Trollip proposal to amend the Executive Members' Ethics Act (No. 92 of 1998)

Private Members' Legislative Proposals and Special Petitions

28 February 2012
Chairperson: Mr S Thobejane (ANC)
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Meeting Summary

A letter had been received from Ms Lindiwe Mazibuko, apologising for the inconvenience she had caused the previous week; the Committee accepted the apology on the basis that it did not happen again.

Trollip proposal: amend the Executive Members’ Ethics Act 1998 (Act 92 of 1998)
In his legislative proposal Mr Trollip had said that the growing list of President Zuma’s family members and friends who had reportedly benefited from business deals with the state since he assumed office was cause for serious concern.

Proposed amendments included:

- The decision regarding the conflicts of interest involving the President, his children and spouses should be made by the Public Protector. Currently the President was supposed to adjudicate his own conflicts of interest, which Mr Trollip felt was a conflict of interest in itself.

- State deals involving the President’s family members should come under specific scrutiny by the Auditor-General to ensure that all tender processes were followed and there were no special favours.

- The Public Protector should adjudicate whether the President had complied with section 2 of the Executive Ethics Code, which detailed “general standards” of ethics to which members of the executive must adhere. Currently the President was supposed to adjudicate whether he had complied with section 2, which again was a conflict of interest in itself.

- That the President’s register of interests be made more easily accessible to the public. Currently members of the pubic wishing to view the register had to arrange a viewing with the President’s office. It was proposed that the system be changed and the registry be published on the President’s website.

- The legislative amendments proposed would, if implemented, put in place important safeguards to limit the scope for presidential influence peddling.

- When it came to the President and his family, the highest standards of transparency and accountability should apply.

Mr Trollip had emphasised that the purpose of the amendments was not to target a specific individual, or a specific president, but was about ensuring that state resources were allocated on the basis of fair tender procedures, not on the basis of political connections.

Ms J Kilian (COPE) recalled that in many respects the President and the Premiers were responsible to adjudicate the ethics and the interests of members of the executive. The Office of the President was under discussion and it must be differentiated between the current incumbent and the office of the president; it should not be personalised, it was about how to protect that office from any rumours and media speculation. Measures needed to be put in place to protect the integrity of the office of the Head of State and to bring into discussion other instruments that could be used under the Constitution, such as the role of the Public Protector as well as that of the Auditor General. It was to scrutinise, to ensure transparency and openness. The Constitution provided for free economic participation but free economic participation by all could only take place where everybody had equal opportunity, therefore it was so important to ensure that access to tenders and the awarding of tenders were seen to be fair, open and transparent and that access to business with the state was not for a select few but for the broad public.

The principle in the introduction was a very important additional measure to support our constitutional dispensation. Politicians came and went but must leave behind institutions that would be able to serve the nation fairly going forward. She recommended that the legislative proposal be processed through the channels; the details could be further deliberated. The Committee only had to determine on the basis of the criteria set, and there was nothing against those criteria.

A debate ensued in which a member from the opposition party was asked not to bring President Zuma into the matter as the President had nothing to do with the issue at hand. The issue of the use of PMG minutes was also raised with some members seeking to utilise them whilst others arguing that the use of PMG minutes could not be used as records of Committee proceedings.


The Chairperson felt it would be unfair to deprive Members of consolidating their debate and an opportunity to seek a fair balance and opportunity for all.  The next meeting would start with finalising the matter, allowing leaders of parties to make final remarks; the sponsor would also be allowed to comment.

Meeting report

The Chairperson announced that a letter of apology had been received from Ms Lindiwe Mazibuko for the inconvenience she had caused the previous week; the Committee should accept that apology in good faith.

The report on the oversight visit to the KwaZulu-Natal, Gauteng and Limpopo Legislatures would be tabled next week.

Ms M Kubayi (ANC) proposed that Ms Mazibuko’s apology be accepted on the basis that it did not happen again.

