The meeting began with a discussion of whether additional items should be placed on the meeting’s agenda. Specifically, Mr N Shivambu (EFF), wanted it decided whether the letter by the President of the Republic to the Public Protector, of 11 September 2014 could be discussed. Members raised both supporting and alternate views. The conclusion was that the matter was not put to vote and the Chairperson assured the Committee that he would personally ensure that all relevant documents are tabled. He would investigate the confidentiality of the Cabinet memorandum mentioned in the Special Investigating Unit report
During the adoption of the minutes of the previous meeting, Mr N Singh (IFP) raised the points arising from the minutes, that the list of documents to be considered is incomplete and that the Members had not been fully provided with the documentation, specifically only a media statement on the Public Protector’s report had been submitted. Members continued to raise the various reports and pieces of correspondence which they felt were necessary to be included. Ms G Breytenbach raised a Cabinet Memorandum of 2003 to which the Special Investigating Unit’s report referred. The Chairperson, on the advice of the Parliamentary Legal Advisor, indicated that he would consider whether such a memorandum was classified.
Mr M Lekota (COPE) then explained why his party felt it could not participate in the Committee, saying the Committee had no right to review the work of the Public Protector. Only a court of law could do that and the Committee is being co-opted into violating the Constitution. Several Members attempted to quell his concerns, by indicating that the Committee is set up to consider rather than review the report in question. Members of the opposition used the Constitution to argue that the Public Protector’s report has special standing. Members of the ANC countered that the report of the Public Protector should not be singled out, as all relevant reports would be considered. Unable to persuade the Committee, Mr Lekota and his party took their leave.
The its programme going forward, the Committee agreed that the next sitting should be Thursday 25 September and Friday 26 September 2014. There was a large amount of debate about whether the Committee ought to call in specific people, particularly the Public Protector and President. The EFF Members indicated their view was that the Public Protector ought to be called in on 25 September for clarification of her report and thereafter the President should be called to account. All opposition parties supported the eventual summoning of both of these individuals and others. The ANC however persistently argued that the reports must be considered before it can be determined who ought to be called. The opposition forcefully argued against the consideration of the reports, if this were interpreted to mean re-reading the reports, because the conclusions have already been drawn, although it conceded that Members ought to be given time to peruse the various documents. In the end it was decided that the Committee would sit on Thursday 25 September to consider the documents and determine other matters including who ought to be called.
Introductory Remarks and Agenda
The Chairperson apologised for the late start to the meeting and explained this was due to the House rising later than expected. The minutes for its 9 September 2014 meeting had been distributed. The present meeting would discuss the programme of the Committee. He noted apologies from Mr J Malema (EFF) and
Mr J Selfe (DA).
Mr M Lekota (COPE) said that he wanted register the reason why his party was not participating in the Committee and this was because it believed the Committee to be unconstitutional.
The Chairperson interjected saying that they were not yet at that point in the agenda and he would have an opportunity to voice his opinion then.
Mr N Shivambu (EFF) wanted to indicated that he was here as an alternate Member.
The Chairperson said that this had been communicated and should be related to the Secretary to the National Assembly, for formal recording in the committee membership.
The Chairperson moved to the next point on the agenda which was to adopt the minutes of 9 September.
Dr M Motshekga (ANC) said that the purpose of the meeting in the agenda should be properly phrased, as the Committee is to consider reports, rather than a single report regarding the security upgrades.
The Chairperson said that this is noted. Further, he had asked the committee staff to ensure that attendance by non-committee members, who are free to do so, is properly reflected in the attendance register.
Mr Shivambu supported adopting an agenda for the meeting and said that the circulated agenda is clumsily compiled. He disagreed with Dr Motshekga saying that the circulated agenda’s phrasing was the same as that of the resolution taken in the House. Further, there was a principal agreement that part of the Committee’s work will be to discuss all the reports tabled and that there will be issues that arise, including whether the Committee ought to exist.
The Chairperson said that Committee has been allocated a secretariat and Members are commenting on the 'draft' agenda; however there is general agreement that the minutes of 9 September should be dealt with.
Mr Shivambu asked if it was not standard practice to adopt the agenda before minutes are looked into, particularly to determine if there are not additional matters which press the Committee.
The Chairperson said as per general agreement indicated by Members, what would be dealt with was the adoption of the minutes. Further, as agreed at the previous meeting the present meeting would be for political parties to express their views on the programme of the Committee and discuss this; which is reflected on the draft agenda.
Mr Shivambu replied that he had not heard the Chairperson call for additional items to be placed on the agenda and he would have done so had he. He said that since the last meeting a serious development has occurred.
The Chairperson asked if Mr Shivambu would like to propose an additional item for the agenda.
Mr Shivambu answered that he would like the letter written by the President to the Public Protector on 11 September 2014 to be placed on the agenda.
