Public Protector: Tabling of Rules; Policy on Appointment of Special Advisor; Request by MP to remove Public Protector from office

Meeting report

The Chairperson welcomed everyone and said Chapter 9 institutions were important institutions established by the Constitution to support and strengthen democracy. The heads of these institutions must act without fear, favour and without interference from anyone. It was also important no one casted aspersions on those institutions. It was disturbing that the Public Protector (PP) has gone to the extent of saying that parliamentarians are interfering in her work. It was a serious suggestion and needed some introspection. Parliament had the Forum for Institutions Supporting Democracy (FISD) and if there are challenges the heads of Chapter 9 institutions can meet in that forum under the chairpersonship of the Deputy Speaker to address challenges. The law required that the rules and policies developed by the PP be tabled before Parliament, but there are processes that must be undertaken before that was done. He said he did not understand why the rules and policies were not processed through the FISD before being referred to the Committee. He said he will raise these process matters with the relevant powers to avoid future “war of words” with the PP or any head of a Chapter 9 institution over whether or not the Committee was interfering in her work or casting aspersions on her Office. That would not be consistent with the Committee’s constitutional duties.

Adv S Swart (ACDP) asked for clarity on what matter the Chairperson was referring to, because although he understood the concerns about Chapter 9 institutions, those institutions are accountable to Parliament. The PP was appointed by Parliament and the Committee cannot be neglectful of its duties.

The Chairperson responded and said the rules matter before the Committee should have been processed elsewhere before being referred to the Committee.

Adv Swart said he understood that it might be someone’s view that parliamentarians were interfering, but it would have to be motivated at the right time and he will not forsake his oversight duties.

The Chairperson agreed, but said there was already a debate in the public space about interference and it showed there was a problem which would have to be addressed. He thanked the PP for coming and said the Committee requested her appearance last week. The Committee raised concerns on why an apology was sent after hours a day before the meeting and the Committee was also not happy that the Deputy PP was not sent to appear. He asked the PP to take the Committee into her confidence.

Adv Busisiwe Mkhwebane, PP, apologised for not being able to attend the meeting scheduled for 6 June 2018. She said she tried her best to attend, because arrangements for her attendance had been made; and because the documentation for the meeting had been sent directly to the Speaker’s office, it was assumed that Members already had the documentation. She also said she did not send the Deputy PP, because she thought that the matters on the rules and the special advisor required her special attention. The Deputy PP will be given an opportunity to comment on this matter, but she reminded the Chairperson that she had written a letter dated 18 May explaining why she had not been delegating certain duties to the Deputy PP. She said she wanted to be at the meeting herself to ensure Members that she took the Committee seriously.

The Chairperson said he received the mentioned letter only the day before and the letter convinced him that there are good reasons why these matters were not delegated to the Deputy PP and he suggested that the Deputy PP not be required to address these issues now, but rather in another forum. For now, the Committee should focus on the matters before it. The PP has apologised and it will not take the Committee anywhere to debate that apology.

Mr W Horn (DA) said he uneasy with the fact that the Chairperson’s assertion that the content of the letter was sufficient on behalf of the Committee and that it addressed questions Members might have on the delegated powers of the Deputy PP. It was a matter that needed to be aired in the Committee and was not a call the Chairperson can make.

The Chairperson said the FISD was aware of the letter by the PP, but the letter had not been processed by the FISD and he was in no position to raise the issues in the letter. He said he will come with a report to the Committee on the letter once the letter has been processed.

Adv G Breytenbach (DA) asked why the letter had not been distributed to Members and she said the Committee was the oversight body of the PP, not the FISD and that matter should be debated in the Committee.

Mr L Mpumlwana (ANC) said he was not sure if the Committee had enough time to deal with micromanaging the PP. The Committee did not have the letter and it has been said there were reasons provided. He asked if the Committee was now investigating the reasons, and what the Committee would want to achieve with such an inquiry.

Mr G Skosana (ANC) said Members had a concern in the previous meeting on why, if the PP had a family emergency and could not attend the meeting, she had not send a delegation. Now there was a letter that has not been served to the Committee that explained why the PP had not been delegating certain responsibilities to the Deputy PP. That letter should have been tabled in the programme of the Committee even before last week’s meeting. For now, the Committee should accept the apology of the PP and the letter should be dealt with in another meeting.

Ms M Mothapo (ANC) referred to the last meeting and said the Committee felt much disrespected by the PP and her Office, because of the late apology and no delegation and it must be made clear. The Committee had not been informed of a letter and if the Committee accepted the PP’s apology, the Committee should proceed to deal with the matters before it.

Adv Swart agreed with Ms Mothapo. He said the Committee understood that emergencies arose and also understood that there was a degree of privacy with those issues. It was a matter of great privacy, the Committee, should, in private get an understanding of what happened. He however raised his concern on the letter dated 18 May and the Committee should get sight of the letter to understand the matter around delegation as well.

The Chairperson agreed that he and Members of the Committee felt much disrespected. He was invited by the media to talk to what happened at the meeting last week, but said he avoided it, because he felt he could not go and debate with the PP in the media, but rather in the Committee forum. Family emergencies did not give notice and he said he received the letter dated 18 May only the day before, after hours, and he did not yet know why. He will come back to the Committee after these things have been processed, because he wanted to avoid unnecessarily cast aspersions on Chapter 9 institutions.

Adv Breytenbach asked that the letter be disseminated to Members. She said while the Chairperson showed restraint in going to the media, the PP showed no such restraint, because on the night that she did not appear in Parliament, she thought it was fine to go on national television and slate this Committee. She asked for an explanation about that from the PP.

Mr T Mulaudzi (EFF) said the Committee should continue with the business of the day, but it should be on record that the Committee did not accept the apology from the PP, because Members did not have the letter stating the reasons for her absence yet.

The Chairperson said the majority of Members felt the Committee should proceed with its business, and he undertook to come back with a report on the letter.

Mr Mpumlwana said he understood that Members have accepted the PP’s apology.

The Chairperson disagreed and said Mr Mulaudzi was right, because you cannot accept something you have not seen. Once he came back with the report, everybody would be in position to either accept or reject.

Tabling of the Public Protector Rules

The PP introduced the delegation and said the rules were deliberated on extensively in 2010. By way of background, she said the rules were published for public comments in the government gazette on 29 November 2010 and presented to the Portfolio Committee on Justice and Correctional Services on 27 February 2012. This was followed by extensive engagements with the Department of Justice and internal workshops and consultations; and the Final Draft was verified by the Chief State Law Advisor. The PP Act required tabling and promulgation in the government gazette. Currently, the rules have been tabled with the Speaker and a noting has been received. She noted the Chairperson’s concerns on the forum in which the rules should be deliberated on, but that was for the Speaker to determine.

