Adoption of Interim Report

Meeting report

AD HOC COMMITTEE ON REPORT NO 13 BY THE PUBLIC PROTECTOR
25 February 2000
ADOPTION OF INTERIM REPORT

Documents Handed Out
Interim Report of the Ad Hoc Committee (Appendix 1)
PAC Response To Actions of Mr Penuel Maduna (Appendix 2)
Minutes of meeting with Madam Speaker on 20/01/2000
Report Number Thirteen by the Public Protector

SUMMARY
The committee passed an interim report which Madam Speaker had requested for the purpose of giving an indication of how the committee intended to proceed with Report Number Thirteen by the Public Protector. The time frame of three months for dealing with the report, the possibility of hearing other evidence and the need to engage the Public Protector in relation to the report, was discussed. The committee stated that they would not act as a rubberstamp but had to make an informed recommendation to parliament with regard to the adoption of the report. The committee would nevertheless not act as a court of appeal and there was no intention to dispute the findings of the Public Protector. The hearing of evidence would possibly be employed only to clarify any issues and not to reopen the investigation as some opposition members feared.

MINUTES
The chairperson, Mr A Nel (ANC), said that the committee had been given a complex task. Its brief was to consider the report of the public protector (Public Protector) in its totality and report thereon to parliament. This was clear from the brief given by the speaker at the committee's first meeting. The report of the Public Protector had to be focused on in an holistic and comprehensive manner. There could not be an isolation of certain issues, which were to be raised above others. He asked the committee for proposals on how to take the matter forward.

Mr L Landers (ANC) had listened to and considered madam speaker's comments to the committee at its initial meeting. Bearing in mind that parliament was expecting a response from the committee by 28 February 2000, it was the view of the ANC that the committee at the very least table some kind of interim report at the next sitting of parliament. This report had to give an indication of how the committee intended to proceed, together with some time frame. In this regard the ANC had put together an initial draft report.

Ms P De Lille (PAC) wanted to know whether the committee would first design its terms of reference. Secondly she asked how the consideration of the report would occur. Would this be done by looking at the statements made and evidence used by the Public Protector and then involve an interrogation of evidence for example?

The Chairperson said that that the terms of reference and the methodology precisely what the committee had to finalise.

An ANC member proposed that the Public Protector be invited to take the committee through the report and answer any questions regarding clarity. Various members agreed with this proposal.

Ms D Jana (ANC) and Mr Masutha (ANC) said that the terms of reference or mandate of the committee was quite clear - the committee had to study the report and see whether the Public Protector complied with the resolution of parliament.

Mr Landers referred Ms De Lille to page 11 of the report containing the resolution sent to the Public Protector. This contained the Public Protector's mandate. Based on this resolution the committee had to consider the report.

Ms De Lille said that she fully understood this. She was interested to know what the objective of the committee would be when considering the report. What objective did it want to achieve by considering the report? This had to be spelt out up front since this would direct the process. She said that the Public Protector had also made recommendations on how various issues and persons (such as Minister Penuel Maduna) should be dealt with. Thus the committee had to say up front that it would also consider such recommendations and agree or disagree with them.

The chairperson agreed with the proposal that the Public Protector address the committee on the report. The findings and recommendations could be clarified in this way. He said that the committee may find that the report dealt with some issues which the committee might not be best placed to deal with, in which case it might consider referring those matters to other institutions in parliament.

The immediate task at hand was to adopt the ANC's draft proposal as an interim report (Appendix 1).

Ms De Lille wanted to know, in terms of procedure whether other reports or documents relating to the whole report of the Public Protector could also be tabled.

The chairperson said that it went without saying that if there were comments on the ANC's proposal or other proposals to be made by members this could be done since the report had to be finalised before the meeting ended.

Ms De Lille then requested the Committee secretary to make copies of a PAC document to be distributed to the members. It became clear to the members that this document delved into an aspect of the Public Protector's report and the PAC's position thereon and did not take the matter of the interim report any further. Consequently the committee moved on to consider the ANC's proposal.

Mr L Ndabandaba (IFP) acknowledged the initiative taken by the ANC in producing the draft and said that the committee should look at it and make additions or improvements, which it saw necessary.

Ms De Lille wanted to know what was meant in the draft by:
" the committee may further consider referring matters arising from the report to structures best suited to deal with them" .

She said that the Public Protector and the Executive were accountable to parliament. She asked what the ANC had in mind with regard to "structures".

Mr Landers replied that this referred to parliamentary committees such as the Public Accounts and Minerals and Energy Affairs Committees, and even the Central Energy Fund and the Strategic Field Fund itself could be asked to deal with those matters where they had more expertise.

The chair added that the report also engages some complex constitutional matters and there was a Constitutional Review Committee in parliament. Without pre-empting anything the door had to be left open. In the event of the committee realising at a particular stage that it was perhaps not best placed to make recommendations, then it could make use of such structures.

