ANALYSIS | Parliamentary oversight: Stella cut down to size, but 'unlawful' Cele looms large

The past week saw two victories for parliamentary oversight, with the Portfolio Committee on Communications cutting Stella Ndabeni-Abrahams down to size and the Portfolio Committee on Trade and Industry finally agreeing to scrutinise the National Lotteries Commission's beneficiaries, but the way the Portfolio Committee of Police treats Police Minister Bheki Cele with kid gloves when the head of IPID is involved remains a concern, writes parliamentary reporter Jan Gerber.

In the winter of 2015, then communications minister Faith Muthambi told the Portfolio Committee that it wasn't up to Parliament to tell her which laws applied to her.

This was in response to a legal opinion the committee adopted at a previous meeting, that Muthambi's involvement in the removal of three SABC board members was illegal. Muthambi rocked up at the meeting and provided a contrary legal opinion.

The ANC contingent on the committee immediately kowtowed before Muthambi and disowned the previous legal opinion. When former DA MP Gavin Davis produced a letter from then committee chairperson Joyce Moloi-Moropa, in which she stated that the committee endorsed the previous legal opinion, acting chairperson, and former ANC MP Dikeledi Tsotetsi, said she didn't know what "endorse" means and asked the committee to pretend that the letter didn't exist. The other ANC MPs agreed and attacked Davis, while Muthambi smiled broadly.

It was a farce. Instead of doing their constitutionally mandated oversight duty, the ANC contingent tried to gaslight the opposition and the public.

But that was par for the course back then. Remember, there were two ad hoc committees which found that former president Jacob Zuma's swimming pool was in actual fact a fire pool, and therefore a security feature.

It was only after the damning Constitutional Court ruling on Nkandla in March 2016 – which embarrassed several of the ANC MPs who connived in Parliament on Zuma's behalf – and the ANC's poor showing in the 2016 municipal elections, that Zuma's chokehold on the ANC caucus weakened, which meant that Parliament's work became less of a sham.

Sometimes, it even did its job very well, like the ad hoc committee on the SABC, which had damning findings on Muthambi.

However, while the situation has improved, the word that still comes to mind to describe the ANC MPs' treatment of Cabinet members is deference, rather than scrutiny.

Just over five years and three communications ministers later, we once again have a minister who appears to unduly involve herself in appointment processes and in the process tries to subject Parliament to her will.

Guns blazing

Last month, while Stella Ndabeni-Abrahams was still temporarily relieved of her duties as communications minister after she was pictured contravening Level 5 lockdown regulations, the committee compiled a shortlist of 10 names to fill the six vacancies on the Independent Communications Authority of South Africa (Icasa) council.

The relevant legislation requires Ndabeni-Abrahams to select six names from the shortlist.

Instead, she informed Parliament that she would only appoint four, and that the committee must draw up a new shortlist for the remaining two names.

According to the legal opinion the committee obtained, she didn't have a leg to stand on.

Obviously, the opposition MPs came out guns blazing during Tuesday evening's meeting.

DA MP Phumzile van Damme said: "She [Ndabeni-Abrahams] has no idea what she's doing and she must be removed from her position."

When Van Damme said things like that during the reign of Muthambi and Hlaudi Motsoeneng, their bootlickers who masqueraded as MPs histrionically belittled her. Not that it ever stopped her.

However, on Tuesday evening, committee chairperson Boyce Maneli just dryly remarked that the matter of Ndabeni-Abrahams' removal wasn't within the purview of the committee. And that was that.

READ | Communications committee asserts itself after Ndabeni-Abrahams' attempts to subvert its authority

Both Van Damme and EFF MP Fana Mokoena said something to the effect that they hadn't seen anything like this before. Allowing for politicians' proclivity for hyperbole, keep in mind that both these MPs served on the ad hoc committee that investigated the SABC board, and are thus well versed in ministerial overreach in this sector.

IPID head

The ANC MPs on the committee didn't join in the sharp criticism directed at their comrade, but more importantly, they didn't attack the opposition or tried to deflect. They did their job. Which is to ensure that the executive does theirs within the ambit of the law.

A win for parliamentary oversight.

The following day saw another win.

