Documents: Request for postponement letter (only circulated to MPs)
The Public Protector was scheduled to appear before the Portfolio Committee on Justice to explain a policy on the appointment of a special adviser to her office. She did not attend the meeting, but sent a letter late the previous day, asking for a postponement and citing a “family emergency” as the reason for non-attendance.
DA MP, Adv Glynnis Breytenbach, accused the Public Protector of not having any intention to come to the meeting and she said the fact that no delegation list has been sent to the Committee made it very clear that there was never an intention to come. She questioned why the Deputy Public Protector could not be at the meeting and also said that if the Office of the Public Protector was being run even remotely properly, he should have been in the position to step into her shoes and lead a delegation to Parliament.
The next item on the agenda was a letter by the DA Chief Whip to institute proceedings to have the Public Protector removed and Adv Breytenbach said the time has now come for the Committee to seriously consider this option. She said it was very clear that the Public Protector did not want to do her job; could not do her job; did not understand her job; and had nothing but contempt for the reporting processes.
The Chairperson said the Committee needed to follow due process, i.e. first hear from the Public Protector before any decision was taken to proceed with the inquiry into her fitness to hold office. The Committee resolved to request that the Public Protector and the Deputy Public Protector appear before the Committee next Wednesday where they expected her to give a more comprehensive explanation as to why she could not attend; and to answer to questions to aid Members in considering whether or not an inquiry into her fitness to hold office should commence. Members also want the Deputy Public Protector to appear to talk to his delegated powers; as well as the failure to send a delegation today with him.
The Chairperson welcomed everyone and said the Committee invited the Public Protector to appear and usually before such appearances, the Committee will receive a letter that showed who will form part of the delegation; and a copy of the presentation before the meeting. The Committee has not received a presentation or a letter listing the delegation. The Deputy Public Protector was also not present and the Committee has not been told why the Deputy Public Protector was not present. The Committee received a letter at 17h00 the previous day which read as follows:
Request for postponement of the Portfolio Committee on Justice and Correctional Services meeting proposed for 6 June 2018
I acknowledge receipt of the Portfolio Committee letter to me dated 1 June 2018. I am unable to appear before the Committee as proposed in the letter. This is due to a family emergency which I have tried in vain to rearrange. I request that the intended meeting be rescheduled to another date suitable. Herewith below are the soonest dates suitable to me.
Kindly consider to postpone the intended meeting to 21 June or 5 July 2018. I profusely apologise for my temporary non-availability as required by the Chairperson and Committee and hope my postponement request will meet your favourable consideration.
The Chairperson said the letter only came at 17h00 yesterday and it was really by chance the letter was even seen. It was really thanks to the diligence of the Committee Secretary who worked after hours. It meant that the Committee could not take this matter any further. If at least the Deputy Public Protector was delegated to attend, the Committee would have been able to proceed with the business. In the last meeting, Members questioned why the Deputy Public Protector was not being delegated to do the work and the answers were that he was busy with training. That was not acceptable to the Committee and he was still not present today. The Committee also took the view not to interfere in the running in the Office of the Public Protector and respected the fact that the Office must act independently without fear or favour.
Adv G Breytenbach (DA) said she must express her outrage that there had been clearly no intent by the Public Protector to attend this meeting. The fact that no delegation list has been sent to the Committee made it very clear that there was never an intention to come. The fact that Mr Malunga was not here was astonishing. It was made very clear at the last meeting that the abilities of the Deputy was not being used to the optimum and there was no reason he should not be fully involved in the running of the Office. If the Office was being run even remotely properly, he should have been in the position to step into her shoes and lead a delegation to Parliament. There was no doubt that he was absolutely competent to do that. It would be fascinating to learn what the nature of this family emergency “that could be rearranged” is. If there was an emergency it was not clear how it can be rearranged. She said she seriously doubted the veracity of this very flimsy excuse. The Public Protector has shown such contempt for the Committee that she could issue this kind of flimsy one page letter that she could not rearrange her family emergency. It was nonsensical and should outrage every single Member of the Committee. The fact that she made no preparations to be here today simply indicated that she had no intention of coming. She has no regard for the authority of this Committee and she did not feel obliged to report to anybody. The next item on the agenda was a letter by the DA Chief Whip to institute proceedings to have the Public Protector removed and Adv Breytenbach said the time has now come for the Committee to seriously consider this option. It was very clear that the Public Protector did not want to do her job; could not do her job; did not understand her job; and had nothing but contempt for the reporting processes.
