Report on Complaint against Hon Ms NW Madikizela-Mandela, MP & Hon Mr MD Msomi: consideration; Response by Minister Mlambo-Ngcuk

ETHICS AND MEMBERS' INTERESTS JOINT COMMITTEE
19 February 2002
REPORT ON COMPLAINT AGAINST HON MS NW MADIKIZELA-MANDELA, MP AND HON MR MD MSOMI: CONSIDERATION; MINISTER MLAMBO-NGCUKA'S RESPONSE: TABLING; OUTSIDE FUNDING FOR COMMITTEES: TABLING; REVISED CODE: TABLING

Chairperson: Sister BNZ Ncube (ANC)

Documents handed out:
Report by Registrar on complaint against Ms MNW Madikizela-Mandela (see Appendix 1)
Response letter from Ms MNW Madikizela-Mandela (see Appendix 2)
Report by Registrar on complaint against Mr Msomi (see Appendix 3)

SUMMARY
The Committee discussed their dissatisfaction with Ms Madikizela-Mandela's tone in her response letter to the allegations. The Registrar's recommendations on the complaint against Mr Msomi were unanimously agreed to. The tabling of Minister Mlabo-Ngcuka's response was not discussed and the rest of the meeting was not open to the public.

MINUTES
Complaint against Ms Madikizela-Mandela
The Registrar of Members' Interests, Ms Mahomed, circulated Ms Madikizela-Mandela's response letter and summarised her recommendations to the letter (see Appendix A). In her letter Ms Madikizela-Mandela denied all allegations of non-disclosure of benefits, spaza shop and restaurant and indicated that the Registrar was free to inspect evidence to clear her name (see Appendix B).

The Registrar argued that Ms Madikizela-Mandela failed to directly address the allegations and recommended that Ms Madikizela-Mandela be contacted for further clarity of facts and evidence thereof.

Mr Moorcroft (DP) suggested that even though it was not procedural, it would be wise to accept Ms Madikizela-Mandela's offer to permit the Committee to inspect her bank records against the allegation that she has been receiving gifts of more that fifty thousand rands a month.

Other Members supported the idea and further suggested that her financial transactions needed to be audited and that she needed to make a sworn statement.

Mr Mushwana (ANC) warned that such steps are an invasion of privacy and could set a precedent for other Members of Parliament to be investigated in that way. He said that the Committee needed to first establish that Ms Madikizela-Mandela's claims were true and then decide on the next step.

Mr Aucamp (AEB) thought that Ms Madikizela-Mandela's tone in the letter showed contempt towards the Committee and that no parliamentarian should be allowed to express themselves in that tone as that would be a disgrace to the institution of Parliament. Most of the Members agreed and some quoted lines from the letter to indicate their dissatisfaction with the tone and content.

Ms Seaton (IFP) suggested that Ms Madikizela-Mandela be notified about this dissatisfaction and that the Committee could not determine anything from the letter because it lacked evidence. Members were in agreement.

A Member disliked Ms Madikizela-Mandela's statement that "lawyers throughout the world are known to argue anything to save their clients. I was not aware that in their desperation to get me out on bail they inferred this type of information". He suggested that what this statement may imply could force the Committee to take this issue further to the Law Society as it implicates the lawyers too.

Mr Mushwana pointed out that Ms Madikizela-Mandela's tone may have been caused by the leakage of some documents that reached the media before Ms Madikizela-Mandela was notified of the committee's intentions. The Committee was unanimous that the leakage needed to be investigated and it was regrettable that it happened in the Ethics Committee.

As Members expressed dissatisfaction about the tone of the letter, Mr Mushwana interjected and consolidated the discussion into an agreement that Ms Madikizela-Mandela would be notified of the Committee's dissatisfaction with the tone of the letter and would be required to produce concrete proof of her innocence.

Complaint against Hon M Msomi MP
The complaint was that Mr Msomi did not disclose a discount that could be regarded as benefit when he bought two motor vehicles (LWD 3.9 RODEO Chassis number K35JNRTE 006104 and Auto Elegan V6 Chassis number 2100656A433202). Mr Msomi denied the allegations (See Appendix C).

The Registrar recommended that Mr Msomi still needed to give some documentation to prove his innocence. The Registrar read the response to the Committee the recommendation was unanimously agreed to.

Tabling of Minister Mlambo-Ngcuka's response
The Registrar suggested that the Committee should not deal with the matter as it was already under investigation by the Public Protector. This was agreed to.

Tabling of outside funding for committees and tabling of revised code
This part of the meeting was closed to the public.

