2 December 2014
EFF Founding Affidavit in case against Speaker
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
In the matter between:
THE ECONOMIC FREEDOM FIGHTERS AND OTHERS
THE SPEAKER OF THE NATIONAL ASSEMBLY OF SOUTH AFRICA AND OTHERS
I, the undersigned
JULIUS SELLO MALEMA
Do hereby make oath and state that:
- I am an adult male and the leader of the Economic Freedom Fighters (“the EFF”). I also bring this application in my personal capacity as I am one of the persons affected by the decision and/or decisions sought to be challenged herein. I am duly authorised to institute the application on behalf of the EFF and to sign this affidavit on its behalf.
- The facts contained herein are, to the best of my knowledge and belief, both true and correct and, unless the contrary appears from the context, are within my personal knowledge.
- Any submissions of law are made on the advice of the legal representatives of the applicants, which advice is accepted as being correct.
- The first applicant is the Economic Freedom Fighters (“the EFF”). The EFF is a political party registered with the Independent Electoral Commission. It is the third largest political party represented in the National Assembly of the Republic of South Africa. In the last national general elections held in April 2014, the EFF secured 6.35% of the national vote, and acquired 25 seats in the National Assembly.
- In terms of its constitution, the EFF can sue and be sued in its own name. The principal aim of the EFF is to advocate the interest of all South Africans in order to achieve economic emancipation in our lifetime.
- The EFF is anti-capitalist, anti-racist, anti-sexist and anti-imperialist in its world outlook and is driven by sound democratic socialist values where the leadership is accountable to the membership which elected it. Its ultimate goals are set out as seven basic foundational principles.
- The seventh of these principles reads as follows:
“Open, accountable government and society without fear of intimidation by the State defence, police and other agencies”.
- The address of the EFF in Parliament is Office M, 441, Marks Building, 990 Plein Street, Cape Town, 8000. However, service should be effected at the address of the attorneys of record of the EFF at [address]. A copy of the Constitution of the EFF is attached hereto marked “FA1”.
- I am the second applicant in this application. I am a Member of Parliament and serve as the representative of the EFF in the National Assembly.
- The third to twenty first applicants are also members of Parliament and representatives of the EFF in the National Assembly. Their address for the purposes of this application is the same as that of the EFF. In order to preserve space, I am advised that it is not necessary to set out their names and full details. They have already been provided in an annexure to the founding affidavit. Confirmatory affidavits of all the individual applicants shall be attached to this founding affidavit before the hearing of this application.
- The first respondent is the Speaker of the National Assembly.
- She is cited as nominal respondent on behalf of the National Assembly in terms of s 23 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 read with s 2 of the State Liability Act 20 of 1957. The address of the Speaker is 90 Plein Street, Cape Town, Marks Building. The Speaker is cited herein as the Leader and Chairperson of the National Assembly.
- A key function of the Speaker is to ensure the dignity of the National Assembly. The exercise of this function requires the Speaker to act impartially towards all parties represented in Parliament. As the facts narrated here bear out, the Speaker has failed to act impartially. As a result, the EFF has been compelled, reluctantly, to ask for an order asking for a declaration that Ms Mbete, cited herein as the second respondent, is not suitable to hold the office of Speaker of the National Assembly.
- The second respondent is Ms Baleka Mbete. Ms Mbete occupies the position of Speaker of the National Assembly, as cited and described above. I have been advised that since this application also focuses on the competence and ability of Ms Mbete, in her personal and political capacity to occupy the office of the Speaker of the National Assembly, it is also necessary to cite her in her personal capacity. The address of Ms Mbete, for the purposes of this application is the same as above.
- The third respondent is the Chairperson of the Powers and Privileges Committee. It is a standing committee of the National Assembly. The committee took the decision to suspend the members of the EFF which is the subject matter of this application. The committee will be served at the address of the first respondent. It will be referred to in this application as the committee.
- The fourth respondent is Mr Jacob Gedleyihlekisa Zuma. Mr Zuma is the President of the Republic of South Africa. He is cited herein in both his personal and official capacities as the President of South Africa. Mr Zuma has a direct and material interest in the outcome sought by the applicants in relation to Part B of the relief sought. No relief is sought against Mr Zuma in relation to Part A of the application, unless he opposes the relief sought, in which event a costs order shall be sought against him. Service to Mr Zuma shall be effected at the address of the State Attorney, atFloor 4 Liberty Life Centre, 22 Long St, Central, Cape Town.
- The relief sought by the applicants is twofold.
- First, the applicants seek an order to come into effect immediately interdicting the implementation and enforcement of the decision taken by the National Assembly on 27 November 2014 to suspend their membership of the National Assembly. The relief in Part A will operate on an interim basis, until Part B has been finally determined.
- Second, in Part B, final relief is sought. The bases for the final relief are three-fold:
- The first is a challenge directed at the entire disciplinary proceedings against the applicants. The submission of the applicants is that the whole disciplinary proceedings should be nullified on the grounds of non-compliance with the requirements of procedural fairness and unreasonableness. It is submitted that, in any event, there is no factual foundation for the charges against the applicants.
- The second aspect is that ultimately the charges against the applicants emanate from the demand of the EFF that the National Assembly should play its proper constitutional function of holding the National Executive to account. Parliament should not be reduced to a mere a lapdog of the ruling party. I contend that the applicants are being victimised for carrying out their lawful constitutional duties, and deny that members of the EFF have committed any misconduct. Specifically, the EFF is being victimised for making a legitimate demand in calling upon the National Assembly to require the President to explain the steps that he intends taking to carry out the recommendations of the Public Protector in the report aforementioned.
- The third ground is that the proceedings of the Powers and Privileges Committee, its report and the decision of the National Assembly to adopt the report violate the constitutionally protected rights of the members of the EFF who serve in Parliament on its behalf. Furthermore, the decision is a violation of the rights of the voters and supporters of the EFF, which are protected by section 19 of the Constitution. The voters, who have elected the EFF to serve in Parliament, are entitled to be represented by the EFF until the end of the term. They cannot be deprived of such rights and entitlements by the unlawful conduct of the National Assembly.
- I shall begin by setting out the relevant legal provisions and a factual narrative of the relevant issues which frame and inform the dispute. This will place the issues in contention in their proper perspective.
PURPOSE OF THE APPLICATION
LEGAL AND FACTUAL BACKGROUND
Accountability of the President to Parliament
- As noted above, a basic foundational principle of the EFF is open and accountable government in which people live without the fear of being victimised by the National Defence Force, the police and other security agencies.
- The idea of accountability constituted a cornerstone of the campaign of the EFF in the national elections held in May 2014. EFF supporters – who number in excess of 1,2 million voters – require us to pursue executive accountability in Parliament. Any failure in this regard is a betrayal of the mandate given to the EFF by the voters.
- Accountability is also foundational to the South African Constitution. South Africa is founded upon the foundational values listed in section 1 of the Constitution. These include human dignity, the achievement of human rights and freedoms, the supremacy of the Constitution and the rule of law, and a multi-party system of government to ensure accountability, responsiveness and openness.
- The office of the President is established in terms of section 83 of the Constitution. The President is the head of the state and the head of the national executive. He is obliged to uphold, defend and respect the Constitution as the supreme law of the Republic. The President is also required to promote the unity of the nation and that which will advance the Republic.
- In terms of s 89 of the Constitution, the President can be removed from office by the National Assembly. Section 89 provides that the National Assembly may, with a supporting vote of at least two thirds of its members, remove a President from office on the grounds of a serious violation of the Constitution or the law, or serious misconduct or inability to perform the functions of office.
- The National Assembly is the key democratic institution charged with the responsibility to hold the National Executive accountable. Section 55 of the Constitution explains the oversight powers of the National Assembly. In terms of s 55(2), the National Assembly must provide mechanisms: “to ensure that all executive organs of state in the national sphere of government are accountable to Parliament.”
- Furthermore, the National Assembly is required to maintain oversight of the exercise of national executive authority, including the implementation of legislation and oversight over any organ of state.
- The National Assembly has passed rules to enable it to perform its function of holding the executive accountable. A copy of the rules of the National Assembly is attached marked “FA2”. Rule 111(1) is instructive. It states that questions to the President must be scheduled for a question day at last once per term in accordance with the annual Parliamentary programme and in relation to matters of national and international importance.
- It is thus mandatory for the President to attend Parliament, at least once per term. The reason for the President’s attendance in Parliament is to respond to questions asked by members of Parliament, which include members of the opposition political parties such as the EFF. The President cannot decide on his own whether or not he wants to come to Parliament. Also, the President cannot decide which questions he will answer. He is required by law to attend Parliament and answer the questions put to him when he is in Parliament. Further, the answers given by the President when he has been called to Parliament to account must be meaningful. The Speaker, as the leader of the National Assembly, is constitutionally obliged to ensure that the answers given by the President are meaningful. If the President fails to provide meaningful answers in Parliament to the questions put to him, the fundamental purpose of calling the President to account in the National Assembly is defeated.
