National Conventional Arms Control Committee on 2020 Quarter 1 Report; with Minister

Meeting report

The Chairperson took Members through the agenda.

Mr S Marais (DA) said he sent the Chairperson a note about Ms G Sonto Kudjoe, Secretary of Defence. Mr Marais said the Committee had a responsibility to her and likewise she had a responsibility to the Committee. He raised that in relation to media reporting about what the State Security Agency had said about investigations and about Ms Kudjoe’s security clearance. Mr Marais noted media reporting that the DoD and Ms Thandie Modise, Minister of Defence, had also requested information, so it seemed to Mr Marais that it was a valid request from the Committee. He asked the Chairperson for his thoughts and whether it was something to consider in the Joint Committee or whether it ought to be considered in the Portfolio Committee.

The Chairperson said he did not know. He said it should be dealt with at the Portfolio Committee level. He said he will look at the matter and would revert to Mr Marais.

Mr Marais accepted and said that if there was a problem with Ms Kudjoe’s security clearance then her role would be seriously affected as the Secretary of Defence and as an accounting officer.

The Chairperson said it would be looked at and that he hoped Ms Modise has looked into it as well.

The agenda was adopted.

The Chairperson asked who was representing the National Conventional Arms Control Committee (NCACC).

Adv Ezra Jele, Head of the NCACC Secretariat, said he was representing the NCACC since it was a Quarterly Report being presented.

The Chairperson agreed with him. He added however, that there would be instances that Minister Modise’s presence would be required. The Chairperson expected a full delegation led by the responsible Minister for Annual Reports.

Adv Jele said that the new Chairperson of the NCACC had yet to be appointed. He indicated that new appointments to the NCACC would be appointed accordingly, and their names published.

The Chairperson said if there were any questions that required a response from Minister Modise or from the Chairperson of the NCACC then it would be escalated to them.

Mr Marais said he was not opposed to the arrangements for the quarterly reports, but he said that for additional things on the agenda that went beyond the Quarterly Report then at least the Chairperson of the NCACC or the Minister responsible would be required.

The Chairperson agreed with him and said in that instance he would ensure that when there were extra items the Chairperson and Board Members of the NCACC would be present.

Opening remarks by the Chairperson
The Chairperson said NCACC played an important role in the promotion of South Africa as a responsible producer and trader in defence related products. That was ensured through the National Convention Arms Control Act 41 of 2002. The Act aimed to ensure a legitimate, effective, and transparent control process that would foster national and international confidence in South Africa’s arms control procedures. To add to transparency the NCAC Act made provision for parliamentary oversight including Quarterly Reporting to Parliament. In the Sixth Parliament , the Joint Standing Committee on Defence has consistently reviewed the activities of the NCACC as well as related problems.

Key issues reviewed by the Committee included the following:

1. In 2020,  the Committee held several meetings on the effect of end user certificate requirements on South African defence companies abilities to export which had been addressed through the amendment of the NCACC Regulations.

2. During a meeting on 5 November 2020 the Committee noted slow progress with the finalisation of a digital export permit processing system by the NCACC. 

3. During the same year the Committee engaged local defence industry role players and was informed of frustrations on the slow NCACC approval process.

4. On 25 June 2020 the Committee noted media queries that related to allegations that some exported weapons might have ended up in conflict zones. The Committee was comforted by the fact that there was no evidence that South Africa had acted inappropriately.

The Chairperson said that the review of NCAA Quarterly Reports provided another opportunity to unpack the issues previously raised by the Committee. The current meeting on exports and imports should advise the Committee on NCACC’s progress on assisting the South African defence industry. The Committee also assisted in fostering a transparent export and import environment. He therefore said that the current meeting would require the NCACC to report on its ongoing investigations into companies that allegedly export weapons to conflict zones. Oversight of those two aspects would allow the Committee to ensure it properly supported the defence industry that aligned itself with international requirements for arms trade.

The Chairperson invited Adv Jele to give the presentation.

NCACC Presentation
Adv Jele said the NCACC would like to thank the Joint Standing Committee on Defence for the Invitation to present its 2021 Quarter One Reports. The NCACC had approached by tabling the reports in Parliament. He trusted that the Committee would accept that approach.

