REPORT OF THE JOINT COMMITTEE ON ETHICS AND MEMBERS' INTERESTS ON THE MATTER OF THE HONOURABLE FORMER MINISTER D PULE, MP, HELD ON 7 AUGUST 2013, AT E444 NEW WING, PARLIAMENT.
Chairperson: Mashile BL [ANC]
Turok B [ANC]
Luyenge Z [ANC]
Nhlengetwa, DG (ANC) Ngcobo, BT [ANC]
Radebe, B [ANC]
Dreyer, A [DA]
Kohler-Barnard, D [DA]
Van der Merwe JH [IFP]
Makunyane T [ANC]
Rantho, DZ [ANC]
Bekker, J (DA)
Mangena M (ANC)
Koornhof, Dr GW (ANC)
Staff in attendance
Mahomed F. (Registrar)
Mkhosana, SD. (Staff)
Myoli, L ( Committee Secretary)
Adhikarie, Z (Chief Legal Adviser) Isaacs, F (Staff)
The Joint Committee on Ethics and Members' Interests appointed a Panel from its Members for the hearing to consider the complaints against Hon. Pule. The Committee received the Report of the Panel which consisted of findings and recommendations with respect to penalties. The Committee unanimously adopted the report of the Panel in full with changes. Paragraph 20 of the Code of Conduct requires that the Committee must report its findings and recommendations as to penalties to the National Assembly. The Committee accordingly adopts the report for tabling to the National Assembly.
Hon Dreyer moved for the adoption of the Panel Report, Hon van Der Merwe seconded the motion.
The Joint Committee on Ethics and Members' Interests has the difficult task of deliberating on the conduct of its colleagues in Parliament. We must do this without fear or favour irrespective of the status of the affected person.
While our findings are based on the Code of Conduct (the -Code‖) in the Joint Rules of Parliament, we have to take into account the statements on ethical conduct in the Ministerial Handbook, the Executive Members Ethics Act (Act 82 of 1998), the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act (Act 4 of 2004), which establish offences on discipline and contempt of Parliament with severe penalties for transgression, as well as the Constitution.
In interpreting and applying the Code, due regard must be had of the Schedule as well as the Explanatory Document on the Code of Conduct for Members of Parliament as articulated in the booklet containing the Code that was distributed/available to Members.
One of our main functions is to oversee the declaration of interests of members and their close family members, permanent companions and spouses. This oversight includes potential or actual conflict of interest. In respect of Cabinet Members the Constitution further, sets out additional prohibitions in section 96(2) (b) and (c). To this end the Explanatory Document is most instructive in that it captures the spirit of these Constitutional provisions in distinguishing a -public interest‖ from a -private interest‖.
In conducting hearings on any allegation of ethical misconduct the appointed Panel must observe fair due process, but it is not a court of law and it must make findings in accordance with a balance of probabilities.
The purpose of such proceedings is to discourage ethical misconduct, which constitutes an abuse of public trust. We must do this with compassion and fairness, but we must act in the interests of national integrity and in protection of our national assets, which must not be abused for personal gain.
The nation looks to Parliament to exhibit the highest ethical values and standards.
Pursuant to allegations in the media, and complaints by certain Members of Parliament, the Joint Committee (-Committee‖) embarked on an investigation into alleged breaches of the Code by the Honourable former Minister in the Department of Communications (-DOC‖), Ms Dina Pule, MP.
2. LEGISLATIVE FRAMEWORK
2.1. Ethical Conduct in terms of the Code
2.1.1. Paragraph 6 of the Code which appears as a schedule to the Joint Rules of Parliament, prescribes, inter alia, that Members of Parliament must disclose to the Registrar of the Committee particulars of all their registrable interests.
2.1.2. The term -registrable interests‖ is defined in the Code as all financial interests listed in paragraph 7 of the Code, including the financial interests of the member's spouse, dependent child and permanent companion. Registrable interests include the following:
a) Shares and financial interests in companies/corporate entities
b) Remunerated employment outside Parliament
c) Directorships and partnerships
f) Gifts and hospitality from a source other than a family member or permanent companion
g) Benefits of a material nature
h) Foreign travel paid for by outside sources
i) Ownership of land and property
2.1.3. Paragraph 9 of the Code further requires the Registrar to record -Details of all financial interests of a member's spouse, dependent child or permanent companion to the extent that the member is aware of those financial interests‖.
2.1.4. Paragraph 9(2) of the Code stipulates that -Where any doubt exists as to whether any financial interests must be disclosed, the member concerned must act in good faith‖. [The Explanatory Document on the Code of Conduct for Members of Parliament provides some further guidance to distinguish between a private and public Interest where Members may be in doubt, notwithstanding that in respect of Cabinet Members section 96 (2)(b) and (c) is quite explicit.]
2.1.5. Paragraph 13 of the Code requires that -if a member makes representations as a member to a Cabinet member or any other organ of state with regard to a matter in which that member or any spouse, permanent companion or business partner of that member has a personal or private financial or business interest, that member must declare that interest to that Cabinet member or organ of state.‖
2.2. Breaches of the Code
In terms of paragraph 16 of the Code, a breach occurs when -
(a) a Member contravenes or fails to comply with a provision of the Code; or
(b) disclosing registrable interests, a Member wilfully provides the Registrar with incorrect or misleading details.
2.3. Investigation of Alleged Breach
2.3.1. Paragraph 17(1) of the Code provides that the Committee may, -acting on its own or on a complaint by any person through the Office of the Registrar, investigate any alleged breach‖ of the Code.
2.3.2. The Committee is entitled, in terms of paragraph 17(2), to determine its own procedure when investigating any alleged breach. However, the Committee must afford the Member an opportunity to be heard.
2.3.3. The Procedure for the Investigation of Complaints (-the Procedure‖ - ATC 5 November 1997, p 746), lays down the general procedure to be followed when investigating a complaint. This Procedure must be read together with the Code.
2.3.4. Paragraph 2 (1.4) of the Procedure provides that the Registrar is obligated to inform the Member that a complaint has been received and must provide the Member with the substance of the complaint. The Member must be given an opportunity to respond to the complaint, which response must be furnished within seven days of being informed of the complaint.
2.3.5. In terms of paragraph 2 (1.4) of the Procedure, the Registrar, based on the response from the Member, has the discretion to decide whether she will take further action or not, depending on whether the complaint is frivolous, vexatious or unfounded, or to decide that it is necessary to hold a hearing. Her decision must be confirmed by the Committee.
2.4. The Hearing
2.4.1. The Procedure prescribes that a Hearing must be held where facts are in dispute.
2.4.2. The Committee may, as it has done in this case, appoint a Panel (-the Panel‖) to preside at the Hearing, rather than for the whole Committee to be present. The Committee appointed a multi-party Panel from its members.
2.4.3. The Hearing may be held in closed session if the Committee is of the view that the matter under investigation is confidential. This is consistent with the Code and the Procedure.
2.4.4. A member has the right, in terms of the Procedure, to be represented by another member, to call and cross-examine witnesses.
