Committee Induction
Meeting Summary
The National Assembly Procedural Advisor and the Senior Parliamentary Legal Advisor briefed the Powers and Privileges Committee on the Committee’s roles and responsibilities.
The Committee deals with instances of misconduct by Members, which are referred by the Speaker. The meeting discussed what qualifies as misconduct and the remedial actions the Committee can take against any Member found guilty of either. Where the Committee believes, after investigation, that there has been contempt of Parliament, a formal charge is laid against the transgressor. Where the Committee does not believe that the misconduct amounted to contempt of Parliament, it ceases to deal with the case – which may be referred to the disciplinary committee chaired by the Speaker.
Members discussed whether a Member of Parliament referred to the Committee should be entitled to legal representation and whether that legal representative can make representations in the absence of his or her client. Members also questioned why the courts could reverse a decision made by Parliament, as they did by interdicting Dr John Hlophe from forming part of the Judicial Services Commission, given that it is the representative body of the people of South Africa.
Meeting report
The Chairperson: Good afternoon, Honourable (Hon) Members. I request that we start with our meeting. The programme for the induction has been shared with the members. I believe that we can take less than the scheduled time, but that will be informed by our cooperation and engagement. I just want to check if there are any apologies.
Mr W Wessels (FF+): Thank you, Hon Chairperson. Good afternoon. I just want to apologise. I unfortunately have to leave by 17:00. Can I be excused then? Thank you.
The Chairperson: Okay.
Mr G Michalakis (DA): Thank you, Chair. I just want to submit an apology on behalf of Mr Nodada. Thank you.
The Chairperson: Thank you.
Adv Victor Ngaleka (National Assembly Procedural Advisor): Chair, we have two apologies, one from Mr Manyi and the other one from Mr Ndlozi.
The Chairperson: Okay, but I think that the quorum allows us to continue. I believe that the induction does not warrant any quorum.
Adv Ngaleka: It does not require a quorum, Chair, as there is no decision to be made.
The Chairperson: Okay. I propose that we get a mover to adopt the apologies. I believe that we will be done by 17:00. However, that will depend on you, Mr Ngaleka. I do not know if there is a need for us to introduce ourselves, as it is our first meeting.
The Members and Committee support staff proceeded to introduce themselves.
The Chairperson: Let me welcome you to the meeting or to this induction. We understand that it should have taken place a month ago, but because there were other programmes with which members were preoccupied, we could not continue with the induction. We felt that it was necessary for us to be taken through the work we are going to do as the Committee whenever any referrals are made to us. We are here to be inducted by the staff of the National Assembly (NA). I already indicated that we will not take a long time. We believe that whenever there is a case before us, we will be afforded an opportunity to reflect on issues and will be able to be supported with legal advice, as required. Welcome to the induction. We will cut off the meeting time, as we have already dealt with the matter; hence, I was saying we would not take long. At this juncture, let me hand over to Mr Ngaleka to take us through the presentation. Thank you.
Induction presentation
Adv Ngaleka: Thank you, Chair. The presentation is divided between myself and my colleague, Andile Tetyana. I will start first, and he will come in later. Let me just preface by saying Chair, I will focus on the matters that are directly related to the Committee and only mention the other rules that are applicable to the Committee. For example, the composition of the Committee is determined by the other rules that determine the composition of portfolio committees. The NA Rules Committee has decided that this Committee, like other portfolio committees, has eleven Members: four African National Congress (ANC) Members, two Democratic Alliance (DA) Members, two uMkhonto We Sizwe Party (MKP) Members, one Economic Freedom Fighters (EFF) Member, and two Members from the other parties. We have received Mr Wessels’ name from the other parties and we are still waiting for Mr [Makashule] Gana to supply us with the other name so that the Committee can be fully composed. Secondly, when it comes to quorum or decision making, the rules that apply to committees also apply to this Committee. For a meeting to start and proceed, at least a third of the Members of the Committee must be present – that is, four Members must be present on the Committee to start this meeting and proceed. However, to take a decision, a majority of the Members must be present - that is six members out of eleven must be present. Where there is a tie, the Chair has a casting vote – she can decide matters one way or another besides her deliberating vote. This Committee is a standing committee established in terms of the Powers and Privileges Act (PPA). Rule 211 of the rules gives effect to Section 12 of the PPA. When it comes to the meetings of the Committee, Rule 213 (2) requires that when the Committee deals with a matter that relates to a Member, the meeting must be closed. It must also be closed because it is also a confidential matter unless the Committee decides to open a public interest. What that means is that the Committee must make a determination on whether, firstly, the matter relates to a Member. Secondly, if it is a confidential matter. If those two requirements are met, the default is that it must be closed unless the Committee decides, in the public interest, to open it. Then when the Committee deals with other matters that are of a general nature, then it must be open, just like other committees. Now, let me deal with the mandate of the Committee. The mandate of the Committee is to deal with three matters. One is matters related to contempt of Parliament. Secondly, to deal with misconduct, and thirdly, to deal with the request from a member of the public to have a response recorded. That relates to a member of the public who is aggrieved by what a Member has said in the House or in a committee meeting. A member of the public can write to the Speaker or to the Secretary of Parliament and ask for a response to what the Member said. The Speaker is the person who refers matters to this Committee, whether it is contempt, misconduct, or a request to have a response recorded. Then, the Committee must investigate the matter in terms of the procedure set out in the schedule, which Mr Tetyana will speak about. Now, in terms of the rules, contempt is defined in Section 13 of the Act. Andile will deal with that. I am not going