The Section 194 Enquiry Committee met in a hybrid format to address correspondence, a legal opinion and a decision on that and the programme going forward and adopting the minutes of previous meetings.
The focus of the Committee was on the four items of correspondence. Correspondence from the EFF Chief Whip stating that he found the conduct of the evidence leaders unacceptable. The evidence leaders were requested to consider the contents and to respond to the Chairperson. The second letter was from the attorneys representing the Public Protector, requesting the re-cross examination of two witnesses, Johann van Loggerenberg and Ivan Pillay. It was unclear why the witnesses should be recalled, especially after the former had already spent three days providing testimony. The third letter was written by an EFF Member of the Committee, in which she addressed several questions to Mr van Loggerenberg. The final item of correspondence was of most interest to the Committee and members of the public and that was from the Public Protector's attorneys requesting the Committee to assist them in summoning the President of South Africa to appear before the Committee as he had declined their request to appear.
A legal advisor from the Parliament's Constitutional and Legal Services Office provided advice on each of the items of correspondence, noting that the Committee was not obliged to acquiesce to any of the requests and suggesting that it was more important to look at the relevance of the proposed witnesses to advancing the motion before the Committee, that is if the Public Protector should be removed from office on the grounds of misconduct and/or incompetence. The recalling of witnesses for further cross-examination was something for the Chairperson to determine. The Legal Advisor reminded the Committee of the legal framework within which it was working. On the request to subpoena the President, the legal advisor noted that the reason given to the Committee for the summons differed significantly from the reason given in the correspondence between the attorneys and the President requesting him to present himself before the Committee. It requested that the President be summonsed in respect of the "CR17 or Bosasa case which had resulted in the courts making certain remarks about the Public Protector which in turn led to charge number 11.3 and 11.4 in the motion before the Committee".
Several Members spoke against calling the President as there was nothing that the President could contribute personally to consider the Public Protector's conduct and competence. One Member suggested that the Committee ask the Public Protector to indicate, with some specificity, why the President's evidence would be relevant and in what respects. Another suggested that the Committee should not rush the process and if the Public Protector felt that she needed more time to cross-examine the witnesses, she should be permitted to have that time. One Member said her main concern was the unacceptable way witnesses were being treated, spoken to and even threatened. She also expressed concern about the cost of the exercise, which the South African taxpayer would ultimately bear.
The Committee considered the programme, which ran until early October 2022. Suggestions were made to meet on Saturdays, in the afternoons and late into the night as Members struggled to balance their commitments to other parliamentary committees since Parliament resumed session on 16 August 2022.
The Chairperson opened the meeting by referring to the time period within which the Committee had to do its work. The Committee had to move with speed, without rushing. The day's meeting provided an opportunity to reflect on what had been done and the way forward. The Committee would address correspondence, a legal opinion and a decision on that and the programme going forward, and adopting the minutes of previous meetings.
The Committee Secretary referred to the correspondence before the Committee.
1. There was correspondence from the EFF Chief Whip about the conduct of the evidence leaders. The evidence leaders had been requested to respond to the Chairperson on the correspondence before the end of the week. That response would be sent to the EFF Chief Whip and tabled before the Committee.
2. An 10 August 2022 letter from Seanego Attorneys, representing the Public Protector, requesting the re-cross examination of Johann van Loggerenberg and Ivan Pillay. The secretariat consulted with the evidence leaders on the request and there would be a consultation between the two legal teams. A letter from Mr van Loggerenberg indicated that he might not be available to present himself before the Committee, but he continued to make himself available to the Committee and was prepared to provide written responses under oath to any written questions. The secretariat would also be consulting with Mr Ivan Pillay.
3. A letter from Ms Omphile Maotwe of the EFF contained questions to Mr van Loggerenberg. As they dealt with the other correspondence, that letter would form part of those discussions.
4. An 8 August 2022 letter from Seanego Attorneys requesting the Committee to assist them in summoning the President of South Africa to appear before the Committee. The Legal Advisor would present an opinion on the correspondence.
The Chairperson stated that he had asked Ms Fatima Ebrahim to provide legal advice on the matters before Members discussed the correspondence.
