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[2019] ZAWCHC 69
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Bongo v Parliament of South Africa and Others (21955/2018) [2019] ZAWCHC 69 (19 June 2019)
Republic of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No. 21955/2018
Before: The Hon. Mr Justice Binns-Ward
Date
of hearing: 13 June 2019
Judgment:
19 June 2019
In
the matter between:
BONGANI
THOMAS
BONGO
Applicant
and
THE
PARLIAMENT OF SOUTH
AFRICA
First
Respondent
THE
PARLIAMENTARY JOINT COMMITTEE
ON
ETHICS AND MEMBERS’
INTERESTS
Second
Respondent
BALEKA
MBETE
N.O.
Third
Respondent
THANDI
RUTH MODISE
N.O.
Fourth
Respondent
PENELOPE
NOLIZA TYAWA
N.O.
Fifth
Respondent
FATIMA
EBRAHIM
N.O.
Sixth
Respondent
AMUSEN
SINGH
N.O.
Seventh
Respondent
NKOSIYAKHE
AMOS MASONDO
N.O.
Eighth
Respondent
JUDGMENT
BINNS-WARD J:
[1]
The applicant, who is a member of the
National Assembly and one-time Minister of State Security in the
Cabinet of former President
Zuma, is currently the subject of a
parliamentary investigation into allegations that he attempted to
bribe an employee of Parliament
who was engaged as the evidence
leader in hearings being conducted by a parliamentary committee into
the affairs of three state
owned enterprises, Eskom, Transnet and
Denel. He denies the allegations. He seeks in the current
proceedings to have
the investigation set aside; alternatively, to
obtain a positive interdict directed at expediting the completion of
the current
phase of the investigative procedure.
[2]
Eight respondents were cited in the
application. The first respondent is the Parliament of the
Republic of South Africa.
The second respondent is the
Parliamentary Joint Committee on Ethics and Members’
Interests. The third and fourth respondents
are the Speaker of
the National Assembly and the Chairperson of the National Council of
Provinces in their capacities as such.
The fifth respondent is
the Acting Secretary of Parliament. The sixth respondent is the
Acting Co-Registrar of Members’
Interests. The
co-chairpersons of the second respondent were cited as the seventh
and eighth respondents, respectively.
[3]
The investigation into the allegations
against the applicant is being conducted by a sub-committee of the
Parliamentary Joint Committee
on Ethics and Members’ Interests
(‘the sub-committee’). The investigative
proceedings are governed by rule 10
in the Code of Ethical
Conduct and Disclosure of Members’ Interests for Assembly and
Council Members (‘the Code’).
[4]
The Code, which is published on the
Parliamentary website,
[1]
is administered by the Joint Committee established by Joint Rule 121,
as provided for in Part 11 of the Joint Rules made in
terms of
s 45 of the Constitution. The purpose and scope of the
Code are set out in rule 2 in the Code. It ‘is
intended
to provide a framework of reference for Members of Parliament when
discharging their duties and responsibilities’.
It
professes to outline ‘the minimum ethical standards of
behaviour that South Africans expect of public representatives,
including upholding propriety, integrity and ethical values in their
conduct’. And its stated purpose is ‘to
create
public trust and confidence in public representatives and to protect
the integrity of Parliament’.
[5]
Breaches of the Code that are susceptible
to investigation and report to the House by the Committee include
breaches by members
of their oaths of office to uphold the law,
failures by members to act in accordance with the public trust placed
in them and failures
by members to maintain public confidence and
trust in the integrity of Parliament and thereby engender the respect
and confidence
that society needs to have in Parliament as a
representative institution.
[2]
In the event that the Committee considers that a member is guilty of
any infringement of the Code of the nature just mentioned,
it must
recommend a sanction to be imposed by the House which must be greater
than any of the following (i) a reprimand in the
House; (ii) a fine
not exceeding the value of 30 days’ salary; (iii) a reduction
of salary or allowances for a period not
exceeding 30 days; or (iv)
the suspension of certain privileges or a Member’s right to a
seat in Parliamentary debates or
committees for a period not
exceeding 30 days.
