Documents: Letter from the former Chairperson for the Commission on Gender Equality, Ms Lulama Nare; List of candidates who had submitted their fingerprints [awaited]
The Committee met with the intention to shortlist suitable candidates for the Commission on Gender Equality (CGE) but were unable to fulfil the task as the Committee had not received the screening report on the fingerprints of the applicants from the State Security Agency and delays due to the Human Resource Unit of the Department of Women Affairs being understaffed. It was worrisome as it meant that they might not meet their intended deadline, even risking allowing the process to await the Sixth Parliament, which was something the Members did not want. The fingerprint report had not been submitted because not all applicants had sent in their fingerprints. The legal advisor to the Committee stated that the State Security Agency would not send through incomplete reports; which was why the report had not been submitted. The Committee took the resolution to go straight the Speaker’s Office and express their concerns about the delays being caused by the State Security Agency as the task had to be completed before Parliament went into recess.
The Committee was also now faced with potential legal action from the former Chairperson of the Commission for Gender Equality, which further hampered the process. This legal action was based on a contestation of her term of office, if the term had been fully completed and if she was eligible for reappointment. The Committee went into extensive detail, noting the potential fraud by the former Chairperson, who had used the letterhead of the Commission for Gender Equality when she was no longer in office. The Committee decided to let the legal team handle the matter. The shortlisting process did not take place.
The Committee Secretary opened the meeting and asked the Committee to elect a Chairperson, as the Ms Ncube Ndaba was running late due to flight delays.
Dr P Maesela (ANC) nominated Ms M Morutoa (ANC), with Ms D Robinson (DA), seconding the nomination.
The Committee agreed that Ms Morutoa should chair the meeting.
The Committee Secretary said that in a previous meeting, the Committee had adopted the programme. However, the programme had been changed to allow time to complete the process. Initially, when the programme was adopted, the Committee had requested a deadline of 27 February, which had been approved by the House, but due to challenges, the programme had to change. The first meeting had been held on 21 October 2018 and the second on 31 October 2018. Those meetings were followed by administrative work by the Committee staff, which included uploading the CVs. The closing dates for civil public comments, the closing date for which was on 18 January 2019. The first meetings of the Committee in the new year were on 22 and 23 January 2019 which were to update the Committee on the progress at that point, and to determine the criteria for shortlisting. The next meeting scheduled was the current one, which was intended for the shortlisting of candidates. The week of 21 February to 1 March, would be an administrative week to organise flights and accommodation for shortlisted candidates who would be participating the interviews. Interviews would take place on 5 and 6 March 2019. Deliberations would take place on 12 March 2019 and adoption of the report would be on 13 March 2019. The debate in the House would take place on 14 March 2019.
The Secretary explained that the Chairperson, Ms Ncube-Ndaba, had requested an extension to 14 March, but the request was still in the Office of the Speaker. When the programme was drafted, the Parliamentary Programme which will end on 20 March 2019 had been taken into consideration as the process had to be completed before that date.
Ms T Stander (DA) stated that apparently the delays in the Committee were due to the Human Resource Unit of the Department of Women Affairs being understaffed and asked if that had been resolved. She asked if officials from the Human Resources Unit had been appointed to deal with the screening that they were supposed to do. She said the State Security Agency (SSA) had failed to present its report to the Committee for three weeks, which was why the Chairperson had had to cancel at least two Committee meetings. She asked if there had been a commitment from the SSA to provide the Committee with its report, and when that would be. She asked if the budgets, as set out in the programme, had been approved and whether the Committee had adhered to the budget to date. The status column on the programme indicated “pending approval” against everything. Ms Stander asked for clarification of that. Was the 88 was the total number of CVs received or were there more, but they had not contained all of the financial documents? Had all the applicants have submitted their fingerprints or were there still some outstanding? If so, what was being done to ensure that the candidates met those requirements so that the Committee could proceed?
The Acting Chairperson suggested that Ms Stander should direct her question about the fingerprints to the State Security Agency.
Ms Stander stated that the question had to do with the applications and how that would affect the Committee’s programme because State Security had to vet the applicants, but the applicants themselves were responsible for going to Home Affairs or to a police station, and sending their fingerprints to the Secretary. She asked the Secretary about the request to move the deadline. Had she heard correctly that the request was still in the Speaker’s office? Why was that so and when would the deadline be approved?
The Secretary explained that the extension request had been submitted the previous week, so she had not received a response from the Speaker’s Office. Normally, the Speaker’s Office responded through the Announcements, Tablings and Committee Reports (ATC) as had been done the last time when the extension to 27 February had been requested.
A document was given to the members with a list of the candidates who have submitted their fingerprints, and those who had not.
