NA: Unrevised hansard – 9 February 2023
The Powers and Privileges Committee dismissed an application by the Economic Freedom Fighters (EFF) to postpone their hearing on the State of the Nation Address (SONA) 2023 incident of 9 February 2023.
The SONA 2023 incident relates to six Members of the EFF: Mr Julius Malema, Mr Floyd Shivambu, Dr Mbuyiseni Ndlozi, Mr Marshall Dlamini, Mr Sinawo Tambo, and Mr Vuyani Pambo, who disregarded the ruling of the Speaker of the National Assembly ordering them to leave the Chamber. Instead of leaving, they crossed the floor and jumped onto the stage at Cape Town City Hall where President Cyril Ramaphosa was to deliver the SONA.
The Speaker had to suspend proceedings and called in the security services to remove them. All six EFF Members now face charges of conduct constituting contempt of Parliament in terms of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004.
Adv Tembeka Ngcukaitobi representing the six EFF Members, argued that although the individual Members of the Committee may not be biased, but the Committee could be perceived by a reasonable person to be biased by virtue of the fact that it is dominated by the ANC, which is a political opponent of the EFF.
He requested the Committee appoint an independent chairperson or a retired judge to conduct a fact-finding evaluation of the evidence against the Members. The postponement would therefore allay their concerns about its bias. Appointing a retired judge, senior advocate, or senior attorney to do the fact-finding will help “remove the stain of bias”.
He requested the hearing to be postponed until January or February 2024 to allow the legal team to prepare for the hearing as the time allowed was inadequate.
In rebuttal, Adv Anton Katz, the Initiator, argued that Rules 154 and 155 of the Rules of the National Assembly are clear on how the Powers and Privileges Committee should be constituted. “And unless and until those particular Rules have been declared invalid for whatever reason, this Committee is entitled to sit in the capacity it sits in, which is to give effect to Section 12 and 13 of the Powers, Privileges and Immunities Act of 2004.”
After the Committee declined the application for the appointment of a retired judge and the hearing postponement, EFF Members disagreed, recused their legal representatives and refused to be part of the hearings.
The Initiator then called the only witness – Secretary to the National Assembly, Mr Masibulele Xaso, who gave his account of what happened on that day.
The Committee will resume the hearing at 11:00 on 21 November.
The Chairperson indicated that the Committee’s meeting today and the next two days would be a hearing on the incident which had taken place on 9 February 2023 during the State of Nation Address (SONA). The Speaker of the National Assembly has referred the matter to this Committee for investigation and report.
She declared the hearing open.
The Initiator, Adv Anton Katz, summarised the event which had taken place on 9 February 2023 and requested permission to display the event on the projector. He proposed to the Chairperson to give the defendants’ attorney 30 minutes to present their side of the argument as to why the defendants believed that a postponement should be granted without interruption by Committee members. He will then provide his side of the argument as to why a postponement should not be granted in 30 minutes. Then the defendants’ legal team should be given ten minutes to reply to his argument. Thereafter, Committee members could address clarity-seeking questions to the respective legal teams.
Mr J Malema (EFF) raised a point of order. It is not the responsibility of the Initiator to instruct the Committee how the proceedings should be run. It is the responsibility of the Committee Chairperson to do that. He said that it is problematic that the Committee hires minorities to charge Africans. He accused the Committee of having done that in the case of the Public Protector and now a white man comes to the Committee to instruct the Committee on what it should be doing. In essence, Mr Malema refused to be prosecuted by a white man Initiator.
The Chairperson indicated to Mr Malema that his point of order was not sustained and instructed the proceeding to continue. She handed over to the defendants’ legal team and allotted thirty minutes for their submission.
Adv Tembeka Ngcukaitobi represented the defendants who were the six Members of Parliament: Mr J Malema (EFF), Mr Shivambu (EFF), Dr M Ndlozi (EFF), Mr V Pambo (EFF), Mr Dlamini (EFF) and S Tambo (EFF). Those six Members were in front of the Committee to answer for their alleged involvement in the disruption of the State of Nation Address (SONA) on 9 February 2023.
