Hansard: NA: Hansard (Budget Speech)
House: National Assembly
Date of Meeting: 21 Feb 2024
Summary
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Minutes
UNREVISED HANSARD
NATIONAL ASSEMBLY
WEDNESDAY, 21 FEBRUARY 2024
PROCEEDINGS OF THE NATIONAL ASSEMBLY
Watch video here: Budget Speech
The House met at 14:04.
The Speaker took the Chair and requested members to observe a moment of silence for prayers and meditation.
NEW MEMBERS OF PARLIAMENT
(Announcement)
The SPEAKER: Hon members, take your seats. Before I continue, I wish to announce that the vacancies which occurred in the National Assembly due to the passing of Ms A H Mthembu and Ms V S Siwela have been filled by the nomination of Mr K E R Hadebe and Ms N Muller respectively, with effective from the 16th of February 2024.
The members had made and subscribed the oath in the Speaker’s office. I welcome you hon members to the National Assembly.
The Secretary will now read the first to the third orders together.
First, Second and Third Orders:
APPROPRIATION BILL
(Introduction)
DIVISION OF REVENUE BILL
(Tabling)
SECOND ADJUSTMENTS APPROPRIATION BILL
(Introduction)
GOLD AND FOREIGN EXCHANGE CONTINGENCY RESERVE ACCOUNT DEFRAYAL AMENDMENT BILL
(Introduction)
The MINISTER OF FINANCE: Madam Speaker, Nosiviwe-Mapisa Nqakula, His Excellency President Cyril Ramaphosa, His Excellency Deputy President Paul Mashatile, Cabinet colleagues, members of the executive committee for finance, hon members, the Governor of the South African Reserve Bank, the Commissioner of the South African Revenue Services, fellow South Africans.
Madam Speaker, according to two prominent economist, Alberto Alesina, and Dani Rodrik, they had this observation to say, and I quote:
A crude distinction between economics and politics would be that economics is concerned with expanding the pie.
While politics is about distributing it.
The point is that the size and quality of the national pie is what informs and ultimately determines the realisation of the political imperative of redistribution.
Our mission over the past 30years has been to restore both social and economic justice for our nation and to decisively
address the inequality that was the hallmark of the system of discrimination and dispossession.
The budgets we have tabled since 1994 have been about securing the goal of growing the economy so that we can do more to address the inequalities and deprivation that still scar our society and undermine the promise of democracy.
So, it is with a great sense of privilege and purpose that I stand before you to present the last budget of the sixth democratic administrations.
IsiXhosa:
Siyabuya.
English:
Madam Speaker, I therefore table the following documents before this House:
FISCAL FRAMEWORK;
REVENUE PROPOSALS, INCLUDING CUSTOMS AND EXCISE DUTIES
ESTIMATES OF NATIONAL EXPENDITURE 2024;
DIVISION OF REVENUE BILL
APPROPRIATION BILL
SECOND ADJUSTMENTS APPROPRIATION (2023-24 FINANCIAL YEAR) BILL
GOLD AND FOREIGN EXCHANGE CONTINGENCY RESERVE ACCOUNT DEFRAYAL AMENDMENT BILL
ECONOMIC OUTLOOK
Global Outlook
Madam Speaker, allow me to begin with the global outlook. Global growth is forecast to increase from 3,1% this year to 3,2% in 2025. The moderate improvement is due to growth in the United States and several large economies.
There are downside risks from potential spikes in the global oil price, if the conflict in the Middle East escalates and if growth falters in China – the country’s largest trade partner.
Domestic Outlook
Despite improved global outlook for 2024 South Africa’s near- term growth remains hamstrung by lower commodity prices and structural constraints.
We estimate real GDP growth of 0,6% in 2023. This is down from 0,8% growth estimated during the 2023 Medium-Term Budget Policy Statement, MTBPS.
The revision is due to weaker-than-expected outcomes in the third quarter of 2023, particularly in household consumption and fixed investment.
Between 2024 and 2026 growth is projected to average 1,1%.
The growth outlook is supported by the expected easing of power cuts, as new energy projects begin production and as lower inflation supports household consumption and credit extension.
But there are also risks to the domestic outlook. These include persistent constraints in electricity supply, freight rail and ports, and a high sovereign credit risk.
Hon members, our challenge is that the size of the pie is not growing fast enough to meet our developmental needs.
FISCAL OUTLOOK AND STRATEGY
As such, our fiscal strategy to support economic growth reduced risks to the economy, while ensuring fiscal sustainability.
Compared to a year ago, the budget deficit for 2023-24 is estimated to worsen from 4% to 4,9% of GDP.
The higher budget deficit means that debt-service costs in 2023-24 have been revised higher, by R15,7 billion to R356 billion.
Debt-service costs will absorb more than 20% of revenue. To put this into perspective, spending on debt-service costs is greater than the respective budgets of social protection, health, or peace and security.
For this reason, we are strengthening our strategy and sticking to our fiscal goals.
A net reduction of R80,6 billion in non-interest expenditure is being implemented over the medium-term. At the same time, revenue has been revised up by R45,6 billion over the medium- term, relative to 2023 MTBPS.
And, we have taken the decision to introduce a reform of the Gold and Foreign Exchange Contingency Reserve Account, also known as GFECRA.
Taken together, even with the spending increases I will announce later, the national government gross borrowing requirement will decline, from R457,7 billion in 2024/25 to R428,5 billion in 2026-27.
Debt will now peak at 75,3% of GDP in 2025/26.
All of this puts us in a position to continue to protect core services. It allows 60% of non-interest spending to be directed to the social wage. It also allows us to preserve capital spending.
Compared to the MTBPS, we are adding R57,6 billion to pay for the salaries of teachers, nurses and doctors, among many other critical services.
Madam Speaker, as I mentioned earlier, in this budget we are announcing a reform of GFECRA. GFECRA is an account held at the Reserve Bank that captures gains and losses. on the country’s foreign currency reserve transactions.
Simply put: if the rand strengthens against the US dollar and other reserve currencies, the account balance declines, and vice versa. The account balance has grown to over R500 billion over the years because the rand has depreciated over time.
A new settlement arrangement is being introduced that will reduce government borrowing and improve the Reserve Bank’s equity position.
Ultimately, we are bringing South Africa closer to our peers and ensuring alignment to international best practice. We will draw down R150 billion of the GFECRA balance once we have ensured that sufficient buffers are available to absorb
exchange rate swings and the solvency of the Reserve Bank is not compromised.
SUPPORTING ECONOMIC GROWTH
We have embarked on a broad structural reform agenda that aims to address the challenges that have held back our growth.
This agenda has included areas like electricity, logistics, water, telecommunications and visa reforms. The Budget Review details the good progress that has been made in these areas over the past few years.
But obstacles remain and let me focus on the two largest of these.
Electricity
Load shedding is a problem that confronts all South Africans. It disrupts production, operations and livelihoods.
Reforming the sector will result in long term energy security.
We took the necessary decisions in the past five years, and these are bearing fruit.
To promote further investments in renewable energy, this budget proposes an increase in the limit for renewable energy projects that can qualify for the carbon offsets regime, from
15 megawatts to 30 megawatts.
Eskom continues to be a key role player in the electricity sector. And the debt relief plan allows the entity to focus on its core business.
We will release the report on the independent review of Eskom’s coal-fired power stations in the coming week.
The review was done to inform part of the conditions attached to the debt-relief plan.
The recommendations will feed into Eskom’s corporate plans to bolster accountability and oversight.
It is through the combination of private investment in new energy projects, rooftop solar installations and improvements in Eskom’s generation fleet that load shedding will reduce, and reliability and security of supply improve.
In addition, to support these efforts, we are introducing a new R2 billion conditional grants over the Medium-Term Expenditure Framework, MTEF, to fund the rollout of smart prepaid meters.
This will begin with municipalities that have been approved for debt relief.
Logistics
To address South Africa’s increasingly unreliable logistics system, Cabinet approved the Freight Logistics Roadmap in December 2023.
The roadmap outlines immediate steps needed to improve port equipment, locomotive availability and network security.
It also sets out a clear path for enhancing efficiencies, facilitating the introduction of competition and leveraging the financial and technical support of the private sector.
In this regard, third-party access to the freight rail network will be introduced by May 2024.
In ports, a private partner has been secured to upgrade Pier 2 of the Durban Container Terminal. This should increase private investment in equipment, enhance technological capability and improve operational efficiency.
Government has provided Transnet with a R47 billion guarantee facility to support the entity’s recovery plan and meet its immediate debt obligations.
Like Eskom, the guarantee comes with conditions. These conditions require Transnet to focus on its core activities, and for the entity to introduce private sector partnerships. This will improve Transnet’s sustainability and support the implementation of the roadmap.
Supporting Public Infrastructure Investment
Madam Speaker, I am proud to announce that as part of this budget, we are introducing fundamental and far-reaching reforms to infrastructure financing and delivery.
The reforms are to optimise the infrastructure value-chain to be effective and efficient.
In this way, we will strengthen the public investment management and the associated value-chain. We will also attract private sector participation.
In this regard:
* We gazetted the amendments to the public private partnership, PPP, regulatory framework for public comments earlier this week. The amendments seek to reduce the procedural complexity of undertaking PPPs, create capacity to support and manage PPPs, formulate clear rules for managing unsolicited bids, and strengthen the governance of fiscal risk.
* We are reviewing institutional arrangements and governance for catalytic infrastructure. The intention is to create clearer mechanisms for accountability, co- operation and co-ordination.
* We are also consolidating similar functions to reduce duplication and inefficiencies. The intention is to fast-track delivery, particularly of blended finance arrangements.
* We are introducing several new financing instruments, such as infrastructure bonds and concessional loans. As part of this, a flow-through tax vehicle for specific infrastructure projects, similar to trusts and other investment vehicles, is being considered.
* A new funding window for proposals under the new dispensation of financing instruments will be opened to public institutions shortly.
Through these reforms, greater efficiency gains and infrastructure delivery will be fast- tracked.
What does that mean? Those who know BFI is a new window of the Budget Facility for Infrastructure, BFI.
Through these reforms, greater efficiency gains and infrastructure delivery will be fast-tracked.
This will benefit network sectors, social infrastructure, PPPs and blended finance projects.
Mainstreaming Climate Finance
Madam Speaker, the National Treasury plays a crucial role in mobilising resources, designing incentives, and influencing policy to mainstream climate change.
As climate-related disasters intensify, a multi-layered risk- based approach is being developed to manage the associated fiscal risks.
This considers various funding instruments from grants to contingency funds, including the Climate Change Response Fund, depending on the incidence and intensity of the disaster event.
The National Treasury is reviewing disaster response grants to improve efficiency and create incentives for disaster planning, preparedness and risk reduction.
It is also developing a climate-budget tagging framework to influence policy, planning, and budget decisions, by tracking climate-related expenditures in public budgets.
The support of concessional funding providers, such as Multilateral Development Banks, is going a long way to support our climate adaptation, mitigation, energy transition, and sustainability initiatives.
Crowding-in the private sector is necessary to managing the climate disaster funds.
The government has raised US dollars 3,3 billion so far from Multilateral Development Banks and International Finance Institutions to support climate change, energy, and just transition objectives.
We are actively participating in climate negotiations, aligning with the government’s advocacy for reforming multilateral finance institutions.
We are also working with eight municipalities to adapt and mitigate the effects of climate and weather-related events, by providing technical assistance for climate responsive.
capital projects.
Supporting the Production of New Energy Vehicles
The Electric Vehicles White Paper outlines our strategy to transition towards a broader new energy vehicle production and consumption in South Africa, starting with electric vehicles.
It aims to transition the automotive industry from primarily producing internal combustion engine vehicles to a dual platform that includes electric vehicles, by 2035.
To encourage the production of electric vehicles in South Africa, government will introduce an investment allowance for new investments, beginning from 01 March 2026.
This will allow producers to claim 150% of qualifying investment spending on electric and hydrogen-powered vehicles in the first year.
The incentive will be implemented in addition to the existing support under the Automotive Production Development Programme.
Government has also reprioritised R964 million over the MTEF to support the transition to electric vehicles.
Hon members, the Public Procurement Bill was expeditiously passed by the National Assembly.
The amended Bill has now been referred to the National Council of Provinces for concurrence. National Treasury is supporting provincial legislatures as they process the Bill and conduct nationwide public hearings.
The Bill provides for transformation measures through set asides, pre-qualification and advancement of persons disadvantaged by unfair discrimination.
These measures will be applicable to specify categories of persons including small enterprise owned by black people, black women, black youth, black people with disabilities, and enterprises in particular geographic area, including enforcement of transformation through the Broad-based Black Economic Empowerment, BBBEE, level status.
The Bill also makes provision for local industrialisation, through designation and measures for sustainable development, labour, absorption, and enterprise development, among others.
We are well aware that currently procurement processes often fall short of delivering the cost-effective solution to government’s needs.
We are well aware that currently, procurement processes often fall short of delivering the most cost-effective solutions to government’s needs.
Too often, there is a substantial disparity between the price’s government is being charged and the prevailing market prices.
For instance, the government buys information communication technologies, ICT, hardware such as laptops, uninterrupted power supply devices, monitors, and toners, at between 1,2 and
2 times more than market price.
Given that government buys in large quantities, we should in fact be paying less and leveraging our buying power to get more value for our money.
Obtaining value for money, as well as the principles of efficiency, transparency, and competition, remain paramount.
And we want to assure South Africans that these principles are not incompatible with transformation.
REVENUE TRENDS AND TAX PROPOSALS
Hon members, the weak performance of our economy has resulted in a sharp deterioration in tax revenue collection for 2023- 24.
IsiXhosa:
Yaqal’indaba kuba ndiza kule ndawo inzima ke ngoku yerhafu.
English:
At R1,73 trillion, tax revenue for 2023-24 is R56,1 billion lower than estimated in the 2023 Budget.
The shortfall is largely due to the decline in corporate profits and revenue from taxes on mining.
Over the medium-term, revenue projections are R45,6 billion higher than the 2023 MTBPS estimates which increased personal income tax and additional medium-term revenue proposals.
This budget contains tax measures that will raise R15 billion in 2024-25 to alleviate immediate fiscal pressure and support faster debt stabilisation.
Revenue is mostly raised through personal income tax by not adjusting the tax brackets, rebates and medical tax credit for inflation.
For alcohol products excise duties, above-inflation increases of between 6,7 and 7,2% for 2024-25 are proposed. This means:
* A can of beer increases by 14 cents;
* A can of a cider and alcoholic fruit beverage goes up by 14 cents;
* A bottle of wine will cost an extra 28 cents;
IsiXhosa:
Mthembu usakhuselekile.
English:
* A bottle of fortified wine will cost an extra 47 cents;
* A bottle of sparkling wine will cost an extra 89 cents; and
* A bottle of spirits, including whisky, gin or vodka, increases by R5,53.
IsiXhosa:
... salimala madoda. Siphakamisa ukuba ... hayi sibetha ooBEE apho ningangxami. Kwiwiski neza zinto sibetha ooBEE. Ukuba ulapho ke, nawe ulimemele mntakwethu.
English:
We are also proposing to increase tobacco excise duties by 4,7
% for cigarettes and cigarette tobacco, and by 8,2% for pipe tobacco and cigars. This translates to:
* A R9,51 cents increase for cigars;
IsiXhosa:
Uyabona ke Tubhana niyalimala.
English:
* 97 cents increase to a pack of cigarettes; and
* An extra 57 cents for a pipe of tobacco.
Kamogelo Mogane from Soweto, one of the over two-thousand- seven-hundred South Africans who sent Budget Tips to the Minister, has a suggestion I would like to share.
Kamo says, and I quote:
I would suggest an introduction of tax payment for hubbly bubbly, e-cigarettes and other alternatives. The country has seen an increase in the number of youths smoking these products and parents are not pleased with this at all.
Kamo, as a parent myself, I agree with you. And I am certain the Minister of Health also agrees.
You will be happy to hear then, that we are tabling an increase of the excise duty on electronic nicotine and non- nicotine delivery systems, known as vapes, to R3,04 per millilitre.
On environmental taxes, the carbon tax increased from R159 to R190 per tonne of carbon dioxide equivalent as of 1 January 2024.
The carbon fuel levy will increase to 11 cents per litre for petrol and 14 cents per litre for diesel effective from 3 April 2024.
A discussion paper outlining proposals for the second phase of the carbon tax will be published for public comment later in the year.
Madam Speaker, we are mindful of the already high cost of living and the impact fuel prices have on food and transport costs.
In this regard, we are proposing no increases to the general fuel levy for 2024-25.
This will result in tax relief of around R4 billion. This is money back in the pockets of consumers.
Madam Speaker, progress has been made on the two-pot retirement system since our last address during the MTBPS.
Contributions to the retirement funds system will be split with one-third going into a service component and two-thirds going into a retirement component.
IsiXhosa:
Ndifuna ukucacisa le nto ke bantakwethu kuba bantu bayandimisa bonke ezitratweni bendibuza ukuba, iphuma nini imali yethu.
Ize nibaxelele ke ngoku maLungu ePalamente xa nigoduka ukuba ukusukela ngomhla wokuqala kuSeptemba, bonke baza kuyifumana le mali. Ukusukela ngomhla wokuqala kuSeptemba, la mali yomhlalaphantsi iyafumaneka. Nam kufneka bayeke ukundiphazamisa endleleni.
Ndinodade wethu phaya oyititshala uNozicelo ode afune ukuba mandiyazi ukuba uza kufumana malini. Ndiza kuyazelaphi mna, kuba kaloku uza kuyazi yena kwimali yakhe yomhlalaphantsi.
English:
From 1 September 2024,
IsiXhosa:
Silwile noJoe ngale nto.
English:
We must commend hon Maswanganyi for being vociferous in making sure that the Bill is passed. We even fought on the timelines.
It was difficult to even persuade him because the industry was not ready. He wanted it to be effective from 01 April, but the industry was not ready. But he allowed us to postpone it to the 1st of September. Thank you, comrade Maswanganyi.
The two-pot system ensures that we strike a balance between preserving contributions to safeguard a better retirement for members, while addressing the plight of the people to access some of their retirement funds to help ease their financial burdens in times of distress.
Over the next few years, we are also implementing a global minimum corporate tax to limit the negative effects of tax competition.
Multinational corporations with annual revenue exceeding euros 750 million will be subject to an effective tax rate of at least 15%, regardless of where their profits are generated.
This is the global tax. That’s why even the benchmark is euros. It is an agreement in the Organisation for Economic Co- operated and Development, OECD. So, we are beginning to implement that. So irrespective of your gender, your profits are generated ...
