Public Protector removal request; Deputy Public Protector alleged misconduct

Meeting report

Suspension of magistrates
The Chairperson noted that certain magistrates had to be removed but when the Committee had previously met, the Members had not received the documentation so, although a decision had been taken in principle to approve the recommendations, the Committee had to make a final decision on the matter. Members had to make their decision based on their reading of the documents and take informed positions. The first point was to establish that Members had received the documentation timeously and had studied the documents to be able to apply their minds and take informed decisions.

Ms Mothapo informed the Chairperson that some of the Members had not received the documentation from the Magistrates’ Commission. They might, therefore, be unable to make an informed decision, although they had approved the matter, in principle, the previous week.

Mr Horn stated that, while he could not speak for everyone, he had received the documentation by email from the Committee Secretary on 13 October 2017, 12 days previously. He suggested that there was a possibility that Members’ emails were not working, or that the Secretary had sent it selectively, which was unlikely. He had perused the report, and the inefficiencies in the initial report, had, in his view, been addressed in the updated reports.

Mr Mpumlwana had not received the documentation.  He had assumed that the documents would have been in their letter boxes, but he had not seen them there.

Mr Horn did not want to go into why some people received copies and others did not, but he suggested that the Committee Members receive hard copies during the meeting, and, if necessary, sign for them.  The Committee would then have to decide on a time to deal with the matter.

The Chairperson felt that Mr Horn’s recommendation was most constructive and determined that when there were important issues, Members should receive hard copies to study them. The Committee should not only rely on mechanical, digital copies. The Committee had a lot of documentation to handle.

Ms Breytenbach agreed with the Mr Horn’s proposal but she had the email open in front of her and she noted that all Members of the Committee had been emailed. It was, therefore, strange that some Members had it and others did not have it.

Mr Maila agreed with the proposal by Mr Horn and that the matter should be postponed.

The Chairperson stated that he wanted to save Parliament’s time and not deal with academic matters but it was important that Members studied the documents and applied their minds. They could not make serious decisions. The proposal was that Members should be given hard copies which they would study and apply their minds to and be prepared to take decisions that they would not regret later.

Ms Pilane-Majeke agreed that the matter be postponed.

The Chairperson noted that the matter was scheduled for 1 November but the onus was on each person to acquire and study the documentation so that decisions could be taken. He thanked that the Members of the Committee for their cooperation.

Ms Breytenbach suggested checking emails to avoid a similar situation in the future.  The Chairperson was not inclined to behave like a school prefect.  The Members knew their responsibilities.

Request for National Assembly to institute removal proceedings against the Public Protector
On the matter of the inquiry relating to the fitness or otherwise of the Public Protector to hold office, the Chairperson noted in the previous meeting, he had indicated that he would recuse himself from the discussion.  However, he had since studied the documents and he believed that there was no basis for him to recuse himself so he would chair the meeting.

On the matter of the Public Protector, he hoped that the Members had studied the documents. On the first occasion (10 October 2017), the Committee had decided that the Portfolio Committee was the correct forum to deal with the matter, and not an ad hoc Committee. He had studied the documents and, after applying his mind, he agreed with the Committee. The matter was properly before the Committee.

Ms Breytenbach asked the Chairperson what format the process would follow.

The Chairperson said he assumed that everyone had read the referral and the Committee Members had to assess the content of that referral and see whether the referral had substance.  If it did not have substance, then the Committee would take that decision.  The question was whether the referral had substance.

Ms G Breytenbach (DA) requested that the Committee call witnesses, as the Committee was entitled to do. The matter could not be disposed of on the basis of the referral. She held the view that the Committee should hear the complainant in the matter and so he should be called as a witness and the Public Protector should have the right to respond. 

The Chairperson stated that the Member was putting the cart before the horse. The Committee had yet to establish the validity of the referral. He had to hear what Members were saying. One could not just start calling witnesses.  The Committee had also to consider the Rules of Parliament.

Ms Breytenbach stated that the Rules of Parliament allowed Committees to call witnesses, which was why she had put the request.

Mr W Horn (DA) said that it seemed that the Committee was back to square one. The cover letter said that the matter had been sent to the Committee for consideration and reporting.  The letter also referred to the request from Mr Steenhuisen for the institution of removal proceedings according to Rule 337(b) and Section 194 of the Constitution, as well as the Public Protector’s Act. He noted that the Committee had considered the referral from the Speaker and that the Committee was the appropriate forum to deal with the proceedings. The Committee was at a point where it had a referral from the Speaker and an instruction to deal with the matter. Members had previously determined that, because of the dense programme, the Committee could sit on non-working days. It seemed that the Chairperson’s process to determine whether there was substance was taking the Committee back.  There was a sense of déjà vu of the manner in which the Public Protector’s Report on Nkandla had been dealt with, which had basically boiled down to a make-believe process of dealing with the matter. He reminded the Committee that in that matter, the highest Court in the land had ultimately found Parliament hopelessly wanting in dealing with the matter. It had found that Parliament had failed to fulfil its constitutional duties.

He added that the Committee had taken a decision to deal with the matter and it could not go back or dispose of the matter only on the basis of the letter that had initiated the process. Members needed a process for dealing with the matter.  To make a decision based only on the letter of referral, would expose the Committee, hopelessly, to another finding that it had not dealt with a matter in a proper manner.

The Chairperson stated that he was not the Committee: he was the Chairperson of the Committee, and so he would listen to what the Members had to say. Mr Horn was correct in stating that it had been decided that the Portfolio Committee on Justice and Correctional Services was the correct forum for considering the matter against the Public Protector.

