Parliament welcomes high court ruling on Mkhwebane’s report

The Speak­er of the Nation­al Assem­bly, Than­di Modise, has on Tues­day wel­comed the North Gaut­eng High Court’s rul­ing to set aside Pub­lic Pro­tec­tor, Advo­cate Busisi­we Mkwe­bane’s reme­di­al action on her report.

The report iden­ti­fies with Mkwebane’s inves­ti­ga­tions into alle­ga­tions of an improp­er rela­tion­ship between Pres­i­dent Cyril Ramaphosa and African Glob­al Oper­a­tions (for­mer­ly Bosasa

Modise is the sec­ond appli­cant into the mat­ter.

Mkwe­bane had restrict­ed her appli­ca­tion to the reme­di­al actions and mon­i­tor­ing mech­a­nisms direct­ed at the Speak­er of the Nation­al Assem­bly.

As a result, Modise had request­ed the court to review, declare invalid and set aside these reme­di­al actions and mon­i­tor­ing mea­sures, on the basis that they were unlaw­ful.

In set­ting aside the Pub­lic Protector’s reme­di­al actions and mon­i­tor­ing mech­a­nism, the court found that they were inap­pro­pri­ate, inef­fec­tive, encroached on Parliament’s con­sti­tu­tion­al func­tions and respon­si­bil­i­ties and were con­trary to the doc­trine of sep­a­ra­tion of pow­ers.

The court found the reme­di­al action were found­ed on an erro­neous per­cep­tion of the Eth­i­cal Code of Con­duct and Dis­clo­sure of Mem­bers’ Inter­ests and its scope of appli­ca­tion and, thus, made their imple­men­ta­tion imprac­ti­cal

The Court agreed that the Speak­er did­n’t have the pow­ers to instruct  the Pres­i­dent to dis­close in the Reg­is­ter of Mem­bers’ Inter­ests the dona­tion received by CR17 Cam­paign as the Code applied to serv­ing Mem­bers of Par­lia­ment.

Pres­i­dent Ramaphosa ceased to be a mem­ber when he was elect­ed Pres­i­dent on Feb­ru­ary 2018.

The court also found that the Pub­lic Protector’s direc­tive that Par­lia­ment imple­ment her obser­va­tions, includ­ing pos­si­ble amend­ment of the rules deal­ing with ques­tions and answers in the House, was inap­pro­pri­ate and an “unwar­rant­ed encroach­ment on the Speaker’s dis­cre­tionary pow­ers”.

The Speak­er is pleased with the judg­ment because it clar­i­fies the pow­ers of the Pub­lic Pro­tec­tor as they relate to Par­lia­ment and fur­ther rein­forces the prin­ci­ples of sep­a­ra­tion of pow­ers upon which our con­sti­tu­tion­al democ­ra­cy is based.

 

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