2.4.5. The Procedure allows for the calling of witnesses by the Registrar. The garnering of evidence, on behalf of the Committee, is undertaken by the Registrar. The Panel is empowered in terms of Joint Rule 32 to summon any person to appear before it to give evidence on oath or affirmation, or to produce documents.
2.4.6. The Procedure clearly states in paragraph 3 (1.3) that the Committee,
-has the discretion regarding the weight to be attached to different forms of evidence and the extent of cross-examination of witnesses‖.
3. MEMBERS OF THE PANEL
3.1. On 27 March 2013 the Committee, having agreed that the material facts were in dispute, appointed the following Members of Parliament to serve on the Panel:
NAME OF MEMBER
Prof B Turok (Chairperson)
Ms M Mangena
Mr A Mlangeni
Mr BA Radebe
Mr T Makunyane
Ms Z Rantho
Mr JH van der Merwe
Ms D Kohler Barnard
Mr SH Plaatjie
3.2. The Panel was assisted by Ms Fazela Mahomed in her capacity as Registrar of Members' Interests. Ms Mahomed tabled and led evidence during the Hearing.
3.3. The Panel was further assisted by Adv Z Adhikarie in her capacity as Chief Legal Adviser and Ms F Ebrahim in her capacity as Legal Adviser.
3.4. Hon. Pule was represented by the Hon. M Masutha (MP), who, owing to his visual impairment, was assisted by Ms Yolanda Sili, Mr Masutha's Secretary who is an employee of Parliament.
4. WITNESS LIST
Below is a list of witnesses in the order in which they were called by the Registrar. Hon. Pule was informed in writing of her right to call witnesses. She called Mr S Vilakazi, and recalled Dr B Hadebe for cross-examination.
Ms Carol Bouwer
Owner of Carol Bouwer Productions and initiator of the ICT Indaba
Dr Bandile Hadebe
Ex-Director for Planning and Foresight in the DOC, initial project manager for the ICT Indaba, and currently employed at Carol Bouwer Productions
Mr. Themba Frank Phiri
Acting Deputy Director General : Policy in the DOC
Mr Phosane Mngqibisa
Owner of Khemano,
and alleged -permanent companion‖ of Hon. Pule
Mr Sam Vilakazi
Deputy Director General: Administration in the DOC
Ms Tsakane Mahlaule
Hon. Pule's ex-Personal Assistant and Media Liaison, and Parliamentary Officer when Hon. Pule was Deputy Minister in The Presidency
Ms Basani Baloyi
Former Chief Director Human Resources in the DOC and acting Chief Operations Officer in the DOC.
5. THE ALLEGATIONS
The main issue in this case relates to the intimate relationship between Hon. Pule and Mr Mngqibisa. In documents before the Committee, different terms for this relationship are used, such as -permanent companion‖, -spouse‖, -travel companion‖ and -partner‖, amongst others.
The allegations against Hon. Pule are as follows:-
5.1. Hon. Pule did not disclose the interests of her permanent companion/spouse as required in terms of paragraph 9(g) of the Code.
5.2. Hon. Pule failed to declare her private interests, as required by paragraph 13 of the Code. The paragraph requires that a member must declare private interests when making representations as a member to a cabinet member or any other organ of state with regard to a matter in which that member or any spouse, permanent companion or business partner of that member has a personal or private financial or business interest.
5.3. Hon. Pule received a pair of Christian Louboutin shoes as a gift from Mr Mngqibisa which was not disclosed as required in terms of paragraph 8(f) of the Code.
6. THE PRELIMINARY INVESTIGATION PRIOR TO THE HEARING
6.1. Hon. Pule has been an MP since 2009; she was Deputy Minister of Communications from May 2009 to November 2010; Deputy Minister in The Presidency for Performance Monitoring and Evaluation as well as Administration from 1 November 2010 to 24 October 2011, and Minister of Communications from 25 October 2011 to 9 July 2013. She remains a Member of Parliament.
6.2. The preliminary investigation was conducted by the Registrar in terms of paragraph 4.13 of the Procedure. Pursuant to media reports and complaints received by the Registrar, she commenced her investigation after obtaining the approval of the Joint Chairpersons of the Committee.
6.3. The Registrar informed Hon. Pule of the complaint in a letter dated 25 July 2012. The Member duly responded by means of an affidavit dated 10 August 2012. The Registrar then sought further clarity from the Member, who responded by means of a supplementary affidavit dated 30 October 2012.
6.4. Hon. Pule in her affidavit of 10 August 2012 affirmed, inter alia, that she:-
6.4.1. does not have a permanent companion as envisaged in the Code. She did however confirm that she has a long standing friendship with Mr Mngqibisa.
6.4.2. is able to -unequivocally state that I have not registered Mr Mngqibisa as a permanent companion for the purposes of travel or any other benefits with the Department.‖
6.4.3. was appointed as Minister of the DOC only after the Telkom sponsorship was obtained.
6.5. After receiving Hon. Pule's response the Committee, acting in terms of paragraph 17(1) of the Code, instructed the Registrar on 5 September 2012 to conduct an investigation into the allegations against Hon. Pule.
6.6. The Registrar duly proceeded with the investigation in terms of the Code and Procedure.
6.7.1. The Registrar obtained evidence in the form of affidavits and interviews conducted with several individuals in order to determine the facts and whether there were issues in dispute that would necessitate a hearing.
6.7.2. The evidence that served before the Panel was therefore made up of-
i. in the first instance, affidavits and transcripts of the interviews; and
ii. secondly oral evidence given during the hearing.
6.7.3. What follows is the summary of the Evidence that was initially provided to the Registrar by the respective individuals and thereafter the summarised versions of the oral testimony, all of which must be viewed collectively to establish consistency. The Panel was mindful of correlating all the evidence together with the documents that served before it to verify material facts.
a) Ms Bouwer
Upon the request of the Registrar, Ms Bouwer submitted an affidavit in which she stated the following:-
i. Khemano, a company owned by Mr Mngqibisa, was recommended to her by Mr T Phiri.
ii. She agreed that Khemano would be the lead supplier in the ICT Indaba and would deliver the bulk of core services for the Indaba whilst her role would be to promote the Indaba.
iii. Mr Mngqibisa submitted an invoice to her for a pair of Christian Louboutin shoes but thereafter he indicated that it was sent in error. Ms Bouwer did not have a copy of the email as it was no longer on her computer system.
iv. Ms Bouwer also submitted financial statements which had information which was difficult to decipher. The financial statements from Ditebe Auditors did not constitute a proper audit.
v. Ms Bouwer further submitted an unsigned agreement with Khemano in which Hunta Live is identified as technical supplier to the Indaba.
vi. In a separate previous response to Vodacom, Ms Bouwer indicated that she appreciated the support of Khemano. She also stated that she was not forced into a decision by Mr Phiri.
Ms Bouwer was also interviewed by the Registrar. During the interview she confirms that:-
i. She gave Mr Mngqibisa restricted access to one account of Carol Bouwer Productions as she did not have time to open a separate account which was what he wanted.
ii. She would have been happier working with Hunta Live as they knew each other, shared similar goals and a lot of time was lost due to the work they had already done.
iii. She was getting irritated with Mr Mngqibisa because he kept drawing money before submitting invoices. She said it was improper‖.
iv. The situation destroyed her business and her name.
b) Mr Phiri
In his affidavit, Mr Phiri alleged that the introduction of Ms Bouwer to Mr Mngqibisa was coincidental and not orchestrated by him.
