Deputy Public Protector position: Criteria for shortlisting of candidates; Promotion of Access to Information Amendment Bill: response to submissions

Meeting report

Opening remarks

The Chairperson welcomed Members and the delegation from the Department of Justice and Correctional Services.

Adv G Breytenbach (DA) offered apologies for Mr Selfe who had had an operation and had since been confined to home by his doctor.

The Chairperson sent his prayers for a speedy recovery.

SIU Matter

The Chairperson informed Members he had received lots of letters of complaint about Adv Mothibi, Head of SIU, after the appearance of the Special Investigating Unit (SIU) before Parliament the previous week. He had circulated copies to the Members. He proposed that the matter be referred to the Minister to investigate and to report urgently with an update when Parliament opened in the new year. The SIU was important in the fight against crime and could not be destabilised.

Adv H Mohamed (ANC) endorsed the proposal. The SIU knew that it was accountable to the Minister and so it was procedurally correct to refer the matter to the Minister.

Mr X Nqola (ANC) seconded the proposal. He stated that the matter regarding Adv Mothibi had been ongoing for some time.

Adv S Swart (ACDP) supported the recommendation and the sentiment expressed by the Chairperson, especially in the light of the fact that the Tribunal would commence work soon and could not be tainted by events at the SIU.

Adv T Mulaudzi (EFF) supported the proposal in the light of the allegations regarding the abuse of women. He said that Adv Mothibi had lied to Parliament in his presentation. He had to account to the Minister. The Secretary of the Committee had to respond to those who had sent messages so that they could see that Parliament was taking action or they would approach the Speaker.

Adv Breytenbach supported the suggestion and recommended that Adv Mothibi be informed of the process to be followed.

Ms N Maseko-Jele (ANC) supported the action. The timeframe was important and there had to be a response to complainants. She stated that the Minister had to start working immediately. She suggested that the Minister respond to the letters and say that action was being taken.

The Chairperson thanked the Committee for the guidance and support. The Committee would await feedback from the Minister in the first week after the recess in 2020.

Criteria for the Appointment of a Deputy Public Protector

Ms Christine Silkstone, Committee Content Adviser, informed the Committee that she had been requested to draw up a document on the criteria for the appointment of a Deputy Public Protector (DPP). Applications or nominations for the position had been received from 26 candidates but three had withdrawn.

Ms Silkstone stated that the Act set out the criteria for qualification as a DPP. The person recommended for appointment as Deputy Public Protector must be a South African citizen, who is a fit and proper person to hold such office, and who –

• Is admitted as advocate or an attorney and has, for a cumulative period of at least 10 years after having been so admitted, practised as an advocate or an attorney; or
• Is qualified to be admitted as an advocate or an attorney and has, for a cumulative period of at least 10 years after having so qualified, lectured in law at a university; or
• Has specialized knowledge of or experience, for a cumulative period of at least 10 years, in the administration of justice, public administration or public finance; or
• Has, for a cumulative period of at least 10 years, been a member of Parliament; or
• Has acquired any combination of experience mentioned in paragraphs (a) to (d), for a cumulative period of at least 10 years.

Ms Silkstone added that the 10 years’ experience did not have to be a single period but could be cumulative. She added that Corruption Watch had done a useful survey during the period that applications were on the website for public comment. The survey was random but Corruption Watch was not claiming to be demographically representative. The organisation had also done a survey during the appointment process for the Public Protector in 2016, which had proved to be very useful.

The online survey on the DPP applications had 359 respondents. The views of the respondents were as follows:

Qualifications:

74% ranked practice as an attorney or advocate as most important.

69% ranked specialized knowledge of or experience, for a cumulative period of at least 10 years, in the administration of justice, public administration or public finance as also very important.

60% of respondents ranked being an MP as the least important qualification, as had been the case in the PP survey of 2016

Experience:

75% ranked adequate legal experience as important.

