Documents Handed Out: Parliamentary Legal Advisor opinion on "leaked emails" issue to Public Enterprises. (Handed out only to Committee Members)
The main agenda item for the meeting was the further Committee deliberations on media allegations on “state capture” that involved the Minister of Mineral Resources, Mr Mosebenzi Zwane, who was supposed to face further questioning by Committee members. He was unable to attend the meeting, however, citing a Cabinet meeting and other business issues. The Director General of the Department of Minerals Resources (DMR) informed the Committee that the Ministry would respond by Friday, 3 November 2017, on alternative dates.
An important aspect of the meeting was a detailed briefing by the Senior Parliamentary Advisor on how the Committee should proceed on the matter going forward. He said that in terms of the Constitution and Parliamentary rules governing the Committee, it had all the necessary rights to proceed with this investigation. A key development was whether the Committee could proceed with an enquiry, or if this was merely a general oversight Investigation in terms of the Committee’s oversight role to ensure that the Minister was held accountable for his actions.
This matter was similar to the Parliamentary legal advice given to the Portfolio Committee on Public Enterprises investigating the “leaked Gupta emails.” In his view, therefore, this investigation process was a general oversight issue and not an enquiry. General oversight meant the Committee had more leeway and freedom on the nature of its investigation and outcomes and suggestions of the way forward. It would not be subjected to the specified rules and processes that governed a Parliamentary enquiry investigation.
The Committee’s discussions centred on what the appropriate process was to follow, to ensure the issue was resolved speedily. All agreed that a new date had to be agreed with the Minister urgently. An agreement was reached within the Committee that it had first to conclude its questions to the Minister before it could decide on an appropriate course of action based on its findings.
Members could not reach consensus on the type of questions they would ask the Minister. The ANC favoured questions related to mineral resources, while the DA felt the questions had to be broader and should encompass the role of Mr Zwane as a Cabinet Minister, as against a narrower role of being only the Minister of Mineral Resources. The Chairperson suggested that the issue be looked at when they engaged the Minister, as the context of the questions could then be reviewed.
The Chairperson said that all had to be aware that it was politics and Parliamentary rules that governed Members’ actions on Committee issues. Sometimes it was difficult, but as long as Members operated within the rules of Parliament, there should not be problems.
Chairperson’s Opening Remarks
The Chairperson welcomed Advocate Thabo Mokoena, Director General: Department of Mineral Resources and Advocate Frank Jenkins, Senior Law Advisor: SA Parliament, to the meeting.
There was also a large media contingent present.
He said there were two issues that needed to be addressed today - further questions to the Minster of Mineral Resources and the Committee discussion on his responses - as agreed in the previous Committee meeting.
This was, however, not possible now as the Minister had written to the Committee indicating he was unable to meet with the Committee today, due to Cabinet meetings and other business issues. The Chairperson indicated that the letter advising the Committee of his non-attendance was dated 31 October 2017.
The Committee had also written to the Parliamentary Legal Unit to ask for assistance to guide the Committee on the way forward on this issue, based on the legalities involved, and Advocate Jenkins had been “allocated” to the Committee to provide assistance.
The Chairperson added that the letter from the Minister did not give any indication of when he could meet with the Committee, and wanted input from Members on the way forward.
Nkosi Z Mandela (ANC) wanted to know if the Minister had given any indication of when he would be able to meet the Committee.
Adv H Schmidt (DA) said the Minister had to be given a reasonable opportunity to give his views on the the issue, but he believed there was already enough evidence for a full enquiry. He also wanted to know on which other date the Minister was available.
The Chairperson responded that the Committee had to drive the process, as the reply from the Minister had not indicated any availability date. He had also met the House Chairperson to ensure that days other than Wednesdays – the Committee’s meeting day -- could be used if Wednesdays were not available. He reminded Members that this was not an enquiry, but merely a request from the House Chairperson for the Committee to exercise its oversight role to investigate allegations of state capture.
Mr J Lorimer (DA) said he was convinced there were numerous questions for which the Committee had not had answers. When requesting dates from the Minister, the Committee had to be flexible. He further wanted to know if the Committee was not empowered via its oversight role over the Executive, to set a date and compel the Minister to attend?
Adv Schmidt said that perhaps Adv Jenkins was better placed to advise the Committee on the aspect raised by Mr Lorimer.
