PP Inquiry day 2: Hassen Ebrahim

Committee on Section 194 Enquiry

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

Video (Part 1)

Video (Part 2)

Video (Part 3)

Motion initiating the Enquiry together with supporting evidence;

Public Protector’s response to the Motion;

Report from the Independent Panel furnished to the NA;

Removal Rules of the NA

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
The Committee for Section 194 Impeachment Inquiry met in a hybrid format with the Chairperson, Public Protector, her defence team and the evidence leaders, as well as a number of Committee Members physically in attendance in Parliament.

The witness, Mr Hassen Ebrahim, is an expert in constitutional development who had been engaged in the development and implementation of the South African Constitution and was involved internationally in constitution development. He led evidence on the role and requirements of a Public Protector within the legal framework of the Constitution and the Public Protector Act. The evidence leader largely allowed the witness to take the Committee through his evidence, referring liberally to his document which was before Members. The evidence leader emphasised certain particularly relevant points. The witness started from the general, being the founding values and the constitutional principles, then focussed on the Chapter Nine Institutions before moving onto the specifics of the Office of the Public Protector. Thereafter, he dealt with the appointment of the Public Protector, standards of conduct and dealing with the personality in the office, and then the removal and conclusions. He concluded his evidence by listing 47 points based on the Constitution, the legislation, and the rules and case law, which was fairly weighty and fairly lengthy but, he hoped, a useful checklist for the Committee to apply its mind.

The advocate leading the defence began by pointing out that the legal qualifications of the witness were gained during exile but were not South African qualifications. The advocate extracted an agreement from the witness that he was not qualified as an expert, although he later stated that he believed he was an expert. The adversarial approach continued throughout cross-examination. The advocate focussed on the suspension of the Public Protector and how there was a unique mix of powers across two arms of state in section 194. He believed that the suspension had affected the Public Protector negatively and debated whether the suspension was legal. The advocate referred extensively to the process for the suspension of the President in section 89 and the Constitutional Court case of the Economic Freedom Fighters and Others v The Speaker (2018). The advocate warned the Committee that he was returning to court on 25 and 26 July to fight the suspension of the Public Protector.

After load shedding, a late afternoon/evening session took place. Cross-examination by the Public Protector's advocate was suspended so Members of the Committee could engage with the expert witness. Members had numerous questions but several of them addressed the question of the legality of the hearing and the stage of the investigation the Committee was currently engaging in. The questions were raised in response to points made earlier by the Public Protector’s legal team.

The Parliamentary Legal Adviser then presented the directives that had been drawn up following consultation with the Public Protector’s legal team in order to guide procedural matters during the inquiry. Members expressed general satisfaction with the directives but the Public Protector’s legal team indicated that they objected to the entire document containing the directives. This was a matter of concern as there had been agreement between the legal teams on the majority of issues and a number of paragraphs had been rewritten to satisfy the defence team. Members raised concern about the continued complaints by the Public Protector about the illegality of the process, that Committee members were biased and that the Public Protector was there under protest. Members indicated that there was no sense of fairness or integrity in that approach and it seemed as if fairness was applicable in one direction only.

The Public Protector’s advocate addressed Members’ questions put to him and repeated his assertion that the process could not be fair if it had triggered the suspension of his client and the disadvantages that came with that action. He stated it gave an appearance that she was guilty and likened it to bringing her to the inquiry in orange overalls, shackled and in leg irons.

Meeting report

Chairperson: Good morning, Honourable Committee members, physically here and in attendance virtually. To all my colleagues, the Public Protector, the team led by Adv Dali Mpofu, the evidence leaders, members of the public and everybody else who is with us joining on the virtual platform, as well as the media. Welcome. This is the second day of the hearings. We wanted to start at 10 am but we decided to wait for the changeover from load shedding so that we do not get destabilized as power had to return at 10 am. Yesterday, I indicated that we were to finalise the issue of the directives, but we will defer that until after the discussion on the expert witness today. We do operate in terms of parliamentary rules. So, in the absence of some of those specific directives, I will be applying those in the meantime. But for today, let me also take this opportunity to welcome as a first witness, Mr Hassen Ebrahim, our expert witness, taking the stand today.

You are welcome, Mr Ebrahim. I am just to get straight to the business of the day. And, having welcomed Mr Ebrahim, I am going to ask you to wait for few minutes because I need to get our Legal Adviser Fatima Ebrahim from Parliament's Constitutional and Legal Services Office to take the witness through the process of taking the oath and doing that from the virtual platform. Fatima, can you hear us? I want to recognize you to lead the witness.

Ms Fatima Ebrahim: Thank you, Chairperson and good morning, Mr Ebrahim. Chairperson, as far as I know, myself and Mr. Ebrahim are not related, but if I could please ask him to give us his full name for the record.

Chairperson: Just switch off your microphones, except for Mr Ebrahim.

Mr Ebrahim: Good morning, Chairperson. Yes. The name is Hassen Ebrahim.

Ms Ebrahim: Thank you, Mr Ebrahim. You have been invited subject to the provisions of Section 16 of the Power, Privileges And Immunities of Parliament and Provincial Legislatures Act 2004 to appear before this Committee as a witness and to answer questions in respect of the Section 194 Committee's inquiry into the removal of the Public Protector, Adv Mkhwebane. Please be informed that by law you are required to answer fully and satisfactorily all the questions normally put to you or to produce any document that you are required to produce in connection with the subject matter of the inquiry, notwithstanding the fact that the answer or document could incriminate you or expose you to criminal or civil proceedings or damages. You are, however, protected in the evidence given under oath or affirmation before a House or Committee may not be used against you in any court or place outside Parliament, except in criminal proceedings concerning a charge of perjury or a charge relating to the evidence or documents required in these proceedings. Please be aware further that in terms of section 72 of the Powers Act, a person who wilfully furnishes a house or committee with information or makes a statement before it, which is false or misleading, commits an offence and is liable to a fine or to imprisonment for a period not exceeding two years. You will not be required to take an oath or affirmation that the evidence you are about to give is truthful. You may choose to take either. Can I please have your preference whether you'd like to take the oath or affirmation?

Mr Ebrahim: I am happy to do so I am happy to take the oath.

Ms Ebrahim: Thank you. If I can ask you to please raise your right hand and repeat after me: I swear that the evidence I shall give shall be the truth, the whole truth and nothing but the truth. So help me God.

Mr Ebrahim: I swear that the evidence I shall give shall be the truth, the whole truth and nothing but truth. So help me God.

Ms Ebrahim: Thank you, Chairperson, the witness is now duly sworn in.

Chairperson: Thank you very much Fatima Ebrahim. Mr Ebrahim, you can switch on the microphone, whichever one is closest to you. I would also like you to raise your voice so that we can hear you properly.

Mr Ebrahim: Thank you very much.

Chairperson: Thank you. Now that you have done that important exercise. I want to invite you to take the stand. Adv Bawa will lead evidence.

Adv Bawa: Good morning, Mr Ebrahim. You deposed to an affidavit in this matter, correct?

Mr Ebrahim: That is correct. Yes.

Adv Bawa: Attached to the affidavit is a report which sets out the legal framework of the Public Protector?

Mr Ebrahim: That is correct.

Adv Bawa: And you did this after you were approached by ourselves as evidence leaders where we requested your assistance in relation to contextualising the Public Protector within the constitutional and legislative framework of South Africa.

Mr Ebrahim: That is correct. Yes.

Adv Bawa: Could you could you tell the committee a little bit about your experience and how you came to be one of the people that could be approached to talk about the Public Protector, and a little bit about your qualifications as well?

Mr Ebrahim: Thank you, Chairperson. My background is fairly basic. I took a degree in Law at the University of Botswana and the University of Edinburgh. And immediately after 1990, I joined the negotiations process in the World Trade Centre (in Johannesburg), at CODESA. I supported the processes in CODESA in the multi-party negotiations process. In 1994, I was elected to the Gauteng parliament, immediately after that, when the Constitutional Assembly was established in 1994, I got involved in the Constitutional Assembly process heading the administration as the executive director. I completed the process in the Constitutional Assembly, and after that worked in the Department of Justice for 10 years, implementing the Constitution. Thereafter, after a few stints in the public sector, I started working internationally on a number of assignments, mainly for the United Nations, in different constitution making processes throughout the world, particularly in developing countries. That is my background and how I come to have some knowledge about the Constitution and the process itself.

Adv Bawa: Thank you, Mr. Chairman. The report, as discussed between myself and you yesterday, you are going to take us through the report, and I will direct you if there are any aspects where I think we would need further clarification or emphasis or particular aspects that Members, in the discussions that ensued yesterday, may be particularly interested in, rather than me asking you a specific question, and we go through the task of you having to answer each one. So, if I could leave it for you to start taking us through the report and if you do not mind, I shall interrupt you as and when required.

Mr Ebrahim: That is perfect.

Adv Bawa: And maybe to start off by saying that in the first section of your report, you very helpfully, set out the founding values and constitutional principles and maybe start at that aspect and how the protections for the Public Protector comes about.

Mr Ebrahim: Chairperson, I think that is very helpful. Thank you very much. I may just say, regarding the structure of the report, I thought it best to highlight the report with clear headings and sub-headings, which will help us in starting from the general, being the founding values and the constitutional principles, then focusing on the Chapter Nine Institutions. And then, moving on to the specifics of the Office of the Public Protector. Thereafter, the appointment of the Public Protector, standards of conduct and dealing with the personality in the office, and then the removal and conclusions. So, you will find that the report is structured in a way in which it will provide some sort of a checklist, hopefully, that will be of benefit and value to the Committee, in applying its mind to whatever its discussions may lead to.

Mr Ebrahim: Chairperson, if I may start off, I think the proper starting point really would be the founding values and, of course, we talk about the supremacy of the Constitution, the rule of law, and the fact that we have a democratic government that is focused on ensuring accountability, responsiveness and openness. And of course, the foundational deals with the separation of powers. I had occasion to look at the submissions made by all political parties in the process of the Constitution-making exercise, and unpacking the separation of powers, what comes across through all political parties is an issue of checks and balances, the importance of emphasizing there be appropriate checks and balances, we will come back to that. Now, what is critical in our Constitution is that the Public Protector is defined as an organ of state as contemplated in Section 239.

Mr Ebrahim: All organs of state are required to do the usual which would be to be loyal to the Constitution of the Republic and its people, but very importantly in this particular instance and to the discussion on hand, is to have respect for the constitutional status, institutions, power and functions of government in other spheres. Of course, also further to that is not to assume any powers or functions, except those conferred only on them by the Constitution, then to exercise the powers and functions in a manner that does not encroach on the geographical functional institutional integrity of government in other spheres. Now, section 195 of the Constitution sets out really what are the basic values of structures in public administration of which the Public Protector is one. I want to specifically hone in on the first two, which is, all of these institutions which are required to apply the basic values and principles of public administration require a high standard of professional ethics that must be promoted and maintained. Secondly, that they must do so in a manner that will be efficient and economic, and an effective use of resources. And these constitutional principles come out of the two certification exercises, once the Constitution was concluded. It is noteworthy that the first certification judgment rejected the constitution for non-compliance with the constitutional principles. In particular, principle 29, which requires that the independence and impartiality of the Public Protector must be provided for and safeguarded by the institution in the interest of maintenance of effective public finance and administration and a high standard of professional ethics. An important part of it was that the court complained that the Public Protector was not granted sufficient protection under the Constitution and therefore rejected it, which meant that the Constitution came back to us in the Constitutional Assembly. We had to reconvene the theme committees and review it and, lo and behold, we corrected that. And that was the second certification exercise, and the Constitutional Court approved its compliance with the constitutional principles. Now very important was that the Constitutional Court noted that the independence and impartiality of the Public Protector would be vital in ensuring effective, accountable and responsible government. The Office guaranteed the investigation of sensitive and potentially embarrassing affairs of government, which was why the Public Protector deserved protection. And that protection meant that the Public Protector could not be removed from office based on the resolution of a simple majority; it needed a higher majority. When it came back to the Constitutional Assembly, after reconvening the theme committees, the Constitutional Assembly took a decision with regard to the two points. Firstly, the Public Protector would be appointed with support of at least 60% so as to ensure a supermajority as well as the removal by a supporting vote of at least two thirds of the National Assembly and that is critical. So that is the broad constitutional framework within which the Office of the Public Protector must be understood and located.

Mr Ebrahim: I did want to make some comment. The South African Constitution is very different to all the previous constitutions drafted as it set best practice which was defined by three major areas: firstly, the Bill of Rights which included socio-economic rights; secondly, the chapter on co-operative governance which is unheard of and unseen in other considered comparative constitutions; and thirdly, very importantly, are the Chapter Nine Institutions. No other constitution previously had a chapter which required the support of constitutional democracy. Now what happened in constitutions until our constitution was adopted, was that constitutions were regarded merely as rules of government. What our constitution did, which was novel, was to start looking at constitutional democracy as something that is alive rather than static rules. So, it brought the process of government alive. And very important in bringing that alive were these three aspects, specifically, socio-economic rights, cooperative governance, which required that interaction with government, as well as the Chapter Nine Institutions. What happened effectively is that the South African Constitution redefined the way in which we look at constitutional democracy internationally, and that has a major implication for us because it also means that when we look at the understanding the institutions, we do not look at international jurisprudence or international best practice, because we are the best practice. And that is of critical importance. The Constitutional Court says very clearly that the Public Protector is required to play an oversight role over government to enhance accountability and to contribute to the constitutional project of transformation. Now, that is really critical and that comes from one of the cases (see document). Each of the institutions in Chapter Nine is guaranteed independence; it is required to be impartial and, fundamentally, must be assisted and protected by all the other organs of state. At a later point, I would unpack the concept of independence a little further and to say that the last point of critical importance is that the Public Protector and all other Chapter Nine Institutions are accountable to the National Assembly, which means that National Assembly has full authority to conduct oversight over these Chapter Nine Institutions. What is really important is that there are four critical values that come throughout in all the discussions and jurisprudence on Chapter Nine Institutions. And the four critical values will be independence, impartiality, dignity, and effectiveness. Those are critical and resonate throughout. And in the second certification, it was said that these institutions perform sensitive functions which require their independence and impartiality to be beyond question, and to be protected by stringent provisions in the Constitution.

Mr Ebrahim: I move over now to focus on the Office of the Public Protector. Historically, the concept originated with the concept of an ombud, rather than a Public Protector. And it was a Swedish parliament that established the idea of an ombud in 1809. However, if you look at the Dlamini article because it sets out the history around the South African approach to protecting but clearly, it was only in 1979, that the Adv General, or Southern African version of the ombud was established. And that took place after the ‘Info Scandal’, and government felt it was important to have a body like that but the body, called the Advocate-General, was limited to purely financial misconduct and dealing with public money in an honest manner. It is only in 1979 in South African jurisprudence that you find the idea of an ombud coming through in the form of the Advocate-General. In 1991, the Advocate-General was then replaced by the Office of the Ombud. It is very interesting to see in the submissions that came through to the Constitutional Assembly, what the last ombudsman before the Office of the Public Protector was established said about the establishment of the Public Protector's Office.

Mr Ebrahim: The establishment of the Office was an important aspect of our history in the advent of democracy. In the first certification judgment, the Constitution Court explained that the purpose of the Office of the Public Protector is to ensure that there is an effective public service, which maintains a high standard of professional ethics, which in itself was a major departure from previous concept of ombud, which signifies that what we have in the Public Protector is not what the rest of the world had in the ombud, because it is a totally different institution because it was alive. What we will see throughout the discussion is the Public Protector is one of the most important constitutional citizens as such, with an extremely high status and with a great responsibility, and also generates a great deal of expectation. The rest of my input will dwell on that in greater detail.

Now, let me go to the functions of the Office itself, because it really helps distinguish it from the ordinary ombud. The first and most important function in terms of section 182 of the Constitution, is that the Public Protector is required to investigate any conduct in state affairs, or in public administration, in any sphere of government that is alleged or suspected to be improper, which means that it could be either on the basis of a complaint or on the basis of own initiative, the Public Protector will be allowed to investigate conduct. Secondly, and this is the only part which is a duplicate of the old concept of an ombud is to report on the investigations. But thirdly, the Public Protector is required to take appropriate remedial action, which is quite a novel constitutional concept, and a very important power. The Public Protector’s further powers, which will be set out in the legislation, added to what is in the Constitution. There are only two limitations, and the first is that the Public Protector is precluded from investigating court decisions. Secondly, and it really relates to the time period, the Public Protector is precluded from investigating matters beyond two years unless it is under very specific conditions. So those are only two limitations imposed. An added point, which is fundamental to the conceptualisation of the Public Protector, is that the Public Protector must be accessible to all persons and communities in the country. And that accessibility really has manifested itself specifically in the form of outreach, and the way in which a Public Protector has considered outreach by reaching out and making itself and its institutions, or support and services, accessible to the broad public. Secondly, besides the Dlamini article, there is also the work that has been put together by Bishop and Woolman and there is a very interesting and useful quotation from Bishop and Woolman, which I think will be of value to this Committee. And if you will allow me just to read very briefly, it says:

The Public Protector’s purpose is profitably compared with the role of the judiciary. Courts handle discrete disputes about law and conduct. They rely on correct procedure and solid, sometimes intricate, legal argument. Courts are simply not designed to handle the large number of complaints that arise from simple misunderstandings or bureaucratic red-tape, nor do they lend themselves to the resolution of injustices that turn more on unfairness than illegality.

The Public Protector occupies a middle space in the politico-constitutional landscape. It serves the public and assists the courts and the legislature. It assists the courts by addressing those complaints about the administration of justice that fall beyond the court’s purview. It assists the legislature by monitoring the performance of the executive and answering those complaints that elected representatives are unable to address.’ (Ebrahim, H p 10)

 the Public Protector fulfils an incredibly important role.

Mr Ebrahim: Let me move on to the competencies of service. Now, the first part is that under section 4 of the Public Protector Act, which is based on section 182 of the Constitution, and states that the Public Protector shall be competent, firstly, to investigate on his or her own initiative, on receipt of a complaint, which means for monitoring and outreach and all complaints received, it will investigate any alleged maladministration, abuse or unjustified exercise of power, or unfair capricious, discourteous or other improper conduct or undue delay by a person performing public function functions, improper and unjust omission or offences, improper or unlawful enrichment. And also, it will investigate acts or omissions by persons in the employ of government, which may result in unlawful or improper prejudice to any other person. So, it is an extremely wide set of powers. In addition, the Public Protector is competent to endeavour, in his or her own sole discretion, to resolve any dispute. And this is where the powers are so wide, because it goes well beyond that of an ombud, because it has the power to resolve matters by mediation, conciliation or negotiation, unheard of before and certainly novel in our own institution. Also, to advise when necessary, any complaint regarding appropriate remedies. So, if there is a criminal offence, or any other matter, the Public Protector would advise such person to seek other possible remedies or opportunities.

Very importantly, the Public Protector has the ability power to pursue mediation or negotiation, advising the complainant of any further remedies that are available, and or report a criminal offence to the authorities, to report the matter to another public authority, and to resolve the issue through any other means that may be expedient in the circumstances. In effect, the Public Protector becomes a problem solver, not just providing a report or taking remedial action, it goes beyond, trying to find solutions to the issues. Importantly, the Public Protector has further powers not just with regard to institutions of state, but particularly also public entities and state-owned corporations. So, it goes beyond and that is why all of the recent state capture and other reports and investigations were conducted. As such, the Public Protector is bestowed with really extensive powers of oversight. Now in previous constitutions, that oversight was really between the three branches of government. For the first time the Chapter Nine Institutions, particularly the Public Protector, has this extensive power of oversight.

Mr Ebrahim: I want to touch on the issue of the limitation of the Public Protector with regard to the two year limit. It is important that with all the powers that it has, the Public Protector can only investigate matters within two years from the occurrence of the incident. This was dealt with in a number of court matters until the High Court found that if a matter outside of the two year period is to be accepted, the Public Protector must identify special circumstances justifying the consideration of matters relating back more than two years.

Adv Bawa: Mr Ebrahim, if I can interrupt you there. That is the wording of section 69 of the Public Protector Act that sets that limitation, is that correct?

Mr Ebrahim: Yes, thank you very much. And according to the High Court, the law is very clear the Public Protector cannot have matters introduced ex post facto by third parties relating to matters extending more than two years. And very importantly, for example, the Public Protector cannot cite persistent prejudice to a complaint or section 195 of the Constitution to justify investigating conduct that occurred more than two years earlier. That is very important. So, the Office of the Public Protector offers aggrieved members of the public a mechanism through which to address the complaints about the exercise of public power. The requirements for reporting a complaint to the Public Protector in terms of the Act is fairly undemanding. And the important part of it is that the Public Protector personnel are obliged to render necessary assistance, free of charge, to enable any person complying with the reporting requirements, which means that the Public Protector is required to make itself accessible, and help any member of the public that wishes to bring a matter.

At the same time, the Office is also markedly different from a court. It does not follow formal procedure. There is no formal procedure that binds the Public Protector, and its personnel but they are obliged to assist aggrieved persons to report any complaints. And it is concerned with impropriety and prejudice, rather than limited to questions of lawfulness and is aimed at being far more accessible to ordinary citizens. So, in the submissions made by the last ombud, to the Constitutional Assembly that was a point raised specifically, that the drafting suggested that it would deal with impropriety and prejudice, which was much broader than they were used to, suggesting that the Public Protector went well beyond what was previously considered necessary. Chairperson, I want to go on to the core principles. One of the early cases was the SABC case, which helped us in identifying some of the core principles. There is a wonderful quotation from the court which says that: The office serves to ‘watch the watchers and to guarantee that the government discharges its responsibilities without fear, favour or prejudice. (See Ebrahim, H p16)

And that is critical, and helps a great deal. Effectively, what the court said is that it would be the last defence against bureaucratic oppression, corruption, and malfeasance in public office, which is fairly crisp and is very precise. The Public Protector is not subject to the control of the national executive and is independent from the sphere of government offices and is really and effectively outside of government. What is really important is the definition of the Public Protector being outside of government. Very critically, the Public Protector cannot be seen to be either for or against government. It is really independent. It has an independent authority and foundation based in the Constitution itself. Now in my home, I have many children and grandchildren who talk a lot about superheroes, and maybe, constitutionally, the Public Protector is one. And I shall talk a little bit about that.

Chairperson: Do you mean the Office or the person in the Office?

Mr Ebrahim: I refer to the Office. The Public Protector has a vast array of measures available to take remedial action in response to maladministration and corruption. Essentially, my children and grandchildren grew up with this idea of superheroes being able to solve all problems and deal with all sorts of difficulties. And this is what it is really about: the Public Protector occupies a unique position in our constitutional order. And that is really very important, because the office is neither a court nor a state decision maker. The Public Protector cannot realise the constitutional purpose of office if other organs of state second guess her findings or ignore her recommendations. Accordingly, the Public Protector may determine an effective remedy for state misconduct, direct its implementation, define its decisions, and remedial action of the public sector may not be ignored, and must, if disputed, be challenged with judicial review. It is paramount, when it is necessary, that people comply with the remedial orders issued. We have a very interesting case, a very important case, of the Economic Freedom Fighters, which I refer to as the 2016 case.

Adv Bawa: Mr Ebrahim, if we can if we can just pause there. Although in your report, it is referred to as the 2016 case, it is the same case which my learned friend, Adv Mpofu, referred to yesterday as the EFF case.

Mr Ebrahim: That is correct. The Constitutional Court reached very important conclusions in that case. It said that: The Public Protector is ‘pivotal to the facilitation of good governance in our constitutional dispensation’, such that ‘the Constitution guarantees the independence, impartiality, dignity and effectiveness of this institution as indispensable requirements for the proper execution of its mandate. The obligation to keep alive these essential requirements for functionality and the necessary impact is placed on organs of state.’ (Ebrahim, H p17). Independence, impartiality, dignity, and effectiveness of the institution are four important concepts that are critically important.

The name of the office was carefully selected, in fact, it was a very inspired decision, and I remember very clearly how that came about. In that debate in the Constitutional Assembly, people felt that we should be talking about a public protector, primarily, because most of the Constitution makers at that time had experiences which suggested that one had to be cautious about the administration of government. It required a public protector who would protect people who are maybe aggrieved of any service that may be inappropriate, and from which the public needed protection. That is how the concept of a Public Protector came about and it really inspired the world. And throughout the world, wherever I have travelled, most of my colleagues are inspired by this concept, and it has resonated with a number of jurisdictions where people have replicated this concept in their own constitution making processes.

The Office of the Public Protector has wide and constitutionally crucial powers. And, again, in that case, there is a wonderful quotation which says that the Public Protector is just one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice, and impropriety in state affairs and for the betterment of good government. Going further on in that quotation it says that the Constitution makers, or the fathers and mothers of the Constitution, conceived of a way to give even the poor and marginalised a voice and a way to fight corruption and abuse. Further on in the quotation, it also says that our constitutional democracy can only be truly strengthened when there is zero tolerance for the culture of impunity. Now, in order for the Public Protector to be effective, complying with the remedial action order cannot be optional. And therefore, the only alternative to immediate action in accordance with the order is judicial review. It would be at odds with the rule of law for the subject of an investigation to determine whether to comply with Public Protector’s report or not. It is really obligatory. It is binding if framed in the peremptory manner and must be implemented as directed. The Public Protector’s power is a central component of the constitutional architecture designed to give effect to the Constitution's founding values. But very important is that with this great power, as you will see later in the discussion, there are also great responsibilities and expectations. Moreover, it is essential that the public who the Public Protector is meant to serve respects the Office of the Public Protector, and that the Public Protector is in every way above reproach. What happens is that, as a constitutional citizen, the Public Protector is elevated to an extremely high level and given great powers, but with this great responsibility and one of the fundamental responsibilities is that the Public Protector is required to inspire confidence in the way in which it carries out its conduct and its activities.

Mr Ebrahim: I proceed now, Mr Chairperson, to deal with appointment of the Public Protector and the first point I want to deal with is the higher threshold. The Public Protector is appointed by the President on the recommendation of the National Assembly for one renewable term of seven years. The recommendation of National Assembly must be supported by at least 60%, which means that it is not just a simple majority. The appointment of the Public Protector is also materially different from the appointment of judicial officers, which is quite critical. And very important in the requirements of the Public Protector is a term that is used generally in constitutions, both in ours and others, the concept of ‘a fit and proper person’ to hold that particular office. And that deserves some understanding, because the Constitution itself does not define what fit and proper really means.

What happened in the Reserve Bank case, was that it merely stated that the Office requires high standards and that was vague and very general. Section 1 of the Public Protector Act stipulates more detailed requirements that an individual must meet in order to be eligible for the Office. Fundamentally, either a judge or an advocate or attorney or somebody who is qualified with significant legal experience and there has to be ten years of experience in the legal field, thus requiring a person who is to be appointed as a Public Protector, to have significant legal experience and expertise in the area of law or public administration. Furthermore, constitutional and statutory requirements obviously suggest that the incumbent must be somebody who is beyond reproach and a person of stature and suitably qualified and this is what we can gather from the requirements that are set out.

Mr Ebrahim: Chairperson, I want to go into more detail on the objective of the concept of fit and proper because what happened in our jurisprudence and in discussion is that it is not just basically a fit and proper person as in an attorney or advocate that is appointed to the bar. In the instance of the Public Protector, there is an objective 'fit and proper' concept that comes through. Now, this came through in the National Director of Public Prosecutions (NDPP) case. The Constitutional Court was concerned with whether a particular individual was appropriately qualified for the Office of the NDDP and therefore, they had to look at the concept of what was meant by 'fit and proper' as required by legislation. Although the President appoints the NDPP, the Constitution requires Parliament to determine the details of the NDPP’s qualifications and, in order for both to discharge their respective functions, the prescribed qualifications must be objective. This means that it cannot be simply in the President's view that the person is fit and proper. That view must be supported by Parliament. It stipulates that the NDPP must be fit and proper in a broader sense, and it must be an objective requirement rather than a subjective understanding. And very importantly, if a new president was to assume office, that person could not come to a different view; it had to be an objective standard.

What is evident from the legislation, is that the purpose in giving the President the power to appoint the NDPP is to ensure that the incumbent, and this is very important, is sufficiently conscientious, and thus, enhances the integrity required to be entrusted with the responsibilities of the Office. That is a very useful way in which to view this. Any evidence regarding the incumbent’s credibility, honesty, integrity and conscientiousness, would be relevant and material to the exercise of that power. And fundamentally, what is very clear is that dishonesty is dishonesty. So, if there is dishonesty, wherever it occurs, it is fundamental and it is fatal as it would impact on the credibility, honesty, integrity and conscientiousness required. So, dishonesty is of a critically fateful nature.