On the contents of the reports, Adv Jele said reports must be presented to Parliament on a quarterly and annual basis. They would be presented to Cabinet and Parliament. Reporting to Parliament is in accordance with these provisions in the NCAC Act and its contents is prescribed by law which was S23(2). The report had to reflect the following:

● Controlled items regulation statistic
● Exports authorised
● Imports authorised
● Conveyances authorised

Discussing the safeguards on transfers, Adv Jele said the guiding principles and criteria of section 15 were the following:

● UN Security Council Resolutions (Arms Embargo)
● Governance – Politics, Human Rights
● Regional Dynamics – Stability
● Risk of Diversion – Proliferation (Non-State Actors)
● National Interest – Security, Political and Economic

The NCACC applied the above criteria of the section in the Act, for all its decisions that authorised the transfer of controlled items. Each application enjoyed this consideration in order to arrive at an approval or denial of each transaction. Given the global temperature in the world as regards conflict, for example in Syria and the forays of ISIS, careful consideration had to be had when authorising these transfers for export.

Adv Jele gave some statistic of the NCACC’s trade authorisations for Quarter One in 2021. 40 permits had been authorised and zero applications had been denied. The total value of contracts authorised came to R42 726 707 314 and 28 countries had been contracted.

The export of munitions was detailed as follows:

● Number of export permits authorised: 133
● Total value of export permits authorised: R600 162 675
● Total number of countries exported: 30

Adv Jele also gave statistics of the NCACC’s trade authorisations for Quarter One in 2020. Twenty permits had been authorised and zero applications had been denied. The total value of contracts authorised came to R7 059 691 944 and 17 countries had been contracted. The export of munitions was detailed as follows:

● Number of export permits authorised: 137
● Total value of export permits authorised: R500 749 126
● Total number of countries exported: 42

Discussing outstanding matters, Adv Jele indicated that the IT project was continuing apace. Both the old system and the new system were live. The phase the NCACC was currently in was the User Acceptance Testing. To implement that phase, users would be trained and then archiving in phases would take place before the old system would be switched off.  Further, costs were expected as equipment bought in 2015 was now outdated. These were further requirements for compliance, before an export could be authorised for controlled goods and services out of South Africa.

Exports to Saudi Arabia and UAE still remained problematic because of human rights violations in Yemen. The current backlog of approvals was to Saudi Arabia and the UAE. The country’s defence industry was deeply dependent on the Gulf Region for its exports therefore Cabinet was to be approached in resolving that matter.

There had been litigation against the NCACC by Open Secrets and Lawyers for Human Rights on Yemen. Summonses had been served in June.  The matter was in two parts, part one was a joinder; part two was a review of permits. The NCACC had a default judgment due to its Non-Defence of Part One of the matter. Part Two was still pending. Office of the State Attorney had provided, and Attorney of Record and Senior Counsel had been appointed from the Pretoria Bar.

Discussion
The Chairperson thanked Adv Jele for the presentation. He said the presentation departed from previous presentations made. He said there was progress as transparency was what would enable the Committee to be effective in its oversight function.  The Chairperson said if he had not opened the platform for questions and comments, he did not concentrate on the virtual board to see if hands were raised and thus asked that Members vocally get his attention if they wanted to ask questions.

co-Chairperson Nchabeleng said he missed quite a lot of the presentation due to his poor reception. He said issues had been raised regarding the end user permits which many countries were challenged with as they felt they were being monitored which caused them to be reluctant to deal with South Africa. Some countries had abandoned the end user certificates so Co-Chairperson Nchabeleng asked for an update on that.

He also noted that the case was lost because South Africa did not represent itself. He saw the slide towards the end but noted that it had something to do with the Middle East.

