Parliament of Republic of South Africa vs Hon F Shivambu and 19 others - Suggestion of penalties by Mr Randall van Voore

Meeting report

Introduction by the Chairperson
The Chairperson welcomed Members to the hearing. On 03 November, the committee deliberated on the evidence presented by Mr Randall van Voore, the initiator in the disciplinary process and came with the following resolutions on the following charges:

Refusing to take his/her seat
It is alleged that you are guilty of conduct constituting contempt of parliament in terms of Section 13 (a) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (the Act) in that as Member of Parliament and during the Question to the President in the National Assembly on 21 August 2014, you contravened Section 7 (a) of the Act  by improperly interfering with or impeding the exercise or performance by the House of its authority or functions by refusing to take your seat. This conduct impeded the House from performing its functions by exercising oversight to the executive by posing questions to the President and for continuing its business for that day.

This charge was laid against Mr F Shivambu (EFF), Mr R Ramakatsa (EFF), Mr G Gardee (EFF), Ms K Litchfield-Tshabalala (EFF) and Mr M Ndlozi (EFF).

Seven Members found them guilty, one did not. The Committee therefore found the above named Members guilty.

Refusing to leave the House when ordered to do so by the Speaker
It is alleged that you are guilty of conduct constituting contempt of parliament in terms of Section 13 (a) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (the Act) in that as Member of Parliament and during the Question to the President in the National Assembly on 21 August 2014, you wilfully refused or failed to obey Rule 51 read together with the Rules of the National Assembly in that you failed to withdraw from the House when ordered to do so.

This charge was brought against Mr F Shivambu, Mr R Ramakatsa, Mr G Gardee, Ms K Litchfield-Tshabalala, Mr M Ndlozi and Mr J Malema (EFF). Five Members found them guilty, four did not. The Committee therefore found them guilty.

Preventing Mr B Holomisa from speaking
It is alleged that you are guilty of conduct constituting contempt of parliament in terms of Section 13 (a) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (the Act) in that as Member of Parliament and during the Question to the President in the National Assembly on 21 August 2014, you contravened section 7b of the Act by improperly interfering with the performance of a Member of his or her functions as a Member in the following manner: When the Speaker requested Mr BH Holomisa, a Member of Parliament to pose a question, being a supplementary question to the President, your conduct prevented Mr Holomisa and other Members of Parliament who might have wished to speak or might have wished to ask the President further questions thereby preventing them from performing one of their functions as Members of Parliament.

This charge was brought against Mr F Shivambu, Mr R Ramakatsa and Ms K Litchfield-Tshabalala.

Seven Members found them guilty, one dissented. The Committee therefore found them guilty.

Taking part in a disturbance
It is alleged that you are guilty of conduct constituting contempt of parliament in terms of Section 13 (a) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (the Act) in that as Members of Parliament and during the Question to the President in the National Assembly on 21 August, you contravened Section 7 (c) of the act  by creating or taking part in a disturbance within the precincts of Parliament while the House was meeting, by inter alia, shouting, and or banging on tables, and or refusing to obey the Speaker’s instructions in a grossly disorderly manner, thereby interfering with or disrupting the proceedings of the House forcing the Speaker to suspend the proceedings temporarily and ultimately adjourning the sitting for the day.

This charge was laid against Mr F Shivambu, Mr R Ramakatsa, Ms K Lithfield-Tshabalala, Mr G Gardee, Mr M Ndlozi, Mr J Malema, Ms E Louw, Ms R Mashabela, Mr N Matiase, Ms O Maxon, Ms M Moonsamy, Mr J Mngxitama.
Five Members found them guilty, three did not. The Committee found them guilty as charged.

Remaining in the chamber after the House was suspended.
It is alleged that you are guilty of conduct consulting contempt of parliament in terms of Section 13 (a) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (the Act) in that as Member of Parliament and during the Question to the President in the National Assembly on 21 August 2014, you contravened Section 7 (a) of the Act  by improperly interfering with or impeding the exercise or performance by the House of its authority or functions by remaining in the Chamber after the sitting of the House had been temporarily suspended by the Speaker so that you could leave, alternatively be removed from, the Chamber, in order for the House to continue with its business for that day. Your refusal to leave the Chamber resulted in the House being adjourned for the day.

