Neither the Western Cape Gambling and Racing Board (WCGRB) nor the Western Cape Provincial Treasury presented their reports to the Committee. Instead, a letter that had been sent by the WCGRB to the Committee was discussed. The WCGRB wanted its meeting with the Committee to be in-camera due to a recently opened case against the WCGRB. A legal advisor was present to advise the Committee on the way forward, and it was found that the advisor requires more information to adequately advise the Committee. Discussion on whether the matter was sub judice and reason enough for an in-camera meeting between the WCGRB and the Committee made up most of the meeting. Members of the Committee also raised concerns of being limited in its oversight functions and requested reasons as to how an open meeting with the Committee would jeopardise the WCGRB’s negotiations and position in the legal matter.
The WCGRB was called in during the second half of the meeting and their legal advisor provided reasons as to why their meeting should be in-camera. By the end of the meeting the Committee was divided between requesting that the WCGRB present its presentation, omitting sensitive information, and allowing the WCGRB to re-prepare its presentation and conduct it at a later date. The Chairperson asked for consensus and the Committee decided on the latter. However, the Committee was clearly divided along political lines.
The Committee also adopted the Draft Committee Meeting Minutes of 23 October 2018.
The Chairperson welcomed everyone to the meeting and informed the Committee that National Treasury’s Head of Department requested that point two and three be swapped as he was in another meeting.
Letter from the Western Cape Gambling and Racing Board to the Committee
The Committee received a letter from the Western Cape Gambling and Racing Board (WCGRB) saying that the matter they have been requested to report on to the Committee has been taken to court and is sub judice, which means it is under judicial consideration and, therefore, prohibited from public discussion elsewhere.
The Chairperson invited Members to deliberate on this matter.
Ms C Beerwinkel (ANC) read the letter which reads that summons have been delivered but the matter has not been assigned to a judge. Can the Committee get a legal opinion from a legal advisor regarding this?
Mr P Uys (ANC) remarked that the conversation should not take place in camera, as the Committee has no information to confirm this, therefore the discussion should take place in an open meeting.
Mr T Simmers (DA) agreed with Ms Beerwinkel.
The Chairperson remarked that that Mr R Maasdorp, Western Cape Provincial Parliament Legal Advisor, has been requested to be on standby to advise the Committee on whether the matter is sub judice.
Mr R Mackenzie (DA) asked whether Mr Maasdorp would have specific details about court dates and so forth.
The Chairperson confirmed that Mr Maasdorp does not have specific details about court dates. He added that he spoke to Mr Maasdorp prior to the meeting and presented the matter to him, explaining that the matter meant to be reported on in the meeting is sub judice. The Chairperson requested his guidance to the Committee on the process.
Mr Maasdorp asked what the Committee sought clarity on.
The Chairperson replied that the Committee would like to know what the process following the receipt of such a letter should be. He added that the Committee would like for Mr Maarsdorp to read the content of the letter and advise whether the matter is in fact sub judice. He further asks, how should the Committee engage with the Department and the WCGRB?
Mr Maasdorp responded by highlighting that given the short notice by the Committee, the WCGRB has raised the fact that there are court proceedings between stakeholders and itself. Therefore, the WCGRB is unable to report on its accountability responsibility. He believes that in order to assess whether the matter is sub judice, he would need more information on where the court proceedings are currently at. The lodging of papers does not render a matter sub judice. He added that the constitutional obligations that rest with the Committee regarding oversight responsibilities, is profound and that the Committee, as proxy on the community’s behalf should hold the Executive accountable. Furthermore, the sub judice rule sets a high threshold and cannot, therefore, be speculative. There must be real and substantial reasons to make a matter sub judice. In order for him to make an assessment on whether the matter is sub judice, it needs to be determined whether it outweighs the constitutional mandate of the Committee. His bias is towards upholding the legislature’s responsibility towards oversight and added that there is a small chance that judicial officers will be swayed. Citing the van Breda case, he commented that the public’s right to know outweighs the notion of keeping information away from the public.
