25 Jan 2022
Mr M Dirks letter on misuse of public funds (internal document)
SCOPA Letter to President (internal document)
President’s Response to SCOPA (internal document)
Legal Opinion (internal document)
In this virtual meeting, the Standing Committee on Public Accounts convened to discuss a letter it had received from the President in response to a set of written questions from the Committee about the alleged misuse of public funds for party-political purposes.
The Committee’s correspondence with the President was the result of its 25 January meeting, in which a former member had proposed that the President should be questioned about a leaked audio recording of an ANC National Executive Committee meeting. In the recording, the President alluded to the misuse of public funds for party-political purposes, and the Committee had asked the President in writing for further details about his knowledge of such misconduct. In his response, the President denied having direct knowledge of specific cases, and directed the Committee to information already in the public domain, especially Zondo Commission testimony about the misuse of State Security Agency funds.
Before discussing this response, the Committee heard a legal opinion which confirmed that available evidence merited a Committee investigation into the misappropriation of State Security Agency funds. The opinion also made various recommendations about how the Committee could proceed with such an investigation, including various persons of interest whom the Committee could interview. It was recommended that the Committee should await the publication of the final section of the report of the Zondo Commission, and that it should hold joint meetings with other committees about the State Security Agency, its financial management, and its audit record.
Members’ opinions about how to proceed were highly polarised. The DA, EFF, and ATM held that the President’s response to the Committee’s questions had been unsatisfactory and that he should be required to meet with the Committee in person. The ANC, however, maintained that the President had credibly denied having relevant personal knowledge and that further interactions with him would therefore be without value. Instead, the Committee should await the publication of the third part of the Zondo Commission report, which would guide any future investigation, including into the State Security Agency.
Unable to reach consensus after extensive discussion, the Committee voted on the proposal to invite the President for an oral interview. The proposal was defeated 6-4, with all opposition parties voting in favour and the ANC voting against. The Committee would discuss its next steps in a meeting on 23 February.
The Chairperson reminded Members that, on 25 January, the Committee had discussed a leaked audio recording in which President Cyril Ramaphosa alluded to the misuse of public funds for party-political purposes. The recording had been brought to the Committee’s attention by Mr M Dirks (ANC). The Committee had subsequently sent a list of written questions to the President, and he had responded, also in writing. The Committee would need to consider his response and determine how to proceed.
However, the Chairperson said that the President’s response also pointed the Committee towards other jurisdictions of oversight, especially the State Security Agency (SSA). He had therefore asked Parliament’s legal office to brief the Committee specifically on those matters. The delivery of the legal opinion had been delayed, apparently because the office was occupied with other urgent matters currently under litigation. He suggested that the Committee should hear the legal opinion before discussing the President’s response.
He added that Mr Dirks had been redeployed by the ANC and was no longer a member of the Committee. Mr Dirks had brought the leaked recording to the Committee’s attention, but his involvement should not become a “distraction.” It was now a Committee matter, not an “individualistic” matter, and the Committee was dealing with it collectively. If the Committee required further input from Mr Dirks, that would be communicated to him.
Legal opinion: Oversight of the State Security Agency
Ms Fatima Ebrahim, Parliamentary Legal Adviser, Constitutional Legal Services Office, provided an overview of the President’s response to the Committee’s letter. The crux of the response was that the President denied having any “direct or specific” information about the alleged misuse of public funds for party-political purposes. Instead, he directed the Committee to consider information already in the public domain, especially in testimony given to the Zondo Commission. To that extent, his response did not proffer any new information about misuse of public funds. He also said that, in his capacity as ANC president, he was committed to the party’s renewal.
Ms Ebrahim discussed the legal office’s preliminary research into the Zondo Commission’s coverage of the misuse of public funds for party-political purposes, both during its hearings and in the sections of its report published thus far. Several witnesses had referred to the misuse of SSA funds, but the matters they had raised had not necessarily related to party-political funding in particular. She listed the names of various witnesses, some of whom the President had mentioned in his letter, and others who had not testified to the commission but who could also be viewed as “persons of interest.”
