Presentation by Adv. Anthea Gordon, Ethics Registrar in Parliament (Awaited)
Presentation by City of Johannesburg (Awaited)
The Committee met with City of Johannesburg councillors who sought to benchmark its Code of Conduct for Councillors with that of Parliament. This benchmarking visit would give the Councillors an idea of how Parliament conducted its Code of Ethical Conduct and Disclosures of Members’ Interest and identify gaps where the City of Johannesburg can fill to make its own processes tight.
The Acting Registrar presented Parliament’s Code of Ethical Conduct and Disclosure of Members’ Interests. The presentation was compiled to answer the following questions:
Understanding how the Joint Committee on Ethics and Members’ Interest conducts inquiries/investigations (particularly during this pandemic); the process flow; how matters were brought to the attention of the Committee, including referrals; the terms of reference of the Committee; if the Committee is supported by a Integrity Commissioner; the role of the evidence leader, if any; and legal representation of Members who are alleged to have breached the Code of Conduct.
The Acting Registrar covered standards of ethical conduct; details on annual disclosures of financial and registrable interests; breaches of the Code of Conduct and how complaints against Members of Parliament are processed.
The delegates from the City of Johannesburg indicated that although the processes were similar, there were some items that could be considered for introduction in their own process, such as having complaints submitted as an affidavit and having Ethics Committee members and support staff take an oath before assuming their duties. They asked who was the final arbiter in the parliamentary process; processing cases impartially; spill over cases; what happens to cases where Members resigned or their term comes to an end while the case was still active and investigations ongoing.
The Chairperson welcomed the delegation and noted the Committee members were unable to attend today’s session but he and the committee whip, Ms Lesoma, were able to capably receive the delegates. He indicated that there would be a presentation on the Code of Conduct for Members of Parliament.
City of Johannesburg Council Speaker remarks
Ms Nonceba Molwelwe, Speaker: City of Johannesburg Council, explained that the City of Johannesburg Council has 270 councillors and they are represented in standing committees which are called section 79 committees. These committees exercise oversight over the executive. The standing committee on Ethics deals with ethics, disciplinary matters and overseeing adherence to the Code of Conduct by councillors. This Committee saw it fit as the legislature to do a benchmarking exercise with Parliament.
The City thought it was important to enhance the role of the Ethics Committee by benchmarking with Parliament and how it exercises oversight and deals with ethics and the Code of Conduct. We are here at a critical time where political parties are on the ground campaigning for the elections. We have 40 plus days until the elections but we saw it necessary to come to Parliament and conduct this benchmarking exercise.
The Acting Registrar on Ethics and Members’ Interests, Adv Anthea Gordon, Acting Registrar took the delegates through the Code of Ethical Conduct and Disclosure of Members’ Interests. The Joint Rules on Ethical Conduct and Disclosure consist of standards of ethical conduct; details on annual disclosures of financial and registrable interests; breaches of the Code of Conduct and how complaints against Members of Parliament are processed.
These standards of ethical conduct require that Members of Parliament abide by the principles, rules and obligations of the Code and uphold the law by virtue of the oath they take in Parliament. They place public interest ahead of their own interest when discharging their obligations; and maintain public confidence in Parliament and eradicate all forms of discrimination.
Mr Adolf Malema, CoJ Councillor, asked how the Committee practised dealing with cases without fear or favour and partisanship. The processes of the two institutions are almost the same, there are a few differences but those gaps can be filled. One of those gaps was the oath taken by all Committee members and support staff. This is something that we will take with us to implement as well.
The disciplinary process takes very long because after the recommendations are tabled in
the House, they must be taken to the MEC for Cooperative Governance and Traditional Affairs (COGTA) who has to evaluate the case and report to the Council if the findings were the same. If different, these findings must be presented to the Council.
Is the public informed on the decision that is taken on Members that breach the code? There is a public perception that public representatives are corrupt. However, there are these processes to ensure that there is good governance and the code of conduct is upheld. Is the public aware that there is a code of conduct and it is applied to Members? Are the outcomes of a case against a Member made public?
Mr Phenous Maditsha, CoJ Councillor, welcomed the idea of having the complaint submitted as an affidavit. This is something that the CoJ will take home. How does Parliament deal with spill-over cases when the five-year term of office has come to an end and a Member is facing a charge? What verification process is employed on Members’ Interest disclosures? Is there a method to verify the information received from Members? Finally, is there room for an appeal for the decision reached by the Ethics Committee or Parliament?
Ms Silvia Monakale, CoJ Councillor, remarked that the processes were slightly different but they are aligned. She asked at what point the support staff and the Committee members take the oath of confidentiality. Secondly, how many Members sit in the Sub-Committee of the Joint Ethics Committee?
