Constitutional Court judgement on removal of a Chapter 9 institution office-bearer; Terms of Reference: adopted; Committee Programme

Committee on Section 194 Enquiry

22 February 2022
Chairperson: Mr R Dyantyi (ANC)
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Meeting Summary

Video

Report of the Independent Panel on the Public Protector

Speaker of the National Assembly v Public Protector and Others; Democratic Alliance v Public Protector and Others (CCT 257/21; CCT 259/21; CCT 257/21) [2022] ZACC 1 (4 February 2022)

Public Protector Correspondence to Parliament (confidential)

In this virtual meeting, Parliament’s Constitutional and Legal Services Office briefed the Committee on the Constitutional Court judgement concerning its rules on the removal of a Chapter 9 institution office-bearer. The Constitutional Court ruled that there was no rational basis to limit full legal representation based on the argument that a Chapter Nine office bearer should be held personally accountable. The Court found that procedural fairness required that full legal representation be allowed to assist the Chapter Nine office bearer with witnesses and questioning. The Constitutional Court ruled that the Committee’s rules should allow for full legal representation. The Constitutional Court then ruled on a judge being able to serve on the panel. The Constitutional Court found that the Western Cape High Court erred in its evaluation of the situation. The Constitutional Court found that the Committee’s rules of a judge serving on an independent panel was constitutional. The Constitutional Court found nothing wrong with the Committee’s process up until this point.

Parliament’s Constitutional and Legal Services Office indicated that the aim of the Terms of Reference was to give some clarity as to how the process would unfold going forward. The presentation of the Draft Terms of Reference discussed the background, legal framework, objectives of the enquiry, the evidence leader, public participation, venue for meetings, timeframes and resources. The objective of the Enquiry was to assess the charges contained in the motion in order to determine whether the Public Protector was incompetent and/or had misconducted herself, and report to the National Assembly on its findings and recommendations.

Members were informed that a letter had been sent from the Public Protector’s legal representatives to the Speaker of the House and the Chairperson stating that she was planning on filing a rescission application against the Constitutional Court’s ruling. On the basis of that intended rescission application, the Public Protector had requested to the Committee that the process be put on hold pending the determination of the rescission judgement. As the legal situation stood, there was no such application yet. Members were advised that there was no legal impediment for the Committee to continue. The rescission application had not been filed. From a litigation point of view there was nothing before the Committee other than a declaration of intention. There was therefore no legal impediment to the work of the Committee.

The Members of the Committee were unanimous that there was no application at this point. The Committee could proceed with its work as there was no impediment. The Members believed that the Committee should not accede to a request of the Public Protector on the basis that an application would be filed. There was absolutely nothing on which the Committee would take decisions which would have an impact on what the Court found. The Members noted that the Draft Terms of Reference was going to guide the Committee’s work and that process was going to be important. The Committee agreed with the Chairperson that this was pioneering work. It took oversight to a new level.

The Members said that the Terms of Reference was a reasonable and clear document. The issue of public participation was raised. Legal services had presented some proposals and options that the Committee could follow. The Members wanted more clarity, specifically in terms of the way in which public participation would be done, either written presentation or oral submissions. It was also raised that the Members needed to be cautious about anticipating the outcome of this enquiry process. The Committee should not be concerned about whether the outcome may require a two-thirds majority or not. The Committee should go into the enquiry objectively. This process was an inquiry process and not a trail.

The Committee adopted the Terms of Reference and its programme. 

Meeting report

The Chairperson welcomed everyone to the meeting. He stated that the Committee had begun its work in 2021, held wo meetings and then had to pause its proceedings. The Committee’s last meeting was on 28 July 2021. In that meeting the Committee discussed several items including the Terms of Reference. That meeting was concluded with an action that the Committee was going to come back and adopt some of the things that were discussed. Two days after, the Western Cape High Court made a judgement that affected the Committee’s process. Respectfully, the Committee observed that process. The Speaker had to become involved in the process in the form of an appeal. The Committee was here today because the highest court in the land had attended to the matter that were raised in the appeal by the Speaker as well as the Democratic Alliance (DA) in relation to the Cape High Court judgement. The Committee was going to get a summary of what that judgement entailed in terms of the item on the agenda so that all of the Members were on the same page. The Committee was also going to get a presentation on the Draft Terms of Reference. The draft had been sent to the Members. He urged Members to apply their minds on both these items, especially on item two as the Draft Terms of Reference was important. The Draft Terms of Reference was going to guide the Committee’s work and that process is going to be as important as whatever outcome the Committee comes up with at the end. The Committee was also going to discuss the revised Committee programme that had also been sent to the Members. The last item would be for the Committee to consider the minutes of 28 July.

