The Ad Hoc Committee met to deliberate on the Report of the Public Protector on the Electoral Commissions acquisition of its Head Office premises.
The African National Congress was of the view that there was need for more information to be provided to the Committee to assist it in reaching a conclusion. The ANC requested for the following: that the Chairperson of the IEC be given an opportunity to respond to or make a submission on the Public Protectors Report; that the former IEC Commission be called to make a submission on the transactions; and that the Office of the Auditor General should also make a submission on the procurement of building.
A Member from the Democratic Alliance suggested that the Committee should seek a legal opinion from Parliament’s Legal Advisers whether it was appropriate for somebody to be referred to the Electoral Court for activities which took place before that person was a Commissioner. An IFP Member said that he was uncertain about what the exact mandate of the Committee was. The mandate basically stated that the Committee must consider and report on the recommendations. However in the report he did not find any heading called “Recommendations”. This meant that the Committee had to go through hundreds of pages to identify recommendations for the report. The second concern was whether the Committee was limited to only looking at the recommendations. The question was whether the Committee could put in doubt the findings of the Public Protector and whether the Committee could ask as some sort of appeal court on the review on if the Public Protector was correct in her findings. Was the Committee just supposed to accept the findings as they were? The Committee had to either accept or reject the findings and if they were rejected, on what basis was the rejection done. Did the issues of concern happen when the IEC Chairperson was not yet a Commissioner?
Led by the Committee Chairperson, it was agreed that the Ad Hoc Committee would seek a legal opinion as suggested by the Members. The Committee discussed the possibility of getting an opinion from a senior counsel outside Parliament and emphasised the need for quick action.
The meeting was adjourned with expectations for the submissions to be received in about seven days. After the submissions were received, the Committee was going to proceed with its deliberations.
The Chairperson welcomed the Members of the Committee and said that he was aware that some Members wanted to raise certain issues before the discussions started. He called on Members to make their opening remarks.
Mr B Manamela (ANC) told the Committee that he had gone through the Public Protector’s report and based on what was presented to the Committee and other considerations, the ANC believed that certain information was required to help the Committee come to a conclusion on the matters related to the mandate of the Committee.
The ANC was of the view that the Chairperson of the Independent Electoral Commission (IEC), Adv Pansy Tlakula, had not been given an opportunity, or put differently, had not made a submission in response to the Report which was before the Committee. This was going to be of material importance in helping the Committee come to a conclusion. The ANC was of the opinion that the Committee should ask Adv Tlakula to make a written submission and on the basis of that the Committee could decide how it would interrogate the submission.
The Public Protector’s Report focused on the fact that the former Commissioners took the decision to procure the building. However, only the Chairperson of the former Commission was interviewed. The ANC felt that there were other people who were part of the previous Commission whose submissions could be important in helping the Committee come to a conclusion.
There was also reference to the Auditor-General having cleared the procurement of the IEC Building but the ANC felt that an extensive submission by the AG’s Office would help the Committee in reaching a conclusion on the whole issue. So the proposal was to have these three additional submissions for consideration and on the basis of these the Committee could make its own conclusions.
Mr J Selfe (DA) said that the request made by Mr Manamela was a reasonable one as it was going to assist the Committee in coming to a right conclusion. The DA actually wanted to request some of the information which the ANC had just requested but there was another bit of information which was going to assist the Committee and this was a legal opinion obtained from the Parliamentary Legal Advisers. The legal opinion was going to relate to whether it was appropriate for somebody to be referred to the Electoral Court for activities which took place before that person was a Commissioner. He had a difficulty in establishing that the Committee was competent to do what it was requested until there was legal finality on such matters.
The Chairperson confirmed that the legal opinion to be sought had to clarify whether the Electoral Court had jurisdiction to consider whether a matter dealt with by the then Chief Electoral Officer (CEO) who was now the Chairperson was appropriate.
Mr T Botha (COPE) remarked that there was reference to the fact that the tender was first awarded to Menlyn Park. This was a decision that the then CEO had decided to refer to the Commission after she had taken a decision. What was not clear was whether that particular award had followed the required procedure because reference was made to the fact that she unilaterally changed the decision of the Commission. It was important to ask if the Commission took a misinformed decision and if it followed the procedure which was prescribed in the IEC regulations.
The Chairperson said that the point raised by Mr Botha was an important one and he assumed that it was one of the reasons why the other Members were requesting that the previous Commission appear before the Committee to answer these issues.
Mr J Van der Merwe (IFP) said that he was uncertain about what the exact mandate of the Committee was. The mandate basically stated that the Committee must consider and report on the recommendations. However in the report he did not find any heading called “Recommendations”. This meant that the Committee had to go through hundreds of pages to identify recommendations for the report. This was taxing. The second concern was whether the Committee was limited to only looking at the recommendations. The question was whether the Committee could put in doubt the findings of the Public Protector and whether the Committee could act as some sort of appeal court and review if the Public Protector was correct in her findings. Was the Committee just supposed to accept the findings as they were? The Committee had to either accept or reject the findings and if they were rejected, on what basis was the rejection done. Did the issues of concern happenned when Adv Tlakula was not yet a Commissioner?
