Nobuntu Fuzane, Love Knysna & Mantsopa Petitions

NCOP Petitions and Executive Undertakings

13 September 2017
Chairperson: Mr M Mhlanga (ANC; Mpumalanga)
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Meeting Summary

The Committee met to consider and adopt the Nobuntu Fuzane Petition Report, the Love Knysna Petition Report, outstanding minutes from previous meetings, and to table Executive Undertakings for future consideration.

Disagreement over the Committee’s right to pursue some of the recommendations in its Nobuntu Fuzane petition report, led to a walkout by DA Members, who argued that they were a clear violation of the separation of powers. The petition had been submitted by Ms Fuzane on behalf of her daughter, Tamara, who had raised complaints against Groote Schuur Hospital and Khayelitsha District Hospital (KDH) concerning mistreatment experienced by Tamara at both hospitals in 2011 and 2014.

The DA argued that the Committee could not tell the Directorate of Public Prosecutions (DPP) what to do, as that would be a violation of the separation of powers. It was important to note that the prosecutor had not pursued the case because of a lack of evidence. The Treatment Action Campaign (TAC) had also gone further and said that because of the lack of evidence, they could not do anything. Now the Committee wanted want to make recommendations that went against the DPP and against all these findings, wasting the petitioner’s time even further. The Committee had established that the health ombudsman was an appropriate forum. The petitioner should have come to the Committee only after all other available avenues had been exhausted.

The EFF countered that this matter was more personal than political. When the Committee made recommendations, it had to keep in mind that it was dealing with a mother who had lost a child and saw Parliament as the last resort to find relief from the pain she had gone through. The Committee had to make sure that whatever it decided was the best legislatively and ethically.

An ANC Member supported the Committee’s recommendation that the case should be reopened. He proposed that the Committee should take the matter back to the police and the prosecutor. If there was insufficient evidence, the Committee could assist the petitioner. He was not saying that it was not good to take the matter to the health ombudsman, but even he would not do justice to it. The Committee needed to make a recommendation to help the mother.

The Committee consolidated its recommendations, adding that it wished there to be further investigation into the reluctance of the head of the provincial Department of public health to require implicated medical personnel to appear before the Committee, and that there should be a report back within 90 days.

The Committee decided to refer the Love Knysna petition report to the Public Protector, after hearing that submissions were continuing to be made. It asked for a feedback within two months.

The executive undertakings were tabled, and outstanding minutes were adopted.

Meeting report

Adoption of agenda

Mr M Mohapi (ANC, Free State) said that the agenda was overpopulated and that it would be impossible to do justice to all the items. In future, the agenda should be spread over a longer period of time.

Mr G Michalakis (DA, Free State) agreed with Mr Mohapi. He asked whether there was sufficient time to hear the Mantsopa Petition, and whether the report was actually ready to be considered, reminding members that he had been absent from the hearing. He also argued that the Committee did not have the jurisdiction to hear any of the petitions on the agenda. Numerous other forums had to be approached first. The Committee should only hear petitions that fell within the powers of the National Council of Provinces (NCOP), and the petitions on the agenda did not fall within the Committee’s jurisdiction. This was particularly true for cases that were before bodies like the Public Protector and the Courts. The Committee was overstepping its powers. Mr Michalakis said he could not agree to discuss agenda items over which the Committee had no jurisdiction.

Ms G Manopole (ANC, Northern Cape) also agreed that the agenda was overloaded with items. In response to Mr Michalakis, she stressed the importance of completing the work had been started. The Committee had already engaged with the petitions and should deliberate on them to finish the work.

The Chairperson acknowledged that the agenda was overpopulated, and that many documents had been circulated. The items had been added to the agenda to emphasise the amount of outstanding work. This meeting should consider and adopt the Fuzane Petition Report, the Love Knysna Petition report, and the outstanding minutes. The executive undertakings would only be noted and acknowledged, and would be considered at the next meeting.

Responding to Mr Michalakis’s question about the Mantsopa Petition, he said that it had been listened to, and had been added to the agenda for consideration in order to draw up a draft report as soon as possible. Making recommendations and resolving the petition speedily was important, because it had been with the Parliament since 2010. The Committee would decide whether further follow-up on the petition would be necessary.

