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When MPs misuse sub judice to avoid exercising their ov...

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When MPs misuse sub judice to avoid exercising their oversight of ministers

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Marianne Merten has written on Parliament since 2016 for Daily Maverick. The intersection of governance, policy and politics unfolds at many levels, from tiny nuggets of information hidden in the voluminous stacks of papers tabled at the national legislature to the odd temper tantrum by a politician. Sometimes frustrating, sometimes baffling, even after 26 years as a hack, there are few dull days in the parliamentary corridors.

That lawyers should have to tell lawmakers what their institutional powers and responsibilities are, is an indictment of MPs.

First published in the Daily Maverick 168 weekly newspaper.

When elected public representatives surrender their constitutional responsibility and power, it’s gobsmacking – especially when absurdities are invoked, such as claiming an issue is sub judice, and that it kicks in when a charge is laid with police.

But that’s what ANC MPs on the parliamentary health committee did to nix scrutiny of the R150-million irregularly awarded to a company, Digital Vibes, involving two close associates of Health Minister Zweli Mkhize.  

“From the ANC point of view, we are of the view this matter, since it is reported before the court of law by the DA… it is sub judice,” said ANC MP Tshilidzi Munyai on 4 June.

Health committee chairperson Sibongiseni Dhlomo had just informed everyone how, during a telephone call the night before, he had accepted Mkhize’s explanation of legal advice for not attending that parliamentary meeting.

“The matter is sub judice,” agreed ANC MP Kenneth Jacobs later. “There will be answers given in the future. The President also stated very clearly he’s awaiting the outcomes of the SIU [Special Investigating Unit] investigation. We must be mindful of the impact it would have if we discuss too many of these issues…”

Usually it’s people appearing before MPs who try to invoke sub judice. Not parliamentarians. In fact, on 23 May 2017, public enterprises committee MPs insisted on answers after then Eskom board chairperson Ben Ngubane claimed sub judice to avoid questions on dodgy dealings at the power utility.

Then, parliamentary legal services told Ngubane that sub judice is not a licence to avoid answering questions from MPs. Unlike in the apartheid years, democratic South Africa’s courts have restricted sub judice to those rare occasions when discussing a case pending before the courts would cause irreparable harm.  

This week Parliament’s legal services repeated this explanation to the health committee – and how sub judice, in any case, does not apply from the moment a case is laid with police: “The sub judice does not operate as a restriction on the National Assembly from fulfilling its constitutional mandate to hold to account and oversee the executive.”

That lawyers should have to tell lawmakers what their institutional powers and responsibilities are, is an indictment of MPs.

As the elected representatives of the public, they must oversee and hold to account the executive, including how ministers and departments spend money. And Rule 167 allows lawmakers to call anyone before committees and request any document.

Public finances malfeasance is not victimless. Diverting money from the national purse directly affects the most vulnerable and their rights to access health, housing, basic services, quality education and more.

It’s not unreasonable to expect lawmakers to pull up their oversight socks, given the testimony on lacklustre parliamentary oversight before the State Capture commission. Or the March 2016 Constitutional Court judgement that the National Assembly acted unlawfully and in a manner “inconsistent with the Constitution” when it absolved then president Jacob Zuma from paying for the security upgrades at his Nkandla homestead, as the Public Protector had ordered.

The 4 June health committee proceedings showed none of the lessons has been learnt.

On 26 May, in a live TV broadcast, Mkhize admitted the Digital Vibes contract was “irregular”, and announced disciplinary hearings and the recovery of money.

Although he didn’t appear before MPs on 4 June, following legal advice, four days later Mkhize briefed journalists in Kimberley. He spoke about the Digital Vibes-sponsored benefits for his family home and funds given to his son, and about special leave and the ANC integrity committee.

There was nothing Mkhize said in Kimberley that he could not have told Parliament. The legal advice had not changed. The minister may have his reasons for not wanting to talk to lawmakers, but MPs have no excuse for letting him ignore them.

This signals an unhealthy deference to the executive and unwillingness to do as public representatives must: represent the interests of the public.

As it stands, more info is gleaned from those ministerial PR sessions still on YouTube. DM168

This story first appeared in our weekly Daily Maverick 168 newspaper which is available for free to Pick n Pay Smart Shoppers at these Pick n Pay stores.

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All Comments 5

  • Couldn’t agree more. What is the root cause? The power at Luthuli House that stems from the ANC voting structures. If what Zuma and his tribe were enabled to do is not sedition, then what is? Can such a structure be within the SA Constitution, thus within the law? I’ve posed this question previously to Constitutional lawyers that might be reading comments, but no response as yet. It’s in any event probably irrelevant. Where would the political will, or a power base of sufficient strength, come from to make such a challenge? It’s way past my bedtime as clearly such a thought means I’m already dreaming. I commented earlier on another article. Our best bet is to back CR to be a benevolent dictator to use his Presidential powers to do good, fix the JZ mess as best as he is able within the ANC power politics and avoid mass uprising by the disenfranchised populous. Not democracy, but survival to live on, and fight for our dream of such a democratic South Africa.

    • I find it sad that readers feel compelled to write comments like this. Surely as human beings we have more compassion for each other than to vote for the type of government that we’ve had for so many years, certainly in the post WW2 era.

    • Exactly Mike. Couldn’t have said it better. cr is in power, but has no power. His cardres have him by the knackers and he won’t move to improve SA, unless it is for the benefit of the anc.

  • The trouble is that there are absolutely NO consequences for parliamentarians and other ANC-connected cadres no matter the level of incompetence, wilful negligence, dishonesty and corruption. A poorly educated, easily manipulated populace that doesn’t/ cannot read critically and that just absorbs passively the drivel on TV & social media platforms spewing unfounded, emotively charged muck, makes politics a refuge of the lazy -mentally & physically. It’s just a free ride where you get dressed up in the same colonial attire that you loudly deride and show up in the committee meetings, National/Provincial Assemblies & sleep with your eyes open & sometimes openly doze off in plain sight. No wonder there’s such a bunfight for political positions – so much money & perks for doing basically nothing except fulminate at the gills to defend the indefensible in a carefully pre-choreographed circus to show your loyalty to the ruling party. All they’re doing is ensuring their own, already bulging, pockets are lined and that they and their families feed fat off the public purse. Sadly, that same voting fodder will continue to vote the very people who rob them of a decent life back into power – or go for an even worse option – come election time. That’s what happens when you have a failing public education curriculum/system and people don’t read/ can’t read, when the citizens are driven by emotionalism, empty populist rhetoric & outright lies.

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