Introduction

The Ad Hoc Joint Sub-Committee (herein referred to as the "sub-committee") was tasked with considering the report prepared by Prof. H Corder, Ms S Jagwanath and Mr. F Soltau entitled Report on Parliamentary Oversight and Accountability (herein referred to as the consultants’ report), and making recommendations to the Joint Rules Committee on its findings. What follows is the report of the sub-committee on work done in this regard.

The sub-committee had some discussion regarding its own terms of reference, as it seemed at some stage to be unclear to some members of the sub-committee. The sub-committee proceeded on the basis that it was not to engage in oversight activities itself, neither was it to oversee other committees in their oversight work. Its task was merely to consider the report prepared by the consultants’ and to submit its findings to the Joint Rules Committee.

This report seeks to document the essential discussions and conclusions of the sub-committee on every chapter of the consultants’ report. Where it was felt that the consultants’ report dealt with issues inadequately or not at all, the committee has attempted to expand on the issues primarily through its discussions, and further by hearing submissions and where possible, it sought to utilize the research that individual members of the subcommittee were able to undertake. In as far as this further research is incomplete, the committee accepted these inevitable limitations in light of the lack of technical capacity in the sub-committee.

Where it was thought that the consultants’ report fell short and the sub-committee was unable by itself to enhance or improve the report, due again to the lack of technical capacity, an attempt was made at the very least to highlight the issues in question and make appropriate recommendations. This is particularly the case in areas where it was thought that the report lacked full consultation and empirical data.

The terms of reference, prepared by Parliament, for the consultants’ is attached herewith marked "Attachment A". It is noteworthy that many of the areas of research set out in the initial contract with the consultants’ were aimed at enabling Parliament to practically improve existing mechanisms of oversight and to identify areas where oversight mechanisms were required to be put in place. The overall impression of the consultants’ report is that it is more theoretically orientated and with a few exceptions neither assesses existing oversight mechanisms nor does it make a substantial number of practical recommendations on mechanisms that require refining, reviewing or establishment. It was pointed out during the course of the sub-committees numerous discussions that a particular weakness of the consultants’ report is that none of the parliamentary role-players were consulted during its compilation.

Some of the major omissions of the consultants’ report are highlighted in the body of the sub-committees report. A few, however, bear noting upfront:

1. A comprehensive list of entities that are accountable to Parliament has not been compiled. It is recommended further on in the sub-committees report that while the Public Finance Management Act, contains a list of public bodies that are to be regulated by it, this may be insufficient for Parliaments needs and that a comprehensive policy in this regard should be developed by the Joint Rules Committee. This would entail the categorisation of public bodies accountable to Parliament; clarity on their lines of accountability as well as a monitoring mechanism to determine from time to time which bodies exercise public power.
2. The nature, frequency, contents and purposes of reports currently submitted to Parliament is an area that has not been fully developed by the consultants’ and the sub-committee hopes to make some detailed recommendations in this regard arising from the proposals of the Public Service Commission which have been referred to it for consideration. A comprehensive assessment of existing parliamentary mechanisms and procedures has not been done either by the consultants’ or the sub-committee. The sub-committee is of the view that should such an assessment still be required, it is best achieved through a separate dedicated process in which all oversight practices are evaluated against set criteria of efficiency and effectiveness. Such a task should be given to a well-resourced sub-committee of the Joint Rules Committee of Parliament, which is able to complete its task within a set timeframe.

The Sub-Committee however wishes to point out that the value of the consultants’ report lies in the fact that for the first time in its brief history Parliament is able to focus on some of the critical issues underpinning its functions within the purview of our constitutional order.

The recommendations of the Sub-committee are set out in the context of its deliberations on each of the chapters of the consultants’’ report.

The recommendations are however inextricably linked and are best read in this fashion. In this regard the concluding paragraph of this report in apposite.

It should be noted at this juncture that the sub-committee dealt with both Houses of Parliament simultaneously. All of its recommendations apply equally to both Houses unless otherwise expressly stated.

The sub-committee accepts that the establishment of mechanisms within Parliament is of some import. However, the sub-committee is of the view that the mere existence of oversight mechanisms will do little to enhance the practice of oversight, if there is a lack of appreciation of the role and function of oversight by MPs and the broader South African Community.

As only the second Parliament in our young democracy it is incumbent upon this Parliament to put in place measures that will promote the development of an institution worthy of the vision held by those who coined the phrase "The People’s Parliament". This Parliament has a special responsibility to build a strong foundation upon which a dynamic institution may evolve. In this regard,

the development of a sound understanding of the oversight role of Parliament (and Provincial Legislatures) is critical.

The culmination of this understanding is vital both within Parliament and without in order for Parliament to develop into a germination chamber for new thought and ideas which together are the fuel that drives our democracy, and fulfils the ideal of a living Constitution.

The sub-committee recommends that:

1. Read with s239 of the Constitution, the clause creates the responsibility for the National Assembly to hold organs of state accountable. In this regard it is pointed out that: there are numerous bodies that can classified as organs of state.
2. The Public Finance Management Act lists many of these bodies.
3. The National Assembly may find it impractical or unfeasible to exercise oversight over all of these bodies on any fixed or regular basis.

The sub-committee is of the view that as daunting as the task might be it does not detract from the obligation placed on the National Assembly to ensure that mechanisms are created and are available to comply with the constitutional imperative. While there has not been a concerted attempt to determine exactly how onerous a task the exercise will be, there is room for precisely such an exercise to take place.

The subcommittee proposes that Parliament has a few options to consider in developing mechanisms to oversee organs of state. In this regard two broad approaches may be followed:

• Tracking the path of huge allocations of public money.
• Focusing on issues of National Interest.

The subcommittee recommends that:

1. Parliament commissions an audit of the various bodies exercising public powers or performing public functions and which should in addition clearly delineate which line-function departments are responsible for the various organs of state. Portfolio and select committees within Parliament will consequently assume the necessary oversight responsibility.
2. Parliament through the Joint Rules Committee develops a policy aimed at meeting its constitutional obligations set out in S55(2)(b)(ii)
1. Such policy should consider the necessity for basic legislation

The sub-committee felt that the consultants’ had adopted a narrow view of the oversight role of the NCOP. They appeared to be overly concerned with idea that the oversight practices of the NCOP should not duplicate that of the National Assembly. There appeared to be insufficient attention given to the inherent oversight role of the NCOP.

Certain omissions by the consultants’ were noted. Inter-alia these were a lack of evaluation of existing oversight mechanisms, an absence of discussion on the NCOP’s oversight role in the intervention procedures set out in sections 100 and 139 of the Constitution, and the NCOP’s role in the budget process with particular reference to the Division of Revenue, as well as the NCOPs role in co-operative governance and inter governmental relations especially intergovernmental fiscal relations.

The sub-committee took a briefing from the honourable Chief Whip of the NCOP, on particularly the unique focus of the NCOP, Public Participation, and the NCOP’s constitutional mandate.