Mr Mohapi asked for more clarity about the Committee’s stance on matters that were before the Public Protector or the courts. While the principle of separation of powers was important, a blanket approach may not be appropriate as certain matters might be before the Public Protector or the courts for reasons that were not relevant to the Committee. He also stressed the importance of Section 72 of the Constitution, particularly the obligation to facilitate public involvement in the legislative and other processes of the Council and its committees. In this context, doing justice to the Mantsopa Petition was important, and if the Committee did not have sufficient time to consider the concerns of the petitioner, another hearing should be organised.

Considering the question about the jurisdiction of the Committee, the Chairperson said that the Committee was constituted through Section 103 of the Parliament and mandated by the NCOP to deal with petitions that had been submitted to the Parliament after having exhausted all other avenues. Issues that were still with the Courts could not be dealt with by the Committee. However, the Committee had proposed a Bill regarding the separation of powers that should be tabled to the House, and had developed guidelines through the legal department to determine what matters fell within its jurisdiction. He did not see the Committee as overstepping its powers, particularly because any departments that were implicated in a petition were notified by the Committee. If there was disagreement about this, the Committee would need to seek legal assistance.

Mr Michalakis responded that he would no longer engage the Committee on the matter of jurisdiction, and would instead take it to the appropriate forum. The Committee had been forced to act outside of its jurisdiction, but refused to see the point of the concern that had been raised on numerous occasions. He requested that his concerns regarding the jurisdiction of the Committee be officially noted in the minutes.

Mr Mohapi responded to Mr Michalakis, and referred him to Rule 235 of the NCOP regarding the referral of petitions received by a committee. The Committee could make recommendations and refer petitions to other bodies, but a general approach would be impractical.

Mr Michalakis agreed with Mr Mohapi, and said that the Committee should not take all issues upon itself as if it were able to solve all the problems. The Committee should only take on matters that related to the NCOP, such as Section 76 legislative proposals. Any matters that were beyond the Committee’s powers and fell into the jurisdiction of the Public Protector, the courts or provincial and national departments should be referred the appropriate body. The Committee had a duty of cooperative governance, but failed to fulfil that duty because it did not refer petitions to the appropriate bodies. Referring to the appropriate bodies would also save petitioners time and effort.

The Chairperson acknowledged the contributions made by the Committee Members, and responded to questions of jurisdiction. The guidelines that had been developed together with the legal department, indicated that any petition that the Committee dealt with must first have exhausted all levels of jurisdiction. He pointed out that petitions that were considered by the Committee were referred to it though the House Chair, and stressed that the officials that were examining and prioritising petitions verified their legality before referring them to the Committee. Thus, the Committee was not overstepping its powers. At a strategy planning meeting, it had once been requested that an additional official screen petitions before they were referred to the Committee, but the NCOP Chairperson had responded that the Committee had sufficient staff to deal with petitions.

The Chairperson asked to Committee to adopt the agenda, but assured Members that they would further engage on matters of jurisdiction and legality.

The Committee adopted the agenda.

Nobuntu Fuzane Petition Report

The Chairperson suggested proceeding straight to the recommendations on the Fuzane Petition. At the previous meeting, some questions had been raised and it was resolved that before the Committee could adopt the report, more information on the questions was required.

Firstly, there was the question of whether Tamara’s assault had come before a magistrate. There had been some confusion regarding this question, as Dr Anwar Kharwa (CEO of Khayelitsha Hospital) had mentioned that he had appeared before a magistrate. However, it was likely that the terms ‘magistrate’ and ‘prosecutor’ had been confused, as Dr Kharwa had appeared before the prosecutor who had decided not to pursue the case because of a lack of evidence. Tamara’s assault, therefore, had not come before a magistrate.

Secondly, it had been asked if the Treatment Action Campaign (TAC) had been involved in assisting Ms Fuzane with the complaints of her petition. It had been found that the TAC had backed off after the prosecutor decided not to pursue the matter.