Mr Vusi Mahlangu, CEO, PPSA, took the Committee through the rules. He gave an overview of the presentation and repeated the background of the rules process. There are 11 chapters that covered definitions; purpose; how to lodge a complaint; processing matters; aspects relating to investigations; preliminary investigations; compliance with information requests and timelines; conducting proceedings before the PP; resolving complaints; concluding complaints; and general provisions. (See attached document).

The PP said there were issues that were raised by the Committee on 17 April that talked to whether the rules are aligned to best practices and the principles for a credible investigation established in PP vs. Mail and Guardian and other jurisprudence. She confirmed that the rules are aligned to that case; as well as constitutional imperatives and universally accepted standards. On limitation in respect of expansion on original complaint, she said the Handbook on Conducting Administrative Investigations was being reviewed and there are standard operating procedures (SOPs) to ensure expeditiousness, responsiveness and, ultimately, fairness of all investigations. On prioritisation of Executive Members Ethics Act (EMEA) matters, she said due to work pressures it was difficult to adhere to the 30 days to finalise provision. Rule 24(2)(b) provided for shorter timeframes within which  the PP expected requested information, documents or comments  from State institutions and the Executive.

Discussion

Ms Mothapo asked why it has taken such a long time for the rules to be implemented. She asked for clarity on what was meant by ‘extensive consultation’ and wanted to know if the rules will improve efficiency of the work. If so, she wanted to know what has been lacking in the mean time.

Mr Horn said he also wanted to address the fact that these rules were drafted in 2010 already. There was now a situation that the Promotion of Administrative Justice Act (PAJA) was also promulgated in the meantime. The High Court in the ABSA/CIEX matter made certain findings that the PP did not follow an administrative fair process during the investigation. The question begged if the rules were properly followed during that investigation. If that was the case, it must be concluded that the rules are not compliant with PAJA.

Adv Breytenbach said she saw in the rules a lot on how people must respond to the PP and not much on how the PP must respond to people. There have been many complaints lodged with this Committee and elsewhere that there are either no response by the PP, or people wait a long time for a response if they are lucky enough to get one.

Ms Mothapo asked if these rules will be published in all official languages and if it will be on the PPSA website.

Mr Skosana asked how the public was consulted during the consultation process. On the manner of submitting complaints, he asked if complaints can be submitted via email. According to clause 49, a person dissatisfied with the services of the PPSA, may approach customer services at the Head Office. There are no details given in terms of the follow-up processes and response times.

The PP said the rules as provided for in term of the PP Act, operated similar to regulations. Internally, the handbook on investigations, service standards and SOPs has been used in the mean time to make sure all 18 offices are operating in a similar manner. It will improve efficiency and publication in all official languages will ensure robust expectations from members of the public, because they will know what the service standards of the PP are. Currently these are not on the website and it should have been there a long time ago so that people know when a complaint was lodge how long an early resolution or complex matter should take. It will improve accountability.

On PAJA, the PP responded and said there had been a Supreme Court of Appeals (SCA) judgment after the ABSA matter where the SCA in a matter with Home Affairs, confirmed that the PP assessment was not based on PAJA, but on legality. The PP Act and the rules were followed as provided for.

On the PP’s response to the public, the PP said it was in the rules and the service standards stated the PP should update a complainant every six weeks and this was being internally used.

Mr Neels Van der Merwe, Senior Investigator, PPSA, said the rules were promulgated and published in the government gazette at the time as a draft. Submissions and comments were received from many State departments and bodies subjected to the PP rules. At the time the rules were more or less ready for promulgation, but there were some outstanding issues that the PP raised with the State Law Advisor. That was a process and over time other priorities in the Office overtook the prioritisation of the rules. One of the main issues was around contempt of the PP. The National Prosecuting Authority (NPA) was engaged at the time to find out if there was a process provided for in terms of criminal action in respect of contempt of the PP. Towards the end of the previous PP’s tenure the time was just not there to finalise the rules. This was delegated through various processes inside the Office and when some of the people left, there were some operational issues affecting the promulgation of the rules. On the consultation, he confirmed that all the submissions on processes and procedures were taken into account. State departments, e.g. were not very happy about timelines imposed at the time. It was made practical to promote accountability and to ensure that the Office could adhere to its own rules. The purpose of the rules was not only to regulate, but also to inform government departments as to the processes the PP followed. Even at this late stage of the PP’s existence, there are still responses from departments that refer to complainants as clients as if the Office was a representative or a spokesperson. The rules were recently submitted to the Forum of South African Directors-General (FOSAD) so that DGs at that level could take note of the rules. The purpose of making the timelines known was also to explain the consequences of what would happen if timelines were not adhered to.

The Chairperson asked the PP to clarify her response on the PAJA issue.

The PP said the SCA judgment in the matter of the Home Affairs vs. The Public Protector (308/2017 ZASCA), delivered on 15 March 2018, distinguished the decisions of the PP from decisions of an administrative nature:

1. The Office of the PP is a unique institution designed to strengthen constitutional democracy. It does not fit into the institutions of public administration but stands apart from them.
2. It is a purpose-built watch-dog that is independent and answerable not to the executive branch of government but to the National Assembly.
3. Although the State Liability Act 20 of 1957 applies to the Office of the PP to enable it to sue and be sued, it is not a department of state and is functionally separate from the state administration: it is only an organ of state because it exercises constitutional powers and other statutory powers of a public nature.
4. Its function is not to administer but to investigate, report on and remedy maladministration.
5. The Public Protector is given broad discretionary powers as to what complaints to accept, what allegations of maladministration to investigate, how to investigate them and what remedial action to order - as close as one can get to a free hand to fulfil the mandate of the Constitution. These factors point away from decisions of the Public Protector being of an administrative nature, and hence constituting administrative action. That being so, the  PAJA does not apply to the review of exercises of power by the Public Protector in terms of section 182 of  the Constitution and section 6 of the Public Protector Act.

Mr Horn said the judgment was noted, but the question still remained the same. In paragraph 38 of this judgment the SCA said that ultimately, in assessing whether the PP followed a due and fair process during an investigation, it was immaterial whether the guidelines are to be found in PAJA or based on the requirements of legality. Both are stemming from common law, although in PAJA, those grounds are codified. The PP has now been found by the courts not to have followed a fair process. These are 2010 rules and he asked if these rules have been looked at or have the rules not been followed.

Adv Breytenbach asked if the Office of the PP considered it bound by a fair process.

Mr Mulaudzi asked if these rules are being currently applied. Section 9 of the PP Act explained investigations and timelines and he asked if the PP was keeping complainants informed. In Limpopo there was a complaint on the former Venda Pension Fund and on 18 March 2018, complainants were informed that their matter has been finalised. People on the ground are complaining that they are not being informed and that the actuaries have finished their work, but there was nothing from the PP.

