Update on litigation matters and hearing preparations

Committee on Section 194 Enquiry

10 June 2022
Chairperson: Mr R Dyantyi (ANC)
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Meeting Summary


Report of the Independent Panel on the Public Protector

Draft Terms of Reference

The Committee convened a virtual meeting for a briefing by Parliament’s Constitutional and Legal Services Office (CLSO) on litigation matters relating to the work of the Committee and on the working arrangements in preparation for the hearings into the Public Protector’s fitness to hold office.

The Committee was informed that the ruling by the full bench of the Western Cape High Court, delivered on 10 June 2022, cleared the way for the Committee to proceed with the task of holding the Public Protector accountable in terms of the constitutional mandate of Parliament. The court found no merit in the relief sought by the Public Protector to interdict the Presidential and Parliamentary processes.

The Committee resolved to grant the Chairperson the authority, in terms of section 14 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, to summons any person identified in the course of gathering evidence to appear as a witness or submit documentary evidence in support of the work of the Committee.

Members heard that 24 written submissions had been sent to the Committee. These would be distributed to Members. The Constitutional and Legal Services Office was assisting the Committee in developing working arrangements for witness hearings which are scheduled to start in July 2022.

Members were cautioned to approach the task with an open mind and to be wary of public statements that could affect the credibility of the process. Members were advised to focus on the evidence and facts presented to the Committee and to act impartially and without bias. The work would continue during the constituency period in keeping with the roadmap adopted by the Committee.

Meeting report

The Chairperson said the purpose of the meeting was to get an update on the progress made on a few items as part of the roadmap of the work of the Committee. The issues included feedback on matters related to public submissions, the Public Protector’s (PP) representation, litigation matters, and working arrangements in preparation for the hearings.

Update of litigation matters
Mr Siviwe Njikela, Parliamentary Legal Advisor, Constitutional and Legal Services Office, remarked that the developments of the past few hours should not influence the work of the Committee. The legal position had not changed a great deal since the last presentation to the Committee. The Constitutional Court made a decision on the rescission application and another rescission application had been filed. The application filed in the Western Cape High Court consisted of two parts, i.e. to interdict Parliament from proceeding with any process considering the motion to remove the PP and to prevent the President from suspending the PP. Notification of the ruling was received on 9 June 2022. The Presiding Judge of the Western Cape High Court, on behalf of the full bench of the court, delivered the ruling on 10 June 2022. The court found no merit in the relief sought by the PP and confirmed that Parliament was executing its constitutional mandate. Based on the principle of the separation of powers, the PP is answerable to and must be held accountable by the National Assembly. The Western Cape High Court refused to stymie the process. The Committee must therefore apply discretion and proceed with the process.

The Chairperson requested Mr Njikela to explain the issue of cost orders which arose from the judgment.

Mr Njikela replied that the issue of cost orders, should the PP fail in the attempt to interdict the Presidential and Parliamentary process, was raised by the fifth respondent. i.e. the Democratic Alliance (DA) and not by Parliament. The DA sought personal cost orders against the PP on a punitive scale but the judge granted a different cost order on a party and party basis. He drew attention to the possible challenge by the PP’s challenge of the suspension. After failed challenges to the Constitutional Court and the Western Cape High Court, the PP approached the African Union Commission for Human and Peoples Rights to continue the battle. He encouraged Members to continue with the process as they had been doing for the past two years.

The Chairperson thanked Mr Njikela for the precise and helpful briefing. He invited Members to comment briefly on the update of litigation matters.

Prof A Lotriet (DA) expressed her gratitude on behalf of the DA for the exposition of the findings and the cost orders. She concurred that the Committee should proceed with what it was supposed to do regardless of efforts to distract the Committee from continuing with the work. The Committee should expect the same strategy to be used in future.

Ms O Maotwe (EFF) raised a concern about not receiving the agenda for the meeting. She asked that the agenda for future meetings be made available on time.

The Chairperson requested Mr Thembinkosi Ngoma, the Committee Secretary, to clarify the matter.  

The Committee Secretary replied that the agenda was circulated on Wednesday, 8 June 2022.

The Chairperson cautioned Members to focus on real issues. Any other issues must be sorted out and not distract the Committee from doing its work.

The Committee Secretary clarified that the agenda had been circulated on Tuesday, 7 June 2022. He confirmed that Maotwe was on the mailing list.

Ms D Dlakude (ANC) acknowledged receiving all correspondence. She expressed appreciation for the work of Mr Njikela and thanked him for the feedback. The Committee would proceed with the work of Parliament as advised by the legal advisors. The fact-finding mission would continue unless the work of the Committee is interdicted.

Ms V Siwela (ANC) said the Committee was ready to receive any litigation but nothing should stop the work from moving forward.

Mr G Skosana (ANC) reminded Members of the determination that was made in the April 2022 meeting to not allow any impediments to stop the enquiry. The Western Cape High Court judgment was assisting the Committee to remove any doubt that might have existed amongst some members. The Committee was on course with the enquiry unless different challenges appear in the near future.

Update on work done
Ms Fatima Ebrahim, Parliamentary Legal Advisor, Constitutional and Legal Services Office, outlined the dates on which the PP had been granted five opportunities to submit written representations to the Committee, starting on 22 April 2022 to 30 May 2022. The Committee resolved that the PP would have the opportunity to make oral representations in the hearing should she not wish to submit written submissions.

The closing date for public submissions was 3 June 2022. The Evidence Leaders together with the legal team were in the process of assessing the content of the 24 written submissions received. Written submissions will be distributed electronically as a bundle to Members and the PP by 14 June 2022.

