Release of Donen Commission Report

07 December 2011

On 17 October 2011, President Jacob Zuma indicated that he would release the Report on the Commission of inquiry to conduct an investigation into the alleged illicit activities of certain South African companies or individuals relating to the United Nations Oil - for Food Programme in Iraq commonly known as the Donen Commission on or before 7 December 2011. The report is being released today in keeping with that undertaking.

The Commission was established on 17 February 2006 by former President Thabo Mbeki. He appointed Advocate Michael Donen SC as Chairperson. The other two members were Advocate Andrew Chauke and Senior Superintendent Lucy Moleka.

TERMS OF REFERENCE OF THE COMMISSION

1. The Commission of inquiry (hereinafter referred to as the Commission) shall conduct an investigation under the following terms of reference:

(i) Having regard to the Constitution of the Republic of South Africa, other relevant legislation, International Law, South Africa's international law obligations deriving from UN Resolutions regarding the following matters:

(a) Whether the alleged surcharges on oil sales or illicit payments in regard to purchases of humanitarian goods or any other illicit payments in respect of the programme, or the offer to make such payments, referred to in the Report of the IIC and identified and set out in the attached Annexure, were in fact paid or offered to be paid, by such identified South African companies or individuals;

(b) If so, whether any such conduct, as outlined in the Annexure, of any such South African company or person, falls within the jurisdiction of a South African court of law; and
(c) If so, whether any conduct, as outlined in the Annexure, of any such company or person, amounts to the commission of-

(aa) Any offence, which offence may be tried by a South African court of law and whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution; or

(bb) any other illegal, illicit or irregular activity, which does not necessarily constitute an offence, but contravenes or violates any other South African law.

(d) In the case of the commission of any offence or illegal, illicit, irregular activity contemplated in paragraph 1(i)(c)(aa) or (bb) above, any proposed action or steps to be taken in respect of such offence, contravention or violation.

(e) Any further proposed actions or steps to be taken to prevent companies or persons falling under South African jurisdiction, from getting involved in future illegal, illicit or irregular international activities, for example, sanction-busting in respect of international imposed sanctions, including the enactment of legislative measures or the establishment of systems and mechanisms, to ensure that such companies and persons do not, in future contravene binding UN resolutions.

(ii) As a first step in the investigation, all evidence and information obtained and assessed by the IIC, which relate to South African companies or individuals and which may assist in this investigation, must be accessed and analysed.

(2) The Commission shall commence with its duties forthwith and must report to the President within three months from date of the establishment thereof, or with the consent of the President, as soon as possible thereafter.

DURATION OF THE COMMISSION

The commission was expected to report to the President within three months of 17 February 2006, or with consent of the President, as soon as possible thereafter. The period was later extended to 30 September 2006.

At the end of September 2006, the Chairperson asked for further extension by three months. Former President Mbeki did not grant the extension. The Commission has consequently submitted the following reports to the President: Interim Report in May 2006, the June Report and the September 2006 Report.

Former President Mbeki decided against releasing the report pending the advice from the Chief State Law advisor and due to its incompleteness amongst other reasons.

We reiterate that President Zuma has decided to release the report despite the potential for misuse of the contents, as he is of the view that the public interest will be served by the public release of the Report. It is hoped that the release will end the gossip, speculation, misconceptions and misperceptions.

There are some important facts that must be noted by the readers of the report.  Firstly, all those who were caught up in the subject matter of the inquiry were not the subjects of the Commission's investigation and did not have an opportunity to present their version of events fully.

In addition, much of the Commission's collection of information did not involve evidence on oath with the test of cross-examination being applied.

The President wrote to the Deputy President and Minister Sexwale on 5 November 2010 and furnished them with the report.

The Donen Commission report is in three parts: namely, the interim Report dated 16 May 2006, the June report dated 17 June 2006 and the September 2006 report. The clamour for release has related to the September report.

We wish to stress that the reports must be read together and not as standalone documents.

Accompanying this three part report is a letter written by the chairperson, Adv Donen SC, to the then Director-General in the Presidency, dated 28 August 2009. This letter is also being released today with the agreement of Adv. Donen SC. He wrote it because he found that the leaked versions of the Commission report first published in the media on 23 August 2009, had created misconceptions about the true content of the Commission reports.

These misconceptions severely impugned the character and dignity of several persons.

In the light of these circumstances we draw the attention of the readers of the Donen Report to the following:

• The Commission found that no one whose name featured in their investigation had contravened any South African law.
• Adv Donen's letter explicitly states that "the three persons ‘named' by the media, such as the Honourable Deputy President Kgalema Motlanthe, the Honourable Minister of Human Settlements Tokyo Sexwale, and the Director- General of the Department of Minerals and Energy, Advocate Sandile Nogxina were not the subjects of the Commission's investigation."
• Deputy President Motlanthe, who was at the time the Secretary-General of the African National Congress, had intervened with the authorities in Iraq in order to ensure that they adhered to the decisions and rules determined the UN Security Council Oil for Food Programme in Iraq.

Adv Donen SC also states that the former Director-General of the Department of Minerals and Energy, Adv.  Sandile Nogxina, "made a valuable contribution to the Commission's work", that "no blame could be attached to the Director-General" and that "his personal involvement as a participant in illicit activities was so remote as to not even warrant any consideration of his culpability or otherwise".

In the case of the Minister of Human Settlements, the Commission "exonerated Mr Sexwale from liability as a participant in illicit activities".

The report states that the late Mr Sandile Majali had undertaken to pay the surcharge to the Iraqi authorities, contrary to the UN programme; that it seemed he had only made partial surcharge payments and that again there was no evidence that he had acted contrary to any South African laws.

It has to be stressed that the Donen Report does not make any definitive final findings in respect of the conduct of the named individuals in so far as the impact of such conduct on United Nations Resolutions and Policy is concerned.

The comments made in the Report are not to be elevated to findings of fact.  These were interim and untried comments as the Report recognizes.

They must be treated as such.

The September 2006 Report proposed actions or steps to be taken to prevent companies or persons falling under South African jurisdiction from becoming involved in future illegal or irregular international activities, including sanction busting in respect of internationally imposed sanctions. The President has requested the Minister of Justice and Constitutional Development to review the IIC Report, the Donen Report and the opinion from the Chief State Law Advisor and consider passing the relevant legislation and/or amend existing legislation to rectify any shortcomings in our domestic law.

The full report and the letter by Adv. Donen SC are available: click here 

Statement issued by Mac Maharaj, The Presidency, December 7 2011

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