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Parliamentary legal opinion urges MPs to act on Zondo commission report ’as it unfolds’

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In a legal opinion signed off by the chief parliamentary legal adviser, Speaker Nosiviwe Mapisa-Nqakula was advised that Parliament can and should play an oversight role instead of waiting for the president’s plan.

National Assembly Speaker Nosiviwe Mapisa Nqakula. Picture: Phando Jikelo/African News Agency (ANA)

PARLIAMENT’S legal services have confirmed that MPs are empowered to and should begin the work of processing the Zondo commission report immediately, despite Speaker Nosiviwe Mapisa-Nqakula’s earlier view that they should only be dealt with when President Cyril Ramaphosa tables the final report.

In a legal opinion signed off by the chief parliamentary legal adviser, Mapisa-Nqakula was advised that while it was likely that specific members of the executive would be instructed by the president to introduce legislation as envisaged in the report and that the president may direct the relevant law enforcement authorities to action the recommendations in the Zondo report, “Parliament can and should play an oversight role in these matters as these unfold”.

“In order for Parliament to effectively exercise its oversight functions that emanate from the report, it is necessary that the report be carefully scrutinised and that all matters which require further oversight by Parliament be extracted and referred to the relevant portfolio committees. In other words, Parliament should consider the report beyond the explicit directives to it as contained in the recommendations and the president’s implementation plan,” the legal opinion read.

The Zondo commission held its first hearing in August 2018 and has since then successfully applied for several extensions to its term on the basis, among others, of the volume of work. It held over 400 hearings and heard in excess of 300 witnesses.

The portions of the Zondo report, as released to date, identify several MPs, past and present, who are implicated in conduct that may constitute illegal, unlawful or unethical behaviour.

Implicated MPs include Gwede Mantashe, Nomvula Mokonyane, Winnie Ngwenya, Cedric Frolick, Vincent Smith and Thabang Makwetla.

In addition, there are certain aspects of the report that have a bearing on Parliamentary business and oversight.

The legal opinion further noted that the president’s Implementation Plan, which will be submitted together with the report in its entirety to Parliament later this year, may include specific implementation targets that relate to Parliament.

The final report will also likely contain recommendations related to the strengthening of parliamentary oversight.

Parliament’s legal services then recommended that Mapisa-Nqakula consider “as soon as possible” the alleged breach of the Ethics Code by Ngwenya and Frolick.

“This referral is not dependent on the release of the final portion of the report,” the legal services commented.

It further recommended that the parliamentary research unit be consulted with a view to assist Parliament to extract all parts of the report that may have a bearing on Parliament’s oversight mandate so that these matters could be referred to the appropriate content advisers to Portfolio Committees for advising the committees on matters that require their further consideration.

DA deputy chief whip Siviwe Gwarube said obtaining this legal opinion had been an important step in holding Parliament’s feet to the fire in dealing with the findings of the Zondo commission report.

“As the reports have clearly demonstrated, Parliament needs to set up its own processes of how it will deal with not only the implicated individuals, but also how it will strengthen its oversight functions going forward.

“This is not the domain of the president but that of Parliament. The argument to wait for the president can only be seen as a delaying tactic and not in the interests of transparency and accountability,” Gwarube said.

EFF leader Julius Malema, who addressed the media earlier on Monday, said that while his party had “no appetite” to entertain the Zondo report, Mapisa-Nqakula’s decision to wait for Ramaphosa’s plan was a demonstration of her lack of understanding of the separation of powers.

“What Parliament does has got nothing to do with what the executive does, therefore Parliament can commence its work on the Zondo report.

“But there is nothing exciting to the EFF about report because Zondo used the commission to advance the interests of a certain faction against the other faction and by so doing illegitimised the whole process,” he said.

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