Information Regulator concerns; Judge Impeachment Guidelines; SAHRC appointment process, with Deputy Ministers

Meeting report

[PMG draft report]
Opening remarks
The Chairperson said the Committee had a busy day. It would start with the listing and conditions of service for members of the Information Regulator. The SAHRC would follow. Thereafter, the Committee would deal with the matter of Judge Motata and the update on the study tour, correspondence for the Minister of Transport. He proposed that the meeting end by 13:00 pm so members could attend the House plenary.

The Chairperson said the Committee had engagements with the Information Regulator on a number of occasions, which consistently raised the issue of its listing. It also raised the fact that it was dependent on the Department of Justice for procurement, which compromised its independence and created conflicts of interest. There had never been a determination on its conditions of service. It did not know how much leave period staff members could have in a year. It was only told that the chairperson would be remunerated at the level of a Director-General. The Committee heard some of the Regulators initiating proceedings against the Regulator because they were not paid. Sometimes the scale would change, so they asked for the Committee to intervene. This matter was raised with the Department of Justice, Department of Finance to a point where they wrote several letters to the Department of Finance that were not responded to. A meeting was held in 2018, and subsequent to that, they claimed some of the letters they wrote to the Minister of Finance and acting Director-General of Finance were not answered. This meeting was called to identify the issues behind this and how the Committee could assist. The Committee was concerned because the Information Regulator accounted directly to the National Assembly. The National Assembly had an obligation to protect that Regulator. The Information Regulator was independent and accountable to the Constitution and the law. That independence needed to be seen in action. The Committee wanted to intervene to see how to ensure this impasse was dealt with.

Deputy Minister’s brief
Deputy Minister of Finance, Mr David Masondo thanked the Chairperson and greeted everyone in the meeting. The Ministry and the Department appreciated and understood the importance of the Information Regulator and other such institutions in our democracy tasked with promoting and protecting the rights of South Africans. It was understood that the Information Regulator was established under the Protection of Personal Information Act and the Promotion of Access to Information Act. The Regulator had the primary role of promoting and enforcing the protection of personal information and access to information in South Africa. The Information Regulator had to be provided with the requisite capacity to properly execute this function. The Ministry understood there were challenges with finalising appropriate institutional structures and remuneration set-up to allow the Information Regulator to move forward with its duties. The Ministry acknowledged the difficulties the Regulator faced in this regard. Today’s matter was the determination of benefits and conditions for members of the Information Regulator, the obstacles, and the way forward. The Regulator consisted of a chairperson and four ordinary members, two of whom were appointed full-time. These members were appointed by the President in December 2016. These appointments were in line with the Protection of Personal Information Act. The Regulator needed to consult with the Minister of Finance on the establishment of its administration and the pay structure of its employees. These consultations were ongoing and took much longer than anticipated. The chairperson of the Regulator asked that the Public Finance Management Act (PFMA) be amended by including the Information Regulator under Schedule 1 of the PFMA. After due consideration, it was the Minister’s view that the Ministry was not vested with powers to amend Schedule 1 of the PFMA. The Minister of Finance and the Minister of Justice and Correctional Services were of the view that the review of all institutions that fell under the Justice Portfolio, including the Information Regulator, was necessary before a final determination of conditions of services appropriate to the Information Regulator could be determined. This process would allow a proper understanding of the related financial implications. These could not be determined before this review was undertaken. This review fell under the obligations of the Department of Justice and had to be done with the support of the National Treasury. The remuneration practices in government entities had become misaligned because of a fragmented system. Significant differences existed between senior managers' remuneration in public service and those in municipalities, public entities, and state-owned entities (SOEs). This was why the Ministry agreed with the Minister of Justice’s suggestion, that this review had to be performed. The Chief Directorate of the National Treasury was tasked with assessing the matter and was in regular contact with the Department of Justice and the Information Regulator. This was done with the aim of developing a roadmap on how best to do this in a timely manner that did not continue exerting pressure on the Information Regulator’s operations.

In summary, the Ministry was of the view that there were three or four issues at hand. The first was whether the Information Regulator should be a Chapter 9 institution. Its view was that this did not fall under the Ministry of Finance. Secondly, the remuneration for the conditions of service of the Information Regulator needed to be preceded by a review, some sort of benchmarking exercise. This was being done by the Department of Justice with the support of the National Treasury. Thirdly, the Department of Justice wrote to the Ministry seeking concurrences with the existing conditions of service, which did not include the issue around remuneration of members of the Information Regulator. This was already catered for; these employees were being paid according to the existing rates. The remuneration was being reviewed. There were other aspects of the conditions of service, which included leave, official travelling, etc. This took long and should have been quickly dealt with. Where these other aspects of the conditions of service were concerned, the Ministry would ensure that it expedited the process of concurrence. This was because the Information Regulator being in limbo on some of the conditions of service was not right. These issues made it difficult for the Information Regulator to operate. The Ministry undertook the expediting of this process whilst sorting other broader issues, which could take longer. It would quickly deal with the other aspects of the conditions of service. Without consulting the Minister, he did not think it would take longer than a month to finalise this issue and come back to the Committee. He was speaking about those aspects that required the immediate concurrence of the Minister.

