Scopa had sought legal advice on whether the discussion of the Department of Agriculture’s 2016/17 and 2017/18 annual reports is sub judice following the Department’s court action against findings of the auditor-general.
The Committee heard inputs from its members on how to move forward regarding parts of the annual reports which it refused to discuss with the Committee on the grounds they were still sub judice. In the end, Members agreed the Minister and the Department’s legal team should appear before the Committee to discuss the annual reports so that the Committee could do its oversight work. If questions could not be asked on certain parts of the documents, the legal advisors should explain why those parts were sub judice. It was also agreed that the Legislature’s Legal Advisor should also be present as he had given a different opinion to the Department on the sub judice rule.
The Chairperson reminded the Committee that a letter was received from the Speaker that the Western Cape Department of Agriculture had lodged a dispute at the Western Cape High Court against the findings of the Auditor-General in relation to its 2016/17 and 2017/18 annual reports. There was a meeting that took place where SCOPA discussed a way forward for conducting oversight over the Department of Agriculture. The Committee then met with Adv Le Roux to get an opinion on the matter and procedural advice for the Committee. On 16 November 2018, the Minister of Economic Opportunities wrote a letter to SCOPA which provided the position of the Department on the matter. On 21 November 2018, SCOPA met again with Adv Le Roux for legal advice. On 22 November 2018, the Chairperson of SCOPA received a letter from the Minister of Agriculture and the chairperson considered the response of the Department that the matter was sub judice. The Committee sat again to decide on the response it received from the Department that some pages of the report were sub judice. The Committee then resolved to meet on 28 November to discuss the issue further. The Committee then asked Adv Le Roux for advice and he indicated nothing was sub judice in the document and was not changing his opinion. Members then deliberated on how this matter could be taken forward in order to come to an agreement.
Ms C Beerwinkel (ANC) stated she stood by what Adv Le Roux indicated that there was nothing sub judice in some pages of the document.
Mr D Joseph (DA) said the Committee needed to know from the department what was sub judice. Irrespective of different party views, the Committee must exercise its oversight mandate over the department.
Mr S Tyatyam (ANC) indicated that the Committee was still part of the legislature. Its work was explained in the rules, and the constitution obligated Members to do certain things in terms of oversight. He found it strange that it could not do some of its work. One of the case laws that was presented indicated the legislation was not doing its work. The 2016/17 and 2017/18 reports should be discussed by the Committee and it must not be told by the Department what to ask and not to ask on those reports. The reports were open for discussion and the view or interpretation of the committee should be made known. The committee has got a role to perform its role as part of the legislature.
Ms M Maseko (DA) said her party was in support of the role of the Committee in terms of oversight and that it respected and supported the rule of law. There was no need to cross the boundaries. Seeing that the Committee had a legal opinion and its own view on the matter, it was important to know what was sub judice. There was no way the Committee could not talk about irregular expenditure, the AG’s opinion, etc. as reported in the annual report. She suggested the Minister should come explain to the Committee why it could not exercise its oversight role.
Mr D Mitchell (DA) agreed with Ms Maseko and indicated all committees were the extension of the House. According to the rules of the House, sub judice rule was applicable. The role of the committee was to interrogate the outcome of the courts. The Department should explain the pretext of the case before the committee.
The Chairperson pointed out that some of these things in the reports were intertwined and could not be separated, and that was why Ms Maseko suggested the Minister should come to the Committee and explain how to deal with the matter.
Mr Tyatyam indicated some items in the report, especially section A, were discussed with the Minister. So there would be no need to repeat those areas. He further stated the Committee had received a legal opinion many times on this matter and there were case laws that were presented to it. Unless it is said the Committee undermined these legal case laws or legal opinion the legislature then should fire the advocate and find an outside legal opinion. The Minister was going to bring nothing to the discussion because he was not a legal fundi, especially when the Committee has already received a legal opinion. The Committee was not ignoring the rules. Adv Le Roux had stated that even if the Department came to the Committee, it still had to explain why certain questions could not be explained. The Committee had not been given reasons why it could not ask questions on certain parts of the document. Adv Le Roux quoted case laws to support his opinion.
Ms Beerwinkel explained they were in this situation because of what happened on the day of the meeting on this matter. Rule 61 was not applying, that’s what they were told because it was proven that the decision taken was not necessary. This was not the first opinion given to Parliament by Adv le Roux. There was no need to doubt him. He had explained to Members what sub judice meant. The Department could not be a jury and decide what the committee could do or not do. Even the Committee’s legal advisor did not go against Adv Le Roux. The papers that have been filed were in the public domain and the media could comment and publish on the matter without fear or violating the sub judice rule, but it was strange the Committee could not comment on the matter on behalf of the public that it represented on the same matter that fell within its scope of work. She pointed out that sub judice also applied where there was a pending outcome, but when they started the process there was nothing sub judice even now. She further indicated the opinion received from Adv Le Roux on sub judice stated, “there is no clear demonstrable risk that the legislature will prejudge the issue, there is no demonstrable risk the legislature will conduct a trial on this matter, and there is no demonstrable risk the legislature will bring an improper pressure to bear a witness or judicial officer.” This was not a trial of a criminal case and the Committee was not undermining the impartiality of the judges. The committee members were given the rule of law they had to abide by and it explained to them how they do their work and there was no reason to doubt it. There was no reason not to discuss certain parts of the report when part A of it has been discussed already and the very same report was in the public domain. Nothing in the documents was sub judice.
