Fireblade Terminal Operations: Minister and Department briefing

Meeting report

Fireblade Aviation Standard Operating Procedures
Mr Thulani Mavuso, Acting Director-General: DHA, informed the Committee that on 27 December 2017, DHA implemented a court instruction that it should immediately implement operations at the Fireblade Aviation Fixed Based Operations (FBO) facility at OR Tambo International Airport (ORTIA). The Department and Fireblade exchanged formal communication in January and February 2018 to ensure adherence to the requirements and procedures to operationalise the FBO facility whilst awaiting the outcome of DHA’s appeal to the Constitutional Court. This included correspondence from Fireblade towards the payment of personnel cost and to cover DHA’s capex cost for equipment installed at the FBO.

He said although the Concourt only included DHA, border law enforcement could not be executed in isolation. Consultations took place with the relevant border law enforcement stakeholders to request their participation to give effect to the court's instruction. Operations commenced on 12 February 2018 to ensure DHA abides by the court instruction. The current operations considered the roles and responsibilities of the FBO and state agencies in the processing of passengers, goods and conveyances according to the laws of the Republic applicable at a port of entry.

During a meeting between DHA and Fireblade on 8 February 2018, Fireblade confirmed that an “MOU” with elements of an SOP were developed within the BCOCC. This document outlined the high level roles and responsibilities. The meeting agreed that this would be revised and signed in February 2018. A draft MOU and SOP has been developed with inputs from the different border law enforcement stakeholders and Fireblade Aviation.

On 16 February 2018, DHA provided a draft MOU, SOP and Checklist to Fireblade, inclusive of the comments of other border law enforcement stakeholders. It highlighted areas that could not be concluded by the other border law enforcement stakeholders (Port Health, SAPS and SARS). These matters were reflected in the documents. Fireblade then provided a mark-up on the draft MOU and SOP on 4 April 2018 for further consideration by DHA. This was referred to DHA Legal Services to advise on the process going forward. Following an internal meeting, DHA Legal Services advised that because DHA was still operating under a court order, this would create a legitimate expectation on the part of the FBO.

On 29 October 2018 the Constitutional Court dismissed the DHA application for leave to appeal. DHA Legal Services advised that this matter was now finalised in terms of litigation. DHA should now obtain legal advice on how to proceed with the MOU finalisation with Fireblade and the relevant border management stakeholders in the absence of a policy framework. The draft MOU and standard operating procedures incorporated the value chain of operations for all relevant border law enforcement stakeholders and was aligned to the following key activities executed during current operations:
- Notification of international flights scheduled to arrive at and depart from the FBO
-  Value chain of events to ensure border law enforcement.

On the notification of flights, Fireblade Aviation has to provide 24 hour notification of international flights scheduled to arrive at and depart from Fireblade FBO; transportation of officials; and security checks for officials entering the facilities according to the lists provided and the applicable rules of ACSA. The following details are required with a 24 hours sms/whatsapp and email notifications of international flights:
- Aircraft Registration
- Aircraft type, year of manufacture and serial number;
- Point of origin (Departure and Arrival Destinations);
- Expected time of arrival (ETA) and expected time of departure (ETD);
- Expected number of crew members and passengers;
- A complete General Declaration;
- Cargo Manifest;
- Any health questionnaires and/or confirmations which may be required by the DoH for a specific country of origin from time to time as per DoH requirements;
- List of weapons related to hunting, body guards and protective body gear will be provided for the attention of SAPS short notice requests (i.e. requests for international movements with less than 24 hours' notice) is applied for on a case by case basis and is subject to approval of the border law enforcement authorities.

Mr Mavuso reported that operational challenges were identified during the first phase of the implementation regarding flight changes and operational needs by the Fireblade team. These challenges were addressed through an operations meeting held between Fireblade and Home Affairs. General challenges were dealt with accordingly to ensure operations were not affected at the Fireblade terminal. From an operational perspective things were moving well.