The Chairperson welcomed Mr Herron as a new member of the Committee.

The Chairperson invited the legal team to lead the Committee through the presentation on the first item on the agenda. It was important as a Committee that it reflected on the judgement.

Briefing by Parliament’s Constitutional and Legal Services Office (CLSO) on the Constitutional Court judgement and proposed way forward

Dr Barbara Loots, Parliamentary Legal Advisor, CLSO, said that two issues impacted the Committee process when it left the High Court stage. One was about whether full legal representation should be allowed to a Chapter Nine office bearer. The other was whether a judge could serve on a panel to do the prima facie assessment. The High Court found that the limitation that was placed on the right to legal representation was irrational. For a process to be reasonable and procedurally fair there needed to be flexibility to allow full legal representation. The High Court found the Committee’s rules lacking in that regard. There was therefore a challenge on that issue. The second point the High Court looked at was the desirability of a judge to serve on the panel. The High Court found it not desirable for a judge to serve on that independent panel. The High Court was of the opinion that it offended the principle of the separation of powers. When the Committee went to the Constitutional Court it was to gain clarity on those two points. The Constitutional Court agreed with the High Court on the issue of full legal representation. The Constitutional Court said that there was no rational basis to limit a full legal representation based on the argument that the Chapter Nine office bearer should be held personally accountable. The Court found that procedural fairness required that full legal representation be allowed for that person to assist the Chapter Nine office bearer with witnesses and questioning. However, the Court noted that allowing that did not absolve the Chapter Nine office bearer from responding in person to questions posed by the Committee. That person would still need to account personally but would have the assistance of full legal representation in the workings and processes of the Committee as it went through the enquiry. The Constitutional Court ruled that the Committee’s rules should allow for full legal representation.

Secondly, the Constitutional Court ruled on a judge being able to serve on the panel. The Constitutional Court found that the High Court erred in its evaluation of the situation. It was not a question of desirability but a question of permissibility. In looking at desirability the High Court made a subjective evaluation when it should have made an objective evaluation. The separation of powers principle in the Constitution was not absolute. There were certain overlaps but that was also why there were checks and balance. The fact that the judge needed to consult with the Chief Justice meant that the separation of powers was protected and not infringed on. The Constitutional Court also noted that a judge was well placed to perform this function because of the lack of bias and independence that was associated with the judiciary. The Court found that the Committee’s rules as far as a judge serving on an independent panel was constitutional. The Constitutional Court found nothing wrong with the Committee’s process up until this point.

In the Terms of Reference, the Committee needed to make allowance for the full legal representation and how that would impact on the Committee’s work and the processes going forward.

Members would have seen in the news today that there was a letter that out from the attorneys of the Public Protector. The letter stated that she was planning on filing a rescission application against the Constitutional Court’s ruling. As the legal situation stood, there was no such application yet. There was no legal impediment for the Committee to continue. The highest court in the land had given a judgement and the Committee would be following that judgement. There may have been some developments this morning that she was not aware of due to other responsibilities. She asked her litigation senior, Adv Njikela, to assist on the latest developments and provide further clarity.  