The transcripts of Mr Phiri's interview with the Registrar reflect that Mr Phiri knew Mr Mngqibisa from 2007/8. He indicated that they went to soccer matches together and exchanged soccer tickets. However, Mr Phiri provided a second affidavit in which he refers to Mr Mngqibisa merely as an acquaintance.
c) Mr Mngqibisa
Mr. Mngqibisa submitted a written response to the Registrar's questions but failed to respond substantially to the questions.
The Registrar requested information from MTN relating to their interaction with Hon. Pule and the DOC in respect of the ICT Indaba.
The information provided by MTN reflects that Mr Mngqibisa's company Khemano received R6 000 000.00 (Six Million Rand) for its services in respect of the ICT Indaba 2012. The audit report produced by MTN Auditors questions the forthrightness of both Ms Bouwer and Mr Mngqibisa in their responses to the Auditors.
The MTN audit reflects that Mr Mngqibisa told MTN auditors that Ms Bouwer approached him in 2010 with the concept of the ICT Indaba and invited him to get involved.
e) Dr Bandile Hadebe
In his affidavit Dr Hadebe stated, inter alia, the following:-
i. The initial team appointed to deal with the ICT Indaba included a company called Hunta Live which is an experienced events company that had the capacity to organise the ICT Indaba.
ii. In his view there could be no reason for including Khemano as a partner. Khemano was introduced to him on the understanding that their involvement would be part of a skills transfer initiative to learn from Hunta Live.
iii. Mr Mngqibisa attended the Minister's Forum at the ICT Indaba where he had no official role.
iv. He highlighted the issue of the substandard work performed by Khemano with Ms Bouwer and Mr Phiri separately. After raising the matter with Mr. Phiri he was removed as Project Manager by the DG, Ms Rosy Sekese. Subsequently, in February 2012, Ms Andiswa Booysen, a Khemano employee, was hired as Special Projects Manager in the DOC Team.
f) Mr S Hendrikse: CEO of Hunta Live
Mr Hendrikse submitted an affidavit to the Registrar, stating the following:-
i. Mr. Mngqibisa explained his involvement in the ICT Indaba by alleging that he was instructed by Hon. Pule to resuscitate the ICT Indaba project and that Khemano would thus take responsibility for all revenue.
ii. Mr Mngqibisa further informed him that Khemano would levy a management fee upfront for its services.
iii. He was very concerned about Khemano's lack of experience in events management.
Vodacom submitted documentation which was requested by the Registrar. From their information it is evident that Mr Mngqibisa's company, Khemano, received in excess of R6 000 000.00 (Six Million Rand) for consultancy fees.
It was further apparent from the information received that Ms Bouwer agreed to rigorous ethics and compliance conditions relating to the sponsorship from Vodacom. These conditions provide that Ms Bouwer would have to pay back sponsorship money if she was found to be party to any unethical conduct.
7. RECOMMENDATION TO HOLD A HEARING
Based on the evidence before her, the Registrar advised the Committee that her investigation was inconclusive and she was not able to make a recommendation to the Committee. It was thus deemed necessary by the Committee to hold a Hearing on the facts in dispute.
Hearings were held on the 2 nd and 3rd May 2013, 15th and 16th May 2013, and 13th June 2013, respectively.
8. EVIDENCE AND DOCUMENTS BEFORE THE PANEL
The Registrar gathered evidence in the form of media reports, the affidavits, financial information, documentary evidence and the transcripts of the interviews.
8.1. Initial Evidence
The Registrar submitted an initial bundle of evidence. This was later supplemented during the Hearing by further additional documents. All evidence has been paginated in one bundle (-the Bundle‖) for ease of reference.
8.2. Additional Documents tabled during the Hearing
The following additional evidence was obtained and tabled during the Hearing by the Registrar:-
8.2.1. Report on the Mexico Trip
Mr Phiri provided a report that related to the alleged trip taken by Hon. Pule and Mr Mngqibisa to Monterrey, Mexico. (2-5 September 2009). The Report does not include any reference to Mr Mngqibisa having been present during the trip nor does it define any role for him (whether as a special or technical adviser or other) whatsoever.
8.2.2. Travel Documents relating to Mexico Trip referred to above
The Panel was provided with travel documents relating to the Mexico trip. Included in these documents was travel form 1388 that refers to Mr Mngqibisa as Hon. Pule's -companion‖. An affidavit was received from Ms Basani Baloyi, the signatory who approved this travel form, confirming its authenticity. She confirmed this again when testifying before the Panel.
The Panel was further provided with airline printouts which reflect flights undertaken by Mr Mngqibisa and Hon. Pule at the same time. The Panel agreed to disregard this evidence as there was insufficient time to authenticate them.
8.2.3. Affidavit of Ms Tsakane Mahlaule
Ms Mahlaule provided an affidavitin which she stated that:
i. Mr Mngqibisa was Hon. Pule's partner.
ii. Mr Mngqibisa and Hon. Pule travelled together to various destinations in the period June - July 2011 during which they shared hotel accommodation.
These destinations are as follows:-
(a) Prague 21-24 June 2011
Hon. Pule and Mr Mngqibisa flew on the same flight; they had two cars, one for Hon. Pule and Mr Mngqibisa and the other for Ms Mahlaule. Hon. Pule and Mr Mngqibisa shared accommodation at the Prague Marriot Hotel and were hosted by Ms Botha, Ambassador to Czech Republic.
(b) Paris 24-26 June 2011
Hon. Pule, Mr Mngqibisa and Ms Mahlaule travelled together to Paris, where they rested and shopped. Road travel arrangements were the same as for Prague. Hon. Pule and Mr Mngqibisa shared a suite at the Renaissance Hotel.
(c) Mexico City 26-29 June 2011
Ms Mahlaule and Hon. Pule stayed at the Hotel Intercontinentale President. Hon. Pule had her own driver and Ms Mahlaule travelled with other delegates. Hon. Pule travelled back to South Africa while Ms Mahlaule remained for the rest of the study tour.
(d) Washington DC 7-11 July 2011
Hon. Pule, Ms Mahlaule and Mr Mngqibisa arrived at different times. Road travel arrangements were the same as in Prague. Hon. Pule and Mr Mngqibisa shared suites at the Williard Hotel.
(e) New York City 11-13 July 2011
Hon. Pule, Mr Mngqibisa and Ms Mahlaule were on the same flight. Road travel arrangements were the same as for Prague.
Hon. Pule and Mr Mngqibisa shared a suite at the Ritz Carlton in Central Park.
8.2.4. Affidavit of Ms S Henry - Kuala Lumpur, Malaysia
Ms Henry submitted an affidavit on 9 May 2013 in which she states that she met the Hon. Pule and four people whom she assumed were officials. They had only arranged accommodation for three officials, and when she enquired whether she needed to amend the bookings she was informed that it was sufficient. On the evening of 22 April 2012 Mr Mngqibisa joined the debriefing which the Hon. Pule hosted in her hotel room. On 25 April 2012 Mr Mngqibisa and Ms Bouwer joined the delegation and attended meetings in the latter half of the day.
