PP Inquiry day 1: Opening remarks by Evidence Leaders and Public Protector legal team

Committee on Section 194 Enquiry

11 July 2022
Chairperson: Mr Q Dyantyi (ANC)
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Meeting Summary

Video (Part 1)

Video (Part 2)

Motion initiating the Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from the Independent Panel furnished to the NA

Rules of the NA governing removal

Terms of Reference adopted by Committee on 22 February 2022 which may be amended from time to time

Speaker of National Assembly v Public Protector and Others; Democratic Alliance v Public Protector and Others (CCT 257/21; CCT 259/21; CCT 257/21) [2022] ZACC 1 (4 February 2022)

Pravin Gordhan vs Public Protector & Others

Opening Remarks by Evidence Leaders (Awaited)

The Committee for the Section 194 Enquiry began its hearings into Adv Busisiwe Mkhwebane’s fitness to hold the office of Public Protector. This Committee was established by the National Assembly on 16 March 2021. The Committee heard opening remarks from the Evidence Leaders, Adv Nazreen Bawa and Adv Ncumisa Mayosi, and Adv Mkhwebane’s legal team led by Adv Dali Mpofu.

The Chairperson said in his opening remarks, emphasised the importance of ensuring that the process is fair, respectful and rational and that the process has one of two possible outcomes: either the Committee exonerates the Public Protector or it makes adverse findings against her.

The Evidence Leader, Adv Bawa, reminded those present that this is the first impeachment process of its kind. She indicated that this was not a court of law nor was it a quasi-judicial process. As such, the Committee does not have the power to rewrite previous judgments; these are not criminal proceedings, so the Committee does not have final powers, instead, these lie with the National Assembly. The process aims to be fair and neutral.

Adv Mpofu underlined that Adv Mkhwebane remained the Public Protector despite her suspension by the President. Adv Mkhwebane and her legal team attended the proceedings under protest against what he termed her unlawful suspension. Adv Mkhwebane had allegedly not been able to access her emails for a month, due to her suspension. This had prejudiced her from adequately preparing for the proceeding. He raised several objections and points in limine.

Committee members raised questions and arguments about these objections. Adv Mpofu replied to each in detail.

Meeting report

Opening remarks by Chairperson
Chairperson: I would like to greet Members and Colleagues with us today; as well as the media and those that will be listening and watching from all corners of the country. My name is Qubudile Richard Dyantyi. I am the Chairperson of this Committee. I would like to make a few opening remarks before we proceed. I think that at this point it is important to remind ourselves of the things we have said since our establishment, and our resumption in February 2022, which is that we have a constitutional process from the National Assembly. This is a process that we will do with no predetermined outcomes. I have always made the point that none of us should have briefcase outcomes. If you have determined a particular outcome for this process, we do have a medical team here that can attend to your stress levels, because it is going to be a very vigorous process and we might not come to your outcome at the end of it. Our guiding compass is fairness and rationality of this process. I want to repeat that we will only be influenced by the evidence and facts in front of us; the rigorous scrutiny of that evidence; and the facts, nothing else. It is an exercise of accountability. Today we meet not to begin the process; rather, we are marking the next phase of a roadmap we developed in February 2022. I thought it was important to mention and emphasise that point because what we are doing is an exercise to examine the fitness to hold the Office of the Public Protector, therefore we get into this with twofold possibilities. We enter into this determined to hear evidence and witnesses, which will place in front of us evidence that will assist in exonerating the Public Protector as well as evidence and facts that will indicate adverse findings. So in both ways, we are asking for objectivity throughout the process. In the last meeting, I asked for the draft directives to be prepared to govern the appearance of persons before the Committee. Thankfully this has been done. And I understand that the Public Protector legal team is to address me on some of the aspects of these directives, before they are issued. I will give an opportunity and afford the legal team of the Public Protector to address us on that at some point, in a few minutes time. But, before I proceed to the next item, I am going to ask if we have received any apologies first.

Committee Secretary, Mr Thembinkosi Ngoma: Thank you, Chairperson. As it stands we have one apology from Mrs Dlakude, who is seeing a doctor and will be joining us from tomorrow.

Chairperson: I was told earlier that Ms Lotriet has just landed and is on her way and will be joining us. I would like to record that. Those are the only apologies we have.

Mr M Mahlaule (ANC): Thank you, Chair, and greetings to you and greetings to colleagues. There has been an indication from Mr Seabi to your staff, that upon arrival at the airport, he lost his wallet, so he could not get into the plane. He will join the sitting tomorrow.

Chairperson: Thank you. I am told that he found his way onto the platform virtually. That is the beauty of this hybrid platform. With that, I want to proceed to the next item and I am going to take this opportunity to recognise and invite the Evidence Leader, Nazreeen Bawa, to make her opening remarks as well as touching on the directives. Hon Bawa, you are now recognised I mean Adv Bawa you are recognised. I am now trying to make you a MP, I hope you are not going there.

Adv Bawa: I am not sure if that is a promotion or demotion.

Chairperson: It is certainly a promotion. Go ahead Adv Bawa. Thank you.

Adv Bawa opening remarks [see document]

Chairperson: Thank you Adv Bawa for those opening remarks. At this point, Members and colleagues, I will now recognise Adv Dali Mpofu to make his opening remarks and respond. Before that, I will recognise Hon Holomisa’s hand.

Mr B Holomisa (UDM): Thank you Chairperson, colleagues and the Public Protector. I did not hear the Evidence Leader telling us what role this Committee has played in the suspension of the Public Protector. This is very important. Did we determine that she deserves to be suspended? Did we recommend this to the Speaker? Who then informed the President? Can you clarify, so that we are all on the same page.

Chairperson: Thank you, Hon Holomisa. I was going to come back to those issues but if you quickly want to clarify that, I will allow for that before I go to Adv Mpofu.

Adv Bawa: For the sake of clarity, the Evidence Leaders have no role in the litigation or the suspension process that has occurred. So, we are not in the position to answer the question in any meaningful way.

Chairperson: I will respond to the questions later but for now, I would like to park it. I will now ask for Adv Mpofu to take to the podium. Thank you.

Ms O Maotwe (EFF): Chair?

Chairperson: Yes, Hon Maotwe.

Ms Maotwe: May the Secretary allow for the EFF President to be allowed into the meeting.

Chairperson: I am told that this has been done already.

Opening remarks by Adv Dali Mpofu

Adv Mpofu: Thank you very much and good morning, Honourable Chairperson, Honourable Members, colleagues, Evidence Leaders, the Public Protector of South Africa, and members of my team. Chairperson, I noticed that my learned friend, Ms Bawa, did not address the issue that you raised, regarding the directives. But, I am sure that was an oversight on her part. I will try and address where we are on that issue and obviously if she wants to add something at the end, then she will do so. Chair, let me start by saying that we have agreed in principle on a directive, but there are still niggling issues that we need to sort out, which obviously cannot be sorted out in this panel. That will have to be done by both the teams. But I will raise some of those we think need the attention of the Committee. Others I think we will be able to resolve them between us as colleagues. Chair, my learned friend started with a matter that had to do with marine affairs, navigation, uncharted waters and other kinds of allusions. Well, my metaphor that I will start with, has to do with a different area… the arts. Judith Sephuma, one of our leading songstresses, has a song called ‘A Cry, A Smile, A Dance’. And my opening words are that if the Constitution was a person, it would adopt that song: A Cry, A Smile, A Dance. The Constitution would cry because of some of the violations – which I will talk about – that have brought us to where we are here. But, maybe it would also smile because everybody appreciates growth. And as you, Chairperson, and my learned friend, Ms Bawa, have correctly pointed out: as a country, this is a big moment, constitutionally speaking. In the sense that – as she pointed out – we are really entering uncharted waters. It is the first time in this country that a so-called impeachment process has reached the stage that we have reached today. We know that there have been several impeachment attempts for presidents and all sorts of people, and even for judges. But none of them has ever reached the stage that we have reached today. Today we are starting a completely novel era – a word I am borrowing from Ms Bawa. Just for perspective, there are democracies which are hundreds and hundreds of years old that have not had a process reaching this extent. We were lucky, quote, unquote, I think last year or the year before, to witness an impeachment process in the United States of their President. And even there, they were entering many uncharted waters, and we all watched with interest. So I agree with that. But, on the other hand, the Constitution, which should really be our guiding light, has been serially violated in the journey for us to get here. As there was a lot of zeal, by hook or crook, mostly by crook. But I will come to that Chair. The reason I was talking about the directive is because when it is approved and sent around, you will see that we have agreed on certain things. I will do this opening address and another one at an appropriate time. Let me just explain that so that there is no fear that I will be repeating myself. This address that I am doing responds to your remarks and those of my learned friend, and in a way preempts some of what Mr Ebrahim will say tomorrow. It is a situational analysis of how we got here; where we are; and whether we should even be here. The second opening address, if and when the time comes for us to call witnesses, will then focus on the charges. In other words it will address the second part of my learned friend's address. So today I am not going to get into the Vriende matter, rather, I am just going to talk about where we are. When I address you again at a later time, I will then take you through our analysis of each charge, broadly speaking. By then, we will have a more settled witness list and a roadmap, which will obviously be determined by the evidence at that stage. But it will also be determined by something I am going to deal with last. I want to make remarks on a few high level issues, Chairperson. The first is to assure you that we are here to participate in this process. Our participation is, however, under protest because of some of the issues I am going to highlight, which I have called major constitutional violations. But we are here and are going to participate nonetheless because we represent a law-abiding citizen, who is also the Public Protector. She has always made it clear that she wants an opportunity to assure this Committee, the National Assembly, and indeed the nation, that she is fit and proper and is willing and able to discharge her duties as the Public Protector. During that process, she has been accused of all sorts of things, including, the so-called Stalingrad tactic, which is a term used by people who hate the Constitution, so as to try and discourage others from exercising their legal rights – which are found in the Constitution. Now, that is a very strange accusation, Chairperson, because the irony is that every time when she has raised concerns about this process, she has been proven right. And at every turn. The DA and Ms Mazzone, who are the main sponsors of the motion, literally wanted to initiate the motion the day she took office…I think before. I will not refer to some of the activities in 2017 and 2018, but round about 2019 there was more of a rush to do this. The Public Protector wrote a very long letter to the Parliament of that time, and explained that, yes, we know that Mr Steenhuisen and others want her to be removed from office, but there is the small matter of the law, and there are no rules that govern the process of such a removal; however how overzealous it might be pursued. Eventually, sanity prevailed and that point she made was considered and correctly so, because at that stage there was a judgment of the Constitutional Court, in relation to Section 89 of the Constitution, which said exactly that. The majority judgment of Justice Jafta, in which I appeared to assert the principle, stated that the impeachment process must have its own designed rules. The Speaker of the Parliament opposed our application on the basis, she said, due to the existence of Rule 85, so there was no need for this. Other judges agreed with her – Justice Zondo, Justice Mogoeng and others. We succeeded in that application with a split of seven judges to four, which asserted the principle that you cannot have an impeachment process without rules designed for the impeachment. Once we succeeded in that application…In fact, the last time I was here, I attended as a member of the public, in a committee that attempted to design those rules. However, the implications of that judgment are going to be clear and I will probably deal with them in more detail when Mr Ebrahim is here. So I am not going to dwell into them, save for this: Justice Jafta for the majority said it is impossible, I am paraphrasing, to do an impeachment without a preliminary predetermination of the existence of the grounds; which you will find in paragraph 178 of the so-called EFF impeachment judgment. Now, the importance of that for this Committee is enormous because it accords with what you and my learned friend were saying, namely, that the task of this Committee is nothing more and nothing less than a preliminary predetermination of the existence of the grounds. It is not a removal process. This is not a removal committee. That notion is as absurd as saying that, when you go, let us say in the criminal context, to court accused of having done something and you call that an imprisonment process. It is not. It is a process to determine whether you are guilty. Once that is done, you can then call it an imprisonment or sentencing process, or whatever. Or maybe a more familiar example would be labour law: if I steal this bottle from my employer and I am charged by the employer, the process that takes place is not called a dismissal process because first it must be determined that I have stolen the item, and so on. Then we have a dismissal or non-dismissal process, like you explained, exoneration or condemnation. That is such a fundamental principle and I do not know why people do not understand such a simple issue. If they do not understand they should at least go and read the impeachment judgment. The second issue comes from another case we succeeded in the Constitutional Court, in establishing the principle that this Parliament has a solemn duty to implement, seriously, with an open mind, all the issues you have raised. Or rather, to discharge its Constitutional duties. In that case, we had gone to say that both the Parliament and the President had failed to discharge their duties. The Court agreed that the President had failed to discharge his duties in the sense that he ignored the remedial action of the Public Protector. But more importantly, it agreed that Parliament had failed to discharge its duty because despite being given that report, it had done nothing. The importance of the so-called EFF Nkandla judgment goes much wider, because that judgment, for the first time, defined the role of the Public Protector. And, it said many things on the importance of that Office, particularly in relation to protecting the Constitution. But, it also said something about the obligations of other organs of state, such as the Presidency, Parliament, vis-a-vis the Public Protector. That case probably needs to be mentioned before the impeachment case. There are three cases that are important, the Nkandla case, the EFF impeachment case and the UDM case. I will mention the UDM case in a different context. There, we successfully convinced the Constitutional Court that it was unconstitutional for certain decisions to be taken by a show of hands. It was constitutionally imperative that it should not be outruled that certain decisions cannot be taken by secret ballot. That point will be shown to be important at a later stage. We will assert, very strongly, that the decisions of this process must be taken by secret ballot, more particularly the decision to vote for the Public Protector’s impeachment, at the National Assembly stage. I will explain why in relation to what my learned friend calls the rules of natural justice. But back to the important matter of the EFF vs Speaker of the National Assembly in 2016, which really, if you like, is what brought us here. Those three cases in a way, particularly the first two, are what brought us here. The impeachment cases. Quite literally because 95% of the rules that are governing this process have probably been designed according to the result of the EFF impeachment case, except for a few changes, where, fortunately, the Constitutional Court saw through some of the changes that were sneaked in, such as the denial of legal representation. And this is why I am saying that the Constitutional Court is probably smiling. Why is it smiling? For the mere fact I am talking to you now, Chairperson and Honourable Members. Because, according to this Parliament I am not supposed to be talking. In fact, I am supposed to be a mummified representative. That is what you approved – which is that there should be legal representatives that would only be able to just sit here. And of course, once again, the Public Protector said that was wrong and took the matter to court, which is what one is meant to do, because you cannot beat people up and say you will listen to my lawyers. That one is quite strange, Chairperson, because it just tells you what we are doing here. Let me take you through what actually happened in reality. The DA drafted rules and got them passed on the 3rd of December 2019 and 72 hours later they put a motion for the removal of Adv Mkhwebane, but that is a story for another day. We went to court, and showed some of the flaws in the rules. Eventually we succeeded in two major respects in the High Court in the Western Cape. Firstly, that the assertion of, what I call for shorthand, the mummified legal representatives, was unconstitutional. The court agreed with us, hence I am speaking to you today. Secondly, the question of whether the independent panel could include a judge appointed by the Speaker. Again the court agreed with us that that was unconstitutional. But when the matter went to the Constitutional Court, the legal representative ground was upheld by the court but the separation of powers ground was dismissed. But, an interesting thing happened there, Chairperson, which was that the DA – who were the architects, for all intents and purposes – did not appeal that finding. This was very important, particularly as it had initiated the process. They were aware that this would have been a hopeless exercise. But the Parliament of the people of South Africa opposed this and said no, legal representatives should not be allowed. You, honourable Members, said no to this. Fortunately, the Constitutional Court would have none of this and it upheld my right to speak to you – as I am doing now. This is thanks to the Public Protector, who went to the highest court to assert that principle. So the point I am making is that the so-called Stalingrad tactics have actually been a series of steps taken by the Public Protector to assist Parliament in abiding by the Constitution. The rules, which were a product of the process in the EFF impeachment case, resulted in the Rule 129. Remember that once Section 89 occurred, Parliament then duly inserted Rule 129 (a-q). And then when the Public Protector pointed out the gap, it inserted (r)(a)(f). One of the things I will raise with Mr Ebrahim tomorrow, is my plea towards the Committee, for it to look into those rules and to compare them with the other impeachment clauses in the Constitution. I will not go into them but we all know that the Constitution provides for the impeachment of a president in Section 89; it provides for the impeachment of a judge, in Section 177; and it provides for the impeachment of a holder of a Chapter 9 Institution, in Section 194 thereof. This is very important because not only are the rules you are implementing now a product of the Section 89 rules, which shows that these rules are interrelated. But there is a lot of learning one can get from the judgment and other areas of the Constitutional Court. An important fact to remember is that this Committee is not a removal committee. I will touch on Section 177, as I happen to know a little bit about that, having sat on the Judicial Commission. Section 177 says the following “a judge may be removed from a office only if the Judicial Service Commission finds that judge suffers from an incapacity; is guilty of gross misconduct; and the National Assembly calls for that judge to be removed by a resolution of adopted by a supporting vote of two thirds of its Members, similar to Section 194”. So a Judge and a Public Protector may only be removed if the Judicial Service Commission and this Committee finds that this person is guilty for whatever is in your definition, and the National Assembly then calls for that Judge or Public Protector to be removed by a supporting vote of two thirds majority. What is seen as a mystery in this Committee, is so understood in those circles. This has happened in the case of Judge Hlophe. During this process, the Judicial Service Commission then goes through the Judicial Conduct Committee and then a Judicial Conduct Tribunal – which is your equivalent – and it calls witnesses. We all witnessed this process with the Hon Griffiths – who was from England – matter. That happened and then there was a finding by that committee, just like your process, and that finding, like yours, was then taken to the Judicial Service Commission. The Judicial Service Commission then agrees with the finding of the Judicial Conduct Tribunal, and at that point, there might be talk of suspension, but not before that. It cannot be done before that, as it has been done here, so illegally. It is only once you have that finding that you can utter the word removal.

