One of the most significant “events” in the post-apartheid political life of this country was the Commission of Inquiry into State Capture, chaired by (then) Deputy Chief Justice Zondo. Its findings are extensive and touch on many aspects of public life in South Africa, not least the constitutional responsibilities and duties of those who exercise public power in the national executive and legislature. Indeed, the Commission held hearings at which much evidence was presented about the constitutional duty of Parliament to hold the executive to account. The Commission concluded in its final report that Parliament had generally failed to discharge its obligations, for a multitude of reasons, and Justice Zondo recommended the implementation of a raft of measures which might remedy these shortcomings.
This contribution to the review of the work of the Sixth Parliament (2019 to 2024) sets out at a high level the constitutional and institutional framework in which it could be expected that Parliament would conduct itself to fulfil its constitutional mandate in this aspect of its work. It does so on the basis of work that I did in this sphere some 20 years earlier in respect of which I gave oral evidence to the Commission. It then summarises, again at a very high level, the responses of the Zondo Commission to the problems identified. It does not investigate the extent to which, if at all, Parliament has responded positively to remedy some of its faults identified: indeed, from a number of reports which have come to my attention, it appears to have done nothing concrete, but I make no argument based on such surmises. There may be others who could do so with greater authority.
The Constitutional foundation
The single most important provision on which much of my argument rests is to be found in the Constitution’s foundational values which demand “accountability, responsiveness and openness” (in section 1(d)) in respect of the exercise of public power. This provision demanded a radical rethink and realignment of the role of Parliament in its relationship with Cabinet and the rest of the executive, central to which was the obligation, spelt out repeatedly in the Constitution, to exercise oversight and require accountability. This broad value is bolstered by several other constitutional provisions, but specifically as regards Parliament in the obligation created by s 55(2) of the Constitution which provides as follows:
“The National Assembly must provide for mechanisms - (a) to ensure that all executive organs of state in the national sphere of government are accountable to it; and (b) to maintain oversight of- (i) the exercise of national executive authority, including the implementation of legislation; and (ii) any organ of state.”
The Speaker of Parliament initiated from 1994 a range of investigations to seek to realise this vision, and to equip Parliament to fulfil its duties, in an attempt to clarify and propose greater detail of the legislature’s obligations under section 55 of the Constitution. I was commissioned to provide a report on the constitutional obligations of Parliament in this sphere, based on comparative research (in which I was assisted by colleagues Saras Jagwanth and Fred Soltau). This resulted in the ‘Corder Report’, which provided the primary basis for my evidence to the Zondo Commission. The final report was submitted to the Speaker by July 1999.
Extracts from the Executive Summary are set out below where relevant to the present exercise:
“Introduction
This report addresses the following main points.…the meaning of ‘oversight’ and ‘accountability’ in relation to the constitutional roles of the National Assembly (NA) and the National Council of Provinces (NCOP); an overview of and the problems with the existing procedures for dealing with reports submitted to Parliament; and recommendations about mechanisms and procedures that can be put in place to realise the constitutional obligation of parliamentary oversight of the executive. More specifically we look at the nature of reporting to Parliament and make detailed recommendations on the content of reports and the manner in which reports must be dealt with upon their receipt by Parliament. In this regard we make recommendations dealing with both legislation and structures that need to be put in place to give effect to Parliament’s obligations under the Constitution; and an analysis of the ways in which Parliament can ensure accountability of constitutional institutions while at the same time respecting their independence. Here too we recommend both legislation and the establishment of structures.
Accountability and oversight
Basically, accountability means ‘to give an account’ of actions or policies, or ‘to account for’ spending and so forth. Accountability can be said to require a person to explain and justify - against criteria of some kind - their decisions or actions. It also requires that the person goes on to make amends for any fault or error and takes steps to prevent its recurrence in the future. A condition of the exercise of power in a constitutional democracy is that the administration or executive is checked by being held accountable to an organ of government distinct from it.
Oversight refers to the crucial role of legislatures in monitoring and reviewing the actions of the executive organs of government. The term refers to a large number of activities carried out by legislatures in relation to the executive. In other words, oversight traverses a far wider range of activity than does the concept of accountability.
Section 42(3) of the Constitution sums up in a nutshell the essential functions of the NA. ‘The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this...and by scrutinizing and overseeing executive action.’ We are of the view that section 55(2)(a) sets obligatory minimum standards of accountability for executive organs of state in the national sphere of government. The NA must set up mechanisms to hold them accountable.
The mention of oversight in section 55(2)(b) describes the broader and more flexible activity of a legislature in relation to the executive. Oversight is a function of a legislature which flows from the separation of powers and the concept of responsible government…. . Foremost among these is the power to hold the executive accountable. Monitoring the implementation of legislation goes to the heart of the oversight role. The manner in which the oversight function is carried out will vary according to the circumstances.
