Reply by Julius Malema MP, Economic Freedom Fighters leader, to Baleka Mbete MP, Speaker of the National Assembly, August 29 2014
EFF leader says the Speaker is acting beyond her powers in trying to have him preemptorily suspended for 14 days
REQUEST FOR THE HOUSE TO SUSPEND MEMBERS TERMS OF ITEM 10 OF THE SCHEDULE TO RULES OF THE NATIONAL ASSEMBLY
The above matter and your letter dated the 26th August 2014 refers:
You have requested that I should supply you with reasons why I should not be suspended for the events which took place during questions to the president on the 21 August 2014.
In your letter referred to above where you allege the following:
1. I improperly interfered with or impeded the exercise or the performance by the House of its authority or functions;
2. improperly interfered with the performance by a member Of his or her functions as a member; or
3. I have created a disturbance within the precincts of Parliament while the House was meeting.
You have further alleged that wilfully failed or refused to obey Rules and orders of the House, interfered with the performance by the speaker and other members of their constitutional functions and ultimately impeded the House’s ability to conduct and conclude its business.
Your allegations remain vague and vexatious as they not clearly state the specific conduct which contravenes the provisions of section 7 of Act NOA of 2004 to which you refer.
However, I will attempt to respond to the best of my ability and knowledge of the events as they occurred on the day in question. Presumably it will cover the so-called conduct you are referring to.
As far as I can recall, the events of the day started with a question I posed to the President On the report of the Public Protector. I wanted to know when the President would pay back the money as recommended by the Public Protector.
The President failed to answer my question to the satisfaction of some of members of Parliament.
When I tried to make a follow up you then ordered me to get seated which I complied. Other members of EFF tried to make a follow up and you refused them such opportunity.
When the Honourable members of the Parliament insisted with their points of order you also insisted making the following utterances, “Honourable members please get seated”.
You made such utterances over and over again without necessarily referring to any specific individual.
Honourable Speaker, you further made utterances to the effect that you will call Sergeant in Arms to come and remove all the members of the parliament who were not serious and interested to the business Of the day.
This was another confusion you created to the House.
When the Honourable members insisted in raising their points of order you then suspended the proceedings of the House and said security will come and remove members who are not serious about the business of the day.
After the suspension of the proceedings we then chanted “Pay Back Money” and the Sergeant in Arms asked us not to make your job difficult.
Whilst we were chanting “Pay Back Money” which was during suspension of the proceedings, members of the ruling party on the Other hand also broke into a song, “Awelethe Umshini Warni”.
You then later came back to reconvene the House and there was order and even when you made announcement for Honourable members to vacate there were no disruptions.
When other Honourable members of the House decided to leave the House decided to remain behind because there was no need for me to leave the House.
I wish to advise you that as per your announcement there was no security that came to request me to leave the House. I also wish to put it on record that I never at any stage refused to obey rules and orders of the House as you so allege.
As the presiding officer you never referred nor ordered me to take my seat or leave the House.
On more than two occasions you made the following utterances, “Honourable members please get seated”. At no stage did you refer to me in person.
You will know it better than me that the Rules do not provide for a platform to be addressed as a group but as individuals, particularly on matters of misconduct. During your intervention on the day in question, you kept referring to a group of Honourable members who are not serious about the business of the day and as such I never thought you were referring to me for I can never be addressed to as a group. You continued to do so even when you were asked as to whom are you specifically referring.
You will also know better than me that Rules of the National Assembly do not apply when proceedings are suspended.
Thus, in case you are referring to the chanting Of “pay Back the Money” since your letter is not very clear as to what you are referring to, this occurred when the House was suspended and therefore could not be referred to as unparliamentarily.
APPLICABLE RULES AS ALLEGED BY THE SPEAKER
Section 12 of Powers, Privileges and Immunities of parliament and provincial Legislatures Act 4 of 2004 (hereinafter referred as, the Act) provides that:
(1) Subject to this Act, a House has all the powers which are necessary for enquiring into and pronouncing upon any act or matter declared by or under section 13 to be contempt of Parliament by a member, and taking the disciplinary action provided therefore.
(2) A House must appoint 0 standing committee to deal with all enquiries referred to in subsection (1), the standing committee must –
(a) enquire into the matter in accordance with a procedure that is reasonable and procedurally fair; and
(b) table a report on its findings and recommendations in the House.
Subsection (5) provides as follows:
When a House finds a member guilty of contempt, the House may, in addition to any other penalty to which the member may be liable under this Act or any other law, impose any one or more the following penalties:
(a) A formal warning;
(b) a reprimand’
(c) Order to apologise to Parliament, of the member’s right to the use or enjoyment of any specified facility provided to members by Parliament;
(d) the withholding, for a specified period of the member’s rights to the use Or enjoyment of any specified facility provided to members by Parliament;
(e) the removal, or the suspension for a specified period, of the member from any parliamentary positon occupied by the member;
(f) a fine not exceeding the equivalent of one month’s salary and allowances payable to the member concerned by virtue of the Remuneration Of Public Office Bearers Act, 1998 (Act No.20 of 1998);
(g) the suspension of the member, with or without remuneration, for a period not exceeding 30 days, whether or not the House or any Of its committees is scheduled to meet during that period.
