Rejection of re-nomination of Adv L Mpumlwana as South African Human Rights Commissioner

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Justice and Correctional Services

27 July 2010
Chairperson: Mr M Gungubele (ANC)(Acting)
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Meeting Summary

The Committee met to hear Adv Loyiso Mpumlwana’s comments around his appointment as a Commissioner of the South African Human Rights Commission, which, it later emerged, had been invalid because at the time of his appointment he did not fulfil the criteria for appointment. The Committee was called upon to decide if it would support a nomination for his appointment once all the circumstances were disclosed. The Committee noted that there had been a Court finding, in a dispute between himself and his former employer, the Truth and Reconciliation Commission, that he had committed fraudulent misrepresentation justifying cancellation of his contract. This finding had not been appealed. Secondly, the Committee raised concerns that at no stage during the initial interview processes that led to acceptance of his nomination did Adv Mpumlwana disclose the disciplinary action launched against him, nor the Court matter. Adv Mpumlwana agreed that his employment had formed the subject of a Court action, but took issue with the findings of the Court. He said that on the day of the hearing he had not been in a financial position to appoint an attorney to represent him, and he himself was ill, yet the Court proceeded to hear the matter in his absence. He alleged that the evidence presented by the Provincial Administration, for whom he was allegedly working simultaneously with his employment at TRC, was misleading, and that there were no proper records supporting their allegations. He outlined his salary disputes with Provincial Administration, and the subsequent payment of lump sums to him, in support of his statements that it was incorrect that he was attempting to work for two institutions simultaneously.

The Committee, whilst agreeing to hear Adv Mpumlwana’s side of the story, was nonetheless at pains to point out that this Committee could not act as a court of appeal, noted, in response to a direct question, that no appeal had been lodged by Adv Mpumlwana, and that therefore the findings of the court must be accepted. Members questioned why he had not sought to represent himself at the hearing, and asked in terms why he had not disclosed the matter at the time of his interview. Adv Mpumlwana said that he had regarded the procedure of responding to a public nomination and an active application for a post differently, that he had not been aware that he should have disclosed the matter, and that there was no attempt to mislead the interview panel. He also stated, in response to queries from Members, that the Bar Association had not taken disciplinary steps against him. Whilst some members of the Committee thought that the Court might have come to a different conclusion had it been able to hear Adv Mpumlwana, all Members agreed that it was not the function of the Committee to challenge the court’s findings and that, the time for appeal having lapsed, the findings of fraudulent misrepresentation justifying the civil claim stood, and his failure to disclose the matters fully to the interview panel were material to a finding that he was not a fit and proper person.

The Committee discussed its Third Quarter programme and decided to prioritise the Human Trafficking Bill and the Superior Courts Bill. Issues around the National Prosecuting Authority would be discussed on 11 August.


Meeting report

South African Human Rights Commission: invalid appointment and possible re-nomination of Adv Loyiso Mpumlwana
Chairperson’s opening remarks
The Chairperson noted that the Committee did not constitute a quorum, and for this reason the Committee, although it would engage with Adv Mpumlwana, would not make a decision at this meeting.

The Chairperson explained that this Committee needed to deal with matters around the nomination and subsequent appointment of Adv Loyiso Mpumlwana as a Commissioner to the South African Human Rights Commission. Firstly, there was a judgment against him awarded to the Truth and Reconciliation Commission (TRC), and secondly, this had not been disclosed by Adv Mpumlwana during the interview process.

Ms M Smuts (DA) said that Adv Mpumlwana had furnished a curriculum vitae (CV), which reflected that he had worked for the TRC, but did not disclose that there were certain difficulties between himself and the TRC that led to a court case. The High Court had found that Adv Mpumlwana had fraudulently misrepresented himself to the TRC when he was appointed to work there, because he was simultaneously in the employment of the Eastern Cape provincial administration. She added that the failure to disclose this to the panel conducting the interviews could be seen as a further misrepresentation, and she concluded that he could not be regarded as a fit and proper person to hold the position of Commissioner of the South African Human Rights Commission (SAHRC).

Ms L Adams (COPE) agreed with Ms Smuts, noting that Adv Mpumlwana’s CV had created the impression that his appointment to the TRC had followed upon conclusion of his employment at the Eastern Cape provincial administration, whereas the Court had confirmed that this was not the case, and that he was in fact employed in two posts simultaneously.

