Arms Deal Review: Briefing by Speaker Ginwala

Meeting report

STANDING COMMITTEE ON PUBLIC ACCOUNTS
29 January 2001
SPECIAL REVIEW OF STRATEGIC ARMS ACQUISITION: BRIEFING BY DR FRENE GINWALA, SPEAKER OF NATIONAL ASSEMBLY

Chairperson: Dr Gavin Woods (IFP)

Documents handed out:
Letter from Speaker to Deputy President Zuma of 29 January 2001 (See Appendix 1)
Letter from Deputy President to SCOPA Chairperson of 19 January 2001 (See Appendix 2)

SUMMARY
Dr Frene Ginwala, Speaker of the National Assembly, appeared before the Committee to give her view of the issues involved in the Standing Committee on Public Accounts investigation. She said the SCOPA investigation must continue. Dr Ginwala outlined the different requirements of accountability of the institutions involved, the Heath Special Investigating Unit and the Independent Directorate for Serious Economic Offences (IDSEO), bodies of the Executive, and the Auditor General and the Public Protector. She also outlined the responsibilities of SCOPA and those of Parliament in terms of the investigation. She said that while a Committee can engage researchers or other resources, it cannot subcontract its work.

The meeting closed after Chairperson Woods expressed on what points he takes issue with the Speaker. He disputed her suggestion that SCOPA had subcontracted its work and, most particularly, the possibility of the Speaker's suggesting that Chairperson Woods had exceeded his authority

MINUTES
[Editor's Note: What follows is an edited first person account of the meeting]

Dr Ginwala: Thank you for the opportunity to share my understanding of the legal and procedural issues involved in SCOPA's investigation. Parliament and SCOPA must continue their investigation into the arms deal. There is no question of not continuing with the investigation. SCOPA is expected to continue its work.

I have followed the reports since the hearings, and had meetings with Dr Woods and Mr Feinstein. Reports in the media say that evidence has been given to the Committee giving names of MPs allegedly involved in malpractice. Rule 36 of Parliament reads "if any information charging an Assembly Member comes before a committee, it must be forwarded to the Speaker without delay". Dr Woods has given copies of documents to me, but there was nothing of substance in those allegations, and therefore I found no reason to follow-up.

There are different forms of accountability for the four bodies named in the SCOPA report. The Heath Special Investigating Unit and the Independent Directorate for Serious Economic Offences (IDSEO) are bodies of the Executive, and so have different requirements of accountability than the Auditor General and the Public Protector.

Heath must report directly to the President as well as to Parliament. IDSEO reports to the Ministers and to the House. The Auditor General reports go to SCOPA, and also elsewhere. Parliament's instructions to the Auditor General must be mindful of the costs of the Auditor General's investigations. The Public Protector has a certain discretion that the others do not. Because of these different lines of report, one cannot assume that they report directly to Parliament. Parliamentary documents have a certain status, about which Professor F Haysom is now drafting a report.

Nothing stops these institutions from sharing information with SCOPA, but SCOPA must consider what information it shares with the institutions. Parliament cannot fund their investigations, nor can Parliament approach donors without the approval of the National Assembly.

Research support is available. An international forensic agency has to be approved by presiding officers. The chairperson of SCOPA understood this, and has so advised the agencies. The offer of research support has not been taken up. This investigation by SCOPA is crucial to the future of Parliament so we should be able to allocate resources to assist the Committee's work.

The SCOPA report adopted by the National Assembly is now a paper of the National Assembly. The Secretary normally sends these to Cabinet, with a cover letter from the Speaker to the relevant minister drawing attention to relevant details.

In November I did not write to the Executive because I did not see any specific action needed by the Executive. In December I re-examined the report, and again did not believe there was an instruction to the Executive. I issued a media statement to this effect on 27 December 2000.

As Speaker, it is my responsibility to look at the wording of reports and check what they actually say, rather than what they might have intended to say. The Speaker will not act on media reports. A Committee can involve agencies, but Parliament cannot instruct the Executive how to conduct and implement.

The Committee must sort out its intention in the original report, plus whether it intends to meet the ministers. SCOPA cannot subcontract its work to any of the four agencies, but it can ask for a researcher, outside lawyer etc.

