Way forward on State Capture allegations in Organs of State involving Minister of Mineral Resources

Mineral Resources

23 August 2017

Chairperson: Mr S Luzipho (ANC) 

Way forward on State Capture allegations in Organs of State involving Minister of Mineral Resources 2
Way forward on State Capture allegations in Organs of State involving Minister of Mineral Resources 1

Public Protector State of Capture Report

Meeting Summary

The meeting became a lengthy discussion on whether the Committee should call the Minister of Mineral Resources to its meeting to account for allegations of state capture involving his Department. The House Chairperson’s directive had been clear on the need to first call the Minister to account, and that the Committee should then seek legal advice on the way forward.

While this approach was supported by the ANC, the DA Members argued that the Minister should not be summoned until the proper processes had been put in place, and the Committee had received advice from the Parliamentary Legal Advisor. The ANC opposed delaying the process, saying the DA would make political capital in the media with false allegations that the Committee was failing to deal with the matter. After robust discussion, the ANC majority in the Committee voted to allow the Minister to come to the meeting and account.

There was a ten-minute interval, during which a request was made for the Minister to come to the meeting, but he was unable to attend due to being tied up in a Cabinet meeting. After further discussion, the Parliamentary Legal Advisor was allowed to advise the Committee on the way forward, and she supported the directive of the House Chairperson to call the Minister to account.

The Chairperson decided that the next step would be for the Committee to communicate with the Minister to find a suitable date for him to attend a meeting on the allegations. 

Meeting report

The Chairperson said that the meeting was quite critical in dealing with the issue of state capture that the Committee had dealt with last week, following the letter received from the House Chairperson, Mr Cedric Frolick. The main agenda was to consider the way forward in relation to that letter. He said disagreements were allowed in the discussion, but in the final analysis there could not be any disagreement about the way forward. He asked if the Committee Members agreed, and called for the adoption of the agenda.

Mr Z Mandela (ANC) proposed the adoption.

Mr M Matlala (ANC) seconded the proposal, and appealed to the Chairperson not to behave like a *head boy.”

The Chairperson responded that he heard Mr Matlala’s viewpoint.

House Chairperson’s directive

The Chairperson said the first issue related to the letter he had written to the House Chairperson. In essence, it had sought guidance on how the Committee should deal with the allegations of state capture by organs of state and the method in which the Committee should hold Executive members accountable. The letter had also requested a legal opinion on the issue.

Following the Committee meeting, he had sought legal opinion from Parliament so that the proceedings were within the legal framework that guided them. He had subsequently had a meeting with the House Chairperson, and explained his expectations. The House Chairperson had made a commitment that he would suggest in writing what the Committee needed to do.

He read the response letter from the House Chairperson. The letter was not circulated to the general public attending the meeting. In essence, it included the power of Parliament to exercise oversight over the Executive and keep it accountable, and confirmed that the relevant Committee may clarify issues under contestation. The relevant member of the Executive must be given a fair platform to respond and clarify allegations. This should be the point of departure before the Committee determined its next course of actions.

After explaining the letter, the Chairperson said that the process to follow was to invite the Minister of Mineral Resources. He had spoken to the Minister, and he had agreed to appear before the Committee. He added that the Minister had to be available at every opportunity.

Mr J Lorimer (DA) asked if this was the same way other Committees were dealing with the issue – to ask the relevant Minister to come and speak to them before structuring their investigation.

The Chairperson confirmed that other Committees dealt with the issue in the same way, and this had been confirmed by the House Chairperson in the letter. He gave examples of different committees inviting their relevant Ministers. There was a difference between what a Parliamentary Committee and an ad hoc committee did. The starting point of a Committee of Parliament was to call the Member of Parliament and thereafter deal with the issue of how to take the process forward. It was to give the Minister the courtesy of an opportunity to account, and for it not to seem as though issues were being discussed behind the Minister’s back.

Mr Mandela supported the two motions -- for legal advice and for the Minister to be called to the meeting. He suggested that the Minister should be called first, and then the Committee should seek legal advice on the way forward.

Adv H Schmidt (DA) asked if the Parliamentary Legal Advisor was ready to present on the matter before the Committee took a final decision.

The Chairperson said that the legal advisor was present, but added that the Committee had been given a directive on how to deal with the matter. It was more strategic to deal with the first hurdle and then approach the legal advisor for an opinion. The legal opinion could be accepted or rejected, but the Committee should follow the directive of the House Chairperson to call the Minister.  

Mr Mandela emphasized the directive from the House Chairperson, and moved that the Committee should call the Minister.

