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ETHICS AND MEMBERS' INTERESTS JOINT COMMITTEE
28 March 2001
YENGENI ETHICS INQUIRY
Code of Conduct for Members of Parliament
March 27, 2001 letter from D. Gibson (DA) to Chairperson Ncube (See Appendix 1)
Memo: Procedure for Investigation of Complaints (See Appendix 2)
The Chairperson, Ms Ncube (ANC) opened the meeting by stating that its purpose was to determine whether there is cause to open a parliamentary investigation of allegations concerning MP Yengeni (ANC).
Mr Gibson (DP) then asked for procedural clarification as to whether a preliminary investigation by the Registrar, pursuant to Section 4 of the Code of Conduct, had already been initiated based on his written inquiries to the Chair and press reports. The Chair eventually clarified that no such investigation had commenced, but that, as noted by Mr Cronin (ANC), the purpose of the meeting was to determine a process by which to initiate an investigation.
Ms Seaton (IFP) then raised the question as to whether committee members had been sworn to confidentiality. Further should not inquiries into the Yengeni matter be considered in private, given the presumption of a member's innocence until proven guilty.
In response it was noted that confirmation of members' confidentiality oaths would occur, but the committee consensus accorded with Mr Cronin's comments that the ANC wished to deal with these serious allegations as a public matter unless privacy, per the applicable Rules, was absolutely essential.
The Chair then called on the parliamentary legal advisor to summarize applicable procedures.
He noted that the committee's powers are prescribed by Rule 124 of the Joint Rules of Parliament, to which the Code of Conduct for Members of Parliament ("the Code") is an annexure. He then noted that Section 16 of the Code describes what constitutes a breach of its provisions, e.g., failure to make disclosures as required by Code Section 12. He also cited Code Section 17's prescription of procedures for investigation of alleged breaches, observing that the committee is given some latitude to determine its own procedures.
Moving to the issues at hand, the Chair commented that Gibson's March 27, 2001 letter frames the issues for committee consideration concerning Yengeni, which Mr Cronin (ANC) summarized as having 2 components: concerning the Mercedes vehicle, and concerning a property in Guguletu. Cronin suggested that the Registrar be instructed to direct a letter to Yengeni asking for an explanation of these apparent breaches of the Code, which he would then have seven days to respond to.
Mr Gibson noted that his correspondence to the Chair, and the initial Sunday Times news report on the Mercedes, should be included in the materials directed to Yengeni for explanation. The Chair confirmed that these are relevant, agreeing with Mr Cronin that although the committee's scope of inquiry is limited to consideration of whether violation of ethical disclosure requirements had occurred, full examination of all pertinent matters is appropriate.
As Mr Momberg (DP) observed, the timing of this procedure will preclude the committee from making a final report by April 6, as requested by the Speaker of Parliament, or prior to the Easter recess. The Chair also acknowledged that it may be necessary for the committee to meet on this matter over the recess.
The meeting was then adjourned.
Letter dated 27 March 2001
To: Sr B Ncube (Chairperson: Committee on Ethics and Members' Interests)
From: Douglas Gibson (Chief Whip; Democratic Party)
RE: DISCLOSURES BY MR TONY YENGENI MP
1. I acknowledge receipt of your letter dated 27 March 2001, the contents of which I noted with some surprise.
2. The numbered paragraphs of my letter dated 26 March set out, in my view, the position with sufficient particularity to enable both Mr Yengeni and your committee to respond to and consider the matter.
3. To assist you, however, I state that:
3.1 Mr Yengeni needs to explain the circumstances surrounding the acquisition by him of the Mercedes Benz 320 4x4 on 22 October 1998 from a director or employee of DaimlerChrysler Aerospace or any company associated with it, and the alleged fact that a financing agreement was only concluded some 7 months later.
3.2 On the face of it, and at the very least, Mr Yengeni appears to have had the free use of an expensive motor vehide for a lengthy period without that benefit being disclosed. Members are required to declare all benefits in excess of R350 received by them and the use of a vehicle, reportedly worth in excess of R350 000, would, in my submission, require disclosure.
3.3 You request from me, a dopy of the "contractual agreement". I did not refer to a "contractual agreement)' but a "contractual arrangement". You must be aware of the fact that I do not have A copy of this agreement. Mr Yengeni should have a copy since the agreement is alleged in the Sunday Times of 25 March 2001 to have been the financing agreement for the purchase of the vehicle.
3.4 For some reason you appear to have overlooked the provisions of clause 4 of the annexure to your letter under reply. If you read clauses 4.1 to 4.4 you will observe that the registrar on her own, subject to your approval, may initiate a preliminary investigation to assess the validity of allegations made in public; the member named in
the press report must be informed immediately of the allegations and that a preliminary investigation is being conducted; that the committee will authorise a full investigation "should the situation warrant it" and that if a full investigation is carried out the procedure in paragraph 2 is to be followed.
