Update by Parliament’s Constitutional and Legal Services Office in respect of ongoing litigation and the way forward

Committee on Section 194 Enquiry

11 May 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

The Committee convened a virtual meeting to receive a briefing by Parliament’s Constitutional and Legal Services Office on the pending litigation by the Public Protector relating to the section 194 enquiry into her fitness for office. The litigation in question concerned the Public Protector's rescission application filed in the Constitutional Court, the decision of the court to dismiss her application, her subsequent application for the rescission of the decision to dismiss the initial rescission application, and postponement of her application to the Western Cape High Court to interdict the enquiry until 18-19 May 2022 following an SMS relating to the Constitutional Court's decision that a member of the public had sent to one of Parliament's legal advisers.

The Committee was advised that the ongoing litigation did not create a legal impediment to it continuing its work. Members were adamant that the SMS controversy should not distract the Committee from its mandate. The Committee resolved to continue its work.

The Constitutional and Legal Services Office explained the public participation process regarding this case. Members of the public have until 23 May to inform the Committee Secretary of their intent to submit evidence. The public call for evidence will be circulated from 13 May and evidence must be submitted by 12pm on 3 June.

The Committee provisionally adopted its programme.

Meeting report

The Chairperson explained that the purpose of the meeting was to discuss the progress made since 29 March 2022 and to discuss the next steps for the Committee. It would not be dealing with the merits of the issues that the Committee had been established to assess. The Committee would be briefed by Parliament’s Constitutional and Legal Services Office (CLSO), update its programme, and adopt minutes of proceedings.

Mr Thembinkosi Ngoma, Committee Secretary, noted apologies from Mr X Nqola (ANC) and Mr A Seabi (ANC) and that following the passing of Mr L Ntshayisa (AIC) last year, Mr S Jafta (AIC) would be joining the Committee.

Briefing by CLSO
Adv Siviwe Njikela, Senior Parliamentary Legal Adviser, CLSO, recalled that, in the last engagement with the Committee, the legal team had reported that there was an application to rescind the decision of the Constitutional Court (ConCourt) that the Committee could proceed. At the time, the ConCourt's decision had been pending. Since then, the Public Protector had applied to the Western Cape High Court to interdict the Section 194 process as a whole and interdict the President from deciding on the issue of her suspension. The matter had been scheduled to be heard by the court on 26 April. There were developments on 24 April relating to an SMS sent to senior counsel representing Parliament, which resulted in an agreement between the parties that the matter should be postponed to 18-19 May 2022 to allow the Chief Justice to investigate the developments. CLSO had since received communication from the Public Protector indicating that she had requested the postponement of the proceedings of the Committee until 18-19 May, when the Chief Justice's investigation would be complete. On 6 May, however, the ConCourt dismissed this application. The Public Protector had subsequently made a further application wherein she sought to rescind the decision of the Constitutional Court because it should not have been issued before the Chief Justice had completed his investigation. It was now up to the Committee to decide how to proceed.

Discussion
Mr B Holomisa (UDM) asked whether the Chief Justice's investigation had been concluded and what the findings had been. Had there been any progress? It would be necessary for the Committee to move slowly and ensure that it was not associated with talks and leakages between the parliamentary legal advisory team and the person who had sent the SMS, Mr Ismail Abramjee.

Adv Njikela replied that he was not aware of any developments in the Chief Justice’s investigation. He assumed that the investigation was ongoing.

Ms D Dlakude (ANC) said that, based on the briefing by CLSO, nothing was stopping this Committee from continuing. There was no interdict stopping the Committee from proceeding with its work. She acknowledged that the leakages were unfortunate but it was not the responsibility of the Committee to deal with them.

Mr B Herron (GOOD) said that there seemed to be an effort to conflate the SMS saga with the Committee's case. Even if there was misconduct related to the SMS, it was irrelevant to the Committee's proceedings. He observed that there was a possibility that the case before the Western Cape High Court would include an application to interdict the Committee from the proceeding and asked CLSO to comment on this. In considering whether to proceed, the Committee needed to consider if there were any prospects for success in that application.

