The Joint Standing Committee on Intelligence (JSCI) interviewed the final five of 10 candidates for the position of the Inspector-General of Intelligence (IGI). They were: Mr Smanga Phillip Jele, Ms Nomsa Evelyn Dlamini, Dr Setlhomamaru Isaac Dintwe, Mr Imtiaz Ahmed Fazel, Brig General Phumzile Fongoqa. Some of the matters dealt with included their fitness to occupy the position, independence of the Office of the IGI (OIGI), legislative review, powers of the IGI, human resource capacity of the OIGI, relationship between the IGI and the three cabinet ministers responsible for an intelligence service, cooperation with similar oversight institutions, providing oversight on challenges plaguing the OIGI, of which some were ventilated at the Zondo Commission.
See audio/video for response to interview questions.
Candidate 1: Mr Smanga Phillip Jele
Ms D Kohler Barnard (DA) asked the candidate to spell out the functions, according to the legislation, that the President may designate to the Inspector-General of Intelligence (IGI). To whom would the outcome of an IGI report be reported – the President or the JSCI? If it is reported to the President, does the candidate believe there are certain IGI functions that do not need to be reported to the JSCI?
If the OIGI issues instructions on how to resolve a particular challenge, the three intelligence services and the three Ministers responsible are not obliged to implement those recommendations. What is the candidates take on this? What process would the candidate take to ensure that these instructions become mandatory?
In the candidate’s opinion, does the IGI have access to all covert intelligence information and premises? If so, would the candidate bring such visits and information to the attention of this Committee, whether or not it contained information which may not be released in terms of the Intelligence Services Oversight Act?
The roles of the three services under the three Ministers and the IGI are inevitably adversarial, the candidate has seen what the current IGI has gone through over the last five years. Each entity seeks to protect its own, just like the South African Police Service (SAPS) tried to protect its own from the Independent Police Investigative Directorate (IPID). If appointed and all attempts at conflict resolution fail, what would be the candidate's next step?
The Chairperson referred to section 7(f) of the Intelligence Services Oversight Act: “Provided that where the Inspector-General performs functions designated to him or her by the President, he or she shall report to the President.” He asked if the candidate thought that this was ideal? If one looks at political interference, his understanding is that the OIGI is in some way an operative arm of this Committee. This part of section 7 has been amended. He asked the candidate his views on this. One cannot be an operative arm to the JSCI if there are matters that cannot be told to the JSCI.
Ms D Dlakude (ANC) said that the High-Level Review Panel agreed with the 2006 Task Team Report on Review of Intelligence-Related Legislation, Regulations and Policies that there is a need for a review of the intelligence legislation, regulations and policies, and with the 2008 Matthews Commission Report that the OIGI must be given its independence status. She asked the candidate's views on this. If appointed, what would the candidate do to ensure OIGI attains its independence status?
Over time, the IGI has made recommendations on a number of occasions as provided for in the Intelligence Services Oversight Act. If appointed, how will the candidate improve the enforceability the IGI recommendations and why?
Section 14 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, provides for a joint committee to “summon any person to appear before it to give evidence on oath or affirmation, or to produce documents...”. She asked the candidate what his understanding of section 14 in light of the certificates and information provided by the IGI annually to each Minister.
The Chairperson referred to the enforceability of recommendations, these are not binding recommendations. Binding recommendations are as good as instructions. Recommendations that are not binding means can mean nothing happens. He asked the candidate for remedies about the enforceability of recommendations. The candidate has mentioned the use of workshops but one cannot workshop a thief, preach to them or tell them to change their ways.
Ms M Dikgale (ANC) said that the candidate agreed that there are challenges within the OIGI. Several of the interview candidates who applied for this position are from the OIGI. She asked why he and other candidates from OIGI including the present IGI, Dr Setlhomamaru Dintwe, did not try and resolve those challenges. In presentations to the JSCI, one could hear that there is a serious challenge in the relationships within the OIGI. How would the candidate address this challenge? If the candidate is unsuccessful in getting this position, would he be able to assist the person who replaces the present IGI?
To ensure that the IGI has a greater autonomy, there is an urgent need for a legislative review of the functioning and resourcing of the OIGI. The current configuration as resourced through the State Security Agency (SSA) has demonstrated that it is weakened and leads to the politicisation of the SSA. Does the candidate think that OIGI will function better if the IGI has a Deputy IGI to assist? She asked what legislative amendments are required for the OIGI.
Mr B Hadebe (ANC) said that the candidate’s vision was premised on legislative amendments. He asked how long he has been with the OIGI. The High-Level Review Panel report revealed that there are a number of IGI reports and certificates with damning evidence, findings and recommendations on maladministration and corruption; however, many of those reports and recommendations have not been implemented or have been disregarded. During that period the candidate has been part of this system and he alluded to he could not do anything and that he was on autopilot. The candidate is before the JSCI applying for the position of the IGI. The candidate has witnessed the disregard of the recommendations, witnessed the politicisation of the SSA and witnessed the culture of non-accountability in the SSA.
