The Committee, having approved the agenda and minutes, discussed the two matters arising from the previous meeting, to which the Chairperson had been asked to give further consideration. The first was the request by Dr Mulder, representing the FF+ and other minority parties, that Mr Swart from the ACDP be co-opted as a member of the Committee, to fill the place for which COPE had not made a nomination. The Chairperson noted that this request had already been directed to the Speaker, who said he had no power alone to alter the proportional representation agreed upon by the Rules Committee, and he was not willing to exercise his discretion in terms of Rule 148 to change the ruling of the Speaker. Mr Swart was permitted to attend and participate, but not to vote. The second matter was clarity on the mandate of the Committee. It was clarified that the Speaker had, in referring to “submissions”, intended that the Committee may have regard to the response of the President, the Public Protector’s report and the proclamation mandating the Special Investigating Unit (SIU) to investigate matters involving the Department of Public Works. There was some argument by the DA whether this was subsuming one document to others, but in general Members noted that regard could be had to all those documents, which had been circulated. Other documentation referred to, including the report of the inter-Ministerial committee, and anything else that would allow the Committee to reach a logical conclusion, could also be considered. The Chairperson clarified that there was no question at this stage of summonsing anyone to appear before the Committee.
The DA had addressed a letter to the Chairperson (and this raised another discussion on the mandate) proposing a way forward, which essentially was that people should be called to give evidence to the Committee, including the Public Protector (PP), the authors of the Security Cluster (inter-Ministerial) report, the Ministers of Police and Defence, Head of the Special Investigating Unit, spokesperson of the Council for the Advancement of the South African Constitution, which had made written submissions, and of any other relevant entity. Given the limited time that the Committee had (until 30 April), it believed that an extension of time was necessary but that there was no reason why, if it sat diligently, the Committee would not be able to complete the work. Whilst the ANC Members agreed that it would make sense for other documents to be considered by the Committee, in addition to the President’s response, some expressed the view that it was not proper for the Committee to investigate matters that other bodies (such as the SIU) were still working upon. The ACDP noted that the President had stated that he would furnish a fuller response upon receipt of the SIU report, but this Committee did not have to accept that, and proposed that further investigations be done into whether that report, or at least a preliminary one, was yet available. The IFP representative, whose viewpoint was also supported by the ANC, made the point that whilst these proposals were desirable to get the necessary information, there was clearly not enough time to deal with them in the time available. There was a need to be practical and realistic about what could be achieved. The ANC maintained that the matter could not be rushed. The point was made that the Committee should, if calling in one civil society entity, at least give the same opportunity to others. The ANC felt that what the DA was suggesting was tantamount to this ad hoc Committee conducting a new inquiry, and cautioned that it should not do so and interrogate the report of the Public Protector anew. This was a complex and complicated matter warranting much time, and the fact was that the country was due to go to the polls on 7 May.
The DA countered that it had not in fact suggested a new inquiry, but felt that it was essential to call for more input on the issues because the Public Protector needed to articulate what the questions were on which she had been unable to get clarity, to interrogate the reasons for the “stark differences” between the findings of the Public Protector and the inter-Ministerial committee, and called for a counter-proposal from the ANC, rather than merely for criticism as to why the DA proposal was considered unworkable. The DA further reiterated the point that the Committee found itself short of time because the ANC had taken eight days, as opposed to the one taken by the opposition parties, to nominate Members to serve on this Committee. The FF+ said that there were constitutional matters at play, for the Public Protector had highlighted, several times, instances of “improper conduct”, “maladministration” and “unlawful” behaviour. The Committee had a constitutional duty to hold the Executive to account.
Discussion ensued on the short time remaining for the Committee to complete its work. The DA reiterated that it would have had more time had the ANC not taken eight days to nominate members for this Committee, whilst the opposition parties had taken only one. It maintained that it was still possible to work on the matters in the time available. The ANC countered that it had acted in terms of the Rules and was entitled to give due consideration to the nominations, and it was not trying to delay the matter. The quality of work could be compromised by rushing it, and if the work could not be completed, it would be of no value to the Fourth Parliament. After a caucus, the ANC made the point that South Africa was advanced enough to accept that executive structures could be questioned. The ANC took the matter “quite seriously” and this Committee should not take its role lightly. It did not believe that the time allocated was sufficient to explore all the matters, and not only did the pending election impact upon the time available to do the work; there was also a danger that this work might be used to influence voters. It agreed that several questions must be asked of the Public Protector, including those about her power and authority, and why the investigations were not concluded, as well as of other entities. There was not enough time to interrogate the issues, did not believe that there was any sense in embarking now upon work that could not be completed, even if an extension was granted, and suggested that the Committee ask the Fifth Parliament to look into the whole matter. The reports would still be available.
Opposition parties were disappointed in this proposal, and made the point that on the one hand the ANC was stressing how serious the work was, yet on the other suggesting that it was not prepared to work on it, and there appeared to be lack of political will. They were reluctant to accede to this proposal, for there was no guarantee, firstly, that the new Speaker would convene another committee, and no certainty on terms of reference, and the impression was created that the ANC was hoping to dismiss the whole matter for ever. At the very least, they stressed that this Committee should continue with the work in the time available in order to make a very firm recommendation to form a new committee to make a full investigation. The IFP made the point that surely the President must have been aware of “things taking place in his back yard and… should not shy away from responsibility”, yet his response to the Speaker was not sufficient at this time for the Committee to continue its work. The ANC said that it wanted to clear the matter and get its own answers. A formal proposal was made that the matter be referred to the Fifth Parliament “for its consideration”.
During discussions on the timing, the DA made the point that one of the reasons that the Committee was in this position was because the ANC had taken eight days, as opposed to the opposition parties taking one, to nominate members for this Committee. The ANC countered that it had acted within the Rules. An ANC Member further expounded that the Public Protector had not issued her report until 19 March, and this led to the perception that her delay in issuing the report was “politically motivated”. The DA and ANC pointed out that the delay of nine months in fact was occasioned by the President’s failure to reply to the questions asked, and found it “contemptible” that an MP should question the political bias of an independent body appointed by Parliament to protect the public interest. The FF+ said that the ANC clearly did not want to see justice before 7 May, made the point that this Committee could not bind the next parliament, and believed strongly that Members, by not dealing with the matter, were failing in their duty to Parliament and the Constitution. The DA and the ANC each suggested that the other party was merely acting according to pre-determined decisions. An ANC Member confirmed that he did indeed get his mandate from the party, and was not ashamed to say that he was “not representing any person” but his party. Another DA Member was quick to remind him that this seemed contrary to his MP’s oath to uphold the Constitution, which included holding the executive to account. The ACDP representative urged that the Committee might at least be able to get clarity on the status of the SIU investigations, and then draw a legacy report setting out what it had covered and what remained. The motion of the ANC was passed, by six ANC and one IFP vote, whilst that of the DA received two DA and one FF+ vote.
Two Committee reports were put up later for consideration, and the report drawn by the Committee Secretariat, as amended - recommending that the Fifth Parliament undertake the work, in view of the fact that insufficient time was available to this Committee - was adopted by majority vote. The objection of the DA was noted. An alternative report suggested by the DA, which said that to the extent that this Committee not be able to fulfil all tasks, the outstanding matters be referred to an ad hoc committee in the Fifth Parliament to investigate any outstanding matters, including whether the President misled Parliament, whether he violated the Constitution, whether he benefited improperly from the work at his residence, any remedial steps, and whether he should be removed from office in terms of section 89 of the Constitution, was rejected by the majority.
Chairperson's opening remarks
The Chairperson wished everyone a very happy 20 years of democracy.
Adoption of agenda
Members, at the request of the Chairperson, adopted the agenda
Adoption of Minutes of 24 April
The Chairperson noted that the minutes of the meeting of 24 April were distributed, and asked for comment.
Mr S Swart (ACDP) noted that he was not an advocate, and asked that his citation be corrected.
The minutes were adopted, with that correction.
Mr J Selfe (DA) noted that the minutes of 24 April had set out the matters on which the Chairperson was asked to seek clarity and asked if the Chairperson could report back.
The Chairperson agreed that there were essentially two matters. The first related to the request to include Mr Swart as a full member of the Committee. He informed the Committee that on 11 April 2014, Dr C Mulder (FF+) had written, in his capacity as representative for all the smaller parties on the Committee, to the Speaker, asking that the seat allocated to COPE be allocated to another smaller party. The Speaker had replied on 15 April referring to the fact that seat allocation was determined by the strength of their representation, by the Rules Committee, in line with an agreed formula and expressed the view that he was not empowered to change this on his own. However, he did point out that National Assembly (NA) Rule 153 provided that any Member of Parliament could attend and speak at any meeting. The Chairperson may allow anyone to attend, subject to whatever restrictions that Chairperson wished to impose.
The Chairperson noted that mention was made, during the meeting of 24 April, of Rule 148, which allowed the Chairperson to exercise discretion. However, in view of the fact that the request had already been escalated to the Speaker he did not believe that it was appropriate to change the ruling of the Speaker. He therefore ruled that Mr Swart may participate, but would not be able to vote.
