Adv Jiba’s court application to interdict Parliament; Deputy Public Protector Appointment Process; Correctional Services Sub-Committee

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Justice and Correctional Services

20 August 2019
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

The Committee Chairperson reminded Members that the Committee had agreed to give Adv Nomgcobo Jiba and Adv Lawrence Mrwebi 10 working days to make representations to Parliament as to why they should be restored to office. Adv Mrwebi had responded but Adv Jiba had not responded and had taken the matter to court.
 
Adv Jiba and her attorney had requested Parliament to stay its processes as they believed that the sub judice rule had become applicable in the matter of section 12 of the National Prosecuting Act as dealt with in Adv Jiba’s application to court. Parliament had disagreed with the invocation of the sub judice rule and stated that it was undertaking a statutory process which had to be completed within a particular time period. It was not within the discretion of Parliament to stop the process.
 
Consequently, Parliament had been served with an urgent application on behalf of Adv Jiba. The application sought to interdict the parliamentary process of determining whether or not to re-instate Adv Jiba pending the finalisation of Part A and Part B of her review application against the President and the Mokgoro Commission.
 
Given the fact that Parliament was in a position where it had to adjudicate, or oversee, an Executive action that was already the subject matter of litigation, it was decided that Parliament should not enter the fray so to preserve the integrity of its process. Parliament would file a notice to abide by the decision of the courts regarding Part A of the urgent application and to file an Explanatory Affidavit. The matter had been set down for the following day, Wednesday 21 August 2019.
 
Part B of Adv Jiba’s application to the courts contained a constitutional attack on section 12 of the National Prosecuting Authority Act. The basis for her attack was that section 12 prescribed a simple majority in Parliament for the removal of a Director from the National Prosecuting Authority whereas removal from other similar institutions, such as the Public Protector, required a two-thirds majority. Adv Jiba believed that National Prosecuting Authority was not sufficiently insulated from attacks by other organs of state.
 
The ANC whip moved that the Committee should await the outcome of the court process because whatever work it did that day would have a direct material impact on the outcome the following day. Given that the proceedings were to be held the following day, he did not think that Parliament would be prejudiced if the Committee held on until the outcome was known.
 
Other Members were concerned that Parliament had a pre-emptory responsibility in terms of section 12 of the National Prosecuting Authority Act and the Committee was not fulfilling its responsibilities by abiding by the application. Another Member was concerned that the decision to abide by  the outcome would also apply to Part B. There was a suggestion that the Committee consider continuing with the deliberations on Adv Mrwebi’s representations.
 
The Committee resolved that it would stay the matters of Adv Jiba and Adv Mrwebi and wait for the court proceedings the following day to provide guidance.
 
The Secretary informed the Committee that there had been a referral from the Speaker requiring the Committee to start the process to appoint a new Deputy Public Protector, given that the current Deputy Public Protector’s term of office would expire in December 2019. The process would be included in the Committee programme.
 
A Sub-Committee to focus on Correctional Services was formed because the Committee was unable to give sufficient attention to issues relating to Correctional Services. The Sub-Committee would meet on Fridays and make proposals to the full Committee the following Tuesdays.
 

Meeting report

Opening remarks
The Chairperson apologised for the delayed start. He explained that the Legal Advisor had first briefed the National Council of Provinces Select Committee on Security and Justice but was ready to brief the Committee on the issues relating to Adv Nomgcobo Jiba and the court application.
 
The Chairperson welcomed everyone to the meeting. He made a slight amendment to the Agenda which was a rearrangement of the items to be discussed so that the meeting would commence with the Legal Advisor’s presentation. 
 
In a brief re-cap of the last meeting, the Chairperson noted that the Committee had agreed to give Adv Jiba and Adv Lawrence Mrwebi 10 working days to make representations to Parliament as to why they should be restored to office. A file had been circulated to Members during the recess. Adv Mrwebi had responded but Adv Jiba had not responded and had taken the matter to court. He had asked a member of the Legal Services to brief the Committee about those developments.
 
