National Skills Fund investigation: Committee deliberation

Public Accounts (SCOPA)

27 September 2022
Chairperson: Mr M Hlengwa (IFP)
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Meeting Summary


The Standing Committee on Public Accounts (SCOPA) met with the Department of Higher Education and Training on a virtual platform to receive an update from the Ministry on the forensic investigations at the National Skills Fund (NSF).

The Chairperson informed the Members that he had received the report from the Department as well as apologies from the Ministry that they would not be able to attend the meeting. He had also received a letter from the Minister requesting that SCOPA treat and declare the forensic report submitted to the Committee as confidential in terms of rule 189 of the rules of Parliament.

Members immediately expressed their dissatisfaction with the way in which the Department had been handling this report, especially the last-minute communication from the Ministry, and not showing up to meetings. They rejected the request of the Minister to treat the report as confidential, and found the rule being invoked by the Ministry to be totally unacceptable. Members agreed that the rule being presented to the Committee had been misread, as the Committee should be the party declaring the report confidential, not the Department.

The Chairperson proposed that the Committee take time to study the relevant decisions before voting on the matter, and to convene at 9:30 am tomorrow to make the decision. The EFF said that they would not allow being sworn into secrecy on a report involving public funds, and it should be made clear that the Committee did not agree to keep the report private. The DA also agreed with the EFF, but indicated that due to the sensitivity of the report, they were of the opinion that the contents of the report should not be disclosed to the public before tomorrow’s meeting.

Meeting report

Minister's request for confidentiality

The Chairperson informed the Committee that last week he received correspondence from the Minister indicating that he would not be available to attend the meeting, but the Deputy Minister would attend. This morning, the Deputy Minister sent correspondence that he would also be unable to attend the meeting as he would be at a doctor’s appointment.

The Committee received a letter from the Minister this morning, dated 26 September 2022 which reads as follows:

Request to treat and declare the National Skills Fund forensic report submitted to the Committee as confidential in terms of rule 189 of the National Assembly.

I hope this correspondence finds you well. As requested in our last meeting, the National Student Financial Aid Scheme (NSFAS) report should be submitted to the Committee through your office. Kindly find attached herewith the reports accompanied by our presentation. I want to reiterate that all the people whose names are mentioned in the report have not been engaged at all whilst the Department is still finalising its internal processes.

Whilst we appreciate that all documents before your Committee are open to the public, we however request that until all processes before the law enforcement agencies and internal departmental disciplinary processes are concluded, the report be treated in terms of rule 198 of the National Assembly, especially sub rule 1(c) read with sub rule 4(a).

I submit that our request for confidentiality is reasonable and justifiable in an open and democratic society like ours, and we would not want to be the ones violating people’s rights to a fair trial. Hoping that my request will receive your favourable consideration.”

The rule reads as follows:

189. Publication or disclosure of proceedings, evidence, reports, etc:

(1) All documents officially before, or emanating from, a committee or subcommittee arere open to the public, including the media, but the following documents may not be published, and their contents may not be disclosed, except with the permission of the committee, or the parent committee in the case of a subcommittee, or by order of the Speaker, or by resolution of the Assembly:

(a) The proceedings of, or evidence taken by or placed before, the committee or subcommittee while the public are excluded from a meeting in terms of Rule 184(1);

(b) any report or summary of such proceedings or evidence; and

(c) any document placed before or presented to the committee or subcommittee as a confidential document and declared by it as a confidential document;

(4) Subrules (1)(c) and (d) apply only to documents that:

(a) contain information of a private nature that is prejudicial to a particular person;


Mr A Lees (DA) said that he found it very difficult to accept the request by the Minister, given that this discussion was had over a week ago and within an hour or two, this position could have been sent to the Committee. To wait until more than the eleventh hour before sending the position to the Committee was very unfortunate.

Ms V Mente (EFF) said that the Committee could not accept the rule being imposed by the Minister, because the rule was not relevant to the matter the Committee wanted to deal with. The information placed before the Minister was information regarding public funds and a very sensitive issue, where the Auditor-General (AG) could not audit public funds and make South Africans aware of how the money had been spent. The status of the National Skills Fund (NSF) was already in chaos and the higher education space was a mess, which was of public interest.

