The Minister of Home Affairs briefed the Committee to clarify the facts on the process followed during the naturalisation of the Gupta family. After acknowledging that it was the duty of Parliament to hold the executive to account, he provided an overview of the performance and vision of the Department of Home Affairs (DHA) prior to shedding light on the Gupta family’s early naturalisation.
He first responded to a Member’s question of whether the Minister had breached the Constitution by way of lying under oath, according the findings of the court. He was of the view that nowhere in the court’s judgment had it indicated that he had lied under oath, and the Member who had raised this had misled the House. It was a matter that he would take up with the Speaker of Parliament.
He gave extensive details of the naturalisation process followed by the Gupta family, and the technical reasons for rejections, such as applying as a family and not individually, or not renouncing their Indian citizenship. He made it clear that all applications for documents had to be directed to the Department, and not the Minister’s office. Appeals could be sent to the Minister, but he would forward them to the relevant official with an instruction to review the application along with the appeal, and advise the Minister if there was any basis either to uphold the decision initially made, or to set it aside. A memorandum would then be prepared and submitted to the Minister, advising him whether to uphold the initial decision or to set it aside. There were many such cases, and the Gupta issue had been no different to other appeals which the Minister had to deal with.
In the Gupta case, when the DHA had turned down the family’s initial application, they had been advised that they had to renounce their Indian citizenship first, which two of the five members had refused to do. Their refusal served as the basis not to grant citizenship to Mr Ajay Gupta or Mr Atul Gupta. Should they be found to have committed a crime in South Africa, the Department would act accordingly and withdraw their permanent resident permits. If anyone one found guilty had citizenship, the citizenship would be withdrawn. He said that a letter that had been leaked to the media had been tampered with, and had painted the Department as dishonest and brought it into disrepute. The matter was being investigated.
Members said that with the facts at their disposal, the Committee was a step closer to concluding the Gupta matter and reporting back to the National Assembly, as instructed by the House Chairperson of Committees. The Committee would in due course meet to consider the full range of facts and information as presented by the Department through submitted documents. This would result in a report with comprehensive recommendations to the National Assembly. While it had taken a quite long time to reach this point, Members appreciated all the assistance they had received from the Director General and the Minister in clarifying the Gupta family’s early naturalisation.
The Electoral Commission of South Africa (IEC) said its performance for the second and third quarters of the 2017/18 had been achieved against the backdrop of the following environment:
- The urgent need to acquire and record addresses of voters on the voters roll, which included an online address-harvesting campaign scheduled for 10-11 March;
- A highly contested and fractious political environment, which had resulted in an increase in the number of by-elections; and
- Continued economic difficulties and constrained fiscal conditions.
The IEC reported that the number of registered voters as of 30 November 2017 was 25 899 778, of which 19 418 210 (75%) had complete addresses. For the address-harvesting weekend, 22 606 voting stations would be open and 73 095 staff had been recruited. The cost for venue hire, recruitment and training of staff, materials and transport, was R230 million. The IEC also provided Members with by-elections statistics and an update on party funding legislation.
The Government Printing Works (GPW) reported on its performance, and indicated that revenue collection had dropped owing to a reduction in smart ID card sales and the number of Government Gazettes issued. Members asked when Government Gazettes would be published electronically in the Western Cape; when the GPW was going to become a state-owned company, and when a Chief Executive Officer (CEO) would be appointed on a permanent basis.
The Chairperson opened a meeting by stating that Members had been asking for the Minister of Home Affairs, Malusi Gigaba, to address the Committee. Since he was present, he should brief the Committee on the issue of the Gupta family’s naturalisation.
Mr D Gumede (ANC) supported the proposal, saying this was the position of the ANC.
Ms D Raphuti (ANC) seconded. She commented that the issue of the Guptas had been painful to the Committee and remained unresolved, in spite of the fact that the Director General (DG) had appeared twice before it.
Ms H Hlophe (EFF) said that Members from opposing political parties were being ambushed by Members of the ANC, because every time they raised the issue of the Guptas, ANC Members would claim that the Members should focus on the items on the agenda. Although these Gupta issues were not on the agenda, they were happy with the ANC proposal, provided that the Independent Electoral Commission (IEC), the Government Printing Works (GPW) and the Department of Home Affairs (DHA) were given enough time to brief the Committee.
Mr M Hoosen (DA) said that he fully seconded the proposal, and asked why the ANC had been blocking the Minister from coming to brief the Committee. He also made a request that the Minister should respond to the finding of the court that he had breached the constitution, when he had lied under oath.
The Chairperson welcomed the Minister and the Deputy Minister, Ms Fatima Chohan, as well as senior officials from the DHA.
Minister on Guptas’ early naturalisation
Mr Gigaba said that it was his pleasure to be back as Minister of Home Affairs, as it was not a new terrain and he hoped to hit the ground running. It was the duty of Parliament to hold the executive accountable and that he appreciated the opportunity given to him to clarify the matter.
The DHA was still focusing on five priorities that were set out in the Medium Term Strategic Framework (MTSF) 2014-2019, in terms of which they intended to improve through leadership intervention. He appreciated that the DHA had a call centre and hotlines and that it was accessible through social media communication mechanisms. There was an on-going modernisation system. However, the modernisation system was a once-off, and something would need to be done from time to time. Every time a new milestone was achieved, a new one was set. What types of services would a baby born this year expect when she/he turned 16 years old? This was the main question that the DHA was focusing on. How would that child live in the future?
