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Eskom inquiry gets green light from top lawyer after scathing criticism from Lynne Brown

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Public Enterprises Minister Lynne Brown. Picture: Lindile Mbontsi
Public Enterprises Minister Lynne Brown. Picture: Lindile Mbontsi

The ongoing parliamentary inquiry into governance failures at Eskom has dismissed criticism of its work by Public Enterprises Minister Lynne Brown and her deputy Ben Martins and expressed complete confidence in Advocate Ntuthuzelo Vanara, who is the evidence leader in the inquiry.

The committee also received a boost from a renowned legal eagle, Wim Trengove, who affirmed its processes and their legal standing.

Brown, Martins and Black First Land First have all written to Parliament’s public enterprises committee raising various procedural questions regarding its inquiry into Eskom, with Brown’s latest salvo fired on Tuesday when she warned that if the committee is not even-handed, the inquiry may take the form of a kangaroo court.

The office of the state attorney had also raised concerns about Vanara’s “conduct” in the inquiry and threatened to report him to the general council of the bar.

Trengove, in legal advice read out by a Parliament legal adviser, dismissed all those concerns and indicated the committee was on the right track.

He began by making the point that accountability is one of the founding values of the Constitution, that the national executive is accountable to Parliament and that the National Assembly has both the power and the duty to hold the national executive to account.

He further stated that the tools available to portfolio committees in the performance of their oversight function are not systematically described in any one place but are scattered through the Constitution, the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act and the rules of the National Assembly.

“Rules 167(d) and (f) [of the National Assembly rules] confer a wide mandate on committees to conduct public hearings and to determine own working arrangements’ in doing so.”

Trengove wrote: “Portfolio committees thus have a wide and open-ended power to conduct public hearings in whatever way they deem appropriate, subject only to the following rules. A committee may summons witnesses to produce documents and give evidence relevant to its public inquiries.”

He however warned that 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.

“The committee will accordingly be well-advised, once it has prepared a provisional report, to ensure that all the people about whom it proposes to make adverse findings, have had an opportunity to address those accusations. If they have not, the committee should inform them of the accusations and invite them to return to address them,” he wrote.

“The committee may, of course, also wish to compel them to return to answer the accusations against them whether they wish to do so or not,” he added.

On the appointment of an evidence leader, Trengove said he was of the view that the committee is entirely at liberty to adopt a procedure of this kind, adding that it is well within its very broad mandate to regulate its own procedure.

“It makes eminent good sense to have someone who collects, organises and presents the evidence, subject of course to the committee’s direction at all times.”

Trengove also addressed Brown’s question with regard to Brian Molefe’s court case where she warned the committee to “be cautious in how it conducts the hearings in relation to this matter, so that it is not seen to be contravening the rules of the separation of powers between the legislature and the judiciary”.

He noted that Parliament and the judiciary are institutions of equal standing and neither trumps the other.

“There is no rule that says that Parliament may not enquire into and report on a matter merely because it also happens to be before the courts. Parliament and the judiciary perform different functions and may do so in parallel in relation to the same subject matter. The fact that a matter is pending for the one does not sterilise the other.”

Trengove concluded that the portfolio committee was consequently not in any way restricted in its inquiry into Molefe’s conduct, even if it overlaps with the issues before the court.

Brown’s concern that Vanara was conflicted as the evidence leader was dismissed. Both she and the BLF had argued that Vanara – as “a member” of Parliament’s ethics committee which is investigating her role in a matter involving consulting company Trillian – was conflicted.

Vanara is acting registrar of the ethics committee. “Advocate Vanara is not conflicted at all as he is not a decision-maker in the inquiry into the conduct of the SOEs.”

Brown and the BLF had also raised the question of possible conflicts of interests of members of the committee such as the former finance minister Pravin Gordhan, but Trengove didn’t think there would be any such conflict as 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.”

MPs across the party spectrum had strong words especially for the state attorney, saying his letter had shown a lack of understanding of the Constitution and the law.

The state attorney had registered unhappiness with the manner and style that Vanara led evidence, saying it should assist all parties and not just the committee.

The inquiry will resume next Tuesday.

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