Letter submitted by Mr Dirks: Allegations related to the misuse of public funds (Internal document)
Parliamentary Legal Opinion (Internal document)
Mr Lees’s written proposal on the matter (Internal document)
In this virtual meeting, the Standing Committee on Public Accounts received an oral submission from a Member of the Committee (Mr M Dirks) about the allegations of misuse of public funds outlined in an audio clip recording. In the leaked audio of an ANC National Executive Committee, the President made utterances about apparent misuse of public funds for party campaigning purposes. Parliamentary Legal Services provided a legal opinion on the matter, specifically the request to summons the President before the Committee. The Committee considered the request and legal opinion on the matter.
Mr Dirks requested that the President be summoned to appear before the Committee to answer questions about the leaked audio recording. He suggested that the President’s inability to outline the matter before the Zondo Commission amounted to an act of ‘criminal omission’ or perjury and limited the findings of the report on State capture. He highlighted aspects of the legal opinion prepared by Parliamentary Legal Services, specifically that the Committee had the ability to summons a person to appear before it or produce documents. The broader mandate and function of the Committee was outlined, particularly its function as an information gathering and oversight body. This was supported by the Parliamentary Legal Services legal opinion. He highlighted the consequences of his decision to bring the matter before the Committee and that he had written a formal letter to the Public Protector on the matter.
Parliamentary Legal Services presented its legal opinion on the matter, specifically focusing on the summons request and contents of the letter. It was noted that there was no publicly available record of the meeting held amongst the National Executive Committee, from which a partial audio recording was leaked of the President. The audio referred to alleged utilisation of public money from the State Security Agency. it was noted that the audio recording seemingly implied that public funds were used for party campaign purposes. The mandate of the Committee was outlined in detail, specifically what documents and information the Committee had oversight of. It was emphasised that the Public Protector was responsible for investigating any alleged ethical breach of conduct, not Parliament. The Parliamentary Legal Services advised that summons be used as a last resort and only in the event that an individual refused to comply with a reasonable request to appear before the Committee. It was noted that the President had not indicated that he was unwilling to attend or unwilling to provide information.
The Members took into consideration the legal opinion provided by Parliamentary Legal Services and the need to exhaust other methods, using a summons as a last resort. Concern was raised about the general ‘pandemic’ of corruption in South Africa. The need to deal with the matter urgently through established process was emphasised. Members discussed the need to invite the President or request a written response on the matter. The Members further considered how to handle the other public entities implicated in the audio recording and what process should be followed. Concerns were more generally raised about the lack of oversight of the State Security Agency’s ‘slush’ fund. it was proposed that the Committee needed to decide upon a way forward once it had all the facts before it.
The Committee agreed to write to the President to establish facts and an explanation from him on the issue, understanding that the Committee would reserve the right to invite the President at a later stage. At the same time the Committee would inform the other affected parties of the same. Communication would be dispatched the following day, at the latest the day after that, giving the President seven to ten days to respond. That response would lay the foundation of the nature and shape of the investigation into the matter.
The Chairperson confirmed that this matter was a key priority. He assured South Africans that the Committee took its responsibilities seriously as well as that of the independence of the legislature. The Committee was committed to fulfilling its work in line with the Constitution, the Rules of the National Assembly and Parliament and other relevant legislation. The Committee would not deal with the matter on a party-political basis. Everything would be done ‘to shield the Committee from the complications and complexities of party politics.’
The Chairperson provided a brief summary of the background to the matter under discussion in the meeting. On 22 December 2021, he had received correspondence from Mr M Dirks (ANC) on a matter about an audio clip of the President of South Africa making ‘certain utterances.’ It was Mr Dirks’ request to the Committee that the matter be dealt with and that the President be summoned before the Committee. He had engaged with the House Chair on the matter. It was agreed that the matter would be given attention in January 2022. The legal opinion on the matter had been circulated to Members. Parliamentary Legal Services would be given an opportunity, after Mr Dirks’ submission, to brief the Committee on its legal opinion. The Committee would then be able to take a decision on how to proceed with the matter.
The ‘utterances’ attributed to the President were of a serious nature. It deserved the attention of the Committee as it touched on the use of public funds for political party activities. The Committee was mindful of the fact that it was an incomplete audio clip, in which the President was speaking. He was of the opinion that the Committee needed to look at the matter, given the seriousness of the utterances in the audio clip. It was a standard operating procedure of the Committee to allow Members to address the Committee if an issue was brought to the Committee’s attention that was relevant to its scope of work.
