National Assembly 30 August 2022 incident hearing: Day 1

Meeting report

Chairperson: Good morning Honourable Members and our officials.

Ms D Dlakude (ANC): Morning, Hon Chair.

Chairperson: Yes, we can start. I am told we are forming a quorum. Hon Members, let me take this opportunity to welcome all of you, Members of the Committee, the affected Members, the Initiator and the legal team of the affected Members: Good morning. Let me establish whether we do have apologies from our officials. Do we have any apology?

Committee Secretary: Chair, we have an apology from Ms Majozi. And the members of the Democratic Alliance have indicated they will attend caucus at 10:00, so they will not be here.

Chairperson: Thank you. The apologies are noted. We are proceeding. Hon Members, we are today and the next three days holding a hearing on the incident of the 30th of August 2022, when the National Assembly (NA) held its plenary to consider questions for oral reply by the President of the Republic. That incident involved physical removal of Members from the Chamber and it has since been referred to this Committee by the Speaker for investigation and a report. I now declare the hearing open, Hon Members. At this stage, I will ask the Initiator to introduce himself and his team and to inform the Committee of the purpose of the hearing. Thank you. Over to you, Initiator.

Adv Tanya Golden Senior Counsel (Initiator of the hearings): I am the Initiator for this hearing. My apologies, the microphone was off. Let me do that again. I am Tanya Golden, SC. I am the Initiator that has been appointed to prosecute the charges against relevant EFF members.

Chairperson: Initiator, I am handing over to you to introduce yourself and your team and the people.

Adv Golden: Chair, can you hear me?

Committee Secretary: Hello, Chair. Can you hear me? Members, can you hear me? Hello? Chair, can you hear me?

Chairperson: IT (Information Technology), can you assist us? We cannot hear the Initiator. It is not muted, it seems that there is a problem with the House, please.

Committee Secretary: Hello, Chair? Can you hear me?

Chairperson: Hello. Is someone speaking?

Committee Secretary: Yes, Chair. Can you hear me?

Chairperson: I cannot hear you. I only hear noise. I believe it is the same with other Hon Members.

]The meeting adjourned for ten minutes due to a technical issue]

Chairperson: In that order, I will invite the Initiator to take the platform. Can the Initiator hear me? Hon Members, am I audible?

Ms D Dlakude (ANC): You are audible, Chair.

Chairperson: Speak, I am listening.

Committee Secretary: Hello?

Chairperson: Yes, we can hear you.

Committee Secretary: Can you hear me, Chair?

Chairperson: Yes, we can hear you.

Adv Golden: Thank you, Chair. Chair, can you hear me?

Chairperson: Yes, I can hear you.

Adv Golden: Thank you, Chair. Let me start again, thank you. I am Tanya Golden, SC. I am the appointed initiator to prosecute the charges against the three EFF Members of Parliament. And I am assisted by my colleague, Adv Penny Magona-Dano. Thank you, Chair.

Chairperson: Can you proceed and explain the purpose of the meeting. Thank you.

Adv Golden: Thank you, Chair. We have convened today in the internal parliamentary hearing. Sorry, the sound is not so good, Chair. I apologise. I will hand over to my colleague.

Chairperson: Penny, can you proceed?

Adv Golden: Thank you, Chair. We have convened today in the internal parliamentary hearings to prosecute charges against three EFF Members of Parliament. It is in respect of Mr Ceza, Mr Paulsen and Ms Mente. That is the subject of the hearing and it also pertains to the proceedings in the National Assembly on 30 August 2022, which was a session convened by the National Assembly to address questions to the President, Mr Cyril Ramaphosa. There are three charge sheets or notices that are in the Hearing bundle. I would like to confirm that Members of the Committee are in possession of the bundle, Chair?

Chairperson: Thank you. If you are done, just reflect to us that you are done.

Adv Golden: By way of introduction, I am done. Thank you, Chair.

Chairperson: Thank you. Thanks for the introduction and the purpose of the hearing. I will now ask the legal team of the affected Members to introduce themselves. But before allowing them to speak I would like the legal [team] to confirm the presence of the affected Members. Do we have them? Then we will proceed.

Adv Mfesane Ka-Siboto (Leader of EFF Members legal team): Thank you, Chairperson. Just to confirm whether you can hear me and the rest of the Committee Members can also hear me?

Chairperson: Yes, we can hear you, advocate.

Adv Ka-Siboto: Thank you very much, Chairperson. Just by way of instruction, my name is Ka-Siboto, JSA (Johannesburg Society of Advocates) member of the bar. I can confirm, Chair, that the three Members that are charged are present. I have got here with me in the House, Mr Paulsen, MP. The other two are available virtually. Thank you, Chair.

Chairperson: Thank you for the introduction and the confirmation that the affected Members are in our midst. With that, I will now, at this time, call upon the Initiator to put the charges on the affected Members. Over to you, Advocate.

Adv Golden: Thank you. Thank you, Chair. Chair, there are one or two other matters that I need to address the Committee on. But I will go ahead and in the meantime put the charges to the Members to plead thereto. I will start with the first notice in respect of Mr Ceza, MP. Chair, you will find that notice at page 244 of the Hearing bundle. I will go straight to the charges, which starts on page 247. We already know that the charges relate to the conduct of the relevant Members in the National Assembly proceedings on the 30th of August 2022 during questions to the President. Charge one, in respect of Mr Ceza, is the following. Please bear with me, Chair, and I will try and read it as quickly as I can. It is alleged that you are guilty of conduct, constituting contempt of Parliament in terms of Section 13 (a),(c),(d) of the Powers and Privileges and Immunities of Parliament Act. I will just, in the course of reading the notices, I will just refer to it as the ‘Act’. As a member of Parliament, and during the sitting of the National Assembly, on 30 August 2022 you contravened Sections 7(a) and (b) of the Act, read together with the National Assembly Rule 69(a), (c), (f) when during the proceedings you inter alia willfully and intentionally failed and or refused to: one, comply with an instruction by the Speaker to leave the National Assembly; two, improperly interfered with or impede the exercise or performance by the National Assembly of its functions; three, obstructed other Members from proceeding with the meeting in the National Assembly; and four, improperly interfered with the performance but other Members of the functions in the National Assembly. By engaging in such conduct, which was grossly disorderly, you created and took part in a disturbance during a meeting of the National Assembly within the Parliamentary precinct in breach of Section 7(e) of the Act. Charge 2, it is alleged that you are guilty of conduct constituting contempt of Parliament in terms of Section 13 of the Act, in that as a Member of Parliament and during the National Assembly on 30 August 2022, on questions to the President, 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. When ordered to leave the chamber in terms of Rule 70 disregarding the authority of the Chair, you refuse 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 forthwith. Further in breach of Sections 13(c) and (d) of the Act, you failed and or refused to comply with the order to leave the chamber, compelling the Speaker to invoke Rule 73(2) of the Rules, and you were duly removed by the Parliamentary Protection Services, Chair, those are the two charges in relation to Mr Ceza. Mr Ceza is now required, in terms of the Act and the Rules, to plead to those charges.

Chairperson: Thank you. I will now recognise each Member and request the Member to plead to charges. I will allow for up to three minutes for Members wishing to give an explanation. Hon Members, if a Member pleads guilty to the charges, I will ascertain from the Member whether the Member admits guilt to the charges, as put to him by the Initiator. If the Member decides to not enter a plea of not guilty in respect of that… As outlined to the first Member, Xasa or Xesi, I am now asking…

Mr K Ceza (EFF): Chairperson, the sound is very very bad, you know. I do not know whether you are calling me or not.

Chairperson: I am calling you to plead, Hon Member.

Mr Ceza: I am not Xasa.

Chairperson: I can hear you, Hon Member. Sorry for that. Can you correct me, Hon Member? I am not doing it deliberately.

Mr Ceza: My name is Khanya Ceza. I plead not guilty, Chairperson. Thank you very much.

Chairperson: Thank you, Hon Member. Thank you, Hon Khanya. I will request the Initiator to proceed with the second Hon Member.

Adv Golden: Thank you, Chairperson. The next charge sheet from which I will read pertains to Mr Paulsen, MP. His charge sheet you will find at page 265 of the hearing bundle. I will proceed to read 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, in that as a Member of Parliament and during the sitting of the National Assembly on 30 August 2022, you contravened Sections 7 (a) (b) and (c) of the Act, read together with National Assembly Rule 69(a), (b), (c), (e) and (f) and Rule 73(5), when during the proceedings you inter alia willfully and intentionally failed and refused to: one, comply with an instruction by the Speaker to leave the National Assembly; two, improperly interfered with or impeded the exercise or performance by the National Assembly of its functions; three, obstructed other Members from proceeding with a meeting in the National Assembly; and four, improperly interfered with the performance by other Members of their functions in the National Assembly. By engaging in such conduct, which was grossly disorderly, you created and took part in a disturbance during a meeting of the National Assembly within the Parliamentary precinct in breach of Section 7 (e) of the Act. Charge two, it is alleged that you are guilty of conduct, constituting contempt of Parliament in Section 13 (a), read together with Section 26 of the Act, and NA Rule 69(a), (b), (c), (e) and (f) and Rule 73(5), in that as a Member of Parliament and during the sitting of the National Assembly on 30 August 2022, on questions to the President, you hindered or obstructed a staff member in the execution of that staff members duties by physically intervening in the removal of Hon Ceza. Chair, those are the two charges in relation to Mr Paulsen.

Chairperson: Thank you, Initiator. Hon Paulsen, how do you plead to the charges?

Mr M Paulsen (EFF): Good morning, Chair. I plead not guilty on all charges.

Chairperson: Thank you, Hon Paulsen. Initiator, can you proceed?