Paragraph 550 of the first part of the Zondo Commission’s report said that the commission “did not seek to establish the full extent of corruption associated with political party financing or the extent to which other political parties may also have been implicated. However, the two examples mentioned are more than enough to sound the alarm.” The two examples referred to in the relevant paragraph were both in the provinces, so had not necessarily been within the Committee’s ambit. It was her understanding that the third part of the commission’s report, due to be submitted to the President at the end of February, would contain further detail and would probably influence the direction of any inquiry by the Committee.
Ms Ebrahim concluded that there was certainly space for further inquiry into these matters – although the President’s letter did not provide “concrete evidence” of financial mismanagement for party-political purposes, there was sufficient information in the public domain, especially about the SSA, to merit such an inquiry by the Committee. The Committee should note that, in terms of its mandate, it was irrelevant to its inquiry whether mismanagement or misappropriation of public funds had occurred specifically for party-political purposes.
Key to the Committee’s inquiry would be the questions of who had authorised any inappropriate expenditure at the SSA, whether and how the expenditure had been captured in the SSA’s financial statements, and why it had not been detected by the Auditor-General. The purpose of parliamentary oversight was not only to promote accountability but also to inform any reforms, including legislative change, that could prevent problems from recurring.
She recommended that the Committee should wait for the third part of the report of the Zondo Commission to be published, both to prevent duplication and so that it could look at the matter “holistically.” The Committee might also wish to take some or all of the following steps:
· Ask questions of the “persons of interest” she had mentioned earlier, or of other persons;
· In a joint meeting with the Standing Committee on the Auditor-General and the Joint Standing Committee on Intelligence, invite a report from the Auditor-General on the financial records of the SSA and the difficulties it faces in auditing the SSA;
· Invite a report from the SSA on its internal financial management and general operations; and
· Form a subcommittee to consider the relevant evidence and handle the inquiry.
The SSA usually reported to the Joint Standing Committee on Intelligence in closed meetings, but it was not a foregone conclusion that all meetings with the SSA had to be closed. The burden was on the SSA to demonstrate that closure was justified.
On the Committee’s interaction with persons of interest and other witnesses, Ms Ebrahim said that the Committee should first invite those persons to provide a written statement in response to specific questions. After receiving written statements, it could decide whether it was necessary to elicit oral testimony from anybody. If it was, this should be done by invitation; witnesses should only be subpoenaed if they proved uncooperative.
The Chairperson said that the legal opinion clarified the Committee’s right, which had previously been in question, to inquire into the financial management of the SSA.
Mr A Lees (DA) said that the legal opinion opened the door to Parliament getting more involved in the financial management of the SSA, a step which had clearly been required for a long time. That needed to be attended to. However, that was not the central issue currently before the Committee. The central issue was the President’s remarks in the leaked audio recording. The SSA issue was important, but undue attention to it might constitute “obfuscation” and an attempt to direct the Committee away from the central issue.
He quoted from the recording, in which the President said that, “Each one of us knows that quite a bit of money that is used in campaigns, in busing people around, in doing all manner of things, is often from state resources...” In his interpretation, these remarks clearly implied “personal knowledge” of misconduct, beyond the indirect knowledge one gained from following the Zondo Commission. It was disappointing that the President had not directly addressed his personal knowledge of the misuse of state funds, and he was concerned that the President had not taken seriously enough the Committee’s request for information. He was not satisfied that the response dealt adequately with the central issue, and he thought that the Committee should invite the President to appear before it.
The Chairperson said that he had wanted Members to discuss the legal opinion, and the SSA, before turning to the more important discussion about the President’s response.
Ms B Van Minnen (DA) agreed with Mr Lees’ proposal, which she thought was in line with the Committee’s earlier resolution about how to deal with the matter.
On the legal opinion, she asked why Ms Ebrahim recommended that the Committee establish a subcommittee and deal with the inquiry in closed meetings. Surely it was inappropriate to treat as confidential an inquiry into the alleged misuse of public funds. The SSA’s confidential operations were not relevant to such an inquiry.
Ms V Mente (EFF) asked the Chairperson to clarify whether the Committee was currently discussing only the legal opinion, or whether it was also appropriate to comment on the content of the President’s response.
The Chairperson said that the Committee had sought the legal opinion because it had been unclear whether the finances of the SSA were within the Committee’s purview. The legal opinion had established that they were within the Committee’s purview. Other issues, such as whether a new subcommittee should be established, were secondary.
