Tuesday, October 27, 2020

State, IAS flying academy legal showdown looms

The segregation of powers between Parliament and the Judiciary is expected to fall under renewed scrutiny on 06 October 2020.

The Committee of Parliament on Education and Skills Development and the privately-owned International Aviation Solutions (IAS) are battling for the legal possession of students log books, transcripts and training files.  

In what promises to be a landmark case, court records show that one of the questions that High Court judge Dr. Radijeng will have to grapple with is whether Parliament has exclusive jurisdiction to regulate its own affairs and whether some of its decisions cannot be reviewed and set aside by the court, as provided for by the principle of  “checks and balances”.

A furious Committee of Parliament on Education and Skills Development chaired by Wynter Mmolotsi this week set the tone for the constitutional battle when it clawed into IAS Director Teezzarh Seduke’s decision to approach the High Court, arguing that it operates “on equal footing to a court of law.”

State lawyers further argued: “The second applicant’s (Seduke) application is fatally flawed as Applicant seeks to interdict lawful conduct in that Section 12 (2) of the National Assembly (Powers and Privileges) Act empowers a Committee to order the attendance of witnesses at a hearing whilst Section 13 (20) of the National Assembly (Powers and Privileges) Act permits the Committee to require the production of any paper, book, record or document before the committee.”

In his response, defence attorney, Mike Rasetshwane of Modimo & Associates argued that “With respect, the respondents (Parliamentary Committee members) misunderstand the application.”

The lawyer argued that “The application seeks to interdict the proceedings because (i) the Chairman is a judge in his own cause contrary to the rules of natural justice, (ii) the applicants have been given an unreasonably short period of time to meaningfully prepare for the hearing, the outcome of the proceedings is a foregone conclusion and the respondents are biased.”

He said Seduke and IAS have been denied right to legal representation as well as denied their right to refuse to answer questions.

“None of these matters are “lawful conduct.” In fact, they amount to abuse of power by the respondents,” wrote Rasetshwane.

State lawyers also argued that Seduke has failed to exhaust local remedies. They cited section 13 (2) of the National Assembly (Powers and Privileges) Act Chapter 02:05 which provides that “where any person ordered to attend or to give evidence or to produce any paper, book, record or document before any committee refuses to answer any question that may be put to him or to produce any such paper, book or record or any document on the ground that the same is a private matter, the chairman of the committee may report such refusal to the Speaker with the reasons therefore, and the Speaker may thereupon excuse the answering of such question or the production of such paper, book, record or document or any order the answering or production thereof.”

They also said that Seduke has placed the cart before the horse when the Committee could have escalated the issues to the Speaker instead of approaching the court. On documented contrary to this, the Parliamentary subpoena served on Seduke stated that in relation to the conditions on it – “he should on no account neglect to comply with the summons as he may thereby render himself liable to arrest, a fine or to imprisonment.”.

Further insisting that the Parliamentary Committee operates or on equal footing to a court of law, State lawyers said Section 14 of the National Assembly (Powers and Privileges) Act Chapter 02:05 provides that “in respect of such evidence or the disclosure of any communication or the production of any such paper, book, record or document to the same right or privilege as before a court of law.”

“Therefore, if an applicant can be required to produce the log books before a court of law, he can also be required to produce them before a court of law,” they said.

The State lawyers also said that Parliament has exclusive jurisdiction to regulate its own affairs in terms of Section 76 (1) of the Constitution.

“The privilege of exclusive jurisdiction of Parliament to regulate its own internal procedure is one of concomitants of sovereignty of parliament,” they said.  

But Seduke’s lawyers dug their heels deep insisting that “There is no statutory or contractual obligation reposing on the applicants to exhaust any alleged local remedies. On the contrary, the respondents were under a duty to refer issues raised to the Speaker but failed to do so.”

On the Committee’s argument that it has power to regulate its own affairs, Rasetshwane said
“We have not placed the issue in contention. We accept it.”  However, the lawyers noted, “Parliament is not authorized by the Constitution or any statute to infringe the rights of citizens under the guise that it is regulating its affairs. At any rate, the judiciary (this is court) has power to “checks and balance” the legislature.”

Seduke approached the court on urgency to interdict the Committee after it demanded not just the presentation of student records in a Parliamentary Committee hearing and the intention of dispossession and transfer of the documents to the Ministry of Tertiary. 

 IAS argues that it would be an infringement of its rights to a lien over the transcripts until the dispute around an unpaid bill is resolved with the Ministry. Court records show that several attempts made to the Ministry by IAS, to resolve the matter for the benefit and relief of all concerned parties, especially the students and staff of the academy.

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The Telegraph October 28

Digital edition of The Telegraph, October 28, 2020.