National Assembly 30 August 2022 incident: hearing Day 2

Meeting report

The meeting was delayed for 25 minutes due to technical issues. The Chairperson remarked on the difficulty to manage technology. He indicated that the Committee may proceed with the meeting which was the continuation of the previous day's hearing on the incident which had happened in the Parliament precinct on 30 August 2022.

The Chairperson laid out the agenda of the hearing and noted that the affected Members were represented by Adv Mfesane Ka-Siboto. The Initiator was Adv Tanya Golden SC. He gave Adv Ka-Siboto fifteen minutes to continue and conclude the cross examination.

Cross examination of Mr Xaso by Legal Counsel of the affected Members
Adv Ka-Siboto: Good morning, Mr Xaso. When I put questions to you yesterday, you will recall the discussion around the question of… the proposition I put to you was that one can't be found guilty of contempt without proving an element of intent. Do you recall that question?

Mr Xaso: Yes, I do.

Adv Ka-Siboto: Do you recall what your answer to me was?

Mr Xaso: I may have said something like the Committee will make that determination but I'm happy to be reminded.

Adv Ka-Siboto: Yes, and then I asked you as well whether you accept that intention is a requirement to prove contempt. Do you remember what the answer was to that particular question?

Mr Xaso: I may have said something similar to what I've said now, but as I say I'm willing to be reminded.

Adv Ka-Siboto: I don't want to misrepresent what you said. I'll give you an opportunity at again and I'll tell you why. I was concerned about your answer to me because you are the legal advisor to this House and to the Speaker and to the application of the rules and your answer to me to that question bothered me…

Adv Golden: Sorry Chair.

Chairperson: Yes, Initiator.

Adv Golden: May I just object and clarify something? Mr Xaso is not legal advisor to the National Assembly or to the Speaker. My learned friend erroneously put that to him, and that is not correct.

Adv Ka-Siboto: Mr Xaso, who do you advise?

Mr Xaso: I advise the Speaker on matters of rules, parliamentary procedure.

Adv Ka-Siboto: So you advise on the rules which is a subject matter here.

Mr Xaso: Yes, but I'm not a legal adviser to the Speaker.

Adv Ka-Siboto: Yes, you advised the Speaker. I'm saying to you there's a concern for me…

Chairperson: Advocate, the interjection by the Initiator, I think it is in order. She has clarified that he is not a legal advisor to the Speaker and has outlined his role. So if you may proceed along those lines, it will assist us, please.

Adv Ka-Siboto: Thank you Chairperson, I withdraw my question and my insinuation and suggestion. Do you advise the Speaker?

Mr Xaso: Yes, I advise the Speaker.

Adv Ka-Siboto: So I use the word you’re a legal advisor to the Speaker. You are saying you advise the Speaker.

Mr Xaso: I advise the Speaker; but I think the point is important; I'm not …

Adv Ka-Siboto: Hold on, hold on, hold on, I'm asking the questions here. I'm directing where we're going. You are saying that your advise the Speaker, not now you’re a legal advisor. That's what you're saying.

Mr Xaso: Chairperson, I advise the Speaker on procedures.

Adv Ka-Siboto: Yes, so you have a role of advising the Speaker in relation to procedure.

Mr Xaso: Yes.

Adv Ka-Siboto: Yes, now we're back to where we are starting. It's of concern to me that you advised the Speaker and you do not know or aren't prepared to commit to what the test is. What my Members are charged with, do you have a comment for that?

Mr Xaso: Chairperson, the point I'm making is that, that will be for this Committee together with its legal advisers to deal with the matter. That’s my response.

Adv Golden: Chairperson, and may I also just and be given the opportunity to raise the following issue as well?

Chairperson: You are at liberty to do that Initiator.

Adv Golden: Thank you Chair. I did not want to unnecessarily interrupt my learned friend yesterday when he similarly posed the question to Mr Xaso about where intent was a requirement for contempt. He raises the issue again and I feel compelled to object now. Mr Xaso is correct. It's up to the Committee ultimately to determine whether the Members accused are guilty of contempt of Parliament and that is a test that the Committee must apply. First of all, the Committee must determine the test and the Committee must apply the test; but it's not up to Mr Xaso or any other witness for that matter to express a view on the legal test. Thank you Chair.

Chairperson: Thank you Initiator. Advocate of the affected Members, can you assist us by cross examining Mr Xaso as based on what he has witnessed and what he has observed during that particular day. That is the role of the Committee – who can make any determination. It will assist Members.

Adv Ka-Siboto: Thank you Chairperson, if I may, Mr Xaso testified that his role is to advise the Speaker. I specifically asked him if he advised the Speaker in relation to proceedings that happened on the 30th of August last year; his answer was yes. He went further than that, he says the reason the Speaker made this decision is because of the advice that "I give to the Speaker". All I'm simply saying and what I'm getting at is this the charge sheet that has been presented against my clients would have been informed by the advice that Mr Xaso would have given. And I'm saying on what basis then does he give the advice to charge my Members for wilful contempt if he does not understand the test of contempt. Now I can't get an answer to that out of Mr Xaso because he would have had the state of mind as to why he gave that advice. That's the point I'm simply trying to get. I accept your ruling and I will proceed and I do not want us to be delayed at this point; I just wanted to put that on record.

Adv Golden: Sorry Madam Chair with you leave, very briefly, I accept that my learned friend has accepted that he needs to move on and that I'm confident that he's accepted your ruling, but just for good order and for record purposes, it was not Mr Xaso's decision to charge the Members of Parliament for contempt.

Adv Ka-Siboto: Thank you Initiator and thank you Chair. We exhausted the point that ultimately the Speaker made the decisions yesterday, didn't we?

Mr Xaso: Yes.

Adv Ka-Siboto: So there was no dispute as to who made the decision because you confirmed yesterday that the Speaker makes a decision, you made advice, we exhausted that yesterday, didn't we?

Mr Xaso: Chairperson, we exhausted the fact that in the House, the Speaker makes decisions. Of course, I advise in the House. I think Chairperson it is important as the point has been made to distinguish between this Committee and the House. Thank you.

Adv Ka-Siboto: Thank you Mr Xaso, let me just take you to rule 77 if you've got access to it.

Mr Xaso: Yes, I do Chairperson.

Adv Ka-Siboto: I'm just going to read it into the record for your benefit and the benefit of this Committee and the Chairperson. The Rule is labelled Grave Disorder. It says in the event of grave disorder at a meeting, the presiding officer may adjourn the meeting, or may suspend the proceedings for a period to be stated by him or her. Your testimony yesterday was that because there was this disorder on the day and it was of concern to the Speaker; hence, she made the decisions she made. This was an option she could have gone for, isn't it?

Mr Xaso: Yes, she could have gone for this option if the situation had called for that, yes.

Adv Ka-Siboto: And in fact she has invoked this Rule before, hasn't she?

Mr Xaso: Yes, she has invoked the Rule.

Adv Ka-Siboto: Yes, so the instances where, if for one reason or the other, she wouldn't make a ruling on the spot and she wanted order in the House, she could have invoked that Rule, couldn't she?

Mr Xaso: Well she could have invoked the Rule if she felt at that point that she could not deal with the situation. But in this instance she felt that she could deal with the situation and she dealt with the situation.

Adv Ka-Siboto: No, see you are doing it again where you're speaking about the state of mind of the Speaker and you said to me specifically you can't speculate. Do you know for a fact that's what she was thinking at the time?

Mr Xaso: No because she did not invoke the Rule and that's what I can understand to have happened.

Adv Ka-Siboto: That's what you speculating, that's what I understand.

Adv Golden: Sorry Chair and really I don't want to constantly interrupt my learned friend but Chair, may I speak?

Chairperson: Yes.

Adv Golden: Thank you, see, and this is just to be fair to Mr Xaso as a witness. My learned friend posed a very specific question to Mr Xaso. Could she have invoked the Rule? Mr Xaso then responded as appropriately as what he could in the circumstances. Then my learned friend accused him of, “But how can you say that; you are now speaking to the state of mind of the Speaker?” But yet he poses the very question, could she have invoked the Rule? So that is not fair to the witness. Thank you.

Chairperson: Advocate, can we proceed and cross examine Mr Xaso on the evidence he gave before this hearing based on the footage and everything which happened which led to this hearing? It will assist the Members to be able to take a particular determination, rather than cross examine him as if he was a Speaker. Can we please follow the evidence he gave and cross examine him along those lines? Even myself I'm not a legal guru, I feel it is not fair to Mr Xaso because it seems as if Mr Xaso is now a Speaker and he must behave and act on behalf of this Speaker. He gave what he saw, he gave what everyone sees, so can you please assist the Committee by cross examining him on the evidence he gave in relation with the footage of what transpired during the 30th of August? Thank you.

Chair refused Mr Xaba (ANC) to make an input and told him that he would have own time to ask questions.

Ms V Mente (EFF) interrupted and indicated that the Chairperson cannot deny Mr Xaba’s input.

The Chairperson responded that this is not a National Assembly session.

Adv Ka-Siboto: Thank you Chairperson and I just want to place on record that as a matter of principle, I have difficulties with being told that I can only cross examine on evidence. That's not the standard for cross examination. But I take the ruling and I'll proceed on that basis. Mr Xaso, the Speaker could have invoked Rule 77 to deal with the issue, not so?

Mr Xaso: Chairperson, certainly because the Rule says the presiding officer may adjourn the sitting, so she could have.

Adv Ka-Siboto: So in other words, if she was concerned about the interactions between Mente MP and Mgweba MP and Dhlomo MP and if the allegation is that that caused disorder and she wanted order in the House, particularly in an instance where she has not established the facts of what Mente MP had said, she could have invoked the Rule as a matter of principle, not so?

Mr Xaso: My response to that is the Speaker could invoke the Rule if she makes that determination at any point when she believes that invoking the Rule is warranted.

Adv Ka-Siboto: Yes, thank you very much, Mr Xaso. If we can then go to rule 79, I will read the rule into the record and I'll start with 79(1). It says subject to rule 78 a member may speak only when recognised by the presiding officer during the proceeding of the House. Sub two says subject to 1, a member may draw attention of the presiding officer to a point of order or a question of privilege at any time. Do you accept that?

Mr Xaso: Yes, I accept that.

Adv Ka-Siboto: So it's a matter of principle there's no allocated session for points of order is there?

Mr Xaso: There is no allocated sessions for points of order; however, because I have to respond, you should not look at the Rules in isolation.

Adv Ka-Siboto: What I am getting at?

Mr Xaso: I have no idea.

Adv Ka-Siboto: Precisely, so that's why I always invite you to listen to my question and specifically answer my questions. What if what you're referring to has nothing to do with where I am going?

Mr Xaso: Chair I am responding to a question and I'm sure Advocate does not expect me to respond the way he wants me to respond. I respond to the question in the manner I believe is appropriate.

Adv Ka-Siboto: Oh that's fair enough and if that's the impression I created, then I withdraw. That's certainly not what I was suggesting. I therefore withdraw. So then subsection 2 says at any point you may raise a point of order, do you accept that?

Mr Xaso: Yes, I accept that.

Adv Ka-Siboto: In other words at any point Mr Ceza could have raised a point of order, isn't it?

Mr Xaso: At any point Mr Ceza could have raised a point of order, it is up to the Speaker whether to take that point or not.

Adv Ka-Siboto: But it is a matter of principle at any point you could have reason for a point of order.

Mr Xaso: The Member could raise a point of order and the Speaker is the one who must decide how to deal with that matter.

Adv Ka-Siboto: Yes, I want to take you to, and of course, we accepted yesterday that Mr Ceza attempted to raise a point of order multiple times; not once was he acknowledged by the Speaker. Do not qualify with reasons as to what informed the Speaker because then you're going to get into the debate of how you know. I’d rather you answer me directly. At no point did the Speaker acknowledge Mr Ceza MP.

Mr Xaso: At no point, for the record, was he acknowledged in terms of what you had asked for. But of course when you raise the point of order, Speaker attempted to listen to him.

Adv Ka-Siboto: Let's then move on to the question of – you would have been in one form or the other involved in advising the Speaker about these proceedings, not so?

Mr Xaso: Yes, I was in the House on the day and advised the Speaker.

Adv Ka-Siboto: Not only were you in the House the day after 30 August, there was a meeting convened to discuss this issue and a report was presented by the Speaker – stemmed from that meeting correct?

Mr Xaso: Report by the Speaker was presented to that meeting.

Adv Ka-Siboto: Yes, and it's that report that led to this charge, not so?

Mr Xaso: It is the action of Mr Ceza which was then part of the report that went to that Committee which the Committee dealt with. By the way, a multi-party committee deemed it should be referred to the Rules Committee which is again another multi party committee.

Adv Ka-Siboto: Yes, so the charges would have been informed by that report, isn't it

Mr Xaso: The Committee would have studied, this Committee and I think, Chair, there's another point that is important for me to make. The Speaker did not charge these Members. This Committee is the one that deemed it appropriate to charge the Members. All that the Speaker did was to rule in the House and to explain the circumstances that led her to rule in the manner that she did.

Adv Ka-Siboto: Yes, and I thank you for that. Yes, you're right and what would inform what charges are competent in terms of the Rules falls within your province, doesn't it?

Mr Xaso: No it falls within this Committee and I'm not involved in advising this Committee.

Adv Ka-Siboto: Let me rephrase the question. I'm saying as to whether a Member is in breach of the Rules. That falls within your province, isn't it?

Mr Xaso: Certainly yes.

Adv Ka-Siboto: That's what I'm getting at and if a charge is being brought against a Member, it's in your presence to assess whether there was a breach or not. I'm not talking about what processes should be undertaken as to which body should make a determination of whether guilty or not. I'm asking a different question which relates to your functions. I'm saying if your function is to advise on procedure and the Rules, then it surely must be within your province to advise as to whether those are in breach of rules or not, not so?

Mr Xaso: Chairperson, in the House, it is my duty to advise where there was a breach of the Rules or not which I do to the best of my ability.

Adv Ka-Siboto: I don't question that and I actually believe that as well. I'm saying then whether a Member is in wilful contempt is something that falls within your province, isn't it?

Mr Xaso: Sure, during proceedings of the House, the House does not make a determination on matters of contempt. That is important. It is for this when the Speaker refers a matter to this Committee, she refers the matter to say the Committee must make a determination, whether the issue presented by the Speaker constitutes contempt. It is therefore for this Committee, not the Speaker, to make a determination whether a matter constitutes contempt or not. In fact, these proceedings are just part of that process to make the determination.

Adv Ka-Siboto: I accept that. I'm asking you a different question. I'm saying to you. You advise on the Rules and procedures. The question of whether there was a breach of the Rules and procedure falls within your province as a matter of principle, yes or no?

Mr Xaso: Precisely it falls in my province.

Adv Ka-Siboto: Whether a Member of Parliament has breached a rule falls within your province, yes or no?

Mr Xaso: That is correct.

Adv Ka-Siboto: Chairperson,whether someone was in wilful breach of the rule falls within your province, yes or no?

Mr Xaso: Wilful breach falls within the province of this Committee.

Adv Ka-Siboto: No I'm saying the question of whether a Member, forget who you are advising, it's within your competency, whoever is asking you for advice because that's what you provide. Assume the proper person whom you report to asks you the question. The wilful breach here, that would be within your province to answer yes or no?

Mr Xaso: It would be within my province to answer the appropriate structure that must make the determination as to wilfulness. What I would advise is that the Member has breached the rule and then this structure must deal with the issue of wilfulness or otherwise.

Adv Ka-Siboto: OK now we are getting somewhere. You’re saying, it's within your province to advise whether there's a breach or not, correct? But it's not within your province to advise whether it's wilful or not?

Mr Xaso: It is within the province of this Committee to make that determination to assist the process. Rule 10 says a Member which wilfully fails to obey any rule or order or resolution may be found guilty of contempt of Parliament in terms of the Power and Privileges Act. Now it is this Committee that must interrogate that issue and decide whether this Act has been breached or not.

Adv Ka-Siboto: Is it within your province to advise whether a charge whose definitional element requires wilfulness, is sustainable or not?

Mr Xaso: It is not within my province to do that.

Adv Ka-Siboto: If someone asks you whether a Member is in contempt, you accept that you can advise that, yes, they're in contempt, yes or no?

Mr Xaso: No I don't advise, I would not, it would be improper for me to make that determination because it is for this process which is being followed here to make that determination.

Adv Ka-Siboto: So if the relevant person, let's assume, the Speaker takes the view that Mente MP breached the Rule, I must then evict her. You testified as much yesterday that there was a breach of the Rules which justified them being kicked out of the House, not so?

Mr Xaso: Yes, I did.

Adv Ka-Siboto: So in other words, your testimony yesterday was that Mente MP acted contemptuously, isn't it?

Adv Golden: Sorry Madam Chair, may I again object to this line of questioning? I thought that we had dealt with this previously when both my learned friend and I had engaged, through you Chair, on this very issue. The counsel for the affected Members is repeatedly asking Mr Xaso about intent and wilfulness and what his views are and whether it falls within his purview to make such a determination or to advise on whether there has been wilfulness. I don't know how many times I must object or how many times Mr Xaso must say that it does not fall within his purview to advise on contempt or wilfulness. It is for this Committee to make that determination. I ask through you, Chair, that you compel my learned friend to move on to the next issue.

Chairperson: Thank you Advocate, can we move, even the allocated 15 minutes is already gone, but I'm allowing you, can we have order please?

Adv Ka-Siboto: Thank you Chairperson. I suppose you've made a ruling without an opportunity for me to respond. Then I must place this on the record: if I'm to progress and move away from this line of questioning, then Mr Xaso must retract the evidence that my Members acted in contempt if you can make a ruling on that, Chair.