The Chairperson asked what would happen if the Minister suggested an “unreasonable” date - it meant therefore that the Committee had to take the lead on this. He wanted to know if the DG, Adv Mokoena, could indicate when the Minister could attend a meeting with the Committee to finalise this issue.
Adv Mokoena said the Minister would advise him during this week and he would get back to the Committee at the earliest opportunity.
The Chairperson requested that he respond by Friday 3 November, and if was possible for the Minister to give the Committee two dates.
Mr Mandela suggested the Committee should await the legal opinion from the Parliamentary Legal Advisor before deciding what to do.
Mr Lorimer said he agreed with the Chairperson, but that there should be a time limit. The date should be within the next two weeks.
Adv Mokoena said he would respond to the Committee on the Minister’s availability by Friday 3 November.
The Chairperson asked Advocate Jenkins to give the Committee a legal view on how to proceed on this issue.
Briefing by Parliamentary Legal Advisor
Adv Jenkins advised that he would provide his input based on a similar Parliamentary inquiry with similar aspects, regarding the process to follow by the Committee. He was referring to the report on the “leaked emails” to the Public Enterprises Committee. His outline for the Committee would be similar to what was suggested in the above case. He made the following points:
- The South African Constitution. He said there was enough constitutional evidence that “authorised” the Committee to go ahead on this matter. He cited various sections of the Constitution: Section 42, which provides for the National Assembly (NA) and National Council of Provinces (NCOP) to have oversight over the Executive; Section 55, which states that the NA had to ensure that the Executive and organs of the state are accountable; Section 56, which gave authority that any one could be summoned to appear before Committees; and Section 57, which provided for the Committee to have or to make its own arrangements and procedures (i.e. it could decide how it wanted to conduct its work). Based on all of these, he advised that the Committee was competent to investigate on the matter.
- Freedom of speech. Parliamentary privilege meant that there was no liability when engaging on matters with others in Committee meetings. Officials, however, did not have this privilege.
- Parliamentary enquiries. He said these enquiries meant that they had to be done in a specific manner and that once an enquiry had been approved, the procedure, schedule and rules were all set out and had be followed. This statutory provision usually meant that Parliament would come to a finding or ruling on the matter, and an action on the way forward.
- General oversight. This was different to enquiries, as it involved only oversight over the Executive and organs of the state. Ministers and Deputy Ministers were responsible for their own powers and functions, but had to report to Parliament on these. Whereas an enquiry usually led to actions – for example, sanction or punishment being taken in line with agreed Parliamentary procedures -- general oversight resulted only in the Committee arriving at a decision and could make its own recommendations on the ay forward.
Adv Jenkins said that in his opinion, this case before the Committee was a general oversight issue, and not an enquiry. The Committee was free to use its own resources and plans to engage with the Minister on allegations of “state capture” and based on the responses, compile a report which could be used to determine further action, if any.
He did indicate that there were risks associated with this approach, notably that the Committee may struggle to get a witness to attend due to reluctance, whereas in an enquiry, witnesses had no option as they had to be present. As a last resort, the Committee could summon a witness to attend, aligned to Parliamentary procedures, but this was also risky, so it was better for a witness to appear voluntarily, i.e. writing a letter to the Minister requesting a date to attend a meeting.
Adv Jenkins said care had to be taken when using the “sub judice” rule. He did not think it was applicable in this instance -- even if there was a court case, it did not mean that the Committee could not engage or ask questions on an issue.
The Chairperson said he felt tempted to say that now that the Committee had been briefed by the legal advisor, it was perhaps better to revert to the position the Committee had taken the last time, which was to complete Phase I (questions to the Minister), before deciding on Phase II (next steps).
Adv Schmidt said that it was a pity the Committee had not received this briefing earlier, as it would have shaped the Committee engagement differently, particularly on the sub judice matter. He wanted to know if this meant there could now be a case for a more formal investigation going forward.
Nkosi Mandela said there was now clarity on the role of the investigation - general oversight, and not an enquiry. He wanted to know if the nature of questions to the Minister on state capture allegations had to be confined to mineral resources, as some of the questions asked thus far did not relate to it. For example, there were questions on a dairy in Vrede, in the Free State , which was outside the mandate of this Committee.
