House Resolution re-establishing the Ad Hoc Committee: informal discussions on its impact

Meeting report

Introduction
The Chairperson referred to the National Assembly's Resolution of 17 March 2011 which had re-established the Ad Hoc Committee on the Commission for Gender Equality Forensic Investigation with the same membership and terms of reference but which at the same time had revoked previous permission to continue and had deemed its meetings and work from 29 January to 01 March 2011 ultra vires, since the Ad Hoc Committee had ceased to exist since it had not submitted its report by 28 January 2011. The Ad Hoc Committee was to incorporate in its report its work prior to 29 January 2011 and report to the National Assembly by 24 June 2011.

Informal discussion
National Assembly's Resolution of 17 March 2011 re-establishing the Ad Hoc Committee
Mr Mukesh Vassen, Parliamentary Legal Adviser, said that the work of the Ad Hoc Committee, up to 28 January 2011, was deemed valid. However, the meeting held on 31 January 2011, at which the National Treasury, the Office of the Auditor-General, and the Office of the Public Protector, had been present, was not valid, since, officially, the Ad Hoc Committee did not exist on that date.

Mr Vassen suggested obtaining new written submissions from the National Treasury, the Office of the Auditor-General, and the Office of the Public Protector, since much of what the Auditor-General and the Public Protector had said on 31 January 2011 was merely reiteration.

Mr Vassen also offered the possibility of calling the National Treasury, the Office of the Auditor-General, and the Office of the Public Protector again, or excising what they submitted on 31 January 2011 from the Ad Hoc Committee's report, still in draft form, of which copies were given out to Members only.

The Chairperson thought that since Members had already heard from the National Treasury, the Office of the Auditor-General, and the Office of the Public Protector, there was no need to invite them again. The Ad Hoc Committee's work until 28 January 2011 was valid.

Mr Vassen said that, according the Rules, the Ad Hoc Committee officially lapsed on 29 January 2011. What was valid was its work only until 28 January 2011.

Adv S Holomisa (ANC) said that this resolution did not make sense.

Mr Vassen explained the reasoning behind it. He thought that the Ad Hoc Committee had “just lost one meeting”, and that many of the submissions had not added much value.

The Chairperson suggested that, in essence, the Ad Hoc Committee could take the submissions “since they are there” and that “we don't start afresh”.

Ms B Dlulane (ANC) was worried that the Resolution of 17 March 2011 would mean that the Ad Hoc Committee would have an empty report.

Mr Vassen said that, on the basis of a discussion with the House Chair, the existing draft report could be tabled again, but that the Ad Hoc Committee must exclude everything from page 6 onwards. This would include the National Treasury, the Office of the Auditor-General, and the Office of the Public Protector's progress reports of 31 January 2011.

Adv Holomisa said that if Members pretended that the 31 January 2011 and subsequent meetings did not happen it would be a lie.

Mr Vassen had approached the House Chair with that very opinion. However, the House Chair had refused to entertain that opinion.

Mr Vassen said that the House Chair had advised inviting the National Treasury, the Office of the Auditor-General, and the Office of the Public Protector again or asking them to resubmit written submissions.

Ms S Rwexana (COPE) said that the Ad Hoc Committee had understood that it had been granted an extension and had therefore continued its work.

Mr Vassen explained the ruling further.

Ms Dlulane inferred that Members were faced with a resolution, perhaps with loopholes, that was, however, binding.

Mr Vassen said that, as painful as it was, the resolution was binding.

The Chairperson saw a dilemma in that Members had to abide by the resolution but the bulk of the work was done after 28 January 2011.

Mr G Snell (ANC) asked if there was anything wrong with Members of Parliament having “an informal meeting”.

Adv Holomisa did not think that Members could say that they were meeting informally.

Adv Holomisa thought that the Ad Hoc Committee should report on what it had done.

