Election of Chairperson

Committee on Section 194 Enquiry

20 July 2021
Chairperson: Mr Q. Dyantyi (ANC)
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Meeting Summary

Video: Committee for Section 194 Enquiry, 20 July 2021

Draft Terms of Reference

Report of the Independent Panel on the Public Protector

The Ad hoc Committee for Section 194 Enquiry met on a virtual platform for the first meeting of the Committee. The meeting was intended to be a short procedural meeting.

Committee Members elected Mr Qubudile Richard Dyantyi unopposed as Chairperson. The newly elected Chairperson noted that that it was the largest Committee in Parliament, consisting of 35 Members, many of whom were senior Members in their parties. He stressed the fact that the Committee was undertaking a constitutional enquiry in terms of section 194 of the Constitution and not a judicial enquiry. It was phase five of a seven phase process looking into the fitness of Busisiwe Mkhwebane to hold the Office of the Public Protector.

The newly elected Chairperson invited the leaders of parties represented in the Committee to make some introductory remarks. Seven party leaders made remarks. They highlighted the importance of the process and urged the Committee to take a non-partisan approach. The leader of the EFF declined to take part in the fishing expedition.

The parliamentary team that would support the Committee was introduced.

Meeting report

Opening Remarks
The Committee Secretary, Mr Thembinkosi Ngoma, opened the meeting. As it was the first meeting of the Committee, he announced that he would call for nominations for Chairperson according to National Assembly Rule 160. He explained the procedure of nomination, acceptance and seconder, adding that that any objections raised in terms of Rule 165 had to be lodged with the Speaker and not at the meeting.

Election of the Chairperson
The Committee Secretary invited nominations for the position of Chairperson.

Mr X Nqola (ANC) stated that normally the whip indicated who was present and declared the votes of that party. Should that not be the process if the election of a Chairperson went to the vote?

Gen B Holomisa (UDM) supported the process determined by the Secretary.

Dr C Mulder (FF+) asked whether the Secretary should not have identified the full Committee Members who were online as they were the ones who would be permitted to vote or make proposals.

The Committee Secretary assured Mr Nqola that he would ask Members to vocalise their vote if a vote was required. He informed Dr Mulder that the names of all the Members had been checked by the Committee staff and the required quorum was present.

Dr Mulder explained that he was not asking about the quorum but was concerned that only full Members would be permitted to participate in the voting process.

The Committee Secretary assured Dr Mulder that the Committee staff were working with the official list of Members of the Committee and they were being monitored as they spoke online. A list of Members of the Committee had been made available to all Members but he was happy to do a roll call if Members desired that.

Ms D Dlakude (ANC) stated that everyone had seen the list of Committee Members in the ATC (Announcements, Tablings and Committee Reports) so she presumed that Dr Mulder might wish Members to identify themselves when they nominated, seconded or voted for a candidate.

The Committee Secretary called for nominations.

Ms Dlakude nominated Mr Qubudile Richard Dyantyi to be Chairperson of the Committee.

Mr Dyantyi accepted the nomination (in isiXhosa).

Mr Dyantyi’s nomination was seconded by Mr M Gungubele (ANC).

Dr Mulder stated that he believed that Dr Dyantyi had to accept the nomination only after he had been nominated and seconded. He requested that procedure be followed in case the work of the Committee ever ended up in court.

The Committee Secretary stated that he believed that the correct procedure had been followed but to put Dr Mulder’s mind at ease, he requested Mr Dyantyi to formally accept the nomination following the seconding of the nomination.

Mr Dyantyi accepted the nomination.

Prof C Msimang (IFP) asked for clarity as he had been informed that the voting and non-voting Members of the Committee might be reviewed. Had that happened?

The Committee Secretary stated that all parties had agreed to the voting and non-voting Members.

He declared Mr Dyantyi Chairperson of the Committee for Section 194 Enquiry and congratulated him.

Remarks by the newly elected Chairperson
The Chairperson thanked the Committee, saying that it was with profound humility and commitment that he accepted the huge responsibility of executing the constitutional duties of the National Assembly. It was indeed a privilege and an honour to be given the opportunity to lead such a diverse team assembled for the purpose of an enquiry fact-finding mission.