Mr Manamela noted that the ANC shared the same concerns in relation what had to be done by the Committee. The proposal from Mr Selfe to get a legal opinion was very helpful to the Committee. There were institutions in Parliament whose main responsibility was to deal with Chapter 9 institutions. It was also important to get the role of the Committee in this regard as this was a Chapter 9 institution making a finding on another Chapter 9 institution. The Committee could then make a decision based on the legal opinion received.
Another important issue was the nature of the request which had been made to the Speaker. The Committee had to understand that the Public Protector had referred this report to the Speaker asking Parliament to consider the report and subsequent to that there was a request p that the matter be referred to the Electoral Court. It was good for the Committee to have such correspondences maybe as part of the legal advice from Parliament. This was going to clarify the responsibility of the Committee.
The Chairperson told Members that just before the meeting had started, his Personal Assistant had brought him a copy of the Public Protector’s letter to the Speaker and copies were being made for all the Members. The Committee was going to formally request a written response from the AG’s Office on the transaction relating to the Riverside Park complex. A written response was also going to be requested from Adv. Pansy Tlakula to the Public Protector’s report. The Committee was also going to request a written legal opinion from Parliament’s Legal Advisers and possibly for them to appear before the Committee to assist with any further clarification.
Adv A Gaum (ANC) explained that the request for the legal opinion had to be very clear on what it had to cover. It had to cover the question of the jurisdiction of the Electoral Court, the issue of the exact mandate of the Ad hoc Committee and how it had to be interpreted, and it would have to cover the matter of whether the Committee could make findings on the findings of the Public Protectors Report.
Mr H Schmidt (DA) added that the legal standing of the Speakers request that the Committee consider the referral to the electoral court should also be included in the legal opinion.
Ms J Moloi-Moropa (ANC) indicated that it was important not to forget the written response from the previous Commission.
The Chairperson asked if the Committee wanted a written response from the Commission or whether it should appear before the Committee.
Ms Moloi-Moropa replied that it would be good to look at the written responses and if more clarity and information was still required, then the Commission could appear before the Committee.
Mr Selfe said that the Commission could give a written response but many of the transactions in question were quite intricate so there was need to interrogate some of those intricacies. This could only be done if the Commission appeared before the Committee. He thus recommended that the Commission should appear before the Committee.
The Chairperson explained that the concern which was arising was that the previous Commission agreed to a transaction relating to the Menlyn Park Office Complex and on her return from overseas, the then CEO was informed of this and she told the Commission that they did not follow proper procedure. On that basis, there was probably a review, rescind and rethink. The Committee could ask the Commission to respond in writing and take it from there.
Mr Botha said that he was not sure if the recommendations of the Public Protector could be changed based on the findings of the presentations and submissions which were going to be done by the people who were being invited to the Committee. Was the Committee now turning into an inquiry? If the Committee was not an inquiry then it just had to act on the Report before it.
Mr Selfe explained that the adopted motion stated that the Committee had to consider and report on the recommendations. Mr Van der Merwe had raised the issue of what the recommendations were. What the Committee had to do was to produce a report for consideration by the National Assembly on the Report of the Public Protector and whether some of the initial findings were brought to question was another matter but the Ad hoc Committee had to produce a report on the recommendations. At the very least the former Commissioners had to appear before the Committee.
Mr Van der Merwe explained that he was still concerned whether the report from the Public Protector was final or could the Committee call witnesses and place it in doubt. In other words, could the Committee review the report or was it bound by the report. The answers to this could be included in the legal opinion.
The Chairperson agreed with Mr Van der Merwe.
The Chairperson asked if there was any other concern from the Members.
Mr Van der Merwe proposed that under the circumstances, the Committee could adjourn for the day.
The Chairperson agreed and stated that the Committee could proceed until the written responses were gotten.
Mr Manamela said that the Committee could expect to get the written responses within seven days so preparations to meet during that period could be made.
The Chairperson asked the Committee to leave the matter and the requests in his hands and ensure that the responses were received as soon as possible. In the meantime, the legal opinion was going to be a written one but with the understanding that more guidance was going to be needed during the proceedings.
Mr Van der Merwe asked if this was not a proper case to seek the opinion of a Senior Counsel from outside Parliament. He explained that he did not mean to say that the Parliamentary Legal Services were incompetent.
The Chairperson asked if the Committee had the authority to say that it wanted legal counsel from outside or was that going to be requested from the Speaker himself.
Ms Moloi-Moropa was of the opinion that the matter was referred to Parliament and Parliament had to capacity to deal with the matter and there was no need to source out assistance.
The Chairperson said that the trouble was that sometimes the Parliamentary Legal Advisers themselves advised that perhaps outside opinion could be received. It was not that they were not capable but that it was a case of a Chapter 9 institution conducting an investigation and giving a report on another Chapter 9 institution. However, he was going to confirm with the parliamentary legal advisers.
Mr Selfe emphasised that the recent events had left the IEC in a fair degree of stress and the faster the matter was dealt with, the better it was for the IEC and all stakeholders. He urged that the Committee should proceed as quickly as possible because of the imminence of the elections in 2014.
The Chairperson said that the Committee had until 31 October 2013 so there was definitely need for quick action. He asked if there was anything else which Members wanted to raise. He reminded Members to get copies of the Public Protector's letter to the Speaker which was going to be handed out by the Committee Secretary.
The meeting was adjourned.
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