National Assembly 9 and 10 June 2022 incidents: hearing

Meeting report

Adv Mfensane Ka-Siboto (EFF Counsel): If you could then perhaps, assist me, Chairperson, as per Mlenzana MP’s suggestion that you indicate at what point that you lost us so that I can resume from there?

Chairperson: We lost you at the point where Mr Xaso was responding that yes, Hon Tambo stood between the Sergeant-at-Arms with Hon Chirwa.

Adv Ka-Siboto: Thank you, Chairperson. Let me ask the question again, Mr Xaso, do you accept that if Mr Tambo had not stood up there would have been no way for the Sergeant-at-Arms to get to Ms Chirwa?

Mr Masibulele Xaso (Secretary to National Assembly): I do not accept that because Members can walk behind. I mean, a person can walk behind Members when they are seated down as they are supposed to.

Adv Ka-Siboto: Well, I am happy. I do not know if the video is available. And I want Mr Xaso to point exactly at what space the Sergeant-at-Arms would have walked behind Mr Tambo, because I am suggesting to him there was not enough space for the Sergeant-at-Arms to get to Ms Chirwa. Do we perhaps have a video of the day so that you can beam it and I can ask for Mr Xaso’s comment? It is the 10th of June sitting.

Mr Xaso: Ninth – 9th of June. It could be the 10th. Okay, sorry.

Adv Ka-Siboto: Chair, if you could just confirm with the IT (Information Technology) if we got the video footage of the 10th of June?

Chairperson: IT?

Adv Ka-Siboto: Perhaps while they do that, Chair, so that we do not sit for unnecessary periods of time I will revert to this question when the video is beamed. I will now want to put to you, Mr Xaso, that when the video shows that there was no space for the Sergeant-at-Arms to get to Ms Chirwa – if that is the case – then you can accept that Mr Tambo would have had to stand for the Sergeant-at-Arms to get Ms Chirwa, not so?

Mr Xaso: Chair, I would accept that Hon Tambo would have had to stand and make way for the Sergeant-at-Arms to get to Ms Chirwa.

Adv Ka-Siboto: Yes. You say that you do not know what the Sergeant-at-Arms and Mr Tambo discussed?

Mr Xaso: No, I do not know, Chairperson.

Adv Ka-Siboto: So it is possible that he stood to address him, not to obstruct, not so?

Mr Xaso: You're talking about the Sergeant-at-Arms now? I am asking for clarity.

Adv Ka-Siboto: I am talking about the interaction between Mr Tambo and the Sergeant-at-Arms. If you do not know what was discussed – by the way, did you ever ask Mr Tambo what was discussed between him and the Sergeant-at-Arms?

Mr Xaso: No, I did not, Chair, and I did not ask the Sergeant-at-Arms either because I did not need to.

Adv Ka-Siboto: Yes, so you would not know what the conversation between the two of them was?

Mr Xaso: No, I would not know.

Adv Ka-Siboto: And it is therefore possible that Mr Tambo stood not to obstruct but to address the Sergeant-at-Arms?

Mr Xaso: Chair, it is possible that he stood – I do not know what he stood for – but I mean anything is possible but the effect of what he did is obstructing the Sergeant-at-Arms.

Adv Ka-Siboto: Yes, so he might not have had the intention to obstruct but to address the Sergeant-at-Arms, not so?

Mr Xaso: Chair, Hon Tambo would have the opportunity to state why he did, if that was his intention. But certainly, in terms of the Rules, the effect of what he did was to frustrate a directive of the chairperson by blocking the Sergeant-at-Arms.

Adv Ka-Siboto: Yes. Do you recall the last time we had a discussion and I had taken issue with the Initiator at the time that she suggested answers to you, and then you just confirmed up until a point where you completely disagreed with her. Do you recall that line of examination?

Mr Xaso: No, I do.

Adv Ka-Siboto: Yes, and I am saying to you the answer you had given then initially is not the answer you are giving now. Do you recall that conversation?

Mr Xaso: Chair, what I said at the time was that there was a conversation between the Sergeant-at-Arms and Hon Tambo, and later on, during the pleading of evidence, I did indicate that, of course, the effect of that was blocking the Sergeant-at-Arms.

Adv Ka-Siboto: Yes, but your initial view was not that they are blocking – let me not say it that way. Your initial answer was not to say Mr Tambo is blocking [the Sergeant-at-Arms]. Your initial answer was he is having a conversation with the Sergeant-at-Arms. Do you recall?

Mr Xaso: Chair, I mean, that is what I am still saying even now, that he had a conversation with the Sergeant-at-Arms and he had, for a lack of a better way of putting it, no business having a conversation with the Sergeant-at-Arms because he was not the one being asked to be removed.

Adv Ka-Siboto: No, but Mr Xaso, I am having a different conversation with you. I am asking you a specific question: do you recall that your initial answer was not that Mr Tambo was blocking the Sergeant-at-Arms?

Mr Xaso: Chair, yes, I do. There was a video playing and I was asked ‘What is he doing?’, and I said ‘He is having a conversation with the Sergeant-at-Arms.’

Adv Ka-Siboto: Yes, and I am saying to you that is exactly what happened: he was having a conversation with the Sergeant-at-Arms. We can have a discussion whether he is entitled to or not, I am simply saying that he was having a conversation. And I am saying to you that he is going to come here and confirm that version. Do you have anything to discredit what he would be saying if you did not have an opportunity of hearing him? Secondly, do not ask him or the Sergeant-at-Arms, then you have nothing to disprove what he would be saying, not so?

Mr Xaso: Chair, I have no business to discredit Hon Tambo; I have business to talk about what I saw in the House and the effect of what I saw in the House. So it will be for this Committee to decide whether what he said is discredited or not.

Adv Ka-Siboto: So you will have nothing to say that opposes his version?

Mr Xaso: If I may ask, Chair, just if Mr Ka-Siboto can repeat what he has just said?

Adv Ka-Siboto: So you will have nothing, factually, to disprove his version?

Mr Xaso: Chair, firstly, I have not heard his version. Secondly, I am saying that Hon Tambo was talking to the Sergeant-at-Arms. And I am saying, also, that he had no business talking to the Sergeant-at-Arms at that point. And the effect of that was blocking the Sergeant-at-Arms. That is what I am saying.

Adv Ka-Siboto: Why did he not have any business talking to the Sergeant-at-Arms?

Mr Xaso: Why would he need to? The Sergeant-at-Arms was not sent to him, he was sent to Hon Chirwa.

Adv Ka-Siboto: No, no, Mr Xaso. I am saying is there any rule that prohibits Members of the House speaking to the Sergeant-at-Arms, for whatever reason?

Mr Xaso: Chair, there is no rule that says that Members may not speak to the Sergeant-at-Arms, but there is acceptance that when the Sergeant-at-Arms is asked to carry out functions, Members must allow the Sergeant-at-Arms to carry out the functions.

Adv Ka-Siboto: Do you know that the charge of blocking and obstructing a Sergeant-at-Arms requires intentions?

Mr Xaso: It may very well require that.

Adv Ka-Siboto: And if you do not have an intention of obstructing, then you cannot be guilty of the charge.

Mr Xaso: Chair, it will be for this Committee to decide that – let me just put that.

Adv Ka-Siboto: Yes, but surely, if you had a discussion with the various structures of this House, as well as advise the Speaker, the question of whether you intentionally did it or not should have come up, not so?

Mr Xaso: Chair, it was not [for] Speaker to assert an intention or otherwise, it is for this Committee to do that. What the Speaker has reported is what occurred in the House on the day, and the effect of what it did to the proceedings of the House.

Adv Ka-Siboto: I am asking a different question. I am saying you had told this Committee that your function is to advise the Speaker and the various structures leading up where we are now, not so?

Mr Xaso: Yes, I do.

Adv Ka-Siboto: And the question is, surely, if you are going to charge a Member, the question of whether you had the intention to obstruct must have come up in discussing the charges.

Mr Xaso: Chair, I think I must say this once more. The only structure that has the power to charge Members is this structure. The Speaker does not fit in this structure. And so Speaker ruled in the House, guided by the Rules. The matter went – and apologies, Chair, I am going to be a bit long on this one, because I have to repeat this point for understanding – to the structure that deals with the removal of Members. That structure does not charge Members. And again, it went to the Rules Committee. The Rules Committee does not charge Members. The Rules Committee felt, okay, this thing needs to be assessed, and of course, recommended that it must come to this structure. Hence, it is here. So it is this body, the Powers and Privileges Committee that has decided to charge the Members. Thank you, Chair.

Adv Ka-Siboto: Mr Xaso, I am not going to go away. I am going to persist with this question until you answer it. In the process of us being here, all these structures you are talking about must have asked themselves the question: if you are required to have an intention to obstruct for you to be guilty of the charge, that must have been considered, surely?

Mr Xaso: Chairperson, I will try. And of course, Mr Ka-Siboto, I do not want you to go away. The point I am making is that when matters are then referred to this body, the body makes an assessment whether to charge or not to charge a Member. And of course, there have been instances where this Committee decided not to charge for various reasons. So I am saying that the Speaker made a ruling in the House in terms of what she observed in the House, and the Rules Committee, in its wisdom, decided that these matters needed to be taken further so that they can be assessed. The Speaker does not charge Members.

Adv Ka-Siboto: Exactly. I am happy with an ultimate answer. The Rules Committee made the determination that they should be charged, yes?

Mr Xaso: No – again. I am saying no. The Rules Committee made a determination that they should be referred to the Powers and Privileges Committee to assess whether there was a basis to charge or not.

Adv Ka-Siboto: Yes, and that determination was made. They are charged.

Mr Xaso: The determination was made that they are charged by this body. Now this body will assess my evidence, will assess your submissions, and will assess the possible submissions of Hon Tambo. On the basis of that, this Committee will decide whether there was intent or what, or whether what I say is what happened in the House. So that is really what the position is.

Adv Ka-Siboto: No, but, Mr Xaso, again, let me draw a parallel. When the National Prosecuting Authority (NPA) decides to charge someone with a crime, they do not decide if they are guilty or not. But part of that assessment is a determination of whether all the elements of that crime have been met or not, not so?

Mr Xaso: Chair, I cannot comment on the NPA. I can comment on parliamentary processes. The lawyers will comment on those issues if they need to.

Adv Penolope Magona-Dano (Committee Initiator): Sorry, Chair? I would like to step in at this stage. This is Adv Magona-Dano.

Chairperson: Yes, Adv Magona-Dano?

Adv Magona-Dano: Chair, my learned colleague deals with the issues as he had correctly put, on the elements of a charge. And those are issues that we as legal representatives will have to argue before you whether they are present on each charge against an affected Member. So at the end of it all, when we have presented the evidence before you, as well as the Committee Members, it is for us to then draw your attention on each charge against each Member and whether it can stand or not. So in my respect to such submission that this point needs to be… we need to move on from this point. Mr Xaso has taken it as far as he can. It does not need to be an answer that my learned colleague, Mr Ka-Siboto, perhaps is seeking. But an answer has been provided by the witness. Thank you, Chair.

Chairperson: Thanks, Adv Magona-Dano. Adv Ka-Siboto, the Initiator is indicating that you have dealt with the matter and it is up to you, the legal representative, to draw the line on whether the charges stand, not the witness. Can we move on, Adv Ka-Siboto?

Adv Ka-Siboto: I am happy to, Chairperson.

Chairperson: Thank you.

Adv Ka-Siboto: In due course, Mr Xaso, I will submit that for this Committee to charge or not to charge a Member, they would have had an assessment as to whether all the elements of the offence have been matched or not. And that is the reason. In some instances, this Committee decides to charge Members and it decides not to charge members because they would have made that assessment. Do you have difficulties with that proposition?

Mr Xaso: No, I have no difficulties with that proposition, Chair.

Adv Ka-Siboto: Yes, and that is all I was trying to say all along. That is all I was trying to say all along.

Mr Xaso: I wish you had said that at that point.

Adv Ka-Siboto: Okay, I deserve that. I deserve that. Fair enough. And had this Committee undertaken that exercise they would have known that absent any version from the Sergeant-at-Arms there would not have been an intention on Mr Tambo’s part because they would have had the benefit of what Mr Tambo said, which is not obstructive. And you have accepted that you have got nothing to disprove his factual version, not so?

Mr Xaso: Chairperson, again, I am a witness of what I have seen in the House. I do not advise this Committee, so this Committee will answer for itself when that time comes. Thank you.

Adv Ka-Siboto: Very well. And I suppose my proposition is this in regards to Mr Tambo. Let me put a version to you, and what his defence is, and you will comment on it. His defence is that he did not stand with an intention to obstruct. Do you have a comment on that?

Mr Xaso: I have no comment on that, Chair. That is his version.

Adv Ka-Siboto: Yes. The fact that he stands and physically it might be impossible to walk past him, does not in itself prove an intention to obstruct. Do you have a comment?

Mr Xaso: It would be for the Committee, Chair, to make that assessment.

Adv Ka-Siboto: His defence is also that he was not afforded – and we have established that the Speaker must apply the Rules fairly and consistently in respect of each Member – the same courtesy as other Members.

Mr Xaso: That will be his defence, Chair. Of course, the Committee will assess my version and decide how to conclude the matter.

Adv Ka-Siboto: I will argue on his behalf that unlike other Members, he was not firstly asked to desist from doing what the Speaker has an objection to. Do you have an answer?

Mr Xaso: Chair, indeed, I have an answer that the Committee will assess his version, and also assess what the Rules require – that there is no such requirement in the Rules.

Adv Ka-Siboto: And secondly, notwithstanding no such requirements, she nonetheless afforded those courtesies to other Members. Do you have a comment?

Mr Xaso: Chair, indeed, the Speaker assesses the situation and deals with the context in the matter.

Adv Ka-Siboto: Not only that. He was not even afforded the courtesy of the Sergeant-at-Arms asking him to leave the House. Do you have a comment?

Mr Xaso: Chair, I have said that there is no such requirement. That is my version.

Adv Ka-Siboto: Notwithstanding absence of such requirements, nonetheless, the Speaker afforded other Members that courtesy, not so?

Mr Xaso: In a different context the Speaker would have afforded those Members. That is my version, Chair.

Adv Ka-Siboto: Not only that, the Speaker did not even ask Mr Tambo to leave the House. Do you have a comment?

Mr Xaso: Indeed, Chair, because as I have said, there is no requirement on the part of the Speaker in this instance.

Adv Ka-Siboto: Notwithstanding absence of such requirements, she nonetheless afforded that courtesy to other Members, not so?

Mr Xaso: Because the context was different and therefore she did. Yes, Chair.

Adv Ka-Siboto: Yes, and what is interesting is you will recall the evidence and the charges against Mr Ceza and Mr Paulsen. They too are charged with the exact same thing as Mr Tambo, but they were asked to leave the House. Do you recall?

Mr Xaso: I do recall, Chair.

Adv Ka-Siboto: So it cannot be a question of context in a different context, because in the exact same context Mr Tambo was not given the same courtesy, not so?

Mr Xaso: Chairperson, the Committee will consider all the facts before it and decide.

Adv Ka-Siboto: Yes. And the only recourse the Speaker had against Mr Tambo, notwithstanding none of these courtesies being afforded to him, was to just evict him from the House, not so?

Mr Xaso: Chair, the Speaker applied Rule 73(5). I will not use the word ‘evict’ because it is not in the Rules, and the Member was removed.

Adv Ka-Siboto: Yes, and you will recall, again, during the disciplinary hearing of Ms Mente and others – Mr Paulsen and Mr Ceza – that this Committee took a decision that because Ms Mente was treated differently to Mr Mkhize they would not persist with the charges against Ms Mente. Do you recall that?

Mr Xaso: Indeed, the Committee exercised its right and, of course, in its wisdom, decided not to charge Hon Mente.

Adv Ka-Siboto: Do you remember that the reason for not persisting with the charges against Ms Mente was precisely because she was treated differently to Mr Mkhize – Dr Mkhize, my apologies. Do you recall that?

Mr Xaso: Chairperson, I recall that the Committee decided not to proceed with Hon Mente. And of course, it is the right of this Committee to proceed or not to proceed. And even in this instance, the Committee will apply those [and] will take that into account. Thank you.

Adv Ka-Siboto: I accept what you are saying, but I asked you a specific question. Do you recall their reason for not persisting against Ms Mente?

Mr Xaso: Chair, I do not recall every reason because remember, I just give testimony and the Committee decides in my absence on what to do, or [not] what to do. So the Committee itself will have to deal with those issues [and] the reasoning.

Adv Ka-Siboto: That is fair enough. No, that is fair enough. I accept that. And I am putting it on the record that that was the reason she was treated differently to Dr Mkhize, pursuant to our submissions that she was treated unfairly when you compare her conduct to that of Mr Mkhize. And I am just placing that on record. I do not know if you have got the bundle that has the affidavits of the witnesses for this Committee?

Mr Xaso: You may direct me to the page. I possibly do have that.

Adv Ka-Siboto: I am talking about Mr Linfield’s affidavit at the moment.

Mr Xaso: If you could give me the page number, Chair. I would appreciate that.

Adv Ka-Siboto: It is not paginated, but I do not know if it is marked the same way as mine. Mine on the spine says ‘Index correspondence witness statements.’

Mr Xaso: My colleagues will assist with me that, or the Evidence Leader could, so we do not delay the proceedings. Am I getting assistance? Through you, Chair.

Adv Ka-Siboto: Would you hand the copy to Mr Xaso? Perhaps you can give him Mr Tebello Maleeme’s one as well? I want to take him through those. Chairperson, I do not know if yourselves have a copy of this document? If you do not, I suppose it is fine because I will read out the relevant sections. I do not know if the Committee and the Chairperson have the affidavit in front of them?

Chairperson: Can you please proceed and read them out, Adv Ka-Siboto, to save time.

Adv Ka-Siboto: Thank you, Chair. Mr Xaso, you have got in front of you an affidavit by Ms Lyn Alice Carolfield, not so?

Mr Xaso: Yes, Darlene Alice Carolfield.

Adv Ka-Siboto: And paragraph one says: “I am employed by the Parliament of the Republic of South Africa as a chamber support officer in the Parliamentary Protection Services.” Do you see that?

Mr Xaso: I see that.

Adv Ka-Siboto: And then if you go over the page at paragraph five, she says…

Mr Xaso: Paragraph five, you said?

Adv Ka-Siboto: Paragraph five, yes, Sir. She says: “I have viewed the video footage of the National Assembly proceedings held in the Chamber of Good Hope when the President’s Budget Vote Speech took place on 9 and 10 June 2022.” We, of course, know that Mr Tambo was charged in relation to 10 June 2022, not so?

Mr Xaso: Yes.

Adv Ka-Siboto: “I was on duty on these dates and I confirm that I, together with other female chamber support officers entered the Chamber at the request of the Acting Sergeant-at-Arms to remove some of the EFF Members from Parliament, including Ntlangwini, Mafanya, Mathulelwa, Marais, Chirwa, Madokwe and Mkhonto.” Do you see that?

Mr Xaso: I do see that.

Adv Ka-Siboto: And there is nothing here that speaks of Tambo, not so?

Mr Xaso: Yes, there is not.

Adv Ka-Siboto: And there is no other affidavit – and you can ask your legal team to confirm – that confirms that Parliamentary Protection Services (PPS) was instructed to remove Mr Tambo, not so?

Mr Xaso: What you are saying is not in the affidavit.

Adv Ka-Siboto: And neither is there an affidavit that says so.

Mr Xaso: I have not seen it, Chair.

Adv Ka-Siboto: If you then go to Mr Tebello Maleeme’s affidavit, which I believe you have been given by your legal team. Do you have it?

Mr Xaso: Yes, I have it, Chair.

Adv Ka-Siboto: He says at paragraph one: “I, the undersigned, Tebello Maleeme, do hereby make an oath and state that I am an adult male employed by the National Assembly as the Acting Sergeant-at-Arms.” Do you see that?

Mr Xaso: Yeah, I see that, Chairperson.

Adv Ka-Siboto: If you then turn the pages and go to paragraph fifteen…

Mr Xaso: I am there, Chairperson.

Adv Ka-Siboto: He says: “I can confirm and verify that on 9 June and 10 June 2022…” and we have confirmed that Mr Tambo was charged in relation to 9 June 2022, “during the sittings of the National Assembly for the President's Budget Vote Speech and reply thereto, I was seated in the designated area at the back of the Chamber when I was called upon by the Speaker on 9 June 2022, to remove Ntlangwini, Mathumba, Mafanya, and Mathulelwa. I was called upon by the Speaker on 10 June 2022 to remove Ntlangwini, Matumba, Marais, Chirwa, Montwedi, Yako and Mkhonto.” Do you see that?

Mr Xaso: Yes, I do see that.

Adv Ka-Siboto: Again, there is no indication he was asked to speak to Mr Tambo, not so?

Mr Xaso: Yes, there is not.

Adv Ka-Siboto: Yes, and I am saying to you that then just confirms the discussion we have been having, that at no point did the Speaker apply any other principle or rule or prerogative, but just to kick out Mr Tambo, not so?

Mr Xaso: That is your version, Chair. I disagree with that version. As I indicated, the Speaker applied Rule 73(5) and (6).

Adv Ka-Siboto: And you also accepted that the Speaker, notwithstanding the same charge, obstructing the work of Parliament, Mr Ceza and Mr Paulsen, who were charged with the same charge, were asked to desist from doing what they are doing. Only then did the Speaker ask that the Sergeant-at-Arms and PPS seek to remove Mr Paulsen and Mr Ceza. Do you recall that?

Mr Xaso: Chair, I seem to recall that. But as we know that is not the case now. Yes.

Adv Ka-Siboto: Yes, and she therefore, at least insofar as those three people are concerned – Mr Tambo, Mr Ceza and Mr Paulsen – she did not apply the same discretion the same way, not so?

Mr Xaso: Chair, I have said it, that the Speaker would assess the context and the situation in the House and apply the Rules. So in that instance she may have decided to take that approach.

Adv Ka-Siboto: And what is interesting is that – because you are speaking of context, do you recall that Mr Paulsen was said to have physically obstructed the PPS by pushing them backwards. Do you recall that charge against him?

Mr Xaso: Chair, I must say that because this happened – I cannot even remember the month now – in January or December I may need to verify that. Yes, that may well have happened.

Adv Ka-Siboto: And in fact, it was said that he created a volatile, violent situation in Parliament. Do you recall that?

Mr Xaso: Yes, Chair, that may have been the charge.

Adv Ka-Siboto: Yes, but nonetheless, he was granted all these courtesies. There is an objection from the (Initiator).

Adv Magona-Dano: My apologies, Chair, and to my learned colleague. I do not want to just interject in this nature. Chair, I am concerned that we would bring facts of other cases before the witness, who is here to answer another case. That is the various states. To avoid any confusion, even to the witness, including myself, might I ask that my learned colleague be restricted to the facts and the issues that are before this committee, which involves the incidents of nine and ten June? And should we have anything further that we would like to argue before you go back to arguments – to put matters before you so that you can compare as you come to making a decision, then that we can draw it in during argument. But whilst the witness is testifying, I think it is fair to Mr Xaso, who I assume, only prepared to answer on 9 and 10 June. It would be hard for anyone, I know myself, to now remember what took place in December when we had the other procedures, Chair. I would really ask for that.

Chairperson: Adv Ka-Siboto, can we agree to reserve that for arguments, concluding arguments, and restrict ourselves, as Adv Magona is saying, to the 9th and 10th, so that all of us are able to follow? Can we reserve that for your concluding arguments?

Adv Ka-Siboto: Can I ask for a right of reply, Chair, please?

Chairperson: Yes, I am giving you the platform, Adv Ka-Siboto.

Adv Ka-Siboto: Thank you, Chairperson. It is a strange objection, with respect, Chairperson, in the sense that Mr Xaso testified about these facts I am asking him about. I am happy for Mr Xaso to say, ‘I do not remember’. But how are we assisting this Committee by stifling fair questioning? If he does not remember, then he does not remember. I cannot reserve it for argument because then I would not have elucidated the facts that I seek to elucidate. I cannot in argument say this is what happened and Mr Xaso accepted it, if he did not accept it. That is the difficulty I have, Chairperson. It is the same witness who spoke about the exact same facts. If he does not remember, then he can say so. And if I want to take him to that evidence to show him the transcript of the day, then perhaps that is an election I have. This is an important aspect of my examination of Mr Xaso, which is to prove that the chairperson applies the same rule inconsistently. I cannot prove that point without making a submission and this line of questioning of Mr Xaso. I appeal to you, Chairperson, that you allow me to persist with this line of questioning, and if Mr Xaso does not agree or does not remember, I am happy for him to say does not remember. But I simply cannot be stopped from asking questions about things he himself testified about, with respect, Chairperson.