On risks, he stated the FBO was operating on a trust relationship with DHA and other agencies operating at the facility. It must be noted that after a flight is cleared all officials from the various stakeholders are required to return to the main terminal at ORTIA. During times when no flights were reported for either arrival or departures, no department or agency had sight of what happened at the FBO facility. This arrangement was, therefore, considered to be the main risk and the State Security Agency (SSA) would need to assess and monitor the impact of such an arrangement for operations during these non-operational times.

Mr Mavuso pointed out that all state agencies have similar human resources capacity challenges. This also impacts on resources required to ensure logistical arrangements, oversight and reporting. The following border law enforcement agencies noted specific challenges:
• DAFF: Does not operate on a 24 hour basis (two shifts 06h00 to 14h00 and 14h00 to 22h00)
• DEA: Office space at FBO is small. Operates for 8 hours per day (special arrangements are made to accommodate flights out of operating hours).
• SAPS: The offices at the FBO were accessible to all as the access cards are held by FBO. This compromises the HIT against warning lists and information of the systems. It is because of this situation the SAPS HIT is not generated on the side of the FBO. Border Police personnel are trained and they specialise in this area of work. An ordinary police officer cannot be deployed as they do not possess these skills.
• SARS: Transportation to and from the site and the collection of personnel during shift changes. Pre-arrival 24 hour notice of information is affecting the operation for deployments. They have not collected any revenue since commencement of operations. No financial benefits from a SARS perspective.

The funding model and DHA's intention to recover the cost of personnel deployed at the FBO facility was discussed between DHA and Fireblade Aviation. DHA made a clear distinction between capital expenditure (capex) and operational expenditure (opex). The initial costing was done for a single shift option but it was agreed that a DHA staff complement of four officials would form part of the opex costs to be reimbursed. This was aligned to the business offering of infrequent flights and very few passengers. Fireblade Aviation was reimbursing DHA for the personnel costs associated with the opening of the facility on a monthly basis. The payment of personnel amounted to R1 400 996 per annum.  

Discussion
The Chairperson reminded the Committee that it had held a meeting with the Minister and Acting Director-General on 8 May 2018 for a briefing on the Fireblade Aviation court cases and litigation. The Minister raised a matter of an internal memo that got stolen which was said to be about a Fireblade contract he signed. The Committee had taken the decision to support the Minister in taking the matter to court because it involved public money.

On 31 August 2018, the Committee resolved to send a delegation to observe the Fireblade activities and be taken through its services. They discovered that many departments were providing a service to Fireblade Aviation. After the Committee met the Fireblade managers, it invited the company owners to appear before the Committee.

On 30 October 2018, the Committee met the Oppenheimers as owners of Fireblade Aviation – and took them under oath. The owners took the Committee through the whole application process and litigation. The appeal of the Minister was dismissed by Concourt. The Public Protector came with a finding before the Concourt judgement which has been communicated to the Speaker. The Public Protector in her report raised that the Minister lied under oath. The Public Protector referred the matter to the Speaker and President.

The Chairperson noted the Committee wanted to ensure accountability for every cent the state spent and that it has no other agenda besides that. It was only fulfilling its constitutional mandate. The process the Committee was following was not to reverse the decision of the court, but its attention was on how to move forward. The Committee would make its own conclusion about its engagement with the Minister and Department.

Ms N Dambuza (ANC) remarked there was no need to prolong the matter because the Committee met with Fireblade Aviation management and got the details it wanted. She does not remember seeing the officials of the Office of the DG at Fireblade. Members must not debate the court ruling as they have gone through it. Members have all the information and the onus was on the Committee about what it wanted to do with it.

Ms H Mkhaliphi (EFF) said the matter has been with the Committee for a long time. The Committee has no jurisdiction over the court ruling and Public Protector report. She stated it was fair the Committee took a decision to call the Minister after it engaged with the Fireblade owners. The Minister’s appeal was dismissed, and the Public Protector report said the Committee must deal with the matter.

