The Committee convened in Parliament to receive an update from the State Security Agency (SSA) on the vetting of Eskom officials.
The Committee set out its position and the Minister understood its position and indicated that he was consulting on certain legal aspects of the matter. The report for the Committee is due in the week of 12 December 2022, as Parliament is going on recess and no parliamentary committee meetings are scheduled after that date for the remainder of the year. The first available date to schedule meetings is Tuesday, 24 January 2023, when committees resume.
It was agreed that having heard from the Committee and gone through its legal opinion and consulting on the legal aspects, the Minister will appear before the Committee on Tuesday, 24 January 2023. If exceptional circumstances arise, the Committee will make a special application for a meeting.
The Committee’s position was that issues around vetting must be reported on. As indicated by Eskom in October of this year, vetting of 100 employees, including the Group Chief Executive Officer, has not taken place. The Committee heard that the delay in the vetting of the CEO arose because he had not complied with submissions that were due to the State Security Agency (SSA) for the purposes of vetting.
Accordingly, the SCOPA Chairperson will write to the Eskom Board and the CEO seeking clarification on the matters raised by SSA. The Committee will seek an explanation as to why the CEO has not complied if he has not complied. The Committee takes a dim view of negotiations around vetting because it is a statutory requirement, as decided by Cabinet. It is the Committee’s view that those who refuse vetting should exit the public service.
The Chairperson welcomed Members, the Minister, Deputy Minister, and the delegation from the State Security Agency (SSA) to the meeting. He said the SCOPA of the fifth Parliament raised concerns about the slow progress of vetting of public officials in government departments and State-Owned Entities (SOEs). There was a lack of enforcement of the Cabinet approval of the National Vetting Strategy as some senior officials of the SOEs simply refused to be vetted and there were no consequences taken against them. The Committee raised this in its Legacy Report and recommended that this area be followed up in the sixth Parliament. Subsequently, the SSA appeared before SCOPA of the sixth Parliament on 15 October 2019 and the purpose of the meeting was to brief the Committee on the status and progress of vetting of public officials, especially in the Supply Chain Management (SCM) units and senior officials in the public sector.
During the meeting, the Committee was informed of the backlog in the vetting process due to various challenges including, but not limited to, a lack of funding to recruit the required personnel and resources, dependency on other departments and entities for other information, resistance by officials and government departments and entities to undergo the vetting process, and lack of compliance monitoring by the executives and lack of regulations to enforce compliance. The Committee also heard that vetting is not a funded function, and there were other challenges including the over classification of clearance levels by security managers, exclusion of required documents, noncompliance with and cooperation by subjects and references, and interferences by unions.
The SSA, in 2019, assured the Committee that it was working on a pilot phase to speed up the vetting process and this was to be completed by September 2020, by which time at least 50 officials from each Department or SOEs would have been vetted. The SSA would also make a recommendation to Ministers and accounting officers and authorities to incorporate the vetting process into performance contracts and ensure that the related cost associated with the vetting process are paid by the client department and/or entity. However, in a recent SCOPA meeting, the Committee was informed that out of 21 senior executives at Eskom, only five had been granted security clearance on 19 October 2022. The vetting status for other executives was still in progress, including the Group Chief Executive Officer and the Acting General Manager of Procurement at Eskom. Some Eskom officials were still awaiting feedback from the SSA on the outcome of their clearance.
The meeting of 19 October was the reason the Committee then suggested a meeting with the SSA to follow up with the status and progress of the vetting process. In the meeting of 15 October 2019 with the SSA, the Committee was informed that out of 121 senior officials at Eskom, only 21 had complied with the vetting process. In a previous SCOPA meeting on 7 December 2017, the Committee was informed that in some SOEs, including Transnet and South African Airways (SAA), the vetting process had to be stopped because there was no cooperation and some officials simply refused to be vetted.
In the State of the Nation Address (SONA) of 2012, it was announced that all public officials involved in the supply chain should be vetted, and the project commenced in February 2014. The Agency reported in October 2019 that it had only managed to achieve security clearance for 48% of the submitted requests.