Ms Mente said that she would disagree strongly with anyone who questioned the Committee’s right to investigate potential financial mismanagement at the SSA. The Committee investigated the finances of state entities which fell under the oversight of a variety of different parliamentary committees.
She said that the President’s response seemed to be “mocking” Members and “treating [them] like children,” as though they had nothing better to do than follow up on evasive statements. She wondered whether the leaked recording would be played during one of the Committee’s meetings. In the recording, the President said that everybody knew – not that everybody had heard – that public funds were spent for ANC purposes. This was the context of the Committee’s written questions to the President, and his response failed to engage with that context. The Committee was always very patient, but not if it was being “mocked” by the very person whose remarks had triggered its inquiry. She agreed with other Members that the Committee should call the President to appear before it and explain his remarks. If he refused, he could be subpoenaed. And, at that meeting with the President, the Committee could play the leaked recording to ensure that the context of the inquiry was clear.
She acknowledged the legal opinion but was disappointing that the opinion did not “interrogate the facts,” and she disagreed with Ms Ebrahim’s portrayal of the President’s response. She also wanted Ms Ebrahim to clarify the recommendation that a subcommittee should be established. That was acceptable if it was a mere suggestion, but the Committee had its own way of doing things, and it could not be instructed to adopt any particular approach in dealing with this matter.
Ms T Marawu (ATM) said that the President’s response was “underwhelming” and a “blatant denial” of what he was on the record, in the leaked recording, as having said in the past. His response went into considerable detail about the finances of the SSA but did not give equivalent attention to potential financial mismanagement at other state entities. In the recording, he said that everybody knew that public funds were misappropriated, but in his letter, he claimed not to know anything about such cases. Had he been lying in the recording, or was he lying in the letter? She agreed that the Committee should call the President in order to interact with him directly.
Mr S Somyo (ANC) said that he appreciated the Chairperson’s “foresight” in requesting a legal opinion. He agreed with Ms Ebrahim that the third part of the report of the Zondo Commission would be crucial to the Committee’s understanding of the matter. Therefore, he thought that the Committee should not meet with the President. Instead, it should follow the legal advice and wait for the Zondo Commission’s process to end; thereafter, it could reflect on the steps to take next.
Clarifying the legal opinion in response to Ms Van Minnen and Ms Mente’s questions, Ms Ebrahim said that she was not suggesting that the Committee’s oversight function should be moved to a subcommittee. She had envisaged the subcommittee as a working group, determining what information the Committee would need and from whom. This was simply a possible way of easing the Committee’s task. She knew that the Committee had an established way of handling oversight and of splitting its work between its members, and it could, of course, proceed however it saw fit.
However, she said that a subcommittee could be tasked with examining the relevant evidence, and especially the large volume of documents: the Zondo Commission reports, the transcript of testimony to the commission, the 2019 High-Level Review Panel Report on the SSA, and so on. The subcommittee could also consider the confidentiality issue. As the panel report mentioned in respect of the Auditor-General’s processes, the SSA frequently raised confidentiality issues when it was subject to oversight. As she had said earlier, a closed meeting would be granted only if the SSA successfully motivated for closure on the grounds of the safety and security of the republic. It would therefore be helpful for a subcommittee to familiarise itself with the SSA’s operations, in order to respond properly to the probable request for closure. Given the importance of transparency, the legal office did not believe that there was ever a basis for a blanket closure of committee meetings, and it had previously advised other committees to deny requests for closed meetings when a closed meeting would not have been in the public interest.
She said that the legal opinion did not speak to the merits of the President’s response to the Committee, nor did it seek to judge whether the Committee should call the President before it. The Committee was always at liberty to invite anybody, including the President, for interviews about any matter within the scope of its oversight. She apologised if the opinion had appeared to imply otherwise. The Committee had requested legal advice about the options available to it for pursuing the matter further. As she had said earlier, the legal office had concluded that there was a basis for the Committee to investigate the alleged misuse of SSA funds.
The Chairperson said that the Committee had previously overseen the SSA’s finances, but, during the third or fourth Parliament, there had been a decision to move that function to the Joint Standing Committee on Intelligence. The legal opinion made it clear that that move had been a policy decision, and therefore could be altered or reversed – it would not be illegal for the Committee to investigate the use of SSA funds.