Adv Golden: Thank you, Chair. And then the final charge sheet relates to Ms Mente, MP. I will read from page 263 of the hearing bundle from her notice. Charge one, it is alleged that you are guilty of conduct constituting contempt of Parliament in terms of Sections 13(a),(c) and (d) of the Act in that as a Member of Parliament, and during the sitting of the National Assembly on 30 August 2022, you contravened Sections 7(a) and (b) of the Act, read together with National Assembly Rule 69(a), (b), (c), (e) and (f) when during the proceedings you inter alia willfully and intentionally failed and or refused: one, to comply with an instruction by the Speaker to leave the National Assembly; two, improperly interfered with or impeded the exercise or performance by the National Assembly of its functions; three, obstructed other Members from proceeding with the meeting in the National Assembly; and four, improperly interfered with the performance by other Members of their functions in the National Assembly. By engaging in such conduct, which was grossly disorderly, you created a disturbance during a meeting of the National Assembly within the Parliamentary precinct in breach of Section 7(e) of the Act. Charge two, it is alleged that you are guilty of conduct constituting contempt of Parliament in terms of Section 13(c) of the Act in that as a Member of Parliament, and during the National Assembly of 30 August 2022 on questions to the President, 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 you disrupted proceedings. 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 forthwith. Further in breach of Sections 13(c) and (d) of the Act, you failed and or refused to comply with the order to leave the chamber, compelling the Speaker to invoke Rule 73(2) of the Rules and you were duly removed by the Parliamentary Protection Services. Charge 3, it is alleged that you are guilty of conduct constituting contempt of Parliament in terms of Section 13(c) and (d) of the Act, and during the sitting of the National Assembly on 30 August 2022 on questions to the President, and following a disturbing and volatile exchange of remarks between the Hon Ms T Mgweba and yourself, the Speaker requested both Members to withdraw the remarks, which you refused to do, when ordered to leave the chamber, in terms of Rule 70, for disregarding the authority of the Chair, you failed and refused to comply with the order. Further in breach of Section 26 of the Act, the Sergeant at Arms reported that you would not comply with the request to leave the chamber and Rule 73(2) had to be invoked by the Speaker and you were duly removed by female staff of the Parliamentary Protection Services (PPS). Chair, those are the charges against Ms Mente.

Chairperson: Thank you, Initiator. Hon Mente, how do you plead to the charges?

Ms V Mente (EFF): Good morning.

Chairperson: Morning. Good morning, Hon Member.

Ms Mente: This is Ntombovuyo Veronica Mente. I plead not guilty to all charges.

Chairperson: Thank you, Hon Mente. Thank you for your response. Are there any Members present who have not been asked to plead to charges, Hon Members? If not, at this stage, I will now invite the Witness.

Adv Golden: Chair, if you would permit to just place, I think, two issues on record, which are, I think, important for purposes of the proceedings, before we proceed with the first Witness?

Chairperson: Yes, proceed.

Adv Golden: Thank you. Chair, we received notification yesterday from the Members on the affidavits, and I trust that the Committee would have been furnished with the copies of the affidavits. They are the following: Mr Masibulele Xaso, he has a commissioned affidavit, but we intend to call Mr Xaso at this stage as the only witness. Then following Mr Xaso, there are affidavits from Mr Tebello Maleeme, who is the Acting Sergeant at Arms. There are affidavits from Mr Nigel Van Ster, who is a control language practitioner in Parliament; also one from Ms Lesley Brian, who is also a control language practitioner in Parliament. Then we have an affidavit from Mr Sizathu Makana, as part of the Chamber Support Officers or as we call it, Parliamentary Protection Services. And the last affidavit is by Mr Titus Mmekoa, Manager of Parliament's Broadcasting, Audio Visual, and Technical Support unit. So these are the affidavits which I ask to be admitted into evidence. As I indicated, and my learned friend can confirm, that the Members have no objection to the submission of those affidavits and accordingly it will not be necessary to lead these witnesses in oral evidence. Thank you.

Chairperson: Thank you, Initiator. According to our programme we need to have a ten minute tea break, and then we will resume again.

Adv Golden: Thank you, Chair.

[The meeting adjourned for a ten minute tea break]

Chairperson: Hon Members, let us resume our sitting. The fifteen minute break is over. I am sorry, I said ten minutes, according to the programme, tea is fifteen minutes. I am sorry. Hon Members, Rule 168 requires that before a witness gives evidence before a House or a Committee, the Chairperson must, in accordance with Section 16 of the Powers and Privileges Act, inform the witness as follows: ‘Please, witness, be informed that by law you are required to answer fully and satisfactorily all the questions lawfully put to you or to produce any document that you are required to produce in connection with the subject matter of the inquiry. Notwithstanding that any answer from the document could incriminate you or expose you to criminal or civil proceedings or damages. You are, however, protected in that evidence given under oath or affirmation before a house or committee may not be used against you in any court, or place outside of Parliament, except in criminal proceedings concerning a charge of perjury, or a charge relating to the evidence or documents required in this proceeding.’ So do you have any objection to taking an oath or making an affirmation by Mr Xaso, because you are the Witness before us?

Adv Ka-Siboto: My apologies, Chairperson. It is Ka-Siboto, again, counsel for the three charged Members. With your indulgence, Chairperson, can I please intervene at this point, because I see that we are now proceeding with the hearing itself? I would like to get an opportunity, if you will, Chair, at this stage, as I see it as appropriate to do it at this stage, to raise preliminary issues before we even get to the substance of the charges, if the Chairperson will so indulge me?

Chairperson: Advocate, I will allow you to do that because this is a hearing. As the Committee we would like to hear what you want to say. I was proceeding according to the programme, since your good selves have agreed that only one witness will be allowed to witness before us. So I thought we are together, but I cannot deprive you as the legal team of the affected Members. I may allow you to say what you want to say before the Committee.

Adv Ka-Siboto: Thank you very much, Chairperson I am indebted to you for the opportunity. I want to raise three issues as the starting point. The first is to perhaps correct what might have been a misunderstanding. The Initiator has suggested to the Chairperson that we accept all the statements that were read out. And she places reliance on an email that was communicated to her, or at least the legal team for the other side, which was sent on Friday. Again, just a correction of fact there. Nothing turns on it but it was not sent yesterday, but last Friday. Be that as it may, this is the content of the email she relies on. It says ‘Please be advised that the affidavits of the witnesses whose evidence is of a technical nature will be accepted as such and we do not see the need for these witnesses to be present for oral evidence. However, we will place on record at the hearings that none of these witnesses will be able to speak on behalf of or in relation to the Speaker.’ The point I simply seek to make, Chair, is this, that, to the extent that any of the statements that were provided by the security personnel, and such evidence appears in their statements, does not align with the version of my clients, we will take issue with it, because as we see it a factual dispute and not a technical one. All we simply sought to convey in that email is to say, we accept the video for what it is and what it purports to be as recorded by the technical staff. We equally accept the recording of those videos and the Hansard by the technical staff, which must, by definition, exclude any witnesses who are going to speak on factual occurrences of the day, including the security personnel. I want to place that on record as a starting point. The second point I want to make is this: In the last hearing, in relation to other members of the EFF that were charged the last time, sometime in November I understand it was, I was here, and so was the Initiator before this particular sitting. There, Mr Ngcukaitobi, SC, who was representing the Members at the time, advanced argument as to why this Committee is not properly constituted, or at least not constitutionally running the process. Those submissions were made before yourself, Chair, and the committee that presided over those hearings. We wish to restate those submissions, Chairperson. We insist and we stand by those submissions. Our view is that it is not in line with the Constitution, certainly not its spirit and purport, to have political opponents playing witness, prosecutor and judge in a matter of their political opponents. We say for that reason, Chairperson, we ask that this House adjourns, it waits for the Part B application, where those issues would be ventilated, and a court of law will make a determination on it. And should we be found wrong on that premise, then, of course, this House may sit again. That is the first submission I wish to make. I will not patronise this House by restating what Mr Ngcukaitobi had submitted then, safe to say we stand by those submissions. And I take comfort in the fact that the Initiator in these proceedings was present. And I would take it that she is well aware of what those submissions are. And to the extent she is interested in me, regurgitating them, I will be more than happy to. The third point I want to make, Chairperson, is this – and it is my final one – we equally take issue with the absence of the Speaker. I certainly would have loved to have the Speaker answer to my questions. And the reason we would have preferred to have the Speaker here is that in the report she has presented, which are the fulcrum and the basis of the charges against my clients, her report is the basis of why we are here. The effect of that, if you were to make a litigation process analogy, is that she gives evidence in chief and without an opportunity to cross and test the version, as recorded in the report, her version is to be accepted. It is untenable, and it is not reconcilable with the principles of fair trials. For that reason, I also submit then, Chairperson, and to this august Committee, that you earnestly have regard to the submissions. I deliberately use the word ‘earnestly have regard to the submissions.’ I invite you to make a ruling on it. And on the basis of your ruling, we can then proceed. That is the sum total of my submissions to the Chairperson and I am grateful for the opportunity and to this Committee. And with that, I conclude my preliminary submissions. Thank you, Chairperson.

Chairperson: Thank you, Advocate. Thanks for the presentation. As I have indicated that here we are in the hearing and we are respecting each and everyone's view most especially that up to now there is no one who is guilty. We are collaborating on the matter and that is why we have got legal gurus to advise us in terms of the Constitution. But at this stage, I will invite our Initiator to respond to what you have presented. And then at the end, I will invite Hon Members themselves to make their input. Initiator, over to you.

Adv Golden: Thank you, Chair. I have listened to the submissions of my learned colleague. The affidavit evidence, I have already submitted those affidavits. If the need arises, and depending on what arises from the cross-examination of Mr Xaso, I may decide at a later stage to call one or two witnesses. But I will make that decision at the appropriate time. Regarding points number two and number three, that was raised. My learned friend referred to the previous hearing that was convened before this Committee: it was Adv Antoine Katz that was the initiator in that hearing, and where certain points or objections were raised by counsel for the EFF. I understand him to say that they stand by those submissions, and they wish to repeat them for purposes of placing them on the record in this hearing. Related to that is point number three, that they persist in wanting to have the Speaker give evidence. We have dealt with that, if I am not mistaken, in the urgent application that was pending before the High Court and the Part A interdict application, which was now determined, and which I am instructed, was dismissed by acting Judge Murray on Friday. There is accordingly in my view, Madam Chair and Committee, no impediment for this hearing to continue. I wish to lead the evidence of Mr Xaso, including the… who will also take us to the video recording of the proceedings on the 30th of August. Other than that, Madam Chair, I am in your hands, in respect of the ruling that my learned friend seeks in relation to points number two, and number three. Thank you.

