Ad Hoc Committee: President's Submission in response to Public Protector's Report: Election of Chairperson; Schedule; Agenda

Meeting report

Election of Chairperson
Mr S Tshabalala, Section Manager, Committee Section, Parliament, introduced himself, and noted that he was representing the Secretary for Parliament in terms of Rule 131, to facilitate the election of the Committee Chair.

He read into the record ATC 45 of 2014, dated 9 April, noting that Mr Max Sisulu, Speaker of Parliament, had established this Committee to consider the President's submission in response to the Public Protector's report No 21/2013-14, and referred also to Proclamation R59 of 2013, and to the copy of the Public Protector’s report

The notice set out that the Speaker had decided to appoint an ad hoc Committee to consider the response and make recommendations. Powers would be exercised in terms of Rule 139. He summarised the composition of the Committee. The Committee was to report no later than 30 April. The notice would be tabled for ratification in the National Assembly.

He then proceeded to read out ATC No 48, dated 22 April 2014, in which the nominations of names to serve on the Committee were recorded.

He invited nominations for the Chairperson.

Ms D Dlakude (ANC) nominated Mr Cedric Frolick (ANC) to serve as Chairperson of the Committee.

Mr M Manamela (ANC) seconded that nomination.

Mr Frolick indicated that he accepted the nomination.

No other nominations were made and thus Mr Frolick was declared as chairperson and assumed the Chair. He thanked Members of the Committee for their confidence in him to perform the task. He was particularly appreciative of their parties being prepared to nominate members, given that all parties were in the last phase of preparation for elections and thanked the members for their willingness to participate. He noted that the work of the Committee was guided by the Speaker’s notification of appointment of the Committee.

Addition of ACDP to Committee
Dr C Mulder (FF+) noted that he was nominated to represent the smaller parties, and wished to address the Chairperson on a point of order. The instructions from the Speaker were that the Committee should consist of twelve members but there were only eleven present, because COPE had indicated that it would not be taking up the opportunity to make a nomination. He had written to the Speaker, to ask whether the nine parties that he was representing in this Committee would be entitled to then include another member. Mr S Swart, from the ACDP, had indicated that he would be willing to serve and he requested that this be made possible. He pointed out that it would not affect the representation or proportional ranking of the ANC majority, but would ensure that the Committee was constituted with a full number of members.

Mr S Swart (ACDP) thanked the Committee for consideration of the request. He asked the Chairperson, in the alternative, to consider Rule 134, which allowed for the Chairperson to co-opt any other National Assembly Member to act as member of the Committee at any meeting. He believed he could bring legal experience and expertise to the committee.

Mr J Selfe (DA) noted that his party would support the co-option of Mr Swart.

Mr Manamela noted that the allocation of parties to serve on committees was a different and separate process, which had to do with proportional representation, so it was not automatic that if COPE refused to participate it was possible to simply replace the position with another party. COPE had initially proposed the formation of an ad hoc committee, had congratulated the Speaker, but then indicated that it would not be participating. He reiterated that whatever its reason, it was not automatic that the COPE seat would fall to another party. The ANC believed that whether or not COPE participated was immaterial, but the vacancy would not necessarily warrant the co-option of a member, particularly from the ACDP, to participate.

Ms J Moloi-Moropa (ANC) suggested that the Chairperson discuss this with the Speaker to ensure that there was no upsetting of the balance of proportional representation.

Mr C Burgess (ANC) said that he was not sure whether COPE had officially notified the Committee that it did not intend to participate; the information appeared to have been conveyed via the media. He said that Members needed to be clear on who must decide upon the request.

Mr N Singh (IFP) thought the prerogative to take that decision lay with the Chairperson of the Committee, who may “co-opt any other NA member”. His party agreed that it would be desirable and supported Mr Swart.

Ms L Mazibuko (DA) agreed that the co-option was within the power of the Chairperson. She said it was obvious that Mr Swart would add expertise and a wealth of experience to the deliberations, and she believed that there was much to be gained from including him. Not only was it desirable to have a full Committee but Mr Swart's expertise could only benefit the Committee, so she too would urge that this be done.

Dr Mulder responded to Mr Manamela’s that he had, in line with his responsibility as representative of other parties, consulted with all of them, but the only party that indicated its interest in participating was the ACDP. COPE had made its position known in the press, but it was notable that although it was at liberty to nominate a representative, it had chosen not to do so. He was not asking for a decision now, but asked that the Chairperson apply his mind to the request.

