The Committee discussed the Committee’s Final Report and the minority report on parliamentary process concerning the submissions and comments that had been made. Opposition parties proposed that a minority report, written on behalf of all the opposition parties be inserted into the Final Committee Report. The majority party rejected this proposal as it would lead to a repetition of facts and delay the process. They indicated that the views of opposition parties would be included in the Final Committee Report.
Opposition parties accused the majority party of reneging on its promise to allow them to have a minority report included in the Final Committee Report. The majority party endorsed the decision taken by the President to axe Adv Vusi Pikoli. The Democratic Alliance, Inkatha Freedom Party, Independent Democrats and the Freedom Front Plus voted against the recommendation.
Meeting reportMr Tertius Delport (DA) said that the opposition did not have a major problem with the content of the draft Committee Report, provided that it included the joint report of the opposition as was agreed. He noted that he had emailed a copy of the report to the Committee secretariat.
He proposed that Paragraph 7.6 to 7.11 be deleted and substituted with Paragraph 8 that would detail the position of the opposition.
Mr Bhutana Khompela (ANC) said that the proposal made by Mr Delport could not be adhered to as the ANC did not have a copy of the opposition’s minority report. He said that the late submission of documents was not ideal and that the ANC should be granted an opportunity to study the report, just as it allowed the opposition an extension. He proposed that the Committee adjourn for 30 minutes so that ANC Members could familiarise themselves with the report.
Mr Koos van der Merwe said that he supported the suggestion made by Mr Khompela that ANC Members should be allowed a 30 minute break to familiarise themselves with the report.
Mr Archibald Nyambi (ANC) proposed that the Committee should deal with Paragraphs 1 to 6 first, before the Committee adjourned for 30 minutes.
Mr Monareng granted the motion.
The Committee agreed on Paragraph 1 to 6 of the draft Committee Report.
Dr Frits van Heerden (FF+) asked why the opposition political parties had not been mentioned by name, as with the other paragraphs.
Kgoshi Mokoena replied that the particular paragraph would be amended to include the names of the opposition parties.
Mr Delport proposed that a new Paragraph 8 be inserted with a suitable caption as the opposition did not agree to anything in the rest of the Committee Report. He said that the Committee Report created the impression that opposition parties endorsed the decision taken by the President.
Mr Yunis Carrim (ANC) said that it would be more suitable to place the views of the majority party (ANC) at the back of the report, as it would also include the findings.
Members agreed on this.
Mr Carrim said that the Committee researchers should be asked to summarise the recommendations and findings of the Committee. He said that that it was regrettable that the Joint Standing Committee on Intelligence (JSCI) did not institute any disciplinary action against the perpetrators of the Browse Mole Report. He said that the opposition should caution against the repetition of information.
Mr Delport asked whether the content of the Browse Mole Report had ever been discussed during their deliberations.
Mr Carrim replied that his understanding was that the Browse Mole Report had been discussed during the deliberations as questions had been posted to that effect. He said that it would not be feasible to reduce the Browse Mole Report to three bulleted paragraphs in the Report as it had to be properly summarised.
Mr Delport noted that a review of the Ginwala findings on the Browse Mole Report should also be done as to not conflate the real reason for Adv Pikoli’s suspension.
[The meeting was adjourned for the ANC to consider the proffered minority report.]
When the meeting reconvened, Kgoshi Mokoena said that the ANC had gone through the report by the opposition. He asked for comments from the Members.
Mr Khompela said that it would not be prudent to go through the minority report, page by page, as it would take up too much time. He said the ANC would engage on the document as the process unfolded.
Mr Carrim said that the opposition had listed three major concerns with the draft report. These concerns were that the goal posts in terms of Adv Pikoli’s suspension had been shifted, that there was no proper definition of what “fit and proper” meant as well as the language used by the parliamentary researchers.
He noted that the opposition parties also stated that there had been no correlation between the initial suspension letter, the Ginwala Report and the reasons given by the Presidency for the subsequent axing of Adv Pikoli. He said that other Members should also engage on the minority report and express their views and that most of what the minority report entailed was already covered in the draft Committee Report.
He added that the opposition parties had brought up a new concern which was not discussed during the deliberations. The concern revolved around the actions of Menzi Simelane, the Director-General (DG) of Justice and the findings by the Ginwala Enquiry that ‘berated’ the DG for his actions. He said that the Ad Hoc Committee did not have the mandate to investigate the adverse findings made by the Ginwala Enquiry about the Justice DG. Nothing precluded the Committee from recommending in the annexure that the role of the Justice DG should be investigated further. He pointed out that President and the Justice Minister had asked the Public Service Commission (PSC) to investigate the role of the Justice DG.
Mr Khompela agreed that the Committee did not have the mandate to investigate the Justice DG. He said that the document by the opposition should be seen as a late submission and not a proper parliamentary report as it did not conform to the standards of Parliament. The document could thus not be included in the Final Committee Report.
Mr Monareng said that the opposition parties had already stated that they opposed the decision taken by the President.
Mr Cecil Burgess (ANC) said that the minority report did not make any mention of the Browse Mole Report. He asked what the reason was for its exclusion. He asked if the opposition parties admitted that the ANC had been right in condemning the actions of Adv Pikoli in relation to the Browse Mole Report.
Mr Nyambi said that what struck him about the minority report was the selective quotations from the Ginwala Report, which suggested that Adv Pikoli had been unfairly treated. He said that the opposition parties wanted to create an impression that the ANC was fabricating stories, which was not true. The Committee should not entertain the idea of being selective as the entire Ginwala Report was relevant.