The DHA was focussing on a review of the international migration process. There had been the adoption of a White Paper on international migration in 2016, which set out a new path for policy and legislation. It ushered in a new era in South Africa. New legislation related to civic services, immigration and refugees would be introduced. The DHA sought to improve six ports of entry, with a particular focus on Beitbridge and Lebombo. They hoped to take this process forward this year and to ensure that the Border Management Authority (BMA) was operational. They remained convinced that they could achieve most of their targets and could keep and achieve a clean audit.
On the issue of Guptas, he said that he would start by responding the second question, even though the matter was sub judice. He would like to make few comments. He was of the view that nowhere in the judgment had the court indicated that the Minister has lied under oath and breached the Constitution. The Member who had raised this had misled the House on 21 February 2018, and this was a matter that he would take up to the Speaker. The Member who raised this – as a lawyer – should have known that the matter had been appealed against, and once the matter was appealed against, the entire judgment was suspended. The only judgment which was not appealed against was that which had been delivered in December, which had said that when the matter was appealed against, certain aspects should operate. This was the only judgment which was operating. The entire judgment had been appealed against.
It was important to note that the decision to appeal against the judgment had been made while he was no longer the Minister of Home Affairs. He had made it clear that no family in South Africa should be allowed to operate a private business in the ports of entry. If this had to happen, it should go through a competitive bidding process. These two principles should be adhered to. It was not wrong to have VIP terminals, but these should first have been agreed to. He was not raising the issue. No one should come to a government facility and establish a business on the facility and ask the government to listen to him or her. The government had laws. Those laws ought to be respected. Laws stated that these kinds of businesses should be subject to competitive bidding. In sum, the judgment had been appealed against because the DHA believed that it was flawed. Nowhere in the judgment had the judge said that the Minister had lied under oath and breached the Constitution.
On the naturalisation of Guptas, the Minister stressed that the DG had appeared before the Committee twice, and he had extensively explained this matter. It was good to clarify the matter for better understanding, for engagement with Members. He would be referring to a Gupta family which had five members.
There was Ms Angoori Gupta, who had applied for a permanent resident permit (PRP) in 2003 and had applied for naturalisation in 2013. It ought to be understood that she had applied for naturalisation after 10 years. The application had been rejected on the ground that she had been out of the country for more than 90 days within the last five years.
Four of the Guptas had got their PRPs during the third administration. There was Mr Ajay Gupta, who got his PRP in 2008 and had applied for naturalisation in 2013. When he applied, he had met all the legislative requirements. His application had been rejected on the ground that he had not applied individually, since the Guptas had applied as a family. In the first instance, they could have been granted naturalisation if they had all complied with the legislation requirements.
Mr Shevani Gupta had been granted a PRP in 2012 and applied for naturalisation in 2013. The application was rejected on the basis that the five years requirement was not met.
Mr Kamal Singhala Gupta was granted a PRP in 2008 and applied for citizenship in 2013. He complied with legislative requirements, but the application was rejected on technicalities, the reason being that he had not applied alone, and that it was rather a family application.
Ms Surya Gupta was granted a PRP in 2008 and had applied for naturalisation in 2013. She was eligible. However, it was as a family application, and not an individual application. For this reason, she did not qualify.
Three Guptas qualified, and two of them were not qualified. Since they had applied as a family, they (all Guptas) did not qualify, as some of them were not meeting certain requirements. It was important to set out this process. Moreover, this background was provided to demonstrate that there was no malice on the part of the DHA in the decisions it had taken.
The Minister said that legislation provided that should a person apply for any documents, an application should be directed to the Department and not to the Minister’s office. What could be directed to office of the Minister were those applications appealing against decisions taken by the Department when and if applicants were not satisfied with the decision taken or the service provided by the Department. In certain instances, an application might be approved by the Department, but still needed the approval of the Minister. Such cases included naturalisation applications. Beyond that, applications were not directed to the Minister.
What happened if an applicant appealed to the Minister? Worth noting, firstly, was that the Minister did not have the capacity to consider an application due to the absence of an applicant’s documentation in his office. Secondly, the Minister was not empowered by law to run administration. For these reasons, an appeal was therefore forwarded to the relevant official with an instruction to re-look at the application, along with the appeal, and advise the Minister if there was any basis either to uphold the decision initially made or to set it aside. The official was requested to consider whether there was a new fact provided in the appeal that could support re-consideration of the initial decision. It was important to adhere to these principles and not to compromise them. There was no way the Minister would be aware of documents submitted for initial application. He had no capacity to sit with the appeal board to look into appeals of applicants. Appeals were referred back to the Department for it to consider on the basis of all documents submitted. These were documents initially submitted, together with documents submitted with a mind to appeal against the decision of the Department.
The salient question was whether these documents, considered together, warranted the turning down of the previous decision. A memorandum would be prepared to be submitted to the Minister, advising him whether to uphold the initial decision or to set it aside. There were many such cases that were sitting in the office of the Minister. The Gupta issue was no different to appeals which the office of the Minister had dealt with, or was dealing with. Accordingly, there was no special interest in the case. There were many applications that were approved the same year, and there was a report on these decisions that had been submitted.