Discussion
The Chairperson thanked the Deputy Minister for the briefing. It was deeply concerning that this matter had been ongoing since 2016. It simply meant that the Executive and Parliament passed along without knowing what benefits those employees would have. This was poor planning and recklessness. He was pleased at the indication that the Ministry was prepared to come back to the Committee with something tangible within a month. A second term was coming to an end without basic things having been done. The Committee could not say it was committed to the Information Regulator’s independence as an institution. This was very critical. This independence needed to be protected because it was also about the Information Regulator’s credibility. Even if it wanted to do things, it was seen as a sub-programme of the Department of Justice. This was not the Legislature’s intention. He allowed the Committee members to express their views and ask questions on the presentation made by the Deputy Minister.

Mr W Horn (DA) thanked the Chairperson and greeted everyone in the meeting. He agreed with the Chairperson, speaking on full functionality, this was an institution and legislation of the past few years. The Committee was faced with debilitating inefficiencies, which was a massive concern. He welcomed the report to be presented within a month. He mentioned the final presentation the Committee would be receiving. One aspect at the heart of all this was the issue of the listing. He did not know whether the Deputy Minister was in the position to brief the Committee on that. To his understanding, this had been at the heart of the issues. Remuneration was important. However, for the full functionality of the Information Regulator, the listing had been at the core. He was concerned that the presentation did not deal with this.

Ms Newhoudt-Druchen thanked the Chairperson and greeted everyone in the meeting. She thanked the Deputy Minister for the presentation. She could not further emphasise what the Chairperson and Mr Horn said. It was disappointing that the Head of the Information Regulator had to come before the Committee and ask for assistance on the issues it had. The Information Regulator dealt with critical things, especially the protection of the country. There were a lot of cyber attacks, etc., and its work was critical. Why did it take so long? What was so complicated? Why can the issue not be resolved, especially the conditions of service? Why, and what has been so difficult to resolve this issue?

Adv G Breytenbach (DA) thanked the Chairperson and fully agreed with the comments made. It was exceptionally concerning that from 2016 till now, the Information Regulator had struggled. It went under the massive burden of perennial and chronic underfunding. It was an important office and had to take care of so many important issues, not only access to information but cyber security and other very serious issues. It had to do all of this without sufficient funding to do so. Everybody did lip service to the issue and proclaimed its importance. She thanked the Deputy Minister for the briefing and his attendance; she was disappointed that the Minister could not attend. The Information Regulator was a very important office and needed to play a massive role. It was one of the offices that had to be funded. The kind of work it did was not cheap. It was no good giving it the budget of a box of Smarties if it was expected to do a Rolls Royce job. It was not going to be possible. No will to properly resource the Information Regulator was demonstrated. She found this extremely disappointing. It showed there was no seriousness in tackling the issues the Information Regulator was responsible for. It could do its best and work 24 hours a day, but with its resources, it could not fulfil its duties. She hoped some difference could be made to remedy the situation in the near future. She also wanted to hear about the issue of the listing. It was deeply concerning that the matter had still not been finalised or even addressed.

Ministry of Finance response
The Deputy Minister thanked the Chairperson and appreciated the comments made by the Committee members. He accepted the criticism that this matter had taken too long. He took full responsibility on behalf of the Department for delaying this matter and committed to returning to the Committee within a month with much more tangible progress on this matter. The Ministry acknowledged the importance of the Information Regulator but was slow in resolving some of its challenges.

On the listing, the Minister did not have the authority to establish constitutional institutions. There were no powers vested in him to amend Schedule 1 of the PFMA. However, in terms of section 47 subsection 1(a) and 1(b) of the PFMA, the Minister could amend Schedule 3 to include in the list of all public entities that were not listed and make technical changes to the list. The Ministry required some guidance on whether the listing was in relation to making the Information Regulator a Chapter 9 institution. If so, then that required a different process altogether. The Minister would participate but did not have the authority to deal with the listing in the contents of making the Information Regulator a Chapter 9 institution. He did not deal with this matter directly on a regular basis. There were certain questions that seemed to be off the mark. It was only now that he dealt with this matter in the context where he was asked to appear before the Committee. He asked for forgiveness in advance if there were certain questions that were off the mark. If the ask was not to make the Information Regulator a Chapter 9 institution, then it came from a recent thing that he had. The Ministry would return within a month to deal with those important aspects like the conditions of service. For the Information Regulator to work on the basis of certain conditions of service, that office required the concurrence of the Minister of Finance. Unfortunately, this took too long.

Discussion continued
The Chairperson thanked the Deputy Minister for his response and declared a commitment to return within a month. This would form part of the way forward.

Ms N Maseko-Jele (ANC) noted that by the Deputy Minister’s admission, there had been a delay. Was he aware that there was something like this? She mentioned the Deputy Minister saying this would be taken care of in a month’s time. Was he aware of what is happening with the Regulator? If so, for how long?

