Digital Vibes contract investigation: Department briefing
04 June 2021
Chairperson: Dr S Dhlomo (ANC)
Meeting Summary
Video: Portfolio Committee on Health, 04 June 2021
Question NW2940 to the Minister of Health
In a virtual meeting, the Department of Health provided an update on the investigation into the awarding of the Digital Vibes contract.
The Director-General presented the briefing in lieu of the Minister, who had received legal advice not to appear before the Committee. However, because the Director-General was also named in the newly opened criminal case on the matter, he too had received legal advice not to speak openly on the matter. This limited the depth and scope of the Department’s report.
The Department reported that it had commenced an internal investigation into the Digital Vibes contract after the Auditor-General had flagged it as troublesome at the end of 2020. The Department had thus appointed a forensic firm to investigate before the matter became subject to media scrutiny and to investigation by the Special Investigating Unit (SIU). The report of the forensic firm’s internal investigation was complete, and it found that the awarding of the Digital Vibes contract had been irregular. However, the SIU had been collaborating with the forensic firm in its own investigation. The forensic firm’s report now formed part of the SIU investigation, so it could not be publicised until the SIU report was finalised. Furthermore, the Department had decided not to implement the recommendations of the forensic firm’s report until the SIU corroborated them. In the meantime, the Department was cooperating fully with the SIU investigation.
The ANC agreed that the Minister and other officials could not be expected to make a full report on the matter if doing so endangered their constitutional right to a fair trial. Apart from the fact that the SIU report was not finalised, the DA had that week opened a criminal case against the Minister and the Director-General in relation to the Digital Vibes matter. This meant that the matter was sub judice. The Committee would receive answers to its questions at a more appropriate time.
The DA, EFF, and FF+ objected strenuously to this view, and were frustrated by the Minister’s absence and especially by the Department’s report. They argued that the matter was not sub judice, and that, in any case, the Department could report on its internal processes and on the Auditor-General’s findings, insofar as these were distinct from the SIU and police investigations. The DA and EFF accused the ANC of using the sub judice rule to make excuses for the Department. The DA also argued that the opening of a criminal case did not constitute any decisive limitation on the Department, since the matter had already been under SIU investigation before the criminal investigation began.
The DA, EFF, FF+, and IFP maintained that the Committee was entitled to a full report from the Department, and suggested that legal advice should be sought to confirm the powers of Parliament in this regard. They were concerned that the Department’s reticence undermined accountability and disabled the Committee in its oversight role.
The EFF called for the Minister’s resignation and alleged that the Committee had previously protected the Department from accountability by removing EFF Members from Committee meetings.
Meeting report
The Chairperson reminded Members that the Committee meeting constituted a meeting of the National Assembly (NA) for official purposes. Thus NA rules, including the rules of debate, and as well as the rules for virtual sittings, applied. Members enjoyed the same powers and privileges as in a sitting of the NA. Anything said during the meeting was considered to have been said before the NA and could be ruled upon accordingly. All Members should mute their microphones unless recognised by the Chairperson, and should refrain from making unnecessary points of order or interjections.
Attendance by the Ministry/Department
The Chairperson said that he was in touch with the Minister of Health, Dr Zweli Mkhize. They had spoken the night before, when Minister Mkhize had said that he had received legal advice not to lead the briefing about the Digital Vibes contract in the current meeting. For him to do so would be inappropriate, because the ongoing investigation in the Department of Health involved him personally. The Chairperson had accepted this and had asked for the Department’s Director-General (DG) to lead the briefing instead.
Mr T Munyai (ANC) spoke on behalf of the ANC. He said that the Digital Vibes matter, the subject of the meeting, had been brought before the courts by the DA when Ms S Gwarube (DA) had opened a criminal case in Cape Town the previous day. The matter was therefore sub judice. The DG was included in that criminal case, so anything he said to the Committee could be used against him in a court of law. Moreover, the report of the Special Investigating Unit (SIU) into the matter remained “inconclusive.” Therefore, the Ministry could not report on the matter.
The Chairperson said he thought the DG would be “circumspect” in his briefing and would raise any such concerns himself. He asked whether the DG shared the ANC’s concerns.
Dr K Jacobs (ANC) said that the DG did not appear to be present.
Ms Gwarube acknowledged Mr Munyai’s point, but said there were two issues that were important to note. First, matters were sub judice when they were before a court of law. The Digital Vibes matter was being investigated by the SIU and by the South African Police Service (SAPS), but it was not before a court of law, so the sub judice rule was not applicable. Second, apart from the news reports about the Digital Vibes contract, an entity within the Department had done its own report. The DG had also obtained a legal opinion about whether it had been appropriate for Minister Mkhize to sign the contract, if he did indeed sign the contract, and the Auditor-General (AG) had made a declaration about the contract’s irregularity. These alone gave the Committee enough to discuss. The Committee was not discussing the outcomes of the SIU report, but rather was discussing outcomes that the Department already knew of and which had already come to light. Therefore, it was not true that the matters under discussion had not been concluded. The SAPS and SIU investigations, which were incomplete, were separate from what the Committee was discussing. In the current meeting, the Committee was concerned with what the Department had already revealed publicly and with the status of the Department’s internal investigations.
The Chairperson said that, in his understanding, the Committee would accept Minister Mkhize’s absence, but the DG would brief the Committee on the issues raised by Ms Gwarube. Last week there had been a media briefing in which Minister Mkhize had alluded to the internal report, so the Committee wanted to hear about that.
Mr P Van Staden (FF+) agreed with Ms Gwarube. The matter was not before the courts, so the Committee could discuss it. The DG had to inform the Committee about the current status of the case, its “flow,” and what would happen next. He suggested that if Members could not agree on a way forward they could seek advice from parliamentary legal services.
