In a virtual meeting, the Standing Committee on Public Accounts discussed the State Security Agency planning proposal, which was a plan of action to deal with allegations around the channelling of public funds into ANC political campaigning and for other unauthorised purposes.
Some Members were concerned about SCOPA venturing into the mandate of the Joint Standing Committee on Intelligence (Intelligence Committee), a unique parliamentary committee that was specialised to deal with matters related to intelligence. The mandate of that Committee expanded to oversee the budget of criminal intelligence, defence intelligence and the State Security Agency. That Committee reported to Parliament on the financial management, administration and expenditure of the aforementioned three agencies. Its members were vetted and sworn into secrecy.
Members suggested that the Chairperson meet with the Chairperson of the Intelligence Committee firstly before chartering a way forward. Another Member agreed and added that any person who considered themselves a conscious South African patriot would seek permission for the declassification of certain documentation overseen by the Intelligence Committee. Other Members however commented that the Intelligence Committee did not pay attention to the spending of public money, as evidenced by the confusion between the interests of the country and the interests of a political party. The legal opinion did not indicate any hindrance in SCOPA exercising authority over Auditor-General reports.
One Member commented that he did not really care what the [Chairperson] of the Joint Standing Committee on Intelligence felt or thought, and asserted that the Committee needed to decide for itself whether it had a legal mandate to look at the public account of a committee of Parliament. Other Members did not feel comfortable with this statement and said that the insinuation that the Intelligence Committee was not doing its work undermined “other parliamentary committees without even knowing”. The Chairperson reminded Members that the Committee agreed to pursue its work in consistence with the legal advice. He reminded the Members that it was the Committee that said it would look into the financial management of the State Security Agency. There was no reason why SCOPA could not close its meeting for purposes of conducting financial oversight over the Security Agency. Such closure of a SCOPA meeting was provided for in National Assembly Rule 184.
The Committee had to ensure its processes were watertight. The Chairperson requested written submissions on the matter so that the issue could be taken on advisement for it to be properly be reviewed by the Committee, to avoid a protracted debate on the matter.
Opening Remarks by the Chairperson
The Chairperson opened the virtual meeting, welcoming everyone in attendance to the meeting. The Committee would adopt the meeting minutes first, thereafter adopt the Oversight Report from the Committee’s oversight visit to the South African Post Office (SAPO) in Johannesburg and Pretoria, from 02 to 03 December 2021. The meeting would then move on to a briefing by the State Security Agency (SSA), on its “roadmap”. Members had seven days to make written submissions in respect of the SSA matter, following some concerns that were raised around the mandate of SCOPA. The Passenger Rail Agency of South Africa (PRASA) annual report had been submitted and tabled to Parliament.
The week in which the Committee intended to visit Eskom for oversight purposes had been reconfigured for parliamentary work. Therefore, no oversight would take place in that particular week. The Committee would wait on the release of new dates, and would thereafter undertake the oversight visit. Oversight visits were not being approved at present due to the ‘Motion of No Confidence’ Vote that is to take place for President Cyril Ramaphosa and Cabinet, as well as questions posed to Deputy President David Mabuza. The Committee would consider which matters to address during the Tuesday and Wednesday of the ‘canceled oversight week’ and make maximum the use of its time.
The Chairperson then handed over to the Committee Secretary Ben Kali to take the Committee through the minutes.
Consideration and adoption of minutes
Committee Secretary Ben Kali started with the minutes on 02, 03 and 10 February 2021, in no particular order.
The Chairperson clarified that the minutes mentioned were corrected and just needed adoption.
Mr Kali confirmed that they were corrected and just needed adoption.
The minutes were adopted without amendments.
There were ten sets of minutes in 2022, between 25 January 2022 and 09 March 2022, which were adopted.
Report of the Committee on Public Accounts on its oversight visit to the South African Post Office (SAPO) in Johannesburg and Pretoria, from 02 to 03 December 2021
The Chairperson said that the Committee would go through the draft Report page-by-page and then adopt it. The Report would then be published in the ATC.