The defendants’ legal team brought forward two applications to the Committee.
The first application was for the Committee to appoint an independent chairperson who might either be a judge, a senior attorney or a senior advocate to conduct a fact-gathering enquiry. The matter would then be referred back to the Committee for final determination.
Adv Ngcukaitobi emphasised that the Committee is bound by the common law rule against bias. Although he did not accuse anyone of bias, he argued that the Chairperson cannot be a judge of their own cause. There should be no reasonable perception that the Chairperson may be biased against the EFF.
The Committee’s Chairperson is bound by s12 of the Powers and Privileges Act which obligated the Chairperson to ensure the procedural fairness and reasonability of the proceeding. The only way to ensure that is through the appointment of an independent chairperson.
According to section 1(c) of the Constitution, the Chairperson ought to act rationally. The only way to ensure that is through the appointment of an independent fact-finder.
The rule against bias is part of audi alteram partem which meant natural justice and contains two elements. The first element is that there should be a hearing for an affected party, which requirement the Committee has fulfilled. The second element is that the person who hears the matter should not be biased or reasonably be perceived as being biased. The problem arises that the Committee has 61% ANC Members and is now judging a matter that is related to the ANC’s political opponents, the EFF. Hence, the ANC holds enormous power over their opponents on a political issue. Although the incident was framed as disruption, what is clear is that there had been a protest against its political opponent, the President of South Africa, on 9 February 2023. The person that makes a judgement on this matter must not only be independent but also must be perceived as independent. He questioned if anyone, including the public, would perceive the current arrangement as devoid of bias. This issue is different from the debate of a bill where majoritarianism applies. This is an issue where political opponents of the ANC should be judged by the ANC and has severe consequences among the voters. More than 1 million people chose the EFF to represent them. The Constitution recognises the EFF MPs as opposition Members. If this proceeding were to continue in this fashion, the Committee would fall foul of its own majoritarianism rule and be unconstitutional.
Hence, the defendants requested for the matter to be handled by a neutral and independent chairperson to make the determination if those political opponents of the ANC are guilty of misconduct.
He raised the concern on the penalties that may be imposed from the Act of which the most drastic one is the suspension period of thirty days. Its implication is that the EFF leadership can be removed for 30 days. For any deliberation which may be SONA or of an important bill, a significant part of Parliament who was voted into Parliament by the public would not be able to participate. Hence, it is not only about the six affected Members but also about the millions that have voted them into office.
Adv Ngcukaitobi said that the defendants felt uncomfortable that due to the Chairperson’s party affiliation to the ANC that she would protect the President of the country who is also the party president of the ANC. The defendants did not see the harm to any parliamentary rule if the Committee appointed a judge to hear this matter.
It is procedurally unfair that the Committee should subject the top leadership of the EFF to a disciplinary hearing that is presided over by its own political opponent. MPs were witnesses to the 9 February SONA incident and were the ones that brought forward the charges. Those charges were not independently instituted and the Committee had also appointed its own Initiator. Although he did not question Adv Katz’s integrity, he urged the Committee to give his clients the same privilege as to appoint an independent and apolitical prosecutor and a judge. It is wrong in terms of the Constitution, common law and the statute that the Committee itself plays the roles of a judge, a prosecutor and a sheriff at the same time. He urged the Committee to appoint an independent chairperson in the same way that it had appointed Adv Katz.
The second application was for the proceeding to be postponed to a date or dates in January or February that would be suitable. He was under the impression that there was an undue delay on Parliament’s side to bring forward the charges. The charge sheet had been delivered on 7 November and scheduled for the matter to be heard from 20 to 22 November. The charge emanated from an incident which had happened on 9 February 2023. The defendants had not been given an explanation why it had taken Parliament ten months to bring forward those charges. The manner in which Parliament dealt with this, shows a lack of urgency. Thus, there is not sufficient motivation why the disciplinary hearing had to be dealt with today. This is an application that can be dealt with in January or February. Although the rule explicitly states that a five-day period should be granted to the affected parties to prepare for such hearings, nevertheless it would be unreasonable to expect the affected Members to be subjected to the hearing whilst it had taken Parliament itself ten months to bring forward the charges. It is grossly unfair.