The Chairperson felt it was important to provide the overview to provide context on why the issues drew the attention of the Committee. The Committee had recently received a legal opinion from Parliamentary Legal Services on the issues that were raised, and the Committee was mindful of the parliamentary processes including the work of the Joint Standing Committee on Intelligence (JSCI) and would not venture into that space because the question of the Committee was not on the “how” part of the vetting, but on the “why” part.
The Committee wanted to know why the vetting was not happening because it was also emerging as an Audit finding for the Departments and entities. Whilst the meeting that was proposed by the Committee was about Eskom, it also emerged in other SOEs that there was also a delay in the vetting process of the South African Broadcasting Corporation (SABC) board, and some of the law enforcement agencies had also stated that some personnel in their spaces also needed to be vetted by the SSA, and the Passenger Rail Agency of South Africa (PRASA) had also flagged the issue of vetting that had not happened. This was important because it was a matter of compliance for the departments and entities, as it was a Cabinet resolution that was announced about ten years ago.
Minister’s opening remarks
Mr Mondli Gungubele, Minister in the Presidency, assured the Committee of the Agency’s appreciation and respect of the background and context provided by the Chairperson and their willingness to assist in finding the resolution to the issue. He said they did not want to appear before the Committee only because they were legally inclined to do so, because it was not in their DNA to undermine Parliament. They were prepared to account within the legal prescriptions of the country. They had escalated the matter to the Chair of Chairs, Mr C Frolick, because they wanted it to be resolved.
Briefing by Deputy Minister
Mr Zizi Kodwa, Deputy Minister Deputy Minister in the Presidency responsible for State Security, said notwithstanding some of the legal issues and the correspondences between the Committee and the Minister and the legal opinion, which was acquired by the Committee on the matter, the SSA did not want to come across as though they were hiding behind secrecy to avoid accountability. Despite the exchange of correspondence about the correct legal interpretation, the SSA decided to come before the Committee and explain the situation in person. In the last correspondence from the Minister to the SCOPA Chairperson, in response to the Parliamentary Legal Service Opinion, the Minister indicated the willingness and desire to appear before the Committee.
The SSA was still awaiting a legal opinion from the Senior Counsel responding to the Parliamentary Legal Services opinion, which would be available in the second week of December 2022. It was unfortunate that this was the last SCOPA meeting for the year, but the matter would be dealt with upfront because, whilst there may have been different interpretations, the SSA was of the view that if there was no convergence in the interpretation in terms of the Oversight Act and the mandate, the role of the Chair of Chairs or the Speaker of the National Assembly may be required to help the SSA and SCOPA to find some common understanding.
The SSA observed that several state entities had appeared before SCOPA, mainly SABC, Eskom, Transnet, and so on, but there may have been issues that they shared with the Committee and shared half-stories and did not present the full picture of what was going on. For example, when they said there were many executives pending vetting, there was no backstory. The SSA received 18 applications from the SABC on 22 September and another five on 27 September, meaning the applications came in different batches. There is currently only one outstanding application at the SABC, which was only received by the SSA on 29 November 2022.
He said one of the major difficulties and challenges in terms of external vetting was Eskom. When they appeared before SCOPA, they did not tell the backstory because the backstory was that when they give a “pending” report to the Committee, the perception is that the Agency is ineffective in dealing with vetting issues. Yet, the difficulty is because of the applicants themselves because they do not submit information. For example, the CEO of Eskom is still pending, and the fact was that the SSA maintained communication with him, yet the information was outstanding on his part, and he knows about it. Mr de Ruyter had promised the SSA that by the beginning of June, he would give them the outstanding documents, it was the last day of November and the SSA had not received the documents.
He said the SSA did a lot of work, and a lot of improvements were made, but they reached a cul-de-sac and difficulty in carrying out their mandate in terms of the oversight, however as soon as those issues of oversight were clarified between the JSCI and SCOPA, they would be willing and capable and eagerly waiting to present the information to the Committee.
Minister Gungubele said the bonafide of the Committee’s intentions were not in question, but when discussing such issues, it was difficult to guarantee borders that could not be crossed, which was the reason the SSA felt that Parliament should help them do their work. He appealed to the Committee to allow their process to happen because they wanted to account.