The Corder Report shows how s 55(2) allows for different levels of reporting in respect of different bodies. The list of bodies that Parliament should oversee covers an extremely wide range and a policy decision needs to be made regarding the feasibility and desirability of Parliament holding all these bodies to account. We have made a preliminary recommendation that the financial accountability of bodies that are presently accountable under the Public Finance Management Act should also be extended to other areas including the implementation of policy. We have recommended that the list of bodies that are accountable could be extended on an incremental basis taking into account Parliament’s resource constraints.
The oversight role of the NCOP
While the Constitution does not explicitly require the NCOP to perform an oversight function, leaving this role mainly in the hands of the NA, various provisions leave no doubt that the NCOP must exercise oversight as defined by its constitutional mandate. This is clear from provisions such as ss 66(2) and 92 of the Constitution. The NCOP’s oversight role is limited to issues which affect provinces on a national level and inter-governmental relations. In particular, the Constitution envisages the NCOP overseeing any executive interventions in terms of ss 100 and 139.
Revising present arrangements
In the light of Parliament’s constitutional obligations and present practices, we propose [legislation which] would provide for amendatory accountability (which requires that where deficiencies have been uncovered, they be corrected and wrongs be redressed) and prescribe standards, content and format for reporting. The procedure on receipt of reports would be that: all reports be received by a Central Receiving Office (a joint NA-NCOP office we recommend be established to coordinate the receipt, indexing and distributing reports received); all reports be acknowledged and indexed; there is a duty to review all reports received; reports must be responded to in certain circumstances as per our detailed recommendations in this regard; Parliament must be informed as outlined further below; and there is a procedure for follow-up action by committees.
Summary of Recommendations
In summary, we have made the following recommendations: (a) legislation in the form of an Accountability Standards Act and an Accountability and Independence of Constitutional Institutions Act; (b) Amendment to the Rules of the NA and the NCOP for regulation of reporting to parliamentary committees; and (c) the establishment in Parliament of a Standing Committee on Constitutional Institutions.”
The reference to an Accountability Standards Act (ASA) which lies at the core of the Report, needs further explanation. The ASA was envisaged
"...as a complement to the Public Finance Management Act to serve the following purposes: (i) partially to fulfil the NA’s constitutional obligations for establishing accountability mechanisms; (ii) to set the broad framework and minimum requirements for accountability; and (iii) to provide an authoritative and mandatory framework within which committee members can perform their oversight task. While effective oversight activity is ultimately dependent on the willingness of members of Parliament to perform it, the proposed legislation will go some way towards providing the legal back-up and justification for the exercise of this function and in particular to encourage committee members who belong to the majority party are uncomfortable with and fear the consequences of calling ‘their’ minister to account.
The Act should provide for the following:
(i) Amendatory accountability [which] refers to the duty, inherent in the concept of accountability, to rectify or make good any shortcoming or mistake that is uncovered Presently there is no effective machinery by which Parliament can compel the executive or an organ of state to answer to it. The Constitution makes accountability to Parliament mandatory. Accountability is therefore removed from the realm of vague political convention to that of concrete constitutional law. Interaction between branches of government should be governed by the principles of co-operation set out in Chapter 3 of the Constitution, but [the ASA] should oblige executive and organs of state to answer and submit to scrutiny, as well as imposing on them an obligation to redress grievances. This means that remedial action should be authorised for exposed errors, defects of policy or maladministration. This form of amendatory accountability is essential to an effective system of reporting.
What mechanisms can be put in place to realise amendatory responsibility in the face of what may be a recalcitrant and unrepentant executive? Firstly, the question of who is accountable needs to be answered. Ministers are collectively and individually accountable to Parliament (see the… discussion of ministerial responsibility in Chapter III). The extent to which they are held accountable for their failings is an intensely political question. However, where those in political office have made themselves guilty of corruption or financial misconduct, responsibility should be legislated, just as it is in the case of civil servants. In terms of the Public Finance Management Act (PFMA) offences by accounting officers (Heads of Departments or CEOs of institutions) are punishable either by a fine or imprisonment.
The degree to which civil servants should be held accountable is a vexed question. Clearly, junior civil servants cannot be held accountable on issues of policy. In our political system, it is true to say that high-ranking public servants are not merely implementers but also play an important role in advising their Ministers and formulating policy with or for them. It may therefore be that it is appropriate to require more accountability from senior public servants, and not to allow them to shelter behind their Minister as ‘faceless’ public servants. On the other hand, an obvious danger exists that Ministers may attempt to make scapegoats out of their public servants.
...We recommend that a set of principles covering the accountability of senior civil servants and Ministers be included in the proposed legislation. The role of Parliament would be to see that the laws governing the public service are properly enforced and that preventive policies are put in place. In this respect, the work of the Public Protector and the Public Service Commission should be of value in guiding Parliament and alerting it to problem areas.
