Strategic Arms Acquisition: Special Review

Meeting report

STANDING COMMITTEE ON PUBLIC ACCOUNTS
24 January 2001
SPECIAL REVIEW OF STRATEGIC ARMS ACQUISITION

Present:
Gavin Woods (IFP) Chair Laloo Chiba (ANC)
Andrew Feinstein (ANC) Vincent Smith (ANC)
Raenette Taljaard (DA) Don Gumede (ANC)
Gerhard Koornhof (UDM) Nomvula Shangwane (ANC)
Bruce Kannemeyer (ANC) Nigel Bruce (DA)
Francois Beukman (DA) Beatrice Marshoff (ANC)

also Thandi Modise (ANC) Chair of Portfolio Committee on Defence, Patricia de Lille (PAC), Shauket Fakie, Auditor General

Relevant documents:
Auditor General's Report: Selection Process of the Strategic Defence Packages
Fourteenth Report of the Standing Committee on Public Accounts
Letter of 15 January 2001 from Minister Maduna to President Mbeki;
Letter of 24 November 2000 from Office of the Auditor General to SCOPA and
other correspondence

SUMMARY
The Committee met to consider its 14^th report on the armaments acquisition programme and the ways of approaching the public controversy surrounding its Fourteenth report, made at its meeting of 13 November 2000. A sub-group was formed to attempt to re-construct that meeting.

MINUTES
[Editor's Note: What follows is an edited first person account of the meeting]

Chairperson Woods: The report of the last meeting has led to an obviously vexing national debate. How do we proceed? Do we have incoherent arguments that will haunt the Committee's public reputation, or rational debate? We need to resolve our differences over the 14^th report. We need to regain focus on the report and its indisputable intention to investigate the arms deal.

Given the events of the past months, we have become pre-occupied by the local elections and the holiday recess. Our differences, real and perceived, must be resolved by identifying the issues of contention and planning how to move forward.

Feinstein (ANC): We need to reassure the public that the Committee is taking its work seriously. We need this opportunity to take the Committee forward on a united, non-partisan basis. My colleagues concur. May I suggest the Chair give a report back on what has happened since the 14^th report was issued?

Taljaard (DP/DA): I wish to echo the Chair's sentiments, and note that we are required to report back to Parliament and to the public. All parties have restated their support for SCOPA's report.

Report-Back on Developments since November 13, 2000
Chairperson Woods: After the Committee adopted the report, it was adopted by the National Assembly on 2 November 2000. The decision of the Committee, approved unanimously by the National Assembly, was to hold an exploratory meeting within two weeks with four agencies, and any other appropriate bodies. The Agencies were the Auditor General, the Public Protector, the Independent Directorate for Serious Economic Offices and the Heath Special Investigating Unit.

Present at the meeting of 13 November 2000 were nine members of SCOPA plus Patricia de Lille (PAC) and Renette Taljaard (who was then not a member of the Committee). The Committee's structured approach included a consideration of the Acts which govern the four bodies, the projected extent of the investigation, and what skills the agencies could bring to the investigation.

We realised that all four agencies had overlapping skills, but that they are also unique in particular aspects. We established the need and desirability of using the four, including possible legal problems and impediments. The Committee engaged the agencies regarding resources, one issue being the accountability of the agencies to SCOPA during the course of the investigation, and the report back.

The four agencies had no objections to working together, and were keen to do so. At the media briefing afterwards, I was asked to represent the Committee and agencies and to announce that the agencies would meet to work out their modus operandi.

The Speaker of the National Assembly, Ms Ginwala, voiced concerns about accountability, particularly of the two agencies not under Chapter 9 of the Constitution, the Heath Unit and the IDSEO. There was some disagreement between myself and the Speaker concerning parliamentary privilege. She suggested that the European Union might provide funding for good governance investigators. She suggested that Professor Fink Haysom should give an opinion on how SCOPA should relate to the agencies. I drafted a letter to Professor Haysom and the Speaker objected on the basis that there should be greater distance between SCOPA and the agencies. Woods approached an advocate employed by the Auditor General. He advised that SCOPA was on the right track, and had not violated any requirements. Professor Haysom concurred, as did other parliamentary advisors, since the Constitution says unambiguously that all organs of state are accountable to Parliament.

The issues grew bigger in the media and public concern. The Judge Heath issue crept onto the agenda. Mr Wally van Heerden of the A-G office advised that the Heath SIU had special skills, and said that he hoped the presidential proclamation would come soon. He also urged me to write to the President. I drafted a letter to the President asking him to issue the proclamation.

