Legal opinion to Minister of Defence

LEGAL OPINION: INTERIM REPORT

DONE: MINISTRY LEGAL TEAM

The advisory opinion of Advocate Vassen is so incompetently drafted that I need not be longiloquent about its major flaws.  It suffices to simply rest on my original document and then refute the crux of Vassen’s argument which is based on a very superficial reading of the constitution.

Vassen relies on Section 42(3) of the Constitution but totally misunderstands its meaning.  It is trite that in any constitutional democracy where the notion of separation of powers prevails, a central tenet in the exercise of power by the executive is the notion of responsibility, which demands ultimate political accountability of government to the electorate. In the South African context, the Constitution demands legislative oversight of the executive and all organs of state. This is the essence of parliamentary accountability. Section 42 (3) of the Constitution sums up the functions of the National Assembly as being “to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action”.  It is puzzling how a demand of an interim report by an independent ministerial task team in regard to which the executive has not even formulated an opinion can be regarded as “scrutinizing and overseeing executive action.”  A document which has not been endorsed by the executive is not considered “executive action” or policy. 

It is also true that the executive’s duty to inform parliament is captured in section 92(3) of the Constitution which demands that ministers must provide information about the policies and the activities of their departments, i.e “provide parliament with full and regular reports concerning ,matters under their control.” This flow of information from the executive to parliament goes to the core of oversight and accountability.  But the minister is not being asked to provide information about the policies and the activities of her department. Nor is she being asked to provide full and regular reports concerning ,matters under her control. Instead a portfolio committee is asking for the release of an “interim” report by the NDFSC which has not yet surfaced before Cabinet and has not even received president’s full consideration.  The “interim report” cannot by any stretch of the imagination be deemed “full and regular” as defined in the constitution until the Minister has adopted it as her own and this can only occur after cabinet and presidency have acted.

I am perplexed by Advocate Vassen’s limited understanding of legislation making in this context.  Conventional wisdom of course teaches that legislation making is a function of parliaments.  However, it is safe to start from the premise that initiating legislation is the responsibility of the executive. In this regard, the position papers and policies documents may be put together by cabinet even before they are presented in parliament.

This includes ministerial task team reports.  Once in parliament, the public and everyone interested may comment on draft legislation, present written submissions to parliamentary committees and appear before them to present the submissions.  It is the height of absurdity to claim that a parliamentary committee may simply demand interim reports of ministerial task teams before they are even finalized so long as legislation is pending. 

Contrary to Vassen’s myopic view, oversight is not only the responsibility of the National Assembly based on section 55(2) as an”obligatory minimum standard”. Instead, oversight should be based on a broad approach based on the underlying values of the Constitution with the idea of building a strongly entrenched democratic culture operating within the ambit of these underlying values and spirit of the Constitution.  The separation of powers doctrine which is  based on the notion of checks and balances inherent in the relationship between different arms of government is central to the understanding of the interrelated themes of oversight, accountability, transparency and responsiveness. The national executive is accountable to Parliament, and the National Assembly must maintain oversight over all organs of state, pursuant to the specific functions set out for the Assembly in the Constitution.  Sections 92 and 93 provide that members of the Cabinet and Deputy Ministers are accountable to Parliament for the exercise of their powers and the performance of their functions and must provide Parliament with full and regular reports concerning matters under their control.  Section 92 of the Constitution states quite broadly that members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions. It also states that Members of the Cabinet must act in accordance with the Constitution; and must provide Parliament with full and regular reports concerning matters under their control. When they do this the Ministers are not witnesses, they are members of the Executive fulfilling a constitutional function.  Vassen’s reference to subpoena powers and compellability of ministers as witnesses is way off the mark and absurd.  

Section 56 of the Constitution states that “[t]he National Assembly or any of its committees may summon any person to appear before it to give evidence on oath or affirmation, or to produce documents; require any person or institution to report to it; or compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of” the Constitution.   But that does not mean that ministers may be forced to produce documents will-nilly. Any portfolio committee foolish enough to issue a summons to a minister on a matter pending before cabinet or the executive will be met with an iron-clad claim of executive privilege.  Generally speaking, ministers take an oath to respect confidentiality of certain matters serving before cabinet.  Until a matter has been discussed by cabinet and government position has been formulated, cabinet deliberations and candid and confidential matters before cabinet cannot be disclosed to parliamentary committees or anyone else.  What Vassen fails to appreciate is that the interim reports which are yet to receive cabinet considerations have no status as official reports – they have not been adopted by the minister and cabinet.  As such, they are not covered by section 92(3) of the Constitution which demands that ministers must provide information about the policies and the activities of their departments, i.e “provide parliament with full and regular reports concerning ,matters under their control.”  

I forgot to elaborate on Section 92(2) which states that states quite broadly that members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions.  This section compels the conclusion and supports the minister’s position that her cabinet colleagues must receive the reports and interrogate them before they are handed to a parliamentary oversight body.  How else can cabinet members be held accountable “collectively” for documents that are handed to portfolio committees prematurely and before the ministers have even seen them?  Vassen refers to this section but fails to understand how in practical terms ministers ensure their collective accountability.  Thank you.

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