There had been other developments outside the scope of the Committee, being developments that were political party based. The day before, he had received court papers, wherein he had been cited, with the Speaker, on a relief [Timestamp:6:22] which Mr Dirks sought in the Western Cape High Court. The matter was heard earlier that day. Those court papers indicated that no relief [6:34] was sought from the Speaker, the Chairperson or the Committee. He and the Speaker had filed a motion/notice to abide by the Court’s decision. The content of those papers in large part was not the scope of the Committee. That matter was heard and the Court had made a judgement on it. The Committee was in a position to proceed with the matter.
He asked that Mr Dirks make a presentation to the Committee on his letter.
Adv Frank Jenkins, Senior Parliamentary Legal Advisor, confirmed that Ms Fatima Ebrahim, Parliamentary Legal Advisor, would present the legal opinion to the Committee after Mr Dirk’s submission.
Oral Submission by Mr Dirks
Mr Dirks made a brief submission to the Committee outlining the contents of the letter and his decision to bring it to the attention of the Committee.
He thanked the Chairperson for responding to his letter, dated 22 December 2021, and the request therein that the President of South Africa be summoned to appear before the Standing Committee on Public Accounts (SCOPA). He noted that it was standard practice of the Committee to have called the meeting, as previously stated by the Chairperson.
Section 48 of the Constitution obliged Members of the National Assembly (NA), to affirm their faithfulness to South Africa and their obedience to the Constitution. His submission should not be seen as a betrayal of his party, nor of its leaders, but an act of faithfulness to the Country and to the Constitution. He acknowledged that it was no small matter to request that the President appear before the Committee, or any committee.
His initial letter, of 22 December 2021, reflected the weight of responsibility that he felt in bringing the matter to the attention of the Committee. The letter had referred to the widely circulated African National Congress (ANC) National Executive Committee (NEC) meeting in which the President admitted that he was aware that public funds were misused for party political activity. The ‘authenticity of the recording had not been denied’ by those in attendance. The President had a responsibility before the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State, known as the ‘Zondo Commission,’ to report his knowledge of this serious crime. This act of ‘criminal omission’ to his mind amounted to perjury and limited the findings of the report on State capture.
In his letter he had highlighted the current state of over-burdened taxpayers, particularly given the impact of the COVID-19 pandemic. There was a dire situation of a lack of State resources, which had serious consequences on the State’s ability to legitimately service the needs of the population, the majority of whom were desperately poor. No citizen was above the law, including the President.
He outlined the gravity of his decision to bring the matter to the attention of the Committee via the letter. He outlined the consequences of this decision within his own party as well as the conduct of other members of his party.
The Chairperson requested that Mr Dirks confine himself to the matter at hand, being the specific request that was made for the Committee to consider. He stated that the Committee would not engage in party political matters. The issues of Mr Dirks and the Chief Whip of the party were not matters that concerned the Committee.
Mr Dirks agreed to what the Chairperson had requested. By bringing the issue to the Committee, it had become the responsibility and duty of the Members of the Committee to ensure that the matter was acted on. He insisted that the President needed to be summoned to account to what was said in the audio clip, specifically concealing or withholding information about the crime of misuse of public funds. The Committee occupied a unique role in the parliamentary structure and had the general power to summon any person to appear before it or to produce documents.
He referred to the last paragraph of the Legal Opinion which stated that SCOPA was an information gathering tool to facilitate and strengthen the execution of the mandate of Parliament, including oversight of the executive and organs of State. Furthermore, paragraph 24 of the Legal Opinion stated that, if indeed public funds of any department, or public entity had been utilised for unauthorised purposes, SCOPA was mandated to further investigate and consider such matters. Of particular interest was how the unauthorised expenditure was captured in the financial statements, and if it was detected by the Auditor General (AG) and reported. If it was not detected, it must be determined if there was any conduct that constituted misrepresentation by any official. This needed to be read with the first sentence of paragraph 25 of the Legal Opinion. Paragraph 25 of the Legal Opinion stated that in order to fulfil its oversight mandate, SCOPA would require further information to determine if government departments and entities channelled funds unlawfully for the purposes outlined by the President in the audio clip. Ultimately, the Legal Opinion concluded that the Committee could resolve to call on the President to provide information on the matter, which was important. The focus should be on what information the President had to assist the Committee to fulfil its oversight mandate.
