Removal of Adv N Jiba & L Mrwebi from NPA positions

Meeting report

Opening remarks

Co-Chairperson Magwanishe welcomed everyone and stated the two Committees were meeting together to consider processes to be adopted in the matter of Adv Nomgcobo Jiba and Adv Lawrence Mrwebi.

The Committees would be considering the Report from the President on the removal of Adv Jiba and Adv Mrwebi. The President had suspended the two Advocates and after a Commission of Inquiry had concluded its work and sent its Report to the President, he had given the Advocates the right to make further representation. Subsequent to those representations, the President decided to terminate their employment. Parliament was called upon to decide whether to re-instate the two Advocates to their positions in the National Prosecuting Authority (NPA).

The Committees had received a legal opinion from the parliamentary Constitutional and Legal Services Office on matters sent to that Office for advice as to whether the two Committees could consider the matter together. The advice in that case was that two Committees could meet together but had to observe the rules of both Houses – the National Assembly and National Council of Provinces (NCOP). The two Committees had to vote separately.

Co-Chairperson Magwanishe stated the meeting today is to consider the legal opinion and to agree on how the matter would be processed.

Mr R Dyantyi (ANC) thanked the Chairperson for being consistent on the matter he wished to address. He wanted to ask about the second point on the agenda which stated: “whether to restore or not”. He wished to amend the wording. Members were there to ‘consider” the Report on Adv Jiba and Adv Mrwebi. The recommendation would arise out of the consideration. The way the agenda put it confined Members to a particular corridor. The item had to be consistent with what Members were going to do.

Co-Chairperson Magwanishe agreed. Firstly, Members had to agree on the process to be followed, having received the legal opinion. The Committees would be dealing with that particular process and once that was dealt with, the Committees could proceed as all parties were in attendance.

All Members agreed on the re-phrasing of the agenda and the agenda was adopted.

Co-Chairperson Magwanishe asked for the views of political parties on the process.

Mr J Selfe (DA) suggested it was very important that the Committees decide whether the two Advocates should have the opportunity to make submissions. The DA thought he Advocates should be asked for submissions, in written form and within a reasonable time because Parliament had a particular distinctive function to perform as Mr Dyantyi had indicated. It was the function of Parliament to determine whether or not they should be restored. That was Parliament’s function and not the President’s function.

Secondly, Mr Selfe added, because during the Nkandla judgement, the Chief Justice was very scathing about Parliament’s inability or failure to exercise its responsibilities and the relevant paragraph in the judgement was paragraph 87 which stated those sections impose responsibilities so important that the National Assembly would be failing in its duty were it to blindly or unquestioningly implement every important Report that comes its way from any institution. Under the circumstances, it was the job of Parliament to properly interrogate, which might involve having submissions from the two Advocates concerned. Even if it were technically unnecessary to do so, the two people concerned proved in the past to be very litigious and even if it was a question of dotting the i’s.

Mr Dyantyi rose on a point of order. He said Members were already on item two on the agenda whereas the agenda stated that at 09h05, Members would be getting a briefing. That kind of debate came after the briefing. He requested Mr Selfe hold the matter, unless the Committee was not getting the briefing and was going straight into the debate.

Mr Selfe stated the was simply reacting to the Chairperson’s request that the parties express themselves on the process to be followed.

Co-Chairperson Magwanishe apologised as the mistake was on his side. The Committees had to hear that briefing and then he would come back to Mr Selfe as the Member was making a substantive point. It was the briefing first.  He apologised to Mr Selfe for his mistake but promised that Mr Selfe would be the first to speak after the item on the briefing.

On a point of order, Mr V Zungula (ATM) asked if it would not be wise to get the records in Hansard of how similar cases were been dealt with in the past. Perhaps that could assist the meeting as to how to go forward. The case of Adv Pikoli, and maybe the case of Adv Simelane, would assist the process.

Co-Chairperson Magwanishe stated that in the first meeting, which Mr Zungula had not attended, the Committees had considered those cases and that was why the Committees had asked the parliamentary Legal Services to compile an opinion. If one looked at the Pikoli matter, it did not recommend removal but in the current case, the Mokgoro Report had recommended removal. In the first meeting, Members had asked Legal Services to come to the joint Committee meeting to advise on the processes so that the Committees could move forward.

Presentation by the Parliamentary Legal Advisor

Adv Siviwe Njikela, Senior Parliamentary Legal Advisor, briefed the Committees. The question raised at the previous meeting was a very simple one: whether the two Committees could sit together in considering the matter.