8.2.5. Affidavit of Mr Mngqibisa
Mr Mngqibisa submitted a further affidavit when he appeared before the Panel in which he stated that he was unable to locate the email regarding the shoes as had been requested by the Committee.
8.2.6. Press Article relating to Dr Hadebe
Hon. Pule submitted a press article which dealt with Dr Hadebe's suspension by the Medical Council (IOL Article 17 August 2010) for practising as a medical doctor without registration in his final year of medical school.
8.2.7. Submission on the Process
Hon Masutha tabled three submissions regarding certain alleged procedural flaws.
8.2.8. Documents from Mr Vilakazi
The Acting Chief of Staff of the DOC, Mr Gopal, submitted documents requested from Mr Vilakazi by the Panel in respect of flights and accommodation for Mr Mngqibisa and Hon. Pule in respect of the:
i. Malaysia trip (21 April 2012);
ii. Nigeria trip (memo stating that the Department has no records of Minister's Travel to Nigeria (Face of Africa trip);
iii. Mozambique trip (22-26 March 2010) and
iv. payment confirmation of the Mexican trip (03 September 2009).
8.2.9. Affidavit from Ms S Botha
Ms S Botha, former South African Ambassador to the Czech Republic, submitted an affidavit with claim forms which list Mr Mngqibisa as Hon. Pule's companion during the trip to Prague.
8.3. The Panel also received a copy of the internal memorandum (18 August 2009) which was addressed to Ms Baloyi in her capacity as Chief Operations Officer of the DOC, which states that Hon. Pule had nominated Mr Mngqibisa as her spouse.
9. SUMMARY OF HEARING
The Hearings commenced on 2 May 2013 and were held over 5 days.
9.1. DAY ONE ( 2 May 2013)
A. Opening Statement of Hon. Masutha MP
Hon. Pule confirmed that she had nominated Hon. Masutha as her representative.
Hon. Masutha advised that due to his disability he would require additional assistance to discharge his role effectively. He initially requested that Hon. Pule's Chief of Staff be permitted to assist him; however, the Panel indicated that the Hearing was an internal matter and arrangement for Secretarial services could be made. Hon. Masutha agreed to be assisted by his secretary.
Hon. Masutha alleged that there were certain procedural shortcomings in the process namely:
(i) proceedings did not meet the standards of consistency, fairness and promptness;
(ii) the identity of the complainant was not revealed. He requested that the Minister be given an opportunity to face her accuser;
(iii) the complaint was factually incorrect and based on speculation;
(iv) there was a delay in the submission of the documentation to Hon. Pule because she received the documentation on 29 April 2013;
(v) reference was made to the changes made in respect of the notice of hearing, with the inference that the Committee had predetermined the outcome based on these changes;
(vi) concern about comments attributed to the Chairperson in the media which Hon. Pule believed may have impinged on her right to a fair hearing; and
(vii) the Committee had no jurisdiction to deal with issues of conflict of interests.
Hon. Pule agreed, notwithstanding the reservations expressed above, that she would continue to participate in the process.
The Panel considered Hon. Masutha submission and dealt with the substantive issues related to the jurisdiction of the Panel to continue with the hearing. The Panel noted that Hon. Pule had agreed to continue despite the alleged shortcomings of the processes which the Panel disputes.
A response on certain material procedural issues, as prepared by the Constitutional and Legal Services Office, was made available to Mr Masutha and is attached as annexure -A‖ hereto.
B. Opening Statement of Ms F Mahomed (Registrar)
The allegations outlined above were put to Hon. Pule by the Registrar.
In her opening remarks the Registrar gave some background information to the Panel and outlined what were undisputed facts in the process, namely that the ICT Indaba was mooted prior to Hon. Pule's tenure as Minister and that the Auditor-General audited the usage of the R10 million contributed by the DOC for the ICT Indaba and found that the money was utilised for the purposes it was intended for.
The Registrar informed the Panel that it needed to consider whether:-
(i) the allegation that Mr Mngqibisa was Hon. Pule's partner, permanent companion, travelling companion or spouse was true;
(ii) any improper benefit was afforded to Mr Mngqibisa on the basis of that relationship, and whether he was allowed improper access to the Ministerial Forum of the ICT Indaba. In this regard the Registrar also highlighted that it was alleged that a senior official in the Department manipulated the process to facilitate Khemano's appointment as a service provider to Carol Bouwer Productions; and
(iii) Hon. Pule received the Christian Louboutin shoes as a gift which she failed to disclose.
The Registrar stated that there was conflicting testimony in respect of the appointment of Khemano. The Registrar also pointed out that the DOC had not provided the information requested by the Registrar to assist her in clarifying many of the allegations. She accordingly advised the Panel that they would therefore have to interrogate the parties.
In his response to the Registrar, Hon. Masutha stated that burden of proof rested with the party making the accusations.
C. Response by Hon. Pule
Hon. Pule responded directly to the Panel on the allegation that Mr Mngqibisa was her permanent companion. She stated: "I do not have a permanent companion or a spouse as a Member of Parliament or as an individual, to an extent I have nothing to declare when it comes to that because I don't have.‖ She further stated that -the relationship of comradeship and friendship does not amount to a permanent companion.‖
Hon. Pule denied receiving any Christian Louboutin shoes as a gift.
Hon. Pule addressed the issue of Mr Mngqibisa's travel by stating that -to the best of my knowledge, Honourable Chair, he has never been paid for by the Department and I have never brought anybody who was paid for by the Department.‖
D. Hon. Masutha's Response
Hon. Masutha stated, on the issue of Mr Mngqibisa's travel, that what Hon. Pule was essentially saying was that -at no stage was the person concerned registered as a companion to be able to travel with her under that system and, therefore, at no stage did the Department pay for the travel expenses of that person.‖
E. Testimony of Ms Bouwer
Ms Bouwer provided a background on how the process of the ICT Indaba unfolded. She stated that as the ICT Indaba was being planned there was a reshuffle of Members of Cabinet. The planning process had accordingly slowed down.
Ms Bouwer then met with Mr Phiri (Monte Casino Hotel) to discuss the slow progress of the ICT Indaba. It was during that meeting that Mr Phiri introduced her to Mr Mngqibisa, who had arrived separately, and suggested that Ms Bouwer utilise Khemano as a service provider.
Ms. Bouwer asserts that she was not compelled by Mr Phiri to use Khemano. Nonetheless, she later revealed that -we then had a discussion with Mr Mngqibisa about how this thing is going to work and it became increasingly clear that if we do not find common ground, I may jeopardise the ability for us to go ahead and have this Indaba.‖
When questioned about her initial partnership with Hunta Live, Ms Bouwer confirmed that she initially chose to partner with them as they were very experienced in events and she was in the process of acquiring a stake in Hunta Live and so it was a way for her to broaden her own capacity as well.
