Economic Freedom Fighters (EFF): Disciplinary Hearing on events at National Assembly Chamber, 21 August 2014

Meeting report

Economic Freedom Fighters (EFF): Disciplinary Hearing on events at the National Assembly Chamber, 21 August 2014
Mr Gary Rhoda, Parliamentary Legal Adviser, informed the Committee that this was not an ordinary Committee meeting, but rather a hearing in which the Committee Members would act as adjudicators in respect of the complaints against the Economic Freedom Fighter (EFF) members. The Committee’s report would then be forwarded to the National Assembly. He cautioned that, in order to avoid tainting, the Committee should not engage with any evidence before the initiator appointed for the hearing has lead such evidence as that would result it in not being regarded as credible.

Mr M Mdakane (ANC) called for an adjournment so that the Committee could acquaint itself with the legal advice. This was agreed to.

Upon resumption, the Chairperson said that on the previous day,although the charges had been read by the initiator, Mr J Malema (EFF) had requested the Committee to withdraw the charges and stop the proceedings. He was reading from a statement that the Committee had allowed, notwithstanding that there was no procedure specified in the Rules to cover this situation of making a statement on the withdrawal of  charges. The Committee then and suspended the hearing for ten minutes to consider the request. Prior to the Committee adjourning, Mr Malema had made it clear that whatever the ruling, the EFF would no longer take part in the proceedings in the Committee, and did not attend when the meeting resumed. After that short adjournment, the Committee decided that, after considering the recommendations, the Committee had no power to withdraw the charges, as that was a decision of the House, and for this reason and Mr Malema should direct his request to the Speaker.

The Chairperson added that Mr Malema’s statement on that day to the Committee could not be considered as evidence. He noted that today, the hearing would continue from the point where the EFF members had left the previous day's hearing. He noted that, in compliance with the Rules, he had entered a  plea of not guilty on behalf of the absent EFF Members.

Dr A Lotriet (DA) said that while she agreed on the matter of Mr Malema's statement, she wanted it placed on record, on behalf of the opposition, that the questions around procedure contained in Mr Malema's submission should not be dealt with before the Committee continued with the leading of evidence.

Mr Randall van Voore, Initiator to the hearing,then led evidence. He firstly called upon Mr Masibulele Xaso, Secretary of the National Assembly, to read into the record the minutes of the proceedings of 21 August 2014.

Mr Xaso gave a brief background on his work experience, and noted that he had started work in Parliament in 1994. He said that on 21 August 2014 he was at the Table in the House for the session on Questions to the President. This session was scheduled to last for two hours, in terms of the rules of the House, although it normally ended before that time. On this particular day, the business was suspended due to disorder. Six questions were scheduled to be asked. Questions 1 and 2 were dealt with. The first supplementary question and the President’s response for Question 3 were taken, before the House proceedings were suspended due to disorder in the House. After seven minutes, the Speaker asked the Members to vacate the House. The House resumed at 16.15pm and was adjourned at 16.17pm.

Mr van Voore asked Mr Xaso what the purpose of the hearings was.

Mr Xaso said the Speaker had asked the Committee to enquire into the conduct of some Members on 21 August, and whether this conduct amounted to contempt of Parliament. He said the Cabinet was accountable to Parliament. The session was to allow the President to respond to questions of national and international interest, and was held four times in the year, once per quarter.

Mr Xaso then read into evidence the wording of Rules 107 and 108 of the National Assembly, which dealt with questions to the President. Rule 111(5) was then read into evidence, dealing with the fact that questions were limited to six questions on the day. Rule 113 was read into evidence, and it was noted that this dealt with the length of time for replies and the supplementary questions which could be asked. He could not recall any time in the past when the allocated two hours were insufficient or inadequate for the six questions and four supplementary questions. Rule 116 and 117 were then read into evidence, noting that these dealt with questions submitted in writing, not for questions asked in the House. Rule 117 dealt with written replies.

Mr van Voore asked what a political party could do if it was not satisfied with an answer by the President.

Mr Xaso replied that parties could make a substantive motion in the House, and Members could raise their responses in the House.

Mr van Voore asked if Members were familiar with the Rules of the House.

Mr Xaso said it was his understanding that they were. All Members had completed a study module at the start of the Fifth Parliament to familiarise themselves with the rules. A booklet on the rules was available to Members, as well as an electronic version.

Mr van Voore then showed video footage of the events in the House on 21 August. The clip showed Mr Malema becoming agitated because he could not continue questioning the President. He claimed he had pressed the button to be recognised to speak, but was told by the Speaker he was number six on the list, effectively preventing him from raising his question.