Chairperson: Do you want to take the Members through Section 194(3)(a), so that they follow.

Adv Mpofu: Let me explain why I am doing this Chairperson, with your indulgence. It is because both the rules and everyone who has spoken before me has said this Committee must ensure that the inquiry is conducted in a reasonable and procedurally fair manner. That is Rule 129(a)(d)(2). I have been listening to recordings of this Committee, with many people saying that the suspension thing has nothing to do with us: nothing could be further from the truth. It is the business of the Committee to worry about the suspension, particularly as the person of interest is shackled and there are efforts to remove her legal representation, contrary to what the Constitutional Court has said. But again, that is a matter for another day. Section 194(3)(a), which is a simple section being complicated by people for ulterior purposes, says the following “The President may suspend a person at any time after the start of the proceedings of a committee of the National Assembly, for the removal of that person.” He does not have to suspend. If he does suspend, he must tell us why. This is not England where there is a King or Queen. Everybody who acts in terms of the Constitution must explain the reason or rationality, particularly as it states he may suspend a person. Let me pause there. There is another fallacy that you are suspending an officer, this is a person of human flesh and blood, with dignity. We have all agreed so far that this Committee is not intended to remove a person, at least I believe that there is consensus on that. I watched you last night on ENCA and you had to make sure to say that you are not starting the proceedings, but we are.

Chairperson: Which started in February.

Adv Mpofu: Let me tell you a joke about that. When we were in court, there were four parties against us, arguing whether the proceedings had started, as if it was a normal court. Had it been a trial they would have lost the case, as all four of them had different versions. The DA said the proceedings started when the Independent Panel Report was passed on 16 March 2022. The Chairperson said that it had started on 21 July 2022, whereas yesterday he said it had started on 22 February 2022.

Chairperson: Will you clarify that?

Adv Mpofu: Whereas the President said he had only heard from the Speaker and was unaware of when it happened, only that he assumed that it had started on 21 July. The last throw of the dice was the indication that the processes started on 22 April 2022, when the letter was sent to the Public Protector. The point, Chair, is very simple. The founders of the Constitution intended that all the words placed in it would have an impact. You must then understand in the context of what my learned friend said, that there is a constitutional duty to protect the Public Protector. There is a constitutionally ordained duty for all of us, but more importantly, for organs of the state to ensure the dignity, the effectiveness of the Public Protector and to protect her. The constitutional drafters wanted to protect the Public Protector. Anybody who knows about the so-called certification case in the Constitutional Court, will know that the original draft of the Constitution said that the Public Protector could be removed by a simple majority, whereas the Constitutional Court said no. For the removal of all other Chapter 9 institutions you can have a simple majority, but for the Public Protector, you need to have a two thirds majority, so that she can be protected from the powerful forces she has to investigate, such as the biggest bank in the country or the President himself. She needs to be protected. So you must look at Section 194 as a protective mechanism, Chairperson. Just as we have to protect judges, hence we have two thirds majority, otherwise judges would be called for impeachment whenever an unfavourable judgment is given. Thus, the drafters had to ensure that the threshold is high. Now if you understand that, this will be used as a starting point. Why did the constitutional drafters in Section 194(3)(a) say, ‘at any time after the start of the proceedings of a committee of a National Assembly’? Why did they not stop there? Why did they say a committee for the removal of that person? Is this that committee? Are we here for the removal of someone?

Chairperson: Section 193 is about the appointments of the heads of these institutions, whereas Section 194, has a heading stating ‘Removal of office’, so this committee is convened around that. This section also details the different tasks of the Executive, the Committee, the National Assembly and for the President, if the finding is an adverse one for the Public Protector. This Committee is established in terms of section 194, which is about removal.

Adv Mpofu: And so was the Independent Panel, for example. But it would be foolhardy to say that the Independent Panel was a removal mechanism. Of course it was under Section 194. I welcome the engagement, Chairperson.

Chairperson: There was a point made by the Evidence Leader – which is drawn directly from Section 194 – which was that the role of this Committee ends with findings, reasons and recommendations for the National Assembly. The point made there was that while we are not a decision making body, we do work for the National Assembly. So we will go to the National Assembly based on the work done and if we find that this person is exonerated or, we could go there and say we are tabling findings and recommendations that this person must be removed from office. It is the National Assembly that decides at that point. And you would know that when the National Assembly decides in the adverse, it is not optional for the President not to remove the person.

Adv Mpofu: There is absolute clarity on that. But with all that you have said, you have not answered my question. Is this or is this not a removal committee? If it is, then it has started.

Chairperson: There is an answer in Rule 129(a)-(d), section 1, if I may read. It says that “the Committee must, when the Assembly has approved the recommendations of the independent panel, in terms of Rule 129(z), proceed to conduct an inquiry and establish the veracity of the charges and report to the National Assembly, thereon”.

Adv Mpofu: Thank you very much Chair, that is all this Committee is about. It is Parliament that has drafted these rules.

Chairperson: I am trying to understand where you have difficulty.

Adv Mpofu: I will assist you, do not worry. The Committee, as you and Ms Bawa said in your introductions, of which I agree, and as the rules say, the Committee will conduct an enquiry and establish the veracity of the charges and report to the Assembly thereon. This is what Judge Jafta said in the impeachment case, that the sifting mechanism must be used to determine, in the case of a president, whether there was serious misconduct or not. What is the point? You cannot have an impeachment process. Impeachment is a fancy word for removal. If you go to Section 89, the heading says ‘removal’. Section 177, the same. Section 194, the same. The question is who must play that role in that process and not what the process is called. If you understand that impeachment is a synonym of removal, then you must read paragraph 179 of EFF vs Speaker National Assembly. This is what the Judge says for the majority: “for the impeachment or removal process to commence, the Assembly must have determined that one of the listed grounds exist.” Thus, the impeachment process will commence if we find that one of the grounds exist. In paragraph 178, the Judge said: “since the determination of these matters fall within the exclusive jurisdiction of the Assembly; it, and it alone, is entitled to determine them”. This means that there must be an institutional determination of what a serious violation of the Constitution or the law is. The same must apply to serious misconduct or an inability to perform in the office. It cannot be simpler than that, Chairperson. There must be an institutional predetermination that was ordained by the Constitutional Court. The impeachment process cannot commence until that has been done. This notion that the commencement can precede the determination is absurd.

Chairperson: I am listening.

Adv Mpofu: I do not doubt that, Chair. But let me sound a warning that Justice Jafta said in the same judgment; which was that the so-called removal cannot be done without following what he said. This would be incorrect, as it would not be a removal in line with the Constitution. The law is very clear that fairness to the Public Protector is important. She is sitting here. The Constitutional Court said no less: she must be given full legal representation. But then she gets suspended unlawfully. And she has not been able to prepare for this process. Her emails were blocked until last Friday, when we protested. So to say that the suspension has nothing to do with this Committee, is, with the greatest respect, a fallacy. However, let us put that aside, as all of these mentioned arguments will be heard in the Western Cape High Court on 25 July and 26 July. The court will debate whether the proceedings have started – if it finds that Section 194(3)(a) has been triggered, in other words, the suspension process. But, if not, then the unfairness is patent. So I am only addressing to you, only insofar as it affects your obligation to have a process which is fair and reasonable – which is an obligation you imposed on yourselves in Rule 129, which states that “the Committee must ensure that the inquiry is conducted in a reasonable and fair manner, within a reasonable time”. As you know and the Honourable Members know, Chair, the rules of national justice are twofold, and emerge from Roman times, one is called ‘audi alteram partem’, which means that the other side must be heard. The other one is called ‘nemo iudex in causa sua’, which means that nobody can be a judge in his own cause. It is called the rule against bias. So when you say in that section that you must ensure fairness, it means you must ensure both of those rules. So this issue of suspension falls into your second obligation, and I will explain how. Not only is this suspension premature but it also offends against the rule against bias, in the sense that the person who did the suspension, is the person being investigated by the Public Protector and our courts have said that this is bias, potential bias or a breach of section 96(2)(b) of the Constitution. That is why we had the Zondo Commission. I was involved in that case and I argued vehemently that the President cannot appoint or select the judge that is going to chair the Commission, and we did that successfully. Why? My learned friend Semenya questioned how you can say that the President cannot appoint a judge, because a judge is presumed to be impartial. Our courts said no. We know that a judge is a judge, but the mere appearance of this President, who is being investigated by the Public Protector, is too ghastly to contemplate. That was a principle far removed, but if you introduce Phala Phala into that mix you are now talking about…

Chairperson: Can I make the point that this body is not a suspending body in terms of section 194. I appreciate and respect the fact these are the types of points you will be making in the court on 25 and 26 July, because that is where they will be relevant, and not in this body, as we have no role in the suspension of any of the heads of these institutions. It is clearly stipulated whose role that is.

Adv Mpofu: Okay, thank you Chairperson. I have heard that being said in this Committee repeatedly, and it is wrong. It is wrong. For the reasons I have explained, you have a duty to ensure fairness, and you have agreed. Secondly, this committee, on your version, is mentioned in the suspending clause, so if this committee was not here, there would be no suspension.

Chairperson: We triggered the suspension once our process started.

Adv Mpofu: Absolutely, in other words, no committee, no suspension. The only way under the sun you can ever suspend the Public Protector, is if this committee has started. So how can the two matters not have anything to do together? The notion that the committee, whose activities triggered the suspension, has nothing to with the suspension, is absurd. Anyway, the point I would like to make, Chair, is that I do not want to go into the legalities. I want you to at least accept that you have an obligation to ensure fairness, and fairness includes both the rule against bias and conflicts of interest, as well the rule for a hearing. Those two are inextricable. If there is a conflict of interest, it is your business. If there is a lack of hearing, it is your business. If there is unfairness of any kind, it is your business; self-decreed by you in the rules. So this notion that this committee has got nothing to do with fairness, as it relates to the Public Protector, must be banished from people’s thoughts. Let us then go to why the Public Protector should be protected, Chairperson. This is what Mogoeng CJ said at paragraph 51 “among those to be investigated by the Public Protector, for alleged ethical breaches, are the President and members of the Executive at a national and provincial level”. So take that as a background. The court said in biblical terms that “the Public Protector is the embodiment of a biblical David, that the public is, who fights the most powerful and very well resourced Goliath – that impropriety and corruption by government officials are”. He continues “the Public Protector is one of the true crusaders and champions of anti-corruption and clean governance”. It then says that “in the execution of her investigative, reporting or remedial powers, she is not to be inhibited, undermined or sabotaged, by those she is investigating. Her investigative powers are not supposed to bow down to anybody, not even at the door of the highest chambers of raw state power." The predicament is that mere allegations, and investigation of improper or corruption conduct against all, especially powerful public office bearers, are genuinely bound to attract a very unfriendly response”. She is a witness to that. It then says that ”an unfavourable finding of unethical or corrupt conduct, coupled with the remedial action, will probably be strongly resisted in an attempt to repair or soften the inescapable reputational damage. It is unlikely that unpleasant findings and a biting remedial action, will be readily welcomed by those investigated”. The court was saying as a precursor, that she must be protected by those powerful forces – including the President – by all of us because she must not be easily sabotaged. So the duty to protect, Chair, is really what I am asserting. You will find in paragraph 66 of the same judgment, which said “and the fact that her investigative and remedial powers target even those in the throne room of Executive raw power, it is just as revealing that the Constitution requires the Public Protector to be effective; and identifies the need for her to be assisted and protected to create a climate conducive to independence, impartiality, dignity and effectiveness”. Let me pause there, Chairperson. This is another reason your assertion that this has nothing to do with you, is wrong. Why? You are, for all intents and purposes, the Parliament. You, under sections 181 and 182 of the Constitution, have a duty and obligation. It says in 181(3) of the Constitution that “other organs of the state, through legislative and other measures must assist and protect these institutions to ensure their independence, impartiality, dignity and effectiveness of the institutions”. So you have a constitutional obligation to protect the Public Protector. That is another reason it is your business. The court then says ”the obligation to assist and protect the Public Protector, so as to ensure her dignity and effectiveness, is relevant to the enforcement of her remedial action’’. The Public Protector would arguably have no dignity and be ineffective if her directives could be ignored willy nilly. The power to take remedial action would be so inconsequential. That was the part around the controversy surrounding the binding effect of the Public Protector’s remedial action. That binding effect was traced directly, Honourable Chair, from the duty that is among all of us to protect the Public Protector. The day this Parliament washes its hands, that will be the day the Constitution will be thrown into the dustbin. So that is how we got here. We got here, in summary, Chair, through a process of our Constitutional Court giving teeth to the Constitution. If we were to cover everything in this Constitution, that would amount to a thousand pages. A Constitution is just a framework, a skeleton. What breathes life into it is this kind of interaction. And the Constitutional Court’s role is to do exactly that. My learned friend said something about the binding effect of judgments, which I do not agree with. The binding effects of judgments, or the rule called stare decisis, applies to the binding effects of judgments to courts, which is to ensure that there is certainty so that courts do not contradict themselves. But that binding effect must be distinguished from the effects of Section 165 of the Constitution, which says that if there is a court judgment, we must all respect it. Actually, 165(3) is the mirror image of what I just read. Section 165(4) says that ‘’organs of state, through legislation and other measures, must assist and protect the courts, to ensure their independence, dignity, accessibility and effectiveness of the courts”. You must think I am reading the same thing but that is because those provisions are exactly the same. So the duty to protect the courts is exactly the duty we have to protect the Public Protector. You are not bound by court judgments in a process like this. I am not saying that the court judgments are irrelevant. Did they happen, yes? Are they there, yes? But if they are binding upon you, then what are we doing here? Should we rather go home? No, as you correctly pointed out, you are here to do your own assessment of those issues. I beg all of the Honourable Members that the point is understood.