Let me deal with the characteristics of improper because we are aided and assisted by a whole host of jurisprudence, that helps us identify…

Adv Bawa: Mr Ebrahim, I am sorry to interrupt you but you have skipped through 48.4, which was a conclusion you reached, that is, simply applying the same principles in the NDPP case to the requirements of the Public Protector.

Mr Ebrahim: Absolutely! The case law in this particular case, the NDPP case, in which the court had to apply its mind to what is fit and proper, clearly applies also to the Public Protector.

Let me deal with the characteristics of what is fit and proper. It is basically a threshold requirement for anyone requiring admission as a legal practitioner. Jurisprudence establishes the following: firstly, is the objective finding of fact. The requirement that the practitioner be fit and proper is closely linked to the overarching need to protect the public by ensuring that it is not exposed to a person who should not be in practice. And that is very important. Secondly, one requirement of fitness and propriety for legal practitioners is that of absolute honesty. Even this honesty outside the courtroom, or in respect of a relatively trifling matter, can render an individual unfit and improper. So, any form of dishonesty under oath can render an individual improper in respect of fitness and propriety; therefore the demand is for absolute integrity and scrupulous honesty. I shall touch on that a little later as well – the question of honesty and integrity. The other requirement is that of reliability in utmost good faith in dealing with court. I quote the judgment in the Swain case. It says very clearly:

‘[T]he professions of advocate and attorney require the utmost good faith from all practitioners and aspirant practitioners; in my opinion, the applicant’s failure to disclose material facts in the circumstances of the present case was a failure to show such good faith… it is of vital importance that when the Court seeks an assurance from an Adv that a certain set of facts exists the Court will be able to rely implicitly on any assurance that may be given. The same standard is required in relations between advocates and between advocates and attorneys. The proper administration of justice could not easily survive if the professions were not scrupulous of the truth in their dealings with each other and with the Court.’ (Ebrahim, H p26)

And the court goes on in describing further what good faith means, and so on. Now, practitioners must not be allowed to exploit loopholes to suit their own interests or to show disregard for the law. And that is fundamental, which is why advocates are subject to this overarching duty not to mislead. They must not mistake facts or knowingly conceal the truth on the charges without supporting evidence. They must disclose all the legal authority, even those that are against them, and must disclose relevant documents. It must be total disclosure. The judge is entitled to take counsel at their word. If counsel says this is the law on the matter, the judge should be allowed to accept that it is the full truth without wondering whether there were cases that were contradictory. Practitioners also have a duty to remain abreast of the law and legal developments and to ensure that legal submissions are accurate. So, care must be taken that this does not occur through ignorance or negligence. And when an argument is advanced, and authority cited, there is a tacit representation by counsel that no contradictory authority is known to them. So, it is very important, the obligation that is placed on a counsel before court.

The norms regarding fitness and propriety for legal practitioners are a useful guide in determining, at minimum, what renders an individual fit and proper for the Office of Public Protector, particularly given the similarities between activities they are required to conduct. In this regard, a fit and proper individual must demonstrate absolute personal integrity, scrupulous honesty, must always be reliable, and show good faith, must demonstrate proper knowledge of and regard for the law must not mis-state facts, conceal the truth or make unsubstantiated allegations; and must disclose all relevant evidence in the appropriate forum. It is a very onerous responsibility obligation and it is very clear that that responsibility and obligation would not only apply to a legal professional appearing in court but also to the Public Protector itself.

Mr Ebrahim: However, the general standards for fitness and propriety for legal practitioners, are really lower than the standards required of senior constitutional office bearers. And this is a fundamental point because the Constitution establishes a number of constitutional office bearers, and the Public Protector is one of them, and those requirements, are much more onerous than those of an ordinary legal officer appearing before a court. So constitutional office bearers may be removed for conduct, such as legally incompetent, even if that legal competence would not be sufficient to render the individual unfit and improper to practice as an attorney or advocate generally. So, it is very important that there is a higher standard that is really required. And again that, Chairperson, comes from the fairly interesting Jiba case, which helped to explain the concept of constitutional office and the requirements of constitutional office. Given the Public Protector’s high constitutional status and the role in ensuring clean and honest governance, the principle must apply with even greater intensity to any incumbent who should ensure throughout the tenure, and at all material times, that the Public Protector must, at the very least, meet constitutional requirements of being fit and proper as an objective requirement. Fitness and propriety must determine the basis on the required institutional competency, as well as constitutional obligations the individual will be required to discharge.

Chairperson, I just want to highlight the two concepts that come through here because it is repeated elsewhere. It is a concept of institutional competence and constitutional obligations. Those come through and resonate further on in the discussions as well. So the Public Protector must be beyond reproach, a person of stature and suitably qualified, acting with dedication and capable of maintaining high standards, sufficiently conscientious and have the integrity to require them to be entrusted with the responsibilities of the Office of the Public Protector, and to discharge the substantial constitutional duties or obligations, must exercise powers and functions with actual and demonstrable independence, impartiality, dignity, and effectiveness, as well as the ability to discharge sentence functions, irrespective of whether or not it may antagonise any powerful, or other, functionaries. And do so without any indications of dishonesty, incompetence, and partiality of all of which are incompatible with an office that is aimed at ensuring clean and accountable governance; discharge all responsibilities honestly, independently and ensure a fair administration of the Office of the Public Protector. And in the work done by the Office of the Public Protector, must maintain credibility, scrupulous honesty, personal integrity, and conscientiousness – again those four or five concepts that come through repeatedly; must maintain reliability and utmost good faith in all dealings, including in its dealings with court, and in every other aspect, openness and transparency should permeate the workings of this Office save in very exceptional circumstances. And even in any litigation, must at all times, operate in utmost good faith and be scrupulous in all its dealings, be it in relation to complaints, the subject matter of the complaint, or persons implicated in investigations and support. In relation to the latter, the same scrutiny facing practitioners when in a court of law should lie with the Public Protector, especially such bears the mantle of being a qualified legal practitioner and must remain abreast of the law and legal developments and ensure that application of the law is accurate, and neither ignorance nor negligence should permeate the work of the Public Protector. At all times a Public Protector was not put personal interest over and above public interest, and not put personal interests above those of the Office of the Public Protector - those are fairly important concepts – and the mandate of such office.

Mr Ebrahim: Chairperson, I move on to the standards of conduct. Very importantly, in the standards of conduct is firstly, dealing with investigations. Through the legislation and the various jurisprudence, the type of investigations or the way in which the conduct of investigations has been clearly defined so, it is important to set this out because the standards of conduct must be clearly set down. Albeit in somewhat different context, the Constitutional Court said the following about determining the proper standard of conduct for a public office bearer. It applies to all public office bearers and this is a contract that is required:

The question of what to constitute improper conduct can be answered with reference to two linked issues. Again, institutional competence and constitutional obligations are repeated again. from an institutional perspective, public officials occupying certain positions would be expected to act in a certain manner because of the expertise and dedication to that position. (Ebrahim, H. p30)

So, the Public Protector may conduct an investigation on own initiative based on complaints or information that come to the Public Protector's attention, but then importantly, the Public Protector may determine the format and the procedure for this investigation. So, unlike a court, the Public Protector can decide how the Public Protector wishes to carry out an investigation and is not obliged to adhere to a specific procedure. Investigation must be conducted without fear of favour, or prejudice to the complaint, and needs to be dealt with in a manner that enhances dignity and with respect to the complaints of whatever nature. Secondly, documentary and evidentiary records are subject to a general rule of non-disclosure. That is fundamental because it also impacts on procedure and may not be disclosed to any other person during the course of any investigation unless the Public Protector determines otherwise.

The next point is also important because it is quite critical in this discussion. The Public Protector must be active when conducting an investigation. She is not entitled to be passive, supine and static in her approach, nor can she fail to address complaints where allegations, without good cause, narrow the scope of investigations to the point that they do not meaningfully address the allegations and prima facie evidence of misconduct and impropriety in office. Essentially, my approach to this is particularly important point in that one follows the money. You look at where the budget is applied, and if you follow the money, you will be able to see to what extent the Public Protector has been active when conducting investigations and what activity there has been. Furthermore, when the Public Protector receives complaints of impropriety or abuse of office, she is obliged to use the powers vested in her to ensure that the complaint is properly and effectively addressed. When an investigation is required, it should be conducted as comprehensively as possible in order to inspire, and these are the important words. The way…the manner in which investigation is conducted must inspire public confidence that the truth has been discovered, that reports are accurate, meaningful and reliable, and that the remedial action that she takes is appropriate. So, this is the concept that emanates from the Constitution itself, that the Public Protector as one of those institutions that strengthens constitutional democracy, requires an active role.

Adv Bawa: Mr Ebrahim, just before you get to procedural fairness - in the section that deals with investigations and the manner in which those investigations have to be conducted. Those are articulated in section 7 of the Public Protector Act?

Mr Ebrahim: Yes, that is correct. Chairperson, to deal with procedural fairness, and this is important, the Public Protector is subject to the statutory requirement to observe procedural fairness, in that if it appears that any person may be adversely affected or detrimental implicated by a finding, that person must be afforded an opportunity to respond. That is fundamental to fairness in all administration of justice matters, and a basic aspect of the way in which procedures are undertaken. So, while the Public Protector is not obliged to have formal procedures, like a court, it has to ensure that its procedures are fair. So, this duty is in section 7(9) of the Public Protector Act which provides as follows:

 If it appears to the Public Protector, during the course of an investigation, any person is being implicated in the matter being investigated, and that such implications may be to the detriment of the person, or that an adverse finding pertaining to that person may result, the Public Protector shall afford such person an opportunity to respond in connection therewith.

That is really what the law states. It is a fairly basic injunction. And furthermore, “Such persons shall be afforded an opportunity to be heard in connection therewith by way of giving evidence.” So, any person that is implicated should be afforded that opportunity.

Furthermore, in the case of Public Protector v President of the Republic of South Africa, the majority judgment of the Constitutional Court, is pretty instructive and forgive me for reading through it, but it is fairly important in that it goes through the matters and lists them; it is fairly direct:

'[123] Whenever an individual is implicated during the course of an investigation, the Public Protector is obliged to afford such person an opportunity to respond to the implicating evidence, if the implication may be detrimental to that person or if a finding adverse to him or her is anticipated. The form or manner of the response depends on the circumstances of each case. For example, if the implication was made in a sworn statement, a response in a sworn statement would suffice.

[124] Where that implication was made in oral testimony, the implicated person would be entitled to adduce controverting evidence before the Public Protector. In addition, that person has a right to question witnesses who gave the relevant testimony. This questioning must be done through the Public Protector. Implicit in this process is that the affected person would be afforded an opportunity to make representations on the relevant evidence. Ordinarily the questions should be put to witnesses in the presence of the affected person or her legal representative.

[125] It cannot be gainsaid that the Public Protector’s investigation may implicate the rights in the Bill of Rights. Consequently, the Public Protector Act in terms of which those investigations are undertaken must be interpreted in a manner, where reasonably possible, that promotes the objects of the Bill of Rights. Section 7(9) declares that if it appears to the Public Protector at any time during the course of an investigation that an adverse finding or a detrimental implication may result, the Public Protector must afford the affected person a hearing. Implicit in the language of section 7(9) is that where it appears that a particular remedial action adverse to the affected person may be taken, the Public Protector should afford that person an opportunity to make representations on the contemplated remedial action. If the section were to be read otherwise, the procedural fairness it guarantees would be seriously undermined. There is no reason in principle or logic that fairness envisaged in the provision should be restricted to findings or implication by evidence. The bigger risk to the affected person’s rights is posed by the remedial action. And section 7(9) should not be given a meaning that is antithetical to the rule of law.

[126] For all these reasons, I conclude that when the Public Protector contemplates taking remedial action against the subject of an investigation, that subject is entitled to an opportunity to make representations on the envisaged remedial action. For a proper opportunity to be given, the Public Protector must sufficiently describe the remedial action in question to enable the affected person to make meaningful representations.

[127] The High Court here held that the Public Protector’s remedial action had serious implications for the President, including being a suspect in a criminal charge that carries a punishment of up to 30 years’ imprisonment. The High Court concluded that the failure to afford the President a hearing before the decision on the remedial action was taken was fatal to the validity of that remedial action. This conclusion too is beyond reproach.

[128] In addition, the President has complained that the e-mails on which the Public Protector relied were not disclosed to him and that he was denied the opportunity to make representations on those e-mails. In his supplementary affidavit, the President stated:
“Furthermore, these e-mails were not raised in the Notice, and first made an appearance in the Report without affording me an opportunity to address them before the Public Protector concluded her investigation.
The mere fact that what could be improperly obtained evidence has been used in the investigation is enough to vitiate the Report.”

[129] In her answering affidavit, the Public Protector does not dispute that the e-mails were not disclosed and that the President was not afforded a hearing on them. She responded in these terms to the relevant allegations:
“It is telling that instead of denying the contents of the e-mail, the President complains about how I obtained the e-mails to which I refer. I receive many documents from anonymous whistleblowers. These e-mails were provided to my Office anonymously and in hard copies. It is for that reason that I have no metadata in respect thereof.
However, even if I knew the identities of whistleblowers, I have an obligation to protect them. What the President has to do is to take this Honourable Court and the country at large into his confidence and explain the contents of these e-mails. I deny that I obtained the e-mails unlawfully.”

[130] While it may be true that the Public Protector had lawfully obtained the e-mails and was entitled to have regard to them during the investigation, she was under a legal duty to disclose them to the President and afford him the opportunity to counter them if he was able to do so or that he makes whatever representations he may have wished to make on the e-mails. It is a basic principle of our law that if a decision-maker is in possession of information that is adverse to the person against whom a decision is imminent, that such information be disclosed to the person concerned and that he or she be given the opportunity to deal with that information. Our jurisprudence shows that a decision based on adverse information which was not disclosed to the affected person and in respect of which that person was not heard, is fatally defective and ought to be set aside.

[131] Here the Public Protector based her crucial findings on the e-mails which were delivered by anonymous persons at her offices, without disclosing them to the President and affording him the opportunity to make representations. Notably, the authenticity of those e-mails was not established. In relying on them in the circumstances of this case, the Public Protector violated the audi principle and her findings, based on the e-mails, must be set aside.'

Chairperson, this is a very longwinded judgment, but I think very, very critical and crisp in really setting out the issues relating to fair procedure.

Adv Bawa: Mr Ebrahim, if I can take you back up to earlier parts of the judgment, because you started off by looking at an interpretation of Section 7(9) of the Public Protector Act, giving an implicated person a hearing. You looked at that in the context of the Constitution, and, most importantly, the Bill of Rights. I want to draw your attention to Section 39(2) of the Constitution. And I want to put the proposition to you that the interpretation is not novel, to the Public Protector Act, but is the way in which all legislation is to be interpreted, subject to Section 39(2) of the Constitution.

Mr Ebrahim: Yes, absolutely.

Adv Bawa: It essentially says when interpreting any legislation, and when developing the common law, customary law, every court, tribunal, forum must promote the spirit and objects of the Bill of Rights. That would apply equally to the Public Protector in the application of Public Protector Act?

Mr Ebrahim: Correct.

Adv Bawa: I do not want to get into details of cases with you, but the application of procedural fairness in upholding the rule of law would look at the provisions of the Bill of Rights.

Mr Ebrahim: Naturally so, yes, thank you.

Chairperson, the Public Protector has wide powers of compulsion and may subpoena any person to give evidence under oath or produce any document or subject themselves to examination. Non-compliance with a subpoena without just cause is a criminal offence. The Public Protector also has the powers of search and seizure. These are weighty and invasive powers afforded the Public Protector and should be exercised with great care, even though these remain subject to the court and the judicial process.

Adv Bawa: If we can just pause there for a moment. Those powers find their home in the provisions of the Public Protector Act. And it is actually the Public Protector that has the power to issue that subpoena. She does not have to go through a court to do that. And that is what makes that power an important power. It is a tool that ensures the Public Protector’s work is not impeded by having to rely on anybody else to subpoena documentation.

Mr Ebrahim: That is correct. Just to touch on the issue of conflict of interest. No person may conduct or assist in an investigation in which he or she has any pecuniary interest, or any other interest which might preclude him or her from performing his or her function in a fair, unbiased and proper manner, unless that person works in government, performs a public function, or is subject to the Public Protector’s jurisdiction and has been requested by the Public Protector to assist with any investigation. I think that is also fairly trite and basic.

The next point is perhaps a little bit more important and very, very useful because it requires what is referred to in the Mail & Guardian case as maintaining an open mind. It is an important requirement imposed on the Public Protector in dealing with all investigations. The Public Protector essentially must maintain an open mind. One feature that is universally indispensable to an investigation of any kind is that the investigation must have been conducted with an open mind. The court had occasion to describe this mind. And I quote, as follows:      

"Such a mind – is one that is open to all possibilities and reflects upon whether the truth has been told. It is not one that is unduly suspicious but it is also not one that is unduly believing. It asks whether the pieces that have been presented fit into place. If at first they do not then it asks questions and seeks out information until they do. It is also not a state of mind that remains static. If the pieces remain out of place after further enquiry then it might progress to being a suspicious mind. And if the pieces still do not fit then it might progress to conviction that there is deceit. How it progresses will vary with the exigencies of the particular case. One question might lead to another, and that question to yet another, and so it might go on. But whatever the state of mind that is finally reached, it must always start out as one that is open and enquiring". (Ebrahim, H p 36)

That is an important quality that is established.

Chairperson, I move on. Even further and more important than just an open mind, is the ethical standards that go with the requirements of the Public Protector’s conduct. I did say earlier that enormous power is vested in the Public Protector, and an enormous responsibility that is associated with this power and part of that is clearly executive ethical standards. So, in the case of the Public Protector and the executive code, the Constitutional Court said the following about the manner in which investigations must be conducted and reported:

"The Public Protector must not misconstrue the law she is required to consider and/or apply and must not change the wording of the legislative instruments that bind the subjects of the investigation.

The Public Protector may not create standards against which those being investigated are measured.

The Public Protector’s constitutional investigation powers are ‘limited to state affairs and affairs of the public administration’.

The Public Protector should not expand an investigation without lawful justification.
There can be serious consequences for those who are investigated by, and considered in the reports of, the Public Protector. Accordingly, there is a duty to act fairly to such persons:…

Whenever an individual is implicated during the course of an investigation, the Public Protector is obliged to afford such person an opportunity to respond to the implicating evidence…

For a proper opportunity to be given, the Public Protector must sufficiently describe the remedial action in question to enable the affected person to make meaningful representations". ( Ebrahim, H pp 33,34)

The Public Protector should only draw conclusions that are supported by evidence. The objective of investigation by the Public Protector is to discover the truth. When the investigation yields disparate pieces of evidence, which do not fit into place, the Public Protector must continue digging until the true picture emerges. Furthermore, the Constitution and relevant legislation require that the Public Protector must conducting proper investigations rightly evaluate the evidence placed before and make findings which are supported by established facts. Fundamentally, Chairperson the Public Protector must not only discover the truth, but inspire confidence. In each investigation, the truth has been discovered. And this is fundamental in the way in the conduct of the Public Protector is to inspire confidence in the public, the people whom the Public Protector is required to serve. The Public Protector’s task is not to investigate criminal offences. Those must be taken up by the police service and of course, that comes from the legislation itself. When deciding upon remedial action, the Public Protector cannot direct an organ of state to do something that is outside of its own powers and cannot be vague directives.

Chairperson, I want to move on to deal with the conduct of litigation because this is quite critical. No member of the Public Protector’s Office is liable in respect of anything reflected in any report, finding, point of view or recommendations made or expressed in good faith and submitted to Parliament or made known in terms of the Public Protector Act or Constitution. However, this exclusion of liability does not extend to personal liability for legal costs. So, a critical part of a judgment was issued by the Constitutional Court. The Constitutional Court concluded that the Public Protector may be held personally liable for costs incurred during litigation if guilty of bad faith or gross negligence in conducting litigation and discharging her constitutional obligations. It is important to weigh the statement that the court made against the vast powers the Public Protector is afforded. So, the Public Protector should always act in good faith, given the high constitutional status of this office. Courts should guard against unwarranted costs. While courts have issued cost orders against the Public Protector, they should do so very cautiously because costs in work-related litigation may have a chilling and deleterious effect on the exercise of her powers. So, you want courts to be cautious in terms of how they exercise this particular order.

When a Public Protector participates in litigation, the Public Protector is subject to heightened standards as a public official. The Public Protector must be accountable and must not mislead or obfuscate, must follow proper procedure, must produce a full record, must be candid and place a full and fair account of the facts. Importantly, the standards flow from the Public Protector’s status as a constitutional citizen. The Constitution directly obliges the Public Protector as an organ of state to assist and protect the courts to ensure the independence, impartiality, dignity, accessibility, and effectiveness of the court.

I want to touch on an aspect which is particularly important because it requires a generally a higher standard than ordinary functionaries set out in the Constitution. Even outside litigation, the Public Protector is subject to higher standards than ordinary persons and ordinary administrators in the discharge of all functions. The failure to perform a function properly and effectively is, therefore, a matter of grave constitutional importance. This is because as a court identified, the proper and effective performance of the functions of the Public Protector is of particularly importance given the constitutional mandate and extraordinary powers that are vested in the Office. When the Public Protector fails to discharge the mandate and duties, the strength of South Africa's constitutional democracy is inevitably compromised and the public is left without the assistance of the Constitution’s guardian. It means that the vital constitutional check against abuses of power is lost. That should weigh heavily on how the Committee applies its mind.

I want now to touch on a fairly extraordinary part of the law. No other constitution citizen is granted the power and authority to be protected against contempt; the Public Protector is virtually the only such constitutional office. In section 9 of the Public Protector Act, the offence of ‘Contempt of Public Protector’ is created.

No person shall –
(a) insult the Public Protector or the Deputy Public Protector;
(b) in connection with an investigation do anything which, if the said investigation had been proceedings in a court of law, would have constituted contempt of court
. (Ebrahim, H. p42)

So, again, enormous powers are given to the Public Protector and including contempt which is not afforded to other constitutional citizens of a high status.

I proceed to the personnel in the Office of the Public Protector because that is important. In order to perform functions, the Public Protector is assisted by the Deputy Public Protector, a Chief Administrative Officer and staff, all of whom are ‘subject to… her directions and control (section 3(1) of the Public Protector Act).

That is very important because the Constitution is silent about the appointment of a Deputy Public Protector. Now essentially what this Act does is a fairly interesting piece of drafting because the Public Protector is in a position almost like a Minister compared to a Director-General. The Public Protector appoints a chief accounting officer but, unlike a Minister and DG where the DG is required to submit to the PFMA, in this particular instance, the law says something different: Chief Administrative Officer and staff, all of whom are ‘subject to… her directions and control’. That is fundamentally different to the other sections of public administration and in the instance of a Minister. Ultimately the Public Protector is accountable for the decisions taken, albeit, the Public Protector is not the accounting officer. The latter answers to the Public Protector in ways beyond that which a DG would account to a minister.

Adv Bawa: In fact, Mr Ebrahim, if you look at the wording of section 3(1)(b) of the Act, it does three things: it says the person to be appointed as the Chief Administration Officer must be suitably qualified and experienced; such person is appointed by the Public Protector, or seconded in terms of a secondment provision in the Act; and that the person assists the Public Protector in the performance of all financial, administrative and clerical functions pertaining to the Office of the Public Protector.

Mr Ebrahim: Correct. All those functions are under the direct control of the Public Protector, which is very different from other parts of the public service.

A further important point, which relates to the Deputy Public Protector and which is not provided for in the Constitution, but it is created by the Public Protector Act that we just talked about and who is also appointed by the President on the recommendation of the National Assembly. The Deputy Public Protector has no independent functions, and only exercises such powers as a Public Protector may delegate. It is quite basic. So, it depends really on what the Public Protector requires and the Public Protector will only delegate those powers that the Public Protector feels the Deputy should require. However, by operation of law, the Deputy Public Protector performs the functions of the Public Protector whenever the latter ‘is, for any reason, unable to perform the functions of his or her office’. (Ebrahim, H p43). And that is fairly basic. It is a general rule in administration.

There is a further point which I think is of critical importance for this Committee. Under section 3(9) of the Public Protector Act, it states that the Public Protector, after consulting with the Minister of Finance, determines the remuneration allowances and other employment benefits, as well as the terms of employment of the Chief Administration Officer and all staff members. Again, a fundamental departure from the way in which the public service works where no one is allowed to prescribe the salaries. A Public Protector can do that for members of staff. So, the Public Protector is given really wide authority and power, as such.

Mr Ebrahim: Chairperson, I want to move on to the question of the removal of the Public Protector and the legal requirements. Firstly, the Public Protector may be allowed to vacate office due to ‘continued ill-health’ or upon request, if the National Assembly accedes to the request. So, the Public Protector may only be removed from office in accordance with section 194 of the Constitution. Now the important thing is the only basis on which this removal can take place is on the ground of misconduct, incapacity or incompetence. It is three basic terms and I shall touch on this and focus on it a little later. The second part is that it must be on a finding to that effect by a committee of the National Assembly. So, if the committee comes to that conclusion, that is a critical requirement and in an adoption by the Assembly of a resolution calling for the person's removal from office. Further, it says that the President may suspend a person from office at any time after the start of the proceedings of a committee. It does not describe which committee but it says a committee of the National Assembly for the removal of that person. So once a committee has been established, the Constitution gives that right to the President to suspend a Public Protector.

The Constitution therefore provides as follows:
The National Assembly is the effective decision-maker under section 194 of the Constitution. While the President is responsible for the act of removing the Public Protector from office, he may only do so if the National Assembly has called for the removal of the incumbent and must comply with the National Assembly’s resolution if it does decide that the Public Protector should be removed.

The Public Protector may only be removed from office on one of three grounds: misconduct, incapacity or incompetence. The Constitution does not define these grounds. This is a lower standard than what is imposed on the judiciary, as judges are removable only for gross misconduct – a material distinction between the removal of the Public Protector and a member of the judiciary. (Ebrahim, H p45)

I want just to identify for purpose of this Committee, there are three constitutional officers that are of importance: the first is the President, the second is judges, and the third is the Public Protector.

Chairperson: Mr Ebrahim just pause there. I was guilty yesterday, of keeping everybody for too long and I am also trying to control the traffic. I need to find a way to balance the two. We are just going to pause for 15 minutes. We will take a break, and come back.


Chairperson: We resume where we left off. Mr Hassen Ebrahim, the platform is yours.

Mr Ebrahim: Thank you very much Chairperson. We were talking of removal. I thought it would be useful for this Committee to compare three different constitutional citizens of a high status or nature, one being the President, the second being a judge, and the third being the Public Protector. Let us compare what the Constitution says about them in terms of removal. When it comes to the President, the Constitution deals with it in Section 89 (of the Constitution). To remove a President, it requires a serious violation of the Constitution, or serious misconduct. You will notice that the word serious is repeated in both instances. When it comes to removing a judge, as referred to in Section 177, you need gross incompetence, not incompetence, gross incompetence, or gross misconduct, which is much more severe. However, the removal of a Public Protector can be done on one of three reasons: the first is misconduct, the second is incapacity and the third is incompetence. So, not such a serious status as that required of a judge.

Adv Bawa: Mr Ebrahim, in putting it that way, there is almost a hierarchy. You need a higher standard for the judge, a medium standard for a President and a lower standard for the Public Protector.

Mr Ebrahim: I would put it slightly differently, but I would agree with you.

Adv Bawa: You are talking about misconduct, serious misconduct and gross misconduct, unless you are saying that serious misconduct is higher than gross misconduct. But that is not the language that the Constitution uses.

Mr Ebrahim: No. The Constitution uses, for a judge, the words ‘gross incompetence and gross misconduct’. For the President, it is a serious violation of the Constitution and serious misconduct, but for a Public Protector, it merely says misconduct, incapacity or incompetence. And in my opinion, I believe that the Public Protector is set at a different standard to that of a judge and, in my understanding of it, when one compares these three offices, it is because of that elevated status of the Public Protector, which means that with the power comes an enormous set of responsibilities, and that responsibility means that a Public Protector is required to conduct him or herself in a manner that is of a nature that is beyond question.

The Constitution does not define for the Public Protector, misconduct, incapacity or incompetence. Clearly, my argument is that it sets a lower standard than what is imposed on the judiciary. Judges are removed only by gross misconduct and there is a material distinction between the removal of the Public Protector and a member of the judiciary.