Ms Fatima Ebrahim, Legal Advisor from the Constitutional and Legal Services Office in Parliament, stated that on the complaint by the EFF against the evidence leaders, the support team had allowed the evidence leaders until the end of the week to prepare a written response after which they would consider that and then take that matter forward. The written response was not a response that they would be drafting to the EFF but rather a response for the benefit of the Committee in terms of the allegations made against them.
The request for additional cross-examination was also something for the Chairperson to determine if he would allow for that. But as the Secretary had indicated, there was a letter from Mr van Loggerenberg's attorneys, which to her understanding, was before the Committee, so that could also be considered when taking that decision.
Ms Ebrahim stated that the big issue that morning was the question or the request, by the Public Protector's legal team, that the Committee summons the President to appear before the Committee. Members would recall that that was raised quite early on in the hearing. On 19 July, the Public Protector, via her legal representatives, addressed an invitation to the President to appear before the Committee concerning the charges that the Public Protector was facing. The invitation raised four particular issues on which they wanted the President to appear. On 25 July 2022, the State Attorney, acting on behalf of the President, replied to the PP's request indicating that the President would not accede to the request. Subsequently, on 8 August 2022, the PP wrote to the Chairperson invoking directive 5.3 and requesting that the Chairperson take all the necessary steps to summons the President to appear before the Committee. The letter to the Chairperson was narrower in scope than the request sent to the President. It requested that the President be summonsed in respect of the "CR17 or Bosasa case which resulted in the Courts making certain remarks about the Public Protector which in turn led to Charge number 11.3 and 11.4 in the motion before the Committee".
Ms Ebrahim provided a brief synopsis of the CR 17/Bosasa matter vis-à-vis the charges in the motion, the CR 17 case itself and litigation relating to the CR17 Report. She recapped the legal framework, terms of reference and the directives for the work of the Committee.
On the way forward, Ms Ebrahim advised that the President should not be called to answer questions related to the suspension of the PP and the current litigation processes before the courts. She also noted that Messrs Van Loggerenberg and Pillay provided evidence to this Committee about reports issued by the PP in which they were mentioned and on their version therefore affected by it. Their appearance before the Committee followed their response to the call for public submissions. In determining if or not to summons the President, the decision should be based on the President answering questions related to the CR 17 matter only. The Committee should take the following into account: the PP has requested that the President is summonsed to answer questions concerning a matter that has been settled by the courts; the President, as the subject matter of the CR-17 Report, was not involved in the investigation, drafting or issuing of the CR-17 Report and it is that process that will ultimately be scrutinised by this Committee; the President's version concerning the events forms part of the court record and is thus readily available; the Committee's singular task is to establish the veracity of the charges against the PP and to report to the National Assembly. Thus, whilst there is no legal impediment that prohibits the Committee from summonsing the President or any other person to appear before the enquiry, it may do so only where: the person being summoned can provide the Committee with information that is necessary for the Committee to determine the veracity of the charges, and the information sought is within the personal knowledge of the person and not available through other less restrictive means.
If the Committee was of the view that the President's presence before the Committee was necessary, Legal Services advised that in the spirit of co-operative governance, the Committee itself first invited the President before proceeding with the issuing of a summons.
The Chairperson appreciated the comprehensive briefing from Ms Ebrahim.
Mr X Nqola (ANC) noted that there was already a plan to address some of the issues raised in the correspondence. On recalling witnesses like Mr Pillay and Mr van Loggerenberg, he believed both men had already assisted the process. In such situations, Members should send their questions in writing. He suggested that because the Committee already had a serious problem of running behind its programme. It had extended the time during which the inquiry was going to proceed. The inquiry was resumed during the time of the recess. Now Parliament was reopening. There might be serious problems as many Members of the Committee were serving on various parliamentary committees. The Committee should prioritise questions in writing for witnesses that have already appeared before the Committee. On the question of whether to summons the President or subpoena the President to appear before the Committee, he thought the legal opinion was spot on. A lot of the matters that were raised did not really resonate with the mandate of the Committee.
If Members recalled, at the start of the inquiry, the Committee had decided that the suspension of the Public Protector did not form part of these proceedings. The Committee had agreed that several issues being raised on why the President should appear would not assist the actual mandate of the Committee. He wished to move that there was no need to subpoena the President. The matters raised were not relevant to the matters before the Committee. Mr Nqola declared that the issue mostly was the relevance of his testimony.
