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AGE OF UNACCOUNTABILITY OP-ED

ANC’s continued support of Speaker Nosiviwe Mapisa-Nqakula signals it is not serious about stopping corruption

ANC’s continued support of Speaker Nosiviwe Mapisa-Nqakula signals it is not serious about stopping corruption
Speaker of the National Assembly Nosiviwe Mapisa-Nqakula. (Photo: Ziyaad Douglas / Gallo Images)

Whether Nosiviwe Mapisa-Nqakula remains Speaker of the National Assembly is not a legal matter. Neither is it a matter of the application of the ANC’s step-aside rule, as that rule applies to stepping aside from party activities. As with all the previous ANC decisions to replace the Speaker, this is a purely political decision that the ANC caucus is entitled to make.

The position of the Speaker of the National Assembly, Nosiviwe Mapisa-Nqakula, who faces arrest for allegedly soliciting cash bribes while she was minister of defence to secure contracts with the SA National Defence Force, has become untenable. She is, however, unlikely to resign in the near future, not least because she continues to enjoy political support from the ANC.

In response to her imminent arrest, Mapisa-Nqakula purported to take “special leave” as Speaker and launched an urgent court bid to interdict her arrest and to force the National Prosecuting Authority (NPA) to provide her with “the entire state brief”, including the entire police docket and “the entire investigation, including the investigation diary or logbook, all witness statements and all real evidence forming part of the investigation”.

Mapisa-Nqakula’s application seems to be premised on the false assumption that she is entitled to special treatment and that it would be outrageous to arrest her because she is a senior ANC leader and (as an afterthought) also the Speaker. 

This is as depressing as it is predictable. While senior ANC leaders, as well as other famous or wealthy individuals (Markus Jooste, Jacob Zuma and Kelly Khumalo come to mind), have in the past enjoyed special treatment from the Hawks and the NPA, this is not normal or acceptable. In law, Mapisa-Nqakula does not have more rights as a criminal suspect than, say, Thabo Bester, Nandipha Magudumana or the accused in the Senzo Meyiwa trial.

While the Speaker is entitled to fair treatment by the NPA, and while it is not inconceivable — given the recent history of bumbling by the NPA in high-profile cases and despite the lack of evidence to that effect so far — that the NPA may have made mistakes in this case, she is not entitled to dictate to the NPA how she should be brought before a court. 

Her rights as a criminally implicated, soon-to-be criminally accused person (including her right to be presumed innocent by the presiding judge who conducts the trial) should be respected. But she enjoys these rights as a criminal suspect and accused, which means they do not apply to her in her capacity as Speaker and cannot be invoked to protect her political position as Speaker. As Speaker, she can be judged politically and there is no bar against removing her as Speaker, as this is entirely separate from the anticipated court processes.

Read more in Daily Maverick: Mapisa-Nqakula files court papers to interdict possible arrest

This is why the remarks made on Saturday by President Cyril Ramaphosa about her possible removal are self-evidently misleading and disingenuous. Asked about the Speaker’s removal, Ramaphosa urged the public “to allow party processes to unfold”, pointing out that Mapisa-Nqakula had not yet been charged.

“There’s a process that’s unfolding,” he said. “We have processes, geared and independent institutions and in the end, we must rely on those institutions to do their work.”

This comment presents what is essentially a political decision (whether it is politically — and as a matter of principle — tenable for Mapisa-Nqakula to remain as Speaker despite being implicated in serious criminal acts) as a purely legal issue or as an issue of ANC factional politics. This is not surprising, given the fact that the ANC’s step-aside rule has formalised the party’s political decision to cede its moral compass to the NPA, and thus not to act against party leaders who bring the ANC into disrepute unless they are formally charged with a criminal offence. 

A matter of political choice

The Speaker is a politician elected by fellow members of the National Assembly as Speaker, not an ordinary employee. Her removal is not guided by the ANC’s constitution or internal ANC politics, but by the South African Constitution. As she can be removed from office by a vote of no confidence by the National Assembly, she retains her position only if a majority of MPs (practically speaking, at the moment this means the ANC caucus) retain confidence in her Speakership.