The DG had acknowledged that the Department, from 2009 to 2015, had not submitted a report on naturalisation to Parliament as contemplated by law, or as an administrative exercise. Prior to 2015, the DHA had not decided to conduct ceremonies of naturalisation, which lifted the veil of secrecy to the naturalisation of new South Africans and which made them take an allegiance to the country and make their naturalisation a public matter. These processes were now in practice. There were two cases pending -- one from Gauteng and another from Kwazulu-Natal. As he had indicated, an application for naturalisation was attended to on the basis of existing legislation. Appeals were also handled on the basis of existing legislation. The legislation provided safeguards to be taken into consideration. The legislation provided that should a person apply (not only for naturalisation, but also for a permanent resident permit, refugee status, or other document) and the Department rejected an application, an applicant had the right to appeal against the decision. If on appeal, an initial decision was upheld, the applicant had the right to approach a court of law.
There were many cases where applicants had approached the court, not because the decision had been rejected or an appeal was not successful, but because the Department had delayed in finalising an application. In many instances, the court had been approached because the Department had not taken a decision timeously and the court had compelled the Department to take a decision. The Department could not just reject an application on the basis that officials might be thinking that, perhaps, in future they would be accused of committing a crime. Neither should the Department act arbitrarily in terms of all submitted applications. Rather, each and every application was considered on its own merit. Any appeal to the Minister was directed to the Department.
There were three options with respect to an appeal. Essentially, the Department would ask additional information to support an appeal. Secondly, the Department would advise the Minister that they upheld the initial decision. Thirdly, the Department would advise the Minister to overturn the initial decision on the basis of new facts provided to the Department. Regardless of the fact that an appeal was directed to the Minister, an appeal was handled by the Department, and the Minister did not get involved in any manner whatsoever. The appeal was handled between the Department and an applicant. That should be seriously noted. They would come to the Minister when the decision had been taken and the Minister would do what was required in terms of the law as an executive authority of the Department.
He stressed that there was two safeguards in law that Members should bear in mind: The first safeguard was that once an applicant had been found guilty, in future the Department ought to withdraw the permanent resident permit or citizenship. Secondly, an applicant ought to be found guilty by a court of law. This was the reason why the Department could not act arbitrarily and withdraw the citizenship of Janusz Walus. The Department had waited for the decision of the court, including appeals. His appeals were rejected. The Department had also been asked to withdraw the citizenships of Radovan Krejcir and Paul O’Sullivan. In each and every case, the Department took the position that no matter how it felt offended, it should wait for the decision of the court. Likewise, people were asking the withdrawal of citizenship and permanent resident permit on the basis of their perceptions and opinions, to which they were entitled. However, the matter would be handled in a proper way.
Secondly, once an individual was granted a citizenship, but his country of origin did not recognise dual citizenship; the Department asked the applicant to renounce his original citizenship. The Department did not take a decision on behalf of an applicant on whether to renounce the original citizenship or not. That was why, in the Gupta case, when the Department turned down the initial application, the Guptas were also advised that they had to renounce the Indian citizenship first. This advice illustrated that there was no malice in the granting of citizenship to the Guptas, because if there was such a thing, citizenship could have been granted without following the law. In response to their application, they were advised that their application was being considered, but the Department was putting it to them to denounce their citizenship of origin, which two of the five members refused to do. Their refusal served as the basis not to grant them citizenship.
Mr Ajay Gupta was therefore not granted citizenship, as he had not denounced his Indian citizenship. Member of the Committee should be mindful that, due to non-renunciation of citizenship, no citizenship status could be accorded to Mr Atul Gupta also. The Department did not move mountains for them. The Department had indicated to them what the law said and what requirements they had to meet. No one could be a South African citizen if they did not renounce their citizenship, as contemplated by the law of an applicant’s country of origin.
In the Minister’s opinion, matters that Committee had asked to know about had been clarified by the DG and now the Minister. He would be happy to respond to any question that Members had. They should know that Ajay and Atul Gupta were not South African citizens. Should they be found to have committed a crime in South Africa, the Department would act accordingly and withdrawal their permanent resident permits. If the one found guilty had citizenship, the citizenship would be withdrawn. It had to be noted that the withdrawal would take a place after they were found guilty and the sentence had been served. This was a prerequisite, because it was about avoiding the situation where people would skip the country and turn around to say: we are not your citizens, and therefore you have no jurisdiction over us. Inasmuch as Janusz Walus was guilty of a crime committed back in 1993, the Department took a decision to withdraw his citizenship only in 2016, if he was not mistaken. Prior to that, the Department did not want to take away his citizenship, because when he applied for parole he could say: “release me to go home because I am not a South African citizen, but a Polish citizen.” The Department allowed the processes to run their course.
The question that could arise related to two issues he wished to comment on. The first was the letter published by a newspaper which, to his surprise, he had been asked three times whether he recalled it. He had responding that he did not recall that letter. He had checked with the DG, and found that the date that was on the leaked and published letter had been tampered with, and that the letter had originated in their political party. The letter in the Department contained a different date. He submitted that this should be called dishonest -- that the letter put the Department into disrepute, and that it discredited the work of the Department. It was unfortunate that the Department had to deal with sensitive issues.