Finally, Members had asked whether Ms Fuzane could refer the petition to the health ombudsman, and it was determined that she could indeed raise her complaints with the ombudsman as he was taking complaints from members of the public.

A further concern had been raised by Mr D Ximbi (ANC, Western Cape) regarding the absence from the report of the statement by the doctor that had examined Tamara. The statement had now been added to the report.

Ms Manopole raised a concern regarding the organisation of the document provided. The report was not user friendly, and dividers should be added to improve the clarity of the contents.

Mr Mohapi agreed with Ms Manopole, and added that there was a need for a system to track the resolutions adopted by the Committee. A simple checklist that indicated what issues had been raised and what progress had been made would simplify the work of the Committee, as it would avoid repeatedly dealing with the same matters.

Ms Manopole agreed that a document that highlighted what amendments had been made and what was still outstanding would be valuable. The full document should be distributed only for reference, but would not have to be read through in its entirety.

The Chairperson took note of the suggestions made, and agreed that a tracking system would be useful and would be developed. He suggested moving to the discussion of the recommendations of the report.

Mr Michalakis said that what the Committee had before it was a case which had been before an external panel. Before it went to the Directorate of Public Prosecutions (DPP) it had gone through a police investigation that compiled the docket. The Committee could not tell the DPP what to do, as that would be a violation of the separation of powers. However, it was important to note that the prosecutor had not pursued the case because of a lack of evidence. The TAC had also gone further and said that because of the lack of evidence, they could not do anything. Now the Committee wanted want to make recommendations that went against the DPP and against all these findings, wasting the petitioner’s time even further. The Committee had established that the health ombudsman was an appropriate forum. The petitioner should have come to the Committee only after all other available avenues had been exhausted.

Mr Michalakis suggested that instead of giving extensive recommendations, the Committee simply and practically recommend the petitioner be referred to the health ombudsman. This way the Committee would overstep its powers and the petitioner would be referred to an appropriate body that could give her relief. He would feel seriously uncomfortable about going directly against the findings of the DPP and their evidence. He strongly recommended that the Committee tell the petitioner that she would most likely get the most effective relief from the health ombud, and await the response of the health ombud.

Ms T Mokwele (EFF) said this matter was more personal than political. When the Committee made recommendations, it had to keep in mind that it was dealing with a mother who had lost a child and saw Parliament as the last resort to find relief from the pain she had gone through. The Committee had to make sure that whatever it decided was best legislatively and ethically. The court had decided the case could not be prosecuted because of a lack of evidence, so was there legislatively any way the Committee’s recommendation 8.2 could be legally binding? She was wondering about the legal implications of this recommendation. Could the Committee recommend that the petitioner reopens the case given the additional new evidence, and could the Committee assist further, rather than merely referring the petitioner to the heath ombudsman?

Mr Ximbi agreed with Ms Mokwele. There was no report stating there was insufficient evidence. The Committee had written a letter to the prosecutor for an explanation as to why they had not prosecuted. There was no proof that the prosecutor had found that there was no evidence. The prosecutor had refused to come, arguing that he did not report to the Committee. Although evidence from doctors existed, staff from the hospital come to Parliament and misled the Committee. Even the forensics indicated the lady had been beaten.

Ms Mokwele, on a point of order, requested that Mr Ximbi should not be personal about the matter. She knew that he somehow had a connection to the petitioner’s family, but he should not take it personally.

Mr Ximbi said the case should be reopened. He proposed that the Committee should take the matter back to the police and the prosecutor. If there was insufficient evidence, the Committee could assist the petitioner. He was not saying that it was not good to take the matter to the health ombudsman, but even he would not do justice to it. The Committee needed to make a recommendation to help the mother.

Mr Mohapi asked if it was possible to reopen the case. Any case could be reopened if new evidence came up. If there was more information that could consolidate the case, he did not see any harm in reopening. However, the Committee’s 8.2 recommendation only recommended opening the case and finalising the investigation, but did not elaborate. It needed to indicate what was prompting the request to reopen. The rationale for reopening must be clear.