This charge was laid against all the against all the 20 affected EFF Members namely Mr F Shivambu, Mr R Ramakatsa, Ms K Lithfield-Tshabalala, Mr G Gardee, Mr Q Ndlozi, Mr J Malema, Ms E Louw, Ms R Mashabela, Mr N Matiase, Ms O Maxon, Ms M Moonsamy, MrJ Mngxitama, Mr B Joseph, ms S Khawula, Ms A Mashobeni, Mr S Mbatha, Mr K Morapela, Ms V Nqweniso,Ms P Ntobongwana and Ms P Sonti.
Six Members found them guilty, two did not. The Committee found them guilty as charged.

Speaking when not called to do so by the Speaker
It is alleged that you are guilty of conduct constituting contempt of parliament in terms of Section 13 (a) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act) in that as Member of Parliament and during the Question to the President in the National Assembly on 21 August 2014, you will fully failed and /or refused to obey rule 72 of the Rule of the National Assembly by speaking when you were not called upon to do so by the presiding officer that the Speaker without recognising you.

This charge was laid against Mr F Shivambu, Mr R Ramakatsa, Mr G Gardee, Ms K Litchfield-Tshabalala, Mr J Malema.
Six Members found them guilty, two did not. The Committee found them guilty.

Failing to take your seat when the speaker rose
It is alleged that you are guilty of conduct constituting contempt of parliament in terms of Section 13 (a) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act) in that as Member of Parliament and during the Question to the President in the National Assembly on 21 August 2014, you wilfully failed and/ or refused to obey rule 49 o0f the Rules of the national Assembly by failing to resume your seat when the Speaker rose while you were speaking or offering to speak and thereby preventing the Speaker from being heard without interruption.

The above charge was laid against Mr Shivambu and Mr Ramakatsa.
Five Members found them guilty, three did not. The Committee found them guilty.

On 04 November, the affected Members were emailed the findings and hand delivered on 05 November 2014.

Proposal of penalties on Members found guilty of contempt of Parliament by Mr Randal van Voore
Mr van Voore said the contempt of Parliament charges which the affected Members were found guilty was indeed serious. It was not an exaggeration to suggest that the allegations were indeed serious. He could not think of any serious charge than preventing Mr B Holomisa from asking a supplementary question and taking part in a disturbance.

Section 12 (5) of the act read that when a House finds a member guilty of contempt, the House may, in addition to any other penalty to which the member may be liable under this Act or any other law, impose any one or more of the following penalties: a formal warning; a reprimand; an order to apologise to Parliament or the House or any person, in a manner determined by the House; the withholding, for a specified period, of the member’s right to the use or enjoyment of any specified facility provided to members by Parliament; the removal, or the suspension for a specified period, of the member from any parliamentary position occupied by the member; a fine not exceeding the equivalent of one month’s salary and allowances payable to the member concerned by virtue of the Remuneration of Public Office Bearers Act, 1998 (Act No. 20 of 1998); the suspension of the member, with or without remuneration, for a period not exceeding 30 days, whether or not the House or any of its committees is scheduled to meet during that period.

It was up to the Committee to impose one or a combination of the above named penalties. Section 12 (9) reads a member may not be suspended under subsection (5)(g) unless the House has found that  the member is guilty of a serious or repeated contempt; and none of the other penalties set out in subsection (5) will be sufficient. The contempt to which the affected Members had been found guilty warrants the seriousness of the penalties. The consider may consider the seriousness of the charges of contempt, nature and severity of their conduct, an acknowledgement of remorse and wrong doing, cooperation on the work of the Committee and the interests of Parliament. There can be no serious suggestion that the contempt of that the contempt to which the affected Members had been found guilty was less than serious.

The Members that refused to take their seats, refusal to withdraw immediately from the chamber and preventing Mr Holomisa to speak knew that there contravening the rules. On a number of occasions, the affected Members deliberately chose to disobey the Speaker. The Speaker explained the process of supplementary questions on the start of the sitting and midway during the sitting. In the person of Mr Shivambu, he was heard saying “we have dealt with the issue of the rules. We have that book as well. We know those things”. This confirms the on boarding sessions for new and returning Members to familiarise themselves with the rules. There can be no suggestion that the affected Members have known about the rules might have mended their ways and this becomes an aggravating circumstance.
The contempt was serious for Members found guilty of failing to resume their seats when the Speaker rose, speaking when not called to do so, creating and taking part in a disturbance whilst the House was meeting and remaining in the chamber after the sitting had been temporality suspended.. The affected Members conducted themselves in a grossly disorderly manner, in a deliberate and intentional manner. Having it been the case that the Members were engaging in a robust debate, one could think that could have been a mitigating factor that would warrant a less severe penalty. But the conduct did not allow any other voice to be heard that it would warrant a very severe penalty. The nature of contempt was serious described by witnesses who gave evidence before the Committee as unprecedented in Parliament. The cumulative effect of the conduct of the affected Members was so gravely that Parliament could not continue with its business on 21 August 2014 which becomes an aggravating circumstance that would warrant a sufficiently serious penalty.