The second matter that he had been asked to look into related to the mandate of the Committee. He had followed up on this with the Speaker, who was responsible for publication of the mandate in the ATC.
He made the point that on 19 March 2014, the Public Protector (PP) had released a report on the security upgrades on the President’s residence at Nkandla. That report was not submitted to Parliament, but to the President. The President was required, within a reasonable time after receiving the report, to submit his response to the NA. On 2 April he had submitted a letter to the Speaker, in response to the PP report, making reference also to, and attaching, the Proclamation requesting an investigation by the Special Investigating Unit (SIU), and a copy of the PP’s report. These submissions constituted the President's response to the PP’s report. The documents were published in the ATC on the same day.
The Speaker had decided, after following a consultative process, to establish an ad hoc committee to consider the submission made by the President, and this was announced in the ATC of 9 April. This ad hoc committee was specifically established in response to the President’s reply, and this formulated the mandate. As the three documents submitted were related, the rationale was that the ad hoc Committee must look at the letter by the President, the SIU proclamation and the PP’s report, in the context of the response given by the President.
The Chairperson said that prior to this meeting he had been approached by the media, questioning the possibility of summonsing witnesses to appear before this Committee. The Committee had not yet taken any decision about calling any witnesses, let alone summonsing them, and he pointed out that summonsing was something that usually occurred after a very long procedure and he could not recall this having been done during the Fourth Parliament. The President had clearly indicated his willingness to interact with the NA, and expressed an understanding of his mandate in terms of the Constitution and as head of state. The issuing of summonsing was not, therefore, on the agenda. The Committee would confine itself to the mandate as stated.
Ms L Mazibuko (DA) said that from a straightforward reading of the mandate, the PP’s report and the SIU proclamation appeared to be relegated to “related documents”. Nowhere in the terms of reference for this Committee was there an indication that one of the documents must be considered principal and the others secondary. No document referred to this Committee had ever referred to "the submission" (in the singular) and she submitted that this was misleading. She asked for clarity on the Chairperson’s interaction with the Speaker, whether an legal opinion was obtained and how it was decided that two documents appeared to be subservient to the President’s response.
Ms D Dlakude (ANC) wanted to remind MPs that the report of the PP was not submitted to Parliament. It was the President who attached it, with his response to the Speaker. She urged that the Committee should abide by its mandate.
Dr Mulder said that the Committee must deal with the PP’s report. The President having attached it to his letter, this Committee must devote the same amount of time and energy to the PP’s report as it did to the President’s letter. The reality could not be ignored.
Ms J Moloi-Moropa (ANC) said that she hoped that the question around the position originally allocated to a COPE representative had been clarified. the issue raised by the vacancy of COPE had been clarified, and that was dealt with. In relation to the PP’s report, she said that, as indicated by Ms Dlakude, the report of the PP was not presented directly to the House, but came as an attachment to the President’s letter. Not only was there reference to that report, but also to an inter-Ministerial committee report, which thus also constituted part of the documents.
Mr C Burgess (ANC) wanted to raise a point of order. He took it that the Chairperson had consulted on the terms of reference, and suggested that the Chairperson simply rule on the point.
The Chairperson said he would prefer to hear all the comments first that MPs may wish to raise.
Mr Selfe referred to the letter by the Speaker, which referred to "submissions" and "documents" (in the plural). A very important addition, to his mind, was the statement that after consultation with the Chief Whip of the majority party, the Speaker had decided that the ad hoc Committee should, in terms of Rule 241, consider "the submissions" (plural) of the President in response to the PP’s report and “to make recommendations where applicable”.
He recognised that the PP’s report was not referred in the first instance to Parliament, but said that the ad hoc Committee had been enjoined by the Speaker to consider “the submissions” and that included the copy of the Public Protector's report. To the extent that the inter-Ministerial task team was relevant, it was traversed in the PP’s report also, and it would be appropriate and relevant to consider what had been said in relation to those issues. More specifically the President had referred, in his letter to the Speaker, to the fact that security ministers had cooperated in the PP’s investigation, and that both bodies had enquired into the same subject matter. However, there were, according to the President “stark differences” in their findings. He did not believe that it was possible to do justice to the response without enquiring into both the PP’s and the Security Cluster’s reports, for it would not be possible to ascertain what the “stark differences” were unless this was done. For this Committee to do any less would mean that it would be failing in its mandate.
Mr N Singh (IFP) wondered if there was anything in writing that could be tabled to the Committee in relation to the terms of reference as set by the Speaker. He noted that the PP’s report was attached to the President’s letter to the Speaker and thus he believed it should be part and parcel of the Committee deliberations.
Dr Mulder said he wanted to address the position of Mr Swart. It was correct that he had written to the Speaker asking that the vacancy arising through COPE not nominating a representative should be filled by Mr Swart. The Speaker's response indicated that he could not change the proportionality on his own. However, the argument put forward on 24 April was based on Rule 134, which set out that if a member of a committee or his/her alternate could not be present (which was the case with COPE) the Chairperson had a discretion to co opt "any other Assembly member" to act until the permanent member was no longer absent. He requested that, under that rule, the Chairperson use his discretion and formally co-opt Mr Swart.
Mr B Manemela (ANC) said, in answer to Mr Singh, that it would be clearly be absurd if this Committee were to consider the President’s response to the Speaker without also considering the PP’s report, as it would have been nonsensical also for the President to have responded without attaching that report. This Committee should, in his view, consider the PP’s report. For ease of reference that report had been provided to Committee Members, as well as the SIU Proclamation. There was not, in his view, any dispute about that, which was why Members had requested time to go through the report. The main issue was that it was not, however, correct to suggest that the main function or task facing this committee related to the PP’s report. That report was, in the sense that it was referred to as part of the President’s response, incidental.
Mr Manamela also wanted to comment on the co-option of Mr Swart. The Committee was not yet aware of whether COPE was merely absent, or whether the party had actually refused to participate. Even if it had made the latter decision, this did not in itself suggest that the Chairperson must then co-opt an ACDP member. He agreed that any MP would be able to participate in the proceedings of the ad hoc Committee, but may not vote. He made the point that the same applied to alternate members also.
Dr W James (DA) confirmed that there were three reports on the table, so this Committee must confirm that. Once that was clearly confirmed, the Committee needed to set an agenda to deal with all three.
Mr Swart made the point that if, today, the Committee found itself without a quorum, the Chairperson would be able to co-opt another MP. Whilst he appreciated that the Speaker had taken a decision on the point already, he urged that the Chairperson still had the ability and discretion to take a decision on his participation today.
Mr Swart agreed that it would be absurd not to consider the Office of the Public Protector's report - but the obvious question was how it would do so, in the short term available. If two other reports were also to be considered, it was necessary to be mindful of the fact that the time given to this Committee was limited.
The Chairperson referred to his communication with the Speaker, and asserted that he had already applied his mind to the question of Mr Swart’s attendance. The point about the possible lack of quorum was speculative. The Speaker had already applied his mind to the point. He reiterated that the slot allocated to COPE would not be re-allocated and no other member would be co-opted.
The Chairperson referred back to the comment by Ms Mazibuko and dismissed the allegation that there had been any “misleading” of the Committee, with “the contempt that it deserves”. He reiterated that on 24 April there was reference to the documentation. The responses had been tabled in the ATC. Without getting different interpretations he had taken the liberty of discussing the terms of reference with the Speaker and the latter was quite clear that the Committee should consider the response of the President. He asked the Secretary of the NA to confirm that point and, if necessary to amplify on that.
The Secretary to Parliament confirmed that the Chairperson’s statements around his meeting with the Speaker were correct, and he had nothing to add to that matter.
The Chairperson said that this made it clear he was not misleading the Committee. It was clear that there were responses. This brought the Committee on to the point raised by Mr Swart about the extent to which this Committee could consider all the documents. Mr Swart had also made reference to another document mentioned by the President, the inter-Ministerial committee report, which was referred to the Joint Standing Committee on Intelligence, and which was published in the ATC. As the Chairperson, he would allow reference to any document that would assist this Committee in arriving at a logical conclusion on how to take the process forward. He invited comment.
Ms Mazibuko maintained that whether or not the Chairperson viewed it as contempt, she wanted to reiterate that any implication that any of these documents were somehow subservient to the President’s response was not correct. The Speaker referred to "submissions" (plural) and never once made reference to the Committee concerning “the President’s response”, which he would surely have done had he wished to. Nevertheless the Chairperson had had discussions with the Speaker. She still maintained that the documents before the Committee should not be given any special precedence. The Committee must consider the three submissions before this Committee, not just the President’s response, and she believed that no undue preference should be given to one or the other. The President had included the PP’s report and the SIU proclamation as part of his response to the Speaker, but it was not helpful for this Committee to try to subvert these and to focus on the letter of the President. She was comforted by the response of Mr Manamela, who agreed that it would be absurd indeed should all three documents not be considered.
She wanted to table a proposal as to how the Committee could deal with the matter. The attached document, in the form of a letter dated 28 April, was circulated.