IsiXhosa:
Siyakubetha.
English:
The proposed reform is expected to yield an additional R8 billion in corporate tax revenue in 2026-27.
I encourage interested parties to provide comments on the draft Global Minimum Tax Bill published today.
Our long-term tax policy strategy remains focused on broadening the tax base while improving tax compliance and administrative efficiency.
Visible progress has been made in rebuilding and modernising the South African Revenue Service, SARS.
The tax authority has expanded the tax register, improved debt collections and reduced fraudulent refunds and trade valuations.
These has led to improvements in revenue collection.
To address the high levels of illicit tobacco, SARS is deploying closed-circuit television, CCTV, and related technologies at licensed tobacco manufacturers.
Investigations and prosecutions have resulted in R10 billion in additional assessments from the key players in the illicit gold and tobacco industry, of which over R4 billion from key players in the illicit gold and tobacco industry.
These and other efforts have assisted with the improvement in revenue.
Our bigger challenge, as I have stated earlier, is that our pie is not growing fast enough, and this limits our ability to generate sufficient revenues to distribute among our priority. areas.
SPENDING PLANS
Madam Speaker, at the time of the 2023 MTBPS when revenue collection had performed much worse than anticipated, departments had to reprioritise spending and absorb the wage increase within their baselines.
These measures were taken to protect our fiscal integrity. Equally, critical programmes had to be protected. This is a practical expression of fiscal consolidation that supports delivery of core services and the social wage.
Since then, we have been able to reverse some of the fiscal consolidation announced at the time of the MTBPS.
In this budget, I am able to announce that the education sector is allocated an additional R25,7 billion for the carry- through costs of the wage increase over the MTEF.
At the same time, we were able to protect the budgets of critical programmes such as the School Nutrition Programme. The programme provides food to pupils in almost 20 000 school.
The early childhood development grant is allocated R1,6 billion rising to R2 billion over the MTEF.
Health is allocated a total of R848 billion over the MTEF.
These allocations include R11,6 billion to address the 2023 wage agreement, R27,3 billion for infrastructure, and R1,4 billion for the National Health Insurance, NHI, grant over the same period.
The allocation for the National Health Insurance, NHI, is a demonstration of the government’s commitment to this policy.
There remain a range of system-strengthening activities, that are key enablers of an improved public health care system, that must be undertaken.
Such activities include:
* Building a national health information system and digital patient records;
* Upgrading health facilities and improving quality of care to ensure that they meet the minimum criteria to be certified and accredited for contracting under NHI;
* Strengthening facility and district management in preparation for contracting;
* Granting semi-autonomous status for central and potentially other hospitals; and
* Developing reference prices and provider payment methods for hospitals.
Many of these activities are already underway but require further development before the NHI can be rolled out at scale.
Madam Speaker, there has also been significant progress in improving access to public transport services for low-income commuters.
The rail recovery programme of the Passenger Rail Agency of South Africa is continuing, with 27 corridors reopened by December 2023. This will increase the number of passengers on
Metrorail from 15,6 million in 2022-23 to an estimated 48,6 million by 2026-27.
To ensure the effective discharge of its duties during elections, and its other responsibilities beyond the polls, the Independent Electoral Commission is allocated an additional R2,3 billion.
The police and defence, purely for the elections, are also allocated an additional R350 million to support elections. A further R200 million will be allocated for political party funding as political parties prepare for the general elections.
Government also supports resettled farmers through land redistribution and tenure reform programmes, which have been allocated R6 billion over the, MTEF.
To keep pace with inflation and increase access, permanent social grants are increased.
IsiXhosa:
Bendihamba ngapha eGugulethu ndithukwa lelinye lamaxhegwazana phaya. Elinye lindikhomba ngentonga yokusimelela lisithi, wena khawukhe wohlukane nokusinyusela nge-R20. Ndifuna ukumqinisekisa la makhulu ukuba mna ndinesisa andizi kunyusa nge-R20.
English:
We are giving them.
* An increase of R100 to the old age, war veterans, disability and care dependency grants.
* This amount will be divided into R90 effective from April, and R10 effective October;
* A R50 increase to the foster care grant; and
* A R20 increase to the child support grant.
We are sensitive to the increase in the cost of living for the nearly 19 million South Africans who rely on these grants to make ends meet.
In this regard, we have done as much as the fiscal envelope allows.
Work is currently underway to improve the COVID-19 Social Relief of Distress Grant by April this year.
As the President has said that it is going to be improved. Work is being done.
The Department of Social Development is publishing regulations. When we finally gazette those regulation the new grant and figure will be published together with those regulations.
These improvements will be within the current fiscal framework.
For the extension of the grant beyond March 2025, we have made the point that it may have to find some revenue source for it.
We have also made provision for key initiatives aimed at job creation.
R61, 4 billion is allocated for employment programmes over the medium term. R7,4 billion has been identified for the Presidential Employment Initiative.
Government is also prioritising fighting crime and corruption with a focus on enhancing law enforcement agencies.
IsiXhosa:
Mamela, ayizi kukunceda ingxolo.
English:
The facts are on the table. We are doing the work.
IsiXhosa:
Asingxoli, siyasebenza.
English:
A total of R765 billion is allocated to the peace and security.
In the coming financial year, 10,000 new police recruits will be trained.
As part of the country’s responsibility to promote regional peace and stability, this budget will also allocate funding for the deployment of soldiers in Mozambique and the DRC.
Work on costing and identifying the needs for these critical missions will continue throughout the year and funding will be allocated as such.
An amount of R628 million has been allocated to the Department of Justice and Constitutional Development for the implementation of FATF and State Capture Commission recommendations bringing the total funding to these efforts to R2,3 billion.
Government is using R2,9 billion from the Criminal Asset Recovery Account to combat illegal mining and other priority crimes, with 60% allocated for police deployments, including vehicle procurement.
This budget is also prioritising infrastructure provision. Government plans to invest more than R943 billion in public infrastructure.
The spending will support the refurbishment and maintenance of existing assets and the building of new infrastructure.
DIVISION OF REVENUE
Madam Speaker, R2,8 trillion, or 51,1%, of total non-interest expenditures, is allocated to provinces and municipalities over the next three years.
And amount of R531,7 billion is allocated to local governments, and R2,3 trillion for provinces.
An additional R105,5 billion rand is allocated to provinces over the next three years to cover the cost of implementing the 2023 public-service wage agreement, mainly in the education and health sectors.
The provision of these additional funds will cushion the wage bill pressures faced by these critical, personnel intensive departments, while freeing up of resources for capital investment and goods and services.
Moreover, reductions that were previously made on some grants have been reversed.
Restoring the baselines of these grants will help maintain important services for the most vulnerable and provide for critical capital investments.
However, to ensure public finances remain sustainable, reductions are made to several other grant baselines, although many continue to grow over the next three years despite the reductions.
Regarding municipalities, an additional R1,4 billion is provided for the Municipal Disaster Relief Grant to fund the repair and reconstruction of infrastructure damaged by the tragic floods of 2023.
Madam Speaker, municipalities are the coalface of service delivery. Sadly, an unacceptable number of them are experiencing weaknesses in governance, financial management, and service delivery.
To address these challenges, and to transform municipalities into engines of growth, we have adopted a multi-pronged approach.
It focusses on tightening budget processes, ramping up oversight, increasing the skills and capacity of municipal employees, and driving investment in maintaining and building infrastructure.
THE YEAR AHEAD
Madam Speaker, this year our country hosts the annual meetings of the New Development Bank, which will happen for the second time since formation of the BRICS bloc.
In 2025, South Africa takes on the presidency of the G20, following that of Brazil and India.
Before that, South Africa’s G20 presidency is an opportunity for us to advance the most pressing economic, developmental, and financial issues that face poor and developing countries.
As President Ramaphosa rightly stated in his State of the Nation Address when he said, and I quote:
Our goal is to “place Africa’s development at the top of
the agenda when we host the G20 in 2025.”
We are working on the necessary allocations and identification of funds to make sure the various events are a success. As we have shown recently, South Africa remains an important regional and international leader.
Through participation and advocacy on platforms such as the G20, we can push for the substantive reform of multilateral institutions like the International Monetary Fund, IMF, and World Bank, so that developing countries can participate more equally in the decision-making processes and global governance.
Moral courage and know-how are not in short supply in our country. We should harness these gifts, not only to better ourselves and our economy, but for the benefit of the entire continent.
CONCLUSION
Madam Speaker, we have come a long way in the last 30 years. The 30 years ahead of us, and whatever challenges and opportunities they may bring, are something we should look forward to.
Given our difficult past, and some of the inevitable challenges we have faced as a young democracy trying to find its place in a world marked by a number of new and overlapping crises, it would be easy to indulge in extremes, either of blind optimism or crippling pessimism.
We should resist both these extremes.
Rather, we should heed the words of our first democratic President, Nelson Mandela, who more than most saw that the pursuit of socioeconomic justice and shared prosperity is a journey rather than a destination.
Allow me to quote him when he said:
I have walked that long road to freedom. I have tried not to falter; I have made missteps along the way. But I have discovered the secret that after climbing a great hill, one only finds that there are many more hills to climb. I have taken a moment here to rest, to steal a view of the glorious vista that surrounds me, to look back on the distance I have come. But I can only rest for a moment,
for with freedom come responsibilities, and I dare not linger, for my long walk is not ended.
IsiXhosa:
Inde le ndlela.
English:
Madam Speaker, as I conclude, I want to remind South Africans that the message they should take from this Budget is this: government is making the most out of very limited resources.
We continue to:
* Support economic growth;
* Reduce the growth of government debt and the cost of debt; and
* Allocate more funds for core services, provide for the social wage and preserve infrastructure budgets.
I am grateful to the President and Deputy President for their continued support and leadership.
IsiXhosa:
Hayi bekunzima kulo unyaka andifuni ukunixokisa. Loo nkxaso yenu ibifuneka nyhani.
English:
Thank you to the Deputy Minister of Finance, Dr David Masondo, and the excellent National Treasury team led by the Director- General, Dr Duncan Pieterse. The majority of whom are “Tintswalos.”
Thank you to the Commissioner of the South African Revenue Service and the Governor of the South African Reserve Bank.
Thank you to my colleagues in the Ministers’ Committee on the Budget and in the Budget Council who share the heavy load of the tough decisions that we make to maintain sustainable public finances.
To hon Maswanganyi Chairperson of Standing Committee on Finance Committees, hon Buthelezi ... [Interjections.] ... Of course. To my wife and family, your love, support and forbearance are a daily inspiration. Lastly, thank you to each and every South African. And those who have sending messages.
IsiXhosa:
Iyaguqa ekaTyhal’ibhongo inkwenkwe ngoku. Enkosi.
The SPEAKER: I thank the hon Minister of Finance. Order! The papers tabled by the Minister will be referred to the relevant committees. Hon members, I will now suspend the proceedings until 15:20. The House is Adjourned.
BUSINESS SUSPEND AT 14:54 AND WILL RESUME AT 15:20
BUSINESS SUSPENDED AT 14:52 AND RESUMED AT 15:31
The HOUSE CHAIRPERSON (Mr C T Frolick): Order, hon members, hon members, take up your allocated seats. Thank you. Hon members, I would like to draw your attention to the books of condolence for the late hon Alice Hlebani Mthembu and the hon Violet Sizani Siwela, which have been placed between the back entrance of the hall and the David Bloomberg room. Members are invited to sign the books of condolence at the end of today’s sitting. The books will be presented to the families during the condolence motions that are scheduled for 5 March 2024.
CONSIDERATION OF RECOMMENDATIONS FOR REMOVAL FROM OFFICE OF JUDGE PRESIDENT M J HLOPHE IN TERMS OF SECTION 177(1) OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996
Mr MAGWANISHE: House Chairperson, His Excellency the Deputy President, the Speaker of the National Assembly, the Deputy Speaker, Ministers and Deputy Ministers, and hon members.
There is a Latin phrase that states, Quis custodiet ipsos custodes, loosely translated, it means who will guide the guards themselves or who will watch over the watchmen, or who will judge the judges. At the heart of this phrase lies the question: How will those who wield power and are entrusted to protect us, be held accountable?
After centuries of oppression, discrimination, dispossession, and grave injustices, the democratic breakthrough ushered in a paradigm shift. The adoption of the Constitution ushered in a new order in form and in substance. From the supremacy of Parliament to a constitutional democracy in which the Constitution is the supreme law, and any law and conduct inconsistent with the Constitution is invalid. We adopted the Constitution and constitutional democracy as our new path. Our
Constitution is reflective of the kind of nation we chose. We chose to have a country built on the supremacy of the Constitution, espousing human rights, culture, and respect for the rule of law applicable to all persons in equal measure.
Our constitutional structure embodies protection from abuse of power. The texture of our Constitution is measured by systems of accountability with appropriate checks and balances. We can confidently say that it is the Constitution that chose the judiciary as the guardian of our nation, our people, our institutions, our democracy, and the Constitution itself.
Courts are the final arbiters in disputes. The judiciary is often referred to as the last line of defence. A great deal of responsibility rests on the shoulders of the judiciary, so much that the Constitution guarantees its independence. If a court does not have independence, it cannot function as a court. Judicial independence stems from the doctrine of separation of powers and is at the heart of the rule of law.
Our judicial system requires of every judicial officer sitting alone or in a panel to apply their mind independently and without succumbing to the influence of fellow judicial officers. It entails that a judge must take all reasonable
steps to ensure that no person or organ of state interferes with the function of courts. A judge bears the responsibility of upholding the independence, integrity, and the authority of the courts. When the very same judges are found wanting, how do we then hold them accountable? Who judges the judges?
The Judicial Services Commission, JSC, is an important organ of the state. It safeguards judicial competence and independence. Its composition includes members of the judiciary, legal experts, the executive, and the legislature. The JSC functions to protect the judiciary from undue influence, preserve judicial independence, and regulate judicial ethical conduct. Regarding judicial ethical conduct, the JSC is the jury of the nation.
On 30 May 2008, 11 justices of the Constitutional Court lost a complaint with the Judicial Services Commission against Judge President of the Western Cape Division of the High Court, Judge John Mandlakayise Hlophe, alleging that during discussions with justices BE Nkabinde and CN Jafta, both of the Constitutional Court, he improperly attempted to influence the Constitutional Court’s pending judgment on Zuma v Thint matter. After several years of delay occasioned by various
litigations, a judicial conduct tribunal appointed by the Chief Justice to investigate and report on the complaint found Judge Hlophe’s conduct to be in breach of a provision of section 165 of the Constitution in that he improperly attempted to influence the two justices of the Constitutional Court to violate the oath of office. Additionally, the JCT found that Judge Hlophe’s conduct threatened and interfered with the independence, impartiality, dignity, and effectiveness of the Constitutional Court and that it threatened public confidence in the judicial system. The JSC having considered the JCT’s report, the record, and submissions from the parties by a majority decision decided to uphold the JCT’s decision that Judge Hlophe is guilty of gross misconduct as envisaged in section 177 of the Constitution.
Section 177 of the Constitution provides for the removal of judges setting out a three-stage process as follows:
(1) A judge may be removed from office only if –
(a) the Judicial Services Commission finds that the judge suffers from an incapacity, is grossly incompetent or guilty of gross misconduct; and
(b) the National Assembly calls for that judge to be removed by a resolution adopted with a supporting vote of at least two-thirds of its members.
(2) The President must remove a judge from office upon adoption of a resolution calling for that judge to be removed.
(3) The President, on the advice of the Judicial Service Commission, may suspend a judge who is the subject of a procedure in terms of subsection (1).
In the matter of Hlophe v the Judicial Service Commission on paragraphs 152-155, the South Gauteng High Court clarified the distinctive rules set in Section 177 of the Constitution and the proper parameters for those rules and held that, and I quote:
The structure of Section 177(1) plainly provides that a judge can be removed if the JSC finds that the judge is guilty of gross misconduct. That finding is a jurisdictional precondition to the National Assembly contemplating a resolution to remove a judge. The
decision as to whether misconduct occurred is that of the JSC alone.
There is no provision in section 177 for re-hearing of the complaint by the National Assembly
Guided by the High Court’s interpretation of section 177 of the Constitution, the committee developed steps to allow for sufficient engagement with the affected judge and deliberations to empower its members to make an informed political decision about the remedy determination as a consequence of the JSC finding. The matter was referred to the committee for consideration and report on 2 September 2021.
Shortly after the matter was referred to the committee, Hlophe JP took the JSC decision of 25 August 2021, in which its majority resolved that he had committed gross misconduct on review.
On 5 May 2022, a full bench of the Johannesburg Division of the High Court in the Hlophe judgment dismissed the application stating that Hlophe JP had failed to raise grounds for proper review. On 14 September 2023, the National Assembly Programming Committee at its meeting resolved that the
committee should proceed to consider the JSC findings of gross misconduct for recommendation to the National Assembly as to whether a removal should follow as a consequence.
Regarding the procedure to be followed, the committee noted the clarity provided by the Hlophe judgment on the specific roles assigned to the JSC and the National Assembly in giving effect to section 177 of the Constitution. The committee developed steps to allow for sufficient engagement with the affected judge and deliberations to empower its members to make an informed political decision about the remedy determination as a consequence of the JSC findings. The court clarified that the National Assembly’s role is not to rehear the matter as that question is a question of merit already settled at the JSC finding stage. In making its determination, the National Assembly makes a political decision.
The committee wrote to Judge Hlophe in a letter dated 4 October 2023, inviting him to place any extenuating circumstances that he considers relevant to the committee’s deliberation as to whether his removal from office is an appropriate response to an already proven gross misconduct.
The representation should be in writing and should reach the committee by no later than 15 November 2023.
In response, the committee received a letter from Hlophe JP, dated 17 October 2023. The committee considered the contents of the letter at the meeting of 24th October 2023 and replied to him on 25th October 2023, inviting him once again to make representations on any extenuating circumstances that he considered relevant as to whether his removal from office is the appropriate response to the already proven facts. The committee requested that he refrain from addressing merit issues already settled in terms of the JSC process.
The committee noted as a legal fact that the JSC’s findings of gross misconduct against Hlophe JP referred to the National Assembly in terms of section 20(4) of the JSC Act, read with section 177(1) of the Constitution. The National Assembly as an extension of Parliament exercises public power. In the case of the State v Makwanyane, the Constitutional Court said that the exercise of public power, including law-making, should be rational and not arbitrary. Rationality is understood as a rational relationship between the measures adopted and the legitimate government purpose.
