Times Of Swaziland: ‘MINISTER FREE TO ACT OR NOT ON ETVA PROBE RECOMMENDATIONS

‘MINISTER FREE TO ACT OR NOT ON ETVA PROBE RECOMMENDATIONS
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 BY KWANELE DLAMINI  on 04/12/2020 01:21:00


MBABANE – Minister of Information, Communication and Technology (ICT) Princess
Sikhanyiso is at liberty to act or not on the recommendations of the ETVA
Parliament Probe Select Committee.
This is according to government, which is opposed to Chief Executive Officer
Bongani Austin Sigcokosiyancinca Dlamini and Corporate Affairs Manager Mncedisi
Mayisela’s application at the High Court.
The duo want the court to declare the decision and actions of the House of
Assembly in establishing the Eswatini Television Authority Parliament Probe
Select Committee ultra vires.
They also want the report, findings and recommendations of the committee to be
declared null and void. They further applied that the minister of ICT be
interdicted and restrained from acting on the findings and recommendations of
the committee.
Prayer
Government submitted in its points of law that the prayer to the effect that the
ICT minister should be restrained from acting on the findings and
recommendations of the committee, was beyond the province of the Judiciary in
terms of the doctrine of separation of powers.
“In exercise of her executive powers, the third respondent (ICT minister)
retains the freedom to act or not to act on the recommendations of the
Legislature. Only Parliament can inquire into her failure to comply, not the
Judiciary,” government stated.
Government also informed the court that there was nothing to suggest that the
applicants (Bongani and Mayisela) faced imminent suspension.
Government disputed that the matter was urgent since nothing suggested that
Dlamini and Mayisela faced imminent suspension.
“The alleged urgency is therefore fanciful, it is not real. Even if there was
tangible urgency, same would not amount to urgency because it would have been
self-created by the applicants who have been resting on their laurels for over a
whole month,” read government’s points of law.
Government will file a comprehensive affidavit outlining reasons for opposing
the application in due course. The applicants’ suspension, according to
government, can be substantially redressed at a hearing in due course either at
the High Court or Industrial Court.
Void
The prayers for orders to declare the decision and action of the House of
Assembly in establishing the select committee ultra vires and declaring the
findings and recommendations to be null and void serve no useful purpose,
according to government. This, the State, said was because Parliament long
adopted the committee’s Chairperson, MP Musa Kunene’s report on October 26,
2020.
“Whatever right of complaint of unconstitutionality of the committee or its
decision that the applicants may have had, same terminated when they elected not
to challenge it, but to appear before it and submit thereto in June 2020.”
Government also informed the court that Section 129 of the Constitution does not
confine parliamentary committees to probe ministries and departments of
government, but also included them among institutions that Parliament may
determine to probe or their affairs inquired into.
The matter was set to be heard yesterday, however, government’s representative
Principal Crown Counsel Ndabenhle Dlamini requested to be given sometime to
consult on whether acting on the report should be suspended temporarily while
the matter is pending in court. Ndabenhle will give a response to the court on
Monday. Bongani is represented by Nhlanhla Ginindza of NE Ginindza Attorneys.
The matter is pending before Judge John Magagula.
In their application, Bongani said from his personal experience, the aim of the
committee was to denigrate his dignity and that of Mayisela.
He argued that owing to the fact that the House of Assembly allegedly had no
power to establish the select committee; its decision to set up same was
unlawful irrational, unreasonable, arbitrary, illegitimate and ultra vires.
It was further his argument that, the establishment of the select committee and
the duties it was meant to carry out, was illegal and unconstitutional.
According to Bongani, the select committee was established contrary to the
provisions of the Public Enterprises (control and monitoring) Act 1989, which
gave the power to investigate corruption and maladministration by any Public
Enterprise to the disciplinary tribunal.
“May I state that Parliament seems not to have regard for the prevailing laws
of the country and it is surprising because its primary function is to enact
laws which shall be respected by all without fail,” he argued.
Bongani stated that it seemed to him that Parliament was allegedly intentionally
violating the provisions of the Public Enterprise (Control and Monitoring) Act
of 1989.
He asserted that he had been advised and verily believed that all actions of
Parliament ought to conform to the Constitution as the supreme law of the
country and that any such actions which did not conform to the former fell to be
struck off.
Bongani also submitted that he had been advised that, the actions of Parliament
in establishing the select committee to probe and investigate corruption and
maladministration at ETVA had to pass the test as to whether to conform to the
existing laws and the Constitution.
He argued that the Constitution empowered Parliament to establish a select
committee to carry out investigations for purposes of amending legislation or
coming up with a Bill to initiate legislation.
“I am advised and verily believe that the establishment of the select
committee in question overlooked the doctrine of separation of powers, which
ensures that the executive does not perform the duties of either the Judiciary
or the legislature and vice versa,” he argued.
He contended that the committee allegedly violated the doctrine of separation of
powers and this was evident from their report, which recommended that Parliament
should order an immediate review of all cases of every staff member who had been
dismissed during the tenure of the current management at ETVA.
He also alleged that the report excluded most of the responses he gave to the
select committee.
“Instead the select committee elected to accept the allegations made by the
faceless witnesses as the gospel truth without tangible evidence brought before
the committee,” alleged the applicant.
He told the court that it was absurd that the report excluded his responses and
no reasons were given justifying their exclusion.
The applicant submitted that it was his considered position, which was informed
by the way the report was crafted, that the committee did not weigh his
responses against the allegations.
Defamatory
“I do submit that, the report is directly defamatory of my person and I am
advised and verily believe that the select committee’s report, which is
obviously affecting my reputation, must be scrutinised by the High Court to
ensure that any criticism is made upon a proper legal basis. It would be
contrary to public interest if the courts were not prepared to protect the right
to reputational damage,” contended Bongani.
He submitted that, as a human being and citizen of the country, he had a right
to dignity which was enshrined in the Constitution under Section 18. The
applicant said this meant that he should not be defamed without justification.