Video (Part 1)
Video (Part 2)
The Ad Hoc Committee for Section 194 Enquiry investigating Public Protector (PP) Adv Busisiwe Mkhwebane's fitness to hold office, met virtually to discuss the recusal application brought by the PP legal team, for the recusal of the Chairperson and Mr Kevin Mileham from the Committee.
The parliamentary legal advisor provided a legal overview on the recusal application. The legal advisor noted that in ordinary cases the person whose recusal is sought would preside over the case and decide if the recusal application should be granted. The Section 194 Enquiry was not a judicial process and the Chairperson served at the behest of the Committee members who served at the behest of their political parties. All Members would participate in making a recommendation to the National Assembly on the removal of the PP. Further, Mr Mileham was merely a Member of the Committee with no more power than any other Member. As the parliamentary rules did not set out the procedure to be followed for the recusal of the Chairperson or a Member, the legal advisor indicated that it was up to the Chairperson and Mr Mileham to consider the recusal application and inform the Committee if they will recuse themselves, after which the Committee would consider same. The seriousness of the application was stressed, and the legal advisor raised that the Committee might need to seek external legal advice in making an informed decision where the tests for bias could be applied to the facts at hand.
Members made submissions on the recusal application. The majority of the Members, which included ANC, DA and ACDP members, rejected the recusal application. rejected the recusal application. Those Members who opposed the recusal application felt that the Chairperson was not unfair or biased and had actually constantly been abused by the PP Legal Team. Instead, Members voted to investigate Adv Dali Mpofu’s conduct in having threatened the Chairperson at an earlier hearing on 13 September 2022.
However, the EFF member insisted on the Chairperson’s recusal.The possibility of seeking independent legal advice on the recusal matter was raised, as well as the possibility of further court action. Whilst the UDM supported the need for the Committee to consider seeking independent legal advice to avoid making a mistake in its decision. The EFF member urged Members to be honest about the manner and conduct of the Committee and how it had treated Adv Mkhwebane and the Chairperson would lose nothing by recusing himself. Proceeding with an unfair process which might be taken to court would waste both time and money. The Al Jama-ah member held the view that the PP should be allowed to serve her full term of office. The ATM and GOOD member each said that the Chairperson had to make the decision on whether to recuse himself.
The Chairperson will table a comprehensive response to all the grounds raised in the recusal application, and announce his decision on the recusal application at the Committee's next meeting in the first week of October. In the interim, external legal advice would be sought as proposed and decided by Members.
The Chairperson said that the Committee had the required quorum to start. This was not supposed to be a very long meeting. The meeting had initially been set up as a day for the Committee to conclude with what he called the first phase of witness hearings with the last witness of those witnesses that the Committee had identified together with the evidence leaders. It would have been Mr Neels van der Merwe as the last witness, and he was raising that point because the Committee was left with concluding the cross-examination of Mr Nelisiwe Thejane and leading the evidence of Mr van der Merwe and his cross-examination and Members' questions to him. Thereafter there would have been a break to allow for the PP legal team to lead evidence of the witnesses that they have identified together with the PP. The Committee was not there yet. On Wednesday 21 September after listening to the recusal application brought by the Public Protector against the Chairperson of the Committee as well as Mr Mileham, he had indicated at the close of that meeting that the Committee had to welcomed that application with an open mind and regard it as a comprehensive application.
He had further indicated that the Committee would find time, because on 21 September all he did was to ask Members if there were any clarity-seeking questions, which few of them asked. He did not allow for any reflections by Members, and the Committee would use today as Members reflecting on that. He had noted at the closure of that meeting that, once the Committee applied their mind, they would want to make a decision so that there is no further debate on the matter. The only agenda item the Committee had today was the recusal application. He wanted to appreciate and thank Members for the manner in which they had conducted themselves on 21 September in listening, step by step, to all the issues that were raised as part of the recusal application. Today, the Committee was going to upfront ask the Legal Services to make brief reflections. Thereafter he was going to allow Members to contribute to the discussion on this item that had been brought for this meeting. The following week would have been a week where there would not have been a program.
Legal Services’ Opinion
Ms Fatima Ebrahim, Parliamentary Legal Advisor, said that there were just three issues that she would like to touch on. Two had to do with the recusal application, and one was more a matter of housekeeping that she wished to clarify and she would start with. At the end of August, Legal Services had drafted an addendum to the directives to speak more particularly to the issue of recalling witnesses because this was a matter, as Members would be aware, that was repeatedly cropping up in the hearings and they needed to attend to it. She had sent this draft directive to the Chairperson on 31 August 2022, and in that email to the Chairperson she had stated, “Please find attached for your consideration. We have a meeting with Adv Mpofu scheduled for tomorrow” – that would have been 1 September 2022 – “where we will table the proposed amendment. I will call you with an update.” That, of course, would have followed the Chairperson's instructions that the legal teams needed to engage in the backroom, as the Chairperson had been calling it. That meeting had indeed occurred on 1 September 2022, where Legal Services met with Adv Mpofu and the rest of the PP legal team. During the meeting itself, the draft addendum was then shared. In fact, she had emailed it to Mr Ngoma during the meeting, indicating that it was a draft document, and he in turn sent it to the PP legal team indicating the same – that it was indeed a document in a draft format.
Her understanding at the end of that meeting was that Legal Services would get some written input even though Adv Mpofu had raised various issues around the draft addendum, which she had noted. On 6 September 2022 she had in fact communicated with Adv Nazreen Bawa to let her know that she had not received anything back from the PP legal team and inquiring if perhaps she may have received some word on the draft directives – which at that stage, on the afternoon of 6 September 2022, she had not. Shortly thereafter, Legal Services received a letter addressed to the Chairperson, where the PP legal team objected to the entire draft addendum and they demanded that it be withdrawn. Of course, at that stage, it had not even been adopted yet, but the demand was that it be withdrawn. Of course, there was some sort of miscommunication or misunderstanding that had transpired. Legal Services had had a meeting with the Chairperson scheduled for 19:00 that evening and this was one of the matters that would have been placed on the agenda for discussion there – to resolve this clear miscommunication that had happened. Unfortunately, just prior to that meeting she had taken ill and had hardly managed to finish the meeting, and she did not get to the point where the letter and the further treatment of a letter was discussed with the Chairperson. Unfortunately, she ended up being hospitalised and off sick for a number of days. Her colleagues that had stepped in would not have been aware of the letter and so it was not responded to.
However, on her return, and having considered the recusal application, she noted that it was one of the grounds listed in the recusal application, being this apparent adoption of this directive addendum. She was taken by surprise and wondered if perhaps it had been adopted whilst she was off sick. She had made those inquiries and she was told that, in fact, that had not been the case. There seemed to be some confusion about this. For those Members that did not follow the interface that happened between Legal Services and the Chairperson, behind the scenes she would quality control such documents and she would indicate if she was satisfied from a legal point of view that the Chairperson could issue it or not. Of course, nothing of that sort was done from her side, but perhaps the Chairperson could indicate himself whether he had in fact issued that or not, just so that they had it on record. She also noted that that letter sent on 6 September 2022 said that the Chairperson had previously adopted it, but funny enough she had only sent it to him on 31 August 2022. Between that date and 6 September 2022 there was no sitting of the Committee. So there was definitely some confusion around that. However, Legal Services took responsibility because as she had said, they had unfortunately not responded timeously to that letter because of what transpired with her being away. The Chairperson could place on record whatever he needed to on that.
She moved on to the recusal application and the treatment of this application by the Committee. She had listened to the discussion between Adv Mpofu and Adv Bawa that followed the telepathic exchange – as they had put it – in the last meetin, in which they both agreed that it was standard practice that a presiding officer or a judge presides over a recusal application themselves. She thought Adv Mpofu had said that one of the awkward things of such an application was that you had to put it to the person who was being asked to recuse themselves. The Chairperson could of course speak to the awkwardness of that since he had sat through it in the last meeting. Then Adv Bawa had indicated, and correctly so, that she took note that Parliament was unique and that the two legal teams were in agreement that they were only speaking to the issue of the actual presiding over the application rather than the decision for the recusal itself.
Ms Ebrahim said that she wanted to further explore and elaborate on that. Some Members would be aware that in an ordinary case of recusal, in the judicial system or even in a commission of inquiry, it was the person whose recusal was being sought who would not only preside over the application but would also decide on whether the application should be granted – so whether they believed that they should be recused or not. By way of example, the recusal application for Justice Raymond Zondo in the State Capture Commission by the former president had recently been heard. Justice Zondo had listened and presided over that application and then he himself made a determination that he was of the view that he should not be the recused.
Ms Ebrahim submitted that the application for the recusal of the Chairperson and that of Mr Mileham must be somewhat differentiated from recusal applications in the judicial spheres and in commissions that consist of only one presiding officer. Firstly, the Chairperson served as chairperson at the behest of this Committee, having been appointed unopposed by the Committee members. The Members, in turn, served at the behest of their parties, who had found them to be the appropriate persons to sit on the Committee, and, in turn, the parties served at the behest of the electorate, whose vote secured the seats that Members now found themselves in. In addition, the Committee was a constitutionally mandated committee as referred to in Section 194(b). She knew that Adv Mpofu differed with her interpretation on that and was of the view that this was not the removal committee. However, this Committee was certainly performing a constitutional function on behalf of the electorate. It was a function that required all Committee members to participate in the process of making that ultimate recommendation to the Assembly on the removal – whatever that recommendation may be. In other words, this was not Mr Dyantyi’s committee.
It was not a one man show where ultimately the Chairperson would make a recommendation to the Assembly on whether the PP had misconducted herself or was incompetent, as alleged. The Chairperson’s role was simply to preside over the Committee, but not to make decisions for the Committee. Similarly, Mr Mileham is just one of a group of Members who would ultimately collectively make a recommendation to the Assembly, and he had no more power than any other Committee member. Unfortunately though, whilst the rules provided for the appointment procedure in respect of a chairperson, it did not provide for the procedure for the removal of a chairperson on the basis of bias or any other grounds. Thus, the parliamentary rules had a lacuna as far as that was concerned. It simply did not cover it either in the National Assembly rules or specifically in the rules related to this Committee. It also did not provide for a procedure where a Member could be removed by a committee. This was a matter which was usually within the domain of political parties, who may recall members as they so wished. The Code of Ethical Conduct and Disclosure of Members Interests did provide a procedure for conflict of interest, and that would relate to personal pecuniary interests in matters being determined by a House or committee. However, that rule was too narrow to be applied here, but she mentioned it because it was useful to consider and to draw an analogy.