When the Committee began its work, the affected Members were present on 07 October and left without making a plea. The Chairperson then made a plea of not guilty on their behalf and the Committee proceeded with its business. The fact that the affected Members did not participate in the work of the Committee, lack of acknowledgement of wrong doing and not showing remorse makes them aggravating factors. The affected Members did not come before the Committee and said they might have acted out of frustration. The affected Members rather elected not to participate in the work of this Committee after making unfounded claims in the presentation made by Mr Malema. The Members found guilty of serious charges under the rules that Members have imposed collectively and willing upon themselves. The lack of acknowledgement of wrong doing would present itself as an aggravating factor.

The Committee might also consider if there was any previous incidences involving the affected Members. While there were no previous incidences by the Members conducting themselves in a similar fashion prior to 21 August 2014, that factor was outweighed by the seriousness and severity of their conduct which was intentional and deliberate. Notwithstanding earlier cautions by the Speaker on 21 August to reconsider their conduct, the affected Members persisted acting in a gravely disorderly manner. They also acted in defiance of the Sergeant at Arms.

The Committee might consider interest of Parliament and the public at large by engaging in a robust and orderly debate. The conduct of the Members was disruptive of orderly and robust debate, disrupted the proceedings of the House, and the interests of Parliament can never be advanced by such conduct. There was not a jot of evidence before the Committee of previous comparable incidences such as that of 21 August. Witnesses described the events of 21 August 2014 as unprecedented and Members could not be held ransom by the conduct of a few Members.
There were three groups of the affected Members.

The first group consists of Mr F Shivambu, Mr R Ramakatsa, Mr G Gardee, Ms K Litchfield-Tshabalala, Mr M Ndlozi and Mr Malema consists of Members found guilty of many charges. The contempt of the Members taken individually would warrant a serious penalty. Anything short of serious penalty will mean that the rules of the National Assembly may be ignored, absolved in breach and transgressed without fear. Adopting anything less serious was highly impermissible on the facts that serve before the Committee. “My work must start with facts and end with facts”. The most serious sanction would be suspension without salary and the least was a verbal warning according to the Act.

The second group consist of Ms E Louw, Ms R Mashabela, Mr N Matiase, Ms O Maxon, Ms M Moonsamy, Mr J Mngxitama was found guilty of two charges of contempt. The charges were serious-taking part in a disturbance and remaining in the chamber when it was suspended that would a sufficient penalty/penalties. They acted intentionally, were not open to persuasion, and no amount of plea by the Sergeant at Arms would persuaded the Members to reconsider their conduct and the Members occupied the chamber for some time after the sitting was suspended. So virgin were the facts, even though unglamorous and unexciting that they would call a sufficiently serious penalty. Giving a light sentence will sending a wrong message on the rules of the National Assembly that Members voluntarily imposed upon themselves.

The last group consists of Mr B Joseph, Ms S Khawula, Ms A Mashobeni, Mr S Mbatha, Mr K Morapela, Ms V Nqweniso,Ms P Ntobongwana and Ms P Sonti were found guilty of remaining in the chamber when the House was temporality suspended. Their conduct was different from the other groups and this must be taken into account. Nonetheless, the contempt was serious that it would warrant a serious penalty.
The Act made provisions for one or more penalties. The Committee must take into account the seriousness of the contempt, nature and consequences of conduct, and the differences of the charge as against the Members.

The Chairperson thanked Mr van Voore for adding serious value to the process, capacitating the Committee to conclude the matter. The presentation was thorough in detail and the Committee will need not make any research. The Committee will go behind closed doors to deliberate on the appropriate sanctions against the affected Members

Mr M Filtane (UDM) said that going behind closed doors was denying the public any opportunity to hear the deliberations of the Committee because the sanctions were read in its presence.

The Chairperson replied that this point was debated in the past and the Committee was to go behind closed doors to conclude on penalties.

The open meeting was adjourned for the closed meeting to continue.