The second issue he wanted to comment on was that it was not easy for the Department to know in 2013 that an individual would be engaged in a criminal activity in 2018 and, on that basis, the Guptas should have been denied citizenship. In the same fashion, Janusz Walus had been granted citizenship, as no one knew that he was coming here to commit heinous crimes against people in South Africa. In the same way Radovan Krecjir had been granted permanent residence, as no one knew that he was going to be involved in criminal conduct. In the same manner, various stakeholders went to them to seek funding. No one could tell them that they should have known what was going to happen in the future, and for that reason they should not have approached them.
He thought that at all times the DHA should act on the basis of the facts before it, and nothing else. The Department had a right, when the need arose. to review its decision. That was why every month, the Minister signed submissions to his office to withdraw certain permits, including permanent resident permits and citizenships. Submissions were made in the memo after these individuals were found guilty by the court.
The Chairperson thanked the Minister for his clarification, and said he hoped that the clarification would put an end to political games on matter. He had heard the Minister bringing up the name of Atul Gupta, who was not under consideration for the current situation. Despite the perception the nation had about the Gupta family, it was only Ajay Gupta who was problematic. All other four members were innocent and independent from Ajay Gupta. They included the grand-mother, wife and two children. The others were not seen to be creating problems.
Note should be taken that all Members had taken an oath and pledged to uphold the Constitution and laws. When Members considered matters, they should do so in accordance with the Constitution and other laws. What happened outside with the people on the street was that they did not follow protocols or laws; they were just activists. Members were different, because they had told the Chief Justice that they would uphold the Constitution and laws of the country.
Mr Hoosen reminded the Chairperson that he was committed to upholding the Constitution and other laws, and that he was speaking on behalf of those he was representing. The Chairperson should not be preaching about upholding the Constitution.
Arising on point of order, Mr Gumede stressed that he was representing the ANC, whereas the Chairperson was representing the Speaker of Parliament. He commented that Mr Hoosen, as a lawyer, should have known this better.
Mr Hoosen read out the passages in the judgment which confirmed that the court had found the Minister to have lied under oath and thus breached the Constitution. He submitted that when then the DG had appeared before the Committee the previous week and had handed in further documents, it had transpired that not all the documents that were submitted to the Minister had been verified. The authenticity of the documents was problematic. He asked whether the Minister was satisfied with the whole process of naturalisation.
He said it had transpired that the status of people employed by the Guptas was incorrect. He believed that people – when appealing against decisions – made fancy arguments in their applications which came before officials, and he asked the Minister whether he had authorised an investigation into the claims made by the Guptas in their appeal. The legislation required considering whether an applicant was a person of good character, and he asked the Minister whether he was satisfied that members of the Gupta family were of good character. The public perception was that the Minister was a friend of the Guptas, and therefore the friendship had influenced his decision to naturalise the Guptas. Had he met with the Guptas during their application for naturalisation?
Ms Raphuti thanked the Minister for providing clarity on the matter. She asked whether “Mama Gupta” and others were innocent and had nothing to do with the current situation. Was the Minister doing an investigation into the doctored letter? If the letter could be falsified, it meant that South Africa was not protected, and this was scary. How could a person falsify a letter and run to the media for the purpose of implicating the Department? This was a sign of how people were hungry for power and wanted power at all costs. It showed that they were working with anonymous crooks. Whoever did this was an anonymous witch.
Ms Hlophe said she would not entertain the issues raised by her colleague, but would rather put questions directly to the Minister. She asked him whether he was aware that Mr Cedric Frolick, the National Assembly House Chairperson, had written a letter to the Chairpersons of Committees to establish a committee of inquiry to investigate the leaked email, as well as the early naturalisation of Guptas.
Speaking on a point of order, the Chairperson said that Ms Hlophe was misleading the Committee through a misrepresentation of the facts. In putting questions to the Minister, she should avoid misrepresentation of the facts because the letter from Mr Frolick had been short, precise and straight to the point. Nothing like the establishment of an inquiry into the Guptas had been mentioned. Instead, the letter referred to investigating the manner in which citizenship was granted generally. He read letter out.
Ms Hlophe asked whether the Minister was aware of that letter. She said that the Department had been supposed play its role in clarifying how the Guptas had been naturalised on the basis of facts. Facts could be drawn from documents, and that was the reason why documents had been requested. Documents could have assisted the Committee to determine how the corrupt family was naturalised.
There was contradiction in the statements of the DG and the Minister. When the DG appeared before the Committee, he had indicated that the Gupta family had written directly to the Minister when they appealed against the Department’s decision. The Minister was saying that they had written to the Department, and not to the Minister. There was an official in the Department called Hlathwayo, who had written a rejection letter to the Gupta family. In the letter, Hlathwayo had advised the Gupta family to re-apply in December 2015. Why should the Department advise them to re-apply? She said that she stood by the EFF letter leaked to the media, stating that it was authentic. She added that she had not been protected by the Chairperson when she was insulted as a “witch.”
