Parliament’s standing committee on public accounts (Scopa) is giving retired police investigator Brig Jaap Burger one last chance to appear before the committee about his role in investigating malfeasance at Eskom.
Burger has twice ignored invitations to appear before parliament’s public finance watchdog and instead wrote to National Assembly speaker Nosiviwe Mapisa-Nqakula questioning the committee’s powers to deal with the matters he was investigating.
On Tuesday Scopa resolved to give Burger seven working days to respond to its invitation to appear before the committee on Eskom-related investigations. If he fails to respond within the stipulated time, the committee will subpoena him to appear on October 25, it said.
After Burger’s non-appearances in June and September, Scopa sought legal advice on the challenge of its powers and jurisdiction and whether the committee could summon the officer.
The committee has been trying to get to the bottom of corruption allegations made by former Eskom CEO Andre de Ruyter during a TV interview in February, where he claimed cartels and politicians were looting the power utility.
Several witnesses who appeared before the committee, including De Ruyter and President Cyril Ramaphosa’s security adviser Sydney Mufamadi, made references to Burger and his liaison role between De Ruyter, private investigators, law enforcement agencies and politicians.
But Burger has been reluctant to appear before Scopa.
When he did not arrive at its meeting in June, police national commissioner Gen Fannie Masemola told the committee Burger had requested to appear in-camera, as he was concerned about what would happen to him after appearing publicly before Scopa.
In his letter to Mapisa-Nqakula two weeks later, Burger explained that his non-attendance was due, inter alia, to Eskom being a national key point and that Scopa had no mandate to deal with national security matters.
He noted that “security competence” requires that classified information or material should not be allowed to fall into unauthorised hands, thereby harming or endangering the security interests of the state.
Burger also contended that national security matters, and in particular investigations into organised crime and corruption, are classified in nature and not open to public or political scrutiny until in court.
There is no organ of state which is subjected to the exclusive oversight jurisdiction of any single portfolio committee to the exclusion of Scopa
— Parliament’s legal office
He suggested that the allegations should be dealt with in a closed meeting by the joint-standing committee on intelligence (JSCI) which sits behind closed doors, together with the police, justice and correctional services and the public enterprises committees.
Parliament’s legal office disagreed. It dismissed Burger’s reasons and said Scopa was accordingly mandated to conduct financial oversight over all organs of state.
“To some degree there will be an overlap between the functions of Scopa and the oversight mandate of other portfolio committees. This is an intended overlap in our parliamentary system and therefore there is no organ of state which is subjected to the exclusive oversight jurisdiction of any single portfolio committee to the exclusion of Scopa.”
The legal opinion also dismissed Burger’s assertion that information about a “national key point” can’t be shared in a public committee such as Scopa. Eskom as an entity is not a national key point for purposes of the National Key Point Act, but rather its power stations have separately been declared as such, it said. This had to do with ensuring they are properly secured.
The legal opinion confirmed that Scopa is legally mandated to summons any person to appear before it, provided the questions put to the person, or the information sought from the person is in pursuit of the committee’s oversight mandate.
That Burger is now retired and therefore discharged from the SAPS is not an impediment to him being asked to provide oral evidence and/or to submit records or information in pursuit of Scopa’s oversight inquiry.
De Ruyter told Scopa in April that he had provided all the information at his disposal to a police officer who was designated by Masemola to be the liaison with the intelligence operation investigating the allegation.
“This officer has had full access to all of the intelligence gathered and has stated to me that he has kept his line command informed,” said De Ruyter at the time.
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