Adv Ngcukaitobi stated that this is not a Stalingrad application. He informed the Committee that there is an application in the High Court against Parliament on 4 December that had been brought forward by another group of EFF MPs. In that application, it challenges the validity of the disciplinary proceedings against the EFF MPs as a result of the July 2022 incident. Those incidents in which EFF MPs were persistently being disciplined showed a common pattern which is the majority party persistently prosecutes its political opponents. If that application is found in favour of the EFF, then this Committee would not be able to sit in any event. The six affected Members also applied to join that application which was due to be heard on 4 December. One of the points which will be argued in court is the incorrect composition of the Committee.
Adv Ngcukaitobi said that there had been insufficient time for the defendants to prepare the case. It is unfair that Parliament has taken ten months to prepare the case whilst the defendants were only asking for a month.
One of the charges brought against his clients was intimidation against the President and Speaker. He thus asked to subpoena both the President and the Speaker on whether or not they felt threatened. An allegation of threatening is a subjective allegation which is similar to the provision in the Intimidation Act in 1982 in which section has recently been declared unconstitutional. Should this Committee be headed by an independent judge, it would be easy to subpoena the President and Speaker.
The video which has been shown is skewed and only shows a certain portion of the stage. There might be a different interpretation of the behaviour of the affected Members. Were they trying to get onto the stage or did they have a different objective? Could the President have felt threatened or was the allegation simply made up to bolster a non-existent case? He cautioned the Committee that should it insist on proceeding with the hearing, the decision would prevail due to its majority composition; but it would also be susceptible to judiciary review.
The Committee’s Initiator, Adv Anton Katz, made his submission.
Adv Katz rebutted the defendants’ argument on the validity of the composition of the Committee. The composition of Committee was established in accordance with Rule 154 of the National Assembly which is clear and unambiguous. The appointment procedures are set out in Rule 155 of the National Assembly. Unless and until those rules are declared invalid, this Committee is entitled to sit in whichever way it sits as it is derived from sections 12 and 13 of the Powers and Privileges Act, 2004. The composition of this Committee has been there for many years. Therefore there is no merit in the defendants’ argument and the Committee shall ignore the suggestion to appoint an independent person to chair the Committee.
Adv Katz objected to the defendants’ application for a postponement and called the application a form of abuse.
He had his written submission prepared and it has been emailed to the Committee Secretariat. In his opinion, there is no merit to the postponement application and the underlying basis which formed part of the application was sorely lacking in substance.
The hearing notice had been served on the six affected Members on the night of Tuesday 7 November. It was on Friday 10 November at 7.24pm that the defendants’ attorneys had drafted the response letter. In their response, certain points were raised such as the High Court litigation and the 640-page hearing bundle. He adequately responded to those points in his reply letter on Sunday. Almost all the pages in the hearing bundle are formal documents such as legislation and there is nothing new for the six affected Members to consider.
Adv Katz accused the defendants of classic Stalingrad behaviour.
He disagreed with the interpretation of 'threatening manner' as it should not be based on the subjective interpretation of the President or Speaker with the defendants’ legal team had put forward. What matters is the objective opinion which the Committee infers from the conduct of the six affected Members on 9 February 2023.
Adv Katz outlined a number of court precedents in which postponements had not been granted.
Adv Katz stated that no reference was made about the subpoena of the President or Speaker in the defendants’ correspondence. Further, the defendants do have the remedial options should they find the proceedings irregular.
[See document for further details of the submission]
Mr M Ndlozi (EFF) interrupted saying that the Initiator’s 30 minutes allotted time had expired.
Adv Katz disagreed saying that he had taken only 21 minutes as far as he was aware of.
