The Standing Committee on Public Accounts (SCOPA) held a meeting in Parliament with the Special Investigating Unit (SIU), the South African Police Service (SAPS), and the Directorate for Priority Crime Investigation (DPCI/HAWKS). In the meeting, the SIU and the Hawks briefed the Committee on the intelligence report commissioned by Eskom's former Group Chief Executive (GCEO), Mr Andre de Ruyter.
There were several issues that the report unearthed. One of the issues was a possible charge of maladministration against Mr De Ruyter for authorising a clandestine investigation into the operations of a state-owned entity. The SIU told the Committee that Mr De Ruyter had set a bad precedent by commissioning an investigation of a state entity without authorisation from Eskom’s board, which triggered serious governance issues. The unit was considering the circumstances, and it would make recommendations on action that could be taken to hold Mr De Ruyter to account once the investigations had been completed.
The report also revealed that the contract for the clandestine investigation into Eskom had been entered into between Business Leadership South Africa (BLSA) and the George Fivaz Forensic and Risk organisation. The SIU said that BLSA and Fivaz should have known it was against the rule of law to investigate a state institution without proper authorisation. Some Members of the Committee cautioned the law enforcement agencies against pursuing the messenger, rather than the substance of the report.
Ultimately, the Committee held that the law enforcement entities were doing good work and progressing. It urged the agencies to continue to arrest more people and leave no stone unturned in dealing with the Eskom matter. An ANC Member insisted that whether it was senior politicians, backbenchers like those serving on the Committee, or anyone else who was involved, they must face the full might of the law. The entities assured the Committee that the names of those involved would be announced on a legal basis once the investigations were completed.
Mr S Somyo (ANC) was the acting Chairperson for the meeting in the temporary absence of Mr M Hlengwa (IFP). Mr Hlengwa was unable to attend due to his involvement in the preparations related to the laying to rest of the late IFP emeritus President, Prince Mangosuthu Buthelezi. The acting Chairperson explained that Prince Buthelezi had served the institution of Parliament since 1994. A moment of silence was observed by the attendees of the meeting in his honour.
The Chairperson said that the meeting was going to cover the matters of interest that the Committee had highlighted in their correspondence with the Special Investigating Unit (SIU), the Hawks and the South African Police Service (SAPS). He pointed out that Eskom’s role in guaranteeing energy availability was inclusive of the matters of interest they had communicated to the agencies, and it would be dealt with in the meeting.
Briefing by SIU
Adv Andy Mothibi, Head of the SIU, told the Committee that the SIU had two proclamations to investigate the affairs of Eskom. This included contracts relating to goods, works and services by Eskom’s power stations and head office. The unit was pursuing eight civil matters before the courts, with a financial value of contracts close to R8 billion. The SIU investigations into Eskom had resulted in recoveries of R1.577 billion and had set aside contracts or civil actions worth R10.2 billion.
Briefing by Hawks
Lt General (Dr/Adv) Godfrey Lebeya, National Head of the Directorate for Priority Crime Investigation (DPCI), told the Committee that the Hawks were looking into criminal allegations. The criminal allegations involved:
The 'Coal Mafia'
- Activities of the “Coal Mafia” including coal theft and associated criminal practices.
- Multiple groups involved in illegal coal yards were identified in the intelligence reports.
- Specific groups operating in and around power stations in Mpumalanga have been identified.
Prominent and influential persons and entities
- Several high-ranking and prominent influential officials, their involvement in alleged criminal activities, Eskom employees, corrupt SAPS members and security personnel.
- Intimidation and the threat of violence towards Eskom members.
- Extensive and life-threatening intimidation had been raised towards Eskom employees and any other person who became an existential threat to individuals.
Ms B van Minnen (DA) said that there was a report or investigation that appeared to be authorised, but the real takeaway was that Eskom was unable to perform its duties and mandate, which was why this country found itself in this crisis today. Given what they had seen and heard about Eskom relating to the chronic issues of corruption, the allegations and indications of cartels, the issues with coal -- everything that had been rumoured about this state entity for years -- it was not unexpected that one had a group chief executive officer (GCEO) who felt the need to have some kind of investigation done using extra-legal measures to put together cases, make them trial ready, and bring the evidence to court, which would be the job of law enforcement under normal circumstances.