Now, I want to proceed further to a point which I think is important because we need to distinguish a particular individual’s incumbency, which I think must be separated from the Constitution. Consider the difference between the incumbent which says axiomatically, the Public Protector's Office is more important than any incumbent, distinguishing between the Office and the person. The impact of certain types of conduct that shake its operations and the foundation may outlive the terms of office of a number of incumbents. If you weaken the Office, you weaken our constitutional democracy, its potency, its attractiveness to those it must serve, its effectiveness to deliver on its constitutional mandate which must be preserved for posterity. So, it is very important to separate the incumbency from the Office itself.

My argument takes it a step further. It is even important that you protect the Office from the incumbent. So, the incumbent could conduct him or herself in a manner that may bring disrepute to the Office, and therefore, to protect the constitutional status of this Office and the integrity of this Office, you need to ensure conduct of a nature that is beyond question.

To go on to the question of when to exercise that discretion. The National Assembly adopted a set of rules for the removal of an officer or a holder of public office in state institutions supporting constitutional democracy. It is commonly referred to as the Removal Rules of 2019. It defines incompetence and misconduct. Incompetence is defined as a "demonstrated and sustained lack of (a) knowledge to carry out; and (b) ability or skill to perform his or her duties effectively and efficiently". So, incompetence in the public service generally really impacts on the two terms, knowledge or ability, that is, the skill to perform, and that relates to incompetence.

Misconduct is somewhat different. It is defined as "the intentional or gross negligent failure to meet the standard of behaviour or conduct expected of a holder of a public office". That is the definition that has been offered to us in the document provided by the National Assembly. Very usefully, Chairperson, the jurisprudence helps us. In the matter of The Speaker v Public Protector, the Constitutional Court recently set out the following regarding Section 194, and it is worth noting: that constitutional officers who function to hold those powers accountable, must also be held accountable themselves. So, watching the watchers, guarding the guardians, requires a higher standard of conduct. The accountability of somebody who is holding other officers to account must be of a certain nature and beyond reproach.

Removing an incumbent from the Office of the Public Protector must occur in accordance with the Removal Rules, proceeding with a section 194 inquiry as the Committee. In terms of the amended Removal Rules, the Committee will be able to ensure the Public Protector’s accountability. Because of a legal representative, the Public Protector will not respond directly to certain questions as the legal representative may answer on her behalf. However, the Committee may ask the office bearer to respond directly to certain questions, even if he is or is not at the same time giving evidence under oath. That is limited to cross examination of the office bearer and to request that the office bearer directly respond to questions posed by the Chairperson. It sets out the metaphysics fairly clearly.

I want to move on to the question of the definition of misconduct because that is fairly important. The Removal Rules define the concept of misconduct with reference to gross negligence and intention. And that is quite important and useful. The Removal Rules provide also greater detail to guide Members of the National Assembly, which is not only beneficial but imperative to ensure fairness and consistency in Section 194 proceedings. Now, in the case of The Speaker v Public Protector, the court noted that the process for removing Chapter Nine office bearers is similar to those for removing the President of the Republic. So, the court is referring to the process, rather than the requirement of negligence or misconduct, as opposed to serious misconduct. The Constitutional Court had occasion to consider the latter process, and in that context, noted the following: The constitutional provisions for removing the Head of State are tools for holding the President to account. The same applies to the Public Protector. It is done by way of a motion of no confidence and that is what holds the President to account under the Constitution. Only the National Assembly may remove the President from office. The Constitution does not define the grounds of impeachment, including what constitutes serious misconduct, and has left the details of those definitions to the National Assembly. However, the Constitution's intent was not to leave the definitions up to the individual Members, else there will have been divergent views on what amounts to serious misconduct. The important thing is that accordingly, there must be an institutional predetermination. The National Assembly is required to decide beforehand, a predetermination, of what constitutes serious misconduct. And that definition is set out very clearly.

In respect of misconduct as defined in the Removal Rules, it is concerned with the standard of behaviour expected of the Public Protector. It should therefore be measured against the constitutional requirements, including the ‘fit and proper’ standard. The Public Protector must be found to have a degree of fault in the form of either intention or gross negligence.

Intention – often referred to by the Latin term ‘dolus’ – generally includes both intention to achieve a particular result and consciousness that that result would be wrongful or unlawful. It is concerned with what the individual in question subjectively foresaw.

Intention can take one of three forms: dolus directus, where the individual directs his or her will at causing the consequence in question; dolus indirectus, where the individual directs his or her will at causing something to happen, but knows that another consequence (the consequence complained of) will inevitably also arise; and dolus eventualis, where the individual ‘foresees the possibility of a consequence eventuating as a result of her conduct but reconciles herself with the fact and proceeds anyway’. Unlike intention, ‘negligence’ is assessed objectively, from the perspective of the reasonable person. It arises if – a reasonable person in the Public Protector’s position would (a) foresee the reasonable possibility of conduct having particular consequence and (b) take reasonable steps to guard against those consequences; but the Public Protector failed to take such steps. That was what was argued in the Kruger case. (Ebrahim, H. p 51)

The Removal Rules do not merely require negligence to be shown, but ‘gross’ negligence. Generally, that ‘connotes a particular attitude or state of mind characterised by an entire failure to give consideration to the consequences of one’s actions, in other words, an attitude of reckless disregard of such consequences.

So, we move on to the definition of incompetence. Incompetence as defined in the Removal Rules is concerned with the duties of the Public Protector. It should therefore be measured against the duties of investigation, reporting, determining remedial action and management. It is concerned with both a lack of knowledge and ability or skill to discharge the functions of the office. A proven lack of ability or skill may show a lack of knowledge. Due regard should be paid to reasonable mistakes and more weighty errors, which in the context of the Public Protector may include changing the meaning of legal instruments she is required to apply and disregarding the undisputed evidence. So, it is a question of how it how one interprets the question of reasonable mistakes and what is weighty evidence in the context required.

The important thing is that these must both be demonstrated and sustained. They must be proven or shown on reliable evidence and consist of repeated conduct, repeated errors or mistakes and not just a momentary lapse of judgment. They must be measured against the Public Protector's duty to discharge functions effectively and efficiently. Two important terms, which I think are important to set out and the duties follow from, amongst other things, section 195. Let me just deal with the question of the requirement of effectiveness because this is important. Effectiveness is really measured against the objectives. So public servants will look at how effective you are and when they look at how effective you are, it is measured against your strategic objectives and what is delivered. Efficiency is measured against the resources. So, with the resources that you have, have you done what is required of you? Effectiveness and efficiency are two legs on which this argument stands. 96.       In the Executive Ethics Code case, the Constitutional Court alluded to the notion of ‘incompetence’ in the context of the Public Protector’s constitutional duties. Let me read you what constitutes the Court's intent:

"The Public Protector, like all of us, is fallible and mistakes are to be expected in the course of the exercise of her powers. But what is troubling in this matter is the series of weighty errors, some of which defy any characterisation of an innocent mistake. For example, giving the phrase ‘wilfully misleading’ the meaning of ‘inadvertently misleading’ for it to fit established facts. She disregarded uncontroverted evidence… The nature and number of errors committed by the Public Protector here call into question her capacity to appreciate what the law requires of her when she investigates complaint, arising from the violation of the Code. This is surprising because the Public Protector is, by definition, a highly qualified and experienced lawyer. As required by law, she has no less than 10 years' experience in the relevant field of law". (Ebrahim, H. p 53)

The Supreme Court also stated that a senior public functionary’s failure to appreciate the correct legal position may constitute legal incompetence sufficient to warrant removal from office. And this is, like the Jiba case, because it is not just an ordinary lawyer, but a public official recognised in the Constitution, and the impact of the correct legal position that may constitute incompetence.

 I just want to conclude on the issues of removal, removing the Public Protector from office is a very serious matter that should not be undertaken lightly at all. And this is evident from among other things, the significance of the role that the Public Protector plays in our constitutional democracy, and the fact that such a removal can only occur with, among other things, the supporting vote of at least two thirds of the National Assembly. In the process of discharging its functions, the Committee should have due regard for, among other things, the chilling effect that its decision may have on effective exercise of the Public Protector’s powers by incumbents to the office, but not only that, but also to future generations. So how one decides, should be considered very, very carefully. Removing a Public Protector from office is a fairly serious exercise. But engaging in the process in terms of section 194 of the Constitution is also a critical means of ensuring accountability. It is how this National Assembly exercises its oversight and holds people to account. It is also part of the rule of law. And it is in the public interest for the process to be final. So, what is important in this, as pointed out in the matter of the Speaker, is that Members of Parliament are insulated from outside repercussions in discharging functions – they have substantial freedom of speech, as well as immunity from civil and criminal liability, as well as arrest or imprisonment. The powers must primarily be exercised to promote only people's interest and institutional objectives of the Assembly. Furthermore, when interests of the political parties are inconsistent with the Assembly's objectives, Members must exercise the Assembly's power for achievement of the Assembly's objectives, and cannot frustrate those objectives in order to avoid harm to the political party.

Adv Bawa: If I could just interrupt you. That that is very much in line with the debate that ensued yesterday about this Committee exercising these powers impartially and without bias.

Mr Ebrahim: To add to that, Members of Parliament must subordinate their political interests, and the interests of their parties, to the ‘institutional objectives’ of holding the Public Protector to account and, ultimately, ensuring that the South African public is served as contemplated by section 182 of the Constitution and the Public Protector Act. So, a particular individual should not be equated with the Office of the Public Protector.

Section 194 of the Constitution is primarily concerned with protecting the office rather than the particular incumbent. It is recognizing the importance of the office and separating the question of the office from the person, as we said a little earlier. A Public Protector may only be removed from office on any one or more of the grounds of misconduct, incapacity or incompetence. The definitions in the Removal Rules must be applied accordingly. It is up to the Committee, at first instance, to determine whether the definitional requirements are met. The Committee will apply its mind consider the facts and come to the conclusion. Individual members of the Committee may not determine their own definitions for what constitutes ‘incompetence’ or ‘misconduct’. Instead, they must adhere to the ‘institutional predetermination’ of those concepts as set out in the Removal Rule and agreed to by the National Assembly. The definition is actually quite important because it sets out those concepts as set out in the removal route.

Chairperson, I want to conclude my presentation, and I apologise for being so long-winded. But in the conclusion, I want to set out what may appear to look like a checklist and it may assist this committee in just applying its mind to defining really, what are the issues that require attention. So, in summary, the Constitution and associated legislative framework, including jurisprudence, require the Public Protector to do the following:
1. Respect the supremacy of the Constitution and the rule of law.
2. Strengthen constitutional democracy.
3. Focus on ensuring the discharge of public functions that is accountable, responsive and open.
4. Respect the separation of powers and the legitimate sphere of operation of each branch of government and in so doing respect the decisions of the Executive, Legislature and Judiciary.
5. Be independent and impartial, and perform functions without fear, favour or prejudice.
6. Be dignified and effective.
7. Be dedicated and conscientious.
8. Discharge her functions diligently and without delay.
9. Exercise only those powers that are conferred by law.
10. Not assume the powers or functions of any other public functionary or encroach on its integrity.
11. Adhere to a high standard of professional ethics.
12. Ensure the efficient, economic and effective use of resources.
13. Ensure that services are provided fairly and without bias.
14. Foster transparency.
15. Be accessible.
16. Cultivate good human-resource management and be capable of managing an office that comprises hundreds of personnel and numerous departments/units.
17. Exercise appropriate and effective control over the Deputy Public Protector and the staff of the Public Protector’s office.
18. Delegate powers to the Deputy Public Protector to exercise.
19. Be capable of undertaking and managing numerous investigations, and of understanding and applying the Constitution and the laws that regulate the public administration and affairs of State.
20. Maintain an office that is accessible to members of the public.
21. Discharge functions so as to ensure ethical and effective public administration generally.
22. Monitor the performance of the executive, which includes investigating alleged maladministration, abuse of power, discourtesy, undue delay, improper or dishonest conduct, improper enrichment and improper or unlawful prejudice.
23. Work to ensure that the public administration carries out its tasks without corruption or prejudice.
24. Be the last defence for the public against bureaucratic oppression, corruption and malfeasance – in other words, to protect the public.
25. Investigate complaints from members of the public in respect of State affairs or the public administration, report on the conduct complained of, and take appropriate remedial action.
26. Decline to investigate conduct that occurred more than two years prior to the complaint, unless there are special circumstances that distinguish the complaint.
27. Consider a range of options in addressing a complaint, including mediation or negotiation; advising the complainant regarding appropriate remedies; and reporting an offence or particular conduct to the appropriate authorities.
28. In determining appropriate remedial action, not order an organ of state to do something that is outside of its own powers.
29. Make clear rather than vague determinations,
30. Be objectively fit and proper to render the constitutional functions of office.
31. Be appropriately experienced in the law, the administration of justice, public administration and/or the legislature.
32. Be a person of stature and beyond reproach.
33. Be suitably qualified.
34. Be scrupulously honest and have absolute personal integrity.
35. Disclose all material facts and evidence, and behave with utmost good faith, when litigating and dealing with the courts.
36. Not exploit loopholes, or show disregard for the law, or mislead in any way, or make charges without supporting evidence.
37. Ensure that all statements of the law are accurate, and not misconstrue the law.
38. Be a good constitutional citizen.
39. Be willing and capable of taking on sensitive investigations that might antagonise the powerful.
40. Observe the requirements of procedural fairness and confidentiality during investigations and allow potentially affected persons a proper opportunity to make meaningful representations.
41. Conduct investigations with an open and enquiring mind and follow wherever the evidence leads.
42. Discover the truth and continue digging until the true picture emerges.
43. Not extend investigations beyond the affairs of State, into the affairs of private parties.
44. Not expand an investigation without lawful justification.
45. Be cognisant of the serious consequences that can flow from an investigation.
46. Inspire confidence in the integrity and completeness of investigations; and
47. Account to the National Assembly.

These are based on the Constitution, the legislation, and the rules and the case law, but it is fairly weighty and fairly lengthy and, hopefully, it is a useful checklist for this Committee to apply its mind. But these principles also overlap considerably in both impacted meaning and clearly set a very high bar for the watchdog created for the purposes of oversight. At first glance, it may seem an almost impossible standard to meet these as a collective and that may well be so. What requires an assessment in any enquiry could well not only be compliance with the aforegoing but the extent to which there exists a failure to comply with one or more of the aforegoing and the extent to which any Public Protector falls blatantly short of what is required so much so that it constitutes misconduct, incompetence or incapacity meriting removal. It is the extent of the failure that is to be determined.

Thank you very much. That is basically my submission, and hopefully does have some value.

Chairperson: Thank you very much. That was a good marathon you ran. I appreciate it. Adv Bawa.

Adv Bawa: I have nothing I wish to add, save maybe one thing that you touched on earlier. In addition to the 47 principles that you put out there, Mr Ebrahim, there is another fundamental aspect of the Public Protector, it is that body which should be available to the poorest of the poor. In a way, it touches on your accessibility, but it is the one for which there are no cost implications for the poorest of the poor in the country.

Mr Ebrahim: Absolutely. I mean, accessibility, muscle mass in accessibility in South Africa has been defined in a fairly interesting way. And we started that concept from, I am pleased to say, in the Constitutional Assembly, where we were not just open but accessible. The office reached out to people so as to ensure that people could engage. So, the services of the Public Protector must be available to the poorest of the poor. Absolutely.

Chairperson: Thank you Adv Bawa and Mr Hassen Ebrahim. In the room, you have Members of the National Assembly who are members of this Committee. And as introduced at the beginning, on my left, I have the Public Protector’s legal team led by Adv Mpofu with Adv Bawa having interacted with you throughout your presentation. I am now going to take the opportunity and invite Adv Mpofu to raise any comments he has. I would invite him to engage with you. And just to indicate to Members of Parliament and of the Committee, you are the custodians of this process. So we will come to you but, if at any point, you want to make sure something is not missed, feel free to raise it. You will indicate should you wish to speak as it helps the flow of the interaction. Trust me that when it spoils it, I will be able to intervene. I now recognise Adv Mpofu.

Adv Mpofu: Thank you, Chairperson. How are you this afternoon? Mr Ebrahim, I think let's just start with a warm-up of the basics. Am I right that you do not have a South African legal qualification?

Mr Ebrahim: Yes, in fact, I was qualified in Botswana. I went through the panel in the early 1990s when we had a panel to evaluate qualifications and I was passed by the panel but what I did not do, was apply to court for appointment as either an advocate or an attorney.

Adv Mpofu: I think that is a yes. We need to establish what you are an expert of, so that we know how you may be of assistance to the Committee? So, what would you say you are an expert of?

Mr Ebrahim: I think it is a fairly difficult question. The point is, there are my legal qualifications, my experience in the negotiations process of the Constitution and then implementation of the Constitution. I worked 10 years in the Department of Justice as a Deputy Director-General, implementing the Constitution, including two years during which I was appointed Chief Master of the High Court and thereafter I worked for various ministers and served the chief justice in establishing the Office of the Chief Justice, after which I served the United Nations in different offices in different parts of the world, but primarily in the area of constitution making and drafting of constitutions in different countries where I assisted in establishing what best practices were in constitutions and constitution making. I hope this provides some basis for Adv Mpofu.

Adv Mpofu: No, it is not helpful. I do not understand, but let's go more slowly, maybe more concretely. I do not know what you are saying.

Chairperson: Would you like him to repeat that?

Adv Mpofu: Chairperson, I do not know what he said. Please do not interrupt.

Chairperson: I am not interrupting you, but I chair the session and I have to facilitate the session. You have indicated that you did not know what he was saying. And I thought, if that is the case, then he needs to repeat himself.

Adv Mpofu: Then it means you do not know the difference between hearing and knowing. I did not say I did not hear what he said, I do not know what he said. Even if he repeats it 1 000 times, I will still not know it. And…

Chairperson: Then if we establish that, I will have to find a way to attend to that. Go ahead.

Adv Mpofu: Okay. You understand that? I am not deaf. I heard what he said; I do not know what he thinks he is saying to me. Understand the difference? At least if you understand, then I am happy.

Mr Ebrahim: I am happy you have a value judgment. You are entitled to that judgment and your opinion.

Adv Mpofu: I am not saying I am not judging you. I am saying to you, before I was interrupted, that I do not know what you mean in explaining what you are an expert of. Remember my question.

Mr Ebrahim: I prefer not to refer to myself as an expert. I prefer to refer to myself from the experience that I have and I set that out for you. How you wish to treat that is entirely up to your judgment. I am not going to argue with you.

Adv Mpofu: Thank you. Now I know you are not an expert.

Mr Ebrahim: You are entitled to refer to me as you please.

Adv Mpofu: No, sir. I am asking you not what I am entitled to. Are you an expert or not?

Mr Ebrahim: Yes, I am. I am an expert in constitution making processes. I have worked 25 years in the processes of constitution making in this country as well as many other countries and have been helping many countries draft a constitution. Making process, as well as a constitution.

Adv Mpofu: But you said you prefer not to call yourself an expert.

Mr Ebrahim: It is just a preference. It is a preference. Yes.

Adv Mpofu: Thank you. Okay. All right. You are not an expert in removal proceedings of Public Protectors or ombudspersons.

Mr Ebrahim: I think there are probably no experts in that area. It is a new area that is being discovered. I think it is an area that the courts are considering; it is an area that Parliament is applying its mind to and has been trying very hard to find an expert in this particular field. People have expertise on the basis of jurisprudence, and the legislation, and have applied their minds, as I have applied my mind. I am not sure what you referring to?

Adv Mpofu: I shall also take that long thing as a yes. You are not an expert in the removal of Public Protectors, or ombudspersons? Yes or no?

Mr Ebrahim: I have knowledge, and I've looked at the legislation, the Constitution and the jurisprudence, and I've given you my views on the matter.

Adv Mpofu: So I can ask you for the last time: you are not an expert in the removal of Public Protectors, or such offices. Yes or no?

Mr Ebrahim: No. I prefer not to say that I am an expert in that area.

Adv Mpofu: So that is a no or is it a yes? Yes, you are not an expert in constitutional interpretation.

Mr Ebrahim: I have a bit of experience in my work in different countries in terms of constitutional interpretation. I've worked with a number of different countries and have contributed to a number of different books and so on in depth. This is in my resume. So I have contributed to each area and I regard myself to have significant knowledge in that area.

Adv Mpofu: So I also have significant knowledge of that. I asked a different question. You are not an expert in constitutional interpretation, yes or no, please.

Mr Ebrahim: I have views as a legal professional and as a person in my capacity. I have had an opportunity to consider the matter but I prefer not to regard myself as an expert.

Adv Mpofu: Thank you. So that is the second thing you are not an expert in. Now you have made some statements which are based effectively on what you call your view or interpretation since you are not an expert. You are like everyone else in the street with your views of the Constitution, some of which I am going to deal with, but I just wanted to know at what level I should deal with it. At an expert level, if we should just have a chit chat as we might have in the passage. Alright, one of the things that you have said is that a Public Protector can be compared to a judge and, by the way, I agree with you. But I just want us to unpack that statement.

You know that something we discussed yesterday was that Parliament or the National Assembly has a duty to protect the independence of the Public Protector.

Mr Ebrahim: There is no question about that; it is a constitutional requirement.

Adv Mpofu: And you know that the duty of the National Assembly is to assist, not only to protect, but to assist the Office of the Public Protector in asserting its effectiveness, dignity, and more importantly, its independence. Now, you also made a very important point about who watches the watchers or as I prefer to coin it: who will guard the guardians? Correct? That is also an important principle of accountability, correct?

Mr Ebrahim: Correct.

Adv Mpofu: So, for example, that is why charges have to be accountable, because we rely on the Public Protector to hold the rest of society accountable. The same courtesy should therefore be extended to a process like this. In other words, the guardians here have to act lawfully.

Mr Ebrahim: Correct.

Adv Mpofu: And you would agree that if a process such as this is tainted by illegality, then to borrow from Mr Hendrick's not so favourite expression, then it would be a futile exercise.

Mr Ebrahim: It would be a serious issue, yes.

Adv Mpofu: It to be a futile exercise if it was tainted by illegality. Do you agree?

Mr Ebrahim: I do not know what point you want to get through? If I give you an answer on that…

Adv Mpofu: Why is it so difficult - if such a simple process is tainted by illegality, it would be a futile exercise.

Mr Ebrahim: It is possible, yes.

Adv Mpofu: What is the other possibility?

Mr Ebrahim: It is a question of what you are referring to? The process itself? I am not here to look at this process. I came to provide a submission on my views on the legal context and framework. That that was my brief. And that is what I came here to do. I did not come here to talk about the process of what is being undertaken.

Adv Mpofu: I thought, when you were giving your 49 points, you said you are assisting this process.

Mr Ebrahim: I was assisting this Committee,

Adv Mpofu: The Committee and the process are the same things.

Mr Ebrahim: If you wish to say so, sir. Thank you.

Adv Mpofu: I say so. So will you answer my question that if the Committee or the process or whatever you want to call it, is tainted by illegality, do you agree it would be a wasteful exercise signifying nothing?

Mr Ebrahim: I am not sure I would go to that extent, but I think that the illegality would impact on the outcome of the process, yes.

Adv Mpofu: Right, so you do not agree then. Have you read the EFF v National Assembly case, the second one, because I am surprised you did not refer to it.

Mr Ebrahim: Yes. The 2016 case? Yes.

Adv Mpofu: That is not the one I am talking about. Is the 2016 case the only EFF v National Assembly case? Yeah. Okay. All right. Well, here's another important EFF v National Assembly case, which, you obviously have not read as you did not refer it.

Mr Ebrahim: I know the case, yes. That is the 2018 case.

Adv Mpofu: I thought you said the only case you had ever read was the 2016 case of the EFF.

Mr Ebrahim: I conflated the two cases: the one is the 2016 case, and the second is the Economic Freedom Fighters v The Speaker. Okay,

Adv Mpofu: No, that is fine. We will distinguish them as such: the 2016 case we will call the EFF Nkandla case. The other one we will call the EFF impeachment case. Okay. And I got enough from your latest answer that you have read the EFF impeachment case.

Mr Ebrahim: Yes, yes.

Adv Mpofu: Do you agree with what was said by the Constitutional Court in paragraph 289? But an exercise like this would be wasteful or at least challengeable and reviewable if it did not comply with the Constitution, in other words, if it was tainted by illegality?

Mr Ebrahim: Yes. That is how the Constitution Court operates.

Adv Mpofu: You understand that we're dealing with the EFF impeachment case. If you want full citation, it is 2018 Volume 2, page 571 of chapter … The majority judgement of Judge Jafta is what I am referring to.

Adv Bawa: Can you take us to a particular paragraph?

Adv Mpofu: It is paragraph 289. I've got it here but not in full. It does not really matter because you agree with the sentiment. Do you agree with the sentiment?

Dr C Mulder (FF+): Can we have that paragraph in full, please. I just want to note that we will get the full paragraph through the Chairperson.

Adv Mpofu: Yes, you will get it. Okay. I read it yesterday but I shall read it again.

Chairperson: The support staff can provide it.

Adv Mpofu: I just did not want to waste your time. Normally, I would come back to it, but if there is an insistence that is fine. We will wait.

Dr Mulder: I am not asking the Advocate to read it to us. I am asking that the Committee be given a copy of that exact paragraph in full.

Adv Mpofu: Okay to do that. I read it out to you yesterday, but I can read it again.

Adv Bawa: I am looking at the judgment but I am not seeing a paragraph 289. I am just double checking.

Adv Mpofu: Okay. My juniors will look for that. It is the same one I read yesterday. I can read it again today.

Dr Mulder: I am still requesting paragraph 289.

Adv Mpofu: Okay. Mr Ebrahim, forget about the paragraph numbers. We will get it now. You agree with me? With the sentiment expressed by the court that an alleged removal process that does not comply with the law would not be an impeachment process? A valid impeachment process.

Mr Ebrahim: I do not actually have the judgment in front of me.

Adv Mpofu: Forget about the judgement. Do you agree with the sentiment that if there was a constitutional process that is tainted by illegality, it would be set aside by a court of law?

Mr Ebrahim: I know but I would actually appreciate having a look at the judgment to answer your question. Really. You are asking me to give you a statement. Just a pause.

Chairperson: Just a pause. If you could, please pause, because I am now going to ask that we adjourn for lunch. And then we will resume with you immediately at two o'clock.

Adv Mpofu: Can I just put one question so that he can mull over it over lunch. Mr Ebrahim, do you realise that you are here to assist the Committee? Not to assist any narrative.

Mr Ebrahim: Absolutely.

Adv Mpofu: Okay. And therefore you should be just forthcoming because I am not trying to trick you. I am just asking you questions so that you can assist the Committee. You understand that?

Mr Ebrahim: Oh, absolutely. I am not avoiding your question. I am only asking to have reference to the point you are referring to, so that I can answer it.

Adv Mpofu: No, you are avoiding my question. Let me explain why. And I want you to think about it at lunch time. I said to you, forget about any judgment. Assume there is no such judgment. I am asking you a very, very simple question. Do you agree or not with the sentiment that if there was a process like this, and it was tainted by illegality, it would be a futile exercise? I mean, why do you need any judgment for that? I am asking you that question.

Mr Ebrahim: You are basing your argument…

Adv Mpofu: I am not basing my argument on anything? I am asking you a question. A simple question.

The Chairperson: Allow him to complete as well. Go ahead, Mr Ebrahim.

Mr Ebrahim: It depends on the nature of the defect that is being referred to, and the impact, as to whether it is legal or not legal. Okay?

Chairperson: I will pause for lunch.


Chairperson: Before we restart, there are just some things to get out of the way - some of the logistics that are going to be needed continuously in the meeting. I am going to ask Adv Bawa to attend to the issue of judgment and information.

Adv Bawa: Thank you, Chairperson. We have endeavoured to put the most relevant judgments together in a folder. Adv Mpofu, if you can give us, when you refer to a judgment, which case it is and which paragraph, we will endeavour to put it up on the screen so that the Members can follow and then they would be less … then they would be able to know what we are talking about.

Chairperson: Okay, thank you. I am hoping we will proceed as such. Adv Mpofu.

Adv Mpofu: Yes. Thank you. Yes, I think that will be helpful for the Members to see. Mr Ebrahim.

Chairperson: Will you switch on your microphone, Mr Ebrahim?

Adv Mpofu: Thank you. Okay, you have access to at least one of the screens? I owe you an apology for the reference. I couldn't find my judgment. But have you been told which it is? It is the 2018 judgement, and as I say, I apologise for giving you the wrong reference to the part that I was referring you to; it is paragraph 206. You got that? But I think it would be helpful to do this, again because this is crucial for this Committee. In particular, the aim of this part of the cross examination is to establish for the Committee, to assist it to establish when it meets or makes decisions, whether this is a futile exercise or whether it should, as some of its members say, seek legal advice, or whether it should go ahead regardless. Now you are aware that there is a need in terms of section 194 - I think you have said this in fairness to you in your own document - there needs to be what is referred to as an 'institutional predetermination' of the existence of the ground. Agreed?

