National Treasury on the CGE's legislative framework, accountability structure & internal control environment ; Office of the Auditor-General of South Africa & Public Protector on the impact and efficacy of the progress reported by the CGE

Meeting report

Introduction
The Chairperson welcomed Members, delegates, officials, and observers, and asked all present to identify themselves. The Minister's Special Adviser, Mr David Dlali, and Mr Sipiwo Matshoba, Parliamentary Liaison Officer, Ministry of Women, Youth, Children, and People with Disabilities were also in attendance.

National Treasury on the Budget of the Commission, background on the process and role-players involved in determining the allocation of funds: briefing
Ms Gillian Wilson, Chief Director: Public Finance, National Treasury, outlined the legislative framework of institutions supporting constitutional democracy. Such institutions were independent and subject only to the Constitution and the law. No person or organ of the state might interfere with the functioning of Chapter 9 institutions: Section 181 (4) of the Constitution and Section 10(2) of the Commission for Gender Equality Act.
Chapter 9 institutions were accountable to the National Assembly and must report on their activities and performance to the Assembly. Ms Wilson noted special requirements for transferring any funds to an entity within or outside Government (slide 1).

Ms Wilson outlined the accountability structure of the Commission. The Commission was required, in consultation with the Minister of Finance, to appoint a suitable, qualified person as Chief Executive Officer. Commission staff should be appointed on terms and conditions, including terms as to period of service, as determined by the Commission in consultation with the Minister of Finance. The Chief Executive Officer was to be accountable to the Commission. The phrases “in consultation with the Minister of Finance”, and “be accountable to the Commission” were emphasised (slide 2).

The internal control environment of the Commission was outlined, with particular reference to the requirements of the Public Finance Management Act (PFMA) which in the case of the Commission had been violated when the Office of the Chairperson of the Commission was subsumed into the office of the Chief Executive Officer. Under the PFMA, the accounting officer or the acting accounting officer must be an officer, normally the chief executive officer, but never a member of the executive (the Commission). Ms Wilson referred to the Auditor-General of South Africa's report (see 24 November 2010 meeting of this Ad Hoc Committee) which described the internal control environment of the Commission as high risk and susceptible to fraud, with no clear procedures guiding the relationship and interaction between the Commission and the administration of the Commission, and the lack of leadership and failure of the executive (the Commission) to take appropriate action on previous reports (slide 3).

Ms Wilson outlined Treasury's role in regard to financial misconduct by public officials, with reference to Chapter 10 of the PFMA and Treasury Regulation 4 (slides 4-5).

Ms Wilson outlined the procedures for an investigation of alleged financial misconduct under Treasury Regulation 4, and Section 85(1)(b), (c ) and (d) of the PFMA. In such cases, the accounting officer must within 30 days of the date of discovery of an alleged financial misconduct ensure that an investigation was conducted and if confirmed ensure that a disciplinary hearing was held. If the allegations were against the accounting officer, the relevant treasury must ensure that the relevant executive authority initiated an investigation and if allegations were confirmed hold a disciplinary hearing (slide 6).

The role of the National Treasury in the case of maladministration and misuse of funds, with reference to Section 1(c )(ii) of the PFMA and Practice Note 4 of 2008/09 was outlined. Under the PFMA an accounting officer must take effective and appropriate steps to prevent unauthorised, irregular and fruitless and wasteful expenditure and losses resulting from criminal conduct. If irregular expenditure was incurred, institutions needed to obtain the necessary authorisation to regularise the expenditure. According to the Practice Note, if the National Treasury would not agree to condone the irregular expenditure, the institution must recover the money from the relevant officials “or apply debt write-off policy” (slide 7).

Actions of the National Treasury on the findings in the Public Protector's report were indicated. The appointment of two members of the Commission (the executive) as chief executive officer, being unlawful and irregular, had the consequence that the expenditure occurred in the period of the appointment might constitute irregular expenditure and should be investigated. National Treasury's action was described in detail (slide 8).

