Public participation process in respect of citizen engagement on COVID-19 related matters

Meeting report

Opening remarks by the Chairperson

The Chairperson welcomed the Committee to the Ad-hoc Committee on Covid-19 of the Western Cape Provincial Parliament. Two apologies had been received by Ms L Botha (DA) and Mr F Christians (ACDP). The rules of the meeting were explained to Members.

The Chairperson said that the Public Outreach Department of the WCPP would be joining the meeting in the latter part of the conversation. Members were informed that the meeting for the day had to be on citizen surveillance. Follow-up invitations had been sent to the Minister and the National Department of Health (DOH). The Minister of Health sent an apology for his absence. He said that the new Director-General of the Department of Health had only started that week and therefore for obvious reasons would not be able to brief the Committee.

A letter had been received by the Department of Home Affairs (DHA) on Monday indicating that the DOHA in fact had no role to play in the maintenance of the database for citizen’s surveillance during the Covid-19 period. Therefore it would not be necessary for the DHA to brief the Committee.

It was proposed that a third letter of invitation be sent to the DOH to present to the Committee after the conclusion of the constituency period on either the 15 July or the meeting thereafter.

Ms W Philander (DA) supported the proposal to invite the DOH.

The Chairperson thanked Ms Philander adding that the Committee had clarity now on who the role players were and would issue an invitation to the DOH an entire month before the time.

Discussion

Mr P Marais (FF+) asked if the meeting was scheduled for 15 June or July.

The Chairperson said that the proposal was for 15 July and would be on the theme of citizen surveillance.

Mr Marais considered the date of 15 July as quite late and wanted to know why it could not be done within the current month.

The Chairperson reminded Mr Marais that there was only one Ad Hoc Committee meeting next week which was quite jam-packed already and thereafter there would be constituency weeks and therefore the earliest date would be 15 July.

Mr Marais explained that he had asked the question in light of the High Court ruling regarding the invalidity and unconstitutionality of all the lockdown regulations issued by the various Ministers and that the power in this area lay only with the Minister of COGTA (Cooperative Governance and Traditional Affairs) and could not be delegated to the other Ministers. It was emphasised that the judgment had massive implications for all Ministries and should be seen as a matter of urgency. Interpretation by the public seemed to be on the side of people not having to observe any other regulations in terms of that court order.

The Chairperson responded that the Procedural Officers had tried for several weeks to get the DOH before the Committee. The Committee would have to pose additional questions on what that meant for citizen surveillance. In the first place, those regulations had been deemed to be unconstitutional. It was suggested that a written report be provided to the Committee by the DOH instead of a briefing emphasizing that a briefing would provide not only more engagement but proper understanding of the underlying issues and answering of questions.

Ms D Baartman (DA) expressed support for the proposal by the Chairperson and seconded the motion by Ms Philander to invite the DOH.

Mr R Mackenzie (DA) expressed that he shared the same concerns as Mr Marais regarding the judgment that had been passed by the High Court. The judgment gave the Department 14 business days to come up with new regulations or alternative regulations that were rational. Citizen surveillance was an important matter and given the verdict by the Court of irrationality and unconstitutionality, it was important that the Committee knew what was actually going on and who was responsible for what because one could not write to the DG in the President’s Office and the State Security Agency without correct knowledge of the situation. He believed that the DOH could not require the technology needed without the State Security Agency and other Departments backing it.

The Chairperson explained that the DOH was responsible for the database on contact tracing and was in fact given that responsibility by regulations which had not included the State Security Agency. He emphasized that the whole issue occurring gave even more reason as to why it was of vital importance that the conversation with the DOH occurred in order to get an all-encompassing understanding as to the DOH and other Departments roles and functions going forward.

Mr B Herron (GOOD) suggested that the provincial DOH be included in the briefing in order to get a full picture on contact tracing because while the National DOH may have held the database, the implementation of asking those who had tested positive to identify their contacts rested on the frontline staff of either the Provincial DOH or community health workers. Whilst engaging with healthcare workers he noted that there seemed to be a failure at that point.

The Chairperson stated that the database being created by the national DOH allowed them to acquire cellphone companies to trace citizen’s movements if that citizen was suspected of being a carrier of the virus. The questions would then be as to what would happen to that information; how citizens would be informed after six weeks that they were being surveilled; what safety measures were in place to protect the privacy of the database and the privacy of the citizens, etcetera. The responsibility was held by the National DOH according to her understanding.