to expand on that. Misconduct is defined as a breach of the NA rules, but it does not include a breach of the Code of Conduct as it appears in the schedule to the joint rules. Misconduct is only applicable to the breach of the rules. When a Member has been found guilty of contempt, the Committee is required to make recommendations on the appropriate penalty in terms of Section 12 (5) of the Act. Now, when a request has been received from a member of the public, the Committee is required to inform the affected Member of the grievance or a witness because sometimes the grievance could be a result of what a witness had said in the Committee. Then what would happen is that the Member or the witness would be informed of the grievance, and they would be requested either to come before the Committee and give their version of what they had said or to give a return response. The grievance does not constitute an allegation of misconduct on the part of the Member; what the Member would have said in the House is not misconduct unless the Speaker or the NA Rules Committee thought it was misconduct. The Section 25 grievance procedure is a remedy for members of the public who are aggrieved by what is said in Parliament. They will come before the Committee and say, ‘This is what a Member had said about me.’ For example, in the Fifth Parliament, the former Secretary to Parliament had a complaint against Mr Shivambu. Mr Shivambu had said that he is corrupt and things like that. He wrote to the Speaker, and the matter was referred to this Committee. The Committee asked the Member to respond to the grievance. The Member did not take up the response. The Committee looked at the grievance and satisfied itself that there had been no finding against the then Secretary to Parliament. Therefore, that grievance was sustained, and a response was published by the committee in the ATC. Similarly, a certain Mr Makhubela complained about what the then chairperson of Brand South Africa (Brand SA) said in the Committee. The Committee invited the chairperson to give a response – in fact, the chairperson came to the Committee. After the Committee looked at both the grievance and the response, it determined that the grievance was not justified, and it refused to publish a response to that. So that is how the Committee deals with grievances that are lodged with Parliament. Lastly, the Committee can, on its own initiative, conduct research on issues of powers, privileges and immunities of Parliament or upon the request of the Speaker. That is it, Chair.
The Chairperson: Thank you. Hon Members, are there any questions for clarity?
Discussion
Mr M Mahlaule (ANC): Thank you very much, Chairperson. The two examples you gave are of interest to me because, even though we are protected by what we say in the Chamber, which cannot be used to prosecute you as a Member, in the example you gave, you upheld the complainant’s grievance, to say that they were not wrong and never found to be corrupt. However, a Member has said that ‘You are corrupt’. Is the accused only getting recourse due to the publication of the statement that he was not found to be corrupt? Is my understanding correct that nothing ever happens to a Member?
Adv Ngaleka: Through you, Chair. Yes, that is correct. The Member is not charged with either contempt or misconduct. This is just a remedy provided to members of the public to put their side of the story and have it published. But what the Member said in Parliament still stands because it is protected by privilege.
Mr Mahlaule: Through you, Chair. Meaning that there is no apology?
Adv Ngaleka: No.
Mr Mahlaule: Okay.
Adv Ngaleka: Unless the Speaker has referred the matter, However, it does not come through the Section 25 procedure. It will have to come via other processes. For example, if the Member had said something in the House and the Speaker ruled that to be unparliamentary and maybe ordered the Member to withdraw. There is a provision 71 which provides that – we do not use that procedure, Section 71 because it has matters that, through another provision, Section 74 and Section 73… Okay, let me just explain that procedure. If the Speaker is of the opinion that an order to withdraw or to leave the House is insufficient, then the Speaker could order other measures. For example, he might feel that that matter is so serious that he or she must refer to this Committee for your investigation. But we have proposed to the presiding officer not to use that procedure because, at the moment, it provides for an automatic suspension of a Member for at least five days, ten days and twenty-five days. Now, that provision was also in Rule 73, and that was struck down by the courts. So we will not use that provision until we have amended it so that it allows the Speaker to say that an order to withdraw is not enough. You need to go to the Committee for misconduct
Mr G Skosana (ANC): Thank you very much, Chair. We appreciate the presentation from Mr Ngaleka. I have two questions from my side. The first is on the issue of closing the meeting. I noted you said that when we are dealing with issues affecting members, the meeting should be closed. However, the Committee may decide to open the meeting. I just want to understand the rationale behind closing these meetings. We believe in the value of transparency. Hence, Parliament meetings – including ad-hoc committees and hearings – are open to the public and even the media. They are only closed if there is a portion that is deemed to be confidential – it will only be closed for that day or that hour. Ordinarily, these meetings are open. Why are we not saying that the meetings must be open and should only be closed if there is a meeting? Secondly, there was an example you gave of the former chairperson of Brand SA. I want to understand what powers we have when dealing with people who are not Members of Parliament. What powers do we have to take action against leaders of certain organisations or government bodies?
Ms N Gcaleka-Mazibuko (ANC): Thank you very much, Chair. Mr Ngaleka, please forgive my ignorance – if it is ignorance – as I am new to the Committee. What is the meaning of the acronym ATC? One of the questions I had noted Hon Skosana has asked. It was about the process of what is to be done about people who are not Members of Parliament. You have made one example, but I would like you to take me through another example where members of a party were suspended. What process was followed there? Did it come to the Powers and Privileges Committee? What was the process that led to their suspension and the Act used thereof? You have mentioned that when it involves members of the public, then Section 25 of the Constitution is used. Maybe the legal expert would be able to just give a synopsis of what Section 25 says so that we have a better understanding. Thank you.
The Chairperson: The last question.
