Nongqai Vol 17 No 10 – (45): Parliament and Malanga’s role in following criminal prosecutions

Excerpt (English)

A parliamentary inquiry and a criminal prosecution serve different constitutional purposes and can proceed independently without delay.

Abstract (English)

This article by Advocate Anton Wiid argues that neither Parliament nor the Madlanga Commission constitutes a legal obstacle to ongoing criminal investigations or prosecutions in South Africa. Drawing on the constitutional principle of the separation of powers, the author contends that Parliament, commissions of inquiry, the SAPS, and the NPA each perform distinct functions within the constitutional framework. While parliamentary processes focus on political accountability, criminal proceedings pursue legal accountability through independent investigation and prosecution. The article further discusses the evidentiary limitations of parliamentary testimony in criminal trials and emphasizes that law enforcement authorities are under no legal obligation to suspend their mandates pending the completion of parliamentary or commission processes.

Keywords

Separation of Powers, Parliament, Madlanga Commission, SAPS, NPA, Criminal Prosecution, Constitutional Law, Political Accountability, Criminal Justice System, Evidence, Corruption, Rule of Law

PARLIAMENT AND MADLANGA’S ROLE IN FOLLOWING CRIMINAL PROSECUTIONS

Hypothesis:

“Don’t halt immediate criminal investigations or prosecutions; the buck doesn’t stop with Parliament or the outcome of the Madlanga Commission”.

By Advocate Anton Wiid: a simple observation.

It is perceived that law enforcement paused the investigations of the current corruption cases referred to Parliament (ad hoc) or in this case, the Madlanga Commission. Further assuming they must wait for Parliament or the Commission to complete their mandates first. This is misinformation or a lack of information to the general citizens.

Criminal investigations can’t be delayed. The Principle of the Separation of Powers (trias politica) comes to mind.

In a Constitutional Court ruling, issued by Justice Madlanga: Speaker of the National Assembly v Public Protector (CCT 76 1) [2021] ZACC 28 (11 August 2021), (I paraphrase), the court inter alia, dealt with the issue whether parliament could legally be stopped from exercising its mandate independently.

In essence (paraphrased), the Court affirmed Parliament’s independent authority in probing (in this instance), the fitness for office, of a head of a Chapter 9 Institution Constitution. In this case it was found the court can’t infringe Parliament’s authority to probe the case in casu.

The same principles apply to the executive authority as a separate arm of government within the purview of the Constitution. It would be safe to say that there is no “pause button” for police or prosecutors under South African law.

Think of it as two parallel highways:

• Parliamentary functions are political accountability, ending in impeachment at most;
• The lane of the Criminal Justice System underlines the principle, of the independence of the NPA and role and obligations of SAPS to investigate crime or graft, to empower the state and courts to attain the objective of justice, and to punish if so proved.

The Powers, Privileges and Immunities of the Act of Parliament, compels witnesses to testify, even if it is self-incriminating.

Applying these transcripts will not be permissible as evidence in a criminal court, one of the reasons: it is hearsay at its best. You can’t cross-examine a piece of paper! Those transcripts are relevant and applicable for the purposes of the Ad Hoc and Madlanga fora only. Criminal prosecution must comply with its own rules of evidence as required by Criminal Law and Proceedings, covered under the Constitutional umbrella.

However, when perjury is being committed, i.e. in the ad hoc committee, those transcripts become relevant and admissible in criminal actions.

However, the evidence or criminalistic indicators in those transcripts, could assist further or other investigations to in depended on evidence. If it for example alleged that corrupt payments were made, section 105 of the Criminal Procedure Act, would authorise access to bank accounts in order to prove it or not, in the investigations of fraud or corruption etc.

No legal impediment stands in the way of the SAPS or the NPA initiating the criminal justice process. To delay action pending parallel political or legal proceedings elsewhere in government is not an exercise in prudence, but a forfeited opportunity. The law should take its course. Drive on.

P.S. Don’t blame Zondo for weak actions or no actions . Point the finger at the executive branch.