- Parliamentary Legal Services said the oversight mandate of Parliament should not be stifled by litigation processes that may take years to resolve.
- The legal advisors said the sub judice rule is not applicable to this matter and should not be used to frustrate the oversight process of Parliament.
- They said the audit report was of legal force and effect and must be considered by the Standing Committee on Public Accounts.
Parliament's legal advisors have found that Minister of Transport Fikile Mbalula and the leadership of the Road Accident Fund (RAF) could not use legal action as an excuse for not submitting the fund's financials and audit report to Parliament.
This concludes a debacle which saw Mbalula lock horns with Auditor-General (AG) Tsakani Maluleke over whether the RAF was obliged to table its annual report before Parliament.
Mbalula wrote to Parliament in April saying the RAF advised him that it could not comply with the Public Finance Management Act (PFMA) and submit its annual report and audited financial statements to him for tabling in Parliament.
Mbalula explained that the RAF could not submit the annual report because of changes in the entity's accounting policy regarding claims liabilities, which would require material changes to the financial statements and audit report. In April, the RAF announced that it cut its liabilities by over R300 billion by changing an accounting policy. But the AG does not agree with this change.
Maluleke maintained that there was nothing in law preventing her from publishing the AG's audit report into RAF.
The RAF approached the North Gauteng High Court in Pretoria in February to prevent the publication of the report, but this legal bid was defeated. The RAF plans to appeal the ruling. Due to this, Mbalula argued that because the matter was being considered by the court ("sub judice") and the change in accounting policy as reasons why the annual report could not be tabled.
The sub judice argument was also introduced in Mbalula's letter to Parliament in April, in which he stated that the annual report and financial statements could not be tabled for that reason.
READ | Mbalula and Auditor General at odds over delayed RAF audit report
But this week, Chief Parliamentary Legal Advisor Zuraya Adhikarie told Parliament's Standing Committee on Public Accounts (Scopa) in a letter that Mbalula and the RAF could not use sub judice to forgo Parliament's oversight function.
"The sub judice rule is not applicable to this matter and should not be used to frustrate the oversight process of Parliament. The constitutional functions of Parliament cannot, in any event, be trumped by internal rules and processes," the note said.
Adhikarie said the oversight mandate of Parliament should not be stifled by litigation processes that may take years to resolve.
"These oversight processes are instrumental for accountability but also to empower Parliament in its budgetary allocations and consideration on issues related to legislative reform. The fact of the matter is that the audit report is presently of legal force and effect and must therefore be considered by Scopa in terms of Assembly Rule 245(1).
"As such, the minister and the board of the RAF should attend any engagements with Scopa to scrutinise the Audit Report. The RAF will be at liberty in such an engagement to respond to the findings of the AGSA and to provide clarity to SC on the particular concern around liabilities as well as on any other financial matter," Adhikarie said.
READ | Road Accident Fund loses urgent bid to prevent publication of Auditor-General report
She said Mbalula should be asked to account for the failure to table the annual report from the RAF. She said the tabling of an explanation for the delay does not absolve Mbalula from his responsibility to comply with the PFMA.
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