(Subcommittee) State Capture Commission recommendations

Meeting report

The meeting’s agenda was flighted.

The Chairperson asked for the adoption of the meeting’s agenda.

Mr N Singh (IFP) asked if the agenda would be just dealing with the draft minutes and matters arising or if would it also include matters such as the Parliamentary Budget Office’s (PBO) Report.

The Committee Secretary confirmed that the PBO report fell under item four of the agenda as well as other matters that would be dealt with.

Mr Singh suggested that next time this should be listed. He also indicated that he would have to leave the meeting at 10h50 as there was an on-site local inspection meeting with Eskom he had to attend. He hoped the meeting would have concluded by this time.

The Chairperson noted Mr Singh’s apology. She then called for a motion of adoption for the meeting’s agenda.

Mr Singh motioned for the adoption of the agenda and Ms R Lesoma (ANC) seconded the motion.

The agenda was duly adopted.

Apologies

The Chairperson asked if the Committee could move on to the adoption of the draft minutes from the 21st of October 2022. She asked the Committee Secretary to flight the minutes.

Mr H Papo (ANC) asked the Chairperson to go through the apologies as it was the first item on the agenda. He said this was needed to avoid marking people absent with the consideration of the apologies item.

The Chairperson thanked Mr Papo for his suggestion and asked the Committee Secretary if there were any apologies.

The Committee Secretary noted an apology from Dr G Koornhoof (ANC) who was not an official member of the Subcommittee but usually attended meetings due to his duties.

The Chairperson noted the apology and asked if there were any other apologies.

Mr Papo indicated that he would have to leave the meeting at 12h30pm as he needed to be on a flight to Mthatha to attend an employee's funeral.

The Chairperson noted Mr Papo’s apology and stated there were no other apologies. She asked that the Committee proceed with the adoption of the draft minutes.

Committee Minutes & Matters Arising

The Chairperson said the minutes had been circulated to allow the Committee an opportunity to read and identify any corrections that needed to be made. She scrolled through the draft minutes page-by- page.

Mr Singh raised his hand and motioned for the adoption of the minutes as he did not see any corrections that needed to be made.

Mr R Dyantyi (ANC) seconded the motion of adoption and the draft minutes were duly adopted.

The Chairperson asked that the Committee move to the issues that arose from the minutes. She called to Mr Masibulele Xaso, Secretary of the National Assembly.

Mr Xaso indicated that the issues raised regarding the rules that needed amending and the guidelines that needed clarification had been presented to the Rules Committee. These issues related to matters such as the backgrounds on a virtual platform, delayed replies to questions where a process was agreed upon, the issue of interpolations where the view was that the current process needed improvement but interpellations would not be reintroduced at this point and the concern of placards which was clarified and agreed upon. The issue that was still before the Subcommittee was that of an oversight committee that dealt with the Presidency. This matter was on today’s agenda.

The Chairperson thanked Mr Xaso for the clarification on the agenda of this meeting. She noted that matters that had already been dealt with and agreed upon in the Rules Committee were not part of the current meeting’s agenda.

Ms Lesoma asked the Chairperson if she could be added to the mailing list as this would greatly assist with her participation.

The Chairperson said that she would be added to the mailing list and asked Mr Xaso to start with the presentation.

Mr Xaso said the Committee Secretary would take the Committee through the presentation and he would provide input where needed. He also noted that the PBO was present and would be presenting on the work they were required to do on the issue of the Presidency. Mr Xaso added that the research office was also on standby to answer questions of clarity.

Committee Secretary Presentation: Recommendations & proposals emanating from State Capture Commission

The Committee Secretary noted that the presentation was derived from the discussion document that was circulated to the Committee. This document was on the recommendations from the judicial commission requirement to State Capture and the implications for parliamentary procedure. He said the Rules Committee decided to refer the recommendations relating to the procedure from the State Capture Commission to the Subcommittee. He noted that the Speaker of the National Assembly had received correspondence from Mr N Singh (IFP), Mr Zungula (ATM) and Mr F Shivambu (EFF) which concerned the issue of the creation of a committee to oversee the Presidency. In addition, Parliament Research Services and Mr Xaso referred to this. The PBO compiled research on certain topics and these documents and research papers were circulated to this Committee.

The Committee Secretary noted that his presentation would be followed by PBO which would deal with the oversight of the Presidency. 

A State Capture Commission and Parliament

The Judicial Commission of Inquiry into allegations of State Capture, Corruption and Fraud (the Commission) was established in 2016. The Commission was promulgated in the Government Gazette on 23 January 2018.

The Commission reported to the President who tabled the report in Parliament on 23 October 2022. The report made a number of recommendations relating to Parliament’s procedures and oversight duties. The National Assembly Rules Committee met on 23 November 2022, when it referred the matters of procedure to the Subcommittee on Review of Assembly Rules. This document summarizes each recommendation, sets out matters of principle i and proposes a way forward.

The Constitution, Parliament and Accountability

The oversight role of the National Assembly, as a collective, is spelt out in the South African Constitution –

“The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing…. by passing legislation and by scrutinizing and overseeing executive action”. Conversely, the Executive must report on matters under their control.

The relationship between Parliament and the Executive is influenced by, among other things, the separation of powers, as well as the principle of co-operative government.

The Evolution of Oversight and Accountability

Post-1994, the South African Parliament was occupied with drafting the Constitution and creating the legal architecture to support it. These included, inter alia, laws to empower members, to regulate the public service and state finances, and to consolidate the system of checks and balances. Parliament also rewrote its procedures to provide for new means of oversight and accountability.

As the legal and procedural systems were transformed Parliament shifted its focus to matters of practice, especially concerning oversight. To enable this, Parliament commissioned Prof H Corder to study prevailing practices and, from this, developed the Oversight and Accountability Model (the Model). The Corder Report promoted, inter alia, the notion of “amendatory accountability”, which requires that where deficiencies have been uncovered they be corrected, as well as an “Accountability Standards Act.”

The Model, in turn, led to an increase in capacity and the resources allocated to Parliament, as well as the enactment of legislation, the Money Bills and Related Matters Act, which empowered Parliament to amend Government budgets. This was understood as essential for the Legislature to enforce accountability.

The Assembly also continued to reform its rules.  These included rules to provide for motions to remove the President, secret ballots, and the removal of other constitutional office-bearers.

Recommendations of the State Capture Commission

The Commission opined that weaknesses in Parliamentary oversight and Executive accountability had, over time, contributed to corruption and maladministration, and it was on this basis that it recommended that Parliament consider reforms to improve its procedures. These included procedures concerned with –

-House resolutions emanating from oversight activities and responses thereto; 

-Executive reports and submissions to Parliament;

-Executive attendance; 

-The selection of office-bearers in state institutions;

-The establishment of an oversight committee over the Presidency; and

-The appointment of committee chairpersons.

 

The Commission suggested that a number of issues could/should be provided for in law, and/or Parliament’s rules. A law could provide for –

-The definitions of oversight and accountability;

-The oversight mandate of each House of Parliament;

-Minimum standards of Executive accountability, reporting obligations and remedial actions;

-Executive attendance in Parliament; and

-Matters of detail to be provided for in rules/regulations

Legal reform could be achieved by way of a new act, or by way of amendments to the Powers and Privileges and Immunities of Parliament and Provincial Legislatures Act (2004). Oversight and accountability are nevertheless the responsibility of both Houses. The question of legislative change may therefore finally belong with the Joint Rules Committee (JRC). Rules may not, however, be dependent on law and could be considered in the interim

House Resolutions and Executive Reports

First, some challenges with the implementation or otherwise of resolutions have their origin within Parliament, not only with monitoring but with the technical nature of decisions themselves. Consequently, reforms would also have to address these. In summary, the following could be considered as a basis for new rules –

-Recommendations emanating from committee activities should be substantiated and specific (e.g. include time-frames) and relate to a matter within the purview of the Assembly;

-The Speaker to maintain a record of resolutions and, in the event of a delay, liaise with the Leader of Government Business (LOGB). As a last resort, legal actions could be considered; and

-Speaker to report to the Rules Committee possibly once a year on the status of responses. 