Mr A Lees (DA) said that he had not checked the figures and statistics within the Report, and asked whether someone had seen to those being correct.
The Chairperson assured the Members that he, along with the Committee Secretaries, had gone through the Report and checked the figures. The figures were “fine” and amendments could be made where required. There were serious reservations about the Board and its capacity to meet the challenges at the Post Office. At the end of the meeting, the Deputy Minister (DM) had cited that a review would be conducted – something along the lines of “ascertaining the competence, skills and expertise of the Board, including an analysis and audit by the Department, and not the DM”.
Mr Kali was asked to place the observation of having “an audit of the skills and expertise of the Board [by the Department]” under the Recommendations section of the report.
Mr Lees said that in the Committee’s recommendations reference was made in respect of the recovery plan for the Post Office. He asked whether this was present in the recommendations, coupled with the requirement for submission of the Recovery Plan to the Committee. The recommendation listed in bullet-point “i”, on page 21 of the SAPO Report, was critical in respect of the “unprecedented event yesterday”, where a Portfolio Committee was closed to the public to discuss the Post Office recovery plan. He said that this was completely illegal. The Committee had asked for the recovery plan. The request needed to be strengthened so that the Department, Ministry and Post Office could not hide the recovery plan from the Committee. South African Airways (SAA) previously fell under the Finance Committee. There were attempts “to close the Committee to the public on the basis of the competitive nature of the recovery plan”. There were objections to this, and the recovery plan was ultimately made public. There should not be secrecy in respect of presentations to Parliament. The recommendation under section “i” should thus be strengthened to prevent any attempts to hide this information from the Committee when the time came.
The Chairperson said that the Committee would continue on the trajectory of its modus operandi of transparency. Separation of powers should be maintained within Parliament. The Committee would continue with its normal processes. The turnaround strategy and the revised strategic plan were wanted by the Committee. Once the SAPO Report was sent to Parliament it would be looked at in conjunction with the annual report, the audit action plan and relevant documents.
Mr Lees clarified how he had wanted the recommendation in section “i” to be strengthened.
The Chairperson said the SAPO Report had been circulated to the Members, and an attempt was made to capture the essence of the oversight.
The Report was adopted.
The Chairperson noted that there were no objections to the adoption of the Report.
Mr Lees reminded the Members that the DA needed to get the Report through caucus as a final mandate. But as it stood, he was happy.
Planning Proposal – Financial Oversight of State Security Agency (SSA)
The Chairperson moved on to the final issue of the day – the State Security Agency (SSA) planning proposal. This was the roadmap the Committee had proposed in respect of SSA matters. The Committee had dispensed the issues related to President Ramaphosa, which concerned allegations of the misuse of public funds. A legal opinion was received and made what the Committee directed as practical. The legal opinion was the way forward. It had been circulated for two weeks. Members were encouraged to make inputs.
Mr B Hadebe (ANC) wanted to discuss the plan and the overall objective, as highlighted in the plan. The objectives of the plan were for SCOPA to consider the financial management of SSA, with the view of determining whether adequate financial controls were in place, as well as considering whether the current auditing and financial oversight model could be improved. Having read the plan and the objective, he was prompted to get a better understanding of both the function of SCOPA and the mandate of the Joint Standing Committee on Intelligence (JSCI). Both Committees were creatures of statute. In terms of their mandates, both were limited to the functional scope, which had been written into law. SCOPA could not expand its mandate beyond that which was written in law. The mandate of SCOPA was enshrined in the rules of Parliament in section 245(1), whereas the mandate of JSCI was derived from the Constitution. Section 199(1) of the Constitution provides that security services must be structured and regulated by national legislation. Section 199(8) furthermore stipulated that, to give effect to the principles of transparency and accountability, multiparty parliamentary committees must have oversight over all security services in a manner determined by national legislation or the rules of Parliament. In this regard, the Intelligence Services Oversight Act (No. 40 of 1994) was promulgated to give effect to the constitutional imperative, as enshrined in section 199(8) of the Constitution. Section 2(1) of the Intelligence Services Oversight Act effectively created the JSCI. The JSCI’s mandate was to oversee the functions of the intelligence services, which included oversight of administration, financial management and expenditure. The JSCI was required by law to report to Parliament on matters concerning administration, financial management and expenditure of the services. These “services” mainly consist of criminal intelligence, defence intelligence and state security agency. All three services were overseen by the JSCI. This needed to be read in conjunction with section 3(8), which further empowers the JSCI to obtain certain reports like audit reports compiled by the Auditor-General of South Africa, any audit report issued on the financial statement of all three services and any report concerning the affairs of those services. The mandate of the JSCI expanded to overseeing the budget of criminal intelligence, defence intelligence and state security agency, as tabled by the Minister of Police, Minister of Defence and Military Veteran, and the Minister in the Presidency who was responsible for overseeing state security agency.