The sub-committee concluded inter-alia:

1. Parliament comprises two Houses .
2. Areas of convergence arise particularly in matters of concurrent powers but are dealt with from different perspectives.
3. While each House has a specific orientation and each has specific oversight objectives, it would be incorrect to suggest that limits are placed on any one of them.
4. The areas of specific focus sometimes defy strict categorisation. The intervention processes of the NCOP, for instance, intersect to some degree with the oversight role of the Provincial Legislatures and the National Assembly. In some areas of exclusive competencies such as Safety and Security, provinces have appointed MECs, who are in turn, overseen by Provincial Legislatures, the NCOP also has adopted a role for itself in the form of the Select Committee for Security and Constitutional Affairs. The relationships should be seen to be complimentary.
5. Where there is duplication between the two Houses, Parliament requires a co-operative ethic where complimentary working relationships are fostered.
6. The lack of a formal communications channel between committees of the two Houses was noted.

The sub-committee recommends that:

1. The JRC initiate a process aimed at drafting guidelines for portfolio and select committees to allow inter-alia for joint planning of oversight work.
2. A process should be initiated to establish protocols to ensure structured communication between committees through streamlining of the committee section, which would allow for more effective and formal communication between committees of both Houses that embark on mutual interest oversight work and briefing sessions.

The consultants’ report focused on the reporting system in Parliament and its shortcomings.

In this regard the sub-committee noted various omissions.

1. The chapter is entitled "Existing Procedures and Practices for Exercising Oversight", but omits to deal with all of the existing oversight mechanisms or activities in both Houses.
2. Although oversight work is done in plenary, in committees and by MP’s individually, all of these facets of oversight work are not captured in the report.
3. The Budget process in any Parliament is an important tool. It is a fundamentally crucial moment in the lifespan of government, which brings the full scope of Parliament’s oversight role to bear on government’s priorities. Parliament does not, currently, effectively participate in the budget process. There is, however, no full evaluation of the current practice in our Parliament, nor a comparative analysis of the budget process in other Parliaments, in this chapter of the consultants’ report.

The sub-committee took a briefing from the Hon. M J Mahlangu, who has been leading an ANC initiative intended to develop a more appropriate role for Parliament.

Parliament’s constitutional responsibilities are:

• Passing legislation (sec 43(a) of the constitution Act 108 of 1996)

• Conducting oversight (inter-alia sec 92(2), 55(2) and the PFMA)

• Budgeting (sec (77) )

• Amending the budget

The principles guiding the proposals made to effect reform are essentially:

• The compilation of the budget is essentially an executive function and Parliament should maintain its integrity and ensure that it does not purport in any way to assume any of the functions of the executive

• Like all stakeholders Parliament should develop an influencing role for itself during the compilation process

• Parliament should draw on its oversight experience to inform and influence the budget

• The greater part of Parliament’s influence should be focused on the compilation stage of the budget and amendments to the budget should be affected only in extreme and extraordinary contingencies. Examples of these could be significant incongruency between spending and delivery - where policy and spending priorities do not match or in the event of extreme departmental waste or inefficiencies

In conclusion it was pointed out that in order to begin a reform process to enhance its budgetary role, Parliament would inter-alia have to:

1. Formalise its relationship with the Executive for the purposes of sharing relevant information.
2. Channel its attention toward budget issues and focus on the more effective performance of its oversight functions.
3. Increase its technical capacity congruent with the new tasks taken on through budget reform initiatives.

The subcommittee noting the inextricable link between effective Parliamentary oversight and Parliament’s role in the budget process recommends that:

1. Parliament develop a formal process to enact legislation in terms of S72(2) of the Constitution.

On the issue dealt with by the consultants’ in some detail, the sub-committee took a briefing by Mr. C Hahndiek, Secretary to the National Assembly, on some developments in Parliament since the consultants’ report was produced.

1. New rules are now in place that ensure that all reports received by Parliament are referred to committees. These rules have been adopted in March 1999 and appear to be functioning well.
2. The Rules are adequate for committees to carry out all the oversight work they are required to carry out in terms of Papers received. The Report on Parliamentary Oversight and Accountability, points out that not all committees pursue the oversight role equally actively. The important point is that different committees understand the oversight role differently. There is no consistent understanding and approach to the exercising of the oversight role.
3. The degree of cooperation between committees and departments varies: in some cases it is hostile and in some committees, there is a close relationship. Sometimes the relationship is so close that the necessary separation of powers is not maintained. To establish a healthy relationship between a committee and the department is very important, but it needs to be clarified exactly what that relationship should be for Parliament to perform its functions.
4. The time available to committees to conduct oversight is inadequate. National Assembly has a very busy programme. Available time for committee meetings in terms of the programme is Tuesday and Wednesday mornings. Therefore committees do not have time to exercise its oversight function, looking at the Papers referred to them and legislation.
5. Its an exception rather than a rule for committees to report to the House on the actual oversight function; on what they have been doing, what they have learnt from oversight activities and recommendations they wish to make flowing from such oversight. The current committee reports show that there are very few substantive reports, which arise from oversight activities as opposed to bills before committees and briefings on votes. These problems require practical attention within Parliament without needing any amendment to Rules. The reason that reports are

 

 

 

 

 

 

generally not debated, is because the Rules are silent on the issue and it is at the discretion of the House itself, or the programming committee where decisions are taken on which issues are going to be debated and for how long. The decision ultimately rests with the Whips and programming committee

6. When a report recommends a Minister to take action on an issue, is adopted by the House, Parliament needs a tracking mechanism to ensure compliance.

1. It is important for Parliament to develop its oversight role in a more formal and structured manner to include systems of keeping and mechanisms for tracking;
2. It is important for committees of both Houses to develop a common understanding of their oversight role which should include the development of a healthy and conducive relationship with the relevant department and tracking compliance of promises made;
3. In order to be effective, committees have to be adequately resourced and capacitated;
4. A long-term plan is needed to build the oversight capacity of Parliament and develop an institutional memory within Parliament.

The sub-committee recommends that:

1. The Joint Rules Committee develops a policy allowing for more debates on committee oversight reports to be programmed. These debates should take the form of MPs raising issues of concern based on the reports tabled and Ministers responding to those issues.
2. The Joint Rules Committee begins a process aimed at producing a long term institutional Vision and Mission Statement aimed at building Parliament’s oversight capabilities through adequate resourcing and capacity building in committees, Constituency Offices and within Parliament’s administrative support structures – in particular the Committee section where

 

 

 

 

 

 

a record-keeping system, and tracking mechanisms are required to be established.

3. Parliament adopts a policy requiring each new Parliament to assess and review its oversight capabilities once during its five-year lifespan.

After outlining some of the deficiencies of this chapter the subcommittee went on to consider the recommendation by the consultants’ that Parliament adopt an Accountability Standards Act.