Mr Delport said that it was prudent for opposition parties to express their views in the same manner that ANC Members had done, hence the minority report. He acknowledged the competency of the parliamentary researcher, but added that opposition parties wanted to include their own views in the report. The minority report was clear on the matter of the Justice DG as it stated that the Ginwala Report had made some serious adverse findings on the actions of the Justice DG.
He added that opposition parties challenged the Ginwala Report in how it dealt with the issue of national security, as it never adequately defined what was meant by this. Very serious questions had to be posed about this: Adv Pikoli carried out his constitutional mandate to prosecute individuals suspected of committing crimes and could this be overridden if there were issues of national security involved?
He said that legal experts had indicated that national security should never have been a factor, as Adv Pikoli did not participate in any clandestine activities and that he had informed the Minister of Justice and the President on numerous occasions on the status of the investigation into Jackie Selebi. The onus had been on the Justice Minister and the President to institute the necessary processes that would have averted the subsequent events.
He said that the ANC had assured opposition parties that their views would be included in the Committee Report, but that it now seemed as if this was not going to happen. He slammed the ANC for being dishonest and said that the ANC was worried about the impact their decision would have, but ultimately the ANC would have to live with that decision.
Ms de Lille said that she hoped that the deliberations would not start again as that part of the process had been concluded. The Ginwala Report contained both adverse and favourable findings about the conduct of Adv Pikoli, but that Dr Ginwala had vindicated Adv Pikoli as she had described him as a consummate professional and a person of unimpeachable integrity.
She added that Members had to take a holistic approach to the whole process as all humans were fallible and that opposition parties had the right to use those extracts from the Ginwala Report to substantiate and or refute the various allegations that had been made against Adv Pikoli. Opposition parties accepted the version by Adv Pikoli on the Browse Mole Report as he had given very credible and factual responses to the questions that had been posed to him.
Mr Tau said that Adv Pikoli had no regard for national security as he admitted that he did not know what happened to the draft Browse Mole Report. The submission by opposition parties did not assist the Committee as a lot of emphasis had been placed on the Ginwala Report. He noted that Dr Ginwala was not the President of the Republic, but merely the head of an enquiry that had to make findings on the suitability of Adv Pikoli to hold public office. Opposition parties were misguided in refusing to endorse the decision taken by the President.
Mr van der Merwe objected to the comment made by Mr Tau as it was ‘nonsense’.
Mr Tau objected to the comment made by Mr van der Merwe as it was not parliamentary.
Mr Bulelani Magwanishe, Deputy Chief Whip, asked the co-chairs to make a ruling on the comment made by Mr van der Merwe. The ANC had taken note of the decision by opposition parties not to endorse the decision by the President, but the ANC had decided to endorse the decision taken by the President to axe Adv Pikoli. He said that Adv Pikoli should not be reinstated, regardless of the fact that no adequate definition for ‘fit and proper person’ could be found.
He added that the Constitution had conferred functions on various government departments and agencies that had to be adhered to at all times and if these mandates were violated then it would be seen as a serious breach of trust. The National Prosecuting Authority (NPA) had no mandate to gather intelligence, yet reports later surfaced that indicated that the NPA did involve itself in intelligence gathering. The NPA failed to communicate its decision to the Justice Minister on intended action against Jackie Selebi. Adv Pikoli as National Director of Public Prosecutions (NDPP) should be held responsible for his actions as he failed to fulfil his mandate.
Mr Monareng noted that the word nonsense’ had a double meaning and that he ‘hoped’ that Mr van der Merwe meant that Mr Tau made ‘no sense’ instead of ‘nonsense’.
Mr van der Merwe stated that the minority report by opposition parties destroyed the arguments of the ANC and called on the ANC-dominated Committee to include the exact views of opposition parties in the Committee Report. He said that the ANC should show that they are real democrats and reach a final conclusion on this matter.
Dr van Heerden said that it was common practice during a court judgement that included more then one judge or magistrate to produce a minority and majority report. Judges did not approach a case from the same angle as their colleagues and that this illustrated why the ANC had to include the exact views of opposition parties in the report.
Mr Magwanishe said that the House Rules did not allow the submission of a majority and minority report on parliamentary processes. The ANC would object to the tabling of a minority report. He said that the Committee Report would include the comments made by the opposition but the minority report by opposition parties was rejected.
Ms de Lille said that although opposition parties did not agree with the ANC, they accepted the comments made by the ANC. She said that it was important to conclude the matter and not reopen deliberations.
Mr Carrim said that the report would state that opposition parties did not accept the majority report. In terms of processing, the actual wording of the findings had to be specified in terms of the required legal framework. He noted that it would be prudent to investigate what the legal status of a judicial enquiry findings were in relation to a decision taken by a President after being presented with the findings.
Mr Delport said that the ANC should not make promises that it could not keep. The opposition parties merely wanted to submit their own comments on the process that would have been included the Committee Report. He said that the ethics displayed by the ANC spoke volumes and that politicians should be wary of making promises they know they would not fulfil.
Mr van der Merwe proposed an amendment to the existing Committee Report that would include the exact views of opposition parties.
The ANC rejected the proposal.
Mr Khompela noted that parliamentary researchers should include the views of the opposition in the majority report so as to avoid a repetition of comments, which was the case with the current minority report submitted by opposition parties.
Mr Delport said that it was clear that the political superiors of the co-chairs had instructed them on the course of action that had to be taken. He noted that this was most unfortunate.
The Committee formally recommended that the decision taken by the President to axe Adv Pikoli should be upheld. The ID, DA, FF+ and the IFP voted against the recommendation by the ANC. The ACDP was absent.
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