Mr Wessels: Thank you, Chairperson. Chair, the protection afforded to Members of Parliament in the form of absolute privilege is a very important protection. It is very similar to freedom of speech, but it can be abused just as freedom of speech can be abused. And there is a provision in the rules with regard to the abuse of privilege. However, it can also happen that a presiding officer might make a ruling to say that an Hon Member must withdraw a statement that is actually reasonably protected by privilege. Let us say person X is a thief who is reasonably protected by privilege – also in terms of former rulings and so forth. But it has almost happened that a specific presiding officer will think that that is wrong and an abuse of privilege and might then rule that it must be withdrawn. The question is, the procedure in Parliament is obviously that if a ruling must be challenged, it is referred to the Rules Committee. The question is, what is this Committee's role in assisting in such a matter? The Power and Privileges function does fall here. There is almost an overlap between the Rules Committee on that ruling before it becomes misconduct because if it was misconduct that the Member did not withdraw – refused to withdraw – then there would have been a complaint to this Committee. Then there would be an outcome: “Yes, it was actually absolute protected privilege” or “No, it was not. The presiding officer was correct. The Member is abusing his privilege in terms of Rule 355 and is guilty of misconduct. But if it is never referred to this Committee, and it is only a challenge to the Rules Committee, my question is, can this Committee assist? Is there any procedure in that regard? Has it ever happened before? I think that is a void to a certain extent.
The Chairperson: Thank you. Mr Ngaleka, can you please answer the questions?
Adv Ngaleka: When my colleague feels I have left out some things, he will come in. Let me just quickly deal with the question on the ATC. The ATC is one of the three or five agendas of the House used for purposes of records. Historically, when they say ‘we table’, it was done physically. The Minister would say, ‘I am tabling this in the House’, but that is no longer done, except in the case of the Minister of Finance. Now, tabling is done by publishing in the ATC. Okay? That is tabling. It is announcements, tablings and committee reports. Okay, so when this Committee has finished a matter, it will table the report and publish it in the ATC. Similarly, with a request for a response to be recorded by a member of the public, if the Committee agrees – that is very important because Members are not bound by the version of the member of the public. They might say, ‘Look, although we note your point, we may only agree to your complaint if you agree to this version’. If the member of the public agrees, it will be published in the ATC. The other agendas of the House are the order and question papers. Mr Skosana, if you read the rule, it says the matter must relate to a specific member or member, and it must be of a confidential nature. So those two go together. Then the meeting is closed. But if the Committee says it is not of a confidential nature, then the meeting must be opened. But it also says that if both requirements are met then by default, it must be closed. However, the Committee might make a determination that this one must be made public. This is not like the joint ethics committee, which is closed and not open to the public. This Committee has the powers in Rule 167, which gives the Committee the power to ask a member of the public to come to the Committee and be a witness. And if a member of the public refuses, or if a Member of Parliament refuses, then the Committee has the powers to someone that member. There is a procedure to issue summons and force the member of the public, or whoever, to come before the Committee and produce reports or give evidence or whatever the Committee might want from that member. So, the Committee is empowered to fulfil its mandate, just like any other committee. Section 25 of the Act is just a remedy for members of the public when they have a grievance about what was said about them. Let me just read it quickly; it is not that long. The title is ‘Protection of members of the public.’ ‘A person other than a Member who feels aggrieved by a statement or remark made by a Member or a witness in or before a House or committee about that person may submit a written request to the secretary to have a response recorded. The committee referred to in Section 12(12) must, subject to the standing rules, consider the request, and, if approved, publish the response of the aggrieved person in the appropriate parliamentary…’ That is what it is about. What the Member said will not count against him. The Member might decide, ‘I am not going to respond’. The Committee, in that instance, will have to deal with the version of the complainant before it decides whether it is justified or not. The Section is in the Powers and Privileges Act, not the Constitution. Section 355, Mr Wessels, has never been used. It is quite a tricky one. Sub-rule one says, ‘The Assembly may make a finding that a breach or abuse of the privilege provided in Section 45 (2) of the Constitution and 55 of the Constitution, or as set out in Rule 63 of these rules, which repeats what is in the Constitution, is contempt of Parliament as envisaged by Section 13 (d), of the PPA in accordance with sub-rule two.’ Now, what is sub-rule two? ‘The Assembly may make a finding in terms of sub-rule one only if the Powers and Privileges Committee has decided that a specified act constitutes contempt of Parliament and has reported accordingly to Parliament.’ We have never reached this point. Maybe it is something the Committee will want to investigate. Thanks, Chair.
The Chairperson: Thank you. Are there any follow-up questions? If we do not have any, let us ask Mr Tetyana to present to us.