71% ranked extensive investigative as important

57% ranked social justice experience as essential.

Skills & Values

Skills: investigative, analytical, communication, leadership

Values: integrity, accountability, respect for the rule of law, objectivity, independent

It had to be remembered that the DPP would act as PP when she was not available or should her office be vacant. The courts described the PP as independent, impartial, capable of exercising power without fear, favour or prejudice, courageous, vigilant, have conviction of purpose, proactive, open-minded, dignified, person of stature, suitably qualified and an anti-corruption champion. Quite a lot was expected of the person.

The Content Advisor presented a matrix containing the points made. Character/Experience/Knowledge/Skills

She added a few points beyond the essentials that Members could ask the candidates about:

• Values
• Passion, motivation
• Knowledge
• Technically experienced
• Skills
• Values and needs of society.

The Chairperson thanked the Content Advisor and called for comments.

Discussion

Adv Mohamed appreciated the work done by the secretariat. He noted that the person had to be fit and proper as per section 22(a)(4) of the Public Protector Act. Before he went into detail regarding the criteria, he had some questions around applications received. 29 applications or nominations had been received. How many of those qualified for the post in terms of the advertisement? Was there anything for the Committee to consider as far as that was concerned? There was a number of essential qualifications that the Committee had to look at. Issues that the Committee needed to look at included skills, experience and so on. Taking into account the minimum standards set by court judgements when elaborating on the bare essentials a PP should have when it came to values as they all knew that the DPP could act for the PP. There were also particular acts that the DPP was required to perform on a daily basis.

Adv Mohammed supported the criteria presented by the Content Advisor, especially the experience, knowledge and skills. Later he would look at the numbers. He suggested that, at that meeting, the Committee should decide on the criteria, the number of candidates to be shortlisted, the type of interviews to be held, i.e. structured/unstructured and the number of days for interviewing, the vetting process by the State Security Agency (SSA) and set dates for the interviews. He recalled that the shortlisting would take place the following day.

Ms Maseko-Jele welcomed the presentation and the work done by the secretariat. She noted that there were 29 applicants. In line with the proposal by Adv Mohammed, the vetting should start from the beginning, with all who qualified so that they did not waste time. Everyone had to be vetted.

She added that, on the issue of the work of DPP as acting PP, she was not sure if she was asking too much but perhaps the Committee should formalise the delegated work to be given to the DPP. She did not think it proper that the DPP would only work when the PP was not there and when she gave him daily work. Maybe the Committee could be given insight into the delegations that he would receive on a daily basis. Perhaps the Committee could at least address the core issues so that he was active on a daily basis, even when the PP was around.

Mr Nqola reminded the Committee that it was making decisions on a matter that had attracted public interest which was why the Committee had opened the matter to the public. The report said that some applicants had withdrawn and six candidates did not qualify in terms of the basic qualifications. The names of applicants had been made known to the public for access and comment. He wondered if the Committee should inform the public of those that had withdrawn and those that did not qualify. He was not sure but was subject to advice from the Committee.

He thought that the work done by the secretariat should be in the form of a document to help Members to select from those who had applied. There were a number of features that had been mentioned regarding what kind of DPP was needed in SA and so what had been mentioned was the measuring tool. To use time appropriately, he did not think that every applicant had to be vetted but only those who had been selected for the interviews. If the Committee had to await the vetting report, it would hold up the interviews. It had to be noted that the Committee was running out of time and was under pressure of time because the DPP’s term expired in 30 days.

Mr W Horn (DA) thanked the staff for the presentation but one needed to go further than simply the basic criteria in the Act. The aim was to give the PP a person who should be able to understand the role and function of the Office. Considering the times that one lived in, having the necessary qualifications and experience, did not mean that the person would understand the role and functions of the Office so he suggested that the Committee add, as a separate criteria for those to be shortlisted, that the preferred candidate should have a proper understanding of the role and function of the Office. He added that one would expect someone with 10 years’ experience to have the investigative and analytical capacity and also an ability to interpret the law and to apply it to a situation. In addition to the understanding of the role and functions of the office, that was something to be zoomed into in the interviews. The Committee could not simply accept that 10 years’ experience and an LLB degree meant that the person had those skills.

