Rescission of RMIPPPP Committee Inquiry

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Mineral Resources and Energy

08 March 2022
Chairperson: Mr S Luzipo (ANC)
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Meeting Summary

07 Dec 2021

Terms of Reference for Risk Mitigation Independent Power Purchase Procurement Programme (RMIPPPP) Inquiry

In this virtual meeting, the Committee rescinded a decision taken last year to conduct an inquiry into the allegation of corruption and malfeasance during the process to appoint preferred bidders in the Risk Mitigation Independent Power Producer Procurement Programme (RMIPPPP).
 
This resolution was taken following advice from Parliament’s Constitutional and Legal Services Office.  The advice referred to a High Court judgement that dismissed with costs an application to set aside the Department of Mineral Resources and Energy's decision to appoint preferred bidders for the RMIPPPP.

The decision was not unanimous. All six ANC Members voted in favour of the proposal to rescind the Committee’s decision, whilst the two DA Members voted against this proposal. The majority believed that the court judgement covered the inquiry's terms of reference and if the Committee were to institute a new investigation, it would only make the same findings. On the other hand, the DA argued that the judgement did not fully cover the terms of reference outlined by the Committee for the inquiry.

Meeting report

The Chairperson mentioned that the Committee would be briefed by the Parliamentary Legal Services on its opinion regarding the alleged irregularities that occurred during the RMIPPP procurement process.

Opinion on various issues in relation to the RMIPPP

Mr Andile Tetyana, Parliamentary Legal Advisor, Constitutional and Legal Services Office (CLSO), took the Committee through the CLSO opinion on the issues related to the RMIPP.

He indicated that on 26 May 2021 the Committee requested an opinion from the CLSO on whether the Committee could, one, institute a Parliamentary Inquiry into the RMIPPP procurement process, whilst the matter was also before the courts; two, whether the Committee has the legal authority to investigate procurement processes undertaken by the department before the process is concluded; three, if not, at which stage of the investigation above justifiable; four, under which circumstances the Committee will be justified to refer any matter to another Committee for further investigations. On 3 June 2021, the CLSO responded and said that no rule in the law prevents Parliament from investigating a matter merely because it is before the courts. The CLSO also said that the Committee is not restricted to investigating the RMIPPP, even if it overlaps with the issues probed by the court.

On 30 January 2022 High Court in Pretoria delivered the judgement on the DNG vs DMRE, which found that there were no irregularities related to the procurement process followed by the DMRE in awarding the RMIPPP to the preferred bidders. However, in its judgement, the court stated that the meeting between the Director-General (DG) and Deputy Director-General (DDG) meeting with bidders had not played a role in the awarding of the RMIPPP tender to preferred bidders. Although, the court condemned their decision to remain in the meeting once it became clear who the individuals they had met with were.

As the court found no irregularities regarding the RMIPPP procurement process, the CLSO advised the Committee not to institute an inquiry into the matter.

Discussion

The Chairperson opened the floor for discussion.

Mr K Mileham (DA) stated that there is a clear understanding by legal services on exactly what the inquiry was supposed to do; which is to investigate if the entire process of the RMIPPP had been above board. This, he said, is broader than the DNG urgent application. He asked whether the CLSO believes that the inquiry will be rehashing the findings of the court.

Mr M  Mahlaule (ANC) said that the terms of reference set out for the inquiry had been covered by the court. As a result, he felt that there was no basis for the Committee to continue with the inquiry, particularly as it would come to the same findings.

He added that the Committee would be wasting public funds if it were to continue with its inquiry, especially because the CLSO has warned them not to do so.

Mr S Kula (ANC) said that the presentation was thorough and thought-provoking. He explained that prior to instituting the inquiry, the Committee first asked the CLSO to provide it with a legal opinion on whether it could do so. Thus, he believed that it was wrong for Members to object to the legal opinion. He voiced his agreement with the legal opinion, particularly as it was based on the court ruling. Following this, he suggested that the Committee put the matter to bed and that it focus on other urgent matters.

He described the other Members’ desire to continue with the inquiry as forming part of a witch-hunt.

Referring to the Director-General (DG) and Deputy Director-General (DDG) meeting with bidders, he said that the court had stated that this meeting did not play a role in the awarding of the RMIPPP tender.