The Chairperson said that Ms Raphuti’s statement had not been directed to her personally, but to the person who had doctored the letter and leaked it to the Committee, or any other person in the office who might falsify a document. If an insult had been directed to her, he would have intervened.
Ms Hlophe continued that she had heard the Minister talking about the utilisation of legislation, implying that the he followed procedures and due process. However, there was a reluctance to submit the documents to the Committee in order to justify that this family was doing business in the country. It had also transpired that the documents brought forward had not been verified. Members of the Opposition had taken the time to go and verify information. However, they had not been able to reach the schools referred to, on the phone. She doubted whether these schools existed. Their suspicion with regard to the documents was shared by Ms Dambuza, an ANC member, who had raised the same concern at the previous meeting. At this meeting, she (Ms Hlophe) had raised concern over the content of the documents, which she had felt were just a copy and paste job. The information regarding the figures looked the same. There had been concerns over the price of 54 pairs of shoes and the number of people who were fed. On the face of it, these documents looked inflated. Prior to granting naturalisation, did the Department verify whether the documents were genuine or not?
There was a new development on the Guptas. The Minister had been invited to brief the Portfolio Committee on Public Enterprises, but he had not gone there to brief it, and had rather chosen to brief this Committee unannounced. She did not want to know why he did not go to brief the Committee on Public Enterprises because, perhaps, he had good reasons. What was important to know was the view of the Minister on the revocation of the Guptas’ citizenship. Did the Minister not think it was time to revoke their citizenship?
Mr Gumede commented that the discussion should continue, bearing in mind that the DG was an accounting officer of the Department. This ought to be clear -- it was the DG who was responsible for technical and administrative work. The Minister had alluded to this. The Minister had never overridden the decision of the DG. If the Minister had done so, he ought to account. If the Minister did not, there was nothing to answer to. The Department had indicated that they had taken the decision on the basis of facts, and they had furnished the Committee with documents. The evidence was contained in these documents, which all political parties had received to identify their authenticity. This exercise should continue, irrespective of the Minister’s brief.
The second issue was the question on the requirement of good character. Members should look at the time of the application. It had been stated that the application was made in 2013, when it was impossible to foresee what their character would be in the future. Furthermore, Members should bear in mind that no one had been found guilty by a court of law. The ANC position was clear -- if one was found guilty, his or her citizenship or PRP should be revoked. The ANC Members were satisfied with the justification of the Minister. They were left with a duty to verify the documents that were handed to the Committee on request. All Members knew that the Gupta family had invested money in the country and had many companies, including SAHARA. By and large, the ANC members believed the Minister that at the time of application, there was no indication of bad character that could have stopped the Department from granting them citizenship.
Dr H Mateme (ANC) agreed with Mr Gumede’s comment on the question of character. A bad character could be identified only when a law was infringed. It was also correct to say that the bad character could be confirmed by the court of law. Another point was that those people who said to be corrupt, were not citizens of the country. They were not naturalised. Actually, it was the one individual, who had a PRP and not a citizenship, who was problematic. She asked the Minister to make a thorough investigation into the tampered letter. What could be the rationale behind the tampering? The overwhelming public perceptions about the Gupta family had started with that letter. This ought to be looked into, to clarify the matter. The public wanted to know. A decision could not be taken on the basis of public perceptions. Any administrative decision had to be taken on the basis of facts.
The Chairperson said that at the meeting of 27 June 2017, it had been agreed that the EFF should bring an original letter. If this was not done, some process would surely get stalled. There was a letter in existence, and the only problem was the date on it. There were two possibilities -- either the Department or the EFF had the wrong letter. In whose hands was the correct letter?
It had been indicated that the Gupta family had five members, and Mr Ajay Gupta was the only one who was allegedly corrupt. He reminded Ms Hlophe that the rules of Parliament did not allow her to refer to the other four as criminals when they were not. Actually, the rules did not allow Members to “badmouth” people outside the House, who could not respond to allegations levelled against them.
At the previous meeting, Members had agreed that the Department had done all they had asked them to do. They had also agreed that they would expect the Minister to speak on political aspects and not technically administrative aspects. On issue of the price of shoes, it was not a question that should be answered by the Minister, as documents had provided them with an average cost. It was rather the duty of Members to verify these issues through the process that the Committee had set out. The Chairperson invited the Minister to respond.
Director General’s response
The Minister said that the DG would be responding on technical and administrative matters.
Mr Apleni said that he had appeared twice before the Committee and had told Members the truth on the basis of facts. He was in no way covering the Minister. He had explained the process of naturalisation and what had happened in the case of the Guptas, from their initial application until their appeal against the decision. He explained that despite the fact that a letter ought to be addressed to the Minister when appealing a decision, it was not the Minister who should consider the appeal. There was a centre in the Department that received all communications, and which directed those communications to the people responsible with dealing with those particular matters. If an appeal was directed to the Minister, it would be technically assumed that the matter was being considered by the Minister. An appeal was directed to the person who dealt with an initial application to consider whether there were new grounds and thus make the recommendation to the Minister whether to approve an appeal or to uphold the previous decision.