R4 million was spent on an organisational diagnostic process with no tangible result of any value. This expenditure could have been avoided if due care had been exercised. It constituted fruitless and wasteful expenditure. Authorising such expenditure by the accounting officer should be investigated. The National Treasury's action was that it wanted the Commission to provide the National Treasury' with documents to demonstrate the value derived from the diagnostic process. If no satisfactory value was added, National Treasury wanted to recommend that the Commission take the necessary steps to recover this money. Based on the findings of the Public Protector and the Auditor-General this expenditure should be reported to the National Treasury as irregular expenditure, and a request should be submitted to National Treasury to regularise the expenditure (slide 8).

National Treasury considered that the appointment of a consultant as chief executive officer and accounting officer appeared to be unlawful and that the expenditure that occurred in this period might therefore have resulted in irregular expenditure and had to be investigated. National Treasury had sought a legal opinion. National Treasury was not sure if the irregular expenditure could reasonably be recovered (slide 9).

According to the Auditor-General's report, it was important that the Commission's plenary compile and implement a proper corrective plan to address the irregularities identified. National Treasury's Action was that the office of the Accountant General would assist in the monitoring of the implementation of this corrective plan and report to the management of the Commission on a regular basis. Irregular expenditure should be reported to the National Treasury.

Ms Wilson outlined interventions of the National Treasury to date and why the money was still voted. The Commission had promised monthly reports on the turnaround strategy's implementation (slide 10).

Ms Wilson indicated recommendations for remedial action in the Public Protector's report (see 24 November 2010 meeting of this Ad Hoc Committee) She said that it was important to note that the Commission had progressed from an audit disclaimer in 2008/09 to a qualification in 2009/10. However, most of the management positions remained vacant; the position of chief executive officer was filled on 01 August 2009; and the interviews for the post of chief financial officer were to be held in the first week of February 2011 [not 2010 as in the presentation document]. In most findings, especially those of the Auditor-General, there were indications of a lack of internal controls and a weak control environment; limited personnel; and limited segregation of duties. However, National Treasury took a positive view that none of these findings were difficult to correct if managerial positions were filled with appropriately qualified people. (Slide 11)

Ms Wilson observed that she thought that the Commission had begun to implement its turnaround strategy “in May last year” [in May 2009 according to the presentation document, slide 10] to see what impact that turnaround strategy would have on the Commission.

Discussion
A Member asked how long it would take for National Treasury’s legal department to give its opinion. (Slide 9).

Ms Wilson did not want to offer any excuses but replied that this was one of the busiest periods for the National Treasury, on account of the budget process, but she could safely say that National Treasury hoped to obtain, by “the end of this month”, the legal opinion that it had requested from its legal section.

Ms Wilson said that she had spoken to the Accountant General that morning. He had formed an opinion that no further investigation was needed. However, National Treasury believed that this legal opinion was important.

Ms D Robinson (DA) asked if Ms Wilson meant “by the end of February”.

Ms Wilson confirmed that this was so.

Ms P Duncan (DA) asked why the National Treasury did not fund the Commission directly.

Ms Wilson acknowledged that this was an important and valid question. Probably a legal specialist would be the best person to answer.  The present path of funding was attributable to the laws governing the Commission.

Ms Duncan asked why the Commission had to fall under a particular governmental department.

Ms Duncan asked why was the Commission not under the Ministry of Finance? It was the Minister of Finance who appointed the chief executive officer. She was very concerned about this. Why were such institutions subordinate to governmental departments?

Ms Wilson referred Ms Duncan to the Commission's Act, according to which the structure was established. However, she thought that the Act was outdated, as indicated in the report and suggested that Parliament should review the legislation.

Mr J Sibanyoni (ANC) said that he would not ask about matters that were sub judice.

