Legal Opinion on National Council for Correctional Services appointment

Meeting report

Legal Opinion on National Council for Correctional Services (NCCS) appointment
Ms Sueanne Isaac, Legal Advisor to Parliament, presented her legal opinion on the matters of the handling of appointments by the Minister of Justice and Correctional Services, Mr Michael Masutha. The statute concerned was section 83(2)(h) of the Correctional Services Act of 1998  and whether Minister Masutha had adhered to it.

Ms Isaac stated that section 83(2)(h) was not adhered to wherein the Committee would need to have been consulted prior to the Minister's appointments. The provision required an in-consultation process and a subsequent joint decision to be made with the Committee as per the statute, which Mr Masutha did not do.

Ms Isaac referred to the legal precedent at hand and said that when a decision was made out of the required in-consultation process, the decision did not stand as there must be a meeting of minds. As such, precedent said the decision made by Minister Masutha could be declared invalid.

However, when addressing whether or not the Committee could act retrospectively to rectify the decision, Ms Isaac indicated that the statute indicated that there was an inherent prospective process and to act retrospectively now would not affect the decision. In this respect, Parliament and this Committee had no powers to change the decision that had already been made by Minister Masutha.

Ms Isaac presented the remedies available to the Committee and said that the decision may be reviewed by the judiciary but there was little that could be done outside of a due court process. The legal precedent indicated that the decision must go through a legal review process and until such a time that was contested, the decision had legal consequences and would function as if it were made within the scope of a law.

Even though the appointment process was not followed correctly, she believed that the decisions were taken in good faith and that until a judicial review process was undertaken, the National Council could function within the scope of the empowering statute until the time that the process was undertaken. The Committee had little available in the way of recourse to address the decision, and it could only be taken under judicial review. She concluded by saying it was her legal opinion that the appointments should stand because the Committee could not affect the outcome of the decision as it had already been made.

Discussion
Co-Chairperson Ximbi thanked Ms Isaac for her professional legal opinion and invited questions from the Members.

Mr W Horn (DA) said that the legal advisors were only advisors and that, as the Committee, a different opinion could be held. He did not believe there was little recourse available to the Committee because as Parliament it could make the decision to take to a judicial process, which would have effects on the decision. He questioned Ms Isaac on Section 83(3)(b) of the Correctional Services Act of 1998, which stated a decision of appointment may be terminated if the grounds for doing so were valid. Due to the fact that the in-consultation process with the Committee was not undertaken, the termination of the appointment could indeed be valid in that respect. It was up to the Committee to remedy the decision and Parliament should take the matter on review.

Mr B Bongo (ANC) asked Ms Isaac if the principle of condonation would apply in this case and if she knew that the appointments were not made on a permanent basis and that they were only temporary appointments. The fact that the appointments were temporary meant that there did not have to be support for Mr Horn's opinion as the legal opinion indicated that the decision was made in good faith and that they were now valid in the eyes of the law.

Ms Isaac replied that in terms of Section 83(3)(b), the statute was not drafted with the intention of envisaging a specific situation as such. The statute referred more to a situation where misconduct was present and not one where members would not be party to a decision of appointment. She addressed Mr Bongo and said that the principle of condonation referred to an issue of time or a material issue. It did not apply in this instance because a step was not taken in the process and it was not an issue of being late with appointments. The term of the appointees would be over soon and the only recourse available was a judicial process.

Co-Chairperson Motshekga said that the Committee had clarity and reminded Members that their responsibility was to oversee the Executive and that it would not be advisable to approach a court and neglect their duty as a Committee. The term of the appointees was about to end and by time a lengthy judicial process had taken place; the terms may have expired anyway. As Parliament, Members were the custodians of public interest and that more damage would be done if they undertook this process a month before the end of the appointees' terms, especially given that the law itself did not envisage a termination.

