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Pretoria - Public Protector Thuli Madonsela misdirected herself in how she wanted Parliament to deal with her finding of maladministration and conflict of interest in a multimillion-rand lease against the elections boss, MPs across the party political spectrum agreed on Thursday.
And there was no way they could do anything about her request.
By asking Parliament’s Speaker to consult with the Independent Electoral Commission (IEC) on whether to refer the matter to the Electoral Court, the public protector had unconstitutionally and unlawfully breached the separation of powers between the legislature and judiciary.
Parliamentary law adviser Vuyokazi Ngcobozi told MPs there were several “challenges” with the public protector’s request to Speaker Max Sisulu to deal with her findings against IEC chairwoman Pansy Tlakula.
“The public protector does not have the authority to tell the Speaker of Parliament how to process her report.
“Parliament cannot be dictated to by the public protector how to conduct (its business),” she said.
The Public Protector Act allows Madonsela to refer her findings to Parliament, including for an urgent intervention from the National Assembly.
But further questions emerged over a second letter Madonsela had written, indicating: “With respect, it was never my intention to have the report tabled in Parliament.”
This left MPs at a loose end as to how they were meant to handle this - unless a matter is tabled, the National Assembly cannot deal with it.
ANC MP Johnny de Lange said the “width of the naivete” was “amazing” and “far-fetched”.
“There is no way we can give any effect to it,” he said.
In addition, Parliament’s law advisers pointed out that the Electoral Court had no jurisdiction because IEC chairwoman Pansy Tlakula was chief electoral officer, or the accounting officer in employment of the IEC, when the IEC head office lease was finalised.
This echoed arguments Tlakula had submitted as part of the ad hoc committee’s considerations.
The Electoral Court can only deal with claims of misconduct, incapacity and the like against IEC commissioners, including the chairperson, although the court may recommend removal from office, which then must be supported by a majority in the National Assembly before the president is asked to act on it.
Tlakula has maintained she did “not accept as correct” the public protector’s findings on her conflict of interest as she had not gained any personal gain.
A draft ad hoc committee report is expected to point out the ad hoc committee resolved “it is unable to act because to do so would be unlawful and unconstitutional”, suggested by DA MP James Selfe.
The report may suggest that other institutions take remedial action over the lease saga and should update Parliament, Selfe added.
The ad hoc committee is expected to meet early next week to adopt its report, which will then be sent to the National Assembly for adoption.