PP Inquiry day 3: Johann van Loggerenberg

Meeting report

Opening Remarks
The Chairperson made brief opening remarks. He noted that this was the third day of hearings.

Hearing of Mr van Loggerenberg

Ms Fatima Ebrahim, Legal Advisor, Constitutional and Legal Services Office, Parliament, asked the witness to state his full name for the record.

Mr Johannes van Loggerenberg stated his full name for the record.

Ms Ebrahim stated that Mr van Loggerenberg had been invited subject to the provisions of section 16 of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act of 2004 to appear before the Committee as a witness and to answer questions in respect of the Committee’s enquiry into the removal of Public Protector Adv Mkhwebane. By law, Mr van Loggerenberg was required to answer fully and satisfactorily all the questions lawfully put to him and produce any document required in connection with the subject matter of the enquiry. Notwithstanding the fact that the answer or document could incriminate or expose him to criminal, civil proceedings or damages. Mr van Loggerenberg was protected in that evidence given under oath or affirmation before a House or Committee could not be used against him in any place outside Parliament, except in criminal proceedings involving a charge of perjury or a charge relating to the evidence or documents required in the proceedings. In terms of section 17(2) of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures and Act, a person who wilfully furnished a House or Committee with information or made a statement before it which was false or misleading committed an offence, and was liable to a fine or imprisonment for a period not exceeding two years. Mr van Loggerenberg was asked to take an oath or affirm that the evidence he was about to give was truthful.

Mr van Loggerenberg indicated that he would take the oath.

Ms Ebrahim asked that Mr van Loggerenberg raise his right hand and repeat the oath, which she read out.

Mr van Loggerenberg stated that he swore that the evidence he would give would be the truth, the whole truth and nothing but the truth, so help him G-d.

Introduction and Context
Adv Nazreen Bawa, Evidence Leader and Senior Counsel based at the Cape Bar, stated that before she came to the actual questions she would pose to Mr van Loggerenberg, as a precursor, she wanted to sketch a bit of background for the Members of the Committee to contextualise where the evidence fit in.

She assumed that there was a document furnished that morning that outlined the timeline of cases to assist the Members. This was furnished to her by Mr van Loggerenberg’s attorneys. The context of Mr van Loggerenberg’s evidence, was a report prepared by the Public Protector relating to an investigation into allegations and violations of the executive ethics code by Mr Pravin Gordhan as well as maladministration, corruption and improper conduct by the South African Revenue Services (SARS). Apart from the adverse findings made against Mr Pravin Gordhan, another report implicated Mr Pillay, who the Committee would also hear from and Mr Magashula, both of whom were former employees at SARS, implicated in serious misconduct, maladministration and criminality. The Report could be found in the bundle provided to the Committee as part of Bundle A. What transpired was that the Report was issued on 5 July 2019. This Report became the subject matter of a number of judgements, together with two other reports. Two of those reports had been set aside, she would take the Committee through, where in the legal process, that currently was.

The first case, was to be found in Bundle A, page 4217 and it would be number 16 of Bundle C. In July 2019, Minister Pravin Gordhan launched a review application against the Public Protector’s reports, which dealt with the SARS investigative unit. It was an application, which meant that it was done on affidavit. There were two parts to the relief being sought, parts A and B. This judgement dealt with part A of the relief, in which an urgent interdict of the implementation of the remedial relief was sought. She indicated certain paragraphs in the Judgement. The Judgement could be found in Bundle A, page 3210. She highlighted paragraph 9 of the Judgement. ‘Applications for suspensions of mandatory orders, pending reviews befit interim interdicts, and were granted daily in busier High Courts and Magistrates Courts. In fact, quite often, the PP’s remedial action had been suspended with interim orders pending reviews of the PP’s reports. It was thus correctly conceded by counsel for the PP that normally these interim orders were not opposed by the PP.’ In paragraph 12 it stated that ‘the question was why the PP did not follow the “normal practice“ as confirmed in the correspondence in the application, but labelled it as extraordinary? It was submitted that the PP’s opposing that granting of the application because of her duty to defend the independence, impartiality and dignity of the Office of the PP as well as her person. This flows from the averred vexations, scandalous and irrelevant matter set out in the founding affidavit of Gordhan.’