Mr Malema interrupted Adv Katz and said that Mr Ndlozi was not talking to him. He accused the behaviour of Adv Katz as a typical form of white supremacy.
The Chairperson stated to Adv Katz that he was left with six minutes and instructed him to continue.
[The Initiator completed his submission]
The Chairperson asked if Committee members had a question for Adv Katz or the legal team of the affected Members.
Ms D Dlakude (ANC) welcomed both presentations. Committee members needed to clarify some points. This Committee is not made up of ANC Members because it had other party members as well. The rules of the National Assembly allowed any member of Parliament to participate in any Committees even if they are not permanent Members of those Committees. Parliament like any institution has its own arrangements and mechanisms….
Mr V Pambo (EFF) interjected and called for a point of order. He pointed out that Ms Dlakude should be adhering to the Chairperson’s instruction and ask clarity-seeking questions instead of patronising the six affected Members. He asked the Chairperson to stop sleeping on her job.
The Chairperson firmly rejected the claim that she was sleeping and said that she was also going to respond to that. She cautioned against the use of vulgar words and urged respect among Members from day one.
The Chairperson ruled Mr Pambo’s point of order sustained and that Ms Dlakude could not continue.
Adv Ngcukaitobi clarified his point on the composition of Committee. The Committee is currently dominated by the ANC and has a composition percentage of 61%. Any decision that it takes will have to be taken on the 50+1 percent principle. Based on that, he questioned if a reasonable person will believe that the EFF MPs including its Party President and Deputy President will receive a fair hearing under the circumstance. His point is by no way of suggesting that Members are dishonest but to point out that the whole set up can be misconstrued as politically biased. It is thus his view that the rules of bias must apply to this case.
Adv Ngcukaitobi said that the Committee Chair is bound by s12(3)(a) of the Powers and Privileges Act to enquire into the matter in accordance with a procedure that is reasonably fair. Hence, in his view, a retired and unbiased judge conducting an inquiry into the facts of who did what, fulfils that requirement. Upon reviewing the evidence, that judge can make findings and recommendations. Even Mr Katz has never said that the appointment of a judge would be unlawful. The perception of bias is as good as the actual bias.
Adv Ngcukaitobi described Rules 154 and 155 quoted by Adv Katz as irrelevant. The relevant rules are Rules 211, 212 and 214. The only issue which matters is who conducts the fact finding – if it is an independent judge or the political opponent of EFF. Rule 214 clearly states that the Committee should upon the completion of fact finding, table a report on its findings and recommendations. If it is found that a member is guilty of contempt or misconduct, the Committee has the power to recommend an appropriate penalty. 2(b) further empowers the Committee to make guilty findings. Hence, it is in the interest of fairness that an independent judge should be appointed to avoid the perception that the ANC is abusing its majority in Parliament. He questioned why Adv Katz has made no answer to that argument.
Adv Ngcukaitobi insisted on the appointment of an independent judge to chair the Committee and hear the case. In the case of the Public Protector, a judge was appointed.
The Chair interrupted Adv Ngcukaitobi and indicated that his time had expired. But she could give him three additional minutes to conclude his speech.
Adv Ngcukaitobi commented on the postponement and disagreed with Adv Katz’s view that it was too late for the postponement. The legal team had written a letter to Parliament on 10 November to request a postponement. The Office of the State Law Advisor replied to that letter and advised the legal team that it would be premature or amounting to abuse if the legal team approached the court without approaching the Power and Privileges Committee first.
Adv Ngcukaitobi said that it would be incorrect if the postponement application is rejected as the legal team had been advised to hold back by the State Attorney.
He disagreed with the word 'Stalingrad' that was used to describe his legal team’s strategy. The word cannot be used where an application is being made for the first time and if the defendants are committed to attending the hearing in a month's time. The difference between the Zuma case and this case is that the Zuma case was a criminal case and this is a parliamentary proceeding.
That brought an end to the submissions made by the defendants’ legal team and the Initiator.