Ms M Kubayi (ANC) said that whatever response had come from the President would be part of the documents dealt with by the Committee.
Mr Lekota said that his issue was brief and that he felt as all parties in Parliament are entitled to participate in the Committee, it was appropriate for his party to indicate why it believed the meeting should not continue. If it was unable to persuade the Committee, then it would “vacate the meeting without disruption”.
The Chairperson said he had asked for responses to the proposal by Mr Shivambu that an additional item be placed on the agenda and, if he would make a similar proposal, he would allow it. He then asked for a seconder for the proposal of Mr Shivambu.
Mr Maimane seconded the proposal and the Chairperson noted this.
Dr Motshekga said that he thought it was important that the process which is to unfold is understood. The agenda states that the programme of the Committee is to be determined and this implies deciding the issues which the Committee is to tackle. It would be ‘jumping the gun’ to begin to deal with substantive issues, before the programme is determined.
The Chairperson interposed asking if Dr Motshekga would like to make a counter proposal.
Dr Motshekga answered that he was simply saying that it is important for the Committee to have a common understanding of the process.
The Chairperson said that there had been a proposal for the inclusion of the letter by the President on the agenda and he asked for any opposing views.
Ms Kubayi said that procedurally committees do not find things for themselves to discuss and anything to be discussed is to be referred by the Speaker of the House. This has not been the case and therefore she must reject the proposal of Mr Shivambu.
The Chairperson asked for a seconder for the view of Ms Kabayi and noted that it was. He clarified that the Committee is considering the agenda. There are two opposing proposals, which have both been seconded. Therefore, there are two differing views on the table. He asked for Members in favour of the inclusion of the item as proposed to indicate so.
Mr Shivambu interjected saying that the Chairperson should not “trivialise this process and want to subject us to voting cattle”.
The Chairperson said that he had allowed Mr Shivambu to propose an additional item for the agenda for the present meeting and that Members from the ANC had indicated a different view, preferring that the matter be referred through the Speaker or dealt with later. He reminded the Committee that all relevant information will be gone through as decided at the previous meeting. The question was whether the item should be dealt with today and it is normal procedure to place this before the Committee to decide when there are different views. He assured the Committee, that as chairperson he would ensure all relevant information would be tabled.
Mr N Singh (IFP) said that all documentation should be placed before the Committee in due course. However, it is not necessary for the particular document to be placed before the Committee presently, with the proviso that the Committee has the assurance of the Chairperson that it would be in the future.
Dr P Mulder (FF+) said, citing Rule 138, that the Committee’s work cannot depend on what the Speaker refers and it must take note of everything that happens regarding the issue at hand. Further, the question is whether the proposal for inclusion of the item can stand. He saw no reason why it could not be included under point three of the agenda. The occurrence is relevant, should be discussed, and Members provided with copies of the letter so that they may proceed.
Mr Lekota said he supported the inclusion of the item on the agenda.
The Chairperson reiterated that he had given his assurance that all relevant documentation will be placed before the Committee and Members had accepted this. He proceeded to adoption of the minutes.
Adoption of Minutes
The Chairperson went through the minutes of 9 September 2014, asking if there were any errors.
After the correction of minor typographical errors, the minutes were adopted and the Chairperson asked if there are any matters arising from the minutes.
Mr Singh noted that the list of documentation provided by the secretariat is incomplete. Further, the version of the Public Protector’s report was a media statement rather than a report.
Mr M Maimane (DA) wanted to emphasise this as the media statement provided, did not cover the full extent of the report. He wanted to know the rationale behind the extent of the documents provided, because a discussion on the programme of the Committee needs to be based on the view that the Committee has all the relevant documents. In the absence of this, the discussion of the programme will be difficult. Key to this is where is the Public Protector’s Report and why it has not been attached?
The Chairperson said that while it is correct at present only a media statement has been provided, the full report will be tabled.
Ms Dlakude said that it is true that the full Public Protector’s report is required, but all of the reports regarding the security upgrades must be considered.
The Chairperson noted that the full report has not been provided and asked if there were any other reports which the Members had received from the secretariat, that were incomplete.
Ms Kubayi said that the final report of the Special Investigating Unit (SIU), the report of the Joint Standing Committee on Intelligence, Inter-Ministerial Task Team’s report, recordings of the previous ad hoc committee and President's responses to all these reports.
Dr Mulder said that in referring to the letter by the President, Ms Kubayi is going beyond reports. He agreed with all the reports mentioned and added that the replying letter by the Public Protector to the President’s response to the Secure in Comfort Report should be included.
The Chairperson said that all of the above must be distributed, so that a rational discussion can take place about what ought to happen.
Adv G Breytenbach (DA) said that the SIU report made reference to a Cabinet Memorandum and the requirements set out therein for the security upgrades.