The PP replied that the principles of fairness are being followed, because section 79 of the PP Act on its own was a process of giving an opportunity to the implicated party to respond to whatever findings the PP might come to, and conclusions if the person was implicated.

The rules have been applied, with the investigation handbook, the service standards and the SOPs, being used internally. Every six weeks the PP should be informing the complainant on their matter. It was a struggle for investigators to move with that speed in making sure that every file got responded to according to the timelines, and especially for those matters that take a long time. Section 9 of the PP Act dealt with contempt to address how public servants who are in contempt of the findings are being held accountable, especially where a report was issued; or persons have been subpoenaed and failed to appear. The rules are basically to inform everyone to know what the service standards are. On the Venda Pension Fund, she said a Mr Tshiololi has been responded to. The group lodged the complaint with the PP and the report has been issued. She said she had met with National Treasury and the Minister of Finance several times where they committed to completion of the process by the end of December 2017. It was one of the remedial actions for Treasury to get the actuaries to compare the old Venda Pension Fund with the current GEPF files to determine all those people who were impacted or robbed so that they can be paid. The PP said she even appeared on Capricorn Radio to inform members there was nothing else for the PP to do except wait for National Treasury. Treasury has said that it has been disappointed by the company they have appointed for the process. In addition, another group took Treasury to court which also delayed the process, because now Treasury was expected to answer in court on the same issue. Every time there was an update from Treasury, Mr Tshiololi, who was the head complainant, has been informed. There was no solution until Treasury determined how much to pay.

The Chairperson said consultations within government took long and there are people who challenged government decisions and it took long for courts to hand down judgments. One can ask if the Office of the PP has to report to complainants within six weeks – if it was reasonable or not given the workload. If there are rules that have been made and laws that have been enacted after that, it was a question of aligning those rules with that law. There was an agreement that the PP Act needed to be reviewed and there was a responsibility on the Committee as well.

Ms Mothapo referred to legal assistance during investigations and she asked if it was not duplication, because previously there was a governance board structure within the Office which was offering pro bono services.

The PP said the legal assistance referred to State institution or even Members of the Executive when they are called in by the PP. The Act indicated that they can bring their legal advisors or even attorneys to assist, not defend, during the process.  The pro bono consultants were not legally qualified.

The Chairperson said it should be a matter of grave concern that regulations made in 2010 by the Fourth Parliament are tabled in the Fifth Parliament – it took eight years. There was something wrong with the system. The Committee was not required to approve the rules.

Policy on Appointment of a Special Advisor

Mr Mahlangu gave an overview on the policy and said the PP was expected to deal with complex issues that are brought to her attention and to give strategic direction. To do that effectively she required access to high level specialist advice. Such expert advice may not be readily available in the institution hence the need to appoint special advisors. Section 3 (1) (c) of the PP Act provided for appointment of staff by the PP to enable her to perform her functions. Since special advisors are prerogative of the PP, they will not be appointed through the normal recruitment and selection process. Special advisors will be appointed as and when required to advise the PP on specific issues.

To give effect to this section, a policy (determination) on the appointment of special advisors was developed to determine the conditions of service and remuneration level in accordance with section 3(9) of the PP Act. Outside the scope of the normal dispensation and determination for staff members as the Special Advisor position does not report to the CEO. Policy was benchmarked with the Public Service Ministerial Determination providing for the Dispensation for the Appointment and Remuneration of Persons (Special Advisers) Appointed to Executive Authorities, as that is the prescript referring to special advisors.

A special advisor was appointed on a three months contract from 1 April 2018 to 30 June 2018.  Section 3 (10) required that the PP should consult with the Minister of Finance and that was done. Section 3 11 (a) required that such a determination be tabled in the National Assembly and it was submitted to the National Assembly for tabling.

Discussion

Adv Swart asked if the contract was renewable; where the budget came from; and what the cost of the three month contract was. He asked if it was not more advisable to appoint someone to the Legal Services given that this unit was seriously under capacitated.

Mr Mulaudzi said he thought the special advisor was appointed in terms of the Act. Section 3 (1) (c) talked about the appointment of staff, not a special advisor. He said the Committee was being misled, because it was said that section 3 (1) (c) provided for such appointments. This was benchmarked against special advisor appointments by the Executive which are Ministers and the President and he asked what legislation authorised such benchmarking. He asked for more details on the qualifications and experience of the special advisor that has been appointed. 

The Chairperson asked if Mr Mulaudzi was saying legislation did not provide for the appointment of a special advisor. If so, whose fault was it?

Mr Mulaudzi said that was what needed to be clarified. He asked to which National Assembly was this tabled and was a discussion needed for something that was already done. Is it a fair process for South Africans?

The Chairperson asked if Members of Parliament did not finish their work during the terms of office and pass it on to the next Parliament, are they not contributing to the problem.

Adv Breytenbach said the CEO was clearly the person dealing with the presentations and one wondered why he could not have come and done it last week. She asked why it was necessary to have a new policy regarding the special advisor and on which sections this was done. On what authority were the determinations and conditions of service made and in terms of which section? She wanted to know when and where the Minister of Finance was consulted on this policy as required by the Act; what the response of the Minister was; and when consensus was reached with regards to the content of the document. Consultation as it was set out in the Act required consensus in the same way a Special Director in the NPA was required to consult with the Director of Public Prosecutions which required consent. She asked when that consensus was reached, if it was expressed in writing, and if so, perhaps it could be produced. She asked what special skills the incumbent special advisor possessed that qualified him for this position. It was common knowledge that he was a property lawyer and she wanted to know what special skills he possessed that qualified him for this particular position; and on what scale he has been appointed and why. She wanted to know what role the special advisor played in the Office of the PP. Does he have security clearance and if so, at what level and when was it obtained? Does the special advisor have any involvement in the writing of reports and if so, which reports? Who is in charge of quality control of reports that leave the office?

The Chairperson said in law decisions are taken in consultation or consultation took place and then a decision was made. He said he was hearing now for the first time that consultation required consensus. He asked to be ‘educated’, because he was not aware of any legal requirements of that nature.

Adv Breytenbach said the Act was very clear and section 3 (10) said ‘in exercising his or powers in terms of subsection 1 and 9, the PP shall consult with the Minister of Finance. That ‘consult’ has been found in many cases to mean consensus. It did not mean inform, but rather some sort of meeting of the minds should be reached.

The Chairperson said the PP, when she referred to compliance with legality; she cited a court decision and Adv Breytenbach said ‘there are many court decisions’.

Adv Breytenbach said she will find the case law and her debate was not with the Chairperson, but these are questions directed to the PP.

The Chairperson said it was his job to ensure that these questions are fair.

