Allegations against Defence Minister: way forward; Extension of SANDF in Mozambique Channel

Defence

06 May 2021
Chairperson: Mr V Xaba (ANC)
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Meeting Summary

Video: Joint Standing Committee on Defence

Documents: Operation Copper presentation; Legal Opinion

The meeting on the extension of SANDF deployment in Mozambique Channel was closed to the public.

A legal opinion was provided by the Parliamentary Legal Adviser on the competency of the Joint Standing Committee on Defence to deal with allegations of receiving kickbacks and mismanagement of resources made against the Minister of Defence and Military Veterans. They concluded that the way forward would be to invite the Minister to respond in writing to the allegations of receiving kickbacks and mismanagement of resources. and to meet on 13 May to determine the way forward thereafter.

The Committee reviewed its Committee Strategic Plan and Annual Performance Plan and adopted its Second Term Programme with additional suggestions about meeting with Denel and Department of Military Veterans and receiving a briefing on Mozambique.

Meeting report

Extension of SANDF deployment in Mozambique Channel
[This item was held before the official start of the meeting and audio was muted up to this point.]
Mr D Ryder (DA, Gauteng) reminded the Committee about the discussion they had a couple of months ago about the fishing rights criminality happening further down the southern coast. The point was made that that area does not necessarily fall within the ambit of the Navy. With the fairly broad wording of the duties in Operation Copper, he wondered if it is the best use of resources to limit the exposure to the same area that they are. The slight and subtle change in wording has a massive impact on what they expect from the Defence Force in its actions based on the instructions received in the letter.

The Chairperson commented that Mr Ryder was just emphasising the point as the Minister had dealt with it. The letter sent to Parliament only reflects one aspect – that is the anti-piracy aspect. The Committee concluded that because that is the only document they have access to, they are happy to be aligned to the Presidential Minute especially when it comes to the deployment purpose so there is no confusion why they are sending the soldiers on a mission.

Minister of Defence and Military Veterans, Ms Nosiviwe Mapisa-Nqakula, agreed. She suggested that she get in touch with the Office of the President so they realign the letter contents with the Presidential Minute.

The Chairperson agreed with the Minister and the letter should be returned the next day with the Minister’s clarification recorded in it.

The Minister agreed to this and stated that what is important is that in future Parliament should receive information timeously when there is an external deployment so the Speaker  and the Committee are informed to avoid mistakes being made. She agreed to look into the matter and deal with it.

The matter raised by Mr Marais was important because looking at it at face value, when the entire matter started it had to do with piracy in that area. When looking at the nature of the problem, they need to look at whether they are talking about criminality or about something else. As soon as they begin talking about terrorism, they would need to obtain advice from those who are technically informed. The moment they begin to define the nature of the problem in that part of the country as terrorism, they need to be aware that that sometimes means that it must go beyond your region. For now, they are speaking about regional initiatives to assist Mozambique. It means it must reach beyond that to the African Union and the United Nations for them to assist in deciding the nature of the intervention required in the area. That is why they tend to find it difficult to say outright what action to take. They hide behind criminality until those who bear the onus of being affected by the problem actually define and agree on the nature of the problem. That is when this can be adopted, and they can move in that direction.

The Chairperson agreed that in a week or two they would have a physical meeting wherever the Minister wants to host them where they would engage on the matters that cannot be discussed in an open meeting.

Legal Opinion on Competency of this Committee to deal with allegations against the Minister
Ms Sueanne Isaac, Legal Adviser: Parliament of South Africa, provided the Committee with a legal opinion. She said it was limited to the powers of the Committee and the possible process that could be followed in the matter. It did not delve into details of the allegations. The Constitution is the prime source of the Committee’s powers and functions. She concluded that the Committee has the competency to investigate any matter that involves the budget, functioning, organisation, armaments policy, morale, and state of preparedness of the South African National Defence Force (SANDF). Further, the Committee has various mechanisms available to it to conduct such investigations such as summoning of witnesses and documents, asking a person or institution to report to it, hearing oral evidence and holding public hearings.

