Nkandla Security Upgrades: Public Protector and SIU Reports: consideration

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Meeting Summary

The meeting resumed with contradicting views being taken on the two proposals which had been under discussion at the 25 September meeting. The first proposal was that the remedial action prescribed by the Public Protector was binding and not subject to review outside of court. The joint opposition argued for this based on an interpretation of section 182(1)(c) which uses the words “take remedial action”, rather than make recommendations and further. The ANC countered by arguing that there were divergent views in legal academia and as this has not been decided by a court of law, it is open to interpretation. There was then a suggestion from the opposition that a legal opinion on the matter be sought from constitutional law experts, which the ANC members did not agree to as they saw this as un-authoritative and potentially introducing further divergent views.

The second proposal related to the summoning of individuals to the Committee for oral testimony and to provide documents. The opposition argued that as there were unanswered questions and the Committee was empowered by Rule 138 of the Rules of the National Assembly to summon people this ought to be done in order to fulfil the constitutional obligations placed upon Members of Parliament to hold the executive to account. The ANC’s view was that the calling of persons would amount to a re-opening of investigations and if a summoned person were to place concrete evidence before the Committee that contradicted the SIU, Ministerial Task Team or Public Protector Reports, the Committee’s actions would amount to an unmandated review.

There were simmering tensions throughout the meeting with Members questioning the nature of multi-party democracy as it affects the weight of minority party versus majority party views. The impasse which Mr S Swart (ACDP) had warned of was reached when the joint opposition as a whole withdrew, following a return by the ANC to the suggestion that the ten-step decision tree drawn from the Cabinet Memorandum of 2003 be used to identify culpability.

Meeting report

Consideration of Reports
The Chairperson said that the meeting was suspended at the point where two proposals on the table with conflicting opinions on both from the majority party and opposition. He said the agenda item of the previous day would be continued and asked if there were any other matters which Members wished to raise and none being indicated he said the Committee would pick up from where it left off the previous night with new input on the two proposals at hand. He urged Members not to repeat arguments already presented. He requested for the two proposals to be repeated for the purpose of the record.

Mr M Maimane (DA) said that the question had been asked what the stance is on the supremacy of the Public Protector’s (PP) report as a Chapter Nine Institution tasked with reporting to Parliament. What is of import is that the report prescribes remedial action, which were argued at length to not be mere recommendations. Members had accepted in principle that the meeting is not to review the findings of any of the tabled reports and that these have to be taken on board. The proposal is therefore to hold the PP’s report in high regard and support the remedial actions she has proposed. The second proposal is that on both the Special Investigations Unit (SIU) and PP’s reports there were missing answers from the President. Both reports indicate that the Presidents responses were either non-existent or inadequate. Specifically, the PP’s report enjoined the President to respond in the House within 14 days, which was not done. The view is basically that based on the constitutional status of the PP its recommendations must be implemented and President Jacob Zuma must come to account to the Committee. If both of these are achieved then the Committee will have succeeded in upholding the Constitution, protecting the PP and carried out its accountability duties under section 55. This will allow South Africa to finally know what really happened from the one person who knows and this was established in the debate of the previous sitting. Both of these points have to be achieved in order to prove that the Committee values the Constitution and is not merely a ‘sweetheart’ of the executive.

The Chairperson said that he has received a letter from Mr N Singh (IFP) indicating that he has nominated Mr S Swart (ACDP) as an alternate Member. He said that this type of communication should go to the Secretary to the National Assembly, so that it may be places on the order paper, because there is an arrangement of the smaller parties and he is not in a position to deal with this matter. The proper route is to have the Speaker of Parliament register it in the ATC, via the Secretary of Parliament.

Ms D Dlakude (ANC) said the ANC maintains that the Committee’s role as Parliament is to consider all reports before the Committee and the President’s response thereto. Further, the Committee is not reviewing any report or opening any investigations. Lastly, the Committee is obliged to make recommendations at the end of the process and these may go beyond those of the reports.

The Chairperson said that there are two clear positions on the table and asked for seconders for both of the positions. Mr P Mulder (FF+) indicated that he seconded Mr Maimane’s proposal, while Ms B Ngcobo (ANC) seconded Ms Dlakude’s.

Mr Mulder said that when the meeting was adjourned it was done so the Committee may get additional information before it on this huge constitutional issue. If the Chairperson wishes to immediately place this to a vote it would defeat what was argued the previous night, which was that the Committee would be given an opportunity to present supplementary arguments. He requested that the opportunity be given to Members to interact, before anything is put to a vote.

