Progress Report on the Implementation of Commission Recommendations
Good morning to you, ladies and gentlemen from the media, thank you for coming this morning and welcome.
As you may be aware, yesterday we held a meeting with Chief Justice Raymond Zondo, following media reports about remarks attributed to him on the willingness and capacity of Parliament to implement recommendations of the Judiciary Commission on State Capture, which he had chaired.
Regarding the meeting itself, we want to firstly thank the Chief Justice for acceding to our request for such a meeting in order to clarify any matters relating to the remarks attributed to him in the media reports I referred to earlier. The meeting took place in a cordial atmosphere, underscoring the recognition of the need for continued engagement on matters of mutual interest pertaining to the constitutional obligations of both institutions. Crucially, Parliament remains fully committed to implementing the State Capture Commission’s recommendations.
Our Constitution has ensured that the distinctive roles of all arms of the State are respected in terms of the principle of separation of powers. All arms and spheres of the state must respect the constitutional status, institutions, powers and functions of government in the other spheres, and execute their power and perform their functions in a manner that does not encroach on the functions or institutional integrity of government in another sphere.
Both parties expressed their willingness to continue engaging on matters of mutual interest and concern, highlighting the importance of maintaining open lines of communication and cooperation between the Judiciary and the Legislature to uphold the democratic values and institutions that underpin our society. The Presiding Officers firmly reiterate that allegations suggesting Parliament’s sluggish processing of the Commission’s recommendations are unfounded. In fact, the meeting provided an opportunity for the Presiding Officers to brief Chief Justice Zondo on the extensive work being undertaken by Parliament.
Our request for the meeting, in the first place, was made within the spirit of the need to always find amicable solutions to any matters that may arise between the different arms of the State in course of the pursuit of their distinctive constitutional mandates. As announced in our statement issued on Friday the 23rd of June, we felt that such a meeting would be the best course of action rather than allowing a public spat between Parliament and the head of our country’s judiciary on the remarks that he was reported to have made. We indeed informed the Chief Justice of our unhappiness and objections to his views on Parliament’s ability to implement the recommendations of the Commission, especially as we believed them to have be incorrect. We believe that if the Chief Justice had requested a report for Parliament to update him on the work we have been doing in this regard, he would at least have based his comments based on the true facts of the matter.
We acknowledged however that there is currently no established mechanism through which the judiciary and Parliament can regularly share information on the specific work that each arm of the State is doing. There is no formal requirement for Parliament to provide progress reports to the Chief Justice on the implementation of the Commission’s recommendations. This may have resulted in a situation where the Chief Justice may not have been aware of the progress that the institution has been making with regard to matters raised in the report.
We have therefore felt it necessary that we convene this briefing to provide South Africans, with an update on the work done this far since the report was handed to Parliament by the President.
The Judicial Commission of Inquiry into allegations of State Capture, Corruption, and Fraud was established by the Government Gazette on 23 January 2018.
Parliament, again through its Executive Authority and various former and current MPs responded positively to the work of the Commission, including appearing and making various submissions on its oversight role, and the requirement to hold the Executive accountable.
The Commission submitted its report to the President, who tabled it in Parliament on 23 October 2022. The Commission made 16 recommendations on Parliament’s role, in addition to three recommendations relating to legislation and the work of the Committee on Ethics and Members’ Interests. Numerous recommendations also concerned state departments and other entities.
Most of the recommendations that the Commission made to Parliament related to the need to improve its capacity, strengthening oversight its mechanisms and possible legislative interventions that could strengthen accountability to the citizenry.
- In response to the Commission’s recommendations, Parliament developed a comprehensive Implementation Plan structured around four key focus areas, namely:
- parliamentary oversight and accountability,
- parliamentary oversight of the Executive’s response plan,
- monitoring of Parliament’s implementation plan, and
- parliamentary reforms to strengthen Parliament’s Constitutional mandate.
The Implementation Plan was referred to the relevant structures for implementation on 31 January 2023.
As part of the Implementation Plan, at least 22 relevant parliamentary committees have been assigned to oversee Executive action regarding the Commission’s recommendations. These committees are required to provide quarterly reports on oversight matters related to the implementation of the Commission’s recommendations. Recommendations pertaining to the rules of Parliament were referred to the Subcommittee on Review of Assembly Rules by the Rules Committee. The Rules Committee also referred recommendations relating to procedural and administrative matters to other House committees, as well as the Secretariat of Parliament for processing.