On the matter of process, the rules of natural justice would require that each party be given an opportunity to be heard. It is not clear if the Minister has been given that opportunity to answer to the allegations put forward to the Committee. To provide that opportunity would be the step taken before investigating the veracity of the allegations. On assessment of the information provided to the Committee by the Minister on the allegations, the Committee would be able to decide if any further action needs to be taken.

In conclusion, she stated that the Committee is competent to investigate allegations made against the Minister and it has specific mechanisms provided for it in the Rules to do so. She advised that the Committee afford the Minister an opportunity to respond to the allegations by writing to the Minister, setting out the allegations and requesting her to respond within a reasonable period of time. Upon receipt of the response, she suggested the Committee assess both the allegations and the Minister’s response to determine if it should proceed with any further steps within its mandate. 

Discussion
The Chairperson said that they are dealing with an anonymous witness which makes it difficult to test the allegations which presents the first hurdle and asked Ms Isaacs to indicate how to overcome this. For any accused to present their case effectively, they must have access to the statement of their accuser so that they may challenge it effectively. It is fundamental to the right to a fair trial. When the accuser does not come forward for cross-examination, it will leave the Committee with unsubstantiated allegations, which would make it difficult to draw a line between a genuine and malicious allegation. What can be done where the Committee asks the Minister to explain herself on unsubstantiated evidence?

The Chairperson said there are law enforcement agencies appointed to deal with criminality matters such as the allegation that the Minister received kickbacks from a service provider that does business with the Defence Force – which conduct is improper. Does the Committee get involved in that aspect as well when it is out of their mandate as they see it? Perhaps there is a link between that and preferential treatment? Regardless they do not have the evidence to say that as result of the kickbacks, the Department was induced to grant that service provider preferential treatment due to the Minister. He understood the second matter alleges the misuse of funds. He asked that they separate the two matters – one where a crime is alleged and the other on the mismanagement of resources. He is not claiming that this is the truth but they are the allegations in the letters and in the media.

Ms Isaac, Parliamentary Legal Adviser, replied to the question if this was the correct forum to consider a criminal matter. They should start with the mandate of the Committee which is to oversee the SANDF on budget and policy issues. It may be that certain allegations amount to criminal action, but this Committee is not conducting a criminal investigation because its mandate is to conduct oversight. If the Committee becomes aware that there are allegations of a criminal nature, then the Committee is within its right to refer it to the appropriate agency. However, she cautioned against overlooking the allegations just because they are of a criminal nature. There may be evidence that refutes the allegations but she advised that it would be better to hear the allegations and consider the response before deciding to proceed or deciding right now that it is of a criminal nature and would not be appropriate for this Committee.

On the matter of allegations being made by an anonymous person, they would first need to test the allegations. If there is evidence within the letters that link it to specific items that are factual based, then it is not for the Committee to simply disregard it. There may be a person who is a whistleblower who is afraid to come forward at this stage. However if the allegations have factual veracity and there is a basis to probe them; then she advised the Committee not to be dismissive of them merely because the person making the allegations has not come forward as yet. The way of dealing with this is to afford the Minister a right to be heard. The Minister must have the opportunity to give them information to refute all these allegations. Until they allow these to be tested, they will just be allegations and the Minister will not be given the opportunity to refute them as being totally false. As it stands the allegations are up in the air, no one has come forward to contest it and she has the right to contest them because they are already in the public domain. 

Mr S Marais (DA) commented that he is always cautious to jump on the bandwagon if someone shouts fire and one must ensure to a certain extent that they are substantiated or supported. From what he knows in the legal fraternity, there must be other strong, circumstantial evidence, or at least, some prima facie evidence that indicates to probable or possible transgressions. The evidence at this stage is not affidavits or certified copies of the originals. At this stage it seems like there is prima facie evidence of some possible wrongdoing. Perhaps the Minister can be given the opportunity to provide explanations which this Committee can interrogate. He supported Ms Isaac’s opinion that the Minister must be given the opportunity to answer to the allegations. It is the Committee’s responsibility as they have parliamentary oversight over the Executive, which is the Minister, the Department and the SANDF. This cannot be left.

