Scorpions Closure public hearings: Day 4; Legal Opinion on recusal of MPs

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Justice and Correctional Services

18 August 2008
Chairperson: Mr Y Carrim (ANC) and Ms M Sotyu (ANC)
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Meeting Summary

A special multiparty sub-committee is to be appointed to investigate whether Members of Parliament who have come under the scrutiny of the Scorpions should be allowed to vote on the Unit's future. This was despite Parliament's legal advisor arguing that while a conflict of interest could possibly arise, there were enough checks and balances to prevent such MPs from unduly influencing proceedings when the Bills were debated. The legal opinion maintained that an order of recusal would be unlawful and would have an adverse effect on the parties, which the relevant member(s) represent, as well as the electorate they were representing. Members discussed the approach to take and the categories of members that were affected.

Before making his submission to the Committee, Mr Accurajo enquired whether he would have indemnity for anything that he might say. The Committee debated whether the indemnity, granted to members in terms of the Constitution and relevant legislation, extended to members of the public. After some confusion, it was decided that Mr Accurajo would present his submission to a closed meeting of the Committee.

Ms Nombeko Constance Lephuting and Mr Themba Ncayo strongly objected to the manner in which the Scorpions operated. They accused the unit of investigating those only that had been in the liberation movement whilst not pursuing those that committed atrocities under apartheid. They also criticised the Scorpions for ignoring the crimes that affected ordinary people.

The South African Communist Party reaffirmed its support for the disbanding of the Scorpions, and its incorporation into the South African Police Services as a legitimate and necessary political and legal decision to strengthen the capacity of government to fight crime. The organisation favoured the strengthening of the South African Police Services as the only viable agency to combat crime and ensure that South Africa became a haven for all who lived in it.  The SACP advised that greater attention needed to be given on how best to capacitate the Independent Complaints Directorate in order to ensure that it effectively executed its oversight function. The Committee discussed the electoral support for the ANC, the Browse Mole Report and the recommendation of the Khampepe Commission.

Meeting report

Opening Remarks by the Co-Chairperson
Mr Carrim recalled that in the previous meeting, certain Members had contended that it constituted a conflict of interest for a Member of Parliament, who was once investigated or is being investigated by the Directorate of Special Operations (DSO / Scorpions) to participate in the consideration of the two Bills before the committee. In that regard, the Committee had requested the Parliamentary Legal Office to advise on whether the affected member(s) should be recused from the committee proceedings and the effect thereof when voting on the Bills.

Legal Opinion on the Recusal of Members of Parliament
Mr Nthuthuzelo Vanara, Legal Advisor: Parliamentary Legal Services, explained that in respect of Parliament, the recusal obligation was designed to ensure that Members of Parliament, who may improperly be influenced or biased on a matter being considered before a committee, did not participate in parliamentary business. Nothing was more likely to impair confidence in committee proceedings, on the part of the public, than actual bias or the appearance of bias by elected representatives. Not every personal interest would amount to a conflict of interest, thereby justifying calls for recusal. Therefore each case would have to be determined on its own merits. In an attempt to address the current legal question, regard must be had to court judgments dealing with conflict of interest.

After analysing several cases, Mr Vanara declared
that it would not constitute a conflict of interest for the investigated members to participate in the consideration of the two Bills. He argued that it was sufficient for the investigated Member(s) to inform the committee of the pending investigation because there were sufficient checks and balances built into the process (of processing a Bill) to prevent any bias. Thus far, no member who was previously investigated or is being investigated by the DSO had declared an interest to the committee, and therefore any allegation of reasonable apprehension of bias must be proved. In light of this fact, he concluded that there was no legal basis, at this stage, for Parliament to order the recusal of the investigated member(s) from participating in both the House and committee proceedings. Such an order of recusal would be unlawful and would also have an adverse effect on the parties as well as the electorate which the relevant member(s) represented. Lastly, he cautioned that such an order could be successfully challenged in court by the affected member(s) of Parliament.   

Discussion
Mr S Swart (ACDP) praised the legal advisor for producing an opinion in such a short period of time. He alerted the Committee to the Glenister case, which advanced a different opinion to that of the legal advisor. For that reason, he appealed to the Committee to be cautious in the manner in which it approached the matter because it would in all likelihood end up in a court of law where either view would be contested. Personally, he maintained that all members who were investigated or were currently under investigation (by the DSO) should recuse themselves or at the very least disclose their involvement in terms of the Joint Rules of Parliament. He concluded by stating that the ACDP differed with the opinion and believed that there was a conflict of interest.