It may be argued that what the GCEO did had potentially triggered governance-related issues, but to shoot the messenger and ignore what the messenger was saying was not a responsible way of investigating a state entity currently crippling the country. What Adv Mothibi was saying was true -- the GCEO’s information had been helpful in terms of giving some indication of where to look, and its usefulness could be harnessed by the Hawks, the SAPS and the SIU. Previously, the Committee had been concerned that there had been very little progress from the law enforcement and intelligence agencies, so it was refreshing to hear that something was happening.
However, one must bring up the issue of the current board and its chairperson. The last time they appeared in front of the Committee, the current chair appeared rather disengaged from trying to investigate what was going on within the organisation. It was also important that the Committee follow up on the matter relating to Brigadier Burger, because the matter called for grave concern about what had or had not been conveyed accurately to the Committee. Had there been genuine attempts to move forward with these investigations? There may have been reluctance in some areas to rely on the Fivaz report, but was there at least an attempt to follow the signposts and genuinely unpack what was happening at Eskom?
It was all good and well to blame unemployed foreigners, but this Committee itself had found it very hard to access Eskom installations, so it was unclear how unemployed foreigners were going to be able to gain that access. It would therefore be greatly appreciated to have some sort of confirmation from the Hawks and SAPS that indeed, investigations were being made and evidence was being looked for, and that one could hopefully see progress in this matter at a slightly faster rate than this Committee had seen in the last year and a half. Most of these meetings had centred on people denying what others had been saying, with no genuine forward movement. Instead, it was about an argument focused on semantics, which certainly derailed the possibility of progress.
Mr B Hadebe (ANC) responded to the Chairperson’s question regarding how intelligence had been defined by the law enforcement agencies, and cited Act 108 of 96, Chapter 11, section 209. Intelligence referred to ‘the establishment and control of intelligence services. Any intelligence services other than any intelligence division of the defence force or police service may be established only by the President as the head of the national executive and only in terms of national legislation. The President, as the head of the national executive, must appoint a woman or a man as a head of each intelligence service established in terms of subsection (1), and must either assume political responsibility for the control and direction of any of those services or designate a member of the Cabinet to assume that responsibility.’
As the person who initially wrote a letter and requested Scopa to pursue the matter on behalf of the political party deployed them, he took the responsibility to welcome the arrests made thus far. The Committee truly appreciated and congratulated the dedication and hard work displayed by Hawks, the SAPS and the SIU. These agencies should keep up the good work. They were doing great work, but one must resist the temptation to applaud fish for swimming, but credit must be given where credit was due. They must continue to arrest more, and leave no stone unturned in dealing with this Eskom matter. Whether it was senior politicians, backbenchers like them in the Committee or anyone else involved, they must face the full might of the law. "Do not be threatened nor intimidated by anyone in executing your mandate."
There were a few areas of concern arising from the report. It was quite concerning to note that George Fivas was not a registered vendor of Eskom, and to date, they were not willing to disclose their funders. It was unknown for what reason and to what extent the funders were related to Eskom. This was very concerning. The Committee had also been informed that the person, company, or entity responsible was Business Leadership South Africa (BLSA) because the report was given to them. They did not know to what extent those agencies accessed Eskom information and the method used to do so. Adv Mothibi had mentioned in his report that out of 54, 32 matters fell squarely within the SIU’s purview and mandate. Under whom did the other 22 fall? Would the remainder be pursued by the Hawks or the SAPS?
The Committee was now aware that Eskom had not authorised the former GCEO to conduct the so-called intelligence report. The principles of legality say that one cannot exercise power or perform any function which was not assigned to him or her. So, since there was no authority given to the former Chief Executive, did he have powers to conduct the investigation in terms of his fiduciary responsibilities and roles assigned to him? He might not have been granted authority by the accounting authority, but did he, one way or the other, have such powers to do what he did? If indeed he did not have such powers, what should be the next step to be pursued? Had the agencies exhausted that aspect in terms of his conduct?
