes, Mkhonto was also involved, yes, and I also just need to indicate as well that why the proceedings were suspended because it was not the time for the suspension of business at that point. There's usually when there's a long debate, there's usually a time when things are suspended. But because things were not... proceedings were suspended at that point because of what had just happened, there was chaos in the House. There was chaos in the House but it was mainly because of what the Member had done, crossing the floor as I said is something very unusual and something that happened that day. So the Speaker felt that proceedings must be suspended. You might have seen me doing some gestures there because I was uncertain about the suspension. But it was because the decision and determination that the proceedings must be suspended because what had happened was outrageous. Where the Speaker was concerned, what had just happened at that point was extreme.
Adv Golden: And if we then could fast forward the video recording to when the House resumes and when the suspension has been occurred off to the suspension if we can start when the House resumes
Adv Golden requested the video clip to be fast forwarded to where Mr B Herron (GOOD) spoke.
Adv Golden: And Mr Xaso who is that?
Mr Xaso: That’s Hon Yako (EFF).
Adv Golden: Ms Yako?
Mr Xaso: Yes.
Adv Golden: At the risk of stating the obvious, she was not recognised, she interrupted Mr Herron?
Mr Xaso: That's right.
Adv Golden: Thank you, we can continue.
The video was paused when Ms Yako verbally argued with the Speaker.
Adv Golden: Mr Xaso, on 547 of the unrevised Hansard, what did the Speaker ask, what did Ms Yako say and what did the Speaker ask her to do?
Mr Xaso: To withdraw, “The Member is lying”.
Adv Golden: And then the Speaker after that?
Mr Xaso: Member to withdraw that and the Member said I am not going to withdraw.
Adv Golden: Thank you, we can continue.
The video was paused when Ms L Arries (EFF) spoke from the virtual platform.
Adv Golden: Mr Xaso, who was that speaking to the Speaker in the red scarf?
Mr Xaso: That was Ms Ntlangwini (EFF).
Adv Golden: And was she given an opportunity to speak?
Mr Xaso: Yes, she was.
Adv Golden: OK if we can proceed thank you.
The video was paused when the Speaker and a female EFF member were in an intense argument.
Adv Golden: We can pause there please. Is it an accurate description to say that she was pleading with him to leave?
Mr Xaso: Yes, she was urging them to.
Adv Golden: Yes, and this is not after the suspension of the House when the House readjourned?
Mr Xaso: That's correct.
Adv Golden: I just want to confirm this, you've already testified to this but she had asked him to leave before the suspension already, certainly Ms Yako.
Mr Xaso: Yako was asked to leave after the suspension.
Adv Golden: Not before?
Mr Xaso: After she said “lying”.
Adv Golden: And Ms Tafeni?
Mr Xaso: Hon Tafeni should have left before the suspension, but she did not leave before the suspension.
Adv Golden: So the Speaker was readdressing that with her at this point in time?
Mr Xaso: That is correct.
Adv Golden: Thank you we can continue.
Adv Golden instructed the technician to pause as Ms Msane spoke on the virtual platform.
Adv Golden: Mr Xaso, the Speaker has again asked Ms Yako and Ms Tafeni to leave and at the risk of stating the obvious you confirmed that they’re refusing to leave?
Mr Xaso: Yes.
Adv Golden: Thank you we can proceed.
Adv Golden: We still see that that Ms Tafeni will be removed now, but in relation to Ms Yako, Mr Xaso, we see that she is constantly from the video talking, interrupting the Speaker. Was she given an opportunity to speak to the Speaker, recognise her?
Mr Xaso: No.
Adv Golden: Can we go ahead, thank you?
Adv Golden: So the female PPS members have come into remove Ms Tafeni. Can we just get that picture back please? What do we see, what is Ms Yako doing?
Mr Xaso: We see Hon Yako, Hon Madokwe and Hon Ntlangwini interfering with the removal of the Member from the House.
Adv Ka-Siboto: Excuse me Chairperson, sorry, excuse me Chairperson, with your permission, can I please address you?
Chairperson: Yes Advocate.
Adv Ka-Siboto: Thank you so much Chairperson. We're back here again. This morning, a factual claim is put to Mr Xaso which suggests an answer that female PPS members were inside the House trying to remove my client. And the Committee accepts that as a correct version. But what you see on that shot is both male and female PPS members and Mr Xaso does not correct that. What you also hear from my client is that [Xhosa language], for the benefit of non-Xhosa Speakers, that is translated to tell these male PPS members to leave the House. Because what came before that is the Speaker saying only female PPS members may remove female Members of Parliament. What you see in that shot which is what Members complained about, male PPS members. So that is an accurate version, at least it is not a true reflection of what you see in the shot. This is an important point because the defence at least as far as Ms Chirwa’s concerned is that she is concerned about the harassment of women by male PPS members - in that the Speaker had ruled that they not be in the House - so can that version be put accurately? And I ask yet again Chairperson that you make a ruling about leading questions because that is how we get to these inaccuracies or incomplete pictures, thank you Chair. I ask for your ruling in that respect.
Chairperson: Thank you Adv Ka-Siboto. Advocate Golden, you have anything to say?
Adv Golden: Yes thank you Chair. Chair, that wasn't a leading question. And my very short answer is that whatever objections, points of clarity or cross examination questions that my learned friend has can appropriately be put to Mr Xaso in cross examination. He will have his opportunity, thank you. May I proceed?
Chairperson: Thank you Advocate Golden. Adv Ka-Siboto, as I request Adv Golden to consider asking leading questions, is it possible that the matter you raised of inaccuracies be part for cross questioning, for cross examining Mr Xaso later? We don’t have to deal with it now, we’re noting it and you also take it to that time when we will be cross examining but we've noted your point thank you.
Adv Ka-Siboto: Chairperson, I don't intend to, thank you Chairperson, I don't intend to be difficult. I'm just simply asking for your ruling directed at the Initiator. I'm not asking for an engagement. I'm simply asking you to remind the Initiator what you did yesterday that she does not ask leading questions. It does not matter that I've got an opportunity to cross examine. As a matter of procedure, an Initiator is not supposed to ask leading question. That's the simple point I make particularly if the witness just accepts that version and doesn't correct it. The impression that is created in the minds of the Committee members is that that is fact; they take notes and then they adjudicate on the basis of inaccuracies. I'm just simply asking for a ruling directed at the Initiator not to ask leading questions. I'm not opening up a debate Speaker.
Chairperson: Thank you thank you advocates. As we continue Adv Golden, please consider the request that we make, no leading questions we can continue.
Adv Golden: Madam Madam Chair…
Chairperson: Please be mindful also that tea is in 15 minutes, the tea break is in 15 minutes as you continue.
Adv Golden: Yes thank you, so I will continue Madam Chair. Mr Xaso, before you, before I ask you a question on this very issue, can we just ask the technician to replay the last, say 10 seconds please?
Adv Golden: Mr Xaso, can we please leave the video recording picture on the screen, thank you. Mr Xaso, what do you observe, the PPS has now been called in to remove Ms Tafeni. Please take it from there and describe what should be obvious from the video recording thank you.
Mr Xaso: PPS has been called in to remove Hon Tafeni and I see Hon Madokwe, Hon Yako and Hon Ntlangwini interfering with the removal of the Member.
Adv Golden: Who are the PPS members that are approaching or that are close to Ms Tafeni?
Mr Xaso: I don't know their names but I see there's PPS female colleagues and of course there seems to be a male colleague on this side of the Member. I think Ms Ntlangwini, maybe if the video could move I’ll be able to see everyone which is there.
Adv Golden: Yes thank you. Play the video thank you.
Adv Golden: What happens to the two male [PPS] members on the side?
Mr Xaso: The two males moving back and three female colleagues remaining close to Ms Tafeni.
Adv Golden: Thank you we can continue.
Adv Golden: Mr Xaso, we've now heard what the Speaker said. She's just reminding the PPS no male Members must remove the female members of the EFF. We have also seen the male members of the PPS step back. In terms of what you see, are there any male members surrounding Ms Tafeni and the other EFF members?
Mr Xaso: No I don't, not in close proximity, there may be at the doors.
Adv Golden: Thank you, so we are left with female [PPS] members by Ms Tafeni, is that correct?
Mr Xaso: That is correct.
Adv Golden: Yes, so what was the other EFF colleagues doing, Ms Yako, Ms Ntlangwini and Ms Maotwe, what are they doing? Are they still allowing the female PPS members to remove Ms Tafeni?
Mr Xaso: They seem to be pointing out that one of the colleagues, I think they call her Beauty, which according to them was not supposed to remove Ms Tafeni and yes.
Adv Golden: There are female Members there but what are they doing? Are they allowing her to be removed?
Mr Xaso: No they are not allowing her to be removed, yes.
Adv Golden: Thank you, can we play again please? OK continue.
Adv Golden: So we see that Ms Tafeni that she ultimately left?
Mr Xaso: Yes.
Adv Golden: Thank you we can continue with the video.
Adv Golden: Mr Xaso, who was that that spoke and interrupted?
Mr Xaso: That’s Hon Montwedi (EFF, North West).
Adv Golden: Yes thank you. Just for the technician, can you fast forward the tape now to about 3 hours into the video chat?
Adv Golden: Mr Xaso, can you just confirm the ruling that the Speaker made?
Mr Xaso: Just two things; that she would not take points of order on matters she had already ruled on. And also towards the end she then says I'm no more allowing points of order from both all sides from all parties.
Adv Golden: Thank you we can continue.
Adv Golden: Mr Xaso, can you just describe what you've observed? The Speaker has made a ruling. She's now engaging with Mr Montwedi. and what is Mr Montwedi doing?
Mr Xaso: The Speaker has ruled that she's not taking points of order and Hon Member tried to intervene and the Speaker repeated. Also Hon Ntlangwini at some points said, "No, no Speaker" and then Speaker says to Hon Montwedi he must switch off his mic. But of course the Member has not complied with that.
Adv Golden: Does Mr Montwedi then continue to listen to the Speaker or does he just continue to interrupt?
Mr Xaso: He continues to speak. Later on, he says, "I want to know if you are running this House in terms of the rules or you're running this House in terms of what you think must happen". So that's the Hon Member speaking.
Adv Golden: Yes and then also I refer the committee to page 595 of the unrevised Hansard, you do have that in your bundle. We can continue with the video clip thank you.
Adv Golden: Mr Xaso, what is happening now?
Mr Xaso: After the Speaker has demonstrated extreme patience, she then directs the Member to leave the House.
Adv Golden: We can continue.
15 min Tea Break
Adv Golden: Mr Xaso, what is happening now?
Mr Xaso: We are at that point where the Speaker has made a determination that Hon Ntlangwini of course was disrespecting the authority and that she must now leave the chamber.
Adv Golden: Thank you we can continue.
Adv Golden: Mr Xaso, with reference to page 605 of the unrevised Hansard, what was the response of Hon Ntlangwini? What did she tell the Speaker when the Speaker ordered her to leave the House?
Mr Xaso: It says, No, they must speak, they are Members of the House and the Speaker says please leave the House. She says it's not going to happen.
Adv Golden: Since we are here, we might just complete this point at the bottom of the Hansard on page 605. Mr Montwedi also interrupts and what does he say if you can just read into the record?
Mr Xaso: Order Speaker, Chairperson. Just for the day to run; we can continue the tape.
Adv Golden: Yes we can continue with the tape.
Adv Golden: The PPS is inside, who are they approaching?
Mr Xaso: They are approaching Hon Montwedi.
Adv Golden: Hon Montwedi?
Mr Xaso: Yes.
Adv Golden: Yes and why was it necessary for them to come in?
Mr Xaso: It is because he had not left when Speaker said he must leave.
Adv Golden: Thank you we can roll the tape.
Adv Golden: Mr Xaso, at the risk of describing the obvious, what do you see?
Mr Xaso: I see resisting, fighting with the Protection Services as they try to remove him.
Adv Golden: Thank you we can continue.
Adv Golden: The Speaker's now turned her attention to Ms Yako. What has Yako done and what is the Speaker, how is the Speaker responding?
Mr Xaso: The Speaker just emphasised to Hon Mandela that she's not taking points and then he obviously complied. And then Hon Yako rises on a point of order and of course Speaker had already explained that she's not taking points of order and that was in defiance of her order in the matter.
Adv Golden: Thank you we can continue.