The nature of the JSCI was very unique. Before a Member of Parliament serves in the JSCI, the Member was subject to top security clearance. Should one fail to obtain top security clearance, they would be unable to serve in the JSCI. If the actions and behavior of Members of the JSCI were a threat to national security, the Speaker of the National Assembly and the Chairperson of the NCOP were empowered by section 5 (b)(ii) of the Intelligence Services Oversight Act to replace that member. The Act under section 2(7) made it clear that no persons other than members of the JSCI may be present during the proceedings of the JSCI, without the permission of the JSCI. These issues were being highlighted in relation to SCOPA’s planning proposal. All the above plans had a bearing on the functioning and interaction of the Committee with the JSCI. As it reflected, the work highlighted was supposed to be undertaken by this very Committee in terms of legislation. SCOPA and the JSCI were both creatures of statute – one was derived from the Constitution, which was the supreme law of the country.
Mr Hadebe’s appeal to the Committee, before adopting the plan or moving forward, was a request for the Chairperson and the Chairperson of the JSCI to have discussions to chart a way forward in relation to the aforementioned matter. SCOPA did not want to be viewed as oppressive and as overreaching its mandate. It was proposed that the Chairperson should correspond with JSCI’s Chairperson, Mr J Maake (ANC). It was important for the Committee to note that nothing could be done without the approval of the JSCI. It was a unique portfolio committee related to national security. Anything within that portfolio committee was discussed within sessions closed to the public. No member of the JSCI was permitted by law to disclose any information, without prior written approval or declassification of that information. For SCOPA to conduct its work efficiently “the step to take moving forward [was] for the two bilaterals to take place”.
Mr S Somyo (ANC) said that Mr Hadebe had covered what he also wanted to speak on to an extent. He would expand on what Mr Hadebe had referenced. Having financials at hand would have been appreciated because it would have been a point of reference. The Committee was responsible for dealing with matters that are financial in nature, which emanated from reports. This was within the purview of the Committee. Any person who was a conscious South African patriot, even if that person worked within “intelligence” environment, would need to ask permission for the declassification of certain documentation. If any person who presently or at a later stage wanted to deal with certain matters relating to national intelligence, they would need to obtain permission for declassification on certain information. He was not referencing people who “go [onto] platforms and just talk as they wish”. “Decent” individuals would ask for the declassification of documentation whether through a court process or through the JSCI. One needed to be vetted and to swear secrecy as well as be exposed to other necessities when dealing with matters of national intelligence. All those processes had to be met. To make things easier for the Committee, the Chairperson needed to have the “decency” to meet with the Chairperson of the JSCI. SCOPA and the JSCI were both ‘standing committees’ and institutional mechanisms with mandates defining the matters each Committee exclusively dealt with. The Chairperson should set up an appointment with the Chairperson of the JSCI to avoid having the Committee regarded as encroaching on the JSCI’s space. There were a number of reference points to the matter. There was an instance where the Public Service Commission had asked Ministry to expose certain appointments to them. The Ministry refused access because they did not account to the Public Service Commission in terms of those particular matters. The committees or instruments within the body of Parliament should not find themselves in unnecessary clashes. The Chairperson should be swift in arranging engagements with the JSCI Chairperson, and the results of those engagements should be presented to the Committee.
