Legal Opinions on SABC internal enquiry process & the misleading of Parliament by the Director-General in the Department of Communications

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Communications

30 October 2012
Chairperson: Mr E Kholwane (ANC)
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Meeting Summary

The Committee had requested advice from the Constitutional and Legal Services Office of Parliament on how to proceed with two matters.  The first matter concerned the internal enquiry undertaken by the Board of the South African Broadcasting Corporation into the alleged misconduct of Board member Advocate Cawekazi Mahlati.  The second matter concerned the misleading evidence presented to the Committee on the signing of the performance agreement of the Director-General of the Department of Communications.

The Parliamentary Legal Adviser briefed the Committee on the legal advice pertaining to the SABC matter included in the memoranda to the Committee dated 7 March 2012, 30 April 2012, 28 August 2012 and 17 September 2012.

The SABC Board had appointed a firm of attorneys to conduct an internal enquiry into allegations of misconduct against Ms Mahlati.  The Board had recommended the dismissal from office of Ms Mahlati to the Minister of Communications, in accordance with section 15 of the Broadcasting Act.  The Minister had referred the matter to the Office of the President.  In terms of the Act, the President was the appointing body and had the authority to dismiss a member of the SABC Board.  The Act required a “due enquiry” to be undertaken.  However, the Presidency regarded the communication from the Minister as “for information purposes only” and did not proceed with the matter.  The Minister had also expressed concern over the fairness of the process followed by the Board.  The report on the internal enquiry classified it as an “informal enquiry” and documented evidence had not been attached.

The SABC Board and Ms Mahlati appeared before the Committee on 18 September 2012.  The Board claimed that Ms Mahlati was disruptive and cited examples of her behaviour towards members of the Board and the Secretary.  She was alleged to have incurred unauthorised expenditure by renting a second hotel room.  The Board had subsequently passed a motion of no confidence in Ms Mahlati but the validity of the motion was questionable as her request for a vote on the matter was summarily dismissed.  In addition, Ms Mahlati was accused of failing to disclose her interests.  In her defense, Ms Mahlati claimed that she was being victimised for confronting the Board with evidence of wrongdoing.

The legal opinion provided to the Committee clarified the relevant provisions in the Broadcasting Act that dealt with the process that needed to be followed to dismiss a member of the SABC Board.  The authority of the Committee was limited to its oversight mandate.  The Committee could choose to exercise its authority by either conducting its own enquiry or call on the Auditor-General to assist with the required “due enquiry”.  The Committee had to report on the matter to the National Assembly and obtain approval for the expenditure incurred in conducting the enquiry.  Once the enquiry was completed, the Committee would report to the National Assembly and make a recommendation on the action to be taken.  If the Committee recommended dismissal of the Board member, the National Assembly would adopt a resolution and refer the matter to the President as the appointing body.

After extensive debate, the Committee decided to request the assistance of the Auditor-General in conducting the enquiry.  The reports of the Auditor-General on the enquiry would be submitted to the Committee.  The Committee adopted a report to the National Assembly on the matter but refrained from recommending the suspension of the Board member at the present time.  Members requested that the matter was finalised as soon as possible.

[Note: PMG had been informed by Adv Cawe Mahlati that this investigation was later aborted.]

The Parliamentary Legal Adviser briefed the Committee on the legal advice pertaining to the matter concerning the Director-General of the Department of Communications included in the memorandum dated 23 October 2012.

The matter arose out of the finding by the Auditor-General in the 2011/12 annual report of the Department of Communications that the Director-General had not signed a performance agreement with the Minister of Communications.  Members questioned the Director-General on the matter during meetings with the Committee on 10 October 2012 and 16 October 2012.  The Director-General had stated during the meeting that she had a signed performance agreement but this was disputed by the Deputy Minister of Communications.  The Committee concluded that the statement made by the Director-General was false and intended to mislead Parliament.