Mr Ebrahim: That is correct. Yes.

Adv Mpofu: And that institutional predetermination precedes the actual removal process, correct?

Mr Ebrahim: That is correct.

Adv Mpofu: And the tail cannot wag the dog. So, you must start with the institutional predetermination. Once you have a finding, then you get into removal proceedings, correct?

Mr Ebrahim: Yes.

Adv Mpofu: And the part that I am going to read to you establishes that, and then I shall come back to the question that I was going to ask. If you indulge me, let us go back to paragraph 204. It says section 89(1). Every time I say section 89, for the purposes of this discussion, you must substitute section 194. [section 89 deals with impeachment of the President; section 194 addresses impeachment of the Public Protector]. Do you understand the exercise? In other words, an impeachment process for the President is not what we are busy with here. It is the Public Protector, but I am talking about the principle we need to understand.

Mr Ebrahim: Yes.

Adv Mpofu: So, when I say section 89, in your head, you must think section 194. Okay. "But the process envisaged in section 89(1)" – that means in an impeachment process – "involves necessarily an antecedent determination by the Assembly to the effect that one of the listed grounds exists". Do you agree with that?

Mr Ebrahim: Yes.

Adv Mpofu: "This is because those are grounds for the President’s removal. With regard to the motion, this was not done. It was simply tabled, debated and voted on". Now, you said in your testimony, that when it comes to the process, it is an identical process, whether it is the President or the Public Protector, correct?

Mr Ebrahim: Correct.

Adv Mpofu: You did, in fairness to you, make the distinction that when it comes to the merit, the standard to be satisfied, there is a hierarchy. We are not talking about that now. We are talking about the process, which is identical, correct? Now, it says, the Assembly did not address the process of a motion on the fitness of that the person and that, indeed, he had committed a serious violation of the Constitution. But those are the facts of that matter.

Here is the important part: "This was a necessary condition for commencing a section 89 process". You understand what that means; that the determination of the existence or non-existence of the ground is a necessary condition for the commencement of the process of the impeachment process. Agree with that?

Mr Ebrahim: Yeah. Yeah.

Adv Mpofu: Now, it says: "Without accepting that one of the listed grounds existed" – the word existed is important – "the Assembly could not authorise the commencement of a process, which could result in the removal of the President from office". You agree with that?

Mr Ebrahim: Yeah. Yeah.

Adv Mpofu: And it goes back to where we started, that you cannot do the second one without having done the first one. You can't do the removal process without having done the determination of the existence of the grounds for the process. Agreed?

Mr Ebrahim: The predetermination related to …

Adv Mpofu: Existence of the crime.

Mr Ebrahim: … the definition needed to be determined. So, it was a predetermination of really what was meant by misconduct, serious misconduct, whatever. It is not a question of the grounds. It is a question of the predetermination of the definitions so as to ensure that there was no dispute around what was meant by misconduct, or serious misconduct.

Adv Mpofu: Mr Ebrahim, please, but that is the same thing. That is the ground for removal, isn't it?

Mr Ebrahim: Yeah, it was a definition of the issues.

Adv Mpofu: But that is otherwise known as the ground. So, I do not know what we are debating. Now, it says, moreover, that it does not appear the President was afforded an opportunity to defend himself, and knowing that the Assembly holds the view that President 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. That is why I wanted to start with what I was asking you before lunch. So, for whatever reason, if the procedure does not accord with section 194, then I am saying to you, that it means that the process is liable to be reviewed and set aside.

Mr Ebrahim: Yes, it has to comply with the Constitution. Yes.

Adv Mpofu: Thank you. The lunch assisted. Okay. Paragraph 206: "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. That is the real issue I was putting to you before lunch. Do we now agree?

Mr Ebrahim: Yes.

Adv Mpofu: Good. Right. So now let us come to this procedure to see whether it is the one described here, which would be a waste of time or another one, which might serve some purpose Now, you said something that worried me a bit: section 194 does not concern the person, but it concerns an institution. That was a source of some confusion yesterday, and I do not want you to add to that confusion. Is that what you said? Did you testify in chief this morning that section 194 does not concern a person, but concerns an institution? An office?

Mr Ebrahim: Yes. Okay. Good. Removal from office. Section 194 deals with removal from office, so it is the removal of a person from the office.

Adv Mpofu: Please. Do you or did you not testify that section 194 rather concerns the removal of an office and not a person?

Mr Ebrahim: No, it is not the removal of the Office, but the removal of the person. [He read section 194].

Adv Mpofu: Mr Ebrahim, you would spend a lot less time if you listened to the question and answered it. Did you Mr Ebrahim, yes or no, say this morning that the section 194 concerns an office and not the person? Either you said it or you did not say it.

Mr Ebrahim: Removal of the person from office. That is what it says.

Adv Mpofu: For the last time, Mr Ebrahim, did you? He has not answered the question. So, a simple yes or no? He said it or he didn't say it. Did you say this morning, or did you not to say, that section 194 concerns an office and not a person? It is not that difficult.

Mr Ebrahim: Removal of a person from the office.

Chairperson: He has answered the question. You might not like the answer, but he has answered.

Adv Mpofu: He said it again! No! He must answer the question. Oh, it does not matter. Chairperson, I am asking about this morning, please, he is clarifying.

Chairperson: What he was doing was clarifying himself. You might have to help us. You must refer to that specific reference in his presentation, so that we deal with that specific issue. Thank you, and do not throw a general question.

Adv Mpofu: Thank you, Chairperson. It is not a general question. There is only one Mr Ebrahim here.

Chairperson: Point us now to that one specific question. Adv Mpofu, please point us to what you want him to refer to, to respond to if it is in his presentation.

Adv Mpofu: Chairperson, do you want me to continue with this exercise?

Chairperson: I want you to assist us because that will take you forward.

Adv Mpofu: Then let me ask my question. I am asking a very simple question.

Chairperson: You have asked that question more than three times.

Adv Mpofu: It has not been answered.

Chairperson: He answered the question in the way he understood it.

Adv Mpofu: What was the answer?

Chairperson: He said to you that it is about the removal of the Public Protector from the office.

Adv Mpofu: That is not what I asked him.

Chairperson: So, what is it that you are asking? Can you point us to it in his presentation or not?

Adv Mpofu: I am not pointing to anything! I am asking a question! I am saying I can't believe how simple the sentence is, like: Did you fly this morning from Johannesburg? Yes, or no? And in simple terms: Did you say this morning that section 194 concerns an office and not a person?

Mr Ebrahim: I said very clearly that it is a question of the removal of a person from the office, section 194(6).

Adv Mpofu: Okay. And let me remind you again, sir, for the purpose of the process, the job here is to assist the Committee, not to be evasive, not to try to assist or not assist any side. It is simply to come and assist. So really, you are the one witness for whom the answers should be very easy because you are just helping all of us, I thought. But it is fine. I give up on that question. Now. Whatever you said or did not say this morning, do you accept now that these proceedings concern a person, not the removal of an office?

Mr Ebrahim: I accept that.

Chairperson: So just a pause, Mr Ebrahim. Hon Mulder.

Dr Mulder: Adv Mpofu is suggesting that we are here to remove an office. That is what he has just said. Read what section 194 says about removal from the office. Nobody said removal of the office. I do not understand what's going on.

Adv Mpofu: That is true. The witness said, and you will be embarrassed when you read what he said this morning, which is that section 194 does not concern a person; it concerns an office. He said it or he may not have said it, or whatever. But when you read the record, as I say you will be embarrassed. At least one of us will be when the record speaks for itself. But it is denied. And now it is also being denied on your behalf. But the record will speak for itself. Now, if we then agree that it is about the removal of a person, right, then you also agree that the suspension of that person must be done in accordance with section 194?

Mr Ebrahim: That is correct. Yes.

Adv Mpofu: And you also agree that if there is noncompliance with that section that would affect the fairness of the process.

Mr Ebrahim: If there is noncompliance with section 194(3)?

Adv Mpofu: Yes. It would have an impact on the fairness of this process. Now, what if there is an unlawful suspension or premature suspension of a person, then the process itself would be tainted by that illegality, would it not?

Mr Ebrahim: I do not agree.

Adv Mpofu: You do not agree?

Mr Ebrahim: I do not. They are two separate issues. If I may explain, sir.

Adv Mpofu: But they are all…they're both contemplated in section 194(3), no?

Mr Ebrahim: That is correct, but there are two separate issues. The suspension of the Public Protector in terms of 194(3)(a) is quite different to the question of dealing with this as a resolution concerning the removal from office.

Adv Mpofu: How can that be if the suspension is dependent directly on the process for the removal?

Mr Ebrahim: The issue really is the suspension takes place at any time after the start of the proceedings. So, if the Committee had started working, it would be sufficient to allow for that suspension to come into operation.

Adv Mpofu: And if the removal proceedings have not started?

Mr Ebrahim: If the Committee had not started working, that would be sufficient.

Adv Mpofu: No, do not talk about work. This is not about work here.

Mr Ebrahim: After the start of proceedings, once the Committee …

Adv Mpofu: If proceedings have not started.

Mr Ebrahim: Suspension should take place after the start of the proceedings of the Committee,

Adv Mpofu: Thank you. And we know that because as we have just heard in that section 206, that what you have called the institutional predetermination has to happen before. If you go to paragraph 179. That same judgment demands that, for the impeachment process to commence, the Assembly must have determined that one of the listed grounds, exists. Do you agree with that?

Mr Ebrahim: Yes.

Adv Mpofu: So, until the determination of the existence of the grounds has been finalised, the impeachment process or removal process cannot commence. Agreed.

Mr Ebrahim: Yes.

Adv Mpofu: Thank you. And if it does not commence, then you also cannot suspend before its commencement, correct?

Mr Ebrahim: Yes, the Committee has to start.

Adv Mpofu: Thank you. That is all I wanted to establish on that score. And you would agree that what we call the institutional determination stage is where we are now, on the existence of the ground?

Mr Ebrahim: The institutional grounds predetermination has already taken place.

Adv Mpofu: Oh, when was that?

Mr Ebrahim: I thought that took place when the definitions were identified in terms of what the definitions of misconduct et cetera were.

Adv Mpofu: Again, I have asked you a simple question: when was that?

Mr Ebrahim: It was already taken up in the document that was put together.

Adv Mpofu: In December 2019 when the rules were adopted.

Mr Ebrahim: The rules, yes.

Adv Mpofu: That would be 3 December 2019. Well, I am just telling you, that is when the rules were adopted. So, you are saying the removal process started after that?

Mr Ebrahim: Ah, I do not know when they were adopted.

Adv Mpofu: Assume I am correct that the rules are adopted on 3 December 2019. So, in your expert analysis, that is when the proceedings started?

Mr Ebrahim: Yes.

Adv Mpofu: Thank you. And you seriously think that is what Jafta meant: there must be an institutional determination of the existence of the grounds?

Mr Ebrahim: Yes.

Adv Mpofu: I think for this work, we will continue, but I think it could even stop right here. So effectively, then there was no need for this judgment of the Constitutional Court because all that needed to happen would have been four rules which define what serious misconduct is in the case of Section 89.

Mr Ebrahim: Do you mind if I read to you what the document says?

Adv Mpofu: Yeah, you can do that but you must first answer the question first,

Mr Ebrahim: In paragraph 93(3), this is what was said. I have my document that I submitted to you. 'Under the Constitution, only the National Assembly may remove the President from office. The Constitution does not define the grounds of impeachment, including what constitutes serious misconduct. And there is left the details of those definitions to the National Assembly. However, the Constitution's intent was not to leave the definitions up to the individual Members as there would be divergent views on what amounts to serious conduct. Accordingly, there must be an institutional predetermination of what constitutes serious misconduct'.

Adv Mpofu: But even I agreed a few minutes ago that the institutional predetermination of the existence, whether it is misconduct or serious misconduct, encompasses an inquiry to do that.

Mr Ebrahim: It does not necessarily encompass an inquiry. No, the predetermination is not an inquiry. It is a definition of predetermination that the Committee has to apply its mind as to what constitutes misconduct and that has been defined.

Adv Mpofu: All right. Now that is fine. We will come back to that,

Chairperson: Before you continue. So, Mr Ebrahim, that has been defined in the rules of the National Assembly, as you read to us, has it?

Mr Ebrahim: Yes.

Adv Mpofu: Like you said, on 3 December 2019 the decision was made. Assuming I am correct on the date.

Mr Ebrahim: If I may just be clearer. Paragraph 92.5 of my submission, it is headed definition of misconduct. It says: The Removal Rules define the concept of ‘misconduct’ with reference to ‘gross negligence’ and ‘intention’, which forms of fault are not prescribed by the Constitution. This, however, is entirely permissible. So, the definition of misconduct had to be specified and that was included in the Removal Rules.

Adv Mpofu: No, no, I understand. I think we are together. I think it was the Chairperson’s emphasis that was confusing. I was saying that you and him and I say then that the predetermination happened with that event on 3 December 2019. Agreed.

Mr Ebrahim: I am not aware of the exact dates, but that is what I submitted.

Adv Mpofu: And according to you, seriously, that is what the Constitutional Court meant when it says the following: ‘Without accepting that one of the listed grounds existed.’ Just that. Does that in your estimation, involve an inquiry or not into the existence of that ground? Not the definition, not whether it actually exists? In other words, whether there is misconduct or gross misconduct or whatever. Yes?

Mr Ebrahim: Yes, the issue there was that there was no predetermination of the definition, and it was identified and the grounds itself had to be clearly specified yet...

Adv Mpofu: I think just to be fair; I will give you a second chance at this one. You are seriously suggesting to this Committee, that when the Constitutional Court says there must be a determination of the existence of a ground, that simply means that definition, not the inquiry into the actual existence, the establishment, of the ground. That is your evidence?

Mr Ebrahim: My evidence is that there must be predetermination so that there be a common understanding of – in the rules – what would constitute misconduct.

Adv Mpofu: You've already said that that is the definition. I am saying once that is done, you cannot authorise a commencement of a process which can result in the removal without establishing that the ground exists. And I said to you, “Underline the word ‘exists’.” You are sticking with your version that it is not an inquiry.

Mr Ebrahim: I am sticking to my version. The point here is that there has to be a predetermination of the definitions of what is construed. And then the committee starts and once the committee starts, the suspension can take place.

Adv Mpofu: Yeah, but what committee? I mean, when they adopted the rules on 3 December 2019, there was not even a complaint. You are saying that even before there is a complaint, the existence of the ground can be determined.

Chairperson: I am sorry, Adv Mpofu. Mr Herron.

Mr B Herron (GOOD): I am sorry, Adv Mpofu. It is important to get the paragraph on the screen as we did with the previous judgment.

Adv Mpofu: Yes. Okay, the one I am reading now, Mr Herron?

Mr B Herron (GOOD): The 2018 case at 170?

Adv Mpofu: No, no, I started at 171. I am reading 205 to him now. Okay. [Sighs]. Mr Ebrahim, as I said, I gave you a second chance just to be fair. And you are saying you are sticking with your answer. I asked you to read paragraph 179. Just go to the next one, paragraph 180 where it is clear that what you are saying is wrong. It says: "Therefore, any process for removing the President from office must be preceded by a preliminary enquiry, during which the Assembly determines that a listed ground exists. The form which this preliminary enquiry may take depends entirely upon the Assembly. It may be an investigation or some other form of an inquiry. It is also up to the Assembly to decide whether the President must be afforded a hearing at the preliminary stage. Do we now at least both agree that the predetermination involves an inquiry?

Mr Ebrahim: Yeah, just having a look at 180.

Adv Mpofu: Take your time. I am saying take your time,

Mr Ebrahim: Thank you very much. What 180 says is fairly clear. It says: Therefore, any process for removing the President from the office must be preceded by preliminary inquiry during which the Assembly determines that the listed grounds exist. The form upon which such a preliminary inquiry may take depends entirely upon the Assembly.

Adv Mpofu: You have just read what the judgement says. That is not my question. My question is, do we now agree, between you and me, that that institutional predetermination involves some form of inquiry on the existence of the ground?

Mr Ebrahim: I think we are referring to two different things. Here we have heard that the court is referring to a preliminary inquiry. It says there must be a preliminary inquiry during which the Assembly agrees that the grounds exist.

Adv Mpofu: Let me make this simple. Do you accept, just generally, as a human being, that the existence of a ground for anything, whether it is in labour law or whatever, is determined only by an inquiry?

Mr Ebrahim: No, not necessarily. No. Why? Why would that be the case? The existence of a ground could be based on a complaint. There was a complaint that there was misconduct which clearly states: This is a ground; there was misconduct. It is based on just that and then the ground does not require inquiry to determine that.

Adv Mpofu: Okay, let us use that analogy of yours. So, the complaint, let us say I go and complain at the police station. And I say, so and so assaulted me, that is the complaint. And then we say now, there must be a determination of the existence of that criminal grounds of complaint. Can that be determined without any form of inquiry, or trial, or whatever?

Mr Ebrahim: So, I think you are conflating two things, in that one is the predetermination. The predetermination relates to a very clear requirement, which is that the Constitution does not define misconduct. The Assembly is called upon to define that. And that is where the predetermination which you are referring to takes place with regard to section 180, which is really the inquiry. So, the inquiry is based on a complaint; it is based on the definition. The Constitution identifies clear grounds on which there could be a removal and those relate to misconduct and serious misconduct, depending on which you look at. What the Constitution requires of the National Assembly is for a predetermination to take place, and that predetermination requires a definition of what misconduct really would mean. And that that took place. That predetermination took place in terms of the rules. What you are referring to in this, is not a question of the predetermination. It does not talk about the predetermination; it talks about the inquiry, which is subsequent to the predetermination of the grounds.

Adv Mpofu: That is what is referred to in 180 in your estimation; it is different to that which is referred to in 178. This must be a predetermination of serious violations of the Constitution. It then says: For the impeachment process to commence, the Assembly must have determined that one of the listed grounds exists. Do you understand the difference between existence and definition or are you saying there is no difference?

Mr Ebrahim: It says that since a determination of these matters falls within exclusive jurisdiction of the Assembly, it alone is entitled to determine that. This means that there must be an institutional predetermination of what a serious violation of the constitutional law is, which is the need to provide the definition of a serious violation. Yes? The same must apply to serious misconduct; it must define in the predetermination what serious misconduct is and that should be in the rules; and the inability to perform the functions of the office, that can speak for itself. Yes?

Adv Mpofu: Okay. I promise you, we are going to move on now, because I do not think we are going to make any headway. I shall give you a last chance. And when I read this, you must concentrate on the two words ‘exist’ and ‘establish’. So, the next paragraph: "[179] For the impeachment process to commence, the Assembly must have determined that one of the listed grounds exists. This is so because those grounds constitute conditions for the President’s removal. A removal of the President where none of those grounds is established would not be a removal contemplated in section 89(1)." Do you agree with that? Are you also saying that that establishment of the existence of a ground simply means its definition. Are you seriously saying that?

Mr Ebrahim: Yes, there needs to be the definition of misconduct and it says that the misconduct needs to be set out. And that is what was set out in the rules. It is a predetermination of what they are; you cannot hold that inquiry without actually doing that.

Adv Mpofu: Without establishing the existence of the ground?

Mr Ebrahim: Without establishing what misconduct means.

Adv Mpofu: Can you do it without establishing the existence of the ground?

Mr Ebrahim: Existence of the ground is quite a separate issue because the grounds identified the basis for removal – identified what isn't identified in the Constitution. It is a definition of what it means, what misconduct really means, and therefore the Rules the National Assembly had to predetermine what misconduct means. And once you have done that, at least you could then proceed.

Adv Mpofu: Thank you. Now I understand that part of your answer. We've gone through it ad nauseam

Chairperson: Adv Mpofu, just a little pause. Apology. Mr Ebrahim, once those rules were concluded, what was the next step?

Mr Ebrahim: What happened? The inquiry takes place; the National Assembly is entitled to pursue the inquiry.

Chairperson: Do you mean the panel?

Mr Ebrahim: No, not the panel; the committee established by the National Assembly to ensure an inquiry takes place. Section 193 has reference.

Adv Mpofu: Are you seeking clarity by asking something the witness did not say?

Chairperson: I am seeking clarity, please conclude. Thank you.

Adv Mpofu: Unfortunately, I have to ask you these questions, Mr Ebrahim, and, unfortunately, we need to make sure that this Committee cannot say it did not know – you know the Nuremberg defence - whether it is involved in illegality or not, I am saying to you a simple question: Do you agree that there cannot be a removal process without establishing the existence of the grounds, not its definition? The existence of the misconduct, the incompetence, the incapacity, as defined. Let us assume the definition already happened 100 years ago. Do you accept that? There cannot be a removal process without establishing the existence of that ground that was defined?

Mr Ebrahim: All that is required in terms of the constitutional process, is that a committee needs to be established, dealing with an inquiry based on the allegation that there had been serious misconduct.

Adv Mpofu: Yeah, that is true. But then to accept that until that Committee makes a finding as to the existence, or otherwise, of the alleged ground, then that removal cannot take place?

Mr Ebrahim: I am not sure what you are referring to. But I shall tell you what the Constitution says. I can read it for you. It says: "The President may suspend the person from the office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person". It doesn’t talk about anything else. Once the committee has been established, for the removal of the person, the suspension can take place.

Adv Mpofu: So now you are changing your evidence.

Mr Ebrahim: No, I am not.

Adv Mpofu: No, let me tell you why; to assist you. You are saying two different things and I shall assist you by giving them dates. The definition of the of the offences, for lack of a better word, was done on 3 December 2019. The establishment of this Committee happened on 16 March 2021. Those two dates cannot be the same. Do we agree on that? Now, which of those two dates are you saying; which are you talking about when you say there was a predetermination of the grounds?

Mr Ebrahim: Once the rules were established defining what misconduct was, that was the predetermination that was required and it then offered the National Assembly the opportunity to institute and establish a committee, which would be referred to in 194(3)(a).

Adv Mpofu: And that committee, its job is to determine whether the alleged grounds for misconduct exist?

Mr Ebrahim: No. You are reading something into it, which I cannot read in the Constitution. The Constitution is very clear: it says a President may suspend a person from office any time after the start of the proceedings of a committee of the National Assembly for the removal. If the Committee has been established, at any time after the Committee has been established, the President may proceed with the removal. However, what we have agreed is that the Committee needed the predetermination of what constitutes 'misconduct' to be in the rules; and that was clearly set out in the rules.

Adv Mpofu: I’ll read to you what it says in the rules, and then you tell me if that is the same thing. So the Committee must when the National Assembly has approved the recommendations of independent panel in terms of rule 129, proceed to conduct an inquiry and establish the veracity of the charges and report to the Assembly thereon. Do you understand that? ‘Establish’ that is the word I said you must underline when I was reading. The constitutional court judgment establish the veracity of the charges.

Mr Ebrahim: I am sorry but which rule are you referring to?

Adv Mpofu: I am sorry – it is rule 129(a)

Chairperson: Yes, Mr Mileham?

Mr K Mileham (DA): I am trying to follow here and I am perhaps not understanding clearly. I really want to understand the nature of your question, Adv Mpofu. Are you suggesting that for the suspension to take place, the Committee has to make a finding first, is that what you are trying to lead up to? Or are you suggesting that there is some point in the Committee process that the suspension can take place? I am trying to understand where you are going with this?

Adv Mpofu: That is a good question. That is where I am going. Yeah, you are right. Am I establishing whether there must be a determination or finding or whatever you call it? Yes.

Mr K Mileham (DA): Thank you. So, the Advocate is suggesting that this Committee must make a finding before a suspension can take place?

Adv Mpofu: Not the Advocate; it is the Constitutional Court that says that there must be an institutional predetermination of the existence of that ground.

Mr Mileham: Yeah, I understand what the Constitutional Court says, and the Constitutional Court speaks specifically to the removal; it does not talk to the suspension. My question to you, Advocate, is whether or not this Committee has to make a finding before a suspension can occur?

Adv Mpofu: Yes, that is what I am saying.

The Chairperson: Okay, thank you, Mr Mileham.

Adv Mpofu: Do you understand the issue?

Mr Ebrahim: Yes, I understood the issue all along. The point is I do not agree with it.

Adv Mpofu: You did? Okay! Do you also not agree then with the following sentence – you do not agree with the Constitutional Court or with me: "Equally, a process for removal" – that answers what Mr Mileham has just said – "of the President where none of those grounds exists would amount to a process not authorised by the section". Do you agree with that, at least?

Mr Ebrahim: Yeah. The issue is really the ground. It would refer to the definition of what misconduct is; not the fact that it exists.

Adv Mpofu: So, when Judge Jafta says, ‘Well, none of those grounds exist’, he was just what…hallucinating?

Mr Ebrahim: No, you are referring to two things; you are conflating two issues: the definition of what the ground is, and the inquiry related to that.

Adv Mpofu: Okay, thank you. I think that is helpful or unhelpful as it can be under the scope. But I do not think it is going to help us. Now, we were saying before lunch, let us do this comparative analysis between the role of the Public Protector and the role of a judge. Now, it is true that, and I think it is contained in your statement, that to some extent the role of a Public Protector is similar to that of the judge.

Mr Ebrahim: No, I pointed out very clearly to you in Bishop and Woolman and you will see the paragraph is very clear. Can I remind you what it said?

Adv Mpofu: It says the opposite of what you are saying now. You'll find it in your paragraph 24.

Mr Ebrahim: 24. Bishop and Woolman describe the Public Protector’s office in the following terms: ‘The Public Protector’s purpose is profitably compared with the role of the judiciary. Courts handle discrete disputes about law and conduct. They rely on correct procedure and solid, sometimes intricate, legal argument. Courts are simply not designed to handle the large number of complaints that arise from simple misunderstandings or bureaucratic red-tape, nor do they lend themselves to the resolution of injustices that turn more on unfairness than illegality. The Public Protector occupies a middle space in the politico-constitutional landscape. It serves the public and assists the courts and the legislature. It assists the courts by addressing those complaints about the administration of justice that fall beyond the court’s purview. It assists the legislature by monitoring the performance of the executive and answering those complaints that elected representatives are unable to address.’ (Ebrahim, H. p10)

So, it is very different. So, when you profitably compare, you see that you are dealing with different things, so that the comparison is about the difference? Not the similarity.

Adv Mpofu: Okay. Let me ask it differently. Do you agree that the Public Protector, similar to the courts, also deals with the administration of justice?

Mr Ebrahim: There is no question about it but they deal with different parts of the administration of justice. The Public Protector will deal with unfairness and the courts will deal with illegality, compliance with law and the difference is the Public Protector is dealing with administration of justice.

Adv Mpofu: They do. Okay, good. And to that extent, the Public Protector assists the court. Thank you. That is all I wanted to say. So that is the first point of intersection. Secondly, you also agree that the remedial action of the Public Protector is binding as are court orders, correct?

Mr Ebrahim: Yes. And can only be challenged on judicial review. Correct. No question.

Adv Mpofu: And thirdly, you would agree that there is no other constitutional public office holder who is protected from contempt, that is, somebody going to prison for contempt. The only persons who have that constitutional protection are judges and the Public Protector.

Mr Ebrahim: Judges do not, courts do. So, there is a distinction. The Public Protector [protection from contempt] is not in the Constitution, it is in the Public Protector Act, under the subheading: Contempt of the Public Protector.

Adv Mpofu: So, judges are not protected by contempt.

Mr Ebrahim: It is the court that is protected.

Adv Mpofu: Yes, I know.

Mr Ebrahim: You can have contempt of court proceedings.

Adv Mpofu: Yes. Are judges not protected by the offence of contempt.

Mr Ebrahim: I am clear about the offence of contempt of court. I am not sure if I quite agree about the contempt of a judge.

Adv Mpofu: Okay, so if you insult a judge, and if you insult the Public Protector, you go to jail.

Mr Ebrahim: If you insult the Public Protector, you are clearly going to go to jail in terms of the Act. I am not aware of the offence [of insulting a judge]. Perhaps you could enlighten me?

Adv Mpofu: Have you ever heard of a case called State v Mamabolo? Okay, it is not necessary to know that particular case. But your evidence is seriously that if you insult a judge, then you are not within the ambit of contempt?

Mr Ebrahim: No, that is not my evidence. My evidence is that I am not aware of that. I am clearly aware of the offence of contempt of a Public Protector. And that is in the Public Protector Act, which is an unusual effect.

Adv Mpofu: Yes, not only is it unusual, it is unprecedented. I am saying that. That is a protection that is given to the Public Protector uniquely?

Mr Ebrahim: Correct according to my understanding.