He expressed concern as a competency area that the candidates are assessed on is stakeholder engagement and relations – how the candidate relates with other role players within the broader intelligence community. The JSCI also assesses the candidate’s vision of the OIGI. It appears the candidate has said that amendments to the Intelligence Services Oversight Act will be the panacea to all the problems. Until such time as the Act is amended, the OIGI will be on autopilot. Even if appointed tomorrow, there is nothing he can do. The candidate does not have other creative means to engage with stakeholders and ensure there is implementation of the recommendations. He asked that the candidate please correct him if he is wrong. Hypothetically speaking, does the candidate imply that if appointed tomorrow, there is nothing he could do to change the situation until such time the Intelligence Services Oversight Act is amended?
He asked if the candidate implied that there has not been any engagement for the past 15 years and he only sees the need to engage now. He asked the candidate to provide a scenario where he has engaged and what was the outcome. Mr Hadebe refused to accept that there have not been any such engagements. The candidate said that “there is a need to engage”– but there have been engagements and there has been resistance. The candidate implied that the OIGI will do the same thing but expect different results. In other words, the candidate's vision includes the old way of doing things; where there are no innovative and creative ideas to deal with the current impasse until the Act is amended.
Mr K Mmoiemang (ANC, Northern Cape) reminded the candidate of the JSCI's interaction with him during the Sixth Parliament Committee induction, when he accompanied the IGI. The challenges raised in that presentation was the lack of regulations, inadequacy of the budget and the lack of implementation of the IGI recommendations. In the candidate’s application, it stated that his designated area of responsibility is the maintenance and adherence to oversight regulations, policies and guidelines. He asked how far he is in addressing those regulations.
A challenge emanating from the July 2021 unrest, if one looks at the President’s report on page 47 and 48, is that the police did not get intelligence to plan its operations, but it was not clear why this was so but a reason may be that at least six members of the senior leadership of Crime Intelligence (CI) were suspended in the period leading up to the outbreak of the violence. Has any work been done by the OIGI about the July 2021 unrest? What has the candidate done as a way of responding to the crisis that has engulfed the country?
Mr D Stubbe (DA) said that the candidate mentioned there was interference by the three intelligence services. He asked for the candidate to provide one example of the interference for each intelligence service. The candidate said that he would focus on the relationships within the intelligence community. The question of interference and the focus on relationships might be interrelated. Would the candidate say that there are serious problems with the relationship between the OIGI and the intelligence community? If yes, can he give examples of such problems.
The candidate mentioned there is no interference from Defence Intelligence (DI) but the CI do not adhere to the activity reports, which is only one example. The OIGI is part and parcel of the SSA budget with a designated budget to the OIGI. Why can the OIGI not have its own budget, perhaps it is something that the JSCI could look into? He asked for an example when the candidate said there was a problem in the relationships within the intelligence community.
Mr G Magwanishe (ANC) referred to the candidate's CV which states that his Bachelor of Laws (LLB) was incomplete and asked if his studies were still in progress. The candidate did his Masters in International Relations but he found it difficult to see a dimension of international relations in the candidate’s vision. South Africa is a member of BRICS and the African Union. The collaboration that the candidate speaks of should be extended to the international level. He asked if it was unfair to expect collaboration should extend to all those bodies. He asked if the candidate had been in a situation where he had to stand up to a senior staff member at a cost or disadvantage to himself.
Is there a difference between the doctrine of national security and the doctrine of state security? What is the effect of Chapter 3: Cooperative Governance of the Constitution on the work of the IGI? In which chapter of the Constitution is the principle of transparency?
The Chairperson said the chapter question was unfair as one can just google to find the answer.
Dr M Ndlozi (EFF) said that the meeting should be chaired in accordance to the rules. Members should under no circumstances give the impression that the candidates are being shielded from proper interrogation. There are no grounds for the Chairperson to assess if a question of that nature is fair or not. The Chairperson can at least lead the Committee according to the rules, or otherwise let the candidates say that they do not know or do not remember.
The Chairperson replied that he should determine if the process is fair or not. He did not see the purpose of the question and it is within his rights to give the candidate a chance to answer or not.
Mr Magwanishe clarified that the chapter the candidate correctly identified is a foundational clause that directs the work of the IGI in relation to this Committee and to the principle of transparency, which is why he asked the question. The Chairperson stopped the candidate when the candidate already mentioned the correct section.
The Chairperson said that as a matter of principle, he did not see it as being fair to question the candidate on the chapters of the Constitution.
Dr M Ndlozi said that the person who applies to be a committee chairperson know the rules that govern it. A person who wants to be IGI should know the relevant constitutional clauses that apply. What Mr Magwanishe has done is to tease the candidate on his competence of the relevant sections which is highly important. He cautioned that it is not the Chairperson's place to filter.
Dr Ndlozi asked the candidate why his CV did not have timelines. On page of the candidate's CV on conference presentations, he had drafted a keynote address for the former Minister of Intelligence, Mr Ronnie Kasrils. Why would refer to another person’s presentation, whether he drafted it or not, it was not his presentation. He asked if this was not being dishonest.
