ATC171129: Report of the Joint Committee on Ethics and Members Interests on the Complaint against Hon. Figlan, MP, dated 29 November 2017

Ethics and Members' Interest

REPORT OF THE JOINT COMMITTEE ON ETHICS AND MEMBERS INTERESTS ON THE COMPLAINT AGAINST HON. FIGLAN, MP, DATED 29 NOVEMBER 2017.
 

1. Background

 

1.  On 18 June 2015, the Office of the Registrar received a complaint submitted by the Chief Whip of the majority party to the Joint Committee on Ethics and Member’s Interests (“the Complaint”);
2.  The Complaint referred to an incident regarding an allegation of sexual harassment of a member of the public by Hon. Figlan, which took place during a protest March in Cape Town, ahead of the State of the Nation Address during 2015.

 

1. Relevant sections of the Code of Ethical Conduct

 

1.  Paragraph 2.3 of the Code of Ethical Conduct and Disclosure of Members’ Interests states that the purpose of the code is “to create public trust and confidence in public representatives and to protect the integrity of Parliament”.
2.  In terms of section 2.4 of the Code, one of the principles that Members must adhere to is that of Leadership. Members must in this regard promote and support ethical conduct by their leadership and example.
3.  The Code lays down further in the section 4, the standards of ethical conduct that Members must adhere to. For the purposes of this matter the following standards are pertinent :-

 

A Member must in terms of section 4.1; 4.1.3; 4.1.5 and 4.1.6 of the Code respectively –

 

2.3.1 uphold the law;

2.3.2 act at all times in accordance with the public trust placed on them;

2.3.3 maintain public confidence and trust in the integrity of Parliament and thereby engender the respect and confidence that society needs to have in Parliament as     representative institution; and

2.3.4 In the performance of their duties and responsibilities, be committed to the eradication of all forms of discrimination.

1. Consideration of the Code in respect of the allegation against Hon. Figlan

3.1 In terms of paragraph 10.3.2 of the Code the Registrar collated the necessary information and made an informed recommendation to the Joint Committee.

3.2   Media reports reflected that the Democratic Alliance found Hon. Figlan guilty of sexual harassment and imposed sanctions on him in respect of the matter.

3.3     Notwithstanding same, the Code addresses the conduct of Members in their capacity as Members of Parliament rather than a representatives of a particular political party. There is accordingly no reason why a Member who has undergone a disciplinary process within a her/his party should be exempted from such a process in terms of the Code.

3.4    The allegation against Hon. Figlan can be considered on the following basis:

3.4.1 Chapter 2 of the Constitution, the Supreme Law of South Africa, provides that all persons have rights not to be treated in a degrading way, the right to bodily integrity and the right to human dignity. Sexual harassment constitutes infringement of these rights and a failure on part of a Member to uphold these rights of the alleged victim. The Member has accordingly not upheld the law.

3.5    The Member’s conduct, although at a non-Parliamentary event, is in breach of the Code which demands that Members act at all times in accordance with the public trust placed in them.  A Member who has committed an act of sexual harassment throws into question that trust.

3.5.1 An act of sexual harassment committed by a Member of Parliament (especially one that has been made public) has the effect of eroding public confidence and trust in the integrity of Parliament; and  

3.5.2 Sexual harassment is a form of discrimination. This is a well-established fact in labour law. Accordingly, the Member has failed in his duty to be committed to eradicating this form of discrimination.  

3.6    The Code states in paragraph 2.2 that it cannot prescribe behaviour in hypothetical cases. To this end the code prescribes that “while public interests and just cause cannot be defined in abstract, the Committee must, over time, develop a body of interpretation, and clarification in respect of the individual cases and contemporary values”.

3.7    As such, notwithstanding the fact that sexual harassment is not dealt with specifically in terms of the Code, the complaint falls within the ambit of the Code in so far as Hon. Figlan’s alleged conduct would constitute a breach of sections 4.1.2;  4.1.3; 4.1.4; 4.1.5 and 4.1.6 of the Code.

1. Investigation procedures

 

4.1    Section 10.1.1.3 determines that contravention of clause 4.1 of the Code constitutes a breach of the Code.

4.2    The procedure requires that the Registrar inform the Member concerned within seven days of receiving a complaint.

4.3    The allegations should be put to the Member and a response to the Committee should be requested.

4.4    The Committee should be convened to consider the Member’s response and whether any further action is necessary.  

 

1. Member’s Response to the allegations

 

5.1     In terms of the procedure correspondence was sent to Hon. Figlan firstly on the 22 June 2015, explaining the charge and requesting that he respond to the allegations.