The Chairperson reminded Members to focus on only asking questions of clarity. Once the answers have been provided, the Committee would engage on the opinion provided by the CLSO.

Mr Tetyana, referring to Hon Mileham’s question, said that the inquiry centred around whether the procurement process was fair and not irregular, which the court judgement speaks to.

Mr M Wolmarans (ANC) mentioned that the presentation was thorough in providing all the relevant information.

Ms V Malinga (ANC) welcomed the presentation and said it covered all aspects requested by the Committee.

Mr Mileham asked the CLSO if the court findings address the terms of reference drafted by the Committee, which include the evidence leader, first, assessing the ability of the DMRE to discharge its fiduciary duties as it relates to the RMIPPP; two, looking into the affordability and sustainability of the RMIPPP projects; three, does it address the department’s failure to comply with the procurement prescripts; four, does it address governance-related issues, such as the conduct of the senior managers meeting bidders before the award was made; five, the circumstances of changing the hard deadline of the bids three times and does it address the environmental extensions set out by the bidders.

Further, he outlined that the Committee sought to assess compliance to relevant legislation, such as the PFMA, the National Environmental Management Act, the Competition Act and the Companies Act.

Mr Mahlaule said that if the Committee were to institute an inquiry, it should rather probe the attempts by the bidders to corrupt senior managers in the department, as most of the issues it wanted to inquire on have been covered in the court judgement. He added that the court found that both the DG and the DDG were not influenced by the bidders.

The Chairperson indicated that during the 5th Parliament, the Committee was informed that the only competent body to deal with issues related to legality and constitutionality, is the judiciary. Following this, he asked if this principle applies in this process. Two, he asked if the Committee, in light of this judgement, can continue with the inquiry. Three, he asked what action the Committee can take against the officials who had been condemned by the court as Parliament has a duty to hold members of the Executive to account.

Mr Tetyana mentioned that the Committee can request for the Minister to report on what action should be taken against his officials. 

Regarding the continuation of the inquiry, he clarified that the purpose of the inquiry would be to establish what the facts related to the procurement were. This function (fact-finding), was also done by the court, however, it goes beyond this and also makes legal findings, which is beyond Parliament’s mandate. All matters of dispute amongst citizens are settled in the courts. He added that DNG missed the court deadline of 18 February 2022 to appeal the judgement.

On the terms of reference, he mentioned that the judgement dealt with allegations regarding the irregularity of the procurement process but, it did not deal with the affordability of the project, as this is a policy issue that can only be dealt with by the department.

Touching on whether the Committee should institute an inquiry, he said that the decision to do so, should not be taken lightly. Furthermore, he advised that prior to making the decision, the Committee must form a prima facie view on the matter at hand and not only rely on media reports. If it did not do this, he believed that this would set a bad precedent and also, it would be a waste of funds.

Mr Mileham asked what rule of Parliament the CLSO was referring to when it indicated that the Committee must establish a prima facie case before inquiring in any case. He recalled that in a previous sitting, the Committee was informed by CLSO that it did not require a prima facie case when instituting an inquiry. He described this as wrong legal advice.

He said that it was suspicious that Members are looking not to institute the inquiry due to a court judgement that only referred to one specific matter. The aim of the inquiry was to look into how the procurement process was conceived, implemented and managed and as Members of Parliament, they have a duty to investigate the matter. 

Mr Wolmarans elaborated that during the Committee’s discussions on the inquiry, the focus was on the meetings (between the officials and the bidders) and the alleged undue influence asserted by the bidders over the procurement process. He added that many of the issues the Committee wanted to investigate have been dealt with in the court judgement and as a result, he requested that Members not continue with inquiry.

Mr J Lorimer (DA) said that the CLSO seemed to want to steer the Committee towards not instituting an inquiry. In its presentation, the CLSO has represented the judgement as clearing both the DG and the DDG, whereas it has not done so. Instead, it condemned their decision to remain in the meeting once it became clear who the individuals they had met with were. He asked who would hold them to account, particularly as the Minister has been implicated by the State Capture Report.

He also mentioned that civil society and energy experts took issue with how the procurement process unfolded. He felt that by not instituting the inquiry, the Committee will not be conducting its oversight responsibilities.