Committee deliberation on postponement application
On a separate Zoom platform, the Chairperson opened the floor to Committee members to determine if the postponement should be granted to the application.
Prof A Lotriet (DA) was of the opinion that the postponement should not be granted. The Initiator was prepared and had provided all the reasoning why the postponement should not be granted. The affected Members have access to all the information. Hence, she would not support postponement. She asked the Committee also to be mindful of the approaching end of the Sixth Parliament.
Ms Z Majozi (IFP) endorsed this point and she would not support postponement. Sufficient time had been given to the defendants and all documents have been shared with the defendants.
She noted the inputs of the defendants’ attorney and pointed out that the Committee is not speaking about institutions of other state organs. This Committee exclusively deals with the conduct of MPs which would render it incorrect to follow the process of the Public Protector.
Ms Dlakude had heard both submissions and emphasised that this is a parliamentary process which is governed by the National Assembly Rules. This Committee has a responsibility to deal with its own internal arrangements. She agreed with previous speakers and rejected the suggestion of hiring an independent judge. This Committee has been dealing with these matters in this way ever since the Powers and Privileges of Parliament was adopted. Therefore, she did not support the postponement.
Dr M Tlhape (ANC) did not support the postponement and did not appreciate the defendants’ attorney reducing Members of this Committee to Members of the ANC.
Mr N Xaba (ANC) did not support the postponement and did not welcome the behaviour of affected Members and was critical of their mistreatment of the Chairperson.
Ms Van Der Walt (DA) supported Prof Lotriet’s position. She also called the tone of the affected MPs unacceptable.
The Chairperson concluded that the Committee’s decision on the application is that it will go ahead with the hearing and no postponement would be granted.
[The Committee returned to the hearing with the six affected MPs]
Announcement of decision on postponement application
The Chairperson announced to all parties in attendance that having carefully read and considered the application for postponement, the Committee has come to its decision that it would not grant the postponement and that the hearing should commence.
The Committee had noted the argument of the defendants that for the hearing to commence on 20 November 2023 will be unfair to the affected Members. The Committee has an obligation to conduct itself constitutionally and to conduct itself in a procedurally fair manner at all times. It is a requirement that is contained in s12(3) of the Power, Privileges and Immunities of Parliament and the Provincial Legislatures Act. This provision requires the Committee to enquire into the alleged conduct of contempt of parliament in a manner that is reasonable and procedurally fair. A person who applies for a postponement and indulgence must make out a case for the postponement. If the affected Members are dissatisfied with the manner in which the inquiry is conducted by the Committee, they may take whatever steps they deem appropriate after the Committee has tabled its report and findings to the House.
Having taken all factors into account, the Committee has not been persuaded that the inquiry will not be conducted in a reasonable and procedurally fair way. The affected Members have not made out a case for a postponement of their hearing in this circumstance. The Committee has decided that there is no factual or legal basis for it to be postponed and the inquiry should commence.
Mr Malema disagreed with that decision and pointed out that there should never be a refusal to grant postponement in any situation. He accused the Committee of bringing a white man to the Committee to prosecute Africans. It is known that every white man goes after the blood of black men. Adv Katz is a well-known DA lawyer.
The Chairperson requested the defendants not to get personal.
Mr Malema replied that the Chairperson cannot tell him what to say and affirmed that he was being personal about this. The Committee has brought an apartheid apologist and beneficiary to charge him. No white man can prosecute him or the EFF. The EFF is not going to participate in this because its outcome is pre-determined. Many of those people who are sitting in the Committee would not be back in Parliament after the election next year. He is confident that his EFF Members will be back in Parliament. He thus instructed the legal team to leave the venue and all affected Members departed from the virtual platform.
The Chairperson proceeded with the hearing and called on the Initiator to proceed.
Adv Ngcukaitobi requested the Committee to provide the transcripts of the deliberations to him and his legal team as he believed that a disjuncture ruling had just been given.