Trollip proposal: amend the Executive Members’ Ethics Act 1998 (Act 92 of 1998)
In his legislative proposal Mr Trollip had said that the growing list of President Zuma’s family members and friends who had reportedly benefited from business deals with the state since he assumed office was cause for serious concern.

Proposed amendments included:

- The decision regarding the conflicts of interest involving the President, his children and spouses should be made by the Public Protector. Currently the President was supposed to adjudicate his own conflicts of interest, which Mr Trollip felt was a conflict of interest in itself.

- State deals involving the President’s family members should come under specific scrutiny by the Auditor-General to ensure that all tender processes were followed and there were no special favours.

- The Public Protector should adjudicate whether the President had complied with section 2 of the Executive Ethics Code, which detailed “general standards” of ethics to which members of the executive must adhere. Currently the President was supposed to adjudicate whether he had complied with section 2, which again was a conflict of interest in itself.

- That the President’s register of interests be made more easily accessible to the public. Currently members of the pubic wishing to view the register had to arrange a viewing with the President’s office. It was proposed that the system be changed and the registry be published on the President’s website.

- The legislative amendments proposed would, if implemented, put in place important safeguards to limit the scope for presidential influence peddling.

- When it came to the President and his family, the highest standards of transparency and accountability should apply.

Mr Trollip emphasised that the purpose of the amendments was not to target a specific individual, or a specific president, but was about ensuring that state resources were allocated on the basis of fair tender procedures, not on the basis of political connections.

The Chairperson reminded Members that the Committee would be guided by the six criteria of Rule 235(a) as amended, which were whether the proposal -

a) went against the spirit, purport and object of the Constitution;

b) sought to initiate legislation beyond the legislative competence of the National Assembly;

 

c) duplicated existing legislation or legislation awaiting consideration by the Assembly or Council;

d) pre-empted similar legislation soon to be introduced by the national executive;

e) would result in a money bill; or

f) was frivolous or vexatious.

Mr Trollip had briefed the Committee on 2 November; the minutes of that meeting had been circulated to assist Members, especially as there were four new Members that were not present at that time.

Discussion
Mr A van der Westhuizen (DA) thanked the Chairperson for having circulated the minutes of 2 November, which allowed the new Members to prepare for the meeting.

South Africa had already developed quite a good track record in that existing legislation favoured transparency and was in line with legislation in many other countries. The proposal sought further transparency and was therefore in line with what the country had achieved in the last few years.
Government was very serious about job creation and economic growth and such legislation instilled confidence in the economy. The country wanted to be seen as serious about anti corruption measures and as a safe haven for investment and business growth.

His impression was that the proposal tried to protect the office of the Presidency. He recalled that when George Bush was president of America it was rumoured that his family had enormous interests in the oil business and oil fields of America and some of the decisions taken by the American government at the time were not environmentally friendly and were aimed at protecting the family interests. If people were aware of how far the interests of the family and his close relatives went, at least people would know whether or not that were true. Disclosure systems for senior officials were already established in many of our legislations and it was fit that also office bearers, and especially the bearer of the highest office, be seen to also abide by the very same regulations as were expected of senior public servants. All avenues to combat corruption were needed; even rumours of corruption were bad for economy. They were bad for economic growth, bad for job corruption, and the proposal should be considered very seriously and favourably.

Ms P Kopane (DA) was not present at the meeting of 2 November but had noted from the minutes that Members were not against the principle of the proposal; the issue was that people felt the President was the target. She stressed that the Committee should focus on the principle and not to individualise the person. There was a need to ensure that state resources were allocated on the basis of a fair tender process and not on the basis of political connections. It was not a case of targeting the present president, but was about future presidents. Based on that the DA supported the proposal.

