Relationships between Institutions Supporting Democracy and Parliament; Funding Model for the Institutions

Review of State Institutions Supporting Constitutional Democracy

30 October 2013
Chairperson: Ms N Mfeketo (ANC)
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Meeting Summary

The Speaker of Parliament hosted a round table with representatives of several Institutions Supporting Democracy. Unfortunately most of the relevant Portfolio Committee Chairpersons had been unable to join the discussion due to a heavy workload. The institutions were told that they should complement the work of government rather than compete with it.

Several issues were raised, many revolving around communication. A general issue was the difficulty in communicating effectively with provincial government. The Institutions felt that there was a lack of feedback from reports and recommendations made to Parliamentary committees. It was suggested that new Members of national and provincial legislatures should be given presentations on the roles of the various Institutions. It seemed that Members only sat up and took notice when the Auditor-General was involved.

While there was an Office for Institutions Supporting Democracy in Parliament, it was felt that more interaction was needed. This unit was also under-resourced and needed to be strengthened.  The institutions did have their own forum, and would appreciate some interaction with persons such as the Speaker.  They also felt that they needed a way of having access to the Executive. Several institutions wanted to know what notice had been taken of a report compiled by Kader Asmal. Some recommendations had been acted on, but institutions could not see all the recommendations being implemented in the term of the current Parliament, particularly those that would require an amendment to the Constitution.

The House Chair and two Portfolio Committee Chairpersons present responded to some of the concerns.  Better relations would be encouraged between the Office in Parliament and the Committee Section. The Institutions were given a standard invitation to approach the Speaker directly. A debate was needed on the role of the Institutions in Parliament, especially where there were overlapping functions. The Speaker also had a forum with provinces, and the Institutions should be invited to take turns to present at this forum. A meeting would be requested with the Deputy President in his capacity as the Leader of Government business.

Other causes of concern on both sides of the meeting were the high number of vacancies. There was a poor public perception of the different functions performed by the different spheres of government. It was suggested that the public should be educated in this regard, especially at school level. A lack of understanding of matters such as what constituted wasteful spending might result in activities which the public would label as corruption. There were tensions caused by unacceptable remuneration, which might lead to court action.

Institutions were told that many of the financial issues raised were the focus areas of the Asmal report. 

The Public Protector warned of the consequences of continued underfunding. There was a trend towards a deficit of trust developing between government and the people. Institutions were being seen as a fourth tier of government.  He requested that a Parliamentary Committee be identified to which her office could report on fulfilling its mandate while administrative matters could be dealt with by the office of the Speaker.  She was told that the reporting channel was still the Portfolio Committee on Justice and Constitutional Development.

Meeting report

Opening remarks by Speaker of Parliament
Mr Max Sisulu, Speaker of Parliament, opened the meeting at 09h23 and welcomed Members of the House and guests for the second meeting of its kind. There had been an appreciable improvement in the working relationship between Parliament and the Institutions Supporting Democracy (ISD). Like any other relationship, continuous work was needed to keep improving the relationship. ISDs supported the oversight function of Parliament, and Parliament appreciated the important role played by ISDs. The ISDs had to account to Parliament. He quoted the relevant sections of the Constitution. There were values that had to be promoted to improve social conditions. Parliament should work with ISDs, not in competition with them, to improve the lot of citizens.

Mr Sisulu had noted media comments that Parliament was interfering in the work of ISDs. Parliament's involvement with any organ of state was related to its oversight role. ISDs had to be independent and subject only to the law.  However, they were required to report to Parliament on the fulfilment of their mandate and spending of public funds. 

Mr Sisulu commended the ISDs for forming an information-sharing forum. It was important to work together.  Parliament was aware of the challenges being faced by ISDs, particularly regarding funding. He trusted that recommendations would result from this meeting to address these issues. He quoted Nelson Mandela on the need to protect the values of society.

Ms Nomaindiya Mfeketo, Deputy Speaker of Parliament, took the Chair.  Two items had been placed on the agenda, namely communication protocols and the issues arising from the last round table discussion in September 2010.  This platform was over and above the normal interaction with Parliament and the relevant Portfolio Committees.  There was also interaction with the Office on ISDs (OISD).  This platform did not often meet, but was there to resolve issues that could not be resolved during the normal course of interaction with Parliamentary bodies.