Ms J Mananiso (ANC) was covered by Mr Nqola. However, she wanted to address the President being subpoenaed. In point four of the terms of reference, it was clear that this was not a judicial process. The legal opinion noted those issues had been exhausted, so for her subpoenaing the President would be irrelevant. The Committee had always emphasised bringing witnesses based on the mandate of this particular Committee. So for her, it would be a waste of time and she did not support it. However, she suggested that the Chairperson might need to meet with the evidence leaders to check on the importance of recalling other witnesses and perhaps prioritise relevant issues and determine if they needed to come back. If there's no need, based on issues that had been exhausted previously, when they came before the Committee, they should not be recalled. She wanted to emphasise the Committee being delayed from completing the mandate. The Committee needed to ensure it did what had to be done within the timeframe. If there's a need to go beyond that, it should be a requirement of the process and not for malicious issues. She stated that the Chairperson should not allow himself to be abused because he is too tolerant and too cautious about bias on issues. She applauded the legal team for guiding the Committee to execute its mandate.
Mr B Herron (GOOD) had two points. On recalling Mr van Loggerenberg and Mr Pillay, although Members had heard that this was not a judicial process, they had to remember that the Constitution protected the incumbent by providing a very high threshold for the removal of the incumbent and, though this process was not judicial, it was not a casual or informal process. It would be procedurally unfair to deny the Public Protector the right to conclude her cross-examination of those two witnesses. Cross-examination was not concluded; they all knew that because her legal team objected when the Chairperson closed down that cross-examination. The Public Protector should be allowed to conclude the cross-examination of those two witnesses. This was to meet the high threshold of procedural fairness thrust upon the Committee by section 194 of the Constitution, which protected the Public Protector from arbitrary removal.
On subpoenaing the President, Mr Herron stated that the legal opinion provided by the Legal Services was very helpful. Before deciding that the President should not be called or could not be called, the legal team for the Public Protector or the Public Protector herself needed to submit a substantive motivation that met the very high standard of relevance that the legal opinion set out. I did not think the Committee should simply say the President's evidence was irrelevant. The Public Protector had an obligation to convince the Committee that the evidence that the President could give was relevant and in what respects. The letter did not provide that motivation as it simply requested that he be subpoenaed and provided some general points but lacked the specificity required. The Committee needed to ask that the Public Protector indicate, with some specificity, why the President's evidence would be relevant and in what respects.
Dr C Mulder (FF+) reacted to the question of if the President should be summoned or not. He said that since 1994, this was the most extensive process any Committee of Parliament had ever gone through. He understood that the Constitution gave the Committee a certain mandate and that there was a certain threshold. However, there should be no doubt that that had been the most extensive process since 1994 to deal with an issue through a parliamentary process. And there can be no talk with all due respect of acting haphazardly or coming to an early or easy conclusion – the Committee had bent over backwards to do exactly the opposite.
Secondly, he thought the Public Protector's legal team had indicated why they would like to call or summon the President. That issue was clear. Nobody could argue afterwards that the Committee took the decision, whatever decision it might take, haphazardly as to if the President should be summoned or not because the Committee had gone through a very extensive legal opinion that colleagues had been able to study beforehand. Members had discussed the whole question of the legal opinion and he thought that the legal reasoning was sound. From his point of view and his perspective, he supported what the legal opinion said and he did not think that there was any need for the President to be summoned concerning this specific process.
Ms V Siwela (ANC) added a rider to those who had spoken. She supported the legal opinion because the Committee had a particular mandate and should not lose focus. It should not deviate from its mandate. If Members did that, they were risking the process because they would not proceed within the timeframe adopted. She asked that Members respect the legal opinions because they were clear. The Committee could not call the President. She supported that suspension was the President's prerogative and was not within the Committee's mandate. So the Committee was not going to allow or support a request to call the President because the President was not the witness on the charges laid against the Public Protector. To be fair in this process, the Committee should stick to the Constitution and the rules of the House.
Ms D Dlakude (ANC) stated that she fully agreed with the legal opinion that Ms Fatima Ebrahim had presented and her colleagues' sentiments. When it came to recalling witnesses, if her memory served her correctly, Mr van Loggerenberg was on the stand for more than one day as a witness. She did not think there was anything new that he could present other than what he had already presented to the Committee in the two to three days that he had been there. Also, if the Committee allowed that to happen, it would run the risk of recalling all the witnesses for which the Committee did not have the time. She did not agree with recalling witnesses. If anyone wanted more clarity from Mr van Loggerenberg, she agreed with his legal team's stance that anyone could write to them.