Whether she continues to enjoy this confidence is not a legal matter. Neither is it a matter of the application of the ANC’s step-aside rule, as that rule applies to stepping aside from party activities. As with all the previous ANC decisions to replace the Speaker, this is a purely political decision that the ANC caucus is entitled to make. (Realistically, this means the President in consultation with other senior leaders of the ANC will have to make the decision — something Ramaphosa has now signalled he will not do — demonstrating yet again how reluctant the ANC is to act against members credibly implicated in corruption.)

It is a matter of political choice, based on the values and principles of the parties represented in the National Assembly. For example, a party that continues to express confidence in a Speaker, say, implicated in racism, or who supports the Israeli genocide in Gaza, or suggests that women wearing short skirts deserve being raped, would be making a political choice which — hopefully — will be harshly judged by voters. A party leader who justifies this inaction by muttering that internal processes must first be followed should not get away with this attempt to turn a political decision into a legal or procedural one.

The same holds true for a party that continues to support a Speaker credibly implicated in serious corruption, as it would signal to voters that it is not serious about rooting out corruption in its midst. A party that hides behind “processes” and “procedures” to justify not taking a political decision to act against individuals implicated in corruption should be judged accordingly.

This is not the end of the matter.

‘Special leave’

To retain her Speakership (and the generous salary that goes with it) Mapisa-Nqakula announced late last week that she was taking “special leave”, despite the fact that neither the Constitution nor the rules of the National Assembly provide for the Speaker taking special leave.

It is true that the rules of the National Assembly do allow individual MPs to take a leave of absence. However, it is not clear that these rules apply to the office of the Speaker. In any event, in terms of rule 36, such a leave of absence (for more than 15 consecutive sittings of the National Assembly) requires approval by the members of the National Assembly.

National Assembly rule 35 states that the attendance of MPs at official parliamentary business is ordinarily regulated by the political parties. However, rule 36 states that “the period for which leave may be granted to a member by the member’s party, other than maternity leave and parental/adoption leave as provided for in the approved attendance policy, may not exceed 15 consecutive sitting days in a session”.

Rule 36 also provides that a member may request permission to be absent for more than 15 consecutive sitting days, which the National Assembly can either approve or reject. However, rule 37 states that an MP who “absents himself or herself for 15 or more consecutive sitting days of the Assembly without authorisation … loses his or her membership of the National Assembly in accordance with Section 47(3)(b) of the Constitution.”

I am, however, doubtful that these rules apply to the office of the Speaker as Speaker. The Speaker wears two hats. First, she is an MP subject to the ordinary rules applicable to other MPs where this is not in conflict with her role as Speaker. Second, she serves as a constitutional office-bearer — Speaker — accountable to members of the National Assembly and dependent on their continued confidence to serve in this role. 

As I read the rules, the Speaker could retain her job as an MP, by occasionally attending sittings of the Assembly to ensure she is not absent for more than 15 sittings, but she cannot retain her job as Speaker as she would have been absent as Speaker for more than 15 sittings. 

While the rules are silent on this, the rules could arguably be read to apply mutatis mutandis to the Speaker serving as Speaker. In other words, the rules could be interpreted to state that the Speaker is not permitted to be absent from her job as Speaker for more than 15 consecutive sittings. Whether this is the case is at best unclear as it does not resolve the problem that will arise if the Speaker is absent as Speaker for more than 15 sessions, but attends the National Assembly as an MP during this time.

In any event, all this speculation should have been unnecessary. A Speaker who took the best interest of Parliament and of our democracy seriously would long since have resigned to protect the institution from the fallout. A governing party that did the same would have requested her to resign if she had not done so herself.

Hopefully, come 29 May, voters will judge the ANC harshly for this failure. DM

Gallery

Comments - Please in order to comment.

  • Kevin Venter says:

    “Hopefully, come 29 May, voters will judge the ANC harshly for this failure” – Nope.
    As long as the ANC successfully sells the notion that the social grants will stop unless those on the grants keep voting for the ANC. When your country is turned into a welfare state, with tax payers money being used to effectively “buy” votes, how can you expect any change. As for the ANC getting tough on corruption…. what is corruption again, oh yes, “A Western thing”.
    Here is a western analogy: The band plays on while the Titanic (South African Economy) sinks. The corrupt band of merry men and women who are sinking the very ship (Economy) then escape on their safety boats (ill gotten gains through corrupt means) to safety (other countries) leaving the rest (Citizens left behind) to drown.