Adv Siviwe Njikela, Senior Parliamentary Legal Adviser, CLSO, said that the previous day there was a letter that was sent to the Speaker, and the Chairperson was copied in that correspondence. The Public Protector made her intentions very clear that she intended to apply to the Constitutional Court for a rescission of certain parts of the judgement or order of the Constitutional Court. On the basis of that intended rescission application, she requested to the Speaker and the Committee to adopt the same attitude that it adopted when the matter went to the Constitutional Court for an appeal. The Committee had made a sensible decision by deciding to put the process on hold until the Constitutional Court ruled on the issue. Since there was an application that would be pending soon, the Public Protector asked the Committee to consider putting this process on hold in reference to that rescission application. The legal team responded to that letter. As far as the CLSO was concerned there were no legal obligations on Parliament to stop the process at this moment since there was no application or interdict to stop the process. Just over an hour ago the CLSO received another response from the Public Protector’s legal team. It persists with that proposal that the process be put on hold pending the determination of the rescission judgement which had not been filed. In the letter yesterday, it was indicated that the rescission application would be filed in ten or fifteen days. From a litigation point of view there was nothing before the Committee other than a declaration of intention. There was no legal impediment to the work of the Committee. It was up to the Committee to consider the correspondence and make a decision as it was done previously as to whether the Committee would like to give that process an opportunity to unfold before it proceeded on the basis of the Constitutional Court Judgement. Those were the recent developments between yesterday and today.

Discussion

The Chairperson invited the Members to provide comments on the presentation. The Committee had just received a summary of the judgement so as to put all the Members on the same page. The legal team also raised the issue of a request. There was an intention that a possible rescission was in the pipeline, in ten to fifteen days. The request was that the Committee waited ten to fifteen days for the application to be done and then the Committee would follow that process. It was clear from the presentation that as things stood, the highest court had made a judgement on this and there was nothing stopping the Committee from proceeding. There was no interdict as well as no application. He invited Members to briefly reflect on this matter before the Committee moved onto the next item.

Prof A Lotriet (DA) said it was very clear that there was no application at this point. She believed that this Committee could proceed with its work. There was no impediment. She did not believe that the Committee should accede to a request on the basis that an application would be filed. The Committee should proceed. Looking at the agenda it had this afternoon, there was absolutely nothing on which the Committee would take decisions which would have an impact on what the Court found. She proposed that the Committee proceed with the meeting.

Mr B Herron (GOOD) agreed with Prof Lotriet that the Committee should proceed. A rescission application would usually suspend proceedings like this. In the absence of a real application, the Committee should proceed. If the Committee adopted the proposed programme the real work started at the end of March and that gave the Public Protector plenty of time to bring a real application.

Ms D Dlakude (ANC) appreciated the clarification from legal services with regard to the intention of the Public Protector to apply for the rescission of that judgement of the Constitutional Court. Given the clarification by the legal services, the Committee should proceed with the work of Parliament as it was expected to do. The Committee should adopt the programme as well as the Terms of References so that other work could start to unfold.

Ms H Denner (FF+) said that she was covered by the previous speakers. She agreed that as there was no rescission application filled yet that the Committee proceed as it had decided to proceed. The Committee should adopt the terms of reference until there was eventually a rescission application filed.

Mr B Maneli (ANC) said that the Committee should proceed. The conditions under which the Committee convened still prevailed. He noted that there was clearly an intention and depending on the counsel that may be received in that period, anything else could happen. This Committee should proceed on the basis of the conditions under which it was convened. The decision of the Court would allow the Committee to proceed, and it should proceed as such.

Mr A Shaik-Emam (NFP) said he accepted that if a rescission application was made it would affect the Committee. At this stage the Committee had to admit that there was no rescission application. The programme, as the previous Members have said, would not have an impact on the outcome of what was going to happen. By the time the Committee implemented this programme an application would have had been made if it was intended to be made. He was not sure why there was a delay in making the application timeously. He suggested that the Committee proceed with the programme for now. If the application for rescission was made, then the Committee would have to relook at the matter.

The Chairperson said that the Members had spoken very clearly on the issue. He asked the Committee to move onto the next item on the agenda. The Committee would now be looking at its internal work and this matter was very important. He invited the legal team to take the Committee through the Draft Terms of Reference which had also been sent to the Members.

Briefing by Parliament’s CLSO on the Draft Terms of Reference in respect of the Section 194 Enquiry into the removal of the Public Protector, Adv B Mkhwebane

Ms Fatima Ebrahim, Parliamentary Legal Advisor, CLSO, briefed the Committee on the Draft Terms of Reference in respect of the Section 194 Enquiry into the removal of the Public Protector. The legal team’s advice was that the rules were not prescriptive to the Committee as to how it was to perform its task. The rules were not unique to the office of the Public Protector or this motion. The same laws would apply to any other person who was the subject of a future motion of removal. Therefore, the aim of the Terms of Reference was to give some clarity as to how the process would unfold going forward. The presentation of the Draft Terms of Reference discussed the background, legal framework, objectives of the enquiry, the evidence leader, public participation, venue for meetings, timeframes and resources.