Communication Protocols
The Chairperson said that it had been felt that the issue of communication protocols should be on the agenda.  At times sight was lost of the fact that government was one big family, and the different organs should complement each other.  There was a public perception of competition rather than complementation.  This would not help to fulfil the constitutional directives.  A mood of confidence was needed for those who turned to Parliament for protection and the extension of democracy.

Ms Mfeketo said that issues had been raised at the forum with the unit. The issues arising from the Kader Asmal report had been discussed, and were being dealt with by the National Assembly (NA). The report had reviewed the functioning of the ISDs. 

Mr Sisulu noted the absence of several of the Portfolio Committee Chairpersons. He had sent someone to find out where they were.

The Chairperson said that there had been frequent internal interaction on the issues.  Three Chairpersons had confirmed their presence but had not yet arrived. Mr E Kolwane (ANC) had offered an apology that morning, and five others had apologised earlier due to scheduled meetings. This was not acceptable but understandable given the pressure of the looming rising of Parliament. Standing Committees were sitting at every opportunity to complete their work.  She stressed that the meeting was to be in the form of open interaction, and speakers should not be constrained by the presence of the media.

Mr Terence Nombembe, Auditor-General (AG) of South Africa, asked how the spirit of communication could be boosted within the current oversight model. This should be a model for interaction at provincial level as well. The intentions were good, but co-ordination was needed to best utilise the channels.

The Chairperson said that there would be great benefit in the oversight model if there was proper communication. This could be the basis for ongoing discussion.

Adv Pansy Tlakula, Chairperson, Independent Electoral Commission (IEC), had served on the Human Rights Commission (HRC). One of the challenges was the interaction of the NA through the Portfolio Committee.  There was no mechanism for getting feedback from those processes.  The communication seemed to be one-way.  There was no feedback on suggestions regarding legislation.

Mr Mfanozelwe Shozi, Commission for Gender Equality (CGE), said that one of the critical issues was that reports were compiled on gender equality.  A protocol was needed so that the different Committees would take more heed of these reports. The nature of the work of the AG was more intimidating to Committees. He suggested that the different ISDs should be given the opportunity to make presentations to new Members during their orientation phase. The provincial legislatures needed to be included in the process.

Mr Kimi Makwetu, Deputy AG, said that all ISDs were bound by the Constitution to respect the rights of people. Perhaps there was a place in Parliament for engagement with the collective of ISDs in, for example, an issue of tardiness of reaction by a Committee. Issues could then be raised directly with the Speaker.  There were three categories of issue which he envisaged.

Ms Philela Tengeni, Deputy Chair, Public Service Commission (PSC) said that the forum met quarterly. Some issues were very similar for the ISDs.  It would be advantageous if the Speaker could be represented at these meetings. She found that the uptake of PSC reports was above average, but the picture changed dramatically in the provinces. On most occasions the correct audience was not present. There was a large dependence on the office of the respective Premiers. This was not a new issue.  Another issue was that of recommendations, which were often not taken up. Recommendations of the PSC should be accepted, and engagement with the Executive was needed. Accessing the Executive was quite a challenge.

Ms Raenette Taljaard, Commissioner, IEC, said that one of the challenges was the inherent tensions between section 9 and section 155.  Parliament did seem to be aware of this.  The requisite independence of section 181 needed to be recognised, balanced with section 55 responsibilities.  There had been a host of recommendations in the Asmal report.  There were body-specific recommendations within the report together with the more generic recommendations.  She asked if Parliament had looked at these recommendations, as some might need an amendment to the Constitution to institute. 

Mr Bongani Khumalo, Acting Chair, Financial and Fiscal Commission (FFC), raised a new dimension to the issue of feedback and the office established to co-ordinate the relationship.  What was important was that since the OISD had been created, there was more access to the Parliamentary process.  However, there was often no feedback from the OISD itself on reports.  One Committee had contacted him after the mid- term budget policy speech (MTBPS) as it had still not compiled its Budget Review and Recommendations Report (BRRR).  He asked how Annual Reports and related documents were being processed.  It should not be up to the FFC or other institution to follow up on these matters.

The Chairperson said that many important areas had been raised.  There had been a recommendation regarding the OISD.  This needed to be strengthened.  She had never attended this forum.  Its purpose was two-fold.  The Deputy Speaker or the Speaker himself could be invited occasionally.  Parliament had started a forum for discussion with the Portfolio Committees most involved with ISDs.  Issues were discussed relating to ISDs at this forum, but the process could be improved.  Meetings were not frequent enough to allow for speedy responses.  This forum could be strengthened.