To assert that suspension threatened the office of the PP as a Chapter 9 institution was far-fetched, ingenious, not substantive and did not raise truly constitutional consideration relevant to the adjudication of Part A – as stated by the High Court.

The complaints relating to Pravin Gordhan flowed from a meeting held in 2010 and the establishment of an investigative unit in 2017, that the Public Protector was not entitled to entertain these complaints because it was outside of the two-year limit or her jurisdiction and would have needed to prove special circumstances. She referred to paragraph 15 of the Judgement. ‘In the Report, para 3.5 the Public Protector regurgitates the factors setting out that could constitute special circumstances. Surprisingly, no factors are set out as to what she considered, and why, in casu it constitutes special circumstances. In view of the provisions of this section and the fact that the complaints emanate from a decade before, one would expect the Public Protector to set out the jurisdiction to entertain this claim. It was thus argued that on the report itself, without establishing jurisdiction, Pravin Gordhan had a prima facie right to review.’ In the Public Protector’s answering affidavit, as stated in paragraph 16, ‘she baldly avers that all the review grounds are without merit and were denied.’ Paragraph 17 stated that ‘in argument, counsel for the PP did not address the jurisdiction issue at all.’ In paragraph 19 it stated that ‘Gordhan in a letter dated 27 March 2018 requested identification of the special circumstances, however, the PP never responded thereto. On 16 April 2019, Pravin Gordhan again requested the special circumstances to be identified. In the PP’s response she submitted that the special circumstances related to illegally acquired surveillance equipment which was acquired at an astronomical cost, which was still being utilised to intercept communications and therefore it constituted a special interest as public funds were still being used for illegal purposes. Even if this could constitute special circumstances, this was not forwarded as a special circumstance in the report and could in any event not sustain a special circumstance about the averred misleading of Parliament by Pravin Gordhan. In paragraph 20, ‘the EFF then proffered a special circumstance, not proffered by the PP (i.e. the public interest to an unlawful unit at SARS). The PP, not the EFF, must exercise discretion; the PP has not forwarded the public interest as a special circumstance.’ Paragraph 22 went on to further review the Executive Ethics Code. The Court found that Pravin Gordhan had established the prima facie right for what was needed for an interim interdict.

Paragraph 25 onward dealt with the SARS Investigative Unit. In paragraph 28 the court set out what the PP found in respect of the SARS unit, and that it was in breach of section 209 of the Constitution. The Court concluded, in paragraph 30, that there was no evidence that this was the purpose of the unit. Paragraph 32 related to Mr Pillay’s appointment at SARS and the issue about him having a matric certificate. Paragraph 33 noted that the statement that Mr Pillay had no matric certificate was malicious and fatally flawed. Mr Pravin Gordhan relied on section 7(9)(a) of the Public Protector Act, which rendered it mandatory for the PP to afford any person an opportunity to respond to adverse findings. It was argued that he had not been afforded the right to argue audi alteram in respect of this finding. The Court concluded that the prima facie right for an interdict had been granted.

Paragraph 45 onward dealt with the harm to Gordhan. In paragraph 51 it was concluded that the harm would be irreparable if the interdict was not granted. It was further concluded that the PP and her office could fulfil their constitutional duties in her office, with the suspension order not interfering with her constitutional duties at all. Suspension of her orders had most certainly not interfered with her constitutional duties in other matters.

The first, second and tenth respondents were ordered, jointly and severally, to pay the applicant’s, eight respondents’ and ninth respondent’s costs, which costs would include the costs consequent upon the employment of two counsel. It effectively made a cost order against the public protector in a personal capacity. The EFF then took this on review to the Constitutional Court. That judgement was also contained in Bundle A.

