Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
26 April 2010

On the princess, her advisors and contempt for democracy

After Tony Yengeni was thrown in jail, Minister Lindiwe Sisulu arguably became the best dressed member of Parliament. However, behind her back she is often referred to as “The Princess” because she comes from political blue blood and acts the part. “We are not amused,” seems to be her motto.

Last week the Minister revealed her monarchic tendencies for all to see when she got rather upset with Parliament’s standing committee on public accounts (Scopa) because it – gasp! – demanded that she should appear before it and berated her when she failed to turn up on no less than three occasions. “We” were not amused and had much to say about the matter.

She felt Scopa’s criticism had injured her dignity (I suppose this is because she believes a Princess has more dignity than a shackdweller, say, and may thus not be criticised) and as a result has lodged a formal complaint with Deputy Presiden Kgalema Motlanthe. She also met ANC chief whip Mathole Motshekga and other party whips last Wednesday where a “political decision” was taken that she should boycott Scopa. As The Star reports, The Princess then had the following to say:

“For now I am in a situation I don’t see my purpose in Scopa. Scopa has a relationship with the department, they can summon the department but they cannot summon ministers. They interact with ministers, it is our responsibility to co-operate. Once you have heard all this noise ‘summon the minister’ why would you want to go there and cloud the issue? The issue that we all should be concerned about is making sure that the public money that is given to any department is properly accounted for. That is what I want Scopa to do, they have complete access to my department,” she told journalists

She contested Scopa’s right to summon her to appear before it, saying the only committee that had such power was the joint standing committee on intelligence, which she chaired in the 1990s, and Speaker of the National Assembly Max Sisulu. If Scopa or any committee wanted to summon any minister they could do so through the Speaker, said the minister.

The Minister is of course wrong. Maybe she has received bad advice from a certain gentleman who has been disbarred from practicing law in the United States or maybe she just does not understand how accountability and oversight works and what political responsibility and accountability means. Let’s look at the law to see why the Minister is wrong.

Section 56 of the Constitution seems pretty clear on the issue (but one is not sure whether the Minister and her advisors consult the Constitution much). It 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.

Minister Sisulu’s comments that she could not be summoned by Scopa and – worse – that a “political decision” was taken that she would not attend Scopa meetings are ominous. It either suggests that the Minister believes she is not a “person” at all (because she is too exalted a creature to fall under the definition of “person”) or that she is above the law. As long as the ANC takes a “political decision” to ignore the law, the law and the constitution can be flouted.

But what about her somewhat contradictory claim that Scopa could only summons her to Parliament via her brother, The Speaker of Parliament? She is also wrong on this score. Section 14(2) of the Powers and Privileges of Parliament Act, states that a summons in terms of the Constitution to appear before a House or committee to give evidence or to produce documents must be issued by the Secretary of Parliament on the instructions of either the Speaker or the Chairperson of the relevant committee.

The Chairperson of a Committee can therefore instruct any Minister to appear before his or her Committee without any involvement of the Speaker. If that Minister disobeys the instruction, the Chairperson can have a summons issued to force the Minister to do so and she is legally obliged to appear. If she fails to appear she can be fined and even sent to prison for contempt.

But what about rules 325 of the Rules of the National Assembly, I hear you ask (I bet you knew about that rule all the time and have been lying awake at night pondering its meaning). The rule states that: “No committee shall summons a witness without first having satisfied the Speaker that the evidence of such witness will be material to the enquiry.”

There are two ways of understanding this rule. First, the rule could refer to witnesses who will be paid witness fees and will come and give evidence of a factual nature and not to members of the Executive who are constitutionally required to account to Parliament.

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.

When the Minister is summoned before Scopa she is not summoned as a witness but as the Minister to account POLITICALLY for what has happened in her department regarding the (mis)spending of money. A witness is summoned to give evidence. A Minister is summoned to account politically to Parliament in terms of the requirements of the Constitution.

Second, if the Minister is considered to be a witness for the purposes of rule 325, then there is an obvious clash between section 14(2) of the legislation mentioned above and the rules of Parliament as the legislation clearly states that either the Speaker or the head of a Committee can instruct that someone is summoned to appear before it. Where such a clash exists it should be interpreted in a manner that would avoid a clash. (I would contend the interpretation of “witness” provided above represents such an interpretation.) If it cannot be so interpreted, then the legislation takes precedence over the rules of Parliament.

So much for the technical arguments. But a broader issue is at stake. In our system of separation of powers, members of the Executive (including the Minister, whether she is a “person” or a “princess”) are politically accountable to Parliament. That is why any committee of Parliament can summons a Minister to appear before it and can demand that a Minister explains what steps are being taken to rectify any problem.

While functionaries like Director Generals might do most of the work and act as accounting officers, they are not POLITICALLY accountable to Parliament. Only the Ministers are. For that reason Ministers have a duty to respect Parliament and to account to Parliament if requested to do so and not to run to the Deputy President and ask that “political decisions” be taken so that Ministers need not do their jobs.

The buck stops with the Ministers. They have a constitutional duty to respect Parliament and to account to it. They cannot take “political decisions” not to do their jobs and not to respect the Constitution and the law. If they do that, they are in breach of the Constitution and in contempt, not only of the law, but also of every single voter who have voted for the parties of their choice to represent them in Parliament and to insure that members of the Executive do their jobs and spend our money wisely.

In writing this post (and in the spirit of ubuntu) I have tried not to show the same contempt for the Minister as she has shown for our system of constitutional democracy and checks and balances. Readers will have to judge whether I have been successful in this regard.

2015 Constitutionally Speaking | website created by Idea in a Forest