Litigation relating to the Enquiry & Appointment of Evidence Leader: Parliament’s Constitutional and Legal Services Office briefing

Committee on Section 194 Enquiry

29 March 2022
Chairperson: Mr R Dyantyi (ANC)
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Meeting Summary

Video

Report of the Independent Panel on the Public Protector

Draft Terms of Reference

Advocate Nazreen Bawa CV (Not made available to the public)
Advocate Ncumisa Mayosi CV (Not made available to the public)

The Committee convened a virtual meeting to receive a briefing by Parliament’s Constitutional and Legal Services on the pending litigation by the Public Protector relating to the section 194 enquiry, and the appointment of Evidence Leaders.

The litigation in question concerned the Public Protector’s rescission application filed in the Constitutional Court to overturn the Court’s decision that the Committee could proceed, as well as a letter sent from the Office of the Public Protector to the Chairperson of the Committee, requesting that he halt their proceedings until her rescission application was decided. If they failed to do this, she threatened to interdict them on an urgent basis.

The Senior Parliamentary Legal Adviser advised that since the Committee had not yet been interdicted, there was no legal impediment to the continuation of their process. However, given that there was a rescission application filed at the Constitutional Court, the sub judice rule meant that Members of Parliament could not discuss the merits of this matter. They could proceed with their section 194 enquiry until formally interdicted by a court.

Members were informed that the President’s election to halt his decision to suspend the Public Protector pending the outcome of her rescission application did not impact the proceedings of this Committee. Due to the separation of powers, the power of the President to suspend a Public Protector was entirely separate from the power of Parliament to establish grounds for removal of a Public Protector in terms of section 194. 

Most members agreed that the Committee should proceed with its programme, since there had been no formal interdict. However, the NFP asked why the President’s legal counsel had advised that he halt his suspension decision pending the outcome of the rescission application. The ATM voiced concern that Rule 89 of the National Assembly Rules forbids members from reflecting upon the merits of any matter pending before a court. The EFF and ATM registered their objections. They reasoned that if the President had decided to halt his suspension decision pending the outcome of the matter in court, Parliament should do the same.

The Committee resolved to continue with its work.

The two advocates selected to be Evidence Leaders were presented to members: Advocate Nazreen Bawa as Lead Evidence Leader, and Advocate Ncumisa Mayosi to assist her. Members supported their appointment.

Meeting report

The Chairperson opened the meeting by welcoming his colleagues. He noted that the last time they met was on 22 February 2022. In that meeting, they took significant steps in adopting a terms of reference roadmap, and also adopted a committee programme. They were meeting that day as a scheduled meeting of the committee to attend to further matters important to the above-mentioned roadmap. 

Before attending to these matters, he asked if there were any apologies. It was noted that an apology was received from Ms D Dlakude (ANC), but it seemed that she was attempting to connect to the platform. So it appeared she was not actually absent, but just having difficulty connecting.

The Chairperson noted that an agenda would have been circulated to committee members which listed two matters.

Firstly, a brief report from Parliamentary Legal Services explaining litigation matters. He referred to these matters as a “festival of letters” between Parliament and legal counsel of the Office of the Public Protector. Legal services would summarise and explain what this “festival of letters” meant. After this, members would be asked to comment. The second item on the agenda involved a report indicating the progress on the procurement of Evidence Leaders.

He added if there were no other matters that needed to be raised, he would like to proceed immediately to point number one. No hands were raised, so he asked the Senior Parliamentary Legal Adviser, to commence with his briefing.

Legal briefing on litigation

Adv Siviwe Njikela, Senior Parliamentary Legal Advisor, CLSO, said he intended to be brief with his report on the “festival of correspondence”. He did not intend to go into the merits of the arguments in the letters, as this went to the issue of the litigation strategy, which did not need to be discussed in public. Members may recall that during their previous meeting on 22 February, the legal team briefed them that there had been threats from the Public Protector to file an application of rescission to the Constitutional Court. However, nothing at that moment had prevented the Committee from proceeding with its work. On this basis, the Committee took the decision to proceed and adopted its terms of reference. Since then, on 11 March, they received notice of an application to the Constitutional Court by the Public Protector, wherein she sought direct access to the Constitutional Court. The application was requested that the decision that the Constitutional Court made on 4 February must be rescinded. He reminded the Committee that rule 42 of the Uniform Rules of Court allows for a person to apply for a rescission of a court’s decision. But, this is normally limited to situations where there are errors that may have resulted in the judgment.