The Chairperson asked the Committee secretariat to find out whether there was a legal adviser available to consult with him.
Ms N Chirwa (EFF) said that the proceedings of the meeting thus far showed “dishonesty.” Last year, the EFF had already called for Minister Mkhize to resign. He had said that part of the reason for his refusal to resign was that he had no link to alleged Digital Vibes corruption. So it was important for the Committee to discuss any report relating to the alleged corruption. The Committee had often discussed allegations of corruption pertaining to other cases, entities, and provinces. It could not condone the implication that it could no longer do its job simply because this time the allegations pertained to Minister Mkhize. The DG had to provide an explanation, or at least had to “engage” with the Committee in his capacity as DG. The Committee could not be “held at ransom,” with the Committee and the DG unable to perform their duties simply because Minister Mkhize was implicated. The Committee must continue to interrogate the matter. If Minister Mkhize and the DG sought to protect Minister Mkhize, they should vacate their offices. South Africa could not be “held at ransom” because two people did not want to “entangle themselves in lies.” In fact, they had already done so – the EFF had previously challenged the Department’s delegations for lying to and misleading the Committee.
She said that the Digital Vibes matter was not before a court of law, and so had to be interrogated by the Committee. The “excuse” that the Department was awaiting the SIU report did not “hold water.” The Department had previously answered questions about matters under investigation by the SIU – why had the principle changed in this case? The SIU report was being used to excuse the Department’s silence and “inactivity.” The Committee had not condoned such behaviour in the past and could not condone it now, just because Minister Mkhize was implicated. Minister Mkhize was not “special.” The Department was obligated to brief the Committee and to respond to Members’ questions – unless perhaps the matter in question was before a court of law, which this matter was not. It was a matter of national importance, and the people wanted information. Part of Members’ duties was to hold the executive accountable and to provide oversight over departments. The Committee should proceed as it always had, without Members allowing their party-political affiliations to “bias” them. The Committee could not neglect its duties just because the DG did not want to fulfil his duty.
The Chairperson said that he was still waiting to hear whether the DG would be present.
Ms E Wilson (DA) said that the Chairperson had begun the discussion by saying that Minister Mkhize, on legal advice, felt it would be inappropriate for him to brief the Committee. The DG would therefore do the briefing instead. The Chairperson had not said that Minister felt it was inappropriate for him to brief the Committee because the matter was sub judice. The matter was not sub judice – it was not being heard before a court. The DG had agreed to brief the Committee, and had made public statements on the matter, precisely because the matter was not sub judice. Members should remember that the Committee was not accountable to the Minister or to the DG – the Minister and the DG were accountable to the Committee. The Committee was entitled to responses about the DG’s statements and about his opinion on the handling of the matter. The Committee must hear the report today.
Mr Munyai said that the ANC’s stance on corruption was publicly known. Whatever ANC Members said should not be used to imply that the ANC was not opposed to corruption, because it was.
Ms Wilson interrupted with a point of order. All Members were opposed to corruption. They were in a Committee meeting, not a party-political meeting. The purpose was to get answers for all Members.
The Chairperson replied that Ms Wilson’s point was not a point of order. Mr Munyai was expressing one party’s opposition to corruption. Other Members could do the same when they had the opportunity to speak.
Mr M Sokatsha (ANC) said that if everyone behaved as Ms Wilson had, it would disrupt the meeting. Members should agree to give everyone a chance to speak.
The Chairperson thanked Mr Sokatsha for his support but said that he was still the Chairperson.
Mr Munyai repeated that the ANC was against corruption, and its stance in the meeting should not be taken to suggest otherwise. He did not want to argue about “legal nuances” in the Committee. That would not be constructive – Members were not lawyers. But the DG had the same legal rights as Minister Mkhize, including the right not to incriminate himself. The DG was not present and he was probably afraid that what he said to the Committee could be used against him in a court of law. The Committee could argue ad infinitum about whether the matter was before a court, but once a case was reported to SAPS, SAPS had a mandate to take the case to court.
The Chairperson said that such concerns could be left for the DG to raise himself. He had heard that the DG had had difficulties connecting, but Members should note that he would join the meeting soon.
Dr S Thembekwayo (EFF) said that the agenda of the meeting was as stipulated. The Committee did not have to waste time – Members had spent twenty minutes arguing, which had delayed the briefing. The purpose of the meeting was clear from the agenda. She agreed with Ms Chirwa that the DG should brief the Committee. President Ramaphosa had not provided “answers” in his address to Parliament before the Presidency budget vote. In addition, whatever else the DG said, he should end his briefing by announcing that Minister Mkhize was resigning.
The Chairperson replied [in Zulu 23.40-23.53].
Ms A Gela (ANC) said that the DG was present and was going to brief the Committee. She fully agreed with Mr Munyai. The matter was being investigated by SAPS and by the SIU – even the President had said that he was waiting for the SIU to conclude its investigation. The Committee had to “wait for the right time.” The DG should report on whatever he could, but a full report would come in time. The Committee was not above the law. Mr Munyai was correct that the ANC was against corruption.
The Chairperson noted that Ms Gela had referred to Mr Munyai as “comrade,” and said that this was not the correct form of address in a Committee meeting.
Ms Gela acknowledged the Chairperson’s correction and repeated that she fully agreed with Mr Munyai. The Committee would continue to do its work, despite the challenges, because it was here to serve the people.
Mr Sokatsha said that Members should not “make an issue out of a non-issue.” The DG was present. He thanked the Chairperson for calling the meeting to ensure that Members were not denied the chance to discuss the Digital Vibes matter. Nobody was denying Members that chance – Mr Munyai had only been raising the legal implications and an issue of “principle.”
Mr Sokatsha noted that Ms Chirwa had said that “we” had called for Minister Mkhize’s resignation. He asked who she was referring to – the Committee had never taken such a decision.