In the case of Executive reporting –

-The Executive to report to Parliament on measures emanating from resolutions within the time-frames prescribed or, in the event no time-frames have been given, it could be 60 days; 

-In the event of a delay, a Minister to inform the Speaker of the reasons, and provide a reasonable time frame within which a full report can be provided; and

-The LOGB to submit an annual report to the Speaker on the status of Executive compliance with resolutions, for inclusion in the Speaker’s report to the Rules Committee.

Executive Attendance

The Constitution and rules envisage that Ministers and Deputy Ministers should, as part of their accounting responsibilities, attend Parliament and its committees. 

The Commission gave weight to the assertion that the Executive had, on occasion, failed to appear without adequate cause. The Commission thus recommended that non-attendance by Ministers and others should not be tolerated and that legal consequences should follow in such eventualities. 

The Powers and Privileges Act already makes it an offense for any person to refuse a summons, refuse to give evidence or willingly mislead Parliament – such actions being considered contempt of Parliament. 

It should nonetheless be noted that invoking the Powers and Privileges Act has always been considered a means of last resort and it is preferred that Parliament and the Executive cooperate before the question of a sanction is pursued. Proposals in this regard will be developed.

Appointment of Office-Bearers in State Entities

While these processes are for the most part transparent and systematic, there have been questions concerning best practice. The Commission accepted the observation that candidates for office must be subjected to a high level of public scrutiny and be appointed on the basis of merit. The Commission, therefore, endorsed the following recommendations, that Parliament - 

-Review the necessary legislation to ensure that it provides guidance on fair and objective appointment processes;

-Develop multi-stakeholder structures to oversee appointment proceedings;

-Ensure that parliamentary processes are transparent and open and involve the public; and

-Ensure that candidates are tested, inter alia, for integrity and ethics, using objective criteria.

-Ensure that the shortlisted candidates are appropriately vetted before recommendation to the Assembly.

The question of legislative review would fall outside the immediate scope of the Subcommittee. The rules could, however, provide guidance to support proceedings. Possible rules could include that, a committee mandated to recommend a candidate for appointment as n office-bearer in a State institution, must –

-Advertise for applications and provide at least two weeks in which to apply; 

-Publish any shortlist as well as the qualifications of those shortlisted before any of those shortlisted may be interviewed by the committee, and invite the public to submit written comments within this time; and

-Ensure that the shortlisted candidates are appropriately vetted before recommendation to the Assembly.

When making a recommendation, also disclose in its report to the Assembly –

-The criteria by which the applicants were shortlisted; 

-The names of persons shortlisted for interviews; and

-The qualifications and experience of those recommended.

Oversight over the Presidency

Section 55 of the Constitution requires the National Assembly to, inter alia, “provide mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it; and to maintain oversight of the exercise of national executive authority, including the implementation of legislation. Assembly Rule 225 states that, “the Speaker acting with the concurrence of the Rules Committee must establish a range of portfolio committees and assign a portfolio of government affairs to each committee….”

The Assembly has to date not established a dedicated structure to oversee the Presidency, in part because aspects of the Presidency’s budget vote have been located under other portfolios. The Commission highlighted this as a possible lacuna. The Subcommittee is presently considering this matter on the basis of members’ proposals which predated the Commission. Further appeals have since been received and a Research Paper prepared by the Budget Office (and circulated).

Appointment of Committee Chairpersons

The Constitution entrenches majority rule but also safeguards multi-party participation in Parliament.  Section 57 (2) states that - “The rules and orders of the National Assembly must provide for, (inter alia), the participation in the proceedings of the Assembly and its committees of minority parties represented in the Assembly, in a manner consistent with democracy.”

Every committee must elect one of its members as chairperson. Most Assembly committees have been chaired by a member of the Majority Party, the Standing Committee on Public Accounts (Scopa) being an exception. Scopa is, by convention (as opposed to a rule) chaired by an opposition member.

The Commission suggested that parliamentary oversight may be served better if more chairpersons were elected from minority parties. 

The Rules Committee should consider the desirability of the Commission’s proposal before a rule can be finalized.

(for the detailed presentation see Annexure)

The Committee Secretary thanked the Committee and asked if Mr Xaso had further additions to make.  He also asked the Chairperson’s permission to allow the PBO to proceed with their presentation.

The Chairperson thanked the Committee Secretary and asked if the Committee wanted to deal with the Commission’s recommendations or proceed with the PBO’s presentation first.

Mr Dyantyi said due to the overlapping nature of the matters being dealt with it would be best to proceed with the PBO’s presentation first and then discuss everything at once.

The Chairperson agreed and asked Mr Xaso if he had further additions to the Committee Secretary’s presentation.

Mr Xaso had no additional comments on the presentation.

The Committee Secretary noted that Dr Jantjies from the PBO would be taking the Committee through the presentation.

Parliamentary Budget Office Briefing

Dr Dumisani Jantjies, Director, PBO, greeted those in attendance and introduced himself. He noted that he was accompanied by his team. He proceeded with the presentation.

Analysis of a Proposal for the Establishment of a Parliamentary Committee to Oversee Vote 1: The Presidency

Introduction

This brief is a response to the request on the part of the Subcommittee on the Review of the National Assembly Rules for advice regarding the oversight over Vote 1: Presidency. In line with the request, a member of the National Assembly Rules has proposed that a parliamentary committee be established to oversee Vote 1: The Presidency. The Subcommittee on the Review of the National Assembly Rules has then requested that the PBO identify whether or not aspects of Vote 1 are being correctly overseen by existing structures, and if such gaps currently exist, how then could they be closed.

Legal framework

The Presidency not only has a legal mandate but the office of the Presidency is informed and guided by the Good Governance Framework with all applicable regulatory and legislative prescripts. It should be noted that most if not all Acts of Parliament reference the Executive Acts required for their adherence. The upshot is that the office of the Presidency plays a transversal role in supporting both the President and the Deputy President in engaging with legislation coming from Parliament.

Performance Mandate

The selected performance indicators as per the estimates of national expenditure were the following:

-Number of quarterly progress reports per year on the implementation of the annual Cabinet and forum of South African directors‐general programme

-Number of reviews on the implementation of the national strategic plan on gender-based violence with recommendations to strengthen reporting and accountability per year.

-Number of performance monitoring reports produced per year on the implementation of the Presidential State-Owned Enterprises Council work plan and decisions

-Number of economic reconstruction and recovery plan reports on the implementation of the country’s socioeconomic transformation programme per year

-Number of progress updates on the implementation of the 2022-2024 legislative programme and recommendations to the leader of government business in Parliament per year

These aforementioned outputs formed part of the Annual Performance Plan, which are then submitted to the Department of Planning Monitoring and Evaluation. The Presidency has indicated that the President reports quarterly on the implementation of the 2022- 2024 legislative programme and makes recommendations to the Leader of Government Business (LOGB) in Parliament.

Leader of Government Business

The Leader of Government Business has undertaken the following tasks:

Monitoring the implementation of the legislative programme

Introducing measures to monitor and improve the quality of legislation

According to the legal framework, it is clear that the Budget of the Vote 1: The Presidency is not excluded from any of the applicable regulatory and legislative prescripts currently in existence. It is, therefore, reasonable to expect that the oversight processes applied to the Vote 1 programme be similar to those of other Votes forming part of the entire budgetary framework.

