IPID Executive Director term of office: deliberations day 2

Meeting report

Chairperson Opening Comments
The Chairperson noted that the Committee would continue with deliberations on the renewal or non-renewal of the contract of the Executive Director of the Independent Police Investigative Directorate (IPID), Mr Robert McBride, as the Committee was mandated to do in a court order of the North Gauteng High Court and in a referral from the Speaker of the National Assembly.

Yesterday, the Committee discussed the primary submission of the Minister of Police and Mr McBride along with the appointment letter, performance agreements, performance assessments, Committee reports, briefings to Committee, IPID Amendment Act, applications for posts, security clearance and trust relationships. 

The submission from Corruption Watch, a friend of the court, suggested the Committee look widely at all sources in assessing the request and making a decision.

Following yesterday’s proceedings, the Committee wrote to the Director-General of the State Security Agency (SSA) to get confirmation on the current status of the security clearance of Mr McBride.  The Committee also wrote to Mr Nkabinde to get confirmation on the withdrawn of his complaints against Mr McBride as Mr McBride alleges.  The Committee also wrote to Mr McBride to get his view on the Public Service Commission (PSC) report on the investigation into security clearance of IPID employee. The Committee also made strides in getting further clarity on the sequence of correspondence between the Minister and Mr McBride to ensure Members have the complete series.

Today the Committee would deliberate on the Auditor-General (AG) reports and notes, Public Service Commission (PSC) report on investigation into security clearance of an IPID employee, Executive Authority/Accounting Officer guidance framework, Public Protector investigation, fit and proper person, independence of IPID and current political context. The Committee would follow the same process of allowing each Member seven minutes in which to make inputs on the particular discussion topic at hand.

Discussion
The Committee received the letters sent from Mr McBride to the Minister on the matter of the renewal of the contract.

Mr L Ramatlakane (ANC) noted the Committee received letters dated 5 September 2018 and 13 November 2018 from Mr McBride to the Minister. It appears, from the reading of the letter, that Mr McBride was clear on the contract coming to an end in five months (from September 2018). Mr McBride wants to know in the letters if the Minister intends extending the contract. The letter of 13 November 2018 makes reference to the letter of 5 September 2018. The key paragraphs in the November letter speaks to the fact that Mr McBride acknowledges his expiring contract and recommends the process of advertising the post and selection of the suitable candidate commence at the earliest opportunity. This letter settles the discussion with respect to the contract. The letter from the Minister seems to be a direct reaction to both these letters. These two letters conclude that Mr McBride is not confused about the ending of his contract and was proactive in urging the Minister to begin the process of finding a suitable candidate as his replacement. Mr McBride makes reference to a suitable candidate and does not put himself as such candidate.     

Mr M Shaik Emam (NFP) thought these letters were the final nail in the coffin. He was concerned as to why Members did not get copies of the letters in the first place because the Committee spent hours deliberating the matter and said the Minister was wrong to send the correspondence through to Mr McBride and that he did not have the right to do so. The two letters show Mr McBride knew the Minister is an interested party and in some way knew he had to accept the responding correspondence. Mr McBride expects the Ministry to either extend his contract or not. In him writing to the Minister, Mr McBride knows the Minister is the correct person to take the decision of the contract but then he turns around and says the Minister had no right to take a decision on the contract. Mr McBride even goes one step further and says the process of appointment should commence because IPID needs to function smoothly and continuously without any hindrance. Mr McBride wrote these letters months before the expiry of his contract. .it is clear Mr McBride knew his contract was coming to an end and that, according to the letters, there is a great possibility he may not get his contract extended, advises the Minister on what to do, the Minister responds positivity to the advice but then Mr McBride blows it out of proportion as if the Minister is doing something wrong. Mr McBride led the Minister into this. There was a contract, it is going to expire, the Minister does have a role to play in deciding on the extension of the contract, although not directly, and this correspondence of Mr McBride confirms this. If anybody gave the Minister the right to decide on the extension of the contract then it was Mr McBride himself to respond and take a decision. Reading the correspondence, it is as if Mr McBride is pushing the Minister to take a side and get the appointment process started. Added to this, Mr McBride applies for other jobs- yesterday the Committee had a great debate on this with many Members arguing he has the right to apply for other jobs. However the most important point of these job applications is that if Mr McBride got the job he would have started work on 1 April 2019 indicating IPID would not have had him as the Head, which means IPID would have to get someone else, which then means it would not interfere with current investigations. This means the interests of Mr McBride is not in the investigations or IPID but in getting a job, which is his right in any event, but this means there would be no implications for the current investigations. IPID functions as a unit and organisation, not as one individual. There is concern as to why the court did not consider this correspondence. The correspondence shows, in the Member’s view, that the Minister did not do anything wrong in conveying his intention not to renew the contract but that the Committee must take the ultimate decision.

Ms P Mmola (ANC) said the letters show the Committee was misinformed in thinking the Minister wrote to Mr McBride first to tell him he would not renew the contract. The Committee did not know that Mr McBride was the one who wrote to the Minister first to ask him about the renewal of the contract. Members thought the Minister was wrong. When Mr McBride wrote these letters to the Minister, he forgot he was supposed to write to the Committee too to inform it about the letter written to the Minister questioning the extension of the contract. She was so happy Members now have this correspondence but she wondered if the court has it. The letters show Mr McBride recommended to the Minister that he begin the advertisement process and selection of a suitable candidate at the earliest opportunity. Mr McBride does not say he is a suitable candidate. If Mr McBride thought he was a suitable candidate, he would have asked the Minister to appoint him because he loves the job. Despite these letters, Mr McBride went to the court and said only the Committee can take the decision of the contract extension but Mr McBride did not send this correspondence to the Committee so that the Committee could question the Minister on the contract extension. Mr McBride contradicted himself in these letters and he is not a good person to do this. Members were fighting amongst each other on why the Minister wrote the letter when all along he knew he was the one who first wrote the Minister. If these letters were sent to the Committee, the Committee would not be in its current position and would have started the process of recruiting a suitable candidate.


Mr Z Mbhele (DA) said the correspondence certainly shed more light on the preceding period to the Minister’s letter in January 2019. The point should not be lost on the “precision of language” but on having accurate and clear understanding of meaning and sentiment conveyed. It is key that in the 2018 correspondence of Mr McBride, his specific recommendation and request was for initiation of an advertising and selection process. The crux of the current matter is renewal. The difficulty and ambiguity is that the IPID Act does not speak explicitly to the requirements of renewal – there has instead been inference as contained in the court agreement between the parties. There is however no specific citation in statute on what is required step-by-step. The selection process, as Mr McBride suggested, is provided for – the advert would have gone out late last year, candidates would have applied, it is not know whether Mr McBride would have applied, and this would go through the relevant filtering process. As per the IPID Act, the final step in the selection process would have been for the Committee to reject or confirm the nomination. The matter would have still ended up with the Committee having this similar discussion. It does not change what the final step in the process would have been. If anything, the Minister has muddied the waters and complicated things because there was not an early enough response and the Committee now has to do this last minute process on an urgent basis. We know from the Minister’s January 2019 letter that he has taken a decision, or expressed intention not to renew – this is however very open-ended. There is no indication of whether an acting Executive Director would be appointed or when the actual selection process would be initiated. The IPID Act is actually unique to most statutes because it is specific that any vacancy in the Executive Director’s decision must be filled within a year. Even if an Acting Executive Director was appointed, the post would still need to be filled within a year as leaving it open exposes IPID to the risk of even this not being complied with. The point is that the matter could have gone a different way, and much better way, but the Committee would still would have ended up making a determination concerning a ministerial nomination but now the Committee finds itself dealing with a renewal matter and feeling its way in the dark. For the Member, this was not quite the final nail in the coffin and it is not as clear cut as to a binary of right and wrong. It now means the Committee is dealing with a situation as best it can to consider the question of compelling substantive reasons to definitely not to renew and/or compelling substantive reasons to go against non-renewal. 

