Committee Report available on 13 October 2020
The Committee Report on Beitbridge Oversight Visit was presented to the Committee and adopted. The three parliamentary committees conducting the oversight visit included this Portfolio Committee, Portfolio Committee on Home Affairs and Standing Committee on Public on Public Accounts (SCOPA). The report included inputs from the Special Investigating Unit (SIU) detailing irregular activity by Public Works when handling the Beitbridge border fence project.
Members strongly held that the Committee Report did not stress enough the involvement of the Minister in not upholding the Constitution and that it ought to be made clear. It was important to hold the Minister accountable.
Members asked for clarity if soldiers are still policing the border fence; who would be liable for repairs of the substandard fence; the role of other officials in the decision-making. Members who had visited the site expressed disbelief at the condition of the border fence and how Zimbabwean civilians seemed to have been waiting for the Committee to leave, so that they could cross.
It was announced that the Department of Public Works and Infrastructure (DPWI) had sent the Expropriation Bill to Cabinet for approval and will shortly be tabled in Parliament. The Committee oversight visit to the Barrier Wall Project at the Kosi Bay border between South Africa and Mozambique would take place from 9 to 11 October 2020.
The Chairperson invited Members to make comments or amendments to the Committee Report on Beitbridge Oversight Visit which took place between 4 to 6 September 2020. [The first ten minutes of the meeting were not captured by the Zoom link and a new link was issued].
Mr W Thring (ACDP) asked for confirmation of the exact date of the Minister’s meeting with the Department of Defence and Agri SA. When visiting the border site, the fence was 1.8 instead of 2.2 metres. The fence was suited more for domestic dwelling and it was not a border fence. He asked what instructions the Minister had given at that meeting. Moreover, what monitoring of that instruction was conducted. He referred to consequence management and asked if there were criminal charges against any of the officials involved. The fact that there were citizens of Zimbabwe waiting to cross the border during the site viewing, was of concern for all Committee Members who attended. Is the border military aggressively attending to this by making arrests of civilians seeking to cross illegally?
The Chairperson pointed to the fact that the Minister is not present. Members should note that questions to the Minister would perhaps be answered in the National Assembly.
Ms S Graham (DA) commended the Committee on a well-written report. She corrected some points in the report. On page four the R37 million price charged was R17 million more than the market-related price. The clearance certificate signed on 10 March 2020 was for a 40 kilometre fence. On page five, it should read that a payment of R21 million was done and then the Minister stopped further payment. She asked for the name of the site manager. The principal agent did not receive a percentage of the R37m contract. It was a separate amount of a further R3.2m. In the report, 'human failure' is the term used to explain the overpayment to the contractor. Human failure indicates an error. However, specific decisions were taken; it was not just a mistake. Blame cannot be assigned to human failure. People ignored the protocols and thus there was an overpayment.
The Committee Secretary, Ms Nola Matinise, replied that the term ‘human failure’ was used by DPWI, with the Acting Director-General stating that it was both human failure and non-compliance during the site visit briefing. No one is can change this part of the report as it speaks to the inputs made by DPWI. Perhaps the 14 people implicated should be made clearer in the report.
Committee Researcher, Ms Inez Stephney, noted that the reporting is being done word-for-word from the meeting with DPWI and changes should not be made. These are inputs from the Department.
The Chairperson responded that the public and media know who the 14 personnel are who have disciplinary charges against them. Therefore, corrections should remain grammatical.
Ms Graham said under the DPWI inputs, a clause reads “The appointment of the Principal Agent was found to be irregular". She corrected this saying the principal agent was appointed as an afterthought. It was appointed two days after the contractor had been appointed. A principal agent is responsible for assisting the contractor with the bill of quantities. In this case the contractor did its own bill of quantities.
Ms A Siwisa (EFF) suggested that Ms Graham’s points be added to the Committee Findings section, as again the DPWI inputs cannot be changed or inaccurately reported.
The Chairperson agreed with Ms Siwisa but noted the point about the principal agent needed correction.
Ms Graham pointed to page seven where the report indicates the fence has been structured for domestic use but it was not initially designed in 2016 for domestic use.
The Committee Secretary noted that the SIU presenter had stated that it had been designed for domestic use. It was meant only for erecting around buildings close to the border.
Mr Shuaib Denyssen, Committee Content Advisor, reminded Members that non-corresponding information was currently their challenge. The Committee was sure that Beitbridge project had two components: the border fence and domestic buildings. The former has always been a 2.2-metre height. The 1.8-metre border fence would be around the buildings. He agreed with the Secretary that it is not known now what the specifications were for this project. The bill of quantities was a grey area because of irregular processes and corruption.
