Briefing by Legal Advisors on the ICASA PMS legal opinion & MDDA legal opinion Consideration of the written submissions on the South African Postbank Limited A/Bill

Meeting report

The Chairperson said the purpose of the meeting was for the Committee to receive briefings from the Parliamentary Legal Adviser on the ICASA Performance Management System (PMS) and on the MDDA legal opinions. The Committee would also deliberate on the written submissions it received on the South African Postbank Limited A/Bill and adopt minutes from previous meetings.

Briefing by the Legal Advisers

ICASA Performance Management System (PMS)

Ms Phumelele Ngema, Parliamentary Legal Adviser, giving her legal opinion on the ICASA PMS, said the first matter related to the separation of powers, the Act and the plan on the remuneration for appointing a panel that would deal with the performance assessment of the council as well as the councillors themselves, was sent to the Members. Members had to consider whether the involvement of Parliament in setting that remuneration would be safe. The consultation had to be done with treasury to ensure consistency in line with the committee that determined the remuneration of the independent constitutional institutions. She suggested the Committee look into this in respect of recommendations on remuneration of the panel.

Section 8 and section 6(a) of the ICASA Act stated that when the report on the panel was done, the report had to be brought to the Committee for consideration, but there were no further details. There had been a request for applying institutional memory to find out what the Act's intentions were at the time it was introduced; what would be the details of considering the report of the panel when the assessment was done. The issue of the separation of powers would arise in instances where a dispute could arise regarding the performance of a councillor. In attempting to deal with the dispute if it arose, when the report of the panel was received, it would be reviewed on what could be done and on whether the process would be practically implementable. If the provisions of the Act were not clear enough, that would have to be a matter for consideration of amending the Act.  

Another recommendation was that instead of making a specific reference to section 8.1(g) grounds of misconduct, it would be better to refer to section 8 generally in the PMS without being specific to one single provision.

The Committee could deliberate on those matters and make recommendations if necessary.

Reference had also been made to point 13.6 of the plan. Section 8.2 expressed the consequences relating to the non-performance, or non-satisfactory performance, being picked up and confirmed by the evaluation panel. The recommendation was that point 13.7 be inserted to make reference to section 8.2 of the Act. This was safer to ensure all provisions were covered.

MDDA closed meetings

Mr Andile Tetyana, Parliamentary Legal Adviser, said the Committee had received a request to close an oversight meeting on the MDDA and its board. The rules of Parliament allowed for instances of closed meetings, which would implicate four constitutional rights. The first right was the right of access to information as per section 32 of the Constitution. The second right was the right to freedom of expression as it related to the media in section 16.1(a) and (b). The third right related to section 14(d) which was the right to privacy. The final one related to section 10 of the Constitution which was the right to human dignity.

 Accountability was one of the founding values of the Constitution and section 1(d) adopted a multiparty system of a democratic government to ensure accountability, responsiveness and openness. Section 4.1.1(c) provided that all spheres of government and the organs of state had to provide effective, transparent, accountable and coherent government.

The default position was drawn from section 59 of the Constitution, which stated that public involvement was necessary for the National Assembly. The National Assembly had to involve the public in the legislative and other processes in the Committee and conduct its business in an open manner. 

The problem was that legal services did not see the MDDA request for a closed session and all that they knew was that the entity wanted to discuss sensitive matters affecting employees. Looking at the Rules of Parliament, due consideration must be given [by the Committee to close a meeting]. Even access to information can be denied if there was considerable danger that disclosing the information could cause.

Legal services could therefore not give a definitive view without seeing the MDDA request. The recommendation is that the Committee make a determination based on the matters to be discussed.

Discussion

Ms D Kohler-Barnard (DA) requested a document detailing Ms Ngema’s proposed amendments.

She agreed with the opinion on the MDDA that more information was needed on the matters to be discussed [and whether this warranted closing the meeting]. In principle, she was against closing meetings. Private individual issues had to be sorted out by the HR department within the organisation. She was uncomfortable on how the Committee could involve itself in such matters.

Ms Ngema said she would circulate her written opinion to Members.

The Chairperson agreed that the MDDA must furnish the Committee with more information on why exactly they wanted the meeting closed.

Ms T Bodlani (DA) said one of the issues that required a legal opinion was on how the Committee would deal with matters that were deemed sub-judice. The legal opinion had not covered that and the question that had been asked in the previous meeting was on the extent of the Committee’s powers; where had the powers of the Committee started and where had they stopped when engaging with the MDDA.

Legal Advisors’ response

Mr Tetyana responded to Ms Bodlani that that matter had always been a confrontation; when people wanted to escape accountability, they used the sub-judice rule. The portfolio committee had wide discretion to determine its own procedure and compile its own report. The legislature, which was Parliament, and the courts, occupied a similar level in terms of importance, as a part of the three arms of the state. It did not mean that if a matter was before court, Parliament could not discuss it. Responsiveness was one of the values of the Constitution and the necessary information was needed to hold people accountable.   

The sub-judice rule spoke to the merits and if the Committee considered them, - it had not said there was nothing to be done. According to rule 227 (1) (b) of the National Assembly Rules, the Portfolio Committee had to exercise oversight over the National Executive within its portfolio. The Committee had to exercise oversight on any executive organ of the state falling within its portfolio, any constitutional institution falling within its portfolio and any other body to which oversight was assigned to it. A portfolio committee could monitor, investigate, enquire into and make recommendations concerning all organs of state in a variety of areas. Matters before court did not mean Parliament could not exercise oversight. Parliament and the judiciary had equal standing.

Ms Bodlani said the comments that Mr Tetyana made still put a spanner in the works on whether the meeting would be closed or not and on the issues of sub-judice or not sub-judice. That meant there was a need to go back to the legal office and request an opinion on those matters, as what Mr Tetyana mentioned was true. She suggested that the Committee write to the board on this.