Mr C Dugmore (ANC) requested both the national and provincial Departments of Health so that the information received could be managed and used effectively. Regarding the recent judgment he explained that he believed that the current regulations would remain in place for the next two weeks and during the amendment process so that the Members of the Ad Hoc Committee and the community would be able to make submissions to the National Command Council. He believed that the Ad Hoc Committee should hold discussions around the amendment process if it convened before the 14 days were complete. Lastly, in relation to the population of learners going back to school he believed that it was important to inform the public that regarding the decision by the NEC in the Western Cape that if parents and school governing body’s felt that the school was not ready to go back then an alternative road could be taken. Schooling should not only involve the DOH but anyone who could add value to those discussions.

Ms N Nkondlo (ANC) wanted to know what exactly the Committee was seeking on citizen surveillance. She supported the notion of inviting the DOH and felt that the engagement would be better. However she was not opposed to written responses.  She proposed that the legal team of the Committee be assigned to explain the judgement and its implications in order to understand the legal point of view and therefore appreciate the judgment. The submission by the Legal Department could be in the form of notes on how to understand the judgement ruling and its implications.

Mr D Mitchell (DA) agreed with Mr Marais and officially proposed that after the 14 days had passed, an Ad-hoc meeting be convened with the concurrent programming authority where the government was invited to present to the Committee how they dealt with the maintenance of the outcomes post the 14 day period. The theme of citizen surveillance could be moved to a post-constituency period.

The Chairperson stated that there were three proposals which she would like to put to the Committee:

• Ms Nkondlo’s suggestion that there should be a note/briefing from the legal department on the implications of the judgment ruling. There were no objections to this proposal.
• Mr Mitchell’s proposal that an Ad Hoc meeting be convened during the constituency period. There were no objections to this proposal and the request would be made to the programming authority.
• Mr Mitchell’s proposal was that the citizen surveillance invitations be moved to the post-constituency period which would fall in July. There were no objections to this proposal.

There were no objections to any of the proposals and therefore they would be recorded as recommendations by the Committee.

Mr Herron apologised that he had not realized that the provincial DOH would be presenting next week. If it had not already been decided he asked if the topic of contact tracing could be added to the agenda.

Mr Marais recommended that with regard to the Ministers who had no legal right to interfere with the powers and functions bestowed on the provinces, that the Committee provided recommendations on how they could manage Covid-19 in relation to those powers and functions.

The Chairperson asked if it could be proposed that the Committee looked at that particular element when it convened after the 14-day period.

Mr Marais responded that they had already waited so long so another 14 days would have to do. However, they needed to find out the extent of their over stepping their powers and how far they could go in interfering in the legal arena in provincial affairs.

The Chairperson stated that the proposals and amendments had been noted and asked if there were any objections. There were no objections to the proposals.

Mr Dugmore asked if the Chairperson could indicate what day the provincial DOH would be coming.

The Chairperson responded that next week Wednesday during the usual Committee meeting timeslot.

Ms Nkondlo wanted to check that since the DOH would be coming in the next week if the recent announcement regarding the no testing being done for those under the age of 55 years could be included. Clarity was needed on the matter urgently as the media reported on it and citizens were unhappy regarding the announcement.

The Chairperson stated that the issue was an important one and a follow-up letter would be sent regarding an understanding of the new testing regime.

Mr K Sayed (ANC) proposed that a briefing be received by the MEC and Department on the readiness for the reopening of schools on 8 June, and an explanation be provided to the Committee regarding the experience in the current week as some schools went ahead with the reopening on the initial date that had been set.

The Chairperson expressed that she unfortunately felt there was not enough time for a briefing by the Department of Education. She assured Mr Sayed that a report had been requested by the DOE which included all the issues he had mentioned in the current meeting and the Standing Committee on Education meeting. This report should reach the Committee by Tuesday next week so it would be able to be discussed and tabled and then a determination would be made on whether the Committee would require the DOE to come and brief them.

The Chairperson asked if the Committee could move onto the second part of the agenda which was the discussion on the public participation process or citizen engagement on Covid-19 and related matters. A draft program which was still a work in progress had been circulated, however some preliminary discussions had occurred last week and the Chairperson had hoped that the Committee could further that conversation in the current meeting and look at how to deal with the public participation process.