Mr S Swart (ACDP) recalled the previous discussion which the Committee had had. The discussion had been about which was the appropriate Committee to deal with the inquiry. Members had suggested an ad hoc Committee for the inquiry. There had been a caucus followed by a vote, and it had been decided by a majority vote that that Committee would undertake the inquiry, so now the Committee had to decide how to embark on the inquiry in term of the Rules. Otherwise, the Committee had to take a vote to revoke the previous decision which had been minuted. It had been widely reported in the media that the Portfolio Committee for Justice and Correctional Services would undertake an inquiry, having discussed sitting on extra days, so that it could embark on an inquiry. The Committee had to engage on the format of the inquiry. He had a very clear understanding of the decision that had been taken.  The words used at all times were that either an ad hoc Committee or that Committee would undertake an inquiry based on the letter of referral. He was very clear on that aspect.

The Chairperson said that his reading of the situation and the documentation was that the Committee could not start from the premise that it was holding an inquiry. The matter had to be taken step by step. The first step would be to look at the Rules of Parliament and to say whether there was a need for an inquiry.

Ms C Pilane-Majake (ANC) agreed that Members were correct that the Committee had to decide on processes on how to move forward with the matter, without going all over the place in talking about cases that had never been put to the Committee.  Mr Swart had stated that when the Committee had voted, it was to agree that that Committee was the right forum to conduct an inquiry into the matter. She had to correct that point. When the study group had gone out from the meeting, it was to consider whether that Committee was the right forum to discuss the matter. They had agreed when voting that, as an oversight Committee, the Committee had to look into the matter. They had not agreed to deal with the inquiry. The Committee was the oversight Committee for the Public Protector and so any matter dealing with the Public Protector had to be dealt with by that Committee. What was important, was looking into the matter to give the matter direction.

The Chairperson stated that uppermost in their minds had to be the applicable Rules of Parliament.

Mr M Maila (ANC) agreed with Ms Pilane-Majeke that the Committee had agreed that the Committee was the right forum to deal with the matter. He agreed that Members could not put the cart before the horse.  It was time to look at the matter. The Committee had to start by determining if there was any basis for an inquiry.

The Chairperson said that Mr Maila had confirmed what he had said. The Committee had to decide whether there was any need or basis for an inquiry before the discussions were all over the place. That was the question to be addressed.

Ms Breytenbach stated that, looking at the referral from the Speaker, it was quite clear that the Speaker had the intention that the matter should be referred to the Portfolio Committee for Justice and Correctional Services for consideration and reporting. She suggested that the Committee deal with the matter in terms of Rule 167 of the Rules of Parliament that the Committee had the right to summons anyone to appear before the Committee or to produce documents. Section 194 said that the Public Protector could be removed on the grounds of incompetence, misconduct and incapacity. Mr Steenhuisen was alleging serious issues and serious allegations were contained in his letter. She urged the Chairperson to give serious consideration to the Rules and the Constitution, and to bear in mind that the Committee could not dispose of the matter, even by deciding whether or not there was a matter to be pursued, without hearing evidence. 

The Chairperson pointed out that Mr Maila had said that there had to be a basis for action and Ms Breytenbach had not addressed the basis for action.

Mr S Mncwabe (NFP) as a new Member requested clarity as he had not been at the last meeting. But he understood that the previous meeting was to determine the forum to hear the matter of addressing the question of whether there was a need for an inquiry.  The Committee was wasting time in terms of not addressing that question.  The decision on whether or not an inquiry was required, would provide the way forward. The next step would be about the process and Rules to be followed. However, if the majority decided that there was no basis for an inquiry, that would be the end of the matter and could be reported as such. The Committee was delaying matters by not addressing the question. His party was interested in the question that had been asked.

The Chairperson said that Mr Mncwabe was confirming what Mr Maila had said. There had to be a need and a basis. There might be a need, but no basis.

Mr N Matiase (EFF) said that Mr Mncwabe’s concern was partly addressed in that the question of the appropriateness of the forum to look into the matter had been determined. The Committee had voted for it. Those who had been defeated had accepted the decision with humility. Whether there was a case to be answered should have been the first question answered, even before the question of the forum.  The question of Mr Maila was misplaced because it was not about his views and opinions, but about whether the Committee should do the right thing, which was what Ms Breytenbach had proposed.  The Committee had to lay out, on the basis of the Act, the Constitution and the Rules of Parliament, a roadmap to deal with the matter.  The Speaker had made it clear that the matter had to be addressed. It was not for the Committee to ask whether there was a case to answer or not. There was an attempt to push the matter under the carpet as if it did not deserve consideration. The Committee had to lay out the roadmap as proposed by Ms Breytenbach.

The Chairperson told Mr Matiase that the Constitution and the Rules were applicable on a general basis.  The Committee could not just create a roadmap.  It had to address the need and the basis.

Ms M Mothapo (ANC) stated that when the Committee had met for the first time, the Committee had agreed to look into the referral from the Speaker; the Members had not agreed to hold an inquiry. Members were saying that the media had said the Committee was holding an inquiry. She reiterated that they had never resolved to hold an inquiry.  She believed that the Members of the DA had more information than the Committee had been given as they wanted to call witnesses. She knew that they had resolved to take action. There was no need to hold an inquiry as there was no substance. It was just politicking.

The Chairperson reminded the Committee to pay attention to the referral which stated that the Committee had to “consider” the matter, which meant to look into it. He thanked Ms Mothapo for reminding Members of that point.

Mr L Mpumlwana (ANC) said that the Committee had, firstly, to show some prima facie evidence, and the DA Members could perhaps provide assistance in that regard. Then the Committee could come up with a decision on the matter, before they started calling witnesses. The letter had come from the DA Chief Whip and therefore the DA Members in the Committee knew about the matter.  The Committee was dealing with the very important matter of the Public Protector. The process of appointing the Public Protector, only a year previously, had been lengthy and everyone had been involved. The removal of the Public Protector could only take place on the grounds of misconduct, incapacity or incompetence. If there were a case with prima facie evidence and a cause to look into, then the Committee could answer the question of whether there should be an inquiry. The DA should be given a chance to put the case and then the Committee could look at the question of an inquiry.