As we take this decision on this matter, we must remind ourselves that our decision must be rational. The process of removal of a judge in a democratic South Africa is not an occasion for ululation and celebration. This process is one of accountability and allows us to reflect as a nation. Fellow South Africans, this process of accountability has emphasized the point that to whom much is given, much is required.
The Portfolio Committee on Justice and Correctional Services having considered the letter from the Acting Deputy Chief Justice of the Republic of South Africa and acting chairperson of the Judicial Service Commission, Justice SSV Khampepe on the Judicial Service Commission’s decision relating to a complaint brought by justices of the Constitutional Court against Judge President MJ Hlophe, the majority, and the minority decisions of the commission, as well as the report of the judicial conduct tribunal submitted in terms of section
177 of the Constitution referred to it, recommends that the National Assembly resolve to call for the removal of Judge Mandlakayise John Hlophe from office. [Applause.]
Adv G BREYTENBACH: House Chair, hon members, the impeachment of Judge President John Hlophe stands as a pivotal moment in
the annals of the South African judiciary. It requires us to delve into the intricate layers surrounding the impeachment proceedings, examining the allegations and the legal framework, and the broader implications for judicial integrity and accountability.
John Hlophe, a prominent figure within the South African legal sphere, served as Judge President of the Western Cape Division of the High Court. His career was not devoid of controversy, both personal and professional, but it was the allegations of egregious misconduct that sparked this impeachment process.
Hlophe had it all going for him, exceptionally well-educated, clearly extremely intelligent. He had all the makings of a stellar judicial career. When appointed by President Mandela, he was the youngest judge to be appointed to the bench. Yet he was tripped up by the lack of that most essential component of any judge, integrity. Hlophe has demonstrated amply that he possesses no shred of integrity, and for that reason, he will become the first judge to be impeached since the dawn of democracy. The allegations against Hlophe revolve around seriously improper conduct related to several high-profile cases. He has been found to have improperly attempted to
influence Constitutional Court justices in matters involving the corruption charges against then-President Jacob Zuma. This interference raised serious concerns about the impartiality and independence of the judiciary.
This process, initiated by the DA in 2008 against Judge Prisoner Hlophe was protracted and complex. It involved extensive investigations, hearings and deliberations by the Judicial Service Commission, JSC. Political interference, legal technicalities and public scrutiny complicated the proceedings. Civil society was forced to join the fray, there being a perceived distinct lack of appetite to deal with Hlophe and his nefarious activities. It is a great indication of our Constitution and the rule of law that we have finally reached this point, albeit very belatedly.
The impeachment of Hlophe, or any judge has profound implications for judicial integrity in South Africa. It underscores the importance of upholding the highest ethical standards amongst judicial officers. It also sends a clear message that no one, regardless of their position or influence, is above the law. Moreover, it affirms the principle of judicial independence as the cornerstone of
democracy and boldly underlines the principle of the rule of law. This debate highlights the need for robust mechanisms to address allegations of judicial misconduct promptly and effectively. It also emphasises the importance of transparency and accountability in the judiciary. Furthermore, it underscores the role of public trust and confidence in the legitimacy of judicial institutions. The impeachment of Hlophe represents a critical moment in our legal history.
It symbolises the country's commitment to upholding the rule of law and preserving the integrity of its judiciary. Moving forward, it is imperative to learn from this experience and strengthen the mechanisms for safeguarding judicial integrity in South Africa. Hlophe tried a final roll of the litigious dice by attempting to interdict the impeachment vote in Parliament today. He was always fighting a losing battle, but in doing so, he has underscored the fact that he cares nothing at all for the judiciary, its image, or its integrity. He has again placed his own narrow personal interests above those of the South African people he has demonstrated again that he is wholly unsuitable to be a judge.
The doctrine of the separation of powers is an integral part of South Africa's constitutional setup. It means that we, the members of the National Assembly, cannot second guess the JSC's legally binding decision that Hlophe stands to be impeached. It is a function of the JSC to decide on gross misconduct on Hlophe’s part, and it has done so. The role of the National Assembly is confined to voting on whether to call upon the President to remove Hlophe from office. This conclusion is the only legally viable interpretation of the wording of section 177 of the Constitution.
Hlophe is hoisted by his own petard. He deserves no sympathy in the vote now before this House. He has done great damage to the administration of justice, especially in his division, and his antics have undermined the rule of law. He has tainted the image of the entire bench, and it will take a long time to eradicate the odour of his antics. All parliamentarians who have read the Zondo Commission report should today know where their solemn duty to uphold the rule of law lies. We urge all members to support the recommendations of the committee. I thank you. [Applause.]
Adv B J MKHWEBANE: Chairperson, today this House is required to endorse what is essentially a culmination of a concoction of deep-rooted racism in the judiciary, the political vindictiveness of the ruling elite and the failure of the
post-1994 establishment to create conditions for black men and women to prosper in the legal profession. Judge President Hlophe, a distinguished judge and an exceptional legal scholar, is about to be the first victim of a toxic and unforgiving culture of impaling black people who dare stand up against the dominant, liberal and racist discourse in this country which is more pronounced in the Western Cape.
His only sin is that he simply discussed the law with his colleagues. Let's give a brief timeline of why we are here. On
30 May 2008, 11 justices of the Constitutional Court lodged a complaint with the JSC against Hlophe, alleging that during the discussion with Justices Nkabinde and Jafta, both of the Constitutional Court, he improperly attempted to influence the Constitutional Court. On 30 June 2008, Judge Hlophe expressed concerns about political motives and inappropriate pressure when Justices Nkabinde and Jafta declined to bring a complaint against him. In July 2008, Hlophe filed a High Court application alleging unconstitutional conduct by the justices
of the Constitutional Court. The application claimed infringement of his rights to human dignity, privacy, fair hearing, equality, and access to courts. In September 2008, the court ruled that some of Hlophe’s rights were ultimately violated. However, in 2009 March, the Supreme Court of Appeal reversed the High Court's finding on the infringement of his rights. Subsequently, in August 2009, the subcommittee of the JSC found no sufficient evidence of gross misconduct against Hlophe. Despite this, in August 2009, the Judicial Service Commission issued a rebuke and a caution.
So that's the first time, he was not found guilty of any gross misconduct. Coming back to the very same issue, then there was this Judicial Conduct Tribunal, JCT, which was established after that incident, which proceeded to reinvestigate the matter and proceeded, in which Judge Nkabinde and Judge Jafta launched a court application indicating that they were reviewing this decision because that was not properly done, but they also lost in court. Then finally this matter was heard before the tribunal and the fact of the matter is that Justice Hlophe raised this matter and even brought during the hearing an expert witness who testified ...
IsiZulu:
... ngesiZulu washo ukuthi lokhu owayekushilo kwakuwukuthi bayasebenzisana namanye amajaji ...
English:
... and indeed, the corrections were made to the statements during that hearing. Consequently, Judge Hlophe also contended that the JCT and JSC exceeded their powers in the exercise of their powers, and they acted beyond their powers. So, he further holds that the National Assembly should have engaged the JSC's finding beyond simply just accepting it because we remember that even the Premier of the Western Cape, “Judge” Winde, also was one of the culprits. There was a lot of political interference and even jealousy and the treatment which Hlophe received from his counterparts.
We reject this selling out of our liberation ideas. We reject the abuse of Judge Hlophe and deem all this as unconstitutional behaviour. The judge was tried twice when the first hearing exonerated him, but we have bugging people who have racist tendencies and the Freedom Under Law, also under Mr Krigler, who has been found guilty as well of acting out of his mandate. So, they abuse Judge Hlophe.
This is not about justice. It is about gross misconduct on Judge Hlophe. In the main, about whites flexing their power over their puppets in the government to punish Hlophe.
IsiZulu:
Thumbeza! Bantu baKwaZulu-Natal, mndeni wakwaHlophe, oThumbeza
...
English:
... we know as EFF that the judge is highly qualified and did his work with dignity. Punish this ANC government. Thank you. [Interjections.]
Mr N SINGH: Hon Chairperson, I have learned over many years as a father, grandfather, a politician and person serving on several committees that facts must speak for themselves, irrespective of race, colour, creed or religion, when considering any matter. And in this case, after having read the reports, and gone through the facts, there is no doubt that the conjecture that we just heard from the previous speaker cannot trump the facts.
The judiciary plays a vital role in upholding and adjudicating the law and ensuring justice. Therefore, it is crucial that judges exemplify good conduct, both professionally and privately. Any failure to do so can erode public trust and confidence in the rule of law, which is essential for maintaining the integrity of the legal system. Judges are the final arbiters of justice. And any indication of impropriety can undermine the credibility of their decisions and negatively impact public trust.
Therefore, judges must demonstrate integrity and adhere to ethical standards to uphold this rule of law. When judges exhibit integrity, they are viewed as honest, ethical and reliable, which enhances public confidence in the fairness and impartiality of the legal process.
Currently, this House will be considering two matters that involve the removal from office of two judges. This is being done as we’ve heard under section 177(1)(b) of the Constitution and based on allegations of gross misconduct. One of the concerns that the IFP has is the delays that it takes, the long delays that it takes before this matter is finally considered.
In the matter of Judge Hlophe, the first complaint was lodged in 2008 and it is 16 years later that we are considering this matter. However, we all know that the law must take its course and there are provisions for appeal mechanisms, which the hon judge has used.
You know, I served, and I’ve been serving on the Judicial Services Commission, JSC, now for 15 years. This is my fifteenth year. And sometimes people misconstrue the JSC, which is the one that some of us politicians serve on, on behalf of Parliament, and what is called the small JSC, which excludes us Members of Parliament when matters of judicial conduct, allegations of misconduct are considered. It was the small JSC that considered this matter, because we cannot be referees and players at the same time. And then this matter, as we heard, also went to the Judicial Conduct Tribunal, JCT. The JCT found that Judge Hlophe’s conduct threatened and interfered with the independence, impartiality, dignity and effectiveness of the Constitutional Court. Furthermore, they found that it threatened public confidence in the judicial system.
We want to agree that Judge Hlophe is a renowned judge. He is really a jurist of note that has been a person where many, many young black jurists have followed his career path. It is unfortunate that we have to come to the stage, where it will be the first time in the history of this Parliament and at the end of the Sixth Parliament that a judge has to be removed from office. We had another impeachment not so long ago, but that was another matter. [Laughter.] So, the IFP will support the recommendations contained in this report. Thank you very.
Mr F J MULDER: Hon House Chair, if Judge President Hlophe is removed today, history will be made for all the wrong reasons, but it will show, in the end, that South Africa’s Constitution, while tested to the limits by the likes of former President Zuma and Judge President Hlophe, has held fast, but not without being scarred and bruised.
This is a moment of truth, not only for South Africa’s commitment to the rule of law, but also in understanding the political sphere that has plagued the country’s judiciary for almost two decades.
In April 2021, 17 years after this and 13 years after Hlophe’s attempt in 2008 to influence the constitutional judges seized with President Zuma’s corruption probe matter, the Judicial Service Commission, JSC, Tribunal added the footnote for the history books of South Africa. Judge President Hlophe, while consistently paying lip service to and apparently embracing the values of the Bill of Rights and the Constitution has from the word get-go publicly behaved in a manner contrary to his declarations of fidelity to the rule of law or even common human decency. His actions have undermined every purpose of the Judicial Service Council, which is to prevent perceived and real political influence in the judiciary.
In his appeal against the JSC Tribunal’s finding of gross misconduct, Judge President Hlophe sought to paralyse the entire system of accountability, suggesting every judge in the country was compromised and had no right to sit in judgment.
The Judge President’s litigation mission was aimed at avoiding the far-reaching and devastating consequences too impersonally, should he be impeached.
Afrikaans:
President Ramaphosa het uiteindelik hier aan die einde van die Sesde Parlement ’n stap geneem waarmee die VF Plus kan saamstem. Die VF Plus steun die aanbeveling om Regter President Hlophe uit sy amp te verwyder. Dankie.
Mr S N SWART: Chairperson, the ACDP wishes to agree with the Chairperson of the Committee on Justice Portfolio, the hon Magwanishe, when he said: “To whom much is given, much is required.” And the Supreme Court of Appeal, SCA, has already found that a judge is the pillar of our entire justice system and of the rights and freedoms that that system is designed to provide and protect.
And so, we need to be very sober-minded as we consider the implications of today’s impeachment. We are not only impeaching for the first time a judge, but a Judge President of the High Court. But, that being said, no-one is above the law - not a judge, nor a judge president.
And we clearly need to strengthen the mechanisms. It can’t be correct that it takes so long for a matter like this to be finalised with a lot of litigation involved. And yes, everyone is entitled to approach the courts for reviews, but it has
taken a number of years to reach the conclusion that the Judicial Services Commission found, on the merits, having considered the Judiciary Conduct Tribunal, and the decision that Judge President Hlophe is guilty of gross misconduct, as envisaged in section 177 of the Constitution.
Now, it is very important to bear in mind that what we are dealing with today is as the Supreme Court and Constitutional Court have set out, that there are different roles assigned to the Judicial Services Commission and the National Assembly.
They are not overlapping. Neither the National Assembly nor the Judicial Services Commission are subordinate to one another. The Judicial Services Commission is vested with the power to make a decision based on the norms of judicial ethics, in other words, the merits of the case. The National Assembly looks into the matter and takes a political decision.
We are not here to reconsider the merits of the matter; this is a political decision. Our role is confined to voting on whether to call upon the President to remove the judge president from office.
The committee fully considered the documentation before it, including written submissions from Judge President Hlophe, applied its mind through deliberations, and by majority, noted the arguments placed before it and found no extenuating circumstances that would support a decision on its part not to recommend that the National Assembly be resolved to call for the removal of Judge President Hlophe from office.
The ACDP supports this report and impeachment of Judge President Hlophe. It is anything but a concoction of deep racism in the legal profession. I thank you.
IsiXhosa:
Mnu N S L KWANKWA: Ningena phi ukuba ndivela phi?
English:
House Chair, the step we are undertaking today confirms once more that no one is above the law. Those who have been found wanting, those who have not been up to the exacting standards expected of a judge be dealt with and those in our different arms of government who do not live up to the expectations of their office be held to account.
IsiXhosa:
Asikwazi ukuba singamohlwayi umntu xa emosha, ngenxa yokuba engumntu ontsundu abe emosha. Emakugqibele, kukuba siza kuyenza loo nto. Hayi benithethile apha kwaye mna andisayi kuva ngani, ningase nihambe niye kuzixhoma.
English:
The judicial misconduct breaks down the very fiber of what is necessary for a functional judiciary. Perhaps, like Ceaser’s wife, those who run such office should be above and beyond reproach. Unfortunately, in this instance and in this case Judge Hlophe was found wanting and for that he must be held to account. We are here as a party to say that we support the recommendation for Judge Hlophe to be impeached.
His matter was simply put: There is a difference between will and judgement. What he attempted to do and the allegations contained in that Report showed that what he was actually doing was trying to impose his will as opposed to allowing colleagues to interpret and apply the law and evaluate whatever matters there before them for their consistency or lack thereof with the Constitution. Is it not that what is
expected of anyone who holds an office as a judicial officer, right?
So, an imposition of will of policy preference on the part of those who hold that office constitutes a betrayal of your judicial duty, is not it? If you have done so what must we do? Come here play politics, use political rhetoric and be afraid of taking the necessary decisions that we must take in order to uphold, maintain and keep the independence of the judiciary?
IsiXhosa:
Asokuze sijike, siphosise, kuba injalo.
English:
We support the recommendation ...
IsiXhosa:
Akufunekanga ukuba sithi, kuba singabantu abantsundu simoshe, senze izinto ezingalunganga...
English:
... and we run divisions as if they are our fifth ... [Inaudible.] ... and then we expect not to be held to account when we are found wanting. Thank you.
Ms T L MARAWU: House Chair, the African Transformation Movement stands firmly behind Judge President John Hlophe amidst the calls for his impeachment. Judge Hlophe’s contribution to the judiciary and his steadfast advocacy for decolonisation of the legal framework cannot be overlooked. Throughout his tenure he has tirelessly worked towards ensuring that African indigenous law is given the recognition and respect it deserves within our legal system.
Throughout his tenure as the Judge President of the Western Cape division of the High Court, Judge Hlophe has left an indelible mark to his dedication to justice and his tireless efforts to advance the course of decolonisation within the legal system. In 2004, Judge Hlophe courageously addressed issues of racism within the legal profession by submitting a comprehensive report to Chief Justice Pius Langa. That report highlighted instances of racial discrimination within the Western Cape High Court demonstrating his commitment to upholding fairness and equality in the legal system.
Judge Hlophe has been a vocal advocate for the recognition and the ... [Inaudible.] ... of African indigenous law within the SA legal framework. His efforts to ensure that the African legal traditions are given due respect and consideration have been instrumental in promoting cultural diversity and inclusivity within the judiciary. His prudence has contributed to the development of ... [Inaudible.] ... legal decisions and precedence that have shaped the legal landscape in South Africa. His judgments reflect a deep understanding of the complexities of the law and the commitment to uphold justice for all citizens regardless of background or status.
It is imperative to acknowledge that the current legal framework in South Africa is deeply rooted in the Roman Dutch Law which often marginalised the African indigenous law. Judge Hlophe’s efforts to challenge the status quo and elevate African indigenous law are commendable and align with our vision for a more just and equitable legal system. It is crucial for this House to recognise unwavering commitment to advancing the course of justice for all South Africans. We firmly believe that Judge Hlophe’s leadership is integral to the ongoing transformation of our legal system. We stand by
him in his endeavors to decolonise and uplift the African indigenous law.
It is deeply troubling to witness the concerted effort by the ANC government often with the support of the sister parties and the Democratic Alliance to undermine the credibility and integrity of black professionals within the legal system and often in other professions. The Judge President John Hlophe’s unwavering commitment to challenging the status quo and advocating for meaningful transformation has undoubtedly raffled feathers among those who benefit from ... [Inaudible.]
... [Time expired.] ... We stand behind Judge Hlophe ... [Time expired.] ... and affirm our full support and ...
IsiXhosa:
Phantsi ngokugxothwa kuka-Judge Hlophe, phantsi!
Mr B N HERRON: House Chair, today we face the unenviable task of implementing section 177 of the Constitution to consider the removal of Judges Hlophe and Motata. South Africa’s judicial system is a key instrument for the maintenance of its overarching integrity. All people in sectors of society depend on the judiciary’s impartiality and independence in order to
be able to hold the state accountable for its integrity and the integrity of its administrative decisions.
In this space judges cannot be viewed as harboring political agendas. Ultimately, an impartial and independent judiciary provides the bedrock of confidence in our democratic order. The system relies on the fact that no one can be above the law; not a judge, not a judge president and not even the President. That is the constitutional besides ethical principle that we are tasked with demonstrating today.