Induction presentation
Mr Andile Tetyana (Parliamentary Legal Advisor): Good afternoon, Hon Members and my colleagues as well. I am waiting for my colleague to put up the presentation. Thank you. Hon Members, I was told to come and present the procedure to be followed in the investigation and determination of allegations of contempt of Parliament. Perhaps we should start from the beginning. I will just give a brief background. The Act we are dealing with, Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (PPIPPLA), gives effect to Section 58 (2) of the Constitution. Section 58 is only relevant for purposes of the Assembly. Section 71 (2) is only relevant for the purposes of the delegates to the National Council of Provinces (NCOP). Section 117 (2) is only relevant for the purposes of provincial legislatures. So, for our purposes, we will only direct ourselves to Section 58 (2). So, what does this section say? It says that cabinet members, deputy ministers, and members of the Assembly have freedom of speech in the Assembly, and its committees are subject to its rules and orders. So in actual fact, it is an unfettered right, as it were, to freedom of speech, but that is limited by the rules and orders of the Assembly. Now the Act came into operation on the 7th of June 2004, and of course, there were amendments which were made emanating from court judgements. We will talk about that later. Now, if you look at Section 12 of the Act, the section provides for disciplinary action against Members for contempt. Now, my colleague, Mr Ngaleka, has touched on this a bit. So, for instance, if you look at Section 12 of PPIPPLA, 12 – subsection 1 says, ‘Subject to this Act, a house has all the powers which are necessary for enquiring into and pronouncing upon any act or matter declared by or under Section 13 to be contempt of Parliament by a Member and taking the disciplinary action provided therefore.’ Subsection 2 says, ‘A house must appoint a standing committee to deal with all enquiries referred to in subsection 1.’ So this is the standing committee. This standing committee is established in terms of Section 12 (2) of the PPA. Now, if you look at Section 13, Section 13 gives us a bird's eye view into what conduct constitutes contempt. Now you will see that in terms of Section 13, the relevant provisions are provided regarding what conduct constitutes contempt. And of course, it says that ‘A Member is guilty of contempt of Parliament if the Member contravenes Section 7’, Section 7 deals with prohibited acts in respect of Parliament and Members. And, of course, Section 8 deals with the improper influence of Members. Section 10 deals with giving evidence of proceedings, and section 19 speaks to unauthorised publishing. Section 17 speaks to offences relating to witnesses, and then Section 21 (1) speaks to the broadcasting of proceedings, and Section 26 speaks to hindering and obstructing staff members. We will go into that a bit later. I just want to talk about this case, the Democratic Alliance versus the Speaker of the National Assembly. It is a very important case, and I think Members of this Committee must read this case. This case emanated in 2015. In 2015, and I think all of us will remember this, President Zuma was here to address Parliament. Subsequent to that, members of the EFF sort of deviated from the business of the house on that day and asked him when he is paying back the money regarding the upgrades in Nkandla and so on. And, of course, when the Speaker was trying to calm them down, they became unruly – it is not me who says that it is the court documents. So subsequent to that, because of the fact that there were members of the security services who were involved in the removal of the Members from the house, the DA approached the Western Cape High Court, of course, on various grounds, one of which was the question of giving deference to the doctrine of separation of powers. And, of course, the Western Cape High Court ruled in favour of the DA, and the Speaker appealed the judgement to the Constitutional Court. The Constitutional Court, in a majority judgement – there was a minority judgement made by Justice Jafta – written by Justice Madlanga. There are one or two paragraphs in the judgement that are important. This judgement helps us understand what is acceptable and unacceptable conduct regarding freedom of speech in the House. If, for instance, you look at paragraph 38 of the judgement, it says ‘Surely, the privilege contained in Section 58 (1)(a) and Section 71 (1)(a) can never go so far as to give Members a licence so to disrupt the proceedings of Parliament that it may be hamstrung and incapacitated from conducting its business. This would detract from the very raison d’etre of Parliament. Section 57 of the Constitution provides that the National Assembly may determine and control its internal arrangements, proceedings and procedures, and make rules and orders concerning its business.’ Now, the other paragraph I just want to quote is paragraph 44, which says, ‘To warrant removal from the chamber, interference or disruption must go beyond what is the natural consequence of robust debate. Otherwise, the very idea of parliamentary free speech may be eroded. In the heat of a debate, one must expect that from time to time, a Member's contributions will not come to a screeching mechanical halt once the presiding officer has ruled that the Member desists from further debate or the subject.’ Now, lastly, paragraph 45 says, ‘Interference and disruption that may be sufficient for the removal of a Member must be of a nature that hamstrings and incapacitates Parliament from conducting its business; even so, there must be no anticipation of the resumption of business within a reasonable time.’ I thought to make that point very clearly. One of the issues that were challenged here was Section 11 of the PPA, and the challenge that was mounted was that the section, as it read at the time, bordered on unconstitutionality. I just want to read the section for the Members as to how it read before this judgement. The section says, ‘A person who creates or takes part in any disturbance in the precincts while Parliament or a house or committee is meeting may be arrested and removed from the precincts on the order of the speaker or the chairperson, or a person designated by the speaker or chairperson, by a staff member or a member of the security services.’ That is how it reads. So the Constitutional Court said, ‘If you read this Act, the word ‘person’ includes a Member of Parliament as well.’ But then what the Constitutional Court did, it did what we call a read in. Section 11 was declared as invalid in the Constitutional Court in relation to Members. So the reading in was a person, so after the person, they wrote in the words ‘other than a member.’ So it reads as ‘A person, other than a Member who creates or takes part in any disturbance.’ The ‘other than’ was read in by the Constitutional Court. Parliamentary free speech contained in Section 58 (1)(a) and 71 (1)(a) of the Constitution is subject to the rules and orders and may not be regulated in an Act of Parliament. I think we have dealt with that. And of course, what happened after that? Parliament had to introduce a bill in order to effect that particular amendment, and that was the amendment bill in 2018 as you can see. The bill addressed the judgement: ‘definition of disturbance excludes an act committed by a Member in the exercise of his royal freedom of speech has contemplated in sub sections 58 (1) and 78 (1) of the Constitution and providing that the arrest and removal on the order of a presiding officer of a person who creates or takes part in any disturbance on the precincts is not applicable to a Member.’ And of course, these amendments, amongst others, clarified vague sections in the Act, and effected technical and grammatical corrections. So this is exactly what I said is encapsulated in Section 12 of the Act. But if you look at the rules of the National Assembly, particularly page 215, you will see there is a schedule to the rules, and that schedule deals with the procedure to be followed in the investigation and determination of allegations of contempt of Parliament. And of course, if you read section 12 (3) of the Act, it says ‘Before a House may take any disciplinary action against a Member in terms of sub section one, the standing committee must inquire into the matter in accordance with a procedure that is reasonable and procedurally fair. And, of course, that is the procedure I am referring to – the schedule to the rules speaks about that. Section 12 (2)(b) says that this standing committee must table a report on its findings and recommendations in the House. So, a house may find a member guilty of contempt and may impose any one or more of the penalties set out in subsection five. So, if you look at section 12 (5) of PPIPPLA, you will see that they have listed all the applicable penalties, formal warning, reprimand, an order to apologise, withholding for a specified period of the Member right to use or enjoy any specified facility provided to Members by Parliament and so on. So, that is the procedure I was referring to. If you go to page 215 of the Rules of the Assembly. The procedure, I think, gives effect more than any other thing to the audi role; fairness of the proceedings, reasonableness of the proceedings, and so on. So if a Member is charged with misconduct or contempt, then a written notice must be delivered at least five working days before the hearing. And of course, what you want to achieve there is you want people to go and consult so that when they are required to plea, maybe they have gotten some advice from elsewhere. And then the schedule speaks about legal representation as well. It says ‘legal representation is allowed in certain cases.’ Usually, what we have done in this Committee is because we do not want to find ourselves in a territory where we are being accused of being unfair and so on. If you read the schedule, it talks about complicated or complex cases. And, of course, the question then becomes, what do you mean by a complex case? What do you mean by a complicated case and so on? So I think our approach has always been, if someone requires legal representation, all you need to do is to make an application to the Committee, and the Committee will accede to it. Written or oral explanation may be delivered by a Member before or at the hearing. So what usually happens is that we usually appoint an initiator. It could be a Member, of course, outside of the Committee, or another person duly qualified. And, of course, the functions of the initiator are to present the necessary evidence to the Committee, cross-examine witnesses, evaluate the evidence and propose penalties to the Committee. And the charged Member has a right to attend the hearing, or the hearing may continue in his or her absence. The affected member must plea – a plea explanation is allowed. And, of course, the default is no guilty plea. In other words, if the Member is not here, there is no just cause for him not to be here, and the Committee presses ahead and continues with the hearing. The default is a not guilty plea. So, the charged Member or legal representative may call witnesses and cross-examine them or any other witness to collaborate on their case. The Chairperson and Members of the Committee may pose questions. Of course, Members do so only through the Chairperson. We do not find that restrictive. We think it is a permissive provision, in the sense that it is the Chair who directs the meeting. If the verdict is a not guilty verdict, of course, that is the end of the matter. But if the verdict is guilty, then there are arguments in mitigation and aggravation – they may be in writing or verbal – and of course, a Member may be suspended pending the hearing, under certain circumstances, like, for instance, intimidating witnesses, this and that and so on. Okay, so these are just the sanctions/the penalties. And of course, I will not repeat them, because they are listed in Section 12 (5) of the Act. I think the only thing that I just need to flag for the benefit of the Members is that if you look at Section 12 (11) of the Act, the takeaway there can be that during the period of suspension, the affected Member or Members will not receive their salaries or travel allowances, but their medical aid and pension benefits will be unaffected. So that is the effect of Section 12 (11). This is how it reads: ‘Despite the Remuneration of Public Office Bearers Act 1998, a Member who has been suspended without remuneration under Section 12 (5)(g) is not entitled to any salary or allowances under the Act for the period of suspension.’ The reason why I am flagging it is because the Act simply says that their medical aids and pension benefits will be unaffected. Okay, so this relates to a suspended Member: ‘A Member may not be suspended in terms of this provision unless the House has found that the Member is guilty of a serious or repeated contempt and none of the other penalties set out in sub section five will be sufficient.’ Of course, the suspension of a member is – I do not want to use the word draconian. What I am trying to say is that in those instances where the Member is a repeat offender, that is the kind of behaviour we want to correct. ‘A Member suspended must leave the precincts and may not during the period of suspension, without the written permission of the speaker or the chairperson, enter the precincts for whatever purpose or participate in any activity of Parliament or any committee. This has happened plenty of times, I mean, over the past five years. So, a suspended Member without remuneration is not entitled to any salary or allowance under the Act. I think I have dealt with that already. This is Rule 355, which speaks to abuse of privilege. And, of course, in essence, it speaks to Section 13 of the Act, which deals with contempt of Parliament. So in this slide, we merely deal with conduct constituting contempt. And of course, that is what is captured in Section 13 of the Act. As I said, Section 7 deals with prohibited acts; Section 8, improper influence of members; Section 10, unauthorised giving of evidence of proceedings; Section 19 deals with unauthorised publishing; Section 21 deals with unauthorised broadcasting; and Section 26 deals with hindering or obstructing staff members. And then we have Section 17. Section 17 deals with offences relating to witnesses. And then, if you look at Rule 10 of the Assembly, Rule 10 speaks about contempt of the assembly rules. It also says, ‘A Member who willfully fails or refuses to obey any rule, order or resolution of the House may be found guilty of contempt of Parliament in terms of the PPA. Next slide, please. Here, I was just talking about accountability and accounting. The reason that we find ourselves in this territory is that we are accountable, as opposed to, you know, counting money as you do in the standing committee on the auditor-general. Hon Members, I think I am done. We can take questions. Thank you very much.