The Chairperson requested Adv Mpumlwana to address the Committee on any other issues.

Adv Mpumlwana thanked the Committee for giving him the opportunity to give his side of the story especially since he had never had a chance to do so.

He noted that the court case involving the TRC had revolved around two issues, and both had in fact been dismissed by the Court. Firstly, the Court held that the TRC had not proved that Adv Mpumlwana had not worked efficiently for that body, and that the TRC was thus not entitled to damages on that point. He noted that the case had been decided in his absence. He had had no money to appoint an attorney, and because this was a civil case, he was unable to apply for legal aid. On the day of the hearing he had been ill. The presiding judge, noting Adv Mpumlwana’s absence, had asked the TRC’s attorney to find out where Adv Mpumlwana was. That person, who was clearly not a neutral party, had informed the Court that Adv Mpumlwana had answered the phone at the offices of Adv Mpumlwana’s attorneys. Adv Mpumlwana described this as “ridiculous”.

He noted that the key witness supporting the claims of the TRC about the dual tenure of posts was a certain Mr Baleka, who was not working in the office of the Premier at the same time that Adv Mpumlwana had been working there, nor even when he had departed. Mr Baleka’s evidence to the Court had suggested that in fact he had personal knowledge of Adv Mpumlwana’s working at the provincial administration, when this was not the case. In addition, Mr Baleka, in his evidence to the Court, had alleged that Adv Mpumlwana had used a government vehicle, although Adv Mpumlwana noted that logbooks had to be filled in and the vehicle returned after every use. It was alleged that Adv Mpumlwana had not resigned from the Eastern Cape provincial government. This had in fact happened, and a letter had been drafted to that effect. Adv Mpumlwana noted that during his tenureship in that post, although he was a Chief Director, he was paid only the salary of an Assistant Director. This was queried and the Public Service Commission had ruled that he should be paid the correct salary retrospectively from the time of commencing employment. This had not been done. Mr Titus, who was supposed to be Adv Mpumlwana’s senior, denied, when Adv Mpumlwana had resigned, that he fell under his division. Adv Mpumlwana then called for assistance from the Director General, who decided that Adv Mpumlwana should be paid the difference between what I had been paid already and whatever was outstanding.

The Chairperson interrupted at this point, and asked Adv Mpumlwana if he agreed that the Committee did not have the competence to enquire into the merits of the judgment.

Adv Mpumlwana replied that he was not sure why the Chairperson was asking the question.

The Chairperson replied that he was asking Adv Mpumlwana if he thought the Committee could look into the merits of the judgment.

Adv Mpumlwana said that he thought the Committee was interested in his side of the story, and that it was investigating the matter. He thought that it was necessary to look at the background to and circumstances surrounding the judgment, otherwise there was no point in proceeding further. He reiterated that at the time of the judgment, he had no money to appoint a legal representative, and he had been ill.

The Chairperson said that it was important that all parties were clear on the matter as it progressed.

Ms Smuts said that the Chairperson’s original statement was correct. The Committee was not an appeal forum to decide the merits of the judgment.

The Chairperson said that there was no harm in listening to the circumstances.

Mr S Holomisa (ANC) said that it should be made clear that the Committee had not made up its mind on the matter. He asked that Adv Mpumlwana should be allowed to express himself fully.

Ms Adams thought that in fact it would be one-sided and would cause harm; this process would be fair only if the Committee listened to the circumstances put forward by the TRC and its attorneys as well. However, this process would be making this Committee into an appeal body, which it was not.

The Chairperson said that there was agreement that the Committee was not a court. Nonetheless, it was required to listen to Adv Mpumlwana’s side of the story.  

Adv Mpumlwana continued that he was putting his evidence before the Committee, who should be the determining body as to whether or not he was a fit and proper person. He said that the records of the Court made it clear that there were proper documents about his tenure at the Eastern Cape Provincial Administration. Mr Baleka admitted that he was not employed at the time of Adv Mpumlwana’s tenure. Eastern Cape Provincial Administration owed, and later paid the debt to Adv Mpumlwana. The evidence given by the Provincial Administration was also contradictory, as it alleged on the one hand that Adv Mpumlwana stayed in a government house, yet said that he could not be found during the alleged period of my tenure. He reiterated that he had already resigned, as the circumstances at the Provincial Administration became untenable. He had not lied to the TRC. He had been head-hunted by TRC Commissioner Mr Ntsebeza, and was asked, during the interview, how soon he could start. He had responded that he could do so within 24 hours, as he was working temporarily elsewhere. His work at the TRC centred around investigations on intelligence and counter intelligence. He began to describe some of this work, alleging that his investigations into a perpetrator showed that this person had a relationship with an investigator.