Chairperson: And the members of this Committee are clear on that.

Adv Mpofu: Well, not if they listened to the Evidence Leaders because my learned friend said that you are bound by those court judgments. No, no. Even the Independent Panel, with which we agree so much, said the following at [103.1] on page 42 of their report “We are alive to the fact that the courts dealt with the conduct of the Public Protector in a different context. Mostly whether the Public Protector’s reports are reviewable. The question before us is different…”. The question before you is also different, Chairperson. They further say “ it is whether there is prima facie evidence that the Public Protector has committed misconduct or is incompetent…”. It is much more than that for you. It is whether she is guilty of misconduct but the principle is the same, and the question is different. They further say “ this does not mean that the factual findings of the court cannot be relied on…” – I have just said that – “ to the extent relevant, as prima facie evidence of misconduct or incompetence.

For example, a patently incorrect interpretation of a statue may constitute an error of law” – in other words, a justifiable error of law – “but it may also constitute prima facie evidence of incompetence, considered. In these circumstances, the finding of the courts in respect to the Public Protector’s conduct have been taken into account”. That is all. It is a crucial distinction made. You must determine, with an open mind, all of the things said by my learned friend Ms Bawa. And whether having listened to the witnesses that will be called upon by you or the Public Protector, at that stage, to decide whether she is guilty or not guilty of misconduct as defined by you in Parliament. That is all, you are not bound to anything. While we are on that, you said in your opening remarks Chair, that nobody must come here with a predetermined outcome; fairness and rationality, a rigorous assessment of the facts, and so on. Those were your words. Well, a predetermined outcome, is another aspect of the 'nemo iudex in causa sua' principle because what would be the point of going to a court if a judge had a predetermined outcome on the matter. The same refers to this process, which you warned against being a charade. But, people have made up their minds. And that is why I am saying the UDM case, at the appropriate time, becomes important. Let us not kid each other, if what is going to happen here is that people are just going to do that which they were going to do anyway, then what are we here for? We might as well call a five-year-old child to do the arithmetic of how many Members in each party accept the impeachment. But if we are to sit here for weeks and weeks, and listen to evidence, it must be done with an open mind. One of the ways to ensure that happens is through a secret ballot.

Chairperson: The secret ballot is a National Assembly issue. What I have raised in all of the Committee meetings and my opening remarks, is about bringing all of these issues into one. You might be preaching to the converted. Because when you started you said that you are here under protest and that you are going to ventilate these issues, and it is my understanding that you are ventilating that protest. I think that category, we have heard it.

Adv Mpofu: Well, Chair, Let me just say this; I accept the fact that the issue of the secret ballot may be more relevant for the National Assembly but you are also Members of the National Assembly.

Chairperson: And it might not be relevant depending on the outcome that comes out of this Committee. So we do not want to look there. It is not our space.

Adv Mpofu: No, you want to look there. Let me tell you why. You are going to have to do a report.

Chairperson: And the report might exonerate her, thus there is no secret ballot.

Adv Mpofu: Yes. I said that an hour ago, did I not?

Chairperson: Yes, you did.

Adv Mpofu: I did, thank you. The reason I said the UDM case is not as important as the other two, is because it may become relevant, should the… if you play the record, you will realise I said exactly what you had just said. If and when you do your report, bear in mind that fairness will require that we do not do a futile exercise of counting and knowing the outcome. Because quite frankly, if that is the case, even here, I am saying this with all seriousness, Chairperson, we might as well pass a paper where one should indicate who wants the Public Protector removed or not. I am making the point you made, but maybe you prefer it when it is put in these Latin terms. The point you are making is what lawyers would call 'nemo iudex in causa sua' – you cannot prejudge a case. I was just underscoring that point you made and also relating it to the point of fairness.

Chairperson: You did indicate that you want to speak to the directives.

Adv Mpofu: Yes, I will do that at the end. Just to round off on the point of bias. Bias is an enemy of fairness and that should go without saying. But here I have already indicated that it was the Speaker and Parliament that said the Public Protector should not have legal representation. I am sorry, I am overstating – should not have legal representation with a voice. The Chairperson of this Committee has made certain remarks, which we will refer to at the appropriate stage. Some of the Members of the National Assembly have made remarks. One of them said, when the Public Protector was suspended – this is a leader of a party – that the party was cracking champagne. Those are the impartial people we are supposed to be subjected to. They have written in court documents under oath that she is guilty of misconduct, and my learned friend said they must have open minds. Well, good luck with that. Other Members, even in the previous Parliament…actually, one of them said that she must do the right thing and just resign. This Committee, you Chair, and the Speaker have now entered the fray to say let us not be represented in the litigation by the attorneys of her choice. You have brought something called a rule 7 application, to ensure that the Public Protector is left helpless and defenceless – so much for neutrality. And all sorts of other people have joined in, egged on by you, Chairperson, and the Speaker. And by the way, that is also not a coincidence. It is with the greatest respect, fair Chairperson, and I mean as a Chair of the Committee, to say that the Committee has nothing to do with the suspension. Why was there a suspension? Is it because the Speaker of this Parliament wrote a letter on the 10th of March to the President, to say that this Committee has started? There is nothing in our Constitution that says she must do that. Nothing in these rules that says she must do that. She did it on your behalf.

Dr C Mulder (FF+): And nothing prohibits her to do that in the Constitution.

Adv Mpofu: Well, if you believe that, Hon Mulder, please I do not want your assistance later.

Dr Mulder: I think you are going to need it.

Adv Mpofu: I do not. Let me tell you, it does not work like that. Constitutional democracy, this thing called the rule of law, is exactly the opposite of what you are saying. There is a case which says – I will find it for you in due course – that the rule of law does not say you can do all that is not prohibited. The rule of law says public functionaries, people who derive their power from the Constitution, can only do that which is authorised by the Constitution, not the opposite.

Chairperson: Adv Mpofu, pause there. So, at the point when the National Assembly, let us say for argument's sake, adopts a report, with findings and the Committee recommends her removal. The Constitution does not say that the Speaker must write to the President, because the President cannot sniff it in the air what the National Assembly has decided. Would you want to stand on this point that the Speaker should not have written this letter, to indicate to this House and the National Assembly, through its subcommittee, that the proceedings have started?

Adv Mpofu: You see Chairperson, my Honourable Chairperson, there is something called the Constitution. And then there is something called legislation and there is something called the rules.

Chairperson: And regulations.

Adv Mpofu: Right. That is why we had the first case on legal representation because we were saying that the rules are unconstitutional, to the extent that they do not allow legal representation. So as a Parliament, you must do what you did in Rule 129(t), which says that “when the motion is in order, the Speaker must (1) immediately refer the motion and any supporting documents provided by the Member to an independent panel appointed by the Speaker, for a preliminary assessment of the matter”. That is not something the Speaker wakes up and does. It is here. You decreed it. “And (b) inform the Assembly and the President of such referral without delay”. So, here it is – the duty to inform the President of the motion without delay, which answers your question. Where, in this document does it say that the Speaker must inform the President that the proceedings have started? There is no other reason to prompt him to suspend. So let us not kid ourselves. The only reason the Speaker of Parliament wrote to the President on the 10th of March, without any lawful authority and without any authority from the Constitution or the rules, was to say to the President, wink, wink, suspend her.

Chairperson: But you agree with me, that you have already ventilated that point in court.

Adv Mpofu: No, it does not matter if I have ventilated it anywhere. I am ventilating it here, for the purposes of this Committee.

Chairperson: And there is an outcome in that regard.

Adv Mpofu: No, there is no outcome Sir. The outcome will come on the 27th of July.

Chairperson: And you will have that opportunity because the body you are addressing now on that particular issue…which is you carrying the matter as part of Part B, which is the merits of the case you are tabling.

Adv Mpofu: Yes Chair you are 100% correct. The only relevance it is to you, is whether the Committee feels that despite all of those issues, on your own volition, there is nothing stopping this Committee from itself. In the interest of its own rules of fairness, you have to make your own decision as to whether you preempt the outcome of the court case you are referring to or not. We are here. We are ready to rock and roll.

Chairperson: Okay.

Adv Mpofu: We are very ready. We just want to tell you where you are leading this country and this Parliament, which is, to a bottomless pit and cesspool of illegality. We have to discharge our duty. We cannot stop. The Committee will make its own decision. Good luck. But let me then make the last point, Chair, which ties up with the issue of the directives. As I said, there are issues on the directives that as colleagues, me and Ms Bawa, have worked on together for decades, so I am sure we will be able to iron those issues out as colleagues. There is one particular which I want to place before this Committee. By agreement, and she will confirm. Because we raised it and she correctly said it is not within our power, it is for the Committee. Another serious issue for you to consider, and it is this: what are we doing here? I will call them the narrow or broad approach and you will have to make up your minds on which approach you take, and the consequences will follow later. But there are two approaches that can be taken, Chair, and it goes back to the uncharted waters. Unfortunately, history has placed you as the people who have to do the first impeachment. One of the issues you have to decide is whether you are going to do the inquiry on the basis of the original motion by Ms Mazzone, which I refer to as the broad/wide approach. In other words, you take Ms Mazzone’s motion and inquire into all the issues that are listed there. Our view is this: This Committee cannot, should not, and must not take that wide approach. This Committee is enjoined by the law to take the approach of investigating the issues of the Independent Panel. Let us call that the narrow approach. This is crucial, Chair, which is why I left it for the end because we cannot move an inch from this point, until that question has been answered. I will tell you why because it will determine what witnesses are called, what witnesses we call, how long this whole process will take, what is relevant and what is not relevant.

If any person who harbours under the idea that we must deal with her, which is the Mazzone notion, is wrong because the independent panel is a mechanism devised by this Parliament. One of your advocates, I think Adv Breytenbach, who represents Parliament, called it, in the previous cases, a double sifting mechanism. The first sifting mechanism is the independent panel, the second is the Committee. But what would be the point of having that double sifting mechanism if it is just a futile exercise. The whole point of going through that exercise is to say is there, or is there not a prima facie in respect of these charges. To make it simple, Chair, let us assume there was one charge, and that was that the Public Protector robbed Standard Bank and therefore she must be impeached. The Speaker then takes it to the independent panel, which concludes its work and comes back and says ‘if you excuse me, this is nonsense. The Public Protector was actually overseas when the bank was robbed’. That would have been the end of the matter, and we would not have needed to meet here in this Committee. So transpose that mentally to where we are now, where there are, let us say, 20 allegations, and the independent panel then says ‘these eight charges, there is nothing; but these twelve there is a prima facie case’. Prima facie case simply means you have a case to answer. So the independent panel says that on these eight there is no case to answer, but the twelve there is a case to answer. Why on earth would this Committee say ‘no, we want to probe the eight charges where this is no case to answer’? I am sure the Honourable Members have read the Independent Panel Report, the most prominent example of what I am explaining now is the case of the Baloyi matter. You will find that in the report, I think that is number nine.

Chairperson: Is that the former CEO?

Adv Mpofu: Chairperson? It starts at paragraph 186 of the report, but I will just go straight to 197. The Independent Panel says that after analysing the whole thing, including, by the way, the fact that the case is still before the Constitutional Court.

Chairperson: Which paragraph did you say it is?

Adv Mpofu: 197. The section is 186 to 198, Chairperson, but I am reading from 197. They say that “in the circumstances we find that the Baloyi matter has not raised prima facie evidence of incompetence of conduct’’. Full stop. In light of that, why would we sit here for weeks and weeks to prove the Baloyi matter? In my respectful submission, that would be a mighty waste of time. So when you deliberate on this question in your own time, please liberate us as to what exactly we are here for. Because we need to know, as you may appreciate – in the interest of fairness for the preparation of witnesses – whether we are meeting for case A or case B.

Chairperson: And Advocate, in your practice you would know that evidence overlaps, so how would you deal with that when that happens?

Adv Mpofu: Yes that is true, evidence overlaps but it must never be allowed to overlap into an irrelevant matter. That is the constraint of the overlap.

Chairperson: And you would not do it for completeness sake, as well?

Adv Mpofu: You might. Let me give you an example Chair – in part agreement with you – let’s say there were two charges, one is the bank robbery, another is swearing at a Member who wanted to complain to the Public Protector. Then for some reason, Chair, I say to you ‘but Chairperson, the bank robbery has been cleared by the independent panel’, but the Independent Panel said this thing of assaulting a Member, there is prima facie evidence. Then you are a 100% right Chair. The point I am making is completely different. That is why I took you through the example of one charge, so that conceptually we are on the same page. I am saying that why would you and the other Honourable Members with respect, Chair, assume that the only issue here was the Baloyi matter, whereas the Independent Panel established by this Parliament says ‘’in the circumstances we find that the Baloyi matter does not raise prima facie evidence of incompetence and misconduct.’’ Is it not the end of the matter? And I am asking this rhetorically. It is. It is a question that does not need an answer. Again Chair, I appreciate the engagement because it assists me in explaining.

Chairperson: You are also aware that this Committee does not rubber stamp the Panel’s report?

