Ethics Issues : Engagement with Northern Cape Legislature
Ethics and Members' Interest
07 September 2007
Meeting Summary
A summary of this committee meeting is not yet available.
Meeting report
JOINT
COMMITTEE ON ETHICS AND MEMBER INTERESTS
7 September 2007
ETHICS ISSUES : ENGAGEMENT WITH NORTHERN CAPE LEGISLATURE
Chairperson: Mr L Landers (ANC)
Documents handed out:
No documents handed out
Audio recording
of meeting
SUMMARY
Members of the Northern Cape legislature
(NCPL) attended the meeting. A discussion was held around a number of
ethical issues, including the disclosure of interests, reports to the house,
investigation of complaints and certain procedural matters. Much emphasis was
placed on the disclosure of interests and it was noted that the disclosure
requirements were more stringent for members of the Executive than members of
parliament. The composition of the committee in the Northern Cape Provincial
Legislature, which included MECs, was noted with interest, and the explanation given that MECs
were members of parliament even if they ceased to hold office as MEC. Members
of the Committee noted the need for transparent and accountable procedures,
including that all reports must be in writing, and the desirability of
informing members of any findings of transgression, prior to publication of the
findings. Members expressed their disquiet that not all members had submitted
their disclosure forms on time, and that the matter of publication would have
to stand over. The issue of donations was discussed.
MINUTES
Northern Cape Provincial Legislature discussions
Members of the Northern Cape legislature (NCPL) attended the meeting and
introduced themselves as Mr Kagisho
Molusi, MEC, Public Works, Roads and Transport (ANC),
Ms Themsi Madikane, MEC,
Safety and Liaison (ANC), Mr Carel
Boshoff, Member, Northern Cape Province Legislature
(NCPL), Mr J Swartz, Legal Advisor, NCPL, Ms S Fouche, Registrar
NCPL and Ms Johanna Beukes, Ethics Committee Member,
NCPL.
Mr Molusi informed the
Committee that the members were looking forward to a very informative and
lively discussion. Topics of particular interest included reporting to the
house, investigating thefts and the handling of procedural issues.
The Chairperson noted that officially the register of interests should be given
to the media this day to fulfil the requirement of
publication, but that
due to insufficient members to form a quorum the Committee could
not formally adopt the register on this day, but would have to re-schedule
another meeting next Friday to adopt the register. The register could be found
on the parliament website, where it was published for logistical reasons, to
cater for the possibility of alterations.
The Chairperson found it disturbing was that by last night some members had not
yet submitted their disclosure forms. He wanted to emphasise
that such failure to submit the forms amounted to a breach of conduct by the
member.
Discussion
Mr T Ralane (ANC)
asked the Northern Cape Province if it was a good arrangement to have executive
members (MECs) as part of the ethics committee. He had to admit that
he found the composition rather remarkable, considering their ethics committee
did not have members who were part of the Cabinet.
Imam G Solomon (ANC) agreed with this assessment and aired his reservations
about such an arrangement.
The Chairperson agreed that they should engage with this matter, but his
immediate response to the question was that this was the way they had chosen to
compose their ethics committee. He then asked for the Registrar’s comment.
Mr Kagiso Molusi (MEC, NCPL) replied that even though the NCPL had
the executives in the committee, Members should bear in mind that even if he
were to step down from holding office as MEC, he would still be an MP and
therefore part of the legislative arm of the government.
Ms Themsi Madikane (MEC,
NCPL) added that the Chairperson of the Northern Cape ethics committee had
ruled that members of the executives were ultimately MPs.
Mr Carel Boshoff (Member, NCPL) said an argument for the separation
of powers could be made, but he did not think having executive members as part
of the committee violated this - in fact it aided in co-ordination.
The Chairperson apologised for the small contingent
of members of this Committee. He noted that the Committee was asking to
re-convene on Friday. He said again that about twenty members had failed to
make disclosure. It was unacceptable that a Minister should submit the forms a
day after the deadline.
The Chairperson continued to say that the National Code of Ethics was an ANC
initiative, drafted with the help of Professor Asmal,
who had chaired the first committee on ethics. He added that the Executive
Members' Ethics Act was promulgated in 1999. This was an additional code of
ethics for the executive, with requirements for disclosure. It had a greater
implication of trust. Members of parliament were only required to disclose
their assets and interests,
whereas the executive must not only disclose their assets but
also their liabilities.
Ms F Mohammed (ANC) clarified the issue of trust and said that Members had to
appoint someone to look after their interests, because a Member of Cabinet
should not engage in any forms of business. This was to avoid any conflict of
interest or a situation that could give rise to perceptions of bias.
Ms S Fouche, (Registrar, NCPL)asked
for further elaboration on the complaints mechanism.
The Chairperson replied that the complaints must be sent in a written
form. When Ms Mohammed received the complaint she would deal with it according
to the code of ethics. A complaint against an executive went to the Public
protector. This did not mean that the ethics committee could not deal with
executive issues; quite to the contrary since previously it had dealt with the
two Deputy Presidents. They also had developed an informal way of dealing with
the complaints.
Ms Mohammed added that this was a serious issue and parliament had to look into
the complaints, so they had to do research. The Committee wrote to people who
put information in the pubic domain, followed up on where they got their
information, and would also do further investigations. In a case where it
discovered that there had not been disclosure, the committee would order the
members to disclose. This was all geared to openness and so that the public
should not get the wrong picture.