He suggested that the President was in breach of the ethics code as he was in possession of such information. This fell under the responsibility of the Public Protector. He had written a formal letter of complaint to the Public Protector about the matter.
If the matter went to a vote during the meeting, he would still be considered a voting member, as no removal from the Committee had been stated in the Announcements, Tabling’s and Committee Reports (ATCs), which was a formal requirement to remove a Member from the Committee.
Oral Presentation by Parliamentary Legal Services
Ms Ebrahim presented the Parliamentary Legal Services’ Legal Opinion, specifically if the President could be summoned to answer to allegations of the use of public funds for certain election campaigns.
The letter was based on the leaked portion of the audio. She noted that there was no publicly available record of that meeting in its entirety. The audio referred to alleged utilisation of public money from the State Security Agency (SSA), the Opinion made specific mention of that. She outlined the responsibilities of the NA and SCOPA. She specifically spoke to the Rules of the National Assembly, Rule 245(1), which set out the mandate of SCOPA. SCOPA needed to consider the financial statements of all executive organs of State and constitutional institutions or other public bodies, when those statements are submitted to Parliament. Any audit reports issued on those statements needed to be considered as well as any reports issued by the AG on the affairs of any executive organ of State, constitutional institution or other public body. Any reports reviewing expenditure of public funds by any executive organ of State, constitutional institution or other public body needed to be considered as well as the financial statements or reports communicated to the Committee in terms of the Rules. The Committee could then report on the matter to the NA and initiate any investigation in its area of competence and should perform any other functions, tasks or duties assigned to it in line with the Constitution, legislation, the Rules, Joint Rules, or resolutions of the Assembly.
The oversight function did not only occur via committees. Section 56(a) of the Constitution, read together with the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act, Act 4 of 2004, stated that the NA and any of its Committees could summon any person to appear before it, or to produce documents.
The Executive Members’ Ethics Act, Act 82 of 1998 stated that Members of the Cabinet and deputy members must act in accordance with the code of ethics prescribed by National legislation, it set out the minimum ethical standards that the Cabinet members and deputy ministers must abide by. She noted that Parliament had a separate ethics code. Section 1 of the Executive Members’ Ethics Act prescribed that the code of ethics needed to promote an open, democratic and accountable government to which all Cabinet members, which included the President etc, must adhere to. That code went into some detail into the specific ethical obligations – but this was not necessary for the purpose of this meeting. Section 3 of the Executive Ethics Code mandated the Public Protector to investigate any alleged breach of the Code on receipt of a complaint. That oversight power rested with the Public Protector and not Parliament.
The audio recording on which Mr Dirk’s letter was based did not provide the entire meeting nor the context of the discussion. That was the only information provided to Parliamentary Legal Service in order to prepare its Opinion. Nonetheless, the audio recording seemingly implied that public funds were used for party campaign purposes. It appeared that reference was made to funds being channelled from the SSA for that purpose. SCOPA was responsible for the oversight of financial expenditure of public funds through engaging with, and interrogating, financial statements and other documents of organs of State. If there were allegations of such funds being used from public entities or government departments, at some point SCOPA would have been appraised with those financial statements.
Section 1 of the Public Finance Management Act (PFMA), Act 1 of 1999 defined unauthorised expenditure as expenditure that was not in accordance with the purpose of a vote or a main division not in accordance with the purpose of the main division. Accounting officers who failed to prevent unauthorised expenditure or losses from criminal conduct, were guilty of financial misconduct, that in itself constituted a criminal offence, in terms of Section 86 of the PFMA. It was of particular interest to SCOPA if such expenditure was captured in the financial statements as well as by the AG and reported on. If it was not detected, it must be determined if there was any conduct that constituted misrepresentation by any official. It would need to be determined where the gaps were that allowed for it to go undetected, given the oversight mechanisms in place. SCOPA would need more information to determine which government departments or entities may have channelled funds unlawfully, for the purposes allegedly alluded to by the President in the audio clip; this would assist SCOPA to narrow its inquiry into the matter and call for further evidence as required to fulfil its oversight function. Once SCOPA knew which departments might be implicated, or public entities, SCOPA could then determine who should be called to account.