Ms Van Minnen said it was very important to remember the mandate of SCOPA. For all departments, there were dedicated committees that dealt with the content and internal arrangements of the departments the committees oversee. SCOPA did not interfere with the capacities and actions of these committees. There was a JSCI and various structures and regulations in that regard. SCOPA’s mandate was slightly different in that it looked at the public accounts (public money) – in a case where very powerful prima facie evidence was seen of the confusion that had occurred between the interest of the country and the interest of a political party, in respect of the spending of public money. It was very clear that the Committee was not paying enough attention to those aspects of the Department. SCOPA’s interest was not in the substance of what Intelligence and SSA were doing, but it was in the public accounts and spending of public money. SCOPA was a committee of Parliament, and Parliament represented the people. SCOPA held a very definite interest in ensuring that there was no abuse happening within departments, and that what was permissible to be in the public spaces was in fact so.
In terms of the legal opinion, there appeared to be no hindrance in SCOPA exercising authority over issues like the Auditor-Generals reports. It was important to bear in mind the function of SCOPA. Arguments that the Committee should limit itself went contrary to the bona mores, and were very unfortunate. It was not for Members to decide what the limits of the Committee were, but for them to test what could be done. SCOPA needed to proceed as had been laid out.
Mr Lees said there was a legal opinion about the correctness of the Committee embarking on the plan before it. Things were in order in that sense. Legal opinions could be different when approaching different practitioners, but this opinion was from the parliamentary legal advice. “I do not really care what the [Chairperson] of the Joint Standing Committee on Intelligence feels or thinks about SCOPA’s role”. The Committee's role should be approached robustly and within the law, without fear or favour and worrying about perceptions. The Zondo Commission had made some very startling revelations about the use of public funds within the SSA, and the President himself had picked up on those, “perhaps as a way of diverting our attending from him”. This was not a matter that should be an agreement between the two chairpersons of the two committees.
The Committee needed to decide for itself whether it had a legal mandate to look at the public account of a committee of Parliament. “I believe we do”, he said. This notion was confirmed by the legal opinion obtained for the Committee. He was not inclined to start negotiating with the JSCI about accessing the financial matters. The interest was not in “which spy was sitting in Moscow; which spy was in New York, and what they were doing”. Asking for information like the aforementioned would be breaching the mandate, and would require asking for the declassification of information. This did not apply to the use of funds or what appeared to be the “considerable misuse of the funds”, if the evidence at the Zondo Commission was correct. The Committee should proceed according to the plan presented “get on with the job”. “If we become unpopular, so be it”, he said. Popularity was not what the Committee was here for.
The Chairperson said that he would make a determination on the matter.
Ms D Dlakude (ANC) said that she had been listening to all the arguments presented by Members. What Mr Hadebe presented was also derived from a legal opinion from a parliamentary legal unit. The legal opinion Mr Hadebe referenced did not say SCOPA was prohibited in any way from performing its functions. SCOPA could do its work according to scope, mandate and also established processes and procedures. To insinuate that the JSCI was not focused on its work in respect of the financial management of SSA’s finances would be undermining the work of that committee. The work of the JSCI was conducted behind closed doors. Hence, one would not know what work that committee is doing. “The work of your committee [SCOPA] is open to the public, and everyone knows what you are doing for this reason”, she added. The legal opinion referenced by Mr Hadebe did not prevent SCOPA from doing its work; “you can do your work”. The insinuation that the JSCI was not focusing on doing its work was undermining the members deployed in the committee. Political parties were represented in the JSCI. The JSCI was committed to doing its work.
On the issues of the Zondo Commission… [Member experienced connectivity issues]
The Chairperson asked the Committee Secretary to assist with the connectivity issue. He encouraged Ms Dlakude to continue once her connection was restored.