Ms Smuts interrupted and asked where this was going. 

The Chairperson said that the Committee was dealing with Adv Mpumlwana’s own circumstances, so statements should not be made about other individuals who were not present.

Adv Mpumlwana said that he would withdraw what he had said. He said that when he reported on his findings, he was suspended by the TRC. The TRC did not call for a disciplinary hearing five days after the suspension, in accordance with its own rules. A disciplinary hearing was held, but this occurred four days after his contract with TRC had expired. He had resigned from the TRC during the disciplinary hearings (sic) and the TRC did not arrive at any disciplinary verdict.

Adv Mpumlwana said that he did not lie to the Committee, nor did he lie in his CV. He stood by what was included in that CV. It was a subjective analysis that would be undertaken to ascertain whether a person was a fit and proper person. He had been a practising Adv since 1994. The Bar Association did not raise any objections. He summarised that he had played a vital role in communities and had also taken on cases pro bono.

Discussion
Mr G Ndabandaba (ANC) asked why Adv Mpumlwana had not defended himself if he did not have money.

Adv Mpumlwana replied that representing oneself in law was not advisable, as one would not be objective enough. If he had had the opportunity to be present, he would have explained to the judge what had happened.

Ms Smuts asked Adv Mpumlwana to why he felt it was not a material omission for him not to address the issues of the judgment and the disputes with the TRC. She noted that a person who included, in his CV, a statement that he had worked for an organisation in a senior position was effectively using their name to recommend himself to the Committee. It was misleading of him not to mention the dispute, nor to mention that a Court judgment had found that he had fraudulently misrepresented himself. In light of such a recurrence of misrepresentations, she asked how the Committee, in all good faith, could appoint such a person.

Adv Mpumlwana replied that he had not misrepresented himself to the TRC. It was not clear from Ms Smuts’ remarks what should have been mentioned or left out. There was no act of bad faith, and the name of the TRC was not used with any intention of trying to cheat the Committee.

The Chairperson asked if Adv Mpumlwana had mentioned in his CV that he worked for the TRC.

Adv Mpumlwana replied in the affirmative.

Mr J Sibanyoni (ANC) asked what Adv Mpumlwana had done so far regarding the judgment.

Adv Mpumlwana replied that the prescription period for noting an appeal had passed, and there was nothing that could be done about it. 

Ms Adams asked if Adv Mpumlwana agreed that his CV created the impression that the one job followed directly on the other. She also asked how he expected the Committee to find out about the judgment if he had not mentioned it. She asked for his comments whether that judgment did not have a bearing on whether or not Adv Mpumlwana was to be regarded as a fit and proper person.

Adv Mpumlwana replied that he did not lie or cheat about the judgment.

Mr Holomisa asked if the Bar Association had raised this matter formally with him. He also asked if Adv Mpumlwana would have qualified for legal aid. He asked him to explain the breakdown of the amount received that was owed to Adv Mpumlwana by the provincial administration.

Adv Mpumlwana replied that the Bar Association had not raised the matter at the time, nor had tried to raise it since. In regard to legal representation, he noted that legal aid would not have applied as at the time it was being granted only for criminal, and not for civil cases. He reiterated that it would have been preferable for him to have hired a lawyer rather than representing himself. In regard to the amounts, he said that the calculations were based on the amount owed for the first two months of his work, when he was not paid, plus the difference between what he had been paid and the amount he should have been paid, from the third month onwards. He had demanded that the money be paid in a lump sum.

Mr Holomisa asked if that money was paid as a lump sum or if it was broken down.

Adv Mpumlwana replied that he was never paid the two months’ initial salary. The Director General had finally made an order to pay him the difference between what he was paid and what he was supposed to have been paid.

Mr Holomisa asked whether this money was paid monthly, or in a single lump sum.