Mr M Buthelezi (IFP) agrees the letter written by Mr McBride to the Minister is very clear but the question is what would have happened if the Minister intended to renew his contract and if the entire appointment process would have unfolded. If not, the Member was of the view Mr McBride was correct in that the response of the Minister should have been to refer the matter to the Committee and not simply express the view that he has decided not to renew the contract. The Member would have loved to know what would have happened had the Minister decided to renew the contract –it could have meant something totally different as far as the matter is concerned. Looking at the response of the Minister in stating he would not renew the contract, Mr McBride questions the basis on which the Minister took this decision – anybody would have questioned this. For example, many people apply for posts but are then not shortlisted even though they feel they are qualified for the post and have the right to be shortlisted. The problem is that Mr McBride is now dismissing the reasons the Minister has advanced for the decision he took. Members seem to be confusing themselves and are overemphasising matters they should not. The Committee should forget the Minister has pronounced on the matter but look at the reasons the Minister has advanced for saying the contract should not be renewed and Mr McBride’s response and then make a determination on whether the contract should be renewed or not.   

Ms D Kohler Barnard (DA) said within a day or so of the query to the Minister by Mr McBride questioning the intention of the Minister, the Minister would have, or should have, been aware of the Committee’s just completed work on amendments to the IPID Act that was handed to the NCOP. The Chief Whip of the ANC welcomed the amendments saying it restricted political influence in the removal and suspension of Executive Directors in IPID. The court decision said removal and suspension all falls to the Committee. During the time of the correspondence, the Committee was in the middle of putting an Amendment Bill through which would have absolutely clarified the situation in that it is up to the Committee and constricted any Minister’s ability to dabble in the appointments of IPID. The court rulings have adequately dealt with this and the matter is now clarified.
The Chairperson clarified the matter was around disciplinary processes against the Executive Director not falling under the Public Service Act. Copies of court cases are in the document bundles of the Members.

Ms A Molebatsi (ANC) said in the 5 September 2018 letter from Mr McBride to the Minister, it is quite clear Mr McBride knows and acknowledges the role of the Minister in his contract whether to retain him or not renew the contract. She did not know what happened in Mr McBride’s mind thereafter. In that, she rested her case.

Ms L Mabija (ANC) read out the letter of 5 September 2018 and 13 November 2018 written by Mr McBride to Minister Cele for the benefit of those who did not have the correspondence. She said these letters make it clear the Committee no longer needs to deliberate on the matter because the Committee knows what to do and what not to do. 

Mr J Maake (ANC) noted that he requested these letters yesterday and specifically said the omission of these two letters is a bit dangerous because it gives the impression the Minister woke up on the wrong side of his bed and decided to inform Mr McBride that his contract would not be renewed. The omission of these letters amounted to lying by omission. He was not sure if the court considered these letters but said it would have made a very big difference to the case, although he was not a legal person.

Public Service Commission (PSC) Letter relating to finding made by the PSC with regard to the transfer of duties of a Deputy Director in IPID

Mr Ramatlakane said the letter emanated from a staff member working for IPID as a Deputy Director heading the personnel vetting section. The reasons of the Minister make reference to this matter pointing to the abuse of authority and power by Mr McBride. The summary of the letter says that the Deputy Director requested a transfer to work in the SA Police Service (SAPS) and the response of Mr McBride was that the Deputy Director should be removed as the head of vetting in IPID. It is important to note that the Committee has been talking about the matter of vetting and challenges in the area for some time. It is the view that the Deputy Director would be too close to SAPS and so should be removed and be confined somewhere. Worse, the transfer happens but her top security vetting level is removed by Mr McBride and his voice becomes law. This means that the Deputy Director cannot vet others because she no longer has that top status herself. The PSC finds there is a violation of the IPID policy and amounts to abuse and harassment. The PSC also says the action of Mr McBride gravitates towards violating section 3 (1) of the Constitution, as Head of IPID. The Member was of the view that given this incident, it should be corrected and the Deputy Director should be reinstated to the position of a vetting officer in IPID. The PSC seems to be corroborating these reasons advanced in the Minister’s submission. The PSC letter points to the fact that when a head of an institution acts without regard for rules and policies, it is a serious thing in institutions. In his submission, Mr McBride glibly responds to the incident and says the investigation was completed and he was found not guilty so it is sorted. The additional records the Committee requested found the contrary was true and the Committee was misled.

Ms Mmola was concerned because the PSC said IPID should refrain from harassing the Deputy Director in this regard. She was sensitive to women being harassed in the department – what kind of person does that? This employee was a Deputy Director in Vetting but was then moved to Supply Chain where she would not add value – this shows the employee was being frustrated. She was concerned about the vetting of IPID officials. This incident raises question marks for the Member. This employee amounted to a threat and she was concerned about the abuse of women. The Member is a woman and referenced the 16 Days of Activism.

Ms Molebatsi spoke to the inappropriate manner the Deputy Director was handled – she was stripped of her title, her security clearance was withdrawn willy-nilly and this was un-procedural. This was victimisation of the highest order. To the Member, Mr McBride was applying his bully tactics.

Mr Maake did not want to belabour the point but said it was very clear in the findings that Mr McBride went against the Constitution of the country – he did not think there was anything bigger than this. He did not see why the matter is being debated when it is a finding from the PSC, an independent Chapter Nine institution. The finding said Mr McBride went against the Constitution of the country, the supreme law.  This says it all. If the findings are being disputed then they should be appealed somewhere.

Mr Buthelezi thought the PSC letter was one thing that counted against Mr McBride.

Mr Mbhele said the useful matter of the document is that it is the first time the Committee is dealing with a finding and not an allegation or whisper. This is a finding by an investigative body which can be treated in a clearer manner compared to much of what came up during the Committee’s deliberations yesterday. The finding is of labour malpractice and the question which flows from it is whether a finding of labour malpractice is of a nature or egregiousness that warrants what kind of proportionate reactionary sanction. The recommendation of the PSC was that the transfer be reversed, the withdrawal of the security certificate be invalidated and that IPID was advised to refrain from harassment.  The stated grounds for the finding of harassment are quite broad. The reasons advanced by IPID, assumed to be provided during the course of the investigation, are not clearly stated. There is only the finding by the PSC that the reasons of IPID are found to be baseless and without merit – one has to take this finding at the word of the PSC. The Commission’s findings and recommendations do not seem to speak to competence or incompetence, fitness for purpose or not and such high-level matters that the Committee’s process is about in terms of the renewal determination. The adverse finding is taken. Whether labour malpractice can be taken to argue for one’s fitness, there are then a bunch of people in the public sector which have to answer to similar matters.

Mr Maake did not understand Mr Mbhele’s point or what he was actually saying.