The Chairperson remarked that the Committee’s independence needs to be protected. He thanked the advocate for his briefing.
Ms Beerwinkel asked Mr Maasdorp to explain the difference in the role that the Committee has in comparison to the judiciary, as the Committee performs oversight, not making findings. How does this difference implicate the WCGRB’s request to not report to the Committee?
Mr Mackenzie cited rule 61 for Committees, which concerns preventing information from being distributed. In this case, because the parties are in negotiations, to reach an out-of-court settlement, he understands why they would not want information to be distributed.
The Chairperson commented that the advocate needs more time to interrogate the document. He also posed the question of the role of the Committee and the judiciary.
Mr Maasdorp answered that the oversight responsibility is constitutionally founded and that its primary objective is to ensure that the Executive delivers as it has promised or indicated, therefore, hold the Executive accountable. On the other hand, the courts, judiciary, apply prevailing law to facts that are presented before it. The sub judice rule has its origins when a jury was part of the court structure. It was comprised of lay people who had their own prejudices, worldviews and so forth. Today, all judicial officers have access to all forms of information, therefore, diluting the notion of sub judice. To qualify as sub judice, there must be a real demonstrable risk that will ensue if information is made available and distributed.
Mr Uys remarked that the Committee should decide how it is going to proceed, especially since the legal advisor is present. The issue being presented is not new and it cannot become sub judice because a root operator decided to go to court. At these meetings, the Committee discusses the principle in the Auditor General Annual Report – there was no legislation in place and they have agreed to remedy it. The WCGRB had to go to Treasury for funding and this is public knowledge. The Committee wants oversight over the WCGRB in order to gain clarity on what transpired so that government, provincial treasury and various others were put in a precarious position. What is in documentation is not different from what the Committee has been told, therefore, the facts are already there. The WCGRB has already announced wanting to amend the Bill, therefore, the WCGRB should explain to the Committee so that it can perform oversight.
Ms Beerwinkel remarked that, based on the advice given to the Committee; the meeting does not need to be held in camera.
Mr Mackenzie sought clarity on whether the advocate requires more information.
Mr Maasdorp responded that there appears to be negotiations underway between parties. Moreover, it is conceivable that, during negotiations, parties may not wish to disclose information, as it might undermine the process. He is unsure of which stage the process is currently at. He added that, even if he had been given information, the information will be assessed in relation to the responsibility of oversight. The main consideration will be whether the public has the right to know.
Mr Simmers commented that, if the Committee is to exercise its role effectively and make decisions in the public’s interests, it would also need to obtain that information. The letter only states a fraction of what the Committee needs and wants to know. The Committee should make an informed decision. Should the Chairperson not be given the necessary information?
Ms Beerwinkel highlighted that the legal advisor’s repetition of the Committee’s oversight role should not be diluted by speculation of what can and might happen. Why is it that the Committee cannot see what the WCGRB wants to submit? The Committee should deal with the report itself; the information has already been discussed. The discussion amongst the Committee can never influence a judge and his or her decision.
Mr Uys added that the Committee can proceed in an open meeting and obtain information from the WCGRB. The longer the issue persists, the more suspicion will surround the matter. He proposed that the WCGRB engage with the Committee.
The Chairperson noted that the Committee should respect the WCGRB’s requests. The WCGRB is not unwilling to engage but they have made requests, of which includes doing it in-camera, and the Committee should agree to meet on the WCGRB’s terms. He asked the advocate how the Committee should respond to this request.
Mr Maasdorp recalled that there have been requests to have meetings in-camera. The considerations need to be properly balanced. If a Committee is mindful that the Executive is obliged to report to the Committee, the Committee’s wishes should be submitted to. In the WCGRB’s point of view, one can understand their request to meet in-camera. However, he is unsure as to whether there is enough substantiation for an in-camera meeting. Furthermore, to retrieve documents disclosed to the Committee is presumptuous of the WCGRB, as it imputes on the honour of Members. Disclosure should be public.