The Chairperson: Thank you. I am noting hands. Mr Wessels, you can go first.
Discussion
Mr Wessels: Thank you, Hon Chairperson. Thank you for the presentation. Once again, just an observation, Chair, you know, many years ago, I was informed that the rules actually provided that if you were chased out of a sitting, you had to leave the precinct immediately, and you were escorted to your office. That was not gross misconduct and being removed by white shirts; it was just refusing to withdraw on something. And you had to leave the precinct, and you lost a day's salary automatically. If there had been a finding that it was gross misconduct and so forth, there could have been a greater sanction. So our rules are actually very lenient in that regard. That is what it is. And whilst I am saying that I am not a Member that has never been chased out before, my leader holds the record for being chased out the most. It is just an observation. Thank you.
Ms Gcaleka-Mazibuko: Thank you very much, and thank you for the presentation. I think it was quite clear, especially in terms of the Acts. But I have one question, Chair, of clarity. Legal representation is allowed but only says ‘in certain cases’. Where do we see under which cases or circumstances that legal representation is allowed? Because you might find that there are Members who might abuse this right to have legal representation, or maybe we, as a Committee, then say, ‘No, the Member does not qualify for legal representation.’ So maybe we can have just a sense of under which circumstances. Remember, a legal representative is an outsider – an attorney or a lawyer is an outsider. If I can get clarity on that, Chair. I do have a clarity-seeking question regarding the suspension of Members. However, I have noted that there is a page that clarifies it. Thank you.
The Chairperson: Thank you. Hon Skosana.
Mr Skosana: Thanks, Chair. We welcome the presentation from Mr Tetyana. There seems to be a thin line between misconduct and contempt of Parliament. If Mr Tetyana can just elaborate as to where do we really draw the line? Which instances do we regard as misconduct, and which instances do we regard as a contempt of Parliament? And then, in terms of penalties, which one is regarded as more grave than the other? And now, secondly, the slide on penalties speaks of the removal or suspension for a specified period of the Member from any parliamentary position occupied by the Member. Well, I understand about the suspension part, but I do not understand the removal part. Can we say somebody who is a chair of a portfolio committee can be removed? Can you give us examples that relate to the penalty of the removal of a Member from any parliamentary position occupied by the Member? Thank you very much.
The Chairperson: Hon Mahlaule?
Mr Mahlaule: Thank you very much, Chair. I think on the slide, ‘fair procedure,’ there is a point that the Chairperson and Members of the Committee may pose questions, and then it says, ‘Members only through the Chair.’ What does that mean? I, for one, do not want to come here, and there is a witness there, so I cannot ask a question without the Chairperson. Why do you not have the Chairperson conduct the hearing alone then? What do you want from us? What does it mean in simple English? We do not want to be at loggerheads with the Chair when we pose questions to someone who will grace us ungraciously.
The Chairperson: Thank you. Let me first welcome you for joining us. We scheduled to adjourn sometime between 17:00 and 17:30. Okay, was your hand up?
Mr N Ndhlela (MK): Yes.
The Chairperson: Okay, you are the last one then.
Mr Ndhlela: Thank you, Chair. I am just reflecting on the fair procedure…
Ms Gcaleka-Mazibuko: Sorry, Chair? A point of order. If the Member could introduce himself, because we started with introductions before he arrived. Thank you.
The Chairperson: Thank you, Hon Member. We already introduced ourselves, so for the benefit of the meeting, can you please introduce yourself.
Mr Ndhlela: Indeed, Chairperson. Nhamulo Ndhlela. I am a Member of the Committee and a Member of uMkhonto we Sizwe Party. Thanks, Chair. My focus on this slide is fair procedure. The third point, and I think it was raised, is that legal representation is allowed in certain cases. So, at what point are you not allowed to have legal representation? Because then it goes back to the issue that the Hon Member was also asking regarding the issue of misconduct; at what point do you classify a case to be that of misconduct? That is the first one. Then, there was the issue of the charged Member’s right to attend a hearing, and the hearing may continue in absence. If you are allowed legal representation in certain cases, and then there is a case where you do not have legal representation, how do you then deal with the technicalities whereby the rules still allow you to have legal representation? You see? There is a bit of a challenge there. The two seem to be conflicting with each other. Thank you, Chair.
The Chairperson: Thank you. Can you please respond?
Mr Tetyana: Thank you very much, Chairperson. Chairperson, I will start with the questions on legal representation. If you look at the schedule to the rules, Chairperson…
Mr Ndhlela: Sorry, Chair. On that one, can you touch on whether your legal representative can preside over your matter in your absence?
Mr Tetyana: Alright, so let us start with that, Chairperson. Let us read the third point of the schedule to the rules. It says, ‘In complex cases or cases involving complicated evidence or legal issues, and where the Committee is of the view that such legal designation might be essential for a fair hearing, the Committee may allow the Member charged to be represented by a legal practitioner who is not a Member.’ Now let us talk about practice in this particular Committee because I mean, in the past five, six years or so, we have been dealing with these cases. So practice has always been – and I mean, my colleagues will agree with me when I raise this. I have always said, even to counsel, for that matter, that this particular provision, in my view, is unfair, and of course, it borders on illegality. And I will tell you why. There is a principle in civil law that talks about the equality of arms. For instance, what happens in this particular Committee is that, in terms of practice, we always appoint an initiator who is a counsel. So, in other words, an advocate of the High Court or an admitted attorney of the High Court of South Africa. So, on the equality of arms principle, the point I always raise is that on the other side, you have counsel assisting the Committee as an initiator, arranging and evaluating the evidence, leading witnesses, cross-examining and so on. On the other hand, you have a Member who no one represents. That, for me, swings the pendulum, unfairly so, favourably to the whims of the Committee. And that is why we have always said in this Committee, in particular, that whenever that request for legal representation is made, we have never refused it.
