PP Inquiry day 64: Correspondence before Committee; Revised Committee Programme

Committee on Section 194 Enquiry

23 March 2023
Chairperson: Mr R Dyantyi (ANC)
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Meeting Summary

Video

Motion initiating the Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from the Independent Panel furnished to the NA

The Committee for Section 194 Enquiry had to postpone its planned hearings for the week after it received a sick note from the Public Protector indicating that she has been booked off until 27 March 2023.

Due to the days missed, the Committee had to consider a revised draft programme. The Committee are now expecting to conclude its Enquiry on 29 May 2023.

The Chairperson had raised a serious implication that the Public Protector South Africa (PPSA) had indicated that it cannot afford to fund the Public Protector’s legal team after 31 March 2023 due to lack of funds.

The Committee noted that it is aware that the Constitutional Court ruled that the Public Protector is entitled to have legal representation at the hearings. However, the court did not rule that the PPSA or Parliament is responsible for funding those costs. The Committee agreed that this should be addressed as a matter of urgency between the relevant stakeholders.

Another implication of the revised programme is that the Committee Members would have to “sacrifice” their constituency period early next month in order to prioritise the Committee hearings.

The hearings are scheduled to continue from Tuesday, 28 March 2023.

Meeting report

Chairperson’s opening remarks

The Chairperson welcomed the Members, the support staff, members of the media and members of the public. The Committee had intended to proceed with the Enquiry after 1 o’clock, but that has been postponed. The Committee received correspondence from the Public Protector’s legal team indicating the reasons for unavailability that will be tabled in this meeting.

This meeting was also convened for the Committee to consider how it will proceed with the rest of its programme.

The Chairperson noted the apologies from Ms Sukers and Ms Van Minnen.

Tabling of correspondence

Mr Thembinkosi Ngoma, Committee Secretary, said that the Public Protector had sent an email on the morning of 22 March 2023. The email was to inform the Chairperson that she had been booked off sick from 22 March until 27 March; and that she would only be able to attend hearings from 28 March 2023. The Public Protector did indicate that she was willing to share the sick note if needed. Mr Ngoma confirmed that the Public Protector had sent the sick note, as requested by the Chairperson.

The other correspondence was the Chairperson’s response to a letter from Seanego Attorneys, dated 17 March 2023. The letter was about the submission of the balance of the Public Protector’s statement, as the Public Protector’s legal team had indicated that it would be submitted in a “series of statements”.

Discussion

The Chairperson informed the Committee that he had responded to the Public Protector’s email. He had asked that she provide the medical certificate. He said that it is important that there is transparency and that the Committee understood when the PP said that she was booked off sick. He had received the medical certificate but would not share the details of it in this meeting.

The Enquiry will not be able to proceed until the Public Protector is able to attend. He noted that she was only able to attend the hearings from 28 March 2023, because of this the Committee would have to consider a redrafted programme.

Ms J Mananiso (ANC) appreciated the Chairperson’s effort in obtaining the medical certificate to attach as proof of the Public Protector’s absenteeism. She felt that it was fair to postpone the hearings because there were reasons why the Public Protector could not attend. The Committee should accept the reasons given because there was a medical certificate to indicate that the Public Protector had been booked off sick.

Ms D Dlakude (ANC) supported the Chairperson’s decision to not publicise the details of the medical certificate because it is a private matter. The Committee cannot question the medical certificate. She wished the Public Protector a speedy recovery. She said that this would disrupt the Committee’s programme, but there was nothing that the Committee could do about such unforeseen circumstances.

Mr B Maneli (ANC) agreed that the details of the medical certificate should not be shared. He trusted that the Enquiry has been postponed for valid reasons.

He referred to the Chairperson’s letter to Seanego Attorney’s, dated 17 March. He noted that the Committee still had to receive the other instalments of the Public Protector’s statement. He said that the Public Protector’s sick leave might affect the submission of the balance of her statement. The Committee would have to look at the facts before it when considering its programme. The Committee can only wish the Public Protector a speedy recovery.