Adv Njikela was unwilling to comment on the case's merits before the Constitutional Court but acknowledged that it was a surprising development.

Mr Herron clarified that he referred to the Western Cape High Court proceedings and not the Constitutional Court proceedings. Could the Committee be reminded of the progress of the Western Cape High Court proceedings, which had been suspended to deal with the SMS issue? Did the application include an interdict to stop this Committee from proceeding?

The Chairperson recalled that the original application to the Western Cape High Court had included an application to interdict the Committee and that the case had been postponed to 18-19 May.

Adv Njikela confirmed that the application to the Western Cape High Court had been postponed to 18-19 May based on the rescission application to the ConCourt, which had since been decided on 6 May. He could not predict what would be argued on 18-19 May but reminded the Committee of the unexpected application to rescind the ConCourt's rescission. He remained wary of commenting on the application's merits before the High Court.

Mr Holomisa asked whether the rule of sub judice had any implications for the Committee’s discussion of these matters.

Adv Njikela replied that CLSO had maintained from the start that the work of Parliament could not be halted because of matters before court, otherwise it would become paralysed. Parliament was an independent arm of state with an exclusive constitutional mandate to decide on the conduct or competence of the Public Protector. No court was competent to decide on this issue, so it could not sub judice.

Ms J Mananiso (ANC) agreed with Ms Dlakude. Were there any implications of the Committee proceeding with its work while awaiting the outcome of the investigation of the SMS issue? If there were no implications, the Committee should proceed as agreed in the previous meeting.

Adv Njikela confirmed no legal impediment to the Committee continuing its work. However, the decision on whether or not to proceed remained with the Committee.

Mr V Zungula (ATM) said that the SMS issue was a serious allegation pointing to criminal conduct by some ConCourt judges. It should not be brushed aside or swept under the carpet and the outcome of the investigation should not be disregarded. There was also a police investigation into Mr Abramjee. Would it not be prudent to await the outcomes of these investigations to avoid being part of a contaminated process? One could not divorce what had happened in the ConCourt and the criminal proceedings from the work of the Committee. What transpired in the Western Cape High Court was also linked to the Committee’s work. If the Chief Justice found that there had been influence by some ConCourt judges regarding the rescission application, this would impact the direction of the Committee.

The Chairperson asked Members to avoid making any allegations regarding the conduct of judges in the meeting. NA Rule 88 prohibited Members of Parliament from reflecting on the integrity of judges unless a substantive motion was tabled in the House and the reflection was properly substantiated.

Adv Njikela reiterated that the decision to continue was entirely at the discretion of the Committee.

Dr L Schreiber (DA) reminded the Committee that it had been established by a motion of the National Assembly (NA). This motion would stand until such a time that it was overturned through another NA motion or if there was a court ruling that prevented it from proceeding. Nothing of that nature had been mentioned. Should the Committee indulge this ‘latest episode’, the Committee would be going down a rabbit hole. This Committee should not be paralysed by "Stalingrad" tactics from outside the Committee. It had a clear mandate and unless it was deemed invalid, it had a duty to proceed.

Ms T Joemat-Pettersson (ANC) agreed that there was no legal impediment to the Committee continuing its work and that the Committee should not conflate the matter of the SMS with its work. The Chief Justice’s investigation should be allowed to continue but that should not stop the Committee from continuing its work. She noted that at a meeting of the Portfolio Committee on Justice and Correctional Services earlier that day [yesterday], the Public Protector's office had been asked who was paying for its litigation and had said that it would provide a written response. She thought it would be quite bizarre if the state were paying for government to litigate against government. She asked that the response to this question be shared with the Committee.

Adv Njikela acknowledged Ms Joemat-Pettersson's concern but said that this could be regarded as a matter of litigation strategy and that it would therefore not be prudent for him to comment on it.