Mr J Malema (EFF) said that the Committee should try to pursued one another, because rushing into voting and using ones majority to push through unconstitutional things is likely collapse the Committee, leaving the ANC alone. He did not think that an ad hoc committee comprised of only the ruling party would still enjoy the same status. There are serious implications, it is more than simply voting and resolving whether people are to be called or not. The Committee should ask itself what President Zuma loses from coming before the Committee and saying that he knew nothing about Nkandla. In order to hold the executive accountable it is in the best interest of the Committee and Parliament to decide that whoever could help with a proper determination should be called. He urged the Members to understand the implications of multi-party democracy. “What you are doing with the abuse of majority is that you are going to collapse this fifth Parliament; we’ll completely withdraw from this Parliament, not just a Committee… because if there is going to be an abuse of majority and forcing through the throat of people unconstitutional things what is the point of participating in a Parliament which has no regard for the Constitution”. The ANC is pushing away people who would and reminded the Committee that Dr Mulder had said that ordinarily he would not support the approach of the EFF, but the ANC was leading his to believe it correct. Surely it was not only Dr Mulder who felt this way and the ANC must concede that numbers are not always right, moreover in this instance they are wrong Therefore, he pleaded that Committee be persuaded, for the sake of the Constitution, Democracy and Parliament, that all relevant persons should be called to account before the Committee. Although he does not agree with Dr Motshekga he welcomes his clarity in straightforwardly saying that the view is that the PP’s remedial actions are not binding and there is a possibility of these changing. There therefore needs to be a clear resolution going forwards that the remedial actions of the PP are non-negotiable, in everything the Committee does it should ensure these are implemented and upon being determined addition recommendations can be added in Parliament’s report. Dr Motshekga had indicated that there are conflicting academic views and therefore it is possible to interpret the position as being that the PP’s remedial actions were mere recommendations. How can the Constitution prescribe that the PP can take remedial action and this be reduced to a mere recommendation. If the above cannot be agreed upon it means that the process of the Committee is illegal, which has the potential to change the remedial action prescribed by the PP.

Dr M Motshekga (ANC) said the Chairperson was in order to give the Committee an opportunity to hear the two proposals on the table, he did not understand this to mean that voting would follow immediately. It must be understood that whatever is discussed and proposed in this House is not for the Members, but for the people of South Africa and they have an entitlement to know how conclusions are arrived at and whether they make sense. He agreed that engagement was required before a decision was taken one way or the other. The African National Congress Members have been taught that they should not seek to use numbers to impose a view, but rather superior argument. Numbers should only be used as a last resort, the first attempt should be aimed at consensus, so that the decision taken may truly be one of Parliament. He said as the Committee engages the people of South Africa should be put first, because all Members represent sections of the peoples of South Africa.

The Chairperson said he would allow for discussion on the two proposals.

Mr S Swart (ACDP) welcomed the willingness of Dr Motshekga to find consensus. He wanted to re-emphasise aspects of the Constitution, because this is the key aspect spoke about by the opposition and if the Committee is seen to be undermining the Public Protector, this has major implications for other Chapter Nine Institutions. He read from the Supreme Court of Appeal (SCA) case The Public Protector v Mail & Guardian Limiter, from paragraph 5 “The Constitution upon which the nation is founded is a grave and solemn promise to all its citizens. It includes a promise of representative and accountable government functioning within the framework of pockets of independence that are provided by various independent institutions. One of those independent institutions is the office of the Public Protector. The office of the Public Protector is an important institution. It provides what will often be a last defence against bureaucratic oppression, and against corruption and malfeasance in public office that is capable of insidiously destroying the nation. If that institution falters, or finds itself undermined, the nation loses an indispensable constitutional guarantee”. The opposition has argued that the ANC is seeking to undermine the office. Generally there is a unanimity on the vast number of things which went wrong, but where there is difference is at the last hurdle of unanswered questions by the Presided. He suggested that the ANC find a way to ask the President to answer the unanswered question and while the opposition is calling for his presence in the Committee, would there be no way to ask him to answer the questions within three days. If he was to answer these questions, then surely the two sides would find each other. He warned that this was a critical moment for Parliament and urged the Members to consider what is suggested in the quest for consensus, before a final vote.

Ms L Maseko (ANC) said that it had been agreed that the investigation is not being re-opened, the reports are not being reviewed and that whatever is required is in the reports tabled. Further, that all the reports are important, otherwise only the report of the PP would be under consideration. Also, multi-party does not mean that the ANC must agree to whatever the joint opposition is proposing. “We are not ashamed of being a majority partying and we worked hard for those votes”. The ANC is however dedicated to consensus and as Dr Motshekga has indicated this is only a last resort. What Ms Dlakude has put forward is exactly what was argued the previous day, but the joint opposition seems to want a review and this was agreed against.