The Chairperson confirmed that he would do so. In the meantime, he invited Mr Swart to participate in deliberations, but noted that at this stage he would not have a vote.

Consideration and adoption of draft Committee programme
The Chairperson asked the parties to comment and give input on the draft programme. He noted that the draft was being distributed as he spoke.

Mr Singh said that nowhere in the programme was there an indication that this Committee would be inviting anyone to give evidence. The IFP would have liked the President to attend, to explain and expand on why he thought it was necessary to wait for the Special Investigating Unit (SIU) report. Secondly the IFP thought that the SIU should be asked to explain its processes, because the letter from the President did not set out any time frames by when the SIU was likely to deal with the matter.

He also questioned whether the Committee would be able to give adequate attention to the matter by 30 April, and what would happen to the Report if completed on that date, and requested input from the Parliamentary Legal Advisors on that point. Finally, he wanted clarity on the terms of reference, which were set out by the Speaker, but felt there were some grey areas, and he would like the Parliamentary legal advisers to take Members through the points.

Mr Selfe agreed that this Committee needed to hear submissions and believed that, amongst others, the Public Protector herself should be invited to attend. According to a report in City Press, on 31 March, she was willing to address Parliament on her report. In view of the many unanswered questions contained in her report, he believed it would be beneficial for this Committee to get her testimony, as well as that of others referred to in the report.

He noted that there was also a submission for the Council for the Advancement of the South African Constitution (CASAC) and wondered whether other submissions had been made. At the very least, he believed that it should be given the opportunity to speak to that submission.

He also pointed out that the agenda referred to "deliberations on the President's response to the Public Protector’s report", but that did not appear to be the terms of reference, for the Committee was asked to look at "the submissions in response… " and this was wider than the response alone, for together with that response, the President had submitted the Government Gazette with the Proclamation for the SIU, and the Public Protector's report. He felt it appropriate to look at the submissions (plural) made to Parliament, which the Speaker had quite correctly referred to this Committee.

Mr Swart said he was largely in agreement with the previous speakers, particularly with the need for clarity on the terms of reference, and with suggestions that the President and SIU may be asked to appear. He was concerned that today's programme indicated only the technical aspects were being dealt with, and that the Committee was not due to meet on the following day. He hoped that it would be possible to find additional days to meet, unless an extension was to be obtained. The Committee was under huge pressure of time, and it would be necessary to look at the programme carefully once there was a clear understanding of the mandate.

Ms Moloi-Moropa expressed the opinion that the programme was reasonable and suggested that it could be adopted, because it did accommodate the dates of the Speaker’s announcement. She noted Mr Swart’s and Mr Selfe’s suggestions, agreed that all documents would be required, but, since those were substantial, suggested that Committee Members needed time both tomorrow and over the weekend to study all the documentation for themselves. She would be reluctant to make any decision whether anyone was to be called before reading all documents. She reiterated that she found the programme reasonable for the moment; if there were other requests to be made later, then they could be considered at the appropriate time.

Ms Dlakude agreed and said that the Committee should focus on its mandate, not go beyond that. It was necessary to ensure that the Committee was not following "an agenda set by the media" and she wanted it to address what was before it at this point.

Ms Mazibuko noted that every piece of correspondence made reference to the Speaker's terms of reference and she agreed that this referred to the three items – the President’s response, the proclamation and the Public Protector’s report. The Committee had been asked to consider “submissions” in the plural. She said that this made it clear that the Committee was moving along with the Speaker’s mandate, not one set by the media. It was not only the President’s response to which the Speaker had referred. She agreed that it was necessary to consider the Public Protector’s report in full and did not believe that there was any debate on this point. The Committee did need to work on and thoroughly scrutinize all three documents before reporting to the House.

Given that mandate, she believed that more time was needed. The circumstances in the lead up to this Committee, where the ANC had nominated only at the last minute, regretfully meant that little time was afforded to deal with the matter. She suggested, however, that it was possible for this Committee to work on the following day, and if necessary over the weekend, as well as the public holiday of Monday. She argued that not sufficient time was given in the current programme. She would have no qualms if the Members were given several hours, or even overnight, to study the documentation as the process must not be unduly rushed and full justice must be given to the matters. However, she did not think that it would be unreasonable if the Committee were to meet on the following day. The ATC announcing the formation of the Committee was published already on 9 April, documents were in the public domain, and MPs knew what documents (emphasizing the plural) would need to be studied. However, she did concede that perhaps the Members now nominated had not studied them because they had not known of their nomination at that time. She repeated that sufficient time, which she thought was overnight, should be allowed to study them and all three must be considered.