Adv Golden: Sorry through your Chair. Mr Xaso will not retract any of his evidence. I certainly do not recall him saying that the Members acted in contempt.

Chairperson: Advocate, can you proceed? You heard the Initiator.

Adv Ka-Siboto: Thank you Chairperson I will not persist with the line of questioning on the understanding that you never gave such evidence because to the best of my recollection, we asked what do you make of the behaviour of my clients. And to the best of my recollection, your response was they did breach and defied the Speaker. You might not have used the word and if I can just conclude the point please, if I can just make the point that it doesn't have to be the word 'contempt' that's being used, but if the conclusion is that there's contemptuous conduct by my Members then I must take you up on that conclusion. But if you're saying that that was not your testimony, then I accept that for what it is and then I'll move on. Do you understand that?

Adv Golden: I object to that very firmly. With respect to my learned friend, it's a nonsensical proposition that he is putting to Mr Xaso that even if Mr Xaso did not use the word 'contempt' to express himself whether the conduct of the affected Members were contemptuous of Parliament, but yet it can be inferred from what he said then I strongly object to that. That is plainly too different legal concepts and contempt is a legal concept that this Committee must determine. Thank you chair.

Chairperson: Thank you Initiator. Advocate, assist us because the responsibility of the Committee is to do what you're asking Mr Xaso. Can you ask him on evidence given yesterday based on the footage and the videos which we saw? Issues which relate to judgment should rest with the Committee. So I'm requesting to not subject him to that. It is the responsibility of this Committee to do that. Your 15 minutes is gone, I'm now giving you another 10 minutes. Let us proceed.

Adv Ka-Siboto: Thank you Chairperson. Mr Xaso , did my clients breach the Rules as a general proposition without getting into detail?

Mr Xaso: The Members did breach the Rules.

Adv Ka-Siboto: Did my Members act contemptuously of the House?

Mr Xaso: This Committee will make that determination; I can’t make that determination.

Adv Ka-Siboto: Thank you, let's move to another aspect. You obviously testified that you advised the House on procedure and the Rules. I won't ask you to confirm, you've confirmed at least three times. And it is a structure of this House that makes determination as to whether my clients acted contemptuously or not, not so?

Mr Xaso: Yes.

Adv Ka-Siboto: And it is the structure of the House you advise or the Parliament you advise that must decide whether to accept your evidence or not, not so?

Mr Xaso: Yes, it is yes.

Adv Ka-Siboto: I would suggest given that position that the structure of this Parliament which you advise must make a determination about the quality of evidence is untenable as a matter of principle, isn't it?

Mr Xaso: May I listen to that question again Chairperson?

Adv Ka-Siboto: I think the Initiator wants to come in.

Adv Golden: No, if my learned friend could just repeat that please.

Adv Ka-Siboto: Thank you I will repeat. You advise this Parliament on the question of procedure and the Rules. We’ve established that. It is the structure of this Parliament, being this Committee, that must decide the credibility, the merits and the demerits of your evidence, isn't it?

Mr Xaso: Yes, it is.

Adv Ka-Siboto: It's the same structure that falls under the bigger body being Parliament that you advise, isn't it ?

Mr Xaso: Yes, it is.

Adv Ka-Siboto: I'm putting a proposition to you now. That is untenable, isn't it?

Mr Xaso: I don't think it is untenable.

Adv Golden: Thank you Madam Chair. I think that that is a legal proposition and it's an argumentative proposition that my learned friend is put to Mr Xaso which is best kept and which is appropriate for legal argument, thank you.

Chairperson: Advocate, can you align yourself with what your learned friend is saying and assist the Committee in cross examining the witness because we are benefiting from those arguments, thank you.

Adv Ka-Siboto: Very well Chairperson, what I would have said, and will not ask to, I want to place it on record because I can preempt what the response would be, I'm putting it on the record because I think this is an appropriate space to raise the issue and I would not invite your comment because it's along the same lines. But I want to place on record that it is equally untenable that the structure of this Parliament appoints, through the state attorney, an Initiator, to prosecute Members of Parliament, calls this witness who advises this very same Parliament. Then ultimately the very structure that they advised, then makes a conclusion on your evidence. I'm suggesting that the irregularity extends beyond just you but the manner in which the initiation process itself runs.

I'll move on from that. The last point I want to raise is this, and with your indulgence here, I'm not sure if my 10 minutes are up or not, but I will be done, this is my last line of cross examination. If I can just take you to the charge, the wilfulness charge, that’s charge one. Charge one, it is alleged that you are guilty of conduct constituting contempt of Parliament in terms of section 13(a), (c) and (d) of the Act and that the Member of Parliament during the sitting of the National Assembly on 30 August 2022, you contravened section 7(a) and (b) of the Act read together with the National Assembly Rules in relation to those subsections. When during the proceedings, you inter alia wilfully and intentionally failed and or refused to comply with an instruction the Speaker to leave the National Assembly. I won't read the title of it but it reads in verbatim to Ceza and Mente that during the proceedings inter alia, you willfully and intentionally failed and or refused to comply with the instruction of the Speaker to leave the National Assembly. The point is this, Mr Xaso, I do not know what to make of the evidence you gave in chief in relation to why these two Members were instructed to leave the House. But as I understand the charge sheet, they were being charged for failing to leave the House, not so?

Mr Xaso: Comply with an instruction by the Speaker to leave the House, yes.

Adv Ka-Siboto: All you've done is rephrase my question to you. I want you to phrase it the way I'm phrasing it. If you don't understand it, ask me to repeat it. Don't change the nature of my questions.

Mr Xaso: Chairperson I am trying to be as faithful to the charge sheet as possible because I believe that is what the Advocate is asking me to respond to. The charge sheet says refuse to comply with an instruction by the Speaker to leave.

Adv Ka-Siboto: And that's the point I'm simply making – that they were told to leave the Assembly and they failed to comply with that instruction, not so?

Mr Xaso: Yes.

Adv Ka-Siboto: And I'm saying to you in the relation to Mente at least, this step would not have happened. In other words, she would not have refused to leave had she not been asked to leave, not so?

Adv Golden: Madam Chair, sorry I don't understand the question.

Chairperson: Advocate, can you clarify the question?

Adv Ka-Siboto: In deed, Chairperson, I am saying Ms Mente would not have refused to leave the House without being asked to leave the House.

Mr Xaso: Yes.

Adv Ka-Siboto: You can only leave the House if you've been directed by the Speaker to leave the House?

Mr Xaso: Under this circumstance, because let me just explain why I say that. Members come in and go out of the House at any point but under these circumstances you're supposed to leave the House when ordered by the Speaker to leave the House. Yes.

Adv Ka-Siboto: So Mente can’t have left the House without being asked to leave the House by the Speaker?

Mr Xaso: Yes.

Adv Ka-Siboto: I'm saying to you the Speaker can only ask a Member to leave the House lawfully, not so?

Mr Xaso: The Speaker can only ask the Member to leave the House when the Member, and according to the Speaker, has breached a rule.

Adv Ka-Siboto: So the Speaker can't ask someone to leave the House without legal basis, that's what I'm getting at.

Mr Xaso: Chairperson, the point I want to make is that the Speaker makes a determination for a Member to leave the House when the Speaker believes the Member has breached the Rules of the House.

Adv Ka-Siboto: And the Speaker can't exercise that power unlawfully.

Mr Xaso: Speaker does not…

Adv Golden: Sorry Madam Chair. Again, my learned friend is trying to extract from Mr Xaso a legal proposition which is best left for legal argument. Thank you Chair.

Chairperson: Advocate, can you assist us along those lines?

Adv Ka-Siboto: Thank you Chairperson. I understand the ruling to be I shouldn't proceed along these lines because I was ruled to not do so. The final remark is this then, Chairperson, perhaps it's not a remark; it's an invitation to Mr Xaso. And thank you for taking my questions and being patient with me. I'm inviting you the same way you were invited by the Initiator to respond to this proposition. It's not a question of asking to draw a legal conclusion. But in light of your seniority and, as I understand it, you have been in this Parliament since 1994 which is quite a distinctive achievement. Therefore I hope this Committee is going to take your opinion earnestly. In light of all the objections that we've raised, the conflicts that I think we've raised which will substantiate an argument, would you be invited to give advice as it is, would you in your province agree with me that there is certainly a bit to be done in terms of the Rules of Parliament, if the object of constitutionally exercising public powers by this Parliament is to be taken seriously? If something is to be done about the Rules to ensure the impartiality that we spoke about, mitigate against usage of public power to target political opponents using the Rules, introducing an element of independence in these procedures. Would you agree with me that is something to look into, without you expanding? But if you insist on expanding you can. I would have no further questions, Chairperson, and I thank you, chair, and I thank you, this House, for the opportunity.

Adv Golden: Before Mr Xaso responds, if I may through you, this is not an appropriate question for Mr Xaso or for this hearing. This hearing has been convened to test and to prosecute certain charges against the affected EFF Members. The legal issue for determination, which my learned friend raised with Mr Xaso, was the subject of the High Court interdict application which as we know was dismissed and which is still part of the Part B review application which was pending before the High Court for determination and it's best left for that forum to deal with this issue. Thank you Chair.

Chairperson: Thank you Initiator, thank you Advocate, thanks Mr Xaso, thanks honourable Members. We will now proceed. I will now invite the Initiator to cross-examine witnesses.

Cross examination of Mr Xaso by Initiator
Adv Golden: If a Member takes issue with a ruling that the Speaker has made, what is that Member’s remedy in terms of the Rules?

Mr Xaso: Chairperson I would like to go to Rule 92 of the National Assembly, the Ninth Edition. Sub Rule 11 says the presiding officer’s ruling on a point of order is final and binding and may not be challenged or questioned in the House. That's the first point of emphasis in the House. Sub Rule 12 says a Member who is aggrieved by presiding officer’s ruling on a point of order may subsequently in writing to the Speaker request that the principal subject matter of the ruling be referred to the Rules Committee. So that is the platform available to Members: write to the Speaker and the matter is then referred to the Rules Committee.

Adv Golden: May I just ask for your comment in terms of the Rule, if I'm not mistaken, 8 that deals with general rulings because the Speaker obviously makes rulings that is not just related to points of order, she may rule on other issues. What is the remedy then?

Mr Xaso: Yes, well firstly I must read Rule 8 so that hopefully I'll be able to answer your point then. That the Speaker must perform the functions that are provided for in these Rules and make Rules and applying and interpreting these Rules and directives. Members must comply with rulings of the presiding officer. A Member may request that the ruling be referred to the Rules Committee for consideration and report which is basically what I’ve referred to just now.

Adv Golden: Thank you. Then the last issue, I just want to go to the Hansard Unrevised transcription relating to Mr Ceza. Can we go to page 340 of Hansard? You will recall Mr Xaso that my learned friend cross examined you on the issue of Mr Ceza not being given an opportunity by the Speaker to raise a point of order. And there was a proposition put to you, or a suggestion put to you that the Speaker was unfair to Mr Ceza in that regard. But I want you please just to, with reference to this page, please tell the Committee what immediately preceded the Speaker’s instruction to Hon Ceza for him to leave the House. If one goes to the top of page 340.

Mr Xaso: Yes, page 340 but even before page 340 and just looking through from page 338, there was a matter raised by Hon Shivambu about people migrating to Namibia and the issue of Phala Phala basically. The Speaker even before this had said a question on Phala Phala is coming. Let me just state again for the record. There were six questions that day. There was a question on migration, was question number 1. There was a question on GBV, question number two. There was a question on issues of security. There was a question on social ills. And there was a question on Phala Phala which was question number 5. So the Speaker kept saying this thing. So before Hon Ceza spoke, the Speaker had made a point that this point has been dealt with and it's going to come. In other words, the issue is going to come later. Now Hon Ceza then speaks unrecognised by the Speaker, I won’t read unless you want me to read, it's in Page 330.

Adv Golden: If you could just read perhaps for the record what Mr Ceza says about Phala Phala?

Mr Xaso: "He must respond to the issues pertaining to the abuse and the abduction of women on Phala Phala farm, that is what is at the centre of what he should be responding to. Because in a country like this, we cannot when women are being killed and the President does that, as a first citizen of the country, and you are saying to us he must not be held accountable". So the point that I was making is that there was a question on Phala Phala but even before the question there was question that is coming as question number 2 which was dealing with issues of GBV. So we're not at that. So Speaker then says, will you please leave the House? So what you see here, because the rulings of the Speaker are final and Members must comply. Speaker had already ruled on the issue and it was final that we're not dealing with Phala Phala now and Members must comply with that ruling

Adv Golden: Mr Xaso, just to finish off this point, the transcript on page 340, what does it also show? Did the Speaker recognise Mr Ceza or did Mr Ceza speak on his own?

Mr Xaso: He spoke on his own.

Adv Golden: Thank you Madam Chair. That is the extent of our re-examination thank you.

Members’ questions to Witness
Mr Z Mlenzana (ANC) asked if the administration of Parliament had ensured that all MPs including the affected Members understand the Rules of the House, and to give more details on that.

Given Mr Xaso’s knowledge and experience, Mr Mlenzana asked if the Speaker's decision to evict the affected Members from the House was driven by her emotions or guided by both the House Rules and Mr Xaso’s advice.

Mr Mlenzana asked Mr Xaso if the Speaker’s action was informed by words or by deeds; if the eviction had been caused by what the Members had said or done or both. He asked Mr Xaso to demonstrate his understanding on the meaning of defiance or provocation in the context of the refusal of affected Members to take instructions from the presiding officers on that day. Can Mr Xaso demonstrate the meaning of contempt in the context of this hearing.

Prof Lotriet (DA) asked Mr Xaso who/which authority approves the Rules of the National Assembly and if those Rules are readily accessible to Members. Are MPs aware of those Rules, were they part of the training for MPs? She asked if the Rules Committee is a multi-party committee.

Ms D Dlakude (ANC) asked about the consequence in the Rules if a Member spoke without being recognised. Is there a rule in the Rules of the National Assembly which allows Members to challenge the ruling of the Speaker. What recourse do MPs have if they were not satisfied with the ruling of the Speaker.

Ms G Tseke (ANC) asked Mr Xaso if MPs could use spurious points of order in Rule 92 of the National Assembly to hold the executive or in this case the President of the country accountable. She asked if the conduct of the three affected EFF Members had a negative impact on the proceeding of the House on the day. She asked the process a Speaker must take before suspending a Member.

Dr M Tlhape (ANC) asked if the Speaker is obliged to be advised or whether the Speaker may make decisions according to her own judgement of the situation. Procedurally what would happen if the Speaker has ruled that she will not take any points of order as she believed those points of order were deliberately being used to cause disruption – whilst Members still persistently called for points of order. She asked procedurally what recourse the Speaker has if a Member speaks without being recognised.

Mr Xaso response
Mr Xaso responded that the administration of Parliament usually runs workshops to assist MPs on the understanding of the Rules when Members started in Parliament. Members have access to the Rules and the administration of Parliament is always there to help Members in terms of information and the application of the Rules, regardless of Members’ political party affiliation.

Mr Xaso replied on whether the Speaker’s decision to evict Members was driven by emotions. He could only reply to what he knew which is the National Assembly Rules. The proceeding should have started two minutes after the meditation session whereas in reality it only started eight minutes after that because there was a lot that happened.

Mr Xaso confirmed that the Speaker came to the decision of evicting Members from the chamber according to National Assembly Rule 70 based on Members’ behaviour and not by what the affected Members had said. He read aloud Rule 70.

On the definition of contempt, Mr Xaso referred to section 7 as well as other sections of the Powers and Privileges Act which speak of actions constituting contempt.

Mr Xaso responded that the House approves the Rules on the recommendation of the Rules Committee and which would have come from the Subcommittee on the Review of the Rules. The House is multi-party and its subcommittee is also multi-party. The Rules are not approved by the Speaker but by a multi-party forum of Parliament and are accessible to MPs. Those Rules are available to the general public as well. One simply has to Google search Rules of the National Assembly and the Rules would appear.

Mr Xaso stated that the Rule is very clear that Members may speak only when recognised by the Speaker. These Rules are there for maintenance of order to enable the House to function. If the Speaker asks a Member to leave the House, it is to maintain the order of the House in order to proceed. If that didn't happen and there was general defiance of the authority of the Speaker, there would be chaos in the House. That is why even the Constitution states that Members have freedom of speech, but that freedom of speech is subject to the rules and orders so order may be maintained. The higher purpose for the establishment of Parliament is to fulfil its constitutional mandate, representing people to make laws, exercising oversight over the executive, etc.

If a Member has a difficulty with the Speaker’s ruling, the Rules are clear that the rulings of the presiding officers may not be challenged in the House. The previous ruling on the point of order is final and binding and may not be challenged or questioned in the House. The ultimate purpose is that the House is there to function and serve the public’s interest.

if a Member has a difficulty with the ruling, the Rules Committee is there to deal with the matter. The Rules Committee is a multi-party forum.

Mr Xaso commented on a spurious point of order. The Rule is clear that no Member may raise a similar point of order when the presiding officer has ruled that it is not a point of order or that the Member is out of order. Members may not disrupt proceedings by raising points of order that do not comply with this Rule. Presiding officers would often get to a point of saying “I'm not going to take points of order now” when they make a determination that the points of order are being raised to disrupt proceedings. Ultimately, the presiding officers are there to preserve the order and the decorum of the House so that the House can be able to function.

Mr Xaso remarked that any negative conduct that defies the mechanisms and the Rules and the Powers and Privileges Act would have a negative effect on the functioning of the House.