Mr N Singh (IFP) disagreed with Ms Maseko’s statement that the opposition caucused deciding to push for a review. This is incorrect and the opposition has clearly indicated that the PPs report is not under review, the recommendations are clear, as is the Constitution which bars such a review. He said that himself and Mr Mulder represent ten other parties. As Mr Swart said that there is so much agreement, where the Committee differs is on the status of the reports. The opposition is for the interpretation of the Constitution which views the remedial action taken by the PP as binding action which must be taken. Dr Motshekga conceded that there are differing opinions on the proper construction of the term. The work of the Committee would be incomplete without resolving this issues at hand and he appealed that the parities try to find one another. He agreed with Mr Swart that the President could receive answers from the President within three days. It seems that the report of the PP has been treated with contempt and its contents wished away, with the focus only being the SIU report.

Mr C Shivambu (EFF) said that it is advising the ANC that it should not venture into unconstitutional terrain, because there will be no sober legal advice which indicates that the remedial action of the PP are mere recommendations. The opposition knows that the ANC’s argument is based on the response by the president to the PP, because the same arguments are being used, with it being said that the PP is a mere ombud and her findings can be questioned by the executive. The attempt by the ANC will not work, because this the first time the remedial action of the PP is being questioned, when it has in the past made recommendations against the then Commissioner of Police Bheki Cele and the state acted upon those remedial actions. The chairperson of the IEC attempted to contest the contents of a report of the PP and remedial action prescribed; she failed dismally. He could not see the point of halting the process, because the ANC maintains a flawed interpretation. The positive about multi-party democracy is that it cannot be wished away and that it prevents a winner takes all situations. The ANC should admit that it should not venture into unconstitutional action, because this will lead to their shaming. He said that the Committee had gotten legal advice on the accessibility of the Cabinet Memorandum and asked if the same could be received here, to allow the Committee’s progress.

Adv N Vanara, Senior Parliamentary Law Advisor, indicated that he had not prepared an opinion at the time.

Ms M Kubayi (ANC) on multi-party democracy said that during elections there were people who called for change of the electoral system, specifically the DA, and this would not lead to multi-party democracy. The ANC had insisted that the current system of proportional representation, because through the constituency system there is a potential for only one party to be elected into Parliament. The second issue in terms of the Constitution the minority views are considered important, but both sides have responsibilities and rights. The minority parties have a tendency to try to make the majority party feel guilty for this and their mandate to govern. It is proper for both sides to have and defend their views, but none should be imposed. In the previous sitting she had indicated her view that she is not confident that when people are called to the Committee, Members will not end up reviewing any of the reports in front of the Committee. Referring to page 345 of the PPs report containing the President’s response, she raid “the Public Protector is aware that I have made repeated requests to be furnished with copies of the documents which are the basis if certain averments and allegations; in order that I may better understand the importance and context of such. This request has consistently been denied under the blanket approach of protecting the identity of complainants and witnesses; notwithstanding the fact that some of these persons known to me, some government officials, others political leaders and oft quoted academics”. She said this because it demonstrates that there are outstanding matters and if the President were to be called with the starting point that questions were not answered. What is the Committee to do if information is before the Committee with information that contradicts a report before the Committee, because it does not have the powers to amend any report. On the remedial action by the PP, there are different views in the public domain on this question and this has not been tested in a court of law. Mr Swart’s reference to the Mail & Guardian case is of limited assistance, because the court did not deal specifically with the binding nature of the PP’s remedial actions. Further, there are divergent views both in legal practice and academia on this question. On the implementation of the recommendations regarding Bheki Cele, she said not all recommendations were implemented. Why was this not questioned at that stage? This is because it suited Members, because there was a politician taking the fall. Members should not come to the Committee intending to do a piecemeal job by targeting an individual, rather the Members should fully discharge their constitutional responsibilities. Members have a duty to ensure that all money stolen is accounted for and everyone implicated should be held to account; because chasing one man in neglect of the process will not be helpful. She reiterated her point from yesterday saying that people should not come to the Committee to make threats, because all Members have rights and may take the action they deem correct. It would not help the Committee if when threats are made, counter-threats are introduced. Lastly, on the issue of the Committee having to report to the National Assembly she said this is in the rules and part of its mandate; because the Committee is doing work on behalf of the National Assembly and it is not for the Committee to take the final decision.