- In order to enable members of Parliament to play their oversight function over the Executive, the Constitution guarantees an unqualified right to freedom of speech in Parliament. Section 58(1)(a) of the Constitution guarantees the freedom of speech of members in the House and any of its committees. Section 58(1)(b) further provides that members may not be held civilly or criminally liable for exercising their freedom of speech in the House.
The Public Protector’s Report
- The issues in this application emanate from the failure of the Speaker to ensure that Mr Zuma is held accountable in relation to the personal benefits which he derived from the resources of the State, as found by the Public Protector. For this reason, it is necessary to make reference to the constitutional foundations and powers of the Public Protector.
- Section 181 of the Constitution provides for the establishment of, amongst others, the Public Protector. In section 181(2) it is clear that the Chapter 9 institutions are independent and subject only to the Constitution and the law. These institutions must be impartial and exercise their powers and perform their functions without fear, favour or prejudice. In terms of section 181(3) it is provided that other organs of state, through legislative and other measures “must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.”
- No person or organ of state may interfere with the functioning of any Chapter 9 institution, including the Public Protector.
- In pursuit of her mandate under the Constitution, the Public Protector conducted an investigation, resulting in the compilation and publication of the report, which is entitled “Secure in Comfort: Report on an investigation into allegations of impropriety and unethical conduct relating to the installation and implementation of security measures by the Department of Public Works at and in respect of the private residence of President Zuma at Nkandla in the Kwa-Zulu Natal province.” Because the report is lengthy, I have not attached it here. I will however, make reference to the relevant passages which place the charges against the members of the EFF in their proper context. These passages are attached hereto marked “FA3”. A copy of the report shall be made available at the hearing of this application should the need arise.
- At page 427 of the report, the following finding was made against the President:
“ It is my considered view that the President, as the head of South Africa Incorporated was wearing two hats, that of the ultimate guardian of the resources of the people of South Africa and that of being a beneficiary of public privileges of some of the guardians of public power and state resources, but failed to discharge his responsibilities in terms of the latter. I believe the President should have ideally asked questions regarding the scale, cost and affordability of the Nkandla project. He may have also benchmarked with some of his colleagues. He may also have asked what his idea for some of these measures and viewed them with circumspection given Mr Makhanya’s security background and the potential of misguided belief that his main role was to please the President as his client and benefactor.
 It is also not unreasonable that once the news broke in December 2009 of alleged exorbitant amounts, at the time R65 million on requested security installations at his private residence, the dictates of sections 96 and 237 of the Constitution and the executive ethics code required of President Zuma to take reasonable steps to order an immediate enquiry into the situation and immediate correction of any irregularities and excesses.
 His failure to act in protection of state resources, constitute a violation of paragraph 2 of the executive ethics code and accordingly amounts to conduct that is inconsistent with his office as a member of cabinet, as contemplated by section 96 of the Constitution.” (Emphasis added)
- Clearly, the findings made by the Public Protector are gravely serious. Section 96(2)(b) of the Constitution states that a member of Cabinet, including the President, may not “act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests.”
- I submit that this section imposes a high standard of conduct on the President. The President is required by law to avoid putting himself in a position where the risk of a conflict of interest exists or arises. Put differently, it is not necessary to establish an actual conflict of interest on the part of the President. It is enough that the President has put himself in a situation where there is a “risk of a conflict” of interest.
- The Public Protector has found, in clear and explicit terms, that the President has acted in violation of section 96 of the Constitution. As described in the report of the Public Protector, the conduct of the President is “inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the Constitution.”
- Furthermore, the Public Protector has made a clear finding that the President has acted in violation of paragraph 2 of the Executive Ethics code. I attach a copy of the code marked “FA4”. Paragraph 2 of the code provides for “General Standards” which must be observed by members of the executive. These are:
“2. General Standards
2.1 Members of the Executive must to the satisfaction of the President or the Premier, as the case may be
(a) perform their duties and exercise their powers diligently and honestly;
(b) fulfil all the obligations imposed upon them by the Constitution and law; and
(c) act in good faith and in the best interest of good governance; and
(d) act in all respects in a manner that is consistent with the integrity of their office or the government.”
- The code also prohibits members of the executive acting in certain ways. These are spelt out in clause 2.3 of the Code as follows:
“2.3 Members of the Executive may not
(a) wilfully mislead the legislature to which they are accountable;
(b) wilfully mislead the President or Premier, as the case may be;
(c) act in a way that is inconsistent with their position;
(d) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person;
(e) use information received in confidence in the course of their duties otherwise than in connection with the discharge of their duties;
(f) expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests;
(g) receive remuneration for any work or service other than for the performance of their functions as members of the Executive or
(h) make improper use of any allowance or payment properly made to them, or disregard the administrative rules which apply to such allowance or payments.” (Emphasis added)
- As the Public Protector has noted, the President is the guardian of national assets and resources. As a guardian of these resources, he is required to use them for the benefit of the public at large, and not for his personal benefit and advancement.
- Having made these findings, the Public Protector also considered the question whether or not the President is liable for some of the costs incurred in the construction of the property which belonged to him. She concluded as follows, at page 436 of the report:
“ It is my considered view that as the President tacitly accepted the implementation of all measures at his residence and has unduly benefit from the enormous capital investment from the non-security installations at his private residence, the reasonable part of the expenditure towards the installations that were not identified as security measures in the list compiled as security experts in pursuit of the security evaluation, should be borne by him and his family.
 It is also my considered view that the amount in question should be based on the costs of the installation of some or all the items that can’t be conscionably accepted as security measures. These include the visitor’s centre, cattle kraal and chicken run, swimming pool and amphitheatre. The President and his legal advisors did not dispute this in their response to the provisional report. The President did not dispute during the investigation that he told me on 11 August 2013 that he requested the building of a larger kraal and that he was willing to reimburse the state for the cost thereof.” (Emphasis added)
- In relation to remedial action, the Public Protector specifically directed the President to take the following steps:
“ Take steps, with the assistance of the National Treasury and the SAPS to determine the reasonable cost of the measures implemented by the DPW at his private residence that do not relate to security, and which include visitor’s centre, the amphitheatre, the cattle kraal and chicken run and the swimming pool.
 Pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document.
 Reprimand the ministers involved for the appalling manner in which the Nkandla project was handled and state funds were abused.
 Report to the National Assembly on his comments and actions on this report within 14 days.” (Emphasis added)
- Clearly, pursuant to such explicit findings, what is expected is for the President, first and foremost, to determine the reasonable cost of the improvements in his home which are not security related. These improvements have already been spelt out by the Public Protector in her Report: They include the amphitheatre, the cattle kraal and chicken run and the swimming pool. Once the cost of these items has been determined, with the assistance of the National Treasury and the South African Police Service, the Public Protector contemplates that the President must pay a reasonable percentage of those costs to the National Treasury. Furthermore, the President is to reprimand ministers who were involved in the Nkandla project for “the appalling manner” in which the project was handled. Finally, the President is required to report to the National Assembly on his comments and actions on the Report by the Public Protector within 14 days.
- None of these steps have been taken:
- The President failed to report on the matter to the National Assembly within 14 days of the Report being made available.
- The cost of the non-security related upgrades has not been determined.
- The President has not paid a reasonable percentage of these costs to the National Treasury.
- The President has not reprimanded the ministers involved for the appalling manner in which they handled the Nkandla project.
- The President has not taken, or committed to taking any other actions to respond to the findings of the Public Protector.
- In these respects, the President has violated the Constitution. He has failed to protect and promote the independence of the Public Protector, a vital constitutional body. His conduct in fact undermines the independence and the effectiveness of the Public Protector. As head of the executive, the President must, through appropriate measures, promote, protect and support the work of the office of the Public Protector by giving effect to its recommendations. Where the President does not agree with the recommendations of the Public Protector he is under a legal duty to set aside such recommendations through judicial proceedings. What cannot be countenanced is for the President to simply ignore the recommendations of the Public Protector.
- Similarly, the National Assembly has a duty to protect the office of the Public Protector. In addition, as the provisions of section 55 of the Constitution make clear, the National Assembly has a duty to ensure that the national executive accounts in relation to its discharge of executive obligations.
- It was with this background in mind that the EFF took the matter up and sought to ensure that the President is held to the recommendations contained in the report of the Public Protector. This was so particularly because the EFF’s view, which it continues to hold, is that the National Assembly, under the leadership of the current Speaker, is not capable of holding the President accountable. The above provides a context in which the entire disciplinary proceedings against members of the EFF must be viewed. I will now proceed to deal with the issue of the allegations of misconduct against members of the EFF.