The Chairperson replied that by nature Cabinet documents are confidential and not for public consumption. He therefore referred the matter to the Parliamentary Legal Advisor.
Mr Ntuthuzelo Vanara, Parliamentary Legal Advisor, agreed and asked if the documents referred to were attached to the SIU report. If they were not, then the position would be as the Chairperson has indicated. He could not give a proper proposal for action to be taken by the Committee, as he did not have the necessary documents. In sum, he agreed that Cabinet memoranda are classified documents.
Mr Maimane said that he did not want to belabour the point whether such documents are classified or not, however this is an important issue. The SIU report goes to great lengths and raises the Cabinet Memorandum again and again. Therefore, the Committee needs to decide on whether the document is to remain confidential. If it does remain confidential, he was concerned that an important substantive element of the SIU report would be missing.
Dr Motshekga said that reports by their nature will have footnotes and references. If before the Committee even has sight of the documents, it requests more which are referenced in the document's footnotes, then justice shall not be done. He agreed with Member’s suggestions that all the documents should be placed before the Committee. Subsequent to the main reports being considered, then further documents may be requested.
Mr Maimane said that the SIU report has been submitted to the Committee and he is not speaking from a document which he has not yet seen. In the same vein as the Public Protector’s report not being placed before the Committee in full; if the Cabinet Memorandum is not placed before the Committee then it will not be able to fully understand the SIU report or its footnotes.
Mr Singh said that there is reference to a Cabinet Memorandum from 2003 and there is also a Cabinet Policy of 2003. He wanted to know if these were the same. If not, whether both documents should not be placed before the Committee.
Ms Kubayi suggested that the Chairperson be allowed to find out whether the document is classified or not and report to the Committee. Otherwise the Committee will be debating something it is not fully sure of and this is preventing it from reaching the substance of the meeting.
Mr Beukman said that the Committee is pre-empting the discussion of the contents of the programme. This is especially as there are a host of other documents referred to in the SIU report. The main reports which should be considered would appropriately be discussed under the programme and others will come up as the Committee moves on.
Mr Shivambu said that the Committee should as a matter of principle and from the outset reject the notion that there are documents which cannot be tabled in Parliament. A process needs to be embarked on to ensure the Committee uses every means to secure all relevant documentation. Parliament cannot be deprived of its oversight role, due to classified documents. As it is government that classifies documents, people can hide behind such classifications and this cannot be allowed.
Mr Motshegka said that the Chairperson has repeatedly said that all relevant documents will be put before the Committee and what Mr Maimane has proposed is that the Committee now take a decision on the Cabinet Memorandum. He, as a Member of the Committee, had not seen the SIU report and could not take a decision on something of which he was not fully informed. There is time and a willingness to place all documents before the Committee and the Chairperson has made a commitment to this.
The Chairperson closed the matter asking for an opportunity to meet with the Parliamentary Legal Advisor, so that the status of the documents referred to can be determined, and he will report to the Committee. Lastly, he asked for specific instances where the document is mentioned in the SIU report.
Adv Breytenbach referred to chapter 6 of the SIU report, particularly pages 189 to 191 and again on page 240 in the final chapter.
The Chairperson said this matter has been dispensed with and asked if there are no other matters arising from the minutes.
Mr Lekota said he is at a loss as to where the meeting was and still wished to raise the point he had tried to earlier.
The Chairperson replied that Minutes and Matters Arising have been dealt and it is moving to point three on the agenda, which is where he will allow Mr Lekota to make his statement.
Statement by COPE leader and discussion
Mr M Lekota (COPE) said that Members of Parliament took an oath to advance the Constitution of South Africa and section 2 of the Constitution invalidates anything which is inconsistent with the Constitution. A question prior to the establishment of this Committee is whether there is any structure or person empowered by the Constitution or any other law to set up a committee to review the work of the Public Protector, aside from the judiciary. There is nothing in any law which gives the President or anybody else the power to set up such a committee. The Committee therefore has no status within the constitutional democracy and this needs to be communicated to the President. Further, on his part, he has no intention to be part of the violation of the Constitution.
Ms Dlakude said that this Committee was established by the adoption of a draft resolution by the National Assembly of Parliament and the role of the Committee is to consider all the reports and responses by the President regarding the Nkandla security upgrades.
Ms Kubayi said that it needs to be clarified that the Committee is not here to review the report of the Public Protector. Secondly, it is COPE’s constitutional right to decide not to participate, but it should not hold the Committee’s work at ransom merely because it has a different interpretation of the Constitution. She felt that the Committee was being side-tracked and should move on to its work as there is a deadline to meet.