Dr Ndlozi asked when the candidate was in the United States (US) and what he did there. He asked if he has ever been trained in the US and if the training programme he attended was organised by the Central Intelligence Agency (CIA). What sort of innovations coming out of artificial intelligence could the OIGI employ to strengthen cyber-security? The candidate has been in the OIGI for 15 years and has applied for this position three times. He asked the candidate what would be his cyber-security vision if appointed tomorrow.
The Chairperson asked if there were follow-up questions.
Dr Ndlozi asked the candidate if it was fair for the Committee to recommend him as the next IGI when he has been at the OIGI for so long. The JSCI wants to inspire South Africans that something different is going to happen. He asked why the JSCI should recommend him. What difference will the candidate make as the IGI, particularly since he did not even have a cyber-security vision? The majority of intelligence and intelligence threats with the fourth industrial revolution relate to the internet of things, artificial intelligence, cybernetics but the candidate has said nothing about this. This is an opportunity for the candidate to market himself so he may be accepted by South Africans and that there is going to be a renewed confidence in the oversight capabilities of the OIGI.
Mr Hadebe said that in order to be given the benefit of the doubt, the candidate should be able to say what has been learnt, what has been implemented and what he would be will bring on board. Trying becomes a futile exercise if all one does is constantly fail.
Ms Kohler Barnard said that the State Security Minister tried to stop the Acting Director-General of the SSA and the IGI from giving evidence at the Zondo Commission. Both went ahead and did it anyway. If the candidate had been subpoenaed to give a testimony before the Zondo Commission, would he have listened to the Minister or have given evidence?
Articles on state security have been on the front pages of the papers for the last two years, and sometimes week after week. There are two possible reasons for wanting to leak something to the papers, which is either to backstab someone, or the other possibility is if one went to every other possible entity but nothing happens and it then becomes a form of desperation. Does the candidate think that those leaks damaged the three entities or were in the public interest?
Mr Mmoiemang asked that the candidate clarify his comments on the OIGI submitting the regulations to the JSCI in the Fourth Parliament because the lack of regulations was identified as a critical matter in 2019 during the Committee's induction. He referred to the candidate’s CV and asked for clarityas the Bachelor of Arts (BA) Law degree was awarded on the 27 July 1996 and the Masters in International Relations was awarded in November 1997. The requirement for a Master’s degree is an Honours degree and asked if the candidate did not have an Honours degree.
Ms Kohler Barnard referred to the candidate’s response to the question about giving evidence at the Zondo Commission. Did he suggest that someone in the position of IGI cannot tell the difference between what he may and may not release to the public? She had heard nothing in the IGI’s testimony that would have compromised anyone. He told the truth and said what he had seen and what he knew, but he certainly did not step over the line and endanger anyone. Why does the candidate think that the IGI should have asked this Committee's permission to submit to the Zondo Commission subpoena?
Ms Nomsa Evelyn Dlamini
Ms Dlakude said that Section 14 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, provides for a joint committee to “summon any person to appear before it to give evidence on oath or affirmation, or to produce documents”. She asked for the candidate's understanding of Section 14 in light of the annual certificates and information the IGI provides.
She asked the candidate to elaborate on the reasons she has moved from one job to the next. The High-Level Review Panel agreed with the 2006 Task Team Report that there is a need for a review of intelligence related legislation, regulations and policies, and with the 2008 Matthews Commission Report that the OIGI must be given its independence with its own administration and budget. She asked her view on this matter. If appointed, what would the candidate do to ensure the OIGI attains independent status?
Over time, the IGI has made recommendations on a number of occasions as provided for in the Intelligence Services Oversight Act. If appointed, how does the candidate think she would improve the enforceability the IGI’s recommendations and why?
Ms Kohler Barnard asked if there was a material difference between the candidate’s old CV and the new CV, that she felt the need to send in the new CV. The candidate was special advisor to the former State Security Minister during the July 2021 rioting before the Minister was removed, which is why it is assumed that the candidate is now unemployed. She asked if she was the one advising the Minister on how to handle the whole debacle of one minister throwing the other minister under the bus or if the candidate perhaps advised the Minister who did not take her advice. What was this situation because from the outside it seemed utterly chaotic?
She asked the candidate to spell out the functions that the President may, according to the legislation, designate to the IGI. If appointed, would the candidate give the reports to the President or to this Committee? What are the IGI’s functions for reporting to this Committee?
If the OIGI issues a recommendation, it currently seems none of the ministers or directors-general are obliged to implement that recommendation. What would the candidate's plan be to ensure that those recommendations are enforced in the future?
In the candidate’s opinion, does the IGI have access to all covert intelligence information and premises? If so, would the candidate bring reports of such visits to the attention of this Committee, in terms of the Intelligence Services Oversight Act?
Dr Ndlozi asked the candidate if she worked at the South African Revenue Service (SARS) or if she worked for the SSA and managed SARS during 2008 – 2014. He asked how she got the job and who had interviewed her for it. He asked if she had worked with Mr Ivan Pillay. Were there any covert intelligence collection activities in the unit the candidate had worked in? SARS employed the candidate to do vetting; he asked if this would normally be done by the SSA. Does the nature of vetting employ any intrusive methods?