She read out the letter, which referred to discussions taking place on 24 April. The Chairperson had requested parties to give consideration as to the way in which the mandate could be approached, and to determine whether any persons had offered to give testimony. To the knowledge of the DA, at least the Council for the Advancement of the South African Constitution (CASAC) had made written submissions. She thus proposed that its representatives should be permitted to address the Committee and speak to the document it had drawn. It may be that other bodies had done something similar and, if so, she suggested that they also be given the opportunity to testify.
The President's submissions (and she was quoting from the ATC) consisted of:
(a) the letter from the President
(b) the Proclamation establishing the SIU investigation into certain activities of the Department of Public Works
(c) the PP’s report entitled “Secure In Comfort”.
She noted that the Public Protector had referred to findings and unanswered questions. The President, in his letter to the Speaker, said that the investigations conducted by the Security Cluster and the PP concerned essentially the same subject matter, yet reached conclusions on both findings and recommendations that differed substantially. The President said that he had never before encountered such an anomaly.
Mr Burgess wanted to raise a point of order. He asked whether the Committee was still dealing with the agenda and matters arising, for this appeared to be a proposal that went to the substance of the meeting.
The Chairperson agreed with this comment and asked Ms Mazibuko to hold back for a moment on the point that she was raising. He thought that the “matters arising” issues had been dealt with. He suggested it was now instructive for the Committee to consider the direction in which it was moving. Primarily the Committee was here to look at the response of the President. He asked Members to read carefully the letter of the President right up to the last paragraph.
Commenting on the point of Mr Burgess, he proposed the addition of a following item: “Recommendations for the way forward”. That was what Ms Mazibuko was dealing with at the moment. He believed that he had clarified the terms of reference.
Mr L Landers (ANC) asked where this should be considered.
The Chairperson noted that he would give Ms Mazibuko the chance to proceed. He suggested that item 5 should be changed to “recommendations on the way forward” as Ms Mazibuko had been doing. The Committee was essentially finished with the first three items, unless there was another matter that Members wanted to raise.
Mr Manamela said he still wanted to speak to the terms of reference. He said that Ms Mazibuko’s statements appeared to be assuming that multiple submissions could be raised in one document. He asked if “submissions” meant “all documents” as it was important to clarify exactly what documents were referred to.
The Chairperson said that to be fair, the key matter was the terms of reference. He had made a ruling on the terms of reference, that the Committee would be considering the President’s response to the PP report and supporting documents.
Ms Mazibuko said that the reason she had put this proposal was to open the floor for discussion. She would have no problem if Mr Manamela wanted to finalise the discussion on the terms of reference first.
The Chairperson asked her to continue with her point.
Mr Singh interjected to ask for copies of the submission, which were being circulated.
Ms Mazibuko continued from page 2. In the respectful submission of the DA, at the very least the author of the Prestige project investigation report (security ministers) and the PP should explain the nature of the “anomaly” and “stark differences” referred to by the President.
In his letter to the Speaker, the President said that he had written to the SIU requesting a provisional report, which he was assured would be to hand. There was an inference that the SIU report would be available and was told that it would be to hand "shortly". Given that his letter was dated 2 April and it was now 28 April, she believed that this Committee would be entitled to enquire of the SIU as to the status of the report and whether a provisional report was yet available, in which case it should be provided to the Committee.
She added that the SIU was only one of the institutions involved. The Department of Defence and the SAPS and /or Minister Mthethwa, should be asked to respond on the national key points. The National Intelligence Agency (NIA) would need to respond on the scope of the security analysis. There were other subcontractors, including the President’s own architect, and there were allegations also of involvement of the Industrial Development Corporation (IDC) in relation to one contractor.
She noted that Parliament was aware that the Department of Defence had convened a board of inquiry to investigate the involvement of the SANDF, particularly in relation to Military Health Services about the health facility. It could very well be that other inquiries were also convened. It seemed appropriate to ask these departments whether any other investigations were under way. In order to complete its mandate the Committee should enquire into allegations of collusion on the part of contractors or subcontractors, in relation to prices. The PP’s report had found widespread non compliance with the Supply Chain Management policy.
She therefore suggested, in summary, that the following should be called in to give evidence:
- the Public Protector
- the authors of the Security Cluster Report
- the Ministers of Police and Defence, alternatively the National Commissioner of SAPS and Chief of the SANDF
- the Head of the SIU, on matters that the SIU was investigating
- CASAC and other relevant organisations, entities or corporations could be asked to give input.
Ms Mazibuko finally expressed confidence that the other members of this Committee were keen to do justice to the mandate conferred by the Speaker and would accede to her proposal.
Mr C Burgess (ANC) wanted some clarity. He asked what sort of timeframe Ms Mazibuko believed was needed to follow this process.
Ms Mazibuko responded that she had considered that point, and the limited time that the Committee had had at its proposal, and reminded Members that the DA had already sent a request to the Speaker for an extension of time within which this Committee must report. The Members had discussed that point at the last meeting on 24 April and had come to the conclusion that this Committee, having consideration to the amount of work that it had to do, would be able to decide that point. She believed that there was no reason; if the Committee was to sit diligently all day and all week (with a possible extension) that this work could not be completed by closure of the Fourth Parliament at midnight on 6 May.
Ms Dlakude said that she agreed with the point that other reports, not only the President's response, should be made available to the Committee, but she noted that some of the reports were not available. She had not seen the SIU report nor the inter-Ministerial report. The SIU had not finalised its report and it was therefore not proper for this Committee to do work on the matter that it was simultaneously investigating. She said that the Committee needed certain facts, yet did not have them, and that time was against the Committee.
Mr J Sibanyoni (ANC, Alt) referred to page 2, paragraph 2 of the proposal from Ms Mazibuko and said, in relation to the inquiry by the SIU, that it was an independent body and it was perhaps not correct for this Committee to start dictating terms as to when it should finish its investigations.
Mr Singh thanked Ms Mazibuko for this proposal. He agreed that the objectives outlined in terms of who needed to be called, were desirable as the Committee needed to have the relevant people appear, so that Parliament could be satisfied on points raised. However, the "uncomfortable question" was whether this was achievable in the time available. He pointed out that calling in the Public Protector and others was not merely a question of making one phone call, and whilst supporting the proposal on who needed to be called, he urged that Members had to be practical and realistic about where they found themselves.
Mr Swart wanted to respond on Ms Dlakude’s point about the availability of reports. The inter-Ministerial report was published in the ATC, was thus available to Members, and Members should have read it. This was a matter of national interest; the public was watching and the MPs needed to fulfil their constitutional mandate to look very carefully at this matter. He thanked Ms Mazibuko for her document and said the ACDP would support the calling of these persons, as this would ventilate the issues. He wanted to note that the SIU was at heart of the matter. The President said that he was intending to give full consideration on receipt of the SIU report. MPs did not have to accept that; but surely, if they did, then this Committee must, as a first step, find out how far the SIU was and what steps it had taken to address the issues. Parliament could insist that it wanted the full President’s response now. However, he did believe that it was necessary to address the SIU. It had power, in terms of its Act, to immediately institute action. This Committee, as part of Parliament, could ask the SIU to appear before it. This was something that the Portfolio Committee on Justice did, and similarly there was nothing preventing this Committee from asking the SIU to appear. He did believe that the lifespan of this Committee should be extended and it was possible to get the parties to a hearing.
Dr Mulder said that the issue had been discussed on Thursday 22 April, when it was suggested that the Committee could not meet on the Friday or over the weekend because MPs needed the chance to study the documents. He had accepted that point but had at the same time asked whether they would be prepared to lend their support to a request to extend the deadline. The response then was that this could only be one once the Committee knew how much work it had. Since the Committee now did know how much work it had, and there was evidence before the committee, there did not appear to be any reason why the Committee should not ask for an extension; the Speaker had indicated that this was something that the Committee would have to decide.
Mr Landers thought that Mr Singh had put his finger on the real issues – namely, whether, practically, there was enough time to do what the Speaker requested. In the previous week, Ms Mazibuko had said that the process could not be rushed, but this in fact seemed to be what was happening; he believed that even to suggest that this Committee must come to a conclusion before 5 May would result in a rushed process. Ms Mazibuko had referred to the submission made by CASAC, and credit should be given to it for making this submission, but given the court rulings on the involvement of civil society, he questioned if the Committee would be acting fairly and justly if it were to restrict those submissions to CASAC, or whether it should not consider putting out an advertisement calling for more submissions. He feared that if the Committee did not do so, some bodies may well complain that they wished to make a submission but were not afforded the opportunity to do so. He left that as a point for Members to consider.