Mr B Hadebe (ANC) thanked the Minister and Deputy Minister for availing themselves to the Committee whilst still awaiting legal opinion and noted that this was a sign of an executive authority that was willing to account despite the outstanding issues relating to their work and the sensitivity around it. He said the Deputy Minister raised a concerning matter that the Committee might have been misled into thinking that the culprit was the SSA concerning the finalisation of the vetting of officials and noted that it was the duty of the Committee to unmask those who were misleading Parliament. It was unacceptable that an accounting officer was not leading by example because one would have expected that executives in SOEs would be the first to subject themselves to vetting and assisting the SSA by furnishing them with all the necessary documents to ensure all their staff members are vetted.
The Committee was furnished with information that more than 3 000 Eskom employees had issues in terms of declaration of interest and some of them were doing business and benefiting from Eskom while earning salaries from the same entity and were part of the people collapsing the entity and were the same people refusing to cooperate with the vetting process. He said this should be the Committee’s priority when it reconvenes in 2023 and implored the Chairperson to explore all possible avenues to resolve the matter of the legal opinion so that the work of the SSA could move forward and the Committee could do its oversight.
Mr S Somyo (ANC) said certain things expose themselves without being told, as the Minister’s first step was to inform the Committee that he would send the Deputy Minister to the Committee when he was not available after the first invitation from the Committee, which was a clear indication of his will to comply. He said the Committee’s interest was not in the details of the SSA’s exercise in terms of vetting, but the Committee’s interest was based on fulfillment of the Cabinet resolution to ensure that the work is done. The perception was that the SSA was not fulfilling its mandate, but the Deputy Minister’s remarks indicated a different story, which was necessary for each entity to account for these aspects for their own freedom one way or the other. The Committee wanted to know what the SSA was doing, the challenges it faced and what could be done to resolve those challenges, as well as how the work of the SSA could be improved in the future.
Mr A Lees (DA) said the Committee already had a legal opinion, did not need any more legal opinions, did not even need Mr Frolick’s opinion, and was not sure how the Committee would go forward from where they were. Perhaps it would have benefited the Committee if Adv Frank Jenkins from Parliamentary Legal Services had addressed the Minister and Deputy Minister on the Committee’s legal position that it adopted and accepted. He said the Minister had emphasised his willingness to account to him personally and to the Committee, but it was not being displayed.
He felt it was completely out of order to say they were waiting for legal opinions on the matter and then drop names to blame others and suggested that the Committee write to Mr de Ruyter directly and ask for an explanation and the validity of the accusations made by the Deputy Minister against him because it was a very serious accusation. He would have hoped that the Deputy Minister would provide a timeline of details on the communication between the SSA and the Eskom CEO because just throwing out a name was uncalled for.
“Vetting is causing huge economic stress to our country, and it must not be delayed to January or February; it must be done urgently,” he said. He said he would rather have all the entities and the SSA in one meeting to discuss the vetting issue so that every detail could be provided, and it would not feel like accusations were being made and perhaps an amicable solution would be found. He did not understand what Mr Frolick’s involvement would be in the matter because the Committee had already received its legal opinion and did not think Mr Frolick had the power or influence over the work of the Committee.
Ms N Tolashe (ANC) appreciated the presence of the Minister and the Deputy Minister before the Committee and noted that it was unprecedented for both to be attending to issues that spoke to their responsibilities as the executive. The Committee had never had issues of accountability when dealing with the Ministry of the SSA even in the fifth Parliament and the Ministry of the sixth Parliament continued that trajectory. She accepted and appreciated the explanation given by the Deputy Minister and said she would not talk about the perception of the Committee because the Committee would not be harsh to them because they perceived that they would not come to the meeting. She did not understand why there was such a perception in the first place because the Ministry always came before the Committee to account.
She accepted the slight information given to the Committee because it opened the picture on the difficulty that the SSA faced in dealing with the vetting of public officials in government and the SOEs. They should be allowed to pursue the legal opinion and all other avenues they wish to pursue if that will make them understand how best to do their work because it will help the process move forward. The Chair of Chairs is a principal responsible for ensuring that the institution of Parliament is coherent and not an ordinary member of Parliament, so the Ministry did the right thing by consulting Mr Frolick. She appreciated that the Minister and Deputy Minister were humble enough to consult when unsure of how to move forward.