Adv Mpofu: I am just trying to assist you so that next time if you ever testify as a witness, you should know that.

Chairperson: Where are we now?

Adv Mpofu: In terms of geography?

Chairperson: You do not respond to me like that when I am asking you a question. You are now saying you want to assist him in the next case he appears in. I mean, the kind of language you are using consistently is becoming disrespectful.

Adv Mpofu: What question? Am I asking you a question?

Chairperson: About geography. What has geography to do with the question that I am asking, which is very specific.

Adv Mpofu: I do not know what you are asking. I am trying to understand the question

Chairperson: I will not repeat that question.

Dr Mulder: We all have lots of things to do. If you want to assist the witness, for future reference please do not waste our time doing so.

Adv Mpofu: That kind of language, you will allow it?

Chairperson: No. He is asking you not to waste our time. It is important to perhaps indicate how far you are and what kinds of questions you are going to be putting forward.

Adv Mpofu: If you go to section 9(1)(b), the Public Protector…

Chairperson: Before you proceed. Adv Mayosi?

Evidence leader: Adv Mayosi: Before you proceed Adv Mpofu, could you perhaps give us the citation for S v Mamabolo?

Adv Mpofu: I shall give it to you later.

Chairperson: You do not have it?

Adv Mpofu: No, I can find it. It does not work like that. If you need a citation, it means you must wait for it. Then you have to wait for it, but you tell me I mustn't waste time, which is it? I can find the citation but if you are in a hurry…

Chairperson: Do you not have a team?

Adv Mpofu: The team is not sitting on S v Mamabolo. Do you want us to wait for the team to find it?

Chairperson: Honourable Dlakude?

Ms D Dlakude (ANC): Thank you very much, Honourable Chairperson. I think this Committee is the Section 194 Parliamentary Enquiry. In Parliament, when we are doing our work and you quote something, you should distribute the documents to all Members so we can read from what you have quoted. But if you do not have that, please do not quote it because we have nothing to refer to. Thank you very much.

Adv Mpofu: Thank you. Remember, that is exactly why I did not quote that case. But thanks.

Chairperson: Can you please proceed with your questions?

Adv Mpofu: Yes. Section 9 says that no person shall insult the Public Protector or Deputy Public Protector. Do agree that refers to a person, not to an office.

Mr Ebrahim: Yes. Okay.

Adv Mpofu: And then it says, "9(1)(b)in connection with an investigation do anything which, if the said investigation had been proceedings in a court of law, would have constituted contempt of court". Now the simple question I was really asking you is on a reading of that section, would you agree that, in terms of contempt, it equates the Public Protector to a judge.

Mr Ebrahim: I do not think I can agree with you. You are referring to a court of law, i.e. proceedings in a court of law. Then if that had been in a court of law, it would have constituted contempt for the court.

Adv Mpofu: In other words, if the person you were insulting was not a Pubic Protector but you were now standing in front of the judge?

Mr Ebrahim: Basically, if I understand it clearly, it merely refers to the fact that no person shall insult the Public Protector or Deputy Public Protector. It is fairly basic – you cannot insult the person.

Adv Mpofu: Yeah, that is fine. We will deal with that, at the end. I am leaving that question so as not to waste time. And I think the section speaks for itself. But now we agree that the powers of the Public Protector are very wide?

Mr Ebrahim: That is my submission. Yes.

Adv Mpofu: It is difficult, if not impossible to define the limits of the Public Protector.

Mr Ebrahim: The Public Protector is defined by the only two limits and that would be the question of two years, and the Public Protector is not allowed to question a decision of court.

Adv Mpofu: To investigate a court decision. But apart from that, the powers are extensive and limitless.

Mr Ebrahim: I will take extensive, yes.

Adv Mpofu: When I say limitless. I mean, this is obviously in terms of the rule of law.

Mr Ebrahim: It's extensive.

Adv Mpofu: Yes. But to agree that, apart from being extensive, the limits are not easy to define.

Mr Ebrahim: There is no definition. Yes.

Adv Mpofu: And that is important because some of the charges here relate to whether those powers were exceeded in certain cases. And in certain cases, whether they were not practiced. I do not want you to get into the merits. I am just telling you the importance of the question. Now, the question for you is whether the Public Protector has the ability, for example, if a complaint comes, to extend the scope of the investigation, or if necessary to limit it.

Mr Ebrahim: The Public Protector may not extend the investigation.

Adv Mpofu: Really? Have you read the Mail & Guardian judgment?

Mr Ebrahim: The Public Protector may not extend investigations beyond the state into the affairs of private entities.

Adv Mpofu: Sorry, okay, let me ask you a simple question. Don’t worry about beyond or whatever. Do you agree that the Public Protector has the capacity to extend the scope of a complaint?

Mr Ebrahim: I do not think so. The scope of it? No, I do not think so.

Adv Mpofu: So, does the Public Protector not have the discretion to extend the scope of a complaint? Okay, does she have the discretion to limit it?

Mr Ebrahim: I suppose if there were reasonable grounds to do so, and which were justifiable, yes.

Adv Mpofu: If there were no grounds to extend?

Mr Ebrahim: If there were reasonable grounds to extend, that that could also be done.

Adv Mpofu: I am giving you this background. One of the key charges here is about the so-called CIEX matter. Are you familiar with that? That is the one about the ABSA lifeboat and the big issue by those here is that the Public Protector’s remedial action would have necessitated the amendment of the Constitution. You must remember that, even maybe from the media, if you haven't read the case. Remember that? You must say yes for the recording.

Mr Ebrahim: Yes.

Adv Mpofu: So that is it. Thank you. You do agree that the extensive powers of the Public Protector may even extend to those matters which may necessitate a constitutional amendment?

Mr Ebrahim: No, and I shall tell you why. According to the Constitution, our definition of an organ of state would be no encroachment of powers between the organs of state. Yes, there could be remedial action. And I believe that the Public Protector has a right to issue remedial action. Yes.

Adv Mpofu: Must be a different question. I am saying if she issued remedial action that might necessitate constitutional change, would that be misconduct in your opinion?

Mr Ebrahim: Chairperson, that matter goes into the merits of the case; I really want to steer clear from the merits of the case. It is not my remit. It is not my brief. It is a matter that is really beyond.

Adv Mpofu: But you told us the whole morning about where the powers can be circumscribed. So, it is too late now to…

Chairperson: Are you indicating that you are not in a position to answer that?

Mr Ebrahim: No.

Chairperson: Thank you. Continue, Adv Mpofu.

Adv Mpofu: You are not in a position to tell us whether the extensive powers – which we have agreed might be needed on reasonable grounds – may or may not include issues which might require a constitutional amendment.

Mr Ebrahim: No.

Adv Mpofu: And just generally, to your knowledge as an expert of some sort, other administrative bodies can make proposals that involve constitutional amendments without being impeached?

Mr Ebrahim: Constitutional amendments can be raised by Parliament or bodies outside. There is no question of that, including the Public Protector as the Public Protector can make a submission, that there ought to be an amendment of the Constitution, just like anybody else in the country can.

Adv Mpofu: No, I think that is very helpful. And then, you agree that also the Public Protector should not be held responsible for legal advice – whether it is correct or not correct is another matter? Do you also agree that the Public Protector should not be held responsible for legal advice that she might obtain from lawyers, whether external or internal lawyers?

Mr Ebrahim: She should not be held responsible for that? I am not sure what your question is.

Adv Mpofu: Would you agree that if the Public Protector in good faith accepts legal advice, that is not her fault?

Mr Ebrahim: The Public Protector is required to be a person with at least ten years of legal experience and as a legal expert is required to be familiar with the law. The Public Protector is required to have familiarity with the law, and therefore on the basis of that if the Public Protector wishes to accept a view, then the Public Protector does it in her own right as a legal expert. It is not a question of fault, but she has taken the decision to accept that legal advice and adopted it.

Adv Mpofu: I do not understand that answer.

Mr Ebrahim: The Public Protector is required by law to be a lawyer of substance, to be regarded as a senior legal officer and that senior legal officer obtains legal advice. As a senior legal officer receiving that advice and adopting that advice, there is no legal question about it if the Public Protector has adopted that advice. Is that what you are asking? Whether the Public Protector may accept advice from a legal adviser?

Adv Mpofu: I think that is the problem. That is not my question. Do you accept that

Dr Mulder: I am just trying to assist. I think the question is, is there certain legal advice that the Public Protector may receive from certain legal experts that she should rather not accept or not be responsible for?

Mr Ebrahim: I am not aware of any compulsion to ignore legal advice.

Adv Mpofu: Yeah, okay. Well, that was Mr Mulder’s question. Let us come back to my question. What I am saying has nothing to do with ignoring legal advice. I am asking you a different question. Do you accept that if the Public Protector receives legal advice, and implements it in good faith, and that legal advice may have come from senior counsel or external people or even internal people, then she is entitled to implement that advice, if she accepts it in good faith? Simple.

Mr Ebrahim: There is no reason why not. As I said the Public Protector is regarded constitutionally as an extremely senior legal officer, and having adopted a particular legal advice, that would be it.

Dr Mulder: To get to the question – is Adv Mpofu suggesting that if she accepts senior legal advice and acts on that advice, that she would not be responsible?

Adv Mpofu: Are you addressing me?

Dr Mulder: I shall just repeat the question. Yes, I am addressing Adv Dali Mpofu. I shall try again. I am trying to get behind the gist of your question. Yes. As I understand it, the question is: if the Public Protector receives legal advice, and she acts on that advice and the advice is wrong, she would not be responsible. Is that the gist of what you are trying to say to us?

Mr G Hendricks (Al Jama-ah): Chairperson, I told you yesterday, I have a quarrel and today I have another quarrel. I cannot understand why you allow Mr Ebrahim Patel to be questioned by the advocate when he says he is not an expert and then starts questioning him as if he is an expert. I can't come around that. It is not right. Secondly, I mentioned the fact that it costs our fiscus R1 million a day for legal costs. We cannot really drag this to two years. We have already gone two days. I do not want to listen to experts and people saying they are not an expert. I want to get to the veracity of the allegations to be tested. Why do you not, Mr Chairman, put the allegations before us, give the version and get the Public Protector to have her so-called say in court and get to an answer to that. Why are you dragging this? Why are we involved with procedural matters? Let us get to the crux of the matter.

Chairperson: Thank you, Mr Hendricks. I understand your point and I sympathise with it. That time will come. There are certain steps that we've got to navigate and go through. We have the first witness in front of us who has taken us through a comprehensive presentation on that institution and that office. It is in the nature of such hearings that not everything that is going to be engaged on will be palatable and what you expect, but we will get to that point. We will start tomorrow with witnesses on some of these issues. So, I want to thank you, Hon Hendricks. Mr Nqola.

Mr X Nqola (ANC): I just want to say it is Mr Ebrahim; it is not Mr Patel.

Chairperson: That is okay. There is an Ebrahim Patel. So, he might be confused, so please forgive him for saying that. Adv Mpofu, back to you and I am hoping that you are closer to wrapping up.

Adv Mpofu: No, I am not. Do you agree with this sentiment which was expressed by the Constitutional Court, or not: "We may criticise the Public Protector for failing to realise that the legal point she was obviously advised to advance was a non-starter. But can we really go far with that criticism? I think not. She got that advice from senior counsel. Of importance, we do not know whether the Public Protector has any experience in civil legal practice. And the Commissioner did not suggest that she does. That for me is the end of the matter."

Chairperson: Just before you respond, Mr Ebrahim. Adv Mayosi?

Adv Mayosi: If we could just have the citation so that we can put it up. And the page, please.

Adv Mpofu: Yes. It is Commissioner for SARS v The Public Protector, 2022, volume one 370 Constitutional Court cases, paragraph 50.

Adv Bawa: Is it the minority judgment?

Adv Mpofu: The unanimous majority judgement of Madlanga.

Mr Ebrahim: I thought we were waiting for judgment to come up. Are you asking me to apply my mind?

Chairperson: We will flag it.

Mr Ebrahim: Adv Mpofu, may I assist you with one point, which is the rules with regard to the question of legal knowledge and so on. The definition of incompetence is as follows in terms of the rules. It is concerned with both a lack of knowledge and ability or skill to discharge the functions of the office.

Adv Mpofu: Are you talking to me? What question are you answering?

Chairperson: Let us say, Mr Ebrahim, you are talking through the Chairperson, you are not talking to him. He is responding to your question, Adv Mpofu, and I do not appreciate that kind of questioning you are doing. He is responding to a question that you put to him. When he responds, I do not know why you would come with such a reaction to his response.

Adv Mpofu: Which question is he answering?

Chairperson: You just asked him whether he is talking to you and I am correcting you. Now whatever you do next, you are going to be speaking through the Chair as you ask questions. Please proceed.

Mr Ebrahim: Chairperson, what I was referring to, in response to Adv Mpofu’s question on legal advice, was merely referring to the rules on legal advice and what to do. I was merely referring to the rules which define incompetence. The rules define incompetence in the Removal Rules which are concerned with the duties of the Public Protector. It is concerned with both the lack of knowledge and ability or skill to discharge the functions of office.

Adv Mpofu: Now can you answer my question, which is: Do you agree with the sentiment expressed by Madlanga J. That if the Public Protector has accepted legal advice from senior counsel, that should be the end of the matter.

Mr Ebrahim: I am not sure. The end of the matter, meaning what? The Public Protector is entitled to receive whatever advice the Public Protector gets. Whether Public Protector is responsible for the advice is quite a different story.

Adv Mpofu: No sir, I am talking about criticizing or blaming the Public Protector. I shall read it again. "We may criticise the Public Protector unfairly for failing to realise that the legal point she was obviously advised to advance. But can we really go far with that criticism?" In other words, will that criticism be valid? "I think not. She got advice from senior counsel. Of importance, we do not know whether the Public Protector has any experience in civil legal practice. And the Commissioner did not suggest that she does. That for me is the end of the matter." Do you agree with that sentiment? Not every letter and every comma, but with the sentiment expressed by the Constitutional Court? Or do you differ with the Constitution Court totally?

Mr Ebrahim: I have a different view.

Adv Mpofu: And if you had to choose, do you agree that you'd have to choose the view of the unanimous Constitutional Court?

Mr Ebrahim: There is no question that the court decision is binding. You asked me a different question. You asked me whether I agreed with the sentiment. I do not agree with the sentiment.

Adv Mpofu: I am asking a different thing now. I do not know why you are going back to the previous question. I am saying: Do you agree that - since you do not agree - the Committee should prefer the view of the unanimous Constitutional Court to that of you or me?

Mr Ebrahim: Without a question.

Adv Bawa: I think to have been fair, Adv Mpofu should have put the entire paragraph 50 to the witness.

Adv Mpofu: Okay, good. I could do the entire judgement. Okay. No, no, that is fine. I have no problem.

Chairperson: Mr Luzipo. Dr Lotriet. Mr Nqola.

Mr S Luzipo (ANC): Just on a point of procedure. As a committee of Parliament, we were told that we have no right to make an opinion on a matter that is of another arm of the state; in this case, that another constitutional arm cannot be subject to the legislature. I am worried and I want to check with the advocate, if what he was referring to is a judgment of the court and if it is a court judgment, what is the recourse of this Committee in expressing an opinion on a judgment of another arm of state, the judiciary? I am just doing it for the sake of the Committee, maybe we can get some advice. I fear a situation where it means we may have to develop an attitude on what has been raised. Will it be fair for the Committee, a separate arm of state, to agree or disagree with a view that agrees or disagrees with a judicial outcome? That is the only area on which I would need clarity, so that we do not end up encroaching on an area that is not ours. Clearly, that is not a parameter for a legislature.

Adv Mpofu: There are three quick issues that you raised. The first one is the settlement that was raised by the evidence leader yesterday, which, remember, I disagreed with, where she said, court judgments are binding on the Committee. And I said it in the context that the Committee cannot be bound in the same way as a court. But obviously, a court judgment is a court judgment. So that is the first level. This second level is that the Committee is not called upon to express any opinion on those judgments and actually, the issue arising is very serious, because it goes to the core of why we are here. You will remember, if you read the independent panel report, that there is only one charge to do with a Mr Samuel that is not based on a court judgment. So, the whole thing is based on court judgments. So, there is that issue. Then the third issue, which simply is even more serious is the issue of sub judice, which I think is what you are alluding to as well. I must confess, I am also worried about that because, for example, not only this thing that we are discussing, but all these other issues about the starting and not starting and then getting systems off the ground and so on. We all know, and I reported yesterday, that those issues are going to be debated in court on the 25th and 26th. So, I think that concern can only be in that category. The first two, I think we are fine. But as to whether the issues about this Committee continuing when the matter comes [to court] in two weeks’ time on the interpretation and the conflict and all that, that is not my area.

Dr A Lotriet (DA): Thank you very much, Chairperson. I am very concerned because it has happened quite a few times now that reference is made to specific judgments and paragraphs. This puts this Committee at distinct disadvantage. We do not have context because it is easy to cite from a particular judgment, but we do not know what the whole case was about. So up to now, this morning, Mr Ebrahim focused on a document that we were presented with earlier and we could prepare, but now new cases are being mentioned. I have quite frankly felt very disenfranchised here that I cannot assess it and I cannot take the most out of whatever Adv Mpofu says.

Mr Nqola: Mine is different. Adv Mpofu started with cross examination before lunchtime, went to lunch and now we are at about a quarter to 4pm. After the cross examination, about 20 Members of Parliament must be given time to cross examine the witness. It looks like we are moving at a snail’s pace and that may delay the Committee and disrupt the programme. So, I just wanted to alert you to the issue of time management and, although you must balance it with allowing a fair chance to everyone to cross examine the witness. I think we must be conscious of the time we are taking.

Chairperson: I think both yourself and Dr Lotriet require my response, which I will do. Adv Mpofu, I have been urging you to wrap up your questions to Mr Ebrahim.

Adv Mpofu: No, that cannot be, Chairperson. I cannot wrap up without covering the area that he covered in his 70-page document, that is what cross examination is.

Chairperson: I am talking about wrapping up at least by four o’clock. I am expecting that you would have wrapped up with your questions. And any questions that you will not have been able to pose can be put to the witness later on at another time. From tomorrow, according to the programme that you yourself engaged with, witnesses have been lined up. We are still going to meet as a Committee to deal with the issues of directives and so on. So, I am urging you to please prioritise what you want to put forward.

Adv Mpofu: I misunderstood, thinking you said I must finish, but if I do not finish at four, I do not finish. Then we will make arrangements as you said.

Chairperson: Before you proceed – Mr Mulder.

Dr Mulder: Just to come back to the paragraph you referred to. I just want to make sure we have the full paragraph.

Adv Mpofu: Actually I wanted to say to Dr Lotriet that this case is actually not a new case; it was referred to by Mr Ebrahim in his document.

Ms O Maotwe (EFF): I have been listening to my learned colleagues and I do not want to find ourselves in a situation where we want to deny advocating for the opportunity to cross examine. Mr Ebrahim had the whole time in the morning and he was not interrupted. But I have seen a lot of impatience now that Adv Mpofu is speaking. Maybe he is asking difficult and uncomfortable questions but that is why we are here. And what informs the four o'clock? If we have to sit until the early hours of the morning, so be it, but let us allow him a fair chance. I do not agree that we should mind if we finish after four. We are Members of Parliament; we agreed to be part of this Committee. This Committee cannot be dictated to by time. If we have to sit, let us do it but let us allow Adv Mpofu to ask questions. It does not matter how uncomfortable they are and the people that come here to witness or to speak, they must know that they're going to be asked uncomfortable questions. We are not here to nurse anybody's feelings, but to assist this Committee to come to a conclusion of whether there are any grounds for anything on the Public Protector. So, I think let us, let us play fair, including yourself, Chairperson, and be patient with the advocate.

Chairperson: I have already indicated to the advocate that we expect him to wrap up by four. If there are outstanding questions, we will look into that. I have already stated that. Do not take us back.

Ms J Mananiso (ANC): One wants to indicate that there is a programme before us and whatever is happening today, happened yesterday – we confined ourselves to ten o'clock to five o'clock, so Ms Maotwe must not be opportunistic. I would want just to ask Members to confine themselves to that which we have before us.

Chairperson: Ms Maotwe, I am warning you. Ms Siwela.

Ms V Siwela (ANC): I am covered by the latter speaker, but let us stick to our programme, I believe we have agreed with Adv Mpofu. He has also agreed that we can we really want him to do his work, but at the same time, must respect our programme was adopted it

Adv Mpofu: The confusion is that the programme said five o'clock. Now, you have also testified about the Public Protector’s mandate that must be carried out without fear, favour or prejudice, with the emphasis on fear. Let me ask a leading question, would you agree that it would most likely come from those that she is investigating?

Mr Ebrahim: I think that has been cited very clearly by the courts. And in all the documentation and in the certification judgment, which is why the court required a supermajority for the removal, because the Public Protector takes decisions regarding the executive and those in power may be affected. So, there should be no fear.

Adv Mpofu: And in the EFF Nklanda case, the court went even further by describing her as the biblical David, who has to fight Goliath. And also to investigate even those in the chambers of power or the most powerful, including the President.

Mr Ebrahim: No question about it.

Adv Mpofu: And you would agree that, therefore, part of the protection that is required for the Public Protector would be if she is investigating powerful persons, such as the President, who might have been able to wield an axe, metaphorically speaking.

Mr Ebrahim: The only authority that could wield the axe is the National Assembly, because the Public Protector is accountable to the National Assembly. It is only the National Assembly could wield an axe and that requires a two-thirds majority of the National Assembly.

Adv Mpofu: Okay. Were you in the country on 9 June 2022?

Mr Ebrahim: Yes.

Adv Mpofu: Are you aware that the President from that date suspended the Public Protector? Would you say that those persons she is investigating who might have the capacity to mete out punitive measures against her, would include those from whom she must be protected?

Mr Ebrahim: No, I do not agree with…

Adv Mpofu: So she must not be protected from those she is investigating. I am simply trying to rephrase the question so that you can understand it. I am saying that those persons from whom she must be protected, who she might have reason to fear, would include persons that she is investigating and who have the capacity to cause damage?

Mr Ebrahim: The Public Protector is entitled to protection against anybody and everybody and should be allowed to undertake any activities or responsibilities. That does not preclude any other authority taking action against the Public Protector provided it is within the course of law. There is nothing wrong with that.

Adv Mpofu: You are not answering my question. I am asking you, on the basis of the known facts. Firstly, I agree with you that the Public Protector is accountable to the National Assembly. Here we have a unique, very unique situation. You have said earlier on, that the Public Protector is answerable exclusively to the National Assembly. Is that correct? You have also said that, ordinarily, there should be no encroachment of the executive into that domain. Agreed?

Mr Ebrahim: Correct.

Adv Mpofu: Yes. This is the issue here. I do not think it is appreciated. One of the Members said this thing is simple but it is not. That is the furthest thing here, given that scenario of exclusive accountability. The National Assembly needs to prevent any encroachment by the executive. We have section 194(3)(a) which does the exact opposite at face value. It gives what is called by the Constitutional Court, the ultimate accountability mechanism – like section 89. Now, in that ultimate accounting mechanism, the constitutional writers introduce a member of the executive called the President. That is why this idea that the two things have nothing to do with each other beats me. We have a situation where the constitutional writers say, in the middle of this ultimate accountability mechanism, the President who is a member of the executive may suspend, in other words, may cause some damage to (I am using that term loosely) to the Public Protector. You understand that principle as a constitutional scholar, or at least as a constitution maker, you understand that unique set of circumstances?

Mr Ebrahim: Yes. You are conflating again two things. One is the person. And the second is the Office. If there was an inquiry by the Public Protector against anybody, that inquiry does not die because there has been a suspension or whatever; the work carries on.

Adv Mpofu: It carries on how?

Mr Ebrahim: The Public Protector exists, it functions. The Public Protector is entitled to proceed with whatever activities it is proceeding with, without affecting the person.

Adv Mpofu: But there is one Public Protector in South Africa and that person is Adv Busisiwe Mkhwebane. You agree.

Mr Ebrahim: The activities do not die because of suspension. You cannot equate the two because the Office is open. The Office still exists so the functioning of the Public Protector is continuing. If there were legal matters or investigations that will be undertaken by the Public Protector’s Office, it has nothing to do with the suspension. We are conflating the two inappropriately.

Adv Mpofu: You are answering a question I have not come to. I am coming to it so you can relax. I have asked you a very simple question. Do you agree that we have a unique circumstance where, in the midst of the so-called ‘ultimate accountability mechanism’, in the face of the fact that the Constitution says the Public Protector accounts to the National Assembly, the Constitution has introduced a member of the executive in that process to do a suspension. That is all really. I do not know what you are talking about. We are coming to these things about what happens in the Office and so on. Just answer my question.

Mr Ebrahim: I am not sure if I understand your question. I really do not understand the question.

Adv Mpofu: Okay, I shall simplify it even further and that will be my last attempt. You and I agreed that what triggers the suspension is whether the process to further the removal proceedings have started, correct?

Mr Ebrahim: Yes, sir. Yes.

Adv Mpofu: Now, I am saying that intersection between the activities of the inquiry and the activities of the President, both of which belong to two separate arms of the state is a unique conflation of the accountability mechanism where there is an introduction of the executive. Surely that must be clear?

Mr Ebrahim: I do not agree with your argument.

Adv Mpofu: Okay. You know that the President is a member of the executive and this Committee is made up of members of the legislature. That is correct. Now section 194 clearly mentioned both in one breath. Yes?

Mr Ebrahim: Yes.

Adv Mpofu: Now I am saying that if two arms, which should theoretically stay apart are mentioned in the same sentence, in the same breath, in a particular section of the Constitution, the one basically triggering the other to act, you do not think that is a unique situation under the topic of separation of powers

Mr Ebrahim: No.

Recording stopped as all electronics were shut down due to load shedding. The Committee continued after a break.
Late Afternoon/Evening Session
Chairperson: Members, this session provides you with your opportunity to ask questions of the expert witness, Mr Ebrahim. You know the rules that are applicable here.

Mr M Mahlaule (ANC): There has been a discussion on the distinction between a person and the institution called the Public Protector. Now, when you turn to Mr Ebrahim's document on paragraph 37.3: “for this reason, the fathers and mothers of our Constitution conceived of a way to give even to the poor and marginalized a voice, and teeth that would bind corruption and abuse excruciatingly, and that is the Public Protector. Now what follows there is “hers”. Is there a particular reason why you use “hers”? The reason I am asking is that I want to understand what we are talking about when we speak about the Public Protector, are we talking about the person or the institution? And that would be linked with paragraph 53 which says that, at all times, the Public Protector must not put personal interests over and above the public interest, and not put personal interests above those of the Office of the Public Protector and the mandate of the office. What is the distinction between those interests? Are they the same? Are they the same interests: that of a person and that of the Public Protector? What makes me ask this question would be another point you made, I think it is paragraph 89, the heading says: “A particular individual’s incumbency must be separated from the constitutional office”. You said you can even take it further to say it is very important to protect the office from the incumbent. If you expand on that, it will assist us to understand your distinction between a person and the office.

Please also express yourself on the logic of the courts when they order costs saying this is a cost to the person of the Public Protector, and sometimes the Office of the Public Protector. I appreciate that you're not in court here. Just give us your personal opinion. Paragraph 95.5 speaks of the requirements of effectiveness and efficiency and it outlines certain measures saying: The requirement of ‘effectiveness’ requires the Public Protector’s conduct to be measured against the objective of the Public Protector achieving what the Constitution and the PP Act require her to achieve. The requirement of ‘efficiency’ requires conduct to be measured against the extent of resources (time, personnel, money) it required to achieve the Public Protector’s mandate. Both requirements necessitate a consideration of the outcomes of the Public Protector’s conduct. Adv Mpofu yesterday said that the Public Protector achieved two clean audits and it has become a norm that in South Africa, when you achieve a clean audit, we say you and your office are efficient,. Would you agree in that context that this is the case in the Office of the Public Protector?

Mr Ebrahim: Chairperson, there is quite a few questions packed in there. Primarily, the first few questions, were related to the distinction between the office and the person. I think, in most instances, we conflate the person and the office by speaking about them in the same breath. Properly speaking, proper drafting would require us to use gender-neutral terms when referring to a Public Protector, so as not to stipulate one gender or another. We must separate the person from the office, because the office does not end with the person. In between when there is a change of office after one term is over and another term starts, reports continue, work continues, the office continues to work; the office does not come to an end. So, the office should not be conflated or confused with the person. It must be quite clear in the way in which the judgment was drafted and referred to the person. I think, in some instances, judgments and legislation could more profitably be referred to in gender-neutral terms rather than referring to them in a particular gender. Now, the question of efficiency versus effectiveness, I think that it is a fairly important question. The effectiveness is really the ability to act in a way in which one delivers on one's strategic objectives, whereas efficiency really deals with the way in which one deals with financial resources, so those are two distinct and separate issues. When it comes to an audit, the audit typically suggests that money was well spent; it doesn't necessarily suggest that money was spent on the right things. It says that money was spent in terms of the Public Finance Management Act, and depending on the scope of the audit, that will determine really the nature of the audit. An audit is dependent on the scope of the audit that is undertaken. Based on the scope, the Auditor-General carries out an audit and if there is a clean audit, it means that money was spent in terms of what was required. It is a happy occasion and one that must be respected.