Presentation by the Parliamentary Legal Services
Application for a stay by Adv Jiba
Mr Siviwe Njikela, Senior Legal Advisor, Parliamentary Constitutional and Legal Services Office (CLSO), stated that on 8 August 2019, his office had received notification of an application by Adv Jiba. Parliament was served separately and cited as the Fourth Respondent in the matter. The First Respondent was the President, the Second Respondent was the National Director of Public Prosecutions, and the Third Respondent was the Mokgoro Commission.
 
Parliament had also received a letter from Adv Jiba’s attorney, Mr Majavu, addressed to the Speaker informing her that Adv Jiba had decided to proceed with an application before the Western Cape High Court for the review of the decision by the President and the Mokgoro findings. In that letter it was indicated that, in view of Adv Jiba and her attorney, the sub judice rule had become applicable and so Parliament should stay its processes in the matter according to section 12 of the National Prosecuting Act. Parliament had responded to the letter, raising a number of issues. Firstly, CLSO had stated that when Parliament had initiated the process, there had been no pending application and therefore it was within the rights of Parliament to comply with the statutory provision. Secondly, Parliament disagreed, on that basis, with the invocation of the sub judice rule and, lastly, CLSO  had indicated that Parliament was undertaking a statutory process and it was not within the discretion of Parliament to simply stop the process as it was required to undertake the process within  a particular period of time, or within a reasonable time if there were circumstances that prevented that. CLSO had sent its response in a letter via the State Attorney.
 
Adv Jiba and her attorney had informed Parliament that they intended to file an urgent application to stay the processes of Parliament and they requested the dates on which Parliament would start the consideration of the issue. That was provided. The previous afternoon, Parliament had been served with the application on behalf of Adv Jiba. The application in essence sought to interdict the parliamentary process pending the finalisation of Part A and Part B of her review application against the President and the Mokgoro Commission.
 
Parliament was required, in terms of the process, to file its notice to oppose, and its affidavit, by 11:00 on 20 August 2019.  
 
Mr Njikela informed that his colleague was consulting in order to put something together in response for the court, even as he spoke. After a number of discussions between CLSO and the Speaker’s Office, and given that Parliament was in a position where it had to adjudicate, or oversee, the Executive action, which was already the subject matter of litigation already, it was concluded that Parliament ought not to enter the fray in order to preserve the integrity of the process that it would still have to take at the end of all the litigation. It was decided that Parliament should file a notice to abide and file an Explanatory Affidavit before court explaining the processes that Parliament had undertaken and what had triggered those processes, and leave the matter in the hands of the court to decide if it agreed with the submission.  
 
Parliament was in the process of consulting and putting together the explanatory affidavit which would be filed by 11:00 that day. On the following day, Wednesday 21 August 2019, Parliament would appear in court and, hopefully, the Portfolio and Select Committees would then be in a better position to know what had to happen going forward. Briefly, those were the key points as far as the litigation was concerned.
 
Mr Njikela added that that morning his office had received another letter from Adv Mwerbi. Adv Mrwebi had complied with the timeframes for submitting his representations but, according to his letter, he had become aware of the litigation and the interdict by Adv Jiba and felt that the issues that Adv Jiba was raising with the court were similar to the issues that he was raising in his representation  and he was of the view that it might be fair that the Committee did not proceed in respect of his submission until the matter had been finalised.
 
Mr Njikela stated that he had tabled all the information for the Committee to consider when it made its decision. Court would commence the following day at 10:00 and he believed that Parliament would hear within the hour whether the interdict had been granted or not. That was the status at that time.
 
The Chairperson requested Mr Njikela to speak about the constitutional challenges in section 12 and the majority required to remove a National Deputy Prosecutor (NDP) of the National Prosecuting Authority (NPA).
 