Ms J Hermans (ANC) agreed that the Committee, which had been authorised and mandated to undertake its work by a motion of Parliament, should not conflate its work with what was happening in the courts, as this would paralyse it. She agreed that nothing was stopping the Committee from continuing its fact-finding mission.

Ms V Siwela (ANC) agreed that the matter of the SMS had nothing to do with the Committee, and it should proceed with its work.

Update on developments since the previous meeting
Ms Fatima Ebrahim, Legal Advisor, CLSO, recalled that on 22 April, the Public Protector had been provided with an audi alteram partem notice after the Committee had decided that it would give the Public Protector a chance to provide a written response to the charges in the motion. The note gave the Public Protector until 22 May to respond. The Committee asked the Public Protector to indicate by 18 May whether she intended to use a legal advisor or other experts to advise her during the meetings and if so, to provide the Committee with details of such persons by the same date. She also recalled that the ConCourt had ruled that the Public Protector did have the right to have her legal representatives participate in the proceedings of the Committee. She reported that CLSO was meeting with the evidence leaders, Adv Nazreen Bawa (SC) and Adv Ncumisa Mayosi, and analysing the evidence and preparing for the hearings had started. The process of identifying witnesses would continue in the weeks to come and to this end, a public call for evidence would be advertised by 13 May. The public would be invited to furnish the Committee with any evidence that could assist it in assessing the motion. The public should indicate their intent to submit evidence and whether they require assistance making a statement under oath or handing over evidence by 23 May. All sworn statements and evidence must be submitted by 12pm on 3 June 2022. Evidence that was not foreshadowed on affidavit would not be admissible. This was intended to ensure that the Committee was not inundated with statements not made under oath and that the statements received were relevant to the investigation. Members of the Committee would be provided with a copy of the advertisement. It would appear on social media, in print media and radio. The next step would be to decide which witnesses would be asked to appear at the oral hearings. The legal team had also considered the draft programme together with the evidence leaders. The programme remained a living document. For example, changes to the number of days set aside for hearings might be necessary.

Mr Ngoma presented the draft programme. He confirmed that it was a work in progress. Provisional dates for public hearings were 11-29 July 2022.

Discussion
Mr Holomisa suggested that Members of Parliament and the public be reminded of what exactly the charges against the Public Protector were. He also reiterated the request he had made in the previous meeting for a report from the Department of Justice and Constitutional Development or the Public Protector's office indicating how many cases she had presided over, whether her findings were implemented, how many of her findings had been challenged, and how many challenges she had lost and won.

Ms T Marawu (ATM) seconded Mr Holomisa’s call for information on the Public Protector’s performance in office. The Committee should also be informed about what the Public Protector had done to comply with suggestions made in the audit.
 
Ms Ebrahim replied that she would ask Mr Ngoma to send out the motion containing all the charges after the meeting. She reported that the research team was already looking into the statistics Mr Holomisa had requested. The possibility of having the Public Protector herself provide that information through her legal representatives was also being discussed with the evidence leaders.

Ms Dlakude welcomed the programme and noted that it was a living document. It would allow all stakeholders a chance to express their views on the matters and it gave the Committee enough time to reach a decision.

Ms M Tlhape (ANC) observed that the principle of fairness had been applied. She appreciated the fact that the Committee had agreed that for audi alteram partem, the Public Protector’s legal advisers should be allowed to be part of the Committee. It was also in line with section 59 of the Constitution, according to which public participation should be facilitated. She called for the adoption of the programme as a living document.

Ms T Legwase (ANC) noted the status of the programme as a working document.

Ms Siwela called for the adoption of the programme as a living document.

Ms Mananiso moved to adopt the programme and asked that the advertisement be broadcast in all 11 official languages. Those with disabilities also needed to be accommodated through sign language and Braille.

Mr Ngoma assured the Committee that the advert would be circulated as widely as possible.

The programme was adopted as a living document.

 Minutes of proceedings on 22 February 2022 and 29 March 2022 were adopted.

The meeting was adjourned.
 

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