Legal framework

Section 194 of the Constitution sets out the framework for the removal of the PP, the Auditor-General and Members of commissions established in terms of Chapter 9 of the Constitution from office. On 3 December 2019, the National Assembly adopted new Rules setting out the process for the removal of office-bearers in institutions supporting constitutional democracy. These institutions include the Office of the PP. The proceedings of this Committee will be conducted in accordance with the provisions of the Constitution and the NA Rules.

Objectives of the Enquiry

The objective of the Enquiry is to assess the charges contained in the motion in order to determine whether the PP is incompetent and/or has misconducted herself, and report to the NA on its findings and recommendations.

Format of Enquiry

The Enquiry is a constitutional process to establish, on the basis of evidence presented, whether the PP is incompetent and/or has misconducted herself. It is neither a judicial or quasi-judicial process, nor is it an adversarial process. The Enquiry in an inquisitorial process, informed by Parliament’s constitutional oversight mandate, and the principle of fairness shall be paramount to the manner in which the Committee conducts the Enquiry. The Committee will utilise the services of an external Evidence Leader to assist it subject to the provisions of paragraph 6.

Public participation and transparency

Section 59 of the Constitution creates an obligation on the NA to facilitate public involvement in its committee processes. Whilst the NA Rules do not dictate the manner in which public participation must be conducted, it is necessary that a reasonable opportunity is offered to Members of the public and all interested parties to be informed of the work of the Committee and to have an adequate say. Meetings of the Committee will accordingly be conducted in open and, whenever possible, broadcasted on Parliament TV and on its social media channels. The Committee must determine the manner in which it will facilitate public participation. The purpose of public participation will not be to consider any personal views that Members of the public may have with regard to the PP, but to call for evidence that may assist the Committee in fulfilling its mandate. As such, only submissions which relate to the charges in the motion will be considered.

Resources for purposes of the oversight Enquiry

An external Evidence Leader, other experts as may be determined by the Committee and a dedicated team of officials, including committee secretaries and assistants, a researcher, content adviser and legal advisers, will support the Committee under the direction of the Chairperson.

Discussion

The Chairperson noted that what had been presented would be the Members’ footprint and the legacy of work that it was going to do. This was a pioneering process. It had never been done before. He invited the Members to make contributions that would assist the Committee in enriching this process. The process needed to be tight and beyond questioning. The Members were free to speak their minds in assisting the Committee to get a proper process.

Mr G Hendricks (Al Jama-ah) agreed with the Chairperson that this was pioneering work. It took oversight to a new level. The Committee knew that a two-thirds majority was required to remove the Public Protector. Surely consideration must be given to whether there was a reasonable chance or success that a two-thirds majority would be achieved. If a two-thirds majority was not achieved, then was all of this a waste of time? Parliament would be putting in a lot of resources. It was going to take a lot of time. The Committee was now up against legal representatives that would do cross-examination. It would be even more dramatic than the hearings that were recently held for the election of a Chief Justice. He did not know if he was out of order or whether it was a reasonable question. Was there a reasonable chance that there would be a two-thirds majority? He discussed the EFF, the DA and the ANC coming together and discussing whether it was a prima facie case and how they were going to exercise their vote. If there was no reasonable chance to get a two-thirds majority, then was the Committee not wasting its time?

Prof Lotriet said that she did not have a real problem with the Terms of Reference. It was a very reasonable and clear document. She had a question on public participation. Legal services had presented some proposals and options that the Committee had. She wanted more clarity specifically in terms of the way in which it would be done, either written presentation or oral submissions. Other witnesses would submit sworn statements and would have to take the oath or affirmation. That would also give some weight to the evidence presented to the Committee. What would be the case in terms of the public participation? She was concerned in managing the public participation process and not hearing any personal views that Members of the public may have with regard to the PP. She agreed that the process was ground breaking, the Section 194 process that the Committee was embarking on. She thought that the Committee should also learn from what happened in Parliament with the Eskom Enquiry. That was a very good example for the Committee to follow.

