SCOPA Joint Investigation Task Team Resolutions on Strategic Defence Procurement Packages: hearing with Armscor, National Prosecuting Authority, Department of Trade & Industry, Department of Public Service & Administration

Meeting report

National Prosecuting Authority (NPA) submission
The Chairperson, welcoming Advocate Mokotedi Mpshe, Acting National Director of Public Prosecutions, National Prosecuting Authority, referred to the Committee's recent letter to him. The letter had referred to a 2001 resolution of Parliament, in relation to some of the work that he had been pursuing, on what is commonly known as the arms deal. His submission, together with those of other affected departments, was evaluated and it was felt that it was necessary to have an engagement with him, so that some of the areas could be discussed, and he could give the Committee some clarity. The Chairperson offered him the opportunity to talk about issues in his letter first of all before answering Members' questions. He was not asking for a submission.

Advocate Mpshe, thanked the Chairperson for that privilege, but said there were no issues that he wished to talk about first of all.

Mr E Trent (DA) said that it had been reported in Noseweek that the gold beneficiation project undertaken by British Aerospace in conjunction with Harmony Gold in the Free State had been closed due to mismanagement and corruption, which had led to severe losses. The article also alleged that the National Prosecuting Authority was in possession of a list of Ministers who had received payments from the United States partners in the enterprise. He asked if the list existed; if so, if the National Prosecuting Authority planned to pursue prosecutions in that regard. He asked which ministers had been so named; and for the relevant details of the investigation that, according to Newsweek, KPMG was concluding, but which had been taken over by the Directorate of Special Operations and by the National Prosecuting Authority, and as a result of which investigation suspects had been arrested and then released. He asked if the National Prosecuting Authority was continuing the investigation.

The Chairperson said that the investigation had been in progress for a long time. He asked Advocate Mpshe, if he was satisfied that the National Prosecuting Authority was making satisfactory progress in its investigation, and if there was any prospect of an early conclusion of the investigation. If not, he asked what were the challenges, and how the National Prosecuting Authority envisaged circumventing them.

Advocate Mpshe, responded that the National Prosecuting Authority was satisfied that it was moving in the right direction. It was correct to say that the investigation had been in progress for almost eight years; this was too long, but there were reasons for this delay. Firstly, the matters in themselves were complicated; secondly, the investigation was not entirely domestic; overseas jurisdictions were involved; thirdly, it was the kind of investigation in which litigation was a norm; one could not say that the National Prosecuting Authority was progressing at the same speed as three or four years previously; some experienced investigators had since left as a result of the formation of the Directorate of Priority Crime Investigation (DPCI) in the South African Police Service. These people had to be replaced, but it was not easy for new investigators to acquaint themselves with such a complex investigation. The foregoing presented challenges to the National Prosecuting Authority. The other challenge was the interaction with foreign jurisdictions. Obtaining information from the United Kingdom or from Switzerland was not a matter of a mere telephone call; there were legal processes that one had to follow. Those were the challenges with which the National Prosecuting Authority was faced with.

Mr Trent asked specifically if the gold beneficiation project undertaken by British Aerospace in conjunction with Harmony Gold in the Free State project was still under investigation. There had, however, been a good deal of misinformation in the Noseweek article; he did think that it was correct to say that there had been a list of ministers.

Mr Willie Hofmeyr, Head of the Asset Forfeiture Unit, National Prosecuting Authority, said that an investigation was still in progress.

Mr Trent asked about the suspects who had been arrested and then released.

Mr Hofmeyr said that the National Prosecuting Authority was not prepared to answer questions on that specific investigation. He said that if there were any written questions, the National Prosecuting Authority would try to respond to them afterwards.

Mr Trent said that it was common knowledge that in November 2008 the National Prosecuting Authority and the Directorate of Special Operations had conducted raids on the properties of Fana Hlongwane, Johan Bredenkamp and British Aerospace Southern Africa. He would not ask which documents had been seized, since he appreciated that this information was confidential. However, he was concerned about the National Prosecuting Authority's resources, and very concerned that it was making slower progress than it would have wished. He asked how many investigators had been tasked to process the documents seized, how many investigators were working on that particular investigation, and on other investigations related to the arms deal. He asked what would be the minimum number of investigators needed to do justice to such an investigation. He asked how large a team was needed to probe to the bottom of all these allegations. The President had said in his reply to questions on his State of the Nation Address that there was no need to make a fuss – if one had information it should be given to the National Prosecuting Authority, but, in Mr Trent's view, if the National Prosecuting Authority did not have the necessary investigative capacity, members of the public might feel unwilling to give information.

The Chairperson said that the key question, arising from Mr Hofmeyr’s earlier response, was the question as to the National Prosecuting Authority's capacity to complete the investigation in a reasonable time. He said that it was important to keep the discussion focussed on matters arising from the National Prosecuting Authority's submission to the Committee. The same applied to other respondents.

The Chairperson asked further whether resignations from the National Prosecuting Authority would impede the investigation, and how much longer the investigation would take.

Advocate Mpshe responded to Mr Trent's question on the investigation; 'the investigation in this matter is not going to take a very short time’. This was because many documents and much information needed to be analysed. It was necessary to engage a forensic company to assist the National Prosecuting Authority in its investigation. But it was certainly fair to acknowledge that constraints existed.

The Chairperson asked if he had heard Advocate Mpshe correctly about resignations. He asked if he was correct to infer from Advocate Mpshe that the dissolution of the Directorate of Special Operations and the formation in its place of the DPCI had exacerbated the resignation of staff from the National Prosecuting Authority.

Mr Hofmeyr responded that the dissolution of the Directorate of Special Operations and the formation of the DPCI had indeed caused a great deal of uncertainty amongst staff of the National Prosecuting Authority. 'There were a number of resignations. However, over the previous few months, with the process becoming somewhat more certain, the National Prosecuting Authority had managed to 'stem the tide of resignations a bit'. He estimated that the National Prosecuting Authority was probably losing about six staff members a month. In the normal course of events, this would not be a huge problem; however, the problem was that they were not being replaced. Since the announcement the previous year, the Directorate of Special Operations had not recruited any new staff. The biggest problem was that leavers were not being replaced.

The Chairperson asked how the formation of the DPCI affected the ongoing investigation.

