Cape Town - Ben Martins, the Deputy Minister of Public Enterprises has issued a scathing statement that addresses many of the revelations from the #Statecapture inquiry.
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"We wish to emphasise the evidence leader’s failure to uphold the standard and principles of fairness in as far as the conduct of the Parliamentary Enquiry is concerned."
"In our considered view, the current Parliamentary Enquiry of the Portfolio Committee of Public Enterprises is an example of failure to uphold Promotion of Fair Administrative Justice and the Constitution."
Full statement Below
The Parliamentary Enquiry into the Department of Public Enterprise’s State Owned Companies started on the 17 October 2017.
Before the Parliamentary Enquiry started my colleague, i.e. Honourable Minister Lynne Brown, the Executive Authority of the Department of Public Enterprises (DPE) addressed 3 letters to Parliament.
One letter went to the Honourable Chairperson of the Portfolio Committee on Public Enterprises. The other letter went to the Speaker of Parliament and the third letter was addressed to the Evidence Leader of the Enquiry.
The first letter of 8 August 2017 addressed concerns regarding procedural issues in so far as the Enquiry is concerned.
The second letter of 13 October 2017 raised self-same procedural issues including but not limited to the evidence leader’s conflicted role. The third and final letter dated 19 October 2017 addressed procedural issues in particular the evidence leader’s failure to act ethically and professionally as expected of him in line with rules and ethics governing the advocacy profession.
EVIDENCE LEADER’S ROLE
We wish to emphasize the evidence leader’s failure to uphold the standard and principles of fairness in as far as the conduct of the Parliamentary Enquiry is concerned. This is so, as the Parliamentary Enquiry is subject to the Constitution of the Republic of South Africa, 1996 (the Constitution).
The Constitution upholds due process of the law. The Constitution upholds fair procedural administrative process and respect for individual fundamental rights as set out in Chapter 3 of the Constitution (the Bill of Rights).
The Parliamentary Enquiry failed to uphold the Constitution in this regard.The Parliamentary Enquiry has to be lawful, transparent, accountable, fair, regular and valid. These elementary requirements cannot be substituted for less.
This is so as the Parliamentary Enquiry is not permitted to allow others to be implicated without being heard including their version being put before the Enquiry. Such a version could be put and/or had to be put before the Parliamentary Enquiry by the Evidence Leader.
We put it on record that the Evidence Leader has failed the Parliamentary Enquiry process in this regard. To be precise, the Parliamentary Enquiry has permitted testimony implicating various persons without having advised those persons that they were going to be implicated.
There was a duty on the part of the evidence leader to advice such other persons about testimony which was going to implicate them. On this basis alone, the Parliamentary Enquiry has violated the human dignity of such persons.
No one can implicate his or herself. The right to be heard is a fundamental human right.
MS SUZANNE DANIEL’S UNTESTED TESTIMONY
An instance case is the testimony of Ms. Suzanne Daniels, i.e. Eskom’s suspended Acting Head of Legal who also served as Eskom’s Company Secretary.
Ms. Daniels herself being an admitted attorney and Officer of the Court should know about the repercussions of implicating other persons who are not able to respond to being implicated before the Parliamentary Enquiry.
Equally important is the evidence leader’s ethical duty to also uphold the fairness standards by concretizing the right of such implicated persons to be heard. For instance, informing such persons timeously including putting the versions of such implicated persons to witnesses before the Parliamentary Enquiry.
This is necessary and procedurally envisaged in line with legitimising the hearing without lowering the standards of fairness.In particular, Ms. Daniels testimony including the testimony of all other witnesses who testified before the Parliamentary Enquiry has never been tested. The truthfulness of such testimony falls short of satisfying the requirements of a valid, cogent and admissible evidence.
Clearly the evidence leader has failed to uphold the prime standard expected of a hearing of the nature of the Parliamentary Enquiry should have been done. This is so as those implicated are not able to rebut and/or controvert and/or deny and/or correct the one sided untested version(s) elicited by the evidence leader.
In our considered view, this amounts to an abuse of a Parliamentary Enquiry process which falls short of meeting the requirements of a fair process. On this basis, the Parliamentary Enquiry does not align and configurate with the Constitution.
A Classical Example of failure of the Parliamentary Enquiry Process to uphold the standards of fairness and a lawful just administrative hearing as envisaged by Promotion of Administrative Justice Act (PAJA) is demonstrated by failure to accord Deputy Minister Dikobe Ben Martins (Deputy Minister) an opportunity to controvert and/or answer to Ms. Daniels testimony including the evidence leader’s failure to elicit Deputy Minister Martins’ testimony.The following is a version the Deputy Minister would have presented had he been heard.
This is the self-same version the evidence leader should have put to the witness.From 7am until approximately 1:15pm the Deputy Minister was at the funeral service of Mr Ronnie Mamoepa at St Albans Cathedral in Pretoria. Whilst at the funeral the Deputy Minister took several photographs with other former Robben Island political prisoners and posted one of the photographs on his twitter handle.At approximately 1:30pm the Deputy Minister departed from St Albans Cathedral and drove to St Georges Hotel in Irene, where the ANC NEC Legkotla was to commence at 2pm.
Upon arrival at St Georges Hotel Conference Centre the Deputy Minister registered as a participant and was issued with an accreditation card.The Deputy Minister attended the Economic Transformation Commission which was chaired by Mr Enoch Godongwana.Ministers Rob Davies, Ebrahim Patel and Lindiwe Zulu among others made presentations at the commission.Throughout the duration of the commission from approximately 2:30pm until 7:30pm he sat next to the Chairperson of the ANC Parliamentary Caucus Mr Seiso Mohai.
When the Economic Transformation commission deliberations ended for the day, he went to the St Georges Hotel Conference Centre dining hall, where he sat at a dining table with Mr Paul Langa, Mr Vusi Mkhize and other members of the ANC logistics and security unit.Deputy Minister Martins departed from the dining hall at appropriately 08:30pm and went to his residence in Pretoria.
The Chairperson of the ANC Parliamentary Caucus Mr Seiso Mohai, Mr Paul Langa and other ANC members who were in attendance at the commission and the dinner can attest to the above.
From the aforegoing, we request that in the future, any hearings in particular, Parliamentary Portfolio Committee Hearings should not lower the standards of procedural fairness as envisaged by PAJA and the Constitution.
In our considered view, the current Parliamentary Enquiry of the Portfolio Committee of Public Enterprises is an example of failure to uphold Promotion of Fair Administrative Justice and the Constitution.