The President may be requested to provide information, including records on any relevant issue, relevant to the functions of SCOPA. Information about the misuse of public funds for election campaigns, instructions to any minister and accounting officials to facilitate release of such funds would be valuable, particularly where such instructions came from. The President spoke of contracts in the audio clip – further information was needed on this to determine if there was any information about contracts of goods and services and payments for party campaign purposes; SCOPA would be able to trace these back to the financial statements. Once this information had been obtained, SCOPA could then decide if further investigations were required. SCOPA might choose to initiate its own processes, or it could be referred to the Hawks, if criminal conduct was suspected on the part of any persons. It could be referred to the to the Public Protector if there was a possible breach of ethical conduct. SCOPA did not have the scope to deal with any ethical breaches of the President. The Joint Standing Committee on Intelligence had a specific mandate to look into the accounts of the SSA, as outlined in Section 3 of the Intelligence Services Oversight Act, Act 40 of 1994. Historically, it was that Committee that looked at those financial statements. There was nothing that prohibited SCOPA from considering same.
Notwithstanding SCOPA’s power to summons any person, the Parliamentary Legal Services advised that summons be used as a last resort and only in the event that an individual refused to comply with a reasonable request to appear before the Committee. In the interest of cooperative governance, a summons should be used conservatively and attempts to secure the presence of required individuals should be by invitation wherever possible. In this case the President had not indicated that he was unwilling to attend or unwilling to provide information. Therefore, a summons should be a last resort. Consideration should be given to the provision of information orally or in writing by the President, in response to the questions of the Committee.
Adv Jenkins confirmed that he had nothing else to add.
The Chairperson stated that the day before, the Committee had received communication from the SSA to provide the documentation for the meeting, for the purpose of SSA being prepared for the meeting. The Committee was not at a stage where it would be interacting with the SSA or any other affected party, until it had made a determination. In the event that SSA was present in the meeting, it would be solely for the purposes of listening to the proceedings.
Mr B Hadebe (ANC) stated that this meeting, like any other meeting of SCOPA, Members were called upon to attend to a very important matter. The Committee was there to ensure that all executive organs of State were accountable to the NA through SCOPA. He wanted to assure the public that SCOPA would continue to exercise its rights, perform its duties, roles and responsibilities. In executing its mandate, the Committee would do so without ‘any fear or favour.’ SCOPA was not in the business of protecting anyone, no matter the position one held. The Committee would do so in line with the Constitution, including adherence to the Rules of the NA and all other mechanisms at the Committee’s disposal to ensure accountability. There should ‘be no doubt, confusion or uncertainty when it came to that aspect of SCOPA’s mandate.’ [Another language spoken 53:16]. It needed to be clear that the Committee was there to afford Mr Dirks the opportunity to address them, which he had, in order for the Committee to be able to make an informed decision on the way forward.
Any allegations of misuse of public funds were taken seriously and deserved the attention of the Committee. At this stage, the Committee was not dealing with the merits or demerits of the allegations as it related to the misuse of public funds. Having read and listened to the correspondence of Mr Dirks and the legal opinion supplied by the Parliamentary Legal Services, the letter was based only on the leak of a portion of an audio recording, wherein there were no publicly available records of the meeting in its entirety. He agreed with the legal opinion, that Mr Dirks letter was based on limited information and did not provide sufficient context or the entirety of the President’s remark. The Committee’s mandate was to oversee the financial expenditure of public funds. As the legal opinion had clearly stated, it was not the role of SCOPA to deal with any other alleged ethical breaches nor was it the mandate of SCOPA to consider the conduct of the President, including information shared or not shared with the Zondo Commission, as alleged in the letter. The advice given, was that in Section 56(a) of the Constitution, read together with Powers, Privileges and Immunities of Parliament Act, Act 4 of 2004, each individual committee was restricted to summoning persons who may be able to answer questions or produce information, related to the committee’s particular mandate. The NA held the President to account in accordance with the NA Rules, Sections 140 and 145, which regulated the posing of questions to the President for oral or written reply.