The Committee welcomed and appreciated that some of the findings contained in the report did warrant further pursuit and sanctions, or a verdict in terms of what it contained. However, the Committee had noted that there was no authority so the report could not be disregarded in its entirety, and the matters could be dealt with separately to ensure that the modus operandi employed to arrive at this matter was dealt with justly.
Adv Mothibi held it to be true that even though the intelligence report conducted by the former GCEO appeared to be unauthorised, the report and its contents could not be ignored. The SIU was indeed following up on the information that it contained. In particular, the criminal aspects contained in the report would be investigated accordingly.
Mr Viven Govender, Chief Forensic Investigator, SIU, confirmed that there were 54 broad themes in general throughout the reports. All 54 themes had elements of criminality that had been subsequently referred to the DPCI. Within that 54, there was also an overlap of 22 matters that fell within the SIU mandate. So, there were 54 matters in total, with 22 overlapping matters falling into the SIU mandate that warrant its involvement. These numbers may change depending on how the investigations went and what the findings were. They may reduce or they may increase. The SIU could be guided only by the evidence to see where that takes the Agency.
Adv Mothibi commented on the usefulness of the report versus the authorisation given to conduct it was a very critical distinction to make, and both would equally be attended to. One could not perform powers that were not assigned to him or her. Having engaged with Eskom, the SIU had gathered that the accounting authority had not authorised the commissioning of the report.
The Agency would scrutinise the former GCEO’s contract of employment to establish whether he had the power to embark on such an investigation in terms of his employment contract. If he did have the authority, which was unlikely, then he probably would have contracted on behalf of Eskom. However, the contract was with private entities to investigate the affairs of a state institution, which was what the SIU found fundamentally problematic. It set a concerning precedent, where private entities could enter into contracts without state approval to investigate state institutions. It was an unacceptable scenario.
No matter how good the GCEO’s intentions were in terms of assisting with the investigation and ensuring that it unravelled the cartel nature of the institution’s criminality, there were governance frameworks through which these investigations should be done. It was very important that the impression that was cultivated was that matters must be dealt with in accordance with the rule of law. There could be no CEO of a state institution, or even a corporate institution, who could act outside of the rule of law, no matter their good intentions. If the GCEO did not have the powers to conduct the investigation, the SIU would have to make an assessment and seek counsel on the kinds of consequences for such behaviour. Once the pathways to recourse had been established, the Agency would then return and make its recommendation to the Committee.
Lt Gen Lebeya confirmed that the DPCI was genuinely serious about the investigation relating to Eskom. The organisation was always prepared to pursue any information, however it may come by. Suspects would reveal certain information that the organisation would use to advance its investigations. A senior and experienced colonel had been assigned to analyse the information.
He said Mr Hadebe had read directly from the Constitution when defining what was meant by intelligence and who had the authority to categorise certain information as 'intel.' There had been amendments made to the 1996 Constitution, such as in 2005, but essentially, there were relevant departments that the organisation had asked to assist with the interpretation and classification of the information.
General Fannie Masemola, National Police Commissioner, said that SAPS was making attempts to follow up on the issues relating to Eskom. As reported to the Committee previously, arrests had been made, and soon, there would be more than 20 arrests of individuals involved in the corruption at Eskom. Most of the 54 cases were being investigated by the SIU and SAPS, and these were cases related to the illegal storage of coal, for example, so SAPS had been continuing to deal with these cases of coal cartels, and there was progress and forward movement on them.
Mr Hadebe cautioned against neglecting the conduct of the former GCEO. Some contracts had subsequently been awarded because of the so-called intelligence report, and the manner in which those contracts were awarded was under the pretence of emergency contracts. It appeared that emergencies could have been created for certain individuals to benefit from them. An investigation into all these emergency contracts in terms of what the surrounding circumstances were, and how those emergency contracts were awarded, must be a point of focus over and above the fidelity services and other contracts.
