Yengeni Ethics Inquiry

JOINT COMMITTEE ON ETHICS AND MEMBER'S INTEREST
09 May 2001
CONTINUATION OF DELIBERATIONS

Chairperson: Sr B Ncube

Documents handed out:
Registrar's Report

SUMMARY
The Committee was divided about whether Mr Yengeni should be brought before the Committee to testify or not. However, no vote was taken on this yet. Certain amendments were effected to the recommendations in the Registrar's Report.

MINUTES
Mr M Mushwana (Deputy Chair) stressed that the object of the meeting was to finalise deliberations on the Registrar's Report and to bring the matter to finality.

Discussion on inclusion of letter into the agenda
Mr D Gibson (DP) drew the Deputy Chair's attention to 19 April 2001 letter that he had written to Ms Ncube (the Chairperson), referring to certain additional allegations. He asked if he could read the letter at the meeting.

The Deputy Chair was hesitant to allow Mr Gibson to have the letter read to the committee and asked if the letter dealt with the issue at hand or whether it dealt with a different matter. Mr Gibson replied that the letter contained additional allegations to those that were contained in the press.

The Deputy Chair suggested that the letter be dealt with separately since it dealt with a different item that had nothing to do with the matter on the agenda.

Mr Gibson insisted that the letter related to Mr Yengeni, that it contained additional allegations, that it was written on 19 April 2001 and that consequently it should form part of the Registrar's Report.

The Deputy Chair asked for the committee members for their opinion on the matter and added that if the Registrar had not considered the letter and it is not part of the Report, he would find it difficult to accept it.

The Chair (Ms Ncube) said that she had not received the letter to which Mr Gibson was referring. Mr Gibson still insisted that the letter should be part of the agenda.

Mr M Ntuli (ANC) said that he had a problem with the addition of that letter to the agenda. He suggested that the committee should deal with the Report as the committee had adjourned without adding any items. If there was anything new to be discussed, it should be made part of the next meeting's agenda.

Mr Blanche (FA) said that the committee had the power to decide if the letter should be added to the agenda. Since the letter made allegations in connection with Mr Tony Yengeni, it should be included in the committee's current agenda.

The Deputy Chair asked for a way forward toward resolving the deadlock.

Mr Ntuli (ANC) recommended that the letter should not be considered at the current meeting because an agenda had already been established based on the Report submitted by the Registrar - lest there should be a multiplicity of issues. The letter did not constitute part of the agenda. He said that there was a process to be followed if anybody desired to lodge a complaint.

Ms P De Lille (PAC) wanted clarity if the committee was dealing with a mere omission of the letter into the Registrar's Report. She said that she understood Mr Gibson to say that the letter was written before the meeting of 8 May 2001 yet it was not included in the Report. She suggested that if the letter had been omitted it should be added to the rest of the Report. She asked if the letter was an extra item or a mere omission in the sense that it was not included in the Report.

Mr C Aucamp (AEB) said that Rule 17.1 provided that "the Committee acting on its own or on a complaint by any person may investigate". There must be a case. In this case, the committee acted on Mr Gibson's complaint. If there is a new matter, it would be "out of order" to add new complaints after the business has begun. It would have been in order if Mr Gibson's letter sought clarity on the allegations or complaint already stated. He recommended that the committee should restrict itself to the allegations already established.

The Deputy Chair stated that as the letter contained an additional allegation he would want to consider it separately from the Registrar's Report.

Mr Gibson replied that the letter pre-dated Ms Mahomed's Report. The letter raises the matter of Nose Week where Mr Yengeni was specifically quoted as referring to his banking accounts. Therefore it was utterly relevant to the issues at hand.

The Deputy Chairperson suggested that committee would have to vote on the matter, because the Chairperson had not received it, neither had it been responded to by the Registrar. No one had seen it. He invited Mr Gibson to table the letter in the appropriate manner.

Mr Surty (ANC) acknowledged that there was nothing inherently wrong with introducing a new item to the agenda. However, the nature of the meeting was to consider the recommendations of the Registrar. Mr Gibson was fully aware of this. If he wanted to introduce a new matter onto the agenda he should have done so by writing a letter to the Chairperson suggesting that the letter be added to the agenda and the reasons for doing so. The fact that he had decided to raise the letter at the current meeting, when he had had full knowledge that the meeting was going to take place was, with respect, opportunism. He concluded that the committee should confine itself to the issues to be addressed.

The Deputy Chair said that if Mr Gibson was not prepared to withdraw the letter and table the letter later, he would be compelled to put the matter to the vote. He asked if Mr Gibson was prepared to table the letter with the Registrar.

