Executive, MPs clash and Gupta joins the fray
Publish date: 07 December 2017
Issue Number: 4365
Diary: Legalbrief Today
Category: State capture
The increasing friction between the executive and legislature over Parliament’s state capture inquiry was highlighted yesterday when Public Enterprises Deputy Minister Ben Martins, who had decided his presence before MPs wasn’t necessary, was subpoenaed to appear before the inquiry, notes Legalbrief. Yesterday’s state capture hearing also brought an irate response from Ajay Gupta, via letters from his lawyer, to allegations made during the inquiry the that were harmful to Gupta ‘and the country’. Like Martins, Gupta sought to dictate the terms on which he was prepared to make representations to the committee, and as with the Martins incident they were rejected. A sense of the stress and intimidation that members of the committee are faced with was also evident yesterday when the inquiry’s chair, Zukiswa Rantho, said she felt distracted by the presence of members of the Hawks in the meeting room and that they wanted all her details (see reports on these developments below). Later the inquiry was adjourned for the year. It will resume in mid-January.
The decision to subpoena the Minister was agreed by MPs across the board on the Public enterprises Committee. It followed receipt of a letter from Martins saying it was not necessary for him to appear before the committee and a written submission would suffice. A BusinessLIVE report notes Martins has objected vociferously about the fact that he has not so far been given an opportunity to rebut the allegations made by suspended Eskom head of legal and compliance Suzanne Daniels that Martins was present at a meeting in July with Ajay Gupta, Duduzane Zuma and Gupta associate Salim Essa. Martins has insisted he was at a funeral on that day and could not have been present at the meeting in Johannesburg. In his letter to committee chairperson Lungi Mnganga-Gcabashe, Martins said he had not had an opportunity to seek legal advice and to go through Daniels’ testimony. He said he was sending a written submission to respond to the allegations and that this was sufficient. ‘It cannot be assumed that a response can only be valid or legal if it is made in person … the written submission adequately addresses the issue I am required to attest to. As a result it is not necessary for me to appear before the committee,’ Martins wrote. MPs were outraged, notes the report. ANC MP Zukile Luyenge said Martins was undermining Parliament and should be subpoenaed. DA MP Natasha Mazzone agreed, saying the time for niceties was over and Martins had made an ‘unfortunate blunder’ in going up against a constitutionally mandated committee. ACDP MP Steve Swart said it was up to the committee to decide whether or not Martins should attend and the manner in which he should account to the committee.
Ajay Gupta supported Martins' denial and also issued a threat regarding the ‘malicious’ claim that he was at the meeting, notes Legalbrief. A second BusinessLIVE report says that in an unsigned letter from Goitseone Pilane Attorneys sent to the inquiry, Gupta has threatened to report the claims against Daniels – who made the allegation under oath – to the police and Speaker of Parliament Baleka Mbete. Criminal charges would be investigated against her. In November, Daniels told the committee Gupta was present at the meeting with Martins and others in Johannesburg on 29 July. She said matters related to former CEO Brian Molefe were allegedly discussed and the intention expressed was to contact the Deputy Judge President to ensure that Molefe’s court hearing was held after December 2017. The letter by Gupta’s lawyers was read out at the committee meeting yesterday, following the letter from Martins. Attached to the letter was a copy of a page of Gupta’s passport indicating that he was in India between 23 July and 31 July. Also attached was a screenshot from a YouTube video clip showing Gupta’s presence at a religious festival on 29 July. ‘The claims made by Suzanne Daniels are clearly false,’ the lawyer said, adding that they were harmful to Gupta ‘and the country’.
A second unsigned letter sent by Gani Mayet Attorneys on behalf of Gupta was also presented to the committee. It said he and the Gupta family had ‘been wrongfully implicated in wrongdoing directly or indirectly either individually or through family or business associations.’ The letter referred to Daniels’ testimony and re-iterated the contents of the first letter, adds the BusinessLIVE report. ‘Surprisingly, despite a lapse of nearly six months during which adverse but false evidence concerning his (Gupta’s) conduct has mounted before the inquiry no invitation has been forthcoming from the inquiry for the production of information to clarify or refute the allegations,’ read the letter from Goitseone Pilane Attorneys. It pointed out Gupta had not yet received an invitation by the committee to make a written submission to the inquiry, which did not suggest fair treatment and suggested that the motives of the inquiry were not fair and honest truth finding. The letter asked the committee to furnish Gupta and the Gupta family with a detailed list of questions within 10 working days of receipt of the letter so he could respond in writing. If Gupta or any member of his family were required to appear before the committee, they requested a detailed list of questions two weeks before the scheduled appearance. If the committee decided not to furnish a list of questions, then the lawyer’s letter asked it to inform Gupta about this and furnish reasons for its decision. ANC's Luyenge said the committee had already stated its intention to call the three Gupta brothers. ‘We want them to be here,’ he said, adding that they could not dictate to the committee how it would function. ACDP's Swart said it was not for Gupta or his lawyers to decide on what basis they would give evidence to the inquiry. There was no reason for the Guptas to be treated any differently from other witnesses.
The inquiry adjourned abruptly yesterday when Rantho said she felt distracted by the presence of members of the Hawks in the meeting room and that they wanted all her details. However, it turned out later, says a BusinessLIVE report, that the presence of the Hawks was innocent and had caused a false alarm as their unannounced attendance was meant to assist the committee. But, it notes, the incident did highlight the stress and sense of intimidation that members of the committee are working under. ‘I am not sure if I am able to continue with this,’ Rantho said, noting that the Hawks had everyone’s details so there was no reason for them to want hers. She could not understand why it was necessary for the Hawks to come to a parliamentary committee to obtain her details. Rantho’s family has already been intimidated because of the inquiry, the report points out. The ACDP's Swart said the intimidation was ‘outrageous’ and unacceptable. After the adjournment, committee chair Lungi Mnganga-Gcabashe took over the presiding of the inquiry. She told MPs that the member of the Hawks who came into the meeting had meant no harm. It was unfortunate that the committee had not been informed before his arrival that he would be attending the meeting.
The committee believes sufficient evidence has emerged from its inquiry to jolt Public Enterprises Minister Lynne Brown and the Eskom board into action ‘to stop any further abuse of state resources’. This is according to Rantho‚ who was speaking at the end of the proceedings of the inquiry for 2017, notes a TimesLIVE report. In her concluding remarks‚ Rantho said the evidence gathered so far by the inquiry over the past few weeks had raised serious allegations about the abuse of state resources at Eskom. ‘The committee is gaining a more complete picture of the troubled state of affairs at Eskom. This includes evidence of serious governance failures‚ clear abuse of state resources and the misconduct of senior officials in these matters. The committee is of the view that there is sufficient evidence to prompt actions to be taken by the Minister and the Eskom board to stop any further abuse of state resources‚’ Rantho said. Under questioning‚ Eskom acting chair Zethembe Khoza rated the management of the utility over the past two years at three out of 10. He gave the low rating under questioning by Inkatha Freedom Party Narend Singh. Before his appointment as acting chair‚ Khoza was an ordinary board member of the utility‚ he had been on the board since November 2014. He said his rating was based on the high turnover of chairpersons and CEOs at the utility. There have been six CEOs since May 2014‚ the majority of them in an acting capacity. Khoza said this turnover eroded the institutional memory of the company and prevented CEOs from executing a strategy.