Chapter 8 and section 165 of the Constitution provides that the courts are independent and subject only to the Constitution and the law and that no person may interfere with the functioning of the courts. Section 174 of the Constitution requires that our judges are fit and proper persons. The Judicial Services Commission has discharged its constitutional duty to conduct hearings to determine whether these judges are guilty of gross misconduct. Ours is not to debate the merits of those findings. We were not party to the evidence or to second guessing the Judicial Services Commission ruling or finding.
The courts have said that the decision as to whether misconduct occurred is that of the Judicial Services Commission alone. The National Assembly receives that finding as a fact and deliberates thereupon not to reconsider it but to decide what to do based on it. With those who are trusted with ensuring the rule of law ... [Inaudible.] ... and seem to be done and found to have broken the law and have been found guilty of gross misconduct, then, there’s a duty on the National Assembly to reinforce the principle of the Constitution and the rule of law. That requires us to support the committee’s recommendations in both cases and remove the judges from office. Thank you.
Ms A RAMOLOBENG: Thank you, House Chair. Deputy President of the Republic, members of the executive, Chief Whip and all members of the legislatures and hon members. As we debate on the removal from office, a member of the judiciary embarking on a novel process in the democratic dispensation, it is befitting to remind ourselves of what our former Chief Justice Arthur Chaskalson had to say, and I quote:
Judicial independence is a requirement demanded by the Constitution, not in the personal interest of the
judiciary, but in the public interest. For without that protection, judges may not be or be seen by the public to be able to perform their duties without fear or favour.
Judicial independence entails the ability of a judge to make a decision without undue influence and interference from internal and external forces. Moreover, the judge must have security of tenure and financial security in order to guard against bribery and related interference and corrupt conduct.
Furthermore, the judiciary must manage its own administrative functions and activities. In essence, a judiciary that does not have individual or personal and institutional or functional independency falls short of the core requirements of judicial independence.
House Chair, the core function of a judge is to form a view from the facts and the law, and to make a determination or take a decision. Our judicial system requires of every judicial officer sitting alone or in a panel to apply their mind independently and without succumbing to the influence or pressure from a fellow judicial officer – hon Mkhwebane.
Ethics instructs a judge to avoid apparent or real conflict of
interest and impartiality. It is a central pillar of any judicial role.
House Chair, in the case of Nkabinde and Another v Judicial Service Commission and Others (20857/2014) [2016] ZASCA 12, the Supreme Court of Appeal referenced a Canadian Supreme Court judgment that related to a Canadian judge, but that was equally applicable to South Africa. The salient points of the Canadian judgement were as follows. Firstly, the judicial function is absolute unique. Apart from the traditional role as arbiters of disputes, judges are also responsible for preserving the balance of constitutional powers and have to become one of the foremost defenders of individual freedoms and human rights, and guardians of the values. The Canadian Charter embodies.
Secondly, the judges, the pillar of the entire justice system and of the rights and freedoms of which the system is designed to promote and protect. Lastly, accordingly, the personal qualities, conduct and image that a judge projects affects those of the judicial system as a whole and have a significant impact on public confidence in an effective judicial system and in a democracy founded on the rule of law.
Chairperson, the Judicial Service Commission, which has been described as a jury of the nation when disciplining judges, did not on the facts accept that Judge President Hlope had no intention to influence the two judges. It also did not accept that Judge President Hlope was ignorant of an obvious norm of ethical behaviour amongst judges, restricting their discussions about pending judgment.
A free and independent judiciary is crucial to the success of a relatively young democracy. The independence of the judiciary should always be protected. In a constitutional democracy., the judges’ responsibilities go beyond the high standard of judicial and legal professional conduct. They are expected to be individuals with the integrity, not only to speak the values contained in the Constitution, but also to act in a way that demonstrate integrity with respect to the supremacy of the Constitution and the rule of law.
The portfolio committee received Judge President Hlope’s submission on extenuating factors that it was dealing with the matter, and was the committee was not persuaded. We are confident that we have applied our minds to the facts and laws before us and are of the view that the shortcomings of the
Judge President Hlope are so serious to destroy confidence in the judge’s ability to properly perform the judicial function. House Chair, the ANC supports the report that has been tabled here. I thank you. [Applause.]
Mr S M JAFTA: Thank you, hon Chair. In his formal complaint to the Judicial Service Commission against Judge President Hlope, the then Chief Justice Pius Langa, said the following, and I quote:
The attempt to influence Nkabinde J and Jafta C L was calculated to have an impact not only on the individual decisions of the judges concerned, but on the capacity of the Constitutional Court as a whole, to adjudicate in a manner that ensures its independency, impartiality, dignity, accessibility and effectiveness, as required by section 165(5) of the Constitution.
President Hlope has no regard for the rule of law. He does not respect the Constitution, the people of South Africa and this Parliament. Just recently he was mounting a relentless fight against the Speaker of this Parliament, demanding that Parliament halt its impeachment proceedings against him,
pending his application to the Constitutional Court. As a judge President Hlope must appreciate that Parliament has not been interdicted to proceed with this matter.
It is ironic that it was Judge Hlope in Speaker of National Assembly v De Lille MP and Another (297/98) [1999] ZASCA 50, who cautioned that Parliament, however its eminent scholarship, cannot engage in conduct that is not sanctioned by the Constitution. By trying to prevent Parliament from carrying out its mandate, as sanctioned by the Constitution, Judge Hlope is not living up to his judgment.
The behaviour of Judge Hlope and his conduct is at variance with the oath of office he took before ascending to the bench. This impeachment must send a clear message to judges that the only bias they are required to have is to the Constitution.
Judges must also remain biased towards the rule of law. The people of South Africa and their oath of office.
Judge Hlope is disgraceful. He is conduct is criminal. It is akin to committing treason. In removing Judge Hlope from the bench, we will be honouring the legacy of the lives of Justice Chaskalson, Justice Langa, Justice Skweyiya and Adv George
Bizos, who tirelessly sought to protect the image of the courts and promote judicial independence. The AIC supports the recommendation of the committee. Thank you.
Mr M G P LEKOTA: Hon President, members of the House, we have looked carefully through the documentation that has come with the recommendation. We are quite satisfied that that the men and women... We, the Congress of the people. [Interjections.] We are satisfied. I ask for your protection.
The HOUSE CHAIRPERSON (Mr C T Frolick): Order, hon Members! Order! Order, hon members!
Mr M G P LEKOTA: We are satisfied that the men and women who were tasked with the task of evaluating the case and made the recommendation they made to the House were competent. We support the recommendations. [Interjections.]
Mr M NYHONTSO: House Chairperson, the PAC of Azania, once more, will reject this report by ANC of South Africa. The point is that Parliament is independent. It is the third arm of government. It cannot just take a report from the judiciary
and vote on it. This is against the separation of powers. Parliament should set an Ad hoc committee to investigate this.
This is more so because it is the judges themselves who are fighting. They cannot, therefore, impose their differences on Parliament. Parliament does not have rules for now to remove a judge. They must be made first. On the merits, judges discuss legal matters with other judges. This happens every day. He is accused of trying to influence two judges, but they say they did not feel influenced, and he did not push his views, so said they are not complaining about anything.
The senior judges then complained as a court. Judge President is innocent. He must be allowed to resume his duties.
IsiXhosa:
Ndiyaqala ukubona abantu abalwela inkululeko bathi bakukhululeka bangcikive aba bantu bebalwela.
English:
Mr M G E HENDRICKS: Hon House Chair, in the late 1989, the Regional Court President made the recommendations regarding imposition of sentencing in South Africa. Consequently, to
Parliament’s acceptance of the crucial committee report, Parliament enacted the provisions of Section 276, of Act 51 of 1997. This marked a shift from punishment to rehabilitation within the South African Criminal Justice System. This was further entrenched by the recognition and implementation of the concept of restorative justice.
It is submitted that the suitable punishment to be imposed upon the hon Judge Hlophe will be a fine of R10 000 Rand wholly suspended and not impeachment. Impeachment must be a matter of last resort and alternative to Parliament is the prerogative of Parliament. Hon members have a historic responsibility to show that the Sixth Parliament is a people’s Parliament, embracing African values and African sanctions are not western prescripts, which in this case will be counterrevolutionary.
We would like to thank Judge Hlophe for his services to his country. AL JAMA-AH feels that each remedy is revolutionary fair and will contribute to nation building. In addition, the Common Law principle of sub judice has been completely emasculated by the entrails provisions of section 16 of Chapter Two of the Bill of Rights of the South African
Constitution. There are reports daily on South African television, newspapers and radio where comments and opinions are expressed about pending cases. The only difference is that our hon Judge Hlophe conveyed the sentiments concerning a pending case against the former President Zuma personally to two judges. He should not have done so.
Hon Chair, AL JAMA-AH, calls on hon Members of Parliament and President Ramaphosa not to implement the impeachment of Judge Hlophe. [Applause.] His 10 years showed that black judges can dispense justice and it is not the domain of whites only. The IFP confirmed that Judge Hlophe is a renowned judge. The hon Judge Hlophe served the judiciary for more than a decade [Inaudible.] Since the wrong for which he has been found guilty in 2008. Judge Hlophe should be shown compassion, his elderly and to harm his livelihood and well-deserved retirement benefit is out of place in our country with values like Ubuntu. Thank you very much. [Applause.]
Mr W HORN: House Chair, six of the constitutional principles agreed upon in the early 1990s and next to the interim Constitution, if there shall be a separation of powers between the legislature, executive and the judiciary with appropriate
checks and balances to ensure accountability, responsiveness, and openness. When certifying the 1996 Constitution, the Constitutional Court remarked as follows:
There is, however, no universal model of separation of powers in democratic systems of government, in which checks and balances result in the imposition of restraints by one branch of government upon another. There’s no separation that is absolute. The principle of separation of powers on the one hand, recognizes the functional independence of branches of government. But on the other hand, the principle of checks and balances focuses on the desirability of ensuring that the constitutional order as a totality prevents the branches of government from usurping powers from one another.
Now, House Chair, the duty and authority of this NA in terms of Section 177 of the Constitution to deal with the item under discussion, is exactly part of the checks and balances system in our constitutional arrangement. The President, as head of the Executive, will be duty bound to remove a judge from office if the Judicial Service Commission, JSC has found gross misconduct on the part of the judge and if the NA, with 2/3 of its members supporting such a resolution, calls on the
President to do so. The Constitution is very clear in this regard House Chair, and it does not require, as has been confirmed by a court, a fresh investigation on the part of the NA. So, what we must therefore understand is that whilst most of our responsibilities as the NA are to be perform ordinarily within the context of policy and politics, the constitutional obligation to consider the possible move, possible removal of judges is different.
The Constitution right has left ample opportunity for political considerations to determine the outcome of our work when we make laws and when we oversee the work of the Executive. But and this is in our view, instructive to us as the NA today, we are not performing legislative or oversight functions today. We are not simply debating an issue of national importance. This decision today is the exercise of public power, which demands of us to deal with this not based on our own political convictions or feelings, but in a manner that will uphold and defend the Constitution. A manner that will showcase obedience to the rule of law. The law, which demands that only those who are fit and proper, should be entrusted to serve as judges, and that, in the event of a judge being found guilty of gross misconduct, we carefully
consider whether such a judge remained fit and proper to retain that status.
In this the matter the JSC has found that gross misconduct and has agreed that the only appropriate sanction would be removal from office. This finding and the recommendation was of course, the product of a protracted process with which the JSC struggled to deal effectively and speedily. While it must be said to the JSC or the small JSC then, as part of our national conversation that the mere fact that it took 15 years to complete has seriously undermine the credibility of the JSC, and by extension, possibly even of the judiciary. It, on the other hand, of course, can never be said that the matter was rushed. More importantly, it cannot be argued that this report creates anything other than a constitutional obligation on us to support removal from office.
This is the only reasonable and rational decision available to this NA today.
Afrikaans:
Die besluit wat ons as die Nasionale Vergadering moet neem, stel ons voor bepaalde grondwetlike uitdagings. Sou ons
toelaat dat ons politieke agendas en ons politieke verskille bepaal hoe ons belsuit oor die moontlike verwydering uit die amp van regter President Hlophe, dan sal ons weereens onsself blootstel aan geregverdigde klagte dat ons versuim in die uitvoering van ons take, om getrou te bly aan ons land se Grondwet.
Die Regterlike Dienskommissie se feitebevinding en die gevolgtrekking dat die wangedrag van Regter President Hlophe so ernstig was dat die enigste gepaste straf is om hom uit die amp te verwyder, staan vas en is die produk van ’n uitgerekte proses, wat by tye selfs die onderwerp van hofaansoeke was.
Dis ’n harde realiteit waarby ons nie verby kan kyk nie. ’n Gebrek aan integriteit kan nie versoen word met die vereiste dat regters geskik en gepas moet wees vir die amp nie. Daar kan nie plek op die regbank wees vir enige regter wat ander lede van die regbank onbehoorlik probeer beïnvloed in die uitvoering van hul take nie.
Getrouheid aan ons ampseed as Lede van die Parlement laat ons dus met geen ander keuse as om die portefeuljekommitee se verslag en aanbeveling te ondersteun nie. Dankie. [Applous.]
Mr X NQOLA: House Chair, the Speaker of the National Assembly, the Deputy President of the Republic of South Africa, Ministers and Deputy Ministers present, members of the House and fellow South Africans, there is an old saying which says, the robe magnifies the conduct. It means that judges must be held to higher ethical standards if they are to keep the trust and confidence of the people they serve. Holding judges accountable for their conduct can preserve public confidence in the judiciary.
As has been alluded to, this process which is defined in the Constitution, is an exercise of accountability. It is about ensuring that the rule of law is respected by even those who wield power. It is about ensuring that people have faith in the judiciary. The judiciary cannot exist without the trust and confidence of the people. Judges must therefore be held accountable to legal and ethical standards.
The independence of the judiciary is a distinctive feature of a constitutional democracy and is an important feature of the doctrine of the separation of powers. The Constitution demands that the courts remain independent, subject only to the Constitution and the law. As the branch of government that
applies the law, it is important that the courts are able to apply it to the other branches of government too. This gives effect to the principle that no one is above the law, not even the most powerful figures in society. The terms of office of judges are defined and their security of tenure protected.
Judges may only be removed from office in specific circumstances.
IsiXhosa:
Ayingowonke-wonke.
English:
Section 177 of the Constitution clearly spells out that a judge may only be removed from office if the Judicial Service Commission, JSC, finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct. So, judges are protected, such that we are using a higher threshold of gross misconduct and not just misconduct. You require a two-thirds majority in the National Assembly for you to do that. [Interjections.] In addition to this ... House Chair, I am being disturbed on my left ... In addition to this
...
The HOUSE CHAIRPERSON (Mr C T Frolick): Order, hon members.
Mr X NQOLA: ... the National Assembly must pass a resolution calling for the removal of that judge with a supporting vote of at least two thirds of its members. After such a resolution is passed, the President must remove the judge, hon Nyhontso. It is not optional. The law instructs that the President must remove the judge.
In their wisdom ... [Interjections.]
The HOUSE CHAIRPERSON (Mr C T Frolick): Order, hon members.
Mr X NQOLA: I love you too, mam Khawula. The drafters of our Constitution added these provisions to ensure that judges are not easily or arbitrarily removed from office for reasons politically, frivolously and unrelated to judges’ fitness to hold office.
A fundamental aspect of judicial independence is impartiality, which is the idea that a judge should interpret and apply the law, with minds open to argument and free of bias. When hearing a matter, a judge should not have already decided the
outcome before he has ... all sides. This principle is placed under threat if judges take their own personal allegiances, whether they be political, religious, ethnic or arising from some other source, into account when adjudicating a matter.
The institutional protection for the courts’ independence is provided by section 165(3)and(4) which ensures that no person or organ of state may interfere in the functioning of the courts. Organs of state must assist and protect the courts to ensure their independence and impartiality.
The facts of the case of Judge President Hlophe have already been outlined by the chairperson and other members who debated before me. It is perhaps important to remind ourselves of the findings of the JSC. The JSC found that Judge Hlophe did not express abstract academic views about the law of privilege. He said that the Supreme Court of Appeal, SCA, got the law wrong and in the meeting with Justice Nkabinde there was no case against Mr Zuma. In that context, he urged them both to decide the case correctly. The JSC agreed with the tribunal that to decide the case correctly, where Judge President Hlophe’s view was that the SCA got the law wrong, could only mean overturning the SCA and thus finding in favour of Mr Zuma. It
found that, that was consistent with his admitted suggestion that Mr Zuma was being persecuted.
It further found that it also means that in saying sesithembele kinina [we are now counting on you], Judge President Hlophe conveyed his hope that the Constitutional Court, as the apex court, would correct the errors committed by the SCA. That is how Justice Jafta understood the phrase and, by the way, how a reasonable observer would have understood it. The JSC found that Judge President Hlophe’s conduct was in breach of the requisite objective standard. The JSC concluded that Judge President Hlophe’s conduct constituted an attempt to improperly influence the two judges concerned, to threaten and interfere with the independence, impartiality, dignity and effectiveness of the Constitutional Court and breached the principle that no outsider, be it government, pressure groups, individual or even another judge conducts his or her case and makes his or her decision. It found that Judge President Hlophe’s conduct fell short of the standard required of a judge and that he had committed gross misconduct.
On the question as to whether the National Assembly may reopen an inquiry, the SCA has already answered to this matter. The court clarified that it is the JSC which bears the responsibility of making a finding of gross misconduct. It further clarified that it is not the responsibility of the JSC to decide whether Judge President Hlophe should be removed from office as that role belongs to the National Assembly. The court went on to clarify that the National Assembly does not revisit the JSC’s finding of gross misconduct. It takes a decision.
At this juncture, the National Assembly is called upon to take a decision. The chairperson of the committee has demonstrated how the portfolio committee, as an extension of the National Assembly, applied itself to the JSC’s findings. Judge President Hlophe was invited to place extenuating circumstances ... that he considered relevant to the committee’s deliberations.
As to whether his removal from office is appropriate, responds to the already proven gross misconduct. Hlophe J P was granted two opportunities to make extensive return representations, mindful of course that it was not facilitating an inquiry
process. Regrettably, the arguments he raised were not convincing.
Before judicial officers begin to perform their functions, they take an oath or solemn affirmation of a judicial office that they shall be faithful to the Republic of South Africa, uphold and protect the Constitution, entrench human rights and administer justice to all persons alike without fear, favour or prejudice in accordance with the Constitution and the law.
