Public Protector Report No 13/2013: Parliamentary Legal Adviser's opinion and debate

Meeting report

Public Protector Report No 13/2013
The Chairperson noted that at the last meeting, certain information had been requested. Adv Pansy Tlaluka, Chairperson of the Independent Electoral Commission (IEC) had been requested, in pursuance of the audi alteram partem rule, to give a written submission, and an opinion had been requested from the Parliamentary Legal Advisers. He checked with all Members whether they had now received an electronic or hard copy.

Members confirmed that they had receved the opinion and had read it.

The Chairperson said that he had requested the presence of the Parliamentary Legal Advisers. However, Mr N Vanara, who had participate in the drafting, had requested to be excused, due to a bereavement in the family, which required him to travel to the Eastern Cape. Ms Ngcobozi was present.

Parliamentary Legal Advisers briefing
Ms Vuyokazi Ngcobozi, Parliamentary Legal Adviser, said that she would briefly summarised the detailed opinion provided to the Members. The request for the opinion raised four legal questions, and she noted that the Advisers had also taken into consideration other documentation forwarded, including the letters from the Public Protector.

The first question was whether, in terms of section 27 of the Electoral Act, the Electoral Court could consider a matter if the commissioner was not a commissioner or Chairperson of the IEC at the time of the incident under investigation. Firstly, she read out the relevant sections of that Act, noting that the Electoral Court could investigate “any matter….by a member of the commission, and make any recommendation”.  Its jurisdiction appeared to be limited to a commissioner. That led on to the issue of who a commissioner would be. Section 6 of the Act spoke to the appointment of commissioners and said that the Chief Electoral Officer (CEO) was not one of the commissioners. Furthermore, section 12(1) said that the CEO was appointed by the commissioners, after the composition of the IEC, and appointed as an employee of the IEC. The Legal Advisers concluded, in answer to the first question, that the Electoral Court did not have jurisdiction to look into the conduct of the CEO. It was noted that the CEO at that time was currently Chairperson of the IEC.

The second question was whether this ad hoc Committee was authorised to implement recommendations of the Public Protector (PP) or if it had any authority to question the findings in the PP’s report. In relation to the authority of the Committee, the Legal Advisers had looked into the Resolution of the House that created this Committee. That said specifically (as set out in the Order Paper) that the House establishes an ad hoc Committee to “consider and report on the recommendations in the PP report, in so far as they related to the mandate, and also to consider the request of the PP that the report be referred to the Electoral Court”

Dealing with the mandate to look into the “recommendations”, Ms Ngcobazi noted that the first challenge was that no “recommendations” as such were set out in the Report. For instance, although the PP’s report mentioned what the House should do, there was no specific section setting out the recommendations so these would have to be gleaned by implication from the remainder of the narrative. For the purposes of taking the matter further, the Legal Advisers had assumed that the legal actions suggested were to be regarded as recommendations.

Dealing with the question of the “mandate”, she said that any public body, including Parliament, had to exercise functions in line with the powers legally conferred Section 1(3) of the Constitution spoke of the supremacy of the Constitution, and thus the ad hoc Committee would have to exercise its mandate in line with the resolution – to look into the report and the letters of the PP. She would revert to this point later.

On the question of whether the Committee had the mandate to question the findings, the answer lay in the Rule of Law principles, because this was not specified. However, it would depend on what meaning was given to the word “consider”. This was linked with the question of the responsibility of the ad hoc Committee. She would speak to the requests that had been forwarded by the PP. The first letter from the PP indicated that she was requesting the “Speaker”, in consultation with the IEC (but excluding the current Chair) to decide whether action should be taken on the undisclosed and un-managed conflict of interest, and then advise the President of actions to take. This was listed under the heading of “remedial actions”.

Ms Ngcobozi said that the first challenge in that regard was that the PP was not actually authorised to tell the Speaker, or Parliament, how to process the PP reports. The PP was saying that the Speaker “must consult”. She could not dictate how Parliament must conduct its Parliamentary business. The phrase “consider whether action should be taken” gave no clarity as to what precise actions were contemplated. If, for instance, the PP was suggesting that the Chairperson of the IEC needed to be removed, there was a completely different process that had to be followed, and this would have to be done in terms of the IEC Act. The Electoral Court would have to recommend to the National Assembly (NA) what action should be taken by the President. The NA, having received such a recommendation, would then have to consider the Court’s recommendation and make its own report whether it believe the removal of the Chairperson was warranted. Nowhere in law was there authority given to the PP to refer the reports to Parliament and tell it to remove an individual, as she was not authorised to dictate what should be done.

The second point was that this actually was contrary to the doctrine of separation of powers. Chapter 9 institutions were independent of Parliament who must not interfere with their functions.

The second “remedial action”  was listed under paragraph 12.1 of the PP report – this set out a time frame and monitoring requirements, saying that Parliament must report. Again, the Legal Advisers pointed out that there was no legal authority for this, and questioned whether, in fact, Parliament was obliged to report back to the PP at all.

