Parliamentary Inquiry validity: legal opinion
15 November 2017
Chairperson: Ms L Mnganga-Gcabashe (ANC)
The Parliamentary Legal Advisor noted that the queries raised by Minister of Public Enterprises, Lynne Brown, in her 8 August and 13 October letters, about the Portfolio Committee's oversight inquiry. Before the Committee was a 19 October 2017 letter from the Office of the State Attorney in Pretoria addressed to the evidence leader. The title of the letter was: Concerns over your conduct of the parliamentary inquiry and failure on your part to respect our client’s procedural rights and the Constitution, hereby violating the Advocacy Ethics in the Conduct of Proceedings. The letter indicated that Adv Vanara needed to respond or they would report him to the General Council of the Bar of South Africa. Adv Vanara had responded to the letter. However, Parliament thought it prudent to seek the opinion of external counsel. The legal opinion from Adv Wim Trengrove, senior counsel, fully validated the Committee’s processes and procedures, including the role played by the evidence leader, Adv Vanara.
Committee Members were livid, expressing their support for Adv Vanara and pointing out the ignorance of both the Minister and the State Attorney about the Constitution and the Powers and Privileges Act that empowered the work that the Committee was doing. A Member of Parliament summed it up, "I guess the Executive is not used to this vehicle of Committees doing their work in an unwavering manner and also united..because we are dealing with corruption. It is not an ideological issue. It requires unity of all parliamentarians and not partisanship...If solid, clean government is not protected, it will never survive. Parties must be united in dealing with corruption. And, I think that the Executive is not used to that."
The Chairperson asked the Parliamentary Legal Advisor to take the Committee through the legal opinion.
Legal opinion by senior counsel: briefing by Parliamentary Legal Advisor
Ms Sueanne Isaac, Legal Advisor: The issue at hand is the two letters sent by Minister of Public Enterprises, Minister Brown. On 8 August and 13 October, she wrote to this Committee raising various procedural issues about the oversight inquiry. Those letters have been responded to. Subsequent to this, Adv Vanara received a letter from the Office of the State Attorney in Pretoria, and the letter is before Members. The title of the letter is: Concerns over your conduct of the parliamentary inquiry and failure on your part to respect our client’s procedural rights and the Constitution, hereby violating the Advocacy Ethics in the Conduct of Proceedings.
To summarise the points by the State Attorney on behalf of the Minister. They raise various issues about the procedure and process of the oversight enquiry. They indicate that they are unhappy with the manner and style in which evidence is being led and they are of the view that evidence must be led in a manner that assists all parties and not just the Portfolio Committee. The letter to Adv Vanara says that he needed to respond or they would report him to the General Council of the Bar of South Africa. I have spoken to Adv Vanara and he has indicated that he has responded to this letter. However, due to all these issues being raised by the Minister and all the procedural queries, Parliament thought it prudent to seek the opinion of external counsel so we briefed Adv Wim Trengrove to provide an opinion. We asked him to address all the concerns raised by the Minister in her initial letters and also the issues raised against the evidence leader.
The legal opinion dated 9 November 2017 is before the Members and it is: The Opinion for the Portfolio Committee on Public Enterprises on the Inquiry into Eskom, Transnet and Denel.
I do not wish to go through the entire opinion because it sets out in quite some detail the legal issues and the law so I am merely going to highlight the salient points about the procedural challenges. If we start on page 1, Counsel sets out the entire framework about the Constitution and the powers of Parliament.
On page 3, he discusses the founding principles of accountability and the powers of the National Assembly to hold the Executive and the organs of state to account. That goes further on page 4.
If you get to page 6 paragraph 10, he refers to the powers and rules of the National Assembly stating that Portfolio Committees have a wide and open-ended power, including to subpoena. He discusses the founding principle of accountability and the powers of Parliament to hold the Executive and organs of state to account.
If we go to page 6, paragraph 10, here he discusses the powers and tools available to Portfolio Committees in conducting oversight. Specifically, he refers to Rule 167(d) and (f) of the National Assembly and he says that those rules confer a wide mandate on Committees to conduct public hearings and to determine its own working in doing so. Portfolio Committees have a wide and open-ended power to conduct public hearings in whatever way they deem appropriate, subject only to the rules, and he sets out the rules in detail which tells us what confines the Committee, the Powers and Privileges of Parliament Act, the powers of the Committee to subpoena.