Ms B Swarts (ANC) said the departments and SOEs coming to the Committee and using vetting as a shield was like fetching water using a bucket with holes because it was not helping the Committee in its work of overseeing accountability. The little insight the Deputy Minister gave on the CEO of Eskom caused her to question whether the other departments and SOEs used vetting as an excuse not to account to the Committee. She said perhaps as a way forward, the Committee and the Ministry should consider having a closed meeting without the public and the media to at least get insight on the details of the issues.
The Chairperson said he expected that the matter of the Eskom CEO was going to overshadow the discussion, but the initial meeting with the SSA was on the vetting of Eskom officials, but the Ministry raised a broader issue of legality. He clarified that the legal opinion received by the Committee affirmed its position because when the Committee received the correspondence from the Ministry, it disagreed with the position that was presented by the Ministry and then the Committee sought a legal opinion to clarify its position on the matter. The legal opinion came back and affirmed the position of the Committee.
The issue of the CEO was already on the table because the Committee was informed on 19 October that his vetting was still in progress. The only issue that was rising in the meeting was that the CEO’s vetting was not finished because he had not submitted documents. If the accusation made by the Deputy Minister was true, this would mean there was a problem because the CEO had been in the position since 2020, and the Committee was already informed of the refusal of officials to be vetted in 2019. The work that the Committee does must also be viewed as enabling the Ministry and the SSA to do its work because the CEO of Eskom and the other executives and the Board would have to meet with the Committee to explain why they were not complying with the vetting process.
If there is a need for the Committee to recommend that a moratorium for people who have not been vetted must happen, it would do it because the SCM space is very critical because it is where corruption mostly happens. The notion that vetting is negotiable in certain spaces is baffling because it totally undermines everything that has to do with public finance management. He pleaded with the Ministry to view this Committee exercise as an enabler for them to do their work so that what would remain would ultimately be shortcomings from their side. If an official is expected to be vetted, they must subject themselves to vetting or resign. The JSCI Members and even the staff members of Parliament who serve there must be vetted; if they are not vetted, they do not serve, so if you are a person in the public service space, an executive or an SCM practitioner who must be vetted, and you refuse to be vetted you cannot be appointed.
Eskom must provide an explanation including, but not limited to, the CEO and the 100 people that need to be vetted, but the Committee can only be able to do that if the Ministry reveals who is refusing to be vetted or has not submitted documents. He said the Committee would respect the parliamentary process and would await the response on the legal opinion and the response from the Chair of Chairs. He concluded that Parliament, through its legal services, is saying to the SSA, what SCOPA wants is within its constructs. “An unvetted CEO of any SOE is a problem, but when they refuse to be vetted, it is a catastrophe and is completely unacceptable”, he said.
Deputy Minister’s response
Deputy Minister Kodwa said they shared the sentiments expressed by the Committee and agreed that it could not be that vetting can be perceived as an option in the public service. He said the reason they put great emphasis on Eskom was not only based on its negative impact on the economy, but also on individual households in the country. The SSA puts a lot of value on Eskom because they understand its impact on the country. He said when they come back, they will share with the Committee some of the interventions put in place to help Eskom expedite its own vetting. For example, at some point, the SSA had members stationed at Eskom for vetting, although vetting was not the only work they did at Eskom. He said they would share the outcome of the legal opinion with the Committee as soon as they received it in the second week of December and expressed that their desire and willingness to comply and account to the Committee must never be doubted or questioned.
The Chairperson said the Committee’s legal opinion affirmed the Committee’s position so any legal opinion that will arise must be understood in the context that it is an opinion because this was also a political consideration. It was also anchored in the Constitution. The Committee would not be difficult about the consultation process followed by the SSA, but the issue of vetting was a non-negotiable issue for the Committee. Vetting must also have a timeline because it has been a challenge at Eskom since 2019 and was still a challenge at the end of 2022. He said the people who should have been vetted and have not been vetted and remain at work were probably held up by the SSA, but those who were holding up the vetting because they were not submitting documentation should not be at work. They should either accept venting as a requirement or ship out.