Mr Mitchell said in his understanding of law the sub judice rule applied where there was a criminal or administrative case and there was a pending litigation. This was his view.
Mr Joseph remarked that to say the Minister was not a legal fundi should be said in the right context. He did not think it was right to make such a statement. Respect must be there for everyone. The current Minister took over from the previous one when the matter was already with the courts. He also indicated the Committee had independence in respect of oversight, but the Speaker had powers over the committee. The legal opinion should also go to the Speaker who, in turn, had to submit it to the committee just like the 30 October 2018 letter that was received by the acting chairperson on the day of the meeting from the Speaker. He proposed the Committee should continue with oversight, and the Minister must come with his legal team and discuss oversight matters with the Committee. The Speaker should also be informed of this matter.
The Chairperson stated the Committee has always been impartial and it has never happened before that it worked through the Speaker because it would be dictated to by the Speaker. It has tried to do what was right for a long time.
Mr Joseph stated if the Department was disagreeing with the Committee it could take it on the review just like it has done with the AG.
Mr Tyatyam remarked that the Committee would not reach an agreement on the matter, and the DA must use its vote to outdo the committee. If the Committee was disrespecting the office of the Speaker, it was not going to entertain the letter from the Speaker. Instead it has done things by the book because it knew the processes. Even if the committee could reach a consensus on this matter, the Speaker, by virtue of his/her powers, could overturn the decision of the committee. But in this case, there was nothing that said the committee could not ask questions on certain pages of the document. If the committee was divided on the opinion of Adv Le Roux, then, he suggested, it must vote on the matter.
Ms Beerwinkel said there was nothing wrong by stating the Minister was not a legal fundi. This was no sign of disrespect to her. She further said the sub judice rule had many interpretations and clauses and it stated, “there needs to be a demonstrable and substantial risk of influencing a decision…a legislature should only be kept from exercising its constitutionally imposed obligations to have oversight on the basis of the sub judice rule in the presence of a demonstrable and substantial real risk that prejudice will occur to the administration objectives.” She said there was no way this could be violated.
Ms Maseko pointed out that two legal advisors had different opinions – Adv Le Roux and the Department’s legal advisor. So, it was better to summon the Department to come with its own legal advisors so that the committee could do its oversight work.
Mr Mitchell said nobody had dismissed Adv Le Roux’s opinion. He suggested Rule 61 should be expanded in the next Parliament. He added that the Committee should consider Ms Maseko’s proposal.
Mr Tyatyam suggested when the Department comes to the Committee; it should bring its legal mind and allow the Committee to exercise its legislative role. The Committee must also ensure Adv Le Roux was invited to the engagement.
Ms Maseko re-iterated her suggestion that the Minister should come with the Department and its legal team to discuss the annual reports so that the Committee could do its oversight. If the Department was refusing the committee to ask questions on certain parts of the annual reports, then the legal advisors from Department should explain why those parts were sub judice.
Mr Joseph wanted to understand what the role of the AG would be in the meeting because its opinion was on review.
Mr Tyatyam said the Committee would still get a briefing from the AG and audit committee as usual when the Department engages with the Committee. The Committee had agreed not to deal with questions on parts of the report that were still sub judice, and insisted Adv Le Roux must be present during the discussion.
Ms Maseko said Mr Tyatyam was ruffling feathers that would not be ruffled. All committee members want to do oversight, hence it was proposed the Department and its legal team should appear before the committee so that members could do their oversight work.
Mr Tyatyam said party allegiance has not been raised by the ANC in the committee. People must not have amnesia when dealing with issues. In principle, members were saying they were not going to deviate from doing their work and there would be no new rules that would be set for the Department. The Committee would approach the Department the way it has dealt with other departments.
The Chairperson said the Committee would take into consideration the parts or areas it could not ask questions on when the Department engages with it and the Department’s legal advisors would explain why questions on those certain areas would not be asked.
Adoption of Minutes
21 November 2018 minutes
The Chairperson took the committee through the document, page by page.
Ms Maseko moved for the adoption of the minutes.
Mr Mitchell seconded the move.
The minutes were adopted with no amendments.
28 November 2018 minutes
The Chairperson took the committee through the document, page by page.
Ms Maseko proposed the adoption of the minutes.
Mr Joseph seconded the proposition.
The minutes were adopted with minor technical amendments.
The meeting was adjourned.
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