[3]
[6]
The aforementioned investigative process
and the imposition of any sanction upon a member that might follow
pursuant thereto are
matters of Parliamentary business and, in that
sense, are part of the internal self-regulated governance mechanisms
of the legislative
arm of state. In matters in which the
conduct constituting a breach of the Code involves the commission of
a criminal offence
- as would the allegations of bribery against the
applicant, if they were to be established - the internal processes of
Parliament
are not substitutes for, or alternatives to, public
prosecution of the offender under the criminal justice system.
This serves
to underscore the essentially domestic character of the
investigative and disciplinary procedures under the Code, albeit that
they
are enforceable in terms of the constitutional powers of
Parliament.
[7]
The alleged act of attempted bribery by the
applicant was reported to have occurred on 10 October 2017,
eight days before the
applicant’s appointment to the Cabinet.
The matter was formally reported to the acting Secretary of
Parliament on 26 October
2017. The applicant says that he
was first informed of the allegations against him on 20 February
2018 about four months
later. A hearing into the matter was
conducted by the sub-committee on 5 September 2018, at which the
subject of the
alleged bribery attempt and one other witness gave
oral evidence. After the conclusion of the hearing on that
date, the applicant
was informed that the sub-committee wished to
hear the evidence of four other witnesses in the matter. He was
advised of
the identity of the additional witnesses, and informed
that he would in due course be placed in possession of copies of
their witness
statements and given the date when the hearing of oral
evidence would resume.
[8]
The applicant registered his objection to
any resumption of the oral hearing and protested that the intended
additional witnesses
were not in a position to give admissible
evidence that could advance the investigation in any relevant way.
He also demanded
a transcript of the proceedings on 5 September.
The sub-committee initially declined to provide a copy of the
transcript.
It gave as its reason that the transcript would
only be prepared at the conclusion of the oral hearing. When
the applicant
persisted with his demand, the sub-committee relented
and indicated that facilities would be made available for him to have
the
transcription done at his own expense. He was told that the
transcribing would have to be done at a place to be made available
within the Parliamentary precinct, and subject to confidentiality
undertakings by the transcribers to be privately appointed by
the
applicant.
[4]
The applicant was also informed that he would be required to make
arrangements for the transcription be done by 26 October
2018.
It bears mention that in pressing his demand for a transcript before
the completion of the oral evidence, the applicant
stated that he
also needed the transcript for the purpose of judicial review
proceedings that he might be advised or decide to
bring.
[9]
The current litigation was commenced on
28 November 2018, when the applicant filed his notice of motion,
in which he applied
for an order in the following terms:
1. reviewing, rescinding and setting aside the hearing
and deliberations to date of [the Parliamentary Joint Committee on
Ethics
and Members’ Interests’] … sub-committee
appointed jointly by Third Respondent and Fourth Respondent [i.e. the
Speaker of the National Assembly and the Chairperson of the National
Council of Provinces] … to hear evidence, to consider
and
determine a complaint concerning Applicant arising out of an
allegation which allegedly took place on 19. 10. 2017, which hearing
was held and concluded on 05. 09. 2018.
in the alternative
2.
ordering and directing
Second Respondent through its sub-committee to comply forthwith with
the provisions of Rule 10.7.5.2.11 of
the Code of Ethical Conduct and
Members’ Interests (“the Code”) within a period of
not more than 10 (ten) days
calculated from and including the date
after which an Order is made in this matter by this Honourable Court,
alternatively
within a time period to be determined by this Honourable Court and to
do so by making its recommendations to the full Committee
of Second
Respondent.
3.
ordering and directing
Second Respondent to comply forthwith with the provisions of Rule
10.7.5.2.13 (first part) of the said Code
and to do so by furnishing
to Applicant a copy of the recommendations of its sub-committee in
the form and as soon as received
by Second Respondent from its
sub-committee and further to do so within the same time period as is
set out in paragraph 2 above.