Mr Hofmeyr responded that since October 2008 the National Prosecuting Authority had continued the investigation with a joint task team with a brief to discuss the amalgamation of all the units with the Directorate of Special Operations. That process was going reasonably well. It was hoped that this would not have an adverse effect on the cases with which the National Prosecuting Authority was dealing. However, in view of the large amount of documents, there was complexity in the investigation. He said that the Ministers of Justice and also Safety and Security needed to specify a mechanism to ensure that cases were not harmed by the process of transition. The Ministers had held discussions and progress was being made on those details. He did not think that the relocation of the Directorate of Special Operations would have a big impact on cases in progress. Staff losses were a bigger concern, especially since they were not being replaced.

The Chairperson inferred that the new unit, the DPCI, would not have the capacity to handle the ongoing investigations. This might effectively cause the discontinuation of ongoing investigations. He asked if that should be a legitimate concern of the Committee.

Mr Hofmeyr assured the Committee that the National Prosecuting Authority was doing its utmost to make the process [of amalgamation] as effective as possible. There was no question that any investigations would have to stop. The problem remained the shortage of skills to deal with these matters expeditiously. The new unit would have sufficient capacity, but perhaps not enough capacity to deal with the investigations as quickly as desirable.

The Chairperson said that his question was not whether there had been an administrative decision to discontinue investigations, but whether the administrative capacity to continue might not longer be there.

Advocate Mpshe said that the Chairperson's concern was legitimate. The National Prosecuting Authority had become aware that some of the investigations might suffer because of the resignations. The National Prosecuting Authority had decided to make the new unit, DPCI, work as effectively as possible. It was very much concerned about the big cases with which it was dealing, to the extent that it had endeavoured to persuade leavers to reconsider their resignations. As Advocate Hofmeyr had said earlier on, the National Prosecuting Authority had managed to persuade some of them to stay. Some of them had agreed to remain until these big cases had been completed. The hope was to get these very same people to continue in the Directorate of Priority Crime Investigation. The South African Police Service had agreed to assist with some very experienced people.

Mr D Gumede (ANC) asked for the percentage of resource allocation to this procurement case.

The Chairperson affirmed that the Committee was not discussing the general work of the National Prosecuting Authority.

Mr Hofmeyr said that the National Prosecuting Authority had tried to make clear in its response that this was a general problem not specific to the procurement investigation. With big cases, with possibly hundreds of thousands of documents involved, it was obviously difficult for somebody new to take over from someone else. There were 20 to 30 such cases that involved masses of documentation. The Authority was trying to draw in some police detectives to work on these cases in order that the handover process should be as seamless as possible. So the Authority had no fears about the process of relocation. However, it had to be conceded that 'there are not that many great investigators in the State in general.'

The Chairperson acknowledged that this was an important point.

Mr M Shah (DA) was concerned that a senior investigator had resigned after he had received threats. He asked if punitive action would be taken. Intimidation was a problem additional to that of capacity.

Mr Hofmeyr confirmed that one of the senior investigators involved with the arms deal had resigned, but that he was not aware that any threats had been made. That individual had never been in the police before; he was a lawyer who had entered the investigative field and then for career reasons he had moved to the private sector. Maybe there was more information that Mr Hofmeyr was not aware of.

Mr Shah asked secondly about the approaches that the National Prosecuting Authority had probably made to the German authorities,with regard to the prosecution of an individual who had yet to be named, who allegedly received a substantial kickback from an arms deal company.

Mr Hofmeyr confirmed that the status of the German Frigate Consortium (GFC) investigation was completed a couple of weeks previously, as stated in the NPA's report, There was no change. The Authority had not taken a decision to approach the German authorities. It was not itself in possession of any information about wrongdoing. The Germans had made a request to 'our central authority'.

The Chairperson argued that the Authority, according to its submission, had made a request to the Department of Justice to approach the German authorities, and if that requested information was not forthcoming, the Authority would direct its request to the German authorities. The Authority had not yet contacted the German authorities but was engaging with the Department of Justice. He asked what 'engaged' meant.

Advocate Mpshe responded that if the Authority did not receive a satisfactory response, it would then have to follow 'the legal process' to make its own request to the German authorities.

The Chairperson asked what the administrative challenges had been. He asked if making the Minister of Justice 'the first port of call' had been a challenge.

Advocate Mpshe said that the Authority had first directed its request to the Director General of the Department of Justice, in writing and in discussions, and in a meeting in October 2007. The Director-General had promised that some kind of a response would follow. It did not happen. In 2008 the Authority did the same. Not only did the Authority discuss its request with the Director-General, but also with the new Minister of Justice when he entered office.

The Chairperson asked what the particular problem was. He asked if it was merely failure to obtain a response, or an explicit refusal.

Advocate Mpshe said that the request that they had received had come from the Germans, through the Ministry of Justice. That request had been sent back [to the Germans] by the Ministry with a request for clarification. The National Prosecuting Authority did not know whether the response to this request, with clarification, had been returned by the Germans to the Director-General of the Department of Justice. The direct answer to the Committee's question was 'We have not received it to date'.

Mr G Lekgetho (ANC) said that he was satisfied that the National Prosecuting Authority was doing its 'level best' to retain employees. However, he said that an average of six resignations per month would indicate a total loss of staff. He asked exactly how many individuals had resigned.

Advocate Mpshe said that, whilst his colleague and he were looking for the exact figure, he could say that when the National Prosecuting Authority was having its meeting with the Director-General on the German matter, he had referred the German matter to the South African Police Service. He was going to convene a meeting between the National Prosecuting Authority and the South African Police Service to take the matter further; bur this meeting never materialised. The response was certainly not given to the Directorate of Special Operations.

Mr V Smith (ANC) pleaded that the Committee avoid extending the interaction to a general hearing on the arms deal ‘afresh’. He wanted to return to the origin of the matter under consideration. In December 2001 Parliament adopted a resolution from this Committee that the Committee noted the ongoing investigation and urged that it be concluded ‘speedily’. It had been the Committee’s intention to review the progress of the Committee’s original report, not to open new reviews and reports thereon. He felt that the first question that the Committee should ask was one that the respondents had alluded to in the discussion hitherto. In 2001 the Committee had said that it wanted the matter concluded ‘speedily’. However, eight years later, Mr Smith said that he sensed that the prospect of an early conclusion was remote. Respondents should explain to the Committee why the matter could not be concluded expeditiously.