Adv Mpofu: I am fully aware that it does not rubber stamp, but the Panel is not a football match signifying nothing. But if the Panel was not a sifting mechanism as your submissions were in court then it negates what you were saying, Chairperson. For example, by parity of reasoning, it would mean that this Committee can say that the Public Protector is not guilty of anything, but the National Assembly must convene for a two thirds vote. For what? This is a simple choice of whether we respect the work of the Panel and then deal with the issues. By the way, Chairperson, they have taken trouble to assist this Committee by putting something called Annexure A, at page 117 of the document. It says “finding in relation to the charges, as related to the charges, the preliminary assessment of the panel, as per National [Assembly] Rule 129 (x)(1)(b) and (c)(v), that there is prima facie evidence in respect of the following charges” and then they list them. At page 263, “As related to the charges of the preliminary assessment of the panel as per national rule, as per respect of the following charges”. And then they list them. What I am saying is that you need to tell us, as a Committee, which is which because otherwise we do not know what we are doing here and how far it goes. And those are matters that the Committee might want to take legal action on or by vote, which is fine. But whatever decision you make will have clear consequences as to what happens next. The last one, Chair, in terms of the rule against self-incrimination, the Panel said… remember this relates to the CIEX matter. You may or not be aware, Chairperson and Honourable Members, that matter is the subject of a criminal case. We raised this with the Panel, and the Panel’s answer was that you may not be compelled to answer questions in civil proceedings if there is a pending criminal matter. Particularly if you are not compelled to answer – that is just the law and it was correct – it then begs the question whether the Public Protector can come here and say she does not want to answer. I do not think so…because she accounts to Parliament, that is what the Constitution says. That is another matter in which you would want to get some advice, as to whether she will be entitled to refuse to deal with certain issues on the basis that they are subjects of pending criminal proceedings. That can even be resolved in due course. One of these issues, I think, belongs to the issues which we will deal with our learned friends – the issue of the bundles which we cannot access and so on. But the other issues that are raised by my learned junior, Ms Matlaphe. She [the Public Protector] wants to emphasise that her emails were only opened on Thursday, which was the 7th. That is almost a month after the suspension, which was the 9th of June. So, for a month she could not access her emails and could not prepare for this. Quite apart from that, other side issues were provoked by Parliament, about lawyers and all that. So she has not been able to do that, and that is a direct consequence of the suspension, which you say has nothing to do with you, which it does. Her PA was removed and all sorts of things, and she is not quibbling about that, she is a very strong and formidable woman. But for anybody to think that in a constitutional democracy you are allowed as Parliament, as a Speaker, as a Chairperson of this Committee, as the President, nogaal, to say that we want to litigate against this person about her alleged unfair suspension…one woman against all of these powerful people. But you know what, let her be shackled. Put handcuffs on her back and shackles on her feet, and let us have a fair boxing match. That is repulsive because you cannot do that, why does the Speaker and the Chairperson care, or want to interfere in the internal affairs of the Public Protector? Why? What does it have to do with you? If that is the case, then let us be fair and say let the Public Protector not be represented and that the Speaker, the Chairperson and the President do not have legal representation. But, you are not allowed, in fairness, to shackle the individual; the one solitary woman who is the biblical David against all of you Goliaths. And now you say that this David must be handcuffed. Is that fair? No, it is not. No, I am sorry, that conduct cannot be accepted. We want to put it out there that she has been completely sabotaged, to use the word used by CJ Mogoeng. She has been sabotaged for the preparation of this, and for preparation of the court proceedings on the 25th and 26th because, you Chairperson, said that she must not have lawyers there. That means that you wanted to double shackle her for this process and the court process. The question is why? In whose interest is it that the Public Protector must not challenge her unfair suspension? Is it in the interest of these Honourable Members, on whose behalf you speak, Chair? No, I dare say. Is it generally in the interest of South Africans? No. Is it in the interest of fairness and justice? We must ask the question, is it that she must not investigate the things she is investigating now? And on top of it, she must not even be allowed to challenge her suspension. In whose interest? It is not, I can assure you, in the interest of the people of this country or in the interest of democracy or in the interests of this document [referring to the Constitution]. Those are our submissions Chair. Thank you for the indulgence and the engagement. There is another – the definition of a Member. We put a proposal that a Member means any duly appointed and qualified person who serves in the Section 194 Committee. And that was merely to differentiate. I do not know, I have never been in Parliament.

Chairperson: You have been.

Adv Mpofu: Well, not formally. In some of the committees where any member of the National Assembly can come.

Chairperson: So you are raising that trying to address that. You do know that our rules because the National Assembly is supposed to…

Adv Mpofu: I know. I know, they apply here. Well, it is something we have to resolve. We do not know. Unlike the ones where we say we are proposing this, here we are under your guidance. So if anyone can just rock up and just ask questions, then so be it. Then we will have to challenge those rules, not you. Do we need to refer to that, the thing of the five days of her announcement, Naz?

Adv Bawa: So the issue was that she has to answer questions that are posed to her, and the proposal was that she would have to answer it when she testifies. And I think you wanted to say that if she opts not to testify, that she then has to answer those questions five days after.

Adv Mpofu: I know what I said. I am asking if this is an issue we have to raise with the Committee or we can resolve.

Adv Bawa: It is not an issue I can deal with.

Adv Mpofu: Okay, then let me raise it, Chair. Again this for me, is a non-issue. One of the rules, 5.7, the draft rules which you have seen, maybe the other Members have not seen.

Chairperson: Just refer to them as directives, separate from the rules.

Adv Mpofu: Yes, yes. One of the directives, 5.7, says that the Public Protector may be asked a question at any point, and that she must, if she so chooses, answer that question within five days. Unless she indicates that she is not going to give evidence – which is a fair rule I think. All we were adding there was to say that it must be five days of the questioning or five days of her making the decision, whether she was going to testify or not. And that is just to do away with an absurdity, where for example, Hon Mulder asks a question, then we say ‘no, we are taking the five day rule’. And then only in September, she decides that she is not going to testify. Then we say, ‘oh but my five days expired in July’. That would just be an absurdity. That would be a gap in the rules. Then there is the issue of dignity and people being treated with dignity, which is a good thing. But it sounds like it is only the Chairperson’s decision as to what is dignified or not.

Chairperson: You do not like that?

Adv Mpofu: No. So, we think that there should be some mechanism that can be tested. In other words, it should just not be the subjective view of one person, however powerful that person might be.

Chairperson: Is that not about the chairperson making a rule, which happens anywhere as a presiding officer. So you do not want the chairperson to make a ruling?

Adv Mpofu: No, do not ridicule the point I am making, please.

Chairperson: Okay.

Adv Mpofu: I have been chairperson of many things, I am sure as you know. So, when you are a chairperson, you can make a ruling but the question is whether that ruling must be godlike and unchallengeable. Are we together? So that is the point I am making. What we had proposed, which my learned friends raised serious concerns about, a legitimate one, by the way. We said that ‘’a ruling of the chairperson, in this regard, with reasons, shall be final unless it is successfully challenged in another forum”. We have abandoned that last part of the wording, because the Evidence Leaders pointed out, correctly, if it is an internal forum in Parliament it might be easy but if it is like a court, then we might not finish here because every time you make a ruling, Honourable Chair, we would then have to go up to the Constitutional Court. That is not what we had in mind. I just want to put it out there. We are again leaving it in your hands. We want a mechanism, whatever it is, that might be deadlock-breaking if we do not agree with your rule. This one might be important. What is the body of evidence? We were suggesting that only if evidence has been directly referred to during the hearing, should it form the body of evidence. By that, again, without being legalistic, means what will be the record of the proceedings. Will it be the 11 000 pages, I think, by now, of documents or will it be the documents that have been referred to? In fact, in court you have a bundle, the plaintiff has a bundle, the defendant has a bundle or sometimes we have something called the joint-bundle. But the documents that will make it into the record will be those where witnesses have testified but the rest, if you have put all sorts of letters, they just fall away. Then there is a proposal from the other side, which we have not yet considered fully. So while you are considering these other issues, we will also consider this. They put a clause, 6.2. The principle is trite, but it is whether you need this cumbersome thing of putting things three days before and so on. I think that is something maybe we can find a formulation that makes us all happy. But we are raising it here. Thank you Chair, unless if I have left anything out, Ms Bawa SC will correct me, but those are the issues we identified. We would like the Committee to consider the technical issues. But from my part, I would like you to consider the substantive legal issues, particularly the ambit and scope of the gathering. Thank you very much.

Chairperson: Thank you very much Adv Mpofu, for tabling all of those issues. I see a hand, but maybe before I recognise you, I would like to apologise, as I had extended this session without a break. I did so, as I did not want to interrupt the presentation. It is not that I have disregarded your health. I wanted to propose that perhaps we break for lunch now and when we come back, we can raise all outstanding issues – given the fact that we have not had a break. I will recognise your hands, Hon Holomisa, Mulder, Hon Mileham, Hon Hendricks and Hon Nqola, in that order. The time now is 13:06. We should be back at 14:00, and we will resume where Adv Mpofu left off. Is that okay with everybody? And those attending on the virtual platform can wait for us until we come back, as we do not have a virtual lunch. The session is adjourned until 14:00. Thank you colleagues and Members.

[Meeting adjourned until 14:00]

Chairperson: Welcome back colleagues from lunch after a long stretch. Hopefully, the next session won't be a long stretch. But I am in your hands. I have noted hands, as we were breaking and I want to start with the hands of the Members I have noted for their own reflections. Having sat here, quietly and listening, I'll start with you, Hon Mulder.

Dr Mulder: Yes, thank you, Chairperson, Good afternoon colleagues, Honourable Public Protector, Adv Mkhwebane, and your team. This is a different process and we all understand that. And as is the case with judges, they are not summarily just removed. It is a process that is the same for other Chapter Nine institutions. So we are all going through this process now. I've listened to what Adv Mpofu has said on behalf of the Public Protector. And my concern is certain issues that have been dealt with, which from my point of view, the Evidence Leaders cannot deal with. Things not on the terrain. Things with regard to fairness and things with regard to the "unbiasedness" or the impartiality of the Committee, of the Members and the processes of Parliament. And because of that, Chairperson, I think some of us will have to interact with the Public Protector's team.

I have five short points, I won't be long. I want to start off with the first point. One of the points that was made by Adv Mpofu both was a question with regard to the fact that the Public Protector needs to be protected. And you refer to a case and Chief Justice Mogoeng’s pronouncements on that. Am I correct if I say that the case you're referring to was the Nklandla one, which dealt with the previous Public Protector? If I'm not mistaken. You did not indicate which case you were referring to. If I remember correctly, I think it comes from that case on the question of remedial action that should be dealt with, etc, etc. But on the same point, if you look at Section 181, and you refer specifically to subsection (3) which says that "these institutions" should be protected. But it deals not with the Public Protector but with the institution of the Public Protector. That whole section deals with the establishment and governing principles and it says “Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure their independence, impartiality, dignity and effectiveness.” Now, I would like to argue, and I'm not saying nobody says it is going to happen, but it could be that the removal of a specific individual could also be to protect the institution. This is because I heard you arguing to say but the Public Protector must be protected. The point I'm making is, first of all, that section deals with institutions, and I can absolutely understand, I don't think anybody disagrees, that the institution should be protected. But as I say, protecting the institution may imply the removal of a specific individual. The second point I would like to make was you refer to Section 194(3)(a) on a number of occasions. You made the point with regard to the fact that the Public Protector was suspended by the President. And you wanted to make the point throughout that this Committee cannot stand away from that, that it doesn't have a direct impact on what we are doing. I think the Chairperson pointed out that that is not our prerogative to suspend. And the point you wanted to make was that the Committee is mentioned, etc. First of all, that provision in Section 194 (3)(a) is a prerogative of the President, not the Committee, not Parliament. Nobody else may suspend under certain circumstances, that's quite clear in that provision. Secondly, you made the point that someone should not be the judge in one's own case, etc. And I guess you know that the President is not a Member of Parliament, and is not a Member of the National Assembly, and he will have no say whatsoever when Parliament takes a decision either way. He's not involved. In any case, it's not a judgment. That maybe the point you wanted to make was that the judge was suspended because he's being investigated, etc. But that does not have an effect on the institution or the Public Protector. The institution or the Public Protector might proceed with whatever investigation it would like to make. And then you made the point about fairness. You made it a number of times. Now, the Chairperson right from the beginning, in his opening remarks, said this process will be based on evidence and facts so that there is fairness and rationality. And we've gone through many processes. We have seen many court cases, in terms of fairness and rationality, and I can assure you, that if for whatever reason a decision has been taken that you might not like, you will not be able to add fairness as a ground for an appeal. It will not be relevant. I'm just saying that you've got to accept the terms and our processes. We know what fairness and impartiality in that instance means. The third point I would like to make is you refer to a constitutional case, and you said in that case, Parliament and the President were found wanting – that they failed in their duties. You did not mention which case you refer to. I was thinking that you are again referring to the Nkandla case, which was under the previous President, and under different circumstances. If you did not say that and you referred to a different case where the President failed, maybe you should just enlighten us. The next point I would like to make is with regards to the question of the secret ballot. I understand very clearly that you feel strongly about the secret ballot. I guess we will discuss that in the Committee. But I'm not under the opinion that it's the task of this Committee to make any recommendation in terms of the procedure that Parliament should follow. After we've completed our work, it's not for us to decide whether there should be a secret ballot or no secret ballot, it's not a recommendation that we can make. It's not on our agenda. It's not part of our mandate whatsoever. On my last point, in a lighter vein perhaps, Adv Mpofu, you started off referring to that song ‘A Cry, A Smile, A Dance’ and you explained to us what you understood in terms of the cry and the smile. You never said what you understood or what the point was with regard to the dance – unless it was when you said you are ready to rock and roll.

Chairperson: I didn't get the last part.

Mr Mulder: It was when he said that they are ready to rock and roll.

Chairperson: Oh. Hon Hendricks.

Mr G Hendricks (Al Jama-ah): Thank you very much, Honourable Chair, I have a quarrel with the view.

Chairperson: You have a quarrel?

Mr Hendricks: I have a quarrel with the view that this Committee is engaging in a futile exercise. This is a people's committee appointed by a people's parliament to do the people's job. Don't throw at us Roman law, Dutch law and British colonial law, etc. We are very happy as members of this Committee and there seems to be agreement that these 20 days are all about the so-called 'misconduct cases'. I can't understand why we can't zoom in on those four cases and listen to the versions of both parties and let this Committee write up its report. You know, it costs a million Rand a day; fiscus pays a million Rand a day. As far as the legal costs are concerned, we will have to look at those costs as well. This matter has also dragged on for two years because in a committee like this, they used Roman law, Dutch law, all these kinds of laws to prevent this committee from doing its work. So I hope there won't be any further impediments for the people's committee to carry on with the job, which is to listen to the four cases of misconduct. I was disappointed when the Evidence Leader painted the picture of so many misconduct cases. Then later on, I was very satisfied that it is only four cases. No mention was made of the thousands of cases that promote a democracy.

Chairperson: You mean the four charges?