Mr C Frolick (ANC), House Chair of Committees, agreed that the relationship between the Committee section and the OISD should be strengthened.  The reports were dealt with, but the manner of response might be deficient.  He envisaged an oversight and advisory service that would track the important documents, and would provide the feedback to the chapter 9 institutions.  The level of interaction varied.  It was the norm to have free flow of information between the AG and the Committees, and other institutions should have the same level of interaction.  Where institutions felt that they were not receiving the same level of interaction they should approach the Committee section.

Mr Frolick said that a new cycle was being followed.  The MTBPS and BRRR were steps in the cycle.  The BRRR had to be adopted before the second reading of the MTBPS, which would only be held on 7 November.

The Chairperson described the role played by Mr Frolick, and representatives of the institutions should feel free to contact him.

Ms D Nhlengethwa (ANC), Chairperson, Portfolio Committee on Co-operative Governance and Traditional Affairs,  said that the Portfolio Committees were the mouthpiece of Parliament, and had been delegated certain powers.  Her Committee interacted with AG, HRC and the IEC and others.  The Committee took note of the reports and recommendations.  Instructions were given to the relevant Departments.  On the Asmal report, one of the recommendations was that a task team should be formed which she believed had happened.  This would be a forum for Chapter 9 organisations.  Meetings were held in the Speaker's office to determine how interaction would take place.  Recommendations from the ISDs were incorporated into the BRRR.

Ms D Ramodibe (ANC), Chairperson, Portfolio Committee on Women, Youth, Children and People with Disabilities, had noticed that the legislation had been watered down for the CGE.  It had been given powers to refer cases for litigation to the HRC.  She had not seen much of that, and had not really had a report.  She would like to see a report on the overlapping functions of the CGE and HRC.  The other issue was that as the end of the term approached, a debate on Chapter 9 institutions was needed.  There should be a full report on the activities of ISDs.

Mr Sisulu said that there had to be a mechanism for feedback.  The best way to do this had to be determined.  Parliaments and provincial legislatures had to be more aware of the role of the ISDs and interact more with them.  There was a special relationship with the AG.  Normally an appointment with the AG indicated a problem somewhere.  Oversight was a two-way process.  Methods were not being institutionalised to ensure feedback.  Interaction should be on a regular basis.  Regarding the provinces, he agreed that better access to provincial government was needed.  There was a Speaker's forum attended by the provinces, and perhaps ISDs could be invited to make presentations at this forum.  He agreed that ISDs needed to be assisted in obtaining access to the Executive.  This should not be seen as the Executive giving ISDs an audience as a favour.  There was also a forum in the office of the Deputy Speaker to deal with the Chapter 9 institutions.  It might be necessary to allocate more staff. 

Mr Sisulu said that every Member had heard of the Asmal report, but not many had read it.  It was an important document.  The recommendations it contained should be handed over to the incoming Parliament.  Problems should be solved together and not come back in another form.  Meetings should not be held once a year, but ISDs should feel free to arrange for more frequent meetings.  He would instruct Mr Frolick to provide the ISDs with the contact details of all the Committee Chairpersons.

The Chairperson said that it was important to have direct contact.  It would also assist if ISDs could discuss what was meant by effective feedback.  Perhaps it should be made clear in the reports submitted where feedback was required.  The Speaker was correct on the issue of communication.  Many Members were ignorant of some of the ISDs, as some had a higher public profile.  She agreed on the suggestion of having Chapter 9 institutions present at the Speaker's forum.  The general public should also be aware of the role played by the ISDs.  Some bodies had small budgets and would find this difficult, but it should not be an obstacle.  These challenges needed to be discussed by the Portfolio Committees.  The Asmal report had some issues that would not be completed by the end of the current term as legislation would have to be introduced. 

Ms Mfeketo continued that those institutions feeling the economic pinch could discuss the issue.  Funding was inadequate in some cases.  The Department of Justice and Constitutional Development (DOJCD) was busy with a Bill focusing on remuneration and conditions of service.  This might not resolve broader budget issues, but would resolve some key issues.  An area that had been correctly raised was the question of feedback and corrective assistance.  She felt that there had been real progress with the establishment of the OISD.  There was greater assistance with the analysis and tabling of reports.  The Committee might not be adequately staffed.  The work often proceeded around the clock.  Parliament needed to attend to this function earlier.  It was important to develop the communication protocols as suggested by the AG.