The Chairperson emphasised that the WCGRB is prepared to submit a written submission to the Committee, and that the Chairperson may receive a copy of the document. A recent case has allowed the Committee to discuss sub judice matters, on which the Committee must decide whether it will accept legal opinion or not. Based on this, as a Committee Member, he does not want to go against the WCGRB’s request to meet in-camera. What do Members propose?
Mr Mackenzie emphasised that the advocate should receive all the information he needs to advise the Committee, including what stage the process is in, so that it can made an informed decision.
The Chairperson added that the Committee wants to make proposals. The Committee agrees that the legal advisor needs to be given more information.
Mr Simmers noted that the Chairperson has given the Committee two alternatives and he and Mr Mackenzie agree with his proposal.
Ms Beerwinkel remarked that Mr Mackenzie misconstrued her statement. The written submission might contain information the legal advisor requires. If the Committee can get that document, it might not be necessary to postpone and to reach a decision today. Regarding Mr Maasdorp’s statement about allowing the Chairperson to have a copy of the document but not the Committee, she asked what this implies. The Committee always needs to draw information out of the WCGRB, as it often provides the Committee with scant information. The WCGRB must bring a written submission and should not be given any more leeway.
Mr Uys agreed that the Committee should obtain information and engage with the information. There is nothing sub judice in a document that must be presented to the Committee. Party politics should not influence the matter on whether the Committee will perform its oversight function or not.
The Chairperson commented that he hopes a vote amongst the Committee will not be necessary. He asked the legal advisor what his view on the suggestion that the Committee be given a document that can be given to Mr Maasdorp, for him to interrogate and brief the Committee? Would it be problematic to call the WCGRB to submit a document, as Mr Uys and Ms Beerwinkel have suggested?
Mr Maasdorp responded that he needs to make an assessment as to the stage of maturity of the court case, as it will inform him whether the matter weighed will trump the Committee’s oversight role. He would most likely advise the Committee that it should perform its oversight duties and, because he is not certain of what information the WCGRB will present when they enter the meeting, he cannot say whether it will change his opinion or not. Since it is part of a negotiating engagement, and since the matter is of public interest; these will be considered in deciding whether it should be kept from the public or not. He cited a line from a court case: “only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur …”
Ms Beerwinkel cited from the letter from the WCGRB: “the information to be disclosed in this sitting of the Committee may prejudice the WCGRB’s defence and that of the provincial government”, however, there is no finality. The WCGRB has not provided papers to the court; therefore, the matter is not sub judice.
The Chairperson responded that it is clear that the WCGRB has been challenged by a stakeholder.
Ms Beerwinkel responded that it has not yet entered the legal process. The WCGRB should present the document to the Committee.
The Chairperson said that the Committee is faced with two proposals.
Ms Beerwinkel asked, if the WCGRB presents the document, can the legal advisor not attend the meeting and advise the Committee during the meeting?
The Chairperson replied that he is willing to engage on what stage the legal process is in, not on the merits of the case. He stepped out to call the Chairperson of the WCGRB.
The WCGRB entered the discussion
The Chairperson told the WCGRB that this meeting is open to the public. The Committee wants to clarify whether the WCGRB could submit the document to the Committee. The Committee would like to know where the legal process is currently at. The Committee cannot let go of its oversight role but does respect the WCGRB. Where is the matter in terms of legal processes?
Mr David Lakay, Chairperson, WCGRB, greeted members. He responded that the manager will confirm questions relating to the legal process. The WCGRB does not question the Committee’s role of oversight and is prepared to submit the document along with information to the Committee.
The Chairperson remarked that the Committee does not accept that the matter as sub judice and, therefore, has requested the advice of its legal advisor.
Ms Yvonne Skepu, Manager: Legal Services, WCGRB, referred to the letter and highlighted that the WCGRB has indicated that summons was issued, it has appointed attorneys and has about 14 days to file its plea. Therefore, it is an active matter.
