Intended Arms Deal Investigation :
The Interventionist Causes
of its Failure
After a relatively short but
intense investigation into the “Arms Deal” in October 2000,
SCOPA produced it’s 14th
report in which it recommended a
range of related areas for further study and investigation.
Here it required that :
- certain aspects of the arms deal
be investigated by a joint investigation team (JIT) comprising a
number of specified investigation-type agencies
- others areas be investigated by SCOPA itself
(under Section 56 of the Constitution)
- a particular exercise be undertaken both by SCOPA and
the Auditor General.
The 14th report
intended that the combined findings of
these exercises be brought together in a final SCOPA report
which would offer Parliament and the public comprehensive answers to
matters of concern which were in the public domain.
Based on these findings, the
report would have made recommendations covering any problems identified – both
in dealing with these problems and in avoiding such problems in the future.
Through the adoption of its
“final report” on 11 December 2001, SCOPA has now formally ended its work on
the arms deal (see note at end of paper), and in so doing has stopped
considerably short of meeting its obligations
(see Gavin Woods’ paper on the JIT report), . This failure is directly
attributable to :
- SCOPA reneging on its undertaking to parliament (and
thus to the South African public) - to undertake further investigative work
- the JIT, as per its final report, producing
significantly less relevant and less conclusive findings than was required.
The purpose of this paper is to
indicate what caused these two
areas of failure, which in turn prevented
SCOPA from producing a comprehensive final report concerning the country’s
single largest instance of public spending and concerns related thereto.
The explanation given in this
paper will suggest that the failure in question is not due to inability or
incompetence on the part of SCOPA or the JIT.
Rather that it was most
likely due to a sequence of interventions which hampered, discouraged and indeed
blocked the intended investigations from achieving the more substantive “final
report” SCOPA had promised. These
interventions are explained under the following headings:
- Interventions which led to the exclusion of the Heath
Special Investigation Unit (HSIU)
- Interventions by members of the Executive which
affected SCOPA’s work
- Interventions which affected SCOPA’s relationship
with the JIT
- Interventions by Senior ANC office bearers which
affected SCOPA’s work
- Other interventions which discouraged SCOPA from
continuing with its arms deal work.
- Interventions which have been used with respect to the
JIT report to end SCOPA’s arms deal work.
i. Interventions which
led to the exclusion of the Heath Special Investigation Unit (HSIU)
capacity, experience and capability was seriously reduced by the absence of the
HSIU. As was demonstrated in an
earlier paper (“The correct interpretation of SCOPA’s 14th
report” – 14/02/01) it was SCOPA’s intention that the HSIU be part of the
JIT. At the time of writing the 14th
report a study was undertaken which clearly indicated the necessity of
the HSIU’s involvement (amongst others). Similar opinion was later also
the remaining three members of the JIT (AG, PP, DoPP) at a meeting
held in Pretoria on 13/11/00 (see notes of meeting).
the Auditor General in a letter to the Chairperson of SCOPA (dated
members of the Auditor General’s team when relating the
purposeful and clear thinking shown by the HSIU at the initial discussions held
between the four agencies.
by advocates Jan Lubbe and Frank Kahn in their report to the
President which said “it is imperative that all the agencies referred to in
SCOPA’s 14th report should be involved”.
Vital to the
overall investigation was the intention expressed to Gavin Woods and Andrew
Feinstein by a number of anonymous government officials and by two
bidders for prime contracts
and by a sub-contractor, that they
wished to testify/ volunteer information to the HSIU.
Certain of these parties wished to engage in civil proceedings through
the Special Tribunal facility, which was a facility exclusive to
the HSIU. The completed JIT
investigation is most certainly poorer for having been denied this additional
information/evidence, as it was poorer without the additional legal powers and
experience unique to the HSIU.
The reason for
the HSIU’s omission from the JIT resulted from the President’s refusal to
grant the unit a proclamation to proceed. The
President’s decision was ostensibly informed by the following interventions:
- The abruptly revised wishes of the Public Protector
(PP) and the Director of Public
Prosecutions (DoPP) in their letter to the Minister of Justice on 22/12/00).
i.e. to now exclude the HSIU. (i.e. after agreeing to the HSIU involvement
at the 13/11/00 meeting).
- The Speaker
of the National Assembly who, through a surprise press statement on
27/12/00), adopted an interpretation of SCOPA’s 14th report
which distanced parliament from any wish for the inclusion of the HSIU in
the JIT. This position was
taken by the Speaker without conferring with the Committee as to the
intention of their report.
