The Select Committee met for a third hearing on the Sigogo Petition about reported irregularities, maladministration, fraud, poor working conditions and victimization of employees at the Khayelitsha District Hospital as well as an alleged cover up by the Public Service Commission (PSC).
The Committee was briefed by Parliamentary Legal Services on its opinion that the invitation and then summons extended to the Western Cape Provincial Health Department to appear before the Committee was legal. This was in contrast to the legal opinion that the Western Cape had obtained from senior legal counsel.
The Committee was at odds on whether the meeting could be recorded after it was discovered that a Member of Parliament was recording the meeting and taking photographs. The Democratic Alliance member left the meeting in protest complaining that the Chairperson is overreaching his authority as the hearing into this petition is illegal and goes against Committee guidelines.
The Department of Labour briefed the Committee on the alleged unfair labour practices and health and safety complaints at Khayelitsha Hospital. It reported that a certificate of electrical compliance had been issued. DOL stated that it could not respond about the unfair labour practice as this was within the mandate of the Health Department bargaining council.
Members welcomed the Parliamentary Legal Services briefing and said that their work must go on for the good of the people of Khayelitsha. Members asked why DOL did not refer the matter of unfair labour practices to the bargaining council which DOL said was the correct body to deal with unfair labour practices, what happened about the fire at Khayelitsha Hospital, and when and where fire drills were undertaken at the hospital.
The Committee agreed that the bargaining council appear before it to answer about the unfair labour practice. It will adopt resolutions and recommendations on the Sigogo Petition on 28 March 2019.
The Chairperson said it should be remembered that this is the third hearing of the Sigogo Petition. Last year the Committee invited the Western Cape Health MEC, Ms Nomafrench Mbombo, as well as managers and directors cited in this petition. The MEC and the Head of Department stated that the Committee does not have powers to call them to account. The Committee tried to talk to them a second time via the legal department of Parliament, but they responded also via their legal department. Then the Committee agreed to use the powers and privileges of the Committee to subpoena them. Both the NCOP Chairperson and the Secretary to Parliament signed the summons. Then Parliament's legal department instructed the state attorney to appoint a sheriff to serve summons on all the people to appear before the Committee. The state attorney replied to say he is defending the people that had been summoned by the Committee. The Chairperson asked the state attorney how the state comes to defend these individuals. The state attorney replied she was forced to sign and defend these individuals, which was the question also she was asking.
Dr H Mateme (ANC, Limpopo) interjected and asked if taking photos and recording this meeting is allowed - as she had noted a DA member doing this.
The Chairperson replied that he does not think taking photos and recording the meeting is allowed but they will seek legal advice on this.
Ms B Engelbrecht (DA, Gauteng) said that this is an open public meeting and she is recording the meeting.
The Chairperson said the taking of photos is not allowed, but recording the meeting can proceed because this meeting is live on TV, and they are not hiding anything for that matter.
The Chairperson reminded the Committee that there was a query at the last meeting about labour. The Committee had sent a labour inspector to inspect Khayelitsha Hospital due to the reports about it. Members were not happy as the inspectors were checking buildings and other items, but did not report on the unfair labour practices noted in the petition. The inspectors had said that that is not their duty. Therefore, today the Department of Labour (DOL) is here to explain their roles within labour.
The Committee had expected the bargaining council to come before the Committee but unfortunately they did not get a response from them.
Ms Engelbrecht said she at this Committee meeting in protest as the Chairperson is overreaching his authority. This petition is illegal as it goes against the Committee guidelines. The Committee is not authorized to intervene This petition has been seen by several stakeholders such as the Public Service Commission (PSC) and the courts. This petition is outside the mandate of this Committee. Therefore, she cannot part of this. The Chairperson is a disgrace to Parliament, a disgrace to the Constitution, a disgrace to the democracy of this country and to what they stand for.
The Chairperson said Ms Engelbrecht must mind her words because, first of all, they have called a legal adviser to advise this Committee.