Mr Marais thanked Adv Jele for the presentation. He said it was a presentation over two or three agenda points, so he had multiple questions. He began with the legal issues raised in the presentation and supported Mr Nchabeleng in asking how it was possible that the NCACC did not oppose the application. What had actually happened as a result of that was that the information that included names and details of transactions that the NCACC was not prepared to submit to the Committee, had in effect been given to Open Secrets and Amnesty International. Mr Marais was aware of Open Secrets lawyers who had written to some Members whose names and details had been disclosed including the details of transactions which seemed to Mr Marais to be a major issue. He was thinking not only of the individual companies which exported but also of the intelligence information that could expose South Africa to anyone who would now be aware what was produced by who and who had what capacity. That could lead to a different onslaught of South Africa. He asked Adv Jele for more details on who decided not to oppose that application and it was a human error and asked if that person faced any consequences for that default judgment. Mr Marais said the NCACC was a strategic organisation with billions of rands for strategic material so that kind of slip up was inexcusable because that sensitive information had been made available to an organisations like Open Secrets and Amnesty Intelligence which had their own agenda’s which were not in favour of South Africa’s defence industry. He asked if heads had been rolling and asked Adv Jele for full disclosure on the matter. 

Secondly, Mr Marais said there had been a previous investigation done on Saudi Arabia and the United Arab Emirates (UAE) and it had been found that there was no indication the UAE had continued involvement in Yemen and there was no reason why any exports to the UAE should follow the same procedures as those exports to Saudi Arabia. He referred to Turkey where he believed there had been permits issued but those were probably the A and B category of munition which was in his opinion was the highest value of South Africa’s exports. Those seemed to have been revoked since the beginning of the year and Mr Marais’s information was that none of those companies could export anything to Turkey, the UAE or to Saudi Arabia. He said that according to his information, the buyers in those three countries were unhappy that they had already commenced negotiations with companies in China to replace South Africa as the supplier of those munitions. That was not something South Africa could afford, and the defence industry could as well be shut down. He also wanted to know whether the NCACC met every month to consider applications and grant permits. Information Mr Marais had received was that there some industry players that were very unhappy because none of their applications had been considered since February which meant a whole year without shipments. In one or two cases, trucks were on the road towards to the harbour and had to turnaround but still had to pay $200 000 for ship that were waiting for the load that was never loaded due to the revocation of permits. He asked how these serious matters would be dealt with.

On the conveyancers, Mr Marais understood that it was an instance where for example Botswana would apply for a permit to transport munitions from a Durban harbour to Gaborone. He said he was aware of hardware and ammunition that was transported from Botswana to Namibia so was it of no concern that there were zero last year in the first quarter and zero this quarter. Didn’t that indicate a reason why they clearly didn’t want to use South Africa’s facilities anymore but clearly made use of Walvis Bay in Namibia or going through Maputo straight to Swaziland, bypassing Durban. Had it been identified because clearly there seemed to be something going on with economic opportunities and revenue that South African was missing out on. Mr Marais was concerned it was an indication of more problems.

In his comparisons of the two years in terms of applications and permits, Mr Marais said that according to his information many of those applications were for A and B category munitions so if no permits had been issued to load that munition, then it meant there was a huge difference between the approval of contracts, export permits and the actual permission to allow them to load those munitions. That seemed to have a major impact on the defence industry, and he wondered whether that had been discussed with industry players but that was information Mr Marais had received straight from the defence industry. There seemed to be a disjunction between the industry that was not allowed to export and the whole drive to stimulate the defence industry from the government’s side and that was how business would be lost to China and other countries.

Mr D Ryder (DA, Gauteng) said he was well covered by Mr Marais. He added that the non-defence of the matter needed to be taken further.

The Chairperson added onto the court case matter raised by the Members. He said that had been part A of the case and part B of the case would be for Open Secret asking for a court order setting aside the decision by the NCACC to grant the permits. He asked where the case was at presently. He asked Adv Jele to confirm that NCACC had appealed the matter. The information was that the NCACC did not turn up in court or file opposing court papers despite having exchanged papers with Open Secret. He asked why the ball had been dropped which had risked the exposure of protected information.

On the status of the end user permits and accompanying problems, Adv Jele said the Committee would agree the matter had been dealt with effectively the previous year where in June 2020 an amendment was gazetted, and the contentious aspect was changed. He therefore did not know of any entity or country that still battled with the provisions. He said it covered the aspect of the end user certificates which some countries had not been happy about.

