‘MINISTER FREE TO ACT OR NOT ON ETVA PROBE RECOMMENDATIONS

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. 

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