She read through a number of paragraphs relating to the Constitutional Court Judgement, in the matter between the EFF and Pravin Gordhan. The application for leave to appeal against the merits was dismissed. The Court found that there was a basis for the appeal on the issue of costs because the Judge stated that he was not considering the question, comments or remarks that were made by Minister Pravin Gordhan. There should not have been any personal cost orders made against the Public Protector in her personal capacity. As the EFF had come to court to ventilate a constitutional matter, the Court stated that there were no merits to not granting the relief sought. Effectively, leave was being granted against the cost. The Constitutional Court overturned the cost order against the Public Protector in her personal capacity and against the EFF. It held that the cost had to be paid by the office of the Public Protector, in respect of the High Court and the Constitutional Court. She referred to paragraph 26 of the Judgement. It set out the background, ‘aggrieved by this outcome, the EFF and the Public Protector filed urgent applications to this Court for leave to appeal directly against the judgement and order of the High Court. On two occasions, the Public Protector purported to withdraw her application, but this was opposed by the President who insisted on a hearing due to the extraordinary circumstances of this case. Adv Bawa further referred to paragraphs 29 and 52 of the Judgement. Paragraph 53 stated that the argument made by the Public Protector, while novel and interesting, had no merit. The OUTA test patently underscored that courts should be slow to grant interim orders against the Executive and that interim orders must be granted only in exceptional circumstances and in the clearest of cases.

She referred to paragraph 62 of the Judgement, the concession made in the High Court and repeated in that Court by counsel for the Public Protector, that the Public Protector seldom opposed interim interdicts, illustrated that interim interdicts did not have an effect on her powers or the accessibility of her Office.

She referred to paragraph 88, ‘What was evident from the statements above was that the High Court did not take into account the adverse allegations advanced by Mr Gordhan against the Public Protector, as those allegations were not relevant to the determination of the granting of the interim order. Thus, absent reasons for granting a personal costs order against the Public Protector and disavowing the adverse allegations, there seemed to be no factual basis for making a personal costs order.’

Remarks
Adv Dali Mpofu, lawyer for Adv Mkhwebane, requested clarity about the approach being applied. He asked if Adv Bawa’s input was leading up to a question or part of a question.

The Chairperson clarified that Adv Bawa had indicated at the beginning that she had wanted to provide a bit of background to the proceedings.

Mr B Holomisa (UDM) asked if there was an example of an instance where the Public Protector had ever won a court case after she was challenged on her remedial action. In other words, after such remedial action was taken, one seemed to be searching for cases where the Public Protector had lost – there needed to be a balanced representation.

The Chairperson ruled that out of order as Adv Bawa was about to pose questions to the witness.

Adv Bawa responded that there were a number of charges and there were a number of witnesses who would relate to certain reports which then resulted in certain court judgements, some of which had been completed and some of which were still pending in court. In order to understand where the witness fits in on this journey, one needed to have a picture of which report and judgement were being spoken about and where and when they took place. It was particularly complex as there were essentially five judgements arising, three at the High Court level and one at Constitutional Court level and another application of leave to appeal that fell in between. This was why time was taken to provide a timeline to see where each case went. She had provided background to provide context for Members, so that it was understood where all the pieces fit in.

Hearing Continued
Adv Bawa stated that the witness came in after the judgement, around the 29 September 2019. In these proceedings, Mr Pillay deposed an affidavit.

Point of Order
Mr M Mahlaule (ANC) raised a point of order regarding the Chairperson’s previous ruling, about the relevancy of the previous cases of the Public Protector.

The Chairperson responded that the issue had been raised. The evidence had been prepared. At present the other cases were not what was being dealt with.

Mr Mahlaule raised this as in-front of each Member was a document of cases. None of these cases reflected the cases that Mr Holomisa had brought attention to.