Adv Golden: Mr Xaso, how would you describe Maotwe’s behaviour?
Mr Xaso: The Speaker asked her to leave the chamber and she did not leave the chamber and she continued to intervene.
Adv Golden: It's because of that the Sergeant-at-Arms is now called in. And we'll continue.
Adv Golden: Thank you Mr Xaso, we've heard previously that the Speaker had already ruled that the online platform is muted, you confirm that?
Mr Xaso: Yes.
Adv Golden: So what is Ms Maotwe insisting the Speaker do?
Mr Xaso: That Speaker must change her ruling basically.
Adv Golden: Thank you. Continue.
Adv Golden: Thank you, Mr Xaso, we've now seen Ms Maotwe has left with not too much resistance. Female PPS members escorted her out. Who is the next EFF member that raises a point of order?
Mr Xaso: It is Hon Madlingozi (EFF, Gauteng).
Adv Golden: Yes can we continue.
Adv Golden: The audio is not so good at this juncture, Mr Xaso, but with reference to page 619 and 620 of the unrevised Hansard, Mr Xaso, who is that that has interrupted the Speaker?
Mr Xaso: It is Hon Matumba (EFF, Gauteng). And with the permission of that Chair, I thought maybe we could just play further so that I can give…
Adv Golden: Yes I just wanted you to identify first. We can continue.
Adv Golden: So if you could just describe to us what has been happening and why is Mr Matumba being asked to leave.
Mr Xaso: The Speaker had ruled that no points of order, and I mean, Hon Madlingozi had just left the House, assisted by Sergeant-at-Arms on the same issue. And the Member now rises to raise a point of order despite what has been ruled and that is really where the issue begins. Now there's an exchange between the Hon Member and the Speaker in contravention of the rules. Because the rules say the Speaker must be heard without interruption in any event.
Adv Golden: Is he respecting the ruling and the ruling of the Speaker and her authority?
Mr Xaso: He’s disregarding the authority of the Speaker.
Adv Golden: Continue.
Adv Golden: Mr Xaso, in relation to the statement that was made by the Speaker, what happened with the Sergeant-at-Arms?
Mr Xaso: Sergeant-at-Arms was pushed by the Member. So the Member interfered in the performance of his duties and he pushed him and the Speaker made note of that.
Adv Golden: Thank you we can continue with the video clip.
Adv Golden: Other than the issue of the points of order, what was the other issue that was raised related to the other Member, Ms Mkhonto?
Adv Golden: Yes we can just go back about ten seconds?
Adv Golden: With reference to page 620 of the unrevised Hansard, what was Ms Mkhonto insisting?
Mr Xaso: She's asking that those people in the virtual platform be unmuted. Speaker, Speaker, I'm not sympathising with anyone, please unmute all those Members of Parliament. Speaker, unmute them, Speaker, they have the right to talk in Parliament…
Adv Golden: Thank you.
Mr Xaso: … constituencies which they are representing here.
Adv Golden: Thank you and then of course we know already because it's already evident that the Speaker had already ruled in relation to the online platform?
Mr Xaso: Yes.
Adv Golden: Thank you in addition to the fact that there's no more points of order?
Mr Xaso: Yes.
Mr Xaso: We can continue, just the last little bit.
Adv Golden: That is the end of the removal of all the Members on 10th of June 2022, thank you, the evidence-in-chief, Mr Xaso. Before we proceed to cross examination, may I just have the opportunity, with your permission, to place on the record the affidavits that we have submitted and prepared for this hearing?
Chairperson: Permission granted.
Adv Golden: Thank you Chair. Chair, I want to confirm to the committee it should be part of your bundle, as the affidavits of Mr Tebello Maleeme, who is the Acting Sergeant-at-Arms, and we've also seen him on the video recording; the affidavit of Mr Nishkar Maganlal, the affidavit of Nigel van Ster, and Ms Lesley Ann Brian. I want to confirm that there has been, and I asked that they be submitted onto the report. Subject to the cross examination of Mr Xaso and any issues that may arise, we reserve the right to call additional witnesses, but I ask that the affidavits be submitted onto the record, thank you.
The Chairperson thanked the Initiator and indicated that the cross-examination may commence.
Cross examination of Mr Xaso
Adv Ka-Siboto: Good afternoon, Mr Xaso.
Mr Xaso: Good afternoon Mr Ka-Siboto.
Adv Ka-Siboto: It’s good to see you again.
Mr Xaso: Same here.
Adv Ka-Siboto: I want to start with this, if I understood your testimony, that there's a lot that happens before we get here. By that, I mean, if that charged Members in front of this committee would start off for their impugned conduct, that would be the starting point, isn't it?
Mr Xaso: yes.
Adv Ka-Siboto: And you had set out the steps that led to this hearing, not so?
Mr Xaso: For this particular hearing, yes, I am…
Adv Ka-Siboto: Sorry, I couldn't hear that.
Mr Xaso: I'm saying with this particular hearing, yes, I have.
Adv Ka-Siboto: If you don't mind just in brief tell me when Members conduct themselves in the National Assembly as they have on the 9th and the 10th and are charged as they have, what would have been the procedure before we get here?
Mr Xaso: What would happen. When the situation happens in the House where there is physical removal of Members, the matter is then referred to a Subcommittee of the House, called the Subcommittee on Physical Removal of Members from Chamber. That committee would then meet and express itself on the circumstances. The members of the Subcommittee have functions that include looking at the conduct of the Member concerned, the ruling by the presiding officer and the manner in which the Member was removed. That is in terms of Rule 203 of the National Assembly. The Subcommittee then reports these findings to the Rules Committee of the National Assembly in terms of Rule 203 of the same rules of the National Assembly. The Rules Committee then considers the matter and decides what ought to happen with the report of the Subcommittee. It is not every case that will end up with the Powers and Privileges Committee. There are committees at liberty to decide where matters must be referred to. For contempt of Parliament, the natural structure that must deal with that would be the Powers and Privileges Committee. The report of the Rules Committee does not say Members must be charged. In other words, we need to replace matters here when the matter are referred to here. It is impossible to reduce committee that applies itself to the issues referred to it and decides whether there's a basis to charge Members or not. To charge Members in the event that there is a basis, that's where we end up here. The fact that we are here, the committee felt that there was a basis to charge Members. I think I do have to state this, that the Speaker is not part of this committee; it happens that she is the Chair of the Rules Committee. She does not participate in the affairs of this committee and of course this committee then reports back to the House. Then the last point – for their sake and maybe anyone else who may be interested in the matter – it is not that matters must travel that journey that I've just indicated now; it is not always the case that they must do that. It could very well be that a matter of contempt is raised to the House or with the Speaker directly and the Speaker refers it to this committee without going through those structures, thank you.
Adv Ka-Siboto: Thank you for that Mr Xaso. If I understand you correctly, then if this Committee decides to charge or not, it would be fair to say then they are both the complainant and the judge in this matter, aren't they?
Mr Xaso: No, I may not, I know I may not comment on that because that is a legal question. But remember that this committee must go to the House, the National Assembly, which must take the ultimate decision.
Adv Ka-Siboto: But I'm concerned about this step. Before the House accepts what you're saying about the recommendations to the House, I'm really concerned about this particular step. Then maybe put the question this way. One must assume that this committee would have applied its mind before charging the Members that are charged here, not so?
Mr Xaso: I'd prefer using the word 'system' but yes.
Adv Ka-Siboto: And if that's the case then they've got preconceived notions of the guilt or otherwise of the Members in this hearing, not so?
Mr Xaso: I don't, I don't, I don't agree to that because I don't know what, what they have in mind. What I know is that these Members have been charged and this process is supposed to determine according to the committee the guilt or otherwise of these Members. I think I should make this point that there have been cases, at least a case that has been accepted before this committee which was referred to this committee and the committee in the end concluded that there was no basis to charge the Members. That related to a SONA incident. So the preconceived ideas on matters are really… it'll be for the committee to talk about that.
Adv Ka-Siboto: But surely the answer can't be 'I don't agree' and then you follow your 'I don't agree' with 'I don't know what is in their state of mind'; it isn't a proper answer. 'I don't know' rather than 'I don't agree because it is speculating' or you don't want to speculate on what's in their minds, isn't the proper answer.
Mr Xaso: Chair, the reason that I am answering in this manner is because I don't agree with that view and of course that's my personal view but it is for the committee to express itself on the matter.
Adv Ka-Siboto: The proposition that I am simply putting to you Mr Xaso is this, if you say the consideration as to whether to charge my clients or not falls within the purview of this committee, and this committee decides to charge the Members before any evidence is laid before them… at a conceptual level, you must accept a preconceived notion as to the guilt or not of the Members, just at a conceptual level.
Mr Xaso: Chairperson, my view is that, of course the committee gets advice on its work and their view would have been that there may be a basis to interrogate this issue; hence charging the Members. But that does not mean that the committee has predetermined the outcome; otherwise we would not be here. At least that's what I think. But again Chair I must emphasise that I am not the committee. I am a witness here on matters that happened in the House on the 9th and the 10th of June. I am not the clerk of the committee, I am not the adviser to the committee, I am not here to advise on the functioning of the committee or its effectiveness as well. I'm aware I'm not here to be a witness on the functioning of the committee, but I'm here to be a witness on the events of 9 and 10 June 2022, thank you Chairperson.
Adv Ka-Siboto: Let me cut to the chase. The purpose of my line of examination is to evidence, yet again, the procedural difficulties we have. I suggest to you that this committee sits as the complainant in the sense that it has referred to itself people that it takes the view of guilty. Because if the committee did not take that view, these Members wouldn't be here referring those Members to themselves. Hence, I say as a matter of principle, you must accept, they are therefore complainants and judges in respect of my Members and you've given me your view on it. It was for the plain process of placing it on record for the coming litigation. That was the purpose of that line of questioning. And I appreciate your responses to it and I equally appreciate the difficulty I'm placing you in because you are not the committee. I accept that and I also equally accept you don't advise them. I simply ask you these questions because they're a lawyer yourself and to the extent you had answers. I would have appreciated them but I equally appreciate that you're saying you’re in no position to answer those questions. Let me then proceed. It seems to me that there is a quite an extensive process that leads to where we are. Would you accept that on the basis of the narration we've given earlier?
Mr Xaso: Yes I would say that yes.
Adv Ka-Siboto: There's quite a number of people that are involved in reviewing the evidence that has been presented here before we get here? You would equally accept that, wouldn't you?
Mr Xaso: I would accept that. There's a subcommittee in the House committee that looked at the business of the day. Yes.
Adv Ka-Siboto: And of course, you'd advise the National Assembly in that process on procedure, wouldn't you?
Mr Xaso: Just advise.
Adv Ka-Siboto: So you don't think your influence in advising in this matter as well increased…
Adv Golden: Sorry Madam Chair, if I may just clarify something and if appropriate objection.
Chairperson: Yes Adv Golden.
Adv Golden: Thank you Chair. If I have listened accurately, I apologise if I've not. My learned friend put to Mr Xaso that there's a number of people beforehand had reviewed the evidence relating to the charges. I think that is what Mr Ka-Siboto said. That is not correct. No one reviews the evidence before the hearing commences. The only committee and people who review the evidence relating to the conduct of the Members is this committee in this hearing. I just needed to place that on record.
Chairperson: Thank you. Advocate, is that what you mean?
Adv Ka-Siboto: Chairperson, I'm going to have a problem, I'm going to have a problem if I ask a question in cross examination, the Initiator interjects and answers the question. It is appropriate for her to raise an objection. We engaged on the objection if she is saying my question is misleading, then she must say so, not answer the question. That is a big, big problem for me. If Mr Xaso does not understand the question, then you must tell me he doesn't understand the question. If the Initiator has a problem with my question, she must tell me what the problem's with my question. And if I accept, I rephrase the question. I'm going to ask the Speaker that you direct the Initiator to follow that line going forward. I'm asking for your review on that Chair.
Chairperson: Thanks Adv Ka-Siboto, Adv Golden this is the response that you don't respond on behalf of the witness. Unless an objection [is raised], so that you engage on the objection.
Adv Golden: Sorry could you just repeat that? Your connection is quite bad, we couldn't hear.