Appendix 1:

Report to the Joint Committee on Ethics and Members' Interests with regard to the complaint against Mrs NW Madikizela-Mandela

1. Background

Media reports stated that on the 17 October 2001 Mrs Madikizela-Mandela's attorney disclosed in a bail application to the Special Commercial Crime Court in Pretoria, that she received monthly donations of R55000 from friends, supporters and "well-wishers". Media reports also at the same time referred to a spaza shop "Siyaya" and a restaurant.

It was noted that Mrs Mandela had not disclosed to the Joint Committee on Ethics and Members Interests, the donations that she allegedly referred to and interests or income from the spaza shop and restaurant.

On the basis of the reports in the media the Registrar of Members Interests asked the Chairperson of the Joint Committee on Ethics and Members' Interests if her office could pursue the matter in terms of the procedure for the investigation of complaints. Subsequently a complaint was received from Mr Gibson.

The Chairperson agreed that Registrar communicate with Mrs Madikizela-Mandela and to request she (Mrs Mandela) respond to the allegations. See annex 1.

2. Mrs Madikizela-Mandela's response to the allegations of non disclosure.

2.1 Response regarding the non- disclosure of restaurant and spaza shop.
The Registrar of Members' Interests received a response from Mrs Madikizela-Mandela's attorneys on the 12 November 2001. In the response Mrs Mandela fails to directly address the allegations of non-disclosure, instead, the letter states that the Winnie Mandela Family Museum was registered in May 2001. It does not clarify whether the Mandela Family Museum includes the restaurant and spaza shop.

Response regarding the non-disclosure of benefits received.
Mrs Mandela denies receiving any donations and further states that the attorney was mistaken. See annex 2.

3. Consideration of Mrs Madikizela- Mandela's response

3.1 Consideration of Mrs Mandela response regarding the alleged non-disclosure of the spaza shop and the restaurant.

Mrs Mandela response does not address the allegations regarding the non-disclosure of the spaza and the restaurant however there appears to be an admission of ownership of the Winnie Mandela Family Museum.

I have scrutinised Mrs Mandela's 2001 disclosure and can confirm that the Winnie Mandela Family Museum has not been disclosed.

By way of explanation Mrs Mandela states that she is not a direct beneficiary of the business, but that the purpose of the business is to generate income for the maintenance of her children and grandchildren.

In terms of the Code of Conduct Mrs Mandela is required to disclose any financial interest or directorship that she may have or have had at the time of disclosure. It is my view that Mrs Mandela has not complied with the disclosure requirements of the Code of Conduct.

Further clarity must be obtained with regard to Mrs Mandela's interests in the spaza shop and the restaurant.

3.2 Consideration of Mrs Mandela's alleged non-disclosure of the benefits that she received.
Mrs Mandela's disputes the details provided by her attorneys in court. The report in the media does not give the full text of the bail application it is therefore difficult for the Registrar to make conclusions on this matter.
Furthermore, Mrs Mandela claims that the matter is covered by the sub judice principle and therefore she cannot comment on the allegation. The Parliamentary law Advisers have been asked for an opinion on this matter. An old opinion from the Law Adviser regarding the sub judice rule is attached see annex 3.

Recommendations

The Registrar communicates with Mrs Mandela to obtain clarity on whether the Winnie Mandela Museum incorporates the spaza shop and restaurant and further Mrs Mandela should explain why she has not disclosed the Winnie Mandela Museum in her 2001 disclosure.

It is suggested that the Registrar obtain the actual transcripts of the bail application to get further clarity into the alleged non-disclosure of benefits. The Parliamentary Law Advisers will draft an opinion on whether the bail application is covered by the sub judice principle.

If Mrs Mandela does not fully respond to the second communication by 5pm on the 21 November 2001, I recommend that the Committee convenes a hearing to determine the facts.

In terms of the Procedure, Mrs Mandela must be given a minimum of ten days notice of a hearing.

Appendix 2:
Addendum to the Report by the Registrar of Members' Interest on the Complaint against Mrs NNW Madikizela-Mandela, 13 February 2002

1. Response by Mrs Mandela.
Subsequent to the report of the1st February 2002, Mrs Mandela responded to the following questions posed by the Registrar.
In your previous correspondence you stated that the Winnie Mandela Family Museum was registered in May 2001, does the Museum business incorporate the spaza shop and the Restaurant? Could you please indicate the exact nature of your financial interest in the business, for example are you a Director or is the business in a family trust?
Could you also please explain to the Committee why the Winnie Mandela Family Museum was not disclosed to the Committee of Ethics and Members' Interests?

Mrs Mandela responded that the Museum belongs to the Mandela children and not to her; she further states that she has no financial interest in the home. Mrs Mandela further stated that the Johannesburg City Council demolished the "infrastructure selling refreshments to tourists". Mrs Mandela indicated that the records are available to the Committee.

The Committee requests that you respond to the allegation that you have received donations in excess of R50 000 per month from friends, supporters and "well wishers" which was also not disclosed.