The Legal Advisers said that this Committee essentially was a representative of Parliament, and Parliament could not deal with a proposed action where it had no authority to do so. It was not even very clear what the PP wanted. She was not authorised in terms of the law to specify remedial actions, unless the report was being referred to Parliament for information purposes only. The problem was compounded by the fact that there was also conflicting correspondence. In her original letter, the PP said asked that the Speaker deal with the matter, and refer it to the IEC “for further investigation”. This raised the question of whether her Report was to be considered a final report, or a draft. The second point what whether the IEC or Electoral Court was authorised to deal with a report of the PP, and whether she was asking it to review the matter; the powers given to the Electoral Court did not authorise it to investigate or review such reports. If the PP believed that “investigation” might cause the Electoral Court to come to a different finding, then this came back to the question of whether her report was final.

The last question posed to the Legal Advisers was how the Committee was to deal with the question of the Electoral Court and the PP Act, but she reiterated that the mandate of this Committee was to consider what had been referred to it by the House.

Discussion
Mr J Selfe (DA) said that the legal opinion seemed to have been quite clearly focused on  paragraph 3 of the Motion of the NA, because, in view of later correspondence, paragraphs 1 and 2 of the mandate fell away as they related to correspondence between the PP and the Speaker.

Mr T Botha (COPE) said the Committee had been asked to consider the recommendations of the PP’s report. It was not expected to “question” the recommendations of the PP, in terms of the law. He thought this was vague, and asked whether the Committee was able to interview parties and consider why actions were taken?  If not, then what was the meaning of “consider”

Mr M Motimele (ANC) said that the challenge was that this Committee, to put it bluntly, may just be a “conveyor belt”.

The Chairperson made the point that actually the PP’s report did not contain anything specifically entitled a “recommendation”.  

Mr J de Lange (ANC) said that it certainly would have helped this Committee if the PP report had been more eloquent, and agreed that it never mentioned “recommendations”. At most, there might – on a generous interpretation – be contained in paragraphs 11.1 and 12.1, but the latter was actually an instruction to Parliament, which he had never heard of anywhere else. Paragraph 11.1, although called a “remedial action”, could contain a recommendation.

His second point related to whether the Committee actually had to go so far as even to consider the requests. One letter from the PP had suggested that the report was submitted for information, about the things that the Commissioner had said in the public, and certain questions were raised. In the second letter, however, the PP had clarified that she had not intended the matter to go to any Committee for discussion. That raised a further point – only Parliament could decide what Parliament should do – and it was not for the Speaker, or anyone else, who could dictate to Parliament, so that alone was something incorrect. He thought that if the Committee wanted to be magnanimous, it could look at the question of monitoring in the IEC, which might take the meeting forward. It might help if the “resolutions” had been more clearly stated.

Mr A Gaum (ANC) agreed. The main point was that was that misconduct of any commissioner would be dealt with in terms of the IEC Act, as section 20(7) set out clearly how the investigations would proceed. The Electoral Court may investigate an allegation, and then the Court would make a recommendation to the NA. That process had not been followed at all. The NA was being requested to refer the matter to the Court, and that was completely the opposite of what should happen. Any allegations of misconduct, capacity or incompetence would have to be dealt with at Electoral level, so purely from that viewpoint, the PP’s requests or recommendations – whatever they were called – could not be entertained in the manner that she suggested.

Mr Gaum continued that paragraph 3 of the NA resolution had asked this Committee to “consider” the recommendations (of which there were none) in so far as they related to the mandate of the NA. This raised the question whether the Committee was being asked to consider if they were correct?  That could not be so as it would impinge directly on the independence of the IEC and the mandate. The mandate of the NA in relation to electoral issues was in fact to assist the IEC by considering resolutions from the Electoral Court. He did not think that any of the PP’s “recommendations” related to the mandate of this Committee.

Mr H Schmidt (DA) said that his main concerns related to the referral. The PP had said that she was referring the matter in terms of section 8 of the PP Act. Section 8 said that the Public Protector could submit a report if he or she deemed it necessary, alternatively could submit a report at the invitation of the NA. However, she had not done this – she had referred a letter to the Speaker. Again, in paragraph 12 of her report, she made reference to “the Speaker, in consultation with the IEC…”.He was unable to find the basis for such referral to the Speaker. The NA had power to decide on matters, not the Speaker, from a purely legalistic viewpoint. The Speaker – quite correctly – had referred the matter to Parliament, for there was nothing else that the Speaker could do with such a report, other than to table it to the NA. So, in his view, the question was, firstly, was there a referral, and secondly, was it referred properly to Parliament. He did not quite understand her letter, which said that although under section 8 of the PP Act the NA had a mandate, she had claimed that she was not relying on this.