The Parliamentary Legal team had received this application from the Public Protector and had filed a notice of intention to oppose this application, as they believed the Public Protector’s argument had no merits. They have since written a letter to the registrar of the Constitutional Court, wherein they placed on record that the Committee had made a decision to pursue its process, and if there were to be any directions from the Court, they must be issued before 4 May. This would enable the Committee to proceed with its programme, if it decided to do so in this meeting.

He stated that there had been further correspondence, some of which was addressed to the Chairperson directly, but he did not intend to go into this correspondence for reasons of strategy, since it concerned how they intended to approach the case. Furthermore, the legal team was concerned that there may have been some inaccuracies in some of the matters before them. That morning, they had attempted to rectify those inaccuracies with the Public Protector’s legal team. The State Attorney had confirmed that a letter had been addressed to clarify these issues in as far as they relate to a purported or “in principle” agreement in terms of time frames.  

From the legal team’s reading of the correspondence, the Public Protector seems to be saying that after today’s meeting, depending on what the Committee decided to do with regard to proceeding or not, she may file an urgent application to interdict the section 194 enquiry of the Committee. Adv Njikela recognised the right of the Public Protector to exhaust every legal avenue. But they had not yet received such an application. They hoped to receive this application in the next couple of hours or days. So, all they had at that moment was the Public Protector’s application for rescission of the Constitutional Court decision. There is no interdict application yet filed. But, if filed, Parliament will have to assess the application and decide whether to oppose it or not. Given the decisions that have been taken, it would appear that they would be entitled to oppose such an application. He reminded members that in 2020, when this litigation started, there was an application to interdict the Committee from proceeding. Parliament successfully opposed this application. So, they suspected that they may have to do the same in this case. They would of course be guided by the Committee’s terms of reference. This was the current situation in terms of litigation.

The Chairperson invited Members to comment on this report.

Discussion
Mr N Seabi (ANC) thanked Adv Njikela for his report and greeted his colleagues. If he understood the briefing correctly, there was nothing before them that compelled them to stop the process. They could only stop the process as directed by the Court after the Office of the Public Protector had successfully interdicted their process. He suggested that unless they were advised otherwise, they should proceed with the process. If interdicted, they would obviously obey the court. Concerning other letters directed to the Chairperson and the President, Committee members were not privy to the content of these letters, so they could not comment sufficiently on these. The matter with the President was out of their hands. They needed to focus on their own parliamentary process. However, they would always be open to being advised.

Prof A Lotriet (DA) agreed that the question before them was whether they should proceed with their work or not. She had read the correspondence and could not find an impediment to them proceeding, so suggested that they go ahead until interdicted by the Court.

Dr C Mulder (FF+) had also seen the correspondence documentation and having listened to the meeting’s presentation, suggested that they continue with their process. He added that it was perhaps ironic that the Public Protector, who was supposed to look into the misuse of public funds, was misusing public funds herself. If interdicted, he asked the legal team whether they could also apply for a cost order in the personal capacity of the Public Protector. Public funds should not be misused in this way.

Mr A Shaik Emam (NFP) said the legal team for the President and the State Attorney had given their opinion that the suspension of the Public Protector should be put on hold pending the application expected to be filed (according to his memory) before 31 March and heard by 26 April at the latest. On the other hand, the legal team from Parliament was saying that the Committee must proceed. He wanted some clarity. He acknowledged that they were independent processes, but asked how they could be getting two different legal opinions, and what the implications of this would be should they proceed (although he did not mean to imply that they should proceed). This was especially relevant given that there was some kind of agreement between the President and State Attorneys that documents must be filed by 31 March.