Regarding the idea to just refer to the health ombud, it was very clear that there were still more questions than answers. Considering this, the Committee could not simply refer to the ombudsman. If it recommended reopening, it must be clear about the rationale, such as statements had not been obtained from the nurses, and the medical staff at Khayelitsha District Hospital had not explained the reasons for Tamara’s admission. If initially those issues had been overlooked, this was some of the evidence that could justify reopnening the case, and the Committee could refer it to SA police. The Committee needed to tabulate the reasons for its recommendations. In recommendation 8.6, the petitioner had been encouraged to report the complaints against Groote Schuur Hospital and Khayelitsha District Hospital to the health ombudsman. If that Committee was approached and told that it was the last resort, it could not simply say, ‘do it by yourself.’ It was the Committee’s responsibility to refer the matter on behalf of that person.

Ms Manopole agreed that the section on the recommendations should be amended so that they did not indicate that the petitioner should simply pursue the matter herself. She suggested that the issue could be referred to the Independent Police Investigative Directorate (IPID) to review the police’s conduct.

Mr Michalakis said he wanted to respond to some notes that had been made about the relief to the mother. He agreed that there was an obligation to treat the mother with the necessary sensitivity. However, the Committee’s recommendations were only recommendations. None of them were legally binding, and there was a good chance they would be ignored. If the bodies involved ignored them, then the recommendations would not bring relief to the mother, and that was not treating the mother’s loss with sensitivity. The Committee could either refer to body that could give her closure, or it could make hollow recommendations. He preferred the former.

 

There had been the issue of the prosecutor not answering to the Committee -- the principle of the separation of powers. If Members did not understand that, it was a serious cause for concern. It had been said that the investigation had not been completed, but the Committee was not able to handle an investigations like this, the ombudsman would be able to handle it, and the Committee should therefore refer this to the ombud. The referral of this matter to the IPID was another matter of concern, as this would indicate that the Committee had no trust in the work of the police and prosecution, and he did not want be part of that.

He argued that some of the recommendations that this Committee was wanting to make were a clear violation of the separation of powers. In light of that, and also because this was not the best way to deal with the mother’s loss, he had an ethical objection to the workings of the Committees. He therefore asked to be excused from the meeting.

He left the meeting, accompanied by Mr M Chetty (DA, KwaZulu-Natal)

Ms Mokwele said that the conduct of the DA members was unacceptable. The Committee was dealing with a matter involving a black person, and the reluctance of white monopolies and the members of the DA were not assisting the affected family to find closure. Members knew the principle of the separation of powers, but in terms of the Constitution the Committee had the right to summon anyone and demand explanations. It knew that the prosecutor was not responding to it, but it was entitled to ask for clarity. She asked for it to be clearly recorded that the Committee was not happy with the DA’s conduct. They had never assisted the Committee in getting this matter to closure, and had been arrogant and disrespectful. She considered it a racial issue, and wanted it to be recorded as such.

She said she agreed with the points other Members had. She had worked with social workers, and when they made recommendations for foster care, most of them had been rejected because of the way in which they were tabled. A third party must have a sense of what the Committee wanted to say, so it must be easy to understand. She suggested the recommendations should be rephrased.

Mr Mohapi proposed proceeding straight to the recommendations. The recommendations in 8.4 and 8.5 should be incorporated into recommendation 8.1, and the Committee must indicate that it wished there to be further investigation into the reluctance of the head of the provincial Department of public health to require implicated medical personnel to appear before the Committee. Recommendation 8.2 should refer to IPID and the NPA, and 8.3 to the health ombudsman.

He said the Committee had to decide on the timeline.

The Committee decided that 90 days would be appropriate to receive a progress report.

The petition report was adopted with amendments.

The Chairperson said that after the report had been drafted, he would send it to Members for consideration.

Love Knysna Petition Report

The Chairperson said the Committee kept on getting new information from the petitioners. He wanted to conclude the matter. There was a need to study the evidence to see if there were any loopholes. He asked the Committee’s Content Advisor to remind the Members about the issues involved.