Mr X Nqola (ANC) explained that the cases outlined by the evidence leader related to the affidavit deposed by the current witness on the stand. These would come up as evidence was being heard. The other cases would be raised when relevant.

Hearing Continued
Adv Bawa stated that paragraph 75 of the Judgement, confirmed that Mr van Loggerenberg was part of the management of the unit, referred to as the Special Projects Unit (SPU) or the National Research Group (NRG), or the Higher Risk Investigative Unit (HRIU). Mr van Loggerenberg reported to Mr Pillay in his capacity as the General Manager of Enforcement and Risk. She asked if this was correct.

Mr van Loggerenberg stated that it was correct and that he should say that at times some other managers interposed, but the statement was correct.

Adv Bawa stated that pursuant to the call for public submissions, Mr van Loggerenberg provided the Committee with an affidavit to which he deposed on 3 June 2022. She asked if this was correct.

Mr van Loggerenberg stated that this was correct.

Adv Bawa asked if that affidavit could be found on page 70 of Bundle B. During the…

Mr van Loggerenberg interrupted Adv Bawa.

Adv Bawa clarified that this information was for the Committee to locate the documents.

Mr van Loggerenberg stated that he would go on memory regarding the documents.

Adv Bawa asked if during the proceedings, Mr van Loggerenberg deposed two affidavits.

Mr van Loggerenberg replied in the affirmative.

Adv Bawa stated that the one was deposed on 25 September 2019, which was attached to Mr Pillay’s supplementary founding affidavit, she asked if this was correct.

Mr van Loggerenberg stated that this was correct.

Adv Bawa indicated that this could be found in Bundle D. The second affidavit was dated 29 September 2019. That was attached to Mr Pillay’s answering affidavit supporting the Minister of State Security to have a report interdicted. She asked if this was correct.

Mr van Loggerenberg stated that he unfortunately could not access the documents at the moment, as his computer had given in on him. It was correct that he deposed the two affidavits in exactly the manner described. He was unable to confirm the exact dates of deposition. Somebody was attempting to unlock the computer on his behalf, thereafter he could confirm the dates. Both depositions took place in September 2019 within a couple of days of one another.

Adv Bawa asked if he had the affidavit made for the public submission with him.

Mr van Loggerenberg stated that he had them all with him. The computer he used caved in earlier that day. A technical person was assisting him.

Adv Bawa stated that she would read through it, as he was likely familiar with most of it. Paragraph three of the affidavit stated that ‘he depose to this affidavit as a former employee of the South African Revenue Service (“SARS”), in terms of the Protected Disclosures Act, 26 of 2000 as amended, however inadequate and underdeveloped it may be, and invoke all relevant and necessary protection provided to him in this law, the common law and the Constitution.’ She asked when he had left the employment of SARS.

Mr van Loggerenberg stated that he left SARS in February 2015.

Adv Bawa stated that in paragraphs four and five, he had indicated that he submitted the ‘affidavit in the interest of justice and the South African public in pursuit of a better society for all.’ She stated that it was not her intention to read out the affidavit, but rather for him to testify to it.

Mr van Loggerenberg stated that he could speak to paragraphs three to five.

Adv Bawa asked if he could see the affidavit being flighted on the screen.

Mr van Loggerenberg confirmed that he could.

Adv Bawa asked that he elaborate on paragraph five, specifically his motivation for doing the affidavit by public invitation.

