Law chief may have to answer to MPs

The following article was published online by Business Day:

Staff claim they have no work as bad bills land in Parliament, writes Wyndham Hartley

Indications are that Chief State Law Adviser Enver Daniels will be called before Parliament’s justice committee to explain why senior officials in Pretoria have allegedly opened grievance procedures over the way in which he is managing the office.

Other allegations are that he is discriminating against experienced Pretoria staff apparently because they are white.

This comes amid a rise in the number of draft laws deemed unconstitutional that have landed in Parliament in recent years. Serious questions have been raised about the quality of work done by the Office of the Chief State Law Adviser which certifies bills before they reach MPs.

While the Protection of Information Bill, currently before Parliament, has dominated the headlines over unconstitutional legislation, many others have been condemned in the same way. Mr Daniels personally told Parliament’s ad hoc committee on the Protection of Information Bill late last year that it would pass a constitutional challenge despite a host of top legal opinions insisting that it was constitutionally vulnerable.

While legislators in various committees might introduce changes to bills that will make them pass constitutional muster, it is a matter of concern that they are reaching Parliament in an unconstitutional form.

Is Mr Daniels reluctant to tell the Cabinet that legislation it has approved is wrong, or is the legal expertise at his office such that it cannot tell what is legal or not? Or is the available skill in the office simply not being utilised?

Other bills that have been labelled unconstitutional in the past three years or so upon landing in Parliament are the Municipal Property Rates Amendment Bill, the Land Tenure Security Bill and the Expropriation Bill, along with changes to the Immigration Bill and the Mine Health and Safety Amendment Bill. Another bill that posed a serious threat to freedom of the press — the Film and Publications Amendment Bill — also landed in Parliament in unconstitutional form despite having been certified.

An anonymous document, which so far has proved to be accurate on the grievance charges against Mr Daniels, also places him at the heart of the recent debacle over the extension of Chief Justice Sandile Ngcobo’s tenure.

However, it is not clear if Mr Daniels played any role in advising President Jacob Zuma to use an unconstitutional provision to make the reappointment.

The document complains that unlike other government departments that are based in Pretoria, Mr Daniels has centred the office of the chief state law adviser in Cape Town.

This, coupled with his refusal to give work to officials in Pretoria, mean that he and others must fly between the two centres every week to attend to the needs of other government departments. This comes at great additional cost to the taxpayer.

“The chief state law adviser has now gone so far as to refuse certain senior members of the Pretoria office any work. There are two deputy chief state law advisers ( with the rank of chief director) and three principal state law advisers (with the rank of director) and among them they have over 80 years of experience as state law advisers.

“These five highly paid and skilled state law advisers (all advocates), have been sitting without any work in his office for almost three and a half months!” the document says.

“In an unlawful attempt, that is, without following any prescripts or applicable public service legislation, to get rid of these five senior members the chief state law adviser informed them that they were being redeployed to assist in a turnaround project of the justice department and that is why they are no longer on the staff of the office of the chief state law adviser and that they should vacate their offices,” the document says.

It also claims that a letter from a lawyer representing the five has been ignored by Mr Daniels and that “matters have now gone so far that the majority of the staff in the Pretoria office has instituted a grievance procedure against the chief state law adviser for this type of management style. Yet he still persists in ignoring the staff in Pretoria.”

The grievances were confirmed by Department of Justice spokesman Tlali Tlali. “Attempts were made by the department internally to close the gap between the parties concerned. These efforts have not yet yielded any positive results.”

Democratic Alliance justice spokeswoman Dene Smuts and her counterpart in the African Christian Democratic Party Steve Swart were in agreement yesterday that the matter was of such importance that Parliament’s justice committee should get involved.

Ms Smuts added that the matter was a long-standing problem that had been getting worse over time.

He and others must fly between the two centres every week to attend to the needs of other departments.

Source: Business Day