Consideration of section 12 of the NPA Act
Mr Njikela explained that in Adv Jiba’s application to review the findings of the President and the Mokgoro Commission, she sought, in Part A, firstly, to set aside the decision of the President, secondly, a reinstatement into her position, (pending Part B which was the main review), and thirdly, a stay of the proceedings of Parliament. 

When one went to Part B of her application, there was a constitutional attack on section 12 of the NPA Act which was the trigger for that process. The basis for her attack was that section 12 prescribed a simple majority for her removal when with other similar institutions a two-thirds majority was required. She believed that an NDP or the NPA was not sufficiently insulated from attacks by other organs of state. There should be a similar protection for the NPA.
 
He reminded the Committee that that concern about the simple majority came from as far back as the Certification Judgement when the Constitutional Court had to certify the Constitution. The issue had arisen at the time. The Constitutional Court had disagreed with the simple majority for dismissing the Public Protector and hence a two-thirds majority was required to dismiss the Public Protector. He believed that Adv Jiba was riding on the Certification Judgement and believed that the same protection might be applicable to the NPA.
 
Discussion
The Chairperson added that Adv Jiba was also raising a question about legal representation in the parliamentary process, meaning that if the court agreed with her, she would be permitted legal assistance to make representations to the Committee.
 
The Chairperson asked for comments from Members.
 
Adv H Mohamed (ANC) thanked the legal advisor for the interpretation and for the legal documents supplied to Committee Members so that they could apply their minds to the matter at hand. With regards to the section 12 matter and the simple majority as opposed to a two-thirds majority, it was a matter for interpretation and decision. If it were challenged in court, he was sure that the court would ventilate on that matter.
 
Adv Mohamed stated that what was important to the Committee was the application to interdict the processes that Parliament was about to start. The application would only be heard the following day and so legally speaking, there was nothing to stop the proceedings in Parliament on that day. However, the application had been lodged the previous day and if one took into account the timeframe that the matter would be heard within 24 hours, he moved that the Committee adhere to the principle that it await the outcome for the simple reason that whatever work was done that day would have a direct material impact on the outcome the following day. Given that the proceedings were to be held the following day, he did not think that Parliament would be prejudiced if the Committee held on until the outcome was known. He rose on the matter himself, and also made the proposal on behalf of the ANC, that the Committee hold off.
 
Mr J Selfe (DA) gathered from the briefing that the intention was to abide the decision, but the Committee needed to think the matter through. The application could be heard and finalised the following day, but it could take longer. Parliament had a pre-emptory responsibility in terms of section 12 of the NPA Act to do certain things and he was a bit worried that the Committee was not fulfilling its responsibilities in abiding by the application on the assumption that the application would not be granted. He would like some more in-depth reasoning behind the decision, which had apparently been taken, to abide the outcome.
 
Adv S Swart (ACDP) thanked the Legal Advisor for the advice. He also required more clarity, although he did not disagree with Adv Mohamed. There were two issues. The following day was the urgent application and the test would be on the balance of convenience: whether the process of Parliament was stayed or not. But, surely the decision to abide the outcome could not also apply to Part B which would go to the constitutionality of the majority required to remove the NDP in terms of the Act. That had been canvassed in the constitutional Certification Judgement and no issue was debated at that stage relating to the NPA. He had been involved in that process so he would have remembered if it had been an issue as it would have been canvassed. Parliament needed to oppose that part as well and not just abide by the second part. He understood that it was very urgent and normally only the urgency would be decided at the first hearing.
 
Adv Swart agreed with Adv Mohammed to abide by the court ruling of whether or not to stay the process. Parliament could not abide by Part B because it would have to wait for a decision on section12 and that could go on for years. The statutory provision would constrain Parliament. That would fly in the face of the rationale of the Act which was the need to deal with the matter expeditiously. He required an explanation about the two different parts of the litigation.
 