Mr Shivambu said that part of the recommendations of the Public Protector's report was that an ad hoc committee should be established to look into the issues at hand. Secondly, the Public Protector has expressed remedial action, as empowered to do by the Constitution and Public Protector's Act, this being that a portion of money must be paid back to the state. The Public Protector’s Act says that her actions can only be reviewed by a court of law. The President has written a letter to the Public Protector questioning the powers of the Public Protector as per the Constitution, even indicating that he views her as “an ombudsman like” institution which is not a court and cannot order him to act. Mr Lekota is raising the question of what then becomes the status of the Committee, where the President is questioning the powers of the Public Protector as enshrined in the Constitution and Public Protector's Act. “Is the Committee not going to legitimise the deliberate defiance of the President, who is disregarding the law given to the Public Protector by the Constitution and Public Protector's Act”. How can the Committee proceed when there is already a directive indicating that money must be paid back and the President is refusing to comply with this directive. This is the question that should be dealt with before the Committee deals with anything else.
Mr Maimane said that the process which has brought the Committee to the present point is that a complaint was lodged with the Public Protector about the upgrades at Nkandla, a report was then commissioned and the result tabled in Parliament. The commissioning of the SIU report and others was subsequent to this process being initiated. He therefore agreed with the phrasing that the Committee is to consider the President’s response, specifically to the Public Protector’s report. What then becomes vital is that, while there can be multiple reports, the constitutional mandate requires the first decision by the Committee to decide what its position is regarding the Public Protector. This matter is important, because the Public Protector’s report began this entire process - and the extent of her powers must be decided upon. If this is not done then the President’s response to the Public Protector should be accepted and the work of the Committee abandoned. While the other reports were important, he felt that if there is no common departure point then the Committee may end up giving the wrong answer.
Dr Mulder understood that under discussion was the point of Mr Lekota who said that he would not participate in a Committee which was unconstitutional. It is not for the Committee to review the report of the Public Protector and if it were to attempt to do so, it would be acting outside the bounds of the Constitution. He appealed to Mr Lekota to remain within the Committee, because it is the perfect opportunity to determine what has happened to taxpayers' money and hold the executive to account. Parliament is empowered to set up ad hoc committees, which it rather than the President did. Dr Mulder therefore did not believe the workings of the Committee are unconstitutional. Responding to what was raised by Mr Maimane, the letter by the President could be his interpretation and he is entitled to that; as Dr Mulder was entitled to his own, which was that “[the President’s] interpretation is completely wrong”. To him the work of the Committee is clear, the Public Protector issued a report and it is the task of the Committee to ensure the recommendations of that report are implemented. The Committee is even entitled to go beyond the Public Protector’s report, because there are a number of questioned asked by the Public Protector which were never answered. There are also other reports which raise separate issues which need to be looked at. He said that there is no way that this Committee with any credibility can shy away from the reality on the table.
Dr Motshekga said that after the other Members have spoken, Mr Lekota will concede that this Committee was established by Parliament, not the President. Further, that it is to consider, not review, the report of the Public Protector. Its mandate is to consider all documentation placed before it and make recommendations to the House. Therefore, the powers of the Public Protector are not in question and are prescribed by the Constitution and the Public Protector Act. On the letter written by the President, he said that this should be dealt with when the Committee is considering the President’s responses and it would be premature to do so now. To Mr Maimane, he said that the powers of the Public Protector are not under discussion, this has been prescribed by law and all that is left is to do is consider the reports and make recommendations to the House.
Mr Beukman said that reading the Constitution in its entirety, it is clear that the task of the Committee is based in section 42(3), particularly the phrase, “scrutinising and overseeing executive action”.
Mr Singh said that Dr Mulder has answered the point raised by Mr Lekota. A moot point going forward is the extent to which the President is bound by the appropriate remedial action recommended by the Public Protector. He therefore asked what resources are going to be made available to the Committee, to capacitate the Committee with independent opinions on the constitutionality of this point.
The Chairperson said that Mr Singh is going into the more substantive matters arising from the reports.
Mr M Ndlozi (EFF) said that Mr Lekota’s point, while it is agreed that the final conclusion is incorrect, raises the fundamental contestation of what is at hand. This is going to confront the Committee at some point, because the other reports contradict the Public Protector’s, as do the actions of the President. Further, that interested parties ought to seek a court’s interpretation of the President’s actions on whether he is bound by the recommended remedial action, particularly as the other reports suggest amending these recommendations.
The Chairperson wanted to remind the Committee that it is functioning under the resolution of the National Assembly and the agreement that all relevant reports will be considered. If there is any view on what parties do, this is up to them, but the work of the Committee will continue.
Mr Shivambu said that the assurance he is getting is the Committee is not going to review the findings of the Public Protector. The last paragraphs of the President’s letter to the Public Protector indicate that he is waiting for the conclusion of the parliamentary process, suggests that the Public Protector do the same. If the work is not being reviewed, then the Committee is being used as a bar to the implementation of the remedial recommendations of the Public Protector. He therefore supported that a court ought to be approached for a common interpretation of the powers of the Public Protector, as there is already precedent indicating that the Public Protector is not a mere ombud, although the President says this is the case.