Chairperson: I was saying Advocate is indicating that you responded on behalf of the witness instead of raising an objection so we will request that we follow the correct procedure – so that we won't get any hiccups move forward. If the rules say that you cross examine, you can object, so that we engage on the objection. Let's follow that so that we don't encounter this kind of dissatisfaction that the Initiator is responding or giving responses. We are noting that and please note also that you are allowed to raise an objection in such instances where you're not satisfied about the line of questioning…
Adv Golden: Sorry we could not hear at all what you were saying. Your response to us on the online platform is very broken and distorted. But in order to move things forward, I'm happy to address that issue in re-examination and allow my friend to continue.
Chairperson: Please do that. I have tried to change my device. Advocate, we've noted, we have requested from you, for the other advocate to raise objections instead.
Adv Ka-Siboto: Chairperson, it's not good enough that I'm receiving the answer from the Initiator saying she will address the issue later. I want an affirmative confirmation that she will not answer questions on behalf of the witness and it should give… I want her to specifically state that she doesn't do it. It is simply not good enough for me, to say she would deal with the issue later on. It was that that exposes us to this very challenge again down the line. I would prefer perhaps we adjourn when you apply your mind to the point, Chair, and then you come back with the ruling. Because clearly the Initiator will not give an undertaking that she will not answer on behalf of the witness under cross examination – that I would not let go of.
Chairperson: With respect, I have indicated to Adv Golden that as you requested she has to raise an objection instead of answering for the witness. This is my ruling that she refrain from that; instead raise an objection. I will not know as to when will she respond but I was saying to her for us to proceed, she must raise objections as you suggested instead.
Adv Ka-Siboto: Chair, I'm happy with that ruling. Mr Xaso, I was following a line of examination and I'm putting it to you that before this committee sits, there is an obvious… specifically the videos that we've seen today would have been served in front of the people that applied their minds before we get here. They would have viewed this footage, not so?
Mr Xaso: Remember that this footage is a public record, so certainly the Subcommittee had access to this video footage, and also everyone who wants to.
Adv Ka-Siboto: Thanks, and of course you confirm that you advise Parliament and you advise them on this matter, not so?
Mr Xaso: I advised the Subcommittee on the Physical Removal of Members; I advised the Rules Committee to the extent of their mandates.
Adv Ka-Siboto: Yes, and in the course of you giving advice, you would have watched this video, not so?
Mr Xaso: I watched the videos. I mean I was in the House as you know obviously. I watched the videos and then I continue to watch the videos and I will watch the videos even after this hearing.
Adv Ka-Siboto: Thank you and I mentioned the intention behind watching the videos is to identify but … let me start with the rulings by the Speaker, that would be the intention behind watching the videos now.
Mr Xaso: Just to refamiliarise myself with the proceedings, yes.
Adv Ka-Siboto: And I would imagine you'd have satisfied yourself that the evidence you led today is true not so?
Mr Xaso: I would, I would have satisfied myself that I've led the evidence to the best of my ability and if there is anything that needs to be clarified, I'm happy to clarify that.
Adv Ka-Siboto: Let me start with one of the charged Members. You have testified that this committee has charged one of my clients by the name of Ms Mkhonto and you filed evidence with respect of her, not so? She physically resisted being kicked out of the House and so on, not so?
Mr Xaso: The charges, actually allow me to go to the charges before I say.
Adv Ka-Siboto: Yes of course that would be page 68 of the bundle, page 69. One of the charges says 'You continued to refuse to leave the chamber' are you there?
Mr Xaso: Yes.
Adv Ka-Siboto: Alright. 'You continued to refuse to leave the chamber when the Sergeant-at-Arms requested you to leave. I imagine the chamber, you were talking about the physical building of the National Assembly.
Mr Xaso: Yes.
Adv Ka-Siboto: The presiding officer, that would be the Speaker, not so?
Mr Xaso: That's right.
Adv Ka-Siboto: 'She then instructed the Parliament Protection Services to remove you from the chamber' and so, yes 'and that your conduct in improperly interfering with the exercise of performance by the House authority and functions', not so?
Mr Xaso: That's correct.
Adv Ka-Siboto: That obviously would have required her to be physically present at the chamber, isn't it?
Mr Xaso: Yes.
Adv Ka-Siboto: I put it to you that Ms Mkhonto was never in the chamber on that day, what would your response be?
Mr Xaso: Chair, I mean if we, if I misidentified here, I’ll take that. But the Member that I saw on the screen was Mkhonto.
Adv Ka-Siboto: I'm telling you that's not Ms Mkhonto.
Mr Xaso: Then my response to that, verify that Member’s identity. If it is not Ms Mkhonto, then I accept it is not Ms Mkhonto.
Adv Ka-Siboto: And if it's not Ms Mkhonto, then she is improperly charged not so?
Mr Xaso: If it's not a Member, yes she would be improperly charged in this instance. If what I'm putting to you is not correct, I’ll have to verify that because as I'm concerned, as I said, to the best of my ability.
Adv Ka-Siboto: Ms Mkhonto as a Member, you don't have to verify that. Maybe they let me assist you. Do you perhaps want to take us to identify the person you called at some point? I did mention you'll be right at the end of the video because that's the last testimony you gave. I'm afraid, Mr Xaso, you're not allowed to use the cell phone in cross examination. Chairperson, if I can ask that Mr Xaso is asked not to be used this cell phone under cross examination, please can you give that ruling?
Chairperson: Thanks, Adv Ka-Siboto. Mr Xaso, please refrain from using the cell phone before we proceed. I also see the hands of Hon Mlenzana and Hon Xaba. I don't know who wants to come in at this moment.
Adv Ka-Siboto: Just before they come in, can I please ask this out of caution? I mean no disrespect to Mlenzana MP and Xaba MP. I just want to be very careful here. Can I ask that the contributions they're going to make will not speak to the question that I’ve just put or suggest anything in relation to the question I'm obviously going to say. In the interest of protecting my clients, that they do not comment on this particular question. Can I ask for that ruling, Chair?
Chairperson: Can we listen to Hon Mlenzana and Hon Xaba? They have heard what you said.
Mr Mlenzana: I will be careful Advocate not to cross the lines. I raised the hand at the time when Adv Ka-Siboto was raised. In fact, the first question and my hand was raised, not necessarily to deal with the content or the manner in which he was asking. It was on procedural matters. Now the question that he was actually asking and I’m putting this on record, the question he was actually asking ordering on the business of the committee today, of having had a preconceived view in terms of a decision as to whether Members are guilty or not. And that I wanted to correct.
Mr Xaba: My thought and I wanted to correct that but thank you for raising this. To put it on record, Chair, I think in line with what Hon Mlenzana has also raised we are listening attentively to the cross examination. It does not suggest tampering into the work and to cast aspersions, even the decisions of what the committee would finally recommend to the House. So it was the cross examination questions, I just only want the Chairperson to request that remember each party is given an opportunity to ask. Don't tamper into other work of the other committee because as we are not tampering with the legal personnel. I think I rise to support Hon Mlenzana and I say don't cast aspersions.
Chairperson: Points are taken. Can we proceed?
Adv Ka-Siboto: Chair, I'm sure I'm not the only one who is physically in this chamber who could not share what was being said. I see the Initiator is nodding her head. I presume there was a criticism of my line of questioning. I'm not too sure what the complaint was and I’ll just proceed. And I asked that Chair, if I crossed the line or I do something I'm being told not to do, it is not disrespect to any of the Speakers or you Chair. I just simply did not hear and if you need to interrupt me at any point please do Chair. Mr Xaso, then I’d suggested to you that Ms Mkhonto was not in the, in the chamber at the time. I'm asking you again. Do you insist that it is her? Do you want an opportunity to replay the video and identify the person you called Ms Mkhonto or do you retract your identification of that person as misinformed?
Mr Xaso: My, my response is that when I said it was Ms Mkhonto is because I believe that was Ms Mkhonto. I accept that I may be incorrect. I accept that I may be incorrect because what, what it would mean, I must verify the picture of the Member. In fact, when I was trying to open the phone I wanted to do that exactly. But I accept if it's not Ms Mkhonto, then it is not Ms Mkhonto. Then I was wrong, then I’ll accept.
Adv ka-Siboto: do you know Ms Mkhonto?
Mr Xaso: Chairperson, I deal with 400 Members. I don't know all of them. So often I have to verify the faces of the Members that sometimes to know that this is the Member. And so I know I've seen ms Mkhonto but I cannot say that I know her. I've seen Ms Mkhonto as much as I've seen any other Members of the House.
Adv Ka-Siboto: So you testified to us Ms Mkhonto, did verify it was Ms Mkhonto?
Mr Xaso: Chairperson, I did not check the records because I just followed the video and identified her as Ms Mkhonto and that is really what I'm saying. So if it is not Ms Mkhonto, I accept it's not Ms Mkhonto and I will, I will take that. what I said here is because I believe it was Ms Mkhonto and I may be wrong that I accept.
Adv Ka-Siboto: I'm going to have to press for a yes or no. Did you verify it was Ms Mkhonto before you confirmed it was Ms Mkhonto?
Mr Xaso: No I did not verify.
Adv Ka-Siboto: Yes, yes and that's the point. You did not verify yes. And if it is not Ms Mkhonto as I'm telling you, then the charges must against her stand to withdraw.
Mr Xaso: Chairperson, that would be for the committee to withdraw the charges or not. I’m here I'm just giving the responses as I'm asked.
Adv Ka-Siboto: And if they were to ask your advice what would your advice be?
Mr Xaso: I don't advise the committee, so I will not advise the committee. I'm here as a witness not as advisor to the committee.
Adv Ka-Siboto: I'm asking you a question in principle. If anyone you advise, let's say the Subcommittee, let's say with the Subcommittee which you advise and they ask you, faced with the fact where we've charged a Member for something they did not do, what would you advise to that committee or subcommittee as an advisor?
Mr Xaso: Chair, I mean the Subcommittee does not charge people. But if we misidentify the person then we misidentify the person so that is the wrong person and you can't charge the wrong person.
Adv Ka-Siboto: So yes and you again, I make this point and I've made this point over and over again. Yet again we see the problem with the process of this committee. And I'm putting this to you as a proposition. You as a seasoned advisor such as yourself, just confirmed you did not verify the identity of a Member that you have positively under oath confirmed to be guilty of charges and now you concede to not even have verified the identity. You can appreciate why we haven't issued a better starting point, you can equally appreciate why we've got a problem with this multilayered process. That includes subcommittees that includes this committee viewing the same video, undertaking the same exercise of verifying. Yet all of them including the members of this committee miss such an important issue. You will then begin to understand our initial submission as to why there must be an independent fact-finding process. As a matter of principle, the answer should be yes or no, can you appreciate the complaint that my clients are raising with the committee processes?
Mr Xaso: No I don't appreciate them.
Adv Ka-Siboto: Thank you. Let's deal with this. I start my second line of cross examination, Chairperson, perhaps this is the time, it's 1:00, to take the lunch adjournment until 2:00 and resume. I'll take the directive from you.
Chairperson: It's 45 minutes usually to take that. Then everybody must be back at 1:45.
After the break, the Chairperson indicated that Adv Ka-Siboto may continue with cross examination.
Adv Ka-Siboto: Thank you, Chairperson, thank you. Good afternoon again Mr Xaso. Before we went on the lunch adjournment, I'd made the suggestion that you do not pay due regards to your functions by not verifying the people that were charged. I want to take that proposal further. I want to also suggest that it also means now when I say it's the fact that Ms Mkhonto was charged, it also means the Subcommittee on Physical Removals also did not perform their functions properly. Can you accept that as a proposal to the committee?
Mr Xaso: The Subcommittee of the Rules Committee performed this function properly and so I don't accept that proposal.
Adv Ka-Siboto: How can it have properly applied its mind to the case of Ms Mkhonto if we know that she should not have been charged?
Adv Golden: Sorry I must object at this stage, Madam Chair.
Adv Golden: Thank you, Chair. I feel compelled to object at this stage. The supposition that Mr Ka-Siboto put to Mr Xaso – in other words, he put to him now that we accept that the charges must be withdrawn. Mr Xaso did not accept that at all nor did he make the concession that those charges must be withdrawn. The only charges that can be withdrawn and if it is withdrawn procedurally we now know it's already on the record, can only be done by this committee. So I must object to that. That is a flawed and then factually incorrect proposition that is put to the witness. It's not fair to him.
Chairperson: Advocate, thank you.
Adv Ka-Siboto: Chairperson, the question I was asking is this, I'm not going to respond to the objection, let's move on the proposal that I made to you is that can we then agree that the committee will make the determination on that? I'm happy with that.