- A Constitutional Court ruling (10/01/01) - which was
later shown (by every independent legal opinion made public) to have no
bearing on any Presidential
decision to agree to a HSIU proclamation. The report which was used by the
Minister of Justice had no connection to the arms deal.
- The Minister of Justice then wrote to the President
(15/1/01) recommending that the HSIU not be included in the JIT.
He made strong use of the above opinions of the PP/DoPP and the
The Speakers position was used to advise the President that he would
not be in disagreement with Parliament
if he were to refuse the HSIU proclamation.
ii. Interventions by
members of the Executive which affected SCOPA’s
- The calling of the ANC component of SCOPA to a meeting
of the ANC’s governance committee in early November 2000 where, amongst
other issues, the Minister in the Office of the President severely berated
them for passing the SCOPA resolution which called for the joint
- The calling of the ANC component of SCOPA to Tuynhuis
by members of the executive on 14/11/00 to further challenge SCOPA’s
intended investigation and to discourage ANC members from any meaningful
- Over the course of the first half of the 2001 year
there were a number of further interventions - in which members of the
executive instructed ANC members of SCOPA on arms deal related issues.
In fact, before any decisions on such issues were taken by the ANC
component of SCOPA they were first to be approved by their Chief Whip or by the Executive members concerned. ANC members often
openly referred to the need to first “check with their Principals)
- Of particular influence was the press release by four
members of the Executive on 12/01/01
(Ministers of Trade and Industry, Finance, Defence and Public Enterprises).
Here they set out to discredit
SCOPA’s 14th report by attributing to it “inaccurate assessments”, “erroneous
views”, “it being exceedingly misleading”, “stretching credulity”,
“its ill-informed conclusions”, that
SCOPA had “now fuelled unwarranted speculation and assertions in the
public domain” etc.. In
effect, the ministers were saying that the proposed investigations were
based on ignorance and therefore were
inappropriate and unwarranted. This further added to the dilemma of ANC
members in SCOPA. They would
not support the Chairperson’s call to defend the integrity of the
Committee’s report and thereafter refused to engage any further work on
the arms deal. Notwithstanding
that the 14th report had been adopted as a report of the National
Assembly, the Speaker choose not to take up this extraordinary attack by the
Executive on the work of Parliament.
It should also be noted that the subsequent JIT report shows there to
have been substance to the 14th report issues that were dismissed
by those members of the Executive.
- Three of these ministers then appeared before
Committee on 26 February 2001 for discussion on the arms deal.
An hour before this meeting the ministers met secretly with the ANC
members of the Committee. The
strategy, as was then played out, was for ANC committee members to
ask questions proposed by the Ministers and to attack the Chairperson and
any opposition member who voiced any criticism of the arms deal.
(see meeting transcripts)
- In similar vein was the intervention by the Deputy
President who wrote a very hostile and improper letter to Gavin Woods (the
Chairperson of SCOPA) in his personal capacity in which he too attempted to
discredit the 14th report and the investigation it recommended.
The Speaker then acted as if the
letter was addressed to SCOPA and
engaged herself in correspondence with the Deputy President on the
matter seemingly as a damage control exercise This
pushed the ANC component of SCOPA further into inactivity.
- The Committee’s 2nd
arms deal report (30/05/01).
Andrew Feinstein’s public assertion that the report was substantially
altered by members of the Executive before it was presented to SCOPA has
gone unchallenged. When
forcefully voting this report through, the ANC rejected
the contributions of the three opposition parties (DA, IFP and UDM)
– even refusing to accommodate minority views, as is allowed by the rules
of parliament. The report
itself carefully avoided the
issues which the Executive had objected to in the 14th report –
but on the other hand did make apologetic reference to the 14th
report as having been “unintentionally” offensive towards the executive.
iii. Interventions which
affected SCOPA’s relationship with the JIT
- The Speakers
press statement (27/12/00) implied that
SCOPA intended having an inappropriate relationship with the
components of the JIT. She
ignored the SCOPA press statement released by Gavin Woods and Andrew
Feinstein (drafted with the assistance of Professor Fink Haysom)
on 21/12 /00 which explained SCOPA’s position on this very issue.