Mr Horn added that the Committee had to have a proper understanding of what was meant by vetting. For example, during the preparations for the PP interviews, the ad hoc Committee was given a letter indicating that the current DPP did not qualify for top security clearance. He pointed out that Corruption Watch had done a lot of vetting to find out if people were truthful and if other candidates should be taken into account. The Committee needed to know whether the DPP had to qualify for top secret security clearance. It was not in the Act that the DPP had to have top security clearance. The mandate of the PP, to deal with maladministration, was not a top security issue. Maladministration should not be impacted on by a security clearance. He did not see why one had to have security clearance. Was it required? He knew that the PP had said that her Deputy could not be involved in high profile issues because he did not have a top security clearance. He was not convinced and so the Committee should be properly advised about the need for a security clearance.

Adv Mulaudzi thanked the secretariat for the criteria. Section 24(4) talked about having 10 years’ experience of the above. How many of the applicants qualified in respect of the criteria?  The secretariat said it was unclear whether the conditions had been met by one candidate. Why was it unclear? What was meant by that?

The Chairperson asked Mr Horn how the selection panel would go about checking whether a candidate had the ability to interpret the law according to a specific set of facts.

Mr Horn said that he was suggesting that it was something to be added to the criteria and had to be canvassed during the interviews. The Committee could even ask the candidates to prepare to address the panel on how their investigative skills and experiences had played out in the past and how they had applied the facts of the law. 

Adv Mohamed supported Mr Horn’s proposal that the Act did not state that the DPP had to have top security clearance. He reminded the Committee that public interest and national interest was very important in the functions of the PP and DPP. But functionality was largely investigative and certain functions were delegated on a daily basis. People had to have confidence that their submissions should be handled with decorum and protecting their dignity and that should not be confused with the transparent process of a particular investigation or finding of an investigation. An office of investigation required vetting and that should be stipulated.

Adv Breytenbach stated that the Act was very clear that top security clearance was not needed. In the normal course of the PP’s work, there should be no issues of top secrecy but in the extraordinary set of circumstances which the country found itself in at the moment where the government had stolen the country blind, things might be different. The PP investigates for the people. Everyone knew that the State Security Agency (SSA)was way behind in its vetting. A check of how many people in the PPSA had been vetted would show that many had never been vetted. SAPS officials dealing with highly sensitive matters did not have security clearance and she knew for a fact that many public protectors did not have clearance or it had lapsed. She was not sure how the Committee was going to rely on the SSA.  The SSA had a reputation that had been ruined so she wondered why anyone even trusted them. If the Committee wanted top security clearance before interviewing anyone, they could postpone the interviews for ten years while the SSA got their house in order and caught up with the backlog. She did not see how it was going to be done. In addition, there was no requirement in law for a top security clearance and it was not in the Committee’s competence to impose additional requirements.

Mr Horn did not want to make too much of the issue but he was concerned about Adv Mohamed’s use of words like “public interest” and “national interest” being used in relation to the whole exercise and the appointment of the DPP. Obviously, the public had a direct interest in dealing with corruption and the rooting out of maladministration, which was the core function of the PP, along with policing the Executive Ethics Act, which was not unrelated. He urged that the Committee be careful not to read into the PP that the Office had to protect a “national interest”. That would seriously erode what should be the duty of the PP.

Mr Nqola said that what had been discussed was the delegation of functions to the DPP and that would indicate whether to vet or not to vet, but, although the statute was silent on the matter, vetting had to be done for public interest and that did not impose a criteria or contravene any Act. He unequivocally moved that all those shortlisted be subject to vetting.