The legal advice provided by the Parliamentary Legal Adviser included an analysis of the relevant provisions in the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act.  The offence of providing false and misleading information to Parliament was a criminal offence in terms of the Act.  The advice to the Committee was that the Director-General was called before the Committee to give an account of the matter.  The Director-General could be requested to provide documentary evidence that she had a signed performance agreement.  The proceedings should be attended by the Minister of Communications.  The Minister could be requested by the Committee to advise what action she intended to take.

The Deputy Minister of Communications attended the meeting.  Members took the issue of misleading Parliament and providing false information extremely seriously.  The matter was extensively debated before the Committee decided to call the Director-General and the Minister to appear before the Committee.  Members requested that transcripts of the recordings of the relevant meetings were made available.  The date and time of the meeting would be confirmed.

Meeting report

The Committee had requested advice from the Constitutional and Legal Services Office of Parliament on how to proceed with two matters.  The first matter concerned the internal enquiry undertaken by the Board of the South African Broadcasting Corporation (SABC) into the alleged misconduct of one of the Board members.  The second matter concerned the misleading evidence presented to the Committee on the signing of the performance agreement of the Director-General of the Department of Communications (DOC).

The Chairperson noted that Ms Stella Ndabeni, Deputy Minister of Communications was unable to attend the entire meeting but would be present when the matter concerning the Director-General was dealt with.

Enquiry by the Board of the South African Broadcasting Corporation (SABC)
Adv Charmaine Van der Merwe, Parliamentary Legal Adviser advised that the Committee had requested the advice of the Parliamentary Legal Services on the internal enquiry conducted by the SABC Board into the conduct of one of its Board members, Adv Cawekazi Mahlati. Copies of the Memoranda from the Parliamentary Legal Advisers to the Chairperson of the Committee dated 17 September 2012, 7 March 2012, 30 April 2012 and 28 August 2012 were circulated to Members.

The Chairperson of the SABC Board and Ms Mahlati had addressed the Committee on 18 September 2012.  The Board complained that the behaviour of Ms Mahlati was disruptive and that she had incurred unauthorised expenditure related to the booking of an additional hotel room.  Ms Mahlati disputed the allegation that she was disruptive and claimed that the action taken by the Board was an attempt to silence her when she confronted the Board about certain irregularities by members of the Board.

The Board had appointed a firm of attorneys to conduct the internal enquiry and subsequently recommended to the Minister of Communications that Ms Mahlati be removed from office on the grounds of misconduct in terms of the Broadcasting Act.  Section 15 of the Act specified that a member of the Board might be removed from office by the appointing body (i.e. the President).  The Committee had no legislative role to play in the process of the removal of a member of the Board and was limited to its oversight mandate (see Memorandum dated 7 March 2012).

The Minister had expressed concern over the fairness of the process followed by the SABC Board and the Parliamentary Legal Services Office was requested to expand its comments (see Memorandum dated 30 April 2012).  The opinion of the Parliamentary Legal Advisers confirmed the President as the appointing authority and acknowledged that it was logical for the SABC Board to communicate the recommendation that a member of the Board was removed from office to the Minister.  Section 15 (1) of the Broadcasting Act allowed for a Board member to be removed by the appointing body “after due inquiry and upon recommendation by the Board” (section 15 (1) (a) or “after a finding to that effect by a committee of the National Assembly and the adoption by the National Assembly of a resolution calling for that member’s removal from office” (section 15 (1) (b)).  The Committee could not interfere while the inquiry was in progress.  The Minister (as a member of the executive) did not have the authority to instruct the Committee (as a component of the legislature) to exercise its oversight powers.  The matter had also not been referred to the Committee for consideration and report by the National Assembly.

