National Skills Fund investigation: legal opinion; Masilonyana Oversight Visit Report

Meeting report

Discussion: Legal opinion on NSF report

Ms N Tolashe (ANC) appreciated the Chairperson’s efforts, at the request by the Ministry, in making time to get the parliamentary legal service's advice on the National Skills Fund (NSF) report. The Committee also appreciated the legal staff who had gone out of their way to get back to the Committee in time. The legal advice in its entirety confirmed the Committee’s suspicions in a very straightforward manner. The Committee should accept the legal advice and proceed with what it had agreed upon, which was not adhering to the Minister’s request. The rejection of the Minister’s request should be based on the reasons that Members indicated yesterday, and the legal advice now received by the Committee.

Another suggestion was to bring the Special Investigating Unit (SIU) to assist with the way forward now that the Committee was aware that the Department of Higher Education had received the report in March, and little or nothing had been done. The Committee was more empowered to proceed with the report now that the legal advice had been received, and nothing stopped it from proceeding with the report.

Mr A Lees (DA) said that the legal advice was absolutely clear and confirmed the position that some of the Members had adopted in yesterday’s meeting. The report was now in the public domain, as it should be. Although the process had been somewhat delayed by the Ministry’s absence from the meeting yesterday, the Committee must now get on with the job, as Ms Tolashe said.

Ms V Mente (EFF) appreciated the Chairperson’s efforts in ensuring that the Committee received the legal advice on time, and that it could eventually deal with the matter properly. The suggestion to bring the SIU on board as soon as possible was a good one, because the Committee did not have any other mechanism to investigate thoroughly. If the SIU could not come on board and the President signed the proclamation, then a parliamentary inquiry would become an alternative. If Parliament did not yet know how the expenditure had been taken from NSF, and the Auditor-General had no means of measuring the expenditure, then the public would no longer have confidence in how money budgeted for education was spent and accounted for. As soon as possible, the Committee should communicate with the SIU and if possible, have a physical meeting in three or four days’ time.

In areas where the Committee was required to open criminal cases, the Directorate for Priority Crime Investigation (DPCI) must also be contacted, and the back office of the Committee must look into the criminal elements of the report. This was because the presentation made by the Director-General (DG) had shown that the Department of Higher Education was not deeply looking into the criminal elements, and those were the factors that were driving corruption in the country. For instance, if people just got taken to a disciplinary committee (DC), the Department had no control over the DC. If the DC decided to just issue a warning, nothing else happened. The Department would then comfortably report to the Committee that there was nothing they could do, as that would be seen as interference. The Committee should therefore pay much deeper attention and ensure that criminal cases were opened against those that had committed criminal acts in the NSF.

Another suggestion was to get the Auditor-General of South Africa (AGSA) to assist with the documentation that the Committee should be looking at, on the auditing that should have taken place, hence the disclaimer of the AGSA.

Finally, the legal opinion confirmed that nothing could stop any investigation into public funds, and nothing was closed to the public, as the public had the right to know. There had been inquiries, the latest being the Zondo Commission, and nothing was ever closed. If anyone felt they were prejudiced, they could go to court and challenge it because the finding of that investigation was not a court judgment. Therefore if a person felt strongly that they had done absolutely nothing wrong, they could go to court and challenge it. However, the Committee’s work could not be stopped and the public could not be closed off from knowing what was happening with the public funds.

Ms A Beukes (ANC) said that part two of the legal opinion which reads: a “decision in term of sub-rule one to exclude the public …” formed the basis for the Chairperson referring the matter to the legal department of Parliament, and not that the Committee did not know how to do its work. The Committee wanted to do its work uninterrupted, and the legal opinion assisted with that.

The only reason that was stated in the letter of the Minister for a closed meeting was that they had not engaged with the people mentioned in the report, even though they had the report for over six months. That showed no urgency to address and conclude this matter, which was unacceptable. Transparency and accountability were crucial for effective clean governance, so if the Committee wanted to ensure reliable and quality basic services, it needed to do its oversight without fear or favour.

SCOPA was one of the Committees that worked together on matters that required unity, especially in protecting the public. SCOPA must “put the bite back into the bark,” because people always said that SCOPA was all bark but no bite, so it was high time that the public was shown that it could bite.

Mr B Hadebe (ANC) thanked the Chairperson for his wisdom and for affording Members enough time to apply their minds while being guided by the opinion of the parliamentary legal service. It should be noted that, indeed, the Committee was capable of analysing, reading and interpreting the rules. Yesterday the Committee had been sort of “ambushed” by the Minister’s request. This had required it to take a step back and thoroughly look into this matter, despite its dissatisfaction with the manner the request came about. This had allowed the Committee “gather its strength” and deal with the matter the best way it knew. The legal opinion was welcomed and fully appreciated, and now the Committee could proceed with the report and conclude the matter, as it had been dragging on for way too long.

The Chairperson said there was clarity now, and all that was left was due process. The legal advice had confirmed the views that Members had yesterday, and the Committee would proceed as Members had agreed. A letter of communication would be sent to the Minister informing him that the Committee had not accepted his request to hold the report confidentially. The Department would now be given an opportunity to present to the Committee its action plan and the implementation of the report.

Members must now study the report so that by the time the Department made its presentation, they were familiar with it and were able to engage as to whether the action steps being proposed by the Department were sufficient and responsive to the Committee's expectations. The Committee would like to thank the legal services, particularly Advocate Jenkins, for taking the time to assist the Committee in making an informed decision.

Report of the Standing Committee on Public Accounts on its oversight visit to Masilonyana Municipality in the Free State, from 22 to 24 August 2022
The Committee Secretary took the Committee through the report.

Mr Hadebe referred to the last page of the report, and suggested the following addition: "Insofar as it concerns the SIU, the SIU should submit quarterly reports to the Committee to update it on progress made in their investigations."

Ms Tolashe referred to the recommendations on page 12, and suggested an addition: "Let there be a skills audit on current officials, and when appointing officials." She also suggested that the Committee group all municipalities that had been visited to see how much progress had been made.

Mr Hadebe alerted the Committee that the contractor on the Makana project had now been liquidated, and Members would recall that the SIU had been requested to investigate the jump from the initial price of R52 million, to R237 million. There was an urgent need to revisit the Makana project, as it had come to a halt. SCOPA should arrange a joint meeting with the Department of Cooperative Governance and Traditional Affairs (COGTA) to get a status update on the project.

Mr Hadebe moved to adopt the report.

Ms Tolashe seconded the adoption.

The Chairperson said that the report would be tidied up and sent to the Members before being published in the Announcements, Tailings and Committee (ATC) reports.

New issues for Committee's consideration

Ms Mente said there had been a very problematic headline, which indicated that ESKOM had been unable to recover money paid to some companies in excess of what they were supposed to receive. Could the Committee's back office investigate, and if it was true, the Committee would need to request ESKOM to answer to that.

Mr Lees said that as much as he agreed that the Committee needed to continue the work it had started on ESKOM, the same had to be done on South African Airways (SAA). That was because it was known that SAA had lost 21 of its international routes, and it had now been about 16 months since the secret deal was made with the Takatso consortium, and the Committee still did not know any of the details about that deal. SAA should also be called in to establish what was going on with the deal and the losses incurred.

The Chairperson said there needed to be a physical meeting with ESKOM -- most likely a full day. That should then be provisionally put down as one of the first meetings the Committee would have when Parliament resumes. The issues at SAA and the Passenger Rail Agency of SA (PRASA) would also need to be looked into as soon as Parliament resumed.

The meeting was adjourned.