She, as well as the JIT, also ignored the SCOPA Chairperson’s
explanation (letter 18/02/01) that only an informal level of communication
was intended between SCOPA and JIT in
order to monitor whether their respective investigations were together
leading to comprehensive coverage of the
He referred to Professor
Fink Haysom’s written legal opinion that
the proposed arrangement would not be inappropriate. (Ironically, in late
2000, before the intervention of the Executive, it had been the ANC
component that had been most insistent on a close relationship with the JIT.)
The effect of the Speakers intervention opened the way for a total
break down in communication between SCOPA and JIT.
- It was later established that at the same time as
deciding to go back on their agreement
concerning the HSIU’s desired involvement (only five days after
making it on 13/11/00), the Public Protector (PP) and National Director for
Public Prosecutions (NdoPP) at the same time decided to go back on their
undertaking regarding the communication arrangements they had reached with
SCOPA. The interventions which
led to this can only be speculated about. It is, of course, now public knowledge that the JIT met
with the President and particular members of cabinet on more than one
occasion and that the investigation was discussed in a meeting between the
Auditor General and the same parties in
- The Auditor General went even further by forbidding
his staff from communicating with SCOPA on the arms investigation. He took
his mistrust of SCOPA even further by telling its two most senior
members (Gavin Woods and Andrew Feinstein), not to communicate with key
office on the matter (see correspondence confirming this).
An explanation of who or what motivated this intervention of his has
proved elusive. It is also
worth noting that the two key staff members in the Office of the Auditor
General were removed from the investigation for reasons that have never been
- The only follow-up meeting (in terms of the original
arrangement) between JIT and SCOPA took place on 7/02/01. None of the heads
of the JIT components attended - only representation from the Auditor
General’s office who provided a poor briefing which was ignorant of key
aspects of the issues. Members of the Auditor Generals office advised that
the PP and NDoPP were not in favor of the meeting.
- On 8/5/01 the
ANC rejected a Raenette Taljaard (from the DA) proposal to call the JIT to
give SCOPA an updated report in May 2001.
- At the end of June the ANC then rejected the SCOPA
Chairpersons call for JIT to appear before SCOPA in July – as had been agreed to in February 2001. At
the same time the ANC decided that no further communication with the JIT was
necessary – that SCOPA should just wait for the JIT’s
As is very apparent from Gavin
Woods’ critique of the JIT report (see paper), the absence of any
communication between SCOPA and the JIT has allowed
the JIT report to fall far short and for off course of the work SCOPA had
hoped the it would otherwise have produced.
iv. Interventions by Senior ANC office bearers which affected
- ANC members of SCOPA were called to a meeting in Cape
Town on 21 and 22 of February 2001. Senior members of the ANC whippery gave
the members instructions on their short term involvement in SCOPA and the
arms deal. The Speaker and Chairperson
on the NCOP were present with the latter participating actively in the drafting of an
ANC press statement which rejected the inclusion of the HSIU in the JIT.
- At an especially arranged press conference on 29
January 2001, the Chief Whip of the ANC Tony Yengeni said “As it was the
ANC government that was under attack, it was imperative that the lines
between the ANC members in SCOPA and the ANC leadership be strengthened.”
He also announced that the ANC component of SCOPA was being
strengthened so that “the ANC from the President downwards, could exercise
political control”. Nothing would go from the Committee to the plenary of
the National Assembly without first going through the caucus, and leaks
would be investigated. (see Sunday Times 4/02/01).
- Andrew Feinstein who resisted the growing pressures to
weaken the investigation as was recommended in SCOPA’s 14th
report was then relieved of his
position as leader of the ANC component of SCOPA.
- The ANC introduced new “political players” into the committee in order to
thwart the Committee’s oversight activity over the arms deal. A strong
representation from the ANC whippery were brought into the Committee i.e.
Geoff Doidge, Neo Masitela and Andries Nel as well as Thabang Makwetla, the
Chairperson of the ANC parliamentary caucus. Existing members became far more politically partisan
and aggressive in the way they conducted themselves in SCOPA meetings (see
transcripts of meetings). Most of these members have continued to show
little initiative regarding matters of public finance but are very
conspicuous in the ANC’s political management of the Committee. Understandably,
the leadership instruction to the ANC members of SCOPA to defend the
party’s interests almost immediately spilt over to Committee work which
did not concern the arms deal.