Adv Ka-Siboto: Sorry, Chair. It is me again. Sorry, just before you respond, just by way of a technical issue, which will obviously inform what decision you make, the intention is not to ask for the Speaker to come and give evidence. We accept that she has provided a report which gives her version. What we are asking for is nuanced and slightly different. And it is this: She has given her views and her report. We want to challenge her views. That is what we are saying. We are not saying, come tell us what happened. We know what she says happened as she says that, we want to test that. And I will give you a practical example of what it is that I am getting at, speaker. One of the Members of Parliament that I represent is accused of having said something unparliamentary. It does not appear anywhere in her report, nowhere in the Hansard, nowhere in the video, what exactly it is that she said. She, at that hearing, invited the Speaker to tell her what she said. The Speaker said ‘Well, I will have reference to the Hansard and revert.’ She has not done so. So all we simply want, for example, is for her to tell us what the Member said. It appears nowhere in the report. It causes clear prejudice then to our client to have to sit here and answer for a version that is not being put to her. Unless, of course, I am told Mr Xaso has personal knowledge of what the Member said. Absent that, on what basis does she defend herself? It is for that reason, we insist that the Speaker is made available not to give evidence, she has done so, but to answer to these pressing questions. And it is that, Chairperson, that I am inviting you to consider to avail the Speaker for cross-examination. Thank you, Chair.

Chairperson: Thank you. As the Chair, I will make a ruling after the Hon Members have spoken. But I am a little puzzled, my Advocate, because when you presented earlier you said, item two, you stand by the submission of the previous…

Ms Dlakude: Hon Chairperson, you are muted. We did not hear from the start what you were saying.

Chairperson: Okay, I said I will make a ruling after Hon Members have exercised their mind on this. But I wanted to indicate to the Advocate that in this presentation, he alluded that they stand by the position of the previous legal representative, which is Adv Ngcukaitobi, to subpoena the speaker, but later technically he is changing. So, I wanted to alert Members on that one and also to alert him that I will still give an opportunity to the Initiator because as our legal guru she needs to respond to certain things before I request Hon Members to exercise your mind on this matter. Initiator, can you respond to the latter presentation by the leader of the legal team of the affected Members. Thank you.

Adv Golden: Thank you, Madam Chair. I just have one very short response to that, Madam Chair, at the end of the day, and this is really the basic rules of evidence, if I am not able as the Initiator to discharge the onus upon me, where I am unable to prove a particular charge or charges, then I am unable to do so on the basis of the evidence. And that is really the short answer. And I mean, I hate to place my learned friend in a position of [inaudible]. I am not doing that at all. But if the Speaker is not called, then I must rest with that, I must stand or fall by that in respect of the charges – and that really is the simple answer. But as matters currently stand, we have made a decision. I have made a decision not to call the Speaker. I do not need the Speaker, in my view, to prove the charges. We will proceed with Mr Xaso, and Mr Xaso will take us through the video evidence. So I stand by my submissions. Thank you Chair.

Chairperson: Thank you, Initiator. Hon Members, I am now inviting you. Here is the request from the legal team of the affected Members. Over to you. I am now inviting hands on this matter. Thank you.

Ms Dlakude: Hon Chairperson, my hand is up.

Chairperson: Hon Dlakude?

Mr Z Mlenzana (ANC): And Mr Mlenzana.

Chairperson: Hon Mlenzana, you will be number two.

Ms Dlakude: Thank you very much, Hon Chairperson. Greetings to the Initiator, the legal team of the affected Members, the Members on the platform and the affected Members and everyone. Hon Chairperson, as this Committee we sat and deliberated on the matter of the Speaker; whether we subpoena the Speaker or not. And we said as the Committee that the material evidence piece before us, and the witnesses that are before the Committee, Mr Xaso, especially because he is the adviser to the Speaker in that House. We have enough evidence before us that we can deal with, so there is no need for us to subpoena the Speaker. So we fully agree with the Initiator that the Speaker at this point in time, we do not need her. And we said previously, like the affected Members…

Chairperson: Hon Dlakude, I do not know whether it is your second device [but] there is some noise in your background.

Ms Dlakude: I have only one device, Chair. I am not in any other meeting. So I was saying, Hon Chair, as the legal rep of the affected Members has said what the previous legal advisor said. We also stand by what we said, Hon Chair, in that meeting, the previous meeting and in this meeting. I thank you.

Chairperson: Thank you, Hon Dlakude. I will now invite Hon Mlenzana.

Mr Mlenzana: Thanks, Chairperson. Thanks for the advice by the Initiator. Hon Dlakude has well-captured what I was about to speak on because the long and short of it is that the advocate representing the affected Members is actually, as from his own mouth, re-running what we had already done and decided upon. So I am covered by Hon Dlakude. Thank you so much.

Chairperson: Thank you, Hon Mlenzana. Do we still have any other hands?

Committee Secretary: No, Chair. There are no further hands.

Chairperson: If there are no further hands, Hon Members, the leader of the affected team I believe I am going to make my ruling to what Hon Members have alluded. More especially that we have also been empowered on the issue of the Speaker by the dismissal of the application by the High Court. And I am happy because we were advised by our affected Members and their legal team that can we not wait for the court ruling so that we are on the same page. The court ruling is out, and we are supporting that court ruling. So by supporting it we cannot come here again as the Committee and contradict ourselves that we need the Speaker to come before this Committee. So I think our message is clear. There is no need for the Speaker. Again, to support the Initiator, on the second item of the composition of the Committee we were not even convinced by the clause in our rules which indicates any irregularities into that particular matter. The composition is in line with rules of the House, and we are sticking to that clause. So we do not see any mistake on the issue of the composition of the Committee. So by so saying, we are proceeding as the Committee with this hearing. It is up to you, our advocate leading the affected team, to bear with us that we need to resolve these matters: they must really come to an end. And my understanding is that we are trying to correct certain behaviour amongst ourselves as Hon Members, without any fear or favour. So we are proceeding. That is my ruling. Thank you.

Adv Golden: Thank you, Chair.

Adv Ka-Siboto: Thank you, Chairperson. I receive the ruling. And just as a matter of law, rather than disrespect for this Committee, I must state that my clients remain in this hearing – which they will – under protest. It is for legal reasons I make the point, and I hope you do not view that comment dimly, it is just for purposes of law. And we accept the ruling. We will stay and participate in the hearing. Thank you, Chair.

Chairperson: Thank you, Advocate, for that maturity. We appreciate that. In this order, we will proceed. Initiator, is our Witness ready before us?

Adv Golden: Yes, Madam Chair. Mr Xaso is ready. I will take Mr Xaso through a few questions before we turn to the video recording of the proceedings of the 30th of August.

Chairperson: Before he comes before this Committee, there are certain rules which I have read. I do not know whether he heard me, because at this point I am bound to ask him whether he objects to take any oath or make any affirmation so that we can take him through. We will not take him through before you do that. Mr Xaso, are you ready to take an oath?

Mr Masibulele Xaso (Secretary to the NA): Hon Chair, I am ready to take the affirmation.

Chairperson: Thank you.

[Mr Xaso was sworn into the hearing as a witness]

Chairperson: Now, I will invite you Initiator to proceed with our Witness. Over to you.

Adv Golden: Thank you, Madam Chair. Mr Xaso, I am sure that you are well known, but for good order, let me ask some, what should be obvious, questions and answers – but I will ask them nevertheless. Mr Xaso, what is your position in Parliament, and tell us a little bit about your main role and duties and responsibilities?

Mr Xaso: Chairperson, my name is Masibulele Xaso. I am the Secretary to the NA. I have been in this role since 2013, even though I had acted for a year before that. My duty is that of advisor on matters of procedure, parliamentary procedure, and processes. In carrying out my duties I advise the Speaker, I advise Hon Members. I also advise committees of the NA of matters of parliamentary procedures, practice and the Rules. I am also responsible for the secretariat services of the NA. So such things as minutes of the House and other matters that relate to the smooth functioning of the NA. And, of course, I lead a team of advisors, and various colleagues who do operational tasks. Thank you.

Adv Golden: Thank you, Mr Xaso. And just for those of us who do not watch the Parliamentary Channel, you, whenever the NA or any House of Parliament convenes – but specifically the NA – are present in the Chamber. Is that correct?

Mr Xaso: Not always, but I can be present at any time. But, of course, in respect of what we are about today I was present in the Chamber. I am always present around.

Adv Golden: Yes, and on the 30th of August you were there for the entire proceedings, is that correct?

Mr Xaso: Yes, I was there for the entire proceedings.

Adv Golden: So what is the procedure when a Member is removed from the Chamber – physically removed? What happens then?

Mr Xaso: The physical removal of Members is not the first step that happens, it is a consequence of other processes. So a Member would have been asked to abide by a ruling of the presiding officer. And, of course, if a Member refuses to abide by that ruling of the presiding officer, the Member would then be asked to leave: any Member who defies the authority of the chair or disregards the authority of the chair. And when a Member refuses to leave, then the Sergeant at Arms is called upon to assist the Member to leave. This will be in terms of Rule 73 of the NA. And if the Sergeant at Arms does not succeed to effect the removal of the Members, in terms sub-rule 2 of Rule 73, then the Speaker, of course, once the Sergeant at Arms has reported that the Member is refusing, must call upon the PPS to assist in the physical removal of the Member.

Adv Golden: Mr Xaso, just to pause there. With reference, I think, to NA Rule 73(12), after the proceedings and after a Member has been physically removed, what must the Speaker do?

Mr Xaso: When a Member has been removed in terms of the Rules, the matter must then go to the Subcommittee on Physical Removal of Members. And, of course, the Speaker would then present a report to that committee. The committee would consider the report [and] express itself. And I think it is important that the Subcommittee does not report to the Speaker, it reports to the Rules Committee, which is a parent committee of the Subcommittee. It is then the Rules Committee which must make a determination on the report of the Subcommittee.

Adv Golden: Yes. Also, for good order, it is included in the bundle. Do you have the bundle with you?

Mr Xaso: Yes, I do.

Adv Golden: We now know that in terms of the NA Rules that the Speaker is obliged to report the physical removal of Members to the Committee. And to that end, she prepares a report.

Mr Xaso: Yes.

Adv Golden: If I could just refer you to page 527 of the bundle. Do you confirm that that was the Speaker’s report? Where she reported on the physical removal of Mr Ceza, Mr Paulsen and Ms Mente.

Mr Xaso: Chairperson, I confirm that is the Speaker’s report on the matter.