The drawback to the current make-up of the Parliament Committees system is that Parliament lacks a specific committee to provide performance oversight to the service delivery commitments constituting Vote 1: The Presidency.

According to the National Assembly Committees, all the ministries under the function of the office Presidency have now been allocated an oversight committee with the exception of Vote 1.

The Zondo Commission of Inquiry into State Capture (the Zondo Commission) has made recommendations to Parliament to consider applying measures strengthening oversight of government. It is thus crucial to acknowledge that Parliament has already established an oversight mechanism over other ministries in the Presidency function, with the exception of Vote 1 relating specifically to the support or coordination of government activities by the President in realising, amongst others, the outcomes of the Medium-term Strategic Framework.

 

2022 MTEF Spending Priorities

The Presidency (Vote 1) has received a total budget allocation of R614 million in the 2022/23 financial year. the Presidency is estimated to spend 62.1 per cent of the total budget on the compensation of employees. Over the 2022 MTEF period, the activities of the Presidency will focus on leading and supporting the following:

Implementation of South Africa’s economic reconstruction and recovery plan

Coordination of the National Coronavirus Command Council

Operationalisation of the e‐Cabinet system.

The Presidency Vote 1 contains the following three programmes:

Administration

Executive Support

Policy and Research Services

Monitoring of the Vote1 performance and spending priorities

Parliamentary Budget Office prior analysis and reviews:

The PBO has emphasised the importance of the Parliamentary oversight mechanism ensuring that the functions of the Presidency and other branches of government all meet the requisite quality. The measurable indicators in the Annual Performance Plans (APPs) should all constitute relevant performance measurement systems able to provide efficient performance evaluation. So far, however, the analysis conducted by the Parliamentary Budget Office has shown that in many instances the indicators measuring the implementation of the 2019-2024 MTSF are not included, for example, in the current APPs. This omission of key strategic indicators has also been identified by the Office where departments have identified needs in the environment, communities, and economy without developing indicators to track the improvement of their situation over time.

Office of the Auditor General of South Africa Reviews on Vote 1: Presidency:

According to law, the AGSA audit reports contain opinion3 on the financial information of a given government department or entity being audited. However, the AGSA does not express an opinion of performance information but issues findings on the review of such information. Therefore, unlike in the case of assessing financial probity the oversight mechanism on performance information has to rely more on regular reporting on specific indicators and also direct interaction between the parties involved, the accounting officer and the oversight mechanism.

In accordance, the Presidency reports making up Vote 1 are tabled in the NA. Unfortunately, an oversight committee is currently lacking which would allow the referral of such a report once tabled in the House. It is further unclear, as to whether the performance information on the Vote 1 requires further interaction between the accounting officer and oversight mechanisms.

The Zondo Commission of Enquiry into State Capture recommendations

The Zondo Commission has subsequently recommended that “Parliament should consider whether it would be desirable for it to establish a committee whose function is, or includes, oversight over acts or omissions by the President and Presidency, which are not overseen by existing portfolio committees.” A similar structure has been implemented in the United Kingdom where the Prime Minister usually answers parliamentary questions in the Liaison Committee three times a year. The British Liaison Committee was established in 1980 to “[t]o hold Ministers and Departments to account for their policy and decision-making and to support the House in its control of the supply of public money and scrutiny of legislation.”

The PBO proposes with caution that the Parliament of South Africa may consider the UK Liaison Committee as a case study from which to learn how a dedicated committee for Vote 1 might be established

Further general recommendations contained in the Zondo Commission report for committees should be considered in the development of a new committee

Conclusion

The Presidency plays a critical role in the Executive management and coordination of government. As per the suggestions of the Zondo Commission, the overarching recommendation is that Parliament consider strengthening its oversight over the Presidency as a means of holding the executive accountable for its actions while ensuring that policies are implemented in accordance with the laws and budget passed by Parliament. There is evidence that the structures of the current Parliament oversight mechanisms may be insufficiently robust to achieve adequate monitoring of the executive by Parliament, which has led to a variety of issues expressed in the Zondo Commission findings.

South Africa’s Parliament model of oversight compares well with international experiences with regard to monitoring the activities of the office of the President. However, the current approach and provisions have proven insufficient, even if an effective system of oversight remains an aspiration for many national parliaments. Given our country’s recent experience with some of the disclosures made at the Zondo Commission, it is clear that the country may benefit from re-assessing the current tools of oversight.

The Zondo Commission has proposed one other additional mechanism in the form of a Presidential Oversight Committee. The parliament may now have to decide on the objectives of such a committee if it is to be established for the Presidency Vote 1. Nonetheless, this Committee could become an essential feature in the system of checks and balances of South Africa’s democracy should the establishment of the Committee enable Parliament and the wider public to hold Vote1: the Presidency accountable to the impact made in the name of accomplishing their strategic and programme objectives.

(For the detailed presentation see Annexure)

Dr Janjties thanked the Committee.

The Chairperson thanked the PBO for their presentation and asked to proceed to the presentation of the two letters because it was important to deal with everything at once.

These letters were from the EFF and ATM respectively.

Letters to the Speaker of the National Assembly from the EFF and the ANC

The Committee Secretary flighted the first letter which was from the EFF and asked if a member of the EFF want to introduce the letter.

The Chairperson said she’d prefer it if the Committee Secretary presented a summary of both letters.

The Committee Secretary proceeded with a summary of both letters. He noted that both letters were similar. In the case of the EFF since 2018 when the President took office there had been a lot of activities centralised within the Presidency both pre-existing and new. The EFF’s letter listed the functions, ministries, and programmes within the Presidency.

He said that an analysis had not to be done on these functions and ministries but an argument was made in the letter that these all now fell under the umbrella of the Presidency.

It was also highlighted that there was now a Ministry of Electricity and in terms of Rule 152 of the National Assembly a portfolio committee to oversee the Presidency was needed.

The Committee Secretary said in terms of Rule 152 he would have to read up on it. The EFF in essence was proposing that an oversight committee in the Presidency be established.

In the case of the letter from the ATM, the Constitutional background of oversight responsibilities in Parliament and functions of the Head of the Executive was set out. The letter mentions the macrostructure of the National Government and the President’s responsibility for it. There was mention of the re-organisation of the Executive both in general and in the case of the Presidency itself. He added the letter argued that a specific portfolio committee overseeing the Presidency was required.

The letter also spoke of the pre-existing and new functions and ministries that now fell within the Presidency and how some of these did not fit within other portfolios. This meant that a more centralised approach was needed the letter argued. The letter also noted the Presidency’s budget was not scrutinised by a committee. The Committee Secretary added that the PBO touched on some aspects that might not be specifically dealt with at the moment.

In essence, the letter recommended that Parliament consider whether it would be desirable to establish a committee whose function included the oversight of the functions of the President and the Presidency that were not overseen by existing portfolio committees.

The Committee Secretary commented that the question would then be how such a committee would be established and designed to avoid duplication of functions as some functions were already overseen by existing committees. He thanked the Committee.

The Chairperson thanked the Committee Secretary and the PBO for their presentations. The letters from the EFF and ATM on the oversight of the Presidency was a matter that had been assessed and with the Committee for quite some time.  She said the Committee should start with its discussion.

Discussion

The Chairperson listed the order in which the discussion would proceed. The Judicial Commission of Inquiry’s recommendations would be dealt with followed by the PBO’s presentation on oversight of the Presidency as brought to the Committee by the Speaker of the IFP.

