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ETHICS AND MEMBERS' INTERESTS JOINT COMMITTEE
8 May 2001
YENGENI ETHICS INQUIRY
- Report No 1 to the Joint Committee on Ethics and Members' Interests with regard to the complaint against Mr T Yengeni (ANC) [Ed. Note: annexures not included] (see Appendix 1)
- Response by Mr T Yengeni (see Appendix 2)
The Committee met to deliberate on the issue of non-disclosure by ANC Chief Whip, Mr Yengeni, of a 4x4 vehicle and of a property situated in Tijgerhof, Cape Town. The Committee had to firstly decide whether the Report distributed to them by the Registrar of Members Interests touched on information regarded as confidential. If the information was confidential, then under the rules of disclosure of MPs assets, this meeting could not be open to the public and press. According to the Chairperson, this was done to safeguard any violation of confidentiality that may arise from public perusal of the document and to ensure that Parliamentary rules were not breached. The meeting was closed to establish this.
The Committee consequently declared that the meeting should be open to the public. The Committee commented on the Report but concluded that they needed more time to assess the Report, the meeting was adjourned to the following day.
The Chairperson, Ms Ncube (ANC), stated that the purpose of the meeting was to receive a Report from the Registrar of Members Interests, Ms Fezela Mahomed, on Mr Yengeni's response to the allegations against him.
The Chairperson asked that they take into account Mr Yengeni's right to privacy. She submitted that the meeting should be held behind closed doors to consider the Registrar's Report. This was done in accordance with S72 of the Code Of Ethics and S27(2) of the Joint Rules. She stressed that both the members and herself had not read the Report, therefore the closed door policy should be adopted to safeguard against violations of confidentiality emanating from the Report, and to ensure that the rules of Parliament were not breached.
She stated that only the Members of Parliament sworn in as members of that Committee may read the document to decide whether the meeting can be open or closed to the public and the press. She suggested that the meeting be adjourned to 15h00 so that members may then decide whether or not information contained in the Report contravenes the requirements of confidentiality.
The Deputy Chairperson, Mr Mushwana (ANC), agreed with the Chairperson's caution in light of the fact that the chairpersons were not aware of the nature of the Report and because information from the Registrar's office had leaked out to the press.
Mr D Gibson (DP) differed completely with this view. He stated that the Chair speaks of the right to privacy of a member but what the Committee should be talking about is the alleged failure of disclosure of a member thus the interests of Parliament and of the public should be paramount. He questioned why the document had not been previously circulated. He wanted clarity as to how many members were sworn in and whether he would constitute such a member since he was sworn in as a member many years ago. He submitted that the chair was making a mistake as this matter was in the public domain and of much interest to the public and Parliament. He thought that the matter should be discussed openly to show no fear or favour.
Mr Gibson was supported by one other committee member who affirmed that the matter was of public interest.
Pursuant to the above, other members agreed to meet at 15h00 whilst others stated that they had other obligations and would therefore be denied the opportunity of attending that meeting. Ms P. De Lille (PAC) suggested that sworn-in committee members should decide within half an hour whether or not the public may be present. This suggestion was seconded.
Mr Gibson wanted clarity about which MPs were sworn-in members and discovered that he was not a listed member.
At this stage, members of the press and public were asked to leave the caucus room. Approximately half an hour later they were allowed to re-enter the meeting.
The Chairperson submitted that nothing in the Report warranted confidentiality and asked whether members needed clarity.
Ms P De Lille asked for clarity on what constituted "normal business practice" in the Report, also the Registrar had recommended that the special investigation task team should be appointed to report on the matter. Ms De Lille said that Parliament as an independent body should carry out their own investigation. She stated that although the Registrar suggested that Mr Gibson, the Sunday Times and Daimler Chrysler should give feedback on information contained in the Sunday Times, she believed that Mr Yengeni should provide information to the Committee confirming the submissions as per the Sunday Times newspaper and it was not the duty of the other persons.
Mr I Moocroft (DP) wanted clarity as to whether the two properties disclosed in 1996 under Item 3. 3 of the Report's appendix, included Erf 18250 [Tijgerhof].