Briefing on the Public Participation Process or citizen engagement on Covid-19 and related matters

The Chairperson asked if umbrella bodies/federations or formations that represented many voices within a particular area of interest be approached in order to gain a broader understanding from large representative bodies.

Mr Dugmore stated that while it was obviously a useful criteria to be looking at large organizations which had an impact, it was also a real danger as many areas which they agreed to cover were locally-based, community-based  organisations and NGOs that could truly give valuable feedback, comments and contributions to the Committee. He explained that he agreed with the broad approach suggested by the Chairperson; however he appealed for flexibility for really important consultations or contributions that would enrich the work which the Committee and NGOs were doing.

The Chairperson apologised and stated that the WCPP Public Participation Outreach Department had joined the meeting and welcomed them. The delegation had joined the meeting and would be offering guidance, support and answering questions to assist the Committee in its public outreach Efforts. The delegation included:

• Ms Sunelle Fouche, Director: Public Engagements at the Western Cape Provincial Parliament;
• Mr Thembalethu Keswa, Manager: Public Education and Outreach at the Western Cape Provincial Parliament; and
• Mr James Retief, Manger: Communication and Information at the Western Cape Provincial Parliament.

The Chairperson welcomed the team and thanked them for offering to support the Committee.

Mr Marais wanted to know what the purpose and outcomes of the whole public engagement and participation exercise was.

Ms Nkondlo stated that she took the view and supported that the Committee could make return submissions to the process so that what was done during public hearings could be integrated and consolidated as part of an input from that particular sector.

Mr Sayed stated that in addition to calling School Governing Bodies (SGBs), teacher unions should also be invited to engage with the Committee. He explained that he had submitted the proposal in writing the night before so he sought affirmation that the Procedural Officer had received it and that it would be tabled.

In response to Mr Marais question, Mr van der Westhuizen said that he believed that the purpose of the public participation process was to determine and understand how Covid-19 and the responses from Government at various levels had affected people. It helped the Ministers, Premiers, Presidents and colleagues at the National level and the Command Council to get a reflection of how the choices they had made affected people and what possible solutions were being presented by those who were experiencing the situation firsthand.

Mr Dugmore stated that it would be very useful if the Committee could in their different consultations inform people about making representations to the Command Council. There were national, provincial and local spheres within a government and he believed that people needed to be aware regarding where things needed to be raised and at what levels. He believed that it was very important that even after the Committee had discussions and heard people’s views on how they would then continue to pursue access to government or access to resources etcetera, they should always try to assist and advise on how to do things during a lockdown.

The Chairperson responded that Section 118 of the Constitution of the Republic of South Africa stated that ‘facilitation of public participation and involvement in the legislative and other processes of the Legislature and its Committees had to be adhered to’ – it was therefore a constitutional requirement that the Legislature included public participation in its work. It was very important to hear from citizens what their experience with Government and various other organizations had been and what the major issues were that people experienced. This would assist in fixing problematic areas when conducting the service work of the Legislature and various levels of government.

Regarding Ms Nkondlo’s submission, the Chairperson explained that there were two legs to the public participation process. One was through a series of engagements in Committees based on the themes and the other was when the Committee would publish their report and invited written submissions from all sorts of organisations, entities and citizens.  Advertising would be sent out and general written submissions in response to invitations. An opportunity for Members of the public to submit WhatsApp or voice notes as well on the pandemic itself and their experiences would also be accepted.

Once concerns were raised and voices expressed, the Committee would be in a position to make recommendations immediately as they had been doing. Using the example of a lack of information on a particular issue; it was explained that the Committee could recommend on that same day that a leaflet be produced by the relevant Department or provided to the Committee which they could then provide or distribute to their various constituencies. By doing that they were being quite proactive in how they assisted in response to the complaints received.

It was proposed that the Members agree to the initial proposal that the Committee looked principally at inviting umbrella bodies, federations or formations that represented many voices. However, if Members had specific individuals or NGOs in mind this could be forwarded in writing to include them in the overall program.

Mr van der Westhuizen proposed that the Committee wrote to the Minister of COGTA in order to get a response on the opportunities that were created for public participation regarding some key sectors in the Western Cape economy.

The Chairperson responded that a proposal had been drawn up to ask for a written response from the Minister of COGTA with regard to what public participation had taken place during the drafting of the regulations for key areas.