Mr M Lekota (COPE) said it was clear the horse has bolted. The matter had received the attention of the courts, and the Public Protector has made a recommendation to the President. He proposed the Committee should not discuss the matter further because it would find itself in default of the Constitution.

Ms S Nkomo (IFP) said it was important to take note of public perceptions about the Fireblade matter. She suggested the Committee, Department and Minister should find a way of communicating this to the general public because South Africans needed to know about it.

Mr M Kekana (ANC) supported the Public Protector report and Concourt judgement. The Committee needed to check if the operational agreement with Fireblade was signed or still needed to be signed.

Mr M Hoosen (DA) commented there should not be any debate that the Minister lied under oath. The Minister was owing the country an explanation about approving the licence during the meeting he held with the Oppenheimers. He needed to tell the Committee what transpired during the meeting of 28 January 2018. The Minister has exhausted all legal avenues and he should give the Committee the way forward and the litigation costs on the Fireblade matter. In previous submissions, the Minister indicated DHA has two applications from the George and Cape Town airports. The Committee should be given an explanation on these airport applications.

Mr Lekota suggested the Minister should not be asked to make statements to the Committee as he might end up making conflicting statements and not say what he said before in his affidavit.

Mr D Gumede (ANC) remarked there was no contract to regulate the relationship with Fireblade and to monitor oversight. The agreement has not been reflected in the DHA Annual Report. There was no reason to continue with the discussion unless there was something new that was going to be said.

The Chairperson said he wanted the Minister and Department to understand the Committee's views on this. He proposed the Minister be given a platform to clarify the position taken at the 8 May 2018 Committee meeting because eight departments were providing a service to a private company, and the Committee took a decision to support the Minister to go to Concourt for an appeal.

Minister of Home Affairs address
Minister Malusi Gigaba informed the Committee that during the 8 May 2018 meeting it was indicated there was no policy on the VVIP terminals. The policy has still to be developed to provide a framework for how to deal with such matters going forward and other cabinet colleagues would be consulted. The airports were the responsibility of ACSA and Department of Transport. DHA was the coordinating agency in terms of immigration. He said the discussion should be on whether the VVIP terminals should be handled by DHA or Department of Transport. The procurement process for the VVIP terminals was a governance matter that needed to be clarified as it fell under the policy framework. This was going to be taken to cabinet for guidance. The Kruger Mpumalanga International Airport and Lanseria Airport were privately owned for public use and were not VVIP terminal airports. In 2010, government made a proclamation that every province should have an airport, and that was why there was the Kruger Mpumalanga Airport. Lanseria was there to ease traffic congestion at ORTIA. The main issue was the VVIP terminals. Personally, he does not think DHA has a problem with the George and Cape Town Airport applications because those processes were different from Kruger Mpumalanga and Lanseria Airports. The only thing that needed to be done was to develop a framework. Given the public interest in this matter, it presented an opportunity to ask the public about the VVIP terminals to gauge its views on this. Members should bear in mind DHA does not have complete operational plans, and these would be developed as they go forward.

Discussion
Mr Hoosen remarked the Minister has been complaining that he has not been given chance to tell his side of the story. Now that he was given the opportunity, he said nothing. If he has done wrong, he must say so, or convince the nation he was right in his actions.

The Chairperson stated the Minister’s statement was contained in an affidavit that was dismissed by three courts and there was a finding from the Public Protector. All these processes have been referred to the Ethics Committee, Speaker and President. Thus there should be no discussion on the matter. The interest of the Committee was the agreement between Fireblade and the state which was providing a service. The Committee was interested to know the way forward after the court judgements and it was aware that processes for developing operational plans were underway.

Ms Mkhaliphi said there was no reason to engage with the Minister after the court judgement and Public Protector’s report even though the Committee agreed to call the Minister to explain the Fireblade process.

