Hon Chairperson, following an investigation by the Public Protector's office into complaints of maladministration, corruption and irregularities in the procurement of the Riverside Office Park to accommodate the head office of the Independent Electoral Commission in August 2013, the Public Protector issued her report on this matter entitled "Inappropriate Moves: Report 13 of 2013-2014".
At the same time, the Speaker of the National Assembly received a letter from the Public Protector to which Report 13 of 2013-14 was attached for the Speaker's information.
In her letter to the Speaker, the Public Protector stated, amongst other things, that:
... the widely spread submissions made by Adv Tlakula, Chairperson of the Electoral Commission ... in which she challenges my investigation's procedural and substantive fairness has raised serious concerns.
... in view of the above and in order to ensure that fairness prevails, I would humbly request you, the Hon Speaker, to intervene in terms of section 2(b)(iii) of the Public Protector Act, Act 23 of 1994, and consider referring the matter to the Chairperson of the Electoral Court to allow him an opportunity to consider investigating the matter in terms of section 20(7) of the Electoral Commission Act.
On Wednesday, 11 September 2013, the National Assembly approved the resolution establishing an ad hoc committee to "consider and report on the recommendations contained in the Public Protector Report 13 of 2013-2014, and also to consider the request of the Public Protector that the report be referred to the Electoral Court".
At its first meeting your ad hoc committee agreed to request formal written responses to the Public Protector Report 13 of 2013-14 from the IEC; the Chairperson of the IEC, Adv Tlakula; the former commissioners of the IEC; and the Auditor-General's office, which the ad hoc committee subsequently received.
In addition, as chair of the ad hoc committee, I wrote to the Public Protector seeking clarity on her reference to section 2(b)(iii) of the Public Protector Act, because there is no roman figure (iii) in section 2(b) of that Act. In her written reply, the Public Protector corrects the incorrect reference and then goes on to state in paragraph 3:
... my intention for referring the matter to the Speaker was for him to consider the report as both institutions of the Public Protector and the Electoral Commission report to the Speaker administratively. With respect, it was never my intention to have the report tabled in Parliament
Equally significantly, the IEC states in its written response in paragraph 3:
... our understanding is that the Electoral Commission is not empowered to deal with this matter in-so-far as it relates to one of the commissioners. Accordingly, we will wait for the hon Speaker to advise us of the advice given to the President on the appropriate action considered to be taken
Moreover, in order to assist the ad hoc committee in its consideration of this matter, the committee requested a legal opinion from Parliament's legal advisers. This legal opinion went a long way in assisting the ad hoc committee to reach the conclusions contained in the report before the House.
It must be noted that the intention of the Public Protector was for the Speaker to meet with the IEC, to the exclusion of its chairperson, and consider whether action should be taken against Adv Tlakula for her role in the procurement of the Riverside Office Park. The ad hoc committee rejects this recommendation for the reasons provided in our report and asks the National Assembly to endorse its findings by adopting this report, which was agreed to unanimously in the ad hoc committee. In conclusion, allow me to express the ad hoc committee's thanks and appreciation to the offices of the Speaker and the Deputy Speaker, and to the Office on Institutions Supporting Democracy for their assistance and co- operation. We also express our appreciation to the secretariat of the committee for their efficiency and assistance. Finally, I would like to extend my thanks to all hon members of the ad hoc committee, particularly the hon James Selfe and the hon Johnny de Lange. I thank you. [Applause.]
There was no debate.
The Chief Whip of the Majority Party: house Chairperson, I move:
That the Report be adopted.
Declarations of vote:
Chairperson, the referral of the Public Protector's report on the IEC's headquarters has exposed critical weaknesses in the relationship between the Public Protector and other Chapter 9 institutions, as well as the relationship between the Public Protector and Parliament.
In her report, the Public Protector specified remedial action which ought to be taken, including effectively ordering the Speaker to meet with Independent Electoral Commission to the exclusion of its chairperson and that they should advise the President of the appropriate action to take.
In a letter to the Speaker dated 28 August 2013, Adv Madonsela asked that the Speaker refer the Chairperson of the Independent Electoral Commission to the Electoral Court - arising from the submissions the chairperson of the IEC had made to the media.
In a letter dated 2 October 2013, the Public Protector said that the report should be referred to the Electoral Court, stating "the court would perhaps come to a different conclusion from mine". These directives and requests were unlawful and unconstitutional. What is urgently required is legislation or an amendment to the rules that regulates the way that reports of the Public Protector are dealt with by the National Assembly.
As legal opinion requested by the ad hoc committee puts it:
In order to be of assistance to the Public Protector in respect of similar incidents in future, and acting in terms of section 181(3) of the Constitution, the National Assembly may consider a legislative intervention to address the legal challenge that became evident in the instant case.
While we support the report, we make the appeal that we make it possible for Parliament to deal effectively with reports of the Public Protector. I thank you. [Applause.]
Chairperson, I am taken a bit by surprise. I did not realise that there were going to be declarations, but I think we should add a few things to the report. [Interjections.]
Order! Order, please!
I think Members of Parliament should really take time to go and read this report. When you read it, you will find that it is actually very embarrassing because of its quality. I mean, hon Landers has been very kind in the report he has given, without pointing out all the difficulties, because it is not often that all the parties in this Parliament unanimously agree to something. Without a lot of debate on this matter, we all unanimously agreed that we should not entertain this report because what has been suggested is unconstitutional and legally not feasible.
When we wrote the letter to the Public Protector and she wrote back, she apologised for quoting the wrong clauses. Firstly, for the Public Protector to write a letter to the Speaker of Parliament and quote her own Act incorrectly is unacceptable. Then she quoted section 8 and said that she was acting in terms of section 8. Section 8 says that if you make findings that you think the National Assembly should deal with, then you should refer your report to Parliament. In the next sentence she wrote that she never intended for Parliament to discuss the report, although she had just indicated that she had acted in terms of that section.
The recommendation in the report - listen to this - is to "the Speaker of Parliament", not the "Speaker of the National Assembly". The Public Protector does not even know that it is the Speaker of the National Assembly. Then, the "Speaker of Parliament" must, in consultation with the IEC but without the chairperson of that body, decide whether action should be taken. I must be honest with you that a Grade 1 kid would not make a legal suggestion like that. It just breaks every tenet of the separation of powers in how government should operate, to suggest not that Parliament should do it but that the Speaker should do it. Firstly, she does not understand that the Speaker operates through Parliament. That is why the Speaker, even though what he received looked so funny, obviously referred it to the committees - he acts through them.
Then, of course, at no stage did she say at all that she was looking at the removal of the head of the organisation. Somehow, someone must have mentioned it to her when she sent the report. So she wrote about it in her letter to us, although in her report she never dealt with the removal. She wrote asking, "Why do you not just pass this on, because she said something nasty about me in the media? Why do you not just pass this on to the Electoral Court, because there is a dispute?"
Please go and read the legislation that this Parliament passed on how to deal with the commissioner. Please do yourself a favour, and also go and read the report yourself. Thank you very much. [Time expired.]
Motion agreed to.
Report accordingly adopted.