Ms Chirwa replied that she had clearly been referring to the EFF.
Mr Sokatsha apologised for misunderstanding.
Ms Chirwa said that the EFF called for Minister Mkhize to resign, because people were being paid millions of rands to take photographs. She knew she might be removed from the meeting, as she had been in previous meetings. She said to Mr Sokatsha, “If you are going to come at me sideways, come correct.”
The Chairperson reminded Ms Chirwa that she should not speak unless he recognised her.
Mr Sokatsha said that he had apologised, so he was not sure why Ms Chirwa had pursued the point. He had not known who she had meant by “we” and had thought she was referring to the Committee. He had been confused by her phrasing, she had explained it, and he had apologised. His initial point had been to thank the Chairperson, to urge Members to move onto the briefing, and to note that nobody was being prevented from discussing the Digital Vibes matter.
Ms H Ismail (DA) said that it was concerning when such issues were raised immediately before a scheduled briefing, especially since the current meeting was rushed because Members had to attend a plenary sitting later. She agreed with Ms Gwarube and Ms Wilson that the Digital Vibes matter was not sub judice. The DA fully understood the law and the relevant legal processes. The Committee was entitled to receive the report from the Department – they should have received it long ago.
She added, for the record, that the DA was and always had been against corruption, as people throughout the country already knew. There had only been so much discussion about the current issue because of the point raised by Mr Munyai. If the ANC was against corruption, why was it trying to block discussion of the Digital Vibes matter? Members had all joined the meeting, with a full day ahead of them, because they knew they represented the country’s citizens. They all had a right to be in the meeting as elected representatives. The DG was present and the Committee should hear his report.
Dr Jacobs said that the Chairperson had called the meeting because he had known that the Committee needed to be briefed in order to get an understanding of the Digital Vibes matter. Members were grateful to him – he had not been “silent” on the matter. Though in his capacity as Chairperson the Chairperson represented the Committee, not the ANC, it was important to note that the ANC Chairperson had called the meeting. Since the EFF and the DA had referred to their own parties, it should be noted that the ANC had brought the Digital Vibes matter before the Committee.
Ms Ismail interrupted with a point of clarity.
The Chairperson replied that he did not recognise points of clarity.
Ms Ismail raised a point of order. Dr Jacobs had said that the EFF and DA had referred to their parties. On behalf of the DA, she wanted to clarify that Mr Munyai had done this first, in speaking on behalf of the ANC.
The Chairperson acknowledged Ms Ismail’s point and reminded Dr Jacobs that he should have included the ANC.
Dr Jacobs, returning to his initial point, said that the ANC supported what Mr Munyai had said. The Digital Vibes matter was sub judice, and answers would be given in the future. President Ramaphosa had said clearly that he was awaiting the outcome of the SIU investigation. Members should keep that in mind, and they should also keep in mind the impact – including the impact on future investigations – of discussing the matter in too much depth in the Committee.
To recap the purpose of the meeting, the Chairperson said that about three weeks ago the Digital Vibes matter had arisen in a Committee meeting. At that time, Minister Mkhize had said that there were ongoing investigations, with which the Department was complying and which it was supporting. Last week, in a media release, Minister Mkhize had said that a report had been completed, and that the report referred to irregular appointments and irregular expenditure, including fruitless and wasteful expenditure. Minister Mkhize had said that he would not join the current meeting, based on legal advice and because the ongoing investigations implicated him. The briefing had therefore been delegated to the DG. Members seemed to accept that decision.
Briefing by Department of Health: Investigation into the awarding of the Digital Vibes contract, processes followed and actions taken thus far
Dr Sandile Buthelezi, DG, Department of Health, apologised for joining the meeting late – there was loadshedding. He noted that the Chairperson had already communicated the Minister’s apologies for not attending the meeting. It was public knowledge that the Digital Vibes matter was now under consideration by law enforcement agencies. Dr Buthelezi was himself directly implicated in the criminal case that had been opened the day before. This made it very difficult for him to go into details about the matter.
Dr Buthelezi said that he had joined the Department in 2020. Towards the end of 2020, the AG had presented its report to the Department, and had raised several issues which it had wanted the accounting officer to investigate further. One of those issues was the Digital Vibes matter, but the AG had also raised other matters. He would not dwell on the other matters, because they were not on the agenda for the current meeting. After the AG’s report, the Department had appointed several forensic firms to conduct investigations into the Digital Vibes matter and the other matters. While the forensic investigations were underway, the Digital Vibes matter became subject to media scrutiny. The SIU had thereafter begun investigating the Digital Vibes matter. On 23 February, the SIU had contacted him about the Digital Vibes contract. He had informed the SIU in writing that the Department was already conducting an investigation. However, the SIU had said that it would continue to investigate, as per its proclamation as signed by the President.
The SIU had asked Dr Buthelezi to refer it to the forensic firm that the Department had contracted to investigate the Digital Vibes matter, so that the SIU could collaborate with the firm and avoid duplicating its work. Dr Buthelezi did so, and the SIU began working with the forensic firm on the investigation. Under its proclamation, the SIU had extensive powers which exceeded those of the forensic firm. Of course, the SIU interviewed Department officials, requested documents through Dr Buthelezi’s office, and on two occasions met individually with Dr Buthelezi in his capacity as accounting officer.
The Department, as a client of the forensic firm, had received a draft report and then a final report from the forensic firm. He had provided that report to the SIU, and Minister Mkhize had provided it to President Ramaphosa. However, the SIU was still working on the report of the forensic firm – the forensic firm’s report now formed part of the SIU’s investigation. So, although the forensic report was final on “administrative matters,” it was not really a final report, especially not for the purposes of implementation. The Department had to wait for the SIU’s findings before implementing the recommendations of the forensic firm’s report. For example, the forensic firm might recommend that there was some money to be recovered, and Dr Buthelezi could go ahead and attempt to recover that amount. But the forensic firm did not have the powers that the SIU had, so it might not have recorded the correct amount. The SIU had extensive powers, including in relation to bank accounts, which the forensic investigators lacked.