The Chairperson confirmed that the fence specifications were only for the buildings and offices not for the border.
Ms Graham suggested an additional point to the report, that while being briefed on the site – they took pictures of two people waiting to cross over after they had left. Having the police, army and 50 people present was not enough for these two commuters to leave the border site. She noted Recommendation 5.4 about repairs to the fence. The recommendation is seemingly pointless as the Minister had said to SCOPA that no fence will ever be adequate. Drones and better technology would be required. There are people who come from Zimbabwe to get SASSA payments every month for example. Repairs will continue to take place. The 40 kilometres should be reincorporated into the seven kilometres that need to be redone.
Ms Siwisa said that the Minister needs to be held accountable in the Recommendations. According to the Public Finance Management Act (PFMA), a tender for contractors needed to be scheduled. There was not a proper tender and legislation was not followed to ensure everyone gets a fair bid for the tender. The contractors were appointed without the Department knowing if they had expertise. In the Recommendations, the Minister needs to answer why a contractor with expertise in maintenance became a contractor for a border fence. Both the Minister of Defence and the Minister of Public Works had said in a previous address that the fence is not going to be effective. Sensors and drones would have to be used to ensure illegal immigration does not take place. The Recommendations should include that the Minister needs to answer why the fence was erected if later she would say such a fence would not work. There needs to be clarity if the officials are still at work or have been suspended. It can be safely assumed the contractor did not have expertise; the question is how this happened. The PFMA was grossly violated as none of the proper channels were followed. Rendering and procurement needed to be done, but it did not happen in this case.
Mr E Mathebula (ANC) noted that the Committee Report states that the President employed soldiers along the border fence until 20 September. It is October now and the challenges of the border fence are still present. It should be clarified how long the soldiers will be there for or if they have been removed. Secondly, while it can be agreed that there have been irregularities – there remains a reason for the fence itself. There has not been a report on whether another fence will be installed. It has already been said that the fence there was not meant for borders. If a new one will be effected, the report must stipulate when it will take place.
Mr Mathebula referred to the involvement of the Office of the Minister. The Minister’s Office was being briefed from time to time. It is disappointing that the 14 officials have been suspended and are facing criminal charges, yet the Minister has not been included. He rhetorically asked why the SIU did not make a finding about the Minister’s involvement in the Beitbridge border fence. The Director General does cite that the Minister had been involved. This is currently being discussed in the South African courts. Therefore, a report must include whether Minister was involved or not. Corruption is not just about receiving money; it is also about issuing instructions. If this has taken place through the Minister, it needs to be accounted for. No South African citizen should be allowed to bypass the law.
Mr T Mashele (ANC) reminded Members what triggered the oversight visit. This matter was picked up by the media. The Committee held a 4 May 2020 meeting with the Minister on the matter. She dismissed what was reported. An oversight trip was therefore undertaken. Had she acknowledged what was reported, it would not have reached this point. Public Works has the responsibility to ensure borders are safe. There is an understanding of what fence needs to be there. [Mr Mashele's network connection was lost].
Ms M Hicklin (DA) echoed that the Committee Report is well-thought out and superbly written. She was not present at the site visit but was able to gather an assessment from the report. Consequence management for the Minister needs to be included in the Recommendations. There needs to be ongoing cooperation with the Department of Defence. It must be mandatory. DPWI will be responsible for its own duties and the Department of Defence will be responsible for its own – with both seeking to achieve impermeable borders. Various departments who are giving the Committee scant information need to be held accountable. The Committee is reliant on this. The Committee needs to strengthen oversight or else its commitment could amount to nothing. She asked if there is a timeline for consequence management for the 14 officials. If this is not made clear, hardworking taxpayers will have their taxes used for the paid leave of the 14 suspended officials. Disciplinary hearings are two weeks; they should not be expected to take long.
Mr Mashele reconnected and stated that the responsibility lies with the Committee to do oversight on the Minister. In his view, the findings should included that Minister issued illegal instructions and was centrally involved. It is not an accident that the Minister appointed a contractor before specifications were drawn. The first recommendation should state that the Minister should be held liable and accountable for the role she played in Beitbridge. The second recommendation is that the electric fence must be renovated and reconditioned for the safeguarding of the border post. To conclude, justice will not be followed if the Committee is too sweet on the Minister but harsh on the workers. The person who took an oath of office cannot be sidelined. The officials are secondary. Parliament must use its constitutional powers to hold the Minister accountable. On 4 May, the Minister was not responding to what was being said at the committee meeting. In his view she does not take this Portfolio Committee seriously. The Committee should show officials that it is serious about fighting corruption.