Mr Gibson was prepared to table it and the letter issue was resolved.

Discussion on Procedure
The Chair outlined the purpose of the meeting, which was to reconsider the Registrar's Report, for there had been no procedure nor process to be followed. The purpose of the meeting was thus to invite parties to indicate what process is to be followed to deal with the Registrar's Report to finality.

Mr Gibson wanted clarity regarding the Deputy Chair's reference to "parties". He said that when the committee was established, its founder chairperson, Prof. Kader Asmal, was very careful to say that the people who sat on the committee did not sit primarily as party representatives but as representatives of the whole of Parliament. Prof Asmal had said this in the House and had mentioned that when he would have to take instructions from a party, he would cease to be a member of this committee.

The Deputy Chair replied that he referred to parties not individuals.

Mr Aucamp suggested that the procedure would largely be determined by what was on the table. A person had made a complaint. The complaint was divided into three sections. Thus, the committees task was to handle the three allegations. That was to be the starting point.

Mr Gibson suggested that the committee should use the "excellent Report of the Registrar" as a basis, and go through it clause by clause. All of it was acceptable to him as an individual and presumably to his party as well. He opined that the committee would cut out much debate if it started with paragraph 4.1 in the report.

The Committee agreed to this.

Discussion on Report's recommendations
"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."

Paragraph 4.1
The Deputy Chair asked if there was any comment on 4.1

Ms Van Wyk (UDM) commented that the UDM did not see the non-disclosure of the Tigerhof property as an omission. This is because in 1996 Mr Yengeni did declare the property. However in 1997 there was a change. She said that the UDM would like to see this forming part of the investigation.

Mr Gibson supported Ms Van Wyk. He believed that Mr Yengeni's explanation was disingenuous and untruthful. Mr Yengeni had stated that his reading of the clause meant one only had to declare once yet he had declared the Gugulethu property twice. Accordingly Mr Yengeni did not declare the Tigerhof property on purpose and it was not a mere omission. This might not be the most serious omission but it was wrong and one should not say that no further action needs to be taken, particularly since Mr Yengeni's attention was now drawn to the matter. There was no merit for Mr Yengeni to state that he had to declare once and not again.

Mr S Blanche (FA) concurred with Ms Van Wyk.

Mr J Cronin (ANC) took an opposite view and stated that he agreed with the Registrar's recommendations. To impute some devious motivation would amount to "going on a fishing expedition in the matter". He concurred with Mr Gibson's assertion that this might not be so serious an omission. There are other serious issues and allegations that the committee is dealing with. He said that it would cloud matters to suggest that the committee was on some kind of a witch hunt against the individual and make a "mountain of an omission". He recommended that the committee should agree with the Registrar's recommendation and thereafter call upon Mr Yengeni to submit the details of the property to the Registrar in accordance with the Rules. It was hoped that the Registrar would be able to report that there has been compliance with the instruction from the committee in this regard. He stressed this point of view.

Mr Blaas (NNP) said that the committee ought to be very careful in handling the inquiry as it had the potential to set a precedent with regard to how other matters are dealt with. He maintained that it was clear that there had been a breach of conduct according to the basic rules set out in the guidelines. He proposed that the committee should establish the fact that there has been a breach of the Code and take the necessary punitive measures, even if it was a simple reprimand.

Mr Van Niekerk (FA) agreed with Mr Cronin. What his other colleagues expected from a Member (Yengeni) was too much. Mr Yengeni completed the form and declared the property. Thus it is common cause that he has the house. He opined that there was no reason to disagree with the Registrar on this issue and no further action ought to be taken. He said that there was no need to "hunt" a person. Otherwise there would be a danger in charging dozens of parliamentarians for omissions of like nature. He recommended that the committee should follow the Registrar's recommendations and leave the matter as it stands.

Mr C Mulder (FF) repeated the point that the committee was setting a precedent regarding procedure to be used in other inquiries. It was in this spirit that one had to have regard to the Code itself. He referred to paragraph 1.2 of the Code's definition's clause where it states that "the good faith of the Member concerned must be the guiding principles". He supported the Registrar's proposal in this aspect.

Mr Ditsetelo (UCDP) stated that the Registrar's recommendation in 4.1 be followed. However, there was a bit of ambiguity and clarity should be sought from Mr Yengeni in that regard.

Mr E Moorcroft (DP) said that there was more than "a bit of ambiguity" because the committee had heard that there was no proper identification of the property mentioned in 1996. The committee was dealing with a property that had not been mentioned in the most recent account. It therefore cannot be passed off as something that was merely overlooked without further reference.