(ii) Prescribed standards of administrative accountability [The PFMA requirements for accountability were summarised and discussed]. If accountability is to be made effective, it is necessary to set objectives or standards against which performance can be assessed and measured. If this is not done, then Parliament’s oversight role is unclear because there are no identifiable criteria by which to judge the reporting bodies. Consequently, the exercise of oversight becomes difficult and often meaningless.
The PFMA focuses on the basics of financial management and limits itself to financial accountability. It is encouraging that the Act broadens existing reporting requirements.
However other forms of accountability, such as policy implementation and the achievement of objectives, are equally crucial to the accountability function. In this regard the Act contains some provisions aimed at achieving performance management:
Properly utilised, section 40(3)(a) is a powerful tool in the hands of parliamentary committees. Since departments and bodies are now obliged by law to set objectives and detail the extent to which they have achieved them the onus is on Parliament to make use of this information.
[The Corder Report then sets out the potential means of financial accountability in some detail].
Three types of financial oversight activity can be isolated:
(A) Financial and compliance audits determine whether there has been proper financial management, whether financial reports are fairly presented and whether there has been compliance with applicable laws and regulations. This aspect is largely regulated by the Public Finance Management Act and encompasses the work undertaken by the Auditor-General. (B) Management audits seek to determine whether a department or other organ of state is managing its resources in an economical and efficient way. (C) Programme evaluation audits can be used to determine whether a particular programme has delivered the intended results or services and whether the objectives established for the programme have been met.”
[The Report then detailed a number of issues for attention here].
“(iii) Prescribed reporting standards
Accountability in its simplest form is linked to oral and written (or electronic) reports. This should remain one of the main conduits for feeding information to Parliament. But it is obvious that the absence of requirements and guidelines with which written reports must comply results in ineffective accountability. Reports may contain too much information, overwhelming the accounting body with a mass of detail, or may contain too little relevant information to allow assessment of the body’s performance. [The findings of the Browne Commission of Enquiry (Report of the Committee of Enquiry into the Accountability of Public Corporations, Undertakings and Other Institutions) of 1989 were then set out in summary form.]
These recommendations were endorsed. In addition, it was proposed that the Act provide for: - the development of standardised formats for reports; - a requirement that reports contain information which establishes the quantity and quality of outputs; - the development of performance criteria in terms of which the report is submitted; - all reporting bodies to submit written reports to Parliament timeously so that there is an opportunity for the reports to be considered (for example, at least 10 days before the relevant committee meeting is to take place); - the mandatory submission of an executive summary of the main points contained in the report; - a prescribed minimum number of copies of the report and the executive summary to be submitted by the reporting body; and - that where findings or recommendations have been made by Parliament with respect to a department or other body’s report that the reporting body must respond to the findings and recommendations formally within a specified time.”
Zondo Commission's final report
The final report of the State Capture Commission dealt sympathetically with these proposals and other evidence presented on the issue of parliamentary oversight and accountability (see Report of the Commission of Inquiry into State Capture 2022, Part VI vol 2, from pp 238 ff). The following extracts exemplify its approach.
After a brief summary of the main points in my 1999 Report, the Commission recorded the following findings and recommendations (paragraph numbers as in the report):
“The “Oversight and Accountability Model” adopted by Parliament
752. Some of the recommendations made in the Corder report were not implemented, including the legislation proposed. Instead, so it appears from a report submitted to the Commission by Associate Professor Richard Calland (“the Calland report"), Parliament commissioned further research. Several years then passed, after which a parliamentary joint committee established a “Task Team on Oversight and Accountability”, whose objective was to develop a “model” for Parliament's oversight function. The task team proposed an “Oversight and Accountability (‘OVAC’) Model”, which was apparently adopted by the Joint Rules Committee and thereafter by the NA and NCOP in 2009. The OVAC Model therefore at face value expresses Parliament's view of how it should go about implementing its constitutional oversight and accountability responsibilities.
753. The Calland report helpfully summarises some of the principal recommendations contained in the OVAC model as follows:
753.1. the establishment of a Joint Parliamentary Oversight and Government Assurance Committee; 753.2. an Oversight and Advisory Section to "provide advice, technical support, coordination, and tracking and monitoring mechanisms on issues arising from oversight and accountability activities of Members of Parliament and the committees to which they belong"; 753.3. development of rules to assist Parliament "further in sanctioning Cabinet members for non-compliance after all established existing avenues and protocols have been exhausted, for example naming the Cabinet member by the Speaker of the National Assembly or the Chairperson of the Council based on a full explanation; 753.4. Improved reporting of committees to the House; 753.5. Ensuring sufficient and appropriate resourcing and capacity to develop specialised committees to deal with issues that cut across departments and ministries; 753.6. Splitting training between legislative and oversight work, and increasing training for members in core competencies, including use and application of the OVAC model and budget analysis, amongst several other competencies; and that 753.7. Parliament’s public participation function be integrated within its overall oversight mechanism.