Ms J Kilian (COPE) recalled that in many respects the President and the Premiers were responsible to adjudicate the ethics and the interests of members of the executive. The Office of the President was under discussion and it must be differentiated between the current incumbent and the office of the president; it should not be personalised, it was about how to protect that office from any rumours and media speculation. Measures needed to be put in place to protect the integrity of the office of the Head of State and to bring into discussion other instruments that could be used under the Constitution, such as the role of the Public Protector as well as that of the Auditor General. It was to scrutinise, to ensure transparency and openness. The Constitution provided for free economic participation but free economic participation by all could only take place where everybody had equal opportunity, therefore it was so important to ensure that access to tenders and the awarding of tenders were seen to be fair, open and transparent and that access to business with the state was not for a select few but for the broad public.

The principle of the introduction was a very important additional measure to support our constitutional dispensation. Politicians came and went but must leave behind institutions that would be able to serve the nation fairly going forward. She recommended that the legislative proposal be processed through the channels; the details could be further deliberated. The Committee only had to determine on the basis of the criteria set, and there was nothing against those criteria.

Ms Kubayi explained why the minutes reflected on the current incumbent. The proposal specifically spoke about President Zuma and highlighted the Presidency. As a matter of principal, when speaking of Presidency it referred to President and Deputy President. The proposal did not speak of presidency; it spoke of President.

Ms Kubayi’s main concern was that the proposal was a response to media reports of rumours that were not proven through court and that had not been tested. By mentioning the family of President Zuma, as per the presentation, and as motivation to the discussion, was to look at President Zuma’s family and the 134 companies they had benefited from, that created the impression that the entire family was corrupt. The Committee could not work on the basis of rumours.

Ms Kubayi was also concerned that the impression was that South Africa did not create genuine entrepreneurs, especially from black communities. There was a notion that if a member of the ruling party had a business it was because they were politically connected. She recalled an interview with President Zuma’s daughter where she was asked how she felt being the child of the President, and the response was that at times she wished she could leave the country because she was usually treated unfairly as the child of the President. The impression was created that as a family member could never do anything because of political connections. The Constitution provided ample opportunity and grounds for the development of entrepreneurs without the assumption of being corrupt.

The proposal spoke about the President, if it was about the principle why did it not include the entire executive? Why should the interests of the entire family of the Minister of Finance not be disclosed?

The proposal sought to address a government procurement system. If weaknesses in the government procurement system were identified that should be sorted out in the portfolio committee that dealt with procurement, to ensure that people who were not supposed to benefit benefited. If the issue of disclosure was not enough, why isolate the President? The procurement system was not only about tenders; it was quite broad.

Ms Kubayi stressed looking at the intention of the legislative proposal. She felt it was to address the procurement system that was deemed to be insufficient, which was not the way to deal with that. The proposal deemed to isolate the President from the entire executive and therefore creating the impression that the President and his entire family were corrupt and must be managed through legislation.

Mr van der Westhuizen answered Ms Kubayi’s questions. The proposal dealt with the fact that there was a problem with the highest public office in government, in the sense that there were currently no actions to protect that office. If it were suspected that the Minister of Finance was involved that could be brought to the attention of the President of the country, who would make sure of the facts and, if he felt it were necessary, could replace the Minister of Finance. The President himself/herself could not be protected in the same way. The same route was not available for the highest office in the country.

Ms Kubayi had asked why the Zuma family had been quoted and then had herself quoted a family member.

The proposal did not only deal with procurement or with government business, but also to protect the President’s office from other influences that particularly also the private sector might exert on such an office. That office must be protected, if people suspected any wrongdoing there was an avenue to deal with that and if not proven to be true that could be stopped.

The Chairperson cautioned that discussions should not move away from the Constitution. Section 83(b) stipulated that the President must uphold, defend, and respect the Constitution as the supreme law of the country. It went further to say in (c) – promote the unity of the nation and that which will advance the Republic. Section 85(i) said the executive authority of the Republic was vested in the President. Sub section 85(ii) said the President whom himself as the Head of State implementing legislation, except where the Constitution or an Act of Parliament provided otherwise. He wanted Members to look at the Executive Members Ethics Act No. 82 of 1998, which spelt out what ought not to be done. The President was obliged by the Constitution to work in line with those pieces of legislation. If Members of Parliament or Parliament arrived at a determination that the President was not doing in terms of the Constitution or any other pieces of legislation, he was sure the Constitution provided for that also.