Ms Dlakude said that the Committee had dwelled on this item for a long time. The Committee has agreed with Dr Mulder and the other speakers who indicated that the Committee is not reviewing anything, but is considering all the reports relating to the security upgrades. She urged the Committee to move on to the programme of the Committee and so it can be decided when what is going to be discussed. Moreover. it seems that the Committee is entering into the substance of the documents to be considered.
Dr Motshekga agreed with the Chairperson’s reply to Mr Singh that the stage has not been reached where even the media statement of the Public Protector can be discussed. He reminded Mr Ndlozi of the doctrine of the separation of powers, saying that a court should intervene to interpret the position, while the Committee is seized with the same matter as that would be unconstitutional.
Mr Shivambu interrupted that there is not such proposal and that it is suggested that the court is approached separately.
The Chairperson said that Mr Shivambu has had an opportunity to speak, as has everybody else and therefore the Committee should be patient with one another.
Dr Motshekga continued, saying that the constitutional situation is that Parliament is seized with the matter at hand and does not need the courts to come and explain what the Constitution means. Further, the point has not been reached for discussion of this matter, because the Committee has not seen the letter from the President and can only rely on reports from the media. The Committee also cannot decide whether recommendations from the any particular reports should be implemented, because it has not had the opportunity to deliberate on the reports. He therefore suggested Members agree that the time will come for the Committee to decide what will be implemented or not.
Mr Maimane proposed a way forward, saying that it has been agreed that the Committee is not reviewing anything and must take the reports as they stand. The Committee should not get into a discussion which makes Parliament seem lesser than the President, because Parliament has elected the President and has the power to recall the President. It should be debated whether the President’s interpretation of a law is the guiding light of the discussion. Constitutionally speaking, the Committee is tasked with holding the executive to account. He would therefore be comfortable with the preliminary conclusion that the President’s opinion is his own, right or wrong, and this is subject to Parliament’s ruling. It is for the Committee to say that a parliamentary process is under way, a Chapter Nine Institution has issued a report and the executive, that is the President, must be subject to this.
Mr Ndlozi said that it was in an attempt to persuade Mr Lekota to stay that Mr Ndlozi had suggested that as an interested party he can initiate a collaborative process and approach the court for an interpretation of the contradiction.
Mr Lekota said that he thinks the matter presently dealt with is more important than Members are taking it. The Constitution is the supreme law of the land and the powers of all structures at all levels must flow from the Constitution. The Committee should not pretend that it is not reviewing the work of the Public Protector. The Public Protector has issued a report recommending certain remedial actions. The Constitution states the Public Protector has the power to review all public acts, aside from the work of the courts and make remedial recommendations. Nowhere does it say that any structure can review this, aside from the courts, because the Public Protector is subject only to the law. By acting without empowering legislation, the Committee is undermining the Constitution. It would be wrong to be party to a process which is patently unlawful and unconstitutional. The stance is that there must be compliance with the remedial action that the Public Protector has prescribed.
The Chairperson asked Mr Lekota to conclude, as he was repeating himself. He asked Mr Lekota to finish his statement.
A Member of COPE raised a point of order, saying that the Chairperson is not assisting the meeting and as Chairperson he is supposed to be neutral. He had not done to the other Members what is being done to Mr Lekota, who ought to be given a chance to complete his statement.
The Chairperson replied that it is not a point of order, because Mr Lekota is being given an opportunity to complete his statement.
Mr Lekota continued saying that the reason he was in attendance was to place on record the reasons his party believes that the process should not be continued and is prepared to withdraw if it cannot persuade the Committee. He assured the Committee that this was not a walk out, but a principled and orderly withdrawal, to avoid participating in a process which is believed to be flawed.
The Chairperson said that the Committee is not pressed for time and all Members will be given a fair opportunity to raise their points. However part of his role as Chair is to bring the discussions to some form of conclusion.
