Legal Opinion on Procedure for Consideration of President’s Recommendation for Removal of Adv Jiba & Mrwebi from Office – provided to Members only
Mokgoro Enquiry Report
Advocate Jiba submissions on the report
Annexure A - Advocate Jiba submissions
President's letter to Advocate Jiba
Advocate Mrwebi submissions on report
President's letter to Advocate Mrwebi
The Portfolio Committee and the NCOP Committee on Security and Justice met jointly for a briefing by a Senior Legal Advisor from Parliament’s Constitutional and Legal Services Office (CLSO) on the procedure to be followed by the Committees in considering the President’s recommendation for the removal of Advocates Jiba and Mrwebi from office.
The Parliamentary Legal Services had been asked to advise the Committees on the process and procedure to handle the matters of Advocates Jiba and Mrwebi as there was no standard procedure for dealing with the matter; whether Adv Breytenbach should recuse herself from the proceedings; on the applicability of the Public Service Act to Adv Mrwebi who was a Special Director.
The CLSO provided a memorandum containing its legal opinion, noting the short time period given for consideration of the matters.
Firstly, section 55 of the Constitution empowered Parliament to determine its own procedures while Parliamentary Rule 167 empowered the Committees to determine how they would proceed. It was consequently the opinion of Legal Services that the Committees could determine how they dealt with the matter in the absence of a specific rule. However, the one requirement was that the proceedings were fair which meant that all sides had to be heard, albeit simply by examining the documents from the Mokgoro Inquiry, the Presidential decision and the various submissions by the two officials. It was not up to Parliament to re-open the hearing. According to the National Prosecuting Authority Act, it invited Parliament to make a decision about the restoration of the two officials, and not a decision on whether to remove them.
Secondly, the Legal Advisor noted that Ms Breytenbach had recused herself from the proceedings as she had been a witness in the Mokgoro Commission. Although the CLSO was of the opinion that it was not necessary for her to recuse herself, the Office did appreciate her recusal as it enhanced the perception of fairness.
Thirdly, the legal opinion was that section 14(3) of the National Prosecuting Authority Act specifically stated that in respect of all Directors and Special Directors, for the purpose of their removal, Section 12(6) of the Act was applicable.
Members asked whether it would be in order for the two Committees to sit together to discuss the matter but take decisions separately and report to their Houses separately. Another Member asked if it was even necessary to submit two separate reports.
Another concern of the Members was the process in relation to the President. Was Parliament simply a rubber stamp in terms of the Act, or was it in the Constitution? For what good reason did it come to Parliament after those processes and in which Act was that contained?
Members requested clarity on the parliamentary process. Was the legal opinion saying that the Committees did not have to call the officials to appear before them? From when would the 30 days for completion of the process be counted? Was there an opinion on the fact that the 30-day requirement was followed by the words ‘or soon thereafter’? Members asked to be officially furnished with the Mokgoro Report, the representations and the decision of the President with his reasons.
The Co-Chairperson stated that the political parties would have to consider the legal opinion and that the two Committees would be meeting separately to decide on the process to be followed.
Co-Chairperson Magwanishe informed the meeting that as soon as the budget process had been completed, the Committees would attend to the matter of the President’s Recommendation for the Removal of Adv Jiba and Adv Mrwebi from Office. In the interests of efficiency and saving time, the Senior Legal Advisor, Adv Siviwe Njikela, and Legal Advisor, Adv Nethi Mjenxane, from the Constitutional and Legal Services Office (CLSO) in Parliament would brief both Committees at the same time on the procedure to be followed.
Co-Chairperson Shaik greeted everyone and apologised for the late arrival of her Committee.
Parliamentary Legal Opinion briefing
Adv Siviwe Njikela apologised that the Memorandum was addressed to the Portfolio Committee only but it had first written asking for advice. He was grateful that the arrangement had been made for the briefing to be made to both Committees together.
Questions to be addressed
Three questions had been addressed to the CLSO:
1. To advise the Committee on the process and procedure to handle the matters of Advocates Jiba and Mrwebi as there was no standard procedure for dealing with the matter.
2. To address the question of whether Adv Breytenbach should recuse herself from the proceedings given that she was a witness in the Mokgoro Inquiry and there was a potential conflict of interest.
3. To advise on the applicability of the Public Service Act to Adv Mrwebi who was a Special Director, and not a Director or Deputy Director, of the National Prosecuting Authority and whether the Committee had legal authority in the matter.
Adv Njikela turned his attention to the legal responses in the memorandum provided to Members.
Question 1 – The Procedure
The Rules did not provide a procedure for dealing with the removal or restoration of the National Director of Public Prosecutions. However, section 55 of the Constitution empowered Parliament to determine its own procedures. Parliamentary Rule 167 empowered the Committee to determine how it would proceed. It was consequently the opinion of the CLSO that the Committees could determine how they dealt with the matter in the absence of a specific rule.