Mr Sibanyoni observed that the National Treasury seemed still to be busy with its work, especially in view of its awaiting the opinion of its legal department. However, the Ad Hoc Committee, by its nature had a limited time frame, and was required to complete and submit its report shortly. Would the Ad Hoc Committee be closing its chapter with the National Treasury while the Treasury was still completing its work?

Ms Wilson said that the National Treasury would like to hasten in its work so that it could also assist the Commission. It was working towards a target of the end of this month [February 2011] with regard to advising the Commission with respect to the findings of the Public Protector's report.

Mr Sibanyoni noted that the problems had begun in 2008. In addition, he asked if National Treasury could say that there were new signs of life at the Commission.  Or had things not changed?

Ms Wilson said that she had nothing substantial to say. She saw no indications of such new signs. According to the last report to Parliament, there were to be monthly reports from the Commission to Parliament on the implementation of the turnaround strategy. She was not sure that those monthly reports had been forthcoming. She understood that the Commission had begun to implement the turnaround strategy in May “last year”.

Ms Wilson referred to the Public Protector's report and the Auditor-General's report of October 2010. She was not sure that the turnaround strategy had implications up to the point when those reports became available.

Ms S Rwexana (COPE) asked if the position of chief executive officer at the Commission had not been filled in August 2010, not 2009 [as stated in the presentation document, slide 11].

Ms Wilson replied that maybe somebody from the Commission could indicate whether the position of chief executive officer had been filled or was still vacant.

An official spoke briefly to Ms Wilson, who replied thereafter that on the basis of information given to her at that moment, the chief executive officer position had been filled in August 2010 [not 2009 as in the presentation document, slide 11].

Ms Rwexana asked if the position of chief financial officer was still vacant. 

Ms Wilson said that interviews for the position of chief financial officer would be held in the first week of February 2011 [not 2010 as in the presentation document, slide 11].

The Chairperson asked Ms Wilson when the Commission had begun to implement its turnaround strategy.

Ms Wilson replied that it had begun to implement the strategy in May 2010. 

Ms Robinson asked how the Commission was to report to Parliament. In the past it had reported to the Speaker of the National Assembly and to the Department of Justice and Constitutional Development, but currently nothing was being done. Its monthly reports should therefore come to the Ad Hoc Committee, and, after the dissolution of the Ad Hoc Committee, to the Portfolio Committee on Women, Youth, Children, and People with Disabilities. She asked for clarification.

Ms Wilson understood that the Commission's monthly reports should be sent to the Speaker, who in turn would refer it to the relevant parliamentary committee.

The Chairperson pointed out that only Members of Parliament, the National Treasury, the Office of the Auditor-General, and the Public Protector, could participate in the meeting.

Office of the Auditor-General of South Africa on the impact and efficacy of the progress reported by the Commission in implementing its recommendations
Ms Caroline Mampuru, Business Executive, Auditor-General of South Africa (AGSA), gave an oral presentation without any accompanying documents on the AGSA's responses to the progress report given by the Commission by way of its presentation at the Ad Hoc Committee's meeting held on Wednesday, 26 January 2011.

Ms Mampuru said that the AGSA, having briefed the Ad Hoc Committee on the findings of the AGSA's report (see 24 November 2010 meeting) also examined what the Commission had done or planned to do to address some of the AGSA's findings and make progress.

Ms Mampuru mentioned that since the report and briefing in November 2010 some of the steps to be taken by the Commission had not been taken; that was because of the time frame. However, she highlighted areas were improvements had been made:

 

• The Commission had now established a policy on cell 'phone use.

• The Commission had now implemented the process of electronic transfer and was no longer writing cheques. That greatly reduced the risk identified in the AGSA's last report
• The Commission had also closed its call account, and regularised the issues of the 10 irregular bank accounts that it had.

•The Commission had amended policies and clarified the issue of delegation of duties.

 

Ms Mampuru highlighted that the issues relating to Ms Gasa, the former chairperson of the Commission, the matter was before a court of law.