The issue of sabotaging Eskom, on the one hand, and the issue of becoming the service provider employed to clear up the mess caused by the sabotaging, on the other hand, were matters that must be properly probed. The law enforcement agencies must investigate the matter. The way forward for Scopa was an important discussion when considering whether the Committee had done enough to deal with the matter. Should the Committee now allow the relevant law enforcement agencies to pursue the matter with minimal oversight?
Work had been done, particularly as it related to slide 13, where certain contracts that amounted to R9.7 billion were before the court in terms of civil litigation. This was an indication that work was happening. Some contracts had been set aside to the value of R10.2 billion. Clearly, this was a demonstration that work was happening in this regard. There should be no misinterpretation that progress was not being made as it pertained to the allegations of fraudulent contracts.
The main question, therefore, was whether the Committee had done enough to ensure that all the culprits involved in stealing taxpayers’ money were brought to book so that it could conclude its role without missing any detail. Judging from the presentation at the meeting, it seemed that Scopa had dealt with the matter thoroughly.
The Committee must also be concerned with the role of the Business Leadership South Africa
(BLSA) in this matter because the wrong precedent would be set, where those with money could do as they please, walk into any state institution, call their friends to investigate, and arrive at a particular conclusion. This was being raised as an issue because there was a trend of people who leave Eskom and end up landing great jobs, publishing books in the name of being a public servant, and using the state entity’s resources and time instead of focusing on what they were employed to do. It could not be business as usual when the private sector was involved. It must be called it for what it was, which was corruption. Could the BLSA be forced to disclose their funders?
Adv Mothibi indicated that both the conduct of the former GCEO and the BLSA would be investigated further, and the Agency would advise, having regard for the Committee’s comments, on what appropriate recommendations could be made. In light of the current legal framework, the Agency would have to look at what it had done and assess whether it passed legal scrutiny. When the investigators interviewed one of the members of the BLSA, it was a result of the cooperation that they had offered the SIU. With further investigation, the SIU would consider the legal prescripts in terms of subpoenaing the BLSA for interviews to disclose other funders. On whether Scopa could force the BLSA to disclose, considering the legal prescripts, that was a matter that the Agency would leave to the Committee to determine.
Mr Lees said that he was a fan of Adv Mothibi’s work and the success of the SIU. What was astonishing was how much vigour and effort was being put into pursuing the messenger, and not the substance. In South Africa, every single state entity had its problems, and 99% of these entities were a disgrace, and they were collapsing. These entities had had CEOs who had acted outside of the rule of law, yet there had not been as much vigour to follow up on those CEOs who acted deliberately and consciously in a way that was not in the interests of South Africa, nor South African law.
In this case, there was a GCEO who may very well have been delinquent, but he was attempting to deal with the issues of the company that he was heading in the best way possible, and this Committee had not been proven otherwise regarding the GCEO’s intentions. Why were they not pursuing the other CEOs in the same fashion? Was it because they had connections? Adv Mothibi and Gen Lebeya had conveyed that they were not at liberty to reveal any names, but was the name of David Mabuza in the report?
The Chairperson pointed out that Adv Mothibi and Lt Gen Lebeya were part of the meeting because the Committee had extended an invitation to them, asking them to present their progress. The Committee had insisted that they deliver certain information, so the Committee was not obliged to prosecute them for doing exactly what had been asked of them. So, in answering Mr Lees’s question, it was important to remember that the Committee was not looking for anything general, only the specific set of demands that were made. This meant that Adv Mothibi and Lt Gen Lebeya were not at liberty to divulge anything that did not have to do with the specific reasons that had been called for by the Committee.
Adv Mothibi confirmed that they certainly were not pursuing the proverbial messenger over and above the substance. In the presentation, it had been mentioned that the Agency looked at the authority to commission the investigation and the usefulness of the report. It was indicated during the presentation that the Agency could not ignore the contents of the report. This was important to note, and the contents would be pursued with rigor. The Agency had also indicated the joint operations with DPCI regarding the substance of the report.