Mr Hendricks: No, what I'm saying is that there was reference to many cases that smacked of misconduct. But at the end of the day, the Democratic Alliance put before Parliament four cases, and that is what we are dealing with. We are not dealing with all the other cases. What was not mentioned, to balance these matters, was that the successful cases did not go to the High Court. It is not in dispute that they promote our democracy. Now, I took part in one of those cases. When the Public Protector’s Office…I dealt with seven people there, and eventually, the Public Protector made a visit to Masiphumelele. She came with high heels and we told her to put on gumboots because the African child in that part of the far south was living in sewerage, eating in sewerage and praying in sewage. And so the Public Protector, if she remembers, sat down with the Mayor at the time and told her "This is the worst living conditions I've seen in my life". So there wasn't a punitive order. There was some agreement to fix the problem. I had no evidence that the Public Protector was involved with the work of the other seven people. My point, Mr Chairman, is that a lot of people were involved leading up to the Public Protector putting a signature to the outcome. Why are they not sitting here? They are part of everything that led up to the Public Protector making a determination, which is now before us as a case of misconduct. Shouldn't the Deputy Public Protector also be sitting here? She may have been involved because if seven people were involved with this case that I personally lodged in Masiphumelele. I would imagine many other cases where the legwork was certainly not done by the Public Protector but by the other people, especially those four charges, are against the Office of the Public Protector rather than just the Public Protector. That is one of the points. I worked in that field. I must have done 1000 cases on this issue. That in my view doesn't make the cut, because from a labour relations point of view, it results in job impoverishment and assault on the right to work and human dignity. We've heard from our legal eagles – I hope that is not a derogatory term – that we have an obligation to protect the Public Protector. So I call on you, Chair, to ask President Ramaphosa to reinstate the Public Protector so that this Section 194 Committee can continue its work with honour. I would like to end there. Thank you very much.

Chairperson: Thank you Hon Hendricks. He will be followed by Hon Xola Nqola, followed by Hon Brett Herron.

Mr X Nqola (ANC): Thank you very much, Chairperson. Adv Mpofu raises a very critical point regarding the impact of the court judgments into the inquiry – will they be binding or will they merely be relevant. But amidst that, his submission and his input is majorly reliant on court judgments or arguments made by judges, whether it be a minority or majority judgment. So the second thing is that let us officially as the Committee welcome the Evidence Leaders of our Committee. I think it is the first time that we are engaging with them in a setting of this nature. The third part, Chair, relates to the emphasis you have made on the issue of there being no predetermined outcome, which I think Adv Mpofu equally entertained correctly. I think the importance of you saying, that is, that we are dealing with a matter of public interest and we must not think that society does not have a view around what is happening. And we have seen political organisations issuing statements about the process itself. We have seen civic organisations asserting their convictions around this kind of a process. So I think I want to support your sentiment, Chairperson, that indeed, we are officially seeing on record in this Committee that there is no predetermined outcome. What will determine the outcome is the evidence led and used in this inquiry. So we are running an inquiry; it is a fact-finding mission, Chair. The issue which relates… or which Adv Mpofu raised sharply, is Section 194(3) of the Constitution which relates to the suspension of the Public Protector. And I think you have correctly captured the views of this Committee when you said it's a matter that lies with the Executive, not the legislative arm of government. And I am sure that Mr Mpofu [is aware] that we would be breaching the doctrine of the separation of powers. Yes, indeed, we are mentioned in Section 194(3) on the basis that the powers given by the Constitution to the President are premised on us, Parliament, resuming the inquiry. That is the context at which we are mentioned in that section of the Constitution. But equally, we are on the same level in terms of understanding how to establish when the inquiry has begun. That is a very critical question that he has raised. In my point of view, Chair, there is a National Assembly resolution that establishes this kind of inquiry. Then you have the first meeting of the inquiry that elects the Committee Chairperson; that adopts the programme; and adopts the terms of reference. And at that point, it would have declared that the inquiry had resumed. It does not resume on the basis that witnesses are called a month later. The process would have resumed, Chair. Okay, let me not over emphasise that point. But I am glad that the directives, Chair, are actually clarifying the matter to what extent the evidence leader participates and to what extent do the representatives of the Public Protector participate. All I can say conclusively is that they are saying, ‘although we're going to be assisted by our Evidence Leader and the Public Protector is going to be assisted by her legal team but we, the Members of Parliament, are not going to usurp our power to hold the Public Protector accountable, as encapsulated in the Constitution’. As much as the Public Protector will not usurp her responsibility to account to Parliament, as envisioned in the Constitution. So I thought I must equally venture into that, because I think it helps to bring us to the inquiry we are to conduct. There's an issue which I think either I missed it when the Evidence Leader was presenting or it was not captured. The entire process we are to conclude probably in September, in terms of the programme, and at the conclusion we are supposed to have a report. The report is supposed to have findings. Let me leave it there on findings. But as things stand, we have four charges, that are premised from the motion and the Independent Panel’s assessment of the motion. But I must stress that if it is in the report, that the Committee exonerates the Public Protector on all charges, that report would then be submitted to the National Assembly of course. But there is a critical matter, that when you have four charges and you are found guilty on one but exonerated on three, it does not mean that the Committee would pose recommendations to Parliament that you are completely exonerated. So I'm trying to make sense of some of the issues that we as a Committee will have to face. Let's say equally, remember Mr Mpofu speaks about – which I think is a very good point – whether we are using a narrow approach or a broader approach. Making a comparison of the motion and the Independent Panel report, I do not see where the difference is because it is a synergy of information and processing of information. In the directives, it is said that when this process proceeds, the Committee may feel that of the evidence that is submitted by a particular witness, that it must actually make a Public Protector accountable to that. The process of five days is another thing, they are just operations. They are not that important. So I'm saying apart from the motion, apart from the Independent Panel report, we may find some things having to be added in what we will be processing. I think Chair, generally, we agree with Mr Mpofu. The Chair usually says…Mr Mpofu, you call it uncharted waters, whereas the Chair says it is virgin territory.

Chairperson: And you like that.

Mr Nqola: It is a virgin territory, Chair because it is the first of its kind. We are here to test if the system of government is working. We are to be an example of how the future generations are going to deal with matters of this nature. So, we must run, indeed I agree, a fair, impartial and credible process. So we help the system of governance to be able to say… of course, there are lessons we will all learn. Apart from that, I am generally fine, Chairperson. Thank you very much.

Chairperson: Hon Herron.

Mr B Herron (GOOD): Thank you, Chair, and thank you to Ms Bawa and Mr Mpofu for the opening comments or opening arguments. There are just three areas that I wish to canvas. The first is a comment that Mr Mpofu made, which I do not think he fully concluded or developed, where he said that the suspension offends the rule against bias. And I think it would be important for this Committee in considering the extensive input from Mr Mpofu around bias and the suspension, and that he concludes that argument because I do not think it was fully concluded other than it was referenced to the statement that the appearance of bias is too ghastly to contemplate. But I am missing the link. I wonder if Mr Mpofu could conclude that. And then on the question of the submission that we are not bound by court judgments, which was really the point that the Evidence Leader was making. I understood the Evidence Leader to be making really two points. One was explaining the hierarchy of courts in terms of legal precedent, and that we are all obviously bound by a precedent set by a court until such time as a superior court overturns that. But there is a second aspect, which I thought is what the Evidence Leader was proposing. And that is that we are not going to re-litigate the reviews through this process. And so when the Evidence Leader said we're not bound by the court judgments, my understanding was that she was saying we are not going to reopen those cases to be re-litigated in terms of reviews here, and that we can accept the judgments at face value. As you correctly said, as Mr Mpofu correctly said, the Independent Panel said it's a different context. So my understanding and I would like Mr Mpofu to perhaps help the Committee, is that if the Public Protector was to bring evidence that disputes some of the adverse personal findings that are in those judgments against the Public Protector incumbent, that this Committee can then consider that evidence, regardless of what the court said. I am not sure if I am making myself clear but I am trying to understand the link and to distinguish what I think the Evidence Leader was saying. And then finally, I would like to understand Mr Mpofu’s proposal/submission regarding the sifting. The process started with a motion with a number of charges, those charges were supported mostly by judgments and court judgments, and to some lesser extent, affidavits. The Independent Panel then considered all of the documentary submissions that supported the original motion, and still concluded that there was a prima facie case of incompetence and misconduct, but excluded some of the cases that were presented as supporting those charges. So is Mr Mpofu suggesting that there is a prima facie case based on the Independent Panel’s ultimate findings in the Annexure A but it excludes some of the cases that were used in support of that recommendation? Thank you, Chair.

Chairperson: Thank you, Hon Herron. From the virtual platform I see the hand of Hon Shaik-Emam, I now recognise you.

Mr A Shaik-Emam (NFP): Thank you very much, Chairperson, and thank you for those briefings that we have. Now, Chairperson, I'm a little bit concerned particularly, and I think Adv Mpofu has raised this as well, on the independence or objectivity of the Committee when we have media, or in the public platform, make statements, more in support of wanting to remove the Public Protector. Now, when anybody does that, it questions the integrity of the Committee that is now sitting. So I must agree with that. The second thing I must agree with is that you cannot be objective or be independent if there is an investigation against you, and then you yourself go and suspend someone else. Surely, I think we must be honest about this. It clearly indicates bias in my understanding. So that is the next problem that I have. But I think what is important, is that this process is the first in many processes, which we are now starting to establish whether the Public Protector, if the term I am using is correct, is fit to hold office or not. And when we deliberate on this matter, we will be making recommendations to Parliament, of course, of which all of us are Members. Which decision will be taken. So, you know, I think in a nutshell, we must understand and I want clarity on this, Chairperson. The entire decision to decide whether the Public Protector indeed is fit to hold office or not, is based on a handful of matters: judgments that were given against her. But at the same time, there are a whole lot of matters that the Public Protector has been successful . Now, I'm trying to understand, on the one hand here, we have a whole lot of matters that the Public Protector’s Office has been successful. There is a minimal number of matters here that she's been unsuccessful. But based on the unsuccessful matters of the judgments against her, is why we are deciding to have this particular sitting on this investigation that is going on, this inquiry? And I'm just trying to question. But lastly on this, is the information going to be made available for matters that the Public Protector has presided over but that have been successful? So that when we are going to interrogate these things, we are going to have an objective view on both the successes and the failures, so that we will be able to make an informed decision on whether it is in the best interest of the Public Protector to be removed or not. I will stop there. Thank you very much.

Chairperson: Thank you Hon Shaik-Emam. I have not seen any other hand on the virtual platform. In case I have missed this, is there anyone else who would like to raise their hand on the virtual platform. Now, I think we spent a lot of time in the morning during opening arguments, I think the Members are only reflecting on those. I do not expect the same marathon going forward. Now I am going to recognise Adv Mpofu. There are a number of issues where responses are sought, perhaps to focus on those issues without us rewriting the morning session, Adv Mpofu.

Adv Mpofu: Thank you, Honourable Chair. You will be glad to know that fortunately there were some overlaps, so I might not address all the issues but I will certainly cover the key issues. Let me cut to the chase. Hon Mulder, yes, you are right that the references made on the duties of the Public Protector come from the EFF vs National Assembly matter, also known as the Nkandla Judgment. They are called the trilogy of cases. The Nkandla Judgment or the Secret Ballot case. But the only point I will make, Hon Mulder, because that issue is going to come up again at the end, is that it does not matter. These are questions of principle. So if the Constitutional Court says the Public Protector must be protected against the powerful, that is true in 2016, as it will be true in a hundred years. If it says that she's the biblical Goliath, rather, David versus Goliath, that's the reality. Because this is a unique Office. That is all the point that was being made. It is an invention. Actually, we are the only people who call it the Public Protector, and that Judgment says that, that alone speaks volumes. I think that is why you do not call it an Ombud or whatever – we call it the Public Protector for a particular reason. So that the principle… But on your second point about institutions as the individual, thank you for raising that because I think there is so much confusion, and I say that with a lot of respect, around that aspect. The institution and the person in the case of a Public Protector are inseparable. And that is why there is this hullabaloo that she must not be represented by this and that and so on, because there's a complete misunderstanding of that fact. The institution, okay, is…if you go to Section 5 of the Public Sector Act, it talks about a juristic person. That is the institution, okay. But the human being, the person, is the Public Protector. And this goes for only two of the Chapter Nine Institutions. With all the other Chapter Nine Institutions, it is the chairperson or whatever, of the Commission, which means the institution but, when it comes to the Public Protector and the Auditor-General, it is the person. Alright?

You will find that in Section 193 I will just read the first part because I do not want to debate the section but just to drive home the point I am making. It says “The Public Protector and the members of any Commission established by this Chapter must be women or men”. Now what that means is that the Public Protector and the member of the Commission are human beings, but the Public Protector is a man or a woman. An institution cannot be a man or a woman. And that is why Justice Mogoeng in his judgment says “her remedial powers…she must not be sabotaged”. It is a person. It is a human being with blood (and) human flesh. But it is a debate we will deal with in another context. And if you are interested, on the 25th and 26th when we are in court, defending ourselves against the Chairperson and the Speaker about legal representation.

Chairperson: I am happy that it is part of the DNA of this process.

Adv Mpofu: We will explain that. But the shortcut to this is Section 195. No it is not section 195, it is section 189. No, no, it is not 189, this refers to the AG. Sorry. By the way, without digressing, the reason the certification case elevated the Public Protector and the Auditor-General for further protection was exactly because of the kind of work that they do. So this section is literally a mirror image of it. Section 193 says: “The Public Protector is appointed for a non-renewable period of seven years”. So that is simple. That must be a person. This institution cannot be appointed for seven years. This institution will be there for 2000 years. So when the section says the Public Protector, it actually literally means the person, or the next one, or the next one, or the next one.

Chairperson: You can raise your point.

Mr Mulder: It is also a person that is removed.

