Consideration of extension of contract of IPID Executive Director: Adoption of Report

Meeting report

Watch: Committee Meeting

Opening Remarks

The Chairperson explained the Committee meeting scheduled for Tuesday, 6 March 2019, will be cancelled to give the staff the opportunity to finalise the relevant reports. On Wednesday, 7 March 2019, the Committee will be briefed by the Directorate for Priority Crime Investigation (DPCI) on high-profile cases including state capture, Steinhoff and all related matters. Corruption Watch and the Tobacco Institute of SA (TISA) would also brief the Committee on Wednesday on its views on the state of corruption in SA and SA Police Service’s (SAPS’) efforts in this regard and the topical matter of illegal tobacco smuggling and if the Hawks is dealing with this.

Apologies were received from Dr P Groenewald (FF+), who was busy with party matters, Mr M Buthelezi (IFP) who serves on the Independent Electoral Commission (IEC) structure nationally for his party and is busy with this work and Ms D Kohler Barnard (DA) and Mr Z Mbhele (DA) are attending their party’s weekly caucus meeting.

The Draft Report on the Committee’s task of looking into the renewal or non-renewal of the contract of the current Executive Director of the Independent Police Investigative Directorate (IPID), Mr Robert McBride, will cover all the areas Member’s discussed yesterday including introduction, background, observations, discussion and deliberations. The Report would also cover the consensus points on the findings. Members would also discuss the suggested recommendations tabled in the Committee yesterday by Mr Mbhele for future areas of work.

The Committee would go through the Report page by page and rectify any errors, as is usually the process, before debating on the concluding views of the Committee on the process which has unfolded. This would possibly be followed by discussion on the recommendations before the Report is adopted.

The Chairperson raised a matter which he said was of huge concern – Parliament is there to represent the people and make decisions on behalf of the people. Input from everybody is welcomed whether it is oral or written submissions. Not everybody has to agree with the Committee. In 2015, the Committee took five months to deal with the section 201 inquiry investigation into the top management of SAPS. This was not a very popular process and the Committee came under huge pressure on various fronts. In the end, the Committee continued with the process which it saw as very important in terms of oversight and ensuring SAPS adhered to the Constitution and did not become involved in other matters. This was a principled approach the Committee took. In terms of the current process, it is of high public importance and Members have been lobbied by colleagues, interested parties and others. This morning, the Chairperson said he received a call from a senior member of his party – this display of agreement or disagreement is part of politics and it is accepted. There is however clearly a line. The Chairperson displayed his shock and dismay at some of the documents and WhatsApps that Members of the Committee have received over the past 72 hours. It is totally unacceptable. Members cannot be put under this pressure by lobby groups or individuals – it simply cannot be done. If people have different views, they are welcome to submit suggestions to the Committee. We are not a banana republic and cannot have a situation where decisions are made and Members are threatened – this is totally unacceptable and is very serious. 

Mr L Ramatlakane (ANC) said it is an extraordinary matter. It is unheard of where Members of Parliament and Portfolio Committees are targeted in this way.

Mr J Maake (ANC) read out the email received so that everyone present was on board. It read: “Dear Honourable Beukman. The fact that your Committee has engaged with criminals like Cele and Nkabinde is of great concern and has left us feeling there is more to this than meets the eye. As a result, Forensics for Justice have decided to carry out detailed investigations of each and every Member of your Committee. You are requested to supply all their names and ID numbers as well as their relevant Register of Members’ Interest disclosures. We will publish our findings on our website without fear or favour as we are not prepared to stand by and watch Parliament start the ball rolling on state capture too. Your Members should know they are not above the law and it is time they are brought under the control of the people who pay their salaries – I am one of those. Best wishes, Paul O’Sullivan”.