Mr Xaso clarified that the Speaker does not suspend Members. The House has the ultimate authority to suspend Members. Alternately, if the Speaker orders Members to leave or to withdraw from the House, the order would have been informed by an act by a Member and that order does not just come out of the blue. It is acceptable for Members to leave the House if they feel strongly that a point that is being made is unacceptable to those Members. Such incidents happen all the time but leaving the House orderly would not disrupt the proceeding of the House.

Mr Xaso said that the Speaker does not always require advice as the Speaker is able to make decisions based on her own understanding of the Rules. The support staff will step in where the Speaker requires advice. It is the function of Parliament’s administration to provide that advice. In addition to that, the administration advises MPs on drafting correspondence and letters, etc.

Mr Xaso denied that he was expected to know what was on the Speaker’s mind. He was expected to know the Rules and advise the Speaker on how a matter could be responded to in terms of the Rules. It is within the Speaker’s discretion to decide if she would take or not take the advice.

Mr Xaso replied on whether a Member can ask a question at any given time. In a House proceeding, there are procedures, processes and rules that ought to be adhered to because they are meant to ensure that the business of the House is predictable and that people can prepare themselves. There is a standard process to move a motion and for everything else. If you have questions on the question paper, there will be a time for this question for the executive including the President. But the House cannot use the opportunity of a debate on a bill and turn it into a question session.

Members may always report to the Rules Committee which is a multiparty structure to review the decision of the House if they are not satisfied with a particular ruling. There are always forums where these can be reviewed.

Mr Xaba (ANC) indicated that the roles and responsibilities of all involved parties present are clearly outlined, so there was no need for the legal representative of the affected Members or the Initiator to keep on asking such questions. He described such tactics as delaying the hearing process. Everyone knows who Mr Xaso is and what his job entails.

Members were satisfied with Mr Xaso’s responses and there were no further questions

The Chairperson thanked Mr Xaso for refreshing Members’ memory of the Rules of Parliament.

Adv Ka-Siboto stated that he had listened to Mr Xaso’s responses and had some difficulty with his responses, especially those that were related to factual ones which he would have challenged had he been given an opportunity. He had thus requested that before he re-examined the witnesses, Members should ask those witness questions before he re-examined them. He sought Adv Golden’s input on that.

The Chairperson replied that the Committee was flexible and accommodating. She agreed to temporarily adjourn the meeting for ten minutes to allow that discussion to take place.

Ten-minute adjournment

After returning from the adjournment, Adv Golden indicated that she as the Initiator had no objection to the proposal Adv Ka-Siboto had made, that is, the questions from the Committee will follow cross-examination.

Adv Ka-Siboto said that before he cross-examines Ms Mente, he explicitly disputes the misconstrued perception that the court has ruled on some of the issues he had raised. It hasn't nor has it been asked to. Himself was not part of the team that was in court but his instructions are that all the court said was that these proceedings must proceed without giving reasons. There was no challenge that has been brought before this Committee. So the question as to whether the Speaker is supposed to be here or not has not been answered by any court. The question of whether this Committee is properly constituted has not been answered by any court. There is no validation of any decision that has been taken by this Committee from any court.

The Chairperson explained to Ms Mente that according to National Assembly Rule 186(8), a witness should take an oath. This rule was read out and Ms Mente took the oath.

Adjournment for lunch; Committee to return at 2pm

Cross examination of Ms Mente by legal counsel of affected Members

Adv Ka-Siboto: Good afternoon, Ms Mente.

Ms Mente: Good afternoon.

Adv Ka-Siboto: What I intend to do with you is to ask you questions that relate to 30th of August 2022. These are the proceedings we've been discussing since yesterday. Do you recall the day in question?

Ms Mente: I'd be lying if I say I recall in detail that day. It's been a year, so I may miss some of the things because there's a lot that I cannot really.

Adv Ka-Siboto: Yes, but by and large you remember the discussions that have been discussed since yesterday. Just by and large.

Ms Mente: Yes, when I see the video and some of the things, yes, I can recall.

Adv Ka-Siboto: Yes, and I'm glad you're saying once you've seen the video that you can recall. Because what was being discussed yesterday in relation to you specifically was you being asked to leave by the Speaker. Do you recall being asked to leave by the Speaker?

Ms Mente: Yes, I recall being asked by the Speaker, but also asking the Speaker for why.

Adv Ka-Siboto: Yes, so let's have a discussion around that. You're saying that you recall being asked to leave by the Speaker; you asked why. Why did you ask why you're being asked to leave?

Ms Mente: Yeah, because if the Speaker asks you to leave, it's always driven by whatever circumstance that you as a Member would have participated in. For that particular day, I cannot recall what I did; hence I asked the Speaker why are you saying I should leave the House.

Adv Ka-Siboto: So you're saying the Speaker asked you to leave the House and you do not know on what basis she was asking you to leave the House?

Ms Mente: Absolutely. If we look at the video, I am asking the Speaker what is it that she says I must withdraw.

Adv Ka-Siboto: Were you ever told at any point what it is that you were asked to withdraw?

Ms Mente: No, neither has the Speaker at any point come back to the House to deliver her verdict on the undertaking which she makes at the end of the video.

Adv Ka-Siboto: It's interesting you should say that. And you would have been observing the proceedings since yesterday. I took Mr Xaso through another instance which I don't think is in dispute. In fact, he confirmed that there is a Member of Parliament from the African National Congress party who had similarly… been asked to withdraw. Let me re-state that. The Speaker had asked the Member to confirm that what he's being accused of. Do you recall that?

Ms Mente: Yes.

Adv Ka-Siboto: And do you recall that Mr Dhlomo said "no, Speaker". To which the Speaker responded I will not make a ruling. Before I make a ruling, I will go and confirm with the Hansard.

Ms Mente: Yes, I do.

Adv Ka-Siboto: In other words, he was not asked to withdraw or because the Speaker did not know what he had said, what he is accused of, is that so?

Ms Mente: Absolutely correct. Ordinarily, if the Speaker did not hear what you said, that's what they always say, be it a chair or the Speaker, or whoever presides over the House. If they did not get to what was said, they always have to first go to Hansard and then come back to make a ruling.

Adv Ka-Siboto: Yes, I want your opinion on this. If the Speaker had taken the position that she had taken with Mr Dhlomo, if the Speaker admits the ruling she had made in relation to Mr Dhlomo, then she wouldn't have said withdraw, is it?

Ms Mente: Absolutely correct.

Adv Ka-Siboto: And then you would have come in…

Adv Golden: Sorry, Chair, I don't know whether the witness would be in the position to decide, to determine or to give an opinion on what the Speaker would or would not have done.

Adv Ka-Siboto: I think that's a fair objection. You won't have to make a ruling. I accept that objection. All I'm simply trying to get at is this and I'm soliciting your opinion on it. The Initiator had earlier suggested that you can't be in the mind of the Speaker and therefore you can't speak for what the Speaker would have done and I accept that similarly. With Mr Xaso, obviously, the same principle must apply when the Committee considers. What I'm simply getting at is Ms Mente, would there have been a reason for the Speaker to order you out of the House if you had not defied a ruling?

Ms Mente: At this point, Advocate, one would not even have to be asked to be out of the House if the Speaker had applied the ruling in the similar manner. She applied the rule on the ANC Member where she said she will refer to the Hansard and then come back to make a ruling. The plea of that day on the video, if you listen carefully to the video, is that there is context to what is being said. The Speaker did not then say, hey, then let's look at the context in a similar manner which the ANC Member had raised instead. I cannot remember what I said, Speaker, therefore, please refer to your Hansard – so there was no need for the Speaker to ask me to leave the House.

Adv Ka-Siboto: I don't think there is any factual inaccuracy. The simple point is that the Speaker is prepared to make a ruling on something she doesn't know. Now let's deal with this, this is the final point and this is the concluding remark I'm going to solicit from you. If I understand your evidence, you're saying if the Speaker had taken care to ascertain the facts before she asks you to do something, i.e. withdrawal, had she done that then she wouldn't have had to ask you to leave; she wouldn't have had to ask the security services to kick you out of the House had she from the start applied the same principle as to Dr Dhlomo. Is that what you're saying?

Ms Mente: Absolutely correct. The inconsistency in application of the law that governs the House by the Speaker on that day would not have applied to me – if you didn't apply it to…

Adv Golden: Just to object that was obviously a heavily leading question just for the record.

Adv Ka-Siboto: Since raising it for the record, Speaker, I presume you have made a note and perhaps it's something we'll take up in argument. Chair, that's the sum total of my examination. Thank you, Chair.

Cross-examination of Ms Mente by Initiator
Adv Golden: Thank you, Ms Mente. I shouldn't be long with you at all. The questions are actually very specific. I'm grateful for my learned friend for going directly to the issue. The issue that your Advocate raised with Mr Xaso was really an issue of fairness. Do you recall that?

Ms Mente: Yes, I recall the question.

Adv Golden: In respect of your case, your answer to the charges and all allegations, the only issue raised was one of fairness and that you were not treated fairly by the Speaker when she asked you to withdraw a statement or remark that you had made in the House. I've noted in your evidence in chief, you said you don't really recall what happened on the day in question; but when you looked at the video it kind of came back to you.

Adv Ka-Siboto: My apologies, just by way of correction in fairness to the witness, firstly, that's not the only issue, the issue of fairness. The other issue is whether the Speaker knows what she had said or not. So it's not just the inconsistent application of the principle, but the fact that she made her ruling on the basis of facts she doesn't have. Just in fairness to the witness.

Adv Golden: The issue that I have here was one of fairness really. I'll get to the issue of whether the Speaker knew or did not know what Ms Mente had said. So Ms Mente, what struck me from the video but also more from the Hansard transcription is that at no stage did you deny that you had made disturbing and/or threatening remarks to Ms Mgweba. I don't see that anywhere. Do you have a comment on that?

Ms Mente: Hmmm…Maybe we're watching two different videos. Because on that particular video, the opening remark is the threat came from that side to the Members, and I, in protection of the Members, had to do something. Whatever it is that was happening, it was not the fact of the matter which I don't recall.

Adv Golden: Ms Mente, when you go, and I will take you to the Hansard in just a moment; just in case you misunderstood me, in no way in the Hansard recording which is a verbatim transcription of the proceedings and what was said in the House on the 30th of August 2022, nowhere, not one word of a denial on your part when the Speaker confronts you about remarks that you made. Just for good order, let us go to the Hansard transcription. Let's go to page 387, the issue plays itself out over two or three pages. But let me take you through what I see happened here. Do you have the relevant page?

Ms Mente: Yes.

Adv Golden: Okay, so if you could just be with me as I go through this exercise, being mindful of the fact that you have admitted you don't really recall what happened. So when we go to page 387, well even before 387, the Hon Zulu is on her feet. She then conveys to the Speaker that two women in the House on either side, I accept her to mean that on the side of the ANC there was someone who made a remark and on the other side the EFF had made a remark. In other words, you had made disturbing and threatening and unbecoming remarks to each other that are not honourable. Zulu then got up on her feet to say to the Speaker, it's on page 380. Let me just read two sentences to you on page 384. Minister Zulu says what is actually very disturbing right now is that Members of the EFF in the front and Members on this side are actually going to the point of almost talking physical threats against each other. No, honourable Member, really, she continues on page 385, I'm not going to read the entire section. It is there for the Committee to see and she confirms that they have heard the physical threats that were made. Then when you fast forward to page 387, the Speaker then addresses you, Ms Mente, and Hon Mgweba – as we know is a Member of the ANC. She addresses both of you. In other words, it's an accurate statement to make that she reprimanded both of you. Do you agree with that? In the Hansard.

Ms Mente: I see what is in the Hansard, so what's the question about that?

Adv Golden: As I said, also given the fact that you don't remember, so I'm taking this issue as it played out in the House. And for the assistance of the Committee. On page 387, the Speaker reprimands both of you. She says Hon Mente, Hon Mgweba, with all due respect, I'm appealing to both of you to withdraw what you said to one another for the benefit of this House. What precedes that is that the Speaker then tells both of you that this was Women's Month, this is not how women behave and that you are supposed to be exemplary to the people of South Africa watching you live. At the bottom, Ms Mgweba says thank you very much, Speaker, I withdraw. So I am telling you, Ms Mente, that up until this point, the Speaker was absolutely fair when she treated you and Ms Mgweba equally. She did not finger you out, target only you. Do you have a comment on that?

Ms Mente: Except that you are reading the convenient clauses of this Hansard. You are not reading the Hansard that refers to me and the incident or whatever we call it in its entirety. Because the response, which is there on Hansard, I make is very clear on the context which the Speaker did not want to hear. So you can then say the Speaker was fair.

Adv Golden: I'm not finished yet what I am putting…

Ms Mente: I'm not going to agree.

Chairperson: Please give each other time for the benefit of the House. Hon Mente, allow her to speak and then you respond in that order, thank you.

Ms Mente: She must also not speak when I'm still answering.

Adv Golden: Ms Mente, so we will continue. That is up until page 387. So when we then go to 388. The Speaker says thank you very much and then she turns to you, and she says Hon Mente. You say, thank you very much, Speaker, I will not withdraw protecting my Members because you asked Dr Dhlomo. The Speaker then interjects, Ms Mente, you say again, no, you want the context to everything. The Speaker then tries to bring some order to you because from the video one could see that you were shouting at the Speaker and the Speaker was trying to calm you down. Again, you repeat, there is context. Then at the bottom you say to the Speaker you are not going to sit here and intimidate my Members. On page 389, you say it will never happen. The Speaker tries again to calm you down to restore some order and respect because the video will show that you continued to shout. Then you say further down the page, I want you to be clear, Speaker. The Speaker says I'm requesting you; it does not matter what happened. You say, no, it matters, it matters, it matters, Speaker. Then in the middle of the page, Ms Mente, you say, Speaker my Member was threatened by another Member and also threatened his children. Then I will go back to what you say. Secondly, she threatens my Member and I must sit here and be quiet when my Member… The Speaker says no. Hon Mente, it is not going to happen that my Members are threatened whilst I am here. Over the page, you again say it will never happen, it will never happen. In the middle of the page, you say I must sit here and fold my arms, I am not going to do that, I am not going to do it, Speaker. I'm not going to withdraw protecting my Members. So Ms Mente, in your engagement with the Speaker, not once do you deny making disturbing and or threatening remarks, not once. What do you say?

Ms Mente: I do not know what is threatening remarks in your context because the Hansard does not have record of what was threatening. So do not put words in my mouth! The context of what was threatening and what was not threatening is not there, even if the sequence of events as they play out have got what I said and was referred to in Hansard. When I am asking the Speaker to look into the context, she refuses to do it. There's nothing I can do about the inconsistencies. Let's also clarify one thing, let's not confuse passion with shouting. When you're passionate about doing something and saying it passionately, [it] must not, never, be confused for shouting. Because we're shouting, really?

Adv Golden: Ms Mente, I'm not going to get into a debate with you whether you shouted or screamed or whether you were disrespectful. The video clip that we showed yesterday speaks for itself. The Committee can look at it themselves.

Ms Mente: And you have already said it clear and shouting.

Adv Golden: Ms Mente, as I see it, you shouted. It's clear from the video. If I was wrong, I'm sure that your counsel will immediately object. But even if I am wrong, the Committee can make up their own mind from what they see and observe on the video. On page 392, please bear with me, it's just the last two or three pages. You then say in the middle, you did not hear us, you are being told. The Speaker then insists, Hon Mente, to please withdraw. "What must I withdraw, what must I withdraw?" The Speaker says Hon Mente please leave the House. "You say what must I withdraw". If you can't take the order, leave the House. It is my ruling Hon Member. It is my ruling, leave the House. Then I will get back to page 392, Ms Mente, just to close off this point on page 393, the Speaker says, I have ruled that Hon Mente should leave the House. Hon Mente, leave the House. The Speaker then says again please leave the House. If you can't withdraw, will you please leave the House? The Speaker then calls the Sergeant at Arms because you refused to obey the Speaker. On the next page, on page 394, she then asked the Sergeant at Arms to request the women's Parliamentary Protection Services to escort you out. You still refused to do that as the end of the page on page 394 shows: Hon Mente, please leave the House. Just to close off this point, let us go back to page 392, where you say: "What must I withdraw?" That is preceded by a remark to the Speaker where you say "You did not hear us". This is what I put to you Ms Mente, although you ask the Speaker what must I withdraw, you never at any stage tell her that you deny having made any type of remarks to Ms Mgweba. You would rather use this opportunistically because you know the Speaker did not hear both of you. What do you say to that?

Ms Mente: It's exactly for that reason that you ought to know yourself. If she did not hear it; if she was here in cross examination explaining at length at what point are the remarks that play themselves out in the House are being requested to be withdrawn. And once the Speaker is satisfied that whatever was said is unparliamentary, then they must be withdrawn. At that point, she didn't know what was said and what was being said at that point. I told the Speaker that in the context of it, go and hear what was the context of what was happening, so there was nothing for me to deny; more than that, the Speaker had to go and establish what was being said.

Adv Golden: Yes, so earlier on in the interaction when the Speaker addressed both you and Ms Mgweba, the Speaker and Ms Zulu pointed out threatening remarks, disturbing remarks at that juncture when that was said. Why didn't you then call a point of order and say to the Speaker that “I did not say that, I did not make any type of remark like that”. You did not tell her.

Ms Mente: It depends on how you want to understand it. But the fact that I told you to listen to the context of what was being said in the similar way when Ms Mkhaliphi stood on a point of order to report that the Member of the ANC was threatening her and she wanted to establish what was being said, she did not ask me what was being said, she just told me to withdraw.

Adv Golden: So…

Ms Mente: Can I finish?

Adv Golden: Yes, please, go ahead.

