Protected Disclosure Complaint against Minister Gordhan: Parliamentary Legal Advisor briefing

Meeting report

Briefing by Parliamentary Legal Advisor

The Portfolio Committee was briefed by the Parliamentary Legal Advisor on the protected disclosure complaint referred to the Committee by the Speaker of the National Assembly. The complaint was made by the suspended Director-General of the Department of Public Enterprises, Kgathatso Tlhakudi, accusing Minister Gordhan of wrongdoing in South  African Airways (SAA’s) deal with Takatso.

Mr Andile Tetyana, Legal Advisor from Parliament's Constitutional and Legal Services Office (CLSO), said that the Portfolio Committee had failed to meet the prescribed timeframes which specified how long before the respondent, Mr Tlhakudi, should expect correspondence. The Act stipulated that six months after a matter had been referred to Parliament, the relevant Committee should respond to the complainant and cite reasons as to why the matter would be investigated or not. The response should also include the timeframe in which the complainant could expect the conclusion of the said investigation.

Mr Tetyana referred to several statutes, including the National Assembly rules, which state that a Portfolio Committee may monitor, investigate, enquire into and make recommendations concerning any organ of state, constitutional institution, and legislative programme, budget, structure and functioning. Accountability was one of the founding values of the Constitution, and section 1d adopts the multiparty system of South Africa's democratic government to ensure accountability, responsiveness and openness. Section 41 (1) c states that all spheres of government and organs of state must provide an effective, transparent, and accountable government.

He also referred to the judgment in a case between the EFF and the Speaker, where the principle of accountability was emphasised. One of the crucial elements of the Constitution was to make a decisive decision against the abuse of power by the state that was institutionalised in the apartheid era. The principle of accountability had been adopted to achieve this goal, including the rule of law and constitutional supremacy. Public office bearers ignore their constitutional obligation at their peril, because constitutionalism, the rule of law and accountability constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity.

Mr Tetyana told the Committee that the National Assembly had an open-ended mandate in the performance of its oversight of the executive. He referred to the abovementioned case again, and quoted former Chief Justice Mogoeng Mogoeng's statement on the primary and undefined obligation imposed on the National Assembly to hold the executive accountable.

The Constitution did not detail how the National Assembly should discharge the guilty, nor were there mechanisms or hints given on how to do so. Both sections 42 (3) and 55 (2) did not define the structures in which the National Assembly should operate in its endeavour to fulfil its obligations. It had been given leeway to determine how best to carry out its constitutional mandate.

Mr Tetyana advised the Committee to forward the said allegations by the suspended Director-General of Public Enterprises, Mr Tlhakudi, to Minister Gordhan so that there would be a response in writing. Only after the Committee had engaged with the Minister's response would it be able to correctly address the issue. The issue was still premature, as the Committee was awaiting Mr Tlhakudi's response to Minister Gordhan.

See attached for full legal opinion

Discussion

Ms J Mkhwanazi (ANC) said the legal advice received by the Committee had shown that it was dealing with a matter of national importance that could not be ignored. She proposed that the Committee heed the advice given by Mr Tetyana, and wait for the complainant's response to Minster Gordhan. She asked for the Committee to be given more advice on the timeframe that they should follow when dealing with this matter.

Mr G Cachalia (DA) referred to the principle of audi alteram partem, which encourages both sides of a story to be heard. Following the same principle, Minister Gordhan responded to the allegations made by the Director-General of Public Enterprises, Mr Tlhakudi. Mr Cachalia added the audi alteram partem principle had already been adhered to when Minister Gordhan responded, and that there was no need to wait for another round of responses by both parties to the matter. Waiting for Mr Tlhakudi would delay the matter, because the Committee already had the facts of the case.

Ms O Maotwe (EFF) said that the Committee should convene and initiate an enquiry into the sale of SAA and the allegations levelled by Mr Tlhakudi. The allegations against Minister Gordhan were very serious and should not be ignored. She acknowledged Mr Tetyana's suggestion that the Committee wait for a response, and added that they should be furnished with a timeline for the Committee to deal with the matter.

She said that as Members of Parliament, they should initiate an enquiry into the sale of SAA and the undervaluation of assets. She suggested that the appointment of the new Board be put on hold until the Committee was satisfied that there were no wrongdoings in the sale of SAA. Lastly, she asked that the Committee write to the Speaker to find out about the processes followed in appointing the new Board.

Mr N Dlamini (ANC) said that the issue at hand raised two fundamental points. The first one was the legal aspect, and the question of whether it was a protected disclosure or not. The second part was the Committee's reaction to the allegations and correspondence.

He asked if the Committee should respond, define the rules, and deal with facts, not rumors. He added that the allegations made by Mr Tlhakudi were not in any way accompanied by evidence to support them. The Committee had the responsibility to protect its integrity.