Parliament’s Constitutional Mandate for Law-making
Whilst Parliament acknowledges the significance of legislative reforms suggested by the State Capture Commission, it must also be noted that the mandate for legislation is vested on Parliament by the Constitution and should follow the prescribed processes, including public participation. Parties represented in Parliament also have a right to input or oppose any proposed legislation that is presented to Parliament. Parliament does, however appreciate the spirit within which the recommendations relating to legislation that can improve oversight and avoid similar levels of state capture in the future.
In this regard, work is underway to address these recommendations, and the Rules Committee has already considered them and made conclusive decisions on some of them.
1. Parliament’s Implementation of the Recommendations
The Commission’s recommendation to reform the Party Funding Act is being reviewed in the wake of the Electoral Amendment Act of 2023, which for the first time, will also allow for independent candidates to contest in national elections, as directed by the Constitutional Court.
Section 10 of the current Act already makes it an offense to receive or give a donation for any reason other than party political reasons. Additionally, Section 8 makes it an offense to receive a donation from a prohibited source.
Furthermore, Parliament has taken note of the Commission’s recommendation to consider passing electoral reforms enabling a constituency-based electoral system alongside the existing proportional representative system. The recently enacted Electoral Amendment Act of 2023 establishes the Electoral Reform Consultation Panel, which will consult and make recommendations on potential electoral system reforms. While Parliament accepts and welcomes the guidance of the Commission’s recommendations, Parliament cannot guarantee that the outcome of the law-making process, including consultations and public participation will result in an outcome that will be consistent with the specific recommendation from the Commission. This is the context within which Parliament must approach its implementation of those specific resolutions that relate to legislative reform.
Regarding the Commission’s recommendation to enact legislation protecting Members of Parliament from losing their party membership and seats, Parliament affirms that the Constitution and the Powers, Privileges, and Immunities of Parliament and Provincial Legislatures Act of 2004 already provide powers and protection to members in the exercise of their functions. It is the view of Parliament therefore, that no new legislative interventions are required in this regard.
The Commission also recommended amending the Intelligence Services Oversight Act to ensure that, at the end of each term, the Joint Standing Committee on Intelligence of Parliament provides a consolidated account of its work conducted during the course of the five-year term. After careful consideration, the Joint Standing Committee on Intelligence concluded that no amendments to current legislation are necessary, as the existing law already addresses the Commission’s concern. The committee did however recognised the lack of adequate capacity in this regard and in line with the need to ensure consistent and regular reporting, the committee’s support capacity has been reinforced.
It is important to note that the Commission made a number of observations and recommendations regarding Parliament’s capacity challenges that impact on its ability to provide qualitative oversight on the Executive. This may also have contributed to incidences of state capture continuing unchecked and unaccounted for. In this regard, Parliament has conducted a review process for its budget, especially its financial requirements for oversight work in Committees and has started engagements with Treasury to find ways in which the shortfall in its baseline and be addressed. Parliament has also ramped up its capacity building and training of members to equip them with the necessary analytical and technical skills required in the exercise of their mandate, especially with regard to law-making and oversight. The Parliamentary Institute is now fully established and should serve to give us institutionalized capacity for accredited training qualifications and research.
We believe that new interventions with regard to institutional renewal in Parliament, including the new governance model, the oversight model and organisational restructuring will strengthen Parliament’s oversight role. We are steering Parliament towards qualitative, impact making oversight, ensuring not just accountability for budgets and expenditure, but improvement in service delivery to South Africans. We believe this to be in consistent and in line with the recommendations of the Commission on improved capacity for oversight.
The Commission also highlighted instances where the Executive failed to take account of parliamentary resolutions and report on them. Parliament acknowledges that challenges with resolution implementation sometimes originate within Parliament itself, including monitoring and the technical nature of resolutions. To address these challenges, the Rules Committee recommended that recommendations arising from committee activities be substantiated, specific, include timeframes, and relate to matters within the purview of the Assembly. Additionally, the Speaker will maintain a record of resolutions and, in case of delays, liaise with the Leader of Government Business. The Speaker will report to the Rules Committee of the National Assembly twice a year on the status of responses.
