Public Enterprises Budget Vote 2019 incident: hearing day 1

Meeting report

Opening Remarks
The Chairperson welcomed everyone. He explained that the meeting was being held to deal with the incident that happened during the Public Enterprises Budget Vote 2019 in Room 249 on 11 July 2019. It had been referred to the Powers and Privileges Committee by the Speaker of the National Assembly, Ms Thandi Modise. The hearing had been scheduled for the meeting that day, 24 November 2020.

The Chairperson stated that he had received a report on the Committee meeting held some two to three weeks back. The report would be circulated to Members so that it could be approved some time during the week. The minutes of that meeting would be finalised during the week. He requested Members to consider the report and send their comments to the secretariat.

The Chairperson noted that at the last meeting it had determined that the meeting would be a hybrid meeting and those Members who could not travel would be on the virtual platform. He requested that it be confirmed by one of the staff members.

The secretariat explained that this venue was not yet for a hybrid meeting, nor were any other venues ready for hybrid meetings at that time. It was hoped that the venues would be ready by the beginning of December 2020.

The Chairperson stated he had been under the impression that the venue was ready but as it was not, Members who were not physically in the venue would not be able to attend the meeting. The information provided had been that it was possible. The information should have been communicated in advance so that Members could be advised of the situation. He had been speaking to one of the Members who had been in hospital the previous week and he had assured her that she could join online. Unfortunately, she could not do so. However, the Committee was quorate so the meeting could commence.

Parliamentary Rules
The National Assembly Table had brought a matter to his attention so he requested an official from the Table to clarify the matter for the Committee.

Adv Victor Ngaleka, Procedural Advisor, National Assembly Table, referred the Committee to Parliamentary Rule 213(2): Meetings of the committee must be held in closed session when the committee considers a matter affecting a specific member or members and the committee regards that matter to be confidential, unless the committee decides to open a meeting in the public interest.

He explained that if the Committee was considering a matter relating to Members, and it considered that matter confidential, the meeting should be held in camera, unless the Committee decided otherwise. The Committee had to consider the matter and take a decision. Members were involved, so the matter could be confidential, but the Committee would have to decide if the public interest overrode such considerations.

The Chairperson stated that he saw no reason for closing the meeting but he invited Members to comment. The question was whether public interest overrode issues of confidentiality. Would there even be anything confidential?

Ms D Peters (ANC) stated that it was the first time that she had served on the Committee, so she asked for advice from the Table as to whether a precedent had been set. She agreed that public interest was a consideration but what was the previous experience in this Committee with regards to matters involving Members.

Adv Ngaleka advised that at the last hearing held in 2014, the matter was considered and decision was taken to open the meeting to the public.

Ms Peters noted that all Committees of Parliament were open to the public so she would recommend that the Committee take that approach.

Mr D Stock (ANC) supported the proposal to open the hearings to the public.

The Chairperson concluded that the hearings would be open to the public as there were no confidential matters that required that the meeting should be closed.

Correspondence relating to the hearing
The Chairperson stated that, in terms of the agenda, the Committee was there to have a hearing on the incident that happened on 11 July 2019

He was aware of correspondence between Parliament and the Members who had been charged, through their representatives. He did not see the Members present but he assumed that there was an explanation.
Adv Ncumisa Mayosi of the Cape Bar had been appointed by Parliament as the initiator for the Committee. The Chairperson requested her to address the Committee.

Briefing by Adv Mayosi
Adv Mayosi stated that the genesis of the matter was an incident that had occurred in the same Chamber that the Committee was meeting in, on 11 July 2019. Following this, the Speaker referred the circumstances of the physical removal of members of the Economic Freedom Fighters from the mini-plenary on Vote 9 – Public Enterprises on Thursday, 11 July 2019, together with the unrevised Hansard, Minutes of the Proceedings and a video recording of the proceedings in question to the Subcommittee on Physical Removal of Member from Chamber for consideration, in terms of Assembly Rule 73(12).

The Subcommittee made several recommendations including: The movement of the EFF members onto the floor space of the Chamber, to prevent the Minister from delivering his speech and/or to intimidate him, constituted a breach of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004, and the Speaker should refer this matter to the Powers and Privileges Committee, as this amounts to a violation of parliamentary privileges. 