Adv Mpumlwana said that the first payments were made monthly, and the rest was a lump sum.

Mr Holomisa asked over what period of time these payments were made, during the tenure of Adv Mpumlwana at the TRC.

Adv Mpumlwana replied that the first payments were made over three months. The Eastern Cape Provincial Administration admitted in Court that there had been a mistake on this point and had thought that the payments over the three months represented a salary. The Provincial Administration had eventually, after a year, paid the remainder by way of a lump sum payment.

Mr S Swart (ACDP) apologised for being late. He expressed concern that the Committee seemed to be delving into material aspects of the judgment.

The Chairperson replied that this matter had already been dealt with.

Ms Smuts interjected that although the Chairperson had decided that the Committee was not an appeal body, the Committee was still continuing to stray into the merits of the judgment. 

The Chairperson said that the Members had all agreed that the Committee could not change the judgment. However, he said that it was necessary to listen to Adv Mpumlwana’s side of the story, and the Committee could not decide in advance what should or should not be listened to. The Committee was not re-examining the judgment.

Mr Swart asked Adv Mpumlwana had paid the costs order that was made against him.

Adv Mpumlwana responded that although the plaintiffs had been granted a costs order, they had not asked for the costs.

Mr Swart said that in his view, Adv Mpumlwana had made a grave omission in not disclosing material issues, and the onus was upon applicants for posts to divulge such issues.

Adv Mpumlwana replied that he did not know that he had to disclose this matter and he had not intended to undermine the Committee or mislead it. He had come to respond to a nomination. It was not the same as applying for a job by deliberately concealing information and constructing a false CV.

The Chairperson asked if it was unreasonable for the Committee to expect that, when Adv Mpumlwana constructed his CV and made mention that the TRC was a former employer, he would have been reminded of the dispute and would have divulged it to the Committee.

Adv Mpumlwana said that there was a difference between constructing a CV for purposes of seeking a job as opposed to responding to a nomination.

The Chairperson asked Adv Mpumlwana if, on the day that he appeared before the panel, he was merely asked to confirm his nomination and then told that he could leave.

Adv Mpumlwana answered that this was not the case.

The Chairperson asked if he was interviewed by the panel.

Adv Mpumlwana said that he was interviewed.

The Chairperson asked what the purpose of the interview had been.

Adv Mpumlwana replied that the purpose was for the Committee to ascertain whether they agreed with the nomination made by the public.

The Chairperson asked if Adv Mpumlwana would agree that another reason for the interview was that the panel could check if he was a fit and proper person.

Adv Mpumlwana replied in the affirmative, and said he was aware of this.

The Chairperson asked if the Court, in the matter brought against Adv Mpumlwana by TRC, had only to decide whether the TRC had suffered any loss, and calculate what the damages would be.

Adv Mpumlwana replied in the affirmative.

The Chairperson asked where the issue of fraudulent misrepresentation arose.

Adv Mpumlwana replied that it arose as a step during the Court’s assessment of the issue of damages.

The Chairperson read a passage from the judgment, which indicated that the defendant (Adv Mpumlwana) had “misrepresented himself” and this had induced the plaintiff (TRC) to enter into a contract with the defendant.

He asked if Adv Mpumlwana was still of the view that the Court did not have to make a finding on this matter, and it was just incidental to the main issues.

Adv Mpumlwana replied that the TRC had not made a claim to obtain compensation, as they should have, and this was the essence of what the judge had said.

The Chairperson interrupted at this point, and read another passage from the judgment, indicating that the plaintiff sought to cancel the contract on the grounds of fraudulent misrepresentation. The TRC did successfully cancel the contract, according to the finding of the court.

Adv Mpumlwana retorted that he did not know if one could cancel a contract retrospectively.

Mr Swart said that there were two claims against Adv Mpumlwana. The TRC, firstly, sought to cancel the contract. In this regard, the Court found that the cancellation was justified, on the grounds of fraudulent misrepresentation by Adv Mpumlwana. TRC, secondly, sought damages arising out of the contract. However, the Court found that during his employment, Adv Mpumlwana had rendered services, from which the TRC benefited. However, he added that if the Provincial Administration had sought damages against Adv Mpumlwana, based on the fact that he was being paid although he was not working for them, they would have succeeded. He also added that if there was a criminal charge laid against Adv Mpumlwana on the basis of the fraudulent misrepresentation found by the civil court, this was likely to have succeeded.