The Deputy Chairperson stated that the Report was merely the Registrar's own recommendations and the Committee may or may not accept same.
The Registrar of Members Interests was asked to bring clarity to the members queries.
The Registrar, Ms F Mahommed, explained that from her understanding of the meaning of normal business practice, where one undertakes immediate payment for goods purchased, Mr Yengeni deviated from this in that he took possession of the vehicle in the month of October 1998 and payment began in the month of May 1999.
The Registrar suggested that the component of the investigation into Mr Yengeni that dealt with the issue of the arms deal should be handed over to the special investigating task team. She submitted that her office consists of herself and one other and may not be able to handle such an investigation. She left the decision to the Committee.
The Registrar suggested that Mr Gibson should provide the Committee with any further information in his possession although she inferred that from his letter to the Committee, most of his information came from the Sunday Times. However he may have other information and as a matter of courtesy and correct procedure, he should disclose further information.
In response to Mr Moocroft's query regarding the properties, she said that Mr Yengeni only disclosed two properties. In terms of the way in which the code is applied, the Committee depends on the good faith of the member. Mr Yengeni disclosed two houses and there was no disclosure of a third house.
Mr Gibson confirmed that he did not have further documentation and that he had relied on the Sunday Times press report.
A member of the committee asked that Daimler Chrysler should be asked to set out for the committee what their normal business practice was. Another member referred to Item 3. 4(e) of the Report where it stated that Mr Yengeni did not respond with sufficient detail. He asked for clarity as to whether Mr Yengeni was asked to respond in detail.
The Deputy Chairperson once again reiterated that the Report was merely the Registrar's personal opinion.
Mr J Cronin (ANC) complimented the Registrar on the report, and proposed that the Committee accept the Registrar's suggestion under Item 4. 1. of the Report, that a property that was disclosed in 1996 but was subsequently not disclosed be deemed an omission rather than a deliberate attempt to mislead the Committee. He suggested further that Mr Yengeni must now make a disclosure as to which property he referred to so as to obtain clarity. He agreed that in light of Mr Yengeni's disclosure being insufficient [as per Item 3. 4(e)], further investigation must now be carried out so as to not rely on information from the press. He suggested that Mr Yengeni's cooperation must be sought. If the Committee faces difficulty and there is no cooperation, then the Committee must pursue other angles.
Mr Cronin approached the question as to how greater clarity may be sought. He suggested that the Registrar approach the Special Investigation Unit that is looking closely at the acquisition of the motor vehicle by Mr Yengeni. He suggested that if the Registrar were to work alone, given the resources available to her, she may hamper the investigations carried out by the Special Investigation Unit. He suggested that the Registrar push the Special Investigation Unit to work quickly as it is the ANC's intention that this matter be finalised. Mr Cronin agreed with Ms De Lille that this Committee is a sovereign committee of Parliament and did not necessarily have to agree with findings of the Special Investigation Unit and that they would accordingly have a right to express disagreement with that unit.
He stated that the Committee was not answerable to those units. He submitted that the above was the speediest way to move forward.
Mr Gibson said that he was extremely dissatisfied with the lack of disclosure from Mr Yengeni. He suggested that all Mr Yengeni needed to have done was make a simple statement to the Committee about how he acquired the vehicle in question, how much he paid for it and to produce proof that he is paying for the vehicle. Instead he chose not to co-operate, from the correspondence to the Committee he has chosen to mess with the Committee. Mr Gibson's opinion was that Mr Yengeni is defiant, evasive and disingenuous. He commented that Mr Yengeni's submission that he did not know that he had to disclose a property more than once was not true since he had disclosed his Guguletu property more than once. He believed that his statement to Parliament that "he did not know" was unacceptable. Mr Yengeni should explain this and apologise. If not, the Committee was setting a precedent where if other Members failed to declare, they will merely claim that they were not aware that they had to declare. He suggested that Mr Yengeni acted defiantly to the letter where he was asked for an explanation and Yengeni came through with the view that if you allege, you must prove. He stated that Mr Yengeni is being allowed to get away with this contravention because of who he is and the Committee should not allow this.