Mr Singh thanked the Chairperson. He had no issue with the first matter and it was the responsibility of the Joint Committee. He wanted to address the second matter in detail. He noted that Dr Jantjies had omitted to deal with the conclusion of his report but this could be dealt with when this matter was being discussed. The PBO’s conclusions were not touched on by Dr Jantjies in his presentation. He said this could be revisited and asked that the accountability committee matter be dealt with.

Mr Dyantyi suggested that the matters be dealt with systematically to avoid the meeting being all over the place. 

The Chairperson agreed and asked the Committee Secretary to indicate each recommendation from the commission.

The Committee Secretary asked for his presentation to be flighted so the Committee could see each recommendation. He said the first three recommendations touched upon the house resolutions emanating from oversight visits and responses there too. He asked if the Committee wanted to discuss the Accountability Standards Act and whether that should be taken forward by the Rules Committee. This was the first issue the Committee needed to decide on.

He pointed to the slide dealing with the Accountability Standards Act which he noted could be called something different and suggested what this Act could include. This was a medium-term intervention that could take time and be a legacy issue of the Sixth Parliament. The rules and other issues did not need to depend on the law being devolved and could be developed otherwise. This was more of a long-term prospect.

The Chairperson thanked the Committee Secretary and said the recommendations would be dealt with step by step.

Ms S Gwarube (DA) thanked the Chairperson and agreed with the Committee Secretary in terms of the legislative overhaul. She said perhaps due to time and with 10 months left this could not be done. She recommended that the issue around the legislative overhaul relating to resolutions is included in the sixth Parliament’s legacy report for the seventh Parliament and that this Committee could tighten the rules and ensure that the resolutions were implemented.

Mr Dyantyi supported the National Assembly’s (NA) tabled recommendation. He said that the judicial recommendations must be welcomed and acknowledged but the context was important. There were three arms of the State and it was important to respect this doctrine. Judicial recommendations needed to be in line with this doctrine and where overreach between branches was detected they needed to be in a position to ensure that was not the case.

He said he was more in support of the tightening and amendment of rules which was in the purview of the Legislature and NA.

Mr Dyantyi added that even if the issue of legislation was revisited later, it would be an undesirable intervention. He said that they had the rules and could look into tightening and amending those.

Mr Papo endorsed Mr Dyantyi’s statement on the principle of the separation of powers. No arm of the State could recommend to another arm of the State how to manage its internal arrangements. The three arms were bound by the Constitution and the laws of the country which stated that an arm of State decided on its internal arrangements so long as it was in line with Constitution and rules. This principle was important to agree upon as it prevented issues of overreach. He said the issues that this Committee was going to approach needed to be done using this principle to not do a disservice to the constitutional democracy in South Africa. This applied to all the recommendations relating to what should happen internally.

Mr Papo said the rules however could be amended to ensure strength and numbers. There was a systematic scientific oversight model that was adopted by Legislature that needed implementation. This model would ensure that oversight was strengthened and not done using an ad-hoc approach but rather using a scientific process as stipulated in the well-written oversight model of the sector.

Mr Singh agreed with his colleagues that a scientific method of oversight was needed and that the Judiciary certainly could not prescribe things to the Legislature. He said however, he would support the judicial recommendations as a way forward in taking note of what arose from the State Capture Report. It was as much as they could. They needed to act on it as the Legislature which was something they were already doing when looking at the recommendation in the particular proposal tabled before this Committee.

Ms R Lesoma (ANC) said her concerns had been covered already.

Mr V Zungula (ATM) asked if he was correct in thinking that the report emanated from a commission that was looking into the State Capture issue and therefore some of the loopholes that were identified affected Parliament or stemmed from Parliament’s oversight mechanisms. He added that the report detailed mere recommendations which were not binding.

Mr Zungula said Parliament from time to time considered methods to improve its oversight mechanisms and perhaps these were the elements it could consider. He did not view the recommendations as binding or as an instruction to the Legislature from another arm of State dictating how their work should be done but rather as mere recommendations that suggested how Parliament could address a few issues. Parliament was still entitled to decide which recommendations it wanted to consider and found suitable.

Ms Lesoma said she did not intend to raise her hand and that the Chairperson would probably guide the Committee based on the comments made by Mr Zungula.

She said following Mr Dyantyi’s counsel, the matters were segmented and dealt with one specific matter at a time to ensure the meeting remained on track. This was not to say the Judiciary was wrong but perhaps there were limitations to their appreciation and understanding of the workings of Parliament and its various committees and the legislation that supported it. On the issue of the judicial recommendation, she thought the Committee was decided on but needed clarification on this as Mr Zungulu’s comment was generic and not specific as requested. She hoped Mr Zungula had not confused her as she did not want to be confused.

The Chairperson said it was agreed that recommendations would be dealt with step by step.

Mr Dyantyi said in that case he supported the Committee moving to the next item. This was because they were there to engage with the recommendations and the assumption was that these recommendations were based on particular evidence. The Committee would engage these recommendations one by one based on facts and not because they were made by a commission. Once this engagement was done it would demonstrate their acknowledgement and acceptance of the recommendations and their view on this particular issue based on the evidence and their practice on what would be done.

Mr Dyantyi suggested this was how each recommendation should be dealt with to not waste time.

Ms Gwarube agreed and suggested that the recommendations be dealt with systematically and concluding remarks be made at the end.

The Chairperson said the Committee would now be dealing with Executive attendance.

The Committee Secretary said he was unsure if the issue of house resolutions was concluded but he could be mistaken. He also noted that although legal reform was being discussed the issue of house resolution was not necessarily a legal reform question and could be a question of the rules. If the Committee agreed with the proposals around monitoring house resolutions and the obligations of the executive then they could proceed to the issue of Executive attendance.

The Chairperson said that this was the Committee’s understanding in that their rules need to be strengthened.

Mr Papo said he seconded the recommendations because the recommendations suggested their resolutions must work on the smart principle that a recommendation with financial implications could not be made without details on whether it would be funded or not. Recommendations resolved in the house needed to be based on smart principles and this included monitoring. This was better as he remembered in the Gauteng Legislature this issue was raised in the third term and recommendations not based on the smart principles could not be made. However, in terms of the recommendations of the NA, many did not have implicated costs and in this case, the issue was ensuring tight monitoring and quarterly reporting. That departments account for and include the resolutions of the house in their quarterly reports as this would assist in keeping a close eye on the decisions taken by the house. He wanted to comment on this issue as he thought the recommendations would help the Committee.

The Chairperson thanked Mr Papo and said there was a general agreement with the NA’s recommendation that the decisions made to strengthen the rules have no financial implications. She asked that the Committee move on to the next matter.

The Committee Secretary said the Commission made a general comment based on some of its hearings and it was their view that the Executive had not always attended Parliament and specifically committees when they should have. Therefore, they recommended that there be consequences for such conduct. He also noted that there was a law to compel persons to appear before Parliament in the Powers and Privileges Act and the Constitution. It was not certain whether legislative reform was needed but they did think an intermediary step was needed. A step that came before the Powers and Privileges and legal sanctions. This step would be created by a rule and would entail the Speaker intervening with the LOGB when a Minister or Deputy Minister fails to appear as requested by a committee. Their recommendation was not legal reform. However, the appropriate legal sanctions would be applied if their recommended step failed to work.

The Committee Secretary said he did know if Mr Xaso had anything to add in this regard.

