The Scorpions on Monday served subpoenas - relating to their investigation into the arms deal - on MPs from at least four political parties, it emerged on Wednesday.

The serving of the subpoenas occurred in Parliament, after permission was obtained from Secretary to Parliament Sindiso Mfenyana.

However, Mfenyana failed to inform National Assembly Speaker Dr Frene Ginwala, Parliament's chief whips forum was told on Wednesday.

Had anyone objected, I would not have proceeded

The subpoenas have raised concerns about parliamentary privilege and whether the MPs can be forced to testify.

A memorandum from Mfenyana to Ginwala, dated November 13, states he was approached by the Scorpions on Friday regarding the serving of subpoenas on certain MPs to appear as witnesses.

"I was informed that the Scorpions had already been in contact with these members, and that the members had no objection to taking the witness stand," he says in the memo, a copy of which was leaked to Sapa.

Mfenyana says he decided to deal with the matter in line with his long-standing arrangement with the sheriff, that "we will try and get members and staff who are to be served court orders to agree to receive the sheriff in their offices, to prevent the latter from waiting for them just off the premises and serving subpoenas on them in full view of the public".

He faxed a list of the names to the members concerned, and personally phoned each of them on Monday to establish whether they would be prepared to be subpoenaed in their offices.

"All of them confirmed that they had previously been contacted by the Scorpions and they were full prepared to co-operate."

A staff member had escorted the Scorpions to the offices of the respective members, where the subpoenas were served on them.

"Had anyone objected, I would not have proceeded. In hindsight, I realise that I should have informed you of the arrangement," Mfenyana wrote.

In a legal opinion to Ginwala, chief parliamentary adviser Anton Meyer says section 28 (6) of the National Prosecuting Authority Act, authorised the investigating director to summons and question any person, including MPs.

A copy of the legal opinion is also in Sapa's possession.

In the document, Meyer says it is doubtful whether Parliament could at this stage claim any privilege relating to the service of legal process in its precincts.

However, he says the summonses require the MPs to give evidence, among other things, about the knowledge and understanding of the role and function of the joint standing committee on defence and the National Assembly's committee on defence, "with specific reference to the drafting and approval of the white paper on defence and the defence review".

They are also required to give evidence on their knowledge and understanding of the arms acquisition process, and the role the defence committees played in this process.

Meyer says in his legal opinion that it should be brought to the attention of the Scorpions and the witnesses concerned that the proceedings are protected by parliamentary privilege.

"What that entails is not completely clear, but in our view it would include at least that the proceedings may not be referred to or commented upon for the purpose of:

questioning or relying on the truth, motive or intention of anything forming party of the proceedings;
otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
drawing or inviting the drawing of inferences or conclusions from anything forming part of the proceedings," he says.

Meanwhile, it was confirmed that the Auditor-General's report into the arms deal would be tabled on Thursday.

The investigating agencies into the arms deal will brief MPs on Thursday at 1.30pm about the report's main recommendations.

The committees dealing with the report - including the standing committee on public accounts (Scopa) - would be expected to draft an interim report to Parliament by December 5 or 6.

With acknowledgement to Angela Quintal, Sapa and Independent Online.