The Committee needs to start the process and depending on the information received, they would take it further. They need to decide how they will deal with the process because it has to be confidential. They cannot have a situation where someone is given the opportunity to respond but when they do it becomes a matter for 'public justice'. He has been watching the Zondo Commission and although he is not suggesting that this is state capture, there are similarities between what happened there and with this in terms of Parliament not doing its proper oversight. As a result his opinion is that they start the process by giving the Minister the opportunity to respond to the allegations provided in the documentation received, and they take it from there.

Ms M Modise (ANC) commented that the legal opinion by Ms Isaac had provided them with clarity and would assist in how to move forward. She supported the view of giving the Minister an opportunity to appear before the Committee and explain herself. Thereafter they would be able to decide if the matter must be referred to the appropriate agencies as this Committee does not have jurisdiction to conduct criminal investigations.

Ms T Legwase (ANC) agreed with Ms Modise. However, the matter is more complex because they only know a single side of the story. If they wanted to dig deeper into the details, they would not know how to gain clarity from this anonymous person. She agreed that they must call the Minister before them but the Committee must satisfy itself to the side of the story received – who would be giving answers to the questions arising from what has been given? Their own investigation is important before taking a decision. She does not know how they are going to approach arriving at a point where they refer the matter after calling the Minister. Her view is that the Committee would not have done justice to the process if they know only a single side coming from the Minister. They would be interrogating her response on inviting the Minister.

The Chairperson commented that the first letter is about the service provider as well as the second letter even when there is no direct reference to it. The second letter is a continuation of the first as more evidence from the same person. He asked the Committee if that was its united conclusion.

Mr Marais commented that it most probably is but at this stage they do not know all the answers. They just know that there is some documentary support and proof for the allegations. Perhaps they should return to Gen Bantu Holomisa and ask if he has any prima facie evidence for the first letter and depending on that determine if they must proceed because that is still an allegation, and they must give the Minister the opportunity to respond to it. Based on the feedback, they must consider what the next step must be if that means having hearings, referring the matter or to make another decision.

The Chairperson agreed that he accepted the Minister would be granted an opportunity to provide her side of the story. The Minister is actually looking forward to that because the matter has gone public and she is being tried in the court of public opinion. He does not know how it got to the media or what the motive for it was. This matter is hanging over her head and she would love to be granted an opportunity to come and present her side. There is no two ways about that but this is about the process the Committee must follow as the decision they take will be setting a precedent so they must be sure that the procedure is fair. Perhaps he must go back to Holomisa and check because the evidence provides dates, amounts and locations where certain transactions took place. This means that one cannot hide one's identity. Perhaps the person would be prepared to come forward and back this thing up. He would start by going back to Holomisa and checking if the person would be prepared to depose to an affidavit on all the allegations that were put forward and for the Minister to be invited to respond in writing to the allegations. On evaluating both the allegations and the Minister’s response the Committee will then decide on a way forward. He asked if his proposed approach was acceptable to the Committee.

Mr Marais commented that he was not sure if it depends only on an affidavit as from the documentation they can see there is prima facie evidence. They could ask for the affidavit and it would help their process but they would have to protect the person in terms of the Protected Disclosures Act. They cannot make public who the person is if that person wants to be protected in terms of the Act. Ms Isaac’s opinion would be appreciated but his personal view is they must submit what they have to the Minister and ask for her official response to the Committee based on the current allegations. Perhaps the Minister would give the Committee evidence so they would end up not needing an affidavit. Going forward an affidavit would help in the case if there is a case against the Minister. If there is no affidavit or further confirmation of these allegations, that would strengthen the Minister’s case.