The Secretary stated that seventy-eight candidates had submitted their fingerprints. A report was submitted to Members by the Departmental Human Resources Unit, but that report was not yet complete.
The Secretary explained that the programme had been approved by the House Chairperson and so the “pending approval” status would be changed. The Committee had adhered to the budget. The budget was a proposed one, not the final budget. No response had been received from the State Security Agency with regards to the pre-screening of candidates and a follow-up would be done after the meeting.
The Committee Content Advisor said that the Committee had initially received ninety applications but one of the applications was submitted by someone nominating another person, so she was never an applicant. The second one withdrew because she had received a better job offer. That meant that there were eighty-eight applicants.
Ms Robinson was concerned with the fact the SSA had not responded. That was unacceptable and apart from the Secretary investigating this matter, the Members had to do more. She said that they could not have such an important appointment being postponed because of inefficiency. The SSA had had more than enough time since December the previous year.
Ms W Newhoudt-Druchen (ANC) asked what would happen if only seventy-eight fingerprints were done by the time the shortlisting took place. Should all fingerprint documentation be received before the Committee started the shortlisting process? What would happen if the Committee started the shortlisting process and more fingerprints were received while the process was taking place? What were the legal implications of such a possibility?
Ms Stander declared that was unacceptable that the SSA had failed the Committee to date. She said that the Chief Whip of the DA had raised the issue in the Programming Committee the previous Wednesday. In that meeting, a commitment was made that the Minister of State Security would be approached to inform him of the issue and to speed up the process. She suggested that all the political parties should write to the Speaker, as well as the Chairperson of the Committee, expressing the difficulty that the Committee was facing. Members currently had less than four weeks to screen, shortlist and interview the candidates.
The Acting Chairperson said that Ms Stander had raised many questions that the officials had attempted to respond to and would like other Members to raise their concerns. She said that she did not see the need to have each and every party write to the Speaker because the Ad Hoc Committee had been formed to represent all the parties. Any attempt to reach the Speaker had to be made by the Committee as a collective.
Dr Maesela stated that the Committee did not need third parties to do the work of the Committee. Whoever was responsible for the vetting process had to explain the delays to the Committee. Members could not proceed with the shortlisting process without the candidates being vetted, otherwise they would be wasting their time and resources.
Ms M Khawula (EFF) asked why the meeting was taking place if the fingerprints had not been received. She asked if it was not wasteful expenditure.
Ms L van der Merwe (IFP) said that there were four weeks left in that term of Parliament and the Committee had a very important job in front of them. The fact of the matter was that all was not well at the Commission for Gender Equality where there were internal struggles. That would be dealt with by a change of leadership and that was what Members were supposed to be doing. The Committee could not shortlist any candidates at that stage without the vetting procedures having been finalised. Parliament would have to give the Committee an extension and the Speaker needed to be made aware of the fact that the Committee was struggling to move forward. It was being hampered from completing a task that Parliament was expecting it to do due to the fact that the Committee was not getting the assistance that it required.
Ms B Maluleke (ANC) agreed with Ms van der Merwe and said that the Speaker needed to be made aware of the challenges the Committee was facing. She also agreed with Mr Maesela and stated that the Committee should get a commitment from the State Security Agency. The Committee had been postponing meetings because the vetting report was not available. The Chairperson should meet with the Speaker that day and go straight to the State Security Agency to get the report. SSA had to make the Committee aware of any issues that it might be facing. She says that if the matter was not sorted out, then the process might carry over into the sixth Parliament, and that was not what the Members wanted.
The Acting Chairperson stated that she had two recommendations. Firstly, the Committee needed to notify the Speaker. Secondly, the Committee needed to get someone from SSA to explain the delay. She said the recommendations were valid because if the Committee did not meet the deadline, then it had failed.
The Secretary agreed that the Committee support staff would implement the recommendations.
The Acting Chairperson asked who would go to the Speaker. She suggested that the permanent Chairperson, Ms Ncube-Ndaba, should be the one to go, accompanied by some Members of the Committee.
Ms Robinson agreed that if the Chairperson, Ms Ncube-Ndaba, managed to get to the meeting that day, then she should go, otherwise Ms Morutoa should go. She would happily accompany whoever would be going.
Mr Herman Tembe, the Legal Advisor from the Office for Institutions Supporting Democracy (OISP), explained that the SSA did not like to submit incomplete reports. He stated that another Committee he was working with was facing the same predicament with the SSA. The SSA would not submit a report until it was complete. The SSA had proposed that at least the pre-screening should be done for the shortlisted candidates. Not all of the eighty-eight candidates, would be shortlisted so the Committee should submit a list of the shortlisted candidates only. If the Committee waited for all candidates, then it would not complete the process in time.
