‘We will invite Brigadier Burger [to appear before us] and expect his response within seven working days. In the event that he is not agreeable to appear before the committee then a subpoena will be issued,” was how Standing Committee on Public Accounts (Scopa) chairperson, IFP MP Mkhuleko Hlengwa, wrapped it up after 25 October was set as the date for Burger’s appearance.

This was the outcome after former police brigadier Jap Burger twice snubbed Scopa after it had invited him to appear at its investigative hearings into claims of mismanagement and corruption at Eskom made by ex-CEO André de Ruyter in a televised interview in February.

De Ruyter told MPs in April, “This officer [Burger] has had full access to all of the intelligence gathered and has stated to me that he has kept his line command informed.”

Read more in Daily Maverick: Tight-lipped De Ruyter rejects ANC claims of Eskom corruption inaction — points to Gordhan, Mufamadi for answers

Burger was identified by national police commissioner Lieutenant-General Fannie Masemola as the liaison during Scopa hearings. Burger failed to arrive at the hearings on 7 June and again on 13 September. Instead of Burger, Scopa dealt with a letter the now retired policeman had sent to the Speaker claiming that Eskom was not only a National Key Point but also a national security concern and thus matters of organised crime and corruption at the power utility were beyond public or political scrutiny until aired in court.

Read more in Daily Maverick: SAPS brigadier cocks a snook at Scopa, invoking national security, and calls for MPs to be disciplined

Not so, Scopa decided across party political lines on Tuesday. Moving to summons someone is rare, as those asked to appear before committees usually comply without being subpoenaed. DA MP Alf Lees’s proposal of one last request to appear before issuing a subpoena was accepted.

Groundbreaking opinion

The parliamentary legal opinion is groundbreaking in that it sets out in detail why no blanket shield using national security or classified information exists to sidestep public accountability, particularly to Parliament. 

Exceptions, including disclosure in the public interest, exist in security legislation like the National Key Point Act, National Strategic Intelligence Act and the Protection of Information Act. 

The 1996 minimum information security standard policy that deals with classification expressly states in clause 3(4), “Security measures are not intended and should not be applied to cover up maladministration, corruption, criminal actions … or to protect individuals/officials involved in such cases.” 

This legal opinion comes at a crucial time — ministers and others have raised security concerns, even commercial sensitivities, to avoid fully answering questions.

For example, Police Minister Bheki Cele’s parliamentary reply that shows significant understaffing in SAPS specialised units does so with the caveat, “The allocation of individual units cannot be disclosed, as detailed information that is made public … may pose a threat to the safety and security of SAPS personnel deployed.”

On Tuesday, Parliament’s legal adviser, Frank Jenkins, told MPs that contrary to what Burger claimed, Eskom, as an entity, was not a National Key Point — only some of its power plants were.

“Parliament is also a National Key Point. If the Secretary to Parliament would refuse to appear before the Joint Standing Committee on the Financial Management of Parliament [invoking National Key Point status], it will be an absurdity.”

In any case, the National Key Point Act, the apartheid law that remains in force, refers only to unauthorised persons not being allowed to disclose information on security measures and incidents.

The apartheid-era Protection of Information Act makes it an offence to disclose information relating to “the defence of the Republic” and relating to a “security matter”, including intelligence services matters.

Examples of such risks to “the defence of the Republic” include military tactics, military exercises or operations, characteristics or deployment of weapons, and the characteristics, deployment or functions of any military force and any person involved in preventing or curtailing “subversive or hostile activities”, according to the 2000 Promotion of Access to Information Act. 

The 1994 National Strategic Intelligence Act defines national security intelligence as “intelligence which relates to or may be relevant to the assessment of any threat or potential threat to the security of the Republic in any field” to encompass terrorism, espionage, acts and/or violence to undermine the “constructional order” of South Africa.

The 1995 SAPS Act, in section 70, makes it a criminal offence for the police to “wilfully disclose information” when it’s reasonably known this could be to the detriment of policing. The Constitution defines policing responsibilities as preventing and investigating crime, maintaining public order, upholding the law and protecting South Africa’s inhabitants and their property.

So, the law does not support invoking a blanket shield of national security — even if Burger did, as did many others in the security services. Instead, national security information “may only be protected as necessary to safeguard national security interests. Such interests cannot extend to the non-disclosure of information for the purposes of avoiding accountability or protecting any individuals,” according to the legal opinion.

And Scopa is within its rights to subpoena Burger, and ask questions related to Scopa’s mandate of investigating financial mismanagement — from procurement and theft, to what was done to redress this and the status of such actions.

That Scopa decided to continue its Eskom hearings strikes a blow for transparency and accountability. What happens next is up to Burger. DM