The Department had therefore decided that it was “not going to do much” until the SIU report was finalised. Thereafter, the SIU would guide the Department on the next steps for implementation. The Department would then be able to fully implement the recommendations, rather than implementing them piecemeal. The report was not currently considered final, because the SIU had not completed its investigation. As Minister Mkhize had said publicly, the report confirmed that the awarding of the Digital Vibes contract had been irregular – but there were some other pieces to be finalised.
Dr Buthelezi said that another issue was that the matter had now been formally reported to SAPS. He had been advised by the Department’s attorneys to refrain from commenting on the report, except to say that it was with the SIU. Once the report had been finalised by the SIU, the Department could move ahead with internal disciplinary processes and other steps.
Discussion
The Chairperson noted that, as Dr Buthelezi had said, the criminal case opened in Cape Town yesterday constituted another limitation on his “open participation” in discussion about the Digital Vibes matter.
Ms Gwarube said that, in her understanding, the Committee – as was usual in its oversight work – had invited the Department to present its internal report on the Digital Vibes matter, presumably including the AG’s related findings. The Department had accepted that invitation, and the Chairperson had allowed Dr Buthelezi to present in the Minister’s place. While she accepted Dr Buthelezi’s explanation that the forensic report now formed part of the SIU investigation, there were other issues to be discussed around the details of the awarding of the contract. She was particularly interested in hearing what flags the AG had raised with the Department regarding the contract. If she understood correctly, the AG’s findings were very different to the Department’s internal investigation. So what were the issues had the AG flagged as problematic? It was important to discuss this, or the meeting would simply be an occasion for Dr Buthelezi to tell Members that he could not tell Members anything.
She said that it was absolutely false that the criminal charges laid in Cape Town the day before somehow created a limitation on Dr Buthelezi’s ability to account to the Committee. She wanted Members to acquaint themselves with the sub judice rule, which in this case provided no reason for the Department not to account to the Committee. A matter reported to SAPS, like a matter reported to the SIU, was not sub judice – it was not before a court of law. The definition of “sub judice” was very clear. Reporting a matter to SAPS was similar to reporting it to the SIU. If Dr Buthelezi had initially accepted the invitation to brief the Committee, the criminal charges should not be used as an “excuse” for not saying more.
Mr Munyai said that he welcomed the update from Dr Buthelezi, and he welcomed the legal guidance that the Department’s attorneys had provided. It was “helpful” to hear that the attorneys had advised Dr Buthelezi against saying more. People should not rush “helter-skelter” to the courts tomorrow to open a case without evidence, hoping that through Dr Buthelezi they would get evidence to support their case or their “political ends.” He supported the Department’s report and wanted the Committee to “adopt” it.
Mr Van Staden said that the Committee had to be honest with itself. What were the powers of the Committee in relation to this case and to other such cases? The Committee could not just sit without getting any clarity, asking questions but receiving no answers from government officials. He agreed with other Members that the matter was not sub judice, because it was not yet before a court of law. The Committee had to be privy to every available piece of information, so that it could fulfil its responsibilities and use its powers. Minister Mkhize and the Department had to respond honestly to the questions and allegations about the Digital Vibes contract and the seemingly irregular appointments made in the Department. He urged Minister Mkhize to “step up,” be honest, and provide clarity on the matter before the SIU issued its final report at the end of June. The same applied to officials of the Department. The SIU’s report could have serious implications for both the Minister and the Department. The Committee needed to know what was going on. Ms Gwarube was correct that it needed to know more about the AG’s report.
Ms Wilson reiterated that the matter was not sub judice at the current stage, and that Minister Mkhize and Dr Buthelezi were accountable to the Committee. Members had to keep in mind that they, in turn, were accountable to the people of South Africa by whom they had been elected, and those people were entitled to answers. She asked Dr Buthelezi how the Digital Vibes contract had been funded. She had written to Minister Mkhize several months ago and, in his response, he had clearly stated that the Digital Vibes contract had been funded by a deviation from the budget. Members knew that the contract had been irregularly awarded. But had it been funded through a budget deviation? She was concerned because she would object to being misled by Minister Mkhize. She also had another issue to raise but it concerned other health-related corruption, so she would wait until another meeting.
Mr Sokatsha reiterated that he was thankful to the Chairperson for calling the meeting to ensure that the Committee was informed about the contract and that nobody was prevented from discussing it. Dr Buthelezi had clearly outlined the limitations that he was operating within due to the involvement of law enforcement agencies. All Members understood the sub judice rule, but the reality was that the case was under investigation, meaning that anything a party said could be held against him. Dr Buthelezi had said that the forensic investigation had found that the tender was irregular. He was satisfied with that information. He thought that the Committee should let the SIU continue its investigation and should wait for the outcome.
Dr Thembekwayo said that she was disappointed with the briefing. She had thought that the DG would give Members more information, and she had not heard what she had expected to hear. Members were not interested, for example, in complications around the forensic firm’s recommendations for the recovery of funds. What Members wanted to know was clearly indicated by the agenda, which referred to “the investigation into the awarding of the Digital Vibes contract, processes followed and actions taken thus far.” The briefing had not explicitly covered those issues. Moreover, the Minister was “part and parcel” of the Digital Vibes matter. She had expected Dr Buthelezi to report that the Minister was resigning because of his involvement in the matter. Why was the ANC’s step-aside rule not applied here? She was not convinced, and she thought the Committee had wasted an hour.