Mr Manamela said that the reference to the programme being dictated by the media stemmed from the City Press article with the Public Protector’s statement that she was willing to address Parliament, and in which reference to the CASAC submission was also made. Members were aware of the documents that were to be referred to this Committee, but he stressed that these were voluminous, particularly the Public Protector’s report. He had not yet decided, himself, whether it would be necessary to subpoena the Public Protector. Mr Selfe said that there were unanswered questions, but he was not sure whether he agreed with that comment yet. It would be important for Members to study and familiarize themselves with all the documents referred to by the Speaker and decide whether what was contained in those was sufficient to make a determination. The ANC Members had been notified only a day or two earlier of their nomination, and most had not gone through the documents in detail.

He also reminded everyone that the parties were engaged in an election campaign and the reference, by Ms Mazibuko, to the “normal working day” of Friday did not necessarily apply as it would in the normal course. She may have been in Cape Town, but others had been out in other areas attending to electioneering, and that point had to be taken into consideration. There was a need to balance the election campaign and this work, a difficult balance to achieve. Members must appreciate that electioneering activities had been set aside for this programme.

The ANC was unable, without going through all the documents, to assess whether the time allocated by the Speaker, until 30 April, would be sufficient. He strongly suggested that Members needed time to go through all the documents on the following day and only when the Committee met again on Monday would they be able to take matters forward.

Dr Mulder did not agree that electioneering and this programme conflicted. This Committee was about the integrity of Parliament and constitutionality, which he thought should take precedence. There was a deadline set of 30 April, and a request to extend that deadline. He submitted that that not a single person around this table could not be aware of the content of the documents. He agreed that there may be some technical points and some detail still to be studied. The programme had not emanated from this Committee; it was merely a proposal and it was for the Committee to decide whether to adopt it, and to do so, it would have to apply its mind, not only consider the deadline. Members must decide for themselves what would be reasonable. He commented that Mr Burgess had made the point that Members should not take into account what had been reported in the media, and taking that point further, it seemed then logical that the SIU should be asked to report when its investigations would be completed. He thought that witnesses should not be subpoenaed, but the Office of the Public Protector and others should be allowed to appear voluntarily before the Committee. He said that clarity was needed on what the members needed to do - and for that the relevant people would have to be asked for their positions -before setting the programme.

Mr Burgess said that he was disturbed by Dr Mulder's intimation that election campaigning was irrelevant to the members - it was, instead, a very serious business and he was sitting here as a politician, not as a lawyer. He had some serious concerns about the documents. He had been notified only yesterday, or perhaps the previous day, that he was to be a member of the Committee, not several weeks back. For his own reasons, he had not read the report of the Public Protector. Now that he was a member, he would, in order to participate effectively, have to read everything, and he was not able to do this before the following day. It seemed from some of the comments that this might turn into an inquiry, but he pleaded for time to decide on that point himself after reading the documents.

Dr W James (DA, Alt) said that the constitutional and parliamentary obligations were clear, and agreed that this Committee needed to consider the letter from the President, the proclamation and the Public Protector's report, as they were all core to the functions of the Committee. He agreed that there was a need to read them, and whilst he could not dictate the speed with which they must read, he had thought that between now and the following day would have been sufficient. Given the urgency of the matter, the depth of the work and the balance between exercising these constitutional duties and campaigning, it was important to do this properly. He suggested that time be given until the following day, that the Committee meet also on the following day and then on every other day. The Committee should start early and be prepared to work late. Setting a time from 2pm to 6pm on Monday seemed to be arbitrary and inadequate.

Mr J Sibanyoni (ANC, Alt) aligned himself with the views expressed by his ANC colleagues that the programme appeared reasonable, taking into consideration the voluminous documents. He moved that the draft programme be adopted, that the Committee not sit on the following day, but that the other days be accepted for the purposes of moving diligently through the programme.

Ms Dlakude agreed with her colleagues that time was needed to scrutinise the reports so that members could fully understood the matters. She too requested a chance to read them, and said there was “no rush” and that the Committee could meet on Monday. She thought the request for an extension of the day premature, as this was only the first meeting of the Committee, and that request could be made if necessary after reading the documents.