The Chairperson said the Deputy Minister did not deal with these matters on a daily basis and became aware of this issue when he was delegated to deal with the matter today. The Committee should hold him accountable for his commitment.

The Deputy Minister said this was correct. The correspondence was largely between the two Ministers. The matter was brought to his attention by the Deputy Minister of Justice as they prepared for the meeting. This was why he received a full briefing on the matter. There was a division of labour within the Ministry, but this matter was not within one of his focus areas. Now that the matter was assigned to him, he would return to the Committee about the aforementioned aspects.

Ministry of Justice and Correctional Services brief
Deputy Minister of Justice and Constitutional Development, John Jeffery thanked the Committee for putting this item on the agenda. This had been an ongoing issue. He thanked the Deputy Minister of Finance for his attendance and commitment to resolving the issues. On the issue of listing, the problem was that the Protection of Personal Information Act stated that the accounting officer of the Regulator should be the Chief Executive Officer (CEO) and not the Regulator. In terms of the PFMA, that could only happen to government departments and constitutional institutions. There was a conflict in the law, between the PFMA and the Protection of Personal Information Act. This needed to be resolved. Making the Information Regulator a Chapter 9 institution was not the issue, it was whether it could be related to Schedule 1 which was constitutional institutions. The Regulator was not a department, hence why Parliament wanted the CEO to be the accounting officer. Although it was not mentioned in the Constitution, it was among other bodies in Chapter 9 institutions like the Demarcation Board. It was set up to ensure the implementation of the rights to access of information and privacy. This was the issue with the listing. He was involved in the processing of the Bill in Parliament. The National Treasury was very involved in the Bill with the implications for financial information; it did not identify the issue then. This was the issue. It was a question of access and the accounting officer as the CEO. In terms of the PFMA, that only applied to government departments and constitutional institutions. The Minister of Finance could not amend the PFMA. It was a finance Act, so the Ministry of Finance would have to amend that Act.

On the benefits and conditions of employment, the Department approached the Regulator and asked for its proposals. The Information Regulator sent its proposals together with a request for its status to be upgraded. This request included being paid at a higher level and being benchmarked with the Independent Electoral Commission (IEC). The Minister of Justice forwarded this to the Minister of Finance, that issue required more discussion and research. However, the Minister requested concurrence with the Minister of Finance on the conditions of service and benefits. It was good that the Ministry committed to responding to this within a month. He hoped the National Treasury officials could look at the question around the Regulator having the CEO as the accounting officer; this was stated in the Act. This did not correspond with the PFMA. What can be done about that? Can the PFMA be amended to ensure the Regulator was under the same section as government departments and constitutional institutions? Parliament did not want the members of the Regulator to be the accounting officers. He gave this information for background context.

Discussion continued
The Chairperson suspected the Committee would be back where it was in a month’s time. When he read the document, around 2018 a similar meeting was set and there was no agreement. He would have thought by this time, there would be proposals for immediate relief and long-term solutions to this specific problem. The National Treasury would look at the broader impact of its possible amendment to the PFMA. This problem was no secret to the relevant departments and the Committee and he would have thought they would be much wiser in finding a solution. He did not think they were any wiser, this was merely a diagnosis of what the problem was. He was not convinced there was a solution.

Ministry of Justice and Correctional Services response
The Deputy Minister said that was on the listing issue. The Protection of Personal Information Act specified that the CEO be the accounting officer. The problem was that the PFMA made no provisions for that. It was only for government departments and constitutional institutions where the Minister was the executive authority for government departments and the boards and committees as the executive authority for constitutional institutions, with the CEO as the accounting officer. Was Parliament wrong when it passed the Protection of Personal Information Act to say the CEO is the accounting officer? He asked this question back to the Committee. Should that act be amended? Otherwise, in terms of Schedules 2 and 3, the boards were the accounting officers. He personally thought it was correct that the CEO be the accounting officer and not the members. He thought Parliament was correct, but he could be mistaken. A way of accommodating this in the PFMA should be found. The one approach was to list the Information Regulator under Schedule 1, which did not make it a Chapter 9 institution. It was for the purposes of the PFMA that ultimately the question was: should the CEO of the Information Regulator be the accounting officer?

The Department was tasked with dealing with the issues of the conditions of service. He was confident this would be resolved by next week.

Discussion continued
Mr Dyantyi thanked the Chairperson and made a suggestion. He did not want the meeting to be prolonged by the brainstorming that was happening. He did not know if brainstorming was the purpose of convening the meeting. The Deputy Minister of Finance was explicit in areas where the Ministry had no clarity of its own but gave a determination to return after a month, which the Committee accepted. Even if the Ministry returned after a month, with that brainstorming the Committee would be back to the beginning. Nothing that was being said was going to happen. He suggested using the period before the Ministry returned, to ask the relevant officials mentioned to do some of the tasks. This was to ensure there was progress beyond the diagnosis. What are the concrete suggestions and proposals? In that process, it could help that the two departments and ministries engage with one another and return to the Committee with some form of coordinated approach.