The Deputy President's letter as Leader of Government Business was addressed to Dr Gavin Woods, but has been made public. The report adopted by the National Assembly needs to be followed-up. Parliament needs to reply to the Deputy President, and as Speaker I am therefore making my letter public.

[Dr Ginwala read her letter dated 29 January 2001 addressed to The Honourable Jacob Zuma, Leader of Government Business.
She noted at its conclusion that she would require a report-back from SCOPA on the issues referred to in her letter.]

Ms Taljaard (DA): I would like clarity on what timelines applied around the letter from Professor Haysom dated 27 November 2000? While noting the comments in the letter regarding the relationship between the Executive and Parliament, Section 55 of the SA Constitution would indicate a broader interpretation of the accountability of the Executive.

Dr Ginwala: There is no legislation regarding Section 55. The Heath Special Investigating Unit must account to the President and to Parliament on its report.

(Parliamentary Law Advisor): Parliament can call the Executive to account, but this does not mean giving it instructions. If Parliament wants to give instructions to the Executive, it must first pass legislation.

(Law Advisor): Remember, what is at issue here is a meeting of SCOPA with the investigative bodies on 13 November 2000, and the press conference later that day on behalf of the four units and SCOPA.

Dr Ginwala: Yes, I am aware of that meeting from press reports plus I met Dr Woods who advised me that the units were coming together.

Mr Smith (ANC): Are we asking questions of clarity, or interrogating Madame Speaker?

Ms Taljaard (DA): I refer to paragraph 5, page 2 of your letter in which you say "it is evident that there are differences among members of SCOPA on what the report was intended to convey". Do you mean that future relationships will depend upon how SCOPA recalls its intentions? Also, what legal opinion have you obtained regarding a closed meeting?

Ginwala: I don't think you have read my letter. The SCOPA report does not say how the wide-ranging investigation is to be conducted.

Mr Beukman (DA): I commend your strong emphasis on the role of Parliament. The Deputy President on page 8 of his letter declares that "SCOPA has seriously misdirected itself". Is SCOPA being pressed?

Dr Ginwala: My view is clear. SCOPA should come to me to complain if it feels it is being pressed. The President and others have all reiterated that SCOPA should proceed with its investigation.

Ms Taljaard (DA): I did not intend to suggest that the entire relationship between the Executive and Parliament hinged on one paragraph, but the spirit of the Deputy President's letter has a fundamental bearing on the 14^th report.

Dr Ginwala: I have read that there are differences within SCOPA that it must resolve.

Mr Nair (ANC): Would Advocate Meiring make available his legal opinion of 26 August 1999? That opinion was that not only is any report by SCOPA unenforceable, but that any resolution SCOPA may make also has no extra-Parliamentary effect. The Executive could either refuse to apply the recommendation, or accept it. The whole issue is whether the resolution had the force of law. Clearly it did not.

Chairperson Woods: Madame Speaker, it is regrettable that you haven't received Professor Haysom's views. There are very few things in your letter I take issue with; they are the following:
1. Media reports have said that SCOPA has stopped working, but in fact it
continues to work with the investigators. In view of this, your press statement and its references to non-issues strike an odd note;
2. Nowhere did we instruct the Executive. I am not sure whether you insist we have sub-contracted our work; and
3. Are you suggesting that I, as Chair, exceeded my authority? The Minister of Justice and the Deputy President picked up that very point. If they are wrong, please correct them. If not, the Committee must deal with me.

[It was announced that Mr Andrew Feinstein has been replaced by Mr Jeff Doig as the ANC's spokesperson on this issue.]

Appendix 1:
PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA

29 January 2001

To: Hon. Mr Jacob Zuma
Leader of Government Business

Dear Colleague

I acknowledge receipt of a copy of your letter dated January 19^th addressed to the Chairperson of the Standing Committee on Public Accounts. The Report to which you refer is a document of the National Assembly after it was adopted on November 3^rd, and I am responding to you as the responsible Presiding Officer.

Your letter raises issues of procedure on the conduct of relations between the Legislature and the Executive, as well as specific concerns of substance, and I will take the opportunity to address both matters.

I was pleased to note that in the President's broadcast, the statement by the Director General, and in your letter there are expressions of support for Parliament's constitutional responsibilities.

However, I am perturbed by the concerns you raise, and the National Assembly will need to consider them very seriously and rectify any problems. I would like at this stage to make some preliminary comments on some of the issues.