In law, it was the duty of the Department to advise a client the reasons on which the Department’s decision was based when rejecting an application, and to advise the client on the options available to receive the services he or she was applying for. If the Department failed to advise the client and the client approached the court, the Department would pay heavily, as it would be found guilty of violating the rights of the client. It was the DHA’s duty to direct and advise a client on the requirements to have access to a particular service.
Mr Hoosen said that at the 27 June 2017 meeting, the DG had said that the Guptas employed 7 000 employees. The number had been found to be bigger than that.
Mr Apleni responded that when Guptas initially applied, they had supported their application with certain facts. They had stated in the letter that they employed more than 7 000 employees. When the Department investigated this, they had found that the number of employees was 16 000. A problem could have arisen if the figure had gone below 7 000 employees. Secondly, the Gupta’s Oakbay was recognised as being established in South Africa, because it was listed on the Johannesburg Stock Exchange (JSE). The granting of early naturalisation was not a problem if an applicant met the requirements. The same approach had been applied to an applicant from Coca-Cola. The DHA could not investigate every claim made. It could approach Coca-Cola to ascertain certain information, but it would not go beyond Coca-Cola to conduct an investigation. The same had applied to Oakbay. The Department would be satisfied by the fact that the JSE had confirmed that Oakbay was listed or registered by them.
The Minister remarked that Members from Opposition parties were making allegations without substance that the ANC did not abide by the Constitution. He was satisfied with the briefing on the basis of the factual information he had been given. Citizenship had not been conferred on all the Guptas because some of them had not met all the requirements. On the question concerning good character, he gave the example that he would assume that all individuals in the Chamber were of good character until some facts would be revealed to prove to him otherwise.
There had been no step that had been skipped in the naturalisation application process. The due process had been followed. Here and there, people knew him. There were people who were even requesting assistance via social media. In responding to them, he would ask them to follow the normal process. He would, for example, ask them to clarify the assistance they were looking for via emails addressed to him. He was asking them to do this, fully aware that the Minister’s email was not personal but administrative. There were people in his office who read these emails and directed queries to where they would be attended to.
On the naturalisation process of Gupta’s family, he reiterated that one should look at the concept of naturalisation, especially its requirements. He had indicated that one member of the Gupta family had been disqualified on the grounds that she was out of the country for more than 90 days within the last five years. Another had been disqualified on basis that he had not been in possession of a PRP for five years. What the Department had done was to advise them when they should re-apply. In the process, a letter had been leaked to the media. The Guptas’ letter to the Minister had been to request a waiver. The whole process of naturalisation of the Guptas was handled by the Department, and not the Minister. The Minister had been advised on the decision taken with regard to who qualified and who did not qualify. Some of Guptas had not wanted to relinquish their original citizenship, for example.
The Minister said that the letter claimed to be from Hlathwayo was under investigation to ascertain its authenticity. Notwithstanding the letter, the Department was satisfied that the Guptas were doing business in the country. There was room to scrutinise their applications and review the decision made. However, the right decision would be taken following the expression of the court on the matter.
On the question of meeting with the Guptas, the Minister responded that he had in no way influenced the decision taken on naturalisation. All applications, be they initial or on appeal, were received and considered by the Department. There were no special favours.
Ms Raphuti asked whether a person who was appointed as Minister or Deputy Minister was barred from speaking to people, or from having friends. As a government official, she talked to many people, including those she did not know where they came from, or what they did. Why should officials be scrutinised, examined and cross-examined if they ought to speak to, listen and hear out members of the public?
Ms Hlophe asked the Minister whether he was going to respond to the EFF letter. She added that the EFF would take the Guptas to court so that they could be proved to be criminals. The EFF believed that the Guptas were taking and stealing money that could have empowered the people.
Mr Hoosen said that the question whether the Minister had met the Guptas had not been answered. How could the naturalisation process be finalised within a period of two months?
The Chairperson said it was the duty of officials to speak to all people – right and left.
The Minister reminded Members that the issue of corruption involved Mr Ajay Gupta, who was not a citizen. He simply had a PRP. Accordingly, Members should not ask him to revoke a citizenship which he did not have.
He said he had not received a letter from the EFF, and would respond to it once he received it.
The Minister stressed that the Department worked on the basis of the principle that a person was presumed to be innocent until proven guilty. Once individuals were found guilty, the law stated that the documents granted to them should be revoked, whether it was a citizenship or a PRP. The Department would always apply the law without fear and favour.
On meeting the Guptas, the Minister said that he had never met with the Guptas to discuss their naturalisation. The application for naturalisation had come in 2013, was rejected in 2014, and they had re-applied in 2015. It was self-evident that the application process took a period of two years due to the technical administrative matters involved. The application had not been individual, and was technically dealt with as a family application. The application was rejected because all members of the family were not complying with the legal requirements. Some of them had met these requirements, and this was what was considered on appeal.
The Minister requested a copy of the judgment from Mr Hoosen had read out, which stated that the Minister had lied under oath.
The Chairperson thanked the Minister for his clarity, and said that it was a sine qua non for the Department to follow and apply the law. With the facts at their disposal, it was a step closer to concluding the matter and reporting back to the National Assembly as instructed by the House Chairperson of Committees. The Committee would in due course meet to consider the full range of facts and information as presented by the Department through the documents. This would result in a report with comprehensive recommendations to the National Assembly. While it had taken time to reach this point, he appreciated all the assistance the Committee had received from the DG and the Minister in clarifying the Gupta matter.