Mr W Horn (DA) agreed with the concerns of both Mr Selfe and Adv Swart but he wanted to address the pending process of Adv Mrwebi. Obviously, Members had not had the benefit of the application and the founding affidavit until they had arrived at the meeting. He had quickly perused them and, on a very quick reading, unlike what Adv Mrwebi stated in his letter, the only overlapping issue of commonality was the President removing him from office with finality pending the section 12 processes which he raised in his representations to Parliament, which was also the founding affidavit by Adv Jiba. The other issues which she was raising were not to be found in Adv Mrwebi’s representations. That was a separate process and he suggested that the Committee seriously consider continuing with the deliberations on Adv Mrwebi’s representations.
 
Mr Njikela understood Adv Mohamed to be making a comment that did not call for an answer. He responded to Mr Selfe in respect of the pre-emptory conditions that Parliament had to comply with. Everyone could agree that those provisions were pre-emptory and the intention in the Act was that it had to be fulfilled as quickly as is possible. That was why CLSO had indicated to Adv Jiba and her advocate that unless there was a matter in court, Parliament could not, on the basis of their request, stop the process. That would mean that Parliament was abdicating its responsibility. Rule 89 dealt with matters pending before court. It had to be noted that it was an urgent application. Originally, Parliament had said that an application with no timeframes was insufficient and if Adv Jiba wanted to stop Parliament, there would have to be an urgent application where the matter could be resolved on an urgent basis so that everyone knew how to proceed from there. In that specific instance, Adv Jiba had applied for an urgent application. Parliament could go ahead with the process but, given the views that were being ventilated in court, he did not recommend that Parliament go ahead with something that could be stopped the next day or interdicted the following week. It would appear that Parliament had not employed resources efficiently. However, that decision was in the hands of the Committee.
 
In response to Adv Swart’s query, Mr Njikela stated that the abiding part related to the urgent interdict of the following day.
 
Adv Swart commented that the advice was wise. Parliament did not want to be seen to be in contempt of any process of court as it could later be found to be deficient in terms of legal provisions. He had heard the Chairperson mention that he had debated the issue with the Speaker, but, even while Parliament abided on the issue of urgency, he noted that the applicants had had a long time to go to court. He suggested that an argument could be made out by Parliament that it was not urgent as Adv Jiba and Adv Mrwebi had had enough time to go to court. However, he believed that on a question of convenience, the court might side with Adv Jiba. He was pleased that the Legal Advisors might consider challenging the second part. He agreed with the approach suggested by Legal Services.
 
Ms N Maseko-Jele (ANC) added her voice in appreciating and thanking the legal team. She agreed that the Committee should wait until the Court had given a ruling the following day.
 
The Chairperson welcomed the Chief Whip of the Majority Party, Ms P Madojina to the meeting.
 
Adv Mohamed responded to Mr Horn’s comment on Adv Mrwebi. He did not believe that the Committee could divorce the two applications, not because Adv Mrwebi had said that his application constituted the same matters as Adv Jiba, but because the two matters that the Committee was considering were under the same law and so whether the application was similar or not did not matter. The fact was that there was an application on the issue that affected the Committee directly.
 
On Part B, Adv Mohamed believed that the Legal Advisor had clarified the matter. Abiding by the court did not raise the issue about them having had sufficient time but the Committee should abide by the court decision. However, Parliament could give the ratio decidendi on that.
 
Resolution
The Chairperson stated that the Committee agreed that it waited for the court proceedings the following day so that it could get guidance. The Committee would stay the matters of Advocates Jiba and Mrwebi and wait for the court judgement. He would inform the Committee of the next meeting, depending on the outcome of the application.
 
Appointment of the Deputy Public Protector
The Chairperson requested the Committee Secretary to brief the Committee on the appointment process of the Deputy Public Protector (DPP).
 
The Committee Secretary did not intend to brief the Committee on the process to be followed. That could be discussed at a later stage. He wished to inform the Committee that there was a referral from the Speaker requiring the Committee to start the process to appoint the Deputy Public Protector, given that the current DPP’s term would expire in December 2019. The Committee needed to discuss the matter and inform the secretariat of what it wanted done. The Committee might at some stage want the Content Advisor to take the Committee through some of the issues.
    
