Litigation between Commission & its former chairperson and other litigation cases; Findings & recommendations of Public Protector and Auditor-General; Committee programme

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Meeting Summary

A parliamentary legal adviser reported that the Commission considered that most of the recommendations in the forensic report talked to the need of putting in place measures that complied with best practice, Public Finance Management Act prescripts and other regulations. In the Commission's view, these measures were currently being implemented. The Commission considered that most of the recommendations did not state clearly that the Commission must litigate; it hoped that the Chief Law Advisor would give direction on where it was imperative to litigate.

The legal adviser reported that the Commission was currently involved in litigation or arbitration with Four Rivers Trading, Ms Nomboniso Gasa (former chairperson of the Commission), and Axolute Technologies - whose contract for information technology services contract was cancelled due to non compliance with procurement and supply chain management processes. Ms Gasa was in turn suing the Commission for leave payout.

Members argued that a legal adviser was not needed to tell the Committee what litigation was in progress. It was rather the legal adviser's role to analyse the situation and advise the Committee. The adviser said that he could not comment on these matters which were sub judice. A Member asked why the Committee was meeting when there were some matters that were sub judice. Members urged the adviser to examine the reports of the Public Protector and the Auditor-General of South Africa presented on 24 November 2010 and simplify them. The Chairperson added that the Adviser should examine the realigning of the clauses of the Commission on Gender Equality Act (Act No 39 of 1996) that were not in accordance with the Constitution. The adviser promised to forward that afternoon his observations on the clauses to be realigned and a summary of the reports.

A parliamentary researcher briefed Members on the Commission for Gender Equality's engagements with the Standing Committee on Public Accounts and the Portfolio Committee on Women, Children, Youth and Persons with Disabilities in 2010 on various issues including financial and programme performance. The Office of the Auditor-General had briefed the Portfolio Committee on 5 May 2010. The Public Protector and the Auditor-General's Office had briefed the Ad Hoc Committee on 24 November 2010. The researcher noted the key concerns of the reports of the Public Protector and Auditor-General: non-compliance with parliamentary processes, in particular, non-submission of strategic plans and annual reports; non-compliance with financial regulations; lack of an effective human resources management system; and issues of organisational development and governance. The key recommendations of the Public Protector's report included the responsibility of the National Assembly to amend the CGE Act to align it with the Constitution, and the National Treasury's responsibility to investigate irregular expenditure incurred by various Commissioners and staff while in acting positions. Key recommendations of the Auditor-General report included the Commission's responsibility to ensure compliance with relevant financial laws and regulations.

Members wanted the adviser's observations and summary in order to engage with the reports presented on 24 November 2010. The Chairperson therefore urged the adviser to make haste.

Meeting report

Introduction
The Chairperson welcomed Members, delegates, and observers, and asked all present to introduce themselves. Ms Yvette Abrahams, Commissioner, Commission for Gender Equality (CGE), and Mr Kamraj Anirudhra, Parliamentary Officer, Commission for Gender Equality (CGE) were in attendance.

Ms P Duncan (DA) pointed out that insufficient Members were present to form a quorum.

The Chairperson replied that no decisions would be taken in the meeting, so a quorum was not required.

The Chairperson asked Mr Mukesh Vassen, Parliamentary Legal Adviser, for an opinion on the status of the meeting.

Mr Vassen replied that it was an open meeting, and nothing confidential would be discussed.

The Chairperson suggested going ahead with the briefings of the Legal Adviser and the Researcher, and thereafter discussing the Committee's programme

Adv S Holomisa (ANC) supported going ahead with the briefings.