Negotiating due process is like negotiating audit outcomes and trying to strong-arm the AG in a particular direction and then going to court, which is unacceptable. The Committee views subpoenas as an enabler for Parliament to do its work and that must not be viewed as a threat, but as a commitment when a stumbling block arises. Vetting is a difficult process, but it is necessary to preserve the integrity of the public finance management space of the country. When you accept the responsibility of the office, you accept the processes that come with it.
He said the Minister would know better that State Capture thrived because due processes were neglected, and people were given carte blanche or blank cheques to operate outside the parameters of the law and due processes were relegated to the periphery of government and governance. “We must not repeat the mistakes of the past. Irregular, fruitless, and wasteful expenditure is on the increase, contract management is one of the perennial headaches, human resource management is a headache, the AG’s audit outcomes tell a horrific story, so why should we keep people in the financial management space and SCM space, whom by virtue of not being vetted are already a risk?”, he asked.
The Chairperson said the Committee would schedule a meeting along with receiving the response to the legal opinion sought by the Ministry to hear them out. He suggested that the Committee start with the SSA vetting issues when Parliament resumes in 2023 so that the Committee could be informed about everything. He suggested that the Committee meet with the SSA on 24 January 2023 in its first meeting for the year and noted that if there were any interventions from the House Chairperson, the Committee would await that.
Mr Lees said the Committee received its legal opinion within seven days and suggested that the Minister submit their legal opinion to the Committee within seven days. Then, the Committee could perhaps have a virtual meeting to consider that legal opinion because leaving the matter until January would be too long.
The Chairperson said the difficulty with the virtual meeting was that the Committee would need a special application because Parliament rises on 6 December and there was a meeting of the Chairs of Committees on the programme, so it was unlikely that permission would be granted. Parliament had already been extended by a week, as it was supposed to rise on 1 December. He said he would consider Mr Lees’ suggestion and asked the Minister to forward the legal opinion to the Committee once they receive it so the Committee can study it and send it to Adv Jenkins in consultation. The Committee would have a meeting with the SSA at the first available slot as per the programme, but if there were any exceptional circumstances, a special meeting would sit.
Mr Somyo agreed that 24 January 2023 would be ideal as he believed the Committee had made its intention of the meeting and what it would be about clear to the Ministry.
Mr Lees asked if he was mistaken to think that the Ministry had already obtained one legal opinion and was awaiting another.
Deputy Minister Kodwa said they were going to consult the services of a Senior Counsel by 2 December and would revert to the Committee with the feedback.
Mr Lees said his question was whether the Ministry had already obtained one legal opinion.
Deputy Minister Kodwa said the legal opinion they were referring to was in response to earlier correspondence between the Minister and the Chairperson acknowledging the legal opinion received by the Committee.
Ms Tolashe said the Committee would not want to behave like the special branch where they would have to deduce something that did not exist. Sometimes people would ask questions that seemed simple when their true intentions were to pin you down.
Mr Lees interjected to say if Ms Tolashe was implying that he was a part of the Special Branch, that was not true.
Ms Tolashe asked to be protected by the Chairperson as she did not want to be undermined and deserved to be respected as a Member of the Committee. She asked Mr Lees to let her finish what she was saying, as she let him finish what he said and rejected his attitude. She refused to be threatened by a white man as a black woman and felt Mr Lees undermined her.
The Chairperson asked the Members not to lose the defining feature of the Committee, which was the unity in its diversity, which enabled the Committee to do its work. He said he would study the answers and would come back on the matter when Parliament resumed with the transcripts and asked Ms Jackson to transcribe the issue as a matter of urgency and he would consult and come back with a ruling to the Committee.
The Chairperson thanked the Minister and Deputy Minister for availing themselves for the meeting and excused them as they had to rush to another meeting. He also thanked Adv Jenkins for attending and assured him that the Committee would forward the Minister's correspondence after receiving the legal opinion to prepare for the meeting on 24 January. He thanked the Members for the good year and the commitment shown by the Committee to the work and their consensus on all the reports they submitted. He thanked the Committee Support Staff and the media for being ever present to record the proceedings of the meetings and wished everyone well for the December holidays.
The meeting was adjourned.
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