On the usage of Walvis Bay instead of South African ports, Adv, Jele said that it had been looked into. He said it had not been due to the stringency or otherwise of South Africa’s regulations on the application and granting  of permits. He said it could be a decision that was beyond the NCACC when it came to the accessibility of South African harbours and the turnaround that had been enjoyed by ships that docked as the accompanying terms and conditions. He did not want to mention the COVID-19 pandemic but was confident that it represented a loss of income that could not be located within the NCACC or its stringent regulations.  He hoped his response was effective.

On the UAE and Saudi Arabia, he said the Committee was well concerned because the defence industry was heavily dependent on exports to those countries. Essentially if one were to look at the report Adv Jele had given for Quarter One it indicated that permits were issued for those countries for categories C and G which also had value. He had indicated that category A and B in relation to both Saudi Arabia and the UAE had just above R3.5 billion. He also indicated that the NCACC worked on finalising a document discussed in Cabinet to manage that matter. He was cognizant of the concerns raised and how best to manage them. That meant it was important not to send a negative message to Saudi Arabia and the UAE that they were being sanctioned. South Africa only subscribed to sanctions that emanated from the United Nations (UN) Security Council. Adv Jele said the domestic agenda also had to be noted and some of those concerns. Essentially there had to be a balancing of both countries at a sovereign level where there was a concept of acceptance of what needed to be done in order to manage it. It would be concerning if South African material was being diverted and impacted the countries human rights standing. He expressed confidence that it would be resolved as soon as the document had been tabled and discussed and outcome been identified. He added that it was incorrect to say that there were no approvals for those two countries, including Turkey. He said the frustration was high if one considered that certain companies were complaining that they did not get authorisation for category A and B products that were ready for shipment. He said it had to be taken into account that the NCACC was informed by the countries own intelligence agencies that raised concerns where they existed. The NCACC had to absolutely consider that as part of its decision making.

Adv Jele said the industry and companies required help not to fold or be found in dire constraints. He was engaging both the task team that was from the industry itself as well as their board members. Everyone agreed that it was not only because of the litigation but all the other challenges required there to be better coordination and close interaction to arrive at solutions for the matters. He informed the Committee that there were letters written on the matter by the industry association and individual companies.

On the court order, Adv Jele said that as a result of the court order, the NCACC had not submitted information that would compromise industry or the entities that hold those permits but only the names of companies that have those permits and a contact person. When he engaged industry the complaints by the Board asked why the lowest person in the company the summons had served on them. Adv Jele explained that it was a result of how low the pickings had been by the NCACC in terms of sharing information with the applicants who won the court case. Therefore, the NCACC was cognisant of the importance of not divulging information that was critical to the industry. Adv Jele indicated that what he was about to say was beyond the scope of his mandate but what concerned him was that the NCACC ordinarily looked at the litigation by Open Secrets and lawyers for Human Rights merely as litigation. However, a deeper reflection of why those actions were being launched revealed they targeted industry and the sovereignty of the country. They also targeted the authority of the NCACC to act rationally under an Act of Parliament. There were things that needed to happen that were broader than the NCACC in order to find out why the NCACC had been faced with that litigation. There was a matter Adv Jele had not shared with the Committee because it was still being engaged with and which had not yet proceeded to litigation. The question that ought to be raised was why non-governmental organisations (NGOs) thought they could challenge the authority of the State in its rational thought out process that had stood over the years to the envy of other countries. He said that the Committee was correct in being concerned. Adv Jele said he was under a lot of stress due to these matters. He had to deal with the industry that asked what would happen and when Adv Jele gave them an indication of what would happen based on his interaction with the office of the State Attorney and Senior Council. He also agreed that one of the persons in the task team could team up with the State Attorney and Senior Council to properly report back to the industry and not through the office of the NCACC as that alleviated the burden from Adv Jele’s office to engage with the industry. That representative would then become the eyes and ears of the industry as NCACC could not defend the matter and ensure the integrity of the process that had been managed thus far.

