On behalf of the Ad Hoc Committee, you requested procedural advice on a number of issues relating to a request that the Ad Hoc Committee consider a way forward on the allegations of interference in the Arms Deal Report.

2. Background: Mandate and short-term tenure of Ad Hoc Committee

(1) The Ad Hoc Committee was established by House resolution on 19 October 2004 with the specific mandate of considering and reporting to the House on the AG's report for 2003 - 2004; it was further mandated to engage with the Office of the Auditor-General on the AG's budget.

(2) The Ad Hoc Committee was given these tasks "pending the establishment of the Parliamentary committee to be established in terms of the Public Audit Bill".

(3) The Ad Hoc Committee was required to report to the House "on conclusion of its business before 19 November 2004", ie the last sitting day for 2004.

(4) At that stage the Ad Hoc Committee was therefore intended to complete its task and cease to exist (NA Rule 214(6)) by 19 November.

5) On 11 November the House by resolution extended the Ad Hoc Committee's mandate for it also "to maintain oversight over the Auditor-General and for that purpose to continue with its functions until the oversight mechanism envisaged in the Public Audit Bill is established'.

3 Context of establishment and mandate of Ad Hoc Committee

The establishment and mandate of the Ad Hoc Committee needs to be understood in the following context:

(1) The Audit Commission established by the Audit Arrangements Act, 1992, ceased to be operational as from the date on which Parliament assembled for the first time after the general election (23 April 2004).

(2) The Audit Commission was not reconstituted in the Third Parliament, but the Public Audit Bill which had reached an advanced stage in the Second Parliament but had lapsed at dissolution, was revived on 18 June 2004.

(3) The Bill was passed by the NCOP as the second House on 19 October, and assented to and signed by the President on 14 December 2004.

(4) As a consequence, the functions required to be performed by the Audit Commission could not be performed after 23 April 2004. Those functions oversight-related, were broadly administrative and concerned the functioning of the office of the Auditor-General. They involved engaging with the AG on conditions of service; determination of audit costs; considering the AG's report; the AG's budget; appointment of a Deputy AG; etc.

(5) The absence of the Audit Commission and of any replacement mechanism created practical operational problems for the AG.

(6 It was in an attempt at least partially to overcome those problems, as I understand it, that the decision was taken to set up the Ad Hoc Committee as a bridging mechanism. And it is in that context, I believe, that the Ad Hoc Committee's mandate should be interpreted.

(7) Although the Public Audit Act, 2004, has now come into effect (14 December 2004), the Assembly has not yet established the oversight mechanism envisaged in Sec 1 0(3) of the Act, but can indeed be expected to do so in the near future in order to comply with the Act.

(8) Incidentally, while the Audit Commission was in existence, within Parliament the PC on Finance would have been the forum that conducted oversight over the Office of the AG. With the House resolution appointing the Ad Hoc Committee and mandating it to "maintain oversight over the Auditor-General", it must be assumed that the PC on Finance relinquished that role, at least in the interim.

4. Apropriateness of Ad Hoc Committee to consider allegations

1. If the purpose of the Ad Hoc Committee was to provide a temporary bridging mechanism in the absence of the Audit Commission, as outlined above, and its mandate is interpreted in that context, the Ad Hoc Committee itself would not appear to be the appropriate forum to enquire into the substance of the allegations as reported in the media.

(2) Nevertheless, it clearly has an interest in the matter and in my view it would not be inappropriate for it to consider how the matter could best be taken forward within Parliament and to present proposals in that regard.

5.Meaning of Ad Hoc Committee's oversight mandate

(1) The question is posed whether the Ad Hoc Committee should align its oversight role with the responsibilities assigned to the proposed oversight mechanism envisaged in the Public Audit Act or whether it should develop its own view of its role.

(2) In my view the Ad Hoc Committee should interpret its oversight mandate in the context of the purpose for which it was established and its ad hoc status as a bridging mechanism to overcome practical problems experienced by the Office of the Auditor-General in the absence of both the Audit Commission and the oversight mechanism envisaged in the Act.

(3) The mandate to "maintain oversight" in that context is sufficiently flexible to enable the Ad Hoc Committee to engage with the AG on any related issues that may arise, including specifically any related issues on which the AG may wish to consult.

(4) I note that the envisaged oversight mechanism in the Act is assigned many of the functions previously performed by the Audit Commission. I refer to Sections 7, 13, 23, 31, 38, 39, 40 and 41 of the Act.

(5) When the Assembly establishes the oversight mechanism, which would be done in the Rules, it would need to provide clarity as to that mechanism's powers and functions. Those issues are, I believe, currently under consideration politically, and may be linked to the broader investigation being undertaken by the Oversight Task Team into the nature of the relations between Parliament and the independent Chapter 9 institutions (with reference in particular to Sec 181(4) and (5) of the Constitution regarding their independent status).

(6) 'There is no indication that the Ac Hoc Committee, as established, was expected to perform all the functions that the oversight mechanism will be required to perform in terms of the Public Audit Act.

6. Which Committee should deal with matters of substance in media allegations

(1) As suggested above, the Ad Hoc Committee would not appear to be the appropriate Committee to enquire into the substance of the allegations.

(2) The nature and extent of the oversight mechanism's functions are yet to be determined and may be informed by further consideration of the nature of relations between Parliament and the independent Chapter 9 institutions.

(3) Scopa - during the Second Parliament - considered and reported to the House on the final JIT report, and subsequently on the AG's special report regarding allegations of improper editing of that report.

(4) Scopa is indeed in Rule 206(1)(a)(iii) mandated to consider "any reports issued by the Auditor-General on the affairs of any executive organ of state...." Further, in terms of Rule 206(1 )(c) it "may initiate any investigation in its area of competence". That "area of competence" is financial oversight or supervision.

(5) The substance of the allegations relates to the content of a report submitted to Parliament by the AG. Scopa is tasked with considering the substance of the AG's reports; but not with maintaining oversight over the AG.

(6) By comparison, compare with the position of the Public Protector: The PC on Justice currently oversees the functioning of that office, but a report of the Public Protector on a particular subject is referred to the PC which is responsible for that subject.

(7) In my opinion, therefore, Scopa has the necessary mandate for it to enquire into whether the Arms Deal Report as submitted to Parliament was complete and accurate and to seek an explanation if that was not the case.

8) However, neither Scopa nor any other committee is in a position currently to discuss or enquire into those aspects of the allegations that relate to the integrity of the Auditor-General. It would require a substantive motion adopted by the Assembly in terms of Rule 66 for any committee to be authorised to conduct such an investigation.

7. Committee's power of conferral

(1) In terms of Sec 57(2)(a) read with Rule 139 all Assembly committees, regardless of whether they are established by Statute or not, have the power to confer with any other Assembly committee.

(2) The basis of such conferral in a particular case would be determined by mutual arrangement in terms of the general power of committees to determine their own procedure (Rule 138(e)).

(3) Committees can also be instructed to confer by the House (Rule 139(2)).

(4) If Scopa were to initiate any enquiry within its mandate with reference to the allegations, the Ad Hoc Committee could by virtue of its interest in the matter approach Scopa to arrange conferral.

8 .Application of Rule 66

(1) This has been dealt with in par 6(8) above.

(2) Concerning the application of the Rule, Speaker Ginwala made a statement to the House on 24 February 2004, which was published in the Minutes. A copy is attached for information.

(3) An enquiry into the substance of the allegations by any committee could therefore not extend to issues relating to the integrity of the AG unless expressly authorised by the House.