So, if you go to paragraph 17, after setting out all the rules, it says: Subject to the aforegoing rules, a Portfolio Committee is at large to determine its own procedure in the conduct of a public inquiry. Section 57 (1) of the Constitution allows the National Assembly to determine and control its own internal procedures and to make rules to do so. Going onto page 8 and 9, Rule167(f) is in the nature of a default rule that allows a Portfolio Committee to “determine its own working arrangements” where no other rule provides otherwise. So that is an important point to note.
If you go further down to paragraph 19, you will see the administrative law rules. It says: A Committee that holds a public inquiry, merely to report to the National Assembly, in the performance of its oversight function, does not perform “administrative action” subject to the rules of administrative justice laid down by the Promotion of Administrative Justice Act of 2000. But such a Committee does exercise public power. It is obliged to do so in accordance with the fundamental principles of the rule of law. The most significant of those principles, is the requirement of rationality.
In paragraph 20, he says: A Portfolio Committee thus has a wide discretion to determine its own procedure and ultimately to compile its own report to the National Assembly. The only legal requirement is that it must do so within the bounds of rationality. This means that both its procedure and report must be rational. Rationality is a low threshold which requires only a minimum standard of procedural fairness and substantive reason.
He goes on further in paragraph 21, and this is important to note: The requirement of procedural rationality may vary from case to case. In the ordinary conduct of a public hearing, with a view to a report to the National Assembly, a Portfolio Committee will usually satisfy the requirement of fairness by observing the following rules:
Witnesses should be allowed to have their own legal assistance if they choose. I emphasise, however, that they are entitled to legal assistance and not legal representation.
The Committee had already determined that witnesses can have legal assistance.
Paragraph 21.2 The Committee should not, in its report to the National Assembly, make adverse findings against people without affording them an opportunity to address the evidence against them. He suggests that a provisional report be prepared and those who have been implicated, be allowed an opportunity to respond. So, I think that the Members will know that that point has also been agreed to that the report will be sent to those implicated and then they will be able to comment.
With regard to the evidence leader, Counsel says that there is some uncertainty as to whether a Committee is entitled to appoint an evidence leader. In his view, he believes that the Committee can adopt this process. He says that it is in its mandate to regulate its own procedure and he believes that it makes good sense to appoint someone to do so. So that addresses the issue of the evidence leader.
If you go further, the Minister raised specific questions in her letter and Counsel responds to each question.
Question 1: Mr Brian Molefe’s court case
So, briefly, the Minister raised the matter of Mr Molefe having an ongoing case that is now pending before court, and his response is that Parliament and the judiciary are institutions of equal standing. Neither trumps the other. There is no rule that says Parliament may not inquire and report on a matter merely because it happens to be before the courts. And he goes on to discuss that in more detail, but the bottom line is that Parliament has its own power to conduct an inquiry and that the matter is pending before court does not prevent us from carrying out our own mandate.
Question 2: The precedence of different investigations
The Minister noted that Special Investigating Unit investigation is happening simultaneously with this inquiry. Adv Trengrove says that this is not the concern of the Portfolio Committee. The investigation by the Special Investigating Unit (SIU) and the National Assembly both have their own powers and duties, neither should be in any way affected by the fact that the other is investigating the matter. Because there is an investigation, it does not relieve the Portfolio Committee mandate to exercise oversight.
Question 3: An investigation before the hearings
The Minister raised the issue: Will the Committee conduct an investigation prior to the hearings? If so, whether it will communicate the results of the investigation to witnesses before they give evidence. Counsel's view was that there was no such duty on the Committee to do so. It can determine its own processes.
Question 4: An evidence leader
The Minister asks whether the Committee proposes to appoint an evidence leader. This question has already been addressed that the Committee is entitled to appoint an evidence leader.