Ms Mente: So if you are looking at how the Speaker reacted to the point of order by Mkhaliphi against Mgweba and the point of order by Zulu against whatever was presumably said by me and Mgweba, the action thereof is different. The action was not of establishing what we said, the action was ultimatum withdraw whatever you said. I'm not interested in hearing it. That's not how to run a House.

Adv Golden: Ms Mente, again because you did not answer my question, why didn't you raise a point of order to rectify the Speaker and a follow-up question which you may answer together. Why did you yourself not ask the Speaker to check Hansard?

Ms Mente: For Hansard to be checked, the Member doesn’t have to directly ask the Speaker for Hansard. Once you explain to the Speaker that you look at the context of this, that means exactly that; go and establish what was the context of whether something, in fact, all these questions were asking, there's no Hansard to where it captured me saying anything. That should be enough for you to understand that there was nothing which I have said, there's nothing in the Hansard capturing what I have said which was offensive, neither unparliamentary. It should be informing your line of questioning rather than what was happening, me protecting myself from an illegal instruction of the Speaker.

Adv Golden: Ms Mente, what is very clear from Hansard, in particular, and also from the video clip evidence is that you were blatantly defiant when the Speaker tried to address you. You were utterly disrespectful to her and you disrespected her authority. What do you say to that?

Ms Mente: If you see that is disrespect when you do not know what was being said, then whatever informed position that you have taken is an unfair position itself. Because you ought to be informed by what is it that was offensive [which was] said by a Member. I have no obligation of standing out in the House and take illegal and unlawful instructions from the Speaker. The conduct of the Speaker on that particular day was very much illegal because she ought to have asked what is it that you have said, rather than giving an ultimatum of telling people not to say anything but withdraw. At some point she even says, I'm not quoting it verbatim, but she says something like, it's irrelevant if I know or I don't know, at this point I'm asking you to withdraw. You do not do that.

Adv Golden: So what is also clear from Hansard is that when you spoke to the Speaker, when you responded to her, you made it very clear to her that you were not going to keep quiet. You were not going to sit and keep quiet while Ms Mgweba was allegedly threatening you or a fellow EFF Member. That strongly suggests that you made the remarks that were threatening and disturbing.

Ms Mente: Where are those remarks? Because you cannot fabricate evidence yourself. Where are the remarks that I said? If you can point me to the remarks that have led to the Speaker to take such a decision, I will be happy. Because I have no recollection of me offending anyone. So where are the remarks because now you're making a case; you are actually suggesting that there are remarks that are made, where are they?

Adv Golden: So it seems to me and I must put this to you, because this is what I will argue, is that based on Hansard, you accepted that you made these remarks because you did not deny it.

Ms Mente: The fact that there is no denial and I've said this, do not conveniently read the Hansard. The reaction that is on Hansard is on the basis of protest when the Speaker asked me to withdraw something I did not say. At that point, Mr Dhlomo had already intimidated my Members, when he stood up to say he does not know what happened, and the Speaker said I will go to Hansard. What was stopping the Speaker from saying the same thing, OK there's context, therefore, let's go look for context and then come back and rule on it?

Adv Golden: This is only after the fact; but the transcription is a verbatim transcription as to what transpired in the House on the day. So this is a very accurate description of what was said and very importantly what was not said. So if it's your view, Ms Mente, that the Speaker acted illegally: why did you not invoke Rule 8 of the National Assembly Rules as a remedy?

Ms Mente: Number 1, you know you are speaking for someone whom you refuse to bring here. Unfortunately, once the Speaker makes an undertaking that "I'll listen to the Hansard and come back to the House" that ruling is binding. Therefore, the Speaker is supposed to have come back with it which she did not do. Conveniently you are not concerned with that, and you are jumping for a Rule that is not applicable when a person has made another undertaking which she did not follow through herself as Speaker. I think you must go back to the Rules of Parliament and understand the process and how it works. Number 2, the issue of the Rules and the law that applies to the House, my legal team is best placed to expand on how the law that governs the House works. What I'm dealing with right now is what is on Hansard verbatim from me and what I did not say which led to what you were reading. Number 3, what is being said as a protest is a build-up of something, an accusation made by a Member of the ANC which the Speaker took as a gospel truth and asked me to withdraw something which is not on Hansard. You also don't know what I said. You ought to be preoccupied about what is it exactly that the Member said because I can't find it on Hansard.

Adv Golden: Ms Mente, are you are you finished?

Ms Mente: Yes.

Adv Golden: So you didn't answer my question, but I will leave it at that. I will address it again during legal argument. But there was clearly a remedy available to you which you did not use or invoke. I must infer from that as I will argue that at the time that had happened on the 30th, you were not of the view that what the Speaker did was illegal or unlawful and that is what I will argue. Turning to just the last one or two questions and then I will finish my cross examination. When you refused to withdraw the remarks that you made, the Speaker asked you to leave, why did you not leave?

Ms Mente: Because I was being illegally removed. The Speaker had not told me what I said, what did I do? The Speaker ought to have said because we have done 1, 2, 3, 4, and 5, therefore we must leave the House. The Speaker did not tell me that.

Adv Golden: The Speaker made a ruling that both you and Ms Mgweba from the ANC had to withdraw your respective remarks. She had ruled and she had given you an instruction and you defied her, disrespected her as the Speaker of the House.

Ms Mente: Ruling based on what? Because that ruling was based on what I said, which the Speaker did not answer.

Adv Golden: This brings me to the previous question that I asked you which you didn't answer. If you had an issue with the lawfulness of what she did, and I'm only using your words, “it was illegal”, you said, there was a remedy that you could invoke which you didn't invoke. Instead, what you did, you did your own thing, you disrespected her and you refuse to leave the House.

Ms Mente: Once more I'm going to refer you to the legal team to deal with the issue of how the law in the House works. But one thing I'm going to answer is that irrespective of how you look at it for as long as there's no remarks made by me on Hansard, there was no basis for me to be asked to withdraw anything, and that should not have led to me being asked to vacate the House.

Adv Golden: So you didn't invoke Rule 92(12) which has to go to the Rules Committee, nor did you invoke Rule 8 which speaks on general rulings made by the Speaker. Instead you openly defied a ruling made by the Speaker. In that sense, you clearly contravened a rule with the result that the Speaker had no choice but to call the Sergeant at Arms to escort you out which you also refused. You refused to cooperate which means that you contravened another rule.

Ms Mente: I don't understand how you are asking a question of me not invoking a remedy in the House where there was no remedy for me to use. The only remedy I had was the Speaker to go and refer to Hansard. I'm not so sure then what else should I have done in the House for my protection as an elected Member to represent the people and as a whip of the organisation of the EFF to protect the Members that are under my custody at the time. I'm not so sure watching, what do you mean when you say I did not use and if there was a remedy that I had, I had no remedy. The Speaker gave me an ultimatum and didn't want to listen. Also for the record, when you are saying the Speaker was calm and all of that; the Speaker was not calm. The Speaker had already threatened the entire caucus of the EFF that they must stop speaking, it must not raise any point of order, where even the point of order which led us to where we are today was raised by an ANC Member. He was then allowed to speak when we were not allowed to speak; when we were not allowed to say anything in the House. From the Member of the ANC having said whatever she said, the Speaker then takes an ultimatum and say whatever you say is irrelevant at this point, just withdraw. Withdraw what? Even yourself you're making a case which is not informed by anything. Because the Hansard does not have any record of me saying anything else. All the videos you have watched of me raising point of orders, reading the Rule book and all of that, there's nothing that suggests that I threaten people. So I'm not so sure what you are referring to. I'm not so sure if maybe you are adding some other charges to all these frivolous charges that I'm charged with.

Adv Golden: So Ms Mente, all of what you were saying now, just it doesn't relate to the point at all. You suddenly are ignorant of the remedies in the Rules. Let me just read the Rule out to you because you seem to be perhaps ignorant or you conveniently disregarding your remedies. Rule 8 of the National Assembly Rules deals with rulings. I will jump straight to 8(3). It says the following: Members must comply with rulings made by presiding officers; a Member may request that the ruling be referred to the Rules Committee for consideration and report. There is your remedy.

Adv Ka-Siboto: Sorry, Chairperson, apologies to the Initiator as well. At this point, I must object Chair. Legal propositions are put to the witness over and over and over again. She had said it multiple times. I'm here to answer to the factual claims. This Committee is a fact-finding Committee. I was reprimanded when I was asking Mr Xaso to give an opinion about the lawfulness of what was done and I retracted the question. The same is being done to Ms Mente over and over again. I repeat. She's here to answer factual questions; not what she's entitled to in law, not whether she complied with the Rules or not. So I'm asking that that line of questioning…

Chairperson: Thank you, Advocate. Initiator, can we take that rule?

Adv Golden: Yes, thank you. I am very happy to be guided by the Committee but this is my response to the objection raised by my learned friend. At no stage whatsoever have I put a legal proposition to Ms Mente, nor have I asked her to comment on any legal proposition, nor have I invited her to give her legal opinion on any issue pertaining to this matter. The question is – as to the remedy, you will recall, was traversed with Mr Xaso in this evidence in chief, in cross examination, but it was a pertinent feature of his evidence. It was also an issue that Ms Mente had introduced, in her view, it is not my words, it was her words where she said that the Speaker was acting illegally. As a matter of evidence, as a matter of cross examination, I am entitled to probe that opinion with her. She raised it. And the second thing…

Chairperson: Thank you, Initiator. Can you proceed?

Adv Golden: Thank you. Ms Mente, this is my final proposition to you even if you disagreed with what the Speaker had ruled, it doesn't matter, you must respect the ruling and order of the Speaker. Your remedy is there for you to take it up at a later stage. But you directly contravened two further rules when you disrespected the authority of the Speaker when she asked you to leave.

Adv Ka-Siboto: Sorry again, Chairperson. I must interject again. As I understand, the Initiator is putting questions to the witness, it's happening again, where proposition after proposition after proposition is put to her without a question. That's arguing with the witness. I'd rather the questions solicit answers rather than arguing with the witness. I must respectfully object again, Chairperson.

Chairperson: Initiator, can you put a question?

Adv Golden: Sorry Chair. During cross examination, I am not only permitted to question the witness, to ask her direct questions, but I'm also permitted, as a matter of cross examination rules, to put propositions to the witness through her comments. I am not just confined to direct questions. My concluding questions, by the way, the propositions to Ms Mente were entirely appropriate because it goes to the essence of the charges against Ms Mente. In actual fact, it mimics to a large extent the wording of the charges. I am within my full right to put that proposition to her. Thank you Madam Chair.

Chairperson: Thank you, Initiator. Are you done?

Adv Golden: That is the end of my cross examination.

Chairperson: Thank you so much.

The Chairperson invited Adv Ka-Siboto to re-examine his witness.

Adv Ka-Siboto replied to the Chair that in his understanding, the Committee had agreed that procedurally he would only begin to re-examine his witnesses after Committee Members had put questions to those witnesses.

Adv Golden said that she had no objection to that proposed process. She did however emphasise that the re-examination of witnesses must be confined to the rules of re-examination and the scope of Committee questions must not be broadened.

Question to Ms Mente by Committee members
Ms Tseke said that Ms Mente fully understood the authority of the Speaker when presiding over House proceedings, if she fully understood the Rules of the National Assembly. She asked Ms Mente whether her behaviour on that day was in accordance with the decorum of the House.

She asked Ms Mente why she had not alerted the Speaker to what was happening and instead said that she was unapologetic about protecting EFF Members.

She wanted to know what happened between Ms Mente and Ms Mgweba on that day.

Ms Tseke asked Ms Mente, in her own opinion, whether a reasonable conclusion could be drawn that whatever she had said on that day was unparliamentary.

Ms Tseke asked how Ms Mente could persuade the hearing to find in Ms Mente’s favour given that she was not being up front with the Speaker on what had transpired on that day.

Ms Dlakude asked Ms Mente as a leader of EFF what had compelled her to challenge the ruling of the Speaker in the House instead following the relevant process if she was dissatisfied with the Speaker's ruling.

Ms Dlakude asked Ms Mente if it was acceptable for Members of EFF in the House to call for spurious points of order despite Speaker had clearly declined to recognise those points of order. As an EFF leader, how did the political party ensure that MPs would maintain the decorum of the House.

Mr Mlenzana assumed Ms Mente should understand the Rules of the House; he thus wanted to know if she always adheres to those rules.

He asked Ms Mente to demonstrate her understanding of the term 'defiance' and 'contempt' in relation to this incident.

Mr Xaba indicated his intention to question Ms Mente but could not do so due to poor network. The Chairperson thus requested him to type his question in the chat box.

Ms Mente’s response
Ms Mente clarified to the Committee that it was not up to the Speaker to prevent Members from speaking. The Speaker could have allowed the President to respond to Members’ questions. That has been the standard practice in the House.

Ms Mente said that the composition of this Committee and the privileges of Members could not be determined if it was the very same people that charged her. She did not think that there would be any way that her privileges and dignity would be restored by the same people whose Speaker had filed this frivolous case against her.

Mr Mlenzana noted Ms Mente’s responses but pointed out that she had deliberately veered off the hearing to the Rule of the House. She defied the House in contempt for whichever reason. He thus asked for Ms Mente’s comment.

Ms Mente replied that there was nothing to comment on because it was a foregone conclusion.

Ms Tseke indicated that Ms Mente had not responded to any of Members’ questions. Despite that, the Committee would be able to make a determination from her response.

She asked Ms Mente as the leader of the EFF, whether she utilized the Rules of the National Assembly. If so, what does she do with Rules 154 and 211?

Ms Mente reiterated that she was here to answer what has been captured on Hansard and what she has been charged. She directed the Rules question to her legal team. She has indicated that it takes two to tangle. If she was being questioned for the context upon which she did what she had done, the Speaker must also be subjected to the same process to unpack the context. She noted Members’ questions were similar; there was nothing new in their questions.

The Chairperson invited Adv Ka-Siboto to re-examine the witnesses. The 15-minute Rule applied.

Re-examination of Ms Mente
Adv Ka-Siboto clarified that he was not questioning the composition of the Committee but rather stating that the composition of the Committee should not be that way. That case would be contested in court next year.

He proceeded to re-examine Ms Mente.

Adv Ka-Siboto: Thank you, Ms Mente. The Chairperson is saying that we've got 15 minutes. I'm going to move quite speedily and I'm going to ask you, if you don't mind unless you feel strongly, just answer me directly, so that I'm able to put all these questions to you. I only have been allocated 15 minutes. So I'm saying to you, do you recall that you did not deny making the impugned statements, do you recall that?

Ms Mente: Yes.

Adv Ka-Siboto: Is there any way which shows you admitting making the impugned statements?

Ms Mente: No.

Adv Ka-Siboto: If anything, what appears on the Hansard and undisputed is you asked at least three times, "what must I withdraw". You recall that.

Ms Mente: Yes, that's correct.

Adv Ka-Siboto: You asking what must I withdraw, what does that imply?

Ms Mente: It implies that the Speaker must then refer to her part to ascertain exactly what was said

Adv Ka-Siboto: Does this suggest you're admitting anything?

Adv Golden: Sorry, objection. I think Chairperson, even my learned friend will agree with me that was a leading question. You are not permitted to ask leading questions during re-examination. You are suggesting the answers to Ms Mente and I object to that.

Adv Ka-Siboto: Let me see. I'll ask the question again and digest it from the perspective of the Initiator and see if I agree. Ms Mente, does the answer that you gave “what must I withdraw” indicate you admitting anything? You still have an objection to that?

Adv Golden: Yes, definitely. You are suggesting the answer to her.

Adv Ka-Siboto: I'll move on, Chairperson. The second point I want to ask Ms Mente, is the charge sheet refers to a disturbing and volatile exchange of remarks or you are accused of exchanging remarks that are disturbing and volatile. Do you recall that?

Ms Mente: Yes, I recall that. But also in the previous question which I have also answered to the Initiator, there is no way where I've admitted that I've said something. I've also clarified to the Initiator during cross questioning that the Speaker must look at the context. The fact that I say "what is it that I must withdraw"; it means that I do not know what I must withdraw and what I said. Therefore, the Speaker must go and ascertain; and that has been the same answer to her.

Adv Ka-Siboto: Yes, would you say it is an important dispute of fact as to what it is that you said?

Ms Mente: Absolutely.

Adv Ka-Siboto: And you've been at accused of not making follow-ups about certain aspects, do you recall that?

Ms Mente: Yes.

Adv Ka-Siboto: Given how important a dispute of fact this is, do you know if any structure of this House or that Speaker or anyone for that matter went and followed up with Hon Zulu as to what it is that she heard, do you know?

Ms Mente: No, there was no such investigation according to me, neither is it in the bundle that is they used to charge me.

Adv Ka-Siboto: So let me understand, you are saying, to the best of your knowledge, no one despite you being charged, no one from this Parliament has ever asked you what it is that you had said?

Ms Mente: I've never been asked for any information besides when I received the charge sheet charging me for something that happened a year ago and not being furnished with the reasons why this Speaker did not come back with her undertaking before she can go and file a report.

Adv Ka-Siboto: Were you ever told why no one has asked you or Hon Zulu or Hon Mgweba what was being exchanged with you? Ever told why that question was never followed up on?

Ms Mente: No.

Adv Ka-Siboto: Let's move to the next part. And of course, you know they have not been called as witnesses here either. You know this, not so?

Ms Mente: Yes.

Adv Ka-Siboto: In other words, we still don't have their versions even when they had an option to call a witness, not so?

Ms Mente: Absolutely.

Adv Ka-Siboto: Let's move to the second aspect of what I want to ask you. You were cross examined extensively about the fairness of how you were treated, you recall that?