There was also the issue of the ability to interpret and apply the law. He agreed with the point but it was problematic. It was putting too much emphasis on a criterion that was not one of the required criteria because one did not need to have experience in law. It was unfair to suggest a test that an advocate could do but a social activist could not. He was following up the point of how one was able to check that criteria.

Ms Maseko-Jele said she was covered by Mr Nqola but pointed out that the DA was the first to shout if someone was hired and later found to have some skeletons, but when the Committee wanted to do everything right, the DA Members did not want to allow that. The Committee did not want to find out afterwards that the person had corruption in his/her background.  She did not want to come back and waste time trying to remove someone because of his/her past corrupt activity. It had been decided that everyone working in the public service had to be vetted. She insisted that the candidates be vetted regardless of the time it took.

Adv Mulaudzi said that the House was divided. He proposed that the Committee follow the law. If it was important to vet, it had to be put in the law. The Committee could do something that was not in the law but someone could ask according to which law one was vetting. It is a common sense approach to vet. The Committee should amend the law, otherwise there was nothing to force them to vet. It could be a guidance but it was not the law.

The Chairperson said the issue was not about vetting – it was about delegation by the PP which did not disqualify an individual to be a DPP. The Committee had done the vetting the previous time and would proceed with that but vetting would not exclude people from selection to the shortlist. Vetting was not the only issue in deciding the DPP, but it was important.

Adv Breytenbach murmured approval.

Mr Nqola told Adv Mulaudzi he would speak to him outside.

The Chairperson said that he had no power to approve or deny outside meetings but they should not be brought back into the meeting as had happened the previous week.

Ms Silkstone explained that, at that stage, the secretariat did pre-screening that looked at qualifications, citizenship, etc. It was useful because there had been embarrassing moments. A person could have a criminal record but it might be related to anti-apartheid activities and not be relevant. The questionnaire sent with the application form had asked the candidates for relevant information. The Committee did not want to be embarrassed. Section 3 of the PPA talked about the PP delegating. Each PP gave the DPP different delegations. The current DPP’s delegations had changed when the new PP was brought in. The previous DPP had had different delegations again. The issue of delegations was generally a problem and she suggested that the PP be asked to look at the delegations and present them to the Committee.

Regarding Mr Horn’s proposal, she would see how a question could be formulated and maybe someone had another strength that would compensate for that skill so the question would need to be appropriate to the candidate. She was aware that 19 candidates qualified. Six did not qualify. She would provide details via email.

The Chairperson asked how many should be shortlisted. Secondly, how many days did the Committee want for interviews – would two days give some candidates an advantage? What lessons had been learnt from last interview process?

The Chairperson added that when he was in the Committee 11 years ago, there had been tensions between PP and DPP so one should also be looking at the person’s emotional intelligence and ability to lead downwards and upwards. He was not sure of the appropriate method to test a person’s leadership ability – some leaders could be technically strong but have no practical leadership ability and that could collapse the organisation. The Committee would be judged by the ability of that the appointed person to lead the organisation but also to issue good reports and to motivate the officials. The Committee had to be judged by the person’s ability not in the first month, but over time.

Ms Silkstone agreed that leadership was very important and leadership and management should not be conflated. The DPP needed both. There had often been conflict between the PP and DPP. The Committee needed to consider areas to be improved.

The Chairperson asked whether the interviews would be over one or two days. He could see that Adv Breytenbach was not happy with one day but he was worried about the advantages given to those on Day two, especially as the interviews would be televised live.

Adv Breytenbach stated that she had been on the ad hoc committee for the appointment of the current PP. She hastened to add that her party was the only one to oppose the appointment. Interviews had started early in the morning and had finished early the next morning, which had prejudiced both the candidates and the selection panel. The people who were interviewed early the next morning had faced different circumstances. Candidates were locked away but it was a farce as everyone had a smart phone and could watch the interviews. She pointed out that the interviews to select judges happened over a week and were televised but everyone interviewed and prepared for interviews differently. She did not believe that watching interviews helped. There was nothing to be gained by locking people up and sitting through the night. She saw no profit in sitting for 24 hours.