Ms Gela said, on the step-aside rule, [made remarks in Zulu 55.32-55.36] –…. it did not concern Dr Thembekwayo.
Dr Thembekwayo told Ms Gela to “shut up.” She had been addressing Dr Buthelezi, not Ms Gela.
Dr Thembekwayo and Ms Gela argued.
The Chairperson reminded Dr Thembekwayo not to speak unless he recognised her.
Dr Thembekwayo raised a point of order, and then lost connection.
Ms Gela thanked the Chairperson for convening the meeting and requesting the briefing on behalf of the Committee. Members now understood the status of the matter, and they understood, as Dr Buthelezi had said, that the report was now with the SIU. Members should respect that and “leave the matter,” since it was still under investigation. They should wait for the Chairperson to reconvene the Committee at “the right time.” Dr Buthelezi did not have to answer Members’ questions now.
Dr Thembekwayo said that Ms Gela had “no right to say that.”
Ms Wilson, Dr Thembekwayo, Mr Van Staden, and Mr Munyai simultaneously raised points of order.
The Chairperson said that Members could not raise so many points of order.
Mr Van Staden replied that they could.
Ms Wilson, on a point of order, said that Ms Gela had “no right to dictate” what questions Dr Buthelezi did or did not have to answer. She objected. Ms Gela was out of order. She was not chairing the meeting, and she did not have the right to say that Dr Buthelezi did not have to answer Members’ questions.
Mr Sokatsha raised a point of order. It was the Chairperson’s role to decide who was out of order.
Dr Thembekwayo stated that Mr Sokatsha should not speak yet, because the Chairperson had not recognised him.
The Chairperson asked Ms Gela to withdraw her statement about the DG not needing to answer Members’ questions.
Ms Gela withdrew her point. However, she said that she had merely been acknowledging what Dr Buthelezi had said in his briefing.
Mr Munyai raised a point of order. According to the guidelines the Chairperson had referred to at the beginning of the meeting, any Member could express his or her views in the meeting. Ms Gela’s point should be regarded as her view.
The Chairperson said that he had already ruled on that issue. He had asked Ms Gela to withdraw the point and she had done so.
Ms Chirwa said that the right to remain silent was for accused persons during a criminal trial or other criminal proceedings. It was not relevant here. Also, Mr Van Staden had asked for a legal adviser to join the meeting. Members needed an update on that, because they were being “rendered useless.” The meeting justified the EFF’s call for Minister Mkhize to resign. Obviously, he and Dr Buthelezi could no longer do their jobs. In previous meetings, the EFF had consistently demanded accountability around Digital Vibes and PPE corruption, as mentioned in the AG’s report. The Committee had “silenced” them in various ways, including by removing Members from the virtual platform, in order to protect Minister Mkhize and the Department. Minister Mkhize was “unable to fulfil his constitutional obligations” to account to the Committee. He was unable to do media interviews or even to engage his constituency. That had also affected other Members – who were not involved in corruption scandals, and who had not paid people millions of rands to photograph them – and it affected the Committee’s ability to do its job. Why continue the meeting if Minister Mkhize and Dr Buthelezi were unable to do their jobs, and if the Committee as a result could not do its job? South Africa could not be “held at ransom” by the “criminal dealings” of Ministers and the executive, who as a result could not fulfil their obligations and be available for parliamentary processes in the interests of accountability.
The Chairperson said that, according to parliamentary rules, Ms Chirwa had to substantiate her allegations of “criminal dealings” with a motion.
Ms Chirwa asked whether she could not be allowed to speak.
The Chairperson [made remarks in Zulu 1.02.55-1.03.59].
Ms Chirwa stated that she was a Member of the Committee and should be allowed to express her views.
The Chairperson replied that the rules disallowed her from making such “sweeping statements” about Ministers without a substantive motion.
Ms Chirwa asked whether the Chairperson was referring to the “assertion of criminal dealings.”
The Chairperson replied that these could be unproven allegations.
Ms Chirwa said that she was talking about the AG’s report. In a situation in which contracts were awarded irregularly, undeserving people were given contracts, processes were not followed, and money was “squandered” as a result, the discussion should not be cordial. The situation was “criminal.” Members could not “silence” themselves and refrain from being “emotive” because it made the Chairperson or other Members “uncomfortable.” The AG had briefed the Committee, and Members had agreed to a decision.
Dr Jacobs interrupted with a point of order. As the Chairperson had alluded to, parliamentary rules required that Members had to substantiate allegations of criminal activity with a motion. Otherwise, Ms Chirwa should withdraw her statement.
The Chairperson told Ms Chirwa that she should not refer to “criminal” acts. She was not a lawyer or a criminologist.
Ms Chirwa replied that if it made the Chairperson feel better, she would refer to “corruption” – to “corrupt dealings” by Minister Mkhize and the Department in relation to Digital Vibes and PPE.
The Chairperson said that Ms Chirwa had to use “parliamentary language.”
Ms Chirwa interrupted to ask why ANC Members could talk about corruption, while she was prohibited from using the word. The relevant officials were being investigated for corruption.
The Chairperson replied that, according to the basic rules of Parliament, one kept quiet when the Chairperson was speaking. Moreover, in Parliament, one referred to “alleged corruption” by a Minister, unless one had a motion, because one had not proven the allegation – otherwise, one withdrew the statement. Alleged corruption still had to be proven by a court of law or otherwise. Ms Chirwa knew that this was the language used in Parliament.
Ms Chirwa said that the Committee was not doing its work. The AG’s report had said that the Committee was “complicit” in what was happening at the Department, because the Committee failed to hold the executive accountable. Now the Committee wanted to “silence” the word “corruption,” a word which had been used many times before in the Committee. She would refer to “alleged corruption” instead, but that would not change the fact that Minister Mkhize and Dr Buthelezi could not speak openly to the Committee because they were being investigated for corruption.