Ms Dlakude welcomed the Terms of Reference as it had been presented. It was a working document which the Committee believed would guide it as it embarked on this process. It would be the first of its kind since the dawn of democracy, that the Committee would be doing an enquiry into the fitness of the head of a Chapter Nine Institution to hold office. The Committee was to embark on a fact-finding mission. The Committee did not have a predetermined outcome. The Terms of Reference would guide the Committee in ensuring that that the material that was presented to it was what it was going to use. She suggested that this document be subjected to legal scrutiny so that all the gaps were closed. When the Committee started with doing the work of the enquiry then nothing should stop it. She proposed adopting the Terms of Reference as it was, subject it to legal scrutiny. It would assist in ensuring that other services were procured. The services of the evidence leader would be procured as soon as the Committee adopted the Terms of Reference.

Mr Herron responded to the comment from Mr Hendricks. The Members needed to be cautious about anticipating the outcome of this process. The Committee should not be concerned about whether the outcome may require a two-thirds majority or not. The Committee should go into this objectively and on the understanding that the outcome may not require any action by the National Assembly. It was inappropriate to be worried about the two-thirds majority. This process was an inquiry process and not a trail. As the Terms of Reference stated that it was an inquisitorial process rather than an adversarial process. The Committee needed to set the right tone that this process was an enquiry and not a trial. The Terms of Reference stated that the Public Protector or her legal representatives may cross-examine any witnesses called by the Committee. While the Committee will question any witnesses called by the Public Protector. Unless the wording arose out of the Constitutional Court judgement, he proposed that the word should be ‘question’ and not ‘cross-examine’, wherever ‘cross-examine’ was used. Cross-examine brought the Committee into an adversarial space in tone. To be consistent, if the Members were to question the witnesses presented by the Public Protector then the Public Protector should question and not cross-examine witnesses called by the Committee.

Ms Denner said she wanted to gain idea on what constituted a reasonable timeframe?

Mr X Nqola (ANC) said that he was removed from the meeting after the presentation on the judgement. The Committee welcomed the judgement and the discussion of the correspondence. When the matter was before the Cape High Court the Committee was under no obligation to stop the process until the Court declared so. Even in this scenario, the Committee should proceed with the enquiry. The issue of fairness should be addressed accordingly. The Committee will proceed until there was a court declaration that it should halt the process. He discussed the Terms of Reference. He noticed two things. He discussed the balance on the legal representation of the Public Protector, the ‘audi alteram partem’ rule, the fairness that they were not made to usurp the role of the Public Protector to account to Parliament and the people of South Africa. He noted the issue of the evidence leader. The evidence leader did not usurp the role of Members of Parliament from proceeding with the inquiry as they were obligated to by the Constitution. Those were the parts that he noticed. The evidence leader did not take away from the fact that Members of Parliament would still perform their own duties. Although the Public Protector had legal representation, the Public Protector was still placed with an obligation to answer to the issues at hand. He moved to support the adoption of the Terms of Reference. He concurred with Ms Dlakude that Parliament Legal Services check if there were any gaps in the Terms of Reference. There was the issue of meetings and the venue. He proposed that the Committee prioritise physical meetings unless there were circumstances that prevents the Committee from having a physical meeting.

Ms M Tlhape (ANC) said that the Committee was venturing in a new terrain. The Committee did not have any baseline measurement and did not have any reference. She agreed that the Terms of Reference be subjected to legal opinion so that the Committee had a water-tight document for this process. She noted the comments made about the process being inquisitorial. In her opinion, the process was inquisitorial and adversarial. She supported the adoption of the Terms of Reference so that the work could start. She supported the view that this document also be a living document. As she noted before, the Committee did not have any baseline or reference. Based on everything that had been said here, the Committee needed to be able to navigate everything and the Terms of Reference was the only compass that the Committee had to navigate this new terrain. As the Committee tried to navigate all of the issues that Members raised it should be empowered and not have any impediment. She supported the adoption of the Terms of Reference.

Mr Shaik Emam said that he wanted the Committee to be very cautious when it pre-empted the outcome of an enquiry of this nature. It was a matter of concern if Members were already looking at the two-thirds majority and Members that wanted a certain outcome. The Committee needed to be very careful because this was supposed to be an objective exercise and enquiry. Only after the Committee went through the entire process and reach the findings, would the Committee be able to deal with recommendations. He wanted a point of clarity. Should it be deemed necessary to request further documentation for a particular individual, was there a timeframe for that? Should it happen in the beginning or as the enquiry went on, as it was necessary? He wanted clarity on that matter because it might become necessary in order to reach an outcome.