There were reports that the SIU had presented before Scopa where members of the previous board, including the executive authority and senior management of Eskom, were being pursued rigorously in civil courts and criminal courts. There was no difference as it pertained to this particular matter. The Agency would pursue all matters without fear, favour or prejudice.
The good intentions that the former GCEO may have had in commissioning the investigation did not preclude the Agency from inquiring about the potential governance issues related to the unauthorised investigation so that the Agency could make recommendations that would inform and guide state institutions going forward. Irrespective of what position in life one holds, and irrespective of each name that appears in the report, the Agency would pursue every one. There were names mentioned in the report, but legal constraints protected those names from being publicised. Respectfully, the names would be revealed when the evidence obtained was enough to allow the SIU to do so within the constraints and framework of the law.
Mr Lees said that the question about the name had been specific, and since Adv Mothibi had declined to reveal the name, that would be accepted. However, the question of whether the SIU was pursuing the other CEOs was still up in the air. For instance, the Passenger Rail Agency of South Africa (PRASA) had been denuded due to previous board members and CEOs not following the rule of the law. Was the SIU pursuing those board members and CEOs? It was important to remind the SIU, DCPI and SAPS, that South Africans were not focusing on individuals. South Africans were focusing on the rape of the state by individuals and groups who left their term in office without consequences.
It was pleasing to hear that SAPS had arrested seven people, but in truth, that was quite a small number. His criticism should not be mistaken as denigrating the good work that the SIU, DCPI and SAPS were doing, because it was good work. However, the question was, who was in jail? Were they there for 30 plus years, and why was there not a plethora of people in prison? Given the good work that the SIU was doing, the concern was that what was holding the Agency back from pursuing more culprits, were resource constraints in terms of funds and people. Could that be an element explaining why they were not seeing more than seven arrests? If the state were to make the Agency stronger resource-wise, surely there could be far more progress and one could satisfy South Africans that the state was changing and putting more bad guys behind bars.
The Chairperson reminded the Members about the agenda. The Committee was no longer sticking to the agenda items. The Members were talking about PRASA, whereas PRASA and Transnet had been in Parliament with the Committee a few days ago, and these questions could have been ventilated during those meetings. So, to be fair to the officers in attendance, the discussion must be confined to issues relating to Eskom.
Mr Lees insisted that, in essence, the question was about Eskom. The gist of the question was whether the SIU would have made more progress had the resources been available to do so.
Adv Mothibi said that if the Committee would allow it, the SIU would appreciate the opportunity to return and present their report on PRASA so that they could demonstrate that there had been focused attention on that institution, and who had been identified and held to account. There had been an increase in the number of proclamations being proclaimed. At their last count, there had been more than a 100% increase, which was quite substantial. This was increasing in the face of other ongoing investigations, including the Eskom investigation. The SIU continued to present their case for more resources. If resources were increased, the Agency would be able to do more.
Mr Lees reassured the officers in attendance that he would surely do his best to ensure that agencies such as the SIU, Hawks and the National Prosecuting Authority (NPA) would get better resourced, although he was not too sure about the SAPS. He said to Lt Gen Lebeya that despite their sparring going as far back as 2018 about the slow progress of the Hawk's investigations, such as the Steinhoff investigation, where Markus Jooste still runs free after six years, would there be more progress if they were better resourced, or was the slow progress not about a lack of resources?
Lt Gen Lebeya asked for clarity regarding whether the person who was obliged to report was the messenger, or whether the one who compiled the report was the messenger. Generally, the DCPI did not pursue any individual. The Hawks looked at the crime. This was illustrated in Tlhakudi v the President of South Africa and Others (2022). The work it had done in this case was that the Agency managed to arrest individuals implicated in Eskom’s Kusile power facility fraud involving R745 million. The matter was ready to be put to bed only when Michael Lomas, currently in the UK, could join the others sitting in the dock.