Adv Mayosi indicated that she was appointed as the initiator and charges were then formulated against the affected Members and notices containing the allegations against them were served on Members on Thursday 5 and Friday 6 November 2020. The Schedule to the NA Rules set out the procedure that the Powers and Privileges Committee would apply to any investigation into contempt of Parliament. Item 1 of the Schedule required that Members be given five working days’ notice of hearings. The Members were told the hearings would resume on Tuesday 17 November 2020.

The correspondence then began between the Acting Secretary of Parliament, Ms B Tyawa, who had signed the notices to the Members, and Ian Levitt Attorneys who were representing the Members. The first letter, the first of five, was received on 11 November 2020. In the letter, four requests were made. The attorney indicated that he acted for all affected Members. The Members had been informed that they had the right to provide explanations, either orally at the hearing or in writing. Written explanations had to be submitted by 13 November 2020.

In that first letter, the attorney stated that the Members had elected to submit written representation but they asked whether, in the light of their written representations, the physical hearings would continue in any event. The Members also asked if the attorneys and their counsel would be able to represent the affected Members should the hearings continue. The letter also contained a request for the indefinite postponement of the hearings and, given that as of that date, they had not been furnished with the unrevised Hansard and video footage, they would not be able to meet the required date of 13 November. The Members requested permission to file on 1 December 2020.

The Acting Secretary of Parliament drew the attention of the attorney to the provisions of the Schedule which was clear in respect of the rules relating to legal representation. In the ordinary course of a hearing, Members were entitled to be assisted by other members. External legal representation was allowed only where the Committee had given its approval. She did not accede to the request to postpone the hearing indefinitely, but she provided the unrevised Hansard and the video footage and, to give enough time for the written representations, extended the date for written submissions to 23 November 2020. She informed the attorneys that the hearings had been postponed until 24 November 2020.

The second letter came from the affected Members’ attorneys on 13 November 2020. That letter raised a number of issues. There was an allegation of gross irregularity because the affected Members had not been consulted about the date for the hearings. There was also an apprehension that the Members would not get a fair hearing as the issue had been pre-determined. That complaint arose from the fact that if the Acting Secretary had said that the Members could provide written representations on 23 November and the proceedings would commence on the 24th, that meant that the representation would not be fairly considered.
Questions were asked as to who had made the decision to postpone the hearings, under which rule had the decision been taken, when had the decision been taken, and so on.

The Acting Secretary responded. She denied any prejudice and reminded the attorney that he should be making the representations to the Committee. The attorney was engaging her when he should be engaging the Committee. Nothing had been pre-determined; Parliament was following procedure as set out in the Schedule.

A third letter from the attorney set out a number of procedural and substantial complaints. It repeated some of the issues raised and raised new issues. In essence, four demands were made in the letter:
-that the hearings be conducted by a retired judge or practicing senior counsel;
-that the hearing not proceed until the Committee had come to a decision regarding how the hearing was to be conducted;
-that the hearings be postponed indefinitely;
-that the Members be given an automatic right to legal representation.
Should the Acting Secretary not agree to the demands, the attorney had instructions to approach the courts for appropriate relief.

In response, the Acting Secretary made it clear that the representation should be properly directed to the Powers and Privileges Committee and that she did not want to entertain further correspondence on the matter. She advised that the affected Members consult the parliamentary Rules in respect of their rights.

No written representations had been received by 23 November 2020.

The fourth letter was received from the attorney that said that the counsel had been exposed to someone who tested positive for Covid-19. The counsel had gone for a Covid-19 test. The Acting Secretary did not respond.

The fifth letter was received from the attorneys that day, 24 November 2020. It stated that the tests had come back negative and that the counsel and the attorney would attend the hearing the following day. It was requested that the proceedings be adjourned until the following day.