754. Some of these recommendations have not as yet been implemented. For the present it suffices to note that, both before and after the adoption of the OVAC report, the rules of the National Assembly were adapted to facilitate oversight taking place, primarily in portfolio committees.
1184. Amongst the recommendations made in the Corder report was the enactment of legislation, including an Accountability Standards Act.
1185. In Professor Corder’s evidence to the Commission he expressed the view that legislative reform remains desirable...An Accountability Standards Act would...serve the purposes of (i) partially fulfilling the NA’s constitutional obligations for establishing accountability mechanisms; (ii) setting the broad framework and minimum requirements for accountability; and (iii) providing an authoritative and mandatory framework within which committee members can perform their oversight task.
1186. In his view the Act should provide for “amendatory accountability" which...“refers to the duty, inherent in the concept of accountability, to rectify or make good any shortcoming or mistake that is uncovered. This Act should give strong effect to the constitutional requirements of accountability. Presently there is no effective machinery by which Parliament can compel the executive or an organ of state to answer to it. But as has been highlighted the South African Constitution makes accountability to Parliament mandatory. Accountability is therefore removed from the realm of vague political convention to that of concrete constitutional law. Interaction between branches of government should be governed by the principles of co-operation set out in chapter 3 of the Constitution, but [the] Act should oblige executive and organs of state to answer and submit to scrutiny, as well as imposing on them an obligation to redress grievances. This means that remedial action should be authorised for exposed errors, defects of policy or maladministration. This form of amendatory accountability is essential to an effective system of reporting.”
1187. Prof Corder also said this: “While much work would be needed to give appropriate and effective shape to the concept of “amendatory accountability”, I would argue that this is essential. At present there seem to be few if any mechanisms in place, short of the tabling of a motion of no confidence in either the President or his Cabinet (see section 102 of the Constitution), an admittedly radical step, which should not be lightly countenanced. What is necessary are steps short of a motion of no confidence, through which individual or groups of ministers may be required to take amendatory action, sufficient to satisfy Parliament.”
1188. The official submission of the ANC to the Commission on parliamentary oversight said the following: The ANC proposes that the recommendations of the Hugh Corder Report be considered to further strengthen parliament's accountability and oversight model, in particular a key recommendation that accountability also requires that a person, in addition to explaining and justifying decisions and actions, goes on to make amends for any fault or error and takes steps to prevent its recurrence in the future.
1189. The Commission recommends that Parliament should consider whether it supports the principle of “amendatory accountability" and, if it does, whether it would be desirable to give detailed substance to this principle in an Act of Parliament, along the lines suggested in the Corder report. In doing so, it will be necessary for Parliament to consider the implications of the separation of powers between the legislative and executive branches of government under the Constitution. However, the Commission believes that it should not be beyond the ingenuity of Parliament to devise mechanisms which promote responsiveness and effective accountability (in themselves principles...which are entrenched by the Constitution) in a manner which does not infringe the separation of powers.
1190. If Parliament should not be minded to enact legislation of the above type, the Commission is of the view that serious consideration should be given by Parliament to amendments to its own rules, with a view to addressing the problem of ministers who fail to report back to Parliament on what if anything has been done in respect of remedial measures proposed by Parliament or on alternative methods preferred by them to address defective performance highlighted by Parliament.
1191. In particular, the Commission supports the recommendation made in para 4.1.9 of the OVAC model (which, it will be recalled, Parliament adopted in 2009) but has not yet been implemented that: “...Parliament develop rules to assist it further in sanctioning Cabinet members for non-compliance after all established avenues and protocols have been exhausted, for example naming the Cabinet member by the Speaker of the National Assembly of the Chairperson of the Council based on a full explanation.”
1192. Also worthy of consideration by Parliament is the suggestion made by Prof Corder in his affidavit that, with the support of a majority of members of a portfolio committee, a portfolio committee could put a minister to terms in respect of remedial action, and could thereafter, through the Speaker intercede with the President, as head of the … national executive, in the event of non-compliance. The Leader of Government Business could also play a role in such a process.
1294. It is recommended that Parliament should consider whether more representatives of opposition parties should be appointed as chairs of portfolio committees.”
Conclusion
As stated at the outset, I do not know what steps, if any, have been taken by Parliament to “consider”, let alone implement, the Zondo recommendations. It is encouraging to read (in para 1188 above) that the ANC supports the proposals mentioned there, but words are not enough. Given the imminence of the general election, it seems highly unlikely that anything concrete will emanate from Parliament in this regard.