Ms Mampuru said that the progress thus far was “very encouraging”. Fraud and theft was being greatly reduced by the various measures that the Commission had taken.  Some of the other issues required time.  The AGSA was confident that the Commission had begun to turn itself around.

Office of the Public Protector on the impact and efficacy of the progress reported by the Commission in implementing its recommendations
Mr Themba Mthethwa, Chief Executive Officer, Public Protector, gave an oral presentation without any accompanying documents. He presented the Public Protector's responses to the progress report given by the Commission by way of its presentation at the Ad Hoc Committee's meeting on Wednesday, 26 January 2011. He gave some of the Public Protector's findings as well.

Mr Mthethwa reminded Members as to how the Public Protector and the AGSA had decided to divide the investigation, what the Public Protector had done to fulfil the Protector's mandate, and then indicated what the Commission had done.

Some of the findings, such as those related to the Commission's Act, had not required the Commission to intervene. The Public Protector found that the Commission's Act definitely needed amendment, and that the Act might not be in line with the Constitution.

The Public Protector had found that there might be some legal implications following decisions taken by the Commissioners when their number was less than the legally prescribed minimum as per the Act. The Commission had given no indication that it was attending to this matter. 

Mr Mthethwa noted that the Public Protector's report [tabled at the 24 November 2010 meeting of this Ad Hoc Committee) was not the Public Protector's first report on the Commission. The Public Protector had not found any evidence in the Commission's presentation to the Ad Hoc Committee to show that the Commission had acted on the Public Protector's first report.

The Public Protector had found that certain contracted chartered accountants had been treated inhumanely when their contracts had been terminated. The Commission should at least have offered them an apology.
The Commission had responded that to do so would be tantamount to an admission of guilt. The Public Protector would probably have to engage the Commission to find out if there had been any resolution.

In respect of the appointment of two commissioners as the chief executive officer, the Public Protector did not hesitate to say that this amounted to maladministration. There must be a distinction between the accounting officer and the accounting authority.

Mr Mthethwa noted that the Public Protector had submitted the Protector's report to the Director-General at the National Treasury in October 2010 so that the Treasury could attend to the above matter. It was now understood that the National Treasury had referred the matter to its legal advisor.

Mr Mthethwa referred to the two employees of the Commission who were moving around the organisation without consultation, and this may have been unfair and unjustified. There was nothing to indicate that the Commission had addressed this matter. The Public Protector had also raised the issue of the R4 million spent on an organisational diagnostic process. The Public Protector had indicated that there was nothing tangible to show that there was value for money, and had asked the National Treasury to examine the matter as it constituted fruitless and wasteful expenditure and it needed to be investigated in terms of the Treasury Regulations. 

The Public Protector had also examined the matter of the spokesperson of the Commission, who had been appointed as acting coordinator in the provinces.  The creation of certain posts in the office of the chairperson was somewhat irregular and could constitute maladministration.  The Public Protector was pleased that the Commission had indicated that it was examining its policies and regulating its employment practices as well.

The Public Protector had also commented on the capacity of the staff complement and skills in the finance department. The Public Protector was happy that the Commission had indicated that it had done the skills audit. The Public Protector would be happy to know the outcome.

Mr Mthethwa noted that the Public Protector felt that the appointment of the chief financial officer was more critical, and really hoped that a decision would be made this week. The interaction between the Commission and its officials should be regularised. The Public Protector had not seen evidence of any guidelines or specific policy. The appointment of a consultant as the chief executive officer still needed to be investigated.
The Public Protector considered that it was necessary to recover irregular expenditure from the people involved.

The Public Protector wanted to examine the housing allowances.

The Commission's report indicated that there was no clarity whether the Commission's staff qualified for the occupational specific dispensation (OSD). Failure to carry out the 2009/10 performance assessment needed to be attended to. The Public Protector hoped to see that the Commission reported on the outcomes.

