Parliamentary Reporter's Notebook

As one State Capture inquiry ends, two others start – but what to do about the dodgers?

By Marianne Merten 26 April 2018

As one parliamentary State Capture inquiry is winding down, two others are set to finally get under way – some 10 months after the initial directive from the institution to interrogate the #GuptaLeaks and report back to the House. But that’s how it unfolds sometimes in a crammed parliamentary calendar where determination to see something through can mean the difference between it happening, or being stalled amid procedure, protocol and, undoubtedly, political considerations.

The public enterprise committee inquiry into State Capture at Eskom has ended, but untidily. And Parliament now has to decide whether to involve law enforcement agencies to issue a warrant of arrest for ex- SAA board chairperson Dudu Myeni, also executive chairperson of the Jacob Zuma Foundation, after she snubbed a subpoena to appear before the inquiry.

Myeni’s subpoena was successfully delivered to her KwaZulu-Natal home earlier this month. It was not honoured after previous invitations were sidestepped. Myeni pleaded ill health twice, but failed to submit the requested doctor’s note. Instead she was spotted having late night dinner at a Pretoria restaurant.

MPs wanted Myeni to appear before them to answer, in particular about a 2015 meeting she called with Eskom board chairperson Zola Tsotsi at then president Jacob Zuma’s Durban official residence to discuss State-owned Entities (SoEs) governance.

It’s unprecedented that a subpoena had to be issued (only to be ignored) as those called before a committee honour that call unless there is a valid reason like ill health or, in the case of ministers, a diary clash. Parliament’s committees are empowered to inquire into any matter, and under the 2004 Privileges, Immunities and Powers of Parliament and Provincial Legislatures Act to issue such subpoenas. Parliamentary Rule 167 clearly gives a committee the power to “summons any person to appear before it to give evidence… or to produce documents”. Those called to appear before MPs must fully answer questions, but this testimony cannot be used in criminal investigations, unless it is for perjury, according to Rule 168.

Parliament also is considering re-issuing new subpoenas for the Gupta brothers and their business associate, former president Jacob Zuma’s son Duduzane, as these could not be successfully delivered at their last known addresses. It is understood they could be out of the country.

Neither the Guptas nor Zuma had complied with earlier invitations to appear before the inquiry that since late last year had been scathing about the state of play of political connectivity at the power utility. Instead lawyer’s letters were sent indicating their willingness in principle, but also raising questions around procedure and requesting full transcripts.

The proceedings are to a large extent an exercise in political show-boating by Parliamentarians intent either on making political speeches, insulting witnesses or otherwise questioning witnesses in a manner which is not conducive to the resolution of identified or identifiable issues,” said the Gupta’s lawyers in a letter dated 6 March 2018.

Inquiry chairperson, ANC MP Zukiswa Rantho, confirmed this matter was now with the office of National Assembly Speaker Baleka Mbete for a decision. Meanwhile, the process of drafting the Eskom State Capture inquiry report is under way.

In August, after MPs return mid-month from their two-month recess dubbed “extended constituency period”, that final report would go before the House for adopting. Already the State Capture commission of inquiry has been in contact with Parliament’s House Chairperson for Committees Cedric Frolick, Rantho confirmed.

It was Frolick’s directive to four committees in late June 2017 to probe #GuptaLeaks claims – including how SoEs facilitated to companies linked to the Gupta family and their associates like Duduzane Zuma, and instances of preferential treatment – that kick started the inquiry by the public enterprises committee. Since late last year this inquiry into Eskom State Capture has unearthed through documents and testimony a myriad of governance malfeasance, whether intentionally or by omission, political connectivity and how millions of rands were paid on dodgy contracts.

However, one of the other committees – transport – has invoked legislative pressures, and has yet to act on the institutional directive. The two others – home affairs and mineral resources, whose chairpersons are linked to the grouping that supported Zuma in the run-up to the ANC December 2017 national conference – announced movement this week on the institutional directive.

Until now the home affairs committee was satisfied to hear from the director-general how several members of the Gupta family received South African citizenship through ministerial discretion under the Immigration Act. The line held was that all’s above board. After a confusing foot-in-mouth media briefing by Home Affairs Minister Malusi Gigaba about that Gupta naturalisation, the minister later testified before the inquiry.

The mineral resources committee once in October 2017 called then mineral resources minister Mosebenzi Zwane only to be told of his surprise as State Capture was before the courts – at the time an application to review the public protector report was still undecided (it was rejected) – and that there were more important matters like service delivery.

The mineral resources decided not to look into the Vrede farm project, but focus on the role of the minister and department in facilitating the sale of Glencore coal mine to the Gupta-linked Tegeta – this was covered in much detail in the Eskom State Capture inquiry – to potential ministerial contraventions of the Executive Ethics Act and the appointment and/or dismissal of officials under undue influence.

Home affairs committee acting chairperson Donald Gumede said the first phase already underway would see MPs collect documents, also from the public, if available. If there was a need for a second phase, hearings would follow. The terms of reference were broad enough to also allow MPs to “look into foreign employees working within companies of the Gupta family to assess if they had received their work permits as per the prescripts of the law,” he added.

No firm dates have been given for the completion of such inquires by the home affairs committee, or a starting date by the mineral resources committee.

That four different committees responded differently to the same directive raises questions about the consistency and depth of parliamentary oversight. Institutional determination now faces a key test: what to do with those politically connected like Myeni, the Guptas and Duduzane Zuma who cocked a snook at Parliament? DM

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