Adv Golden: Yes. And when did the committee then meet in order to then consider the Speaker’s report?

Mr Xaso: The committee met on the 12th of September – the Subcommittee.

Adv Golden: Was it not on the 13th of September?

Mr Xaso: Sorry, I just want to check that. I just want to confirm that. Yes, the 13th of September, 2022. Sorry. Thank you.

Adv Golden: Yes, and just to confirm for the Hearing, were you present in that meeting?

Mr Xaso: Yes, I was present in the meeting.

Adv Golden: Yes, and why were you present in that meeting? What role did you perform?

Mr Xaso: I performed the role of assisting the committee to understand what happened in the House and to explain the report that had been given.

Adv Golden: Yes, and then on page 541 of the bundle, do you confirm that this was the Member’s attendance register, of the Members who attended that meeting? It is on page 541.

Mr Xaso: Yes.

Adv Golden: Yes. And then the very next page, on page 542, it is headed ‘Draft minutes of proceedings. Tuesday 17 September.’ Do you confirm that this is the minute of that meeting?

Mr Xaso: Yes, I do confirm.

Adv Golden: And then we see there under ‘Staff in attendance’ M Xaso. There were other colleagues there as well, but you attended that meeting as you already confirmed.

Mr Xaso: Yes.

Adv Golden: And then under paragraph four there is a heading that says ‘Consideration of Speaker’s referral of the circumstances of the physical removal of Members from the Chamber on 30 August 2022’. And that is their discussion on the issue and their further deliberation?

Mr Xaso: Yes, I can confirm that.

Adv Golden: Yes. So we also know that Hansard is the transcription services of Parliament, and transcribes all the proceedings, including the proceedings which occur in the NA. Is that correct?

Mr Xaso: Yes.

Adv Golden: Yes…

Mr Xaso: May I just say that transcribes proceedings of the Houses of Parliament, which would be the NCOP (National Council of Provinces), the NA, and Joint Sittings of Parliament – and, of course, mini-plenaries of the NA.

Adv Golden: Yes. Thank you, Mr Xaso. And then just to refer you to page 277 of the bundle. Do you confirm that this is the unrevised version of the Hansard transcription of the proceedings that transpired on the 30th of August 2022 in the NA?

Mr Xaso: Yes, I confirm that.

Adv Golden: Yes. So if we could then just briefly turn before we go to the video clip, to the proceedings in the NA on 30 August 2022. Why did the NA convene on that day?

Mr Xaso: That day was a day to pose questions to the President, and for the President to respond to those questions – the President of the Republic.

Adv Golden: And how are questions to the President dealt with? Is there a procedure which precedes the actual meeting of the NA? Just tell us a little bit about that procedure and how the questions are determined.

Mr Xaso: Yes, there is a procedure. Firstly, the President is required to respond to questions once a quarter – four times annually, if I am correct. And the procedure there is that Members would submit questions to the Speaker for approval. But, of course, before they get to the Speaker they go through my Office, the Questions Unit of my Office as Secretary to the House, for editing and working with Members. So by the time questions appear on the Question Paper they would have been edited, discussed with the Members concerned, then they get to the Speaker for approval. In terms of the Rules the questions are published. Members are supposed to submit at least sixteen days before the President appears before Parliament because the date of the question session would be known by then. Now, maybe even before we get to question day, the Programme Committee would have scheduled that session for questions to the President. The manner in which the programmes of the NA are developed is that you have a Chief Whips Forum, which is a forum of all the whips of the parties, which would look at a report from the programme technical committee. That programme technical committee, politically, is led by a programming whip, and, of course, administratively by my office. That programme will then go to the Chief Whips Forum, which would look at a programme, make inputs and then goes to the NA Programme Committee. In the sequence of things, you would have the technical committee meet Tuesday, Chief Whips on a Wednesday, and then the Programme Committee on a Thursday. By the time we get to a question session, the session itself would have been reflected on a programme way ahead of time, known. Then the day before the session itself, we would have what we call the Order Paper. In simple terms, an Order Paper is the agenda for the sitting, so it would say this is what will be dealt with by the Members – basically a confirmation of what is contained in a programme of the House. Of course, depending on the time of the sitting; but in this instance it was at 14:00 on a Tuesday, the Order Paper would then serve before that sitting on that day. When you read the Order Paper that is about a question session, you must read it in conjunction with a Question Paper, which is published for the information of all the Members, containing six questions in this respect, because it is the President. For Ministers the number of questions will be different, but for this, it will be six questions for the President.

Adv Golden: When Members of Parliament convene in the NA are they then permitted to deviate from the Question Paper, or from the questions which had been pre-agreed or which had been discussed?

Mr Xaso: The question session is conducted as follows: you have the principle question, and you have supplementary questions, and those supplementary questions must be linked to the principle question or the response of the person who responded. So, no, there is no expectation, in terms of the Rules, that Members must start discussing other things that are unrelated to the questions in front of the House.

Adv Golden: Yes, and then it may sound obvious, but, again, the Speaker obviously, or the presiding officer controls the flow of supplementary questions, and she permits the supplementary questions, if any.

Mr Xaso: Yes, because supplementary questions are not known in advance, so the Speaker makes that determination – whether a supplementary question is in order or not in order. And the Speaker or a presiding officer who happens to be the chair at that point must make that determination.

Adv Golden: Yes, thank you. And on the 30th of August what was the format of the NA meeting? Was everyone present in person? Was it a hybrid meeting?

Mr Xaso: It was a sitting of the NA, some Members [were] physically present in the Chamber, and others on the virtual platform. And I think it is significant to state that both Members in the Chamber and virtual platform constitute a sitting of the House, and they enjoy the same rights. So it was a hybrid sitting of the House.

Adv Golden: Yes. We will see in a minute from the video recording evidence that the President, Mr Ramaphosa, also joined online for that sitting of the NA. Is that correct?

Mr Xaso: Yes, that is correct.

Adv Golden: Yes. Chair, we will now turn to the video clip of the NA proceedings of the 30th of August. And if I could just ask for that video clip to start? And I am just going to ask the person who is controlling the video clip evidence that we will play more or less – we will see how it goes – the first thirty minutes of the proceedings, and then at certain junctures I will then ask for the video clip to be paused where I will then ask Mr Xaso to confirm certain issues which arises from the video clip. Thank you. If we could then start to play it from the beginning.

The Committee was taken through a video clip on the President’s question and answer session on 30 August.

[There was a technical glitch towards the end of the video footage]

Chairperson: Hon Members, we were supposed to adjourn for lunch at 13:00, but can we adjourn now at 12:25 for an hour? Maybe that matter will be resolved, but the video footage we have seen it, all of us. And then we will allow the Initiator to proceed. Thank you. Let us adjourn for lunch.

[The Committee adjourned for lunch]

Chairperson: Hon Members, we are back. I will request our officials to give an apology on what happened. We were disrupted for 19 minutes, but I believe now, we are fine. We will proceed. Victor, can you say something?

Committee Secretary: Yes, thank you, Chair. Chair, we experienced technical difficulties this morning. We want to apologise for any inconvenience. We will make sure that going forward this is avoided by all means. Thank you, Chair.

Chairperson: Thank you, I believe the apology is accepted. Hon Members, and our legal team, let us proceed. Let us allow the video footage to play for 19 minutes, and then we will proceed in that order. Thank you.

Adv Golden: Sorry, Chair. My colleague for the EFF is not in the meeting room yet.

Chairperson: Okay, we will wait for him. Once he arrives, inform us so we can proceed. Thank you.

Adv Golden: Chair, I think we are ready to proceed. We will play the video recording.

The Committee resumed watching the video clip of the proceedings on the 30th of August.

Adv Golden: Sorry, Chair, if we could just pause the video clip there? Chair, sorry, if we could pause there? Thank you, Chair. If we could just pause there for just one moment? Mr Xaso, we have now all seen, up to this point the proceedings, in the NA on the day in question. And the first person, as we can see, that is being asked to leave is Mr Ceza.

Mr Ceza: I cannot hear anything, really.

Chairperson: Initiator, we cannot hear you.

Adv Golden: Chair, can you hear me now? Madam Chair?

Committee Secretary: Chair, can you hear me?

Adv Golden: Chair, can you hear me now?

Chairperson: Yes, I can hear you.

Adv Golden: Thank you. We have just paused and I have just asked Mr Xaso about what has just happened. Mr Xaso, we all see from the video evidence that Mr Ceza is the first person that is asked to leave the House. Is that correct?

Mr Xaso: Yes, that is correct, Chairperson.

Adv Golden: Yes. And we have also heard, if I am not mistaken, it was an objection or remark that was made by Mr Malema who was on the online platform. Mr Malema shouted at the Speaker to say that the Speaker must first warn him. Can that be correct, and what is your comment there?

Mr Xaso: Chairperson, I think the point I would like to explain to the Committee is that there is no requirement in the Rules for a Member to be warned. So when the Speaker warns a Member, it is out of courtesy. And in this instance, we will see that a lot had happened before that. So there was a build up towards this. But the point I want to make is that the Rules do not require a warning. The Speaker had… in fact, a warning had already been given by reading Rule 70 – what the rule says about the authority of the Speaker that must be observed.

Adv Golden: Yes, we also see that, notwithstanding that the Speaker had warned the Members of the EFF in particular, the relevant members that can be identified, that the Phala Phala issue was not the first question on the Order Paper or in terms of the Question Paper, it was the issue of migration. Then we see that Mr Ceza then persisted after the Speaker had repeatedly said that that was not yet the time to discuss that question. Is that an accurate summation of what happened in the video clip?

Mr Xaso: Yes, it is. I think… And the Speaker was saying this because question number five on the day, which on the Question Paper is reflected as question 11, but it would have been the fifth question, was on Phala Phala.

Adv Golden: Yes.

Mr Xaso: So the matter was still coming up in the proceedings of the House.

Adv Golden: Yes, so it was at this juncture then when Mr Ceza did not want to listen to the Speaker, that he continued with Phala Phala and she asked him to leave?

Mr Xaso: Yes, that is correct.