She agreed with the legal opinion that the President was not a witness in this regard. It will be irrelevant for the Committee to call the President because the charges did not warrant the President appearing before the Committee.
Ms M Sukers (ACDP) stated that she would comment on costs, time and the commitment of Members. Mr Hendricks had raised the issue of costs right in the beginning. In the proceedings at the moment, Mr Mulder had said there was the time issue and the commitment that several Members of this Committee had in terms of other parliamentary committees they served on. But most importantly were the costs raised by Mr Hendricks. She thought it would be very good if Members could get an idea of the current cost and the cost of counsel because they had a constitutional duty to the people of South Africa. The process was raking up costs. Within that context, if the Committee ran over time, it did make a material difference to the costs for the South African taxpayer.
Secondly, on the calling of the witnesses, Mr Pillay and Mr van Loggerenberg, she wanted to raise the protection of witnesses specifically. Firstly, both gentlemen had been before the Committee and the same questions had been asked repeatedly over two days. In the case of Mr van Loggerenberg, it might have been three days and then Mr Pillay had been there a full day. So, if there were questions for those witnesses, then, by all means, let it be done in writing, as recommended by Mr Nqola. Regarding the protection of witnesses, her concern was that it became a new form of injustice towards people and the Committee could not allow that to happen. Witnesses like Mr Samuel have been called names and asked if they knew how to count from one to 10. Those things play a huge role in witnesses' experience of the process, impacting future witnesses. Members could not disregard the cross-examination's impact on the witnesses that appeared before the Committee the previous week. It was not a joke for somebody to be emotionally terrified or intimidated in a parliamentary process. It was not okay for Members to allow that to happen. They could see the difference in the witnesses that appeared the previous week that they felt intimidated. She was certain of that just from what she had observed. That was what she wanted to raise about the protection of witnesses. Also, Mr Samuel was told he would be charged with perjury. She wanted to understand who had the authority to lay those charges. If witnesses were going to be threatened that way, they had to be protected. They should be allowed to ask counsel to assist them and if they cannot afford it, the Committee should appoint senior counsel to protect the witnesses and defend their rights.
Ms Sukers expressed concern about the cost to the South African taxpayer for the Committee extending the timeframe. She fully supported the legal position on the calling of the President, but the Committee needed to review protecting witnesses because it was not a court. It was Parliament, and that is the people's House. People were coming before their public representatives to state their case and could not be intimidated, discriminated against and bullied in the way that was happening.
Ms T Marawu (ATM) requested that the Committee should not rush the process. Members were aware of taxpayers' money but the process had to be fair to the Committee, the Public Protector and the witnesses. If the Public Protector feels she needs more time to cross-examine the witnesses to be satisfied, and even the legal team feels they need more time, they should be permitted to have that time. Ultimately, the Committee would reach its goal.
Mr B Maneli (ANC) suggested that when consulting the legal teams, the Chairperson should look if the two requests differed. The Chairperson should also consider that the process was not just about cross-examination in terms of the directives. That happened, but some processes followed after that, determining the time required. The process was going very slowly; there was a need to create a balance between thoroughness and time. "Hurry, but slowly," as the Chairperson had said.
Mr Maneli stated that the point to emphasise is that the matter had nothing to do with the President. It was very clear if one referred to 4.1 of the legal opinion. It talked about relevance to the matter for any witness that one would call - that was the yardstick for the Committee. And in this case, in particular, the Committee must look at the request. It was important that the request to the Committee should be the same request that had gone to the witness directly.
On the one hand, the request to the witness addressed suspension but the request to the Committee narrowed it to something else – the Committee would not know what to examine when the person came before the Committee. That alone dealt with the threshold of relevance. It was important that Members did not leave the session thinking it was about the President. If it were any other witness, would Members arrive at the same conclusion? The legal opinion showed that that would have been the same standard for 'relevance'. And in that case, the relevance could not be proven beyond a reasonable doubt. It was important to understand that; so the Committee did not come again to a point where doubt was cast on procedural unfairness throughout the process.
