ATC170614: Report of the Joint Committee on Ethics’ and Members Interests on alleged breach of the Constitution, dated 14 June 2017

Ethics and Members' Interest

REPORT OF THE JOINT COMMITTEE ON ETHICS’ AND MEMBERS INTERESTS ON ALLEGED BREACH OF THE CONSTITUTION, DATED 14 JUNE 2017

 

Background

 

The Joint Committee on Ethics and Members’ Interests (the “Joint Committee”) received a complaint from Hon Steenhuisen in which he alleged that Hon Mabe breached the Constitution for being sworn in as a Councillor without resigning from Parliament or assuming a seat in the National Assembly without resigning as a Councillor.

The complainant alleged that by so doing Ms Mabe breached clauses 4.1.1, 4.1.2, 4.1.3, 4.1.4 and 4.1.5 of the Code of Ethical Conduct and Disclosure of Members’ Interests.

 

Clause 4.1 of the Code deals with the standards of ethical conduct and provides as follows:

            4.1 Members must:

                        4.1.1 abide by the principles, rules and obligations of this code;

4.1.2  by virtue of the oath or affirmation of allegiance taken by all elected

          members, uphold the law;

4.1.3  act on all occasions in accordance with the public trust placed in them;

4.1.4  discharge their obligations, in terms of the Constitution, to Parliament

          and the public at large, by placing the public interest above their own

          interest;

4.1.5  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; and

Hon Mabe requested an extension to respond to the complaint, which extension was granted. On 13 October 2016, Hon Mabe responded to the complaint. In her response, she advised that the same complaint was raised by the complainant in the National Assembly for a ruling on the matter. Further, that she and her party were awaiting the ruling by the National Assembly. Consequently, she was unable to respond to the complaint.

A report was obtained from the National Assembly and the following is apparent.

At a Joint Sitting of Parliament on 25 August 2016 and at subsequent sittings of the National Assembly, various Members of the Assembly raised on points of order regarding the validity of the membership of Hon Mabe. The relevant Presiding Officer sought legal advice before ruling on the matter.

In a letter dated 13 September 2016 addressed to the Speaker, Hon Mabe wrote to the Speaker regarding her membership of the National Assembly. In the said letter, she advised that she had been nominated to serve as Mayor of Mogale City by her party and, because she was committed to the decision, she assumed office Mogale City.  

She further stated, “in the midst of all this it is quite apparent that an important administrative error was committed in that my resignation as a Member of Parliament was never rendered”. Hon Mabe stated that she had no intention of retaining dual membership of Councillor and membership of the National Assembly.

 

A legal opinion on the matter was apparently sought and obtained from Adv. Wim Trengove, SC. His legal opinion could thus be summarised as follows. Sections 158(1) (d) and 158(2) of the Constitution read together mean that a Member of the National Assembly may be a candidate for election or appointment to a Municipal Council, but may not hold dual membership of both the National Assembly and a Municipal Council. Further, in terms of sections 47(1) (b) and section 47(3) (a) of the Constitution a Member of the National Assembly loses his/her membership if he/she becomes a member of a Municipal Council, whilst a Member of the National Assembly, and that such loss of membership occurs automatically by operation of the law.

Most importantly Adv. Trengove, SC concluded that Ms Mabe lawfully elected to take up office as a Municipal Councillor and thereby automatically ceased to be a member of the National Assembly and that her choice was irrevocable.

A further legal opinion was sought and obtained from Adv. Jeremy Gauntlett, SC who agreed with, the substantial reasoning of, Adv. Trengove, SC on the matter. Adv. Gauntlett agreed, “the member lawfully elected to take up office as a municipal councillor and thereby automatically ceased to be a member of the National Assembly, Her choice is irrevocable”.

 

The Hansard records show that on 24 November 2016 Hon Didiza, House Chairperson, reminded the House about the point of orders raised on Hon Mabe’s membership of the National Assembly on 25 August 2016 and made the following ruling:

The matter has since been investigated, and legal advice was sought. The position is that Ms Mabe has ceased to be a member of the National Assembly. Both Ms Mabe and her party have been informed of this position. I thank you…

Finding

The allegation against Hon Mabe is that she breached the Constitution for being sworn in as a Councillor without resigning from Parliament or assuming a seat in the National Assembly without resigning as a Councillor.

In respect of the allegation of a breach of the Constitution for being sworn in as a Councillor, both Adv. Trengove and Adv. Gauntlett advised that Ms Mabe lawfully elected to take up office as a Municipal Councillor and thereby automatically ceased to be a member of the National Assembly and that her choice was irrevocable.

The Joint Committee, based on the available evidence and the two legal opinions obtained found Hon Mabe not guilty of contravening clause 4.1 of the Code.

In respect of the allegation that Hon Mabe breached the Constitution for assuming a seat in the National Assembly without resigning as a Councillor. The Joint Committee points out that, it did not have jurisdiction over Hon Mabe at the time of the alleged transgression.

Hon Mabe had already lost her membership of the National Assembly when she became a Councillor. Thus, the Joint Committee cannot make a finding against Hon Mabe.

The Joint Committee recommends that security in both Houses be strengthened to avoid non-members accessing the Houses.

 

 

 

A Masondo                                                                               A Singh

Co-Chairperson                                                                       Co-Chairperson