5.2    The Registrar was informed that Hon. Figlan was off sick. The correspondence was sent to the residence of Hon. Figlan after consultation with the DA Chief Whip. Hon. Figlan’s attorney’s responded on his behalf on 01 July 2015. In terms of the procedure a Member may only be represented by another Member.

5.3    The Member’s attorney submitted a response and which in essence questioned the Committee’s authority to consider the complaint but did not respond to the allegations.

5.4     It is noted that in the previous cases the Committee had not accepted correspondence from a Member’s attorney.

5.5     Hon Figlan was informed that he had to respond personally to the allegations   

5.6     Hon. Figlan subsequently sent further correspondence indicating that the response by his attorney Minde Shapiro constitutes his response and that further correspondence be directed to his attorney.

5.7    Further correspondence was received from the Member’s attorney, 13 July 2015 requesting copies of the complaint.

 

1. Recommendation

 

6.1    The Registrar recommended that, as the alleged victim was found, and had agreed to appear before the Committee, that a hearing be held to consider the facts.

6.2    At its meeting of 28 0ctober 2015, the Committee agreed that a Sub-Committee be established to consider the facts. The Sub-Committee was duly constituted with nominations from political parties.

6.3    Hon. Figlan’s attorney submitted correspondence questioning aspects of the procedure and the Committee decision to hold a hearing

6.4    Further correspondence was sent to Mr Figlan explaining the Committee’s procedure.

 

1. Hearing

7.1   A hearing was scheduled for 24 November 2015, however due to changes in the    Parliamentary programme the hearing was postponed to 16 February 2016.

7.2 Hon. Figlan sent correspondence with questions relating to issues related to  jurisdiction and procedure.

7.3 The Registrar informed Hon. Figlan that the matters should be raised at the hearing.

 

1. Summary of Proceedings

 

The Member was charged with sexual harassment and contravention of the following provisions of the Code. The Registrar stated that in terms of paragraph 2.3 of the Code of Ethical Conduct Members have a duty “to create public trust and confidence in the public representatives and to protect the integrity of parliament” She also stated that in terms of section 2.4 of the Code, one of the principles that Members must adhere to is that of leadership and Members must in this regard promote and support ethical conduct by their leadership and example. In terms of section 4 of the Code, she stated that a Member must uphold the law (4.1); must act at all times in accordance with the public trust placed on them (4.1.3); maintain public confidence and trust in the integrity of parliament and thereby engender the respect and confidence that society needs to have in parliament as a representative institution (4.1.5); that in performance of their duties and responsibilities, they must be committed to the eradication of all forms discrimination (4.1.6)  

 

1.  Summary of Evidence of the only witness

The witness informed the Subcommittee that she worked for the Democratic Alliance. She indicated that they were organizing a picket around the State of the Nation Address, on Thursday, 12 February 2015, when later in the afternoon she was called by a colleague informing her that she was being called by the Member. She further indicated that the Member later came in person, touched her from behind and asked her why she did not come. The witness, furthermore, indicated that she told the Member that she was busy. The witness informed the subcommittee that the Member grabbed her hand and forced her to touch him inappropriately. The witness added that she told the Member not to do that and the Member asked why not and walked away.

The Chairperson of the Subcommittee asked the witness whether anything transpired later on. The witness replied that she reported the incident to her manager immediately and the following Monday laid a complaint with to Hon. J Selfe. The witness in conclusion indicated that there was a disciplinary hearing and the Member was found guilty.

The hearing adjourned.

The proceedings resumed on 01 March 2016 to consider the facts and the Member was found guilty.

The Registrar recommended that the Member be fined 30 days salary and suspension of privileges for 15 days.

Agreed to.

Hon. Dreyer dissented and registered her concern on the lack of consistency regarding the penalty.

 

1. Report of the Subcommittee

 

The Joint Committee recommends that Hon. Figlan be found guilty of contravening sections 2.4; 4.1; 4.1.3; 4.1.5; and 4.1.6 of the Code of Ethical Conduct and Disclosure of Member’s Interests. Further, that the Hon. Member be fined 30 days salary and suspension of privileges for 15 days.

 

 

 

A Masondo, MP                                                                         A Singh, MP

Co-Chairperson                                                                         Co-Chairperson