She added that the shortlist had to be short – six to eight of the best people. It was important for the shortlisting to be as stringent as possible. She was adamant that there was no benefit in following the previous process.

Mr Nqola agreed with Adv Breytenbach but said that a shortlist of eight would be fine. The question was how to find the eight. The draft criteria were very important. Regarding the issue of days, he agreed that it was an injustice to sit through the night. One had to check the feasibility of doing eight interviews in one day. But one had to look at the questions and not prejudice the earlier candidates. There had to be a structured form of questions. Maybe a candidate could present for three minutes and then each member of the panel could have two questions from the list.

Ms Maseko-Jele disagreed with Adv Breytenbach because a person could prepare and have an advantage. If the Committee was going to select eight, time allocated to each candidate would be important. The secretaries could do that as she was not sure about doing all in one day.

Adv Mohamed supported the number of eight candidates. Court judgements should also guide rational shortlisting and the debate was the correct one. One had to set criteria first and numbers followed criteria. Consistency was an important criteria in the courts. He would support an hour for an interview which would include a 5- to 10-minute presentation. On the morning the panel could allocate questions to each person.

Ms W Newhoudt-Druchen (ANC) said that she listened with her eyes and not her ears. She could not do 24 hours. Could the panel not categorise the type of questions, such as teamwork as a theme, and then questions could be asked on the same theme but they would not be verbatim repeats of the question?

Adv Mulaudzi asked how many members would be on the panel. Would it be 11 members as per the full time Committee members or would it include the alternate Members? That would impact on the time needed for questioning.

Ms Silkstone said that the appointment of the PP process had been extremely long and she would not suggest that interviews be done in one day. It put Committee Members under enormous pressure and one sometimes needed to get up and walk around for a few minutes. In terms of fairness of the interview, once the broad categories of questions had been determined, the secretariat would inform the candidates to prepare to answer questions on their skills, knowledge, etc. It was not about taking people by surprise. The panel wanted to know if the person was the right person for the job. She agreed with Ms Newhoudt -Druchen’s proposal regarding categories and phrasing questions differently.

The Chairperson noted that there was consensus on shortlisting eight people and holding interviews over two days. Subject to the advice of the secretariat, he would suggest that only the 11 full-time Committee Members be on the panel. Having Alternate Members there would add to the time needed to ask questions. In addition, alternate Members might have commitments in other Committees and that would create problems. He would take the other suggestions into consideration and the secretariat would update the Members before the interviews. On the day of the interviews, the Members would be taken through the questions.

The Committee agreed with the proposals.

The Chairperson thanked Ms Silkstone for her work done.

Arrangements for Shortlisting

The Chairperson informed the Committee that there would be a sitting of the House the following day to deal with motion of condolences for the late Deputy Minister of Mineral Resources and all ruling party Members were expected to be there. The Committee had two options: it could meet after 3pm for shortlisting or the Committee could proceed with shortlisting on Friday morning.

Mr Nqola stated that Friday was a half-day and there was to be an ANC meeting which three or four Members of the Committee would be attending.

Mr Horn supported meeting on Wednesday. The other option was to start at 12:30 but, unfortunately, he had been unaware of a meeting on Friday and had therefore made other commitments for Friday.

Adv Mohamed supported starting at 12:30 but he had to leave at 4pm on Wednesday.

Adv Mulaudzi agreed with the earlier start.

The Chairperson determined that the meeting would start at 12:30 and then continue after the first part of the House sitting.

Adv Mulaudzi asked that Members be advised which applicants had withdrawn.

The Chairperson informed him that those who had withdrawn were not included in the package.