  • NICK GREENE says:

    The ANC’s moral compass and a ceiling fan – one in same thing.
    The past leaders who fought for democracy must be turning in their graves

    • Malcolm McManus says:

      The past leaders who fought for democracy, didn’t fight to be poor. Democracy was just a tool to use to achieve power. It never really meant anything for them other than a means to get into power and loot freely. It wasn’t ever about the nation. It was all about the enrichment of the freedom fighters, the elite few. Nothing more, nothing less. They are certainly not turning in their graves.

      • Random Comment says:

        Your analysis is 100% correct, Malcolm – that much is supported by our history post-1994.

        • Kanu Sukha says:

          And … not a word about the preceding history of pre-1994 ? How convenient ! Sorry … I forgot you didn’t vote for it … and that absolves you from all implications ! Like the pseudonym ‘random comment’ .

          • Steve Davidson says:

            For sure. It was absolutely criminal that the trains, ports, roads, airports and SAA ran all the time, the public hospitals (eg Baragwanath) ran exceptionally well and so on and so on. Get real. We’re talking about CORRUPTION here, the one thing the ANC are actually good at.

      • Gerrie Pretorius says:

        I agree 100% with your statement of fact Malcolm.

        • Arved von Oettingen says:

          Turning in their graves they might well be, but more from the thought of missing out on all the Loot, than the shame of what those that come after them are doing. Why would the predecessors have been any different? That’s an illusion… Its in the genes.

  • Barry Taylor says:

    The anc has never and will never be serious about corruption and will lie as far as they can top protect each other as all know to much of teh other person thus cannot afford to suspend teh person
    Is it not the same as the lies you spread re the kiddies photos that were on your computer denying that you knew where they came from of which you have never come clean

    • Bick Nee says:

      Huh? That’s a bit of a weird and sick analogy.

      • The Stoic, Cynic and Epicurean says:

        Agree with you Bick Nee. BT: Stay with the script and not insert side issues here. I’m sure you learned a few things from Pierre’s article. Your few words contains nothing knew. As much as I would learn from articles, I would expect to learn something from those who comment as well. Share some of a few of your unfounded skeletons in your cupboard and see if it changes the invective of other readers. Maintain context and perspective, please.

  • Sydney Kaye says:

    “….who supports the Israeli genocide in Gaza”. Is that your legal description of what is going on there, or you have arrived it through a political process.

    • J vN says:

      Peertjies loves to post these nonsensical, rambling articles that pretend to be legal opinions. As prof Koos Malan devastatingly pointed out, a true legal opinion is one founded on law, done with proper research and devoid of bias and emotion. What Peertjies posts, is none of these things. No wonder standards at SA universities are collapsing, if this quasi-academic is the best they have to offer.

    • The Stoic, Cynic and Epicurean says:

      I’m not sure I understand your comment. Pierre used these words in an example of two scenarios of possibly holding a (not ‘the’) Speaker to account. No comment about “…the women wearing short skirts deserve to be raped…”? You digress from the article’s intent. But you raise a very current subject – genocide. Maybe DM (or Pierre) should initiate this as a separate discussion point as the definition by countries, perpetrators and their allies keeps changing when they are the accused. The Geneva Convention on this matter keeps on being re-interpreted depending on who the culprits are, but very easily applied to the letter when the enemies in all its forms conduct ‘atrocities’ – and let’s not forget what happened in Africa and South America where governments and ‘rebels’ supported by the west conducted similar deeds, yet ignored by the west. Hypocrisy is rife in the ‘global order’ when ‘international law’ is discarded or beneficially interpreted by the same allies who wrote these now ‘toothless’ laws post-WWII. Then also the veto power by a few to control the UN resolutions…it makes the UN farcical…

      • Kanu Sukha says:

        Very perceptive observation … and note the concerted and sinister efforts of a few (US and Israel in particular) to make the UN ‘irrelevant’ … the former having been instrumental in founding it. But now that the USs ‘pariah’ status in that body has been exposed … it is hubristically (Beinart) doing everything it can to undermine its relevance .

