Minister Lindiwe Sisulu non-compliance with Committee summons

Meeting report

The Chairperson welcomed everyone present and the delegation led by the Acting Director General.

Apologies were noted.

Minister Lindiwe Sisulu non-compliance with Committee summons
The Chairperson said, in this meeting, Members expect the Honourable Minister because the summons, as per the decision of the Committee, was sent to her and she confirmed receipt of that summons but she was not in the meeting. The Committee followed a rigorous process after an intense discussion that led to the summoning of the Minister of Tourism. The Committee received concurrence from the Speaker of the National Assembly, as per the procedure.

This was done for several obvious reasons that were tabled in several meetings of the Committee. The Minister decided not to honour the summons. Section 92 of the Constitution clearly states that Members of the Cabinet are accountable collectively or individually to Parliament for the exercise of their powers and performance of their functions. It further speaks to what members of the cabinet must do. It says members of the cabinet MUST act in accordance with the Constitution of this country and provide Parliament with full and regular reports concerning matters under their control.

The Constitution further gives powers to the Committee and Parliament to hold the executive accountable. Section 55 of the Constitution says that the National Assembly must provide mechanisms to ensure that all executive organs of the State in the national sphere of government are accountable to it and to maintain oversight of the exercise of national executive authority including the implementation of legislation, and any organ of the State.

She cited these sections of the Constitution so that Members have no fear of contradictions to whatever decision the Committee made. Since the Minister did not pitch, the Committee (Members) has a right to lay criminal charges against that individual. They are empowered by the rules of Parliament and the Constitution of this country. This is how serious the matter is.

The Committee finds itself in this dilemma because of an incumbent that refuses to account to Parliament. Any attitude or belief that because Ministers are Members of the Portfolio Committee, they have no obligation to appear before the Portfolio Committee is defeated by the Constitutional mandate, which they are bound to uphold as cabinet Ministers. Anyone who thinks that we are in this situation because it is a witch-hunt is not true, the Committee is trying to do its work and it should be allowed to do so seamlessly.

Therefore, there is no reason to sit in this meeting and allow the Department to present on matters, which they cannot account for because the incumbent is playing “Merry-go-round” with the Members, as old as they are, they are being subjected to that.

She received a letter last night saying that the acting CEO is being replaced by another actor. That letter did not make sense and there was no rationale behind what she read. She could not comprehend it because it made no sense. In this situation, the Committee holds the baton to rescue itself from it.

A board has not been introduced to the Committee officially, but it is moving like a bullet train. She is worried because if the bullet train gets off the rail, a lot will collapse.

A Senior Counsel raised his hand and told Members that he was instructed last night by the Minister to appear before the Committee on her behalf.

The Chairperson interjected and indicated that this was a meeting of the Portfolio Committee of Parliament and in this meeting, the people who have a right to speak are Members of Parliament, department officials, Ministers, or deputy ministers. There is no business to deal with the senior counsel. She told him that he can only speak at the court of law, not here. That instruction he received was ill-conceived. One would assume that he understood the Constitution compared to herself. He should have refused to come here but for him, it is business as usual and that must continue. He is wasting his time. He is not mandated to speak.

Mr A Matumba (EFF) said that the Constitution makes it clear what the role and responsibilities of Members are. There is an oversight model of Parliament, which makes it clear that Parliament should, in terms of Section 56(b) and 59(b) of the Constitution, requires the entity to report to it so that Parliament has a complete picture. In terms of performing the oversight duties, Members need to have the complete picture to do so effectively. Section 92 makes it clear that the Minister is accountable individually or collectively. The only thing that Members are asking is for the Minister to do her job as she is paid to do so.

The Committee is extremely disrespected by the Minister for sending counsel to talk to the Members. This country cannot be run like this where people just come in and seek to address the Committee. We are not running a banana republic or a spaza shop. The senior counsel should have advised against this.
He entered Parliament and wanted to force himself to speak in Parliament. This was wrong.