CLSO suggested that the information that had already been tabled before the court, firstly the Mokgoro Report with its findings and recommendations to the President was a relevant matter that the Committee had to consider. The second set of relevant documents to be considered were the representations received by the President from both Advocates Jiba and Mrwebi about the President’s decision to remove them.
In the absence of specific rule that governed the Committee’s process, the requirement to be satisfied by the Committee was that whatever procedure the Committee decided to adopt, it had to fair. Fairness in law meant that both parties had to be heard before a decision was taken. ‘Heard’ in that context did not mean that they had to be physically present. There was a report, there was the decision of the President and there was sufficient representation which the Advocates had both made to the President and which had culminated in the decision that the President had taken. CLSO was not suggesting that there had to be another hearing. It was not up to Parliament to re-open the hearing. A hearing had happened and it had resulted in an outcome. If one looked at Section 12 of the National Prosecuting Authority Act (NPA), it invited Parliament to make a decision about the restoration of the two officials, and not a decision on whether to remove them. That decision had already been made. The Committee had to consider whether there were grounds to restore them to office. That was the decision that the Committee had to make.
Question 2 - Recusal of Ms Breytenbach (DA)
CLSO had come to the conclusion that given that Ms Breytenbach had been a witness in the Mokgoro Inquiry and that in the Committee, she was not the sole decision maker, there was no requirement in law for her to recuse herself. However, CLSO appreciated her recusal of herself – she had already written a letter to that fact – as it might help to enhance the perception that the process was fair. There was no need in law for her recusal as she had not been the judge in the case and she represented a political party in a Committee but her recusal enhanced the perception of fairness.
Question 3 - Adv Mrwebi: Special Deputy Director
CLSO had addressed the question of whether the matter of Adv Mrwebi should be before the Committee since he was not a National, or a Deputy National, Public Prosecutor. Section 12(6) of the NPA Act on its own did not refer to a Special Director and that was where the confusion might have occurred. However, section 14(3) specifically said that for all Directors and Special Directors, for the purpose of their removal, Section 12(6) was applicable. The CLSO advised that Adv Mrwebi was appropriately before the Committee for a decision on the matter.
Adv Njikela stated that those were the opinions of CLSO on the matters presented to the Office.
Adv Nethi Mjenxane had nothing to add.
Co-Chairperson Magwanishe noted that the Members of the Committees and the political parties had only received the document at the meeting and still needed to go through the document but he would open the floor for clarity-seeking questions.
Co-Chairperson Shaikh asked for the opinion of the Legal Advisors on the procedure. Parliament and the National Council of Provinces were two separate Houses and each could determine its own procedure but she asked if it would be in order for the two Committees to sit together to discuss the matter but to take decisions separately and report to their Houses separately. She was asking for confirmation of such an approach.
Adv H Mohamed (ANC) noted the opinions given in the various interpretations. Since the notification from the Presidency was to the Speaker as opposed to it now reaching the Committee, he wanted to clarify the date for action. He knew it was 30 days but from when would the 30 days be counted? What implications did it have for the Committee starting the following day? He also knew that the 30-day requirement was followed by the words ‘or soon thereafter’. Did CLSO have a perspective on that one? He appreciated the opinion that it did not include any appeal or review process. The responses had to be applied in terms of Rule 10. He added that the Members would present the responses of their party national congresses at the Committees.
Mr E Mthethwa (ANC, KZN) asked if there was any harm in adopting one report instead of having two reports adopted in two separate Houses?
Co-Chairperson Magwanishe reminded Members to ask questions of clarity about the opinion. If Members asked other questions, the Legal Advisors might not have applied themselves to those questions. He added that Members were at liberty to ask such questions but had to bear in mind that the Legal Advisors might not have formulated answers to those questions.
Adv T Mulaudzi (EFF) asked for clarity in terms of the law. What started first? Did the President have to take the recommendation of the Inquiry and take a decision, as in dismissing them, before the processes of Parliament? Was Parliament simply a rubber stamp in terms of the Act, or was it in the Constitution? For what good reason did it come to Parliament after those processes and in which Act was that contained?
Mr S Swart (ACDP) thanked the Legal Advisors for the legal opinion which had been prepared under significant pressure, having been requested only the previous week. To clarify, Parliament had a very narrow mandate and was purely looking into the President’s decision based on the Mokgoro Commission. The Committees had to apply themselves to the Report and other relevant information which the President might have considered in arriving at that decision. The legal opinion stated that the Committee had no legal obligation to provide procedural rights. Was CLSO saying that the Committees did not have to call the officials to appear before them?