The Committee remained concerned about the ability of the SABC Board to continue the investigation process and requested further advice on the scope of its mandate in respect of the Board (see Memorandum dated 28 August 2012).  National Assembly Rule 201 (b) required committees to maintain oversight of the exercise of national executive authority and authorised committees to monitor, investigate, enquire into and make recommendations regarding the entities in the committee’s portfolio.  The Parliamentary Law Advisers suggested that the Committee obtain confirmation from the Office of the President that the process to remove the member of the Board from office was concluded before the Committee addressed the SABC Board on its actions.  The Committee could request the SABC Board (via the Minister as the responsible authority) to report on its actions in order to satisfy the concerns relating to the abilities of the Board to conduct a “due inquiry” in accordance with the Broadcasting Act.  The Committee might then consider whether a recommendation in terms of section 15A of the Broadcasting Act should be made to the National Assembly.

The Office of the Leader of Government Business had telephonically indicated to the Chairperson of the Committee that the Presidency regarded the communication from the Minister on the enquiry and recommendations as “for information purposes only” because of the apparent informal nature of the enquiry.  The firm of attorneys who had conducted the enquiry had classified it as an “informal enquiry” and the report did not contain documentary evidence.  The Parliamentary Law Adviser suggested that the Committee obtained written confirmation from the Presidency that the matter would not be proceeded with by the appointing body (see Memorandum dated 17 September 2012).  The Committee was informed during an unrelated presentation by the SABC Board that a motion of no confidence against Ms Mahlati would be taken by the Board.  However, the vote of no confidence was challengeable as the request of Ms Mahlati for the matter to be voted on was summarily refused.

The Committee had requested advice on what steps could be taken in order to exercise its legislative and/or oversight mandate.  The Broadcasting Act was not prescriptive on what constituted “due enquiry”.  The available options were (a) for the Committee to conduct the enquiry or (b) for the Committee to call on the Auditor-General of South Africa (AGSA) to assist with the enquiry.  Discussions with AGSA revealed a third option whereby the National Assembly could appoint an ad-hoc committee to consider the matter.

The Committee should consider the amount of time required for an enquiry (estimated to be at least five days) against the time available, the fee charged by AGSA for undertaking a special integrated audit and the cost of obtaining advice from Senior Counsel.  The testimony of other Board members needed to be heard.  Documentary evidence (such as hotel booking records and receipts) had to be provided as supporting evidence.  Senior Counsel would advise on the veracity of the evidence and the credibility of witnesses.  Any documentation and transcripts of proceedings in possession of the Committee had to be made available to AGSA.  The parties concerned had to be advised of the action taken by the Committee.  Ms Mahlati had the right to attend the proceedings and to call her own witnesses.  The Parliamentary Legal Adviser suggested that the Committee obtained the approval of the National Assembly for the action decided and obtained authorisation for the expenditure relating to the AGSA and Senior Council fees.

The Committee would include its recommendation in the report submitted to the National Assembly.  The National Assembly would then pass a resolution in terms of section 15 (1) (a) of the Broadcasting Act.  If the resolution was that the member be dismissed from the SABC Board, the President had to act accordingly.

[Note: PMG had been informed by Adv Cawe Mahlati that this investigation was later aborted.]

Discussion
Mr C Kekana (ANC) suggested that the Parliamentary Legal Adviser deal with the second matter before the Committee entered into discussion.

Ms J Killian (COPE) asked for more clarity on the role of the AGSA.

Ms M Shinn (DA) asked if the matter would be referred back to the Committee once the AGSA enquiry was finalised.

Ms R Morutoa (ANC) remarked that the Committee had found that the situation was more serious than was indicated by the findings of the Auditor-General.

Mr B Steyn (DA) asked if the recommendations arising out of the AGSA investigation would be sent to the Committee or to the National Assembly.

Advocate Van der Merwe advised that if AGSA was requested to undertake the enquiry, the Auditor-General would verify any supporting documentation provided by the Committee.  The Committee would have no further involvement in the investigation process.  The request from the Committee to the National Assembly could be phrased in such a manner that the report from AGSA was submitted to the Committee in the first instance.  The Committee would manage the process and consider the report from AGSA and the supporting evidence before making its recommendation.