Ms Kohler Barnard said the PSC letter is about a person whom Mr McBride unilaterally transferred and from whom he removed security clearance. In the end the PSC found this to be an overreach, his action was found to be incorrect and it was reversed. This was three years ago. She did not see the letter from Mr McBride explaining his actions and the reasons for his actions - it is understood the action went against labour law but why did he do it? The woman was returned to her position. There is certainly no reference to the Constitution but his decision was reversed. Surely the Committee needs a letter from Mr McBride filling in why he took this action, as unprocedural as it was.  The PSC does not recommend that any action be taken against Mr McBride at all or suggestion that he be fired or charged because of the action. As much as the Committee elaborated on the possibility of what he did, the Committee really has no information on why he did it. Perhaps if the matter had been followed in a different fashion with different procedures, the action would not have been seen as so egregious – we do not know. The procedure was not followed correctly, it was put back on track but with no explanation from Mr McBride –the Committee is taking a very one-sided view of the action. She repeated the action was not considered to be so serious that the PSC imposed any charges against Mr McBride at all. It was simply an incorrect procedural matter which might well have had a different outcome had it been approached along a different line. The Committee needs some explanation as to why Mr McBride did what he did. The Committee may well agree what the employee did was so egregious that it may perhaps have gone further along correct labour legislation lines.

The Chairperson replied that the Committee Secretariat was instructed to request this information from Mr McBride – it was still awaited at this point.

Mr Maake asked if the last two speakers were against the PSC findings to get a story from Mr McBride. The Committee is not the Commission. Do these Members doubt what the PSC did? What are they actually saying? One cannot say harassment of women is minor. It is grounds for summary dismal if someone was found guilty of harassment, although the Member said he is not a legal person.  If these Members did not have anything to say on this topic, perhaps they should just keep quiet.
The Chairperson said it is important to keep the process on track. Members may disagree with each other but the Committee would be moving to findings to express agreement or disagreement.

Mr Ramatlakane corrected Ms Kohler Barnard to say that the PSC matter started in January 2018 and the application was made in 2017 when the memorandum of request was presented. It is incorrect to say the matter was from three years ago.

Ms Mmola became worried and disappointed when women protect men for abusing or harassing other women. The matters Members are discussing are written as recommendations from the PSC.

Mr Shaik Emam was concerned that Members are forgetting about the seriousness of the action of Mr McBride in this instance. Surely as the Executive Director, Mr McBride knows labour law and what can and cannot be done. No one has ever contested the PSC findings. It is clear Mr McBride not only violated the rights of the individual concerned in the matter and labour laws but showed Mr McBride is a law unto himself – if he decides black is white then black is white. Mr McBride did not consult the employee but in fact was walking all over her – this is what the matter comes down to. It also shows why so many people have challenges with the way Mr McBride conducts his affairs. It is contradictory when one decides unilaterally one no longer wants an employee and simply removes them but when the Minister makes a decision on one’s contract, one has a problem. The Committee must be consistent in what it does. Why are Members defending this? It is quite clear Mr McBride went beyond his powers.  In order for the PSC to reach this decision, it would have gone through an entire process including getting representations from Mr McBride as to his actions and this is how the Commission came to its findings. The Member was actually shocked Members are, in a devious manner, trying to question the findings. Looking at the reasons submitted by Mr McBride, he says IPID is at war with Crime Intelligence. Right now Mr McBride believes he is at war with the Minister, Phahlane   and everybody else even though he has proven nothing. Everything boils down to Mr McBride being the one that is right but everybody is making different statements about him which he says is wrong because he is above everybody else. As a head of department, one leads by example but if one has undermined one’s fellow employees to the extent one had, one’s institution would be ungovernable. This is why there are so many problems. The Committee must respect the PSC findings. It is clear Mr McBride is a law unto himself, respects no one but himself and wants others to accept what he does. It clearly indicates Mr McBride is not fit and proper to hold that office.

Ms Mabija humbly requested that some Members stop fumbling trying to divert the true facts of the item the Committee is dealing with. These Members are playing with the minds of other Members and testing their reasoning powers. This is taxing and is not liked – these Members must stop this fumbling and feeding the inner ego.

Ms Kohler Barnard said she at no stage questioned the findings of the PSC report or questioned anything said by the PSC in the report. She requested the Committee get an explanation for why these actions were done. There were no recommendations that Mr McBride lose his job over a procedural matter.   If it is more serious, Members need to know.

Public Protector Investigation

Ms Kohler Barnard did not see anywhere that the Public Protector is claiming to be investigating this matter but a complaint has been launched with the office. From what the Member saw, these were the same complaints that were discredited by the PSC. According to the Public Protector Act, the Public Protector is obliged to conduct a preliminary investigation of any and every complaint the office receives unless the matter is premature, concerns a court decision or is submitted more than two years after the occurrence of the incident. This is a preliminary investigation which the Public Protector has to do. One of the complaints is anonymous and one questions whether any entity is allowed to investigate an anonymous complaint.  Once the complaint had been investigated by the PSC, it seemed Mr Nkabinde did not like the outcome so he tried in numerous other ways to introduce the same complaint that had been discredited. Mr Nkabinde was now taking these same complaints to the Public Protector – anyone else would consider this as a form of harassment. In that the PSC has investigated these allegations and they were all considered to be unfounded and false, in that Mr Nkabinde actually withdrew the allegations, as detailed in the papers, one asked whether these allegations should be removed from the Committee’s deliberations. However these same unfounded and discredited charges were quoted and over and over again as though Mr McBride was somehow found guilty of doing any of these things all of which were unfounded and found to be false. The Public Protector is simply doing her job by conducting a preliminary investigation as she would do with any case lodged with her office. It is simply untrue to say then that the Public Protector is investigating Mr McBride. 

Mr Ramatlakane did not remember that the Committee found Mr McBride guilty of anything – the Committee is not running a disciplinary committee but listening and engaging with what had been submitted to the Committee by both the Minister and Mr McBride on the matter of a contract expiring two days from now.  To appropriate words to Members is not good. On the basis of Mr Nkabinde writing to the Committee, in October 2018, to request feedback on his communication with the Committee, Members said yesterday the allegations could not be taken off the table completely but must clarify if indeed Mr Nkabinde did withdraw the allegations as was alleged. This would provide clarity on the matter. Members need to speak for themselves and their own views without considering how other people interpreted it.

Mr Ramatlakane said on the Public Protector matter, Mr McBride has a long chapter explaining the complaint away as if it did not exist, was neither here nor there and the investigation was simply a run of the mill process. The fact is a complaint is lodged and the allegations are serious. Some of the allegations are already corroborated by the PSC, as Members discussed earlier. It was found there was violation of the IPID policy. The Committee also spoke about the irregularity of converting leave to money without approval – one cannot pay oneself and call it legal. These are serious matters as contained in the Public Protector letter. With respect, the Member did not agree with Mr McBride that these matters are frivolous and should not be worried about. Some of these matters the Member found hair-raising. There is a matter of approximately R500 000 paid irregularly in terms of legal service – this is not merely an allegation. It cannot be said these matters are not important, does not play a role or has no influence. Misconduct acts as a barrier and must be cleared. Some of the officials mentioned the Committee knew personally but they have now left allegedly because they were asked to implicate, or write a small statement, but they refused to do it. These allegations must be tested. The purchase of semi-automatic firearms and surveillance devices is worrying – for what purpose are they required? These are serious matters which must be explained. The Member was of the view that these matters should not be taken off the table of the Committee’s discussions as if they are merely part of the Public Protector’s preliminary investigations.  

Mr Maake said ongoing investigations can be thrown out of the window because no decision has been taken about the investigation. The Member’s understanding is that the Public Protector dismisses frivolous complaints that could waste taxpayers’ money. The fact that the Public Protector is investigating this complaint means there is prima facie evidence. Non-completed investigations can be put aside by the Committee for now for this purpose.