Mr B Herron (GOOD) agreed that the Committee should proceed pending any decision by the Public Protector on whether she wished to bring an application to the High Court to interdict them. But, he also wanted to comment on the so-called “festival” of lawyers’ letters. It was clear from this that the environment was already hostile and potentially toxic and litigious. He reminded members of the “golden rules” being: constitutional process, fairness (which included impartiality and objectivity) and rationality. He noted that members of the Committee and the political parties they represented needed to act with some restraint in the public space when it came to comments they made concerning this process. When they made public comments on matters related to this matter, they could give the impression that they were not coming to this Committee with impartiality; that they had a pre-determined outcome. This would set them up for an endless process of reviews and litigation. He urged that they, as representatives of political parties and members of the Committee, should not engage in the merits of this matter in the way that they had seen recently, where the role of the Public Protector and her suspension was being debated by political parties with members sitting in this Committee. He urged that they did not contaminate the process any further by suggesting that they were not there objectively.

Mr G Skosana (ANC) shared the sentiments of the other members. Between their previous meeting on 22 February and the present day, there were no fundamental changes that compelled them to reconsider their position concerning whether to proceed or not. After the briefing by Adv Njikela, it was evident that they were not interdicted in any way by a court of law. They should not confuse their role as the Committee with the role of the President in this matter. The issue of whether the President suspended the Public Protector or not would not directly affect the work of this Committee. The Committee was not dependent on this presidential decision. They could proceed regardless. If there were agreements between the President and the Public Protector regarding suspension, or arguments about whether the President was conflicted or not, this does not directly impact their process. Whether suspended or not, they had a different responsibility given by Parliament. Only if they were interdicted by a court of law would they have to halt the process.

Ms Z Majozi (IFP) said that she was following in the same direction as the other members. The reply from the State Attorney’s office correctly set out their position. They should follow the advice of the Parliamentary Legal team and proceed with the section 194 enquiry unless and until the court ordered otherwise. They had stopped before, following interdict orders. Getting this advice meant they should continue their enquiry and fulfil their mandate.

Ms V Siwela (ANC) supported the position of all members who had spoken, including the legal team, that nothing stopped them from proceeding. Nothing before them prohibited a continuation of the process. The issue of the “festival of letters” did not affect them, because they had no right to tell the President or Speaker of the National Assembly what to do. The court’s decision would determine the outcome of this matter, but for now, they should proceed.

Ms T Marawu (ATM) asked for clarity on the correspondence dated 28 March 2022 from the lawyers of the Public Protector to the Chairperson. The letter said that the urgent application from the Public Protector was set down for 26 April 2022. The letter also said the President had agreed to delay suspension until this matter was heard in court. But, in terms of Rule 89 of the National Assembly Rules, no member may reflect upon the merits of any matter on which a judicial decision in a court of law is pending. She requested clarity on this in light of the current situation.

Ms D Peters (ANC) thanked the legal team for their presentation. She was of the view that the Committee needed to do its work up until the matter was resolved in court. There was no conflict of issues – the Committee had not been interdicted. They were a panel constituted by Parliament, and they needed to do their work. Their programme was clearly indicating and giving the Public Protector ample time with her legal team to do what they needed to do. If one looked at their programme, the Committee’s actual work would start towards the beginning of May, but the need for engagement with the Public Protector was toward the end of May. Like Dr Mulder, she was concerned about the issue of Parliament, the Presidency and the Public Protector’s own legal costs. This back and forth was very costly. If the Public Protector must protect the public purse, this would constitute over-expenditure. This was unforeseen, the way the legal back and forth was occurring.

The Chairperson thanked Members for their comments and invited Mr Njikela to respond.