The candidate was a special advisor to the former State Security Minister. He asked the candidate why the former State Security Minister did not take her along to the Department of Public Service and Administration, as that is normal practice. Does the candidate recall the moment when the Minister did not oppose the SARS Rogue Unit report be set aside by the High Court?
He asked the candidate if it was legal for organs of the state to establish intelligence units, whether these intelligence units are doing covert or non-covert activities and use intrusive methods, without the permission of the President? What kind of security threats would arise out of organs of the state having their own intelligence units? What kind of security threat would this pose to the country?
Dr Ndlozi said the candidate has worked with the former State Security Minister, Ms Ayanda Dlodlo, who has failed in his view. He thinks that the Minister failed with distinction and that the riots are a case in point. He asked the candidate why the Committee should appoint her as the IGI. Does the candidate not think that by appointing her, the JSCI would be exacerbating the lack of confidence the public already has in the entire intelligence community?
Mr Magwanishe said the candidate’s CV shows she has been trained in a number of countries. He asked her to explain how long she had undergone training in each country. The candidate mentioned that the IGI approached the former State Security Minister about the IGI budget. What did the candidate advise the former Minister?
What is the effect of Chapter 3 of the Constitution on the work of the IGI? Are there differences between the doctrine of state security and the doctrine of national security? At any point, did the candidate have a discussion with the former Minister on the doctrine of state security, because the name of the Department still refers to state security? He asked the candidate if she had ever been in a situation where she needed to make a decision or challenge authority at a great risk to her own sense of comfort.
Mr Stubbe referred to the candidate’s CV and asked if she left the country in 1986 and returned in 1993. In 1998, the candidate was in Moscow and in 1991 in Stockholm. He asked how long each stay was. Where did the candidate work between 1998 and 1991? The candidate mentioned that she had a vision right from the start and that some entities were ailing organisations and described the Agency as a “sinking ship”. What strategy would the candidate implement to stop that sinking ship? What did she mean by "sinking ship"?
The Chairperson referred to the Intelligence Services Oversight Act section 7(f): “Provided that where the Inspector-General performs functions designated to him or her by the President, he or she shall report to the President.”. He asked if the candidate thought that this was ideal? His understanding is that the OIGI is in some way an operative arm of this Committee.
Mr Mmoiemang referred to the candidate's CV stating that she was part of the team of four that produced the draft General Intelligence Laws Amendment bill, with proposals for the future architecture for the civilian intelligence of the country. He asked that she explain the attributes of this proposal.
In terms of stakeholder relations, what was the candidate’s observation of the relationship that existed between the IGI and Musanda? Did the relationship between the SSA and IGI fall under the candidate’s competency? It could not have been just the IGI being proactive – it is a two-way process. Does she not think as a special advisor that she should have advised the Minister to also be proactive?
Mr Hadebe said that the Committee is looking for a citizen that is fit and proper. The fit and proper aspect speaks to honesty, integrity and impartiality. Section 18 of the Constitution promotes freedom of association and section 19 guarantees political rights; as such this Committee cannot prejudice the candidate based on their political affiliation. However, based on the findings and recommendations on the High-Level Review Panel report, there was politicisation and factionalism within the Agency. How did the candidate manage to insulate herself and how will she insulate herself if appointed?
The Chairperson asked the candidate about her opinion on the political affiliations within the Committee.
Mr Hadebe said that in the candidate’s opening remarks she described the Agency as an ailing organisation and described it as a sinking ship. This means that currently as things stand it is a Titanic. She further said there is a need for capacity for threats and risk assessment and to identify areas of focus – and that this cannot be done without strong counterintelligence capabilities. The candidate’s role for the past two years was as a special advisor to the former Minister, with the core business of intelligence and counterintelligence. He asked if she thought that a lot could be achieved in two years. What has stopped the candidate from implementing this as a special advisor to the Minister? If there were bottlenecks and challenges, what were those challenges? The candidate is applying to be IGI who would be expected to monitor and review activities of intelligence and counterintelligence. There is an expectation that what the candidate has identified could have been implemented within that two-year period, as the candidate agreed a lot could be achieved in two years.
Mr Stubbe noted that the candidate spoke of challenges that directly relate to the SSA, but the candidate is here to speak about what must transpire at the OIGI.
The Chairperson agreed and said that the questions should be directed in that way.
Mr Hadebe replied that the Committee should also be mindful that the powers and functions of the IGI are to monitor and review activities of intelligence and counterintelligence, they are interlinked.
The Chairperson said that all he can do is caution, as he does not know which question will arise.
Ms Dikgale said that the OIGI is to deal with submissions where individuals may submit anonymously. How will the candidate satisfy the two parties involved in such submissions?