Adv Golden: Chair sorry sorry through you, you may also then ask that Mr Ka-Siboto is also duly warned – propositions to the witness is to be fair to the witness.
Chairperson: Advocate, the committee is the one that will deal with the withdrawal or non withdrawal of the charges as a correct structure that we indicated when we started here. We are investigating and will report to Parliament as correctly said so. Please refrain from doing that. To withdraw such propositions as indicated so that we don't get hiccups as we deal with your cross examination. Thank you.
Adv Ka-Siboto: Chairperson, and I accept your ruling. Just to assist in that respect. All I simply said is a proposition put to Mr Xaso that if she was not in there then she shouldn't be charged. That's all I was dealing with. That is not a factual inaccuracy; it was his own evidence. But I'm happy to accept your ruling and I'll move on and I promise, as I haven't put in a factually incorrect supposition. Mr Xaso, the proposition then made to you is that Subcommittee on Physical Removals clearly then did not properly apply its mind at least to the… I'll show you in other instances where there's incorrect application, and that your evidence was false. But I'm now just dealing with Ms Mkhonto. I'm saying to you if your evidence is that the Subcommittee ought to have applied its mind to the facts and we accept or at least I put it to you that they want to then have properly applied their minds. Then at some point at that committee, it should have been noted that Ms Mkhonto is not guilty of at least charge three. And you're saying you do not accept that. You say the Subcommittee did its job. Now my question is this, how can they have properly done their job if I am correct that Ms Mkhonto is not available at the chamber?
Mr Xaso: I think I should make this point which I made before. The Subcommittee does not charge people. The House does not charge people. The Rules Committee does not charge people and did not charge people. So my submission, Chair and the committee, and my response to Mr Ka-Siboto is that the committee did apply itself properly on the issue. There may very well be that there was a misidentification of that person which was a genuine omission and even on my part. But the committee did apply itself and it of course will be for this committee to consider all those factors when it gets to that point.
Adv Ka-Siboto: The further proposal I'm putting to you is that in the same vein you, the Subcommittee on Physical Removals, had not applied their minds; the same can be said about the Rules Committee. Because it too did not raise the fact that Ms Mkhonto was not at the chamber. Is that fair to say?
Mr Xaso: Chair, as I indicated, the Rules Committee, the Subcommittee applied themselves properly [to]the issue.
Adv Ka-Siboto: And in the same vein I am accusing you, the Subcommittee on the Physical Removal the committee on the Rules Committee, in the same way I accuse them of not properly applying their minds, this committee did not apply its mind before it made the recommendations to charge Ms Mkhonto. Do you have a comment?
Mr Xaso: The committee will answer for itself, Chairperson. That's not for me to respond.
Adv Ka-Siboto: You saying that's for you to respond?
Mr Xaso: It's not for me to respond to that.
Adv Ka-Siboto: Why is it for you to respond on the Rules Committee?
Mr Xaso: Because I support the Rules Committee and I advise the Rules Committee and the Subcommittee. I don't advise this committee. So it is for this committee to deal with that matter.
Adv Ka-siboto: Why is it for you to speak on behalf of the physical removal and the Rules Committee?
Mr Xaso: If you may, Chairperson, if Mr Ka-Siboto can repeat the question?
Adv Ka-Siboto: I'm saying you are not prepared to speak on behalf of this committee. You're saying it will speak for itself. Yet you're prepared to speak on the other Subcommittees and I'm saying why.
Mr Xaso: I'm not sure why it should be an issue. I'm speaking here for what happened in the House on the days in question. I mean that that would have been the query why I must be for the House. And I'm speaking here for what happened in the Subcommittee. And the Rules Committee because I've indicated I advised those committees.
Adv Ka-Siboto: Very well, but you can accept that inasmuch as you advise them, they remain human beings, that means those Subcommittees, not so?
Mr Xaso: Yes I accept that.
Adv Ka-Siboto: Which is obvious and they've got their own minds, don't they?
Mr Xaso: They do have their own minds
Adv Ka-Siboto: And you had suggested earlier on, you will not purport to speak on behalf of anyone including the Speaker, did you not?
Mr Xaso: No I did, Chairperson, I think I need to clarify this. It is my view that that committee had applied itself. It is my view that the Rules Committee applied itself on the matter. And that's really my view.
Adv Ka-Siboto: Very well. Let's deal with Rule 73 of the Rules of the National Assembly. You can accept as a starting point that the Speaker is bound by all the Rules of the National Assembly.
Mr Xaso: Yes, the Speaker, like any other Member, is bound by the Rules of the National Assembly.
Adv Ka-Siboto: Including when she makes ruling, not so?
Mr Xaso: The Speaker follows the Rules of the National Assembly to the best of her ability as far as I am aware.
Adv Ka-Siboto: Yes and she's not allowed to deviate from the Rules, not so?
Mr Xaso: Chairperson, the Speaker follows the Rules to the best of her ability. That, that's really what I can say. Members are expected to comply with the Rules. Speaker, as a Member of the House, and so members of this committee and any other Member.
Adv Ka-Siboto: See this is the thing with the elongated answers that are not directed to a very basic question. I end up not understanding what the answer is, a yes or no could have sufficed here. The Speaker is not allowed to deviate from the Rules?
Mr Xaso: Chairperson, as we have dealt with this before, Mr Ka-Siboto is entitled to ask me questions and he may not tell me how to answer. So I've responded in the manner I deem appropriate.
Adv Ka-Siboto: I can appreciate that, Mr Xaso. I'm just trying to get you to assist me, so not for your benefit, for my benefit. If I can ask kindly and perhaps for the benefit of the other committee members who might not be certain what the answer is. I ask for your indulgence that to the extent you can answer the question with a yes or no. Can I please and I'm asking for your indulgence that you grant me that indulgence just so I got the answer.
Mr Xaso: Chairperson, to the extent that I can, to the extent.
Adv Ka-Siboto: That's fair enough. So I'm going to ask the question again. The Speaker is not allowed to deviate from the Rules; she's bound by them? Present Members are not allowed to deviate from the Rules including the Speaker?
Mr Xaso: Yes.
Adv Ka-Siboto: That's good enough for me. Now let's deal with Rule 73. It says if a Member refuses to leave the chamber when ordered to do so by the presiding officer, in terms of Rule 70 or 71, the presiding officer, either Speaker – and I place emphasis on the word – must instruct the Sergeant-at-Arms to remove the Member from the chamber and the precincts of Parliament forthwith. The proposition is this: the word 'must' is pre-emptive would you accept that?
Adv Golden: Madam Chair, sorry, I object Madam Chair, sorry Chair, I object to the proposition.
Chairperson: Yes Adv Golden.
Adv Golden: Thank you Madam Chair. Madam Chair, I think that I need to raise this because this line of questioning is not appropriate for this hearing. These are legal issues and legal interpretation of the Rules that Mr Ka-Siboto is now engaging the witness. Mr Xaso is here to give evidence as to what transpired in the House on the 9th and the 10th of June 2022 because he was there personally. He was physically present and observed the disorder and chaos in the House. So he was here to take us through, that is the purpose of his evidence. Given also that there is pending litigation in the High Court about the interpretation of the Rules, the interpretation of the process that is followed, there is also a challenge on the constitutionality of the process followed in this hearing and also I believe a constitutional challenge on the Rules, that is best left for the Western Cape High Court to deal with. It is not fair, nor appropriate to expect Mr Xaso now to give legal opinions on the interpretation of issues which is exactly now pending before the High Court and I asked my learned friend to please phrase cross examination questions appropriately.
Chairperson: Thank you Adv Golden. Adv Ka-Siboto, please note the request, please refrain from the legal principles and let's come to the level of this hearing.
Adv Ka-Siboto: Chairperson I was hoping that you are consistent on that. Because when I raised objections to the line of questioning of the Initiator, you're allowed an opportunity to respond before you ruled. I was hopeful that you grant me the same indulgence.
Chairperson: You can still have time. What would your response be?
Adv Ka-Sibito: Thank you Chairperson I object to the objection for this reason. The first one is that Mr Xaso is not a layperson, he is here to advise on the Rules. That is what he does. He advises Parliament on the Rules. The second point is that he himself in examination-in-chief gave reference to rules and what they mean and I did not object to that. He would say the Speaker exercised this rule; this is how the rule applies and that is why the Speaker came to this conclusion. There was no objection in that respect. It therefore would be inconsistent of you, Chairperson, to stop me from that line of questioning. But I will respect your ruling nonetheless with this caveat. To the extent you stop me from asking those questions, then all the evidence that Mr Xaso gave on the Rules must be expunged from the record and as evidence to the charges. Because you can't have it both ways –where he speaks of his own evidence, he can give interpretations of the Rules; when it comes to cross examination I'm stopped from asking those questions. I'm going to therefore ask your rule in that respect, Chairperson
Chairperson: Adv Golden, is this how it has to be? Like the advocate here is indicating that during the evidence leading, the same legal jargon was used for lack of better word and now he's asking the same in line with how you conducted your evidence. I have recognised you I see your hand, Hon Xaba. Let me allow Adv Golden first.
Adv Golden: Thank you Chair. Chair as far as I recall. Mr Ka-Siboto did not at all object to my line of questioning when it came to the Rules of the National Assembly and in relation to the charges. So those are the charges that we are dealing with and those are the Rules. Also you will recall that the charges were explained in relation to the Member's conduct. What we see now is that Mr Ka-Siboto is now wanting to choose legal argument questions. To put that in cross examination when it is more appropriate for legal argument and in written submissions at the conclusion of the factual evidence. So I stand by my objection and I leave any ruling if appropriate in the committee's hands.
Chairperson: Thank you Adv Golden.
Mr Xaba cautioned the Chair that she must be cognizant that the concluding remarks would be done at the end of this process in her ruling. He was concerned that the legal representative of the affected Members was rather too instructive as Adv Ka-Siboto requested evidence be expunged. The determination of the request to the Committee could take place at a later stage. He reassured Mr Ka-Siboto that the Committee listens to both sides of the story.
Chairperson: Indeed your objections on the Initiator's leading questions, you have objected on numerous occasions to say she is leading the witness. Can I request you that you leave the legal arguments for closing arguments by both teams at the end of this so that we proceed with the cross examination without putting on the legal arguments?
Adv Ka-Siboto: Chairperson, I abide by the ruling. But I just need guidance then as to what I'm permitted to do. You would have heard the Initiator say she asked questions around the Rules and I did not object and that is true because it is permissible. All I'm simply doing, it is the same exercise. For example, I am now dealing with Rule 73 which Mr Xaso gave evidence on. I'm now simply asking him questions about that evidence on Rule 73. I've made no legal submission other than to test what evidence-in-chief the Initiator has told you that she asked him questions on the Rules. I am simply doing the same thing. So at the risk of disregarding ruling, Chair, I'm just seeking guidance on what it is exactly you're asking me to do because all I'm doing is asking questions on the same Rule 73 that I allowed questions on when the Initiator was examining Mr Xaso. So I'm just asking for your guidance Chairperson. I am doing nothing that the Initiator did not do.
Chairperson: What I'm asking, Adv Ka-Siboto, is for you to confirm the instances he responded as a witness on the Rules not making legal arguments. As I'm saying let the legal argument be reserved for both teams at the closing argument that both of you will be afforded the chance to do. There's a way of going around asking on the Rules instead of making it a legal argument. So please let's deal with this in a way that is in accordance with what we're supposed to do here. Adv Golden is saying what you doing as you ask questions on the Rules, is you're making legal arguments. So I'm saying refrain from doing that, so that we are able to proceed with the level of the hearing, not legal arguments, that is not for this platform.
Mr Tambo rose on a point of order and highlighted that there is no legal argument which has been raised here. Adv Ka-Siboto was doing exactly what the Initiator had done. He accused the Chairperson of discriminating the legal counsel of affected Members and Mr Xaso must be asked to clarify the Rules. He called the entire process a farce.
Adv Golden pointed out to the Chairperson that the nature of objection is a simple procedure. Members of EFF were represented in this hearing by a legal counsel. They are hence not allowed to interject in any of the proceeding. If they do so, they must do so through their legal team which is the proper way of this hearing. She asked the Chairperson to make that ruling or otherwise mute those relevant Members.
The Chairperson asked affected Members to raise their issues through the legal counsel to avoid such situation.
