Lawyers for embattled SABC chairwoman Ellen Tshabalala on Monday asked the Western Cape High Court to rule that Parliament was conducting a disciplinary inquiry against her and had no right to do so.
Norman Arendse told the court Parliament’s portfolio committee on communications failed to indicate the legal basis on which it was acting against Tshabalala for allegedly lying about her academic qualifications.
But, he said, since the committee believed it had the power under the Broadcasting Act to recommend to the National Assembly that she be suspended and potentially dismissed, it was running a disciplinary inquiry.
“We grapple with the chairwoman (of the committee) saying this is a parliamentary process, not a hearing,” he argued.
Arendse said if the court were to agree with him that in fact his client was facing a disciplinary hearing, the terms of natural justice would apply, including the presumption of innocence.
He added that it was therefore “astonishing” that committee chairwoman Joyce Moloi-Moropa said the onus was on Tshabalala to produce copies of the degrees she claimed to hold.
Moreover, he said, it would put the parliamentary committee in the untenable position of being both the accuser and the judge in the case, as it could recommend to the chamber to urge the president to dismiss Tshabalala.
Denzil Potgieter, for Parliament, argued that Arendse was mistaken in arguing the inquiry amounted to a disciplinary hearing. He said it was a parliamentary inquiry as provided for in section 15(1)(a) of the Broadcasting Act and therefore an administrative process.
It was one, he added, that had left the ordinary man in the street wondering why Tshabalala did not simply produce proof of her university qualifications and lay the matter to rest.
He said that to characterise it, as Arendse sought to do, as a disciplinary inquiry would “impose the nature of an adversarial inquiry, which this is not”, as that would give the committee the powers to impose disciplinary sanctions.
The committee could only make a finding, and it was then up to the National Assembly to make a recommendation to the president.
Potgieter argued that the principles of legal fairness still applied, regardless of the nature of the inquiry, and that therefore Tshabalala’s argument was not made in good faith.
“The dispute was simply conjured up by the applicant to prevent the inquiry from being held on 23 October, 2014,” he added.
Judge Elizabeth Baartman reserved judgment.
Tshabalala has been locked in a stand-off with MPs for months after it was reported in July that she had misrepresented her qualifications.
She stated on her CV that she had a BCom degree from the University of SA (Unisa) and a post-graduate degree in labour relations. Unisa has since stated that, according to its records, she had neither of these qualifications.
On October 23, she obtained an interim interdict halting the inquiry into whether she lied about her academic qualifications.
Moloi-Moropa told reporters outside court she believed the committee had acted fairly, recalling that at one point she had been accused of being too lenient with Tshabalala.
“Part of what we have done is to ensure that as Parliament we are doing things as correctly as possible and we are as fair as possible.”
DA communications spokesman Gavin Davis said Tshabalala’s argument was a “red herring” and the law made it clear Parliament had the right to conduct an inquiry into the SABC’s chairperson. SAPA