Dr Motshekga said, with respect, that Mr Lekota’s interpretation of the Constitution is wrong. The section empowering the Public Protector must be read with the Public Protector’s Act and this act empowers the Public Protector to table their reports in Parliament for consideration. This is the case at present and how can it be unconstitutional for Parliament to deal with a report which is tabled and deals with a matter of national interest? He said Mr Lekota’s presence is valued and he is advised to remain in the Committee
Ms Dlakude warned Members that if they were to come to such a meeting with premeditated outcomes, then justice is not going to be done to the work expected of the Committee
Mr G Gardee (EFF) said that the fact of the matter is that Mr Lekota believes what he has said and if this is scrutinised then it will appear that there is an element of unconstitutionality. The Committee is not where the fault lies, it would appear the house resolution is the source of the unconstitutionality. Further, there is a likelihood of litigation against Parliament and the Committee on the manner in which it has approached the matter. This Committee has been established in terms of three statutes, the Constitution, the Public Protector's Act and the Executive Members Ethics Act; rather than the benevolence of Parliament. Therefore it must be accepted that the Committee is established foremost to deal with the Public Protector’s report and recommendations. It is a fact that the Public Protector’s report in terms of the resolution of Parliament is being treated just like any other report. He said that this is where the source of the constitutional crisis arises. The Committee has been “set up”, because its terms of reference which include the subordination of the Public Protector’s report to other reports is the source of the unconstitutionality. As long as the colleagues in the ANC continue to equate the reports, the Committee is bordering on unconstitutionality.
Ms Dlakude tried to speak, but was interrupted by Mr Maimane who raised a point of order, saying that the Chairperson had indicated an order of speakers with Mr Mulder as the last and yet an ANC member was getting another chance.
The Chairperson asked the Members to relax and have patience in working through this matter.
Dr Mulder said that it is good that Members have referred to the Constitution and that it will be needed in the coming weeks. Further, he referred the Committee to section 43 of the Constitution which vests the national legislative authority with Parliament. Mr Lekota had requested a legal basis for the powers of the Committee, now if the agenda was "to review" or "amend" the Public Protector’s report then this would be absent and therefore unconstitutional. There was unanimity that this was not the case. However, the legal basis is section 55(2) of the Constitution, which enjoins the National Assembly to establish mechanisms to ensure that all executive organs of state are held accountable. Further section 55(2)(b) requires Parliament to conduct oversight over these bodies. Lastly, on the suggestion that the Committee could be taken to court, he said that Members have parliamentary privilege in the work they do and the statements they made.
Ms Dlakude reminded the Committee that the real reason why all relevant documents must be looked at is that the first investigation was by the Inter-Ministerial Task Team, followed by the Joint Standing Committee on Intelligence, Public Protector and then the SIU. This is evidenced by the Public Protector adopting some of the recommendations of earlier reports.
Mr Gardee attempted to interrupt, but the Chairperson warned that Members may not agree with what is being said and the statements made are not necessarily fact.
Mr Gardee continued on a point of order Ms Dlakude is replying to the issue raised by him about the unconstitutionality of the resolution passed by Parliament and she is trying to piggy-back onto it another issue related to equating the reports at hand.
Ms Dlakude continued that some are recommendations of the Inter-Ministerial Task Team and it referred some matters to the SIU, so why can the reports not be treated as equal.
The Chairperson said that Mr Maimane has suggested the Committee continue and get into the planned work. Members are now getting into issues such as the validity of the resolution of the House and views raised at the time. The Committee is functioning in terms of a resolution of the National Assembly and it is for that House to determine its own business and this cannot be interfered with by a court. It is therefore for Members, as representatives of their parties, to decide the extent of their participation in the process. However, the Committee must continue its work and all the matters raised by the Members will be dealt with at a certain point. The Committee must now move on to the determination of its programme, particularly what reports are to be considered, what dates it is going to sit on and the path forward. Keeping in mind that some Members will be away the following week. The Public Protector’s report is available on the internet and Members can access it themselves. He however implored the Committee staff to check if the Members wish to have a hard copy. It must be concretely decided now what the content is going to be for the next meeting, so that deliberations can start on substantive matters.
Mr Lekota expressed gratitude for the Committee giving his party the opportunity to try and persuade the Committee of its point of view. He asked for leave to absent himself, because he could not sit there in good conscience.
The Chairperson gave him leave.
Discussion on Programme of the Committee
Mr Shivambu said that on page 442 of the Public Protector’s report part of the remedial action recommended, aside from the money to be paid back, is that the President report to the National Assembly, of which the Committee is a part. He suggested that the Committee should sit from Tuesday to Friday next week, so that the process can be expedited. He suggested the Public Protector come and summarise her report and subsequent to that the President be subpoenaed to respond to the report. He advised this as the recommendations were meant to be implemented 14 days post-publication.
Mr Beukman proposed sitting on 25 and 26 September, the following week Thursday and Friday. This suggested this as Members are on oversight visits from Wednesday to Friday. Further, that the committee staff do a textual analysis of the reports and provide that to the Committee as a reference, for deliberation at the sittings.
Ms Kubayi agreed with Mr Beukman's suggestion. Further, that the committee staff peruse the documents, particularly where there are overlaps and brief the Committee on these. The reason she proposed this is to give enough time to the committee staff to prepare such a document and also because Wednesday is Heritage Day. On Thursday the comprehensive document should be dealt with in light of the Member’s own reading and on Friday the President’s response considered. She agreed with Mr Shivambu that the process must be expedited. She disagreed with the haste with which specific persons are to be called. Particularly as it has been determined that the Committee is not to review the Public Protector’s report, and calling the Public Protector is to be done on what basis. If the Members can read the report, in the absence of any disagreements on analysis, why should the Public Protector be called.
