Gavin Woods
January 2002

INTRODUCTORY COMMENT

After a relatively short but intense investigation into the “Arms Deal” in October 2000,  SCOPA produced it’s 14^th  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 14^th 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)

The JIT’s 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 14^th report” – 14/02/01) it was SCOPA’s intention that the HSIU be part of the JIT.  At the time of writing the 14^th report a study was undertaken which clearly indicated the necessity of  the HSIU’s involvement (amongst others). Similar opinion was later also expressed by:

·        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 21/11/00)

·        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 14^th 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 14^th 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 Speaker.  i.e.  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 work

• 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 investigation.
• 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 involvement.
• 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 14^th 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 14^th 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 14^th 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 14^th 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 2^nd  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 14^th report – but on the other hand did make apologetic reference to the 14^th 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 issues  concerned.  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  May 2001. 
• 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 adequately explained.
• 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  final report.

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 SCOPA’s work

• 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 14^th 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 this :

• 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 14^th 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 Officers.
• 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 argument.          

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 components. 
• 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 14^th 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). 

CONCLUDING COMMENTS

The many 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 14^th report.  These interventions have therefore achieved that purpose. (See Gavin Woods critique of the JIT investigation). 

As close 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

In 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”.  

On 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.  

To 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.  

The 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.   

The importance of the point being made here is that after  blocking SCOPA from undertaking its obligatory investigative work (see 14^th report) during 2001, it had now succeeded in preventing it altogether.