There were two views in this regard. Both views favoured in principle the tabling of such legislation but differ substantially in regard to the motivation for such legislation and the timeframe within which such legislation should be considered.

The view was expressed that the implementation of legislation at this stage is premature and that the effective performance of oversight work by committees particularly, entails more than mere legislative intervention. It spans the terrain of capacity and resource available to committees, as well as programming of oversight work within the general program of parliamentary work.

One of the strengths of the oversight role has been its flexible nature and the fact that Parliament has been able to adapt its oversight work to fit the particular oversight contingency. Oversight is a developing practice in our nascent Parliament particularly now as it shifts gears from legislating to implementation mode. A stringent legislative framework would merely stifle the growth of an oversight culture and would render the institution at the mercy of self- imposed limitations. It is felt that a young Parliament such as ours is unable to plunge headlong into a legislative framework based on the conventions of other Parliaments ours must be a richer and all embracing culture.

If legislation were eventually to be passed, it would be essential that it be done as a "concretising" mechanism that is informed by and meant to codify existing practices and conventions. The comprehensive landscaping of the constitutional provisions together with a development within Parliament of an understanding of its oversight role, as proposed in chapter 3 above, as well as the more involved role of Parliament in the budgetary process, is the true catalyst for the oversight role of Parliament.

While it is thought that the proposed Act is pre-mature and that the objective of the law should rather be to facilitate and aid oversight and accountability activities, Parliament should begin to develop systems that address these issues. An accountability guide should be developed, which outlines such matters as what Parliament requires in reports from accountable institutions, the procedures to follow in reporting to Parliament and also the procedural requirement to be followed by MP’s when tabling questions or by Chairpersons when having to resort to summonsing individuals to appear before them. This manual will also serve as a guide to bureaucrats and all those who are meant to account to Parliament. Over time Parliament would then be in a position to determine whether or not such provisions may be best housed in legislation

1. Parliament should begin a formal process of evaluating its oversight activities as distinct from its legislative role and developing a manual on Accountability and Oversight for MP’s and Committees, with the intention of constantly developing and refining such a manual.

The alternate view holds that the PFMA has created a clear framework for financial management, transparency and accountability in government departments, public entities and constitutional institutions. It will greatly assist Parliament in holding government departments to account and exercising oversight of public entities and constitutional institutions. No comparable instrument exists in regard to policy and government programmes.

The relationship between and relative responsibilities of Ministers and head officials is more complicated than the PFMA assumes. In our system, as the consultants’ point out, it is true to say that high-ranking public servants are not merely implementers but also play an important role in advising their Ministers and formulating policy with them or for them.

In addition, the President now appoints Directors-General. In practice, it is they who appear before portfolio committees, yet in terms of convention and the PFMA they are only responsible for outputs, not policy and "outcomes". The consultants’’ proposal is that matters like these should be resolved in a law. That is clearly the most desirable route.

A new twin act complementing the PFMA would firstly, like that act, spell out what is expected of the executive and administration and, secondly, give parliament clarity on the standards against which policy and outcomes must be monitored.

That Parliament adopts the recommendation as proposed by the consultants’ that an Accountability Standards Act be enacted.

The following proposals were made in the consultants’ report for committees of Parliament:

2. "Beefing up the existing parliamentary research capacity to undertake management and programme audits;

And increasing the duties of the Auditor-General's Office." (page 47)

The sub-committee regards the matter of capacity and resources to committees as vital to the effective performance of oversight by committees. A comparative study of other Parliaments in this regard would have been useful. Such a study must be conducted with a view to building Parliaments capacity generally, and committee’s resources specifically, over a period of time.

The sub-committee differed with the suggestion that the Auditor-General perform oversight for Parliament since his/her priorities differs from that of Parliament. The role of the Auditor General is specified in the constitution and is specific in nature. The inter-action with Parliament is essentially through the Committee on Public Accounts, there seems little justification in the Report to change this.

However, it was agreed that there is a great need to acquire independently gathered information in order to ensure effective oversight. At present, apart from public hearings which are primarily held during the law-making phase and apart from information gathered during oversight visits, committees are largely dependent on information elicited from departments themselves.

It is considered imperative that Parliament begins to develop such a capacity of its own. It is acknowledged that this may entail long term planning but in the interim Parliament should devise effective links with bodies engaged in oversight work of their own. In this regard, developing links with many institutions supporting democracy is considered important.

The subcommittee is of the view that much of the expertise in regard to the exercise of oversight exists within Parliament in the form of committees and committee chairpersons. Given the nature of Parliament it is to be expected that the expertise acquired during the first and second democratic Parliaments will largely be lost over time as a new crop of MPs get elected into their seats. It is therefore crucial to develop an institutional memory and to allow future Parliamentarians to build on this strong foundation.

1. Parliament, urgently takes measures to develop a Best Practice Guide to capture inter-alia the best oversight practices of committees and the experiences of chairpersons of various Select and Portfolio committees.

1. Introduction of Legislation to guarantee and protect the independence of Constitutional Institutions.
2. Establishment of a Parliamentary Standing Committee that will be dedicated to issues arising from the Constitutional Institutions Supporting Democracy.
3. The consultants’ detail two options in regard to the process of budgetary allocation:
1. A direct charge to Treasury.
2. Constitutional Institutions should be grouped together for financial and administrative implications.

The subcommittee noted with concern that the only bodies that were consulted were the Chapter 9 Institutions. Other relevant roleplayers were not consulted eg. Chairpersons of Justice and Public Service & Administration Portfolio/Select Committees. The Treasury Department was also not consulted although specific proposals were made in regard to the budget allocation processes for these institutions.

The subcommittee is of the view that the proposals of the consultants’ need comment from a broader group of stakeholders but that the Joint Rules Committee would have to decide on the way forward.

That Parliament initiates a consultative process engaging all relevant stakeholders on issues such as the independence of the ISD, the more co-ordinated interaction between Parliament and the ISD, the effectiveness of the oversight roles of the ISD, their budgetary procedures and their accountability to Parliament.

This chapter of the consultants’ report embodies the Executive Summary. The subcommittee did not feel the need to comment on this chapter as it merely embodies in a summarised fashion the contents of other chapters.

Chapter 2 of the consultants’ report deals with the concepts of Oversight and Accountability.

Accountability in the context of the consultants’ report is the requirement that the executive organ of state, has to explain and justify to Parliament, against objective criteria, a decision or action. It is a specific concept and it pertains to a person or body who is meant to give account or explain certain action or inaction. It seems to also specifically and narrowly connote the action of accounting for spending of public money.

Oversight in the context of the consultants’ report is the monitoring and reviewing function of an organ of state by the legislature. It is a broader concept, and pertains to the oversight of all actions on the part of the executive in particular, and organs of state more generally. It would also pertain to inactions on the part of those structures.

