Legal aspects of Section 194 Enquiry into removal of Public Protector; Committee Programme

Meeting report

Briefing: Legal aspects of the section 194 enquiry into the removal from office of the Public Protector
Ms Fatima Ebrahim, Parliamentary Legal Adviser, presented the briefing on the legal aspects of the Committee’s enquiry.

Ms Ebrahim provided an overview of the events that had led to the Committee’s establishment, beginning with a motion submitted by Ms N Mazzone (DA) on 21 February 2020 and up to the report of an independent panel on 24 February 2021. The panel had found prima facie evidence of misconduct and incompetence and had recommended that the National Assembly (NA) should establish the Committee. She also provided an overview of the Western Cape High Court case wherein the Public Protector was challenging the constitutionality of the removal rules (see slides). The Public Protector had failed to acquire an interdict to suspend the removal process, but the court had reserved its judgement on the constitutionality of the rules.

Legal framework
Ms Ebrahim said that the enquiry’s legal framework depended on the Constitution and on the removal rules adopted by the NA in 2019. According to section 194 of the Constitution, the heads of Chapter 9 institutions could be removed on grounds of misconduct, incapacity, or incompetence – though incapacity had not been invoked in the Public Protector’s case. The removal of the Public Protector, or of the Auditor-General, required a finding by a parliamentary committee and a supporting vote of at least two-thirds of the NA. This was a higher threshold than that required for the removal of other Chapter 9 heads. The President could, at his discretion, suspend the Public Protector, and he was required to remove her if the NA so resolved. The removal rules defined incapacity, incompetence, and misconduct, and provided for the broad procedure to be followed.

The Constitution and the removal rules were not “prescriptive” of the Committee’s process. Because the same rules applied to all Chapter 9 heads, they could not be sensitive to the particularities of each case. It was therefore left for the Committee to determine its own working arrangements. However, the rules did outline the fundamental legal principles – or “golden rules” – that had to underpin the Committee’s decisions. These were fairness, rationality, and a constitutional process (see slides).

Objective, scope and purpose of the enquiry
Ms Ebrahim said that the Committee’s objective was to establish the veracity of the charges against the Public Protector, by determining whether the Public Protector had misconducted herself or was incompetent as alleged. Its purpose was to report to the NA with its findings in this regard, and with its recommendations regarding the Public Protector’s removal. The enquiry had a very narrow scope, limited to conduct relating to the original motion. Indeed, the enquiry was distinct from other oversight processes in that it was not open-ended.

Ms Ebrahim added that the Committee’s task was not to “rubber-stamp” the independent panel report. The panel had found prima facie evidence of misconduct and incompetence, but it fell to the Committee to consider the evidence for itself.

Structure of the enquiry
Ms Ebrahim said that the Committee had to adopt terms of reference (TOR) specifying how the enquiry would be conducted. She recommended that the TOR should address certain issues.

First, the TOR should set out the parameters for public involvement in the Committee’s processes, as required by section 59 of the Constitution (see slides). Because the Committee should not be burdened with public sentiment and opinion, Ms Ebrahim recommended limiting public involvement to parties who could “meaningfully contribute to the Committee’s fact-finding process because of their involvement in matters where the Public Protector’s conduct is in question, or their ability to share information that can assist the Committee in making a finding.” She also recommended conducting public meetings, and publicly sharing documents, unless there were compelling reasons not to do so.

Second, the TOR should decide the format of the enquiry – how the Committee would gather and consider evidence (see slides). Ms Ebrahim presented three basic options:
- Enquiry led by external evidence leader, who would bear overall responsibility for presenting evidence to the Committee and asking questions;
- Member-led enquiry with internal support, akin to ordinary oversight processes; and
- Member-led enquiry with internal and specialised external support, with external support persons providing limited assistance, such as in identifying areas of engagement and formulating questions.

Ms Ebrahim noted that the Committee’s decision about the format of the enquiry might be influenced by the fact that it had a large volume of material to consider – over 10 000 pages in the record of documents, a panel report of 119 pages, and presumably further representations from the Public Protector and from other sources. The motion consisted of four main charges, each with several sub-charges.

