ATC240222: Report of the Powers and Privileges Committee into allegations of conduct constituting contempt of Parliament by members of the National Assembly during Oral Questions to the President on Tuesday, 30 August 2022

Powers and Privileges of Parliament

Report of the Powers and Privileges Committee into allegations of conduct constituting contempt of Parliament by members of the National Assembly during Oral Questions to the President on Tuesday, 30 August 2022

Background

On Thursday, 30 August 2022, during Oral Questions to the President at a sitting of the National Assembly (the Assembly), after having disregarded the authority of the Chair and causing a serious disruption, four members of the Assembly were directed by the Speaker to leave the Chamber. Instead of leaving the Chamber as directed by the Chair, the members refused to leave and had to be physically removed from the Chamber by the Parliamentary Protection Services (PPS).
The affected members were Messrs K Ceza, MN Paulsen, DF Mthenjane, and Ms NV Mente. Mr Mthenjane subsequently resigned and is no longer a member of Parliament.
On 31 August 2022, the Speaker submitted a report on the incident to the Subcommittee on Physical Removal of Member from Chamber (the subcommittee) in terms of Rule 203(1). In terms of this rule, the subcommittee must consider the circumstances of the physical removal of a member from the Chamber as reported to it by the Speaker in terms of Rule 73(12), taking into account all relevant aspects including the conduct of the member concerned, the ruling by the relevant presiding officer, and the manner in which the member was removed. Rule 73(12) requires the Speaker to refer the circumstances surrounding the physical removal of a member from the Chamber to the subcommittee for consideration within 24 hours.
On 13 September 2022, the subcommittee found that there was sufficient evidence, based on the unrevised Hansard, the video footage, and the Speaker’s report that the members who had been physically removed from the Chamber had violated the Assembly Rules.
On 23 November 2022, the National Assembly Rules Committee (Rules Committee) considered the report of the subcommittee and agreed with the findings of the subcommittee that the affected members had violated the rules of the Assembly. The Rules Committee agreed that the matter be referred to the Powers and Privileges Committee for consideration and report.

B.Consideration of the matter by the Powers and Privileges Committee

Assembly Rule 214 provides that the Powers and Privileges Committee (the Committee) must deal with a contempt matter in accordance with the procedure contained in the Schedule to the Rules of the National Assembly (the Schedule) and must table a report in the Assembly on its findings and recommendations. If the Committee finds a member guilty of contempt, it must recommend an appropriate penalty(ies) from those contained in section 12(5) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004 (No 4 of 2004) (the Act).
On 21 April 2023, the Committee met to consider the matter and resolved that as per Item 5 of the Schedule, a duly qualified person who is not a member of the Committee be appointed to act as the initiator for the hearings on the matter. The initiator presents the evidence regarding the allegations and may cross-examine the member and any witness giving evidence on behalf of the member. In terms of the Schedule, at the conclusion of the hearing, the initiator may address the Committee on the evidence presented to it and may propose an appropriate penalty(ies) to be recommended by the Committee in its report.
Initially, Advocate Norman Arendse SC was appointed as the initiator for the matter. He subsequently withdrew as the initiator. Advocate Tanya Golden SC replaced him as the initiator as agreed to by the Committee. Adv Penny Magona was appointed as her junior.

C.Notices of the hearings and charges served on the affected members

In line with the provisions of the Schedule, the affected members were informed that they were entitled to be assisted by a fellow member or could request the Committee to allow them legal representation by a person who was not a member. Any such legal representation would be at the cost of the affected members. The members, through their attorneys, requested to be allowed legal representation, which the Committee agreed to.
The notices of hearings and charges preferred against the affected members were served on the members and their attorneys on 15 September 2023. They were informed that the hearings would be held on 27, 28 and 29 September 2023. However, the hearings were postponed to 11, 12 and 14 December 2023 by agreement between the initiator and the legal representatives of the affected members.
Furthermore, the affected members were notified that if they wished to give an explanation after they had received the notices, they were free to do so either orally or in writing at the hearings.
All three members had a similar charge preferred against them, i.e. Messrs Ceza and Paulsen, and Ms Mente. Two similar charges were preferred against Mr Ceza and Ms Mente. Mr Paulsen had a second separate charge preferred against him. Ms Mente had a third separate charge preferred against her.
The similar charge preferred against all three members was as follows:

“It is alleged that you are guilty of contempt of Parliament in terms of section 13(a) and (c) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 (“the Act”) in that, as a Member of Parliament and during the sitting of the National Assembly on 30 August 2022, you contravened ss 7(a) and (b) of the Act read together with NA Rule 69(a), (c) and (f) when during the proceedings you, inter alia, wilfully and intentionally failed and/or refused to (i) comply with an instruction by the Speaker to leave the National Assembly; (ii) improperly interfered with or impeded the exercise or performance by the National Assembly of its functions; (iii) obstructed other Members from proceeding with the meeting in the National Assembly; and (iv) improperly interfered

with the performance by other Members of their functions in the National Assembly. By engaging in such conduct which was grossly disorderly, you created and took part in a disturbance during a meeting of the National Assembly within the parliamentary precinct in breach of s 7(e) of the Act.”

The similar charge preferred against Mr Ceza and Ms Mente was as follows:

“It is alleged that you are guilty of conduct constituting contempt of Parliament in terms of s 13(c) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act of 2004 (the Act) in that as a Member of Parliament and during the sitting of the National Assembly of 30 August 2022, on Questions to the President, you did not raise a point of order in terms of Rule 92(1) but persisted to speak while the Speaker addressed the House, and disrupted proceedings. When ordered to leave the Chamber in terms of Rule 70 for disregarding the authority of the Chair, you refused to leave having been ordered to do so by the Presiding Officer, and the Presiding Officer was compelled to instruct the Serjeant-at-Arms to remove you forthwith. Further in breach of ss 13(c)and 13(d) of the Act, you failed and/or refused to comply with the order to leave the Chamber compelling the Speaker to invoke Rule 73(2) of the Rules, and you were duly removed by the Parliamentary Protection Services. Such conduct improperly interfered with and impeded the exercise and performance of the House of its authority and functions contemplated by s 7(a) of the Act read together with NA Rule 69(a), (c), (d) and (f).”

The second separate charge preferred against Mr Paulsen was as follows:

“It is alleged that you are guilty of conduct constituting contempt of Parliament in terms of s 13(c) read together with s 26 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 (the Act) and NA Rule 69(a), (b), (c), (e) and (f), and Rule 73(5) in that as a Member of Parliament and during the sitting of the National Assembly on 30 August 2022, on Questions to the President, you hindered or obstructed a staff member in the execution of the staff member’s duty by physically intervening in the removal of Honourable Ceza.”

Lastly, the third separate charge against Ms Mente was as follows:

“It is alleged that you are guilty of conduct constituting contempt of Parliament in terms of ss 13(c) and (d) of the Act in that as a Member of Parliament and during the sitting of the National Assembly on 30 August 2022, on Questions to the President, and following a disturbing and volatile exchange of remarks between Honourable T Mgweba and yourself, the Speaker requested both members to withdraw the remarks which you (Honourable Mente) refused to do. When ordered to leave the Chamber in terms of Rule 70 for disregarding the authority of the Chair, you failed and refused to comply with the order.

Further in breach f s 26 of the Act, the Serjeant-at-Arms reported that you would not comply with the request to leave, and Rule 73(2) had to be invoked by the Speaker and you were duly removed by female staff of the Parliamentary Protection Services.

Such conduct was in breach of ss 7(a), (b), (e) and (f) of the Act read together with NA Rule 69(a), (c), (d) and (f).”