To ensure appropriate Executive accountability for processing resolutions, Parliament will enforce measures requiring the Executive to report to Parliament on measures emanating from resolutions within the prescribed timeframes or, if no timeframes have been given, within 60 days. The Leader of Government Business will submit an annual report to the Speaker on the status of Executive compliance with resolutions, which will be included in the Speaker’s report to the Rules Committee.
The Commission also raised concerns about instances where Ministers and others failed to appear before Parliament without adequate cause. The Rules Committee notes that the Powers, Privileges, and Immunities of Parliament and Provincial Legislatures Act (Act 4 of 2004) already considers such actions as contempt of Parliament, making them offences under the Act. However, invoking the Act has always been seen as a last resort, and cooperation between Parliament and the Executive is preferred before pursuing sanctions. The Rules Committee emphasizes that measures have been implemented to facilitate Executive attendance, and existing legislation has been successfully utilized, as demonstrated recently by a Minister summoned to appear before a committee in 2022.
- Merit-based Appointments in State Institutions
Regarding the selection of office-bearers for state institutions or organs, the Commission emphasized the importance of high-level public scrutiny and merit-based appointments. Parliament acknowledges that laws and best practices concerning the selection of certain office-bearers are already in place, ensuring merit-based appointments. To enhance the integrity of these appointments, Parliament will develop guidelines that incorporate relevant laws and best practices, as appropriate.
- Oversight Over Presidency
Parliament has considered establishing a committee to oversee aspects of the Presidency not currently supervised by existing structures, as recommended by the Commission. The Parliamentary Budget Office (PBO) conducted research to identify aspects of the Presidency budget not currently subjected to parliamentary scrutiny. The PBO concluded that Parliament should strengthen its oversight over the Presidency and recommended further research. The Rules Committee agreed that the PBO’s desk-top research should be supplemented with a fact-finding visit to explore international best practices on the matter. This comprehensive approach will establish a solid foundation for the Seventh Parliament, and the findings of the fact-finding mission – scheduled for July 2023 – will be processed.
- On the recommendation regarding the consideration for Committee Chairpersons
The Commission also suggested that parliamentary oversight may be better served if more chairpersons were elected from minority parties. Parliament affirms the authority of the Assembly to determine committee chairpersons and internal arrangements, proceedings, and procedures. In this regard, the multiparty Rules Committee agreed it was not desirable to interfere with democratic decision-making processes within committees, which include election of chairpersons.
- MPs identified in the Commission Report
During the Commission’s proceedings, several Members of Parliament were implicated. The Presiding Officers referred six Members of Parliament to the Joint Committee on Ethics and Members’ Interests. Additional six were also referred to the committee by an external entity, named “United behind”. To date, the Committee has found against 3 MPs, cleared 5 while 2 are still under consideration. At least 2 MPs have since resigned from Parliament, and therefore fall outside of the scope of the application of the ethics code.
The committee will give a comprehensive report of this work in line with quarterly reporting arrangement.
- Oversight over the Executive’s Implementation Plan
With respect to the Executive’s implementation plan, submitted by the President to Parliament, Parliament acknowledges that the President’s response to the Commission’s recommendations includes the implementation of specified recommendations, outlines the implementation of aspects of recommendations, and identifies areas for further consideration. Some responses provide reasons for not implementing specific recommendations, including instances where they overlap with ongoing government work.
The majority of the Commission’s recommendations are directed toward law enforcement agencies for investigation and potential prosecution. Although these agencies operate within the Executive arm of the state, they are constitutionally and legislatively mandated to exercise their responsibilities independently.
To ensure the desired outcomes of these recommendations, the designated committees and structures of Parliament must provide quarterly reports to the Programme Committee. Committees are reporting on the progress in monitoring and overseeing the implementation of the Commission’s recommendations.
Once again, the Presiding Officers of Parliament commend the constructive spirit within which the meeting with Chief Justice Raymond Zondo took place and express their gratitude for the frank discussions held during the engagement. Both the Judiciary and the Legislature remain committed to upholding the principles of our democracy and working together to address the challenges and fulfil their respective constitutional obligations. Parliament assures the public that it is dedicated to implementing the Commission’s recommendations diligently and transparently, ensuring accountability, and safeguarding the integrity of our democratic institutions.
Thank you
ISSUED BY THE PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA
For media inquiries, please contact Moloto Mothapo
29 June 2023
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