That rule provided that a Member who was conflicted, and that would be your pecuniary or personal conflict, must withdraw from the proceedings of that committee where a matter is decided, unless the committee decides that the interest is trivial or not relevant. Thus it envisaged a role for the committee over and above the duty of an individual member to recuse themselves in the case of a conflict. Thus, she agreed with the evidence leaders and Adv Mpofu that the Chairperson must preside over the application, as he did on 21 September, and preside over any meetings where this application was to be considered. She was of the view that the Chairperson must personally consider the application as it was brought against him, and he was to inform this Committee whether, on the basis of the grounds raised in the recusal application, he was of the view that he should recuse himself or not. Similarly, Mr Mileham must do the same. However, should the Chairperson and Mr Mileham not recuse themselves, the matter could not end there as it would in a judicial proceeding. It followed that because this was a multi-party democratic committee, who has placed its confidence in the Chairperson and elected him as chairperson, as the appointing committee, it must therefore similarly be seized with the question of his removal and the concomitant consideration of the recusal application.
This was in line with the decision of the Constitutional Court in the recusal application heard by that court, very far back in 1999 in the South African Rugby Football Union (SARFU) matter. In that case, Dr Louis Luyt was then the President of SARFU who sought the recusal of four of the justices of the Constitutional Court on the basis of their relationship with the appellant, who was President Nelson Mandela, and who had of course appointed those justices to the bench. They were accused of being biased based on various political and personal grounds. The court there had to consider the procedure it would follow in determining the recusal application. It had regard to the fact that if one judge, in the opinion of other members of the court, incorrectly refused to recuse him or herself, that that decision could then fatally contaminate the ultimate decision of the court, and the other members then may well have a duty to refuse to sit with that judge. In other words, where a judge sits as part of a bench or a panel, that judge must ensure that they do not sit with another judge whose presence would render a proceeding to be irregular. The court then determined that the correct procedure to follow would be two-pronged – the individual justices would have to consider the recusal as it related to themselves, but the court as a whole would also need to consider the recusal application. In that matter, none of the justices recused themselves and the court as a whole then concurred with that decision.
Similarly, her advice therefore to the Chairperson and Mr Mileham was that they would need to individually consider the application and report back to the Committee and then the Committee itself would need to deliberate and make a decision on the matter. However, whilst the Committee may have the power to remove Mr Dyantyi as chairperson, it does not have the power to remove either him or Mr Mileham as Committee members. However, it followed that if the Committee was of the view that they were biased, that their continued presence as a member would then taint the entire process going forward, the question that now had to be answered in the parliamentary sphere was: How do we then secure the removal of these Committee members? Legal Services submitted that the correct thing to do would be to lobby the respective whips and parties who appointed these Members, to remove them on the basis that their continued participation in the proceedings would taint the proceedings and may lead to irregularities. The National Assembly Table could be further approached for advice on this aspect if and when needed, after the Committee deliberated.
Lastly, she wanted to place on record, and perhaps this was stating the obvious, that the recusal application was very serious in nature. It required careful and weighty consideration, in the first instance by the Chairperson and Mr Mileham, and secondly by the Committee members. That being said, she did question the appropriateness of a recusal application given that the Chairperson is not a decision maker and the rules require that the Committee must act as a whole in order to make a finding and ultimately give a recommendation. Thus, having considered many of the grounds of recusal raised in the application, she would have thought that those would have been more appropriately dealt with in a review application, if and only if the Assembly were ultimately to vote in favour of removal based on the recommendation of this Committee. Nonetheless, as the evidence leaders and Adv Mpofu pointed out at the very beginning of this process, the Committee was in uncharted waters and had to expect that there would be stumbling blocks. The process had been characterised by ongoing litigation, various objections, and so on, and all of these are within the PP’s right to contend and raise. She did not want to enter into a debate on the legal strategy. It was not her role to do so and, in any event, that was why there were lawyers, because people differed on how the law should be applied.
However, she did want the Committee to be alive to the fact that based on the outcome of this application; the PP legal team may seek further alternative and urgent legal relief through the courts, which may have the effect of delaying or disrupting this process. Even if such relief is not sought, immediately, this issue of bias in respect of both the Chairperson and Mr Mileham may again rear its head in a review application in the event that the Assembly votes in favour of removing the PP. So it would not be the last that is heard of it if such a decision is taken. She had been at pains since the beginning of the process, to indicate that the cardinal rule underpinning this process was that of fairness. Given the seriousness of the application, it may be wise to seek independent external legal advice to assist this Committee in making an informed decision where the tests for bias could be applied to the facts at hand. Members had to be confident that they have taken a legally sound decision and that they are able to defend that decision if need be. However, any decision taken should not be unduly delayed. The Committee had a duty in terms of the rules to ensure that this process happened within a reasonable time. More importantly, the Constitution directed that all constitutional obligations must be performed diligently and without delay. So this had to be borne in mind as the Committee went forward. She thanked the Committee for their indulgence and would answer any questions as necessary as they arose.
The Chairperson thanked Ms Ebrahim for her brief reflection on the matter and invited Members to indicate their own contributions on the matter. Members were free to do those reflections, but also if they had any clarity seeking questions they could do so.
Gen B Holomisa (UDM) thought the first thing which the Committee should look into was to agree about the procedure on how to handle this matter, without going into the substantive arguments contained in the PP document. This was so that the Committee could be sure about each and every step they took. He was tempted to support the view by the legal adviser who said that the Committee may have to consider asking for independent legal advice. This was so they did not make a mistake or play into the hands of those who might be happy the Committee goes to court if for instance the Chairperson in his personal capacity says, “No, I’m not going to step down.” However, if the Committee looks at the accusation, especially those paragraphs alleging the Chairperson was biased long before this inquiry, he thought that the Committee would have to ask if the House was aware when he was appointed Chairperson, if he declared that he indeed had a view against the PP. If that were the case, were the Chairperson refuse to step down, then the Committee might have to take the process back to the House to advise them. He thought the legal advice by the legal adviser was sound. He would stop there.
Mr G Hendricks (Al Jama-ah) stated Al Jama-ah’s position on this matter. There was a vigorous process to appoint a PP, and Al Jama-ah’s position was that no matter what, the PP must serve her full term of office. However, this Committee was a creature of Parliament. It had been created by Parliament and every political party was required to send a Member to this Committee. If this was a voluntary situation, Al Jama-ah would not have sent a Member to this Committee because they only had one Member of Parliament and one could not cope with all the responsibilities of an MP. However, they were here now. On the Al Jama-ah position, he first wanted to speak about the appointment of the DA Member. He did not think that any Member or the Chairperson had the right to tell the DA who to send to this Committee. If the Committee had problems with a Member that party had sent, then the Committee needs to engage with the DA and try and persuade it to change the Member. He did not think that it was the jurisdiction or the right of the Chairperson or this Committee to decide who the DA was to send to this Committee. Similarly, the Committee or the Chairperson could not decide who Al Jama-ah should send to this Committee, although they only had one MP.
This Committee was a creature of Parliament. While Members serving on this Committee would have an independent mind in making the final decision, it had to be quite clear that one of the decisions that this Committee had done was to appoint Mr Dyantyi as the Chairperson. It was only this Committee, Al Jama-ah felt, that had to make a decision whether they wanted him to continue as chairperson or not. He did not think that the Zondo Commission and other commissions were relevant. This Committee was a creature of Parliament and it was the Members that had to decide, not the Chairperson, with all due respect, whether he should remain. Al Jama-ah wanted to conclude by saying that they had been very impressed with how the Chairperson had handled the proceedings so far. They did not agree with anything that the PP had said in order to have him be recused.
One of the problems was that this inquiry had been dragged on too long. As other parties were in the majority and Al Jama-ah had only one MP, they had to fall in line with the many days that had been set for this particular hearing; it was unlike a committee in Parliament. Al Jama-ah did not agree with that process of allowing a vigorous cross examination. There should be timelines. This matter had dragged on too far. It was very expensive; it was R1 million a day. It was a pity that the suspension was with pay – it should have been without pay, so that there would not be attempts by the PP to drag out this matter. Coming back to the matters at hand, Al Jama-ah felt that if Members, the PP, or anyone had issues with the DA representative, they should engage with the DA. However, the final decision should be with the DA. As far as the Chairperson’s recusal was concerned, he asked that Members’ rights not be taken away.
Mr V Zungula (ATM) asked Ms Ebrahim about the Code of Ethical Conduct, because he thought that should be the point of departure on conflict of interest. The Code at section 5.1.2 spoke about, “the interest must be declared and where appropriate, the Member should recuse himself or herself from any forum considering or deciding on the matter.” The point he wanted clarity on and perhaps it could be personal and the Committee could not venture into such in the public especially in such a forum, that a committee chairperson earned more than an ordinary MP. Now from that perspective, there was a financial benefit derived from being a chairperson. It was something that would be difficult for a chairperson to make a decision based on something that he derived material benefit from. Secondly, he would like to support Gen Holomisa when he spoke about the Committee agreeing on the process. Unfortunately, there was no standard procedure that dealt with such matters.
The biggest issue the Chairperson would face was that he came from a political party that had more Members in this Committee than Members from the other parties. Now, the reality, which was the same as in the Ethics Committee, was that Members of the ruling party would always defend one another even if it compromised the substance of what was being discussed. He wanted to presume that would be the case even here. He had never been to a forum where the ruling party MPs actually held each other accountable for what had transpired. People that did not have an invested interest in the matter, that did not have a political party mandate, would be best suited for this exercise. As Gen Holomisa had said, there was a strong possibility that this could go to court. If it went to court, then the politics would be put aside, and the principle as well as the law would be followed to the tee. It would be wise to follow Gen Holomisa's advice that the Committee should get a legal opinion or legal advice on the matter. The Chairperson would guide the Committee on when they could proceed to deal with the substance of the issues raised.
Mr B Herron (GOOD) observed that it was trite, and it had been said over and over again, that the Committee’s duty was to ensure that this process was fair. It was a precedent-setting process. Whatever Members had done as a Committee, and whatever decision was made on this recusal application, had to withstand scrutiny, had to have the confidence of the public who were observing, and the outcome needed to be credible. It was argued that the process was not a court process, but he thought that the Committee had to accept, or at least observe, that they were conducting a process that had all the hallmarks of a disciplinary hearing at least. If this was not a committee that served as an ordinary oversight committee, the Committee was essentially conducting what had become a trial, where the PP was defending charges levelled against her. He thought that the Committee could not determine bias on the part of the Chairperson or another Member. He thought that was what Ms Ebrahim was saying, that the Chairperson and Mr Mileham needed to make a decision for themselves on whether they were able to approach this with an open mind, or if they had brought bias into this process.
