DA will seek legal advice on ANC's blocking of Nkandla ad hoc committee

Note to editors: This is the press statement that was distributed during a press conference hosted by DA Parliamentary Leader, Lindiwe Mazibuko MP, the Chairperson of the DA's Federal Executive, James Selfe MP and DA Parliamentary Caucus Chairperson, Dr Wilmot James MP today at Parliament. 

Yesterday, Parliament celebrated the 20th anniversary of South Africa's democracy with a ceremony to unveil a statue of President Nelson Mandela outside the doors of the National Assembly.  

Within just a few hours, this powerful gesture was quickly tarnished by President Zuma's ANC, which went against every single principle being celebrated at this occasion. 

If there was ever any indication that the ANC of today no longer embodies the values that it once did under Madiba, yesterday's conduct during the meeting of the ad hoc committee, established by the Speaker to consider the Nkandla matter, made it quite clear. 

The truth is that the ANC had a predetermined plan, from the very beginning, to undermine this committee and do everything possible to ensure that President Zuma was protected from scrutiny. 

This is made clear by their actions throughout this period:

On 19 March 2014 the Public Protector, Adv Thuli Madonsela, released her report into the Nkandla upgrades amidst the ANC's insults and attempts to delegitimise her report. 

On 2 April 2014, a full two weeks after the release of this report, President Zuma decided to break his silence on this matter and wrote to the Speaker of the National Assembly, tabling his response to the report and enclosing a copy of the Public Protector's Report and his Special Investigative Unit Proclamation. 

On 9 April 2014, after consulting the Chief Whip of the Majority Party, and the senior whips of the other parties, the Speaker appointed an ad hoc committee in terms of Rule 214(1)(b) of the National Assembly Rules.

While the DA and other political parties immediately nominated their members that would represent them in the committee, the ANC took 8 full days to submit their names, effectively delaying the establishment of the committee.

On 24 April 2014, at the ad hoc committee's first meeting, the ANC claimed that they had not read the reports in question and requested that they be given four days to study them and reconvene on Monday the 28th of April. The DA argued that the committee should work throughout the weekend in order to meet its deadline and this suggestion was shot down immediately by the ANC. 

On 28 April 2014, the DA argued that the committee could be legitimately extended and key parties could be summoned to provide their input before the fourth parliament expired at midnight on 6 May 2014. This was blocked, and instead the ANC used its majority in the committee to pass a motion to refer the matter to the fifth Parliament.

It is clear that from the onset, all seven ANC MPs were deployed to this ad hoc committee to do everything possible to frustrate the parliamentary process and shield President Zuma from accountability for his role in the Nkandla scandal. 

With sheer arrogance, they have shown complete disregard for the Speaker who established this ad hoc committee, the independent Chapter Nine institution which investigated the President, and the Constitution which enjoins Members of Parliament to hold the Executive to account. 

The fact that the DA had brought forward solid proposals to the committee did not to deter the ANC from shutting down Parliament and preventing MPs from performing their crucial role of holding the executive to account. 

The DA argued that although the committee had a much work to do, an extension until midnight on 6 May 2014 would have provided the committee ample time within which to complete its task. 

We further argued that the invited parties should include - amongst others - the Public Protector, the authors of the Task Team Report and the Head of the SIU.

This was essential because it was the President's letter itself which pointed out "glaring anomalies" between the Public Protector and Inter-ministerial reports on this matter. The Public Protector report also revealed that President Zuma did not answer many questions put to him, and that clarity was still needed.

This is precisely why the DA tabled an alternative report with the Ad Hoc Committee that would seek to extend the mandate of the ad hoc committee until 23h59 on 6 May 2014 to enable the committee to hear evidence and consider the representations made to it by numerous parties.

The ANC's rejection of our proposal was not only an effort to frustrate Parliament and its authority but it was also a clear undermining of our Constitutional values. It was in violation of section 55(2) of the Constitution which enjoins the National Assembly to provide mechanisms to ensure that all executive organs of state in the national spheres of government are held accountable to it.

