ATC240222: Report of the Powers and Privileges Committee into allegations of conduct constituting contempt of Parliament by Mr M J Zwane, MP

Powers and Privileges of Parliament

Report of the Powers and Privileges Committee into allegations of conduct constituting contempt of Parliament by Mr M J Zwane, MP

 

A. Background

 

 

1. On 2 May 2023 , the National Assembly approved the report of the Joint Committee on Ethics and Members’ Interests on the contravention of the Code of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council Members ( “ the Code”) by Mr Mosebenzi Joseph Zwane and related penalties as specified in the report.

2. The penalties impose d included a f ine to the amount of f ive days’ salary, a suspension f rom participation in parliamentary debates for a parliamentary term, and an apology to be entered in the House. The f ine of f ive days’ salary was effected in May 2023 .

3. The suspension f rom participation i n parliamentary debates took effect f rom the resumption of the third parliamentary term running f rom 29 August to 22 September 2023 . During this t ime, Mr Zwane was able to attend plenary and mini- plenary sessions of  the  National  Assembly,  but  not  participate  in  those proceedings.

4. Arrangements were made with the Chief Whip of the Majority Party’ s office to ensure that Mr Zwane present ed himself to the House on 2 May 2023 . Mr Zwane was expected to present himself and enter an apology to the House, but he was absent that day. The Speaker subsequently communicated to Mr Zwane that his conduct was unacceptable.

5. On 6 September 2023 , after arrangements were made with the offices of the Speaker and the Chief Whip of the Majority Party for Mr Zwane to enter an apology in the House, he was again absent f rom the House.

6. On 12 September 2023 , the Speaker referred allegations of conduct constituting contempt of Parliament against Mr Zwane to the Powers and Privileges Committee ( the Committee) for consideration and report.

 

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

 

1. Assembly Rule 214 prescribes that the Committee must deal with a contempt matter in accordance with the procedure contained in the Schedule to the Rules of the Nati onal Assembly ( the Schedule) and must table a report in the Assembly on its f indings and recommendations. I f the Committee f inds a member guilty of contempt, i t must recommend an appropriate penalt y( ies) f rom those contained in section 12 ( 5 ) of the Po wers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004 ( No 4 of 2004 ) ( the Act).

2. On 26 September 2023 , the Committee met to consider the matter and resolved that as per I tem 5 of the Schedule a duly qualified person be appointed to function as the initiator for the hearing on the matter. In terms of the Schedule, at the conclusion of the hearing, the initiator may address the Committee on the evidence presented to i t and m ay propose an appropriate penalty( ies) to be recommended by the Committee in i ts report.

3. Advocate Zuko Mapoma SC was appointed as the initiator by the Committee.

C.Notices of the hearing and charges served on the affected member

 

1. In l ine with the provisions of the Schedule, the affected member was informed that he was entitled to be assisted by a fellow member or could request the Committee to allow him legal representation by a person who was not a member. Any such legal representation would be at the cos t of the affected member. The member opted to represent himself at the hearing although he had initially addressed correspondence to the Committee through his attorney, Denga Incorporated.

2. The notice of hearing and charges preferred against Mr Zwane were served on the member on 8 November 2023 . He was informed that the hearing would be held on 24 November 2023 . However, the hearing was initially postponed to 1 December 2023 . The hearing was further postponed f rom 22 January 2024 and f inally set for 30 January 2024 .

3. Furthermore, the member was notified that i f he wished to give an explanation after he had received the notices, he was f ree to do so either orally or in writing at the hearing.

4. The f i rst charge against Mr Zwane was as follows:

 

“ I t is alleged that you are guilty of contempt of Parliament in terms of section 13 ( c) and ( d) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 ( “ the Act”) in that, as a Member of Parliament you wilfully and intentionally failed and/ or refused to obey the resolution of the House at i ts sitting on 2 May 2023 to enter an apology as ordered . ”

 

5. The second charge against Mr Zwane was as follows:

“ I t is alleged that you are guilty of conduct constituting contempt of Parliament in terms of s ection 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 you wilfully and intentionally failed and/ or refused to obey the resolution of the House and order of the Speaker of the National Assembly to present yourself to the National Assembly at i ts sitting on 6 September 2023 and enter an apology as ordered. By engaging in such repetitive unlawful conduct, you were in breach of section 13 ( c) and ( d) of the Act and such conduct constitutes contempt of Parliament.”