Mr Lakay added that legal advisors advised that the WCGRB ask the Committee to treat the document with the necessary respect, to protect the information. The WCGRB has engaged with the other party regarding settlement and, therefore, that information could prejudice the matter going forward.
The Chairperson asked whether the WCGRB is still prepared to submit the document.
Mr Lakay agreed that the WCGRB was still prepared to do so.
The Chairperson added that the reason for calling the WCGRB in was to ask specific questions to determine how the Committee would proceed with its oversight, not to engage on the merits of the case.
Ms Beerwinkel asked the WCGRB what makes this matter sub judice, based on the information just provided to the Committee? How does the appointment of attorneys imply that a matter is sub judice?
Ms Skepu cited rule 61 of the Provincial Parliament that no member may refer to any matter on which a judicial decision is pending. Therefore, once a legal process has been served on a party, the matter is considered as active litigation and the court would need to determine the merits of the case and decide whether the WCGRB must refund the funds. The WCGRB has submitted its defence. Furthermore, as soon as the court process has commenced, unless parties remove the matter, the matter would be formally withdrawn, making it no longer sub judice.
Mr Mackenzie, referring to rule 61, noted that there is currently no judicial decision pending. The WCGRB needs to make a strong case for making the matter sub judice.
Mr Uys asked whether the WCGRB has studied any court case and outcome regarding the sub judice rule. Secondly, how did the WCGRB’s negotiations influence the sub judice? How can the WCGRB’s disclosure to the Committee influence sub judice and negotiations? The Committee would not ask the WCGRB to disclose its negotiating point.
Ms Beerwinkel asked how the Committee can influence the WCGRB’s defence by playing its oversight role. It will not disclose information to hamper the WCGRB’s defence. She added that rule 61 can only be used if it has been proven that a matter is sub judice.
The Chairperson reminded members that they have called the WCGRB in to clarify first and then it will enter discussion on the way forward.
Mr Mackenzie commented that the WCGRB cannot change historic information. What is the WCGRB going to disclose that is not new and already in the public domain, that has not yet been disclosed in the last two years?
Ms Skepu responded that the WCGRB appeared in front of the Committee and it knows that PMG records meetings. The other root operator sent a copy of the transcript of the discussion and, soon after, the summons was served. The WCGRB intended to explain to the Committee what occurs when it invoices tariffs and so forth. The WCGRB will also explain how it originated. In court proceedings and in litigation, a senior council will probably advise the WCGRB. There is a strategy as to how the case will be constructed. The WCGRB wants to disclose all relevant information to the Committee, but it is concerned about the publication of these discussions. The WCGRB is in discussion with both operators to find a solution and try to curtail and address the issue and is bound in terms of court rules.
Mr Uys asked whether case law was considered. Can negotiations influence the sub judice rule?
Mr Simmers commented that the reasoning why the WCGRB has constructed its letter in the way it has makes sense. They are in the process of litigation. He added that the Committee consists of honourable Members and the Committee’s performance of oversight should not interfere with processes of law.
Mr Mackenzie remarked that the information from the legal adviser should have been included in letter, as it would have made the meeting so much shorter.
Ms Skepu responded that sub judice is a classical phrase used in litigation and she is confident that once an active litigation process commences a matter becomes sub judice.
Mr Mackenzie added that Ms Skepu’s mentioning how the minutes of the Committee meetings are sometimes used during legal processes, helps him understand why a matter should be sub judice.
The Chairperson thanked the WCGRB for their attendance and asked whether Mr Lakay was willing to leave the document with the Committee or bring it when they conduct the briefing.
Mr Lakay replied that they would bring it along when doing the briefing.
The Committee dismissed the WCGRB.
Committee discussion continues
The Chairperson told the Committee that the WCGRB is worried that the information about reaching an agreement with the other party will be released to the public. He asked for consensus on the way forward.
