ATC231003: Report of the Joint Committee on Ethics and Members’ Interests on the Alleged Contravention of the Code of Ethical Conduct and Disclosure of Members’ Interests: Honourable Cedric Thomas Frolick, MP

Ethics and Members' Interest

Report of the Joint Committee on Ethics and Members’ Interests on the Alleged Contravention of the Code of Ethical Conduct and Disclosure of Members’ Interests: Honourable Cedric Thomas Frolick, MP

The Joint Committee on Ethics and Members’ Interests having considered the complaint against Honourable Cedric Thomas, MP. Reports as follows.

INTRODUCTION

On 4 May 2022 the Speaker of the National Assembly, Honourable Mapisa-Nqakula, MP referred Part 3 “Bosasa” of the Judicial Commission of Inquiry into State Capture Report (“the Report”) concerning Honourable Cedric Frolick, MP (“the Member”) to the Joint Committee on Ethics and Members’ Interests (“the Committee”).

On 9 May 2022 the Committee resolved to process the referral by the Speaker of the NA in terms of item 10. 2.2.3 of the Code of Ethical Conduct and Disclosure of Members’ Interests (“the Code”). Item 10.2.2.3 provides as follows: “The Committee acting on its own may consider any breach or alleged breach of the Code.”. The Member was duly notified and requested to provide written representations on the content on the Report.

SUMMARY OF THE COMPLAINT AS CONTAINED IN THE REPORT

AD PAGES 514 to 529 OF THE REPORT:

Mr Aggrizzi, Mr Cedric Frolick, Mr Daniel Watson, Mr Butana Khomphela, Mr Vincent Smith

BACKGROUND

Mr Frolick became acquainted with Mr Daniel Watson when he became involved in the Eastern Province Rugby Union as an advisor and later as a member of the Board. He met the other “Watson” brothers through his acquaintance with Mr Daniel Watson. Mr Aggrizi alleged that -

1. “WINNNING OVER MR SMITH”

Mr Daniel Watson introduced him to the Member when the Member and Mr Butana Khomphela visited the Bosasa premises. Mr Khomphela was the Chairperson of the Portfolio Committee on Sports and Recreation.
The reason why the Member and Mr Khomphela visited Bosasa was so that Bosasa could show case its business.
This meeting took place when Bosasa was facing severe attacks in the media in 2009.
Mr Watson told him that the Member would be instrumental in winning over Mr Vincent Smith, the Chairperson of the Portfolio Committee on Correctional Service and Justice.
During the meeting in the boardroom at Bosasa, they discussed how to deal with Mr Smith.
Mr Watson told the Member to do whatever was possible to win over Mr Smith or alternatively to move Mr Smith from the position of Chairperson of the Portfolio Committee.
Mr Watson paid the Member cash, which was in a security bag, when he was at the meeting at the Bosasa premises. He stated that he was certain the security bag contained money.
During 2010 when Bosasa was facing challenges in the light of the Report of the Special Investigating Unit (SIU) on irregularities and corruption at Bosasa, Bosasa wanted to bring a court application to stop the SIU Report from being presented to the Portfolio Committee. However, the SIU was able to present their report to the Portfolio Committee and it highlighted irregularities at Bosasa.
Mr Watson instructed him to arrange R40 000 (forty thousand rand) per month for the Member. The money would be taken by Mr Watson or Mr Valence Watson to Port Elizabeth to be given to the Member.
He saw Mr Valence Watson give the bag of money to the Member during a meeting at Mr Valence Watson’s home where they discussed how to deal with Mr Smith. The Member received a monthly benefit of R40 000 (forty thousand).
Ms Winnie Ngwenya and Mr Magashula were the people that eventually won Mr Smith over during a meeting that was held in Rivonia Road in 2011.

2. ACCOMMODATION

That the Member received accommodation at the City Lodge O.R Tambo Airport on 21 August and 22 August 2010 which was paid for by Bosasa in the amount of R2 744.28 (two thousand seven hundred forty-four rand and twenty eight cents).

3. FACILITATING A MEETING WITH MR SMITH

3.1 The Member arranged a meeting inside Parliament between Bosasa and Mr Smith. The meeting was unproductive as Mr Smith felt ambushed by the team from Bosasa, Mr Agrizzi and Mr Njenje. The Bosasa team then had lunch with the Member.

4. INTERVENING IN BOSASA LITIGTAION ON A TENDER

4.1 Bosasa decided to legally challenge the awarding of a catering contract to another two companies. The Member intervened and persuaded Mr Watson to withdraw the litigation against the Department of Correctional Services.

4.2 During a telephone call, the Member instructed that the litigation must be withdrawn.

SUMMARY OF RESPONSE BY THE MEMBER AS CONTAINED IN THE REPORT

The Member was requested to provide a reply to the compliant. The Member responded as follows: “My evidence as submitted to and testified at the Commission thus stand (sic) as my response to the letter from the Registrar. Please be assured of my co-operation in this matter.” The Member submitted his Rule 3.3 affidavit as well as the affidavit of the late Mr. Butana Khomphela to the Committee.

“WINNNING OVER MR SMITH” / ACCOMMODATION / FACILITATING A MEETING WITH MR SMITH / INTERVENING IN BOSASA LITIGATION

The Member states that-

He was not the person who suggested that a meeting be convened between Bosasa and Mr. Smith. It was the suggestion of Mr Khomphela. Mr Khomphela provided a confirmatory affidavit to the Commission.
He did not receive any cash in a security bag and states that he was in the company of Mr Komphela the entire time.
The Member denies receiving R40 000 per month.
The accommodation which was received during 2010 was in respect of his affiliation to the Eastern Cape Rugby Union.
As per the testimony of Mr Vincent Smith the Member was not part of the meeting between Mr Smith, Mr Agrizzi and Mr Njenje at Parliament which took place in 2009.
1. The Member denies having telephoned Mr Watson to cancel the litigation against the Department of Correctional Services. He explained that he advised Mr Watson as a friend that the litigation would have a negative impact on the relationship between Bosasa and government.