He did not recall any instance or situation where the President had failed or vehemently refused to answer questions in Parliament. There was no reason that the Committee should resort to summoning someone. This view was supported by the legal opinion, which read ‘not withstanding SCOPA’s power to summon any person, Legal Services advised that summoning be used as a last resort. In the event that an individual refused to comply with a reasonable request to appear before the Committee, in the interest of cooperative governance, a summons should be used conservatively.’ He had not witnessed a situation where President Cyril Ramaphosa had refused to answer questions before Parliament. It would be ‘highly irrational, unreasonable and unjustifiable’ for SCOPA to consider summoning the President. The issue of summoning should not arise at this stage. ‘There was no evidence or basis to summon the President.’
He suggested that the Committee be guided by the principle of ‘natural justice,’ which emphasised procedural fairness. Natural justice protected individuals and enhanced confidence in the process. He suggested that the Committee should first write to the President, alert him of the allegations and then request the President provide the Committee with a written response. Once that was done, SCOPA should be allowed sufficient time to process the response, which would be in writing from the President. Based on the response, the Committee would then determine its next course of action. This had been the Committee’s operating procedure in various other hearings. The Committee wanted to deal with this decisively and urgently, as soon as relevant information was before it.
Mr A Lees (DA) stated that the leaked recording went public sometime before. It caused considerable ‘angst’ throughout South African society. South Africa was faced with an ongoing ‘pandemic’ of State corruption. The Zondo Commission was coming to an end, which had certainly highlighted that. The unauthorised use of State funding had been going on for a very long time and continued. The fact that there was a recording which seemed to indicate that the President had knowledge, if not participated, in such unauthorised expenditure of State funds was extremely concerning. In fact, it was very serious. It needed to be dealt with in one way or another in order to ensure that the Committee was serious about dealing with corruption that was endemic in South Africa presently. He had sent the Committee a draft resolution which he asked the Committee to consider. To some extent it fit in with what Mr Hadebe had suggested.
He stated that if he were President Cyril Ramaphosa, he would volunteer to deal with the matter transparently and openly as well as be willing to come and address the Committee and state the facts. This would ensure that the Presidency of South Africa was not tainted with the same corruption brush that tainted so many South African politicians, ‘some of whom remained in Parliament’ to date, but had not been referred to the Committee. The draft resolution he put forward to the Committee, did not preclude a summons at a later stage. He would urge the President and his advisors to take the opportunity to voluntarily come forward and appear before the Committee to enable the Committee to ask questions. Many of the parliamentary written or oral questions never got answered – the situation had gotten worse in the sixth Parliament, with the lack of sufficient responses from Ministers and other parties.
He suggested the Committee ask the President for a full written explanation within seven days, as the matter had been going on for a month. He was sure that the President and his legal advisors had considered the matter very carefully and did not need a lot of time to prepare a response. That would be the first step in a process. He asked that the Draft Resolution, that he had communication to the Chairperson, be amended to include a timeframe of seven days for a written response.
The Chairperson asked that the Secretariat circulate the Draft Resolution to the Committee.
Ms V Mente (EFF) stated that there were questions that were unanswered, but that was not the Committee’s mandate. SCOPA was policing the public funds. As and when the Committee was alerted to misappropriation of funds, it was the Committee’s duty to ensure that it guarded ‘jealously’ the public purse. There was a clear indication of public funds referred to on the recording by the President. SSA was highlighted on the tape as being an easy target for taking funds. SCOPA was allowed to go into that space. During the Budget Mini-Plenaries, two or three parties had raised concerns about SSA – specifically the management of the slush fund and the lack of oversight of it. Parliament was called upon to do something. There could not be a situation where there was that kind of money in the Country that was unaccounted for that was being utilised for unknown uses.
It was asked where SSA was when schools were being burnt on a daily basis. Where was the money that was always allegedly ‘being spent on spies to ensure that facilities, and anyone coercing society into destroying public facilities was caught before they could advance’ - there had been no answer. The Legal Opinion needed a legal opinion, because there were funds at SSA that were not policed by anyone. In the recording it was very clear that some of the areas where the money came from was SSA. It was not a grey area - it was easy to get one’s hands into the ‘cookie jar’ of the SSA slush fund and use it for anything. That was public funds. All other departments were suffering and had their budgets cut. It required SCOPA to ‘get into the space.’ If SSA money was alleged to have been spent for party politics besides the allocations that the legislation allowed to political parties – SCOPA ought to know. That money needed to go to the people, to the building of schools etc. SCOPA could not be told by a legal opinion that ‘someone was doing…’ There was no one doing anything anywhere on that.