Mr B Hadebe (ANC) agreed with what the Chairperson had said in his opening remarks about how it was important not to “personalise” such an important matter. This matter was no longer about Mr Dirks. The Committee had resolved to deal with it, and it had thereby become a Committee matter. The legal opinion had been delayed, but he would not complain about that – he was glad that it had arrived, since this was a matter of national importance and required urgent attention. He also appreciated that the President had replied timeously to the Committee’s letter.
He said that it had been evident from the outset that Members were not aware of the full context in which the President had made the remarks in the leaked audio recording. The President’s written response had provided ways to rectify that. An important feature of the context was the fact of the High-Level Review Panel on the SSA, which had been established by the President in June 2018 and whose report had been published in March 2019. That report would be critical to any inquiry by the Committee. Among the report’s findings was that there had been serious “politicisation and factionalisation” of intelligence over the last decade. Another was that, through “resource abuse,” the SSA “had become a ‘cash cow’ for many.” This report was in the public domain for everybody to read. Those who had read it were aware that the President’s remarks did not represent any new revelations. Members should endeavour to engage with the panel report.
Mr Hadebe said that, given the legal opinion and the President’s letter, the President should no longer feature in the Committee’s inquiry – unless the Committee intended to “play the man and not the ball.” Instead of trying to force the President to know something he did not know, the Committee should seek to find and hold accountable those responsible for the misappropriation of state funds. Thus, he agreed with Ms Ebrahim’s recommendation that the Committee should wait until the last part of the Zondo Commission report was released. After that, it would be clear which organs of state were to be charged with implementing which corrective measures, and the Committee would be able to judge its proper role without duplicating the work of others.
Ms N Tolashe (ANC) agreed with Mr Somyo and Mr Hadebe. The Committee had previously agreed that it would not “cut corners” in investigating corruption – that was why it had written to the President. Accountability applied to everybody, and the Committee’s letter to the President was democracy in action. It should congratulate itself for that. It was committed to following up on the abuse of public funds, “without fear or favour,” regardless of who the culprit was. However, the Committee had to accept the President’s response to its letter. She did not understand the rationale for the proposal to invite the President before the Committee, given that he had already responded to its questions in writing. What made Members think he would change his answers if he delivered them verbally?
She said that the Zondo Commission was already well underway and had demonstrated its commitment and ability. Former President Jacob Zuma should be congratulated for initiating that process. The Committee should be systematic and should not be emotional – it should not seek to “embarrass” people, because such efforts might not succeed. It should follow the legal advice it had received and wait for the final report of the Zondo Commission. All Members were South Africans, and nobody was going anywhere. The process had begun, and it would be concluded, regardless of whether the same people were still sitting on the Committee by then.
Ms B Zibula (ANC) agreed that the Committee should accept the legal opinion and wait for the final report of the Zondo Commission. It should not do things just for the sake of it – it should ensure that its actions resulted in positive change.
Ms Marawu said that, if she remembered correctly, on 25 January the Committee had resolved to send written questions to the President, on the basis that his response would determine whether it was necessary to meet with him in person. Now, Members were saying that they were not satisfied with the President’s response. Was her memory of the 25 January meeting correct?
The Chairperson confirmed that the Committee had agreed to write to the President, while reserving its right to invite him for a meeting. It had agreed that a subpoena would be a last resort because there had been no reason to believe that the President would not cooperate. The Committee was now meeting to consider the President’s response and to decide what its next steps were. The current meeting was therefore a direct result of the Committee’s resolution of 25 January.
Ms Mente said that the last paragraph of the Committee’s letter to the President was very clear. It said that the Committee would consider, and judge its satisfaction with, the President’s response. Now, upon receipt of the response, Members were not satisfied – the response did not explain the remarks that the President had made in the leaked recording. The letter had a different tone to the leaked recording, so perhaps he was attempting to express the point in a more “civil” way. Because they were not satisfied, Members wanted to meet with him so that he could clarify his response. She disagreed with Mr Hadebe that this constituted “playing the man.” The President had willingly given information, which had later leaked and which implied that he had knowledge to which the Committee was not privy. The Committee was not looking into the President’s ethical conduct – it was fulfilling its own mandate by investigating the depth of his knowledge of misuse of state funds.