The Chairperson excused the Minister and the Deputy Minister, as well as the DG.
Independent Electoral Commission (IEC) performance report
Mr Sy Mamabolo, Chief Executive Officer, IEC, said the Commission’s performance for the second and third quarters of the 2017/18 financial year had been achieved against the backdrop of the following environment:
- The urgent need to acquire and record the addresses of voters on the voters roll, which included an online address-harvesting campaign, and preparations for the address-harvesting weekend scheduled for 10-11 March;
- A highly contested and fractious political environment, which resulted in an increase in the number of by-elections; and
- Continued economic difficulties and constrained fiscal conditions.
These factors had had a huge impact on the financial and human resources of the IEC.
He reported that the number of registered voters as of 30 November 2017 was 25 899 778. Those registered with complete addresses were 19 418 210, representing 75% of the registered voter population. With regard to the address-harvesting weekend, the number of voting stations to open was 22 606, and 73 095 staff had been recruited. The cost was R230 million, which had been allocated to venue hire, recruitment and the training of staff, materials and transport. The cost included a communications and advertising campaign to promote the weekend and the online facility.
Mr Mamabolo provided Members with by-election statistics and an update on party funding legislation. On the latter, he said that the Political Party Funding Bill had been approved by the ad hoc committee in November 2017 and tabled to the National Assembly for debate in December. It was expected that the legislation would be approved in time for implementation by June 2018.
In quarter two, certain targets had not been achieved. In the administration programme, some targets were not achieved due to the postponement of the September Commission meeting to 6 October, due to the international travel obligations of some commissioners. The audit committee meeting that took place later than originally planned was cited as a reason of non-achievement of the quarterly internal audit progress report. The targeted number of short courses to be attended by staff was not achieved. In the outreach programme, the number of civic and democracy education events held per annum was not achieved. The projected expenditure for quarter two of 2017/18 was R255 903 000, but actual expenditure had been R262 252 000. There had been under-spending in the administration programme, whereas over-spending was reported in the electoral operations and outreach programmes.
In quarter three, the targets relating to the number of quarterly internal audit progress reports per annum and the number of short courses to be attended by staff were not achieved. The average number of calendar days in which elections were to be conducted from the date of a vacancy was not achieved. Also not achieved was the number of civic and democracy education events held. The projected budget expenditure was R397 419 000, and actual expenditure stood at R362 748 000. While under-spending was reported for administration and electoral operations programmes, there had been overspending on outreach programmes.
Mr Mamabolo reported on unfunded projects. The information communication technology (ICT) platform upgrade needed R61 million in 2017/18, and would need R89 million in 2018/19 – a combined total of R150 million. The budget for address-harvesting was R180 million and R230 million for 2016/17 and 2017/18, respectively, which was a total of R410 million. He added that the new registration device was partially funded for the 2018/19 fiscal year. A start-up cost of approximately R30 million had been allocated for the new mandate, as per the Party Funding Bill.
The Chairperson left, and Mr Gumede took over to chair the meeting.
Mr A Figlan (DA) raised concerns over the by-elections, and asked why the internal audit target was not being achieved.
Ms Hlophe said the presentation had not touched much on the funding of political parties, and asked whether they were to be funded. Was the funding at a standstill, given that the Party Funding Bill had been referred back to the Chief Whips’ Forum following the request from the DA? She sought clarity on clause 10(1) of the Bill, saying that the ad hoc committee had given them its own perspective, and the IEC had given them theirs. The IEC was of the view that a member of a political party could receive a donation from an individual or entity authorised by that party, and the ad hoc committee had given another version, stating that no person or entity may deliver a donation to a member of a political party. There was a need to clarify this provision.
She asked for further clarity on residential addresses, as there was a court ruling on this matter. At the previous meeting, the IEC had stressed that no one was going to be turned away on a voting day. There would be a form that people would fill in. If the court said that everyone should produce an address and that such an address should be verified, would allowing people to vote without an address be in conflict with the court’s ruling?
Each and every time there was voter registration, the IEC spent too much. Why was this so? This weekend, the IEC would engage in the first registration, and she asked how many people would be registered prior to the 2019 elections. Could the IEC come clean and explain about temporary structures, because in 2016 the temporary structures were in a bad condition? Last time, the IEC had defended itself that it had been misled by the presiding officer. Did it verify these temporary structures? What had been done in 2016 should not be repeated. Where would these temporary structures be erected?
At the previous meeting, she had asked about an employee of the IEC who was a councillor and employed before the five-year period had elapsed. Did the IEC have an answer to that? What were the reasons of under-spending? On the issue of address-harvesting, they had advised the IEC not to challenge this in court. In South Africa, 80% of the population were using cellphones, and cellphones could not be bought if one did not furnish one’s physical address. Did the IEC check with companies like MTN, Vodacom and Cell C, or did they check with Statistics South Africa and the DHA? She feared that, not all people would be registered for the coming 2019 elections. Had the IEC thought about combining elections?
Ms Raphuti asked how long it took to train staff, and whether they were being awarded certificates. Were staff recruited on a temporary basis? Were records of temporary staff kept so that they could be used in the future?