Chairperson: Thanks, Adv Ka-Siboto. Adv Magona, do you follow what he has said?

Adv Magona-Dano: Yes, Chair, I do follow. However, I still stand on the objection, Chair. In my understanding of the procedure, Mr Xaso, I take it, appears in many committee proceedings before the Parliament and various committees. It would not be fair, that he would be expected to come and testify about one of the cases that he had testified to just because we want to prove a point in another case. I think my emphasis, Chair, is that let us have limitations, Chair, otherwise, we are going to be here and re-hear a matter that was dealt and finalised with in December. Again, anything we would like to compare that was dealt with in that matter that we feel that maybe this Committee is not consistent with, then therefore it is for us as legal representatives to put it before you to say then ‘Committee you dealt with Mr Marais in another matter in a particular way and manner, but now you are dealing with this similar situation differently.’ That will be for argument, Chair. So I do stand on my objection. I would like to implore the Hon Committee to make a ruling with regards to the objection as well as the reply of my learned colleague. Thank you, Chair.

Chairperson: Thanks, Adv Magona. Can we then agree, Hon Members and the witness, Mr Xaso, that where you do not remember you must just indicate for the sake of continuity on this, so that we do not dwell much on this matter. If reference is made on the recent cases that you dealt with, points that you do not remember, indicate that you do not remember, so that we deal with Mr Tambo’s matter and close it. That will be the ruling.

Adv Ka-Siboto: Thank you, Chairperson.

Chairperson: Can we continue, Adv Ka-Siboto.

Adv Ka-Siboto: I appreciate it, Chairperson, and I thank you for your ruling. Mr Xaso, you would recall that last December you had testified about Mr Paulsen in his disciplinary hearing. Do you recall?

Mr Xaso: Yes, I do recall, Chairperson.

Adv Ka-Siboto: Yes. Do you recall that you testified that he physically pushed PPS members? Do you recall that?

Mr Xaso: Chairperson, I think it is important that I state that I may not recall everything accurately because remember, at the beginning of that hearing, I would have refreshed my memory. So I will answer, but as long as we understand that some of the issues may be subject to verification. Yeah.

Adv Ka-Siboto: No, that is fair. Do you remember that specific fact, that you had testified that he physically pushed PPS members? That specific fact, do you recall it?

Mr Xaso: Yeah.

Adv Ka-Siboto: Yes, and I am saying to you, notwithstanding that, the Chairperson, or rather, the Speaker, took a decision to ask PPS members to remove Mr Paulsen, having asked him to desist from doing what he was doing. Do you recall?

Mr Xaso: Chair, what I would like to say is that the Speaker would always deal with the context and the prevailing circumstances at the time, that may very well be what she did.

Adv Ka-Siboto: Yes, and I am suggesting to you that Mr Tambo did not even touch or physically engage with the PPS member. Do you know that?

Mr Xaso: Do you mean the Sergeant-at-Arms?

Adv Ka-Siboto: Yes, but notwithstanding the Paulsen facts and the courtesies granted to Paulsen in that circumstance, Mr Tambo, in this instance, was not afforded the same courtesies. Do you accept that?

Mr Xaso: I accept, Chair, that the Speaker, in terms of the Rules she applied those rules that I have indicated initially, and she applied them correctly.

Adv Ka-Siboto: Yes. The reason I am asking you these questions is [because you are] saying it depends on the context. Now what I am trying to get from you, what context is so grave in Mr Tambo’s conduct that warrants no courtesy, but an immediate eviction. How is that context any more grave than what Mr Paulsen did, because you said context matters? What is the context that distinguishes the two?

Mr Xaso: Chairperson, I think the point I am making is that, one, there is no such requirement in the Rules. That is point number one. And number two, at a particular point, the Speaker may have decided to say ‘Please stop.’ But in this instance, the Speaker decided that the Member must be removed forthwith because that is what the rule says.

Adv Ka-Siboto: And in keeping with this theme, that the Speaker in breach of the rule, I will submit, in breach of the parliamentary rules, inconsistently applied her discretion at different times. We obviously do not have time to go through the video. And I want to suggest to you that the Speaker inconsistently applied the no point of order rule or discretion. It is a submission I suggested to you earlier, when we were here the first time. Do you recall that conversation?

Mr Xaso: Chair, it may have happened, but I cannot say I recall. It is possible that you did say that.

Adv Ka-Siboto: She had said ‘No point of order.’ And some of my Members were kicked out because they spoke when she had made that ruling that there was no point of order. Do you recall that?

Mr Xaso: Yes, that may have happened.

Adv Ka-Siboto: And what is strange, having said no point of order and kicked out some of the Members of the EFF for speaking when she had ruled no point of order, Dlakude MP – and it appears at page 286 of the main bundle, and it is at 00:56:15 of the video – raised a point of order and she was allowed. Do you have anything…

Mr Xaso: Are we talking about the 10th or the 9th?

Adv Ka-Siboto: We are back at the 9th. My apologies, we are back at the 9th.

Mr Xaso: Okay. Yes, I recall Hon Dlakude asking for a point of order.

Adv Ka-Siboto: Yes, notwithstanding the fact that the Speaker had said ‘No points of order’.

Mr Xaso: Yeah, I recall that.

Adv Ka-Siboto: It is the same thing with [inaudible] MP. Do you recall that?

Mr Xaso: I recall that.

Adv Ka-Siboto: The same thing with Mr Dyantyi. Do you recall that?

Mr Xaso: Yeah, I recall that. Chairperson, I also need to state that following the video there are a lot of Hon Members who raised different points at different times – others, of course, did not identify themselves – and they said things that could have been ruled otherwise. But yes, I do recall Hon Dyantyi.

Adv Ka-Siboto: Yes, so did Mashele MP?

Mr Xaso: Mashele MP had been recognised by the Speaker. In fact, all of these Members were recognised by the Speaker.

Adv Ka-Siboto: But that is the point I am making. The Speaker recognised them having said ‘No points of order.’ That is the point I am making. Do you accept that?

Mr Xaso: Well, that may have happened. Yeah.

Adv Ka-Siboto: Yes, and the EFF Members were ruled out of order for speaking after she had said ‘No points of order’. That is the point I am making.

Mr Xaso: Do you want me to respond?

Adv Ka-Siboto: Yes.

Mr Xaso: Chairperson, it is possible, but not in all instances were Members ruled out of order. In some instances Members rose and the Speaker said ‘Please sit down. Stop it’ and the Member continued in complete disregard of the Speaker. None of these Members that you have mentioned, whether Dyantyi or Hon Dlakude, were ever stopped and still continued even when they were stopped.

Adv Ka-Siboto: So you are saying it is a violation of the rule that warrants sanction if you speak after the Speaker says ‘No point of order’?

Mr Xaso: Chairperson, I am saying that if the Speaker says ‘Please, sit down. I have said no point of order’ and a Member continues to speak even when the Speaker said he or she must sit down, that is a disregard of the chair.

Adv Ka-Siboto: Yes, and that warrants sanction from the chairperson, not so?

Mr Xaso: If a Member disregards the authority of the Speaker, when the Member rises on a point of order and the Speaker says ‘I have said no points of order. Please, sit down’ that is a violation of Rule 70.

Adv Ka-Siboto: I agree with you. And what is interesting is that on the 10th of June 2022, at page 610, at 03:21:24 of the video, Mandela MP raised a point of order when the chair had ruled no points of order. And the chair says, ‘I am not taking any points of order.’ He did not sit down. He persisted speaking to the Speaker. Do you know that?

Mr Xaso: Chair, I do not recall that, but it may have happened.

Adv Ka-Siboto: And I will be interested in you viewing that video footage, and you will see it yourself. And again, there is that inconsistent application again, if I am correct, not so?

Mr Xaso: Chair, that is your version – it is Mr Ka-Siboto’s version, not mine.

Adv Ka-Siboto: And you say this is a disregard of the Rules – when you speak after the chair had ruled no points of order?

Mr Xaso: Chair, I think I need to – I hope I am not using the word ‘context’ out of context – state that there is a situation where the Speaker says there shall be no points of order. And a Member rises, and the Speaker says ‘Sit down.’ And the Member continues and the Speaker says ‘Please, sit down’ and the Member continues. That would be dealt with differently.

Adv Ka-Siboto: That is precisely what Mandela MP did though. That is the point I am making.

Mr Xaso: He may have done it.

Adv Ka-Siboto: And he was not sanctioned by this House, was he?

Mr Xaso: Well, he is not charged here, but one would have to view that…

Adv Ka-Siboto: Neither did the Speaker ask him to leave the House.

Mr Xaso: And in fact, Chair, I also need to state that where Members believe that there was something outrageous that happened in the House, they have a duty to raise that. So if anyone felt that the Speaker applied the Rules inconsistently on the day, there is a Rules Committee, there is a Speaker even in the House itself that may have raised a point of order. So I will not dispute what you are saying, but all I am saying is that Members know that they do not have to wait two years for them to raise issues of concern on the day. Thanks.

Adv Ka-Siboto: But what is interesting is that you are asking the disgruntled Members to go to the Rules Committee to complain about the conduct of the Speaker and their fellow MPs. But with my clients that is not what happens; no one goes and complains, the Speaker rules there and then and no one has an obligation to go and complain about the conduct of my Members. That again, is an inconsistent expectation, is it not?

Mr Xaso: No, it is not. It is not… Okay.

Adv Ka-Siboto: Very well. No, no, I am happy for you to expand if you wanted to. My apologies.

Mr Xaso: All I am saying, Chair, is that there are various platforms for raising concerns. The House is that platform to raise your concerns immediately in the House. And of course, if you have a difficulty with a ruling that has been made by the Speaker, you have the option of writing to the Rules Committee to discuss the principle of that ruling. So it is not like Members are ‘banned’ from raising issues, for lack of a better word. So we are here now, because this matter has reached this point. So it will be for these Hon Members to raise whatever mitigating factors in this Committee for the Committee to decide for itself. Thank you, Chair.

Adv Ka-Siboto: Well, I am not concerned about what rights they have and do not have. What I am simply saying to you is that the Speaker inconsistently applied to the same rule where she asked some Members of the House to leave the House when they speak after she had ruled no points of order. Because in this instance, I am suggesting to you that it has happened a number of times with the other Members of Parliament, including Mandela MP, who spoke despite the Speaker saying, no points of order. I am simply saying that is an inconsistent application of the rule, regardless of what rights people have, or do not have. Do you have a response?

Mr Xaso: Chairperson, that is the version of Mr Ka-Siboto, it is not my version. My version is that the Speaker applied the Rules on the day in terms of what is expected of her to do. And that is what happened on the day. Thank you.

Adv Ka-Siboto: And I am also suggesting to you, do you recall the discussion we had about Shivambu MP?

Mr Xaso: Yes, I do recall the discussion we had towards the end of the last time we were here.

Adv Ka-Siboto: And you had suggested to me that the issue of Mr Shivambu being called a murderer was not brought to the Speaker’s attention, and I showed you where it was actually brought to the Speaker's attention. Do you recall that?

Mr Xaso: That may have happened, Chair. Yeah.

Adv Ka-Siboto: Yes, and I am saying to you that the person who called Mr Shivambu a murderer in the House with the full knowledge of the Speaker, is not in front of this House, is she?

Mr Xaso: No, he is not in front of this House. And of course, any Member could have raised that concern at that point already, to say, ‘Speaker, you did not rule on this matter’ or to say, ‘Speaker, I want this matter referred to the Rules, why did you not rule on this matter?’ So I am saying Hon Chair and Hon Members, Members have freedom of speech, of course, limited by the Rules. And Members have options to raise their grievances, or areas of concern in the House now. On the day, Chair, without taking much of your time, a lot of Members said things, including Hon Shivambu earlier on, and there was no point of order raised, obviously, and other Members said things in the House. So I am trying to say there are options available to Members to raise areas of concern, if there are and if they feel that the Speaker or they believe that the Speaker has not applied the Rules in a particular case.

Adv Ka-Siboto: I accept that, and I have accepted that point. You have repeated it a number of times. I accept it. I am saying to you, I am not asking about rights people have and rights [they] do not have; I am talking about the Speaker and the inconsistent application of the rule. I am saying to you, Shivambu MP was called a murderer, and that was brought to the Speaker's attention. We accept that. I am saying the Speaker did not ask that Member to withdraw or kick them out of the House. Do you accept that?

Mr Xaso: Chairperson, that may have happened. But I still also do need to state that, especially on that day in particular, there was a lot of disorder, and it is possible that the Speaker may have forgotten that a point of order was raised. Members always know that they can say ‘Hon Speaker, I raised a point of order. Please, rule on that issue.’ But I do not dispute your version.

Adv Ka-Siboto: Yes, and some of the Members of Parliament were asked to withdraw and kicked out of the House for suggesting that the President is a criminal. Do you remember that?

Mr Xaso: Yes, I do remember. And of course they said that after the Speaker had ruled several times on the matter, and they continued to do that.

Adv Ka-Siboto: No, I am saying as soon as they say the President is a criminal, they were asked to withdraw. That is what I am talking about.

Mr Xaso: Yes.

Adv Ka-Siboto: Yes, so in other words, the Speaker had asked them to withdraw making those disparaging remarks against the President, but this particular Member was not asked to withdraw for calling Mr Shivambu a murderer, not so?

Mr Xaso: Of course, that is what you have said, and I do not dispute that.

Adv Ka-Siboto: And let us assume that the Speaker had forgotten because of the ruckus and whatever you are suggesting, he was also called a VBS criminal. Do you recall that?

Mr Xaso: Yeah, I do recall hearing something like that.

Adv Ka-Siboto: And I suppose your answer will be that maybe the Speaker, again, forgot, not so?

Mr Xaso: Well, maybe she did not hear it.

Adv Ka-Siboto: Yes, so it happens, coincidentally, that when my Members are being disparaged the Speaker does not hear or she forgets.

Mr Xaso: Chair, it is just not just members of a certain party. It happens across the floor, but sometimes issues are raised about Members. And there are Members who said on the day [that] the President should go to jail, directly to jail, and the Speaker did not intervene, maybe because she did not hear them because that would have been unparliamentary.

Adv Ka-Siboto: And I am saying to you that there is no evidence of what you are suggesting, that there were other Members who spoke ill of my Members, or rather, my Members spoke ill of other Members and they were not reprimanded, not so?

Mr Xaso: Chair, the video does carry those voices of Members, specifically about the President, saying things about the President, were not ruled out of order. So, of course, in some instances, no names appear, but you hear voices about that. So I accept that on that day, there was a lot of exchange of words. And indeed, in some instances, the points were ruled on.

Adv Ka-Siboto: And that is what I am saying, you are getting in the realm of speculation. If you do not know who said what, then let us rather not have that conversation, not so?

Mr Xaso: Chair, the point is that the video does carry voices of Hon Members saying things. And that is all I am saying. I am not saying that we must prove or disprove that. I am just saying what I have heard in the video.

Adv Ka-Siboto: That is why I am saying let us make this Committee’s job easier by not speculating if you do not have the facts to underpin what you are saying. If you do not know who said what, then we are getting into a realm of speculation. Let us rather deal with the facts. I am saying as a matter of fact, there is not a Member of mind or of the EFF who had said something disparaging of the President and was not ruled upon by the Speaker – no one that you know of, not so?

Mr Xaso: I cannot recall, Chair.

Adv Ka-Siboto: Yes, and I am saying to you the difference with that is that no one brought that to the Speaker’s attention, but in relation to Mr Shivambu being called a murderer and in regards to him being called a VBS looter, that was brought to the Speaker’s attention, not so?

Mr Xaso: That is what you have said, Chair.

Adv Ka-Siboto: Yes, so those are distinct facts all together. And coincidentally, you speculate as to why the Speaker did not rule on it. And I am saying to you that it does not matter, because yet again, there is that inconsistent application of the same rule, because when they called the President a criminal they were asked to withdraw, and if they did not, they were chased outside of the House, not so?

Mr Xaso: Well, they called the President a criminal. Speaker ruled on the matter, and when they refused to abide by the Speaker’s ruling they were chased outside of the House.

Adv Ka-Siboto: Yes, and the only reason the Members that called Mr Shivambu a murderer and VBS looter were not in front of this Committee is because the Speaker did not rule on them, so that is the only protection they have for not being here, not so?

Mr Xaso: No, I do not agree with that.

Adv Ka-Siboto: And the reason they would not have refused to leave the House was because the Speaker did not even ask them to leave the House, not so?

Mr Xaso: Yeah, if they were not asked to leave the House, why would they leave the House?

Adv Ka-Siboto: Yes, and the only reason the ones that called the President a criminal are in front of this Committee and refused to leave was because they were asked to leave, not so?

Mr Xaso: They were asked to leave and they breached the Rules by disregarding the authority of the chair, by reflecting negatively on another Member and they were asked to leave.

Adv Ka-Siboto: And had it been that the Speaker did not ask them to withdraw and then kick them out – had she not done so, then they would not have been in this House, the same way the Members that called Mr Shivambu a criminal and murderer are not here, not so?

Mr Xaso: They would not have been here if they had not disregarded the authority of the chair.

Adv Ka-Siboto: And if the chairperson had not asked them to withdraw and they refused, they would not have been here, not so?

Mr Xaso: All they needed to do was to abide by the chair’s ruling, and if they had issues, report that matter to the Rules Committee to be dealt with. Members do not have the right, in terms of the Rules, to disregard the authority of the chair.

Adv Ka-Siboto: Yes, but they are here because the Speaker made that ruling, not so?

Mr Xaso: They are here because they breached the Rules.

Adv Ka-Siboto: And the ones that made disparaging remarks about Mr Shivambu are not here because the Speaker did not ask them to withdraw, not so?

Mr Xaso: Because there was no ruling on the matter and they did not disfigure the authority of the chair.

Adv Ka-Siboto: Yes. Is it unparliamentary to call someone a murderer in the House?

Mr Xaso: It is unparliamentary.

Adv Ka-Siboto: Is it unparliamentary to call someone a VBS looter in the House?

Mr Xaso: It is unparliamentary.

Adv Ka-Siboto: Yes. And of course, we accepted earlier that the Speaker would have made rulings or no further points of order, but some Members were allowed to speak – and I was going through the list of persons that had done so. I do not want to read the whole list because it is a long list, and some of them speak not less than one time, not less than two times rather. Some raise points of orders three, four, five times. These people are non-EFF members. Do you accept that?

Mr Xaso: Chair, indeed the Members who are before this Committee are EFF members, but again, I need to state the point that where Speaker had said ‘No point of order’ and the Member rises on a point of order, and the Speaker says ‘Please, sit down’ and the Member refuses to sit down after intervention of the Speaker, of course the Member would be disregarding the authority of the chair.

Adv Ka-Siboto: Yes. Chairperson, I do not know at what point you would like us to take the tea adjournment? I realise that I have got fifty minutes left. I do not know whether you want us to take that tea adjournment now or if I should proceed until I am done?

Chairperson: Our team time is in ten minutes Adv Ka-Siboto.

Adv Ka-Siboto: My apologies. I am more familiar with the court; it is usually quarter past eleven. Thank you, Chairperson. I will proceed then. Let us then deal with the evidence or the charges against Ntlangwini MP and Matumba MP. Do you accept… I do not know if the video is ready or not but if you have a dispute about the version I am putting to you, I am happy for the video to be played.

Mr Xaso: Yes.

Adv Ka-Siboto: Ntlangwini was asked to leave the House by the Speaker, not so?

Mr Xaso: Yes.

Adv Ka-Siboto: Because she did not withdraw the statement that the Speaker said she must withdraw. Do you recall?

Mr Xaso: That is correct, Chairperson.

Adv Ka-Siboto: She then asked – Ntlangwini then asked, ‘What must I withdraw, Speaker?’ Do you accept that?

Mr Xaso: Yes.

Adv Ka-Siboto: And the Speaker says: ‘That which you said’, not so?

Mr Xaso: Yes.

Adv Ka-Siboto: And my client’s version is that the Speaker did not hear her say what she is asking her to withdraw. Do you have any answer to that?

Mr Xaso: What the Hon Member was very audible.

Adv Ka-Siboto: Yes.

Mr Xaso: I do not know why the Speaker would not have heard it. It is her version, but it was audible for anyone to hear.

Adv Ka-Siboto: Yes, and you are suggesting it is the same position with Mente MP, where the Speaker asked her to withdraw something she did not hear. Do you have an answer to that?

Mr Xaso: No, Speaker heard what the Hon Member – Hon Ntlangwini – said because she was speaking through the mic. The circumstances are completely different. Hon Mente, without getting into the detail of that case, firstly, did not speak through the mic, and therefore it could be accepted that people did not hear what she was saying. Hon Ntlangwini was speaking through the mic and she was very loud [and] audible for anyone to hear. So I have no reason to think that the Speaker did not hear her. The Hon Member knew what she had said.

Adv Ka-Siboto: Does the Speaker hear everyone who is speaking through the mic?

Mr Xaso: Generally, but not in all instances because sometimes there is a lot of noise in the House that would make it difficult for her to hear.

Adv Ka-Siboto: So it is possible for the Speaker to not hear someone speaking through the mic?

Mr Xaso: No, it is possible but in that instance it was very audible – it was at the very start of the proceedings, so the room was still very quiet.

Adv Ka-Siboto: And the Speaker’s response is that which you said. And then she is asked to leave the House?

Mr Xaso: Yes.

Adv Ka-Siboto: Tell us what Ntlangwini said.

Mr Xaso: [She] said something to the effect of we can go to check the Hansard about the President being a criminal, a money launderer… If you allow me, Chair, to go through this? If it is not in the Hansard then it is in the video. I am just looking for Hon Ntlangwini’s…

Adv Ka-Siboto: We will get to the video, because I want to test you on something else around Ntlangwini. Maybe let us proceed for the present moment.

Mr Xaso: Alright, we may proceed, Chair, with your permission.

Adv Ka-Siboto: The Speaker then calls the Sergeant-at-Arms to remove Matumba MP as well, do you recall?

Mr Xaso: Yes, I do recall, Chairperson.

Adv Ka-Siboto: And she had never been asked by the Speaker. Do you accept that?

Mr Xaso: Matumba MP, I seem to recall – I would be happy for us to play the video – that she had been asked. But I would like to verify that.

Adv Ka-Siboto: If I am correct that she had never been asked then that is a breach of Rule 73(1), is it not?

Mr Xaso: Chairperson, as I said, I would need to watch the video again because I have watched it but not that specific instance. I would only like to answer that question at that point.

Adv Ka-Siboto: I am saying to you – if I am correct, I am putting a version to you. I am happy for you to come with a version and proof of the opposite. If Matumba MP was not asked to leave, that was a breach of Rule 73(1), is it not?

Mr Xaso: Chair, I cannot state that without having checked it.

Adv Ka-Siboto: Let me ask a different question. If a Member of the House is asked to leave, or rather, if a Member of the House is removed from the House without being asked to leave, and the Sergeant-at-Arms is deployed to ask them to leave without being, first, asked to leave themselves. That is a breach of [Rule] 73(1). Forget Ntlangwini, forget Matumba MP, I am saying as a matter of law.

Mr Xaso: Chair, we cannot generalise that point because on the virtual platform – I just want to contextualise my point – Members are removed from the Chamber because it is a virtual platform, they are not asked to leave the Chamber. So even in that instance, of course, Rule 70, that part of Rule 70, would not have been done. But, of course, that can be explained if there is an explanation. Thank you, Chair.

Adv Ka-Siboto: And if you had not been asked to leave or to be removed from the House then you cannot be charged for failure to leave the House, not so?

Mr Xaso: Chair, you can be charged but you can argue your case to mitigate the point and the correct structure may decide that your submission is acceptable or not acceptable.

Adv Ka-Siboto: Well, on your logic then anyone on the street can be charged for failure to obey the Speaker even though they were not in the House, but, of course, they can argue their case. Is that your submission?