Mr Smith asked secondly about ‘the capacity’. It was important for the Committee to know that the National Prosecuting Authority was able to complete its investigation, and complete it quickly. The ongoing monitoring of information that the Authority obtained and of the Authority’s conclusions was a different matter. He sought a direct answer to the question of whether the high staff turnover that the Authority had alluded to, would or would not materially affect the Authority’s capability to complete its investigation quickly. He also requested an explicit time-frame. The essential question was whether the Authority had fulfilled the Committee’s 2001 resolution. ‘I’m saying this because I don’t want to open another discussion around the arms deal, Chair’. 

Mr Smith said that his first ‘pointed’ question was that eight years from 2001, ‘one senses that ‘it could take a while longer’ - he wanted to know how much longer, for example, a maximum of four years, or a maximum of four months, or whether the Authority could not answer the question, since the Committee needed to make a decision. It was unacceptable that a resolution of Parliament should remain open-ended for the remainder of the lifetime of Committee Members. He asked for the Authority’s definition of ‘speedily’ in the Authority’s terms.

Mr Smith’s second ‘pointed’ question was whether the Authority could say to Parliament that, regardless of high staff turnover, the Authority could conclude the investigation, and that the skills shortage or drainage would not materially affect the Authority’s work.

Mr Smith said that on the basis of the Authority’s responses to the above two questions, the Committee would decide whether to exert more pressure on the Authority or to proceed otherwise.

Mr Hofmeyr replied that the Authority was about to answer a Parliamentary question on the issue of turnover. Since January 2008 until the end of January 2009 a total of 67 staff had resigned, excluding persons who had retired and other forms of turnover; that was about five per month.

In answer to Mr Smith, Mr Hofmeyr said that the Directorate of Special Operations’ investigation into the arms deal ‘had started to wind down two or three years ago’. However, as Members would be aware, it was the nature of arms deals investigations that ‘things emerge after time’. The Authority’s biggest impetus had come from the Serious Fraud Office investigation into British Aerospace. This had begun in 2006 on the basis of an American investigation into alleged BAe corruption. In response the Serious Fraud Office had launched a full-scale investigation into BAe, which investigation included the South African arms deal, concerning which significant evidence had thereby been discovered. The Serious Fraud Office had sought the Authority’s co-operation. It was, therefore, somewhat difficult to estimate when the Authority’s investigation would conclude, because it was inter-linked with similar overseas investigations.

Mr Smith asked, if at any time in the future, the French, or anyone else, undertook an investigation similar to that undertaken by the Serious Fraud Office, and they uncovered new evidence, South Africa would be duty-bound to re-open its investigation into the arms deal – or at least re-examine that part of it that could affect ‘us’. If the answer was affirmative, then Mr Smith’s understanding was that, as long as there was new evidence, regardless of the time-frame, the Committee would then have to examine the matter ‘afresh’. ‘The worrying part for me, Chair, is that we could have this arms deal saga with us for as long as there is a human being alive who could open up or find something – that is the implication of what we are hearing now’. In terms of the Committee’s resolution of a speedy conclusion, one might have to admit that such an expeditious conclusion was but a ‘pipedream’: an arms deal investigation was not something that could be completed quickly.

Mr Smith said that the Committee itself did not have investigative abilities. It was necessary to ask what the logical cut-off point was. He hypothesised that anyone produced something new, every five years or so, then the Authority would feel itself obligated to examine it, and thus prolong the investigation into the arms deal. Even if the Authority was able to retain all its skills, at some point natural attrition would cause the eventual loss of those skills. Thus one might have to admit that the investigation could not continue indefinitely. ‘I certainly don’t think we need another ten years of the arms deal.’ It was important for the Authority also, at some point, to reach closure, and produce its final report, ‘and let South Africa decide’. Mr Smith, however, stressed that ‘nothing should be put under the table’.

Mr Hofmeyr said that the Authority’s mandate to investigate would terminate in the next six to 12 months, depending on how long the process of forming the new unit, the DPCI, within the police service would take. He said that he was not answering on behalf of the Authority, because it would not continue to investigate. It had been a Directorate of Special Operations mandate, a mandate that would transfer to the police service. However, no one cold say that an investigation was complete, if new evidence of possible crime was brought to the attention of the law enforcement agencies. He suggested that perhaps Professor Richard M Levin, Director-General, Department of Public Service and Administration, could elaborate. South Africa was a signatory to the Organisation for Economic Co-operation and Development (OECD) convention on cross border crime prevention, so when a foreign country sought South Africa’s assistance, South Africa was legally obliged to co-operate. This convention was rigorous in its requirements. A few years previously, the Authority thought that it had reached a conclusion, but it was in the nature of arms deals that as people grew older their consciences became stronger and they felt that they should confess. Overseas colleagues would say that arms deals tended to haunt the countries involved. Ultimately it was not a question for the Authority to answer. It would be the mandate of the police to investigate any new evidence. However, the Authority had concluded its investigations into the allegations of impropriety that had emerged from the Joint Investigative Team (JIT) and that were known to the Committee at the time, ‘But it will never mean that new evidence will not come to light.’

Ms P de Lille (ID), although not a Member of the Committee, did not accept the Authority’s explanation of a lack of capacity. She accused it of a lack of political will, and interference in the process that led it not to investigate. She gave examples. For example, in 2007, she gave the Authority a case number from Munich, where a German supplier of cars to 20 or so South Africans had paid an admission of guilt fine of DM 10 000. When she requested from the German authorities the names of the recipients of cars, she was told that she must submit her request through South Africa’s National Prosecuting Authority.  The Authority had refused. Then, in 2007, Ms de Lille gave notice to the Authority that she would prosecute privately. She laid a charge at Caledon Police Station, Cape Town, and obtained a case number, but she was still waiting for a certificate from the Authority authorising her to prosecute privately. ‘So we have been trying to help the National Prosecuting Authority with information.’ Moreover, she had never heard of the National Prosecuting Authority’s seeking legal assistance from the United Kingdom or from Germany to assist in the investigation. The National Prosecuting Authority investigated only in South Africa, in spite of knowing that there were international links, for example, the Special Fraud Office in London, which had obtained legal assistance from South Africa, but from the South African Police Service not from the Scorpions (Directorate of Special Operations). This excuse, at this late stage, of lack of capacity, was certainly false. It represented the effect of political interference. Ms de Lille argued that the National Prosecuting Authority had served a sub poena on her twice; she had responded with all the information; but thereafter the National Prosecuting Authority had never investigated. The information that she had given to the National Prosecuting Authority had led to two successful prosecutions. That document has become part of the record of the High Court in Durban and in Bloemfontein, the Supreme Court of Appeal, and the Constitutional Court. ‘Still that document is being dismissed …. because the NPA failed to investigate.’ Now that the Directorate of Special Operations was being dismantled, the National Prosecuting Authority had a final excuse not to investigate.