Litigation cases between the Commission's former chairperson and the Commission: oral briefing
Mr Vassen reported that Ms Keketso Maema, Chief Executive Officer, Commission for Gender Equality (CGE), had written to him by electronic mail (email) on 24 January 2011: the Commission considered that most of the recommendations in the forensic report talked to the need for the Commission to put in place measures that complied with best practice, Public Finance Management Act (PFMA) prescripts, and other matters - these measures were currently being implemented. The Commission was also trying to get an appointment with the Chief Law Advisor as most of the recommendations did not state clearly that the Commission must litigate; it was hoped that the Chief Law Advisor would help give direction on the best way forward especially where it was imperative to litigate.

The Commission's other litigation cases: oral briefing
Mr Vassen reported also, on the basis of the above email, that the Commission was currently involved in litigation or arbitration on the following:

Four Rivers Trading - the service provider engaged to perform organisational diagnostic and management counseling services;

Ms Nomboniso Gasa, former chairperson of the Commission, for an unauthorised overseas trip, cell phone bill and travel expenses for family members;

Ms Gasa was in turn suing the Commission for leave payout, which the Commission had withheld on grounds of the referred claim; and

Axolute Technologies - the service provider engaged to provide information technology (IT) services: Axolute’s contract was cancelled due to non compliance with procurement and supply chain management (SCM) processes.

Discussion
Adv Holomisa asked if Mr Vassen did not have a document to give to Members to assist them in their deliberations.

Mr Vassen replied that his oral briefings were the extent of his submissions. His briefings were based on the content of an email message received from the Commission for Gender Equality the previous day, 24 January 2011.

Adv Holomisa argued that a legal adviser was not needed just to tell the Committee what litigation was in progress. It was rather the legal adviser's role to analyse the situation and advise the Committee.

The Chairperson said that the Committee had requested Mr Vassen to look at the litigation in progress.

Mr Vassen replied that he had discussed the matter with the Secretary of the National Assembly. It was “self-imposed rule” not to discuss matters that were sub judice. However, this rule was interpreted”.

Ms S Rwexana (COPE) said that Mr Vassen must study the reports of the Public Protector and the Auditor-General of South Africa, analyse them, and give the Committee his comments.

The Chairperson added that Mr Vassen should examine the realigning of the clauses of the Commission on Gender Equality Act 1996 (Act No. 39 of 1996) that were not in accordance with the Constitution.

Mr Vassen promised to forward to Members that afternoon, 25 January 2011, his observations on the clauses to be realigned.

Adv Holomisa said that he had received his documentation only that morning, 25 January 2011. He imagined that Mr Vassen should examine the reports of the Public Protector and the Auditor-General of South Africa and simplify them for Members.

Ms B Dlulane (ANC) asked why the Committee was meeting when there were some matters that were sub judice.

The Chairperson said that she was in a difficult position, and called for further recommendations and advice as to how the Committee should proceed.

Ms Rwexana said that Mr Vassen's role was to advise the Committee on the reports, not merely comment on them.

Mr Vassen replied that he had misunderstood his mandate, but would review it that afternoon. However, he could not comment on the litigation in progress.

The Chairperson thought that distribution of copies of the Commission for Gender Equality's email message to Mr Vassen dated 24 January 2011 would therefore not assist Members.

Findings and recommendations of Public Protector and Auditor-General: briefing
Ms Crystal Levendale, Parliamentary Researcher, briefed Members on the Commission for Gender Equality's engagements with the Standing Committee on Public Accounts and the Portfolio Committee on Women, Children, Youth and Persons with Disabilities in 2010 on various issues including financial and programme performance. At a meeting on 05 May 2010 the Office of the Auditor-General had briefed the Portfolio Committee. The Ad Hoc Committee had been briefed by the Public Protector and the Auditor-General's Office on 24 November 2010.

Ms Levendale briefed Members on the key concerns of the reports of the Public Protector and the Auditor-General: non-compliance with Parliamentary processes, in particular, non-submission of strategic plans and annual reports; non-compliance with financial regulations; non-compliance with financial regulations; lack of an effective human resources management system; and issues of organisational development and governance.