Mr Swart did not want to belabour the issue.  It was easy to find out what the resolution had been at the last meeting because it was on record and had been taped. He suggested that the meeting take a step back and find out exactly what was the resolution because he was very clear that the decision was that that Committee, as opposed to an ad hoc Committee, should conduct the inquiry. It was on tape and so the Committee should establish it as a fact. Why else would the Chief Whip of the ANC criticise the members of that Committee for deciding to hold an inquiry? Had the decision merely been to consider the matter, there would have been no objection from the Chief Whip of the ANC. On a point of process, it was very important to establish what had been the exact decision of the Committee. If he were correct, then before the Committee could continue, it would have to undo that decision. It would have to be revoked. The meeting should listen to the tapes. The meeting should be adjourned until there was clarity on that issue.

The Chairperson said that he was guided by the Constitution and the Rules of Parliament, not by what anyone outside of the Committee had said. When he had summarised the meeting, he had said that the Committee was considering whether or not that Committee was the appropriate forum and the vote was on the correctness or otherwise of the forum and no other issue. Having established the matter of the forum, the Committee now had to address the referral which stated that the Committee should, in simple English, look into the matter. So, there was no need to adjourn the meeting or do anything else.

Ms Breytenbach referred the Chairperson to the letter from the Speaker. They all agreed that the second paragraph stated that the Committee should consider the matter. The instruction to be followed was that the matter was for consideration and reporting. It implied that it was necessary to deal with the matter in a rational fashion.  She referred the Chairperson to Mr Horn’s discussion about the merits in the Nkandla judgement. The Committee could not decide the merits of the case on the basis of a letter. The letter was what had started the process; it was not the process. The complaint could not be decided upon on in a loose standing, ad hoc and irrational way. It was implicit in the Speaker’s instruction that a rational process had to be followed. That implied that the Committee would give the complainant an opportunity to present his views and equally give the Public Protector an audience and hear her views. That was the very least that would qualify as a rational process. To try and shut the matter down by deciding whether there was a complaint made out in the letter or not, was irrational and could not be done.

Ms Breytenbach warned the Members to remember the Nkandla judgement. The Committee did not want to be found wanting and in dereliction of its duties again. There was a body of public opinion and evidence that supported the letter of the Chief Whip. If any Members said that they were unaware of it, then they were living under a rock. They all knew that the Public Protector had agreed that she had overreached her mandate by instructing that Committee to change the Constitution and telling the Committee how to do it. Deciding whether or not there was a complaint to be made, was irrational. It was a Committee on Justice and they were all lawyers and so, if they wanted to be taken seriously, they had to deal with the matter rationally, which meant hearing witnesses.

The Chairperson attempted to continue but Ms Breytenbach indicated that she was not yet done. If the ANC wanted the DA to set out what was out there to support the complaint, she would be happy to go through the list.

The Chairperson stated that Members should listen to one another.  Mr Maila had correctly said that it had to be decided whether there was a basis for an inquiry and so he had directed Members to address the Committee on that matter. Before the Committee had settled that matter, Members could not apply all sorts of tests to the matter before them. Mr Maila had guided the Committee on the matter.

Mr Horn wanted to address the Committee on what had been decided the last time around.  It would have been strange if an ad hoc Committee were to have been set up only to decide whether there was a complaint. After the debate and vote, it was decided that that Committee was the proper forum to deal with the complaint.  Only Mr Bongo, who had since been appointed as a Minister, had intimated that there was not a case to be made out. All other Members had debated only whether it should be that Committee or an ad hoc Committee that would deal with the matter. Accurate minutes would reflect precisely that. If there had to be a decision of whether there was a case to be determined, it would be highly irrational to do so without hearing witnesses.  Mr Horn gave the Committee a friendly, but firm, reminder that in order for the Members to decide if there was indeed a case to be answered by the Public Protector, the only proper manner was to at least set up a meeting where Mr Steenhuisen could unpack his complaint and then the Public Protector, who would have been present, could be given the opportunity to rebut the allegations. For the Committee to decide on its own whether there was a case or not, was not due process.

The Chairperson stated that he would make the determination after hearing all Members but he wished to repeat that Mr Maila and Mr Mncwabe had, correctly, in his view, said that the first question to be decided was whether there was a basis to hold an inquiry. That decision could not be taken not on the basis of what someone else who was not in that meeting would tell the Committee, if he were to come to the meeting. The question could only be decided on what was before the Members.

Ms Pilane-Majeke stated that the Committee simply had to decide whether there was any basis for looking at the matter. Members had voted at the previous meeting on the matter of whether the Committee was the right forum to deal with the matter. Those were the words that had been used. Whoever wanted to go and look at the transcripts, could do so. They kept telling Members that it had been about deciding whether the Justice Committee was the correct forum to deal with the matter.  Despite what Mr Horn had said, there had at no time been any reference made to an ad hoc Committee. He had preconceived ideas that he had brought to the Committee. The line of discussion should not be such that it pushed him towards what he thought had happened in the Committee.

She stated that the Committee had to go back to the fact that, in the last meeting, it had decided that that Committee was the right forum. She added to Mr Mpumlwana’s comments that if Members looked at the matters presented to that Committee by the Democratic Alliance, they immediately had the feeling that the matter was political. It was common knowledge that the DA had never wanted the Public Protector, right from the beginning. They had called her spy and all sorts of names. Members were all aware that there had been a problem with the matter of the Reserve Bank in which the Public Protector had recommended that an amendment to the Constitution be made. It was found to be an overreach on the part of the Public Protector and she had openly admitted her mistake. Was that how the country was run? If someone made an open mistake that had been acknowledged, was the person to be removed from office? In which case, a lot of judges would be removed. Some of the judgements in court were found not to be accurate. That was the reason why cases were appealed and different judgements given by different judges.