As Committee members, all Members could do was observe the decisions that are made. To some extent, Members could form their own apprehension whether there was bias. However, he thought that ultimately the decision was what the Chairperson and Mr Mileham each needed to make. Once decided, the Committee would consider the application which impacted everyone as Committee members, and they needed to avoid this process being contaminated by bias if there was any. Finally, he disagreed slightly with the comments by Ms Ebrahim when she said the Chairperson was not a decision maker. Ultimately, the Chairperson would not decide on his own whether the PP is guilty of misconduct or incompetence. However, the Chairperson did make decisions along the way that Members were not part of.
He made rulings on procedural applications as they arose. He assumed also that the Chairperson was making decisions on the evidence Members were receiving, because he did not recall ever being consulted on which witnesses came. Members sat as almost passive recipients of evidence. The Chairperson may not make the decision whether there is a finding of misconduct or incompetence on his own. However, the Chairperson was making decisions on the procedure that impacted how Members got to that decision and on the content of the evidence that Members were receiving on whether it is relevant and they should hear it. So there were decisions that the Chairperson made that could influence the outcome of this process, because he made procedural decisions and decisions on which witnesses to call. Finally, he liked the suggestion from Ms Ebrahim that the Committee obtain external legal advice on the second part of her two-part decision-making process where the Chairperson and Mr Mileham needed to decide to recuse themselves, and if they did or did not, what the Committee does next.
Ms V Siwela (ANC) said that she wanted to speak in her mother tongue. She did not know whether there were interpreters here, because a person could only dream in his or her mother tongue. This issue was a burning issue [1:01:15-1:01:33 her language]. She had decided to speak in her mother tongue today, to be able to ventilate issues properly [1:01:40-1:02:01 her language]. No one could challenge that [1:02:03-1:02:09 her language]. Bias, even to the Chairperson, that was completely wrong. Members were independent here in the Committee. Regarding herself, she was a member of the ANC, independently so. She was not here to demonstrate bias in this Committee [1:02:30-1:02:34 her language]. She asked if Members were also allowed to make representations on how they felt about this process, and the way witnesses were being questioned vigorously [1:02:46-1:02:24 her language]. However, this was not happening [1:03:26-1:03:31 her language]. She was not a lawyer, but she had a legal background. [1:03:35-1:03:41 her language]. Members were not children here; they were adults, and could not compromise the National Assembly.
Members needed to execute this duty according to the timeframe [1:03:53-1:03:54 her language]. The Committee could see all of those delay tactics [1:04:01-1:04:06 her language]. She could not answer on the Chairperson’s behalf, but if she were the chairperson, she would make her own view based on this application. Regarding this application, Members were not in agreement with it [1:04:19-1:04:25 her language]. Like Ms Mananiso had indicated, which she thought was wrong, but she thought that that was the way Ms Mananiso was feeling. The Committee could not allow a situation like that where a member of the ruling party was biased. That was wrong [1:04:44-1:04:47 her language]. According to her, Mr Dyantyi was the best chairperson [1:04:50-1:05:08 her language]. The Committee had to allow the process to unfold even if they could change [1:05:13-1:05:20 her language] What must we do? Must we reduce ourselves to a lesser number? No, this was wrong. Regarding the independent legal opinion, the Committee had legal gurus here in Parliament.
Members had to let them advise the Committee [1:05:35-1:05:40 her language] That was why they called each other ‘learned friend’ or whatever. Herself in particular, she was not happy and she would not allow anyone, any Member from any party come and [1:05:56 inaudible] the ANC as the ruling party [1:05:59-1:06:04 her language]. She did not think that this application was assisting this process [1:06:09-1:06:40 her language]. She thought that Mr Mileham was a member like any other Member. She happened to agree with Mr Hendricks who said that each party decided [1:06:51-1:07:13 her language]. Members did not want to be influenced; they were mature enough to be able to take decisions on their own and not be influenced. Here, they were not judging anyone [1:07:23-1:07:25 her language]. However, she requested that they be respected on this platform [1:07:29-1:07:31 her language].
The Chairperson said that he had followed Ms Siwela on a number of points but he did not follow her every word because he did not have an interpreter. However, he hoped that other Members had followed her.
Ms B Van Minnen (DA) thanked Ms Ebrahim for a very good explanation of how the process should probably work. She also agreed with Gen Holomisa that the Committee should not be discussing the merits at this point – they should determine how they were going to take this forward and the process to follow. However, she really wanted to sound a note of caution. As the Chairperson had rightfully said at the beginning, this matter was already running very much behind. The Committee was seeing enormous delays. Part of the problem the Committee was facing was that it was not a court of law. It is a parliamentary committee, although it did have certain characteristics of legal process embedded in it. However, she thought – and she had to believe it was inadvertent – that Adv Mpofu, because he worked mainly in a legal sphere, had in no small part contributed to the sort of push towards it appearing more and more like a trial, and all the problems that brought by trying to superimpose a trial framework over what was essentially a parliamentary committee.
She thought that had contributed to the difficult situation the Committee found itself in now in terms of process and determining a way forward. What she really wanted to raise at this point was that the Committee had to move timeously. The Committee was constitutionally required to act timeously to do its job properly, and Members could not allow this process to unduly delay them going forward. They had deadlines and really did need to meet them. Members had seen state capture in this country and the effect that it had had on essentially delaying all kinds of issues. The Committee really could not afford to have committee capture in the same way. This Committee has to bear in mind that it was in the driving seat and in control of the process. The Committee needed to determine the process going forward, but then it needed to move forward without allowing a complete chill to settle over these proceedings. The last thing Members wanted was this Committee to sit endlessly and never be able to reach a conclusion.
Mr B Nkosi (ANC) said the recusal application was a very serious application brought by the PP team. His question of clarity was if the legal team had considered what 'reasonable' time was in the rules setting up this Committee. Had they considered that this process did not start the first time the Committee met? It started the day a motion was made, withdrawn, and then made, and a panel was constituted – up to the point of appointment of this Committee. The second question was about the contributing factors from the PP team in what he considered as delaying tactics and fishing for different forums at different times. If he were to use a chess analogy, one foot in the gutter, one foot in the urban area, or in the suburbs. In his view, the PP was participating in this process, fully aware that she had to account and take responsibility for her actions. However, she was always eyeing the exit door on the site to look for a forum where she may impugn this Committee process. Is the legal team considering that?
Thirdly, on the points raised for the recusal of Mr Mileham, he would like the legal team to indicate from observations of the record, whether indeed there was bias on his side and the side of Members, and if all procedural decisions they made observed the directives, and if there were objections, why those objections were not raised when those decisions were made.
Lastly, speaking for himself, he brought a very independent mind to the process and would not be influenced by any other person. He thought, quite largely, when he made his contribution, he did not do so on the basis of cross-examination by anybody. He did so because he studied the documents before the Committee. He, in all fairness, asked questions on the basis of what was deposed in the affidavits. If bias was impugned on his side, it would be very difficult because he could prove that his questions were based on the affidavits made and only minimally on the results of cross-examination. He agreed that the Chairperson must preside over this process, including whether he should recuse himself or not – including Mr Mileham. Therefore the Committee tended to agree with the legal advisors that perhaps they should seek a legal opinion to inform them but it would not take decisions on their behalf. Any procedural unfairness in the conduct of proceedings should be raised when such happened, in his view. Lastly, the PP would have access to the courts any way if the decision was taken on review.
Mr X Nqola (ANC) thought that this meeting was set for the Committee to determine if the recusal application met the threshold. He did not understand when the Committee wanted to refer this to somewhere else, when they were supposed to determine this now. Unfortunately, he disagreed with Ms Van Minnen and Gen Holomisa that the Committee must not go to the merits of the content of the recusal application. It was the application that the Committee was dealing with and he was going to go exactly to the contents of the application. The first issue he wished to raise was that he wanted to move that the application be dismissed for the following reasons. He would ask the Chairperson and the Committee Secretariat to assist the Committee to retrieve the record of 13 September 2022 and of the last meeting. This was particularly on the basis that Adv Mpofu had said he was informed by a family member of Adv Mkhwebane that Adv Mkhwebane was sick and was being taken to a doctor. From his recollection, that was not what was submitted on 13 September 2022. He was not quite sure what exactly was submitted on 13 September but he thought that the record would assist this Committee.
The second issue was contained in paragraph five of the recusal application that the Committee did not take time and process the issue of Mr Mileham, that he had an inherent bias and a conflict of interest. That paragraph was misleading because it was this Committee that had even sought legal advice from Ms Ebrahim that was delivered. The Committee had deliberated on the advice sought from the Legal Services of Parliament. Members had deliberated on Mr Mileham and inherent bias and conflict of interest after being well advised by Legal Services. So it was not true that the Committee did not deliberate and did not give due regard to this matter.
The next issue was that there was a constant mention that the PP was appearing in this Committee under protest. This had been noted since day one. The Committee had never had a problem with that statement, as long as it did not relegate the obligation of the PP to account before the Parliament. This Committee was meant to do that work of the Parliament, and they must not be made to feel that they were being done a favour by the PP to appear before this Committee. It was a legal obligation for the PP to be before this Committee. Whatever issues that had made the PP to be under protest must not make the Committee feel that they were being done a favour.
Another issue contained in paragraph 22 of the recusal application was the matter Adv Mpofu had been raising on the narrow or the broad approach on whether the Committee went straight to the motion. Do we narrow the scope of the Committee in terms of what the Independent Panel found as prima facie evidence or not prima facie evidence? His point would be that the role of the Independent Panel was to make recommendations to the Assembly. The Committee did not take instructions from the Independent Panel. Now out of the issues processed by the Independent Panel, it was the role of this Committee to process whatever is deemed fit. Even if the Independent Panel is says that there is no prima facie evidence that the jacket he was wearing was clean, the Committee could go to the depth of that and see if they were in agreement with the Independent Panel or if there were some matters the Independent Panel raised that they wished to explore as the Committee. Then they would take a decision as the Committee on what had been received from the submission of evidence in the Committee.
On the issue of summoning the President, which constantly came up in the Committee as well, the Committee set aside a particular day to process this and agreed that the relevance of the President appearing in the Committee did not meet the threshold they were looking for. If he was not mistaken, the Committee had actually agreed unanimously.