Justice Hlophe was appointed as a judge to the Western Cape High Court in 1995 and later as a Judge President of the Western Cape Division of the High Court in 2000. Like other judicial officers, he took the judicial oath of office, swearing or solemnly affirming to uphold and protect the Constitution of the Republic of South Africa. Regrettably, the conduct of Judge President Hlophe fell below the standard required of someone in a position like his. Persons who assume the office of judge must work assiduously to manifest good character by demonstrating integrity in the detail of their life and their work. The ANC supports this report.
Debate concluded.
Question put: That the House resolves to call for the removal of Judge President M J Hlophe in terms of section 177(1) of the Constitution of the Republic from office.
Division demanded.
The House divided.
The HOUSE CHAIRPERSON (Mr C T Frolick): Hon members, in terms of section 177(1) of the Constitution of the Republic, a judge may be removed from office only if the National Assembly calls for the judge to be removed by a supporting vote of at least two thirds of the members of the Assembly. Although a division has been demanded, we are reminded that members are required to record their vote when the opportunity is given to them. [Interjections.] Order, hon member! Hon member, do you want to leave the sitting? [Interjections.] We are busy ... Then you must abide by the rules of the sitting. Order!
Hon members, let me also bring to your attention that when voting on this question and the next question on the Order Paper, the members who are suspended from parliamentary activities will not be called upon during the roll call of the
vote. These members are the hon Malema, the hon Shivambu, the hon Dlamini, the hon Ndlozi, the hon Pambo, the hon Tambo and the hon Peters. The bells will be rung for 10 minutes.
BUSINESS RESUMES AT 16:48.
The HOUSE CHAIRPERSON (Mr C T Frolick): Order, hon members. We will now proceed. Hon members, the rules of the National Assembly provide for different procedures for members to cast their votes. These include voting by electronic means or a manual voting procedure by way of a Whip or voice. The rules also stipulate that the Speaker must predetermine the voting procedure. For this division, the hon Speaker has determined that the manual voting system will be used, whereby each member will be called upon and requested to voice his or her vote. In terms of the rules, all members present when the question is put, with the doors barred, must vote or record an abstention. This rule does not apply to a Minister or a Deputy Minister who is not a member of the House. Political parties provided a list of members who will be called first when it is their turn or their party’s turn to vote. After that party’s list has been called, the remaining members of the party will be called alphabetically. The secretary will call each member
from the membership list, starting with those from the majority party. The members will be called by their surname followed by their initials. In order to facilitate the process, I appeal to hon members to indicate their vote only, without a preamble or statement and without delay. Members must thus simply indicate yes, no or abstain. This will assist the Table Staff and the tellers in ensuring that your vote is captured correctly. In the event that a member’s name has been called and they are present but for whatever reason does not indicate their vote, an opportunity will be provided for such members to raise their hands after the last member on the list is called, at which point they will be recognised to cast their vote.
The question before the House is that the National Assembly resolves to call for the removal of Judge President M J Hlophe in terms of section 177(1) of the Constitution from office.
Those in favour of the call for the removal of Judge President M J Hlophe from office in terms of section 177(1) of the Constitution will vote yes and those against the call for the removal of Judge President M J Hlophe from office will vote no. Those who want to abstain will record their vote as such. Voting will now commence. The doors of the Chamber will remain
locked until the voting procedure is completed. The secretary will now proceed to call members.
[VOTING - TAKE IN FROM MINUTES]
Question agreed to.
Recommendation calling for removal of Judge President M J Hlophe from office in terms of section 177(1) of the Constitution of the Republic accordingly agreed to.
RECOMMENDATION FOR REMOVAL OF JUDGE N J MOTATA FROM OFFICE IN TERMS OF SECTION 177 OF THE CONSTITUTION
(Consideration of Report of Portfolio Committee on Justice and Correctional Services)
Mr G MAGWANISHE: House Chairperson, His Excellency the Deputy President, hon Ministers and Deputy Ministers, hon members, as we were building a democratic South Africa, we deliberately opted for a constitutional democracy, understanding the injustices, sufferings and brutality caused by the colonial and apartheid system. We chose a Constitution which is founded
on human dignity, the achievement of equality and the advancement of human rights and freedoms. We chose a Constitution which is founded on nonracialism and nonsexism, on the supremacy of the Constitution, rule of law, multiparty system of democratic government to ensure accountability and openness.
Our Constitution creates a law-governed society which will be inimical to arbitrary rule. The Constitution we adopted clearly states that and I quote: We, the people of South Africa recognise the injustices of our past ... and believe that South Africa belongs to all who live in it, united in our diversity. We adopted the Constitution to build a united and democratic South Africa. When taking office, judges swear or solemnly affirm to be faithful to the Republic of South Africa to uphold and protect the Constitution and human rights entrenched in it and to administer justice to all persons alike without fear, favour or prejudice in accordance with the Constitution and the law. When a person takes an oath or solemn affirmation, he or she does so on their word of honour. It is binding on their conscience.
In the early hours of 6 January 2007, Justice Nkola Motata, whilst driving, reversed into the boundary walls of a residential property. In the course of those events, Motata J became involved in a verbal altercation with the owner of the property. During the confrontation, Motata J reportedly used racial slurs, profanities, and language of the regulatory nature, all of which was recorded. When two female officers of the Johannesburg metropolitan police department arrived at the scene, Motata J refused to co-operate with them. When one of the officers, a woman, informed him that she would arrest him, he responded that he would not be arrested by a female officer. Eventually he was arrested. Motata J was subsequently charged with two counts of criminal misconduct, that of contravening section 65, subsection 1(a) of the National Road Traffic Act of 1996, by driving a motor vehicle under the influence of alcohol, and that of contravening section 67, subsection 1(a) of the SA Police Services Act of 1995 of defeating and of abstracting the ends of justice by resisting arrest.
The trial court was satisfied that given Judge Motata’s proven speech, physical and mental impairment, and his general conduct shortly after the collision, the only reasonable
inference was that Motata J was indeed under the influence of intoxicating liquor at the time that he drove his vehicle into the wall. Judge Motata appeal against his conviction to the full bench of the Gauteng division of the High Court. The appeal failed. On 29 November 2010, the Appeal Court confirmed the conviction. The Appeal Court found it extremely improbable that any High Court judge in his or her sober senses would use the kind of foul language used by the appellant in the presence of unknown members of the public and police officers, some of whom being women. Judge Motata instituted legal proceedings on technical grounds to challenge aspects of the Judicial Service Commission Act. This challenge, too, was ultimately unsuccessful.
Section 177 of the Constitution provides for the removal of a judge, setting out a three-stage process as follows. A judge may be removed from office only if the Judicial Service Commission, JSC, finds that the judge suffers from incapacity, is grossly incompetent or is guilty of gross misconduct. The National Assembly calls for that judge to be removed by a resolution adopted with the supporting vote of at least two thirds of its members. The President must remove the judge from office upon adoption of a resolution, calling for that
judge to be removed. The Judicial Conduct Tribunal recommended to the JSC in 2018 that Judge Motata be removed from office for gross misconduct. However, the JSC refused to accept the recommendations, deciding Motata J’s actions at the time of the crash amounted to misconduct rather than gross misconduct, and did not warrant his removal from the judiciary. Instead, it fined him R1,1 million, which he paid to SA Judicial Education Institute, in compliance with the judgment.
In 2010, an organisation called Freedom Under Law began proceedings before the Johannesburg High Court to have the JSC decision reviewed and set aside and to substitute that decision with a finding that Motata J was guilty of gross misconduct. The High Court dismissed the application in 2022, prompting Freedom Under Law to apply for leave to appeal to the Supreme Court of Appeal, SCA. The Supreme Court of Appeal rejected the JSC’s finding that Judge Motata was not guilty of gross misconduct and upheld the Freedom Under Law. The matter was remitted to the JSC, which made the finding of gross misconduct. The matter was referred to the Portfolio Committee for consideration and report on 25 August 2020.
Regarding the procedure to be followed, the committee noted the clarity provided by the proper judgment on the specific roles assigned to the JSC and the National Assembly in giving effect to section 177 of the Constitution. The committee developed steps to allow for sufficient engagement with the affected judge and deliberations to empower its members to make an informed political decision about the limited determination as a consequence of the JSC findings. A court clarified that the National Assembly rule is not to rehear the matter, as that is a question of merit already settled at the JSC finding stage. In making its determination, the National Assembly makes a political decision.
The committee wrote to Motata J in a letter dated 4 October 2023, inviting him to place any extenuating circumstances that he wished the committee to consider when it deliberates on the matter. The committee had agreed that the representation should be in writing only and should reach it by 27 October 2023 and reply. The committee received a letter from Motata J, dated 12 October 2023, requesting that he be given until 30 November 2023 to submit his written representation to the committee.
The committee agreed to give Motata J until 15 November 2023 to do so. The committee received further correspondence from Motata J dated 10 November 2023, in which he raised the following arguments. The JSC did not make any decision which could be referred in terms of the Judicial Service Commission Act to the National Assembly for further processing for purposes of Section 177 of the Constitution.
He argued that absent of a clear finding of the JSC, the National Assembly, and by implication the committee, lacks jurisdiction to entertain the matter. And if the National Assembly nevertheless entertained the matter, such steps would amount to double jeopardy as Motata J had already paid the fine to such in compliance with the prejudgment misconduct finding of the JSC. The committee then wrote to the Chief Justice requesting that the JSC clarify the issues raised by Motata J, namely whether it indeed regards the SCA ruling of gross misconduct as having been made the decision of the JSC, which was then referred for consideration to the National Assembly.
The Chief Justice replied in a letter to the Speaker of the National Assembly in which he attached the resolutions of the
meeting of the JSC sitting without members of the National Assembly dated 17 November 2023. The small JSC confirmed that it regards the order of the Supreme Court of Appeal as effectively setting aside the JSC’s previous misconduct finding against Judge Motata and replacing it with a finding of gross misconduct. It is this finding of gross misconduct against Judge Motata that has been referred to the National Assembly.
Regarding the argument of double jeopardy, the committee held a view that it was an issue to be resolved between the JSC and Motata J and did not prevent it from proceeding with the deliberations. Racism and sexism are not something to be taken lightly, wherever they flow from. They are a reminder of our painful past and an antithesis of our very Constitution, which judges make an oath to obey. The removal of a judge is not an opportunity for jubilation, but it gives us an opportunity to reflect as a nation. It is about accountability, and ensuring adherence to judges, to their oath of office. This process is about instilling faith in the judiciary. The public must have trust in those who dispense justice to them.
Article 5 4 of the South African judicial conduct articulates that judges must always - not only in the discharge of official duties - act honourably in a manner befitting judicial office. Public confidence in and respect for the judiciary are essential to an effective judicial system, and ultimately to democracy, founded on the rule of law. The court described Judge Motata’s conduct as egregious, and that his behaviour at the scene of the incident was characterised by racism, sexism and vulgarity.
It went on to say the public watched him conduct a dishonest defence during his trial and on appeal. They watched him dishonestly accused Mr Baird of using the “k-word”, only to thereafter withdraw the accusation. They watch him lie under oath to the tribunal about his level of intoxication as the videos of him slurring his words and stumbling went viral. It held that his conduct is inimical to his office and that as long as he is entitled to be called Judge Motata, the judiciary continued to be staying in the eyes of the public.
The Portfolio Committee on Justice and Correctional Services, having considered the referral by the Chief Justice of the Republic of South Africa of findings of gross misconduct
against Judge Motata in terms of section 20, subsection 4 of the Judicial Services Commission Act of 1994, read with Section 177, subsection 1 of the Constitution of the Republic of South Africa, recommends that the National Assembly resolve to call for the removal of Judge Nkola Motata from office.
Adv G BREYTENBACH: Hon House Chair, hon members, the impeachment of Judge Nkola Motata stands as a significant beacon in the history of South Africans judiciary, shedding light on the imperative of maintaining judicial integrity and accountability. This very important debate has broaden far reaching importance and implications for our legal system. No sitting judge has ever been impeached in South Africa prior to today. The fact that we are having this debate is a testament to our Constitution, and the fact that we as a democracy are mature enough to be having this debate. The importance of judicial integrity cannot be overstated.
By way of background, Judge Motata, a respected figure within the South African judiciary, served as a judge in the Gauteng Division of the High Court. He enjoyed the respect of his peers and of the legal profession. The allegations against him stem from an incident in 2007 when he was involved in a car
accident while blind drunk. Who can forget the photographs of the judge slumped drunkenly over his steering wheel, halfway through the wall of a private individual? Subsequent recordings of racially charged and sexist remarks made by Motata at the scene further exacerbated the controversy. These allegations raised serious questions about his fitness to hold judicial office and caused doubt on his ability to uphold the principles of impartiality and fairness.
The legal framework surrounding impeachment proceedings against judges in South Africa is governed by section 177 of the Constitution, along with the Judicial Services Commission Act, which outlines the process for investigating complaints of judicial misconduct. The Act is designed to uphold the integrity of the judiciary and ensure accountability amongst judicial officers, providing a mechanism for addressing allegations of misconduct in a fair and transparent manner.
The impeachment process faces its fair share of challenges and controversies, including legal technicalities, procedural disputes and public scrutiny. It requires the intervention of civil society and freedom under law under the stewardship of Justice Johann Kriegler, to get us here today. The handling of
the case raised questions about the effectiveness of the judicial disciplinary mechanisms and the broader issues of judicial accountability in South Africa. Moreover, there were concerns about the impact of the proceedings of public trust and confidence in the judiciary.
The impeachment of Judge Motata carries significant implications for judicial integrity in South Africa. It underscores the importance of upholding the highest ethical standards amongst judicial officers and holding them accountable for their actions. It reaffirms the principle that judges are not above the law and must be subject to scrutiny and discipline when their conduct falls short of the expected standards. Furthermore, it highlights a critical role of public trust and confidence in the legitimacy of the judiciary.
Sadly, Judge Motata let himself and all of us down, rather badly. Instead of conducting himself with dignity, honesty and humility, all trades that are necessary to make a judge worthy of its higher office, he chose the path of lies and obfuscation, and in the process did great damage to the image
and integrity of the judiciary as a whole. By doing so, he destroyed his own reputation and his legacy.
The time it took to deal with this matter placed the Judicial Conduct Committee, JCC and Justice Administrative Commission, JAC into distribute. All in all, the entire process has reached an enormous amount of damage on the digital system.
The process, such as it was, leads to lessons learned for the legal community and society at large. It underscores the need for robust mechanisms to address allegations of judicial misconduct promptly and effectively. It also fixes the attention on the appointment process, underscoring the qualities that are required of respective judges.
In conclusion, the impeachment of Judge Motata reflects South Africa’s commitment to upholding the rule of law and preserving the integrity of its judiciary. While the process was challenging and contentious, it ultimately reaffirms the principles of accountability, transparency and judicial independence. Moving forward, it is essential to learn from this experience and strengthen the mechanisms for safeguarding judicial integrity in South Africa, ensuring that judges
uphold the highest ethical standards and remain accountable to the citizens that they serve.
Judge Motata failed to live up to and uphold these requisites standards, and inverting to impeach him, we as Parliament will be underscoring the essential need for higher ethical standards required from those who aspire to sit in judgement of others. We support the recommendation of the committee. [Applause.]
Adv B J MKHWEBANE: House Chairperson, we wish to state that section 177 of the Constitution provides, inter alia, that a judge may be removed from office only if the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct, and the National Assembly is called to remove that judge by a resolution with the support of at least two thirds of its members.
Section 20 subsection(3) of the Judicial Service Commission Act requires the commission to make a finding as to whether or not the respondent is guilty of gross misconduct. Section 20 subsection(4) of the Judicial Appointments Commission Act
provides if in similar terms to section 177 of the Constitution, that if the commission finds that the respondent is guilty of gross misconduct, the commission must submit that finding, together with the reasons thereof, and a copy of the report, including any relevant materials of the tribunal to the Speaker of the National Assembly.
What is clear from the provisions referred to above is that it is the commission and not the court or any other forum, which is constitutionally and statutorily authorised to make a finding that a judge is guilty of gross misconduct, and that has the power to refer its finding to the National Assembly for appropriate action in terms of the Constitution and the Act. As stated here under, and expressly supported by the letter from the Chief Justice, the Judicial Service Commission, never made any finding of gross misconduct against Judge Motata.
Furthermore, as also stated in the letter of the Chief Justice, the Supreme Court of Appeal did not specifically set aside the finding made by the Judicial Service Commission in its sitting when it found that Judge Motata was not guilty of gross misconduct, but guilty of misconduct. Moreover, the
Chief Justice in his letter emphasised that the Justice Administrative Commission did not itself make such a finding. This makes it abundantly clear that to date, there is no finding of gross misconduct by the Judicial Service Commission as required by section 20 subsection(3) of the Judicial Service Commission Act, read with Section 177(1)(a) of the Constitution.
Consequently, there is no jurisdictional basis for the present debate and referral. In the circumstances, the National Assembly absent a finding made by the Judicial Service Commission as required by both the Constitution and the Judicial Service Commission Act, lacks the jurisdiction or competence to entertain this matter.
Taking this into account, the National Assembly is now endorsing a deeply unlawful and unconstitutional finding against Motata. Just like Judge Hlophe, Judge Motata was subjected to two processes, simply to find him guilty and to impeach him. He was fined an amount of R1 152 650 40 million which he was ordered to pay to the South African Judicial Education Institute, and he paid that amount.
Hon members, we must all refuse to be used as pawns by racist institutions like Freedom Under Law, whose sole purpose is to
... [Inaudible.] ... black professionals. Judge Motata is already retired. Indeed, as the EFF, we don’t condone racism, we don’t condone women abuse and sexism, definitely. But can we then let Judge Motata in his misjudgement, you know, in that particular process, be left to enjoy his retirement at home? I mean he is an old age person now. Let him retire at home. Can we leave him alone? The EFF doesn’t support this removal. Thank you. [Applause.]
Mr N SINGH: Honourable Chairperson and colleagues, indeed a very sad day again for South Africa and for this Parliament when we have to consider another judge for impeachment. I think it was hard enough to consider the other matter, although I noted that there was a 75% majority of this House when the votes were counted. Having said that, hon Chairperson, as I said before, the higher the office, the more the responsibility. I think it’s hon President who stood here the other day and said the higher the office and the wind catches you more the trees.
So, it is very sad that ... no, it has nothing to do with Phala Phala and debate that on another day. It is very sad as well that this matter started in 2007 and it’s 17 years later when it has been considered by us. I think as much as we say to judges and others that there needs to be swift justice, we ourselves as Parliament and in the whole legal process, we need to ensure that there is swift justice in a matter like this and other matters.