Ms Pilane-Majeke noted that Mr Swart had raised the matter of the ANC Chief Whip, but she pointed out that the ANC Chief Whip had called the matter a witch hunt and so he was supporting precisely what she was saying. The Committee was moving in circles and so she asked the Chairperson to summarise. Members were pushing pre-conceived ideas. 

The Chairperson explained that he wanted to take the decisions of the Committee as his point of departure. There had never been a decision to have an ad hoc Committee, so any reference to an ad hoc Committee was out of place. The Committee had decided that it was the competent forum and the matter was before the Committee. Mr Maila and Mr Mncwabe, whom he agreed with, had said that the Committee had to establish if there was a basis for an inquiry and Ms Pilane-Majeke had started to take Members in that direction.   

Mr Mpumlwana assumed, to all intents and purposes, that all Members demanding an inquiry were DA Members as the matter from coming from the DA Chief Whip. The basis for the decision was the letter with some additional details that Ms Breytenbach had given. On the basis of that, he wanted to address the question of substance.

He was interrupted by Mr Swart who raised a point of order, which he said was not against Mr Mpumlwana, but the Chairperson kept reminding the Committee that the only matter on the table was a decision on whether to hold an inquiry or not. Members were going into discussion on the merits of the case. He asked for a ruling on the question of whether the Committee would hold an inquiry or not.

The Chairperson said there was no need to discuss the merits as the Committee was not holding an inquiry. Members were establishing whether there was a need for an inquiry.  Ms Pilane-Majeke had begun to deal with it. Mr Mpumlwana was moving in that direction.

Mr Mpumlwana said that he might mistakenly have used the word inquiry and he apologised. The Committee was talking about a very important person who had been given powers by the Constitution and the whole nation was listening to what they were talking about. It was very important to take it very seriously. The Members could only cast aspersions on the Public Protector for a very good reason. As Ms Pilane-Majeke had put it, many judges would be removed if the decisions were found by the upper court to have been taken by mistake. There was very little basis for an inquiry into the Public Protector. He agreed that it was purely political and it needed to be taken at that level.  One of the things that had caused a stir was when the Public Protector had addressed the matter of the Reserve Bank. The Reserve Bank was not serving the interests of the population of South Africa. It was the only Reserve Bank in the world that was owned by foreigners.

Mr Matiase stated, on a point of order, that to allow Mr Mpumlwana to belabour the merits and demerits of the case was grossly unfair in the proceedings. Members had to deal with the matter of whether there was a case to be answered or not. If the Chairperson allowed Mr Mpumlwana to venture into a list of grievances or perceptions about the Public Protector, it would be grossly unfair. The Chairperson had to limit him to what the Committee was dealing with.

The Chairperson stated that Mr Mpumlwana was addressing an issue that arose in the letter that had caused the referral and which sought to establish the basis for the inquiry, so he was perfectly in order.

Mr Swart rose on a point of order that the South African Reserve Bank was owned by foreigners. That was not correct. South Africans were also shareholders and he asked that that be ruled upon as well.

The Chairperson said it was the speaker’s understanding of the referral which was not material to that process. So, he did not need to say whether it was right or wrong because anyone who wanted to verify the facts could do so.

Mr Horn added, on a further point of order on the issue, that he understood that the process the Committee was following, was to look into whether the letter constituted a case to be answered. If that was the case, Members had to adhere to the letter and could not expand on the letter and give the letter a context that it was never intended to have. Whilst the freedom of speech had to be protected by the Chairperson, he could not allow that the letter be supplemented with subjective views.  To try and follow a rational process and due process, the Committee had to determine whether the allegations made in the letter constituted grounds for an inquiry. That was as per the majority feeling as well as the Chairperson’s ruling on the matter.

The Chairperson stated that Members should be free to give examples of what they thought the DA saw as the basis and he was going to allow Members to give examples and Mr Horn was not going to stop him.

Mr Horn interjected, arguing that the Committee could not put words into the mouth of Mr Steenhuisen, but should call him and let him explain what he had meant in the letter.

The Chairperson said that if Steenhuisen had written to the Speaker as the Chief Whip of the DA, he needed to know what to put before the Speaker. If his facts were not sufficient to create a basis, that was his problem. The Committee was not Mr Steenhuisen and its Members had the right to address the issues. He asked Mr Mpumlwana to continue.

Mr Horn wanted to confirm that the complainant could not supplement but Members of the Committee could supplement from their subjective point of view.

The Chairperson stated that the Committee had to establish whether or not there was a basis. He was not dealing with supplementary matters. The Speaker, on the basis of what she had received, had made a determination that the Committee consider the matter and that consideration would be on the basis of what was before the Committee.

Mr Horn asked whether the Chairperson agreed that Mr Mpumlwana could not put his subjective view before the Committee and that Members were only to deal with the contents of the letter.

The Chairperson stated that Mr Mpumlwana had the right to argue and to make examples and, as Mr Horn had correctly said, there was freedom of speech. He had the freedom to speak and to present matters as he saw them.

Mr Horn issued a friendly warning that it could not constitute a due process.

The Chair confirmed his ruling and asked Mr Mpumlwana to proceed.