Mr Papo said that the issue of strengthening the rules had been raised before the Rules Committee even before the Commission had concluded. The Deputy President had stated this was a serious issue that needed to be addressed so the term could be ended on a good note. The Speaker was requested to follow up with the LOGB on this issue. There was a clear understanding by the LOGB of the rules dispensation and questions on matters dealing with appearance. Committees needed to refrain from thinking that every time they met a Minister had to be present. Committees needed to meet without Ministers and do their evaluation work. Committees also needed to ensure meetings were not scheduled on days of Cabinet and subcommittee meetings and when Deputy Ministers appeared to say no. Committees needed to be more organised. Some committees had the view that if Ministers were not present they could not meet which was surprising as committees had their oversight programme to plan and follow up on. A balance was needed and measures had been taken and just needed to be enforced as they had only come into effect last year. The effects of the measures only started this year with the public reprimand on questions of appearance. What was needed was tighter coordination to ensure the presence of Ministers and Deputy Ministers when dealing with key areas such as budgets, annual performance plans, and quarterly reports etc.

Ms Gwarube said that the recommendation was not what Mr Papo was suggesting and that committees could not meet without the Minister. It was rather a remedy for the situation where committees were unable to get Ministers or Deputy Ministers to come to the house or committee meetings to account. This was incredibly important and there was a regression of this over the last three years. She agreed with the Committee Secretary that legal reform was not needed on account of existing legislation that allows for the sanctioning of ministers who do not adhere to summons by Parliament. She agreed an intermediary step was needed however, disagreed with the Committee Secretary’s recommendation that a committee should raise an issue of non-attendance with the Speaker or the LOGB. She suggested that a Member of Parliament and not just a committee should be entitled to approach the Speaker. This was to avoid instances in which there was no committee consensus on whether a Minister was needed to account. It should not be confined to a committee because there were minority reports and communication in committees therefore any eligible Member of Parliament should be able to raise these matters

Ms Lesoma aligned herself with what was recommended and also what was highlighted by Mr Papo. She said that between now and the submission of the report a lot was happening in Parliament in terms of internal reflection on the execution of oversight and ensuring the executive was accountable to Parliament hence Mr Papo’s point that issue of attendance had been raised with Speaker who responded appropriately. She saw no gaps that needed addressing and this also applied to the written questions that would have been raised before the Executive by the members. They needed to be responsible and assist committees. There was a timetable of cabinet sittings circulated and perhaps the LOGB could be asked to recirculate the timetable with the understanding it could not be changed. Committees submitted a programme for the incoming quarter before the end of each quarter. The issue, however, was that committees changed the programme amongst themselves without amending the submitted programme. She agreed with the Committee Secretary’s presentation and Mr Papo’s point that in committees there were items that were dealt with that needed the presence of the executive or the leader of the department. Items such as quarterly reports, budget presentations, and yearly plans. Some items were for only the committee to deal with. An impression was sometimes created that every committee sitting required the appearance of a Minister even when there is nothing for them to respond to.  In some instances, the Minister would delegate to the Deputy Minister who was accompanied by the Deputy-Generals in some instances. Committees needed to accept that Deputy Ministers, in the absence of the Minister, was an equivalent sent by the Minister to appear before the Committee.

No one seemed to disagree with this other than that they did not want to sensationalise what they were addressing. She suggested that they would monitor this and if the need arose they would come back to the Committee but as for now, they were on the right track. It was demonstrated the recommendations of the commission were being considered alongside the material conditions of what Parliament had already done. She agreed with the recommendations as elaborated on by Mr Papo.

Mr Singh agreed with Mr Papo and said events had overtaken this matter. He added that all of them appreciated what the Speaker had done in Parliament and that it was Mr Geordin Gwyn Hill-Lewis (DA) that brought this matter to a subcommittee he sat on. Interventions were then put through.

Mr Singh said in the first instance this matter needed to be discussed in a committee and the committee chair should write in to indicate whether a Member of the Executive was not being forthcoming.  This was something that occurred and members of the ruling party as chairpersons on behalf of their committees have written to the speaker.

In the first instance the process needed to be done by the committee and if the committee failed to take this up a member of the committee could then write to the Speaker for assistance regarding Executive absence. They were all on the same page in terms of accountability and processes underway at the moment.

The Chairperson that the Committee agreed that there were mechanisms and processes in place even before the report submission regarding Executive absence. The committee chairpersons when dealing with challenges of accountability from Members of the Executive needed to write to the Speaker for assistance.  It was important to bear in mind that the Executive could not be present always as they needed to do their job and so did committees.

The Chairperson asked that they move to the next item.

The Committee Secretary said the next issue deal with the appointment of office bearers in-state entities. He said the NA had a role in the appointment of office bearers in Chapter 9 and other institutions. The commission felt some processes were not consistent, there was no transparency or adequate public participation. This recommendation endorsed principles on how Parliament could go about this activity. He said in this case the commission spoke of a legal reform that pertained to an Omnibus Act about how Parliament should go about appointing office bearers. He noted that legal reforms were not within the ambit of this Subcommittee and perhaps needed to be taken up again by the Rules Committee or the Joint Rules Committee. However, they did think there could be rules in the interim that could tighten up some of the processes.

He pointed to a slide with some of the suggested rules. The Committee Secretary made an example using the South African Human Rights Commission which was accompanied by an act that governed the appointment of commissioners. Therefore, any rules would be subjected to the relevant acts and these rules would be general but would not supersede specific provisions of the acts. This would be a general approach the committee would take. He said it pertained to the application period, with the fact the public could be invited to comment on people shortlisted which spoke to the issue of public participation and the question that the NA had to vet candidates before recommending them.

What was being suggested was a law maybe in the future but the rules could be tweaked to provide general guidance to committees when undertaking this function.

Mr Gwarube said she supported the tightening of the rules. She noted that the Committee Secretary presented generic criteria that could be used and incorporated into the rules around fit for persons, transparency around the merit-based system, and qualifications. She wanted to add criteria that would be explicit in the rules that office-bearers that were required to be independent in certain institutions could not have political affiliations.

Ms Lesoma said that there was a bill from the Minister of Labour that dealt with the issue of public servants or office-bearers and political affiliations. Therefore, Ms Gwarube’s recommendation would be duplication and this was an issue of timing in terms of the report. She said the Committee needed to agree there were existing practices in place and depending on the appointment for example with Chapter 9 institution it was explicit that the committee had to agree on a fit and proper person. Then with the consensus from the committee could continue doing their work and would have agreed on what had to happen. She said in this regard Parliament was on the right track and some office-bearers were not from Chapter 9 institutions therefore Chapter 10 institutions such as the Public Service Commission would fall under this. She was behind the issue of uniformity in terms of best practices.

The committees of the Sixth Parliament were borrowing from the Fifth Parliament’s process of appointing the PP which allowed for public participation. This was her understanding but if this was not the case the tightening of the rules was needed to ensure uniformity. Her point was there were established practices in committees when it came to these appointments. However, the commission recommended reflection on the current rules and more rules. She did not agree that further legal reform was needed in this regard and there was an NCOP bill in terms of public hearings being attended to which meant they were covered in this regard. She noted there would be shortcomings but committees did have a responsibility and established procedures could be undertaken in the circumstances where appointments were made that were not in line with agreed-upon practices in place.

Mr Dyantyi said this issue was straightforward as there were existing practices on how to deal with it. He said the expansion or strengthening of the criteria at this level was not needed because adverts on office openings would be clear on the criteria on who qualifies. There were no one-size-fits-all criteria as each sector had different requirements. He said for example with the Public Protector if one was a member of Parliament for 10 years or more regardless of political affiliation one qualified to apply for the position. Opening the criteria was not needed and they needed to limit themselves to what the particular sector requires and allows for. The notion that legislation is a panacea for all issues needed to be disabused as it was not helpful. This is because the issues were sometimes not due to legislation or rules but rather leadership. Legal reform recommendations were template recommendations and not helpful. He disagreed with the Commission’s recommendation as it seemed as though they had not properly scrutinised the issue to ascertain where the real gaps were instead of putting forward the standard legislation recommendation even when it did not fit.