The Public Protector, in terms of her mandate, dealt with the ethical conduct of Cabinet, the Executive and the President. SCOPA was not looking at the ethical conduct of the President. SCOPA was looking for information from the President that the President knew. SCOPA was affording the President the opportunity to clarify what was said in the meeting, as SCOPA had been ‘looking for culprits.’ ESKOM was dead. Transnet was dying. South African (SA) Express was dead. South African Airways (SAA) was dying. Denel was dead. If the President knew something that would help SCOPA, he should tell the Committee the information. SCOPA was not interested in the President’s ethical code of conduct – at least not at the moment.
SCOPA should afford the President an opportunity to appear before the Committee to explain, what was said on the recording, to South Africans. As the President of the ANC, she was aware of the people in the ANC who got their hands into the cookie jar, took South Africans’ money and used it for party politics to contest other parties. That was what the Committee wanted to know. The Zondo Commission made it clear how the slush fund was spent. It was clear how easy it was to get money from the slush fund.
Ms T Marawu (ATM) agreed with Mr Lees and Ms Mente that the Committee had a constitutional and statutory obligation to guard against the misuse of public funds. She suggested that the President come before SCOPA so that Members could interact directly with him and find out about the grey areas. She was concerned that writing letters would be ineffective. The letter could not explain itself. By inviting the President, questions and answers could be fully explained. She suggested that SCOPA invite the President and that this request and response be made within seven days so that the matter was resolved.
Ms N Tolashe (ANC) suggested that the Members should honour the oath taken and exercise their mandate. He stated that SCOPA was ‘on it.’ This was not the first time that a matter of this nature was brought to the Committee’s attention and such matters had been handled diligently. SCOPA was committed to respecting the oath. He suggested that the Committee should not be emotional about the matter. He appreciated that Mr Dirks had brought the matter before the Committee. The Committee needed to be clear and meticulous in dealing with it. He agreed with Mr Lees, it was an important and the public would want to know how the matter was addressed. SCOPA would deal with it. She appreciated the legal advice, which explained what was supposed to be done. This was what the Committee would do. She agreed with Mr Hadebe’s approach; the Committee should not cut corners. The Committee needed to deal with the matter without being emotional nor vindictive. The Committee needed to deal with the matter with the facts before them.
She suggested that the Committee should follow Mr Hadebe’s proposal and give an opportunity to whoever had allegedly been involved to have an opportunity to respond. The Committee was not a court of law and should not create that impression. It would be difficult if Members brought forward their own resolutions – she did not think it was fair. The Members needed time and space to resolve the matter. She seconded Mr Hadebe’s proposal, which was in line with all the guiding documents and the experience the Committee had. There might be many people who were implicated in this matter and the Committee needed to hear those representations to get to the bottom of the issue, conclude on it and provide clear guidance of what needed to happen going forward.
Ms B van Minnen (DA) commended Mr Dirks for bringing the matter to SCOPA, which was the organ of Parliament that was tasked with dealing with issues of public monies. She had read the legal opinion carefully, and she saw no reason why SCOPA should be limited in doing its part. SCOPA would be remiss, in its duty, to not consider the matter. In a democracy, everyone was equal, SCOPA needed to hold people to account. It was SCOPA and Parliament’s job to hold the executive to account. Where there seemed to be indications of a political party spending public monies, it was a matter that the Committee should be rigorously prepared to investigate. It was a matter that should be taken up by SCOPA. She agreed with both Mr Lees and Ms Mente. If the decision was not taken at this meeting to invite the President to reveal what he was aware of to SCOPA, she suggested that the right to do so be reserved, in the event that the answers provided were not sufficient.
Mr S Somyo (ANC) stated that even the Member who had brought the matter to the Committee had made reference to a known procedure when such a matter arose. For consistency, the set procedure, which had been followed over time, sought to justify a form of consistency when dealing with matters and entrench a form of predictability in handling different matters. It was vital, there was no time to circumvent a set procedure. The set procedure should be followed and be stuck to. Equality at all times should be expressed and practiced, even in this matter. SCOPA must be seen to follow the procedures appropriately. He suggested that in line with this, the Committee should write to the President and have the matter brought forward. No funds at this point had been found to have gone missing or misappropriated. The Committee needed to find out that level of detail. Mr Hadebe had outlined the starting point, which he appreciated, as it was in line with the Committee’s procedures.