1. The Special Review by the Auditor General of the Selection Process of Strategic Defence Packages for the Acquisition of Armaments at the Department of Defence was correctly referred to SCOPA which has the responsibility to consider such reports and enquire into the issues that are raised and report to the National Assembly

In the Report adopted by the Assembly, SCOPA indicated it intended to pursue a number of issues on which it had yet to report. The Committee is continuing its work on these and will also consider and report to the National Assembly on the matters raised by the Executive that are within its competence.

2. On December 27th, I issued a statement on the Report as submitted by SCOPA and adopted by the National Assembly. [This statement is attached for your information.]

The Report adopted by the Assembly explicitly recommends "an independent and expert forensic investigation" for which the Committee will prepare a brief, and further ^"an exploratory meeting convened by the Committee" to which four named and "any other appropriate investigative body" should be invited. The Report does not recommend that any or all of these bodies must be included, nor does it refer to the procedural and constitutional issues that would arise should Parliament wish to involve or instruct either independent or executive agencies or organisations in its inquiries. [The opinion of the Law Advisor after we re-examined the Report is attached for your information.]

Had there been a recommendation that the Executive authorise the Special Investigative Unit or any other organ of the Executive, I would have immediately drawn the attention of the relevant Minister as has been our practice for over a year.

However, it is now evident that there are differences among members of SCOPA on what the report was intended to convey. If it deems it necessary, the Committee may pursue this and make a specific recommendation to the Assembly.

I want to take the opportunity to express my view, that it is within the competence of the Legislature after due consideration of the legal and procedural requirements, to make a recommendation to the Executive on areas within its jurisdiction, which the Executive may choose to accept or reject. Parliament's authority is persuasive. The Legislature cannot instruct the Executive, except to the extent that legislation it enacts defines and sets the legal framework within which the Executive undertakes its constitutional responsibilities. Parliament retains oversight over the manner in which the Executive and state organs perform their functions.

3. You have raised a number of serious concerns on the methods used by SCOPA, the perceived assumptions and the information on which conclusions have been based. I have no doubt that the Chairperson of SCOPA to whom your letter was addressed will have tabled it for consideration by the Committee. However, as the report was adopted by the Assembly, I am referring your letter to SCOPA and requesting the Committee to report to the Assembly on those issues that are within their competence and in particular on their investigations.

4. I had previously drawn the attention of the Chairperson of the Committee and Mr. Feinstein to Rule136 which states:
"If any information charging an Assembly member comes before a committee, the committee may not proceed upon that information, but must report it to the Speaker without delay."

Subsequently, the Chairperson sent me some documents submitted to the Committee in which reference is made to current and previous members of the National Assembly, but indicated that he did not consider that in themselves these provided evidence of misconduct. I have studied these, and agree that the allegations are not substantiated. Accordingly, I did not consider that there was a basis for referral to the disciplinary committee nor to an ad hoc committee of the House. Should evidence of misconduct by any member be submitted in future, I will act on it immediately, and as is customary, the House will be informed.

5. I can assure you that the Assembly, and all Members of Parliament are fully aware of their responsibility to provide the Police Service with any information on possible criminal activities. You have also requested SCOPA to provide you with particular information that it might have or acquire.

However, except where information and documents are submitted to a Committee when it meets in public, disclosure is governed by particular rules. If the public was excluded from a meeting of the Committee the evidence or a report or summary thereof may not be published or disclosed, except with the permission of the Committee, or by order of the Speaker, or by resolution of the Assembly. Further the permission, order or resolution authorising the publication or disclosure may provide that specific parts of, or names mentioned in, the document in question may not be published or disclosed.

If the evidence has not been made public, the committee could in its published report to the Assembly merely make reference to the type of evidence without providing names or details, and indicate whether it wishes to make this available to any other body for purposes of investigation. It is therefore possible to proceed without premature disclosure and compromising police investigations. The Law Advisors will work with the Committee on this matter.

6. Your concerns regarding directions to the National Director of Public Prosecutions and the South African Police Service are valid. However, the Chairperson is now fully aware that SCOPA cannot instruct any of the Investigating Agencies and has already informed the "Joint Investigating Initiative" of this. [Letter of 21 November attached.] Any requests for specific investigations required by the Assembly will be submitted through the appropriate channels.