Mrs Mandela denies that she receives donations and has indicated that her bank records are available for inspection.

2. Consideration of Mrs Madikizela-Mandela's response regarding the Winnie Mandela Family Museum and the spaza shop and restaurant.

Mrs Mandela states that the Mandela Family Museum and infrastructure (spaza and restaurant) that was demolished belong to her children.

In terms of Section 9(h) of the Code of Conduct with regard to financial Interests, Members are only required to disclose the interests of dependent children.

As Mrs Mandela has not fully responded to the question of whether she is a Director of the Museum, it is difficult for the Registrar to make a conclusive finding.

It is recommended that
Mrs Mandela should submit any documents in her possession to the Committee to establish that she has no financial interest in the Mandela Family Museum.

3. Consideration of the complaint regarding the alleged receipt of donations.

With regard to the donations allegedly received by Mrs Mandela, she denies that she received donations and has indicated that her bank records are available for inspection.

There is no concrete proof that Mrs Mandela received any donations other than the bail application made by Mrs Mandela's lawyers. It is therefore difficult for the Registrar to make a ruling with respect to the allegation that Mrs Mandela received donations.

It is recommended that the Committee further pursue this matter by
Request further information from the complainants and
Mrs Mandela be asked to submit a sworn statement from her auditors/accountants stating that she does not receive any donations, or
The Committee appoints auditors to investigate whether Mrs Mandela had in fact received any donations.

Even though Mrs Mandela has agreed to submit her bank records to the Committee I am of the view that as far as possible a Members privacy must be protected and therefore the Committee should consider whether it wishes to set a precedent by asking for bank statements.

In considering the matter it must be noted that the request for further information is not meant to question Mrs Mandela's response but rather to allow the Committee to independently verify the facts.

Appendix 3:
Second Report to the Joint Committee on Ethics and Members' Interests on the complaint against Mr MD Msomi MP 01 February 2002.

The Registrar of Members' Interests at a meeting of the Joint Committee on Ethics and Members' Interests held on the 26 September 2001 tabled a report on the complaint against Mr Msomi.

On the same date Mr Msomi submitted additional documentation to the Committee on the acquisition of the motor vehicles. The Committee did not consider Mr Msomi's response or the additional documentation to the allegations. The Committee decided that they will wait for the outcome of the Joint Investigation into the Strategic Defence Procurement packages before proceeding with the complaint against Mr Msomi.

The Report of the Joint Committee on Ethics and Members' Interests tabled on the
6 December 2001in both the National Assembly and the National Council of Provinces resolved that the Committee must consider the allegations against Mr Msomi through the normal procedures of the Committee.

In terms 2.5 of the Procedure for the Investigation of Complaints the Registrar must consider the member's response and table a summary of the preliminary investigation and a proposed procedure for further investigation.

In terms of 2.6 of the Procedure for the Investigation of Complaints the Joint Committee on Ethics and Members' Interests must agree to the procedure for further investigation.

In 3.1 of the Procedure, hearings must be held when the facts are in dispute. The Committee may decide to hold a hearing if the investigation of the Registrar is inconclusive or if the Registrar is unable to make a finding or if the Committee decides that a hearing must be held.

In considering the documentation submitted by Mr Msomi, the Registrar notes that the information provided is insufficient and therefore further correspondence was sent to Mr Msomi asking him to explain the following:

Why was the vehicle LWD 3.9 RODEO Chassis number K35JNRTE 006104 purchased through MM Worfel as indicated on the invoice (Annex 1)
Did you receive any discount over and above a normal trade discount on the vehicle?
Did you receive any preferential discount because you are an MP or because of your role as Chairperson of the Portfolio Committee on Public Enterprises?
Who was paid for the vehicle?
The media have indicated that you corresponded directly with Mr Worfel regarding the service of the motor vehicle, if this is correct why did you not deal directly with the dealer? Please submit any correspondence in this regard to the Committee?
With regard to the purchase of the Auto Elegan V6 Chassis number 2100656A 433202 can you please explain why the car was invoiced in 1998 and the price calculated in 1997? (See Annex 3)
The workshop enquiry report states that the Pretoria fleet sold the car on the 15
September 1997 (see annex 4). Can you explain why the car was invoiced on the
25 July 1998?
Can you provide the Committee with the motor vehicle registration papers and the transfer of ownership papers for both motor vehicles?
Can you also provide the Committee with copies of your motor vehicle HP agreements if motor vehicles were paid by other means, please furnish the Committee with the appropriate documentation?
Can you please indicate what year the vehicles were manufactured?
Can you indicate what the kilometres of both cars were on the date of purchases and the condition of both vehicles?

On the basis of the response to these questions the Registrar will recommend whether further investigation is required.