On the consequences of not opposing the court order, Adv Jele said he wished. Ms Kudjoe was online as she was best addressing the matter of dropping the ball. He added that the NCACC and himself as Head of the NCACC Secretariat were fully funded by the DoD. Therefore, the matter and litigation would have been launched and defended by the DoD which had a litigation unit. That essentially was where the ball was dropped. Adv Jele reiterated that the NCACC did not have a unit that actually dealt with litigation so he as the person impacted had rushed to the DoD litigation unit to give them the matter and asked for assistance. It was pointed out that the first defendant was the Chairperson of the NCACC, and the second defendant was the Minister of Defence. Therefore, there ought to have been an interest and urgency from the DoD to ensure the matter was defended. Unfortunately, the DoD had dropped the ball and presently and appeal was to be launched to rescind part A of that decision. Adv Jele hoped he had answered all the questions.

The Chairperson said Adv Jele had not addressed the Part B application which would have the effect of setting aside the decision of the NCACC. The Chairperson raised the point because over the last five years 35% of all controlled items exported from South Africa went to Saudi Arabia and the UAE; so they were important trading partners. There is the unopposed court decision that had an impact of setting aside Adv Jele’s decision may have an effect on trade and business from those traders. He therefore asked if Part B of the application had been assessed and it had been what was the decision and if it had not then what was the reason for that. Were papers filed to oppose the matter?

Adv Jele said papers had been filed in relation to Part B because Particulars had been provided in a Notice of Motion that was served on 14 June. He had indicated that part of the action was to go to Part One to annul the order that sought additional information to what had already been provided. It also required the record of proceeding which were minutes of the NCACC when discussing the authorisation of the permits which was completely unacceptable. That was pushed onto NCACC, which was the national regulator on behalf of South Africa, and should not be taken lying down.

On the DoD failing to help the NCACC on time, Adv Jele said it was not water under the bridge, but he was comforted by the engagement he had with the State Attorney and Senior Counsel especially with Part B. When Part A was launched it was launched on…(inaudible due to temporarily lost connection).

While waiting for Adv Jele to reconnect to the virtual platform, Mar Marais said he was concerned that somewhere someone dropped the ball either in the NCACC or in the DoD, but the Committee needed to know who that was and why it happened. He said he was afraid of a situation where both sides blamed the other, but they required to work as a group. He said it was a serious allegation against any department especially one involved in arms exports. He had no doubt that groups like Open Secrets did not care about the integrity or protection of the Country but about their own objectives and agendas which were opposed to that of the country. He said his information pertained to Saudi Arabia, UAE, and Turkey. He said that according to his information from the industry the department conducted an investigation that found that UAE and Turkey had no involvement in Yemen thus there was no reason not to export to those countries. Those were major consignments that could not be loaded, and those countries would not wait forever for those munitions and would trade with China instead.

The Chairperson adjourned the issue while the Committee waited for Adv Jele to re-establish his connection to the virtual platform.

He then took Members through the Committee Programme for its term.

The Chairperson welcomed Adv Jele back onto the virtual platform. He reminded him that he was dealing with the court challenges to Part A and B of the default judgment.

Adv Jele repeated that papers had been launched to deal with Part B which was to formulate a response to revoke the applications. The brief given to the State Attorney and the Senior Counsel was to also assail Part A in terms of a revocation or for a rescission of the draft order as the matter had not been ventilated. It was a default judgment because of papers that had not been filed in time. He believed there was a strong case to have Part A of the Draft Order annulled. He worked closely with the legal representatives.

Mr Marais asked a follow up question. He made it clear that the default judgment was not to nullify the permits the NCACC had issued but it was for the information of list of companies that had carried out exports over the last year or so. Was he correct in his understanding?

The Chairperson said that the information requested also included the minutes of the meetings.

Mr Marais said the DoD would have to account to the Committee about why they did not oppose the matter.

Mr Marais also said that Adv Jele had only referred to Saudi Arabia and the UAE, but his information also included exports of category A and B munition to Turkey. Those three countries could not receive imports. He asked Adv Jele for a response to his information that the UAE had been cleared of any involvement in Yemen, meaning they could receive exports.

