TO: Chairperson: Select Committee on Finance [MR T Ralane]

COPY: Secretariat

FROM: Legal Services Office

DATE: 23 August 2004

1. We have been requested to urgently advise on the following provisions of the Public Audit Bill (Bill I of 2004):
2. Clause 3(d): Replacing "National Assembly" with "Parliament"

2.1 Clause 3(d) provides that the Auditor- General is accountable to the National Assembly. This provision is in line with section 181(5) of the Constitution. We are therefore of the view that replacing "National Assembly" with "Parliament" will be inconsistent with the provision of the Constitution.

3. Clause 7(1): That the "Minister of Finance" consult the person recommended and make recommendations to the President, instead of the "Oversight Mechanism"

3.1 Section 193 of the Constitution provides that the President, on the recommendation of the National Assembly, must appoint, inter alia, the Auditor-General. This section is, however, silent on the procedure for the determination of the conditions of employment of the Auditor- General. However, because it is the National Assembly that recommends the appointment, we are of the view that it makes sense to impose the responsibility of consulting the person recommended on the oversight mechanism. Notwithstanding our view above, this is a matter for policy decision.

4. Deletion of Clause 7(2)

4.1 Clause 7(1) provides for the consultation of a person to be appointed and the making of recommendations on the remuneration of such a person to the President by the NA. While clause 7(2) provides the guideline of what should be considered in the determination of the remuneration as well as the source of the funding of such remuneration. Therefore, in our view. Clause 7(2) is not necessarily covered in clause 7(1).

5. Clause 13(1): Replacing "Oversight Mechanism" with "Parliamentary Committee"

5.1 We are of the view that this is a matter for policy consideration. "Oversight Mechanism" is defined in the Bill (read with clause 10(3)) as the NA's mechanism to maintain oversight over the Auditor-General in terms of section 55(2)(b)(ii) of the Constitution. It is trite that Parliament uses its committees as oversight mechanism. However, we assume that the drafters of this Bill attempted to avoid binding the NA to establish a "Committee" as traditionally understood.

5.2 Should a decision be taken to replace "Oversight Mechanism" with "Parliamentary Committee", it will be necessary that the definition of "Oversight Mechanism" be deleted as well.

6. Kindly take note that this is our preliminary opinion, and might still change.

MS T D LENZIE/ ADV Z ADHIKARIE