Mr van Loggerenberg stated that in a nutshell, during the time that he worked for SARS, it had always been under attack by various ‘nefarious’ forces, in the main people who were opposed to components within the Revenue Service that were involved in law enforcement. As far back as 2009, it began to increase in intensity and ‘deviousness.’ This culminated towards the end of 2015, around October, in what he could only describe as a very complex ‘orchestrated propaganda campaign’ that focused on a very tiny investigative unit within the Revenue Service. It was extremely brutal, humiliating and personally impacted a whole lot of people. It became the pretext at that point in time to effectively capture SARS by getting rid of people, ‘bullying’ people and preventing people from saying anything publicly that would contradict the propaganda etc. As time went on, it was the proverbial blood in the water, there were many other people who saw it as an opportunity to leach onto for their own agendas that coincided with those ‘enemies’ of the Revenue Service. SARS’ ability to counter that disappeared completely, in fact it capitulated. As a consequence, one sat today with a weakened Revenue Service. This had not only affected his rights, as he had been made a poster boy for all the ghastly deeds that the small investigative unit had ‘supposedly committed’ over the seven years of its existence but also other loyal civil servants and their family members. Those were externally motivated events which played out on different platforms, including the media space, criminal courts, civil courts, the Press Ombud and Broadcasting Complaints Commission on various panels. He was still so traumatised by this, as were many other people. He stated that they were not offered ‘to drink the poison that came.’ As a consequence, the propaganda remained. ‘It became expedient, politically and otherwise for all and sundry, for anyone who, at any given time, wished to use it’. It was a never-ending saga. As he sat before the Committee, as a whistleblower, it was eight years in. That was his motivation. Report no. 36 of 2019/20 of the Public Protector Office was a case in point, it essentially relied on the propaganda activities.

Adv Bawa referred to paragraph seven of the affidavit. He set out facts, which he had suggested were common cause between him and Adv Mkhwebane. She asked why it was ‘common cause.’

Mr van Loggerenberg stated that these were direct quotes from his affidavit that he had put up in court at the time during the dispute prior to judgement in support of Mr Pillay’s affidavits. These assertions were not challenged, disputed nor contested. His understanding was that it therefore stood uncontested, the Court in fact confirmed that in the judgement.

Adv Bawa asked that he take the Committee through paragraphs 7.1 to 7.9 of the affidavit.

Mr van Loggerenberg stated that paragraph 7.1 referred to the fact that he was an employee of SARS between November 1998 and February 2015, and served in various capacities over the years from the age of 29 to 44. He started at a relatively junior level and over the years he was promoted. The final job title was described in paragraph 7.2, as the Group Executive: Tax and Customs Enforcement Investigations: Projects, Evidence Management and Technical Support and that he managed five SARS investigative units in this role.

Paragraph 7.3 outlined how he came to hear that the investigation by the Public Protector had been concluded. He had heard on the radio while driving in his car. He obviously tried to access it to see what it said. After having read the report, he immediately sought legal advice. Paragraph five was confirmation that the Minister of Public Enterprises, Mr Pravin Gordhan, the former SARS Commissioner Mr Oupa Magashula and former Deputy SARS Commissioner and Mr Ivan Pillay had brought various applications in respect of that particular report. This was basically what was sketched in Adv Bawa’s opening remarks. He had followed those on live stream online to the extent that they were being broadcast to the public at the time.

Paragraph 7.6 confirmed that central to the findings in Report No. 36 of 2019/20 dated 5 July 2019, was the investigative unit established within SARS many years before. That Report made numerous adverse findings, conclusions and recommendations in respect of that small unit. Paragraph 7.7 simply confirmed that the unit had existed between February 2007 to October 2014, when it was disbanded by order of the then SARS Commissioner Tom Moyane, which comprised of six people.