She noticed that there was a judgment in civil claim made against the candidate. To her, it appears that the candidate had shifted the blame – it is uncertain if the marriage was in or out of community of property. If the marriage was in community of property then why did the candidate write only her name and not both names? If the candidate wins this position then how will this change for her?
To ensure that the IGI has a greater autonomy, there is an urgent need for a legislative review of the functioning and resourcing of the OIGI. The current configuration resourced through the SSA has demonstrated that it weakens and leads to the politicisation of the SSA. Does the candidate think that the OIGI will function better if the IGI had a Deputy IGI to assist in terms of the law?
The High-Level Review Panel Report found that the OIGI should be given independent status. In the candidate’s opinion and based on the current legislative framework, what legislative amendments are required for the OIGI?
Dr Setlhomamaru Isaac Dintwe
The Chairperson asked the candidate to tell the JSCI a bit about himself and his background. He asked the candidate about the challenges in the OIGI and how he thinks that it could be corrected.
Mr Stubbe said that the vision that the candidate had to transform and put new systems in place was more or less the same vision he had when he applied for this position the first time. What did the candidate do to achieve that vision? What successes did occur?
In the deliberations with other candidates, it was put to them that the OIGI is not in charge of its own budget. If there were any problems, the Committee did not hear about this. The DI had huge problems, especially the building that they utilised, but the DI brought this concern to the Committee so that it could act on it and ask Parliament for more money. The JSCI did not hear that the OIGI did not have sufficient funds to move forward. There are vacancies in the OIGI and he thinks this is due to lack of budget. Why did he not approach the JSCI for help with this?
Mr Mmoiemang referred to the importance of stakeholder relations, considering that collaboration of the Chapter 9 institutions is of critical importance as well as the imperative of cooperative government. There has been a concern raised about the OIGI’s partnership with IPID, in terms of the work that OIGI does in overseeing the work of Crime Intelligence. The concern is with IPID having access to information it would have not necessarily had access to. What could be done to improve this stakeholder relationship?
The OIGI partnership with the Public Protector eventually led to the Office of the Public Protector using the 2014 Report of the IGI, which inevitably led to the court settlement of that dispute. Does the candidate think that there is a need to review this partnership, so whatever problems such an institution has should not muddle the independence, efficiency and effectiveness of the IGI?
Surprisingly, most of the applicants are from the OIGI. He asked if there is a succession plan among the colleagues. How is the relationship between the candidate and Adv Jayashree Govender, given the attention that arose over "the case that was settled"?
Mr Magwanishe asked the candidate if he has a vetting clearance certificate. He asked if the security clearance that was withdrawn was reinstated. He asked if the settlement and letter from the Minister did not suggest that the candidate still has do go through an appeal process to have the clearance certificate reinstated permanently.
There are quite a number of candidates from the OIGI, which means that the candidate is contesting his colleagues. He asked the candidate for his view on this.
Dr Ndlozi referred to Section 7(10) of the Intelligence Service Oversight Act, and read that there must be compliance with the security requirements of the intelligence services. After four years of the candidate being in the Office, why has his security clearance not legitimately been reinstated?
On the candidate’s treatment of sensitive information, classified or not, the candidate went on television and spoke about the qualifications and investigation of Adv Mahlodi Muofhe. Dr Ndlozi questioned why the candidate would do that. Why would he speak about someone who is going through an investigation due to the receipt of falsified information? Is that not careless?
Dr Ndlozi asked if he gave the preliminary Principal Agent Network (PAN) report to Mr Jacques Pauw. He reminded him that Mr Pauw said that the candidate had given him the report.
The candidate has an opportunity to clarify a public objection received from former Director General Fraser. It stated that the candidate lied about an accident he had while driving an official state vehicle in 2017. The candidate lied in a court affidavit on the withdrawal of his security clearance. The candidate lied in his testimony at the State Capture Commission in 2021 about this. He asked the candidate to clarify these statements.
He asked the candidate if the OIGI had not withdrawn the validity of its 2014 SARS “Rogue Unit” report. Does the OIGI stand by the validity of the “Rogue Report”?
The Chairperson asked that the candidate repeat his last response because he was too legalistic. He asked if the validity of the “Rogue Report” was not withdrawn because of technical errors.
Mr Hadebe quoted that “absence of evidence does not mean evidence of absence”. He asked if the candidate agreed that failing to find any evidence to support the existence of something is not a reason to increase one’s confidence that it does not actually exist. Does the candidate agree with the content, findings and recommendations of the High-Level Review Panel Report? What does it say about the candidate’s security clearance withdrawal?
Within the OIGI, there are processes to review concerns of illegality, especially the withdrawal of the candidate’s security clearance. The High-Panel Review Report raises concern in the manner in which the candidate addressed the matter.
Mr Hadebe fully accepts it was the candidate's legal right to approach the court, but that on its own speaks to the candidate not having confidence in internal processes. He asked if he was not confident enough in internal processes. What led the candidate to neglect internal processes and go straight to court to deal with this matter? He reminded the candidate that he had already agreed to the content, findings and recommendations of the High-Level Review Panel Report.