Ms Nkondlo asked if the Committee could possibly consider the issue of how governance had been affected by Covid-19 in general. She suggested that the Committee started with it in a much more systematic way by considering the issues and the implications of governance across the three spheres of government and how they had been impacted upon.

The Chairperson noted the submissions made by the Members and asked if Members would please submit their suggestions in writing to the Procedural Officer to be included in the meetings.

The Chairperson stated that on the theme of health readiness they had been looking at a briefing by private hospitals on their readiness for Covid-19. The intention was to have a proposal to have engagements with survivors of the virus and their journey through the health system as well as engagements with the hospital facilities board.

Regarding protection of the vulnerable and people with disabilities, it was proposed that the Committee speak with the Department of Social development that had recently released some guidelines on the prevention and management of infections in long term care facilities.

It was also proposed that the Committee looked at engaging with independent schools, particularly the umbrella body for private schools on how they had been dealing with the pandemic and ensuring the safety of their learners and teachers. It had been proposed previously by Mr Sayed to not only include school governing bodies but also include the RCL (Representative Council of Learners).

Regarding economic recovery support and livelihoods, it was proposed that the Committee be briefed by the Chambers of Commerce which was the overarching body that represented businesses. Secondly, an engagement with labour relations was proposed, including inviting the umbrella or federation of union representatives that looked at members both in health, education and the provincial government as a whole.

After this the Committee would be looking at public hearings based on the input that had been received by stakeholders and organisations. It was noted that the public hearings may be several days or even one day only, but it could not be preempted and was entirely dependent on the responses received.

While Ms Botha had tendered her apology, she had requested that the Committee look at and include the overarching organization that assisted with bereavement and counselling. This because the nature of the virus meant that many people were not able to say goodbye to their loved ones and funerals were limited given that the virus could spread easily at those occasions. It obviously caused a lot of trauma for the families and loved ones of those who succumbed to the virus. There were no objections to the proposal.

Mr Mackenzie suggested that when the Committed invited the body on burials and funerals, it ought to invite the relevant authority because the City of Cape Town or another Ministry could be dealing with that matter.

Mr Marais expressed his happiness to see the bipartisanship that had been developing in the Ad Hoc Committee. The main actor in the whole saga should be the Premier. He suggested that the Premier be invited to tell the Committee what he and his Cabinet had discovered in the meantime. He declared that he wished to see the Premier in the next meeting if the Committee was to truly fulfill its oversight obligations.

Ms Nkondlo was not sure whether the Committee could actually set up a mechanism that could consider how various things that the Committee had been asking the various Departments about had been answered. Regarding the public engagement process she stated that the Committee ought to make hotspot areas a priority when it came to oversight and support work that had been done in those communities. She suggested that a mechanism was needed that would identify the work that was being done with regard to the various hotspots.

The Chairperson thanked Members for their submissions. The Premier had been before the Committee twice already, as such it was suggested that the Committee asked for a written report on the regulations in relation to the High Court Judgement. The other proposals that fell outside of public participation but formed part of the work of the Committee were asked to also be submitted in writing to the Procedural Officers.

Adoption of minutes

Committee Minutes dated 20 May 2020

The minutes of 20 May were reviewed. The Chairperson asked if there were any amendments or objections to the minutes.

Ms Baartman moved for the adoption of the minutes

Ms G Bosman seconded the adoption of the minutes

The minutes of 20 May 2020 were adopted without amendments.

Committee Minutes dated 22 May 2020

The minutes of 22 May were reviewed. The Chairperson asked for the theme to be added at the top of the minutes.

Mr Bosman enquired as to why 4.1.5 had the letter ‘T’ in parentheses and brackets. This included the ‘T’ in tourism which appeared in capital letters however, for the purpose of the sentence it had been changed to lower case.

The Chairperson responded that the ‘T’ was changed from the original and therefore it was in the brackets to reflect the edit. The Chairperson said that if no objections or further amendments had been noted then minutes could be adopted with the one amendment.

Mr Bosman moved for the adoption of the minutes with one amendment

Ms Baartman seconded the adoption of the minutes with one amendment

The minutes of 22 May 2020 were adopted with amendments.

The Chairperson thanked Ms Baartman and Mr Bosman.

The Chairperson thanked all Members for their participation in the meeting and appealed to them to keep safe.

The meeting was adjourned.