- Pursuant to the provisions of Rule 111 of the rules of the National Assembly, the President was scheduled to answer questions at the National Assembly on 21 August 2014. We, as members of parliament representing the EFF, decided to ask questions related to his non-compliance with the findings and recommendations of the Public Protector.
- The events of that day are accurately captured in the Hansard for the National Assembly of 21 August 2014. A copy of the Hansard (unrevised edition) is attached hereto marked “FA5”. It records the following sequence of events.
- The first question directed to the President related to issues of economic development. The President replied to this question. Subsequent to the answer, follow up questions were asked by members of the ANC and some opposition parties. These, too were answered by the President.
- The second question related to the issue of the appointment of the National Director of Public Prosecutions. To the President’s answer, a follow up question was raised by the leader of the Democratic Alliance. He enquired from the President whether it would be appropriate for him to play a role in the appointment of the National Director of Public Prosecutions in view of the conflict of interest arising from the criminal charges which were withdrawn against the President. To that question, the President responded that there were no criminal charges pending against him and consequently no issue of a conflict of interest could arise. Several other political parties raised follow up questions on the issue of the appointment of the National Director of Public Prosecutions.
- After question 2 had been dealt with, the Speaker announced her intention to proceed to question 3. At this point I informed the Speaker that I had pressed the button on the microphone, indicating my intention to ask a follow up question. The Hansard transcript records my question thus:
The events of 21 August 2014
“Speaker, the Commander in Chief of the EFF pressed that facility there. So, we are waiting to ask our follow up question. May we please be allowed to do so?”
- In response to this, the Speaker replied:
“Honourable Member, if you heard me at the start, we are limited to four follow up questions, after we had taken the member who asked the original question as the first person raising a supplementary question. We have now taken three more up to Honourable Mncwango. So, we have exhausted the four supplementary questions …”.
- In addition, the Speaker stated that since the EFF had been listed as numbers 6 and 7 and consequently no supplementary questions could be asked in relation to the issue of the appointment of the National Director of Public Prosecutions.
- I pointed out to the Speaker that it was not clear how it had been decided that our questions would be placed at number 6, when we had signalled our intention to speak early on. The Speaker did not give an explanation in this regard. She simply proceeded to the following question. At this point, a member of the ANC, Ms Z S Dlamini-Dubazana interjected. She was permitted to address the Speaker, notwithstanding her unprocedural interjection. In her address she quoted the provisions of Rule 72 to the effect that members should speak only when called upon to do so by the presiding officer. The Speaker thanked her for raising the point and proceeded to the third question, which related to the issue of the security upgrades at the President’s house in Nkandla.
- It is necessary to record the President’s answer to the question. The Hansard transcript reflects the following:
The President of the Republic: Honourable Speaker, as the honourable members are aware, my response to all the reports on the security upgrades at my private residence was submitted to the Speaker on Thursday last week, 14 August 2014. I thank you.”
- To this, I asked the following question:
“Mr President, we are asking this question precisely because you have not provided the answer. Firstly, you failed to meet the fourteen days of the Public Protector, and, secondly, when you responded, you were telling us that the Minister of Police must still decide who must pay. In our view, the report of the Public Protector supersedes any other form of report which you might be expecting somewhere else. So the question we are asking today – and we are not going to leave here before we get an answer … is: when are you paying the money, because the Public Protector has instructed you that you must pay the money, and we want the date of when you are paying the money?”
- A point of order was then raised by a member of the ANC. This point of order was without merit and simply an attempt to divert focus from the question which I was raising. I responded to the point of order by stating that the President should not hide behind points of order and should answer the questions that had been asked. The Speaker overruled me and allowed the member of the ANC to address a point of order. The ANC member stated that the issue that I had raised would be dealt with by the ad hoc committee and there would be no reason to pre-empt the work of that committee.
- Another point of order was raised by a member of the EFF. The Speaker gave a ruling to the following effect:
“Honourable Members, this is an opportunity for the house to address questions to the President. I now give the President the opportunity to respond to the supplementary question of the Honourable Malema.”
- The President thereafter proceeded in an attempt to answer my question:
“Thank you, Honourable Speaker. As I said when answering the question, I have responded to the reports about Nkandla. The reports about Nkandla are not only from the Public Protector. There is the SIU report. There was a report before the Task Committee. I have responded to all the reports, as I am supposed to. I hope you are not going to make a debate on this issue, because I have responded appropriately. The issue, for example, that the Honourable Member is referring to is a matter that arises in the recommendations of the Public Protector. And I’m saying the people who did the upgrades at Nkandla … they are the ones who always determine who pays when to pay. It is the government that decides. And the matter is referred to people who are legally authorised to make that determination. Thank you Honourable Speaker”. (Emphasis added)
- It is clear that the President did not answer the question that I raised. It is also clear that, from his response, there was non-compliance with the report of the Public Protector. The President did not address the issue of when (or whether) he will repay the money as directed by the Public Protector. His view – which manifests a flawed understanding of the constitutional role of the Public Protector – is that the officials in government must decide whether he should pay and when he should pay. This view is wrong in law and provides no answer to the question of when he will pay the money as directed by the Public Protector.
- Once the Public Protector has made a determination on an issue involving a person who is the subject of its investigation, that determination is binding. Only a court of law has the authority to set it aside. It is wrong to ignore the binding determination of the Public Protector.
- It is also wrong for the President to adopt the view that officials in government must decide who must pay and when to pay. It would be intolerable for the Ministers in the Cabinet of the President and for officials in the employ of the State to have to make determinations as to the liability of the President. Those determinations have been made.
- The Public Protector’s pronouncement is that the President must repay a portion of the moneys used in the building of his house. The role of the National Treasury and the Police is to decide how much must be paid by the President. The Public Protector’s Report provides clear guidelines as to how that determination is to be made. What must be decided is how much the following items cost: the amphitheatre, the cattle kraal, the chicken run and the swimming pool. The decision on the costs which must be repaid by the President depends simply on the calculation of the cost of these items. This is not a difficult exercise. No one is now required to revisit the investigation and findings of the Public Protector. If there is a dispute about the propriety of the findings, that dispute must be resolved in a court of law.
- It was therefore incumbent on the Speaker to require the President to explain when he intended complying with the clear findings of the Public Protector since I had raised the matter pertinently. The Speaker failed to request the President to answer my question directly. In asking the question which I did, I was not only representing the view of the EFF; I was also raising an important issue in the public interest and in relation to the mandate of an important institution of our constitutional order, namely, the role of the Public Protector. If the reports of the Public Protector are ignored, as seems to have happened in this instance, without any rational grounds and without judicial sanction, the essence of a vital constitutional organ will be eroded. The essence of my question was to request the President to provide an explanation of the steps that he intended taking in order to give effect to the clear and unambiguous findings and recommendations of the Public Protector. This question also spoke to the issue of signal importance about the President’s respect for constitutional institutions.
- After failing to ask the President to answer my question, the Speaker purported to recognise Mr B Holomisa to address the House. Prior to Mr Holomisa rising to the podium to speak, another member of the ANC interjected, demanding to address the Speaker. She, like the other members of the ANC before he, was allowed to do so. The interjection by the ANC member was without merit. As it turned out the reason for the interjection was for the ANC members to announce that “people at the podium should not be interrupted.”
- A member of the EFF, Mr Shivambu, also raised a point of order. Mr Shivambu stated that the ANC member should not interrupt the proceedings and allow the members to ask questions of the President. At this point the Speaker signalled to the President that he had the floor if he had anything to add to his reply. The President refused to give any meaningful answers to the question. Instead he protested “I have answered. I have answered the question”. The Speaker did not take the matter further with the President. She moved on to purportedly recognise Mr Holomisa.
- Mr Matiase of the EFF raised a point of order. The point of order was that the President had not given the answers. He demanded answers to the questions. This point of order was overruled and an instruction was given to Mr Matiase to take his seat.
- Mr Shivambu thereafter rose to address the Speaker. Before he could address the Speaker he was instructed to take his seat without the Speaker enquiring about the point of order which he wanted to raise. Nevertheless, Mr Shivambu raised the question about the payment of the money which is similar to the issue that I raised. The Speaker responded by stating that Mr Shivambu had not been recognised to speak. Mr Shivambu repeated that the question of when the President is paying the money had not been answered. The Speaker responded by threatening to throw Mr Shivambu out of the House if “you don’t listen”.
- A further member of the EFF, Ms Litchfield-Tshabalala, rose to address the Speaker. Before she could speak she was told by the Speaker to “please take her seat.” In protest she stated that the questions had not been answered. The Speaker responded by a further instruction to “take your seat. I am presiding”. Ms Litchfield-Tshabalala said “We want the money”. The Speaker again instructed Ms Litchfield-Tshabalala to take her seat and proceeded purportedly to recognise Mr Holomisa. It was clear that the recognition of Mr Holomisa was being used to silence the EFF and to allow the President to evade the questions.