The Commission's policy framework was outdated and inadequate. The Public Protector was heartened to learn that the Commission was working on that matter.

Favouritism should be avoided in selecting the members of the delegation for the annual meeting on the Commission on the Status of Women. This also applied to the annual trip to New York. According to its report, the Commission had not addressed that issue.

The Public Protector asked the National Assembly to amend the Commission's Act and fill the vacancies of the Commissioners. The Public Protector had asked the Director-General at the National Treasury to examine specifically the irregular expenditure incurred by specific commissioners. 

The qualifications and the skills of the staff within the Commission needed to be verified.

The Public Protector was happy that “induction” was now being carried out.  However, something needed to be done to improve the skills within the financial department.

Mr Mthethwa said that the above were the Public Protector's observations. “The report will definitely follow.”

Discussion
Mr Sibanyoni asked for the Office of the Auditor-General to confirm that the Commission was now “on track”.

Mr Lourens van Vuuren, AGSA Business Executive, said that it was important to reflect on some of the challenges that the Commission was faced with. If one looked at the Commission's Action Plan, there were some “quick fixes”, like closing the bank accounts.  The AGSA was happy with that. 

Mr Van Vuuren said that the Commission's Action Plan and feedback, however, related more to structural issues - firstly appointing people in the right positions, developing policies, followed by implementation of the policies. One needed to take that into account. It would take longer to fix these matters and reach the desired result. He used the example of supply chain management, a unit for which had been established in December 2010. Everybody would need to be trained in the institution. The internal audit had recently been established and would then start to do some work on those systems and procedures. It might therefore still take some time to be fully effective.

It was important not to forget that in terms of the prior expenditure, in 2007/08, it was still important that the Commission investigate all the credit card transactions and all the procurement transactions. As there was now an internal auditor at the Commission, it should be possible to do that.

Ms M Tlake (ANC) thought that matters at the Commission were still as they were before and asked the Public Protector what the way forward was.

Mr Mthethwa replied that the Commission had made some progress on some issues. However, some issues fell within the responsibility of the National Assembly or the Ministry. The report had been commissioned by the National Assembly. The Public Protector had completed its mandate and forwarded its findings to the Speaker and to the Ad Hoc Committee. It was now really up to them to decide what to do as to the implementation of the recommendations. Ordinarily, however, if a person complained to the Public Protector, its monitoring department would ensure that the recommendations were being implemented. In the event, the Public Protector would raise the matter with Parliament.

The Chairperson agreed that some of the recommendations had to be implemented by Parliament. If one looked at one of the monitoring aspects, the Public Protector said that it would monitor the progress made with the recommendations detailed in paragraph 7. In terms of the Public Protector's monitoring, were these adhered to by the Commission?

Mr Mthethwa replied that the Public Protector had had no interaction with the Commission this year, and was in need of the Commission's report to this Ad Hoc Committee [the report tabled on 26 January 2010] and to hold meetings with the Commission with a view to the monitoring, which was a recommendation as well.

Ms Tlake said should be noted that the Ad Hoc Committee's life span was limited.

Mr Sibanyoni asked who would conduct the monitoring.

Mr Mthethwa replied that that the Public Protector could not enforce its decisions. Implementation was subject to the goodwill of the person to whom the Public Protector's recommendations were made. Its reports were tabled to Parliament through the office of the Speaker of the National Assembly. Then the executive authority could be summoned by the Speaker. However, If Parliament, which commissioned this report, wanted the Public Protector to do the monitoring, the Public Protector would definitely be willing to do the monitoring; but the responsibility for implementation would rest with the Speaker or the Ad Hoc Committee or so forth, since the Public Protector could not enforce its recommendations.

Mr Sibanyoni said that Members should be careful as to monitoring: he explained that the Commission was a Chapter 9 institution like the Public Protector and was subject to the Constitution – Members would not wish to trespass on the independence of such institutions.  