Mr Xaso: It is not my submission, Chair. What I am saying is that the Committee, before charging the Hon Members, looked at all the facts before them and they deemed it necessary to charge the Member. And of course, if there are different facts, like it was the case with Hon Mkhonto then the Committee may decide that there is no basis for us to charge this Member and the Member is not guilty. That is my submission.

Adv Ka-Siboto: We are back here again, Mr Xaso. You are speculating about facts you do not know. When I ask you questions, and I am asking you to speculate, you are quick to tell me ‘I will not speculate because I do not know.’ How do you know that everyone who was involved in this process looked at the facts, when I have shown you that literally everyone who was involved in this process did not know that Mkhonto was not in the House? How then do you then make a firm assertion that all of them looked at the facts? How do you know that?

Mr Xaso: Chairperson, I have made my submission. That is my version, that the Members looked at the facts. I mean, if a mistake was made, like it was the case with Hon Mkhonto, that was a genuine mistake. But my version is that I believe the structures applied themselves, looked at the facts, and of course, this Committee, having loaded all those facts and these facts here, will make the assessment and make a decision.

Adv Ka-Siboto: Were you present when everyone who sits in all those structures considered this issue?

Mr Xaso: I was not present when this Committee considered the issues.

Adv Ka-Siboto: Not just this Committee, all the structures that were involved.

Mr Xaso: Are you asking if I was present?

Adv Ka-Siboto: Yes, including the Rules Committee.

Mr Xaso: Yes, I was present.

Adv Ka-Siboto: No, I am saying when everyone who was involved in this process considered the issue, were you present?

Mr Xaso: No, I am talking about the structure. When the structure considered the issue, I was present.

Adv Ka-Siboto: I am asking the question again, Mr Xaso. When everyone who is involved in all the processes that led up to here considered these issues, were you present?

Mr Xaso: Chair, maybe I should seek clarity on this. When you say everyone, what do you mean? Do you mean individual Members in their private spaces or do you mean individual Members coming together? I know that Mr Ka-Siboto asked that I should not ask him questions, but I just need clarity on this one.

Adv Ka-Siboto: I am simply saying you cannot assert that everyone who was involved in the process that led up to here looked at all the facts. I am just simply saying you cannot make that positive assertion because you do not know for a fact.

Mr Xaso: Okay, maybe, Chair, I should modify my response and say that every Committee that considered the matter looked at the facts. Maybe I should just remove ‘all of the facts’ in my submission. Thanks.

Adv Ka-Siboto: I am going to ask again that you take a position so I know how to cross-examine you. Are you prepared to make speculations or are you not prepared to make speculations?

Mr Xaso: Chair, I am not making speculations, but I can indicate what I think something should be or should have been.

Adv Ka-Siboto: And when I invite you to do the same, will you then grant me the courtesy of doing the same thing?

Mr Xaso: Chair, it will depend on the question and I will respond in a manner that I deem appropriate at that point.

Adv Ka-Siboto: Matumba’s defence will be that they were not asked to leave the House, and therefore they cannot have breached the order of the Speaker by refusing to leave the House. Do you have a response?

Mr Xaso: That would be his version, Chairperson.

Chairperson: Adv Ka-Siboto, as we step onto Ms Matumba’s version can we stop here for tea? It is 11.30. Fifteen minutes and then we will resume at 11:45.

Adv Ka-Siboto: Thank you, Chair.

Chairperson: Can I also ask the staff that when we come back that they indicate the time you still have for cross-examination, so that we are on par. Hon Members, let us stop here for a 15 minute tea break. We are resuming at quarter to twelve. Thank you.

The Committee adjourned for a fifteen minute tea break.

Chairperson: Hon Members, are we back?

Adv Ka-Siboto: We are back at the physical House, Chair, both legal teams and the witness.

Chairperson: Can we get settled as we resume? I indicated earlier on that the staff should help us with tracking the time. Can I just check as to how far?

Committee Secretary: Hello, Chair. The time will end at half past eleven – 45 minutes.

Chairperson: No, I just want to check how much time Adv Ka-Siboto still has so that as and when we go along we should be able to track the time he still has.

Committee Secretary: Thanks, Chair. He has 45 minutes left.

Chairperson: Okay, that suffices. Can we resume, Adv Ka-Siboto? You have the platform. Can you continue?

Adv Ka-Siboto: Thank you, Dr Chair. Mr Xaso, before I proceed with the examination I was conducting earlier, I just want to wrap up a point. You had said that in preparation for this hearing you would have watched the video, not so?

Mr Xaso: Yes, Chairperson, I have.

Adv Ka-Siboto: You would have also read the Hansard?

Mr Xaso: To the extent possible, Chair, I have.

Adv Ka-Siboto: You had earlier confirmed that it is unparliamentary to refer to a Member of the House as a murderer in the House, not so?

Mr Xaso: That is correct.

Adv Ka-Siboto: You had also said it is unparliamentary for them to be called a VBS looter in the House, not so?

Mr Xaso: That is correct, Chair.

Adv Ka-Siboto: You had earlier testified that you advise some structures, including the Speaker, not so?

Mr Xaso: Yes, Chair.

Adv Ka-Siboto: When you viewed the footage and you read the Hansard and you saw that it was brought to the Speaker’s attention that Mr Shivambu was called a VBS looter and a murderer, did you advise anyone that that was unparliamentary?

Mr Xaso: No, Chair, I did not.

Adv Ka-Siboto: You had also testified… By the way, why?

Mr Xaso: Chair, Members say many things in the Chamber, and some are ruled on, others are not ruled on. We do not usually go back to those issues unless a matter has been raised. It was just part of how business is done.

Adv Ka-Siboto: So you had let unparliamentary conduct go unpunished?

Mr Xaso: It's not a question of letting unparliamentary conduct [go unpunished], Chair. It is a question of the Rules being applied and Members raising points of order, raising their issues. When a matter is raised, or when the Speaker has decided to act on the matter, the matter is then dealt with.

Adv Ka-Siboto: I am suggesting to you there is that bias and inconsistency again. Do you have a response?

Mr Xaso: Chair, I dispute that strongly. There is no bias and there is no inconsistency.

Adv Ka-Siboto: Okay. You had testified earlier that all the various structures and committees would have considered all the facts, not so?

Mr Xaso: I have testified that the structures would have considered aspects before them, of course, within their powers and functions.

Adv Ka-Siboto: What that means is they would have read the Hansard and watched the video?

Mr Xaso: That means that they would have satisfied themselves with what is before them. In some instances, they watch the video in other instance, they do not watch the video, but they will consider the report and if they think that they need to verify things they will do that.

Adv Ka-Siboto: Did, to your knowledge any of them, the individual members manning all those structures ever bring to the attention of anyone that there was unparliamentary conduct in reference to Mr Shivambu?

Mr Xaso: Not that I recall, Chairperson.

Adv Ka-Siboto: And again, there is that bias and inconsistency I suggest.

Mr Xaso: There is no such, Chair. As I say, Chair, that day and even on other days, Members do unfortunately say things to each other, and some of those matters do find themselves before the Speaker, others are not brought before the Speaker – and from both sides, by the way. So I would not talk about bias or inconsistency; it is just how parliamentary processes go.

Adv Ka-Siboto: If the conduct is unparliamentary, they should have been charged, not so?

Mr Xaso: If the conduct is unparliamentary the matter should have been raised. If it was raised and not attended to, the Members should have been appealed. And of course, it will be taken through the various structures. Charging Members is not automatic. Remember, if a Member has done something in the House, the Speaker rules and a lot of matters end at that point. So charging is way down the line when some structures have considered the matter, and they thought it needed to be considered for charging. Thanks.

Adv Ka-Siboto: This is the difficulty I am having, Mr Xaso. You are comfortable saying, well, if anything was wrong, then it should have been brought to the Speaker's attention or someone else. Yet the charged Members are not charged because someone brought it to the Speaker's attention: the Speaker made that ruling. I am not concerned about the rights people have. I am concerned about the conduct of the Speaker. That is what I am impugning. I am saying regardless of the rights people have, the Speaker in those instances applied the rule inconsistently.

Mr Xaso: Chair, that is Mr Ka-Siboto’s version. I do not agree with it. All I know is that these Members that are before us were asked to do certain things or were removed from the House, and that is why we find ourselves here today.

Adv Ka-Siboto: Chairperson, sorry, I forgot. I was approached by the Initiator and her team during the tea adjournment. And I think they want to address the Chair in relation to Mkhonto MP. Apologies for that, Chair.

Chairperson: Alright.

Adv Magona-Dano: Thank you, Chair. Chair, having consulted with my team and taken note of the charges against Mkhonto MP, and now the facts that we now know, we found that it would be unfair to proceed with the matter against her. We are satisfied with the allegations made by Mr Ka-Siboto. Having looked at the evidence, we would like to place on record that we will not be proceeding any further with her. Why I am putting it in that fashion is because she has already pleaded before you, and it is for this Committee to find her not guilty. We are placing it right now on record that we will not be asking for any conviction of guilt against her so that she does not even have to be derailed and kept in this matter watching the proceedings. So in that regard, we are not proceeding any further with her in this matter. Is that clear, Chair?

Chairperson: Thanks, Adv Magona-Dano. No, it is clear. I am just going to put it to the Committee Members to have a say on that one, because the main thing I am hearing from you is that of Ms Mkhonto being around, hanging around, having to attend these hearings whilst you are not proceeding with her conviction. Committee Members? It is the Committee that takes a decision on that one, so we know whether to release her or not. Hon Mlenzana, followed by Hon Xaba.

Mr Z Mlenzana (ANC): Greetings to you, Chairperson. Also greetings to the legal teams from both sides and Hon Members on the platform. Chair, I rise here to move that the affected Member, Mkhonto, be released because the explanation is very clear. It cannot be that we harp on something that has already been cleared. Thanks, Chairperson.

Chairperson: Thanks, Hon Mlenzana. Hon Xaba?

Mr N Xaba (ANC): Thanks, Chair. Greetings to you, Chair and the legal teams present here and other Members listening. I rise to second Hon Mlenzana on the matter. I think it has been made clear to us. Indeed, as a Committee I second Hon Mlenzana that the Member be released. Thank you, Chair.

Chairperson: Thanks, Hon Xaba. Hon Members, there has been a secondment that at this point we release Ms Mkhonto from the hearings. Is there any different or dissenting view? None. Can I then request that Hon Mkhonto be released? You can leave the platform, Hon Mkhonto, at this point. Thanks for the Hon Members and our legal teams. We continue with you, Adv Ka-Siboto. Let us continue the cross-examination. They will not count the minutes we used to handle this matter. Thanks.

Adv Ka-Siboto: Thank you, thank you, Chairperson. If I could then round off with you, Mr Xaso, the evidence in relation to Matumba MP. I was putting a proposition to you that it is incompetent to charge someone for failing to leave the House if they were never asked to leave the House. Do you have a response?

Mr Xaso: My response is that the committee will answer that – it is not for me, because the Committee has considered all the facts before charging a Member.

Adv Ka-Siboto: If I put a version to a factual one, you cannot dispute it in open air by simply saying I do not accept. So to the extent you do not agree with the factual version I am giving you, I would like you to take me to where it proves otherwise. If I could remind you that, firstly, it is this fact, and the second is in relation to Mr Tambo. I had said to you that it would have been impossible for the Sergeant-at-Arms came from to reach Chirwa MP without Tambo MP standing, do you perhaps think then we should pause at this point so you can disprove those two facts?

Mr Xaso: Chairperson, I thought that I had addressed the issue of Hon Tambo, that even if the Sergeant-at-Arms could not proceed without him standing, Hon Tambo only needed to make way for the Sergeant-at-Arms to proceed to Hon Chirwa. So in that instance I would not even insist on viewing the video in that regard. If you see there was no space to move to, maybe there was not, but Hon Tambo had to make way for the Member to be removed from the Chamber. On Hon Matumba, I mean, I would be happy to watch the video, if Mr Ka-Siboto agrees, and check where the line is because it may take time to get to the point and check that part exactly, because the Hansard still has gaps there. And I would still like to verify that in the video. Thank you, Chair. But I am happy to proceed and then the matter be checked later on, because there are also two other questions that Mr Ka-Siboto asked me about what Hon Ntlangwini had said, and I would like to respond to that at the right time, when he allows me. Thank you, Chair.

Adv Ka-Siboto: Thank you. And you can then accept that I must insist that until you prove otherwise, the factual claim I am making we can take it to be fact.

Mr Xaso: That is the version of Mr Ka-Siboto. Thank you, Chair.

Adv Ka-Siboto: Let us then move to the next Member. At fifty-two minutes, thirteen seconds of the video of the 9th of June 2022, Tambo MP addresses the Speaker on a point of order that she is only allowing ANC members to raise points of order. I am happy to take you to the video if you have got qualms with this version I am putting to you, at fifty-two minutes, thirteen seconds.

Mr Xaso: Do you wish that I respond?

Adv Ka-Siboto: Yes, you said you would have watched the video many times.

Mr Xaso: Yes. No, he had said that.

Adv Ka-Siboto: Yes, and it is consistent with what I am suggesting to you that there has been this duplication of the Rules by the Speaker. You had given a version that there is no such a thing despite the facts that I am putting to you. Why this is important, that Tambo raises this, is because I was doing an exercise earlier with you where I had said to you the Speaker would say no point of order and then allow Members of Parliament to raise points of order. And I made reference to Hon Dlakude MP, for example, Hadebe MP, another example. And if you have regard to the 10th of June 2022, at twenty-six minutes, twelve seconds of that video, which is page fourteen of the bundle that contains the Hansard. The Speaker makes the first ruling and she informs the Members of Parliament that she will not be taking any points of order. In less than two minutes after having said that, Dlakude MP raises a point of order, which is allowed by the Speaker. Do you accept that?

Mr Xaso: Chair, it is possible that happened. But I do want to state, Chair, with your permission, that it is incorrect that the Speaker only recognised members of the ANC during those proceedings. There was an instance where the Hon Speaker called various members of the EFF and they chose not to raise points of order because Hon Malema had wanted to speak. And he kept saying: ‘Let the President speak.’ And it was various Members, Hon Maotwe, Hon Mkhalipi, Hon Mente. So I dispute the version that on the days in question, the Speaker may have just chosen members of ANC to raise points of order. Hon Mazzone was recognised to raise a point of order, for instance, who is not a member of the ANC. So that is really my submission on that point, Chair. Thank you.

Adv Ka-Siboto: The difficulty with this, Mr Xaso, is that regardless of how Members of Parliament or the Speaker sees Members of the House as ANC members and EFF members and ATM (African Transformation Movement) members, the law does not see Members as a collective in Parliament, they stand and represent as individuals. Do you accept that?

Mr Xaso: Yes, I do accept it, Chair.

Adv Ka-Siboto: If you do accept that it does not matter who belongs to what party, strictly speaking, not so?

Mr Xaso: Chair, it does not. Just to clarify, I am responding to the point that Hon Tambo said only ANC members were being recognised. I am saying it is factually incorrect. Thank you, Chair.

Adv Ka-Siboto: Well, it is not incorrect that she recognised ANC members, including Dlakude MP, two minutes after she ruled that there were no more points of order. That is not factually incorrect.

Mr Xaso: No, that is not… I mean, that point specifically. But my point is that on the days in question, it would not be true to say that the Speaker was only recognising ANC members.

Adv Ka-Siboto: And the point I was simply making then is for the Speaker to rule that ‘Sit down. Do not speak, because I said no points of order’, regardless of who that is once she says that it is inconsistent for her, again, to then say ‘You may speak, despite me having said no points of order’. Can you accept that as a matter of principle?

Mr Xaso: Well, Speaker may have said you may speak. I do not know what she considered for her to do that. You are saying it is inconsistent, but, of course, that is your version; that Speaker may have recognised the people. How you characterised that is not my version, it is your version.

Adv Ka-Siboto: I am interested in your version. It is quite an elementary question, really. And typically, what would have happened if we were in a different structure, I would have made a submission that you are a witness who is not to be considered credible and biased because you are failing to answer very elementary questions, because you know the consequence of that answer. Mr Xaso, with respect, you are a lawyer, and a seasoned one at that. You have been in this House, assisting this House for as long as you have, how can you have difficulties with a simple proposition that it is inconsistent to say to one person ‘You may speak, despite me ruling, no points of order’, and at the same time, say to the other one, ‘You may not speak, because I said no points of order.’ How are you having difficulties with just conceding that very elementary proposition? How is that not inconsistency?

Mr Xaso: Chair… Oh, sorry, Mr Ka-Siboto, I thought you had finished.

Adv Ka-Siboto: No problem.

Mr Xaso: I think the point was made earlier at some point that the person asking questions should not put words in the witness’ mouth. And Mr Ka-Siboto says it is inconsistent. And of course, my version would be that the situations were treated differently. What words you use is Mr Ka-Siboto’s election, I choose not to use that word. But of course, the instances were treated differently. That is my version.

Adv Ka-Siboto: and I will suggest to you that treating situations differently is the very definitional nature of inconsistency.

Mr Xaso: I have nothing to say on that, Chair.

Adv Ka-Siboto: Let us deal with the next Member. I am putting it to you that at 03:07:00 of the proceedings of the 10th of June, where Montwedi MP asked the Speaker if she could address the person that is making gestures at them. And unprovoked, I would suggest, the Speaker asked the Member to leave. Do you contest that factual claim?

Mr Xaso: Regarding Hon Motwedi?

Adv Ka-Siboto: Montwedi.

Mr Xaso: Montwedi, sorry.

Adv Ka-Siboto: It is at 03:07:00 of the video of the 10th of June.

Mr Xaso: My recollection, Chair, is that the Member was disregarding the authority of the chair. And of course, I do not dispute how you put it that the Speaker’s view was that the Member was in disregard of the authority and was asked to leave.

Adv Ka-Siboto: And what is interesting is that you had been at pains to say, ‘Well, if you have got an issue with what is happening in the House, you must raise that with the Speaker.’ Do you recall that?

Mr Xaso: Yes, I have raised that. I have said that. And of course, I will always say that…

Adv Ka-Siboto: And then Montwedi… My apologies, sorry.

Mr Xaso: No problem.

Adv Ka-Siboto: And Montwedi MP does exactly that. The Member says there is someone who is making gestures at us in Parliament that are unbecoming and unparliamentary. The Speaker takes the view that that is an obstructive point of order and evicts the Member from the House. And you said you have got nothing to prove what I am saying to you? How then do you square up this version with your claim that a proper cause to raise issues with what is happening in Parliament is to raise them with the Speaker? How do you square up the two?

Mr Xaso: Chair, can I say this – and you have said that I must not emphasise… Okay, sorry, I want to put it in my words. But I want to say that where a Member feels unfairly treated, like you suggest about Hon Montwedi, the Rules are very clear: write to the Speaker for that matter to be processed. Maybe if that happened upon the Speaker’s reflection, the Member had a point, the process could have been different. But that is really what is available to Hon Members. So it is not like Members do not have options about these matters.

Adv Ka-Siboto: I accept that. I have accepted that, and I will always accept that. And I have asked that you do not answer in those terms because I know that and I accept it. There is no dispute there. It is an answer I have been accepting all along. I am saying to you the right of the Members is not the issue here. I am testing with you whether it is consistent and fair of the Speaker to ask someone to leave the House, if your version is when someone has an issue with the process of the House, they must raise it with the Speaker. So are you saying in those circumstances the Speaker applied the Rules fairly? Forget the rights. I am simply asking, did the Speaker apply the Rules fairly?

Mr Xaso: In the Speaker’s determination it was fair because at that point, the Speaker was not expecting people to take points of order and the Speaker ruled.

Adv Ka-Siboto: Yes, and in the same way, she was not taking points of order earlier, she took them nonetheless, not so?

Mr Xaso: We have dealt with that, Chairperson.

Adv Ka-Siboto: Yes. And I am saying again, there is the inconsistency by the Speaker again, not so?

Mr Xaso: That is the version of Mr Ka-Siboto, Chairperson.

Adv Ka-Siboto: Yes. Well, let us use your version. She dealt with the situation differently.

Mr Xaso: Yes.

Adv Ka-Siboto: Yes. Montwedi MP was not even warned before being asked to leave, not so?

Mr Xaso: Yes.

Adv Ka-Siboto: Is that a yes?

Mr Xaso: Yes.

Adv Ka-Siboto: Yet again, she deals with the same facts differently.

Mr Xaso: Chair, emphasising the point that there is no requirement for warnings in the Rules. So she dealt with the matter in the manner she deemed appropriate at the time. And of course, Mr Montwedi is part of these proceedings and he will state those facts before the Committee. Of course, I am stating the obvious. Thank you, Chair.

Adv Ka-Siboto: Let us go back to the 9th of June. Please, just bear with me. And I just want to make this point to illustrate what I was suggesting to you. Of course, individual Members of Parliament represent themselves or rather stand as individuals, so they cannot be collective punishment of party members. We have accepted that already, correct?

Mr Xaso: Chair, there cannot be collective punishment on the basis that they are party members, but if Members commit the same act, or [their] acts warrant action by the Speaker and they happen to belong in the same party, the Speaker will deal with that matter accordingly.

Adv Ka-Siboto: Yes. And with that being said, my clients' defence is that they are treated unfairly because they are EFF members, and she treats them differently from ANC members. Do you have an answer to that?

Mr Xaso: I will say no, Chairperson. That is not my view on the matter; what I know is that Members who breach the Rules are treated in the manner that the Rules dictate. And that was my submission.

Adv Ka-Siboto: And this is quite clear in, not just the sitting but the other ones we have had before. And in relation to this one specifically, I will just draw an anecdote to illustrate this point. The Speaker had ruled – at this point that I am going to talk about – that she does not take any points of order. And I have made a reference to when Dlakude MP had raised a point of order and it was allowed on the 10th. We are back on the 9th now, so if you have regard to page 26 of the bundle and at 00:56:15 of the video, what you will see is this: the Speaker had ruled no points of order. At 00:56:15, Dlakude MP raised a point of order and it was allowed. At 00:59:46, Tafeni of the EFF, raised a point of order and she is told to sit down by the Speaker. Less than two minutes thereafter, at 01:00:22 that appears on page 290 Papo MP of the ANC raised a point of order and it is allowed. At 01:01:40, Tambo of the EFF raises a point of order; it is not allowed. At 01:02:00, right after Tambo of the EFF raises a point of order, Mr Dyantyi of the ANC raises a point of order and it is allowed. At 01:08:27 Mafanya of the EFF raises a point of order and it is not allowed. We can accept there that the Speaker, and I want to use your terms, dealt with points of order differently in this anecdote I have given you, not so?

Mr Xaso: Chair, I will answer the question Mr Ka-Siboto asks. We should also consider what was carried in those points of order that he has mentioned. For instance, you would take Hon Tafeni. Hon Tafeni was basically back at what the Speaker had ruled out of order. And then the Speaker says: “Hon Member, sit down. Sit down.” And she says something like ‘Chairperson, this person is still being investigated, therefore another person must come to appear before the House’, and the Speaker says ‘Sit down, Hon Tafeni’, and then she continues, even after the Speaker said she should sit down. That is page 283.

Adv Ka-Siboto: Sorry, what page are you on?

Mr Xaso: Sorry. Page 209, at the bottom. The Speaker says ‘Hon Member, sit down. Sit down.’ And then the Member does not sit down. And then she says – I am translating here loosely – ‘There has been an investigation about this person, and you want to give this person the opportunity to speak. Please, give us another person to do this.’ And of course, we move on. You raised the issue of Hon Papo, which I do not dispute. And Hon Papo spoke again. Of course, Hon Tambo speaks, and then he says “I have raised my hand. You are treating this House as if it is only physical. You said that virtual is a part of the House. Why are we now being muted?” Then the Speaker says: ‘Table, will you please make sure that you mute everyone on a point of order.” And then Hon Mkhalipi comes in and says – remember, at that point Hon Tambo was not removed – “But how are we going to speak when you mute?” And then Hon Tambo comes back [and says] “On a point of order. You are excluding the majority of the House, which are on the virtual platform” and he was not removed for saying that. And then Hon Dyantyi comes in, and Hon Matheka says “Our hands are up”, and Hon Dyantyi speaks. I will conclude now. Hon Mafanya then comes in and says “That is plain intimidation. Whether you say you see, it is intimidation.” And then the Speaker rules on them. In fact, at that point she did not remove them. She just said to them what the Rules say and what the Constitutional Court had said. So I did not dispute that Hon Dlakude, or Hon Dyantyi or Hon Papo. But it may also be that the Speaker considered the content of what the Hon Members were raising, which were still within the parameters of the Rules. Thank you, Chair.