4.
ordering and directing
Second Respondent to furnish to Applicant a full and complete record
of all proceedings heard before its
sub-committee, including all
documents relating to the constituting, mandate and procedure of the
sub-committee, together with
all and any supporting documentation.
5.
ordering and directing
Second Respondent to forthwith to set down a date upon which Second
Respondent will consider the recommendations
of its sub-committee and
to do so subject to what is provided in paragraph 6 below.
6.
ordering and directing
Second Respondent to comply with the provisions of Rule 10.7.5.2.13
(second part) of the said Code and to
do so by informing Applicant of
the date upon which Second Respondent will consider the
recommendations of its sub-committee
and to give such notice to
Applicant of not less than 10 days before the said date.
[10]
The material basis for the applicant’s
complaint is the delay that he says has attended the enquiry into the
allegations against
him. He points out that the timeframes
provided in terms of the Code have not been complied with, and
asserts that the delay
has exacerbated the reputational harm that he
says has incurred consequent upon the protraction of the enquiry
process. In
this regard he laid emphasis on rule 10.2.1 of the
Code, which provides in respect of the procedure for the
investigation of complaints
that the ‘procedure is based on and
intended to be guided by the principle of promptness, fairness and
consistency’.
[11]
It is convenient, having regard to the
formulation of the relief sought in terms of the applicant’s
notice of motion, to preface
the discussion of his claim with a
summary of the applicable procedures for the investigation of
complaints as set forth in rule
10 of the Code. The registrar
of members’ interests is required to inform members of any
relevant complaint laid against
them within seven days of the receipt
thereof.
[5]
The rule contemplates that any such complaints should be addressed by
the complainants to the registrar in writing.
The member is
expected to respond to the complaint, also within seven days.
[6]
If he or she fails to do so, the investigation proceeds regardless.
If there is a response from the member, the complaint
must be
assessed by the registrar, who must consult with the chairperson of
the Committee. The registrar must thereafter
make a
recommendation, which may include recommending ‘that a further
investigation be instituted with a suggested procedure
to be followed
with an elaboration of issues and facts to be investigated’
together with an indication of ‘who will
conduct the
investigation and the duration of such a proposed investigation’.
The Committee then decides, upon
a consideration of the registrar’s
report in closed meeting, how the investigation should proceed,
including whether a hearing
should be conducted. There are no
prescribed time periods in respect of what may be done between the
time afforded for a
response by a member to an allegation that the
Code has been infringed and the commencement of any hearing into the
alleged infringement
that may follow. The Code also does not
contain any express limitations as to the time period within a
hearing must be completed.
[12]
Rules 10.7.1 to 10.7.5 of the Code regulate
the conduct of investigative hearings in respect of complaints
against members of Parliament.
A hearing may be convened on 10
days’ notice to the affected member. A sub-committee of
the Committee is established
to conduct hearings under the Code.
The proceedings are held in closed session. All proceedings
before the sub-committee
are required to ‘be recorded in
full’. Witnesses may be summonsed to give notice at such
hearings on up to 30
days’ notice. The rules provide that
the hearings are to be conducted on an inquisitorial basis, and
‘while the
Sub-committee has the discretion regarding [the]
weight to be attached to different forms of evidence and the extent
of cross-examination
of witnesses the minimum standards of justice
and fairness must be maintained’.
[13]
Upon the conclusion of the hearing, the
sub-committee is required, in terms of Rule 10.7.5.2.11 (referred to
in paragraph 2 of the
notice of motion), to make recommendations to
the full Committee in respect of the findings to be made in respect
of the investigation.
The recommendations must set out ‘all
different views’ of the sub-committee’s members.
Rule 10.7.5.2.13
(referred to in paragraphs 3 and 6 of the notice of
motion) prescribes that ‘a copy of the recommendations of the
Sub-committee
must be given to the Member concerned and the Member
concerned should be informed of the date that the Committee will
consider
the recommendations of the Sub-committee’.
[14]
In the current matter the subject of the
alleged bribery attempt was the person who ordinarily performed the
functions of the registrar
for the purposes of rule 10 of the Code.
As the complainant, he was obviously disqualified from doing so in
this case.