Mr De Lange wanted to follow on from that point. He said that the second letter from the PP was “completely absurd” and apologised for quoting the wrong section initially. She had then said that the matter required attention, but it was never her intention to have the report tabled in Parliament. He thought that there was where the Committee needed to start. If the “request” was never really a request, and the report should not have been tabled at all, then it was not feasible that this Committee be required to deal with it. If the PP wanted the removal to be considered, then she had again followed the wrong route – the request should firstly have gone to the Electoral Court, who must then make a recommendation back to Parliament after a proper enquiry by a court of law. That provision was there for obvious reasons, to avoid political interference in the removal of a Commisioner. Nowhere, however, had the PP stated that she was seeking removal. If she did believe, at any stage in her investigations, that there was anything suggesting that removal might be appropriate, she should have halted the investigations immediately, and referred the matter to the Electoral Court. He agreed with his colleague that this whole matter was wrongly handled in that any request must be to Parliament, not the Speaker. For all the reasons already stated, he concurred that the NA could not refer the matter to the electoral Court, as suggested, and it did not, therefore require any further consideration.

He thought that paragraph 11.1 was “amazing” especially since it was apparently drafted by lawyers, in that it failed to recognise, firstly, that the Speaker of Parliament could not constitutionally make any decision on behalf of Parliament. Secondly, it was completely  contrary to any principle of the separation of powers that Parliament would “consult” with the IEC, as it was part of the Executive, particularly since “in consultation” implied a right of mutual veto. The person complained of was the CEO of a Chapter 9 structure. He commented that “the width of naivety in this clause takes my breath away”. It was humanly impossible for the Committee to give effect to the paragraphs, even if it were to be magnanimous. Even if it were to assume that 11.1 was a recommendation, it could not be given effect to. At the very most, if it wished, Parliament could suggest that the institution of the IEC may wish to take action, but it was certainly not for Parliament to deal with the staff of the IEC. It must also be remembered that the requests in the first letter were then withdrawn in the second. In totality, even if the Committee wanted to go and hold enquiries into the truth of any of the matters, it could not do so. He would hate to imagine what wide doors would be opened up if the Committee started to question matters and have hearings on every single report.

He knew that the media would like to hear more, but reiterated that it would, in his view, be an aberration if Parliament acted any further on this PP report. He proposed that, if all parties agreed, the Committee proceed to draft a report noting that if there was any suggestion of wrong-doing on the part of the CEO at the time, the appropriate remedy lay with the Public Finance Management Act (PFMA), which allowed for stiff sanctions. Mr de Lange also noted that the IEC had written to Parliament to indicate that it was not satisfied that in fact any further steps were justified. If there were any questions around any loopholes or defects, then perhaps the Departments of Home Affairs, the IEC and National Treasury might need to consider how they could e handled. That could be said in the Committee Report, and this Committee could call on those departments to report back to Parliament with solutions.

Mr Gaum supported Mr de Lange. It was clear that the only “recommendation” – if it was indeed such – was not constitutional or lawful so it was impossible for this Committee to take it further. The procedures were clearly set out in the IEC Act. Any allegations of misconduct must be made and investigated in line with that Act and the Electoral Court would have to make recommendations to Parliament.

Mr Selfe noted that the legal opinion provided had clearly articulated all the problems, which were broadened out further by Mr de Lange. It was not competent for this Committee or Parliament to take any further actions, although there was nothing incorrect in suggesting that the IEC, Auditor-General or National Treasury follow up further. He suggested wording along the lines that the ad hoc Committee had noted the PP report, but was unable to proceed with anything in the report as suggested, as it would be unlawful and unconstitutional to do so. However, the Committee would  invite any other institutions that were referred to in the PP report to provide any further follow up information that they may have, in due course.

Ms J Moloi-Moropa agreed that the letter from the PP was fraught with problems. She thanked the legal advisers for their credible and helpful opinion, which had clarified many points. The Committee had gone carefully through a number of issues and the instructions to the Speaker were clearly incorrect. She was surprised by this as she would have expected that there would be a greater understanding of the way that the institutions functioned. In addition, it had been very difficult to “scratch around” to find recommendations and make assumptions from that report. The Speaker, nor Parliament, could not act “in consultation” with another independent institution, as independence must be strictly preserved. She suggested that the Committee Report should further outline how the different powers functioned and emphasised that there was no desire to infringe on the PP, Electoral Court or IEC terrain.

Mr de Lange formally proposed that the Chairperson and Mr Selfe be mandated to draft the Report, to be circulated, thereafter considered and adopted, to put the matter to rest.

The Chairperson thanked Members for the input, and took the point that the Committee was also not competent to interfere in an investigation or report of the PP, but believed firmly that the Committee had the right to express an opinion. After the letters had been forwarded to Mr Vanara, he had asked what the PP actually wanted, if it was not her intention that this be tabled in Parliament. Somebody had suggested that perhaps she wanted the Speaker to discuss, with the IEC, the referral of the matter to the Electoral Court, but whether that was her report, or the comments made publicly, he was not sure. A suggestion that the Speaker and IEC should sit down to decide on something was quite bizarre, because he would have expected this office to have a greater understanding and the notion that she could make requests of the Speaker was worrying. However, only the PP could actually answer the question as to what was wanted. As suggested, it was possible that the Committee Report could say something about procurement being tightened, but other than that, Members were quite right and there was actually no action that this Committee could take.  The report would be drafted and circulated, and hopefully early next week the Committee could meet again to adopt it.

The meeting was adjourned.