He also noted that the Committee did not deliberate on the ruling nor made a decision on the appointment of an independent judge.
He informed the Committee that the matter would be taken up at the Western Cape High Court.
Since Mr Malema excused him from the hearing, Adv Ngcukaitobi asked the Chairperson if he and his team would be permitted to leave the venue as in the absence of his clients, his team had no mandate to act on.
The Chairperson replied that it would be within his decision to make that choice and reiterated the Committee’s ruling.
Adv Ngcukaitobi clarified that he had asked only because he did not want to see the news headline tomorrow that the defendants’ legal team acted in contempt of Parliament or the Committee. He wanted some assurance from the Chairperson.
The Chairperson reiterated her ruling and requested the Initiator to bring forward the charges to the affected Members.
[Defendants’ legal team left the venue]
The Initiator noted what had just transpired and referred to item 7 of the Schedule that deals with the procedures of the Committee. It states that affected Members have the right to be present but they do not have to oblige. Since the affected Members had chosen to leave for the reasons they articulated, he advised the Committee to use the approach of a labour court case Futshane v Millard NO and Others (J1309/21)  ZALCJHB 432 (3 November 2021) on disciplinary hearings. He quoted paragraph 24 of the judgment:
‘The right to a fair hearing before one’s dismissal is indeed an integral part of our law. This right is explicitly recognised by the Act and has been restated in numerous decisions of this Court. However, once an employer institutes disciplinary action and gives the affected employee notice thereof, it is open to the employee to attend or to refuse to attend the enquiry. Should the employee refuse to attend the enquiry, such employee must be prepared to accept the consequences thereof, one of which is that the enquiry will proceed in his absence and adverse findings may be made.’
The Initiator noted that there was still one affected Member that remained on the platform and asked the Chairperson to make a ruling.
The Chairperson instructed the Secretariat to remove that Member from the platform.
Reading out of Charges
The Initiator stated the first charge was brought against Mr Malema. The preamble to the charges was read:
On 9 February 2023, there was a joint sitting of Parliament where the business of the day was the State of The Nation Address SONA by the president of the Republic of South Africa in terms of order paper JS2-2023 that joint sitting. it is a significant national event and was attended by Members of parliament, foreign dignitaries and the head of the judiciary. it was viewed through mainstream media and social media by millions of people in South Africa and the international community. During the joint sitting you as well as Mr. Shivambu, Mr Dlamini, Mr Tambo, Mr Pambo and Dr Ndlozi ascended on to the stage without the authority to do so and advanced toward the president of the Republic of South Africa and the presiding officers in a threatening manner. Your conduct as particular as above resulted in a suspension of the proceedings and your removal from the house by the security services of the Republic of South Africa.
Charge one: Contempt of Parliament
It is alleged that you are guilty of contempt of parliament in terms of ss13A and C read with section 7A and E of the Powers and Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 and the National Assembly rules 654 A and D, rules 69 A and F, in that as a member of parliament and during a joint sitting of the Houses of Parliament on 9 February 2023 at City Hall, a precinct of parliament in terms of section 21D of the Act, where the business of the day was the state of the nation addressed by the president of the Republic of South Africa, you deliberately created and took part in a serious disturbance disorder and disruption in the House and acted in a way which was seriously detrimental to the dignity, decorum and orderly procedure of the House by one acting with Mr. Shivambu, Mr. Pambo, Mr. Dlamini, Dr. Ndlozi and Mr. Tambo. You ascended onto the stage without the authority to do so and in a threatening manner approached the President of the Republic of South Africa and the presiding officers and had to be physically removed by security services of the Republic of South Africa resulting in a suspension of proceedings.
Those are the charges to Mr Malema.
In the absence of Mr Malema, the Chairperson indicated that he had pleaded not guilty.
The remaining preamble on the charges read similarly to the charges against Mr Malema.
It was noted that all affected Members had pleaded not guilty.
Testimony of Witness
The Initiator called the witness, Mr Masibulele Xaso, Secretary to the National Assembly.