Ms Morutoa asked which option would be most suitable for the Committee.

The Chairperson replied that the Committee would decide after it had received clarity on the three alternatives.  He asked for more information on the provisions in the Broadcasting Act that dealt with suspensions and dismissals.  The SABC Board had also claimed that Ms Mahlati had not disclosed her interests as required by the Act.  He asked what the opinion of the Parliamentary Legal Adviser was on the matter of disclosure.

Adv Van der Merwe suggested that the Committee submit a report to the National Assembly once the decision was taken on how the enquiry would be conducted.  The report could include the recommendation that the National Assembly proceeded with the suspension of the Board member in terms of section 15 of the Broadcasting Act.  Once the enquiry was concluded, the Committee could recommend the dismissal of the Board member.  The issue of non-disclosure of interests could be dealt with separately or included in the enquiry.  Ms Mahlati would have the opportunity to defend the allegations and to offer evidence that she had disclosed her interests.

Ms Killian suggested that Members be allowed time to discuss the matter in caucus.  The matter was extremely sensitive and affected the SABC Board and other Board members.  The Committee had to proceed with the utmost caution and make absolutely sure that the evidence provided was verified and that the process followed was credible.

Ms Morutoa agreed with Ms Killian’s suggestion.

Ms Shinn said that it was not necessary for the Committee to go into the detail of the allegations at this stage.  The Committee only needed to decide on how to proceed and a caucus discussion was not necessary.

Mr Kekana reiterated his earlier suggestion that the second matter be dealt with before the Committee reached a decision.

The Chairperson agreed to proceed with the second matter.  Members of the Committee could caucus during a break in the proceedings.

Ms F Muthambi (ANC) asked if AGSA had the necessary capacity to conduct the enquiry in-house.  She asked if a cost-benefit analysis had been done as AGSA would charge a fee for the service rendered to the Committee.  She asked for clarity on the advice from the Office of the President that the matter was not being proceeded with.

Adv Van der Merwe explained that the communication received from the Minister on the enquiry conducted by the SABC Board was considered to be “for information purposes only” by the Office of the President.  The Committee needed to obtain written confirmation from the President as the appointing body that the matter would not be acted on.  Mr Lourens van Vuuren, Business Executive: AGSA had advised that AGSA had a special integrated audit unit, which presumably had the necessary capacity to undertake enquiries of this nature.  The amount of the fee charged by AGSA would depend on the duration of the enquiry.  The fee for Senior Counsel advice varied from R10,000 to R20,000.  Additional expenses would be incurred for travel and accommodation.  She was not able to estimate the cost of the various options without further investigation.  The Broadcasting Act did not specify how the “due enquiry” should be conducted.  AGSA would provide the Committee with expert advice.  The Auditor-General would undertake the investigation, obtain evidence and assess the veracity of the evidence and the credibility of witnesses.

Mr Steyn asked if there was another option available, for example that the Presidency took the matter further.

Ms Killian asked what the difference was between the processes in section 15 and section 15A of the Broadcasting Act.  She asked if the section 15 process had to be completed before the section 15A process was proceeded with.  The Committee did not have any evidence that the SABC Board had followed due process and the Minister had also queried the process followed.  She asked if it would be necessary to amend the Broadcasting Act so that only one process needed to be followed.  She pointed out that the Committee had recommended candidates for appointment to the SABC Board.  It might be necessary for Senior Counsel to attend the enquiry in addition to verifying evidence, which would increase the cost.

The Chairperson said that it was necessary to obtain clarity on exactly what the Committee had to deal with.  Legislation required that members of the Board must disclose their interests.  Certain members had not done so and had violated the law.