The committee resolved that in the interim it would adopt a broad definition which would encapsulate the essence of the terms oversight and accountability and further agreed that the substantive issues would further enhance this definition at a later stage. Further the committee noted that insufficient work has been done in the consultants’ report to define these concepts adequately and that a cursory study of literature on this topic together with the most recent international developments relating to business practices, reflects a continuous evolution these terms over a period that spans the entire width of the parliamentary era, with the twentieth century producing a practical trend that has evaded much of the previous theoretical discourse. An in-depth analysis of the development of these concepts as used in the general literature would have been more helpful. ("Attachment B" reflects some of the research in this regard compiled by the Honourable Farouk Cassim (IFP).

The consultants’ report under the heading Oversight: the difficult role of Parliament contains the following paragraph:

The committee noted that the principle of separation of powers is a broad concept. The separation of powers brought to bear in our constitutional dispensation is not absolute, and the reasons for these may be many and varied. It was noted that the issue is not whether the principle of separation of powers in our constitutional make-up is strong or weak, but whether or not the fact that the executive is drawn from the legislature weakens the oversight role of the legislature. Put another way, the question is, "Should members of the Executive resign from their seats in Parliament in observance of the Separation of Power doctrine?"

It was pointed out that there is some advantage in members of the executive being drawn from the Legislature. Experience in some countries where Cabinet members were not Members of Parliament revealed some difficulty in securing the attendance of ministers in Parliament. In some of these countries Ministers attended Parliament as little as once or twice a year. This was to a large extent as a result of ministers not being MPs and therefore falling outside the authority of the Speaker. When Ministers are also MP’s a more dynamic interaction between ministers and backbenchers is facilitated, resulting in better communication on vital policy and delivery matters. Furthermore, Ministers are better able to keep abreast of public opinion relayed to them by backbenchers who interact more closely with the electorate.

The committee concluded the following:

1. In our system, the separation of powers between the Judiciary and other organs is more absolute insofar as the judicial function is concerned than between the Executive and the Legislature. This is considered good practice in most democracies. The

 

 

 

 

 

2. interrelationship between the three organs of state should be kept in mind though: that the chief justice presides over the election of the Speaker of the National Assembly, and administers the Oath of Office to the President, deputy President and Premiers. The Chief-Justice and Deputy Chief-Justice are appointed by the President after consulting other role-players.
3. The separation of powers regime that exists in our system in relation to the Executive and Legislature is less absolute in the South African context. This establishes an interface between the Legislature and the Executive, which is necessary to ensure accountability and the effective exercise of oversight. Dynamic interaction between Members of Parliament and members of the Executive is facilitated in a manner that ensures transparency and debate, which in turn enriches government policy and ensures good governance. Further, when the Executive is drawn from the Legislature, the Speaker’s authority is brought to bear over Members of the Cabinet.

The Committee identified the origin of the party based system as being the Westminster system. It noted the concern of the consultants’ that "This (strong party-based system) can hamper effective oversight as members of the legislature may be reluctant to call to account a government that is made up of leaders of their party"(page 9). It was felt that this could not be considered to be a conclusive statement since the same can (and is) applicable in other systems as well e.g. the constituency based system.

The sub-committee agreed that while a less strong party-based system is probably a feature of a totally uninhibited legislature, such as is the case in the USA, our constitutional dispensation provided for a system of checks and balances within the ambit of a strong party-based system. It was further noted that a strong party based system is generally favoured in transitional democracies.

Along with it comes certain advantages such as the accountability of the individual to the collective and the consequent prevention of corruption.

The recent introduction of "crossing of the floor" legislation it was felt would be a significant development in the process of deepening our democracy in this regard.

The Committee noted that oversight is not the domain of the opposition parties alone. By its very nature a legislature has an inherent function to oversee the executive organs of state and hold it accountable. It is a function of the Legislature as a whole and not individual parties. The committee noted with approval the following comment in the consultants’ report:

This Chapter of the consultants’ report deals with the constitutional provisions relating to Oversight in particular with clause 55 (2), which captures the oversight imperative for the National Assembly. The concept of ministerial responsibility is dealt with as a legal and not merely conventional concept. A comparative study is done on the role of the public service in countries like the UK, Canada, and Australia. An explanation is given of the term "other organs of state".

1. The Constitutional Provisions

The committee observed that this chapter does not adequately deal with all of the constitutional provisions relating to oversight. It was felt that in order to appreciate the full import of any single clause relating to oversight it is necessary to develop an understanding of the entire oversight theme in the constitution. There is an inextricable link between the concepts of oversight, accountability, responsiveness (good governance) and openness (transparency) in our constitution.

An audit of the references in the constitution to oversight and accountability would necessarily entail references to clauses such as section 199 (8) which are specific in nature, ie:

There are other clauses, which are less specific, but have profound oversight implications, such as clause 238, which reads as follows:

"An executive organ of state in any sphere of government may-

There are clauses that provide for parliamentary oversight over what previously was considered the exclusive terrain of the executive, i.e. the executive prerogative. An example of this is clause 231, relating to the ratification of international instruments.

The concept of Ministerial Accountability, usually a matter of convention, is in our instance, peculiarly located in the Constitution, and for this reason the above exercise is crucial in any discourse on the matter.

These and other clauses relating to Parliament’s oversight responsibilities would have to be read with the ‘super-entrenched’ clause 1 which captures the essence of the values underpinning our democratic state:

"Clause 1:

The Interim and Final Constitutions

A comparison between the Interim Constitution and the 1996 Constitution would further provide insight into the manner in which issues of oversight had been ‘tweaked’ during the two phases of our constitutional evolution.

The committee was of the opinion that understanding the full landscape of oversight provisions is crucial, in addition, to developing a full appreciation of the spirit and underlying values of the Constitution. It is these values, underpinning the notion of oversight and accountability that the Executive’s action is measured against, as ultimately, the Executive is held responsible to those constitutional values.

In as much as section 55 (2) is an imperative for the National Assembly, it is equally important to assess what the mechanisms are that should be provided by the National Assembly. This should be done inter-alia through comparative studies of mechanisms that exist in other democratic parliaments. In addition

a study of the effectiveness of existing mechanisms as they are applied in our Parliament are required to be conducted in order to enable an assessment of compliance in the fullest sense with section 55 (2). The consultants’ report does not pronounce on whether the existing mechanisms are sufficiently in compliance with the Constitution as a whole or with section 55(2) in particular.

It was pointed out that it has not been Parliament’s approach to regard Section 55(2) as an "obligatory minimum standard". In fact Parliament’s approach has been broader and based on the underlying values of the

constitution, which would be inconsistent with a "minimum standard approach". Oversight mechanisms have been employed with the idea of building a strongly entrenched democratic culture operating within the ambit of

the underlying values and spirit of the Constitution. It is against this that any oversight mechanisms or practices should be tested.

That the establishment of mechanisms within Parliament is of some import is trite, however the sub-committee is of the view that the mere existence of oversight mechanisms will do little to enhance the practice of oversight if there is a lack of appreciation of the role and function of oversight by MPs and the broader South African Community.