She was opposed to the suggestion that the Committee should wait for the third part of the Zondo Commission report. The Committee should meet with the President and ask him to clarify the remarks he made in the leaked recording. That meeting could then inform the Committee’s next steps. In the leaked recording, the President spoke of falling on his sword over the information that he had – why would he need to fall on his sword over information that was already in the public domain? He had to clarify what he had meant. The Committee was not trying to threaten anybody, but it could obtain the full recording of the meeting if necessary. That way, it would have the full context in which the President’s remarks had been made, and the context could no longer be used as an excuse. The Committee could not simply brush off the matter and accept that the President knew nothing. He had to tell the Committee what he knew. The Committee’s task was not to decide whether the President had misconducted himself, but to follow up on the cases he spoke of in which public funds had been misused, to ensure that the funds were accounted for and that those responsible were held accountable.
Ms A Beukes (ANC) said that the Committee needed input from other stakeholders, such as the Auditor-General, to ensure that it conducted a holistic and comprehensive investigation. She thought that the Committee should wait for the third part of the Zondo Commission report, which could provide helpful clarification and prevent the Committee from duplicating work. However, the Committee could look into related matters while waiting for the report’s publication. It would be justified in calling the President only if other stakeholders provided evidence that the President had relevant knowledge which he had concealed. She also thought that the Committee should consider working together with other parliamentary committees and consider assigning a small team to work on the investigation.
Mr Hadebe said that, in the leaked recording, the President alluded to information that had been in the public domain since 2019, when the report of the High-Level Review Panel was published. The President had not, for example, mentioned any individuals’ names. He gave the President “the benefit of the doubt.” The President was a “man of integrity” and had signed a letter directing the Committee to the relevant public documents and to relevant sections of Zondo Commission testimony. He was doing this so that Members could understand exactly what he had been referring to in the leaked recording. It was not the President’s responsibility to rehash the contents of the report if Members did not want to read it themselves.
He said that, outside the Committee, Members were free to obtain the full recording and share it with the media, or to pursue the President’s conduct with the Public Protector. That was none of the Committee’s business. The Committee was not here to “play politics,” and it had to be insulated from political competition. He refused to allow it to be used as a “political football” or to serve certain narrow interests. The Committee’s task was to investigate the misuse of public funds. To this end, it had plenty of information at its disposal, including documentation, the legal opinion, the assistance of the Auditor-General, and, if necessary, joint meetings with the Joint Standing Committee on Intelligence. There was no reason to insist that the President appear before the Committee to repeat aloud what he had already signed his name to in writing. The President had ceased to be an appropriate object of inquiry for the Committee.
Ms Marawu said that she thought that all Members were proud of their integrity and that none of them had a political agenda. She repeated that the Committee had previously resolved, in the presence of legal advisers, to write to the President and then to meet with him in person if his response was not satisfactory.
The Chairperson said that in the past he had expressed the view that it would be beneficial for the Committee to “interact with” the President. In general, it was important for the legislature and the executive to share resources and information, and the President was the head of the executive. As part of its oversight, the Committee therefore needed to interact with the President on corruption, maladministration, and poor governance, all of which continued to characterise the public sector. He therefore believed that the Committee needed to meet with the President at some point. There was no need to be sensationalist or to subpoena him – the President and the Committee could simply have a discussion, about this and about any other matter that was related to the Committee’s mandate and of concern to it. The operative word was “discussion.” It was “inevitable” that this matter, given how it had evolved, required the Committee to meet with the President for a discussion. This was necessary because corruption was a critical threat to the country.
He said that he saw the President as a whistleblower in this case. Indeed, the President and the Committee had the shared aim of finding the “root cause” of financial mismanagement. As the President mentioned at the end of his letter, he was also the president of the ANC. The Chairperson had pointed out in the past that the Committee’s work was constrained because it did not engage directly with political parties. Political parties were also stakeholders in government and in public finances – for example, they deployed the officials who served in government. It was necessary to have “uncomfortable” discussions with relevant stakeholders, including political parties, law enforcement agencies, the executive, and the judiciary. However, these conversations must proceed on a basis of honesty rather than on the basis of a “political witch hunt.” He agreed with Mr Hadebe that the Committee should not, and should not appear to, play the man rather than the ball – “unless the man is the ball.” In this case, the President had certain information, and the Committee required clarification. The Chairperson also agreed with Mr Hadebe that the Committee should resist becoming a political player. Although Members were politicians and were deployed to the Committee by their parties, the Committee had always endeavoured to “rise above” political divisions.