Dr Mulder thought that the requests to study the documents were fair. However, if time was given now to that, he suggested that it would then seem fair to extend the deadline beyond 30 April. If not, the Committee would be forced to deal with matters in a very tight time-frame. He asked if the ANC would agree that an extension could be sought

Ms Mazibuko supported Dr Mulder on that proposal. She thought that the agenda was inadequate as it stood, and would be opposed to adopting it. Quite apart from the time set, she pointed out that the programme referred only to “deliberation on the President’s response” and reiterated that the Committee needed to consider all three documents set out earlier. She suggested that the meeting should convene early on Monday, that full days must be devoted to working on those documents, and would like to get an agreement from the ANC that it would not be opposed to seeking an extension if necessary to the deadline.

The Chairperson said that this was merely a draft programme and wanted to stress that it had been drawn by the Committee section. He suggested that the officials should clarify how they had done so.

Mr Tshabalala said that the programme was drawn by the Committee Section, working backwards from the known deadline date of 30 April. He said that the meeting for Monday had been set for 2pm, because of the unveiling of the bust of the late President Mandela in the morning. He further said that no documents had yet been circulated to Committee Members because it was up to Members to decide, at this meeting, what work needed to be done.

Mr Swart appreciated that the majority party had a problem with the timing, but pointed out that whilst he was not blaming any individual Member, the party had taken almost the full ten days to attend to the nomination, and that must be acknowledged.

The Chairperson corrected him, saying that in fact the names were submitted after seven or eight days, so the ANC had complied with the rules of Parliament. It was important that documents be made available by the Committee Section immediately to enable members to prepare. He also asked Members to be sensitive to the fact that celebration of Freedom Day, 20 years into democracy, was very important and it was important to be mindful of the importance and significance of the date.

Mr Manamela agreed that the meeting should start on Monday, and suggested that it commence immediately after the unveiling of the statue. He repeated that the ANC could not make any final submissions as to what should be deliberated on each day, before taking into consideration the content of the Public Protector’s report. For this reason, the ANC also could not indicate at this stage whether it would be prepared to support a request for extension of time for the Committee. He suggested that discussion on the agenda items had to stand over until after Monday.

Mr Singh agreed with not making a decision now on the agenda items, thought the dates could be confirmed, and that the possibility of an extension could be discussed again on Monday.

Ms Mazibuko said she would be happy to clarify the agenda items again in the following week. She still argued that Members should meet in the morning, possibly adjourn to attend the unveiling of the bust, and then return. She reiterated that starting at 2pm would shave off more than half the day.

The Chairperson said that the unveiling was between 10 am and 12 pm and there was a series of activities. He suggested that perhaps, instead of meeting at 2 pm, the meeting should start at 12 pm, and that the Committee could work until late in the evening. He agreed that the agenda items would stand over for consideration later. In the meantime, he would engage with Parliamentary Legal Services, on the mandate and terms of reference, as requested earlier in the meeting, and consider the request for Mr Swart’s formal participation on the Committee. He would also check, with the Office of the Speaker, whether the submission of CASAC had been formally submitted, and that submission would also be distributed to all Members if this was the case, so that a complete set of documentation in line with all discussions was made available.

On the question as to what would happen to the Committee’s Report, he explained that this Committee would cease to exist after 30 April and its report would be sent to the Speaker for publication in the ATC, for further consideration of how then to proceed. This Committee must not only examine the documents, but come up with recommendations. Parliament had a responsibility to be thorough and consider all the relevant detail and come up with clear recommendations on its discussions. On Monday, all political parties must be ready to interact with proposals.

Dr Mulder said that he had heard Mr Tshabalala saying that the Committee Section had not distributed any documents, and asked that the Committee agree, now, what documentation would be provided to Members and tabled to the Committee.

Mr Manamela added that Members would need to take a decision whether to consider every submission made to the Chairperson or the Office of the Speaker. It could add to the work of the Committee, and he asked if Members wanted to consider documents other than any referred to in the ATC, by the Speaker.

Ms Mazibuko agreed with the need for clarity. She proposed that, in line with the Speaker’s terms of reference, all Members must get the Presidents response, the SIU proclamation and the full report of the Public Protector, as well as any written submissions. She heard Mr Manamela's comments , but thought it would be “callous and a dereliction of duty” were Parliament not to consider public submissions. It was a constitutional right of the public to engage with the Committee. Any public submissions received by this Committee should be formally tabled, and she asked that all Members commit to reading and studying the content of those documents by the time that the meeting was set to resume on Monday.

The Chairperson said that at the moment, he was only aware of a submission by CASAC, but would check with the Office of the Speaker. If any other submissions were received, he would also obtain and table those to Members, who would need to consider whether they wished to call in any parties, after looking at the content of their submissions. There was no obligation to do so.

The meeting was adjourned until Monday 28 April, at 12:00pm.