The Content Advisor said that there had been three hearings on the matter. Mr Mike Hampton, an activist, had raised four complaints against the Knysna Municipality. These related to the alleged illegal funding of Knysna Tourism, a conflict of interest matter involving the town’s Integrated Strategic Development Framework (ISDF), disciplinary proceedings against the municipal manager, and the blocking of communications.

There have been three hearings around the Love Knysna Petition Report. When it was originally submitted, Mr Mike Hampton (petitioner, Love Knysna) had four complaints against the Knysna Municipality by Mr Hampton. He alleged that the municipality illegally funded Knysna Tourism, illegally appointed Mr Grant Easton (Knysna Municipal Manager) and that the municipality blocked communication from him. The final complaint was about the awarding of the Integrated Strategic Development Framework (ISDF) tender.

The municipality attended the second hearing and made submissions in relations to the complaints. The municipality indicated that Knysna Tourism was provided a grant in aid and that Mr Easton was appointed because he was the most suitable candidate. The municipality confirmed that emails from Mr Hampton had been blocked because he was submerging the municipality with emails, but also stated that the block has since been lifted. Regarding the ISDF tender, the municipality assured that matter was being investigated by the Provincial Department of Local Government.

Since then, further evidence was presented to the Committee by Mr Hampton. His submissions were supplemented with contributions from Ms Susan Campbell (witness, Love Knysna) who spoke about the ISDF tender, the appointment of Mr Easton and the agreement between the municipality and Knysna Tourism.

Mr Mokwele commented that he had followed Mr Hampton on Facebook, and had found that he wrote about many issues. However, one could forever bring new information and harass people. This matter had been before Parliament for a very long time, and maybe there was a frustration. He was not sure how best the Committee could address the issue. Clarity was needed.

Mr Mohapi said there was a procedure when referring matters to the Committee, and any new information or submissions should be put through the internal procedures. However, a number of presentations had been made, and the Committee could not continue operating “like a yoyo.” He

recommended that the issue be referred to the Public Protector. The Committee should also register its concern about the reluctance of the Provincial Office of the Public Protector to engage with the matter. A progress report should be returned within two months.

Another ANC member agreed with Mr Mohapi and noted that some of the matters, like the one about the ISDF tender, are still before the Public Protector. She said that according to the Committee’s guidelines, if a matter has already come before another body, the Committee can not overturn that body’s decisions.

The Chairperson said the matter would be referred to the Public Protector, who must respond to the Committee within two months.

Mr Mohapi added that it must be made clear that the Committee was now taking the issue seriously.

The Committee agreed to refer the petition to the National Public Protector and to copy the provincial office into the referral.

Adoption of minutes

Outstanding minutes from 31 May and 7 June 2017 were adopted.

Outstanding minutes from 21 June 2017 were adopted after a minor amendment proposed by Mr Mohapi.

Executive undertakings

The Chairperson advised Members that the executive undertakings were merely being tabled for noting, and would be deliberated on later.

These were Executive Undertakings made by the Minister of Social Development during the House and Executive Undertakings made by the Minister of Small Business during the House.

Mantsopa Petition

The Chairperson said that the Mantsopa Petition was also just for tabling at the meeting, with the observation that not enough information had been provided, and stakeholders would be called to Parliament to account.

Mr Mohapi asked whether it would be better to invite stakeholders of the Mantsopa Petition to Parliament or for the Committee to visit them. He noted that even during local visits there is often insufficient time to do justice to the submissions.

The Chairperson responded that at a previous meetings stakeholders were informed that they would be invited to come to Parliament, but that decision was not definite. Either way, a meeting should be scheduled as soon as possible.

Mr Ximbi agreed that, during local visits, there is often insufficient time to consider all contributions. He suggested taking an entire day to consider submissions, so as to have enough time.

Ms Manopole added that the programme should not be clustered and that the amount of work that is required must be taking into account when drawing up a programme.

Mr Mohapi said that he believes it would be best to organize a local visit and take enough time to do justice to petitions.

Ms Mokwele agreed and suggested allocating particular days do particular issues, so as to make sure to have sufficient time for consideration.

After this discussion, it was recommended that the Committee should conduct an oversight visit so that it could do justice to the petition and complete the work involved.

The meeting was adjourned.

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