Chairperson: Mr Herron, address your questions for the witness. Hold back the ones for Adv Mpofu.

Mr Herron: Mr Ebrahim, you provided quite a lot of detail about what a fit and proper appointment as Public Protector would be and then you have a checklist of 47 items that the Committee should consider. I just want to be clear that the grounds for appointment, which includes being a fit and proper person, are not really related to the grounds for removal, which must be either misconduct, incompetence or incapacity. I wanted to be clear that the long explanation about a certain person; I am just wondering what relevance it has to misconduct, incapacity, or incompetence. My second question relates to the powers to expand an investigation and in paragraph 68.4 this refers to that as something that the Public Protector cannot do and that relates in your document to the executive ethics code, a breach of the Executive Ethics Act. How does that align with some of the other positions in your submission on seeking out the truth; that the truth has to be discovered (paragraph 61); that the report must be accurate; the report must be meaningful and reliable. You also cited a nice paragraph about what an open mind means. If you're an investigator and you're pursuing something, and the pieces don't fit, you keep going until they eventually do make sense. Doesn't that require you to expand the investigation if that is where the investigation leads you to? So, the rule on expanding the investigation is that confined to the Executive Ethics Code? Or even in the Executive Ethics Code can it be expanded if the truth takes you somewhere? I am struggling to understand your position on the predetermination process, where you say that the predetermination process is making out the words that define what misconduct is. I would imagine that a predetermination would be finding that there is a prima facie case to be answered and that would require some sort of inquiry process. So, I am wondering how you see the role of the independent panel that conducted a documentary inquiry, and then presented the National Assembly with a recommendation that there was a prima facie case to be made and whether that didn't constitute a predetermination.

Mr Ebrahim: I think a generic requirement in the Constitution, and most constitutions, for the appointment of legal officers is that the person must be fit and proper. You'll find it in all pieces of legislation. It is not just in our jurisdiction; it is in all jurisdictions. The beauty of what has taken place and what is arising out of the litigation that has taken place is that the court has been asked to apply its mind to different aspects and facets of what is 'fit and proper' and the jurisprudence is very useful in defining and delving into the definition of that. It is quite a separate issue from the question of the removal. Now, you refer to the long list I provided. What I think is of value here and what I hoped was coming out was that this Committee would have access to the requirements for a Public Protector based on the Constitution, legislation, rules, and jurisprudence. You find a long list of 47 issues, whether it be coming out of constitutional legislation or jurisprudence. It is merely a guide to the Committee. My own view is that it provides the National Assembly with kind of a checklist, not only should you need to appoint a new Public Protector; you now have a very clear understanding of what type of conduct you want and what type of person you are looking for; but also, in monitoring, so the points provide you with in-depth knowledge. It is basically a knowledge management exercise.

The question of expansion of the investigation is not a fait accompli, but an investigation can be expanded with lawful justification. Remember that the court spoke about an open mind. Where you have an open mind, and you are undertaking an investigation that leads you to further issues, those are issues that you are required to apply your mind to. That is what is meant when we look at the question of an open mind.

On the question of predetermination, my understanding was that in the context that we were talking about there were no grounds because they required definition. You could not proceed or start an inquiry, and in that inquiry, try to define what misconduct was. It had to be predetermined, and it had to take place before the inquiry started. Hence, the National Assembly went ahead and produced a set of rules, which then defined the question of what those grounds were. It gave meaning and depth to what the Constitution identified as the grounds for removal.

Dr Lotriet: Mr Ebrahim, earlier you pointed to your submission, in reply to Adv Mpofu, on the comparison between a judge and the Public Protector. In paragraph 40, you say the appointment of the Public Protector is materially different from the appointment of judicial officers. Would that form part of your interpretation of whether this comparison between the Public Protector and judges is not the same? Secondly, about liability and who takes ultimate responsibility – this matter was also raised yesterday. In paragraph 79 you refer to the Public Protector as the one who takes ultimate responsibility for decisions. Would that be an all-encompassing responsibility or would that be limited to a certain extent? Lastly, in the 47 points you made for the Committee to take into consideration, at paragraph 100.44, you refer to the action of an investigation and that it may not be expanded without lawful justification. Now in your submission, you refer to a narrowing of an investigation to the extent that it becomes meaningless. Is there a specific reason why that is not included in the 47 points?

Mr Ebrahim: Chairperson, I will start with the last one first, because it is the easiest. What I raised and identified came out of jurisprudence and legislation and the Constitution. As much as the expansion is possible with lawful justification, I would imagine the same applies to the narrowing. There is no reason why it shouldn't be. Yes, the Public Protector, in the hierarchy of the office, assumes final responsibility for decisions in that the law vests authority in the Office of the Public Protector, and so the incumbent is required to apply their mind to the requirements, and that is the decision that will be taken. Liability is generally where there is liability on the Public Protector in general, it would be in turn be for the office. In general, where the Office of the Public Protector attracts liability, it will be the responsibility of the Office to settle it. However, the court applied its mind to something quite different. It applied its mind to areas where the court found that there were a series of errors, errors of judgment, mistakes, and incompetence, and for various reasons found there was a basis on which the judgments or cost order could be accorded not just to the Office, but to the person. It is a more punitive measure and it is something that the courts adopted.

The question of judges versus the Public Protector - I am not sure whether that is a fruitful sort of investigation to pursue. Both the Public Protector and judges occupy a space within the administration of justice, except for the fact that judges are confined to the space which deals with law and conduct. The Public Protector occupies a space in administration of justice when it comes to public service, which may be related to finance or any other conduct, e.g. bad service, capricious activity in its broader aspect, and it is part of administration of justice because people are aggrieved by the conduct of some organ of state, and therefore, seek redress, which the Public Protector provides. So far as what the Public Protector can do in some instances is remedial action, negotiation, mediation, and so on. Those are matters which judges and courts don't often deal with. They often stop at the point at which deciding on a case based on the law, premised on procedure, very strict procedures, and so on. They will issue an order of court and that is the end of it. They will not, per se, deal with remedial action or negotiation or find methods in which to find redress. So I think that the two are quite different offices, but occupying broadly the same space within administration of justice.

Mr Mileham: Thank you, Chairperson. Mr Ebrahim, I want take you to Section 194 of the Constitution. There are two references to a committee in that section. The first is section 194(1)(b) which requires a finding of the committee. Is this Committee the committee that would generate that finding? Secondly, with regard to Section 194(3)(a) where it talks about a committee for the removal - again, is this the Committee that is referred to in that section, noting that this Committee has no removal power as that decision ultimately rests with the National Assembly and the President?

We heard yesterday, and I am paraphrasing here, Adv Mpofu said that the Public Protector was not involved in all the investigations, and thus could not be held personally responsible for any failures that might arise in those investigations, particularly with regard to, and we heard again today, where she takes legal advice, as she cannot be held responsible for incorrect legal advice. Do you agree with that sentiment? And if so, could you expand on why you agree with that sentiment? I don't really want to open up a whole new can of worms here, but I feel like we need to close this matter conclusively. You spoke about the predetermination. Adv Mpofu spoke about the need for, in his words, a determination that the misconduct or the incapacity actually exists on the part of the person before there can be an inquiry. Now, and this goes, I think to what the Mr Herron was trying to get to. There were a couple of different events that happened. The first was the rules were drafted on 3 December 2019, and they were accepted and they define what misconduct and incompetence look like. We then move forward to the independent panel, which makes a finding that there is prima facie misconduct and/or incompetence. Then we move forward to this Committee, which is now taking evidence and hearing various points of view on the matter. My question is: at what point does the removal process start? Is the removal process when the motion is tabled in Parliament? Is the removal process when the independent panel commences its work? Is it when it concludes its work? Is it when this Committee is established? When this Committee concludes its work? Is it when its report is tabled in the National Assembly? I am trying to figure out in your mind at what point in that continuum, the start point of the removal process is.

Mr Hendricks: We heard an expert view that when we exercise, for example, our votes, it must be in the interest of the institution and we don't follow the party line, and we don't fear that the caucus will discipline us. Secondly, we will not pop champagne corks. So that was a clear message. Do you still stand by that position because that is going to guide us going forward? Members must act without fear or favour and think of the institution and not the political party. I am sorry that Members will lose out on champagne but I think you need to send a very clear message to the nation as far as that is concerned. Adv Bawa made a very strong point that the Office of the Public Protector is intended to serve the poorest of the poor. It is my view after listening to the Roman-Dutch law, the British colonial law, the Latin words, Adv Bawa, I would like to ask the expert: is that a pipe dream and the end of this Chapter Nine Institution in its original inclusion in our Constitution?

Mr Ebrahim: I start with the last point first because I think that what is really appropriate is the voice of the people and the Constitutional Assembly – the Constitution makers – developed or established institutions that they believed would serve the interests of the poor. The world is in agreement with the perspective adopted by this Constitutional Assembly. I can assure you of that, because I work in the international community. Many countries are emulating the approach and watching very carefully what you do, and the decisions you take. So it is being observed with great interest throughout the world, and admired and respected only because there is nothing to compare. South Africa has undertaken an approach which the world believes is the appropriate approach and people believe in the function of a Public Protector and, certainly, it is being adopted by many countries in their own constitutions. So the answer is no, it is not a pipe dream. But I don't believe that, in as much as 1994 did not yield the fruit of the Freedom Charter or whatever else, we would still like to follow the dream and the hope we would like to pursue. The Public Protector and serving the interests of the poorest of the poor will be an ongoing exercise until finally there will be no poor to serve. But yes, it is still a viable function and the world is in agreement, and supportive and respectful of what you're doing.

On the question of political party, dealing with the approach to an important institution like the Public Protector, is not an ideological issue. It is not a party political issue. It is an institutional issue because the Public Protector is a creation of the Constitution, and therefore objectively occupies a role and space in our body politic that must be respected and appreciated. It does not come out of an ideological set of ideas. So when one deals with the Public Protector, whether it is appointment or removal, then Parliament deals with it in terms of what is in the best interest of the people, not in the interest of your party political perspective. When this Committee applies its mind, it should apply its mind not on the strength of a party political perspective, but in what is in the best interest of the people.

The first point Mr Mileham raised is section 194 and at what point does the work start the removal. Does it start with the establishment of the Committee referred to in 194(1)(b) which is a committee that makes the finding to the effect that there needs to be a removal. There is enrichment of the Committee's formal start of the process. The fact that you have applied rules, those are normal methods that the National Assembly would have to apply its mind to as part of its predetermination. So it will fathom out the definitions and details for the removal process, but that is a set objective. The establishment of the committee is very specific. I think those are important. On the question of investigations and the person, is it the person of the Public Protector?

Mr Mileham: My question related specifically to the fact that the Public Protector was not involved in all investigations personally. And the suggestion put forward was that she could not be held responsible for any failures that might arise from those investigations. And then I went one step further and asked if the Public Protector receives bad legal advice and reports that have bad legal advice, could the person of the Public Protector be held responsible for that bad legal advice?

Mr Ebrahim: The first part of your question is fairly clear, because an investigation undertaken by the Office of the Public Protector doesn't necessarily have to be personally undertaken by the Public Protector who cannot deal with each and every of the many cases the Office undertakes. So the Public Protector is very much an office and an institution that has loads and loads of cases that they will deal with. The Public Protector personally cannot assume responsibility for each and every case. However, those cases must be undertaken under the auspices of the Public Protector and, therefore, the Public Protector is the person who will come to Parliament and say, I have undertaken so many cases. It does not mean that the Public Protector has dealt with each and every case individually, and can answer to each and every case. But essentially, the report of the office is done under the auspices of the Public Protector and therefore it is regarded as the Public Protector’s responsibility.

Mr Ebrahim: The question of legal advice is quite a different story. If the Public Protector seeks support from different service providers, whether it be legal advice or any supply chain item or whatever it is, at the end of the day, it is the question of how one deals with the implications of the legal advice and to what extent the Public Protector can assume responsibility. I don't believe that one can, in one brushstroke, suggest that either the Public Protector is totally responsible or totally not responsible. But I do believe that the Office of the Public Protector assumes responsibility for whatever decision is taken by the Public Protector and one would have to actually delve into the effects of it as such. I would like to make a follow up to ask the advocate when Parliament is taking a resolution to establish …

Chairperson: You will be given an opportunity to ask Adv Mpofu questions when we are done with this session. If you've got any questions to the witness, I will give you an opportunity to ask.

Mr V Zungula (ATM): My question is addressed to the witness on Parliament taking a resolution to form a Section 194 committee to establish the fitness of the Public Protector to hold office, according to you. Is the inquiry to establish the fitness the same as removal? Is it not two different processes? Is this an inquiry or is this a removal process? Which process has been done to determine the fitness? That is my first question. The second question would be on the principle of fairness. Is this process not proceeding in a way that is outside the other processes that may have been taken by the Speaker, or by the President of the Republic? Therefore, is it fair that the process continues, whereas there are other grounds which are still going to be ventilated in a court process as to whether they are rational and correct to do so? So should this Committee proceed under that cloud where the courts are yet to decide on a matter that is going to affect this process, meaning the suspension of the Public Protector?

Mr Ebrahim: My understanding and opinion is really that Parliament was entitled to establish this committee, as per section 194(1)(b), for purposes of undertaking the consideration as to whether Parliament should adopt a resolution for the removal of the Public Protector. So that process, in my opinion, is a perfectly legitimate process and it has been undertaken in terms of the Constitution. There are no difficulties with that. The question of Parliament taking a resolution on the establishment of the committee, I think it is the appropriate resolution as several steps that were taken before. The one step that was undertaken was the rules and the predetermination of a definition of what misconduct is all about. That is one process that took place. The second part of the process was an inquiry by a panel, related to the question as to whether there was a prima facie case. This process is a specific one; it is in terms of 194(1)(b); and it is also appropriate. I believe that this Committee is properly vested with the opportunity to consider the merits and arrive at its recommendation to Parliament on the resolution Parliament ought to take.

Dr B Holomisa (UDM): I am happy that the Constitutional Court has, in one of its judgments, said that people can be fallible and make mistakes. I also heard you, during cross examination by the advocate, say that you don't fully agree with some of the court judgment, given the Zondo Commission's findings, which have pointed fingers to the misuse of public finances. Even President Ramaphosa has accused his colleagues in this regard. We are meeting to deal with some of the charges. One of the charges against the Public Protector refers to a project that attempts to investigate the CR17 funding. Right now, nobody knows whether state funds could have gone into the CR17 campaign. So for this Committee to be clear, we may have to call the President because maybe some of the judges made a mistake, because the public interest is still there. People want to know, not necessarily to say funds came from so and so private company, but to make sure that public funds have not gone to CR17. Read this with what the Zondo Commission has said, and even the President himself. Lastly, would it be possible for this Committee to invite the President, just to make sure that everything is above board because we are not going to succeed if we are going to ask the Public Protector and grill her alone, based on the court judgment, which might have been a mistake. We want to know from the President, who must take us and the country into his confidence.

Mr Ebrahim: It is a fairly simple answer from my point of view in the sense that it deals with the merits of the case. This is a matter for the Committee to decide in terms of the terms of reference and how it wishes to undertake its work. How the Committee decides on matters is something that is totally outside my purview, and my brief. I am afraid I am not able to answer that except to say that this Committee is able to take all decisions that are required relating to the charges this Committee has to undertake. How it wishes to investigate those issues is dependent on what directives are Committee issues? So I believe that as a member of this Committee, Gen Holomisa is entitled to raise the issues and for the Committee to decide as is appropriate on the matter. It is not a matter that I could have an opinion on it. It is something totally out of my brief.

Ms Maotwe: We have sat here the whole day with the experts. In his first paragraph, Mr Ebrahim says he was approached by the evidence leader for the purpose of providing assistance in the contextualisation of the Public Protector within the constitutional framework of South Africa. Now, having gone through the day, it is becoming very clear, that he is actually not an expert, and I am saying this with the greatest respect, how does Mr Ebrahim think this is assisting this Committee to arrive at some conclusion on its fact-finding mission? The second question is on paragraph 99.2 on removal. It says: “Engaging in a process in terms of section 194 of the Constitution is a critical means of ensuring accountability and the rule of law. It is in the public interest for the process to be final.” Can you advise us or provide guidance about which process you are talking about that must be final? What does it mean when it says it must be final? The other question is on section 194 of the Constitution. Would you, Mr Ebrahim, say that we are not yet dealing with the DA motion, which speaks about the removal of the Public Protector, because this Committee is not dealing with the removal of the Public Protector. What do you think the impact will be of the upcoming court case of Adv Mkhwebane? What do you think will be the impact if the court finds in favour of Adv Mkhwebane? What guidance would you give to this Committee in that regard? The last question is if you want to you can comment on the fact that the Public Protector was suspended immediately after she confirmed that she was investigating the Phala Phala farm.

Mr Nqola: I am not sure if it is fair for the witness to answer a matter that is before a court of law. I want to allay the fears of the Committee on that matter. I am not sure if I am right or wrong.

Chairperson: Thank you. Your order is not sustained. I proceed to Mr Ebrahim. I am actively watching for anything. I will listen to his responses, including in terms of Rule 88 of the National Assembly on reflections.

Mr Ebrahim: I'll start with paragraph 99.2 and the question of this Committee undertaking a process in terms of section 194 as a critical means of ensuring accountability and the rule of law. The question was raised as to whether it is in the interest of the people that the process be final. The issue is that it would be inappropriate for the constitutional health of this country to leave matters as serious as a matter relating to the Public Protector, a senior officer, to leave it dangling and lingering for too long. It will be inappropriate, especially to the poorest of the poor, and people who are expecting relief from the Office of the Public Protector. As soon as matters of this nature can be resolved would be in the best interest of the constitutional health of this country. So finality is always an important one. It is it would be inappropriate to leave matters like this to linger for too long because I think it is harmful.

What is the Section 194 Committee doing? I think your rules, your terms of reference are fairly clear about what the Committee has decided on. That is not something that I have applied my mind to except for the fact that the Committee is established in terms of section 194(b). I believe that the way in which the Committee would apply its mind and complete its work is something that will be up to the members of this Committee in terms of how it decides to undertake its work and deliver on its mandate.

Mr Nqola: I think the first question posed by Mr Mahlaule asked about the significant difference between the Public Protector as a person and an institution as a Chapter Nine institution has been covered. It was even used in the document Mr Ebrahim prepared for us. It speaks about two things: the Public Protector as a person and the Public Protector as an institution. The second issue has been taken care of because we discussed that yesterday. It speaks about the time we declared the Committee on section 194(4) had resumed its work. Section 194(1)(b) speaks about the Public Protector and the Auditor-General, as a member of a commission established by Chapter Nine who may be removed from office only on a finding by a committee of the National Assembly. Section 194(3)(a) says the President may suspend the person from office at any time after the start of the proceedings of the committee of the National Assembly for the removal of that person. Both sections mention a committee of the National Assembly. Are they referring to the same committee? Section 194(3)(a) talks about a suspension by the President, whether it be the Auditor General or the Public Protector that is subject to a parliamentary inquiry. I want to check to what extent this Committee gets involved in the suspension part of Section 194? Does it fall within our jurisdiction to discuss an opposing view around it or does it remain solely an issue that resides within the powers of the executive?

The second point I would like to pose is that part of the document that you have deposed says the Public Protector must not only discover the truth, but must inspire public confidence that, in each investigation, the truth has been discovered. I want you to elaborate, not only for us but for the South African people as well, what does "must inspire confidence” mean?

Another issue is the three arms of state established by the South African Constitution, namely, the judiciary, the legislature and the executive. Now, because you were one of the constitutional drafters, maybe you will be able to tell us the intention of having the three arms of government and what was the intention of their operations in terms of how cooperative they should be amongst each other, all three of them. The CV you attached to the affidavit which dates back to your experience in constitutional drafting; the education you have been able to acquire, particularly in the field of law; the experience you've been able to amass as a public servant, domestically and internationally; the number of years which you have been doing this – does that alone not qualify you as a person with expert opinion in matters of this nature?

Mr Ebrahim: I have been told that I should not be unnecessarily humble about these matters. The point is I have more than 25 years’ experience in the field of constitution making and constitutions and I do believe I have substantial knowledge and expertise which has been appreciated by international organisations, being the United Nations, and several other international organisations, and many governments have been happy to receive advice from me. So in that regard, I should, and do, regard myself as an expert.

You ask a very wide ranging question on the intention of the Constitution about the three institutions of government. If you look at what the Constitution did, when it established the democratic dispensation, effectively it created a new executive and a new legislature but did not change the judiciary, which by and large remained intact. It did not abolish it as it did parliament and the executive and several of the other institutions. The three institutions of government continued in terms of the new constitutional dispensation under a new mandate, specifically to try and implement the new dispensation. But the cooperation with which the branches of government were required to interact, based on the Constitution, required what was defined in the chapter on cooperative governance. It is something not contemplated, entertained or considered before. It is novel, it is new, it is something I think the government is still trying to come to grips with in terms of how to deal with it. Cooperative Governance and cooperation between, not just the three branches of government, but the different spheres of government at the vertical level and the horizontal level, is something that is ongoing and continuing.

The question of truth inspiring confidence is something that you can refer to, whether it be for the police, the courts, or other institutions of government, and state. The way in which institutions of government undertake activities must necessarily inspire confidence in people. However, the Public Protector is a particular case in point because the Public Protector does serve the interests of the poorest of the poor, and therefore special attention must be given to the Public Protector in inspiring confidence. When this Committee looks at oversight of the Public Protector’s Office, my own view is that one of the key issues you would want to have in mind as a member of this Committee, is what the Public Protector does to ensure that inspiration of confidence. Those are parts of the conversation that you will undertake with the Public Protector as part of your normal oversight functions. I am led to believe that it is an important question of how you go about inspiring confidence as a mandate and a brief that I hope this Committee, or the National Assembly, will consider as part of its engagement and discussion with the Public Protector in terms of section 194(1)(b). I think can sense the confusion that has been going on about 194(1)(b). My understanding, as I said before, and I want to repeat here, is that I believe that 194(1)(b) is what Committee has been established for, and I hope it will be successful in the work that it undertakes.

Your first question relates again to a question that has come up over and over again, because there has been significant confusion around the Public Protector versus the person occupying the office, and it is still a matter of some confusion. I am certain that the discussion today has not solved and addressed the issue. Hopefully, this Committee will apply its mind to trying to gain clarity about this, because it is an important matter in how one deals with the Public Protector from a point of view of the person occupying the office and the Office itself. Much of what you have referred to deals with the institution itself, in terms of what the institution is required to do. There is another part of what the Committee deals with, which is really not the institution per se, but the person occupying the office. I think that there is a distinction between the two matters that needs to be considered much more carefully.

Mr M Shaik Emam (NFP): I know it is a late hour, and I will try to be as brief as possible. Let me first of all say, we are quite confident and convinced that you have the necessary expertise and qualifications. Given the fact that you have relevant qualifications and you've been in the public sector, you will understand and appreciate the concern raised, particularly from party political perspectives. I think you will agree with me, hardly ever, barring one case in Parliament or the National Assembly, has anybody ever voted against the mandate of their political party. That raises the question of objectivity and independence. I'd like you to comment on that. I do think the ideal situation is that you have to be independent and you have to do the right thing, but the question is will that happen.

Would you agree with me that at the time the Public Protector applied for this position, we went through the entire process, looked at her CV, her qualifications and her experience and found her to be fit for purpose, the ideal candidate and appointed her. I am sure you're going to agree with me on that, and I think you have agreed that she has the necessary qualifications. There is no doubt about that. Will you also agree with me that, from time to time, like Parliament and all structures including government departments and many others, the Public Protector seeks opinions from senior counsel or other legal experts before certain decisions are taken and implemented? You will also agree with me that there have been many instances in the country, and Parliament is one ideal example, of how many matters have gone to court and have not been able to succeed. If you look at matters where, after the judgment, the matter went on appeal, and it was overturned, and we have this all the time. To err is human, there is no doubt about it; we can often make mistakes. I agree with you when you say that the Office of the Public Protector has a responsibility to ensure there is no improper conduct, with high levels of ethics and accountability. Now the question is at the moment in this country only 18 out of 257 municipalities have a clean audit, and here you have the Office of the Public Protector, in terms of accountability and governance. There have been many instances in the country of decisions taken, based on legal experts and outside opinions, that have failed or did not succeed, and I am talking about the courts, to a very large extent. I feel that there appears to be some obsession with the Public Protector herself, in wanting to only deal with the Public Protector, and not the many others, who may have cost us a lot of money, and who are not doing justice to the position they have. The question is why Parliament is going only for the Public Protector when there are so many others.

Could you explain to us why a two-thirds majority is needed to remove the Public Protector from office? And if that is the case, which I agree with, then should it not be the case for the Committee when it reaches its findings? Maybe you need to clarify that? Are we supposed to make recommendations to Parliament or not? Should the report we are going to give not also be approved by a two-thirds majority because, otherwise, we are defeating the purpose because not everybody has sat on this Committee? I think it will only be fair that we go to the route of ensuring a two thirds majority decision on the report we are going to have for Parliament itself. Despite all the discussions on the responsibilities of this Committee, it is to not clear what we are going to do. What do we give to Parliament? And what is the next step after that? Normally what happens is a Committee makes findings and makes a recommendation, and then gives a report to Parliament and the report is adopted and implemented. I am not sure in this case, if this is exactly what the situation is going to be. So maybe you should give us clarity on that.

Mr Ebrahim: A whole host of questions have been asked but to do some justice to them, let me start with the last one. The findings of this Committee must go to Parliament and in terms of the rules of Parliament; I believe it is very clear that it does not require either a secret ballot or a two thirds majority. It requires a decision in terms of the rules and there'll be a majority decision and that the minority views in this Committee should also be recorded, so that the National Assembly has access to that. That is my reading and my understanding of that so I don't believe a two-thirds majority is required here. But a two-thirds majority in Parliament is required as a supermajority to succeed with the removal of a Public Protector. Of course, we can all agree that mistakes have been made in all aspects or areas of government and one could legitimately ask why one institution and not another institution, but that is not a good argument. The fact that Parliament and the executive have failed insofar as other institutions are not being called to account is quite a different matter from this Committee's responsibility.

That is a matter that Members of Parliament should undertake in Parliament to say, we are not undertaking our work as Parliament effectively and so Parliament must ask those questions of itself why it is not taking up that work, but it is not the work of this particular Committee and this Committee should not find itself occupied by that. As to whether there have been mistakes? I think mistakes have been made throughout government. Nobody's denying that one. The question is how one deals with it and that is a matter for Parliament, but not in this particular context, in the broader context.

Seeking opinion of senior counsel, I think we have been through that one several times in terms of who bears the costs, how it is done and what the outcome is. I think many institutions have sought legal counsel in different respects and some counsel has been good; some has not been good. I think perhaps it may beg the question as to how we go about securing supply support services, whether it be senior counsel or whatever other support is required, legal or otherwise, and how one profitably utilizes the meagre state resources available to us. The question on whether the Public Protector was fit for purpose is not a question that one can answer now, because the Public Protector was appointed on that basis and we have long passed that; we have long passed the fact that a Public Protector was appointed and regarded as fit for purpose and there has been no issue, in my understanding, related to that. What is at stake is a totally different story.

The first question concerns decisions taken along party lines. I have seen debates and discussions in Parliament over the years and on different occasions, people have argued that we should take decisions based not on party lines, but institutional lines and sometimes a vote of conscience. Different arguments have been put forward. Invariably, these methods will get taken to party caucus and sometimes party whips win the day over MPs, and that is internal party discipline. But notwithstanding what internal party discipline may be, our obligation as experts on this matter is to seek that, however you apply your mind, you can say you applied your mind as an institution. Whether you actually abide by that is something that I think is up to the conscience of individuals and the party leaders themselves. I have no doubt that party leaders will want to use the whip and have some influence over decisions that are taken. But I do believe that it is in the best interest of this Committee and the National Assembly to decide on this matter, when it is required to vote, to consider it from an institutional point of view, rather than a party perspective. That would be the appropriate way. Whether it gets undertaken, as I said, is a matter for parties and that we cannot prescribe or deal with.