Adv Golden: Yes, we also see from the video clip…

Adv Ka-Siboto: My apologies, Chair, and I apologise to the Initiator. Typically it is not is not my style to interject, which is why I apologise. But if I could just ask the Initiator to not ask the Witness to confirm a version, that you rather ask the question, he answers – as it has been going at least to my recollection five times. You give a narration of what you perceive from the video and you just ask him to confirm. I would rather you ask leading questions. Thank you, Speaker… Chair.

Chairperson: Thank you. [audio was inaudible].

Adv Golden: Yes, Madam Chair, if I may just respond in this particular way. The video clip evidence – it is what it is. It is in many respects self explanatory. It will assist the efficiency of the Hearing if I just say what is already obvious for Mr Xaso to confirm; that is my response to that. But I will, where it is required and where it is necessary, I will revert to Mr Xaso’s views on the video clip. I am merely doing it to push the matter along given the time that we have already lost because of the technical issues. Thank you, Chair. I am happy to proceed.

Chairperson: Initiator, proceed.

Adv Golden: Thank you, Mr Xaso, we also see on the video clip evidence that the Sergeant at Arms, if I am not mistaken, was requested to remove Mr Ceza?

Mr Xaso: Yes.

Adv Golden: And, of course – and this is also to respond to my learned friend’s objection – you were obviously in the House, you were there personally. You attended the proceedings on the 30th, and you saw yourself what happened?

Mr Xaso: Yes, I was present.

Adv Golden: So this is not second-hand knowledge.

Mr Xaso: Yes, I was present, physically present at the House.

Adv Golden: Thank you. We may proceed with the video clip evidence. Thank you, Chair.

Chairperson: Yes, proceed.

[[The Committee resumed watching the video clip of the 30 August proceedings]

Adv Golden: Chair, if we could pause there?

Chairperson: Yes, you may pause there.

Adv Golden: Thank you. Mr Xaso, the video evidence obviously speaks for itself, but perhaps for good order, if you could just explain what we have all seen.

Mr Xaso: What we see there, Chairperson, is after having been ordered to come and remove the Member, the PPS was blocked or there was an attempt to…

Adv Golden: Mr Xaso, sorry, before we get there. Mr Ceza refused to leave when the Sergeant at Arms approached him, and then what happened after that?

Mr Xaso: And then the PPS was asked to come and remove the Member from the Chamber.

Adv Golden: And that happens when a Member refuses to leave on the instruction of the Speaker and/or the Sergeant at Arms?

Mr Xaso: That is when the Member refuses to leave on the instruction of the Speaker. And the next step is the Sergeant at Arms being asked. And the third step is the PPS being asked.

Adv Golden: Yes, so we also see that the Speaker called out to Mr Paulsen, who is also one of the Members being charged in the Hearing today. What did you observe on the video? What did Mr Paulsen do? What was his behaviour?

Mr Xaso: What I see in the video, and what I saw on the day, was the Hon Member attempting to prevent the PPS from removing Mr Ceza – physically attempting to restrain them.

Adv Golden: Yes. It is a fair and accurate description from what we have all seen now that Mr Paulsen was fighting with the PPS members?

Mr Xaso: He was preventing them physically. And yes, it was not a friendly interaction.

Adv Golden: Yes. Then we also see at the end, just before we paused, where the Speaker then instructs Mr Paulsen to leave. Is that also what you remember from the video clip evidence?

Mr Xaso: It is what I remember.

Adv Golden: Thank you, Madam Chair. We can proceed with the video clip.

Chairperson: Thank you, Initiator. Let us proceed.

[The Committee resumed watching the video clip]

Adv Golden: Thank you, Chair. If we could fast forward the video clip to, I think, two hours? I am just trying as accurately as possible to follow the video clip. Chair, I am asking of the technicians, I do not know if they can hear me, if we can fast forward the video clip to about say two hours and five minutes? We can start at two hours.

[The Committee resumed watching the video clip]

Adv Golden: If I could now ask the technician to go to two hours and ten minutes? Chair, if we could just pause the video there?

Chairperson: Thank you, proceed.

Adv Golden: Mr Xaso, we now saw that Ms Mente was instructed to leave the House. Then the Sergeant at Arms was instructed. Could you perhaps comment on that part of the video clip?

Mr Xaso: Chairperson, yes, the Speaker made a ruling that Hon Mgweba and Hon Mente must withdraw, and Hon Mgweba did withdraw. Hon Mente told the Speaker that she was not going to withdraw.

Adv Golden: And just so that we are accurate in terms of what needed to be withdrawn, I refer you to charge number three of Ms Mente’s charge sheet, which appears on page 265 of the bundle. I read there from sort of the fourth line. ‘And following a disturbing and volatile exchange of remarks between Hon Ms T Mgweba and yourself, the Speaker requested both Members to withdraw the remarks, which you, Hon Mente, refused to do. When ordered to leave the Chamber, in terms of Rule 70, for disregarding the authority of the Chair, you failed and refused to comply with the order. I just want to focus there. Yes, what is your comments in terms of Ms Mente’s behaviour?

Mr Xaso: Chair, I think the point that I would like to make as I respond to the Initiator, and maybe I should refer to a few rules. Rule 26 of the NA Rules, if I may? That is about the authority of the Speaker. Sub-rule 2 says that ‘The Speaker must maintain and preserve the order and the proper decorum in the House and uphold the dignity and good name of the House.’ And then [sub-rule] 3 ‘The Speaker is responsible for the strict observance of the Rules of the House and must decide questions of order and practice; such a ruling being final and binding.’ That point is important. So the point that I would like to make is that Ms Mente was not removed for the remarks she apparently made. But Ms Mente was removed for disregarding the authority of the chair when she was asked to leave the House. If the Member had done what the Speaker had asked her to do, in terms of these rules, the Member would not have been removed. But once there was a breach of Rule 70, which says ‘If the presiding officer is of the opinion that a Member is deliberately contravening a provision of these rules…’ which is the rule I have just cited now, and also Rule 92, which I will read later, ‘or that a Member is disregarding the authority of the chair…’ which is what happened when the Member said ‘I will not withdraw, despite what you are saying’. ‘... or that a Member’s conduct is grossly disorderly, he or she may order…’ Now, when does conduct become grossly disorderly? Anything, in my view at least, that prevents the House from proceeding its business would qualify under that. Now, Rule 92(11), you will tell me if I am going too fast with this, says that ‘The presiding officer’s ruling on a point of order is final and binding and may not be challenged or questioned in the House’. But then is recourse: ‘A Member who is aggrieved with the presiding officer on a point of order may subsequently invite… and the matter may be referred to the Rules Committee.’ I hope I have answered your point. But the point I am making is that the removal of a Member is never really about what the Member has said or not said in the House. It is always about whether there was a disregard of the authority of the chair, whether there was grossly disorderly conduct, or there was non-observance of a rule, as Rule 70 says. Thank you.

Adv Golden: Also to confirm that the Speaker had asked the Sergeant at Arms to ask Ms Mente to leave the House, and that she refused to do so?

Mr Xaso: Yes.

Adv Golden: And that the PPS, the female members – we heard what the Speaker said – then entered the House to remove Ms Mente?

Mr Xaso: Yes.

Adv Golden: Okay, thank you. Speaker, that is the… sorry, Chair, that is the end of the video clip evidence that we will rely on. The video clip as you will see is more than five hours long. The relevant portions fall within, let us say, two hours and twenty minutes. I want to emphasise that just for the guidance of the Committee as well. It is not necessary to go beyond that point – the charges all fall, as I said, within the two hour range, two hours ten minutes or so. Mr Xaso, are there any other comments that you wish to make? Otherwise, I just want to confirm certain aspects of the charges with you.

Mr Xaso: No, I have no comments to make.

Adv Golden: Okay, thank you. Then just to confirm, what is your general comments or observations in respect of all three Members when they were removed? What was their behaviour like in terms of the proceedings for the day and in the House?

Mr Xaso: Chair, I would just like to indicate to the House that the proceedings on that day started at 14:03. Under normal circumstances after the announcement by the chair, the question session would have started at 14:05. But that day the question session started at 14:53, which was about forty-eight minutes after the session should have started. That, on its own, is a challenge because it means that the House was delayed in conducting its business – not by design, in terms of what the Programme Committee would have agreed, but by what happened in the House. So what I have observed in terms of how the Speaker applied the Rules, she had read out the Rules that were applicable. Starting with Hon Ceza, she cited the Rules. The fact there is Rule 67, among other things, which says that ‘whenever the presiding officer addresses the House during a debate, any Member then speaks or offending to speak must resume his or her seat and the presiding officer must be heard without interruption’, and various other things that the Speaker said on the day. And when the Member was not in a position to abide by the Speaker that he could not speak, it was the Speaker’s determination that the Member was deliberately disregarding the authority or contravening the Rules, and that the Member was disregarding the authority of the chair. The Speaker then asked the Member to leave the Chamber. Hon Paulsen, in terms of Rule 73(5) ‘no Member may, in any manner whatsoever, physically intervene in or prevent or obstruct or hinder the removal of a Member from a Chamber in terms of these rules.’ Subsection 6 ‘Any Member or Members who contravene Sub-rule 5 may, on the instruction of the presiding officer, also be removed from the Chamber and the precincts of Parliament forthwith.’ And with Hon Mente, the issue we just discussed now, it was not so much about what was said or not said, it was about a ruling of the Speaker not being complied with. The Rules say these rulings are final and must be complied with.

Adv Golden: And in this respect, Mr Xaso – sorry to bother you… sorry to interject – is that Ms Mente was asked to withdraw what the charge sheet describes as a disturbing and volatile exchange and remarks that she had made – and Ms Mgweba as well, we now know, did withdraw her statements. We see from video evidence that Ms Mente did not withdraw, she refused to withdraw.

Mr Xaso: Yes.

Adv Golden: And so refused to obey the authority, in that sense, of the Speaker?

Mr Xaso: Yes.

Adv Golden: In respect of all three Members, do you confirm that they refused to leave voluntarily?

Mr Xaso: Yes, I do. I mean the video is clear evidence of what happened. In fact, I was in the House, but from the video itself… The Speaker would not have called in even the Sergeant at Arms if Members left on their own. I mean this happens, I will not say daily, but regularly, that a Member would, for whatever reason, refuse to withdraw a matter, a statement, and the Speaker asks the Member to leave and the Member just leaves, it is the end of the matter. It is just the end of the matter. There is no Subcommittee on Physical Removal of Members or Rules Committee that considers that – it is the end of the matter. It happens in this Parliament; it happens in other Parliaments. So the requirement for a Member to leave the House at a given point when there is disregard of the authority of the chair, it is a parliamentary practice, really. And, yes, that is what really happened.

