Report of the Opposition in Parliament

on

POWERS AND PRIVILEGES COMMITTEE OF THE NATIONAL ASSEMBLY

18 November 2014

Signatory Parties to this Report

Democratic Alliance

African Christian Democratic Party

Economic Freedom Fighters

United Democratic Movement

Inkatha Freedom Party

INTRODUCTION

It has to be noted that this was the first time since 1994 that the Powers and Privileges Committee of the National Assembly had to deal with a matter referred to it. It was also the first time that the Schedule in the Rules had to be applied. This thus means that whatever the Committee did would be setting the precedent for other matters to be referred to the Committee.

As opposition parties we approached the matter referred to the Committee for enquiry with great circumspection, with the primary aim of giving substance to the dignity of Parliament as an institution and to continually adhere to the principles of natural justice.

We throughout the process endeavoured to protect principles such as the right to a reasonable and procedurally fair hearing. This includes aspects such as the right to be heard, to have a fair hearing, and to be heard by a panel that is unbiased and not partisan.

Our approach was thus not linked to who and which party members appeared before the Committee, but rather to ensure that there was procedural fairness and that the process would be reasonable.

The following are matters that we found to be problematic and which in our view impeded on the procedural fairness of the process.

PROCESS AND PROCEDURE

The following matters are of concern and are considered to constitute serious flaws in the process and procedures followed:

1. REPRESENTATION BY HON. J MALEMA

On 7 October 2014 Hon. Malema submitted a representation to the Committee. The document contained 89 points. Some of the points could be deemed to be matters in limine and should thus be disposed of before the hearing could proceed. However, the Committee by means of a majority position decided that the submission would only be dealt with at the end of the hearing. Opposition party members of the Committee raised our concerns regarding this in a letter to the Chairperson on 9 October.

However, the hearings proceeded with the Initiator leading evidence. Consequently, the representation of Hon. Malema as presented to the Committee on 7 October 2014 was only dealt with at the end of all the proceedings, i.e. after the finalisation of the findings and penalties proposed by the Committee. This made it impossible to deal with matters contained in the submission that could have had an effect on the eventual findings.

The following matters raised in the document presented by Hon. Malema are considered to be of crucial importance and should have been addressed by the Committee:

1.1 THE PRINCIPLES OF NATURAL JUSTICE

As also stipulated in the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 in sec 12(3)(a):

"the proceedings should be reasonable and administratively fair".

This implies that the accused person should have an expectancy of an unbiased and impartial hearing. The constitution of the Committee is based on political party representation and in this instance the members of the majority party make up the majority of members of the Committee and the accused are members of an opposition party. This in itself raises the question of whether the process can indeed be unbiased and administratively fair.

The members of the opposition parties requested a formal legal opinion regarding the submission made by Hon. Malema, but this was not acceded to and the Committee was only provided with "notes" by the Parliamentary legal advisors. The notes stated that the submission should be considered when the Committee compiles its report and need not be considered before the hearing proceeds. They were also of the opinion that the matter of potential bias was not an issue of concern.

It also became clear during the presenting of evidence that the Parliamentary Legal advisors were also involved in the drafting of the charges. They also provided legal advice to the Committee. This is quite problematic as the same team "acted" for the "prosecution" and the "judges". This once again impacts on the principle of natural justice.

1.2 WHY ARE ONLY 20 OF THE 25 EFF MEMBERS CHARGED?

This is a matter that was raised in the submission of Hon. Malema, but was never addressed by the Committee. When members of the opposition raised this as an issue of concern, we were told that it was outside of the scope and brief of the letter sent to the Committee by the Speaker. No clarity was given as to how and why only 20 EFF members were charged.

THE ACTIONS OF MEMBERS OF THE ANC ON 6 OCTOBER 2014

From the evidence lead it became clear that members of the ANC were gathering outside of the doors of the National Assembly and threatened to enter the Chamber; three members entered. The Sergeant-at-Arms testified to this confirming that the ANC members who did enter threatened that they "will get them". This evidence was totally ignored and discarded by the ANC members of the Committee and the Initiator.

Of greater concern however, is that two of the members who entered the Chamber and threatened to "get them" i.e. the EFF, are members of the Committee. Clearly this points to potential bias.

THE CALLING OF WITNESSES

The Initiator planned on only calling one witness i.e. Mr Masibulele Xaso (Secretary to the National Assembly). It was only on the insistence of the following members that other witnesses were proposed and called to testify: Dr A Lotriet (DA), Mr S Esau (DA), Mr MA Mncwango (IFP), Mr ML Filtane (UDM), Mr A Molhoko (EFF).

The following witnesses were proposed by the above members of the Committee: Speaker of the National Assembly Hon. M Mbete, Ministers S Cwele and MD Mahlobo, Hon. DE Dlakude, Deputy Chief Whip of the Majority Party, Hon. J Steenhuisen, Chief Whip of the Official Opposition, Ms R Mohlomi, Sergeant-at-Arms and a representative of the Information Communication Technology section in Parliament. Of these proposed witnesses all were called with the exception of the Speaker, Ms B Mbete. This proposal was rejected by the members of the majority party from the onset.

The fact that the Speaker was not called as a witness caused serious lacunae in the evidence presented.

The Speaker was central to the whole process and the events that transpired on 21 August 2014. The fact that she did not testify, made it impossible to determine why she acted/reacted in the way she did. We could not ascertain what her perception of ‘grave disorder' and ‘grossly disorderly' is. We could not enquire from her in terms of what factors she exercises her discretion to recognise a member to speak. 

In addition to the fact that important contextual information in the evidence is missing as a result of the Speaker not testifying, the fact that the members of the majority party in the committee rejected the call for the Speaker to testify from the onset, infringed upon the Speaker's right to testify. She was thus precluded from giving her side of the events. This became increasingly important in the light of the Speaker's own admission to the media that on the day "she lost it".

COMMITTEE'S FINDINGS AND PROPOSED PENALTIES

The charges against the EFF members ranged from one to seven. Some of the charges in fact related to one action, but it was then divided into four different charges. The charges were then dealt with in terms of each individual and each charge individually.

Members of the opposition parties indicated whether they thought an accused member guilty or not and there was no indication of a pre-determined decision as to how the opposition members would find. This was evidenced by the fact that even members of the same party did not necessarily find the same in all instances. However, this was not the case with the members of the majority party. There was no deviation from one another, and in fact some members even made reference to the "shining" evidence presented by the Initiator.

Although the accused members were dealt with individually and according to the separate charges, when it was time to discuss penalties, the charges were lumped together for each member and members were also grouped into three groups. This was highly problematic as each individual acted individually in a manner specific to them.

The second problem in the regard was that the members of the Majority party did not take any mitigating factors into consideration. The context of the events, the contributing factors, the actions of the different role players were totally ignored. The findings and penalties proposed were indeed done on a basis void of any context.

There was no discussion to even consider a lighter penalty, given the distinct impression that it was a foregone conclusion.

CONCLUSION AND RECOMMENDATIONS

1. From the problems experienced during the course of the hearings as well as the fact that this was the first hearing conducted by the Powers and Privileges Committee, it became clear that it is necessary to effect certain changes to the Rules and to amend the Act.

2. The composition of the committee is problematic. It has to be considered whether the current composition based on proportional representation ensures a fair and unbiased process.

3. The Act has to be amended to be more specific in terms of procedures and or requirements to ensure a procedurally fair enquiry process.

4. Both the Rules and the Act does not provide for an appeal. This should be amended.

Issued by the DA, November 18 2014

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