Adv S Swart (ACDP) said he must align himself with Adv Breytenbach. The Committee understood that emergencies do arise, but the questions were why there was no documentation sent prior to the meeting; if travel and accommodation cost were incurred; and why could the Deputy Public Protector not have stood in. It had been common practice for the Deputy Public Protector to stand in during Adv Madonsela’s term. The Committee should ask for a fuller explanation and should also insist that the Deputy Public Protector also come before the Committee so that Members can understand what was going on. It was an independent office, but the courts have indicated that the Public Protector did not understand her constitutional obligations. There was a degree of neglect towards Parliament and it should be taken up further. It was time for the Committee to seriously consider whether the Public Protector was fit to hold office.
Ms M Mothapo (ANC) said legislation prescribed that if the Public Protector was unable to perform her duties, the Deputy Public Protector should act on her behalf. She did not agree with the proposed dates, because the majority of Members of the Committee will be doing public hearings on the Constitutional Review Committee. The Public Protector should appear before the Committee next week and a thorough explanation should be given on why the Public Protector did not make the necessary arrangements for today’s meeting.
Mr W Horn (DA) said the Committee must not be blinded by the fact that the letter purported to be a request for postponement. It was not a request, but rather a de facto letter informing the Committee that the Public Protector will not be attending. If one looked at what the Public Protector was supposed to come and address today, it was a further indication that this Public Protector “has gone rogue”. There were two items on the agenda today. She had to explain why she went about creating certain policies and made certain appointments outside of the provisions of the Public Finance Management Act (PFMA). It was a case of “I can’t explain it and therefore I won’t come”. This was now following in the footsteps of people like Dudu Myeni who has been giving Parliament the run-around for months. The Committee should express its outrage on the way the Public Protector went about this and then move on to the second order of business.
Mr G Skosana (ANC) said while the Committee can understand a family emergency, it was disappointing that there was no delegation sent to represent the Office of the Public Protector which “would have been the normal way to do things”. It was really disappointing. He agreed that a request should be sent to the Public Protector to set aside one day the following week to appear before the Committee. The dates proposed by the Public Protector coincided with the Constitutional Review public hearings and the various provincial road shows Members will be undertaking.
Mr M Maila (ANC) said the Committee should note the emergency without pre-empting what the emergency was all about. He also agreed that a request should be sent to the Public Protector to come before the Committee next week.
The Chairperson reiterated the respect the Committee has for the independence of the Office of the Public Protector, but also said the Office should be working as a collective and duties should be delegated when necessary. The Public Protector was not here; she informed the Committee after hours the previous day and if not for the diligence of the Committee Secretary, the Committee would not even have been aware. Regardless of the emergency, the Committee expected a delegation to have been booked to be present at the meeting. He again mentioned that the Deputy Public Protector was not here and the Committee did not receive a report or delegation list in advance. He agreed that the Committee needed a full explanation and will write to the Public Protector to ask why she did not appear; and why the Deputy or other staff did not come in her place. On the proposed dates, he said Parliament was actually on recess during those dates and that Members are already committed to the important land issue and would not be able to accommodate the Public Protector on the proposed dates. He agreed with the view of the Committee that the Public Protector should appear before the Committee next week. On the second matter, he said the Speaker of the National Assembly referred the matter on whether or not the Public Protector was fit to hold office to the Committee. The Committee could not make a decision before the person this might affect, has been heard. He referred to the letter by the DA Chief Whip that has been circulated to Members that asked to expedite procedures to remove the Public Protector. The Committee was not competent to take this matter further without hearing from the affected person. The position of the Committee was to invite the Public Protector to appear next week, on Tuesday or Wednesday.
Mr Horn said he did not necessarily disagree, but he asked that the letter from the Speaker be forwarded to the Public Protector in order for her to prepare for such a meeting. He said the complainant (Mr Steenhuisen) should also be allowed to come and substantiate his request in a verbal manner, because he informed Mr Horn that he did not even know that this matter would be dealt with today. In the National Assembly Programming Committee (NAPC) the Speaker had indicated to Mr Steenhuisen that she would take it up with the Chairperson of the Justice Committee to sort out that in the previous request, the Committee dealt with the request without listening to the complainant. He agreed that due processes included informing the Public Protector, but it also included listening to the complainant more fully.
The Chairperson said the Committee should first decide whether or not to hold an inquiry which had nothing to do with the complainant. If the Committee decided to hold the inquiry, all people would be identified to come and testify. The Committee cannot deal with complainants one by one, because it was not just based on the letter by the DA Chief Whip; there are court judgments which needed to be looked at in its totality. It would be premature to invite the DA Chief Whip.
