Eskom corruption & related matters: Discussion on the legal opinion regarding Brig J. Burger

Meeting report

The Chairperson welcomed all Committee Members to the meeting. He indicated that the meeting was being held virtually because Parliament does not have any sitting in the afternoon and proceeded to outline the agenda of the meeting. The Portfolio Committee was to receive the parliamentary legal opinion on the Brigadier J. Burger Eskom-related investigations. In September, the Portfolio Committee requested guidance on the matter following a letter written by Brig Burger to the Speaker of the National Assembly, Ms Nosiviwe Mapisa-Nqakula, in which he stated that the Committee was not empowered to deal with Eskom-related matters. The Committee will decide on the matter after the Parliamentary Legal Advisors present the legal opinion.

Legal opinion from the Parliamentary Legal Advisor

Adv Frank Jenkins, Senior Parliamentary Legal Advisor, took the Committee through the legal opinion requested by the Portfolio Committee.

The Parliamentary Legal Services office was requested to advise the Chairperson of the Standing Committee on Public Accounts (SCOPA) on the further treatment of a letter to the Speaker from Brig Burger indicating that he cannot avail himself to appear before SCOPA to answer questions about the ongoing investigation by it into the allegations of corruption, criminal activity, and maleficence at Eskom. Adv Jenkins highlighted that the Committee's request was to address whether there is a legal basis to summon him to appear before SCOPA, considering Brig Burger's refusal to avail himself for questioning.

He continued to provide a brief background on the matter at hand. He indicated that the office of the Parliamentary Legal Advisors is aware of the allegations of corruption, criminal activity, and maleficence made on 23 February 2023 by Mr Andre de Ruyter, the now former Group CEO of Eskom. In his statement, Mr de Ruyter indicated that “This officer had full access to all the intelligence gathered and has stated to me that he has kept his line command informed”. Subsequently, it was revealed that the person liaising with Mr de Ruyter was Brig Burger of the South African Police Services (SAPS), who has recently retired. Brig Burger failed to attend a meeting which he was invited to on 7 June 2023, without any apology or reasons for his absence. Adv Jenkins highlighted that the National Commissioner of SAPS, General Fanie Masemola, informed SCOPA that Brig Burger had concerns about appearing publicly, including safety concerns.

In the letter addressed to the Speaker on 19 June 2023, Brig Burger explained that his non-attendance was due to Eskom being a National Key Point and SCOPA not having the mandate to deal with national security matters. Brig Burger also questioned whether the allegations should not be dealt with more appropriately in a closed meeting by the Joint Standing Committee on Intelligence.

Adv Jenkins highlighted to the Committee Members that the legal services team looked at the mandate of SCOPA and the general power to figure out whether it has the authority to summon individuals to appear before the Committee.

In terms of section 56(a) of the Constitution, read together with the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004 (‘Powers Act’), the National Assembly, and any of its Committees, may summon any person to appear before it or to produce documents. This power is an information-gathering tool to facilitate and strengthen the execution of the mandate of Parliament, including oversight over the executive and organs of state, even in cases where individuals or entities are otherwise reluctant to appear before Parliament.

The Legal Advisors looked at the specific reasons Brig Burger gave to not appear. The first reason was that Eskom is a national key point and he cannot disclose information about Eskom. Adv Jenkins stated that through their research, they found that Eskom as an entity was not a National Key Point for the National Key Point Act, however, certain power stations under its control have separately been declared as such. (More details available in attached legal opinion.)

Adv Jenkins outlined the Protection of Information Act, 1982 (Act 84 of 1982). He stated that The Protection of Information Act is an Apartheid-era Act that remains on the statute books. Section four prohibits and makes it a criminal offence for any person to disclose information relating to the ‘defence of the Republic’ and information regarding a ‘security matter’ which is defined as including matters dealt with by the Intelligence Services or relating to its functions. He also highlighted the Promotion of Access to Information Act, 2000 (ACT No. 2 of  2000). He highlighted that to understand the reasons behind Brig Burger’s non-appearance before SCOPA, it is important to understand what National Security entails. He further indicated that Section 46 of PAIA contains a public interest override. It provides that records must be disclosed if the disclosure would reveal evidence of a substantial contravention of, or failure to comply with, the law; or an imminent and serious public safety or environmental risk and the public interest in the disclosure of the record outweighs the harm contemplated in the provision in question. He took the Committee through the definitions of the National Strategic Intelligence Act (Act 39 of 1994).