Despite this, she abandoned her partnership with Hunta Live in favour of Khemano. Ms Bouwer confirmed that she had doubted the capacity of Khemano, and conceded that ABR Consulting had to eventually be brought in to assist Khemano. Ms Bouwer further conceded in her testimony that ABR did the bulk of the work for the Indaba. Ms Bouwer stated that Khemano took charge of the finances. She also stated that Mr Mngqibisa instructed that the MTN sponsorships were paid directly into the ABR Consulting bank account.
Ms Bouwer further informed the Panel that there was an existing contract with the DOC, in respect of the ICT Indaba, for the next four years which she must still fulfil. She further confirmed that, notwithstanding this, Mr Mngqibisa had registered the name -ICT Indaba‖, which was her intellectual property, as a company without her knowledge. As a consequence she said she had resolved that she would not work with him again.
9.2. DAY TWO (3 May 2013)
A. Testimony of Dr Hadebe
Dr Hadebe informed the Panel that he could not understand the purpose of bringing Khemano in as a partner for the ICT Indaba, as in his view Hunta Live had the necessary experience and BEE credentials. He was of the view that Khemano could offer little in terms of skills. He stated that Mr Phiri told him that Hon. Pule wanted the inclusion of Khemano.
Dr Hadebe confirmed that Mr Mngqibisa had improperly attended the Ministerial Forum. The participation was strictly Ministers plus one, which was usually the Director-General or the Deputy Director-General.
Dr Hadebe was of the view that his initial judgement of Khemano's capacity was correct and they did not have the capacity to organise the event on their own. They had to therefore employ ABR Consulting to organise the event.
Dr Hadebe said that he was removed from the team because he expressed reservations about Khemano's performance and Mr Phiri was then appointed Project Manager. Later new processes were developed and Ms Booysen, a former employee of Khemano, was employed as a special adviser/project leader in the Minister's office and tasked with running the ICT Indaba project.
B. Testimony of Mr Phiri
In his testimony Mr Phiri states that he merely introduced Ms Bouwer to Mr Mngqibisa who fortuitously happened to be in the same restaurant.
When the Panel asked Mr. Phiri whether it was correct to say that he never recommended Mr. Mngqibisa as a service provider to Ms Bouwer but instead only suggested it, he replied in the affirmative and stated that he asked Ms Bouwer, -Do you think he [Mr. Mngqibisa] could be of assistance...
Mr. Phiri further stated that Mr. Mngqibisa was his acquaintance.
In response to questions about the Mexico trip allegedly undertaken by Mr Phiri, Mr Mngqibisa and Hon. Pule, Mr Phiri said -I did not see Mr Mngqibisa with my own eyes.
C. Testimony of Mr Mngqibisa
In his testimony Mr Mngqibisa said that he had experience in handling big events but did not provide substantive examples of work he had done.
On the issue of his relationship with Hon. Pule, Mr Mngqibisa said that he knew her from the ANC and respected her. He refused to answer further questions about the relationship.
In response to a question regarding the payment of R6 000 000.00 (Six Million Rand) received by him, Mr Mngqibisa said that the money was paid to his company for several months of work and he would have to pay expenses for experts etc.
Mr Mngqibisa denied being friends with Mr Phiri.
Mr Mngqibisa also informed the Panel that he was unable to retrieve the email to Ms Bouwer regarding the shoes. He stated that he had not given the shoes to Hon. Pule as alleged but stated that the invoice referred to by Ms Bouwer in fact related to shoes he had purchased in Geneva for himself.
In response to a question on who paid for his travel Mr Mngqibisa stated -I pay for myself, and I have proof that, whenever I travel it is I who pays not the government... whenever I travel the expenses are carried by me.‖ I have undertaken 80 trips overseas in the last few years.‖
9.3. DAY THREE (15 May 2013)
A. Procedural matters raised by Hon. Masutha MP
Hon. Masutha questioned the status of certain travel documents submitted by Hon. Kohler Barnard. He further questioned whether, as a result thereof, Hon. Kohler Barnard should continue to be part of the proceedings.
In her response the Registrar indicated that anybody could submit documents to her office for consideration and that these would have to be considered on their merits. This view was supported by Advocate Adhikarie, who stated that the Procedure permits for the Committee to adopt any measures which it deems reasonable and fair.
Hon. Pule further claimed that documents were deliberately withheld from her, thereby resulting in unfairness.
Certain procedural matters are dealt with in Annexure A attached hereto.
B. Testimony of Mr Sam Vilakazi
Mr Vilakazi outlined the travel procedure for a Minister within the DOC.
Mr Vilakazi testified that Hon. Pule would not be aware of who would travel with her as part of a delegation, as this is determined by officials in the DOC.
When Mr Vilakazi was presented with the documents relating to Mr Mngqibisa's Mexico trip, he stated that he could not verify the documents as the DOC file related to
the Mexico trip was missing. He also testified that there was no process in the DOC that required Hon. Pule to record her spouse.
C. Testimony of Mr Mngqibisa (recalled)
When presented with the details of the Mexico trip of 2009, Mr Mngqibisa testified that he was invited to attend the trip by the DOC. Mr Mngqibisa indicated that he travelled with officials but could not recall who these officials were.
The Chairperson asked Mr Mngqibisa whether, on his way to Mexico and back, he travelled in a party of officials and Hon. Pule. Mr Mngqibisa responded in the affirmative.
Mr Mngqibisa declined to answer a question relating to where he stayed during the Mexico trip and he could not describe the meeting or any contribution made by him. When questioned on the affidavit of Ms Tsakane regarding the relationship with Hon. Pule during the trip to Czech Republic, France and Mexico in June 2011, Mr Mngqibisa responded -my private life is my private life‖.
9.4. DAY FOUR (16 MAY 2013)
Hon. Masutha tabled a submission in respect of the proceedings of the Panel. The objections dealt with the fairness of the proceedings. Hon. Masutha raised the following matters:
a) A document that is introduced during the hearing must be done by a witness under oath that is present at the hearing.
b) The investigation should have been completed before the hearing.
c) Whether it was proper for a Panel member to produce evidence.
d) No witnesses could be produced if Hon. Pule was not informed of this by 2 May 2013.
e) The non-availability of the transcript has been prejudicial.
A. DR B HADEBE RECALLED
Hon. Masutha tabled a press article alleging that Dr Hadebe was removed from the roll of medical doctors, questioning Dr Hadebe's integrity.
Dr Hadebe confirmed that he was removed from the roll because he had practised as a doctor prior to graduating. He explained that this was common practice amongst final year medical students and that he did it to earn money to pay his residence fees.
When interrogated about his affidavit he confirmed that he stood by his original affidavit and testimony. In particular Dr Hadebe once again confirmed that there was no talk of Khemano's involvement in the ICT Indaba until the Hon. Pule was appointed.
9.5. DAY FIVE (13 June 2013)
A. HON. MASUTHA
Hon. Masutha once again requested to address the Panel on procedural matters. The Chairperson responded that the Panel would first hear the witnesses as they had to return to Johannesburg, and then proceed with the procedural matters. Hon. Masutha advised that under those circumstances he would not be able to represent Hon. Pule and wished to withdraw.
Adv Adhikarie advised that the hearing had taken the form of oral proceedings; however nothing precluded the Committee from considering written evidence and advised that the Committee could proceed on that basis.