The investigation was done by a credible institution appointed by the same department. Last week, it was made clear that if the Minister was saying that he was now raising a no-confidence motion against his own service provider, he must say so. The Committee could not be party to sealing corruption and sealing the information that was supposed to alert the public as to who was involved in the matter by the forensic investigation. The Committee could not be sworn to secrecy by the Minister requesting that the document must be kept confidential, as it was public information and pertained to public funds.

The Chairperson said that he had taken the opportunity to consult legal services on this, as he had only just received the letter in the batch of correspondence which arrived last night. Legal services were currently working on the matter.

Ms B van Minnen (DA) agreed with Mr Lees and Ms Mente that the way the Department handled this report to SCOPA was very unfortunate. There had been two cancelled meetings because people were unavailable and the Committee was now in a situation where the Minister and Deputy Minster were unavailable. Now there was this last-minute request for confidentiality. This was the National Assembly, and it was accountable to the people of South Africa, not to various Ministers or stakeholders. The request by the Minister was very last minute and not applicable in this matter, so the Committee should proceed openly.

Mr B Hadebe (ANC) acknowledged the unfortunate situation that this report had been given to the Committee at the eleventh hour, and not affording it enough time and opportunity to engage and consult legally on these matters. It should be stated upfront that this was totally unacceptable and uncalled for, as it was a deliberate attempt to suffocate the Committee from executing its work and mandate. The Committee could not afford to tolerate such deliberate suffocation. It would be better to get a legal opinion on this matter, and the Director-General (DG) should assist in confirming whether or not the document was titled "confidential."

The Department had been sitting with this report for more than six months now, and if they said that they needed more time, it was up to the Committee to prescribe the timeframe to engage on the matter. Whether the Department was finished or not within the prescribed timeframe, the matter would be dealt with for public consumption, therefore the Committee should not tolerate or accept any postponement of this matter.

The Department should be given until a particular date in the fourth quarter, and when that time comes, the report should be debated in public and the resolution of the Department placed before the public.

Mr Lees said that the basis on which the Minister appeared to be requesting that the report be considered a confidential report was that there were people named in it who were undergoing some sort of disciplinary or other processes. Therefore their names should not be disclosed to the public. That was unacceptable as, for instance, the police and the prosecutors did not have to keep confidential all the people charged with various issues simply because they had not been convicted. On that basis, the request could not be accepted.

Rule 189 1(c) seemed to have been misread this morning, as the Committee should declare the document being spoken of in the rule as confidential, not by the presenter. In this case, the document had been submitted as confidential but had not been declared confidential by the Committee. If it was put to vote it should still not be declared confidential by the Committee.

Mr S Tambo (EFF) also agreed that the rationale for declaring the report confidential did not stand up -- it was not confidential until the Committee had declared it to be. It would be a gross disservice to the people of South Africa if the Committee wanted to keep things confidential under the interpretation that there were people’s names mentioned in the report, which might jeopardise the investigation. If this were to be put to vote, the EFF would also vote against the report being made confidential.

Ms N Tolashe (ANC) commented on the Department's attitude of not “playing the game accordingly.” It was not the first time that the Committee had been sent documents at the last minute, and the way in which the Department had been handling this report had been dissatisfactory and frustrating. The Minister could have handled this matter differently by raising the matter with the office of the Chairperson directly, and getting to hear the Chairperson's response. The Committee should wait for the legal experts before acting on the request by the Minister so that it could make an informed decision.

Mr S Somyo (ANC) agreed with Ms Tolashe that the Committee should wait for the legal unit first before deciding on the request by the Department.

Mr Hadebe asked that if the legal experts' advice was that the Department could place the document to the Committee as confidential, and the Committee’s resolution was not to make the document confidential, what would happen then?

The Chairperson said he found it totally unacceptable for the Department to place the Committee in this kind of position at such a late hour. The primary basis on which the Committee must be able to decide whether the report was confidential or not, would be to receive the report in good time, study it and then make a determination on that. It was unacceptable that the Committee had to make a legal decision instantly, without having enough time to look at the report, when the Ministry had the time to apply its mind to the matter at hand.

The point that Members made was valid, as the Department had had this report for over six months, which was enough time to do things right. There was a fundamental issue about due process, because, firstly, the documents arrived last night, and Members had not had enough time to go through the letter and the report, or even consider the rule being presented to the Committee by the Department. Therefore, it seemed as if the Department had done this deliberately.