The Chairperson read Rule 168 of the National Assembly Rules to the witness.
The witness took an oath that he would answer fully and satisfactorily all the questions.
The Initiator asked Mr Xaso to give an indication of his employment position and work history in Parliament.
Mr Masibulele Xaso, Secretary to the National Assembly, replied that he has been the Secretary to the National Assembly since 2013 and has been employed in Parliament since 1994. When he first joined Parliament, he started as a Committee clerk and had spent six years in that role. In 2002, he joined the National Assembly to deal with House proceedings. In 2005, he was appointed Under Secretary for House Plenaries. In 2013, he became the Secretary to the National Assembly and this is the tenth year that he is serving in that role. He has a qualification in law and public administration.
The Initiator asked Mr Xaso to give some details of his job functions as Secretary to the National Assembly, particularly in relation to the SONA joint sitting event which happened on 9 February 2023.
Mr Xaso explained that his role is as chief advisor on matters of parliamentary law/procedure. He gives advice on the Joint Rules in a joint sitting, ensures proceedings of the House are in accordance with the Rules and the Constitution and any applicable law.
The Initiator asked Mr Xaso if he had attended SONA events during his career.
Mr Xaso replied that he had attended SONA, specifically playing an advisory role since 2004. In 2005, he started to play a more direct role after he became under-secretary.
The Initiator asked Mr Xaso to provide the date and time of SONA in 2023.
Mr Xaso replied that the SONA 2023 had taken place on 9 February 2023 at 19:00.
The Initiator asked if he had a recollection of how long the proceeding had taken that evening.
Mr Xaso replied that the proceeding would usually have taken more than an hour.
The Initiator highlighted that a specific incident occurred on that evening and instructed the Committee administrative team to screen the YouTube video and asked the witness what he saw in the clip.
[Clip of EFF Members storming the stage was screened on the projector ]
The Initiator asked Mr Xaso what he remembered about that evening.
Mr Xaso recalled that a point of order was raised by Members. The Speaker subsequently ruled that it was a spurious point of order and dismissed that point. After persistent interjections and disruptive behaviour by some Members, the Speaker ordered certain Members to leave the chamber. Those Members initially refused to oblige. The Speaker invoked the Rule to ask the Sergeants-at-Arms to remove those Members. It was only then those Members started to leave the chamber. He initially thought that those Members were obliging the Speaker’s request and leaving the chamber until those six affected Members of the EFF stormed the stage. Some of them jumped onto the stage. He himself was on the stage when that happened.
The Initiator asked Mr Xaso if he could recognise those six Members from that evening.
Mr Xaso said yes as he worked with the Members and can recognise their faces to say the least.
The Initiator asked who else was on the stage at the moment those six Members ascended onto the stage.
Mr Xaso replied that on the stage were the Speaker of the National Assembly, the NCOP Chairperson, the President, Parliament’s support staff such as the Secretariat to Parliament, himself, Secretary to the NCOP, Procedural Advisor to the NCOP and a few other colleagues. There were Sergeants-at-Arms around the stage.
The Initiator stated that the Committee had heard this morning from the legal team of those six affected Members as to whether the test for a charge of threatening the President and the Presiding Officers is objective or subjective. As one could not tell what was on their minds, what inferences could Mr Xaso draw from the conduct, the body language, the timing and other surrounding circumstances of those who ascended onto the stage?
Mr Xaso replied that there is the element of order in which things are done in the proceedings of Parliament. A Member may only speak when they are recognised and may only go to the podium when called on. What happened in this instance is that Members were leaving from what he had observed. Then in a sudden change, some Members ascended onto the stage. It was unprecedented and certainly was not like calmly walking onto the stage. Even the latter would have been out of order. He was taken aback and felt unease. The Rules clearly state that in the event of violence or civil disruption, or the prospect of disruption, Parliament may suspend its proceedings. He thus believed that the Speaker took the right decision. In his view, what had happened on that evening was a disruption and the manner was disruptive and disorderly.
