Ethics Issues : Engagement with Northern Cape Legislature

Ethics and Members' Interest

06 September 2007
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Meeting report

IN THE HIGH COURT OF SOUTH AFRICA

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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