Mr K Mileham (DA) referred to the Committee’s programme, particularly considering the time constraints. He asked if the Committee could consider receiving the closing arguments in writing, rather than it being presented orally. He said that this would go a long way in speeding the process and making sure that everyone was on the same page in understanding what those arguments are.

The Chairperson reminded Mr Maneli that it was the Public Protector’s choice to submit a statement. The Public Protector’s statement was submitted on the deadline of 14 March, but it was submitted while indicating that it would be sent in sections and that it was not complete at that time. The Committee had not expected the statement to be submitted in instalments. He regarded this as incomplete work on the side of the Public Protector. He had sent a follow-up email to the Public Protector’s legal team on 17 March, to say that he would allow the balance of her statement to be submitted by Friday, 24 March 2023.

Ms M Tlhape (ANC) supported the Committee’s acceptance of the Public Protector’s medical certificate. She thanked the Chairperson for verifying the medical certificate and for maintaining the privacy thereof. She now understood why the Committee would have to consider a revised draft programme. She wished the Public Protector a speedy recovery. This is a situation beyond the Committee’s control. She hoped that the revised draft programme would enable the Committee to recover the time lost.

The Chairperson asked the Committee Secretary to proceed with the revised draft programme.

Revised draft programme of the Committee (Section 194 Enquiry)

Mr Ngoma took the Committee through its revised draft programme.

• The Public Protector’s hearing is scheduled from 28 March until 31 March 2023.

• The questions to the Public Protector by evidence leaders are scheduled for 3, 4, 5, 6 and 11 April 2023.

• The questions to the Public Protector by Members are scheduled for 12, 13 and 14 April 2023.

• The closing arguments are scheduled from 18 until 21 April 2023.

• The deliberations on the hearings and evidence before the Committee will take place on 28 and 29 April 2023.

• The Committee will deliberate on its draft report on 8 and 9 May; and adopt it by 10 May 2023.

• The draft report will be sent to the Public Protector for comment, between 10 until 24 May 2023.

• The Committee will deliberate on the submission of the Public Protector and adopt the final report for tabling to the National Assembly on 29 May 2023.

Discussion

The Chairperson said that the revised draft programme has definite and serious implications for the Committee’s work and quite a number of other things. There are three implications that the Committee would need to be aware of. Firstly, he indicated that the Members of this Committee would have to work throughout their constituency period. The second and more serious implication is that the Public Protector South Africa (PPSA) had indicated that they would only fund the Public Protector’s legal team until 31 March 2023, which is next week Friday. The third implication is that this has resulted in a prolonged process.

He regarded the above-mentioned implications as “risk factors” in proper oversight and planning processes. It would be important for Members to suggest mitigating measures when commenting on these risk factors. He recalled that Members have previously said that this was not an open-ended process.

He noted the suggestion that Mr Mileham had made earlier in this meeting.

Mr B Nkosi (ANC) welcomed the revised draft programme. He commented on the Chairperson’s email to the Public Protector’s legal team, dated 17 March 2023. He said that the balance of the Public Protector’s statement should be submitted, notwithstanding the fact that the Committee had extended time. He also agreed with the Chairperson’s response that if any witness should be called to testify that it must be based on relevance.

He referred to the implications of the revised programme. Members of this Committee had no other choice than to work during their constituency period because it is also their responsibility to finish their work. The Members will have to balance their constituency work with the work of this Enquiry.

The second implication is very challenging for the Committee. The Committee has a responsibility to ensure that it does not lead other arms of the state into unauthorised expenditure – doing so would be illegal and irresponsible. He suggested that this matter of the Public Protector’s legal funding should be between the PPSA and the Public Protector. The Public Protector should negotiate with the PPSA to consider the options available. He understood that the PPSA had affirmed that they would not fund the Public Protector’s legal team beyond 31 March 2023, which means that this issue reverts to the Public Protector. This Committee does not play a role in leading the PPSA to incur an expenditure that they have not budgeted for beyond 31 March. This decision may lead to associated risks. For example, the PPSA may say that they can no longer afford to fund the Public Protector’s legal team. The Committee can only discuss this after the PPSA has made that decision. However, this Committee has a responsibility to complete its work by the end of May.