- On occasions politically senior ANC members who are
not members of SCOPA are seen to be involved in developing strategic
approaches used by the ANC in the Committee. e.g. Yusuf Surtee, John
Jeffrey, Johnny de Lange.
- This has resulted in the ANC using their majority to
vote through arms deal related positions – which is in contrast to the
non-partisan consensus type decision-making that had characterized the
committee since 1994.
- For the better part of the year there were on-going
interventions/instructions by the then Chief Whip Mr. Tony Yengeni.
These included attempts to intimidate Andrew Feinstein and others in
the ANC component into dealing with the arms deal as an internal ANC matter
rather than a public Parliamentary one.
v. Other interventions
which discouraged SCOPA continuing its arms deal work
In compliance with instructions
given by the party, and mindful of
the earlier anger expressed by at least six powerful members of the Executive (Zuma,
Erwin, Essop Pahad, Manuel, Maduna, Lekota), the ANC component
increasingly took it upon itself to prevent SCOPA taking any initiative
on the arms deal matter. As examples of
- Even though a substantial amount of documentation
which was essential for an understanding of the arms transactions
was available to the Committee, the ANC made almost no effort to
interrogate these documents or to show any other interest in the facts of
the arms deal issues. Only the Chairperson and the DP representative, Raenette
Taljaard continued to try and
investigate this biggest ever matter referred to SCOPA.
- Attempts by the chairperson to meet the 14th
report’s obligations for further SCOPA investigation were blocked by the
ANC saying that SCOPA did not
have the capacity to do this work. Considering SCOPA’s low level of
productivity over the 2001 year their reason is at best disingenuous.
- The Chairperson’s plea that the Committee request
further essential documentation from the Departments of Defence and Trade
and Industry - for ongoing
investigation was also rejected by the ANC. He then requested this documentation in his capacity as
a M.P. – but after some delay was refused by the respective Accounting
- As is apparent from almost all verbatim transcripts of
SCOPA’s 2001 meetings, the ANC has pursued particular tactics when ever it deals with any difficult
arms deal related matter (These tactics increasingly became used to
deal with other SCOPA issues (i.e. non-arms deal matters) where there was a
possibility that these issues if pursued might embarrass individuals with
ANC links such as Cabinet Ministers and senior government officials).
Certain of these negative tactical interventions are employed by particular
ANC members. For example, and as pointed out by IDASA, one particular member
uses a filibustering technique which causes a meeting to lose direction and
causes issues to remain unresolved. The
transcripts also show how another member, on as many as 40 occasions in the
2001 year, would intervene
to suggest that the Chairperson should be running the meeting
differently. A third particular
member’s regular interventions are to
contrive explanations which justify
ANC positions and refute opposition positions. He does this
by fabricating disjointed arguments built around a selected reference
from a previous discussion. These “explanations” which invariably attack
the Chairman of the DP representatives person are usually lengthy as the member in question contrives to construct his
vi. Interventions which
have been used with respect to the JIT report to end SCOPA’s arms deal work
A number of
interventions took place once the JIT final report was tabled in Parliament on
14/11/01. All of these strongly
suggested a determination on the part of senior ANC leaders to use the occasion
in a way which would discourage any further parliamentary oversight over the
arms deal and related matters.
- High publicity was sought through an unprecedented
event which was staged in the National Assembly. This comprised a
presentation of the JIT report’s main findings by the heads of the JIT
- The much emphasized departure point of the
presentation was the strange assertion that the Government (as in Executive)
had been cleared of any wrong doing. As the Executive
had never been accused of wrong doing,
it seemed to have been planned for national psychological impact .
- The President, the Deputy President and at least 4
other members of the executive spontaneously seized on this
“exoneration” and made
public statements saying that the arms deal saga was now closed. They said
that anyone who wishes to perpetuate arms deal related issues
were driven by
a range of dishonorable motives, including racism. At least two
members of the executive suggested that there should now be a witch hunt to
find and deal with those who had suggested
impropriety in the arms deal. It is not clear why the JIT and the
Executive placed the emphasis on the Executives exoneration.
- The speaker then distributed the JIT report to seven
different parliamentary committees - thus diluting SCOPA’s
role in processing the JIT report which
it had called for. She
used very superficial reasoning for her decision and it is doubtful whether
she sought any informed advice on the issues at stake. As can be seen from
the resultant reports produced by the other committees and the paper on the
uncompleted arms deal work, her decision had little oversight merit as none
of these other committees (besides the Defence Committee which had a related
interest) had had any dealings with arms deal matters. She has now
inadvertently established a
logic, which if applied in
future, would meant between 3 and 6 committee’s having to deal with each
of the 160 Auditor General’s reports which are produced each year.