The Committee was requested to grant the Chairperson permission to issue a summons to any person recommended by the Evidence Leaders or identified by the Committee in the course of gathering evidence. The authorisation was a requirement in terms section 14 of the Powers, Privileges & Immunities of Parliament and Provincial Legislatures Act, 2004.

Working arrangements for the hearings were being developed as requested by the Chairperson. The directions and procedures would be shared with the Committee and the PP in the near future for comment and adoption.

Mr B Herron (GOOD) sought clarity on whether Members needed to request the bundle of written submissions by 14 June 2022. He supported the motion to authorise the Chairperson to issue a summons in support of the work of the Committee.

Prof Lotriet said reference had been made in the presentation to section 14 of the Powers, Privileges & Immunities of Parliament and Provincial Legislatures Act, 2004. She asked for the inclusion of Assembly Rule 189 relating to documents of a private nature to be treated with confidentiality.

Ms J Mananiso (ANC) thanked the legal team for diligently doing their work on the public participation process. She confirmed that information had been distributed in all 11 languages via various radio stations. This proved that the legal team was fit-for-purpose.

Mr X Nqola (ANC) sought clarity on two issues. He wanted to know if it was correct that 24 written submissions had been received from the public. Furthermore, he asked if the Chairperson was requesting the Committee to grant him the right to summons people. He said the Chairperson could summons people as soon as the evidence leader provided feedback.

The Chairperson explained that although he had the power to summon, in terms of the Committee rules, a resolution on the matter was required. He was counting on the support of Members to resolve the matter.

Mr Nqola and Ms Siwela supported the motion to grant the Chairperson permission to summons any person.

Ms Ebrahim responded to Mr Herron. An electronic bundle of the written submissions was available but Members had the option to request a hard copy of the bundle from the Secretariat. She cautioned that one affidavit with annexures exceeded 500 pages. All Members would be receiving an electronic bundle by Tuesday, 14 June 2022. Responding to Prof Lotriet, she said Assembly Rule 189 could be invoked if required and did not need specific inclusion. She acknowledged the Committee Secretary for managing all the public participation processes. She undertook to do all the steps required to enable the Chairperson to summons any person.

The Committee Secretary said he had received an indication of Members who wanted hard copies. He thanked Ms Mananiso for appreciating the work done on the public participation process.

Mr Herron seized the opportunity to raise an issue that was not on the agenda. He was concerned about the announcement by the DA leader, celebrating the suspension of the PP. The comments raised questions about the impartiality of the party that initiated the process and disclosed a bias that may taint the work of the Committee. He wanted to hear the views from DA Members of the Committee.

The Chairperson said he would not want to start a discussion on the matter.

Prof Lotriet found the attack on the integrity of DA Members improper. The meeting was not the forum for such attacks and was uncalled for. She vowed to abide by any ruling of the Chairperson. She took offence to the comments of Mr Herron and asked the Chairperson to rule on the matter.

Ms Siwela thanked Mr Herron for raising the concern. The issue of impartiality was critical to the work of the Committee. The role of Members was to play the ball and not the person.

Mr G Hendricks (Al Jama-ah) shared the concern of Mr Herron. The Chairperson should not be placed in the position of chairing a kangaroo committee. He proposed that DA Members be excused from the Committee.

Mr A Emam-Shaik (NFP) said the issue of impartiality had been discussed before. He was not concerned as the numbers in terms of representation would deal with the issue. He cautioned that the comments could affect the credibility of the process.

Ms Maotwe was not surprised that the DA was celebrating the suspension of the PP. The motion to suspend the PP was won with the support of the ANC. Members should therefore not be surprised at the behaviour of the DA.

Mr Nqola said the matter would not be resolved through conspiracies. The Committee was a conglomerate of different parties with different ideological views. What is said in public should not be central to how the Committee was operating. He proposed that the Chairperson discuss the matter with the Speaker and find a solution to the issue raised by Mr Herron.

Mr B Nodada (DA) said the Committee should not be reacting to the emotions and perceptions of other people. Members should not allow themselves to be distracted by discussing comments made on other platforms.

Mr K Mileham (DA) was appalled by the comments of Mr Herron. The Committee was not bound by statements made outside the Committee setting. Members should focus on the evidence presented to the Committee.

Mr Skosana agreed with Mr Nqola that the matter should be discussed with the Speaker. He sensed that it was becoming a political party issue which was not ideal. The issue of impartiality was important. He was concerned that the comments had the potential of tainting the process.

The Chairperson said the Committee was pioneering a unique task. It was the biggest committee with 36 members. He was committed that the Committee would be respected and was not planning to refer the matter to the Speaker. He urged Members to approach the task with an open mind, to focus on facts and evidence, and avoid entertaining side issues. He was not going to stop Members of the UDM, ATM or EFF who were raising differing standpoints because it was the right of political parties to express themselves. He cautioned Members to stay focused and to be mindful of their Facebook and Twitter postings to avoid drawing the Committee into controversies. He was not chairing a House sitting but a section 194 Committee. All Members should be equal to the task of exercising impartiality and protecting the integrity of the institution which had tasked the Committee to do this work. He appealed to Members to not be side-tracked by the different standpoints of political parties when the point of dealing with the real issues arrives. He implored Members to follow the facts and truth throughout the entire process. Anybody embarking on a briefcase outcome should not be part of this process. He called on the Committee Secretary to move to the next item on the agenda.

Mr Nqola attempted to respond but the Chairperson intervened and requested him to respect the ruling.

Adoption of minutes    
The Committee Secretary presented the minutes of 11 May 2022. The minutes were adopted with no amendments.

The Chairperson thanked Members, the legal team, and the Secretariat for their contributions. He said the meetings were going to become more challenging in the future. The roadmap would include work to be done during the constituency period. Another meeting, to outline the process was likely before the hearing of witnesses start in July 2022.

The meeting was adjourned.


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