Mr Paul Helepi, Commissioner, PSC, said that ISDs knew that Parliament was a complex organisation.  There was a need to formalise relationships, listing obligations and responsibilities.  Deepening democracy was not an event but a process.  Structures should be formalised and not just fade away with the current leader leaving office.  Resource needs had to be identified.

Adv Tlakula said that filling vacancies within ISDs was an important point.  This was a difficult situation.  She had been appointed a day before a by-election was due to be held.

Mr Sisulu said that on engaging the Executive, a meeting could be arranged with the Deputy President who was the leader of government business.  This might speed up the solution of some of the problems.  Funding was important, but there would never be a challenge in resources.  Current resources should be utilised more wisely.

Adv Kevin Malunga, Deputy Public Protector, had the sense that people did not know much about politics and the work of Parliament.  The perception was often blurred with the functioning of the Executive, and how the ISDs related to Parliament. 

The Chairperson said that this was an important point.  Communication was still reaching people who had voted for decades but still did not understand the different structures of government. 

Mr Shozi said that Treasury could not help with funding because it was still waiting for the Asmal report to be tabled in Parliament.  CGE could take cases to the Equality Court, but did not have the funds to do this.  Staff members were uncertain of their future given the tight funding.  Certainty was needed.

Mr Frolick responded that there were public participation programmes.  The National Council of Provinces (NCOP) was currently sitting in the provinces.  The Speaker's forum had adopted a public participation framework.  Each provincial legislature had been tasked with developing a public participation model.  Education was an important component, and feedback had to be given to the people.  The basic tenets of democracy should be included in school curricula, particularly in the Life Orientation subject.

Rev Wesley Mabuza, Chairperson, Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL) said that Portfolio Committees were a vehicle that could be used.  He represented seventeen separate commissions.  ISDs had been thrown into the deep end.  Orientation and induction was weak, and serious mistakes were being made.  The concept of wasteful expenditure was not explained.  This gave a false perception of corruption.  Governance was a complicated matter.  His commission was not represented in the provinces.  There might be another commission needed to work on this commission.  His commission only made news when pronouncing on Rastafarianism and dagga.  A conference on albinism had not been publicised in the media.  The media played an important role.

Ms Tengeni said that the issue of funding could not be locked to the Asmal report.  It was problematic that funding came from a programme within a Department.  The second problem area of filling vacancies had been discussed.  There were problems in two provinces in particular.  The process of filling vacancies was complicated as this was done at national level.  The provinces could not be allowed to hold the PSC to ransom.

The Chairperson said that government did try to keep track of the expiry dates of the contracts of commissioners, and put plans in place to replace or re-appoint commissioners.  Issues around the Asmal report had been raised.  The suggestion to have a meeting with the leader of Government Business was important, and one of the forums could be used for this purpose.  At times there was strong resistance on changes to the budget process.  Most of the challenges raised could be sorted out by effective communication with the responsible stakeholders.  Existing structures could be used effectively.  The forum held by the ISDs could be broadened to include Parliament, the Deputy President and Ministers.  Internal processes should also be used.  Mr Shozi had raised important issues, and these should be tabled before the end of the term of Parliament.  It was not an easy process as there were many stakeholders to be consulted.  Only those areas requiring constitutional amendments would not be able to be processed properly in the current term. 

The Chairperson agreed on the need for detailed discussion on communication protocols.  This could be done at the forum.  There needed to be a benefit.  She suggested that the OISD not be left out as this represented Parliament.  She understood the problem with vacancies.  Vacancies should be filled in good time before current office bearers vacated their offices.

Adv Thuli Madonsela, Public Protector, thanked the Speaker for providing the platform.  She endorsed the idea of a communication protocol.  Even her office had not grasped the concept of the accountability to Parliament as enshrined in section 151 of the Constitution.  The protocol should also detail what the process should be in interaction between the Speaker and the relevant ombudsman.  Separation of powers principles did not really apply to the Chapter 9 institutions.  Some of the overtones were suggesting that there was a fourth sphere of government.  On funding, when an ombudsman in another country requested a budget, it was granted.  This did not happen in South Africa, and there was an increasing trust deficit between government and people.  Limited funding was contributing to this.  She asked what was preventing Parliament from discussing the Asmal report properly. 