Adv Njikela noted that most members made comments in support of proceeding. There was one question posed by Ms Marawu, which in his opinion, Mr Skosana had already answered. The process of suspension in terms of section 194 was a separate process by a different arm of government. It did not necessarily impact the ability of Parliament to do its work. That process of suspension – a subject of the “festival of letters” referred to – had triggered the decision of Parliament to proceed with the enquiry. The fact that the President may have entered into some kind of arrangement with the Public Protector did not impact the ability of Parliament to proceed with its own process. Even if one read the correspondence, the President was simply saying that he would allow her the time to file an application, so that they could finalise the matter and he could make his decision. But, if not finalised, their arrangement would lapse by 26 April. There was clearly no decision to come to a conclusion on the issue of suspension. Out of deference to the judicial process, the President decided to give the Public Protector an opportunity to explore the legal possibilities available to her. But, at no stage in the correspondence did the President say he would not make a decision. It was a question of when he made the decision. They made it a condition that if they could not agree on the terms, the arrangement would lapse and he would be entitled to make a decision. Adv Njikela emphasised that these were two separate processes – suspension was a presidential matter falling outside powers of Parliament. Parliament was tasked with determining whether there were grounds for removal of the Public Protector in terms of section 194 of the Constitution.

Adv Njikela further recognised that Rule 89 of the National Assembly Rules had been raised as an issue a couple of times but it spoke to the merit of a case before court. It was not intended to hamper the ability of Parliament to do its business. If a rescission application was before the Constitutional Court, it meant that Members of Parliament could not discuss whether there was merit to the application or not. A section 194 enquiry was entirely different to this, it was about a different issue. So, there was no issue of them speaking about the merits of the application in the Constitutional Court. But, these things tended to be conflated.

Ms O Maotwe (EFF) said that the last time they met, it was before the rescission application to the Constitutional Court. They agreed then that they would continue based on the fact that at that time, there was no actual application before the Court, simply an intention to apply. But, now there was an application before the Court. Yet, they were not considering this fact. They were now being told about a further intention to interdict their process. All Members of Parliament were speaking on the basis of an intention to interdict but forgot that the initial agreement was that since there was no application to the Constitutional Court yet, they could continue with their work. But, now that there was an application before the Court, they were no longer entertaining this idea. They must not be seen to be rushing the process. They must allow the Constitutional Court to determine the way forward. If they must delay to the 4th of May, this is not too long a wait.

Ms M Tlhape (ANC) said there was nothing before the Committee stopping them from proceeding. She supported the continuation of the process.

The Chairperson reminded Members about the previous meeting – the day before that meeting and on that morning, they had received more than one letter from the Public Protector asking them not to convene that meeting, and asking them to stop the whole process. Her justification was that in 10 to 15 days she intended to apply to the Constitutional Court for a rescission. She eventually did so on 11 March, 19 days later. The issue raised then, that they needed to repeat today, was that there was no actual legal impediment to their process. The rescission application did not in itself suspend this process. If the Committee paused its process, it would have been of its own volition, but not on any legal basis. Nothing had changed between 22 February and today, other than that the Public Protector had requested the Committee to stop its process. This request was not a  legal requirement. This had to be clarified for members. But, he noted that they were live to any issues that may arise.

If an interdict did occur, they would respect it. This was evident from their conduct previously, when they were faced with a court interdict. This occurred on 28 July 2021, and they paused until 22 February 2022 to respect the court’s judgment. The Constitutional Court had made a judgment on 4 February, and the Committee immediately decided that the matter was urgent, and any delay on this matter would not be fair to the Office of the Public Protector, and the Public Protector herself. So, the speed with which they moved, without rushing anything, was as important as attending to the details of this matter. If they delayed this indefinitely, it would affect the fairness and rationality of the process. They had to proceed with their work and milestones while being mindful of what was happening. This section 194 process was the trigger of everything else. There never would have been a suspension without the parliamentary process. What was happening before the Constitutional Court went to the heart of Separation of Powers – the National Assembly had nothing to do with the suspension of the Public Protector, this was the power of the President. Their duty was to deal with the investigation, make findings and recommendations, and give reasons for these.

The Chairperson then asked the Parliamentary Legal Adviser, to present how far the procurement process has gone concerning the sourcing of Evidence Leaders.