The Chairperson, on the way forward, asked the legal advisors to submit their opinions in writing. On the ICASA PMS, the understanding was that there was no problem with the framework itself except the need to strengthen certain points for a better scope. The legal opinion would assist with this. The Committee report could then be presented to the National Assembly and for the PMS to apply to the councillors. That was important as the Committee had approved the appointment of four new councillors to ICASA and another filling of a vacancy was underway. It was important to be able to measure the performance of the councillors both as a collective and on an individual basis.

Ms Kohler-Barnard responded to the Chairperson’s comments by saying that the Committee had to perhaps consider scheduling a quarterly report submission from ICASA as opposed to only finding out closer to the end of the year that a councillor had not been performing and not contributing to the entity. This would assist in strengthen oversight.

The Chairperson agreed and said the quarterly report had to include a summary of the performance of councillors.  

On the MDDA, the entity would have to provide compelling reasons for requesting a closed session. The matter was still subject to approval by the House as all the sections of the Constitution that had been quoted would have to be satisfied before such approval was made. As a way forward, the Committee would still continue with the oversight work with the guidance of the legal opinion.

The Committee agreed.

Consideration of the written submission received by the Committee on the South African Postbank Limited A/Bill

Dr J Medupe, Committee Content Adviser, presented that only three written submissions were received on the Bill: COSATU, the Financial Sector Conduct Authority (FSCA) and the Banking Ombudsman.

After the first round of requests for written comments, certain interest groups within the sector were approached, such as the Payments Association of South Africa (PASA), the National Stokvel Association of South Africa, FEDUSA, the Banking Association of South Africa (BASA), Wits School of Law, Ombudsman Banking Services, Financial Sector Conduct Authority, the Right to Know campaign, BRICS Bank, the Competition Commission of South Africa and the National Credit Regulator. From this process, the FSCA and the Banking Ombud submitted comments, bringing the submissions received to three, including COSATU.

Only two of three submitters requested to appear before the Committee.  

Discussion

The Chairperson reminded Members that when it heard only COSATU had responded on the Bill, the Committee decided to extend the comment period and invite specific organisations playing a role in the space. The Committee also looked at the comments received when the Department put out the call for comment, but there were none.

Ms Kohler-Barnard did not think three comments were good enough for ensuring public participation. The proposal of creating an entire bank was massive. Unfortunately, there was outrage on the VBS issue and the looting of funds which was still fresh in the minds of South Africans. It was the Committee's job to ensure that inputs were received from the other entities, even if that meant a specific individual would be targeted at each of those entities would be written to.

Mr V Pambo (EFF) added to Ms Kohler-Barnard’s contributions. He said it was important to know how those institutions were approached; were they written to or called? Perhaps the fault may lie within the Committee’s mode of communication with the institutions. There was a need to find a way to ensure that as many inputs as possible were received, because the Committee could not decide on the matter anyhow; lots of contributions were needed.

Mr L Molala (ANC) was concerned that the Committee was forcing the matter of public comments – unless the Committee felt the scope of the public comment process was not wide enough. The Committee could be waiting for comments which would never arrive. If everyone had been given an opportunity, then the Committee could not force comments to be made.  

Content Advisor’s response

Dr Medupe responded that during the process, written letters were sent to each identified interest groups. The letters were specific as to what the Committee was requesting, and no response was received from stakeholders except for the three mentioned.

The Chairperson said the Bill had emanated from Cabinet where there was an initial comment period. The Committee then put out an advert calling for comments on the Bill. From this, COSATU provided a written input. Thereafter, the Committee decided to reach out to targeted stakeholders in the space to solicit further comments after no further input was provided in response to the advert. It was important to note that one could not have an endless process of consultation, especially if that process had been transparent enough. Comments cannot be coerced if organisations or persons felt there was nothing to comment on.

The Chairperson suggested that more follow ups be done to encourage further comments. Members could also reach out to their constituencies. This could be extended to another week.

Ms Kohler-Barnard agreed with the Chairperson that a further extension is warranted. She would also approach stakeholders for input. Solid comments were needed from various entities not just one or two comments – this would make a farce of the process.

Mr Pambo also agreed with the extension, but also emphasised the importance of substance over process. Another factor to bear in mind on why the institutions had not commented was the timing. He agreed with Members requesting submissions themselves and approaching their constituencies. The Committee needed as many ideas as possible. He said two weeks would be sufficient.

Committee minutes

The Committee adopted its minutes dated 6 September 2022.

Further matters

Ms Kohler-Barnard raised a question about the sub-committee. She said it appeared that the Committee did not do physical oversight, which is a huge concern. It was not understandable why Parliament was blocking the Committee from performing oversight, considering the many issues that had emanated from entities such as the SABC and the Post Office. What were the plans to get international input in terms of oversight work?

The Chairperson responded that that matter of physical oversight has been raised but there were challenges with changes to the parliamentary programme. Requests were also made to party caucuses. The matter was receiving attention also because of the large number of entities accounting to the Committee and oversight needed to be practiced on the ground. The application would continue to be made.

On the sub-committee, an application was made to move the deliberations from Monday since that was a busy day and the Members were travelling to attend Parliament physically. The Committee would rather use the slot of Tuesday, 27 September 2022, for the deliberations about the sub-committee. The full Committee would also meet on that date.

The Chairperson also brought up the matter of the letters received for circulation, from different organisations raising objections to certain candidates. A legal opinion was requested on all the candidates so that during the deliberations, everything would be cleared and candidates could also submit information to clear their names. Similarly, that would ensure that the candidates with questionable reputations were not recommended. Candidates should not be prejudiced on the basis of allegations without evidence.

The meeting was adjourned.