Par­lia­ment dis­re­garded Con­sti­tu­tion, again

CityPress - - News - ANDISIWE MAKINANA andisiwe.makinana@city­press.co.za

Par­lia­ment has lost yet an­other le­gal mat­ter – this time, it was found by the court to have fla­grantly dis­re­garded the Con­sti­tu­tion, fun­da­men­tal rules of pro­ce­dural jus­tice and the code of ethics of MPs.

This is the sec­ond such rul­ing since March 31, when a Con­sti­tu­tional Court judg­ment found the Na­tional Assem­bly acted in a man­ner that was “in­con­sis­tent with the Con­sti­tu­tion”, and acted un­law­fully over its han­dling of find­ings by the Pub­lic Pro­tec­tor and re­me­dial ac­tions.

This time, the Western Cape High Court ruled in favour of the DA and its leader, Mmusi Maimane, who had taken the joint com­mit­tee on ethics and mem­bers’ in­ter­ests, its chair­per­sons, the reg­is­trar of mem­bers’ in­ter­est Fazel Mo­hamed and Na­tional Assem­bly Speaker Baleka Mbete to the court.

Ear­lier this year, the com­mit­tee ruled that Maimane breached the code of con­duct for MPs for al­legedly fail­ing to de­clare fi­nan­cial spon­sor­ship to­wards his cam­paign to be­come DA leader and rec­om­mended a penalty, which was a fine of seven days’ salary (R20 000) and a rep­ri­mand in the House.

But the com­mit­tee came to its con­clu­sion with­out even in­form­ing Maimane that there was a com­plaint against him, or telling him what the nature of the com­plaint was. He was also not no­ti­fied of any in­ves­ti­ga­tion or asked to make any rep­re­sen­ta­tion or re­spond to al­le­ga­tions.

And when Maimane sought to ap­peal the com­mit­tee’s find­ings and rec­om­men­da­tions, and chal­lenged the process they fol­lowed, the com­mit­tee sim­ply dis­missed him and up­held its orig­i­nal po­si­tions.

Maimane and the DA went to court. They wanted the high court to give an or­der re­view­ing and set­ting aside the de­ci­sion of the com­mit­tee, and asked for penal­ties to be re­viewed and set aside.

The code re­quires the reg­is­trar of mem­bers’ in­ter­ests to main­tain a register of mem­bers’ in­ter­ests and it re­quires mem­bers of Par­lia­ment to dis­close to the reg­is­trar par­tic­u­lars of all the reg­is­tra­ble in­ter­ests as de­fined in the code.

The dead­line for the dis­clo­sure of in­ter­ests last year was June 30, but Mbete ex­tended it to July 30 2015.

Ac­cord­ing to the court papers, Maimane com­pleted and submitted his dec­la­ra­tion of in­ter­est for 2015 on July 30. “At that stage, the reg­is­trar gave him no in­di­ca­tion that his dec­la­ra­tion was in­suf­fi­cient.”

Maimane claimed that he first dis­cov­ered on Oc­to­ber 29 from an ANC press state­ment that he was ac­cused of do­ing some­thing wrong. He ar­gued that, at that stage, the reg­is­trar had not pub­lished the dec­la­ra­tions that had been submitted to her and did not know how the ANC would have known what was con­tained in the dec­la­ra­tion of in­ter­est be­fore it was pub­lished, un­less Mo­hamed was pro­vid­ing the ANC with in­for­ma­tion not avail­able to other po­lit­i­cal par­ties or the gen­eral pub­lic. Maimane be­lieved his ini­tial dec­la­ra­tion had com­plied fully with the code.

He stated that he did not re­ceive any di­rect fi­nan­cial spon­sor­ship or as­sis­tance from non­party sources in the DA lead­er­ship race.

Maimane wrote to the com­mit­tee to with­draw its find­ing, but the com­mit­tee wouldn’t budge, say­ing its process was cor­rect and it up­held its find­ings and penal­ties.

In his judg­ment on Thurs­day, Judge Robert Hen­ney agreed with Maimane that the com­mit­tee pre­judged the mat­ter against him. Hen­ney also agreed with Maimane that mem­bers of the com­mit­tee who ad­ju­di­cated the mat­ter may not par­tic­i­pate in its re­con­sid­er­a­tion, say­ing it would be un­ten­able to per­mit the same com­mit­tee to con­tinue to make a de­ci­sion against Maimane.

“I also agree with the first ap­pli­cant [Maimane] that the com­mit­tee did not fol­low fun­da­men­tal rules of pro­ce­dural jus­tice, the Con­sti­tu­tion and at least the very code of ethics they are re­quired to en­force.”

PHOTO: SIYANDA MAYEZA

Sihle Zikalala, ANC KwaZulu-Natal chair­per­son, and Pres­i­dent Ja­cob Zuma dance at an ANC Youth League rally in Dur­ban to com­mem­o­rate the 40th an­niver­sary of June 16 1976

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