Mr Cronin said that he was grateful for Mr van der Merwe's support. He did not want his viewpoint misconstrued to be that they did not expect the highest level of conduct from Members. They do expect the highest level of conduct from all members regardless of their party and they do expect members to fulfill the letter of the Code of Ethics. It was not their argument that there was a willful provision of false information and thus they give Mr Yengeni the benefit of the doubt.

Mr Aucamp agreed with the views of Mr van der Merwe and Dr Mulder that Mr Yengeni be allowed an opportunity to be heard. He said that it would not be possible that justice be achieved without the accused person's presence. He stressed the relevance of the audi alteram partem rule.

Ms De Lille said that Mr Yengeni must be allowed to respond to various charges against him.

Mr Ntuli acknowledged Ms De Lille's assertion. However the committee had already agreed on a process to deliberate on the Report clause by clause. It would be shifting the goalpost if it adopted an entirely different approach.

Mr J Momberg (ANC) moved for paragraph 4.1 to be considered as adopted by the committee.

Mr Gibson said that the committee should be mindful that this was not Mr Yengeni's first transgression of the Code of Conduct. He drew the committee's attention to a media article some years previously in the Sunday Times entitled "Parliamentary Cheats" with a photpograph of a number of Members of Parliament standing next to a helicopter in Texas. The newspaper reported that only two MPs had declared the trip, Thabang Makwetla and himself. The other Members of Parliament, including Mr Yengeni, had failed to make a declaration. It was a substantial trip to the United States which also needed a declaration. Thus it was Mr Yengeni's second offence, not the first.

The Deputy Chair replied that it was not necessary to look at previous "convictions". The committee would rather restrict itself to the inquiry at hand. As a lawyer, Mr Gibson appreciated that previous "convictions" are only considered once a person has been found guilty.

After calling the meeting to order the Deputy Chairperson outlined the two suggestions that had been proposed:
- Mr Yengeni should be called to clarify issues
- Mr Blaas's suggestion that there be a guiding principle in order to set a precedent regarding how the committee were to deal with similar matters in the future.
There was also a view on the floor suggesting the adoption of the Registrar's recommendation as it stood. The Deputy Chair alluded to the fact that if Mr Yengeni was called to testify, that would be a closed meeting in terms of the Rules.

Mr Matthee (NNP) recommended that Mr Yengeni be given an opportunity to explain his non-disclosure of the Tigerhof property.

Mr D Nkosi (ANC) suggested that the committee should also investigate the manner, extent and scope of how a person is expected to make a disclosure. This was to ensure that there was proper information for Members to make a disclosure.

The Deputy Chair stressed that the members must be mindful of the fact that the Code was still fairly new, hence the need for the establishment of a process to best resolve the matter.

Mr Surty (ANC) said that the issue that had to be considered was whether there was sufficient compliance. Furthermore, it was not disputed that there was an omission. He recommended that the committee should accept that there was non-compliance and thereafter Mr Yengeni be given a chance to rectify that omission as proposed by Mr Cronin. He proposed that the committee should adopt the reasonable man's standard and the fact whether there was reasonable compliance by the Member.

Mr Gibson replied that there should be two options: that of voting and that of giving Yengeni a hearing in order to assist the committee to decide whether there should be a penalty or not.

Mr Mulder insisted that the committee should comply with the Rules of the Code before reaching any decision.

The Deputy Chair replied that the facts were not in dispute and said that he was only left with one choice - that of dividing the house.

Mr September (ANC) said that those who opposed the Registrar's recommendation should remember that in the event that Mr Yengeni does not comply with the Registrar's proposal, the committee still had an option to call him for a hearing.

Ms Rajbally (MF) stated that the committee should adopt the Registrar's recommendation.

The Deputy Chair subsequently took a decision to divide the House and said that there would be a vote on the matter.

Mr Aucamp suggested that they adopt 4.1 with an amendment: that Mr Yengeni did not comply with the requirements and that the committee should ask Mr Yengeni to correct it.

The Deputy Chair replied that that amendment was acceptable if it satisfied other parties.

Paragraph 4.2
Mr van der Merwe proposed that the committee should adopt this clause as it stands with the committee authorizing an investigation into the facts.