Mr Lorimer wanted to know if Adv Jenkins could give the Committee advice on a “ standard test” or specific guideline that would turn a general oversight process into an enquiry. Was there a threshold that propelled a general oversight process into an enquiry?
Advocate Jenkins responded on the issue raised by Nkosi Mandela, saying that he agreed, as in order for the Committee to be effective and efficient, it was best that non-mineral issues were not dealt with in the Committee. He felt that the issue on the dairy in Vrede was perhaps best dealt with in the Portfolio Committee on Agriculture, Forestry and Fisheries.
In response to Mr Lorimer, he said that there was no legal or juridical threshold or test that pushed a general oversight process into an enquiry. This depended on the nature of the enquiry and how the Committee viewed the findings from the oversight investigation. The decision was up to the Committee. Often this was driven by a political agenda, but had to be dealt with in terms of how the Committee functioned and had to be aligned to Parliamentary rules. It was obviously a complicated matter, but he felt that as long as the Committee responded to the questions as raised by the House Chairperson, it would help them in addressing the issue and how to go forward on it.
A statutory enquiry with a finding resulted in specific actions, such as dismissals, penalties and other consequences, while a general oversight outcome meant an issue that was previously “under wraps” was now out in the open for all to see and make judgments on. One of the impacts could be how citizens voted in future.
The Chairperson said that the Committee could not finalise its views until it had completed its questions to the Minister. Another critical aspect was that the letter from the House Chairperson to this Committee was not necessarily the same as those sent to other Committees. For example, the letter to the Portfolio Committee on Home Affairs dealt specifically with the naturalisation of the Gupta family members, so an approach for one committee did not necessary mean it was the same as for another.
He refreshed the issue for Committee members, saying the House Chairperson’s letter had asked the Committee to investigate media allegations of state capture against the Minister of Mineral Resources and to report on the matter to him as a matter of urgency. When the Committee had written back to the House Chair to ask for guidance or a term of reference to help and guide them in their investigation, the House Chair had responded that the Committee had to use its broad powers in terms of the Constitution and Parliamentary rules. Hence the approach by the Committee - to invite the Executive and question him on the allegations (Phase I) before moving on to Phase II (what actions to take, based on the responses from the Minister)
The Chairperson said that politics and Parliamentary rules always governed Members’ actions on Committee issues, and it would be no different in this case. Neither the Committee Chairperson, nor even the Speaker of the House, could instil his or her own will on an issue.
To ensure that all Committee Members were still “on the same page,” he reiterated what had been agreed earlier, which was to reserve 09h00 to 11h00 to question the Minister, and 11h00 to 13h00 for the Committee to meet and discuss the issue.
Adv Schmidt said he agreed and would support this approach, but he felt that one could not refrain from asking questions on non-mineral issues. The main driver was not the fact that Mr Zwane was the Minister of Mineral Resources, but that he was a Cabinet Minister and as such, issues of alleged state capture would be linked to his position as Minister, not as the Minister of Mineral Resources.
The Chairperson said he did not want to rule or agree an approach now, and urged Members to discuss this as part of the questioning of the Minister. Based on the context of the questions, the Committee could decide the way forward on this issue.
Nkosi Mandela wanted to know if the Committee could agree on what questions to ask the Minister. He was uncomfortable with the overall basis of the investigation, which was based on media speculation and allegations. Some of the issues were not even related to mineral resources. He also was concerned that the Committee would not be able to conclude its questions to the Minister in the allocated two hours.
Mr I Pikinini (ANC) said he supported the suggestion by Mr Schmidt. He felt it was futile to engage further on the matter, as the Committee had now received input from Adv Jenkins which would guide its actions going forward. He supported the proposals made by the Chairperson.
The Chairperson finalised proceedings by saying that previous meeting records on this issue indicated that Members had not finished questioning the Minister, so this had to continue to enable the Committee to conclude Phase I of its investigations and move on to Phase II. Whether questions asked by Members were relevant or not, could be decided upon when the Minister was engaged. He emphasised that the Committee had to exercise its oversight powers to ensure the Executive was accountable for its actions.
The Chairperson thanked Advocate Jenkins for his advice to the Committee on this complex issue and requested him to attend the Committee’s session with the Minister. He reminded DG Mokoena to revert to him by Friday 3 November.
The Committee minutes of 25 October were accepted without amendments.
The meeting was adjourned.
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