Ms Lesoma clarified that her example of the Municipal Structures Act had nothing to do with the business at hand.  She said it was simply to demonstrate that not everything required legislation.

Mr Papo said the amendment to the Municipal Structures Act was due to the lack of separation of powers in Local Government which in metros was only now being implemented. It was not like in the National and Provincial Governments where it was found there was a mixture of officials becoming chairs of committees. This dispensation was because the Local Government was a separate sphere with its own laws. He said therefore this example could not be used for Chapter 9 and other constitutional institutions. The reality was that people would have political affiliations as post-1994 many left politics to pursue other endeavours therefore banning political affiliations could not be done. There were office-bearers that could not be members of a political party and if they had, they had to resign from the political party. However, this notion of no political affiliation is a problem as it usually pertains to members of the ruling party who were the majority. The ruling party had many supporters and members across all sectors. The political affiliation problem was a concern to him because the issue should solely be if people meet the criteria.

He said they needed to be careful regarding political affiliation and that the example of the Justice and Correctional Services needed to be used as a template in terms of the timelines. In terms of the criteria, this differed per institution. There would be an issue with getting people to apply if the issue of political affiliation was taken up. People should not be punished for their involvement in the political struggle. He did not think this recommendation would be accepted as committees use a criterion focused on the person's qualifications and would also prejudice opposition parties. The issue that needed to be looked at was active membership and positions in the executive, not history and political affiliation.

Mr Zungula aligned himself with Mr Singh's statement that in principle the Committee needed to agree that a committee for Vote 1 must be established. The issues on how this committee would be established and work could be visited later.

He said the Constitution mandated that Parliament ensure all executive organs of the state were accountable. Meaning that all executive action was overseen and open to scrutiny by Parliament.

In terms of Vote 1, we could not confidently say it was fully accounted for. With the discussions it was understood that there were questions and debates involving the President and other mechanisms ensuring there was oversight over the President. He said however, in light of good governance and strengthening executive oversight the Committee needed to proceed with establishing a Vote 1 Committee. The issue of the mechanics of this committee would be visited later. In terms of Mr Papo's input on how it would work, the decision on mechanics could be taken later and be based on lessons learned from other jurisdictions. Parliament could in considering how other countries did things decide which would work best for South Africa

He said in principle as mandated by the Constitution executive action needed to be scrutinised and overseen by Parliament. It was clear in terms of Vote 1 there were gaps and the committee was needed to bridge these gaps.

Ms Lesoma said that the heading oversight over Presidency was misplaced as it should be oversight over Vote 1. This was because no committee in the Presidency did not report to a portfolio committee except electricity. Electricity was a programme under the President. The Committee needed to be honest and noted Mr Singh's point that this issue had been a concern for the last six years or so. It had to be accepted the Sixth Administration was paying attenuation and engaging in this matter which needed to be appreciated. In the State Capture Commission Report, there was a section that spoke to Parliament's action and that it was unfair to behave as if that nothing was being done.

She asked what the demonstrated rush was as the PBO's presentation, notwithstanding the fact that the Director did not address the recommendation, was understood to be a preliminary report. Further research would be undertaken by the PBO still to provide details on gaps and areas that needed attention.

Ms Lesoma agreed with Mr Papo's point that there were things the country could borrow from other countries. In the same breath as Mr Singh noted the South African Consitution in its development borrowed from other constitutions and that the South African Constitution was unique. No countries were wanting to borrow from our Consitution but this was perhaps a political issue.

She said it needed to be on the table that it was not fair to say that there was agreement or disagreement on this issue as this stage had not been reached yet. What was being said was that engagement was needed and consideration by the Speaker's Office on how other jurisdictions deal with such an office was needed. She said the PBO also needed time to conduct further research and when ready could present their findings in a Subcommittee where time was given to go through the presentation carefully.

Mr Dyantyi added that in light of the EFF and ATM's letters, the IFP's presentation months ago, and the PBO's presentation he found the two letters not useful. The letters were not useful and the decision made should not be based on these letters.

This had been a process in motion. His second point pertained to Mr Singh's statement on what was said in the previous meeting which was correct. It was said that the PBO needed to work and do research to assist the Committee in making a decision. What needed to be avoided was a briefcase decision which was a decision that had already been made where asking the PBO to do research was a mere formality. This was not helpful as a briefcase meant the evidence would not be considered as one already had their blinkers on. The PBO's presented work was beginning to open the Committee's eyes to where the gaps and progress were. As well as what the practices beyond South Africa were. He did not agree with Mr Singh that we need not look at other countries because South Africa was not an isolated country. The Constitution was a comparative study of other constitutions.

He said at the time the PBO was asked to do research they knew there were areas of oversight and accountability that existed. These areas included debates, quarterly sessions, and questions to the President which took three hours more than what Ministers did. He also added there was the State of Nation Address too. There were no less than four different departments under the Presidency that accounted to standing portfolio committees. In this regard, the role of the LOGB includes ministerial statements. He said after asking the PBO to do work they returned and said that the decision was that of the Rules Committee. The PBO could not pressure the Committee into making this decision their job was to present the recommendation and allow for the Committee to come to its own decision.

Mr Dyantyi said he would not be tiring this point as he could see that their work was getting somewhere and they could perhaps state the process of delivering better to the Seventh Parliament in terms of what could be done.

The PBO's presentation was an initial draft, more time was needed for them to conduct further research. This could not be ignored for the sake of wanting to make a decision soon. This made it seem as though their request to the PBO was not genuine and a briefcase decision would be made.

He said his point seemed to be close to that of Mr Papo about giving the PBO more time. He asked how much time was needed and what needed to be done in terms of research and if these questions were important for the Committee to not only rely on this kind of research because on their side there was still the matter of considering processes in other jurisdictions including the United Kingdom (UK).

Mr Dyantyi said his approach would be to identify relevant countries and perhaps as an enrichment process the Committee could take a study tour to these countries to satisfy themselves.

He appreciated that the report presented identified gaps. However, he was unsure that one or two of these gaps were part of the reconstruction and economic programme as most of the gaps seemed to fall under the administration programme. He was unsure if the other two qualified for the establishment of a committee because if it were about the economic recovery programme he was not sure a committee was needed for that. He said Mr Singh's approach was something he was connecting to. He also added the two letters from the EFF and ATM did not speak to Mr Singh's approach. His approach made mention of the accounting officer and was not about the President.

Mr Dyanti said the Committee was almost at the point where they would be able to conclude on their decided way forward and present a recommendation to the Rules Committee using the PBO's report and further research. 

He said it was not helpful to rush this process and he supported the view that their work needed to be completed and time needed to be given to the PBO. He said the Committee could decide how much time would be given for the conclusion of this work.

Ms Gwarube disagreed with Mr Dyanti and said they were now on the ground of filibustering because as the PBO had said the decision was the Committee’s decision to make. Even before the PBO was requested to do work the issue had been discussed at length within the Committee. Some of the merits were also identified even though some people didn't see them. She said they all read large volumes of the Commission’s report and knew what the issues were and at some point, they needed to introspect to decide what they were going to do about these. Ms Gwarube asked if they continued to kick the can down the road for the next administration or study tour when would they start to do the work of tightening the rules to ensure there is effective executive oversight. She said regardless of the design of the committee itself or whether this was not just about the budget but executive oversight or vote 1 there was a principled decision that needed to be made. Ms Gwarube said they could filibuster the decision until the end of the term at the be the Subcommittee’s decision. Her view was that there was enough information to decide, and it was down to them wanting or not wanting to decide. Ms Gwarube said that this was a delaying tactic.

