South Africa

Reporter’s Parliamentary Notebook: ‘People who must enforce the law behave like criminals’, Scopa scolds police top brass

By Marianne Merten 13 June 2017

The SAPS could not answer why, over a year after it was alerted it to conflicts of interests in its ranks, no action had been taken beyond getting statements in which those implicated deny doing business with the state. Parliament’s watchdog on public spending, the Standing Committee on Public Accounts (Scopa), on Tuesday met the police top brass in a follow-up to an earlier briefing by the auditor-general’s office, when the SAPS had emerged as a serial offender. What transpired was a picture of no consequences, belying government talk of consequence management amid the ticking of legislative, regulatory and policy prescript boxes. By MARIANNE MERTEN.

If those in the top echelons of public service can do it, why should a constable not also try? After all, the tone and example is set at the top. And the thing with laws, regulation and policy prescripts is that they can be ticked in a formality of observation, without living up to their spirit in the interest of all rather than the few.

In the controversial return to Eskom of Brian Molefe, much was made of Public Enterprises Minister Lynne Brown’s lack of powers to intervene. Cited was the 2014 memorandum of incorporation (MOI) when Molefe signed his contract with the power utility. That no-can-do attitude only changed when a deafening public outcry led to a political intervention by an inter-ministerial committee, which decided the minister actually did have the powers to intervene. And then Molefe was out of a job.

As the Molefe controversy now plays out in court, and in the wake of the #GuptaLeaks emails that situate the power utility central in state capture, Eskom board chairperson Ben Ngubane resigned. It was for “personal reasons”, as board spokesperson Khulani Qoma told eNCA. Brown’s official statement just past 23:00 on Monday night gave no reasons, but thanked Ngubane “for his contribution to turning Eskom around since the load shedding days of 2014/15” and wished him well.

The resignation came as a parliamentary inquiry is in the making similar to the one into the SABC. Those inquiry recommendations are now resulting in a clean-up of dodgy contracts and decisions at the public broadcaster where Ngubane also served as board chairperson from 2009.

ANC MPs on Parliament’s public enterprises committee on Tuesday said they were “perplexed” by Ngubane’s sudden resignation, viewed as “an attempt to avoid being held accountable for his role in recent events at Eskom”.

It cannot be correct that board members chose to resign when they are to be held accountable for their actions and decisions in our state-owned enterprises,” said acting public enterprises committee chairperson, and ANC study group whip, Zukiswa Rantho.

Back to the SAPS and Scopa. The list of 32 names of women and men in blue identified with potential conflicts of interests in the 2015/16 financial year includes former national commissioner General Riah Phiyega in relation to a travel company she resigned from in 1999.

IFP MP Mkhuleko Hlengwa raised this matter. “This is the SAPS, who are the alpha and omega of law enforcement, but at the very heart of the SAPS is an implosion.” It was a sentiment later echoed by Scopa chairperson Themba Godi: “People who must enforce the law behave like criminals.”

It remained unclear why Phiyega’s name should be linked to potential conflicts of interest some three years after her appointment in June 2012. It also remained unclear why this happened in the year she was suspended – in October 2015 – pending an inquiry into her fitness for office following a Marikana commission of inquiry recommendation. The board recommended her dismissal in December 2016, but this was held in abeyance following her legal challenge that saw her official term of office expire last weekend.

This was noted in the documentation police provided to MPs – “contract expiry 2017-06-11” – alongside the notation: “The member resigned from the company on 1999-10-25.” That conclusion was the outcome of a “special” process involving a forensic investigation, MPs were told.

No special processes have been applied to the other names on the list. Instead provincial SAPS commissioners, the same officers who approved SAPS members’ business interests, have been told to investigate. Hlengwa described it as effectively sending to investigate “those who will protect their friends and cronies”.

Police failed to respond adequately to MPs’ questions on what they did to recover monies unlawfully generated through conflicts of interest, either in internal processes or criminal charges. At one stage the SAPS appeared to indicate steps could not necessarily be taken against those who resigned from its ranks, as did 19 of the 32 named.