The Initiator asked if the President was the only person who was entitled to be on the stage at that time.
Mr Xaso replied that other than the presiding officers who he had mentioned, only the President was allowed to be on the stage.
The Initiator asked Mr Xaso if the President, the Speaker or any other role players on the podium at the time could have felt that they were being approached in a threatening manner. Would that have been a reasonable perception?
Mr Xaso replied that he was unsure what were on their minds as he could not speak for them. But what he could attest to was that the manner in which things had happened was unprecedented, disruptive, threatening. That was his impression.
The Initiator asked why the SONA event on 9 February 2023 had taken place in the City Hall of Cape Town. He asked if the City Hall had been designated to be a precinct of Parliament in terms of s2(1)(d) of the Act.
Mr Xaso explained that the National Assembly was not available at the time because it had been burnt down in the year prior. He then read s2 of the Act and confirmed that the City Hall constitutes the precinct of Parliament on that day.
The Initiator asked Mr Xaso once those six Members ascended to the stage, could SONA have continued regardless of that?
Mr Xaso replied that it could not, that is why it did not continue and that the proceeding was suspended. The Speaker viewed that as gravely disorderly behaviour. The rules are clear that once proceedings are suspended, the sitting could not continue and could only resume once order is restored.
That brought to an end to the witness’s testimony.
Committee Questions and Witness Response
The Chairperson asked if Committee members had questions for the witness.
Dr Tlhape asked Mr Xaso as the Secretary to the National Assembly, what inferences he could draw from the incident that took place on that evening.
Dr Tlhape noted that there were other dignitaries and members of the judiciary who had also been in attendance on that evening. What impact did this incident have on MPs and South Africans who were present or who had been watching SONA?
Mr Z Mlenzana (ANC) stated that his understanding of security is that the President and dignitaries have security personnel attached to them. Who was responsible to ensure their security within the precinct of Parliament, especially inside the chamber?
Ms Majozi asked Mr Xaso if something like this has ever happened before. If yes, how was that incident handled the last time? If no, had such happened before Mr Xaso joined Parliament?
Mr Xaso stated that SONA is convened in terms of section 84(2)(d) of the Constitution. The whole SONA event is hosted to uphold the principle of the executive’s accountability and Parliament’s oversight. It is also one such event that is not only attended by the executive but also the legislature and members of the judiciary. In addition, there are other dignitaries in attendance. Should SONA lapse, it would be detrimental to the accountability exercise and have a negative effect on Parliament’s constitutional functions.
Mr Xaso explained that section 3 of the Act empowers the Speaker and the NCOP Chairperson to exercise joint control in the chamber. They are empowered to call on security services and be responsible for the security in the chamber.
Mr Xaso replied that the incidents in the past were not the same as what happened on 9 February 2023. There have been instances of a similar nature such as in 2014 during a joint parliamentary session and in 2019 during the Public Enterprises budget vote some Members refused to allow the Minister to speak and later stormed the stage. There was also an incident in 2019 where some Members had held placards. But the 9 February 2023 SONA incident was one of its kind.
Mr Mlenzana asked if Mr Xaso believed that calling security services into the chamber was justifiable.
Mr Xaso replied that there are rules which make provision for the Speaker to call upon security services if there is a reasonable prospect of violence or serious disruption of proceedings taking place.
Ms Lotriet asked what comprises security services at the SONA event.
Mr Xaso replied that the security services were referenced in section 199 of the Constitution which included the defence force, police, intelligence services etc. There is also the internal Parliamentary Protection Services which is distinct from the police.
Ms Dlakude asked if this conduct of EFF Members negatively impacted on the decorum and dignity of the House.
Mr Xaso replied that any conduct by anyone that has a potential impact to prevent the House from performing its functions would be in violation of the privileges of the House. It is not only about the decorum. He highlighted that he was only explaining the application of Rules and that it is up to this Committee to determine the outcome as he cannot express an opinion.
That brought an end to the business of the day.
The Chairperson adjourned the meeting.
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