Ms Engelbrecht interjected noting that the Chairperson does not know his own rules. This is a public open meeting and she is allowed to copy a record of this meeting. It is shocking that the Committee Chairperson does not know his own rules.
The Chairperson said that is why they have called the parliamentary legal adviser.
At this stage Ms Engelbrecht walked out of the meeting.
Ms G Oliphant (ANC, Northern Cape) said this is a Petitions Committee and petitions come to this Committee. She asked if it is because the petition comes from the Western Cape, that the petition should be taken away from the Committee and not form part of their mandate, as alluded to by Ms Engelbrecht.
Dr Mateme said their title as Members of Parliament is “Honorable”. It should be on record that the words used by Ms Engelbrecht are not at all honorable. They are leaders of society and society is looking up to them. They need to behave accordingly.
The Chairperson ruled that Ms Engelbrecht was out of order. On the question of whether one can record or not record the meeting, the legal adviser must give advice on that.
Mr Siviwe Njikela, Senior Legal Adviser: Parliament Legal Services, said he may need a little context to the question. His assumption is that he was called to explain the proceedings they are involved in with regard to the petition. What he can say is that Committees are open meetings generally, unless the Chairperson takes a decision that the meeting be closed.
The Chairperson ruled that people can record the meeting.
Dr Mateme said taking photos is not allowed and there is precedent for that. She does not know if the Rules should be revisited when it comes to recording because if photos are not allowed, recording should also not be allowed. Her concern is that it has the potential to inhibit proper debate. As a South African she acknowledges that their democracy is growing, but this recording has the potential to inhibit debate in the meeting because she does not know what that information is going to be used for. Their protection as Members is within the precinct of Parliament and once outside the precinct of Parliament their protection is not guaranteed. The Rules of Parliament can protect them whilst inside Parliament in whatever she says in the meeting, but the same rules will not protect her while in Checkers. When Members are outside, they are vulnerable.
Secondly, if Ms Engelbrecht had a clear conscience and she was sure what she was doing is right, she would still be sitting in this meeting, but she walked out.
Ms Oliphant agreed with Dr Mateme. Respect goes a long way and Ms Engelbrecht should have asked permission from the Chairperson to record the meeting. Secondly, she is against the recording because the provincial heads do not want to appear before the Committee and they are getting the news from the media on the proceedings.
The Chairperson continued that he had phoned the state attorney who said the Chairperson must record that she was forced to sign the summons, which was a directive from above. This was in response to the Chairperson asking how the state attorney can defend these individuals. How can she as state attorney appoint a sheriff to serve summons and yet defend those individuals who were summoned to come and account to the Committee? The state attorney said she was forced to sign, which was a directive from above.
This morning an interdict was received that the Committee is not to force them to come before it. They indicate that the Committee has no powers to do so and they cite lot of things. The interdict does not mention Dr Engelbrecht and Ms Nomafrench Mbombo. They talk about the Provincial Department of Health. The Committee never called the Department of Health; it only called managers, the HOD, and other officials to account to this Committee. There is a conflict of interest in this matter.
Parliamentary Legal Services briefing
Mr Siviwe Njikela, Senior Legal Adviser: Parliament Legal Services, said Members are aware that the Committee had in the past invited the Western Cape Provincial Health Department to appear before the Committee. However, the provincial department has expressed an opinion that it does not believe this Committee has the power to call it to account. For that conclusion it has relied on a legal opinion, which apparently it sought from a senior legal counsel. Parliamentary Legal Services has not seen that legal opinion, but the province has quoted extensively from that legal opinion. And that legal opinion is the basis for the province not appearing before the Committee.
Mr Njikela said the Chairperson has requested Parliamentary Legal Services to advise them on the position that the province has taken. They have given an opinion which is clearly at odds with what the province seems to believe. Their view is that the Constitution and the Rules of Parliament give the Committee an open mandate to receive petitions and to call to account all the officials who may have to answer. And that power is clear in the Constitution and is not limited to legislative matters as the province seems to suggest
But then the summons was issued. In the first instance, the difficulty that the province had with the summons was the late serving of it because the summons was served a day before the required appearance. Then the summons was reissued last Friday for appearance today. Again the province had difficulty with that as fundamentally it believed that the Committee does not have power to call it to appear before this Committee. As a result, the province applied to court to interdict the Committee from enforcing that summons. The interdict happened yesterday as Legal Services received papers in the course of the day yesterday.