Adv Van der Merwe explained that section 15 (1) (a) of the Broadcasting Act required an enquiry to be undertaken by the SABC Board.  Section 15A required a “due enquiry” to be conducted and the adoption of a resolution by the National Assembly to give effect to the recommendation arising out of the enquiry.  Misconduct could be a minor matter, for example the failure to attend every Board meeting or not speaking through the chairperson at a meeting.  Care had to be taken in describing the nature of the misconduct.  She understood that the internal enquiry initiated by the SABC Board had a number of flaws, for example that there had been insufficient consultation with Ms Mahlati.  The Board had stated that there had been written communication with Ms Mahlati but documentary evidence was not provided.  Reliance on the report had to be carefully considered.  Supporting evidence might exist but this was not made clear.  The Presidency might have decided not to act on the matter because documentary evidence was not attached to the report.  Section 17 of the Broadcasting Act specified that the non-disclosure of interests was not sufficient to make a person ineligible to serve as a Board member but such non-disclosure was regarded as misconduct.

Performance Agreement of the Director-General of the Department of Communications (DOC)
Adv Van der Merwe advised that the Committee had requested advice on the steps available where it was found that a witness had presented false evidence to the Committee (see Memorandum dated 23 October 2012).

Providing the House or a committee of the House with false or misleading information or making a statement that was false or misleading was an offence in terms of section 17 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (the “Powers and Privileges Act”).  If prima facie evidence existed, a criminal charge could be laid at the SAPS.  The Act made provision for the imposition of a fine or for a period of imprisonment.

The Director-General of the Department of Communications had indicated to the Committee that she had signed a performance agreement for the 2012/13 year during meetings with the Committee on 10 and 16 October 2012.  However, the Deputy Minister of Communications had disputed this.  As a result, the Committee was of the opinion that the Director-General might have presented false evidence to the Committee.

The Parliamentary Law Adviser suggested that the Committee provide the Director-General with an opportunity to provide an explanation and to obtain evidence of wrongdoing before proceeding with the matter.  It was necessary for the Committee to hear both sides and for the Director-General to understand that providing false evidence or making a misleading statement was an offence.  The Committee could request the Director-General to provide a copy of the performance agreement in question.  The Committee had to establish if there was a willful intent to mislead Parliament or not, for example if the Director-General was under the impression that she had signed the performance agreement but the agreement had not reached the office of the Minister for some reason.  However, if the Director-General had deliberately lied to avoid questions from the Committee then she needed to understand that she had committed a serious offence and that a criminal charge could be laid against her.  If the Director-General was unable to explain the discrepancy, the Committee could refer the matter to the Minister and ask what the Minister intended to do about the matter.  The Committee could submit a report to the National Assembly on the matter and the subsequent responses of the Director-General and the Minister.

Discussion
The Chairperson asked what the responsibility of the Minister was.

Adv Van der Merwe responded that the Director-General reported to the Minister.

Ms Killian asked if the Committee had to establish what the implications were of the failure to sign a performance agreement in accordance with the applicable regulations or legislation.  The performance agreement set out what was required of an official.  If there was no performance agreement with the Director-General of a Department, the entire Department could get away with failing to perform.  There would be no consequences for officials who had failed to carry out their duties and responsibilities.  Fruitless and wasteful expenditure would be incurred if non-performing officials were paid settlement agreements to leave the Department.

Mr Kekana recalled that the Director-General had attended the meetings with the Committee and was present when her statement that she had submitted the performance agreement was disputed by the Deputy Minister.  It was possible that the Director-General was not aware of the consequences.  In his opinion the matter could not be regarded as a minor offence and the Director-General needed to provide good reason for her action.

Ms Muthambi pointed out that the Auditor-General had also issued a finding that a performance agreement with the Director-General had not been signed.

Ms Morutoa said that it was necessary to listen to the recordings of the two meetings of the Committee.  She recalled that Members had asked the Director-General if she was aware that she had made contradictory statements.  She suggested that the Committee started the process of dealing with the matter and called the Minister and the Director-General to attend a briefing.

