Former head of the North West health department Dr Andrew Lekalakala has failed in his court bid to have section 22 of the North West provincial legislature’s Powers, Privileges and Immunities Act declared unconstitutional.
The challenged section makes it an offence, punishable as perjury, for anyone who, after being warned, knowingly and corruptly gives a false answer on a material matter before the provincial legislature or its committees.
Lekalakala, who is charged with fraud and corruption in the North West High Court, sought a court order declaring the section unconstitutional on the basis that he was compelled to testify before a provincial legislature committee and that such testimony was later sought to be used against him in criminal proceedings.
Lekalakala contended that this violated his privilege against self-incrimination and his right to a fair trial under the constitution.
The charges Lekalakjala is facing stem from an agreement he signed with a Gupta-linked company named Mediosa for the provision of mobile primary health care in certain districts in the province. The three-year contract was worth R180m. The contract was terminated by the department in 2018.
After the conclusion of that agreement, Lekalakala was summoned to a joint session of the North West legislature.
In a long line of judgments wherein the subsidiarity principle was applied, the Constitutional Court held that constitutional issues should not be adjudicated unless strictly necessary for the determination of the case, and that courts must decide no more than is required to dispose of the matter
— North West High Court
In his affidavit before the North West High Court, Lekalakala said he was questioned, “or rather interrogated”, under oath in the presence of the other officials for several hours until about 5am.
During his evidence, he was also reminded several times that he was under oath and that he must speak the truth.
“I experienced the process as being domineering and threatening. I was every now and then threatened with a remark ‘that the police must be called’, and I must be locked up immediately.”
After his appearance before the committee, a complaint was lodged with the police. He was then prosecuted in the high court for fraud, corruption and contraventions of the Public Finance Management Act.
Lekalakala said his criminal trial on these charges was currently part heard.
The state led the evidence of Dr Kgosi Motlabane, who was deputy director-general of the department. Lekalakala said during its evidence in chief, the state tried to lead evidence of what Motlabane had testified to in his evidence before the provincial legislature.
Lekalakala’s legal representative objected to this, which led to the constitutional challenge.
Lekalakala attacked this intended evidence on the basis that the evidence tendered by witnesses and answers given in reply to questions by members of the provincial legislature were privileged and may not be used as evidence in any criminal prosecution, as it has its origin in testimony and/or questioning in the provincial legislature and/or its committees.
In its judgment passed on December 19, the court said the objective of section 22 of the Immunities Act was to preserve the integrity, effectiveness and credibility of the legislative oversight mechanism. “It compels witnesses to provide dependable and truthful testimony, thereby deterring dishonesty and ensuring the maintenance of public confidence in the legislative process,” the court held.
It also held that section 22 had a clear purpose as it compelled a witness to answer truthfully. “Importantly, it does not compel evidence, nor does it punish silence. Its purpose is limited to penalising deliberate falsehoods. For this reason, care should be taken not to read into this section unrelated content, such as the right against self-incrimination, as the applicant would wish.”
The court said when considering a constitutional issue, a court should avoid deciding those issues where a matter could be disposed of on any other basis. It said constitutional interpretation should occur only when necessary for the resolution of the case.
“In a long line of judgments wherein the subsidiarity principle was applied, the Constitutional Court held that constitutional issues should not be adjudicated unless strictly necessary for the determination of the case, and that courts must decide no more than is required to dispose of the matter.”
The court stated that section 23 of the act allowed a witness who answered fully and faithfully to obtain a certificate that could stay criminal proceedings, except perjury.
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