He added that the Committee has struggled to balance that relevance with the fairness it needed to show everybody. It was important to be clear that the standard was being maintained. It was up to South Africans to see for themselves, despite the process being new, that every effort was being made to adjudicate the facts that came before the Committee. It was very clear on the matter, even if it were not the President but any other witness.
Mr Herron responded to the input of people supporting the legal opinion. He had read the legal opinion and the legal opinion did not tell Members if they should call the President or not. So he did not know what people were agreeing with. The legal opinion in paragraph 4.4 said the summons had taken a restrictive approach, which he agreed with. Paragraph 4.5 sets out some things the Committee should consider when considering whether to ask the President to give evidence. And then paragraph 4.6 was really what he was asking the Committee to do, which was for the Public Protector to indicate the basis upon which the President should be called as a witness. Paragraph 4.6 of the legal opinion said that the person should be able to provide the Committee with information necessary for the Committee to determine the veracity of the charges, and the information sought is within the personal knowledge of the person and not available through other less restrictive means. The point was that the letter received from the Public Protector's attorneys did not set out why the President should be called. He agreed with paragraph 4.6 of the legal opinion. But the paragraph left it open for the Committee to ask the Public Protector's legal team to meet the standard. When people said they agreed with the legal opinion, he was not quite sure what they meant – the legal opinion did not advise the Committee not to call the President.
Mr Nqola referred Mr Herron to paragraph 4, which states that a letter was sent requesting the President to appear before the Committee and the grounds for that request were stipulated in 4.1 to 4.4. That stipulated why the President should appear. He did not think that any other new facts might arise on the reasoning behind the calling of the President. Lastly, he reminded the Committee that the National Assembly Rules directed the Committee to proceed with the inquiry within a reasonable time. If they went back and forth, that would not be in adherence to the reasonable time requirement and would be unfair to the Public Protector herself.
The Chairperson said he intends to summarise the issues in terms of the way forward, but before that, he called on Ms Ebrahim to clarify any points she might want to clarify. He was, however, in a position to do the summary.
Ms Ebrahim agreed that the same test and legal opinion would apply regardless of who it was. In response to Mr Herron's point, she stated that the directives were clear, that the reasons for wanting to call a witness had to be very clear and the request for the President to appear did not provide the basis on which the witness was sought. That was something that she had struggled with because she could not unpack clearly what exactly it was that they wished to put to the President, but certainly, that opportunity was there and it was on that basis that the Committee was considering the request. She was concerned that they should not open up a back and forth. She did not want to open up a dialogue but believed the Committee should deal with matters regarding the directives as they stood.
The Chairperson appreciated the contributions made by his colleagues. Addressing Ms Sukers' concern about the protection of witnesses, he would endeavour to continue doing that with the evidence leaders and the Members. But what was important and lacking in her contribution was that the Committee was interested in the twin processes that had to go together. She seemed to be emphasising one extreme of the two important processes the Committee had to pursue: that any witness, including the Public Protector, must get protection, but that protection must not be at the expense of getting to the facts and evidence and the truth. There always has to be that balance and he had made the point before – as it was inherent in any cross-examination. There would be concern about the kind of language that had been used, but those issues were raised with the relevant person. The Committee had to bear in mind that it was the duty of the Committee to ensure that the witness was protected and that the witness responded fully to all questions and put all facts on the table. Witnesses were free to say when they did not want to answer a question. The last thing one wanted was to have a Member or the evidence leader, a Chairperson running ahead of witnesses, protecting them because the language was hard. He wanted all Members to be on board with that approach even though they had different views on how things were happening. He was aware of the issues of language, which might be impugning one's character, assaulting, bullying, or harassing a witness, but beyond that, every witness that came before the Committee had to have that minimum ability to attend to both issues.
The Chairperson noted the point raised about the high standard required for the removal. That was correct and is in section 194 of the Constitution. It included that at the end of the process, a high threshold had to be maintained when the National Assembly made its own decision. But the National Assembly, even in the rulemaking, had raised the bar to a high level because of what had been listed in section 194 about misconduct, incompetence and incapacity. The rules of the National Assembly raised the bar beyond what is in the Constitution. This was why under the conditions for incompetence, the rules state that it must be sustained incompetence, not a one-off thing. And so the Panel had to look into that: was it just a once-off thing that could have been a mistake, or had it been sustained acts of conduct? The rules had responded to a higher threshold of removal and misconduct. He noted that the Committee had gone beyond the House rules in its rulemaking. All those rules had been taken to court, and they were found legally sound and met that threshold. There were a lot of lessons to be learnt and he was sure legal scholars followed the process.