Ms J Mananiso (ANC) thanked the CLSO for providing the Committee with a guiding document. She had been partly covered by the previous Members. This document needed to be a living document as the Committee went on through the process. She discussed the issue of pre-empting outcomes. As Members of Parliament, they would not be doing justice, both to the party involved and the Committee, to pre-empt any outcomes. As constitutionalists, the Members needed to ensure that the process, from start to finish, was fair. When the Committee dealt with Constitutional matters, consistency was key. As the Committee got into this particular process, it needed to ensure that everything that it did was consistent, and everybody was treated equally.

Mr K Mileham (DA) said that he had a comment and then a question of clarity. His comment related to the evidence leader and the importance of that evidence leader in building a record of the case. If Members were relied on to drive this enquiry, then the Committee would end up going all over the place. An evidence leader would provide coherence, consistency and basically package the evidence for the Committee in a manner that was understandable and utilised to reach some kind of decision. He needed clarity with regard to what was meant by obtaining a legal opinion on the Terms of Reference? The Terms of Reference was drafted by Parliamentary Legal Services. What was it that the Committee was looking for a legal opinion on? Was there an element of it that the Committee was not clear about? Was there something that the Committee wanted to discuss further? What was another lawyer or advocate going to say that Parliamentary Legal Services had not said in that document? The Committee also needed to be cautious about saying that this was a living document. Once the Committee adopted the Terms of Reference, that became the Committee’s rules for engagement and how the Committee would proceed with this matter. If the Committee said that it was a living document and that it was subject to change down the line, then the Committee was saying that it was open to amending the rules down the line. The Committee needed to be very cautious about using words like living document. Once the Committee adopted the Terms of Reference, it needed to be binding on the Committee, on the witnesses and on the Public Protector.

Mr B Holomisa (UDM) said that some Members were not Members of this Committee. He requested that those Members be given some documents. Documents which came from the Public Protector, which indicated how many cases she presided over since she came into that office. Of those cases, how many had been challenged by judicial review? Of those cases, how many had she won and lost? Out of those cases which she recommended that the Government deal with, how many State Departments implemented those findings? When the Members approached this debate it was not going to just look at one individual. The Committee wanted to approach the enquiry holistically. Had she made any suggestions to the relevant Portfolio Committees in the past, especially around the beefing up of the Public Protector in terms of appointing the relevant staff? When it was said that she was an intelligence agent, did that mean that if one had been working for the State Security Services after 1994 that that person could not work for any other Department or work for the Government? He wanted clarity on those matters.

Ms Ebrahim responded to Mr Hendricks’ question. The rules specifically provided for a process where a panel was established in order to determine whether there was prima facie evidence or not. The rules only allow where there is a prima facie case to be answered that it would proceed to the next stage, if the Assembly so agreed. That was indeed done. The purpose of this process was to consider that evidence very closely and to determine whether there was merit in the motion or not. What the vote outcome was going to be was irrelevant. The Committee needed to show that it had followed a rational process in making its ultimate recommendation. She had mentioned in her presentation last year that there was a political element because it ultimately went to the House for a vote. The fact remained that this Committee was seized with considering that motion and then making a recommendation in respect of that motion, whatever that recommendation may be at the end.

 She responded to Prof Lotriet’s comment. It was also the legal team’s concern that the Committee does not open a ‘Pandora’s box where every Tom, Dick or Harry’ that knew nothing about the substance of the matter was giving their input. The Committee would not want to be seized with that. Certainly, it needed to be very narrow. Once it received submissions, nothing prevented the Committee from then considering whether it wanted those persons to appear before it as witnesses or otherwise to submit sworn written statements. That could be dealt with at the time. It might not be necessary for everyone to give a sworn statement. Members would recall that during the Eskom Enquiry process some of the public participation just took the form of leading academics coming to the Committee and explaining certain legislative issues. Likewise, here there may be academia interested in highlighting some of those Constitutional and legislative obligations and functions of the Public Protector in order to assist the Committee in making its determinations. Certainly, the intention was not to open that ‘Pandora’s Box’. The Committee would be very careful in how it crafted any invitation for participation. Nothing prevented the Committee from doing targeted invitations. She responded to Mr Herron’s question on the terminology and the use of the word ‘cross-examine’. The first draft of the Terms of Reference which was done shortly after the meeting that took place last year and did not refer to cross-examination at all. It was the Constitutional Court that raised it in the context of the Public Protector’s legal representative. That was why it was added. She was more than happy to soften that wording. There was consensus on the fact that this was not an adversarial process at all. She indicated that the reason for that use of terminology was simply because of the Constitutional Court referring to it.