The Speaker's press statement on 27 December caught me by surprise, including her view that the National Assembly report had not included Heath, and that I was acting unilaterally outside SCOPA. She also said that the Committee cannot "subcontract."

The Speaker's statement caused people to take positions. Regrettably it became political because the Minister of Justice adopted the Speaker's objections to Heath's proclamation. The President considered the Speaker's view

We need to be very sensitive to the President's understanding, and the advice to him from the Speaker that Parliament had not taken a view.

Taljaard: Could SCOPA members have access to all the correspondence? I have an incomplete picture. The Minister of Justice refers to various addendums and annexures.

Kannemeyer (ANC): I echo sentiments by Andrew Feinstein on the way the Chairperson has approached the matter. I am convinced the Chairperson has always facilitated the Committee's work. There are differing recollections of the meeting in Pretoria on November 13. Both the report and the meeting intended a comprehensive team with all the skills possible. But at neither meeting did we single out any one agency or suggest that the absence of any would cast doubt on the integrity of the investigation. The parliamentary report did not refer to a need for a presidential proclamation.

[Kannemeyer then refers to paragraphs 2 and 3 of Hansard page 1059 of 2 November 2000 - see appendix]

The emphasis of that paragraph is upon the word "exploratory." The exploratory meeting was held on 13 November 2000. The four units were invited to the meeting so that the Committee could prepare a brief in terms of their legal competencies, etc. They were represented by their unit heads, including Judge Heath, except that Bulelani Ncquka had a representative. Feinstein asked Heath what impact the (Road Accident Lawyers) Constitutional Court case would have. Heath replied: "no effect."

The intention was for the Committee to finalise the arrangements knowing that the Committee would not meet again during the recess. The ANC members put forth a memorandum. Feinstein was tasked to work with Chairperson Woods. Other structures were also established for the period of the recess for the Gauteng representatives to meet in Pretoria.

I do not think the work of this Committee should be hampered by any differences of recollection. There are still three bodies to proceed with the investigation.

Feinstein: On 13 November 2000 Mr Kannemeyer raised some procedural questions. Had we not had the delays over the recess we would not face these problems. We received an enormous amount of information from the Secretariat yesterday. Let us form a sub-group, including new members from the DA, that can reconstruct the events of 13 November, and then clarify a joint view.

The investigation must go ahead. We have a responsibility. The three units must proceed and have the support of all South Africans.

Taljaard: I note the need to reconstruct the events of the 13 November meeting, and I also note that the Committee had mandated Chairperson Woods to speak on behalf of the Committee. Press coverage in Business Day and The Citizen the following day referred to five agencies. Committee members were satisfied by the joint investigation including the element of co-operation. We must also source/reconstruct the opinions of Taljaard and De Lille. Public interest is so high.

Koornhof: There are three aspects:
All members want a credible and independent investigation in the public interest, using all available resources and recognising the oversight role of Parliament. The independence of Parliament and its committees is a matter of principle. The intention of this committee accepted by Parliament was to include the four bodies -- namely the Heath Special Investigating Unit, the Auditor General, the Public Protector and the Investigating Directorate of Serious Economic Offences. This view was supported by the Auditor General. Whether Judge Heath personally was included in the Heath Special Investigating Unit was not at issue.

The investigation would be halted now while a sub-group reconstructs the November 13 meeting. The investigation must continue under the chair of the Auditor General, and the sub-group can report back later, but the intention was to include the HSIU.

Taljaard: Did anyone contact Chairperson Woods after November 13 to suggest that there were differences from those reported in the press and elsewhere? In my letter of 24 January 2001 to the Committee, I suggested that the Speaker be invited to SCOPA to explain her statement of 27 December 2000.

Gumede (ANC): We support the 14^th report of SCOPA. But we must not lose sight that there have been a number of allegations without a shred of concrete evidence. I support Andrew Feinstein.

Hlangwana (ANC): The DA's suggestion of including people from outside of this committee brings problems. How do we understand the 13 November meeting? At that meeting we all agreed what the resolution was. I would not agree that new outsiders be brought in.

Smith (ANC): In response to the DA suggestion of a public meeting, I believe our decision was that bringing in all the units would undermine the Auditor General as chair. Whereas it was the intention of all units to participate, if it is now unconstitutional we cannot allow the HSIU to participate. Otherwise, legalise the SIU. We must ratify the recommendation of any sub group. Taljaard has referred to press coverage of 14 November 2000. Is she suggesting that the media reports are binding? I am not sure whether recollections prior to the 13^th are binding anyway. It is only now that we are ratifying the report.

Woods: There are also SABC video reports of the 13 November meeting.