The Acting Chairperson requested that all the recommendations so far should be itemised.
Dr Maesela explained that Members wanted the SSA to appear before the Committee so that the SSA could tell the Committee if it could not complete certain tasks so that the Committee could take it from there.
Ms Stander was concerned about the delay. She stated that the Speaker’s programme and daily commitments were full so the chances were not good that they would actually get an appointment with her that day which was why she had suggested that an urgent letter be submitted by the Chairperson, on behalf of the Committee, as soon as possible. The Committee also need to badger the staff in the Speaker’s office so that the Speaker could urgently address the issue, noting the extension and the trouble that the Committee was facing. The SSA would come to the Committee and say that it had not completed its report because ten sets of fingerprints had not been submitted, and that was not going to change. That was why she was suggesting that the Committee write a letter to the SSA so that it could get a response, in writing, as soon as possible. The Committee had the shortlisting and screening framework and Members should go through the summary of the applications, as well as the screening framework, so that they could familiarise themselves with the information and not waste the meeting time that they had been given that day. They might also identify some applicants who might not meet the criteria.
The Acting Chairperson said the Committee should not regress. She thought that Members had already agreed on some of things such as a face to face meeting with the Speaker and not writing letters. Letters did not work in that Parliament and that was why she had suggested the approach of speaking directly to the Speaker.
Ms Robinson agreed with the Chairperson that it was not the time to be taking the slow route. The Committee needed to be knocking on doors. She agreed with Mr Tembe in that they should start looking at the candidates so that the SSA had fewer people to look at. For the SSA to wait until every person had sent in the fingerprints before the Committee could do its work was ridiculous. That was red tape gone wrong.
Ms Maluleke thought the Chairperson should close the meeting immediately and the Chairperson and Ms Robinson should go straight to the Speaker’s Office and outline the challenges and the recommendations. On Thursday, the Committee could come back and get the report. She agreed with Mr Tembe that they should start shortlisting. That would give the SSA fewer people to screen.
Ms Van der Merwe stated that the Committee needed direction from the Speaker’s office because it could not seem to progress at that stage.
Dr Maesela said that the Committee had to follow due process. If it did not follow due process, then even if Members were correct with their decision, the law was going to go against them.
Mr Tembe stated that he had received two items of correspondence; one from the former Chairperson of the CGE, Ms Lulama Nare, and one from her lawyers. Mr Tembe read the entire letter which was addressed to the Speaker, but he bought to the attention of the Committee so that they could respond to the allegations.
Ms Ncube-Ndaba, the Chairperson of the Committee arrived, and the Acting Chairperson filled her in on what had happened. There had been were a lot of recommendations from Committee Members. The Members were concerned about the procedure, which was holding up the whole process. One of the recommendations was that the Chairperson should go to the Speaker’s Office, with one other Member, to raise the Committee’s concerns. It was problematic for Members to continue shortlisting when not all candidates had gone through the same process. Members wanted someone from the SSA to explain to the Committee why the process was taking so long and why the reports had not been completed.
Mr Tembe said that the letter from the lawyers arrived after 3pm the day before and thus had not been bought to the attention of Committee but he would read it, nonetheless. He read the letter.
Ms Van der Merwe was concerned with the manner in which Ms Nare was approaching this situation and saw it as her threatening the Committee. Firstly, she was implying that the Committee could not execute their duties as expected. She said that Ms Nare’s CV would be considered, as it was part of the applicant cohort. At the end of the day, it was the Committee’s duty to say if they felt she had not done a good job as the Chairperson of the CGE and thus take that into consideration when making a decision. She was sure that Ms Nare did not have the mandate to speak on behalf of the CGE. Under her leadership, there had been a lot of inhouse fighting and she had also threatened people and that it was that Committee’s prerogative to review past work when making a decision. The Committee would need legal assistance in drafting a reply because it had become a legal issue. She added that Ms Nare’s application had not been excluded and her attempt to interdict a process that had not even started as yet, should be the basis of how the Committee approached the situation.
Dr Maesela said that the Committee needed some order and stated that Members were getting carried away with explaining things that could not be explained. The Committee had not excluded anyone, and it had not shortlisted anyone. He said that the Committee needed to be procedural.
Ms Stander said that Ms Nare said that the comments made in the Committee in the previous meetings had been minuted by the Parliamentary Monitoring Group (PMG). The accusation about her irregular appointment was not for the Committee to consider and should be referred to the Office of the President. On the issue of exclusion, it should be minuted in the minutes of that Committee that she had not been excluded and that her application would be considered. Any re-applications would have their past performance considered, as per the entitlement of this Committee. She also stated that a term was a term, regardless of the person, so when Ms Nare came into two years of a five-year term, it was because someone had been there three years before. The position was not based on the people but based on the term of office. Ms Nare was completing two years of a five-year term. She says that the Committee did, however, need a legal opinion.