Mr Landers said that the submissions made today by Ms Mazibuko essentially seemed to be asking the ad hoc Committee to conduct a new inquiry. Many people had warned Parliament, in the past, of the importance to be attached to the work of the PP, and how it should be dealt with, and had said that Parliament should not be taking these reports and interrogating them anew. The Office of the Public Protector was independent. What was contained in Ms Mazibuko’s letter, however, amounted to a suggestion to interrogate that report. The PP had already done an inquiry. The SIU, as pointed out by Mr Sibanyoni, was in the midst of another investigation. He agreed that it would be possible for the Chairperson to contact Mr Soni, Head of the SIU, and enquire how far the SIU was with the investigation, but he made the point that to invite Mr Soni to Parliament might be wasting valuable time that the SIU could be spending on the investigation, and he would not support that. However, even if the Chairperson were to contact Mr Soni, he doubted that Mr Soni would be able to give an accurate date for conclusion of the investigation. Ms Mazibuko suggested that it would be possible to conclude the matter by 5 May. Looking at the list of people she had listed, he begged to differ, based on his experience in Parliament. Mr Singh had raised concerns because he shared the same experiences. It was not correct that within half an hour or so the answers would be gained. It was far more complex and complicated.
Mr Landers added that Ms Mazibuko had also referred to an initiative started by the Department of Defence, convening a board of inquiry. That was an initiative that had come to the Committee’s attention by the media, but the Committee was not aware whether other departments and entities had conducted similar processes.
A further problem facing this Committee was that next Wednesday the country would be in an election. As much as Members may want to wish it away, that was the reality. He said that the Committee would not be able to finish the work before Election Day.
Mr Selfe wanted to respond directly to Mr Landers. He agreed that it was a good idea to require public participation, but pointed out that most of the court judgments related to legislation and the need for public participation in that process, whereas this was a slightly different matter. However, the real nub of the argument was that it was not possible for Parliament to interrogate the report of the PP, being an independent institution, and the report Parliament would be publishing was the end of the road, essentially. There were, however, two reasons why he felt that the Public Protector, at the very least, should be invited to give evidence to the Committee.
Firstly, the PP herself admitted that there were a number of unanswered questions, on which she was unable to get clarity, and she should be given an opportunity by this Committee to articulate what these were, and what the Committee would have to do to get clarity. The second matter was referred to by the President himself, in his letter to the Speaker, referring to “stark differences” in respect of the report of the PP on one hand and the inter-Ministerial committee on the other. If this Committee was to find out what was actually going on, it seemed that both the PP and authors of that inter-Ministerial committee report must give evidence to highlight what the President was saying were the differences. Without this, the Committee would not know what route to follow.
Finally Mr Selfe made the point that he had heard many objections to Ms Mazibuko’s proposals why this could not be done in the time allocated to the Committee. It would help if the majority party would put its proposal on the table, was this would allow the Committee, rather than merely debating what was wrong with her proposal, then to deliberate on two proposals.
Dr Muller said he would not support the calling of evidence for the Committee to reopen the process. It was not for Parliament to do the job of the PP. However, he would support calling of evidence to get clarity on certain anomalies, without reopening those discussions. His problem was slightly different. There was a constitutional problem. The PP acted within her scope, and in her report there were three phrases repeated several times: namely “improper conduct”, “maladministration” and “unlawful”.
He stressed that Members must look at the role of the NA, from a constitutional point of view, which was to ensure that there was oversight over the executive and ensure that matters were done correctly. Already on the table were the President’s letter, the Proclamation and the PP report. He did not believe it was necessary to wait for the SIU’s further input at this point, the confirmation of the referral was enough. The Committee should look at these, and play its role as the legislative arm of government. He would like to hear the ANC’s proposals for moving forward, and then Members could argue the points.
The Chairperson asked Ms Mazibuko to clarify on what terms of reference she had based her letter, which was dated 28 April; whether they were the terms of reference that were under consideration and had been questioned at the meeting of 24 April or those that he had clarified in the meeting this morning.
Ms Mazibuko said that she had drafted this letter based on the terms of reference given by the Speaker in the ATC on 9 April. In her view, there was nothing preventing this proposal from speaking to those terms of reference, which were discussed by this Committee, even if the Chairperson took the view (which she did not share) that the President’s response was somehow central and the other documents were peripheral. These needed to be studied as well, particularly the reference to the SIU and the PP report.
The Chairperson asked her to agree that he had clarified the terms of reference in the meeting that morning.
Dr Mulder wanted to raise a point of order why it was necessary. He asked if there was a suggestion that the ATC, reflecting the instructions from the Speaker, was actually wrong, and that Members should ignore the ATC and accept a different report.
The Chairperson said that the Committee was here to look at the response from the President and attached to that were the other documents to which reference was made, because otherwise the Committee would not be in a position to understand how the President had arrived at the response. The documents were accepted as being relevant to considering the context of his response.
Ms Mazibuko said she wanted to raise a point of order. The question asked by the Speaker seemed to imply that there was a different between what was in the ATC and she questioned if the Chairperson was giving the Committee different terms of reference, and, if so, why. The initial view was that the Chairperson would be clarifying the terms of reference as they appeared in the ATC.
The Chairperson responded that he thought that he had been quite clear, and his statement had been confirmed by the Secretary to the NA. The Committee was dealing with the President’s response, and there would be reference to the other documents. The Committee must stick to its mandate. His initial query, which was why he had raised his point, was that Ms Mazibuko herself appeared to have determined what the terms of reference were, and he wanted to know if this was the original terms, or those yet to be clarified. The Committee must be cognisant of what the Speaker had clarified that this Committee must do. Some input in this meeting suggested that the Committee was to do an inquiry. That was not the terms of reference. The Speaker would have been clear on this point, if that was what he had wanted.
Mr Manamela said he had asked earlier questions because the Speaker had referred to three “documents” (not “submissions”) on the ATC. The Committee had, however, been asked to consider “submissions”. His argument was that the President had actually made the “submissions” in one letter to the Speaker, but had referred to the PP’s report and the proclamation. The reference to the letter was merely for ease of reference and the Committee had to look into the response by the President and then, having done so, determine the way forward, and what must be done. It was important to understand that. It would help the Committee determine what it had to do and whether it had the time and resources to do so. He requested that the ANC be given the opportunity to caucus at this point, and then develop a response to the proposals. He had understood that Ms Mazibuko’s proposals were based on the understanding of what the terms of reference were when the matter was being discussed last week.
Mr Landers wanted to respond to points raised by Mr Selfe. It was true that the court judgments referred to legislation. He referred to the third paragraph of Ms Mazibuko’s letter, where she noted that other bodies may have submitted or wish to give evidence, and she had suggested that they be given the opportunity to testify. However, he asked how this Committee would determine that without putting out an advertisement for written submissions.
Ms Mazibuko said that in the previous week, the Committee had made the decision that if any body had made written submissions they would be distributed, and if there were any others in addition to CASAC, they may be given the opportunity to respond.
Ms Mazibuko clarified that she had not in fact obtained the information about the inquiry at the Department of Defence from the media; instead it came to light during answers to questions in the House by Mr David Maynier.
Ms Mazibuko referred the Members of the majority party to the inputs made as to whether there was sufficient time. It was important to remember why the Committee found itself in this situation, for it did not arise from nowhere. The three weeks that the Speaker had allowed for the ad hoc committee had been reduced because the majority party took two weeks to inform the Speaker of its decision on nomination of members to serve on the Committee. She thought that the ANC would have been willing to make a concession on that point.
Ms Dlakude said that the ANC was quite within its rights to take its time, and did not need to be reminded of this. The names were submitted before the deadlines.
The Chairperson thanked her and said that this point was also clarified in the meeting on 24 April
Ms Mazibuko continued that she wanted to make a last point – that she was not suggesting a new inquiry, and she had not once made reference to an inquiry or proposed that one be conducted, although that was certainly a recommendation that could be made by this Committee. In the normal course, where any other Parliamentary committee was faced with a report that had gaps it would normally invite the authors to speak to any problems in the report. This Committee should give the authors a similar opportunity, in order to make a proper set of recommendations.
Mr Burgess said that this was a serious matter, and the ANC regarded it as such. He would not like the media to suggest that the ANC was trying to delay the matter. In all avenues, departments and jurisdictions of the ANC, it was accepted that the matter was serious. Members were trying to establish what they could do to effectively and efficiently do justice to the matter. It was not correct that the ANC was trying to delay.
His understanding was that the President had responded that what he had given was a provisional response, in the sense that he had not been able to respond as fully as he would have liked, and that he would be responding in a more appropriate and fuller manner later. That must be borne in mind, no matter what was said about the terms of reference.
Mr Burgess wanted the staff and legal advisers to give clarity on another point – namely, what would happen if this Committee were to embark upon “this adventurous agenda” as suggested by Ms Mazibuko, inviting a range of people, but then run out of time, even if it had applied for an extension of time after 30 April. He made the point that even if the Committee were extended, and were to run through to 5 May (bearing in mind that Members would have to return to their constituencies on 6 May) then he wanted MPs to consider what, realistically speaking, were the chances that this Committee would finish the work that it was suggested it must do.
Dr James wanted to raise points around time and practicality. It was up to Members firstly to make proper judgments about the scope of work. Without being too overdramatic about it, their responsibility as responsible Members of Parliament was to decide upon its tasks. There was a proposal to invite the PP, amongst others, although she was, in his view, the most important, because certain matters in her report required clarification. The first thing to do was to decide on the work and then calculate the time needed to do the work properly.