B. CHAIRPERSON B TUROK
The Chairperson requested that the Panel be allowed to caucus before a final decision on procedure was made. The Chairperson also made the point that the Panel had agreed to postpone proceedings on two occasions as Hon. Pule was unavailable and she had arrived an hour late for the proceedings, thus causing a delay. The Panel agreed that the Hon. Masutha be given 15 minutes to make the submission, on procedural issues, which was read by Hon. Pule.
C. SUBMISSION READ BY HON. PULE
Hon. Pule questioned the ability of the Panel to keep the proceedings confidential. She alleged that her representative was denied the right to fully cross-examine the witness, and that there was a tandem process between the Panel and the press. They also referred to the alleged denial of Hon. Pule's representative to cross- examine a witness. Hon. Pule questioned the procedure of the hearing and the fairness of the process.
During the process of Hon. Pule reading the submission the Chairperson requested that the witnesses be heard, as there were no new points, and promised to consider her submission later. The Panel also agreed that the witnesses, Ms Mahlaule and Ms Baloyi, be asked to confirm their testimony, and gave the Hon. Pule an opportunity to question the witnesses. The Panel agreed to forego any further questions to allow the process to proceed.
D. Ms T MAHLAULE
Ms Mahlaule confirmed in her testimony the content of her affidavit which was submitted under oath.
Hon. Pule contested Ms Mahlaule's affidavit in respect of when they met and said that the correct fact was that Ms Mahlaule approached her and indicated that she would like to work for her. Hon. Pule disputed that Mr Mngqibisa recommended Ms Mahlaule and said that another person had recommended Ms Mahlaule to her. Hon. Pule also disputed that she went to Paris for shopping with Ms Mahlaule; however, Ms Mahlaule indicated that she took Hon. Pule's passport to her when Hon. Pule was shopping in Paris.
E. MS BALOYI
Ms Baloyi was asked to confirm whether that she had signed the DOC Travel forms with the order numbers 1387/1388 for the trip to Monterrey, Mexico in 2009, and whether the documents were authentic. The form 1388 reflects Mr Mngqibisa as Deputy Minister's companion. She confirmed that the order forms which were presented to her were authentic.
She also verified the authenticity of an internal memorandum dated 18 August 2009 in which Hon. Pule nominated Mr Mngqibisa as her spouse.
10. SECURITY MATTERS
The Panel was informed that Parliament's Head of Security Services and Management had received information of a threat to harm the Chairperson of the Panel and Registrar and to disrupt the proceedings of the Panel. These threats were reported to the authorities and appropriate measures were taken to safeguard the work of the Panel and its personnel.
11. CONSIDERATION OF THE EVIDENCE
11.1. Allegation in respect of gift of the Christian Louboutin Shoes
Allegations were made that Hon. Pule received the shoes from Mr Mngqibisa as a gift, but the evidence could not be obtained from either Mr Mngqibisa or Ms Bouwer. The email referred to in the media could not be obtained from either Ms Bouwer or Mr Mngqibisa. The allegations cannot be substantiated, therefore there is no breach.
11.2. Allegation that Mr Mngqibisa is Hon. Pule's permanent companion, spouse, partner or travelling companion
11.2.1. Hon. Pule has categorically denied the allegation. In her testimony Hon. Pule stated that the DOC never paid for Mr Mngqibisa's travel.
11.2.2. However the Panel has in its possession travel forms which reflect that Hon. Pule in 2009 travelled with Mr Mngqibisa to Monterrey, Mexico, and that this trip was paid for by the DOC. The travel documents describe Mr Mngqibisa as Hon. Pule's companion or spouse. As previously stated, Ms Baloyi, the official who signed the form and authorised the trip, confirmed the authenticity of the forms.
11.2.3. In his first testimony Mr Mngqibisa denied that the DOC ever paid for any of his travel. However when confronted with the documentary evidence on the day that he was recalled, Mr Mngqibisa asserted that he attended the trip as part of the delegation. However, he is unable to recall any of the presentations he made or describe his role during the trip.
11.2.4. Mr Phiri's report contradicts Mr Mngqibisa's version that he was a delegate to the conference. Mr Phiri's report names only two delegates, himself and Hon. Pule.
11.2.5. In Mr Phiri's testimony he denies seeing Mr Mngqibisa in Mexico, yet Mr Mngqibisa contradicts this and declares that he travelled with the officials. In response to questions on where he was accommodated in Mexico, Mr Mngqibisa refused to respond.
11.2.6. Mr Tsakane Mahlaule's affidavit further refutes the denials by Hon. Pule and Mr Mngqibisa. Mr Mngqibisa was Hon. Pule's partner. Mr Mngqibisa and Hon. Pule travelled together to various destinations in the period June - July 2011 during which they shared hotel accommodation.
(a) Prague 21-24 June 2011
Hon. Pule and Mr Mngqibisa flew on the same flight, they had two cars one for Hon. Pule and Mr Mngqibisa and the other for Ms Mahlaule. Hon. Pule and Mr Mngqibisa shared accommodation at the Prague Marriot Hotel and were hosted by Ms Botha,
Ambassador to Czech Republic
(b) Paris 24-26 June 2011
Hon. Pule, Mr Mngqibisa and Ms Mahlaule travelled together to Paris, where they rested and shopped. Road travel arrangements were the same for Prague. Hon. Pule and Mr Mngqibisa shared a suite at the Renaissance Hotel.
(c) Mexico City 26-29 June 2011
Ms Mahlaule and Hon. Pule stayed at the Hotel InterContinental President. Hon. Pule had her own driver and Ms Mahlaule travelled with other delegates. Hon. Pule travelled back to South Africa while Ms Mahlaule remained for the rest of the study tour.
(d) Washington DC 7 -11 July 2011
Hon. Pule, Ms Mahlaule and Ms Mngqibisa arrived at different times. Road travel arrangements were the same as for Prague. Hon. Pule and Mr Mngqibisa shared suites at Williard Hotel.
(e) New York City 11-13 July 2011
Hon. Pule, Mr Mngqibisa and Ms Mahlaule were on the same flight. Road travel arrangements were the same as for Prague. Hon. Pule and Mr Mngqibisa shared a suite at Ritz Carlton in Central Park.
11.2.7. Mr Mngqibisa refused to respond to Ms Mahlaule's affidavit stating that these are private matters. In the cross-examination of Ms Mahlaule, Hon. Pule did not refute the substance of Ms Mahlaule's testimony.
11.2.8. Ms Sandra Botha's submission of slips for a meal in Prague confirms Ms Mahlaule's testimony that Hon. Pule travelled with Mr Mngqibisa as her partner‖.
11.2.9. Mr Vilakazi's response to the Panel was evasive and it appears that he intended to mislead the Panel in his responses relating to processes in the DOC.
11.2.10. The internal memorandum from the office of the Hon. Pule, which was verified as authentic by Ms Baloyi, shows Mr Mngqibisa as her spouse in 2009. The internal memorandum which reflects that the Hon. Pule nominated Mr Mngqibisa as her spouse was not contested by the Hon. Pule in her cross- examination of Ms Baloyi.