Ms Ebrahim said that if the Committee chose the third, hybrid format – or any other format which involved the Committee’s questions being formulated in advance – there was no reason that the questions should not be shared with the Public Protector ahead of time, to allow her to prepare properly.

Third, the TOR should decide how the Committee would handle any further evidence not attached to the initial motion (see slides).

Finally, the TOR should decide how the Committee would enact the audi alteram partem principle (“Listen to the other side”), giving the Public Protector sufficient opportunity to be heard. Rule 129(AD) provided for the Public Protector’s right to be heard in her own defence and to be assisted by a legal practitioner or other expert, though that person could not participate in the Committee. Ms Ebrahim recommended that the Public Protector should be given two audi opportunities – the second following consideration of the Committee’s draft report. 

The TOR should specify the objectives and scope of the enquiry, and address “housekeeping” issues including required resources, meeting venues, timelines, and so on. 

Ms Ebrahim said that her team would be led by the Committee in drafting the TOR, and could provide further input if needed.
 
Discussion
The Chairperson thanked Ms Ebrahim for the detailed presentation and invited contributions from other members of the parliamentary team.

Ms Ebrahim said that nobody else from the legal team was present in the meeting.

Adv Zuraya Adhikarie, Chief Parliamentary Legal Adviser, and Adv Mongana Tau, acting Section Manager: Procedural Matters, Parliament, indicated that they were present but had nothing to add.

The Chairperson said that the briefing was critical, because it would inform the Committee’s TOR, process, and work plan. He invited Members to engage with the briefing.

Dr C Mulder (FF+) said that the presentation had been very comprehensive and had dealt with all contingencies. However, he did not think that it would be necessary for the Committee to “take it that far.” The Committee’s task was to look back at things that had already happened. He understood why evidence, and the 10 000-page record, was relevant. However, the Committee’s task surely was not to “re-investigate” each of the matters with which the Public Protector had dealt. His view was that the Committee had to deal with past events and concluded matters – a less extensive task. He would prefer for the Committee to narrow its scope than for it to engage in a broad process that might occupy Members for the next three years. 

The Chairperson asked whether Dr Mulder was suggesting that the Committee should keep its scope narrow.

Dr Mulder agreed.

Prof A Lotriet (DA) thanked Ms Ebrahim for her helpful presentation. She agreed that the Committee should keep its scope narrow, and should not extend its enquiry beyond the contents of the initial motion.

Prof Lotriet said that it was important for the Committee to decide which format it would use for the enquiry – whether it would take an external-led, a member-led, or a hybrid approach. From Ms Ebrahim’s presentation, she gathered that this had to be decided before the Committee discussed timeframes, because the format would largely determine how the Committee dealt with the information before it. Even sticking to a narrow scope, the enquiry entailed a lot of work, and Members had other work outside this Committee. She therefore proposed adopting the hybrid format. She also proposed that the Committee should decide on a timeline once it had decided on a format. 

Ms M Sukers (ACDP) apologised for her poor network connection – she was on an oversight visit and was in the car. She appreciated the importance of keeping the enquiry narrow and of treating the Public Protector fairly. However, what should be the scope of the Committee’s ultimate recommendations? For example, could the Committee make recommendations about how to strengthen the Office of the Public Protector and related oversight and governance institutions, in order to improve accountability and ensure that the work of such institutions was well-integrated?

The Chairperson thanked Ms Sukers for her dedication in attending the meeting even while travelling.

Ms Ebrahim said that the Committee’s main purpose was to determine whether the Public Protector had misconducted herself or was incompetent, and, based on that finding, to make a recommendation about whether the Public Protector should be removed from office. However, there was nothing to prevent the Committee from making additional findings and recommendations. It could make any recommendation that it believed was necessary to strengthen the Office of the Public Protector – for example, it could recommend amendments to the Public Protector Act. Such recommendations were a natural part of any oversight process, because all oversight was conducted with a view to strengthening and supporting democracy. In that regard, Parliament and the Public Protector had similar roles. If Parliament ultimately found that things had not happened as they should have happened, it could certainly make recommendations about what could be improved in the future.