The matter at the centre of discussion was the suspension of the PP. He did not recall, and perhaps the Committee would remind him, the Committee getting into a robust discussion over scathing remarks made by the President about Bosasa / CR17 and all those matters. The PP legal team had exploited the Chairperson since the beginning of this inquiry, compared to the evidence leaders and the Members. So he wanted to disagree completely with paragraph 33.2 of the application. He remembered that constantly it had been happening – the Chairperson had been respectful and humbly reminding Adv Mpofu, “Adv Mpofu, can you please wrap up?” At no point was Adv Mpofu not allowed ample time to finish the points he wanted to raise to the witnesses. But the issue was the Committee must as stipulated in paragraph one of the application, do this inquiry within a reasonable time.
If the Chairperson did not limit people’s contribution to Committee proceedings, the Committee was going to flout what Adv Mpofu was raising in paragraph one of the application about concluding this matter within a reasonable time. Part of what was going to make the work of this Committee very easy was that the Chairperson had an obligation on everyone, which was encapsulated very well in the directives, that when they are told to stop speaking by the Chairperson, they must respect that. When the Chairperson regulates the time for one to contribute to this Committee, one must respect that. The problem of the shouting raised in the application came from those not respecting what the Chairperson was telling them to do and in turn breaching Rule 183 of the National Assembly rules, that one must conform to the authority of the committee chairperson. If they did not conform, the Chairperson was obligated to be assertive towards them. If people were shouting against the Chairperson, the Chairperson would use the authority to be assertive by ensuring that he is firm in terms of what must be done. He wanted to plead with everybody in this inquiry that if they conformed to the authority of the Chairperson in terms of Rule 183, there would not be shouting in this Committee.
He pleaded with everyone to respectfully do that and respectfully raise their issues. Everyone was actually given ample time here to submit whatever matter ought to be submitted. It was even captured in the directives that if there is an issue that is not captured in the directives, this is how it must be dealt with. Hence, the application had been brought to the Committee through that provision of the directives. He would not entertain the two-week request as he thought that Adv Mpofu had clarified that.
There was the relevance of evidence that was adduced in this Committee. Of relevance, there were many issues submitted to the Committee by the Independent Panel. The Committee had an obligation to test those. Amongst those was the harassment, the abuse and the intimidation of the staff in the Office of the Public Protector. So when the staff came to present how they were treated in the execution of their work that did not make this Committee a labour relations tribunal or grievance committee or all those things. It was raised in charge four that there was an allegation of intimidation, abuse and harassment of the staff. So staff members came here whether to deny or to agree with that charge. Now it was upon this Committee during deliberations to say, “Okay, this paragraph from this witness is not relevant.” Remember even if the Committee speaks about relevance or irrelevance, the witness deposed an affidavit which may have passed as irrelevant but may not be completely irrelevant. When speaking of relevance, he did not think the Committee should treat it through a helicopter approach because they would miss the point.
He did not want the Committee to go back to 13 September 2022 but just to remind the public and Committee that what was in discussion that day was the postponement due to the appearance of Adv Mpofu and Adv Mkhwebane in court on 16 September. It was not true to say that the matter related to her illness was raised in the first instance. Adv Mkhwebane being ill came as the postponement was being submitted orally in the Committee. The Chairperson constantly asked, “Is this an apology on behalf of the PP?”, and the answer had been, “No, this is not an apology.” The Chairperson had said – and he remembered very well – that the Committee did not have an apology from the PP. When they discussed this and wanted to be sensitive, the Chairperson had dismissed flighting the provisional medical certificate to the Committee. Documents that were flighted on this platform for everyone to see, were documents that had been submitted to the Committee Secretariat. Adv Mpofu could not come and say, “I want to flight a document now, can I send to you through WhatsApp, this document is to be flighted.” That was not how the Committee operated. The Chairperson was being sensitive to the issue of a medical certificate being flighted. Members did not know what that the certificate contained. The Committee would be bashed and society would retaliate against it on the basis that they had a publicised the medical condition of the PP which was actually in contravention of the Protection of Personal Information Act. The reason documents are supposed to be submitted first is that they must be looked at in terms of whether they are fit to be taken to the public. He had taken that kind of reasoning from the Chairperson, which he thought was fair to the PP as a person, as a human being, as a citizen of South Africa, as Adv Mpofu was putting it.
Those were part of the reasons he was saying that this application did not stand the threshold of being endorsed by this Committee.
On Mr Mileham, part of what was raised about Mr Mileham was that a certain DA person – he did not know the name of that person – spoke about 'champagne' on television and all those things, so the DA had a view. The parties that he had not seen having a public view about this inquiry was the ANC, GOOD, IFP, and ACDP. All other parties had gone to the public and raised their views on what must happen in this Committee such as Mr Zungula here. ATM had its public contribution in terms of what was happening in this Committee. There was Gen Holomisa here, who had stood up in this Committee and said to Adv Mpofu that he must take this Committee to court.
That basis did not stand because the Committee had a number of political parties, and they had a public participation programme on this Committee's proceeding. If the Committee said that Mr Mileham was a DA member and must be dismissed by this Committee on those bases, then it meant that a lot of people should leave this Committee because there were a number of political parties that had gone to the public and made statements about this process. The second issue was Twitter and Mr Mileham. He wanted to repeat that Members should all refrain from opening a parallel social media platform to discuss Committee matters. The ANC had refrained from that, not because they did not have views on it, but because they respected this process, that what we said in public must not taint the fairness and impartiality of this Committee. He respectfully pleaded with Mr Mileham and of course he did not the authority to tell him what he must do with his social media life. But he wanted to respectfully plead with all Members that they tone it down. Members were to respect these proceedings and ensure that we finalised this matter on behalf of the people of South Africa.
Lastly, he wanted to close on the issue of bias and interest. In Hamata and Another v Chairperson Peninsula Technikon Internal Disciplinary Committee, the court explained the difference between holding certain tentative views about the matter and prejudging the matter which constituted bias as follows: “It is our view”, as the court," that it is not bias per se to hold certain tentative views about a matter. It is human nature to have certain prima facie views on any subject. A line must be drawn, however, between mere predispositions or attitudes on the one hand, and pre-judgment of the issues to be decided, on the other hand. Bias or partiality occurs when the tribunal approaches a case not with its mind open to persuasion nor conceding that exceptions could be made to its attitudes or opinions, but when it shuts its mind to any submissions made or evidence in support of the case as it has to decide."
The point made by the court here was that Members were human beings. They were revolutionaries. The fact that they were MPs was because they were revolutionaries. They held views about issues happening in society about whatever subject. It became wrong when Members shut their minds off, in that they could not be convinced otherwise in what they held as their tentative views. This brought the Committee back to the first day of this Committee where they reasoned that they were here without any predetermined judgment. What would convince Members, whatever view an individual Member may have, was the evidence submitted to this Committee. Therefore, deliberations would be able to convince each other on certain matters that were submitted to the Committee. These were the reasons the application must be dismissed by the Committee.
Mr B Maneli (ANC) said that he had been covered quite a great deal by previous speakers. He would not repeat the points already made. He was not present on 13 September 2022 due to another parliamentary commitment that day. He thought it had been better clarified as he listened to the inputs. Indeed, the Committee had received advice. The Chairperson and Mr Mileham still had to apply their minds as the recusal was directed at them. Of course, they were Committee members first because any Member could have been elected as chairperson. However, the Members had decided amongst themselves to elect Mr Dyantyi as chairperson. In that way, it did not take Members completely out in making a determination – if they would have selected the Chairperson wrongly or knowingly that he held a biased view on the process. To the contrary, the Chairperson had been the one assuring not only the PP and her team but South Africans that whilst it was uncharted waters the Committee was sailing on, every intention was not to hold a briefcase – if he were to use the Chairperson’s words.
He submitted that it would appear that the briefcase was held elsewhere. That was his take from paragraph 68 of the recusal application. He had a problem with it in that the Committee would deal with the recusal of the Chairperson now, but if paragraph 68 was anything to go by, they were likely going to have the recusal of other parties – except those parties perceived to be in support of the applicant for this recusal. The words used were that these parties had a "hostile position", meaning the others did not. Therefore it meant – and this was the question he had personally – that before he spoke, because he belonged to the ANC or another Member belonged to one of these parties included here, already they had been prejudiced in the sense that it was already known what they were going to say. So Members were no longer MPs because they were already judged on the basis of the party they came from. Like Mr Nkosi said, quite a number of Members here reflected on the evidence, in particular the affidavits deposed by the witnesses, and Members would make reference to that, because they asked questions on the basis of facts before them, which had been the direction that Members were to adjudicate facts put before them.
Mr Maneli thought that Members from different parties had been able to do that. However, once one looked at paragraph 68, unfortunately it made it difficult even to assess if Mr Dyantyi as chairperson may have bias. In fact the applicant already had a bias that she would never get anything positive from these Members because she had categorised them as hostile and saw that as the majority that proposed [19:34 inaudible] itself and then selected the other parties to appoint. Of course, that was where the question would have come about whether the Chairperson was holding a brief from these other parties – it was because these parties would be known even if they were not there, before the Committee even got the formal report, and the justification would be that “some of them were my clients”. The Committee had never even raised that point. In fact, from the evidence that had been presented thus far, there would be parties that have been party to applications that went to court. Those parties were sitting in the Committee because they were represented in Parliament. At no point would one pre-empt that they would never be objective on the matter before them, on the basis that they had participated in cases in support of the PP.
He was raising this so that it was understood that they could start with one person, but may end up having the whole Committee removed in that way. For example, the Chairperson and the Speaker had to exercise a legal right in defence of Parliament and the Committee on a matter raised against the Committee, then it was said that there was bias. That bias could even go further in saying “Who does the Speaker represent?” As a presiding officer of Parliament, there would be an expectation that the Speaker was speaking on behalf of the National Assembly, not on behalf of herself or himself. The Chairperson and the Speaker had applied their minds but as they did, they had to understand the contributions Members made as they did not elect themselves. The Chairperson and the Speaker first became Members and then they were elected. He would not spend time on Mr Mileham as Mr Nqola had covered most of the points that he had but for his part, he thought the Committee should keep this in mind. Just on those bases, this recusal application was not helping the Committee much.
The last point was also a question of clarity. As raised by Mr Nkosi, one could not bring an issue that had happened months before the Committee process had started, and not stand up to put it on record that one believed there is bias on the part of a Member. In fact, this Member should not be here because this Member would assist in the decision making. His take there was it bordered on what the Committee had dealt with as the framework presented by Mr Hassen Ebrahim. Mr Ebrahim did not talk only to what was expected of a PP, but even what was expected of an advocate, as to what would be ethical. One would not withhold information to use it at a later point. They would not be now identifying loopholes which they should have raised. Adv Mpofu had made this point that, indeed, recusal should not be used as an opportunity because the defendant was looking to escape what could be the outcome.