The Secretary confirmed that the files contained 26 CVs. Those who had withdrawn had not been included.

Adv Mohamed noted, from the presentation, that six applicants did not qualify but he agreed that that had to be formalised in the shortlisting meeting.

The Chairperson suggested that the Chief Whips Forum should make the decision on who should be on the panel. There were parties that were not represented on the Committee and who might want to come. Some parties only came once in a while. They might just arrive on the day. He suggested that the matter be left to the Chief Whips to manage so that there would not be any disagreements or awkward situations on the day of the interviews.

Adv Mohamed took over the Chair for a short period of time.

Promotion of Access to Information Act (PAIA) - Amendment Bill

The response to public comments on PAIA was presented jointly by Adv Henk du Preez, State Law Advisor, Department of Justice and Constitutional Development and the Parliamentary Legal Advisor, Adv Noluthando Mpikashe.

Adv du Preez stated that Members should remember that it was a Committee Bill because the focus of the Amendment was intended to address the issues raised by the courts in respect of the My Vote Counts (MVC) judgement. Some of the public comments were not aligned to that particular intention in the Amendment. The Amendment had to be aligned to the Political Party Funding Act. PAIA had to dovetail with the Political Party Funding Act.

Adv du Preez stated that the heading on the document was not quite correct as he had consulted with the Committee Content Advisor and the Parliamentary Legal Advisor as it was a Committee Bill and not an Executive Bill. The team had also included an Annexure A to the response to the comments. The Annexure contained a proposed Bill in response to the comments. It was also important to be aware that the Bill dealt with two sets of provisions. The first part dealt with public bodies and the second part dealt with private bodies. The provisions dealing with private bodies was a mirror image of the one dealing with public bodies.

It was request-based access to information and there were grounds for refusal to provide information. All bodies were able to make information available on a voluntary basis.

The MVC decision was a deviation from making information available voluntarily. Political parties were obliged to make information available. The Political Party Funding Act (PPFA) was the substantive law that provided guidance and showed what record keeping had to take place. That was the substantive legislation. If there was an obligation to keep records, it was in legislation other than PAIA and not repeated.

Adv du Preez admitted that the Bill in its current form did not clearly align with the PPFA as the Committee would see in the submissions but he had added a proposed amendment in Annexure A. He added that some of the submissions made recommendations that could be seen as requiring policy change. In those cases, the response column simply showed what was being asked as the team was not recommending policy changes.

He referred the Committee to the document.

Summary of submissions on the Promotion of Access to Information Amendment [Committee] Bill

Table 1 – General comments by the Public

He presented the name of the organisations that had made the submission, referred to the clause itself and then explained the Department’s response.

He warned that if there was an amendment to the first part of PAIA, one would have to look at whether it would impact on the private body section of PAIA. Defining a political party as a private body would mean that various requests could be made to the party.

The following points were specifically addressed:

AmaBhungane had requested that documents be retained for seven years. The team’s response stated that the 5-year period spanned one administration. Many pieces of related legislation stipulated a five-year period, for example, section 23 of the Financial Intelligence Centre Act, 2001, which dealt with financial records, also required that records should be kept for a 5-year period.

Input from the SA Human Rights Commission (SAHRC) had suggested that “political parties” should be included in the definition of “public body”. That was not possible because there was a legal definition of public bodies which related to government bodies and PAIA had taken over that definition. Political parties could, therefore, not be defined as “public” bodies.

SAHRC had suggested that section 90(2) of the Act should be amended to ensure that an information officer of a public body who failed to comply with the provisions of section 32 was guilty of an offence. The response was that, the Protection of Personal Information Act, 2013, aimed to amend the Promotion of Access to Information Act, 2000, among others, to provide the Information Regulator with extensive enforcement powers.

MVC suggested that records should be made available with full information pertaining to the records - name, account, amount and date. In other words, there should be a format on how records should be made available. The Department advised that it would be proposing regulations to support the Act. The format could be provided for in the regulations.