Ms Malinga explained that the Committee framed the terms of reference around the complaint laid by DNG. After noting the complaints, the Committee requested that the CLSO provide it with an opinion on whether to institute an inquiry.

As the court was displeased with the conduct by the DG and the DDG, she suggested that the Committee request that the Minister and his team be called to account for this. However, as the court did not find issues with the procurement process, she recommended that the Committee not institute the inquiry, as it would be a waste of public funds.

Mr  Mahlaule indicated that some Members describing the decision to do away with the inquiry as suspicious amounted to bullying. Furthermore, he felt that their objections to the CLSO’s advice centred around racism, as the representative delivering the opinion in the meeting was a Black African Male.

He requested that the Committee not institute the inquiry, as it would arrive at the same conclusions as the court in its judgement, which would be a waste of resources.

Mr Lorimer called Mr Mahlaule to order for accusing Members of the DA as being racist. He asked that the Chairperson should not allow for Members to personally attack one another. 

The Chairperson requested that Mr Lorimer not undermine his position as the head of the Committee and indicated that he will give him time to address the remarks made by Mr Mahlaule.

He explained that on the eve of the tabling of the matter, the Committee had debated two letters, which requested that the DMRE should not procure fossil fuels for the RMIPPP. Following DNG’s decision to take the matter to court, Members agreed to rescind its decision to institute an inquiry. It was also agreed that before a new inquiry process was instituted, the Committee would seek legal opinion from the CLSO on whether Parliament could do so, whilst the matter was before a court of law. CLSO confirmed that the Committee could do so if there is no judgement on the matter.

Whilst he agreed that it is the responsibility of MPs to conduct oversight when required, however, in this case, the CLSO has advised that the Committee not continue with the inquiry. He added that if there is an issue with the conduct of the officials in the department, the Committee must conduct oversight on it.

On the rules of Parliament, Mr Tetyana explained that they did not cover all of Parliament’s tasks. Committee Members are expected to obtain the details of a matter first before they can institute an inquiry.

Mr Mileham informed Members that DNG has filed papers to appeal the judgement. 

He added that it was hypocritical for Members to accuse his party of bullying because it supports instituting the inquiry.

Mr  Mahlaule raised a point of order, indicating that he had not said that Members were being bullied by DA Members.

The Chairperson clarified that Mr Mileham had not made reference to a specific Member, only towards the statement.

Mr Mileham said in a meeting in August 2021, the CLSO had said that there is no rule or law which states that Parliament cannot inquire or compile a report on a matter if it is before the courts and if it saw fit, the Committee could institute an inquiry into the RMIPPP process as a whole. In that same meeting, the members all agreed that the Committee should proceed with the investigative inquiry. He added that through this process, the Committee is trying to determine the facts about what had occurred, following which, a report will be tabled to Parliament. It was unfair to describe the proposal to continue with the inquiry as a witch-hunt.

He believed that there was no legal requirement for the Committee to have a prima facie case before instituting an inquiry.

He felt that if the Committee decided not to institute the inquiry, it would be abdicating from its responsibility to hold the Minister and his department to account. Whilst it can recommend that an individual be referred for criminal charges, the Committee cannot instruct the department to fire officials.

Mr Lorimer indicated that the Chairperson had not entertained his point of order but did so for other Members. He requested that he make a ruling on the unparliamentary language used by Mr Mahlaule.

The Chairperson disputed that he had ignored his point of order.

Mr Lorimer said that the Committee must consider what action it will take if the Supreme Court of Appeal upholds DNG’s appeal.

Mr  Mahlaule asked if the Committee could be furnished with BNG’s appeal documents. Additionally, he also asked how it was able to file its appeal, as it was mentioned that the deadline was 18 February 2022. 

Mr Kula also asked for further information on the appeal. Additionally, he asked if the appeal would prevent the Committee from making a decision on whether to institute an inquiry or not.

He appealed to Members to consider doing away with the inquiry so that they could focus on other pressing issues, such as the intermittent load shedding. If the RMIPPP process were to continue to be stalled, the country would not be able to meet its energy requirements and grow the economy.

He said that the minority views of the Committee were based on white supremacy.

Mr Mileham raised a point of order.