She noted the key recommendations of the Public Protector's report. These included the responsibility of the National Assembly to amend the Commission's Act to align it with the Constitution, and the National Treasury's responsibility to investigate irregular expenditure incurred by various Commissioners and staff while in acting positions. The key recommendations of the Auditor-General's report were also looked which included the Commission's responsibility to ensure compliance with relevant financial laws and regulations.

Discussion
Adv Holomisa questioned the value of the media reports that Ms Levendale had offered to give out to Members.

Adv Holomisa wanted Mr Vassen to prepare his document the same afternoon, 25 January 2011 so that Members could engage with the reports of the Public Protector and the Auditor-General of South Africa presented to the Committee on 24 November 2010.

The Chairperson therefore determined that the Committee should expect Mr Vassen's summary by the end of afternoon of that day, 25 January 2011.

Consideration of the Committee's programme
Ms Duncan asked if the programme had changed, and if the Commission for Gender Equality had been informed of any changes of dates. She asked for clarity.

The Chairperson said that there had been changes in dates, but not to the items in the programme.

Ms Duncan was satisfied, except on whether the Commission for Gender Equality had been informed correctly as to dates.

The Chairperson confirmed that the Commission for Gender Equality had been informed.

Adv Holomisa suggested combining some of the briefings, and bringing forward the projected 28 January 2011 meeting to the afternoon of 26 January and holding a meeting on the morning of 27 January. He pointed out that the ANC had no caucus on Thursday morning this week.

Ms Dlulane supported Adv Holomisa's suggestion but asked that there be a discussion before informing those who would give the briefings.

Mr J Sibanyoni (ANC) supported the idea of a meeting in the afternoon of 26 January.

Adv Holomisa, further to Ms Duncan's introductory question (see above), advised that adoption of the programme did not require a quorum. Dates of meetings were a matter for the Chairperson and Committee Secretary to determine and inform those concerned.

Ms Rwexana objected to holding a meeting in the afternoon of 26 January 2011 since she had to attend a portfolio committee meeting at which the Minister concerned would be in attendance.

In reply to Ms Rwexana asking when the Committee's deadline was, the Chairperson said 31 January 2011.

Adv Holomisa suggested an appeal to the Whips to allow Members to give priority to the Ad Hoc Committee.

Ms Duncan said that she had prior commitments at a conference until Friday, 28 January 2011.

Ms D Robinson (DA) suggested Friday, 28 January 2011 for a meeting.

Ms Rwexana said that she would be unable to attend on that day.

The Chairperson said that the Committee Secretary would inform Members before they went home as to whether there would be a meeting on the morning of 26 January 2011.

Ms Rwexana asked for clarity on the date for the National Treasury's briefing.

Ms Robinson asked to be informed a by short message service (SMS) text message to her mobile telephone on account of problems with electronic mail (email) and the late delivery of post to the pigeon holes in the Marks Building.

Ms Duncan said that it was impossible for any committee secretary to claim that he or she did not know Members' email addresses, since these could be found on the website of Parliament.

Mr Sibanyoni asked for confirmation that the Committee was to meet the next day, 26 January 2011.

The Chairperson confirmed that the Committee would meet at 09h00 on 26 January 2011 subject to the response of the Commission for Gender Equality (CGE).

Ms Yvette Abrahams, Commissioner, Commission for Gender Equality (CGE) said that the Commission's Accounting Officer would be unable to arrive before 10h00 on 26 January 2011.

The Chairperson said that it would be necessary to obtain permission to hold any extra meetings.

Adv Holomisa asked the Chairperson to please inform the Deputy Speaker that the Committee needed to meet and that it needed more time.

The Chairperson replied that she would ask the Speaker for an extension of the Committee's deadline and for permission to be flexible in scheduling meetings.

The meeting was adjourned.

Note
No meetings of this Committee on 26 January 2011 were listed in the Order Paper issued late afternoon, 25 January 2011.

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