The Chairperson said he had reasoned that the Acting DG should speak to the Committee about the Fireblade process and then they engage with the Minister. Members should ask questions after the DG’s presentation, but keep in mind there the court process is complete which would be debated by the Committee alone.

Ms Mkhaliphi stated the Committee should be clear about the purpose of the meeting. There was no reason for the Minister to speak as he was invited before the Constitutional Court judgement and Public Protector report were released. The Committee was interested in the Acting DG report.

The Chairperson maintained the Minister was given a platform to speak and he avoided saying anything about the court judgement. The Minister said the Acting DG would present the Fireblade operational process.

Mr Kekana said seeing that all Members agreed on the Public Protector report and Court ruling, he does not see reason for the Committee to continue to discussing the item in the presence of the Minister. He proposed the Minister leave the meeting.

Ms Dambuza suggested the Acting DG brief the Committee on the standard operating procedures. The Committee must not be bothered about the presence of the Minister.

Ms Mkhaliphi said that the Minister remained a constitutional delinquent who must leave the committee room and not be engaged with. The Court ruling said the Minister lied under oath as the Public Protector. The Minister must resign because he remains a constitutional delinquent.

Mr Hoosen insisted the court has made a finding but that did not mean the Committee must not debate the matter because it was much deeper than it looked. In one of the Gupta emails a certain Robie stated he sought assistance from Mr Jacob Zuma about Fireblade. Then an instruction from government was given to Minister Gigaba to deliver the approval on Friday of the same week. The Minister had to tell the Committee if he was pressured to approve the application. He was of the view Minister Gigaba acted in concert with others. If Minister Gigaba was not allowed to speak, South Africa would remain poorer without the truth.

Ms D Raphuti (ANC) said it was agreed the state was providing a free service to Fireblade which was unacceptable. She suggested an agreement must be drafted, signed and presented to the Committee as a matter of urgency.

Ms Nkomo said she did not like the continued use of the words, “the Minister lied”. The Committee has wasted a lot of time on this item, and it was an embarrassment to the Minister. She suggested the Acting DG should continue with the presentation and the Minister be excused.

The Chairperson explained it was not the Committee's words but it was the Constitutional Court and the Public Protector that said “the Minister lied under oath”.

Minister Gigaba apologised for having misunderstood what the Chairperson asked him to talk about. He said the confusion was on whether to talk about Fireblade Aviation operational procedures, or matters related to the courts. What was before the Supreme Court of Appeal and Concourt was whether the approval was granted by the Minister of Home Affairs or not. It was not about the lies. Allegations by Mr Hoosen have been made in a calculated way to influence the decision. A claim was made deliberately to a newspaper that on a flight to an unknown destination two gentlemen were overheard saying they would discuss the matter with Minister Gigaba. The story said this was also heard by the pilot. How was it possible that the story could be heard by the pilot who was in a cockpit or the two gentlemen were discussing this inside the cockpit? This story would never win in a court of law.

The Minister stated that on dates unknown it is alleged he was told by government to sort out things by Friday. He asked who the government was as a presumption was made that the government was a person. A government was a body. He said this was hearsay from the emails, and there were inconsistencies in the allegations. The Minister stated the engagements with the Oppenheimers and Department started in 2012. They submitted an application which was reviewed for ad hoc services. This application was given to the then Minister of Home Affairs, Ms Naledi Pandor.

Ms Mkhaliphi interjected and asked what the Committee was doing by allowing the Minister to talk because there was a court ruling on this item and the Committee had indicated it was not interested in engaging with the Minister. She suggested the Minister should leave the meeting, resign or the President fire him.

Mr Kekana said the Committee must allow the Minister to go and rest because to let him speak was to disrespect the law. The matter has been referred to the President, Speaker and Ethics Committee. He asked the Minister to go home in good faith.

The Chairperson indicated the view of the Committee was not to engage with the Minister, and the Acting DG should continue with his presentation.

The Minister left the committee room.