It was accordingly necessary for a substitute to be
engaged to fulfil the role. The bureaucratic processes entailed
in appointing
a substitute caused some delay in the initiation of the
aforementioned procedures for the processing of the complaint in
terms
of the Code. It also complicated the initial formal
reporting of the complaint.
[15]
Counsel did not address in argument the
basis upon which judicial review relief as sought in terms of
paragraph 1 of the notice
of motion was sought or might be granted in
this case. They did not address the question whether it fell to
be approached
as an application for the judicial review of
administrative action in terms of the
Promotion of Administrative
Justice Act 3 of 2000
or as a legality review. It ultimately
became unnecessary to make any determination as to its proper
characterisation. This
came about because the applicant’s
counsel indicated he would not press for relief in terms of paragraph
1 of the notice
of motion when I put to him at the outset of his
argument the considerations (i) that it was evident that the
internal parliamentary
processes concerned were still far from
completed, and it was well established that the courts will, save in
exceptional cases,
not intervene in parliamentary processes until
they have run their full course (see
Doctors
for Life International v Speaker of the National Assembly and Others
[2006] ZACC 11
,
2006 (6) SA 416
(CC),
2006 (12) BCLR 1399
(CC) at
paras. 68-70
[7]
);
and (ii) that any contention by the applicant that
non-compliance by the sub-committee with the procedural provisions of
the Code had vitiated its investigation was something that he could
urge before the Committee (and if unsuccessful there) before
the
House, and that he had not demonstrated why these internal remedies
should not first have been exhausted before the court was
approached.
[16]
The effective abandonment of the claim for
the relief sought in terms of paragraph 1 of the notice of motion was
well advised.
[17]
In my judgment there is also no merit in
the claim for interdictory relief that was sought in the alternative
to the review.
The relief sought in that regard would
effectively require the sub-committee to abandon its intention to
hear further evidence
and compel it to report forthwith to the
Committee on the basis only of the evidence that it has already
heard. The applicant
has not established any right to such
relief.
[18]
Moreover, the applicant’s complaint,
based as it is on the allegedly prejudicial effect of the delay in
finalising the process,
is rather ironic in the circumstances.
It is evident from the answering affidavit deposed to by the sixth
respondent, who
is the acting registrar appointed to stand in as
registrar for the purposes for the investigation because of the
complainant’s
conflict of interest, that the hearing of further
evidence has been postponed pending the determination of the
applicant’s
application to court. The applicant’s
own conduct has therefore materially contributed to the delay in
finalising the
investigation. The decision not to proceed
further with the investigation until the court had decided the
review/ interdict
application was understandable in my view, for no
point would be served by proceeding in the face of the possibility
(remote as
it might seem with the wisdom of hindsight) that the
applicant might succeed in obtaining the review and setting aside of
the investigative
process, or an interdict effectively excluding the
leading of any further oral evidence before the sub-committee.
[19]
Earlier delays in the process, which
admittedly did not proceed with the expedition contemplated in the
ideals recorded in
rule 10.2.1
in the Code, were, as mentioned, due
to the need for someone to appointed to stand in as registrar for the
complainant. The
process could not begin until such appointment
had been made, for in the peculiar circumstances of this case the
person who ordinarily
would have fulfilled the role of pro-forma
prosecutor happened also to be the complainant.
[20]
In any event I do not read even those time
periods expressly prescribed for the various stages of the
investigative process in terms
of the Code as peremptory, in the
sense that a failure for any reason to comply with them should,
without more, invalidate the
process. Having regard to the
purpose and scope of the Code, it is plainly more material that the
substance of any alleged
infringement be determined upon
investigation, than that the investigation should be undertaken with
strictly undeviating adherence
to the ‘principle of
promptness’.
[21]
Whilst it is conceivable that in an extreme
case the effect of delay on the member subject to investigation might
be so unfair as
to vitiate the process, whether that were actually so
in the given case would depend on the circumstances. Fairness
is a
concept that does not lend itself to determination in the
abstract. It has to be weighed with regard to a given context;
cf. e.g.