As Mr Mulder had stated, this was the most extensive Committee process, let alone the fact that it was the biggest Committee ever in the National Assembly since democracy, with 36 Members. They had to continue playing in that space because theirs was to maintain the fairness and rationality imposed by the task. The Committee had to move toward the end. There was a destination to any journey, and the Committee needed to move with speed on the issues but had to strike that balance, moving with speed without being rash or reckless and pressing all the important buttons, but it could not be a never-ending elastic process. And so that must be respected, as well.
On the recall of witnesses, the Chairperson, noting that the points made had assisted him, stated that there had to be specific issues for any witness recalled. The Committee would not just recall a witness because the witness missed something or the legal team missed a point in the statement. Specific issues that detailed why the witness was being recalled had to be raised. The specific questions to be put to the witness to respond to, whether in writing or orally. It could not just be a recall for the sake of recall. The requests made by the legal team did not address that prerequisite. One cannot say one wanted a half day or a full day for each. There were no stipulated details on record. Mr van Loggerenberg spent three days answering questions. What were the gaps to be filled by recalling the witness? That had to be put down, and he would insist on that if it was done in writing or in person. According to the programme, the evidence leaders would soon exhaust their witnesses and he wanted to allow the Public Protector to identify which witnesses they wanted to put forward. But any recall would only occur because there was a specific question. That would avoid the concern by Ms Sukers about repeating questions.
His last point was on Members applauding the legal team for the consistent work it was doing for the Committee, especially the comprehensive nature of the legal opinion and he agreed fully. Members were very clear that the legal opinion was supported and had said they were not asking the Chairperson to subpoena the President on behalf of this Committee. There was clarity on that. As Ms Ebrahim had said, the directives stipulated a framework and the process for when a witness can be subpoenaed on behalf of the Public Protector's team. The Public Protector's team had been requested to respond to what was in the directive, which was explicit. The Chairperson said he would not want to chase the Public Protector's team for the required details. In listening to Members, he was convinced that the subpoena based on the relevance of the President as a witness was inadequate and he was not going to go that route. The subpoena for the President was declined. That was the summary. Based on the arguments raised, he would ensure that the process did not get abused. It remained a parliamentary process and, emphatically, as the Chairperson, he needed to continue making the point that it was not a court process. Any court had its norms and standards that everybody adhered to, and the parliamentary process of oversight had its own standards to which all those involved had to adhere. It was not the court standard because they were not in court.
He indicated that the next point was the revised programme.
Dr Mulder agreed with the summary. The Chairperson was correct. He asked if, in terms of the Committee's own internal process or procedure, it would be necessary for the Committee to take a formal decision that the request for this subpoena was declined. In terms of process, they need to do that formally. One of the colleagues had proposed something like that in the discussion earlier.
The Chairperson agreed. He had no problem with that and he put it to the Members to move for the Committee to decline the subpoena for the reasons that had been put forward.
Mr Maneli proposed that the Committee agree to decline the request for a subpoena.
Ms Dlakude seconded the proposal.
Mr Herron stated that he would like his request to be recorded that the Public Protector's team be provided with an opportunity to specify what the President would be a witness for.
The Chairperson noted the request. However, the majority approved the motion to reject the subpoena.
The Committee Secretary presented the draft Committee programme, which was a working document. The programme started with today's meeting and hearings the following day. Due to unforeseen circumstances, the witness scheduled for Friday, 19 August 2022, would not be available on that day but would be present on Monday, 22 August 2022, as well as the witness scheduled for Monday. Hearings would continue all week until Friday, 26 August. He was aware that other committees would be meeting that week. The hearings would resume on Thursday 8 September, Friday 9 September and Saturday 10 September. That would be followed by hearings on 15, 16 and Saturday, 17 September. From 27 September, the constituency period starts and hearings would be on Tuesdays to Fridays throughout the constituency period and end in the first week of October. The plan was to have 11 days for the support staff to just work on the reports or any possible extension of hearings.