Adv Mpofu: Yes, exactly. Absolutely. But that is exactly the point. I mean, we are at pains to point this out. Unfortunately, it did not succeed. That you cannot say that you are suspending the office. You cannot. You are just suspending a person who has dignity and inherent rights in terms of the Constitution. If you listened to the debate in the court, the last court case, I was at pains to point this out. It did not assist. But to show that…there is the Masetlha case, I think, where Justice Sachs said that “for incumbents of public office, bread alone is not what it's all about”. In other words, the fact that you are suspended with pay is irrelevant because those are people with feelings, and therefore, rather, you are violating, prima facie, their human rights. That is the point. And there can be no doubt that you are correct about the meaning of the word person. Remember in Section 194(3)(a) that talks about suspension, the word person appears twice. It says the “President may suspend a person at any time after the start of the proceedings of a committee of the National Assembly in respect of the removal of that person”. That is exactly word for word, what section 194(3)(a) says. There is no doubt about that. The issue of the prerogative of the President. Okay? Maybe you and I know what you mean. But for the purposes of clarity, there is no such thing as a prerogative. The royal prerogative remains in England for the queen, who is second only to God, according to them. Here in the real world, whoever you are, even if you are the president or whatever, you are subject to the rule of law. And that was established in the SARFU case, I am sure you know. So that is why I was saying when it says the President may suspend, that immediately says that it is reviewable. Because we have to say, okay, you have two choices – to suspend or not to suspend. Why did you suspend? Then he will have to give the reasons. And then we will test those reasons for rationality, in the usual way. That is what I was trying to explain to the Chair. The rule of law means that anyone must justify. It is what Prof Etienne Mureinik called the ‘Constitution introduces a culture of justification’. You can never exercise public power which you cannot justify. It is not the other way around, you cannot say, no I am exercising it and then sommer just do it. You must be able to justify it through consistency. So the last point is fairness. Fairness is a concept, that if I may, juxtapose that with Hon Herron’s point about the rule against bias. As I said, fairness is pronged, there are other prongs, in terms of the so-called rules of natural justice. It is the right to be heard; no one quibbles about that. But what is called the rule against bias, it has the following. One, you may not prejudge the case, the point that was made by the Chair. Two, you may not be a judge in your own case. In other words, I cannot, if you stole my car, be a judge in that case; it is quite obvious. It is a rule of justice. Three, you must recuse yourself from a decision in which you are conflicted. That is the rule against bias, which lawyers refer to as the 'nemo iudex in causa sua'. Now, those three elements are relevant here. Why? Because we are saying you have a point that links with Hon Hendricks and Hon Shaik-Emam’s points. What have we got here, Hon Herron? We have the situation where a President, who was accused of bias in respect of all sorts of things, including the CR17 funding – I will come back to that. But, you have a President who is accused of… in respect of whom the ATM puts a motion, I think on 3 June about the Phala Phala scandal. The Public Protector – I may be wrong on the date, so forgive me – on the 7 June writes 31 questions to the President: Where was the money? Where were the dollars? And so on and so on. And then on the 8th she goes public to say, "I have released these 31 questions". On the 9th, the President suspends her. The President suspends her a day before judgment of a court of law in South Africa. If that does not make you to be concerned then nothing ever will. Who does that? There is a judgment tomorrow, which is going to determine whether or not you have the power to suspend. But you do it today? ‘No, no, it must be done today’. Why can't you wait twelve hours, as the judgment is coming tomorrow? It might vindicate you, in fact, as it happens, it did. But why would you suspend someone, who has just given you questions, a day earlier than it is legally permissible? When there are two court cases in this country that said the former President Zuma may not… that is the point I was making. I think it was the Chair who interrupted me. The former President was prohibited from appointing a judge. A judge. The Court said, we know that judges are presumed to be neutral. But it is the appearance. What message does it send to the public? And that goes to your point, which is that it is Section 96(2) that is important for your purposes. Remember, in the Nkandla judgment, one of the things that we were saying was that President Zuma had breached Section 96(2), and Section 181 – the one that I spoke about earlier. But what does Section 96(2) say? It says that ‘unlike you, and me and other people, if you are a President, or a member of the Cabinet, you have even a higher duty in terms of conflict’. In other words, you and I might have a conflict, if this is my car and what have you. But if you are a member of Cabinet, there's an added constitutional duty, which says “that members of the Cabinet and Deputy Ministers may not undertake any other paid work; act in any way that is inconsistent with their office, or …” and this is the important part Hon Members “... expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests." Let me repeat myself “expose themselves to any situation involving the risk of a conflict”. Now for the lawyers in the house, you will see that it is the lowest threshold. It basically says you can do anything and expose yourself to anything. That shows the risk. And Justice Mogoeng said that risk does not even have to eventuate. The risk is sufficient. And that is how we succeeded against President Zuma, because we said, the judges might be fair but the president himself might actually have no reason to choose a pliable judge. By doing so, he will be exposing himself to the risk of a conflict. And for a President or a member of Cabinet, that's sufficient. Was there a risk? If someone sends you questions to investigate you… A policeman comes and says, I am investigating you tomorrow, and you happen to be the deacon in the church, and then the following day, you suspend them in church? It is obvious that there is a risk that you are doing it because they came to your house yesterday to ask you about this. And that is what Hon Shaik-Emam is talking about. One does not have to be a lawyer, people. There are just certain things that are so obvious that it should just… your own sense of fairness should say no. Again, the people might all have good motives but what does it look like to a two-year-old child? The futile exercise, Hon Hendricks, I do not know if you are directing that to me. I was certainly not saying that is a futile exercise. I was saying we must guard against going that way. As the Chair was saying, no predetermined outcome. Let me just read you a very short thing; because we can go through this and then it becomes a complete waste. That is really the point I was making. This is what the Constitutional Court said about cutting corners, “Without knowing whether the Assembly holds the view that the President has committed a serious violation of the Constitution, it would be difficult for him to mount an effective defence. The procedure followed by the Assembly here does not accord with Section 89”. You can refer to Section 194, but here's the important part: if that motion had succeeded, it would not have constituted impeachment and removal of the President as contemplated in Section 89(1), instead, it would have been an unconstitutional removal of the President from office and would have been liable to be set aside on review. I am just saying this is what you must avoid. You can go through all this and never move up and down and so on. But if it does not accord with the Constitution, it will be an unconstitutional removal of the President…Public Protector, from office and [it] would be liable to be set aside on review. But for the rest, I agree with you, Hon Member, that part of the evidence [is] our burden, and I can assure you that we accept it. It is to do exactly what you were saying. In other words, we will call the Public Protector, if and when we come to that, to do exactly what you are saying, Hon Hendricks. How does it work? When the Public Protector says she has done 50 000 investigations since she came to office, it does not really mean that she did 50 000 herself. And you are quite right, obviously not. There must be layers of investigations that go to her office and others that do not. If I have lost my cell phone, and my learned friend has taken it to the Public Protector, I am sure she never even gets to hear about that. So you're quite right. And we need to drill down to that level. At what point does it come to her? What is the role of the investigator? Does she take the work and say ‘nah, throw it away and redraft the thing’? The buck, we know, stops with her. But in reality who is liable? To what point? I think that is the point that I am hoping Members will take note of what Hon Hendricks was saying. Yes, Hon Nqola, there is a difference between the binding effects of legal decisions in law and fact. Now, a decision might be binding in law. In other words, the principles like what I have just said, whether this section or that section applies and so on. And as I said to Hon Mulder, that does not really matter. Whether it is President Zuma or President Ramaphosa. When it says the President, it is the President. So decisions of the law, or legal principles are binding even on other courts but facts are not binding. I will explain this maybe through Mr Ebrahim later, because it is a very crucial point, also, in relation to how the courts work. Let me give you an example, in the Constitutional Court, you are not allowed to appeal. Fact. So, in fact, it is actually shocking, even to me as a lawyer when you read it. It says, the law says, even if the other court got it so wrong, that… you know, if it is only a question of fact, you cannot take it to the Constitutional Court, because that court only deals with constitutional issues, which are legal issues. So the mere fact that, for example, the Public Protector, which is peddled along, did not appeal a particular judgment does not mean she agrees with the factual findings. It simply means that there were no legal constitutional points. Sometimes she would have tried but the court rejected the appeal simply because it is just a matter of fact. So there is a burden upon you to determine the facts afresh, unfortunately. Someone said something about the doctrine of separation of powers. The doctrine of separation of powers does not mean what is being said here, that the President suspends there and then it has nothing to do with us – no. The accountability mechanism for the Public Protector is here. It is the National Assembly, right? There is no doubt. But the law imposes or gives a duty to suspend, to the President. So already you have a cross-pollination of the Executive in the legislature because the real accountability is here, but the Constitution outsources, so to speak, the suspension function. Therefore, that is why I am saying it is your business because you are accounting or even the President accounts to you, for that matter. So it is a double accountability…cross-pollination. And the doctrine of separation of powers must not be used conveniently. Where was the doctrine of separation of powers when the Speaker wrote to the President to ask him to suspend the Public Protector? That you see the...

Dr Mulder: That was not said. You cannot say things that are not true. Did the Speaker ask that the Public Protector be suspended?

Mr Nqola: That is not true. The letter is on record. There is no such a thing.

Dr Mulder: You said that. That is wrong.

The Chairperson. Okay, hold back. Thank you, Hon Nqola and Hon Mulder.

Adv Mpofu: No, that is good. Let us say… that it had the desired effect. This is the point, Honourable Members, I demonstrated to you that the Speaker has no obligation, either in the Constitution or in the Rules to write any letter to the President about the so-called starting of the proceedings. Let me tell you plainly; if Ms Nosiviwe Mapisa-Nqakula, the Honourable Speaker of this Parliament, had not written that letter on the 10th of March, we would not be sitting here. She would not be suspended, and so on and so on. I can tell you that as a matter of fact. Take it or leave it. But if she had not done that simple act of writing that letter, I would be in Joburg.

Mr Nqola: But can I get a question Chair?

Chairperson: Just pause, Adv Mpofu. Hon Nqola.

Mr Nqola: Yes, Chair, with due respect, in terms of the operations of government, there is what we usually call the three heads of state, which usually meet, particularly on matters of mutual interest. So would Mr Mpofu say that is an illegal tribunal; that it is bogus? Is it an illegal way of operating in the government system? It is a question.

Adv Mpofu: Fair question. It is a fair question. And the short answer is no. There is not nothing wrong with the three arms of government meeting, or even discussing things that have never been, well, let me just give you a small example. These things are crucial for a democracy. You remember your first day in Parliament, when the Speaker and the President have to be elected, the Constitution is very clear as to who does what. The Chief Justice comes to Parliament and you Honourable Members nominate people – one person to become the President and one to be the Speaker. That is all the Chief Justice does – preside over that because of what you are saying, separation of powers. So we have seen it. On that day, actually, you have the three people sitting there. You have the President, you have the Speaker, and you have the Chief Justice on every first day of this Parliament, you have those three people in the same room. That is not a breach of separation of powers. A breach of separation of powers will happen when the President or the Speaker says ‘Chief Justice Mogoeng, there is a case in some municipality, and we think you should put Judge Tshabalala’. That is a blatant breach of separation of powers. It could happen. It has happened in the sense that, as I say, the Speaker without any authorising instrument in the rules, in the legislation or in the Constitution, woke up one day on 10 March and wrote a letter to the President to say the process and decision of 194(3)(a) has started – apart from the fact that that was untrue, as I demonstrated to you earlier, because the process of section 194(3)(a) has not started and anyone really should know that by now. Apart from the fact that it was factually incorrect, it was also intended, for one thing. Why would she write that letter to say the process has started? Where did she get those words Section 194(3)(a)? That is why I say it might not be as literal as you and Hon Mulder are saying, to suspend. But tell me why she would write that letter? What got into her on the morning of 10 March to write that letter, if it was not to say to the President, ‘It's all systems go, wink wink, chop her head’? And luck would have it and by some miracle, on 17 March, the President wrote a letter to the Public Protector saying, “I have received a letter from the Speaker, a copy of which is annexed here”. And you are saying the two things are not connected? The copy says that the process has already started; therefore, it means Section 194(3)(a) has kicked off. Therefore give me reasons within 10 days, why I should not suspend you. This is exactly how it happened factually. So you can deny and jump but that is actually what happened within the space of seven days. Do you think the President would have woken up on the 17th and written that letter had he not received the letter?

Mr Nqola: I hope Mr Mpofu won't be offended….

Chairperson: Wait, just pause. Let him complete.

Adv Mpofu: No, I am done with that point. I think it is…I cannot do any better than that. And by the way, we pointed this out to the President to say firstly, the letter you are relying on is wrong and we pointed out… Another reason we said the proceedings, you see all these linguistic gymnastics here of setting the precedent started. I hear various versions. Let me ask you a rhetorical question that does not require an answer. Can you say an inquiry, let us say the Zondo Commission, can you say that Commission has started when there are no charges? Thank you. Please, people, you sat here and adopted the terms of reference on 29 March but your Chairperson tells you that the process started on 22 February. What is that? How can you start a process, a commission of inquiry like the Zondo Commission, when there are no evidence leaders? Because you cannot, Hon Nqola.

Chairperson: You are directing the Chair.

Adv Mpofu: No, no, I am sorry Chair. I apologise, Chair. In fact that is a rhetorical question. No, you cannot. These Evidence Leaders, my colleagues were appointed by you on 29 March 2022. How on earth can you say that the process started before all those things happened? Really man. Everyone knows the truth. Everybody. All these people who do these things, and they know the truth.

Chairperson: You'll have a follow-up later, just hold back.

Adv Mpofu: I am just saying that one does not need a law degree to know that you cannot say a process has started when all those things have not happened. You have not even wrapped up your own programme. You have not even written to the Public Protector to say we want your responses. You have not written to the public to invite their… and you say that the process has started. Why? ‘Because we say so’. No, it does not work like that.

Chairperson: I thought that you had concluded that point?

Adv Mpofu: I thought so too, but it looked like it was not landing. The sifting issue for me is very simple because it is about establishing a prima facie case at a particular level. This is a filtering mechanism for you, in my estimation, where there was prima facie evidence, then you proceed to the next stage. I will make an example, the Criminal Procedure Act, Section 174. If I am charged with car theft and assault, and then at the stage of Section 174 of the Criminal Procedure Act, I then say to the judge, ‘there are 20 witnesses here but nobody has ever mentioned me stealing a car. Therefore, I want to be discharged in terms of section 174’. It is exactly the same words that I used here. It is a prima facie case. The court will then say, ‘Yes, what is the point of having this whole trial and lawyers when not a single witness has mentioned you in terms of the car theft. Therefore, I am discharging you in terms of section 174. But, with the [second] charge, witnesses have mentioned you, therefore you have a case to answer’. That does not mean that you are guilty. But you have a case to answer in respect of that second charge, that is all. And that is what we are asking you to do. Otherwise what was the point of having the Independent Panel? Shaik-Emam mentioned the question on selective judgments. What about the judgments where the Public Protector was successful? Hon Mulder mentioned the Nkandla Judgment. That judgment, we will bring you evidence here, created the binding effect of remedial action, sparked a new era of litigation because before that, the remedial action was not binding, or at least was believed not to be binding. So it was ‘Oh well, she has said this about me, so what’. But the minute the remedial action was given legal bite, going back to prerogative – which is almost a charge; like almost a court order; not quite a court order, but it is binding. Then obviously, the culprits and the people now wanted to challenge it. No less than Adv Madonsela made that very clear, to say, people, we are now in a new era, we are going to have cases left, right and centre. And she was obviously proven right, because the binding effect is obviously going to create more litigation. That is why Adv Mkhwebane’s era was then marked by this heightened litigious atmosphere of everyone, including ministers and presidents and what have you, challenging the judgments. This thing that she is accused of legal representation and legal fees, is exactly what was predicted by her predecessor: which was to say now we are going to have to need more money for legal activity because of this new atmosphere. Shaik-Emam said ‘you cannot be independent if there is an investigation against you’. That is the law of South Africa. The other case that I wanted to mention was the case you might remember, the Nxasana case, which had something to do with the NPA. There, the same court said President Zuma cannot participate in the hiring/suspension of the NDPP in a situation where he is being investigated by that institution, which is obviously correct. But now suddenly we want to forget these things and President Cyril Ramaphosa can be investigated for six matters – each of them an impeachable offence. Each one can land him out. One is the Zimbabwe trip. Two is the so-called Judicial Capture. Three is the Bosasa matter. Four is the Mervyn Dirks matter about him knowing people in the ANC are using public funds. Five, is the Glencore matter, which was a complaint raised by the UDM. Six is Phala Phala; the big one. Each one of those is an impeachable offence. President Zuma could not act due to one investigation, but President Ramaphosa can suspend with six? It is like six life sentences facing him. Really? Really? And he must do this a day before a court case is coming, and we say ‘No, it has nothing to do with us’? Thank you Chair.

Chairperson: Thank you Adv Mpofu. Colleagues, I want us to wrap up with a summary but I will give you a quick follow-up, starting with Hon Herron, Luzipo, Mileham, Hon Holomisa, Hon Mulder, Hon Hendricks and as well as Hon Gondwe. Quickly in that order. Snappy ones.