Mr Mulder referred to what was said by Mr Swart and said that this is a genuine appeal and should be taken seriously. Ms Maseko referred to all the reports saying that they are all important; through the Chairperson, he asked whether she has any problems with the recommendations in the SIU report. He argued that there are no problems with the SIU’s report and problems with the PP’s, because the PP’s report implicates the President. The mandate of the SIU was such that no mattes were dealt with regarding the President. Mr Shivambu had suggested acquiring legal advice and in Dr Mulder’s experience this was the most natural thing when other committees feared a constitutional trespass; yet this was not the present case. He said that Ms Kubayi had referred to majority views and minority views; however the Constitution and its values supersede both. The argument from the ANC was that nobody should be called, because if any evidence is listened to this many amount to a review. The second argument contradicts this, because it is then argued that the remedial action prescribed is not binding, although it forms part of an unreviewable report. The ruling party cannot have it both ways; either the report is accepted unquestioned, particularly regarding the remedial action or it should be accepted that the report can be augmented. Ms Dlakude outlined the steps of the ANC’s position, but Dr Motshekga gave content to this saying that the ANC’s views the remedial action as equal to a recommendation. His questioned why anyone should in the future follow recommendations of the PP, as they can be listened to and ignored when this suits parties. He asserted that this was occurring in the present instance, because the President was implicated. Referring to section 181(3) he said organs of state, including Parliament, face an injunction to support, inter alia, the effectiveness of Chapter Nine Institutions and he questioned if the interpretation which treats the findings as recommendations does so. Further, section 182(1)(c) of the Constitution refers to “taking appropriate remedial action” and one does not take recommendations, as correctly pointed out by Mr Malema in the previous sitting. Turning to the South African Human Rights Commission, under section 184 it has the power to “take steps to secure appropriate redress”. Now contrast the above with the power of the Commission for Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities according to section 185(1)(c) which only has the power to recommend; indicating the drafters of the Constitution being aware of the word recommend; yet this was not used regarding the PP or Commission. He warned the majority Members about toeing the party lines and this had been raised at the previous sitting. Mr Mulder was concerned that the leading intellectual light at present was Gwede Mantashe, ANC Secretary General, who had been quoted in the Sunday Independent as saying, regarding the motion of no confidence brought against the Speaker, that “this is an attempt to silence the African majority in line with the fallacious theory that our democracy is about values and not about numbers”. This is the view which informs the arguments presented by the ANC. Section 1 of the Constitution, the most sacred entrenched with a 75% majority, founds South Africa on the values including “a multi-party system of democratic government to encourage accountability, responsiveness and openness”. He argues that the approach proposed by the ruling part draws a line through all of this, because the Committee is not interested to hear what happened or hold all those responsible to account. The point of departure should be the Constitution: firstly, the remedial action stipulated by the PP should be implemented. Second, what does the value of responsiveness mean if the President is allowed to disregard questions? It means that whenever an official is called to account to a Committee they will not have to, because the example has been set by the President.

Ms Dlakude reminded the Committee that it had a mandate to apply its mind to the reports before it and may make its own recommendations which may go beyond these documents. On multi-party democracy, she said that this value does not mean that viewpoints will always agree and Members represent different parties because they have different ideological backgrounds. On calling persons before the Committee, she said if it is said that the reports are final and not subject to review, yet the people called disagree with the findings, then this will be venturing into an unmandated review. Ms Kubayi had raised the response of the President, as per page 345 of the PP’s report, yet no response is forthcoming and she felt this was because Members do not want to apply their minds to the report and only want to have the President before the Committee, based on a selective acceptance of the report. If it is said that the PP’s remedial actions are final, what is the Committee doing discussing it. If it were final, then it would have gone straight for implementation. She was aware of the provisions of the Constitution regarding the powers of the PP, but the question persists if the opposition’s interpretation is adopted, being what is the Committee doing discussing the report then. On the comments of the Secretary General, the Members are not his mouthpiece and he has the right to say whatever he wants to and the same applied to the Members within the Committee. She said that Members cannot use this platform to settle their personal scores; the role is not to target individuals, rather it is to target the collapsed system which was applicable during the security upgrades. If Members approach the work of the Committee with premeditated outcomes, then this will cloud their judgement and justice will not be done to the work of the Committee. The ANC maintains its stance that everybody who is found guilty of wrongdoing must be brought to book. If Members had proof of wrongdoing on the part of the President, then they should go to court to, because the proof ought to be aired. She agreed with Ms Kubayi that the Committee cannot sit and be threatened with court and this has been happening from day one, but the Committee is mandated through the Rules of the National Assembly and threats of court cannot stop its work. She said she was shocked when Mr Mulder, as a respected veteran Member, had said that he supported the behaviour of the EFF in the house; because as a Member one cannot express their frustrations by disrupting the proceedings of the house.

