Documents Presented: Draft Terms of Reference for the Establishment for a Commission of Inquiry [not available for public]
This was a joint meeting between the Parliamentary Committee for Water and Sanitation and the Standing Committee on Public Accounts (SCOPA) to discuss terms of reference for an investigation into the Department of Water and Sanitation (DWS). This inquiry was initiated after the Budgetary Review and Recommendations Report in 2017 which identified overspending of budget and underperformance in reaching objectives.
Parliamentary Legal Services clarified that the investigation was provided for within the Rules of Parliament. Members identified mismanagement of public funds and lack of leadership as problems within DWS. The Committee agreed that the Auditor General, National Treasury and the Special Investigating Unit should provide submissions to the Committee to shape the focus and parameters of the investigation. A small task team consisting of the two Committee Chairpersons was established to arrange the logistical arrangements for submissions from the AG, National Treasury and the SIU.
The Committee observed that time and content parameters should be included to focus the period which the inquiry would investigate. Availability of time to conduct the investigation was critical. Thus letters to relevant parties to submit submissions would be sent that day.
Members proposed a hybrid approach which would consist of an evidence leader with sub-researchers of specific themes who specialised in cross-examination style inquiries. These sub-researchers would Members of the two Committees who were to be paired together to focus on specific issues within the investigation.
Members noted that the process of inquiry needed to be as open and transparent as possible and that a “clean” Department was the goal of the inquiry. Public submissions were to form part of the inquiry and were to be structured with deadlines as this method would initiate a proactive approach to the inquiry. The Committee agreed that the inquiry move in parallel with law enforcement agencies and work in cooperation with the Hawks and that criminal charges could be laid without waiting for the investigation.
Mr M Johnson (ANC) explained the joint meeting between the Parliamentary Committee for Water and Sanitation and the Standing Committee on Public Accounts (SCOPA) was to take forward investigating the Department of Water and Sanitation and to decide on the way forward. This investigation was initiated after the Budgetary Review Recommendations Report (BRRR) in 2017. He welcomed Adv Jenkins from Parliamentary Legal Services who would help with legal advice. The process was new and the Committee was the third committee in Parliament to start the process of investigation.
Mr T Godi (APC) said that SCOPA had rescheduled its own meeting to accommodate the Portfolio Committee on Water and Sanitation and had received the draft terms of reference from the Committee.
Parliamentary Legal Services briefing
Adv Frank Jenkins, Senior Parliamentary Legal Advisor, stated that Committees could work only within the framework of the Constitution. National Assembly Rule 227 allowed the Committee to conduct investigations and Rule 176 allowed the Committee to decide on their own internal processes. He identified that as an end-result of the investigation, the Committee wanted a report to presented to the House. He advised that the process to be followed in the investigation and the resources be deliberated on by the Committee.
The investigation required a finding to be made upon completion. He stressed a necessity for fairness within the process and that the Committee’s constitutional mandate was oversight. On process, various mechanisms could be used in the inquiry. He advised that the House Chairperson of Committee, Mr Frolick, be approached on the matter of resources. He recommended reading the SCOPA report as a starting report for the investigation along with findings made by the Auditor General.
He noted that it is going to be difficult investigating criminal activity. He recommended the National Prosecuting Authority or police investigate. He asked the Committee to discuss possible processes for the investigation and that it be discussed within their relevant parties along with the Mr Frolick’s office.
Mr Johnson thanked Adv Jenkins for his input. They were engaging in an unprecedented process and objectives needed to be set. This was to be the basis to move ahead.
Mr H Chauke (ANC) asked what the objectives of the investigation were and confirmed the Committee had the power to investigate. The Committee and SCOPA both had identified mismanagement of public funds and lack of leadership as problems. He recommended that both Committees table concerns to shape the inquiry. After the problems have been identified, a terms of reference document could be drafted which would finalise the style of inquiry. The Committees were limited in resources. Parliamentary Legal Services should be approached as he stressed the need for legal advice to form part of the process. The availability of whistleblowers was questioned by him, as it was a sensitive topic. A full mode of inquiry should be adopted to produce results and he recommended that people had to testify under oath.
The Chairperson said the matters raised by Adv Jenkins on process were to be discussed.
Mr T Brauteseth (DA) supported Mr Chauke. He recommended a hybrid approach. This approach would consist of an evidence leader with sub-researchers of specific themes who specialised in cross-examination style. Members had to be disciplined about speaking time to ensure optimal time for questioning.
Mr C Ross (DA) supported the idea of an evidence leader. He added public participation was to be limited and law enforcement agencies engaged with. He asked when the law agencies could be approached.
Mr L Basson (DA) disagreed, saying the public needed to be included. Time constraints should not be added as this would limit information extraction. He asked for the process to be as open and transparent as possible and stressed that a clean Department was the goal of the inquiry.