Mr Xaso said that there used to be a time when questions were allowed when hands were raised. During the Third or Fourth Parliament a button-pressing system was introduced, whereby the names of people who pressed a button appeared on a screen. It was left to the Speaker’s discretion to give a fair spread of the questions amongst the political parties. Sometimes parties would check the screens to confirm that their names appeared. In regard to Mr Malema’s query, the Speaker had explained to him how she had approached the matter.

Mr van Voore said that there might appear to be a suggestion of exclusion.

Mr Xaso read into the record that the Speaker had said that only four follow up questions were allowed.

Mr van Voore said the Speaker had explained the rules a second time.

Mr Xaso read into the record that the EFF were listed at number six, and that Mr Malema had said that the pressing of the buttons by him, while the Speaker determined who would be allowed to raise the four supplementary questions, was problematic because they could be excluded.

Mr van Voore then moved on to another video clip in which Ms Z Dlamini-Dubazana (ANC) had held up a copy of the Rules book and Mr F Shivambu (EFF) responded to Ms Dlamini-Dubazana's point of order by referring to the Rules book and saying that the EFF Members too had the rules book.

Mr van Voore then asked who asked the President the first question, the first supplementary question and the other three supplementary questions.

Mr Xaso replied that Ms J Fubbs (ANC) had asked the question and the first supplementary question, as the Rules dictated. Mr S Swart (ACDP), Mr G Hill Lewis (DA) and Ms S Nkomo (IFP) had asked the three other supplementary questions.

He confirmed that the leader of the DA asked the second question and the first supplementary question, followed by Dr M Motshekga (ANC), Mr S Swart (ACDP) and Mr M Mncwango (IFP) who asked the remaining three supplementary questions.

Mr van Voore asked about the third question.

Mr Xaso said Mr Malema had asked when the President would respond to the Public Protector’s report on the Nkandla enquiry.

Mr van Voore then asked how questions appearing on the questions paper were captured by Parliamentary staff.

Mr Xaso said the question was the property of the Member asking it, and might need editing. Members were consulted and any changes had to be approved by them.

Mr van Voore asked if that question had followed the normal process.

Mr Xaso said he was not aware of any complaint related to the question on the question paper.

Mr Xaso then read into evidence that there was a signed copy of the question, which was substantively the same as that on the order paper.

A video clip was played and Mr Xaso observed that the President responded to the third question, and Mr Malema asked the first supplementary question. He observed that the President responded to Mr Malema’s first supplementary question. In answer to the request of Mr Malema to pose a further follow-up question, the Speaker had said that the four supplementary questions allowed for by the Rules had already been asked.

Mr van Voore noted that, as initiator, he had grouped the charges against the Members, into three groups, respectively of six, six and eight Members. The last group all faced one charge, the middle group also faced only one charge.

Mr van Voore said he would firstly note all the charges against Mr F Shivambu (EFF) and then Mr Xaso would confirm which of the charges related to other EFF Members.

Charge 1 against Mr Shivambu alleged that he had engaged in conduct constituting contempt of Parliament, in terms of section 13(a) of the Powers, Privileges and Immunities of Parliament Act (the Act) , by improperly interfering with and impeding the exercise by the National Assembly of its functions, by refusing to obey the instructions of the Speaker to take his seat.

Mr Xaso read into evidence section 13(a) and section 7 of this Act.

Mr Xaso then confirmed that charge 1 as already read out as it related to Mr Shivambu was also brought against Mr R Ramakatsa (EFF), Ms K Litchfield-Tshabalala (EFF), Mr G Gardee (EFF), and Mr M Ndlozi (EFF).

Mr Xaso read into the record that the Speaker noted that Mr Holomisa had the floor to ask the second supplementary question but Mr Holomisa did not get the chance to speak.

Mr van Voore said the Speaker had asked Mr Holomisa to speak three times.

Mr Xaso said that was a fair summary of the events. Mr Shivambu spoke but the Speaker said she did not recognise Mr Shivambu, and had noted that Mr Shivambu’s comments were not a point of order, as interruptions had to relate to the Rules. If the Speaker said that his remarks did not constitute a point of order, the Speaker was not obliged to take similar points and Members were expected to abide by the ruling.

Mr van Voore asked how many times the Speaker had attempted to move the debate forward, prior to telling Mr Shivambu that she would throw him out.