Ms Dlulane asked why Members were present if their work since 28 January 2011 was not to be recognised. She agreed with Adv Holomisa, but felt that the Ad Hoc Committee must abide by the resolution, even though it disadvantaged the Ad Hoc Committee. If the Ad Hoc Committee could not report on that meeting, she was at a loss to know why the Ad Hoc Committee was meeting. She appealed to the legal experts fro guidance. Members could write everything down, but what meaning would that have?

Mr Vassen advised that Members could appeal to the House Chair and inform him that they had put in a great deal of effort and ask him if that could be taken into account.

Adv Holomisa asked if the National Assembly could not “condone” the Ad Hoc Committee's work since 28 January 2011.

Mr Vassen replied that the National Assembly would not sit for some time. He suggested asking the National Treasury, the Office of the Auditor-General, and the Office of the Public Protector to submit written reports confirming what they had already said and submitted.

Adv Princess Nonkosi Cetywayo, Office of the Speaker, proposed that the draft report prepared by the Ad Hoc Committee's secretariat on the Ad Hoc Committee's work until 28 January 2011 be presented to the re-established Ad Hoc Committee to overcome the technicality.

Ms Dlulane was not satisfied.

Adv Holomisa thought it would be futile to call National Treasury, the Office of the Auditor-General, and the Office of the Public Protector to repeat what they had said already and asked why Members could not just report on what had happened. “I am lost.”

Mr Vassen recommended caution, in view of possible litigation of Ms Nomboniso Gasa (Ms Gasa), the former chairperson of the Commission for Gender Equality (CGE), against the Ad Hoc Committee.

Mr Vassen therefore stated that the Ad Hoc Committee had three choices.

The first option was to excise all reference to meetings from 29 January to 01 March 2011.

The second option was to ask for a resolution of the National Assembly to condone the Ad Hoc Committee's work from 29 January to 01 March 2011 and to incorporate its work done in that period.

The third option, Mr Vassen said, was fro the Ad Hoc Committee to call upon the National Treasury, the Office of the Auditor-General, and the Office of the Public Protector again.

Mr Snell asked if anyone had analysed pages 6-8 of the draft report.

Mr Vassen said that the contents of pages 6-8 were not a problem. The issue was to get the National Assembly to pass the resolution.

Adv Cetywayo advised that if the Ad Hoc Committee wished to include reference to the National Treasury, the Office of the Auditor-General, and the Office of the Public Protector's submissions of 31 January 2011 it would have to seek condonement of the work, since, otherwise, the National Treasury, the Office of the Auditor-General, and the Office of the Public Protector's visits to the Ad Hoc Committee could be seen as fruitless and wasteful expenditure. Such condonement could be given only by the National Assembly but it would not sit for some time.

Ms Dlulane wondered who had advised the Secretary of Parliament. She suggested sitting with such advisors in order to project a good reflection of what the good work that the Ad Hoc Committee had accomplished.

The Chairperson said that Members must agree on one of the options.

Adv Cetywayo said that it was a technical matter for lawyers.

The Chairperson said that, nonetheless, this technical matter was what informed those involved in the resolution.

Adv Holomisa insisted on reporting what the Ad Hoc Committee had actually done, and proposed sending a memorandum to the Speaker to the effect that the National Treasury, the Office of the Auditor-General, and the Office of the Public Protector had visited the Ad Hoc Committee on 29 January 2011 at the state's expense and requesting a condonement of the Ad Hoc Committee's work. This would further protect the Ad Hoc Committee against those who would seek for grounds to challenge the Ad Hoc Committee's report.

The Chairperson understood that the next meeting of the National Assembly would be on 12 April 2011.

Ms Dlulane said that a resolution must be sought.

Mr Vassen said that the legal staff had no influence. It was for Members of Parliament to request and pass the resolution.

The Chairperson said that Members were merely asking Mr Vassen to assist them in preparing the request for the resolution.

Ms Dlulane said that Members merely wanted the Ad Hoc Committee to be enabled to fulfil its mandate.

