For the past three weeks reports on the #GuptaLeaks have traced an intricate web between the Gupta family, its businesses and business associates such as President Jacob Zuma’s son Duduzane, to various politicians and more than a handful of officials at the heart of tenders and procurement, particularly at state-owned entities whose boards, according to the leaked emails, appear to have been stacked with pliant members on more than a few occasions.

State capture and #GuptaLeaks have featured repeatedly in Parliament over this time, including during Deputy President Cyril Ramaphosa’s recent question time in the House.

And while the former public protector’s State of Capture report and its proposed commission of inquiry have been taken on review to court by Zuma, and the ministers of mineral resources and co-operative government, Public Protector Advocate Busisiwe Mkhwebane late last Wednesday announced a “preliminary investigation” into the state capture claims, particularly at power utility Eskom, Transnet and the Passenger Rail Authority of South Africa (Prasa).

Against this background, on Monday Parliament’s House Chairperson for Committees, Cedric Frolick, announced in an official media statement that in light of these claims, the committees of home affairs, public enterprises, mineral resources and transport have been “directed” to “urgently” deal with state capture claims and to “ensure immediate engagement with the concerned ministers to ensure that Parliament gets to the bottom of the allegations”.

No specific deadline was set, but the statement said: “The committees have been urged to begin with the work and report their recommendations to the House urgently.”

The announcement came as the Chief Whips’ Forum, a consultative party political structure, was still discussing a broader single ad hoc committee to investigate the state capture claims, with another discussion scheduled for its meeting on Wednesday.

The DA, which had proposed a motion in the House for such a broader state capture ad hoc committee, on Tuesday said it was “angered” by Frolick’s announcement.

“This half-baked ‘probe’ has been introduced by the ANC in bad faith and without any effort to gain multiparty agreement,” said DA Deputy Chief Whip Mike Waters in a statement.

EFF Chief Whip Floyd Shivambu told Daily Maverick: “Parliament must co-ordinate its processes properly. Frolick is jumping the gun.”

United Democratic Movement (UDM) Chief Whip Nqabayomzi Kwankwa said Parliament “cannot work in silos” and discussions on the best options needed to be concluded. IFP Chief Whip Narend Singh said that while discussions were still under way the big question was whether committees would receive the necessary resources. Freedom Front Plus leader Pieter Groenewald indicated that while individual committees have their own focus for investigations, it was key that they were able to do a “proper investigation” with all the relevant persons involved. The ANC chief whip could not be reached for comment.

Some of the tricky dynamics around committees investigating state capture played themselves out at Tuesday’s home affairs committee. It was supposed to have been briefed on how members of the Gupta family became naturalised citizens following a decision by then home affairs minister Malusi Gigaba, whose letter to this effect is on public record. But MPs were stood up by Home Affairs Director-General Mkuseli Apleni because of a diary clash with a National Council of Provinces (NCOP) committee and NCOP home affairs budget vote debate.

MPs across the political spectrum were angered, particularly as they had received SMSes from the committee support staff to be on time as the DG had little time. But discussions nevertheless canvassed the need to officially confirm the veracity from Gigaba – the minister did so in a public media statement on 13 June – and also for the committee to receive ahead of time any other supporting documentation with regards to the naturalisation of several members of the Gupta family.

There was nothing to do but to postpone the briefing to next week, the last before Parliament rises for a month-long recess in July. It would be an invitation until those invited did not honour it and it then would become a summons, committee chairperson Lemias Mashile later told journalists.

But in parliamentary politics it’s never quite that straightforward, even if home affairs committee MPs likened Frolick’s direction to “almost an order”, according to one ANC MP, with fellow ANC MP Maesela Kekana adding: “It’s no longer our matter, it’s a Parliament matter.”

Mashile had raised the issue of the pending EFF court case over Gigaba’s action and asked for a legal opinion on the sub judice and its impact on committee deliberations.