Adv Ka-Siboto indicated that he had raised the same issue earlier on as well. Before the committee got to the stage, Mr Mlenzana and Mr Xaba raised issue about his conduct and line of questioning and the Chairperson did not make a ruling. He pointed out the inconsistency in the Chair’s ruling.
The Chairperson and Mr Xaba urged Adv Ka-Siboto to refrain from using party affiliation such as ANC, EFF to refer to Members because this is a multi-party committee and that Members are here as a Member of the Committee and not as representatives of their political parties.
Adv Ka-Siboto: Thank you Chairperson for your ruling. Mr Xaso, before the engagements, I'd taken you to Rule 73(1), you still there?
Mr Xaso: Chairperson, yes, I am still here.
Adv Ka-Siboto: I’ll read that rule again. It provides that if a Member refuses to leave the chamber when ordered to do so by the presiding officer, in terms of Rule 70 or 71 the presiding officer must instruct the Sergeant-at-Arms to remove the Member from the chamber and the precinct of Parliament. And I place the emphasis on the word 'must'. Now the question I want to ask you is this, when the Speaker wants to remove someone from the chamber, she must, as a starting point, call the Sergeant-at-Arms, not so?
Mr Xaso: When a Member refuses to leave the chamber, yes.
Adv Ka-Siboto: Yes, yes and that would precede her right to call the Parliament Protection Services not so?
Mr Xaso: It precedes that right at that starting point, but it's important, Chair, that you also… OK, let me hear you out.
Adv Ka-Siboto: And before she can call the Sergeant-at-Arms, she must first ask the Member to desist from the impugned conduct, not so?
Mr Xaso: It's not always the case. Let's read Rule 70 so that you can understand my point.
Adv Ka-Siboto: Sure
Mr Xaso: Rule 70 says if the presiding officer is of the opinion that a Member is deliberately contravening a provision of these rules, or that a Member is disregarding the authority of the Chair or that the Member’s conduct is grossly disorder, he or she may order the Member to leave the chamber immediately. So it is not asking the Member to desist from what the Member is doing.
Adv Ka-Siboto: But you can accept that her practice was to ask Members to desist from doing what she alleges to be in contravention of the Rules not so?
Mr Xaso: Her option was to ask Members to desist but there is no requirement for her to do that in terms of the Rules.
Adv Ka-Siboto: And if she fails to call the Sergeant-at-Arms and immediately instructs the Parliament Protection Services to remove a Member, then she's not acting in accordance with Rule 73?
Mr Xaso: No. So, Chairperson, that's the point I wanted to get to earlier and I will get to it now. If you read the Rule 73(6). Any Member or Members who contravene subrule 5, may on the instruction of the presiding officer, also be removed from the chamber and the precinct of Parliament by subrule five. No Member may in any manner whatsoever physically intervene in prevent, obstruct or hinder the removal of the Members from the chamber in terms of those rules. Any Member and then five follows. Now there is no suggestion in these two rules that Sergeant-at-Arms must be called first. That is why when Members are physically intervening in the removal of Members, the Speaker will call the Protection Services so that is my, my response to your question.
Adv Ka-Siboto: I apologise that answer was long and I'm not too sure what the answer is. So having said what you said, if you can then sum up that answer perhaps in a sentence, I want to understand you properly. I am putting it to you that the Speaker may not call Parliament Protection Services prior to invoking the services of the Sergeant-at-Arms when removing a Member from the chamber?
Mr Xaso: My response is that it is incorrect. There would be instances where the Speaker asked the Members to get removed immediately from the chamber without having to call the Sergeant-at-Arms.
Adv Ka-Siboto: Removed by whom?
Mr Xaso: By the Protection Services.
Adv Ka-Siboto: Please refer me to that provision.
Mr Xaso: I mean the Rules are clear that you have the Sergeant-at-Arms, your Protection Services and the Members may be removed by the Protection Services at any point. So there's no requirement that in every instance the Speaker has to call the Protection Services.
Adv Ka-Siboto: I'm really, really struggling to follow. I've read Rule 73(1). It specifically says when the Speaker wants to remove a Member who refuses to leave the House, she must call the Sergeant-at-Arms. In other words, not Sergeant-at-Arms or the Protection Services, it says she must call the Sergeant-at-Arms. You are saying I'm wrong. I'm not asking you what rule empowers her as a starting point to call the Parliament Protection Services.
Mr Xaso: Chairperson, I think, I think it's important to understand this sequence of things here. Rule 73 must be read in line with the Rule 70 here. A Member is being asked to leave the chamber, yes, remember being asked to leave the chamber. The Member refuses to leave the chamber then the rule says the Sergeant-at-Arms must be instructed to remove the Member. Now in Rule 70, a Member has, I mean 73(5) and 73(6), a Member has already been asked to leave the chamber and this other Member in defiance of what the Speaker has said then physically intervenes. Now the rule says those Members must also be removed from the chamber and the precinct forthwith. And the application of this rule has always been that at that point there's no calling of the Sergeant-at-Arms; those Members are removed from the chamber by the Protection Services. That is my response. I hope Mr Ka-Siboto now understands my point. He may disagree with it but that is that is where things are.
Adv Ka-Siboto: I do not understand your point Mr Xaso. So I'll just put the proposition to you and then we can engage on that basis. The Speaker must call the Sergeant-at-Arms when a Member refuses to leave. And if the Member refuses, only then can the Speaker ask for the Parliament Protection Services. Now assume I'm correct, as a matter of hypothetical, in other words, let's work with an understanding that I'm correct, it would therefore, if I'm correct, be improper of a Member to be removed by the PPS as a starting point, not so?
Mr Xaso: No. Mr Ka-Siboto and Hon Members, I think I've made this point that there are two scenarios here. There's a scenario of a Member who has done something which the Speaker viewed as unparliamentary, a Member refuses to withdraw, the Member was asked to leave. The sequence is that if the Member refuses then you must call the Sergeant-at-Arms. And then the Member is then assisted. If the Member still refuses, then you call in the Protection Services. Now the other scenario is these other Members, in the course of the ruling of the Speaker being applied, they intervened. Now there's no provision here that then call the Sergeant-at-Arms or what the application of this rule is. And this is what we're talking about the application of this rule is. The Speaker would then get those Members removed immediately from the chamber. That has always been the application of this rule.
Adv Ka-Siboto: This is the difficulty, Mr Xaso. You are now giving me your interpretation of the Rules and how you see them. And I'm not taking anything away from that. I hear you. I am now saying, assuming the position that you are wrong and I am right, because I will submit to this committee later on why your interpretation is wrong and mine is correct. If you then answer my question on the basis of I am correct then it assists the committee to make the determination. So forget what you interpretation is. I'm saying now, assume I am correct that you cannot kick a Member out of the House as a starting point using Parliament Protection Services. Assume that I am to be correct and answer on the basis of me being correct, not your interpretation of the rule. If I am correct then the Speaker would have been acting unlawfully by instructing Parliament Protection Services without warning the Member, without invoking the services of Sergeant-at-Arms, not so?
Adv Golden: Sorry Chair. May I again raise, sorry Chair, and I must just say that I do not want to unnecessarily restrict, oppose the counsel’s cross examination. However, I think that he has now gone beyond that which is fair and that which is permissible. He has now repeatedly put the same issue to Mr Xaso. Mr Xaso has answered on no less than two, maybe even three, occasions. His answer hasn't changed. It doesn't matter how many times Mr Ka-Siboto asks the same question, he is not getting Mr Xaso into giving him an answer that he wants, which he is not getting. I ask that you instruct Mr Ka-Siboto to move on and to keep whatever interpretation of legal arguments he has to make for the appropriate time when we deal with legal argument, thank you.
Chairperson: Thank you, Adv Golden. Adv Ka-Siboto?
Adv Ka-Siboto: Thank you Chairperson. Unfortunately, Mr Xaso did not answer the question I was asking. My understanding why he's not answering is not because he's evading my question but perhaps he doesn't understand my question. So the only reason I repeated the question was so that he understands what I'm asking of him. If he refuses to answer the question, well then so be it, I’ll accept that. And perhaps I could assist the Chair, make your task easier and accept that I will move on and not ask that question again. But it just took place on the record, assuming I am right about my interpretation, assuming that the Speaker cannot use the PPS as a starting point, then it must be that when she does, that she is acting unlawfully, that's the point I was getting at. I will then ask the second question. And the second question is this, Mr Xaso, with your leave of course, Chair, I'm not disregarding the fact that you're supposed to make a ruling. I just feel I accept and I’ll move on and if you happy with that Chair, then I’ll just proceed.
Chairperson: Yes, move on. Please ask your questions not to repeat because we are all here. He's been responding. Just try to move on. If the response is not what you expect or satisfactory, just note that and move on to the next question, it will help us all. We can proceed.
Adv Ka-Siboto: Thank you Chairperson. Mr Xaso let's go to Rule 73(11) which says in the event of violence so there's a qualification as to when this can happen. In the event of violence ensuing in the chamber as a result of Members resisting the removal, the presiding officer may suspend proceedings and members of the security services may be called upon by the Speaker during such period of suspended proceedings to assist the removal of Members from the chamber and the precincts of Parliament forthwith. In terms of Section 4(1) of the Powers and Privileges Act that provided that the security services may intervene directly anywhere in the precincts and the chamber in terms of s 4(2) of the Act when there's immediate danger to the life, for sake of any person or damage to any property. The point I want to make is, it is there clear when the Parliamentary Services may be invoked. You suggested that there are other instances where their powers may be invoked. I'm asking you to direct me in the same way as I have directed you to your version of things.
Mr Xaso: Chairperson, I think it's necessary at this point and I hope I understood Mr Ka-Siboto just explain what this rule is about and to…
Adv Ka-Siboto: Sorry to do this to you. And this is how then I get into trouble because you answer questions I am not asking you and I'm forced to ask the question again. I'm not asking for your interpretation of Sub 11. I am asking you to direct me to the rules where it says Parliamentary Services may be invoked on the version that you have given, not interpret what I've just read to you. That is my question to you.
Mr Xaso: Maybe I should first seek clarification, Chair, can you just clarify your question again? Mr Ka-Siboto, what you raised when you read rule 11?
Mr Xaso, I ask you questions, not the other way around.
Adv Golden: I’m sorry, Madam Chair. That is grossly unfair to the witness. If a witness seeks to clarify a question, he must be permitted to do that because if he doesn't do that he may be misled.
Chairperson: Adv Ka-Siboto?
Adv Ka-Siboto: There’s no such a thing, Chairperson. If I'm asking examination, cross examination questions. I want to discredit the version of the witness how then must I benefit from what I'm trying to achieve, I mean it's just with respect to, Chairperson, I object to the objection. I am entitled to ask a question without telling the witness what the point of my question is because what I'm trying to do is to discredit this version. I can't then have a witness dodge my question by understanding why I asked the question.
Mr Xaso: Chairperson, the reason I wanted clarity because I did not want to misunderstood him. Because I want to indicate and this is where hopefully he's going to clarify this because I'm not certain whether by reading security services, he is talking about Parliament Protection Services that's the clarity I wanted.
Adv Ka-Siboto: I'm happy to move on, Mr Xaso. I've made my point and just for future purposes you cannot ask me why I'm asking you a question. You can ask me what does my question mean or ask me to clarify the question. What you're not entitled to do is ask me why I'm asking. And the point is simply this, Mr Xaso, Mr Tambo MP was one of the charged Members that stands up when the Parliamentary protection… before we get there, the Speaker invokes the services of the Sergeant-at-Arms, asking him to direct and ask Ms Chirwa MP to leave the chamber. And if you object to that, I am happy to watch the video. The Sergeant-at-Arms proceeds towards Ms Chirwa presumably to effect the instruction of the Speaker. Did you testify about it?
Mr Xaso: And even that I forgot things, I am asking the tape to be played.
Adv Ka-Siboto: I'm happy. But then this happens. As the Sergeant-at-Arms approaches Chirwa MP, Mr Tambo stands up and the question is put to you. What is Mr Tambo doing? Your answer is Tambo is talking to the Sergeant-at-Arms, do you remember that?
Mr Xaso: Yes I do.
Adv Ka-Siboto: Given your answer that the Sergeant-at-Arms is talking to Mr Tambo, you then changed your version. Do you recall when you changed your version?
Mr Xaso: I don't, I don't recall changing version. Can you remind me about the change of version?
