/ 26 January 2018

What telling the truth means at the Eskom inquiry

Anoj Singh
Anoj Singh

Implicated parties continue to be lined up at the parliamentary inquiry into Eskom — and those who are prepared to sing like canaries about the utility’s dodgy dealings are afforded some protection.

Former Eskom executive Anoj Singh, who resigned on Monday, took the stand on Tuesday, and his equally disgraced colleague, Matshela Koko, did so on Wednesday. But there may be even bigger fish called to testify.

The inquiry chairperson has said the three Gupta brothers, President Jacob Zuma and his son, Duduzane, will be called to answer questions.

A recent report by City Press cites anonymous sources claiming that Gupta ally Salim Essa was preparing to submit evidence to the inquiry but the Mail & Guardian was unable to reach him this week to confirm this.

The Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act says all witnesses testifying before either Parliament or its committees are protected in terms of section 16(3) of the Act. This is does not prevent a witness from being criminally prosecuted by the authorities, if necessary, but it does mean that any evidence given to Parliament cannot be used against them. That is, as long as they don’t lie.

Section 16 states that a person who is being examined under oath or affirmation may be required to answer any question put to them and to produce any document requested if related to the inquiry. This applies even if this would incriminate or expose them to criminal or civil proceedings, or damages.

But in terms of subsection three, the evidence of a witness given before a committee may not be used against the witness as evidence of a wrongdoing or a crime outside the parliamentary process.

But this protection does not apply if the person lies under oath or the person commits an offence in terms of certain provisions of section 17 of the Act — that is, failing to fully and satisfactorily answer all questions put to them or to produce any documents they have when requested. Or if they provide false or misleading evidence.

In such cases, criminal charges may be brought against the witness and their testimony may be used as evidence of those specific offences.

According to Parliament’s legal department, the National Assembly or its committees do not have the authority to grant any person immunity from criminal prosecution or offer a person a plea bargain.

The protection afforded to witnesses in terms of the Act does not prevent the South African Police Services and the National Prosecuting Authority, in terms of their own processes, from conducting their own investigations and gathering evidence against any person.

But energy analyst Ted Blom argued before the inquiry that an amnesty should be provided to witnesses to entice those implicated to spill the beans.

The chairperson of the inquiry, Zukiswa Rantho, told the M&G that, although this was suggested, it has not been discussed.

Regarding the reports pertaining to Essa, Rantho said he was welcome to provide his side of the story and the inquiry would provide a platform for him to do so but no immunity was on offer.

Originally, the inquiry planned to look into the reappointment of former Eskom chief executive Brian Molefe and his retirement package and the allegations of state capture relating to the department of public enterprises and state-owned companies. But the scope has been broadened to include Eskom’s role in the Gupta-owned company Tegeta’s purchase of Optimum Coal, the awarding of a coal supply contract to the company, a contract with Gupta-owned newspaper, The New Age, payments to Trillian for consulting and advisory services, and alleged impropriety by Koko.