He agreed with the Chairperson’s sentiments and said that the Committee will not continue to be disrespected like this and that Members cannot engage the Department without the political head. Most of the matters in the report required a political head. There are monies up to the tune of R600 million spent on things Members do not know. For Members to do their work, the political head must be here.

Ms S Maneli (ANC) said that things were not getting better but worse. The level of disrespect is escalating. Unfortunately, this is not going to deter the Committee from exercising its oversight role. It should be clear what the next step should be because the Committee should not be derailed. She was of the view to progress to the next step because the Constitution is on the Committee’s side.

Ms M Gomba (ANC) said she was concerned about the agenda of the day because she did not see the presentation by the senior counsel featured as an item. He can sit in the meeting as an observer as any ordinary member of the public. He can only be allowed to be in the meeting if he comes in that capacity. Otherwise, he should not be allowed to continue being in the meeting. There is an attempt to undermine the Constitution of the country. The Minister is accountable to Parliament.

Ms P Mpushe (ANC) expressed her disappointment with the Minister’s behaviour. As part of exercising the oversight role of the Committee, the Minister continues to undermine the Committee. There was no indication of an apology from the Minister as well. There was no indication in the summons that the Committee would be conducting a hearing today; and there was no reason for the senior counsel to be present today. The senior counsel should be an observer. The Committee was getting behind in its work and she was disappointed because of this. The constitution and rules supported the Committee. There was information in the report that requires a response from the political head, including the Deputy Minister.

Ms H Winkler (DA) concurred with the sentiments of the Members that this was not a legal hearing that requires the presence of senior counsel. The Minister should be held accountable because the tourism sector has suffered a great deal under lockdown restrictions and a lack of collaboration between departments in this government. Our people are suffering and today Members have spent 30 minutes discussing the non-attendance of a minister. It was a sad situation. This makes one question whether the Minister deserved to remain in her position.

She requested that the Committee seek advice from Parliamentary Legal Services on what processes should unfold and if the Committee could officially table a resolution for the removal of the Minister.

The Chairperson conveyed the sentiments of the Members to the senior counsel to recuse himself from the Committee’s meeting. Senior counsel is not allowed to represent a cabinet minister in the portfolio committee. They must appear and account on their own.

The Committee Secretary presented the apologies at the beginning of the meeting and there was no apology received from the Minister. She thought that she could have legal representation. The Committee should perhaps write to the Speaker and request that Parliament offers a session to Ministers and Deputy Ministers about the rules of Parliament and the Constitution of South Africa.

She would also request the support staff to obtain hard copies of the Constitution and distribute them to the Members of the Committee.

No apology was received from the Minister today. The head of legal services of Parliament is present in the meeting and will empower the Members on the way forward. This will be done when the Department delegation is released because it is not part of their business to know that.

She reiterated a point she made in the last meeting; Members have no problem with the Department. They expect the Department to come before the Committee led by the political head. There are matters where the officials cannot speak with authority. In some matters, the officials are embargoed from responding. This was not the officials’ fault that we are in this situation.

The political principals want to come before the Committee selectively. This cannot be accepted. Some of the matters that are unfolding in the Committee, the Minister was warned about them at the caucus level of the ruling party. It is unfortunate that it has come down to this. The Minister is expected to be accountable to Parliament and this is a Committee of Parliament.

She pleaded with the acting DG in the last meeting to only take a flight to Cape Town when there is assurance that the political heads are also coming. The Department is present but there is no principal. The acting DG was also warned that it would be better to take a 6 o’clock or 05h40 flight than come to Cape Town and sleep here for nothing. This translates to fruitless expenditure. Seemingly, the Committee’s advice was not taken seriously. Next time, they should ensure that the political heads would be leading and arrive in the morning. If the flights are delayed, the Committee will wait instead of dealing with issues of fruitless expenditure that he must account for in this Committee.