The Chairperson clarified that no decisions would be made by the Subcommittee the purpose was to discuss the Committee’s views which would be presented in a report to the Rules Committee.

Mr Singh appreciated the Chairperson’s comment because he thought perhaps the Subcommittee would put forward a resolution on the Subcommittee’s decision. He said that it was clear however that this Committee would not agree with the establishment of a committee. It was clear that some were against the idea of a Vote 1 Committee and he noted that he agreed it should be named Vote 1 and not Presidency.  Mr Singh wanted to hear from the PBO on what else they could come up with and how long they needed to convince the Committee that oversight was needed for all executive departments’ budget allocations.

He said that it was only in the Sixth Parliament that this issue was being taken seriously and it was only until he raised it that it was moved up from below the line item. He appreciated the work the Chairperson was doing to ensure that this matter was discussed.

Mr Singh said they did not leave the country to know that executive heads of departments which were called premiers all had oversight committees on Vote 1. He asked why it should be in their sphere of government. He needed to be convinced that more time was needed, and this was what the PBO needed. He said the PBO’s presentation was detailed and spoke about what the Auditor-General and the Constitution required of them. What was left for the Rules Committee was to ensure what was in the Constitution was implemented.

He wanted to leave this meeting knowing the matter was discussed and there was no agreement, and this needed to be taken to the Rules Committee. If a debate was needed in the Rules Committee, they were prepared for this. He asked that PBO organise something before the 25th as there was Rules Committee Schedule.

Mr Singh said he did not feel good that there were not working towards a decision. He understood why in terms of politics but not in terms of good governance. In the last 8 or 10 years that when the debate on Vote 1 start it had to be said that the President could not be interrogated to the extent they wanted because a lot of the interrogation should have with their accounting officer.

He said he did not know how they would deal with the issue. Mr Singh was o the view that there was sufficient information to make a decision. He said that they needed to tighten the rules for the future, not the current situation as they could be another president from a different political party next.

Mr Zungula said as mentioned by Mr Singh in terms of the Provincial Government and their being at this level oversight mechanisms for Vote 1.  He said he wanted to go back to his initial statement that the mandate of Parliament was to ensure that there was oversight over the executive’s action. The report stated that there was a gap not noted in the letters that pertained to the lack of provision for effective oversight over executive actions.

He said this Parliament needed to take the decision to close these gaps and not leave it for the Seventh Parliament to deal with as alluded to by Mr Dyantyi. He said the Committee needed to what was required in terms of the rules of Parliament now. They needed to determine what would work for Parliament in terms of the rules and if further research needed to be conducted on the functions and design of the committee.

He said the time needed to finalise this matter could not be predicted but the Committee should not work towards giving this matter to the next Parliament.

On a principal level, the constitutional mandate of Parliament needed to be looked at. Based on the identified gaps in the report the logical conclusion was to establish a committee to close the gaps.

He said in terms of the name of the committee whether it was Presidency or Vote 1 could be refined to ensure people were comfortable with the wording. The principle of closing the gaps through the establishment of a committee needed to be dealt with.

A principled decision needed to be made and the modalities would be ironed out at a later stage. He said they were of the view the identified gaps needed to be closed and Parliament needed to be fully compliant with the Constitution in terms of oversight.

Ms Lesoma said this matter would be before the Rules Committee that members of the ANC were of the view that more time was needed to be given to the PBO. She said in the PBO’s first line in their report was to this effect and this needed to be respected. If a briefcase was going to be taken the PBO should not have been asked to do work. She said they wanted to be scientifically influenced with evidence to ensure that either way we were on the right path.

Ms Lesoma said that Mr Singh brought a new dimension to the discussion by mentioning the provincial setup. She said, however, more detail was needed on each Province’s activities. Ms Lesoma said that blanket statements were not sufficient and that what was needed was detailed information.

She said that they had made their inputs on their rationale for more time. She suggested that the Speaker through the Research Committee look at similar jurisdictions to get an idea of what was being done. Ms Lesoma said they would not be forced to say yes or no. She appreciated the urgency but a thorough job needed to be done because the decision would not be made for the current administration.

Mr Papo said the difference between the national and provincial spheres was that premiers were members of the Legislature and the President resigned as a member of Parliament. He said examples should not be used if they don't fit because the President was not a member of the NA.

This was why Ms Lesoma said a detailed assessment of what the legislatures were doing was needed. He said he was interested in what the Western Cape was doing in particular.

The Chairperson said she had listened to all the arguments and wanted to emphasise that as Parliament they always embarked on study tours to learn the best practices in countries with the same systems as South Africa. There was nothing wrong with this practice and it empowered Parliament to make sure that the people of South Africa were done right.

The PBO’s report indicated that they needed more time and resources were needed to conduct a comprehensive study. This report was rushed and was a preliminary report. This could not be ignored.

She said this Subcommittee did not make decisions but rather they processed matters. A report would be written and presented to the Rules Committee, and it was this committee that would decide on these matters.

The Chairperson said she wanted to close this matter. She said they all wanted accountability and to do and enhance their oversight work. However, this Committee was not making any decisions as a subcommittee.

The Chairperson asked to move on to the last item.

The Committee Secretary said the last item had to do with the appointment of committee chairpersons and in this respect, the State Capture Commission was brief in its recommendations. It recommended that Parliament consider whether more representatives of opposition parties needed to be appointed as chairpersons of committees.

He noted that at present there was no legal obligation to do this it was a question of political agreement. He said this could be seen with the Standing Committee of Public Accounts (SCOPA) and why there was an opposition party chairperson. It was due to a political decision. The question of whether the Rules Committee supported this view and perhaps at the beginning of each Parliament there had to be discussions on the appointment of more chairpersons. He said the other possibility pertained to the rules, but these were difficult to draft because political circumstances changed, and it was difficult to determine how many committees needed to be chaired by an opposition party and which opposition party.

Mr Papo said this recommendation should not be accepted because there was no coalition government at the national level. He said the issue of SCOPA was a practice, not a law or rule. Therefore, this recommendation would not be correct unless there was a coalition where people could share committees which there wasn’t. He said the recommendation was a non-starter. 

Ms Gwarube said that she agreed with the recommendation about legislative changes, and this would be a political agreement. However, she disagreed that he would be up to an agreement between any political party with another. She said that this was why it was important for them to introspect on they were here. Ms Gwarube said they were here because for ten and half years Parliament had been found wanting in terms of holding the executive to account and had regressed. The report before the Committee spelt out in great detail to the entire country how Parliament had failed to do what was meant to be done.

She said that although the recommendations were not binding it had to be noted that there was something wrong with oversight being done. Ms Gwarube said that it did not help address issues of oversight to simply dismiss recommendations as non-starters. She said the mood of the meeting seemed to be that these recommendations were non-starters and numbers would dictate the decision made in the Rules Committee.  She said that there were not here by the advent of time but because they had failed. If they did not correct, they would go down as the Parliament that sat on the report that said Parliament’s processes did not work. Ms Gwarube said if the decision was that the matter would be considered then so be it, but the recommendation and opposition parties chair committees had merit. It was an international practice and had been implemented in provincial legislatures.

The Chairperson said that Committee when making their point needed to make their point without tying the Subcommittee into it as they were still discussing the matter.

Mr Dyantyi said this was a simple matter. He said he had indicated upfront that this committee needed to be vigilant of the doctrine of separation of powers. Mr Dyantyi said this was one classical example that drove straight into this area. He said what they should say was that the commission’s recommendation was misplaced and misdirected. The Commission’s attempt was about how you achieve robust oversight and there this could only be achieved through the appointment of chairpersons. This view he said was misdirected and it had to be said as such. This Committee was engaging with their recommendation.  Mr Dyantyi said if they wanted to get to what was meant to be effective oversight it had to be noted that it had nothing to do with who chaired which committees.