Mr Trollip complimented the Committee for the comprehensive minutes and that even that his comments had been accurately recorded.

He remembered that there was some objection to his using names and even named the President in his presentation. He said at the time that it was used as an example to illustrate.

The Chairperson said, as a point of order, that Mr Trollip was participating as a Member of Parliament and not as the sponsor.

Mr Trollip continued that in his presentation he did he make any allegations of corruption or fraud. He did not purvey the notion or the perception that any of the people involved in those companies committed fraud or corruption. The names were used for purposes of illustration because they were already widely in the media. Nor did he imply that we were not producing entrepreneurs in this country. If we did not build entrepreneurship in this country across the board this country would fail.

The issue was about proposed amendments to the Executive Members Ethics Act and he was pleased that the Chairperson had referred to the Constitution and the President having Supreme authority in the country. The Constitution did not speak about the Presidency; it spoke about the President. Even although there may be some very influential departments, the President appointed the ministers of those departments at his or her pleasure, so he was the supreme authority in the country.

The proposed legislation was about dealing with issues about self-adjudication. The President had to comply, but the President did oversight and evaluated and adjudicated the declaration of the Deputy President and the whole Cabinet. The issue was that the President had to be the referee, the player, and the TV referee, which was wrong; not because of President Zuma but because one could not be the referee, the player and the TV referee.

The State doing business with the State was a different issue. That was about changing the supply chain management and the whole tender process, which was a different issue. The proposed legislation said that if members of the President’s family did business with the State, to protect the office of the President and to protect the integrity of those emerging or existing entrepreneurs, the Auditor General should scrutinise those deals to ensure that they were acceptable and everybody’s integrity was protected.

The President himself had said on numerous occasions that he wanted to lead the war on corruption. What better way than to say he was opening up his office to public scrutiny. Mr Trollip did not have a problem speaking about the Presidency, but Ms Kubayi’s example of President Zuma’s daughter was unfortunately something that went with the territory of being a family member of a president. It was not unique to South Africa; it applied to families of presidents across the world.

The proposal was to put the President beyond reproach and guard the President’s integrity.

Ms A van Wyk (ANC) said a perception of corruption had been created. The proposal spoke about developing legislation aimed at individuals. Legislation was never developed aimed at individuals.

Mr Trollip argued that the legislation was not aimed at one individual. The President was used as an example.

Ms Kubayi said on a point of order the Member must be given a chance to speak.

The Chairperson said she acknowledged that Ms van Wyk did not use the words but that there was the perception.

Ms van Wyk continued that legislation could not be created to satisfy media coverage. There were things in place; if there were loopholes, they needed to be strengthened. Parliament must not legislate around individuals or around offices. The day of the presentation the media was present in hordes, and that was what was covered. The impression must be stopped that politicians were corrupt; they were undermining their own positions.

The Chairperson again read from the Executive Members’ Ethics Act 2(b) (ii) and (iii).

(ii) - that as a Cabinet Member Deputy Ministers and MECs acted in a way that was inconsistent with their offices, we should provide them to act in that way.

(iii) – exposing themselves to any situation involving the risk of conflict between their official responsibility and their private interests.

It was not as if there were a vacuum in terms of areas covered by law.

Ms Kilian had the impression that there was difference in the view of the type of state envisaged in the Constitution. There were elements of procurement but that was dealt with elsewhere. The legislative proposal dealt with ethics and public life. Argument was for greater transparency in order to stop media speculation, and to protect the office of the President and the ministers. That was the problem and what compelled members of the opposition to say that information had been received and had to be tabled to the Public Protector because the Members’ Ethics Code was adjudicated essentially by the Head of State, and if nobody adjudicated the office of the Head of State and he or she was the referee, the player and the TV referee, nobody was seeing that and that was where the rumours began. In order to combat negative media there was a need to say there was nothing untoward in the process and the public had access to the facts. The state that Parliament was supposed to create – basic principles regarding administration, Section 195. The Constitution should be read in its entirety and not only quote from sections that suited one. Section 195: ‘Public administration must be governed by the democratic values and principles enshrined in the Constitution. Essentially the executive and the President as the Executive Authority were supposed to oversee those democratic principles.

