Public Protector’s Report: deliberations

Meeting report

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

Chairperson: Mr I Vadi (ANC)

Relevant Documents :
Public Protector Report on NPA
Public Protector Attendance List (see appendix)

SUMMARY
The Committee unanimously agreed that the finding by the Public Protector that the Director of Public Prosecution (DPP) had not co-operated with him, was an issue of degree. The Committee noted that the DPP had co-operated with the DPP to an extent that was unsatisfactory to the Public Protector, but the former had supplied reasons. The Committee was deeply divided on whether to call the DPP to explain why he had made the public statement about prima facie evidence against the Deputy President. The ANC was emphatic that summoning the DPP would be akin to starting a fresh investigation. The Opposition, on the other hand, was of the view that it would be unfair to condemn the DPP before he could state his position.

Minutes
The Chair said that the Committee should move to its core task by looking at the findings of the Public Protector. He suggested that Members take out each finding and discuss the merits and demerits of each. The Committee had endorsed paragraphs 23.4.1, 23.4.2 and 24.4.3 of the report. Mr Godi (PAC) pointed out that paragraph 24.4.3 related to a constitutional obligation to co-operate with the Public Protector, and that all Parties were obliged to co-operate.

Ms De Lille asked whether Members would be able to make submissions at the end of the deliberation. The Chair clarified that the Committee would thoroughly deliberate on the salient issues before coming up with a draft report. The draft would be discussed before being tabled in Parliament, in line with Parliamentary rules.

Mr Van de Merwe (IFP) asked the Chair to confirm press reports t that the Deputy President had chaired the committee that nominated Members of this Committee. Mr Mentor objected that this issue fell outside the mandate of the Committee. Nomination of Members to the Committee was an internal party matter.

Mr Van de Merwe said that all he needed was a confirmation that the allegations in the media were true. Ms Camerer (DA) said that the matter was in he public domain and that therefore it was expedient for the Committee to deal with it. Mr Baloyi (ANC) said the Committee could not afford to indulge the media frenzy. The Chair ruled that this nomination process fell outside the purview of the Committee’s work.

Ms Camerer pointed out that the DPP had replied, in response to requests for documents, that these would only be made available when the DPP presented to the Committee. What would happen in the event that the DPP was not allowed to appear before the Committee? The Chair said the Committee had had a lively session on this in the previous meeting. It had been agreed that the Committee would now consider findings and observations. Ms Taljaard (DA) protested that she had repeatedly raised the question of documents without as much getting a ruling on the application. She had also requested an opinion on the sub-judice rule and none had been forthcoming. The Chair reiterated that he had already made a ruling on the matter of sub-judice.

Ms Camerer said that paragraph 24.4.3 would need to be re-worded for clarity. Ms Tobias (ANC) disagreed and thought it important that Members stick to the substance of the report. Mr Masutha (ANC) pointed out that the wording in reference to the Constitution – the supreme law - was very much in order. Ms Camerer clarified that she had no problem with the substance, but the wording did not capture the spirit of the Constitution.

On paragraph 24.4.3, Mr Baloyi said that the Public Protector had indicated that due process would be observed to ensure that the sub-judice material was treated in utmost confidence. He considered that the Public Protector had taken an amicable approach in line with the principles of collaborative government. Mr Swart (ACDP) said that it would be very difficult for the Committee to come up with a factual finding on 24.4.3. The current statement was harmful to the DPP so it would be necessary to call the DPP to give his version of events. This was an area in which the Committee would need to take extreme caution before arriving at a conclusive decision.

Ms De Lille said it was not possible to reject or confirm all the findings by the Public Protector. In order to do so, the Committee would need to get all the documents in the possession of the Public Protector. Without these, it was difficult to establish the level of non-co-operation. This matter went to the core of the democratic process and the Committee would need to discuss it exhaustively before moving forward.

Ms Taljaard insisted that the sub-judice rule was key because the DPP alluded to the ongoing prosecutions as a basis for not releasing the requested documents. Mr Baloyi said that if the Committee summoned the DPP to bring additional documents, a new chapter of investigation would have been opened with all the attendant complications. This measure would in no way assist the process. The different positions of the principal players was that the performance of the Public Protector and the DPP should be interpreted in terms of their constitutional mandate.

Ms Mentor said that the key finding by the Public Protector would remain just that – a key finding. In terms of the Constitution and the Public Protector’s Act, Members were obliged to respect the Public Protector’s findings. This was necessary even if Members disagreed with the contents of the report. She proposed that the Committee note the finding without passing a value judgement.

Ms Camerer observed that paragraph 24.4.3 gave a value judgement that the DPP’s conduct was improper and unconstitutional. It was however imperative that the Committee note that it was dealing with two vital offices with powers derived from the Constitution. The Public Protector was within his power to ask for documents and the DPP was obliged to release them. The DPP had however to ensure that he did so without fear or favour. The DPP’s refusal to fully co-operate with the Public Protector might not have had a constitutional basis. This crucial assessment was not reflected in the report. The Committee had not had the benefit of perusing correspondence between the two institutions to determine the necessary bona fides. There was no back-up documentation to assist the Committee to arrive at an informed decision.