The Committee agreed that they will be given another date and the meeting will not be in-camera.
Mr Simmers asked whether the Committee should not give the WCGRB another date to present. Is 30 minutes sufficient for them to provide a briefing? The Committee wants to do effective oversight and requires more time to do so.
Mr Uys commented that quarterly reports do not need to be engaged but that the WCGRB could brief the Committee.
The Chairperson reminded the Committee that, once the WCGRB submits documentation, it is property of the Committee and is public knowledge.
The Chairperson thanked the legal advisor for his attendance and allowed him to leave.
The Chairperson went out to call the WCGRB back in.
The WCGRB re-entered the discussion
The Chairperson said that the WCGRB requested documents back from the Committee and would like for the meeting to be in-camera. The Committee, however, understands that information is sensitive but the meeting will be open, and documentation submitted remains property of the Committee. If there is sensitive information, the WCGRB should tell the Committee how it would like to move forward.
Mr Lakay responded that the WCGRB has prepared for the meeting as though it would be a closed meeting. It would like to request that it does not submit the documentation and that it be allowed to re-prepare the document and address the Committee thereafter.
Mr Uys noted that the decision for them to brief the Committee was taken on 22 June, not being told since that it would be a closed meeting. Over the last 5 years, they have been given countless extensions. They should speak to the Committee and leave out sensitive issues, the Committee wants to know what happened in government and the WCGRB.
The Chairperson commented that the fact that papers were served changed the course. The Committee should respond to the WCGRB’s request to re-submit.
Ms Beerwinkel commented that the Committee does not need to respond in the manner the WCGRB wants it to. Agreeing with Mr Uys, she added that the Committee did not ask for a document pertaining sensitive information. She requests that a copy of the document be given the Committee’s legal adviser. She is concerned at the suggestion of the Chairperson receiving a copy of documentation and not the rest of the Committee.
The Chairperson responded that the WCGRB has requested a meeting in-camera and they will submit a document to the Chairperson, therefore, they want information to be kept confidential.
Ms Beerwinkel reiterated that sensitive information may be left out.
Mr Mackenzie asked that the WCGRB provide the Committee’s legal advisor with a copy of the process, not the confidential documentation.
Mr Simmers agreed with Mr Mackenzie and suggested that the WCGRB come back at a later date, because litigation is in process and the Committee wants to exercise oversight without imposing on the WCGRB.
Mr Uys remarked that the matter has been in the public domain for a long time. The WCGRB should tell the Committee how it will prevent what happened in future. This could have been resolved months ago. What is the WCGRB hiding? The Committee has made so many concessions and the WCGRB has been discredited.
The Chairperson decided that the Committee would vote on whether the WCGRB should proceed to submit documentation or be given an opportunity to rework the documentation and conduct a presentation later.
The Committee voted to allow the WCGRB to rework documentation and told the WCGRB that the Committee will review the request to submit the documentation and provide the opportunity to submit a document that does not contain sensitive information and give a date to present.
Ms Beerwinkel asked about the presentation of the document brought to the meeting.
The Chairperson recalled the WCGRB’s right to rework their document.
Mr Uys commented that he has seen clear politics of the DA and disguising the matter.
Ms Beerwinkel asked why the legal advisor cannot see the document they were going to present today.
The Chairperson said the case has been closed and he excused the WCGRB.
Mr Simmers concurred with the Chairperson.
Mr Mackenzie responded that a note be made about the WCGRB, that the legal advisor will advise the Committee on whether the matter is sub judice or not and that the Committee will give the WCGRB another date to present.
Adoption of the Draft Committee Meeting Minutes of 23 October 2018
The Chairperson referred to point 4 of the meeting, the Draft Committee Meeting Minutes of 23 October 2018. He asked whether all the dates were correct. He asked whether the Committee accepts the minutes and asked for any resolutions.
Mr Simmers proposed to accept the minutes.
The meeting was adjourned.
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