As only the second Parliament in our young democracy it is incumbent upon this Parliament to put in place measures that will promote the development of an institution worthy of the vision held by those who coined the phrase "The People’s Parliament". This Parliament has a special responsibility to build a strong foundation upon which a strong and dynamic institution may evolve.

In this regard, the development of a sound understanding of the oversight role of Parliament (and Provincial Legislatures) is critical.

The cultivation of this understanding is vital both within Parliament and without in order for Parliament to develop into a germination chamber for new thought and ideas which together are the fuel that drives our democracy, and fulfils the ideal of a living Constitution.

The sub-committee recommends that:

1. Parliament through the Rules Committee compiles a document "landscaping" the Constitutional provisions relating to the inter-relating themes of Oversight, Accountability, Transparency and Responsiveness, and outlining international trends. Such a document should also include inputs from key Constitutional negotiators either in the form of commissioned research or essays or (preferably) both.
2. Following the tabling of the abovementioned document debates, workshops and discussions should be programmed and organised within Parliament, first amongst MP’s themselves, and then later on expanded to include other stakeholders. These debates and discussions should have as their objective the development of a

 

 

 

 

 

 

3. broad understanding of the Oversight Role and Functions of Parliament within our Constitutional democracy.

The consultants’ report takes a particular view in relation to the oversight role of Parliament in relation to Organs of State:

‘The NA must take steps to see that executive organs of state in the national sphere, those, which are most directly responsible to it, can be held accountable under Section 55(2)(a). Section 55(2)(b), on the other hand, is an attempt to mark out the basic oversight responsibilities of the NA- and the monitoring of the implementation of legislation goes to the heart of the oversight role. In this way the oversight function of the NA in relation to bodies covered in Section 55(2) (b) can be left flexible. The manner in which the oversight function is carried out will vary according to the circumstances. This flexibility is important in ensuring that the NA is not overwhelmed or overburdened by its oversight role. As we point out later in this report, the wording of section 55(2)(b) allows for the NA to take into account the desirability and feasibility of holding all organs of state accountable.’ (page 12)

Section 55(2) of the Constitution of the Republic of South Africa 108 of 1996 reads as follows:

1. to ensure that all executive organs of state in the nations sphere of government are accountable to it; and
2. to maintain oversight of –
1. the exercise of national executive authority, including the implementation of legislation; and
2. any organ of state."

The ad hoc sub-committee was unsure about the interpretation given to section 55(2)(b) by the consultants’. The imperative "must" in the first sentence of the clause applies to both sub-clause (a) and sub-clause (b). It is therefore unclear on what basis the assertion is made that the oversight of organs of state may be "left flexible". In our discussions it was pointed out that the consultants’ when referring to the flexibility of section 55(2)(b) actually meant to confine their comments to section 55(2)(b)(ii). Clearly the imperative ‘must’ also applies to section 55(2)(b)(i), but the flexibility is introduced by the use of the word ‘any’ in section 55(2)(b)(ii). The word "any" in (b)(ii) connotes a degree of choice but Parliament has to ensure that a mechanism is in place to enable the choice to be exercised.

The difficulty seems to be the myriad of bodies that could be covered by the phrase "organ of state". Section 239 of the Constitution reads:

1. any department of state or administration in the national, provincial or local sphere of government; and
2. any other functionary or institution-
1. exercising a power or performing a function in terms of the Constitution or a provincial constitution; or
2. exercising a public power or performing a public function in terms of any legislation.’

It is pointed out in the consultants’ report that the plethora of bodies that may potentially fall within this definition would make it undesirable and unfeasible for the National Assembly to attempt to exercise oversight over all of them on any fixed or regular basis. The committee is of the view that as daunting as the task might be it does not detract from the obligation placed on the National Assembly to ensure that mechanisms are created and are available to comply with the constitutional imperative. While there has not been a concerted attempt to determine exactly how onerous a task the exercise will be, there is room for precisely such an exercise to take place.

The subcommittee is of the view that Parliament has a few options to consider in developing a policy to oversee Organs of State. In this regard two broad approaches may be followed:

• Tracking the path of huge allocations of public money.
• Focusing on issues of National Interest.

The subcommittee recommends that:

1. Parliament commissions an audit of the various bodies exercising public powers or performing public functions and which should in addition clearly delineate which line-function departments are responsible for the various organs of state. Portfolio and select committees within Parliament will consequently assume the necessary oversight responsibility.
2. Parliament through the Joint Rules Committee develops a policy aimed at meeting its constitutional obligations set out in S55(2)(b)(ii)

1. Such policy should consider the necessity for basic legislation

giving effect to section 55(2) on issues of oversight and

accountability, and dealing especially with organs of state directly

accountable to Parliament.

The following extracts are contained in this chapter of the Report:

1. Where the national executive intervenes in a province under section 100(1)(b) the NCOP must approve of and regularly review the intervention;

 

 

 

 

 

 

 

2. Where a provincial executive intervenes in a municipality under section 139(1)(b), the NCOP must approve of and regularly review the intervention;
3. Disputes concerning the administrative capacity of provinces must be resolved by the NCOP under section 125(4);
4. Both houses of Parliament are required to approve of a decision by the treasury to stop the transfer of funds to a province under section 216;
5. Section 146(6) provides that a piece of delegated legislation cannot prevail over another law, whether statute or delegated legislation, unless it has been approved by the NCOP.(page 23)

The committee began its deliberations with an input from the Honourable Mr. Enver Surty, Chief Whip of the National Council of Provinces:

1. The subcommittee noting that the consultants’ report lacks an assessment and evaluation of existing oversight mechanisms in the NCOP, and that this could be rectified by the implementation of the recommendation of the sub-committee made under chapter 3.
2. There is in particular, no reference made in the consultants’ report on the issue of the division of revenue, which is a crucial part of the budget process, and which can be amended by the NCOP. There is no analysis of what role the oversight work of the NCOP plays in the division of revenue outcome, and no analysis of how provinces themselves influence the process.

 

 

 

 

 

 

3. There is further no evaluation of the manner in which the intervention mechanisms have been used, both in local government and in Provinces.
4. The extent to which the NCOP is uniquely poised to give content to section 154 (1) of the Constitution is not dealt with.

1. "The national and provincial governments by legislative and other measures must support and strengthen the capacity of municipalities to manage their own affairs to exercise their powers and to perform their functions."

