Report of the Joint Committee on Ethics and Members' Interests on the Breach of the Code of Conduct by the hon Mrs N W Madikizela-Mandela, MP, dated 21 August 2002:
Present
National Assembly
Aucamp C (AEB) Fihla N B (ANC) Moorcroft E K (DP)
Blanché J P I (FA) Frolick C T (UDM) Mulder C P (FF)
Cronin J P (ANC) Green L M (ACDP) Seaton S A (IFP)
De Lille P (PAC) Jassat E E (ANC) September R K (ANC)
Ditshetelo P H (UCDP) Landers L T (ANC)
NCOP
Kolweni Z S (ANC) Ntlabati S (ANC) Mushwana M L (ANC)
Lubidla E N (ANC) Durr K D S (ACDP) Vilakazi N (IFP)
Mkhaliphi B J (ANC) Matthee P A (New NP)
Nkuna C (ANC) Sogoni T (UDM)
1. BACKGROUND
The Joint Committee on Ethics and Members' Interests met at 17:00 on 20 August 2002 in Room V119, Parliament, to consider the recommendations of the panel which had presided at the hearing on the alleged breach of the Code of Conduct by Mrs N W Madikizela-Mandela.
The panel was appointed at a meeting of the Committee on 8 May 2002 in terms of paragraph 3.5 of the Procedure for the Investigation of Complaints.
2. CONSIDERATION OF CORRESPONDENCE FROM MRS MADIKIZELA-MANDELA'S ATTORNEYS
2.1 The Committee was informed that on 13 August 2002, Mrs Madikizela-Mandela had been advised of the recommendations of the panel. Mrs Madikizela-Mandela was further advised that she would be entitled to make representations to the Committee at its meeting on 20 August 2002 in respect of the recommendations of panel.
2.2 On 16 August 2002 Mrs Madikizela-Mandela's attorneys, Savage Jooste & Adams, informed the Committee in writing that she had a medical certificate for the period 19 July 2002 - 31 August 2002. The Committee noted that the letter did not request that the meeting be postponed. Instead, it questioned the procedure followed by the panel in conducting the proceedings in her absence.
2.3 In terms of section 20(a) of the Code the National Assembly must consider the findings of the Committee. It was noted that Mrs Madikizela-Mandela is entitled to make a statement to the National Assembly when it considers the decision of the Committee.
The Committee agreed unanimously to proceed with its deliberations, as it was of the view that the panel had made its finding on the basis of documents before it, and noted that Mrs Mandela still had the right to make representations to the National Assembly before the report was adopted.
3. ADOPTION
The Committee unanimously adopted the recommendations of the panel as amended.
Recommendations of the panel considering breaches of the Code of Conduct by the hon Mrs N W Madikizela-Mandela, MP, dated 7 August 2002:
Chairperson: Mr L T Landers
Present
Mr C Aucamp (AEB)
Rev M Chabaku (ANC)
Mr P A Matthee (New NP)
Mr M L Mushwana (ANC)
Mrs S Seaton (IFP)
In attendance
Ms F Mahomed (Registrar of Members' Interests), Mrs F Isaacs (staff), Mr D Ramurunzi (Parliamentary Legal Adviser) and Ms T Mabona (staff)
1. BACKGROUND
The Joint Committee on Ethics and Members' Interests, at its meeting of 8 May 2002, agreed that a panel should be convened, in terms of section 3.5 of the Procedure for the Investigation of Complaints, to consider the allegations against Mrs N W Madikizela-Mandela. The panel was mandated to preside at the hearing on the complaint against Mrs Madikizela-Mandela and to make recommendations to the Committee.
2. HEARING
2.1 The hearing commenced at 10:30. By 10:34 Mrs Madikizela-Mandela had not arrived. The Chairperson asked the Registrar to explain whether Mrs Madikizela-Mandela had been properly informed about the hearing.
2.2 The Registrar explained that the Joint Committee on Ethics and Members' Interests had agreed, at its meeting of 8 May 2002, that Mrs Madikizela-Mandela should be called to a hearing.
2.3 On 9 May 2002 Mrs Madikizela-Mandela was served with a notice to attend a hearing to be held on 22 May 2002 at 10:30.