When the Department leaves this meeting, it must empower itself with the Constitution of the country so that tomorrow everyone sees that the Committee was not being petty. If the Committee was being petty, the Speaker of the National Assembly would not have given concurrence to issue the summons to the Minister to appear before the Committee. This is an unfortunate situation. The Committee will successfully drag people to its level so that we all understand each other. The problem is that people think they are in the level above all, such people must be dragged to our level so that we have an understanding and appreciate the responsibilities of each other.

The Committee prefers to confine itself within the prescripts of the laws of this country. Members have an obligation to uphold the law and apply the rules of Parliament.

The Chairperson said the Acting DG can comment if he wants to otherwise he and his team were excused.

The Department was released from the meeting proceedings.

The media person that was allegedly “sent” by whoever was also released.

The Chairperson called on the Parliamentary Legal Advisor to brief the Committee on how the next steps would unfold. She assisted the Committee with the summons because the Committee is required to involve legal services on matters of this nature. Those processes were followed; hence the Committee confidently applied the rules of Parliament and the Constitution of the Republic.

Briefing by Parliament’s Constitutional and Legal Services Office (CLSO)
Adv Fatima Ebrahim, Senior Parliamentary Legal Advisor, CLSO, indicated that the process of summoning anybody to come before Parliament is an extraordinary action. It is not something that Parliament does often, hence the Speaker is sought for concurrence to ensure that the Committee has taken all reasonable steps to secure voluntary participation before issuing the summons.

Indeed, it was on her instruction that this course was taken because the Minister failed to appear on several occasions and there was various correspondence sent on this matter. It was the first time that somebody had not honoured the summons. It has never happened before. However, the Powers, Privileges, and Immunities of Parliament and Provincial Legislatures Act provides the process for summoning. It lays out, in Section 14, how the process should unfold for a person who failed without sufficient cause to attend, at the time and place specified in the summons. This person who does this commits an offence and is liable to a fine or imprisonment not exceeding a period of 12 months or to both a fine and imprisonment. It is a criminal offence in terms of the Act. The caveat is if a person had been duly summoned but failed to appear because of sufficient cause. The sufficient cause would mean the person has not shown sufficient reason to support their non-attendance; for example, a person is summoned to appear before the Committee and gets into a car accident or is hospitalised would never be a sufficient cause for the Committee to lay criminal charges because it is out of the control of the person.

She was surprised there was no apology and an address to the Committee on what the sufficient course is. In order for the committee to make a determination whether to proceed with criminal charges, it needs to consider if the reasons proffered are sufficient. It appears that there are no reasons provided. Nothing has been put forward and it seems like a “flagrant disregard of the summons”. It would be necessary for the Committee to resolve if it wishes to lay criminal charges in terms of the Powers and Privileges Act. In her time in Parliament and she checked with colleagues, no one has been faced with this situation before. She advised that the resolution should include that the Committee Secretary lay those charges on behalf of the Committee and does the necessary affidavits that would be required. The reason for that is that the Committee Secretary has personal knowledge in terms of invitations sent, apologies received or not received and the process that has led up to this point.

If the Committee resolves to lay charges, which would be the first time, the CLSO will assist with the process.

Mr M De Freitas (DA) asked before embarking on this step, are there any other steps that the Committee could take before getting to this proposal. He would not want this process to be seen as a “witch-hunt” but to be seen as a matter of principle that the executive is accountable to Parliament and if a committee calls them, that they are obliged to attend.

The Chairperson clarified that Adv Ebrahim was not suggesting that the Committee should take that step but presenting what would be the next steps in the situation the Committee finds itself in.

Ms Gomba asked Adv Ebrahim what she thought about the senior counsel who was sent to the Committee and if that is procedural. Was the response of the Committee appropriate to request him to leave the meeting?

Mr Matumba asked what the consequences were of not adhering to the summons as per the Constitution. Which legislation and section does it emanate from? Who must implement consequence management after a decision is taken?