Mr Hadebe is trying to ascertain if the candidate still has interest in serving as the IGI. The candidate told the Committee that he has done his part, and that he has encouraged his subordinates to apply. His assessment is that the candidate no longer has an interest to serve. Why should the Committee think that the candidate still has interest in serving, given that he no longer has faith and trust in internal processes? Does the candidate have faith in his internal systems?
Mr Hadebe asked how the candidate can go about sharing declassified intelligence information during his appearance in the Zondo Commission, as per the Act?
Ms Dikgale said that the candidate mentioned that he encouraged his colleagues to apply for this position. However, in yesterday’s interview Ms Makhobotloane said that she used him as a reference and that she did not know that he was also applying. She asked him to clarify if he advised his colleagues to apply.
In the candidate's remarks he touched on transparency. The way he dealt with one anonymous submission was not pleasing. She knows that the media pushes people to talk and to gossip, but she questioned how he allowed them to interview him while he was still busy investigating the submission. He spoke about it before he even got the results of the investigation. The person who anonymously made a submission about falsified academic records was safe but not the person and family of the person accused of that.
In the candidate’s application he stated that if he were given another chance, it would be a continuity for him and his team. How will the candidate improve stakeholder relationships? Does the candidate think that the OIGI will need a Deputy IGI?
Ms Dlakude recalled that the candidate came to the Committee several times with certificates, and that there were complaints by ministers who raised dissatisfaction in the way he does things. The candidate said that he would directly contact the person dealing with the information he wanted. The Committee advised the candidate to try and build those relationships with the ministers, because while doing oversight work, the IGI should also advise on how the ministers could improve. She asked about the status quo on this.
The candidate has been in office since 2017 and he will still be there until March 2022. She asked what more does the candidate think he could offer to improve the status quo of the Office. In yesterday’s interviews, the Committee heard that the OIGI does not have Exco meetings or investigation briefings, and that what one person investigates is not known by the other managers in the Office. She asked what will happen where the person investigating has a heart attack and dies. Would the new investigator have to start from scratch? Was that not a waste of resources and time? What is the reason for the OIGI not having briefings on investigations?
Ms Dlakude noted that the candidate said he encouraged his OIGI colleagues to apply for this job, but the concern is that some of these candidates have been in the Office for quite some time. The candidate mentioned that on his arrival in 2017, some mechanisms were not in place such as the complaints handling mechanism. By encouraging his colleagues to apply, does the candidate think that they would make an impact in this position? This is given that they have been at the Office for a long time whereas the candidate came in 2017 and did make some changes.
The High-Level Review Panel agreed with the 2006 Task Team Report, that there is a need for a review of intelligence related legislation, regulations and policies, and with the 2008 Matthews Commission Report that the OIGI must be given independent status. What has the candidate done since 2017 to try to attain that independent status? If appointed, what would the candidate do to ensure that independent status is attained?
Ms Kohler Barnard said that she watched the candidate stand up to Director General Fraser who pulled his security clearance, and he stood up to the ministers who tried to oust him, one after the other. She asked if such actions were important to protect the position of the IGI. She questioned if former IGIs had faced similar attacks over the years. To some extent, it was framed by the media that the candidate and former Minister Dlodlo had a major disagreement about the candidate giving evidence to the Zondo Commission. She asked if the former Minister had attempted to stop the candidate from doing so just as she had tried to stop then acting Director General Jafta from doing so. She had noticed similar instances happen to the head of IPID. It is the nature of the beast, and the nature of an oversight entity.
The candidate said that he was advised to draw up legislation to restructure and strengthen the independence of the OIGI. She asked if the candidate has done so.
She asked the candidate if he thought that the leaks in the newspapers putting the SSA, CI and DI on the front pages over the last two to three years have been necessary. Have those leaks enhanced transparency or have they been damaging to those three entities?
She asked for the candidate’s opinion that Mr Arthur Fraser was removed as State Security DG but then made Director General of Correctional Services. She only understood recently that the criminal charges that were laid were stopped by the PAN mechanism. The former minister brought his right-hand man in the PAN project, back from a three year suspension and promoted him within. She sees this as quite a threatening move to bring back the same process. What is the candidate’s opinion of this and how should it have been dealt with?
The Chairperson asked if there were follow-up questions.
Dr Ndlozi said that he finds the candidate's treatment of complaints very dangerous and an infringement of basic rights, particularly the right to dignity. It means that Dr Ndlozi could bring mere gossip to the OIGI and the candidate would take it to the platform without even consulting him and say that he is indeed investigating the falsification of results. This is not right and not befitting of an institution of the state, even police stations do not work like that. The dignity of a person should reign supreme in the treatment of information that is received. He finds it disturbing the candidate has maintained his reaction to this. He thought the candidate should have the opportunity to redeem himself of this reaction.
Mr Hadebe said that he is still concerned about the candidate’s ability to manage stakeholder relationships and his understanding thereof. At first, he thought that it was genuine for the candidate to encourage his colleagues to apply. He asked if the candidate had approached his colleagues after he had changed his mind and decided to apply himself. The candidate had first said that he “had done his part”. It cannot be that the candidate changed his mind and applied only during the re-advertisement of the post.