Mr Maneli was satisfied with the Chairperson’s response to the question he had raised earlier. He said that the Committee should not appropriate itself on what should be a determination by the PPSA. The issue of legal representation continues to be an issue of interpretation, especially the cost thereof. He agreed with Mr Nkosi’s comment that the question of the funding of the Public Protector’s legal team may create other risks that the Committee may need to deal with. He recalled that the Committee was already drawn in when the issue of non-payment had occurred, which had a detrimental effect on the Committee’s programme. This is something that the Committee cannot avoid but must deal with once there is feedback from the PPSA.

He referred to the Chairperson’s email regarding the Public Protector’s statement. He felt that the Chairperson had qualified his explanation, in that whether or not the Committee receives the balance of the statement by 24 March, that it was the choice of the Public Protector. The challenge is for the Public Protector to appear before the Committee, particularly because her sick leave could not be pre-empted.

He agreed with Mr Mileham’s suggestion, that perhaps the evidence leaders and the Public Protector’s legal team could work on submitting their closing arguments in writing. He said that the Committee should consider whether there is a necessity to have the questions answered orally. He noticed that several days have been allocated for Members to ask questions to the Public Protector. He suggested that these are areas that can be minimised, without reducing the quality of such an engagement.

He said that the constituency period is the best opportunity for public representatives to interact directly with their constituencies. The Members need to understand their obligation to the people that have elected them to Parliament. He understood that the Members of this Committee had to sacrifice their constituency work for this Enquiry, but this also runs the risk of the Members being socially distant from the people. He suggested that this concern should also be factored into the revised programme. The Committee should work to maximise the time that it has without reducing the quality of its engagements.

Ms Dlakude agreed with her colleagues. She agreed with the suggestion that the closing arguments be submitted in writing, as this will ensure that the time allocated to the programme is minimised. She said that since the beginning of this Enquiry, the Members have taken time from their constituency work. She agreed with Mr Maneli’s comment that the Members should balance their constituency work with their parliamentary work. The Members’ commitment to other portfolio committees has also suffered because they needed to attend the proceedings of this Enquiry. She further agreed that Members could pose their questions to the Public Protector in writing. She felt very stressed when she received the revised programme that keeps on stretching. She understood that there was no control over the unforeseen circumstances, but the Committee cannot keep on stretching its programme. For the same concern, the Committee cannot call further witnesses.

She agreed with Mr Nkosi and Mr Maneli’s comment about the balance of the Public Protector’s statement.

She urged the Chairperson that the Members of this Committee must balance their work as public representatives. The Members are not only committed to this Committee, but they also have constituency work that they must participate in. The Committee should finish what it had started by minimising the time, while also ensuring that there is no overlap with their constituency work.

Mr G Skosana (ANC) agreed that the question of the funding of the Public Protector’s legal team is the greatest risk that is faced. He said that it was obvious that the programme would go beyond 31 March. There is no way that the programme could be shorted for it to end on 31 March – that is totally impossible. The risk is that the Enquiry will go beyond what the PPSA had indicated that they are able to fund. He noted Mr Nkosi and Mr Maneli’s comment that the Public Protector should have an opportunity to engage with the PPSA to address this matter. He wondered whether the Committee could not take this matter to the Office of the Speaker, as to request the Speaker to engage with the Minister of Justice and Correctional Services. He understood that the PPSA is funded by the government through the budget vote of the Department of Justice and Correctional Services. He said that it might be possible that the Department of Justice and Correctional Services could make funds available until the end of this Enquiry.

He said that this implication does affect the Committee because the Constitutional Court had made a ruling that the Public Protector has a right to legal representation. He questioned what would happen if the PPSA says that it cannot afford to fund the legal team of the Public Protector beyond 31 March. The Committee needs to be seen doing something, to try and ensure that the Public Protector does have legal representation beyond 31 March, so that there are no legal loopholes.

Mr B Herron (GOOD) agreed that the Committee should complete this process as soon as it can, but it should find a balance. The revised programme eliminates any opportunity for the Members of this Committee to participate in other portfolio committee work, including oversight visits. The revised programme does not allow the Members to plan any constituency work. It felt like the Committee was chasing a race that does not have an end. He proposed that the revised programme be amended to also allow Members to participate in their other work.