Adv Golden: Thank you, Chair. I have no further questions for Mr Xaso.

Chairperson: Thank you, Hon Members. Thank you, Initiator. At this stage I will invite the leader of the affected Members – the legal team of the affected Members – to cross-examine Mr Xaso. Over to you.

Adv Ka-Siboto: Thank you very much, Chairperson. Good afternoon, Mr Xaso.

Mr Xaso: Good afternoon, Advocate.

Adv Ka-Siboto: We have observed your testimony-in-chief. I would like to put a couple of questions to you in respect to the evidence you have given. Just by way of reaffirming, and just as a starting point, a convenient starting point, is to just confirm with you that you advise this House and the Speaker as far as the Rules are concerned – that is your role?

Mr Xaso: Yes, I do.

Adv Ka-Siboto: And you have been doing this, if I understand you correctly, for a period beyond a decade, is it not?

Mr Xaso: Yes, actually, yes, yes.

Adv Ka-Siboto: Well, at least when you put it together. And you have also testified that it is your function to guide the Speaker on the application of the Rules in the House, correct?

Mr Xaso: Yes.

Adv Ka-Siboto: I would then take it that you would have done this throughout the process that leads to the 30th of August, 2022, correct?

Mr Xaso: Yes, I do.

Adv Ka-Siboto: Let us then start with – I want to ask you in chronological fashion. I do not want to start with the evidence as it was presented – the last of the charged Members of Parliament, being Mente, MP. Insofar as your role is, let us start there with the Speaker, it is actually the Speaker who makes the decision in relation to the process of the House and not you, that is correct?

Mr Xaso: That is very correct, yes.

Adv Ka-Siboto: In other words, when a decision is made it is a decision that is made at the prerogative of the Speaker, correct?

Mr Xaso: That is correct.

Adv Ka-Siboto: Which necessarily means it is a state of mind that informs the decision, is it not?

Mr Xaso: Well, decisions are made by the Speaker and I simply advise, yes.

Adv Ka-Siboto: Yes. So in other words, it is the Speaker’s state of mind that informs an eventual decision, is it not?

Mr Xaso: All I can say is that the Speaker is the decision-maker. I will not go into the psychology of how that decision is arrived at.

Adv Ka-Siboto: And because that is the position, you cannot then tell this House what the Speaker’s state of mind and what informed her decision was, can you?

Mr Xaso: What I can tell this House is what the Rules provide for under certain circumstances, yes.

Adv Ka-Siboto: I agree with you. And necessarily then you cannot purport to tell this House what the Speaker had in mind when she made the decisions that she did, not so?

Mr Xaso: I cannot speak for what was in Speaker’s mind, but I can speak of what informs a presiding officer when they make rulings.

Adv Ka-Siboto: As a matter of principle?

Mr Xaso: As a matter of principle and practice.

Adv Ka-Siboto: I agree with you. Let us then deal with Rule 26(4), which would be paginated 41 in the bundle. You will just advise once you are there.

Mr Xaso: I am there, Chairperson. I am using the Rules. I am on Rule 26.

Adv Ka-Siboto: 26(4)?

Mr Xaso: Yes.

Adv Ka-Siboto: Do you mind reading that rule into the record for me, please?

Mr Xaso: Yes, ‘The Speaker must act fairly, and impartially, and apply the Rules with due regard to ensure the participation of members of all parties, in a manner consistent with democracy.’

Adv Ka-Siboto: Yes, so then we can all agree as a matter of principle that when a Speaker makes a decision that decision must be applied consistently throughout all Members of Parliament, correct?

Mr Xaso: Just say that again, the last part.

Adv Ka-Siboto: So we then agree as a matter of principle, based on 26(4), when a Speaker makes a decision that decision or the application of the rule must apply consistently to all Members of the House?

Mr Xaso: We can agree that the Rules say Speaker must apply fairly and impartially and allow the participation of Members of all parties – that is what the rule says.

Adv Ka-Siboto: Correct. Let us deal with the question of Ms Mente. I will not go back to the video. To the extent you contest the version I put to you, then I am happy to have the video played again. But as I observed, Ms Mente specifically asks ‘Speaker, what are you chasing me out for?’ Did you observe her say that?

Mr Xaso: Yes, I believe that she would have said something.

Adv Ka-Siboto: Yes. Not only did she ask once, she asked three times specifically. Do you recall that?

Mr Xaso: Yes, I do, and the Speaker responded.

Adv Ka-Siboto: Yes. And if I recall, the Speaker’s response was to simply say ‘Given the chaos that culminated…’, I am paraphrasing her wording, ‘I am asking you to withdraw’. Correct?

Mr Xaso: Speaker said ‘I saw the altercation between the two of you, Hon Members, and I am asking you to withdraw.’ And, of course, she asked Mgweba, who did not contest, who withdrew. Out of the principle of consistency, it was, therefore, the Speaker’s decision to ask Ms Mente to also withdraw.

Adv Ka-Siboto: But the Speaker does not know what Ms Mente said, is it not?

Mr Xaso: No, she does not know. As much as she does not know what Mr…

Adv Ka-Siboto: Ms Mgweba?

Mr Xaso: No, Minister of Justice, Minister Lamola said. But she still asked Mr Lamola to withdraw.

Adv Ka-Siboto: No, no, do not draw comparisons for me, Mr Xaso. Can I ask, Mr Xaso, that you answer the question and not draw comparisons for me? I am asking you a specific question. The Speaker does not know what Ms Mente said, is it not?

Mr Xaso: No, she does not.

Adv Ka-Siboto: Yes, she does not. If then she does not know what Ms Mente said, it cannot be in terms of the Rules…

Ms Mente: Chair, we have lost them. We cannot hear.

Chairperson: You are right, Hon Mente, but we must just wait because this was happening throughout. I believe they will fix it. Technical, can you assist us? We cannot hear speakers from the House.

Committee Secretary: Hello, Chair. Can you hear me?

Chairperson: Yes, I can hear you.

Committee Secretary: Okay, Chair. We will proceed.

Chairperson: Thank you.

Adv Ka-Siboto: Thank you very much. Mr Xaso, where I was with you is you had made a concession that the Speaker does not know what Ms Mente said, correct?

Mr Xaso: The Speaker, Chair, does not know what Ms Mente said, in the same way that she does not know what Ms Mgweba said.

Adv Ka-Siboto: Nonetheless, she asked Ms Mente to leave the House, is it not?

Mr Xaso: No, she asked Ms Mente to withdraw what she said; the same thing that she did to Ms Mgweba.

Adv Ka-Siboto: Indeed. The Speaker asked Ms Mente to leave the House, did she not?

Mr Xaso: She did, after Ms Mente refused to withdraw the remarks.

Adv Ka-Siboto: Correct. And what precipitated her asking to leave the House was her asking Ms Mente to withdraw, is it not?

Mr Xaso: Yes, it was her asking Ms Mente to withdraw and Ms Mente saying expressly and explicitly that she was not going to withdraw.

Adv Ka-Siboto: This is interesting, Mr Xaso. I wanted to take you to the Hansard in relation to Mr Dhlomo specifically. This is in paginated page 385 of the Hansard. If you are interested in reading it with me, I will give you an opportunity to get a copy, but I can read it into the record at the moment. What preceded this engagement was Dr Dhlomo, MP, who is a member of the African National Congress. He is alleged to have said something that is unbecoming to the House. The Speaker then asks Mr Dhlomo to confirm if what he is being accused of having said is true or not. You then go to page 385, and there you get the Speaker’s response after engagement with Mr Dhlomo. This is what the Speaker says ‘Okay, thank you very much Hon Zulu. Hon Members, order. Order, Hon Members. Hon Members, order please. There is a matter which has been raised here. Not only has it just been raised. I heard it all, but there was somebody I recognised on the floor. I was asking…’ and this is the important part ‘Hon Member, Dr Dhlomo, to clarify what he had said which had annoyed Hon Mkhaliphi. Now, Hon Dhlomo has referred me to the Hansard. I will check the Hansard and come back and rule on the matter.’ Do you confirm that is what she said?

Mr Xaso: Yes, I do, Chairperson.

Adv Ka-Siboto: Do you confirm that the Speaker here is not asking Hon Dhlomo to withdraw? She is prepared to pend her decision on the basis of Hon Dhlomo contesting the version that is given to the Speaker. Do you confirm that?

Mr Xaso: No, I confirm that, Chair. Also to just reiterate the point I made, a similar situation happened with Hon Lamola and the Member was asked to withdraw, and he withdrew, and Mgweba as well. Yes.

Adv Ka-Siboto: No, that is not the question I am asking, Mr Xaso.

Mr Xaso: No, no…

Adv Ka-Siboto: I promise you, you will get an opportunity to expand and reply because then I lose my train of thought and questioning once you expand on an issue I am not addressing with you. So, please, bear with me. I am saying to you, Mr Dhlomo did not withdraw. The Speaker was prepared to pend her decision because she could not confirm what Mr Dhlomo had said. Is that not so?

Mr Xaso: Yes, I confirm that this is what happened with Mr Dhlomo.

Adv Ka-Siboto: Yes. The exact same thing happens to Mente, MP; in fact, she asks ‘What did I say?’ You confirm the Speaker did not hear it, but nonetheless, she insists that she withdraws, is it not?

Mr Xaso: Yes, she does, and she does say what she had seen.

Adv Ka-Siboto: Yes, but then the decision is different in respect of materially the same sort of facts, is it not?

Mr Xaso: The decision, as I saw it, is that the Member was then asked to withdraw.

Adv Ka-Siboto: I agree with you. I get the sense you are trying to avert the conclusion I am getting at. It is quite smart of you as a lawyer – I would expect you to. But the principle, I am sure you appreciate, Mr Xaso, do you not?

Mr Xaso: Chair, I do not know where the Advocate is getting to, so I cannot anticipate what he wants to say, but, yes, I am with you.