Legal Services had looked at the Rules of Parliament and the Constitution and was unable to find any legal impediment to prevent the Committees from sitting together. There were no prohibitions to the Committees sitting together. However, there were two qualifications: they were two separate Committees belonging to two different Houses and therefore they were governed by two different set of rules – NCOP Rules and the National Assembly (NA) Rules. Each Committee, although they were sitting jointly, would still have to act within the set of rules that governed that Committee. In other words, each Committee, even if they were sitting together, had to quorate as a separate Committee, not as the joint of the two because it was not a Joint Committee. Matters of public participation and quorum would have to be dealt with in terms of the rules which were applicable to each of the Committees but in law, Legal Services could not find any impediment to the Committees sitting together. As long as the Committees voted separately, passed resolutions separately and reported separately to their respective Houses, it should all be in order.

Co-Chairperson Magwanishe understood the legal advice. He had been co-operating with the Chairperson from the Select Committee, as he had just presumed that was the way things would be.

Both Chairpersons confirmed the NCOP and the NA Committees quorated.

Discussion

Mr W Horn (DA) had a question for the Legal Advisor. He agreed the Committees were from two different Houses of Parliament and suggested there might be constitutional consequences if the two Committees deliberated together because two different decisions could be made in the vote, depending whether the Committees voted together or separately. He asked about the argument that if the two Committees were to meet together, the one Committee might be influenced by the narrative that was prevalent in the other Committee and that there would not be an independent opinion formation for the two different Committees.

Mr S Swart (ACDP) thanked the Legal Advisor for his opinion. Mr Swart needed advice on the Ginwala Inquiry and he seemed to remember the two Houses sat together during the deliberations, but the reports were done separately. But because it was not something that was done often, he thought it was only the second time that the matter was considered. He appreciated that there was nothing in law, but if the two Houses sat together then the Committees might need to follow that precedence. That would give guidance and the precedent set would give legitimacy should anyone contest the matter. He emphasised it was different but references to the Ginwala Inquiry did come up in his reading of the documentation.

Co-Chairperson Magwanishe informed Mr Swart that the Ginwala Inquiry was dealt with by an Ad Hoc Committee. The point raised by Mr Horn needed to be thought through.

Adv Njikela responded to Mr Horn’s concern. The NPA Act spoke about Parliament. That was why in the Ginwala circumstances, an Ad Hoc Committee was established. What was envisaged was a decision of Parliament and in terms of the Constitution, Parliament was composed of two Houses. In all matters in Parliament, even in legislation, a matter would start in one House, depending whether it was a section 75 or section 76 matter, and went to the next House so there was always a possibility of an influence between the two Houses. But that was inherent in the nature of Parliament. South Africa had a multi-party system where political parties had positions, deliberated amongst themselves and made a decision depending on how they had influenced each other in the debate.

Legal Services put the case that regardless of joint deliberations, decisions had to be taken separately in terms of the rules of each House. That was the best that he could do. Decisions had to be taken by the Select Committee through the NCOP and by the Portfolio Committee through the National Assembly. That was what was important, that decisions were taken separately. That did not mean the Portfolio Committee would not take the same decision. The decision-making part should be separate from the consideration of the matter.

Mr H Mohamed (ANC) concurred with the advice received. Mr Horn and Mr Selfe raised the matter of rationality which formed part of various judgements. The rationality that applied was whether Parliament had applied rationality and received reports from both Houses. It was not necessary to go into how the matter was deliberated. Rationality was based on whether it was independently decided in each House. As far as process was concerned, the two Committees would be deliberating, but not making any resolutions, jointly. The processes deliberated jointly would be, firstly, procedural matters, as was happening at that time, and, secondly, substantive matters. The Committees would hear opinions, but the NCOP would go back and deliberate on its decision, as would the NA Committee.

Mr G Michalakis (DA; Free State) stated, with respect, the core function of the NCOP was two-fold: firstly, to represent the provinces in Parliament but, secondly, also as a mechanism for checks and balances against the other House. That was the reason why, on an ordinary day, Portfolio Committees and Select Committees sat separately.  That was the whole function of the Select Committee sitting separately, especially when it was a case of an individual vote and not a mandate from the provinces.