Mr Ramatlakane said this letter threatens Members of Parliament, intimidates and seeks to dictate what Members of Parliament should do or should not do, should say or should not say. In other words, Members should be under the guide and control of Paul O’Sullivan on what they do and the day-to-day work in Committee. The matter the Committee is dealing with has been referred to the Committee in terms of the Act, Rules of Parliament and the judgement of the North Gauteng High Court. This email seriously undermines the Constitution – this one individual seeks to divert Members who are elected to serve. This is a serious overstepping by Mr O’Sullivan and it cannot simply be left there. Mr O’Sullivan refers to “we” which means there is a group of people who sit and look at how Members of Parliament are dealing with the matters and the group decides how matters should go. It is not clear whether this group is legal, illegal or a gang. The Committee cannot conclude on who the “we” is. The matter must be reported to the Speaker for intervention – this is an attack not only on the Committee but on the institution of Parliament. This is not the first such letter the Committee has received – there have been others which have not be read coming from this one person. This person does not carry one passport but carries a couple. This person is not elected and cannot tell Members what to do or what not to do. Mr Ramatlakane expressed that he was really angry about this incident.  This is grounds for opening a case. Law enforcement agencies should be able to look at the threat and what it means so a case must be opened with the police. If this is a company which acts in terms of law enforcement, it should be registered with the Private Security Industry Regulatory Authority (PSIRA) and therefore must comply with registration conditions. A complaint on the matter should also be lodged with PSIRA for further investigation. This behaviour is condemned by Members of the Committee in the strongest terms possible. This individual has simply done what has never been done. The Committee might not be the only one under the microscope. The matter must be reported to the Speaker, police and PSIRA for action.

Mr M Shaik Emam (NFP) was not surprised by this intimidation and harassment. The Member has said before that people are focused on one dynamic of state capture while there was state capture pre-1994 continuing up to today. This clearly shows there is a third force which has not stopped since 1994. The Member was not intimated by Mr O’Sullivan – he was present to do his job without any fear or favour. Decisions of the Committee are based on the facts and merits of the matter before it. All submissions from all sides were considered, there were deliberations and each Member had the right to agree to disagree. However this form of intimidation is unacceptable. The state is not a banana republic where Committees can be intimidated for the decisions they make. The matter needs immediate attention and criminal investigation. It should also be reported to the Speaker. If such intimidation is allowed, the Committee would be setting a precedent that every time there was disagreement, Members can be threatened. Does this mean the lives of Members are in danger? Members are elected by the people and represent the people – this must be done to the best ability of Members as they are attempting to do. The task is not easy – was it being said that if the decision was taken to renew the contract of Mr McBride that there would be no problem? Should all the facts before the Committee be forgotten? The matter must be reported to SAPS for criminal investigation. The matter must be referred to the Speaker of Parliament and dealt with urgently. The matter of security should also be looked at. This is a learning exercise for government to see that there is a third force out there seeking to destabilise and destroy the liberation of SA but since 1994, this has been ignored.  It should be viewed very seriously.

Mr Maake supported the views of Members.

The Chairperson said Legal Services will also look at the matter and advise the Committee.

Draft Report by the Portfolio Committee on Police on the referred by the Speaker of the National Assembly on the recommendation by the Minister of Police, Hon. B Cele, MP dated 05 February 2019, not to renew the employment contract of the Executive Director of the Independent Police Investigative Directorate

Page by page consideration

The Chairperson highlighted that the specific dates of the letters referred to must be included in the Report on page one.

Mr Ramatlakane said it is important that the Report clearly distinguish between the written information the Committee relied on and those it did not i.e. other, general documentation. There must be a list of all documents submitted to the Committee for readers to see.

Mr Shaik Emam suggested that it must be made clear that the contract was coming to an end on 28 February 2019 and the contract itself is clear that it does not compel or prescribe an extension.

The Chairperson said this would be under the findings.

Mr Shaik Eman acknowledged this but said it was also important to include it in the beginning to provide context and sequence to the letters penned.

Mr Ramatlakane agreed this should be part of the findings but it could also be better explained if it formed part of the introduction to give context to what the matter was about.

Mr Ramatlakane thought the date of when the appointment letter was signed should be inserted.

Mr Ramatlakane suggested the insertion of directives of the Minister of the Department of Public Service and Administration (DPSA) in terms of the non-signed performance assessment.

The Chairperson suggested reference be made to specific financial years when they are mentioned.

Mr Ramatlakane noted that under briefings to the Committee, Members agreed yesterday that briefings were received but noted that there were no convictions on the high-profile cases.