Question 5: Written input from witnesses and institutions
The Minister asks whether the Committee will seek written input from witnesses and institutions. In paragraph 32 of the opinion, Trengrove says the Committee has a free hand to do so. It can do whatever is sensible.
Question 6: An invitation to interested parties
The Minister asked if the Committee proposed to invite input from any interested parties or whether its hearings will be confined to witnesses that it identifies. Counsel response was that the Committee is again at large to do whatever it pleases. It would make good sense, however, to invite all interested parties to provide input if they wish to do so. They could, for instance, be invited in the first place to make their input in writing. The Committee could then decide whether to call them thereafter.
Question 7: The legal assistance of witnesses
This has already addressed.
Question 8: An interim report
The Minister asked about an interim report. Counsel said that the Committee need not follow this procedure of allowing the report to be sent to people but it is a useful way to ensure that everyone is given a chance to defend themselves. And as we said, the Committee had agreed to that.
Question 9: Is Advocate Vanara conflicted?
The Minister points out that is Adv Vanara is Registrar of the Ethics Committee “ceased with the issue of my executive role on the Trillian subject-matter” and asks whether he has a conflict of interest because of his role as Registrar and being a leader of evidence. Counsel says that Adv Vanara is not conflicted at all as he is not a decision-maker in the inquiry into the conduct of SOEs.
Question 10: Is the inquiry inquisitorial or accusatorial?
Counsel says that it is clearly inquisitorial and the evidence leader is acting on behalf of the Committee. He may tell witnesses the topics beforehand but there is not necessarily a need to do so.
Question 11: The Committee’s terms of reference
The Minister asked about the finalisation and having the terms of reference made public. Counsel says there is no need to formalise terms of reference. It was a practical issue and it was up to the Committee to determine if it even wants terms of reference or not.
Question 12: Is legal representation allowed?
This has been answered.
Question 13: The interface with other investigations
This has been answered. The Committee can proceed despite there being other investigations.
Question 14: Mr Brian Molefe’s court case
This has also been discussed.
Question 15: The Committee’s powers of subpoena
Counsel points out that the Committee enjoys wide powers of subpoena in terms of section 56 of the Constitution and sections 14 to 17 of the Powers and Privileges and Immunities of Parliament and Provincial Legislatures Act. They provide for the enforcement of the Committee’s subpoenaes.
Question 16: The authenticity of the emails in the public space
On the use of the emails that are in the public space, Counsel says that he assumes that the Minister has in mind the so-called “Gupta leak” emails. The Committee can certainly have regard to them. It is for the Committee to decide how much weight to attach to them. It should do so on a sensible basis. It is impossible to generalise about all the emails.
Question 17: Evidence that implicates witnesses
The Minister asks how the Committee proposes to deal with information that implicates her department and other witnesses. She asks what about “the fundamental right of not-implicating oneself”. Counsel’s response is that the evidence may well show that the Department, its officials or other people have been guilty of misconduct. The very purpose of the inquiry is to determine whether that was so. The only restriction is that everybody against whom the Committee proposes to make adverse findings must be given an opportunity to defend themselves. Under the Powers and Privileges Act, a witness is not entitled to refuse to answer a question merely because the answer might incriminate him or her. Such an incriminating answer may, however, not be used against the witness in subsequent proceedings. So basically that about the protection of witnesses and the right of the Committee to compel them to respond.
Question 18: Conflicts of interest of members of the Committee
Question 18 in paragraph 59, the Minister raised issues of conflict of interest with regard to certain Members of this Committee, specifically in respect of the former Minister of Finance, Mr Pravin Gordhan, and in paragraph 60, Counsel’s response is that the Committee does not perform a judicial or adjudicative function. Its function is merely to enquire into matters and report on them to the National Assembly. Its Members are consequently not subject to any requirement of independence or impartiality. He goes on to say that a Member should not sit in judgment of his or her own conduct. The mere fact, however, that a Member of the Committee has expressed strong views about, or has particular knowledge of, the matters under investigation, does not disqualify him or her. He says he is not aware of any reason for Mr Pravin Gordhan to withdraw from the inquiry.
These responses that Counsel gave are reflected in the letter that the Committee drafted in response to the Minister. Therefore what we have advised, and is in the letter, is on par with the advice that Counsel has provided.