The Deputy Chairperson took offence with the comment that Mr Yengeni's action was being allowed. He pointed that the ANC had called the meeting and he wanted clarity as to whom Mr Gibson thought was allowing Mr Yengeni to 'get away'.
Mr Gibson stated that he believed that Mr Yengeni was in contempt and therefore in contempt of Parliament. He believed that Mr Yengeni must come before the Committee with all his documents, explain himself and then the Committee should decide on the facts. Anything short of that would be a travesty of justice.
Ms De Lille believed that Parliament had not exhausted its powers and before other agencies become involved, S 2. 7 for the procedures for the investigation of complaints should be adhered to. She suggested that Mr Yengeni be given ten days to appear before the Committee so that his side of the story is heard. She believed that they would be setting a legal precedent and the capacity of the ethics Committee would be established. She commented that other units should not investigate, rather the Office of the Registrar should be strengthened so that when other such matters come before the Committee, the Committee would be able to handle the cases. She believed that Mr Yengeni should be given a chance to appear before the Committee.
A member of the ANC asserted that in future, proper procedure should be followed since Mr Yengeni is now questioning the Committee as to the procedure followed rather than making comment on the undisclosed seven month period. He stressed that the procedure of the Committee must be clarified.
Mr C Aucamp (AEB) stated that the three charges levelled against Mr Yengeni were now narrowed down to the seven month period of non-disclosure, and if the Committee was going to be strict then various Members could be guilty of this.
The Chairperson then stated the value of adjourning and taking time to evaluate the Report since the Committee was not taking themselves forward.
Mr Cronin asked that the committee pause and wait for further facts from Mr Yengeni, since they were at that stage only relying on information from newspapers. He supported the need for an adjournment.
A member of the opposition disagreed saying that they should not merely adjourn, although the issue of procedure is . He suggested that the Committee should follow the procedure as laid out by the Registrar under Item 3. 5(c) of the Report.
The Deputy Chairperson submitted that the Report does not lay down procedure, the Committee must establish procedure, and for this, more time was needed.
Mr Gibson suggested in a tone of irritation that since both the Chairperson and Deputy Chairperson wanted an adjournment, they should adjourn.
A member of the opposition also tabled an adjournment in order to look at the document, as did other members namely Mr Aucamp. He stated that the contents of the Report did have a reflection on procedure and he would prefer to read the document in order to determine procedure.
The meeting was then adjourned to 9 May 2001 at 17h00 in venue E249.
PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA
Report No1 to the Joint Committee on Ethics and Members' Interests with regard to the complaint against Mr T. Yengeni.
1.1 On the basis of a report in the "Sunday Times" 25 March 2001, Mr D. Gibson lodged a complaint to the Chairperson of the Joint Committee on Ethics and Members' Interests in respect of Mr Yengeni's alleged non-disclosure. See annex 1.
1.2 At its meeting of the 28 March 2001, the Committee instructed the Registrar to request a response from Mr Yengeni to Mr Gibson's letter of complaint.
See annex 2.
2. Communication between Mr Yengeni and the Office of the Registrar of Members' Interests with regard to the complaint.
2.1 The Registrar as instructed by the Committee, sent a letter to Mr Yengeni on the
30 March 2001.
2.2 Mr Yengeni responded on 06 April 2001. In his response to the Registrar, Mr Yengeni questioned whether the relevant rules and procedures were applied.
See annex 3.
2.3 In consultation with the Chairperson and on the basis of legal opinion obtained from the Chief Parliamentary Law Adviser, a second letter dated the 10 April 2001 was sent to Mr Yengeni informing him that the letter sent on 30 March 2001 was sent on the instruction of the Committee and that he is required to respond. See annex 4.
2.4 On 10 April 2001 the Registrar received a letter from Mr Yengeni's Personal Assistant indicating that Mr Yengeni would only be in a position to respond after the 2 May as Parliament was in recess. See annex 5.