Mr Maimane said that there is a sensitivity about being threatened and his fear was that the ANC is threatening the Constitution and if this is happening it cannot simply be accepted. This is why Mr Mulder keeps reiterating the magnitude of the decision being made; it is about securing an institution which protects the rights of people for the future. This cannot be accepted and Members ought not to be sensitive towards. Responding to Ms Kubayi’s comments on the electoral system he said that she should not come to the Committee and “make grand statements which are inaccurate”, because when the proposal for a constituency based system, accommodating proportional representation was proposed both alternatives were considered. Returning to the electoral system currently in place he said Parliament elects the President, giving him a mandate; leaving Parliament at the top of the chain of command. In this instance the President is not being held to account, based on report which were commissioned and tabled by the executive and contradictions which cannot be a bar to his responsibility. The President has issued a statement indicating that he views the PP as a mere ombud, this Committee cannot rule as to whether he is correct, but Members have taken the position that he is wrong. This is done not because the Members are obsessed with the President, but because the mandate of the Committee says consider the response of the President to the PP’s report and this is what the Committee was commissioned to do. Factors around the President’s response are that it was late, inadequate and made a pronouncement on the nature of the remedial action prescribed. Responding to Dr Motshekga, he cited the Mail and Guardian case reading “there is no dispute in this case that an investigation and report of the Public Protector is subject to review by a court”. He said that the President had his view and if he wished to drive this through ANC structures, this was his prerogative, but the Committee should say that it supports the PP. Ms Kubayi had asked why is it critical for the President to appear before the Committee and this was answered by the quotation she herself made indicating that the President did not know and there are many instances where this is unclear. Further, the extent of knowledge is not expressed as a matter of fact, it is painted in subjectivity and in order to clarify this one must deal with the subject. There was another sensitivity of a fear of contradiction of the reports, but he did not see the problem with this, because this would place the Committee in the best position to make its own recommendations. If people come and contradict the reports, that is fine, because it is not the Committee’s duty to agree with witnesses. He wanted to return the Committee to the two proposals at hand and said that if the ANC has it its way then the consideration of the reports will be reduced to a ‘read-shop’ which will discuss the reports and leave. Members have even indicated that additional remedial steps may be proposed, where these would be drawn from he did not know; yet there were already remedial steps in existence. He disagreed with that approach, because it remains unchallenged that the President’s response has been insufficient and the opposition is merely giving him a chance. If this chance is denied, then the remedial action of the PP ought to be taken as the binding conclusion. It has also been agreed that no review of any reports is suggested, therefore the only question is what steps are to be taken towards implementation of the PP’s report. On the binding nature of the remedial action he said that a legal opinion ought to be requested, because the Committee is stuck between the view that the President’s view is the gospel and that the Constitution is the gospel. Sitting today, he did not see any new light being shed on the crucial proposals raised. He added to Ms Kubayi that she could not co-opt the minority view, based on the argument that she was being made to feel guilty about being part of the majority party. His fear was that the SIU report was being made supreme, allowing the executive to dictate to Parliament, rather than independent, constitutionally mandated institution like the PP. Further, he was concerned that there were many people implicated by the SIU and he would be reluctant if people are called to call director-generals who are directly accountable to the executive. Rather it should be noted that there is a principal member of the executive, a project occurred with maladministration and it should not be determined to what extent they are liable. The recommendations to Parliament must explicitly state that the PP’s findings are endorsed and remedial actions noted. It must not be confused that the President failed all of us and ultimately Parliament is to hold him on account, based on the mandate given to him through the Constitution. He also said that the SIU should be encouraged to continue its work, but this cannot be allowed to turn into the SIU receiving a higher status. He thought he would have heard something fresh from the ANC, he had not unfortunately and moved that the Committee draw nearer to a conclusion on the proposals,