7. I do not know what the view of the Committee has been on the offer of assistance to SCOPA by "an international accounting agency". However, when I learnt of this I informed the Chairperson of a decision of the Joint Rules Committee that all offers of support from outside of Parliament or the Executive, or requests for such support should be made through the Presiding Officers. No offer to SCOPA has been received or referred to my office.

I trust, Deputy President, that I have been able to clarify some of the issues, and assure you that the Assembly will address all the matters raised in vour letter.

In order to facilitate communication with the Executive and ensure that recommendations of the Assembly are considered timeously, I have for the past year been writing to specific members of the Executive drawing attention to reports and particular recommendations concerning their portfolios, and requesting that the Assembly be advised of action that is taken. This is in addition to the previous practice where the Secretary to Parliament sent reports and resolutions adopted by the Assembly to the Director General in the Presidency. The responses to the recommendations made last year are currently being reviewed and we will be following up on them.

We are all still developing our understanding and trying to give effect to the constitutional relationship between the Executive and the Legislature. We have appreciated the role you have played since assuming the responsibility of Leader of Government Business.

However, as recent events have emphasised, much still remains to be done, and we need to continuously review and improve the communication and relationship between the Executive and Legislature.

As your letter was widely distributed and made public, I will do the same with this response.

Yours sincerely
F.N. Ginwala
Speaker

Appendix 2:

DEPUTY PRESIDENT: REPUBLlC OF SOUTH AFRICA

January 19, 2001


Dear Mr Woods,

l write to you about the issue of the defence acquisition, which, unfortunately and unnecessarily has become a matter of controversy.

In this regard, I thank you for your letter to the President dated 8 December, 2000, with whose authorisation I am sending this communication to you.

The Executive has no desire to fuel controversy. However, we are obliged to defend the integrity of government.

I enclose for your information two documents, these being:

1. The January l2, 2001 Government Statement of the Defence Acquisition; and
2. The January 15, 2001 letter to the President of the Minister of Justice on the issue of the "Heath Unit".

From these documents, you will see that the Government contests the conclusions arrived at by the Auditor General and SCOPA.

Furthermore, we are convinced that, in addition to the requirement for us to respect the decision of the Constitutional Court, there is no need for the "Heath Unit" to be involved in any "investigation" of the defence acquisition.

We do not understand why you, presumably on behalf of your parliamentary committee, suggest that we should ignore the decision of the Constitutional Court on the ^"Heath Unit".

The reasons for granting the Executive and the Legislature a period of a year to sort out this matter are clearly set out in the Constitutional Court judgement.

Throughout the judgement, the Court makes it clear that by granting a one year 'grace' period, it wishes to protect the Unit's work that is "being done". t refers to "persons being investigated". It further stated that Judge Heath "continues temporarily to be head of the Unit until appropriate arrangements are made for his replacement."

With regard to this last point, the President of the Constitutional Court, speaking on behalf of the Court, said:

"Although there may be reasons for allowing sufficient time for all matters to be dealt with simultaneously, there are good reasons for the first respondent's (Judge Heath) position as the head of the SW to be regularised without undue delay."

In other words, the Constitutional Court required of us that Judge Heath be relieved of his duties without undue delay

You will also have seen that during the course of his judgement, the President of the Constitutional Court makes the following observation, concerning the uncompleted work of the SIU:

"The SIU is currently engaged in investigations into approximately 100 organs of state said to involve 22l580 cases. The investigations extend over all 9 provinces and include 12 national investigations."

By any account, this is a very considerable volume of work that is currently being handled by the SIU. As Minister Maduna has indicated, it would clearly be absurd and illogical for additional work to be given to this Unit, if this was legally possible.

In the light of everything we have said above, we find it very odd indeed that the Auditor General, according to your letter, is also keen that we act without reference to the decision of the Constitutional Court.

Let me also mention that we find it strange that a parliamentary committee (SCOPA) considers expenditure for the acquisition of defence equipment as a "major diversion of public resources…" requiring to be balanced by a "social payback".

As parliamentarians you must surely be aware of our common Constitutional obligation to maintain a national defence force, which, according to the Constitution, shall have the "primary object":

"to defend and protect the Republic, its territorial integrity and its people, in accordance with the Constitution and the principles of international law regulating the use of force."