Mr Trent said there was no question of closing down the arms deal investigation; one was talking about prosecuting individuals who had benefited inappropriately from the arms deal. One did not stop investigating a murder case because it happened ten years previously. If new evidence came to light, one perused the investigation. 

Mr Trent said that in the JIT report, the name of Mr Schabir Shaik was mentioned. He presumed that the National Prosecuting Authority had seen a memorandum sent to the Swiss authorities by Germany. Somebody had sent it to Mr Trent, who had arranged to have it translated from the German. In that memorandum, Mr Shaik’s name is mentioned, and it is alleged that he sought successfully to obtain a bribe from the Germans. Mr Trent assumed that the Germans would have sought the National Prosecuting Authority’s assistance, perhaps by way of ‘the document that you never got. Now Mr Chippy Shaik sits in Australia: he’s run away.’ Mr Trent asked why the matter of Mr Shaik had not been pursued. Everyone, to whom Mr Trent had spoken, from Mr Pierre Steyn downward, had agreed that failure to pursue the matter of Mr Shaik was a problem. Mr Trent asked the National Prosecuting Authority if it lacked the capacity to complete the investigation on Mr Shaik or if it lacked the evidence. Perhaps, as Ms de Lille suggested, the National Prosecuting Authority lacked the political will.

Both the previous and the current President had said that if anyone had evidence, he or she should go to the Directorate of Special Operations or to the police and lay charges. He asked how many written requests to further investigate the arms deal the National Prosecuting Authority had received in the past two or three years; and how many requests had been taken seriously. For example, Mr Young had written ‘dozens of letters’.

The Chairperson, mindful of time constraints, attempted to stop Mr Trent at this point from asking more questions, because Mr Trent had already asked his quota of two questions.

Mr Trent inserted his question as to how the National Prosecuting Authority proposed to overcome its capacity problem. He asked if a judicial commission of enquiry would be of assistance.

The Chairperson accepted Mr Trent’s question.

Advocate Mpshe, referred to Ms de Lille’s question, said that he was not prepared to answer allegations of political inference since there had been much speculation about this already. Ms de Lille’s request for a writ of nolle prosequi had not, to the best of his knowledge, been received, although he had ‘a vague idea about it’ from hearing Ms de Lille speaking on the radio, to the effect that she had obtained information from Germany and had handed it over to the National Prosecuting Authority. He said that he had noted Ms de Lille’s question, and would follow it up, if necessary, in writing, and explain his findings, the charges, and matters pertaining to the writ of nolle prosequi

Advocate Mpshe, as regards seeking assistance from foreign jurisdictions, said that it would suffice to say that the National Prosecuting Authority had been communicating with the Special Fraud Office, to the extent of a visit by the Office to South Africa, whereupon the Director-General of the Department of Justice had directed the Office to meet with the Directorate of Special Operations. Indeed, much assistance had been forthcoming. The only problem was with the Germans, and the memorandum for which the National Prosecuting Authority had been asking. Without that memorandum, the National Prosecuting Authority would not have enough evidence to continue the investigation into Mr Shaik.

Mr Hofmeyr said that Advocate Mpshe had covered most of what he, Mr Hofmeyr, had wanted to say. Neither of them could respond in detail to everything because they were ‘relatively new in this area’. However, Mr Hofmeyr had tried to examine very diligently all the allegations that had been made and all the information that had been presented to it. Ultimately to take action one needed evidence admissible in court. There might be evidence of which the National Prosecuting Authority was unaware. However, he did not think that there had been any political inference.

Mr P Gerber (ANC) said that he had witnesses how Ms de Lille had been given information by the Scorpions in a meeting with the Auditor-General, so he suggested that she should share the information with all Members of the Committee so that the investigation could go forward.

Mr Gerber asked Mr Hofmeyr if he could give rough figures for the total cost to the state so far of all the legal battles and court cases regarding these so-called arms deal transactions. Mr Gerber had heard IDASA mention a figure of half a million.

Mr Hofmeyr said ‘I would be very loathe to try to pull a figure out of my hat’ but the legal costs came nowhere close to the amount alleged by IDASA. Complicated forensic investigations were an additional cost.

Mr Smith requested that Mr Trent’s request for advice on the possible desirability of a judicial commission of enquiry not be answered. With all due respect, the Committee did not want advice from the National Prosecuting Authority. That advice must be something that Members of the Committee would discuss as politicians.

The Chairperson responded ‘Correctly so.’ The question of any enquiry beyond the National Prosecuting Authority was a political decision.

Mr Hofmeyr said that there had been ‘dozens of allegations’, but the National Prosecuting Authority could not give figures for allegations that it had not been able to validate. Validated allegations had been mentioned in the National Prosecuting Authority’s report.

Mr Hofmeyr said that judicial enquiries and criminal investigations did not fit well together, since, once people were compelled in a judicial enquiry to incriminate themselves, they could not be prosecuted in a court thereafter.

The Chairperson responded that he would want to rest the Committee’s interaction with the National Prosecuting Authority at that point.

The Chairperson said that the Committee had wanted to ensure that, with regard to the arms deal investigation, ‘no stone should be left unturned.’

The Chairperson said that the Committee wanted the arms deal investigation concluded expeditiously, and not become another soap opera like Days of Our Lives.

The Chairperson said that from the Committee’s side, ‘we are satisfied that so far you have done all in your powers and capacity to peruse the issues as identified then.’ The Committee hoped that the Department of Justice would co-operate in order to enable South Africans to carry on with their lives as citizens, wrong doers brought to justice, and one be enabled to move on.