Adv Ka-Siboto: I am not too sure what the point of that exercise was, because all I suggested to you was EFF members were not recognised. In other words, they were not given the platform to speak. As to whether they spoke or not is not where I am. I am simply saying the Speaker did not recognise those EFF members and the speaker recognised the ANC members. That is all I am saying.

Mr Xaso: Chairperson, Members spoke without being recognised, which is unparliamentary, to start off with. And of course, ANC members were recognised, or the members who happened to be ANC were recognised.

Adv Ka-Siboto: Yes, again, she dealt with the same situation differently, where she allows others to speak and does not allow others to speak.

Mr Xaso: Chair, I have made the point already but I will repeat it, there are various times where Members of various parties are allowed to speak in the House. So a generalised approach that says the Speaker allowed only ANC members to speak is incorrect, because that was not the case in the House. Thank you, Chair.

Adv Ka-Siboto: Federation. And I am saying that is why some of my clients who are in front of this Committee charged, they are here in this House, having been put in that position by the Speaker’s inconsistent application of the Rules. And I suppose your answer to that is you do not accept that?

Mr Xaso: My answer to that is that the Members will have an opportunity to state their case before this Committee, which we have started to do. Yeah, that is my version.

Adv Ka-Siboto: And had they been treated the same way as other Members of Parliament, they would not have gotten to a point where they have to be kicked out for failing to respect the no point of order ruling of the Speaker, not so?

Mr Xaso: Had the Members abided by the rulings of the chair and when they were not happy, followed the Rules – Rule 92 – and raised their concerns, they would not be here.

Adv Ka-Siboto: And the reason they persisted asking for points of order is because when the Speaker makes the ruling that there should be no points of order, and then continues to take points of order, in their subjective minds, then clearly points of orders are allowed. Do you have difficulties with that reasoning?

Mr Xaso: That is their version, Chair. I have no comment on that.

Adv Ka-Siboto: And if they spoke, despite the Speaker’s earlier ruling that no points of order, and then other Members are allowed to speak, that again, is the inconsistency and the bias, not so?

Mr Xaso: This is the submission of Mr Ka-Siboto, Chair.

Adv Ka-Siboto: And Hon Tafeni MP had raised the point that you are dealing with now, that Members of the virtual platform were muted. Do you recall that?

Mr Xaso: Yes, I do recall.

Adv Ka-Siboto: Yes, and then Tafeni is being told to leave for simply saying that, not so?

Mr Xaso: Hon Tafeni was asked to leave. That was not the only thing she said. She had said certain things before.

Adv Ka-Siboto: And Tafeni MP had never been asked to leave by the Speaker, not so?

Mr Xaso: Tafeni MP, Chairperson, I must state that there are two things that happened with Tafeni MP. Tafeni MP initially said ‘I am not going to leave.’ Of course, the Sergeant-at-Arms was next to her. And then the Speaker later on said… The Sergeant-at-Arms then goes, and the Speaker says ‘Please remove Hon Tafeni’. It appears, Chair – of course, I could not hear, I must say – in the video the Speaker says ‘Leave’. The Speaker may have said that, maybe not through the mic. But if you say she did not say that, I will not dispute that. But Hon Tafeni seems to have understood that she was being asked to leave the Chamber on that day, before the Sergeant-at-Arms was sent to her to leave the Chamber. Thank you, Chair.

Adv Ka-Siboto: Well, I do not want to speculate for Hon Tafeni. When they get the opportunity they will probably come and give their version.

Mr Xaso: Well, Hon Tafeni, Chair, is not a Member of the National Assembly anymore, but I get your point.

Adv Ka-Siboto: Well, I am saying if it comes to that there is a dispute of fact around what happens because remember, I am not dealing with individual Members for the sake of individual Members. I am trying to show the inconsistent application of the rule by the Speaker towards people who are not even members of the National Assembly. That is the point I am simply trying to make.

Mr Xaso: I hear that, Chair.

Adv Ka-Siboto: And if you accept that you have nothing to disprove my version that Tafeni MP was never asked to leave, and only the Sergeant-at-Arms was called, again the Speaker dealt with the rule and the situation differently because with some Members she had asked them to leave first before she invoked the Sergeant-at-Arms services.

Mr Xaso: Chairperson, my version of Hon Tafeni is that the Member seems to have understood to have been asked to leave, because she says I am not going to leave. And of course, the Sergeant-at-Arms is sent to the Member, again, for him to remove the Member. But if the Member would say ‘I was not asked to leave’, I would not dispute that because I did not hear that instruction either.

Adv Ka-Siboto: There is no such a recordal in the video or the Hansard of Tafeni being asked to leave. That is what I am saying to you.

Mr Xaso: Yes, I note that, Chair.

Adv Ka-Siboto: Yes, let us talk about Mafanya MP’s situation. The Speaker asks Mafanya to leave the House for failure to regard the ruling of the chair. Do you recall that?

Mr Xaso: Yes, Chairperson.

Adv Ka-Siboto: There was no ruling of the chair. Do you accept that?

Mr Xaso: Chair, there had been rulings of the chair on remarks by Members. Now, when the Speaker says ‘For disregarding the ruling of the chair’, it did not have to be a statement or remarks or ruling directed specifically to Mr Mafanya. When the Speaker has ruled on a matter, no Member may raise that similar matter. That is really the context of Hon Mafanya’s matter, Chairperson.

Adv Ka-Siboto: You are speculating again. You do not know what ruling the Speaker was talking about, do you?

Mr Xaso: Chair, I know that the procedures in the House is that when a matter has been ruled on, the Speaker, or no other Member may repeat that same matter that has been said. I am just looking for Hon Mafanya’s remarks. My apologies.

Adv Ka-Siboto: And I am saying to you, you do not know what ruling the Speaker is talking about. I am just simply asking a simple question: you do not know what ruling she is talking about?

Mr Xaso: Hon Chairperson, the Speaker at that point had made rulings already in the House. And the Speaker’s view was that Hon Mafanya was disregarding the authority of the chair.

Adv Ka-Siboto: What is the ruling?

Mr Xaso: That is what I am trying to verify, Chair. I am looking through the Hansard. I am happy to find that when the time allows.

Adv Ka-Siboto: It is at 298.

Mr Xaso: I think let us start at 277.

Adv Ka-Siboto: 277?

Mr Xaso: “The two comrades you have just told to go out do not represent themselves. We have a constituency that we have to look after.” I mean, that is challenging the authority of the Speaker already. That is 277. “Yes, our mandate is to have clean governance.” Then Hon Mafanya says: “There are allegations against the President”. The Speaker had ruled on those issues already. So 288 we might be looking at would have been a continuation of things that have happened already, much earlier in the proceedings. Speaker had ruled on these issues. Let me just go 288, Chairperson, with your permission.

Adv Ka-Siboto: I had said 298.

Mr Xaso: 298? My apologies. Hon Mafanya, on 294, says: “That is plain intimidation. Whether you say you see, but it is intimidation.” And then I am going to that. On 297 “It seems you are going to remove all of us. I want to put this thing on record, Madam Speaker. I want to put this thing on record. The country is…” then it is inaudible. Hon Mafanya continues to say: “Because of the actions of the ruling party. They even defended President Zuma”. Then 298, “Hon Mafanya”, the Speaker says, “why are you disregarding the ruling of the chair?’ So I am saying that we should just not start at 298 [as] there was something that happened before 298.

Adv Ka-Siboto: I am going to ask the question again. What ruling is the Speaker talking about?

Mr Xaso: The Speaker had ruled about Members being muted, for instance, among other things. The Speaker had ruled about Members being…

Adv Ka-Siboto: Okay, let us stop there for a second. Sorry, I want to deal with them systematically. I apologise for doing that to you [but] I think it will help the conversation. You are saying the Speaker had spoken or ruled about muting of the mics. Was she talking about the muting of the mics here, when she says why did you disregard the ruling?

Mr Xaso: What I believe the Speaker was dealing with here was Hon Mafanya, who kept raising points of order when the Speaker was busy with other issues.

Adv Ka-Siboto: And I am asking for the third time, what ruling was disregarded? What ruling is the Speaker talking about?

Mr Xaso: Chair, I have tried to explain this. Hon Mafanya, some of the things he had said before this page were challenging the authority of the Speaker; issues of "intimidating us" and that people do not represent themselves here. So it was the Speaker’s determination that this Member is persisting on disregarding the authority of the chair.

Adv Ka-Siboto: I am going to submit later on that the Speaker was of the misapprehension that she had ruled and directed Mafanya MP to act [in] a particular way, when she had not. And there is no evidence here that there was any ruling against Mafanya MP before they were asked to leave the House. Do you have a comment?

Mr Xaso: Chairperson, of course, Mr Ka-Siboto will make that submission. But the fact that I want to make is that when the Speaker has ruled in the House on a matter, it does not mean that the Speaker must rule against Hon Member X for her to say Hon Member X should leave. When a matter has been ruled upon then any other Member who breaches that same issue, the Speaker will rule on that. But your submission, Mr Ka-Siboto, of course you will make to the Committee. But also, Chair, if I may, in case we do not get to this? Even after the Hon Member has been asked to leave, she challenges the Speaker on page 300. “Thank you, Madame Speaker”, Hon Mafanya, “You can bring the bouncers to come and pick me up.” That is the Member saying that to the Speaker. That is out of order [and] it should not be expected in terms of what the Rules expect of Members to do towards the Speaker. Thank you, Chair.

Adv Ka-Siboto: Sorry, which part of the question were you answering there? I got lost a bit.

Mr Xaso: Chair, I am expanding on my point about the Speaker – the issue of how rulings of the Speaker are dealt with when Members are then the Members that were affected by that specific ruling. I was just expanding on the issue to give context. Thank you, Chair.

Adv Ka-Siboto: The same thing happens with Mathulelwa MP, removed without any warning. Do you have a comment on that?

Mr Xaso: Mathulelwa MP? Sorry, I am just checking my notes, Chairperson. Are you talking about the 9th, am I right?

Adv Ka-Siboto: The 9th, yes.

Mr Xaso: The 9th. Mathulelwa MP, I may be confusing the two days but I am happy to correct them later on, comes in after everyone else had been removed from the House and regurgitates the matters that had been ruled on about the conduct of the President and the Speaker rules the Member out. I do not know if you have the page number, Mr Ka-Siboto? My apologies for that.

Adv Ka-Siboto: I am at page 324. And I will just read it for you. What Mathulelwa does at 324 is to raise a point of order. She says: “Hon Speaker, on a point of order”, and says nothing beyond that. The Speaker then says “Hon Member, you have just stepped in and I have just made a ruling that I will not allow anyone to make a point of order, because you have taken an hour.” There she goes again, refusing to hear EFF members’ points of order, simply because she had ruled earlier on that ‘no more points of order’. And then says: “She is not raising anything about the President or anyone for that matter, but our members in the platform are muted.” And then she says “Everybody is muted.” And then she says “Please, unmute them. And then the Speaker says, “Thank you.” And then goes on having conversations about muted Members. And then the Speaker says, “Hon Member, switch off your microphone”. And so on the conversation proceeds. And then she asks her to switch off the microphone again. And then eventually she is evicted for raising the point that Members are muted. Do you now see it?

Mr Xaso: Yeah, I see it. Chair, I think it is important to just emphasise the point that the Rules of the National Assembly (NA) or I guess any other parliament are there to regulate business. You cannot have a situation where the person was charged to govern the House, or should I say to preside over the House, their authority is disregarded. The Speaker had directed that the mics be muted [and] the Member came and insisted on unmuting them. No, that is not right. Members are supposed to give the Speaker or the chair due respect, that is expected of every Member. Members are not there to instruct the chairperson; there are ways to raise issues. Again, if the Hon Member had difficulties with the matter of the mics, he could have raised it in writing as the speaker explained, I think, the following day, where the mics were muted. So that is the context. It is not a question of harshness or anything; Members ought not to challenge the authority of the Speaker. And there are ways to raise concerns against the Speaker. In fact, the Rules even say that rulings of the chair may not be challenged in the House. I know I may have gone beyond what you expected, Mr Ka-Siboto, but I thought it is important to just state that point. Thank you, Chairperson.

Adv Ka-Siboto: I am afraid my time has run out. And I will deal with the issues of other clients, perhaps, when I call them in for examination-in-chief or maybe reserve it for argument, depending how much time we have left for this sitting. But I want to put this proposition to you, and I am going to ask for your comment. I will put about two or three propositions and ask for your comment, and then we will conclude. The first is this, and it deals with what you are suggesting now, that you have been at pains to tell us what rights people have ex post facto; after the fact, they are supposed to do A, B and C. Do you accept at least as a matter of principle, that even if they do, later on, it does not remedy the concern they were raising in the House? Just as a matter of principle.

Mr Xaso: If Mr Ka-Siboto can repeat because I do not want to misunderstand his question?

Adv Ka-Siboto: Of course. I am saying, as a matter of principle… Maybe let me draw an illustration. Suppose the Speaker kicks out someone from the House without any just cause or without any basis in the rules; you then say they must leave, and thereafter raise the issue in writing. Am I capturing your point correctly?

Mr Xaso: I hear that, yeah.

Adv Ka-Siboto: I then say to you, even if they were to do so that will not alleviate the prejudice, which is throughout the House, unfairly so, not so?

Mr Xaso: If they were asked to leave, obviously they would be outside of the House. But, Chair, there are ways to raise matters, and there are procedures to raise matters. That is what it is. That is the dispensation that a parliamentary democracy has. So these rules are not just rules that are unique, necessarily, to our Parliament. That is how parliamentary democracy works. Of course, I am not here to do a lecture about parliamentary democracy, but there are rules of order, there are rules of debate, and how matters are supposed to be dealt with. Thank you, Chair.

Adv Ka-Siboto: I am not sure I got the answer. Maybe I missed it. I am saying to you, no amount of writing to the Speaker and complaining and getting concessions later on, will fix the fact that they are out of the House, unfairly so, and that can never be undone.

Mr Xaso: Of course, if the Member has left the House or has been removed from the House, the Member is out of the House.

Adv Ka-Siboto: And let me ask you this specific question. It is competent to raise the point of order about something that is not happening procedurally in the House, not so?

Mr Xaso: Yes, it is.

Adv Ka-Siboto: And it is competent to raise that point of order there and then, without having to write to the Speaker later on?

Mr Xaso: Of course, that is what is done on a daily basis, Chairperson.

Adv Ka-Siboto: Yes. The second proposition I want to put to you is this: what we have seen throughout the sitting, at least what I have tried to convince you of in this Committee, is that at crucial times the Speaker, and I will use your words, applied the rule differently to the same or similar set of facts. Do you have a comment?

Mr Xaso: Chairperson, I would rather say similar, not the same. And of course, the Speaker would have made a determination at that point to approach it that way.

Adv Ka-Siboto: And in some instances, where different Members behaved in a similar manner, the Speaker, in some instances that I have made references to, applied the rule differently.

Mr Xaso: Chair, what I am saying is that the Speaker would have taken a different approach in a particular manner, in a manner she deemed appropriate.

Adv Ka-Siboto: And lastly, had some of the Members that are before this Committee as charged, been given the courtesy of the rule being applied similarly to them as to others, then they would not have had a reason to disregard the ruling of the Speaker to leave the House, not so?

Mr Xaso: Chairperson there is no basis for any Member to disregard the Rules of the House, otherwise there will be chaos, because everyone would always have a reason why they do not do certain things. So that is my version, Chairperson.

Adv Ka-Siboto: Let me ask it again: had the EFF members that are charged not been reprimanded by the Speaker for doing things that are similar to other Members of Parliament, then they would not have been in front of this House?

Mr Xaso: Chair, had the EFF members abided by the rulings of the Speaker they would not have been in front of this House.

Adv Ka-Siboto: And had the other Members, who are not in front of this House, who behaved in a similar fashion as the charged Members, been reprimanded and asked to leave the House and failed to obey those instructions, they too would have been in front of this House.

Mr Xaso: Any Member who disobeys the instruction of the chair has to be dealt with in terms of the Rules; whether they would be in front of this structure or not, I do not know.

Adv Ka-Siboto: Including people that say unparliamentary things in Parliament?

Mr Xaso: Chair, any matter that is against the Rules and ruled upon the Member has to comply. I would like to ask a question, with your permission.

Adv Ka-Siboto: Are you sure you do not want to do this over drinks after this?

Mr Xaso: It is just that you asked me what Hon Ntlangwini had said, and I wanted to tell you what she said.

Adv Ka-Siboto: Okay, sure.

Mr Xaso: It is on page 261 of the Hansard.

Adv Ka-Siboto: Yes?

Mr Xaso: Towards the end, Hon Ntlangwini says: “Speaker, we cannot be addressed by a money launderer and a criminal.” That is what the Hon Member had said. And Hon Matumba, I think you had asked about him as well, on 266 says: “It is a political statement that the President is a money launderer? He laundered R60 million on his farm. It is clear. He is a money launderer.” Thank you, Chair. I just thought I should answer those questions that were asked of me earlier.

Adv Ka-Siboto: Yes. I mean, I do not know if it helps you much, because then it proves the point I was making earlier on [that] Ntlangwini was then dealt with precisely for saying a political statement that is unparliamentary. And I am saying to you this is no different from the Members that had said Hon Shivambu is a VBS looter and a murderer, but they were not sanctioned. So I am not too sure it helps you much making that point again, because again, I will suggest to you there is that inconsistency I am talking about, not so?

Mr Xaso: Chair, I am not about helping myself, I am about answering questions. I was asked…

Adv Magona-Dano: Chair, if I may? We are coming to the end of my learned colleague’s cross-examination. Chair, this question or rather, this statement has been put to the witness over and over again, the statement of inconsistencies, and he has given an answer. And I think if it can be left again, for argument and my learned colleague can use the various examples that he had put to the witness, Chair. Thank you, Chair. That is my objection.

Chairperson: Thanks, Adv Magona. Adv Ka-Siboto, I did not want to say time up [as] I know you are on your last proposition and trying to wrap up. I am becoming lenient so that you can close your reexamination correctly. Adv Magona is indicating that the issue of inconsistency has been thrashed out. As you conclude, can you consider that, so that we do not abuse the extra time I am giving you to close off your reexamination.

Adv Ka-Siboto: Thank you, Dr Chair. Let me not detain you any longer. I will reserve the rest of the issues I wanted to deal with for argument. And I thank you, Chair, for the indulgence of the extra minutes. I have no further questions for the witness. Thank you, Chair.

Chairperson: Thank you, Adv Ka-Siboto. Thanks for the reexamination that you just conducted. Hon Members, we are supposed to take lunch at quarter past one. It is almost ten to one, and the next item would be the reexamination of the witness by the Initiator. I just want to check with the Hon Members if we should continue or break at this point, so that we allow them to continue with disruption when we start? Hon Members?

Mr Mlenzana: Chair, let us agree.

Chairperson: Agree [to] what, Hon Mlenzana?

Mr Mlenzana: Yes, Chairperson. I am saying let us agree to adjourn now.

Chairperson: Okay. Initiator, you will reexamine the witness after we come back from lunch. Our lunch is forty-five minutes long. Can I get it from the staff, what time are we supposed to be back if we break now? So that we are all logged in at the same time.

Committee Secretary: Chair, that would take us to around half past one.

Chairperson: Half past one? Hon Members, let us allow everyone to break for lunch.

The Committee adjourned for a lunch break.

Chairperson: Good afternoon, Hon Members. Are we all back? M46, are you there?

Adv Magona-Dano: Good afternoon Chair. Yes, we are here, some of us are just walking in.

Chairperson: Alright, if we can settle and continue. Let us allow Members to settle.

Adv Magona-Dano: Thank you, Chair. We are all here now.

Chairperson: Thank you, Hon Members. Welcome back to today’s hearing – the session. At this point I will request for the Initiator to reexamine the witness. Adv Magona, you have an hour to do so. The staff will keep track of time. Mr Xaso, you are still under oath.

Adv Magona-Dano: Thank you so much, Chair. Mr Xaso, perhaps it would be best if I start right at the end of what my learned colleague had asked you about and then I am going to go a little bit forward and maybe a little bit of the evidence you already testified on before. So forgive me if you find that I am moving back and forth in some of the questions because there was a lot of repetition. Just before we adjourned – I want clarity really on this point – there were questions you asked about when it comes to Hon Mafanya, what ruling did the Speaker make [and] what she was talking about. I would like for you to correct me if I am wrong. If you can move to page 258, please.

Mr Xaso: Yes, I am there, Chairperson.

Adv Magona-Dona: Am I correct to understand that is what you referred to as the business of the day, that is the agenda where the Members are reminded why the parties are there?

Mr Xaso: You said 250…?

Adv Magona-Dano: 258.

Mr Xaso: The statement by the Speaker?

Adv Magona-Dona: By the Speaker, yes. That last paragraph there. The Speaker says – perhaps I should put it on the record also for the Committee. “I actually read my ruling. I actually said, Hon Member, that I am using Rule 92. And I went on and on. And I read that rule. And I went on to say that there is not a transgression, and that there was a programming committee this morning, which finalised the program. It was presented to all chief whips. This matter has been standing on the agenda or program of Parliament. So today, we are dealing with the budget of the President, and I have invited the President to take the floor and address Parliament. Then Hon Mafanya, will you please now that I have clarified the matter to you, take your seat?” Now this precedes everything that takes place when Hon Mafanya ultimately is wrong ruled that he must then move out or be evicted from the Chamber. So the question that was asked was the ruling by the Speaker. Am I correct to understand what I have just read was that a ruling and a refresher by the Speaker?

Mr Xaso: Yes, it was to inform Members.

Adv Magona-Dano: To all Members?

Mr Xaso: All Members, what was happening on the day.

Adv Magona-Dano: That is just in regard to Hon Mafanya. You have mentioned at 259 that he also disregarded the authority of the chair. Would that be with regards to 259 where he is referring to the charges that were opened against the President? And he also is referring that there is a case of criminality against the President which refers also to the President. Is that the disregarding of the authority of the chair having ruled on the matter?

Mr Xaso: The chair just explained what that day’s business was about. And indeed, the issue of the President being charged and stuff was part of that debate for that day.

Adv Magona-Dano: Now, I am going to take you to page 300, Chair. It was put to you that there was no ruling asking Mr Mafanya to leave the House. If you can go to page 300, please.

Mr Xaso: I am there, Chairperson.

Adv Magona-Dano: The Speaker there, on line four…

Mr Xaso: Yes?

Adv Magona-Dano: “I have given you the opportunity. I have warned you, not once. I have warned you twice. May you now leave the Chamber.” And then we jump again to Hon Mafanya’s reply: “Thank you, Madame Speaker. Can you bring bouncers to come and pick me up?” Is that not an indication that there is an understanding that you are ruled to leave the House or am I understanding this record incorrectly?

Mr Xaso: Yes, at that point already, the Member was being asked to leave the Chamber. And she said please bring the bouncers.

Adv Magona-Dano: Yes, and just for the record, Chair, the video at one hour, and eighteen minutes reflects this interaction between Hon Mafanya as well as the other Members on page 300. Alright, so there was a lot said about inconsistencies, how other party members are treated differently to others. Correct me if I am wrong, whether the Speaker has made a point of argument incorrect – what is regarded as incorrect by others – rulings or orders, if that was not taken up, it becomes irrelevant for this… well, it will become irrelevant for the purpose of today. Am I correct?

Mr Xaso: Yes, of course, it is not before this Committee.

Adv Magona-Dano: The mandate of this Committee is clear from the Rules Committee, rather from the subcommittee that was nominated, and then the Rules Committee, and then the decision was made that this is the mandate. It was clear, investigate what took place on the 9th and 10th, regarding the specific Members that are on the charge sheet. Am I correct?

Mr Xaso: That is correct.

Adv Magona-Dano: Oh, sorry.

Adv Ka-Siboto: Sorry, Chairperson. It is Ka-Siboto. Can I please object to the phraseology of the questions in that they give a version and then Mr Xaso is asked to confirm? I had the same objection with the previous initiator. I would rather the questions be asked as they ought to be in reexamination, open-ended, without giving a version just asking for confirmation. So for example, she gives now, and it is the third time in her questions where she tells the witness what the answer is, and asks him to confirm. I would rather the question, for example, with the issue of the mandate. ‘What is the mandate of this Committee in terms of the Rules?’ That is how the question ought to be, rather than ‘This is the mandate, correct?’ So I would please ask that you rule on that, Chair, that open-ended questions – that are not suggestive – are asked of the witness. Thanks, Chair.

