Public Protector’s Report: deliberations

Meeting report

PUBLIC PROTECTOR AD HOC COMMITTEE
21 June 2004
Public Protector’s Report: Deliberations

Chairperson: Mr I Vadi (ANC)

Relevant documents
Public Protector Report on NPA
Membership List of the Ad Hoc Committee on the Public Proscecutor
Committee Report of 22 June
Final Committee Report as of 23 June 2004

SUMMARY
The Committee dealt with the Public Protector’s recommendations. The ANC’s Richard Baloyi proposed that the recommendations be dealt with as a package. He argued that the recommendations flowed from the findings on which Members had already held exhaustive discussions. He proposed that the Committee arrive at recommendations that would promote the principles of collaborative government, and not take sides on the matter. The Committee should express its displeasure at the manner the Prosecuting Authority made a prima facie declaration against the Deputy President.

The DA agreed with the ANC’s position to a great extent, but expressed reservations about the latter statement. The IFP supported the ANC motion and said this ‘win-win’ scenario was acceptable.

Ms De Lille of the ID faulted the Public Protector for not invoking the power of subpoena to force the DPP to appear before him. Since he had failed to exhaust all the legal avenues at his disposal, the Public Protector’s Report to the House had been premature. Ms Mentor of the ANC countered that the Public Protector had deliberately avoided using its powers of subpoena in accordance with the principles of collaborative governance. It would have been a nasty public spectacle had the Public Protector taken such a route.

MINUTES
Ms Camerer (DA) informed the Chair that her Party had written to the Speaker regarding allegations that the Deputy President – the complainant in this case – had chaired the meeting that constituted the ANC Membership to the Committee. They had informed the Chair as a matter of courtesy. The Chair accepted the copy of the letter to the speaker. He considered that the Committee was duly constituted and should conclude its task unless or until the House ruled otherwise.

Mr Baloyi (ANC) reminded Ms Camerer that the issue had already been ruled out of order. He then proposed that the recommendations be dealt with as a package as the findings and the recommendations were closely intertwined. The mandate of the Committee is to submit a report to the National Assembly after consideration. He proposed that the Committe:
- express its displeasure that the statement regarding a prima facie case against the Deputy President, was indeed a violation of the latter’s dignity
– call the DPP to ensure that his office always acts according to the Code of Conduct and policy guidelines of the NDA Act
- encourage all organs of state to respect and protect the principles of collaborative governance
– suggest that the Minister concerned develop guidelines on how to resolve conflict between state institutions.
- set timeframes on when these measures should take effect, and be report back to the House
- call on the Ministerial Co-ordinating Committee to fulfill its mission and make a report to Parliament.
- call on to the Minister of Justice and Constitutional Development to quickly convene a meeting of the two state institutions to harmonise operations, within a timeframe suggested by this Committee.
- as information security in the National Prosecuting Authority had clearly been problematic, it should call on the Minister of Justice and Constitutional Development to take steps to ensure the safety of sensitive information.
- call on the House to re-affirm its oversight role to ensure that state institutions abided by their constitutional mandate. The House should ensure that there were no ‘loose ends’ in operations

Ms Camerer said the DA had no problem with most of the ANC’s suggested recommendations. However, a few issues remained objectionable. She requested for a copy of these draft recommendations so they could properly study the contents and form positions.

Mr Baloyi clarified that the suggestions were his own and not an ANC consolidated position, and were tabled to facilitate general discussion.

The Chair said that the Committee had found common ground on most findings, and should also do so on the recommendations. Mr Swart (ACDP) agreed and said it was also important to understand to what degree other ANC Members concurred with Mr Baloyi’s position.

Mr Godi (PAC) encouraged flexibility with the approaches to discussions. Where a problem had been noted, the key challenge should be identified and proposals made to the House on how to intervene. The Committee should not restrict itself to the recommendations but rather make other recommendations if necessary.

Ms Camerer asked the Chair to circulate a document setting out the ANC’s position, but the Chair rejected this proposal. He called on the DA to state its own position instead. Ms De Lille agreed and said it was important to hear each party’s viewpoint. Ms Mentor (ANC) said that she would prefer individual contributions rather than a party political approach. The individual approach would promote dialogue and positions would rest on reason rather than political divisions. The Committee should remain united and seek general consensus from within.

Ms Tarjaard (ANC) assured the Committee that all parties would table their respective positions. The ANC had taken a clear position on the finding at 24.4. The Committee had yet to discuss the critical question of accountability.

Ms Camerer agreed and noted that section 35 of the National Prosecutions Act obliged the DPP to account to Parliament. The DPP’s report to the Justice Portfolio Committee had not mentioned this matter. At no time had Parliament received a report on the matter. The DPP had written to the DA, indicating that they were preparing a submission to the Committee – if this was the case, Members should be informed in to prepare for this.