Adv Breytenbach said a few months ago the Committee agreed to hold an inquiry and then reneged on that agreement. It was now clear it was a mistake. The Public Protector has done nothing in the intervening months to redeem herself and continued to disregard the requirements of the Office and the Public Protector Act. She did not understand her mandate and it was incumbent on the Committee to hold an inquiry now. She said the Chairperson has acknowledged the scathing court judgments against her and that the public needed to have confidence in the Public Protector. She has done nothing to cover herself in glory and she has done nothing to inspire confidence in her abilities to do her job. Her last appearance in this Committee was such an appalling disaster that the Committee could hold no other view that it was now incumbent upon Members to hold an inquiry. On the appearance of the DA Chief Whip, she said the Chairperson wanted to afford the Public Protector an opportunity to raise her views, but did not want to afford Mr Steenhuisen the same opportunity. What makes the Public Protector better than Steenhuisen? She said it was not the decision of the Chairperson to make, but rather that of the Committee. She went further accusing the Chairperson of making unilateral decisions when it suited him. The Public Protector was incompetent and it was clear that she did not understand her mandate and it was painfully clear for everybody to see. This Committee must hold an inquiry as to her fitness.
Adv Swart said the Committee was competent to deal with the matter and that he agreed with the process and suggested that the letter of complaint be referred to the Public Protector. He also agreed that both parties should be heard on the matter. He did not understand what the Public Protector will respond to next week, because the presumption was that it would be the inquiry. He strongly urged the Committee to hold an inquiry and the outcome was a separate issue, particularly given the court decisions that have indicated that the Public protector did not understand her constitutional duties; her apparent disregard for her appearance today; and her last appearance where she tried to explain her findings on the Estina Dairy Project. There were a number of issues that needed to be looked into and he urged the Committee to hold an inquiry with due process. He fully supported the due process, but he wanted clarity whether the Speaker directed the Committee to hold an inquiry or to expedite the matter.
Mr Skosana said Members had the letter by Mr Steenhuisen which was addressed to the Speaker, but the Committee did not have the letter by the Speaker addressed to the Committee wherein she referred the matter to the Committee. Mr Steenhuisen, in his letter, gave a number of reasons why he thought Parliament should constitute an inquiry on the fitness of the Public Protector to hold office. It would be fair to give the Public Protector an opportunity next week when she appears before the Committee, to talk to the issues raised about the Office. After hearing her responses, the Committee should then make a determination whether to have an inquiry. If such a decision was made, and if the Committee needed more information, Mr Steenhuisen or any other relevant person could then be invited.
Mr Maila said some Members want to make it seem that their personal opinions are also that of the Committee. The Committee wanted the Public Protector to appear as early as next week before the Committee. The Committee will then determine whether it was proper to engage in an inquiry and only then will witnesses and affected persons be called.
The Chairperson said the Speaker had not ordered the Committee to hold an inquiry nor does she has the authority to do so. She referred the matter to the Committee for consideration. The Committee will hear from the Public Protector before a determination can be made to hold an inquiry. Making such a determination prematurely violated the Constitution and the law. If an inquiry was to be held, all interested parties and witnesses must be identified to appear before the Committee. The fact that the DA Chief Whip wrote a letter to the Speaker did not make him the sole witness or competent person to base a decision on. Even if the Committee decided to hold an inquiry, the Committee programme and Parliament’s programme needed to be considered to find a suitable date. At the moment, the Committee was not in a position to deal with that matter. The Committee should not be “jumping the gun” and the decisions that can be taken now are that the dates proposed by the Public Protector are not acceptable; the Committee wanted a full explanation why she was not here today, or alternatively her Deputy; and that the Committee expected her to appear before the Committee next week. The report that was expected of her should be tabled before that meeting and the way forward will be determined after next week’s meeting.
Mr Horn proposed a request that the Deputy Public Protector be part of the delegation next week so that the Committee canvas issues around his delegated powers; as well as the failure to send a delegation today with him.
The Chairperson said that was reasonable and acceptable.
Mr Maila disagreed and said the Committee should not be micromanaging the operations of the Office of the Public Protector. The Committee wanted the Public protector to appear next week, whether or not she was represented by herself or the Deputy.
The Chairperson agreed, but said the Committee raised concerns on why the Deputy Public Protector was not here and next week the Committee also wanted to deal with this. The Committee did not want to deal with a matter that might be prejudicial to him in his absence.