 

D.Summary of evidence presented to the Committee

 

1. The initiator put the charges to Mr Zwane. He pleaded not guilty to all the charges preferred against him. In his plea explanation, he stated that he was notified on 2 May 2023 to present himself physically to Parliament and enter an apology in the House. However, at the airport, he was informed that his f l ight was delayed. Realising that he would not make i t in t ime for the sitting that day, he sent an SMS to certain Xoliswa, indicating that he would not be in t ime to enter an apology as directed by the House. He was present at the sitting the following day, but he was not called to apologise. He apologised profusely for causing any inconvenience to members and the House, and indicated that i t was not done intentionally.

2. After the charges were put to Mr Zwane, the initiator presented evidence concerning the charges . The initiator, in his evidence, stated that the Speaker had informed the member of the resolution of the House in relation to the penalties that were imposed against him. The f i rst penalty , dated 30 August 2023 , was that Mr Zwane should be f ined an amount of f ive days’ salary and suspension f rom parliamentary debates as well as to enter an apology in the House .

3. The initiator confirmed that Mr Zwane had fulfilled the f i rst and second penalties, but the outstanding penalty was in relation to his failure to apologize to the House .

4. The initiator noted that Mr Zwane was expected to present himself in the Assembly on 2 May 2023 to enter an apology to the House. Despite his commitment to do so, the Chief Whip of the Majority Party confirmed that he was absent f rom the House that day. Mr Zwane’ s conduct was considered to be unacceptable.

5. The initiator argued that Mr Zwane' s conduct was l inked to his blameworthy state, indicating he w as aware of his obligation to apologize to the Assembly and potentially face a reprimand.

6. The initiator presented evidence by way of the unrevised Hansard of the Assembly proceedings of 30 September 2023 . The evidence in question relates to count two of the charges, where Mr Zwane was not present in the House. The Chief Whip of the Majority Party states at page 30 :

 

" Hon Speaker, I am not hon Zwane. My name is P emmy Majodina, the Chief Whi p. Hon Zwane was here yesterday, knowing very well that h e was supposed to be here in this House today for the reprimand. I cannot account for h is whereabouts when he is not here in the House. I suggest that the Speaker f inds accordingly and act accordingly with the powers vested in you, thank you. "

 

7. The  Chief  Whip  of  the  Majority  Party  further  indicated  to  the House that she had a conversation with Mr Zwane the previous day, where he was advised to comply with the ruling of the Assembly.

" He knows he should be here, hon members, just to remind all of us that hon Zwane should have presented himself to the National Assembly in May, i f I am not making a mistake . Hon Zwane decided to stay away f rom Parliament without an apology and without informing the Chief Whip of the Majority Party."

8. The initiator’ s evidence was that, on the basis of what the Chief Whip of the Majority had said based on the unrevised Hansard, Mr Zwane was in Parliament and was made aware by the Chief Whip of the Majority Party that he had to tender an apology in the House on a stipulated date . However, without informing the Chief Whip of the Majority Party, he absented himself without tendering an apology.

9. The evidence of the initiator was that Mr Zwane was contemptuous by not abiding by the Rules of the Assembly and disregarding the decision of the House . The initiator was of the view that all elements of contempt had been established.

10. In his defence, Mr Zwane argued that on 5 September 2023 he was in Parliament and received news that his si ster was in the ICU in a Pietermaritzburg hospital. The hospital required the approval of a family member for his sister to have a blood infusion. As the only son and breadwinner of the family, he had to f ly home and take his mother to the hospital. He informed the whip of his committee about the matter but not the Chief Whip of the Majority Party with whom he had made the arrangement to present himself in the House on 6 September 2023 . When he returned f rom Pietermaritzburg, he wrote a letter to the Speaker, through his lawyer, offering an apology for not being present in the House to enter his apology, and offered to apologise at the next opportunity.