      • Kanu Sukha says:

        Very perceptive observation … and note the concerted and sinister efforts of a few (US and Israel in particular) to make the UN ‘irrelevant’ … the former having been instrumental in founding it. But now that the USs ‘pariah’ status in that body has been exposed … it is hubristically (Beinart) doing everything it can to undermine its relevance .

  • Peter Dexter says:

    Firstly the Speaker of the NA should in my opinion be independent of any party, someone above party politics like a retired judge. That is not the case and the ANC cadres point out that all are innocent until proven guilty, but ethics is a standard higher than that required by the law, and the concept of morality, integrity, and ethics is where the ANC fails dismally. She should resign because it is the right thing to do.

  • Beyond Fedup says:

    She is a plain civil servant, paid us us, the taxpayer!! Nothing more, nothing less! She has the same rights as any other SA citizen – she is not special or entitled like she thinks! Only the anc doesn’t understand this (rather willfully ignores it) and protects its own whilst lying to the nation that it is fighting corruption. They are masters of theft, corruption and criminality!

    • Michael Britton says:

      Five exclamation marks in five sentences makes you sound like an hysterical drama queen. One school of Journalism told students they have only one exclamation mark for their entire career, so use it wisely. Ernest Hemingway only used one exclamation mark in all of his published books.
      Just imagine, there are now five journalists out there who no longer have an exclamation mark because you used them all up.
      So, Beyond Fedup, you cheapen their meaning by using so many. And there was nothing new or exciting in your comments.
      I, for one, will skip your posts in future. No humour, no insights, no analysis.

      • Roger Sheppard says:

        The ball you are playing is on another fairway MB. Stick with the topic please. It’s about the Speaker – should she resign, be found weak before a Vote of No-Confidence, or bluntly charged for malfeasance a few years ago. The grammar will follow.
        I think she looks long and deeply into a clear reflecting pool, and then notices herself…only…again! [Oops, another one bites the dust..exclamation marks, that is!].

  • Rae Earl says:

    Assuming she did receive bribery payments, a simple forensic investigation into her bank accounts and spending patterns during and after her tenure as defence minister should reveal guilt. If the lifestyle audits (still dithering on Ramaphosa’s list of things to do) were implemented, most ANC ministers would be heading for the hills.

  • Geoff Coles says:

    What genocide in Gaza?…. a misrepresentation at this stage and you know it Pierre

  • Martin Nicol says:

    Yes butYes, but why is the back-story not given more prominence? The allegations are old and Ms Mapisa-Nqakula, denied them three years ago. Parliament was told on 27 May 2021 that “the Minister had denied all the allegations of the whistle blowers”. This followed allegations made in Parliament “of receiving kickbacks and mismanagement of resources made against the Minister of Defence and Military Veterans [Ms Nosiviwe Mapisa-Nqakula, MP]. “[I]t was alleged that the Minister had received wads of cash and gifts totalling R5 million from a South African National Defence Force (SANDF) contractor between 2017 and 2019. This was included in a letter from General Holomisa.” At the time, the Joint Standing Committee on Defense considered a legal opinion by the Parliamentary Legal Adviser on the competency of the Committee to deal with these allegations. Ultimately the proposed investigation faltered when “All efforts to get information from the whistle blower had proved futile. Members concluded that the whistle blower’s claim was not genuine, and decided to drop the matter [on 02 September 2021 “Report on investigation into alleged corruption against former DoD Minister”]. However, the case could be resuscitated if there was serious evidence that could stand scrutiny in a court of law.” It was in the face of these corruption allegations that a special sitting of the National Assembly (NA) had already elected Ms Nosiviwe Noluthando Mapisa-Nqakula as new Speaker of the House on Thursday 19 August 2021. The documents to see are on the Parliamentary Monitoring Group website:
    PMG record of meeting Joint Standing Committee on Defense on 27 and 13 May 2021; 2 September 2021.