- This situation expediently led to an
arrangement where SCOPA and the other 6 committee’s were instructed
(via the Speaker) to participate in a joint hearing with the JIT on 4 and
5/12/01. The hearing failed to
produce any quality interaction as was demonstrated by the media’s lack of
coverage. The “independent” chairpersons were not able to facilitate
meaningful discussion because they lacked understanding of the issues. Their
mechanical routine of taking 6
(mostly unrelated) questions at a time and their not being aware of the
JIT’s many evasive answers meant little meaningful scrutiny over the many
important issues was possible.
- It was hoped that SCOPA would have had a separate
opportunity to discuss the
reports issues with the JIT
(most of which arose from SCOPA’s research for its 14th
report). The ANC in SCOPA did
not want such discussion. It insisted that only the JIT’s
“recommendations” should be discussed. They took the position,
that to discuss the actual investigation and the findings of the JIT, would
be inappropriate as it would amount to a questioning of
the competence and integrity of the JIT bodies.
(see transcripts 21/11/01).
- Consistent with the demands of the Executive, the ANC
unilaterally decided to impose
a final report on the Committee in order to close the door on the arms deal.
As per meeting insisted on by the ANC on 11/12/01).
This was done notwithstanding the protestations of the opposition
parties who indicated that there was much work yet to be done. (See *
“Ending of SCOPA’s work” below).
interventions, when brought together in a single paper, reveal just how
consistent these all with a single purpose – i.e. to discourage the
investigation into the arms deal achieving the scope and depth recommended in
SCOPA’s 14th report. These
interventions have therefore achieved that purpose. (See Gavin Woods critique of
the JIT investigation).
observers of SCOPA’s difficult 2001 year are be aware, it was these
interventions and the conflict they caused which in the main led to the
discordant relations and dysfunction within the Committee. This in turn led to
the Committee performing significantly worse than any other year since 1994.
On the one
hand a very small minority (one or two individuals) contested these
interventions as being contrary to SCOPA’s oversight responsibilities - while
on the other hand the overwhelming majority in the Committee used their numbers
to ensure that Party political short-term interests came first. The future
ability of the committee to conduct its work in a fair and balanced manner is
now under question.
The ending of SCOPA’s arm deal work
the Business Day of Tuesday 11 December 2001, Mr. Vincent Smith of the ANC
stated that the ANC was totally
opposed to any further inquiries by SCOPA into the arms deal and that the ANC is
very determined to conclude this matter by Wednesday (12 December 2001).
He said anything else must be dealt with outside of the committee.
The ANC position stated by Mr. Smith was of course consistent with that
of senior party leaders who had demanded that the “arms deal controversy now
be put behind us”.
the very same day the ANC presented
a draft report to the
Committee for adoption. (Note: there was no obligation on SCOPA to produce a
report at that stage) The draft
report in every sense indicated finality of SCOPA’s arms deal work - which of
course was in keeping with the above stated ANC position. The DA, IFP and UDM
opposed the report on the basis of its content and its intention to prevent
SCOPA from dealing with very important outstanding arms deal matters.
try and avoid the possibility of bad publicity were they seen to be steamrolling
through a final report which would force closure on the arms deal, the ANC
refused to admit or deny that the report was intended as SCOPA’s “final”
report. As the transcripts of
the meeting show, the question was put to them on six occasions.
A study of these transcripts shows that notwithstanding the obfuscatory
tactics employed they inadvertently confirm it to be the “final “ report.
They even go as far as suggesting that there was no need for further work
by SCOPA as certain other
portfolio committees could be monitoring one or two on-going arms deal issues
(see other committee reports) and as
the Director of Public Prosecutions would be continuing with related criminal
investigations. The gross inaccuracy of this suggestion is exposed by
Gavin Woods’ paper which
critiques the JIT’s work.
report was duly voted through by the ANC majority and is now
SCOPA’s “final” report
– suggesting (falsely) that SCOPA’s has fulfilled its responsibility to
Parliament and the South African public.
importance of the point being made here is that after
blocking SCOPA from undertaking its obligatory investigative work (see 14th
report) during 2001, it had now succeeded in preventing it altogether.