The Chairperson reiterated his introductory remark that there was a need for the Committee to move to the endpoint with fairness and rationality. He was unsure about the 25 days indicated as the Committee did not have a list of the Public Protector's witnesses.
Mr K Mileham (DA) raised a concern about the programme that, as quite rightly pointed out, overran other committees and parliamentary sittings. That had an impact on the Committee's ability to do its work. He pointed out that the Ad Hoc Committee on the Eskom Inquiry used to sit from 1800 until roughly midnight each night after sitting of the House, which meant Members could then attend normal committee meetings during the day and the plenary sessions in the afternoon. He was not saying that was desirable, but in terms of the work to be done, it prevented an impact on other parliament committees and House sittings. Perhaps sitting in the evenings should be considered rather than cutting across committee days and parliamentary sittings.
Mr Herron wondered how realistic the programme was. From the evidence leader's side, there were witnesses every day, but no space was allowed if they did not finish a witness in a day, as experienced frequently over the past five weeks.
Ms Dlakude stated that this was not the first Committee tasked with work that clashed with committee meetings and House sittings. She suggested that meetings could be held in the afternoons – permission had been granted over the years. The Committee could work until late with a witness, given that meetings had run from morning until late in the evening during this constituency period. Depending on the business of the House, if there was a need for voting, then during voting time, Members could go and vote. Members that had questions in the House would be permitted to attend those sittings. Members could not focus only on this Committee as they sat on many committees and also, Members needed to rest, so they were fresh in the morning.
Ms Dlakude said that the cross-examination of witnesses had to be timed; it should not be open-ended. If the evidence leaders were leading the evidence, that should be tight, maybe three hours. Then the probing of witnesses by the Public Protector's legal team should be limited to, say, three or four hours, and then Members would have their turn. If it were not timed, then the Committee would miss a step. Members should ensure that when a witness appeared before the Committee, the work with that witness was finished on that particular day. Time was wasted when a witness was asked the same question over and over and over again.
The Chairperson noted that the first suggestion was to have evening sessions and a second suggestion was that permission is requested to sit every afternoon, even when plenary sittings were on, as most committees sat in the morning. There might even be days when the hearings might be able to start at 14:00. Mr Herron had suggested they may be too ambitious in thinking that they could manage a witness in one day. However, he noted only two or three witnesses had gone beyond a day, such as van Loggerenberg and Samuels. The majority of them finished in the time allocated. It required that both evidence leaders and the Public Protector's team should be given a specific amount of time and not be able to just go indefinitely. That practice could work but did need tighter management.
The Committee Secretary noted the recommendation. There was still some leeway in the following week as it was a training week and the Committee programme was taking advantage of that. However, they would look into the other days and the committees and National Assembly programme for each day. Perhaps meetings on Tuesday or Wednesday afternoons until very late would work, although it would not be fair for Members sitting in a committee on a Tuesday morning and then sitting until 10 o'clock in the evening. They needed to tread carefully so that the Members were also productive on the other side. They would look into it in line with what was on the parliamentary programme and revise accordingly when the need arose. There was general agreement between the two teams that hearings would run the following week and they would try to finish each witness on the day allocated. They did not foresee any spill-overs the following week. If the need arose, maybe a few hours of the following morning would be utilised to deal with whatever was outstanding from the previous day. He reiterated that the document was a working document which would be revised in line with the parliamentary programme.
Mr Mileham addressed the Chairperson on a slightly different but related matter: the amount of time given to Members to pose their questions to witnesses. He noted that it was not an adversarial process; it was not a judicial process. It concerned him that Members were unable to properly apply their minds if they could not ask questions and get answers to those questions. Perhaps the Committee needed to relook at how much time was allocated to Members to ask questions of witnesses. He was bringing this to the Chairperson's attention because he felt they were somewhat constrained. As was quite rightly pointed out, the evidence leader was given a time limit and adhered to that religiously; then Adv Mpofu went way over his time and was incredibly repetitive in many of his questions. He was not faulting Adv Mpofu for his cross-examination, but it did impact the ability of Members to ask questions to get the clarity they needed to make up their minds.