Letter from Ms Gasa's lawyers
Mr Vassen reported that Ms Gasa's lawyers had written to the Speaker to say that she deserved the right to be heard and that the Ad Hoc Committee could not complete its work until it had given her a hearing. The Speaker had refused. Ms Gasa's lawyers had now written to the Chairperson of the Ad Hoc Committee and threatened an interdict.

The Chairperson said that the Ad Hoc Committee's mandate was specific.

Members agreed that their view remained unchanged that to offer Ms Gasa such an opportunity as requested by the lawyers would not be appropriate because certain matters concerning Ms Gasa were still sub judice and Ms Gasa as an individual was not within the Ad Hoc Committee's mandate.

Possibility of requesting the Office of the Public Protector to offer Ms Gasa a second chance to respond
Adv Holomisa said that he had raised the idea, it having been established at length that Ms Gasa did respond to the Auditor-General, that the Ad Hoc Committee include in its report a request to the Office of the Public Protector to give her a second opportunity to respond. It might be better to ask this body to give her a second chance to respond rather than ask her to appear before the Ad Hoc Committee, on account of the sub judice rule.

Mr Snell feared opening up the risk of being accused of interfering in the independence of Chapter 7 institutions.

Mr Vassen also feared constitutional problems, exceeding the Ad Hoc Committee's mandate, and setting a new precedent.

The Chairperson hoped that Mr Vassen could find a way to protect the Ad Hoc Committee. She suggested that the sub judice matter concerning Ms Gasa and her having a hearing were two separate issues.

Adv Holomisa read paragraphs 4.4 and 4.7 of the Ad Hoc Committee's draft report.

Adv Cetywayo suggested some rephrasing to avoid getting into the merits of the case. She acknowledged that the Ad Hoc Committee wished to be cautious.

Mr Snell cautioned against such rephrasing.

Mr Vassen said that the recommendations of the Office of the Auditor-General, and the Office of the Public Protector were very structural. He feared that any such rephrasing would lead to the Ad Hoc Committee's move into the merits of the case.

Ms Dlulane could not understand why Members were discussing this subject.

The Chairperson outlined her understanding, as someone who was not a legal expert, of the discussion. The Ad Hoc Committee had the option to ask the National Assembly to condone the Ad Hoc Committee's work from 29 January to 01 March 2011. She did not want the Ad Hoc Committee to act outside its mandate. The Ad Hoc Committee's response to the letter from Ms Gasa's lawyers remained the same.

Adv Holomisa, in the light of these considerations, proposed leaving matters as they were, without asking the Office of the Public Protector to offer Ms Gasa a second chance to respond. He now took this view even without taking into account Ms Gasa's lawyers' latest letter. What had been done by the Office of the Auditor-General and the Office of the Public Protector was enough.

Members agreed.

The Chairperson hoped that a new resolution from the National Assembly could be obtained soon, and adjourned the meeting.

[Five Members of the African National Congress were present, one Member of the Congress of the People, and one Member of the Independent Democrats.]
 
Appendix
List of meetings held to date [from PMG website]

9 Nov 2010 Election of the Chairperson

24 Nov 2010 Public Protector and Office of the Auditor-General on their investigative reports on the functioning of the Commission on Gender Equality: briefing

25 Jan 2011 Litigation between Commission & its former chairperson and other litigation cases; Findings & recommendations of Public Protector and Auditor-General; Committee programme

26 Jan 2011 Commission on Gender Equality: progress report – briefing [PMG did not attend, because not notified]

Meetings held ultra vires
31 Jan 2011 National Treasury on the CGE's legislative framework, accountability structure & internal control environment ; Office of the Auditor-General of South Africa & Public Protector on the impact and efficacy of the progress reported by the CGE

8 Feb 2011 Ad Hoc CGE: Committee report: deliberations; Committees programme

15 Feb 2011 Ad Hoc CGE: further deliberations on draft Committee Report

22 Feb 2011 Ad Hoc CGE: Committee Report on the Commission for Gender Equality Forensic Investigation

01 Mar 2011 Ad Hoc CGE: Deliberations and finalisation of the Ad Hoc Commission on Gender Equality Committee's report