In addition, Mr Swart noted that the legal opinion was premised on the fact that the Parliamentary Legal Office
had not been furnished with the specific facts and circumstances of the member(s) being investigated by the DSO. In the absence of such facts they were not able to provide a full opinion.

Mr J Van der Merwe (IFP) applauded the good work done by the parliamentary legal advisor. However, he also noted that the legal opinion was a general one and that it did not take into account the specific facts involved.

Mr Vanara agreed with the observation that his opinion did not deal with a specific member or the circumstances that affected a particular member. Instead, it addressed a general question whether a member of parliament who was or is currently being investigated had a personal interest that amounted to a conflict of interest, justifying claims for recusal. When one considered the totality of the opinion, it recognised that there might be instances where this could amount to a conflict of interest. However, in order to reach such a conclusion, it was essential to have the specific facts. 

Dr F van Heerden (FF+, Free State) believed that the opinion was contradictory, and cited the paragraphs dealing with bias with the final recommendation to illustrate this point. In addition, he accused the legal advisor of being too optimistic with his assertion that any recusal
order could be successfully challenged in court by the affected member(s) of Parliament.

Adv L Joubert (DA) indicated that 50% of all legal opinions were incorrect and that he had the Appeal Court records to prove this statistic.

Mr Van der Merwe replied that this meant that 50% of legal opinions were correct, and that this opinion could fall into that category.

Adv Joubert urged the affected members to recuse themselves out of respect for Parliament.

Mr K Khumalo (ANC) concurred with the legal opinion. He warned that there was a possibility that all the members of the Committee had been investigated and should therefore be recused from the process. Lastly, he advised that the process would only move forward if there was a list with the names of all the members investigated by the DSO.

Mr S Shiceka (ANC, Gauteng) conceded that the legal advisor did not have full details to make an informed opinion. Nevertheless, he was of the opinion that the advice could act as a basis for engagement. In addition, he reasoned that the approach taken by the ACDP- that any Member who was investigated or currently being investigated must be recused- was incorrect because there were people who were investigated and were not found guilty. Also, an application of this principle would mean that the Bills would never be passed because more than half of the Members of the National Assembly were purported to have been investigated. In light of this, he advanced that a better approach would be to say that all Members who were convicted and those who were currently under investigation ought to be recused. He suggested that such a proposal should be referred to senior counsel for consideration. Finally, he added that senior counsel should be provided with the facts and circumstances of all the affected members.

Moreover, Mr Shiceka indicated that the ruling party had adopted a cautious approach when dealing with this matter. Affected members of the ANC had voluntarily recused themselves in order to ensure that the process continued in a manner that was devoid of any negative public perception.  Mr Shiceka underlined that the Committee would be setting a precedent and that the ultimate decision would have significant consequences for years to come. It was therefore essential that a correct decision be taken.

Adv Joubert supported the view that the Committee request an opinion from a senior counsel.

Equally, Ms D Kohler-Barnard (DA) agreed with the recommendation. She argued that the very thought that people who were convicted or were under investigation by the Scorpions, would to be allowed to vote on the dissolution of the unit was beyond comprehension.

Mr Swart expressed full support for the proposal made by Mr Shiceka. He noted that this was the first time in all the deliberations that the Committee had reached a degree of consensus, and hoped that it could be built on.

Mr B Magwanishe (ANC) stated that the senior counsel’s opinion should be restricted to the effect of the vote in the House because no affected member had participated in the committee proceedings.

Mr Carrim emphasised that the Committee should be clear about the terms of references that it issued to the senior counsel and the implications thereof.

Mr Van der Merwe provided a breakdown of the different categories of members that were affected. Firstly, he recalled that approximately six members were found guilty and subsequently left Parliament. Added to this, twelve members entered into plea bargains with the Prosecuting Authority and they were duly sentenced. A remaining group of twelve members were currently being investigated by parliament but no longer by the Scorpions. This illustrated that only 24 members were affected.

Mr Vanara informed Members that the while the senior council opinion carried some weight, it was nevertheless just an opinion and not a judgment. He agreed with earlier statements that in the interest of not opening the process to successful legal challenges, the issue must be approached with caution. At this stage, in the absence of any legal basis, he advised that this matter be handled politically. To this end, he suggested that the Office of the Speaker be tasked with speaking with the relevant political parties to ask the affected members to recuse themselves.