Mr Shaik Emam asked if, under the trust relationship between the Executive Authority and Accounting Officer, reference be made to the relationship between the Executive Director and some of the staff and members of his team and the conditions they work under as was highlighted in the PSC matter.

The Chairperson said the matter is before the Public Protector and the Committee did not want to make comprehensive findings or form views on a process where there was not a final outcome yet.

Mr Shaik Emam said the PSC investigated the matter and found it absolutely irregular and advised the Minister to deal with the matter and stop the harassment. Does one expect this to be a conducive working environment?

The Chairperson said the PSC findings are dealt with in the Report. Conclusive findings cannot be made on the Public Protector matter because it is still under way.

Mr Ramatlakane suggested the reference to the Harassment Act in the PSC report be included into the Committee’s Report to take care of the point raised by Mr Shaik Emam. 

It was agreed that under independence of IPID, the Committee Report refer to the clauses in the IPID Act that speaks to reporting responsibilities of the Executive Director to the Minister.

Members briefly discussed the Committee observations under political context.

Turning to the findings, Mr Shaik Emam thought the finding on the common cause of the contract of employment should include that the contract is not clear on prescriptive provisions on renewability. This might explain why the Minister did not write to the Executive Director on the renewal. 

The Chairperson explained that there is a clause in the IPID Act which does speak to renewal.

Mr Shaik Emam said the Report should clearly state the Act allows for renewal but it is not an automatic process. The contract did not speak to this and did not make provision for renewal. It is important that the contract be considered as it is. If the Committee decides on non-renewal it would not be in breach of neither the Act nor the contract. Contracts are clear in that one enters into employment on one date and ends on another date. Contracts and leases are clear on start and end dates. It is important that the prescriptive-ness of the contract be highlighted in the Report in that there was no provision for renewal. This is why the Minister did not respond to the initial letter – he only replied when the request was forced down his throat.

Mr Ramatlakane agreed the contract made no provision for renewal and the Minister could have said he would not renew based on the contract. There is however the provision made available in the Act. The point is that the contract was fixed for a five-year term and did not speak to renewability. This is in contrast with the Act but the Act also does not speak to the mechanism to activate the renewal and whether it is informed by one party or both. It is then left with the Committee to interpret the matter.

Mr Shaik Emam said the contracts are also prepared by legal experts who would have had to comply with the IPID Act. The question is why the contract does not specify that there is opportunity for renewal. The Act is there but the Committee is now dealing with the contract in this section.

The Chairperson suggested the addition of a sentence which speaks to the contract not making provision or prescription for renewal.  

Mr Shaik Emam wondered whether the Report should make reference to the response of the Minister coming only after the Executive Director pressurised him for a response on the renewal of the contract. The Member was of the view that Mr McBride created the impression that the Minister had no right to write the letter and express the decision not to renew the contact but failed to inform the Committee that he was the one to wrote to the Minister in the first place questioning the renewal of the contract.

The Chairperson said this is included when the Report speaks to the Minister’s reasons.

Mr Ramatlakane said the point raised by Mr Shaik Emam is an observation and not a finding. The finding however could speak to the sequence of letters and responses.

Mr Shaik Emam found that while the Minister may not have the ultimate say in the decision of renewing of the contract, the Minister has an interest in everything to do with IPID without interfering in investigations etc.  Therefore, the Minister can advise the Executive Director and Committee on the renewal of the contact. The Minister is an interested party and has everything to do with the work of the Executive Director – one could not run away from these facts.

The Chairperson pointed out the Report does speak to obligations of the Executive Director in reporting to the Minister and that IPID is not a Chapter Nine institution.

Mr Shaik Emam acknowledged this but thought the Report should speak to Mr McBride basically telling the Committee that the Minister has nothing to do with anything of IPID. By virtue of his letters, Mr McBride accepts this is not necessarily the case especially given that he must report to the Minister as the Act outlines. To look at the matter differently, if the Minister said the contract would be renewed, the Committee would not be sitting today.

The Chairperson repeated the Report does speak to the lines of reporting of the Executive Director to the Minister and that IPID is not a Chapter Nine institution.

Mr Ramatlakane suggested the insertion of IPID being a government department “in terms of the IPID Act”. Another insertion is that section 7 of the current IPID Act speaks to the reporting of the Executive Director to the Minister at regular intervals.