Mr Xaso said she had said he should take his seat, then she said he was not recognised, and then she said she would throw him out. She then attempted to recognise Mr Holomisa as the next speaker. He identified Mr Holomisa, from a video clip, as being the male voice that was heard attempting to speak.

Mr van Voore then moved to the charge against Mr Ramakatsa, which was the same as Charge 1 against Mr Shivambu, namely, relating to his refusal to take his seat and impeding the House’s functions of performing oversight of the executive. He noted a technical glitch in the unrevised Hansard, where the identity of a person was noted as "Mr Matiase".

Mr Xaso identified that this person should in fact be referred to as "Mr Ramakatsa". He said the Speaker had said twice that he should take his seat.

Mr van Voore then moved on to the charges against Ms Litchfield-Tshabalala, noting that the charge against her was the same as Charge 1 relating to Mr Shivambu.

Mr Xaso confirmed that. He said that Ms Litchfield-Tshabalala had been asked to take her seat, and she had said, “We want the money”. The Speaker had told her to take her seat, and she had then said, “Pay back the money”

Mr van Voore asked for confirmation that after the Speaker had said to Mr Shivambu “I’ll throw you out”, Ms Litchfield-Tshabalala, and not Mr Holomisa, had risen to speak.

Mr Xaso confirmed this.

Mr van Voore asked if Ms Litchfield-Tshabalala had raised a point of order.

Mr Xaso said that was not stated.

Mr van Voore noted that a voice said “Haibo!”

Mr Xaso confirmed that it was Mr Holomisa who had said this.

Mr van Voore argued that the word was used by Mr Holomisa to express that he felt affronted. He showed a video clip indicating Ms Litchfield-Tshabalala had not taken her seat.

Mr van Voore then moved to charge 1 against Mr Gardee, which was the same as Charge 1 against Mr Shivambu.

Mr Xaso read from Hansard that Mr Gardee addressed the Speaker, who told him she did not recognise him and told him to take his seat three times.

Mr van Voore asked if a point of order had been made by Mr Gardee.

Mr Xaso said he did not read in Hansard any reference to a point of order or point of procedure. His only assessment was that Mr Gardee said the issue was the money, and wanted to address the Speaker on that point. He could not comment on other issues.

Mr van Voore asked if Mr Gardee took his seat in response to the Speaker.

Mr Xaso said that he had not.

Mr van Voore moved to Mr Ndlozi’s charge, which was the same as Charge 1 brought against Mr Shivambu. He indicated that a number of people had risen, one of them being Mr Ndlozi and that the Speaker had asked them to take their seats, following which she asked for assistance in removing those Members who did not want to take their seats from the House.

Mr Xaso confirmed this.

Mr van Voore then moved to charge 2 against Mr Shivambu, and noted that this alleged that he was guilty of contempt of Parliament in that he had failed or refused to obey Rules 51and 53(1), and section 13(c) of the Act, in that he refused to withdraw from the chamber when ordered to do so by the Speaker. A video clip was shown where the Speaker asked the Sergeant-at-Arms to assist in removing members from the House.

Mr Xaso read these relevant Rules into the record, and said security was called, and the House was suspended to allow Members to leave.

Mr van Voore asked when a Speaker would take the step of throwing a member out of the House.

Mr Xaso said it could occur if a Member deliberately contravened a rule, disregarded the Speaker or a combination of both.

Mr van Voore asked if the Speaker was reasonably exercising her discretion and acting within her powers.

Mr Xaso said the Speaker was acting with due regard to Rules 51and 53(1)

Mr van Voore asked whether the conduct of Members were orderly.

Mr Xaso said the EFF Members who were all standing and speaking at the same time, as seen in the video clip, were not recognised by the Speaker and so, in terms of the Rules, they could not speak, nor could they speak when the Speaker addressed the House, and they should have resumed their seats.

Mr van Voore said it might be unclear who the Speaker was referring to when she requested the Sergeant-at -Arms to assist those Members who were not serious about leaving the House. 

Mr Xaso said his comment on this would refer the matter to Rule 51. Any conduct contrary to this rule entitled the Speaker to order the relevant persons to withdraw from the House. It was necessary to look at the conduct in terms of its compliance with or contravention of the rules. If the conduct was in contravention of the Rules, then Rule 51 should be invoked, if the conduct disregarded the authority of the Chair. He quoted from a court judgement dealing with matters of Parliament and specifically in relation to the role of the Speaker, in the matter between Mr M Lekota (COPE) and the Speaker. The judge in that matters said that the Speaker had a duty to maintain order during debates of the National Assembly. The task of controlling debates in Parliament required particular skills, and was best dealt with by the presiding officers who were appointed for this purpose. His view was that the Speaker made a determination that Rule 51 was being transgressed.