Ms Mente: Yes.

Adv Ka-Siboto: In fact, you suggested that the Speaker did not even care about what the facts were, and you did not refer to the Hansard, but that's the answer you gave, do you recall that?

Ms Mente: Yes.

Adv Ka-Siboto: If you go to the second last paragraph [on page] 389 of the Hansard, the Speaker, that is, in fact, this is what you say. First, I want you to be clear, Speaker. I want you to know and there's you making that point. The Speaker interjects and she says I'm requesting you; it does not matter what happened now. Is that what you're referring to?

Ms Mente: Absolutely.

Adv Ka-Siboto: In other words, the Speaker did not care to find out what the facts were before she asked you to withdraw?

Ms Mente: Yeah, she had made up her mind. She just gave me an ultimatum.

Adv Ka-Siboto: Thank you. Let's then move on to the third aspect I want to deal with. You were also told that the same treatment that you got from the Speaker is the same one that Mgweba MP got, not so?

Ms Mente: Come again, my network is better.

Adv Ka-Siboto: OK yes, Ms Mente, I'm saying earlier on, you were told that the same treatment that you were given was given to Mgweba MP as well, do you recall that?

Ms Mente: Yes.

Adv Ka-Siboto: We're told that there's stacks and stacks of boxes and some boxes. Do you recall that?

Ms Mente: Absolutely yes.

Adv Ka-Siboto: You're also told that you've received training around these Rules, you recall that?

Ms Mente: Yes.

Adv Ka-Siboto: In that training that you have finished, were you told that if a Speaker takes an unlawful, unfair decision as you see it in respect of one Member, it then necessarily makes it lawful and fair to do the same to another Member, was that part of your training?

Ms Mente: Yeah.

Adv Ka-Siboto: I will rephrase the question. Does the conduct of the Speaker, being unlawful, if you're being unlawful and she addresses it to one Member of Parliament, does that then mean she can unlawfully and unfairly treat another Member? In this instance, you?

Ms Mente: No, and in fact if I may just expand a little bit. Sorry. When Mr Xaso was giving evidence, he mentioned that – I think more than two times – every time a Speaker says something or makes a ruling is based on the facts that she would have ascertained and on the matters that have taken place / transpired right before her own eyes and she will rule on it.

Adv Ka-Siboto: Yes, and you're suggesting that did not happen in your case.

Ms Mente: It did not happen in my case because there is no way on Hansard where I'm offending or saying anything unparliamentary which then leads up to what is being used to charge me now. Whereas [in fact] I was protesting to say what is it that I must withdraw, because I did not say anything. I don't remember saying anything.

Adv Ka-Siboto: So then I ask you this as I round off this theme of questioning. The Speaker asked Ms Mgweba to withdraw a statement and she did. The fact that Ms Mgweba retracted, in relation to you, what does that matter? In other words, what does it matter that Ms Mgweba withdrew her statement?

Ms Mente: I would think because Ms Mgweba is an ANC [Member], so ordinarily this Speaker who comes from the ANC, when they put a new ruling to the Members of the ANC, they must comply with that ruling because they are the same caucus. But when it comes to me, I wouldn't know why she took that particular route and I wouldn't understand why she did. She was not interested in fact, but takes whatever Zulu was saying to her as true and therefore it must be applicable to me as well.

Adv Ka-Siboto: Thank you and then…

The Chairperson reminded Adv Ka-Siboto that only two minutes were left.

Adv Ka-Siboto: Thank you Chair. Ms Mente, just three questions quickly. You were first asked why didn't you explain to the Speaker what happened. Were you asked to explain to the Speaker what happened?

Ms Mente: I wasn't asked to explain. I was asked to withdraw.

Adv Ka-Siboto: And then what you're also asked is, in fact, this was a statement from Tseke MP. I think it is where she says she has reached the conclusion that your conduct was unparliamentary. Then I also want to quote Mlenzana MP on the conclusion that he has equally reached at this stage already. Mlenzana MP specifically says – let me put it to you for your comment you deliberately veered from the Rules to defy the Speaker. In other words, he too has reached a conclusion at this stage already. These are the Members of the Committee one would have expected would apply an independent mind having considered the totality of the evidence and applied the legal test to those facts. But at this stage, at least we've got an indication from two Members that they’ve reached conclusions about your behaviour. Do you have a comment?

Ms Mente: Yes, hence my answer to them that that is a foregone conclusion and hence there's a question mark on the compilation of this particular Committee which must decide on the power and the privilege of each and every Member of the House. They've concluded and that is why I said there's nothing for me to comment about on his views because his views are the foregone conclusion that I have breached… or contempt of Parliament…whatever charges.

Adv Ka-Siboto: Thank you very much, Ms Mente. Thank you, Chair.

Adv Golden indicated to Adv Ka-Siboto that the Committee should complete the evidence of the two other witnesses of the EFF. She guaranteed that she would be as succinct as possible. She suggested that the Committee could grant them off tomorrow and re-convene on the 14th at 10am.

The Chairperson emphasised that the main objective of the Committee was to complete this work and supported Adv Golden’s suggestion.

She sought other Members’ inputs.

The Committee supported the proposal to continue the re-examination of witnesses.

Cross examination of Mr Khanya Ceza
Adv Ka-Siboto: Good afternoon, Mr Ceza.

Mr Ceza: Good afternoon Advocate.

Adv Ka-Siboto: Mr Ceza, what I will do is take you through the incident which happened on 30 August 2022. You’ve been sitting and observing since yesterday And I would have presumed that you had a sense of what we are talking about. Not so?

Mr Ceza: Yes, I’ve got a sense.

The Chairperson interjected and reminded Mr Ceza that he swear an oath in terms of Rule 168. She read the oath aloud and Mr Ceza repeated after her.

Adv Ka-Siboto: I was saying to you that you've been part of this process since its inception, that being yesterday morning. You would be aware about what you've been charged with and the fact that you've been dealing with those charges, not so?

Mr Ceza: Yes.

Adv Ka-Siboto: Suddenly, suddenly, and there's been a suggestion that you should be treated different to other Members of Parliament on the day. That your sanction at least the charge that's being put against you stands. Because unlike other Members of Parliament, you spoke after the Speaker directed that she's not taking any more points of order. Do you recall that?

Mr Ceza: Yes, I do.

Adv Ka-Siboto: I want to test that claim that you are the only MP who spoke after the Speaker had said no more points of order. Let's start with page 278 of the bundle which is page two of the Hansard itself. On page 278 is a transcript or transcription of what happens in the House on that day. And it happens immediately when the session starts. Earlier on, you see, under the topic Questions to the President and then it shows what Mr Shivambu said on a point of order. Do you see that?

Mr Ceza: Give me a second.

Adv Ka-Siboto: It's page 278 of the bundle. Let's do this. Are you there? I'll read it and if the Initiator has an objection, then she can raise an objection. But for the sake of progress, you'll see that Mr Shivambu raises a point of order immediately and then there's a response to Mr Shivambu. She says I'm not allowing a point of order I am requesting sit down now. The Speaker had already said she's not allowing points of order. Not so?

Mr Ceza: Yes.

Adv Ka-Siboto: What then follows at page 279 is a point of order that is being raised. The Speaker engages with Mr Malema who's raising a point of order, do you see that? Go to page 280, you see an engagement between Mr Malema who is persisting with his point of order and then she entertains that point of order. She says Hon Shivambu, we have not as yet got to the point of questions. Hence I'm stopping but I've called somebody. Once he has spoken then you'll raise your point of order. So they speak at that point despite her initial comment about allowing a point of order at this point, not so?

Mr Ceza: Yes, she does.

Adv Ka-Siboto: Then go to 282, Mr Shivambu then raises a point of order which the Speaker accepts. Despite her saying she's not taking points of order, she actually entertains Mr Shivambu's point of order and then she responds to it. Not so?

Mr Ceza: Yes.

Adv Ka-Siboto: Then go on at 286. What you see there is a point of order being raised by the Deputy Chief Whip of the ANC which the Speaker accepts and the point of order is made. Then go to page 288, Mente MP raised the point of order which is allowed. Then go to page 290 and an MP of the ANC raises a point of order which is allowed. You didn't ask for it and then the Speaker at page 291, the Speaker says Hon, let's see, sit down Hon Mkhaliphi, I’ll recognize you and you'll be the last one, you will be the last one. Then she acknowledges Letsie MP. You then move on. So there's a second ruling now from the Speaker saying, I will not take any more points of order. But then you go to 293 Letsie MP raised the point of order which is allowed; you go to 294 Mkhaliphi MP raised a point of order which is allowed; at 296 Shivambu MP raised a point of order which is not allowed; Hon Malema at 298 is given the podium; at 299 Radebe MP raises a point of order which is allowed, it's the second time that the MP raising a point of order which is permitted. Then go to page 300 Zulu MP of the ANC raised a point of order which is allowed; then go to page 303 there the Speaker makes a ruling again. This is the third one. So despite two previous rulings she has allowed a point of order and then for the third time she says I will not allow any points of order now, I want us to proceed. There's a third ruling but what happens after she's made that ruling at page 304 Shivambu MP raised a point of order which is not allowed; then Tambo MP raises a point of order which is allowed…

Adv Golden: Sorry chair. May I just raise an objection?

Chairperson: Ok Initiator you may proceed. What is your objection?

Adv Golden: I didn't want to unnecessarily interject because we obviously want to finish the evidence. But what is abundantly clear what my learned friend is doing, this is his witness, he's leading the witness. He’s pointing out certain transcriptions and drawing and stating conclusions to the witness. Evidence-in-chief is about asking questions and allowing the witness to give the answer not the other way around. So I object to this line of question.

Chairperson: Advocate, there is an objection. Can you assist us by doing what your learned friend is requesting you to do? Thank you

Adv Ka-Siboto: Yes, just by way of introduction and response to the objection, I accept the objection. It is properly made. That is precisely what I was doing. The difficulty we have then Chairperson is finishing today because what I’ve been called to do is to ask Hon Ceza to go to a particular page; ask him to read what is written there; then he's going to read a paragraph for two minutes; then I’m going to ask him what does it mean; then he's going to answer. I’m going to do this 24 times at least. That's way beyond two hours. So then, chair, may I suggest that we adjourn and we restart this process tomorrow. Then I'll undertake that exercise which will obviously go beyond two hours? Thank you, chair.

Chairperson: Advocate, yourself and your learned friend came with the proposal to us and we have agreed on that. Now your learned friend is raising certain objections which you as a legal guru, you understand each other. Rather align yourself with what she's objecting and proceed. Because we've already agreed that we're proceeding so I don't think that it will be genuine for us now to interrupt ourselves. Could you please stick to that? Your learned friend has said cross examine your witness through questions so that we can benefit as the Committee because our interest is to get the views of the witnesses.

Adv Ka-Siboto: Thank you Chairperson. I empathize readily with your concern. The point is it is physically impossible to do what you're asking me to do, with respect. The objection is I reached a conclusion or I sum up what is in the Hansard. By so doing and it's properly objected to, by so doing I am leading the witness. And I’m saying that agreement came as a result of me assuming that wouldn't be of concern. It clearly is of concern. I’m saying and as much as I would try and assist the Committee by doing what you're suggesting, I’m saying it is physically impossible – rather than a question of my unwillingness to do it. If I want Mr Ceza to confirm what I’ve just summed up without telling him when he's there, he's going to have to read it and for him to confirm he would have to read what is in the Hansard. There are 20 separate occasions we're wanting to read what is in the Hansard. Thank you chair.

Adv Golden: Thank you chair my learned friend has now pointed out all the sections in the Hansard which he wants the witness to comment on. It has already happened. So I would then invite and ask him to ask the witness questions based on what he has pointed out, but not to suggest inferences and conclusions to the witness so we can deal with this point immediately. We don't have to have the witness go through every single page. But going forward I would just like to caution my learned friend to rather ask the witness to give the answer instead of suggesting the answer to him. But as far as this point is concerned, he's already drawn attention to the relevant parts of Hansard so now the questions must follow. Thank you chair.

Chairperson: Thank you Initiator. Advocate, if we can be assisted along those lines, it will make life easy for all of us.

Adv Ka-Siboto: With respect Chairperson, I’ve made reference to some instances. I was in the process of making reference to them when the objection came. I'm not done making references in the Hansard. I was on the 13th point of 75 points. I’m nowhere near being done with this aspect of my evidence chair. So it can't be then that now I have to ask questions, having not made reference to the balance of the references I want to make reference to. Thank you.

Chairperson: Advocate, I thought the two of you will assist this process. And from the first witness, things were smooth. I believe if we can take that route, but at the end of the day, we're expecting you to ask questions so that we can hear the view of the witness because that's what we're interested in. Proceed

Adv Ka-Siboto: Let me understand the Chairperson. Is the Chairperson then suggesting I'm allowed to read the extract and then put the question? I must read all these 75 instances I'm referring to, is that what the chair suggests? I am just seeking guidance chair.

Chairperson: Uh…I believe the best way is to proceed quoting where you want to ask questions and then you ask questions, you may allow your witness to jot down those questions and then he responds to those questions. I think it will assist us because we can't deprive you to quote those incidents.

Adv Ka-Siboto: Mr Ceza, would you please go to page 303 of the Hansard…

Mr Ceza struggled to find the document. The Chairperson requested assistance. Adv Golden noted the prolonged process and suggested Adv Ka-Siboto go through the document himself and she would have no objection to that. He could thereafter asked the witness to comment.

Adv Ka-Siboto: I’ve started by saying that you have been accused, well the allegation is that you are different from the other MPs who raised a point of order and were not asked to leave despite the ruling of the Speaker because you unlike the rest of them raised a point of order after the Speaker had made a ruling that there will be no further points of order. And the exercise would begin to show that that can't be true because different Members of Parliament raised points of order after the Speaker had made the ruling. That's the exercise we're doing. Pages 278 to 283 and 286 to 288 and 290 are points of order that have been raised after the Speaker made the first ruling. She makes the second ruling and then there are points of order and we'll share this spreadsheet if it might help, for exact location of where we make these claims. Then the third time, the Speaker again will not allow points of order and then at 303, 304, 305, 309, 311 and 312 points of order are being raised despite the Speaker having said no points of order. What's interesting, in 312 though is that for the first time you raise a point of order, about 20 times other people having raised points of order, despite the Speaker saying no more points of order. You then raised the first point of order at 312, the Speaker does not recognise you. When I say you raise a point of order, I mean not once, repeatedly in that one instance, and you're not recognised. Then the Speaker makes the fourth ruling that she would not take any more points of order. This is now 314. Immediately after making that ruling, Gungubele MP of the ANC raises a point of order. Interestingly, the Speaker accepts the point of order despite just earlier not taking yours. Then after Gungubele MP has spoken, Malema MP raises a point of order which again interestingly the Speaker accepts. At 314, Lamola MP of the ANC raises or rather he speaks without being recognised. He speaks without being recognized. This is at 317. It's 318, 320, 321, three further points of order were raised. Two of them are accepted by the Speaker. At 328, the Speaker makes the fifth ruling that she will not take any more points of order. This is what is now interesting. At 330, Tambo MP of the EFF raised a point of order right after the Speaker had said no more points of order. She doesn't allow it then another MP from the EFF Shivambu MP raised a point of order, she doesn't allow it. For the third time, Radebe MP raised a point of order immediately following the rejection of the other two from the EFF. The Speaker allows for that point of order. This is at 332. This is what Radebe MP says. She directs the Speaker to what she ought to do. You will please ensure that these people violating the Rules are evicted – a point of order she raises which the Speaker had allowed. Then for the sixth time at 335 the Speaker again closes the points of order. At 337 Malema MP raises a point of order, the Speaker allows it. I could go on and on and on. The point is made that it couldn't be, I will not make a submission, the point simply being made is there's this inconsistency. Now let's deal with your particular scenario, the exact same thing that happened leading to your eviction and here I have to read. If you can go to 344 and perhaps don't ask this of the Initiator quickly, sorry.

Mr Ceza: I don't have the document.

Adv Ka-Siboto: Mr Ceza, I will then read from 339. Right at the top, there it says, this is the Speaker, I am not allowing points of order. This was the sixth time as we've established that she had said this. Then at 339 she says "I'm not allowing points of order". Do you see that?

Mr Ceza: I see that.

Adv Ka-Siboto: Then you say something after she said that. What did you say if you can see the screen?

Mr Ceza: Can I call a point of order on you Speaker?

Adv Ka-Siboto: In other words you're raising a point of word at that point.

Mr Ceza: Yes.

Adv Ka-Siboto: Yes, so you did raise a point of order. Is what I'm getting at?

Mr Ceza: Yes, I did.

Adv Ka-Siboto: And then the Speaker speaks; what does she say in response?

Mr Ceza: Speaker says that because you are using points of order to distract us from what we're trying to do – even to me – you can write to me and point that out.

Adv Ka-Siboto: Now at any point did the Speaker allow you to speak at that point?

Mr Ceza: No.

Adv Ka-Siboto: Then how would she have known that you are trying to distract the House?

Mr Ceza: I wouldn't know, perhaps it is the issue of discretion that we have heard from Mr Xaso that she uses courtesy of some kind to then inform what it… because I didn't speak, I was not allowed to speak yet.

Adv Ka-Siboto: Yes, and the Speaker would not have known what you're going to say.

Mr Ceza: Wouldn't have known at all even if she was a fortune teller.

Adv Ka-Siboto: Then go to the next line. What do you say?

Mr Ceza: Do not be agitated, Speaker, as the presiding officer.

Adv Ka-Siboto: And what does the Speaker say?

Mr Ceza: I have no choice if your people are screaming.