Ms Gcaleka-Mazibuko: Please read the rule.
Mr Tetyana: Okay, it says, ‘In complex cases’ – and the question will be, what do you mean by a complex case? – ‘or cases involving complicated evidence or legal issues, and where the Committee is of the view.’ So it gives that discretion to the Committee that such legal designation might be essential for a fair hearing. ‘The Committee may allow the Member charged to be represented by a legal practitioner who is not a Member.’ So those who are on the other side of the divide in terms of this argument have said if you look at the sanctions mooted out to Members, the highest sanction that can be mooted out to a Member is to suspend that Member from the House for thirty days, and, of course, to dock his or her salary for thirty days. There will not be a sanction where you say to the Member, ‘No, you must never come back to Parliament.’ I mean, of course, there is a reason for it, because Members have been voted by South Africans and so on. So those who are on the opposite side of the divide have always said ‘Yeah, but why are you being pedantic and technical about it because the highest sanction you can moot out to this person is to suspend them from the House for thirty days’. I am of the view that if you are going to take the salary of that person and suspend that person, in all fairness, the procedure must be reasonable, it must be fair, it must be seen to be just, and so on and so on. So, in so far as that is concerned, I can only tell you that practice is that we have always allowed people to be represented by legal representatives. That has never been denied. You are right that there is a very fine line between misconduct and contempt. What we usually say when interpreting these issues is that we must distinguish between the general and the specific. And, of course, the general is that conduct constituting contempt is spelt out in Section 13 of the PPA. So, in other words, anything conduct that falls within the scope and ambit of Section 13 will be deemed as conduct constituting contempt. And, of course, if it is outside that, and it is on the other divide in terms of the rules or the law, we will then call it misconduct. Look, you may not be happy with my answer, but I am just saying practically, contempt is defined in the Act, and, of course, we can only charge you for contempt based on whether what you have committed falls within the ambit and scope of Section 13 of the Act. Now, regarding Mr Mahlaule’s question about asking through the Chair. I think that is done solely for orderliness, if I may be basic about it. That is why I am saying it is not a restrictive provision. It is a permissive provision because meetings are led by the Chairperson. And of course, if you want to ask a question from a witness – I mean, we have had inquiries in Parliament, and you have been a part of them, Mr Mahlaule, and no Member has ever been restricted in terms of interacting with the witness. Thank you very much. Oh, sorry, there is a question Mr Skosana asked about the penalties as well. It says, ‘The removal or the suspension for a specified period’, of course, that specified period cannot be more than thirty days, ‘of the Member from any parliamentary position occupied by the Member.’ I think practically, what it means is that if you, Mr Skosana, are the Chairperson of the Committee, as an example, and the penalty meted out against you is suspension from the House for fifteen days. The fact that you are suspended from the House means that you cannot come here to the parliamentary precincts, and of course, you cannot discharge your responsibilities as the Chairperson of that particular committee for that specified period. So yes, we have removed you, but for that specified period.
Mr Skosana: It says ‘removal or suspension’. Now it talks about removal as a separate thing, that you can be removed or suspended. So, in other words, it is not like you are not occupying your position as a consequence of being suspended. No, it talks about the removal as a separate thing.
Mr Tetyana: I am trying to be practical about it. For me, if this Committee, for instance, or any Member for that matter who appears before this Committee, if the sanction is that we are suspending you for ten days, that has got a removal effect. That is my reading of it.
The Chairperson: Are there any follow-up questions? Hon Ndhlela.
Mr Ndhlela: Thank you, Chairperson. Firstly, this slide here speaks to fair procedure; however, from what I am hearing you saying in your response, it seems to highlight that the posture that we would take borders on illegality because then it is the Committee that will be making a determination as to whether you need legal representation or not as a Member. This cannot be because the Committee has to preside over the same matter. So you are disadvantaged. In effect, that law is punitive to a person who believes that they would not be able to preside over the matter themselves and, therefore, would need legal assistance. So, I think it goes against the principles of fairness from a procedure perspective because if I feel that this matter requires and needs me to have legal representation, I should be able to do so, and it should not be the Committee, per se, that makes the determination. That is where I am coming from. So that particular prescript in these rules needs to really be looked into.
The Chairperson: Hon Mahlaule?
Mr Tetyana: Oh, I wanted to respond, Chair.
Mr Mahlaule: Thank you very much, Chair. Can we go to Section 24 of the PPA, where it speaks about the duty of criminal courts in respect of Members. I just want to give a scenario. You see, when we contest elections, a list is taken to the Independent Electoral Commission (IEC). I am not going to talk about political parties that do due diligence when vetting criminal records and all of that. The IEC does that to ensure, like President Zuma, we are satisfied that the law does not permit him to become a Member as he was convicted for more than twelve months. The public does not get the chance to object, like we are subjected to for ten days or whatever, to say to someone on a party list. What happens if, in Parliament, we discover this person was convicted for more than twelve months and has served six months? Whose fault will that be? I am not sure if you get my point. Thank you.