Adv Breytenbach said it was also the Chairperson’s job to disseminate correspondence to the Committee which he did not do.

The Chairperson said there was a need to review the PP’s legislation so that it was clear. Because the Committee has not done the work, anybody can interpret legislation as they please and that was not how justice should work.

Ms Mothapo said she would love to see the PP Office doing its work within the parameters of the law and the Constitution. She wanted clarity on the exact legislation that was used for the appointment, because the PP Act referred to ‘such other staff’. If it was ‘staff’, it should be part of the organogram, but the presentation clear stated that this appointee was not part of the staff complement. It was a deviation and it needed clarity, because the enabling legislation was the PP Act and the Constitution. There was a concern about security clearance, and a special advisor having access to sensitive documentation without the necessary security clearance.

Mr Skosana said the policy stated that remuneration would be at the level of an executive manager, but also that such remuneration was negotiable. He asked if that was not contradictory. He asked why the vetting process did not occur prior to appointment, rather than within 30 days of appointment. He asked how this expenditure will be reported on the Annual Financial Statements (AFS) given the normal recruitment and supply chain management (SCM) process.

Mr Horn said he was largely covered by Ms Mothapo, because he also wanted to raise the fact that one cannot rely on the provisions of the PP Act and then say that the special advisor will not form part of the staff establishment. It was illogical and nonsensical. In South Africa, in terms of the Public Service Act (PSA), Members of the Executive are allowed to appoint special advisors that did not form part of the staff establishment and did not necessarily contribute to the GEPF. There was a policy to which Ministers must adhere when they appointed their own special advisors. To what extent did the PP borrow from this policy? If the PFMA determined that she, for the purposes of handling money coming from the public purse, was the executive authority of the PP Office, whether she saw herself as more or less equal to Members of the Executive Authority of the country who are allowed to appoint special advisors in terms of the PSA. That would be problematic.

The Chairperson said as lawmakers, Members should create laws that did not create problems.

The PP responded to Adv Swart and said the contract was not renewable for now, because when the process of consultation was done with the Minister of Finance, the contract was only done for three months. It was accommodating the process of consultation and tabling. She noted the comments about budget constraints, but reminded the Committee that she had previously reported that there were savings created by the CEO post that vacated in December 2017. That was considered when the policy was developed.

On the policy, she said it was a matter of interpretation. The special advisor was appointed as a contract worker and it was a matter of interpretation whether it would be regarded as ‘staff’. The policy explained that the recruitment policy of the PPSA, which went through consultations with the union and the bargaining forum, was not applicable to the special advisor or to the private office of the PP.  

On benchmarking, the PP said that when the laws were made, it did not provide for the PPSA to have this function. The PP Act indicated that the PP, within her discretion, can appoint staff to assist in the performance of her duties.

On the expertise of the special advisor, she said the person was legally qualified, an admitted attorney, a conveyancer, and had some qualifications in banking law. His specials skills extended into socio-political issues, relating to economic transformation and the theory of class, specifically in dealing with the ABSA appeal and petitioning the SCA. On consultation, she said the PP Act indicated that the PP shall consult with the Minister of Finance. She said she wrote a letter to the Minister on 22 March 2018 and on 18 April there was a request for clarification from a Treasury official to which she responded. The Minister responded on 6 June 2018 stating that he cannot support the issue of the policy and consultation should start afresh. She subsequently responded to the Minister, stating that his office requested clarification in April and clarified to him that it was a consultation and it provided that the determination needed to be tabled before the National Assembly in 14 days. Such processes were constituted considering the delay by the Minister of Finance. She said her view was that consultation should be based on an approved policy, because the Minister was suggesting that the policy should be withdrawn. Consultation was more on the determination in his capacity as the Minister of Finance. In terms of the determination by the National Assembly, she said a letter was written to the Speaker and the policy was tabled accordingly. Since there was also no response as far as that matter was concerned, appointment was also based on the need to deal with the issue of responses to the process of appeal and the litigation which was before court. Previously the consultation on the organisational structure of the PP Office with the former Minister of Finance took place and the concern was only on the financial implications of the organisational structure. The comment on the determination expected from National Assembly was more on the compensation, i.e. why the PP decided on level 14. The PP Act was very clear in section 3 (11) (b) and (c) where it indicated that the function of the PP cannot be halted whilst waiting for processes to unfold.

On security clearance, she said the forms have been completed, but due to delays in processing by the State Security Agency (SSA), it was not yet done. She clarified that this person had nothing to do with reports or the quality assurance of reports. He only dealt with advising on decisions on issues indicated, and not on classified matters. On reporting of the expenditure, she said the savings were used from compensation of staff. It was not only the CEO post that had been vacant; there were other positions that were vacated by some of the senior investigators.

The Chairperson said that when laws are ambiguous, Members will find themselves in these kinds of positions. Laws should be certain and it was the responsibility of Parliament.

Adv Bretenbach said the policy on the appointment of a special advisor was signed by the PP on 14 February 2018 and implementation and effective date of the policy was the same date. Yet the Minister was only consulted as required by the Act in March 2018. She asked how the policy can be effective before the required consultation. The rules made provision for the special advisor to have security clearance, but the PP said SSA was ‘dragging their feet’. It was probably because they were too busy implementing the Electronic Case Management System (ECMS). The Deputy PP was precluded from functioning in the Office and doing his job, because the PP had an issue with his security clearance, but the special advisor had free reign with no security clearance.

Mr Horn said his question was unanswered and now the PP was saying, actually, none of the provisions regarding staff was applicable to what she called “the private office of the PP”. He asked what that meant and also wanted clarification why the PP felt that the relevant legislation and prescripts in respect of staff would not be applicable to people within the ‘private office of the PP’. On the qualifications and expertise of the current special advisor, Mr Horn said the PP had informed the Committee that she would only be appealing the 15% personal cost order and it was a matter of public record that that appeal was not successful. He said he failed to understand why, if the PP was not appealing the merits of these judgments, why she would need a specialist on socio-economic matters and theories of class.

Ms Mothapo said this was a very important Chapter 9 institution, i.e. the protector of indigents and especially rural people who cannot afford legal fees. Whatever was being done in the Office of the PP should be done within the parameters of the law. Section 3 (1) (c) of the PP Act provided that ‘the PP shall, subject to his or her directions, in the performance of his or hers functions, under the Act and the Constitution, be assisted by
such staff, seconded in terms of subsection (12) or appointed by the PP, as may be necessary to enable the PP to perform his or her functions’. Section 182 (2) of the Constitution provided that the ‘PP has the additional powers and functions prescribed by national legislation’. She said national legislation in this regard was the PP Act. It was not ambiguous and ‘such staff’ should be within the organogram.

Mr Mpumlwana said he thought ‘staff’ to mean people employed either permanently or temporarily.