Adv Schmidt said that there was no harm in considering the legal advisor’s opinion.

Mr Lorimer asked what scope of action the Committee was looking at. If the Minister came, was the Committee allowed to ask questions about every part of the enquiry? Would boundaries need to be set now? The Committee needed to investigate if there was an improper relationship between the Minister and the Gupta family. The questions may go further than just mining questions and involve issues about the Minister’s political life before he became the Minister of Mineral Resources.

The Chairperson emphasised the directive in the letter from the House Chairperson. Any Member of Parliament being asked a question may decline to answer, based on the question’s relevance. Determining the scope and process could be done only once the Minister had been called.

Adv Schmidt asked if the legal opinion was available to the Members of the Committee. He wanted to know the opinion before taking decisions. The opinion could only enrich the Committee’s discussion. If the opinion was available, he asked if it could be made in writing.

The Chairperson said that the Committee Members should make suggestions.

Adv Schmidt stressed that he felt that the legal advisor should give her opinion to the Committee.

Mr Mandela said the legal advisor was to assist the Committee on how to handle the matter, and the letter from the House Chairperson had stated that the Committee should engage with the Minister. He commented that some of the Committee Members were unfairly making utterances in the media that the Committee was avoiding doing its work. The Committee wanted to do the work, and he therefore moved that the Committee should call the Minister and attend to the issues.

Mr Matlala emphasised that they needed to call the Minister before hearing the input of the legal advisor. The Committee could not have the legal opinion before hearing from the Minister. He asked for a ten-minute break.

The Chairperson said that the legal advisor had been called in case the Committee did not receive a response from the House Chairperson on the directive, when the Committee was in session. The risk of taking a legal opinion would be that instead of the Committee doing the work, the Committee would become a vehicle that survived on being constantly advised. He suggested that the legal advisor stay with the benefit of what the Minister engaged with. The legal advisor could then work out her advice after the engagement with the Minister. He said that there was a mover and seconder for the motion.

Adv Schmidt wanted clarification on whether the Committee wanted to call the Minister to the meeting. He argued that the matter was being rushed, without the issue being properly placed on the agenda. There had been no indication that the Minister was going to be called for the meeting. Secondly, what would the procedure for the investigation be? He wanted guidance on what the process should be for calling the Minister to the meeting.

The Chairperson replied that the letter from the House Chairperson specified that the Committee had a duty to call the Minister. He emphasized that there were no restrictions on Committee Members’ questions, but the person being asked could choose not to answer. The issues of whether or not to call the Minister, and when the Minister should be called, were separate issues. He read the letter again and explained that once the Committee had collected the work, the legal advisor could then advise on the approach.

Mr Mandela said that the Committee had already moved and seconded the motions. He did not understand why there was still a discussion around the matter of calling the Minister.

Mr Lorimer objected strongly, saying that if the Minister were called to the meeting, the Committee would be making a mockery of the proceedings.

The Chairperson asked if there was a seconder to the comment of Mr Lorimer.

Adv Schmidt seconded.

Ms M Mafolo (ANC) referred to the opening remarks of the Chairperson, which had indicated that the Minister was ready to appear before the Committee. If the Minister was ready, then he should be called so that the Committee was not accused of delaying the process of state capture.

The Chairperson took a vote of those in favour and those against the calling of the Minister.

The Committee Members voted. There were five ANC Members for the motion, and two DA Members against.

The Chairperson declared the outcome of the vote.

There was a ten-minute break in order to call the Minister to the meeting.  

Minister unavailable

The Chairperson said that he had called the Minister, but the Minister was tied up with issues of the Cabinet and could not attend the Committee meeting. He had said he was willing to liaise with the Committee so long as it did not cause conflict with his other engagements. The Committee would have to go back to the House Chairperson. The Committee work had to continue, and the Committee would need to look for alterative days outside of its daily Committee work to handle the matter.

He thought that the Committee could persuade the Department to present on the mining charter, as there were developments taking place and as a Committee they needed to understand these developments. Currently more than 10 000 mine workers were under the threat of losing their jobs. The list of issues that required the attention of the Committee was endless. They could not use the following Tuesday and Wednesday, as there would be an International Women’s Conference. He spoke about Parliament’s busy schedule and further emphasized the point that the Minister would need to come account before the Committee.

Mr Mandela said he hoped that the willingness of the Committee to deal with matter of the state capture with relation to the Minister of Mineral Resources had been captured. It was disturbing that the Committee would come out of meetings and come across headlines that stated: “DA accuses Mineral Resource Committee of delaying state capture probe”. This undermined the work of the Committee. He addressed the statements made by Mr Lorimer in the media about the Committee. He wanted to make it clear that the Committee took its work very seriously and did not want to be undermined by Members of the Committee outside of its meetings.

The Chairperson stated that Mr Lorimer’s statements had been the view of the Democratic Alliance, and he had decided deliberately not to respond to them. He did not take offence at the allegations against the Committee, as the results would prove what the Committee had done.  

Adv Schmidt commented that he had never seen a process where there was no indication of what the procedure would be once an individual was called to give an account of fulfilling his duty as a Minister. There should be at least some form of indication on how that process was going to be dealt with. Normally in an investigation, there were notes on the terms of reference, there were witnesses to be called, and issues to be dealt with in advance. There was no indication of what to do with the matter. He commented that the Chairperson may not want rules or want the Committee to investigate. There could not be a meeting where an agenda was changed on the morning as the Committee spoke. He asked if the proceedings would be recorded. These serious allegations were being rushed without having any regard for procedure or natural justice.

The Chairperson read the letter from the House Chairperson again. He commented that it was fine for views to be expressed at the meeting, and said that he would go to the substantive paragraphs of the letter. In essence, Parliament was empowered to exercise oversight over the Executive and the relevant Committee may clarify issues under contestation. The relevant member of the Executive must be given a fair platform to respond and clarify allegations. This should be the point of departure before the Committee determined its next course of action. The Committee must perform its functions in terms of Rule 167 of the National Assembly, which could be exercised after calling the Minister. He thought the process was simply holding Executive members to account about anything in the public domain relating to their executive execution. He explained the process that should happen after the engagement of the Minister accounting for his actions.

Mr Lorimer said he would put aside Mr Mandela’s accusations, and asked if the Committee would be allowed to question the Minister when he came.

The Chairperson said that that was the Committee’s duty. He asked for the copies of the letter from the House Chairperson to be produced to the Committee Members

Mr Lorimer replied that that would be useful.

Adv Schmidt said that his issue was not with the normal procedure of oversight, but with a different form of oversight. He explained that this was an investigation. He asked if there was an evidence leader. If the investigation was so transparent, why did the Chairperson not want to accept the copies of the e-mails Mr Lorimer had produced at the last meeting? How did the Chairperson intend to lay evidence before the Committee to interrogate and investigate in relation to state capturing? He argued that this was not normal oversight.  

The Chairperson responded that Adv Schmidt now had a different argument. He would be explaining for the last time. The House Chairperson had given the Committee authority, stating that Parliament was bound to exercise oversight in all circumstances over the Executive and to keep it accountable for Executive action. The House had been given the directive to exercise the oversight responsibility as a Committee. The legal advisor had been invited to the meeting just in case the Committee had not received a response from the House Chairperson before the meeting. They had a duty as a Committee to take independent decisions. After having dealt with the issues, the Committee could then ask for legal advice. He proceeded to give the opportunity to the legal advisor to address the matter.

Ms Sueanne Isaac, Parliamentary Legal Advisor, said that the House Chairperson had given the Committee a directive on how to embark on its enquiry. She emphasised that the Committee must get its mandate from the Constitution and the rules. Rules 237(b) and 237(c) set the function of a Portfolio Committee. The process may seem different, but it still fell under the oversight mandate. Once the preliminary issues were decided, the Committee could decide how it would to put into effect the investigative role.

Adv Schmidt said that if they had heard the opinion of the legal advisor, there would not have been a lengthy discussion during the meeting.

The Chairperson commented that Adv Schmidt had just wanted to hear it from the legal advisor. Both he and the legal advisor had come to the same conclusion. There was now clarity. The Committee needed to communicate with the Minister, and the Minister would agree on a set time. The Committee also needed to communicate with the House Chairperson.

Committee minutes

The Chairperson went through each page of the minutes of 14 June 2017.

Mr Matlala moved their adoption, Ms V Nyambi (ANC) seconded, and they were adopted.

When the Chairperson went through each page of the minutes of 16 August ,Mr Lorimer interrupted and asked if the documents in section 5 of the resolutions had been forthcoming.

The Chairperson said that there were no documents, so Mr Lorimer asked for a follow up request for them, which was accepted.

Mr Mandela moved the adoption, Mr I Pikinini (ANC) seconded, and the minutes were adopted.

The Chairperson reminded the Committee Members about the joint Committee meeting with the police on illegal mining, scheduled for Friday. 

The meeting was adjourned.