Disciplinary Hearing concerning EFF disruptions at National Assembly sitting, 21 August 2014

Meeting report

Opening remarks
NOTE: The PMG Monitor was not present during the initial session of the hearing. This summary of the opening statements was compiled after consultation with various sources who were present at the time.

A summary was given of the background to the matter. On 21 August 2014, 20 out of the 25 EFF Members allegedly heckled President Jacob Zuma as he was answering questions during a sitting in the National Assembly, Parliament. Subsequently, these 20 Members were charged with misconduct by Parliament, and were called upon to appear before Parliament’s Powers and Privileges Committee for a hearing.  Cape Town attorney Mr Randall van Voore was the initiator of the proceedings. Mr van Voore read charges to the 20 EFF MPs, noting that they had been charged with contempt of Parliament.

According to various reports in the media, the Committee was faced with numerous delays before the actual hearing began; including a request from Ms S Khawula (EFF) that Parliament bring in 11 interpreters to cover all proceedings in all the official languages. The Committee was adjourned to look for interpreters. In support of this, the EFF leader, Mr J Malema, was cited as saying that EFF MPs wanted the initiator to address them in their mother tongue, because "their jobs and livelihood were on the line.” In addition, Mr M Ndlozi (EFF) requested that the inquiry be televised live on Parliament’s channel. Mr Ndlozi was also cited as arguing “you might want to slaughter us secretly, but we want people to see.” After much deliberation, the media was then allowed to sit in and cover the proceedings.

Mr van Voore then presented all EFF Members with the charges laid against them, starting with Mr F Shivambu, who had seven charges laid against him.

Discussion

The Chairperson thanked Mr Van Voore. He asked about the absence of Ms M Moonsamy.

Mr J Malema (EFF) said Ms Moonsamy was unable to attend the meeting because she was not feeling well. He relayed an apology and said a doctor’s note would be presented to the Committee. He explained that he would be making a representation on Ms Moonsamy’s behalf.

The Chairperson said Members who were present would have to make a decision on the absence of Ms Moonsamy from this hearing. 

Mr M Filtane (UDM) suggested that the Committee accept the apology, but added that it should be noted that whatever representation was made by Mr Malema on behalf of the absent Member should be taken “without prejudice” towards her or the Committee, because the Committee did not have a written undertaking by her that Mr Malema should speak on her behalf.

Mr M Mdakane (ANC) agreed with Mr Filtane.

The Chairperson said Members of the EFF understood the charges which were put to them. He noted that Mr Malema would be putting forward a presentation to the Committee.

Mr Mdakane said it should be noted that there was no parliamentary rule on how the matter should be handled, but added that in his opinion, it would do no harm to allow Mr Malema to make a presentation on behalf of a Member who was not present.

The Chairperson indicated that there seemed to be consensus among Members on the way forward. He indicated that Mr Malema would have three minutes to present his representation to the hearing. 

Mr Malema responded that the rule of three minutes applied only in the House, and in committees there was no limit set on how long a Member could speak. He read out the EFF’s representation to the Committee (see documents).

The Chairperson thanked Mr Malema for the presentation. He asked for clarity on the last sentence of the representation, which stated that, whatever the outcome of the process, the EFF would not be participating. 

Mr Malema clarified that this meant that the EFF would not be subjected to the process or to the African National Congress (ANC) and the reasons for this had been stated. He said the EFF believed that the process was illegitimate and unconstitutional, and for this reason the EFF reserved the right not to participate. If the remaining Members decided to proceed, they would be doing so on their own.

Mr Mdakane responded that this Committee was made up of Members of Parliament, who were mandated by the Rules of Parliament to do the work that they were doing, and that they were not mandated in this regard by any other person or party, but were fulfilling their Parliamentary duty. He said the Committee would then decide on how the proceedings would move forward.