He asked that the Committee note that the individual levelling allegations against the Minister had, on multiple occasions, led presentations to the Committee on issues relating to SAA. The Committee had raised some of the issues raised in the allegations by Mr Tlhakudi on multiple occasions, and his responses had been contrary to his current claims. He asked if Committee Members would allow the Committee to be used in the battle between Mr Tlhakudi and Mr Gordhan after the integrity of Mr Tlhakudi had been severely compromised.

He questioned the submission by Ms Maotwe that the appointment of the new SAA board should be halted. He asked if this was based on a newspaper article or on the unproven allegations by the former Director-General. Lastly, he added that the Committee should be careful in its approach to the matter and not be pulled into a space where they would be endorsing rumours.

Mr F Essack (DA) asked for clarification from Mr Tetyana on Mr Tlhakudi's claim that his 60-day suspension was unconstitutional. He asked for Mr Tetyana's comment on this.

Ms R Komane (EFF) suggested that the Committee should not dwell on whether the allegations against the Minister were hearsay or not, but should rather focus on investigating the matter with the aim of separating the hearsay claims from the truth. She added that it was prudent for the Committee to investigate the claims made by Mr Tlhakudi as soon as possible, and to discuss times on which they could expect responses from all the parties involved.

Mr Cachalia said that the Committee had on previous occasions accepted Minister Gordhan's reasons for non-disclosure, but the allegations against him had provided the Committee with an opportunity to test the grounds on which disclosure and non-disclosure could be accepted. The importance of the issue and the duties of the Committee were an indication of why the allegations against Mr Gordhan should be treated with urgency.

Ms Mkhwanazi explained that her suggestion was not too different from that of other Members. She added that the advice received from the legal advisor should be considered. It was important for the issue of the Board and the allegations against the Minister to be separated to avoid confusion. She asked that the Committee be advised of the timelines in which the Committee could deal with the matter of the Minister, Mr Tlhakudi, and the SAA.

Mr S Gumede (AC), who had later taken over the role of the meeting's chairperson from Mr Magaxa, commented that it had been less than six months since this matter had been brought to the Committee, which had been the period prescribed by Parliament's Legal Advisor. He reminded the Committee that Mr Tetyana had advised the Committee to allow both Minister Gordhan and Mr Tlhakudi to come before them and answer questions that the Members may have. It would be after this meeting that the Committee would then decide on how to proceed with the matter. He said the Committee was unable to discuss the matter even if they wished to do so, because both parties to the matter had not been interrogated yet.

Legal advisor's responses

Mr Tetyana responded to Ms Mkhwanazi's question on the timelines given to the Minister and Mr Tlhakudi, and referred to a letter he sent to the Committee secretariat. The Chairperson of the Committee had given Mr Tlhakudi ten working days to provide a reply to the Minister's response.

He responded to Mr Cachalia regarding the audi alteram partem principle, and agreed with him since the Minister had responded to the allegations made by Mr Tlhakudi. He referred to application proceedings where an alleging party was given a second opportunity to provide another response after the respondent had replied in writing.

He also referred to section 57 of the Constitution, which states that the National Assembly may determine and control its internal arrangements, proceedings and procedures. This was further amplified in Rule 167 of the National Assembly rules, which states that to perform its functions, a Committee was subject to constitutional legislation.

Mr Tetyana reminded the Committee Members that his duty was to give the Committee advice and that they had the right to accept or reject it. It would be premature to discuss the proceedings of an enquiry, as there had been a letter sent to Mr Tlhakudi by the Committee Chairperson, which had not been responded to.

Mr Tetyana responded to the question of protected disclosures, and said that he considered this matter to be a protected disclosure according to section 9 of the Protected Disclosures Act. A senior official had presented information, and it would not be in the court's best interests to ignore it. He referred to a question in the State Capture Report by Chief Justice Zondo, where he had asked where Parliament was when everything detailed in the report was happening. The Committee would have to engage with this matter in detail.

Mr Tetyana responded to Mr Essack, and said that the question of the 60-day timeline did not arise, as the Committee was not at a stage where they were dealing with the merits of the case. Information had merely been presented to them, and they had reserved their right as a Committee to decide what to do with the information.

Mr Gumede, the meeting's acting chairperson, thanked Mr Tetyana for his responses and told the Committee that Mr Magaxa, the Committee Chairperson, would then be asked to fast-track the next meeting where the next steps would be discussed.

Mr Disang Mocumi, the Committee Secretary, alerted Mr Gumede that he had just received the anticipated response from Mr Tlhakudi, and asked for permission to read it to the Members.

Acting chairperson Gumede allowed him to read it for the benefit of the Members, and asked that he circulate it amongst all the Members.

The email stated that the matter should be handled transparently in an open hearing. That would be the only way forward, as it was not a bilateral discussion between Mr Tlhakudi and the Minister. It stated that the Committee was integral to the engagement and should make the ultimate determination based on information they would have gathered. The Committee should invite all the affected parties in the SAA transaction to come and give their input.