Mr Cronin, speaking on behalf of the ANC component of the committee, said that they support the substance of 4.2. He indicated that a forensic investigation is already underway, which would report in July. Its scope is wide ranging and will cover the information contained in the Sunday Times report. It would be redundant to institute a parallel investigation and would have many negative consequences for the effectiveness of the major investigation which Parliament had already instituted. He proposed that the last sentence be amended. He concluded that should that investigation report show any evidence of wrongdoing on a part of the Member of Parliament "regardless of who that Member might be", Parliament will then be in a position to take appropriate action on the basis of such report.

Mr Blaas said that the investigation should be focused on breach of conduct of the Code. This was a separate issue as compared to the full Arms Deal investigation and possible corruption. These were separate issues that should be divorced.

Mr Gibson concurred with Mr Blaas and said that he took Mr Cronin's proposal in a serious light because if it was accepted, the Parliamentary Code of Ethics would cease to exist in any meaningful terms. His opinion was that it would be destroyed. He said that this would enable people to say that they are not making a declaration until the police or somebody investigates. He stressed that what was investigated by the committee was not corruption nor criminal conduct, but whether the Code was breached or not - the Code that requires Members to make a disclosure if they've received a benefit in excess of R350.

Ms Van Wyk agreed with the last two speakers and added that the committee should be able to investigate its own members and not delegate this responsibility into the hands of other institutions.

Mr Aucamp commented that Mr Cronin's argument may be applicable to 4.3. However, in 4.2 the committee would only be investigating whether Yengeni complied with the Rules or not. This was not meant to be a criminal investigation.

Mr Cronin replied that the ANC proposal should not be misconstrued. It was wrong to suggest that their proposal was meant to be a delegation of responsibility. The facts before the committee were insufficient to make any rational judgment. Therefore, the Registrar has rightly recommended that there should be an investigation process to establish all the relevant information. It was their belief that "this extensive, competent, professional and tri-pronged" investigation currently underway is dealing with all of the matters that the Ethics Committee is interested in. To achieve an effective outcome would be to allow the investigating process that Parliament has put underway - and to reconvene after it has produced a report to see what facts assist the committee so that it may move forward. This was not a matter of abrogating responsibility or authority. It would be a matter of waiting for a few months.

Ms De Lille hammered the point that everybody in this country is entitled to administrative justice and stressed that Mr Yengeni be afforded an opportunity to be heard in terms of the committee's own Code of conduct and process. She even proposed that section 2.7 be invoked, which is also the Registrar's recommendation. She also made a comment regarding the issue of separation of powers. She asked if Parliament could delegate its responsibility to another structure that must also account and report to Parliament. She said that such would be a result if this investigation was passed on or delegated to another body. She stressed that these other organizations are accountable to Parliament and that the committee could not delegate its responsibility to them. She recommended that Mr Yengeni be brought into the committee so that the may be dealt with substantially.

Mr Mathee said that the problem with Mr Cronin's proposal was that it created an impression that Parliamentary Ethics Committee is not able to establish the facts. He concurred with the recommendation that the committee should adopt the Registrar's recommendation and that Yengeni be should be invited to give a full account, as well as appointing forensic auditors to ascertain the facts.

Mr Moorcroft's point was substantially the same as ones that have been raised by previous speakers. He said that the committee does not have the facts and, it followed that the only person that has the facts is Mr Yengeni. He asked for an explanation why the African National Congress's component was reluctant to call in My Yengeni to stand before the Committee and answer questions put to him to ascertain those facts. He said that this matter would be resolved within a short period of time if the committee adopted that route instead of it carrying on interminably.

Mr Van der Merwe proposed that the committee accept 4.2 as it stands. He alluded to the fact that it now appeared that the ANC ha a different investigation in mind. The Registrar had proposed a different investigation. He said that he did not understand Mr Cronin's logic. He said that it was easily within the grasp of the Ethics committee to institute its own investigation. There was no need to leave it in the hands of the Auditor General and so forth, and asked if Mr Cronin would clarify his proposal.

Mr Blanche said that Parliament has its own Code of conduct which may be different to the Ethics committee's. He proposed that Yengeni be called to respond to the allegations against him.

Mr September mentioned that Mr Yengeni had said that he was prepared to submit to any investigation in his statement to Parliament on this issue. He said that the Registrar's proposal amounts to a second mechanism for the investigation. The proposal is that there should be another mechanism to be set up by the Government. He mentioned having perused Mr Yengeni's letters and said that the impression that he gathered was that Yengeni was reluctant to submit to the Ethics committee due to the existence of another investigation in which he is involved. He said that any lawyer, as much as Mr Gibson is, will decline to submit to another another investigation or give evidence during the existence of a simultaneous investigation. That was the real reason Mr Yengeni did not avail himself to the Ethics committee, he said. He concluded by stating that the committee should wait until the completion of the investigation already underway, failing which recourse would be had to the Ethics committee.