Mr Mpumlwana said that the letter picked up on the decision of the judge who said that the Public Protector had made a mistake. The letter blamed the Public Protector for having to decide on a certain matter and how she had decided. If all judges had, based on decisions made, to be scrutinised as to whether they were fit and proper judges, they would be no judges left as almost all judges made mistakes and were corrected. It seemed that someone’s feet were being pinched because the Public Protector had said that ABSA had to pay back the money to the Reserve Bank and that was one of the reasons for the matter being political.  Monopoly capital was worried about that. Personally, he had to say that there was no basis for the Committee to even consider the fitness of the Public Protector just because a political party believed that she was not proper. The Committee needed to respect its decision to appoint her. Some people had reasons for not liking the Public Protector. If the Public Protector was not toeing the line of a political party, there would be no problem, as in the case of Thuli Madonsela.

The Chairperson suggested to Mr Mpumlwana that Members should not make reference to people who were not there.  Mr Mpumlwana withdrew his reference. The Chairperson thanked him and stated that self-respect by the Members would earn the respect of the public.

Mr Swart stated that he had been fully supportive of the appointment of the Public Protector and so he had no axe to grind with her but he had said to her in a Committee meeting that he had been disappointed with her findings in the matter under discussion. The Committee had more than enough prima facie evidence in the letter of complaint. The situation was similar to private Bills in Parliament in that the process was to allow the complainant to come and speak. He suggested that that was the first step. On the basis of that, the Committee could decide where to take the process. In his 18 years in Parliament, that had been the process followed. In any case, if it was the decision of the Committee to decide on the matter, it could not be decided on that day. Members needed to have the document attachments which he did not have, even though he had read the judgement of his own volition. Similar to the Committee’s approach with the decision on the magistrates, the Committee could not continue unless all Members had a copy of, and had read, the Annexures. He had received neither an electronic nor a hard copy of the Annexures, which dealt with the judgement, the ABSA Bank report by the Public Protector, the supplementary affidavit. That was his second argument as to why the Committee should delay the matter.

He added that there was an affidavit by the Minister of Finance and one by the Speaker which was an indictment on the Public Protector and that gave substance for a decision to have the hearing based on the complaint of the Chief Whip of the DA.  It was not about whether the Public Protector was guilty, but Members had to read the Annexures.

Ms Pilane-Majeke asked to speak on a point of privilege about what was being said but was not given permission to speak.

Mr Swart stated that the Speaker herself, in her affidavit, had set out her complaints against the Public Protector. That was all part of the documentation that the Committee had to consider. The Speaker had concerns about the Public Protector’s remedial action. The last very serious finding that needed to be considered was contained in the judgement itself.

The Chairperson reminded Mr Swart that the Committee wanted to determine whether there was a basis to consider the matter on the basis of the referral. The matters that Mr Swart had raised could not be discussed at that point.

Mr Swart added animatedly that the letter had Annexures that were referred to on page 2 of the letter. He was saying that a decision by the Committee needed to consider the Annexures that formed part of the letter of referral. One of the Annexures was the judgement in which the judge had said that it was disingenuous of the Public Protector. The judge stated that she had basically lied. Mr Swart was not commenting on the implications of the judge’s statement, he was referring to an Annexure to the letter from the Speaker.

Mr Mncwabe was disappointed in the way that the Members were handling the meeting. It should have been an easy matter to discuss and finalise. He did not want to bring politics into the matter. He could not see where Members really differed. There was a letter of complaint to which they had to respond.  The letter from Mr Steenhuisen was based on the Court judgement and the Public Protector had apologised.  His view was that, at that stage, there was no basis to consider the matter so the Committee should write to the Speaker and tell her. Should the complainant write to the Committee telling them that he wanted to make representations, he then would be invited to address the Committee. Mr Mncwabe did not want the Committee to create a loophole for the future.  There was a case in the Gauteng High Court. The President was arguing that the outgoing Public Protector had acted outside of her jurisdiction. If the judge decided that the Public Protector could not instruct the President, then would people say that the previous Public Protector had not been competent? If the Public Protector had been a judge, the matter would have been taken to the Court of Appeal, but that would not have made her an incompetent judge.

Mr Mncwabe noted, from the NFP’s side, that the matter had gone to court and the Public Protector had seen her mistake. The question to be asked was why that Office should be destabilised.  As public representatives, the Members had to guard the stability of the country and it was not the place of the Committee to destabilise the Office of the Public Protector. The Committee could not say that the Public Protector should be removed. Also, if they spoke of an inquiry, there were finances involved and the Members should not be responsible for creating such expenses. His party did not see the need for an inquiry. As a rural boy from the Transkei, he would never defer to shareholders of the West who did not care about rural black people. Everyone knew that when dividends were declared, nothing went to the rural people in the Transkei. The Committee, therefore, had no business with the matter.

The Chairperson thanked him for his analogy.

Mr Maila noted that he was the rural boy from Limpopo following the rural boy from Transkei. Mr Mncwabe had latched onto the issue. Was there a need?  Was there a basis? Mr Horn had made reference to Nkandla. He wanted to remind the meeting of the lessons that had been learnt from Nkandla: the recommendations of the Public Protector were binding and if one was aggrieved by her decision, the person could approach the courts.  If that happened, the matter would be guided by the Constitution. The Public Protector had made a recommendation. The remedial action was subjected to review. Was it rescinded?  The answer was no.  The complaint by Mr Steenhuisen had no basis and should just be thrown out by the Committee. It had no basis. It was just a lot of politicking.  It was important to remember that Mr Waters, the Deputy Chief Whip of the DA, representing the DA, had been charged by the Public Protector. Now the DA Whip was retaliating, so the matter had no basis and the reply had to be that it had no basis and had to be laid to rest. The Committee could not allow it.