Mr Skosana clarified his earlier question and said he wanted to know how this expenditure in terms of the remuneration of the special advisor would be reported in the AFS. It was not about the resources or where the money will come from, but rather the fact that there would be no reporting line between the special advisor and the accounting officer.

Mr Mulaudzi asked what informed the PP to use section 12 (a) of the PSA which talked to benchmarking to develop the policy; and if that section applied to a Chapter 9 institution. He referred to a news article that referred to the disbanding of the government advisory board which was pro bono. This board was a big help to the previous PP and in light of the financial constraints, he asked why remove a pro bono board to appoint a special advisor that needed to get paid.

The Chairperson said Mr Mulaudzi should have added if pro bono people got vetted and whether or not that system can be used to gain access to information they should not have access to.

Adv Swart asked what the cost of the three month contract was. He asked if this was tabled for Members’ information, because if it was a determination in terms of section 3 (1) (c), then in terms of section 3 (9), which referred to all appointments, the National Assembly can disapprove of any determination. He understood it to mean that the Committee could then either approve or disapprove this determination.

The PP addressed Mr Horn and said the executive office of the PP was the people that are linked to her term of contract. The terms of some officials appointed by previous PPs, e.g. the PA, spokesperson and Chief of Staff, should be tied to the PP to avoid creating a burden to the structure of the organisation if they did not have posts within that structure. She said she should have added that with the special advisor, they are working very closely on Vision 2023, which has been presented to the Committee. On petitioning the SCA, she confirmed that it was a personal cost order and the application to the Constitutional Court on direct access. The court a quo found that the PP had reasonable suspicion of bias and that has a bearing on all the findings, because the findings led to that personal cost order. The relevant affidavits have been filed and it dealt with everything in the judgment of the court a quo.

In response to Ms Mothapo, she said she accepted that ‘staff’ included both contract and full time employees.

On reporting the expenditure, she said it will be reported under ‘contractors’.

She said the PSA was not used. The PP under the PP Act can determine conditions of service. It was a question of benchmarking, but not having the resources to appoint specialists to advise, it was checking what documents were under public services.  She said she already mentioned in April that the Department of Public Service and Administration (DPSA) was approached, because of their capabilities to determine the service model, delivery models and streamlining service delivery with existing structures, instead of appointing private consultants. She said the leadership of the organisation decided that the board would not be used, because they were not legally qualified.

On the determination, she said the Act said, if the National Assembly disproved of any determination, not the policy, ‘such determination shall cease to be of force to the extent to which it is so disapproved. If a determination ceases to be of force as contemplated in paragraph (b), anything done in terms of such determination up to the date on which such determination ceases to be of force shall be deemed to have been done validly. Any right, privilege, obligation or liability acquired, accrued or incurred up to the said date under and by virtue of such determination, shall lapse upon the said date.

The Chairperson asked if there was a determination.

The PP replied that the letter to the Speaker was seeking that determination, i.e. was the remuneration for the special advisor at level 14 fine or not.

The Chairperson asked if the PP agreed that it was premature for the Committee to considering approval of the policy.

The PP said by sending the letter remuneration, allowances and other conditions of employment of this particular person should have been deliberated on.

The Chairperson said it appeared the PP was being let down by other government institutions. He asked if the Committee should overlook that or give the PP an opportunity to await those other institutions to do the necessary so that everyone can be on the side of the law.

The PP said she was willing to receive a response after she has submitted the request. In fact, the Minister of Finance has responded and she said she has requested a meeting with the Minister to get clarity and an official response on the determination. The Committee can indicate whether there would be a response in writing, because the Speaker has referred this matter to the Committee.

The Chairperson said he started the meeting by voicing his concern on how matters are being processed. If the relevant institutions of government did not do the necessary on time, it will affect the PPSA.

Ms Mothapo said the Committee did not have the necessary information to approve or disapprove. The matter should be put in abeyance until the Committee at least had an opportunity to confer with the Portfolio Committee on Public Service and Administration and others.

Adv Breytenbach said none of her follow-up questions were answered.

Mr Mpumlwana said there are two issues: the policy as well as the determination on remuneration. The determination would perhaps be a matter for Treasury and the policy, because the Committee was only coming back in August, could be provisionally approved, subject to the finalisation of the determination.

The Chairperson said time constraints might lead to wrong decisions.

Adv Swart agreed that the Committee could not take a final decision until all the information was available. He asked for the three month ball park figure, although it was academic, because it ended at the end of June, but it would be helpful in assisting the PP going forward.

The Chairperson said the Committee really could not take this matter any further and must allow the PP to engage with the relevant institutions.

Adv Breytenbach said she would like her questions answered.

The Chairperson said it cannot be taken further, because the matter will be coming back to the Committee at some point and he said he will remind Adv Breytenbach of her questions.

Mr J Steenhuisen on the request to expedite procedure to remove the Public Protector from office

The Chairperson said the Speaker of the National Assembly referred a matter based on a complaint raised by the Chief Whip of the DA against the PP to the Committee. He said he was obliged to say that South Africa was a Constitutional State that believed in the due process of law. There are internal processes within Parliament that guided the work. It was important that everyone understood how those processes worked. This was a multi-party democracy – all political parties represented in Parliament belonged to the Chief Whips Forum. These parties meet in the Chief Whips Forum and deliberated on issues, agreed on what needed to be done in Parliament, and are also represented in the Programming Committee. The Portfolio Committee was a very competent committee that can deal with any matter before it. He said to find itself in a situation where the Chief Whips of political parties that are represented in the Chief Whips Forum and in the Programming Committee are going to be complainants before the Committee, was difficult to understand. He asked if the representatives of the political parties in the Committee are not competent do deal with the issues before the Committee. He also asked if the Committee will be allowing Chief Whips of political parties who are represented in all the structures that processed matters to become complainants. The Committee did not even give time to members of the public. He said he had complaints in his office from members of the public and he asked if the public will also be allowed to be complainants before the Committee. It was untoward that Chief Whips of political parties who have had opportunity to participate in all the processes of Parliament became complainants before the Committee where they are competently represented. This matter was referred by the Speaker and the Chief Whip of the DA will be allowed to state his complaint which was written in English – the official language of Parliament which all Members could read and understand. If this is what the rules of Parliament allowed, those rules would have to be revisited.

Adv Swart said he disagreed. It was referred by the Speaker and it was a matter of national interest. It was incumbent upon the Committee to look at a complaint and he fully supported that the complainant, on the basis of the audi afteram partem rule, should be allowed to raise his complaint.

Adv Breytenbach said Mr Steenhuisen has, quite correctly, raised the matter with the Speaker and the Speaker referred it to the Committee. It was not the first time and the process being followed was perfectly correct.