Ms Thlape felt that the Committee has come a long way and it is on the last level. The Committee should avoid any possible comebacks at all costs. She accepted the revised programme. She reminded the Members that they have been walking this path with the public of South Africa, and even outside of South Africa.

She said that the importance of the closing arguments is that they will be the gist of the Committee’s decision. She suggested that the closing arguments should be transparent and fair to the public. She felt that written submissions and oral presentations do not have the same impact. She did not want the Committee to be judged for opting to do written submissions. Although she would do anything to avail herself to her constituency work, this Enquiry is the first of its kind. At times, it felt like this Committee was being tested on how it would make decisions, but it has always maintained a calmness, but there will be a day for the Committee to conclude on these matters.

She agreed with Mr Skosana’s suggestion that the Committee should approach the Speaker to address the funding of the Public Protector's legal team. She further agreed with Mr Skosana’s comment that this may have an impact on the Committee’s work, particularly in bringing it to a standstill.

Overall, she accepted the revised programme. She added that the Committee should try to tread carefully, in the best interest of the nation.

Mr Nkosi said that the ruling by the Constitutional Court said that the Public Protector should have legal representation, but the ruling did not speak to the cost thereof. If the Constitutional Court wanted to speak of the cost, then it would have done so in specific terms. If the Public Protector wanted that matter to be included, then she would have raised it with the court. He questioned what the Committee would do if the PPSA says that it will no longer fund the Public Protector beyond 31 March. He believed that the Committee should err on the side of caution. The Committee should not involve itself in leading the PPSA to incur unauthorised expenditure. The PPSA and the Public Protector can negotiate around this matter. He suggested that the Public Protector could approach the relevant portfolio committee to raise the issue with them, rather than this Committee taking an initiative on legal costs by raising it with the Speaker. This is a matter that this Committee may not have the authority to interfere with. However, he felt that the primary responsibility to resolve this issue of funding was between the PPSA and the Public Protector.

Mr Maneli agreed with the caution that the Committee should not get involved in the issue of legal funding, and that it should be referred to the relevant structures. He said that when these matters are raised, it is also about improving systems in the future. He reiterated that the issue of legal representation is an issue of interpretation.

On the revised programme, he said that the Committee has a responsibility of ensuring that what needs to happen happens without a reduction in the quality of such an engagement. He suggested that there are areas on the revised programme that could be reduced in the number of days it has been allocated, but without compromising the engagement.

Chairperson’s comments

The Chairperson felt that the Members have effectively responded to the three risks that he had indicated. The Members have made concrete suggestions as to how the risks can be mitigated. He summarised the views of the Committee in the following three points:

• The Committee was of the view that it has limited time to conclude this process, but it must still produce the kind of quality that this Committee is going to be known for.

• The Committee needs to balance a procedurally fair process within a reasonable time.

• The Committee needs to manage the risks, because of the time constraints.

The Chairperson further noted that the Members have firmly agreed that the balance of the Public Protector’s statement should be submitted by the deadline of 24 March, which is the next day. There will be no further extension for the statement.

The Committee was aware that it is a critical time. Therefore, should any further witnesses be called to testify that may necessitate the Public Protector’s evidence, such will be considered on relevance and this will be done through written affidavits.

He noted that the Members have agreed that it will continue with the work of this Enquiry through the constituency period. Although this might compromise their work with other portfolio committees and constituency work. The Members of this Committee must complete their work.

The Committee was aware that the issue of the Public Protector’s legal funding must be attended to before 31 March. The Members are of the view that this must be addressed as a matter of urgency by the relevant stakeholders.

He noted all the suggestions to shorten the revised programme, as well as Ms Thlape’s caution to avoid any comebacks.

The Chairperson asked the Members if his summary reflected the discussion.

Mr Skosana, Ms Dlakude and Ms Thlape agreed with the summary.

Adoption of minutes

The Committee considered and adopted its minutes of 6, 7, 15 and 16 March 2023.

The meeting was adjourned.

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