A video clip was shown and Mr van Voore asked who the Speaker was referring to when she said, "Leave the House” and had called for the Sergeant at Arms’ assistance.

Mr Xaso said the Speaker was referring to the Members who were at the time deliberately contravening these rules, amongst others, Rule 49 and Rule 72. In the view of the Speaker, these Members were grossly disorderly.

Mr van Voore referred to Charge 2 against Mr Ramakatsa and noted that the video clip indicated a number of persons whom the Speaker was addressing and ordering to withdrew from the chamber. He asked whether this had included Mr Ramakatsa?

Mr Xaso said Mr Ramakatsa was standing next to Ms M Moonsamy (EFF) and Ms H Maxon (EFF).

Mr van Voore asked if similarly, in relation to the charge of not withdrawing immediately from the chamber when ordered by the Speaker to do so, Ms Litchfield-Tshabalala was included in the number.

Mr Xaso said Ms Litchfield-Tshabalala was not standing at that moment, but, as would be seen in the course of playing the video, she had made some comments, such as, "We want the money", and the same Rule as earlier outlined would therefore have applied. The Rules required that when the Speaker rose, Members should resume their seats and not speak at the same time as the Speaker.

Mr van Voore said Mr Gardee was facing Charge 2, which was similarly that he had failed to withdraw from the chamber immediately. He asked for confirmation whether Mr Gardee was included in that group.       

Mr Xaso said that a watching of the video clip would show that Mr Gardee was hitting his desk with a helmet, and the Rule talked about conduct that the Speaker determined to be disorderly, so that was why this charge was brought against him.

Mr van Voore then noted that Mr Ndlozi also faced a charge 2, of not withdrawing immediately the Speaker requested. He asked if the Speaker was also addressing Mr Ndlozi.

Mr Xaso said that Mr Ndlozi had been busy raising a point of order, which the Speaker had not acknowledged, on the basis that she had already ruled on the point, when Mr Ramakatsa had raised a point of order that was not a point of order. The Speaker had ruled and Mr Ramakatsa, Ms Litchfield-Tshabalala, Mr Gardee and Mr Ndlozi had all attempted to raise the same matter.

Mr van Voore summarised that he had now led evidentiary material relating to Charges 1 and 2, for five of the Members.

Mr van Voore moved on to Charge 3 against Mr Shivambu.

Mr Xaso read charge 3 against Mr Shivambu into the record, noting that this alleged that the Member was guilty of conduct in contempt of Parliament, and contravened section 7(b) of the Act by improperly interfering with the performance by another MP of his/her functions. In this case this related to the conduct that prevented Mr Holomisa and others from asking their questions.

Mr van Voore said that similarly, Mr Ramakatsa and Ms Litchfield-Tshabalala were also charged with a similar charge as Charge 3 against Mr Shivambu. He asked for confirmation which of the Members had spoken instead of allowing Mr Holomisa to speak.

Mr Xaso said Mr Shivambu, Mr Ramakatsa, Ms Litchfield-Tshabalala, Mr Gardee and Mr Ndlozi were those who had spoken at this point.
Mr van Voore said that on four occasions within a short space of time, the Speaker specifically referred to Mr Holomisa and gave him the chance to ask his supplementary question.

Mr Xaso confirmed this.

Mr van Voore asked if Mr Holomisa had asked his question.

Mr Xaso said he had not.

Mr van Voore asked if Mr Malema was on his feet at this time.

Mr Xaso said that he was, and he was actively engaging with this particular process.

He wanted to note that in terms of Rule 53(1) a Member asked to withdraw should indeed withdraw from the precincts of Parliament. Only the Speaker had the power to suspend, and other chairpersons who had any difficulty on this point should name the particular Member and report that person to the Speaker. Naming a person also meant that person had to leave the precinct of Parliament.

Dr Lotriet wanted to raise a point of clarity.

The Chairperson suggested that the Initiator should first be allowed to lead all his evidence, and then points of clarity would be entertained.

Mr A Matlhoko (EFF) said the prior agreement in the Committee was that where points of clarity were required, they could be raised when appropriate.

Mr M Filtane (UDM) asked, on a matter of practicality, how else it could it be noted at what point in time the point of clarity was asked.

Mr M Booi (ANC) interjected and said he felt this would interfere with the work of the Initiator.