The Committee would do its own assessments and find clarity on its own issues whether it was in the form of getting proper legal opinion, but what it was doing now was not helping. It heard both Deputy Ministers speak. He suggested that the Committee concretise.

The Chairperson agreed with Mr Dyantyi

Finance and Justice Deputy Minister responses
Deputy Minister Masondo fully concurred that the issues around the listing required all relevant parties to do their homework. On whether the CEO should be an accounting officer of the Information Regulator and the implications of this where the PFMA was concerned, it was correct to say that the board was the accounting officer in public entities. It was the board that made determinations and delegated authority to the CEO and other committees. This issue required the Ministry to apply itself. He suggested that the Committee have a conversation with the Standing Committee on Finance on how the issue around the listing could be solved. The Department of Justice undertook the issues around remuneration, conducting a benchmarking exercise that it would share with the National Treasury and agree on the appropriate remuneration. The conditions of service required concurrence, which had financial implications that could be rectified by the Minister concurring. He appreciated the Committee’s guidance and leadership on this. The Ministry would return within a month to provide solutions on this. It also looked forward to the Committee’s continued guidance on this

Deputy Minister Jeffery said he was covered. He thought the purpose of this meeting was on the conditions of service. The listing was between the Regulator and the National Treasury. It was not covered in the Minister of Justice’s letter to the Minister of Finance. However, it did need to be addressed and he agreed with the processes being followed. The purpose of this meeting was the conditions of service, which the Deputy Minister of Finance would address within a month. The issue about the remuneration was also something the Regulator raised. The determination of the salaries was done before the Regulator started and was done in concurrence of the then Minister of Finance. This was done; the issue was that the Regulator wanted a higher level of remuneration. The National Treasury and Department of Finance would be engaged in that aspect. He did not see that as an urgent aspect because a determination was made. He looked forward to the Ministry’s response to resolving the issue of the benefits.

Discussion
The Chairperson said the Committee would be pleased if it received a presentation in its next meeting from both Ministries. At the end of the day, everything came back to resources (money). It did not want to have separate presentations by the Ministries, but for them to meet and give the Committee a consolidated presentation. He asked Dr Barbara Loots (Legal Advisor at Parliament of South Africa) and Ms Christine Silkstone (Committee Content Advisor) to look at what the Committee could do, whether Parliament made an error, and if so, determine whether it needed legislative amendments. He also asked them to look at the differences, because there was an accounting authority, accounting officer, and executive authority. This was to see whether the Committee really understood those three functions and how they found expression in the Act. He said that Dr Loots’ attendance was required in some of the meetings so there was a working programme that would be consolidated, this stated what Parliament and the relevant departments needed to do. It had to be one programme of action. The Committee would also have to meet with the chairperson of the Standing Committee on Finance to further explore these issues. It would be guided by the work done by Dr Loots in identifying the technical issues. He asked if that summary was acceptable to the meeting, and it was. He thanked the Deputy Ministers for attending the meeting.

Judge Motata Section 177 matter
Dr Barbara Loots (Legal Advisor at Parliament of South Africa) briefed the Committee on this matter:

Referral to the National Assembly
There was a question around Section 20(4) of the JSC Act and whether there was a JSC finding on record

SCA Full Judgment
Possible remittance ambiguity?
Sensible reading of the order in line with the judgment
SCA judgment replaces the JSC finding

Referral procedurally in order
The Committee can continue considering for report

Section 177 Considerations
Neither the National Assembly nor the JSC are subordinate in section 177 roles
JSC finding is a jurisdictional precondition to the National Assembly resolution
National Assembly should not reconsider merits as settled in the JSC stage
National Assembly called on to make a political decision

Proposed Committee Steps
Step 1: The committee must formally note the finding as a legal fact.
Step 2: The Committee may call for a procedural presentation from a JSC Official.
Step 3: The Committee must invite written representations on extenuating circumstances.
Step 4: The Committee must deliberate.
Step 5: The Committee must report on its political decision.
Step 6: The National Assembly must consider recommendations and vote.

Discussion
Mr Horn wanted to engage Dr Loots on the statement that the decisions to be made by Parliament were political. He had a slight difficulty with that specific statement. He agreed that the roles of Parliament and the JSC were different but equal. He could not foresee a situation where Parliament could not act in a constitutionally valid manner. In circumstances where the recommendation by the JSC, after the intervention of the Supreme Court of Appeal, was impeachment, for political reasons, Parliament could resolve that impeachment was not followed. He saw Parliament’s role in this specific circumstance as less of a political act and more so performing checks and balances. This was part of the constitutional architecture, and should never be tainted by political consideration. In essence, Parliament had to decide on the matter using the public power assigned to it by the Constitution. In that sense, the ordinary requirements around rationality would find application. For political reasons, there would be the conclusion that it was not politically sound or strategic. The political motivations of members would be against impeachment. This would be a breach of the constitutional obligations of Members of Parliament. He did not agree with Dr Loots that Parliament was to execute a political function or something that could be linked to policy considerations, which were always within the sphere of political consideration. In performing this important constitutional function, the Committee should consider inviting arguments in mitigation. When arguments in mitigation were considered, there was always the possibility that there could be arguments in aggravation. Who do we then look to provide those if it was Parliament’s duty to consider those specific factors before performing that constitutional function?