In March, the Portfolio Committee on Trade and Industry had a meeting which could easily have taken place in the Zuma-era of parliamentary depravity. The National Lottery Commission (NLC) appeared before the committee, amid a slew of allegations of corruption regarding the money it paid out to beneficiaries.

DA MP Mat Cuthbert wanted to see the beneficiary lists. The NLC refused, saying it would be illegal to provide it, even though they have published it in previous years.

Instead of insisting on accountability, the ANC MPs - who had one of their whips, Bheki Radebe, who doesn't serve on the committee, at the meeting - dismissed the allegations as "noise" from the media, expressed their concern about a "third force" and praised the NLC.

Cuthbert didn't relent in his pursuit of the lists and, during Wednesday's meeting, after obtaining a legal opinion from Parliament's legal services, the committee agreed that the NLC must provide it with the beneficiary lists.

However, while the trade and industry committee finally did its job, the Portfolio Committee on Police met where a failure of parliamentary oversight was laid bare.

The committee confirmed its support for Police Minister Bheki Cele's nomination for the Independent Police Investigative Directorate (IPID) executive director.

After the process, committee chairperson Tina Joemat-Pettersson proudly declared: "There is no way we've simply rubber-stamped the nominee".

This seems a rather rosy take on events.

It took the committee just under two hours to listen to Cele's briefing, deal with two legal opinions and consider whether to confirm Jessica Ntlatseng's nomination. Ntlatseng's credentials were hardly discussed.

It appeared that the ANC MPs simply didn't need anything other than Cele's word that Ntlatseng is the right person for the job.

Keep in mind that Cele has a particularly large stake in who leads the police watchdog – he is a former national police commissioner. The DA and FF Plus objected, more due to the process than to candidate (who they didn't interview and only know through the documents Cele submitted).

Blind obedience

The ANC MPs slammed the MPs who opposed the nomination, saying they did not support women's emancipation, were not honest, and didn't want an IPID head so that a forceful eviction in Cape Town, in which a naked man was removed from his residence, would not be investigated properly. They also accused them of being spokespeople for Corruption Watch and the Helen Suzman Foundation.

The blind obedience with which the ANC MPs processed teetotaller-in-chief Cele's diktat, reminded of the process which led to the post being vacant in the first place.

In early 2019, Cele informed then IPID executive director Robert McBride that he did not intend renewing his appointment. Parliament first had to consider whether his appointment should be renewed. Cele made it clear that he wanted the independent-minded McBride gone, and the ANC MPs on the previous Portfolio Committee on Police, from the start of the process, made it clear that Cele's wish is their command.

And so the post became vacant on 28 February 2019 when McBride's term ended.

Section 6(5) of the IPID Act states the minister "must" fill the vacancy "within a reasonable time, not exceeding a year". But by 1 March 2020, Cele had not nominated a candidate.

Instead of throwing the book at Cele for being in contravention of the law, the committee on two occasions granted him an extension.

As it turns out, the committee didn't have the power to grant Cele those extensions.

"The aforementioned section of the IPID Act is mandatory and must be strictly followed by the minister," read the legal opinion drafted by Parliament's chief legal advisor, advocate Zuraya Adhikarie, one of the legal opinions discussed by the committee on Wednesday.

"The use of the word 'must' in section 6(5) of the act denotes that there is no discretion on the part of the minister in respect of the exercise of the mandatory power that is provided in the relevant section."

"Most importantly though, the section does not clothe Parliament with the power to extend the period. The principle of legality directs that organs of state may only exercise a public power that has been given to them in terms of the law and that power must not exceed its defined scope.  

"Notwithstanding, it is the obligation of Parliament, by virtue of its oversight authority to hold the minister accountable if there is noncompliance with any act."

In mitigation for the committee, the act is silent on what to do when the minister – and not just any minister, the minister of police, acts unlawfully. And they will, per the recommendation of the legal opinion, insist that Cele explain himself on why he acted unlawfully. Another positive is that the committee will consider amending the legislation to improve the appointment process.

But it should never have come to this. It is under their watch that the police minister was in breach of the law in the appointment of the head of the very body that must act as a bulwark against police overreach.