Legal briefing on Appointment of Evidence Leaders

Ms Fatimah Ebrahim, Parliamentary Legal Advisor, CLSO, began by giving a quick recap of the Committee’s terms of reference in respect of the role of the Evidence Leader, contained in section 5. Firstly the enquiry is inquisitorial in nature, and the Evidence Leader does not act as the prosecutor. The role of the Evidence Leader is limited to presenting the evidence, and putting questions to the Public Protector or other witnesses, with the aim of empowering the Committee to assess the merits of the charges in the motion. As such, the Evidence Leader is not a decision-maker in this process. Lastly, the use of the Evidence Leader would in no way limit or impede members from their right to put questions of substance or clarity to any witnesses in the exercise of the oversight function.

With this in mind, they had commenced the process of procuring the Evidence Leaders as per the instructions at the last meeting. This process was done via the Office of the State Attorney. She could confirm that two appointments had been made. Firstly, Adv Nazreen Bawa, the Senior Counsel based at the Cape Bar, would be the lead evidence leader. She would be supported by Advocate Ncumisa Mayosi, who would also assist in the leading of evidence.

Ms Ebrahim reminded members that in the last meeting they mentioned there was quite a substantial amount of documents in this matter. The record was over 9000 pages, excluding the panel report and further evidence that may be accumulated in the following weeks. There were 4 charges and multiple sub-charges. So, it was necessary to procure more than one person to assist them in this matter.

Adv Bawa has been a member of the Cape Bar for the last 24 years. Prior to this, she served as a clerk at the Constitutional Court and was appointed as a Senior Counsel in 2015. She has extensive experience in constitutional law matters, notably experience as an Evidence Leader – she led evidence in the Khayelitsha Commission of Inquiry into allegations of police inefficiency. She was also Evidence Leader in the Mokgoro Inquiry, looking into the fitness of Advocates Jiba and Mrwebi to hold the office of Deputy National Director of Public Prosecutions and Special Director of Public Prosecutions respectively.

Advocate Mayosi was also a member of the Cape Bar and took chambers in 2007. She also had extensive experience in public and constitutional law and has served as an initiator for the South African Rugby Union, as well as for Parliament’s Power and Privileges Committee. She has also served as a chairperson of the Eastern Cape Gambling Board.

Both of these counsels have had illustrious careers and very impressive CVs. If any Committee Members wanted a copy of their CVs they could be provided.

To date, they provided the Evidence Leaders with all relevant information and with the entire record. They were currently in the process of preparing for the hearing to determine issues such as whether any witnesses would be called. One of the other things the legal team needed to do with the Evidence Leaders was to determine the finer details concerning the formatting of the questions and whether there were some matters that could be dealt with on the papers, rather than having to lead testimony. They would continue to consult with counsel in the following weeks, but apart from that, there were no other issues related to the procurement. They were 100% ready to proceed.

The Chairperson asked if there was any harm in them sharing those CVs with members, rather than requiring them to individually request the CVs. It would be useful to familiarise themselves with the counsel they would be dealing with.

Ms Ebrahim replied she would ask the committee secretary to send that out after the meeting.

The Chairperson then invited any comments or questions.

Discussion
Mr Herron welcomed the presentation and recommendations. There was no reason to object to either of those Evidence Leaders. They were competent members of the legal profession, so he suggested that members support their appointment and they move on.

Ms Peters supported the proposal to accept the two advocates as Evidence Leaders. She also asked if one of the counsel was a woman.

The Chairperson confirmed that both advocates were women.

Ms Siwela and Mr Skosana also supported the names put forward as Evidence Leaders.

The Chairperson confirmed that members agreed that those two advocates would serve as Evidence Leaders. Their CVs would be shared with members. He reminded members that with the next milestone approaching, 30 March to 30 April, things would get very busy for these Evidence Leaders.

Before he wrapped up, he noted that the minutes were not sent to members so they would not deal with that item.