At this stage, it did seem as if matters were progressing slowly, but some individuals were in hiding overseas and they were delaying legal prosecution, and exhausting legal resources in doing so. These matters were complicated, and that was why they took time. When one talked about one case, that one case would be voluminous because of the numerous charges attached to it. The practice of the DPCI was that names were mentioned only when the culprits were charged, and not during the investigation. Regarding resources, the Agency was currently functioning at 52% of its capacity. The volume of work, which was more than 22 000 cases, required more resources than the entity currently had.
Mr Lees commented that resources were strained in the country largely because of the bail-outs of state-owned entities (SOEs) like Eskom. Rule 168 provided Parliament with privileges for Members, but it equally provided privileges for people appearing before Committees to answer specific questions, like whether the name of David Mabuza appeared in the reports.
The Chairperson indicated that it was important to accept the standing rule from the SIU and DPCI’s side regarding investigations. They should be afforded the opportunity to finish their work, and when the time allowed, they would be better prepared and within the legal frameworks to pronounce the names that appeared in the report. Even in a court of law, up until people appeared in court, there was no naming of the individuals. So, that kind of process must be protected and allowed by the Committee Members. It was only fair, because imagine an instance where one named someone in an allegation that was not proved, and they were not guilty -- the result would be that their names had been tarnished and damaged, which was unjust and unfair.
Mr Hadebe clarified the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act said that if a person appeared before the Committee, for that person to be protected, they must take an oath or affirmation before the start of the meeting that whatever they say would not be held against them. If they had not taken that oath, then they were not protected. The Committee could not decide to invoke that oath at the end of the meeting.
Ms N Makamba-Botya (EFF) insisted that the Committee needed a legal opinion on the matter concerning the right to receive the names of people who were being investigated. The issue was twofold. On the one hand, there was the Committee which had the jurisdiction to get information that it needs, and on the other hand, the legal side had its own requirements regarding not disclosing names before the individuals were charged. The legal opinion should be able to help the Committee determine which institution’s privileges and requirements override the other.
She commended the SIU on their recovery of the R1.77 billion. On page seven of the Hawk’s report, they mentioned the issue of intimidation, threats and violence against Eskom members. As part of the investigation process, were any measures put in place to ensure that Eskom employees were protected against the potential intimidation and violence against their lives? In many cases, whistle-blowers were assassinated to destroy evidence, so this was a critical question. Slide 13 referred to the 85 entities that had been taken to administration in terms of referrals to the South African Revenue Service (SARS) and blacklisting -- was there a list of those names, and could they also be made public?
Lt Gen Lebeya confirmed that protection had been extended to those intimidated and threatened. Protection was generally extended to victims of threats and intimidation on a case-by-case basis. Each witness was engaged, and how the witness protection system functioned in such cases was explained to them, and an offer of protection was extended to them.
Adv Mothibi said the SIU had not detailed the companies that had been referred, because the focus of the meeting was on the Fivas Report. It was willing to compile the list, in conjunction with the National Treasury and SARS, and share it with the Committee. It would refer it to the Committee secretary.
Ms Makamba-Botya said that four people had allegedly defrauded Eskom of R4 million. Could a list of those names be published?
The Chairperson reiterated that until the agencies had finalised their investigations, the names could not be published based on legal constraints that had been mentioned previously.
Ms A Beukes (ANC) asked who the Fivas Report had been meant for when it was finalised, since Eskom did not authorise the report. Were all the employees who had undergone disciplinary hearings still in the employment of Eskom? What challenges had the SIU faced when engaging Eskom? Concerning the presentation by the Hawks stating that the allegations had yet to be proved, did this mean that affidavits had not been collected and attached? Why had the funders been kept a secret if their contributions were a noble act?
Adv Mothibi indicated that in the presentation, they had been forthcoming with the parties to the contract, which included BLSA and the Fivas company. The report was submitted to the BLSA, so it appeared that the report was meant for BLSA. On the referrals for disciplinary action, the charges ranged from a failure to disclose interest, doing business with the state without appropriate permission, and so on. Eskom had started taking action against most of those officials.