Mr M Gungubele (ANC) said that, like Ms Sukers, he was in the eThekwini area. He agreed with the view that the enquiry should have a narrow scope, provided that the word “narrow” was interpreted in a certain way. He agreed that the Committee should not “recreate” prior investigations, and that it should proceed on the basis of the prima facie evidence already collected. Yet the Committee was not here to “rubber-stamp” the panel’s findings. The panel’s findings were the basis of the enquiry, but Parliament now had to be given the opportunity to do what it was supposed to do and to engage with the Public Protector. This was the interpretation of “narrow scope” which he supported.

Mr Gungubele agreed with Prof Lotriet’s proposal to adopt a hybrid format. This would allow the Committee to comply with the “golden rules” mentioned by Ms Ebrahim (see slide 6), and it acknowledged that Members were not legal specialists but should nonetheless have a prominent role in the process. The Committee had to ensure that it followed procedural and technical imperatives, but also that it was satisfied with whatever substantive decision it reached as a body of Parliament. A hybrid approach would allow a specialist to “set the tone” in marking the areas for engagement, while also allowing Members to ask any relevant questions they deemed important.

Mr A Seabi (ANC) said that Mr Gungubele had said a lot of what he had wanted to say. He supported retaining a narrow scope in the manner described by Mr Gungubele. He also supported adopting a hybrid format in dealing with evidence, because the enquiry was a parliamentary process, and Members would want to have a “highly active” role. He further proposed that the Committee should take a hybrid approach to its sittings.  

Ms O Maotwe (EFF) noted that Ms Ebrahim recommended that public involvement in the enquiry should be limited to parties who could “meaningfully contribute” to the Committee’s fact-finding process (see slide 9). Who would have the responsibility of deciding, within those parameters, who participated in the enquiry? Would it be the Committee or the parliamentary technical team? The Committee did not want to be accused of excluding certain parties from giving evidence.

Ms Ebrahim replied that as she had said, the limits on public participation were intended to pre-empt a situation in which the Committee was burdened by public sentiment and opinion. The Committee would “be here forever” if it heard the views of all members of the public, who would not necessarily have the proper information or relevant evidence. How would it decide which laypersons it heard from and which it did not? It would therefore be prudent to only invite parties who could present evidence relating to the charges. For example, if the Public Protector denied a certain charge, the Committee would want to hear from people who said that they had evidence which supported the Public Protector’s claim or which could otherwise assist the Committee in making a finding – people who had access to pertinent emails, for example, or who had attended pertinent meetings. 

Ms Ebrahim said that, as in other Committees, there was an internal team – led primarily by the content advisors – which would read all submissions, irrespective of whether it ultimately advised the Committee to hold hearings on those submissions. That team summarised all the submissions and provided Members with the summary. It could also provide copies of all the submissions, if Members wished. So it would certainly not be that the team worked “in the background” and decided for itself which submissions had merit.

Ms Sukers said that she agreed with Prof Lotriet and Mr Gungubele about the hybrid format, which would allow the Committee’s process to run efficiently within its narrow scope.

Ms Ebrahim said that she had noted Members’ comments and their preference for a hybrid format.

The Chairperson said that he would summarise Members’ views, as he had understood them. Thus far, he thought Members agreed that the Committee should retain a narrow scope, limited to the initial motion. They also appeared to accept the hybrid format outlined by Ms Ebrahim, whereby proceedings would be led by Members but augmented by both internal and external expertise. Public participation would be limited to issues relevant to the Committee’s “fact-finding mission,” as outlined in Ms Ebrahim’s briefing. Members also appeared to agree that the Committee should adopt a hybrid approach to its sittings. He took it that Members agreed to other aspects proposed by Ms Ebrahim – the audi process (see slides 14 and 15), the importance of fairness and rationality (see slide 6), allowance for the Public Protector to be involved throughout the enquiry, and the various parameters for dealing with additional evidence (see slide 13). Members had not raised disagreement with any of those points. He thought these were the key issues which, once agreed upon, would form the basis of the legal team’s work on the TOR and work plan. He wanted to ensure that his summary was an accurate reflection of Members’ views.