Chairperson: Thanks, Adv Ka-Siboto. Adv Magona, that is the request. Please make consideration of the open-ended questions.

Adv Magona-Dano: No problem, Chair. And perhaps before you make your ruling, may I just say one or two things? I think mine is to put what the witness has already answered, and mine is to confirm if I am correct to understand it as so. But I will take the ruling of the Chair on the point.

Chairperson: Thank you, Adv Magona. As you put it to him to confirm what he has already testified on, please consider your questions as you ask him questions, that they should be open-ended.

Adv Magona-Dano: Thank you, Chair.

Chairperson: You can continue.

Adv Magona-Dona: Perhaps, you can explain a procedure in terms of the Rules when any Member of the House is unsatisfied with the performance of the Speaker in her duties?

Mr Xaso: Chairperson, there is a procedure in terms of Rule 92(12) – in fact, it begins at sub-rule (11) – “The presiding officers ruling on a point of order is final and binding and may not be challenged or questioned in the House.” (12)(a) says “A Member who is aggrieved by a presiding officers ruling on a point of order may subsequently in writing to the Speaker request the principle or subject matter of the ruling be referred to the Rules Committee. The Rules Committee may deal with the referral in terms of paragraph A as it deems fit”, and then it goes on and on. Thank you, Chair.

Adv Magona-Dona: Thank you. My learned colleague also asked you questions with regard to – or rather, it was put to you what Hon Matumba’s defence would be, that they were not asked to leave the House, then therefore, they did not breach the Rules – not in so many words, but that is how it was put. Would you go with me to page 262, please?

Mr Xaso: Yes, I am there.

Adv Magona-Dano: In the middle where the Speaker is, you would note at the beginning of that line when you read – perhaps, I do not want to lead you as you read this page. What impression does it give you with regards to what was put to you?

Mr Xaso: Here the Speaker was referring to people in the Chamber, “Will you please leave the Chamber?” Of course, the Hansard does not capture the names.

Adv Magona-Dano: Perhaps I can take a step back, just to be accurate. At page 265, there is an interaction with Hon Matumba there. The statement that he makes supports what Hon Ntlangwini had said about the President. Am I correct?

Mr Xaso: Yes.

Adv Magona-Dano: Then he goes on to page 266. We have Hon Matumba proceeding and then calling the President, making those disparaging remarks. Am I correct about money laundering and the R60 million on his farm and so forth, on the rest of that page?

Mr Xaso: Yes.

Adv Magona-Dano: Having you read what is written here, would I be correct to understand that the order to leave the Chamber must have been against Mr Matumba?

Mr Xaso: That would be my view. But as I indicated no names here.

Adv Magona-Dano: Yes.

Mr Xaso: But the context suggests that, Chair.

Adv Magona-Dano: Chair, I do not want to prolong the proceedings, but it would be the record of thirty-six minutes and thirty seconds on the video. This is where the order for Mr Matumba to leave, and that is what I will argue at a later stage. Alright, Mr Xaso, let us move on. There was also much about how some Members ended up being before this Committee today, while other people who were also saying a lot of things, making disparaging remarks about others, are not before this Committee. Now my question is, would I be correct… I was trying to find, to be fair to my learned colleague, the exact page numbers. There were also Hon Members, like Hon Malema, Hon Shivambu, who were also making these remarks against the President. If you recall independently, tell me if I am wrong.

Mr Xaso: Yes, I do recall.

Adv Magona-Dano: And they were never brought before this Committee, and I correct?

Mr Xaso: They were not. They were removed from the… Yes, but they were not brought before this House.

Adv Magona-Dano: Apologies, Chair. I am reading my notes, to make sure that I have got everything. I am interested to… I do not know if you have had a look at the video? My learned colleague was asking questions with regard to Hon Ntlangwini, I think, who made the utterances you say were audible and could not be missed. Have you had an opportunity to have a look at that?

Mr Xaso: Yes, that is what I stated when we were ending the last session, what Hon Ntlangwini had said on page 261.

Adv Magona-Dano: 261?

Mr Xaso: Yes.

Adv Magona-Dano: Okay, can you recall what she said exactly?

Mr Xaso: Hon Ntlangwini said the following: “Thank you very much, Speaker. Speaker, we cannot be addressed by a money launderer and a criminal.”

Adv Magona-Dano: Alright. And then fair comments were made as well with regards to… but there were Members who made disparaging remarks up against other Members also. And we were given an example about Hon Shivambu, who was called a VBS looter and all such. What ought to happen for that to be something that is before a Committee of this nature? What ought to have happened on the day?

Mr Xaso: Concerning Hon Shivambu?

Adv Magona-Dano: Yes, if there were remarks made against him.

Mr Xaso: Okay, suppose that there were remarks made against an Hon Member, and a point of order is raised, and a matter is ruled upon. And the Member concerned is asked to withdraw, and the Member does not withdraw the remarks – obviously, depending on the circumstances. Let us say the Member leaves the Chamber when they refuse to withdraw the remarks, then the matter is likely to end at that point. However, if the Member decides to defy the authority of the chair, not leave the Chamber and perhaps say a few remarks that are unparliamentary even to the chair, and the Sergeant-at-Arms is then sent to the Member, and possibly the Member pushes the Sergeant-at-Arms, or does not even push the Sergeant-at-Arms, then the matter is escalated to the Parliamentary Protection Services and the Member is then removed physically. The matter would obviously go to the subcommittee on the removal of Members, and possibly the Rules Committee and this Committee. That is the journey it has travelled.

Adv Magona-Dano: Okay, and the part I was most interested in is that there must be a point of order made by someone, or raised by someone?

Mr Xaso: Well, a point of order raised [and] ruled [on]. Well, of course, as you have noticed, sometimes there were no points of order. But there must have been a ruling that was disobeyed. And then one thing leads to the other.

Adv Magona-Dano: Okay. Then, I do need clarity also with regards to the Speaker's powers or authority. There are certain conducts that the Speaker can follow the Rules and others not when wanting to evict Members. From questions asked by my colleague it seems… If you recall, this was with regards to… My colleague mentioned that certain conduct is so grave it requires immediate eviction of Members and others not.

Mr Xaso: Yes.

Adv Magona-Dano: And you explained that it was not a requirement in this context for her to maybe warn a Member, call for the Sergeant-at-Arms, and then the PPS?

Mr Xaso: Yes, I think the point I was making is that there is no rule that talks about the Speaker warning people before they are removed – or any chair. And two, that when Members interfere… Maybe I should read the rule, Chairperson, with your permission.

Adv Magona-Dano: Yes, please.

Mr Xaso: Firstly, Rule 73(4), I have not cited this rule, so I must start there. “If a Member resists attempts to be removed from the chamber in terms of sub-rule (1) or (2), the Sergeant-at-Arms and Parliamentary Protection Services may use such force as may be reasonable or necessary to overcome any resistance.” That is the first thing. Sub-rule five “No Member may, in any manner whatsoever, physically intervene in, prevent, obstruct, or hinder the removal of a Member from the Chamber in terms of these rules.” So there is hindering, there is obstruction, there is prevention, and there is intervention. And then (6), “Any Member or Members who contravene sub-rule (5) may, on the instruction of the presiding officer, also be removed from the Chamber and precincts forthwith. So that is the point I was trying to make, that they are then removed immediately from the Chamber.

Adv Magona-Dano: Then as I draw closer to a close. It was put to you… Alright, perhaps, I should put it this way. As you were present in the House, you saw the physical removal of Mr Tambo. Am I correct to understand your evidence?

Mr Xaso: Yes.

Adv Magona-Dano: Alright, Chair. I just want to get this one question. I do not know where I wrote it down. I cannot find it. It was put to you that one cannot leave the House if they are not invited to leave or told to leave the House. Can you recall that?

Mr Xaso: If you can just…

Adv Magona-Dano: Let me just get it. I am so sorry. No, I do not think I can find it. Let us talk about the removal of Mr Tambo. I really just want to understand the spacing – can you explain that? Why, as my learned colleague asked you, did he have to stand up, so that, as is put to you, the Sergeant-at-Arms can then perform his duties with Ms Chirwa?

Mr Xaso: Yes, the point I was making, Mr Ka-Siboto suggested that the space would not have been adequate for the Sergeant-at-Arms to move and get to Ms Chirwa. And then I said – because initially I said I believe there was space, but I took his version – even if there was not enough space, it is expected of Members to enable the directives of the presiding officers to be carried out. So, let us take for example the sitting hall. Clearly there it is difficult for a person to move either behind or in front of the Hon Members seated. So what happens there when there are Members who need to be removed? A Member stands to give way to the Sergeant-at-Arms or the usher, if it is a joint sitting. And the whole idea is to enable the House to proceed with its business and to ensure that order is maintained. So that was the option available to the Hon Member, to make way for the Sergeant-at-Arms to carry out the directives of the Speaker. That is really the point that I was trying to make. Thank you, Chair.

Adv Magona-Dano: Alright. Before I let you go, Mr Xaso, I am going to ask, Chair, if we can just play this portion of the evidence which I think is crucial with regards to Mr Tambo. I have the minutes here at 00:53:40 relating to Mr Tambo interfering or standing up – just to give an impression to the Committee. Thank you, Chair. It is a two minute clip.

Chairperson: IT, please can you assist?

The Committee was taken through the video footage of the proceedings.

Adv Magona-Dano: Just pause right there. We will continue right now. I see Mr Tambo is sitting to my left, to the right of Hon Chirwa. Am I correct? Is that the right or left?

Mr Xaso: He was facing this side, so Hon Tambo was sitting to the left of Hon Chirwa.

Adv Magona-Dano: Alright, let us resume with the video.

The Committee resumed watching the video footage.

Adv Magona-Dano: Can you pause? Thank you, Chair. Mr Xaso, can you explain vis-à-vis your evidence?

Mr Xaso: Chair, it appears that the Hon Members switched seats and now Hon Chirwa is on the other side, to the right of Hon Tambo, and Hon Tambo is next to where Hon Chirwa was sitting before.

Adv Magona-Dano: And with regards to Mr Maleeme?

Mr Xaso: Mr Maleeme is on his way to Hon Chirwa. And we see Hon Tambo exchanging some words.

Adv Magona-Dano: Now, I want to understand your evidence with regards to the word you used...

Mr Xaso: The effect.

Adv Magona-Dano: The effect of it was?

Mr Xaso: Blocking the Member from being removed.

Adv Magona-Dano: So is that what you are…?

Mr Xaso: That is what I am saying.

Adv Magona-Dano: Okay. Chair, I am not taking the video any further. Thank you, Chair. I have nothing further for Mr Xaso. Thank you, Mr Xaso. Thank you, Chair. That is my cross-examination.

Chairperson: Wow, thank you, Adv Magona. You have saved us a lot of time, as your hour was supposed to expire at 29 minutes to three, we are at six minutes past two. Hon Members, at this point in time I would allow the Hon Members a 45 minute session for clarity-seeking questions.

Committee Secretary: Chair?

Chairperson: Yes?

Committee Secretary: Mr Xaso will have to be excused, but he wanted to say something before he leaves.

Chairperson: Oh, sorry. Yes, Mr Xaso?

Committee Secretary: Also, clarity questions before he leaves from the Members, Chair.

Mr Xaso: Chair, I did not ask for clarity questions. The point I wanted to make, so that I am not guilty by omission. Mr Ka-Siboto referred to me as a lawyer. I think he was doing that in good faith. Chair, I am not a lawyer, I am a legally qualified officer. But that is very kind of you. Thank you, Chair.

Chairperson: Thanks, Mr Xaso. Okay, we can then go back to the Hon Members [for] clarity-seeking questions. Forty-five minutes. Staff, can you please track the time for us? I am opening the platform now. I will look at my attendance for a show of hands.

Committee Secretary: The Deputy Chief Whip of the majority party is up, and Mr Mlenzana’s hand also.

Chairperson: In that order, Hon Mlenzana and Hon Dlakude, for now.

Mr Mlenzana: Thanks, Chairperson. Greetings once more to the legal personnel, and our colleagues. Chair, perhaps, you would have guided us as to who exactly these questions are directed to? Or should I just ask questions both to Adv Ka-Siboto and Mr Xaso, or only Mr Xaso? Just direction.

Chairperson: Okay, your questions…

Committee Secretary: Chairperson?

Chairperson: Yes?

Adv Magona-Dano: Chair, if I may assist and give guidance to the Committee? As is in the previous matter, you would recall that the clarity questions were to the witness before the Committee, not the legal representatives. I just wanted to give that clarity.

Mr Mlenzana: No, thanks. Thanks, Chairperson. Mr Xaso, good afternoon.

Mr Xaso: Afternoon, Sir.

Mr Mlenzana: Just to check. Here I assume that there may be Members who are new offenders or repeat offenders. Am I correct that there would be repeat offenders? If yes, how many? The second question…

Mr Xaso: Chair…

Mr Mlenzana: No, no, no. I will just raise these questions, and then you will respond. Then the second one would be, particularly in the case of the first time offenders, would you put the Committee at ease in terms of assuring the Committee that these Members are well-versed with the prescripts governing, perhaps, the Constitution, legal prescripts, up to the Rules of the House? If yes, would you, without boring us with details, just indicate which sessions in Parliament engage to ensure that all Members are well versed with the Rules? Look, we are sitting with a situation where we have Members who are in contact, as per the allegation. Then the last one would be: seated where you were at the time of these altercations, were you able to hear the actual voices or messages as to who was saying what to whom, or were you only like us who could only see what was happening in the video? The last question. As a person is responsible for advising us, are we here dealing with the act in fact or are we dealing with the material circumstances which resulted in the act [occurring] in fact? Thanks, Chairperson.

Chairperson: Thanks, Hon Mlenzana. Hon Dlakude?

Mr Xaso: May I respond?

Ms D Dlakude (ANC): Thank you very much, Hon Chair. I am not sure if I am audible, Hon Chair?

Chairperson: You are.

Ms Dlakude: Thank you very much. Hon Chair, I want to take this opportunity to greet all the Hon Members and the advocates representing both sides. I want to thank Mr Xaso for making time to give evidence before this Committee to the best of his knowledge. Mr Xaso, being someone who has worked with Members for quite some time in Parliament, especially in the National Assembly, which documents do you give Members of Parliament when they are sworn in, so as to assist them to know what is acceptable as Members of Parliament, in a way of equipping them? And what is it that guides Members to behave in a manner that is acceptable for Hon Members in the House? Which are the mechanisms that are there in Parliament, which makes it possible for political parties, especially the chief whips, to sit together and consult each other? Again, which other mechanism that Parliament is using to make sure that the proceedings of the House goes as agreed to, to avoid Members or any House of Parliament to be all over the show? Do we have mechanisms that are guiding Members of Parliament to stick to whatever that is agreed to? If you can clarify that. Thank you very much, Hon Chair.

Chairperson: Thanks, Hon Dlakude. Can we afford Mr Xaso to respond before we take Hon Tseke and Hon Xaba.

Mr Xaso: Thank you, Chairperson. And good afternoon, again, Hon Members. Chair, with your permission I request that I do not respond to the question about new or repeat offenders or first time offenders. I think the Hon colleagues who support this Committee may be able to respond to that at the right time. Personally, I regard Members as Hon Members and therefore I would not want to relate with them as offenders. Parliament has training for Members, at the point of commencement of duty, when they become Members, of course at the beginning of a Parliament. But apart from that, I know that during the Parliament itself, during the term of this Parliament, there was training of Members where the Rules were interrogated [and] explained. But apart from all of those interventions, we are always available to work with Members. In fact, we would prefer that Members even invite us where they want clarification on the Rules. Some of the Members on this platform will be aware, my office is always open to interact with other Members, even to go to their party caucuses to explain the Rules if we need to, together with a team that I work with. Was I able to hear all the voices? I cannot claim that I was because when there is commotion in the House, especially with the current arrangement of a hybrid platform, while you are busy with the floor of the House, then there are also Members who are speaking on the virtual platform, and you are also busy interacting with the presiding officers. I cannot claim that I was able to hear all their voices, but to the extent possible, I was able to hear what was being said, especially those things that were said in the Chamber, and in some instances that were said on the virtual platform. So yes, that would be the position. Are we dealing with the act itself, or the consequences of the act? I would say that generally, Members never get to this point of unparliamentary expressions, because the expectation is that a Member would withdraw. That is an established parliamentary practice and convention. Members feel strong, very strong about issues and express their views strongly, and sometimes out of principle, they refuse to withdraw what they have said. That is generally accepted, as long as they leave the House, once they are told to leave the House. And in most instances, it ends there and does not go beyond that point. But when Members do what the Rules regard as unparliamentary issues, and then they are asked to withdraw, they refuse, they are asked to leave, they refuse, they are assisted by the Sergeant-at-Arms, still they refuse. Then you have to employ the services of the Parliamentary Protection Services. And what makes that an issue is that what it means is that the House must now pause. The House must now pause its business, so that you can deal with Hon Members who are not complying with the Rules and the orders of the presiding officer. And that is why at the point of these rules being developed, there was a requirement for a committee to assess the circumstances on both sides to say were Members fairly treated? In other words, was the removal done properly. And also to what should be done with the conduct of Members. That is why you find some of the matters end up here. Others do not even reach this point; even if they are removed, they end at the level of the Rules Committee. So which documents do we give to Members? The rules, the Constitution, and any other document. If Members want a record of unparliamentary expressions, we would make that available to Hon Members. Other mechanisms that enable MPs to sit together to consult. Yes, there are whippery meetings, there are programme committees, there are rules committees that deal with a variety of rules; that is where matters can be discussed, where rules can be clarified. Thank you, Chairperson.

Chairperson: Thank you, Mr Xaso. Hon Tseke, followed by Hon Xaba.

Ms G Tseke (ANC): Thank you very much, Chair. Greetings to my colleagues and all the legal representatives present in the House. Good afternoon, Mr Xaso.

Mr Xaso: Afternoon, Ma’am.

Ms Tseke: How are you?

Mr Xaso: I am well, thank you.

Ms Tseke: I am good. I know it has been a long day for you. Just two questions from my side. In your experience as the Secretary of the National Assembly, was the Speaker correct to reject the point of orders raised by the Members concerned on the 9th and 10th? Secondly, did the Speaker give Hon Matumba and Hon Ntlangwini sufficient time or opportunity to withdraw their statements? Was the conduct serious enough to warrant the Speaker to have those Members removed in the House? I thank you.

Chairperson: Hon Xaba?

Mr N Xaba (ANC): Thank you, Hon Chair. Chair, I think mine are two questions, but maybe a follow up with this one. I just want to appreciate and acknowledge everybody present and thank Mr Xaso for being present. Mr Xaso, were the two Members, Mr Matumba and Ms Ntlangwini treated differently when the Speaker applied the Rules, when she asked both to leave the House? Another question: Ms Mathulelwa was removed from the House mainly because she raised objections around Members on the virtual platform being muted. What would be the basis for the Speaker to instruct the table staff to mute a Member of the virtual platform? Was the Speaker acting within the Rules when such an order was made? Was Ms Mathulelwa justified in raising the issue? Lastly, Mr Xaso, is there any rule that says even though now you have been on the witness stand, that says that you must meet a Member in Parliament who had contravened, thereafter check his or her status of why did they do that? Or you came here to assist the Committee work, because some questions, even though the Chair indicated that they may not be for the legal team, I found it very worrisome if there is no rule that says you must meet both the accused and the accuser? Thank you.

Chairperson: Thanks, Hon Xaba. Mr Xaso? You can lower your hands, Members, so that I am to check if you are coming back on questions. Mr Xaso?

Mr Xaso: Thank you, Chair. When Members say unparliamentary things the Speaker is correct to… because you cannot use a point of order to break the Rules. I lack another way of putting it. One of the provisions in Rule 92(9) says that Members may not disrupt proceedings by raising points of order that will not comply with the Rules. So a point of order must comply with the Rules. You cannot raise a point of order to accuse a Member of criminality or any other conduct. There are ways to do that; [a] substantive motion among others. And, Hon Chair, that is really the issue about parliamentary processes. It is not like Members cannot raise their issues of deep concern, but they must follow a procedure, Rule 85, issues of substantive motions. So I think the point must be made that Members have freedom of speech, but that freedom of speech must not be abused. Hon Matumba, and Hon Ntlangwini; I think that it has been demonstrated here that they were given an opportunity to rectify the situation. And that opportunity was not taken up. And therefore it is my submission that the Members were treated fairly. Was the Speaker justified to mute the mics? The Speaker has a huge responsibility of ensuring that the House is able to transact its business. Rule 26(2) says that “The Speaker must maintain and preserve the order of and proper decorum in the House and uphold the dignity and good name of the House.” So as part of upholding that dignity and good name, the Speaker under certain circumstances may order that mics be muted. And as Members would have witnessed, there was commotion in the House, you could hardly hear what Members were saying, Members were speaking at the same time. And in order for Speaker to uphold this expectation, she then directed that. Of course, there is another provision that deals with the muting of mics in certain circumstances. But under those circumstances, as the Speaker had explained, it was important to restore order in the House, and the Speaker deemed it necessary that all the mics be muted. So there was a basis for doing that so that the House could do its business. Do I have any obligation to interview Members? No, I do not. In any event, I will be interfering with these processes, if I would now be approaching Members to ask them to explain to me why they were saying certain things on the day. But in any event, there is no such expectation of my staff or myself to do that. If circumstances dictate or in another context, that I need to clarify a matter that was said by a Member in a meeting, I will do that. But in this context, there was no need – such action was not warranted for me to start inquiring what Members were saying to staff in the Chamber. Thank you, Chairperson.

Chairperson: Thank you, Mr Xaso. Hon Members, you still have time. I have noted all the hands that were raised. Is there still a Member who wants to take a bite on the clarity-seeking questions?

Mr Mlenzana: Mlenzana.

Chairperson: Yes, Hon Mlenzana?

Mr Mlenzana: Thanks, once more, Chairperson. It is very light. One, let me start by formally withdrawing the manner in which I put [my question] about repeat or first time offenders. I am withdrawing that statement, after being advised correctly by Mr Xaso, through his response. The second one would be a follow-up on the question which I had asked around the act and fact versus the circumstances. I heard you, Mr Xaso, going to town when you are talking about the circumstances which led to the act. Now, for us as the Committee what I wanted because at the end of the day we must determine as to whether Members should be charged with contempt based on their actions. Could you decipher the two for me? Thanks, Chair.

Chairperson: Thanks, Hon Mlenzana. Hon Xaba, your hand is also up?

Adv Magona-Dano: Chair?

Mr Xaba: Thanks, Chair. Chair, can I come in?

Chairperson: Yes.

Mr Xaba: Thank you, Chair.

Adv Magona-Dano: Before you proceed, we are having difficulty hearing the Members. I do not know if it was the speaker, Hon Mlenzana. Hon Mlenzana, it was difficult for us to hear the questions. If Members could just be wary of the speaker and the microphones. Maybe he can repeat the questions? I was watching Mr Xaso, and he could not hear clearly what he was saying, Chair.

Chairperson: Mr Xaso, did you get what the Hon Member was asking?

Mr Xaso: Chair, I did not hear clearly. I think Hon Mlenzana was asking about the act and whether it warrants what we are doing here, and what the Committee is doing. I seemed to have heard him in those terms, but, Chair, may I be corrected, please.

Chairperson: Mr Mlenzana.

Mr Mlenzana: Yes, Chairperson, Mr Xaso has captured me. Can you hear me now? I have tried to move to a better place.

Mr Xaso: Yes, I can hear you better now.

Chairperson: On the virtual you are audible. It is the M46. Let us try Hon Xaba. Mr Xaso, you are correct, that was the question. Let us take Hon Xaba and you will indicate if you still experience the same problem.

Mr Xaba: Am I audible?

Mr Xaso: You are audible.

Mr Xaba: Yes, Chair. Mine would be to ask Mr Xaso in his definition of a Member of Parliament, is he partisan or participating in the hearing as we are all Hon Members of Parliament. I have a problem with party line definitions. I just want to understand his authority of participation. Thank you.

Chairperson: Thanks, Hon Xaba. Mr Xaso, those two.