Ms Johnson (NNP) said she did not believe any amount of further documentation would sway matters either way. As a Committee, Members could not conclusively agree or disagree with the finding. Mr Masutha agreed and noted that indeed the Committee was reluctant to express a view that would impair established constitutional imperatives.

Mr Van de Merwe noted that the Public Protector’s findings formed the bedrock of the recommendations. His Party was unable to accept the finding of paragraph 24.4.3. The allegation of failure to co-operate by the Public Protector was not factually true. The DPP had sent the entire report to the Minister of Justice.

Mr Godi said the finding at 24.4.3 showed that failure of co-operation was a question of degree. There was clearly no evidence of malice on the part of the DPP. It is also important to determine to what extent the alleged failure to co-operate compromised the contents of the report, which was fairly substantial.

Mr Masutha said that the Committee should suggest direction for the relationship between the two institutions. It was not for the House to determine whether the conduct of an institution was constitutional. Ms Van Wyk agreed and said the Committee should consider the report in terms of the principles of collaborative governance.

Ms De Lille then noted that the finding at 24.5 and that at 24.6 were similar and should be considered together. Ms Camerer said that there was no doubt that the DPP’s public pronouncement did infringe the dignity of the Deputy President, but the question was whether this was justified. In the absence of any further documentation to supply clarity, it was difficult for the Committee to determine whether the statement was justified. The DA would for this reason reserve its position. Ms Mentor suggested that the Committee accept the finding at 24.5 since the statement by the DPP was not justified.

Ms Taljaard said that the Public Protector was expressing an opinion on a matter the DPP has considerable discretionary. It was the prerogative of the South Africa Human Rights Commission to make such findings. Ms Johnson pointed out that nobody was questioning the DPP’s powers, but how discretion was exercised. Mr Godi agreed and noted that the issue was not whether the DPP had sufficient evidence on which to base his allegations, but whether it was proper for the DPP to make public pronouncements. Mr Swart preferred to reserve his opinion on 24.5, noting that the finding called into question the complex debate on human dignity.

Mr Van de Merwe submitted that the DPP should be accorded an opportunity to explain himself. In the event that the Committee rules otherwise, his Party would not support that finding. On the face of it, the DPP was wrong. Mr Masutha said that the manner in which the DPP handled the matter was improper. Ms Camerer insisted that the DPP be obliged to explain his decision since the matter was already in the public domain at that time. There was considerable pressure on the DPP to release the findings of an earlier investigation.

Ms Mentor pointed out that the DPP had considerable discretion to be tempered with policy guidelines, such as not make public pronouncements that harm other people’s dignity. Ms Van Wyk urged the Committee to accept the finding at 24.5 in order to reinforce the duty to public institutions to operate within the framework of policy guidelines. Ms Taljaard said that the word “unjustifiable” carries a value judgement, which calls for an interrogation of matters related to the offending statements. The weight of the accusation was such that it could not be dealt with in a single sentence. Ms Tobias was of the view that the statements were unjustifiable since the DPP had failed to comply with section 31 of the National Prosecutions Act. The section gave guidelines on how to handle such matters. Ms De Lille amplified the caution by Mr Masutha that only courts were in a position to adjudicate on matters of breach of constitutional rights The Public Protector’s report was inconclusive to this extent. Ms Camerer asked Members not to apply the question of policy in a selective manner. The DPP was obliged to undertake processes in a fair and transparent manner.

As far as the finding at paragraph 24.7 was concerned, Mr Baloyi said that it was based on the probability that the complainant was not informed. He suggested that the Committee note the finding without committing to accept or reject the same. All parties agreed to this proposition.

The Chair noted that Members have taken the same position on 24.8, as was the case in 24.4. Ms Van Wyk said that 24.9 had been overtaken by events.

Mr Swart said the finding at 24.10 should be supported as a factual reality. Ms Van Wyk agreed and noted that indeed the Hefer Commission had found there was a serious problem of sensitive matters being leaked from the DPP’s office. Ms De Lille and Ms Camerer concurred. The latter noted that the President had indeed established an management team with integrity in this regard.

The Chair said the Committee had made considerable progress on the report. The Monday meeting would go straight to the recommendations. Ms Camerer wanted to know whether parties would be allowed to present arguments at the next meeting. The Chair explained that each party would be called upon to state its position in regard to the recommendations. Should the Committee support the recommendations, then this would carry implications on future processes. On the other hand, should the Committee reject the recommendations, then the Committee could come up with alternative positions on the matter.

The meeting was adjourned.

Appendix:

 

AD HOC COMMITTEE ON PUBLIC PROTECTOR
23 June 2004

Chairperson: Vadi, Mr I

African National Congress

Baloyi, Mr M R
Gxowa, N B
Masutha, Mr T M
Mentor, Ms V
Mthembu, Ms B
Mtshali, E
Sibanyoni, Mr J
Tobias, Mr T
Vadi, Mr I
Van Wyk, Ms A

Democratic Alliance

Camerer, Ms S M
Taljaard, Ms R

Inkatha Freedom Party

Van der Merwe, Mr J H

United Democratic Front

Holomisa, Gen B H

New National Party

Johnson, Adv C B

Independent Democrats

De Lille, Ms P

Azanian People’s Organisation

Not present

Pan African Congress of Azania

Godi, Mr T

African Christian Democratic Party  (observer status)

Swart, Mr S