The Portfolio Committee on Justice and Correctional Services has postponed a discussion on a review of the Executive Members Ethics Act, as prescribed in former Public Protector Thuli Madonsela's State of Capture report.

During Wednesday's meeting, African National Congress (ANC) MP Chana Pilane-Majake said the committee had received communication from the Speaker's office that it should attend to the recommendation that the act be reviewed.

She referred to the recent High Court judgment on the Public Protector's overreach of her powers in the Bankorp matter.

"One wonders if it is not applicable in this case," she said.

She also reminded her colleagues of the separation of powers and said it was the competency of the executive to initiate the amendment of legislation.

ANC MP Loyiso Mpumlwana said it was his opinion that the committee was bound by the Bankorp judgment.

Public Protector's recommendations 'binding'

"It actually says, which I always thought is the correct position, that the Public Protector can't instruct Parliament," said Mpumlwana.

He said because of this, the committee had to inform the Speaker that it couldn't deal with the matter.

Democratic Alliance MP Werner Horn said there was a marked difference between the recommendations in Madonsela's State of Capture report and the Bankorp report by current Public Protector Busisiwe Mkhwebane.

He said that "any first-year law student" could tell that the Bankorp report went too far, as it had expected "Parliament to be a rubber stamp" by prescribing how the law had to be amended. Madonsela's report had only said that the law should be reviewed.

He pointed to the Constitutional Court's ruling in the Nkandla matter, which found that the Public Protector's recommendations were binding unless reviewed by a court. He said, to his knowledge, Parliament hadn't asked a court to review the State of Capture report.

Pilane-Majake proposed that the matter of reviewing the act be referred to the executive.

Mpumlwana disagreed with Pilane-Majake. He said the Bankorp judgment was binding and the matter shouldn't be referred to the executive.

ANC trying to 'impose a politically expedient position'

Horn also disagreed with Pilane-Majake. He said it was not correct that the executive should deal with the legislation, as Parliament was the legislative body, and the Constitution didn't prescribe that this was the executive's duty.

"We are duty-bound as Parliament to embark on a process of reviewing the legislation."

Committee chairperson Mathole Motshekga agreed with Mpumlwana that the Bankorp judgment was binding on the committee.

"We can't proceed," he said.

Horn asked that the DA's dissent be officially noted.

He said the ANC MPs were trying to "impose a politically expedient position", and that the committee hadn't even received a briefing from Parliament's legal adviser on the matter.

"Honourable Horn, you are right," Motshekga said.

He agreed to obtain legal opinion on the matter and postponed the discussion until next week.