Mr Sibanyoni said that Members would expect an outcome whereby the Commission should function without intervention.

The Chairperson thanked Mr Sibanyoni for his explanation.

Ms Duncan urged that all concerned should prepare and submit their documentation to the Ad Hoc Committee in advance, so that Members could prepare their questions.

Ms Duncan asked if the National Treasury, the Office of the Auditor-General, and the Public Protector had seen the Commission's two “quarterly” reports.

Ms Duncan asked this question because as had been said “we are sitting with old problems”.

Mr Van Vuuren replied that the AGSA did not examine the quarterly reports as they were released every quarter. As part of the audit process, the AGSA would firstly verify from a compliance point of view if the Commission had submitted the reports in accordance with the PFMA and Treasury Regulations. Secondly, the AGSA would study those reports to identify risks. 

Ms Duncan observed that under spending was as dangerous as over spending.

Mr Van Vuuren said that the AGSA might identify under spending as a risk. Typically such a risk would relate to performance information, especially if there was reporting of under expenditure at the same time as over performance. 

In conclusion, when the AGSA began its audit process in April, it would look in detail at the systems that had been implemented. There was a possibility that before the implementation of those systems, there might still be some transactions where there might not be [inaudible at this point – part 1 1h 17m 23s] [that could not be verified].

The Chairperson thanked the Public Protector and the AGSA.

Commission’s staff members on their concerns about the Commission
Mr Pule Pule, Commission for Gender Equality Branch Executive Secretary, gave an oral presentation without any accompanying documents.

Mr Pule explained the governance and organisation of the Commission. There should be 12 commissioners, but currently there were only six, of which one was acting as the chairperson of the institution.  He said that the Chief Executive Officer had not afforded the staff the opportunity of meeting with her.  She had called a meeting only of the management committee.

The staff questioned the status of the human resources unit, which was failing to account to the decision-making board.  The marketing strategy of the institution was very poor. This was an embarrassment to the staff. The media term strategy of the institution needed to be discussed. Mr Pule had never seen it.

Consultation between management and commissioners was a huge problem. The training officers were not properly registered. The Commission was the custodian of gender and provided training to governmental departments to support the gender initiatives of the Government. 

There was uncertainty as to the relationship between the Commission's legal service and the Department of Justice and Constitutional Development. Some Government departments were failing to provide the Commission with information.

The powers of the legal officers to litigate needed to be discussed, and the researchers were in need of software to ensure quality reports to present to Parliament. It was still necessary to do things manually. Many staff worked overtime to produce reports. The staff wanted to be sure that their reports had an impact on Parliament and on the public.  The researchers produced reports on international conventions and also worked in provincial offices.

Heads of department did not communicate clearly with the provincial managers.  There was a need to conduct matters “in a good procedural manner.”  There was no continuity in the Programme of Action (POA). The involvement of the provincial managers in the POA was problematic because they wanted their own projects to be included and funded.  The budget of the Commission was not structured to take account of the needs of the provinces. Mr Pule could not comment on the supply chain or the database of suppliers. There were no systems at the provincial level. As an administrator, Mr Pule still did things manually.

There was concern that office assistants were performing cleaning services. Administrators were concerned about the level of training that they should receive in order to provide services. An incompetent person had conducted some training. Even now, Mr Pule did not have a job description. All he had was a performance agreement. Each year the staff submitted the provincial reports but did not know how these reports were presented. There had been no change regarding staff benefits. As to the cell 'phone policy, Mr Pule complained that he was not informed, even though he was an administrator. There had been a long-standing issue over the housing allowances, as with study allowances. There was need for training and staff development. The issue of medical aid remained.

Mr Pule referred to a memorandum that he had forwarded to Parliament. He said that some of the issues that he had mentioned were included in the memorandum.

Discussion
The Chairperson advised that the Ad Hoc Committee would not take any decisions in this meeting and would not interfere in any matters sub judice. The Ad Hoc Committee had merely given the staff members of the Commission a hearing and would now interact with them.

