Lawyers insist on briefing about SSA
Minister in the presidency in charge of the State Security Agency (SSA) Mondli Gungubele or deputy Zizi Kodwa must abide by the request of parliament’s standing committee on public accounts to report on SSA vetting of employees of state-owned enterprises, or be summonsed to do so if they refuse.
Minister in the presidency in charge of the State Security Agency (SSA) Mondli Gungubele, or deputy Zizi Kodwa, must abide by the request of parliament’s standing committee on public accounts (Scopa) to report on SSA vetting of employees of state-owned enterprises (SOEs), or be summonsed to do so if they refuse.
This is the legal advice given to Scopa by parliament’s chief legal adviser, Zuraya Adhikarie.
Scopa decided on Wednesday on the basis of the legal opinion that it will write to Gungubele to ask him and the SSA to appear on November 30, failing which he and the SSA will be issued with a subpoena.
Scopa wanted Gungubele or Kodwa to report on the vetting of Eskom employees, particularly those involved in supply chain management after it emerged that few had been vetted. But Gungubele refused, saying that he was by law only obliged to report to parliament’s joint standing committee on intelligence (JSCI), which holds closed meetings.
But Adhikarie countered this, saying that to argue that such update is part of “accountability to the JSCI” as the minister is doing, and therefore that only the JSCI may hold the SSA to account, is a narrow interpretation of the Intelligence Services Oversight Act 40 of 1994, that could lead to a situation that is inconsistent with the constitution and the requirement to maintain oversight of all organs of state.
“The Intelligence Services Oversight Act provides that certain matters must go to the JSCI, but does not preclude other committees from looking at such reports, for example the audited financial statements of the SSA.
“Should the minister refuse to report to Scopa, Scopa may initiate the process to summon the minister to provide the said information. We advise accordingly.”
Adhikarie said Scopa was empowered by law to request the update on the vetting of employees of SOEs. This was not a matter in the exclusive domain of the JSCI. Scopa also had the legal right to consider the financial statements and related matters of the SSA to fulfil its oversight mandate.
She said if it was reasonable and justifiable, the public and the media could be excluded from the Scopa meeting where the vetting information was provided. “Closure would only be necessary in as far as the SSA can demonstrate that the disclosure of information could reasonably be expected to prejudice the defence, security or international relations of the republic.”
Scopa chair Mkhuleko Hlengwa has noted that there is precedent for state security ministers to appear before Scopa.
At a Scopa meeting in October, MPs were informed only five of 21 senior Eskom executives had been granted security clearance. The vetting status of the other executives was still “in progress”, including that of the group CEO and the acting GM for procurement. It was at this meeting that Scopa suggested a meeting with the SSA to follow up on the status and progress of the vetting process.
Hlengwa wrote to Gungubele in October, requesting a report by the presidency on “the vetting of all officials that were vetted and not vetted, and their positions, particularly in Eskom. The exercise should include the executive”.
The request was based on a 2014 cabinet directive that all organs of state be screened, especially in supply-chain management departments.
An internal report by the committee’s secretariat noted that it was “imperative that adequate processes concerning the screening and security vetting of employees be put in place. Most officials occupying positions involving huge responsibilities within the organs of the state have not been vetted. There are no regulations that attach sanctions to individuals and heads of institutions who fail to cooperate or avail themselves for the vetting process”.
A cabinet directive to have all senior management and officials in supply-chain management units in government departments and entities vetted had not been fully implemented, the report said.
Scopa has previously raised concerns about the slow progress in screening public officials in government departments and state-owned entities (SOEs). “There was a lack of enforcement of the cabinet approval of the national vetting strategy. Some senior officials of the SOEs simply refused to be vetted and there were no consequences taken against them,” the report noted.