Adv Van der Merwe thought that it was a good idea for the Committee to ask what the impact of the failure to sign a performance agreement was.  The Director-General might have had good reason for making the statement to the Committee, regardless of her presence at the meeting when the Deputy Minister had disputed that a performance agreement had been signed.  It was suggested that the Minister was present when the Director-General provided an explanation to the Committee.  The Minister could be requested to explain what action she would take.  The Committee would submit a report on the matter to the National Assembly.  It was necessary to consider the political implications of a report to Parliament that the Department of Communications had not complied with legislation.

The Chairperson observed that if the Director-General had lied to the Committee, her credibility had suffered even if the offence was legally considered to have been minor.  As a result, the Committee would question the veracity of the entire annual report of the Department.  As the head of the Department, the Committee expected the Director-General to lead by example and it was a serious matter if she had misled Parliament or made a false statement.

Ms Muthambi asked for further clarity on the process that had to be followed by the Committee.  The Chairperson explained that the Parliamentary Legal Adviser had suggested that the Committee called the Director-General to provide an explanation and that the Minister was requested to advise what action would be taken.

Adv Van der Merwe agreed that misleading Parliament was a serious matter.  Laying a criminal charge was also a serious matter and should not be done lightly.  The Committee could inform the Minister that the matter was considered to be a serious matter and that the credibility of the most senior official in the Department was compromised as a result.  The only option available to the Minister was to take disciplinary action, coupled with the laying of a criminal charge and dismissal.  If the Committee was not satisfied with the action taken by the Minister, then the Committee could escalate the matter to the Speaker.  Once the matter was in the House, it was a political rather than a legislative process.

The Chairperson announced a break in the proceedings to allow Members to hold discussions in caucus.

When the meeting was resumed, the Chairperson summarised the advice of the Parliamentary Legal Advisers on the matters concerning the SABC Board and the Director-General of the DOC.

Matter concerning the SABC Board and Advocate Mahlati
Ms L Van der Merwe (IFP) proposed that the Committee request AGSA to conduct an enquiry into the matter concerning Advocate Mahlati and the SABC Board.  The Committee needed to indicate to AGSA that the matter was urgent.  The Committee did not have the necessary expertise to conduct the enquiry and was pressed for time.

Ms Killian supported the proposal.  The enquiry required technical expertise in matters of compliance and financial management.  The Committee would continue to interact with AGSA and should request that the findings were submitted to the Committee.  The Committee would submit the report and its recommendations to the National Assembly.  It was important that the process followed was credible, seen to be fair and complied with natural justice.

Ms Shinn agreed with the proposal.  AGSA had the necessary knowledge and experience to conduct the enquiry.  The Committee should make all relevant documents, recordings and transcripts available to AGSA.  She said that both parties had the capacity to meddle with the evidence.  She suggested that the Committee refrained from recommending that Ms Mahlati was suspended before the process was completed.  She suggested that AGSA was requested to provide an indication of the duration of the process and was urged to proceed with the utmost haste.

The Chairperson emphasised strongly that the issue was about the alleged misconduct of a single member of the SABC Board and NOT about an investigation of the Board.

Adv Van der Merwe pointed out that section 15A dealt with a member of the Board and not with the entire Board.  The enquiry was about the conduct of the member of the Board.  The member’s defence was that she was being harassed by the Board because she was a whistleblower and her claims might be considered during the investigation.  The enquiry was not about the SABC Board.

Ms Killian understood that all matters that were raised in the defense of the member and all evidence provided would be considered.

The Chairperson said that the matter was the alleged misconduct of the member of the Board.  In her defense, she had implicated the Board.  Whether or not a member of the Board was dismissed was at the discretion of the appointing body.

Adv Van der Merwe confirmed that the appointing body was the President.  The Committee would submit a report and a recommendation to the National Assembly.  If the recommendation was that that the member was dismissed from office, the National Assembly would pass a resolution to that effect and refer the matter to the President.