Ms S Van Schalkwyk (ANC) echoed the recommendations that have already been made. A key observation that needs to be included is that the original erection of the border fence was supported by the Committee. Its original intention during COVID-19 was to assist in curbing the spread of the virus through the illegal movement of people. Secondly, it is known that National Treasury did its own investigation. Thus, National Treasury's report needs to be looked at to familiarise oneself with its findings and recommendations. It is clear that the contractor appointed to ensure maintenance along the borders takes place – did not happen. A re-appointment of that contactor needs to be looked at. There needs to be continuous communication between the Departments of Home Affairs, Defence and Public Works to ensure there is joint effort and what happened at Beitbridge does not happen again.
Ms L Shabalala (ANC) remarked that the Minister commissioned the fence using the wrong legislation and changed it after two days. This is not excusable. The Minister is also liable for the transgressions.
Ms Shabalala said that the Minister of Defence is mobilizing drones for the South African Defence Force (SANDF). She asked if the Committee could align itself in the Recommendations to implement the drones. A further suggestion was adding a clause about people being employed to monitor the drones. Not as part of a tender but civilians in the area receive the job to work with these. Secondly, the report should include that all the staff in the Minister’s Office be suspended and charged. If the Minister is implicated, she is not supposed to be included in these meetings. She asked how someone who has been reprimanded, can reprimand others. The CFO has not been mentioned as DPWI was instructed not to pay. However, an enabler is part of corruption even if money was not received.
The Chairperson said that the Committee Report has captured the essence of the oversight visit and what was presented by the Department and SIU. The point raised by Ms Graham about the R17 million has now been corrected. The Constitution of the country holds that people cannot come in and out regardless. The border and fence have to be maintained. It was observed that of the two fences, the old one commissioned still looks better than the recently erected one. The materials used are better.
The Chairperson said that Committee members cannot jump to matters dealt with by other Committees. DPWI constructs and maintains government assets. Issues of Zimbabwe must be dealt with by Home Affairs or DIRCO. It can be agreed the fence was necessary when the President declared the state of emergency as a way to curb COVID-19. An emergency procurement was necessary. However, there are regulations for emergency procurement in the PMFA. In this instance, they were not followed and were violated.
The Chairperson acknowledged Mr Mashele was correct; the buck stops with the Minister. The focus cannot only be on the officials. All that has happened under the Minister’s nose has to be accounted for. There were weekly reports by the DG and project manager, clearly these were wrong. In the next meeting, there needs to be a report on how far the consequence management is regarding the border fence. The Committee needs clarification on the number of officials implicated. The SIU draft report showed 14; the number seems to have now been reduced to 13. The Committee needs all the mentioned reports, including that of Treasury. The Committee needs to be this aggressive with corruption and have, in Xhosa, “amehlo we kati abona kude”. Even before the investigation, red flags were immediately raised. Members have done well in being vigilant. Even in other projects, this oversight must take place as Members did with Beitbridge. In the Recommendations and Findings, it must be stipulated that the Minister did not play her role, as she was receiving weekly reports but failed to see that things were not being done. The Accounting Officer was supposed to even write to the Committee when a Minister instructs wrongly. The DG failed to do this.
The Secretary responded to the questions and comments made by Committee members. It had been indicated earlier that the information included was the information as given to the Committee. To Mr Mathebula’s question about soldiers, it is only known at the time of the oversight visit that the deployment of soldiers was up until 30 September. Regarding the Minister needing to held accountable, this will be incorporated into the Findings and Recommendations. All Committee members felt strongly about this. The nature of committee report recommendations is that they are addressed to the Minister. Members will need to apply their minds when drafting the recommendation. Therefore, a new recommendation that speaks about the Minister – not to the Minister – needs to be done to include accurately what Members feel they need to include. To Members requesting the SIU and National Treasury reports given to SCOPA. All of these were in the Committee’s possession even before the oversight visit. They can be revisited. On the 14 officials charged, the Committee Report has written 14 strictly because the SIU report stipulated 14. She noted that the number meant 13 people and the 14th being the company. The Jersey Barrier Wall between KZN and Mozambique will be visited this week. A better scope for how the border should be will be seen.