Ms Mpushe was not certain if the Minister understood the predicament that we are in. For the Committee not to take the next step, the Minister must present valid reasons. From the onset, the discomfort was that the Minister was undermining the Committee and continued to do so, hence she did not forward an apology and sent legal counsel instead. She was not suggesting that the Committee should follow the criminal charge route, but she wondered if she really understood the implications of her actions. The chairperson was correct; those who become cabinet ministers should be made aware of the rules and the constitution. She advised that the Committee should wait for the arrival of the Chief Whip to take a decision on the matter.

The Chairperson said that at this point it would be prudent for Members to write a report to the Speaker on this matter. Because different organisations are represented on the Committee, perhaps a report in writing to the Chief Whip of the majority party about this matter, and from there, Members await the response. She was trying to accommodate what Mr De Freitas suggested and that the Committee be “a bit patient”. It should perhaps report this matter officially and highlight the consequences of what the Minister has done, which is now an offence.

Adv Ebrahim clarified that she was only there to explain what the next legal step would be if the Committee chooses to take that route. Nothing prevents the Committee from following any internal processes. This is an extremely extraordinary matter that the Committee is faced with, and it is not a decision to be taken lightly.

The Constitution allows any person to attend a committee meeting as an observer. While Parliament’s processes are open, it does not give anyone the right to participate without the necessary prior arrangement. The Chairperson may exercise this discretion and allow a person to speak. This was done in the section 194 committee recently.

She suspects that the reason the senior counsel was present was to convince the Committee that there was an element of unreasonableness in relation to the summons. According to the Minister’s advisor that had contacted her, the Minister claimed that the summons was only received yesterday. It was sent on Friday night, and it was acknowledged, as per the staff, and she had advised prior that this should be expected. This may be one of the issues they wish to raise but it would be entirely inappropriate. What should have happened is that those reasons should have been put in writing and presented to the Committee with a request that the legal counsel be allowed an opportunity to amplify or elaborate. There was nothing wrong with the way the Committee handled that process in her view. She was surprised that an external legal advisor was used because this is something that the acting DG could have spoken to.

The consequences of not adhering to the summons can be found in the Powers and Privileges Act.

The fact that the Act says it is an offence does not mean that it does not follow the normal criminal procedure. What would happen is you would lay a charge and the normal criminal processes would unfold where eventually a court will have to decide whether a person has failed without sufficient cause to attend. A good example would be if the committee proceeds to the criminal part of the proceedings notwithstanding the fact that the person did have a valid reason, for example, they were hospitalised. No court would then reasonably find that a person is then guilty of an offence.

There is no reason for a Minister to not understand that they are accountable to Parliament. In fact, all the departmental officials should also understand this. The Constitution is very clear on this, and Parliament must ensure that accountability takes place.

It would be up to the Committee to decide on the way forward.

Mr De Freitas supported the Chairperson’s proposal to write a letter to the Chief Whip of the majority party. It should also be addressed to the Speaker who is ultimately the head of the institution.  In that letter, it must be suggested that even though the Minister claims she only received the summons yesterday, it is irrelevant because she should not have to be summoned in the first place. It was now the third week that the Committee requested the Minister to join a meeting. It is not good enough to say that the summons arrived late.

Ms Maneli supported the proposal to exhaust all other means before arriving at the one that Members are being pushed to. She supported the letter to the Speaker.

She sought clarity from Adv Ebrahim whether it was true that the Minister is not part of the Committee and where that leaves the Committee.

Ms Gomba added that it is not only the constitution talks about accountability, even the PFMA talks about that. She supported the letter to the Speaker to inform her about the difficulties the Committee was experiencing with the Minister. Instead of coming here for free, money is spent on senior counsel which is expensive. She expressed her disappointment in relation to this.