Mr V Zungula (ATM) said he had been held up in another meeting, so had missed the earlier parts of the proceedings. But, he wanted it to be registered that he believed the proceedings of this committee should be suspended until the court proceedings were effectively completed. Even the President had to halt any intention from his side to suspend the Public Protector, simply because the matter was before the courts. He reminded members that when anything was before the courts, it was sub judice. Therefore, it made no sense that this Committee would proceed. He requested that the Chairperson note their objection as ATM.

The Chairperson said the point had been raised before, and they had dispensed with that matter. But, Mr Zungula’s objection was noted.

Ms Maotwe said that she had already made the point earlier on, but as EFF they too opposed the continuation of proceedings while the matter was before the court. She maintained that the last time they agreed to proceed, it was because there was no actual application before the Constitutional Court. Now there was an application. She reminded members that the programme between then and April would be very hectic, so by the time the matter would be heard in the Constitutional Court in May, the Committee would have long proceeded with its activities. This seemed to prejudice the Public Protector. She did not know why they were in a hurry.

The Chairperson noted her objection.

Dr Mulder said they had dealt with these issues earlier, but felt they could not leave the matter on this note. He reiterated that Parliament’s processes could not be stopped simply through an application in court. Parliament was the highest legislative authority in the country. He agreed with what Mr Herron said earlier. Their decision to proceed was not taking any position in terms of the merits of the application before the court, but rather talking about the process and the role that Parliament needs to play. He suggested that they should discuss the sub judice rule, because the interpretation of the rule by members had been incorrect.

Prof Lotriet concurred that they needed to clarify what sub judice actually meant in this context. She referred back to what Adv Njikela had said, that they would not look into the merits of the rescission application, but proceed with their own process and investigation.

Ms D Dlakude (ANC) wanted to support the colleagues saying that they should proceed. As of now, there was no interdict to their process, so there was no reason to stop. While she noted the objection of other colleagues in this matter, the legal adviser had already explained at length what the process was to be followed. They should follow this process. The issue of the sub judice rule must be explained at length so that all members were on the same page.

Mr J Malema (EFF) raised his hand and said he wanted to speak, but the Chairperson noted that his audio seemed to not be working.

Ms Maotwe asked the Chairperson to please wait while Mr Malema moved to try and get a better signal.

Mr Malema then came online and pleaded that if they wanted this process to be a respectable one, and not seen as pursuing certain agendas, the most acceptable thing to do was to give the Constitutional Court process an opportunity to proceed. The court would resolve this matter quickly. Once this was done, they could proceed. The delay was not that long, and they were in no hurry to achieve justice. What this Committee established would set a very serious precedent for whoever came after the current Public Protector. Although members might hold different views, they must not be seen to be impatient. If it meant giving the Public Protector a long rope, then so be it. But, they must be seen as a committee that accommodated the Public Protector and all types of concerns. They needed to function as a collective, and should not be driven by political or other agendas. They must all be driven by the agenda to restore integrity to the Office of the Public Protector. He pleaded that members re-look into this matter. The President himself had said that he would give the Public Protector a chance with the Constitutional Court process, and only after that had been resolved would he come to a decision on suspension. If the President could do that, why could they not do the same? They needed to make the right choice in terms of fairness and the Constitution.

The Chairperson reiterated that nothing they were doing in that meeting was illegal. They had embarked on a constitutional process in this enquiry. They have done this before – when they were interdicted before, they paused their work. So, if they decided to halt the process, it would be for different non-legal reasons. Otherwise, the National Assembly was simply doing the work that it was constitutionally required to do in terms of section 194. The President was dealing with a different matter altogether. They should always respect the separation of powers. Nothing they were doing that day was putting a dent in this process. They could not embark on legally unjustifiable delays. Any further delay undermined the Office of the Public Protector.

The Chairperson then announced that he would stop the meeting then, and not take the comments of the other two hands raised.

Mr Malema then repeated that the Chairperson should note the objection of the EFF on the basis that the decision to proceed was unconstitutional.

The Chairperson recognised this objection, then closed the meeting.

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