Mr Mpumlwana said he was not sure if Mr Steenhuisen was bringing this matter before the Committee in his personal capacity, or as the Chief Whip representing the DA. If it was a DA matter, the DA members in the Committee should join Mr Steenhuisen.

Mr Skosana said he understood the concerns of the Chairperson and agreed that perhaps the rules of Parliament should be looked at. Mr Steenhuisen should not be blamed, because he wrote to the Speaker and the Speaker referred the matter to the Committee.

Mr Horn said it was irrelevant that Mr Steenhuisen was also the Chief Whip of the DA. There can be no dispensation that Members of Parliament who are senior office bearers of their respective parties are prohibited from performing their functions as Members. It was an unfair statement to say that their forum where they should deal with issues was the Chief Whips Forum.  The Chief Whips Forum has a specific function to perform and it would be dangerous for the Committee to verge on taking a stance that if you are a Chief Whip of a political party you are not entitled to alert the Speaker to a possible situation where the head of a Chapter 9 institution has performed her functions in a manner that should possibly be scrutinised by Parliament. The Committee should take the warning from the UDM vs the Speaker case where it said that irrespective of party membership, all MPs have a duty to the public and the Constitution. He said he found it astounding that the Committee has embarked on quite a number of public participation processes since 2014, and by the Chairperson’s logic it was a waste of time to have listened to past verbal submissions.

The Chairperson said he has not called on the Committee to take a decision. He has merely put his concerns and that he will raise the matter in the appropriate forum.

Mr Steenhuisen said comments should be directed to the Speaker since he was under her advice. All 400 MPs enjoyed the same rights to participate and he said the fact that he was a Chief Whip was neither here nor there. He thanked the Committee for the opportunity to appear to consider the request that he made to the Speaker to initiate proceedings in terms of section 194 of the Constitution.

He made it clear that today was not about determining “the guilt” of the PP and he merely wanted to set out the reasons he believed there was a prima facie case for this Committee or any other committee the Speaker ultimately determined to recommend the commencement of proceedings to examine the fitness of the PP to continue in office.

Essentially the PP obtained her power from section 182 of the Constitution. It set out very clearly what those powers are. Also at section 181, it sets out the accountability mechanism created over the PP. Section 185 also sets out very that the PP’s office and other institutions are accountable to the National Assembly. It was for this reason that section 194 (1) of the Constitution vest the power of removal of the PP with Parliament and section 194 (a) sets out the grounds for such removal, being three main reasons: misconduct, incapacity or incompetence. It will have to be a finding by the National Assembly to that effect and thereafter an adoption by two thirds majority of the House to remove that person from office. To proceed with any inquiry in to the fitness of the PP to hold office, a prima facie case would have to be advanced on the basis of either one or a combination of those three grounds.

For the purposes of today’s interactions he wished to focus the grounds of his matter on incompetence. The dictionary defined incompetence as ‘not having or showing the necessary skill to do something successfully’.

The judgement by Judge Murphy found that the PP grossly overreached her powers when she recommended in her report that the Constitution be amended to alter the mandate of the South African Reserve Bank; when she sought to dictate to Parliament, to whom she was accountable how and when legislation should be amended. Her actions in this regard have compromised the independence of Parliament and the effectiveness of parliamentary procedures. In doing so she showed a very poor understanding of both the law and her powers. The other finding was that she sacrificed her independence and impartiality as revealed in a supplementary affidavit when she consulted in a meeting with the Presidency and SSA on her remedial action that she intended recommending in the report. Judge Murphy found that the PP had unconstitutionally and irrationally intruded on Parliament’s exclusive authority and that the PP had gone about crafting the recommendations in that particular report in a “procedurally unfair manner”

The judgment in the Gauteng High Court which was handed down on 16 February 2018 on the same matter, in paragraph 49: ‘There can be no doubt that the PP has made findings and come to conclusions and did not make recommendations’. In paragraph 55: ‘The PP’s aim was to amend the Constitution to deprive the Reserve Bank of its independent power to protect the value of the currency’. This was an aspect of the remedial action that had nothing to do with the President, which had nothing to do with him. In paragraph 94 it was held that it was disingenuous for the PP to change the focus and remedial action of her investigation substantially without affording the reviewing party the similar opportunity and at paragraph 101: ‘We are of the view that a reasonable, objective and informed person take into account all these facts with a reasonably apprehension that the PP would not have brought an impartial mind on the issues before her. We therefore conclude that it has been proven that the PP is reasonably suspected of bias contemplated in PAJA’. It was held in paragraph 103 that in terms of section 62 (c) of PAJA, the conduct of the PP was procedurally unfair and moreover, that her remedial actions that she ordered were the product of procedurally unfair processes and are unlawful. At paragraph 120 it found that the PP did not conduct herself in a manner which should be expected from a person occupying the PP’s office.

He directed the Committee to the affidavit of the Speaker which was also submitted into the case. The Speaker challenged the findings of the PP, the approach of the PP, and rightly ‘vigorously protected and defended the dependence of this institution’ by not having its powers encroached upon by other arms of government or organs of State.  The Speaker made a number of important points. It was her belief that the order made by the PP was unconstitutional. Section 1 (c) of the Constitution sets out that South Africa was governed by rule of law - one the most basic fundamental factors of the rule of law was the doctrine of the separation of powers. It was astounding that somebody in such an important office would herself be so completely out of touch with the most basic principle of separation of powers.

The Speaker said, in her affidavit, that only Parliament may decide what legislation to initiate, consider, pass and reject. The Speaker went on to say that the order given by the PP was itself unconstitutional because it unlawfully trenched upon the exclusive domain of Parliament. That would be so even if the PP intended no more than to order the Chairperson (of this committee) to introduce the motion to amend the Constitution. The Speaker also pointed out that the PP’s behaviour was fundamentally undemocratic because sections 42, 43 and 44 gave effect to what was a multi-party system of government where the National Assembly was elected to represent the people. Therefore the actions of the PP were undemocratic and detrimental to the values of a democratic government, accountability; openness and responsiveness to allow the PP or any other elected official order this Parliament to amend legislation of her choice. The Speaker also traversed on the separation of powers in her papers.

He said he attended the tail-end of the meeting with the PP this morning and he had copies of the appeals the PP submitted that applied for both direct access to the contents of the Constitutional Court and the SCA simultaneously where sought to attack several of those judgements. Even if the scathing judgments by Judge Murphy and the North Gauteng High Court are set aside, which went on further than just criticising the PP’S remedial action, her fundamental breach of the Constitution, her complete lack of basic understanding of the mandate of her office by; who criticised her vociferously on the intrusion on the powers of this Parliament, went further by imposing a Personal Cost Order against the PP, which was under appeal. The PP, however, did not appeal the findings on her lack of understanding of her mandate and the fact that she chose to “willingly or unwillingly encroach on Parliament’s ability to perform its function”.