Ms Winkler noted the Legal Advisor’s note that if the Committee fails to take the requisite steps the Committee would also be in dereliction of its duties, and it can be held accountable for not following the due process to hold the executive to account. As much as other processes may be considered, it must not come at the expense of the Committee not exercising its duties. After writing to the Speaker and the response is not adequate, the Committee should proceed with the legal advice as presented.

The Chairperson said there is agreement on the next steps to take. The summons was indeed received by the Ministry on Friday and the Committee Secretary confirmed the acknowledgement of the receipt on Friday. It is rather fallacious to claim that the summons was received yesterday. Over and above that the programme of the Committee is sent to the Department and the Ministry after approval, religiously. To claim the lateness is neither here nor there because the Committee is still using the dates as appearing on the programme, there were no specific days designed for her to appear before the Committee.

Adv Ebrahim said the Minister is not a member of the Committee, but the Committee is an extension of the House. However, she is a Member of Parliament and of the Executive. She is accountable to Parliament and directly to this Committee. Similarly, the Minister would also have to make appearances at SCOPA.

The PFMA does indeed cover the executive authority, which in this case would be the Minister and the definition of executive authority is a cabinet member who is accountable to Parliament. This definition reinforces the issue of accountability to Parliament. It also sets out the various roles that the executive authority plays, particularly in relation to annual reports and issues of finances. She understands that this is one of the matters that the Committee requires the Minister to respond to.

The Chairperson thanked Adv Ebrahim for availing herself and empowering the Committee.

Consideration and adoption of the draft Committee minutes
Draft committee minutes of the 8th of November 2022 was presented by the Committee Secretary.

There were no substantive changes made to the minutes and it was adopted.

Robben Island Oversight Visit
The Chairperson said that she was surprised by the supposed delay on the Robben Island oversight. Bureaucracy is a serious problem for the government of this country. They wrote a letter to the Minister of Sports, Arts and Culture requesting permission for the Committee to go to Robben Island. She was perplexed by this because the Committee is not required to ask permission to conduct oversight. Instead of going back and forth with the Committee Secretary, she phoned the Minister and asked when he was responding to the letter. He asked what letter and she explained. He then asked her a question, in vernacular, ndingenaphi? (Meaning how does he come in? or it is none of his business) because it is not within his jurisdiction to venture into that space. The Committee’s duty was not to inform the institution that it would be coming, and not to request permission.

This oversight visit was scheduled to take place on Friday.

The Committee Secretary said he thought it was a courtesy to inform the Minister that the Committee would be conducting oversight at Robben Island. He apologised to the Committee and said that he would deal with the CEO.

Committee business – International Study Tour Trip
The Committee Secretary informed the Committee that he had not yet secured accommodation for the Members.

The Chairperson suggested that the Committee Secretary should get in touch with the Secretary of the Portfolio Committee on International Relations and Cooperation to ask for assistance. He can call the embassy in New York to assist in soliciting three quotations so that they can be submitted. She did not understand why it was difficult for the Committee Secretary to find accommodation in New York.

Members expressed their frustrations with the capacity of the Committee Secretary in executing his duties. There are always stories from the Committee Secretary and Members who felt that the support staff was undermining the work of the Committee as well.

Members were concerned that halfway through November nothing came out of the announcements by the Secretary. Some Members felt strongly that the international trip may not happen because there are a lot of processes involved. Members have been requesting to be updated on the progress associated with the international trip.

It is taking the Committee Secretary three months to organise this trip.

The Chairperson wrapped this up on the matters and said the Secretary must communicate with the International Relations colleagues by today. Friday’s confirmation for the oversight visit must be received today.

If the Committee is unable to do the study tour this year, it would mean that the Committee would revisit the initial suggestion on Kenya. Things have stabilised now in Kenya. America was also suggested because South Africa has an office in New York, which has been cited by the AGSA as a contributor to the irregular expenditure in the department.

The Committee Secretary is to ensure that the visas and passports are attended to by today.

The meeting was adjourned.