  • Martin Nicol says:

    Yes butYes, but why is the back-story not given more prominence? The allegations are old and Ms Mapisa-Nqakula, denied them three years ago. Parliament was told on 27 May 2021 that “the Minister had denied all the allegations of the whistle blowers”. This followed allegations made in Parliament “of receiving kickbacks and mismanagement of resources made against the Minister of Defence and Military Veterans [Ms Nosiviwe Mapisa-Nqakula, MP]. “[I]t was alleged that the Minister had received wads of cash and gifts totalling R5 million from a South African National Defence Force (SANDF) contractor between 2017 and 2019. This was included in a letter from General Holomisa.” At the time, the Joint Standing Committee on Defense considered a legal opinion by the Parliamentary Legal Adviser on the competency of the Committee to deal with these allegations. Ultimately the proposed investigation faltered when “All efforts to get information from the whistle blower had proved futile. Members concluded that the whistle blower’s claim was not genuine, and decided to drop the matter [on 02 September 2021 “Report on investigation into alleged corruption against former DoD Minister”]. However, the case could be resuscitated if there was serious evidence that could stand scrutiny in a court of law.” It was in the face of these corruption allegations that a special sitting of the National Assembly (NA) had already elected Ms Nosiviwe Noluthando Mapisa-Nqakula as new Speaker of the House on Thursday 19 August 2021. The documents to see are on the Parliamentary Monitoring Group website:
    PMG record of meeting Joint Standing Committee on Defense on 27 and 13 May 2021; 2 September 2021.

    • Arved von Oettingen says:

      Since when do criminal investigations rise and fall on Whisleblower’s information? Surely their information only serves as a lead for professional investigators to take the matter further?….and why was this not done in 2019?

    • Roger Sheppard says:

      “All efforts to get information from the whistle blower had proved futile”…where is he/she now? Under what circumstances has he/she now been living, and where? Is he/she still actually alive, in 2024?

  • Bob Fraser says:

    Bob F March 25th 2024 at 10:37
    The speaker should have been suspended immediately without pay until such time as all of the investigations are complete and any
    legal action has taken it’s course.
    The president though is too
    frightened that should he go against
    the orders of the ANC not only will he be out of work but he may loose some of the privileges he now enjoys

  • Les Thorpe says:

    And here am I under the impression that RamaPromises was “fighting corruption on all fronts”.

  • Matthew Quinton says:

    And in other news, air contains oxygen!

    C’mon Pierre, this is NOT a news article.. Yes you termed it as an “op ed” and thanks for giving is your opinion… Really earth shattering stuff this, the possibility that the ANC is not serious about fighting corruption?!?!

    Wow!! I mean what educated South African could possibly think that after the last 30 years… I mean your opinion is really pushing the boundaries!

    So… sarcasm aside. Instead of penning a article of obviousness, let’s do some journalism and use your platform to either reveal something new, or report on one of the amazing things happening in other parts of the world… y’know.. actual NEWS!

    ….”In any event, all this speculation should have been unnecessary”…

    It was unnecessary. Every educated person in South Africa, whether local, visiting briefly or just living here knows that the ANC is a useless criminal organisation which exists to steal tax ONLY.

  • Les Thorpe says:

    NM-N needn’t be concerned. Any charges brought against her and subsequent arrest (meaningless in S.A.), will result in bail, where after she will be free for the next twenty or more years as the legal system will entitle her to multiple appeals, interdicts, ConCourt applications, rescission applications, changes of legal team(s), prosecutor/judge recusal applications, political conspiracy motivations, trials within trials, in addition to a whole host of other “loopholes”. Thereafter it’s the probability of early parole for medical reasons.

  • Middle aged Mike says:

    “ANC’s continued support of Speaker Nosiviwe Mapisa-Nqakula signals it is not serious about stopping corruption”

    Ja, there have been one or two signals before. Sadly delusional new dawn enthusiasts and admirers of the glorious liberation movement don’t receive transmissions on that frequency.

  • Jay Vyas says:

    Is this “The Wig”‘that the Hawks took during the Raid?
    Are those the same Spectacles that both Mbalula & Mokhonyane wear as “ANC Intellectual Regalia”?
    I Rest My Case!

  • Grenville Wilson says:

    I’m not going to hold my breath while awaiting a positive outcome in the fight against corruption on this one! The best case scenario is probably, the lady goes to court and the NPA lose! Methinks

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