The interview the justice portfolio committee of the National Assembly conducted with justice minister Thembi Simelane on Friday was unedifying in many ways.

The true issue at stake is whether because of her illegal dealings with VBS Mutual Bank, via the municipality of which she was mayor and accounting officer in 2016, and in her personal capacity via a loan from Gundo Wealth Solutions, the minister now finds herself at risk of a conflict of interests — the kind of conflict that is proscribed by section 96(2) of the constitution.

She has final responsibility over the prosecution service, which is yet to decide whether to charge her.

In their haste to divine an actual conflict, which is arguably present, parliamentarians lost sight of the far lower threshold posed by exposing oneself to the risk of a conflict. The actual conflict need not materialise at all, as the Constitutional Court pointed out when former president Jacob Zuma was on the carpet for his renovations of his homestead at Nkandla at the expense of taxpayers.

The minister conceded that a perception of a conflict is present in her case. That concession is enough to disqualify her from holding office as minister of justice, provided the perception is a reasonable one. Her concession implies that she is in breach of the section and the code of ethics. That ought to be the end of the matter; either she resigns with her foot in her mouth, or the president stops dithering and dismisses her.

If the president won’t budge, the rationality of his keeping the minister in office will have to be tested in court after the public protector has pronounced on the matter. There can be no legitimate purpose of government involved in retaining a minister who is in the pickle in which Simelane has placed herself.

She came to the committee without the loan agreement and without proof of the repayments she says she made in 2020 shortly after the Motau report brought the scandal into the public domain as a “bank heist”.

The personal loan was described as “dodgy” by DA MP Glynnis Breytenbach, a former prosecutor, and as “dubious” by the investigative journalists who brought the entire affair to the fore.

It is good to see parliament exercising vigorous oversight over the executive, a much-neglected and abused function in the past. The quality of the interaction could be improved by giving questions asked numbers so that there is no room for ducking them. And by acquainting members with the applicable law.

The paper trail germane to the oversight ought also to have been made public before the committee quizzed the minister. The actual repayments made could then have been compared with the terms of repayment set out in what the minister described as a commercial loan.

The long delay in starting to repay, and the timing of the repayments allegedly made, both suggest a deal that was anything but commercial.

Paul Hoffman
Director, Accountability Now