Ms Robinson asked if this memorandum was available to Members. It would have been useful to have it in advance.

The Chairperson replied that it had been circulated to Members.

Mr Pule said that he would go through the memorandum when Members asked questions.

Ms Robinson observed that the sate of affairs at the Commission was “shocking”. She quoted William Shakespeare's reference in Hamlet to the state of Denmark. The state of the Commission appeared to be “rotten”. Members must investigate this very seriously.

Ms Robinson said that Members' main focus was what had happened in the tenure of the previous chief executive officer. However, it was also urgent to look around at what was happening now.

Ms Robinson said that Members were encouraged by what had appeared, on paper, about the turnaround strategy. However, what she had just heard gave a completely different impression of things.

Ms Robinson welcomed the fact that the Commission’s staff was present and had been given the opportunity to present their views.  

Mr Sibanyoni thanked Mr Pule for his observations and asked him if, besides monitoring, the Commission should undertake some litigation. Also, he noted that Mr Pule had referred to accreditation by the law society. Had he understood Mr Pule correctly?

Ms Duncan recalled that she had asked for both the commissioners and the staff to appear before the Ad Hoc Committee. If an official like Mr Pule Pule did not know about the supply chain management, and if the chief executive officer did not yet call a meeting, these were all crucial indications that “the engine” of the Commission was not working. This was not acceptable.

Ms Duncan addressed several points. Firstly, she said that she had first to obtain the memorandum.
Secondly, she agreed with her colleague that Members must have a follow-up session. Thirdly, she asked
Mr Pule to provide Members with a written copy of his presentation. Lastly, she requested a copy of the Commission’s organogram.

 

A Member found it difficult to engage on this particular report. The Ad Hoc Committee's mandate was to look at the recommendations of the Public Protector and the Auditor-General. Neither the Public Protector nor the Auditor-General had said anything about the provincial offices. However, the Member agreed that it was good that Members had received, orally, Mr Pule's report.

In addition, the same Member contradicted her earlier statement and suggested that the Ad Hoc Committee should not further deliberate on Mr Pule's report. When as Members of Parliament, Members made their own assessment, they should determine how they should include Mr Pule's observations. The Commission had visited the Ad Hoc Committee, and the chief executive officer had given Members a report – a report that was totally different from what Members were hearing now from Mr Pule. This made Members' work very difficult. It was necessary to sit together, she said, just the Members of Parliament, and see how to take this matter forward.

Ms Tlake wanted to agree with her colleague above. It seemed that now “we were putting the cart before the horse”. “Definitely we are losing focus of the Ad Hoc Committee's mandate”.

Ms Tlake said that Mr Pule's observations linked with what the AGSA and the Public Protector had said.  Members should not interact with Mr Pule's observations, “because, for me, it goes together with what has been presented to us, that there is lack of system, there is lack of administration, [and] there is lack of management. For me I don't see all what the staff is saying coming correctly, if administration and the systems are not yet corrected. So, I would say, I think we are losing focus. We should not deliberate on this.”
The Chairperson thought that Members did not mean to say that the concerns of the Commission's staff should not be entertained.

The Chairperson said that what was important was to examine the Ad Hoc Committee's mandate. The Ad Hoc Committee's term was coming to an end. Perhaps if Members came to a conclusion, there might be agreement on taking Mr Pule's matter to the Portfolio Committee on Women, Youth, Children, and People with Disabilities so that it could be dealt with adequately. 

Mr Neil Newman, Researcher, NEHAWU, understood the difficulties arising from that fact that Mr Pule's observations did not form part of the Ad Hoc Committee's mandate.  One of the difficulties that his organisation had was why the head of the Commission was not present to hear the issues and indicate how the Commission would deal with them. Secondly, some of issues raised by Mr Pule were new. However, he did not wish to separate the other issues in the Commission from the staff's issues reflected by Mr Pule. Mr Newman did agree that they were different, nonetheless.