I think it’s common cause that the rantings and ravings of the hon judge is really not becoming of a person who holds such high office, and to have allegedly accosted female members of the police makes the matter even worse. Since I have this platform, hon Chairperson, I think whilst we look at interference within the judiciary by judicial officers, we also have to make sure that there is no political interference with the judiciary.
Of late we’ve been reading some reports, whether true or not, of certain political interference in the work of the judiciary. I this I think this is something that we need to look at seriously as Parliament as well. What we are doing
today I think is sending a strong signal to judicial officers that their ethics have to be above board.
I don’t see hon Lamola here because I would have told him this, but I think the Deputy Minister of Justice is here. I read the other day, and I can't remember the court, where there were allegations of corruption between the judicial officer, the prosecutor, the police and everybody else somewhere – I don’t know if it’s Palm Ridge or elsewhere – and I hope that you would investigate that matter expeditiously, because all these things happen within the judiciary undermine the judiciary and undermine our faith in the judiciary. We will support this report. Thank you, House Chair.
Dr C P MULDER: Hon House Chairperson, we all know that after the question of state capture, the credibility of Parliament also was questioned because of our role with regards to oversight and accountability. However, lately, end of last year and now at the beginning of this year, I think Parliament is regaining its stature because of what we have been doing in terms of what is expected of Parliament. I think it is a good thing and I think it will send a good signal to the public and
the electorate out there as we are coming into an election year.
Last year we had to deal with the impeachment of the Public Protector and today we are dealing with the impeachment of two judges. Now, with all due respect, I think colleagues in the House this afternoon, had the opportunity to see what we, at the ad-hoc committee, had to endure during the hearings of the former Public Protector. I think you get some kind of idea of what we had to endure for more than a year.
We listen to the hon Mkhwebane from the EFF, and not a word about the merits, not a word about the facts in this case, trying to pick up small little technical legal points to try and put her position ... [Interjections.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Order, hon members! Order, hon members. Hon members, give him a chance to complete. Hon Dr Mulder, could you please take your seat, there is a point of order? What’s your point of order, hon member?
Ms E N NTLANGWINI: House Chair, we are not going to be told by some racist on how to speak and what to speak in our speeches. We will speak however we want to speak. Those are our minutes. We are not going to be told by him.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Ntlangwini, that is not a point of order, and you have made a very desperation remark. Hon Ntlangwini, you have made a very uncomfortable remark that Dr Mulder is a racist. That is totally unacceptable, and I would like you to withdraw that. please withdraw that comment, please.
Ms E N NTLANGWINI: Can you tell me which comment it is, House Chair?
The HOUSE CHAIRPERSON (Mr M L D Ntombela): That hon Mulder is racist. It is not allowed.
Ms E N NTLANGWINI: I said we are not going to be told by a racist, I didn’t say he is the racist.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): He is the one on the platform. Hon Ntlangwini, can you please withdraw what you
have said? [Interjections.] Hon Ntlangwini? Hon Ntlangwini, I am requesting you to stand up and withdraw what you have said. [Interjections.] Hon Ntlangwini, for your benefit, can I read Rule 84 for you? No member may use offensive, abusive, insulting, disrespectful, unbecoming or unparliamentary words or language nor offensive or unbecoming or threatening gestures. You have just called Dr Mulder a racist, and I am saying that is unparliamentary. Could you please withdraw that?
Hon Ntlangwini, you seem not to be responding. If you do that you leave me with no option but to request for you to be removed from the House. You will have to leave the House. If you are not going to do what I am asking you to do, I will request you to leave the House.
Hon Ntlangwini, could you please leave the House?
Serjeant-at-arms, could you please help hon Ntlangwini out of the House? Could you please assist her to leave the House? [Interjections.]
Hon Mente, I see your hand is up, what is your point of order?
Ms N V MENTE: Chair, if you are going to run the House like that you are going to be wrong. You seem to hear what white people are saying, but you don’t hear the white people are saying about black people. Mkhwebane was just patronised by that white man standing there. You did not say anything, but when we talk about him you hear things. We are going to have a problem and we are not going to be run like that and be patronised by white people - not in this South Africa, not in this House. You can continue to impeach black people, even those that are on retirement because of your Stellenbosch instruction – we don’t care – but we are not going to be told by white people how to speak. You can be told; not us.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Mente ... hon Mente ... hon Mente, your comments are totally not acceptable. Please don’t do that again. Just allow the hon member to continue. [Interjections.] Hon Mulder, you still have two minutes and 43 seconds to continue. [Interjections.] Order, hon members!
Hon Mulder, I see a hand at the back there. What is your point of order, hon member?
Ms N MHLONGO: Hon House Chair, I just want to confirm something with you; you must confirm it with us. The hon member on the platform is the son of a former Minister during apartheid regime ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon member, that is not a point of order ... [Interjections.]
Ms N MHLONGO: ... he was a Member of Parliament under apartheid regime ... [Interjections.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Please, take your seat ... [Interjections.]
Ms N MHLONGO: ... a son of a racist is a racist, a son of a snake is snake, a dog gives birth to dogs! Therefore, he is the son of an apartheid racist. He was an MP himself during 1988 during apartheid. What does that make him to be? Tell us.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon member, your desperation remarks are not assisting. You are totally not assisting.
Hon Mhlongo has just defied the ruling that I made. I made a ruling on this matter, hon Mhlongo stands up to shout and continue doing what she was doing. [Interjections.] Hon Mhlongo, I will request you to leave the House because your intention was clearly to defy ... Please, leave the House. [Interjections.] Hon Mhlongo, I request you to leave the House. Rule 17 – you are ordered to leave the House for having defied ... I made the ruling, and you did what you did.
Please, leave the House. [Interjections.]
Serjeant-at-arms, please help her to leave the House. I will repeat, I have made a ruling on this matter; I am not going to make a ruling again. I am done with it, and I am not going to allow any hand. Hon Mkhaliphi, please put your hand down, I am not going to entertain anything on this. You can continue, Dr Mulder.
Dr C P MULDER: Thank you, Chairperson. The idea in Parliament is that you are supposed to debate. That is what Parliament is about. So, if somebody makes a point, you are supposed to be entitled to interact and to debate with regard to the actions. If you don’t like what I am saying, that’s not my problem, I can’t help you. But the move that you have made now from the
EFF was not a very wise move. In the last vote, you only had
27 votes. Now you are only going to have 25 votes. You are moving backwards. With all due respect ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Mulder, please address ... Hon Mulder, can I address you? Please focus on your speech, and do not address those members.
Dr C P MULDER: I will not address those members, thank you, sir.
The fact of the matter is the unfortunate situation in this whole process was - I think it is good for Parliament - but the unfortunate situation was that these matters were dragged out for so very, very long. Just look at the specific issue that we have at the moment. For almost 10 years, Judge Motata was not able to work, he was on leave, but he received his benefits. He has been on pension now for more than seven years. A cost for the taxpayers unfortunately, because this whole matter was dragged out in such a way. I think that is unfortunate and we should learn from it. We should understand that that is not the way that these things should be dealt with.
However, I think the most important thing is that a clear message was sent: Nobody is above the law, Parliament is regaining its position in terms of playing the role as the legislative arm of the state, that the authority of Parliament should be respected and hopefully when we go into the election the electorate will also deal with members who should not be in Parliament. Thank you very much.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Thank you very much. Hon members, may I have your attention, please? May I have your attention, please? [Interjections.] Hon Mente, may I have your attention, please?
Hon members, I would like to read Rule 10 to you. A member who wilfully 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 Powers and Privileges Act of 2004.
So, hon members, I am not going to tolerate it. I am not going to accept the chaos that is ensuing here. What is your point of order, hon Mente?
Ms N V MENTE: House Chair, your Table Staff seem to be sleeping. The first thing you go to is saying that the member must leave the House without asking the member to withdraw.
Had you done that, the member would have explained to you that she had a question that a beneficiary of apartheid who was a racist is he not also a racist? Thay was the question to you. Do not evade the question and chase people out. Follow your own Rules.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Mente, please, I have made a ruling on that. if you are not happy ...
Ms N V MENTE: No, you cannot not follow your own Rules! You must follow your own Rules ... [Interjections.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): If you are not happy with the rulings that I have made, you know what to do
... [Interjections.]
Ms N V MENTE: ... follow your own Rules ... [Interjections.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): ... could you please take your seat ... [Interjections.]
Ms N V MENTE: The ANC Caucus committee that I must refer you to ...
... hhayi suka! (Translation of isiZulu sentence follows.)
[...oh, hell no!]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Mente, could you please withdraw that which you have just said now.
Withdraw what you have just said now. [Interjections.] The manner in which you said it, could you please withdraw it.
Hon Mente, could you withdraw your statement. Hon Mente, your intention apparently is to defy the chair. That is exactly what you are trying to do. Could you please behave.
Ms H O MKHALIPHI: Chairperson, my hand is up.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): I will ... [Interjections.]
Ms H O MKHALIPHI: Chairperson, my hand is up!
Asikuzwa ke manje. (Translation of isiZulu sentence follows.)
[We don’t hear you now.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): I am still talking to hon Mente. Could you please put your hand down?
Ms H O MKHALIPHI: I want to call an order ... [Interjections.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): No, just put your hand down ...
Ms H O MKHALIPHI: ... but I want to assist you ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): I don’t need your
assistance ... [Interjections.]
Ms H O MKHALIPHI: ... but you are sleeping in your job ... [Interjections.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): I don’t need your
assistance ... [Interjections.]
Hon Mente, clearly, the manner in which you are speaking is intended to undermine me, and I am not going to accept it ... [Interjections.]
Ms N V MENTE: What? Oh, you feel undermined?
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Yes, you are undermining the chairperson. You are undermining the chairperson – that is what you are doing. It is for that reason I am asking you to withdraw what you said.
Ms N V MENTE: What?
The HOUSE CHAIRPERSON (Mr M L D Ntombela): You can’t use words like “hhayi suka”. You can’t. you cannot be doing that, hon Mente, I want you to withdraw that.
If you do not want to withdraw, hon Mente, you are also leaving me with no option but to request you to leave the House. So, I want you to withdraw that.
Ms N V MENTE: Noo!
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Then if you refuse, leave the House.
Ms N V MENTE: You can be left with your caucus ...
Ms H O MKHALIPHI: Can I talk now?
The HOUSE CHAIRPERSON (Mr M L D Ntombela): I haven’t recognised you ... [Interjections.]
Ms H O MKHALIPHI: Recognise me then ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): I haven’t recognised you ...
Ms H O MKHALIPHI: Then recognise me ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Put your hand down
... [Interjections.]
Ms H O MKHALIPHI: Never!
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Dlakude?
Ms H O MKHALIPHI: But my hand has been up before hon Dlakude.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Dlakude ...
Ms H O MKHALIPHI: But this is unfair, Chair. Chairperson, this is unfair.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Dlakude, I will recognise you, let me just deal with this. Hon Mkhaliphi?
Nk H O MKHALIPHI: Uyabona ke Sihlalo ... (Translation of isiZulu sentence follows.)
[Ms H O MKHALIPHI: You see, hon Chairperson ...]
... hon Mente spoke here, she asked and explained to you. Now you are saying that she must leave the House. You have a duty to explain to members what the reason is for her to leave the House. If you are failing to be here as a chairperson, just tell us and we can all leave the House. On which Rule are you chasing Mente away? Can you quote the Rule that says she is prohibited to say “hhayi suka”? Which Rule? Just quote the Rule? Can we have the Rule, because you cannot chair the House
with commonsense. Use the Rules of Parliament. Which Rule does
not allow a member to say “hhayi suka”? just read me the Rule.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Mkhaliphi, I have made a ruling, and I am going to request you not to undermine the authority of the chairperson ... [Interjections.]
Ms H O MKHALIPHI: But I am seeking clarity in terms of the Rules. You chased a member of this House on the basis that she said “hhayi suka”. I am saying to you that it is you as the chairperson who must tell us which Rule prohibits a Member of Parliament from saying “hhayi suka”. That is very simple.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Mkhaliphi, I am not prepared to converse with you. Could you please take your seat?
Ms H O MKHALIPHI: Because you hate EFF with passion, and you are failing to understand that after May you are not coming back here ...
... wena! Awubuyi! (Translation of isiZulu sentence follows.)
[...You! you’re not coming back here!]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Mkhaliphi ... Hon members, put your hands down, please. Put your hands down. Hon Mkhaliphi ... [Interjections.]
Ehe! Awubuyi. Njengegama lakho uwumadala ... (Translation of isiZulu sentence follows.)
[Indeed! You’re not coming back here. You’re old like your
name ...]
... and you are very old to chair this House. That is why you can’t even read the Rule that says a member can’t say “hhayi suka” ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Mkhaliphi, can you please leave the House?
Ms H O MKHALIPHI: Thank you very much ... [Interjections.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): I am removing you. Get out of the House.
Ms H O MKHALIPHI: ... all of us are going to leave because we
can’t be here in this mediocre as the chairperson.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Leave the House. Hon Mkhaliphi, leave the House. Hon members, shall we continue? Just put your hands down. Hon Dlakude?
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Hon House
Chairperson, I stand on a point of procedure. No member is allowed to have a microphone before they are recognised. That is one. The matter we are dealing with right now is the debate on the issue of Judge Motata. Can we please proceed!
Hon House Chairperson, can you please do not engage with any member! Let us focus what is before us as the members of the National Assembly. I thank you.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon member, thank you very much. I am sure that is very clear.
Hon members shall we continue. We shall now call on the member from the ACDP, the hon Swart.
Mr S N SWART: Hon House Chairperson, whilst the highest standards are expected of a judge, failure to meet those standards would not of itself be enough to justify the removal of a judge. So important is the judicial independence that the removal of a judge can only be justified when the shortcomings of the judge are so serious as to destroy confidence in the judge’s ability to properly perform all the judicial functions.
The ACDP believes this is a very high bar that is set and that this bar has been attained in this case. And that particularly when one considers what the Supreme Court of Appeal said. It stated public confidence in respect of the judiciary are essential to an effective judicial system and ultimately to democracy and finding on the rule of law. A fair minded and dispassionate observer is bound to conclude that Judge Motata cannot properly discharge his functions.
Now the hon Magwanishe read at length of a conduct that was committed on that night. That conduct was found and set out in this judgment. The judge says the conduct that I have been at pains to describe is of such a gravity as to warrant a finding that Judge Motata be removed from office. There is no
alternative measure to remove all that would be sufficient to restore public confidence in the judiciary. And I think that is very significant. It relates to the integrity of the judiciary and what we all witnessed that night and it is a sad fact that it has taken so long to reach this point. So, the ACDP agrees with the Supreme Court of Appeal, SCA, finding and agrees with the deliberations that took place at length in the portfolio committee and agrees and supports this report.
However, what is also very significant is that we as Parliament need to bear in mind is that both the majority of the report and the minority of the report had quite a lot to say about the conduct of the Judicial Service Commission, JSC, as well in this whole matter. For example, the minority judgment in the SCA said it was disconcerting to witness a respected body like the JSC comprised of a judges and legal practitioners from both the bar and the side bar – and I am a member of the side bar as an attorney and law professors being found wanting in procedural matters of their own institution. That is the small JSC again that Members of Parliament are not involved in there. And I think that this is a matter for us just to bear in mind that there are and that the comments were made earlier as well. So, these are issues that we should look
at. I trust the Judicial Service Commission will also look at this judgment and improve on its mechanism. The ACDP supports this report. I thank you.
Mr N L S KWANKWA: Hon House Chairperson, a difficult and very complex is the matter of Judge Motata is given the fact that there were various decisions. Misconduct, gross misconduct ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Kwankwa.
Mr N L S KWANKWA: Yes.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Kwankwa, could you please take a seat. There is a point of order. However, I need to mention it that I have made a ruling on all the chaos that took place here. I am not going to entertain anything again with regard to that. I am definitely certain on that. It should be something totally different from that.
Hon member, what is your point of order? And the ...
Mr V GERICKE: Hon House Chairperson, I rise on a point of order.
My point of order is: To understand the Rules of this House and also, you’re ruling.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon member, that is not a point of order! Please take your seat!
Mr V GERICKE: It is important for us to understand your rulings!
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Could you please take your seat!
Mr V GERICKE: It is also important for the public to understand your rulings!
Are you making a ruling on a perception that somebody is defying your authority! Because that is exactly what you did in the case of the hon Mente!
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon member, please stop what you are doing!
Mr V GERICKE: Is it a perception? No, I cannot stop! We need to have clarity on this!
You made a ruling based on a perception that somebody is defying your authority, and it cannot be right! I want you to answer me on this and I approach you respectfully!
We cannot be intimidated by the masses of the ANC! You had your chance for 30 years! You have messed that up!
The HOUSE CHAIRPERSON (Mr M L D Ntombela): The hon Virgill, I will go back to Rule 70 again. I will go back to Rule 70 again and I quote:
If the presiding officer of the opinion that a member is deliberately contravening a provision of these Rules, or that a member is in contempt of or is disregarding the authority of the Chair or that a member’s conduct is grossly disorderly, he or she may order the member to withdraw immediately from the Chamber.
That is what you are doing, and I am asking you what to do.
Mr Virgill, please leave the House. [Applause.]
The hon Kwankwa, you may continue.
Mr N L S KWANKWA: Hon House Chairperson, well I have even forgotten what I wanted to say. I am kidding.
Hon House Chairperson, we are saying yes, we admit that the matter surrounding Judge Motata is a bit complex in a sense that firstly, it was misconduct and later on it was gross misconduct but that does not take away from the gravity and the seriousness of his offence. For us the decision we took earlier including this one now, is about restoring public confidence in the judiciary. If we impeached Judge Hlophe earlier to do that and there are recommendations and processes that have been followed to try and ventilate this issue promptly, I now decide to call them legal Ping-Pongs because they take 15, 20, 30 years. They made for an interesting reading, but the challenge is that we are not then in a position to resolve matters speedily so that even those who deserve to get justice in the end.
My understanding is that we have judges for life. Don’t we? So, they need to uphold those ethical standards for the entire period and for as long as they are paid by the taxpayers.
Whether retired or in office to perform functions for the state. So, if you happen to have retired it is a pity and unfortunate, but now we have to sanction you because for us you are a judge for life and not a judge for that particular period when you are in office. The UDM supports the recommendation to remove Judge Motata. Thank you.
Ms N H MASEKO-JELE: Thank you, Chairperson, Chief of the Majority Party, ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Jele, could you please take a seat? There’s a point of order from the hon Manyi. ... [Interjections.] I have no tattoo. I have no tattoo, hon Zulu. Hon Manyi, I have noted you.