Mr Ramatlakane suggested the insertion of “key performance indicators” in the findings on the appointment letter.

The Committee proposed the insertion of a date for when the security clearance lapsed.

On the applications for SAPS’ posts, Mr Shaik Emam said the date of employment would have been 1 April 2019.  When one applies for other jobs, one is looking for better prospects, is unhappy, looking for more money and various other reasons. Looking for other jobs showed one cannot be passionate about what one does. If Mr McBride did get these jobs and would have started on 1 April 2019, what would have happened to IPID? In its deliberations, the Committee found that the impression was created that IPID could not function without Mr McBride and would come to a standstill. If Mr McBride got these jobs, he would not say IPID would come to a standstill because someone else would have to fulfil the position of Executive Director.   The finding in the Report should elaborate on this.

Mr Ramatlakane suggested the insertion of what the consequences could have been for IPID had Mr McBride been successful in his application i.e. leaving the post in the middle of the contract.

Mr Shaik Emam agreed but more along the lines of: had Mr McBride been successful in these applications, IPID would have continued functioning normally. The point is that whether Mr McBride remained or not, IPID would have continued functioning normally.

Mr Maake said this would fall under the observations.

The Chairperson noted that Mr Mbhele tabled a list of recommendations arising from the process in the Committee meeting yesterday.

Mr Maake suggested the recommendations become part of the Committee’s Legacy Report for consideration by the Sixth Parliament especially as some of the recommendations required amendment to legislation.

Mr Ramatlakane agreed as the scope of the current Report does not present latitude to include some of the recommendations. The Committee should instead resolve to include the recommendations as an annexure to its Legacy Report for the Sixth Parliament to attend to. The Legacy Report speaks to each of the bodies within the oversight responsibly of the Committee.

Mr X Ngwezi (IFP) appreciated the recommendations suggested although some were not within the current scope of the decision the Committee needs to take. The recommendations would be useful for future amendment to legislation.  

This was echoed by Mr Shaik Emam who appreciated the recommendations but noted it should be dealt with at the appropriate time and platform.  

The drafters were instructed to make the proposed amendments to the Report. The Committee would thereafter deal with the conclusion to the Report and recommendations.

Amended Report page by page consideration

Members noted further grammatical which were required.

Mr Maake suggested the wording of the observation on “briefings to the Committee” be phrased differently because he did not think it was factual to say there were no convictions.

Mr Ramatlakane agreed and proposed the wording along the lines of unsatisfactory convictions.

The Chairperson opened the floor to Members for comments on the conclusion and recommendations of the Report.

Mr Ramatlakane, in relation to conclusion, submitted that the Committee carefully considered all the submissions and additional relevant information provided to it. In deciding the matter concerning the renewal of the appointment of the Executive Director, the Committee had regard to its findings as set out above in the Report including:

-The breakdown of trust in the working relationship between the Minister and Executive Director the existence wherein is in the public interest and indispensable for the proper and effective functioning of IPID and proper service delivery

-The findings of the PSC of serious irregularities concerning the complaint of Ms Seohatse

-The failure to fulfil the requirements of the employment agreement with regard to the conclusion of the performance agreement and the conducting of the assessments

-Pending investigation by the Public Protector into the serious allegation of mistrust, inter alia, by members of the staff of IPID

- The fact that the Executive Director has no security clearance

As a result, the Committee has concluded that the appointment of the Executive Director of IPID, Mr Robert McBride, should not be renewed for a further term.

Mr Ngwezi noted that the contract expires today and in the contract, there is no provision that compels the Minister to renew the contract although it is provided for in the IPID Act. He suggested the Committee begins the process of recruiting the new Executive Director immediately. Mr McBride should be free to apply if he feels so. He thanked Mr McBride very much for his services to the people of South Africa and IPID.