Mr Ndlozi said that any form of delay tactics should be avoided even in the name of Members’ intellectual competence. He agreed that the Committee should be given time next week to read all the reports. However, two people must be subpoenaed, on Thursday the Public Protector to be engaged with and clarify points in her report, because of the importance of this report in the constitutional scheme. Secondly, in order to ensure checks and balances in line with the doctrine of separation of powers the President should be called on Friday so that he may answer questions of the Committee. While both these parties are to be engaged based on all the reports, the importance of the two identified persons in the context elevates the need for their presence. Lastly, the people need to see justice being done with speed and he believes the Members are capable of achieving this.
Mr Maimane disagreed with the notion that all reports should be read as inter-related. It was unnecessary to table another report, because this would be conflating the findings of the various reports. In his opinion it is the report of the Public Protector which began the process and therefore she must be called to speak to her report. Secondly, the SIU report was also served and it is even more explicit about its recommendations for remedial action. The Committee is not engaged in a re-investigation, and although Mr Maimane has been accused of prompting conclusions, these are already drawn. Firstly, R242 million in taxpayers' money was spent, secondly, there are people responsible; and lastly President Zuma lives in a house paid for with taxpayers' money. In sum, the reason he supports calling the Public Protector is that although he has been on site, he has questions of clarity on the report which he has read and the same would apply to Adv Soni of the SIU. Therefore, the reports should be studied and ask the author to clarify. Lastly, there is a response from the President and therefore he is also welcome to give clarity to his response.
Dr Motshekga said that it is important that decisions are taken and these are remained loyal to. He said that the minutes have just been adopted, which in paragraph three indicated that after the documentation is considered, it will determine which persons need to summoned. The Committee has not considered the documents and therefore it is not in a position to ask who should be invited or not. Further, what the Chairperson has asked to be done is to propose dates for the meetings. Mr Beukman has done so and if on the day proposed the documents have been considered then the time will be right to determine who to call.
Mr Gardee said that Members of the ANC are adopting the ‘Stalingrad approach’, because it seems they are hell bent on preventing the President appearing before the Committee. He said that the content advisors are employees of Parliament, which are probably “cadre deployments”, and that a report from them is unnecessary. Particularly, as Members are capable of reading and ought to have been becoming familiar with the report since it was released in March.
Ms Kubayi raised a point of order because Mr Gardee is giving the impression that the Parliament staff is biased.
The Chairperson asked for the Committee to not cast aspersions on the political choices of the secretariat or parliamentary staff generally, because this is a matter for each South African to decide.
Mr Gardee said that political parties have their own content advisors and therefore a further report is unnecessary. The Members should be prepared, the Public Protector ought to be here on Thursday and if ANC Members are not ready, then they can call her another day.
Dr Mulder appealed to the Committee to understand the seriousness of what is under discussion. The public is looking at the Committee with a magnifying glass and there is only one chance to do it correctly. He had served on the previous ad hoc committee and that structure did not conclude its work, because it did not have enough time. He emphasised that 25 September is a day less than a month from the deadline for the Committee to submit recommendations to the National Assembly. What the Committee is dealing with should therefore be paramount, until the work is done. He understood the point of Dr Motshekga which was that not all Members have gone through the documentation and those from the previous Committee are at an advantage. He made an appeal that if the Committee is to meet on the 25th, that every Member comes 100% prepared. He said that he is of the opinion that people will need to be called to explain certain things, because the mandate is to look after taxpayers' money. None of the reports indicated that the spending of R246 million of taxpayers' money was positive. He agreed that it cannot be decided who should be called at the present meeting, but he reiterated his appeal that Members come to the next meeting prepared, because time is running out.
Ms Dlakude fully agreed with Mr Mulder. She added that Members cannot jump to conclusions about who to call without even beginning to engage with the work of the Committee.
Mr Shivambu was confused why Ms Dlakude said that the Members are jumping to conclusions when it is said that certain persons should be called to account to the Committee. It is because it is in the Public Protector’s reports that the President must account to the National Assembly about his actions and comments to her report within 14 days. Whatever terms of reference are decided upon must take into account the Public Protector’s constitutionally empowered directive. He said “if the approach of the ANC is really that the President must not appear, then he does not know which constitution they are protecting”.
The Chairperson asked the Members to not repeat earlier suggestions as they have been recorded, what is at issue is the suggestion by Mr Beukman, which is seemingly generally supported.