Mr Njikela said he had discussions with the Chairperson and they have come to the conclusion that the Committee is not prevented from proceeding with the meeting, even in the absence of the province, and to make conclusions and recommendations based on the evidence tendered before it. The province has been given an opportunity not once, but twice, to appear before this Committee to state its view. For its own reasons it decided not to appear. Whether the Committee does have power to summon the province to appear before it is the matter that still has to be determined by the court. Clearly there is a difference between Parliament and the province on the powers of the Committee. This matter which the province has taken to court has been postponed without a set date. Thus they still have to go to court to argue whether the Committee does have power or not. Therefore, they are far from the end on this matter.
Dr Mateme said she is encouraged by this briefing and they must go on with their work. Perhaps the province is banking on the fact that the Fifth Parliament is rising and the Sixth Parliament is coming in and things will start from scratch. However, there are records and what is written is written. This matter will continue for the good of the people of Khayelitsha. She suggested that they go on with their work.
The Chairperson said they still have time to adopt the resolutions and recommendations on 28 March 2019. The Committee will conclude its work and recommend to the NCOP to accept those recommendations.
Ms Oliphant said this means that the Western Cape province is “above the Constitution” and will not be called by this Committee. The province and Ms Engelbrecht are undermining the Committee.
The Chairperson requested that the Head in the Office of Director General in the Department of Labour (DOL) provide clarity as Members were previously not happy with the explanation by the Chief Inspector.
Department of Labour (DOL) briefing
Adv Malixole Ntleki, Head: Director-General’s Office: DOL, said previously they had been invited to listen to complaints from the Khayelitsha Hospital officials and to look into that matter. This matter is twofold: health and safety issues and allegations of unfair labour practice or conduct by the employer towards employees. The element of noncompliance with the Occupational Health and Safety Act and regulations is not an allegation any longer as they have proven the employer is non compliant with certain elements of the Act.
The allegations of unfair labour practices or conduct by the employer remain allegations as they have not proved them yet. Therefore, it comes back to DOL specifically to look at the role it has to play in this regard. As a department they operate through the inspectors in the inspectorate section. These inspectors are creatures of statute and are appointed in terms of section 63 of the Basic Conditions of Employment Act. In this particular case there is a dispute resolution mechanism that is relevant.
There are specific institutions which deal with unfair labour practices better, as labour inspectors cannot be involved in unfair labour practice disputes or try to resolve them. These include bargaining councils that deal with unfair labour practices. The Department of Health has a bargaining council that deals with such matters and it has a dispute resolution mechanism which is designed and agreed upon by people who operate within that sector. Once there is a bargaining council, the DOL’s involvement is limited and that is where the Chief Inspector’s involvement is limited. When the Chief Inspector visited the Khayelitsha Hospital, he only dealt with the aspect he is mandated to act on, which is health and safety. The other element falls within the bargaining council. Therefore, it made it difficult for DOL to investigate the matter of unfair labour practice because it fell under the bargaining council.
The Chairperson asked why DOL did not refer the unfair labour practice matter to the bargaining council because the Committee was not aware that this matter fell under the bargaining council.
Ms Oliphant asked what happened about a “building that burnt” at Khayelitsha Hospital.
Adv Ntleki replied that they did not refer the matter to the bargaining council for the following reason: there is a process that is prescribed by the bargaining council on how matters are referred to it. Certain forms have to be filled in and must be submitted to the employer and the employer will be given a hearing date, and the hearing will proceed.
The Chairperson said they should call the bargaining council to come before the Committee.