Ms Morutoa would have liked to hear the opinion of the Auditor-General as well.  She asked who was liable for the cost of the enquiry.  The accusation against Ms Mahlati was her alleged misconduct but there could be a broader issue.  It was essential that the facts of the matter were established.

Ms Shinn said that there were two parties involved and it was unfair to suspend only one of the parties.  She suggested that the Committee requested AGSA to provide a preliminary report and that the matter was finalised before the end of the year.

Ms Muthambi agreed that the appointing body had to deal with the suspension or dismissal of a member of the Board.  The integrity of AGSA was acknowledged and the Committee would abide by the recommendation of the Auditor-General.  It would appear that there was agreement amongst the Members of the Committee that the enquiry was undertaken by AGSA.

The Chairperson observed that a grievance procedure could not be started once a case of misconduct had commenced.

Mr Steyn agreed that the enquiry should be conducted by AGSA.  He was wary that an enquiry undertaken by the Committee could be declared invalid as the result of a procedural mistake.  He supported the suggestion that AGSA was asked for a preliminary recommendation once the weight of the evidence had been considered.

The Chairperson again stressed that the enquiry was not about the Board.  If AGSA found that certain allegations against the Board required further investigation, the Committee would have to authorise it.

Ms Shinn understood that the reason for the action taken against Ms Mahlati was that she had made serious allegations against other members of the Board.  Ms Mahlati was accused of disruption because she had challenged the manner in which the Board operated.  She had claimed that she was being unfairly victimised because she was a whistleblower.  She suggested that AGSA was asked to investigate her claim.

The Chairperson said that the matter concerned the action taken against a member of the Board in accordance with the Broadcasting Act.  The report of the informal enquiry listed three incidents of alleged misconduct.  Subsequently the Board had advised that a vote of no confidence would be taken, although the validity of the vote was questionable.  The issues raised by Ms Mahlati in her defense were another matter and would not be ignored.  The Committee was responsible for oversight over the SABC and would need to deal with any issues arising from the enquiry.

Advocate Van der Merwe advised that the instruction from the Committee to AGSA needed to be clear on what issues had to be investigated.  The Committee had heard allegations from both parties but AGSA would ask for proof and would base its recommendation on the evidence provided.

The Chairperson confirmed that the Committee would request AGSA to conduct the enquiry.  He asked Advocate Van der Merwe to assist the Committee Secretary with the drafting of the request and the report of the Committee to the National Assembly.

[Note: PMG had been informed by Adv Cawe Mahlati that this investigation was later aborted.]

Matter concerning the Director-General of the Department of Communications
Ms L Van der Merwe (IFP) proposed that the Committee request the Director-General to appear before it to give an account of her actions.  The Minister of Communications would be requested to attend the meeting.  Both parties would be given the opportunity to explain their side of the matter.

Ms Muthambi (ANC) supported the proposal.  The Committee considered the matter to be serious and would call the Director-General to account.  The input of the Minister would be heard.  The Committee would be setting a precedent that Parliament had to be taken seriously and would not be misled.

Ms Shinn (DA) supported the proposal.  The Director-General and the Minister would both have the opportunity to provide their versions of the events.  She assumed that some action would already have been taken.  She suggested that transcripts of the recordings of the two meetings be made available to Members.  She understood that the Director-General had attended both meetings although she had not signed the attendance register for one of the meetings.  She suggested that the Committee finalise the matter before the end of the term.  The public service should not be allowed to mislead Parliament.

Ms Killian (COPE) supported the proposal.  She agreed that the matter needed to be finalised before the end of the year.  The Committee Schedule indicated that time was available during the last week of November.  She understood that another Parliamentary Committee was dealing with a similar matter.  The electorate held politicians to account and Parliament had to take decisive action if it was found that the public service had presented ‘doctored’ information.  It was necessary to make it clear that officials would be held accountable and that action would be taken against anyone found to have withheld information or provided false information with the intention of misleading Parliament.