Adv Mayosi informed the Committee that those were the matters before them and that the Committee had to apply its mind to whether it would adjourn until the following day. She was not aware of a request for external legal representation, so she did not know how the adjournment could be based on the unavailability of legal representation. She advised the Committee to be aware of the fact that no permission had been provided for legal representation. However, she advised the Committee have regard for people’s right and consider weighing up the potential prejudice of continuing the hearing in the absence of the affected Members against the prejudice to the Committee. Fairness was a balancing act and not a perfect science and one needed to be aware of issues around prejudice and it might outweigh the prejudice of making the Committee wait. In her view the prejudice suffered by the affected Members might be greater than the prejudice suffered by the Committee in adjourning for a few hours.

Adv Mayosi addressed the lack of permission to have external legal representation. How could the Committee agree to adjourn to allow Members something that was not in their rights? She believed that the Committee could choose to adjourn, even in the light of that fact. The Committee could record that the adjournment was in the light of fairness and not because the legal representation was not available as that had not been allowed. Her advice was that she would be disinclined to continue when the Members had indicated that they would attend on the morrow. If they were not in attendance on the first day, they would not be able to question witnesses from that first day.

From the initiator’s process, and desiring the process to run in a particular way, she would be disinclined to continue the process that day and to lead evidence in their absence when the affected Members had stated that they would attend the following day. That would complicate the procedure. Those Members would be entitled to obtain the transcript of the day’s proceedings, and they might not be able to cross-examine witnesses because the evidence had been led in their absence and many complications could arise.

Chairperson’s summary
The Chairperson noted that there had been a lot of correspondence and exchange between the Members and their legal representative and Parliament. The Members were not in attendance and Committee would have to decide whether proceed in their absence or to indulge their request to postpone until the following day.

There were two issues: those Members were not automatically entitled to legal representation and they had to apply to the Committee should they wish to make use of legal representation. The Members were entitled to make representation formally to the Committee, and to which the Committee had to apply its mind.

The Chairperson emphasised that the affected Members had not asked for legal representation so that could not be addressed. The reality was that the Members were not there. He reminded Members that the initiator had requested that they weigh up issues of fairness against rights and that she would be inclined to accede to their request to not proceed that day.

He asked for the views of Members.

Discussion
Mr Stock thanked the advocate for her comprehensive briefing. Her proposal to postpone the hearing based on fairness and legal rights had persuaded him to propose that the meeting be adjourned and commence the following day, so as to start with a clean slate. He noted that there had been extensive correspondence between the Acting Secretary of Parliament and the attorney representing the affected Members. He had a problem regarding the legal representation because of the communication engaged in between the charged Members, the Acting Secretary and the legal representative. Why was the question of the legal representative not addressed previously? If the Members were supposed to apply for permission, why had it not been raised then and why the Committee was asked at that late stage?

He said that the Committee needed to determine whether those Members were permitted legal representation. He proposed that the Committee apply its mind. If the Committee agreed to postpone until the following day, he wanted to be clear about how the Committee would handle the hearing. He did not want to have discussions about legal representation when the Committee sat the following day. Adv Mayosi should clarify for the Committee the difference between legal assistance and legal representation and also consider the issue of precedence in similar hearings.

He proposed that Adv Mayosi clarified the issues regarding legal representation and legal assistance so that the Committee knew that it was acting within the rules.

The Chairperson stated that there was no application before the Committee for legal representation and the Committee could not consider something that was not before it. The Committee could not anticipate what those Members were going to request and grant approval without a formal request as that was a procedural matter. The Committee would be advised appropriately at the time. The question before the Committee was whether it was proceeding or postponing matters to the following day

Dr M Ndlozi (EFF) said that it was not fair to be given an oral report of correspondence. It was not fair not to give Members copies of the correspondence. They needed to see the correspondence for themselves. How did the Committee know if it was accurate? It was not fair. It was the Committee’s business and it was not brought to the Committee but the Initiator had told them what people had written and she had given her opinion, but had not given Members the correspondence that dealt with the Committee matters. He could not make up his mind without seeing the correspondence.

Without seeing the correspondence, he could not address it. How did he know that the Members had not requested legal representation? The correspondence should have been brought to the Committee which was obliged to be fair. There was no given format for the application so a mere request could be seen as an application. The correspondence asked about a legal representative: was that not an application? The rules did not state the form of the application. Something was wrong. Why had the Chairperson not printed out the letters? It had to be fair and people could not play tricks on the Members.