Ms Ncube-Ndaba says that Mr Tembe should have explained to the Committee that the PMG records and Parliament’s records were different. He should have updated the Committee on what transpired in the meeting so that they could be informed and be up to date. It was as if they were being blackmailed about Ms Nare’s situation. She asked Mr Tembe to update the Committee on what work has been done and what processes had been followed.
Mr Tembe says that Ms Nare’s contention is based on section 3(4) of the CGE Act. The Act states that members of the Commission may be appointed as full-time or part-time members and shall hold office for such fixed term not exceeding five years, as the President may determine at the time of each appointment, provided that the term of full-time members shall not expire simultaneously.
He explained that Ms Nare’s first appointment was for two years, and then she had resigned. She was then reappointed. The first term was considered a full term. Her second term was five years. The contestation came with the first appointment, where Ms Nare believed that she had not served a full term and was thus eligible for reappointment. He says that Ms Nare had left office in December the previous year and so it was fraudulent for her to be masquerading as the Chairperson of the CGE and to sign off as the Chairperson in her letters and to use the official letterhead of the CGE. His Office had tried to get the PMG records on which Ms Nare relied in her letter to the Speaker and said that most of what had been reported by PMG was not factually accurate. The Deputy Speaker was currently viewing footage of what had transpired in the meeting that Ms Nare refers to. He said that Ms Nare had previously written in to the Public Protector complaining about the error in the terms. She had also written to the President. The President had responded to issues raised by the Public Protector as well as issues raised by Parliament.
The Chairperson says that enough has been done. She said the inputs were in line with what had already been discussed. She says she did not think Ms Nare read the Act, that she had quoted, very well.
Ms Stander said that because the letters were addressed to the Speaker, the Committee should defer them to the Speaker. The two previous Commissioners had been appointed for a term not exceeding five years, and that was the legal opinion given.
The Chairperson was flabbergasted by the fact that Ms Nare is making this a personal issue.
Ms Van der Merwe said that Ms Nare had no grounds for using the CGE letterhead and to sign off as the Chairperson and to speak on behalf of the CGE as she was no longer the Chairperson. What she was doing could be considered fraud.
Ms Ncube-Ndaba said that one issue Members were not addressing properly were the fraudulent activities that Ms Nare was engaging in. Firstly, she could not write letters using the letterheads of CGE when she was out of office and she could not write on behalf of the Commission when she was not there anymore. Legal advisors to the Committee must state what should be done about that issue.
Dr Maesela said that the Committee should not worry about what Ms Nare was going to do, or not going to do, and the Members should continue with their duties regardless. He asked the Committee Members to just follow procedure and do what they were supposed to do.
Ms Stander reminded Committee that on 22 January 2019, two applicants had been removed from the list as the Committee had said they did not qualify as they had served two terms. The Committee could not now say that those applicants would be considered, unless the Committee rescinded that decision. She said that it was not for this Committee to deliberate what sanctions to take against Ms Nare. Because she was appointed by the Presidency, she must be dealt with by the Presidency.
Ms Ncube-Ndaba said that the Committee needed to ask the legal team to respond to Ms Nare’s letters. She said that if the correspondence was checked, there was nowhere where names were mentioned. The Committee just agreed that they were looking for someone who was a gender activist and had not served for two terms as a Commissioner, so they could not rescind what they had agreed upon as a Committee.
Ms Khawula said that they should not be dwelling too much on Ms Nare’s situation. She had undermined the Committee by taking the matter to her lawyers. The Committee had agreed to take the work of past Commissioners into consideration when considering their possible reappointment. She also raised the issue of Ms Nare using the CGE letterhead and signing off as the Chairperson of the CGE, when she was, in fact, not in that position anymore.
Ms Van der Merwe says that they had exhausted the matter and it was something that should be dealt with by the legal team.
Ms Ncube-Ndaba agreed with the Members and supported all recommendations.
The Chairperson said that the Committee could not do justice to item number five: the shortlisting of candidates. The Committee Members needed to make a decision on the candidates that had submitted their fingerprints because they had been lenient enough. The Committee could not go on with the shortlisting of candidates.
The Chairperson suggested that the Secretary of the Committee should contact those applicants who had not submitted their fingerprints and get them to do so as soon as possible. She also suggested that the Committee should find out from the Speaker how to move on with the process without all the fingerprints.
The Chairperson said that the Committee has done a thorough job.
The meeting was adjourned.
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