Lt Gen Lebeya confirmed that when the DPCI said that the matters could not be proved or corroborated, it indeed meant that there were no affidavits attached. It was only the information, mostly in the form of written notes.
Ms Beukes inquired about the legitimacy of the report if it was made up mostly of notes.
Lt Gen Lebeya explained that the investigation was part of the process of determining whether the information in the report amounted to truth, or whether it was simply allegations that could not be corroborated.
Ms M Lubengo (ANC) referred to the issue of criminal allegations, and noted that the presentation indicated only the multiple groups involved in illegal coal theft and storage and the groups operating in Mpumalanga, but there was no mention of arrests. Had arrests been made on these particular groups? Also, how long has this issue been investigated?
Lt Gen Lebeya clarified that the presentation had been an assessment and analysis of what was contained in the Fivas Report, so the arrests and cases being handled by the DCPI were not necessarily linked to the information emanating from the report itself. The report was quite recent, but the investigations and arrests had been ongoing before the report was brought to the DCPI’s attention.
Ms B Zibula (ANC) said that the Committee would be pleased to see the finalisation of the report as soon as possible. Their constituencies were asking for a conclusion regarding what Mr De Ruyter had said, so the officers of the law should please assist them by giving them answers and reaching finality as a matter of urgency.
Adv Mothibi assured the Committee that they would ensure that the turnaround time and the speed of the investigation were such that they could deal with the substance of the report and the information so that they would be able to pronounce publicly what the outcomes of the investigations were. Also, the SIU was looking not only at the emergency contracts, but other contracts that were concluded were also being investigated.
The Chairperson noted Mr Lees’s concern about how the Brigadier Burger issue may influence the Committee’s way forward. There had been correspondence with the Speaker alluding to the fact that Brig Burger was not prepared to come before the Committee. The latest correspondence referred to the fact that he could be prepared to come before the security cluster-related committees. In the first instance, when he could not come before the Committee, he had told the Commissioner that he was not coming, so it had been clear what Brig Burger’s intentions were as far as the correspondence had clearly indicated. It was up to the Committee to decide what it wanted to do regarding Brig Burger’s declared intentions. Mr. Lees was therefore correct in saying that when they decide on the way forward, they might as well frame the way forward in terms of how they also deal with Brig Burger.
Ms Van Minnen said it was unfortunate to propose pushing everything under the joint intelligence cluster. A certain Member of a political party had removed a Member who was not following that political party’s caucus line on the subject. It was something that the Committee should guard against. In the letter sent to the Speaker on Brig Burger, he made certain allegations about the Police Commissioner’s statements to this Committee in June. If what he said was indeed factual, there was a certain fragility with the truth when it came to informing the Committee as to why he was not before the Committee. If that was the case, it was a very serious matter. In terms of precedents, the misleading of Parliament was something that could potentially carry quite serious sanctions. It was something that they needed to look at in the way forward. It was something that could not be ignored.
The Chairperson suggested that if the Committee wanted to do something about the Brig Burger matter, then perhaps they should refer the correspondence forwarded to the Committee by the Speaker to the legal office in the institution, so that they could outline what kinds of options were available and the Committee could then take the appropriate action that was within the legal framework. There were very critical institutions tailored around matters of security, such as the ARMSCOR, Denel, and various other SOEs which carried heavy intellectual property (IP) into their own operational mandates, which needed high protection.
When one found some individuals who were part of these boards, who were exposed to critical information and may at some point engage in some particular investigations, there was a serious threat regarding the information of such institutions and a threat to the country. How could they safeguard the fiduciary responsibility of people who were involved in such institutions as board members? In the Committee’s way forward, they needed to interrogate how to deal with this. Some of the information revealed was based on good intentions, but those intentions must also be based on law.