Ms Graham put forward that she still believes that the recommendation about repairs needs to be looked at. It should be clear who will pay for this. The company should repair these free of charge. A report is needed on whether this is being done and if it will continue as an additional cost to DPWI to keep repairing a fence of substandard quality. It bears noting that the Minister did not bother to respond to the oversight visit, even though she was invited. Nor did she send a member from her Office. Had the ministerial directive not been issued, nobody else would have been to blame. Therefore, the Minister should be held accountable first.
Mr Thring wanted to check if there had been 115 or 122 breaches as reported by SIU. He echoed his colleagues' sentiments of about the Minister being held accountable. The Committee ought to be careful with the language it used if a process still needs to be conducted in finding officials guilty.
Mr Mashele agreed that the language to be used in the report is important. The Committee is only reacting to Beitbridge because it was in the media. Members are disempowered – as a result the media runs ahead of the Committee. The Beitbridge matter goes back before COVID-19 or the media bringing it up.
Ms Shabalala asked who would be closely following the court proceedings. When the Committee Report is published, the court would have had its own record of the Beitbridge matter. There could be an opportunity for discrepancies.
The Chairperson reminded Members that oversight visits are done by the parliamentary committee. It cannot be said that the Minister did not honour the invite; rather her Office is made aware of committee oversight visits by notice.
The Secretary said Mr Thring’s input had been added to the report. When reports are taken to the House, the Minister will be given 30 days to respond. Sometimes this happens. Sometimes it does not. She asked Mr Denyssen to explain how the oversight functions.
Mr Denyssen replied that he did not want to go into detail on how the oversight takes place. It is important that the Minister knows what comes in and goes out of the Committee meetings. It is in the Constitution. He noted that the Chairperson had raised the importance of consequence management. Both the bureaucrats and advisors are included. There must be a recommendation that says an investigation takes place about the Minister’s instruction. The question remains what the instruction was and the consequences thereof. The Committee recommendations are not useful without a time frame and agency or specification of the entity who should be investigating. It should be as far removed as possible from the department as a department cannot investigate its own minister.
Ms Hicks agreed that the Department of Public Works should not handle the Minister’s investigation. The invitation to the Minister to accompany the Committee to Beitbridge was not even acknowledged and this needs to be included in the Report. It shows a disregard on the part of the Minister.
The Chairperson reiterated that there was no obligation on the Minister to acknowledge the invitation. The Minister and her Deputy were made aware and had received the notice for the purposes of information not for them to join the visit. In a similar manner, the Committee could not meet after the next oversight visit and ask again why the Minister did not attend.
The minutes of 26 August 2020 were checked. After reading the resolutions, the secretary asks for input from the Committee.
Ms Graham asked about the reference to Beitbridge as the entire meeting dealt with the Independent Development Trust (IDT).
The Secretary explained that it was necessary to include because SCOPA met on 25 August to discuss Beitbridge and several members of this Committee attended. Hence the need to include this.
The minutes were adopted.
The minutes of 2 September 2020 were discussed. The Chairperson stressed that the Committee had been firm and clear that it does not support the dissolution of IDT. It must not be dissolved but changed. The wording in the minutes makes it seem as though the Committee has given up and given the Minister the go ahead for dissolution. The IDT had to be discussed in a follow up meeting.
The Secretary replied that the Minister has not yet mapped out a plan or disclosed one for IDT.
The minutes were adopted.
• The Committee Secretary said the Department has confirmed that the Expropriation Bill has been sent to Cabinet for approval and will shortly land in Parliament.
• About the strategic planning for the Committee, the House said a position has not yet been taken about strategic planning for all committees therefore the planned October dates will have to be postponed until the House reports back.
• The oversight visit to the Kosi Bay Border Project will take place from 9 -11 October 2020. The Acting DG stated that a broader clearance was done by DTI and thus this is to take place. It was a provincial project however the Department of Public Works confirmed an MOU has been signed. There were complaints about criminal activity taking place here. Both the KZN Premier and the President have visited it. The itinerary starting from King Shaka Airport was outlined.
The Chairperson said the Committee would appreciate the Expropriation Bill is with Cabinet and will soon be tabled in Parliament.
Ms Van Schalkwyk reminded the Committee that during its last site visit, the entourage was so big that Members could not do their work. This needs to be managed next time.
The Chairperson agreed. She noted that she has received calls from people appreciating how the Committee has handled the Beitbridge issue. The Committee is a representative of the public and thus its role is to hold the executive accountable.
The meeting was adjourned.
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