- Another member of the EFF, Mr G A Gardee, also rose to address the Speaker. The Speaker again refused to listen and threatened to request the Sergeant-at-Arms to take “out members who are not serious about this sitting”.
- Mr Ndlozi, then, raised a point of order. The Speaker instructed Mr Ndlozi to take his seat. Mr Ndlozi responded by asking to be recognised on a point of order.
- The Speaker refused to recognise Mr Ndlozi but instead instructed the Sergeant-at-Arms to “please assist me with relieving the members in this House, who are not serious about this sitting, to take their leave”. The Speaker thereafter called security and suspended the business of the House.
- After the business of the House had been suspended, at approximately 15h00, members of the ANC who were sitting in the House began hurling insults at members of the EFF. The EFF members also responded to the provocation by the ANC. A stand-off occurred and at this point some members of the EFF began chanting and banging the tables, demanding that the President must pay back the money.
- It is important to emphasise that the banging of the tables, the chanting and the exhortation on the President to “pay back the money” happened after the Speaker had adjourned the House and suspended its business for the day. The suspension of the House and the business of the day did not result from the chanting and signing by members of the EFF demanding that the President must pay back from the money. It also happened in the context where there had been massive disruptions by members of the ANC with no reaction from the Speaker.
- Having suspended the House, the Speaker invited the Police to eject members of the EFF from the House. She can be heard, for instance, on video footage taken of the National Assembly, asking for police presence by stating: “akuphi amaphoyisa?” – where are the police?
- The police entered the National Assembly and attempted to remove members of the EFF from the House by force. We resisted forced removal, telling the police that there was no warrant for police presence in the House. The police ultimately relented and decided to leave us alone. Eventually, members of the EFF left the house.
- During a subsequent sitting of the House, on 22 August 2014, the Speaker announced that she was placing it on record that she had not called the police on 21 August 2014. But this was untrue because the police had come specifically on her instructions. I submit that the decision to invite the police into the House during a sitting of the House in order to resolve a dispute with members of the opposition was unconstitutional. Parliament is independent. The executive cannot use the police to influence and stifle the discussions in the House.
- I shall now deal with the decision taken to institute disciplinary proceedings against members of the EFF.
THE DECISION TO TAKE DISCIPLINARY PROCEEDINGS AGAINST MEMBERS OF THE EFF
- On 26 August 2014, the Speaker referred an allegation of “gross disorder” to the Powers and Privileges Committee (“the Committee”) for investigation. The allegation was against 20 members of the EFF (being the second to twenty first applicants). Members of other political parties were not cited, despite the fact that members of the ANC also behaved in a similar manner as members of the EFF at the sitting on 21 August 2014. They also spoke to the Speaker without being recognised; were responsible for causing disruption after the Speaker had adjourned the House; and also refused to leave the House after the House had been adjourned.
- As noted, the committee is a standing committee of Parliament. It is constituted by eleven members, six of whom are members of the ANC, two of the Democratic Alliance, one EFF member, one Inkatha Freedom Party member and one United Democratic Movement member.
- The committee, which is a standing committee of Parliament, was constituted on the basis of the proportional representation system. The result was that it is dominated by members of the ANC because of its majority position in Parliament. The Chairperson of the committee is a member of the ANC. The referral by the Speaker to the committee was done pursuant to the provisions of section 12(1) of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004.
- The Act does not necessarily require the Committee to sit as the disciplinary committee itself. It requires the committee to conduct an enquiry. It does not prescribe the nature of the enquiry. It makes it clear that the procedure to be followed in the enquiry must be reasonable and procedurally fair. I submit that the fact that there is no legislative obligation on the committee members to sit in the disciplinary hearing themselves and there is an obligation to act procedurally fairly and reasonably, it was incumbent upon the Committee to ensure that the enquiry was procedurally fair and the reasonable. The committee could have easily achieved this by referring the Speaker’s referral to an independent third party, such as a judge and enquiring on the facts as found by such third party. The EFF could not reasonably expect to, and did not, receive a fair hearing before the Committee dominated by the EFF’s political opponents and ANC representatives who are partisan to the President. The necessity of the appointment of an impartial outsider to conduct the disciplinary enquiry was particular imperative given that the core demand of the EFF was for the President to comply with the report of the Public Protector, which had become a highly emotive and politically-divisive issue.
- I submit that, by reason of the flawed composition of the Committee alone, the requirements of reasonableness and procedural fairness in any enquiry, as required by the Act were not met. There were reasonable options available to the Speaker and National Assembly: the Committee could have been reconstituted to ensure political balance and fairness; alternatively, the matter could have been chaired by an impartial outside person, such as a retired judge.
- Because the EFF‘s representative in the Committee, Mr Shivambu, was one of the accused, he did not sit on the Committee. Nor did the alternate member. This meant that no member of the EFF could be a member of the Committee.
- The Committee appears to have decided that the applicants should be charged with misconduct. The copies of the charge sheets are attached hereto marked “FA5”. The charges and the members charged were as follows:
- Mr Shivambu, Ramakatsa, Gardee, Ndlozi and Litchfield-Tshabalala were charged with the same charge namely:
“It is alleged that you are guilty of conduct constituting contempt of parliament in terms of section 13(a) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, No 4 of 2004 in that as a member of parliament and during “questions to the President” in the NA on 21 August 2014, you contravened section 7(a) of the Act by improperly interfering with or impeding the exercise or performance by the National Assembly (the House) of its authority or functions when you refused to obey the instructions of the Speaker that you take your seat. This conduct impeded the House from performing its function of exercising oversight over the executive by posing the question to the President and continuing with its business for the day.”
- Shivambu, Ramakatsa, Gardee, Ndlozi, Litchfield-Tshabalala and myself were charged with the same charge namely:
“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 “questions to the president” in the National Assembly on 21 August 2014, you wilfully failed and/or refused to obey Rule 51 and Rule 53.1, read together with the Rules of the National Assembly in that you refused to withdraw immediately from the Chamber for the remainder of the day’s sitting when you were ordered to do so by the Speaker.”
- Shivambu, Ramakatsa, Litchfield-Tshabalala were charged with the same charge namely:
“It is alleged that you are guilty of conduct constituting contempt of parliament in terms of section 13(a) of the Act in that as a member of parliament and during “questions to the President” in the National Assembly on 21 August 2014, you contravened section 7(b) of the Act by improperly interfering with or imputing the performance by a member of his or her functions as a member, in the following manner – When the Speaker requested Mr B H Holomisa (a member of parliament) to pose a question (i.e. a supplementary question) to the President, your conduct prevented Mr Holomisa, and other members of parliament who might have wished to ask the President further questions, from asking their questions thereby preventing them from performing one of their functions as a member of parliament (namely to hold the executive to account by asking the president questions).”
- Shivambu and Ramakatsa were charged with the same charge, namely:
“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 “questions to the President” in the National Assembly on 21 August 2014, you wilfully failed and/or refused to obey Rule 49 of the National Assembly by failing to resume your seat when the Speaker rose while you were speaking or offering to speak and thereby preventing the speaker from being heard without interruption.”
- Litchfield-Tshabalala, Shivambu, Ramakatsa, Gardee and myself were charged with the same charge, namely:
“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 “questions to the President” at the National Assembly on 21 August 2014, you wilfully failed and/or refused to obey Rule 72 of the Rules of the NA by speaking when you were not called upon to do so by the presiding officer (i.e. the Speaker) and/or without the Speaker recognising you.”
- Shivambu, Ramakatsa, Gardee, Ndlozi, Mngxitama Matiase, Litchfield-Tshabalala, Louw, Mashabela, Maxon, Moonsamy and myself were charged with the same charge namely:
“It is alleged that you are guilty of conduct constituting contempt of parliament in terms of section 13(a) of the Act in that as a member of parliament and during “questions to the President” at the National Assembly on 21 August 2014, you contravened section 7(e) of the Act by creating or taking part in a disturbance within the presence of parliament while the House was meeting by, inter alia, shouting and/or banging on the tables and/or refusing to obey the Speaker’s instructions and/or generally conducting yourself in a grossly disorderly manner thereby interfering with or disturbing the proceedings of the House forcing the Speaker to suspend the proceedings temporarily and ultimately to adjourn the sitting for the day.”
- All the applicants were charged with the same charge namely:
“It is alleged that you are guilty of conduct constituting contempt of parliament in terms of section 13(a) of the Act in that as a member of parliament and during “questions to the President” at the National Assembly on 21 August 2014 you contravened section 7(a) of the Act by improperly interfering with or impeding the exercise or performance of the National Assembly (“the House”) of its authority or functions by remaining in the chamber, after the sitting of the House had been temporarily been suspended by the Speaker so that you could leave, alternative, be removed from the chamber, in order for the House to continue with its business for that day. Your refusal to leave the chamber resulted in the House being adjourned for the day.”