Ms Dlakude said that the presentation made by Mr Hadebe did not stop SCOPA from doing its work. Everyone expressed concern about public funds and all were committed to doing their work. The activities of the JSCI were conducted behind closed doors and this was why nobody knew what the committee was doing. SCOPA’s mandate, scope, established processes and procedures were open to the public. The insinuation that the JSCI was not doing its work undermined “other committees without even knowing that” other committees were also being undermined. These insinuations were made with no knowledge of what was happening behind the closed doors of the JSCI. The presentation by Mr Hadebe did not dictate that SCOPA and its Members were prevented from performing their functions. The JSCI would do its work the way it does it.
The circumstances surrounding the Zondo Commission were public knowledge because they happened in public. There were recommendations from the Zondo Commission. Members from SCOPA could do their work, while the JSCI would do its work as mandated by the Constitution, the Joint Rules of Parliament and the Intelligence Services Oversight Act. The members within the JSCI represented different political parties that were not partisan when dealing with issues. Without undermining the work of the JSCI, SCOPA should do what it was mandated to do. SCOPA oversees everything that has to do with the management of public funds, and should continue to do this work without undermining the work of other committees in documents or in arguments. The JSCI was unique because if, for example, the Chairperson of that committee was absent for six months or even a year, the committee would not sit. This was because, when members of the JSCI were appointed to serve, they were vetted and sworn into secrecy. The JSCI Chairperson was appointed under separate conditions to members within that committee. This was why there could be no acting chairperson in the JSCI.
The Chairperson thanked everyone for their contributions. He had listened attentively.
Mr Hadebe said he had not been elaborate enough. He had referred to the uniqueness of the JSCI. It was uncomfortable to hear statements like “we do not care what the [Chairperson] of that committee thinks”. It was important for the two Chairpersons to correspond. In terms of the Joint Rules of Parliament, no member in the JSCI may disclose any information. The disclosure of information required a committee vote prior to such disclosure being made. Further, no person may disclose any intelligence information or documents whose publication was restricted by law, except with the written permission from the Chairperson subject to sub-item number three. Sub-item three stated that the Chairperson of the JSCI may not grant permission for the disclosure of information unless they had obtained leave to do so in writing, from the head of the relevant services.
For SCOPA to do its work in relation to SSA, the Chairperson of the JSCI was relevant. Views that seek to suggest research had not been done in this regard should not be articulated. SCOPA did not seek popularity – “in fact, we are not in a beauty pageant”. No one was here to parade which Parliamentary committee was better than the other. The work of SCOPA was dependent on the relevant engagement approval and understanding from the JSCI. During the unrest in July 2021, when the Portfolio Committee on Police and other committees wanted to embark on an enquiry, they could not do so because this was the prerogative of the JSCI in terms of the Joint Rules of Parliament. The message was not that the Chairperson of the JSCI was a "super chairperson". The Constitution of South Africa was the supreme law. The existence of SCOPA was derived from the Constitution and as per the Intelligence Services Oversight Act in relation to section 199(8). No committee was being prohibited or restricted. The request for engagement between the Chairperson of SCOPA and the JSCI would not cause harm.
The Chairperson noted Ms N Tolashe (ANC) as the last speaker, after whom he would make his determination on the matter.
Ms Van Minnen said that Ms Dlakude did not say anything that contradicted the position she had previously articulated. Ms Dlakude was correct in stating that the JSCI must do their work, just as SCOPA did its own. No committee should undermine any other committee, and this worked both ways. The submission was not into the content of SSA but the spending of public money. There was ample evidence to suggest that there was space for SCOPA to perform its constitutional mandate in that regard. Nothing that contradicted this was heard. The Committee should proceed with the SSA roadmap before it. It was not for the Committee to decide what it could and could not do. Legal advice had been received, and the Committee should proceed in that regard. “I have yet to hear anyone actually contradict that”, she added.