Ms Ndabeni agreed that the transcripts of the recordings of the meetings had to be made available.  The transcripts would allow the Committee to confront the Director-General with what was said.  The committee could request the Director-General to provide documentary evidence of the signed performance agreement.  The action required of the Minister was prescribed.

Mr Steyn agreed that the Committee had to ascertain all the facts and be informed of any subsequent action that had been taken.  The Minister was responsible for ensuring that performance agreements with her subordinate officials were in place.

Ms Morutoa said that the meeting was not intended to be a confrontation between the Director-General and the Minister.  The issue was whether or not the Director-General had made a false statement to the Committee.  She agreed that the Minister had to be present at the meeting.

Ms Ndabeni added that officials could only be appointed once the security clearance process was finalised.

The Chairperson wondered if briefings to Parliament were included in performance agreements.  He was not clear on whether the Minister had to report on what had occurred or would only have to advise the Committee on what action would be taken.

Advocate Van der Merwe replied that the Director-General would be required to provide an explanation to the Committee.  If the Committee was not satisfied with her explanation, the Minister could be requested to advise what action she would be taking.  It was desirable that the Minister was present to avoid any potential disagreement on what was said.  The Minister might be able to inform the Committee immediately what she intended to do about the matter or alternatively request additional time to consider the matter.

The Chairperson advised that the date and time of the meeting would be confirmed.

Report of the Committee on the South African Broadcasting Corporation Section 15A Inquiry Process
The Chairperson read the draft report of the Committee dated 30 October 2012.

Ms Killian said that the Committee had not yet established if the President had closed the section 15 investigation.  She suggested that the Committee obtained confirmation that the process had been concluded.  She suggested that the Committee remained silent on the suspension of the member of the Board or merely stated that the prerogative on what action would be taken against the member rested with the President as the appointing body.

Ms Morutoa remarked that the Committee was allowed to make a recommendation to the National Assembly in the report.

Ms Shinn agreed that the Committee should remain silent at this stage on the recommendation that the member of the Board was suspended from office.

Advocate Van der Merwe agreed to amend the draft report to reflect that the Committee had established that no further action would be taken by the Presidency in terms of section 15 (1) (a) of the Broadcasting Act.  The Committee could request that the National Assembly informed the Presidency that an enquiry would be conducted in terms of section 15A of the Act.  The President was the appointing body and the decision whether or not to suspend the member was his prerogative.

The Chairperson added that the appointing body could only act once a resolution had been adopted by the House.

Mr Steyn pointed out that the Act specified that a member of the Board might be suspended after enquiry proceedings had commenced.  He felt that it would be unfair if the Committee recommended that the member was suspended before the enquiry had commenced.

Mr Kekana agreed that a recommendation to suspend the member would be premature.

The Chairperson agreed to amend the report, as discussed.  Ms Killian proposed that the report was adopted, with amendments.  Ms L Van der Merwe seconded the motion.  The amended report was subsequently made available (see attached document).

Other Committee Business
The Chairperson asked Members to confirm their attendance at the launch of a new product by Neotel on 31 October 2012.  Ms Shinn, Mr Steyn and Ms Morutoa had confirmed that they would attend.  Ms Killian and Ms Van der Merwe were unable to attend.

The Chairperson advised that the adoption of the Committee Schedule for the fourth quarter of 2012 would be postponed to the following week.

Ms Shinn recalled that the Committee had requested the SABC to provide more information on the investigations by the Special Investigations Unit (SIU).  The South African Post Office (SAPO) was requested to provide a breakdown of the R42 million cost of assimilating temporary employees into the permanent workforce.  Both matters required further consideration by the Committee and needed to be accommodated in the Committee’s programme.

The meeting was adjourned.

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