Mr M MANYI: Thank you, Chair, I’m not rising on the point of order. This is actually the point. I’m rising on the point of privilege. Chair, the point I want to make is this that when you've made a ruling and people continue ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Manyi.
Mr M MANYI: Can I just make my point here first.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Manyi.
Mr M MANYI: Can I just make my point. When you’ve made a ruling, Chair and people keep raising their hands, ... [Interjections.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Manyi, let me warn you.
Mr M MANYI: You cannot continue. You cannot assume that the people want to raise the same issue. Don’t make assumptions when people raise their hands, Chair. That’s the only point I want to make. Don’t make assumptions.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Manyi, I don’t want any assistance from you, and I don’t even value it.
Please!
The MINISTER OF SOCIAL DEVELOPMENT: No, thank you very much, Chairperson. It’s very unfortunate that you didn’t see my hand earlier on, but I respect your rulings that you have made. I just want to ask that under Rule 69 (e). The previous member of the EFF when he left the room. I don’t know his name, and I apologise. He did something that is really unacceptable. As he was walking up, ... [Interjections.] You better shut up, man
... [Interjections.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Zulu, please address me.
The MINISTER OF SOCIAL DEVELOPMENT: As he was walking out, he showed this sign. [Interjections.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Okay.
The MINISTER OF SOCIAL DEVELOPMENT: He showed this sign to you, and you must bring the recording and you must see what it was and make a ruling. Chairperson, also on the same matter under Rule 69 as I’ve said. I think we’ve got ... [Interjections.] Please help us because it’s clear that there are members who have decided that they are going to disrupt
throughout. [Interjections.] So, let’s not waste time over them. We plead with you to make the ruling, because clearly, they don’t want us to feel what you are here for. [Interjections.]
Aniyeke ukubanga umsindo. (Translation of isiZulu sentence follows.)
[Stop making a noise, please.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): We will visit Hansard and deal with that later on. There’s a hand at the back. Hon Papo. Is that hon Papo?
Mr A H M PAPO: Chair, you have actually quoted Rule 84 and Rule 70, which was repeatedly defined in the House. We are now being subjected to screaming matches and insults. Please Chair, we also have rights as members of this House. It’s not only particular members who must be allowed to scream at us, scream at you, and that is taken as normal. It’s clear we’re dealing with people who are clear to defy the rulings which we have made, and I agree with member Zulu that entertaining that
situation is abuse of the rights of other members in this House. [Interjections.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Thank you very much, hon Papo. Paramount to the proceedings here, hon members, it’s the debate and the processes that must unfold. That’s going to happen whether there are members who are prepared to disrupt or not. We will do this until we finish this process.
Hon members of the EFF, may I address you. Hon members of the EFF, you seem prepared to disrupt this House. I am warning you for the last time. ... I am warning you for the last time. Hon Mashabela, sit down. Sit down! Hon members, please, allow the processes to unfold. ... [Interjections.] Allow this member to finish what she wanted to say. I’m not going to entertain other things. Hon Jele, please continue.
Ms N H MASEKO-JELE: Thank you, Chief Whip of the Majority Party,
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Mashabela, I name you.
Ms N H MASEKO-JELE: Ministers and Deputy Ministers in the House ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Jele, could you please take your seat. Hon Mashabela, could you please stop what you are doing? Hon member, put your hand down. Could you please put your hand down? Put your hand down otherwise members of the EFF. I will have to remove all of you out of the House, all of you ... [Interjections.] All of you. I’ll have to do that if you continue with this kind of behaviour, I will have to do that ... [Interjections.] Hon Jele, please continue.
Ms N H MASEKO-JELE: Fellow South Africans, the Supreme Court of Appeal in the case of Freedom Under Law versus Judicial Service Commission, had the following to say. ... [Interjections.] I quote:
Public confidence in and respect for the judiciary are essential to an effective judicial system and, ultimately, to democracy, and founded on the rule of law.
A fair minded and dispassionate observer is bound to conclude that Judge Motata cannot properly discharge his functions. The conduct that we have been at pains to describe is of such gravity as to warrant a finding that Judge Motata be removed from office. There is no alternative measure to removal that would be sufficient to restore public confidence in the judiciary. Chairperson, the drafters of the Constitution anticipated that there would possibly be instances in the future, where drastic steps such as those spelled out in sections 177 would need to be employed. The JSC has been charged by the Constitution and the JSC Act to, inter alia, protect the integrity of the judiciary system. This process is about accountability, ensuring judicial hygiene and building public confidence in the judiciary.
As elected public representatives of the National Assembly, our role is spelled out in section 1771-B of the Constitution. The judiciary cannot function properly without the support and trust of the public. Without trust, the judiciary cannot function, and if the judiciary cannot function, the rule of law will not exist or must die. Judiciary discipline is designed to serve core democratic values like judiciary
accountability, fidelity to the rule of law and adherence to public norms of professional conduct.
Chairperson, our Constitution is founded on, among others, the rule of law, supreme of the Constitution, and a multiple party system of democratic government to ensure accountability and openness. Appropriate checks and balances are an important ingredient of democracy. Checks and balances allow for the involvement or intrusion of one arm of government into another to ensure that there is no over concentration of power. Thus, the composition of the JSC and envisaged co-operation in the appointment of judges between all three arms of government, including other stakeholders such as the legal profession and academia.
In 2012, the Judicial Service Commission Act 9 of 1994 was amended to provide for a written code of judicial conduct which will not only define what misconduct looks like but also provide useful guidance to judges on how they should behave.
Related to the code, is the norms and standards for performance of judicial functions which are brought into force in 2014.
Judge Motata had alleged that as Parliament had not approved a code of judicial conduct, there was no basis upon which he could be charged with misconduct and therefore demand that the JSC should stop the process in connection with the complaints of misconduct and allow him to resume his duties immediately. Those arguments did not find favor with the court and his application was accordingly dismissed. It goes without saying that the office of a judge is a respectable one, so must be those who hold it. A judge’s conduct in and out of court should not dishonour that high office. Impeccable moral and ethical standard is a crucial hallmark of such public office.
Judges should make every effort to ensure that their conduct is above reproach in the view of reasonable, fair minded and informed persons. Judges must exhibit and expose the values of the Constitution. Former Chief Justice Sandile Ngcobo described public confidence in the judiciary as vital to the preservation of the rule of law and ultimately to the preservation of our constitutional democracy. Ngcobo CJ endorsed the famous observation that that the judiciary has neither sword nor purse, but only the confidence of the public, meaning that the public recognises the legitimacy of judicial decisions, even if it disagrees with their content.
Absent such public confidence, people may abandon the courts and resort to self-help. The more the public respects and heeds the importance of court decisions, recognising that their content broadly reflect the moral convictions of the community, the more legitimate the courts, becomes as an institution. The ANC supports the report. [Applause.]
Mr S M JAFTA: Hon Chairperson, Judge Motata’s impeachment is regrettable. His conduct is bereft of conduct expected of presiding officers. Not only did he give wrongful instructions to his lawyers during trials, but he also carried himself dishonourable at the scene where the incident took place.
Judge Motata, with no doubt, lacks integrity and respect for others. Judicial officers are the flag bearers of judicial conduct. Judge Motata is no such flag bearer. On the one hand, he thrives on racial slurs, while preaching constitutionalism on the other.
This Parliament is often criticised for sleeping on the job, when it passes legislation not sanctioned by the Constitution. This is done for the right reasons, and we welcome it.
Equally, this means we must rein in injudicious judicial
conduct. We must not hesitate to uproot conduct that is in violation of the Constitution.
Judge Motata has no regard for our Constitution, just as Judge Hlophe. They continue to run down the very Constitution they sought to promote. The only difference between Judge Hlophe and Motata is the extent of their contempt to the Constitution. Judge Hlophe is a serial constitutional offender and Judge Motata is fast undoing the promises set out in the preamble to the Constitution. We will therefore support this impeachment. Thank you very much.
Mr W HORN: House Chair, our courts have held that in our constitutional order, the judiciary is an independent pillar of state, constitutionally mandated to exercise the judicial authority of the state fearlessly and impartially. As others have indicated, in this equal footing with the executive and the legislative pillars of the state, in terms of political, financial or military power, the judiciary, however, cannot hope to compete.
It is in these terms, by far the weakest of the three pillars, yet its manifest independence and authority are essential.
Having no constituency, no person, no sword, the judiciary must rely on moral authority. Without such authority, it cannot perform its vital function as the interpreter of the Constitution and the final arbiter of disputes between the organs of state, and ultimately, as the watchdog of the Constitution and its Bill of Rights.
Now, the courts have also held that this manner of conducting business of courts is intended to enhance public confidence. In the final analysis, it is the people who must believe in the integrity of judges. Without this trust, the judiciary cannot function properly. And where the judiciary cannot function properly, the rule of law must unfortunately die.
Now, this is the essence of the judgment in state versus Mamabolo by the then Judge of the Constitutional Court, Judge Kriegler, who ironically dealt with an issue or a case that is centred on the concept of scandalising the court. Now, judicial independence and the power of the judiciary to strike down any exercise of public power that’s inconsistent with our Constitution is one of the defining characteristics of our constitutional architecture. There is no room in this country
and therefore also no room in this debate today to bemoan and question the power of the judiciary.
Let me remind those who would like to revisit the idea of constitutional supremacy, whether in subtle and less subtle public attacks on the judiciary, or by supporting proceedings of dubious structures, like cadre deployment committees, that we come from a past, in which there was one party dominance, during which parliamentary supremacy in this country was used and abused, to facilitate and enable apartheid and all practices that came with it.
The adoption of our Constitution and the supremacy it enjoys in our democratic order was and should remain a never-again moment. It should not be revisited by any argument or action that even in the slightest manner could undermine the judiciary and its independence. However, the obligation to jealously guard over its independence is also an obligation of the judiciary and the structures that support it, like the Judicial Service Commission.
Judicial independence, even while it enjoys, as it should, constitutional guarantees, is not without responsibilities.
Judicial accountability is one of these responsibilities that goes hand in hand with independence. Individual accountability is about the openness of court proceedings and the willingness of judges to subject their decisions to scrutiny and appeal.
Collective accountability is about taking responsibility, as an institution, for the proper functioning of our courts and the integrity of the judiciary as a whole. Efficiency in dealing with disciplinary complains is an important aspect of this collective accountability.
Public confidence will invariably be undermined if disciplinary proceedings against judges unfold in the snail’s paced manner that typified the Judge Motata matter. Public confidence will be eroded in the judiciary at every instance where the perception could be created that the rights of individual ordinary members of society, who suffer at the hands of private actions of judges are not protected in the face of the status and stature of the judge. Public confidence will dwindle every time it is necessary to force the JSC to perform its duties and functions in respect of complains against a judge in a reasonable and rational manner through legal action.
Therefore, anyone who is committed to the rule of law and our Constitution must be thankful to Mr Richard Baird, who refused to be intimidated when it seemed the whole world conspired against him, and Freedom Under Law stepped in, when the JSC failed to properly exercise its constitutional duties in this matter.
Terwyl ons vandag hierdie verantwoordelikheid nakom, om die Grondwet te beskerm, is dit so dat ons terselfdertyd vir die Regterlike Dienskommissie moet vra om in die toekoms met groter ywer en moed met klagtes oor wangedrag teen regters te handel.
Die vereiste dat lede van die regbank geskik en gepas moet wees vir hierdie belangrike amp mag nie afgewater of geminag word nie. Daarom is die enigste keuse vir diegene wat die regbank wil beskerm as ’n instelling wat ’n kern rol in ons grondwetlike demokrasie speel, om geen ruimte vir regters te laat, wat hulself aan oneerlike en onetiese gedrag skuldig maak nie. Sulke regters hoort nie op die bank nie. Ek dank u. (Translation of Afrikaans paragraphs follows.)
[While we fulfil this responsibility to protect the Constitution, we must at the same time ask the Judicial Service Commission to deal with complaints of misconduct against judges with greater diligence and courage in the future.
The requirement that members of the judiciary be fit and proper for this important office must not be watered down or disregarded. Therefore, the only choice for those who want to protect the judiciary as an institution that plays a core role in our constitutional democracy, is to leave no room for judges who are guilty of dishonest and unethical behaviour.
Such judges do not belong on the bench. Thank you.]
Mr Q R DYANTYI: Hon House Chair, hon Speaker, the Chief Whip and hon members of the House.
Mandiqale kwamanye amazwe. (Translation of isiXhosa sentence follows.)
[Let me start with the other countries.]
In a lecture in 1998, the Chief Justice of Western Australia, David Kingsley Malcolm, addressed the issue of independence of the judiciary, an inter alia he said:
“In reality, a strong independent judiciary forms the foundation of a representative democracy and observance of the rule of law and human rights. It is primarily the confidence of the community in the legal system which encourages observance of the law, the practice of judicial independence also relies on a committee perception that in resolving disputes between parties, the judiciary reflects and acts upon the basic and enduring values to which community subscribe.”
The judiciary exercises public power as expressed here, and it is right that there be an appropriate check on such a power.
The removal from office of a judge under section 177 as mentioned here ably, under the three grounds of incapacity, gross incompetence, and gross misconduct on the part of the judge. In this case, it is gross misconduct on the part of Judge Nkola Motata.
The Bangalore Principles of Judicial Conduct are designed to provide guidance to judges and to offer the judiciary a
framework for regulating judicial conduct. Six core values are recognised, namely independence, impartiality, integrity, propriety, equality and finally competence and diligence.
The third value, integrity, is essential to the proper discharge of the judicial office. In terms of this value, a judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer. And the behaviour and the conduct of a judge must reaffirm the people's faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done. In simple terms, integrity means doing what is right, even when no one is watching you.
While the promulgation of the South African Code of Judicial Conduct was in 2012 post the incident, it's still worth mentioning, as it necessarily essentially codified ethical and legal norms, which have been in existence prior to 2012. While the actual incident took place in private, South African judges have been guided by ethical considerations in and outside of the performance of the judicial duties.
The Judicial Service Commission is the only body empowered with making a finding of either incapacity, gross incompetence
or gross misconduct. The test for whether conduct constitutes gross misconduct is an objective one and not a thumb suck.
The Judicial Conduct Tribunal concluded therefore, that Judge Motata’s conduct at the scene of his motor accident and the remarks he made were racist and that they impeached on and are prejudicial to the impartiality and dignity of the courts.
It further found that the lack of integrity in the manner in which Judge Motata allowed his defence to be conducted in his trial as incompatible with or unbecoming of the holding of judicial office. The tribunal posed a question. If Judge Motata is to retain the office of a judicial officer, would this negatively affect the public confidence in the judicial system? That's a question they posed. It is common cause, therefore, that the tribunal answered the question in the affirmative and recommended the invocation of the provisions of section 177(1)(a).
To fulfil its constitutional role, the judiciary needs public acceptance of its moral authority and integrity, and the real source of its power. The Constitution commands all organs of
state, including Parliament to protect the independence, impartiality, dignity, and accessibility of this judiciary.
It is important that judges always seek to maintain, protect and enhance the status of the judiciary. To that end, they should be sensitive to the ethical rules which govern their activities and behaviour, both on and off the bench. It was found that Judge Motata’s racist conduct and dishonesty in the corner of criminal trial was inconsistent with the ethics of judicial office, thereby rendering him guilty of gross misconduct.
Judicial misconduct breaks down the very fibre of what is necessary for a functional judiciary. And therefore, the judiciary cannot exist without the trust and confidence of the people. Judges must therefore be accountable to legal and ethical standards. In holding them accountable for their behaviour, judicial conduct review must be performed without invading the independence of the judicial making decision.
The Supreme Court of Appeal made the following remarks:
The public will therefore demand virtually irreproachable conduct from anyone performing a judicial function. It will at least demand that they give their appearance of the kind of conduct. They must be and must give the appearance of being an example of impartiality, independence and integrity. What is demanded of them, judges in other words, is something far above what is demanded of their fellow citizens, and if we want to understand this properly, you only need to look at how in our Constitution we have packaged the three areas of removals.
When it comes to the holders of Chapter 9, we say we remove them if they misconduct and incompetent. When it comes to the Presidents in section 89, we say we remove them if there's a serious violation of the Constitution and the law and they are incompetent. But when it comes to the judges, it raises the bar and says gross misconduct and gross incompetence, which fulfils this sentence that it is demanded of them, something far above any other ordinary citizens.
At this juncture, the National Assembly is called upon to take a decision. And the decision we're taking, hon Horn, is a political decision because I remember you had a problem with
this because you thought a political decision is a partisan decision. It's a political decision because we are the elected representatives.
The Judicial Service Commission has made a finding of gross misconduct. Our case law serves a guide on the question of rationality, of actions using public power. Decisions must be rationally related to the purpose of which the power was given, otherwise they are in effect arbitrary and inconsistent with this requirement.
With what the Judicial Service Commission, JSC and the Supreme Court of Appeal have said, we as members need to ask ourselves the question. What would justify a deviation from their findings? Somebody says Ubuntu. Our very Constitution is espoused in Ubuntu. We've got the Bill of Rights, so you can't want to work outside of that.
Secondly, somebody says we must get something in between, halfway house kind of, something that is not cross misconduct and the JSC was found wanting when they tried to do that. They then instead of focusing on gross misconduct they created a misconduct charge which is not in the Constitution, and had
the judge pay a million rand. And I hope that that money is returned to them because the Supreme Court of Appeal rebuked them that what they did was wrong.
There's no halfway house that you can build. It’s either gross misconduct or you don't meet that threshold. That speaks to the R10 000 that the hon member from of Al Jama-ah was talking about. It's not done. That speaks to what the hon Mkhwebane would have said that let's draw sympathy. We are following. We are here today for a very particular constitutional duty as this House.
While Judge Motata has since retired from active service, we will remember that in our legal system, even the retired judges retained their title and may be called to perform public functions as and when required. This process is about accountability. The people of South Africa expect leadership. The Sixth Parliament is on duty. This sitting is not about individual judges. I want to draw your attention to that. It is not about the Justice Committee presenting its report.
The significance of this sitting is about what you see on the wall, oversight and accountability, our constitutional duty.
If you walk on the NCOP stairs, you see all those pillars written there. We are here today because of this. As the Sixth Parliament, we have created serious footprints of our constitutional duties, we are on duty for this of august House. Today is not the day where we must travel the binaries of joy and tearfulness. Because if you listen, some are joyful, and others are tearful.