- The enquiry was convened to proceed on 7 October 2014. We prepared a statement which I, as leader of the party, was mandated to present to the Committee on behalf of the EFF. A copy of the statement is attached hereto marked “FA6”. That statement made our objections to the process clear.
- First, we made it clear that we are not guilty of any charges of misconduct. In this regard, we set out fully the basis upon which we contended we were not guilty of the charge of misconduct. We made it clear that it was the Speaker who refused us an opportunity to get an answer from the President and continued to recognise other members of Parliament despite the fact that the President had failed to answer the question which had been posed by me.
- Second, we stated that the composition of the committee would be biased against us. In this regard, I made reference to a statement made and which had appeared in the press on 22 September 2013 where in the Secretary General of the ANC, Mr Gwede Mantashe pronounced the need for Parliament to act harshly towards the EFF.
- Third, compounding this reasonable perception of bias is the reality that the Speaker of Parliament holds a senior party position, as the National Chairperson of the ANC. In the statement we said of the committee:
“So you represent the complainant, you represent the subject of the complaint, President Zuma, you represent Gwede Mantashe, you are the witnesses, you are the complainant, you are the prosecutor and you are the judge and the jury. You see nothing wrong in your conflicting role.” (Emphasis added)
- Fourth, I made it clear that no member of the EFF had been called by name to leave the house and it would be inappropriate to find them guilty of such conduct when they had not been called by name.
- Fifth, I expressed the concern at the apparent selective prosecution. Twenty members of the EFF were charged, but 25 were attendance on the day.
- Finally, I made recommendations about how the committee should deal with the matter. One of the recommendations made was that the committee should caution the Speaker about the way in which she conducted herself on 21 August 2014.
- Subsequent to reading the statement, we decided not to participate in the disciplinary enquiry for the reasons fully set out in our statement. After we left the enquiry, it is apparent that it proceeded in our absence. I am not familiar with the process that was followed at the enquiry since I was not present and have not been provided with the official recordings of the proceedings. However, I have since been provided with the document numbering 58 pages which is headed: “Report of the powers and privileges committee of the National Assembly on the hearing into allegations of conduct, constituting contempt of parliament by members of the National Assembly.” A copy of that report is attached hereto marked “FA7”. I must emphasise that this report was not furnished to me through the official channels of the office of the Speaker. It was given to me by a member of one of the other opposition parties.
- The report has divided the EFF members into three categories: Category A, B and C. Category A are those members who were charged and found guilty of between four to seven charges; category B are those charged and found guilty of two charges; and category C are those charged and found guilty of one charge.
- The following members were in Category A: Malema, Shivambu, Ramakatsa, Gardee, Ndlozi and Litchfield –Tshabalala.
- The following members were in Category B: Mngxitama, Matiase, Maxon, Louw, Moonsamy and Mashabela.
- The following members were in Category C: Matshobeni, Sonti, Khawula, Nqweniso, Ntobongwana, Morapela, Joseph and Mbatha.
- All members were found guilty of the charges preferred against them. The committee recommended the following sanctions.
- Category A members (four to seven charges): suspension for 30 days without pay.
- Category B members (two charges): suspension for 14 days without pay.
- Category C members (one charge): fine equivalent of 14 days’ salary and allowances.
- For the current purposes, a distinction appears to be drawn between category B and category C members. Members in category B and category C will have their salaries docked for a period of 14 days, although the latter by way of fines and the former, as part of actual suspensions. It is also apparent that members in category C will not be suspended at all. And members in category B will be suspended for a period of 14 days.
- As I explain below, this report was adopted by the National Assembly on 27 November 2014.
- It is apparent from the report that the statement submitted by the EFF of 7 October 2014, was completely discarded by the Committee on the basis that the statement did not constitute evidence as it was not given under oath. No account seems to have been taken of the fact that one of the central attacks raised in the statement concerned the propriety of the entire proceedings in view of the reasonable perception that the Committee was biased. Nor was any account taken of the fact that some of the main points made in my presentation concerned the legality of the proceedings and did not have to be made under oath. Furthermore, it is most disconcerting that the Committee did not invite the EFF to take an oath before making the representations. I submit that if the Committee wished to exclude the representations on the ground that they were not taken under oath, it was duty bound to invite the EFF to take an oath before making its representation.
- In any event, the basis upon which it was claimed that the statement did not constitute evidence is questionable. It appears that the Committee took the view that the statement could only constitute evidence if it had been sworn under oath. But, there is no foundation for that view. There is no requirement that the parties before the Committee can only give evidence and/or statements under oath. Accordingly, I submit that the Committee should not have discarded my statement. It should have taken it into account in their deliberations, and its failure to do so was a material irregularity that tainted the entire process.
- Also apparent from the report is that several witnesses were called. However, the most vital witnesses were never called:
- President Zuma, the principal complainant was not called.
- The Speaker, as the person who apparently issued the instructions and is clearly a material witness, was also not called.
- Mr Holomisa, who is alleged to have been prevented from addressing the House on 21 August 2014 was also not called.
- There is reference to “footage” which apparently was relied upon. The nature and authenticity of that footage is not known to me. I invite the first respondent to make the entire footage available.
- The actual process followed by the Committee is not clear, but it is the subject of some dispute between the members of the Committee belonging to the opposition parties and those from the ANC. One of the key complaints from members of the opposition who were at the hearing is that the ANC members were not interested in any fact finding. They allege that the ANC railroaded the process, and that their intention was to punish the EFF, rather than establish the facts. These statements were made by members of the opposition when the matter was debated at the House on 27 November 2014.
- The findings of the Committee appear at paragraphs 14 from page 15 of the report. Although the actual findings are recorded, the factual foundation for those findings is not set out in the report. Nowhere is it recorded what facts were taken into account before the decisions as to the guilt of the applicants were made. There is no assessment of the probabilities. There is also no analysis of the evidence. The report simply records the evidence presented and then asserts conclusions. The basis for the assertion of those factual conclusions is not set out in the report. As a result, it is unclear if the Committee members applied themselves to the evidence before coming to the findings of guilt. I submit that a reasonable inference can be drawn that the Committee members did not apply themselves to the evidence before pronouncing the guilt of the applicants.
- It is also apparent that no account was taken at all, of the context in which the events of 21 August 2014 were unfolding. Particularly, the main issue pertained to the failure and/or refusal by the President to provide clear answers in relation to the Public Protector’s findings and recommendations. There is also no discussion at all about the propriety of the conduct of the Speaker in allowing the President to dictate the terms of the engagement. It is patently obvious that the President failed to respond to the question which I posed, namely, when he will repay the money as directed by the Public Protector. Yet the Speaker completely failed to ensure that the President answer the question posed to him. In allowing the President to evade the question, the Speaker also allowed the President to avoid accountability. This makes a mockery of Parliament and its constitutional role and responsibility.
- The report of the Committee was presented before the National Assembly on 27 November 2014. It is apparent from the agenda of the day that the item was allocated only 25 minutes for deliberation. It is clearly impossible that the National Assembly could have properly applied itself to the facts to come to a proper conclusion in the 25 minutes allocated for discussion on the matter. This time allocation demonstrates that the ANC never intended for the matter to be addressed adequately at the sitting of the House on 27 November 2014. However, as matters turned out, and as a result of the stance taken by the opposition, the matter was discussed for more than 5 hours. The EFF also participated in the discussions.
- Nevertheless, and crucially, the Committee’s report was never properly debated on its merits in the National Assembly. When the merits were sought to be ventilated, there were sharp disputes of fact between members of the ANC and the opposition parties who sat on the Committee. For instance, there was no agreement between the ANC and other opposition parties as to the reasons for the Committee’s failure to call the Speaker to testify at the enquiry. It was at one point alleged that the Committee decided not to call the Speaker to testify. But this was rejected by the members of the opposition parties who indicated that they asked for the Speaker to be called, but that the ANC rammed through its position without regard to the views of other members of the Committee.
- The debate in the National Assembly never dealt properly with the matter. To my knowledge, only the report of the Committee was presented. But this report was far from adequate. The flaws in the report itself have been set out above. In addition to the flaws in the report, several factors must also be taken into account.
- First, there is a total of seven charges pertaining to 20 members. Copies of the charge sheets should have been made available to the National Assembly.
- Second, the EFF made submissions to the Committee, which were rejected on flimsy grounds. The EFF’s submissions should have been made available to the National Assembly.
- Third, the deliberations of 21 August 2014 are recorded in Hansard. This should also have been made available to the National Assembly.
- Fourth, the events of the 21 August 2014 were also captured on video. All available video footage should have been shown to the National Assembly. But this was not the case.
- The report itself goes into some 58 pages. Its substance was the subject of dispute among members who attended the Committee hearings.