The previous week the Committee had resolved that whilst one would not reject any new evidence that became manifest, such evidence should clearly be presented to the National Prosecuting Authority, not to the Committee, so that the investigation could be concluded once and for all.

Recommendations would be dealt with by Committee Members, amongst themselves, after the engagement.

Department of Public Service and Administration (DPSA) submission
Mr Gerber asked Professor Richard M Levin, DPSA Director-General, about the third, fourth, and fifth paragraphs, regarding financial disclosure and conflict of interest frameworks, in Professor Levin’s letter to the Committee dated 20 January 2009. The financial disclosure framework had been introduced on 1 April 2000. The draft conflict of interest framework for the pubic service had been informed by the Public Service Anti-corruption Strategy of 2002, and it was intended to submit it to the Cabinet for approval. Mr Gerber asked why the whole process was taking so long.

Professor Levin said that South Africa had acceded to the United Nations Convention Against Corruption, and thus had agreed to implement measures regarding conflict of interest. In addition the Public Service Commission undertook a study in 2006 which focused on conflict of interest in the public service. The Commission had recommended that the various mechanisms be integrated into a single policy framework. Therefore it was not entirely accurate to say that it had taken so long. The individual mechanisms were there; it remained to bring them together.

Mr Smith asked Professor Levin how effective corrective measures were. Measures regarding conflict of interest had been included in the Committee’s earlier recommendations because of events that had happened at that time. He asked Professor Levin, if, since this recommendation, conflicts of interest had become less frequent. It was not enough to achieve the issuing of a document, it was necessary to ensure that the policies embodied in the document were implemented. ‘Have the mechanisms that you have put in place assisted South Africa?’ It might be useful to double-check with the Auditor-General. From the Committee’s perspective, it was apparent that these mechanisms, specifically to avoid conflict of interest, were not working effectively.

Professor Levin replied that the mechanisms were effective, but that there was ‘room for improvement’. The Public Service Commission had undertaken a number of studies over the past eight or nine years into the effectiveness of measures against conflict of interest. Specifically, some work had been done on gifts and hospitality, and on work done outside the public service. A study that gave more statistical information had been conducted on financial disclosures. This had indicated progress, and a compliance rate initially of 62% by deputy directors-general and directors general. Compliance had risen steadily, reaching a peak in 2006/2007 with a compliance rate of 87%, with a fall the following year to 80%. Obviously one aimed for 100% compliance, though there would always be technical difficulties in achieving the goal because of such matters as turnover of staff. Professor Levin admitted that it was clear that there was a problem.

The Chairperson dissuaded Professor Levin from digressing, and remarked that the people whose compliance was measured were the senior staff, who themselves had a heavy responsibility to monitor compliance within their departments on a wide range of policy and procedural matters. If those senior staff did not fully comply, one had to ask how they could fulfil their responsibilities.

The Chairperson said that Professor Levin’s response did not indicate that sufficient work had been done with regard to conflicts of interest and financial disclosures. The Committee’s focus was on implementation and compliance.

Professor Levin responded that the process of drafting the conflict of interest framework was almost complete. The consultation process had been completed.

Professor Levin added that public service in South Africa was decentralised. Thus each department head was responsible for ensuring compliance. The Department of Public Service and Administration’s role, together with that of the Public Service Commission, was to monitor compliance. Heads of department would have to take more responsibility for not only receiving disclosure forms from staff but also interrogating disclosure forms to ensure that there was genuinely no conflict of interest.

Mr Gerber asked Professor Levin if the process would be extended to pubic entities

Professor Levin responded that the Department of Public Service and Administration’s jurisdiction did not extend to public entities. Even under the proposed legislation towards establishing a unified public service, which legislation had been postponed to the next Parliament, the Department would not have jurisdiction over such entities.

Mr Shah asked about the Department of Public Service and Administration’s proposal that ethics officers be introduced to assist heads of department in preventing corruption.

Professor Levin responded that the ethics officers would provide advice. Issues of criminality would be covered by various pieces of legislation.

The Chairperson opined that there was no conflict between the Committee’s interest and Professor Levin’s Department’s interest, and thanked Professor Levin for his participation.

Department of Trade and Industry (DTI) submission
The Chairperson referred to the Department’s response dated 23 January 2009. He understood from the Department that the National Industrial Participation Programmes ‘were actually the sweeteners to the deal’ and that they had given the deal economic sense; South Africa was buying those armaments for a certain amount, but there was an extra benefit. It might be argued that the deal made economic sense as well as military sense. The Committee wanted to know how much progress the Department had made in terms of the Committee’s 2001 resolutions.

Mr Gerber, with reference to the promise of some 40 000 to 65 000 jobs linked to the arms deal, asked where the jobs and factories were. In particular, he asked how many people had been employed directly as a benefit of the procurement packages.

Mr Tshediso Matona, DTI Director-General, replied that the Department had received a report that it had commissioned from an economic consultancy on the impact of the procurement packages, and on the National Industrial Participation Programme (NIPP). From 1996 to 2006, the strategic arms packages accounted for 80% of the entire Programme. But of the 173 projects that had been implemented between 1996 and 2006, the investments associated with those 173 projects amounted to R3.8 billion for investment, including technology transfer. Turnover associated with these projects was R38.7 billion. The total number of direct jobs was 15 689. Indirect jobs amounted to 34 620. The figure of 65 000 jobs promised included both direct and indirect jobs. Thus one could say that the Department was close to achieving that target. The outcome of the project was that substantial jobs had been achieved. The report to which he had referred mentioned other benefits. The jobs were mainly in the transport sector; also there were jobs in the mining equipment sector; also in plastics; also in health; research and development; and in agro processing. He would not be able to give the location of all the jobs geographically.

The Chairperson asked Mr Gerber if he had meant 40 000 to 65 000 jobs or the same number of permanent jobs.

Mr Gerber replied that he had read ’40 000 to 65 000 direct job opportunities’.

The Chairperson said that the figure of 15 689 direct jobs should not be conflated with the figure of 34 620 indirect jobs.

Ms de Lille asked for clarification as to the difference between direct and indirect jobs.