Mr Imtiaz Ahmed Fazel
The Chairperson asked the candidate to tell the Committee a bit about himself and his background. What is his vision for the OIGI? How could the OIGI be improved? If appointed, how does the candidate intend to correct the challenges in the OIGI?
Ms Kohler Barnard said that in 2014, the candidate was sent on secondment from the SSA to the Department of Public Works. She asked if this was still the norm and questioned why the SSA would send people into other ministries?
She asked the candidate to spell out the functions, according to the legislation, that the President may designate to the IGI. To whom would the outcome of an IGI report be reported – the President or the JSCI? If it is reported to the President, does the candidate believe there are certain IGI functions that do not need to be reported to the JSCI?
If the IGI issues instructions on how to resolve a particular challenge, none of the intelligence services or their ministers are obliged to take those instructions on board. How would the candidate intend to deal with this to make the IGI recommendations binding?
In the candidate’s opinion, does the IGI have access to all covert intelligence information and premises? If so, would the candidate bring reports of such visits to the attention of this Committee, in terms of section 7 of the Intelligence Services Oversight Act.
Ms Dlakude said that Section 14 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, provides for a joint committee to “summon any person to appear before it to give evidence on oath or affirmation, or to produce documents”. She asked the candidate for his understanding of Section 14 in light of the annual certificates and information the IGI provides.
The High-Level Review Panel agreed with the 2006 Task Team Report, that there is a need for a review of intelligence related legislation, regulations and policies, and it agreed with the 2008 Matthews Commission Report that the OIGI must be given independent status. What has the candidate done since 2017 to try to attain that independent status? If appointed, what would the candidate do to ensure that independent status is attained?
It is clear that the candidate has worked in many departments and in 2014 he was seconded from the SSA to the Department of Public Works. She asked why he was interested in going back to the environment of the spooks.
Ms M Dikgale said that the candidate had worked in intelligence oversight and governance of state security. If appointed, how will the candidate improve the relationship of his team and how will he relate to the various stakeholders?
The High-Level Review Panel Report found that the OIGI should be given indpendent status. In the candidate’s opinion and based on the current legislation, what legislative amendments are required for the OIGI?
To ensure that the IGI has a greater autonomy, there is an urgent need for a legislative review of the functioning and resourcing of the OIGI. The current configuration is resourced through the State Security Agency (SSA) and has demonstrated that it is weakened and leads to the politicisation of the SSA. Does the candidate think that the office will function better if the IGI had a Deputy IGI to assist in terms of the law?
The Chairperson agreed with the candidate’s comment that the IGI certificates do not seem to be published for the public. Even the report that this Committee writes to Parliament is watered down to some extent. How does the candidate suggest that this reach the public? The public does not know anything about the intelligence services and does not even know how they operate. He suggested the IGI reports and certificates be published in a format that is readable by the public.
Mr Hadebe said that the last time he met virtually with the candidate was with the Standing Committee on Public Accounts (SCOPA), dealing with the BRICS saga. One of the challenges encountered in SCOPA is the stalling by departments to punish those alleged to be culprits. It has become very clear that some senior managers in departments have perfected the art of avoiding disciplinary hearings. He asked the candidate what he has done to showcase that he is not tolerant of maladministration and corruption. What will make the JSCI have confidence that the candidate can deal with corruption?
He liked the candidate’s vision in his opening remarks; however, the candidate also stated that he was part of the setting up of the OIGI, and was one of its first employees. He asked if it was correct to assume that the candidate contributed to the regulations and the legislation that accompany the Office. The candidate also stated that the OIGI is located in the wrong place and this compromises its independence. As a person who was part of the establishment, why did the candidate not foresee this as a challenge? He asked if it would be correct to say that the candidate contributed to the quagmire of the Office, as he is someone who contributed immensely to its establishment.
What is the candidate's understanding of monitoring compliance and reviewing the activities of the services for intelligence and counterintelligence. In the aftermath of the July 2020 unrest, what would the candidate have done as the current IGI?
Mr Mmoiemang said that given the candidate was at the centre of the conceptualisation of the OIGI implementation and the position he had occupied, it can be assumed the candidate can make a reflection on the work done by previous IGIs. The first being the period of the hoax emails, the second period with former IGI Faith Radebe where there seems to have been a close proximity between the OIGI and SSA. The third period is with the current incumbent, with the tension between the Office and the former DG. What could be behind the variance in the relations between the OIGI and the Ministry. Could this variance be attributed to the proximity between OIGI and the Executive – between OIGI and the decision makers?
Mr Stubbe referred to the candidate’s employment history between 2004 – 2012. He asked the candidate to clarify his reference to being the Deputy DG, because the terminology is not used nowadays. The relationship and the reporting alliance between the Ministers and the IGI are key for stability and efficiency of the OIGI. How would the candidate strengthen the OIGI under the current legislation?
