Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
20 August 2008

A conflict of interest over the Scorpions?

Should the wolf be allowed to guard the chicken coop? Should one steal candy from a defenseless child? Just asking, given the fact that Parliament is presently considering the passing of legislation that would scrap the Scorpions and incorporate (some of) its members into the South African Police Services.

The problem is, more than 100 MP’s have been investigated by the Scorpions for their role in the Travelgate scandal, more than 60 had property confiscated by the unit while at least thirty of them had been successfully prosecuted by the Scorpions for scamming Parliament.

After concerns were raised about the possible conflict of interest inherent in this situation, Speaker of the National Assembly, Baleka Mbete, has appointed a special multiparty sub-committee to investigate whether MPs who have come under the scrutiny of the Scorpions should be allowed to vote on the unit’s future.

This was despite Parliament’s legal advisers arguing yesterday that while a conflict of interest could possibly arise, there were enough checks and balances to prevent such MPs from unduly influencing proceedings when the Bills were debated. According to a report in the Cape Times Parliament’s legal adviser, Mthuthuzeli Vanara, have argued as follows:

We’re of the view that there is no legal basis, at this stage, for Parliament to order the recusal of the investigated member(s) from participating in both the House and committee proceedings. In our view such an order of recusal would be unlawful and have an adverse effect on the parties, which the relevant member(s) represent, as well as the electorate they are representing.

ANC MPs have opposed any move to have those MPs investigated by the Scorpions recuse themselves, arguing that the party would no longer have a majority in the National Assembly if all members originally investigated by the Scorpions for alleged involvement in the Travelgate scandal recused themselves.

The Constitution does not explicitly deal with conflicts of interest by members of the legislature when dealing with legislation. But I think two arguments could be made for a recusal of the Travelgate MPs.

First, the Supreme Court of Appeal has confirmed in the De Lille case that Parliament is also subject to the Constitution and actions by the legislature can therefore be reviewed by a Court to determine if these actions conformed to the requirements of the Constitution. In the Hugo case the Constitutional Court ruled that when one of the branches of government – in this case the President as head of the executive – exercised a constitutional power, it at least had to act in a rational manner. This mean that any arbitrary or capricious actions or actions based on bad faith could be reviewed by the court and set aside.

I think a strong argument could be made that where MPs who have been investigated by the Scorpions take part in the passing of legislation that would destroy that unit, they would be acting in bad faith and that the legislation thus passed could be reviewed by the Court and set aside. Whether that means that the ANC would lose its majority and would be unable to push the legislation through Parliament seems irrelevant to me.

Second, Parliament also has a duty to act in a way that seems credible and it must not act in a way that would create a reasonable apprehension in the minds of informed bystanders that it was acting mala fide. Here, an argument could be made that a reasonable person would fear that the MPs who have been investigated would be biased when considering the legislation and would vote for abolition out of revenge and thus for an ulterior motive. In fact, this seems pretty obvious to most: why else disband a unit that has been rather good at catching the criminals and putting them behind bars?

I am not sure why the legal adviser for Parliament is arguing that an order for recusal would be unlawful. Clearly a court could make such an order and clearly a court could set aside legislation passed in such a way if it found that the requirements of the constitution have not been met.

The argument that such an order would have adverse effects on the parties affected because in effect it would make it impossible for the ANC to gain the requisite majority to pass the legislation also does not seem to hold water. This is a circular argument that takes the interest of the ANC – and not the requirements of the Constitution – as its starting point. If the party want to pass the legislation it can always replace those Travelgate MPs affected by investigations by the Scorpions with new MPs. So far it has chosen not to do so.

This is not a done deal, but it seems to me the strongest legal argument yet advanced to stop the scrapping of the Scorpions and it is worth pursuing. The fact that a multi-party committee was formed to look into this, suggests that the Speaker has had some good legal advice and is also concerned about the legal problems that might arise if those investigated by the Scorpions take part in a decision to disband it.

Maybe Mr Glenister’s lawyers should try and include this line of attack in his arguments when he argues the case before the Constitutional Court today. How ironic it would be if the Parliament is unable to pass these pieces of legislation because of the investigation of its own members by the very unit it is trying to dissolve.

Some public spirited individual or the opposition parties in Parliament may want to pursue this line of reasoning in an application to the Courts. What is there to lose?

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