FINDING IN THE REPORT

Pages 784 and 808 to 817 of Part 3 volume 4 of the Report on Bosasa

On page 784, at paragraph 1891, with reference to TOR1.4 t states: “The evidence establishes that there is a reasonable prospect that further investigation will uncover a prima facie case of money laundering, corruption and/or fraud against the following persons and the matter is accordingly referred for further investigation.

On page 817, at paragraph 1972, it states: “With reference to TOR 7, the matter is referred to the relevant investigative authorities on the basis that there is a reasonable prospect further investigation will uncover a prima facie case of corruption in term of section 3 and 7 of PRECCA.” –Prevention and Combatting of Corruption Act.

On page 808 at paragraph 1964 it states: “It is clear from the above that Mr Frolick sought to assist Bosasa resolve its impasse with Mr. Smith and thereby improve its relations with a Parliamentary oversight body that was concerning itself with allegations of irregularities in the award of contracts to Bosasa. … “

On page 812 at paragraph 1965, it states: “… on Mr Frolick’s own version, there was conduct facilitating the unlawful award of tenders in breach of, at least, the oath sworn by Members’ of Parliament in schedule 2 item 4 of the Constitution, not only to uphold the Constitution, but also to perform their work to the best of their ability, and clauses 4.1.1, 4.1.3, 4.1.4, and 4.1.5 of the code of conduct governing members of the National Assembly. That facilitation stood to benefit Bosasa, its associates and the Watson family. That is sufficient to establish conduct contemplated by TOR 1.4.”

LEGAL STATUS OF THE 2014 CODE

The Code of Ethical Conduct and Disclosure of Members’ Interests was adopted by the Houses on 29 July 2014 (NA) and 31 July 2014 (NCOP) and came into operation on 1 November 2014. The Code does not have retrospective effect.

The matters that are covered in the Report predates the coming into operation of the Code as it relates to matters that allegedly transpired during 2009, 2010 and 2011 The Code cannot be applied to alleged conduct that took place before the Code came into operation.

THE SCHEDULE OF TO THE JOINT RULES- THE PREVIOUS CODE

Part 2 of the Code provides as follows: “Ethical Conduct”

“12. Declaration of private interests to parliamentary committees of forums

A member must-

declare any personal or private financial or business interests that the member or any spouse, permanent companion or business partner of that member may have in a matter before a joint committee, committee or other parliamentary forum of which that member is a member; and
withdraw from the proceedings of that committee or forum when that matter is considered, unless that committee or forum decides that the member’s interest is trivial or not relevant.”

Part 3, Breaches of the Code provides as follows:

A member breaches the Code it the member-

contravenes or fails to comply with a provision of this Code;
when disclosing registrable interests, wilfully provides the Registrar with incorrect or misleading information.”

COMMITTEE CONSIDERATION OF THE REPORT

The Committee noted that-

1. the testimony of Mr Agrizzi was accepted by the Commission over Mr Frolick’s as the view was held that Mr Frolick should not have engaged Mr Watson on the issue of Bosasa when he realised that he and Mr Khompela were attending a meeting at Bosasa under a false agenda.

2. the Commission found that through Mr Frolick’s own testimony he facilitated a meeting between Ms Smith and Bosasa officials at Parliament. After the meeting he had lunch with the officials from Bosasa. Mr Frolick could not offer an explanation why Mr Agrizzi would want to implicate him. That it was convenient for Mr Frolick to deny having received money as he was trying to avoid scrutiny. Mr Agrrizi however was already facing fraud and corruption charges.

3. the Commission’s findings that Mr Frolick’s long standing relationship with the “Watson” brothers meant that he had an interest to shield them. That the people who provided affidavits to support Mr Frolick’s version, such as Mr Khomphela and Mr Daniel Watson, only submitted confirmatory affidavits in relation to them and did not elaborate on the content of the meetings to verify Mr Frolick’s version.

4. Mr Daniel Watson confirmed that the accommodation and travel arrangements were paid for by the Eastern Cape Rugby Union.

The Committee noted that the Report makes reference to item 4 of the 2014 Code and that the Commission may have erred in this regard as the Code was not in operation before 1 November 2014.

The Committee noted that the Schedule to the Joint Rules (the previous Code) does not have provisions that deal with conduct that covers some of the matters that relate to the alleged conduct dealt with in the Report, such as-

Trying to influence / or influencing a Chairperson of a Portfolio Committee to be bias toward a private entity that is contracted to provide goods and services to a government department;
Facilitating and arranging a meeting between the private entity and the Chairperson of the Portfolio Committee;
Intervening in litigation between a private entity and a government department.

In applying the provisions of the previous Code, the Committee found that the Member did not breach item 16 of the Schedule (Code of Conduct for Assembly and Permanent Council Members) to the 6th edition of the Joint Rules. Also that his directorship with the Eastern Province Rugby Union was disclosed. The accommodation for 21 and 22 August 2010 at O.R. International Airport that was paid for by Eastern Province Rugby was also disclosed. The Member therefore did not breach the Code.

REPORTED FOR INFORMATION

THE CO-CHAIRPERSONS OF THE JOINT COMMITTEE ON ETHICS AND MEMBERS’ INTERESTS: BEKIZWE NKOSI AND LYDIA MOSHODI

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