The Chairperson said that only one resolution had been adopted because of its complexity.  It had been referred to various bodies and Committees.  The report had now done its rounds.  There were still pockets of resistance.  She wanted to be sure that there had been proper engagement before the report was tabled.  She emphasised that Portfolio Committees were the heartbeat of Parliament.  The Speaker was responsible for Parliament and had 111 tasks.  It was difficult for him to have a hands-on approach to all his tasks.  Portfolio Committees mirrored each and every Department.  All correspondence was processed in the Portfolio Committees.  The line of accounting for any ISD was to the relevant Portfolio Committee.  The ISDs interacted with Parliament at different levels on different occasions. 

Mr Makwetu wanted to understand the way forward on the Asmal report.  The report originated from 2007, during the term of the third Parliament.  Not everything in the report was likely to be realised by the end of the the term of the fourth Parliament.  He asked if there were any issues likely to be left over for the next Parliament.  The current trend suggested that several issues would not be concluded in the current term.

Mr Khumalo said that the FFC had sat with an Acting Chairperson since 2010, and should have two full-time Commissioners.  The Acting Chairperson was also the Deputy Chairperson and Accounting Officer.  This situation presented a number of challenges.

Ms Taljaard wanted clarification on the Asmal report.  There were clear areas where Constitutional amendments were needed.  These would probably not be adopted in the current term, and were probably those where there would be the most profound political division.

The Chairperson responded that the assessment was based on what was being done currently. The Asmal report was a recommendation that must be agreed to by the NA.  A workshop had been held, and inputs were still needed from the ISDs.  There were areas agreed to by all parties.  She was convinced that certain issues could be tabled in the current term.  The report could be tabled, but there would be some outstanding issues.

Ms Mfeketo had noted the concern about the situation at FFC.  The Minister was doing the work of filling vacancies. 

Ms Madonsela said the ombudsman offices across the board reported to Committees.  Her office reported to a range of oversight bodies.  Her body reported in Chapter 8, and there should be a Committee dedicated to interact with the Public Protector.  One of the issues dealt with was ethics.  The question was where the ombudsmen should be located.  She felt that accounting on financial matters should be to the Committees., but in terms of personal business such as going on leave, she should account to the Speaker.

The Chairperson replied that there were certain accounting responsibilities.  Reports should go to the NA.  Areas of ethical misconduct should go to the NA and the Speaker rather than a Committee.

Mr Frolick said that Parliament would decide how it conducted its business.  The previous Parliament had decided that the Office of the Public Protector would conduct its business with the Portfolio Committee on Justice and Constitutional Development.  This had been continued in the current Parliament.

Mr Sisulu said that most issues would be finalised by the end of the current term.  The intention was to finalise everything, but this might not be possible.  He had an open door policy.  The Public Protector was welcome to approach him at any time.  Vacancies were a problem, and could not be dragged out for years.  He would raise this issue with the Deputy President and the responsible Minister. 

Mr Helepi said that section 219 (5) provided for national legislation for the PSC.  There had been devastating financial implications for commissioners.  His term would expire in January.  There was an arbitrary element in the compensation mechanism, and commissioners might have to resort to the courts.  An audience was needed with the Speaker's office on this matter.

Mr Sisulu was open to such discussions.

The Chairperson said that it was important that each and every Committee should not leave issues lying for twenty years.  The priorities of Parliament had changed over the years. 

Mr Nombembe commented on the opportunity raised by the Speaker to link up with key organs of government, both at provincial and national level.  This could also be taken up with local government.  This opportunity should be accepted with open arms to increase the value of democracy.  This was a primary reason to accept the communication protocol.  Collective work was needed to address the problems faced by the country.

The Chairperson said that important issues had been raised.  She summarised the issues raised.  The exiting platforms should be used to the benefit of all.  Communication with the broader community should be enhanced.  Protocols should be drafted and tabled in the current term of Parliament.  The Kadar Asmal report should be tabled by the end of the current term, although some aspects might have to be deferred.  The process of filling vacancies should be expedited.  The Leader of Government Business could be invited to one of the forums to promote access to the Executive. A booklet had been produced at the first round table, and she hoped to see a similar publication arising from this meeting.

Adv Tlakula said that the issue of funding had to be addressed.

The Chairperson said that this was addressed in the Asmal report.  She thanked the ISDs for their attendance, the Members and the media.  Parliament regarded itself as part of a big family with a mandate to strengthen constitutional democracy.  Her office was only a telephone call away.  It was important for institutions to make use of this opportunity, as some did on a regular basis.  These ISDs received the support they requested.

The meeting was adjourned at 11h52.


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