Ms Breytenbach noted that if the Members followed the advice of Mr Maila, the Committee would have to write to the Speaker and say that it had not considered the matter. She could not stress sufficiently the need to act rationally, which did not mean logically, but according to the meaning of rationally in law. That was another thing that they had learnt from the Nkandla judgement, but which Mr Maila preferred not to refer to. If the Committee wanted to consider the conduct of the Public Protector in the past 10 months, reference to the letter by Mr Steenhuisen made it clear that the Public Protector had grossly overreached her powers. Ms Breytenbach indignantly pointed out that the Public Protector had instructed that Committee to amend the Constitution.

Ms Mothapo raised a point of order. The Member had made mention of the Public Protector’s conduct and that was not permitted in terms of Rule 88.

The Chairperson told Ms Breytenbach to debate in terms of the Rules of Parliament and therefore he upheld the objection.

Ms Breytenbach was horrified. She had never heard anything quite so bizarre in her life and stated that that was irrational if anything was.

The Chairperson told Mr Horn that Members were not permitted to howl in Parliament.

Mr Horn remarked that sometimes the decisions of the Chair were so outrageous that it was impossible to come up with any other response.

The Chairperson told Ms Breytenbach not to cast aspersion on Heads of Chapter Nine institutions.

Mr Horn raised a point of order.

The Chairperson did not want to recognise Mr Horn.

Mr Horn was adamant that the point of order had to be dealt with immediately. He wanted the Chairperson to revisit his decision to sustain the objection by Ms Mothapo. Rule 88 could not apply as it was then impossible to speak about the reasons for removal of the Public Protector. The Rule could not find application in that case as that would defeat the point of the proceedings which were intended to prevent Members from breaking the Rules.  The discussion was to decide whether the person was fit to hold office. How could they decide that if they could not talk about the actions of person? By silencing them, the Chairperson was defeating the point of the proceedings. The proceedings had been devised, in terms of the Rules, to decide whether the Public Prosecutor made herself guilty of misconduct, incapacity or incompetence. Parliament would decide to remove her if she were guilty. The use of Rule 88 to prevent Members from impugning on her dignity without due process, in that process, was highly irregular. 

Ms Pilane-Majeke asked if Mr Horn was speaking on a point of order.

The Chairperson asked her to allow him to chair the meeting and told Mr Horn not to cast aspersions on the Heads of Chapter Nine institutions. Members had to address the matter before the Committee, which was whether there was a basis to hold an inquiry or not. It was not a joke but a serious matter. He called on Mr Swart to speak but Ms Breytenbach stated that she was not done, by quite a long shot.

Ms Breytenbach asked if the Chairperson was suggesting that the content of the letter by the complainant should not be debated by the Committee.

The Chairperson said that the matter was under consideration by the Committee and the Committee was considering whether or not there was a basis, not the Chairperson. She should not ask him whether there was a basis. He would rule at the end of the discussion and not at that point.

Ms Breytenbach repeated that, in terms of the ruling, that he had just made, Members could not engage with the contents of the letter.

The Chairperson asked who had said that. He stated that he had said that the Committee had to decide whether there was a basis or not for an inquiry on the basis of the referral.

Ms Breytenbach stated firmly that she would be addressing the letter of Mr Steenhuisen, which she had been doing before she had been spuriously interrupted by Ms Mothapo’s objection.  It was clear from the judgement in the Gauteng High Court that the Public Protector had grossly overreached her powers when she had recommended, which meant remedial action that was binding, that that Committee amend the Constitution and gave instructions on how it should be amended. Ms Breytenbach added, as an aside, that the Chairperson knew exactly what she had recommended as he himself had taken it on review. The Public Protector had shown such a poor understanding of her mandate that it was staggering. Her lack of understanding of the Constitution left Ms Breytenbach almost speechless.

Ms Pilane-Majeke and the Chairperson argued over whether she could call for a point of order, but ultimately Ms Pilane-Majeke informed the Chairperson that matter had to be dealt with and could not be allowed to go on. She stated that, according to the rules, a Member could be told to stop speaking if that Member continued or persisted with repetitive arguments. As the Member speaking was reading from affidavits that everyone had read and was repeating content that had been discussed and agreed upon, she had to stop speaking.  The Committee had to decide whether there was any basis for discussing the matter.  The DA were clutching at straws to push their point.

The Chairperson sustained the point of order. He referred Ms Breytenbach to the analogies made by Mr Mpumlwana and Mr Mncwabe. The Committee had to take the matter forward.

Ms Breytenbach commented that if she had objected to every irrelevant bit of nonsense spoken in that Committee in the past hour, she would always be objecting.  She asked if she could not engage with the letter from Mr Steenhuisen. She suggested that Ms Pilane-Majeke had not read the letter and that she should give Ms Pilane-Majeke her copy.

The Chairperson said that Ms Pilane-Majeke had referred Ms Breytenbach to a Rule of Parliament and he had sustained the Rule. It was unfortunate if Ms Breytenbach did not understand the Rule.

Ms Breytenbach continued, stating that she understood the Rule, and was referring to the letter of Mr Steenhuisen. She continued reading the letter.

The Chairperson interrupted. He said that the Committee was on the point of establishing whether there was a basis or not.

Ms Breytenbach asked if the Chairperson had read the letter. She laughed that it seemed that he had not.

On a point of order, Mr Maila stated that Ms Breytenbach should not read the letter as they had all read it, and that she should deal with the contents of the letter.

In response Ms Breytenbach informed the Committee that Mr Maila had borrowed her copy of the letter that morning as he had not had a copy and she wondered whether he had given the matter any thought.

The Chairperson called on Mr Swart to speak.

Ms Breytenbach informed him that she was not finished.

The Chairperson stated that he was not in the meeting to be playful and if that was what she wished to do, he would continue with the meeting.

Ms Breytenbach irately responded that the Chairperson was interrupting her and that she intended to continue until she was done.