The Chairperson agreed that it was important to stress that the Powers and Privileges Committee was not a ANC Committee, but it was a multi-party Committee. He proposed that the Committee adjourn in order to reflect on the representation made, because currently there was no rule which provided clarity on the specific incident. 

Mr Malema said Members of the EFF were now finished in their participation in the process, and they would be walking out.

The Chairperson said the Committee would adjourn for a couple of minutes while deliberating on a way forward.

At this point the EFF Members left the venue, and the hearing was adjourned.

On resumption of the hearing, the Chairperson reminded those present that prior to putting the charges to the EFF Members, a request had been made by Mr Malema that he be permitted to make representations. After discussion, it was indicated that a representation from Mr Malema, which would talk to the charges, would be welcomed. It was also understood that, after the Committee had heard those representations, the EFF Members would then be asked to plead to the charges. The charges had been put to them, Mr Malema had made representations, but the EFF Members had now walked out. According to the Parliamentary Rules (the Rules), those Members were now no longer in a position to make a plea, because of the walk-out. In these circumstances, the presiding officers were empowered to enter a “not guilty” plea in relation to all the EFF Members who were present at the start of the proceedings. 

He added that the Committee still needed to deliberate on the position of Ms Moonsamy, who had been absent from the proceedings altogether. The Committee was not sure whether she had actually mandated Mr Malema to speak on her behalf, and this was an issue that would have to be resolved. 

Mr Filtane said the Committee had accepted the representation made on behalf of Ms Moonsamy, without prejudice, as indicated earlier. He suggested that the Committee should simply await the presentation of a doctor's note by Ms Moonsamy, but if that Member still wanted to appear before the Committee to discuss her own position in relation to the disciplinary charges, then she should be afforded the opportunity to do so.

Mr M Booi (ANC) agreed with Mr Filtane that the apology relayed by Mr Malema on behalf of Ms Moonsamy should be accepted as it stood.

Mr Mdakane said the letter from the doctor should be presented to the Committee before the end of the day, pointing out that if a Member had deliberately stayed away from the hearing, this would be taken as undermining Parliament. The Committee should not accept the apology without a valid doctor's note.

Mr Filtane disagreed with Mr Mdakane, saying that since an apology had been forwarded to the Committee through her party leader, Mr Malema, it would be unfair to move away from that and place any further restrictions on her. 

Ms J Kilian (ANC) said the Chairperson needed to first ascertain whether his office had in fact received an apology from Ms Moonsamy, which would include the doctor's note.

The Chairperson confirmed that his office did not receive an apology independently from Ms Moonsamy.

Mr Mdakane reiterated that, according to the Rules of Parliament, an official apology needed to be relayed by a Member, through the Committee Secretary, to the Chairperson of the Committee. As matters stood, no such letter had been submitted to the Chairperson by Ms Moonsamy apologising for her absence. However she should be given the benefit of the doubt, and should forward the doctor's note before the end of the working day. He argued that the Rules of Parliament must be respected by all Members of the House.

Mr M Mncwango (IFP) said he was also of the view that the Committee needed to get a letter from the doctor which would confirm the excuse for Ms Moonsamy’s absence, because such letter was mentioned by Mr Malema during his presentation.

The Chairperson agreed that a doctor's note needed to be handed over to the Committee before the end of the day.

The Chairperson then asked Members to turn their attention to the presentation made by Mr Malema on behalf of the charged EFF Members, before those Members walked out.

Mr Booi said it needed to be made clear that there was no “walk out” as such and that the EFF Members left the hearing after the Chairperson had adjourned the hearing for a few minutes for deliberations. He noted that the Committee had accepted the EFF’s collective response.

Mr Booi said Members needed to take account of what Mr Malema had put before the Committee, in order to consider how to proceed. He said the Committee needed to look at all the points raised by Mr Malema during his submission, together with all the evidence on the events of the day, in order to reach  a conclusion.

Dr A Lotriet (DA) agreed that Members needed to reflect on the presentations made to the Committee.