The Chairperson stated the Acting DG should tell the Committee how the process started in 2012 with regard to operational standards and equipment required on site. He asked if it was possible that the MOU could be handed over to the Committee so that it could go through it. There was a need to ensure there is a proper MOU on the services it offers to a private company. The Oppenheimers said the MOU was given to DHA long time ago to be signed. The MOU was supposed to cover many things, including timelines, but it was clear the Committee was dealing with people who were ill-prepared. The Acting DG had identified gaps and said there was no policy, but said nothing about closing those gaps and developing a policy. The services the state was providing were informed by the framework that still has to be developed. He suggested the Standard Operating Framework document should be shared with the Committee.

The Acting DG said there was a draft MOU. Comments were solicited from stakeholders and it was revised. There was an application for Fireblade to offer a service. DHA did not go around asking for service providers. He noted that when the Fireblade project was started, he was not with DHA.

The Chairperson interjected and said the Acting DG did not come prepared as there was no need for him to remind the Committee he was not with DHA when the Fireblade project was started. The Acting DG must allow other DHA officials to answer some questions and share information with the Committee.

Ms Dambuza was unclear if there was no agreement in place with Fireblade, but they were just operating. It was clear there was no signed draft agreement. If there was no policy, there should be a signed interim arrangement to protect the employees and arrangements. She asked if the Acting DG communicated the opinion of the internal legal unit to Fireblade.

The Acting DG admitted there was no agreement in place, but only the court order that was enforceable. DHA has an agreement with Fireblade on how to deploy staff. The MOU was not signed, but DHA followed the court order. He assured the Committee they would use Department lawyers to seek advice on the matter.

Mr Jackie McKay, DDG for Immigration Services: DHA, added he was not aware of any agreement between ACSA and DHA on rendering of services by DHA at the airports. Discussions on policy matters were started after DHA got legal advice. He has been in and out of DHA for many years and could not recall everything that happened. He said the BCOCCs were at every port of entry and were operated by SARS. Customers were cleared at the main terminal by DHA. There was a discussion with the BCOCC but no agreement was reached about where goods should be cleared. The Oppenheimers claimed they were given authority by the local BCOCC to do the clearance. The policy implications were never discussed on how things should be done at the ports of entry. In the absence of a policy framework there was a need for an interim arrangement and to discuss matters with relevant departments, including the Border Management Authority. At least there is a draft MOU which has to be used as a base for engagement, even if the MOU was not signed.

Mr Hoosen remarked that the challenges around the Fireblade matter were an indication DHA was in a mess, and DHA did not follow proper procedures because there was no policy in place. It was strange because the process started in 2012 yet four ministers were not advised about the absence of policy, unless the ministers were alerted but chose to forge ahead without the policy. He asked for clarity on the case of a passenger who attempted to load a bag onto a Gupta plane but with no success. The security officers wanted to find out what was inside the bag because it looked suspicious. How was it possible that a passenger tried to take a bag through the Fireblade terminal, and when that proved impossible, the passenger was able to leave the airport and drive away. The matter was reported to DHA, but nothing was done. He asked about the affidavit signed by a certain Mr Mkhize and Oppenheimers where the former DG tried to settle the Fireblade matter out of court and if this meeting was attended by DHA officials. He asked what the costs of the Bill were.

The Acting DG explained he was not familiar with the applications received during 2012 or if they were discussed with the former ministers. He was not familiar with the out of court settlement discussed with Mr Mkhize and Oppenheimers. The costs of the Bill would be made known once the Bill was finalised. The Department was concerned about the facility where there was no security unlike other facilities such as OR Tambo Airport. The Fireblade terminal started operating as a domestic terminal and was never built for an international port of entry.

Ms T Kenye (ANC) asked who owned the Kruger Mpumalanga Airport.