2.5 The Registrar subsequently received a response from Mr Yengeni on 18 April 2001. Mr Yengeni responded to the questions on the allegation of non-disclosure of a benefit that he received in respect of his motor vehicle and secondly the non-disclosure of his home in Tigerhof. See annex 6.
2.6 Mr Yengeni indicated that he had disclosed his home in 1996 and that his understanding of the rules was that a once off disclosure was sufficient. With regard to the motor vehicle Mr Yengeni states that the motor vehicle was legitimately purchased and that its acquisition did not in any way amount to a gift or donation and therefore there was no need for disclosure.
3. Consideration of Mr. Yengeni's response to the complaint.
3.1 In terms of clause 2.4 of the Procedure for the Investigation of Complaints the Registrar must consider the member's response.
3.2 Mr. Gibson's complaint contained the following allegations:
That Mr Yengeni did not disclose erf 18250 Cape Town
With regard to motor vehicle CA 80233, that the licensing application indicates that Stannic was the financier and that Mr Yengeni appears to have received free use of a motor vehicle for a period of seven months and that the benefit was not disclosed
That the Committee should consider whether it is appropriate for the Chairperson of the Defence Committee to enter into an agreement with a company that either itself or whose affiliates are or were involved in tendering for arms or sub-contracts
3.3 Allegation regarding the non-disclosure of Erf 18250 Cape Town.
(a) I have perused Mr Yengeni's record and can confirm that he had disclosed two properties in 1996. In the 1997 and 1998 disclosure he only disclosed the Guguletu property, in 1999 and 2000 he stated that his disclosure remained unchanged. See annex 7.
(b) In my consideration of the matter, I have also taken into account that prior to the publication of the 2000 Register of Members' Interests, each member was sent a copy of his or her disclosure and asked to correct errors and omissions and to inform the Office of the Registrar in this regard. Mr Yengeni did not submit any changes in this regard.
(c) Since the property was disclosed in 1996, it may be assumed that the non-disclosure was not meant to mislead the Committee, but could instead be construed as an omission.
3.4 Acquisition of motor vehicle CA 80233.
(a) Mr Yengeni's response to the Registrar on 18 April 2001 was that the motor vehicle had been legitimately purchased by him and in no way constituted a gift or donation. Mr Yengeni states in his response that, "anyone disputing this (that motor vehicle was legally acquired) must substantiate his or her allegations".
(b) The Registrar must consider whether Mr Yengeni's response with regard to the motor vehicle is sufficient to conclude that there is not substance to the complaint.
(c) The complaint is based on an article in the "Sunday Times" 25 March 2001 which contained details of the acquisition of the motor vehicle. The information in the article cannot be dismissed as on the face of it, it suggests that the acquisition of the motor vehicle was not a normal business transaction.
(i) The newspaper report made the following allegations
Â· The motor vehicle was ordered as a private staff vehicle for Daimler Chrysler.
Â· It was licensed in Cape Town on the 22 October 1998 in Mr Yengeni's name.
Â· The motor vehicle was registered with Stannic as the title-holder.
Â· That Mr Yengeni entered into a financial agreement Daimler Chrysler Financial services on 28 May 1999.
Â· The article cited traffic fines and service records, to prove that the vehicle was used by Mr. Yengeni prior to the first payment
(d) The Sunday Times claims that it has the following documents
Â· Computer printouts from Daimler Chrysler that the car was ordered as a staff car,
Â· The motor vehicle registration papers and
Â· Information from Hire Purchase Information revealing that a hire purchase agreement exists between Mr Yengeni and Daimler Chrysler Financial Service and that this was signed on the 28 May 1999.
(e) On the basis of the information contained Mr. Yengeni's response cannot be construed as sufficient to determine the facts. Mr Yengeni's response does not refute the detail contained in the article nor does he explain the circumstances related to the acquisition or funding of the motor vehicle.
3.5 With regard to the propriety of the Chairperson of a parliamentary committee concluding a contractual arrangement with a company that either or whose affiliates are or who were involved in tendering for government business.