Mr Swart noted the reference to the time limits and the relevant paragraph stating that there was no obligation for an oral hearing. The Committees had to consider the fairness of the President’s decision but they would also need the relevant documentation. The documents referred to in paragraph 20 of the opinion were: the President’s decision, the Mokgoro Report and the representations of both Jiba and Mrwebi. He presumed that those representations were subsequent to the Mokgoro Inquiry, and prior to the President’s decision. His understanding was that the Advocates would have had a hearing at the Inquiry, after which there had been a finding and subsequently the representations were made to the President before he had made his decision.
In Mr Swart’s opinion, the key issue was fairness and how the Committee Members applied their minds to the evidence and to what degree they needed further oral evidence or representations. That was what the Members would be grappling with.
Mr W Horn (DA) asked that Members be officially furnished with the Mokgoro Report, the representations and the decision of the President with his reasons in order for Members to come back to the Committee with a proposal about the relevant process. It was quite clear from the opinion that there might be questions arising from those documents which Members could not know of at the current time. In principle, he did not have a problem with the opinion received.
Response by Legal Services
Adv Njikela replied to the question about the Committees jointly considering the matter but making their finding separately and submitting separate reports, as well as whether there was any harm in the Committees adopting one report. He had a sense that the matter had been referred to the Committees separately. The Committees’ tasks were activated by referrals from different Presiding Officers so he did not believe that it was within the discretion of the Committees to decide on a joint report. As far as joint consideration of the matter was concerned, he had not anticipated that approach, but he would consider it further and come back to the Committees quickly. He wished to look carefully at the implications in view of the different referrals to the Committees.
Adv Njikela explained that the 30 day limit was addressed in the opinion. Parliament was required to pass a resolution within 30 days. There was a second option for Parliament as the section continued with the words “or as soon as is reasonably possible thereafter”. His reading was that the section required Parliament to deal with it as expeditiously and, if possible, within 30 days. If that was not possible, it had to be dealt with within a reasonable time. His advice to the Committees was to deal with this as an urgent matter and not rely on the second option. The Committees should act with the necessary urgency.
In response to the question on procedural rights, Adv Njikela said that CLSO was trying to convey the fact that there had been an elaborate process – there had been terms of reference, a Commission established and all affected parties had been given an opportunity to be represented, to lead evidence and to cross-examine witnesses, and all the parties had been legally represented. His Office was of the opinion that the processes had been comprehensive. Even after representations to the President, the President had gone- back to the two officials and asked for their reasons why he should not dismiss them. They had both submitted extensive reasons. The President had gone to great lengths to ensure that he had heard all parties. Both parties had made extensive submissions to the President, through their lawyers, as to why they should not be removed.
Adv Njikela had seen the representations and he was convinced that there had been a very thorough process. But that was at the level of the Executive. The Committees had to consider the documents before them, make an assessment and then determine if additional information was needed or if the Committees needed people to appear before them to make oral presentations. That decision was entirely at the discretion of the Committees. The Committees had to make that assessment and CLSO was not in a position to make that decision for the Committees.
Adv Njikela spoke to whether it was proper for the officials to be removed from Office before Parliament had made a decision. Section 12(6)(b) of the NPA Act spoke about removal and that once the President had made a decision, he had to refer it to Parliament within 14 days. Adv Njikela said that he understood two points in that section: 1. there was a removal decision by the President; 2. if Parliament wished to re-instate the officials, then it had to communicate that to the President. It was a process where one decision was followed by another. There was no disjuncture.
Co-Chairperson Magwanishe thanked Adv Njikela.
Co-Chairperson Magwanishe stated that the political parties had to consider the legal opinion and make informed decisions. The Committees would meet in their separate Houses to discuss the process going forward. There was one issue which Adv Njikela had agreed to consider and to come back with a response. There was also the request by Mr Horn about getting access to all the documents. He requested the Committee Secretary obtain all the documents and distribute them to Members so that they could be considered. The respective Committee Secretaries would convene the next meeting under their respective Chairpersons where the Committees would take the matter forward.
The suggestion was that the Committees consider the matter together but they would vote separately and submit separate reports.
No related documents
Magwanishe, Mr GB
Shaikh, Ms S
Breytenbach, Adv G
Dodovu, Mr TSC
Dyantyi, Mr QR
Horn, Mr W
Maseko-Jele, Ms NH
Mfayela, Mr SE
Mmola, Ms MP
Modise, Ms TC
Mohamed, Adv H
Motsamai, Mr K
Msimang, Prof CT
Mthethwa, Mr EM
Mulaudzi, Adv TE
Ncitha, Ms ZV
Ndlozi, Dr MQ
Newhoudt-Druchen, Dr WS
Nqola, Mr X
Selfe, Mr J
Sileku, Mr IM
Swart, Mr SN
Visser, Ms C
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