Mr Magwanishe said the candidate mentioned he would advocate that the OIGI must be supported by a government component. The challenge to this approach is that the OIGI derives its function from Section 210 of the Constitution. The appointment must be 75% majority of the House in a joint sitting and the Intelligence Services Oversight Act would require the Office to act independently. How will the candidate enhance the stature of the Office if it is just a government component?
The Chairperson referred to the candidate’s employment history from 1997 until 2002, where the candidate was a consultant to the Ministry of Intelligence Services. He asked the candidate what he did as a consultant.
Dr Ndlozi asked the candidate if he was in the Benoni Youth League in 1993 and if he remembered Mr Magwanishe who was in the same election strategy and canvassing team for the ANC Benoni Branch. He asked if the candidate worked with the late Steve Tshwete. He asked the candidate if he knew TikTok. TikTok has about nine million users in South Africa. What are the cyber-security threats that it poses? What would be a framework to investigate some of the cyber-security threats that it poses?
Mark Zuckerberg appeared before the US Senate to speak about some of the important things that the candidate has mentioned about Facebook. What are some things that could be done to avert these challenges? What should the users or platform owners be subject to in order to prevent data harvesting, pornography, or to prevent foreign agencies from opening accounts and operating in a no man’s land? What are some of the mechanisms to avert these cyber-security threats?
There are interesting innovations in artificial intelligence which poses both benefits and threats to banking systems, electricity and also to OIGI information protection. If appointed, what artificial intelligence tools would the candidate take advantage of to build a defence for the OIGI? There are a lot of innovation tools coming out in artificial intelligence and cyber-security. There are big cyber security concerns within the OIGI, but the artificial intelligence innovations could be utilised to avert those concerns. How would the candidate protect the OIGI from cyber attacks? He questioned why the Committee would appoint a candidate who does not have a vision for cyber security.
The Chairperson asked if there were any follow-up questions.
Dr Ndlozi said that a lot of our world is becoming about algorithms, such as banking systems, how we use electricity and in the last two years Parliament has conversed in the internet space. It is not true that the OIGI does not have to protect itself against artificial intelligence attacks. The IGI could be attacked and robbed of sensitive classified information, which can be used to destabilise the country. He asked the candidate to respond to Dr Ndlozi's disappointment that the candidate would think that the benefits of artificial intelligence innovation is not important for the OIGI.
Brig Gen Phumzile Fongoqa
The Chairperson asked that the candidate to tell the panel about himself and his background. What is the candidate’s vision for the OIGI? How could the OIGI be improved? If appointed, how does he intend to correct the challenges in the OIGI?
Ms Kohler Barnard referred to the candidate’s declaration and asked that he explain the judgment against him in a civil claim. She confirmed if he had top security clearance.
She asked the candidate to spell out the functions that the President may, according to the legislation, designate to the IGI. If appointed, would the candidate give the IGI reports to the President or to this Committee? What are the IGI’s functions for reporting to this Committee?
Ms Dlakude said that the High-Level Review Panel agreed with the 2006 Task Team Report on Review of Intelligence-Related Legislation, Regulations and Policies, that there is a need for a review of intelligence related legislation, regulations and policies. It also agreed with the 2008 Matthews Commission Report that the OIGI must be given independent status with its own administration and budget. She asked the candidate for his view on this. If appointed, what would the candidate do to ensure that the OIGI attains an independent status.
Ms Dikgale said that the OIGI does not have a Deputy IGI. In the candidate’s opinion and based on the current legislation, what amendments are required for OIGI to have a deputy?
Mr Hadebe referred to the High-Level Review Panel report on the SSA and said that he is sure that the candidate would agree that the relationship between the OIGI and that of the services is antagonistic. If appointed, what measures would the candidate put in place to ensure that the stakeholder relations are improved in order to execute the powers and functions of the IGI as enshrined in the Intelligence Services Oversight Act? He has raised this concern because there are a number of reports and recommendations in the form of certificates that have not yet been implemented, some dating back to ten years ago.
Mr Mmoiemang referred to Section 7(6) of the Intelligence Services Oversight Act on the accountability of the IGI. He asked if the IGI reports to the JSCI only on the administrative functioning of OIGI or reports on the IGI functions described in Section 7.
Mr Stubbe referred to Section 7(9) of the Intelligence Services Oversight Act which determines that no access to intelligence, information or premises may be withheld from the IGI on any grounds. He asked the candidate if this meant that no access to intelligence, information or premises may be withheld by any of the intelligence services as a general rule.
Dr Ndlozi thanked the candidate for his service to the country, especially being far away from family. The candidate’s CV states that he was baptised with combat fire and battle experience during the skirmishes against UNITA in 1977, he asked if this was meant to be 1987. It states that the candidate attended military specialisation training in Yugoslavia in 1988 and Eastern Germany in 1989. At the same time the candidate served as an administrator of the plot in Luanda at the end of 1989 to 1990. During 1988 to 1989 it also states that the candidate participated in organising the solidarity student actions in and around Mdantsane and East London. He asked the candidate to clarify the timeline because it does not make sense to be in different places during the same time period.
The meeting was adjourned.
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