Mr Michalakis respectfully submitted that, if the deliberation, which influenced the decision-making, was held jointly, the decision-making process was influenced and the whole purpose of checks and balances between the two Houses became clouded. Deliberations led to effective decision-making because the decision was based on what was said during deliberations. If the deliberations took place together, then automatically, the two Houses influenced each other in the decision-making. That could surely not be constitutional. It was the function of the Select Committee, not only to represent the provinces, but in the case where Members voted as individuals, it was their job to ensure there was a function of checks and balances.

Mr Michalakis emphasised that deliberations could not take place together.

Mr T Dodovu (ANC, North West) did not know why the Committees were stuck on such a straightforward matter. Sections 57 and 70 of the Constitution provided for Committees to make decisions on how to deal with internal matters. It was an inherent right and there was sufficient consensus for the Committees to meet together for deliberations but to make decisions separately. He did not see how he was going to be influenced by the National Assembly but he would have an opportunity to put his views and discuss them. He implored the Committees to agree on joint deliberations. There was not sufficient time. Parliament had 30 days to deal with the matter and time was running out, and Members needed to close that episode once and for all.

Mr A Shaik Emam (NFP) requested a short adjournment to consult with Members as a consultation might help the House.

Mr Swart said the rules made provision for Joint Committees and secondly, the previous Committee had been a Joint Ad Hoc Committee that had sat together in the Ginwala precedence. Although there was a slight difference with two Committees meeting, it would meet the argument of influence or persuasion. In addition, Parliament could make its own rules. He agreed with the legal advisors that there was no reason in law not to meet together.

Co-Chairperson Magwanishe agreed to a ten-minute adjournment.

Co-Chairperson Magwanishe called the meeting to order and asked Mr Mohamed to make his proposal.

Mr Mohamed said that, having studied the legal opinions and deliberations so far, the ANC proposed Members agreed to the procedure and process that came from the other side of the House. He also proposed the two Advocates be given an audi alteram partem opportunity by sending them a written request giving them an opportunity to, if they so wished, make submissions to the two Committees. Based on the principle that the process was as important as the substantive matters, the ANC proposed the two Committees deliberated separately. Rationality did not preclude people from speaking to each other about the matter as that was how Parliament worked. There was nothing wrong with people talking to one another, and the courts agreed with that principle.

Co-Chairperson Magwanishe stated there was a view that the Committees proceeded to deal with the matter separately. The view was informed by the fact that the country was full of litigious people and the Committees did not want a situation where the decision was challenged on the basis of procedure. The Members would give the Advocates time to make written submission and when Parliament returned from recess, Members would deliberate in two separate Committees. It was better to err on the side of caution.

Mr A Gxoyiya (ANC; Northern Cape) suggested that when the Advocates were invited to make submissions, the Committees should give them no opportunity to introduce new things. They should be confined to the recommendations of the Mokgoro Commission as submitted to the President, as well as the decision of the President. Parliament’s work was cut and dried in terms of focusing on the recommendation of the Commission and the decision of the President. Parliament was not at liberty to consider new evidence. Given that there was not enough time, he proposed allowing the Advocates ten days to make their submissions and, if after ten days the submissions had not been received, the Committees would accept that they did not want to make submissions.

Mr Selfe agreed with the proposals but on the subject of the invitation to make representations, he assumed that Mr Gxoyiya meant ten working days, not ten calendar days. It was quite important to phrase the invitation in terms of the National Prosecuting Act of 1998 section 12(6)(d): “The President shall restore the National Director or Deputy National Director to his or her office if Parliament so resolves” - that is Parliament’s responsibility. The President’s responsibility was to suspend or remove an NPA Director from office. The Advocates should confine themselves to reasons why they should be restored in terms of 12(6)(d). That would cover the matter of the scope of the submissions.

Adv T Mulaudzi (EFF) stated that Mr Selfe had largely covered him on the matter of the invitation. It had to say the Committees were only there to entertain the decision of the President for the Advocates to be removed; not to decide whether to remove or not. The Advocates should submit reasons why they should not be removed and why Parliament should not concur with the President.  The President had also asked the Advocates to write submissions in terms of the audi alteram partem rule. Parliament had to play its part in terms of the Constitution and natural justice.

Adv Mulaudzi had another view - what if, on the day the Committees entertained the representations, the Advocates be invited to answer questions of clarity?

