Legal opinion clears Kohler-Barnard to stay on corruption inquiry amid opposition pressure

The legal advice obtained by the DA says there is no basis for the party’s MP, Dianne Kohler-Barnard, to excuse herself or be removed from the parliamentary inquiry into allegations of corruption in the criminal justice system.

The DA sought the legal opinion after KZN police commissioner Nhlanhla Mkhwanazi accused Kohler-Barnard of disclosing classified intelligence information at the parliamentary inquiry and Madlanga Commission, an allegation she has denied.

She has been under pressure from the ANC, MK Party, the Patriotic Alliance and ActionSA to excuse herself or be removed.

During the meeting of the Ad Hoc Committee on Wednesday night, DA MP Glynnis Breytenbach said the conclusion reached by their legal advice was that there was no factual basis to conclude that Kohler-Barnard was biased, conflicted and could not participate in the inquiry.

She said the rules of the National Assembly and the code of conduct required an MP to withdraw when issues were considered or decided upon.

The legal opinion said available facts showed that Kohler-Barnard did not reveal any information she obtained as result of her membership of the Joint Standing Committee on Intelligence.

She also, says the legal opinion, did not reveal information about the Crime Intelligence information that was not already in public domain, but she was the first to disclose information about the purchase of Berea property in Durban, including the address.

“The bottom line is there is no basis for Kohler-Barnard to recuse herself or to be completely removed from the Ad Hoc Committee. However, there is a reason for her to be excused from the Ad Hoc Committee when it debates the specific issue relating to the release of information about Crime Intelligence properties,” reads the legal advice.

Meanwhile, the parliamentary legal advice says there was no impediment in the participation in the inquiry by the two MPs who opened criminal cases against Deputy Police Commissioner Shadrack Sibiya, Police Minister Senzo Mchunu and others.

On Tuesday, Sibiya had mentioned that he was participating under protest due to MK Party MP David Skosana and DA MP Lisa Schickerling being complainants in a criminal case against him.

He had stated that the search and seizure warrant executed at his house last week was due to their complaint and there was reasonable apprehension of bias by the pair.

Parliamentary legal advisor Andile Tetyana said the National Assembly makes rules and decides on its order of business as envisaged in the Constitution.

Tetyana said the circumstance of Skosana and Schickerling did not fall within the purview of conflict of interest.

He also said the Ad Hoc Committee merely reports to the National Assembly on its performance and that it did not perform an administrative function.

“The committee exercises public power and it is obliged to do so in accordance with the rule of law. The most significant of these principles is the requirement of rationality.”

He added that the committee has the discretion to determine its own procedures and ultimately reports to the National Assembly upon completion of its work.

Tetyana also said the affected members have a right to ask questions to the witnesses and a witness was not entitled to refuse to answer questions from the affected members.

He cited a court case where former public protector Busisiwe Mkhwebane had sought recusal of the chairperson in her impeachment inquiry, but the court found she had not shown grave injustice and harm was to be suffered and would be irreversible.

“The courts have been loath to stop proceeding mid-stream,” he said, adding that they did not see impediment in the members participating in the inquiry.

The DA has since replaced Schickerling with another alternate member Damien Klopper and Skosana continues to serve on the Ad Hoc Committee.

The committee has given parties an opportunity to study the legal opinion and agreed that it will be guided in its proceedings by the parliamentary legal advice.

In another development, the Ad Hoc Committee has been granted an extension to finalise its work until November 28.

Committee chairperson Soviet Lekganyane made the request to National Assembly Speaker on behalf of the committee.

The request was made after the committee encountered delays in starting with its public hearings when Mkhwanazi was consulting with the Madlanga Commission of Inquiry.

Cape Times