- Given these flaws, it is clear that the National Assembly could not have properly and adequately applied itself to the report of the Committee. It could not have taken the view that the Committee’s findings were justified when regard is had to the evidence which was before it. The adoption of the report is a matter which should have undergone a rigorous process of consideration, weighing up and forensic examination. This was thwarted when the ANC majority rammed through the report without any rational discussion on its merits and factual underpinnings.
- Towards the conclusion of the discussion on the matter, the Presiding officer called for a vote, after which the adoption of the report of the Committee was supported by a majority of the members. The EFF members pertinently enquired whether the result of the adoption of the report meant that they were suspended forthwith. The Presiding officer responded that the EFF members were not yet on suspension but could continue participating in the discussions. He further informed the House that the decision of the House will be communicated in writing to the affected members.
- The result is that although the report of the Committee had been adopted, the decision to suspend members of the EFF did not come into effect on that day. It came into effect on the following day, on 28 November 2014, when the EFF members received letters advising them of the suspension.
- The attorneys acting for the EFF made a request to the respondents for an undertaking not to enforce the decision to suspend, but this request has been rejected. At this stage, the only available recourse is to approach this Court for urgent interdictory relief and judicial review.
- I submit that the applicants have a prima facie right to the relief which we seek.
PRIMA FACIE RIGHT
- The applicants submit that the decisions to find them guilty of contempt and to impose sanctions are unconstitutional for breaching section 1 of the Constitution (the rule of law); section 55 (the powers of the National Assembly); and section 58 (freedom of speech in the House). The grounds for these contentions will now be set out.
- In order for the National Assembly to discharge its constitutional duty in terms of section 55 of the Constitution to hold the President and the executive accountable, a meaningful process of accounting to Parliament is required. This includes meaningful responses by the President to questions posed by members of Parliament. It is the duty of the Speaker to ensure that there are meaningful responses to the questions asked. A failure by the Speaker to ensure that the President provides meaningful answers to questions constitutes a breach of section 55 of the Constitution.
- I submit that when regard is had to the contents of the Public Protector’s report, the constitutional role of Parliament and the position of the President, it was vital that the President should account in relation to the matters contained in the Public Protector’s report. Since the Speaker is the leader of the National Assembly, it was constitutionally expected of her to take the lead in ensuring accountability on the part of the head of the executive. Instead she adopted a partisan stance allowing the President to evade his constitutional duty to account to Parliament. The conduct of the Speaker in this regard displays a failure to act independently and impartially as would be expected of the Speaker, who is the head of the National Assembly.
- The EFF notes that the Speaker is a senior politician of the ANC. However, as the leader of the National Assembly, the Speaker has duties which transcend her party-political affiliations. In this regard, Ms Mbete has failed in her duties as the Speaker. In failing to require the President to account to Parliament on the Public Protector’s report, and in her handling of the National Assembly’s session on 21 August 2014, Ms Mbete exhibited bias along party-political lines and acted in breach of s 55 of the Constitution.
- The foundational value of multi-party democracy, entrenched in the Constitution implies the need for the Speaker to be neutral and independent. The fact that she is nominated by the majority party in no way justifies biased conduct on the part of the Speaker. As a result of her bias, the President was never held to account as should have been the case. The mere fact that the President was at Parliament and gave some answers when questions were posed is not sufficient. The answers given by the President in relation to the report of the Public Protector on the security upgrades at the President’s house were manifestly inadequate. It was up to the Speaker to request the President to furnish proper responses to the questions that were asked. Instead, she turned against the persons who were asking the President to account. The Speaker simply accepted the protestation by the President that he had answered the questions without any qualitative assessment of the validity of such responses by the President. The Speaker accordingly acted improperly. An appropriate declaratory order in this regard shall be sought in Part B.
- Further, the Speaker’s decision to refer the matter to the committee in order to institute disciplinary measures against members of the EFF was unconstitutional in circumstances where their key demand was for Parliament to play its proper constitutional role. This Speaker’s decision constituted a breach of s 55 and 58(1)(a) of the Constitution. She sought – through the abuse of the disciplinary process – to supress us from making speaking in Parliament. This has the unfortunate effect of stalling the efforts of the EFF to hold the President accountable to the National Assembly.
- I submit further that the holding by Ms Mbete of the office of the Speaker of the National Assembly, while she simultaneously holds the office of National Chairperson of the ANC is legally untenable. As long as the Speaker continues to hold both offices, it will not be possible for her to perform the functions of Speaker in a manner which promotes the interests of multi-party democracy. Her judgment will always be clouded by political considerations and the need to protect the ANC and its President at the expense of the public interest. Moreover, members of Parliament, and indeed the public at large, will always have a reasonable apprehension of bias on her part, to the detriment of public confidence in Parliament. The manner in which the Speaker allowed the President to evade his responsibility to provide meaningful answers on an issue of national importance lends credence to the perception of the EFF that the proximity of the Speaker to the President – both being members of the “top six” – simply clouds her judgment and makes it intolerable for her to run the affairs of the National Assembly impartially, as required by the Constitution.
- I submit that the Committee, constituted with a majority of ANC members, was legally disqualified from presiding in this matter. The conduct of a disciplinary enquiry over members of the opposition by a Committee thus constituted was unreasonable and procedurally unfair. Further, I submit that the Committee was disqualified from sitting in judgment over members of the opposition because of its bias.
- There is no statutory obligation that the Committee must itself conduct disciplinary proceedings when members of the National Assembly are charged. In terms of section 12(3) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act members have the right to an enquiry which is reasonable and procedurally fair. The decision by the committee that it must conduct the enquiry itself, rather than appoint an independent third party, as it did with the case of the prosecutor, shows its bias and its failure to act reasonably. A reasonable decision would have been the reconstitution of the committee so that there is political balance or to refer the entire issue to a neutral third party. It is submitted that it is unreasonable to conduct an enquiry presided over by a Committee comprising predominantly ANC members to charge, judge and impose sanctions on members of the opposition. This is particularly the case where the issues at stake are as important, emotive and politically divisive as the present.
- In the first place, the President is not just the President of the country; he is also the President of the ANC and, as such, exercises control over the appointment of ANC representatives in Parliament. The members of the Committee are, in a sense, the President’s political juniors. The matter should, accordingly, have been dealt with by a neutral body, not influenced by political affiliations and considerations.
- The National Assembly should also have taken into account the unique and peculiar circumstances of this matter where the majority party purported to stand in judgment of the opposition party. In these circumstances the EFF could never receive a fair hearing.
- Political considerations clearly played a central role in this case. On 22September 2014, Mr Gwede Mantashe, the Secretary General of the ANC, made the remark that members of the ANC deployed in parliament must deal “harshly” with members of the opposition perceived to be disruptive in Parliament.
- It was possible for the Committee to be constituted to avoid the obvious bias inherent in a majority of its members being from the ruling party who clearly had an interest in the outcome, which concerned not only their party’s attempts to silence the EFF holding their leader accountable but also their own culpability as Members of Parliament in the proceedings – and of the Speaker who is their party Chairperson.
- There was nothing to preclude the committee or the House from appointing a neutral person (such as a retired Judge) or committee to deal with the matter.
- The objections by the EFF, which were made pertaining to the composition of the committee, appear to have been rejected on the basis that they were not “evidence.” The reason for the objection is absurd and is indicative of the Committee’s bias; and that it was acting under dictation or for an improper purpose or ulterior motive. The objection did not have to be made under oath. The fact that the Committee failed to respond to any of the criticisms contained in my representations of 6 October 2014, is further proof of its bias.
The Speaker is biased and breached section 55 of the Constitution
Disqualification of the Committee
Violation of section 58(1)(a) of the Constitution
- Section 58(1)(a) of the Constitution guarantees the freedom of speech of members for anything said in the House or any of its committees, subject to the rules of the House. The disciplinary proceedings against members of the EFF constitute an invasion of the rights contained in section 58(1)(a) of the Constitution.
- Sections 58(1) and 71(1) of the Constitution provide that the persons who have freedom of speech in the respective Houses and committees in terms of those sections are not liable to civil or criminal proceedings, arrest, imprisonment or damages for (i) anything that they have said in, produced before or submitted to the relevant House or any of its committees; or (ii) anything revealed as a result of anything that they have said in, produced before or submitted to the House or any of its committees.
- In terms of the Constitution, the following persons have freedom of speech in the respective Houses and committees:
- National Assembly and its committees: Cabinet members, Deputy Ministers and members of the Assembly (section 58(1)(a)).
- National Council of Provinces and its committees: Cabinet members, Deputy Ministers, delegates to the Council, officials in the national executive or a provincial executive referred to in section 66(2) of the Constitution, and the local government representatives referred to in section 67 of the Constitution (section 71(1)).