Feinstein: The investigation should go ahead now with the three units. We may have to reconstruct the events of around the 13^th. Let us not cast aspersions on the media, but The Citizen's record is questionable.

Gumede: Will the pronouncement of the Constitutional Court be sent to the sub-committee?

Modise (Chairperson of Defence Portfolio Committee - ANC): The Portfolio Committee on Defence looked at allegations before October. At that time there was no conclusive evidence until the Auditor General's report came to SCOPA. There has been no formal meeting between the Defence Committee and SCOPA, and under Rule 208 we need to have a consultation. It would make sense to invite the Committees of Finance, Trade and Industry, Public Enterprises and Defence so that all players are present and represented. The allegations talk about a reconsideration of the package. It would be very expensive to reconsider the package. How would we sell that to the public?

Chairperson Woods: I concur about the need for formal meetings with those committees.

Koornhof: We intended to have all units. We must get the legal standing of the SIU -- distinguishing between the SIU and Judge Heath.

Beukman (NNP/DA): The Constitutional Court ruled that the relevant section is invalid. The President may be reluctant to issue a proclamation.

Chairperson Woods: The Minister of Justice may render the Heath SIU legal.

The following members of a sub-group were selected to reconstruct the meeting of 13 November:
ANC DA
Andrew Feinstein Renette Taljaard
Laloo Chiba Francois Beukman
Bruce Kannemeyer
Nomvula Shangwane
Beatrice Marshoff

Assessment of the Investigation, and its Capacities: The Way Forward
Chairperson Woods: How do we now assess the investigation? Is it on track? Has it sufficient capacity?

Taljaard: There was concern at the 13 November meeting about adequate funding. We need to make a resolution to Finance to provide the funding. I strongly support Thandi Modise's comments regarding linkages with other committees, especially concerning the offsets and the industrial participation programmes.

Chairperson Woods: I will ask the Auditor General to report back about the funding aspects.

Taljaard: Stress urgency.

Beukman : In view of the public importance, the proceedings should be in public in order to underline transparency.

Feinstein: There is a need to liase with Rob Davies [Chairperson Trade & Industry Portfolio Committee] regarding the Trade and Industry hearings on the offsets.

Hlangwana: We must not get involved in discussions about the finances of Chapter 9 institutions.

Feinstein: I wish to make a plea for the first meeting to be closed, but otherwise I support open meetings.

Smith: The sub-group will make recommendations. The SCOPA meetings will accept or reject those recommendations.

Taljaard: These are serious issues, crucial to the reconstruction of the 13 November meeting. I am not comfortable with closed meetings.

Gumede (ANC): I plead with the DA to reconsider. If we have media grandstanding, the ANC will not want open discussions. This would not be in the spirit of SCOPA. Let's not create difficulties. Sub-groups cannot make decisions, only recommendations. Previous meetings of sub-groups have been closed.

Feinstein: For the information of new members, I plead in the spirit of SCOPA to have the first sub-group meeting in private. Give us an opportunity to discuss it.

Kannemeyer: I appeal to the DA to maintain the spirit of SCOPA.

Chairperson Woods: Transparency and the national interest are points in favour of open meetings. But the ANC pleads to be given time. The issues are genuine and legitimate.

Bruce (DP/DA): The DA is being accused of trying to break the consensus. This is a matter of major public interest. How a recommendation is formulated is equally valid.

Koornhof: If we split the Committee on party lines on this, we will destroy the investigation. This committee must be in public, but not the sub-group.

Feinstein: Sub-groups operate in closed meetings because the Auditor General might not be able to reveal information in public meetings. We need to respect that. We can't have new members change that. I emphasise that the Chair and the Committee has undertaken critical work. The effect of splitting the Committee on party lines would be disastrous. Please give us time to discuss the need for closed meetings.

Chairperson Woods: There are issues of principle and of risk. It is also a constitutional matter under Section 58 (2).

Taljaard: There is a tacit insinuation between old and new members that the DA does not act with due diligence. It is crucial to the public to ensure that SCOPA meets its Constitutional obligations. The sub-group will be discussing whether to call the Executive before SCOPA as well as reconstructing the meeting of 13 November. These are serious matters which transcend previous public interest. The agreement is fundamental, premised on public transparency, and the DA will have to reconsider its involvement.

Feinstein: I understand Taljaard's input, but it is extremely damaging to this Committee. The issues are huge. When the decision of closed sub-groups was made, it was Ken Andrew of the DP who proposed it. The Constitutional rules were discussed at great length. I again appeal to the DA to consider the implications of splitting SCOPA on party lines.