There was a concern raised by a minority party member that with the possibility of having hearings and referrals to other structures, the process could go on forever. Parliament felt that it had to refer certain matters to the Public Protector since it could not deal with them on its own. Now that it had the Public Protector report it seemed as though it was complicating the matter even more.

The chairperson said that the draft interim report noted that the committee was mindful of the need to deal with the matter expeditiously. At the same time the committee had to realise that it was duty bound to do a thorough job.

Ms De Lille was concerned with the process. She said that the ANC was in fact passing a vote of no confidence in the committee. To take sections of the report and refer them to other committees was tantamount to saying that the committee was not competent to deal with the report. It was fine to call experts including those committees into a meeting, but the consideration should only be done by this committee.

Mr C Mulder (FF) said that according to the 1st paragraph of the draft it stated that the committee was established to consider the report. He said that it should in fact do so since it had the report.

Secondly, he referred to the 4^th paragraph where it said that the committee "…will consider calling evidence on the findings". He wanted to know whether the committee was going further than merely considering the present report and having its own kind of investigation.

Finally in relation to chapter 3 where it stated: "…the committee notes that the report deals with matters and makes recommendations which go beyond the terms of reference" he wanted to know whether this was in fact correct. If this was correct then at some stage he wanted a list of what was being referred to.

Mr Masutha pointed out that should the committee consider evidence, the purpose of such consideration would merely be to assist the committee to understand the context in which certain recommendations and findings of the Public Protector arose. It was not sought to rehash the process of investigation by the Public Protector. Nevertheless the committee was not a rubberstamping institution and would fully appraise itself of the issues before it took decisions.

The Chairperson asked Ms De Lille to start raising some of the issues in her document since the secretary was still busy photocopying it for the committee.
It transpired that this document delved into an aspect of the Public Protector's actual report itself around the Minister Penuel Maduna controversy and the PAC's position thereon and did not take the matter of the interim report any further. There was general consensus that this issue had to be raised when the committee in fact started considering the report.

Mr C Mulder said that if the committee's task was to consider the report of the Public Protector, he was opposed to calling anyone else but the author of the report to explain it. To ask the Public Protector to defend his report was fine, but the moment one started to ask others to give evidence on findings, they were basically getting a second bite at the cherry since they would have had their opportunities to put there cases before the Public Protector. It would be wrong of the committee to start new investigations.

The chairperson suggested that the discussion hone in on the adoption of the interim report.

Mr Masutha wanted clarity on what the actual problems were with the ANC's draft report. He said that it seemed as though Ms De Lille's only problem was the possibility contained in the report that certain matters could be referred to other institutions. He asked whether this was her only procedural difficulty. Secondly, in respect of Mr Mulder's problem with paragraph 4 relating to the committee calling evidence on the findings, he asked whether this was his only problem. If these were the only difficulties then the committee's task would be a lot easier.

Mr Mulder wanted the removal of the word "findings" in paragraph 4. As long as it remained it would seem as though the committee would want to lead new evidence with regard to the findings themselves.

A member of the ANC did not agree. He said that if there was a factual finding made one could still lead evidence on this without necessarily attacking the truth of the finding, to give it context, or to see where one was heading with the finding and what will be done with it. The idea was not to interrogate the finding itself.

The chairperson said that the ANC was simply catering for a situation where, after having gone through the report with the Public Protector, if it was found that there were areas on both the findings and recommendations that may need further clarity, then there had to be provision for this. He pointed out that the Public Protector stated in his report that he had considered about 20 000 pages of written evidence and 5000 pages of transcripts of oral evidence. The chair doubted whether the committee had any desire to repeat this or double it all.

Mr Landers stressed that there was absolutely no intention to start disputing the findings of the Public Protector. He said that he did not know Selby Baqwa (the then Public Protector) personally but with the little that he did know of him he was sure that if the committee did try and dispute his findings, he would come down on the committee "like a ton of bricks", as would madam speaker.

Mr Masutha pointed out in addition that because the Public Protector was constitutionally established as an independent institution, in his view it would be unconstitutional for the committee to act as some kind of a court of appeal in respect of the decisions or findings of the Public Protector. All the committee would be interested in was getting a better understanding so that if there was some duty upon the committee to take any of the processes or findings of the Public Protector further then the committee would be equipped to do so.

Ms Jana, in order to cater for the concerns and objections of Mr Mulder proposed that the words "where necessary" be included after the words : "…the committee will consider" in paragraph 4 of the ANC draft.

Mr Mulder was satisfied with this amendment.

Ms De Lille also agreed with the amendment but proposed that paragraphs 3 (dealing with the fact that the Public Protector went beyond his mandate) and 5 of the draft should be removed. She also wanted paragraph 6 in relation to time frames, to in fact state a "reasonable" time, and not 3 months.

In relation to paragraph 3, Mr Landers pointed out that Madam Speaker herself had made the point that the resolution of the house was quite narrowly framed and only specific things were referred to the Public Protector. She said that the Public Protector had looked at a whole range of things and his recommendations went beyond the specific matter mentioned. She did not say that he should not have done this, but was simply stating a fact. The Public Protector in his report also acknowledges having gone beyond the scope of the resolution. The ANC was not saying that it had a problem with this, but was simply saying that it noted this.