On the committee programme, the Chairperson stated that the team would have to consider what had been raised there and he would be working with the team to ensure that the programme was reviewed accordingly. He was happy that there was an agreement between the legal teams from the following day and for the next week when the witnesses that had been identified on the Committee's behalf were concluded but there was still work to be done. He was not satisfied that the Public Protector had not given the names of witnesses and would insist that that was done. They could not work in the dark, so that had to be done by the end of the following week so that the programme could indicate the days for the Public Protector's witnesses. He appreciated Members going in to bat for the Committee requesting time slots. It was an advantage that they met in Marks Building and could join sittings for voting processes, especially three-line whips. They would review this programme, but he reminded the secretariat not to be unfair to witnesses as Members and staff stretched themselves. That would also inform the afternoon to evening panel sessions.
On the matter of time raised by Mr Mileham, the Chairperson noted that this had started improving with the evidence leaders and the Public Protector's legal team. It was key to give them a time slot with the start and finish times. It was always going to be an issue to manage the tactics of cross-examination, repetition, and so on. On the Members' time, the directives were quite clear. The directives stipulated five minutes and an extra three minutes to a total of eight minutes. Already the standards that he should have applied in allowing Members to make contributions, in the majority of cases, went well beyond the eight minutes. The standard was anything between 10 to 12 minutes, and so on. As he had formerly indicated, every Member that spoke was timed by the Chairperson. He could tell Mr Mileham how much time a Member had been given for every witness because it's recorded. There were a few culprits that would extend beyond the 10 to 12 minutes. Others, like Ms Sukers, would stay within that time. Members had agreed to five minutes in the directives, but they had already gone beyond that to between 10 and 12 minutes – as the directives stated, the Chairperson had that discretion. Generally, the process had been working a bit better, so that point was taken.
The Secretary added that he had forgotten to mention that the Public Protector's legal team had indicated that their witness list would be provided before the conclusion of parliamentary witnesses the following week.
Mr Herron asked if there was a record of the evidence, i.e. a transcription, and if so, when it would be given to Members or if they would receive a big pile of papers at the end of the process.
The Secretary informed Members that they did have transcripts, some of which had already been completed by the external service provider. He had the transcript from the beginning of the hearings on 11 July but only until 19 July. Those he could safely say he did have. He was awaiting the transcripts from 1 to 3 August. He would make them available as soon as possible.
Consideration of Minutes
The Secretary reminded Members that all minutes before 10 June 2022 had been adopted by this Committee. He presented the minutes of 10 June, 13 to 15 July, and 18 and 19 July 2022. The minutes were adopted unanimously with no amendments and with no objections. The minutes of 11 July 2022 were subject to technical amendments before being adopted unanimously by the Committee.
Mr Mileham addressed an issue that had occurred in the late afternoon of the 11 August hearing. He was not sure if it was the appropriate place for raising the matter but he wanted to raise a concern about a rather disgraceful incident during which the Chairperson was disrespected. He was spoken over and there had been a lot of backwards and forwards going on. If any other person had done it, that person would probably have been thrown off the platform. He wanted to bring it to the Chairperson's attention and ask that he deal with such matters consistently. He was not for one second proposing that anyone be gagged but he did think that the committee chairperson and its members needed to be treated with respect. Unfortunately, that seemed to go out the window rapidly, as seen on the 11th. He would leave it in the Chairperson's hands but he did think there was a need to be a little bit firmer in dealing with such situations.
The Chairperson remembered the situation and thanked him for raising the matter. As he continued managing the process, he took that as homework to reflect on fairness and firmness and how to manage them together. He would apply his mind to how he needed to handle such issues sooner rather than later.
On that note, the Chairperson adjourned the meeting.
Dyantyi, Mr QR
Dlakude, Ms DE
Gondwe, Dr M
Hermans, Ms J
Herron, Mr BN
Joemat-Pettersson, Ms TM
Lotriet, Prof A
Luzipo, Mr S
Mahlaule, Mr MG
Mananiso, Ms JS
Maneli, Mr BM
Marawu, Ms TL
Mgweba, Ms T
Mileham, Mr K
Mulder, Dr CP
Nqola, Mr X
Peters, Ms ED
Seabi, Mr M A
Siwela, Ms VS
Skosana, Mr GJ
Sukers, Ms ME
Tlhape, Ms ME
Tseke, Ms GK
Tshabalala, Ms J
Van Minnen, Ms BM
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