Ms Mmola noted the letter from the Public Protector was written on 17 October 2018 to Minister Cele. When this matter appeared in the media, Mr McBride went to the media and said the Public Protector is not investigating him. The Committee has no information to say the Public Protector is not investigating Mr McBride. There are serious allegations that Mr McBride paid himself a Head of Department (HOD) allowance for the period he was on suspension without receiving approval from the Minister. Mr McBride paid himself an amount of R100 000 for unused leave credits without receiving approval from the Minister. Who is Mr McBride reporting to?  One cannot approve one’s own leave. When Members want to take leave, they have to ask the Whip but cannot make this approval themselves. This shows Mr McBride was his own boss and did not report to anybody. The letter also points to the staff that refused to implicate Mr Phahalane of maladministration were forced to leave – this showed if one was not dancing to the tune of Mr McBride, he would send one out. How could the Committee discuss renewal of the contract when there is misconduct and allegations? The Committee must look at these matters and reports. The Committee must be sober-minded in dealing with the matter.  If one is cleared of allegations, there should be communication indicating this. The Committee repeatedly asked about the R500 000 paid to the Adams and Adams lawyers which was said to be under review – this was the answer given for four years.

Ms Molebatsi said Mr McBride approved the salary progression of Mr Sesoko, Mr Dlamini, Ms Netsianda and others irregularly. Mr McBride also introduced a new logo for IPID without the necessary approvals and registrations. The Member questioned Mr McBride on the logo during an interaction with the Committee but as usual, Mr McBride simply said what he wanted to say and answered the question in passing – to him it was like the matter was a small thing yet now it is mentioned in the Public Protector’s report.

Mr Mbhele did not want to get too embroiled in the nitty gritty of the current item on the agenda as these are all allegations and he did not think the Committee is the competent authority to make a qualitative evaluation of the allegations. He highlighted the schizophrenia which surfaced during different parts of the Committee’s deliberations – on the one hand it is expressed allegations are allegations, one must be sober-minded and conduct the process properly but when allegations are read from the Public Protector letter, the allegations are read as supposed facts or reality. The Committee cannot make a judgement yet – there are serious allegations going through the process. However every now and then the allegations are expressed with a tone that suggests they are the facts and therefore they can be used to infer something about the conduct or character of Mr McBride as it then has bearing on this process.

Ms Molebatsi interjected to say that Members were clear on when matters are allegations.  

Mr Mbhele continued to say that these matters are allegations. A salient point to make about the Public Protector letter is that Mr McBride, in his submission, says he has not yet been formally advised of the allegations are given an opportunity to respond because he first heard of them in the Minister’s submission and that there is currently the preliminary investigation by the Public Protector in order to then determine if the Public Protector would then launch a full and comprehensive investigation to make findings. The Committee is then dealing with the first phase of an embryonic exploratory process into the allegations. The weighting the Committee gives to any submission must be taken into proper framing. If the Member was right now to submit a dossier of allegations against any other Member to, say, the Ethics Committee or wherever, this in and of itself means nothing except for perhaps reputational damage until the Ethics Committee sits, deliberates, processes and reaches a conclusion – this is where the Committee currently is. He cautioned against being shocked at allegations because if they are found to be true, the Member would be at the front of the queue for the Committee to do its job and initiate removal proceedings – until then, these are allegations.

Mr Buthelezi asked if the Committee received the letter confirming that Mr Nkabinde withdrew his allegations.

The Chairperson explained the request for information went out after the meeting yesterday. The Committee Secretariat would be contact the various role-players during the day to ensure the requested information is submitted.

Mr Buthelezi found it difficult to know to which extent to discuss the matter without the confirmation from Mr Nkabinde. The Committee would just end up lamenting. If it is true that these allegations were withdrawn, it would not need to be discussed. If not, then this was something for the Committee to consider.

Ms Mabija said for heaven’s sake, the Committee does understand there are allegations before it and the allegations are negative not positive. How on Earth can the Committee not do what it is expected of it or fail in meeting this expectation? The Committee needs to check on all these allegations. Some of the allegations are putting a very dark cloud over the head of the incumbent.  She did not see why Members need to strain their brains when the matter is so clear and explicit. There is nothing stopping the Committee from taking a decision because these are just allegations. The Committee must do the honourable thing on or before 28 February 2018. Why is the matter being dragged on when it is obvious?

Mr Shaik Emam sometimes wondered if he was on the same planet as some people.  Sometimes a call is made for people to be suspended, moved or fired when there are allegations but then sometimes when there are serious allegations, people say they are merely allegations. The allegations by Mr Nkabinde and those before the Public Protector are not entirely the same – the allegations of Mr Nkabinde relate more to unethical conduct particularly around the matter involving Paul O’Sullivan and Mr McBride. The allegations before the Public Protector are more extensive. These include serious allegations of R100 000 in unused leave credit, Mr McBride paid himself a HOD allowance, Mr McBride granted himself a salary progression, paid several employees leave pay, sidelined the Chief Financial Officer, oversaw a number of irregular staff appointments, sidelined IPID staff who refused to implicate Phahlane – one should not forget all the allegations against Phahlane were withdrawn. How is the Committee talking about a credible person? There are so many allegations. The Member is still yet to be convinced why he should support renewal of the contract. The Member has seen the highest level of deceit – everyone was convinced the Minister did something wrong but the original correspondence of Mr McBride was not put into the file or before the court and only came much later, conveniently. There are deceitful attempts to misdirect the Committee with letters not provided. Members were then expected to forget the allegations before the Public Protector. Everyone knows there is no smoke without fire. While no one was saying Mr McBride is guilty, under the present circumstances of the many allegations against him, and all the other aspects the Committee has gone through so far including letters, job applications, removing people forcefully, being a law unto himself and the contract, the Member had yet to hear why Mr McBride should remain in the job – he was not convinced. In terms of the Public Protector, given the circumstances of how someone was forcefully removed without following any processes and guns are being bought without due authority, one would feel intimated to give one’s name when giving evidence. This is normal human behaviour and does not mean an anonymous complainant’s case cannot be heard. For the Public Protector to accept the file and say she is investigating the matter surely means there is something in the complaint which gave the Public Protector the understanding there is prima facie evidence to proceed with an investigation. These authorities should not be undermined. If the capable Public Protector at any stage had the slightest inclination the complaint would be a waste, she would not have taken on the matter. The Public Protector has taken on the matter and is investigating because the office believes there is a strong possibility of conviction – these processes should not be undermined. One needs to question why there are so many serious allegations, amongst many other items, and if it is in the interests of IPID to renew the Executive Director’s contract under the present circumstances – based on the Public Protector matter, the Member submitted that it is not.

Mr Buthelezi looked forward to when the Committee decided on the matter because then Members will meet each other. It is one thing to have self-confidence and another to insist on one’s view. No one has said the contract has to be renewed – the Committee is currently engaging until it reached a decision. Some Members seem to be conflicted and they should have declared their interest. He appealed for Members to use their minds and not their hearts. There are instances where people facing allegations are suspended and there are also cases where allegations are levelled and the individual is not suspended. The suspension is determined by how much the presence of the individual in the environment will interfere with the investigation. In SA, no one is guilty until proven so - even a damning allegation will remain as such until it is proven. If the Committee is perceived to take a line which is favourable to Mr McBride, this is just a view.  Members have a right to be open and discuss any matters in a manner they feel is proper. Where there are gaps in information between what each party is saying, the Committee will need something to bridge this gap such as evidence. The Committee cannot reach conclusions when information is missing.