Mr Malema said there is a question of people feeling threatened and perhaps it is because of some people’s strong presence. Multi-party democracies means that agreement is not required, however the Constitution is non-negotiable. Parties in a multi-party democracy can disagree, but the Construction cannot be questioned. Mr Motshekga had referred to a wits academic, but even the title is wrong: “the job of the Public Protector is to…suggest remedial action”; which is contrary to section 182(1)(c). Therefore, this argument fails and ought not be suggested by anyone who takes themselves seriously. Ms Dlakude had asked what the Committee is doing discussing the reports if they are binding and the PP helps us in this regard. He said that a media statement was released by the ANC the previous day after he had spoken only once, labelling him as not having read the reports. Page 442 of the PP’s report stipulates that the President must report to Parliament within 14 days on his comments and action regarding the report, which does not entail the review of any remedial action or other aspect of the report. It is wrong to question the purpose of the Committee, if it is said that the Committee cannot alter the PPs report or recommendations. He guaranteed that there is no court in South Africa which is going to agree that the remedial action of the PP is reviewable by any other body aside from the court, or that these are not binding. He expressed concern that an interpretation which ought to be common cause is being side-lined for narrow, political reasons. What is the purpose of having the PP, if Parliament can simply alter its recommendations, for the complainant may as well have come straight to Parliament. He spoke to the argument that calling persons to the Committee has the potential to introduce contradictions, saying that where the Auditor General makes a finding people are called regardless of how they may contradict the Auditor General’s report which stands. He said “the agitation we are receiving from the other side is that when a finding is made, do not call anyone because they may contradict it and what do you do when they contradict it, it is a constitutional crisis; this is the most illiterate argument I have ever heard”. Chapter Nine Institutions make findings and then Parliament calls people to instruct them on steps to be taken. He therefore could see no cogent argument coming from the majority Members, aside from “doing everything in your power to protect an individual”. He said that perhaps if the ANC was trying to defend the party he could understand, given its history in the fight against colonialism and apartheid, however for an individual. He therefore, made a proposal that the meeting is closed and legal advice on whether the remedial action taken by the PP is reviewable is sought because he could see that there was not going to be agreement. He did not think legal advice was needed on the ability to subpoena, but there is an argument that the ANC does not want to summon anyone before the Committee. This is going to be a serious point of disagreement, berceuses the Committee will be rendered useless if it cannot answer the unanswered questions. He repeated his suggestion that the meeting adjourn to receive legal advice on the first issue and regarding the summoning people the Committee is empowered to do so by the rules and the argument that to do so would be against any law is invalid. The President does not lose anything if he comes to simply repeat what he has told the PP.

The Chairperson indicated that there is still a list of Members to speak and he asked for Members to begin to focus on responding to the concrete proposals on the table, to take the meeting forward. It is clear that there has been little change in the positions.

Mr G Gardee (EFF) agreed that there has been little movement and suggested the ANC be allowed to caucus on the latest suggestions.

The Chairperson replied that the remaining Members would be given an opportunity and then the Committee will break for lunch. He encouraged the parties to discuss things amongst themselves in the break.

Dr Motshekga said that Mr Maimane spoke to the supremacy of the PPs report, but he wanted to remind him that the Constitution created the office of the PP, not the report of the PP. This office was created to support and strengthen constitutional democracy. It was not created to be the fourth arm of state, therefore it is not at the same level as the judiciary or Parliament. An example of this is that the PP does not have the power to order the review an Act of Parliament. Mr Maimane and Mr Malema have proposed that the remedial action by the PP are sacrosanct, however if the legal opinions sought by them indicate that they do not know the constitution. Members should know that however many legal opinions are sought, there will not necessarily be consensus and what is the Committee to do with conflicting legal opinions. He felt the Committee’s primary solution lies in itself as an organ of Parliament. He said to Dr Mulder that there is nothing being done in the Committee which is offensive to the Constitution, the Committee is exercising and performing functions as empowered by the Constitution. The same goes for the PP and the ANC respects the constitutional and legislative origins of these powers, however the report itself does not come from the Constitution. It therefore cannot be said that if the PP’s report is challenged, that this is contrary to the Constitution. Chapter Nine Institutions are independent and Parliament has a duty to uphold this, but this does not exist in a vacuum, because they are accountable to Parliament. The PP therefore did well to refer her report to Parliament, because it is the forum for consideration of matters of national interest it is Parliament. It cannot be suggested that a view on such a matter should be ‘rubber stamped’ by Parliament and at the end of the process the Committee ought to come to its own determination. Replying to Mr Shivambu, he cited the rule of interpretation that drafters of law do not intend absurd consequences and to suggest that the drafters of the Constitution envisaged the PP to have the same powers as Parliament and the judiciary would be absurd, because the Constitution created only three arms of government. Further, the source of the PP’s power includes the Public Protectors Act and it cannot be said that Parliament did not know what it meant, so why should legal advice be taken on something which it did itself. Replying to Mr Mulder he said that Mr Beukman had clearly stated that there are commonalities between the reports and if all the reports deal with the same issues, it cannot be said that one report is better than another by virtue of the office which produced the report, regard should be had to the merits of the reports and this does not guarantee a higher status for the PP’s report. He said that Mr Maimane had “already pleaded guilty to not understanding the Constitution without legal advice”, but he pointed to able Members within the Committee such as Mr Swart, Dr Mulder and himself. He was unsure whether one legal opinion could have a higher status that the collective opinion of these Members. He replied to Mr Malema, saying that he did not base his opinion on the status of the remedial action on what any particular academic says; because “when this academic graduated I think I was already a senior lecturer, having taught judges and senior counsel at UNISA”; therefore he is relying on his own knowledge of the laws gained through his doctorate of laws and admission as an attorney and advocate of South Africa. In interpreting a law, all relevant documentation should be looked at and on the remedial jurisdiction of the PP, he quoted Prof Kadar Asmal saying “an independent and impartial ombudsman be empowered to investigate certain organs of state; Parliament used the term Public Protector, rather than ombudsman because of the gender connotations”. Therefore he put forward that the drafters of the Constitution had only indeed that envisaged an investigator body. Mr Malema had contended that the use of the word take as opposed to make, resulted in the proper interpretation; however this distinction is not applicable as the PP has the power to determine remedies and recommend these to appropriate institutions. It is for these institutions to consider the remedies for themselves”. Mr Maimane had quoted the judgement of the SCA selectively and he counter-quoted “while the functions of the Public Protector include those that are ordinarily associated with an ombudsman they also go much beyond that. The Public Protector is not a passive adjudicator between citizens and the state, relying upon evidence that is placed before him or her before acting. His or her mandate is an investigatory one, requiring pro-action in appropriate circumstances”. Therefore the only additional power which the PP has is to actively investigate maladministration pro-actively. The Committee has four reports before it and they have been considered, what needs to be done is look at the merits and demerits of the remedial action recommended, to determine its own position as the highest institution for the discussion of national issues.

