December 14, 2018

Applause as Public Enterprises Committee’s ends first attempt at state capture inquiry

The only disruption to the Committee on Public Enterprises’ vote on its Report into its 2017 Eskom Inquiry was a brief delay to hunt for a pair of missing spectacles. It is not clear whether or not they were ever recovered but apart from the odd typo requiring correction, the Report moved smoothly and speedily through the voting process.

There was a bit of a rush at the end to be mover and seconder, and the Chair compromised by giving every Member the opportunity to individually second the motion, which was duly unanimously passed.

After the lengthy delays and drama involved in getting this investigation underway, the final Committee meeting could have been an almighty anti-climax.

This Report was nothing less than a heroic achievement.

Except that it wasn’t. While this meeting might have drawn little public or media attention, those who had been there from the start recognised that it was nothing less than a heroic achievement.

A year ago it looked like an impossible task. A clutch of parliamentary Committees had been called upon to conduct the equivalent of a full-scale commission of inquiry into the Guptas and state capture, as requested back in October 2016 by outgoing Public Protector Thuli Madonsela. At the same time former president Jacob Zuma was prepared to do anything to ensure that this would never happen.

One does wonder what Parliament had in mind when then House Chairperson Cedric Frolick wrote to four committees ‑ Home Affairs, Mineral Resources, Public Enterprises and Transport – instructing them to engage with the allegations of state capture “within the parameters of the Assembly Rules governing the business of Committees and consistent with the constitutionally enshrined oversight function of Parliament”.

Four separate committee inquiries were, at best, an innovative way of dodging the instruction of the PP. It was unclear what permitted the House Chairperson to issue his instruction as his authority extends to “scheduling and co-ordination” of Committee meetings, not telling them what to do.

The usual parliamentary practise of setting up an Ad Hoc or Standing Committee, as requested by the official opposition, was put to the Chief Whips’ Forum for discussion, and ignored, while Public Enterprise Minister Lynne Brown fluctuated between demanding to hold her own inquiry and calling the whole thing off.

At that point it did indeed look as if Parliament may be side-stepping the allegations of state capture, and possibly intending to leave the state-owned entities (SOEs) and senior members of the Executive untouched.

The Committees of Transport and Home Affairs did nothing at all. The Minister of Mineral Resources attended a couple of meeting, took offence to the line of questioning, and the meetings never resumed, which left the Public Enterprises Committee.

Then Acting Chairperson, Zukiswa Rantho, tried to point out the obvious when she said that Committees had never before been involved in such an investigation. It was Ad Hoc Committees that had the necessary resources.

She said at the time: “This Committee has [been given] the same resources as any other Committee of Parliament, but because we have this huge job we need more resources. We need experts, people who deal with finances, people who deal with technical issues of law that we as parliamentarians don’t know.”

Her letters to the Speaker of the National Assembly for additional researchers and legal staff got no response and a request from the Committee for Advocate Ntuthuzelo Vanara, Senior Legal Adviser at Parliament who had proved his mettle at the SABC Ad Hoc Committee, was at that stage turned down on the grounds that he was “busy”.

As months passed with no action, it indeed began to look as if Parliament didn’t really want an inquiry into state capture. But what they didn’t take account of were Rantho and her Committee who had decided they would do whatever was needed to “save our country [by making] sure our government is accountable”.

By the time it got its chance – that was around October 2017 – the Committee had gathered the resources that Parliament had failed to provide. The Committee was not alone. Legal and research support was forthcoming; civil society mobilised.

Thirteen months later Rantho was able to confirm at the final meeting of the Eskom Inquiry, “we all [are] supposed to be reliable members of Parliament, public representatives, Members of Parliament who want the right thing to happen in the country.”

A Committee member expressed his “wish” that the non-appearance of “certain individuals who had made spurious excuses” had been singled out in section 4.3 of the report, which dealt with “The difficulties the Committee encountered when it was seeking access to information from Eskom”.

He felt there was a need for a “paragraph which ventilated the efforts of the Committee to get those people to come to the Committee” and the “impact it had on the Committee’s efforts to do its work”. He wanted that to be known, even if for no other reason than to “ensure that if that behaviour repeats itself in the Zondo Commission you will be able to trace a pattern that started from this Commission”.

But he was assured by the meeting that the point was made elsewhere in the Report, where it states: “The Committee recommends to the National Assembly Speaker to institute action against Ms Dudu Myeni, Mr Duduzane Zuma, Mr Rajesh “Tony” Gupta, Mr Atul Gupta, and Mr Ajay Gupta, all of whom failed to honour their invitations to appear before the Inquiry.