The Chairperson agreed which is why the Committee needs to look at all material before it. It also explains why the Committee is discussing the topics – nothing is left out which is in the papers. There will of course be different views and interpretations but this will be different once the conclusions are deliberated. Certain styles cannot be imposed on Members.

Mr Ramatlakane apologised if the impression was created that Members were stifling debate –this is not the intention. Members are grappling with complex matters and will have different minds but there should be open discussion. Everyone agrees there are allegations before the Public Protector for investigation and this process will unfold. For the record, he said when the matter was discussed in Committee yesterday, he used the letter from the Department of Public Service and Administration (DPSA) detailing pay progression. It seemed that, using this letter, some step was missed in IPID. The Member also used the letter signed by Minister Dlodlo, Minister of Public Service and Administration, on 5 June 2018 explaining failure of not signing performance agreements etc but where a waiver was provided if the period of five years was covered in terms of performance agreements. It appears in the PSC letter and schedule suggesting the pay progression that in the event these things have happened in IPID without having followed the strong directives from Minister Dlodlo to Minister Cele. It is clear the payment can only be affected once one has done the assessment and signed it. For the record, the Member said what appeared on the document he received it appeared the assessments are not signed but were submitted. Other assessments have been done retrospectively. This means there has been no meeting evaluating the claimed performance. He raised the matters because some of what is raised in the letter from the Public Protector speaks to these matters such as self-payment. The records Members had clearly shows there is a problem and some processes were not carried out as they are supposed to be. This is important because it goes to the heart of what the Committee was asked to do i.e. applying its mind to performance to agree to renewal or not. While this might be irritating, these are the facts. 

Ms Kohler Barnard drew the Committee’s attention to page 12 of Mr McBride’s letter where the Magistrate said Mr Nkabinde lied under oath and was an unreliable witness. This is the Mr Nkabinde who, for reasons unknown, has come up with the allegations that the PSC says are totally unsubstantiated but which have now been reworked and sent to the Public Protector. Members should consider what the Magistrate said because it is determined by a court of law.

The Chairperson said the Committee just received SMS confirmation from Mr Nkabinde that a letter is on its way to the Committee. The Committee will deal with the letter as soon as it arrives.

The Chairperson suggested the Committee move on to discuss fit and proper person.

Mr Maake recommended the matter be discussed at the very end of the Committee’s deliberations.

The Chairperson agreed that the topic would be parked until later today or tomorrow. 

Independence of IPID

Mr Maake asked what this item actually dealt with. Surely it is in the IPID Act and decision of the Constitutional Court.

The Chairperson explained the matter was raised in all the papers and relevant court cases. Part of the argument is that the independence of IPID would be endangered if the contract is not renewed. Mr McBride also argues this in his submission. 

Mr Buthelezi said it is true that Mr McBride submitted that if the Executive Director was changed it could affect the independence of IPID. Mr McBride made specific mention of the Minister influencing the appointment process and all the investigations Mr McBride worked on will be thrown out – this is Mr McBride’s fear in the main. The Committee needs to decide if it bought this view of Mr McBride given that Mr McBride works more closely with the Minister and would know of such influence.  The Committee must however remain neutral and do its work properly.

Ms Kohler Barnard said the independence of IPID follows the various court cases which dealt with the independence of the Hawks. The ANC Chief Whip said the amendments are intended to restrict political influence. This amendment was in line with a court amendment which the Committee effected very quickly and hastily and there is possibly a great more which can be done. Six months ago, the ANC Standing Committee on Public Accounts (SCOPA) Study Group said it was very pleased with the progress being made by IPID into the cases and charges of corruption and defeating the ends of justice in terms of Lt. Gen. Khomotso Phahlane, and the Study Group went on to sing the praises of IPID. Presumably something drastic has happened between six months ago and today because those songs are no longer being sung in a corridor she has heard. Independence means there cannot be any pressure brought to bear. Mr McBride said in a presentation to the Committee that one of IPID’s investigations stopped R45 million going to the ANC elective conference – this cannot be used against Mr McBride for political reasons because he is merely doing what he is being paid to do.  She believed this is probably being used against Mr McBride and is probably what is hitting the hardest.

Mr Maake interjected to say it cannot be said this is the reason for the matter of the contract being under review. People cannot talk about the ANC and say the decision being made is because of this – this is irrelevant. Members are throwing mud but this must be avoided because it would cause trouble for the whole process. Members must be civil and deal with facts.

Ms Kohler Barnard said she was quoting directly from papers before the Committee, was not fabricating anything or giving a personal opinion. This is claimed by Mr McBride as part of one massive investigation IPID undertook. She was not saying anyone in the room would have benefited or any particular camp in the ANC would have benefited – she was just outlining what is out there and what could have caused the massive swing in the ANC opinion from six months ago to the ANC opinion today. The Member said she had the right to have this opinion.

Mr Maake said there would still be deliberation – was Ms Kohler Barnard saying the Committee has taken a decision? The Committee has not taken a decision. The Committee is only dealing with what was before it. Ms Kohler Barnard could not push Members this far – she is crossing the line. Members could do the same but this should be avoided.

The Chairperson asked that Members not lose their focus.

Ms Kohler Barnard continued that she was referring exactly to the papers before the Committee today and she did not write the numerous media reports yesterday – Members knew exactly what the headlines said but she did not fabricate or write them, the people covering this event being participated in wrote these reports. Members should not put it on her – she has tried to follow the rules as far she possibly could. The independence of IPID can be seen in a similar way to the independence of the Scorpions – at the time it was shut down it was seen to be stinging people in a particular area who did not want to be stung so it was shut down. This was made very clear at the time. The Committee must be enormously careful as people in the position they are in to take decisions that can weaken structures such as IPID or any other oversight structure. It is the job of the Committee to in fact strengthen such structures – this is the job of Members and what they are paid to do.  She was watching and listening to things which were patently untrue but it is to reach a specific predetermined goal. Of this she was quite satisfied in her own mind.

Mr Shaik Eman objected and asked how Ms Kohler Barnard can be allowed to say it is a predetermined objective. Members are expressing their opinion based on the evidence and facts before them. Members may agree to disagree but it is totally disrespectful for this Honourable Member, if she is honourable, to make a statement that there is a predetermined objective. The Committee has a purpose – must it do what Ms Kohler Barnard thought the Committee should do? Members should be given the opportunity to consider the facts before them and decide accordingly.

The Chairperson asked that Members avoid personal remarks and attributing preconceived ideas. Members should deal with the matters and debate although there will be disagreement in principle.

Mr Ramatlakane said the ANC is not the same as the DA – the DA chased Patricia de Lille out of the City of Cape Town because she refused to concede to the desalination plan which was promise money for the DA. The DA kicked de Lille out because she refused to sign the possible kick back to the DA – the ANC is not like this. De Lille is no longer there – it is a fact for people to see and she can be asked about it. The independence of IPID does not depend on Mr McBride – it is not about an individual. IPID is a creature of statute, it operates based on the law and the law decides how the body functions. Mr McBride is just the head – the argument he makes is absurd that if his contract is not extended it would pose a direct threat to the independence of IPID. IPID became an independent vote before Mr McBride joined so it is a stretch to say all the things in IPID was Mr McBride’s creation. IPID’s operations and investigations are not the responsibility of one individual to ensure the cases are prosecuted – the IPID Act details the process around investigated criminal cases submitted to the National Prosecuting Authority (NPA) for the NPA to make the decision on prosecution. It is unheard of and a fallacy to say IPID runs solely by the Executive Director and without him the doors of IPID would be shut – there is no such thing. The matters referred to by Ms Kohler Barnard were raised by IPID in a presentation to the Committee and the Committee said people should be arrested where crime and corruption is committed – as Members sat, he did not know who has been charged for this. It was said the money would be used to buy a grabber but this is absurd – how would a grabber be used in the ANC conference?   The situation was used as a red herring to get media attention. It is clutching at straws to use this matter as part of the argument for extension of contract.