The concern by MVC that there was no provision for monitoring and compliance would also be addressed by the Protection of Personal Information Act, 2013.

Media Monitoring Africa noted there was no requirement to make disclosures regarding political advertising.  The response was that the amendments to be affected to PAIA should not go beyond the purview of the MVC case. 

The Information Regulator recommended that the definition of “private body” be amended to include political parties and independent candidates, and that the definition of “head” should also be amended to include the head of a political party and independent candidates. The Department supported the recommendations.

Table 2 – specific recommendations per clause

Allan Gray recommended that donors of funds should be identified and disclosed as part of accounting records. The team agreed.

There were a number of proposals regarding the prescribed threshold but the threshold was determined in the PPFA, not in PAIA.

AmaBhungane suggested that the provision should simply refer to “the amount prescribed in section 9(1)(a) of the Political Party Funding Act, 2018”. The Department supported the proposal

The Banking Association South Africa stated that the requirement to report on commercial loans was not specified in the Political Party Funding Act.  A requirement, such as the aforementioned, should be specified in the Political Party Funding Act and should be subject to the same customer privacy requirements. The Department conceded that reference to “commercial terms” should be removed from the proposed new section.

Adv du Preez recommended the insertion of a new Section 52A in the Amendment Bill.

Proposed Promotion of Access to Information Amendment Bill

The Amendment of section 1 of Act 2 of 2000, as amended by section 21 of Act 42 of 2001, section 1 of Act 54 of 2002 and section 6 of Act 24 of 2015

1. Definitions of “head”, “political party” and “private body”.

Insertion of new section in Act 2 of 2000

2.         The following section is hereby inserted after section 52 of the principal Act:

“Recording, preservation and disclosure of records on the private funding of political parties

52A.     (1)        The head of a political party must—

(a)        create and keep records of—

(i)         any donation, exceeding the prescribed threshold, that has been made to that political party in any given financial year; and

(ii)         the identity of the persons or entities who made such donations;

(b)        make the records available on a quarterly basis, as prescribed; and

(c)        keep the records for a period of at least five years after the records concerned have been created.

(2)        For the purposes of this section—

(a)        “donation” means a donation as defined in section 1;

(b)        “financial year” means a financial year as defined in section 1; and

(c)        “prescribed threshold” means the prescribed threshold contemplated in section 9(1)(a),

            of the Political Party Funding Act, 2018 (Act No. 6 of 2018).”.

Amendment of “contents” of Act 2 of 2000

3.         The “contents” of the principal Act is hereby amended by the insertion after item 52 of the following item:

“52A.    Recording, preservation and disclosure of records on the private funding of political parties”.         

4.          Short title.

Discussion

The Chairperson referred to 52A (a)(i). Was that amount meant to above R100 000?

Adv Du Preez explained that PAIA stated that public and private bodies had to make information available on request, subject to certain condition but the MVC judgement meant that there was also an obligation on political parties to make records automatically available. The state argument was that funding above the threshold determined by the PPFA had to be made automatically available but PPFA obliged a party to keep records of all donations and so in terms of the Act one can request any information, including funding below R100 000. PPFA stipulated that all income had to be recorded and if an application was made for that information, it had to be considered. However, in the case of political parties, all income above R100 000 had to be disclosed publicly.

Mr Horn asked about the definition of the political parties and he was concerned about sub-clauses (a) and (b) the fact that there was not an “and” or “or” between (a) and (b). There was a loophole that new political parties did not have to record income even though it might get much in terms of private funding, possibly from cigarette guys. That was a technical question.

The Chairperson stated that he would not take responsibility for the response from that third party.

Mr Nqola said that he did not understand the comment on section 195 of the Constitution made in the submission by a Mr Bezuidenhout. It was important to analyse it correctly so that Members understood what the public wanted. He viewed the answer to My Vote Counts 52 B to be a good one. The time period of five years was good because he did not know when one could say a political party was no longer active. For example, what measurements would one use to say when the aMazzotti Alliance was no longer active.