By the end of 2009 it had only seven officials. When it started there were 26 officials. The particular unit that was the subject of the report went by different names over the years, as SARS modernised. It was initially known as the SPU later it was known as the NRG and lastly, at the time of closure, it was known as the High Risk Investigations Unit (HRIU). Paragraph 7.9 related to a press conference that was shown on YouTube by Adv Mkhwebane, dated 9 June 2019, if he was not mistaken, preceding the conclusion of report 36 of 2019/20. In the video, Adv Mkhwebane expressed certain clear views about the unit, which she described unequivocally as being a ‘rogue’ unit. She referred to it as ‘the rogue unit’ in her capacity as the Public Protector at the time. She had also stated that ‘people had died,’ which suggested that the unit had been involved in ‘murdering people’ or ‘plotting to murder people.’ Paragraph 7.10 asserted that the person who would have known anything about this unit would have been himself, as he was in charge of the unit from April 2008 to October 2014 when it was shut down. In all respects, operationally, human resource management wise, financial management, strategic planning, accounting to the Auditor General, accounting to law enforcement agencies etc., came with managing any component within the civil service. Except for a period of nine months in 2012, where he was assigned another role, he had been in charge. For that period the unit reported to another manager in SARS.

Adv Bawa asked him to pause. She stated that she would go through the judgement of the full court in case 48521. If one went to paragraph 164 of the Judgement, ‘attached to the supplementary affidavit of Mr Pillay was an affidavit of Mr van Loggerenberg, one of the people implicated by the court. He had intimate knowledge of the unit and was clearly the person most capable of confirming the accuracy and factual position relating to the unit. He was responsible for all management functions of the unit at all times from April 2008 until its closure in October 2014, with the exception of a period of nine months. The Court referred to the affidavit which he had deposed which was before the Committee, and which was in next to the affidavit of Mr Pillay. She asked if this was correct.

Mr van Loggerenberg stated that this was correct.

Adv Bawa referred back to his statement, in paragraph 7.11, it was indicated that he had approached the Office of the Public Protector in 2016 as a whistleblower, the date was given as 24 August 2016. This was prior to Adv Mkhwebane becoming the Public Protector.

Mr van Loggerenberg stated that this was correct.

Adv Bawa stated that she would come to the parts of the judgement that detailed what then transpired. Paragraph 7.11 indicated what transpired when he approached the Office of the Public Protector. She asked that he tell the Committee about that.

Mr van Loggerenberg stated that the meeting with the Office of the Public Protector occurred on 24 August. His approach to the Office had been a few days earlier. That was the date that was then agreed upon to meet at their Offices in Hatfield, Tshwane. He met with a couple of people, went through security and then sat there for a day-long interview, wherein he expressed his concerns. What he had to say may well have amounted to State Capture at the Revenue Service. He left there having given an undertaking to provide certain documents to the Office of the Public Protector, which he did by way of an email. These were sent from his personal email address to the email address of the Public Protector, together with the various annexures and everything else asked of him. That was provided in the email. He received acknowledgement of receipt to the documents provided.

Effectively, what he had tried to explain to the Office of the Public Protector at the time, was that a fake intelligence dossier, which was compiled by a former SARS official, who had been dismissed due to being involved in rhino poaching and possession of illicit firearms predating 2009 and 2010. That document was bandied about politically. The Revenue Service responded to that document in 2009 and again in 2010. Subsequently to 2014, in a very detailed fashion including to members of Parliament and the media etc, it was detailed. That document was titled ‘Operation Snowman’ or ‘Project Snowman.’ That was subsequent to another document, which referred to this activity of compiling the ‘Snowman’ document. In terms of the people who compiled the document – it was referred to as ‘broken arrow.’ These were responded to and dealt with properly many years before. By 2014, 2015 and 2016, it was as if SARS, in dispelling the nonsense, snowman had never occurred. It was as if ‘project snowman’ was brand new and just suddenly arrived late in 2014, 2015 or 2016 serving as confirmation supposedly of the existence of evidence that implicated that small investigative unit. The evidence he had provided the Public Protector was more than sufficient – had it been taken into account, he doubted there would have been Report 36 of 2019/20, or not in the manner done at the very least.

Adv Bawa stated that in paragraph 170 of the Judgement, the Court recorded, attached to Mr van Loggerenberg’s affidavit of two emails that were sent to the Public Protector in 2016, an array of documents that related specifically to the rogue unit narrative – a fake dossier titled ‘project snowman’ and ‘persons involved in capturing SARS.’ The Public Protector acknowledged receipt of the emails and annexures of 24 August 2016. These and some of his emails to his supplementary answering papers – correct?

