Parliament's portfolio committee on health were told on Thursday that Health Minister Dr Zweli Mkhize cannot rely on the sub judice rule to avoid discussing the Digital Vibes contract.
Last week, Mkhize who was placed on special leave by President Cyril Ramaphosa, excused himself from answering questions before the committee after claiming he received legal advice not to discuss matters related to the Digital Vibes contract.
At the time, he told chairperson Dr Sibongiseni Dhlomo the legal advice related to the Special Investigating Unit (SIU) investigation into the controversial R150 million tender. He was supported by some ANC members on the committee.
On Thursday, the committee received legal advice on the sub judice rule. Legal adviser Siviwe Njikela said the rule was established to protect the administration of justice but could never surpass the constitutional mandate of Parliament.
The sub judice rule cannot be applied in a manner that may compromise the constitutional mandate of ParliamentLegal adviser Siviwe Njikela
The legal opinion found that members of Parliament on the committee had erred when they failed to hold Mkhize accountable for his alleged role in the Digital Vibes saga.
"Our view is that a mere investigation does not invoke the application of the sub judice rule. Even where a matter is pending before a court of law, the sub judice rule cannot be applied in a manner that may compromise the constitutional mandate of Parliament of exercising oversight over the executive," said Njikela on Thursday.
Njikela said he was requested to advise Parliament on the application of the sub judice rule to a matter being investigated by the police or the SIU.
"I think, even in the context of Parliament, it needs to make an assessment whether its oversight function over a particular functional weighed against the possible disadvantage that may flow from the sub judice rule that there must be a balance.
"The oversight role cannot be completely compromised purely on the basis of an allegation that there is a sub judice rule."
Njikela unpacked rule 89 of the National Assembly, which states that no member may reflect upon the merits of any matter of which a judicial decision in a court of law is pending.
"Even rule 89 is specific to limit a reflection on the merits of a matter that is pending before a judicial decision, so it must have gone past the stage of mere investigation. It must be a matter that is due to be determined by the court.
"As Parliament, we must stay away from reflecting on the merits of that matter. Two things that need to be considered are the merits of a matter and a pending decision by a court of law," he said.
"There must be a careful balancing act to make sure that Parliament is able to do its work as constitutionally mandated, in the same way that the judiciary, as a separate arm [of the executive], should be given the space and the executive the same space.
"Most importantly, the portfolio committee has a constitutional obligation to hold the executive functionaries to account. That is the specific mandate given to the committee as an extension of Parliament, so there has to be that exercise and it has to be done carefully and without harming the interest of any other arm."
Later, Dhlomo said the committee had planned to override its earlier decision on not holding Mkhize accountable.
"On Wednesday last week we then planned that minister Mkhize will come to the portfolio meeting the next day. On the same day we received the news that Mkhize was [placed] on special leave and that [Tourism] Minister [Mmamoloko] Kubayi-Ngubane is acting minister and that prevented us from getting the meeting to go on last Thursday."
The DA's Siviwe Gwarube, who had insisted that the matter was not sub judice, said: "Members had failed to understand the rule and the rules of Parliament by invoking that [which] was not applicable.
"This was a complete waste of time - our time and South Africa's time - and that meeting was stalled because of certain members who invoked a rule they knew very well was not applicable," she said.
Gwarube insisted that Mkhize should be summoned to explain himself before the committee.