Mr X Nqola (ANC) noted that the guide said that procedurally, the Committee needed to note the report as a legal fact. It also presented two options that had the work to be undertaken by the Committee to request the return presentations from the affected judge and possibly the JSC. The report was noted as tabled before the Committee, the Committee further requested the return presentation from the affected judge. It could also request a written presentation from the JSC. The Committee would sit on a determined date and deliberate on the matter, having received those presentations. He proposed a way forward of that nature.

Adv Breytenbach said she was largely covered by Mr Nqola and Mr Horn. In terms of section 177, she emphasised that Parliament had a limited role in the impeachment of judges. It could not reopen an inquiry. The process was finalised by the JSC and subsequently by the judgments in the courts. This process had been through the courts. It was clear inter alia in the Judge Hlophe matter, that Parliament’s role was very limited. She took issue with the description of the  Committee’s work going forward in this matter as giving political guidance to the National Assembly and reaching a political conclusion. She thought it was exceptionally dangerous to mix the two and was probably just a poor choice of words.

Mr Dyantyi said he would brief in supporting Adv Breytenbach and the Committee’s limited role on this issue as directed by the law. He also supported Mr Nqola’s proposal. The issue that Dr Loots had to respond to was a difficult one. He asked Dr Loots to define a political role that the Committee had to play. The National Assembly played a political role. The other extreme was whether Dr Loots would state that the Committee’s role was just to rubber stamp what was there, which he would disagree with. There had to be an application of minds on these issues and whatever decision the National Assembly would make would be political. There was anticipation on that discussion that should not be preoccupying the Committee at this point. He would be very uncomfortable if Dr Loots defined how his mind was applied as an elected representative. The framework and guidance were sufficient for him.

Ms Maseko-Jele said she was largely covered. She spoke about the issue of returning to the Committee to make a presentation once a decision was made in the court. What would be the intention? What are we expecting to get from him?

Parliamentary Legal Services’ response
Dr Loots hoped she made note of everything and asked for the Chairperson’s guidance if she missed anything. Overall, she could answer all the questions in a single response. At no instance did she say the Committee should rubber stamp. She agreed with Mr Dyantyi, the Committee members needed to apply their minds, which went to the rationality that Mr Horn spoke about. The political decision statement was not hers, it came from a court decision. It was the High Court in Hlophe v JSC, that made the statement. The JSC was vested with the power to make a decision from the norms of judicial ethics, the National Assembly made a political decision. That came from the court case looking at how section 177 was interpreted. She was not in a position to say if this was a poor choice of words by the court, but it was the interpretation of section 177. Mr Dyantyi said Parliament was a multi-party body of representatives of the people. This was where the political decision came in. Parliament was not a Court of Law, so there could be situations where political representation, public interest perspectives, and other considerations could come into play. With that being said, rationality did not require the best legal decision, but a considered decision. If there were circumstances where the Committee found that even though there was gross misconduct, it could still vote in favour of no removal. This was a political decision. Other aspects were being considered because Parliament was not a Court of Law, it was not the JSC, it did not make merit findings, it made findings based on the interests of the constituents that were represented by political representatives. Rationality did not mean rubber-stamping, it did not mean Parliament had to blindly follow a certain decision. Rationality meant Parliament needed to have a considered decision. Nobody could predict what that considered decision could be, but it needed to be considered nonetheless, there needed to be debate and deliberations. As long as it could be demonstrated that members of the Committee and National Assembly applied their minds and voted in terms of their democratic principles. If Parliament was expected to follow blindly and rubber-stamp, this would call rationality into question. She hoped she assisted.

She mentioned Mr Horn’s question about why it was just the affected judge, this was because the State Legal Services looked at the person who was right and stood to be directly affected. These were the natural justice principles of when an individual was the one to suffer the consequences. As public representatives, this was where the politicians came in to represent the voice of the people. They would be seen as the voice of any aggravating circumstance if that came from a specific constituency. It was crucial for compliance to allow the affected person who stood to be removed, to place extenuating circumstances to the Committee.

The Chairperson said the other side of Mr Horn’s question was where the Committee would look for the aggravation.

Dr Loots apologised, perhaps she did not fully clarify herself. The politicians were the spokespeople. The matter had gone through a process. The focus here was not when the Committee allowed aggravating circumstances of the person who stood to be directly affected. There could be other aggravating circumstances, but these were issues that could be highlighted in political deliberations. Perhaps she did not understand the question fully.