Furthermore, in the Constitutional Court case of Oriani-Ambrosini MP v Sisulu MP, Speaker of the National Assembly, Chief Justice Mogoeng citing Justice Sachs stated: 

"[T]he Constitution does not envisage a mathematical form of democracy, where the winner takes all until the next vote-counting exercise occurs.  Rather, it contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered. . . . The open and deliberative nature of the process goes further than providing a dignified and meaningful role for all participants.  It is calculated to produce better outcomes through subjecting laws and governmental action to the test of critical debate, rather than basing them on unilateral decision-making.  It should be underlined that the responsibility for serious and meaningful deliberation and decision-making rests not only on the majority, but on minority groups as well.  In the end, the endeavours of both majority and minority parties should be directed not towards exercising (or blocking the exercise) of power for its own sake, but at achieving a just society where, in the words of the Preamble, ‘South Africa belongs to all who live in it."

This form of deliberative democracy, where MPs fully apply their minds to a matter before them, was not given effect to during the time of this committee. In fact, while the ANC asked for time to read all submissions referred to the committee, they made no effort to fully engage with this material or make any meaningful recommendations on it.

This was an exercise in kicking for touch, and in doing so it undermined important constitutional principles. 

It must also be stressed that the ANC's referral of this matter to the fifth Parliament is absolutely no guarantee that it will be acted upon. The fourth Parliament expires at midnight on 6 May 2014. There will be new MPs, possibly a new Speaker, and depending on the results, a different President. 

To say that this matter is still on the agenda is hopelessly misleading. It has been scandalously killed-off as part of an elaborate cover-up.

Lastly, my request for the formation of the Ad Hoc Committee was not made in isolation of the Constitution. It was mandated by it. Indeed, the request was in terms of Section 89 of the Constitution of the Republic, which provides that the National Assembly may resolve to remove the President of the Republic if he is found to have violated the Constitution and the law, and/or is guilty of serious misconduct.

I presented prima facie evidence to the Speaker in this regard. By not taking decisive action in considering these key conditions set in Section 89, a Constitutional provision has, I believe, been frustrated by Parliament. 

Furthermore, given that the successful removal of the President through this mechanism has serious consequences for him, including standing for public office again. This matter cannot be deferred - President Zuma may be the President after 7 May 2014, and the conduct in question occurred during this term of office.

It must be remembered that the Constitutional Court found in Mazibuko v the Speaker of the National Assembly, with respect to Section 102(2) of the Constitution that:

"Its rules may not, deny, frustrate, unreasonably delay or postpone the exercise of the right. It seems to be plain that when a member of or a political party within the Assembly, acting alone or in concert with other members of the Assembly, tables a motion of no confidence ... the motion deserves the serious and prompt attention of the responsible committees of the Assembly and, in the last resort, the Assembly itself. The responsible committee or the Assembly must take steps that ensure that the motion is tabled and voted on without reasonable delay."

I am of the opinion that this is equally applicable to a Section 89 motion. 

Given these facts, the DA will seek legal advice on the ANC's effective frustration of various constitutional principles through their conduct during the meeting of the ad hoc committee.

We will also seek advice on whether Parliament ought to be recalled before midnight on 6 May 2014 to, at the very least, consider the ANC's committee report, and vote on it, and at best, consider my motion in terms of Section 89 of the Constitution to remove the President of the Republic.

The DA will not give up in our effort to ensure that all those responsible for this wrong-doing are held accountable.

We will continue the fight to get answers and we will do everything possible to protect the integrity of Parliament.

In the end, South Africans should be outraged by the ANC's conduct on this matter. They should be reminded that if they vote for the DA, the ANC would have fewer seats on such committees in the future, and  with their vote, our citizens can prevent this abuse of power from taking place again.

The power is in our hands. Let us send a message to the ANC on 7th May that we will not tolerate efforts to hide corruption.

Statement issued by Lindiwe Mazibuko MP, Parliamentary Leader of the Democratic Alliance, April 29 2014

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