Mr Gardee reminded the Committee of the Resolution of the National Assembly of 19 August 2014, which refers to rule 138 of the rules of the National Assembly. This rule ensures that Committees are empowered to call people to testify or produce documents. The President failed to produce a bond to the PP and this Committee is seized with this matter making it appropriate to request the bond be produced. He said that the Committee cannot re-hash the previous meeting’s discussion and therefore suggested that the break be used to determine the availability of legal advice.

Mr Shivambu said that people should be wary of quoting your credentials, is that the risk is run of misrepresenting those qualifications and he felt Dr Motshekga has done exactly this. No one has said that the PP’s report cannot be reviewed; the submission is that Parliament is the inappropriate institution for this and can only be done by a court. He had understood when Ms Dlakude had not been able to pin point the mandate of the Committee in the face of binding remedial actions, “because he had not expected much of her; now when the doctor of laws indicates that we are not here to ‘rubber stamp’ the Public Protector’s report which we are here to receive” he is more concerned. The Committee is not to receive or review the report; on page 442 it clearly states that the President should report to the National Assembly on his actions and comments regarding the report; which is an directive to Parliament. On 19 August the House took a resolution which was read as established to do three things: consider the response of the President as directed by the PP; make recommendations where applicable, which excludes the remedial action and conduct the proceedings in accordance with rule 138, which prominently includes summoning persons to the Committee. As the matter involves a President who has unduly benefitted from construction work at his home, he needs to come to the Committee to account, particularly regarding the unanswered questions from the authors of the reports. The ANC conveniently now interprets the powers of the PP as recommendations and the way to deal with this is to seek legal advice, which Parliament does continually regarding legislation in all phases. It is accepted that there will be a divergence of opinion, but the proposition is that the findings are binding. He therefore suggested that the legal advice be sought. If post legal advice, a stalemate persists, as interested parties Members will approach the courts for a common interpretation.

Ms Kubayi said that the rules ought not to be read selectively, because rule 138 has a variety of provisions, including conducting public hearings, and does not necessarily only provide for summoning persons to the Committee. The rules should be applied where necessary and the ANC’s argument that summing testimony would have the potential to undermine the tabled reports and therefore is not necessary. Further, there is no report which indicates that the President did stole money from the public, therefore the documents should not be misrepresented and Members ought to produce evidence to substantiate their claims. She said the leopards never change their spots, and Members persist in using insults to argue even having called her argument “illiterate” and she had appealed in the previous sitting that this would not be done. On the sensitivities to threats, she said this was cautioning that if people have concluded to approach the courts, then these should be acted upon. She was not in a position to debate whether people are to go to courts and people should not attempt to do so. On legal opinions, she said their availability was not the issue and this in fact is unnecessary because the point has not been tested in a court of law. While there may be dispute about the correct interpretation, none dispute that this has not been tested by a court of law. Therefore, the impression should not be given that it is one person in the legal field which holds a particular opinion. She said that where Members are engaging they cannot be told a particular point must be accepted, there needs to be robust engagement and if no consensus is reached then this is unfortunate, but unavoidable and this is the nature of democracy. Also, it should not be mischievously suggested that the ANC Members receive a mandate from Luthuli house and therefore cannot think. The broad mandate is taken from there, because it is the party which contests elections and then deploys Members. When an election is contested a manifesto is produced and whose responsibility is it to ensure this is followed, it is the Secretary General of the ANC, who has a duty to ensure that Members do not veer away from the mandate given by the electorate based on the manifesto. “His contact and his constant communication with us is not out of line, because he has to ensure that what was promised to the constituencies is done”. She maintained that she had not been convinced by the opposition that summoning people is not tantamount to re-opening an investigation; because there have been articles where former minister Mr Geoff Doidge does not agree with the findings of the PP and he brings concrete evidence to contradict the report and how is this going to be dealt with. Members have not explained what would be done and further the Committee has reports before it and deliberations must continue leading to the Committee’s own recommendations. When Members claim that the ANC is protecting an individual that is not true, because “we have come out to look into it”. The issue remains that there is “no need to call anyone, we have the reports in front of us and even a legal opinion is not going to resolve the issue, because it is the court that can pronounce on remedial action”.