He was saying this because the Chairperson had opened today’s meeting indicating how many witnesses were left before the PP legal team leads evidence of the witnesses they identified. After he had listened to Adv Mpofu raising the issue of these names being leaked, that some of the people may have not been approached and they may then no longer be prepared to come forward. For a layman like himself, it just left an impression therefore that probably no such witnesses had been submitted. He doubted that one would submit their names as witnesses if they had no knowledge whatsoever of one's intention and commitment from their side. Perhaps the Committee would still get a list of witnesses. But even if there is not to be a list of witnesses, at the centre of this inquiry it was about holding the PP accountable but giving her an opportunity to state her side of the story so that a determination is made. So at the centre, the inquiry is about the PP. Everything else is an enhancement of the process. He wanted to submit that.
Ms M Sukers (ACDP) thought that the opening salvo as the Committee started, gave them a view of what was yet to come – a ride with a lot of twists and turns and hula-hoops. The responsibility of this Committee to the people of South Africa, is to have a process that does not accede, does not come at a greater cost, but follows the mandate it had been given by this Parliament. On fairness, it was necessary to take a broad view before the Committee took a narrower one. In these proceedings, the Committee had to be fair to the PP, to the witnesses and to the people of South Africa. Before the Committee addressed the specific grounds, it needed to consider whether overall the PP had been treated fairly. There were a number of points which her colleague had touched on that may overlap with what she has to say. In the first place, on the Committee there were parties who had voted no doubt for various reasons against the motions that had brought the Committee to this point. It was therefore fair to take the position that such parties felt the proceedings were not justified. Those were for a variety of grounds, some political and some may be based on their view of the PP’s conduct and capacity.
The same could not be said universally about those who had voted for the motions, as Members were by that vote merely voting for the inquiry. In the case of the ACDP and herself, she had no special prior knowledge of this matter. She was here precisely because she did not serve on any parliamentary committee that had oversight over the PP. The Committee consisted of a broad section of views, ranging from those who felt the Committee should not be here, those who had no view, and those who believed there was a strong case to be answered. She did not believe that any Member, irrespective of how they or their party had voted, would not give the PP a fair hearing. If that had been the intention, it would have been possible to limit the involvement of minor parties. But that had not been the case. Therefore the PP was by no means facing a hostile or biased committee. In fact, as indicated by the votes against the process, Members were going to do all they could to protect the PP’s rights. She was grateful for that, as it is offered substantial protection to the PP’s right to fairness. This had to be stated, and some Members had stated that as well.
Secondly, the PP’s right to fair treatment was further protected in that she had her own legal counsel who were here to defend her, as well as evidence leaders who had to offer evidence that was both for and against the PP. There was no prosecutor in this case so the PP had the double protection of her counsel and the facts, because if the facts were in her favour, then the evidence leaders were duty bound to uncover them. Even in an ordinary labour dispute, the employees faced a prosecutor who was trying to get them fired. In this forum, the PP had no such person and therefore the playing field in fact favoured her. Thirdly, in addition, the PP legal team had been consulted on the rules and they made submissions. Even if these were rejected, they had had an unprecedented level of input into how this inquiry was being conducted. This also ensured fairness to the PP. Fourthly, in terms of fairness, the PP had had regular recourse to the courts, up to the Constitutional Court, to challenge this process. She wanted to stress this. She was sitting in the middle of the Northern Cape, where she dealt with schools that were being closed and did not have the means to take provincial or national departments to court because they did not have the money. In essence, something that the average South African that faced a labour dispute would never have, the PP had that.
Moving to the specific grounds, on the scope of the inquiry, she thought it was not possible for a determination to be made because the PP legal team had not properly made out a case. Adv Mpofu had made lengthy opening remarks on scope. However, she had not seen a formal application to the Committee by the PP legal team on the issue. No such application had been made and evidence led on the first ground of the application – and on the first ground the application had to fail.
On the grounds of limitation of cross-examination and relevance, another mistake was made here. It was stated very clearly in the rules that this was an inquisitorial process, and this was a committee of Parliament, and this needed to be underlined. She struggled to understand this but after some research she had discovered South African courts were adversarial – which process was actually very enlightening for her. It was a system in which judges played a much more limited role than in an inquisitorial system where the judge was not confined to arguments that the lawyers made but could go beyond that to determine the truth.
Questions from the bench at any time were common in an inquisitorial system, and in this case would include questions from Members. Adv Mpofu had made a point in an adversarial process, but did not have one in terms of an inquisitorial process, and especially which was not a court process. If the chairperson had made any mistake here, it was in her view not allowing the Committee to ask questions during the evidence leader's initial leading of the witness or the PP legal team’s cross-examination. Then on relevance, the PP and her legal team could be assured that the Committee would look at this very closely and obtain legal advice and discard what was irrelevant to the motion.
On the events of 13 September 2022 and the availability of parties, here again the Committee needed to take a broad view. The process was far behind schedule. Weeks ago it was already noted that it was the longest committee hearing in the history of Parliament, and it was not without cost to the people of South Africa. Every minute wasted meant additional costs. On the ground this meant a house was not built, and all the service delivery challenges due to budget cuts that Members dealt with every day as public representatives.
One of the major reasons for this delay had been the PP legal team’s impression that they were here to cross-examine witnesses the way they did it in a South African Court. The Committee had seen cross-examination for days, and thankfully due to the Chairperson, it had been curtailed. The legal arguments, more properly, must be put in the writing and presented in a general way. She had to add, witnesses here had been subjected to abuse and violation of their rights to dignity and fairness with little regard to the consequences for their reputation or the impact on their future or current employment. This had generated much more heat than light on the process. Adv Mpofu had regularly given vent to his irritation with witnesses. It had become intimidatory. The Committee had seen the impact of that on the witnesses as the days went and how they presented themselves. On one unfortunate occasion even the Lord's name was used in vain. It was as if the context of where the Committee was, was lost. Adv Mpofu regularly went over his allocated time and all of this had been unnecessary. It was regrettable that the Committee had to proceed on 13 September without the PP, Adv Mpofu or Members present. However, it was at least a substantial part due to the waste of time that she had mentioned.
Ms Sukers said she had been ill and absent because of ill health. She had a number of committees she served on. Many of her committees had important bills before them. She wanted to add this Committee had done a lot here in order to ensure that this process was given the attention that it deserved. Adv Mpofu had able junior counsel who could have cross-examined – they did it very well and to the point. She was sure that he could have relied on them on 13 September 2022 as well. The Chairperson and the Committee, in her view, had been cautious. They had been accommodating in appreciation of what was a novel process. Therefore much consideration and too much was given to ensure the rights of the PP to a fair trial. The PP was accountable to the people of South Africa. This was a legislative and oversight body of Parliament. The committees and their chairpersons, unlike judges, were the direct representatives of the people of South Africa.
After careful consideration, and for the reasons she had stated, and those she had not had time to address, she found that the application was without merit and she did not support the application for the recusal of the Chairperson. She felt that Adv Mpofu owed apologies. He had so very well articulated how he did not suffer abuse or disrespect to his person. This Committee, the people of South Africa, and the Chairperson had been unfortunately at the receiving end of abuse and disrespect. The Committee had to proceed and the PP had to directly answer questions to this Committee. Her last point was that it was the PP’s constitutional obligation, and it was also in order for costs to be contained. The PP had to have taken the Committee into her confidence earlier in this process. If the PP did, the Committee would have by now been far advanced and they would not be running into scheduling problems that in part had now led to this application.
Ms O Maotwe (EFF) said that the submission made by Adv Mpofu on behalf of the PP should have been a reality check for all Committee members. The submission by the PP and some of the responses by the evidence leader should have sent a very strong message to all Members to reflect deeply on the manner and conduct of all of them since the beginning of this process. She had heard what her colleagues had said, and she thought that they had listened to the submission having made up their mind – especially colleagues from the DA and the ANC – or they had already taken a decision. This is why they did not hear some of the things that were painful to listen to and to read, and were really inhumane. The last point made by the PP’s submission should guide all Members. The point was that there were reasonable grounds, at least by the one side, to think that they were not being treated fairly. It did not matter whether Members liked it or not. That was what the PP legal team was putting on the table. The Committee could disagree. That was fine. However, the fact that such grounds existed, Members had to take it and allow this Committee to continue with a different chairperson. It was a good thing that Adv Mpofu made it clear and patiently educated all Members.
She was not part of the meeting but she went onto YouTube to follow the proceedings. The Chairperson did not lose anything if he recused himself. If anything, he would demonstrate to all Members, including the public, that the mandate of the Committee was more important, regardless of who the chairperson was. She wanted her colleagues in the ANC to perhaps appreciate that they did not always have to be partisan. They did not have to always use majority even when it was not necessary. The Committee had to use facts on the table.
On Mr Mileham, the EFF’s position was clear and had always been clear from the onset. As the EFF they did not wait. Immediately when it became clear that his inherent bias would not assist the Committee, they had raised this issue with the Chairperson and the Speaker, but the Chairperson dismissed them. He dismissed the EFF’s rational and sensible plea. In fact, they were shocked that Mr Mileham himself availed himself to this Committee. Sometimes Members personalised these matters so much that they even missed obvious matters like Mr Mileham’s involvement in this Committee when his wife was the main complainant. It was a fact, whether it was liked or not. Even if the Committee thought that the PP was incompetent, it had to be seen that Mr Mileham would do nothing but discredit the whole process. Now she did not want to deal with substantive matters raised by Adv Mpofu in his lecture, particularly on the Chairperson’s own conduct. However, she wanted to say that what had happened had happened.
She asked that the Committee see the recusal application for what it was. The PP had solid grounds. She asked that the Committee not waste taxpayers' money by continuing with the process, that they knew that if challenged in court, the Committee was likely to lose. She said this because the Committee kept saying that this was not a court, and therefore they should not consider court-related conduct and practices. However, once the matter ended up in court, the court was not going to say that this was not done in court but in a committee of Parliament. The court would simply look at the matter from natural justice. She wanted to make a plea to the Chairperson, to set the precedent with the future in mind and not be bothered by innate irritations. She asked that the Chairperson recuse himself. It would not do him any harm because, here, a test was not whether Members believed that the PP would get fairness or not. It was whether, given the fact on the table, she had solid and reasonable grounds to perceive or suspect that there could be bias. Some Members were very wrong because they said that the ruling was done somewhere else. The Constitutional Court gave the PP the right to cross-examine. It was in the Constitutional Court judgment. If the Committee proceeded with an unfair process, then they were wasting time and money for everybody. As her last point, she asked the Chairperson and Mr Mileham to please recuse themselves. The Committee was to continue in fairness and in an unbiased manner.