Adv Jenkins stated that the legal services have an idea of the information required by the Portfolio Committee; what is unknown is whether the information is classified, although Brig Burger has indicated that it falls outside the parameters of transparency.

He outlined the South African Police Service Act, of 1995 (Act 68 of 1995) and noted the importance of Section 70 concerning the discussion at hand.

Adv Jenkins stated that two aspects require consideration in the discussion related to the Brig Burger matter; the first question highlighted in the discussion is whether SCOPA is legally mandated to question or receive information relating to the Eskom allegations. An organ of the state or an official of the state cannot perform any function which that person is not allowed to perform in terms of the law; for SCOPA  to ask any of the relevant questions, it must be allowed in law to do so.

The second question is whether SCOPA may summon Brig Burger to appear before it. Adv Jenkins further highlighted some of the mandates of SCOPA and indicated that there is no Committee in Parliament which has an exclusive relationship with Government Departments. As functions of Government overlap and therefore different Committees can have an interest in said Department.

He stated that it is not clear why Brig Burger said it is more appropriate to go to the Portfolio Committee on Public Enterprises; or Police with this information, when all the Committees are open to the public and information must be discussed transparently. The same mandate that provides the Portfolio Committee on Public Enterprises; or Police with the systems to disclose the information from Brig Burger, SCOPA also has the same systems.

He also indicated that given that the SCOPA is responsible for the oversight of the financial expenditure of public funds through engaging with and interrogating the financial statements, audit and other expenditure reports of organs of state, including Eskom, it may further investigate and consider any such matter related to the same.

Brig Burger did not provide any information on whether the records at his disposal have indeed been classified for purposes of the MISS Policy as sensitive information which must be protected, in which case he may validly refuse to share such information with the SCOPA. However, it is noted that SCOPA may follow other processes requesting declassification. This is especially so as the Minimum Information Security Standards (MISS) Policy itself states that the system of classification should not be used to hide corruption, maladministration, and criminal offences. Thus, SCOPA could request information on which documents have been classified and why.

SCOPA is legally mandated to summon any person to appear before it, provided that the questions put to the person, or the information sought from the person is in pursuit of its oversight mandate. The fact that Brig Burger is now retired and therefore discharged from the SAPS does not impede him from being asked to provide oral evidence and to submit records in pursuit of SCOPA’s oversight enquiry.

See attached for full legal opinion

Discussion

The Chairperson thanked Adv Jenkins for an extensive presentation. He indicated that the Committee has invited Brig Burger twice to appear before it.

Mr A Lees (DA) commended Adv Jenkins for a clear presentation. He stated that it is clear that SCOPA should move forward with interviewing Brig Burger. The methodology to get the Brigadier to appear before SCOPA is either through a third-party invitation together with the legal opinion outlined in the presentation. Mr Lees stated that it would not be correct to subject the Committee to prepare questions in advance for Brig Burger, given that other witnesses and interviewees are not extended the same courtesy, who may also be asked questions that have impacts on the Special Investigations Unit (SIU)/ security matter. The process can be handled during the meeting.

He said that a third invitation should be extended to Brig Burger together with the legal opinion explaining why SCOPA believes that he should appear before it, and give him seven days to respond. Thereafter, depending on the response, schedule a meeting or proceed with the summons.

Ms B Van Minnen (DA) echoed the sentiments shared by her colleague Mr Lees. She said that SCOPA has been patient with Brig Burger and it is at the point where it does need to proceed in terms of the legal opinion. She suggested that there should not be more than seven days between the initial letter and the follow-up of the summons. The Committee has dealt with several role players regarding the Eskom matter and needs to finish before the end of the term.

She agreed with the issue of questioning and highlighted that the Committee has dealt with sensitive issues before and is aware of what information should be considered in these meetings, and what would need to be asked towards the Brigadier. The Committee needs to get the opinion of Brig Burger. She stated that the Committee needs to go back at some point to why the Police Commissioner sought to provide inaccurate information as to the first incident when Brig Burger did not appear, and his apparent inability to find where Brig Burger was.

