National Lotteries Commission's refusal to provide beneficiary lists would not 'withstand constitutional scrutiny', MPs told

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Democratic Alliance MP Mat Cuthbert.
Democratic Alliance MP Mat Cuthbert.
Jan Gerber/News24
  • Parliament's chief legal advisor found that the National Lotteries Commission's refusal to provide its beneficiary lists to Parliament wouldn't "withstand constitutional scrutiny".
  • The Portfolio Committee on Trade and Industry now wants this information.
  • The NLC previously published these lists but, after corruption allegations, said it would be illegal to publish them.

The National Lotteries Commission's (NLC) lists of beneficiaries are one step closer to coming under public scrutiny after Parliament's legal advisor found the commission's assertion that it would be illegal to publish its lists, would not "withstand constitutional scrutiny".

The Portfolio Committee on Trade and Industry discussed the opinion, more than a month after it was first requested, on Wednesday.

DA MP Mat Cuthbert has tried for months to obtain the 2018-2019 NLC proactive-funding beneficiaries, 2019-2020 proactive-funding beneficiaries and the 2020 Covid-19 Relief Fund beneficiaries from the NLC, as the allegations of corruption grew.

ALSO READ | National Lotteries Commission lashes out at DA, denies it is 'engulfed in corruption'

The proactive-funding beneficiary lists have been published by the NLC in previous years, but after a slew of reports by GroundUp about alleged corruption in this sphere, it started claiming that it was illegal to release them.

"As to whether the assertion by the National Lotteries Commission that previous publications of lists of beneficiaries, had been done erroneously, is correct, we submit that the assertion is incorrect and would not in our view withstand constitutional scrutiny," reads the legal opinion drafted by Parliament's chief legal advisor Zuraya Adhikarie.

"The default position is that there should be disclosure of information unless prohibited. The legislation cited by the NLC does not provide a basis to refuse the said information.

"The NLC must clearly and precisely specify the grounds and the reasons for refusal of the information. The committee must be directed to specific grounds of refusal, together with the details which prevent its disclosure. The stance of the NLC seems to be that there is a blanket prohibition on the provision of this information, which is untenable".

'Constitutional delinquents'

Adhikarie further stated that Parliament may, through its committees, subpoena the information if it was not forthcoming. If there was a need for it to be treated confidentially, the National Assembly's rules provided for that.

"Legislation affecting the access or flow of information should be purposely interpreted in line with Parliament's constitutional mandate of oversight, in conjunction with constitutional principles of accountability and transparency," reads the legal opinion.

This gels with the opinion the DA obtained last week, after which Cuthbert laid charges against the NLC for its refusal to release the lists.

At a meeting in March, the ANC contingent in the committee sided with the NLC, but in a reversal, the committee on Wednesday agreed that the information should be provided to members as soon as possible.  

Failure to do so by the NLC would result in the DA subpoenaing them to appear before the committee to account, Cuthbert said in a statement released after the meeting.

"Now that the NLC and its board have officially been labelled as constitutional delinquents – the DA's efforts have been vindicated.

"There is no doubt that today is a victory for parliamentary democracy".

In February, the NLC appointed audit firm Sekela Xabiso to institute an independent investigation into allegations of improper use of funds intended for good causes.

After Cuthbert last week announced that he would be laying charges against the NLC, the commission hit back and said DA was being being "mischievous and malicious" in laying criminal charges against it for its refusal to release beneficiary lists.

The NLC said the matter was before the courts.

The case the NLC refers to has been brought by a group called United Civil Society in Action (UCSA), which is asking the court to order the removal of content about NLC beneficiaries from GroundUp, particularly a report of 25 May about unfinished projects and missing funds. They also want an order preventing GroundUp and the NLC from publishing details of beneficiaries and projects, and the amounts and timing of grant allocations.

UCSA, which represents several NGOs, first appeared in February, and thus far their only actions have seemingly been in defence of the NLC, and attacks on GroundUp.

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