1. The consultants’ report seems overly concerned with outlining the NCOP’s role in a manner that ensures there is no overlap with, particularly the National Assembly, which is tasked with "overseeing the national executive". The sub committee instead held the view that recognition should primarily be given to the fact that Parliament comprises of two Houses, the National Assembly and the National Council of Provinces. Further, it is trite that areas of convergence arise in matters of concurrent powers. In this regard to restrict the oversight role of the NCOP to policy implementation would be incorrect.
2. While it is conceded that each House has a specific orientation and specific oversight objectives, it would be incorrect to conclude that there are ‘limits’ placed on the NCOP in regard to its oversight role. If that were indeed so, it might very well be argued that because the NCOP is best poised to do oversight work in regard to areas such as Health and Education, in these areas the National Assembly’s oversight role is curtailed in matters of concurrent competencies. In matters of oversight duplication of oversight work does not necessarily translate into duplication of corrective action, and is not necessarily an unhealthy state of affairs.
3. In some senses the nature of the areas of specific focus defy strict categorization. The intervention processes, themselves unique to the NCOP, envisage specific oversight of the National and Provincial governments’ actions (or inactions), that may very well intersect with the oversight roles of the Provincial Legislatures and the National Assembly. In this sense the NCOP’s oversight role is broader than is contended in the approach of the Report. In the exclusive competences

such as safety and security, provinces all have MEC posts, which in turn are subject to oversight of the provincial Legislatures. Neither has the NCOP regarded this exclusively national competence as a limiting factor in regard to their oversight role, the very existence of a select committee on Safety and Security, Correctional Services and Justice is testimony to this fact.

4. A distinction should be drawn between the NCOP’s oversight in terms of both section 139 and 100, in particular its oversight immediately after the executive has intervened and after the intervention. It seems clear that the oversight role of the NCOP during an intervention is of a more intensive and focused nature.
5. Parliament itself requires some co-operative ethic whereby there is not any duplication but in fact a complimentary role, played by each House in regard to the other. The sub-committee was of the view that there be a more formal relationship created between committees in the two Houses so that any oversight work is formally co-ordinated to achieve a complimentary result.
6. The lack of a formal communication structure between committees of the two Houses was noted.

Viewed with the intervention mechanisms and the unique role of the NCOP in this regard, the oversight role pertaining to the capacity building obligations of the two other spheres is inextricably linked.

The sub-committee recommends that:

1. The JRC initiate a process aimed at drafting guidelines for portfolio and select committees to allow inter-alia for joint planning of oversight work.
2. A process should be initiated to establish protocols to ensure structured communication between committees through streamlining of the committee section, which would allow for more effective and formal communication between committees of both Houses that embark on mutual interest oversight work and briefing sessions.

CHAPTER 5

1. Existing procedures and practices for exercising oversight

This Chapter is an attempt at analysing and evaluating existing oversight mechanisms, and practices. An evaluation of written reporting systems as well as oral reports is attempted. The empirical evidence, relied on by the consultants’ to arrive at conclusions, however, has severe restrictions as is apparent from the following extract:

" Among the structural constraints that Parliament faces is the lack of resources to implement and execute effective record –keeping practices; in this case, in addition, the absence of official procedures or structures for handling written submissions contributes to the difficulty. There are also other difficulties in using written reports to gain an understanding of the level of parliamentary oversight activity. There is often no way to tell if a given report was ever presented to a committee, or if it was simply distributed for members to read on their own." (page 26)

2. General Observation

It is apparent form the consultants’ report that Committee Chairpersons were not consulted to elicit their views on some of the proposals in this chapter and the empirical data was not verified. The sub-committee was in agreement that the "reportcard" on committees was to be viewed with circumspection.

The ad-hoc sub-committee therefore discussed issues related to the matters contained in the report with a view to enhancing and expanding the chapter.

3. Omissions

1. The chapter is entitled "Existing Procedures and Practices for

Exercising Oversight", but omits to deal with all of the existing oversight mechanisms or activities in both Houses.

2. Although oversight work is done in plenary, in committees and by

MP’s individually, all of these facets of oversight work are not captured

in the report.

 

 

 

 

 

 

 

 

 

3. The Budget process in any Parliament is an important tool. It is a fundamentally crucial moment in the lifespan of government, which brings the full scope of Parliament’s oversight role to bear on government’s priorities. Parliament does not, currently, effectively participate in the budget process. There is, however, no full evaluation of the current practice in our Parliament, nor a comparative analysis of the budget process in other Parliaments, in this chapter of the consultants’ report".

In this regard, the Honourable Mr. MJ Mahlangu, who has been leading an ANC initiative intended to develop a more appropriate role for Parliament, was invited to brief the subcommittee.

Parliament’s constitutional responsibilities are:

• Passing legislation (sec 43(a) of the constitution Act 108 of 1996)

• Conducting oversight (inter-alia sec 92(2), 55(2) and the PFMA)

• Budgeting (sec (77) )

• Amending the budget

The principles guiding the proposals made to effect reform are essentially:

• The compilation of the budget is essentially an executive function and Parliament should maintain its integrity and ensure that it does not purport in any way to assume any of the functions of the executive

• Like all stakeholders Parliament should develop an influencing role for itself during the compilation process

• Parliament should draw on its oversight experience to inform and influence the budget

• The greater part of Parliament’s influence should be focused on the compilation stage of the budget and amendments to the budget should be affected only in extreme and extraordinary contingencies. Examples of these could be significant incongruency between spending and delivery - where policy and spending priorities do not match or in the event of extreme departmental waste or inefficiencies

The Honourable Mr Mahlangu went on to outline the various stages of the budget cycle and when it was thought most appropriate for Parliament to bring its influence to bear on the compilation of the budget.

On the issue of Intergovernmental Fiscal Relations it was thought that the NCOP should lead the Parliamentary process for policies that impact on Provinces.

In conclusion it was pointed out that in order to begin a reform process to enhance its budgetary role, Parliament would inter-alia have to:

1. Formalise its relationship between the Executive for the purposes of sharing relevant information.
2. Channel its attention toward budget issues and focus on the more effective performance of its oversight functions.
3. Increase its technical capacity congruent with the new tasks taken on through budget reform initiatives.

The subcommittee noting the inextricable link between effective Parliamentary oversight and Parliament’s role in the budget process recommends that:

1. Parliament develop a formal process to enact legislation in terms of S72(2) of the Constitution.

The Consultants’ note with concern:

The ad-hoc sub-committee noted that although adequate record-keeping by committee section was not strictly an oversight mechanism the lack thereof was nonetheless an impediment to the effective assessment of Parliamentary oversight activities of committees.

The subcommittee agreed that there was a problem with the contents of particularly departmental reports to Portfolio Committees. It was agreed that the Public Finance Management Act and the report before the sub-committee from the Public Service Commission entitled "Evaluation of Departments’ Annual Reports as an Accountability Mechanism" would address these shortcomings specifically and that the sub-committee would be better placed to make recommendations once it had finalized discussions on those reports.

The sub-committee noted that new rules introduced in Parliament since the drafting of the consultants’ report established a new tracking mechanism. A briefing was invited from the Secretariat of both Houses on the matter. The Secretariat of the NCOP submitted an apology, and the input by the Secretariat of the National Assembly was prepared by Mr K Hahndiek.