Adv Ka-Siboto: So who is your people?

Mr Ceza: I assume that is insinuating that because I'm coming from the EFF as an individual Member, she means that your people, the EFF.

Adv Ka-Siboto: I mean obviously in the same way you're saying the Speaker’s not a fortune teller, neither are you. You’re speculating as to what it is that she would have been thinking, so it's a speculation rather than a fact?

Mr Ceza: It's not a fact, it's a speculation. I should think that she means that I'm coming from the EFF and I'm there and I'm wearing red so she thinks that she would say 'your people' which means the collective rather than me.

Adv Ka-Siboto: I see. So as you understand it, the Speaker did not allow you to speak simply because you belong to the EFF.

Mr Ceza: Yes.

Adv Ka-Siboto: Let's go to the next line and you're saying…

Adv Golden: Sorry can my learned friend just repeat that please?

Adv Ka-Siboto: The question I was asking you, you were saying Mr Ceza, that the Speaker said, I have no choice if your people are screaming. And you're saying you understand the Speaker to be saying you people of the EFF, is that so?

Adv Golden: Yes. But you are leading the witness. You are…

Adv Ka-Siboto: I am summarising the testimony…

Chairperson: If there is an objection, I request that you listen to the Initiator, it will assist us and then we will respond after.

Dr M Ndlozi (EFF): But shouldn't the Initiator speak through you? Because that will make this dialogue easier?

Adv Golden: Thank you Chair. The objection that I raised is that I do not want the my learned friend to lead the witness to the extent where he puts words in the mouth of the witness where he suggests answers to the witness. Also the second part of my objection is how can the witness fairly and appropriately draw a conclusion as to what the Speaker meant when she said those words? No one can say that but her.

Chairperson: Thank you, Initiator. Advocate, I believe we will proceed but try to ask questions because the Committee is also interested to hear the views of the witnesses. Proceed.

Adv Ka-Siboto: I put no words into no one's mouth. With respect, Speaker, it was the answer from Mr Ceza himself. He himself gave the answer. And I'm saying I'm building up on what he himself has said and all I'm doing with the question of who was the Speaker talking about. I don't know whether Mr Ceza knows or not; I therefore have to ask him the question. After he speculated, I then said, “well then don't state it as a fact, state it as a speculation” because you're speculating. That is all I'm simply doing. Mr Ceza, let's start this exercise again. Read for me what the Speaker says right at the top, let's start again, let's go back to the top of 339.

Mr Ceza: The Speaker says I'm not allowing points of order.

Adv Ka-Siboto: And what do you say?

Mr Ceza: And I call a point of order on your Speaker.

Adv Ka-Siboto: And then what does the Speaker say? You are using points of orders to distract us from what we are trying to do. Who is she referring to?

Mr Ceza: She’s referring to the House. She wants to proceed.

Adv Ka-Siboto: Yes, and then what do you say in response?

Mr Ceza: I say “do not be agitated, Speaker, as a presiding officer”.

Adv Ka-Siboto: And then what does the Speaker say?

Mr Ceza: I have no choice if your people are screaming.

Adv Ka-Siboto: Who are your people?

Mr Ceza: I assume that because perhaps she sees my red overall and where I'm seated, she means your people being the EFF.

Adv Ka-Siboto: Yes, and then what do you say in response?

Mr Ceza: You cannot be agitated.

Adv Ka-Siboto: Now then let's go to page 344. Can you read what Mr Shivambu says?

Mr Ceza: OK. Hon Speaker, on a point of order.

Adv Ka-Siboto: And what does the Speaker say?

Mr Ceza: Mute your masks; I beg your pardon, your microphone, please to all of you. Hon Mthenjane, no Member may in any manner whatsoever physically intervene and prevent and obstruct and that is what you did, Hon Mthenjane.

Adv Ka-Siboto: Let's go to page 345 after the Speaker says Sergeant-at-Arms please remove Hon Mthenjane? Hon Malema MP says Speaker, do you see that?

Mr Ceza: Yes.

Adv Ka-Siboto: Then the Speaker responds. Hon Malema, I'm not entertaining any points of order now because points of order have been used to disrupt us. Do you see that?

Mr Ceza: Yes.

Adv Ka-Siboto: And then Malema MP says I want to appeal to you to calm down please.

Mr Ceza: Yes, I see that.

Adv Ka-Siboto: You see that exchange and the Speaker responds, Thank you very much Hon Malema, I'm calming down. Sergeant-at-Arms, you're taking long to report back. Do you see that?

Mr Ceza: Yes, I see that.

Adv Ka-Siboto: This is where you then come into play. I will not say there, but ultimately, we are getting to a point where you now become involved in this whole scenario.

Mr Ceza: Yes.

Adv Ka-Siboto: 339 would have been where the conversation starts which is the discussion we're having and then you go to 340. I'll read what you said at 340 if you could just pay attention to it. You say “He must respond to the issues pertaining to the abuse and the abduction of women in Phala Phala farm, that is what is at stake, that is what is at the centre of what you should be responding to, because in a country like this we cannot when women are being killed – and then you are inaudible – and the President does that as the first citizen of the country and you are saying to us he must not be held accountable”. Then the Speaker responds, “Hon Ceza, would you please leave the House? Hon Ceza, would you please leave the House?” Do you recall that happening?

Mr Ceza: I recall that very vividly.

Adv Ka-Siboto: And then what does Hon Malema say?

Mr Ceza: He says Speaker you did not warn him, you did not warn him like you did with Shivambu. Speaker, please warn him the same way you warned Hon Shivambu. Please warn him. You did not warn him Speaker.

Adv Ka-Siboto: Yes, and what did you understand as to what Hon Malema was saying then?

Mr Ceza: My understanding of what Malema MP is saying – that there has been a dispensation of speakers that have been speaking to us 41 minutes into the sitting. Thus far, I've not been allowed to speak. Many of these Members of Parliament have been allowed to speak even when they were not recognised, including Minister Lamola and there's nothing that happened to him even though he was called to order and was asked to refrain from what he did. I'm saying that because at the beginning, I actually called for the attention of the Speaker before that happened, before all those speakers were speaking. That dispensation of speakers that are allowed to speak, and throughout I've been calling the attention of the Speaker. When I am doing that; when I'm speaking as indicated above in the same manner that Hon Lamola is speaking, I am ejected from the House. I think that is unfair application of the Rules because you can't shortcut and have a plethora of chances that you're giving to Members selectively. Then when it comes to me , you then apply a Rule that says that you should go out of the House. I think that I actually sat down at that point because my understanding was that there was someone on the floor and trying to make a point about me having to be warned before. I get an opportunity to be warned before that decision or that determination is made by the Speaker.

Adv Ka-Siboto: Let me pause you there because I think I'm going to where I want to take you now. You are saying that there's someone on the floor suggesting to the Speaker that you need to be warned first as she has with other Members. OK, you're saying this happened – when did Malema MP make that statement?

Mr Ceza: He was making that statement at a point where the Sergeant at Arms had come to me and told me to get out of the House. At that point, I stood up before Hon Malema MP actually commented. Me sitting down was to listen to the engagement that pertained to my warning before I was evicted…

Adv Ka-Siboto: Just hold on. I'm happy with that answer. After Malema MP makes that statement, what happens? Under the text of Malema MP at 341, I want to show where the Speaker called the Parliamentary Protection Services unit. If you can just take me there please, 341. So what came before those various appeals by Malema MP to one yourself before you are evicted. The Speaker then says something. Read for me what the Speaker is saying.

Mr Ceza: All the Parliamentary Protection Services, PPS.

Adv Ka-Siboto: After she says that, what happens?

Mr Ceza: Hon J S Malema, he says to the Speaker at least warn him.

Adv Ka-Siboto: Are those things happening simultaneously, in other words at the same time? That is, the Speaker saying call Parliamentary Services and Malema insisting that you be warned. Was there a persistent engagement between the two, the Speaker and Hon JS Malema MP?

Mr Ceza: Yes.

Adv Ka-Siboto: So then let me ask you this: when you were being told to leave the House, why did you not leave the House?

Mr Ceza: Advocate, I did not leave the House because there was an engagement that ensued between Malema MP and the Speaker pertaining to myself so that just like other Members I will be treated equally in the House. At least I must be warned. So that engagement was happening. It was not because there was resistance. It was because I had to listen to the engagement. What is the determination that's going to be taken by the Speaker pertaining to my warning?

Adv Ka-Siboto: Thank you Mr Ceza.

The Chairperson thanked Adv Ka-Siboto and said extra time had been allocated due to the disruption earlier. In the cross-examination of the next witness, she would adhere to the allotted time period.

Re-cross examination of Mr Ceza by Initiator
Adv Golden: Mr Ceza, respectfully, I hope I'm pronouncing your name correctly. Can we start with the very last issue that was raised by your Advocate? Your answer was I did not leave the House because there was engagement between the Speaker and Mr Malema, I had to listen and wait for a determination. If we could just pause there. Let's look at page 340, 341 and 342. Mr Ceza, where is this engagement between the Speaker and Mr Malema that you talk about?

Adv Ka-Siboto: If I can just come in Chair. My apologies. The difficulty with the question is more of a practical concern rather than the argument itself. Mr Ceza unfortunately does not have the benefit of this document in front of him.

Adv Golden: I'm sorry. I don't understand. You can see this page, can you not?

Mr Ceza: Yes.

Adv Golden: I'm only going to focus on 340 and 341.

Adv Ka-Siboto: The point I simply make, Chairperson, is that there's engagement outside of 341 between Mr Malema as well as the Speaker. It could well be…

Adv Golden: Sorry Madam Chair it's not appropriate for my learned friend to interrupt because his witness is now under cross examination and the answers that he is giving when he is engaging with me is suggestive of the answers that may be elicited during cross examination. It's highly inappropriate for my learned friend to be doing that. I must be permitted to cross examine the witness.

Chairperson: Advocate, can we allow the Initiator to cross examine the witness so that the Members of the Portfolio Committee can also benefit? Earlier, you advised me that the Initiator is speaking without your authority, but that's what you are doing now. I will request that everyone respects the decorum of the House and respect the Chairperson. I'm also respecting you. I'm being patient and giving you ample time for your input so that at the end of the day, I don't want to be seen as if I was biased. So if we may proceed along those lines.

Adv Golden: Thank you Madam Chair. So Mr Ceza, let's look at page 340, where is this engagement between Mr Malema and the Speaker that you speak of in your evidence in chief? We're on page 340, Malema MP calls the Speaker. You used the word 'engagement'. That is a very distinct meaning, engagement. What I see here is that Mr Malema raised an objection to the Speaker. "You did not warn him Speaker like you did with Shivambu". Then the Speaker is speaking to you, she has asked you to leave the House. She is not engaging Mr Malema at this stage. That is what I see here. Do you have a comment on that?

Mr Ceza: Yes, I do have a comment. The first comment that I want to tell you; you are at a very advantageous place, Initiator. You speak English like it's second nature. If I said engagement, I can say that in Xhosa now [uses a Xhosa word], it would mean something else. So the intolerance that is shown in terms of the right word, you would have to refer that to my legal team because I'm not a lawyer myself. So the right wording to the lawyers there?

Adv Golden: If you want, my junior that is assisting me is Xhosa speaking. She's listening to you very carefully now and she has told me that the word that you have used in Xhosa means they are speaking together.

Adv Ka-Siboto: Chairperson.

Adv Golden: No I'm sorry Madam Chair, Mr Ceza is under cross examination. I must be allowed to continue my cross examination. My learned friend will have an opportunity in re-examination to question his witness.

Dr Ndlozi: But she's speaking through the Chairperson.

Adv Ka-Siboto: I'm more than prepared to sit here and take your rulings in the spirit of continuing and I've been doing so all along there are numerous instances where I was spoken over by the Initiator; you did not Rule against that, then permitted it. I was raising a point with you previously; [that] there was an interjection by the Initiator. It did not stop. She makes her own ruling in your presence about what needs to happen and she's trying to do that right now without your intervention. I am raising an objection and being told I cannot raise an objection, not through a ruling, and this has been persistent. I'm happy to sit right through it if you allowed. I'm simply saying Chair there is no provision that says you cannot raise an objection to cross examination. She has done so herself today and you did not suggest that she's not allowed to do it. Now she's inviting you to make a ruling about conduct which is not different from her conduct when my client was under cross-examination earlier as well as yesterday. Chair, there's no reason why I cannot raise an objection to a line of questioning. There's no such a principle that I can't raise it. What we have now, Chairperson, is if you will, a witness who's own junior is giving an interpretation of what is happening and that is presented as evidence in this Committee. The subjective interpretation from her junior must decide what the word means. I'm going to invite you to make a ruling. I can let you know now it's not the last time that I’m going to raise an objection if I see fit. If you make a ruling that I shouldn't, I'll be happy to comply. But certainly, I will raise the objections when I see fit. I'm asking you for your ruling on this issue of the interpretation of the word.

Chairperson: Advocate, I think on that one, on the issue of the interpretation of the [Xhosa word] because you have got an opportunity again to re-cross examine your witness, you may outline your issues. I will not object to you making some objections as long as they are in line with the law. But the two of you must assist the Committee by following the correct procedure. What she is doing, your objections should be based on their behaviour like now you are sticking to the issue of the interpretation. But to cross examine the witness, she must be allowed to do so unless she's not putting questions. For that, as the defender, you can object. I think along those lines we may proceed.

Adv Ka-Siboto: If I may respond to that, Chair. Thank you for ruling. I respect it. I just place it on the record that I object to it in principle. Thank you Chair.

Chairperson: No problem at all, Advocate. Initiator, thank you. Initiator, you may proceed with your cross examination.

Adv Golden: Thank you Chair. Through you, Chair, I don't know if this would also be helpful to assuage my learned friend on the issue. Could I perhaps ask the Chairperson to ask the witness what he meant and then to convey that in English to the hearing?

Chairperson: Hon Ceza, can you try to explain it in English since they were pretty difficult – which I am also not disputing – on what you are saying that is right. Just to clear that misunderstanding, thank you.

Mr Ceza: Thank you very much. We must not get started on those things and open the wounds of apartheid and all other segregationist things that were done to us. But I mean that there was an engagement between the Speaker herself and Hon Julius Malema. In terms of the warning, it's on record that I am looking at Chair and he says "you did not warn him, you did not warn him like you did with Shivambu".

Chairperson: Thank you for that clarity. Mr Ceza has clarified in another language. Please proceed with the cross examination.

Adv Golden: Mr Ceza, so I think we are done with page 341. Just to put it to you that there was no engagement between Mr Malema and the Speaker on the issue of the warning. The Speaker had ruled that Mr Ceza you must leave. She did not even recognise Mr Malema and she persisted with her ruling that you must leave. So there was no engagement that you had to remain in the House. I say the same about page 342 again. When I look at page 342, if we can just call up 342 for the witness. At no stage on page 342 or 343 did the Speaker even acknowledge / recognise Mr Malema. She didn't speak with him. She didn't give him a hearing. She didn't recognise him. She persisted that you must leave. So when you say that you respectfully sat down at this stage because there was someone on the floor saying that you must first be warned; you did not leave the House because there was this engagement between the Speaker and Mr Malema where you first have to listen and where you have to wait for the determination about Mr Malema. With respect, that's clearly wrong. It's a matter of opinion. That is simply incorrect as a matter of perception.

Mr Ceza: Depending on what narrative you are chasing here. You know Chair, at that point, I'm referring to the point at which the commander-in-chief spoke to the Speaker pertaining to my eviction, sorry, wrong word again, pertaining to my myself being kicked out from Parliament. So I'm referring to that moment in terms of what you have asked me.

Adv Golden: Mr Ceza, you mentioned the word commander in chief, I assume that you were talking about Mr Malema

Mr Ceza: Uh you know he is. You know he is a commander-in-chief. OK no it's fine, let's see what you want to say next.

Adv Golden: OK

Mr Ceza: We must not be brought to these things again.

Adv Golden: My apologies, I didn't hear that.

Mr Ceza: I'm saying that you know that the commander in chief in the Economic Freedom Fighters is President Julius Sello Malema, that's what I'm saying.

Adv Golden: I hear what you say, Mr Ceza, I respect what you say, but that is your interpretation, I just wanted to be clear about it. I just wanted to be clear about it because when one speaks of commander-in-chief, other people may say that that is the President. But be that as it may, let's move on number 350…

Mr Ceza: Sorry Chair, what is the relevance of that particular comment?

Adv Golden: I will tell you now what the relevance is; the point I seek to make, will you allow me?

Mr Ceza: Go ahead.

Adv Golden: It seems to me that you rather listened to Mr Malema first than listening to the Speaker and respecting the authority of the Speaker. You rather respect the authority of your commander in chief in the National Assembly, isn't that what this is all about?

Mr Ceza: No, it's not about that. Remember that I said that I had called for the Speaker’s attention at the beginning – at 41 minutes. All that time there was a dispensation of speakers that were allowed, the ones that spoke and the ones that were recognised and the ones that were not recognized; it's on record. So that's what I've been saying here the actual thing now it emanates from that. I'm not in Parliament because it was the Speaker who had an authority to pull out Members of Parliament. As much as I respect and salute the commander in chief in terms of the body politic of South Africa. I really showed that… displayed that I refrained in the House in the first instance when I called the attention of the Speaker which is respectful enough.

Adv Golden: Mr Ceza, ultimately you disrespected the authority of the Speaker and you defied her authority when one looks at page 340. Because she did not recognise you, you spoke on your own and raised the issue of the Phala Phala. The Speaker then responds, Hon Ceza, who has recognised you; Hon Ceza, will you please leave the House? So without being recognized, you raise a point that she has already determined. You disrespected her, you defied her.