Mr Momberg said that the committee should separate the facts from the process. He stressed that the investigation that is already established should be used. He emphatically denied that he is not part of the process or design to cover up or hide the information. If there was any intention to cover up they would have raised a recommendation that there should be a vote on the matter.

Mr Gibson asked the reason why the ANC was terrified of having Mr Yengeni coming before the committee and producing the documents, secondly why was Mr Yengeni terrified of availing himself before the committee and "telling the truth". He said that Mr Yengeni was avoiding coming before the committee because he was scared of the danger to incriminate himself. He said that one cannot be scared of the danger of incriminating oneself unless one has done something wrong. He said that the ANC wanted to delay the matter by dome few months and subsequently say that there was no evidence of criminal conduct. He concluded that the ANC must explain why they are terrified of hearing the truth.

The Deputy Chair stated that the committee must address the facts and nothing else.

Mr Van Wyk raised a point of order that it was unfair for Mr Gibson to say that Yengeni is terrified to appear before the committee. He said that it was unreasonable to say so and that there was no evidence and was an insult to a colleague.

Mr Aucamp said that the committee should be careful of the danger of prejudging the whole matter before there has been any investigation.
The Chair stressed that the committee needed to find facts in order to be able to make a judgment after which there would be a basis to investigate.

Ms Vilakazi (IFP) commented that once the investigation has started it wo not be fruitful to have another investigation until the outcome of the current investigation is known. Her opinion was that there would be multiplicity of proceedings if this were allowed.

Mr Ditsetelo said that the committee has heard all the views on the matter. All the areas that the committee sought clarity on had been identified. It was therefore necessary to have Mr Yengeni to come before the committee.

Mr Blaas said that the issue was whether did in fact Mr Yengeni had a free use of the vehicle for seven months without disclosing the benefit and nothing else. If it so be that he had a car, why did not he declare that the benefit.

Mr Gibson commented that there are two separate processes here. Firstly, there was a breach of the Code in a sense that he had a benefit and did not disclose this benefit. He commented that the ANC had already caucused how to resolve this issue. The Deputy Chair said that he was out of order as he was disrupting the meeting.

Ms De Lille suggested that there should be a vote on a matter.

The Deputy Chair noted that he had been reluctant to move towards voting.

Mr Ntuli supported Ms De Lille's suggestion that there should be a vote.

Mr Gibson asked if they could vote on whether Mr Yengeni should be called to appear before the committee.

The Deputy Chair replied that the committee would resolve the process.

The Deputy Chair asked if there were any contrary views to the proposal that was suggested by Ms De Lille supported by Mr Ntuli on 4.2

Paragraph 4.1 voting
Mr Aucamp repeated his proposal that he had made earlier that 4.1 should be read to the effect that Mr Yengeni did not comply and that he be asked to comply.

The Deputy asked that there be a vote on the members who concurred with Mr Aucamp's proposal as amended. The proposal was voted on and accepted.

Paragraph 4.2 voting
The Committee was divided between those who contended that the investigation must be conducted by the already established Investigating Unit and those who were proposing an opposite view that the investigation be initiated by the Ethics Committee. There was a vote on the matter.

Mr Gibson suggested that instead of calling the Unit as a Special Investigating Unit it must be called the Joint Investigating Team. Mr Cronin phrased the resolution in the following manner "In respect of the motor vehicle the committee recommends that this committee should await the report of the Joint Investigating Team. Should this Report show wrongdoing on the part of any Member of Parliament, including Mr Yengeni, the Joint Standing Committee on Ethics would then be in a position to take appropriate action on the basis of such Report".

The Chair asked for a vote in regard to the adoption of this Resolution. The majority was 22 as opposed to a minority of 7.

Paragraph 4.3 voting
All members unanimously agreed to adopt 4.3 as it stood.

The meeting was adjourned.

Appendix 1:
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. Background
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
· The motor vehicle was ordered as a private staff vehicle for Daimler Chrysler.
· It was licensed in Cape Town on the 22 October 1998 in Mr Yengeni's name.
· The motor vehicle was registered with Stannic as the title-holder.
· That Mr Yengeni entered into a financial agreement Daimler Chrysler Financial services on 28 May 1999.
· 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
· Computer printouts from Daimler Chrysler that the car was ordered as a staff car,
· The motor vehicle registration papers and
· 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. Conclusion.

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.

Fazela Mahomed
Registrar of Members' Interests