Deliberation on proposed steps for Judge Hlophe and Judge Motata impeachments
Mr Horn said he was not covered. This was something the Committee needed to consider further. Unfortunately, he did not follow Dr Loots’ argument that the Committee was only to consider hostile factors working in mitigation. If factors in mitigation were part of the responsibility of the National Assembly, then for the Committee members to go through it rationally, there had to be a process where they could consider any factors that worked in aggravation. These factors could be sourced from the JSC tribunal findings, one would think that the tribunal would extensively invite and consider these factors when it proposed a sanction. If the Committee were to invite arguments in mitigation, because it was a matter of public interest, there should also be the possibility of asking the public what its views were on both factors working in mitigation and aggravation. The Committee members were the people’s representatives and would be performing their functions in that context.

The Chairperson said this was something that needed to be thought about. He suggested that Dr Loots go to the proposed Committee steps. This was the beginning of a process that the Committee had never had. It would be the first time since 1910 that a judge was impeached. He suggested the Committee adopt these steps as an approach to assist in arriving at a recommendation to the House. The Committee also needed to include timeframes in some of the steps. For instance, how much time do we give to the JSC official to come and make a presentation? Once the Committee received a presentation from the JSC official, it would have to request a written presentation on the extenuating circumstances. The Committee would also deal with the issue that Mr Horn raised. How much time do we give to the affected judge to do that? If the Committee were to agree with Mr Horn, it could not have an open-ended process for public comment, mitigation, and aggravation. It had to have a tight procedural framework, which would also give confidence to the nation on the timeframes when this matter would be before Parliament. If the Committee did not have those timeframes and procedures, there would be a situation where different members of the Committee were treated differently. Perhaps the Committee could deliberate on this. He suggested the adoption of the outlined steps and deal with the issue raised by Mr Horn.

He suggested that step two should be the way the Committee dealt with the Magistrate Commission. It could not just invite a written submission, but an official of the JSC to appear before the Committee and make a presentation. This would be quicker than the decade-long process that had been happening. One of the issues that was the constitutional responsibility of the House, was to ensure whether there was procedural compliance in every step of the process. The JSC official would be focusing on the procedural presentation. The Committee needed to be satisfied that the JSC followed all procedures before it presented to the House.

The Committee needed to have a discussion on step three about the extenuating circumstances and what Mr Horn raised about the Committee making a decision there. Once there was agreement on those procedures, these steps would cover any impeachment procedure for judges that came before the Committee even in its absence.

Ms Maseko-Jele supported this suggestion. She withdrew from the suggestion of making the JSC official give a presentation.

Mr Dyantyi thanked the Chairperson for his guidance, which helped in channeling the Committee towards a proper way forward. Based on what the Chairperson said, he moved for the adoption of the proposed Committee steps. Step one was a decision the Committee made today, it formally noted that it was a legal fact. He liked the emphasis on steps two and three because it was the gist of the work the Committee had to do. Based on this, he suggested asking for further planning out of this process in terms of the times and so on. Now that the steps and process had been adopted, can this now be put into the programme? The Committee’s programme had to account for this as it directly affected the programme. He liked step two because the Committee was doing this in terms of the magistrate. He suggested following that procedure, it was tested by the Committee and it worked. In step three, as part of the work that Dr Loots needed to do, he wanted the Committee to differentiate between extenuating and mitigating factors. They might not necessarily be the same issues, but the Committee needed assistance on this.

In step four, as the Committee deliberated, having listened to and gone through all those presentations, and the programme outline, it would do the kind of discussion that Mr Horn anticipated. This was where it avoided being partisan. In steps two and three, the Committee did oversight on every issue. He supported the adoption of the steps. Having adopted the steps, he suggested having an actual dated programme. He did not think the Committee had to do this. The Chairperson could do this with Dr Loots and her team. It might not even need a meeting, it could be sent to the Committee.

Mr Horn said there was one other aspect that had to be raised despite being an additional issue. The Chairperson referred to the fact that adopting a protocol was important because that would be the roadmap to how all impeachments would be dealt with. This was a very important aspect. Parliament was tasked with dealing with another impeachment prior to this one, which was not yet processed. This was the impeachment of Judge Hlophe. If he was to assist Judge Motata in arguing around this, he would strongly raise the issue of judges not being treated equally. Parliament could not continue stalling the Hlophe matter while it continued to finalise the Motata matter. There was a presentation in the Programming Committee last week, which indicated that processing the Hlophe matter would be a long process. The roadmap as agreed upon would indicate differently. For the Committee to expose or not to expose itself and Parliament at large to an argument that they were not giving effect to the equality principle. He strongly urged the programming of the Hlophe matter.

The Chairperson said he thought the Committee would agree on these processes irrespective of the names. This was the process of impeaching any judge. Once this was agreed upon, then it could go to the Programming Committee to determine when each impeachment would be processed. In the case of Economic Freedom Fighters (EFF) v the Speaker, there was the issue that roles were immediately developed with people in mind. Those roles were not fair. He suggested focusing on having the framework. Once the framework was agreed upon, the Committee could then outline the processes.

Mr Dyantyi fully supported this. The issues raised by Mr Horn would be considered even as this was being done. The Committee had to be clinical in how this was done so there was no loophole of it being accused of irrationality and unfairness. In the end, the Committee would likely take all those matters. However, it needed to be on the safe side of the process and procedures in how this was done. He fully supported the Chairperson’s directive.

