Parliament's Standing Committee on Public Accounts (Scopa) has resolved to request retired South African Police Service (Saps) Brigadier Jap Burger one more time to voluntarily appear before the committee on matters related to corruption at Eskom or face a subpoena. 

It is rare for Parliament to use its powers of subpoena, which is regarded as an "extraordinary measure" and "a measure of last resort".

Burger has refused to appear before the committee, telling Speaker of Parliament Nosiviwe Mapisa-Nqakula that Scopa does not have the authority and mandate to call him and that he will account only to committees that have oversight over national security, policing or Eskom. 

Scopa's request to Burger relates to a process it began in April when it called former Eskom CEO André de Ruyter to provide evidence on private intelligence reports he commissioned into crime and corruption at Eskom power stations. De Ruyter, who gave a shock exclusive interview on what he had found in February, said he had uncovered widespread malfeasance but that the SAPS and the Hawks had failed to act on information he handed over. 

After hearing De Ruyter's version of events, Scopa then asked top cop Fannie Masemola and head of the Hawks Godfrey Lebeya to appear before it. Lebeya said he had no knowledge of De Ruyter's information, and Masemola said he had been informed of the report's existence and delegated Burger to liaise with De Ruyter. 

In June, Masemola appeared again at Scopa without Burger and said that Burger had not come to the committee himself as he feared for his safety. In September, Scopa called Burger again, and again he declined to appear.

In a letter to the Speaker, Burger denied that this was the reason for failing to appear. He said that as Eskom was a national key point, he could not provide any information about it to Scopa. He also said Scopa did not have the authority to hear evidence on matters related to national security. These should be heard by the Standing Committee on Intelligence, which is closed to the public. 

In an opinion from Parliament's senior legal advisor Frank Jenkins, Scopa was advised on Tuesday that it was within its mandate and powers to call Burger. Jenkins recommended that Burger be given one more opportunity to voluntarily appear before being summonsed.

"The power to summon is, however not an unfettered power. In light of the principle of legality, Scopa may only summon persons for the purpose of performing its constitutional and statutory obligations, including holding them to account or maintaining oversight related to the mandate of the Scopa. … It is further contended that the summonsing of any individual by a body that is not a court is extraordinary in nature and therefore to be exercised only when objectively necessary," Jenkins said.

Quoting a Supreme Court of Appeal finding from 2021, the legal opinion states that "subpoenas should accordingly only be used where there is an appreciable risk to be judged objectively that the evidence cannot be obtained by following a less invasive route".

Jenkins said that he was not persuaded by Burger's national key point argument because it was the power stations individually and not Eskom as an entity that was designated a national key point. 

On the question of whether Scopa, which has the mandate to exercise oversight of the financial affairs of all state entities, had the powers to call Burger over the intelligence reports commissioned by De Ruyter, Jenkins said he had found it did, provided that it restricted its questioning to matters related to the expenditure of public funds. It must also avoid straying into areas that might prejudice the work of the Saps or the Special Investigating Unit, which is investigating corruption at Eskom. 

"The focus, therefore should be on what information Brigadier Burger has in relation to the allegations that can assist Scopa in fulfilling its financial oversight mandate," he said. 

Committee chairperson Mkhuleko Hlengwa said the committee would write to Burger on Tuesday to ask him to appear on 25 October. He will have until 20 October to respond. In order to issue a subpoena, Scopa must get the permission of the Speaker.