Mr Xaso: Chairperson, maybe let me start with the last one. Chair, I must say that for us as officials we really never derive any pleasure or joy from testifying on matters that concern Members or against Members, but it is a function that must be performed. Chair, we do not volunteer, we are called to testify on what we have seen. So, if we had a choice, we would not be doing this. And in fact, if we had a choice we would really persuade Members…

Chairperson: Can other Members, please, mute on the platform. Sorry, Mr Xaso.

Mr Xaso: If we were able to, we would really persuade Members to just conduct business according to the Rules; and you can still have a robust sitting, you can still have interjections and the business of the House would still continue. And there would still be points of order, there may be a Member who is asked to leave and the Member leaves and then we continue with business. So that is, of course, maybe too ideal, but that is our wish. So whenever we interact with Members on the Rules, that is what we are seeking to achieve. So no, we are not partisan. We are officials and we serve all Members. We serve all parties. In fact, outside of this, in my position as Secretary to the House, I interact with all parties very well, with all chief whips, very well. We call each other on parliamentary matters, and that is the understanding out there. So that is what I would say about the issue of partisanship. So my authority for being here is that I am an advisor on procedures. I am not the only one, I have got colleagues but in this instance I happened to be the chief advisor on the day as well. And therefore, I am here today. The issue of the act, I am hoping that I got the Member correctly. The…

Mr Mlenzana: Excuse me, Chair. May I come in, before Mr Xaso answers? I am fine now.

Chairperson: Alright, please, repeat your question.

Mr Mlenzana: Thanks, Chairperson. Mr Xaso, the question is when I am talking about the act or action, so to speak, this question is seeking to check are we now dealing with circumstances that led to the action, that is the contempt, or are we seated here dealing with the action? Remember, I said I am not sure if we are mitigating or still debating to check the fact that has appeared? Thanks, Chair.

Chairperson: Mr Xaso?

Mr Mlenzana: Thank you, Chair. This Committee is to assess whether what the Members did in the House on the day was… qualifies as contempt, in terms of Rule 10: “A Member who wilfully fails or refuses to obey any rule or order or resolution of the House, may be found guilty of contempt of Parliament, in terms of the Powers and Privileges Act.” That is Rule 10. So this Committee is here to make that assessment. Of course, the Speaker acted on the day. The issue really is about whether these Members, what they did in the House constitutes contempt in terms of Parliament. And, Chair, that is the best I can do in terms of answering this particular question. I am sorry if I did not touch the specific areas that the Hon Member wanted me to touch. Thank you.

Chairperson: Thank you, Mr Xaso. Hon Members, those were the hands that I have. Before we step out of this one, I think I would have covered every Member, or is there any Member that I might have not recognised? I do not see any other hands. Alright. At this point in time, Hon Members, that would have wrapped [up] the evidence led by the Initiator. It will be now time that I call upon Adv Ka-Siboto to lead his evidence and call his witnesses. Adv Ka-Siboto?

Adv Magona-Dano: Just before my learned colleague proceeds, Chair. May I ask that Mr Xaso be excused formally?

Chairperson: Alright, we agree. Mr Xaso, thanks very much.

Mr Xaso: A pleasure, Chairperson. Thank you.

Chairperson: Thank you.

Adv Magona-Dano: Before Adv Ka-Siboto takes over, just a matter of procedure. We intended prior to the motion to file affidavits of a technical nature – that is the evidence from the various witnesses which they have disposed to. Instead of calling them we just want to find those affidavits and have them up exhibits before the Committee. And then thereafter, we will then close our case, Chair. If the Chair allows it, I have a bundle. Two of them were referred to by my learned colleague, and the rest are also here, which I wish to just hand in.

Chairperson: Hon Members, do you understand what the Advocate is saying? I do not think that I understood you.

Adv Magona-Dano: I have affidavits before me, Chair. Instead of us calling, as the initiators, these witnesses to come and testify, we would request that we simply hand them in as part of the evidence before you – the evidence of the initiators case, where you simply read the affidavits as you consider the matter, instead of calling them for them to come to testify and be cross-examined. So I simply wish to hand them out as part of our evidence. That is all, Chair.

Chairperson: The witnesses for the Initiator? We are talking about Ka-Siboto now, yet you are talking about the Initiator.

Adv Magona-Dona: Yes, I apologise, Chair. I think when you called for Adv Ka-Siboto, I thought I would be given the opportunity first to close my case myself.

Chairperson: Okay.

Adv Magona-Dona: So hence, I requested the Hon Chair to then grant me that opportunity prior to him leading his evidence, just before closure of my case.

Chairperson: Oh, okay. Oh, I wrapped up your leading evidence before you presented your other package. No, then that is fine. It is noted that you have a package that you are putting before us for consideration as we wrap up your leading evidence.

Adv Magona-Dano: Yes, Chair. That is the affidavits of Leslie Bryan, Nigel Van Ster, Tebello Maleeme, Darlene Alice Carolfield. Thank you, Chair. That would then be the evidence for the Initiator.

Chairperson: Thank you, Adv Magona. Adv Ka-Siboto?

Adv Ka-Siboto: Thank you, Chairperson. I would like to call Tambo MP as the witness on his behalf, and that of some other Members.

Chairperson: Thank you. Mr Tambo, are you here?

Mr S Tambo (EFF): Yes, Chairperson. I am here.

Mr Tambo was duly sworn in as a witness.

Chairperson: Thanks, Hon Tambo. You have the platform with your witness, Adv Ka-Siboto.

Adv Ka-Siboto: Thank you so much, Chairperson. Good afternoon, Mr Tambo.

Mr Tambo: Afternoon, Advocate.

Adv Ka-Siboto: You are obviously aware that you are charged in these proceedings. And I want us to talk about the incident that led to the charges against you. You would have observed earlier on a video that was streamed of your interactions with the Sergeant-at-Arms. Do you recall that video clip?

Mr Tambo: Yes, I do, Advocate.

Adv Ka-Siboto: It has been suggested under cross-examination by Mr Xaso, that there is no requirement in the Rules that you are supposed to be given any courtesy of being asked to leave, for example, before you are kicked out of the House. I took issue with that and I said that cannot be so. Do you recall?

Mr Tambo: Yes, I do, Advocate.

Adv Ka-Siboto: I want to read the provision of the Rules for you and ask for your comment.

Mr Tambo: Okay.

Adv Ka-Siboto: For the benefit of everyone who has the Rules in front of them, it is Rule 70 that I want to start with. Do you have the rule with you, Mr Tambo, or do you want me to read it out loud for you?

Mr Tambo: You can read it out loud for me, yes.

Adv Ka-Siboto: It is Rule 70. It reads as follows: “If the presiding officer…” being the chairperson in this instance, or the Speaker, rather, “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 a Member’s conduct is closely disorderly, he or she may order the Member to leave the Chamber immediately, for the remainder of the day sitting.” According to your understanding, is it incorrect to say the Speaker may simply because they are unhappy with the conduct of a Member ask the PPS services to remove such a Member, according to Rule 71?

Mr Tambo: Look, according to my understanding, there would have to be an interaction with the Member to alert them of the misconduct that they are undertaking, and the basis of their removal on the basis of that misconduct. So I do not think that the rule necessarily provides that the Speaker can arbitrarily remove people without any interaction with Members, as to that they are engaged in misconduct, or that they must cease that misconduct; otherwise, they risk removal. So in my understanding, there would have to be that interaction between the Speaker and the Member in instances where misconduct is identified by the Speaker.

Adv Ka-Siboto: Yes, and Rule 71 says, “She must ask that Member to leave the Chamber.” That is [Rule] 71. And then it says under 72, “A Member ordered to leave the Chamber must immediately withdraw from the precincts of Parliament.” In other words, the withdrawal from Parliament would come after they disregard [Rule] 71. But the point simply is the Speaker, as a starting point, must ask that Member to leave. It is going to be important for your purposes because I put a version that your version will be that you were not asked to leave the House. I do not think there is any opposition to that, certainly not from Mr Xaso, because he justified the conduct of the Speaker not asking you to leave on the basis that there is no such a rule that says something must happen before she asks that a Member leaves the House. So I have read [Rule] 71 for you. Now, what is equally important, is Rule 73 – if I can direct the Chair and the Committee Members to Rule 73 – “If a Member refuses to leave when ordered to do so…” and that was in terms of [Rule] 70, so that is what the Speaker was supposed to do first – ask you to leave. Then [Rule] 73 deals with when you refuse to leave, “If a Member refuses to leave the Chamber when ordered to do so by the presiding officer, in terms of Rule 70”, that I have read now, “or 71, the presiding officer must instruct…”, now this is important because before the Protection Services comes in, this is what supposed to happen first: firstly, you are asked to leave and you do not leave; if you refuse to leave in terms of [Rules] 70 and 71, the presiding officer must, not optional, instruct the Sergeant-at-Arms to remove the Member from the Chamber and the precincts of Parliament forthwith. Were you asked by the Sergeant-at-Arms to leave the House?

Mr Tambo: No, not at any point did the Sergeant-at-Arms ask me to leave the House.

Adv Ka-Siboto: Did the Speaker ask you to leave the House?

Mr Tambo: No, not to my recollection. I was not asked to leave the House. I was simply… In fact before, it was the Sergeant-at-Arms who came to me and we had an interaction, but not an interaction about me leaving the House. And the Speaker actually instructed, after instructing the white shirts or the security of Parliament to remove Hon Naledi [Chirwa], the further instruction was that I should be removed as well. So the request for my removal was not to me but rather to the Protection Services. In that commotion the request was not to me.

Adv Ka-Siboto: Yes, and then Rule 73(2) says “If…”, so in other words, this must happen first, “the Sergeant-at-Arms is unable in person to effect the removal of the Member, the presiding officer may call upon the Parliamentary Protection Services to assist in removing the Member from the Chamber and precincts of Parliament.” Now, were you removed by the PPS?

Mr Tambo: Yes.

Adv Ka-Siboto: Was that the first recourse that the Speaker relied upon in disciplining you?

Mr Tambo: Yes.

Adv Ka-Siboto: In other words, she did not comply with [Rule] 73(2), nor did she comply with [Rule] 73(1)?

Mr Tambo: Yes, the Speaker did not comply with those rules.

Adv Ka-Siboto: To the best of your knowledge, is there anything in the rules, other than what I have read, that empowers the Speaker to simply invoke the services of PPS as a starting point?

Mr Tambo: No, there is no such a provision in the Rules, to the best of my knowledge.

Adv Ka-Siboto: Very well. Let me ask you this then. So you have testified. I mean, obviously, these rules do not apply to yourself only. I would presume that the same procedure the Speaker must follow in respect of all the Members of the House, not so?

Mr Tambo: Yes, the Rules apply to all Members.

Adv Ka-Siboto: Yes, including the ones that you are charged with?

Mr Tambo: Yes.

Adv Ka-Siboto: Yes. Now, let me ask you this. You have testified that you had stood up and spoke to the Sergeant-at-Arms when he tried to effect the removal of Ms Chirwa, not so?

Mr Tambo: Yes, I had.

Adv Ka-Siboto: Yes. I asked Mr Xaso if he knew what you had said to the Sergeant-at-Arms, and he said he did not know. Just to confirm, has Mr Xaso or anyone asked you questions about what you had said to the Sergeant-at-Arms?

Mr Tambo: No, not Mr Xaso or anyone has asked me from Parliament what my interaction with the Sergeant-at-Arms was.

Adv Ka-Siboto: Yes, and you would have heard my interaction with Mr Xaso. I said to him it is concerning that no one asked you, because if you have been charged with obstructing the work of Parliament, that requires that you do so deliberately, you cannot negligently obstruct, you must have the intention to actually obstruct. In other words, it is not enough that you are in the way. The question is why are you in the way? What is the intention? So it is bothersome to me that no one cared to ask what the purpose of you standing up was. Be that as it may, you are now here. Take this Committee into your confidence and tell them what your interactions were with the Sergeant-at-Arms.

Mr Tambo: Thank you very much. So if the House calls, and I am sure that ICT could direct the House as well. At the time, Hon Chirwa was on the podium for an amount of time raising to the Speaker the concern that the Parliamentary Protection Services had ejected Members of Parliament the day before were males and as a result of this female Members of Parliament were sexually harassed by members of the Protection Services of Parliament because males were deployed to physically handle female members of Parliament. So she was on the podium on that basis. And when the Sergeant-at-Arms was approaching, I presume Hon Chirwa, I stood up to interact with him on that basis that, look, there has been a ruling that Hon Chirwa must be removed by the Protection Services. But we cannot have another situation or repetition where a female Member of Parliament is removed by a male member of Parliament. That was my interaction with him. And that was the only conversation we were having. He then retreated to the Speaker's direction, presumably, I thought, to inform her that we have this objection, that male members of Protection Services cannot come in and remove Hon Chirwa. So to the best of my recollection, the security members of the Parliamentary Services were called in to remove Hon Chirwa – or the Sergeant-at-Arms was sent to Hon Chirwa to ask her to be removed and then they would call the Protection Services. I then said to Mr Xaso that we have an objection that the repetition of the sexual harassment must not happen again, which is constituted by male Members of Parliament removing a female Member of Parliament. That was our interaction, and he retreated on that basis.

Adv Ka-Siboto: Yes, and you can, in fact, see yourself in the video doing this [lifting his arms in surprise] when the Speaker says ‘Hon Tambo, you too will be evicted by the PPS’. Why did you do this [arms raised in surprise]?

Mr Tambo: So I raised my arms at the time because I had not been speaking, I had not been standing, I had not been making any interaction with the Speaker. To my recollection, I was actually on my phone, and then she mentioned that I must also be removed from the House. So I raised my hands in both disbelief, but also asking what is it that I have done that warrants my removal from the House?

Adv Ka-Siboto: Is that because what you would have said to the Sergeant-at-Arms, which seems to be the only thing you had done that related to you being evicted? So is that because what you said to the Sergeant-at-Arms was innocent, and there was nothing that you would have done that would have warranted your eviction?

Mr Tambo: In my understanding, yes, because he did not depart to me saying that I am actively obstructing him, or I am not allowing him to execute his duties. He took the message I was saying to him. So my understanding was that he went to revert that to the Speaker. So part of my confusion was that as well as to what exactly was reported to her that might have been warranting her to call for my removal, because prior to that, I had not been on the podium, I have not been speaking, I had rose on a point of order, I had not defied her ruling. I was simply told I was going to be removed after that interaction, which I would regard as civil with the Sergeant-at-Arms.

Adv Ka-Siboto: Yes, let me then read Rule 73(4) because you are talking about removals, and your concern with a male person attempting to remove Ms Chirwa. That was a concern you had raised before; she, in fact, had raised it on the day as well. [Rule] 73(4), Chairperson and the Committee, reads as follows: “If a Member resists attempts to be removed from the Chamber in terms of sub-rule (1) or (2), the sergeant-At-Arms and the Parliamentary Protection Services may use such force as may be reasonably necessary to overcome any resistance.” I want to re-read and break it down for you because my question will be based on this. So I want you to listen to me carefully. It says if you are failing to leave the Chamber based on 112, and the part I would like to ask you about is this, “the Sergeant-at-Arms and Parliamentary Protection Services”, so in other words, not just PPS by the Sergeant-at-Arms him or herself, “may use such force as may be necessary to reasonably necessary to overcome any resistance.” So in other words, the Sergeant-at-Arms himself has powers to use force, not so?

Mr Tambo: I would agree with that interpretation, Chair.

Adv Ka-Siboto: And would you have known what mechanism the Sergeant-at-Arms would have used to remove Ms Chirwa?

Mr Tambo: At the time, no. To give context, the approach of a male figure in that emotive moment where female Members of Parliament were raising the concern of sexual harassment, would naturally, I think, trigger an intervention say that can we have female Members of Parliament approaching… I mean, female members of the parliamentary staff or Protective Services approach a female Member of Parliament considering the concern that was being raised at the time. So I think I must give that context to my answer as well.

Adv Ka-Siboto: Yes, and if the Sergeant-at-Arms is empowered in terms of [Rule] 73(4) to use force as an alternative means, would you have known whether the Sergeant-at-Arms would have used force or just words when trying to remove Ms Chirwa? Would you have known that?

Mr Tambo: With my understanding of the Rules, I would not have known which discretion he would have used at that time. I would not have been able to understand that.

Adv Ka-Siboto: And your concern though, was that he might use force because he is empowered to?

Mr Tambo: Yes, according to the Rules he has that power, he was approaching a female who was raising a matter of sexual harassment relating to removal and force, and he was approaching at that time. So the interpretation could have been that he will either use words or force as he is empowered by the Rules.

Adv Ka-Siboto: Yes. Had the Speaker not directed that only females are to attempt to remove other female Members of Parliament?

Mr Tambo: After the caucus of the EFF in Parliament had raised that concern, yes, she did.

Adv Ka-Siboto: Yes, and of course, I do not believe there is any dispute here, the Sergeant-at-Arms was actually a male.

Mr Tambo: To our understanding, yes, the Sergeant-at-Arms was a male.

Adv Ka-Siboto: I just want to ask you this. You would have been present as well when I had made the point that you had said the Speaker only recognises ANC members. Do you recall that?

Mr Tambo: Yes, I do, Chair.

Adv Ka-Siboto: If you can go to bundle 280, Chair and Committee Members. There you say, Mr Tambo, at the second last paragraph, “Speaker, you are only recognising ANC speakers, and you are out of order. I have been raising this point of order here. You are recognising ANC members in sequence. What is that?” Do you recall saying that?

Mr Tambo: Yes, I do.

Adv Ka-Siboto: And you would have heard me say to Mr Xaso that it is strange that on many occasions before an EFF member speaks they have to contend and contend with the Speaker or speak without being recognised, whereas with ANC members, for example, they seem to be no instances where she did not take their points of order. Do you remember that line of questioning of Mr Xaso?

Mr Tambo: Yes, I do.

Adv Ka-Siboto: And I specifically made reference as an example of when that happens. Do you recall that?

Mr Tambo: Yes, I do recall that.

Adv Ka-Siboto: Is it then consistent with what you are saying here?

Mr Tambo: It is very consistent with what I am saying. And it is our experience, I would say, in the House in general. The only opportunities we get to speak, due to what I would say is an inconsistent application of the Rules, is if we insist on speaking, because the tendency is to – I cannot speculate what informs that by the Speaker of the House at that time or not – is that numerous speakers of the ANC will be noted in sequence before we are actually noted, and that noting will come after the insistence of members of the EFF to be recognised. That type of assistance comes in the form of the one that is cited in the Hansard at 280 as well. It will even go further, and again, I will not speculate as to what informed this as well, of an inclusion, perhaps, of one or two members of the official opposition, but the insistent ignoring of members of the EFF of Parliament from speaking when taking platform, I would say contributes to the disorder that arises in the House. And it is something that I have raised with the Speaker. Unfortunately, I cannot recall whether it was on this occasion that disorder is actually inspired by the fact that we are constantly made to insist to speak rather than be noted because of the consistent noting of members of the ANC caucus of Parliament.

Adv Ka-Siboto: Yes. I had suggested to Mr Xaso that the reason that the sitting collapsed as it did was because of these inconsistent applications of the Rules. And I suggested also that she had not dealt appropriately with the issue of muted microphones, and Mr Xaso had said, ‘Well, the Speaker had ruled on it. That is why the EFF member was sanctioned for persisting with the issue of the muting of mics’, and I think it was Ntlangwini MP. If you go to page 282 of the same Bundle, Hon Letsie – and the only reason I am going to mention his political party is to illustrate the point. It matters in this context. It is not necessarily to target an ANC member. But, Letsie MP, who is from the ANC had said this as well, “Thank you very much, Speaker. I said that there are Members who are raising their hands on the platform, and you are not recognising us when you raise them to the point where some Members…” and then there is an interruption in what he is saying. “The Speaker gets agitated and speaks before…” and then, again, the Hansard did not capture what the Member said after that. And then, again, the Member continues, “so, please, rectify that part”, speaking to the Speaker. Was your sense, having sat in that House at the time, that the Speaker consistently applied her mind when taking points of order, over and above what you said earlier? Now, we have an ANC MP who seems to be raising a similar issue. Was your sense that the Speaker ran the House fairly?

Mr Tambo: No, my sense would not be that the Speaker ran the House fairly, particularly with the challenge of the virtual platform, because the issue being raised by Hon Letsie speaks to her inability to run the House effectively in my understanding or appreciation because the virtual platform constitutes itself as part of the House. It is the House in itself. We are always taken through the Rules at the beginning of all sittings that the virtual platform is part of the parliamentary precinct. But the virtual platform is always secondary in consideration of the noting of hands. And one of the most egregious transgressions I would say happens at the virtual platform is the uniform muting of all Members of Parliament, even though a transgression might be committed by one Member of Parliament, which I think constitutes a sanctioning of a large voice of the democratic outcomes of South Africa. So I do not think she is effectively able to run the House in relation to the concerns that was being raised by Hon Letsie as well, because the virtual platform is not treated with the characterisation it has and the dignity and respect it should be afforded as according to the Rules of the House.

Adv Ka-Siboto: Yes. My last question to you is, did you intend to obstruct the Sergeant-at-Arms from performing his duties?

Mr Tambo: No, I did not intend to obstruct the Sergeant-at-Arms from exercising his duties. And I certainly do not think words would have been able to achieve that, if that was my attention. I do not think that is something that is achievable through the use of words because my words cannot block all corners of the House.

Adv Ka-Siboto: And a follow-up question to that. The Initiator, of course, has an option to call the Sergeant-at-Arms to give his version of things. And of course, I mean, you would not probably know, but if an Initiator makes a claim and brings charges, they bear the onus of proving it using facts and evidence. If the Initiator were to call the Sergeant-at-Arms, would you confirm your version of what you said to him?

Mr Tambo: Absolutely. And perhaps the Initiator should be encouraged to do so. If the Sergeant-at-Arms is a person of integrity, which I assume he is, I think the version that I have submitted today would be corroborated by the Sergeant-at-Arms himself.

Adv Ka-Siboto: Thank you, Mr Tambo. I have no further questions, Chair.

Chairperson: Thank you, Adv Ka-Siboto. Was that the only witness, or are you continuing?

Adv Ka-Siboto: What ought to happen now is for the Initiator to cross-examine Mr Tambo, I will then re-examine him, and perhaps, there might be clarity-seeking questions to Mr Tambo.

Chairperson: Okay, so I think the staff will be tracking the time that you used. Like I indicated, for your witnesses you will have three hours. As we go to the Initiator, Adv Magona.

Adv Magona-Dano: Thank you, Chair.

Chairperson: The staff must also help us with tracking the time you will be using for re-examining the witnesses. Thanks.

Adv Magona-Dano: Thank you, Chair. Good afternoon, Hon Tambo. I will ask a few questions on your version just now. From the video, am I correct, you shifted chairs with Hon Chirwa after an order was made for her to be moved? Am I correct?

Mr Tambo: It is correct that I shifted chairs. Yes.

Adv Magona-Dano: Did I understand you correctly as well that you had an interaction or you spoke with the Sergeant-at-Arms stating that the ruling was made but it cannot effected by a male, it must be a female. Am I correct?

Mr Tambo: I would not say that I said…

Adv Magona-Dano: Sorry, Sir. Proceed.

Mr Tambo: I would not say I said it cannot be affected by a male, but I had an interaction with the Sergeant-at-Arms that Hon Naledi Chirwa is rising in an issue of sexual harassment by members of the Parliamentary Protection Services, and therefore, it is inappropriate for a male to enact an order of removing a female, be it physically, on the form that we had seen on the day before. So, yes, that is what I said.

Adv Magona-Dano: So it would be inappropriate for him as well as a male to effect that order?

Mr Tambo: I do not recall saying him, per se. I said it would be inappropriate for a male to remove a female Member considering what Hon Chirwa was standing at the time, and the experience that was being expressed by male members of the Protection Services enacting removals of females.

Adv Magona-Dano: Am I correct to understand that the Sergeant-at-Arms went towards Hon Chirwa, who was now on your right hand side, if I can put it that way, to effect an order made by the Speaker? Are you with me?

Mr Tambo: Yes.

Adv Magona-Dano: The order was for her removal from the House.

Mr Tambo: Yes, that is correct.

Adv Magona-Dano: It would make sense then that your concern which you were raising the interaction included the Sergeant-at-Arms, as a male, not to effect that order. Not that you said it to him that he should not. It would make sense in that fashion?

