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Letter to President Mbeki |
15 January 2001
Request for a proclamation under the Special Investigating Units and the Special Tribunals Act, 1996 (act 74 of 1996)
http://www.gov.za/projects/procurement/maduna.htm
Mr TM Mbeki
President of the Republic of South Africa
The Union Building
Pretoria
0001
15 January 2001
Dear Mr President
REQUEST FOR A PROCLAMATION UNDER THE SPECIAL INVESTIGATING UNITS AND THE SPECIAL TRIBUNALS ACT, 1996 (ACT 74 OF 1996)
As the President is aware, I was last year approached by Judge W H Heath, the head of the existing Special Investigating Unit established in terms of section 2 of the Special Investigating Units and Special Tribunals Act, 1996 (Act 74 of 1996) (the Unit), for assistance to obtain a proclamation from the President to enable him to investigate certain allegations relating to the selection process of the strategic defence packages for the acquisition of armaments. Subsequently, the Office of the President requested me to advise the President on this question.
The Standing Committee on Public Accounts (the SCOPA), according to a letter written by Dr Gavin Woods, the Chairperson of the SCOPA, to the President on 8 December 2000, supports the involvement of the Special Investigating Unit headed by Judge Heath in the matter and requests the President to issue the necessary proclamation. However, it is important for the President to note in this regard that, according to a press statement issued by Dr Frene Ginwala on 27 December 2000, '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.' Moreover, Dr Ginwala, in the same press statement, states that:
'A Committee of the National Assembly has no authority to subcontract its work to any of these 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 ...'
As far as I am aware, there has hitherto been no request from Parliament or the National Assembly that the President should consider issuing a proclamation either establishing a special investigating unit or extending the mandate of the existing Unit to the matter referred to above. It would thus be incorrect and, in fact, mischievous, for any person to argue, as has been done in certain circles, that if the President, for any legitimate reason, does not issue a proclamation under the Act, the President would be acting in defiance of Parliament.
Preliminary steps have, to my knowledge, already been taken by the Public Protector, the Auditor-General and the National Director of Public Prosecutions through the Investigating Directorate: Serious Economic Offences to begin a fully-fledged investigation. It is in the public interest that this investigation should be allowed to continue without any let or hindrance.
In terms of the Act, the discretion to establish a special investigating unit, such as the current one headed by Judge Heath, and provide it with a proclamation which outlines what is to be investigated and sets the parameters of the envisaged investigation, is vested in the President. Similarly, the President may give an assignment to investigate a matter to an existing Special Investigating Unit.
My Department merely advises the President in this regard and, in order to do so, we study whatever material that is placed before us to determine whether there is, in the first place, a need to investigate and, if so, whether it is necessary for the President to establish a special investigating unit, or, as the case may be, refer a matter to an existing Unit, for that purpose. In order for my Department to function effectively in this regard, access to all available information and documents is absolutely necessary.
I wish to point out that, but for the report of the Auditor-General to the Public Accounts Committee, the SCOPA report to the National Assembly and numerous press articles and editorials in this regard, my Department was, unfortunately, not given access to any documents or information upon which all manner of allegations and innuendo have been made with regard to this matter. We have, in particular, not had sight of the much-vaunted De Lille dossier which, according to the media, was handed over to Judge Heath some months back. Whatever the reasons for this non-disclosure of critical information may be, this has, undoubtedly, not assisted me in doing the work that I am required to do if I am to render the assistance the President expects of me in matters of this nature.
I have, nonetheless, now had the opportunity to consider the two requests and, on the basis of the information at my disposal, wish to advise the President that I am of the opinion that the matter should not, at this stage, be referred to the Unit headed by Judge Heath, and that no other unit should be constituted for the purpose of pursuing this matter.
My opinion is based on the following considerations:
(a) The recent Constitutional Court decision in the case of the South African Association of Personal Injury Lawyers v Heath and Others, in which the Court held that it is not in keeping with the Constitution for a judge to play the roles envisaged in the Act. The Constitutional Court then gave the Government a period of one year within which to amend the legislation in order to facilitate a smooth and orderly transfer of the powers of the head of the Unit to a functionary who is not a member of the judiciary. It would therefore in my view make it undesirable for the President to establish a special investigating unit or to refer the allegations referred to above to Judge Heath's Unit. To continue referring new matters to the Unit would in my view fly in the face of the Constitutional Court judgement, therefore undermining its spirit and essence.
(b) The fact that, in any case, neither Judge Heath nor any person has provided me with any information whatsoever that suggests that an unlawful appropriation of public funds or assets has occurred, which funds or assets have to be recovered by a special investigating unit as envisaged in the Act.