11. The initiator pointed out that Mr Z wane did not communicate with the Speaker after he had miss ed his f l ight in May 2023 and did not offer to apologise at an arranged t ime. Furthermore, he did not take i t upon himself to fulfil his obligation as required by the resolution of the House. Also, he did not engage his Chief Whip with whom he had made an arrangement to present himself to the House.

12. On 30 August 2023 , the Speaker again wrote to Mr Zwane, requesting that he arrange with the Chief Whip of the Majority Party a date for him to ente r an apology in the House. The date proposed by the Spea ker was 6 September 2023 . I t was noted that between May and August 2023 , four months after h e was supposed to have apologi sed in the House, he did not make any arrangement to enter an apolog y. On 5 September 2023 , he was in Parliament when he was informed about his sister ’ s condition but did not inform the Speaker or his Chief Whip . He simply decided not to attend the sitting without notifying the relevant offices.

E.Findings of the Committee

 

 

1) Having engaged with the eviden ce presented by the initiator, the Committee found the evidence presented p ersuasive in terms of the arguments and evidence put forward .

 

F.Aggravating and mitigating factors with respect to penalties

 

1. The Committee agreed that Mr Zwane be found guilty of the charges preferred against him.

2. With respect to aggravating factors, the initiator drew the attention of the Committee to the relevant provisions in the Act, namely, 12 ( 1 ) , 12 ( 3 ) , 12 ( 5 ) and 12 ( 9).

3. Section 12 ( 5 ) of the Act states:

 

“ When a House f inds a member guilty of contempt, the House may in addition to any other penalty to which the member is l iable under this Act or any other la w, impose anyone or more of the fol lowing penalties:

 

a) a formal warning;

b) a reprimand;

c) an order to apologise to Parliament or House or any person, in a manner determined by the House;

d) the withholding, for a specific period, of the member’ s r ight to the use or enjoyment of any specified facility provided to members by Parliament;

e) the removal, or the suspe nsion for a specified period, of the member f rom any Parli amentary position occupied by the member;

f) a f ine not exceeding the equivalent of one month’ s salary and allowances payable to the memb er concerned by virtue of the Remunera t ion of Public Office Bearers Act, 1998 ( Act No 20 of 1998 ) ; or

g) the suspension of the member, with or without remuneration, for a period not exceeding 30 days, whether or not the House, or any of i ts committees is scheduled to meet during that period.”

4. The initiator submitted that the charges of contempt of Parliament which Mr Zwane had been found guilty of was serious.

5. Mr Zwane undermined the authority of the National Assembly by refusing to obey i ts decision.

6. The initiator submitted that Mr Zwane’ s conduct warranted a penalty that was sufficiently serious. To this end, he recommended that the pen alty set out in section 12 ( 5 ) of the Act would be appropriate, i. e. a sanction to dock 50 percent of Mr Zwane’ s monthly salary and for him to take corrective measures and still enter an apology in the National Assembly by no later than 28 March 2024 .

7. Mr Zwane addressed the Committee and stated that i t ha d been clear f rom the onset that he was willing to enter the apology . He stated that i t had been his wish to enter an apology. On the proposal to dock his salary, he pleaded with the Committee that he must pay school fees for his kids and that he would suffer and that the sanction was harsh. He requested the Committee to relook at the sanctio n of docking half of his salary.

8. Mr Zwane provided the Committee with undated pictures placing him at his relative' s bedside , purporting to be in hospital when he was expected in Parliament to present his apology. Mr Zwane did not provide evidence to the Committee that his f l ight was delayed and therefore could not be present in the House on 6 September 2023 .

9. The Committee found the submission of the initiator persuasive and reached consensus that Mr Zwane must be ordered to apologise as spelt out by the initiator. With respect to the penalty of docking half of his salary, the Committee agreed by consensus with the sanction proposed by the initiator and resolved that the sanction would be effective f rom 1 March 2024 .

 

G.Recommendations to the House

 

 

Considering i ts f indings of guilt against Mr Zwane, the Committee recommends that the National Assembly impose the following penalties:

a) An order to enter the apology in the House as was agreed by the House on 2 May 2023 ; and

b) Reduction of half of his remuneration effective f rom 1 March 2024 as set out in section 12 ( 5 )( f ) of the Act.

 

Report to be considered.