Mr Tambo: It would make sense, yes, to say I was advising him that we cannot have a male enforcing an order to remove a female. It would be logical to say that, yes.

Adv Magona-Dano: Now, under what authority were you acting on to interact with the Sergeant-at-Arms who was effecting an order by the Speaker?

Mr Tambo: So in my understanding, I would not need any authority to interact with employees of Parliament. So my interaction did not constitute an order, it constituted exactly what you are saying, an interaction. So there is no provision, to my understanding, that prohibits us from interacting with the Sergeant-at-Arms, the people who pass around the mics, the cleaners, the security guards. So I do not think authority in my understanding has affected my interaction with him.

Adv Magona-Dano: In fact, after the interaction the Sergeant-at-Arms could not pass through you. Am I correct? That was on the video.

Mr Tambo: I do not think that is correct. I am big, but not that big, I would say. I am not sure that is correct.

Adv Magona-Dano: What I mean is that it did not happen. He did not proceed with removing the Member on the video.

Mr Tambo: Yes, he did not proceed. He retreated, for reasons known to him.

Adv Magona-Dano: It would not, therefore, be far-fetched that what you whispered to the man had an effect of prohibiting from executing the order of the Speaker.

Mr Tambo: I think that would be delving into the realm of speculating what he decided in his mind after we spoke. I am not in a position to make that speculation because if there was an intention on my side – if you would allow me – to prohibit him. I think I am more than capable of doing so physically, which it does not from the video evidence and from my recollection occur. So I do not think it would be correct.

Adv Magona-Dano: In fact, that is what I will argue, Mr Tambo, to show that what you did was a manner of blocking him from effecting the order of the Speaker. That will be my argument at a later stage.

Mr Tambo: Alright.

Adv Magona-Dano: You can comment, if you want to.

Mr Tambo: No, that is fine. You are welcome to make that argument and I will make my assessment based on when you reach that point.

Adv Magona-Dano: Alright. Before I proceed, Hon Chair, I need to answer to nature, which is calling. Can I please have a few minutes relief break? Then I will proceed shortly thereafter.

Chairperson: Alright, Adv Magona. Hon Members, we will give you twenty-five minutes, and at twenty-five past we will continue.

Adv Magona-Dano: Thank you, Chair.

The Committee adjourned for a twenty-five minute break.

Chairperson: The Advocate will indicate when she is back, Hon Members.

Adv Magona-Dano: I am just walking in, Chair. Thank you. I will let you know just now.

Chairperson: Okay.

Adv Magona-Dano: We are all here now, Chair. Can we proceed?

Chairperson: Yes, please proceed, Adv Magona.

Adv Magona-Dano: Chair, or rather, Mr Tambo, just to seal this point with regards to the intervention or your interaction with the Sergeant-at-Arms. Chair, am I going to request that we play the same video clip that we dealt with just now. It should be easy to find for IT. If Hon Tambo could also, again, just view it. And then I will ask a few questions about it.

Chairperson: IT, please assist.

Adv Magona-Dano: Right there. Alright, Hon Tambo, we saw you right there. If you use your finger I will take it you were saying no to him, or denying him from doing what he wanted to do? Would I be correct to assume that?

Mr Tambo: I was saying that no man is going to remove a female Member of Parliament, not in verbatim, but I recall that interaction very clearly. I said no male member from the PPS would remove a female Member of Parliament.

Adv Magona-Dano: I put it to you that you had no authority to do that.

Mr Tambo: I do not think it is a matter of authority. It is a matter of engaging with a staff member of Parliament. And the fact that, one, the chair has made a ruling on male Members of Parliament enacting rulings of removing female Members of Parliament – not male Members of Parliament, male staff members of Parliament enacting rulings of removing female Members of Parliament. So interactions with staff members on rulings of the Speaker on what the person who is a Member of Parliament is on the podium about, I do not think are matters of authority. They are matters of interaction with the staff members, in any way that we interact with any other staff member of Parliament. I think authority comes into question because there is an attempt to juxtapose my interaction with the Sergeant-at-Arms with the interaction of the Speaker, and there was no attempt for me to assume those duties or roles. But to suggest there is a prohibition of us interacting with staff members of Parliament is something that I do not think there is any provision in any way.

Adv Magona-Dano: Okay, Hon Tambo. Just to get back to my question, perhaps, put differently. There was an order from the Speaker which the Sergeant-at-Arms was effecting. Am I correct?

Mr Tambo: Yes.

Adv Magona-Dano: You had an interaction with him prior to him effecting it, because as you were saying, there was no way you were going to allow a male member – in my own words – to deal with a female Member because of what had happened?

Mr Tambo: And an existing…

Adv Magona-Dano: Sorry?

Mr Tambo: And a standing and existing order/ruling from the Speaker that no female Member of Parliament must be removed by a male PPS or staff of Parliament. So are two instances, it is the instance of what had occurred before and the ruling of the Speaker on the matter.

Adv Magona-Dano: Alright. The Sergeant-at-Arms is acting on the instructions of the Speaker. Are you with me there?

Mr Tambo: Yes.

Adv Magona-Dano: The Sergeant-at-Arms does not have powers that he can simply on his own willy-nilly effect in a House that is sitting. Are you with me there?

Mr Tambo: Yes, I am.

Adv Magona-Dano: In fact, it is confirmed by Rule 61 with regards to the Sergeant-at-Arms when dealing with removing visitors. It begins when instructed by the presiding officer, can he do so. Are you with me there?

Mr Tambo: Yes, I am with you.

Adv Magona-Dano: So, would I then be correct that he was effecting an instruction from the Speaker, whether it was wrong or right, which you then interfered with because of the reasons you have given.? I do not argue with that. Correct?

Mr Tambo: We can say that, but we can also say, in conjunction with that, that it was in contravention of a ruling she had made on the exact same day. So, that is also correct. So, those two things are correct.

Adv Magona-Dano: Correct me if I am wrong, any ruling made that is not being followed, you are supposed to raise it in the House with the Speaker, am I correct?

Mr Tambo: Yes, you are correct.

Adv Magona-Dano: At that stage, you are interfering with the Sergeant-at-Arms. You did not say ‘Speaker, X, Y, Z. Please, stop the Sergeant-at-Arms from doing this because it would not be right.’ You did not raise it as a point of order; sorry to use the parliamentary words.

Mr Tambo: Yes, so there is no interference. So the constant use of the word interference instead of interaction is a mischaracterisation that I cannot let slide. So I did not interfere with anything. I interacted with the Sergeant-at-Arms, and ours was an immediate point of interaction, because in his approach to contravene a ruling of the Speaker to effect another, he has to interact with me, which is why we interacted. So on his route to effect his order, which was in contravention of an earlier ruling, he interacted with me and that is what has happened between the two of us.

Adv Magona-Dano: Sorry, Chair, I was just interacting with a colleague. Just to also close this point really; am I correct in having viewed these videos several times when the Sergeant-at-Arms is utilised by Parliament or the Speaker there is always a process where a Member is asked to withdraw, and then the Member fails to withdraw. I may be skipping the steps, but, ultimately, the Sergeant-at-Arms is called in. What he does not do – this is what I have seen from the video, so you must correct me – is touch an individual. He simply comes, bows before him with hands, in fact, I have seen him put together speaking to a Member as if pleading to the Member to leave. That has been how the Sergeant-at-Arms interacted with the Members, am I correct?

Mr Tambo: We have to be specific as to whether we are containing that to this incident or do you mean in general, historically?

Adv Magona-Dano: Sorry, this incident and the various Members who were ultimately moved out of the House. The Sergeant-at-Arms’ procedure is to bow next to a Member, whisper something, with hands put together, whisper something back to the Speaker, and only then do we hear that the PPS must come in. Am I correct to understand that was the procedure?

Mr Tambo: I would know if it is procedure or norm, but I have seen that happen, yes.

Adv Magona-Dano: Alright, let us move to the next point. you were asked with regards to… Oh, yes. I am so sorry, Chair. The last point I wanted to emphasise on that video. If it can play with the audio, as I wanted the audio. Mr Tambo, if you can hear the voice of the Speaker where she is stating “Thank you very much, Hon Chirwa for leaving the House”, and then she makes a further statement addressing you in a very high toned voice. Can the IT, Chair, just continue to play that video, just before the Sergeant-at-Arms left you going back to the Speaker. Sorry, IT, just a few minutes back. As the Sergeant-at-Arms is reaching him, then we hear the Speaker there, Chair. That is the point I want to make. She asks ‘What are you doing, Tambo?’ Mr Tambo, Hon Chirwa is on your left there. Am I correct?

Mr Tambo: Yes, yes, yes.

Adv Magona-Dano: Yes, alright. Let us proceed, IT. Just move it a bit forward. I really do not want to derail the proceedings. There we go. There it is. Thank you. Once more, my argument would be that it was seen by the Speaker that you were obstructing, Mr Tambo.

Mr Tambo: I do not agree with that.

Adv Magona-Dano: We are moving now to another point. At bundle 282, you would recall Letsie was given an opportunity to speak. This is when my colleague was asking you to confirm that ANC members, which you have raised, were being favoured more than the EFF members, correct?

Mr Tambo: Yes.

Adv Magona-Dano: Yes, but at 281 and 282 what I do see there is that, yes, Hon Letsie is given the opportunity to raise the point of order, however, in the midst of it, Hon Shivambu also raises a point of order, and the Speaker grants him instead of Letsie, who then also complains. What I am trying to prove is that there was no favouritism here. It was a matter of discretion by a Speaker on the issues and, perhaps, the atmosphere of the House at the time. If you go to 281 and 282 not to lose you there, Hon Tambo. I will also just read quickly also for the Members. I will start at the top where you say, “I have been raising my hand. You are out of order, Speaker”, and then the Speaker says, “Hon Letsie, Hon Shivambu”, and then Hon Letsie says, “No, it is me, Speaker. You have not…”, then it is inaudible. And then Hon Tambo also steps in, “Now there is a zombie floating on our screens”, the Speaker, “No, you are not recognised.” Anyway, Mr Letsie now says, “No, I am recognised, Speaker.” Hon Shivambu says, “On a point of order, Speaker. On a point of order.” And then the comes in and says, “You are recognised, Hon Shivambu.” Once again, what I am trying to say is Hon Letsie was recognised by the Speaker prior to Hon Shivambu. But before he could even speak, Hon Shivambu was then recognised when he raised a point of order. What I mean is this was a Speaker who was trying to handle the circumstances that she found herself with a very excited House. Would you agree with me?

Mr Tambo: No, I would not agree. And I think one can be given to that assumption if we extract two pages of the Hansard. But if we go much more previously on the Hansard, you will see where the frustration of the noting of sequences of ANC Members of Parliament stems from. So if you can begin from even 278, or even prior to that in the Hansard, the frustration of the noting of members of the ANC in Parliament in sequence cannot be located within two pages of the Hansard So I think that frustration needs the context of reading many more preceding pages of those proceedings.

Adv Magona-Dano: And, Hon Tambo, am I correct that before us today there was not any complaint from you, or from anyone else with regard to the tendencies of the Speaker? The rules allow you to participate.

Mr Tambo: … or in the House on that day?

Adv Magona-Dano: Sorry, Sir?

Mr Tambo: Do you mean, there was no complaint raised by us in a forum of this nature or in the House?

Adv Magona-Dano: Okay.

Mr Tambo: I am not sure if I am audible because I am seeking clarity.

Adv Magona-Dano: Yes, there was just a moment there where I lost a part of your sentence. Now you are audible. Thank you so much.

Mr Tambo: Can I respond? Can you hear me now?

Adv Magona-Dano: Yes, I can hear you. I think you did respond, unless you want to add something.

Mr Tambo: No, that is fine.

Adv Magona-Dano: Okay. There was a question asked by my learned colleague also.

Adv Ka-Siboto: Hi. Sorry, just a moment. Sorry, Chair, I just want to clarify. I think there seems to be a misunderstanding between the Initiator and Mr Tambo. Mr Tambo is asking whether the question relates to the House on the day or you are saying in general they have never raised complaints. He was seeking that clarity before he responded.

Adv Magona-Dano: Yes, complaints in general.

Mr Tambo: Yeah, generally, we always do, as I did, as you have outlined in the Hansard, raise the bias that we perceive from the Speaker in terms of how she notes people who raise points of orders and who raise concerns in the House.

Adv Magona-Dano: So you raised on the day in the House? You did not make any complaints about a particular Member’s conduct outside of the House to the various structures available? Perhaps, I should put it that way.

Mr Tambo: A particular Member’s conduct or the Speaker’s conduct?

Adv Magona-Dano: The Speaker’s conduct.

Mr Tambo: I would have to check. To my recollection now the only avenue we utilise to raise a concern to the Speaker on the Speaker's conduct was that it did open a case with the South African Police Services (SAPS), but I would have to confirm. I think we did raise a complaint either to the Rules committee or the Chief Whips Forum, regarding the conduct of the Speaker on that day. And it would have been part and parcel of our contention for that there was sexual harassment over the proceedings of those two days by members of Parliamentary Protection Services against Members of Parliament, and also part of the inconsistent application of the Rules. But I cannot confirm that now. But I think we may have. The only one I can confirm is that a case was opened with SAPS.

Adv Magona-Dano: Okay, thank you. Further, you were ordered by the Speaker at 507, if you have it with you there, to take your seat. You were raising a concern about other Members, but then there was an order by the Speaker, “Take your seat, Hon Tambo.”

Mr Tambo: This is on paginated 507?

Adv Magona-Dano: 507. Sorry, Sir.

Mr Tambo: I am sorry, are you saying 507?

Adv Magona-Dano: 507 and then it goes on to 508.

Mr Tambo: Okay, just give me a moment. Yes, I see that.

Adv Magona-Dano: The Speaker numerously asked you to take your seat, and you are stating your case, “No, it is wrong. What you are doing is wrong”, “Thank you, Hon Tambo. Take your seat. We will proceed.” And then ultimately Hon Shivambu comes in. But, again, you are asked to take your seat, at the bottom of page 508. Am I correct there?

Mr Tambo: Yes, you are correct.

Adv Magona-Dano: This, I understand, was an indication that you did not heed to the order of the Speaker. You remain standing when she asked you the first time, you remain standing the second, the third and, I think, up until the fourth. Am I correct?

Mr Tambo: You are correct, on the basis of the Hansard. Yes.

Adv Magona-Dano: Am I correct to understand between 507 and 508 – this only concerns you, to be fair – I would say the business of the House stood still, meaning what we know now is that the President was there on the 10th of June to reply to questions. He could not speak at that time; when you were being asked to sit down, you did not sit down, you were asked again. So the business of the day could not be proceeded with.

Mr Tambo: I would not say business day could not be proceeded with because points of orders, to my understanding, are allowed in terms of the Rules. So to my appreciation of the Rules, points of orders can and will form part of the business of the day as and when they arise. That would be my understanding.

Adv Magona-Dano: And I said to be fair to you, I am not going to ask you about other people. But when you were being addressed by the Speaker, at the time between 507 and 508, nothing could happen because the Speaker's attention was drawn to you and asking you several times to sit down. This is where I am saying at that stage, there was no point of order being dealt with, but only you being ordered to sit down. In regard to the business of the day could not proceed.

Mr Tambo: I would not agree with you. My point of order related to the participation of Members of Parliament with the proceedings of the day, as you would see that Members on the virtual platform were not being allowed to participate. And that was my point of order. So I would not say it necessarily was a stopping of the business of the day, but the highlighting to the Speaker, to her reluctance, that Members of Parliament were unable to participate in the business of the day because they are on the virtual platform. So I am not sure we will find each other there.

Adv Magona-Dano: Perhaps, let me put it differently. When you raised your point of order, a ruling was made by the Speaker when she said ‘Sit down.’ Are you with me there?

Mr Tambo: I am with you there.

Adv Magona-Dano: At 507 we can see it there.

Mr Tambo: Yes.

Adv Magona-Dano: But then you did not sit down. She continued to ask you to sit down because you persisted with what she had already ruled on. You were saying ‘You are ill-treating people’. She had already said ‘Sit down, Hon Tambo’ but you are continuing saying ‘You are ill-treating people on the virtual platform. You are wrong. You are wrong.’ My point, again, during this period, your interaction with the Speaker who has made a ruling on your point of order, the business of the day was hamstrung.

Mr Tambo: I would not say the business of the day was hamstrung at all. Also, the interaction with the Speaker with her saying I must sit down, and her refusal without any implementing of any rule to accept my point of order, falls within the same context of the frustrations alluded to earlier that there is a deliberate or perhaps ignorant decision to not note members of the EFF in Parliament. So it all falls within that context. So that interaction must be read within the context of that frustration of certain Members of Parliament not having their points of orders noted. And again, it cannot be a hindrance of the business or hamstringing of the business of the House to utilise the provision of the Rules of the House. So to raise a point of order, there is no time limitation on it, in reference to the Rules. So she can make a ruling on a point of order at five minutes past twelve and at seven minutes past twelve I can rise on a point of order again. It must be read within that context. There are no provisions in the Rules prohibiting points of order to limit points of orders, or anything of that nature. So that is the context within which that interaction is happening. And to read it outside of that context will, of course, result in certain presumptions being made. So I do not think I agree.

Adv Magona-Dano: Okay, I will leave that point for argument. I want to take it a little bit further from another angle. I think it was read that Rule 92, if we start at sub-rule (4) and (5)... It starts at sub-rule (1) rather: “A Member may raise a point of order at any time during the proceedings of the House in terms of the procedure prescribed in Rule 66 by stating he or she is raising a point of order.” Fine. We move to sub-rule (4) now. Are you with me, Hon Tambo? Hon Tambo? I sensed that I was probably losing you now and then. Chair, is he there?

Chairperson: His mic is open. We might have a glitch with our network. I am looking at our time. Advocate, as and when Hon Tambo tries to come back on the platform, according to the programme we are supposed to wrap-up at four o’clock. I do not know if you still have more questions.

Adv Magona-Dano: It will be just a few, Chair, from this point.

Chairperson: Okay, I will ask our Members to give you that indulgence to deal with Hon Tambo. Hon Tambo, are you back?

Adv Ka-Siboto: Chair, perhaps, whilst we are still waiting for Mr Tambo to confirm that he is back, I had a discussion with… Sorry, with your indulgence first, Chairperson. Can I address you?

Chairperson: Okay, please proceed.

Adv Ka-Siboto: Thank you, Chair. I had a discussion with the Initiator during the interval and I advised her that I do not intend to call any other Member who has been charged. Our agreement was that if this House agrees that we, perhaps, conclude the examinations and questions today. We then adjourn for tomorrow to prepare our arguments. We then come back on Thursday to argue and, perhaps, this House deliberates and rules on Thursday, which would then meet so we do not have to sit on Friday and Monday. If the Committee and Chairperson are so inclined, I would then ask that, perhaps, we do not adjourn at four o’clock if we are agreeable. I will ask Mr Tambo probably four or five questions, which should not take more than ten minutes. Once we have done that, and of course, if the Committee Members have clarity questions – I do not know how long they would take. And, perhaps, at that point we will finish so that we do not have to adjourn, come back tomorrow to just sit here for thirty minutes and then leave again. Perhaps, that is something you could consider, Chairperson. Perhaps, you could invite the Committee to give their preferences as well. And if you agree, then we will just finish today. Thank you, Chair.

Chairperson: Thank you, Adv Ka-Siboto. That will help. Let us just deal with Mr Tambo. I think he is back on the platform. And I agree that Hon Members we give the legal team that indulgence that we question the witness today. I know that Members are packing as we speak and everybody is still on duty. Can we proceed with Adv Magona. Mr Tambo, are you back?

Mr Tambo: Yes, apologies about that. Load shedding.

Chairperson: Thank you so much.

Adv Magona-Dano: Thank you, Mr Tambo. Just to wrap-up the response to the order made by the Speaker for you to sit down. I was about to read Rule 92 – I have read a bit of Rule 92(1) – but I am skipping to sub-rule (4), “The presiding officer may, at his or her discretion, allow Members to address the presiding officer briefly…”

Mr Tambo: Sorry, Chair. Advocate, I think I missed your opening part after you said thank you. I am just struggling a bit.

Adv Magona-Dano: Okay. Can you hear me now?

Mr Tambo: Yes, I can hear you now.

Adv Magona-Dano: Okay, I am wrapping up this part about the points of order being raised, and the ruling made by the chair, especially when she then told you to sit down, even though you raised a point of order. Rule 92(4) states that: “The presiding officer may, at his discretion, allow Members to address the presiding officer briefly on a point of order that has been raised.”Are you with me?

Mr Tambo: Yes, I am with you.

Adv Magona-Dano: Okay, number five: “The presiding officer must give a ruling and may give his or her ruling or decision on the point of order immediately, or defer the decision to the earliest opportunity thereafter by way of a considered ruling.” So this for me and this is what I will argue, that there was a ruling made to your point of order, but you disregarded her authority by not sitting down continuously after she asked you. That is what I will argue in regard to the point of order that you had raised.

Mr Tambo: Okay.

Adv Magona-Dano: Any comments?

Mr Tambo: No, no comment at this stage.

Adv Magona-Dano: Just lastly, [Rule] 92(11) also states that “The presiding officer’s ruling on a point of order is final and binding and may not be challenged or questioned in the House.” So whether you were happy or not with what she did, she made a ruling, I put it to you, and you disregarded it. What is your comment on that?

Mr Tambo: I am not sure ‘Sit down’ is a ruling on a point of order that has been brought substantively. So, perhaps, let me put it this way. I raised the point of order, and I was able to outline that point of order in that it related to the participation of Members on the virtual platform, and she said ‘Sit down’. The interpretation of that as a ruling on my point of order, I think, is something that is debatable, because it did not address my point of order. And you are correct, whether I am happy or not is not the question. But I am not sure whether ‘Sit down’ constitutes a ruling on a substantive point of order.

Adv Magona-Dano: Then you also had no authority to challenge whether ‘Sit down’ is a ruling. You ought to have just sat down. That is what I am putting to you.

Mr Tambo: I am challenging it here. Whether me not sitting down there also constitutes a challenge, I think, is debatable but I am challenging it here whether it constitutes a ruling or not. I did not say that you said ‘Sit down’ is not a ruling.

Adv Magona-Dano: Okay, as I draw to my last question. There was much said about the presiding officer asking you to leave. Is it your case that you were not asked to leave the House?

Mr Tambo: No, I was told that ‘You may also leave the House’, if I remember the words verbatim. So…

Adv Magona-Dano: So, Hon Chirwa… Sorry, sorry. Yes?

Mr Tambo: Yes, I was not requested to leave, to my recollection. The first instance or interaction with me was ‘You may also leave’, and that resulted in the members of the Protection Services interacting with me.

Adv Magona-Dano: Okay. You also went through Rule 73, how you understood what ought to have happened, what the Speaker ought to have followed, the procedure itself. Might I take you to Rule 73(5), which reads as follows: “No Member may, in any manner, whatsoever, physically intervene in, prevent, obstruct or hinder the removal of a Member from the Chamber in terms of these rules.” And I am going to move to sub-rule (6), “Any Member or Members who contravene sub-rule (5)”, which I have just read, “may, on the instruction of the presiding officer, be forcibly removed from the Chamber and the precincts of Parliament forthwith.” Are you with me there, Mr Tambo?

Mr Tambo: Yes, I am.

Adv Magona-Dano: So, what I am putting you… I have shown you how the Speaker raised her voice, shocked at what you are doing. ‘What are you doing, Hon Tambo?’ We saw on the video, as you said, you were interacting with the Sergeant-at-Arms. You waved your one finger, showing your hand that he cannot proceed any further beyond you. In my view, you were breaching [Rule] 73(5). What do you say there?

Mr Tambo: I would disagree with that, and with assertion that my hand gestures constituted my prevention of the Sergeant-at-Arms enacting whatever he was supposed to enact. I would disagree.

Adv Magona-Dano: Okay, you disagree.

Mr Tambo: Yes.

Adv Magona-Dano: It was your case, if I understood you correctly, that you interacted with him, bringing it to his attention that this was a female Member, and there was no way you were going to allow males to remove a female Member. That was your case, correct?