Dr Ndlozi: A point of order, Chairperson?

Chairperson: Advocate. I'm not allowing point of order. We've got the legal defence, so I'm not allowing that.

Dr Ndlozi: With due respect Chairperson, could you then allow the legal rep to assist us because the Initiator is leading the witness?

Chairperson: I'm not allowing that. They've got their legal representatives. If you want me to take that route, you will also be misleading the Chairperson. With respect, I am not allowing you to do that. Thank you. Initiator, you may proceed with your cross examination.

Adv Golden: Thank you Chair and then just to finish off. Mr Ceza, when one goes to your charge sheet or the notice on page 248 of the bundle. Charge one, starts at the bottom of 247, alleges that you contravened section 7(a) and (a) of the Powers and Privileges Act together with National Assembly Rule 69(a), (c) and (f). If you could just permit me, 69(a) speaks of gross disorderly conduct where a Member deliberately creates serious disorder or disruption, repeatedly undermines the authority of the presiding officer, or repeatedly refuses to obey rulings of the presiding officer, or repeatedly disrespects, interrupts the presiding officer while the latter is addressing the House and then if acting in any other way to the serious detriment of the dignity, decorum and orderly procedure of the House. I must just to conclude that point. I just have one more point to make. That it is clear from the video evidence and from the Hansard transcript that you contravened those Rules in that you blatantly disrespected and defied the authority of the Speaker. Do you have a comment on that?

Mr Ceza: No thinking person, sane person can negligently ignore the authority of the Speaker. At that point you are referring to, I am listening to Malema MP engaging the Speaker on whether I should be warned in the same way that other Hon Members were warned. I'm doing so in respect of the fact that I'm looking for a determination on whether I will be warned given the fact that a lot of people, a lot, that dispensation of people that are allowed to speak even when they were not allowed to speak are allowed and are not kicked out of the House. So I can't be acting negligently, deliberately, surely. You can see there in the video that at one point I stood up immediately after the Speaker said so. But because there was then an issue of [7:44:59 inaudible], I sat down.

Adv Golden: That is now Charge one I've put to you. I've told you why I think that you are guilty of that charge. You've commented on that. Then there's a second charge and the second charge is that 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. This is what I want to focus on now for your comment. 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 Sergeant at Arms to remove you. You also then refused the Sergeant at Arms which then compelled the Speaker – and Mr Ceza, this is all on the video and in the Hansard. You were duly removed by Parliamentary Protection Services. Now the issue of Phala Phala, you raised that without being recognised. It's on page 340 with 341 on top. Now the issue of Phala Phala was raised and dealt with previously and earlier on in the proceedings. Ms Mathulelwa raised the issue of Phala Phala for the first time and the Speaker addressed her on it, actually she addressed the House on it. Then Mr Shivambu raised it again without even being recognised. The Speaker again reprimands him and says that they are busy with the first question in the Order Paper which was migration. Mr Shivambu doesn't listen and raises it again on page 338. I'm giving, just for purposes of the Committee and your counsel, I'm giving the page numbers. Then, Mr Ceza, you raised it again for the fourth time. Not you for the fourth time but Members of the EFF raised it again for the fourth time. You do so without being recognised and when the Speaker has already said that that is not the order of the questions – that everybody will give an opportunity to deal with Phala Phala. Despite all of that and unrecognised, you defied the Speaker, you disrespected her authority, raised it again, which then compelled her to ask you to leave the House which in my view she correctly did. In relation to charge two, when ordered to leave the chamber in terms of Rule 70, it was for disregarding the authority of the Chair. That is why she asked you to leave. What do you say to that?

Adv Ka-Siboto: If I can come in, chair, before Mr Ceza responds and I'm going to ask for your ruling yet again, Chairperson.

Chairperson: Yes, Advocate.

Adv Ka-Siboto: I did the exact exercise that the Initiator has just undertaken now to which she objected. I would read to myself and then put it as fact to the witness. She is making references to factual claims that have occurred and without inviting the witness to confirm with the fact or not, she poses the question to him that puts him in a position where he is to answer for something he does not know. If there's a claim of what happened, happened; then we must be satisfied, all of us, that it in fact happened. That's exactly what I was being objected against earlier on. And it can't be removed on the basis of none of us knows whether this is true or not and the witness is asked to answer to it. Thank you Chair. `

Chairperson: Thank you Advocate. What is interesting, the two of you are making life difficult for the Chairperson and I'm hearing that you referring to your good self that is what you were doing. So can we agree my legal gurus both of you that we proceed with this proceeding along with the Rules and the laws of the House? Initiator please ask questions as the Advocate is referring to, so that the witness will be able to answer the question before him. I think that will also assist us. Thank you.

Adv Golden: Let me try and condense it and simplify it. Chair, you will obviously recall it and I'm also addressing the Committee that Mr Xaso also testified to the issue of Phala Phala how it was raised in the House and how the Speaker dealt with it. So this is not a new issue that I'm cross examining. But in order to facilitate the issue, let me try and condense it. Mr Ceza, you raised the issue of Phala Phala, you did so while the Speaker did not recognise you, is that correct?

Mr Ceza: I raised that issue as part of a series of Speakers wherein I was not recognised in the first place to speak, meaning that I could have raised that issue earlier on if I was recognised. The least the Speaker should have done is to ask the President not to take a decision to dismiss me. That's my answer to that.

Adv Golden: And I will leave it to that because the answer doesn't make sense. Even the Speaker on page 342 tells you that she did not recognise you. It was on that basis that charge two is formulated in the manner that it has been. You refuse, you disregarded her authority, you refused to leave when she ordered you to do so and that was a contravention of another Rule. When you refused the Sergeant at Arms, that was a contravention of a further Rule which compelled the Speaker then to call the Parliamentary protection services to have you removed. so I'm putting it to you that your defiance and your disrespect of the Speaker and the House did not stop at the issue of Phala Phala and that will be my last question to the witness Chair.

Mr Ceza: You want me to answer?

Adv Golden: Yes, it's your right to respond.

Mr Ceza: Yes, I just want to say to you that there is no defiance that I intentionally, or, I've said that to you, you know, no same person can do that unless you are now putting words in my mouth that are different from what I was saying. I was saying that to you I respected that the Speaker of the House. Earlier on I sat down and I even sat down at a point where there was an engagement in terms of whether I should be warned or not. So I don't know if that constitutes defiance. But I'll leave it to her opinion. Thank you very much.

Adv Golden: Thank you that is my cross examination.

Chairperson: Thank you Hon Ceza and the Initiator. I will now invite Hon Members to ask clarity seeking questions to Mr Ceza.

Committee Member questions to Mr Ceza

Mr Mlenzana explained the Xhosa word that had been in discussion earlier meaning around. He asked Mr Ceza if there is a particular rule which demands that a Member should be warned when disrupting proceedings of the House.

He asked Mr Ceza what his understanding of defiance and contempt are in the context of this hearing.

Ms Dlakude asked Mr Ceza in his own understanding of the National Assembly Rules, why he didn't take the recourse available for Members if not satisfied with the rulings of the Speaker.

She asked Mr Ceza which National Assembly Rule says Members can ignore the sequence of the questions of the day and jump to the question that they prefer to ask. In her own understanding of the Rules, questions are in sequence and we start from question one up to the last question. What made him jump to question five instead of following the sequence that is always followed?

Mr Xaba asked Mr Ceza when the House is in session and once the Speaker gives an order, whether Members really could invite any other speaker on the basis of engagement.

He asked if Members of Parliament in the House are allowed to have representatives talking on any matter with the Speaker before the Speaker could exercise an instruction?

Dr Ndlozi commented on the 'engagement' remark which Mr Ceza had mentioned earlier. Is listening not part of participating in a conversation or engagement? Didn't the Speaker listen to what Mr Malema was saying at the time you were thinking of sitting down?

He asked Mr Ceza’s opinion if the Speaker had not responded to Mr Malema because earlier she said she is not going to entertain points of order from EFF Members or something to that effect.

Dr Ndlozi asked Mr Ceza if Parliament does not recognise party leaders or whips of opposition parties as part of the Parliament structure; if Mr Ceza's view was that Parliament does not respect political party constitutions or admissions as official political parties as the IEC does – to which Mr Ceza as an ordinary member has to recognise the directive, the guidance of whips or party leader. Is that not part of the organisational structure and culture of Parliament?

Dr M Tlhape (ANC) asked Mr Ceza on raising points of order if the Speaker has the authority to determine when to take or not to take points of order.

She noted Mr Ceza’s speculation that the Speaker may have been targeting the EFF Members. When the Speaker said “your people”, were those EFF Members disruptive at that point?

Dr Tlhape asked Mr Ceza if it is procedurally correct to speak after the Speaker ruled that she does not take any further point of order.

Dr Tlhape asked Mr Ceza when Mr Lamola had spoken unrecognised, did he have a dialogue with the Speaker or when he was reprimanded, he sat down and remained calm.

Mr Ceza’s response
Mr Ceza commented on the Speaker’s remark “your people”. He was the only one that the Speaker was referring to there in Parliament and his people in Parliament are the EFF. So that question does not arise which people were disruptive or not. He was there because of the EFF and the people who voted for the EFF in large numbers and are still going to vote for it in 2024 to usher in economic freedom in our lifetime.

Mr Ceza said that he did not question the authority of the Speaker. There were many instances where he demonstrated restraint in what the Speaker said, even when she ignored him earlier on.

Mr Ceza said the recourse depended on the Rules and his legal team will explain those Rules. He was appearing before the Committee to answer questions pertaining to the factual evidence but himself is not a qualified lawyer.

Mr Ceza confirmed to Dr Ndlozi that as an ordinary Member of Parliament or a junior Member of Parliament, they had to adhere to the principles of caucuses of Parliament. Their whips communicate with them on the things that they must do. To his knowledge, there are party whips that sit in Parliament and deliberate on the programme of Parliament. In that sense, he was certain that Parliament recognises such organisational structures of Parliament as political parties.

He replied to Dr Ndlozi that as far as he was aware there was only one Speaker in the House.

Mr Ceza referred Mr Mlenzana’s question to his legal representatives on the particular rule pertaining to warning. Further, he referred to Google where he found that the definition of defiance is open resistance and bold disobedience which he denied doing on that day.

Members did not have follow up questions.

Re-examination of Mr Ceza by his legal team
Adv Ka-Siboto: Thank you Chairperson. I'm saying the background to this question is that the reason you are different from other MPs which is why you were asked to leave and not the other ones is that you were not given an opportunity to speak. Now I'm drawing attention to page 280 and what you'll see at the top of page 280 is Malema MP speaking. He says, but this is nonsense that we speak, you tell us you throw us out. What do you mean by that? It is nonsensical. This is nonsense, it is nonsensical. This is what happens afterwards which is the relevant part. Gela MP whom I understand is an ANC Member then speaks, they are all nonsense, Malema, they are also nonsense, don't abuse our Speaker like that, Malema. Then only after that does the Speaker speak. Now in light of the fact that the allegation is that only you spoke without being recognised and in light of what I've just read to you, do you have a comment?

Mr Ceza: Yes, I do. It's being treated unfairly to drive a particular narrative; it also says that it is selective in how it listens to Hon Members who clearly showed that they were not recognised but spoke. But because…

Adv Ka-Siboto: Thank you. I accept your answer. I'm sorry I'm being rude I know I am just limited for time. I'm happy with the response you've given me. If you then go to 286, there you see the Speaker speaking, thank you honourable Malema and she goes on and on and on. Then Malema MP says, The report of the abuse of our females is a question... You then see the Speaker attempting to speak. Now the Speaker wants to address Mr Malema. She says the issue is… As she's speaking there's an interruption there. I'm told that it is the deputy chief whip of the majority party which is obviously the ANC. In fact, that's what the Hansard itself says. As the Speaker is about to address Mr Malema, she interrupts the Speaker and says, I have a right to speak as a Member of this Parliament, thank you very much Hon Speaker. According to our Rules, today's business is about questions to the President because the House… and so on she goes. The point taken there is, well I don't want to tell you what the point is. In light of the discussion that we're having, what you see there, well what I've read to you, do you have a comment?

Mr Ceza: Again Advocate, it displays a particular narrative that says that certain people have a right to speak in Parliament as and when they want to do so. Rule 92 says that Members of Parliament can raise a point of order at any time, any part of the sitting, that's all from me.

Adv Ka-Siboto: Thank you let's then go to page 299. What you see at 299 is Radebe MP speaks and he's got issues that he wants to address with the Speaker, points of order specifically, and the Speaker says absolutely nothing. You see what follows after Mr Radebe spoke, the Minister of Social Development, and I understand that be Hon Zulu, is also an ANC member. She says without anything coming in between the last point of order by Radebe MP addressing the Speaker and expecting the Speaker to make a ruling. Hon Zulu comes in and says, Hon Speaker, a point of order, I rise accordingly in terms of Rule 64 and then she actually raises her point of order. She is allowed to speak. So without being recognised – we don't see the Speaker engaging or speaking before Hon Zulu. There is no engagement with the Speaker before she speaks. Do you have a comment?

Mr Ceza: My only comment in one word is the unfairness of the application of the Rules.

Adv Ka-Siboto: Let's go to 317. You see Malema MP who speaks first at 317 and then you find again without anything coming in between the Minister of Justice and Correctional Services, Mr Lamola, says, Hon Speaker, Hon Malema is misleading the House that he has never been to a street bash. Firstly does this comment relate to the six golden questions that we're told that the engagement was about?

Mr Ceza: It does not; it talks about street bashes – totally outside the questions set.

Adv Ka-Siboto: So this comment has nothing to do with what the sitting was about?

Mr Ceza: Yes,

Adv Ka-Siboto: The second thing I want to ask you is in line with what you've been speaking about – the unfairness you're talking about. We see Malema MP speaks and then immediately after he spoke, Minister Lamola raises his point. Do you have a comment on that?

Mr Ceza: Again you find that Hon Lamola was allowed to speak while not recognised.

Adv Ka-Siboto: Last question, I want to ask you the questions that were put to you. You were called defiant, disrespectful, having no regard for the authority of the Speaker, you spoke without being recognised. That is how you're different from the other MPs which is why then it was justified that you're kicked out of the House. In light of these references I've given you of Gela MP, Zulu MP and Lamola MP; in light of what I'm saying you're being accused of and in light of the reference that I've given you, do you have a comment?

Mr Ceza: I do have a comment. Those aspersions that were cast against me that I'm defying her, all that could have easily been given to the Members that were given a chance to speak when not recognised by the Speaker. During the whole process, I had displayed restraint. I refrained from time to time up until that moment when the Speaker asked actually who is calling the Speaker. Then I spoke on Phala Phala and I was kicked out of the House. My understanding is that we can't treat Members of Parliament from the point of view of from where they are coming – be it ideologically, be it from the party they are coming from, or whatever. They must be treated equally. If I had caught the attention of the Speaker earlier on, I would have said that which I said at the latter part.

Adv Ka-Siboto: Thank you so much, Hon Ceza. I have no further questions for the MP.

Cross examination of Mr Paulsen MP by his legal counsel
The Chairperson welcomed Mr N Paulsen (EFF) to the Committee and asked him to take an oath before the cross-examination commenced.

Adv Ka-Siboto: Thank you very much Chairperson. Good afternoon, Mr Paulsen. I'm going to ask that you switch on the mic. You've been sitting since yesterday morning in relation to the subject matter; you know what it is about?

Mr Paulsen: Yes.

Adv Ka-Siboto: The charge that has been brought against you relates to facts that occurred leading up to you being evicted. In essence, the charge against you is that you prohibited the security personnel of Parliament from evicting a Member of Parliament, Mr Ceza, who obviously just came before you. What is viewable from the footage of the day is that you get in between the Protection Services personnel and Mr Ceza. Just advise this Committee as to what happened.

Mr Paulsen: Well, there was an engagement between the commander in chief and the Speaker concerning Hon Ceza. I just felt that while that engagement is underway that we should wait for it to finish first before the bouncers are allowed to descend on us.

Adv Ka-Siboto: Yes, and you would have observed, I imagine, the engagement, I dare say, between the Initiator and Ceza MP about what 'engagement' is and you're using that term as well. Perhaps if you can explain to this Committee what you mean by there was an engagement between Malema MP and the Speaker.

Mr Paulsen: It's a matter of semantics but what the commander in chief was doing was appealing to the Speaker for consistency. Other Members of Parliament were warned that should this happen, she will ask them to leave or she will have them evicted from the House. The President appealed to the Speaker to afford Ceza the same treatment, warning before asking him to leave the House. That was underway and I just didn't think it was right for the bouncers to come in or the Parliament Protection Services to descend on us at that stage. But it was never my intention to obstruct.

Adv Ka-Siboto: Is there anything you said to what you referred to as bouncers? I'd rather not fall in the same trap and say the same. The Protection Services of Parliament.

Mr Paulsen: Well their behaviour has been that of bouncers. They're not there to listen; to reason. They are there to follow instructions of the Speaker. I don't think they even knew who they are going to remove. They just came for me and I wasn't there to prevent them from taking anyone but really to tell them that there's something under way, wait a minute, stop being in such a hurry.

Adv Ka-Siboto: So is that what you said to them?

Mr Paulsen: Yes, exactly.

Adv Ka-Siboto: Last thing I want to ask you, we've now observed the video, not only were you talking, I observed you stretching out your hand. Did you stretch out your hand?

Mr Paulsen: Just to ask him to stop. You know when you ask someone to stop, that’s how you ask them to stop it, you know, they are advancing, what’d you do?

Adv Ka-Siboto: Thank you Mr Paulsen. Thank you Chair. Those are all the questions I have for Mr Paulsen.