Adv Ka-Siboto: There was a question because the answer is given is not the answer you're supposed to give. And the question is led by, 'No but Mr Tambo is standing in between Ms Chirwa and Sergeant-at-Arms, what is he doing'? Do you remember that question from the Initiator?
Mr Xaso: I do and there's no change of version there.
Adv Ka-Siboto: And then what happened is you gave an answer, you said, 'Oh yes, he is blocking the Sergeant-at-Arms', do you remember that?
Mr Xaso: Chair, what I would have said – maybe to replay that – I would have said Mr Tambo was talking and the Sergeant-at-Arms was sent to remove… to assist the Member to leave the chamber and he was blocking the Member from doing that, yes, that's definitely from doing that.
Adv Ka-Siboto: You've basically said what I've just said but what you're not doing is accepting you've accepted earlier you can change your version again. Now I'm happy for you to do that, but all I'm simply saying to you is you accepted that your first answer was Mr Tambo is talking to the Sergeant-at-Arms and that's where you stopped. Initiator came in and gave you help… perception of what is happening which is known, 'But Mr Tambo is standing between Ms Chirwa and Sergeant-at-Arms'. You then gave a version which now says he is blocking the Sergeant-at-Arms. And I'm saying to you, to the evidence-in-chief and I'm going to make submissions in that respect. I then again say your version of Mr Tambo blocking Sergeant-at-Arms was prompted by the follow up question which then led to you changing your version from 'he is talking to the Sergeant-at-Arms' to 'he is blocking the Sergeant-at-Arms'. Do you have a comment to that?
Mr Xaso: Yes, I do have a comment. I don't understand that 'blocking' changes the effect of what Mr Tambo was doing. He was blocking the Sergeant-at-Arms and that's what it is. It was just continuation of the response. If I happen to stop before I got to that point and that is understood as a change of version, then that is for Mr Ka-Siboto, not for me.
Adv Ka-Siboto: Do you know what Mr Tambo said to her?
Mr Xaso: I don't, don't know.
Adv Ka-Siboto: Did you ask him what Mr Tambo said to him?
Mr Xaso: No, I did not ask him and there was no need for me to ask him.
Adv Ka-Siboto: Surely if you're going to charge a Member for disorderly conduct, you care about the facts that surround that conduct, not so?
Mr Xaso: Chairperson, the answer is simple. If Mr Tambo had an issue to raise with the ruling of the Speaker, he was to raise a point of order and raise a point of order. It was not for Mr Tambo to engage the Sergeant-at-Arms who had been directed in terms of the Rules to go and remove a Member that's obstruction of authority.
Adv Ka-Siboto: How do you know Mr Tambo wanted to raise a point of order or challenge the ruling?
Mr Xaso: Why raise it with Sergeant-at-Arms? Through you, Chairperson, the Sergeant-at-Arms was not the presiding officer on the day. The Speaker was the presiding officer.
Adv Ka-Siboto: Who said that is what he said to the Sergeant-at-Arms?
Mr Xaso: No, but that's what you're asking. You're asking me whether, what if he wanted to raise a point of order. I'm saying that even if he did want to do that, Sergeant-at-Arms was not the right people person to do that too. And Hon Tambo as a Member knows that Speaker is the Chair.
Adv Ka-Siboto: I said no such thing, Mr Xaso. I said to you do you know what Mr Tambo said to the Sergeant-at-Arms? You said no.
Mr Xaso: Yes.
Adv Ka-Siboto: I then said to you, you care about the facts that surround kicking out of Members. I said no such a thing about the point of order. You came up with the point of order. Now I'm asking you how do you know that engagement was about the point of order?
Mr Xaso: I don't know. I mean, I indicated earlier on that I don't know what the issue was.
Adv Ka-Siboto: Yes, so I did not speak about the point of order, you did because you're assuming where we are going, isn't it?
Mr Xaso: No, look I'm not assuming. I'll be happy to know where you're going but I'll wait for you to ask the questions.
Adv Ka-Siboto: Very well. And for someone who's responsible for the procedures of Parliament and someone who advised all these structures about these proceedings that we are sitting in now, surely you must care about facts that surround impugned conduct, not so?
Mr Xaso: Chairperson, I'm trying to be as helpful to this process as possible. I care about what goes on but it was not my duty to ask the Sergeant-at-Arms what Mr Tambo was saying as it would not have been my duty to ask even the Protection Services when the Members were exchanging words with them, when talking to them, what they were saying to them, so, yes.
Adv Ka-Siboto: Do you know if anyone asked Mr Tambo or the Sergeant-at-Arms as to what the engagement was about?
Mr Xaso: No, I don't. I mean, if there's an interest to us, as a Sergeant-at-Arms, he's a staff member, he can be called and be asked what he said.
Adv Ka-Siboto: And to the best of your knowledge, no one has ever asked the Sergeant-at-Arms and Mr Tambo what the entire action was about?
Mr Xaso: No, I don't…
Adv Ka-Siboto: Yet all these structures that we involved in laying these charges make it definitive or at least at a prima facie conclusion that Mr Tambo stood simply to block the Sergeant-at-Arms from performing his tasks, not so?
Mr Xaso: That is the charge, Chair. And of course and it would be for Mr Tambo to state his version in this instance.
Adv Ka-Siboto: In hindsight with your involvement, a physical removal committee, the Rules Committee, the parliamentary committee that is seized with this matter, in hindsight, do you think it will be proper to have the version of the Sergeant-at-Arms and that of Mr Tambo before determination is made that he's simply obstructing?
Mr Xaso: Chairperson, I believe that the committees that have dealt with these matters – sorry, I didn't – I believe that the structures that dealt with these matters, they did a proper job. I really did not see a basis for Mr Malema or Madlingozi to be asked what conversations he had with Members. In the event that Mr Madlingozi thought it was necessary to report to the Speaker like when Sergeant-at-Arms was sent to remove Ms Marais when she complained about the handling of Members by Protection Services, Mr Malema did report that to the Speaker. The Speaker made certain remarks about it. So if he thought it was necessary to report the matter, he would have reported it.
Adv Ka-Siboto: I'm asking you the question whether in hindsight there should have been some sort of discussion. I mentioned before these charges are brought against my Members, there's some sort of investigation fact-finding reviewing of the Hansard; reviewing of the video material. It just makes sense to me, at least I'll suggest to any rational person, that if you've got two people engaging – and you called it 'they were talking' or rather 'Mr Tambo was talking to the Sergeant-at-Arms' and then you were prompted to give a different answer by a follow question – surely in the course of that investigation, it is only proper, particularly if you answer is 'he was talking to', to ask as to what it is that we're discussing, before you make a determination whether Mr Tambo was blocking or not.
Mr Xaso: Chairperson, I mean I don't agree with that version. I believe that the way the matter was handled was proper. I believe that this forum where we are now, Hon Tambo if he thinks what he discussed with Sergeant-at-Arms is worth presenting to this committee, I'm sure he will do that when he gets to that point. So I believe that the structures that have dealt with this matter dealt with it properly.
Adv Ka-Siboto: I'm asking this line of question because then eventually what you see, before the Sergeant-at-Arms even reports to the Speaker, the Speaker directs that Mr Tambo be evicted by the Parliament Protection Services. Is it of concern to you as someone who's the custodian of the procedure in terms of the Rules?
Mr Xaso: No, it is not of concern because no Member is allowed to hinder the execution of the actions of the Sergeant-at-Arms when the Sergeant-at-Arms is or the Protection Services are sent to assist a Member to be removed. I want to put the point I put in here. The House is run by the chair so if a Member has any concern, the Member previously should have raised it with the Speaker. That demonstrates the point of saying that to the Speaker. So that's my response.
Adv Ka-Siboto: Just to round off this line of questioning. You can accept first that the Speaker at no point ask Mr Tambo to desist from doing what he's doing, correct?
Mr Xaso: I don't recall that. And then she was not required because Members were expected to know the Rules or what the Rules say.
Adv Ka-Siboto: Well if she's not required to tell Members to stop what they're doing, then why does she do it?
Mr Xaso: No, I'm saying Chair that there is no requirement on her to say 'Hon Member, make way' because remember he was supposed to know that he's supposed to make way. So if she had chosen to do that, she would have chosen to do that. But there's no obligation on her to say that.
Adv Ka-Siboto: You can also accept that at no point did the Speaker ask Mr Tambo to leave the House, not so?
Mr Xaso: Because the Rules say the Member must be removed from the chamber.
Adv Ka-Siboto: You can also accept at no point did the Speaker ask the Sergeant-at-Arms to escort Mr Tambo out of the building, not so?
Mr Xaso: Yes, there's no such requirement.
Adv Ka-Siboto: And the only thing that happened after Mr Tambo stood and spoke to the Sergeant-at-Arms is that the same Protection Services that were brought in ushered out Mr Tambo as a starting point, can you accept that?
Mr Xaso: That is correct, and that's what always happens when Members block the removal of Members, of other Members.
Adv Ka-Siboto: Very well before I move to the next subject matter, let us round off Ms Mkhonto’s evidence and taking it back to where we started. We have dealt with the question of charge three. So charge three dealt with… The charge says, and it's on page 69: 'It is alleged that you are guilty of conduct constituting contempt of Parliament in terms of section 13(a), 13(c) and 13(d) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, that is a Member of Parliament during the session of the National Assembly on 10 June 2022 when the President responded to his budget vote speech, that you contravened section 7(a) of the Act and that you willfully refused or failed to obey Rule 73(1) when you refused to leave the chamber when ordered to do so by the presiding officer in terms of Rule 70 and/or 71. You continued to refuse to leave the chamber and the Sergeant-at-Arms requested you to leave. The presiding officer then instructed the Parliament Protection Services to remove you from the chamber.' And then it concludes by saying 'Your conduct improperly interfered with the exercise or performance of the House of its authority and functions.' I’ve suggested to you that she is not guilty of this charge because it was physically impossible to have committed this charge by virtue of being absent. Let's now deal with charge one.
Adv Golden: Sorry, Madam Chair, if I could just and also for purposes of the witness, is the version of misconduct that she was not present in the National Assembly at all that day?
Adv Ka-Siboto: Chairperson, the version of Ms Mkhonto is that she cannot have been guilty of charge three and that it was physically impossible for her to be present or rather to commit the charge by virtue of her not being physically present in the chamber.
Adv Golden: Sorry, Chair, I need clarity on this because this is the version of Ms Mkhonto. The witness also needs the proper version. Ms Mkhonto, is it her version that she was not at all present in the National Assembly on the 10th of June 2022? It's a yes or no answer and I ask my learned friend to please give us, the witness and the committee, the proper version.
Adv Ka-Siboto: Chairperson, my client carries no burden. The burden when a charge is brought is for the Initiator to prove. In fact, she was at pains earlier on to make the point that she stands and falls by what she leads before this House. My clients’ function is to merely discredit and not to assist the Initiator. The difficulty with answering the question of the Initiator is that then it exposes and gives a clue to Mr Xaso about what I'm going to ask him now. The prejudices, if I answer that question, then I can't make the point that I want to make now. And for those two reasons, Chairperson I refuse to answer the question.
Chairperson: Thank you, Adv Ka-Siboto. Can we then move on? You are refusing to respond to that question, we note that as it exposes your next questioning.
Adv Ka-Siboto: Thank you Chairperson.
Adv Golden: Sorry Madam Chair if I may respond?
Chairperson: You still want to come in?
Adv Golden: Thank you Madam Chair. Madam Chair, I'm quite flabbergasted by my learned friend’s answer. This is a very basic principle of a hearing of this nature and in order to be fair to the witness, but also so that we can prepare for cross examination of Ms Mkhonto, we need to know what her version is, what her full version is. It's got nothing to do with the burden or with my onus that I must discharge. This is a factual issue. It is either a fact that Ms Mkhonto was in the National Assembly and attended the proceedings on the 10th of June or she was not at all there; she did not attend. So this is a factual issue and has got nothing to do with the onus. And this has also got nothing to do with respect to Mr Ka-Siboto about his style of cross examination and questions that he may want to ask as a follow up. As a matter of fairness to the witness, and to the entire process, because the fairness issue is not just a fairness issue to the Member that is charged, Madam Chair. It's also a fairness issue to the Initiator and to the case that I must present. So I ask again that the full version, the factual version of Ms Mkhonto is put to Mr Xaso for his comment, and also that we can prepare properly. We have a right to that information, to what her version is, thank you.