Questions by Members
Chairperson: Thank you very much. I can see the hands already.
Ms Mazzone: I find this letter from the Office of the State Attorney infuriating. I think that their interpretation and understanding of the Constitution is both appalling and deeply concerning, or should I say their lack of understanding? Perhaps if the Office of the State Attorney spent as much time enquiring into state capture as it does in trying to intimidate MPs, it would be most helpful to South Africa. I think that it is important for us to put on record that the Executive of the Government of the Republic of South Africa is accountable to Parliament, and not the other way around. The South African State Attorney is also advised to make themselves au fait with the Powers and Privileges of Parliament Act because if they did, they would know what powers and privileges that we, as MPs, enjoy.
Chairperson, I would go so far as to say that when we look at this letter, it is a waste of public resources. The letter itself is not only poorly drafted, the grammar is appalling and the legalese is even worse. And, Chair, all I can say – I understand that the response has gone back, but I do wish that we as a Committee would also send to the State Law Advisor the motion of confidence in Adv Vanara that was passed this morning.
Dr Luyenge: I think where we are with the Office of the State Attorney letter in front of us, the responses given to the Minister are relevant, and everything is put into perspective and we have given clarity. When this letter came before us, we were of the view that we are doing our work under the auspices of the Constitution. The legal team was there and at no stage was there any doubt that what we are doing is conflicted by anything, even the role of Adv Vanara and the participation of Pravin Gordhan. I am sure that this is a matter that now must be put to rest because really, the response has spoken our mind out. It is very clear and no one must go around giving wrong information that what we are doing might be found wanting in terms of the law. No, it’s not like that. Any insinuation that what we are doing so is a grave mistake. The legal gurus will say what we are doing is in accordance with the response given to the Minister.
Mr Rawula: What we have been provided here is comprehensive in terms of the response. The responsibility of Parliament is, unfortunately, to hold the Executive and any use of state monies accountable. Parliament functions through oversight committees such as this Portfolio Committee as it is and this has been approved by Parliament, we are doing exactly that which we are expected to do. And, in fact, it raised eyebrows for the Minister not to understand that we are doing this within our rights. Also, it is a demonstration that you have a Committee that is not captured to corruption. This is a Committee that is not captured. It is able to do its work without any undue influence from the Executive or anyone. I think we must appreciate the reaction because the reaction means that we are making an impact to save South Africa.
And I think the Minister, what she is doing is basically the same "noise" we are receiving from some who will stampede to come here and give evidence, when we are having our own queue of witnesses to come. She must wait. She is going to be called at the right time to lead evidence. So, we can’t be intimidated on the accumulation of whatever from the links with Guptas. Now we are intimidated by her access to legal services, such as these. We have noted the Office of the State Attorney letter but, unfortunately, it is not going to deter us from doing our work. We are going to ensure that we are holding to account everyone that has pocketed from the state-owned enterprises, in particular, Eskom. So, the Minister must just relax. We are doing our work. Our terms of reference are protecting us. Everything that we are doing here, including the people that we call, are protected. I think that the response is very clear. No one is incriminated and we have not even arrived at any decision or resolution. We are just listening. If we are abusing our ears by listening to these witnesses, that is the job that we have to do. So, I think Chair, that we are on the right course to protect the purse. It is good that we have received an indication that there is some money, little as it might be, that is being paid back. It means that we are making the impact. We just want the money of the State back in its coffers. Thank you very much.
Mr Swart: I think Chair that the legal opinion by Advocate Trengrove, who is a silk, a senior advocate, endorses the approach that we have adopted from the word go and our in house legal advice. And so, I accept that there is no legal foundation for the letter from the Office of the State Attorney in Pretoria. It is now clearly set out in that legal opinion the approach that we have adopted and we need to reiterate, as we did this morning, our motion of confidence in our evidence leader. This Committee will not be intimidated at all; we will exercise our constitutional duty of oversight, but we will do that fairly, and in terms of the Constitution. And those implicated, as I have said continually, will be given the opportunity to respond. We will decide what weight to give to the evidence that has been led. I think that we are on a very sound basis to exercise our constitutional duty of inquiring into state capture and holding the Executive to account. So, I want to appreciate our legal advisors who have obtained this legal opinion, but it confirms the approach which we have adopted up to now.
