The decision taken in Luthuli House in 2021 to appoint Nosiviwe Mapisa-Nqakula as Speaker of the National Assembly was criticised widely at the time by the official Opposition, Professor Pierre de Vos and this writer.

The opposition to the appointment and the criticism of the suitability for the high and traditionally impartial office the Speaker was elected to occupy was ignored by the ANC majority in Parliament which simply followed the instructions from Luthuli House blindly.

Recent developments throw light on the irrationality of the decision to vote Luthuli House instructions, as all loyal cadres are required to do on pain of being fired. The Speaker did not rise to the occasion and has faced a motion of no confidence for her alleged mistreatment of the EFF members of the house over which she presides.

Read more in Daily Maverick: Mapisa-Nqakula graft prosecution — ID ‘surprised’ by speaker’s urgent interdict, discovery application

On her watch, the State of the Nation Address has deteriorated into chaos due to her inability to command the respect of the opposition, particularly the EFF members of Parliament. A further DA-sponsored motion of no confidence is in the works at Parliament.

The Speaker may do the right thing (but don’t hold your breath) by resigning forthwith, as she should, because she faces possible prosecution for her allegedly corrupt activities in relation to allegedly soliciting bribes from a defence contractor while she was minister of defence.

Chequered past

The murkiness of the past of the Speaker, going back to the Travelgate scandal, is detailed in the previous publications referred to above. There are also new and further dark clouds connected to her involvement in radically increasing the emoluments of the secretary of the National Assembly. Marianne Merten has set out the recent history in Daily Maverick.

The Speaker’s decision to seek a most unusual interdict against the NPA to forestall her impending arrest is a curious and unprecedented one. She has lost sight of her required impartiality and of her duty to preserve the integrity of the high office she holds. Instead, she prioritises her personal and party political interests.

Even the most cursory perusal of the founding papers in the case reveals that the alleged threat of arrest is more illusory than real. The prosecutor in the case has written to the attorneys acting for the Speaker in the most conciliatory of terms urging that a “seamless” process be negotiated with the attorneys acting for the Speaker, with the possibility of an arrest regarded as a last resort in the event of non-cooperation on the part of the attorney acting for the Speaker. Bail will not be opposed, so there is no threat of incarceration despite the panic in her camp.

The prosecutor’s letter is hardly grounds for rushing off to court to seek an interdict. Consider this extract from the correspondence is exactly, on the Speaker’s own version, what he put to the attorneys acting for the Speaker in his own words:

“This office [i.e. the NPA] has informed you [i.e. the Speaker’s attorney] that it seeks to make the process as seamless as possible, however your apparent delaying may result in a last resort of proceeding as allowed for in terms of section 40 of the Criminal Procedure Act.”

The reference to the criminal code is a reference to the powers it confers on police officers to arrest a suspect without a warrant when they reasonably suspect the suspect of committing one or more of the offences listed in schedule one of the code. Corruption is so listed.

The use of the word “may” will receive pertinacious examination should the merits of the application by the Speaker ever be aired in court. By launching it the Speaker behaves like a cat on a hot tin roof using a media-influencing and grandstanding approach to the facts.

Quite apart from the unusual nature of the relief claimed, in effect seeking to block the NPA from doing the work it is constitutionally required to do in relation to the prosecution of crime, there are other features of the founding affidavit that merit consideration and comment.

The Speaker makes much of her lofty position in the hierarchy of the legislative branch of government. The fact that she has announced her retirement from politics and will not be standing for re-election to Parliament in the May 2024 general election receives nary a mention.

The embarrassment of the ANC, which she has served since the 1980s, is given great prominence but her duty to be the impartial “chair” of the National Assembly is not. The term of office of the Speaker is limited to the life of the current sixth Parliament and it is scheduled to end on 29 May.

Parliament rises at the end of March 2024. After that date, the Speaker will be a parliamentary pensioner (and former Cabinet minister) not an active politician. In these circumstances, her concerns about her professional reputation, such as it is, are entirely misplaced as are the alleged impacts upon her party of choice.

Special leave to Stalingrad

The stratagem of taking special leave is also questionable. The Speaker is not at liberty to take special leave at her own discretion or as a matter of exercising some right she imagines she has. Special leave for Speakers, if it exists at all, is the decision of Parliament, not the Speaker. If she survives the motion of no confidence the DA has in mind, the Speaker may apply for special leave and Parliament can debate whether or not to grant it.

It is true that in contracts of service, it is possible to accept a precautionary suspension by the employer while allegations of impropriety or even wrongdoing by the employee are under investigation. This is done to preserve the integrity of the institution that is employing the person on precautionary suspension.

The rules of Parliament do not contemplate a process of this nature. In mature democracies in which the rule of law holds sway, politicians against whom allegations of impropriety or criminality are made usually resign, devote themselves to clearing their names and then make themselves available for re-election when the issues have been resolved. Unfortunately, this salutary practice is not often resorted to in SA.

Minister Zweli Mkhize will be remembered as the first, and so far only, minister appointed by Cyril Ramaphosa to resign under a cloud of suspicion. The Special Investigations Unit has reported that:

“Between January 2020 and February 2021, Digital Vibes received a total of R150-million from the Department of Health intended for the National Health Insurance (NHI) campaign and vital public communications around the current Covid-19 pandemic.

“Instead, very little of these funds were used for legitimate work as the majority of the funds were diverted to individuals for the personal benefit of themselves, family members and associates.

“The tender was found to have been awarded improperly and led to the resignation of the Minister of Health, Dr Zweli Mkhize, as well as seven government officials being investigated for misconduct and served with letters of suspension.”

Mkhize has not been charged with any offence and is a candidate for election on the ANC party list for the next Parliament. He lurks on the backbenches of the ANC caucus where he does very little apart from drawing his parliamentary emoluments. When the impeachment votes were taken, he was seated as far away from his erstwhile Cabinet colleagues as possible.

The case made out by the Speaker in her papers seems, unfortunately so, to be in the nature of a Stalingrad strategy so beloved of the erstwhile Zuma faction of the ANC.

It does not help the Speaker to claim that she has spent the “majority of” her life working to uphold the rule of law. She is currently sworn to do so in terms of her oath of office. She was minister of defence and similarly bound when she is alleged to have solicited bribes from a defence contractor.

The Speaker is not upholding the rule of law by precipitously running to court on gossamer-thin grounds and by purporting to go on a period of special leave that can only serve to enable her to continue to draw her emoluments.

If the Speaker wants access to information gathered by the prosecution service she has a remedy under the provisions of the Promotion of Access to Information Act. If and when she is charged she will be entitled, like all other accused persons, to be afforded access to the documentation relevant to the charges against her. If she wishes to attack the propriety of the search-and-seizure operations at her home, it is a matter she can raise at the trial.

The correct way forward for the Speaker is to resign, face any charges that may flow from the investigation and stop grandstanding in the civil courts like the deadbeats who invented the Stalingrad strategy in defiance of the tenets of the rule of law.

There is one thing the Speaker should be assured of: the prosecution would not have reached the stage it has reached if the prosecutors involved did not think that a prima facie case exists. The invoices seized during the operations last week and their cash payment in large amounts certainly require an explanation which is not yet forthcoming from the Speaker.

She is entitled, like all accused persons, to the presumption of innocence. If she has done nothing wrong she has nothing to fear. Our independent and impartial courts will deal with the case without fear, favour or prejudice.

For now, it seems the lady doth protest too much. DM