The Speaker’s concerns around separation of powers have been exacerbated by the admission that the State Security Agency (SSA) has been contracted to perform a variety of functions in the PP’s office, including but not limited to case management systems and other matters. It was a clear assault on the independence and the impartiality of this important constitutional office.

Courts recently described the office of the PP as “one of the most invaluable constitutional gifts that our nation has against the fight against corruption, unlawful enrichment, prejudice and impropriety in State Affairs and for the betterment of good governance. The person occupying the office is required by the governing legislation, the PP Act to be “a fit and proper person to hold such office”.

There are sufficient grounds that existed to allow at the very least, conduct an inquiry into the fitness of the PP to hold office. This meeting was for a guilty verdict, but this Committee was the custodians of the oversight and accountability enrolled, trusted by the Constitution to Parliament should discharge its role by allowing an inquiry to assess the fitness of the current PP to hold office, and failure to do so will be a breach of the responsibility entrusted onto the National Assembly to exercise oversight and hold the PP accountable. If this Committee did not decide to hold an inquiry, and the PP continued with her cavalier approach to the basic fundamentals of the law, the responsibility will shift from the PP to Parliament.

The Chairperson said some people, some even leaders of political parties, have accused the judiciary of judicial overreach. He asked if it warranted an inquiry into the fitness of judges who have been accused of such overreach. SSA was the only department qualified to vet people. He asked if it was wrong to have recourse to that department if vetting needed to be done. The Constitution was a very concise document and open to various interpretations. Even great legal minds differ on interpretations of provisions of the Constitution. He asked if heads of Chapter 9 institutions who interpreted those provisions differently, are by virtue of those differing interpretations, disqualified from holding office. PAJA was passed after the PP had developed some regulations and the Supreme Court said the PP was bound by the principles of legality, and not PAJA. He asked if the accessions in the Speaker’s affidavit were conclusive or are they just the positions of the Speaker. He asked if the Committee should use those accessions as conclusive evidence that the PP was not fit to hold office. Lawyers are known to make errors of judgment and fact and he asked if heads of Chapter 9 institutions that erred should be treated differently from judges who made the same. He asked which other state institutions should Parliament or Chapter 9 institutions have recourse to if they wanted people vetted before they can be appointed.

Mr Steenhuisen responded that it was difficult to compare, because Chapter 8 dealt with courts and justice while Chapter 9 was a standalone chapter that created institutions meant to partner with Parliament in protecting and entrenching democracy. If judges erred, there was a process laid out how to deal with it, but the Constitution was very specific on how a Chapter 9 institution should be held to account. He agreed that people made mistakes and that interpretations may vary, but said that the separation of powers was perhaps one of the most fundamental and basic tenets of the rule of law. Surely when someone was the head of a Chapter 9 institution and followed an appointment procedure that presumed that that person had the most basic understandings of that; and when that person acted in a way that undermined that faith, they must be held accountable. The accountability mechanism was surely an inquiry to understand how that person arrived at that decision. He said he had a variety of personal views on the efficacy and credibility of the SSA, but they should do the vetting. The concern was on the assault on the independence of the PP by having an institution accountable to the Executive through the Minister of State Security, being given an eye into the Office of the PP.

Discussion

Ms Mothapo thanked the Chief Whip. A party not happy with the remedial actions of the PP can apply for a judicial review. She wanted clarity on the fact that despite the review application processes being in place, the PP can be removed on the grounds of incompetence as outlined in section 194.

Mr Skosana said part of the court judgment was being subjected to judicial review and he also said the Committee should among others base its finding on the lack of understanding on her mandate by the PP, which according to Mr Steenhuisen, was not a subject to a judicial review. A letter dated 9 May 2018 addressed to the Chairperson from the PP in response to allegations contained in the Webber Wentzel letter dated 15 March 2018, paragraph 5 stated: ‘The main grounds of appeal to the Constitutional Court and the SCA are to set aside paragraph 3 of the order, in particular the court’s finding that there is a reasonable apprehension that I was biased and I do not fully understand my constitutional duty to be impartial and to perform my functions without fear, favour or prejudice’. He wanted clarity, because according to the PP it looked like it was part of the judicial review. Mr Steenhuisen raised the issue of the case management system as a challenge. He wanted clarity if it was a challenge for the institution or the incumbent in the institution.

Mr Mpumlwana referred to the statements by Mr Steenhuisen: “She released an inflammatory statement against the DA” and she labelled the opposition criticism of her as ‘unpatriotic’. He asked if these and other things that made the DA unhappy about the PP personally, are part of the reason he wanted the PP gone. On the ABSA case he said that there were allegations that SARB illegally used public funds to bail out Bancorp which was bankrupt, and which was later taken over by ABSA. The PP recommended that ABSA must pay back these public funds, because it was corruption. As a person clearly against corruption, he asked if Mr Steenhuisen was not prepared to credit the PP for fighting corruption and acknowledge that mistakes could be made in the process. He referred to the judicial review issue mentioned by Mr Skosana and asked if this should not wait until those matters are finalised. He said there are quite a number of judgments by senior judges reversed on appeal with damning remarks by the SCA directed at the judge of the court a quo. He asked if that judge would then be assumed not fit and proper. There was a lot of emphasis on the fact that she should have known that she cannot change the Constitution, but the Constitution referred to the ‘primary’ role of SARB being the currency, not the ‘only’ role. He asked if this pointed to the PP really wanting to change the Constitution. In addition, by the time this judgment was made, the PP had already withdrawn that particular point. He said if he was the judge in that case he would not have bothered with something a person has already withdrawn.

Mr Mulaudzi said on 20 June 2017, the EFF published a statement on the remedial actions on the ABSA case. The party agreed with the remedial actions against ABSA, but was uncomfortable with the PP’s statement instructing Parliament to amend the Constitution. In her affidavit she agreed that her statement was wrong. Once the High Court judgment that stated the PP should pay 15% of the legal bill was released, the EFF was ready to initiate section 194 processes. The EFF agreed that section 194 processes should start with immediate effect.

Mr Horn asked if Mr Steenhuisen could unpack a bit further the North High Court findings against the PP which are not impacted by the appeal.

The Chairperson asked if it was not common practice in pleadings that you admit and dispute other allegations.

Mr Horn replied that Mr Steenhuisen said that the most reliable findings of fact that could guide this Committee in deciding whether there was a case are in the judgment. ANC members have already indicated that the Committee should wait for the outcome of the appeal. Mr Steenhuisen alluded to the fact that the PP has chosen not to attack all of the adverse findings made against her. It would mean that she was in agreement with some of the adverse findings made by the North Gauteng High Court in two instances against her. If these findings point the Committee to a situation that concluded that those mistakes are fatal, pointed to an inability to perform her functions, be it based on an inability to understand or grasp her role; or the requirement that she act in an impartial and objective manner, then the Committee should take heed of those.