Ms Tolashe said that she agreed with what both Mr Hadebe and Mr Somyo had said. The point, however, needed to be made that Mr Lees did not represent the Committee when he said that he did not care what the Chairperson of the JSCI felt or thought. This was not the spirit of SCOPA. It was not a stand-alone committee. SCOPA was one of the committees under the rule of Parliament. This was important because SCOPA should not view itself as a stand-alone committee that did not care about other committees. This was not possible, owing to the Constitution and the rules of Parliament. Nothing unexpected was said. There were suggestions that were clearly put by both Mr Hadebe and Mr Somyo, which reflected what the Deputy Chief Whip of the Majority Party, Ms Dlakude, had articulated. Members could agree to this or disagree and then move on.
The Chairperson said that he had heard everyone. He wanted to categorically state that SCOPA did not, in any way, view itself as superior to other committees or special, nor did it undertake its work with the view of undermining other committees. SCOPA would occasionally find itself venturing into unchartered waters in the pursuit of ensuring adherence to the Constitution, the Public Finance Management Act 1 of 1999 (PFMA), the Municipal Finance Management Act 56 of 2003 (MFMA), National Treasury regulations and other related financial management laws at play, at any given time. There was no ambiguity about that. The rules were provided for this, as set out in Rule 245 of the NA Rules, in terms of what could and could not be done.
Secondly, the Committee agreed to pursue its work in consistence with the legal advice. The SSA roadmap was derived from legal advice and the input made by Members on 16 February 2022, when the Committee met. This was a reminder to indicate that it was the Members who said the Committee would look into the financial management of the SSA. SCOPA was not looking into the policy and operational matters of the SSA; this was not the Committee’s purview. SCOPA would not be left to compromise its own integrity by doing things outside of its mandate. It was important for SCOPA to be honest about its own checks and balances. The assumption made when the SSA roadmap was developed was that it would be derived from legal advice. The legal advice pointed out that the JSCI had a specific mandate to look into the accounts of the SSA, as provided for in section 3 of the Intelligence Services and Oversight Act. It was, however, important to highlight that this mandate was not framed as exclusive. No reason in law automatically precluded SCOPA from considering the financial statements and related matters of SSA, as per the oversight functions of the Committee. The historic reason for SCOPA not conducting financial oversight over SSA may be due to SSA citing confidentiality, while meetings of SCOPA were held openly whereas the meetings of the JSCI were closed. The legal advisors were of the view that there was no reason why SCOPA could not close its meeting for purposes of conducting financial oversight over the SSA. Such closure of a SCOPA committee meeting was provided for in NA Rule 184. In addition, closure would only be necessary in so far as SSA could demonstrate that the disclosure of information could reasonably be expected to prejudice the defence, security or international relations of South Africa. This was a reminder highlighting the particular aspects of the legal opinion, which Members agreed would be the basis upon which the Committee would proceed.
Members were on the same page in terms of getting the work done, but new aspects had now been raised in the meeting. Mr Hadebe was extensive in some of the legislative frameworks that he had cited. The Committee also had to ensure its processes were watertight, and that it did the right things correctly because one could do the right things incorrectly. The Chairperson requested written submissions on the matter so that the issue could be taken on advisement for it to be properly be reviewed by the Committee. All Members who wanted to contribute to the discussion were encouraged to make submissions, including (but not limited to) the suggestion of correspondence between the Chairperson of SCOPA and the JSCI. The submissions were due by close of business day, on Friday, 18 March 2022. The matter would be taken to legal advisors to ensure all legal bases were covered if a meeting were to happen between the Chairperson of SCOPA and the JSCI. SCOPA was not venturing into the fine details of the operations of the underground world, particularly in the national interests. The Committee needed to adopt a “hamba kahle (farewell) approach” on that, but nobody was immune to financial management consistent with the law. Whatever the “underground gang” was doing, there needed to be checks and balances that would be a financial management structure. This was a new process for SCOPA and Parliament, and other reports were pending.