Ms Mananiso: Have you followed the process from the inception? Has it in your opinion been fair, transparent, open? I want to check with you if this particular process is properly followed in terms of constitutionality. My other questions have been covered by Members.

Mr Ebrahim: I wish I could answer in the affirmative as to whether I have full knowledge and understanding of the full process of all that you have done. If I answer that in affirmative, I would be lying. I have obviously paid some attention because of my interest in the work of Parliament in the areas that you are dealing with, and as an expert, but I have not studied it in detail. I have not been well versed in all the intricacies of it, but have general knowledge, so it would be inappropriate of me to commit further than the subject matter I was asked to focus my attention on.

Mr Luzipo: My first question is linked to what Mr Nqola said. What is your understanding of an expert? We keep on running away from this. I always have been using common sense to define that aspect, but let me consult a dictionary. The definition here says: is a person who is very knowledgeable about, or skilful, in a particular area. Then it says in practice as an example, health expert. I am not sure whether it is a subjective relationship with yourself that you are not to be able to define yourself as an expert. I would say, as far as I understand it, a person who is an expert may not necessarily be someone who has all the answers, or who knows almost everything, it is someone who, at a particular moment, may be more exposed and have a better understanding of a specific field. Can you help with that briefly?

Secondly, I am very interested in paragraph 87 in your report. It says: “The National Assembly is the effective decision-maker under section 194 of the Constitution. While the President is responsible for the act of removing the Public Protector from office, he may only do so if the National Assembly has called for the removal of the incumbent and must comply with the National Assembly’s resolution if it does decide that the Public Protector should be removed.” I don't understand why it says the President is responsible but the following statement says something completely different. It says he “may”. Now the use of the word “may”, to me is not a directive; it is a subjective term. Is it possible that a Committee may make a recommendation, hypothetically, because we say this is a new terrain? Is it possible that at some point a Committee will make a recommendation or there may be an ultimate process of Parliament that says someone has to be removed, may the President decide not to? I am not taking it from the Constitution, note, I take it from what is written here? This could become discretionary as the President may apply his discretion, depending on who the President might be at that moment. Could you provide clarity as to who, between Parliament and the President, removes the Public Protector?

Does paragraph 65 refer to Parliament or the Public Protector? It says “no person may conduct or assist in an investigation”, then in brackets “in which he or she has any reason pecuniary interest or any other interest, which might preclude him or her from performing his or her functions in a fair, unbiased and proper manner, unless that person works in government, performs a public function or is subject to the Public Protector’s jurisdiction.”.

Lastly, referring to paragraph 71, it says that the Public Protector may be held personally liable for costs incurred during litigation, if guilty of bad faith or gross negligence in conducting litigation and discharging constitutional obligations. That is a Constitutional Court ruling. Now, is it a constitutional prerequisite or is it a court ruling by the Constitutional Court? I am raising this because that is the apex court, but according to what is here, if that court ruling had not been made, what could have been the recourse? And what if it were a different case? I know you were very sceptical about amending the Constitution. Does this mean there has to be reconsideration or a determination if this should be made a constitutional provision, because it is a ruling of the court?

Mr Ebrahim: I think the question of personal liability for costs in any institution, not just the Public Protector, is an opportunity for the court to express its displeasure at what has taken place in the case it has dealt with, and it does so purely as a punitive decision, but on the basis of very limited conditions, when the court feels that there are conditions that compel the court not to impose the costs of a case on the institution itself, but rather on the person because of the conduct of the person. So it is a very peculiar interest. It doesn't deserve any consideration as a constitutional amendment; it is purely a method that the court decides on. I would caution against trying to even include it in a constitutional amendment.

The issue of self-interest is a matter that goes without saying. One should avoid any institution or organ of state or public body that is involved in public administration having personal interest in the matters that are being undertaken. One has to be cautious about how one deals with that as in paragraph 87.1. Perhaps it could have been phrased a little better. The final task of removal is that of the President but it is done on the basis of a resolution of Parliament of two thirds. So he merely signs and that is the decision. I don't think it is a discretionary issue there. I think the person will be removed on the strength of a decision of Parliament, which is by a two-thirds majority. On the issue with regard to my confidence, I regard myself as being educated.

Ms M Tlhape(ANC): Mr Ebrahim explained at length the immense wide powers that the Public Protector’s Office holds and I am not talking about the person; I am talking about the powers that reside in that office. The Constitution is silent on what we are busy with here, in terms of fitness, and we have to rely mostly on jurisprudence and as outlined in the Public Protector Act. Having listened to all this, I want to find out, besides the Constitution, and jurisprudence, do we have any other tools we can rely on to drive this process as this Committee? I have noted from yesterday that we are talking about uncharted territory, but are there any other tools that we can use? Can the Office of the Public Protector challenge jurisprudence?

I also want to find out, and this is more aligned to what Ms Mananiso asked, and I heard Adv Mpofu speaking about this process being tainted with illegalities, what is your take on the process from where the Committee started to where we are today, even calling witnesses? The Chairperson indicated that we are on Phase Two, there are now proposals and suggestions, such as we need to get legal advice and one honourable Member has said we must even call the President. The Committee has already adopted terms of reference and has agreed on its directives; what would be your advice on these proposals once we have already done this and where the train has left?

Mr Ebrahim: On whether the process is tainted by illegality, I have expressed myself in this meeting and I have been asked for an opinion: I don't believe that the process is tainted by any illegality. It is a view Adv Mpofu has expressed and I respect his argument. Can the PP challenge jurisprudence? Yes. There is no question. The Public Protector is not precluded from exercising her rights in availing herself to the courts to seek redress. That is a human rights issue and there is nothing that can preclude it.

On the question of tools, the Constitution is silent on the 'fit and proper' requirements and we rely on jurisprudence. Are there any other tools? Well, I think it is a matter for this Committee, which is why, when responding to this brief, we tried to present a list or summary, which will define the details of what we think has been raised. Regarding fit and proper, I would imagine that if Parliament deems it appropriate, in the rules or in the legislation, it would seem appropriate to define 'fit and proper' in much more detailed terms; perhaps in an amendment to the appointment requirements of the Public Protector Act. The tools that could be available and open to you, will be either the rules or legislation, and an amendment to that. But what I thought important was to present to this Committee a view and a reading of not just the Constitution and legislation, but also the rules and jurisprudence on the issues. Hopefully, it has improved the knowledge of the issues. Ultimately, the National Assembly is the law-making body and you have the authority to decide on how to determine what laws need to be passed. That is your mandate. Should you feel that matters coming out of the committee's work may inform or provide you with a better opportunity to define things a bit more clearly in the law, then as the National Assembly, you should consider it. So are there any other tools in your hands? It is for you to decide.

Mr B Maneli (ANC): Chairperson, just to reinforce the point you made so that when I ask questions, you will not think I am opening up a ruling you made yesterday. We, the Committee, are not convened to review the discretion of the President as it relates to the suspension. As I ask these questions, they are really not about opening your own ruling, but just to reinforce it. I take it that over and above the directives adopted, the rules of the National Assembly are still in force as they apply to all committees of the National Assembly. We have spent a bit of time in the engagement you have had with Adv Mpofu on the case of EFF and Others v The Speaker. Maybe to reinforce paragraphs 180 and 181 of that judgment, I want to get an understanding that I can live with.

From my understanding, those tools really speak to the process. The problem must be identified and rules set up, but it also says that the National Assembly will determine that it be done in a particular way. The National Assembly makes that determination. In making that determination, part of what it has determined is necessary for this process, was the creation of an independent panel, which also came to some conclusions. And post that, we are where we are today, which is what was set to be the factual part. Compliance is very important for South Africans to understand and to accept, because the National Assembly has done all this to ensure that this process is properly guided.

I just wanted to check that because it would appear on the question of whether this process is legal or not legal, we spend time on trying to justify illegality which really could not be proven as far as I am concerned. I am saying this based on the engagements when you refer to the presidential process and changes to the Public Protector process. Can you confirm the processes that Parliament has followed in setting up this Committee to perform this task, including the independent ballot and whether they satisfy the judgment in paragraphs 180 and 181.

The second point is to follow up on a point raised by Mr Nqola because I didn't quite get the response and that is why I want to rephrase the question. As I said, I am not opening up the point made earlier by the Chairperson, but I want to take paragraph 39, where you say: “The Public Protector is appointed by the President, on the recommendation of the National Assembly”. I also want to look at section 194 of the Constitution. I want to look at the matter in totality. Time was spent on “may suspend" the person from office at any time, which I think has clarified as meaning any time after the start of the proceedings of a committee of the National Assembly for the removal of a person. But if you then take the part about suspension and the actual removal, all these structures seem to cooperate. Now, what makes me raise this is whether our engagement about discretion or interference is not about the spirit and intent of why you said the Constitution is special in that it has included cooperative governance in it. All the roles that are being played are about promoting the objectives of the Constitution. Yes, there may be distinctiveness, but in another way, there is also interrelatedness and an interdependence, because one decision has to be made and the work of the other arms should not betray that. It will not necessarily mean interference because you allow others also to play their role. I think it is important to clarify that point. Is this a matter of cooperative governance, or is it a matter where there is broadly interference of one arm in the other when they are all in promotion of the Constitution?

Mr Ebrahim: I think I can add very little. The Member’s understanding is perfectly spot on and I cannot argue with this approach. Very briefly, I think that the Committee doesn't have any power related to this suspension by the President. It doesn't affect the Committee at all. I believe that the National Assembly must make its determination in terms of the judgment. Cooperative governance is something that is ongoing and is fairly wide in its requirement and is more of a spirit of cooperation between different institutions of government and the need for those institutions to come together. I can add very little wisdom to what has already been stated.

Ms Dlakude: I have been hearing that as this Committee, we should not be following party lines and all those things. I just want to confirm in this meeting that we, as members of this organisation [ANC], our party line is to embark on a fact-finding mission; we don't have any predetermined outcome. So that is our pathway.

Secondly, Mr. Ebrahim, thank you very much for this document you presented to us. I want you to agree with me if I say that the Constitution provides only for the grounds of removal, be it in section 89 or section 194. Then, in the absence of a process that is needed for the head of the institution to be removed, which within the three arms of state is expected to come up with the process of removal, in your understanding?

Can I take us back the role of the independent panel? In your understanding, why did Parliament need the independent panel? In your document, in paragraph 49.2 you say one requirement of fitness and appropriateness for a legal practitioner is that of absolute honesty. Then you said dishonesty, even outside the courtroom or in respect of relatively trivial matters, can render an individual unfit and improper. Any form of dishonesty under oath can render individuals unfit and improper. Can you please explain to a person like myself who is not a legal guru so I can interpret this and also so that the Committee can have a better understanding. Our little understanding of an oath is that it is taken inside a court or in Parliament or wherever, but outside there is no need for an oath. I want you to unpack that so we can better understand the meaning of this paragraph.

To continue, paragraph 86.3(a) says the President may suspend the person from office at any time after the start of proceedings of a committee of the National Assembly for the removal of the person. In your understanding, as this Committee, do we have anything to do with what the executive does or doesn't do? I want clarity on that so we are all on the same page. Your explanation will assist us. The Rules of the National Assembly is a continuous process and when those rules are established, they are not made for a specific person; they are rules that are established to stand the test of time. Those rules are made to govern the activities of the National Assembly. Do you agree with me that, in the absence of rules, the National Assembly or Parliament will not be able to fulfil its constitutional responsibility?

Mr Ebrahim: I start with the last question. I think Parliament operates by virtue of the rules it sets up, primarily because the institution is premised on the rule of law and all it does is in terms of rules. Yes, I believe the rules are naturally required to be reviewed from time to time, and I believe that is of value, and it would be part of the knowledge management exercise of Parliament. So I believe entirely that, yes, the rules need to be reviewed as and when Parliament feels appropriate. A parliament should never be static. A parliament that doesn't change its rules, I think, is in trouble. I have worked with many parliaments throughout the world and parliaments rarely remain static, or the rules rarely remain static. A little known titbit, which is related to this, is that constitutions are generally never amended very quickly, but the truth is that the recent study of more than 200 constitutions suggests that, in general, constitutions are almost completely overhauled over a period of, on average, 17 years. Even something as tight as a constitution, which should not be interfered with very quickly, changes. So the answer to your question is that rules must continue to be reviewed for purposes of improvement – and so with laws, including the Constitution.

On the question on the power of the Executive, I don't believe that Parliament has any other power other than its usual oversight, dealing with the separation of powers, the checks and balances that the Constitution requires and you have a responsibility to call members of the executive to question them when that is required. So those are the powers that you would have identified in paragraph 86(3). Absolute honesty is something that is absolutely critical, and it goes fundamentally to specifically, the terminology used with regard to legal officers, attorneys, advocates and so on. It is something that includes all other people also required to be fit and proper. Absolute honesty is one of the elements that is required in the conduct of these people, so much so that in some judgments, courts have found it offensive when, even outside of court and even in private life, there has been dishonesty; so, dishonesty is dishonesty. When a person has shown an element of dishonesty, courts have asked whether ordinary people should be exposed to such a person displaying this dishonesty. So, honestly is a critically important issue.

On the role of the independent panel, I think that that is a question best answered by Parliament itself. Parliament deemed it appropriate to undertake an investigation and appointed an independent panel to test if there was prima facie evidence of a case to be answered. That matter Parliament undertook in its own right. The value of the report is something that you as a Member of Parliament will decide on but that was the role of the independent panel.

On the grounds for removal process, I think we have dealt with that in different contexts. I think this Committee looks at whether this is the basis on which to remove. The Committee will formulate a recommendation to Parliament that will include the voices of those that disagree. The minority views should also be incorporated in that. Those views will be tabled in Parliament, so that Parliament can then consider whether it wishes to place a resolution and the resolution will be dependent on the requisite two-thirds majority to be approved to succeed with removal, should Parliament so deem it appropriate.

As to the question of the party line, I appreciate the point that you make and I think that is valuable. It is heartening to know that no decision has been taken along party lines and the current exercise is one of fact-finding, so that they can do something to be appreciated and respect. I think it is an important exercise.

Chairperson: Thank you, Mr Ebrahim. We are going to take a five minute break, and then we come back to quickly deal with the directives.

Adv Mpofu: I was just wondering for the sake of practicality - if you remember there was an issue that you stood over regarding the questions that were directed at me - if we should not get those questions so that I can use the break to prepare responses.

Chairperson: Okay. Very, very, very fair.

Mr Herron: I think it is important that I pose this question before we deal with the directives. Yesterday we had the opening arguments and we heard a lot about fairness and bias. Then today in the Adv Mpofu's questions to Mr Ebrahim, we heard about if the process has been touched by illegality, whether it would render the process reviewable, and ultimately futile. For the Committee, I am asking if the Public Protector case, as presented by Adv Mpofu, is that this Committee is biased, then we should get that substantively upfront, in some form of motion or submission, that there is bias in the Committee. If the Committee is tainted by illegality, we should to respond to it now, and not deal with it after we have heard dozens and dozens of witnesses and sat until September, only then to hear that we were biased and tainted by illegality. Is it not appropriate if the case by Adv Mpofu and the Public Protector is that there is bias or illegality that makes our process reviewable, should we not address that now rather than at the end of the process?

Chairperson: That is not a new question as this would have been ventilated in the Western Cape High Court where the Speaker and Committee have been accused of illegality, but we'll get to that when he responds. Let us take a break.


Chairperson: Following up on Mr Maneli, I need to make the point that this Committee in its establishment, though it has unique features of composition and functioning, is subject to the Rules of the National Assembly. So we are not reinventing the wheel. In terms of Rule 167(f) which says each Committee can determine its own working arrangement, the framework of the rules applicable to everything that we do, have been drafted using that approach. As I indicated in my opening remarks yesterday, the directives were drafted to assist the unique nature of the work that we are doing. They have been discussed by our legal team and the Public Protector’s legal team for their comments. Yesterday Adv Mpofu took us through the areas where there was agreement in principle, and he shared areas where they had concerns and outlined those, if you remember. You yourselves would have received, for your own reading and perusal, those draft directives. For 10 to 15 minutes, I am going to invite Fatima Ebrahim to take us through the key features and highlights of the document that you have already read. Thereafter, I will open the floor to Members to indicate your own attitude towards the directives. I will mute the evidence leaders and the Public Protector. I recognise you, Ms Fatima Ebrahim.

Parliamentary Legal Adviser Fatima Ebrahim: Thank you, Chairperson. I know the Members have had a full day of listening to legal argument, so I shall be as brief as I can. The draft directives have been drafted in accordance with the provisions in Rule 183, which specifically provides that any person, including counsel and attorneys appearing before a Committee, or Sub-Committee must observe the directions and conform to the procedures determined by the Chairperson of the Committee. In this respect, the only constraint is the rule which requires that the inquiry be conducted fairly and that is the case to which these directives must be subject.

The only change is in the definition of motion. Members will have heard yesterday that the Public Protector’s legal team requested that we take a narrow interpretation of the content of the motion as the independent panel did not make a prima facie finding in respect of all of the charges as contained in the motion. The proposal is that where such findings were not made, that this Committee should not consider those charges. The independent panel, as provided in the Rules, was to make a recommendation to the National Assembly only. It was not empowered to make decisions. This was confirmed by the Constitutional Court earlier this year in its judgment on the removal rules, and particularly about having a judge on the panel. The court said (in paragraph 61 and 62) that the judge does not have any decision-making role in the removal of the incumbent. It further found that the Assembly can choose whether to follow the panel's recommendations. In this respect, the court respects that the Assembly alone has the power to review Chapter Nine heads. In this case, the Assembly, having considered the views of the independent panel in what was essentially a desktop exercise, adopted the recommendation to refer the charges of misconduct and incompetence to this Committee, as contained in that motion. As such, the motion in its entirety was so referred so that this Committee deals with the consideration of the motion, and not the panel report. For this reason, even where the panel has found prima facie evidence in respect of a particular charge, this Committee will not be bound by such a finding and maybe reject those findings. This Committee may come to a different finding, precisely because this Committee has powers that the independent panel did not have. It has the power to summons, the power to call for oral testimony, and to consider evidence over and above that which was submitted in support of the motion. With the benefit of these additional sources, this Committee is entitled to, and may well arrive, at different findings. I do think it is a moot point as this Committee and certainly you as Chairperson do not enjoy the power to limit a motion as referred to by the Assembly. The Committee has been mandated to do a particular task, in this case being the assessment of the motion, and the Committee certainly does not have the power to narrow the scope of that referral.

There was also a request from Adv Mpofu to add a definition of the term ‘Member’ to the directive and the reason was, as I understood it from Adv Mpofu yesterday, there was a concern that Members from other Committees may otherwise participate in these hearings. As pointed out at the beginning, these directives are subject to the parliamentary rules and Rule 185, in particular, states that Members who are not Members of a Committee may be present and speak on a matter before the Committee, subject to any reasonable restrictions the Chairperson might impose. In other words, we cannot limit the rights of other Members and it will fall on yourself as Chairperson to manage the issue.

We have subsequently inserted a definition of ‘summons, which would not have been in the version shared with Members, and I shall take Members through the reasons when we get to that specific point.

Directive 3 is the section that deals with the evidence, what evidence can be considered and provides that evidence must be relevant to the function of the committee, which is to determine whether the Public Protector has misconducted herself or is seen as incompetent. It provides for presentation of evidence and filing of affidavits, miscibility of evidence and so on.

I am moving along. I am going to skip through that directive on opening statements. We have added a provision for the Public Protector’s legal team to make an additional opening statement as Adv Mpofu requested yesterday as yesterday's appeared to focus more on procedural issues. This will be followed by another opening address before they start with the calling of their witnesses and we have no objection to that.

In respect of directive 5: Witnesses, this section deals with sequencing of witnesses, dealing with witnesses who are not on the witness list, those that are shared and, importantly, deals with the summons. As I indicated, I am going to explain just a little bit about this request from the Public Protector’s legal team. The team has requested the Committee to assist the Public Protector to summons witnesses, with the Public Protector not being able to secure the presence of certain witnesses and, in light of the requirement that this process must be fair, we have agreed to that and we say the procedure to be followed is that a request must be made in writing, that the person sought to be summoned must have been invited first, there must be proof of the refusal to cooperate and so on. After which, we will then proceed to issue that summons in terms of the Powers and Privileges Act.

Moving along to 5.10, here we said that the Chairperson can direct any witness, to respond in writing to allegations arising from a witness statement and/or the oral evidence of any witness or any other evidence before the Committee, and to answer in writing specific question put to the Public Protector by the Chairperson arising from such statements and written answers are to be provided to the Committee. The Public Protector’s legal team asked that the timeframe be within seven days, from the time that the questions are posed or alternatively, from the time when the PP makes a decision on whether she's going to present evidence or not, whichever is the later date. I did have a concern about that as it may cause a delay the Committee getting the answers that it requires, and it may impact on the Committee's interactions with witnesses and the evidence as it proceeds. But I just want to assure Members, in case that there's some confusion, that this does not mean that if the Public Protector decided not to give evidence that she cannot be called to answer questions put to her by the Committee. This is the oversight process and there is no question on whether the Public Protector is accountable to this Committee or not. The Constitutional Court has made this clear and, of course, it is critical for the performance of this Committee’s oversight duty. Should there be a refusal to answer other questions put to the Public Protector, the Committee can, of course, use its powers to summons. The next part deals with the questioning of witnesses. The section deals with cross examination and the role of Members in respect of putting questions to witnesses. As I've said from the beginning of this process, this is a Parliamentary process, and whilst we may be assisted by evidence leaders, Members must actively participate so they can apply their minds to the recommendations. This is a responsibility that Members cannot delegate to anybody else.

The next one, directive 6.1: All questions put to witnesses must be relevant to the assessment of the Motion. Disputes regarding relevance shall be determined in accordance with clause 8 below. The Public Protector’s legal team requested that this be referred to another forum for decision making. We rejected this because it is introducing interlocutory type processes, where reliance would be placed on another forum and it is not entirely clear what that other forum is. There certainly is no forum of such a kind in the parliamentary structure. This is a constitutional process that the Committee has undertaken and that must be performed diligently and without delay. Our rules provide that the process must be completed within a reasonable time. For us, it is sufficient that in making any rulings within terms of these directives or any other rules, that the Chairperson must be guided by the rules of reasonableness and fairness and that will be the test to see if it is justified as directed or not. There is an additional issue where the parties have reached an in principle agreement and this is about having a directive that restricts any person from impugning the character of a witness, whether that person is a Member that is doing so, the evidence leaders or the Public Protector, unless there are reasonable grounds to do so and only if the reflection on the character of that person is relevant to the evidence and supporting evidence is filed in advance. The legal teams will fine tune that particular item but there is in principle agreement. Another item related to witnesses are timeframes. A Member shall address the witness in question for no more than five minutes. We have inserted timeframes and you can apply your mind if that is sufficient or you want to weigh in on that so that those timeframes can be confirmed.

Directive 7: Documents deals with the processing and handling of documents before the Committee. The Public Protector’s legal team did seek in 7.2 to limit the evidence that is entered into evidence in the hearings. We do have a disagreement with that. Any evidence that is filed, may be relied upon by the Committee. The entire record that was before the panel forms part of the record before this Committee. The extent to which it will be relied on will be informed by the extent to which the Public Protector has responded to that particular aspect or along those lines. But we disagree that if things are not referred to orally that they cannot be relied on.

Directive 10 is the last section. It is a general section that is provided for because this is a robust process and the section takes that into account. It provides for further and/or amended directives may be issued, when necessary. Members will agree that it is not possible for us to cater for every eventuality. This is just a snapshot and the finer issues will be ironed out before being provided to you for final consideration and issuing.

Chairperson: Ms Ebrahim, thank you for that good work. Honourable Members, I now invite your comments in line with what has been indicated in the rules.

Gen Holomisa: This is a suggestion. Perhaps there should be a preamble to the directive which briefly confirms that there are no standing rules or directives and Parliament only woke up after the DA leader complained about the behaviour of the Public Protector. That complaint led to the start of a process which produced the current terms of the directives they are using. It is important that we raise this background because when we discuss substantive issues, one would want to know the timeline of this process. Why has the South African Parliament kept quiet since 1994, and not had this directive in reference to a Chapter Nine institution. We are actually unpacking what is contained in the Constitution and making it simple. So it would be good because we do not want to be accused at the end of the day that we need law for a specific individual. That would lead to accusations of making a bad law because at the times, you will see we adopt regulations, and then terms of reference. The complainant was one of the parties. Terms of reference were adopted. Two days after that, the same person or group of people, who woke us up were saying are we talking about the future or are we talking retrospectively? So the directives need guidelines. I think an introduction to confirm timelines because yesterday people here were saying: We've never done this before. I am asking for that introduction which will help us when we look at timelines.

Mr Mahlaule: I think these are good directives and it is a pity that we started without adopting them. If we had adopted them, we would not have seen what we have seen here because we were not guided by some form of rules on our behaviour. I am particularly happy with definition one to read with 5.5.2. This rule says any reference to the Public Protector should be read to include any representative, legal or otherwise, that may appear on her behalf, meaning Adv Mkhwebane, unless the context clearly indicates otherwise. Chairperson, you have been inviting Adv Mpofu to speak and that is wrong. We have no business with Adv Mpofu; our business is with the Public Protector. For the record purposes, when you want them to speak, you ask the Public Protector to speak to us and then Adv Mpofu, as a representative of the Public Protector, will speak to us. That is the person whom we have business with. If you go to 5.5.2, you will see, and I want to make an example of Hon Mulder when he addressed a question to Adv Dali Mpofu, which he should have asked Adv Mkhwebane. His answer was, “Are you cross examining me now.” Let us read this point: it says a member of the Committee either directly or through the evidence leaders may ask Adv Mkhwebane directly to respond to certain questions posed orally or in writing, including factual disputes that may arise, even if she is not at the time giving evidence. We could have averted that point where there was a discussion of who was being cross examined. We want information and we are requesting the information from the Public Protector. Whoever answers on behalf of the Public Protector is not our business because the Public Protector has given a brief to the legal representative. That will save us as, on record, we will have been speaking to the person who is relevant to us, which is Adv Mkhwebane.

Let's go to 6.6. Again, I want to demonstrate that if we had adopted these guidelines, we would have averted a lot. Hon Lotriet made the point that it does not assist us that Adv Mpofu just cites a judgment, assuming that we are all legal gurus that must know that there is a judgment on the Mail & Guardian and so forth. No. This says: “In the event that the evidence leaders, the Public Protector or any member intend to rely on any document in the questioning of a witness, which document is not already in the Committee's record of documentary evidence, the secretary of the Committee shall be provided with such document, at least three days prior to the day on which such witness is to appear and such shall be uploaded to the electronic database. The Secretary shall per email inform the Committee, the evidence leaders and the Public Protector thereof.” This will save us from judgments being thrown around that we do not know. We do not work in the legal space and we want to see them. Anything that is quoted or cited, must be here. So I am giving an example of how important these directives are as they could have helped had they come at the appropriate time, which was at the beginning.

Mr A Seabi (ANC): I must indicate, firstly, that I do not know whether it is me alone, but the document I have is not the same as what was presented. There is information that was presented, which is not in the document. It might pose a challenge. Reading 6.7 to 6.14, I see the role of members of the Committee as being a bit diluted. Subject to correction, other people can cross examine the evidence and there is no time limit. Members of the Committee are constrained by a time limit. Will that not pose a question as to whether the process was led by members of the Committee or it was led by those legal teams? I see the evidence leader can lead without any limitation. There can be cross examination from Adv Mkhwebane without any limitation but when it comes to Members, there seems to be restrictions.

Mr Mileham: I have just a couple of points. First of all, can I ask that the Directives be placed in the document library in the electronic database as that will help with exactly the point that Hon Seabi has just raised, that we would have the most up-to-date version. The second is, and I must respectfully disagree with Hon Holomisa, that this document is a process document. It is about how we operate and how we govern the processes here. If we are going to talk about the historical context, that should be introduced as evidence or should be introduced as a document that we can consider and look at, but it should not be included in a process document that talks to the way that we interact with each other, the way we interrogate evidence, etc. I would suggest that proposal is out of line. The third point is that we are going to be looking to you to enforce these rules quite strenuously. Today, we've had a number of incidents where there has been a lot of repetitive questioning where we've gone over the same issue multiple times. I think that this would go a long way to cutting down the amount of time that we waste in these proceedings.

Chairperson: You support the directive? I did not get that.

Dr M Gondwe (DA): I am a bit concerned that 6.12 actually limits our questioning ability to establish facts in respect of the grounds of incompetence and/or misconduct set out in the motion, but there is no similar limitation placed on the cross examination by evidence leaders. I do not know if I am missing something here. If we are to stick within certain parameters, then it only makes sense and would be fair if evidence leaders are also constrained within those parameters. I do not know if I am missing something in the directives, but I think that they should also be constrained in terms of the line of questioning when it comes to cross examination.

