Pierre de Vos, Constitutionally Speaking – 23 May 2018
Disgraced former Steinhoff CEO, Markus Jooste, vanished from public view after it came to light that his company had cooked its books, bringing the share price of Steinhoff crashing down. Parliament’s standing committee on Finance wants to question Jooste and is planning to subpoena him as Jooste is not eager to answer questions. But because Parliament has enormous constitutional power to hold individuals in both the public and private sector accountable, Jooste is likely to lose this fight – unless he ran away to a place like Dubai – as some other culprits have recently done.
On the day it came to light that there were “accounting irregularities” (sounds like a nice phrase for fraudulently cooking the books) at Steinhoff, Markus Jooste offered his resignation as CEO of the company. Then he disappeared. Since then, Afrikaans media outlets have regularly carried stories essentially asking: “Where is Marcus Jooste hiding?”.
A typical example of this appears in Die Huisgenoot of 8 January 2018. A sensational headline in the usual Huisgenoot style poses the same question from a new angle: “Kruip boerebiljoenêr Markus Jooste in Hermanus weg?” (“Is boer billionaire Marcus Jooste hiding in Hermanus?”) The article quotes a neighbour who informed the magazine that the words “Thief” and also “Con-artist” were painted on the wall of Jooste’s Hermanus holiday home, that cars were seen at the house over the December holiday period, but that Mr Jooste did not make an appearance.
Jooste has not only hidden from the media. He has also declined an invitation from the NA standing committee on Finance who wants to question him about the collapse of the global retailer’s share price. According to reports, Jooste has resisted appearing voluntarily before the committee on the grounds that this could jeopardise his right to a fair trial in the event of a future prosecution. He allegedly claims he is being investigated by the Hawks and that he will resist any attempt to force him to testify.
The thing is, this is an empty threat as he can be legally forced to testify.
It would be difficult for anyone (whether a politician or a private individual) legally to avoid testifying before a standing committee of the NA if summoned to do so. It might be that the power of the NA to force individual to testify is limited to matters relating to the work of the NA. If this is true, the NA might not have the power to force anyone to come and testify about, say, why he or she does not attend church or what he or she had for breakfast, as such issues would be beyond the scope of the powers conferred on the NA.
But this would be a limited exception. The NA and its committees have a broad mandate that goes far beyond the task of considering and passing legislation and holding the executive to account. In terms of section 55 of the Constitution the NA can also initiate or prepare legislation (although it seldom does so), which means whenever it considers initiating legislation it can call witnesses to inform it about the topic at hand.
But the NA also has the power to maintain oversight of the exercise of national executive authority, including the implementation of legislation; and any organ of state. In the case of Marcus Jooste, the NA standing committee on Finance therefore has the power to maintain oversight over the implementation of legislation that applies to Steinhoff and it is in this capacity that it has every right to call Jooste to testify.
Usually a committee first invites somebody to come and testify, but when that person refuses, it has the power to force the person to attend, to provide any relevant documents, and to testify. This is made clear by section 56 of the Constitution which (in part) reads as follows:
The National Assembly or any of its committees may –
(a) summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
(b) require any person or institution to report to it;
(c) compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b).
Note that this power is not limited in any way. For political reasons, the various committees of the NA are sometimes reluctant to use this power when politicians or the politically connected try to avoid testifying before a NA committee.
During the Nkandla scandal, a diligent chairperson of the relevant standing committee would first have invited then President Jacob Zuma to come and testify and if he had refused would then have subpoenaed him to do so. The President is not above the Constitution or the law and would have been legally obliged to testify.
Of course, the chairperson and the MPs from the governing party on the committee might well have faced serious career-limiting consequences for holding the President accountable by calling him to testify about what he knew about the unlawful public expenditure on luxury renovations at his private home. But this does not mean that they did not have a right and a duty to hold the President accountable and to call him to testify.
(As an aside, usually an innocent person will be eager to testify to clear his or her name, while a guilty person will try and avoid testifying at any cost.)
Luckily for these MPs (and for the governing party) most South Africans have short memories, so it is unlikely that most of us will in future question the credibility of these delinquent MPs or ask hard questions about their willingness to turn a blind eye to what looks suspiciously like corruption. As they now all make the appropriate noises about the evil effects of state capture, they are hoping voters all suffer from collective amnesia.
In any event, if a witness refuses to testify before a committee of Parliament (for present purposes that would be the NA standing committee on Finance), he or she could be forced to attend in terms of section 56 of the Constitution. Various provisions of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act prescribe the procedure that must be followed to subpoena someone to testify before an NA committee.
Section 14(2) of the Act states that a summons must be issued by the Secretary of Parliament on the instructions of the Speaker or the Chairperson; or the chairperson of the committee concerned, acting in accordance with a resolution of the committee and with the concurrence of the Speaker or the Chairperson.
Section 16(2) of the Act states that a person who is being examined under oath or affirmation:
may be required to answer any question put to him or her in connection with the subject of the enquiry, and to produce any document that he or she is requested to produce under that section, despite the fact that the answer or the document would incriminate him or her or would tend to expose him or her to criminal or civil proceedings, or damages.
So, Mr Jooste would not be successful in resisting a subpoena on the basis that he might incriminate himself before the committee. However, he might be happy to hear that section 16(3) of the Act states that the evidence given under oath or affirmation “may not be used against that person in any court or place outside Parliament, except in criminal proceedings where the person concerned stands trial on a charge of perjury or other charges relating to the testimony before Parliament.
The NA standing committee on Finance has now decided to subpoena Marcus Jooste. This means that unless he flees the country he will be compelled to testify before the committee.
It is unclear whether the Hawks have made any progress in its investigation into the alleged criminal activity of Jooste. (This is relevant because unless he is arrested, he would be able to travel and could thus evade questioning by fleeing abroad – just like others implicated in state capture have fled.)
Given the incompetent manner in which the Hawks have dealt with some other recent investigations (the Pravin Gordhan fiasco comes to mind), it is unclear whether the Hawks have the skill and political will to go after Jooste. If there is no proper investigation, Mr Jooste (who has become a poster boy for the evils associated with “White Monopoly Capital”) would then become the beneficiary of the capture of the Hawks by those who used the idea of “White Monopoly Capital” to cover up their own looting of the state.
That would be just another small irony in our world in which up is sometimes down and down is up.