She responded to Ms Denner’s question about what a reasonable timeframe would be. That was difficult to determine without a consideration of all the facts before the Committee. What would be reasonable in one situation may not be reasonable in another situation. There were many things that were going to impact a process like this. For example, the number of witnesses that the Committee may have. It may be that there were no witnesses that the Committee wished to call. That would make the process a little quicker. It may be that the Public Protector had a long list of witnesses that she wished to call which may then lengthen the process. Similarly, were there going to be objections to the way things unfolded. All of those things were going to impact how the Committee dealt with it. Reasonableness at every stage can be considered. There was a question later on where a member asked about reasonableness in terms of other timeframes when the Committee gave the Public Protector a chance to respond. That would also depend at the time on the nature of the questions and the nature of what the Committee was asking someone to do. When the ultimate audi was provided to comment on the draft report it would be necessary for the Committee to consider the length of the draft report, how detailed it was, and all of those would influence the time that the Committee decided to afford the Public Protector. There needed to be fairness regardless of what timeframes the Committee determined as the process unfolded.

She responded to Mr Holomisa’s question which he had raised in a previous meeting as well about various bits of information that he would like the Committee to consider and to ask the Public Protector to provide the Committee with this information. Once an evidence leader was on board the Committee could determine how many of these things could be dispensed with on paper. Instead of presenting these as oral questions because it may be difficult given the nature of the questions for the Public Protector to provide an oral response when she was on the spot, nothing would prevent the Committee from sending formal correspondence asking for a response on all of the questions that Mr Holomisa had raised. She had made a note of those questions. When the legal team reached that stage, if the Committee agreed, it would ensure that those questions were put to the Public Protector so that it had that information going forward.

She discussed the Terms of Reference. The Terms of Reference was drafted by the legal team and subjected to internal scrutiny. Members were at liberty to request that the Terms of Reference be looked at by external legal advisors if they wanted to. The process was new for the legal team as well. The legal team was not working off a template where it had a Terms of Reference that Parliament had already adopted in a similar process. There was no similar process. What the legal team tried to do was ensure that fairness was paramount and to be generous in the way it drafted the document. Secondly, the legal team took the decisions of the Committee as per the last meeting and ensured that it captured those decisions. The legal team relied on the Committee for guidance whether it wished for the legal team to seek external advice on the draft or not. The Committee needed to bear in mind that the Constitution said that Parliament had the right to determine its processes. The reason the legal team had initially advised to have a Terms of Reference was to make it easier for the Committee to navigate this new space as it went forward. She was not sure what the purpose would be. She would prefer if Members raised particular issues in the Terms of Reference that it would want the legal team to get advice on.

The Chairperson asked what in the Terms of Reference was prone to be challenged.

Ms Ebrahim said that the legal team had tried hard to ensure that it was beyond reproach and that it was completely fair. That was the starting point from the draft. There was nothing that jumped out to the legal team. There may be the question of whether the Terms of Reference must be provided to the Public Protector for comment. The legal team’s view was that it should not be. It was a Constitutional imperative of the Committee to determine its own procedures which is exactly what the Committee was doing. All the rules required was that the process was fair and reasonable. She did not think that there was any element of the Terms of Reference that was not reasonable. It went beyond what could ordinarily be expected. For example, it ensured that there was an audi on the draft report. Unless Members had something specific that it wanted the legal team to consider more closely and to seek external legal opinion on, the legal team was positive that the document was fair as it was in its current form.