The ANC cannot afford to be in those extremes. Ours is to navigate the difficult issue and take emotions out of what we do so that we are not provoked by those who are joyful. And we don't draw sympathy from fake tears. We must not do that. We are here for a job; we are on duty as this House.
We have demonstrated that this House, the Chief Whip would have said in Sona, that in the history of this Parliament, the Sixth Parliament has passed on the most Bills. That's a demonstration that we are not off duty.
Ibikhe yakhona into ethethekayo yokuba kwiPalamente yesiHlanu sasigoxile... (Translation of isiXhosa paragraph follows.)
[It was said that, in the Fifth Parliament, we have withdrawn...]
... in the Fifth Parliament, in a little bit of way we were off duty when the Nkandla matter was brought to us. When they brought the matter section 194, we were on duty. You know what we did. We removed an incompetent person who committed misconduct. We were on duty. When we set up the section 89 panel to look into the seriousness of the violation of the Constitution in terms of the President, when that report came here, we debated that debate with facts and evidence, and we kicked it out of the window. We are on duty as this House. [Applause.]
Asilelanga, sithe qwaa kuba ngelinye ixesha uyakwazi ukuba sembenzini kanti ugoxile. (Translation of isiXhosa paragraph follows.
[We are not asleep; we are awake because sometimes you withdraw while you are at work.]
It is in the existence of our work that we are recommending the removal of Judge Motata. We have taken time and carefully
assessed all relevant evidence at our disposal, applied our minds through a transparent, credible process. In the end, we concluded that Judge Nkola Motata be removed from office.
And if you think about it, we're talking about 30 years of democracy. Today we are coming here to say to you in those 30 years of democracy, we have a case that is 15 years old, half our freedom. It is not the standard that we want to create, that can never be a standard. Therefore, the Seventh Parliament has got work to do so that we're able to speedy up all these issues and as the Justice Committee we are doing exactly that.
I end off with the following quote from Chief Justice of ... [Inaudible.] ... India.
“Wise judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, their fearlessness, their fairness and objectivity of their approach, and by their restraint, dignity and the quorum with which they observe in their judicial conduct.”
Today is about us planting seeds for the Seventh Parliament because ...
... siyabuya. (Translation of isiXhosa sentence follows.)
[...we are coming back.]
We are going to come and build on what we have done. Thank you, hon Chair.
Debate concluded.
Question put: That the House resolve to call for the removal of Judge N J Motata in terms of section 177(1) of the Constitution.
Bells to be rung for 10 minutes.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): I assumed that 10 minutes would be sufficient apparently, we could have made it
15. Hon members, ay I have your attention. Let me bring to your attention that when voting on this question, the members who have been ordered to leave the Chamber due to
transgression of the rules will not be called during the roll call vote. These members are the hon Ntlangwini, the hon Mhlongo, the hon Mente, the hon Mkhalipi and the hon Gericke. I hope I pronounced it correctly.
Hon members, the Rules of the National Assembly provides for different procedures for members to cast their votes. These include voting by electronic means or manual voting procedure by way of a Whip or by voice. The Rules also stipulate that the Speaker. Must predetermine the voting procedure. For this division, the Speaker has determined that a manual voting system will be used whereby each member will be called upon and requested to voice his or her vote.
In terms of the Rules, all members present when the question is put with the doors barred must vote or record an abstention. This Rule does not apply to a member or to a Minister or Deputy Minister who is not a member of the House. Political parties provided a list of members who will be called first when it is their party’s turn to vote. After that party’s list has been called that many members of the party will be called alphabetically.
The Secretary will call each member from the membership list, starting with those from the majority party. Members will be called by their surname, followed by their initials. In order to facilitate this process, I appeal to hon members to indicate their vote only without preamble or statement and without and without delay. Members must simply indicate yes or no or abstain. This will assist the tellers in ensuring that your vote is correctly captured.
In the event a member’s name is called and they are present, but for whatever reason, do not indicate their votes, an opportunity will be provided for such members to raise their hands after the last member is called from the list. At which point they will be recognised to cast their vote. Order.
The question before the House is that the National Assembly resolve to recall for the removal of Judge NJ Motata in terms of section 177(1) of the Constitution from office. Those in favour of the call for removal of the Judge NJ Motata from the office in terms of section 177(1) of the Constitution will vote yes. Those against the call for the removal of the Judge, NJ Motata from the office will vote no. Those who want to abstain will record their vote as such. Voting will now
commence. The doors to the Chamber will remain locked until voting is concluded. The Secretary will now proceed to call members.
A quorum being present in terms of Rule 98(1), voting commenced.
Ms N R MASHABELA: No to the biased Chairperson who refused the EFF to ... [Interjections.] ... listen to me. The biased Chairperson who refused the EFF to register its objection and call for division. Why did you refuse the EFF to object? You must go back study the Rules of this House. You are a useless Chairperson. Very useless Chairperson in this House.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Mashabela, could you please leave the House?
Ms N R MASHABELA: Why? Are you not useless? Are you not useless?
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Leave the House.
Ms N R MASHABELA: But you refused to recognise the EFF when they raised their hands. You don’t even take our hands. I’m not leaving the House; this is not your House.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Mashabela, leave the House.
Ms N R MASHABELA: I’m not leaving. This is not your House.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Information, Communication and Technology, ICT, could you kindly assist with switching off microphones of this nature. Hon Mashabela, could you please leave the House? Serjeant-at-Arms, please help her out. Hon Mashabela, ...
... sal jy asseblief die Huis verlaat? [Tussenwerpsels.]
(Translation of Afrikaans sentence follows.)
[... will you please leave the House? [Interjections.]]
Hon Mashabela, please leave the House. Hon Mashabela, please leave the House. I will have to ask the Protection Services to take you out. Thank you for the assistance. Members of the
Protection Services will be requested to help the hon Mashabela to leave the House. Thank you, hon members order.
Ms L H ARRIES: Chairperson, I’m here! Chairperson, you are breaking your own Rules. The doors were locked, and you allowed strange people to come into the House – to come inside the House while we are busy voting. You are violating your own Rules. You are breaking the Rules, Chairperson. How ca you open the door while we are busy voting? Strange people came into the House. You are violating your own Rules. You are out of order, Chairperson.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Information and communications technology, ICT, please help us. Disconnect that mic. Just silence that mic. It is not assisting us.
The CHIEF WHIP OF THE OPPOSITION: Chair, I am rising on Rule 112(2) which indicates that when the doors have been barred, no member may enter or leave the Chamber. [Interjections.] The concern here is that now the members have been allowed to leave the Chamber and this has tainted the integrity of the vote. That is the concern because it is right here in the
Rules. The member should had been named and they should had been asked to leave after the division had been called.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Gwarube, I hear you, but the order of the House at this point in time cannot be compromised. I could not allow it.
Mrs M R MOHLALA: And then you chose to break the Rules of this House, Chairperson.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Information and communications technology, please switch off that mic. Hon Gwarube, unfortunately, we could not allow this kind of a thing. Shall we proceed! [Interjections.] Hon members of the EFF, please.
Mr B A RADEBE: Hon Chairperson, with due respect, if you observe the Rules of the House, there will be no points of order during the division. Just allow the division to be done and completed. Please, let us observe that Rule.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon members, it is correct. The point of order is sustained. We cannot entertain
any other thing except the business at hand - we will not allow it. Rule 116, Points of order during division, reads:
Subject to all other rules relating to the taking of points of order, while a division is in progress, members may only raise points of order directly related to the procedures during the division.
Please! Please, shall we continue.
An HON MEMBER: On a point of order, Chairperson. Chair, on a point of order.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): I have ordered ICT to switch off that mic. I did not recognise you, hon member. No, I did not recognise you. We need to continue with what we are supposed to do. “Qhubeka, nobhala” [Continue, secretary].
Me L H ARRIES: Voorsitter, ek weet nie hoekom ons moet stem nie, want Reël 116 is gebreek. So waarvoor moet ons stem?
Hierdie stem is nie meer wettig nie. (Translation of Afrikaans paragraph follows.)
[Ms L H ARRIES: Chairperson, I don’t know why we must vote, because Rule 116 has been broken. So why do we have to vote? This vote is no longer legal.]
The Table staff is there. What are they doing there? Why don’t they advise you? They are the legal people. There are Rules in this House. They are there. Why are they sitting there if they cannot advise you?
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Arries!
Ms L H ARRIES: Chairperson, you are wrong. You are wrong, Chairperson.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Arries, could you please stop what you are doing. Continue, secretary.
Nk M S KHAWULA: Niyabona nina, niyasidelela nina. [Ubuwelewele.] Anikwazi uma sifuna ukunibuza imibuzo nilokho nisitshela ukuthi asivote la. (Translation of isiZulu paragraph follows.)
[Ms M S KHAWULA: I see, you are disrespectful to us. [Interjections.] Don’t keep telling us to vote when we want to ask you questions.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Khawula and hon Arries, could you please leave the House. Hon Arries and hon Khawula, could you please leave the House. Hon Arries, leave the House. Members of the protection services, could you please assist hon Arries to get out. Serjeant-at-arms will take over. Hon Arries, is not likely to leave.
An HON MEMBER: She is refusing.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): I thought as much. Hon Arries! Protection services, could you please assist us to help hon Arries to get out of the House. Members of the protection services, please come in and help hon Arries to get out of the House. [Interjections.] Hon members, let’s calm down, please. May I request that we take care that nobody comes in. No member should come in as other members are ushered out.
Mr B A RADEBE: Hon Chairperson, what has happened now was to disrupt the voting process of Parliament. I think that act deserve to be referred to the Powers and Privileges Committee. You cannot be held at ransom by the people who do not understand the Rules of the House. They must be referred to.
Those people that you have named must please be referred to the Powers and Privileges Committee.
The CHIEF WHIP OF THE OPPOSITION: House Chair, I am rising on Rule 117. The concern here is that this vote has now been fatally compromised. It is likely going to succeed in the court of law if it is taken on review. This vote is now compromised. I am asking you to please apply Rule 117 in recalling the vote to rehappen so that we can make sure that we cross our t’s, our dot’s and our i’s. Letting people in when the doors have been closed is compromising this vote.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Gwarube, I think you raised the matter and I have ruled on it. You raised that matter before, and I have ruled on it. I cannot do it again. I have ruled on that matter.
Dr C P MULDER: Chairperson, I would like to address you on this specific point because I think it is very important. There is no doubt that the voting procedure has not been tainted in any way in whatsoever. Nothing at all! The fact of the matter is that, yes, the doors are closed. Why are the doors closed? This is to prevent other members to come into the House and vote. That didn’t happen. But while the doors are closed, we still have a situation where law and order need to be maintained in the House. If that is not the case people can run around during a voting session and cause a mark in the House. You acted absolutely correct. The vote is not tainted, and let us proceed.
Ms R N KOMANE: Chairperson, we cannot be ... [Inaudible.] ... here. We were voted here. Chairperson, our points of order should not have eyes. You should also recognise members of the EFF when they want to raise points of order. It is not the House of the ANC. The ANC people did not invite us to this House. Please, you must be fair when you exercise your duties.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon member, please, you cannot take the mic and shout.
Ms R N KOMANE: It is because you did not afford us chance to talk. You don’t want to follow the Rules. You always recognise your members - members of the ANC. This is not the ANC caucus
- this is not the ANC caucus. This is Parliament, and it should be treated as such. When we raise points of order you must recognise us. We did not come here on favour. We were not invited to come here, but we were voted to come here.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): If you continue this way, I am going to remove you from the House.
Ms R N KOMANE: That is what you are good at. You are good at removing us. You can remove me it does not matter anymore. You can remove all of us. We are not here on the invite of the ANC. Never! We are not going to bow to the ANC caucus.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Komane! Hon Komane!
Ms R N KOMANE: No, we are not here on your invite, but we have been elected to be here.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Komane, you are out of order.
Ms R N KOMANE: I am in order, and you are out of order yourself, Chair. You are out of order. Ou can’t say I’m out of order. You are out of order yourself. You broke the Rules of this House and now you want us to act as if we were invited here. We were not invited, but we were voted.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Komane!
Ms R N KOMANE: We are same with those ANC caucus of yours. When they raise hands, you recognise them, but when we raise hands, you don’t recognise us. Why? Is it because we are stepchildren in this Parliament? We are not stepchildren in this Parliament. We were voted like you to be in this Parliament. We did not come here on a favour. You did not do us a favour to come here. Never! You must not treat us like stepchildren here. We are not stepchildren. You must desist from what you are doing.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Komane, that kind of behaviour is totally unacceptable.
Ms R N KOMANE: The same way as yours, it is unacceptable, Chair. Your conduct is also unacceptable.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Komane, please, leave the House.
Ms R N KOMANE: I will leave it. It is your House, and you can keep it. I am leaving and I don’t care. This is your House, and you can keep it.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Leave the House. Thank you very much.
Ms M S LETLAPE: Chairperson, we can’t be in this House ... we must teach you your job. Must you rule according to how you feel, and must we just succumb to that? What you have done to all the other members of the EFF is totally unacceptable.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Information and communications technology, switch off the mic. Hon member, please leave the House. Hon member, please leave the House. Serjeant-at-arms, please assist her to leave the House.
Members from the ANC, may I kindly request you not to assist me. Shall we continue, “nobhala” [secretary].
Mr W T I MAFANYA: We all agreed that we are ging to vote.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon member!
Mr W T I MAFANYA: Listen to the howlers. I haven’t even started to vote.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): No, please.
Mr W T I MAFANYA: I haven’t even started to vote.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): No, don’t do that.
Mr W T I MAFANYA: What must I do?
The HOUSE CHAIRPERSON (Mr M L D Ntombela): The guide has been read to you on how to go about voting. Please, don’t make a speech, and don’t make a preamble. Yours is just to say, yes or no.
Mr W T I MAFANYA: The incompetence lands on your part. It is the one that causes all this commotion. The people who have to advise you is the staff that ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon member, I don’t need your advice.
Mr W T I MAFANYA: You listen to others from the other parties to give you guidance on what you should do. I am not going anywhere.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Information and communications technology, switch off that mic - switch off that mic. Hon members, the guidelines have been read to you, and you know what to do. When you stand up to deliberately disrupt the House, I will definitely request you to leave the House. It is just what we are doing.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): ICT, switch off that mic!
Hon member, you have been read the guidelines. You know what to do. When you stand up to disrupt the House deliberately, I
will definitely request you to leave the House. So just stop what you are doing.
Ms N MAKAMBA-BOTYA: Chairperson, what you are doing is very incompetent. [Interjections.] You are incompetent, and this is despicable! You are reducing this House to a circus. [Interjections.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Switch of the mic! After I spoke to that other member, you immediately repeat the same thing. This means you are being deliberate. This is a deliberate move! So, anyone who does that now will have to leave the House, right? It’s not going to happen again. We cannot be entertaining chaos here! Yours is just to say yes or no. If you cannot do that, and want to do a preamble, then you will have to leave the House.
Mr M MANYI: You refuse the advice. This is the mess you have created. [Interjections.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Switch off the mic! Hon Manye, please leave the House. [Interjections.] Hon Manye, please leave the House. [Interjections.] Serjeant-at-arms,
please assist hon Manye to leave the House. [Interjections.] Protection Services, please assist hon Manye to leave the House. [Interjections.]
Ms P MARAIS: Chairperson, there is going to be a court case and you are going to lose ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Switch off the mic! [Interjections.] Hon Marais, please leave us in peace.
Mr A MATUMBA: You reduce the objection of the EFF ... [Interjections.] Please note that you reduce the objection ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Please switch off the mic! Hon Matumba, thank you very much for your co- operation.
Adv B J MKHWEBANE: Siyobohla manyosi. (Translation of isiZulu sentence follows.)
[Adv B J MKHWEBANE: The chicken will come home to roost.]
You can’t be violating our Rules in your treatment of us. [Interjections.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Switch off the mic! Please leave the House, hon Mkhwebane. [Interjections.]
Mr T MOGALE: Chairperson, I’m just worried that you have not allowed members of the EFF to record their votes. So how are you going to account for ... [Interjections.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Mogale! [Interjections.] ICT, please switch of the mic!
Mr T MOGALE: You have not allowed the members of the EFF to
...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): ICT, please switch off the mic. Hon Mogale, please leave the House.
I am again requesting the members of the EFF to refrain from doing what they are doing. It is not helping us. [Interjections.] It is not helping you, either!
Ms M R MOHLALA: Chairperson, we really don’t ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Switch off! Hon Mohlala, please leave the House. [Interjections.] Serjeant-at- arms, please assist her to leave the House. [Interjections.] Protection Services, please assist the hon member to vacate the House. [Interjections.] Don’t punch them! [Interjections.] Order, hon members!
Mr M SHIKWAMBANA: Chair, every time when there ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Switch off the mic! Hon member, please leave the House. [Interjections.] Serjeant- at-arms, please assist the hon member to leave the House. [Interjections.]
Ms N P SONTI: I’m waiting for them to just keep quiet. [Interjections.] I’m waiting for them, Chair. [Interjections.]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Switch off!
Nksz N P SONTI: Ukhohlakele. [You are cruel]
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Hon Sonti, leave the House.
Serjeant-at-arms, please assist her to leave the House.
Just help her with the bags. Haaibo! [Oh no!]
Protection Services, could you please assist hon Sonti to leave the House. [Interjections.] Protection Services, could you please move a little bit faster! [Interjections.]
Hon members, thank you very much. Let’s proceed. Could you please lower your voices.
VOTING CONTINUES.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Is Mr Mafanya present here? If Mr Mafanya is present here, he should please cast his vote. If Mr Mafanya is prepared to, can go ahead.
Mr W T I MAFANYA: Chair, you gave me an opportunity to do that
...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Mr Mafanya ...
Mr W T I MAFANYA: ... and I responded to that. And now that you see I’m remaining alone here then you come back to me, after having attended to others.
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Mr Mafanya, Mr Mafanya ...
Mr W T I MAFANYA: Maybe you forgot to throw me out as the others ...
The HOUSE CHAIRPERSON (Mr M L D Ntombela): Please switch off that mic.
I have requested that, that kind of exercise should not be done, Mr Mafanya. But you continue to do it. So, I would request you to leave the House as well. [Interjections.]
Shall we proceed, Secretary? [Interjections.] Order! Order, hon members.
Hon members, as I indicated earlier, members who remained present but could not, when we called, indicate their vote, may now raise their hands, after which I’ll recognise them to indicate their vote. The Secretary will assist in that regard. Thank you very much.
Hon members, members who ... I mean present in the House and were called upon to vote but did not exercise their right, will be reflected as abstained. Thank you.
The voting is now closed. The result of the division will be pronounced.
Agreed to.
The House adjourned at 20:42
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