The Chairperson told her not to deal with the merits of the matter because the Committee was simply deciding whether there was a basis for an inquiry.

Ms Breytenbach asked whether that was possible without engaging with the letter written by Mr Steenhuisen.  It was bizarre.

On a point of order, Mr Matiase stated that the Chairperson was deeply involved in the matter and he was bickering with Members of the Committee instead of presiding over the Committee. He had earlier risen on a point of order asking the Chairperson to restrain Mr Mpumlwana from debating the merits and demerits of the matter and Mr Matiase had been ruled out of order. Ms Breytenbach, following the Chairperson’s guidance, was debating the merits and demerits of the matter, but the Chairperson was ruling her out of order.

The Chairperson repeated that he had informed Ms Breytenbach that they were not looking at the merits and demerits of the matter, but deciding whether there was a basis for an inquiry.

Mr Matiase said that he would remind the Chairperson why he was in a deep, bottomless state of confusion.

Ms Pilane-Majeke raised a point of order in terms of Rule 87, stating that no Member could reflect in a disrespectful manner on the Members, the House or the proceedings. The Member was being disrespectful to the Chairperson. She was asking the Member to address the point of discussion in the Committee which was whether there was a basis or not, and to stop reflecting on the Chairperson. If all matters had been exhausted, then the Chairperson should summarize what had been put before them in terms of the letter.

The Chairperson sustained Ms Pilane-Majake’s point of order as she was applying the Rules of the House. They were not going to allow Members to be disrespectful towards Members in the House.

Mr Horn rose on a point of order stating that Mr Matiase had not completed his point of order.  The Chairperson stated that he had not had a point of order but was being disrespectful.

In response, Mr Horn said that it was not disrespectful to point out that the Rules were not being applied in a consistent manner.

The Chairperson said that Ms Pilane-Majeke had referred to Rule 87.

Mr Horn noted that, because she was ANC, her view would prevail. 

The Chairperson disagreed with his interpretation, stating that her view prevailed because she understood the Rules.

Mr Horn asked if the Chairperson was disrespecting other Members because he believed that they did not know the Rules.

The Chairperson attempted to explain that Ms Pilane-Majeke was interpreting the Rules correctly and quickly moved back to Mr Matiase

Mr Matiase said that he would rise in respect if that was what was required.  He said the Chairperson had himself admitted in the last meeting…

The Chairperson informed Mr Matiase that he was insulting him.

Mr Matiase quickly withdrew his statement.

The Chairperson stated that they were busy with the current meeting and not the last meeting and dealing with the matter of whether there should be an inquiry.

In response, Mr Matiase told the Chairperson not to be afraid of his history. The Chairperson had previously said that he had felt conflicted and had chosen to abstain from voting in the previous meeting on the matter where he had felt that a different mechanism was required for the inquiry. He had chickened out.

The Chairperson told Mr Matiase that he was out of order as he did not respect the Rules of Parliament and called on Mr Swart to speak.

Mr Mpumlwana stated on a point of order that Mr Matiase had no point of order as the Chairperson had dealt with the matter of his competency to chair the meeting at the beginning.

Mr Matiase asked for the right to rise on a point of privilege.

The Chairperson said he had ruled when Mr Matiase had risen on a point of order.

Mr Matiase requested the Chairperson to recuse himself from the proceedings.

The Chairperson ruled him out of order as it had been settled at the beginning of the meeting.

Mr Swart submitted that there was more than sufficient information to go on based on the letter, if read in connection with the Annexures to substantiate an inquiry.  The analogy of the judge was pertinent. If a judge were disingenuous, there would be an inquiry.  To reject the referral without an inquiry would be grossly unjust. A decision of the Committee could be taken on review and Members did not want a finding that they had not dealt with the matter appropriately. He asked the Chairperson to rule on whether the Members had received and read the Annexures.  The answer to the point in question was that, on the basis of that letter, there was a basis for an inquiry.  The ambit of the inquiry was a separate issue.

The Chairperson said that there were two positions: firstly, there was no basis for an inquiry; secondly, there was a basis for inquiry. He still had three speakers on his list. He could not rule on the preparedness or otherwise of the Members and whether they had read the documents. Mr Swart stated that the documents had not been attached to the email. In response the Chairperson reminded him that the Committee was not responding to the letter but the matter of referral.

Mr Horn agreed with Mr Swart that the Committee, that very morning, had deferred another matter because Members had not read the reports. In the matter of the Public Protector, Members did not have the relevant documents but the Committee was proceeding.  However, the Annexures were in the public domain. Mr Mpumlwana had stated that they could not hold an inquiry because the Public Protector had made a mistake. That was what the inquiry would decide. The Committee had a statement from a judge that the Public Protector’s recommendations were disingenuous.  During the appointment process, she had pointed out that she had an understanding that remedial action of the Public Protector was binding.  If the Committee accepted that sometimes the findings of judges were set aside, it was not so simple as to say that the Public Protector had made a mistake and was therefore to be excused.  Furthermore, if she had made a mistake, the mistake could constitute the incapacity and incompetence that gave reason for her to be removed by Parliament. Again, the majority of the Members were putting their spin on what had happened and, on that basis, they would decide that there was no basis.

Mr Horn noted that Ms Breytenbach had been shut down when she had read from the letter of referral. Mr Steenhuisen had referred to the allegations against the Public Protector of overreach of power, a poor understanding of her powers, misconduct in that she consulted with irrelevant role players before presenting her report. If those allegations were to be found to be factual, there could be no decision other than that the Public Protector had made herself guilty of misconduct or incompetence, or had an inability to understand her power, which would mean that she did not have the necessary capacity.