She continued that the DA’s position on recommendation 35.1.1 was that the matter was a value judgement and hence not easy to assess. She agreed that the Minister of Justice should take policy initiatives to ensure that ‘territorial conflicts’ did not re-occur. As for recommendation 25.1.2, the DA thought the word “unjustifiable” in the findings was different from the position taken in the recommendations. The question of ‘justifiable limitation’ found under section 36 of the Constitution came into play here. Under recommendation 25.2, it would be wise to propose the necessary amendments to section 31 of the National Prosecutions Act in order to tighten security around sensitive documents.

Mr Burma, Parliamentary Legal Advisor, said that it was the Committee’s role to consider the value judgement made in the report. Summoning the DPP to reply to the allegations, would not help. It would only foster another set of value judgements.

Ms Mentor (ANC) said that her understanding of accountability did not mean the DPP should make representations to the House. The Public Protector had indicated the obligation incumbent upon the DPP in section 41 of the Constitution. The Committee had exercised its mandate and was ready to deliver. Ms Tobias agreed that indeed it was late to consider calling parties to make representations so the Committee should focus on recommendations. The assessment of value judgement should be based on the report.

Mr Mthembu (ANC) said the Committee should not assume the powers of a court. All the required information was in the report. Paragraph 2.5 clearly showed that the DPP had applied his mind before making the pronouncement on a prima facie case. He indicated that the evidence in his possession could not support a conviction. If the DPP were called to explain his decision this would amount to questioning the exercise of discretion.

Mr Godi observed that there was an element of agreement among Members on the findings in the report. The key question is whether Members should restrict themselves to the recommendations or provide their own views.

Mr Masutha (ANC) re-iterated Mr Baloyi’s point that the Public Protector had come out with findings and recommendations. The Committee should consider the entire report and report to Parliament accordingly – this was a straightforward task. The Committee should report that it had applied its mind on the report and these are recommendations.

Ms De Lille said her Party would accept the first two recommendations. Recommendation 25.1.1 was problematic because the Constitution placed an obligation on the DPP to co-operate with the Public Protector. Recommendation 25.1.2 was inclusive. The Public Protector had admitted that his report was compiled without the input of the Minister and the DPP. Recommendations 25.13 and 25.2 were acceptable but 25.3 are not acceptable. She said that Chapter nine institutions were obliged to support each other. They were independent and should be seen as impartial and accountable to Parliament. It was unfortunate that the Public Protector had been forced into a situation where the DPP had been made the subject of his investigation. The DPP’s discretion on whether to prosecute should not to be interfered with. Nobody had found that the DPP had exercised his discretion maliciously. The House should not become an avenue for institutions to settle internal disputes, but should uphold the principle of separation of powers. The Public Protector should have subpoenaed the DPP in terms of the law. The Public Protector’s report was premature in that he did not exhaust all legal avenues before coming to Parliament. Section 81 of the Constitution placed an obligation on the DPP to co-operate with the Public Protector.

Mr Swart suggested that the Committee note the contents of the report but come up with its own recommendations. The Committee should be cautious in the manner it handled this matter in view of media reports that the National Prosecutions personnel were deeply demoralised.

Ms Taljaard said that were clearly tensions in the legal mandates. It was impossible to consider issues related to value judgement with the material before the Committee. In terms of section 35(2) of the NPA Act, Parliament holds the DPP accountable for the reports submitted to the House. Mr Burma clarified that section 35(2) would not assist the Committee. The Committee could not compel the DPP to make representations.

Ms Van Wyk (ANC) said that Members seem to be in agreement on most issues. In terms of collaborative governance, the DPP could withhold or exercise his discretion. Section 41 of the Constitution spoke of establishing mechanisms to avoid such conflicts. The Committee was not concerned with issues of prima facie, but the manner in which the message was conveyed.

Ms Mentor reiterated that the Committee should pursue a conclusion that facilitated friendly relationships between state institutions. She rejected claims that there was tension between these institutions. Whenever tensions occurred between institutions, the Constitution provided mechanisms for Parliament to deal with the matter. The Public Protector deliberately avoided subpoenas in line with the principles of collaborative governance. It would have been a nasty scenario had the Public Protector subpoenaed the DPP. This experience should be a learning curve for Parliament. Parliament should also expand on the concept of human dignity.

The Chair noted that the House was close to finalising the recommendations. Members had not confined themselves to the recommendations in the report, but had instead ventured their own proposals. He tasked the Committee Clerk to work on the draft report along the following lines:
- an introductory note
- the lodging of the complaint
- the constitution of the Committee
- the Committee’s position on the findings and recommendations
- the DA’s reservations on recommendation 25.5 and 25.6
- the Committee had noted the recommendations without expressing a view thereon
- the Committee’s own recommendations along the lines suggested by Mr Baloyi
- the Committee re-affirmed its support for the two institutions and sought to enhance their independence and integrity.

The draft report would be circulated to Members to peruse before the meeting at 2pm the following day.

The meeting was adjourned.