Adv Ntleki agreed that the Committee must call the bargaining council to come and tell the Committee what it has done about matters emanating from Khayelitsha Hospital. If there are delays, it must state why there are delays in resolving such matters because DOL cannot speak on the bargaining council’s behalf as the matter is within the mandate of the bargaining council. DOL can only assist the Committee by asking the bargaining council which matters have been referred to it by the Khayelitsha Hospital officials.
Mr Tibor Szana, DOL Chief Inspector: Occupational Health and Safety, referred to the previous committee meeting where there was a discussion about a fire and electrical matters. In terms of legislation, DOL does have a mandate on electrical matters. Therefore he had requested his inspectors to go back to Khayelitsha Hospital to have a look. An approved electrical Inspection Authority had gone there and indicated via a report called a Certificate of Compliance that area is safe for use. They can forward the report to the Committee based on the inspection that took place at Khayelitsha Hospital.
They had confirmation from an expert in the field who looked at the electrical installation and it has been declared safe in terms of a Certificate of Compliance, which is the requirement.
Mr Abduragmaan Ernstzen, NEHAWU Public Interest Representative, said in the past he had seen a letter issued by the Fire Chief where there were about seven or nine points indicating electrical non compliance by the institution. There were due dates for these non compliant items to be fixed and they were not done by the due dates. Almost eight months later these items had not been finalized. During those eight months, as he had testified in the first meeting in 2018, there was a fire in one of the training rooms, which caused the staff to panic. One air conditioner was malfunctioning with smoke in the room and they were running around and there was panic in the hospital. At that time there was no fire safety training, fire marshals and evacuation procedures. That is why the Fire Chief did not attend any of the fire disaster meetings as he had already issued a letter that these items needed to be fixed and were never fixed.
Due to the negligence of the Khayelitsha Hospital management, it took a very long time for those things to be fixed. He has never seen a Compliance Certificate nor has some of the staff seen it, and he is not sure when that certificate was issued. These were the concerns raised in the first NCOP meeting in November 2018. So, he is not sure what the Labour Department is investigating.
Ms Oliphant asked when the department holds its fire drill, and how often they have a fire drill. There are patients and staff in that hospital who need to learn the fire drill so when a fire ignites they know what to do.
Adv Ntleki replied that there are certain areas which are a no-go for them and fire is mainly for the fire department. It does not fall under their department and operates differently. The fire department issues its own compliance documents and DOL is not involved. What DOL looks into when they go to a work place is if it has a risk assessment. There must be risk assessment as prescribed by law.
Adv Ntleki said the DOL does inspections in two ways on the day of inspection. First they ask for specific documents which are prescribed by law that the employer must keep. They do an audit of those documents. Then they do a walk through and check that fire extinguishers are in the right place. If not, the inspector will note that as non compliance as it is a contravention of the Health and Safety Act regulations. Secondly, they have an obligation to interview the employees. They have an obligation to be accompanied by the health and safety officer of the institution itself and a trade union official when doing the rounds.
Adv Ntleki said that after non compliance has been discovered, there is a legal document which is called a Contravention Notice. There are three notices: contravention notice, improvement notice and prohibition notice. The prohibition notice is only issued in cases where there is a high risk or threat that somebody might get hurt or die. An improvement notice is issued when something can be fixed in a short space of time. The contravention notice is issued when an employer has contravened several items in the regulations and the employer must comply with that notice within 60 days. After 60 days they go back to check if the employer has complied. If the employer has not complied after 60 days, then they make recommendations to the National Prosecuting Authority (NPA) to start prosecution. The NPA will decide if the case should go to court or not. The employer will receive either a prison sentence or a fine if found guilty.
In this current case of Khayelitsha Hospital, the 60 days has elapsed. The documents which raised matters at the Khayelitsha Hospital are with the Chief Inspector, which can be forwarded to the Committee to take the matter forward.
The Chairperson thanked Adv Ntleki and asked the Chief Inspector to email the documents to the Committee Secretary because they are now rounding off this hearing. The Committee will sit alone and decide on this particular petition. The Committee will come up with the date on which it will adopt the recommendations on this matter.
The Chairperson thanked those invited and for allowing Members to fulfill their oversight mandate.
The meeting adjourned.