The Chairperson agreed and commented that he did not want to assume that the person wanted to remain anonymous or to be protected as a whistleblower. If that is the case they would get the Minister’s written response and take it up from there. It would help if they began to establish contact with the person so that should the Committee need to clarify certain matters, at least they would have established the contact and would know who they are talking to. The Minister has a right to be heard. It is just to ensure that their own process is correct but if this person returns and says they are not prepared to depose to an affidavit or to come before the Committee and they want their identity to be protected, the Committee will move forward with that at the back of their mind. He agreed with the legal opinion. He wanted the Committee to deal with the matter on Thursday 13 May depending on if they obtain the affidavit from the witness and if the person does not want to come forward, the Committee would still deal with the matter. He asked if any of the Committee Members were opposed to the suggestion.

Ms M Bartlett (ANC, Northern Cape) said she was covered by what the other Members had to say.

Mr K Motsamai (EFF, Gauteng) said that he was covered. Allegations can be true or false. They need the affidavit but if a person does not want to appear before the Committee he does not believe that they can take the allegation very seriously.

The Chairperson remarked that they can make that call on 13 May on whether the allegations should be taken seriously but if the witness wants to be granted whistleblower protection they would observe that because there are laws that govern that. He had to leave the meeting early to attend another one so he asked Ms Modise to step in as Acting Chairperson for the rest of the meeting.

JSCD 2021 Second Term Programme
The Secretariat took the Committee through the JSCD 2021 Second Term Programme and its amendments. 

Ms Modise, Acting Chairperson, stated that she was happy with the programme and its amendments. She asked for the Members’ input on the programme.

Mr Marais drew attention to matters he believed could not wait till the Third Term. Firstly, the Bantu Holomisa case the following week. The Minister and the new SANDF Chief said that the Chairperson has also referred to a meeting that must be set up in Pretoria for the Minister to brief them on the Mozambique issue and the threats to South African borders which has not been provided in the programme.

The programme has also not provided for the fact that consideration of the letters needs a closed session.

He has also seen an article in DefenceWeb that was of major concern to him about Denel’s incapacity to look after the C-130BZ Hercules cargo aircraft, Oryx helicopter and the Rooivalk in terms of maintenance and spare parts. This was a concern for the Air Force according to Major General Setete Malakoane, SAAF Chief Director: Force Development and Support, as Denel is not meeting its contractual obligations for product support and maintenance. Mr Marais also mentioned Lieutenant General Mzayifani Buthelezi, Acting Chief of the Air Force. These aircraft systems are so important and are critical for the country’s defence capabilities and this is in the public domain. He sent a copy of this letter to the Chairperson and anyone can go onto DefenceWeb and see that Denel is dragging the South African Air Force down. It refers to specific strategic military equipment that they are using in the Democratic Republic of Congo and need for air support. If that equipment is paralysed because of Denel’s situation then South Africa’s security is threatened. He believed they would need to get an urgent briefing as soon as possible by Denel and the specific generals referred to in the article so they can be brought up to date on developments, threats and realities and not read about it in news articles. If this results in another closed session then so be it but it is of national interest.

Mr Motsamai made a comment in vernacular.

The Acting Chairperson provided a translation of Mr Motsamai’s comment who said that there are serious issues in the Military Veterans Department because most of the veterans are very sick and dying. Mr Motsamai suggested that the Committee needs to treat that matter urgently and visit the Department of Military Veterans. She suggested the Committee cluster the President's letters and Mozambican issues to make it one item to deal with so that they have enough time.

The Committee agreed to her suggestion.

Mr Marais said that there was a discussion in the past that military veterans must only be dealt with by the Portfolio Committee on Defence and Military Veterans. He had no principle issue against it but wanted to check with the Chairperson Xaba on the matter.

Ms Modise agreed that the Secretariat would check with the Chairperson.

JSCD Strategic Plan and Annual Performance Plan
The Secretariat took the Committee through the Strategic Plan and Annual Performance Plan of the JSCD.

The Acting Chairperson asked for comments.

Mr Marais commented that the Strategic Plan and Annual Performance Plan of the JSCD was similar to what they had previously supported and as such they should support it.

Ms Bartlett commented that it would be interesting to get a report on the previous study tour so they can see what the impact of those study tours were and measure the impact thereof. 

The Committee approved its Strategic Plan and Annual Performance Plan.

The meeting was adjourned.
 

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