The Chairperson inferred that direct jobs were jobs directly resulting from the investments made in a project. Indirect jobs might relate to suppliers to that project.

Mr Trent referred Mr Matona to the written questions that he had handed to him. He emphasised questions on three specific projects. Mr Matona could respond in writing if he preferred. He asked if the Department could prove that given benefits were directly caused by particular investments.

Mr Matona informed the Committee that the Programme was governed by very clear rules that were internationally benchmarked and sought to ensure transparency. Also the Programme was audited by the Auditor-General. He referred to the Programme’s annual reports, of which a copy of the latest edition would be available to Members. An inter-departmental committee of all 11 departments monitored the projects. He felt that this constituted sufficient monitoring.

Mr Trent said that in his five years service on the Committee he had never seen an annual report of the Programme.

Mr S Zikode, DTI Acting Deputy Director-General, responded to Mr Trent’s specific questions. He emphasised a response of Mr Matona, and said that the Department’s monitoring of offset projects had been benchmarked against the best in the world. He explained in detail. Offset projects always had local partners.

Mr Gerber asked for a copy of the list of the 173 projects to be provided, via the Committee staff, to all Members.

The Chairperson asked if these 173 projects were all still operational.

Mr Zikode replied that the figure of 173 projects was the figure of two years previously. Currently, there existed around 200 projects. The failure rate was around 5% but the Department did not have the detailed statistics. He did not anticipate any other questions than those included in the Committee’s letter. The 173 projects included those that had failed.

A Member said that there was a problem in that the discussion was not linking projects to jobs.

Mr Gerber, with reference to the JIT report, asked for clarification as to the correct interpretation of the figure of R3.8 billion for investment.

Mr Matona replied that the R3.8 billion referred only to direct foreign investment. It would be the money that the offsets brought directly into the country. It did not include the domestic component of the investment represented by the participation of local partners.

Mr Gerber referred to a contracted commitment of €2.8 billion.

Mr Matona replied that he did not know from where those figures originated. In the Department’s documentation, commitments were expressed in US dollars.

The Chairperson said that Mr Gerber was reading from the JIT report. He asked to what extent the figure of R3.8 billion represented what was realised from the obligated companies. He asked what level of investment South Africa had expected, whether in dollars or in rands, and so far if that R3.8 billion represented a fulfilment of that obligation or if South Africa was lagging behind, or if they had gone beyond South Africa’s expectation.

The Department responded that there was a difference between the credits awarded to a project and the actual investments, and explained in detail.

The Chairperson said that the Department had responded by explaining the conceptual framework, but had not answered his question ‘Where are we?’

Mr Matona responded that the Department had aimed in its report was to highlight the direct foreign investment. Contributions of local companies had not been fully integrated into the figures. However, the Department did have statistics and could provide the information. Two of the five companies had fulfilled their offset obligations. Three of them were expected to complete their offset obligations by the end of 2009. If Members wanted more information, it could be provided.

The Chairperson asked Mr Matona how to ensure that the multiplier credit system was not used to fast track the companies’ meeting their desired quota of fulfilled credits. He asked Mr Matona not to appear impatient at the Committee’s apparent ignorance. Mr Zikode was present in the expectation that he would be to be able to enlighten the Committee with this technical economic information.

Mr Zikode explained. With the change of governmental expectations, there had been a shift beyond the manufacturing concerns originally envisaged. Primary economic activities such as mining and agriculture were not allowed under the offsets. In the initial contracts investments were to be made primarily in manufacturing. To take them beyond manufacturing the Department had to introduce this primary multiplier credit.

Mr Shah said that he was still somewhat confused by the information presented.

The Chairperson said that Mr Shah’s not having engaged with these matters previously, since he was new to the Committee, might present some contextual problems, with which he, the Chairperson, sympathised. So he would ‘lean very heavily’ on Mr Shah to ask his question when he was certain, or ‘let it pass’.

Mr Shah rephrased his question to say that he was dissatisfied with the answer. He asked if it was necessary to provide incentives for someone to invest when that person was, in terms of an agreement, already obliged to make such investment. He needed clarification on the matter of multipliers. If someone signed an agreement, there was a set target, and an outcome had to be achieved. He asked why it was necessary to give someone an incentive to fulfil an obligation that was in itself obligatory upon that person. He asked what evidence the Department of Trade and Industry could provide the Committee to illustrate that BAe was instrumental in facilitating certain investments and that BAe was not simply impressed into the project to earn easy offset benefits. The reason for this question was that it was commonly known that the largest investor in a certain project was the Industrial Development Corporation, a parastatal. That being the case, it had to be asked if it reflected poorly on BAe that it was awarded the offset credits when the greater investment was made by a local entity. He asked in how many instances had the Industrial Development Corporation been involved and to what extent in each of these instances the investment made by the Industrial Development Corporation had been acknowledged by offset credits from the relevant arms deal company as a result of facilitation.

Mr Shah’s concluding question was that it was common knowledge that during the period 2000-2001 the chairperson of the Industrial Development Corporation had connections with arms deal companies; and that from 2001 onwards his successor had similar connections. He asked if there had been any disclosures of conflicts of interest.

Mr Matona said that the DTI had responded to the Committee’s invitation on the basis of being prepared to answer probing questions on controls arising from the report of the JIT, as they related to the Department, and responsibilities in terms of the National Industrial Participation Programme. The Department had not come prepared to answer detailed questions on the particulars of specific projects. If the Committee wanted to invite the Department to do so, the Department would come prepared. Moreover, it was not the primary responsibility of the National Industrial Participation Programme to examine the credentials and possible conflicts of interest of chief executive officers and heads of companies. The Department examined projects in terms of the technical specifications, and if they complied with the requirements of the National Industrial Participation Programme. The line of questioning was taking the Department into an area in which it was least prepared to engage. Therefore, he appealed to the Chairperson to give the Department guidance.

The Chairperson replied that in cases where information was not available to respondents, the Committee was prepared to give a waiver, but, in view of the Committee’s second letter to the Department, the Committee had made it clear that it wanted to engage with the Department on the National Industrial Participation Programme. However, he conceded that there might have been specific items in the Members’ questions to which it would have been difficult to respond without special prior preparation by the Department.