Mr Herron: Thanks Chair, I will be quick. Perhaps my questions were not clear enough. Adv Mpofu established perhaps an argument for bias on the part of the President in terms of breaching the rules – the rule against bias. But what I was really asking is how does that translate to bias on the part of the Committee? Secondly, the question I do not think was answered was around the value of the court judgments when you said we're not bound by those judgments. I was asking if we can take them into account unless there is evidence that you bring to rebut the court findings.

Adv Mpofu: Chair, with your permission can I just kill that quickly.

Chairperson: You want to rush for that one?

Adv Mpofu: Yes. I will take one second. The one about judgments I answered when I was answering Hon Nqola so I thought it was covered. I apologise if it was not. All I was saying was that you should go to [103.1] of the Independent Panel Report. That is really all I am saying. In law, they say that context is everything. And the Panel said, “we understand that these judgments were being done in different contexts”, so you cannot just transplant them into this process. But does that mean, as I said earlier, that they are irrelevant? No, because they can be taken into account as a particular point. But it does not mean that it absolves this Committee from coming painstakingly to each of those findings for itself. Not because some court is set on satisfying that is so. Otherwise there is no point in us being here. You can just give the judgments while you are at home… and then you just give a judgment.

Mr Herron: Which section?

Adv Mpofu: Pardon? [103.1] of the Independent Panel Report. That is where they explain [what] we have said to the Panel in our representation that they cannot be bound by the court cases for the reasons that Hon Herron was explaining. That was the response. What was your first point?

Mr Herron: About the bias.

Adv Mpofu: Oh yes. The rule against bias kicks twice. One, I will not go through that whole thing about the bias of the President. But as far as the bias of the Committee is concerned, it is what I call the second leg. What the Chair opened with in the morning: predetermined outcomes. I am saying that is what this Committee has to guard against. In other words, as I said in the morning, if we are here just to confirm – what we all know – that this party has got this position, and this one has that position, then again, we are wasting the taxpayers' money. Or, what is worse? If we are here with people who said… Imagine, Hon Herron, let me give you this example. I am a judge in your case, and the day you are charged, I say on television, ‘Oh, I am going to pop some champagne now’. Would you expect justice from me? No. You do not have to answer that. That is the point I am making. If there are people here who have said she is guilty, she must resign, whatever, all those prejudging comments, then what justice can we expect? But by saying that, I am not naive not to understand the fact that there is a political element to this process. If I deny that I am not expecting these people here to be holy mother of Mary, or whatever the expression. But I expect there to be independence, because I do not believe there is such a thing as objectivity. To be independent and open-minded to all the things that my learned friend was talking about; because otherwise we are just wasting our time. And the question is, can we then get justice? And that is why I was talking about secret ballot, Hon Mulder. It was in that context. I do understand that it is not immediately relevant, and the Chair correctly pointed out, it might never even be relevant, if there is an exoneration. But the point I am making is that the UDM case established that even though all the Members on day one swore to uphold the Constitution, the reality is that when they have to vote against their own leader, who might be the President, they will not do so. Why? Because they could lose their seats, and so on and so on. We all know what happens. That is why that case established the principle that for these – the motion of no confidence was the issue in that UDM case – there must be the option of secret ballot for that the integrity. Again not to say Members of Parliament are crooks or they want to cheat the system; it is just to understand that their duty to the party might sometimes supersede that duty to the Constitution, or they might want to play both or whatever. So rather have a system where they vote and we know that there is integrity. And indeed, what happened in that particular vote, for the first time, we had on my account about 40 or more ANC members voting against their own.

Chairperson: Thank you Adv Mpofu. Next is Hon Luzipo.

Mr S Luzipo (ANC): Thank you Chair. Good afternoon to Members and the team of the Public Protector. I hope Chair, I won't be messing up your meeting. I listened carefully and I nearly said we are at risk at a procedural level as I understand we are dealing with an inquiry. Under normal circumstances, you would get a presentation by the evidence leader, subsequently followed by the defendant, whatever you call it. But before that process, whatever the nature of an inquiry because I can see what the advocate may be driving. There is something called the point in limine. The point in limine raises bases and conditions under which there is an objection, or there is something that was amiss before. Now the reason I was saying it is from a procedural point of view is I do not get a sense whether in the presentation there is an objection to the process or procedure. Let me put it upfront. The advocate's objection is that: 1. we do not think from this Committee we will get fairness on the following grounds, for example, already, the Speaker of the National Assembly, and the Chair who is presiding over this meeting, have already deposed in opposition to our application. So we end up debating when there could be a process after the debate, where there is no consensus; because the advocate says there is another process. And when a lawyer says there is another process, there really is another process. And we know what that process is. So maybe if we can get to if there is an objection, then in that objection, what is deposited? 2. He then made a comment that the Chair cannot make a ruling: we do not expect the Chair to make a ruling because it may not be objective to the process, that he can make a ruling. I then started to be worried that there can be a silent deposition of this objection. So if we can deal with that issue, so that we know… otherwise, under normal circumstances someone will say, Chair, we're putting an objection? Yes, excuse us that we did not raise it upfront. Therefore can the Committee be given an opportunity to raise this point in limine. The failure to address these concerns – we may find it very difficult. I am sorry if I am complicating your meeting, thank you very much.

Chairperson: No problem. Those issues are going to be responded to by myself when I say my last remarks. So you are not out of order. Objections have been registered and specified. We will respond to those issues. Hon Mileham.

Mr K Mileham (DA): Thank you, Chairperson. Good afternoon everybody. Chairperson, just a follow-up to things that Adv Mpofu said earlier – that the person and the institution are inseparable. Those were the words that you used.

Adv Mpofu: Sorry, sorry. I missed that.

Mr Mileham: You said that the person of the Public Protector and the institution are inseparable. My question to you is, in terms of section 181 of the Constitution, where it talks about other organs of the state protecting the institution. Does that mean that we as a Committee are unable to hold the person accountable? Does that mean we are unable to find the person competent or incompetent or guilty of misconduct? How does a Committee conduct its affairs if the person and the institution are inseparable? That is the first question. The second relates to the suspension process and you have gone at length to explain the issues you have with the suspension process. And my question to you is this given the terms of reference of this Committee, which relates specifically to the charges that have been brought against Adv Mkhwebane, how can this Committee make a finding on a process which do not relate to those charges? In other words, how can this Committee make a finding about the suspension process, which has nothing to do with the evidence before it? Then just a couple of other things. When you were responding to Hon Hendricks, you said that the Public Protector has people working for her who draft reports and she signs-off on those reports and ultimately, the buck stops with her. I agree with you on that. But when a court of law calls into question a person's competence for signing-off on a report that is legally incorrect – or I think in one of the court cases they used "legally incoherent" – how does that then align with the fact that there are people below that need to take responsibility? How do you justify that when the head of the organisation is signing-off on that whole process? My last point is also to something that Hon Hendricks raised. And that was about the fact that there are only four cases of misconduct or incompetence referred to here and thousands of cases of good work. And my question is this: do thousands of good deeds outweigh one heinous crime? Let me let me use an example. If I am a God-fearing man. I go to church every Sunday. I help little old ladies across the road. I donate to charity. I feed stray animals. But, I go home and beat my wife. Does that exclude or excuse my behaviour? And so the question is not what is good and that might come in if the advocate is found to be, I do not want to use the word guilty, but you understand what I am saying? If she is found guilty of the charges that have been put in this hearing, it might come in as mitigation. But it certainly does not exonerate her. If that is the case, I would like your opinion on that. Thank you.

Chairperson: Next, Hon Hendricks.

Mr Hendricks: My follow-up is in response to a follow-up. We expected this morning to be addressed by Mr Ebrahim to explain to us what the role of the Public Protector is.

Chairperson: That is coming tomorrow.

Mr Hendricks: That did not happen.

Chairperson: It was planned for tomorrow.

Mr Hendricks: Ja. That would have helped in today’s proceedings but I understand there may have been very good reasons. It is all about alternative dispute resolution, and I am just wondering whether Mr Ebrahim, who was the Chairman of the Constitutional Assembly, is the right person to address us on the crux of the whole establishment of this institution – which is an alternative dispute resolution. Which debunks what Hon Member said previously. So I just want to…

Chairperson: We can park that for tomorrow. We will be dealing with that issue tomorrow.

Mr Hendricks: So what I am asking Mr Chair and I will write to your Secretary, that I hope that there will be someone, an expert, that will address us on what is an alternative dispute resolution procedure and why was this the process used for this Chapter Nine Institution.

Chairperson: Thank you. Hon Gondwe.

Dr M Gondwe (DA): I thank you Chairperson. I have three very brief points. I am covered by Hon Mileham when he talked about separating the office from the person. Adv Mpofu, I wanted clarity there because you said we could not separate the person from the office. And then you have Section 193 speaking to the removal. So I was not entirely clear what point you were trying to make, because then you agreed with what Dr Mulder said. That sort of made the waters a bit murky for me. But I am covered by Hon Mileham. The second point I want to make is you painstakingly went into the biases of the President in suspending the incumbent. The President pointed out that the fact she is suspended, does not mean that the investigations against him stop. You have gone and talked about the probability and the risk of bias, etc. And my question is this, doesn't the fact that the investigations are still continuing, especially the one around Phala Phala… they are being conducted by the current incumbent, who is the acting Public Protector. Doesn't that negate or take away that probability and that risk of bias that you have gone into in great detail today? And then Chairperson and I think this question is directed towards you around the directives. These directives are in draft form. And I wanted to find out whether we would be taken through them as the Committee because we received them late last night, and you have just given Adv Mpofu a chance to have an input on those directives. I am not sure if the legal advisors are here today. I assume that they are the ones that penned them. But it would be great if we could be taken through the directives, and we can also get a chance to input on them. Thank you so much.

Chairperson: Thank you. Hon Holomisa.

Mr Holomisa: Thank you very much Chairperson, colleagues, Public Protector, Evidence Leader as well as Advocate. I have a little bit of a problem here. And I asked this question right from the start. And I am not satisfied with the way we understand the meaning of section 194(3)(a). And if we do not clear that hurdle, I am telling you, we will never finish this inquiry or even start it. What I would suggest we do, because we are still at a procedural level and we have wasted a lot of the whole day, and I predict this tomorrow. We are not going to start to argue substantive issues here soon. So let us get a legal opinion to brief us on 194 (3)(a). But do not bring the legal opinions of Parliament, because they have misled us in many cases, which have [been] won in court. Get a senior counsel to interpret this for us because the role of the President and the whole issue which has been raised here around the suspension, it makes some of us uncomfortable. We do not want to be channelled into a tunnel here. We have seen it before. At one stage we were told in this House that a swimming pool can be a firepool. Not again. Please, let us get an interpretation of this. There are different views. And let us try and work together as a Committee to make sure that we will arrive with the proper decision at the end of the day. But if we, at the beginning, are still fighting about this, we are not going to go anywhere.

Chairperson: Thank you. Hon Mulder.

Dr Mulder: Thank you Chairperson. I also want to start with Section 194(3)(a). And I hear what General Holomisa says, and I understand what he says. For what it's worth, for me that section is quite clear. As I referred earlier, I used the word prerogative. We know what it basically means. It simply implies that the President has the authority, call it what we like – the function doesn't matter – to do certain things. And it says quite clearly he may suspend under certain circumstances. That is what this section basically says. And if I could assist Adv Mpofu, I would refer you to Section 84(1), as we stick to the Constitution. It very clearly says “The President has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of State and head of the national executive.” The Constitution is quite clear. And then the Constitution says ‘he may suspend’. Now whether anybody takes him under review, that is something for anybody else to do. But in terms of the Constitution, he does have that right. And he did exercise that right. That is a fact. And from my perspective, it has no bearing on the work that we are busy with as a Committee at this stage. It has no bearing whatsoever. The second point I would like to make, Chairperson, is that I think if I understand Adv Mpofu correctly, he wants to argue that we are not bound by the factual findings by the courts in terms of different cases. I think that is actually very wrong. And the reason for that is you refer to the difference between principles and facts. Correct. That is why the Constitutional Court will not deal with the facts. It deals with the constitutional principles, and if there is a dispute on the legal or the factual facts, the Constitutional Court will not apply its mind. But, there are other courts; there are high courts; and there is an appellate division that will deal with that. I am not aware of any of those facts that are negative for the Public Protector that the Public Protector disagrees with, that have not been appealed against, to the highest level of court, who finally makes a finding. Now, if we expect this body to now act as the Court of Parliament, it's not going to happen. The evidence leaders this morning very clearly stated, this is not a court of law. It is not a quasi-judicial body. It is not a criminal procedure. But we are bound to take note of those judgments. Those are the factual judgments in terms of certain factual findings. And what we will do is not make a final determination or decision that the Public Protector should be removed. We will make recommendations to Parliament, who needs in terms of the Constitution to take that kind of decision. Last point, Adv Mpofu made a lot of points with regard to the letter of the Speaker, and that is an interpretation. There are, on a quite regular basis, communications going on between the three branches of government: it is normal practice. It is normal practice that Parliament informs the Office of the President of certain things that happen in Parliament, and the President informs us of certain things, and the judiciary may also be involved. To understand from a certain interpretation that this is something strange, that it is unheard of that the letter was sent; I think I disagree with that. Thank you Chairperson.

Chairperson: Thank you Hon Mulder.

Mr Holomisa: Just one point Chairperson, just one point. That is precisely why I am arguing that let us get a legal opinion on this issue. Because this Committee is mentioned in Section 194(3)(a). That is the interpretation we want. What is the role of this Committee vis a vis the suspension or the letter written by the Speaker, please.

Chairperson: Thank you Hon Holomisa. You raised that issue up front in the morning. And I am still going to, as I summarise, get to that. There are two questions from Hon Mileham and Gondwe that I would like Adv Mpofu to respond to.

Mr J Malema (EFF): Before that Chair.

Chairperson: Yes.

Mr Malema: It is Hon Malema here. I just want to put it on record that I support what General Holomisa says.

Chairperson: Okay. Thank you Hon Malema. Hon Nqola, before I go to Adv Mpofu.

Mr Nqola: Thank you Chair. I just want to put on record that I do not support what Hon Holomisa was saying. Section 194 (3)(a) is very simple and straightforward and does not need an expert. It is just simple Grade 12 English.

Chairperson: Thank you, Hon Nqola, I did say I would summarise the issue at the end, as the Chair. Adv Mpofu, the questions raised by Hon Mileham as well as Gondwe?

Adv Mpofu: Yes. But if you allow me, Chair, could I quickly start with Hon Mulder’s points very quickly? Just to put him at ease. As far as Hon Nqola is concerned, he reminds me of an English judge who said that the road to law is strewn with cases – it was a case on why we need audi alteram partem – that look straightforward and they were debated. So the interpretation of a constitutional provision is a very serious matter, as I say, even more than normal legislation because remember, the Constitution cannot just be changed willy nilly. So that is why I said to you in the morning, when the founders… ask yourself when you go home at night when the founders of the Constitution said ‘of a committee, for the removal’, what did they mean? Is this a committee for removal? If the answer is yes, then you are right. Simple. If the answer is no, this is not a committee for removal… but to find the veracity, then I am afraid it is complicated. But you will answer that question for yourself.