Adv Ka-Siboto: Chairperson and before your ruling, if I can respond to this new submission if I could indulge and respond to that one specifically as well?
Chairperson: OK please respond.
Adv Ka-Siboto: Thank you Chairperson. I want to make four brief points. The first is this. It is rather surprising that charges are brought against the Member, yet we are asked to tell them what happened was, where it's their version that she was in the chamber, that's their version. How are we then asked to correct their version and assist them in ascertaining the truth. My client has no onus of burden to assist the Initiator. The second point is this – where is the register if this process was taken seriously in terms of investigation? And I say that with respect. Perhaps I'm better advised to use a different word. The point I simply seek to make is if you want to ascertain the attendance of Members at the chamber or not, there's a register for that. Why can't the Initiator have recourse to that register? The third point I want to make is this: the claim that we must give a version is so that we can help the Initiator prepare for cross examination. Well, with respect I was not told what Mr Xaso's version will be. I heard his version for the same time in this House and I prepared my cross examination as he was testifying. Why should the Initiator enjoy special benefits? I'm saying to this House we can call Ms Mkhonto and then at that point she can prepare for a cross examination. She may decide not to give a version at all. The rules say she's entitled not to give her version at all. She's got that right, and if she then chooses to exercise that right not to testify then how we're compelled to give her version? And I'm saying in light of that, Chairperson, I refuse to answer the question.
Chairperson: Thank you Advocate, that is noted. I hope Adv Golden has also noted that refusal. May we proceed?
Adv Ka-Siboto: Thank you Chairperson. I was taking you through charge one of Ms Mkhonto which you spoke about earlier. It says, 'It is alleged that you are guilty of conduct constituting contempt of Parliament in terms of section 13(c) and/or 13(d) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, that is a Member of Parliament during the sitting of the National Assembly convened on 10 June 2022 when the President Mr Cyril Ramaphosa responded to his budget speech, you contravened section 7(a) of the Act when during the proceedings you willfully refused and/ or failed to obey Rule 69(c) when you repeatedly undermined the authority of the presiding officer and/or repeatedly refused to obey the rulings of the presiding officer and/or disrespected and interrupted the presiding officer while the latter addressed the House. Your conduct disrupted the proceedings of the National Assembly and improperly interfered with the performance by the House of its authority and functions'. How did she do that, Mr Xaso?
Mr Xaso: Chairperson and the committee, the point was made earlier by Mr Ka-Siboto that the Member was not in the House. I did say to this committee that it's possible I've mistaken the identity on my part. And it is a genuine mistaken identity on my part. Therefore if the Member was – and I've accepted that version – if the Member was not in the House then I am not able to say how she did this or did not do this because evidently the Member would not have done it in the House. I've explained the issue of the identity of the Member the best I could, Chairperson.
Adv Ka-Siboto: Will the same apply to charge two?
Mr Xaso: Certainly, Chairperson, that would apply to the charge two.
Adv Ka-Siboto: Would the same apply to charge four?
Mr Xaso: Chairperson, it doesn't apply as far as I'm concerned on my part.
Adv Ka-Siboto: We have already dealt with charge three. So that being the case, we now accept she can't have been guilty of any of these charges?
Mr Xaso: Chairperson, that would be for the committee to deal with. I'm just giving my version as a witness appearing before this committee.
Adv Ka-Siboto: I think that's fair. Let us deal with, if you can just give me a second, you testified extensively… you've testified extensively about Members of Parliament that called the President a criminal and a money launderer, do you remember that?
Mr Xaso: I remember answering questions around that, yes.
Adv Ka-Siboto: And your answer with reference to the Rules said that was a breach of the rule and that it cast aspersions on the President, do you remember that?
Mr Xaso: Yes, I do remember that, and I said more than that here on the issue.
Adv Ka-Siboto: And on the basis of the Speaker is entitled to ask for the removal of those Members, do you remember that?
Mr Xaso: The Speaker is entitled to ask for the withdrawal of those who disregard her authority, to ask Members to leave.
Adv Ka-Siboto: Yes and you would imagine that if another Member equally cast an aspersion on another Member, the same treatment must be meted out by the Speaker towards the same or towards that particular Member who is conducting themselves likewise, would you accept that?
Mr Xaso: Maybe if your point of order was raised, or there had been an initial ruling by the Speaker on the same issue, the Speaker would do that, yes.
Adv Ka-Siboto: I presume yet again, in fact you've given testimony that you would have gone through the Hansard, you'd have gone through the video on what you are dealing with, can you just confirm that again?
Mr Xaso: Yes, I've gone through the video and Hansard and specifically in respect of the Members that are charged.
Adv Ka-Siboto: Correct, let's look at page 263, my apologies, 267.
Mr Xaso: Yes Sir, yes I'm there, Chairperson.
Adv Ka-Siboto: If you have regards to the caption of what Ms MP Makhubela had said. She says, 'Floyd, your name is also mentioned in the matter of Grand Azania, why are you speaking here in Parliament?' And this was the comment made after the deputy president of the EFF, Shivambu MP, had said the incumbent President has no standing in that House because he's a criminal and money launderer?
Mr Xaso: Yes.
Adv Ka-Siboto: As the custodian of the House, and bearing in mind the attitude of the Speaker to people casting aspersions, what should the Speaker have done about the conduct of this Member?
Mr Xaso: Well, if a point of order was raised, or if the Speaker had heard the Member, and she may have said that she would look at Hansard and rule on the matter. I don't know what she would have said or what she would have done.
Adv Ka-Siboto: I assume you would have read this page in preparation for this, wouldn't you have?
Mr Xaso: Yes, I read the page.
Adv Ka-Siboto: Did you say anything about this to anyone?
Mr Xaso: No, I did not, I did not need to say anything about it.
Adv Ka-Siboto: You can accept that this Member of Parliament cast aspersion on Shivambu MP and there was no consequence for that conduct, not so?
Mr Xaso: And there was no point of order raised either.
Adv Ka-Siboto: Yes, if you then go to page 284, Chairperson. If you go to the middle of that page, you see there Ms CM Phiri. She says 'Vembe Building Society VBS Shivambu heist', do you see that?
Mr Xaso: Yes I see that.
Adv Ka-Siboto: And what she's suggesting, that Shivambu MP is part of what the VBS report… She's implying that he is part of what is contained in that report and he's been implicated as being guilty in what she calls the 'VBS Shivambu heist', can you accept that?
Mr Xaso: That may have been, just give me the page number please.
Adv Ka-Siboto: 284, you're under, Mr Xaso.
Mr Xaso: That may have been the intention of the Member, yes.
Adv Ka-Siboto: Do you know if Ms Phiri was charged for saying this?
Mr Xaso: No, no and I don't know why she would have been charged for saying it. But what you do… what could have happened is to raise a point of order; then she could have been asked to withdraw. But charging is an extreme step.
Adv Ka-Siboto: Do you know if the Speaker reprimanded her for this conduct?
Mr Xaso: No, there was no reprimand, there was no point of order, and I don't even know if the Speaker heard him say this.
Adv Ka-Siboto: So you've got a shield to raise disparaging remarks if there's no point of order raised?
Mr Xaso: Chairperson, I think I do need to explain this in answer to Mr Ka-Siboto. It is not a shield, it is an accepted parliamentary practice that rulings can be given either in reaction to a point of order or when the Speaker believes that the matter is outrageous and has to be ruled on. So there's really… there's really no shield. Yes.
Adv Ka-Siboto: Can I ask you this, did you read this page in preparation?
Mr Xaso: Chairperson, I read the Hansard.
Adv Ka-Siboto: And I'll assume that all the members of all the Subcommittees would have read their Hansard, they would have watched the videos. I'm assuming that, in their favour, including the members of this committee, do you know if any of them raised an issue with this?
Mr Xaso: No I don't, I don't know Chairperson. And of course, I think I should say this – that parliamentary practice indicates that points of order must be raised in the House for matters to be dealt with.
Adv Ka-Siboto: This is the difficulty. So if the Speaker knows that a person is conducting a breach of the Rules – until someone raises the point of order – such a person won't be sanctioned.
Mr Xaso: Chair, I've said it's not always the case. But Members are encouraged to raise points of order when they believe that something is out of order.
Adv Ka-Siboto: Should the Speaker have sanctioned these two Members for these comments?
Mr Xaso: If the matter was raised, the Speaker would have considered it and the Speaker would have made a decision. I wouldn't say what decision should have been made.
Adv Ka-Siboto: What would your advice have been to the Speaker?
Mr Xaso: Because if it's a matter, I would have said to the Speaker that Members must raise substantive motions if they want to raise these issues in the House.
Adv Ka-Siboto: Maybe let me ask the question more directly. If the Speaker asked you or any of the committees you advise asked you, is this conduct by these two Members unparliamentary and that they are sanctionable under the Rules, what would your answer have been?
Mr Xaso: I would have said they are possibly sanctionable. Of course the Speaker will take the final decision on the matter.
Adv Ka-Siboto: And we now know they've never been sanctioned.
Mr Xaso: Because the matter was not raised, and the Speaker might not have heard these Members when they raised these issues.
Adv Ka-Siboto: Is there a provision for Members to be punished, call it in hindsight or outside of the parliamentary process?
Mr Xaso: Chairperson, I request Mr Ka-Siboto, with your permission, to repeat the question.
Adv Ka-Siboto: Is there a procedure for Members to be punished for unparliamentary conduct outside of the sitting of Parliament?
Mr Xaso: All right Mr Ka-Siboto, will ask the question again if I did not understand him well. Um, Parliament has processes in place and it's going to be a prolonged answer because I'm trying to get to what he's saying. I don't want to ask him to repeat repeatedly. And so first I don't understand him when he talks about outside of the parliamentary sitting. I think that's what he said. What I can say is that matters coming out of the House, if there is a basis to refer them to structures such as the Ethics Committee, or the Powers and Privileges Committee, that is done like what we're dealing with today. And that's really my response and I hope I got this question correct.
Adv Ka-Siboto: Can you accept that a remark that someone is guilty of being part of a syndicate of what is referred to as VBS heist is analogous or comparable to calling someone a money launderer. Can you accept that?
Mr Xaso: No I can't accept that because I don't know if it is the same. It would be a reflection on the Member that one I can say, but the analogy that you're giving me, I'm unable to accept it because I really have not applied myself to it.
Adv Ka-Siboto: Just as a matter of law, Mr Xaso, you're saying to me you've got conceptual difficulties accepting that when you call someone a money launderer, it is an equivalent or just as negative of casting of character as calling someone part of a syndicate. You're saying, just as a matter of criminal law, you've got conceptual difficulties accepting that?
Mr Xaso: I mean you've changed the question now. The way I understood you to say was that whether calling a person a heist, money heist, VBS heist and calling a person a money launderer, those are the same. That's the point I was saying. To call the person a VBS heist is negative. It is something that will be reflected on the Member in the same way that you call a person a money launderer, that I accept.
Adv Ka-Siboto: OK and you have testified before that the Speaker has got a duty to apply the rule across the board, not so?
Mr Xaso: Yes.
Adv Ka-Siboto: In terms of the Rules and you can accept as a matter of principle, that conduct that is the same / comparable, must meet the same consequence as a matter of principle, not so?
Mr Xaso: If the Speaker has heard a word of such conduct, a Member says that, or the matter is brought to the attention of the Speaker, the Speaker will consider it and deal with it appropriately.
Adv Ka-Siboto: Yes, I'm happy with that answer. Let me ask you this now. There are a number of Members that you testified about were sanctioned for calling the President the criminal and the money launderer, do you remember that?
Mr Xaso: Who were asked to either withdraw those remarks, yes.
Adv Ka-Siboto: And there were sanctions for calling the President… they said 'casting aspersions' on the President?
Mr Xaso: Yes.
Adv Ka-Siboto: Are you aware by any chance of the decision called Malema versus The National Council of Provinces, a decision, a judgment?
Mr Xaso: You may remind me what it is about.
Adv Ka-Siboto: I take it the answer is no.
Mr Xaso: No, just remind me the context. I mean there are many cases I could deal with in Parliament.
Adv Ka-Siboto: What happened in Malema versus The National Council of Provinces, which is the decision of this province is that Malema MP accused the ANC Members as being guilty of massacring… murdering people in Marikana, do you remember those facts?