Section 55(2) Of the Constitution provides as follows: The National Assembly must provide for mechanisms –
(a) To ensure that all Executive Organs of State in the national sphere of government are accountable to it.
In posing question to the President based on a report by the Public Protector, I was discharging my obligation to the members of the public as required by the abovementioned provisions of our Constitution.
Furthermore, I am still within the prescripts of the law more specifically freedom of expression in debating matters of public interests in National Assembly.
It is my conviction that what we are doing was to hold the President as the head of the executive accountable. In performing this task, I was serious hence your instruction that members of the House who are not serious must leave the House did not apply to me.
It is worth mentioning that the parliament is the national key point where serious public matters are debated. My constituency will only participate in these democratic processes through myself as their duly elected representative.
On the August 2014 1 exercised my constitutional right to engage in matters of public interest on behalf of my constituency and the citizens Of South Africa at large.
Furthermore, Rule 56 Of the Rules of National Assembly provides that:
In the event of grove disorder at a meeting, the presiding Officer may adjourn the meeting, or may suspend the proceedings for a period to be stated by him or her.
The nature of the matter debated was one of those most highly contested issues, being the report of the Public Protector about Nkandla, however, there was no grave disorder that necessitated the suspension of the Parliamentary proceedings and calling of Sergeant in Arms.
When the President could not respond to my questions the majority members Of the House raised points Of order in a manner in accordance With the decorum of the House.
According to Rule 58(2) Part 2….At a sitting in the Chamber of National Assembly a member may only speak from the podium, except-
(a) to raise a point Of order or question Of privilege.
Points of order raised by Honourable members were within the provisions of Rule 58(2) and it still did not amount to any gross disorder as you alleged.
APPLICATION OF THE RULES TO THE FACTS
Section 12 provides a two – legged approach in that, before a House may take any disciplinary action against a member in terms of subsection (1), the Standing committee must-
(a) Enquire into the matter in accordance with a procedure that is reasonable and procedurally fair.
The Standing Committee must be appointed and be given terms of reference that will guarantee a procedure which is reasonable and procedurally fair. In fulfilling its obligation of fairness and reasonableness the committee will consider all the surrounding circumstances that gave rise into a conduct for which the member is subjected to a disciplinary action,
The second leg surfaces under subparagraph (b) which requires the tabling of a report on its findings and recommendations in the House.
The committee must report its findings after having enquired and heard all the submissions made by the affected party or parties. When making recommendations to the House provisions of subsection (9) subparagraph (a) and (b) come into operation only if I am found guilty by the House. Therefore, your premature intention to suspend me would still be unconstitutional and be in contravention of the provisions of this Act by you as a Speaker.
The provisions of Section 12, Act No: 4 of 2004 are peremptory.
In this case, Honourable Speaker your action is ultra vires in that you have written a letter ordering members Of parliament to give reasons as to why they should not be suspended without following the correct procedure.
You did that without appointment Of the Standing committee as prescribed by the Act. The process of disciplinary action does not lie with you alone but is a process that must be conducted as per prescripts of the Act. Your action is not in accordance with provisions Of the Act.
It is my humble submission that your conduct of stating your intention in the correspondence addressed to me prejudges and compromises the objectivity and independence of the committee.
It is my humble submission further that, you are holding a position of power and influence Honourable Speaker and therefore your prejudgement and/or insinuation will result to undue influence.
The behaviour and the conduct of some members of parliament did not amount to grave disorder as illustrated in Rule 56 above, and as such you prematurely suspended the proceedings.
Further on this point, there was no threat or eminent violence displayed by myself or any other member of the opposition parties and therefore calling Of Sergeant in Arms was not justified instead it was capricious.
Objectively, you needed to assess the circumstances and use the test of a reasonable person.
According to Rule 51 of the Rules of National Assembly, “…if a member is in contempt of or disregarding the authority of the chair or that a member’s conduct is grossly disorderly, he or she may order the member to withdraw from chamber for the remainder of the day’s sitting”.
I did not commit any act as stipulated above hence I did not even think that you were referring to me. My conduct does not satisfy the above prerequisite. If I had committed any act as described by Rule 51 of the Rules of National Assembly surely, you could have made it clear by calling my name.
My question to the President can never amount to gross disorder as prescribed by the Act, nor could it be categorised as showing lack of interest to the business of the day.
You referred repeatedly to “Honourable members of the House who were not interested to the business of the day” without specifically describing who could be those members. If you harbour a belief Honourable speaker that I am one of those members I vehemently dispute that I fit such description. I any event, it is not provided in any of the Rules of this House to throw out members who befits your description.
Honourable speaker you can only order Sergeant in Arms to remove only members who act within the framework Of Rule 51 which I am not one of those.
I submit that I never deliberately contravened any of the Rules of the National Assembly or commit any contempt of or disregarded your authority and as such your intention to suspend me will be unconstitutional.
Furthermore, your conduct badly interferes with the notion of separation of powers and the spirit of our Constitution and under the circumstances you should expressly withdraw your intentions on or before Sunday 31 August 2014 at 12:00 noon failing which I will have no other option but to approach an appropriate forum for an appropriate relief.
SIGNED AND DATED AT CAPE TOWN ON THIS THE 29TH DAY OF AUGUST 2014.
JULIUS MALEMA (MP)
EFF Party Leader