He said in the Western Cape he was part of the opposition but still drove effective oversight and this was not because of chairing communities. The only committee in the Western Cape chaired by the opposition was that of SCOPA and this applied to the NA.

Mr Papo said the difference between the national and provincial spheres was that premiers were members of the Legislature and the President resigned as a member of Parliament. He said examples should not be used if they don't fit because the President was not a member of the NA.

This was why Ms Lesoma said a detailed assessment of what the legislatures were doing was needed. He said he was interested in what the Western Cape was doing in particular.

The Chairperson said she had listened to all the arguments and wanted to emphasise that as Parliament they always embarked on study tours to learn the best practices in countries with the same systems as South Africa. There was nothing wrong with this practice and it empowered Parliament to make sure that the people of South Africa were done right.

The PBO’s report indicated that they needed more time and resources was needed t conduct a comprehensive study. This report was rushed and was a preliminary report. This could not be ignored.

She said this Subcommittee did not make decisions but rather they processed matters. A report would be written and presented to the Rules Committee and it was this committee that would decide on these matters.

The Chairperson said she wanted to close this matter. She said they all wanted accountability and to do and enhance their oversight work. However, this Committee was not making any decisions as a subcommittee.

The Chairperson asked to move on to the last item.

The Committee Secretary said the last item had to do with the appointment of committee chairpersons and in this respect, the State Capture Commission was brief in its recommendations. It recommended that Parliament consider whether more representatives of opposition parties needed to be appointed as chairpersons of committees.

He noted that at present there was no legal obligation to do this it was a question of political agreement. He said this could be seen with the Standing Committee of Public Accounts (SCOPA) and why there was an opposition party chairperson. It was due to a political decision. The question of whether the Rules Committee supported this view and perhaps at the beginning of each Parliament there had to be discussions on the appointment of more chairpersons. He said the other possibility pertained to the rules but these were difficult to draft because political circumstances changed and it was difficult to determine how many committees needed to be chaired by an opposition party and which opposition party.

Mr Papo said this recommendation should not be accepted because there was no coalition government at the national level. He said the issue of SCOPA was a practice, not a law or rule. Therefore this recommendation would not be correct unless there was a coalition where people could share committees which there wasn’t. He said the recommendation was a non-starter. 

Ms Gwarube said that she agreed with the recommendation about legislative changes and this would be a political agreement. However, she disagreed that he would be up to an agreement between any political party with another. She said that this was why it was important for them to introspect on they were here. Ms Gwarube said they were here because for ten and half years Parliament had been found wanting in terms of holding the executive to account and had regressed. The report before the Committee spelt out in great detail to the entire country how Parliament had failed to do what was meant to be done.

She said that although the recommendations were not binding it had to be noted that there was something wrong with oversight being done. Ms Gwarube said that it did not help address issues of oversight to simply dismiss recommendations as non-starters. She said the mood of the meeting seemed to be that these recommendations were non-starters and numbers would dictate the decision made in the Rules Committee.  She said that there were not here by the advent of time but because they had failed. If they did not correct they would go down as the Parliament that sat on the report that said Parliament’s processes did not work. Ms Gwarube said if the decision was that the matter would be considered then so be it but the recommendation and opposition parties chair committees had merit. It was an international practice and had been implemented in provincial legislatures.

The Chairperson said that Committee when making their point needed to make their point without tying the Subcommittee into it as they were still discussing the matter.

Mr Dyantyi said this was a simple matter. He said he had indicated upfront that this committee needed to be vigilant of the doctrine of separation of powers. Mr Dyantyi said this was one classical example that drove straight into this area. He said what they should say was that the commission’s recommendation was misplaced and misdirected. The Commission’s attempt was about how you achieve robust oversight and there this could only be achieved through the appointment of chairpersons. This view he said was misdirected and it had to be said as such. This Committee was engaging with their recommendation.  Mr Dyantyi said if they wanted to get to what was meant to be effective oversight it had to be noted that it had nothing to do with who chaired which committees.

He said in the Western Cape he was part of the opposition but still drove effective oversight and this was not because of chairing communities. The only committee in the Western Cape chaired by the opposition was that of SCOPA and this applied to the NA. Minority parties did not usually get to chair committees. Mr Dyantyi said in terms of section 57 of the Constitution this was an overreach the Commission could not dictate to the legislature. Through the elections they had been voted on the strength of each party which was recognised in the Constitution there could not be a rule that diluted this. He said section 57 was about the internal arrangements, proceedings and procedures of the NA only the NA could determine its internal arrangements and this included the arrangements about committees.

Mr Dyantyi said the Commission had no business making recommendations on the arrangements of committees because it was a clear overreach.

He said the issue of oversight was an indictment on how the Fifth Parliament ran things but the Sixth Parliament should never be made to pay for those inefficiencies and failures. Mr Dyantyi said it needed to be indicated upfront that the sixth Administration had demonstrated robust oversight and this was evidenced by the Justice Committee’s dealing with the Thabo Bester case. The Justice Committee across all political parties demonstrated in their articulation and intervention what was meant by playing an oversight role. 

He said none of this had to do with the appointment of chairpersons. He said that the strength of the ruling party in NA based on the elections could not be diluted. He said that time should not be wasted on this issue. The Subcommittee should report to the Rules Committee that this recommendation was misplaced and misdirected and if there was a request to see how oversight was conducted they should demonstrate that it had nothing to do with appointing a chairperson from an opposition party. The example of SCOPA was not a rule but a practice that was decided on.  Mr Dyantyi said he did not want the subcommittee to deliberate further on this issue as the Commission had no basis to make this recommendation.

Mr Singh said he was inclined to take a softer view than his colleague on this matter because the operative words in the last paragraph were “suggested” and “may be served”. He said there were no prescriptions. Mr Singh said it would be no sweat off their back to note what the Commission had said referring to political principles. He said because, at the end of the day, this would be a political decision. Mr Singh said as mentioned by Mr Papo that when moving towards an election there was give and take and coalitions. Part of this could be something the largest party could put forward.

Mr Singh said that the recommendation should not be discounted but noted as a suggestion that was not prescriptive. Parties then should be left to decide amongst themselves moving forward.

He said this was not something the Rules Committee could consider in terms of amending the rules specifically. However, It needed to come out of a political discussion as they moved forward as a work in progress.

Ms Lesoma said the point made by Mr Singh changed her response. She said that the recommendation from the Commission was not desirable for the reasons advanced by Mr Dyantyi and Mr Papo. She said they could not have a coalition of a special type. Ms Lesoma also added the perception that one’s oversight capabilities were limited because one was not the chairperson and had no concrete evidence to back its accuracy. She said the chairperson did not dictate what the committee said but rather the committee engaged on a matter and the chairperson summarised the engagement.

The Chairperson thanked the Committee for their deliberations on the matter. She conquered with inputs from Mr Papo, Mr Dyantyi, Mr Singh and Ms Lesoma that it was a political matter and they were not in a coalition government. She said the issue could only be noted and the rest was up to the political parties to decide on what to do with their powers.

The Chairperson thanked everyone for their participation and noted that their report would be taken to the Rules Committee which would sit on Tuesday. She thanked the Committee again.

She said this committee would not agree because this was where matters were processed and then taken to the Rules Committee where further work was needed. She thanked the Committee, the support staff and Mr Xaso and his team. The Director of the PBO was also thanked for their attendance.

The meeting was adjourned.