Mr Tetyana: I think I will leave to my colleague, Mr Ngaleka, and I will only deal with what has been raised by Mr Ndhlela.
The Chairperson: I think that will be your last take, Mr Ndhlela. You cannot arrive late, not apologise, and then extend our programme.
Mr Ndhlela: Chairperson, let me apologise for not having apologised. In light of time, I felt that I should just get into it. But I apologise. I was in no way trying to be disrespectful. May I, on the back of the Hon Member’s questions? This is a critical one. If you look at our situation pertaining to Judge Hlophe, it pertains to what the Hon. Member is highlighting. He came in post the elections and was then nominated and then brought on to be a Member of Parliament. The courts then – which is a process outside of a democratic process then allowed him to participate in the Judicial Services Commission (JSC) – then said that the issue of impeachment, which is not even there in terms of prescription as to whether they can participate or not, is then used to exclude him from being part of the JSC. So why is it that when there are powers and privileges that are vested within Parliament, and Parliament makes a decision democratically and by way of a vote, it can get reversed? Now I understand the point I think my Hon Member is referring to of Section 47 (1)(e) when it comes to the IEC process of the candidates of the electoral process versus Section 47 (1)(e) pertaining to Members of Parliament. Those are two different things. It is not the IEC’s jurisdiction to participate in anything that has to do with Parliament decisions. In the same way, the courts should not be interfering. But we have a case right now where there is a Member that was democratically appointed to participate in a Committee, and yet the courts infringe on Parliament's decision, as per the rules, as per the powers and privileges vested in Parliament to have made that decision in the first place. So that is a situation that, I think, links quite well with the question that the Hon Member is asking. Thanks.
Mr Tetyana: Except for the fact that it is outside the remit of this Committee. Mr Ndhlela, you know this matter has been traversed by our courts, and our courts have pronounced. And, of course, Section 165 of the Constitution says the judicial authority of our Republic is vested in the courts. So, I would not want to go beyond what the full court, the full bench, has said on this matter. And, of course, it falls outside the remit of this Committee to do so. Regarding the matter you raised about legal representation, it is safe to say that if you look at Section 2 of the Constitution regarding the supremacy of the Constitution, it says that, ‘This Constitution is the supreme law of the Republic. Law or conduct inconsistent with it is invalid.’ And I want to repeat that ‘law or conduct inconsistent with it is invalid.’ Now the issue then becomes, who invalidates? The answer is simple: it is only a competent court that can invalidate. So, my point is to say something is constitutional or unconstitutional; the Constitution is not self-executing. In other words, it is not my responsibility to say something is constitutional or unconscious or the senior counsel’s responsibility for that matter because, ultimately, it is only a competent court that can invalidate. That is the question I wanted to raise. As long as this has not been challenged In a court of law, our views really remain opinions in terms of paragraph three of the schedule to the rules. Thanks very much. I will give it to my colleague.
Adv Ngaleka: I just want to briefly clarify the point made by Mr Wessels, Chair. No speaker or presiding officer has the authority to impose a salary deduction on Members. The powers they have is to ask for Members to withdraw something they have said or to physically remove Members by force. In the past, I said the speaker or presiding officers had the power to suspend in terms of Rule 71 – it is called naming or suspending – but that power is no longer in use because the courts have ruled there cannot be an automatic suspension without due process. Now, on the issue of contempt and misconduct. This Committee does not have the power to initiate investigations on its own. It acts on the basis of referral. The Speaker in the referral will ask this Committee to investigate contempt, misconduct or both. Sometimes, we will specify. The ambit of the investigation will be what we get from the Speaker to investigate. On the issue of a Member. We had a Member, I think, in the Fifth Parliament who was from the Eastern Cape. I think her name was Yolanda. Chair, do you remember the member named Yolanda?
The Chairperson: From the DA?
Adv Ngaleka: No, not Yolanda of the DA. She was an ANC member. She had a case going on for her when she became a Member, and he was found guilty. However, because there was an appeal, she was allowed to continue being a Member. It was only when the appeal was unsuccessful that she lost because she was sentenced to house imprisonment, basically, and then that is how she lost her membership of the House. So we have had one case like that where a Member was sentenced whilst being a Member. Fortunately for Parliament, that matter was in the public domain, so we got to know early.
The Chairperson: So, does this mean that, indirectly, any Member can write to the Speaker?
Adv Ngaleka: Yes, there must be a complaint. For example, the DA laid a complaint against Mr Paulsen, and the Speaker referred that matter to the Committee. Recently, there was also another complaint laid against Adv Mkhwebane for what she had said in public, but the Speaker declined that because it did not fall within the ambit of this Committee. It was not contempt or misconduct. Probably, it relates to a breach of the code of ethics. The Speaker acts as a filter on what comes before this Committee.
The Chairperson: I think if there are no other questions, this brings us to the end of the meeting. I know we might have some interest in engaging on other issues, but for today, let us focus on what we were here for. I appreciate that Members attended. We will hear when we start the work. We only work when there are items referred to us. Let me thank you for attending this meeting. It was not an easy day today. The day was full of many commitments, but we sacrificed our time and prioritised the meeting. Thank you. The meeting is adjourned.
The meeting was adjourned.
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Present
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Tikana-Gxothiwe, Ms W
Chairperson
ANC
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Gcaleka-Mazibuko, Ms NA
ANC
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Mahlaule, Mr MG
ANC
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Michalakis, Mr G
DA
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Ndhlela, Mr N
MK
-
Skosana, Mr GJ
ANC
-
Wessels, Mr W
FF+
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