11.2.11. The Code defines a permanent companion -as a person who is publicly acknowledged as the Member's companion.‖ In the evidence provided by Ms Mahlaule in her affidavit, the relationship extended into the public arena where the Member travelled and shared accommodation with Mr Mngqibisa on several occasions, thereby publicly acknowledging him as her partner.
11.2.12. The weight of the evidence combined reflects that Hon. Pule and Mr Mngqibisa had a relationship from 2009 when they went to Monterrey in Mexico until at least July 2012.
11.3. Allegation relating to the non-disclosure of Mr Mngqibisa as a spouse/ permanent companion leading to his receiving improper benefits
In considering whether Mr Mngqibisa benefitted improperly by virtue of his relationship with Hon. Pule the following is important to note:-
a) The evidence reflects that Khemano was imposed on Ms. Bouwer. While she says that there was no open pressure, it is obvious that she understood the implications of her refusing to submit to Khemano's participation.
b) The nature of the business relationship between Khemano and Carol Bouwer leads to a number of questions:-
(i) How did the control of the project go from the initiator of the project (Ms Bouwer) to the sub-contractor (Khemano)?
(ii) Why was the MTN sponsorship of R15 000 000.00 (Fifteen Million Rand) not paid to Carol Bouwer Productions but instead paid to Khemano via ABR?
(iii) Why did Mr Mngqibisa register a company with the name ICT Indaba with him as the sole member of the Company despite acknowledging to the Panel that the intellectual property rights of the ICT Indaba concept belongs to Ms Bouwer?
(iv) Why did Khemano receive a bigger payment despite the fact that the bulk of the work was done by ABR?
(v) Why did Ms Bouwer, who by her own admission was deeply committed to the project, relinquish control of the ICT Indaba Project and act in a manner which ultimately prejudiced her own business interests? Her actions imply that she was acting under undue influence.
c) Mr Phiri contradicts himself on the issue of the meeting between Ms Bouwer and Mr Mngqibisa. He firstly claims the meeting was a coincidental meeting, and then he states that Mr Mngqibisa was his friend and that is why they met that evening, and thereafter denies any friendship during his testimony. The question is whether Mr Phiri
acted on his own or on behalf of Hon. Pule when he instigated the meeting between Ms. Bouwer and Mr Mngqibisa.
d) Mr Hendrikse states that Mr Mngqibisa told him that he acts on behalf of Hon. Pule. This is supported by Dr Hadebe's testimony that Mr Phiri informed him that Hon. Pule wanted Khemano.
e) The placement of Ms Booysen from Khemano in Hon. Pule's office reflects that Hon. Pule was directly involved in this process.
f) It is clear that Mr Mngqibisa operates in the sector which Hon. Pule controls and because of his relationship with Hon. Pule he has received an unfair advantage in relation to the access he has to various industry role-players. By his own account he is a businessman seeking opportunity wherever it may be.
11.4. Disclosure in respect of Paragraph 13 of the Code for Members of Parliament
11.4.1. The purpose of Paragraph 13 of the Code is to ensure that when a Member interacts with an organ of state and there is a financial benefit to his/her partner that flow from that interaction, there must be disclosure. The purpose of the disclosure is to ensure transparency and accountability of Members. Hon. Pule communicated with Telkom and the DOC on the matter of the ICT Indaba but failed to disclose that the ICT Indaba would financially benefit her permanent companion.
11.4.2. Hon. Pule stated on affidavit that -sponsorship had already been obtained from Telkom before her becoming Minister of the DOC‖. However, the contract of sponsorship is signed on 10 May 2012, when Hon. Pule was already in office. Furthermore, an e-mail between Mr Phiri and Telkom refers to a letter sent by Hon. Pule prior to this date on the matter of the sponsorship.
11.4.3. Hon. Pule's testimony under oath regarding her relationship with Mr Mngqibisa is inconsistent with the facts as is her statements regarding Telkom.
11.5. Hon. Pule in her response to the Panel has wilfully misled the Panel
Hon. Pule has in her response under oath denied that Mr Mngqibisa was her spouse. She also denied that the DOC had at any stage paid for Mr Mngqibisa's travel. The Panel had afforded Hon. Pule an opportunity to rectify her statement at the beginning of the hearing process, Hon. Pule declined and continued to deny the relationship with Mr Mngqibisa despite being fully aware that she was misleading the Panel.
12. CONSIDERATION OF PROCEDURAL MATTERS
Hon. Masutha placed several lengthy submissions objecting to the procedure.
12.1. Late Submission of documentation
Hon. Masutha alleges that Hon. Pule was provided with the evidence late. His assertion is factually incorrect. The Bundle of evidence for the Hearing was made available to Hon. Pule on 5 April 2013 and not 29 April 2013 as alleged. Hon. Pule's office informed the Registrar that they could not collect the Bundle on Friday 5 April 2013, and requested that it be couriered on Monday 8 April 2013, which was duly complied with. Thereafter, a second set of documents, identical to the first, was requested and this was sent on 29 April 2013.
12.2. Request to be Informed of the Identity of the Complainant
Despite having received complaints, the Committee in fact acted on its own accord. Hon. Pule was provided with a detailed account of the allegations against her and thus the identity of the complainant is in fact irrelevant.
12.3. Changes to the Notice of Hearing
Changes to the Notice of Hearing were made to ensure that the Hearings were held in terms of the Code.
12.4. Access to Transcripts of the Proceedings
The Panel agreed to allow Hon. Masutha copies of the voice files of each day's hearings as soon as these were required and the Committee also permitted Hon. Masutha an assistant to ensure that he was able to properly record the proceedings.
The provision of transcripts during the proceedings is not an automatic right, yet great effort was made to facilitate this. However it was not always possible to provide the transcripts in terms of the time schedule required by Hon. Pule. It must be borne in mind that this matter is highly confidential and the transcripts accordingly had to be prepared by a senior official, who worked tirelessly to complete it.
Nevertheless Hon. Pule and Masutha were present throughout the presentation of evidence.
12.5. Alleged prejudice to Hon. Pule
The Chairperson explained that his comment to the media on the number of pages of evidence was an estimate only and all evidence was in fact furnished to Hon. Pule.
Submission on 13 June 2013
12.6. Hon. Pule presented the following submission
The integrity of the process has been compromised as there is a tandem process being conducted with the media. Hon. Pule's representative states that Hon. Pule was not afforded the right to fairly cross-examine the witness, Dr Hadebe. He once again questioned the process of the hearing and the submission of evidence during the hearing. This issue is addressed in the consideration of the findings.
Submission made by Hon. Pule on 15 May 2013
12.7. Documents handed over by Ms Kohler Barnard to the Registrar
Ms Kohler Barnard handed in to the Registrar documents which she had received, which is correct in terms of the procedure.
12. 8. Documents or evidence tabled during the hearing process
The admissibility of evidence during the hearing process is dealt with in the legal opinion (Annexure A). It must be noted that evidence that emerged as a result of the hearing required further corroboration.
12. 9. Prior notice of the witnesses to be called
Hon. Pule in her submission said that she should have had prior notice of all witnesses to be called. Hon. Pule was handed all the documents and had full opportunity to question the witnesses. This issue is addressed in the consideration of the findings.