The Chairperson thanked the Members for the constructive input made on the matter. The matter was of a serious nature. As a Committee, the matter must be subjected to a process that was consistent with established and agreed practices of the Committee. The Committee was duty bound to look into matters which had a direct bearing on the public purse. The pandemic of corruption in South Africa required all Members, in their areas of deployment in the three arms of the State, to ensure honesty to their oaths of office. If no one was above the law, then no one must be above the processes of SCOPA. The Committee therefore needed to ensure that it did not compromise what it sought to do with a hurried pace of politicking.
He believed that the President owed the Committee, Parliament and South Africans an explanation about what he knew and did not know. Even if it was a clip of just over two minutes, it had come to the fore and sat squarely on the desk of the President. The Committee needed to create a conducive and enabling environment for the President to do that. The Committee need to exercise its oversight role and hold the executive accountable, including the President. It would be a dereliction of duty, if this was not done. This needed to be done in line with the Committee’s own practices, so that the Committee was never found wanting, compromised or politicking. This was the one Committee in Parliament which needed to rise above the divides and dictates of politics. The President had information that SCOPA required. SCOPA was saddled with escalating, irregular, fruitless and wasteful expenditure across the public space in all three spheres of government. Law enforcement agencies were not moving with the necessary speed and urgency to prosecute. The number one citizen of the Country had information which the Committee needed in order to push back on the frontiers of corruption.
Decision on the Request to Summons the President
Before the proposals were engaged with, procedurally he needed to deal with the request made by Mr Dirks. Mr Dirks’ request was that the President needed to be summoned. The Committee needed to pronounce itself on the matter. He was advised that in order for a summons to be triggered, the matter needed to be decided, not by agreement, but via a vote. He noted that Mr Dirks had raised a matter at the end of his submission that spoke to his voting rights. He had been advised, having received correspondence from the ANC, that were changes of membership to the Committee. Accordingly, the ANC had written to the Speaker; the Speaker had signed off on those changes, the Announcements, Tabling’s and Committee Reports were a formality of process. As things stood, he had been advised that the ANC had affected changes in the following format, Mr Dirks had been discharged as a member of SCOPA, he had been replaced by Ms A Beukes (ANC). The Whip was now Mr Hadebe.
He thanked Mr Dirks for his correspondence and for bringing the matter to the attention of the Committee and raising it with the Committee. He appreciated the presentation made by Mr Dirks. He believed that it was the right thing to do.
Mr Dirks appreciated the opportunity to present to the Committee. He had no regrets writing the letter. It was his decision, and he was fully aware of the consequences.
Ms Mente suggested that the Committee need not use a summons as a starting point. The Committee needed to invite the President to appear before the Committee. One used a summons when a person refused to come before the Committee. She suggested that the Committee write a letter inviting the President to appear before the Committee. She stated that this was a different situation to that of a whistleblower.
Ms Marawu agreed that the President be invited so that the Committee could get more information on the matter.
The Chairperson [Another language spoken 1:57:40].
Mr Hadebe stated that SCOPA, and the ANC in particular, were prepared to take ‘the bull by its horns’ in exercising their mandate to hold anyone accountable for the misappropriation of public funds. All Members had unanimously agreed that a summons should not arise at this stage. There was no justification for that and it was an unreasonable proposal. For the Committee to arrive at an informed decision, the Committee should write to the President, to respond in writing to the allegations. Once the Committee had that information at its disposal, the Committee would then proceed to the next step. Dealing with something in black and white, made it much easier for the Committee to refer to, once the individual was before the Committee. He asked that the Committee not deviate from the norm.
The Chairperson stated that the matter of the summons had been voted on. That request could be suspended. For procedural correctness, he wanted to ensure that it was the Committee’s determination.
Ms van Minnen agreed with Ms Mente. This was a multi-party committee, the Committee did not seek to achieve consensus on decisions, Members should not be afraid to vote, however she agreed that the Committee invite the President to the Committee to answer various questions. She did not think those questions could simply be directed in writing. It could always be escalated should he not come – there were other ways to ensure he appeared before the Committee.
Mr Lees seconded the amendment of his earlier proposal, to include an invitation to the President, as suggested by Ms Mente and Ms van Minnen.