Mt Landers said that he had a particular view about everything being discussed here. That was actually supported by the submission of CASAC, on page 4, which said that the time limits provide for the Committee were extremely short, bearing in mind the complexity and length of the report. CASAC said that this could be a challenge to the ad hoc Committee and place a question mark over its findings. Mr Burgess’ point about what would happen if the Committee did not complete its work by 5 May was quite apt, and the Members had to factor in the elections, like them or not. He said that after caucusing, the ANC would be presenting proposals, which it hoped would persuade the Members on the correct way forward. The ANC was not suggesting that the matter be delayed, pushed under the carpet, or be buried, but Members had to bear in mind that in order to do justice to the assignment, sufficient time was needed, and that was something that the Committee did not have.
Ms F Muthambi (ANC) wanted to draw attention to what the Constitution said about the function of the Public Protector, and the power to take appropriate action. The President had responded to the Speaker within the time frames. Others had also complied with their responsibilities. In relation to Ms Mazibuko’s suggestion she said that it did seem appropriate that the Committee could enquire as to the status of the SIU investigations. She wanted to ask for clarity and whether perhaps there was not an overstatement of the functions of the Committee, as set out in Rule 201 (b) to (e). The terms of reference seemed to be quite clear.
Ms Moloi-Moropa noted that Mr Landers had referred to the CASAC submission, which showed that the submissions were taken seriously. She was not sure who else might have the intention or desire to contribute to the work of this Committee. The ANC certainly did intend to engage with the issues, but wanted to consider what would be possible, and what would not. It would be interesting for this Committee to interrogate why different entities had reached different conclusions, but she was not sure whether there was presently space and time to do that. She supported the request for the ANC to caucus and consider the proposals of Ms Mazibuko.
Dr Mulder said that he thought there was progress, in the sense that the Committee had agreed on how serious the matter was. It was possible to argue it. He did not see the reports being referred to being on the same level. Ms Moloi Moropa had asked how different conclusions could be reached. He pointed out that the PP report emanated from a Chapter 9 institution – whereas the others originated from the Executive. Parties clearly agreed on how serious this matter was. This Committee represented Parliament – the legislative arm and section 55 of the Constitution was very clear. Parliament was supposed to ensure that all executive organs of state were accountable. He thus appealed to the ANC to take into consideration the time frame, the seriousness of the matter and the seriousness of the Constitutional provisions and the message that Parliament wanted to put out – now and in the future - to hold the Executive to account.
The Chairperson said that numerous members had made reference to CASAC. Every submission was taken seriously and Parliament would provide the opportunity to make input into processes. Most of the public participation indeed did centre around legislation but it was not exclusive to that, but went further. That was why a fair opportunity must be offered to everyone in Parliament. He referred to the question by Mr Burgess as to what would happen if the Speaker did agree to extent the time frame, assuming that the terms of reference that Ms Mazibuko had based her document upon were confirmed, but Parliament was unable to complete the task.
The Secretary to Parliament referred to Rule 214(6) which stated that the Committee would end when it had finished a task and finalised and submitted the report. However, where a committee had not finished the task assigned to it by the end of the Parliament, all noting and other business would lapse when the Committee ended (at midnight on 6 April, when Parliament ended). However, there was provision in the Rules for the following Parliament to resuscitate a matter, but it would need to decide when.
The Chairperson asked Members to break for 45 minutes to allow the ANC to caucus.
On resumption of the meeting, he asked if the ANC was ready to respond.
Mr Manamela said that there had been discussion earlier on the position of COPE. He noted that reports had recently been received that 23 of the 36 COPE MPs had defected to other parties.
Mr Swart quipped that this was the reason he should have been appointed, because he was not going to defect.
Mr Manamela said that the ANC was proud of the role that Parliament played in defending the Constitution and ensuring that it used its role as a legislative and oversight body to put into place and uphold laws that would protect the democracy, particularly the Constitution. In any other country, if any other structure dared to question authority, it was quite possible that authoritarian regimes could close them down, and the questioners would disappear, only to “turn up later in a body bag”. However, in South Africa, institutions such as the courts had been given the time and space to be able to execute responsibilities and powers accorded by the Constitution. The very fact that the President had been subjected to such investigations without any negative impact to individuals was an indication of democracy.
However it was also important to note that if the President was ordered by any investigative body or institution set up by the Constitution to respond, he should do so within the given time.
The ANC wanted to stress several points, namely:
- that it took this matter quite seriously.
- it had no doubt that findings by the Office of the Public Protector or by any other institution set up by the Constitution should not be taken lightly. This was an important matter.
- More importantly, however, the responsibility given by Parliament to the ad hoc committee to interrogate how sufficient the response was, was quite critical. The Committee would not take its role lightly.
- The ANC agreed with the various political parties that in executing its role, time would be of the essence. However, they did not think that the time allocated to the ad hoc committee was sufficient to explore all the matters that the Members were requesting should be explored.
- It must be emphasised, once again, that this was election period. That meant that there was a danger that the parties might try to influence voters by the tasks in hand. People could well begin to play to the gallery and try to gain votes from the tasks set for this Committee.
- The mandate, as set out in the clarification, ended on midnight 30 April.
- Already from tomorrow, South Africans abroad would be starting to vote.
- The ANC believed that it needed to be rational, apply its mind and if, for instance, it were to decide that people needed to be invited to make representations before the Committee, they should be given sufficient time.
- It was noted that there were, for instance, questions that, in order to fulfil the mandate, Members had to ask of the PP, including why the investigations were not concluded, and why she, in the view of the ANC, may have exceeded her power and authority. One of the questions to be put to her was why in this case, she had said that she was willing to come to Parliament, yet in others she had said that she had not come to Parliament because of previous interactions. The questions would not be put to open up new investigations, but also to reach clarity on specific points.
- The ANC believed that there were also questions that needed to be asked of the Security Cluster and inter-Ministerial Task Team on their investigations and findings, and what action had been taken. For instance, the Department of Public Works must be asked what it had done, and what action had been taken against officials in that department, pursuant to the reports.
For these reasons, it was the view of the ANC that probably the time given for the Committee’s work should be extended. That meant, for practical purposes, that it would have to go beyond the term of this Parliament, which was impossible. Therefore, it would wish to ask the Fifth Parliament to look into the whole matter.
The Chairperson said that the DA had made a proposal earlier, as read out by Ms Mazibuko. He asked for the ANC's position on that.
Mr Manamela said that the ANC did not agree with the proposal made by the DA. It believed that if Members were to follow the route suggested, this would take the Committee beyond 6 May, the date on which this Parliament ended. For this reason, the ANC was not willing to engage with the suggestion. The PP’s report would not “disappear” but would remain and could still be taken into consideration by the Fifth Parliament. The same went for the SIU investigation and any other reports, such as that of the inter-Ministerial committee. Were this Committee to ask interested parties to make submissions, this would obviously impact on the time. The ANC believed that it must deal with the matter thoroughly and thus did not agree with the DA that the Committee should try, within the term of this Parliament, to complete the task.
Mr Swart thanked the ANC for its response. He found the reference to "body bags" was strange, but perhaps it needed to be put in context. The Public Protector had said that she had felt threatened, although not by any one political party and that should be noted. He asked what exactly the ANC was now suggesting, and would like more detail so that parties might debate how they might be able to accommodate both positions. Mr Swart said that earlier on, Mr Landers had referred to the possibility that the Chairperson write to the SIU and he believed that this was the nub of the matter. The President said that he was awaiting the full SIU report in order to give a complete response. Whilst he could not dictate to Parliament, Parliament could deal with the SIU separately.
Dr Mulder said that he had understood that the ANC, after caucusing, was going to be making suggestions on the future process. He summarised that the ANC had said that it regarded the matter as serious, that the role of this Committee must also be taken seriously, and yet it was suggesting that despite this, there was no time to deal with it. Nobody had actually asked that the Committee sit beyond 6 May, because this was not possible. He had been hearing discussion since the previous Thursday as to why work could not be done, because there was no time. He asked if the ANC was saying that although the matters were of prime importance, yet there was no time to do anything.
Mr Selfe shared many of the frustrations of Dr Mulder, because it seemed on the one hand that the ANC was stressing the importance of the matter, yet on the other proffering excuses for why it was impossible to attend to the important matters. He thought that if there was the political will to do what needed to be done, matters would be done. He simply did not think, however, that there was indeed the political will to grapple with the issues. He too wanted to get an indication of what exactly the ANC was proposing. He asked if it was, for instance, proposing that the Committee immediately adjourn and then wait for better days. He asked, in the event that the Committee did adjourn now, what guarantees there would be that the Fifth Parliament would deal with the matter. There may be a different Speaker, different parties and even perhaps a different government. Were the Committee to agree to this, there was a risk that the matter would simply “go away”. He thought that when this Committee produced a final report (which presumably it would have to do to discharge its mandate) then that report would need to specify, very clearly, a way forward, and to insist that the investigations should definitely continue in the Fifth Parliament, hopefully on a much clearer set of terms of reference than provided now.