Mr Xaso: I remember. That case is not against the NCOP, but against the Chairperson of the NCOP. I remember that it was about ANC government not against ANC Members – 'the ANC government massacred the people of Marikana'.
Adv Golden: Sorry, Madam Chair, just wanted to correct that it was against the ANC government, not Members.
The Chairperson interrupted and requested that Members would need a five-minute comfort break after Adv Golden had made her point.
Adv Golden: Just give me a second.
Adv Ka-Siboto: While I give you the second, Malema MP referred to the ANC government as people guilty of murdering people, not so?
Mr Xaso: Yes, I remember that, that is something that was said in a joint sitting of the House and the matter went to court. The issue was about the ANC government having massacred people in Marikana. And the court did not have difficulties with the ANC government being referred to having massacred the people of Marikana. But the committee must be reminded that is about the ANC government, thank you.
Adv Ka-Siboto: Chair, the Initiator interjected, wanted to make a point. That opportunity was granted. She asked for a second if I can then just give her that second now.
Adv Golden: I wanted to listen to what he said and if you could just give me the one second now without continuing, would that be OK, Madam Chair?
Adv Ka-Siboto: Thank you Chairperson. We were discussing the decision of this province which we've established had found that it is parliamentary for Malema MP to say the ANC government massacred people in Marikana, do you recall that?
Mr Xaso: Yes, and that decision went to the Supreme Court of Appeal, do you recall that?
Adv Ka-Siboto: And the Supreme Court of Appeal upheld that decision, do you recall that?
Mr Xaso: Yes.
Adv Ka-Siboto: The Supreme Court of Appeal upheld that decision. It said that Members of Parliament enjoy the privilege. They equally have freedom to express themselves including by disparaging and casting aspersions on Members of Parliament. Do you recall them all?
Adv Golden: Madam Chair, may I just interject?
Chairperson: Yes Adv Golden.
Adv Golden: Thank you Madam Chair. Madam Chair, Adv Ka-Siboto is now asking Mr Xaso about a High Court and Supreme Court of Appeal judgment which he may or may not have read, or which he may or may not recall all the facts of the court. I don't think that this line of questioning is 1) relevant in the first place and 2) it's not fair because Mr Xaso was not given an opportunity to read the judgment. But over and above that, it's not for this part of the hearing to deal with legal arguments and judgments. That is basically for legal argument when we address the committee. It's not fair to Mr Xaso.
Adv Ka-Siboto: Thanks, thank you, Chairperson, perhaps before Chairperson, if I could just confirm this, Chairperson, because I see he was in a process of responding. I just want to confirm if he's interested in answering the question or he's going to take his cue from the Initiator before I respond Chair.
Mr Xaso: I'm interested to indicate the ruling did not say Members may be abused, by calling them whatever insults, but the judgment as I understand it said it was not unparliamentary for Hon Malema to refer to ANC government and the emphasis government as having massacred people in Marikana.
Adv Ka-Siboto: So I suppose you would not be giving a ruling and if you will, my response is this: Mr Xaso – despite objection by the Initiator – has decided to answer the question and I do not know whether you want to rule on whether I could ask the question or not.
Chairperson: The horses have bolted, you’ve already done that, let's reframe the question in a way that is fair to the witness.
Adv Ka-Siboto: Very well Chairperson I’ll desist from that line of questioning. But I place on record that the point is simply this. If a court finds it is parliamentary to call ANC government and I will submit that ANC government is not tins, desks or cups, it is human beings that make government. So by extension, reference is being made to individuals. That's the submission I'm going to make. Government is incapable as an inanimate being of murdering. It therefore stands to reason particular individuals are spoken about and I will submit specifically the President of the country, the then minister and the various commissioners. That's the point I was getting at, Chairperson. With that being said, your evidence earlier on, and sorry just to round that off, and if I'm correct on that basis, that it is permissible to call people murderers in Parliament, it must be equally by extension be parliamentary to call someone a money launderer or a criminal. That's the point I was getting at. Mr Xaso, if we then just take a step back. You had testified that it was never brought to the attention of the Speaker that someone had suggested that Shivambu MP is a murderer, do you recall that?
Mr Xaso: Yes, I said that there was no point of order and the Speaker may not have heard that, yes.
Adv Ka-Siboto: Let’s go to page 283. At the end of 283, Shivambu MP speaks. Thank you very much Chair. After being recognised by the Speaker, sorry, what comes before: the Speaker says, 'Thank you, Hon Letsie, Hon Shivambu followed by Hon Makhubele'. The Speaker recognises and can hear Shivambu speak. Shivambu MP says 'Thank you very much Speaker. During the interventions there was one ANC Member here who said we are murderers. They're mistaking us for their President who killed workers in Marikana. We don't kill people in the EFF. It's your President who kills people' and it goes on. Presumably the Speaker is listening and you can hear this objection I'm talking about the point you made that the Speaker didn't know.
Mr Xaso: I didn’t say the Speaker, through you, Chairperson.
Adv Ka-Siboto: Didn’t hear?
Mr Xaso: The Speaker may not have heard.
Adv Ka-Siboto: OK very well and then you continue. We accept that Shivambu MP made this point after the Speaker recognised Shivambu MP, do you accept that?
Mr Xaso: Yes.
Adv Ka-Siboto: And you accept that Shivambu MP specifically raise that point of being accused of being a murderer, do you accept that?
Mr Xaso: I accepted, Chair, and I accept that the Member could have raised a point of order on it.
Adv Ka-Siboto: Yes, and then what you see later on is the Speaker responding now to Hon Shivambu, page 284. 'Hon Shivambu can you please withdraw? Hon Shivambu, we are not throwing you out of the system, will you please do that'. Do you accept that the Speaker does not address Shivambu’s complaint, do you accept that?
Mr Xaso: I didn't see this as a complaint. Hon Shivambu is making remarks, 'Thank you very much Speaker. During the intervention there was one ANC Member who said murderer as they are mistaking us for their President who killed workers in Marikana. We don't…'. This is not a complaint. It's a statement being made and of course she… through your Chair, two wrongs don’t make a right.
Adv Ka-Siboto: Is it your proposition that if someone makes reference to unparliamentary conduct, at least as far as the Speaker is concerned, when you cast negative aspersions and in breach of the Rules? Now let's assume that's your mindset. And it must be because she reprimanded other people for calling others criminals. It's now your proposition that if you bring to the attention of the Speaker what should be unparliamentary conduct, at least as far as the Speaker is concerned. The Speaker has no obligation to deal with it because the Member has not raised a point of order. Technically, if it's made as a statement then it's not for the Speaker to deal with it?
Mr Xaso: Chairperson, what I'm saying is that I don't know why it was not dealt with, but Members know the processes that when you believe something that has been said by a Member is out of order, you raise it as a point of order. That is what happens in the majority of cases and there are instances where the Speaker would immediately rule on the matter.
Adv Ka-Siboto: But what we can accept is that it was brought to the attention of the Speaker that someone called Shivambu MP a murderer and the Speaker did nothing about it. That's the point I'm getting at.
Mr Xaso: What I accept is that Hon Shivambu made his remarks and continued to make other unparliamentary remarks and the Speaker ruled on those remarks.
Adv Ka-Siboto: Which remarks, sir?
Mr Xaso: 'That they are mistaking us for their President who killed workers in Marikana'.
Adv Ka-Siboto: And she did not respond to the initial remark which was a stark remark that 'We are being called murderers'. She didn't respond to that as far as you're concerned?
Mr Xaso: She responded with a statement of fact that Hon Shivambu was making.
Adv Ka-Siboto: I'll ask the question again. When Shivambu made this statement of 'called murderers', to the best of your knowledge, the Speaker did not respond or do anything about that, not so?
Mr Xaso: The Speaker did not respond to that aspect of the remark by Hon Shivambu. The Speaker addressed the accusation Hon Shivambu was making about the President.
Adv Ka-Siboto: To the best of your knowledge, has the Speaker, the Rules Committee, this committee dealt with the statement by Mr Shivambu?
Mr Xaso: No. And of course the Member also had a duty to bring it as a point of order to the Speaker, or any other Member could have raised that. So to the best of my knowledge, that part of the statement was not dealt with.
Adv Ka-Siboto: The conceptual difficulty I have with that is when some Members called the President a criminal, no one raised an objection. The Speaker responded immediately by saying 'Withdraw that', can you accept that?
Mr Xaso: Yes, I can accept that.
Adv Ka-Siboto: And no one had brought that to the attention of the Speaker because the Speaker heard it, not so?
Mr Xaso: Yes.
Adv Ka-Siboto: Surely then it is inconsistent of you to suggest that because no one brought the complaint to the Speaker, therefore the Speaker can't have done anything about it.
Mr Xaso: Chairperson, my submission and other submissions I've made…
Dr Ndlozi: You are unfair
Adv Ka-Siboto: Let's deal with this aspect. Let's go to page 285.
Mr Xaso: 285. Yes sir I am there.
Adv Ka-Siboto: There you see at the start Malema MP raising a point of order, the Speaker then addresses another issue. Then something else happens and then Malema MP raises a point of order again. Then the Speaker says there's no point of order, Hon Malema, I'm not allowing you to speak. He speaks nonetheless. He says the issue of Hon Shivambu was ruled on by the court. I'm suggesting there was only one matter that relates to Shivambu MP before the courts and that’s the VBS matter. Can you accept that?
Mr Xaso: I mean if you say that, I don't know. In fact, I have nothing to accept.
Adv Ka-Siboto: Let me assist you. The page before that was the VBS comment by Ms Phiri MP and then after she had spoken, not long after, Malema MP then deals with the issue of Hon Shivambu, yes, and the court. So it stands to reason she is addressing that issue, can you accept that?
Mr Xaso: Yes I can accept that.
Adv Ka-Siboto: And then right at the end Malema MP continues, 'The issue of Hon Shivambu was ruled on by the court that we can call Cyril Ramaphosa a murderer'. This is after, this is part of the problem and we will deal with the issue of the Hansard, there's clearly omitted text there. Can you accept the recording of what Malema MP says?
Mr Xaso: There seems to be something missing yes.
Adv Ka-Siboto: Yes, so there's text missing; then I will make submissions as to what it is he said then. But anyway it says there's a court ruling on that and then there's a court ruling on the matter. Now the point is simply this, can you then insist that the Speaker was not aware of the discussion around VBS?
Mr Xaso: No, I can’t insist.
Adv Ka-Siboto: Yes, so not only did the Speaker know about the VBS complaint or rather the disparaging remarks against Mr Shivambu MP, she also knew Shivambu’s statement about being called a murderer. And we've established earlier on that the Speaker has not done anything about any of those comments, not so?
Mr Xaso: We established that the Speaker was not asked to make a ruling on that and of course she also did not make a ruling on the matter.
Adv Ka-Siboto: Precisely. As an advisor to this committee, would you say the Members were treated fairly in this respect? I'm saying fairly and more specifically if Members that are charged are charged for calling the President a criminal and that is viewed as disparaging remarks, would you say it is fair on the other hand, the Speaker is aware of other disparaging remarks where Members are called murderers, they're called a VBS heist syndicate, those Members on the other hand are not punished as a matter of principle. Would you say that this is fair treatment to start with?
Mr Xaso: I'm not adviser of this committee, so I would not, I can't make a comment on the decision of the committee on these matters.
Adv Ka-Siboto: I should specify my question and perhaps I have misled you. What I mean is on the part of the Speaker, is it fair of the Speaker to admonish "The President, a criminal and a money launderer', yet at the same time not reprimand, admonish and seek punishment of Members that called Shivambu MP part of this syndicate in the VBS heist, would you call that fair?
Mr Xaso: Chairperson, the Speaker ran the proceedings on the day and she dealt with the matter before her to the best of her ability.
Adv Ka-Siboto: So your view is she dealt with the Members fairly.
Mr Xaso: My view is she dealt with the matters before the House on the day fairly.
Adv Ka-Siboto: Very well Chairperson. I want to start a new topic of cross examination. It should take me beyond 4:00. I do not know whether now being the appropriate time to then adjourn. Alternatively, I continue with the line of examination. I'm in your hands Chair.
The Chairperson thanked Adv Ka-Siboto for raising the time issue. The Committee had to respect everyone’s time. Since it was scheduled to end at 4:00, she agreed with Adv Ka-Siboto that the meeting should end at 4pm so he would have ample time for his new line of questioning in the next session. The meeting was thus adjourned.
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.