COMMISSION OF INQUIRY INTO STATE CAPTURE HELD AT CITY OF JOHANNESBURG OLD COUNCIL CHAMBER 158 CIVIC BOULEVARD, BRAAMFONTEIN 29 APRIL 2021 DAY 385 22 Woodlands Drive Irene Woods, Centurion TEL: 012 941 0587 FAX: 086 742 7088 MOBILE: 066 513 1757 [email protected] CERTIFICATE OF VERACITY I, the undersigned, hereby certify that, in as far as it is audible, the aforegoing is a VERBATIM transcription from the soundtrack of proceedings, as was ordered to be transcribed by Gauteng Transcribers and which had been recorded by the client COMMISSION OF INQUIRY INTO STATE CAPTURE HELD AT CITY OF JOHANNESBURG OLD COUNCIL CHAMBER 158 CIVIC BOULEVARD, BRAAMFONTEIN DATE OF HEARING: 29 APRIL 2021 TRANSCRIBERS: B KLINE; Y KLIEM; V FAASEN; D STANIFORTH Page 2 of 288 29 APRIL 2021 – DAY 385 PROCEEDINGS RESUME ON 29 APRIL 2021 CHAIRPERSON: Good morning Mr Pretorius, good morning Mr President, good morning everybody. ADV PRETORIUS SC: Morning Chair. CHAIRPERSON: Thank you. Are you ready? ADV PRETORIUS SC: Chair Mr Freund will deal with the Parliamentary questions. CHAIRPERSON: Oversight. ADV PRETORIUS SC: And Parliamentary oversight for the 10 next two hours until the short adjournment. CHAIRPERSON: Okay no that is alright. ADV PRETORIUS SC: Thank you. CHAIRPERSON: That is alright. Mr President the oath you took yesterday will continue to apply today. Thank you. ADV FREUND SC: Good morning Mr President. Perhaps you could turn on your microphone. Thank you. CHAIRPERSON: Well I – I thought that maybe the President decided that this morning he will – today he will 20 keep his mask on. PRESIDENT RAMAPHOSA: No. I decided it is pretty safe in here. CHAIRPERSON: Ja okay. Yes Mr Freund. ADV FREUND SC: Thank you Chair. Mr President you should have open in front of you Bundle 1 of your material Page 3 of 288 29 APRIL 2021 – DAY 385 which is your affidavit. I am going to start at page 48. Chair page 48 of Bundle 1 which is the one that contains the actual affidavit. CHAIRPERSON: Using the black numbers again and not the red numbers. ADV FREUND SC: Yes it is black numbers top left. Mr President do you have at that page the section headed Role of the ANC in Parliament? Now Mr President Mr Pretorius and yourself debated yesterday the basic 10 approach adopted by this commission. What happened, why did it happen and what can be suggested that might prevent future similar difficulties? I am going to deal with those issues as well but I am going to be dealing with the question of whether it is so that Parliament failed to exercise due oversight over the executive in relation to the issues of concern to this commission, whether it failed to hold the executive properly accountable. But on that issue we have had a lot of evidence and 20 I am not going to re-traverse with you evidence that has already been heard. The second question of course is why did this happen and I will say at the outset that the picture is mixed on Parliamentary Oversight. There are some successes, there are arguably some failures and really the focus is not Page 4 of 288 29 APRIL 2021 – DAY 385 on the successes this focus is on the failures but it is appropriate to keep a balance to view on that. And in the questions I ask you – I am really going to be focussing on what explains the failures to the extent that there were failures? And then very briefly because again on the third the question of – of what can be recommended to improve things? That is an issue we have canvassed at some considerable detail already particularly in the evidence 10 recently of Mr Mantashe so I am not proposing to spend a great deal of time on that with you I will touch on a couple of issues. But the real focus then from my perspective is really if there were failures why did those failures take place? And in relation to that I want to start just reaching common cause and agreement with you on things I am sure we would agree about and in particular what are the applicable constitutional principles? What is the 20 appropriate relationship as between Parliament and the executive? Now you deal with that in your own affidavit and in particular if you have a look at paragraph 112 you will see that you summarise the duties of Parliament and at the footnote to 112.4 you refer to Section 42(3) of the Page 5 of 288 29 APRIL 2021 – DAY 385 Constitution and Mr President your own role in the formation of the constitution is well-known I presume we take it as read that you are reasonably familiar with the provisions of the constitution. So just to so that we all start from the same starting point Section 42(3) to which you refer says as you know this – it says: “The National Assembly is elected to represent the people and to ensure 10 government by the people it does this by and then various things but one of the ways it does it by is by scrutinising and overseeing executive action.” So we know that is part of Parliament’s functions and that is the function to which you expressly refer in your affidavit. But I am sure you will also be aware that there is another provision of considerable importance here and that is Section 55(2). 