Mr Maimane said that he supports the suggestion that the Committee sit on Thursday and Friday, what he cannot support is the anxiety about asking the author of a report to come and explain. This is because the Committee has moved passed the stage of reading and the Committee cannot be turned into a reading shop. The point has been reached for decisive action. He struggles to understand the purpose of the next meeting is if it is merely to re-read the report.
Mr Ndlozi said that he did not think that the Committee was different. The paragraph read by Dr Motshekga is open to interpretation. In the normal course of committee work the authors of reports are often called to aid in their consideration, because they have written the report. It helps speed up the work of the committee. Unless there is the problem with considering the report through the original source. The concrete proposal is his original position.
The Chairperson said that Mr Ndlozi has stated his position repeatedly and asked if he is making the same point.
Mr Ndlozi said that he is responding to the arguments of other Members, because they have suggested that the report be gone through without the author present and he is of the opinion that such a meeting would flounder without an anchor of clarity. There are three important documents needing to be considered and inviting the authors is an important part of this process. The documents are the Public Protector’s report, the SIU report and the response by the President.
Dr Motshekga asked for the Chairperson to assist the Committee, because a decision cannot be made and thereafter change the same decision. The decision made was that the documents would be considered and thereafter it would be decided whether or not any person should be called. What is before the Committee is to decide the dates on which these issues will be addressed. Nobody has refused to address the issue, but the timing is disputed.
Mr Maimane interjected with a point of order and asked if Dr Motshekga would answer the question what he means by considering a report.
The Chairperson before referring the question to Dr Motshekga, said that Dr Mulder had raised an important point around the seriousness of the matter at hand and a point is going to be reached where a decision will have to be taken and he can see the two different views on the table, but unnecessary repetition would not be allowed.
Dr Motshekga replied that there are reports to be tabled at a meeting and this meeting has requested that all relevant reports should be tabled for consideration and recommendation to the House. However, resolutions cannot be taken on reports which the Committee has not considered.
Ms Dlakude said that the recommendation by the Public Protector was that the President must respond to her report within 14 days. Further, she supports the Committee meeting on 25 and 26 September. “All the people who have written reports have said all they want to say” and the need will arise to decide what the next step is. The suggestion that the programme be decided upon should be taken forward.
Mr Shivambu attempted to interrupt, however the Chairperson sternly indicated that he had not been recognised. The Chairperson said that he cannot allow that whenever Mr Shivambu wants to speak that the rest of the meeting must sit and wait for him to finish. He did not allow Mr Shivambu to speak.
Ms Kubayi said that the Members are not sure that they are on the same page in terms of understanding the reports. She understood as an ad hoc committee of Parliament it is supposed to be non-partisan and work in unison. The Committee needs a common position on the content of the reports, before any person is called. She firmly proposed that the Committee sit on 25 and 26 September.
Ms Ngxobo said that she supported the suggestion that the meeting sit on 25 and 26 September.
Ms Maseko said that every Committee of Parliament has support staff, she did not agree with the suggestion that the support staff not be used. She supported that two full days, 25 and 26, will be required to deal with the reports. Once it has satisfied itself, then the point will have been reached to decide which stakeholders if any should be called to clarify points.
Dr Mulder appealed to Members that they do not view the process as the Public Protector versus the President. He has heard Members asking who is to take the Committee through the reports, this is for Members to do themselves and if the reports are gone through then it could very well be that more than just the Public Protector should be called. He had not heard any Member of the Committee say that people are not going to be allowed to come and testify before the Committee. Had he done so he would have been surprised, because he was of the view that this shall be necessary - but that this is not the appropriate time as some Members have not studied the documentation. This will allow tangible proposals to be made at the meeting of 25 September.
Mr Shivambu said that he wanted to correct Ms Dlakude on the recommendation of the Public Protector, which was to report to the National Assembly rather than merely respond. Inevitably there will be issues that need to be clarified with the Public Protector’s report and he asked for her presence so that she can clarify what she meant by the proposals on remedial action. He said this because, after the week of the 25th then Parliament is in recess for 14 days and the Committee is delaying its own process. With the Committee’s report to Parliament due on 24 October 2014 it is not practically possible to entertain delays. He therefore urged that part of the consideration of the reports is to have the authors brief the Committee and subsequent to this the President reports to the National Assembly.
The Chairperson said that the date for the Report of the Committee is 24 October 2014, however the rules do allow the mandate of the Committee to be extended, if the Committee makes such as request to the National Assembly. The view which has emerged is that there is agreement that until 25 and 26 September Members be given an opportunity to go through the reports. He encouraged Members to use the time to do this. The support staff is here to stay and will provide support as instructed by the Committee and Chairperson. The view decided upon was that the Committee would meet the following Thursday, 25 September 2014, and matters such as who shall be called will be determined then.
The Chairperson declared the meeting adjourned.
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