Acting chairperson Gumede said it would have been appropriate for the Committee to receive a similar letter from the Minister, to ensure that all parties were given the same opportunities. He asked that the letter be noted, circulated and made available at the next formal meeting. He also added that all parties had to be notified of the letter the Committee had just received, as they were waiting for an invitation. Mr Tlhakudi's presence would be mandatory to allow the Committee to interrogate him, which would assist the Committee in making the best decision.

Ms Maotwe said that the Committee's legal advisor, Mr Tetyana, was confused and that the idea of an enquiry could not be premature based only on a letter sent to Mr Tlhakudi. She asked that the Committee hold an enquiry on considering the principle and the Constitutional Court judgment that stated that Members of Parliament ought to hold the executive accountable.

She said that the enquiry would not be rushed and held on the following day, but it was more sensible to discuss a way forward at the meeting and not wait for the Chairperson to set another meeting for that.

She added that it was not true that no evidence supported Mr Tlhakudi's claims and that there was no reason to expect a presentation of the evidence before the enquiry. The allegations made by Mr Tlhakudi could not be said to be unfounded when there had not been an enquiry into the matter. She asked that the Committee move as one in holding the executive accountable, unless Members from the same political parties would choose to protect each other at all costs.

Ms Maotwe said it should not be that the party with the majority of the seats in Parliament would not listen to issues presented against one of their own. The Committee had already agreed that there was an issue on the table, and the people of South Africa deserved to know the truth about what had happened. There was no need to wait for the next meeting when the Committee had just received a response.

Acting chairperson Gumede asked that the legal advice given to the Committee by Mr Tetyana be taken, regardless of the response that had just been received. He added that it was not that the idea of an enquiry was opposed, but the Committee had to follow due processes to ensure that they were satisfied with their findings. Mr Tlhakudi would have to present himself to the Committee, and a subpoena would be enforced against him should he refuse to present himself to be interrogated.

Mr Dlamini said that the letter that had just been received and read to the Members had just created another problem when considering the principle of audi alteram partem. The Minister would have to be present to respond to the letter. The matter had been brought to the attention of the Committee and not the Minister, and it should be the Committee that gravitates towards finding a solution. Both the Minister and DG Tlhakudi would have to present themselves to the Committee so that there could be a way forward.

Mr Cachalia said that the facts of this matter were quite simple. Allegations had been made and there had been a response. The legal advisor had then said that the process would be enriched if Mr Tlhakudi was afforded an opportunity to respond to the Minister. He added that expecting another response from the Minister would be like engaging in a tennis match.

Acting chairperson Gumede asked once again that the Committee follow due processes and take the legal advice given by Mr Tetyana.

Mr Tetyana responded to Mr Cachalia, and said there was no need to wait for another response from Mr Tlhakudi, as the secretariat had informed everyone in the meeting that the response from Mr Tlhakudi that they had been waiting for, had been received. This had changed the dynamic of what he had recommended earlier in the meeting, because the response from Mr Tlhakudi had not been received at the time. The Committee could not afford to fail to exercise its constitutional obligation. The Committee was now in a position to deliberate on a way forward.

Ms Maotwe thanked Mr Tetyana for explaining, and asked that the Committee speak with one voice and call for a Parliamentary enquiry into the sale of SAA.

The Chairperson said that the Members had come into the meeting wanting to rush and be preoccupied with positions. He said the Committee would not be doing its oversight work by rushing into this. The Committee had received legal advice, and a response from Mr Tlhkaudi and Minister Gordhan. The Committee could not jump to the decision of calling an enquiry without looking into the Minister's response. The Minister had to be called and present his input concerning what he had written in his letter. The suspended Director-General must be afforded the same opportunity. He added that rushing into an enquiry would be too desperate.

Mr Cachalia said that he agreed with what the Chairperson had put forward, provided that the Minister was summoned to the Committee's next meeting. The Committee needed to interrogate the Minister about the allegations at the next meeting.

Ms Mkhwanazi said that she was in support of the suggestion and processes outlined by the Chairperson.

Ms Komane said she was not disputing what had been submitted, and the Chairperson did not understand what she was putting forward. The possibility of an enquiry should not be discarded, because Mr Tlhakudi had made himself available and had asked for the process to be transparent.

Second term programme

Mr Mocumi presented the Committee's second term programme. He said that this term would mostly focus on annual performance plans, and budgets of departments and state-owned enterprises. The Committee would be receiving a presentation in the following week where the audit outcomes of annual performance plans would be discussed.

Mr Mocumi presented the rest of the programme, and Members agreed with the programme.

Ms Mkhwanazi asked that the Committee Secretariat and the Chairperson consider having physical meetings due to network problems.

The meeting was adjourned.