Mr M Hlengwa (IFP) agreed with Mr Brauteseth on the allocation of focus areas to Members to identify questions. A clear definition of the focus areas was needed. Public submissions should be structured with deadlines as this method would initiate a proactive approach. Members were to be allocated these submissions. He disagreed with Mr Basson and stated that time limits should be applied to the investigation for immediate results. He recommended that Members from the two Committees be paired on issues. He agreed that a question and answer style needed to be adopted in cross-style examination inquiries.
Ms N Bilankulu (ANC) agreed with Adv Jenkins in welcoming public submissions as it would increase the amount of information. She recommended people submit written submissions whereafter Parliamentary Legal Services could assist. She recommended that the Chairperson could determine who was to be appear before the Committee. On the Public Finance Management Act, problems within the Act which influenced the investigation should be reviewed. She stated it was a busy year and that the the Office of the Speaker should be approached immediately for setting a timeframe.
Mr E Kekana (ANC) said that time parameters should be added to the inquiry to focus the period which the inquiry would investigate.
Mr Brauteseth said that time parameters to investigate should be identified so Members could start their research as soon as possible. He asked that the normal work of SCOPA and the Committee be considered regarding the allocation of work.
Mr Johnson agreed that that a period of investigation be determined and that witnesses be identified. He agreed that public participation needed to be part of the investigation and that law enforcement was to be conducted in parallel with the investigation. The law had to take its course should transgressions be discovered. He agreed that an evidence leader should to be identified. On budget and a legal team, the relevant offices would be approached. He requested that terms of reference be discussed along with specific references.
Mr Hlengwa suggested a “refresher” briefing by the Auditor General about the Department of Water and Sanitation to help identify the problems to be investigated. He also recommended that National Treasury provide financial statements and submissions.
Mr Basson agreed Mr Hlengwa and recommended that the Special Investigating Unit (SIU) join in with submissions and the investigation. He proposed that the two Chairpersons consult on the three submissions by the AG, Treasury and SIU to identify issues. He asked that two administrators and the Chairpersons form a small committee to start the process on planning and the issues to be investigated.
Mr Chauke agreed. He suggested that the inquiry move in parallel with law enforcement agencies and work in cooperation with the Hawks.
Mr Johnson stated that the focal areas of the investigation was to be determined from several sources such as the AG, the National Treasury, and the BRRR. SCOPA’s recommendations were to be added. He stressed that the lodging of a criminal case was not to wait for the committee investigation. He agreed that a small team was necessary to narrow the scope of the investigation for the Committee and that the small team needed to be finalised.
Mr Kekana proposed the two Chairpersons form the small task team.
Mr Ross requested that Parliamentary Legal Services provide an opinion on the process discussed thus far.
Mr Chauke supported Mr Kekana.
Mr Johnson stressed that the timing of the investigation start as soon as possible.
Mr Chauke stated that a request to Parliament about resources should be made within the next week so that an investigation framework was in place before Members went on recess.
Mr Johnson agreed with Mr Chauke and asked for timing suggestions from the Committee.
Mr Brauteseth questioned the period which was to be investigated. He had information stretching back to 2012 and recommended the investigation parameters go back to 2010.
Mr Hlengwa stated that the AG was the best person to direct parameters. If the Committee was not satisfied they could reassess the parameters, but that decision should be made after consultations with National Treasury and the AG. The commencement and lifespan of the investigation rested on the two Chairpersons. Informed decisions should be made and he asked that the process be driven by the Chairpersons. He proposed that submissions be heard from the Treasure, AG and SIU the following week.
Mr Godi stated that formal letters would be sent to the AG in a timely manner. Submissions made by the AG would sent to Members in advance for preparation. The earliest this could take place was the week before recess and not the following week.
Mr Chauke agreed with Mr Godi but disagreed with the timeline. The Committee has been engaging with the AG and asked that communication be sent that day. He stressed that the AG be approached to submit to the Committee and that the AG had knowledge of the problems within the Department.
Mr Johnson suggested that the availability of the AG and submissions be played by ear. He concluded that the process was to be set forth and continued. The investigation was a lot of work and that due to time constraints he did not know if a response and submission by the AG was possible by the following week.
Mr Brauteseth proposed Tuesday evening for a meeting to hear submissions.
Mr Kekana replied that the AG would advise when they could meet.
Adv Jenkins noted that there was no fault in the process discussed thus far. He added that the power of Parliament was situated in its transparency. On the small working committee, he noted it was a working committee and needed to adjust its procedure to ensure transparency. He suggested that the briefings take place within the full committee for multiparty representation. He concluded that everything suggested was within the Rules.
Mr Godi proposed the meeting end on the understanding that the two Chairpersons design a way forward. An evidence leader needed to be appointed and he noted that law enforcement did not have to wait for the investigation. On the parameters of the investigation, this was to be formalised after briefings from the AG, National Treasury, and SIU. The collapse of the Department was the reason for the joint committee. Written submissions were to be provided to the Committee and thereafter a timeframe was to be drafted. Members would then be able to identify who they wanted to call before the joint committee to testify. Letters would be sent to the briefing parties - the AG, National Treasury, and SIU - asking them to appear the following week or on the soonest available date.
The meeting was adjourned.
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