Ms J Mananiso (ANC), Ms J Hermans (ANC), and Ms V Siwela (ANC) agreed with the Chairperson’s summary.

Mr J Malema (EFF) said that he was not sure whether his question was relevant to the current discussion, but he thought it should be raised at the outset. Given the principle of fairness, and given that the Public Protector had made a court application regarding the constitutionality of the process and the underlying rules, was it correct for the Committee’s process to proceed? A judgement was outstanding. Would the Committee be accused of trying to influence the outcome of the court case? 

Mr A Shaik-Emam (NFP) said that he wanted to reiterate Mr Malema’s question. His concern was what would happen if the Committee proceeded with its processes and the Public Protector ultimately won her case in court. There was a matter before court which challenged this process and questioned whether Parliament was entitled to pursue it. He would expect that, under the circumstances, the Committee should not proceed until the matter was heard and finalised.  

Mr Gungubele said that he would be cautious in his contribution and leave it to Ms Ebrahim to confirm his view. However, he thought that the attempt to seek an interdict to suspend the Committee’s process had failed. The court had decided that there was no legal basis for such an interdict. He did not understand on what basis the Committee would choose to suspend the process, given this positive pronouncement that there was no legal basis for doing so. He was not a legal expert, and Mr Malema’s question was important, but his understanding was that there had been a judgement in this regard.

Ms Ebrahim said that Mr Gungubele was correct that the attempt to seek an interdict had been unsuccessful. Legally, the rules were presumed constitutional unless and until judged otherwise by a competent court. Another issue was that the rules were prescriptive. That is, the rules made it mandatory, not optional, for the Speaker, and then for the Committee, to follow the process that was now ongoing.

Ms Ebrahim said that there was, of course, a risk that the Committee would be unable to continue its process, if the court ultimately found that the rules should be set aside in their entirety. Alternatively, the court might find that one or two particular rules had to be amended to be brought in line with the Constitution, in which case Parliament could make the necessary amendments and the Committee could continue with its process. But the Committee could not pre-empt the court’s judgement, and had to wait for its decision. As the situation stood, the legal position was quite clear.

Mr B Joko (PAC) asked for clarity about public participation in the process. Ms Ebrahim had said that public participation had to be limited to evidence relating to the charges against the Public Protector. Yet the Chairperson, in his summary, had said that public participation had to be limited to evidence relevant to the Committee’s “fact-finding mission.” To him, these were two different things. Was public participation focused on evidence relating to the charges against the Public Protector, or on evidence in a fact-finding mission? If the former, what were the charges against the Public Protector?

The Chairperson asked the parliamentary team whether Members’ contributions would assist them in developing timelines, a work plan, and so on.

Ms Ebrahim replied that she certainly had enough information for her team to begin drafting the TOR. Typically, it was easier to proceed from a written draft, so that Members could ask questions and suggest amendments. She proposed that her team would begin working on the TOR. They would present the draft TOR to the Committee in a future meeting and could make changes to the document as Members discussed it, so that hopefully the Committee could adopt the final TOR in that same meeting.

The Chairperson replied that Ms Ebrahim’s proposal was clear and helpful. 
 
Consideration of draft Committee programme
The Chairperson said that the next agenda item, the consideration of the Committee’s draft programme, was also closely influenced by the discussion Members had just had. The Committee needed a programme so that it did not disrupt the work of other committees. The Committee secretariat would present a preliminary, “skeleton” programme, but it contained many gaps, because Members themselves had to guide the process.