He stated that at 36 Members it was the biggest Committee of the National Assembly with experienced and seasoned Members. The seniority of its Members was very notable. That day the Committee was starting the work of the enquiry according to the NA rules into one of the Chapter Nine institutions. More specifically, the work was an enquiry into the fitness of Ms Busisiwe Mkhwebane to hold the Office of the Public Protector (PP) South Africa. The Office of the Public Protector had a special role in protecting the public. In terms of the NA rules, there were seven steps from the start to the finish of the process. The first four steps had been completed and the Committee was on step 5. The first four stages had been concluded remarkably well and he wished to thank everyone who contributed to that success. The panel report had concluded with evidence on two counts of misconduct and incompetence.

However, the real work of investigation started with this team. The Committee Members were assembled, not to rubber stamp, but to apply their minds and to do their constitutional duty. In executing their work, he urged that they stayed focused on due process; that they pursue facts and evidence in front of them; that they adhere to procedural fairness and become the arbitrators of facts; ensure that there was always right to Audi alteram partem, and that they always stood on rationality. Such a focus would help Members avoid being trapped in the two extremes that were out there. One extreme being advanced was that the PP was not fit to hold office; the other extreme was that the PP was fit to hold office and, therefore, there was no need for this enquiry. Those extremes could be avoided by staying with due process and staying focused on facts and evidence and letting the outcome be the undisputed product of adherence to facts.

There were no predetermined outcomes. Members had not assembled with outcomes in any of their briefcases. They had to engage in that process and be honest about the evidence in front of them. It was a constitutional enquiry, not a judicial enquiry. Theirs was an exercise in accountability.

From this day until the report is delivered, they were in the spotlight. Now that the Chair had been elected, the Committee would move with speed but without rush. Further delays would not be good for the integrity of the process. It would also be in the best interest of the Office of the Public Protector SA for the Committee not to delay the process any further. He urged all Members to keep that in mind.

The next meeting had to itemise key matters relating to the roadmap that Members had to agree upon in terms of the process, a common modus operandi, the format of the process and its approach. He would, from the following day, kickstart with the Committee support team, the process of document availability. In the following week a meeting had to be convened to get to the substance of the matter. That had not been possible prior to the election of the Chairperson as leader of the team and he would not make any substantive remarks in the current meeting.

The Chairperson called on all Members representing parties to make some very brief remarks.

Remarks by party leaders in the Committee
Mr G Hendricks (Al Jama-ah) stated that the Chairperson had given leadership when he had stated that it was a constitutional enquiry and not a judicial enquiry. A judicial enquiry was a creature of its own but a constitutional enquiry gave direction as to how to conduct such an enquiry.

Al Jama-ah recognised that the Constitution provided for judicial inquiries but that was very expensive and out of the reach of the ordinary person. In similar vein, the Labour Relations Act had provided for the CCMA (Commission for Conciliation, Mediation and Arbitration) to provide a cheap and speedy process for the ordinary man in the street.

Al Jama-ah was happy that if someone was not satisfied with the decision of the PP, one could take the case to the High Court. In the case of the CCMA, one could not take every case to the high court but, with reason, matters could be taken to the Labour Court.

The Chairperson requested Mr Hendricks not to get into the substance at that stage.

Mr Hendricks concluded that the Members needed to understand why there was a PP and the need for a speedy and inexpensive resolution to matters.

Ms M Suckers (ACDP) said that it was impossible not to recognise where the Members were that day in the history of SA and there was a responsibility on each of the Members, as the Chairperson had outlined, to set a very high standard as to how they applied themselves and to contribute to rebuilding the integrity and trust that the public had in the institutions of SA. It was a privilege to participate and she trusted that they would work together in the interest of SA.

Gen Holomisa congratulated Mr Dyantyi on his election as Chairperson. There was no doubt that in order to do a good job in that assignment, Members would have to apply a non-partisan approach. In that way they would find a lasting solution.

He suggested that the legal division of Parliament should secure a report from the Office of the PP that reflected how many cases she had handled since she had come into office; how many cases had gone on review and been challenged in court; of those cases, how many had she won and lost. In that way, the Committee would be able to speak from an informed position.

Dr Mulder congratulated Mr Dyantyi on his election. It was the first time since the adoption of the Constitution in 1996 that Parliament had undergone such a process and it had huge implications. The Committee was set up in terms of section 194 of the Constitution that said that the PP could only be removed on grounds of misconduct, incapacity or incompetence, so they were dealing with serious matters. The FF+ believed that they should absolutely follow due process; follow the evidence and the facts; ensure procedural fairness and always remember the Audi alteram partem rule and take rationality into account throughout. The FF+ came with an open mind and would let the facts speak for themselves.