The Chairperson reminded Members that that item was linked to the draft programme and whatever decisions the Committee made about the process should be included in the programme. The draft programme had been circulated on 29 July 2019. He explained that the court decision the following day would impact on the programme, as would the appointment process for the DPP. That process would need advertisements, a committee to sift through the names and it would need interviews as well as a report to the House. What he was asking for was an opportunity to re-work the draft programme, which would then be submitted at the next meeting.
 
Adv Mohammed asked if he was correct in understanding that the decision in court the following day would affect the programme and the matter of the whole process of recruitment could be brought forward if there were implications for the programme in the court’s decision.
 
The Chairperson stated that the following day’s judgement would give an indication of what the programme would look like. When the draft programme had been drawn up, the matter of the DPP had not yet been referred to the Committee, but now that it had been referred, it had to be included in the programme. By the next meeting, everything would have been factored into the programme so that it could be adopted.
 
Mr Selfe said that everyone assumed there would be a judgement the following day, but, unless the matter was struck off the roll for matter of urgency or whatever, he did not think there would be a judgement. Where would that leave the Committee?
 
Adv Mohamed said that depending on the judgement, the Committee might have time available and, instead of using recess time, the Committee should use the time at its disposal to deal with the appointment. If the matter was deferred, then the Committee should start the appointment process.
 
Ms Maseko-Jele said that the judgement of the court did not impact on the issue of the DPP. The appointment process was also important and should not be delayed, no matter what happened the following day. She thought that the Chairperson was simply alerting the Committee to the fact that the programme had to be adjusted as the matter of the appointment had to be done and done in time. That was what she was hearing from the Chairperson.
 
The Chairperson explained that, that as he had said earlier, when the draft agenda had been circulated, the appointment process had not yet been referred and so had not been included, but it had a deadline of the end of the term. The programme would be adjusted accordingly. He took Mr Selfe’s point and said that after the events of the following day, regardless of the decision, the Committee would meet, possibly even on the Friday of that week, to reflect on what had happened and to take the matter forward.
 
Correctional Services Sub-Committee
The Chairperson reminded Members that the Committee had taken a decision to form a Sub-Committee to focus on Correctional Services because the Committee had not given sufficient attention to Correctional Services in the Fifth Parliament. The ANC had nominated Mr Q Dyantyi (ANC) to chair the Sub-Committee. The Chairperson requested the parties represented on the Committee to submit names for the Sub-Committee. The Sub-Committee would not have original powers; those remained with the Committee that was recognised by Parliament. However, it would process issues of Correctional Services and make recommendations regarding those issues to the Committee. The Sub-Committee would look at issues such as overcrowding in Correctional Services facilities. He requested the names by Friday so that the Sub-Committee could begin its work.
 
Mr Horn asked if the Sub-Committee would sit in addition to the main Committee or whether the idea was to split the Committee and have two Sub-Committees, one for each of the Departments.
 
The Chairperson said that he proposed that the Sub-Committee would meet on Fridays and make proposals to the full Committee, which would meet on Tuesdays and Wednesdays. On Tuesdays, the Committee would take a briefing from the Sub-Committee.
 
Adv Swart confirmed that the Committee was not being split and that there would not be a Sub-Committee for Justice. He assumed that the briefing by Correctional Services would be to the whole Committee.
 
The Chairperson confirmed that there would be no further Sub-Committees as he was mindful of the difficulties Sub-Committees would impose on the smaller parties.
 
Mr X Nqola (ANC) supported the idea of a Sub-Committee as the Committee had identified complex issues during the budget process and the Committee needed not only to pay more attention to Correctional Services, and also to conduct site visits.
 
The Chairperson noted that that brought the Committee to the end and that the Secretary would inform the Members as to when the next meeting would be held.
 
The meeting was adjourned.
 

 

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