Dr M Gondwe (DA) stated at the outset that she did not support this recusal application, although she was not surprised that it was before this Committee. She thought Mr Nqola aptly put it that right from the onset of these proceedings, the PP had consistently maintained through her legal team that she was participating in these proceedings under protest. It was unfortunate that the application was being brought at a time when the Committee was preparing itself to listen to her side of the story and give her an opportunity to set the record straight on the charges brought in the motion.
She touched on some of the grounds that had been raised in the application. On the second ground about the directives, courts have held that Parliament, and by extension its committees, could decide on and implement its own rules and procedures and function according to those. In terms of that ruling and in this vein, the Committee had developed with the Legal Services Unit, directives to inform and guidance its work – which directives were adopted by the Committee. The Committee as well as the PP and her legal team were given an opportunity to have their say in these directives and how they were articulated.
She thought that the Chairperson had done his utmost best to invoke these directives throughout the proceedings and he had been firm and fair when it came to the application of these directives. At times, the Chairperson had even given Adv Mpofu too much leeway in the manner in which he cross-examined witnesses. Ms Sukers had touched upon that. In fact, she recalled coming across an article in the media that criticised the Committee for allowing some of the witnesses to be abused and intimidated in the course of cross-examination. If the Chairperson had misapplied these directives, it was in allowing Adv Mpofu too much leeway in the manner in which he cross-examined some of the witnesses.
The third ground on the refusal to subpoena President Ramaphosa, the Committee had deliberated openly on this and had even sought legal advice on the matter. On the basis of the legal advice received, the Committee took the decision not to subpoena the President. She emphasised that the decision not to subpoena the President was a Committee decision, not a decision taken by the Chairperson. The Committee had taken this decision after it had determined that calling the President as a witness had no bearing or very little relevance to the work of this Committee.
On the seventh ground relating to relevance, the application suggested that the Chairperson had allowed Members of the Committee to ask questions that were not relevant. There was also an assertion that the evidence led by some of the witnesses was irrelevant to the work of the Committee. She emphasised that this Committee was undertaking a fact-finding inquiry. In her opinion, all the witnesses that appeared before the Committee were able to provide evidence that was relevant to aspects of the charges contained in the motion, including charge four, which Mr Nqola had alluded to, which alleged that Adv Mkhwebane was guilty of misconduct and that she, amongst other things, victimised, harassed, and intimidated staff in the Office of the PP. Therefore, the assertion in the application that this Committee had been reduced to the CCMA or labour dispute office was disingenuous and insensitive to the evidence given by witnesses in this regard. Moreover, because this was a parliamentary inquiry, Committee members who were all MPs, in her opinion, had a right to ask whatever questions they would like to ask without fear or favour or prejudice. The PP and her legal team could not dictate to this Committee or its Members what questions they can or cannot ask, let alone blame the Chairperson for permitting them to ask questions that the PP and her legal team deemed irrelevant.
On grounds 9, 19, 11 and 12 in the application which related to the 13 September 2022 meeting, what had happened during the course of that meeting when Adv Mpofu had levelled threats at the Chairperson was unfortunate and it was disturbing. She held the firm belief that it violated Section 8 of the Powers Privileges and Immunities of Parliament Act, which made it an offence for anyone to threaten an MP for doing their work. Adv Mpofu had gone too far in telling the Chairperson, simply because he refused to postpone the day's proceedings, that he would regret this one day and that his day would come and that he would pay for this. His utterances in this regard were not only disturbing but were unnerving. The Committee had witnessed him unashamedly threatening the Chairperson, an MP, in full view of other MPs and members of the public. Adv Mpofu had even gone so far as to say he was not making a threat but a promise. Adv Mpofu was a silk – a senior officer of the court. As such, his utterances were unbecoming of a person of his position and office. His utterances on that day pointed to the fact that he had no respect or regard for Parliament and its Members.
To this day, Adv Mpofu remained unrepentant and showed no remorse for his utterances. As indicated by Ms Sukers, he had not even apologised for what he had said. Now he was trying to bring this application and suggest that he made threats on the basis that he was going to bring this application. He did not even explain that on that day. The Chairperson had done nothing untoward or unwarranted during the meeting in question. He had simply deferred the cross-examination of Ms Nelisiwe Thejane to a later date to accommodate the PP and her legal team. As such, she stood by the comments made by Prof Lotriet and Dr Mulder on that day, that Adv Mpofu’s conduct be investigated because it constituted a serious violation or breach of the Powers and Privileges Act. She supported the lodging of a complaint with the Legal Practice Council as she was also certain that his conduct was in contravention of the code of conduct for advocates.
Ms Maotwe raised a point of order. She did not think it was fair that Dr Gondwe was now debating Adv Mpofu. This was not the issue on the table. The issue was the recusal of the Chairperson and the Committee member. It was unfair for her to be talking about Adv Mpofu when he was not here to respond for himself. She asked that the Committee stick to the recusal of the Chairperson. Adv Mpofu’s conduct had nothing to do with today's meeting.
Mr B Nodada (DA) raised a point of order.
Dr Gondwe said that Ms Maotwe was out of order.
Mr Nqola agreed that Ms Maotwe was out of order and she had to read the application.
Ms Maotwe told Mr Nqola to keep quiet and shut up as she was talking to the Chairperson.
Mr Nqola said that Ms Maotwe must read the application as she did not read it. What she was saying was contained in the application.
Ms Maotwe reiterated that Mr Nqola must shut up and asked him who he thought he was.
The Chairperson asked that the Members be muted. He asked the Members not to do what they were doing. There was a point of order by Ms Maotwe. She was on the platform on the point of order. Any other person who would like to make a point of order would be allowed. Members could not do what they were doing. He asked that Members please allow Ms Maotwe to complete her own point of order.
Ms Maotwe thanked the Chairperson for the protection. She was saying that it was unfair to start now reducing this meeting to the conduct of Adv Mpofu because this was not what was on the table. He was not here to respond for himself. Why do we talk about Adv Mpofu when he is not here to respond for himself? The Committee was here to discuss the recusal of the Chairperson and a Committee member and they were here to respond for themselves. She asked that the Committee be fair.
The Chairperson thanked Ms Maotwe for the point of order. He had to immediately make a ruling and say her point of order was not sustained. Members had been allowed to make reflections on the recusal application, and they had been doing so since this morning – including Ms Maotwe. So her point of order was not sustained. Therefore, he wanted to proceed and go back to Dr Gondwe.
Dr Gondwe said that she would advise Ms Maotwe to read the recusal application.
The Chairperson asked that Dr Gondwe not do so and continue with the application.
Dr Gondwe continued, saying that grounds 9, 10, 11, and 12 spoke about the meeting in question.
The Chairperson asked Dr Gondwe to skip the point and not contest Ms Maotwe.
Dr Gondwe said that she was almost done.
Ms Maotwe said that it was the powers that he gave Members. They behaved like this because they knew that he would protect them.
The Chairperson asked Ms Maotwe not to do this.
Dr Gondwe wanted to touch on the recusal of Mr Mileham. The Committee had received a legal opinion when his recusal first came up before this Committee, and she would encourage the Committee to stand by that legal opinion and the decision it had taken following the legal opinion. She agreed with what Mr Nqola had said. The Committee had other political parties that had aired their views on the process not only tweets, but also by giving television interviews. The Committee did not complain about what the Members had said during those television interviews. She thought she had said what she needed to say.
Ms D Dlakude (ANC) said she fully agreed with the sentiments expressed by her colleague. Firstly, she welcomed the legal opinion by Ms Ebrahim of Parliament's Legal Services. It was welcomed and the Committee welcomed it and supported it. Then, the ANC would not be apologetic for being many in this Committee, and also for being members of the ruling party. South Africans had voted for the ANC and they had every right to be part of any committee of the National Assembly. So the ANC’s being here, fortunately for them they did not have any predetermined outcome because they were on a fact-finding mission. The ANC did not have any outcome that said the PP must be removed or not be removed. The ANC was on a fact-finding mission. The report of the Independent Panel did not tell them that they must use it, and also remove the PP. It did not say that. It was part of the material that was before the Committee that they were using, including all the affidavits brought to them and all the evidence before them. The Committee’s role was to scrutinise those materials and come to an independent conclusion without being influenced by anyone.
She fully agreed with her colleagues that some parties sitting in this Committee had not reflected anything on social media or in their interviews. Reason being that they respected this process, that it must be independent and fair to both the Committee and the PP. The PP had a right to audi. She would take the stand. She was represented by her legal team, for which the Committee had been sitting patiently. As disciplined MPs, they had never interrupted the cross-examination of witnesses. What the Committee had done from day one was interact with witnesses based on the evidence they put before the Committee. It had witnessed many things that had been happening – the abuse of the Chairperson and other members. The ANC had witnessed and kept their cool, because they did not want to be judged like they were being judged here, by their colleagues as well. The ANC had never done anything. If they were like some of the Members, it was the ANC who should accuse them of having a predetermined outcome.
Instead of reflecting on the material facts and evidence and waiting for the PP to take the stand so that they could make a sound decision, some Members behaved in a manner that they were not here to find facts. They were here to defend something that did not need to be defended because the Committee must be on a fact-finding mission. Mr Nqola and other colleagues had said a mouthful but what had happened on 13 September 2022 was uncalled for. Members had stepped in to say that it was not necessary – the threats and everything. However, Members had not sat down as the Committee to write and report this matter formally. She thought that Members needed to do this as a Committee. They needed to sit down and reflect. She asked that the Committee go back to the onset and take everything that was there so that they could also have their complaints backed by facts. She agreed with her colleagues that the Committee reject this application. The statement made in another committee meeting some time ago where Members were not even there, was reflected in the application, but without even giving the Committee the context in which that statement was made and why it was made.
The Committee could not allow an application that was based on material that they had no knowledge of, to be put before us. If Members were to complain, it was as MPs who should complain about not being given enough time to interact with witnesses. When it came to the PP's legal representatives, they were given enough time. Adv Mpofu had been given enough time and also additional time to question witnesses. The Committee had not complained about that, because they wanted everyone to be satisfied with what they are doing. What the Committee was waiting for was to complete the process and to give the PP an opportunity to state her case. That was what they were waiting for as this Committee, so they could make their own conclusion without being influenced by anything. Members could not sit and fold their arms without questioning the witnesses that were before them. Members would question witnesses the way they saw fit, based on the facts and information they brought before the Committee. That was what the Committee would do, and they could not be dictated to by anyone. The Committee would do it the way they saw fit, as independent, ordinary MPs. She supported that the Committee dismiss this application for what it was.