Ms Z Majozi (IFP) greeted Members and congratulated Mr Dyantyi. She hoped that, as they began the work, they would forget about who came from which organisation in order to reach a conclusion and to present a rightful mandate to Parliament. Parliament was looking upon the leaders of different organisations elected to the Committee to make the right decision. Hopefully their report would provide sufficient information to make the right decision.

The Chairperson called on Ms O Maotwe (EFF) to speak on behalf of the EFF as she had seemed to be the only EFF Member on the platform at the commencement of the meeting. However, there was no response and it appeared that she had left the platform.

Dr A Lotriet (DA) congratulated Mr Dyantyi on his election on behalf of the DA and wished him everything of the best and strength for the important project ahead of them. The DA trusted that the process would follow in an unbiased way and would follow due process.  She assured the Chairperson that if due process were followed, the DA would participate fully.

Dr Lotriet said that her party was also very aware of the historic importance of that particular Committee and therefore it was incumbent on every Member to act in the interest of the country and that SA should be the primary goal and the rule of law should be followed. She concluded by wishing Mr Dyantyi everything of the best.

Ms N Tolashe (ANC) greeted the Members and, on behalf of the ANC and congratulated Mr Dyantyi on his election as Chairperson of the very important and historical Committee. The party did not doubt that he was up to the task and would take the Committee where it was supposed to go. The Committee was holding the meeting after a very dark cloud had descended over the country. The ANC appreciated those communities that had taken it upon themselves to say “no” to violence and looting and had protected what they had and the jobs that SA was so very short of. The party congratulated the Mandela nation wherein colour did not mean anything but everyone was an equal human being under the flag of one nation, SA.

She stated that the Committee processes had emerged from a good initiative where vigorous oversight processes had taken place and it was found that the Constitution did have some gaps regarding Chapter Nine institutions. Parliament knew how to bring the Chapter Nine institution leaders in and now needed to find a similar constitutional tool to usher them out. She congratulated those Members who had identified that gap. She said that the Members were not there to deal with individuals but to determine how Chapter Nine institutions would be dealt with.

Ms Tolashe stated that the ANC put its trust in that Committee. It was not the first time that Members had participated in such a Committee and, while there would be differences, the ANC knew that they would be able to find each other and address the differences so that they could emerge united as that Committee. She trusted that Parliament would provide all the tools that were required for the work. The ANC did not doubt the Chairperson or the back officers that would facilitate the work and make them proud of their achievement.
Even the generations to come would be proud of the work of that Committee.

She said the Members of the ANC were committed, as people of SA, to emerge victorious as a Committee trusted with the responsibility to ensure that the laws that governed the country were the laws enshrined in the Freedom Charter.

The Chairperson thanked everyone for the brief comments of appreciation and of commitment to the process. The speakers had already given him homework and he would take that on board. He believed that that it was proper that the team, or backroom office, be known.

Mr J Malema (EFF) stated that he was part of the meeting.

The Chairperson asked if he had anything to say. He assumed that Mr Malema was connected under the name of “iPad” and he had, therefore, not identified him.

Mr Malema said that he had nothing to say to the fishing expedition.

Ms Maotwe stated that she was also present and was part of the Committee.

The Chairperson explained that he had called on her earlier. He requested Adv Tau to introduce the support team.

Introduction of Support Team
Adv Mongana Tau stated that he was Acting Section Manager for Procedural Matters in Parliament and co-ordinator of the support team. He stated that staff had been seconded to serve the Committee.

Other team members included:
Committee Secretary – Thembinkosi Ngoma
Content Advisor - Sisanda Sipamla
Content Advisor - Sifiso Magagulu
Committee Assistant – Mvha Apezweni
Legal Advisor, OCLS - Fatima Ebrahim
Legal Advisor, OCLS - Dr Barbara Loots
Procedural Advisor, Table Committee - Tshepiso Nage
Procedural Advisor, Table Committee - Perran Hahndiek  
Executive Secretary to the Chairperson - Khaya Vellem
Communications Services and Media Liaison – Rajaa Azzakani
Section Manager Publications and Publishing/ Media and Stakeholder Relations - Shirley Montsho
Researcher – Mzi Dano

Adv Tau stated that additional members would join the team as the need arose.

The Chairperson thanked Adv Tau for introducing his team. They would immediately begin to prepare for the next meeting.

Closing remarks
The Chairperson thanked everyone for attending the meeting which was intended to be a short meeting to kickstart the important process. He thanked the team and everyone.

The meeting was adjourned.

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