The Chairperson granted it.

Mr Mileham took issue with Mr Kula’s remarks and asked that the Chairperson rule them as unacceptable and that he withdraw them.

The Chairperson mentioned that he would not do so, as those were his own personal remarks, hence he asked that Members focus on the matters at hand.

Mr Mileham asked that he note the DA’s objection to his ruling and that it will refer the matter to the Rules Committee.

Mr Kula said that the dissenting views have failed to convince the majority of Members on why the inquiry should be instituted.

Ms Malinga asked if the courts allow for litigants to submit their appeals later than the deadline.

The court judgement presented by the CLSO did not find issues with the procurement process, rather, it was appalled by the behaviour of both the DG and DDG. She asked what the Committee would request the evidence leader to investigate. She supported not instituting the inquiry.

The Chairperson said there are two views for the Committee to consider: one, that it does not accept the recommendations from the CLSO, and that it continues with the review. Two, that the Committee not institute the investigation, bearing in mind that the court judgement delivered in DNG’s urgent application has addressed the terms of reference. He added that the CLSO is the competent authority that provides legal advice to the Committee.

He asked for Members to indicate whether they support instituting the inquiry or not.

Mr Mileham said that as the Committee’s decision to conduct an inquiry is on record, to proceed with the motion, Members would first have to rescind its decision.

The Chairperson asked CLSO if this was the correct procedure to follow.

Mr Tetyana said that the Committee is permitted to make a decision on instituting the inquiry or not.

The Chairperson asked which Members supported rescinding the Committee’s prior decision to institute an inquiry, considering the advice provided by the CLSO.

Mr Mahlaule advised that a Member first propose a motion to rescind the decision made by the Committee, in light of the advice provided by the CLSO.

He proposed that, in light of the opinion provided by the CLSO, the Committee rescind its decision to proceed with the Parliamentary inquiry into the procurement process of the RMIPPP.

Mr Wolmarans moved for the adoption of the motion.

Mr Mileham objected to the adoption of the motion.

Mr Lorimer seconded the objection of the motion.

The Chairperson asked for a seconder for the proposal to rescind the decision to proceed with the inquiry. Additionally, he asked how many Members had agreed to the proposal.

Mr Mahlaule mentioned that all six ANC Members on the platform supported the proposal to rescind the decision to proceed with the inquiry.

Mr Mileham indicated that both Members representing the DA objected to the proposal.

Mr T Langa (EFF) asked if the Chairperson also forms part of the number of people who are permitted to vote.

The Chairperson said that as a Member of the Committee, he is permitted to cast a vote on motions tabled.

He indicated that the Committee’s decision to institute a parliamentary inquiry into the procurement process of the RMIPPP had been rescinded.

Mr Mahlaule indicated that all political party representatives in the Committee must state their position on the matter, for record purposes.

Mr Mileham proposed that the Committee institute an inquiry into the entire RMIPPP process.

Mr Lorimer moved to support the proposal.

Mr Mahlaule objected to the proposal.

Mr Wolmarans seconded the objection to the proposal. 

The Chairperson indicated that two Members voted in favour of the motion, whilst six voted against it. Thus, the motion to institute an investigative inquiry into the entire RMIPPP process failed.

He said that the Committee will now have to compile a report, which will then be discussed and adopted.

Correspondence to the Committee

The Chairperson asked that the Committee Secretary summarise the correspondence the Committee received from civil society. 

The Committee Secretary indicated that a group of individuals has asked to brief the Committee on the Grand Inga Project.

The Committee received a petition from workers at Harmony Gold Mine, requesting intervention.

Additionally, the Committee received correspondence from a community in Rustenburg, who complained about the effects that the dust from nearby mines has on their health.

The Chairperson asked Members if they should schedule a virtual meeting with the community from Rustenburg. 

Mr Mileham moved to support the proposal.

Mr Mahlaule seconded the proposal.

The Committee then moved to adopt the minutes for the meeting on 26 February 2022.

Adoption of minutes for the meeting on 26 February 2022

The Chairperson requested a mover for the adoption of the minutes.

Mr Kula moved for the adoption of the minutes.

Mr Wolmarans seconded the adoption of the minutes.

The meeting was adjourned.

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