The legal battle between Defence Minister Lindiwe Sisulu and Parliament’s defence committee deepened yesterday with chief state law adviser Enver Daniels saying that a summons from Parliament on documents not yet before the Cabinet would infringe the constitutional doctrine of separation of powers.
The battle is set to culminate in a meeting today when the committee is expected to decide whether to summons Ms Sisulu and insist that she hand over to the committee two interim reports of the Interim National Defence Force Service Commission.
She has so far resisted supplying the reports, which have variously described service conditions in the defence force as “a ticking time bomb” and “a threat to national security”.
MPs on the committee have insisted that the documents are vital if they are to consider the Defence Force Amendment Bill properly. The bill will establish a permanent National Defence Force Service Commission.
Two legal opinions from parliamentary law adviser Mukesh Vassen have insisted that Parliament has unfettered powers, granted in the constitution, “to summon any person or document”.
An earlier legal opinion from the Ministry of Defence claimed that the withholding of the documents could be justified under executive privilege.
The addition of the opinion from Mr Daniels seems to indicate that Ms Sisulu will refuse to comply with any summons from Parliament, should the committee decide to take that route at its meeting today.
Should the committee decide to exercise its subpoena powers and Ms Sisulu refuses, it would constitute an unprecedented collision between the executive and the national legislature in the democratic era.
In his opinion, Mr Daniels said that in light of the way in which the division of powers between the executive and Parliament was crafted in the constitution, it was his view that parliamentary powers to summon were not unlimited.
He cited several rulings of the Constitutional Court which involved the separation of powers, saying the court had insisted “there is however no universal model of separation of powers and, in democratic systems of government in which checks and balances result in the imposition of restraints by one branch of government on another, there is no separation that is absolute”.
Mr Daniels said that because the interim commission was appointed by the minister, and its reports had not yet served before the Cabinet, Ms Sisulu was justified in withholding them from the committee. He explained further that the Cabinet and not the minister alone had a collective responsibility for making policy, and because the documents had not served before the Cabinet Ms Sisulu could not be summonsed to produce them, as this would infringe the separation of powers.
He said it was the constitutional obligation of the Cabinet to develop and implement policy. Should any conduct impede this then that would effectively be preventing the executive from performing its constitutional mandate.
Democratic Alliance defence spokesman David Maynier MP said that Ms Sisulu was now under serious parliamentary pressure to produce the interim reports. “The fact is that the portfolio committee is in possession of two legal opinions advising that the minister can be compelled to produce the interim reports of the National Defence Force Service Commission.
“The minister must now in my view produce the interim reports or face the very serious prospect of being compelled to do so by Parliament. The question is what is the next step in the process?”
Mr Maynier said the Speaker of the National Assembly, Max Sisulu, “has apparently been briefed on this matter and will be advising the Portfolio Committee on Defence and Military Veterans”.
hartleyw@bdfm.co.za
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THE POLITICAL WEEK AHEAD: Sisulu faces MPs’
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MPs might subpoena Sisulu over report
With acknowledgements to Wyndham Hartley and Business Day.
It all started when Mandela decided to do the Arms Deal without any real or proper consideration of the future needs of the South African National Defence Force (yes, the SANDF actually belongs to all of us and not Mrs Sisulu).
Everything was designed around giving one third of the proceeds of the Arms Deal to the ANC party and political wigs, some big and some medium.
Invariably the more expensive options were chosen or the equipment was not needed at all.
Senior officers in the SA Navy pleased with the Chief of the Navy Wrong Admiral Simple, that the country no longer needed nor could afford to run submarines.
How right was that. The SAN nevertheless bought three submarines at a cost of R10 billion in 2010 Rands and promptly blew up the electronics of one. Three years later it is still sitting on the hard because the SAN cannot afford to repair it at a cost of some R200 million. The SAN doesn't even have R50 million per year to maintain its frigates and submarines. So in any case, for the sake of R200 million, an essentially brand new R3,5 billion submarine will probably never go to sea again. How sad is that.
The SAAF also never needed new 4th generation jet fighters. It had good enough 3rd generation jet fighters in double the quantities it actually needs. So the DoD wasted R20 billion in 2010 Rands on buying Swedish shit that cost further hundreds of millions per year just to keep and not even to fly.
The DoD also decided to buy the latest greatest deep water frigates from Germany for the SAN at double the cost it could have got from the SAN's preferred supplier Spain.
So great and new are these German pieces of shit that certain of the equipment onboard is causing the hulls of these newborns to corrode, all because these German wankers don't know that if one puts stainless steel and mild steel together in salt water it causes a galvanic effect whereby the more susceptible of the two get eaten. And that it exactly what the Indian and Atlantic Oceans are doing to ourR15 billion Rand worth of MEKO-class Valour frigates. And most of the support contracts which otherwise keeps these rusting buckets in the water expired a week ago without being renewed and so not only does the SAN have its support in place, but the dozens of companies involved are without a contract.
The Government of Mandela, the Robber Barons of himself, Mbeki, Modise, et al, thought nothing about lifecycle costs and real long term needs.
The result is that the current Defence Commission describes the SANDF as “a threat to national security".
And indeed it was recently when its members striked and rioted requiring the other great force the South African Police Force now commanded by General Cele and previously command by Chacma Selebi to have to deal with the SANDF rioters. At least they did it then.
But next time when the SANDF members break into the armouries and come out with R1 assault rifles, Bren light machine guns, 40 mm grenade launchers and 60 mm mortars how are the SAPF with their 9 mm parabellums, 12-bore shotguns and possibly R4 assault rifles, going to contain them?
They are not and people are going to die. Some civilians might also die.
And it all started with the Arms Deal and the Robber Barons.
Believe me, this is no bullshit.