- Joint committees: Cabinet members, members of the National Assembly and delegates to the National Council of Provinces (section 45(2)).
- I submit that the same constitutional protection applies in relation to the matter at hand here. The members of the EFF were performing their constitutional duty and exercising their freedom of speech in the House. The Act under which they have been charged is subservient to the Constitution. It is submitted that since the right provided for by section 58 of the Constitution in relation to members of the National Assembly is expressed in unqualified terms, it cannot be limited by any law of general application. The Act herein cannot be interpreted in a manner which is at variance with the rights of members of the National Assembly in terms of section 58 of the Constitution.
- The decision to charge members of the EFF in the present circumstances constitutes a violation of their freedom of speech which is protected by section 58(1)(a) of the Constitution. It is submitted that although the decision is based on allegation of disturbance or some disorderly conduct, in substance the primary concern of the Speaker and the majority party is to punish members of the EFF for asking the President a direct question about the report of the Public Protector. This is a violation of the right to freedom of speech contained in section 58(1)(a) of the Constitution.
Unreasonable findings on the evidence
- As noted in the report, the Committee has simply asserted conclusions without any forensic analysis of the probabilities in support of the conclusions that have been reached. This puts a question mark as to whether the Committee in fact applied its mind to the evidence which was before it. I submit that from the contents of the report, it is clear that the committee did not apply its mind to the facts in support of the allegations. Since members are entitled to a reasonable and procedurally fair enquiry, it is unreasonable for members to reach conclusions without applying themselves to the facts, first and foremost.
- I shall now set out the factual objections to the charges which would have been apparent to the Committee if it had been doing its job fairly in accordance with the dictates of natural justice.
- The charge in this regard pertains to the alleged contravention of section 7(a) of the Act. It is alleged that there was improper interference with the performance of the functions of the Speaker when the members allegedly refused to obey the instruction of the Speaker to take their seats. However, the charge should have failed because from a reading of the Hansard report, it is clear that the members were never told in express terms to take their seats. To the extent that some members were told to take their seats, the Speaker was being biased and inconsistent in only instructing EFF members to take their seats and failing to do the same in relation to members of the ANC who also rose to address the House without being recognised by the Speaker.
- Under this charge, the allegation is that there was a breach or violation of Rules 51 and 53.1. There is no reasonable basis to find the applicants guilty of this charge. In the first place, Rule 51 empowers the presiding officer to order a member to withdraw immediately from the chamber. On its own, it imposes no obligations on members. It is Rule 53(1) which imposes obligations on members. It states:
No factual foundation for the offences
“A member ordered to withdraw from the chamber or suspended or named shall, subject to sub-rule (2), forthwith withdraw from the precincts of parliament.”
- Clearly the starting point is whether any member was ordered to withdraw from the chamber or suspended or named. The Hansard shows that no member was ordered to withdraw or suspended or named. The order to clear the House given to the Serjeant-at-Arms, was a generalised order directed at members who were “not serious”. These members were never named. The proper application of the rule clearly requires that the affected members must be named. There can accordingly be no claim that any member was ordered to withdraw and refused to do so.
- The charge for the contravention of Section 7(b) of the Act is unfounded. Mr Holomisa did not give evidence at the enquiry. If he was prevented from asking his question, no doubt he would have raised the matter at the disciplinary enquiry. The allegation that other members of parliament “might have wished to ask the President further questions” is wholly speculative. What is known as a fact is that Mr Holomisa had been recognised by the Speaker. But there is no evidence that he was prevented from asking any question. Accordingly there is no reasonable basis for a finding on guilty on Charge 3.
- The allegation of breach of Rule 49 is incorrect. To the extent that there is any factual foundation for it, it is important to mention that ANC members are also guilty of the same offence but have not been charged with any misconduct.
- The provisions of Rule 72 are clear. The rule provides for the right of a member to speak and states that:
“A member may speak –
- when called upon to do so by the presiding officer; or
- to a point of order”.
- Therefore, a member does not necessarily have to be called upon by the presiding officer in order to speak on a point of order. It is clear on the record that certain members of the EFF wished to speak on points of order, which points were improperly overruled by the Speaker.
- The alleged disturbance in terms of Section 7(e) is also not a valid charge. In order for such conduct to constitute an offence, it must result in interference with or disruption of the proceedings of the House. In this case although it is true that there was chanting, table banging and shouting, it is denied that it resulted in the suspension of the business of the House. The members of the EFF only started chanting and banging the tables after the House had been adjourned. This cannot constitute an impediment to the proper functioning of the House. Furthermore, members of the ANC were rowdy but have not been charged.
- It is submitted that there is no basis for the allegations that the applicants acted in violation of Section 7(a) of the Act. It was not only members of the EFF who did not leave the chamber. It was members of the public, members of the ANC and some members of the EFF. Accordingly for disciplinary action to be fair and reasonable, people who are similarly situated should be treated similarly.
- The Committee should, accordingly, have acquitted the members of the EFF who were charged with misconduct. The mere fact that the EFF decided not to participate in the enquiry did not divest the Committee of its duty to carefully scrutinise the evidence. It is submitted that the Committee failed to consider the evidence properly.
Violation of ss 33 and 34 of the Constitution and s6 of the Promotion of Administrative Justice Act 3 of 2000
- The applicants are entitled to a fair hearing in terms of sections 33 and 34 of the Constitution. Section 33 provides for the right to just administrative action. Section 34 on the other hand, provides that “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”
- The dispute which had arisen herein is a dispute that must be resolved by application of law. This entitled the applicants to a fair hearing before an independent and impartial tribunal or forum. The composition of the Committee, being dominated by the ANC, did not comply with the requirements of fairness as provided for in s 34 of the Constitution. The disciplinary enquiry and the subsequent suspensions of the applicants are in contravention of section 34 of the Constitution.
- Section 33 of the Constitution provides for the right to just administrative action. Section 12(3) of the Act gives partial effect to that constitutional right by requiring, as a condition precedent for any disciplinary action, that the Committee enquire into the matter “in accordance with a procedure that is reasonable and procedurally fair”.
- The decision to charge members of Parliament and to suspend them from office is administrative action in accordance with the provisions of the Promotion of Administrative Act 3 of 2000 (“PAJA”). This means the applicants were entitled to all the protections in PAJA. As explained above, the decision to suspend the applicants was in transgression of the provisions of PAJA. The basis for the review, in terms of PAJA are as follows:
- Section 6(2)(a)(i) and (b) of PAJA: the Committee was not empowered to take the decision without complying with the peremptory requirements of the Act. The Committee was only empowered to take the decision after complying with the requirements of reasonableness and procedural fairness. Since the composition of the Committee was legally flawed from the outset, it is submitted that the Committee could never have complied with the conditions precedent for the holding of the disciplinary enquiry against the members of the EFF. Equally the National Assembly’s powers for taking disciplinary action against the EFF are constrained by the requirements of reasonableness and procedural fairness. They failed to comply with these requirements. Finally, the National Assembly can only resort to the decision to suspend members without salary or benefits after it has satisfied itself that the misconduct is of a repeated and serious nature and that the other sanctions provided for are inadequate. There is no reference in the report to anything which points to the fact that the Committee or the National Assembly followed this legislative prescript. It is submitted that both the decisions of the Committee and that of the National Assembly are accordingly not authorised by the empowering provision.
- Sections 6(2)(a)(iii) and 6(2)(c) of PAJA: the process was vitiated by bias and was procedurally unfair. If one takes into account the totality of the facts, it cannot seriously be contested that the disciplinary process against the EFF members was unfair, and that there was a reasonable basis for the belief among the EFF members that the Speaker and the Committee were biased in instituting and conducting the disciplinary enquiry. The material facts in this regard include the following:
- The EFF sought to pose questions to the President pertaining to the report of the Public Protector, which has not been implemented by the President and which has become a highly emotive and politically-divisive issue;
- The President failed to provide any appropriate answers to the question which I posed to him in Parliament;
- The ANC Secretary-General made public pronouncements demanding the harsh punishment of the EFF.
- The person who referred the matter to the committee, the Speaker, is herself the Chairperson of the ANC;
- The composition of the Committee, which was made up of a majority of ANC members;
- The manner in which the Committee conducted itself further demonstrated that it was biased against the EFF:
- The committee rejected the submissions of the EFF on a flimsy ground that it was not evidence. The submission of the EFF was not being made as evidence. It was being made in order to object to the Committee’s constitution and process on grounds of principle.
- The Committee relied on the requirement that the statement must be made under oath, which has no basis in law, and thereby avoided considering the merits of the EFF’s submissions;
- The Committee failed to advise the EFF members of the need to make the statement under oath;
- The Committee failed to call for the evidence of the Speaker, notwithstanding that she is clearly a material witness whose conduct was the direct cause of the complaints of the EFF. If the committee was interested in investigating the facts properly, it should have called for the evidence of the Speaker.
