When MPs misuse sub judice to avoid exercising their oversight of ministers

When elected public representatives surrender their constitutional responsibility and power, it’s gobsmacking – especially when absurdities are invoked, such as claiming an issue is sub judice, and that it kicks in when a charge is laid with police.

But that’s what ANC MPs on the parliamentary health committee did to nix scrutiny of the R150-million irregularly awarded to a company, Digital Vibes, involving two close associates of Health Minister Zweli Mkhize.

“From the ANC point of view, we are of the view this matter, since it is reported before the court of law by the DA… it is sub judice,” said ANC MP Tshilidzi Munyai on 4 June.

Health committee chairperson Sibongiseni Dhlomo had just informed everyone how, during a telephone call the night before, he had accepted Mkhize’s explanation of legal advice for not attending that parliamentary meeting.

“The matter is sub judice,” agreed ANC MP Kenneth Jacobs later. “There will be answers given in the future. The President also stated very clearly he’s awaiting the outcomes of the SIU [Special Investigating Unit] investigation. We must be mindful of the impact it would have if we discuss too many of these issues…”

Usually it’s people appearing before MPs who try invoke sub judice. Not parliamentarians. In fact, on 23 May 2017, public enterprises committee MPs insisted on answers after then Eskom board chairperson Ben Ngubane claimed sub judice to avoid questions on dodgy dealings at the power utility.

Then, parliamentary legal services told Ngubane that sub judice is not a licence to avoid answering questions from MPs. Unlike in the apartheid years, democratic South Africa’s courts have restricted sub judice to those rare occasions when discussing a case pending before the courts would cause irreparable harm.

This week Parliament’s legal services repeated this explanation to the health committee – and how sub judice, in any case, does not apply from the moment a case is laid with police: “The sub judice does not operate as a restriction on the National Assembly from fulfilling its constitutional mandate to hold to account and oversee the executive.”

That lawyers should have to tell lawmakers what their institutional powers and responsibilities are, is an indictment of MPs.

As the elected representatives of the public, they must oversee and hold to account the executive, including how ministers and departments spend money. And Rule 167 allows lawmakers to call anyone before committees and request any document.

Public finances malfeasance is not victimless. Diverting money from the national purse directly affects the most vulnerable and their rights to access health, housing, basic services, quality education and more.

It’s not unreasonable to expect lawmakers to pull up their oversight socks, given the testimony on lacklustre parliamentary oversight before the State Capture commission. Or the March 2016 Constitutional Court judgement that the National Assembly acted unlawfully and in a manner “inconsistent with the Constitution” when it absolved then president Jacob Zuma from paying for the security upgrades at his Nkandla homestead, as the Public Protector had ordered.

The 4 June health committee proceedings showed none of the lessons have been learnt.

On 26 May, in a live TV broadcast, Mkhize admitted the Digital Vibes contract was “irregular”, and announced disciplinary hearings and the recovery of money.

Although he didn’t appear before MPs on 4 June, following legal advice, four days later Mkhize briefed journalists in Kimberley. He spoke about the Digital Vibes-sponsored benefits for his family home and funds given to his son, and about special leave and the ANC integrity committee.

There was nothing Mkhize said in Kimberley that he could not have told Parliament. The legal advice had not changed. The minister may have his reasons for not wanting to talk to lawmakers, but MPs have no excuse for letting him ignore them.

This signals an unhealthy deference to the executive and unwillingness to do as public representatives must: represent the interests of the public.

As it stands, more info is gleaned from those ministerial PR sessions still on YouTube.