2.4 Through attorney Savage Jooste & Adams, in a letter to the Registrar dated 15 May 2002, Mrs Madikizela-Mandela requested that the hearing be postponed. This request was acceded to in the interests of fairness.
2.5 A notice informing Mrs Madikizela-Mandela of the revised date was sent to her office in Parliament and her office at the ANC Women's League on 22 May 2002. She was advised that the hearing had been rescheduled for 12 June 2002.
2.6 Mrs Madikizela-Mandela did not arrive at the hearing on 12 June 2002. As there was no written confirmation of service on Mrs Madikizela-Mandela the panel agreed that a new notice be served through the Sheriff of the Court to prevent any dispute on the service of the notice.
2.7 Three attempts were made by the Sheriff of the Court to serve Mrs Madikizela-Mandela with the notice of hearing: on 16 July at 10:00, on 17 July at 14:45 and on 19 July at 15:25. On each occasion Mrs Madikizela-Mandela was not present to receive the notice. In consultation with Mr Mushwana the Sheriff was advised to serve the notice to whoever was present at Mrs Madikizela-Mandela's residence. Mr P W Gosani, who identified himself as Mrs Madikizela-Mandela's personal assistant, accepted the notice on 23 July 2002.
2.8 On 30 July 2002, Mrs Madikizela-Mandela communicated to Mr Landers that the notice which had been sent to her residence had gone astray and requested that the notice be sent to Mpho at facsimile number (011) 376-8428. Mpho verbally confirmed that he had received the fax.
2.9 The panel unanimously agreed that Mrs Madikizela-Mandela had received sufficient notice to attend the hearing.
2.10 The panel noted that the notice of the hearing advised that proceedings would continue if the member did not attend. The panel agreed that hearings are intended to give the member an opportunity to present the facts pertaining to any allegation and that, should the member not use the opportunity to present the facts, then the panel must proceed with the information at hand.
2.11 Before proceeding the panel considered whether the sub judice rule applied in this case. The panel took note of the legal opinion of the Parliamentary Legal Advisers, which stated that, as the information on the bail application related to a concluded pretrial procedure, and the information to be considered by the panel concerned the bail application and not the merits of Mrs Mandela's trial, the sub judice rule accordingly was not applicable to the inquiry being considered.
3. ALLEGATION AGAINST MRS MADIKIZELA-MANDELA
3.1 It is alleged that Mrs Madikizela-Mandela did not comply with the Code of Conduct with regard to financial interests. The Code of Conduct is an addendum to the Joint Rules of Parliament.
3.2 Section 16 of the Code states that a member breaches the Code, if the member -
(a) contravenes or fails to comply with a provision of this Code;
(b) when disclosing registrable interests, wilfully provides the Registrar with incorrect or misleading details.
3.3 Non-disclosure of donations received
Section 8(e), (f) and (g) of the Code, as cited below, stipulate that members must disclose all gifts, hospitality, sponsorships and benefits.
(e) Sponsorships:
(i) the source and description of direct financial sponsorship or assistance from non-party sources; and
(ii) the value of the sponsorship or assistance.
(f) Gifts and hospitality:
(i) a description and the value and source with a value in excess of R350;
(ii) a description and the value and source of a gift from a single source which cumulatively exceeds R350 in any calendar year; and
(iii) hospitality intended as a gift in kind.
(g) Benefits:
(i) the nature and source of any benefit of a material nature; and
(ii) the value of that benefit.
3.4 Non-disclosure of financial interests or directorships in respect of the Winnie Mandela Family Museum
Section 8(a) and (c) of the Code stipulates that members must disclose:
(a) Shares and financial interests in companies and other corporate entities:
(i) the number, nature and nominal values of shares of any type in any public or private company;
(ii) the name of the company; and
(iii) the nature and value of any other financial interests held in a private company or any other corporate entity.
(c) Directorships and partnerships:
(i) the name and type of business activity of the corporate entity or partnership; and
(ii) the amount of any remuneration received for such directorships or partnerships.
3.5 The panel considered a third charge of making a "wilful attempt to mislead the Committee in your response to the complaint made against you".
3.6 The panel agrees that the third charge is not defined as a breach of the Code of Conduct and therefore cannot apply. Consequently, the panel recommends that the third charge be dropped.