D.Summary of evidence presented to the Committee

The initiator put the charges to the three affected members. They all pleaded not guilty to the charges preferred against them.
Before proceeding to call her first and only witness, the initiator submitted into evidence commissioned affidavits of Mr M Xaso, the Secretary to the National Assembly, Mr T Maleeme, the Acting Serjeant-at-Arm, Mr N Stander, the Control Language Practitioner, Ms L Ann Bryan, the Control Language Practitioner, Mr S Makana, Chamber Support Officer, and Mr T Mekoa, the Manager of Parliament’s Broadcasting and Technical Support Unit. The legal team of the affected members had no objection to the submission of the technical affidavits of Messrs Mekoa, Stander and Mme Ann-Bryan. As regards the rest of the affidavits, the legal team of the affected members indicated that they would decide that based on the evidence to be given by Mr Xaso on whether the officials who deposed to those affidavits should be called to give evidence.
After the charges were put to the members, the initiator called her only witness, Mr M Xaso, the Secretary to the National Assembly to give evidence concerning the charges put to the affected members. Mr Xaso is the Chief Advisor on matters of parliamentary procedure in the Assembly. He plays that role in relation to joint sittings, Assembly sittings and committees of the House or joint committees of the two Houses. He has the responsibility to ensure that proceedings run smoothly in accordance with the Constitution, the rules, and any applicable law.
In his evidence, Mr Xaso stated that he was present at the sitting of the National Assembly on 30 August 2022 and had played an advisory role with regard to the proceedings.
He recalled the events of that day as they were shown in the video footage. He testified that the affected members insisted on demanding answers to questions which were not part of the pre-approved agenda for that day and persisted in raising the same points of order on which the Speaker had already ruled. The conduct of the affected members delayed the proceedings and prevented the House from conducting its arranged business. The House could only proceed to deal with its business after a delay of about 48 minutes after the affected members had been removed from the Chamber.
He stated that the authority of the Speaker included maintaining the decorum of the House by ensuring that there was strict observance of the Rules of the House. The Speaker was vested with the power and authority to deal with points of order, and to rule on them. Her rulings and that of other presiding officers were final and may not be challenged. A member who felt aggrieved by a ruling, could request that the ruling be referred to the Rules Committee for consideration and report. In considering the ruling, the Rules Committee must confine itself to the principle or subject of the ruling and not the ruling itself.
On the day in question, the Speaker had great difficulty in restoring order and maintaining the decorum of the House when Messrs Ceza, Paulsen and Mme Mente caused or contributed to the disruption and delayed the business of the House. The Speaker made various rulings before she ordered the members to leave the House, which they refused to do.
The Speaker had no choice but to ask the members to leave the House in order to restore order. When they refused to do so, she asked the Serjeant-at-Arms to assist the members to leave the House. When they still refused to heed the Serjeant-at-Arm’s request to leave as ordered to do so by the Speaker, the Speaker then had to call the Parliamentary Protection Services to remove the affected members.
The evidence as portrayed in the video footage and the unrevised Hansard, which Mr Xaso confirmed, showed that Mr Ceza disobeyed the authority of the Speaker when:
- He persisted in speaking while not being recognised by the Speaker and failed to take his seat when the Speaker was speaking;
- Asked several times to leave by the Speaker he sought to justify his refusal to leave the Chamber by claiming that he was waiting for the outcome of the “engagement” between the Speaker and Mr Malema MP.
Mr Paulsen testified and admitted that he used his arms to prevent the PPS from removing Mr Ceza from the Chamber. He claimed that he was waiting for the outcome of the “engagement” between the Speaker and Mr Malema regarding the removal of Mr Ceza. The evidence as portrayed in the video footage and the unrevised Hansard showed that the Speaker did not address or engage Mr Malema on the issue of Mr Ceza.
Regarding Ms Mente, the video footage and the unrevised Hansard showed that the Speaker requested her to withdraw the remarks she had made to another member, Ms Mgweba. Ms Mgweba withdrew her remarks when ordered to do so by the Speaker, but Ms Mente refused to withdraw her remarks.
The initiator stated that whilst the actual remarks were not reflected in the unrevised Hansard and the video footage, Ms Mente did not deny that she had made remarks to Ms Mgweba. The Rules were clear that the Speaker’s rulings were final and binding and any member who was not satisfied with them had to follow due processes as outlined in the rules. It was not open to Ms Mente to challenge the Speaker’s ruling in such a defiant and disrespectful manner.
The video footage showed that Ms Mente refused to leave when approached by the Serjeant-at-Arms, which was a clear contravention of the rules. The Speaker had then to call upon the PPS to remove her from the Chamber.
In her closing arguments, the initiator respectfully submitted that Mr Paulsen and Ms Mente should be found guilty as charged.

E.Findings of the Committee

Having engaged with the evidence presented by the initiator, the Committee found the evidence presented persuasive in terms of the arguments and evidence put forward, except with regard to Ms Mente.
With regard to Ms Mente, the Committee was of the view that because it could not be determined what remarks she made to Ms Mgweba and whether the remarks were unparliamentary or not, Ms Mente should be given the benefit of the doubt and not be found liable for contempt.