When the legal opinion or advice comes back, Members would receive it to look at it and decide. Tomorrow, the Committee was due to meet to deal with the Masilonyana report, so that programme could be adjusted so that this matter was dealt with first as a priority. A Parliament that conducted its business in the shadows and did not adhere to its own due processes was worrying, particularly a committee such as this one entrusted with the responsibility of oversight over public accounts.

Ordinarily, this report belonged to the Committee, and the investigation was commissioned at the Committee's orders. This investigation was not voluntary by the Department, but had been commissioned by the Committee. It was therefore proposed that the Committee take the time to study the relevant decisions before voting on the matter. Tomorrow, the Committee would convene at 9:30 am to make the decision. This was said with the understanding that Parliament’s legal advice was not binding, but served as a basis for interpreting the rule in question.  

Mr Lees said this was a very dangerous precedent that the Committee was looking at, because there was no requirement for the Committee to get legal opinions every time it had to deal with something. The legal advice was a facility that was available to the Committee, and it had been used from time to time. The concern was that the legal opinion would come and give an opinion that was contrary to the opinions of some of the Members. The majority of the Committee may well decide to invoke the rule and declare the report confidential, and therefore the party’s rights would be reserved. Without prejudice, the DA would go along with obtaining the legal opinion of the Parliamentary Legal Office on the interpretation of these rules to be presented to the Committee, long before 9:30 am tomorrow if possible.

The Chairperson said that he was deliberate in saying that the legal opinion was not binding, but the process upon which a report was handled was what the Committee was looking at. The point that Mr Lees had made was in order, and once the legal opinion was received, the Committee would meet tomorrow and deliberate on the request that the Minister had made.

Mr Somyo asked whether the document would remain as the Department’s document on their own terms until the Committee decided on the request, as there was a day between this meeting and the meeting tomorrow.

The Chairperson said that the document would remain as it was until the Committee had made its determination tomorrow on the request before it.

Ms Mente said that the Committee should be very wary of many things as SCOPA Members, as they were now swearing each other into secrecy. Members swearing each other into secrecy, as the Department had literally sworn the Committee into secrecy that the document had to be kept confidential and could not do anything else with it. Before starting the meeting, the Committee might as well have applied for a closed sitting, because there were currently members of the public watching this meeting and now there was secrecy on the matter being discussed.

It was wrong to be sworn into secrecy; if the report was out, it was out. The Committee must be very careful of what it did because tomorrow they were going to be done by people whom the Committee thought it could overrule. The Committee was now breaching the rules of Parliament, as this was a public meeting and it had not been declared, or applied for it to be, private. The Committee was now closing a meeting of Parliament on a matter of public funds, on a matter of corrupted funds and maladministration. The EFF would not take part in that whatsoever.

Mr Lees reiterated that the report had been demanded by a particular date by the Committee, and it had not been freely given to the Committee. In fact, it should have been given to the Committee a long time ago, given the history behind the request for the report. Therefore, this report had only been tabled but not been declared by the Committee as confidential, and as a result, was not confidential at this point. The DA was not prepared to be sworn into some sort of secrecy concerning this report, but would hold back on any public viewing of the report until tomorrow morning. The DA still reserved its rights about the process that may unfold during tomorrow morning’s meeting.

There was no rule or obligation on any of the Members of the Committee to not make the contents of the report public at this point in time, but given the sensitivity expressed, the DA was prepared to wait for 24 hours before coming to a conclusion.

The Chairperson said that the Committee had a request to consider, pronounce itself on, and take the process forward, so this was just a matter of due process. Therefore, could the Committee go through a process to make a decision as a Committee once all the relevant documents and factors have been considered? It would then inform the Department that the Committee had not accepted their request, and then the Department would be allowed to present its action plan and the implementation of the report to the Committee.

Dr Nkosinathi Sishi, Director-General, Department of Higher Education and Training (DHET), said that he had taken note of the Committee's concerns regarding the manner in which this matter had been handled. He hoped that as the matter concluded, the Committee and the Department would see things the same way, as both parties were determined to ensure clean governance and accountability. In the end, when both parties had read the report and seen the recommendations that had been made, there would be a reconciliation between the Department’s position and that of SCOPA.

Chairperson’s closing remarks

The Chairperson said that the point he wanted to highlight was not the request, but the process and timing in which the request was being made. This must be considered as the unreasonable timing seemed to be a norm in the Department. Reasonable time must be given to the Committee to deal with matters and requests.

It was then concluded that tomorrow, the Committee would convene at 9:30 am to make a decision on the Minister's request.

The meeting was adjourned.


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