The Chairperson asked if there were any follow-up questions from Members. He discussed the time allocation and set time of Members asking questions. Was that to be included in the Terms of Reference? If that was not specified, the process could be dragged on forever. Issues of unlimited time needed to be avoided. In terms of the process, was it necessary to focus on the issue of attendance of Members? If a member missed a lot of evidence and came in at a later point of decision making was there not a challenge there? The issue of quorum was taken as how the Parliamentary Committees worked. Did that need to be reflected in the Terms of Reference? Was the Committee not too generous in section 4.5? He asked for her quick responses.

Ms Ebrahim said that much of what the Chairperson had raised was procedural issues in respect of how the meetings were going to be managed. The normal Assembly rules still applied to this Committee notwithstanding that the Committee intended adopting a Terms of Reference. She trusted that those issues would be managed as and when they arose. It would be important that the Chairperson managed the process in such a way that it was reasonable, and it was fair to everyone involved. The issue of attendance in reference to decision making was a procedural issue as well. That could be managed procedurally.

The Chairperson said the suggestion was for the Committee to adopt the Terms of Reference. He asked for the Members opinion on the matter.

Prof Lotriet said that the Committee should adopt these Terms of Reference. The Committee had been informed and the Constitutional Court had indicated that Parliament had the right to decide on its own processes. The legal team has made absolutely sure that all the elements of natural justice adhered to. It was up to Parliament to decide on its internal procedures and rules.

Ms Dlakude seconded the adoption of the Terms of Reference as they were presented.

Mr Hendricks said that he was happy with the Terms of Reference. The Committee was going to grapple with the fact that the process must not be adversarial when it was started by a motion by a political party that the Public Protector should be fired. He did not know how that political party was going to deal with it? The political party that put forward the motion was quite decisive that it wanted her fired. He did not know how the political party was going to traverse the Terms of Reference which said that the process must not be adversarial. They needed to move away from their position which they articulated to the nation, that the Public Protector must be fired, and now had to have an open mind. He felt there would be some difficulty for the party that proposed the motion now to suddenly adopted a different stance. He supported the Terms of Reference.

The Chairperson said that the Committee would leave those matters to the House for debate. The Terms of Reference were duly adopted. The Committee moved to the next item which was the consideration of the draft programme of the Committee.

Consideration and adoption of the Draft Programme for Committee on Section 194 Enquiry

The Committee Secretary, Mr Thembinkosi Ngoma, presented the draft programme of the Committee and went through it, page by page. The only thing that was changed about the draft programme was that the dates had to be changed as the Committee had to halt proceedings for other processes to unfold.

The Chairperson said that the draft programme had been sent to the Members. He invited the Members to make comments on the presentation. The programme was a living document because there might be changes to it as the Committee went through the process of identifying an evidence leader and the programme might change here and there. It was therefore a living document. He invited the Members to make comments. Were all the Members happy with the draft programme?

Ms Dlakude moved for the adoption of the draft programme.

Mr Mileham seconded the adoption of the draft programme.

The Programme for the Ad Hoc Committee on Section 194 Enquiry was adopted.

Consideration and adoption of Committee minutes of Wednesday, 28 July 2021

The Chairperson took the Committee through the minutes, page by page. He asked if there were any corrections to be made?

Mr Maneli noted there was a point in the minutes that the meetings should be hybrid. The Committee had just adopted the Terms of Reference. He thought it was important for consistency that the Terms of Reference leaves that determination to the Committee, whether it would prioritise physical or hybrid meetings. That contextualisation was also informed by the fact that at that time the country was at a particular level of Covid regulations. It was important to make that note so that it did not look like the Committee had made two separate decisions. He agreed with the minutes.

Ms Mananiso moved for the adoption of the minutes

Mr Maneli seconded the adoption of the minutes.

The Chairperson said that the minutes were duly adopted. That was the last item of the meeting. He thanked the Members for their participation and guidance in this important meeting. The Members would be kept informed and in touch about the intentions that were voiced from the Office of the Public Protector. He encouraged the Members to stay objective in this process and for the Committee to play its oversight role. He wanted the Members to relegate all other matters that would enrich debate to the House so that the Committee stayed focus on the task at hand. The Members would greatly assist him if they stayed on course in directing this enquiry in a proper. He thanked the legal team for their work and thanked all of those in attendance for joining the meeting.

The meeting was adjourned.

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