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JOINT COMMITTEE ON ETHICS AND MEMBERS INTERESTS
22 May 2001
YENGENI ETHICS INQUIRY
Deputy-Chairperson: Mr M Mushwana (NCOP)
Documents handed out:
Registrar's Report (see Appendix)
It was agreed to include the views of the minority parties in the Registrar's Report. The Committee was divided on whether Mr Yengeni should be asked to address the Committee on the allegations against him. After lengthy discussion, no decision was reached on whether Mr Gibson's complaint about the media allegation concerning monies in Mr Yengeni's bank account should be a separate complaint or form part of the ongoing investigation. The issue of the declaration of Mr Leon's wedding gifts was postponed due to time constraints.
Discussion on the Report by the Registrar:
The Chair stated that all the issues pertaining to the house and motor vehicle of Mr Yengeni are included in the tabled report drafted by the Registrar, Ms Fazela Mohammed.
Mr P Matthee (NCOP, NNP) stated that the Report does not reflect that the minority parties had voted against Recommendation 4.2 of the Report. The minority had also wanted Mr Yengeni to appear before the Committee to state his case but this was also omitted in the Report. Mr Mathee was adamant that the views of the minority should be included in the Report. If not included an alternative could be the tabling of a minority report. He added that there is no provision in the Rules of Parliament to prevent this.
Mr K Durr (NCOP, ACDP) clairifed that the Rules of the National Assembly do not allow for a minority report but that the NCOP Rules do allow for it.
The Deputy-Chair said that the issue is not about a minority report but about the minority views being included in the Report.
Ms S Seaton (IFP) stated that there should not be a problem with including the minority views in the Report. To which, Mr J Momberg (ANC) and Mr E Moorcraft (ANC) agreed.
Mr J Cronin (ANC) felt that too much was being made of the issue.
Mr Mathee felt that his request was not unreasonable, as members should not make decisions in the Joint Committee on Ethics along party lines but that it should reflect their personal views.
The Deputy-Chair stated that there is nothing in the Rules that says a member should not make decisions in the Committee along party lines but rather based on their personal views.
Mr Mathee agreed but quoted from Hansard (Column 3185 of Wednesday 14 August 1996) regarding a statement made by Minister Kader Asmal that members would not be allowed on the Committee if they are following instructions from their parties.
Mr Cronin stated that the Committee should agree that some members make decisions based on their party's views whereas others use their own initiative. Either way no rule applies. He suggested that the Report reflect that the outcome of the vote on Recommendation 4.2 of the Report was 22 - 7 in favour of the majority party.
Mr Mathee felt that this was not good enough. The actual views of the minority should be reflected.
Mr Aucamp (AEB) asked, if the minority views are to be reflected in the Report, who is to formulate the actual wording.
The Deputy-Chair stated that the Registrar has transcripts of the meeting. The Registrar would thus capture the essence of their viewpoint, circulate it to the minority parties so that its accuracy could be checked and thereafter it would be included in the Report.
Mr E Moorcraft (DP) stated that he had made a draft of the minority's views and proceeded to read it to the Committee. The Committee agreed to the draft and it will be included in the Report.
Ms P De Lille (PAC) stated that in the Report, the Committee had decided that Mr Yengeni had to furnish particulars of the house that was not declared by him previously. She asked why had the request not been followed up?
It was noted that the Registrar had written on 21 May 2001 to Mr Yengeni making the request. The Committee is still awaiting a response. Mr Mathee said that he hoped that a time limit had been stipulated in the letter. The Registrar replied that a response date had not been specified. Ms Seaton was disappointed that the letter had been sent so long after the 9 May when the decision to request this information from him had been taken.
Mr L Green (ACDP) stated that the Code of Conduct stipulates that where allegations has been made against a member such member must be called in to the Committee to give his viewpoint.
The Deputy-Chair noted that the available facts did not allow the Committee to make an informed decision. It had been decided to wait on the outcome of the investigation and thereafter to call Mr Yengeni to address the Committee.
Dr E Jassat (ANC) pointed out that Mr Yengeni had made a statement in the National Assembly and it was therefore unnecessary for him to address the Committee.
Mr C Frolick (UDM) commented that he had not made the statement because he had been asked to but that it had been voluntarily done.
The Committee accepted the proposal of Mr S Blanche (FA) that Mr Yengeni be required to submit a response by 31 May 2001. The Registrar will include the response date in the Report.
Discussion on Second Complaint by Mr D Gibson:
This complaint relates to an allegation in the media about money in Mr Yengeni's account.
Mr Cronin believed that this is not a separate issue but additional information on an existing investigation.
The Registrar stated that there is no substance to the complaint nor evidence to support it. She added that if the Committee were going to pursue matters raised in the media it would set a precedent. She pointed that the allegation is linked to the arms deal, which is already being investigated.
Mr Cronin agreed and proposed that the Committee await the outcome of the Report by the joint investigating team. The way forward would then be much clearer. Ms Seaton supported Mr Cronin's proposal.
Mr Moorcraft was concerned about how the allegation would be substantiated. The newspaper would surely not be willing to divulge its source. Mr Gibson is therefore requesting that Mr Yengeni come forward to shed some light on the allegation as he would know if the allegations are true or false. Mr Frolick agreed that this is in keeping with the Code of Conduct.
Ms De Lille cautioned against the Committee setting a precedent on investigating allegations that arise out of the media. She stated that the bottom line is that no decisions can be made without having given Mr Yengeni the opportunity to state his case.
Mr S Ntlabati (NCOP, ANC) proposed that the issue be dealt as part of the original complaint of Mr Gibson. Mr Cronin supported this proposal that the issue be dealt with as part of the current investigations on Mr Yengeni. He added that the Committee must come up with a procedure on how to deal with issues that arise in the public domain.
Ms Seaton's view was that it was not a new complaint but disagreed with the Registrar that the allegations lack substance.
Mr Mathee quoted Mr Yengeni as saying that there is money in his bank account and he does not know where it comes from but that in any case he does not have to explain it. Mr Mathee felt strongly that the issue is separate from the investigation on the arms deal.
Mr Cronin quoted Mr Gibson's words "for sake of completeness" which emphasised the "completeness" of an existing issue and can therefore not refer to a new complaint.
Mr Ntlabati felt that the issues of the motor vehicle, the house and the bank account are all linked. The Committee should only deal with the issues once a report is obtained from the investigators.
Ms De Lille stated that there are two decisions that the Committee should decide on:
(i) Whether the issue of the money in Mr Yengeni's bank account is part of the existing investigation or whether it is a separate issue that must have its own investigation.
(ii) Is the Committee going to ask Mr Yengeni to appear before them?
The Chair proposed that the matter be closed for the present.
Discussion on whether Mr Tony Leon should declare his wedding gifts
The Chair read out Rule 9(3) that deals with declarations.
The Registrar noted that Mr Leon had written to her inquiring if wedding gifts should be included in the confidential part of the Register. She said that the original code does not require traditional gifts such as birthday gifts to be disclosed. She emphasised that this is a policy decision.
Due to time constraints, it was decided to postpone the matter and the meeting was adjourned.
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
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