Cross-examination of Mr Paulsen by Initiator

Adv Golden: Thank you, Chair, and I undertake to be as succinct as my colleague. Good day Mr Paulsen.

Mr Paulsen: Good day to you Advocate.

Adv Golden: Mr Paulsen. There are really just two propositions that I want to put to you in relation to your charge sheet. We've seen the video footage. I'm sure you're very familiar with the video footage; the Committee is familiar with the video footage. It is there. We can all watch and see what happened on the day. Charge two, as my learned friend correctly pointed out, is really the main charge against you. Charge two is that you as a Member of Parliament and during the sitting on questions, hindered or obstructed a staff member in the execution of the staff member's duties by physically intervening in the removal of Hon Ceza. So it really is about the fact that you physically intervened and prevented Protection Services, as you call them bouncers, from fulfilling the role. I put it to you that that is exactly what happened. I'm not going to say anything more about it because it is on the video clip where you physically intervene.

Mr Paulsen: Well I intervened in the sense that intervening and obstructing are not quite the same thing. I intervened and said, look there's something underway. Allow it to run its course and you can come and do your work, because the commander-in-chief was appealing to the Speaker to afford Khanya Ceza the same treatment as she did the other MPs by warning them before asking them to leave. So there has to be consistency. That's the important thing about rules, it's not just knowing it but also applying it consistently and this was not happening on the day in question. I think the commander-in-chief’s appeal to also warn Hon Ceza was actually an appeal for consistency as well.

Adv Golden: You've heard what I've said in cross examination to your colleague, Mr Ceza. I will repeat it and put it to you that there was no engagement in any manner or form between Mr Malema and the Speaker regarding the issue of a warning or fairness or consistency. Neither the video footage nor the Hansard record bears that out, would you say?

Mr Paulsen: Well it's how you interpret engagement. There was an attempt where the commander-in-chief appealed to the Speaker and it's there in the Hansard. It's your interpretation that that doesn't count for anything. The fact that the commander in chief is in the Hansard and is asking Speaker to warn Ceza in the same way she's warned other Members before asking them to leave.

Adv Golden: At that point the Speaker had ruled that Hon Ceza must leave the House. She did not recognise Mr Malema on the issue now of the warning. She did not speak to him about the issue of the warning. She persisted and repeated her ruling that Hon Ceza must please leave the House. So on what basis then did you defy and disrespect the authority of the Speaker in the face of a repeated ruling?

Mr Paulsen: Rule 79(2) says we can raise a point of order at any time. The fact that the Speaker said no points of order. That is against the Rules.

Adv Golden: Sorry Mr Paulsen, that's a different issue.

Mr Paulsen: No there was an attempt to raising a point of order but the Speaker wasn't willing to listen to anyone. That is why that appeal came through Mr Malema, Speaker, can’t you warn Ceza in the same way you've warned other Members.

Adv Golden: Mr Paulsen, that is not the issue here. It's not the issue about the point of order. The issue is that the Speaker had made a ruling. She repeated that ruling and you defied that ruling. You defied that ruling.

Mr Paulsen: There were repeated appeals to first warn him and those appeals should have been exhausted first. That would have brought calm to the House and we could have continued as normal.

Adv Golden: So you would rather prefer to listen to your commander in chief in the House than the Speaker.

Mr Paulsen: No, I would rather prefer the Speaker be consistent and fair.

Adv Golden: So the issue of fairness, did you raise a point of order and say that it was unfair? You didn't raise a point of order. I see it nowhere in the Hansard.

Mr Paulsen: It was raised before; the commander-in-chief tried.

Adv Golden: Mr Paulsen, we are now focusing on your conduct. Nowhere do I see that you raised a point of order. All I see in Hansard and on the video – as the Committee will – is that without raising anything, you decided to listen to your commander in chief…

Mr Paulsen: No I didn't and then…

Adv Golden: If you permit me to finish. I'm suggesting to you, I'm putting this proposition to you. You prefer to listen to your commander in chief than the Speaker and you physically intervened…

Mr Paulsen: No, I think what you imply…

Adv Golden: I am not finished, Madam Chair.

Chairperson: Hon Paulsen, for the smooth running of this proceeding please give her a chance to speak and then you'll also be allowed to respond.

Adv Golden: Thank you. You proceeded to physically intervene in the removal of a Member which I put it to you in terms of the Rules amounts to gross disorderly conduct, in terms of Rule 69(b). I'll read it to you Mr Paulsen. Grossly disorderly conduct. Members may not engage in grossly disorderly conduct in the House and its forums including in any manner whatsoever physically intervening, preventing, obstructing or hindering the removal of a Member from the House who has been ordered to leave the House.

Mr Paulsen: OK let me put it this way. I stood up, I engaged him orally, not physically, so by me speaking to someone, that’s not gross disorderly conduct. Gross disorderly conduct is actually ordering Parliamentary Protection Services to physically remove. That is gross disorderly conduct. You have no idea how these bouncers behave. But anyway that is your interpretation; I get what you imply that I listen to someone else. I followed my own mind, there was something, there was a matter being appealed, regardless as to who was appealing the matter. I felt that we let that appeal run its course before we resort to Parliamentary Protection Services.

Adv Golden: Just to close off the point and this will be my last question. The first charge relates to a contravention in terms of Rule 69. I've already pointed out to you 69(b) on which charge two is based read together with Rule 73(5). A further transgression is that you deliberately created serious disorder or disruption in the House. You repeatedly undermined the authority of the Speaker who was the presiding officer. You refused to obey her rulings, using or threatening violence against a Member or other person that relates to the physical intervention and the pushing away of the…

Mr Paulsen: There was no threats of violence there.

Adv Golden: Can I just finish?

Mr Paulsen: Okay.

Adv Golden: Using, threatening violence against a Member or other person and acting in any other way to the serious detriment of the dignity, decorum or orderly procedure of the House. So my final…

Mr Paulsen: A lot of words to describe absolutely nothing, really? There was. Show me the Hansard, where are the threats? There's no such thing.

Adv Golden: Mr Paulsen…

Mr Paulsen: This is someone's delusion. There really are no threats if they're not in the Hansard. It's delusion, so whose delusion is it, yours or the Speaker's?

Adv Golden: You know, Mr Paulsen, for purposes of moving forward, I am prepared to accept that no verbal threats were made

Mr Paulsen: No, but that's what you implied, threatening someone's life. How do you threaten someone's life?

Adv Golden: Mr Paulsen, can I just read it to you again? Just to close this one – using or threatening violence against a Member or other persons.

Mr Paulsen: I'm asking you show me where in the Hansard where does it say there was a threat of violence.

Adv Golden: Mr Paulsen, I ask questions, you don't ask the questions. I’m going to read to you again 69(e).

Dr Ndlozi: But what if he doesn't understand, what if he doesn't understand, what must he do? You are badgering the witness.

Chairperson: Order, you are not allowed to do that.

Adv Golden: Using or threatening violence. So Mr Paulsen, I'll give you the benefit of the doubt. It's not direct verbal threats…

Mr Paulsen: So you're saying that charge still stands?

Adv Golden: Yes, because it also seems using any threatening violence. So…

Mr Paulsen interrupted again.

Adv Golden: Mr Paulsen, can you please just give me a chance?

Mr Paulsen: OK alright.

Adv Golden: I have to do this. This is what the procedure is for.

Mr Paulsen: OK.

Adv Golden: I'm putting it to you that the video evidence clearly shows that not only did you physically intervene, you pushed the PPS members out of the way. You tried to push them back so that they don't remove Mr Ceza. That is what the video evidence shows.

Mr Paulsen: Look at it again. I'm standing, I'm trying to talk to them and they start grabbing me. What must I do? Allow myself to be grabbed?

Adv Golden: You're then obstructed them from doing their job?

Mr Paulsen: I didn't obstruct them. There's no way; they grabbed me when I stood up. They grabbed me and threatened me. Now you're saying that I've committed violence. I was the one being 'moered' and you telling me that I've committed violence. In what world do you live in to see a man being beaten up and say he threatened violence?

Adv Golden: Mr Paulsen, I'm going to leave that and we will argue that.

Mr Paulsen: But I want you to withdraw that particular charge saying that I threatened violence.

Adv Golden: Mr Paulsen

Mr Paulsen: You're not listening to me. I'm telling you and I'm repeating it. I did not beat, I did not threaten anyone with violence. If I did, there would have been people in hospital. I was the one allowing myself to be beaten up all the time. I don't know those people, they are following instructions from the Speaker to unleash violence on Members of Parliament. And you're telling me that I was starting violence. Me the one that was being beaten up, most of the time after these altercations, I have to go to a hospital because I allow myself to be beaten up because those Parliamentary Protection Services are used by the Speaker to beat black people. You're telling me I'm the one that threatened violence?

Chairperson: Initiator, we'll proceed so that we close this area.

Mr Paulsen: No, no, I want you, I want you to withdraw that charge, I was the one…

Adv Golden: Sorry Madam Chair?

Chairperson: I believe the proceeding must also continue by listening to each other. You will be allowed to respond after the Initiator has put her points, but interrupting her doesn't assist us because we want to get the sense of what transpired. We want also to hear your response on this matter.

Mr Paulsen: Chairperson, I’ve refuted the charge. I'd like to know does the charge still stand?

Adv Golden: Madam Chair, may I proceed?

Chairperson: Yes, proceed, Initiator.

Adv Golden: Thank you. Mr Paulsen, you are also accused of refusing, defying the Speaker when she asked you to leave.

Mr Paulsen: How did I refuse? They dragged me out there. I'm going willingly. I even… they even dragged me on the way out.

Adv Ka-Siboto: Chairperson, sorry, I'm so sorry to do this, Chairperson. I am not disputing that it happened; but it would give me greater comfort if you could be given the reference of where the Speaker asked Mr Paulsen to leave. I'm not saying it didn't happen; but I'll be comfortable if I could see that in the record.

Adv Golden: If you can look at page 342 where the Speaker says Hon Paulsen you may as well leave. This was immediately after Mr Paulsen intervene to protect Hon Ceza.

Adv Ka-Siboto: I'm sorry again. That to me reads more like a ruling rather than an invitation for him to leave. It’s a ruling for him to leave rather than appealing to him to desist from his conduct.

Adv Golden: I'm very happy to argue that in oral argument. I will leave that point.

Mr Paulsen: But the accusation that I refused to leave, I didn't. She just said leave and then I'm leaving already and she's telling me to leave. It's actually unnecessary for her to have said that; they were removing me already.

Adv Golden: Chairperson, as I said, I will deal with it in oral argument, thank you. That's my questions.

Committee Members’ questions to Mr Paulsen
Mr Mlenzana asked Mr Paulsen what his understanding of defiance and contempt were in the context of this hearing.

Mr Paulsen did not see the relevance for contempt here but defiance is if you refuse to obey an instruction. He doesn't think that was in any way the truth.

Ms Dlakude asked Mr Paulsen when the Speaker ordered him to leave the House, did he willingly walk out or was he forced to leave the House, or removed by the Sergeant at Arms or reported to Parliamentary Protection Services?

Ms Dlakude said that Mr Paulsen, as a Member of Parliament and a whip in his own party, should know better about the Rules. Would Mr Paulsen describe that there was disruption by some EFF Members in the House?

Mr Paulsen said that when the Speaker was ordering him to leave, even before that, Protection Services were already dragging him out by their own volition. Also, Members of the EFF were acting within their rights to hold the President to account. The fact that it descended into chaos is surely as a result of the Speaker's inability to apply the Rules or to even understand the Rules and to apply them fairly. If one looks at all the points of order that were raised by Members of the ruling party without consequence and the few points of order raised by the EFF. Three Members are in the discipline hearing now; no ANC people. And it is the ANC majority that is deciding our fate. I don't think that the EFF Members acted outside what is allowed by the Rules of Parliament.

Dr Ndlozi asked if Mr Paulsen disagreed with the Initiator on the charges of threats of violence because the Initiator did not provide evidence of the threat of violence on his part.

He asked Mr Paulsen if, in his opinion, the Speaker had broken or undermined the Rules of Parliament in how she dealt with him.

He asked Mr Paulsen to elaborate in what way was the Speaker not fair, perhaps not only dealing with him but also with what he referred to EFF Members.

On defiance, he asked Mr Paulsen as a law-abiding citizen and Member of Parliament who took an oath, if it is not Mr Paulsen’s constitutional duty to defy an unjust law. If the Speaker’s ruling is unjust in that Mr Paulsen is being kicked out of the House while EFF Members were holding the President to account as an elected Member of Parliament.

Dr Ndlozi noted that there was this impression that inconsistent standards were applied to MPs. He thus asked Mr Paulsen if the Speaker shouldn't appear in Parliament seeing that the Speaker seems not to have been consistent. She must also come and explain her own actions.

Mr Paulsen’s response
Mr Paulsen replied that the Initiator says he threatened violence but there is nowhere in the Hansard or is there any proof that he has committed violence. There's also nothing on the video that says that he was pointing at someone. So he needed to understand where this idea of him threatening violence on anyone comes from. He was trying to intervene and ask Protection Services to give him and his party members an opportunity to exhaust the current process where the commander in chief was appealing to the Speaker to give a warning before removing Members. The process had not been exhausted and suddenly the protection officers just started grabbing him. He tried to resist it and said, “Wait, I'm not the person here that should be dragged out or that's supposed to be dragged out. I'm trying to assist the situation”. But of course they heard nothing about it. As they're dragging him out, the Speaker says, Hon Paulsen, leave the House.

In fairness, he believed it would help a lot in the House if there were actually presiding officers such as Mr Frolick who understands the Rules and who can apply Rules with no favouritism. Mr Paulsen did not think that the same could be said of the Speaker of the National Assembly. He listed the various examples. For instance, the Chief Whip of the EFF stands, the Speaker asks why are you standing; you don't have to stand, sit down. Mr Paulsen pointed out that the Rules do say that you must stand when you're about to raise a point of order.

He was not comfortable with the decision where a Member of Parliament raises a point of order and is told just leave. Also, the Speaker says no more points of order. Rule 79(2) states that you may raise a point of order or a point of privilege at any time. For Speaker to say that Members may no longer raise any points of order; it's just denying the right of Members of Parliament to participate in what's happening in Parliament and that's wrong. If the Speaker was to testify or to come and be a witness in these hearings, those inconsistencies would be raised. It is unfair that the affected Members were appearing before the Committee based on charges which were brought by someone who's very inconsistent in applying the Rules. So when someone is inconsistent when the Rules are broken, when laws are being broken by an individual and Members want to hold them accountable and people are denied that opportunity, defiance is the only way. There is still that very valid issue that the President was asked about foreign currency on his Phala Phala farm. EFF Members wanted to hold him to account and the Speaker did everything humanly possible to prevent the President from being held to account. The only way EFF Members had was to defy and do so in a very respectful manner. The Speaker and everyone else who wants to shield the President from accountability illegally holding large sums of foreign currency which has not been declared are the ones that are holding this hearing.

The Chairperson noted Mr Paulsen’s input and invited Dr Tlhape to ask questions.

Dr Tlhape noted that the charge that is put before Mr Paulsen is obstruction of Parliamentary Protection Services. Obstruction means impeachment which means he was impeding them from that action. She asked if his action of stretching out his hands obstructed Parliamentary Protection Services from performing their duties.

She asked if someone stretches behind them or if a scuffle ensued, would that spark violence?

Mr Paulsen replied that Dr Tlhape said that he had to protect Mr Ceza and described it a real embarrassment for the ANC run government that opposition party Members feel the need to protect themselves from physical harm of the Parliamentary protection services because the only violence he knew in that Parliament is the violence unleashed by the Parliament protection services on male and female Members of the EFF. He denied that he was threatening. He was asking them to stop until this process that was underway to conclude.

The Chairperson noted that this brought an end to the day's session . The hearing would continue on Thursday 14 December at 10am.

Adv Ka-Siboto reminded the Chairperson that he was to re-cross examine Mr Paulsen.

Adv Ka-Siboto reminded the Chairperson that Mr Xaba’s hand was up.

[9:20:49 Mr Xaba is unclear on first point]

Mr Xaba asked Mr Paulsen what is being projected about Protection Services and if that conduct equals to Hon Member. There had been many other public hearings which Mr Paulsen had attended. He wondered if Parliamentary Protection Services was violent.

He asked if Mr Paulsen is pleading guilty of being violent.

Mr Paulsen did not see what other instances outside of 30 August had to do with 30 August as he took each day on its merits.

Mr Paulsen replied that the Members are hallucinating. There's no way where he is guilty of anything. No sane person would find him guilty of anything. He denied that he plead guilty to charges that were refuted. He accused Mr Xaba of sleeping on Zoom.

Re-examination of Mr Paulsen
Adv Ka-Siboto: Thank you Chairperson. Mr Paulsen, there was a suggestion that the Speaker had asked you to leave the House and you refused, objected to that question. And then it was as if for argument, and then the Hon deputy chief of the African National Congress then made a similar claim where she says when you were asked to leave by the Speaker. Now what I want to ask you is did the Speaker ask you to leave?

Mr Paulsen: No, she didn't ask, she said you might as well leave because I was being taken out already without the instruction.

Adv Ka-Siboto: In fact let's go to 342 which is alleged to be the request by the Speaker for you to leave. Right in the middle, you are told that is when the Speaker asked you to leave. Let me read what it says Hon Paulsen, you may as well leave, what you understand that to be?
Mr Paulsen: She's telling me to leave.

Adv Ka-Siboto: Thank you Chairperson, thank you Mr Paulsen, I've no further questions.

The Chairperson adjourned the meeting.