Gen Holomisa: I take a note of the comment from the honourable member of the DA, but what I would suggest you do is a compromise. Your office or the evidence leader of the government can help us, please with the timelines I said we want to see. To help us place that information we need to have how this process was started. At that stage, we did not have these rules and regulations which we are talking about today. The public would like to see that, I am sure.

Chairperson: Thank you, Members, for all your inputs. We will take into account your comments on the directives because immediately after this, we will issue those directives; they have not been issued yet. You are seeing them so that you are able to familiarise yourself with them. Actually, the rules give the Chairperson the power to issue the directives but because we work in a collective approach, we have shared them. We could easily have said these are the directives issued by the chairperson, as the rules dictate. But that is not how we work. I take into account every comment made by colleagues in that spirit. We certainly will apply our minds and we will issue the directives. We take the plea that as we start tomorrow with witnesses and others who are not expert witnesses, but specific witnesses in certain areas, that we start applying what you have agreed to. It was important that we do it before we start that, so thank you very much. I do not think there's any point in staying on this. Fatima, how can I leave you out?

Ms Ebrahim: It is a really quick one just to put Members’ minds at ease. Directive 6.1 covers the relevance of questions and applies to evidence leaders and cross-examination as well, as does 6.3(d) “The Chairperson may order any person, whether a member or otherwise, to stop speaking if he or she, despite a warning from the Chairperson, persists in questions and/or statements that contravene clause 6.1, 6.2 and 6.3.” So there's a limitation there on the evidence leaders as well. 6.4 states that the Chairperson may impose time limits on the questioning of a witness, that he considers reasonable in the circumstances, including limiting or putting a stop to irrelevant or repetitive questioning. All those that I've just read would apply to the evidence leaders and to the Public Protector’s legal team as well.

Chairperson: Thank you. On that point, Hon Seabi and Gondwe, there is no favouritism. I will have to be fair, even handed to everybody. Thank you Hon Members, I step off that matter. The directives are done.

Adv Mpofu: Thank you for unmuting me. So it is going to be a quick thing, I want to just explain our position, for the record. Remember, yesterday when Ms Bawa started, she indicated that we had been engaging on this since last Thursday or so. The idea then was to do a pre-trial so we agreed on the rules of engagement. In that case, whatever would have been presented yesterday would have been the consensus document. The Members are correct that, obviously, ideally, we should have started already with the directive. But the constraint that caused us not to do so, as I explained yesterday, was the fact that there were certain areas of concern, which fell into two categories, those that we could engage on as lawyers, and we have done that until about two hours ago, where we could find each other, and then those that neither of us had the power to deal with and had to be referred to the Committee. So that is the background. I think, it was a pragmatic approach from your side, otherwise we would have only started tomorrow.

Chairperson: Thank you for that. You both can still iron out any issues remaining.

Adv Mpofu: Thank you, we'll do so. If we want to present an amendment, I am sure we will do so, but that is not where I was going. I just want to make our position clear, as the team of the Public Protector, just in case there's confusion that since we are seeking consensus that we know there's consensus because one day we might want to take an issue, and it would be said that we said nothing and therefore we were assumed to have agreed. Our position is that we dispute some of these directives, which means we'll dispute the document. That is just for the record and we do not want any debate. Just so that the record can reflect that, particularly on the scope, whether we are going with the original “Mazzone motion” or sift out the things that were sifted out by the independent panel. For us, that is a matter of life and death, if you like. So it is a matter on which we are prepared to go to war, as it were, but not because of what I said yesterday. Adv Mkhwebane’s attitude generally is that we are here to participate but under protest of all the issues we listed, including this one we listed yesterday on the scope of the motion. We say it would be ‘illegal’, as in Hon Herron’s question, to have the widest scope possible, as opposed to the one that was sifted by the independent panel. What we do about that is our business and when we do it is our business. But it is just so that you know, so that nobody says later, we did not raise. Obviously, we have no power to stop you from adopting the document. But we just record our strong objection to that. That objection is based on the Rule 129(a)(d)(2). It says the Committee must ensure that the inquiry is conducted in a reasonable and procedurally fair manner within a reasonable timeframe. In our view, this document does not accord with that duty of this Committee.

Adv Bawa: I have a question just for the sake of clarity, because a number of the provisions in the document were initially proposed and then redrafted to satisfy the Public Protector’s legal team. I can understand if objections are being raised on the clauses on which no accord was reached, but is Adv Mpofu now objecting to the document in its entirety?

Adv Mpofu: That is a fair question. I was taking the overcautious approach. Of course, for example, if a day means a calendar day, how can I object to that? But the point I am making is that I am objecting to the adoption of the document as a whole, insofar as it contains things that we fundamentally disagree with. I do not think it would help anybody's cause for us to say close this and close that and close that so it is the document as a whole, but it is for those practical purposes. We are taking that approach to try and save time; of course, unless you want to sever those clauses that we disagree with, which we can do. We do not have to do it now, if you understood that we can still indicate it. But for now, our objection is to the document, because it is inseparable.

Adv Bawa: The document is intended to be a live document for the proceedings with you, Chairperson, having the powers to change anything. The reason I raise it is the entire underlying basis of procedural fairness. So for example, we may have put three days in and your team have come back and you've said to us five days. so there was sort of an acceptance of that which was acceptable to you and your team. It might be clearer for the Chairperson and for the Committee, if you do say precisely what the objections are.

Adv Mpofu: We'll consider it overnight. We may present a detailed document. I just do not want to waste time on this. We might go the way of identifying which clauses and then we will give you a list. If we stick to the position that we reject the entire document because the clauses basically speak to each other, therefore we object to the entire document, we will indicate that. But so we do not waste the time of the Committee now, our only purpose was to put on record our objection. So let's put it at a high level and reduce it rather than starting at the low level and expanding.

Chairperson: Thank you for that. I just want to make a ruling. I note the kind of objections you have raised, but we have just discussed that as a committee. In terms of parliamentary rule 183, which I will read again: “Any person, including counsel and attorneys, appearing before a committee or subcommittee, must observe the directions and conform to the procedures determined by the chairperson of the committee or subcommittee”. Having noted the objections, I look forward to any other issues that you raise so that I can apply my mind to them. But, as we step off here, I am happy with the directives, and having listened to the Members, if nothing else comes along, I will issue these directives. That is how I want to step off this item.

Adv Mpofu, maybe you can start with Hon Herron’s question.

Adv Mpofu: Let me just indicate this, having objected to the directives that you have, at least they would have assisted us in this respect, because I was quite worried about you putting the Members' questions in the middle of the cross-examination. The directives will make it very clear that questions from Members must come after the cross-examination. In other words, it says that evidence leaders will lead witnesses, then it will be cross-examination, and afterwards, Members’ questions. You have not done that; you imposed the questions in the middle of the cross examination. But that is fine. That is not an objection, I am simply indicating that it will help us going forward if we follow a procedure like that because otherwise the cross examination gets disjointed and then new questions arise because of the questions from Members and so on. Let me then start with Hon Herron’s question.

He had two important questions, and I am not going to be long on this because we covered some of it yesterday. The first question was about bias. I want to assure you that the issue that I raised around bias is not against members of this Committee squarely in relation to the illegality but I've got other problems with the members of the Committee, which I mentioned yesterday about people who have made utterances or popped champagne, or all sorts of things which shows that they have prejudged the process. Mr Luzipo asked yesterday whether these issues were being raised in the form of an objection and I have just described again now, as I said, when I first opened my mouth yesterday, our position is very simple. It is that the Public Protector is participating out of respect for this Committee, out of respect for this Parliament, out of respect for the Constitution, and out of being tired of being falsely insulted with accusations of Stalingrad, wherever she has raised legitimate issues about this process. I told you yesterday that at every step she has been correct, but it has not stopped. She has decided if the Committee wants to engage in a futile exercise, there is nothing she can do. Having said that, she then wanted us to register the areas of protest, which I did extensively yesterday. I will not go into that for purposes that I've just explained to the Chairperson. We could have come here, called the first witness and then, two months later, we could say it was unfair, and people would say, but you were there. That is how the acquiescence story works. So it is just a place to record. That is what I did. That is why I kindly asked, and fortunately, my learned friend agreed, to have two opening statements, so to speak, so that we put our position clearly, on our issues of legality, but without then saying, when I have finished that you have heard us and we take our bags and we go back to Gauteng. We are going to be here for as long as you want us, if it takes another six months, so be it.

But we say the process - which then takes us to your second question - is tainted by illegality. I thank you for that, because I think it is important for me to say this, in brief. We are saying something that is quite simple, which is that the fact that there was something – I was going to put to Mr Ebrahim – I think I was telling Mr Mulder outside and made this example. There was a case where, when they were bringing in the accused person, the judge shouted at the prison authorities saying, this thing must stop, and actually it stopped at that point. It must stop that you come to my court, bringing an accused person wearing orange overalls and leg irons because, already, that person will be treated in a particular way, unlike another accused who is wearing a suit and a tie. That is the end of that example. So that is what we are saying, and it is in the section that I just read right now to the Chairman, that you have a duty, which you have imposed upon yourselves, for this process to be fair, reasonable, and transparent. I think those are the words, then you cannot say it is not our business if she is coming here in yellow overalls with shackles and handcuffs, just like in the case with that judge. We are therefore saying that if the suspension, which was triggered by your conduct, and I am not saying that in a negative way, I am saying it in the sense that, without the message that the process had started, then the suspension would not have happened. I think that is common cause. We are saying that if you ignore that, then it amounts to illegality. Why? Based on fairness, there are two legs to answer. Firstly, it is the right to a hearing, and you breached it. Again, I am saying that with all due respect, that you breached it by denying the right to legal representation. That was an 'audi' problem. We went to court, up to the Constitutional Court, and the Constitutional Court agreed with us that you breached the right to fairness in respect of 'audi'. To that extent, that is why I am here. But the other inseparable part of fairness is the rule against bias. In other words, the fact that there is no inherent fairness and I explained the three elements yesterday, including conflict of interest. There is the notion in law, which is called a process that is tainted by bias. Now, let's assume for the purposes of this discussion, that there is bias and illegality around the issue of suspension. I do not want it to be that, but let's assume that to make it easy. The only question legal then will be whether that legality taints the fairness of this process, like the shackled and yellow overall accused person. That question depends on a lot of things, including issues that will be conversed in court in 12 days’ time. But really, that is all I want to say.

Then there is your other question about the panel and the role of the panel. I do not know whether that was a question, but that is a note that I've made. This one is very simple. We are saying that your counsel in court, or the Speaker of Parliament, in court papers, described the relationship between the panel and this Committee correctly, is a double sifting mechanism. So I do not know, if we are going to make sorghum beer, we have a strainer. A double sifting mechanism means that the first one maybe takes out the stones, then the other one takes out the leaves and then you remain with the product. There have been attempts to try and say the independent panel is nothing but that will never get you anywhere because the independent panel, and this process, are part of the double sifting mechanism. Parliament could have put in one sifting mechanism or 20 sifting mechanisms, it is up to Parliament, but once it has chosen the two sifting mechanisms, then those are the sifting mechanisms to distil the existence of the ground of complaint.

My last point is that, therefore, the question really remains one and one only. That is the one that I said everyone must go home and think about the technique. It is a pity, I think, that Hon Mileham, Hon Nqola and somebody else asked this question twice of Mr Ebrahim. It was a very simple and good question: Is the committee envisaged in Section 191(1)(b) and the one envisaged in Section 194(3)(a), the same? The answer to that will be whatever it is, I am not there now. Then the related part of the question from Mr Nqola, was: Is it the same committee or are they separate committees conceptually? Is this one of the committees, or both committees, you know what I mean? If it is one, then the question obviously is redundant, but if there are two – the one is yellow; the other is green – which one is this committee? That is the question we put because it comes to the single question: is this the removal committee? Are these the proceedings for the removal of that person - the person being the Public Protector or any other Section Nine head? It is a simple question. If the answer is yes, then you are in business, but if the answer is no, this is not that committee but section 194(3)(a) we are in business, but not here.

Mr Mileham: I have a real concern about Adv Mpofu making repeated statements that this panel is in some way biased. He has repeatedly stated that there are people here who have made utterances. I know of no person on this panel, who has made any utterance, and I would ask you to rule that out of order and ask Adv Mpofu to withdraw that or to put in a substantive motion that those people withdraw themselves from this panel, because it is unacceptable to make misleading statements in a committee of Parliament. I think that that needs to be called to order immediately.

Gen Holomisa: Chairperson, perhaps you need to defend this Committee by explaining to Adv Mpofu. In your explanation you must make it clear that you are mandated by all parties who are serving on this Committee that you will go to court on this issue of bias. He keeps on saying and at one stage, he included the Speaker. Chairperson, you have a mandate and the minutes of those sittings which clearly state that now that the Public Protector has challenged us in the court, as this Committee, we are going to go and file to defend the Committee. It is going to be important so that we do not end up painted with the same brush.

Mr Luzipo: I wanted to bring a different dimension yesterday – because my name has been mentioned – and I was doing it deliberately. The point I was raising yesterday was that if it is not raised as an objection, then it means we cannot resolve. But if it is raised as an objection, we'll then have to respond to the objection and the matter is put to rest. Now it is going to be a recurrent thing right throughout. As we move, we'll always be reminded about something that we are supposed to resolve. That is why I said that Adv Mpofu must put an objection so that the Committee attends to the objection. That is point one. Point two is about the comments that could have been made and one cannot say check one side. Comments could have been made in favour of them and comments might have been made against them. If we are going to follow that route with Members, it must be checked on either way, because bias can be in favour or against. So if we are going to deal with bias, there's not only one side; it is not an axe.

Dr Gondwe: Earlier on I wanted to say something and it ties into what Hon Luzipo and Mileham have raised. Adv Mpofu has said more than once that they are here under protest and when we were considering the directives, he said he may possibly have objections to the directives and the integrity, etc. That immediately calls into question whether what's happening here is what he deems fair. If someone is here under protest, then you are implying that you do not want to be here. That is something also that I would plead with him to stop saying. He said it yesterday and he's saying it again today, that he's here under protest. When you say that, it means that you're not here out of your own volition, you know, of your own will. We have to be mindful of that. I am afraid it can, how could I say, cast into doubt this entire process as the process will fail. I do not know if I am making sense. I was trying to say that earlier on that if he's saying that they are not happy with the narrative, we are not going to be happy with them in terms of integrity, or with particular aspects. These are things we have to flesh out once and for all and agree that going forward, we are not going to cast aspersions on each other and the process.

Adv Mpofu: Firstly, I do not know what is expected of me. I am simply responding to the questions posed by Hon. Herron. But if I am not supposed to answer the question, then I will not. It was only because Hon Herron had wanted me to clarify something that we dealt with yesterday; I repeated what I had said. I cannot say to him, you must go and listen to what I said yesterday. I think that would be wrong. I am doing this, not because I want to do it, but I am doing it for the purposes of representing my client, so that one day it does not - it might be a waste of a few minutes for you - but one day, it might start a whole lot of problems if she seemed to have participated in an acquiescing manner. I will not say that as it will not be necessary unless somebody asks a specific question. Hon Luzipo is quite correct. I say that, because it would be simple for us to make an objection and ask you to make a ruling, and then we do whatever we want to do with it. But we do not want to do that. If that is also not acceptable to this Committee, then I do not know what more is expected of us. We would like a situation where we, I even discussed this with the chairperson off-line because it is something we had discussed with my learned friend about not sitting on those days when we are going to court, which is 25 and 26 July, and some time for preparation and so on. That is the reality; the case is going to happen on the 25th and 26th about this process and one of the honourable Members asked the question to Mr Ebrahim. What if - and that was an important question - what if, not that it is going to happen, what if that court finds in favour of Adv Mkhwebane that the process is illegal? That question is speculative. Nevertheless, it was raised. I think it is a variation of the question asked by Hon. Herron and that is if there is this illegality, there can only be two outcomes – it can be refuted or confirmed.

Mr Mileham: On a point of order, Adv Mpofu is testifying now. He's testifying and frankly, he's making a statement. It is not related to the issues that matter. Can we please keep Adv Mpofu to the question or topic that is currently under discussion? Right now he's going off on a tangent and he is testifying, rather than answering any specific question. I cannot accept that this is normal.

Mr J Malema (EFF): I think that it is extremely wrong to want to deny Adv Mpofu his right to put the matter on record on behalf of his client, when he feels the process is biased and unfair. That they are under protest. When a person says they are under protest, it is different from saying they are under duress. He never said they are under duress, but he is putting it on record so that when he takes you on review, it should not be that when he arrives in court, it is asked why he is raising these matters for the first time now. He must raise them. This is the legitimate time and period to raise those issues. It is well within his rights. I am a member of this Committee, and I can confidently tell you, I've got no confidence in this Committee, but I participate, nevertheless, so that I can raise my issues and my objections within the Committee even when I do not have confidence in it. So that tomorrow, if I decide to engage in a different process, it should not be that ‘Malema, you had an opportunity to participate and raise issues, you did not use that opportunity’. I see nothing wrong with what Adv Mkhwebane says, because it is not necessarily Adv Mpofu who is speaking and that is how the Public Protector feels. I think that the Public Protector must be protected in this Committee; she must express her views and those feelings. All you can do is to note them, not to attack them and create an impression that they are being unreasonable when they are giving their own observation. We have been listening the whole day, and people have been saying all manner of things, but we believe it is a platform where people must ventilate, and say what they want to say, including Adv Mkhwebane. We must not be obsessed with Adv Mpofu. Anything that Adv Mpofu says on that platform comes from a mandate from his client to say the things he says, is how the Public Protector feels at the moment. When we say we feel this process is biased; we feel this Committee is biased, why do you have a problem? It is like saying to people, you're a racist. I mean, you're saying that these people are racist and you're the first one to say I am not a racist. If you're not a racist, what is bothering you? If you are not biased, what is bothering you? Just relax, take a chill pill. Those who are biased will feel the pain themselves because they will know they are being exposed. But if you're not biased, you will know and your conscience and the record will show that you have tried your level best to be as objective as possible. So I do not appreciate the way we are going about this with regard to the legal representative of Adv Mkhwebane.

Mr Mahlaule: My intention was to call an order against Hon Mileham. When Adv Mkhwebane made opening remarks yesterday, he outlined why he's protesting and why they want to participate. Now the question is asked by Hon Herron, and the advocate put very it clearly that he cannot say “go and listen to the answer I gave yesterday”. He is repeating the point because the operative word now is repeatedly. It is repeated because there's a question. He's answering the question. Let's move forward, because there is no problem as to where we are now.

Adv Mpofu: I am also covered. I do not think there's any need to say more. That last input covered what I was doing, and the other one mentioned earlier. I am fine.

Chairperson: Just two issues to raise today, colleagues. As I summarize, I just want to remind you of this issue of bias or perception of bias, as the point was raised in our last meeting by one of our Members, and I would have given a ruling and summarised the issue by saying, up until that point, and even today, there is no bias in this committee, and there is no bias in the proceedings of this committee, and no member of this Committee is biased. As a chairperson, I must be worried that a biased person will contaminate this process. I would have clarified that as Members, we come from political parties, and these political parties correctly, in their own right, may have developed certain positions and I would have said, some have in their own right determined that they do not know why we are embarking on this process because Adv Mkhwebane is fit to hold office. I made the point that I cannot when a Member of Parliament, who happens to be a member of that party as part of this Committee, therefore begins to say, "You are biased because your party has indicated this". It would mean that I would have nobody here, essentially. At the other extreme, you would have Members that feel very strongly even before we start the process, that Adv Mkhwebane is not fit to hold office, and they would motivate that. But my interest and what I am particularly concerned about is what happens in this Committee and its proceedings. I am not going to drag other things that happen outside and bring it into this Committee. Those were the comments I made in our last meeting and I hope that we do not go back to that and then begin to raise that as a cloud of partiality and bias in this Committee. I want to repeat that. Hon Malema is correct, in the sense that, and I would have said this. Hon Herron did not understand me when I tried to clarify myself to him that the Public Protector has not been doing this Nicodemus overnight. It has been in the public glare and in court papers as part of their own ideas and prayers, they raise that. They feel that there's a lot of illegality. They would have described our meetings as illegal meetings. That is what they ventilated in court. So I was trying to make that point to Hon Herron. Quite clearly, they still continue in the way they feel about it.

Chairperson: There are going to be court processes and there are going to be outcomes of those. On what Hon Holomisa was saying, as I would have shared the factual journey of this Committee yesterday, and in each of those Committee meetings, there would have been an item on litigation presented as an outcome of this court, and this Committee with its Members would have spoken out on those issues, and would have taken a firm stand. When the rules of the National Assembly were challenged, the National Assembly defended its rules. With everything else in the further challenges, we have continued to oppose anything that we think is going to affect our right as the National Assembly, to determine and run our own processes. As Chairperson I represent this Committee, and we cannot all be in court papers, so when he made the reference to me and the Speaker, I understood him in that context. It was not a personal thing to me. I chair the Committee and therefore I represent it in those particular fora. So we continue to defend. We are not going to hide; we cannot just roll over on something we believe is blatantly wrong. We'll continue to do that. But we, as I remember Hon Malema saying, should not have a problem when the Public Protector raises an issue but I want to avoid this becoming an item of discussion. We are not discussing in this Committee what they want to take to court. I want to make that point, colleagues, that you are not going to stop a party continuing to raise issues. I could have used an example about a leader of a party making certain pronouncements, but that issue cannot be brought into the workings of this Committee. It must be seen in that light and whether you agree or disagree with that, find a way to handle that. But as we will establish, and having continued working, there is certainly nothing that as a chairperson of this Committee I am worried about that would have involved, in one way or the other, some form of illegality. I am not going to stop anybody who is pursuing that. Hon Herron was correct in saying that when somebody feels very strongly about that, now you have an opportunity to use that substantive motion if it needs to be done. But you had already indicated that those are issues you will ventilate in 10 days’ time in court. My concern is that we get back to our own focus of the business at hand; we cannot allow this Committee to be side-tracked by any other issue than the business it has been set up to do. That business is what you started a long time ago and yesterday you started the next milestone and chapter of that process, which is hearings of the witnesses from tomorrow, Thursday and Friday, including next week. I am aware that Adv Mpofu has already indicated that on Monday and Tuesday, they will be virtual; they will not be physical, and from Wednesday and for the rest of that week, they will not be available, probably preparing for those court days that they have indicated. So we cannot stop him from doing that but that is fine as we will deal with those kinds of issues.

Adv Mpofu: I have a small point in the spirit of reconciliation, but also to reassure Members. I think what is causing this unease is because the witness on the stand is a so-called expert who is dealing with the broad legal issues. And, again, I would be failing in my duty if I did not put the legal issues to him; because that is the only reason he is here; to give a constitutional analysis. So I want to assure Members that once we pass this phase of situational analysis, I am quite sure, as you correctly say, we'll get to examine witnesses on the merits of the case. I am not going to say to every witness, "Go to section 194". We are not going to do that. I want to assure Members that it is the nature of this particular witness that basically it is almost like a continuation of the issues we were discussing yesterday.

Ms Maotwe: I think you missed one point, that of Hon Holomisa. He asked the question whose mandate you represent when you go to court as you are there to represent this Committee.

Chairperson: I am not going to answer the question, as I have already dealt with it.

Ms Maotwe: No, you did not. You did not answer the question, Honourable Chairperson.

Chairperson: Please, do not create dialogue. I have answered the question.

Ms Maotwe: What did you do? As I say, I did not hear your answer. I've been waiting for it.

Chairperson: Hon Ms Maotwe, please take your seat.

Ms Maotwe: Am I not allowed to ask because I did not hear you respond to it? I am humbly requesting you to please respond to that question of his because it is very important.

Chairperson: Thank you, Ms Maotwe. I have responded to Gen Holomisa.

Mr Malema: With due respect, I mean, it is not something that should take emotions up. If one of your Members has missed a simple point, like the one the General asked, can you just take her into your confidence in the spirit of collegiality? Why should it be we treat each other like this? Without doing things honestly, we have problems. We have not been speaking in this Committee, and now when we try to make input and speak, you treat us like that. Do not treat us like that. I am not even fighting with you. I am saying in the spirit of congeniality, just help your colleague. It is as simple as that.

Chairperson: I will help the colleague and repeat what I've said. I've catered for a response to the question of Gen Holomisa that this Committee has met consistently. In every meeting we had briefings about a number of things, including all litigation. There is no litigation matter that was not presented in this Committee, including the last time. This Committee will take a decision on all of those, empowering the chair, including the last meeting when this Chairperson was empowered to be able to summon witnesses. That is a response to Gen Holomisa, that when I represent this as a chairperson, I do not represent myself in court but everyone else. I represent the view and the power of this Committee. Thank you very much for that. I have repeated my answer to that.

Colleagues, as I was proceeding to make the point that it is now eight minutes past eight, we have a bit of a challenge that things were planned up until five o'clock and so I would be responsible for keeping people here when you don’t have the necessary kind of support for that, let alone the fact that we have a witness here that has been on the stand for more than seven hours, perhaps more than eight hours. So this is where we are. I am indicating that we cannot proceed any further beyond this particular point.

Adv Mpofu: Chairperson, from a biological aspect, I agree with you. So I accept that it means then the cross examination is left hanging. I am hoping to again engage with my colleague. If the witness can come tomorrow and finish, it will help all of us, because then we do not have to inconvenience him in coming back, and so on. If that is not possible, then of course, we'll come to your plan B. The only thing I want to say, if you allow me to share, with your kind indulgence. I do not mind the people attacking me because as a lawyer, I am a creation of a set of instructions. I have to carry out my instructions without fear or favour or prejudice, as the language goes. I've been instructed to put something else on the record, which is that applicable emails, which were blocked as a result of the Public Protector’s suspension and which were unblocked at some stage and blocked again, are now impeding her ability to participate in these proceedings. That is the point you wanted me to make about the connection between fairness and duty to this process. Again, I do not want to debate it and am placing it on the record so that the issue of fairness is understood in context.

Adv Bawa: Can I get some clarity? I am not sure what ‘block unblock’ means. She cannot access the emails in the inbox or she's not allowed to send and receive emails, both or either one?

Adv Mpofu: Yes, the issue is the power to go into the long history of the matter as a result of the suspension. The emails were blocked. Blocked means you cannot access the emails; when you press a button, the email does not come up. As I explained yesterday, for example, if I ask her what happened about charge number three, which is something that happened in 2016, she remembers sending an email to so and so about it. Now, we cannot do her preparation without that, and that is what has happened. I am just showing that is the direct result of the suspension.

Adv Bawa: Okay. I think I know what you require.

Mr Nqola: I think it is correct for the Public Protector to register that particular information. Part of what I would say is has there been a miscommunication or a communication between us as the Committee and the Public Protector so we know how far the damage has been in the block unblock kind of a situation.

Mr Malema: I wanted to raise the concern earlier on. The evidence leader asked earlier today what was blocked, and I said she does not have access. Who's controlling the platform? Heckling is allowed. I am not going to be muted by mere administrators. I am a Member of this Parliament. If I was inside there, and I heckled, how was he going to block me? You must keep all these administrators in order.

Chairperson: I take note of that. You registered the point yesterday.

Adv Mpofu: I shall respond to Mr Nqola. When it comes to the communication between the team and evidence leaders, or even the Parliamentary staff, there's no problem at all. What we have is a problem, but it is not related to this; it is about capacity and so on. The problem is simply at the level of the ability to go back. In other words, if the Public Protector was not suspended, she would have been able to prepare fully for this by accessing her emails. That is why I am only raising it in that narrow sense for the impact it has on this process. The inherent unfairness is part of what I call the shackling, like leg irons.

Chairperson: As I indicated, I think I will stay in touch with the evidence leader to get an indication of progress on those issues. The hearings will resume tomorrow.

Mr Mileham: Just before we adjourn, did I hear you correctly that the program for next week, Monday and Tuesday is virtual and Wednesday, Thursday, Friday is cancelled.

Chairperson: The indication we have already had, which is well in advance, that the Public Protector and her legal team will be attending virtually on Monday and Tuesday next week so you will not be seeing them here as you see them this week. They have a difficulty about Thursday and Friday. But that is a matter that is still being handled between the two teams.

Mr Mileham: Could we get an update on that tomorrow morning?

Chairperson: I do not know about tomorrow morning, but we will manage those issues. Tomorrow is Wednesday so the teams are fully handling them. There is no reason for alarm. Thank you, Members. We will resume tomorrow. The hearing is adjourned.

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