In addition, this expenditure was considered by the parliamentary Defence Committee and approved by parliament

I would also like to deal with other matters of grave concern to our Government, including the President,

The first of these arise from the Report of SCOPA which was accepted by the National Assembly on November 2, 2000.

The critical issue in this regard is that SCOPA states that it is interested to carry out an investigation because our Government, foreign Governments and the prime contractors, major international companies, are prone to corruption and dishonesty.

If this is in fact the starting point for SCOPA, it seems that the investigation you seek is tantamount to a fishing expedition to find the corruption and dishonesty you assume must have occurred.

To illustrate these assertions, let me quote some passages from the SCOPA Report.

"By many accounts the international arms trade industry experiences a high incidence of malpractice, with purchasing countries often having been the victims of very costly exploitation. With this in mind, the Committee has considered the transactions and the broader financial and fiscal implications pertaining to the recent South African arms purchases."

Who gave what accounts to SCOPA?
Further the Report states:

"With international armaments markets having…recovered, the Committee fears that the large commitments by suppliers might now be resisted and even reneged upon. With South Africa unlikely to be a serious arms purchaser over the next few decades, this possibility needs to be watched closely."

What study has SCOPA done which shows the recovery of the international armaments markets and the possible response of the 'suppliers' to this development?

Further the Report says:

"Because of the possibilities of improper influence having been exerted in certain of these selections, further investigation is considered necessary."
What assessment did SCOPA carry out to establish the existence of these 'possibilities', which are these selections and why them and not others?

Further_, again, the Report states:

"The Committee is concerned about the possible role played by influential parties in determining the choice of subcontractors by prime contractors."

What work was done by SCOPA to establish that there was a possible role by which influential parties? Do these include members of the Government? Which prime contractors and which subcontractors would have been influenced by these influential parties?

Further still, the Reports asserts:

"The government-to-government agreements, which make references to NIPs commitments, while noble in intent and of some influence in official international communications, have questionable contractual or legal standing."

What is questionable about these agreements? What is meant by "some influence in official international communications"? Is the suggestion being made that the Governments entered into meaningless agreements only for propaganda purposes? If this is so, on what basis is this allegation being made?

The seriousness with which you take your assumption that our Government, the trans-national corporations and foreign Governments are prone to corruption and dishonesty, is illustrated by the steps you have taken to ensure that investigations take place.

As you know, the acquisition process was led by a Ministerial Committee, which was chaired by the then Deputy President. The committee reported to the Cabinet. The Cabinet gave final approval for the acquisition.

This Committee dealt with the prime contracts and not the subcontracts which are a matter between the prime contractors and whoever they subcontract to.

The members of the Cabinet Committee were the then Deputy President_, Thabo Mbeki, and Ministers Joe Modise, Trevor Manuel, Alec Erwin and Stella Sigcau.

The prime contractors are Blohm + Voss, Thompson CSF, Ferrostaal AG, Thyssen Nordseewerke GmbH, Agusta un'Azienda FINMECCANICA S.p.A, British Aerospace, British Aerospace (SAAB) and others, all of which are well-known and prestigious international companies.

The foreign governments involved are those of the UK, Sweden, Germany and Italy.

Your assumption of corruption and dishonesty is therefore specifically directed against these personalities, governments and corporations.

Natural justice demands that you both substantiate the allegation that the persons, governments and corporations we have mentioned are prone to corruption and dishonesty and provide even the most rudimentary or elementary evidence that any or all of these acted in a corrupt and dishonest manner.

I believe that it is a most serious matter indeed for our parliament or any section of it, to level charges of corruption against foreign governments and corporations without producing evidence to back up such allegations.

All of us have a duty to build friendly relations with the peoples of the world. We cannot achieve this by arbitrarily and falsely presenting these in the negative light that some have defined as being their duty with regard to our Government and country.

Least of all can it be the task of our Parliament to act in this manner.

As we have said, it is clear from your Report to parliament that you have a significant amount of written information in your possession and, presumably, other evidence.

This should enable you to present the information and evidence we suggest you present, substantiating the extremely damaging assumptions you state in your Report to parliament.

Obviously, should you have any evidence indicating possible criminal misconduct on the part of any of the individuals and corporations I have mentioned, you should hand it over to the Police Service.