The response by one of the parliamentary legal advisers was that while the Supreme Court of Appeal (SCA) has ruled against the sub judice rule as meaning nothing before court could be discussed, the National Assembly has its own rules, which are binding on the committee. And reference was made to Frolick’s statement saying the four committees must do their work “within the parameters of the (National) Assembly rules governing the business of committees and consistent with the constitutionally enshrined oversight function of Parliament”.

Rule 89 states, “No member (of Parliament) may reflect upon the merits of any matter on which a judicial decision in a court of law is pending.” And herein lies the rub: Rule 89 may well play a key role in any state capture parliamentary discussion, at least in the home affairs committee.

Tuesday’s legal advice to that committee stands in contrast to the legal advice provided to the public enterprises committee in late May, which also canvassed the SCA judgment, but emphasised as overriding Parliament’s constitutional responsibility of oversight. Section 55(2)(b) of the Constitution states the National Assembly must provide for mechanisms “to maintain oversight of the exercise of national executive authority, including the implementation of legislation and any organ of state”.

When the then still Eskom board chairperson Ben Ngubane on 23 May told MPs the controversy over Brian Molefe’s return as chief executive of the power utility could not be discussed because the matter was before the courts – the DA had brought a review application of this move – MPs used this advice from another of Parliament’s legal advisers to insist on their right to scrutinise the matter.

It turned out to be a harsh session for Ngubane. It also was tough for Public Enterprise Minister Lynne Brown, who had to admit to MPs that until a week earlier she had been left under the impression Molefe had resigned from Eskom when he announced in November 2016, days after the public protector’s State of Capture report had linked him to the Gupta family through a series of phone calls at a time when the controversial Tegeta coal deals was negotiated.

On Wednesday the public enterprises committee is expected to decide how to proceed with an inquiry into the state of affairs at Eskom, the Gupta family and state capture. It is unclear at this stage how the mineral resources and transport committees have decided to pursue Frolick’s direction.

But alongside the focus on Parliament’s handling of state capture claims, the national legislature also finds itself in the spotlight over Mkhwebane’s controversial remedial action on a constitutional amendment to change the role of the South African Reserve Bank (SARB).

In the report on an apartheid-era government loan given to Absa to acquire Bankorp, Mkhwebane states the justice committee chairperson “must initiate a process that will result in the amendment of section 224 of the Constitution, in pursuit of improving socio-economic conditions of the citizens of the Republic…”

Mkhwebane goes on to stipulate exactly what the amendment must say.

But Parliament, the legislative sphere of state, doesn’t get told how to do its business – not even by the courts. In cases when courts have found against Parliament, as the Western Cape High Court in late 2013 ruled there was “a lacuna” in the rules on motions of no confidence, it was always left to Parliament to bring its own House in order. Section 57 of the Constitution states that Parliament makes its own internal arrangements and determines its own procedures and proceedings.

Mkhwebane’s remedial action of a constitutional amendment has been widely and sharply criticised, and SARB on Tuesday confirmed it would take it to court on review. “(SARB) has been advised that the remedial action prescribed by the public protector falls outside her powers and is unlawful. The Reserve Bank has been advised to bring urgent review proceedings to have the remedial action set aside. The Reserve Bank has resolved to do so,” it said in a statement.

While the Bank’s focus may well be on its role “to protect the value of the currency and the well understood role that central banks play in securing price stability”, according to its statement, the public protector’s remedial action raises other questions with regards to the constitutional amendment now required from Parliament. While the remedial action talks of a motion by the justice committee chairperson, it also invokes sections of the Constitution dealing with draft laws for constitutional amendments, that require at least two-thirds support in the House.

Although Daily Maverick did not receive a response to a request for comment on this remedial action from Parliament’s spokesperson Moloto Mothapo, a general media statement was issued late on Tuesday. Acknowledging receipt of the report, Mothapo said: “Parliament will consider the report through its usual internal processes and determine an appropriate course of action.”

It remains to be seen how this will unfold – as with the probe into state capture claims by four different committees. But the pressure is on. DM

Photo: House Chairperson of the National Assembly, Hon Cedric Frolick. (Photo by RSA Parliament)