One of the principles was transparency. Transparency 1(g). Transparency must be fostered by providing the public with sound and accessible information. That could be read in conjunction with sections referring to procurement. It ultimately meant that there must be no perception that people in high office, irrespective of the individuals that occupied those positions. The Committee must remember, whatever the thoughts in the minds of the current governing body, governing parties came and went and other parties took over and there was a new government in office. Whatever was created today must stand the test of scrutiny of the future parties that would take over governing seats of Parliament. Would the ANC be comfortable going forward where there was a clear separation of adjudication of the office of the President? Rumours and perceptions were always negative and that could only be countered with factual information. She could not see that that was in conflict with Section 85 of the Executive Authorities Act, which said ‘implementing legislation except where Acts of Parliament dictated otherwise’.

Nothing that was proposed was in conflict with constitutional principles or in conflict with what the Constitution said. If the Committee did not agree with building in additional measures to protect the office of the President then it had to agree to disagree.

 

Ms M Mdaka (ANC) stated that Ms Kilian had made the job easier for those present by saying that they either convinced each other or not. Another member had made mention of job creation which had been correct. She was not sure if those present would agree even if Ms Kilian was talking about the President as even people in the highest office were human and this matter was not related. She argued that she would not allow Ms Kilian in her role as part of the opposition party to drag the President’s name into the issue. The case was closed and this was final.

 

Ms P Kopane (DA) referred to the PMG minutes of the previous week’s meeting. She did not agree that it was a heated debate; it was more of a hostile meeting. She referred to remarks made by some of the Members, for example where the report claimed that Ms Mdaka had ignored reference to Ms Kilian’s remarks that the Constitution was the supreme law of our country. The remarks claimed made by Ms Mdaka were really not acceptable, particularly when a Member of Parliament did not wish to align herself to the Constitution, which was serious.

Mr F Bhengu (ANC) was uncomfortable with the Member making reference to PMG and not the minutes of the Committee. One may as well call anyone to write them and refer to those minutes as if they were authentic. Anyone under those circumstances may express how one felt as to how the meeting was conducted. If one were driven by emotions and not by fact, it would be interpreted as such. He suggested refraining from making references to outside and look at what the Committee did and refer to the official minutes of that meeting.

The Chairperson agreed. The Committee could not take the PMG minutes as a record of Committee proceedings, however, the sentiments were heard and clear to everybody, which he had remarked on.


Ms Kubayi referred Mr Trollip’s saying that in his proposal he did not refer to President Zuma only. The articles quoted as part of the presentation in the Mail and Guardian, and the City Press and the Sunday Times, immediately after the meeting those articles gave that impression.  She had a problem with creating legislation to address rumours and stop media speculation.

Chapter 9(a) spoke about the Public Protector. The Public Protector could investigate anyone, so it was not correct to say there were no other measures in place.

Ms Kubayi proposed rejecting the proposal as being frivolous and vexatious.

The Chairperson was concerned that there was division amongst Members. He proposed that in the next meeting all parties would be given a final opportunity to determine whether to take a decision on a vote or consensus.

Mr Trollip wished to comment but was not allowed as the meeting had already overrun its time.

Mr F Bhengu (ANC) supported the Chair’s proposal, but that the sponsor should also be given an opportunity.

Ms Kilian seconded the proposal.

Ms Kopane said in view of the environment the Democratic Alliance was of the opinion that the matter should be closed.

Ms van der Walt seconded that.

The Chairperson felt it would be unfair to deprive Members of consolidating their debate and an opportunity to seek a fair balance and opportunity for all.  The next meeting would start with finalising the matter, allowing leaders of parties to make final remarks; the sponsor would also be allowed to comment.

The meeting was adjourned.

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