Mr Sokatsha interrupted with a point of order.
Ms Chirwa said that because the Minister and DG could not speak openly to the Committee, there was effectively no meeting. Why should the meeting continue when Members could not do their jobs?
On a point of order, Mr Sokatsha said that “time and again” the Chairperson had to call Ms Chirwa to order. Ms Chirwa spoke as though “falling from a tree,” “blaming everybody.”
Dr Thembekwayo raised a point of order.
Mr Sokatsha noted that Ms Chirwa said that the Committee was not holding the executive to account and was not fulfilling its duties. But Ms Chirwa, like all Members, was part of the Committee. That the Chairperson had called the current meeting clearly indicated that he knew his responsibilities. Ms Chirwa should not speak as though she was “falling from a tree.”
Dr Thembekwayo repeated that she had a point of order.
The Chairperson told Dr Thembekwayo that she could not raise a point of order about another Member’s point of order.
Dr Thembekwayo asked Mr Sokatsha to withdraw what he had said about Ms Chirwa “falling from a tree.” That could not be said about a Member of the Committee.
The Chairperson asked Mr Sokatsha whether he had used that phrase.
Ms Chirwa and Dr Thembekwayo said that he had used the phrase twice.
Mr Van Staden asked the Chairperson to restore order to the meeting.
The Chairperson told Ms Chirwa and Dr Thembekwayo that he was asking Mr Sokatsha to clarify what he had said.
Mr Sokatsha said that he had used the phrase “falling from a tree,” but he would withdraw it. His point had been that Ms Chirwa was “blaming everybody” as though she was not herself a part of the Committee.
Ms Chirwa said Mr Sokatsha’s point was important. On three occasions, she had been removed from Committee meetings, with other Members watching. To that extent, it was effectively true that she had not been a part of the Committee – she had not been a part of those meetings because she had been removed for trying to hold Minister Mkhize and the Department accountable. This had happened even before the SIU investigation had begun, in 2020. At that time, she had already asked the Minister why he was “paying people to take pictures” of him – at that time, the figure had been R82 million, not the higher figure of R150 million that was currently being reported. Members should acknowledge that there was “historical context” for the current discussions.
She said that the Committee should be honest that even in the current meeting, the Committee had been “rendered useless” by the Department, by Minister Mkhize, and by Dr Buthelezi. Why had the Department not sent the Deputy Minister or another Department executive to lead the briefing? Why should the Committee be “held at ransom,” unable to engage an issue of vital national importance, just because two people were implicated in a corruption scandal? Why must the entire parliamentary process “collapse” on their account? In addition, now she was being “silenced” for not using the word “alleged.” But it was Minister Mkhize and Dr Buthelezi who were saying that they could not speak openly because they were being investigated for corruption – for a crime. A criminal case had been opened the day before, but Members were prohibited from speaking about a criminal offence. Why should Members “massage” the feelings of Department representatives? And there was “historical context”: Members, especially Ms Chirwa herself, had been “abused.”
The Chairperson asked Ms Chirwa to whom her last point was addressed.
Ms Chirwa said that the Chairperson had “on countless occasions” asked for her microphone to be muted, or for her to be removed from the meeting, when she was speaking to the Minister or the Deputy Minister. These occasions were recorded and appeared in the Committee minutes.
Mr Sokatsha interrupted that Ms Chirwa’s point was irrelevant to the current meeting.
Dr Jacobs and Ms Gela both raised points of order.
On a point of order, Dr Jacobs asked Ms Chirwa to withdraw her reference to a “criminal offence.” It was fine to refer to an “alleged criminal offence,” in connection to the criminal case Ms Gwarube had opened. He added that when a car without brakes was on a hill, it ran down the hill picking up momentum and speed.
Ms Wilson interrupted with a point of order.
Ms Chirwa also interrupted to add the word “allegedly” and to question the usefulness of Dr Jacobs’s analogy.
Mr Van Staden again asked the Chairperson to call the meeting to order. The meeting could not continue like this.
Ms Chirwa said that she had not finished speaking.
Ms Gwarube raised a point of order.
The Chairperson said that he would not take the point of order. He told Ms Chirwa that he had reminded her of the parliamentary rules and appropriate language.
Ms Chirwa said that she would add “alleged.”
The Chairperson said that he would not correct her again on that point. He asked her to wrap up her comments.
Ms Wilson and Ms Gwarube both raised points of order.
On a point of order, Ms Wilson wanted to raise two issues that she said were important to note. What was the role of the Committee and of Members as parliamentarians? Parliament could conduct its own inquiry into a matter, regardless of whether the matter was before the courts. That was a power of Parliament. By choosing to avoid appearing before the Committee, Minister Mkhize had “sent out a message.” She agreed with Ms Chirwa.
The Chairperson interrupted Ms Wilson. She was not making a point of order. He invited Ms Chirwa to continue.
Ms Chirwa said that she would not make further comments.
The Chairperson said that any Member who felt aggrieved after being removed from a meeting knew what to do. If a Member thought that he had not followed the rules in removing any Member, he or she knew the rules and procedures to follow. He would not address Ms Chirwa’s remarks in that regard. In muting Members’ microphones in the past, he had followed the rules of Parliament.
Ms Ismail said to Dr Buthelezi that Members understood his lateness – loadshedding was adversely affecting them too. She felt that the Chairperson should have approached the Committee for input before accepting Minister Mkhize’s apology for not attending the meeting. The Committee needed the Minister and the DG to address the matter. The Committee was very important in the current moment, during the COVID-19 pandemic, and the Department could not afford corruption and irregular contracts. It was “eating away” at the Department’s budget, leaving insufficient funds to carry out the Department’s mandate. It was “unnecessary,” and South Africa could not afford it. The current meeting was “so disappointing.” The meeting was “falling apart” simply because Members had taken the time to attend, only for Dr Buthelezi to tell them that he could not address certain issues.