The Chairperson thanked him. The Committee would go to that discussion immediately after it adopted these guidelines. He asked if the Committee agreed with Mr Dyantyi on the timeframes being included in steps two and three along with the issue of aggravation and mitigation. When the Committee deliberated, it would have received a presentation from the JSC and gone through the documents. The Chairperson said he was kicked out of the meeting by Mr Horn.

Mr Horn jokingly said this should be a warning to anyone who slightly disagreed with him.

The Chairperson said he would ask Adv Breytenbach to protect him against Mr Horn. With that summary, is there anyone who disagrees with this?

Mr Dyantyi said the Committee supported the summary.

The Chairperson thanked him and said he would work with Dr Loots on the timeframes and inform the members. The second issue on this item was that the Committee had two referrals. Judge Hlophe was referred a while back and the process was paused because of the Programming Committee’s decision. The Programming Committee said the Committee could proceed with that one. The other referral was the Judge Motata matter. Based on the newly adopted guidelines, he proposed formally writing to the JSC to invite it to brief the Committee on the two judges. There were referrals for both judges. Step one for Judge Motata was done, which was to formally note the findings as a legal fact. The same needed to be done for Judge Hlophe. The Committee would then request the JSC for a brief on both judges. This programme would dictate when the Committee could expect a briefing on both matters. These two requests would be processed this term. The Committee would do the first and second steps concurrently. Both steps would lead to the following steps that needed to be taken. Is there a problem with that approach?

Adv Breytenbach said there was not a problem.

Mr Dyantyi concurred.

The Chairperson asked if Mr Horn was covered.

Mr Horn said the one removal had a positive effect.

The Chairperson said the Committee was done with the impeachment processes. It would meet with Dr Loots to finalise the relevant issues so the programme could be worked out. He had an update that would have a serious effect on the programme, the Committee needed to talk about it. He thanked Dr Loots for the presentation and the research unit for the document. It made things much easier to understand. He asked them to do the same for the Judge Hlophe matter. He moved to the third item on the agenda which was the SAHRC. He said there was an important step that the Committee skipped, it had not advertised the candidates and their curriculum vitae (CVs) for public comment, which was very important before shortlisting. Perhaps a discussion could be had and the Committee could receive a presentation on the criteria used to shortlist. He asked if this was fine.

Mr Dyantyi said this was fine. The issue of public comments was a procedural matter and was very important.

The Chairperson asked for any contrary views, of which there were none.

SAHRC Commissioner appointments
Ms Silkstone provided a briefing on the SAHRC appointments. There were six positions that needed to be filled, four of which were in a full-time capacity and two in a part-time capacity. Although the referral to the Committee did not mention a specific date by which it had to report to the House, the current terms of the following Commissioners would end on 01 January 2024: Adv Majola (current Chairperson of the Commission); Adv Makwetla; Adv Gaum; Mr Nissen (part-time) and; Adv Sibanyoni. Adv Malatji, who was serving his second seven-year term as a Commissioner had resigned, leaving another vacancy. The Committee received 104 applications, with one withdrawal.

The SAHRC Act provided that any person whose term as a Commissioner had expired, could be appointed for an additional term. On the recommendation of the National Assembly, the Commissioners could hold office for a fixed term determined by the National Assembly at the time of appointment, but not exceeding seven years. On the recommendation of the National Assembly, the President had to appoint a Chairperson and Deputy Chairperson of the Commission respectively. The criteria for such appointments were set out in section 193 of the Constitution and the SAHRC Act.

There were constitutional requirements in the selection criteria. Section 193(1) of the Constitution provided that Commissioners had to be South African citizens, fit and proper to hold that particular office and comply with any other requirements prescribed by national legislation such as the SAHRC Act. Section 193(2) of the Constitution provided that a Commission established by Chapter 9 had to reflect broadly the race and gender composition of South Africa

The Legislative requirements in the selection criteria included Section 5(1) of the SAHRC Act. This dictated that a Commissioner had to be a South African citizen, fit and proper to hold office, have a record of commitment to the promotion of respect for human rights and a culture of human rights, and be a person with applicable knowledge or experience about matters connected with the objects of the Commission. Section 4(1) of the Act also highlighted that the Commissioners had to serve impartially and independently and exercise their authority and functions in good faith, without fear or favour, bias, or prejudice. 

Discussion
The Chairperson thanked Ms Silkstone. He asked for any questions and comments from the Committee. He asked if the Committee was clear with the criteria as read.

Adv Breytenbach said the Committee was clear.

The Chairperson asked for any objections to the adoption of these criteria, of which there were none. He asked the Committee Secretary when the Committee should expect the process of advertising to start.

The Committee Secretary said it should be ready by this Friday. He said the Committee was dealing with 102 CVs out of the 104 CVs received. One of the candidates withdrew, and another candidate was a South African citizen from Lesotho. He said a week or two should be fine.

The Chairperson said he should be definite with his proposal.