The Chairperson stated that the Committee would, at this point, accept that the summons was a last resort because the President had not shown cause not to cooperate, amongst other things. The Committee had not interacted with the President nor communicated the matter to him. The issue of the summons would be suspended, with the understanding that the Committee reserved the right to make use of it in the event that there was no cooperation.
He proposed that Members’ various suggestions be merged, so that the Committee was structured in its approach. The Committee needed to put this matter to the President and seek his response to it. A written response from the President enabled the Committee to plan correctly for hearings – there was a need for the Committee to receive a statement, explanation or affidavit from the President. The President needed to be advised that, upon receipt of that information, the Committee would make a determination on the process of hearings on the matter.
The President was not the only implicated stakeholder in this matter. SSA needed to provide an explanation, representation or affidavit to the Committee on the matter. If one listened closely to the issues raised by Ms Mente, the Committee needed to advise the Joint Standing Committee on Intelligence, that there was a matter before the Committee that had a direct and material bearing on the SSA. The AG needed to indicate to the Committee in writing about the matter. The Committee agreed that the matter be taken forward as a fact-finding mission to ascertain the relevant facts of it. It should be noted that Mr Dirks had instituted a parallel process in writing to the Public Protector and intended to write to the Deputy Chief Justice in his capacity as the Chairperson of the Commission of Inquiry into the allegations of State capture. He was not sure if it was prudent for the investigation of the Public Protector to take precedence ahead of what SCOPA was doing – which he viewed as ground zero. He suggested having a two-tiered approach whereby a letter be sent and a response received and the President was then invited before the Committee.
Mr Somyo stated that the primary subject of Mr Dirks’s letter, was the President based on the actual recording, which needed to be confirmed and authenticated. The Committee was not sure, at this point, if it needed to call for an inquiry or anything else – except that it needed to determine through the President’s response where it would take the Committee. It would influence what form the hearing would take. He suggested that Mr Hadebe’s proposal not be side-lined. The Chairperson should merge the existing proposals, from Mr Lees and Mr Hadebe, which had clear options based on past practices. The Committee should exercise caution and predictability. The Committee should write to the President to make him aware that the Committee had received that correspondence, seeking a response. Based on that response there might be a need to seek more information in a different form. He suggested the Committee not spread its wings unnecessarily.
The Chairperson stated that the Committee would write to the President to establish facts and an explanation from him on the issue, understanding that the Committee would reserve the right to invite the President at a later stage. At the same time the Committee would inform the other affected parties of the same. It would be dispatched the following day, at the latest the day after that, giving the President seven to ten days to respond. That response would lay the foundation of the nature and shape of the investigation into the matter. Ordinarily, hearings followed submissions. It was in the collective interest of good governance, that when such a matter arose from the President, that a discussion take place through SCOPA, which was charged with the responsibility of watching and protecting the public purse. It was an unavoidable interaction. A meeting would be scheduled and held based on the response given by the President. The Committee would write to SSA and the AG about the matter. The Public Protector should be advised that the Committee was dealing with a particular aspect of the issue that was brought before her by Mr Dirks, to ensure appropriate cooperation and no duplication of activities. The meeting would be scheduled and the correspondence would be drafted to the President.
Ms Mente asked if the Committee would see the content of the letter before it was communicated to the President, as the Committee did not want to be mis-represented in what it wanted to communicate.
The Chairperson confirmed that the letter would be circulated amongst the Committee Members.
Mr Somyo agreed with the way forward.
The Chairperson confirmed that this matter was a key priority of the Committee. The Committee interacted along the length and breadth of the public service; the Committee would need to continue with its other work and responsibilities. The Committee needed to accept the fact that it needed to up its agility in dealing with the President’s Office. Another Committee meeting would likely be scheduled in the coming week. This matter was one that drew the attention of the Country and the attention specifically of the media, the Committee was committed to a transparent process. At the same time, the Committee would not engage in a Public Relations (PR) exercise in managing the matter. The Committee Members should not deal with the matter in platforms that were not this platform’s process. It was a serious matter that required due process.
He assured South Africans that the Committee took its responsibilities seriously as well as that of the independence of the legislature. The Committee was committed to fulfilling its work in line with the Constitution, the Rules of the National Assembly and Parliament and other relevant legislation. The Committee would not deal with the matter on a party-political basis. Everything would be done ‘to shield the Committee from the complications and complexities of party politics.’
The meeting was adjourned.
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