She said that the Committee needed a full briefing from Dr Buthelezi about the AG’s report. The AG’s report said clearly that the Digital Vibes contract was overpriced and had been irregularly awarded. She also wanted Dr Buthelezi to address the allegations that Digital Vibes had charged the Department millions of rands for scheduling Minister Mkhize’s media briefings, interviews, and other public engagements related to the COVID-19 pandemic. Were these allegations true? The country needed the Department and the government to be transparent and accountable.
Ms M Hlengwa (IFP) said that Members were “very disappointed” about the AG’s report, which referred to irregular expenditure. The Committee needed clarity about the matter. The matter involved funds that were supposed to serve the people, who were “dying.” The Committee needed the truth and nothing else. People were waiting for the truth to come out and for the Committee to establish what was happening in the Department. The Committee had to serve the people of South Africa. [Additional remarks were made in Zulu 1.19.02-1.19.26]
Dr Jacobs thanked the Chairperson again for using his authority to call the meeting. He agreed with other Members that the Committee needed answers and that it needed the truth. Unfortunately, however, one Member had opened a criminal case the day before. That was the basis of the Committee’s current situation and challenges. One had to ask whether, by speaking before the Committee, a person might infringe upon his own right to a fair trial, as entrenched in section 35(3) of the Constitution. Generally, there was a “real and substantive risk” that adverse pre-trial media publicity concerning a pending criminal case would indeed violate the accused’s right to be presumed innocent, and his right to be trialed before an impartial court. Although the Committee needed answers, the situation had “shifted” the day before. Members had to be mindful of that. Now that there was a criminal case, which had been publicised, the Committee could not “force” people to appear before it.
The Chairperson said that during the meeting he had spoken to the Committee secretariat about obtaining legal advice from Parliament about some of the issues raised by Members. He had spoken to legal services, but legal services could not provide advice without having been briefed properly. So there was no way to have a legal adviser join the meeting now.
Responses
Dr Buthelezi said that the Department understood where Members’ questions and concerns came from, in terms of their oversight responsibilities over the Department. It was not the case that Members would never receive answers to their questions. Instead, it was “a matter of time.” The Department did not want to prejudice the SIU investigation, which now had precedence over its own internal investigation. As he had mentioned, there was administrative irregularity in relation to the Digital Vibes contract. The Department had begun dealing with some administrative processes, such as reporting irregular expenditure to the National Treasury, as required by the Public Finance Management Act. He wanted to assure the Committee that once the SIU report had been finalised, the Department would implement its recommendations fully and “without fear or favour.” Criminal issues would “take their own course” in terms of the Criminal Procedure Act.
He said that the AG’s report was public. He had not been aware that the Department needed to brief the Committee on the AG’s report, because he thought that Members had already seen it. Ms Wilson had mentioned a parliamentary question she had asked, which had itself been based on the AG’s report. As mentioned, one of the key issues raised by the AG about the Digital Vibes contract had been overcharging. However, the Department had heard from the SIU that this was one of the specific issues that the SIU was investigating, in addition to the irregularity of the award. The SIU was working with the figures, following money, and so on. The Department was giving them a chance to do all of this.
He said that he thought the Committee could ask the SIU for a direct briefing, if it wanted more detail. The Department did not want to prejudice the SIU investigation. The investigation also implicated some Department officials who had been involved in awarding the contract – though the contract had been awarded before he had joined the Department. The Department was pleading with the Committee to allow the SIU processes to continue. It would be better for Members to receive the SIU’s final report than for the Department to “pre-empt” some of the issues. The Department was “cooperating 100%” with the SIU. He had personally met with the SIU, as he had mentioned. Two days ago, he had discussed some matters with the SIU, and it had promised him that it was moving as fast as it could. The Department had to give the SIU time and not “rush into” anything.
Final comments from Members
The Chairperson thanked the Members who had supported his decision to call the meeting. He did not think that the Committee had wasted an hour. As the Committee responsible for overseeing the Department, it had to receive a briefing from the Department. He could not have anticipated the limitations the Department would be under in responding to Members’ questions. He respected Minister Mkhize and Dr Buthelezi’s positions, which were based on legal advice, and he wanted other Members to do the same. Dr Buthelezi had said that it was “a matter of time,” and he hoped that Dr Buthelezi would live up to this assurance, and that the matter would be attended to and brought before the Committee soon. Not all Members had gotten what they wanted out of the meeting, but there were legal constraints. For example, the Committee had heard that the matter was now with the SIU and that the Department’s internal investigation had been subsumed under the SIU’s. Members might not have wanted to hear this, but the update had at least informed them about where things stood and how soon they would be wrapped up. He would like to adjourn the meeting.
Ms Gwarube said that Members wanted to make further comments. She acknowledged what Dr Buthelezi had said, but she wanted to remind Members that they were guided by the Constitution and had an obligation not to “protect” people from accounting to the Committee. The current meeting underscored exactly what had been pointed out in the Zondo Commission: that Parliament had been complicit in state capture. In the current meeting, the same applied to the Committee, insofar as Members had not been able to “sing in unison” to make clear demands of the Department. Members had been “jostling” and “fighting political wars,” when they should have been “singing from the same song sheet.” It was disappointing that, in the current meeting, the Committee was repeating the mistakes that the fifth Parliament had made. The country would judge the Committee harshly.
The Chairperson noted that many other Members wanted to speak. He asked them to speak only for a minute, since he had been wrapping up the meeting. Some Members had said that the meeting was a waste of time, but now they wanted to prolong it.