Adv Ka-Siboto: And assume I am right; assume that the Speaker applied the same principle inconsistently. Let us assume, for a second, that is the case. Had then the Speaker applied the same rule consistently i.e. she did not ask or insist that Dr Dhlomo withdraw. Subsequent to that, she would not have asked Mente, MP, to withdraw. And had she not asked Mente, MP, to withdraw, then what she is being charged with would not have happened, is it not?

Mr Xaso: Yes, that would have happened. I think it is important to state that the issue of Ms Mente must be seen in the context of the issue of Ms Mgweba. Thank you.

Adv Ka-Siboto: I am not too sure I get the answer. Please assist me? When you answer, please start with a yes or no, and I promise you if you ask me to expand then I will make a decision as to whether I am letting you. I promise you, if I am misleading, I am sure the Initiator will redirect you with the right questioning. I am just more interested in you answering my question directly without qualification. I am saying to you, if I am correct in my suggestion that had the Speaker applied the same rule, the same way she applied it to Dr Dhlomo, then she would not have insisted that Mente, MP, leave the House. And I think there we agree. I am saying had that been the case then Ms Mente would not have been asked to leave the House, is it not? Because of the chronological flow of events, is it not? The one being packed on the other.

Mr Xaso: Chair, it is difficult to speculate.

Adv Ka-Siboto: That is quite interesting.

Mr Xaso: I do not know what Ms Mente would have done or not done.

Adv Ka-Siboto: That is precisely my difficulty, that you have been purporting to speak for the Speaker and what informed her decision because it is what the Rules say, and that was your advice to her; you are prepared to speculate on that basis. I am now pinching the toes, and now suddenly you are not prepared to make the same speculations. That is the difficulty I am having here. I am saying to you, on the application of the Rules – and I am asking you to apply the same way you have been applying them when you were leading the evidence-in-chief. I am saying to you, as a matter of rule and principle, if you are not being asked to withdraw, it cannot be then that you are asked to leave the House for failure to withdraw.

Mr Xaso: Of course.

Adv Ka-Siboto: Yes.

Mr Xaso: Yes.

Adv Ka-Siboto: Yes. But for the Speaker insisting that Ms Mente withdraw, she would not have had to leave the House, is it not so?

Mr Xaso: Yes, that is so. And I am hoping that later on you will allow me to expand, thanks.

Adv Ka-Siboto: No, I am pretty sure if the Initiator is interested in an expansion she will direct you there; me, not so much. Let us go to the second witness, which is now, Mr Ceza.

Mr Xaso: You mean the second charge?

Adv Ka-Siboto: No, no.

Mr Xaso: You said witness.

Adv Ka-Siboto: No, I see what you mean. So I mean in my order. So in my order I have Ms Mente first, now I want to deal with Mr Ceza. We have observed the engagements between the Speaker and Mr Ceza, and I do not want to take you there. I just want to speak on the issue of what it is that you observed. Did you perhaps have the benefit of what the engagement was between the security personnel and Mr Ceza?

Mr Xaso: Can you please clarify that point?

Adv Ka-Siboto: What I mean is, do you know what verbal exchanges there were between Mr Ceza and the security service after he had refused to leave the House?

Mr Xaso: No, I do not know.

Adv Ka-Siboto: So you cannot speak to that?

Mr Xaso: No, because I was not in the space where I could hear what they were saying – the security services.

Adv Ka-Siboto: I accept that.

Mr Xaso: Yes.

Adv Golden: Sorry, Chair, if I could just clarify? The verbal exchanges with the security services, after Mr Ceza refused to leave the House, is that what is being asked of the Witness?

Adv Ka-Siboto: Correct, that is the question. So…

Adv Golden: Okay, just to avoid any confusion and just to be, I think, fair to the Committee and Mr Xaso, what security services are you talking about, because the security services only come in after the refusal, not before?

Chairperson: Thank you. Proceed, Advocate.

Adv Ka-Siboto: To the best of my recollection there was only one instance where there were engagements between the security personnel and Mr Ceza. Is that not the case?

Mr Xaso: Chair, just to try clarify, again, the point. The steps were Mr Ceza being asked to leave or directed to leave; refusing the Sergeant at Arms; then being asked to approach Mr Ceza; and Mr Ceza refusing to leave as assisted by the Sergeant at Arms; and then the PPS being asked to remove Mr Ceza.

Adv Ka-Siboto: Yes, I am talking about the PPS. I am saying there was only one engagement between Mr Ceza and those security services, is it not so?

Mr Xaso: Yes.

Adv Ka-Siboto: So I must be talking about the circumstance, is it not?

Mr Xaso: Yes.

Adv Ka-Siboto: Yes. I am saying to you, you could not observe their verbal interaction, not so?

Mr Xaso: No.

Adv Ka-Siboto: Yes, so you do not know what they said to each other.

Mr Xaso: No, I do not know.

Adv Ka-Siboto: And I am saying to you he is going to take the stand. I am going to call him either today or tomorrow, and what he is going to tell you is that he did not refuse to leave Parliament. He is going to tell this House that there was an engagement between Malema, MP, and the Speaker, on the question of him being warned before he is asked to leave. The reason he did not vacate the House at the time was not in defiance of the Speaker’s ruling, but rather to get confirmation as to what is the Speaker’s ultimate ruling, following what Malema, MP, has invited the Speaker to do. Do you have a comment on that?

Adv Golden: Sorry, Madam Chair, my learned friend just went a little bit too quick for me. If he could, please, just repeat what will be the version of Mr Ceza, so we can take down as accurately as possible. Thank you.

Adv Ka-Siboto: I am not going to use the verbatim language he is going to use because I do not know how he is going to phrase it, but the principle is this: Mr Ceza is going to come and testify that he was not defying the Speaker for the sake of defying the Speaker. In fact, he is going to testify that he can be observed standing at one point. And then at another point, various Members, including Malema, MP, say ‘but Speaker, warn him first’. In other words, you cannot just kick him out without warning. Now we can debate the merits and the demerits of whether a warning is something the Speaker is supposed to issue first. But Ceza’s submission is simply, ‘Well, I do not know what the Rules provide for. I hear now that there is a debate as to whether I am entitled to a warning or not. So after standing up, being prepared to leave, I hear this engagement. I then take the seat, just so now the issue is resolved between the Speaker and Malema, MP.’ Do you have anything to gainsay that?

Mr Xaso: Chair, the only thing I can say, given that you have asked me if I have anything to say there, is that a Member who is aggrieved by a ruling of the presiding officer has an opportunity to approach the Rules Committee for that committee to discuss the matter. Now, that has not happened, up to now. So I do not know what happened between Mr Ceza and the security people. That is my response.

Adv Ka-Siboto: Thank you, Mr Xaso. Let me now take you to the issue of Paulsen, MP. Did you have the benefit of observing the verbal communication between Mr Paulsen, MP, and the protection services, at the point the protection services sought to evict Mr Ceza, MP, from the House?

Mr Xaso: Chair, not the verbal exchange, if there was any, but the physical interaction I did observe.

Adv Ka-Siboto: This is interesting, because you would have observed earlier on I took issue with how the Initiator was posing questions to you precisely because it takes us to this point, where she gives a version and she asks you to confirm it, and you either confirm it or correct the version she was asking you to confirm. And it related to this particular issue where she said ‘Well, can you confirm that Mr Paulsen was fighting with the protection services?’ You corrected her. What did you say was happening?

Mr Xaso: I will not be verbatim; I said something to the effect that I saw Mr Paulsen interfering with the protection services – not in a friendly manner. She asked if he was fighting – if he fought – if I remember well. I did not use the word fight, I said ‘interfered, not in a friendly manner’. Yes.

Adv Ka-Siboto: Correct. And just by way of correction, she did not ask you, she was telling you, asking you to confirm and you refused to confirm, and then you chose to phrase it in the manner you are phrasing it now. It is important because that is his version as well, that, firstly, he was not fighting. He is going to come and testify that the interactions between himself and the protection services were not, again, for the sake of undermining the authority of the Speaker. He is going to come and testify that he stood up, he approached the protection services, he put his hand up to stop them, and specifically said ‘wait, before you take him out, there is an engagement around whether he should be kicked out or not.’ Do you have anything to gainsay that version?

Mr Xaso: No, I have nothing to say because that is his version and all I can tell you, when you ask me, is what Rule 73(5) says. That is all.

Adv Ka-Siboto: Yes. What I am getting at is this, if their versions are true, then you can hardly say they are acting contemptuously towards the Speaker or Parliament, is it not?

Mr Xaso: Chair, it really will be for this Committee to make that determination, not for me.

Adv Ka-Siboto: But you can accept, as a matter of principle, that there cannot be contempt without intention, is it not?

Mr Xaso: Chair, again, I will not venture into that. The Committee must apply its mind.

Adv Ka-Siboto: I am putting it to you that you can never negligently be in contempt. Do you have anything to…?

Mr Xaso: I do not know, Chair.

Adv Ka-Siboto: Very well. Apologies, I will just confirm.

Mr Xaso: No problem.

Adv Ka-Siboto: I want to take you to Mr Zungula’s comment in the same sitting. I will just confirm with you now where you can find it in the Hansard. It is on page 482 of the Hansard, where, Zungula, MP, addresses the Speaker. I will just give you a moment to get there.

Mr Xaso: You said 482, right?

Adv Ka-Siboto: Yes, Sir.

Mr Xaso: Yes, I am there, Chairperson.

Adv Ka-Siboto: Just out of interest, the Speaker had given an undertaking, after Mente had asked her over and over ‘what am I going to withdraw?’, that she would refer to the Hansard and confirm with Mente. You do know that has never happened to date, is it not, Mr Xaso?

Mr Xaso: Yes, I do. And I can indicate why, if you are interested in that?

Adv Ka-Siboto: Sure.

Mr Xaso: May I?

Adv Ka-Siboto: Sure.

Mr Xaso: Should I proceed?

Adv Ka-Siboto: Yes, please.

Mr Xaso: Yes, when the matter then served before the Subcommittee on Removal of Members, and subsequently before the Rules Committee, the issue was outside of the House. It was not for these structures to deal with this issue. That is why going back to the House and basically running a parallel process would not have made sense. So it is now for these structures. If Ms Mente, Hon Mente, would like to raise that in her defence, I mean, the Member would be, of course, at liberty to do that.

Adv Ka-Siboto: Sure, but you did advise this Committee that you advised the Speaker on what is appropriate in terms of steps, is it not?