Mr Mbhele would not respond to comments regarding events in the City of Cape Town and the governing party there to respect the Chairperson’s directive concerning keeping the matter the matter and to respect the integrity of the process as the Committee is not the appropriate platform for party political mudslinging and in so aid and contribute to a behavioural standard to douse the flames and get things back on track. There are two sides to the IPID independence – the Minister claims the renewal of contract would be a threat to the independence of IPID and the public perception of IPID’s independence. The Minister uses as his premise for this the allegations of misconduct against Mr McBride. Mr McBride makes the exact same claim that the non-renewal of his contract would also threaten the independence of IPID and be a blow for the public’s perception of IPID. The reasons Mr McBride advances is that the politically-sensitive nature of some of the investigations mean there would be invested agendas to use a break in continuity of leadership to then try and cut these investigations at the knees.  These are two claims making the same but contradictory argument. The Member submitted there is more substance to the argument of Mr McBride not because it is about him or that he is the sole bulwark for the independence of IPID – any other fit for purpose person in this position who had the integrity, competence and was compliant with the IPID mandate would do the same. However contextually and structurally, given the risks IPID is systemically prone to given the kind of work it does, because of the kind of individuals it goes after in terms of high-level systemic corruption investigations, this is the risk – it is a systemic risk and not a Mr McBride-centric risk. A disruption in leadership in this sense is what poses the risk. As the Member said yesterday, this is what makes this process the Committee’s Scorpions moment because of the kind of matters it impacts, capacity to investigate high level corruption and will have an echo that reverberates for a number of years going forward. If the timeline forecast going forward was less open ended and less certain, one’s fears could have been far more alleviated but this systemic risk is why the Member would argue to lean towards the argument in Mr McBride’s submission. Whether or not Mr McBride carries on, the manner in which that transition is handled, until that question is answered, one can deduce and it is a cogent argument that there is a systemic risk posed to the independence of IPID with a break in leadership if there is not a clear way forward as to how this transition would happen.

Mr Shaik Emam failed to understand the submission of Mr McBride in this case that the independence of IPID would be affected, particularly in terms of investigations, if his contract is not renewed. The Member said this because it is not the head of IPID that conducts all these investigations but to manage them. Number two, Mr McBride applied for other jobs. Number three, if he had received any of these jobs, he would then have to start 1 April 2019.  If he started on 1 April 2019, it is clear his concern is not the independence of IPID and the successful investigation of cases. The Member’s understanding is that Mr McBride failed to secure both of these positions and now wants to hang onto the particular position of head of IPID. It is clear that even in his letters months ago, Mr McBride conceded his contract would not be renewed and even went on to make suggestions that the position should be advertised. Why was the Minister not informed then that non-renewal of the contract would hamper investigations? Why was the Minister then told to advertise the position? If the investigations would be affected now then they would also be affected five or six months ago. It is also about Mr McBride securing a job for himself, hopefully head of Crime Intelligence or the Directorate for Priority Crime Investigation (DPCI), but he failed to be shortlisted and decided to hang onto IPID. This is basically what is happening. The Member could not see the independence of IPID being affected. If it is assumed the contract is renewed, five years from today, there would still be many investigations, and new investigations, so what would happen with these cases then? Life must go on. Would Mr McBride argue the Act must be changed to allow a third term? The Act is not prescriptive that the incumbent must have his term renewed – the Act acts as guide. The contract however is prescriptive and says one term although it can be renewed if warranted. The Member was   not satisfied the submission by Mr McBride convinced him the independence of IPID would be affected if his contract is not renewed. One should not forget the circumstances and current working situation in IPID. The Member understood that with all the investigations and complaints lodged with the Public Protector etc, certain witnesses were getting threatening phone calls. If one is the head of an organisation and calling the shots where people can be removed and doing what one wants to do etc and is in control of the unit where evidence comes from, what are the chances that one would not interfere with that process?  The Member understood that the independence of IPID would not be severely affected by the renewal of Mr McBride’s contract.

Mr Maake did not understand how it can be said hell would break lose if Mr McBride was removed - what does this mean? How should it be approached? Did it mean no one but Mr McBride could keep IPID in the right direction? This is going too far. It means there is some personality cult that without me, things will not go right and there will be corruption all over. In the Member’s culture, one would never say this because it would be wishing something bad to happen. The Member’s understanding is that there are various positions in IPID responsible for various areas including investigations. Is it saying South Africa and the SAPS are rotten and the only person who could deal with the rot is Mr McBride? This borders on an insult to the professional people in South Africa.

Current political context

The Chairperson elaborated in the papers, Mr McBride indicates the decision by the Minister may be mainly due to political considerations.

Mr Maake suggested the topic be struck off consideration of the Committee. It is not the duty of the Committee to deal with political matters but to deal with facts. Political matters depended on the party one belongs to and this can be done in a rally somewhere. There would definitely not be agreement and this is why Members belong to different political parties.  He suggested the matter should be stuck off the Committee’s consideration.

Ms Mabija agreed.

Ms Mmola supported the suggestion of Mr Maake.

Mr Mbhele said it might be useful to not get too hung up on the particular political context. The Member’s interest is in engaging the content of Mr McBride’s submission under this heading because it spoke to the current period in which revelations around high-level corruption and state capture and so on have been coming to the fore and are being processed and ventilated in various platforms such as Mr McBride’s reference to the Zondo Commission. It is not political in the sense of party politics. The Member was happy to relabel the topic but it was about the content and IPID’s place in this and how the renewal matter flows from this.

Mr Mbhele said the point Mr McBride makes over pages 19 and 20 of his submission relates to the Minister and political considerations on the Minister’s part. It is a claim that one cannot substantiate and so the Member did not want to engage too much on it or unpack it too much. It is however very much the case that the country is in a period and context where it has to come to grips with many things that have happened and gone wrong in the public sector. One could close one’s eyes and throw a dart at any State-Owned Enterprises (SOE) or agency in the criminal justice and one would hit something which has been corrupted, captured, compromised or collapsed under cronyism – this is the context being dealt with. IPID, through its investigations into SAPS, has uncovered, what it claims is, prima facie evidence leading to allegations and charges. It about the systemic risk to which these processes and “cleansing work” is placed in if leadership transition matters, such as of Mr McBride’s contract, are not handled with the utmost care. As the Member said yesterday, IPID is not a standard run of the mill department or public sector entity. As confirmed through the courts, IPID requires specific, careful and customised handling hence the Committee having to drive the amendment process. This, in conjunction with the context as the Member outlines, means this has bearing on how the Committee handles the renewal matter. It is not solely about Mr McBride being the top-notch candidate in this moment – that would have been known if the Minister acted late last year and advertised and started a selection process so that when the appointment process came before the Committee to either confirm or reject, there would be information to make this assessment. Right now the Committee could only ruminate on and make a determination solely on Mr McBride and not the spread of talent out there to do the job. That being the case, there are greater systemic risks to a break and discontinuity in leadership. Until the allegations as per the Public Protector preliminary investigation dossier has been clarified, confirmed or otherwise, the Committee does not have compelling substantive grounds for a deal breaker egregious enough to definitely not renew.