Mr Filtane raised a point of order, and said it needed to be made clear that Mr Malema had been at pains to made the point that he was not representing EFF Members, but he was making a presentation.

Dr Lotriet asked for clarity on points 25 to 28 of Mr Malema’s presentation, which referred to the status of the Committee and whether it had authority to proceed on the hearing. The presentation indicated that Members of the Committee were "witnesses" and they also "participated in the misconduct", and the point was made that Members could not participate as judges in a matter in which they had also participated as witnesses.

Mr Mdakane said the presentation by Mr Malema was a broad political statement and some of the issues raised were not accompanied by any substantive facts or evidence. He suggested that it would be a good idea for the Committee to deal with all 89 points raised in Mr Malema’s presentation individually. In regard to the statement that the Powers and Privileges Committee was biased towards the ANC, he said it was common knowledge that every Member of Parliament must be part of a political party, because of the proportional representation system. The Committee therefore needed to continue to do the work which it was mandated to do, despite the absence of the EFF Members. Some of the allegations made against Members of the Committee needed to be looked into, provided that there was evidence to support those allegations. He proposed that the Committee deal with each of the relevant points made, and that those which were merely broad political statements need not be specifically considered.

The Chairperson agreed that it would be necessary to look at any evidence on the matters raised.

Mr Filtane agreed that the Committee should deal with Mr Malema’s presentation, because the Committee was entitled to accommodate it. The substantive matters that dealt with accusations against Members of other political parties would also be looked at in the process. He said that, apart from Mr Malema’s presentation being a broad political statement, it also raised a defence against the accusations made against EFF Members.

The Chairperson stated that the Committee should first agree on how to handle the statement given by Mr Malema.

Mr Filtane said the statements which defended the accusations made against the EFF Members should not be dealt with immediately, but rather the Committee needed to decide on how to deal with the statement as a representation of the views of the EFF.

Mr Booi said the accusation made by Mr Malema that Members who were presiding on the hearing were “the witnesses, the complainant, the prosecutor, the judge and the jury” placed Members of the Committee in a very difficult position, and could therefore not be ignored. This statement was particularly important and significant, because it called into play the principles of natural justice. Members of the Committee could only be witnesses to events that had been captured on Parliament’s audio visual records.

Mr Mncwango agreed that, as a first step forward, Members should go through Mr Malema’s submission, and identify those points that were considered as broad political statements, and then those issues which could have a negative impact on the procedures and processes of the Committee, so that these matters could be addressed. He said the counter-accusations that pointed fingers at some of the Members of the Powers and Privileges Committee and the Speaker of Parliament also needed to be investigated and taken into consideration. He said Members of the Committee needed to remain objective, and whatever accusations needed to be entertained should be discussed. He also suggested that some of the issues which would be addressed during the hearings should be considered sub judice, because involving the public in the discussions would place considerable difficulties on the hearing proceedings.

The Chairperson summarised that there seemed to be agreement that the submission by Mr Malema must be carefully considered. A suggestion had also been made that the Committee should, in addition, consider looking at all the evidence relating to the events of the day, so that Members could be better empowered as they moved forward. 

Mr Mncwango said the Committee needed to fully understand the charges put to the EFF Members. The Committee therefore needed to look at the evidence, in order for Members to be able to accurately reflect on the document presented and on what exactly took place on 21 August 2014. Members also needed to understand the relevance of the charges before them.

Mr Mdakane confirmed that this Committee was tasked with looking at what happened inside the National Assembly House on 21 August 2014 and thus whatever had happened outside of Parliament was not part of the Committee’s brief. He agreed that the Committee needed to look at the actual evidence, as this would provide Members with absolute clarity on the events under discussion. The 89 points outlined in Mr Malema’s representation could only be considered once Members had been able to see the audio-visual recording.