Mr Zikode said that the Industrial Development Corporation rarely invested alone in any project. Offset investments in any project reduced the Corporation’s risk. Offset money was cheap money. In that way offset investment became the causative investment.  In the case of expansions of an existing project, it was more difficult to prove what the causative investment was. In the case of new, so-called green field, projects, causality was easier to prove, but there the Department would rely on the assistance of other parties.

Ms de Lille asked about targets. Government’s original plan in 1999 was that South Africa would spend about R30 billion; in return it would generate about R110 billion worth of investments, and about 65 000 jobs. In September 2006, in a question in Parliament to the Minister of Defence, as to how much South Africa had spent on the arms deal, to date, and how many jobs had been created, the Minister had responded that the expenditure on the arms deal to date, 30 August 2006, was a total of R29.6 billion. To determine the number of jobs that had been created directly as a result of the arms deal, it could only be quantified by determining the increase in jobs due to the Defence Industry Participation (DIP) and the National Industrial Participation Programme (NIPP). ARMSCOR calculated the jobs created by DIP to be approximately 5 000. The Department of Trade and Industry estimated the number of jobs created by NIPP to be approximately 8 000. That was the response by the Minister in Parliament in 2006. Ms de Lille asked when these targets would be achieved. She asked if there would be any more new projects. Moreover in most of the contracts there was a penalty cause for suppliers who did not deliver on time. Ms de Lille asked the Department if it had ever invoked that penalty clause.

Mr Matona responded that the figure of 65 000 had been only an estimate of the number of both direct and indirect jobs. In terms of the study done on the NIPP, the Department was satisfied that it was close to attaining the target, if both direct and in direct jobs were combined. At least in terms of the NIPP, it would be extremely difficult to achieve 65 000 jobs. The Department would make the whole study available, since it demonstrated the benefits to NIPP to the gross domestic product (GDP). Of course, some of the companies involved had discharged their obligations. Of the remaining obligations, the Department believed that it could make an enormous contribution and perhaps exceed its targets, but it was difficult to be specific since the Department did not know where the remaining projects would be located to discharge the remaining obligations. Generally, the majority of obligors had performed very well. In those instances where they had not done so the Department had engaged with them. According to legal opinion provided to the Department the agreements had been well crafted and the penalties for default were enforceable.

The Chairperson inferred that the Department had not been obliged to invoke penalties, and that earlier on the Department had stated that two of the companies had completed their obligations, while the other three would complete them in the current year of 2009, with only one that had until 2010 to do so. In that light, one could not realistically hope for many more jobs to be created.

Mr G Koornhof (ANC) said that the Committee had felt uncomfortable with the Department’s two page response with regard to such a major offset. For that reason the Committee had summoned the Department. He put on the table the Committee’s insistence on obtaining from the Department a full response, lack of which had resulted in the Committee’s being at cross-purposes with the Department during the morning’s interaction.

Mr Koornhof asked further if the Department’s reports on the NIPP were tabled in Parliament, and been considered by the Trade and Industry Portfolio Committee.

Mr Matona replied that he regretted the misunderstanding. With regard to timely fulfilment of obligations, there were economic factors beyond the control of the Department.

The Chairperson responded that the Committee’s invitation to the Department was both general and specific, but clear. However, any information that the Department could not provide in the meeting, could be provided subsequently to Members.

Mr H Bekker (IFP) asked about a sawmill project. Targets for job creation should have been achieved before the current economic downturn. The 65 000 jobs figure had been unrealistic and had frustrated expectations. Hopefully, one would not see an arms deal again.

Mr Matona was satisfied about the economic benefits.

The Chairperson proposed that discussion be focused at this time on the lessons that the Department should learn with regard to the awarding of credits. The number of jobs promised was very problematic; this was especially so when eight years after the original projection, the director-general concerned said that the figure concerned was a ‘thumb suck’.

Mr Zikode admitted that the Department had learned many lessons.

Mr Trent asked the Department to provide audit reports. He also asked again about the method of calculating credits with reference to a tidal pool in Port Elizabeth.

Mr Matona responded that the audit reports were included in the reports of the Department.

Mr Trent said that it would be impossible for the Auditor-General to audit each project individually.

Mr Zikode said that the Auditor-General had begun to audit some of the individual projects, and he, Mr Zikode, thought that the swimming pool project was one of them. He continued in detail.

Mr Gerber was concerned about the exchange rate between the euro and the dollar, because it made a great difference to the relevant figures. He asked for more clarity about the figure of R3.8 billion. He asked how much of that sum had come from overseas. The concern about the arms deal was that South Africa had overpaid, and one wanted that returned to South Africa in a way that could benefit the public. One had to be honest and ask if the South African people had been taken for a ride.

Mr Matona reaffirmed that the R3.8 billion was entirely foreign money. He failed to provide a figure representing the benefits in terms of rands, offering only, as the Chairperson inferred, a ‘thumb suck’ number of jobs.

The Chairperson said that he expected Mr Matona to know the figures for the offsets ‘at the back of his hand’.

Ms de Lille said that Mr Matona was using outdated figures.

A Member from the Portfolio Committee on Defence said that the usability of imported defence equipment should be subject to monitoring. It was not enough just to be able to put on a theatrical display.

Mr Smith said that this question was outside the jurisdiction of the Committee. It was the concern of the Defence Portfolio Committee which should be advised by this Committee to conduct an exercise similar to this Committee’s endeavour. In this regard Mr Smith supported Mr Matona in his earlier reply regarding the Department’s understanding of the terms of the Committee’s invitation as being confined to the financial implications, checks and balances. Mr Smith thought that the Committee had conflated the issue under discussion to the possible disadvantage of Mr Matona. In the final analysis, this Committee would be held accountable for its handling of matters that were its responsibility.

The Chairperson asked that the engagement be concluded; although many more questions might be asked, the Committee lacked ‘the commodity of time’. The essence of the Committee’s concern was that companies which supplied arms fulfilled their obligations regarding the offsets, and that the Department, on behalf of Government and on the country’s behalf, was rigorously ensuring full compliance with the contractual obligations of those companies. Thanking the Department, the Chairperson said that the objective remained, as always, the exchange of information, and Parliament always relied on the Department for information and clarity. 