Ms Mohammed went on to say that if she received a complaint she would inform
the respective member against whom the complaint was directed, asking them to
respond without them having seen the complaint. In such a situation either the
member would refuse to respond - which reflected badly on the member - or the
member would respond. If Ms Mohammed was not satisfied with the response she
would request to be furnished with further information. If she remained
unsatisfied she would then request a formal hearing and the member had the
obligation to appear before the ethics committee, with a representative, to
explain the issue.
The Chairperson clarified that the representative the member was entitled to
would not be a legal representative as such, but would be a member of
parliament. That person, of course, might be a lawyer by training and there was
no bar to this.
He went on to say that the declarations for the Members of Parliament and the
Cabinet happened at the same time, but stressed again that the declaration for
the executive was more onerous. Moreover, in the declaration there must be an
indication that there was no conflict of interest. If it should be that there
was a conflict which made the work impossible, then the position must be given
up. At the moment, Members felt the code was very narrow and they hoped that
the committee would look at this.
The Chairperson remarked that, on the issue of disclosure, matters had recently
reached the point where he had had to tell ANC members that this was now their
last chance to disclose, at which point they had reluctantly done so, while
lodging complaints to him about the need to do so.
Mr Boshoff asked why a
Member was not entitled to see the complaint.
The Chairperson replied that the Code of Ethics operated on a code of good
faith, and it
was believed that if Members took the oath, then operated on good faith. It was
not necessary to see the complaint as this would imply that one was hiding
something.
Ms Mohammed added that the other reason was to protect the complainant, who in
most cases happened to be members of the opposition parties.
Mr Molusi asked how the Committee
dealt with members of an opposing party who might have given information to the
media that might be trite, or without the full facts.
Ms Mohammed replied that they dealt with this increasingly because members of
parliament were under some mistaken belief that their information was a secret,
when it was in fact readily available. Two years ago they had to deal with a
case where a complaint implied that a Minister had not disclosed one of his
companies, but a quick search showed that he had disclosed, but the company was
trading under a different name. Experience has taught her that if a complaint
was in fact justified, the person complained of would try to obstruct the
inquiry, but if
it was unjustified the Members were vehement in trying to clear up the matter.
The Chairperson said that in addition the Committee informed the public of any
finding of the investigation. If an adverse finding occurred they informed the
affected member first and told him / her whether a fine was likely to be
levied. The committee was quite large, having around
27 members but there was only one incident where a member had informed the
public what she thought the committee had decided in a particular hearing,
before they were ready to make a press release. That member was summarily
dismissed and it had never happened again. His best advice was that members
should go to the Registrar for any advice, or if they were not sure as to what
they should disclose, as it could happen that they could find themselves in a
difficult situation.
Ms Mohammed added that the advice she gave was also in writing. In some
instances she had to help the members formulate the questions, because there
had been instances where the questions and the answers had been vague, and this
does not help the MP at all.
The Chairperson then talked about reporting to the house. He said that they
proposed a new system that a hearing be heard by five members, since the full
Committee was very large. This had been tried and had worked well. A report on
the hearing was drafted, including the verdict, which could range from
suspension to a fine. This was presented to parliament, which would then
formally impose and carry out the verdict.
Imam Solomon added that procedure was very important. He stressed that this
must be in writing..
The Chairperson agreed with Imam Solomon and added that having the procedure in
writing was crucial, as procedural issues would need to be proven if the
decision was challenged in court. In a previous matter the decision of the committee
had been challenged by a senior member of the ANC, but she lost the case
because the Committee had followed procedure to the letter.
Ms S Rajbally (MF) added that it was imperative that
they be competent because they had to answer to the public and the public was
entitled to the information.
Ms Mohammed also added that she did not deal with the public. All questions
received by her would be referred to the Chairperson, who then engaged with the
public, and answered any questions they asked. Outward perceptions were very
crucial to maintain.
Ms Fouche asked how they dealt with external funds,
in relation to what Ms Mohammed said in the maintenance of a good public
perception.
Ms Mohammed replied that they did not encourage committees to get external
funding. In other jurisdictions such as the United States of America, a cabinet
member was only allowed a gift of $20. In South Africa there was greater
leniency as a member could receive a donation up to R1 million. but the member had to disclose the amount. Some matters,
such as a committee getting external funding, were just bad habits, especially
when the external donor then came before the committee for oversight There was one incident where an external donor actually
funded the committee's trip to inspect its work place. In such situations it
would be hard for the public to imagine that the committee would then be
impartial. The British parliament had
refused a gift of a clock to be put on the front of the parliament. South
Africa was one of the very few parliaments that accepted gifts from outside.
Most governments, including those that were poorer than South Africa, believed
in the motto that anything that had to be funded for the government had to come
from the government through the proper channels.
The Chairperson added that the Northern Province committee should be wary of
such situations. The committee had once met with the Department of
Communications, and the meeting also included Telkom,
Vodacom, MTN and other business stakeholders. The meeting
took the form of a glossed-over presentation, followed by a presentation of
pens to the Committee Members. The Committee had advised them never to do so
again. He advised the registrar to establish a good working relationship with
the Companies and Intellectual Property Registration Office (CIPRO) as the
comparison between parliamentary disclosure forms and the companies
registers would make verification easier.
Ms Mohammed also added that the Registrar had to assist members, as far as
possible, to comply because they obviously thought that their information was
safe. However, once their ID numbers were published, the information was
readily available from CIPRO or the Stock Exchange.
The Chairperson remarked that he hoped that this was the beginning of
engagements with other provinces.
The meeting was adjourned.
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