The Committee Secretary said when it previously had a large number of CVs, there was a request for two weeks, to be safe, he proposed for two weeks.

The Chairperson said there was a proposal for two weeks starting from Friday. He asked for any objections.

Adv Breytenbach said this was alright.

Mr Dyantyi supported this.

The Chairperson said this was now taken care of. He thought the next item was now relevant. He received communication from the Committee Secretary that the House chair declined the request for the study tour because of financial constraints and felt there were a lot of Bills that needed to be passed.

Mr Horn said the financial considerations were understandable and the Committee had to be sensitive to this. However, the request was within the context that other committees had multiple study tours already, and this was the Committee’s first request. He agreed with Adv Breytenbach in the Committee accepting the decision. The one problematic aspect was if the workload of committees was a relevant factor in deciding who qualified for study tours, it would ironically mean that committees like this one with heavy workloads would always be in a situation where they could not benefit from the exposure. Ironically, those with lesser workloads benefited from that exposure. This seemed nonsensical. He was in agreement that it would not be prudent for the Committee to pursue the matter further at this stage.

Mr Dyantyi said Mr Horn covered him. He agreed with Adv Breytenbach. If the rejection was based on the unavailability of funding, the Committee did not want to go on an unfunded trip. It never wanted to do this in the first place. If that was the issue, then it should be confined to that. This Committee had never travelled. The members were in the same Parliament and National Assembly, they were in different committees. Other members travelled fortnightly and every week. The Committee should accept the decision, but there should not be new criteria created for it. Those criteria would have been wrong because the programme was planned with the study tour in mind. The programme was planned and approved by the very same chairperson of chairpersons. That reason did not hold water and should not be placed on the Committee. The issue needed to be addressed, not only for the members but the nature of the Committee, which was seized with issues of legislation. The Committee met three days a week, which meant it was regarded as a domestically focussed Committee by default in terms of such criterion. These criteria could not be accepted. A better explanation was required. If the issue was finance, then it would be left there. For now, the Committee accepted the Chairperson’s report. If there was any other issue, the Committee should not close off that important assignment. Yesterday it had issues about a whistleblower. The Committee wanted to go to other countries and be exposed to such issues.

The Chairperson thanked him. Given the fact that the Committee would not be travelling, it should use the constancy break to do some of the work, even for a few hours. For instance, dealing with the public hearings and some of the issues just to offload some pressure on the programme, which would start with the Budget Reviews and Recommendations Reports (BRRRs). The Committee made undertakings with the Law Society and would be dealing with the issue raised about the master’s office. During this time, Mr Dyantyi would be with the Magistrates Commission. On 02 October 2023 he and Adv Breytenbach would meet with the JSC. He suggested the remaining members took some of the less contentious issues and processed them. The Committee had the largest amount of entities and its BRRR processes were meant for committees that had one or two entities. Yet it was treated like the other committees that had a few entities. That process became a pressure cooker on its own. The Committee was required to finish four bills before December and allow the National Council of Provinces (NCOP) to process those bills. It still had the SAHRC interviews depending on the shortlisting amount agreed upon. It would take more than two days to interview 18 or 20 people. Another issue it needed to manage was making people stay in the waiting room for a long period of time. This had an impact on their performance. When people were there, there was anxiety and other factors that needed to be considered. The programme should factor in all those issues. The Committee adopted the issues of both judges. It was a programme that was going to be very tight. He suggested using some of the days during the break to deal with less contentious issues, to free up the programme, and deal with the other issues when members returned.

Adv Breytenbach said this was fine.

Ms Silkstone said many of the annual reports would only be received towards the end of September. The first week of October consisted mainly of BRRR preparation. She asked if the background work of the researchers and support staff could be taken into account when the programme was developed.

The Chairperson said this was a valid point. He asked to discuss this outside the meeting. It was a valid point because the researchers and support staff had the same number of hours in a day as the Committee members. The Committee did not have enough research and secretarial support. The Chairperson, research, and secretarial units needed to meet to consider all these things and develop the programme so everybody could cope and still deliver a good product. He asked if that was fine.

Mr Horn said it was fine.

The Chairperson said the Committee dealt with the issue of the programme. He moved on to the minutes. A Committee staff member was no longer in the meeting to flight the minutes. The Chairperson suggested deferring the minutes to the next available date.

Mr Horn said up-to-date, minutes were a requirement for travel. Since the Committee was not travelling, they did not have to do minutes ever. This was said in a joking manner.

The Chairperson said perhaps there should be a different request to attend the rugby because there was always a budget for those who attended rugby. He received a letter and a call during the meeting from the Minister of Transport. He received a briefing that a letter to the President about issuing a proclamation on the SIU was incorrect, this letter was not signed. The Department said it had done this for the President in support of the SIU. The President had to issue a proclamation. It was important for the Committee to invite the return of the Ministry of Justice and the SIU to explain what could have resulted in the miscommunication. He asked if this was in order. A fourth-term programme would be communicated along with the criteria with the timeframes as agreed upon in the meeting. The Committee would then look at the next available date to meet.

Meeting adjourned.