20 Section 55(2) I will read to you. “The National Assembly must provide for mechanisms a. To ensure and I would hyphenate – I would underline that word to ensure that all executive organs of state and the national Page 6 of 288 29 APRIL 2021 – DAY 385 sphere of government are accountable to it – to the National Assembly and b. To maintain oversight of 1. The exercise of national executive authority and 2. Any organ of state.” So in short there is an oversight constitutional obligation and there is a constitutional obligation resting on the National Assembly to ensure that the executive in all its 10 components is accountable to it. Now I presume there is no difference between you and I on those principles? CHAIRPERSON: Mr President when you agree with him or do not agree better that you articulate whether you agree so that it will be recorded. When you nod it is not recorded. PRESIDENT RAMAPHOSA: Okay. So my nod then not recorded? CHAIRPERSON: No. 20 PRESIDENT RAMAPHOSA: I agree. ADV FREUND SC: So the first point that flows from that I want to put for you – put to you to check that you agree with me is that the obligation to hold the executive account – to account to vest in the National Assembly it does not vest only in the ANC’s party’s structures. I see you nod. Page 7 of 288 29 APRIL 2021 – DAY 385 PRESIDENT RAMAPHOSA: Yes I agree. ADV FREUND SC: And secondly that the executive is accountable to the National Assembly and not merely not to the governing party. Again I presume you agree? PRESIDENT RAMAPHOSA: Yes I agree. ADV FREUND SC: Now can I take you to the – to the other bundle – Bundle 2 of your – of your material to page 564. You should find there a copy of a court judgment. Is that correct? 10 PRESIDENT RAMAPHOSA: Yes. ADV FREUND SC: Now Mr President that is the reported judgment of the Constitutional Court in what is commonly … CHAIRPERSON: What is the page number? ADV FREUND SC: 564. CHAIRPERSON: Okay. ADV FREUND SC: And Chair if I can indicate that my intention this morning is to move backwards and forwards between Bundle 1 and Bundle 2. 20 CHAIRPERSON: Okay that is fine. ADV FREUND SC: That is the judgment of the Constitutional Court on the Nkandla issue. You will remember the Public Protector’s Investigation Report on the Nkandla expenditure. You will recall that Parliament reacted in a particular way. The mezzo found its way to Page 8 of 288 29 APRIL 2021 – DAY 385 the Constitutional Court in a case brought by the EFF and others and the judgment as you will see was handed down on the 31st of March 2016. You will see that on page 564 but you can take it from me that is what it says. PRESIDENT RAMAPHOSA: Yes. ADV FREUND SC: Now if I take you to page 576 you will see at paragraph 95 that the Constitutional Court dealt there with it might be called the second issue that was before the court. 10 The first issue was the issue about whether the Public Protector’s Reports are binding and have to be adhered to unless reviewed. But there was the second issue and it is the second issue that is relevant for present purposes and that was whether Parliament itself had failed – and when I say Parliament I am particularly referring to the National Assembly – whether the National Assembly had failed in its oversight obligations of a type that we have just been discussing and in short the court found that it had failed. 20 It was in breach of its constitutional duties. And what I want to draw to your attention in paragraph 95 is that what the court says is this: “That because the Public Protector’s Report implicated the Head of State or the Head of the Executive it was this factor that made it Page 9 of 288 29 APRIL 2021 – DAY 385 and I now quote “A high priority matter that required urgent attention of and investigation by the National Assembly it ought therefore to have triggered into operation the National Assembly whose obligation to scrutinise and oversee executive action and to hold the President accountable.” Now that is a matter of record but the question 10 which arises from that and where again I am assuming that we are not going to be in any dispute between you and myself is that I want to know whether you accept this proposition.