Gen Holomisa again said that before the Chairperson gave his side of the story or give a judgement on this, that the Committee seek legal advice as suggested by the parliamentary legal adviser. In the meantime, should the Chairperson consider stepping down, the Committee should appoint an interim chairperson pending the outcome of the legal advice. Such an approach, he was sure, would allow the Committee to continue its work as early as the following week. Lastly, regarding Ms Siwela who had spoken in her mother tongue language, some Members were not easily intimidated by the big numbers of her party. Members were here to contribute.
Mr Nqola raised a point of order. The Committee was seized here with an application from the legal team of the PP. The Committee had since 9:00 been discussing what was contained in the recusal application. It was out of order for Gen Holomisa to interact with what Ms Siwela had said, even going to the extent of mentioning her mother tongue being used. It was out of order. It was not part of what the Committee was discussing.
Gen Holomisa said that he did not stop Ms Siwela when she was doing so.
The Chairperson said that Mr Nqola was on the platform.
Mr Nqola said that he just wanted to submit that.
The Chairperson told Gen Holomisa that he would have indicated earlier that he wanted Members to focus on the issue and not necessarily [1:05:12 – 1:50:14 another language]. He asked Gen Holomisa to continue, but to refrain from those kinds of issues.
Gen Holomisa said that unfortunately the Chairperson did not stop Ms Siwela when she was telling the Committee about or boasting about the ANC’s numbers. Members were here to contribute about this application, so they were not going to be intimidated. The UDM had won cases against the so-called big parties in this Parliament. Ms Siwela was to stop intimidating Members, but he was waiting to hear from the Chairperson’s response. He was just saying to the Chairperson, just before he gave his last word on this issue. That was the position of the UDM, that the Committee must seek legal advice from outside. The UDM respected the position of the ANC, who had said they were rejecting this application. The UDM was not here to pronounce on that and would consider that later.
Mr Nodada said the grounds in the recusal application about the Chairperson's alleged bias and unfairness held no water. The reason was because in many instances, to the frustration of some Members, there had been an allowance by the Chairperson for the PP legal team to speak anyhow to Committee members or the witnesses. The Chairperson had given overtime for the PP legal team to make their points and cross-examine. Some of the grounds in the recusal application were 1) nit-picking without giving any context. 2) The evidence provided was limited and did not acknowledge the fairness provided by the Chairperson which had been done to a very extreme extent. In some instances, to an extent that it had been overly done.
On the recusal application for Mr Mileham, the reality of the situation was Mr Mileham on numerous occasions had raised the same concerns directly to the PP legal team through the Chairperson that he had written on social media. There was not anything new that had not been covered by news, articles, television, and media generally, to what he had said on Twitter. Those contents had been expressed in the Committee. They had been extensively covered by the media and for them to be taken now and used as a weapon of some sort for being unfair or biased, actually did not hold any water. In many instances, there were Committee members that had not, either independently or as a group, declared what their position was at this point – because it was not the right thing to do in any case – because all sides of the story had to be heard based on the allegations in the motion that the Committee was dealing with. However, there were specific Committee members that he could mention by name that had declared their position of bias on social media, at TV press conferences, at rallies and on public platforms.
It had been very clear who those Members were that were biased in dealing with this particular motion. If the Committee were to examine that and take the very same facts of who exactly was biased in this Committee in dealing with the motion, it would be found that it was the people who 1) accused the Chairperson of bias that was spoken about in this meeting, and 2) in support of the recusal application. In fact the very same people that had been biased and unfair in this particular process – either to the witnesses or sometimes to the detriment of the PP in the motion that had been put. Now what the Committee needed to do was to be able to examine was this recusal application based on the allegations towards the Chairperson. Are they tested? Do we have a legal opinion and backing and standpoint to support those allegations? He did not believe so. Sadly, with Mr Mileham being linked to that recusal application, the comments that he had made, has he made any pronouncement that might make this process unfair and biased? Also, it did not preclude anybody who was an individual MP, whether he was married to the queen or whoever, to participate in the parliamentary processes or committees as an independent individual MP.
Members were not here to do group things. When they took the oath of office, they did not take it as a collective of individuals. They took it as individual MPs to uphold the Constitution. The Constitution did not preclude anybody who was an MP, despite what their allegiances to whom were. Some people were family members, by the way, in some of these parties, but nobody was precluded from participating in the process of Parliament by virtue of them being a family member, brother, sister, whatever one calls it, of another Member. This narrative that had been pushed here, he felt as if it was a form of defence mechanism to the conduct of Adv Mpofu in making threats to the Chairperson, going as far as to say that it was a promise. This was wrong no matter which side of the fence you sat or which side of the House you sat. If you have an objective mind, you are going to be able to indicate what is wrong and what is right.
He proposed therefore that this recusal application be responded to point by point, with the assistance of legal advisor in the Committee, and rejecting some allegations mainly around unfairness and bias by the Chairperson – which he did not believe had been proven. In fact, the Committee could prove otherwise about fairness, to a very extreme extent. Secondly, the Committee had a legal opinion put together by Legal Services about Mr Mileham – which had been very clear. They had also sourced a private legal opinion on top of that to be able to substantiate the legal opinion by Legal Services that it actually had no ground. Thirdly, on Mr Mileham being accused of bias by virtue of tweeting what was already reported in the media as spoken directly in the Committee, through the Chairperson to the PP legal team, actually had no grounds and held no water. The Committee must not be intimidated and be told that if this is taken to court, the Committee will face the consequences of this. This was not the platform to be making certain threats, on either end. The Committee had to deal with the facts as is.
The reality was that this Committee had been set up to ascertain if the motion that contained certain allegations about the PP was either true or not, based on the witnesses and mainly by the PP setting the record straight. That opportunity was available and the Committee could not be dictated to on how they asked questions to witnesses, and what conclusions were going to be drawn – which, by the way, was going to be a collective decision. There was no one person that could make or manipulate this process to suit them. If the Committee wanted to ensure that they run the process fairly, those Committee members that made biased and unfair statements on social media or in media or any other public platform must also check themselves.
Members could not be accused as individual Committee members that so happened to belong to certain political parties, that they had a group thing. Members took the oath of office as individuals. Those Members that maybe had a group thing needed to check themselves in terms of bias and unfair proceedings. That was his proposal on the recusal applications. Lastly, he thought that the Committee needed to take a resolution. As said by Dr Gondwe and Ms Dlakude, the Committee needed to take a formal stance about the utterances of Adv Mpofu towards the Chairperson and make that a formal Committee resolution. The Committee should take up the issue so that nobody else could come here and threaten MPs, regardless of what platform it was – whether conducting oversight, sitting on a committee, whatever the case may be – because it was part and parcel of the Committee’s responsibility. Further, because it was in the recusal application, it was important for the Committee to deal with some of those substantive issues.
Mr Zungula was hoping that the Chairperson would perhaps guide the meeting, because now the Committee was discussing a lot of things at once. Due to this, it was bound to happen that there was going to be a lot of confusion and misunderstandings. Firstly, when Ms Ebrahim presented there were a few points of clarity on her presentation which he thought would be dealt with, and thereafter the Committee could move on and not find themselves confused or unclear about some elements. Members had suggestions on the process that should be followed in dealing with this recusal application. At the same time, Members were already discussing the merits of the application. And Members were finding time to discuss the conduct of Adv Mpofu, which was a completely different and separate issue that must be ventilated elsewhere. Not here, and not now. There were Members talking about the biased conduct of other Members. He was not sure why or if they indeed genuinely felt that those Members were biased. Why do they not make an application for those Members to be recused? It seemed as if they were now threatening this process and threatening the independence of the Members on this platform by saying “so and so is biased” or “so and so has pronounced in the media”. If indeed those Members genuinely felt so, why are they not initiating the process for calling for those Members to be recused?
Mr Nqola said that the Committee had a problem in this meeting. If the Chairperson opened a round of discussion, all Members submitted respectfully and there was another round that opened for Members who wanted to reply or correct statements made by others. It would have problems for the Committee because everyone wanted to respond to every Member that said anything. He respectfully pleaded with the Chairperson and Members that it would not take the Committee anywhere.
The Chairperson noted Mr Nqola’s concern.
Mr Zungula said that there was a lot happening. It was not helping the process when the Committee had Members deliberate on various and different issues all at once. To assist the process, he asked that 1) the Chairperson ask Ms Ebrahim to respond to the questions of clarity. 2) The Chairperson make a determination on the process to be followed on this recusal application. If the Chairperson ruled that the Committee can deal with the merits, Mr Zungula and a couple of other Members had not dealt with the merits because they were waiting for the Chairperson’s direction or ruling as chairperson. In dealing with the merits, then the Committee would be able to deal with some of these wild allegations levelled against some Members by people who did not want to be bold [1:21:28 – 1:21:35 another language]. Another thing he reminded them was that it is the Chairperson who needed to make a decision. He did not think this application required the Committee to make the decision whether the Chairperson be recused.
This was not a motion of no confidence in Mr Dyantyi as a chairperson. A motion of no confidence would require that the Members discuss and deliberate and the Committee takes a decision that he must no longer be chairperson. This was a recusal application where the Chairperson must make a determination; he must decide, and after deciding then the Committee would move on. However, by allowing or leading the Committee to discuss and take positions, whether in support of the application or not, procedurally it was not in line with what was happening and what needed to happen as Ms Ebrahim had stated earlier on. That was why he wanted to repeat that the Chairperson must make a decision on whether he recused himself or not. Then Members could discuss as a Committee. However, it was not going to take them anywhere if they were going to go around in circles. The meeting had started at 9:00; it was 11:30 now. It was almost two and a half hours later and there was still no conclusive direction the meeting was taking. It was because the Chairperson was failing to direct the meeting. Hence, there were a lot of Members talking about different issues at once. He moved that 1) Ms Ebrahim be allowed to respond to the questions of clarity. 2) The Chairperson made a decision on whether to recuse himself. The Committee could then deal with the process and the merits if need be.
The Chairperson confirmed that Mr Zungula would get an opportunity of hearing from Ms Ebrahim and himself.
Ms Maotwe said that it had come to the EFF’s attention that the Chairperson had actually served on the Justice Portfolio Committee, where he was conducting oversight on the PP – that was one. The Chairperson had also been part of the Rules Committee that made the rules, including all the rules in Parliament. Those make the Chairperson conflicted. There was an automatic interest on the Chairperson's side because he was holding the PP accountable in the Justice Committee, but also then went on to make the rules. Based on those grounds as well, the Chairperson should please recuse himself.
The Chairperson thanked Ms Maotwe for sharing the latest information.