Mr Tambo: So the words you are utilising are very instructive, and they are not the words I utilised. So to say I said, I would not allow; to say my hand gestures were an attempt intentionally of me to obstruct the Sergeant-at-Arms is not correct, in my understanding. My interaction has nothing to do with allowing the Sergeant-at-Arms to do anything or disallowing him to do anything. It is an interaction to alert him that this Member is a female Member of Parliament, the Speaker has already said no female Member of Parliament will be removed by a male staff member or Protection Services of Parliament. So my interactions, I think, you are inferring on the meanings that I did not assert. So I would disagree.

Adv Magano-Dano: I will argue the point, Mr Tambo, that there was no need for Section 73(1), (2) and (4) because you contravened Rule 73(5), hence, the Speaker acted forthwith… immediately in terms of [Rule] 73(6), to order that the two of you must go out of the House immediately, so that there was no need for the Sergeant-at-Arms as well as the PPS process that usually takes place, because you immediately contravened a very important rule, 73(5). That will be my argument before the Committee. What do you comment to that?

Mr Tambo: I think it is a very, very dangerous assumption, because the onus to prove that that is the case would have to be corroborated by the person that I am allegedly accused of prohibiting to execute those duties. And I think the Committee would have to have an interaction, and this forum as well, with the individual I am allegedly accused of prohibiting to execute those duties. So I think it would be very presumptuous and very dangerous to with one’s naked eye to make presumptions on an interaction that was so conclusive.

Adv Magona-Dano: Okay. Lastly, I just want to see if I understand your evidence that you were never asked to leave – is that you what your evidence was?

Mr Tambo: Yes, the assertion was ‘Leave as well’. And then members of the PPS interacted with me, which is why, as counsel had argued, I raised my hands because I had no understanding as to why I was not being asked to leave. I was simply told that I may join the one whose ruling has been made on leaving without having an interaction prior to that.

Adv Magona-Dano: Okay, you were asked to leave after the Sergeant-at-Arms had left you going back to the Speaker, correct?

Mr Tambo: I was told “Leave as well.” I do not think that is a request. I think that is a conclusive interaction. So I was not afforded an opportunity to leave, I was said to join those who were told to leave. Subsequent to that, members of the PPS were deployed.

Adv Magona-Dano: Perhaps, let me go to that point on the record. At 525…

Mr Tambo: Yes.

Adv Magona-Dano: The chair states… There is an interjection if you see the second paragraph at the top. She is talking about physically intervening. Obviously, we cannot finish that sentence. The Speaker states, in IsiXhosa, “Phumani. Phumani nobabini.” Then what is there for you to not understand that you were asked to leave?

Adv Ka-Siboto: Sorry, can I just come in, Chair? I am concerned that if I heard you correctly, Chair you said you are granting an indulgence of an extra thirty minutes. My concern is that there are many other aspects that need to follow after this. The witness has been answering this question, to be quite honest and fair to him. His version is ‘I was not asked to leave.’ The question is being rephrased in different forms and his answer has been persistent. With respect, if the Initiator is not happy with the answer, I am happy for her to argue that. But to ask him the same question over and over. Now, she is making reference to the Hansard and asking what he does not answer about this. He has been saying ‘My version is that I was not asked to leave.’ And the same question is being asked over and over again. I am concerned about the thirty minute limit you have given us, Chair.

Chairperson: Thank you, Adv Ka-Siboto. Adv Magano, we agreed as indicated, and you were about to wrap up then. But, please, consider not asking the same question in different forms, so that we do not step on the toes of Hon Members, after having agreed to indulgence with both legal teams on this matter on your agreement.

Adv Magano-Dano: Thank you. Thank you, Chair. Chair, I think, mine was to put the correct IsiXhosa wording on the record. Perhaps, I can hear Hon Tambo give that answer, and that would be my last question to him, Chair.

Mr Tambo: Chair, there is no ‘nobabini’ in Parliament – nobabini meaning both of you. So when the Speaker makes an instruction to a Member of Parliament to leave the House, or requests to the Member of Parliament to leave the House, they address that Member of Parliament. So ‘Phumani nobabini’ can be part of many of the prerogatives that were uttered by what we regard as the Speaker in the House out of, be it frustration or anger. So, again, I think, I maintain that I was not requested to leave the House as per normal procedure. For one to shout ‘Phumani nobabini’, I think, is quite tell of the attitude and posture that was adopted by the presiding officer on the day, which was completely out of order, unprocedural, and cannot be interpreted as a way of getting the removal of a Member of the House in accordance with the Rules. The phrase, ‘Phumani nobabini’ is not to me an appropriate use of a phrase to request a Member of Parliament to leave due to misconduct. There is no misconduct identified on my part in that phrase. There is no request for me to leave in that phrase. There is no request for me to leave in that phrase. It is uttered haphazardly, with a mixture of irreconcilable utterances which have been captured on the Hansard. So I still maintain that there was no request for me to leave.

Chairperson: Are you done, Mr Tambo?

Mr Tambo: Yes, Chair.

Chairperson: Okay, thank you. Now, I give the opportunity to Adv Ka-Siboto to reexamine his witness.

Adv Ka-Siboto: Thank you, Chair. Mr Tambo, good afternoon, again. I am going to ask you very pointed questions and I want us to assist this Committee and finish this reexamination as quickly as possible. I am going to ask you questions to the extent that you can just answer yes or no. Please, answer yes or no unless, of course, the nature of the question requires you to elaborate. In which case, I am going to ask you to use a sentence or two. Do you understand that?

Mr Tambo: Yes.

Adv Ka-Siboto: Yes, we would have seen the video where Ms Chirwa says, before you have interaction with the Sergeant-at-Arms, you could hear Hon Chirwa saying to the Speaker, and we have seen this when the video was playing, “You are doing it again. You are calling a man to remove a female Member of Parliament.” Do you recall her saying that?

Mr Tambo: Yes.

Adv Ka-Siboto: Is that consistent with what you are saying you were addressing with the Sergeant-at-Arms?

Mr Tambo: Yes, it is.

Adv Ka-Siboto: If I understand you correctly, you say the Speaker herself had ordered that no male staff member would remove a female Member of Parliament.

Mr Tambo: Yes, you understand that correctly.

Adv Ka-Siboto: The Initiator then said to you are supposed to raise issues in the House to the speaker. Do you remember when she said that?

Mr Tambo: Yes, I do.

Adv Ka-Siboto: After the Sergeant-at-Arms had gone back to the Speaker – and as I understand your evidence-in-chief you had expected the Sergeant-at-Arms to communicate your concern to the Speaker. Do you recall that?

Mr Tambo: Yes, I do.

Adv Ka-Siboto: And what happened immediately after the Sergeant-at-Arms had gone back to the Speaker? Did the Speaker engage you? Was there any opportunity to address her?

Mr Tambo: No, if I am not mistaken, it is the point at which there is a ‘Phumani nobabini’ or ‘phumani’ or something like that.

Adv Ka-Siboto: Yes.

Mr Tambo: Yes.

Adv Ka-Siboto: So in other words, when the Sergeant-at-Arms had reported back to the Speaker, immediately you were asked to leave the House?

Mr Tambo: Yes, that assertion of ‘Phumani’ was uttered.

Adv Ka-Siboto: Yes. Not asked to leave the House, but told to leave the House and the PPS was instructed to leave you, correct?

Mr Tambo: Yes.

Adv Ka-Siboto: It was then suggested to you that even the Speaker said you were obstructing. Do you remember when that was said to you?

Mr Tambo: I remember that suggestion.

Adv Ka-Siboto: Does that mean her observation is correct?

Mr Tambo: No, it does not.

Adv Ka-Siboto: That is precisely the point why you are challenging that observation?

Mr Tambo: Yes, I challenged it because I think it is a presumption.

Adv Ka-Siboto: So with respect, the Speaker is not an omnipotent, omnipresent being that is not susceptible to making mistakes, not so?

Mr Tambo: Absolutely.

Adv Ka-Siboto: Therefore, it is of no moment that she observed what you are being accused of?

Mr Tambo: No, what I am accused of is not what actually occurred.

Adv Ka-Siboto: When there is a suggestion that the Speaker, in some instances, gave members of the EFF an opportunity to speak. Do you remember that – and a specific reference is made to Mr Shivambu?

Mr Tambo: Yes, I remember that.

Adv Ka-Siboto: I presume that question seeks to deal with my criticism of the conduct of the Speaker. Does one have to be inconsistent at every location for them to be deemed to be inconsistent and unfair?

Mr Tambo: No, which is exactly why I alluded to the Advocate that to isolate two pages of the Hansard would not give the full picture. And…

Adv Ka-Siboto: Then we are talking… Sorry, did you want to say something else?

Mr Tambo: I would not give a full picture of the inconsistency we are raising to look at that one instance.

Adv Ka-Siboto: Yes, so one instance is being made reference to negate every other instance of inconsistency, not so?

Mr Tambo: I would say so, yes.

Adv Ka-Siboto: Then you are told that the President could not speak when the Speaker was addressing you and asking you to sit. Do you remember that?

Mr Tambo: I remember that.

Adv Ka-Siboto: Could the President speak when anyone else was engaging with the Speaker?

Mr Tambo: No.

Adv Ka-Siboto: So what point is being made with that statement – the President could not speak when you were speaking or being addressed by the Speaker?

Mr Tambo: I think, once again, it is an attempt to isolate a moment to try and paint a certain picture, whereas consistently if proceedings are looked at in a much broader context of the Hansard, we would see that the President did not speak for a period, I would presume, was almost an hour and a half, if my memory serves me correct. And I was not refusing to sit down for that long.

Adv Ka-Siboto: Yes. And then you were told that, and that was the criticism of other Members who came before you, that, well, did you raise these issues outside of the parliamentary process using other avenues. Do you remember when the same suggestion was put to you?

Mr Tambo: I remember that, yes.

Adv Ka-Siboto: Suppose you do not raise the issues after the fact, does that change the conduct of the Speaker?

Mr Tambo: No, it does not.

Adv Ka-Siboto: Your failure to take it up with the Speaker or anyone else, does it have any bearing or does it rectify any misconduct by the Speaker as you allege?

Mr Tambo: No, it does not.

Adv Ka-Siboto: And then…

Adv Magano-Dano: Chair, sorry to intervene. Similarly to what was done to my line of questioning, Chair, might I ask that my colleague be ordered not to ask leading questions? I have kept quiet and we have been hearing the lead questions and suggested answers to questions where the witness is simply left to answer yes or no. Those are leading, Chair. Mr Ka-Siboto must desist from doing so or ordered not to do so. Thank you.

Chairperson: Thanks, Advocate. Adv Ka-Siboto.

Adv Ka-Siboto: Yes, Chair?

Chairperson: No leading questions for reexamination. This is what we agreed to earlier on.

Adv Ka-Siboto: Thank you, Chairperson. I accept the ruling. During the cross-examination questions were asked as to whether you had raised these issues after the Sitting. And for that reason then, we sourced the letters that were written by the EFF. Chair, with your indulgence. These letters were not relevant, up until the point that question was raised. And unfortunately, they do not form part of the bundle. What we will do, with your indulgence, Chair, is to read that letter – it is literally the last question I am going to ask Mr Tambo – that proves that the EFF on that exact day wrote to the Speaker and complained about the process and her conduct. So it answers the question as to whether they do complain after the fact, because that was a concern raised in the Mente, Paulsen and Ceza, ‘Did you complain afterwards?’ We do not see the relevance of complaining afterwards, but it seems to be an issue here as well. So with your indulgence, Chair, I would read that letter. And then, of course, we are going to beg your permission to email those letters to you, the legal team, the Initiator’s legal team, as well as other staff members and other Committee Members. Can I proceed on that basis, Chair, with your permission?

Adv Magano-Dano: Before you decide, Chair, might I just raise an objection?

Chairperson: Alright, we are listening.

Adv Magano-Dano: Thank you, Chair. Putting in new evidence at this late stage of the proceedings is ambushing the case of the Initiator. Chair, we would not have had to go through the whole exercise of asking such questions had the legal representatives of the affected Members played open cards with us as far as what they wanted to lead as their evidence. So in that regard, I am opposed – objecting – to simply allowing at this stage during reexamination, to have them put in new evidence. I would ask or urge the Committee not to allow such, but to only allow my learned colleague to proceed and finalise his reexamination on the issues that are before the Committee. Nothing new. You can make your ruling, Chair. Thank you.

Chairperson: Thanks.

Adv Ka-Siboto: Sorry, Chair. Perhaps, before you do, in considering and making your ruling, Chair, what is important is this; these letters were not relevant until that question was asked. To then prejudice my client by not providing evidence that he did something about it after the fact is clear and unjustifiable limitation and prejudice to him. It is clear that the Initiator will argue that well, they did nothing about it afterwards the same way they did with the Ceza, Paulsen and Mente matter. It is clear that is what they will do. We are saying to be fair to my client, it is only fair that he puts in front of you evidence. Why must it be hidden? And the only reason it becomes relevant is because that question came. It cannot be that we are accused of not providing these letters when they were not relevant and only became relevant when the question was put. Why must that evidence be hidden, Chair? Thank you.

Chairperson: Thank you, Adv Ka-Siboto: Hon Members, you will remember that I also read out to Hon Tambo, the affected Member, before he took [an] oath, that he is able to submit a document or anything that could assist us. At this point, Adv Ka-Siboto is indicating that there was a question asked that nothing was done with the process moving forward. Can we then agree that we see these letters so that we are able to make our… because our main aim here is to have all this information for us to reach a conclusion. Mr Mlenzana?

Mr Mlenzana: No, thanks, Chairperson. Chairperson, I am midway, that term does not exist in law. But take me to be a layperson now that I am midway. Why? Because, one, Adv Ka-Siboto knows, as a matter of fact, that he would have always alerted this House that at one stage he would have some information to sponsor. But now, it is more like an ambush. It is more like an ambush. Now, it is more like a second thought, because no one knows when the emails are going to be crafted, what is the content, and what informs [them]. Here, he may say that the submission is informed by the questions raised, which then mean they were pre-planned. I am not a legal guru, hence, I find myself lingering in the middle of things, particularly because you have said, Chair, that we want to have anything that would assist us to get information that will guide us to the conclusion of this matter. However, even if we allow him to bring the [letters] it should not be the sort of thing that holds the Committee to ransom. But then the bottom line is, Chair, as you are suggesting, let the documentation come but not hold us to ransom – at no stage. Thanks, Chair.

Chairperson: Thanks, Hon Mlenzana. Hon Xaba?

Mr Xaba: Thank you, Chair. Chair, mine also relates to the fact that the Advocate would have known that if there is any other evidence that had to be shared or any correspondence, lawyers do share that information with each other before, and then as it comes we then know what it is that will come. But now we will just have new information? I am also surprised by the fact that the Advocate is indicating he will send to you, Chair, and the Committee. He is not of our services. We know who serves the Committee. Now, he is at the point where he says he will give all of us the information. I find that attitude difficult, for a lack of a legal word. That makes this very difficult, Chair. Perhaps, Chair, what we could then propose is that we treat the letter authentic for information sharing only. Perhaps, we should determine its status.

Chairperson: Thank you, Hon Xaba. Any other Members? None. Adv Ka-Siboto, is this for information sharing or is it new information? Members seek clarity.

Adv Ka-Siboto: Thank you, Chairperson. The first letter I want to refer to, which I will provide to the Chairperson and the Committee and every staff member, is addressed to Ms Mapisa-Nqakula, who is the Speaker of the National Assembly, from the office of the chief whip of the EFF. I will read the important parts. “During the National Assembly sitting held on Thursday, 9 June 2022, to debate the Presidency Budget Vote…”

Mr Xaba: On a point of order, Chair? Apologies.

Chairperson: Thanks. Just hold on, Adv Ka-Siboto. Yes, Hon Xaba?

Mr Xaba: Yes, Chair. I think your question was very clear, and the Advocate is taking into the content. I think he should begin by clarifying the status of the letter. Your question was very clear. Thank you, Chair.

Chairperson: Adv Ka-Siboto, is this new information or information sharing? This is for Members, the staff and everybody to note. Or is it new information that you are bringing to the hearing?

Adv Ka-Siboto: The letters, Chairperson, are letters that were sent by Mr Shivambu from the office of the chief whip of the EFF to the Speaker. To the extent that its authenticity is being disputed, of course, the office of the Speaker can be approached to confirm if this letter was sent to her or not. The simple point I am trying to portray with these letters is as a result of the question that was put to the witness in cross-examination. I am accused of having provided this letter before; when I would have provided it before what purpose would I say I am providing it for? It was not relevant at the time and there was no reason for me to submit the letters then. I restate, the only reason these letters are relevant now is because the question was put to the witness, ‘Did you do anything about the complaints you have? And I am saying that these letters prove that they did something post the sitting of the House about complaints they heard about the Speaker in relation to the Sergeant-at-Arms issue, the inconsistent application of the Rules. And they list all these concerns after the fact and that is the only message I am trying to convey with these letters. Thank you, Chair.

Chairperson: Thanks, Adv Ka-Siboto. That is the response, Hon Members.

Mr Mlenzana: Chairperson?

Chairperson: Yes, Sir?

Mr Mlenzana: Chairperson, perhaps, not to derail the meeting, I personally suggest that we allow these letters, but indicate to [the] Advocate that when our time comes to round up and make our presentation as the Committee, we will then indicate that these letters that he is talking about will be more of mitigation than arguing for the fact. Thanks, Chair.

Chairperson: Thanks, Hon Mlenzana.

Mr Xaba: I support that, Chair.

Chairperson: Supported. Can we then continue, Adv Ka-Siboto? You will then circulate the letters.

Adv Ka-Siboto: Indeed, Chair. Thank you. Perhaps, what I should do is not to read the three letters, but rather submit them to you. What you will see in the letters is that they raised complaints about the inconsistency of the Speaker, and that was written directly to the Speaker from the office of the chief whip. And what you also see is that they complain about the muting of the mics. They also complained about male members of the PPS attempting to remove female Members, notwithstanding the order of the Speaker that that should not happen. And all we simply try to do with those letters is to show that, unlike the criticism that has been coming, ‘But what did you do about it if you are concerned?’, you would have heard that question so many times today, it is to discard or at least answer that question as to whether they did something about it or not. Perhaps then, I should not read them and just leave that point at that point, Chair.

Chairperson: Thank you.

Adv Ka-Siboto: Thank you, Chairperson. Mr Tambo, if these letters do indeed convey what I say they do, when you were asked the question, ‘Did you do anything about it after the fact?’, your answer would be?

Mr Tambo: Yes, we did.

Adv Ka-Siboto: Thank you. I have no further questions, Chair. Thank you very much.

Chairperson: Thank you, Adv Ka-Siboto. Hon Members, I will now allow you to ask clarity-seeking questions. Mr Mlenzana?

Mr Mlenzana: Thanks, Chairperson. Just one little question to Hon Tambo. Good afternoon, brother.

Mr Tambo: Afternoon.

Mr Mlenzana: Yes, yes, yes. No, just one clarity-seeking question. I will pose it and you can either say yes or no. If you want to give more clarity, you can. I take it that you were overwhelmed by frustration due to several reasons, some are now being justified, saw you acting in the manner in which you did on that particular day, which then saw you on the wrong side of the law. I am throwing it to you so that you can correct me. Listening to you, you have always been mentioning this question of frustration because you had not been given a chance and so on and so on. I am correct to say that such frustration is what led you to your action of blocking the person who was supposed to come in?

Mr Tambo: As a Member of Parliament, I do not have any personal frustration number one. So my frustration was that as a Member of Parliament, not as Mr Tambo, was that it was a misuse of the Rules of Parliament and the inconsistency of the presiding officer. So it is a frustration in defence of the law, not a frustration because I feel ill-treated personally. Secondly, I was not on the wrong side of any law, in my understanding. So the end result of a personal frustration does not exist, and it does not arise in the breaching of any law. There is no law that I breached to my understanding. So no, you are not correct.

Chairperson: Thanks, Hon Tambo. Hon Xaba, your hand is up.

Mr Xaba: Thank you, Chair. I think I have two questions. Hello, Hon Tambo.

Mr Tambo: Hello, hello. How are you?

Mr Xaba: Yes, afternoon, brother. I just want to understand from you whether you understand the difference between the roles of the Sergeant-at-Arms and the PPS? That is the first question. The second question is that has it ever happened in all other rulings, even on this one where you have been charged, that the Speaker, perhaps, took what you term as an ‘ignorant decision’? Does such a decision exist in Parliament? Thank you.

Chairperson: Thank you, Hon Xaba.

Mr Tambo: My understanding of the rules on the Sergeant-at-Arms and the PPS in instances of that nature is that they can enforce the removal of Members of the House who are seen to be in breach of the Rules. That is my understanding in accordance with the Rules. And secondly, there are many instances in my recollection, both as a Member of the Sixth Administration and as a member of the South African society who witnessed the Fifth Administration of Parliament, of ignorant decisions being taken by presiding officers in many instances to the point where they have been taken to court historically, and had their decisions either set aside or reviewed. So I think it would be very irresponsible on this platform to give a suggestion that ignorant decisions do not get made by speakers who either do not know the Rules or misapply or abuse them. Thank you.

Chairperson: Thank you, Hon Tambo. Those were the only hands. Hon Xaba, you can lower your hand. Do you still have another question, Mr Xaba? You keep on raising your hand.

Mr Xaba: No, I am okay, Chair. Thank you.

Chairperson: Thank you, Hon Members. That was the clarity-seeking questions by Hon Members. Earlier on there was a proposal from both legal teams after their engagement that we push today’s hearing up to this point so that it gives us a better way forward as to how we are going to deal with this hearing moving forward. Can I go to that one proposal, Adv Ka-Siboto, so that we align and wrap it up nicely, as to how we are moving forward? We are at the point where we will have to start with the closing from both legal sides. Can we now listen to the proposal of the legal teams?

Adv Ka-Siboto: Thank you, Chairperson. The proposal was this: the Initiator has closed her case, I have closed my case. What ought to happen now is that we argue before the Committee for both sides; I will argue why our Members are not guilty and the Initiator will argue why they should be found guilty. So our suggestion was we do not sit tomorrow to allow both legal teams the opportunity to write down those arguments, because as we did the last time we actually handed out the arguments themselves physically to the Committee in their deliberations and helped them with the deliberation. So we are asking that tomorrow, we do that exercise – we will prepare our arguments. We will resume again on Thursday. When we resume on Thursday obviously, we will give you those arguments, the Initiator will give you her arguments. I presume at some point, perhaps on Thursday, we will deliberate and we will take instructions from you as to what happens next. Obviously, if the question of mitigation and aggravation comes up, we will probably deal with that on Thursday as well. Perhaps, if we can, I think we should be able to, in terms of timeframes, finish on Thursday, then we do not have to sit on Friday and Monday. That is the discussion I had with the Initiator, and as I understand it, she is in agreement as well.

Chairperson: Thank you, Adv Ka-Siboto. Hon Members, this is the suggestion from the legal teams.

Adv Magona-Dano: Sorry, Chair?

Chairperson: Okay?

Adv Magona-Dano: Just one slight amendment or proposed amendment to that. I agree with my learned colleague’s submissions before the Committee, save to perhaps state that we do prepare submissions on aggravation or mitigation so that if the order of the Committee comes, either way, we are ready to proceed immediately, we do not need to adjourn. So I would propose we do it that way. So we prepare both arguments before the Committee, the Committee makes its deliberations, it comes with its decision, if it is guilty we can then proceed immediately with the sentencing; if not, then it ends there. Mine is that we prepare everything for one day. We do not have to adjourn or take more time to prepare such a sentencing process. Thank you, Chair. I hope I am not confusing the process.

Chairperson: Adv Ka-Siboto, does her proposal cover you, that everything could be handled by Thursday?

Adv Ka-Siboto: That certainly helps, Chair, because that would mean that in all likelihood we will finish on Thursday. I have no difficulties with that proposal, Chair. Thank you.

Chairperson: Thanks, Adv Ka-Siboto. Hon Members, that is the proposal. I will not repeat it.

Mr Mlenzana: Mlenzana.

Chairperson: Mr Mlenzana?

Mr Mlenzana: Yes, I propose that we take it as is.

Chairperson: Any seconder?

Ms Tseke: We agree, Acting Chair.

Mr Xaba: Yeah, I second, Chair.

Chairperson: Hon Members, that will mean we will have tomorrow to allow the teams with the matters they have alluded to, and we reconvene on Thursday to continue with the business that we left off. This meeting stands adjourned.

The meeting was adjourned.