Advocate Frank Jenkins, Senior Legal Advisor, Parliament, spoke to the submission made by Mr Malema and said the procedure within the Committee needed to be reasonable and procedurally fair. The law allowed for the submission that had been made by Mr Malema. He said the Rules also allowed for an accused to call witnesses, who could testify under oath and be cross-examined. He advised the Committee, however, that this point no longer applied in respect of the document submitted, given that the author and the other EFF Members had walked out of the hearing, and that they had not formally submitted the representations as evidence, so his opinion was that the document could thus not be labelled as verifiable testimony and evidence. However the Committee did indeed need to pay attention to the representation.

The Chairperson thanked Advocate Jenkins for providing legal opinion, and adjourned the meeting for lunch.

On resumption of the meeting, the Chairperson reiterated the point that all Members in Parliament belonged to a political party, and from time to time; Members would have their own engagements with their political parties. However there were parliamentary systems that governed the work of Members within Parliament. These systems had been designed to produce certain results as required by Parliament. He made the point that, unlike the position in municipalities, there were no independent Members in Parliament. He urged Members to talk to the principles around evidence, and how it must be viewed in the context of the hearing. He made the point that any evidence as a continuation of the hearing had to be given under oath. If Members wanted to see the evidence simply for the purpose of informing themselves, then there was no need for an oath to be taken, and Members could proceed with viewing the video audio recording.

Mr Filtane said the Committee had made a concession to allow Mr Malema to make a presentation, and this was not necessarily covered by the procedural rules. He said that the initiator, Mr van Voore, had indicated that if Members viewed the video, this would be a procedural matter, because the value of that evidence had been qualified. He made the point that during legal processes, procedural issues could  be of assistance, or could cripple the process. He suggested that the Committee abide by the advice of the initiator, and what he was comfortable with, when leading the process. The audio0-visual recordings were supplementary evidence. Members were given the tapes a while back and they therefore had the duty to have a look at them individually, and he suggested that there was no need now for Members to look at these recordings again, particularly in view of the time factor.

Mr Mdakane said that in terms of Rule 141 Members were allowed to make a representation, and therefore the representation by Mr Malema could be covered under that rule. He said there was no doubt about the credibility of the Committee. On an individual basis, all EFF Members had accepted the charges  read to them and they accepted the Rules. He said the Committee was mandated by the Speaker of Parliament to deal with this matter and it was therefore incorrect to say the Committee was working under orders from the ANC. He felt there would be no harm in the Committee watching the videos, because this would not be any departure from the procedure currently under way.

Ms Kilian said that the most important point was that all EFF Members had heard the oral presentation of the charges, with the exception of Ms Moonsamy, and they had confirmed this with the Committee. Mr Malema made a request to the Committee that, as part of this process, he be permitted to make representations, even though there was no specific provision in the Rules for Members covering that point. She agreed that there would be no harm in watching the audio-visual recordings.

The Chairperson informed Members that Advocate Jenkins had produced written legal advice for Members which would be circulated.

Advocate Jenkins said the written legal advice was speaking to the representation made by Mr Malema, which had sought to provide an explanation on the charges against the EFF Members. The note reiterated that the representation by Mr Malema could not constitute evidence, for the reasons outlined by him earlier. There was currently no directive on when and how Members should deal with the representation. With regard to the legality of the procedure he said the question of the referral by the Speaker had been dealt with by the Western Cape High Court on Monday 29 September 2014. The urgent appeal by the EFF to halt the proceedings of this Committee was not upheld, and the Court decision had therefore confirmed that there was definitely a legal foundation for the Committee to proceed. In regard to the suggestions by the EFF around the bias of the Committee, he noted that his office had already also advised on this matter. The fact that a person could have made a comment outside of the Committee about the hearing proceedings did not automatically translate to a presumption of bias. 

Mr B Bongo (ANC) suggested that the initiator take charge with the proceedings and allow the video to be watched. He said the Committee should proceed despite the attempted interruptions.

