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Parliament has noted media reports suggesting that the Speaker is protecting or shielding certain witnesses - namely Mr Paul O’Sullivan and Mr Brian Mogotsi - from appearing before the Ad Hoc Committee established to investigate allegations made by the South African Police Service’s KwaZulu-Natal Provincial Commissioner, Lieutenant General Nhlanhla Mkhwanazi.

These assertions are incorrect and mischaracterise both the Speaker’s role and the legal basis upon which the decisions in question were taken.

The Speaker’s decisions in respect of both witnesses were made after careful and considered assessment of the Committee’s requests. These are not decisions that can be taken arbitrarily. They are firmly grounded in the constitutional and legal framework governing Parliament’s powers, including the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, the Rules of the National Assembly, and the established principle that Parliament must act lawfully and rationally to avoid exposing its processes to unnecessary judicial review.

With regard to Mr O’Sullivan, the records before the Speaker indicate that he has not refused to appear before the Committee. Instead, he formally applied to testify virtually, as expressly permitted by the Committee’s own Terms of Reference. These Terms allow a witness who has compelling grounds not to appear physically to apply to testify via a virtual platform.

Mr O’Sullivan’s application was based on the fact that he is currently outside the Republic and has raised concerns relating to his personal safety. In addition, he offered to testify from a South African embassy abroad, subject to the condition that the specific embassy not be publicly disclosed for security reasons.

The difficulty with the Committee’s request to summon Mr O’Sullivan is that the correspondence and records submitted to the Speaker do not demonstrate that the Committee substantively engaged with or applied its mind to the reasons he advanced when declining his request for a virtual appearance. There is no indication, on the record, that the Committee considered whether his circumstances amounted to “exceptional circumstances” under its own Terms of Reference, or to “sufficient cause” as contemplated in law.

In terms of the Powers and Privileges Act, a summons may only be lawfully issued where a witness has failed or refused to appear without sufficient cause. On the information placed before the Speaker, that legal threshold has not been demonstrated. Proceeding with a summons in these circumstances could materially weaken Parliament’s position should the matter be challenged in court.

It is also important to place on record that Mr O’Sullivan has cooperated with the Committee by engaging with its Evidence Leaders virtually and by submitting a written statement.

Similarly, in the case of Mr Mogotsi, the records before the Speaker do not demonstrate that the Committee substantively engaged with the personal security concerns he raised in relation to his physical appearance before the Committee.

Mr Mogotsi has indicated his willingness to cooperate and has participated in virtual consultations with the Evidence Leaders. His request was that appropriate security measures be considered, given the nature and sensitivity of the evidence he intends to present.

In the absence of proof that the Committee properly applied its mind to these concerns - including whether any threat or risk assessment was conducted, and whether the security measures proposed were reasonable - the Speaker could not be satisfied that a refusal to appear without sufficient cause had been established.

The Speaker has therefore requested that the Committee properly engage with the reasons advanced by both witnesses and demonstrate, through its minutes and formal resolutions, how those concerns were considered and addressed.

In the case of Mr O’Sullivan, this includes showing that:

- His application to appear virtually was formally tabled;

- Members considered his reasons, including his location abroad and security concerns;

- The Committee applied its mind to whether these constituted exceptional circumstances or sufficient cause;

- Alternatives proposed by the witness, including testifying virtually or from a South African embassy, were considered; and

- A reasoned and legally justifiable decision was reached and properly recorded.

In the case of Mr Mogotsi, the Speaker similarly requires evidence that:

- His security concerns were formally tabled and considered;

- The nature and credibility of the risks he raised were assessed;

- The reasonableness of proposed security measures was evaluated;

- Any threat or risk assessment was considered; and

- A reasoned conclusion, supported by the record, was reached as to why his concerns did not justify accommodation.

The issuing of a summons is a serious legal measure and must remain an act of last resort. It cannot be invoked lightly or without meeting the strict legal requirements set out in law. To do so without satisfying these requirements risks undermining the credibility of Parliament’s processes and exposing them to avoidable judicial review.

The Speaker’s actions do not protect individuals from accountability; they protect the integrity, lawfulness, and credibility of Parliament and its committees.

Issued by Parliament