Chairperson: We have covered that ground in the morning.

Adv Mpofu: Yes, we have. I just wanted to clarify that. It might be simple for him but not for us, as students of the Constitution. Yes, Hon Mulder, I agree, it is normal practice. It is like I am saying that the Chief Justice must not greet the President. I am sure they write to each other all the time. The question is, in each particular instance, is it a lawful interaction or not? You cannot say ‘no’, because it happened last week, therefore, they must do anything [nothing]. And I think that is really the point that gets missed. And it is linked to your first point. Believe me, if anything I have said here today gives you the impression that I am saying that the President does not have the power to suspend, then I apologise. The President is the ordained suspending authority in the Constitution. There is no doubt about that. We are asking you a different question, whether in this instance, did he exercise that power lawfully? Because if you exercise it prematurely, it is, what is called, ultra vires. If the court says Hon Mulder you may suspend Mpofu but you must do it on a Tuesday…that is what the Constitution says. So, if you do it on a Thursday, it does not mean you do not have that power but you have done it ultra vires. You have breached the Constitution, because the Constitution says you must do it on a Tuesday and you do it on a Thursday. But I am not questioning your authority, let us be clear. The President is the suspending authority; he has just exceeded his powers, as we say as lawyers, because the Constitution tells you, you can only do it after the start of the proceedings for the removal and not on any day that you want. When it suits you and you just wake up and say ‘let us suspend the Public Protector’. It does not work like that, Hon Mileham. I promise you I will not say this again, as it sounds like I am being repetitive. The fairness, Hon Mileham, your duty to fairness to the Public Protector extends to the fact that she may or may not have been illegally suspended. Let me simplify it like this, let us assume we came here and say the Public Protector wanted access to a certain witness so that she can defend herself in this Committee. And somebody said, ‘No, you are not going to talk to this witness, otherwise, we are gonna kill you’. I am exaggerating for effect. Then it does not make you the murder and robbery squad. But we have the right to come here and say the process that you are about to embark on is going to be unfair, because the Public Protector has been denied the normal right of access to a document or a witness or whatever. When we speak about the unfair suspension, we say it only insofar as it relates to this process. As I said, because of the suspension, she has not been having access to her computer. These cases, some of them happened in 2015, or whatever. She might think, ‘Oh, I sent an email to Mr Tshabalala, which will make it very clear that I did not overreach myself on the CIEX matter’, let us say. But if she cannot access her computer to bring that witness here, then it affects the fairness of your process. Not because you are involved or have anything to do with that blockage, but it has a serious impact on your own process. Follow-up?

Mr Mileham: Were there specific incidents you are referring to? And if so, did you make a request for specific information?

Adv Mpofu: No, no. I am sorry. That is just an example. It is a bigger point than specific information. Let me put it like this: why is Adv Mkhwebane suspended? Why? Why? Why, because a suspension in law is to make sure that you do not interfere with an investigation or that you…and then you must be given a hearing if it is a serious matter or victimise potential witnesses. Okay? You do not sommer suspend someone just because you can. These charges, we all know, bar COVID, were first put on the 6 December 2019. She has been sitting in that office until last month. Has the sky fallen? No. The only thing that happened in those two years was that she produced two clean audits. Right? That is not your baby; it goes to the issue of mail. But you have to ask yourself, if you are a fair-minded person, what was this rush that she had to be suspended on the 9th, long before the court case even came out? 12 hours? Please. Just wait for 12 hours for the courts to pronounce, having waited for two years. She has not killed anybody in the Office. The only reason was to humiliate her, and to attack her dignity and to make sure that she is deprived of legal representation so that she can be burned at the stake and lynched by the lynch mob that is after her. That is all. So that is the point. It is not about a document here or a document there. It is about asking yourself why she was suspended?

Your next question was person versus institution. Hon Member, I do not want to be obtuse about these things. These are serious matters. When I say this, I am not saying by any means. That is why I referred Hon Mulder to Section 5. I know, it is like the President, there is something called the Presidency. Okay, that is the Office. Then there is the President, the person. Similarly, you will see there is an affidavit which we submitted last week about this whole thing about legal representation. And we say there is something called PPSA, right? Public Protector South Africa. You will not find anything like that here. It was a convenience created by her predecessors to try and distinguish the institution from the person. Good thing. And that is the confusion, for example, that is being peddled by some people to say that the Public Protector of South Africa is withdrawing as an applicant in her application. The Public Protector of South Africa is not an applicant, you cannot withdraw from an application. The applicant is the Public Protector of South Africa. There is only one person, and that is Adv Mkhwebane, who is the Public Protector. That is why the President of this country, the one who suspended her, to make it clear, when he writes to her, he says ‘Dear Public Protector’. Now, when you address her, you say Public Protector, because she is the Public Protector. There is no other Public Protector. Okay. And this notion, then, again, it says, what are we doing here? If indeed, she has been removed by the people who say so, then why are we here? Because she is not the Public Protector. She does not have a right to challenge anything. But it is that confusion, Hon Member. It is a very delicate issue. So the institution, yes, it is an institution. But as I say, when you almost have to play it on yourself, as to what we are dealing with now. When Justice Mogoeng said she must be, she, meaning, Adv Madonsela at the time. He was using those words interchangeably with the institution. So he was saying she must be protected in terms of section 181. But the word she, in that sense, meant both the person and the institution. And that is what I meant by inseparable. All those gymnastics out there in the public domain to try and distil the Public Protector from Adv Mkhwebane is just a waste of time, quite frankly – and breath. Even Section 1 of the Public Protector Act says the Public Protector is a person who does this and the other. The other section which was repealed, said she has the right, like any other employee. Section 9 of the Public Protector Act says that, like judges, she 'must not be insulted, otherwise you will be guilty of contempt’, and so on. Now, that section does not mean you must not come and say I am insulting the Office of the Public Protector. No, you must not insult the person, just like a judge or a Chief Justice. It is an office but there is also a person. So those two things are legally speaking, inseparable, but conceptually separable because the one is a juristic person, while the other one is a human being.

Chairperson: Thank you. Are you done?

Adv Mpofu: Sorry, I think there is just one more. Oh, it was Hon Gondwe. Sorry Chair. Before I come to Hon Gondwe. The issue of responsibility. See, there are three things that are always confused: liability, responsibility, accountability. Of course, the Public Protector, as I said, I am saying this for the second time, the buck stops with her. Just as the President, the buck stops with him. But you cannot really say that you are going to impeach the President because a certain Minister robbed the bank. Okay? Which probably happened. It is a crime that everyone accepts to be a crime. But having said that, you can maybe impeach a President for not firing the bank robber. Those are two different things. You accept that the buck stops with that person but you are not going to find them guilty. That was the point that Hon Hendricks was trying to make. You cannot then hold them for something that somebody else did down there – who reports to them admittedly – until you can create that link. So if you say for example, I am an investigator and I was investigating his malfeasance. And I found that he did this and that, and I gave it to the Public Protector, who then said ‘No, no. That person is my friend’. Then you can say even though it was done by the investigator, she is responsible. We must distinguish between those different issues. Hon Gondwe, I have also answered your issue of the person versus institution but the second question was about the tweeters' favourite issue: ‘What does it matter that she is suspended because the so-called Office continues and so does the investigation’, so says the President as well, by the way, even in his suspension letter. No, it does not work like that. Forget about what is going to happen next. The conflict is at the level at the point of suspension. Can you suspend a person who is investigating you? Okay. That does not mean you are a bad person, maybe the person deserves the suspension. Maybe the person has killed a million people, so they must be suspended. Fine. But are you as the person who is being investigated by this person, supposed to be the suspending authority? The President of South Africa, Madam, said in an affidavit under oath, sworn to God, when we did the first case, that he is conflicted, or potentially conflicted in the Bosasa matter. And therefore if 194(3)(a) had come to be invoked while the Bosasa matter was in place, he was going to delegate that to another Member of the Cabinet. Section 90(1) of the Constitution says whenever the President is unable to perform his duties, he must delegate to the following hierarchy: the Deputy President, a Minister appointed by him, the Speaker. So that is what he was going to do. For a person who said…

Chairperson: I hope you will wrap up. We did cover this ground in the morning. Please.

Adv Mpofu: I am sorry, I am. The Hon Member, I think, raised an important aspect of it. Thank you Chair, if you indulge me, what I am saying is that the President, having accepted that, said in those papers correctly, it is what lawyers call confession and avoidance. He said, ‘by doing this, by that delegation, I am not accepting that I am conflicted in fact’, which is good. But I am saying in terms of Section 96(2)(b), the integrity of the Office of the President would disallow me from suspending her. That was in respect of one investigation [referring to former President Zuma]. Now we have six. Okay. So you cannot say whether someone else… In fact, it might have even been worse for the President if I was the Deputy Public Protector. He probably would have preferred to have Adv Mkhwebane, maybe I was going to do worse than that. But that is not the question.

Chairperson: Thank you Adv Mpofu.

Adv Mpofu: The point I am making is that firstly, people differ. We know, for example, now, there is a hullabaloo about the President having been given an extension to answer the Phala Phala questions. Would Adv Mkhwebane have given him the extension? Maybe. I do not know.

Chairperson: Adv Mpofu, thank you. Thank you Adv Mpofu. I have no intentions to break your flow.

Adv Mpofu: Well, you have broken it anyway.

Chairperson: The ground is well-covered. Hon Members, I just want to, in doing the summary, touch on three areas. The first is, what I call, the factual journey of this Committee. In case we do not all remember. This Committee was established on 20 July 2021. That is when I got elected as a Chair of this Committee. On 28 July, this Committee adopts a programme. A day or two thereafter, the Western Cape High Court delivers a judgment in which it ruled that there is a defect on legal representation, as well as the judge. That is our journey. We paused, and I called it a long pause. And we resolved that the Speaker will oppose the matter, in fact, appeal. And in which case, the Speaker appealed, at the same time, at both the SCA and the Constitutional Court. The Constitutional Court delivers a judgment on 4 February 2022. Mark the journey. It delivered the judgment in 2022. This Committee met on 22 February 2022. In that meeting, having been taken through the actual outcome of that Constitutional Court judgment, we in the same meeting, Adv Mpofu, did two things: Adopt the Terms of Reference and Mileham complained about us calling it a ‘living document’. In the same meeting, permission was given for the appointment of evidence leaders. This was 22 February 2022. This is the journey of this Committee. On 10 March 2022, twelve days later, the Speaker writes a letter to the President – that is the Speaker's role – that the Committee met on 22 February and resumed its work, in line with a directive and the judgment of the Constitutional Court, the highest court in the land. So we resumed and we started our work. That is on record and there should not be any dispute about that. On 17 March as Adv Mpofu referred to, the President wrote a letter to the Public Protector, which is his constitutional role to do. It has nothing to do with us as this Section 194 Committee. Section 194 is pretty clear on who does what. And since then, every time we ask when the Committee will meet again. When it meets it re-emphasises the point that this is a suspension which has nothing to do with what we do. We have a constitutional role to play as a Committee of the National Assembly. And our task has been very clear from the beginning.

The 29 March meeting dealt with quite a number of other issues. That is not where we are. We appointed the evidence leaders. This is our record. I want to leave that factual journey of this Committee because it is a journey that we record in court everywhere else. Well, people can have different views about what they understand. Those of us who have been here, and there are 36 of us, from all 14 parties, in this National Assembly, who are part of this – and I happen to be the Chair of this Committee. I think it is the right of the Public Protector, as we respected, when she exercised her right, in every way when she felt aggrieved and went to court. A day after we adopted our programme on 28 July, the Western Cape High Court delivered the judgment. We had no reason to question the timing of it; why it had delivered its judgment after we had met. It is a judicial role. That is the date. That is the timeline. That is their space.

So that is the first point I thought I must make and indicate here, colleagues. All that we do, instructed, directed, is in line with Section 194. Because we exist in terms of that constitutional clause, nothing else. Otherwise we would have been called an ad-hoc committee. We're not an ad-hoc committee. We are a Section 194 Committee for very definite reasons. That is why we are this Committee. The second point, colleagues, I want to make, is about the directives. In my inputs I reminded Members that in our last Committee meeting, I asked for draft directives to prepare to govern the appearance of persons before the Committee. That was done in the Committee. And I reported back that has been done. I was informed that the Public Protector Legal Team wanted to address us on this– which they did, thanks to Adv Dali Mpofu. In fact he started by saying that they agree in principle with the draft directives but obviously there are certain areas that they want to register.

So before we issue them, we need to listen to that. They have done that in this meeting, in our presence here. Adv Dali Mpofu took us through those areas where they raised issues. And I would have said in the morning, after that, we would, perhaps overnight, respond to the issues you have raised, in terms of the directives… first thing in the morning. When Thembinkosi sent directives to all of you as drafts, he did indicate that they remain drafts, because we wanted you to have an opportunity in this meeting to listen to what is being raised, and that has been done. Adv Mpofu, we have listened to the specific issues you have raised, with interest, caution and respect. We will be able to, in the morning, indicate on the issues you have raised where we are going with the directives; because that was placed on record and it was raised, we cannot avoid that.

And so, therefore colleagues, the agenda was clear that today was going to be about opening statements and opening remarks. And the day was set out for 10am to 5pm. We are still within that set time. There were reasons. Others did not understand and asked why I am keeping them until 17:00. I won’t mention names, but they did say that. Now you know why; because part of the fairness and rationality I spoke about in the beginning is that we are going to rush no one. We are going to listen to everybody. Even if I think that the issue that this person is raising is immaterial. It is about being fair; it is about being rational and travelling along this particular issue. I noted when Adv Mpofu indicated that they are here but under protest, he did say openly that they will share what they are protesting about. Fairly he did, in terms of the issues of the directives; because the directives are in the purview of this Committee. Matters beyond us, I would have given plenty of time for exchanges. To listen to that. But at the end, as I indicated earlier on, and Adv Mpofu and many Members here reflected on that, is that we are not a suspending body. In our meetings, and I want to repeat the point, in our meetings we would have reiterated the matter, that we see the issue of the suspension, and how it is triggered by our work as part of Section 194. We are not the delegated body to do that. That is the discretion of the President, in terms of Section 194(3)(a). Ours, as I indicated, today, tomorrow and the days to come is marking a new phase of the actual hearing of witnesses. Tomorrow, from 10:00, we will be hearing from the expert witness that you are looking forward to engage. And I can see you have done your homework on the issues you want to engage with. At 10:00 you will deal with those. Overnight, we have work to do, in relation to some of the issues. We also acknowledge, as you even gave us dates about that, very important… that there is still Part B which still has to be dealt with by the Western Cape High Court. We will respect that. That is on 25 and 26 July. That is a process, again, we cannot interfere with, and that process will not interfere with our work. We are doing our work. And so colleagues, having said all of that, I want to thank you for your participation, and your patience today. And declare that the meeting stands adjourned, until tomorrow. I thank you.


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