I would also like to inform the President that the Public Protector is of the view that at present there is no evidence of unlawful appropriation or expenditure of public funds. In a letter to me dated 22 November 2000, the Public Protector advised me that the Auditor-General, the Public Protector and the National Director of Public Prosecutions through the Investigating Directorate: Serious Economic Offences can adequately deal with the present allegations and issues. While he was hesitant to recommend that the application for a proclamation be refused, he believed '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 stage, if necessary.'
Further, Mr. President, the Special Investigating Unit headed by Judge Heath is currently handling, and therefore has yet to complete almost two hundred thousand investigations as directed in over sixty Proclamations issued by the President. Had it been necessary to refer the matter at issue to a special investigating unit, it would have been absurd and illogical for me to recommend that the President should give additional work to Judge Heath's Unit that is already so overladen, when Judge Heath will cease being the head of the Unit and will have to hand over to a non-judge replacement within the one-year period of grace granted us by the Constitutional Court.
I must also advise the President that, though, according to Dr Woods, the SCOPA has called for a joint investigation involving a number of state agencies, it is important to note that there is no statutory provision for the establishment of such a joint investigative body. Each separate investigative body only has the powers conferred upon it in terms of its own founding legislation. The Public Protector derives his powers from the Constitution and the Public Protector Act, 1994 (Act 23 of 1994); the Auditor-General from the Constitution and the Auditor-General Act, 1995 (Act 12 of 1995); the Special Investigating Unit from the Special Investigating Units and Special Tribunals Act, 1996 (Act 74 of 1996); and the ID: Serious Economic Offences from the National Prosecuting Authority Act, 1998 (Act 32 of 1998).
Accordingly, a joint investigative body will have no status in law, cannot issue enforceable subpoenas, and cannot compel witnesses to answer questions, among other things.
The point about all this, Mr. President, is that both Parliament and the Executive will have to act in a manner that respects the law.
In respect of the powers of the existing Unit to approach the Special Tribunal for the cancellation of contracts, as mentioned by some media reports, the following is important to note:
In the light of what we, as members of the Cabinet, know about the defence acquisition, as publicly explained by a group of our colleagues on Friday, January 12, 2001, we have advised both the National Director of Public Prosecutions (NDPP) and the National Commissioner of Police to obtain precise information from the Auditor-General and the SCOPA about the specific alleged instances of wrong-doing they are supposed to investigate. We wish, and hereby request the President to allow us, to invite any person who may be in possession of any information that warrants a criminal investigation to furnish such to the two officers or lay charges at police stations of their choice at their earliest convenience. As in all other matters, due process will have to be followed in this matter, with both the National Director of Public Prosecutions and the National Commissioner of Police acting according to the law and without fear and favour.
Furthermore, as the President knows, pursuant to a decision of the Cabinet to co-operate fully in any investigation that may be necessary, our colleague, the Minister of Defence, and his officials, have already agreed to give these investigative units access to the information they have in their custody.
However, the Public Protector, the National Director of Public Prosecutions and the Auditor-General are free to do as they wish, consistent with their legal mandates and the information they have. The President may help only to ensure that there is full co-operation on the part of any Minister and public servant that the investigative authorities may wish to interview in order to establish the veracity of the allegations that have become such a matter of public concern.
I wish to bring to the attention of the President that on 21 November 2000 the Chairperson of the SCOPA, Dr Woods, wrote to the investigating units to inform them that the SCOPA was approached by an unnamed foreign "forensic accounting facility" with an offer to extend assistance to the SCOPA. What is particularly bothersome about this unsolicited offer is that, according to Dr Woods, the international forensic facility will 'venture what the scope of such an investigation might ideally include.'
Obviously, the Government cannot agree that some unknown foreign investigative unit comes into the country to carry out whatever work, until it is satisfied that this is legal, necessary and consistent with the security of our country. Moreover, no self-respecting country will accept that it would take foreigners to draft the terms of reference of what is essentially a domestic enquiry, no matter its magnitude and complexity.
Minister Tshwete and I wish to discuss this matter with the Speaker and the Chairperson of the SCOPA as well as take such other steps as may be necessary, given the foreign interest in this matter. If the President accepts these proposals, we will seek to meet the Speaker and the Chairperson of the SCOPA to communicate and discuss this issue and our concerns with them.
In order further to assist the President, a copy of the Memorandum (with Annexures), submitted to me by my Department, on which, among other things, based my advice to the President, is attached. The documents contain more detailed background information and motivation.
Yours sincerely,
Dr P M Maduna, MP MINISTER
Issued by the Department of Justice, 15 January 2001