(a) With respect to the above, it must first be established whether a benefit was in fact received and to establish to what extent the financing of the vehicle was outside the normal business practice of the financing company.
(b) The Code of Conduct does not preclude members from entering into any financial arrangement with any institution. The Code of Conduct requires in terms of par 12 (a) that members must declare any personal or private financial or business interest that the member or any spouse, permanent companion or business partner of that member may have in a matter that is before a joint committee, committee or other parliamentary forum of which that member is a member;
(c) At this stage there seems to be no information provided that the Defence Committee considered any contracts.
4. Recommendations to the Committee in respect of the complaint submitted by Mr Gibson.
4.1 Because the fact are not in dispute with regard to the property at Tigerhof, the Registrar recommends that Mr. Yengeni rectifies the omission and submits details of the property concerned to the Office of the Registrar and that no further action be taken with regard to the property.
4.2 In respect of the motor vehicle, consideration must be given to the information contained in the Sunday Times report. The allegations cannot be dismissed as unfounded, as on the face of it, it appears that there may be some substance to the report. I recommend that the Committee authorise an investigation to determine the facts.
4.3 Unless other information is received, the investigation with regard to any alleged impropriety in respect of arms deal or any sub contract should be left to the Special Investigators who are currently conducting an intensive investigation in the matter. I recommend that when the Special Investigation Unit tables its report to Parliament, the committee should consider the findings and determine whether Mr Yengeni infringed the Code of Conduct.
5. Proposed procedure for the investigation of the complaint against Mr. Yengeni.
5.1 In terms of the Procedure for the Investigation of Complaints, the Registrar must table a summary of the preliminary investigation and propose a procedure for the further investigation of the complaint.
5.2 I have not conducted a preliminary investigation, as the Procedure for the Investigation of Complaints (par 2.4) is ambiguous. I have obtained an opinion from the Parliamentary Law Advisers who agree that the clause is ambiguous. See annex 8.
5.3 As this is the first complaint of this nature, I am of the view that is prudent to ask the committee to authorise the preliminary investigation.
5.4 Procedure for Further Investigation
(a) The purpose of the investigation is to determine whether the details contained in the Sunday Times is accurate or correct. Secondly to obtain additional information to enable the Committee to determine what the facts are in this matter.
(b) As there is significant public interest in this matter, it is important that the investigation proceeds immediately and the final report be presented to the National Assembly as soon as possible
(c) It is suggested that the Registrar be given two weeks to obtain the required information.
(i) The Registrar should ask Mr. Gibson for any documentation that he may have in his possession.
(ii) The Registrar should request from "Sunday Times" newspaper copies of all the documents relating to Mr Yengeni.
(iii) Daimler Chrysler Financial Services should be asked to explain the details of the sale of the vehicle, and indicate to what extent this transaction deviated from their usual business practice. They should also be asked to furnish all the information and documents relating to Mr Yengeni.
(iv) Mr Yengeni should be urged to provide a full explanation to the Committee on the acquisition of the vehicle and to submit any documents in this regard.
(v) The Committee has the option of appointing forensic auditors to ascertain the facts.
(vi) Should Sunday Times refuse to hand over the documents the Committee has two options, it may compel the Sunday Times to provide the information in terms of Joint Rule 32 (1)(a) or alternatively, attempt to obtain the documentation at its source. I suggest that should the Sunday Times refuse to assist that we obtain the documents from the source, Daimler Chrysler Financial Services and the Cape Town Traffic Department.
(vii) Should Daimler Chrysler Financial Services refuse to respond, they must be compelled to do so in terms of Joint Rule 32(1)(a)
(viii) The Committee cannot compel Mr Yengeni to respond, but it is suggested that the Chairperson appoint a team from the Committee to meet with Mr Yengeni to ask him to respond. Should he refuse to cooperate then a hearing may be held to determine the facts.
5.5 Assessment on the need for a hearing
(a) On the basis of the information obtained the Committee is required to assess whether there is a need for a hearing.