Mr Shaik Emam has considered all the facts before the Committee including submissions by the Minister and Mr McBride and other documents submitted by relevant persons, considered that the contract itself is prescriptive in that it says it expires on 28 February 2019 with no option of any renewal even if though the Act provides for it – the contract is specific and all the Act provides for is renewal should it so be desired. Considering the fact that indeed it was Mr McBride who wrote to the Minister first and the Minister ignored the letter because he believed the contract is coming to an end on 28 February 2019 and did not have to respond. This letter was followed up again by Mr McBride putting pressure on the Minister to respond accordingly which the Minister did. In terms of the IPID Act, it is only the Minister that nominates an Executive Director in this particular case. This means the Minister has the power to nominate. Once this is done, the Minister has the power to decide if the person holding the office is not fit and proper and cannot provide the services based on the relationship that exists or the allegations against him. The Member believed the Minister was correct to inform Mr McBride although it is the Committee who makes the final decision and not the Minister. The Minister, by virtue of informing Mr McBride, has now left it to the Committee to decide. Looking at the report of the PSC and allegations from both sides, one might not dispute there might be some facts. Mr McBride will have the opportunity to continue giving evidence whether on state capture or SAPS – anybody found responsible or guilty must be dealt with according to the law because we are all equal before the law. The Member did not believe the submission of Mr McBride that a change in leadership would affect investigations because it is clear he applied for two jobs – if he got the job he would have left immediately and IPID would continue functioning. The interests of Mr McBride then were really in having a job and not in IPID. There were many allegations in the media and matters even brought to court but no one has been found guilty to date – an example is the Phahlane matter. Taking everything into consideration, the NFP is of the view that, in the interests of IPID and fighting corruption amongst police officers in order to deal effectively with the challenges faced of corruption in SA, it is not in the interests of the Committee to extend the contract of Mr Robert McBride. While the Minister would nominate someone in terms of the Act, the Member quoted the words of Hassan Howa when he said “you cannot play normal sport in an abnormal society” – just like IPID cannot function normally, optimally or successfully in an abnormal relationship that exists between the Minister, Executive Director and other staff. The NFP is of the view that the contract of Mr McBride not be extended.

Mr Maake emphasised when the process started, the most important matter for the Committee to consider is the total breakdown of trust or relationship – if this is the situation, the other facts would not even be looked at because the most important one is the relationship of trust. The Committee must ensure there is service delivery. In such a relationship, there can never be any optimal service delivery. It is good for everybody else if there is not renewal – it is good for the Minister, it is good for Mr McBride and it is good for the masses outside because what they are interested in is service delivery. The Member repeated that he would not even check the other information but only this very point – its existence superseded everything else according to the Member. It is even worse if it is to believed the two of them belong to the same organisation.

Mr Ramatlakane repeated his proposal for the recommendation and conclusion for purposes of process: the Committee carefully considered all the submissions and additional relevant information provided to it. In deciding the matter concerning the renewal of the appointment of the Executive Director, the Committee had regard to its findings as set out above in the Report including:

-The breakdown of trust in the working relationship between the Minister and Executive Director the existence wherein is in the public interest and indispensable for the proper and effective functioning of IPID and proper service delivery

-The findings of the PSC of serious irregularities concerning the complaint of Ms Seohatse

-The failure to fulfil the requirements of the employment agreement with regard to the conclusion of the performance agreement and the conducting of the assessments

-Pending investigation by the Public Protector into the serious allegation of mistrust, inter alia, by members of the staff of IPID

- The fact that the Executive Director has no security clearance

As a result, the Committee has concluded that the appointment of the Executive Director of IPID, Mr Robert McBride, should not be renewed for a further term.

This was the proposal as moved by Mr Ramatlakane and seconded by Ms A Molebatsi (ANC).

The Report and recommendation of the Committee is carried.

The Chairperson said it is important for the Committee that there should be stability in IPID. It is very clear in the IPID Act that if there is a vacancy, the Minister must nominate an acting Executive Director. The Committee believes it is very important that such individual must be a fit and proper person and relevantly qualified to do oversight work. The name of the individual, qualifications and CV should come to the Committee. The Minister would be invited before the Committee, should the process of an acting Executive Director unfold, to motivate his decisions and reasons for appointing such a person to an acting position. The IPID Act outlines six months for the filling of such vacancy. The Committee believes the process should be transparent, meet the proper requirements, have proper due diligence in terms of qualifications, interviews and short-listing before submission of the name of the individual for the Committee to consider.

The meeting was adjourned.