12.10. The admissibility of evidence.
Hon. Pule's representative raised legal issues regarding the treatment of evidence and the hearing processes, which are substantively addressed in the legal opinion attached.
Submission on 16 May 2013
12.11. Hon. Pule's representative referred to the fairness of the procedure, the right of Hon. Pule to cross-examine witnesses, the perception of guilt created by the alleged 2000 pages of evidence, the submission of documents by a Panel member, no witnesses should have been introduced if they were not given notice of this before the proceedings commenced, the non-availability of the transcripts, and its impact on his ability to properly represent Hon. Pule.
13. SUBMISSIONS MADE BY HON. PULE
The Panel heard the matter in accordance with the standards of consistency, fairness and promptness. The submission by Hon. Masutha on behalf of Hon. Pule on procedural matters is found to be devoid of substance. The Panel noted that the same complaints were raised over and over again throughout the hearing. Specifically, the Panel considered the material complaints and finds as follows:
a) In respect of the complaint that they were not provided with information/transcripts provided in good time, the Panel finds that the Registrar had provided full and timeous access to information requested during the course of the hearing and that the complaint was unfounded.
b) In respect of the complaint about the lack of opportunity for cross- examination, the Panel finds that every reasonable opportunity was granted to Hon. Pule and Hon. Masutha to do exactly that. The Panel only intervened to protect witnesses when they were being badgered by repetitive and irrelevant issues.
14. HON. PULE'S DEFENSE
The Panel finds that-
a) Hon. Pule's defence was based on evidence that was later proven to be false.
b) Hon. Pule's defence held back the proceedings due to continued and unfounded attacks on the procedural fairness of the hearing.
c) There is a perception of collusion between Hon. Pule, Mr. Mngqibisa and senior officials of the DOC to wilfully mislead the Panel.
d) Cross examination was limited to irrelevant matters that did little to clarify Hon. Pule's defence.
The Committee makes the following findings-
15.1. Hon. Pule breached Paragraph 9 (g) of the Code as she did not disclose the financial interests of her permanent companion/spouse. In this regard Hon. Pule wilfully provided the Registrar with incorrect and misleading details. The Panel finds that the evidence presented on the material aspects of the case by Hon. Pule, Mr Mngqibisa, Mr Vilakazi and Mr Phiri was unreliable and untrustworthy. The Panel accordingly rejects this evidence.
15.2. Hon. Pule breached paragraph 13 of the Code. Paragraph 13 of the Code requires that a member must declare private interests when making representations as a member to a Cabinet Member or any other organ of state with regard to a matter in which that member or any spouse, permanent companion or business partner of that member has a personal or private financial or business interest. The Panel is satisfied, on the evidence available to it, that Hon. Pule did not disclose to Telkom that her permanent companion had a financial interest in the ICT Indaba which Telkom was sponsoring. Hon. Pule as an Executive Member she should not have put herself in a position where she had a conflict of interest. In this matter there was a clear overlap between Hon. Pule's official duties in her oversight role of Telkom and her facilitation of funding for the ICT Indaba.
15.3. On the allegation that Hon. Pule breached paragraph 7 (f) of the Code in that she received a pair of Christian Louboutin shoes as a gift from Mr Mngqibisa, the Panel finds that there is no breach. There was not sufficient evidence to prove the allegation.
15.4. Hon. Pule breached paragraph 16 (b) of the Code by providing the Registrar with incorrect or misleading details. Hon. Pule denied that Mngqibisa was her permanent companion; however the facts prove otherwise. The evidence, prove that Hon. Pule, through her conduct, publicly acknowledged Mr Mngqibisa as her longstanding and permanent companion. This conduct was demonstrated as follows:
(a) her admission that she had a relationship of "comradeship and friend- ship" with him;
(b) through her association with him in both the public arena and in her official capacity;
(c) sharing hotel accommodation/suites with him ;
(d) travelling with him on numerous international trips;
(e) nominated him as her spouse or companion; and
(f) sharing hired cars during official trips, to wit exclusive use of one car, while the rest of the delegation travelled separately.
The Committee notes that the concealment of the relationship by Hon. Pule enabled Mr Mngqibisa to gain improper financial benefit. In particular Mr. Mngqibisa, through Hon. Pule's influence, benefited improperly by receiving R6 million for his company and enjoyed the benefit of the DOC paying for his overseas trips and accommodation.
The continued denial of the relationship during the proceedings further reflects the intent to wilfully mislead the Panel. Hon Pule should rectify the non- disclosure of interests and make complete declaration on the interests as required in terms of the Code.
16.1. Paragraph 19 (1) of the Code states that the Committee must recommend the imposition of one or more of the following penalties where it has found that a member has breached a provision of this Code -
(a) a reprimand in the House;
(b) a fine not exceeding the value of 30 days' salary;
(c) a reduction of salary or allowances for a period not exceeding 15 days; or
(d) the suspension of privileges or a member's right to a seat in Parliamentary debates or committees for a period not exceeding 15 days.
16.2.1 In view of the Findings, the Committee finds that the transgression of the Code is of such a serious nature and recommends that Hon. Pule is-
(a) issued with a reprimand in the House;
(b) fined 30 days' salary; and
(c) the suspension of privileges and Hon Pule's right to a seat in Parliamentary debates or committees for a period of 15 days.
16.2.2 Submit full details in respect of the non-disclosure and correct the incomplete declaration for the respective years.
17 FURTHER RECOMMENDATIONS
17.1. That the Presidency consider measures to address:
a) The Relationship between the DOC and other Entities
In its deliberation of the complaint the Panel found that there were no appropriate measures in place to ensure that when the DOC raises funds for various activities that this does not impact on its oversight role of the entities it oversees. It is crucial that protocols are developed to ensure that the fundraising efforts of departments do not undermine the Departments constitutional roles. It is also important for the Department to be circumspect in the manner in which it approaches industry role-players in its sector for funding, to ensure that these approaches do not undermine the role of the Department.
17.2. Lack of cooperation by DOC Officials to be referred to the Public Service Commission for further investigation into whether the officials committed misconduct in respect of the following:
(i) Those officials who ignored the Panel's Notice of Hearing and never appeared for the Hearing despite confirming receipt thereof.
(ii) The DOC submitted incomplete information relating to a number of trips. Documents requested by the Panel had -disappeared. This includes delaying tactics when required to produce documentation
17.3. That Parliament refers to the South African Police Services and the National Prosecuting Authority the potential breach of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act 4 of 2004.
(a) Breach of Section 16(3)
The persons named in this report who are alleged to have wilfully furnished a Parliamentary Committee with misleading information.
(b) Breach 7(a)(d) and 26
That steps be taken against those persons responsible for threatening the Chairperson and Registrar, based on the information obtained by SAPS in respect thereof.
17.4. That this Report be referred to the South African Police Services and National Prosecution Authority to consideration of matters in this report in terms of their mandate.
17.5. That the revision of the Code be expedited.
17.6. That the penalties in the Code be increased.
BL Mashile Co-Chairperson
B Turok Co-Chairperson
Issued by Parliament, August 7 2013
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