ARMSCOR
The Chairperson said that the same applied to ARMSCOR, since this involved industrial participation, but the difference was the area, since this was defence. One would remember that Mr Koornhof had asked a question as to what had been accomplished, and what remained outstanding, and whether these aims would be met, how long it would take, and by what means.

Mr Sipho Thomo, Chief Executive Officer of ARMSCOR, said that with regard to the issue of the DIP commitments from obligors, the original commitment was R15 billion.

From this the Chairperson inferred that there was a firm commitment from ARMSCOR to a figure of R15 billion.

Mr Thomo said that ARMSCOR had to monitor the plans of the obligors to ensure that they delivered accordingly.

The Chairperson inferred that it was not a commitment first followed by planning later.

Mr Thomo confirmed the Chairperson’s inference: there had indeed been a commitment and a plan.

The Chairperson said that perhaps it was a pity that the Committee had not begun its day’s interaction with ARMSCOR, for thus matters might have become much clearer.

Mr Thomo said that to date delivery had been to a level of R12.5 billion. That represented about 83% of delivery.

Mr Thomo said that the contracts would end about 2011 or 2012. By that time ARMSCOR expected that the remaining 17% would have been discharged.

Mr Koornhof asked how confident one could be that the remaining 17% would be discharged.

Mr Koornhof added that he was well pleased with the written response of ARMSCOR which fully concurred with the written response received from the Department of Defence; one could not express the same satisfaction with the submissions and answers from the previous respondents.

The Chairperson agreed that the Department of Defence had given the most comprehensive of all the responses.

The Chairperson added that ARMSCOR had also given a comprehensive report regarding matters arising from the JIT report; it was only on matters concerning the DIP that the Committee needed clarity from ARMSCOR.

Mr Thomo said that he was very confident that the 17% would be discharged. Furthermore, with regard to the DIP, companies that had discharged their obligations put in further claims, so that, if they became involved in supplying arms in future, they already had credits in the bank.

The Chairperson remarked that it was noteworthy that the companies mentioned here were willing to go beyond their obligations, in the hope of obtaining business in future, whereas the companies mentioned in the Department of Trade and Industry’s responses had to be given inducements. ‘The contrast is just too conspicuous to ignore.’

Mr Thomo explained why some companies would want to be proactive in banking credits. What the obligors in the general economy sought to do was to discharge their obligations in a manner as painless as possible to themselves. They would therefore opt for very easy and quick projects. But if one wanted them to invest in certain unattractive areas, one needed to give them inducements.

In answer to a question from Mr Koornhof, Mr Thomo said that ARMSCOR had had a skills-related problem in a certain project. ARMSCOR had given the Defence Committee a report.

Mr Trent asked if ARMSCOR’’s projects had been audited. He then read out five questions on the DIP.

Mr Thomo said that ARMSCOR evaluated the programmes submitted by the obligors to see if the credits that the obligors were claiming could actually be claimed, in terms of a system possessed by ARMSCOR. The Auditor-General audited these every other year. The results were included in ARMSCOR’s audit report. Thus ARMSCOR’s report had a special section that dealt with the arms procurement packages, or the arms deal.

Mr Thomo said that ARMSCOR had prepared a report that answered Mr Trent’s five questions, and this could be had at the end of the meeting. He added that fortunately ARMSCOR was not involved with multipliers. ‘It’s a one on one.’

Mr Shah asked if fluctuations in the exchange rate had been taken into account with regard to the figure of R12.5 billion.

Ms B Potgieter, Senior Manager, ARMSCOR, said that one needed to understand that the contracts were drawn up in a foreign currency. It was only converted to rands for reporting purposes, which meant that as the rand weakened, ‘they needed to do more work’ in order to achieve the same dollar obligation. ARMSCOR had decided to work to a base value, according to the acquisitions contract.

Mr Shah asked a further, detailed, question on the particular programmes, to which Ms Potgieter responded.

Mr Smith asked about the contingent liability to South Africa, occasioned by overseas suppliers doing more than they were asked to do in order to obtain positive credits in the bank. If it ever happened that South Africa did not ever do business with that company again, it had to be asked whether that company could subsequently claim back those credits. 

Moreover, Mr Smith sought to ascertain the risks that positive credits could be used to manipulate South Africa.

Mr Thomo responded that the positive credits were entirely at the foreign contractor’s risk. The contractor could not return later and claim that South Africa owed it anything. Manipulation was not remotely possible. In assessing contractors, ARMSCOR examined technical capability, competitive pricing, and existence of a proposal to address the DIP.

The Chairperson overruled a question from Mr Trent on Mr Richard Young’s submission, since the Committee was not discussing that subject at this time. In any case, the Committee had written to Mr Young, and this one outstanding matter would be in the hands of the administrative staff to be taken forward by the future Committee. The Chairperson had not sensed that the morning’s interactions should be expected to lead to a report to Parliament, ‘since it was merely an attempt to check on progress in implementing some of the resolutions that we have made.’ Other than that, he did not think there was any need to bequeath recommendations to the future Committee.

Mr Trent disagreed.

A Member objected to Mr Trent’s raising a question that should be handled by the Committee in a closed session, not in front of the visitors.

The Chairperson ruled that he had disposed of the matter and was about to close the meeting.

The Chairperson thanked Mr Thomo and Ms Potgieter and said that he valued their patience and contribution to what had been a very long meeting. He repeated that essentially the Committee sought information so that it could understand and appreciate what was being done in executing its oversight responsibilities as a Committee of Parliament, in interface with the executive arm of the state.

Conclusion
In this the final meeting of SCOPA in the Third Parliament, Mr Bekker paid tribute to the Chairperson’s most capable manner in which he had fulfilled his role. Ms N Hlangwana (ANC) expressed the ANC’s appreciation of the Committee’s work, in holding all the governmental departments accountable in Parliament. Mr Trent said that the Democratic Alliance had enjoyed serving on the Committee; he believed that much of the work that had been done had been very positive and gratifying, and that this work would be reflected in better performance from the departments. Although there had been differences he had enjoyed working with Members of other parties on a one-to-one basis. He hoped that some Members would return to serve on the new Committee because it needed to have continuity. The Chairperson expressed his deepest thanks to Members for their efforts to live up to Parliament’s expectations in executing the Committee’s responsibilities and wished them well.

The meeting was adjourned.