Mr Ramatlakane said the President has made a call that is the responsibility of everyone to deal with corruption wherever it raises its ugly head. This is the position of the ANC and government leading the country hence the Commissions, including the Zondo Commission, to deal with this. The so called current political context needs to be unmasked – to the Member it looked like the naked footwork of someone who wants sympathy and wants to use everything in the public domain to drive an agenda for certain matters. It is presented as another motivation for why Mr McBride should remain. The argument hints at saying everyone else in the country is not competent to deal with corruption and crime but solely depends on Mr McBride to fight corruption. Section 7 of the IPID Act says it is not the sole responsibility of an individual to deal with corruption or any investigation – the case will have to be presented for decision on prosecution. It was agreed earlier that allegations made must be proven. The job of the IPID Executive Director is not only to appear before the Zondo Commission but to take the docket and present it for action. Playing to the gallery does not resolve the problem.  It is a stretch to mask the real reason which is the fear that everything would fall apart if Mr McBride is not there. IPID is an institution which is not set up by an individual – the individual inherited the institution set up and drives it. There are a number of people in IPID. Investigations in IPID are not the responsibility of the Executive Director – there is a Chief Director responsible for investigations and not the Executive Director. The Executive Director gets a report. It is similar to the National Commissioner not being responsible for the investigations of SAPS as an individual. The topic of political context was not persuasive enough for the Member – the matter is masked as such but the intention is to motivate for renewal of the contract as a strongman that can breakdown Table Mountain. This is not persuasive enough for the Member and does not cut ice.

Mr Shaik Emam said one cannot deny the situation in the country currently is a matter for concern and the Zondo Commission is doing a great deal in unearthing and uncovering some weakness such as corruption and other weaknesses. This is a good exercise in any event provided something be done about it and there was consequence management. The impression is that Mr McBride is saying he is the only credible human being that can ensure whoever is corrupt will go to jail. However Mr McBride did not think he was the only credible person six months ago when he was going to leave the job and go elsewhere but now strangely enough he is the only credible person. To date, the media has been abuzz with all the allegations and statements by Mr McBride but he has never been able to prove any of them. Some may argue Mr McBride was not there for the full five year term but he was there for a great percentage of the time. The matters have gone to court but were withdrawn for lack of or no evidence. Mr McBride was playing to the media because none of the matters would have been withdrawn if there was serious prima facie evidence or Mr McBride knew what he was doing. If one looks at all the allegations against Mr McBride, statements in the media and that he could not convict anybody, it clearly means there is no substance in what Mr McBride is saying. The success of convictions or leading evidence in investigations of corruption does not end with Mr McBride and he is not really conducting these things. The Member did not know where Mr McBride gets the God-given belief that he is superhuman and would do it differently to everyone else. The Committee is interrogating a number of different aspects to determine the renewal of the contract and current political context is not the only aspect being considered. It would have been great for the country if Mr McBride could put his money where his mouth is by ensuring some of the corrupt people were convicted but he did not do this. It actually cost the country taxpayers money because all the matters that went to court brought the organisation into disrepute. The current political context in the country would not interfere with the process. Mr McBride has the right to lead evidence in the Zondo Commission even if he is no longer the Executive Director of IPID and no one would stop him. The Member submitted that Mr McBride’s submission was of no substance and not valuable to the extent, at least to the Member, that Mr McBride has some superhero role to play.

Auditor-General reports and notes 2014/2015/2016

Mr Ramatlakane said when he looked at the Budgetary Reports and Recommendation Reports (BRRRs), he saw a lot of reference to the AG reports and notes. The AG information shows there have been a number of concerns repeatedly raised by the AG year after year. This concerned the IPID financials particularly material misstatements. The Committee has over the years been concerned by the AG’s repeat findings not taken care of. Another matter raised in the BRRR was irregular expenditure – there seems to be one year where this decreased but the occurrence of irregular expenditure continues to happen. There was also the concern of meeting delivery targets. In most cases there is under-performance of the targets. The Committee has been concerned by the reduction in targets and the lowering of the bar of some targets – this was also raised by the AG. The Committee found in its reports that the performance of IPID hovers around the 42% mark on the reduced targets. The AG also raised the problem of accruals along with predetermined objectives concerns. The AG was concerned by delivery. The Committee had a number of meetings on this – more meetings than was required to meet with IPID and address matters of capacity. The 100% achievement claimed by Mr McBride in his performance assessments cannot then be accurate. He questioned if the Committee has received any information on leadership in terms of the accountability and governance framework – the Member would have liked to link that discussion with the AG reports and notes. 

Ms Kohler Barnard, looking through the documents and holistic outcomes of the four entities under the Committee’s ambit, noted three entities have the exact same sentence “these unfavourable financial health indicators may cast significant doubt on the department’s ability to undertake their projections” - this related to SAPS so presumably the Committee should be asking the same questions of the National Police Commissioner and the Private Security Industry Regulatory Authority (PSIRA). It appears only the Civilian Secretariat for Police Service is okay but the AG performance of all the other entities are nothing to shout about.

Letter from Mr Nkabinde

Ms Molebatsi saw the letter made reference to many attachments – she asked where they are.

The Committee was informed it was still being printed for Members.

Mr Ramatlakane thought the letter could still be discussed without waiting on attachments. The key consideration of the Committee is addressed in the letter, in the Member’s view. The key matter the Committee is grappling with was whether Mr Nkabinde had withdrawn the allegations as Mr McBride alleges – this is clarified in the letter, in the Member’s opinion. The letter speaks to employee complaints saying that Mr Nkabinde is a breadwinner and had to make certain decisions because of this. Mr Nkabinde also says an ethical complaint was brought about and this complaint he did not withdraw – he says he was pressurised and asked to withdraw the complaint levelled. Mr Nkabinde denies that he has ever withdrawn this matter. The letter then goes into many matters which are not necessarily part of the Committee’s work. Serious allegations are levelled which perhaps should be referred elsewhere as they are criminal in nature. Mr Nkabinde should be advised to go to the police and open up a case on some of the matters. In reading the letter, the Member was reminded of the woman who was transferred from one unit to the other and the strongman tactic. Looking at what Mr Nkabinde was saying about the labour matters, for the Member, the matter bordered on abuse of power – this is a demonstration of abuse of power. It is clear that Mr Nkabinde withdrew his allegations on the labour relations matters.

Ms Mmola said the Committee must discuss the letter. Mr Nkabinde says he has never withdrawn the complaints around unethical conduct at any stage. He says he has all the evidence on the matter and is waiting on the Committee to launch an independent investigation to get to the truth of these allegations. Mr Nkabinde goes on to say the settlement agreement has nothing to do with the complaint of unethical conduct against Mr McBride. He says Mr McBride tried his dirty tricks to include this. Mr Nkabinde says clearly he did not withdraw the complaints on unethical conduct – members now have the proof of this.

Mr Buthelezi understands the matter might require legal minds. Looking at the statement agreement, it speaks to what Mr McBride says in his submission about withdrawal by Mr Nkabinde of everything including everything sent to Parliament and the Portfolio Committee. The circumstances under which the matters were withdrawn is another matter however the signature of Mr Nkabinde is on the statement withdrawing the allegations – he could not have been forced by his lawyers to do so. The allegations were withdrawn regardless of circumstances under which it was done.  