On the end user certificate, Mr Marais said that if the NCACC had any prima facie evidence of possible transgressions by end users then it would start an investigation. He asked if any investigation into end user violations in the three named countries had been initiated. If not, then how did the NCACC justify not shipping to the UAE and Turkey because it seemed Saudi Arabia was the more concerning country.

He also added that—in the Quarter Report—two attack helicopters were approved for Mozambique. He asked if those were the two helicopters by paramount or private companies or government.

On the IT systems, he asked if the new IT system ran parallel with the old one and whether those were for new online applications and approval of export permits. He asked whether there instead were some categories would be other of applications other than A and B that would be granted online as well. That IT system was crucial for stimulating the defence industry and trade abroad.

Mr Ryder went back to the legal matter that was unopposed. He said the more he heard about it the more he realised that it led to massive complications and expenses. The matter had to be defended in court and on the back foot there needed to be serious accountability from Ms Kudjoe to explain how it happened. It was fruitless and wasteful expenditure and where would it vest? Would it vest with the NCACC or with the DoD? Both sides of the story needed be heard as the mistake had a substantial cost attached to it. There was also reputational damage to the NCACC which had to give out information it should not have had to share. It was extremely concerning. The NCACC is a creature of statute and the ball had been dropped and the DoD had to come and account to the Committee as soon as possible.

On the IT system, Adv Jele said it was a fully digitised system which would enable the NCACC to go completely paperless. As previously indicated, the review departments would link onto the system using equipment offered by the NCACC but based in the respective departmental buildings. It would improve the turnaround time of applications received and what would be circulated around which is currently delivered to the respective departments in paper form by the NCACC’s messenger. Approval responses from meetings would also be easily uploaded. Adv Jele hoped that when the system was fully operational it would help with the turnaround and therefore stimulate the defence industry.

On the backlog with Turkey, Adv Jele said it was indeed true that there was a placement under consideration by the NCACC on category A and B exports. Everything else for all three countries were being authorised. Adv Jele highlighted Saudi Arabia and the UAE because their value was very high compared to Turkey. It did not mean Turkey was not significant, but the NCACC was seized with the matter to ensure it got a resolution hence the escalation of the matter to Cabinet to find a sustainable solution. It was important not to lose the three trading partners because a rapport had been built where niche equipment had been supplied for many years. It was a market that was developed and needed to be defended as it kept the industry sustainable. If it was lost, then the foreign exchange received from those three partners would be lost and South Africa cannot afford that. He said the NCACC was not idle and were trying to ensure it was done on a sustainable basis with partners who understood the domestic agenda that the monition received from South Africa was not to be given tot non-state actors or third parties who engaged in tribalistic or regional fights in areas of those three countries jurisdiction.

On the helicopters supplied to Mozambique, Adv Jele confirmed it was the helicopters Mr Marais referred to. Adv Jele confirmed that transfers were on behalf of the country and were considered sovereign transfers from one government to the other. It was not envisaged that when such transfers had occurred that the recipient countries would violate the transfer and let the equipment received to be used by non-state actors. Adv Jele said nothing had come forth that proved the equipment had been used in that manner. A country could only be confronted about such claims based on substantiated facts as it would be embarrassing for South Africa to do so otherwise especially with trading partners who are also allies.

The Chairperson closed the question session and said the Committee would follow up with the court case as the organisations who filed the case needed to be open about their intentions instead of pushing agenda’s. He thanked Adv Jele and said the discussions were much more robust and substantiated because of the quality of the information he had placed before the Committee. He said the defence industry was looked at in terms of its contribution to the South African economy. The defence industry’s stabilisation meant more jobs and growth for the economy, so it needed to be protected like all industries that contributed to the economy of the country. South Africa could not afford to lose the trading partners and would take them to task for wrongdoing when it arises.

Consideration of Committee Programme
The Chairperson returned to Committee Programme and took Members through it.

Consideration and adoption of Draft Minutes 30 July 2021
The Chairperson took Members through the minutes page-by-page. The minutes were adopted with no changes.

Consideration and adoption of Draft Minutes 5 August 2021
The Chairperson took Members through the minutes page-by-page. The minutes were adopted without changes.

The meeting was adjourned.