Mr B Hadebe (ANC) stated that when the Committee was engaging with the National Commissioner, it was brought to their attention that some of the questions of the National Commissioner should be referred to Brig Burger, because he was responsible for dealing with Eskom-related allegations. The Committee was not interested in dealing with classified information, and it should not be made available.

He said that judging from the legal opinion outlined by Adv Jenkins, the Committee has been able to establish the capacity for SCOPA to subpoena Brig Burger to appear before the Committee. It is clear on the way forward and what needs to be done to deal with the matter. He stated that the Committee is only interested in the allegations made by Mr de Ruyter about the misappropriation of taxpayer's funds. The Committee needs to get an understanding from the Brigadier on the action taken and if there were no actions taken, he should provide the reasons for the non-action.

He agreed with his colleagues that the Brigadier should be given one last chance, the Committee should forward him a letter with the legal opinion, and he should be given seven days. If he refuses the process, the subpoena should be applied so the Committee can fulfil its constitutional mandate and protect public funds.

Mr S Somyo (ANC) stated that the legal opinion is very clear and it does not alter the original position of the Committee, which is to invite Brig Burger to appear before it. He agreed with his colleagues that the Brigadier should be invited once again to appear before the Committee.

He said that the apology from Brig Burger which seeks to clarify his absence on the day he was expected to appear before the Committee, was further disputed through his correspondence to the Speaker, wherein the Committee was also copied in. Therefore, the reasoning that states that he did not appear before the Committee because he was feeling unsafe is not valid.

Ms V Mente (EFF) stated that the Committee is faced with a situation of an individual who has made up his mind. She said that the Brigadier has not only undermined the authority of SCOPA but he has also undermined the authority of Parliament.

She indicated that, as outlined by the legal advisor, whether it was the Portfolio Committee or SCOPA that he was called to appear before was irrelevant, because the Brigadier has to explain and account for what he knows regarding the Eskom matter. She said that it is unacceptable for the Brigadier to send the Committee from pillar to post, and it is out of order to question the authority SCOPA holds in this regard.

SCOPA therefore has no obligation to send Brig Burger a legal opinion which he has already disputed and made up his mind that he will not be appearing before the Committee. She stated that the gimmicks displayed by the Brigadier were a way of derailing the process and the mandates thereof. She stated that the Committee cannot nurse the feelings of an individual who continues to question its authority and has demonstrated that he does not acknowledge the powers of Parliament and has no interest in accounting before Parliament.

She proposed that the Committee should summon Brig Burger to appear and account.

Mr Hadebe said that it would be important to indicate to Brig Burger that when he was invited the first time to appear before SCOPA, the National Commissioner gave him an instruction to attend a meeting. The National Commissioner did not raise any of the issues raised by Brig Burger, therefore the Committee is aware that even the National Commissioner does not hold the views expressed by Brig Burger by allowing him to attend the meeting.

The Chairperson stated that in both instances wherein correspondence was sent through to Brig Burger, there has not been any response directed to the Committee. All his correspondences have been directed to the Speaker.

The Chairperson said that while he is cognisant of the suggestions from the Members to write to Brig Burger one last time, he is also inclined to agree with the proposal from Ms Mente to issue a subpoena on the matter considering the tight schedule of the Committee.

The prevailing consensus from the Committee Members is to invite Brig Burger to the Committee one last time and give him seven days to respond. The Chairperson asked the Committee Members to resolve on the subpoena so that if the Brigadier does not avail himself, the Committee should proceed with the subpoena process.

Adv Jenkins stated that while he is not aware of Brig Burger’s schedule, seven working days would be sufficient to respond and indicate his availability. He said that the invite should indicate that if he does not respond within seven working days, the Committee would consider it appropriate to proceed with summoning him.

Mr Lees agreed with the sentiments echoed by Adv Jenkins.

The tentative date for the invite to a meeting was set for 25 October 2023. The response from Brig Burger was expected on 20 October 2023.

The meeting was adjourned.