Mr Zungula asked if the Supreme Court of Appeal decision was going to be ignored. Secondly, were the Committees going to determine whether the President’s recommendation was correct in terms of procedure or what? It was his understanding that the two Advocates had already been fired and therefore the Committees were not dealing with a recommendation the President made. He had earlier asked about the case about Adv Vusi Pikoli because in that case, Parliament took a decision and only then had the President acted. The current case was different.

Co-Chairperson Magwanishe said that Mr Zungula’s matters issues were substantive matters that needed to be taken to the next meeting.

Mr Zungula responded that it was about the inputs of the two Advocates - their inputs had to be limited to what the President said, including the Report from the Commission. His first question was whether the Supreme Court of Appeal decision was going to be ignored. The input from a Member was that the Advocates should be limited to only those two things in their submissions.

Mr Dodovu rose on a point of order as the Committees were not deliberating. They were dealing with a specific matter which was that Parliament had to decide whether the President should re-instate the two Advocates. The Chairperson had set out the process. He suggested Members move on otherwise everyone would be debating the matter. He called the meeting to order.

Co-Chairperson Magwanishe explained that Mr Zungula‘s challenge was about the scope of the letter to Adv Jiba and Adv Mrwebi.

Mr Zungula agreed with the Chairperson.

Mr Dyantyi did not want to stay in a meeting unnecessarily. In the previous meeting, Members were dealing with two items. They dealt with many other items previously, with a comprehensive legal opinion. Mr Zungula missed that. It was proper to be consistent and not flip-flop. The matters were attended to. He wanted to firm up: the Committees would be asking the two people for written responses within ten days and he wanted to caution that once one said they must come to come and clarify things, there was an assumption they would be making submissions. The Committees could not be presumptive so the approach was not correct. In the letter it was not even necessary to tell the Advocates not to raise new matters. Mr Selfe had helped. Removal was the President’s job and not the job of Parliament. Parliament was to deal with a potential restoration. As Mr Selfe said, the Advocates should give reasons why they should be restored to their positions.

Mr Zungula replied that when the consideration was done, the Supreme Court had not yet ruled on the matter. It was something that had to be considered by the Committees.

Co-Chairperson Magwanishe, noting the Supreme Court had ruled on many things, asked Mr Zungula to be specific about the case he was referring to.

Mr Swart said Mr Zungula was referring to the General Council of the Bar of South Africa case brought to the Supreme Court by Adv Jiba and Adv Mrwebi, dealing with ‘fit and proper’. That matter was dealt with extensively in the documentation and representations made to the President, so Mr Zungula’s concerns were covered. Mr Swart promised to give Mr Zungula the legal opinion provided at the previous meeting. He commented that it was not easy for smaller parties to attend all meetings.

Co-Chairperson Magwanishe asked if that would take care of Mr Zungula’s concerns.

Mr Zungula agreed that it would.

Co-Chairperson Magwanishe said, to sum up, the Committee would give the Advocates ten working days to make representations on why they should be restored to the NPA by Parliament and that representations to the NA and NCOP had to be made separately. The NA and NCOP would meet separately to consider all documentation, including their representations.

Co-Chairperson Magwanishe wanted to make sure all Members had all documents. He asked the Secretary to name all the documents while Members should confirm they had the documentation. Members had to have applied themselves to all documents.

He noted the only document outstanding would be further representations by the Advocates on being restored to the NPA, but that would depend on whether they chose to make representations.

Ms W Newhoudt–Druchen (ANC) asked that the list of documents be read slowly so that she could watch her interpreter and then check that she had the documents.

The Chairperson repeated his previous remarks slowly.

Mr Swart confirmed the Advocates would be given ten working days.

Co-Chairperson Magwanishe stated that after the parliamentary recess, the first item to be dealt with was the matter of the two Advocates.

The Committee Secretary read out the list of required documentation:

-The decision to remove Adv Nomgcobo Jiba and Adv Lawrence Sithembiso Mrwebi from their positions in the NPA which includes the reason thereof (two separate letters to Adv Jiba and Adv Mrwebi dated 25 April 2019)

-Unabridged version of the Report of the Panel

-Abridged version of the Report of the Panel (the abridged version was compiled to make a more easily consumed version)

-Submissions made by both Advocates in response to the Report. Adv Jiba added annexures to her submission (Refer to Annexure A attached)

The Secretary added that the National Assembly had handed out and emailed all documents.

Mr Horn informed the Chairperson that in the documents received from the NA, only the letter of the President to Adv Jiba was included and not the letter to Adv Mrwebi. He asked that it be sort out.