Mr S Mncwabe (NFP) asked if Mr Steenhuisen’s letter has been forwarded to the Public Protector. The Committee has been dealing with this matter for a long time. He was worried that if the Public Protector came before the Committee, she will request an opportunity to prepare herself for responses.
The Chairperson said the letter from the Speaker did not require that the Public Protector responded to the letter. At the moment there was not an inquiry against the Public Protector, only a need to consider whether or not an inquiry should be held. Once that determination has been made, complaints by the DA Chief Whip, court decisions and complaints will be considered and the relevant and affected persons will be called. The Committee has not reached the stage to confront the Public Protector with any allegations. As matters stood today, the Committee was not yet competent to take a decision on that matter.
Adv Swart asked what the Public Protector will be responding on next week that will help the Committee to make a decision on whether to hold an inquiry or not.
The Chairperson said there are court judgments and another letter from Webber Wentzel and there are other observations made by the Committee. Members have enough information to be able to put questions to the Public Protector on whether or not an inquiry should be held into her fitness to hold office. It would not be proper to send any letter from anyone and ask her to prepare her responses as if the Committee was holding an inquiry.
Mr Horn asked for a formal indication on the record of the meeting dates for the following day, as well as next week.
The Chairperson said tomorrow the Committee will deal with the Cyber Bill. The following Tuesday the Committee will receive a Ghanaian delegation and he proposed that the Public Protector meeting be scheduled for next Wednesday, where after the Committee will deal with the Traditional Courts Bill. He asked if the engagement with the Commission for the Promotion and Protection of the Rights of Cultural‚ Religious and Linguistic Communities (CRL) also be scheduled for Tuesday. The commercialisation of religion has been consistently raised with CRL and it was incumbent on Parliament to defend societies.
Adv Swart said this matter has already been dealt with by another committee. It did not mean that the Committee should not deal with it, but there was a full report by that committee. He asked should the Committee not first found out what has already been done, because there could be overlapping and the Committee already had a very full schedule.
The Chairperson said the Committee might have to investigate whether that committee was competent to deal with the CRL Commission. This matter concerned the Bill of Rights while that committee dealt with institutions of government. He agreed with Adv Swart and asked that the published report on the CRL Commission be provided to Members.
Mr Maila asked that the Committee programme also considered the pending legislation before the Committee. He also added that the Committee was not doing justice to Correctional Services, because the focus always seemed to be on Justice.
The Chairperson said it was important that the Committee not become the dumping ground for Bills. Based on the parliamentary programme, even if Bills are referred to the Committee now, the Committee would be unable to attend to those Bills. He said he will communicate this to the Office of the Speaker. He said, in response to Mr Maila, his office was inundated with complaints from correctional centres which required the Committee to do oversight work. The Committee needed to construct its programme in such a way that it was fair to justice and constitutional development matters; as well as correctional services matters. He suggested that the Committee take time during meetings next week to attend to the programme.
Adv Breytenbach agreed with Mr Maila, but suggested that the Committee first invite the Judicial Inspectorate for Correctional Services (JICS) to the Committee.
Mr Skosana asked, in light of the tight schedule, how urgent the CRL matter was; and whether the Committee should not first engage with the other committee that first dealt with CRL to get a better idea of the pertinent matters.
The Chairperson said the Committee dealt with religious rights and because South Africa has diverse and huge religious populations, ‘his phone never stops ringing’ with people even threatening violence. The message was that Parliament has let this ‘institution loose that are violating their rights to freedom of religion’. It was important that the Committee dealt with this matter with the CRL Commission to come to an agreement on an approach.
Mr Mncwabe agreed and said he understood the importance and that the Committee should meet with the CRL Commission. Religion “was becoming a time bomb’ with ‘foreign pastors looting our country in the name of religion”. It was becoming a problem and the Committee should try to assist, because it can result in a very bad situation.
Adv Swart said COGTA had dealt with this issue at length. Parliament has a committee report on the CRL Commission on regulation of religion and abuse of people’s beliefs. The first step would be to get that report, because it dealt with a lot of the concerns raised.
The Chairperson said he understood, but he felt that these things could lead to violence and the Committee should listen from a human rights angle. In the meantime, Members should look at the report which will be circulated in preparation for the meeting next week. On JICS, he said the Committee would also be reaching out to Judge van der Westhuizen to appear before the Committee next week.
The meeting was adjourned.
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