The Committee still needed to meet with the Auditor-General, who had yet to report on the audits of SSA. There was “absolutely no crisis”. Members were, again, encouraged to make extensive written submissions by close of business day Friday. The Chairperson would take the matter on advisement. Members were also reminded that the SSA roadmap was largely derived from a legal opinion that the Committee accepted as guidance. There were aspects of the SSA planning proposal which the Committee voted and decided upon, and those matters had been dispensed.
There was no suggestion on the part of SCOPA that it was the “super committee” on parliamentary affairs. SCOPA was reasonable in its application of the rules and did not undermine anyone. If inception of the aforementioned nature had to prevail, then cooperation with other committees would be made very difficult. SCOPA has had historical clashes with other committees. It was not a super committee and certainly did not conduct itself as such.
Ms Van Minnen asked for an extension because she had to attend a funeral on Friday and therefore could not send her written submission on the date stipulated.
The Chairperson noted the request made by Ms Van Minnen.
Mr Somyo asked whether each and every Member of SCOPA could be vetted and be exposed to a top-secret assessment, if necessary. This would be so that as the Committee ventured into “such exercises”, Members could receive clearance on all other things. The committees that SCOPA dealt with were portfolio committees, whereas the JSCI was a “Joint Standing Committee” founded on the basis of statute. Committees of different standing existed. The JSCI and SCOPA were created on the basis of law. Parliament could exercise the right of saying that it did not have a particular portfolio committee, but on the basis of “Standing Committees” they were the “basis of statute”. This distinction was significant. Any submissions could be made in the proposed time, and a discussion could be held later.
Mr Lees said that he was “entirely comfortable” with the Chairperson’s proposal, but asked for the submissions to be circulated to all Members of the Committee, to be considered. In terms of the vetting, it took months and sometimes a year. He had no objections to being vetted but would object if it were used as a strategy to prevent the Committee from proceeding with the SSA planning proposal. The vetting of SCOPA Members should not be used as a reason to prevent proceeding with the work because of the long delays associated with the vetting process.
Mr Hadebe said he appreciated the Chairperson reminding Members of what they had agreed to thus far, including the legal opinion. He had previously mentioned that subsequent to that the Committee had consulted applicable pieces of legislation. No legal opinion could supersede the Constitution. He had previously quoted the Constitution. The rules, as agreed and adopted by Parliament, had also been quoted. No legal opinion may supersede these rules. There were quality-assurance mechanisms as well as checks and balances within the intelligence sector. The office of the Inspector-General of Intelligence (IGI) did exactly what the Committee was alluding to. There was also an audit and risk committee over and above the audits of the Auditor-General of South Africa. The Inspector-General of Intelligence only accounted for the JSCI and had powers to investigate all issues related to maladministration, abuse of power, misappropriation of funds – and reported to the JSCI. The JSCI would then report this information to Parliament. When the law was read (not the legal opinion), it was clear in terms of disclosure of anything. Whether information was sought as it related to the misuse of public funds this disclosure could only be received once certain procedures were followed. All the t’s needed to be crossed. For SCOPA to do its work effectively, information was required. The only route that needed to be taken to obtain that information was to have the bilateral engagement. This was not an extraordinary request. Members needed to correctly understand the processes. There were prerequisite processes that needed to be followed for SCOPA to obtain certain information. Even the Auditor-General, the staff that audit SSA, were required to obtain certain minimum-security clearances. Even when the JSCI reported to Parliament on the audit outcomes it would not disclose everything. The issues raised were informed by law, not the legal opinion. The mandate and resolution of SCOPA still stood, but the planning proposal should not be reduced to a “by-the-way resolution”.
The Chairperson said that Members should avoid a protracted debate on the matter. Members were largely on the same page. Any issue Members wished to raise as a proposal should be placed in their written submissions. The proposal to meet the JSCI Chairperson was not a “by-the-way resolution”, but one needed to have an engagement from an informed basis to ensure meaningful correspondence.