Co-Chairperson Magwanishe stated that by the following Tuesday all documentation should have been sent to all Members. He instructed the Secretary to create new files with all the documentation and he requested Members contact the secretariat if documents were missing. A checklist of all documentation should be attached to Members’ files.

Mr Dyantyi requested that all Alternate Members received copies of the documentation, even if they did not attend the meeting.

Co-Chairperson Magwanishe agreed that all Members of the Committees, including Alternate Members, had to receive documentation

Mr Swart suggested it was not necessary to re-print all the documents again – it was a voluminous file. He suggested that just the missing document be added to the documentation. Members could check their own documentation. One needed to save paper and trees.

Mr Mohamed agreed with Swart that one should not waste resources. The index would help as Members could go through the index to check they had all documents.

Ms Newhoudt-Druchen was covered by Mr Mohamed. She requested an index.

Co-Chairperson Magwanishe asked the secretariat to read out the list again.

Co-Chairperson Shaik stated that all NCOP Members had the documentation. It was an administrative process and the Committee did not need to deal with that in the meeting. A checklist should be handed out.

Co-Chairperson Magwanishe stated that it might sound tedious and unnecessary but it had to be done.

The Secretary reread the list of documents, adding the documents sent to him by the Table staff did not include the letter from the President to Adv Mrwebi. He would forward that to Members.

Co-Chairperson Magwanishe noted the letter had to be circulated.

Co-Chairperson Shaik requested the two pieces of legal advice be added to the documentation.

Co-Chairperson Magwanishe agreed and suggested the Portfolio Committee meet on 20 August 2019 to start the process of deliberations as the submissions would have been made by that date and Parliament would have returned from recess. On 20 August 2019, the Committee would start with deliberations.

Co-Chairperson Shaik informed the meeting that the NCOP Select Committee would meet on 21 August 2019.

Co-Chairperson Magwanishe indicated that the agenda for the joint meeting was adjourned but he requested NA Members to remain.

The Portfolio Committee on Justice and Correctional Services continued the meeting.

Committee business

The Chairperson stated that all Members would be aware of the My Vote Counts case. It had a deadline and all legislation had to be passed by 20 December 2019. There was not adequate time so it was suggested that Parliament not wait for the Executive processes as that would take a lot of time. It was suggested the Committee process the matter as a Committee Bill. If the Committee agreed, it would have to seek permission of the National Assembly to draft a Committee Bill so that the Committee could begin the process.

Mr Swart stated that he raised the matter in one of the debates about the delays in meeting court deadlines. He also raised the matter in the Chief Whips Forum and in the Programming Committee so Parliament was aware of the matter. It was suggested the Leader of Government Business look into the matter. He fully supported the fact that the matter should become a Committee Bill as time was running out fast and Members did not want to be in a situation where the Executive had to apply for an extension, given that in the past, the Constitutional Court refused such extensions where the Departments had not done enough. Further, the Court order would be given against Parliament, not the Executive. It might well be that Parliament would have to manage the processes. He supported the Chairperson’s recommendation.       

The Chairperson noted the Committee agreed to manage the My Vote Counts matter as a Committee Bill.

The Chairperson reminded Members that in the first meeting, he agreed to present a programme to the Committee but it would be difficult for the Committee to meet the next week so he suggested circulating a draft programme and adopting it in the first meeting after the recess.

Mr Swart raised the matter of two other judgements that required action. The NPA matter had to be finalised by January/February 2020 and Parliament rose in November 2019. The Correctional Services judgement also needed to be attended to. The Committee had to check whether there were any other judgements.

The Chairperson stated that it went to the core of the programme. There was also the matter of the Deputy Public Protector leaving office thisyear and a replacement needing to be appointed. In the first week after recess, the secretariat would have circulated programme and the Committee would meet to adopt or amend the programme.

Mr Selfe he hoped the programme would provide time for an oversight programme into Correctional Services facilities. As he said in the debate, the Committee had a habit of getting tied up with legislation. The oversight functions which took a long time were overlooked.

The Chairperson suggested that once the Committee had completed the Adv Jiba and Adv Mrwebi matter, the Committee should spend a whole day on the programme, looking at those matters, and look at sub-committees. The Committee needed to heighten its oversight of both the Departments of Justice and Constitutional Development and Correctional Services. The Committee needed to plan properly.

Mr Dyantyi supported the proposal.

The meeting was adjourned