- Further, it is clear from the consideration of the report that the Ministers who were called gave evidence by way of affidavits and were not questioned by the committee members on the contents of their affidavits. Yet, the affidavits were central to the findings ultimately made against the EFF members. There is no cogent explanation in the report for why the Ministers were not called to give evidence in person. These affidavits also came into the picture after closing remarks had been made by the prosecutor.
- The submission of the EFF was rejected and appears to have been taken into consideration only at the sanction stage.
- The Committee failed to take into account any mitigating factors in favour of the EFF. Some of these were already highlighted in the submission of the EFF on 6 October 2014.
- Section 6(2)(e)(i),(iii),(iv),(v),(vi),and 6(2)(f)(ii): the decision was taken for an improper political purpose and under the dictation of the ANC, in bad faith, arbitrarily and capriciously, and was materially influenced by irrelevant considerations and the failure to take into account relevant considerations. The views of the ANC about the issues being championed by the EFF are well known. On 29 July 2014 Mr Gwede Mantashe compared the EFF with the Nazi party, without any factual basis for it. Furthermore, Mr Mantashe had claimed that the EFF must be dealt with harshly.
- Ultimately, it is submitted that the conduct of the Committee and the Committee was not motivated by a genuine desire to ensure that rules of Parliament are complied with and enforced. It was an act of bad faith, and was motivated by multiple political goals. The ANC wants to protect Mr Zuma from accounting on the findings of the Public Protector. The ANC also wants to punish the EFF for raising a genuine debate about a matter of public importance that Parliament must play its proper constitutional role of holding the President accountable. The ANC’s political motives materially informed the disciplinary action taken against the EFF members, while the EFF’s submissions on the legality of the process were ignored.
- Section 6(2)(h): the decision to charge the members of the EFF and the resultant decision to suspend them from office is unreasonable and no reasonable decision maker acting reasonable could have arrived at such decision. The reasons for this contention have been advanced above and will not be repeated herein.
Improper application of sanction
- In terms of section 12(5)(g) of the Act, a member may be suspended without remuneration for a period of up to 30 days consequent upon a finding of misconduct or contempt of Parliament. This provision is qualified by section 12(9), which provides:
“(9) A member may not be suspended under subsection (5)(g) unless the House has found that –
(a) the member is guilty of a serious or repeated contempt; and
(b) none of the other penalties set out in subsection (5) will be sufficient.” (Emphasis added)
- Thus, any decision to suspend a member of the National Assembly without remuneration is considered, two peremptory factors must be taken into account. First, the gravity of the charge by reference to seriousness and its repetition. Second, whether or not the other penalties in subsection (5) are sufficient. These are jurisdictional facts for the imposition of the sanction of suspension without pay. If they are not present the suspension without pay is unlawful. In this case, as explained below, neither the committee nor the National Assembly applied themselves to these jurisdictional facts.
- The report of the Committee makes no reference to why the sanctions in section 12(5) are not sufficient. It also makes no reference to the gravity of the office or its repetition. The inescapable inference is that the Committee did not apply its mind to the mandatory provisions of the legislation. This vitiates the entire proceedings or alternatively the sanctions imposed. The National Assembly did not debate whether or not the other sanctions provided for in section 12(5) are sufficient. It simply adopted the flawed report of the committee.
- It is accordingly submitted that there is a strong prima facie case that the entire proceedings and the findings of the committee may be set aside in a court of law in due course. It is also submitted that there is a strong prima facie case that the decision of the National Assembly will also be set aside in due course on account of the flaws narrated herein.
- The suspension without pay will result in irreparable harm. All the applicants rely on the salary they receive as members of Parliament to earn a living. If the salary is suspended, that will cause significant financial harm which cannot be remedied. It will also result in members defaulting on their monthly financial obligations such as medical aid, pension payments, credit agreements (including credit cards, vehicle finances, mortgage bonds) and payments related to family members whom they support.
- It is also particularly harsh and vindictive that the suspension of salary will come into effect during the Christmas period when it is known that material financial demands will be placed on individual members and their families. It is also known that the majority of the members of the EFF do not only support themselves, but also support members of their extended families financially. The adverse financial impact of the suspension without pay thus radiates beyond the individual applicants and affects quite a large number of people, many of whom wholly depend on the remittances given by their sons and daughters who are members of the National Assembly.
- It is true that the money might ultimately be recovered in due course if the EFF is subsequently successful in relation to Part B. But there is no reason to impose undue financial hardship on members of the National Assembly, only to reverse it at a later stage. The most appropriate thing to do is to hold the operation of the suspension at this stage until Part B is finally decided. Should the EFF lose Part B, it is clear that the National Assembly will be entitled to impose whatever sanction is appropriate and within the law.
- But the irreparable harm also lies elsewhere. The members of the EFF who have been suspended do not have access to their offices for the period of the suspension. They are not allowed to enter the premises of the National Assembly to carry on with their work. They must be absent from office, until 28 December 2014.
- The EFF is a critical voice of the opposition. Its absence from the Parliamentary precincts and inability to participate in the recess activities of Parliament will impoverish the democratic process and undermine a key constitutional value of multi-party democracy which is enshrined in section 1 of the Constitution. It will also mean that vital issues communicated during this period will not be sent to the EFF, a party which represents working class people and poor people who are committed to socialism. The role played by the EFF simply cannot be replicated by other opposition parties. It is a unique role with a unique brand of politics and ideology. It would be wholly inappropriate to allow the EFF to be absent from Parliament in the interim while knowing full well that there is a bona fide challenge to the legality of the suspension.
- The fact that December is a recess period does not mean the work of members of Parliament will stop. Members of Parliament must visit constituencies to report on the work for the year and refresh their mandates for the coming year. All members of the EFF are required to report back to their constituencies during the December break. This is a vital part of being a member of the National Assembly. If one cannot keep in touch with the constituency, the work of members of will vastly diminish because mandates cannot be refreshed and reports cannot be given. For the EFF, being a new party in Parliament, this will be the first lengthy vacation.
- It will be recalled that the suspension is not only about salaries. It is also with regard to benefits, including travelling allowances. The suspension means that Parliament cannot pay for flights in order to allow us to do our constituency work. We are also not allowed access to the premises of Parliament. All of these cause significant disruptions in our ability to carry out our constitutional duty to the electorate.
- The next sitting of Parliament commences in February 2015. It is vital that when this sitting commences, we are ready to play our role as members of Parliament. Unless we have been able to report to constituencies and refresh our mandates, we will be placed at a major disadvantage when compared to the ANC and other parties in Parliament. We cannot do this unless we full access to our rights and privileges as members of Parliament.
- Given the strong prima facie right to the relief sought in Part B, it is submitted that there is no reason to subject the EFF members to this irreparable harm. This harm will also affect the EFF’s constituency, which will be a violation of the voters’ rights in section 19 of the Constitution.
BALANCE OF CONVENIENCE
- It is submitted that the balance of convenience favours the granting of this application. The suspension will effectively silence the critical voice of the EFF in Parliament for a substantial period of time, and will impede its Parliamentary work outside of the House. On the other hand, there is no harm which will be suffered by the Speaker if the imposition of the suspension is stayed until Part B is decided. Should the decision come into effect immediately, any victory which the EFF might achieve in Part B shall be rendered hollow. That is because at the time of the determination of Part B the suspension would have come into effect and become irreversible.
- This application is inherently urgent. The applicants cannot obtain adequate relief in due course. The suspension is temporary. If the applicants must wait to bring the application in the normal course, then the consequences of the suspension would have come into effect and become irreversible. In effect that would frustrate the right to the applicants to challenge the legality of their suspensions.
- The applicants have not delayed unduly before instituting the proceedings. Prior to the decision of the National Assembly, the applicants would not have been able to institute these proceedings. The National Assembly took its decision on 27 November 2014. However, at this meeting of the National Assembly, it was also made clear that the suspension would only come into effect on receipt of letters from the Speaker.
- The letters of suspension were delivered on 28 November 2014. The letters make it clear that we have been suspended until 28 December 2014. During this period the applicants shall have no access to any of the benefits of being members of Parliament. If the application is not urgently decided, it would be too late to reverse the decision. The harmful consequences of the decision would have taken rook and become irreversible.
- It is accordingly submitted that the application should be heard on urgent grounds.
- In the circumstances I pray for the relief as set out in the notice of motion.
JULIUS SELLO MALEMA
THUS SIGNED AND SWORN TO at …………………….. on this …….. day of December 2014 the deponent having acknowledged that the deponent knows and understands the contents of this affidavit, that the deponent has no objection to taking the prescribed oath, that the oath which the deponent has taken in respect thereof is binding on the deponent’s conscience, and that the contents of this affidavit are both true and correct.
COMMISSIONER OF OATHS
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