Ms Tolashe reminded the Chairperson that he had said earlier that the Committee was in unchartered waters, dealing with matters they had previously not dealt with. The Committee needed to act as a team as opposed to individuals to carry out the duties it set out, in a manner that would bring pride to Members individually as well as the Committee collectively. The Committee should therefore not impose conditions on itself because this would create problems. This would discourage teamwork; division would not give the Committee the answers or progress it sought. If Members were worried about the vetting process articulated by Mr Somyo then the Committee should not conclude without knowing what would be the case. Members would be “here” until 2024. If there were fears they should be raised. If difficulties were foreseen in what had been outlined, Members should deal with those difficulties to determine the speed at which the vetting could be completed. The Committee should not place stumbling blocks before itself because this prevented progress. Was there any precedence for the requested written submissions? The due date of Friday was too soon because Members would be in Parliament today. The Chairperson should give Members seven days to submit proposals if Members agreed to the proposal of making written submissions.
Ms Beukes asked the Chairperson whether she could speak.
Mr Hadebe noted that the Chairperson had lost his connection.
The Chairperson reconnected and said that Ms Beukes and Mr Lees would be the last speakers.
Ms A Beukes (ANC) asked whether Members would come back after the written submissions to review the SSA planning proposal. The proposal could not be approved without the bilateral between the Chairperson of SCOPA and the JSCI. There was no reason for the Committee not to perform its functions and to conduct oversight without fear or favour. She agreed with Mr Hadebe that the two chairpersons should firstly engage and then the Committee could discuss and vote on the written submissions of Members.
Mr Lees said he had no problem with the Chairperson engaging with the Chairperson of the JSCI. He expressed support in having the Committee look at the submissions to see what arose out of them. This was, however, a Committee decision.
The Chairperson said that Members were all saying the same thing. The reason he had asked for the written submission was because of how extensively Mr Hadebe had cited information. After the receipt of the legal opinion consultations had been made, and legal prescripts had been looked at. The written submissions were suggested to ensure that an informed decision was taken, covering all the basics. There was no ulterior motive. He had closely listened to what Mr Hadebe had said in so far as the legal injunctions. Advice was needed in respect of the vetting process, what it would entail and to what extent Members would be vetted. This seemed like an unprecedented step, but it was not unprecedented because the submissions would be circulated to Members. Members were urged to make their submissions. The due date was previously set for Friday, with the assumption that certain Members like Mr Hadebe already had most of the points written down and thus not much time was needed to make those submissions. The written submission could be sent in during the following week since certain Members requested an extension.
All legislation was subject to interpretation so that it would be applied correctly, and this was what prompted the Committee to seek out the legal opinion. Application of the legal opinion should satisfy all Members and bring about comfort, and encourage the Committee to own the process. Consultation was the “name of the parliamentary game”. Consultation and collaboration were extensively the nature of the game. The request for written submissions was to ensure that all the issues were highlighted and filtered through to arrive at a conclusion on the implementation. The SSA roadmap was not being “chucked out of the window”. The critical question that had arisen was on the due process of the implementation of the SSA roadmap. Once this matter had been addressed, the Committee would engage, make suggestions and provide a way forward.
The written submissions were now due on Wednesday, 23 March 2022. These submissions would be considered in the week that was meant for oversight. Investigation into determining the processes of vetting would soon be initiated to ensure Members were properly briefed when the time arrived. Mr Hadebe was the only Member who had been vetted. The written submissions were due next week Wednesday to avoid a protracted debate. The Committee would solely sit to hear the modus operandi of the JSCI so that Members were better informed. The Chairperson hoped that Members found these final determinations in order.
Mr Lees agreed with the Chairperson.
The Chairperson said the oversight to Eskom had been postponed, but a decision would be taken to determine what work the Committee could conduct on 29 and 30 March 2022. The Passenger Rail Agency of South Africa (PRASA) annual report had been submitted and tabled to Parliament. It was a disclaimed audit outcome. The draft report would be circulated on the PPEs for Members to make their input, and a date would be found for consideration.
The Chairperson thanked everyone for attending the meeting.
The meeting was adjourned.
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