1. All Papers when received are formally tabled, by way of an entry in the ATC and must be referred to the appropriate Committee, and this referral is determined by the Speaker.
2. In some instances the report can be referred to more than one committee. Depending on the subject of a report, the Speaker can instruct the committee to report to the House. In some cases, when there is doubt as to which committee the report should be referred to, the Speaker in consultation with the Chief Whip must decide the issue.

 

3. The ATC will indicate to which committees the particular Paper has been referred and whether a report is required, or whether it is referred for information. In the instance where a committee is not asked to prepare a report, it may nevertheless do so.

 

 

 

 

 

 

 

4. Committees also have power in terms of the Rules to confer with other relevant committees and in some instances the Speaker can also, with the referral, instruct committees to confer if the issue is essentially of interest to more than one committee.
5. All Papers are referred to committees; it is up to the committees to assess all Papers referred to them and to take a decision on which Papers they need to conduct investigations or hearings on, and on which they need to report to the House, and make specific recommendations if they identified problems. A committee may regard a referred Paper as information, and not deliberate on it.

1. Papers are of various natures, for example Annual Reports from Departments, Special Reports from various bodies, Ministerial Regulations, International Agreements, Deployment of Defence Force etc.
2. Papers are tabled normally in both houses [NA & NCOP] except those Papers that are constitutionally specific to the NA and where the NA has a specific Oversight role, for example the Public Service Commission.
3. At present Reports from Chapter 9 institutions are also tabled and referred to the relevant committees, which always includes the Justice Committee. Depending on the subject matter of a report, it is also referred to the Portfolio Committee that deals with that particular subject matter.
4. The practical situation, at the moment, is that the Justice Committee is concerned with the functioning of those institutions and not necessarily the substantive reports by them.

1. It is important for Parliament to develop its oversight role in a more formal and structured manner;
2. It is important for committees of both Houses to develop a common understanding of their oversight role which should include the development of a healthy and conducive relationship with the relevant department and tracking compliance of promises made;
3. In order to be effective, committees have to be adequately resourced and capacitated;
4. A long-term plan is needed to build the oversight capacity of Parliament and develop an institutional memory within Parliament.

The sub-committee recommends that:

1. The Joint Rules Committee develops a policy allowing for more debates on committee oversight reports. These debates should take the form of MPs raising issues of concern based on the reports tabled and Ministers responding to those issues.
2. The Joint Rules Committee begins a process aimed at producing a long term institutional Vision and Mission Statement aimed at building Parliament’s oversight capabilities through adequate resourcing and capacity building in committees, Constituency Offices and within Parliament’s administrative support structures – in particular the Committee section.
3. Parliament adopts a policy requiring each new Parliament to assess and review its oversight capabilities once during its five-year lifespan.

It is suggested that Parliament investigates the possibility of introducing where possible, standardised criteria for reports submitted to Parliament.

Note: The subcommittee hopes to make more considered recommendations in this regard once the report on "Evaluation of Departments’ Annual Reports as an Accountability Mechanism" by the Public Service Commission is considered.

The Report seeks to rank those committees for which empirical data was available in regard to their oversight activities. For reasons of questionable empirical data set out above and the lack of consultations, and the fact that the Chapter failed to identify oversight activities beyond the formal reporting/ briefing activities of committees, the sub-committee was not able to comment on this part of the report.

The subcommittee is of the view that much of the expertise in regard to the exercise of oversight exists within Parliament in the form of committees and committee chairpersons. Given the nature of Parliament it is to be expected that the expertise acquired during the first and second democratic Parliaments will largely be lost over time as a new crop of MPs get elected into their seats. It is therefore crucial to develop an institutional memory and to allow future Parliamentarians to build on this strong foundation.

The subcommittee accordingly recommends that:

The Committee noted that chapter six of the report makes reference to several existing mechanisms for oversight, which includes approval of the budget vote, the power to summons members of the executive and the public to appear before Parliamentary committees, and the weekly Question Time session of the N/A in Plenary.

The subcommittee is of the view that the list of oversight mechanisms is incomplete and that the Chapter does not sufficiently analyse the effectiveness of any of them.

Oversight straddles all walks of parliamentary life. It is done by the individual MP acting in his or her constituency, it is done by a group of MP’s acting in committee, it is done in both Houses in plenary, in terms of relevant rules governing the respective Houses. It informs the substantive law-making function.

The committee listed inter-alia the following oversight mechanisms and activities that the Chapter does not deal with:

1. Constituency Work

2. Briefings, Fact-Finding Visits, and Reports Tabled by Committees

3. Oversight Committees

4. Motions and questions time

5. Debates on Policy

6. Statements by Ministers that are Debated

7. Debates on reports tabled by the Executive

8. Debates on fact-finding reports tabled by Committees

9. Budget process

There was a general view that in light of the lack of evaluation of the existing mechanisms it would be premature to make any recommendations in regard to the establishment of any further oversight mechanisms.

However, despite this reservation, the Ad-hoc sub-committee discussed the various recommendations made in the consultants’ report:

1. to fulfil the NA's constitutional obligations for establishing accountability mechanisms
2. to set broad frame work and minimum requirements for accountability; and
3. to provide an authoritative and mandatory framework within which committee members can perform their oversight task.’ page (42)

The Report proposes that the proposed Act must further provide for the following:

1. Amendatory accountability which is defined as the duty inherent in the concept of accountability, to rectify or make good any shortcoming or mistake that is uncovered.
2. Prescribed standards of administrative accountability the report cites the Public Finance Management Act, which demands financial accountability for a range of listed entities in different forms in its schedule. It is recommended that measures be put in place which set out requirements and guidelines with which written reports must comply. The PFMA introduces the requirement that measurable objectives be set. In addition to (1) compliance audits and (2) the value-for-money management audits which the Auditor- General already performs, the question therefore arises who will audit performance (i.e. who will measure the objectives).The office of the Auditor-General is proposed by the consultants’.

 

Attached hereto is a copy of the briefing marked "Attachment C" which is a briefing taken by the Sub-committee from representatives of the Public Service Commission (PSC) which details work being done by them on a pilot basis which if successful, will specifically address matter performance audits for state departments conducted by an independent body. In this regard the

 

 

 

 

 

development of a structured working relationship between Parliament through its portfolio and select committees and the PSC is envisaged.

3. The report recommends that certain bodies be covered by the proposed Act in particular government departments, the administration and those bodies covered in schedules 2 and 3 of the PFMA.
4. Further the report recommends that instead of having the minister accounting to Parliament, the Act must also recognise that ministers and officials can be called to account.

It is unclear on what basis the consultants’ suggest that officials are presently not called to account to Parliament. It is an accepted and ongoing practice in Parliament to engage officials on various areas of implementation and the committee found no reason to further debate the matter. Particularly because it was pointed out that the PFMA seeks to delineate areas of responsibility.

There were two views on the proposed Accountability Standards Act. Both views favoured, in principle, the tabling of such legislation but differ substantially in regard to the motivation for such legislation and the timeframe within which such legislation should be considered.