He reminded the Committee that in the previous virtual meeting the Chairperson had informed Members about the correspondence and the consequent change of date for the hearings. The Chairperson had announced the postponement without explaining or giving Members copies of the communication. It was not an excuse to say that they had written to the Acting Secretary of Parliament. Someone else could not make up her mind on behalf of the Committee.

Dr Ndlozi stated that there were demands, or requests, about the procedure that the Committee should have applied its mind to. If the procedure affected people and they were complaining about it, the Committee should know. The Act was very clear: whatever one did, one had to be fair. It was an excuse that they had written to the Secretary and not the Committee. People wrote to Parliament all the time and the Acting Secretary should have handed over the correspondence. Now the Committee was being told about a challenge about the procedure. What was the challenge?

Regarding the request for legal representation, he did not want to say that there was no request for legal representation. Parliament was already in the process of engaging with the legal representation, so how was the matter not in front of the Committee. A Member should apply and then the Committee can decide that it was too difficult for that Member to do it on his or her own and then a decision was made to permit legal representation but already the legal representative had been recognised. The Committee had to apply its mind and as far as he was concerned it should be allowed because that would be procedurally correct, having engaged in correspondence with the legal representative.

Dr Ndlozi stated that he had not been in the meeting when the matter had begun because the secretariat had used his parliamentary email instead of the email address that he used and he had therefore not been informed of the meeting. He would have had a much stronger opinion in the beginning but the horse had bolted. One could not deny someone legal representation. Even lawyers had legal representation as one could be too emotional.

The Chairperson interjected that he had ruled on the issue. Dr Ndlozi should not discuss the legal representation.

Dr Ndlozi asked how he could have ruled if the Committee had not debated. What did it mean to rule? How could the Chairperson say that there was no request for legal representation in front of the Committee when there was nothing in front of the Committee. People had written about the matter but the correspondence had not reached the Committee. How could the Committee be deciding on postponement but not on legal representation?  What was it that he was not getting?

The Chairperson stated that the schedule to the rule was clear that an application had to be formally brought to the Committee, providing reasons why the Members needed legal representation. The decision had to be made on the basis of complexity of the matter. There was no such application.
 
He reminded Members that Parliament had appointed Adv Mayosi as the initiator and the Committee was relying on her to bring the charges and to “prosecute” on the charges. She was saying to the Committee that there was no formal application before the Committee and that was the point that he had ruled on. What was before the Committee was information from Adv Mayosi that there was a request for a postponement until the following day.

The Chairperson agreed that the Committee should be privy to the correspondence but there was nothing wrong in the Acting Secretary responding, but she could not take a decision for the Committee. He had had sight of the correspondence and he had spoken to the Committee regarding the postponement and there had been no objection. However, the correspondence should be with the Members.

He requested the secretariat to send the correspondence to all Members. However, there was no request for representation before the Committee.

Dr Ndlozi agreed that the Committee should adjourn and meet the following day. However, he cautioned that if they received the correspondence and there was a request to make a formal application for legal representation, the Committee should have considered it. He stated that a formal application could be made in the presence of the Committee.

The Chairperson stated that the matter regarding representation was not under discussion. Dr Ndlozi had to move on to his next point.

Dr Ndlozi had nothing further to say.

Ms B Maluleke (ANC) agreed with the proposal to adjourn until the following day. If a request came the following day, the Committee could look at it then.

The Chairperson welcomed the Deputy Chief Whip who had indicated that she would be arriving late.

Concluding remarks
The Chairperson stated that the Committee would adjourn and continue the following day. Members would receive the correspondence. The Committee was adjourning for the sake of fairness but it had not yet approved legal representation and the Members charged should have been in attendance that day.

If an application for legal representation came the following day, the Committee would deal with it then.

The Committee had decided on an initiator and the Committee had delegated the Speaker to appoint an initiator and Adv Mayosi spoke on behalf of Committee. She should be given the respect she deserved.

The meeting was adjourned.
​