Mr M Gungubele (ANC): I am covered by my colleagues but it is good that we have found time to formally respond to these questions, as lousy as they are. That is very important. We send the message that we listen to anyone, even if you are asking us common sense questions. Some of us have responded to these questions a long time ago. We also have a legal certificate for people to address these things. What is also very embarrassing is for the State Attorney not understanding this. The State Attorney is supposed to advise the Minister or the Executive on how to respond to these things in the manner required. Now, you can understand that even the Attorneys do not do their work. Now they are learning in a very harsh way. I think the State Attorney will take Trengrove’s advice and become a better State Attorney. Let’s hope that he will read from this. I want to praise your leadership, Chair, for ensuring that we respond formally. We must understand. I guess the Executive is not used to this vehicle of Committees doing their work in an unwavering manner and also united by the way, because we are dealing with corruption. It is not an ideological issue. It requires unity of all parliamentarians and not partisanship. If solid, clean government is not protected, it will never survive. Parties must be united in dealing with corruption. And, I think that the Executive is not used to that.
Mr R Tseli (ANC): What more can I say? I am covered.
Chairperson: Sueanne, would you like to say a final word?
Ms Isaacs: I have noted the Members’ comments and that it endorses our previous responses to the Minister. I think it will be appropriate for the Chairperson, on behalf of the Committee, to respond to the letter of the State Attorney to indicate that this is our view, that we endorse the process and we are confident in the soundness of this matter.
Chairperson: But the letter is addressed to our legal department in the name of Adv Vanara. Advocate, you may come in.
Adv Vanara: Thanks, Chair. When I received the letter, I immediately responded to it. I indicated that the allegations were without any merit and they were denied and that the allegations, as I view them, were rejected with the contempt that they deserved. I invited them to lay the complaint with the Bar. That was in respect of the allegations addressed to me but I did make a commitment to the State Attorney’s Office that, because I am an official of Parliament and I am not on a frolic of my own, that the letter would be forwarded to the institution for it to respond to them. So, in keeping with that promise, it is appropriate that we should, as a Committee, on behalf of this institution, address a response to this letter.
Chairperson: Members, that is a proposal.
Mr Swart: I am in total agreement. While I appreciate that this letter by the State Attorney was sent to Mr Vanara and on the instruction of the Department of Public Enterprises, basically he is a member that is assisting this Committee, who has been criticised in this letter unfairly and without any legal basis. As we did this morning, we all indicate our full support for Adv Vanara, our thanks for the evidence that he has led, and for the good job that he has done. It should be that we, as Parliament, should take a view and respond to this letter and say that we, as a Committee, appointed him to do this job and we obviously considered the legal implications, and there is no legal basis. In fact, it is an affront to Adv Vanara and it can be seen, to a certain extent, as an affront to this institution as well. We considered those issues when we appointed him. Who is the State Attorney to try and tell Parliament how we should conduct our business? That is what the legal opinion says and we are entitled to determine how we conduct our meetings. I do see it as an affront to this Parliament.
Ms Mazzone: I live in Pretoria. I am quite prepared to hand deliver it to the State Attorney on behalf of the Committee.
Chairperson: Mr Rawula, are you not covered?
Mr Rawula: No, I was going to say when I was reading the letter, it cast aspersions on his own profession as an advocate so it is good that Adv Vanara responded. I support that, as a Committee, we must also make our own response.
Mr Gungubele: I support the approach. However, officials must do it.
The Chairperson: The Committee has agreed that the Committee will respond to the letter. Thank you very much. I am informed that the programme will continue for the whole day on 21, 22, 23 November. From my side, I want to thank you for your cooperation with me as Acting Chairperson standing in for the Chairperson of the oversight inquiry, Ms Rantho. I appreciate it very much. Thank you to guests and the media for your cooperation.
The Committee earlier adopted its Public Enterprises Budget Review & Recommendations Report (BRRR).