In this regard, I also believe that any information you may have on Members of parliament, including Ministers who are members of the National Assembly, should immediately be brought to the attention of the Speaker.

The rules, I believe, prescribe that any investigation pursuant to this information would not fall within the competence of SCOPA.

You may also wish, as you inform the Speaker, to request her to take steps to ensure that the country is influenced about the alleged misconduct, provided that this is legal. We would have no problem with that to the extent that it relates to members of the Executive.

The next matter I would like to raise concerns the interaction between SCOPA and the Executive on the issue of the defence acquisition.

SCOPA has proceeded to reach conclusions on this matter without having heard the Cabinet. This is despite the request the Ministers made to meet SCOPA.

As you can see from the documents we have enclosed, we are of the firm view that because this meeting did not take place, SCOPA has seriously misdirected itself and thus arrived at decisions that are not substantiated by any facts.

It is difficult to understand how SCOPA could have gone as far as it has, investigating a decision taken by the Cabinet, without asking the people who took the decision any questions that SCOPA might have felt they should ask.

We hope this strange manner of proceeding was not driven by a determination to find the Executive guilty at all costs, based on the assumption we have already mentioned, that the Executive is prone to corruption and dishonesty.

It might be necessary that both the Legislature and the Executive try to draw the necessary conclusions from this experience, to ensure that we do not repeat the obviously wrong things that have happened during the handling by parliament of the defence acquisition issue.

In the meantime, I believe that those who occupy positions of leadership in parliament, including yourself, will have to make the matter clear to parliament as a whole, why it is that at least SCOPA believes that the Executive is prone to corrupt and dishonest practice.

As you are aware and as Minister Maduna indicated in his letter to the President, in her public statement issued on 27 December, 2000, the Speaker of the National Assembly, the Hon Frene Ginwala, makes the following comments:

"The Speaker is not aware of any resolution of Parliament or the National Assembly instructing the President to issue any Proclamation regarding the work of the Heath commission. Any such action would be of dubious legal and constitutional validity."

Further:

A Committee of the National Assembly has no authority to subcontract its work to any of these (investigative) bodies, or require them to undertake any particular activity, or to report directly to the Committee. Nor are Chairpersons expected to act on major issues without the agreement of the Committee. Such direction as the Assembly may wish to give would require specific referral by a resolution of the National Assembly, and be subject to the procedures provided in relevant legislation."

In his letter to the President, Minister Maduna reports that you informed the investigative units that SCOPA was in contact with a foreign "forensic accounting facility" that could draw up the terms of reference of the investigation you seek.

We must therefore include this unnamed "facility" among the bodies which, according to the Speaker, cannot be subcontracted by SCOPA.

From the statement of the Speaker it is clear that your letter to the President was ultra vires. This is true of any action you might have taken to cause any investigative unit to carry out any investigation.

This has put the Executive and its organs in an embarrassing situation, to the extent that you, and others, have conveyed the false information that the National Assembly had requested that various organs should carry out an investigation.

It is therefore necessary that specific steps be taken to correct this situation, to ensure that all of us, including SCOPA and you, respect the rule of law.

There is an additional matter I would like to raise with regard to your communication dated 21 November, 2000, to the "Joint Investigating Initiative", in which you mention the "international forensic accounting facility".

In this letter you say:

"Against uncertainties created through the media last week, of possible interference in the investigation by government, it was felt appropriate to mention this offer as a possible means through which SCOPA could assure the public of a comprehensive investigation."

According to this statement, because of what the press said, you became so fearful of possible government interference that you felt that you should accept the offer made by some "international facility".

Seemingly, this "facility" made its offer just on time to provide a way out of the "uncertainties created through the media"!

You were quite happy to accept the judgement of the media about the intentions of the Government. This was presumably because, as we have said, you know that the Government is prone to corruption and dishonesty.

Accordingly, according to this view, the Government must be assumed to have acted corruptly with regard to the defence acquisition, and would therefore, naturally, seek to cover up its misdeeds!

Whatever you say about our own investigative units in your letter to then, you also felt that they did not enjoy sufficient credibility with "the public" to be able to reassure this "public" of the integrity and honesty of the investigation, if the foreign "facility" was not involved in the investigation.