F.Aggravating and mitigating factors with respect to penalties

The Committee agreed that Messrs Ceza and Paulsen be found guilty of the charges preferred against them. The Committee further agreed that Ms Mente not be found guilty of the charges preferred against her.
With respect to aggravating factors, the initiator drew the attention of the Committee to the relevant provisions in the Act, namely, section 12(1), 12(3), 12(5) and 12(9).
Section 12(5) of the Act states:

“When a House finds a member guilty of contempt, the House may in addition to any other penalty to which the member is liable under this Act or any other law, impose anyone or more of the following penalties:

a formal warning;
a reprimand;
an order to apologise to Parliament or House or any person, in a manner determined by the House;
the withholding, for a specific period, of the member’s right to the use or enjoyment of any specified facility provided to members by Parliament;
the removal, or the suspension for a specified period, of the member from any Parliamentary position occupied by the member;
a fine not exceeding the equivalent of one month’s salary and allowances payable to the member concerned by virtue of the Remuneration of Public Office Bearers Act, 1998 (Act No 20 of 1998); or
the suspension of the member, with or without remuneration, for a period not exceeding 30 days, whether or not the House, or any of its committees is scheduled to meet during that period.”

4. The initiator submitted that the charges of contempt of Parliament which the affected members had been found guilty of were serious.
5. The affected members acted deliberately and engaged in conduct that created disorder and disruption in the House. They undermined the authority of the presiding officer (the Speaker) by refusing to obey her rulings.

6. The initiator submitted that the affected members warranted a penalty that was sufficiently serious. To this end, she recommended that the penalty set out in section 12(g) of the Act would be appropriate, i.e. suspension of the two affected members without remuneration for a period of one month, whether or not the House or any of its committees was scheduled to meet during that period. She suggested that the penalty of suspension without remuneration run from 1 to 31 March 2024.

7. She submitted that a further appropriate penalty for the two affected members would be an order to apologise in person and physically in the House to the President, the Speaker, and the people of South Africa in terms of section 12(5)(c) of the Act.
The legal representative of the affected members addressed the Committee on three matters. He wanted it to be recorded that the Committee was not properly constituted, and that was not because the rules did not provide for it. The argument was that the rules should not provide for the manner in which the Committee is constituted. The problem was that it was ANC led, and therefore it would be unreasonable to expect a fair hearing by a Committee constituted in such a manner sitting in judgment of its political opponents. Hence, they advocated for a fact-finding Committee chaired by a retired judge.
He argued that it was also untenable to have a person who advises Parliament (Mr Xaso) being a witness to the case of Parliament and be the same person advising the very Committee he gave evidence to. He argued that the perception of bias was palpable and could not be escaped by the Committee.
He stated that they had three defences. The fist defence was that the charges stemmed from the unfairness of the decisions that the Speaker made. He alleged that she was inconsistent in the manner she applied the rules and that was clear from the evidence. It was alleged that Mr Ceza spoke when she had said that she would take no further points of order and was ordered to leave the House. When ANC members did the same thing, they were not sanctioned by the Speaker.
In relation to Ms Mente, there was simply no basis for the Speaker to rule against her because the Speaker did not know the nature of the remarks she made. When the Speaker did not know the nature of the remarks made by Mr Dhlomo, she undertook to study the unrevised Hansard. However, she did not follow the same procedure with respect to Ms Mente.
The Committee noted that the issue of the composition of the Committee was before the court, but the Assembly Rules regarding the matter were not suspended.
Furthermore, the issue before the Committee was a narrow one. It was to look at the evidence presented and decide whether contempt had indeed been committed by the affected members.
The Committee found the submission of the initiator persuasive and reached consensus that the two affected members must be ordered to apologise as spelt out by the initiator. With respect to the penalty of suspension without remuneration, the Committee agreed by consensus that the suspension must be for 30 days starting from 1 to 31 March 2024.
The motivation for the imposition of suspension against Messrs Ceza and Paulsen was that they had been previously found guilty of contempt for participating in a disruption on 11 July 2019 when they sought to prevent Minister Pravin Gordhan from speaking on his budget vote.

G.Recommendations to the House

In light of its findings of guilt against the two affected members, the Committee, with the exception of Dr Ndlozi who dissented, recommends that the National Assembly impose the following penalties with respect to the two affected members:

An order to apologise in person in the House to the President, the Speaker and the people of South Africa as determined by the House as set out in section 12(5)(c) of the Act; and
Suspension of the members without remuneration for a period of 30 days, whether or not the House or any of its committees is scheduled to meet during that period starting from 1 to 31 March 2024 as set out in section 12(5)(g) read with section 12(9) of the Act.

Report to be considered.

Documents