In case there could still be any doubt about Committees’ right to subpoena, the Report included point 4.12.1: “The Committee recommends to Parliament to develop mechanisms through which individuals and institutions that refuse to appear before parliamentary portfolio committees after being duly summonsed in terms of section 56 of the Constitution, sections 14, 15 and 16 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, No 4 of 2004 and Rule 167 of the National Assembly Rules, could face consequences.”

The early morning meeting had been squeezed in before the bells were rung to call Members to a plenary in the House. But that was all the time that was needed. Most discussion focused on its Term of Reference, which spelled out that it was always meant as an “inquisitorial inquiry” and that a parliamentary inquiry has no powers beyond holding investigations and proposing recommendations.

Many of its proposals are already under consideration or now fall within the brief of the Zondo Commission. But of the almost 40 recommendations in the Committee Report, there are others that Parliament might like to give some serious thought to. For example, “The Executive must introduce the Shareholder Management Bill that was supposed to be introduced to Parliament in the 2017/18 financial year as promised by former minister Lynne Brown in her last budget speech. This piece of legislation is essential for strengthening oversight and defining the roles of SOCs and the Shareholder.”

Another recommendation was “that the Speaker of the National Assembly, with the assistance of Parliament’s Legal Services Unit, be requested within 60 days from the adoption of this report by the National Assembly, to refer any individuals who may have misled the Committee during their evidence to the relevant authorities for further investigation.”

The Committee further recommended that government should “request the National Treasury to review and strengthen the regulations on procurement, pertaining to State-owned companies, particularly those with large procurement budgets such as Eskom.”

But above all, Committee members urged Parliament to take very seriously recommendation 4.13, its final recommendation: “The Portfolio Committee recommends to Parliament to hand over this report, together with the documentation and the entire record of evidence collected in the course of the Inquiry to the Zondo Commission of Inquiry for further investigation.”

As a member put it: “We request Parliament to take this document and present it to the Zondo Commission ... Judge Zondo is waiting in anticipation for this Report.” It was clearly important to the Committee that its findings were handed over to the official inquiry into state capture. Only that would give Members the assurance that they had completed the job mandated to them “to the best of their ability”.

It’s been more just over a year since current Public Enterprises Committee chairperson Lungi Mnganga-Gcabashe described setting off on “a long road, but a road that the Committee had to travel”. There were anonymous threats, cars were followed, offices ransacked and Vanara, who did become evidence leader in the end, turned down a bribe from then State Security Minister, Bogani Bongo, to shut the process down.

Yet the shock findings that the intrepid Committee revealed in Parliament have been corroborated along with even more jaw-dropping evidence from the Zondo Commission.

“Much more has since been exposed,” said Mnganga-Gcabashe at the Committee meeting “But we are happy that we were able to finalise this report before Parliament rises. When we are done with the report today it will have to get into the parliamentary system. It will be out of our hands. Once we have sent it to the Zondo Commission our work will be complete. We [will] have done our job.”

It certainly can be of no doubt that this tenacious Committee did the job required of it. The Chairperson of the Inquiry, Zukiswa Rantho, summed it up. “We made our contributions, we made amendments, we have made corrections. This is the final report. The Committee has fulfilled its obligation of oversight.”

That left time for several rounds of applause before the House bells rang – for Rantho, for the Committee members, for citizens who made submissions, for the many staff who had worked flat-out in the background. Unusually the media, too, was thanked “for its support”.

Rantho was given time to deliver a few words and she thanked the solicitors who worked pro bono and the top academics who used their research skills to get at the truth. The Committee Members got their own tongue-in-cheek acknowledgement. “Thanks for forcing me to work under such enormous pressure. I did not know I had those skills”.

Then she thanked the public for its support, recalling how “the citizens of South Africa” had followed the proceedings, attending the hearings or watching proceedings on television as sittings went on beyond midnight.

All that is left is for the public to thank her and the Committee for starting to expose Eskom corruption amid state capture. Just because this meeting was uneventful does not mean it was unimportant. Just because strides have since been made in exposing state capture doesn’t mean the very first small steps will be forgotten.

Moira Levy

Read the diary into the Committee’s first attempt at the parliamentary inquiry into state capture.

Read the full report of the Public Enterprises Committee into the Eskom Inquiry

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  • Author: Moira Levy
Last modified on Thursday, 06 December 2018 21:21

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