The Acting DG replied he was not sure of the status of Kruger Mpumalanga Airport, but it was owned by a private company/person. Lanseria was owned by a consortium which includes PIC. When the rationalisation of airports was done, it was agreed there should be one international airport in the country. In Nelspruit, there was a small airport. There was also a discussion that there should be another airport to help OR Tambo and is able to accommodate big aircraft.

Ms Mkhaliphi agreed with the Committee concerns raised during the visit that there were no security officials in the VVIP terminal. Fireblade staff was operating alone and there was a slim chance that they would keep DHA informed all the time. The VVIP terminal was outside the OR Tambo Airport. During the visit, Fireblade personnel were working alone in the facility and it was clear there was no one guarding our interests as a country. There was a concern that a private family was operating our VVIP terminal. She pointed to the letter written by the Oppenheimers to Minister Gigaba on 28 January 2016 where they expressed delight that the three-year contract was approved and signed. It was not clear why the contract was signed in 2017 for a transaction that started in 2012. The rental paid by the Oppenheimers to DHA was not declared in the Annual Report and that should be classified as irregular expenditure. She stated there was something wrong with the Fireblade project if it was reported that it does not generate any money.

Mr Gordon Hollamby, DHA Chief Financial Officer, explained it was agreed that money generated should go to the National Revenue Fund (NRF). The money was paid into the DHA ABSA account. It was treated as revenue generated by DHA and was deposited into the NRF.

Ms Nkomo noted one of the risks identified:  “During times when no flights are reported for either arrival or departures, no department or agency has sight of what happens at the FBO’s facility”. This meant a lot of dirty stuff happened. That was why the Oppenheimers talk of a dirty gentlemen’s agreement. It was possible that SARS was told not to be at the facility at certain times so that these dirty things could take place because SARS had stated: “No financial benefits from a SARS’ perspective.”

Mr Kekana commented that when the Committee took a decision to support DHA, he indicated DHA did not have a chance of winning the case. He wanted to know the costs of the litigation. He further revealed that two ministers who were his reliable sources told him they knew nothing about Fireblade Aviation. It seemed as if there were more shenanigans in DHA that needed to be investigated.

Mr Hollamby said details of the litigation cases would be forwarded in writing to the Committee.

The Chairperson asked what the appeal was about.

A Department official replied it was an application to the Constitutional Court for condonation and for leave to appeal against a lower court ruling. The Constitutional Court was not asked to look at the merits of the case. It dismissed the application for leave to appeal.

The Chairperson stated that in a meeting of this nature it was important to let DHA state its case and then the Committee would make recommendations after it has engaged with it. What concerned Parliament most was that DHA was providing a service to a private company and it became clear it was not only DHA that was providing services. DHA should start looking at closing the gaps that have been identified when developing the policy framework and scrutinise areas that need to be legislated. This would help propose amendments to the Border Management Authority. Pertaining to the MOU, DHA needed to engage with other departments at a higher level. This matter should be discussed with the DDGs of the relevant departments because it has got to do with the security of the country and it presented an opportunity to discuss how to manage this facility. Clear timelines should be stated. Now the Committee got to know the MOU has expired because it waited for the Supreme Court of Appeal process to be concluded. The Department has got a chance now to work on the MOU, mobilise all relevant departments, and set timeframes. He indicated that earlier in the engagements with the Minister it became clear there was no need to have a discussion with him because of the court judgement and Public Protector's report. The Committee was guided by these two judgements that came out. That was why the Committee could not engage with the Minister the way it done with the Oppenheimers. The Committee would finalise the draft report and circulate it to the members to ensure all items discussed were reflected in the draft report and put recommendations which take into account of the court judgement and Public Protector's report.

He stated the Committee has made recommendations about Visa Facilitation Service (VFS) in the BRRR that has already been adopted by Parliament. DHA report on litigation was different from what was presented earlier. The Department was being sued by others for a total of R507m. The OR Tambo Airport incident has been reported to Parliament because of its seriousness, the Speaker has already written to the SADC chairperson about it.

The meeting was adjourned.