by Adv. Rita Felgate
I see the President has under Notice 33 in Gazette 34305 dated 2011/05/20 referred the goings-on of the Midvaal Municipality to the Special Investigating Unit (SIU).
The co-incidence of this announcement being made a couple of days after his ruling ANC lost the constituency at local government elections to the DA is NOT the subject of this blog.
What IS the subject of this blog is whether the President actually understands the Special Investigating Units and Special Tribunals Act, No. 74 of 1996 (“the Act”) which empowers him to refer matters to the SIU, and whether he has acted in terms of those powers.
Somehow, the President appears to have expanded powers he has under section 2(2)(b) of the Act to investigate improper or unlawful conduct by “employees of any State institution”, to an investigation into the improper or lawful conduct by “councilors, officials, employees and/or agents of the Municipality”.
A second notice of referral to the SIU by the President (Notice 34 in Gazette 34306 dated 2011/05/20) confuses the issue further in relation to the Eastern Cape Province Department of Roads and Transport, which states in relation to section 2(2)(b) of the Act that the investigation is into the improper or unlawful conduct by “officials and/or employees of the Department”: If “officials” are (whether rightly or wrongly so) in the President’s mind not “employees”, then should he have included them in the investigation at all? Also, given that Midvaal public representatives (Councilors) are the object of investigation in the one referral, what was the President’s thinking in not including an investigation into the Eastern Cape Legislature and in particular the relevant MEC under the other referral?
The referral in relation to Midvaal begs the question: Are councilors employees of a municipality? I’d think not. Would it be within the powers of the President to investigate councilors under section 2(2)(b) of the Act? I’d think not. The referral in relation to the Eastern Cape Department of Transport begs further questions: Are officials not employees? And, why does this ingestigation not include an investigation into elected representatives relevant at provincial level, which are the Provincial Legislature and specifically the relevant MEC?
From where I stand, I’d say we have two options: The President either does not understand his powers under section 2(2)(b) of the Speical Investigating Units and Special Tribunals Act, No. 74 of 1996; or he does not care to act within those powers. My guess? He does not understand his powers and he knows that, and does not care.
Anyone out there with a different thinking cap on?