Members had argued, quite ironically, that she, in making erroneous findings had to be excused because judges made mistakes.  When the previous Public Protector had said, that her work was similar to that of a judge, she had been vilified by the Members of the Committee. It was true that she was an important person. It was precisely because she was such an important person, that the Committee had a heavier duty than normal not to cast aside such allegations without investigation.

The Chairperson wanted to summarise the points but Mr Horn informed him that he was not yet finished. He wanted to end with a circular argument.

The Chairperson stated that Mr Horn was going into the merits. He stated that the Committee was faced with the possibility of an inquiry into the decision of whether there was a basis for inquiry or not but Members kept trying to get into the merits.  He expected Members to know the Constitution and said that Heads of Chapter Nine Institutions had the right to take remedial actions and if one was aggrieved by the remedial action, one had to take the matter to court, and the Committee was not the court.

Mr Horn agreed with the Chairperson that Members should know the Constitution and that they should know that the only Chapter Nine Head who could take remedial action was the Public Protector.

Ms Pilane-Majeke said that the Chairperson should conclude rather than repeating and repeating. He had to summarise the position by stating that there were those who believed there was no basis for an inquiry and those who believed that there was a basis for an inquiry. The Chairperson had to conclude by giving direction as to what the outcome was of the discussion.

The Chairperson said that Mr Horn was talking to the merits.

Mr Horn asked how the Chairperson could know what he was going to say. Mr Horn asked, whether in the Chairperson’s view, and in the view of his protection racket, the merits were irrelevant to making a decision as to whether there was a basis for an inquiry.

In response, the Chairperson confirmed that the merits were not irrelevant but that they were not dealing with the merits that time.

Mr Horn, commented, somewhat sardonically, that the merits were not irrelevant but the Members were not to deal with them.  Several Members attempted to voice their opinions in the background.

Ms Pilane-Majeke complained about body language that needed to be taken care of.

The Chairperson called on Mr Shivambu to proceed.

Mr T Mulaudzi (EFF) noted that the Committee had been requested to check whether there should be an inquiry against the Public Protector in terms of Section 194 of the Constitution.  Section 194(1)(b) stated that the Public Protector could only be removed from Office if there was a finding from the Committee of the National Assembly, which meant that that was the relevant Committee to get the findings. The only way to get the findings was not to decide whether the inquiry was fit or not but to stage the preliminary inquiry. People should come and put evidence, so that the Committee could be sure whether it had findings that would allow it to remove the Public Protector or not. The Committee could not simply take an irrational decision by saying that there were no facts. How could the Committee get to the findings if they were not going to allow an inquiry?

The Chairperson said that the question was whether or not there was a basis for inquiry and there were two positions. Firstly, a position that said there was not and, secondly, a position that said there was. The only way of settling the matter was to put the matter to a vote. The Committee had noted that when one was aggrieved by a decision of the Public Protector, one should go to court and Mr Steenhuisen should have gone to court to get the court to deal with the matter.

The meeting was disrupted during the vote by Members calling for points of order, others interjecting and squabbling about who was, and who was not, entitled to vote.

The Chairperson continued with the vote, asking Members to raise their hands if they believed that there was no basis for an inquiry. The Chairperson counted six votes, including himself. That was a majority.  There were four votes against. The matter was closed.

Deputy Public Protector allegations
The Chairperson said that there were allegations against the Deputy Public Protector. The Public Protector had responded and the letter had been circulated. Proceedings were ongoing in the matter and so he felt that it was premature for the Committee to get involved in a matter that was being investigated in another forum.

Ms Mothapo said it was not proper to deal with the matter because it was dealt with somewhere else, properly so.

Ms Pilane-Majeke said the matter had been put forward by the Democratic Alliance again to say that there had to be an investigation into the Deputy Public Prosecutor on the list of four charges that related to the office of the Mayor in Ekurhuleni. The information put before the Committee did not have any substance and the matter had to be removed off the agenda of the Committee until something to the contrary was tabled. Information that Members could get publicly was that the matter was being addressed.

The Chairperson stated that the matter had been referred to the Committee. The Deputy Public Protector had responded and the matter was under consideration by another forum and the proposal was that the matter could not be entertained unless a new referral was made to the Committee.

Mr Horn confirmed that the Public Protector had stated that Section 79 Notices had been issued and that the matter was ongoing. However, what was missing, was that when it suited the ANC, the honour of the Members had to be upheld in all circumstances.

Mr Mpumlwana raised a point of order stating that Mr Horn was not speaking to the matter. He said that the Committee was prepared to talk politics but this time he thought that the Chairperson should find out whether a matter that was being handled by another forum should be entertained by the Committee, and he would expect that answer to be in the negative.

The Chairperson upheld the objection, stating that the two matters before the Committee had been concluded.

Mr Horn asked if the Chairperson had, by executive powers of himself, concluded the matter.  He asked for permission to finish. He stated that the Chairperson had welcomed the Rules Committee of Johannesburg but the only thing that they had learned, was how not to chair a meeting.

The Chairperson said that if he wanted to politick issues, he should politick on the street. Members did not politick in a Committee of Parliament. They dealt with issues. He called for a vote on whether the Committee should deal with the matter

Mr Mncwabe stated, on a point of order, that there was no need for a vote as the matter was being dealt with in another forum.

Mr Maila agreed with Mr Mncwabe, adding that there was no need for a vote as there was consensus on the matter.

The Chairperson alleged that some people had come there to play tricks and thought that the Committee was a playground. He closed the meeting. Hearing several voices, he asked if anyone wanted to vote.

Ms Pilane-Majeke said that no one wanted to vote and that the matter should be closed and removed from the agenda.

Mr Horn said that the matter had to be referred to the Speaker and so could not be removed from the agenda.

The Chairperson stated that the two matters concluded the meeting and that there was no basis for an inquiry on either matter.

Meeting adjourned.