Given the small number of affected members, Mr Carrim wondered whether it was necessary to go the route of getting senior counsel. However, should this be the chosen option, he proposed that a multiparty subcommittee be established to set up the terms of reference and issue a request to the committee section to get an appropriate senior counsel.

Mr Swart appreciated that in the final analysis, the Committee might be only dealing with a few members. However, he argued that in view of the complexity of the matter, the fact that it was unprecedented and that parliament might be challenged legally; it would be wise to take the senior counsel option.

Ms Sotyu agreed that this matter needed to be managed politically.

Mr J Malahlela (ANC) suggested that the subcommittee only assemble after all political parties had consulted with their respective chief whips regarding the names of the affected members.

Mr Carrim approved of this suggestion, and stated that the subcommittee would meet in the next 48 hours to determine whether to go the senior counsel route.

Submission by Mr Accurajo (no document provided)
To start with, Mr C Accurajo indicated that his wife was one of the four travel agents that were accused in the “Travelgate scam”. Before proceeding further, he enquired whether he would be granted immunity (from legal charges) for any of the views that he would express in his submission.

Discussion
Mr Carrim sought advice from the legal advisor as to whether the privilege that extended to Members of Parliament also applied to members of the public regarding the utterances that they made at a public hearing.

Mr Vanara replied in the affirmative.

Ms C Johnson (ANC) disputed this viewpoint, and argued that the privilege only extended to Members of Parliament.

Mr Swart noted that there was a pending criminal action against the presenter’s wife, and therefore cautioned him that anything he said could be used as evidence in the case against her. In addition, he agreed with the previous speaker’s interpretation regarding the application of privilege.

Mr J Jeffery (ANC) advised that the Powers
, Privileges and Immunities of Parliament and Provincial Legislatures Act (hereafter referred to as the Immunities Act) be examined to provide guidance on this matter.

Kgoshi Mokoena clarified that in terms of the Immunities Act, any person who was invited to participate in a parliamentary committee was protected by the privilege.

Mr Shiceka recalled that the Chairperson of the Sports Portfolio Committee, Mr Butana Khompela, was involved in a confrontation with the president of the South African Sports Confederation and Olympic Committee, regarding the latter’s intent to discipline the president of Athletics South Africa,
Mr Leonard Chuene, over comments that he had made in a parliamentary committee meeting.

Mr Carrim found it worrying that after 14 years, there was no clarity on such a simple issue. In the absence of any clear answers, he suggested that Mr Accurajo continue with his submission but confine his comments to the less controversial aspects of his submission. He added that the Committee would possibly entertain the more controversial parts of the submission in a closed meeting.

Mr Accurajo accepted this ruling and requested the legal advisor to notify him if he was treading on any contentious issues in his submission.

Submission continued
Mr Accujaro indicated that the Travelgate scandal had damaged the image of Parliament, and tarnished the public’s perception of politicians.

Mr Vanara interjected to clarify that in terms of the Constitution, Mr Accurajo would not be offered any indemnity. Simultaneously, he counselled that Mr Accurajo would not be able to rely on the indemnity provided for in the aforementioned Act, because it only catered for members of the public who were summoned by a committee to give evidence under oath.

Mr Malahlela proposed that the submission be deferred to a closed meeting of the committee.

The Committee supported this recommendation.

Mr Carrim informed Mr Accurajo that this closed meeting would take place in the first week in September.

Submission by Nombeko Constance Lephuting
Ms Nombeko Constance Lephuting stated that her community faced high levels of crime on a daily basis. These included unacceptably large levels of gangsterism, alcohol and drug abuse, domestic violence and rape. Despite the community and government’s efforts over the past 14 years, there was no apparent sign that crime was being brought under control. The police appeared incapable of coping with the situation and drastic intervention was needed.

In light of all of this, Ms Lephuting criticised the Scorpions for spending too much time on high profile media cases and too little time on dealing with the unbearable levels of crime experienced by ordinary people on the ground. Also, she claimed that the paucity of work done by the Scorpions was another justification for its disbandment.
 
Discussion
Mr M Moatshe (ANC) enquired whether the disbanding of the Scorpions would help to reduce the high levels of crime in Gugulethu.