Mr Filtane said he had not completed his point. He said that the Committee, when sitting, should give more respect to the process, and less concern to the result.

Mr Booi interjected once again.

Mr Filtane said he had still not completed his question.

Mr Mdakane proposed that the meeting adjourn for a short period, to allow for the matter to be discussed.

Mr A Matlhoko (EFF) complained that the Chairperson was taking instructions from other people and had not consulted with the remaining Members. He said that taking a break at this point would effectively silence those wanting clarity, and that he did not want to go for a break.

The Chairperson said the agreement had been that the Committee would allow the Initiator to complete the leading of evidence, and that Members should at this point note points of clarity to raise later.

Mr Filtane said that he was making input on the practical application of that agreement.

Mr Matlhoko said it would be the Committee’s problem, as the questions were only seeking clarity.

The Chairperson asked for a short adjournment, and, on returning, said that the Initiator would complete the leading of evidence and that Members should note points of clarity for later.

Mr van Voore said that, to assist the Committee members, he would make available a hand-out of all the references used, as well as a CD of the video clips used. He said that from this point, he would be "jumping" between the charges.

He wanted to move to Charge 6, a charge relating to disturbance.

Mr Xaso said Charge 6 related to conduct that contravened section 7(e) of the Act, in that shouting and banging on a table by Members in a disorderly manner had forced the Speaker to adjourn and suspend proceedings for the day.

Mr van Voore then moved to charge 6 against Mr Ramakatsa, framed under section 7(e), and confirmed that it alleged that he had shouted and refused to obey the Speaker. Similar conduct was named as the basis of charge 5 against Ms Litchfield-Tshabalala, charge 4 against Mr Gardee, charge 3 against Mr Ndlozi, and charge 3 against Mr Malema, and he also noted that these were similar to the charges against Mr Shivambu.

Section 13(a) and section 7(e) of the Act were read into the record.

Mr van Voore showed a video clip and asked who could be identified in relation to the conduct that was the basis of the charges of disturbance and disorder.

Mr Xaso said he could identify Mr Malema, Mr Shivambu, Ms Litchfield-Tshabalala, Mr Ndlozi, Mr Gardee and Mr Ramakatsa, who was next to Mr Ndlozi. He observed that the Speaker had recognised Mr Holomisa to speak, but that points of order had been raised. These people were addressing the Speaker, standing, and speaking through the microphone, and shouting. The Speaker was attempting to address the House and the Members were not sitting down as requested.

Mr van Voore asked if the House was still in session, and said that he wanted to identify when exactly the Speaker suspended the proceedings.

Mr Xaso confirmed the House was in session at this point. He confirmed that the Rules were there to regulate the House’s business and were applicable whenever the House was in session.

Mr van Voore asked what led the Speaker to do what she did.

Mr Xaso said the Speaker had invoked Rule 56 as she had made a determination that the House was disorderly.

Mr van Voore asked if Mr Holomisa had already asked his question when the Speaker had suspended the House.

Mr Xaso said that he had not.

Mr van Voore noted the appearance of a person in robes in the video clip.

Mr Xaso said it was the Sergeant-at-Arms.

Mr van Voore asked if the intervention of the Sergeant-at-Arms caused the Members to leave the Chamber.

Mr Xaso said ordinarily Members would leave before the Sergeant at Arms came.

Mr van Voore asked if, in the experience of Mr Xaso in his work in Parliament since 1994, he had seen developments such as that now shown on this footage.

Mr Xaso said he could not recall any other incident of that nature. He could recall two incidents but these occurred after adjournment. One had been in 1998, when fighting occurred, and one in 1997, when young people staged a demonstration in the gallery section.

Mr van Voore asked if it was an exaggeration to call this a disturbance, and asked whether it was in fact merely "a storm in a tea cup".

Mr Xaso said Parliament had constitutional responsibilities and obligations when it met to consider its business and that any conduct causing the House not to be able to conclude its business could not be taken lightly.

Mr van Voore said someone was heard to say, “You won't remove us, we’re not going anywhere”

Mr Xaso said this statement was made by Mr Shivambu.

Mr van Voore asked Mr Xaso to describe events shown on a video clip

Mr Xaso said the Speaker suspended the house for three minutes and reconvened after seven minutes, at which stage she said the sitting was adjourned to allow for the House to be vacated.

Mr van Voore showed another clip and asked for a description of the events on this clip once again.

Mr Xaso said this showed that business was resuming and the Speaker announced that there had been consultations and that the House would adjourn.

The meeting was adjourned.