Adv Swart said there was nowhere in the judgment where it stated that the PP found corruption. Her report instructed the SIU to reopen its investigation into the bailout.  He asked if the fact that the court made a punitive cost order not make a compelling case to have an inquiry. It was highly unusual and in it the court said: ‘It was necessary to show our displeasure in the unacceptable way in which the PP conducted her investigation, as well as in her persistence in opposing all three applications to the end’. He asked Mr Steenhuisen to comment on the affidavit he referred to by the Speaker which was an affidavit on behalf of herself and the Chairperson of this Committee. Those facts in the affidavit were not disputed and the serious allegations made by the Speaker against the PP at the very least justified instituting an inquiry. If not, the Committee would be faulting its oversight responsibilities which had already been pointed out by the Constitutional Court in other matters (Nkandla, EFF vs. the Speaker, etc.).

The Chairperson said the Constitution said the PP may take remedial action and anybody who disagreed may challenge that before the court. He asked if this did not mean that the Constitution foresaw differences which should be adjudicated by courts. Was everybody who lost deemed incompetent by virtue that they lost a case that had to be adjudicated by the court?

Adv Swart said the court found that the PP acted disingenuously and that was very serious. It was not purely a review application that has happened in many cases, but the court gave a personal cost order. This was far more serious and coupled with the affidavit by the Speaker, was the most serious indictment against the PP.

Adv Breytenbach agreed with Adv Swart and said the Committee had one opportunity to do the right thing in this regard and that opportunity has gone by unused. The Committee has been castigated in the courts for not performing oversight duties in accordance with the Constitution and if this Committee did not deal with this matter, any future unacceptable behaviour by the PP will lay squarely on the shoulders of the Members of this Committee.

Ms Mothapo said Mr Steenhuisen made mention of lack of understanding of Constitution and legislation.  She asked will the same be said of her predecessor on the State of Capture Report where she recommended amending the EMEA where it related to accountability and disclosure by Members of the Executive, to include also the President.

Dr C Mulder (FF+) said there was a lot of uncertainty about the role of the PP during the Nkandla matter. After the judgments, there was clarity. Mr Steenhuisen’s request dealt with the fact that Parliament played a pivotal role in terms of the Constitution in appointing the PP. Parliament also played a vital role in the scrutiny of the Office of the PP. The constitution clearly stated that all institutions, including the PP, were accountable to the PP. He agreed with Adv Swart that it was a very serious finding made by a court to say that the PP should pay in her personal capacity – it was unheard of. If the Committee decided today not to take any action, he asked if that would be what the Constitution expected in terms of accountability. It was the task of parliament, acting through its committees, to investigate. He asked why it would it be wrong to get the PP’s response. He urged the Committee to have an open mind; put the facts on the table; and let the PP defend her position.

Mr Steenhuisen responded and yes, any person who was aggrieved with the remedial action by the PP could approach the court. This was not a dilatation of those rights for anybody. He said he was not an applicant with any matter with the PP that was under review. The review of a finding of the PP was vested in the courts and the review of the fitness of the PP to hold office; and that was vested, in terms of section 194, with Parliament. He said he did not want to comment on the previous PP, because the “bullet was through the church”, but as the custodian of the EMEA, she probably had a little more leeway in terms of that particular legislation.

In response to Mr Skosana, he replied that what was attacked in the appeal was a very narrow aspect of the judgment. She was not attacking that she entrenched the rights of Parliament or that she behaved unprocedurally, but rather the personal cost order.

In response to Mr Mpumlwana, he said the intentionally strayed away from dealing with matters where there are political party involvement with the DA. The original letter submitted to the speaker in September 2017, requesting the commencement of proceedings, which predated those press statements. Anybody fighting corruption needed to be supported, but sloppy and ill-conceived reports that are so easily overturned, undermined the fight against corruption. Even if ABSA or SARB was guilty of corruption, the basic misunderstandings of the PP and her report have basically tripped up the fight against corruption that could have well been there. Reports should be insulated by a proper understanding of law. People made mistakes, but the consequences of that particular report had a devastating effect on the country and its people. The currency instantly depreciated by 2.05%, R1.3 billion worth of South African government bonds were sold on the day by non-resident investors, and the banking sector shares were negatively impacted. The very next day (20 June), Standard & Poor's global rating warned that SA’s credit rating will be downgraded further if government was to give effect to that remedial action. Such mistakes with such profound consequences put a duty on parliamentarians as the custodians of the oversight and accountability role, to hold those persons accountable. The correct way to do so would be to embark on this inquiry.

The seriousness of the personal cost order was summarised this way in the judgment: ‘Representative litigant whose conduct is so unreasonable as to justify the special order can, despite acting in good faith, be ordered to pay the costs de bonis propriis. The court will not however make such an order lightly. It has been held that such a order should not be granted in the absence of some really improper conduct and that the fairness or unfairness of the proceedings should not be scrutinised too closely. The criteria has been stated to be actual misconduct or any sort of recklessness and the reasonableness of the conduct should be judged from the point of view of the person of ordinary ability, not that of a trained lawyer’. The PP failed the most basic hurdle in terms of interpreting the law. The courts have been very supportive of the heads of Chapter 9 institutions, specifically because they understood the unique role they found themselves in. It was unprecedented for the head of a Chapter 9 institution to find herself in the situation.

There was no irreparable harm to initiate an inquiry. Members would be protecting themselves from a charge of dereliction of duties and exercising oversight and accountability. These allegations needed to be tested. He thanked the Committee for the opportunity.

The Chairperson said the expressed power of Parliament to inquire into the fitness of the PP to hold office was exclusive and not necessarily dependent on any court finding. The determination of the fitness of the PP to hold office was a factual finding only Parliament can make. He agreed with Dr Mulder that there was a rule of natural justice to ‘hear the other side’. He said he was not keen to be party to situations where heads of Chapter 9 institutions are hauled into the public arena, because it might suggest to the public that Members did not have confidence in these heads of Chapter 9 institutions. He requested that Mr Steenhuisen submit a report that will be referred to the PP for her comments in writing and submit it to the Committee. A decision will be taken after.

Adv Breytenbach asked for specific timelines.

The Chairperson said the agenda of Parliament was determined by the Programming Committee and will be determined at that level.

Mr Horn said at the last discussion the Chairperson said this Committee had permission to come back earlier before recess ended in August. He agreed with Adv Bretenbach and said at the very least there should be timelines set for the written submission by Mr Steenhuisen and written responses by the PP by the end of July.

The Chairperson he will do everything within a reason and inform Members of the timelines.

The meeting was adjourned.