Adv Mpumlwana disagreed with Mr Swart.

Mr Holomisa asked if the court heard any evidence or testimony from the defence or any witnesses of Adv Mpumlwana.

Adv Mpumlwana said that the court was not presented with witnesses or evidence in his defence. If the court had heard this, it would have come to a different decision.

Mr Swart said that Adv Mpumlwana’s inability to present his case was his own fault.

Adv Mpumlwana reiterated that he was unable to appear because he was sick, and did not have money to brief anyone. He supposed he would have to accept the responsibility. However, he added that if someone was not well, then he would have thought that no reasonable judge would have continued with the case.

The Chairperson noted that the Committee now had a quorum and could decide the matter.

Ms Smuts said that Adv Mpumlwana did not, at the time of his appointment, in fact qualify for appointment. She did not believe that she could support any re-nomination of Adv Mpumlwana, as he ought to have disclosed these matters to the panel. She felt that the Committee was bound by the finding of the Court that he had committed a fraudulent misrepresentation and that he was thus not to be regarded as a fit and proper person.

Mr Swart supported the view of Ms Smuts, saying that his party could not support a re-nomination.

Ms Adams agreed with this viewpoint.

Mr Holomisa said that Adv Mpumlwana’s failure to disclose the judgment was a strong point against his nomination. The ANC was not in favour of his re-nomination. The manner in which the matter was handled was not good. He said that if Adv Mpumlwana had presented his case, the court would have arrived at a different conclusion, but that because he had failed to do so, the court’s decision stood.

Mr Ndabandaba supported this point.

Dr M Oriani-Ambrosini (IFP) said that the Committee was obliged, by the Constitution, to appoint the best person for the job. The deliberations of the Committee seemed to tilt the scales against this candidate and possibly in favour of other candidates. However deliberations of the Committee were not all supported.

Mr Sibanyoni said that the Committee could not challenge the decision of the court, but it should be borne in mind that this was a judgment given in the absence and default of Adv Mpumlwana.

Draft Programme for the Third Quarter
Mr Vhonani Ramaano, Committee Secretary, ran through the draft programme for the Third Quarter.

The Chairperson enquired why the 19th Constitution Amendment Bill was not mentioned on the programme.

Mr Ramaano replied that the Superior Courts Bill and the Constitution Amendment Bill were still with the Department of Justice and Constitutional Development. These would perhaps be introduced in the middle to end of August. The were proposals from some members of the Committee that the Prevention and Combating of Human Trafficking Bill (HT Bill)  should be dealt with, as some work had already been done on it.

Mr Swart said that the Committee felt very strongly about this. Prevention of human trafficking was a pertinent issue that had to be fast tracked; even the Minister of Justice had said as much.

Dr Oriani-Ambrosini said that perhaps there should be a preliminary engagement on key issues with the Department before it drafted the Superior Courts Bill, which was a fundamental matter. The legislation on harassment would, in his view, be more urgent, as it covered matters that were presently not legislated for in any other enactments. Human trafficking, however, could be prosecuted under other laws.

Ms Smuts agreed with Mr Swart. In answer to Dr Oriani-Ambrosini, she said that the process was already quite far and the Bills were about to be tabled, and the sooner they were considered, then the better.

Ms Smuts felt that the Committee had to have an oversight session on the National Prosecuting Authority (NPA). The National Director of Public Prosecutions (NDPP) had been instructed by the President to put any restructuring plans on hold until after the finalisation of the performance agreements between the President and Government Ministers. Despite this, the restructuring had continued. Although she had written to the Minister on this point, he had not yet replied, and she felt that it was urgent for the Committee to meet with the Minister or NDPP.

The Chairperson said that the Committee was in agreement that the HT Bill was important. The next issue would be the Superior Courts Bill. The Committee had agreed that if there were negative developments in the NPA then they should be submitted in written form.

Ms Holomisa thought that the matter of the NPA was covered, as it was on the Committee’s programme for 11 August 2010.

The Chairperson summarised that the HTBill would be prioritised but not at the expense of the Protection from Harassment Bill. The next issue would be the Superior Courts Bill.

The programme was adopted with amendments.

The meeting was adjourned







 








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