Joseph and Others v City of
Johannesburg and Others
[2009] ZACC 30
;
2010 (3) BCLR 212
(CC);
2010 (4) SA 55
at para. 56. And if the
applicant were able to make out a case that the sub-committee’s
investigation should be invalidated
by delay, as to which it is
preferable that I express no view, it is a case that he should first
make out, if necessary, to the
full Committee; and should he fail
there, to the House.
[22]
The interdictory relief sought by the
applicant in the current case seeks in effect to prevent the
sub-committee from hearing any
further evidence before submitting its
report to the Committee. In this respect, he complains not only
of the attendant delay
involved if further evidence is heard, but
also that the evidence to be led would be irrelevant or
inadmissible. It is for
the sub-committee, not this court, to
determine the evidence that should be adduced and to decide on its
admissibility and the
weight to be attached to it.
[23]
For all these reasons the application will
be dismissed.
[24]
The seventh and eighth respondents failed
to file the record of proceedings for the purposes of the review
timeously or within the
period directed by the court in terms of an
order taken by agreement between the applicant and the respondents.
The respondents
also omitted to deliver their answering papers within
the period directed in terms of the court order. Applications
for the
condonation of such non-compliance were made. The
applicant opposed both applications. No point was served by his
opposition
to the first application because the filing of the record,
albeit out of time, was at his instance and for his benefit. An
adequate explanation was given for the late delivery of the answering
papers. The condonation application was not brought,
however,
as it should have been, as soon as it became evident that the
respondents would not be able to comply with the pertinent
part of
the court order fixing the time for their delivery. Bringing the
application only when the answering papers were delivered
gave the
unfortunate impression of a cavalier disregard of the importance of
punctilious compliance, especially by the state, with
orders of
court. It has been repeatedly stressed that condonation should
be sought as soon as it is appreciated that it will
be required.
The application for the hearing of the condonation application need
not be set down separately from or before
the hearing of the
principal case, but it should be lodged promptly to show the
applicant’s bona fides. Thus, notwithstanding
that I
consider that the applicant’s opposition to the application for
condonation of the late filing of the record was unreasonable,
no
order will be made as to costs in respect of the condonation
applications.
[25]
The following order will issue:
1.
Condonation
is granted in respect of the late filing by the seventh and eighth
respondents of the record in terms of Uniform
Rule 53(1)(b)
and in
respect of the late delivery of the respondents’ answering
papers.
2.
Subject
to paragraph 3 of this order, the application is dismissed with
costs.
3.
No
order as to costs is made in respect of the respondents’
applications for condonation.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Applicant’s counsel:
D. Kawalsky
Applicant’s attorneys:
De Jager de Klerk Attorneys
Cape Town
Respondents’ counsel:
D. Potgieter SC
Respondents’ attorneys:
The State Attorney
Cape Town
[1]
At
https://www.parliament.gov.za/code-conduct
(accessed
on 14 June 2019).
[2]
See
rule 4.1
in the Code.
[3]
See
rule 10.1.1.3
read with
rule
10.7.7.1
and
10.7.7.2
in the Code.
[4]
The joint committee’s business
is conducted in closed session in terms of the Joint Rules and its
members and staff are
required in terms of Joint Rule 127 to swear
or affirm their commitment to honour the requirements of
confidentiality in respect
of the Committee’s business.
[5]
Rule 10.2.2.4.
[6]
Rule 10.2.2.6.
[7]
I noted recently in my judgment in
Mohlaloga v Speaker
of the National Assembly of the Republic of South Africa
[2019] ZAWCHC 31
(26 March 2019) at para. 18 that ‘The
question in
Doctors
for Life
concerned
intervention by the courts in the legislative process, but the
principles would apply equally in [a] matter …
which engages
Parliament’s statutory oversight function in respect of extant
legislation and an organ of state’.
That observation
about the broader application of the principles enunciated in
Doctors for Life
loc. cit., which
are founded on the constitutional doctrine of the separation of
powers, also holds true in the peculiar context
of the current
matter.