Mr Swart said there are fundamental differences in legal opinion on the nature of the remedial actions. He saw the way forward as obtaining the opinion of a senior counsel as had been done many times before and he saw nothing wrong with this. If the ANC is not happy with this then there is a court case in the Western Cape High court at the moment dealing with this very matter and this could also be decided. Members have indicated that no court has pronounced on the nature of remedial action, yet the Mail & Guardian case does provide some insight, at least in that the PP is more than an ombud. He suggested the two sides attempt to find each other, because the opposition is firmly of the view that the remedial action is a finding which can only be reviewed by the courts. He differed from the view of Dr Motshekga that the reports of the PP are different from the office of the PP, because it was clear that a report flowing from a constitutionally enshrined office ought to have a higher status. He fully supported the views by Mr Maimane, Mr Shivambu and Mr Malema that a way forward needs to be found, because it is futile to argue in circles. He asked whether the ANC would not at least concede that a legal opinion will be required. He said this was a “kairos moment” for our Constitution and implored the ANC to accommodate somewhat, lest an impasse be reached immediately.

Mr F Beukman (ANC) said that the first point is that Members of Committee cannot abandon their role under section 42(2) to keep oversight over the Executive and all the reports before the Committee aid in this effort. All the time thus far has been spent on a variety of issues and perhaps one chapter of the reports. The Committee has a duty to consider all reports and what steps should be taken and he believed this was where the impasse lay. The ANC had proposed that the Cabinet Memorandum of 2003 is the ‘gold standard’ to test the various approvals for Nkandla. He did not feel it helpful at this stage to single out a paragraph or page to be the focus of the Committee. The Cabinet Memorandum needs to looked at and the ten steps it points out be investigated. The role of the various persons must be determined according to the process. A review or an opinion is not at play, because the reports must be considered and evaluated in this context. The Committee cannot outsource its oversight function to legal experts and look at the reports with an eye for lacunas and coming up with recommendations.

Mr Maimane said “what is clear to me and very apparent is that the ANC is not going to agree to a single thing; they don’t want a legal opinion, they don’t want a constitutional review, they don’t want people to be called here. If it is going to be a read-shop then I think they must sit together and do it”. He therefore respectfully requested to exit the meeting.

The Chairperson gave leave to those who wish to leave to do so.

Mr Malema said that he is not leaving the meeting, he is refusing to be part of a process to protect Jacob Zuma.

Ms Dlakude said “as the ANC we are not media butterflies, so we are not playing to the media gallery just to sensationalise this issue, we believe that we are dealing with a serious matter and we are dealing here with the reports”. “What is expected of us is to continue the work and come up with recommendations, so that we can move forward on this matter”. She said “we know as the ANC we are not obsessed with anyone and know exactly that we are not purging anyone, we do not have a personal vendetta against anyone; we want justice to be done accordingly because of the looting and corruption which took place”.

The Chairperson indicated that according to the Rules of the National Assembly, a committee will continue to function for such a time as there is a quorum in the meeting and these clearly is such as quorum. The meeting will therefore continue with the work tasked to it. It is the right of Members to withdraw, if they so wish. This ad hoc committee will continue its work and he listened to the proposal that recommendations should not begin to be looked at, subsequent to looking at all the reports. He emphasised that at the point where the draft resolution was moved in the house, there were already stark differences in the positions taken by political parties and this manifested in the Committee. He reminded the Committee that at the first meeting to elect a chairperson similar occurrences prevented a chairperson being elected for nine days. One would expect in a constitutional democracy that the different mandates of the various political parties ought to be put across in Parliament, as this is the appropriate forum. If any Member or member of the public feels that this is the incorrect space, they are free to air their concerns elsewhere. He then declared the meeting adjourned.


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