Ms Siwela said that she was not intimidating any Member and it was not her intention to intimidate any Member on this platform. If perhaps the Member felt that she was here to intimidate other Members, she was simply expressing her views like any other Member. She just wanted to put on record that she did not have such an intention because she understood the rules of the House. They were Members of the House. All of them were equal and would need to be given that opportunity or space to deliberate freely. Mr Zungula had covered her now when he said that the Committee must allow the legal representative to answer the questions. The ruling should come from the Chairperson, not from the Committee. She respected that. She wanted to clarify that maybe it was because she was using her mother tongue. She had never intimidated anyone and that was not her intention.
Ms M Tlhape (ANC – Alt) supported the proposal that Committee members reject the recusal application for Mr Mileham. It had been addressed by this Committee and there was an understanding. As for the Chairperson, she wanted to indicate that he always maintained, even when they started, that fairness…
The Chairperson said that Ms Tlhape had a network challenge. In the meantime, he asked Ms Ebrahim to quickly make her final comments in response to the issues that had been raised. Thereafter he would make a summary of the meeting and the way forward.
Legal Services’ response
Ms Ebrahim started with Mr Zungula who raised the Code. The provision in the Code reads that the Member must withdraw from the proceedings of that committee or forum when the matter is considered or decided – that being a matter where there is a conflict of interest, unless that committee or forum decides that the Member’s interest is trivial or not relevant. So the duty is placed on the Member, firstly, for disclosure. Secondly, for the Member, if there is a conflict, to remove themselves, and it allows the Committee to make a determination otherwise, irrespective of what the Member has disclosed, if the Committee is of the view that that conflict as disclosed is trivial. The Code is limited to conflicts of interest. It does not go as wide as bias in the general understanding of that term, and the focus is on pecuniary or personal interests. That being said, the remedy where a Member is of the view that another Member has not properly withdrawn from proceedings where they ought to have withdrawn from proceedings, is the laying of a complaint in terms of that Code with the Registrar for Members' Interests. That would be the only remedy as far as the Code is concerned, because where a Member has breached the Code, what follows then is the complaint process for that apparent breach.
What she also wanted to touch on from Mr Zungula was that she was unsure if he had missed the first part of her presentation. As she understood him, he was of the view that the Chairperson should deal with the recusal application and the Committee should not play a role. She disagreed for the reasons she had stated earlier. The effect of that would be that if other Committee members were of the view that the Chairperson was biased, notwithstanding the Chairperson was of the view that he was not, they then allow themselves to participate in a tainted process and that would not be fair. In fact, the rules provided that the Committee must ensure that the process is fair so there was a duty on all Members. That being said, it may be wise if the Committee does determine – and as she was reading the Committee there was general agreement – that they seek external legal advice. They put this question to counsel as well on the procedure to see if there is agreement as she had proposed. The Committee could then consider that at a later stage if it wished.
On the question from Mr Nkosi about the meaning of a 'reasonable' timeframe, the answer was as long as a piece of string. She could not put a number on it. What she could do was to give the Committee a sense of the amount of time spent so far. The motion was tabled on 21 February 2020 more than two years ago, and soon it would be three years. The panel report was adopted by the House on 16 March 2021. This Committee had met for the first time and the Chairperson was appointed on 20 July 2021. It had been 14 months since this Committee process had commenced. When the rules spoke of a reasonable timeframe, it was on the Committee portion of the process from 20 July 2021. In considering what would be a reasonable timeframe, the Committee would be remiss if it did not consider the balance of the PP’s term. Her term ended in October 2023. Also the Committee should consider the public interest in the matter, and the fact that there is now an Acting PP and so on. So there were various things that the Committee would need to consider but the bottom line was that the process should not be unduly delayed at all.
She briefly replied to Mr Herron who he had disagreed with her that the Chairperson was not a decision maker. There might have been a misunderstanding. Her point was that the Chairperson was not the decision-maker on the final recommendation that would go to the House – that was a collective mandate that the Committee would execute as a whole. She did not want to get into an argument on legal strategy, but her view was that the issues raised in the recusal application would be better placed in subsequent review proceedings if the Committee got to that stage. She did not think that it was timeous or that it made sense necessarily to raise them now. She appreciated what Mr Herron had said that certainly the chairperson made determinations from time to time as the Committee proceeded.
Those were the only questions of clarity. She would of course be able to assist the Committee in considering any legal opinion received or to provide any other advice that the Committee required.
Summary and way forward by Chairperson
The Chairperson took this opportunity to thank the legal advisor team and all Members for their contributions and reflections in today's meeting. He wanted to give a brief summary and the way forward. In so doing he would also respond to Ms Ebrahim on the addendum. The first point he had to make was that for the whole of the following week, they would not be having a meeting as planned and as reflected in the programme. The intention was that after the following week, the Committee would need to convene a meeting. In other words, the Committee give it a break for the whole of the following week. In that first week of October, the Committee would convene a meeting that he would chair consider a day, which Members would be informed about. In that Committee meeting, he was hoping that they would be able – and this was the determination by Members – to present two important things.
1) As chairperson he would table the response to the recusal application by the PP legal team. There were two things that must not be conflated. There was the need to respond to each of the 12 grounds in detail, paragraph by paragraph, in a very thorough away. If one had to respond even to the commas and full stops that were there, that was exactly what the Committee was going to have to do. At the close of the 21 September meeting, he made an undertaking to the PP legal team that facts matter and our responses would be thorough to demonstrate how these facts matter. This included all 12 grounds and all the issues that had been raised. In the next meeting he would have to report back and give his response as the chairperson who is presiding over this process.
2) In the same meeting Ms Ebrahim would be in a position to table the legal advice that Members have requested. Legal advice could not be done on its own, because the legal advice did not substitute a detailed thorough response to what had been put as a recusal application. He had listened to Members indicating that the Committee needed to do that. In that meeting, that was what they were going to have to do – they would have to work and plan towards that and deal with those two issues in detail in such a meeting.
Secondly, on the addendum, that addendum was not issued. He had asked the evidence leaders who worked on that to check with Mr Johann van Loggerenberg, Mr Visvanathan Pillay and Ms Basani Baloyi for a further opportunity for them to come. He was aware that that process had been undertaken. If he had issued that addendum, he would not have done that. That he clarified now even before he brought a response to some of the issues raised here.
Thirdly, he heard Members indicating – and he was going to put these two issues back for decision making – as he summarised. 1) Members had recommended that the Committee must initiate a process to investigate the threats made on 13 September 2022. 2) A majority of Members in this meeting had indicated that even though they respect the fact that the Chairperson must still come and make his response to the recusal application, as Committee members who had been part of this process in the majority were rejecting this application. He would record that Members were very clear in saying that. There had been a request and support for legal advice. There had been a request for the Chairperson to recuse himself. Those that asked the Chairperson to recuse himself, he had already indicated that there was a date when they would hear the Chairperson respond to their request. The response would be in a very thorough and detailed manner, responding to that application, and at the same time it would be attending to the request for recusal. As things stood, before he made that response, he remained the chairperson of this committee. He would chair the committee that would give a response and decision from the chairperson, as well as the legal advice tabled to the Committee.
He had allowed Members enough time to express themselves. Unlike in the inquiry there was a specific time that was determined based on the directives. Today's meeting was your meeting as Committee members. There was no Member that he said, "This is your last point, stop”, because Members needed to express themselves on this. He had asked Members to reflect on the recusal application. Some had chosen to deal with the matters as they deemed fit. Others were waiting for the Chairperson to make a response and that response would come. That was the summary to all Members as they prepare to come and give a very concrete blow-by-blow response.
As he promised Adv Mpofu, that response would indicate that facts matter. The Committee was not going to get into that now but were going to do that because they were very mindful of the importance of this process from the very beginning – in the manner they were presiding over this and handling matters here. What is important here is the institution of Public Protector South Africa. What is important here is the fact that the head of a Chapter Nine institution is coming to a parliamentary process as part of an exercise for accountability. There have been a lot of incidentals throughout this process; he would continue to urge Members not to be side-tracked by those incidentals. Members must stay focused in order to do this work. They had to do this work and conclude it. However, they should wait for that meeting when they would be bringing that very comprehensive response to the issues that have been raised. He had taken note, with a very great deal of patience, all the issues Members have raised, even though as a chairperson he would still have to make that determination.
He had taken note of all of those issues. At this point, he was not going to respond to any of that. The response would be in the form of what would be tabled to the Committee, presented by the Chairperson of this Committee, and also sharing with Members by then, hopefully, the legal advice – so that both went in tandem. He requested someone to move support for this key process and the recommendation that the threats issued must be investigated by the Committee. He was going to recognise hands for that. After listening to Members, a majority of the Committee was of the view that what is in front of the Committee as an application had no merit. As a chairperson he was still going to have to respond to that.
Gen Holomisa said that the Chairperson had made a well-articulated ruling insofar as this challenge [1:48:34 – 1:48:44 other language].
The Chairperson said [1:48:44 – 1:48:56 other language].
Ms Mananiso said that she would want to align herself with the Chairperson’s sentiment he had alluded to just now. That was what she wanted to second.
Mr Nkosi said that he moved specifically that the Committee investigate threats to the Chairperson by the PP team, and report back to the Committee as determined by its own processes
Mr Nqola seconded that.
Dr Gondwe seconded the ruling the Chairperson had made. She supported it. She wanted to add that she would support a complaint by the Chairperson or anyone else to the Legal Practice Council about Adv Mpofu’s conduct in the meeting of 13 September 2022. That was just an aside.
The Chairperson said that at this stage they were leaving it at an investigation by the Committee. He asked that it be left at that point.
Dr Gondwe noted the Chairperson’s point.
The Chairperson thanked Members for their time and contributions. He was wrong to think that this would be a short meeting but he understood why it was long. Members had to contribute and express themselves. That was very much appreciated, and very much educative in their approach, he was empowered as the Chairperson.
The meeting was adjourned.
Dyantyi, Mr QR
Denner, Ms H
Dlakude, Ms DE
Gondwe, Dr M
Hendricks, Mr MGE
Herron, Mr BN
Holomisa, Dr BH
Jafta, Mr SM
Joemat-Pettersson, Ms TM
Mahlaule, Mr MG
Mananiso, Ms JS
Maneli, Mr BM
Maotwe, Ms OMC
Mgweba, Ms T
Mileham, Mr K
Msimang, Prof CT
Nkosi, Mr BS
Nqola, Mr X
Siwela, Ms VS
Skosana, Mr GJ
Sukers, Ms ME
Tlhape, Ms ME
Tseke, Ms GK
Van Minnen, Ms BM
Zungula, Mr V
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