4. CONSIDERATION OF THE EVIDENCE PRESENTED
4.1 A copy of Mrs Madikizela-Mandela's 2001 disclosure form was scrutinised. It is noted that Mrs Madikizela-Mandela did not disclose any gifts, hospitality, sponsorship or benefits. There was also no disclosure regarding Mrs Madikizela-Mandela's interests in the Winnie Mandela Family Museum.
4.2 The panel also considered documents received from Adv Jan Ferreira of the Specialised Commercial Crime Unit pertaining to Mrs Mandela's bail application (case number 14/9001/01), in which the sworn affidavit made by Mrs Madikizela-Mandela on 18 October 2001 states, under point 5: "My expenditure exceeds my income by far and I rely mostly on donations from friends, supporters and well wishers."
4.3 The panel also considered documents from the South African Companies Registration Office pertaining to the registration of the Winnie Mandela Family Museum CC enterprise number 2001/044386/23. According to form CK1, signed on 21 June 2001, Mrs Madikizela-Mandela, ID number 3609260323089, is the sole member.
4.4 The panel considered Mrs Madikizela-Mandela's letter of 11 February 2002, in which she states in paragraph 1 that "the Museum belongs to the Mandela children and I have no personal financial interests in it, the books are open for inspection if you so wish. It is a family home like all of you have your family homes. By now you surely know that the matter is under litigation against Mandela and Motlanyana and I can say no further. For more information you may contact Advocate Ismail Semenya and others."
4.5 In paragraph 3 of the same letter, Mrs Madikizela-Mandela states that "your question based on nonsensical speculative media reports, reporting to the quotes from my lawyer who were instructed on the very day of my arrest is inaccurate. Surely it is inconceivable even to an imbecile that 'I' alone can consume groceries of R10 000 a month that is beyond any logical thinking. Is it really possible for anyone even the 'supernatural' 'Winnie' to get donations of R50 000 per month? Lawyers throughout the world are known to argue anything to save their clients. I was not even aware that in their desperation to get me out on bail they inferred this type of information."
4.6 The panel also noted that Mrs Madikizela-Mandela did not respond to requests for further information on 19 February 2002.
4.7 In consideration of her sworn affidavit and the denial in her letter to the Committee on 11 February 2002, the Committee agreed that more weight must be attached to the affidavit.
4.8 The panel also considered the non-disclosure of the Winnie Mandela Family Museum and noted that the Code stipulates that members must disclose any financial interests even if members do not draw benefits from them. The CK1 form regarding the Winnie Mandela Family Museum CC disproves Mrs Madikizela-Mandela's denial of ownership.
5. UNANIMOUS FINDINGS OF THE PANEL
5.1 Charge no 1: Non-disclosure of donations received
5.2 Finding: Guilty
5.3 Reasons
The panel finds Mrs Madikizela-Mandela guilty on the basis of an admission she made in a sworn affidavit and which was handed in at the bail application of case 14/9100/01 on 18 October 2001. To this end, the panel finds that Mrs Madikizela-Mandela contravened section 16(a) read with section 8(f) and 8(g) of the Code of Conduct.
5.4 Charge no 2: Non-disclosure of financial interests in respect of the Winnie Mandela Family Museum
5.5 Finding: Guilty
5.6 Reasons
The panel finds Mrs Madikizela-Mandela guilty of having contravened section 16(a) read with section 7(a) and 8(a) of the Code of Conduct, in that she did not disclose the Winnie Mandela Family Museum and her interest therein.
6. PENALTY
For the purposes of sentencing, the panel recommends that Mrs Madikizela-Mandela be:
(a) severely reprimanded by the Speaker of the National Assembly; and
(b) penalised with a reduction of the equivalent of a period of 15 (fifteen) days' salary.
7. FURTHER RECOMMENDATIONS
7.1 The Committee notes that Mrs Madikizela-Mandela's non-attendance at the hearing may be construed as contempt of Parliament and therefore Parliament should consider whether any further action might be initiated in this regard.
7.2 The Committee notes that Mrs Madikizela-Mandela's statement of 11 February 2002 creates the impression that she may have misled the court in her bail application. The panel recommends that Parliament find a mechanism to deal with this matter and that, if necessary, it be referred to the relevant authority.