He said that the Committee had to decide how to proceed. Members seemed to hold two opposite views, and he encouraged them to seek consensus. The final report of the Zondo Commission, to be released later that month, would deal with the SSA. The Zondo Commission had also implored Parliament to strengthen its oversight. There was a Public-Protector investigation related to the matter under discussion, and the Committee had to deal with that. And the Committee had to – and no doubt would – interact with the SSA. The question was how it would interact with the SSA, and what information it wanted from it. He guessed that the SSA’s financial records and audits would be a priority, and to that extent, the Committee would have to collaborate with the Auditor-General. Some Members had also proposed that the Committee should invite the President to appear before it. Members should note that the President had recently told the media that he would not object to meeting with the Committee. The Chairperson would put the proposals to a vote if necessary – Members should not talk in circles. This matter was important, but it was not the only matter that the Committee had to deal with, and it should not be prolonged unnecessarily. He invited Members to make proposals about how the Committee should proceed.
Mr Somyo said that he had already set out a proposal. His proposal had been that the Committee should follow the legal advice it had received and await the final report of the Zondo Commission. The report could then guide its next steps. What else did the Chairperson want by way of proposals?
The Chairperson replied that the Committee had always endeavoured to be “a meeting of minds,” and it had not reached consensus, particularly on the key question about its potential invitation to the President. Some Members categorically believed that the President should appear before the Committee, while others disagreed.
Ms M Lubengo (ANC) said that it was not a good idea to call the President before the Committee. The Committee should wait for the final report of the Zondo Commission before deciding its next steps.
Ms Mente said that the Zondo Commission and its reports were irrelevant to the matter at hand. Parliament would deal with the findings of the Zondo Commission as appropriate, and the Committee might rightly be tasked with investigating certain relevant findings as part of its regular oversight. However, that was a separate issue. The Committee was getting distracted by the issue of the Zondo Commission reports, which had nothing to do with its reasons for writing to the President. The Committee had not written to the President to ask him to explain the Zondo Commission reports, but to explain his remarks in the leaked recording and to identify those responsible for misusing public funds. That letter, and that question, was the basis of the current meeting. The Committee could not wait for the third part of the Zondo Commission report – it was irrelevant.
Mr Hadebe said that the legal opinion contained recommendations for the Committee’s way forward. The ANC agreed with those recommendations, and – although this was not ideal – it was prepared to defeat any rival proposals in a vote. There were clearly serious allegations about mismanagement of SSA funds. However, it would be helpful for the Committee to wait for the third part of the Zondo Commission report, to avoid duplication and to facilitate a holistic response. The Zondo Commission report was relevant because the commission was investigating the very same issues that interested the Committee. Moreover, waiting for the report would not mean that nobody could appear before the Committee. Indeed, the legal opinion suggested that the Committee might want to meet with other public entities, such as the Auditor-General, in the interim.
Mr Lees said that what was relevant was what the President knew or did not know. The SSA and other matters were secondary and were “clouding” the key question. The Committee had given the President an opportunity to explain his remarks in writing, but the time had now come for him to answer the Committee’s questions in person. That was the only way forward – the President could not be seen to be “obfuscating” or failing to provide information requested by Parliament. The DA was strongly committed to this approach.
Ms Van Minnen said that the current meeting had, in general, involved much “obfuscation.” She agreed with Mr Lees and Ms Mente that the President should be invited to meet with the Committee. Mr Dirks’s original letter had alleged that the Zondo Commission’s work might have been undermined by the fact that the President’s remarks in the leaked recording were incongruous with his testimony to the commission. It was also possible that the Political Party Funding Act had been infringed. Therefore, in terms of its mandate, the Committee was obliged to meet with the President.