On what information do you base this assessment of the Auditor General, the Public Protector and the National Director of Public Prosecutions, all of whom have been confirmed in their positions by parliament?

I am certain that all these matters will need to be explained, including who this "facility" is, with whom they have discussed and when, why they felt that they should set the terms of reference for the inquiry you seek_, who felt it appropriate to mention the offer to the investigative units, and so on.

I am not raising these questions so that you should report to the Executive. I mention them because they cause grave concern to the Executive, which is interested to hear straightforward answers.

Parliament will have to deal with these and other questions, as we have to respect the principle contained in our Constitution of the separation of powers.

In your 8 December, 2000 letter to the President, urging the involvement of the "Heath Unit" in the investigation, you say:

"SCOPA's reasons for including a role for the Special Investigations Unit (SIU), as one of the investigating parties, related to the SIU's particular powers and areas of competence and its relevant experience. It was apparent to us that the comprehensive investigation advocated would be weakened by its absence - mainly due to its authority in civil type actions and the role which could be played by its special tribunal arrangement."

I am certain that you are aware of the fact that in his letter to Minister Maduna, dated November 22, 2000, the Public Protector said:

"With regard to the application for a proclamation by the SIU, I am of the opinion that such a proclamation is not necessary at the present juncture…

"There is no evidence of any unlawful appropriation or expenditure of public money and accordingly no need for the SIU to recover any assets or public money;

"The application by the SIU, is based primarily on the Special Review by the Auditor-General and does not raise any new evidence…

"I believe that such a proclamation by the President, is not necessary at this stage and that the application be pended for consideration by the President at a later date, if necessary."

I am also certain that you are familiar with the decision of the Constitutional Court, which contained the following view:

"The functions that the head of the SIU (Judge Heath) has to perform are executive functions, that wider our system of government are ordinarily performed by the police, members of the staff of the National Prosecuting Authority or the state attorney."

It is clear that you disagree with the views both of the Public Protector and the Constitutional Court, believing that there are public funds to be recovered and that neither the police, nor the Prosecuting Authority nor the state attorney have the same competence to act as does the SIU.

Accordingly, with regard to the paragraph of your letter to the President quoted above, it would help us enormously if you favoured us with a response to the following questions:

(a) what are the particular powers, areas of competence and relevant experience to which you refer, distinct from the powers, area of competence and relevant experience of our judiciary?

(b) in what way are the competencies mentioned under (a) above especially relevant to the determination of the truth about the defence acquisition, which determination of the truth would be weakened by the absence of the SIU?

We have publicly indicated our desire and willingness to have some of our Ministers meet SCOPA. I trust that, this time, this will actually take place.

Further, to enable us to give the proper and necessary direction to the National Director of Public Prosecutions and the South African Police Service, I request that SCOPA indicates to me the specific matters it wants investigated and why, providing the prima facie evidence which it believes justifies this investigation.

As of now, we do not have this prima facie eyidence and are completely at a loss as to what the loudly proclaimed wrongdoing consists in.

Parliament is, of course, at liberty to interact with the Public Protector and the Auditor-General as it wishes.

Let me reiterate the commitment contained in the attached statements, that the Executive would co-operate fully with any investigation necessitated by information that suggests that corruption might have occurred in the process of the defence acquisition.

Whoever has such information should make it available to any investigate unit of their choice, the Executive, as well as the general public, if they so wish.

The Government will also act vigorously to defend itself and the country against any malicious misinformation campaign intended to discredit the Government and destabilise the country.

I would like to inform you that copies of this letter and the enclosures will be sent to:

(a) the Speaker of the National Assembly;
(b) all members of SCOPA;
(c) the heads of the investigative units, including the SIU;
(d) the Chairpersons of the Defence, Trade and Industry, Finance and Public Enterprises parliamentary portfolio committees, as well as the parliamentary Audit Committee;
(e) the principal contracting companies;
(f) the relevant foreign governments; and
(g) the media.

The President has asked me to assure you that he did, indeed, give urgent attention to your request, as you asked.

Similarly, he and I respectfully request that you give urgent attention to all the matters raised in this letter.


Yours sincerely,
JACOB G. ZUMA
Leader of Government Business.


The Hon Dr Gavin Woods
Chairperson
The Standing Committee on Public Accounts
National Assembly
Cape Town