Mr G Michalakis (DA, Free State) said that the Committee should be cautious of creating a precedent wherein Ministers made appointments and then only subsequently conferred with the Committee. On the matter of the court application, he said it would not take as long as co-Chairperson Motshekga claimed it would take and he advised the Committee to undertake the judicial review process.

Co-Chairperson Motshekga said that the Committee should focus on its work because going to court would result in wasted expenses. The report to Minister Masutha from the Committee should indicate their discontent with the procedure.

Mr M Mohapi (ANC, Free State) said that there was little recourse the Committee could undertake and that it was not up to it to create precedents and that precedents were only used to help Members arrive at decisions so in actuality, there was no way for the Committee to pursue the issue further.

Mr Horn asked for clarification from the Department on how long the appointees term was to last going forward.

Co-Chairperson Motshekga asked that they trust the information given to one another.

Mr Horn asked if the Department could confirm the remaining time left for the appointees.

Co-Chairperson Motshekga said he could confirm the remaining time as one month.

Mr Horn responded to Co-Chairperson that he was not from the Department and that he would still like clarification.

Co-Chairperson said he had received a letter from Minister Masutha, which said, in fact, there were three months left of the appointees' term and suggested that the Committee leave it at that.

Mr Horn said the Committee may run into trouble because it was acting with knowledge of the appointments having been made out of the boundaries of the law. There might be a difference in what "powers of oversight" actually meant to different Members so he asked that the minority opinion be recorded that Minister Masutha should act more decisively in future.

Co-Chairperson Motshekga replied that Minister Masutha could choose this option going forward.

Mr Mohapi said that the Committee did not have the powers to direct the Minister and asked that the matter be concluded.

Mr Bongo said that three months was a fair amount of time for Minister Masutha to advertise the new posts and find new candidates.

Mr Horn asked that the Democratic Alliance's (DA) opposition to the matter be recorded.

Co-Chairperson said that Parliament either decided to vote to reach a consensus and that in this case, the minutes would reflect what had taken place.

Mr Horn requested that the matter be put to a vote.

Co-Chairperson Motshekga said the Committee's role was to oversee decisions and that there was nothing on which to vote.

Mr Horn said if communication had been made with Minister Masutha, then an implicit decision had been made. He asked again that the DA's opposition to this be recorded.

Co-Chairperson Motshekga said the Committee would refer the legal opinion to Minister Masutha and then decide how to move forward.

Mr S Thobejane (ANC, Limpopo) said the Committee had deliberated enough and that they would stand by that decision and forward the recommendation to Minister Masutha.

Mr Michalakis responded that non-action was dangerous and that there was no broad agreement by the DA with the rest of the Committee and he demanded that the co-Chairpersons grant a vote.

Co-Chairperson Ximbi asked if the DA was opposing for the sake of it after having heard the legal opinion. He said the Committee could not force Minister Masutha to do anything.

Ms C Pilane-Majake (ANC) said the Committee came together to listen to the legal opinion and asked why Members would need to vote when the meeting was only administrative.

Mr Michalakis said there was no unanimous decision made in the Committee and asked that the opposing view be recorded.

Co-Chairperson Motshekga reiterated that the Committee made joint decisions and that they would await Minister Masutha's response.

Mr Horn asked that the Committee advise Minister Masutha to exercise his powers in accordance with Section 83(3)(b) of the Correctional Services Act 1998.

Mr Michalakis seconded Mr Horn's proposal that Minister Masutha use his powers in accordance with Section 83(3)(b) of the Correctional Services Act 1998.

Ms Pilane-Majake indicated that Mr Horn was trying to sum up their view and asked that it be recorded.

Co-Chairperson Motshekga indicated yet again that the Committee could not tell Minister Masutha what to do.

Mr Horn asked that the proposal be recorded because it was seconded and the rules of Parliament provided for this.

Mr Mohapi reiterated that the legal opinion had been given and now there was little recourse for the Committee at that time.

Co-Chairperson Motshekga thanked the Members for their input.

The meeting was adjourned.