The Chairperson asked whether the IEC’s cashflow problem had been resolved. If not, there would be a problem running the institution. Regarding addresses, he asked whether there was an agreement with all the political parties on the position to be taken, in order to avoid problems after elections.
Mr Glen Mashini, Chairperson: IEC, said that at the previous meeting, the issue of budget had been raised and Members had unanimously agreed that the IEC should communicate in writing what the funding-related challenges were. The Committee could have assisted with how the funding challenges should be resolved from a political point of view. The political decision-making had not mitigated the problem of funding. Due to financial constraints, most of targets were technically those activities that would keep the organisation running. The IEC had reported this situation to the Committee in time. The National Treasury had not come through, and a deadline of June 2018 had been set by the Constitutional Court. Of concern was that they could not go to the court and state that they had not got the funds to implement its decision. The IEC had therefore had to review its activities and re-prioritise certain activities. However, the training had been effected. The IEC was concerned that there would be a permanent impact on the work that had not been fully completed. For the last time, the IEC was asking for funds through the Committee, and believed that the Committee would intervene.
Mr Terry Tselane, Vice Chairperson: IEC said that the decision of the constitutional court was final, and there was no way the IEC could go and challenge the decision. If the IEC had given the impression that the court ruling could be challenged, that should be considered an error, as no one had challenged the decision of the Constitutional Court.
In order to resolve the address issue, the IEC had cooperated with all cellphone companies and Statistics South Africa, the DHA and municipalities. The problem with these companies and entities was that they each had their own approaches. For example, people were buying phones when they were in Cape Town and sent them to their beloved ones in Kwazulu-Natal or the Eastern Cape. This information could not be relied on.
A physical address was not a prerequisite to vote. This was an element emphasised by the Constitutional Court. The issue of addresses would be resolved through filling in forms that would be provided. Physical addresses were a prerequisite for by-elections, and not for national elections. One could vote for his/her choice for President, wherever he or she was. What was important was to appear on the voters’ roll, and the filled form would indicate that the voter had an address. The form would help to address the gaps in the register.
Mr Mamabolo referred to the funding of political parties, and said there was a Bill that was being considered and which had not yet come into effect. He commented that a member of political party could receive a donation. There was one weekend left for registering voters and voters’ addresses, and the IEC did not have the necessary infrastructure, and was relying instead on the existing infrastructure in the communities. Some temporary structures were sub-standard. It was also difficult to mount tents, because they could be blown about by the wind. Combined elections had been considered and the possible implications had been researched. On the question of training, he said that training was being accredited.
Government Printing Works (GPW) performance report
Ms Thandi Moyo, Acting CEO: GPW, said that in the second quarter, one of the 14 targets had not been achieved. It had involved training in the human resources programme, and had been only 46% achieved instead of 50%. The total actual expenditure in the quarter had been R148 572 000.
In the third quarter, two of the 16 targets, which related to the human resources and financial service programmes, had not been achieved. Training interventions were 54%achieved, as opposed to the set target of 75%. The target for operating costs as a percentage of revenue would be achieved by 30 March 2018. The total actual expenditure for the quarter was R147 279 000. Revenue had been under-collected due to a reduction in smart ID card sales and the number of Government Gazette’s issued, as they were demand-driven by the client.
The Chairperson commented that the world was moving from hardcopies to soft copies, and asked when Government Gazette would be published electronically in the Western Cape.
Ms Hlophe asked when the GPW was going to become a state-owned company. On the printing of passports, she commented that in the United Kingdom it took four months to print them, whereas it took two weeks in South Africa.
Ms Raphuti asked when a CEO would be appointed, because Ms Moyo could not always act as the CEO.
Ms Moyo responded that Government Gazettes were published online and in hard copies. The GPW had subscribers for hard copies and online publications. Subscribers could access the online gazette through their passwords. Regarding the Western Cape, the GPW was engaging with them to see how this could be resolved. There had been a discussion with the Western Cape government to ensure that their gazette could be published electronically. When the Security Printers Bill came in, the government would identify all critical or security prioritised documents that ought to be printed by the GPW. Now, the GPW had to convince them that it could just print for them.
Ms Moyo said that a request had made, but had not been considered by the Cabinet, for the GPW to become a state-owned company. She did not see the GPW becoming a state-owned company in the next five years, unless something important came up. On the question of printing for other countries, the problem was that many countries preferred to print overseas, and some had entered into contracts which they could not easily get out of. They were monitoring those contracts that would be ending soon to see whether if they could draw them in. Swaziland was willing to come in and conclude a contract. The GPW was marketing itself.
Mr Thulani Mavuso, DDG: Institutional Printing and Support, DHA, said that the applications for identity documents and passports were dealt with manually. The DHA was considering whether these documents could be applied for online. The volume of documents that needed to be printed was quite high, and this could be avoided with if applications could be made online. There was also the problem of the cost, because documents could not be printed for free.
The Chairperson said that something ought to be done to restore South Africa’s reputation and to ensure the integrity of the GPW. Security of documents should be high on the agenda, so the GPW should be subjected to a vetting process. It should work to avoid an impression that either the GPW or South Africa was corrupt.
The meeting was adjourned.
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