Mr Hadebe stated that he had mentioned that the Committee needed to consider what Brig Burger had highlighted previously in terms of his reservations and fears, and whether the Committee was still adamant that he ought to appear before the Committee. The meeting could happen if it was closed so the Committee could receive the information it believed was still outstanding. However, the Committee needed to ask itself whether there was still any outstanding and relevant information for it to conclude its work. After receiving the intelligence report update and the preliminary findings from the SIU and the Hawks, the Committee seemed to be on the right track.
In terms of cases before the courts, there were clear demonstrations that the work was ongoing. The Committee ought to allow the relevant law enforcement agencies to continue and finalise the work that they were currently doing. Once the Committee had the final findings and recommendations, they would then determine their way forward. Scopa appeared to have done everything within its power, function and mandate to ensure that nothing was swept under the carpet when it came to Eskom shenanigans, corruption, manipulation of systems and sabotage.
The Committee had exhausted its function. It had called all the key and relevant witnesses, including the author himself, Mr Andre de Ruyter. The Committee had obtained the intelligence report from the SIU and Hawks. The Committee should let them continue with their work. They should give the Committee quarterly reports until they reach the stage where they produce the final report. There was no need to still pursue Brig Burger, but the Committee needed to correct the story that had been shared by the National Commissioner concerning what Brig Burger had been saying.
Lastly, the Speaker, as the presiding officer, should assist the Committee by responding to Brig Burger and giving the Committee a way forward on how to deal with this matter. The locus standi of the Committee was being questioned, as it had been told that it did not have the right nor the jurisdiction to interact with Brig Burger. Whether this was true or not, the legal opinion ought to assist the Committee. The Committee should not overstep its function. The job of the Committee was not to investigate, but to provide the function of oversight entrusted to it to ensure that the public purse was not misused. Any abuse of the public purse would warrant the Committee’s oversight. If any other issues needed to be referred to the law enforcement agencies, those issues would be referred to the relevant authorities.
The Committee would see the matter to its finality, monitoring the quarterly reports by the agencies closely. The Committee still had a few months before the end of the sixth administration. Nature allowed no vacuum. Whoever came after this Committee’s term would also ensure they pursued this matter. This Committee would prepare a legacy report to ensure this matter was not swept under the carpet.
Mr Lees said that the Chairperson’s proposal was a good one. The Committee had agreed that it would subpoena Brig Burger if he refused to come voluntarily, so the proposal to ask for the parliamentary legal office to give the Committee a legal opinion on the authority to subpoena the Brigadier, and if the Committee had the authority, needed to be done. There was no need to hide behind a screen of secrecy or security. This was the People’s Parliament, where things were done in public.
He said that during his 15 years in Parliament, there had needed to be a debate about the public nature of Parliament, and time and time again, the fact that it was public had always been the answer. Could they subpoena, and could Scopa do that in this instance? To add to the proposal, he asked that the Committee get a legal opinion that would ensure that the Committee’s questions were answered even when it came to naming people, not only in this instance, but for future meetings.
There was no question that this Committee had to proceed with the Eskom matter because that was the Committee’s job. The specific question was whether the Committee should continue interrogating the Fivas Report, looking at its contents, such as the malfeasance and corruption. There was a bit of nuance in how the Committee should proceed.
The Chairperson noted that there were a number of views on how the Committee ought to progress. In essence, those with legal grounds to handle the issues should continue to interrogate and ventilate those specific issues they had jurisdiction over. The biggest takeaway was that the Committee had encouraged people to accomplish the tasks that they had achieved. The Committee appreciates that at least it had made that contribution.
The SIU and DPCI had substantive areas of action that they had worked on, and were continuing to do so, and the Committee must appreciate that the work was being done proficiently. The question of names needed to be clarified by the parliamentary legal office, and the Burger matter would be under legal scrutiny even if he was on pension. The matters had been dealt with through the Committee’s diligent exercise. The DPCI, SIU and SAPS were greatly appreciated for their time and work. Punches were thrown, but they were not physical punches, just in the interests of justice. As a Committee there was still work to be done so that it could finally write a report to Parliament.
The meeting was adjourned.
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