The view was expressed that the implementation of legislation at this stage is premature and that the effective performance of oversight work by committees particularly, entails more than mere legislative intervention. It spans the terrain of capacity and resource available to committees, as well as programming of oversight work within the general program of parliamentary work. One of the strengths of the oversight role has been its flexible nature and the fact that Parliament has been able to adapt its oversight work to fit the particular oversight contingency. Oversight is a developing practice in our nascent

Parliament particularly now as it shifts gears from legislating to implementation mode. A stringent legislative framework would merely stifle the growth of an oversight culture and would render the institution at the mercy of self- imposed limitations. It is felt that a young Parliament such as ours is unable to plunge headlong into a legislative framework based on the conventions of other Parliaments ours must be a richer and all embracing culture.

If legislation were eventually to be passed, it would be essential that it be done as a "concretising" mechanism that is informed by and meant to codify existing practices and conventions. The comprehensive landscaping of the constitutional provisions together with a development within Parliament of an understanding of its oversight role, as proposed in chapter 3 above, as well as the more involved role of Parliament in the budgetary process, is the true catalyst for the oversight role of Parliament.

The argument that is proposed to the effect that ‘legal-clout’ is required to ensure compliance particularly in the realm of amendatory accountability is questioned on the basis that unlike other constitutional democracies, the oversight role of Parliament and the accountability responsibilities are contained in the constitution.

Amendatory accountability it is proposed is already the essence of the oversight work currently being performed by Parliament. It is difficult to imagine on what bases the duty to account can be effectively performed without it. Where Parliament is unable to persuade corrective action it is constitutionally empowered to pass laws requiring such action.

It is implied in the proposal to enact an "Accountability Standards Act" that the Executive would be bound to comply with its specific provisions or face judicial sanctions. In this regard, it is argued that given our constitutional design, it is undesirable for Parliament to rely on the courts to enforce its own constitutional powers. The doctrine of the separation of powers is a cornerstone of our constitutional architecture. It is improper for the judiciary to enforce the powers of the Legislature except under the most exceptional circumstances.

While it is thought that the proposed Act is pre-mature and that the objective of the law should be to facilitate and aid oversight and accountability activities, Parliament should begin to develop systems that address these issues. An accountability guide should be developed, which outlines such matters as what Parliament requires in reports from accountable institutions, the procedures to follow in reporting to Parliament and also the procedural

procedures to be followed by MP’s when tabling questions or by Chairpersons when having to resort to summonsing individuals to appear before them. This manual will also serve as a guide to bureaucrats and all those who are meant to account to Parliament. Over time Parliament would then be in a position to determine whether or not such provisions may be best housed in legislation

Parliament should begin a formal process of evaluating its oversight activities, and developing a best practice guideline for MP’s and Committees, with the intention of constantly developing and refining such a manual.

The alternate view holds that the PFMA has created a clear framework for financial management, transparency and accountability in government departments, public entities and constitutional institutions. It will greatly assist Parliament in holding government departments to account and exercising oversight of public entities and constitutional institutions. No comparable instrument exists in regard to policy and government programmes.

The PFMA assumes:". that the political head of a department (Cabinet Minister or a provincial MEC) is responsible for policy matters and outcomes; this includes seeking Parliamentary (or provincial legislature) approval and adoption of the department’s budget vote. The head official (Director-General or provincial head of department) is responsible for outputs and implementation, and is responsible to Parliament or the legislatures for the management of the implementation of that budget." (Explanatory memorandum to the PFMA.)

The PFMA deals with some non-financial service-delivery matters for instance as from 2003/2004, predetermined measurable objectives have to be set for each programme within the departmental vote. This will assist MPs in holding the executive to account.

However, the relationship between Ministers and D-Gs needs to be formalised and responsibility allocated. A set of principles covering the accountability of senior civil servants and Ministers should be enshrined in law. MPs need a clear and mandatory framework within which Ministers, as political heads making policy, tabling laws and setting programmes, must account to

Parliament. This includes the question how amendatory accountability is to be imposed to enforce redress of demonstrated defects, and in which circumstances or on which criteria.

The relationship between and relative responsibilities of Ministers and head officials is more complicated than the PFMA assumes. In our system, as the consultants’ point out, it is true to say that high-ranking public servants are not merely implementers but also play an important role in advising their Ministers and formulating policy with them or for them.

In addition, Directors-General are now appointed by the President. In practice, it is they who appear before portfolio committees, yet in terms of convention and the PFMA they are only responsible for outputs, not policy and "outcomes". The consultants’’ proposal is that matters like these should be resolved in a law. That is clearly the most desirable route.

A new twin act complementing the PFMA would firstly, like that act, spell out what is expected of the executive and administration and, secondly, give parliament clarity on the standards against which policy and outcomes must be monitored.

That Parliament adopts the recommendation as proposed by the consultants’ that an Accountability Standards Act be enacted.

The committee deferred its discussions on the issue of uniform standards of reporting until it concludes discussion of the Public Service Commissions report on the same topic

The following proposals were made in the consultants’ report for committees of Parliament:

2. "Beefing up the existing parliamentary research capacity to undertake management and programme audits;

and Increasing the duties of the Auditor-General's Office. (page 47)

The ad-hoc committee regards the matter of capacity and resources to committees as vital to the effective performance of oversight by committees. A comparative study of other Parliaments in this regard would have been useful. Such a study must be conducted with a view to building Parliaments capacity generally, and committee’s resources specifically, over a period of time.

The committee disagrees with the recommendation that the Auditor-General perform oversight for Parliament since his/her priorities differs from that of Parliament. The role of the Auditor General is ingrained in the constitution and is specific in nature. The inter-action with Parliament is essentially through the Committee on Public Accounts, there seems little justification in the Report to change this.

However, it was agreed that there is a great need to acquire independently gathered information in order to ensure effective oversight. At present, apart from public hearings which are primarily held during the law-making phase and apart from information gathered during oversight visits, committees rely on information elicited from departments themselves.

It is considered imperative that Parliament begins to develop such a capacity of its own. It is acknowledged that this may entail long term planning but in the interim Parliament should devise effective links with bodies engaged in oversight work of their own. In this regard, developing links with many institutions supporting democracy is considered important.

The Report deals with the role of the Chapter 9 institutions in relation to their constitutionally guaranteed independence.

The Report argues that the Chapter 9 institutions have two roles in relation to Parliament.

The Report argues that the independence of the Chapter 9 Institutions is vital for the following reasons:

The issue of financial independence is dealt with in terms of the judgement given in the New National Party of South Africa v Government of the Republic of South Africa 1999 (5)BCLR 489 (CC):

The report suggests that the nature of the interaction between the Chapter 9 institutions and the various committees in Parliament is unsatisfactory as

The Report recommends that legislation be drafted to outline the accountability and independence of the Chapter 9 institutions. Further, the Act should provide for: