To be fair, Letsatsi-Duba admitted to Justice Raymond Zondo that in hindsight, the committee she chaired between May 2014 and March 2017 had “failed to exercise our oversight”.
But she also had difficulty explaining why she had not supported calls by the opposition to hold an inquiry into the Gupta family and their influence on Eskom during her tenure, even though she and the ANC majority in the committee were aware of the allegations and credible media reports of rampant corruption at state-owned enterprises (SOEs).
Letsatsi-Duba was appearing in an evening session as part of the commission’s probe into the failures of parliamentary oversight, and how it aided and abetted State Capture. The theme of oversight failure has been running for the past few weeks.
Evidence leader Advocate Alec Freund’s line of questioning started with the governing party’s “study groups” – preceding portfolio committee meetings – and how it could be deemed inappropriate to caucus via the groups, which would include ministers and directors-general, who would then have to be held to account in the portfolio committee meetings.
“At first I was a little uncomfortable with the approach, as it might appear we were trying to caucus before the committee meetings, but that has been the practice all along,” said Letsatsi-Dube, also the former State Security minister.
She agreed with Freund that the practice was “inappropriate”, saying it would place the ANC at an “advantage over other political parties”. One of the purposes of the study groups was to “interrogate party deployees, to get facts”, she added.
“To me, personally, I don’t think that ANC study groups are necessary.”
Freund said that from previous testimony given at the commission, his impression of the study groups was that they were used to make decisions on what approaches would be adopted in portfolio committee meetings.
“I agree,” offered Letsatsi-Duba.
Zondo asked: “Is it your understanding that within the ANC, the general understanding is that you have to act in accordance with decisions taken in the study group?”
“Would they act in accordance?” asked the chair.
“Were there times that the ANC members deviated from those study group decisions when in portfolio committee meetings?”
“There would not have been such,” said the former minister.
She told Freund that the oversight tools necessary for the committee were insufficient and, as a result, it had to rely on annual reports for information.
Using Eskom as an example, she said the committee was refused the utility’s “shareholder compact” because it contained commercially sensitive corporate information that could end up in the hands of “the competition”.
Eskom told the committee that it was governed by the Companies Act, “which precluded such disclosure”, according to Letsatsi-Duba.
“Do you accept that the portfolio committee has a constitutional right and obligation and also under the rules of the National Assembly to summons persons to answer questions and to require them to answer under oath?” asked Freund, to which Letsatsi-Duba answered in the affirmative.
“So there would be nothing to prevent your portfolio committee from requiring an entity like Eskom to furnish whatever information you thought was necessary in order to execute proper oversight?”
“I agree,” answered Letsatsi-Duba. “But remember when we were requesting Eskom’s plan, we were told flat they can’t give it to us because of the Companies Act.”
Freund responded: “I am grappling with you about what should be the appropriate response of your committee when you are confronted by them saying what they did. What competitors does Eskom have? I thought it was a statutory monopoly?”
“Yes, it is a monopoly.”
“Their excuse to the committee carries no water,” said Freund.
“It carries no water,” repeated Letsatsi-Duba. “Eskom is a pure monopoly company.”
“So we agree that their excuse was unacceptable?” asked Freund.
“It was unacceptable.”
He said the committee had the power to compel the power utility to produce the information it needed.
“Yes, we had the power, but I don’t know if you are familiar with how the portfolio committees are run. Time is very limited. In the next meeting, when we are able to follow up on the issue, we have another entity [that we have to deal with]. By the time we come back to Eskom, we are almost towards the end of the year.”
Letsatsi-Duba said there were “so many matters to deal with”.
“In my thinking, we need a small team as part of the committee which will be able to assist with the research and also to follow up on issues which were raised in the committee.”
Unfortunately, the parliamentary legal services brought in all the other issues to say we needed a House resolution, that public enterprises has no authority, and so on and so on. And, my initial thought was to say this is not a small matter to deal with, we need to get legal advice, not on the merits of the case, but on the processes, to say if we call the Guptas, what are the processes to follow. We don’t have capacity in terms of legal and all other requirements to deal with the issues in a proper manner.
Freund asked if this was “really the reason” the committee didn’t effectively perform oversight.
“I think so, I really think so,” answered Letsatsi-Duba. “If we were effective in our oversight with properly trained personnel – legal, administrative and technical – we wouldn’t be sitting in the situation we are in right now in relation to Eskom challenges, and challenges at South African Airways.”
Freund moved on to letters from DA MP Natasha Mazzone, a member of the committee at the time, written to Letsatsi-Duba in 2016, in which she requested that the committee conduct an inquiry into the alleged capture of some SOEs by the Gupta family.
The correspondence was mentioned in Letsatsi-Duba’s affidavit to the commission.
Mazzone also proposed that the committee immediately summons the Gupta’s to appear in order to answer the allegations. She said that former public enterprise ministers Barbara Hogan and Malusi Gigaba should also be called to give evidence on the same.
Letsatsi-Duba refused Mazzone’s request on the basis of “legal advice” she had obtained that said such could only take place with a House resolution.
The committee, in fact, had the powers to undertake such an investigation.
“What do you say about this now with the benefit of hindsight?” asked Freund
“Unfortunately, the parliamentary legal services brought in all the other issues to say we needed a House resolution, that public enterprises has no authority, and so on and so on. And, my initial thought was to say this is not a small matter to deal with, we need to get legal advice, not on the merits of the case, but on the processes, to say if we call the Guptas, what are the processes to follow. We don’t have capacity in terms of legal and all other requirements to deal with the issues in a proper manner,” replied Letsatsi-Duba.
She said the advice she got from the legal advisers was “not satisfactory to me”, but there was not much to be done because the matter took place just before the end of Parliament’s recess. “By the time you come back from recess and constituency work, other issues have come into play.”
She said she was “misunderstood” by the legal advisers. “Or maybe they did understand and decided to advise us in this manner.”
She said she actually agreed with Mazzone’s view that an inquiry was needed, and that the committee had the authority to do it, “but we needed processes”.
Zondo asked Letsatsi-Duba if she had not thought to inform the legal advisers that her understanding of the rules allowing for the inquiry was different to theirs.
“No chair, there I have to admit I didn’t. That’s what I should have done.”
At a committee meeting following Mazzone’s calls for an inquiry, she had tried to bring up the issue. In her affidavit to the commission, Mazzone said it was apparent that there was no “appetite” for such. Instead, some committee members said it was not on the agenda, and thought it was premature to make a decision on it.
Letsatsi-Duba said she couldn’t quite recall, but that Mazzone was “passionate about dealing with issues of corruption in SOEs”.
Later in 2016, the DA proposed a motion in the National Assembly for an ad hoc committee to investigate the allegations of State Capture.
“You voted no, as did the rest of the ANC caucus,” Freund told Letsatsi-Duba.
“The processes are so complex and difficult,” she responded “that if you are not ready to enter into the process of inquiry … I don’t remember what was the agreement, but if you say I voted no, it was not because I did not want the inquiry to happen, it might [have been] because of the processes and other issues.”
"Look for lessons about haunting when there are thousands of ghosts; when entire societies become haunted by terrible deeds that are systematically occurring and are simultaneously denied by every public organ of governance and communication." ~ Avery Gordon
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