(b) In terms of 2.7 of the Procedure for the Investigation of Complaints, in event of a hearing a member must be given a minimum of 10 days notice. In terms of 3.1 of the Procedure a hearing can be held if the facts are in dispute or 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.
6.1 The Committee in terms of rule 124(a) of the Joint Rules is required to implement the Code of Conduct. The Committee cannot extend the scope of the investigation beyond the Code of Conduct.
6.2 I propose that the Committee establish guidelines to the Registrar and members of the Committee in respect of the media's access to information during the investigation process. The Committee needs to consider weigh the publics right to information in the one instance versus the members' rights.
6.3 I further propose that at the end of this investigation the Procedure for the Investigation of Complaints be reviewed to ensure that interpretation is unambiguous.
Registrar of Members' Interests
PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA
FROM: CHIEF WHIP OF THE MAJORITY PARTY
TO: MS FAZELA MAHOMED
REGISTRAR OF MEMBERS' INTEREST
PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA
P.O. BOX 15
6 April 2001
Dear Ms Mahomed
RE: 'COMPLAINT' BY MR DOUGLAS GIBSON MP
1. I acknowledge receipt of your letter dated 30 March 2001.
2. I have also noted the contents of the two letters, Gibson dated 26 March 2001 and 27 March 2001.
3. I am of the firm view that the rules and procedures governing the lodging of complaints and follow up process have been flouted. That is of course sufficient to vitiate the entire process. I make this assertion because of, inter alia, the following; -
3.1. Firstly, in terms of Rule 17 of the Code of Conduct any person lodging a complaint for investigation by the Committee must do so through the office of the Registrar. The letters from Mr Gibson are all addressed to the Chairperson of the Committee and accordingly defective. To worsen matters, the Chairperson of the Committee responded directly to him not through the
office of Registrar of Members' Interest. Clearly this is a complete floutation of the rules which she purports to enforce.
3.2. As if that was not enough, the contents of the Chairperson's response failed to require Mr Gibson to lodge a complaint or simply dismiss his letter on the ground that no complaint was lodged. I re-iterate that the correct procedure should have been processing this matter through the office of the Registrar.
3.3. Secondly, to set the process in motion there has to be a specific complaint lodged that alleges a breach of the Code of Conduct and your office can then act on the basis thereof. If there is none then there should be no movement.
3.4. No such complaint has even been alleged in Mr. Gibson's letters, infact, no complaint of any kind has come up. The letters merely invite me to explain certain issues mentioned therein.
3.5. It is therefore not in accordance with the procedures to act on Mr. Gibson's letters when that jurisdictional fact has not been established.
3.6. It is clear from your letter that the complaint route as envisaged in Rule 17(1) of the Code of Conduct has been chosen and therefore no reliance can be sought on any other route.
3.7. If the complaint route is not followed the alternative is for the Committee to act on its own which, I repeat this does not apply. Even that route would apply in terms of clause 17(1) when there has been an alleged breach of the Code of Conduct. There is no such suggestion that has come up either from Mr. Gibson's letters or from the Committee.
3.8. The reference to Section 4 of the Procedure for the Investigation of Complaints, which have been approved by the Committee on 17 October 1997, in Mr Gibson's letter of 27 March 2001 was just a desperate attempt to bring the process in line with the rules. In your letter you have not sought to invoke these provisions. I think for good reasons because the 'allegations made in public' are not just allegations in the air, but have to impact on the breach of the Code of Conduct. There is no such allegation made.
3.9. I am mentioning all these factors to make it clear that I am not legally obliged to furnish any information that is sought purely on a witch hunt basis. There has to be a case made pertaining to the breach of the Code of Conduct before I have a duty to respond. As an office tasked with the duty of enforcing non-compliance with the Code of Conduct I would expect that you will abide by the rules.
4. Consequently, I am not in a position to respond until such time that the breach of the rules by your office has been rectified.
5. I wish to point out that as a member of the National Assembly, the ANC which is the majority party and Chief Whip thereof I am willing to subject myself to the rules of Parliament correctly applied.
TONY YENGENI, MP
CHIEF WHIP OF MAJORITY PARTY
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