Business Day *MPs might subpoena Sisulu over report* *Wyndham Hartley, Business Day, Johannesburg, 12 August 2010*A legal battle between Parliament and Defence Minister Lindiwe Sisulu over two interim reports on morale and service conditions in the South African National Defence Force (SANDF) will reach a decisive moment next week when a decision is made on whether to subpoena Ms Sisulu.
At issue is a request from the parliamentary defence committee for Ms Sisulu to supply two interim reports from the Interim National Defence Force Service Commission, which describe military service conditions as a "ticking time bomb" and a potential risk to national security.
Should the committee decide at its meeting next week to use its constitutional subpoena powers, it would be unprecedented in the history of the democratic Parliament.
Ms Sisulu has insisted that the reports are works in progress and cannot be provided to the committee until the commission has completed its work.
In turn, MPs have insisted that they cannot properly process the Defence Amendment Bill, which provides for a permanent service commission to deal with military conditions of service, if they do not have the reports.
In an attempt to make progress on the issue, the committee asked parliamentary legal adviser Mukesh Vassen for an opinion on the committee's legal position.
He responded that the committee is legally entitled to request the reports. If the minister still refuses, she can, as a last resort, be compelled to make them available in terms of section 56 of the constitution.
In a furious response from the ministry, Mr Vassen was described as incompetent and lacking understanding of the constitution.
At issue is the matter of reports that have not been considered by the Cabinet and whether they fall under oversight provisions allowing MPs to scrutinise the work of ministers.
The ministry's legal opinion said "section 56 of the constitution states that the National Assembly or any of its committees may summon any person to appear before it to give evidence on oath or affirmation, or to produce documents.
"It may require any person or institution to report to it; or 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 the constitution, but that does not mean ministers may be forced to produce documents willy-nilly. Any portfolio committee foolish enough to issue a summons to a minister on a matter pending before Cabinet or the executive will be met with an iron-clad claim of executive privilege."
In a follow-up response to the committee, Mr Vassen questioned whether such a thing as executive privilege exists in South African law. He said while section 56 of the constitution gives Parliament unfettered powers to summon any person, there is no provision of the constitution or law that provides for or exempts anyone on the basis of "executive privilege".
He said that because Ms Sisulu acted on the contents of the reports --- and "in my view as the Interim National Defence Force Service Commission is appointed by the minister to advise and report to her on matters identified by her within her portfolio and its functioning is reliant on funds derived from the National Revenue Fund --- any report by the interim commission falls squarely within the ambit of the parliamentary committee's competency".
Democratic Alliance defence spokesman David Maynier said Ms Sisulu is stuck in a parliamentary quagmire. "The minister has backed herself into a political corner and has set herself up as a litmus test of the ability of Parliament to properly hold ministers to account. (She) should now back down and hand over the interim reports or risk being compelled to do so by Parliament."
ANC committee chairman Nyami Booi confirmed that the matter was discussed yesterday and MPs are considering their options. A decision will be made next week.
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