My case against the Parliamentary Budget Office

It is now (as of this week) a matter of public record that I am pursuing a public interest-related labour law case against the Parliamentary Budget Office. The arbitration hearing at the Commission for Conciliation, Mediation and Arbitration (CCMA) began, in fact, on the 19th of September. Unfortunately, no media were present to hear the beginning of the case. That included my introductory statements and extensive arguments on the legislated independence of the Parliamentary Budget Office (PBO) from the Parliament administration, as well as the labour law and public interest aspects of the case (first day), and my testimony under oath (second day).

The matter then continued for a further two days on the 14th and 15th November. This began with my cross-examination by the PBO’s representative, and then continued with my calling of witnesses.

As I indicated in the hearing, I expected that the witnesses I called would be hostile but was guided by a CCMA award in which the commissioner noted that a party cannot fail to subpoena a relevant witness merely because they expect the witness to be hostile “as this can only be determined when the witness is giving testimony”. Unfortunately, despite the apparently hostile statements by witnesses referred to in various of the articles below, not one of the witnesses was declared hostile and I was therefore unable to cross-examine them.

I will refrain from commenting on the substantive details of the case at this stage, though I will certainly do so at some point after it is completed. For now I would just note a few interesting snippets from the articles produced by the Media24 journalist in attendance. (There are some important legal points that were not reported, and some errors in the articles, but I will not comment on those either at this stage).

1. Note on media access at the CCMA

Media24 requested access to the hearing. Parliament’s representative objected and I argued in favour. I specifically argued that the recent ruling in the KZN High Court allowing media into the Nkandla disciplinary cases indicated the extent to which public interest must inform such decisions. CCMA arbitration hearings must surely be more open than internal disciplinary hearings. As it transpired, the CCMA takes the view that arbitration hearings are open by default unless there are reasons to decide otherwise.

2. Some of the issues

Muller told the commission that while no one had ever approached him to do academic work, others were asked.

Others in the office were favoured because they had helped do political work, including write speeches, which were not part of the office’s mandate.

He accused the unit’s director, Mohammed Jahed, of instructing staff to do such work and even boasting about it. If Jahed denied it, he would be lying under oath, Muller said.

3. How do emails go missing in an institution like Parliament?

All emails from 2015 had been deleted, she said. This would be because her mailbox was full, she said, as other colleagues could also not find old emails.

She did not know if they were deleted because of Muller’s case, she told CCMA commissioner Madeleine Loyson.

[It was noted in the hearing, however, that Parliament’s email policy states that:

8.5 Storing, archiving and deleting e-mail messages

a) Official email messages must be archived after 30 days of receipt and all other e-mail must be deleted from the inbox/outbox after 24 days of receipt.]

4. What constitutes acceptable assistance to MPs?

Ellse explained that all he had done was give tutelage to some MPs in issues relating to tax and other areas in which he was interested.

He had been asked by the PBO’s director to have a look at questions from Van Rooyen and provide guidance if he had time.

After reading the questions, he said, he had then decided to explain a related concept to Van Rooyen.

5. Is considering the performance of internal candidates unfair when making appointments to senior technical positions in the public service?

Gabier told the commission that including internal candidates’ performance scores would have prejudiced external applicants.

As things stand, the hearing will proceed on the 19th of January 2017. The cross-examination of Ms Gabier will continue, followed by the testimony of the Director of the PBO and his cross-examination.