Ms Mazibuko said it was very important to be clear about her proposal. It was not a proposal that Parliament re-investigate the matter. There was a fundamental difference between the various bodies that had investigated the matter, the SIU, the Public Protector and the inter-Ministerial Committee. Any investigation that Parliament conducted may or may not have consequences. The other investigations may similarly have certain consequences for the people being investigated. There was no doubt in her mind, dealing with the need for further time and space, that there was a good case for Parliament to conduct its own investigation, under the auspices of the body that had authority over the President and Cabinet. However, that was clearly not the task given now by the Speaker; instead Parliament had been enjoined to consider the three documents and make recommendations to the NA. Those would have consequences because, of all the bodies, Parliament was the only one with the authority to mete out consequences. She believed these comments by the ANC were efforts to delay and frustrate. She took a dim view of this, but still believed that this Committee could make a firm recommendation to form a committee to actually investigate this matter, and come up with an outcome for executive accountability.
Ms Mazibuko said that Mr Manamela, in putting the position of the ANC, had made reference to certain people he would like to hear from, but made excuses about shortage of time. It was true that time was a hindering factor, and she had expressed the reasons why, which was unpalatable, but was a fact. Given that the majority party seemed “desperately unwilling” to take it up, there may be scope to solve this and that the Fifth Parliament may take up an investigation in earnest. However, even that would have to be based on fact. The MPs had to be seized with the mandate. She still believed that there was scope for further work to be done in this Parliament. She reiterated the request for a clear position from the ANC for the way forward, bearing in mind that Parliament had oversight over the President and Cabinet, and also bearing in mind that it had as much power to investigate as did these other bodies.
Mr Singh said that he would like to see a clear position from the Committee, as opposed to a political party position. The Members here had been chosen to represent their parties in a very serious manner. He did not believe that the letter from the President responding to the PP Report was sufficient for this Committee to continue its work. The President must surely have been “aware of things taking place in his back yard, could not and should not “shy away from the responsibility” and should have questioned matters at the time.
He noted that the SIU investigation related to financial matters and were directed at the Department of public Works. The PP’s report, on the other hand, dealt with findings against the executive, including the President. There was a need to interrogate everything, to his mind. In order for that to happen, the role , players must be invited before a committee of Parliament.
Mr Singh said that he would be prepared to support a resolution taken by Members of this Committee, showing the necessary resolve and political will to bring the request before the Speaker, that this Committee should continue with its work in the next Parliament. He added that this did not mean that there would necessarily be the same individuals, but the new Committee should continue to investigate the PP’s report, and the SIU report, call in all relevant persons before it. This, he suggested, would help to allay fears and doubts in the mind of the South African public that Parliament was not taking its work seriously.
As far as electioneering was concerned, Mr Singh said that the public must decide for itself, come 7 May, how it read the events in this Committee. He believed that the work must be done, but did not believe that there was sufficient time to do justice to it. He pleaded for collective resolve by leaders of all parties to resuscitate the Committee with vigour in the next Parliament.
The Chairperson wanted to reiterate that the institution of Parliament would continue after elections, whatever the outcome. As the Secretary to the NA had indicated, any work done by this Parliament or a committee, that was unfinished, would lapse at midnight on 6 May and that must be borne in mind when making proposals. He also asked that Mr Manamela must explain his remark about the “body bags”.
Mr Manamela said that the statement was made in the context that in many countries that were so-called democracies, questions may be asked of those in power. Those asking the unpopular questions would then “disappear” but be found later, dead. He was not referring to any particular person, but a possible trend that fortunately did not apply in South Africa.
Mr Manamela wanted to clarify the timing on this matter. The enquiry had commenced in 2011. The ANC, (not the ANC Caucus), had been asking the PP for some time to ensure that her report would be issued in good time for the Fourth Parliament to deal with it. However in fact her report was not issued earlier, and this had led to a perception by the ANC that the delay in releasing the report was politically motivated. The fact that the PP’s report was released only late last month could not be ignored, and should not be a responsibility that was to be shifted to Parliament.
Mr Manamela thanked the Chairperson for emphasizing that indeed Parliament would continue to exist and that the Fifth Parliament would be able to determine how it wanted to deal with this issue. This Committee could recommend to the Fifth Parliament that it should call the SIU and call the Office of the Public Protector, although it would ultimately be up to the new body, after 7 May, to determine how it should deal with matters. It was important that, firstly, the PP’s report could not be ignored. It was obviously not in the interests of the ANC that a person nominated and elected as President of South Africa be implicated. He wanted to make that point categorically. The SIU process was still under way. The President had said that, on conclusion of that, a fuller report would be made by him to Parliament. Because of that process it was impossible for the ANC to “wish this matter away”. The ANC wanted the investigations to continue, because it wanted its own answers. However, it did not believe that practically speaking, there was enough time now. The view of the ANC on this point was also supported, for instance, by CASAC who had suggested that proceeding now would be “expecting the impossible from the Committee.
He noted that Mr Singh had insisted that the President must still appear (whether or not he was still President after the elections). On this point, he said that the ANC wanted to institute investigations, but from a practical stance it did not believe that there sufficient time. CASAC, supporting this viewpoint, had suggested that to require this Committee to finalise its work by 30 April would be “expecting the impossible” from the Committee. Mr Singh insisted that the President must still appear (whether he would still be President was another matter). The ANC would want input from people if that would have a positive impact on the committee’s work.
In relation to the point made that any work done by this Committee after 6 May would lapse, he said that two points could be made. If the work was done but would not actually be of value to the Fifth Parliament then it would appear that it was done purely for politicking and electioneering purposes. If it would not actually achieve anything because it could not be finished, it would be meaningless and he did not believe that there was any point in starting something that was doomed to go nowhere. That would effectively happen, and he believed that it would be far more effective to leave it to the Fifth Parliament to deal with the matter properly. He wanted to state that there was indeed political will to ensure that this matter was put to rest, but he was of the view that the responsibility must be given to the Fifth Parliament.
Ms Dlakude thanked the Chairperson for stressing that Parliament would still exist after 7 May, and there would be Members from all parties who would be equal to the task. She thanked Mr Singh for using his brains, not his emotions. South Africa wanted justice and needed to do the work. She asked why there was such a rush. She then formally moved a motion on behalf of the ANC. This noted that the Committee had carefully considered the terms of reference setting up the ad hoc Committee, the Report of the PP, the Proclamation and the referral letter by the President to the Speaker, the Speaker’s clarification on the terms of reference, had discussed the matter on 24 and 28 April, including the time frames within which it was expected to complete the work. The ANC noted that the term of the Fourth Parliament expired in a few days. The time available for the Committee to complete its work was, in its view, clearly insufficient. Related investigations were as yet incomplete. The ANC felt that the ad hoc committee was of importance and it believed that it needed sufficient time to consider it thoroughly. For this reason the ANC formally proposed that the matter should be referred to the Fifth Parliament for its consideration.
The Chairperson said that before he would entertain a vote on that motion, he wished to recognise some Members’ comments.
Dr Mulder said that he had raised his hand to propose that the motion not be seconded. He had heard it, but was, frankly, not convinced at all. The ANC had stressed how seriously it regarded the matter. The ANC had expressed its disappointment that the PP had taken so long to release her report. However, he wanted to make the point strongly that this was because the President had taken about nine months to respond to her queries, and then did not answer about 18 questions, so the main source of the delay was in fact the President.
He said that Mr Singh was quite correct that the President would still be answering the questions; even if he was no longer President he would clearly have to come to Parliament, because the spending of R246 million on his property had to be investigated.
Dr Mulder was pleased to hear that the ANC wanted justice, but said that to be honest, the ANC did not want to see it before 7 May. There was no way that this ad hoc Committee could bind the Fifth Parliament, which would take its own decision altogether. Essentially, he wanted to reiterate that this matter was serious and had to be discussed now. He thought that the Committee would be failing in its duty if it failed to do so. He heard that the ANC had acted within the Rules, taking eight out of the ten days to nominate its members to this Committee, but with all due respect it must be remembered that the other parties had all nominated their Members by the following day, so it was due to the ANC that the matter lagged on for another eight days. Last Thursday, Members had held a long discussion. Today, the ANC asserted that there was not sufficient time so essentially the ANC wanted this Committee to do nothing. The ANC may wish to use its majority to push through that decision. However, he was adamant that the opposition parties that he represented would not be party to such motion, as they believed that to do nothing would be failing in their duty.
Mr Swart also noted that the main reasons for the delays in the PP report were occasioned by the President’s delay in failing to respond until nine months had lapsed, and there were still several questions outstanding even now. He believed that there was enough time, in fact several days, to attend to at least some of the work facing the Committee. It could, for instance, at least find out what the SIU was doing. He implored the ANC to consider what it could do now, especially in view of its assertion that it had taken the matter “quite seriously” – although he would have thought that “very seriously” would have been a better indicator. He appreciated the sentiments expressed about the practical implications of calling people in, but there were some aspects that the Committee would at least be able to clarify, if it were taking matters seriously enough.