In relation to Ms De Lille's objection to paragraph 5 , Mr Landers pointed out that Ms De Lille, was in fact (in her document) doing exactly what she had now argued against. She wanted the clause in the ANC's draft stating: " the committee may further consider referring matters arising from the report to structures best suited to deal with them" to be removed. Nevertheless in her document she called on the President to deal with a matter arising from the report, and recommended the dismissal of minister Maduna. There was no response by Ms De Lille.

Members generally felt that three months was a reasonable time. The chair person said that the committee would endeavor to have the job done before this period in any case.

The draft as amended was unanimously accepted by the meeting. Ms De Lille however wanted her objections with regard to the points she had raised, noted.

The chairperson said that Mr Douglas Gibson of the DP, who had tended an apology for not being at the meeting, had written a letter to the chairperson. He had asked for two issues to be discussed by the committee in his absence. Firstly in terms of the composition of the committee, he requested that there be another DP member. There seemed to be no objection to this request. Nevertheless the chairperson said that the committee itself could not decide on such matters, since this request had to be tabled in parliament.

Secondly Mr Gibson requested that Mr Parks Mankahlana from the President's Office be subpoenaed by the committee for allegedly making some controversial statement relating to the fact that a certain minister's position and career were not at issue despite the appointment of the Ad Hoc committee to consider the report and recommendations of the Public Protector.

Mr Gibson's proposal was completely rejected by the members. One of the argument's was that the committee did not even know exactly what was said and in what capacity it was done. Normal citizens constantly made statements about committees and other parliamentary institutions and in any case it was questionable whether the committee had the power to in fact subpoena people to appear before them. The issue of members of parliament's absolute privilege to freedom of speech was also raised.

Appendix 1:
INTERIM REPORT OF THE AD HOC COMMITTEE ON REPORT NO 13 BY THE PUBLIC PROCTECTOR
The Ad hoc Committee Report No 13 by the Public Protector was established in terms of Rule 214 by decision of the Speaker of the National Assembly on 19 January 2000 which decision was ratified by the National Assembly on 21 January 2000. The Committee was established to consider the Report and to report to the National Assembly. The Committee was formally constituted on 24 January 2000.

The Committee, mindful of the fact that its terms of reference are to consider the report as a whole, proposes to deal with the Report, its findings and recommendations in a comprehensive and holistic manner.

The Committee notes that the Report deals with matters and makes recommendations which go beyond the terms of reference refering the matter to the Public Protector which add to the complexity of its task.

In pursuance of this approach the Committee will consider caIIing evidence on the findings and recommendations contained in the Report, including evidence regarding the background to the matters contained in the report and the extent to which the recommendations contained in the Report have been implemented.

The Committee may further consider referring matters arising from the report to structures best suited to deal with them.

Mindful of the need to deal with these matters as expeditiously as possible but also mindful of the scope, range and complexity of the matters dealt with in the Public Protectors report the Committee is of the opinion that it will require a period of at least 3 months to complete its work:
Provided that the Committee can approach the House with a view to extending this period if necessary.

Appendix 2:
PAC RESPONSE TO ACTIONS OF MR PENUEL MADUNA
Section 181.4 of the Constitution provides that no organ of State shall interference with a number of State appointed institutions specified earlier in the same Section. The Auditor-General is one of these institutions that are specifically named by the Constitution.

Mr Penuell Maduna has clearly violated this provision of the Constitution and an eminent lawyer like Mr Selby Baqwa; the Public Protector has duly found that the Minister has indeed violated the Constitution.

At the same time the Public Protector does both a correct thing by referring this matter to a Parliamentary Committee because Ministers are both individually and collectively accountable for their actions to Parliament in terms of Section 92.2 of the Constitution. The Public Protector however errs in recommending that an organ of Parliament should discipline the Minister. There is no Constitutional provision that allows Parliament to sanction a Minister however Section 92.3 (a) compels members of the Cabinet to act in accordance with the Constitution. Individual Ministers cannot be impeached or disciplined by Parliament even if they violate the Constitution.

There is however a Constitutional provision Section 91.2 that provides for the State President to discipline or dismiss a Minister. Against the background of Section 83 (b), which states that the President must uphold, defend and respect the Constitution, it is then incumbent upon the President to dismiss Mr Maduna for having violated the Constitution in a most unsophisticated manner.

I therefore call on the President of the country to dismiss the Mr Maduna or accept collective responsibility for Maduna's actions. If the President does not dismiss the offending (I am tempted to say, offensive) Minister, the State President himself must then face the consequences of allowing a member of the Cabinet to breach the Constitution. The State Presidents failure to dismiss the Minister can be construed as an impeachable offence in terms of Section 89(a) of the Constitution.

Patricia de Lille
25 February 2000