Ms Lephuting replied that if the Scorpions were relocated into SAPS, it would help to deal with crime that affected the community more directly.

Rev K Meshoe (ACDP) dismissed Ms Lephuting’s reasoning that the Scorpions should be disbanded because it hardly had any work to do. He countered that if a person or a structure did not have sufficient work, it must be given more work to do.

Ms Lephuting maintained that the DSO was not involved in her community because its investigations were only focused on high profile politicians.

Submission by Themba Ncayo
Mr Themba Ncayo, Community Development Worker, strongly objected to the manner in which the Scorpions operated. He accused the unit of only investigating those that had been in the liberation movement whilst not pursuing those that committed atrocities under apartheid.

No questions were put to the presenter.

South African Communist Party (SACP) submission
Mr Malesela Maleka, Spokeperson, SACP, welcomed the opportunity to make a submission on the two Bills that were being considered by the Committee. The SACP reaffirmed its support for the disbanding of the DSO, and its incorporation into the South African Police Services (SAPS) as a legitimate and necessary political and legal decision to strengthen the capacity of government to fight crime. The SACP was committed to the fight against crime and would continue to cooperate and support government in that regard. The SACP did not accept the notion that the disbanding of the Scorpions would weaken the fight against crime. From the onset, the DSO was set up in such a manner that it received the best capacity, and resources. In contrast, SAPS continued to be under-resourced and understaffed, and therefore its capacity to fight crime was weakened.

The SACP strongly opposed the continuation of a two-tier system of policing. The Scorpions failed to deal with crime that affected ordinary people. One such example is the displacement and illegal eviction of millions of people from farms. This demonstrated a skewed and class bias approach to crime prevention.  The Khampepe Commission highlighted the illegal gathering of both crime and political intelligence by the DSO as an area of concern, which had the potential to undermine national security.

The SACP favoured the strengthening of SAPS as the only viable agency to combat crime and ensure that South Africa became a haven for all who lived in it.  Lastly, the SACP advised that greater attention needed to be given on how best to capacitate the Independent Complaints Directorate (ICD) so that it could effectively execute its oversight function.
 
Discussion
Mr J Le Roux (DA, Eastern Cape) objected to the assertion that millions of farm workers were evicted from farms each year. He described such a statement as “utter nonsense”, and declared that there were not even millions of farm workers in the country.

Mr Malesela responded that it was a case of  “extreme denialism and ignorance of the worst form” for an elected representative to be unaware of the fact that in 14 years, close to a million farm workers had been illegally evicted.

Mr Sibanyoni noted that during the public hearings, a member from the DA had stated that by deciding to relocate the Scorpions, the ANC had annoyed the electorate, and would therefore lose support in the forthcoming elections.

Mr Malesela rejected the pronouncement made by the DA representative. He remained convinced that the ANC-led alliance would continue to win elections because the majority of people “knew what was right for the country”.

Mr F Maserumule (ANC) asked the SACP to shed some light on the Browse Mole Report.

Mr Malesela explained that it was a factionalist intervention directed by the Scorpions to peddle activities of the ANC to a particular faction. He noted that an assurance was given from the highest office that heads would roll (of those responsible for the Report), but to date “not even an ear has moved”.

Rev K Meshoe (ACDP) remarked that when the DSO was established, there was a deliberate decision taken to locate it outside the SAPS, because of perceived corruption within the police service.

Mr Malesela replied that the creation of a parallel structure would not address perceived corruption within the SAPS.  He pointed out that there was proven corruption within the DSO and that this needed to be addressed. In conclusion, he stressed that the intention to fight corruption had not changed, and that debate was about what kind of institutional mechanism should be used to fight corruption.

Rev Meshoe enquired as to whether the SACP disagreed with the recommendations made by the Khampepe Commission.

Mr Malesela described the Khampepe Commission Report as “very strange”. While the SACP had agreed with all the observations made by Judge Khampepe, it differed with her critical recommendation that the DSO should continue in its current form.

Mr Carrim posed several questions, and indicated that the Committee expected a written reply to each one. Firstly, he asked the SACP to give concrete proposals on how the ICD could be strengthened. Secondly, he questioned whether the head of the proposed Directorate should be at such a low level as that of Divisional Commissioner. Thirdly, he enquired whether the SACP supported the provision that the head of the Directorate should be appointed by the National Commissioner.

The meeting was adjourned.

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