Ms Mazibuko wanted to suggest that this was “a pretty shameful state of affairs”. The ANC said it did not have time, yet failed to define what the work entailed. The DA said that it wanted to get inputs, not a series of investigations, to enable the Committee to make recommendations to the NA. Whether or not those would bind the NA was not for this Committee to decide. The Speaker had given Members a task. If she heard the ANC position correctly the ANC was suggesting that there was not time to even consider the reports – so although they claimed to take the work seriously, they did not have time to deal with it. She reiterated that she had yet to hear a definition from the ANC of what “the work” was. Whatever work was done should result in the outcome of a recommendation. However, this recommendation of the ANC spoke to not work but a predetermined decision to shut the Committee down as soon as possible, after delaying it as long as possible. It was actually saying that this Committee must do no work.
Ms Mazibuko found it “contemptible” for the ANC to suggest that the PP had some kind of political motive for taking so long to table the report. If the ANC Members had read that report thoroughly they would know that the President and the Security Cluster were the bodies who had subjected the Office of the Public Protector to delays. If the PP had been able to work to her timetable it was likely that the Parliament would have been able to deal with the matter already in 2013, not even earlier this year. It was also reprehensible that a Member of this Parliament would make an accusation, on the record, about the political bias of a person that Parliament had appointed to protect the public interest.
She was still awaiting a proposal for what work it was that the ANC wanted this Committee to do. If it was suggesting that it wanted this Parliament to do nothing, it must read that into the record.
Ms Mazibuko wanted to point out, further, that ad hoc committees did not form themselves but were called by the Speaker. The Members could not know for certain that the new Speaker would give terms of reference to a new Committee. She believed that this proposal was “kicking for touch”, was not a recommendation but was in fact dodging past the responsibility of these Members. To sit in this Committee and speak of electioneering was implying that this was more important than holding the Executive accountable.
Mr Singh said he valued the contribution of Mr Swart, who had said that there were some things that the Committee could still do. He asked that Mr Swart make more suggestions as to what could be done, to add value to achieving the mandate.
Mr Burgess said that even the most conservative commentators, and some who in the past had been quite indiscriminate in the manner they attacked the ruling party, had agreed that this Committee was already “playing in injury time". Where, then, did this put the ANC? If it attempted to, but failed to finish work on which commentators had already warned there was not enough time, it would be criticised. If it did nothing, it would also be criticised. The ANC had not done “nothing” – it had looked very seriously into the matter. He took issue with Ms Mazibuko’s statement that the situation was “shameful”, suggested that she should not use “nasty words” and asked her to apologise. The ANC was trying to act in a responsible way, and it seemed that Mr Singh had some understanding of that. Any reasonable people could come to the same conclusion as the ANC. It was irrelevant at this point whether the President or the ANC had caused delays. It was necessary to focus on what to do and how to act responsibly. He agreed that it would be good to ask the PP to speak to the Committee, and to be able to question her, but the question was whether following that route now would be responsible behaviour by this Committee. He stressed that the ANC wanted to act responsibly. He reiterated that using a term such as “shameful” was “not nice” and he thought Ms Mazibuko should withdraw her statement.
Dr James said that it was impossible to extend this work without the permission of the Speaker. The impression that the ANC was trying to create was that its Members had exercised their minds, but he was not yet convinced that this was done. He believed their minds were, instead, exercised for them by Luthuli House. He believed that the ANC was trying to shut the Committee down, shielding the President from scrutiny by Parliament. He believed that it was entirely possible to extend the date, and calibrate the work according to the timetable available. Finally, he answered Mr Burgess by expressing his own sentiment that “shameful” was a light word, and what was happening here was in fact “scandalous”.
The Chairperson said that Ms Mazibuko had referred to an “investigation” and he wanted to reiterate that this not an “investigation”. He pointed out to Dr James that any extension of the Committee by the Speaker would be driven by the decision of this Committee. He had now given opposition Members the opportunity to speak to the motion of Ms Dlakude.
Mr Swart noted that Mr Singh had asked for a response from him.
The Chairperson responded that he would ask Mr Swart to respond when it was appropriate.
Mr Manamela noted the accusation of Dr James that the ANC Members got their mandate from Luthuli House. He was an MP, voted for on a list of the ANC. He said that he was not here representing any person or relative, but the ANC, and he was not ashamed to say so. He was elected on a party list, and that was indeed where he got his mandate.
Mr Manamela said that if the ANC really wanted to shut down the work of this Committee altogether, it would be easy to say that there was already a response from the President – that he would be waiting for the full report of the SIU – and that this should be the report of the Committee to Parliament. However, the ANC was not saying that. It was agreeing that, over and above the documentation referred to already, there was more work to be done. If the opposition Members had listened properly to the first part of the motion, they would have noted that the ANC had emphasised the amount of work that did need to be done. However, to actually achieve that, even by working 24 hours a day, would be impossible. It was simply not possible to get the President to appear before this Committee before 6 May. Members may have liked to call the PP, but she could not necessarily be expected to be present on the next day. Even with the suggestion that this Committee should continue until 6 May, it was being set up for failure. Those from the Defence Force were quite likely to point out that the matter was still subject to internal investigations. The SIU was likely to say the same. Members would be subjecting themselves to adverse scrutiny and media reporting, if processes were not properly concluded. Rationally speaking, if Members want to do all of the things suggested and hold full investigations, all people were implicated in the PP’s report must come before the Committee, not necessarily as part of an investigation, but to speak to the matters mentioned. He thought that setting up the Committee for failure would be futile. The ANC was instead saying that the Fifth Parliament should take up the matter. This Committee did not want to limit the scope of the Fifth Parliament to consider only the things that were, today, before this Committee.
There was a suggestion that there would be a new Speaker. If the Speaker, who was obliged by Parliamentary Rules, and who is an ANC member, established this ad hoc Committee, this would beg the question why a different Speaker, also an ANC member, would want to shut down this work. The ANC agreed with all the things that the opposition parties suggested should be done, but did not believe that it was reasonable to expect this Parliament to complete that work. For that reason, it was proposing that the work be done by the Fifth Parliament.
Mr Sibanyoni thought it unfortunate and wrong of the opposition to accuse ANC members of trying to shut down the process. Since these members had been elected to the ANC committee, they had been very busy preparing for this, as well as being part of processes in its constituency. They had set aside what they had been doing in their constituencies to come here and take on more work. After the PP’s report was given to members, they studied it. He wanted to emphasise that the lawyers on this Committee would “peruse”, not merely read, because they wanted to do justice to the process. However, having considered everything and applied their minds, they realised that the amount of work was insurmountable and could not be done before 6 May. He asked whether there was any use in starting a process that could not be finalised by the set date, making that work of no value and effect to the Fifth Parliament. ANC Members had been accused of trying to delay the matter. He asked why the opposition was so eager to do something before 6 May, and why it did not agree that this could be done after 7 May, when there would be sufficient time to do justice to the matter. It was wrong to begin a process that would be futile, and he pleaded that the work be done correctly.
Mr Landers said that Mr Sibanyoni had covered the point of 7 May. He thought that it was scandalous to suggest that the new Speaker would not refer this assignment in a befitting manner. If the same Members returned after elections, into the Fifth Parliament, he would remind Ms Mazibuko of her statement and inform the Fifth Parliament of the DA’s views.
The Chairperson called upon Members to stop name-calling. Remarks were being made in the last days of the institution that could show it up in a poor light.
Mr Selfe wanted to react to some of the comments made by Mr Manamela. He noted that he had owned up to the fact that he felt his prime responsibilities were to his party. However, he reminded him that in fact all MPs were mandated with a responsibility to uphold the Constitution, to which all Members took an oath of office, and that trumped anything else. By taking the decision that the ANC proposed, he believed that MPs in the Fourth Parliament would be failing in their constitutional duties. He suggested that the proposal was an attempt to obfuscate and avoid their obligations, and in doing so, the ANC Members were failing in the oath of office they took when becoming MPs.
He noted that many references had been made to how busy the ANC Members were during this election time, but wanted to point out that the opposition parties, by implication, then must be even more busy, because they had less people to do more work. Even so, it was the MPs' job now to attend to this responsibility. He agreed with Dr James that if MPs had the will to do what this Committee needed to do, it was simply a question of considering how much time was available, applying their minds to their duty and working backwards to set dates to achieve what had to be done. It was quite clear to him that there was no political will on the part of the ANC.
In answer to Mr Manamela’s question why the DA did not believe that the work could be postponed to after 7 May, he pointed out that there was no guarantee that the Fifth Parliament would indeed be seize with the matter. He said that there was a saying that all that was needed for evil to prosper was for good people to do nothing. He ventured to suggest that by doing nothing the ANC MPs were evading and ducking their constitutional duties.
Mr Swart said that he still believed that there was space for this Committee to move, and maybe the ANC's motion was premature. At the very least, he suggested that by this time, the SIU report may be available, and this Committee was merely speculating that it was not. A simple phone call to the Head of the SIU might establish that there was an interim report available. The availability of the President and the Public Protector should be established – even if they were asked to give an initial briefing, because of the audi alteram partem rule. He appreciated that there was not time to do everything. There was politicking from both sides – because that was the nature of the election period. However, the constitutional imperative for MPs was to look into the issues. He pointed out that the President said he would reply “on receipt of the SIU report” but for all that the MPs knew, he may already have it. Finally, he pointed out that other committees drew legacy reports, and at the very least, this Committee could show that it was applying its mind to some matters, even if there was no extension granted. In that way, the Fifth Parliament could consider continuing what the Fourth Parliament had started, because it was dealing with a matter of national importance.
Ms Dlakude understood where her opposition colleagues were coming from and said that if she was in the same position, faced with strong colleagues, she may well have acted in a similar way. She said that it was not possible for the Committee to sit here and speculate. It seemed that the DA had a premeditated outcome, which was the reason for its recommendation earlier today, as it had an idea of what it wanted to achieve. The ANC wanted to maintain its motion. The ANC Members did not believe that any purpose would be served by doing something and then leaving it.
Dr Mulder interjected “I don’t believe you”.
The Chairperson called Members to order.
Ms Dlakude said that the ANC position was not a cheap political stunt. It wanted to do justice to the matter. That was why it was stressing that time was against it. The Fifth Parliament would have the relevant committees to deal with the matter and there was no reason why this Committee could not refer the matter to the Fifth Parliament. The DA was trying to force the Committee to call people in, in a rush. The questions may not take two minutes, but a few days. Even analysts were saying that there was a need to be realistic and use time to the best, not be swayed by emotions.
She wanted to go back to the point that the ANC had taken time to nominate its members to this Committee, and did not understand why this was even being raised as an issue. The Rules of Parliament allowed ten days for parties to nominate their members, and there was nothing wrong with the ANC taking its time. It had responded within the time period allowed by the Rules.
The Chairperson said that the ANC motion had not been seconded yet, but he had asked all Members to comment before calling for a seconder.
Mr Burgess wanted to second that motion.
Dr Mulder wanted to move an alternate motion that the Committee immediately continue with its work. That motion was seconded by Mr Selfe.
The Chairperson said that when deciding on the motion, reference would be made to the Constitution.
Mr Manamela wanted to raise an objection to the alternate motion.
The Chairperson said that he could not.
The Chairperson wanted to highlight that issues of constitutionality had been raised. CASAC had made several points. As Chairperson, he had to apply his mind to the matters. The Constitutional Court had repeatedly made it clear that not only must decisions be rational, but so must the processes to reach those decision. Based on the numerous issues put in front of this Committee, it would be virtually impossible for the Fourth Parliament, at the end of deliberations, to arrive at an outcome or a decision, given the time frames under which it was working.
The Chairperson put the first motion to the vote. He recorded votes in favour from six ANC Members and the IFP Member.
Mr Swart quipped that he must check if there was a quorum, as it might be necessary to co-opt him now.
The Chairperson then put the alternate motion and recorded votes in favour from the two DA Members (Dr James, being an alternate, could not vote) and Dr Mulder on behalf of the other opposition parties.
He noted that the motion of the ANC was thus carried.
Mr Selfe asked that the very strong objection of the DA must be noted. This was cynicism on a grand scale.
The Chairperson adjourned the meeting to 5pm, for preparation of the Committee report.
On resumption, the Committee Secretary read out the draft Committee report. This noted the history behind the setting up of the Committee, quoting the relevant Rules, and emphasised that the ad hoc Committee was established for a specific task. It was comprised of 12 members, and the composition was summarised. The names were ATCed on 22 April. It was noted that COPE had not submitted any names. The ad hoc Committee had exercised powers and functions that included determining its own procedures, frequency and time of meetings. On 24 April the ad hoc Committee met to elect the Chairperson and draft a programme. On 28 April it met to consider its work. A proposal by the DA for the future work of the Committee was presented, but not supported. A proposal was also made by the ANC. The content of both proposals was summarised. It was noted that the time of the Fourth Parliament was due to expire, that the time was limited, and that the ANC considered that sufficient time was needed to do justice to the matter, and therefore recommended that the Fifth Parliament be requested to do the work. The ANC motion was carried by seven votes. The Committee noted that despite commitment to the task there was insufficient time to deal with the work required. The ad Hoc Committee therefore recommended that the matter be referred to the Fifth Parliament.
The Chairperson asked for comment.
Mr Selfe wanted to suggest an alternative formulation for the Report, which he read out. The introduction noted that on 19 March 2014, the Office of the Public Protector released its report on allegations of impropriety and conduct at and in respect of the private residence of President Zuma. On 2 April the President, responding to that Report, wrote to the Speaker of the National Assembly, enclosing a copy of the PP’s report and a proclamation by him to the SIU. On 9 April the Speaker appointed an ad hoc committee in terms of the Rules to consider the submissions of the President in response to the PP’s report, and to and make recommendations where applicable, exercising the powers that were necessary. The composition of the Committee was summarised. It was noted that it must report no later than 30 April.
The report went on to list “Activities” and gave a summary of what transpired on 24 April. It also noted that an alternative motion was proposed, to call for an extension of the life of the Committee, to ask relevant people (as summarised in the letter from Ms Mazibuko to the Chairperson) to appear before the Committee and, if circumstances indicated, the President. The Committee was mindful of its constitutional responsibilities, particularly section 55(2) which enjoins Parliament to ensure that executive organs are held accountable. The Committee did not believe that anything other than an attempt to discharge its functions would be responsible. It recommended that, having done some work and to the extent that it may not be able to fulfill all tasks, the outstanding matters be referred to an ad hoc committee in the Fifth Parliament to investigate:
- any outstanding matters
- whether the President deliberately misled Parliament
- whether he had violated the Constitution
- whether he had benefited improperly from the work at his residence
- any remedial steps taken
- whether he should be removed from Office in terms of section 89 of the Constitution.
Dr Mulder wanted to point out one or two matters in respect of the draft Committee report, as read out by the Committee Secretary. Firstly, on page 2, second paragraph, he noted that the phrase "after deliberation, the proposal was not supported" was not correct, because some parties had supported it. It should be noted that the ANC did not support it. Secondly, where there was reference to a proposal, he clarified that the FF+ had presented it on behalf of other parties. He also noted that the vote of the FF+ should read "FF+, representing the other opposition parties”.
Ms Dlakude understood the corrections suggested by Dr Mulder. She moved that the Committee should adopt the report prepared by the Committee section. Some of the matters in the alternative report read out by Mr Selfe were not even correct, and did not reflect what had been one in the meeting, so it should not be considered.
Ms Moloi-Moropa suggested that the phrase "after deliberation, the Committee did not support" be used, because this implied that this was a majority decision. The matter was not actually put to a vote.
Mr Burgess started to refer to page 2 of the “ANC report” and was interrupted by Ms Mazibuko, who said that she thought it was a Committee report.
Mr Manamela said that he had understood that the FF+ actually made a proposal but not much turned on that wording. He accepted that the suggestions of Dr Mulder were proposals for amendment of the Committee section’s draft report. The ANC could not agree to what Mr Selfe had suggested. Even if the Committee had continued its work, the ANC would not have been agreeing to some of the proposals raised in that report, because they were going even further than the matters on which the President’s response was required. He had spoken to this pint earlier. The ANC had been accused of working to a pre-determined outcome, but this appeared to be the pre-determined outcome of the DA.
Mr Manamela wanted to second Ms Dlakude’s proposal for adoption of the draft report compiled by the Secretariat.
Mr Singh also spoke to the report tabled by the Secretariat. On page 2, he thought there was a need to clarify the wording starting "subsequently the following two motions were considered" - the content may be correct, but it did not read well. The question of inviting oral and written submissions was the reason for the debate on the time frames; it should be clear that the Committee did believe that these were needed, which was why it felt that there was no sufficient time.
The Chairperson said that this was discussed, but no firm decision on that was taken.
Mr Swart said that he would like it to be reflected, on page 1, after the reference to COPE not submitting a name that the ACDP was not permitted to fill the vacancy of COPE but had participated fully in the deliberations. That was factually correct.
Dr James pointed out that in the first line of the report, the reference to “the Speaker of Parliament” should be corrected to “the Speaker of the NA”.
The Chairperson said that this report was not a minute, but agreed that Mr Swart’s request was factually correct. He also noted that the names of Members should be included in order to clarify the point about Mr Swart’s participation.
Ms Moloi-Moropa said that although she had held a different view, she would abide by the Chairperson’s ruling
The Speaker noted that there was nothing preventing the Committee from specifying that the proposal was not supported. He suggested that it should simply be said that two motions were put for consideration.
Mr Selfe moved a motion that the alternative report he had read out be adopted. This was seconded by the FF+ and on a show of hands, was supported by three votes, two from the DA and one from the FF+ on behalf of the other opposition parties.
The ANC first report, with amendments, was supported by six votes from the ANC, and one from the IFP.
The Chairperson said that the necessary amendments would be made and the final report submitted. He thanked all Members and wished them well in the remainder of their campaigns.
The meeting was adjourned.
- Ad Hoc Nkandla: Committe to consider submissions by President in response to Public Protector’s report 3
- Ad Hoc Nkandla: Committe to consider submissions by President in response to Public Protector’s report 1
- Ad Hoc Nkandla: Committe to consider submissions by President in response to Public Protector’s report 2
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