Publications
Partners
Cape Town – An advocate has advised Parliament ahead of the inquiry into Eskom to avoid an SABC-type probe with an evidence leader, as this would cause MPs to lose their oversight power.
A legal opinion Parliament obtained advised against the presence of an evidence leader similar to the SABC ad hoc committee inquiry late last year.
The legal opinion from Advocate Zuraya Adhikarie, chief legal adviser of the Constitutional and Legal Services Office, advised MPs not to relinquish their oversight power to unelected officials or third parties.
“Members of Parliament must lead and direct the oversight process, as parliamentary privileges don’t extend to members of staff and third parties.”
Parliamentary privilege means that MPs have the right to say or write something without the risk of incurring punishment or legal action for defamation.
This privilege, however, does not extend to ordinary members of staff.
Adhikarie in her legal opinion said in terms of National Assembly rules, a committee that conducts an inquiry is allowed to summon any person to appear and give evidence under oath and compel people to comply with such summons.
The SABC inquiry was done in terms of the Broadcasting Act and the nature of the inquiry was that of a quasi-judicial process, with an evidence leader putting questions to witnesses on a set of defined concerns.
“As it was a quasi-judicial process the SABC ad hoc committee had to ensure stricter adherence to administrative law principles, including the rules of natural justice,” the legal opinion read.
The legal advice pointed out that the Eskom inquiry differs significantly from the SABC inquiry as the probe into Eskom is of an oversight nature and is not a statutory inquiry, as was the case with the SABC.
The legal opinion came on the back of a request by certain members of the portfolio committee on public enterprises during a previous meeting to have an evidence leader present during the inquiry, as was the case with the SABC inquiry in December 2016.
MPs at the time heard that the experienced and acclaimed Advocate Nthuthuzelo Vanara will not be available to perform the function of evidence leader during the Eskom inquiry, and that he would only be giving advice to the committee.
According to House Chairperson in the National Assembly of Parliament Cedric Frolick, Vanara’s current workload as registrar of members’ interest caused him to be unavailable to fulfil the role as evidence leader.
During the meeting, Steve Swart from the African Christian Democratic Party raised concern over Vanara’s unavailability and stressed that a “strong and firm” evidence leader needs to be part of the inquiry from the onset.
“We need someone with court experience specifically,” Swart said, “someone like Advocate Vanara who was firm when some witnesses during the SABC inquiry tried to bully him.”