Ms Kohler Barnard did not see reference to anything but a complaint of unethical conduct in the letter of Mr Nkabinde. It seems to relate to certain high-profile investigations. The letter makes no reference to the raft of claims such as theft of R100 000, when it was actually a payout while on suspension. The PSC did the investigation and considered all of these allegations to be unfounded.  Mr Nkabinde says he wrote to the Committee about this but she did not recall ever receiving such letter. It must be pointed out that Mr Nkabinde lied under oath – if one could do this then lying to the Committee would not mean anything. Mr Nkabinde is no longer an employee and has nothing to lose. She did not know if the letter received today assisted at all because it does not speak to the withdrawal of allegations the Committee asked about.

Case law regarding one term

Parliament’s Senior Legal Advisor explained the court has pronounced itself on the independence of institutions such as the Public Protector. The courts often look at method of appointment and if a transparent process is followed – this is seen as one pillar of independence. Another pillar of independence is reporting. Another pillar is security of tenure which is relevant to the Committee’s work. The Committee is not dealing with the matter of removal but considering whether the term should be extended. The court has said renewability of a term, in a way, undermines independence for the simple reason that if one is on a five-year renewable term, the likely inclination is that one would serve the five year term with one’s eyes fixed on the future i.e. one may conduct oneself in a manner which will seek to please the authorities deciding one’s future. This is why most institutions of a similar nature have a fixed non-renewable term so that one would do one’s work without any hope or trying to please the appointing authorities. In a renewable term, the condition could be the hope of winning a second term and this has a direct impact on the independence of the institution. The court has accepted that there is no absolute independence but these institutions need to be sufficiently independent of political interference. This is the concern amongst all the judgements dealing with a renewable term. This also explains why judges are employed for life so there is no fear of consequences when they make their judgements. This is the point the Helen Suzman Foundation makes i.e. that the renewability of the term places the institution at the mercy of the political authority. This is why the Foundation suggests allowing the term to run for another five years.  

Mr Ramatlakane asked what these court pronouncements mean for IPID. Does it have a bearing on the matter currently being dealt with? If so, is this to merely note the case law or would the Committee be obligated towards gravitating towards what was said in the judgements?

The Chairperson said the question is also about the authority of the Constitutional Court in this matter – how much weight should the Committee give to the consideration of the term?

The Legal Advisor did not believe the case law, at the moment, has any direct implication but it is something the Committee has to consider when it reviews the IPID Act. The current process of the Committee is authorised by section six. The law that governs the appointment of the Executive Director is still valid but there may be a challenge to set aside the section as being unconstitutional given the judgements outlined. Until this is done, the Committee’s current process is legitimate and sanctioned by the court given the court directive. It does not exclude the Helen Suzman Foundation from going to the Constitutional Court. The matter does not have any impact on the Committee’s process currently.

Ms Kohler Barnard asked if there is any matter in court as the Committee speaks challenging what the Committee is doing. Reference was made to the Helen Suzman Foundation going to the Constitutional Court to argue the second term should run automatically – if this is lodged during the Committee’s current process, what would the Committee do? Stop its work and wait for an outcome? What if the Committee’s process is challenged by the incumbent? Would an appointment process be able to go ahead if there is a court challenge? This needs to be explained for clarity. 

Mr Maake was under the impression that the order of the court coming directly to the Committee and referral from the Speaker are two different things. 

The Legal Advisor said there is currently execution of the order handed down by the North Gauteng High Court last week. The Helen Suzman Foundation raised its concerns that Parliament should stay out of the matter and the contract should be renewal on the insistence of Mr McBride if he has made himself available. The Minister, Mr McBride and Corruption Watch agreed the process must go on in the Committee and it was on this basis that the court order was issued. The submissions of Corruption Watch and the Helen Suzman Foundation are different in how they view the law. If anybody wanted to stop this process, the person would have to file an application for an interdict – none of the parties have done so. Only an interdict can stop the Committee’s work and no such interdict has been filed. An appeal has been filed by the Helen Suzman Foundation against the court order handed down last week and for access to the Constitutional Court.  However this would not stop the Committee’s work.

The Chairperson said the Committee still awaited the correspondence from the SSA DG on the security clearance status of Mr McBride, the response from Mr McBride to the two job applications and his comments on the PSC report. The documents are required before the Committee begins work tomorrow.

Mr Ramatlakane asked how the Committee would know if the submissions would arrive or not. It was as if the Committee was begging for information and did not know when it would come. It might be best for the Committee to agree to a deadline by when to expect the documents – if they are not received they would then not be considered. The Committee cannot work in this open-ended way which created uncertainty. The recommendations of the Committee can only take into account information before the Committee.
Are there other administrative mechanisms the Committee can use to ensure it gets these documents?

The Chairperson said the deadline imposed for the submission of further information should be tomorrow, Wednesday 27 February 2019 09h00 – this would still give the parties enough time because the Committee’s final deadline is 28 February 2019. The Committee would tomorrow look at findings and recommendation and could only work with information before it for its Report.

Mr Ramatlakane thought the deadlines of the Committee were too flexible for the Committee’s work. There is either reply or no reply and the Committee should not beg for the information.  He suggested the deadline of close of business today for the submission of the further information requested.

Mr Buthelezi would only support this suggestion if all measures were exhausted.  

The Chairperson said the Committee Secretariat must do the footwork because the information requested was not that complex.

Ms Kohler Barnard said the Committee has been given documents and expected to make comments within 30 seconds of viewing it – to suggest that cannot be done tomorrow is quite odd. The deadline tomorrow at 09h00 is fair.

The Chairperson said there was communication that the additional information of Mr McBride would be provided before the close of business today. The Committee needs to secure such confirmation of SSA now. He asked legal services if the Committee was fair in its deadlines.

The Legal Advisor pointed out the very extraordinary circumstances and tight timeframe which the Committee was working in – all the relevant parties are aware of this. The matter of time is critical. Should a party not submit information within the deadline and the Committee is of the view the information required is critical for the decision it has to make by 28 February 2019, the Committee can issue a summons to obtain that information. The concern is that a summons will have to be delivered and there would be a notice period for this – the Committee does not have this luxury of time. It is in the interests of all the role-players to provide the information requested. The concern was that of time and the barrier it posed for administrative mechanisms.

The Chairperson said the additional information requested is not complex and the Committee secretariat must do all it can to obtain the information and make it available to the Committee. The deadline for submission of this information would be 18h00 today.  

Tomorrow, the Committee would start at 10h00 to come to findings using all the information and relevant discussion on the various topics Members have discussed over these past two days. There would also be recommendations. The Committee would sit all day tomorrow to ensure the Report was ready on Thursday morning. 

The Committee agreed.

Mr Mbhele suggested the Committee afford Mr McBride the opportunity to respond to the queries Members had through oral testimony to enable interrogatory interaction on these matters. There would still be the option of a written response.  This might ease the concerns of time pressures. The Member thought the suggestion might not be very popular amongst other Members.

The Chairperson reminded the Member of the legal opinion from Senior Counsel that if there is a complex matter the Committee could make a determination on oral submission. Such complex matters were currently not before the Committee. The Committee should await the written response requested.

Mr Ramatlakane agreed the Committee said it would make a determination on whether matters were complex and required oral input. So far the Committee has not reached such determination on a complex matter. The two matters the Committee requested further clarity from Mr McBride are straightforward such as the response to the job applications. There is also concern about interrogation. He understood the spirit of the suggestion by Mr Mbhele but it might be a shifting of goalposts which can be problematic.

The Committee would await the further information required.

The meeting was adjourned.