Dr Thembekwayo clarified that it was she who had said that the meeting was a waste of time.
Ms Wilson said that she agreed with Ms Gwarube. Parliament’s role, and that of the Committee, could not be undermined. Parliament was entitled to conduct its own internal investigation. That, like oversight, was one of the crucial roles that it played. In fact, this was an oversight function. A lack of transparency sent out “a very bad signal” to the country. She repeated her question to the DG. The response to her written question had claimed that the Digital Vibes contract had been funded through a budget deviation. Was that correct? The Committee was entitled to know the answer. If she had been misled, as a Member of Parliament, she had to take further action.
The Chairperson said that Ms Wilson had spoken for over a minute.
Mr Munyai said that the Committee was not the Zondo Commission. The mandate of the Committee was clear. Irregularities in contracts fell under the AG’s remit. In addition, when a meeting was finished, the Chairperson should promptly adjourn the meeting, rather than allowing further comment from Members.
Mr Van Staden said that he was “very disappointed” with how the meeting had been conducted, and with how some Members had behaved, shouting at each other. The Committee could not work like this. It needed answers on these matters, and it needed them “yesterday.” The Committee could not carry on like this, with people coming before the Committee but failing to provide the necessary answers. What was the Committee’s role in Parliament if it did not get those answers? The Committee needed to get up to date with every detail of the Digital Vibes matter.
Mr Sokatsha said that the Committee should not put limitations on the Department and then expect the Department to jump over them. Members had put such limitations on the Department. Dr Buthelezi had indicated that he was operating “under strict parameters.”
Dr Thembekwayo said that the meeting had clearly indicated that the Committee would never be able to “talk in one voice” to bring the Department to account. Therefore, she felt that the Department “must fall.”
Ms Chirwa asked what would happen in the long-term. If the Minister and the DG could not speak once a criminal case had been opened, what happened if the case was pursued by the NPA and went to trial? Would the Committee be “held at ransom” until the case was concluded? Also, the Committee had to be honest, particularly about how Members had been “silenced” in the past months. This had happened “countless times” and all Members knew it – people had been getting “kicked out” from meetings.
The Chairperson interrupted to say that he had already addressed that point and would never take it again. Ms Chirwa should move on.
Ms Chirwa said her point was that next time, the Chairperson should not remove her from meetings because she was holding people accountable.
Ms Gela agreed with Mr Munyai that the Chairperson should have adjourned the meeting. She was also “very disappointed” with the behaviour of opposition parties in the Committee. The Chairperson always convened the Committee and Members received briefings.
Dr Thembekwayo interrupted, asking Ms Gela what right she had to be disappointed.
Ms Gela and Dr Thembekwayo argued, with Ms Gela saying that Dr Thembekwayo “must fall.”
Ms Chirwa said that Ms Gela should be disappointed with corruption, not with the opposition parties.
Ms Gela, Dr Thembekwayo, and Ms Chirwa continued to argue. Dr Thembekwayo and Ms Chirwa said that Ms Gela “must fall.”
Ms Gela said that the Committee was proud of the Department, which was doing its job “very well.”
Ms Chirwa said that the Department was “doing corruption very well.”
Ms Gela, Dr Thembekwayo, and Ms Chirwa argued again.
Dr Thembekwayo and Ms Chirwa alleged that Ms Gela was “also corrupt.”
Ms Gela said that Dr Thembekwayo and Ms Chirwa also “must fall.”
Ms Chirwa asked Ms Gela whether she was proud of the Department’s corruption.
Ms Gela thanked the Chairperson for his good work and thanked Dr Buthelezi for his briefing. It was very clear that Dr Buthelezi was “not hiding anything.” She added that the EFF “must fall.”
Dr Thembekwayo said that the ANC and Ms Gele “must fall.”
Ms Chirwa repeated that the Committee was dealing with corruption.
Mr Sokatsha said that Members were being rude.
The Chairperson asked the Committee secretariat to mute Ms Chirwa’s microphone.
Ms Chirwa interrupted with a point of order.
The Chairperson said that Ms Chirwa did not have a point of order.
Ms Chirwa objected to Ms Gela saying that the EFF “must fall,” without any intervention from the Chairperson.
Ms Gela said that Dr Thembekwayo had started it by saying that the Department “must fall.”
Dr Thembekwayo replied that Ms Gela was not the Department.
They argued again.
The Chairperson said that as Mr Van Staden had said, Members’ conduct should befit their role as parliamentarians. He had not recognised Ms Chirwa or Dr Thembekwayo, and they had not even asked to be recognised before speaking. This was not correct. Members should respect Parliament, as he had said in his opening remarks.
Dr Jacobs said that he wanted to reiterate that one Member had “jumped the gun” in laying criminal charges in relation to the Digital Vibes matter. Therefore, Minister Mkhize and Dr Buthelezi had a right to refrain from comment, to ensure that they did not infringe upon their own rights as entrenched in section 35(3) of the Constitution.
Ms Ismail agreed with Ms Gwarube. As Members of Parliament and Members of the Committee, Members were there to do oversight. She felt that Members were not being allowed to do their jobs properly. They needed accountability from the Department. She did not accept that answers would come eventually, and that the Committee should wait. Unfortunately, some things could not wait. This was urgent. The country was amid a pandemic, which was taking lives.
The Chairperson reminded Members of their listening skills. He had said earlier that he had not yet been able to brief parliamentary legal services on the issue. Members had to acknowledge this, and understand that the matter might not be within the Committee’s ambit. They had to respect the limitations, as raised by Mr Sokatsha. If the Department was concerned about limitations on what it was appropriate to tell the Committee, the Committee should respect that until they had received a legal opinion. He did not agree that the meeting had been a waste of time. The meeting had taken place and the Committee had been briefed.
The meeting was adjourned.