Parliamentary legal opinion urges steps on MPs, former minister named in Zondo report

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A legal opinion received by the speaker of parliament, and released under duress, calls for the legislature to take immediate action against ANC MPs Cedric Frolick and Winnie Ngwenya on the basis of the Zondo report, and points to potential sanction of Minerals Resources and Energy Minister Gwede Mantashe.

Parliament’s senior legal adviser recommended that the speaker should as soon as possible refer Frolick and Ngwenya to the legislature’s joint committee on ethics and members’ interests to consider whether they breached the ethics code by receiving benefits from government service provider Bosasa.

“This referral is not dependent on the release of the final portion of the report,” added the 15-page letter of opinion, dated March 22.

This contradicts the stance adopted by speaker Nosiviwe Mapisa-Nqakula and ANC chief whip Pemmy Majodina. Ten days ago, the official opposition called for parliament to act on adverse findings in this instalment of the report without delay.

Both argued that it would be improper to proceed before President Cyril Ramaphosa tabled a report on how the executive planned to respond to the overall findings of the state capture inquiry once the fifth and final part were released in mid-June. He is expected to do so in October.

Ngwenya, a member of the National Council of Provinces, allegedly took money from Bosasa to act in its favour while a member of the portfolio committee on correctional services.

Apart from Frolick and Ngwenya, part three pointed to alleged serious breaches by Mantashe, former deputy minister of correctional services and MP Thabang Makwetla, former minister Nomvula Makhonyane and former MP and chairperson of the correctional services committee Vincent Smith.

Although Smith, who has been charged with corruption, and Makhonyane are no longer MPs, this does not prevent parliament from investigating whether they breached section 8(2) of the Powers, Privileges and Immunities of Parliament Act and pressing criminal charges if evidence of this were to be found. 

Similarly, the legal opinion noted, nothing prevented parliament from revisiting Makwetla’s statements while he served as deputy minister to determine if he misled Parliament or otherwise contravened the Act so as to determine whether it is necessary to lay criminal charges in terms.

Section 8(2) prohibits MPs from taking money in return for adopting certain positions or voting in a particular way in the house or in a committee.

It does not apply to Mantashe, who accepted free security upgrades at three properties from Bosasa, because he was not an MP or minister at the time, but the ANC;s secretary general. 

But the opinion noted that chief justice Raymond Zondo found that there was “reasonable grounds for suspecting that Mr Mantashe accepted or agreed to accept gratification” and cause for believing that further investigation would establish a prima facie case of corruption. 

Since section 24(1) of the Prevention and Combating of Corrupt Activities Act (Precca) creates the presumption that a gratification was received to achieve a quid pro quo if it came from someone trying to obtain a contact, Zondo found that it could be applied to Mantashe to justify further investigation or prosecution.

“In the event that Mr. Mantashe is successfully prosecuted for corruption he may stand to lose his membership of the NA [national assembly] in terms of section 47(1) (e) of the Constitution if he is sentenced to more than 12 months’ imprisonment without the option of a fine,” senior parliamentary legal adviser Zuraya Adhikarie wrote.

“The mere commencement of criminal proceedings however does not affect membership.” 

Zondo also recommended that Makwetla, who accepted security work at his private home from Bosasa, be investigated for potential contravention of Precca.

Frolick is suspected of receiving several cash payments from Bosasa to convince Smith to soften his initial hardline stance against extending the company’s lucrative deals with the department of correctional services, though evidence of wrongdoing had emerged.

Zondo said he should be investigated for corruption.

He is the house chairperson of committees and was last week elected co-chairperson of the ad hoc committee appointed to oversee government spending on flood relief in KwaZulu-Natal.

Frolick chaired the national assembly programming committee where Mapisa-Nqakula revealed that she had received legal opinion on the Zondo report after the president sent part three to parliament.

She insisted: “There is no doubt that parliament will deal with the Zondo report, except there is a delay in doing so because we are waiting for the president to make that submission.”

Democratic Alliance deputy chief whip Siviwe Gwarube wrote to her demanding a copy of the legal opinion, stressing that there was no need for the national assembly to wait for Ramaphosa’s response to the Zondo report and that the separation of powers dictated otherwise.