3.5 The matter under discussion is one of an extremely serious nature. It does not involve a minor omission, failure or neglect. If proved it will amount to a major omission with serious consequences. Paragraph 2 of my letter points out that the whole question of the propriety of the Chairperson of a parliamentary committee concluding a contractual arrangement with a company that either itself or whose affiliates are or who were involved in tendering for government business with the department with which the MP is involved and this happens without any disclosure of benefit or possible conflict of interest, must be considered.
3.6 Pertisal of the declaration made by the honourable Mr Yengeni reveals certain shortcomings, in addition to any which may relate to the motor vehicle. In this regard I draw your attention to the fact that in his declaration for 1997 he discloses that he is an owner of a property in Guguletu purchased in 1991. In 1998 he again declares the ownership of the Guguletu property. For 1999 and the year 2000, Mr Yengeni states respectively 'no changes to disclosure for 1998" and "same as last time". There is an extraordinary omission in that at all material times Mr Yengeni was the registered owner of Erf 18250 Cape Town, which I have established is a residential property at 5 Fitzpatrick Road, Tijgerhof which is his private residence. The property was purchased for the sum of IC68 000 on 11 August 1994 and a mortgage bond for the sum of 1<286 000 was registered simultaneously with transfer. He appears not to be the registered owner of the Guguletu property.
3.7 Mr Yengeni needs to explain why he failed to declare the property, as he is required to in terms of the Code of Conduct. For your easy reference I enclose a photocopy of a deeds offide enquiry conducted on 27 March 2001. You have access to the declarations by' Mr Yengeni referred to above.
I note that your committee will meet at 11:00 on 28 March 2001. Members of that committee have not yet been given notice of that meeting I shall be attending the meeting and wi II be available to address you on any aspects of this letter and the previous one that might require clarification.
cc Mr T Yengeni MP
Procedure for the investigation of complaints
This procedure is based on, and is intended to be guided by, the principles of promptness, fairness and consistency.
2.1 Any person or body may submit a complaint to the Office of the Registrar concerning non-compliance with the provisions of the code by a member. A complaint must be in \\Titing and specif> the names of the member, the complainant and the nature of the complaint. It may include relevant evidence. Anonymous complaints will not ordinarily be considered. The Committee may, however, on its own accord investigate the facts arising out of an anonymous complaint where there appears to be prima facie evidence of non-compliance by a member.
2.2 The Registrar must within seven days of receiving a complaint inform the member concerned of the substance of the complaint.
2.3 The member must respond to the Registrar within seven days of being informed of the complaint.
2.4 The Registrar must consider the member's response or if the member does not respond _ or she may begin a preliminary investigation to determine the facts. The member must be notified in ~vriting within three days in this regard . The Registrar may decide to take no further action if he/she regards the complaint as frivolous, vexatious or unfounded. A decision of the Registrar in this regard must be confirmed by the Committee.
2.5 If urgency demands, the Registrar in consultation with the Chairpersons may call a special meeting of the committee. The Registrar must table a summary of the preliminary investigation and a proposed procedure for further investigation, including an assessment on the need for a hearing.
2.6 The Committee must agree to the procedure for further investigation.
2.7 In the event of a hearing being held, the member and the complainant must be given a minimum of 10 days' notice. At this stage any prospective witnesses must be notified.
3.1 Hearings must be held when the facts are in dispute. The Committee may decide to call a hearing if the investigation of the Registrar is inconclusive or if the Registrar is unable to make a recommendation or if the Committee decides that a hearing should be held.
3.2 The hearing will be on an inquisitorial basis and witnesses may be called.
3.3 In each case the committeand has the discretion regarding the weight to be attached to different forms of evidence and the extent of cross examination of witnesses.
3.4 The member must be notified of his/her right to be represented by another member, to call material witnesses and have an interpreter present.
3.5 The full committee may preside at the hearing. The Committee may appoint from its members a panel for the hearing provided that every political party is entitled to be present.
3.6 The Registrar presents the evidence on behalf of the Committee.
3.7 The Registrar may call witnesses.
3.8 The proceedings will be recorded.
3.9 The proceedings remain confidential until the Committee tables its report.
3.10 The Committee will decide in each circumstance on issues related to costs for witnesses and complainants.
3.11 The Committee must make a full and considered finding supported by reasons on the validity of any complaint at the conclusion of its investigations, which it must make public, together ;vith any sanction imposed, and must, if the hearing was in closed session, also supply an adequate summary of the facts. The findings of the Committee must be reported to the relevant House of Parliament within seven days of a hearing or, if the House is in recess, within seven days of the date on which it resumes business.
3.12 In conducting hearings, the Committee may adopt any procedures it deems reasonable, in justice and in fairness.
4. Reacting to Press Reports.
4.1 The Registrar on his/her own, subject to the approval of the Chairpersons, may initiate a preliminary investigation to assess the validity of allegations made in public.
4.2 The member named in the press report must be informed immediately of the allegations and that a preliminary investigation is being conducted.
4.3 Should the situation warrant it, the Committee will authorise a full investigation.
4.4 If a full investigation is carried out the procedure that follows is the same procedure as that which is detailed in section 2 above.
Approved by the Committee on the 14 October 1997.
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