Mr Mncwango agreed that the hearing needed to proceed. He asked that the initiator provide Members with clarity on issues pertaining to perceptions. He said if there were perceptions that the hearing would not be fair, this would certainly have an impact on the work of the Committee.

Mr Jenkins said perceptions played a very important part in feeding bias. However Parliament was an institution whose establishment was based on the principles of democracy and Committees were also therefore constituted around the principles of democracy as required by the Constitution. This meant that the majority party would have the majority representation in Committees. He said that perceptions might not always be reasonable.

Mr N Masondo (ANC) commented on the points made earlier in relation to natural justice. Some of the Members of this Committee were present in the House during the events of  21 August 2014 and so some were witnesses to these events. He asked whether this would hinder the fairness of the process.

The Chairperson told Mr Masondo that this matter had been addressed. He said Mr Masondo's statements seemed to suggest that those Members who were present in the House during the events of 21 August 2014 should not be part of the hearing currently under way, and this would be an impossible task. The Powers and Privileges Committee was an internal Committee of Parliament that dealt with matters relating to Members of Parliament. If all 400 Members of Parliament had been sitting in during the President’s responses, then this raised the question who would be the Members who could sit at the disciplinary hearing?. 

Mr Masondo said the initiator was supposed to lead the proceedings and not a Member of the Committee, and he suggested that the initiator should perhaps be chairing the proceedings, and asked if the Legal Advisers could assist on this point.

Mr Mdakane said the fact that all 400 Members of Parliament might have been in the House during the events under discussion did not mean that all 400 Members automatically stood accused of bias. The credibility of Members of Parliament should not be doubted. Any evidence against a particular individual MP would be considered. There was no need to hold unending discussion on this point.

The Chairperson asked that Mr van Voore lead the presentation of the evidence.

Mr van Voore agreed that the video footage should be played for Members, for purposes of contextualizing the issues and after that, the Committee would therefore consider and deliberate on what had transpired. The evidence which was prepared could be led on the following day. He warned that the full video footage was very long; but the relevant footage was around the 45 minute mark. He said there were other parts, on a separate clip, which the Committee would also be well-advised to have a look at. Copies of the two disks had been made available to each and every EFF Member who was facing disciplinary charges, as well as to the Members of the Committee. He explained that the clip showed that the Speaker allowed for the House to be adjourned for three minutes, allowing for Members to leave, but that the EFF Members refused to leave the House, and the Speaker subsequently adjourned the House indefinitely.

The relevant video footage was then played to the Committee. 

Ms Kilian said Members all had copies of the footage and there was no need to look at all this footage from start to finish in the meeting.

Mr Mdakane said everything should be looked at, so that the hearing could then be adjourned at a suitable point, allowing for the leading of evidence to begin on the following day.

Mr Filtane asked who had taken the footage. He raised a concern around the fact of a hand-held camera, pointing out that this raised the danger that the persons responsible for taking the footage could be selective in what they were recording.

The Chairperson said Mr Filtane’s concerns were noted. He pointed out, however, that even the fixed cameras inside the House were  operated by individuals.

Mr van Voore clarified that the footage was taken by Parliament’s Audio Visual Services unit.

Mr Mdakane said the videos were very useful. He suggested that the Committee adjourn at this point.

Mr Booi agreed that the Committee should adjourn now, and that evidence should be presented at a meeting on the following day.

Mr Filtane said the first day of the hearings was interesting and challenging. He disagreed with the suggestion that that the Committee should adjourn, saying that he was "as fresh as a daisy" and other Members could surely not argue that they were tired.

Ms Kilian asked whether the extra footage which was taken outside the Chamber, when the EFF Members were still inside, could be made available to Members.

Mr Bongo agreed that the Committee should adjourn for the day.

The Chairperson noted general consensus that the Committee adjourn until the following day, and adjourned the hearing.