Mr Peter Louw, CoJ Councillor, asked if the parliamentary term comes to an end, does the investigation continue for the Committee to make a finding? If the investigation continues, what is the objective – is it to bar that person from coming back for the new term?
He asked about the declaration of interests noting that they have seen Members of Parliament and of the Executive appearing at the Zondo Commission. What process has been conducted by the Committee to follow up on those allegations? Secondly, on confidentiality versus the public interest – in most CoJ Council cases after it goes to Council and the MEC, a statement is released about the case or implicated Member. This is not done in Parliament.
Our Ethics Committee used to be a partial committee in the past but recently it has been used as a tool to patch together councillors from various political parties.
Mr Mongameli Mnyameni, CoJ Councillor, asked who the final arbiter is for the cases in Parliament. In the CoJ, it is the COGTA MEC. Secondly, does the Committee process complaints against former Members of Parliament who were now retired or no longer public representatives?
A CoJ Councillor sought clarity on matters where family members or relatives enter into business with the state without the Member’s knowledge. If a case is in process and the Member involved resigns but then returns at the start of the next parliamentary term – what happens to that case?
Adv Gordon replied that generally when dealing with complaints, the Registrar would be asked to inform the Member that there is a complaint against the Member. The complainant is informed in due course about the response. We do not physically communicate after that because everything in the Ethics Committee is confidential. We cannot take liberty to divulge further information even to the complainant due to the confidentiality of the matter.
At the end of every five-year parliamentary term, there are always cases outstanding as well as active cases that have been processed. Often times, these cases have to be abruptly stopped due to the fact that the term has come to an end. Now, the outgoing Ethics Committee compiles a legacy report and that report is tabled in the first meeting of the new Committee. The Registrar would then highlight everything that was processed and all cases on the case roll. The Registrar would also compile a report that recommends which cases must be processed further or that must not continue based on various reasons. The main reason would be that the Member concerned has not returned to Parliament. It it is highly likely that the Committee recommendation would be to put a halt to that case. For former Members of Parliament, these cases are not processed because those persons are no longer Members of Parliament and there is no recourse that Parliament can implement. Matters are only dealt with for Members of Parliament
When we receive the complaint, the Registrar has seven days to inform the Member. If not, the Registrar must indicate why it failed to do so. However, we have never missed our seven day deadline. Members often fail to comply with the seven day response period and we continually write to the Member. If the Member fails to comply with the seven days, the matter is reported to the Ethics Committee.
As for the verification process, Parliament contracted with CIPC through a ‘gentlemen’s contract’ to access the CIPC system to track verification. Parliament also utilises DPSA, which is well versed on verification. In a conference she attended, one of the verification processes suggested was accessing the Deeds Registry when dealing with properties.
For the Sixth Parliament, we are still processing 2019/20 disclosures but we cannot disclose that information. The Report is available for the public to scrutinise.
The House is the final arbiter of cases – it either approves the recommendations of the Committee or sends the report back to the Committee with its own recommendations after conducting due process.
As for appeals, the Code does not necessarily allow for appeals but from the wording of the Code, it is not a closed matter to that option.
Both Members and staff take the oath at the start of business. No one is allowed access to any documents pertaining to the Committee without taking the oath. At the start of new Parliament, when new Members are nominated to serve on different portfolios in Parliament, parties will send their nominees to serve on the Ethics Committee to the Registrar and that letter is sent to the Speaker who formally appoints a Member and places that in the Announcements, Tablings and Committee Reports (ATC) parliamentary papers. Once the oath has been taken, then work can proceed.
The Sub-Committee has seven members with a Co-Chairperson.
When a Member resigns, the case is closed. If that person comes back in the new Parliament, the case file is not reopened. However, the Registrar observes if that complaint is received as a new complaint because the public is very vigilant and the complaint often gets resubmitted. When that happens, we receive that complaint as a new complaint. Most times we start afresh because the Ethics Committee may not comprise of the same members of the previous term’s Ethics Committee.
When a Member resigns, there is no enforcement of the Code and we do not process the case further because the Code applies only to Members of Parliament.
The Chairperson commented on impartiality and said that what guides the Committee is the Code of Ethics. The Committee looks at the facts and the evidence presented before it and on that basis it arrives at a decision – it does not matter who has breached the Code of Ethics.
On Members’ appearances at the Zondo Commission, unless and until we receive a sworn affidavit from any person, there is nothing that the Committee can do. We cannot consider those allegations because they are appearing at another tribunal. If that is brought as an affidavit to the Committee, then it will be considered and processed.
The meeting was adjourned.
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