Mr Newman proposed instituting a process of dealing with all the issues – not separating the staff issues. The broader issues had an impact on the staff issues. Secondly, he proposed that the Ad Hoc Committee should not to be dissolved but should continue. Alternatively, he Newman proposed, the Ad Hoc Committee's work should be taken up by the Portfolio Committee on Women, Youth, Children, and People with Disabilities. Finally, he reiterated that the heads of the Commission must be present in these discussions, and deal with the issues raised.

Ms Tlake said that Members would not separate the Commission's issues from the staff's issues. The broader issues impacted on the staff issues, and highlighted a poor administration, poor management, and lack of systems. This was why the staff members were having these issues. Members were not going to separate them.

Mr Tlake suggested that the staff issues could be brought to the Portfolio Committee so that it could examine them critically but not with a sense of separation. 

Ms Robinson tended to agree with what had been said above, but, at the same time, pointed out that this was expanding what the Ad Hoc Committee had started with [on 24 November 2010]. What was needed was for the Ad Hoc Committee to obtain an extension to its mandate to widen the Ad Hoc Committee's focus. Although it was possible to continue the work in the Portfolio Committee, it was vital first to collect all the information and put it together, so that changes would not just be made on paper.  Aside from the problems of the past, there were still existing problems, and it was vital to get to the root of the matter. Otherwise, what this Chapter 9 institution should be doing for our nation would not happen.

The Chairperson noted that Members were not really in disagreement.

The Chairperson said that it would be opportune for the Ad Hoc Committee to be given enough time, and produce a decision as an Ad Hoc Committee.

Mr Pule referred to the Kader Asmal Report on Chapter 9 institutions. He also referred to an audit process in the provinces, in which all staff had been interviewed. A strategic session had been conducted. Recommendations had been made, but policies had not been implemented. There were documents submitted in 2008. When would the policies be implemented so that the institution could function?

The Chairperson replied that these concerns would be taken into account. She reminded Members that Parliament had not yet adopted the Kader Asmal Report.

The Chairperson said that this had been a valuable session, which had opened up other areas. Without the staff there was not organisation. It was vital to consider the staff.

Legal opinion on whether the Commission's former chairperson had a right or case to appear before the Ad Hoc Committee
The Chairperson asked the view of the Legal Adviser on the letter that had appeared in the newspapers.

Mr Mukesh Vassen, Parliamentary Legal Adviser, reported that last Friday he had been asked to give an urgent opinion as the Ad Hoc Committee was given a letter from the former chairperson of the Commission. The former chairperson's lawyers had asked whether she would be offered an opportunity to address Parliament.

In essence the legal question was whether the former chairperson of the Commission had a right, in terms of the rules, to be heard.

The Ad Hoc Committee's mandate was to consider and report on the forensic report of the AGSA and the Office of the Public Protector. In this regard the Ad Hoc Committee had requested briefings by various role players in order to assess the extent to which these bodies had implemented the recommendations of the AGSA and the Office of the Public Protector. 

As the Ad Hoc Committee would not be assessing the merits of the AGSA's and Public Protector's reports or their findings, it would not be making a finding on the former chairperson of the Commission. The Ad Hoc Committee was not a judicial or a quasi-judicial body. So the former chairperson of the Commission did not have a case or a right to appear before the Ad Hoc Committee.

On the other hand, the Ad Hoc Committee could, at its own discretion, “invite” her, but he warned against doing so, because the matters that she wished to raise were pending before judicial bodies, and were thus subject to the sub judice rule. 

Discussion
Ms Robinson pointed out that the former chairperson of the Commission had, in the press, launched “a blistering attack on the committee.” Ms Robinson recommended that the legal opinion should be communicated to the press so that a true reflection could be given: “We're not running away and hiding.”  

The Chairperson adjourned the meeting.

Other business
The Committee held a short closed session.