Mr Xaso: Yes, I do.

Adv Ka-Siboto: You also confirmed that you were actually part and parcel of the meeting that followed, which meeting produced the report of the Speaker, is it not?

Mr Xaso: Yes.

Adv Ka-Siboto: If your function is to advise the Speaker, surely that includes ensuring that she undertakes… the functions she is undertaking, she will do, is it not?

Mr Xaso: Yes, it involves that, and it also involves me advising her whether it would still be appropriate to deal with a matter which is being dealt with by another structure.

Adv Ka-Siboto: So you are saying that it is appropriate to raise a charge? You would appreciate the political implications of punishing a Member of Parliament? You are saying you are prepared to go ahead and charge a Member on the basis of a factual issue that has not been resolved, and which is the basis of the charge; are you saying that is in order?

Mr Xaso: Chair, can I just say again the point I made initially? The basis of this charge is a Member refusing to abide by the directive of the chair – that is the basis of this. Again, I have also indicated that when a Member is unhappy with a ruling of the presiding officer, there is a forum of the Rules Committee where the matter could be raised. That matter was not raised there. The Member could have because the Rules say Members must comply with the rulings of the presiding officer – that is Rule 8(2) and (3) – so the Member was supposed to comply with the ruling, and then challenge that issue, and then Speaker could have then gone back to the House if she thought it was necessary to do that. Thanks.

Adv Ka-Siboto: Let us assume that the Speaker makes an improper decision and kicks out a Member of Parliament, you appreciate that limits unlawfully the relevant Member’s right to participate in the House, and you can never correct that post ex facto, not so?

Mr Xaso: Chair, the point that I would like to make is that there are rules that must be complied with, and those rules say ‘rulings of the presiding officer must be complied with’. So Members are expected to comply with those rules, hence, I mentioned the recourse of the Rules Committee. If a Member is of the view that [how] a matter was dealt with was incorrect then that structure will pronounce on the matter. Thanks, Chair.

Adv Ka-Siboto: I am gonna ask again Mr Xaso, that you answer my question. I am saying if a Member of Parliament is kicked out of Parliament unlawfully so, regardless of what remedies they have, you can never undo that prejudice to that Member of Parliament.

Mr Xaso: Chair, the point I am not going to respond to is the ‘unlawfully so’ matter. If a Member, obviously, is asked to leave the House in terms of the Rules, obviously the Member will not participate in what follows after that order.

Adv Ka-Siboto: I am saying as a matter of principle. I am not talking about this particular disciplinary hearing. I am saying postulate a scenario as a matter of principle, and it is accepted, where if a Speaker makes an unlawful decision to kick out a Member of Parliament, whatever recourse that Member has after the fact can never undo that prejudice, as a matter of principle.

Mr Xaso: Chair, I want to state firstly, because we are dealing with this case here – I mean, I do not want to speculate on issues – in this matter, as far as I am concerned, everything that the Speaker did was in compliance with the Rules. So how another forum would find whether a matter was unlawful or lawful is really not for me to say. So that is all. I cannot take the matter beyond that, Chair. Thank you.

Adv Ka-Siboto: Very well, Mr Xaso. So, Mr Zungula, at the page I have referred you to, says ‘Speaker, I think, let me start by saying you are not fair. You are not objective. And if there is any breakdown in the decorum of the House that is the reflection of you being a Speaker. You stated when Hon Shivambu was speaking that he must not make a speech, a few minutes later, Hon Pambo speaks and he makes a speech for more than 20 minutes – you allowed him to speak. Hon Hadebe spoke, and after he spoke you allowed Hon [name inaudible] to speak after him, then Hon Matumba rose’, and so on, he goes. Ultimately, he concludes by saying that ‘because you allowed the Hon Members from the ANC to speak one after the other, when Hon Matumba is rising on a point of order you did not want him to speak. So that is what I am raising, that you are not fair. And the reason why there is always a breakdown in the decorum of the House is because you are failing to apply your duties objectively and fairly.’ I want to draw your specific attention to two role players in the sitting of the 30th of August 2022. I am suggesting to you that Hon Ceza asked for a point of order for the first time and the Speaker did not recognise him. The first time he raised a point of order the Speaker did not recognise, not knowing what it is that he was going to say. I am going to suggest to you that Hon Hadebe asked for points of order three times, none of them were rejected. He was allowed to speak on three occasions. You then have Hon Ceza raising a point of order, again. And the first time he actually raises a point of order he is asked to leave the House. Now, I am saying to you, let me start here with that background in mind. I am pretty certain that you are familiar with the case law that says you deal with Members of Parliament as Members of Parliament and not as a collective of political formations. Do you accept that?

Mr Xaso: Chair, Members indeed are here, of course, through their parties but they are dealt with as Members. Of course, depending also on the context. Yes.

Adv Ka-Siboto: In other words, when someone raises a point of order they are not raising a point of order on behalf of their political party, they are raising it as an individual Member. Do you accept that?

Mr Xaso: Indeed, they are raising it… well, yes, as an individual Member. Yeah.

Adv Ka-Siboto: In other words, you cannot make a decision as to whether you allow a point of order on the basis of what political party someone is from. Do you accept that?

Mr Xaso: You can make a decision, a ruling, on the basis of what Members in the House are doing, generally, not necessarily political parties but Members – the situation that is caused by Members in the House, yes.

Adv Ka-Siboto: I will take that to be you accepting that as a matter of principle Members raise points of orders as individual Members of Parliament.

Mr Xaso: Yes, I do take that point.

Adv Ka-Siboto: And then you have Hon Hadebe raising three points of order without any context or without any objection from the Speaker. Do you accept that?

Mr Xaso: Except that, Chair, he is not the only one who raised more than one point of order in the House.

Adv Ka-Siboto: That is precisely the point. That is exactly the point I am getting at.

Mr Xaso: Yes, he is not the only one who raised a point of order. Yes.

Adv Ka-Siboto: Yes, and in his case not once does the Speaker say ‘you can speak’, not one time. Do you accept that?

Mr Xaso: Chair, all I know is that Mr Hadebe was allowed to speak by the Speaker – he was permitted to speak.

Adv Ka-Siboto: No, no, I am asking a different question. I am saying Hon Ceza was not allowed to speak not once by the Speaker. Do you accept that?

Mr Xaso: Hon Ceza spoke unrecognised, and when the Speaker tried to explain, Hon Ceza continued speaking. The Speaker’s view was that he was disregarding the authority of the Speaker.

Adv Ka-Siboto: In other words, he was never allowed to speak by the Speaker?

Mr Xaso: No, he spoke. He was never permitted to speak. He spoke, and when Speaker tried to stop him he continued to speak.

Adv Ka-Siboto: In other words, every time he asked for a point of order, not once has the Speaker allowed him to speak?

Mr Xaso: Just say that again?

Adv Ka-Siboto: In other words, of all the times he asked to speak, not once did the Speaker say ‘Yes, I recognise you’? That is the question I am asking you.

Mr Xaso: Who?

Adv Ka-Siboto: As to what Mr Ceza does or does not do is not what I am concerned about. What I am specifically asking you – not once did the Speaker recognise Hon Ceza?

Mr Xaso: Because Hon Ceza did not even ask to be recognised. He just…

Adv Ka-Siboto: That is not true.

Mr Xaso: Okay, that is my recollection. We can check it again. But, in any event, he spoke and when the Speaker intervened, Hon Ceza continued to speak.

Adv Ka-Siboto: I do not want to be unfair to you. If you are interested I could take you to the Hansard, on multiple occasions he is asking to speak and not once is he allowed. So do you accept my version to you or would you be interested in me taking you there.

Mr Xaso: I will take your version, but I am talking about the instance where Hon Ceza was asked to leave the House.

Adv Ka-Siboto: Yes.

Mr Xaso: Yes.

Adv Ka-Siboto: And before we get there, you do not contest my version that on multiple times he is asked to speak and he was never permitted?

Mr Xaso: No, I will not contest it because I have not verified it.

Adv Ka-Siboto: Precisely. And if that is the case then, again, at the face of it, there is an inconsistent application of the same rule by the Speaker, which you have just confirmed that many people have been allowed to speak more than once, but for some reason not once is Hon Ceza recognised.

Mr Xaso: Chair, I think the point I would really want to make, and I think I have to make this point: you always have to consider the context in which things happen, and you consider the buildup of events in the House, and the stage at which the instance of Mr Ceza occurred, because it was at the point when Speaker had said ‘At this point, I am reading Rule 70, and I am saying I am not going to be taking any further points on this matter.’ And in defiance of that, the Hon Member responds. And when Speaker tried to intervene, the Hon Member continued to speak.

Adv Ka-Siboto: And this is quite interesting and I am happy you took me there. So despite the Speaker saying that, Hon Hadebe yet again stood up and the chair allowed him to speak.

Mr Xaso: Chair, I think when you consider the issue of Hon Ceza and the ruling you must consider the context in which it happened, and how the Member was addressing the chair, and on what point the Member was speaking when he addressed the chair – and the chair took all of those things into account and was clearly of the opinion that the Member was disregarding the authority of the chair.

Adv Ka-Siboto: And again we are back here, Mr Xaso. You have just now speculated on what the state of the mind of the Speaker was because it is convenient for you to do that now. I had asked you previously to give me a summation as you see it. Your answer, because it was not convenient for you to answer because you knew where I was going. You refused, claiming you cannot speculate what the state of the mind of the Speaker is. It is convenient for you to do it now. You are speculating. Do you have a comment for that?

Mr Xaso: Chair, that is the Advocate’s view, it is certainly not my view. My view is guided by what the Rules provide and what the scenario was in the House. So I deny that version by Advocate, with respect. Thank you.

Adv Ka-Siboto: If you can just give me a moment again.

Chairperson: Hon Members, we have got two minutes left. What should happen [is that] we will have to adjourn for today and we will resume tomorrow at 10:00. So thank you so much, Advocate. We will meet tomorrow. Thank you. The meeting stands adjourned.

Adv Golden: Sorry, Chair, if I could just clarify? Will cross-examination continue tomorrow?

Chairperson: Yes, yes, it will. I would like the leader of the affected Members to proceed with the cross-examination.

Adv Golden: Thank you, Chair.

The meeting was adjourned.