Ms Marawu maintained her earlier position that the President’s response was not convincing. The Committee had direct questions for the President, not questions for the Zondo Commission. Therefore, although the Zondo Commission report might well be helpful to the Committee at a later stage, there was no need to wait for its publication.
Ms Tolashe said that the meeting was becoming unnecessarily long. The Chairperson had asked Members to find consensus, but consensus appeared impossible – Members held firm and incompatible views. The Committee had now reflected at length and the competing proposals should be put to a vote. The discussion was becoming repetitive and other Members’ contributions had not changed her mind.
Ms B Swarts (ANC) agreed that Members could continue speaking indefinitely and that the Committee should vote on the proposals.
The Committee voted on the proposal to invite the President to appear before it to make oral representations and answer questions about issues emanating from the leaked recording and his written response. The DA, EFF, and ATM voted in favour of the proposal, and the ANC against. By a 6-4 majority, the Committee resolved not to extend an invitation to the President.
Ms Mente said that the EFF would explore other avenues for dealing with the matter. The President was being “shielded from accountability” by the majority party.
Mr Hadebe proposed that the Committee should accept the legal opinion as the basis of its project plan for the matter going forward. That should also be put to a vote so that the Committee could be certain about the approach it had resolved to take.
The Chairperson said that the leaked recording had brought up various issues which would require the Committee’s attention. He asked Members to give him, the Committee secretariat, and the legal advisers some time to put together a proposed framework for dealing with the matter. The legal opinion was quite broad, and Members had expressed their own views about how to proceed, so those elements now needed to be consolidated into a concrete roadmap. The proposed framework could be presented to the Committee by the following week.
Mr Hadebe said that it would be prudent for the Committee to make a conclusive determination about how it would proceed, and not only to vote on the one proposal about the President’s presence. That proposal had been defeated, but that should not be taken to mean that the matter had reached its conclusion, which it had not. The Committee should therefore adopt the legal opinion as the basis of its approach. The key recommendation of the legal opinion was that the Committee should wait for the release of the third part of the report of the Zondo Commission, which would guide its next steps.
The Chairperson said that the legal opinion presented a variety of options and did not itself constitute a plan. The Committee had made a resolution about the President’s presence, but it had not otherwise decided how to move forward. If it waited for the Zondo Commission report, as proposed by the ANC, what did that entail and what would it do in the interim? A roadmap was required to “operationalise” the legal opinion. The roadmap should include Members’ proposed action steps and should consider such issues as the Public Protector’s investigation and the Committee’s proposed engagement with the Auditor-General about the finances of the SSA. His proposal was that he and the Committee secretariat should present such a roadmap to Members on 23 February.
In reference to Mr Hadebe’s proposal, Ms Mente said that the standard practice of the Committee was not to “adopt” legal opinions. The Committee heard and noted legal opinions but did not adopt them as guiding documents.
The Chairperson said that the roadmap would incorporate Members’ views, as expressed in the current meeting, as well as the advice in the legal opinion. As usual, Members could also send further suggestions about measures they thought should be included in the roadmap. The Committee was “venturing into new territory” – for example, it would have to decide whether to close its meetings with the SSA on confidentiality grounds.
Ms Tolashe said that whether or not the Committee used the word “adopt,” it was agreeing to operationalise the legal opinion. The legal opinion would inform how it moved forward.
Mr Hadebe said that “we” adopted or supported the legal opinion as the basis of Committee’s roadmap in dealing with this matter. The only recommendation in the legal opinion with which “we” disagreed was the recommendation to establish a subcommittee.
The Chairperson cautioned Mr Hadebe not to “complicate” the issue.
Ms Mente objected to Mr Hadebe saying that “we” supported the view he had put forward.
Mr Hadebe replied that Members who did not support his view had the right not to support it. When the Chairperson asked him not to interject, he pointed out that he was responding to somebody else, Ms Mente, who had interjected.
The Chairperson reminded Members that, despite their disagreements, the Committee’s work had to continue and Members were “stuck with each other” until the end of the sixth Parliament. Exercising “democratic dictatorship,” he decided that a draft roadmap would be prepared and presented to Members early the next week. Members could make comments on the draft if necessary, and the Committee would discuss it and reach consensus as it always had done on such matters.
The meeting was adjourned.
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