Woods: I am aware that there is a Constitutional point. Nonetheless, I propose that we accept the ANC/UDM proposal for the first meeting.

Feinstein: The transcripts of the initial meeting can be released to avoid perceptions of "smoke-filled rooms."

Taljaard: I have very serious reservations, and suggest a legal opinion on the Constitutional aspects given the gravity of the issue and the public interest. I am not willing to give a commitment on this at this point.

Smith: We've been ambushed. The ANC still hasn't considered this. We cannot take this decision today. We should not take any more input today.

Chairperson Woods: There is a proposal on the table of a closed meeting, and no counter-proposal from the DA. Please advise the considered answers of your parties as a matter of urgency.

The Relationship Between SCOPA and The Executive.
Chairperson Woods: The media statement by the four Ministers at Johannesburg Airport on 12 January 2001 took a critical look at the work of the Auditor General and SCOPA. Serious questions have now arisen about the approach of the Executive towards Parliament. Contrary to their statement, we had never received a request from the Ministers that they wished to meet us. There is also the separate letter from Deputy President Jacob Zuma. If we stand by our 14^th report, we look forward to hearing the criticisms of the Ministers and to our opportunity to defend our work.

Smith: We agree. We also note Thandi Modise's input, and should extend invitations to the other [parliamentary] committees.

Taljaard: The DA agrees, including the committees.

(The Committee agreed to invite the Ministers of Trade and Industry, Defence, Public Enterprises and Finance)

Chairperson Woods: Regarding the letter from Deputy President Zuma, do we say to Parliament that we let you down but that we cannot fudge on these issues?

Feinstein: Can't we say to Deputy President Zuma that we support the report and that there are two interpretations of the 13 November meeting which the sub-group will endeavour to resolve.

Koornhof: The Deputy President's letter is public knowledge. I am concerned about its tone. We should also invite the Deputy President to SCOPA to explain himself.

Chairperson Woods: We should invite the Deputy President in order to be consistent with the invitations to the Ministers.

Gumede: No, we cannot make such a decision until we know the content of the Deputy President's letter.

Chairperson Woods: I accept that you may need more time to study it.

Taljaard: We had the opportunity last night. Some of us have been up late. The letter from the Deputy President focuses on particular paragraphs of the report to which SCOPA has given its unanimous support. The Deputy President is taking issue with the report, not the meeting of 13 November, not the offsets and foreign jurisdictions. We need to decide how we engage the letter.

Chairperson Woods: I share your frustration, but I do think that the members need more time.

Taljaard: We also refer to the extensive correspondence -- if we are allowing more time.

Chairperson Woods: I spoke to the Speaker this morning, and she wants to speak to the Committee at the earliest opportunity.

Feinstein: We accept the way forward.

Beukman: Can the SIU Act be amended to include the SIU in the full committee's multi-agency investigation?

Chairperson Woods: The Minister of Justice has suggested that the amendments will be before the Justice Committee next month.

Taljaard: The Minister of Justice's office says it has twelve months to consider the implications of the Constitutional Court ruling, and that the redrafting of the SIU mandates could therefore be substantial. Perhaps as Chairman you would like to investigate this with the Minister of Justice?

Chairperson Woods: Given the volume of work this investigation has entailed, may I recommend the reinstatement of a management committee.

(The Committee agreed)

Auditor General Fakie: There are eight reports now ready for SCOPA's consideration, and another 20 within the next two to three weeks.

Koornhof: All decisions today imply delays in the process. We must catch up so that we do not delay the investigation.

Chairperson Woods: I am satisfied with what we have achieved today. Thank you.

The meeting adjourned. The Committee will next meet on Monday, January 29, 2001, the venue yet to be determined.

Appendix 1:
Hansard extract of 2 November 2000
"The Committee will prepare a brief for such an investigation, which stipulates particular assertions that ought to be investigated, while placing no limitation on the scope of the investigation.

In noting the complex and cross-cutting nature of the areas to be investigated, the Committee feels that the investigation would be best served by combining a number of areas of investigative expertise and a number of differing areas of legal competence and authority. It therefore recommends that an exploratory meeting, convened by the Committee, to be held within two weeks of the tabling of this Report in the National Assembly. The Auditor-General, the Heath Special Investigating Unit, the Public Protector, the Investigating Directorate of Serious Economic Offences and any other appropriate investigative body should be invited, so that the best combination of skills, legal mandates and resources can be found for such an investigation. Once this is established, the Committee will issue an investigation brief to the team for its input. Also, the chosen investigating body will be requested to report on its progress to the Committee at regular intervals, as well as at the conclusion of its work, so that this can be included in the Committee's final report to the National Assembly on the matter. "