MPs were clearly frustrated, and in no small measure angered at evasive answers like “the investigation process runs in a particular process in a cost centre” by Lieutenant-General Stefan Schutte, in charge of asset and legal management. Ditto, deputy national commissioner for human resource management Lieutenant-General Bonang Mgwenya’s accounts of difficulties because the SAPS did not have “an enhanced system where at a press of a button” information becomes available.

ANC MP Nyami Booi cut right through it. “The narration of stories and lamenting of the future can’t happen in an organisation that is 100 years old… Where are your systems?”

And he raised a broader dereliction, citing page 248 of the SAPS 2015/16 annual report, which clearly states there were 469 cases of corruption, and 104 of fraud, within the ranks. “You came here with a lethargic approach saying we are investigating,” he said, also referring to the case of Lieutenant-General Hamilton Hlela’s “kickbacks of R1.3-billion”.

Hlela, a SAPS procurement official, took early retirement in late 2010. In June 2015 he was sentence of 10 years’ jail, suspended for five years, for corruption involving R1.3-billion and was ordered to repay R76,203 of benefits, according to a list of successful convictions given to Scopa last month by the national anti-corruption task team. According to City Press, ANC MP Nthabiseng Khunou told that meeting that rich criminals were getting away with a slap on the wrist. “How does this Hlela person, who is involved in corruption of R1.3-billion, get sentenced to only 10 years (suspended for five years). We are protecting the rich over the poor. These are the real criminals.”

On Tuesday the SAPS top brass insisted systems are in place, but MPs had to understand there had been changes in the overall conflicts of interest regimen. Under the Public Administration Management Act, all civil servants are banned from doing business with the state effective from 1 February, 2017.

But the SAPS could not say whether 11 conflicts of interest cases it identified for the 2016/17 financial year happened after the ban on public servants doing business with the state came into full force.

Deputy Police Minister Bongani Mkongi told MPs: “It is a serious surprise the department (SAPS) is unable to answer questions… We cannot preside over a corrupt institution.”

But it’s never quite that simple. For the past three years the police ministry did not respond to the Public Service Commission’s (PSC) requests for feedback on action over SAPS’s potential conflicts of interests. Commissioner Sellina Nkosi told MPs that in the 2013/14 financial year the PSC identified 40 potentially conflicted senior SAPS officials, 27 the next financial year and 91 senior SAPS officials in the 2015/16 financial year, alongside 61 who did not disclose fully.

Responded Godi: “If in three years since the PSC writes to the minister, ‘Here are your officials who do not comply’ … and there’s no response, it can’t be correct.”

Auditor-General Kimi Makwetu sat through Tuesday’s Scopa proceedings. “Conversations like this… are exactly what we’ve been encouraging for some time,” he told Daily Maverick. It was “a step in the right direction”, he added, citing also the SABC parliamentary inquiry, which “has had some very sharp and focused outcomes”.

The auditor-general for years has highlighted lack of consequence management for transgressions across all spheres of government. The annual audit reports, however, also highlight the impact of political will: where it is present in both political and administrative leadership, impact and changes are made for the positive.

What emerged before Scopa on Tuesday was a meandering explaining away of lack of action amid a ticking of legislative, regulatory and other boxes. It amounted to, as Hlengwa described it, a hoodwink.

But what unfolded before Scopa is not isolated. To wit, the public enterprises minister, Molefe, and the MOI. Or the finance ministry response to the letter showing how former home affairs minister, now Finance Minister, Malusi Gigaba approved the citizenship of several members of the Gupta family, at the heart of #GuptaLeaks.

The application was handled in line with the procedure that requires that the Department of Home Affairs submits recommendations to the minister for consideration,” said Tuesday’s finance ministry statement, adding that similar courtesies have been extended to other prominent businessmen and sports people. “There is no impropriety on the part of the minister…”

While Godi and the Scopa he chairs are looking to have an impact – “There must be a change in the behaviour of officials,” he told Daily Maverick – ticking the box, regardless of the spirit of the law or Constitution, leaves much wiggle room for administrators and politicians alike. DM

The original photo: President Jacob Zuma addressed the South Africa Police Service Commemoration Day to remember police officers killed in the line of duty, Union Buildings, Pretoria, 06/09/2015, Elmond Jiyane, GCIS


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