Adv Mulaudzi said that DA and ANC were trying to degenerate the meeting. Mr Horn and Nqola were a cabal.

The Chairperson suspected that it was the by-product of the divorce in Johannesburg.

Adv Mulaudzi agreed and the disparity from the ruling party was because it wanted the EFF. He asked if there was there a regulation to deal with a party should it fail to keep the records as indicated in the Amendment.

Adv Mohamed supported the proposal of a five-year period which would be in line with practice. As one got into the mode of the Fourth Industrial Revolution, one had to have means of keeping electronic records. Annexure A was very different from the original Bill. He supported the reference to a threshold instead of an exact amount as it would change from time to time, depending on the amount of funding obtained by the EFF, or the DA. He asked about the difference between “quarterly” and “on request”. It was important to directly reference the PPFA. He agreed that the proposal adhered to what the Constitution Court had wanted from Parliament and the Committee should stick to that. It was evolving legislation and would change over the years.

In response to the questions referring to Section1(b) in the Amendment, Adv du Preez stated that the old legislative drafters used to insert “or” before each paragraphs but legislative drafting had evolved to say that if there were more than two paragraphs, the drafter should insert what one wanted (“and” or “or”) between the second last paragraph and the last paragraph. However, he did not see the need to have Section1(b)(b): “a party with representation in the national or provincial legislatures or a Municipal Council referred to in section 151 of the Constitution;”. That would mean that PAIA referred to any political party or independent politician, even if that person or party had not as yet won a seat in an election. He joked that that would cover up and coming parties and might also cover Mr Horn’s smoking habits.

Adv du Preez replied that the comment by Mr Bezuidenhout was one that he could not agree with and so he had quoted exactly what Mr Bezuidenhout had said.

The Legal Advisor clarified that what Mr Bezuidenhout was saying was that there was no difference between the ANC and the government. The ANC and the state was the same entity and so there was no need for such legislation.

Adv du Preez confirmed that the information had to be made quarterly. If the party failed to make information available, the Information Regulator would step in. However, the Committee could decide if it wanted to add anything. He reminded Members that there were substantive provisions built into the PPFA to ensure adherence to the reporting requirements and that failure by a political party to adhere to PAIA would also be a failure in terms of the PPFA.

The Chairperson distributed a document from the Helen Suzman Foundation to Members, asking that Members read it and take it into consideration when the Committee did its deliberations on 30 October 2019.

He believed that the proposed Amendment was very much improved from the one published.

Resolution

The Chairperson suggested that that version becomes the working Bill. The Committee agreed unanimously.

On 30 October 2019, there would deliberations on PAIA. By the time that Parliament adjourned at the end of the year, the Committee must have pushed the Bill through the House.  Parliament would still need an extension from the courts as the Bill had to go to the National Council of Provinces.

He thanked DoJ&CD and the Legal Advisor for their good work. He believed that the National Assembly could complete the Bill processes by the end of the year although it would have to go to the National Council of Provinces in January 2020.

Customary Marriages and Judicial Matters would be addressed on 5 November 2019 when the Department of Justice and Constitutional Development would brief the Committee. The Bill would go out for public comment so that when the Committee returned after the parliamentary recess in the new year, the responses would be ready for the Committee.

The Chairperson stated that the Cape High Court had dealt with the matter of Adv Jiba.  On 29 October 2019 the Committee receive an update from the Legal Services in Parliament that had been reading the judgement.

There was a challenge with BRRR as the Content Advisor had left Justice and the Researcher was under pressure. He was trying to ensure that draft would be ready by Friday so that the BRRR report could to be adopted on 29 October 2019 to meet the deadline.

The Chairperson thanked the Members and closed the meeting.

The meeting was adjourned.