Mr Thembinkosi Ngoma, the Committee Secretary, presented the draft programme. In brief, the programme outlined the following schedule:
- 4 August: Consideration and adoption of the final programme and TOR;
- 5 August to 19 August reserved for the appointment of an external specialist, the study of documents by Members, and the issuing of notice for public submissions;
- 19 August to 2 September afforded to the external specialist to study documents, with the assistance of the parliamentary team;
- 7 September: Briefing on evidence, and identification of persons to appear before the Committee;
- 8 September to 8 October afforded to the Public Protector to consider the first audi;
- 12 October: Briefing on the Public Protector’s response;
- 13 October to 19 October: Four days of hearings;
- 21 October to 22 October: Two days of hearings with the Public Protector;
- 26 October to 29 October: Four days of deliberations;
- 1 November to 12 November afforded for drafting of the Committee report;
- 16 November to 17 November: Consideration of draft report;
- 18 November to 18 December afforded to the Public Protector to consider the second audi;
- 12 January 2022: Consideration of the Public Protector’s response; and
- 13 January 2022: Consideration and adoption of the final Committee report.

Mr Ngoma said that Members were welcome to provide input on the programme. The venue of the meetings was also to be determined by the Committee. Moreover, Members should contact the Committee secretariat if they wished to receive, by courier, hard copies of the independent panel’s record of documents, which came to over 10 000 pages. 

Discussion

Ms Z Majozi (IFP) said that there was a typo in the document. The draft programme said that the Committee report would be drafted in November 2020, not November 2021.

Ms T Joemat-Pettersson (ANC) thanked the parliamentary team for the briefing and the draft programme. The draft programme should be considered in light of the Committee’s discussion earlier in the meeting. She proposed that it should be adopted as a draft programme, and that the final programme should be presented to the Committee once it was adjusted appropriately. 

Prof Lotriet said that, according to the programme, the Committee would be deliberating during the local elections. The feasibility of this would obviously depend on the courts’ decision about the elections. She also noted that external specialists would be appointed between 5 August and 19 August. She knew from her experience on the Powers and Privileges Committee that members of committees could propose or consider names of such specialists, so that their appointment was not purely an administrative decision. Would this Committee be extended such an opportunity?

The Chairperson said that Prof Lotriet’s concern seemed to be a procurement matter.

Ms Ebrahim said that the Financial Management of Parliament and Provincial Legislatures Act prohibited Members of Parliament from serving on tender committees and from participating in any other way in evaluating or approving tenders, quotations, contracts, or other bids for Parliament. The appointment of external specialists was a procurement process, and she would raise the issue with supply chain management officials. She did not see any problem with the Committee considering and providing input on such issues as the desired skillset of the specialist. She would look at the precedent Prof Lotriet referred to and advise the Committee more fully the following week.

Mr Ngoma said that he had nothing to add. Ms Ebrahim’s office dealt with the procurement of legal specialists.

Ms D Dlakude (ANC) said that she supported the adoption of the draft programme. It was “in order” and would allow the Committee enough time to do its work.

Ms Siwela also supported the programme’s adoption. She wanted to request a hard copy of the panel report – it was a large document.

Mr Ngoma said that he had noted Ms Siwela’s request. He thought it would be best for Members who required hard copies to contact the Committee secretariat. It was a very large volume of documents – more than 10 000 pages, so 10 to 12 boxes of paper. Alternatively, Members could access the documents through the link that he had sent last Friday.

The Chairperson concluded that Members would engage with the draft programme, which was itself informed by the discussion earlier in the meeting. The Committee agreed to it as a draft, a work-in-progress, and would finalise the programme in its next meeting, taking into account all issues raised by Members. Also, it would not be fair for the Committee to meet on all days of the week, because other committees had work to do, so the Committee would have to agree on particular days and times for its meetings.

The Chairperson said that Members could access the record of documents electronically or could request hard copies from the Committee secretariat. It was best for Members to make their own preference known, so that the secretariat did not print superfluous copies. On the appointment of experts, the Committee would probably be able to provide input on the kind of skillset needed, but Ms Ebrahim would verify that and the issue would probably be finalised in the next meeting. 

Consideration and adoption of Committee minutes
The Committee considered its minutes dated Tuesday 20 July 2021.

Mr M Mahlaule (ANC) said that his surname was misspelled on the document. It was not his name but his ancestors’.

With that minor correction, the minutes were adopted.

The Chairperson thanked Members for their participation. They had directed the Committee’s work and raised questions so that things were clear from the outset. The Committee would meet again the following week.

The meeting was adjourned.