Mr van Loggerenberg stated that this was correct.

Adv Bawa referred to paragraph 7.12. In paragraph 10 of the Executive summary to Report No. 36 of 2019/20 dated 5 July 2019, Ms Mkhwebane recorded that during the investigation process she ‘also tried to subpoena information and documentation from Mr van Loggerenberg but to no avail as his last known residence had new occupants allegedly having relocated some years before. She asked that he elaborate on that with reference to paragraph 7.12 of his affidavit.

Mr van Loggerenberg drew the Committee’s attention to what Ms Mkhwebane stated in the executive summary of that Report No. 36 of 2019/20. She sought documentation and information from him, in respect of the report but she was unable to do so – as it seemed as if she could not find him. He was not sure of the ‘sentence construction there.’ She seemed not to have been able to find him, as she used the subpoena mechanism of her powers. That was all that he could derive. He was not sure who alleged what – if the occupants had allegedly moved some years before, or the occupants alleged that he had moved. He then dealt with this sentence in the executive summary.

The point he wanted to bring across to the Committee, was that having said what he had just said, which was in the words of Adv Mkhwebane, which was in an official report, she had in her possession reams of evidence – which he had already provided to her Office, including contact details such as his email address and mobile phone number, but he had provided the Office with a lot more than just that. When one had regard of the subpoena of the 53 record, when one had regard of the subpoena, which he had seen formed part of the Rule 53 record – he did not know that address – it was non-existent. There were no confirmatory affidavits, from whoever served this. He did not know of such an address; he could not find it in on Google.

Adv Bawa asked if there was any return of service, relating to the Rule 53 record.

Mr van Loggerenberg stated that there was not. The other set of attorneys addressed Adv Mkhwebane in respect of a number of public statements and publications that she had made prior to the conclusion of Report no. 36 of 2019/20 on public platforms and social media, and other platforms, such as YouTube, which he had referred to earlier in his testimony. Both the letter by Webber Wentzel and the response by the Public Protector, to that letter, were attached to his submission to the Committee. That effectively asked the Public Protector to stop referring to himself and his people as ‘rogue’ and saying that they had ‘killed people’ as this was being investigated at the time. An apology was requested. Adv Mkhwebane’s position could be read in that letter – which basically said ‘if you want to take me on in court – do so.’ She did not say – he wanted to draw the attention of the Committee to the date of the correspondence and the date of Report no. 36 of 2019/20 – these were not far apart. If she was unable to find him by way of subpoena – he would have imagined she could have taken up the opportunity to say ‘by the way, come in and collect your subpoena, because I need documents and information from you.’ There was no reference to that.

Adv Bawa stated that the letter Mr van Loggerenberg was referring to was labelled GVL3 and it was attached to his affidavit, on page 84 of the Committee’s records, sent by Webber Wentzel on Mr van Loggerenberg’s behalf. That letter was dated 14 June 2019, and the response on behalf of the Public Protector was dated 17 June 2019. It was to be found on page 99.

Mr van Loggerenberg stated that this was correct. The final report no. 36 of 2019/20 was dated 5 July 2019 a day after that. He could not understand why the Public Protector had been unable to find him as he had written to her on that particular matter through his attorneys and her attorneys had responded on her behalf. Why had she not contacted his attorneys, whose contact details were also on the letter, instructing their client to come in?

Adv Bawa stated that it was said in paragraph 7.12.5, he had the same residential address from 2010. Given the powers that the Public Protector had at her disposal, she should have been able to find him.

Mr van Loggerenberg stated that this was correct. The day before he had checked on three different credit bureau records – one was entitled to one’s own credit record. It was clear that his home address had been his home address since 2010. His phone number had been the same since the early 2000s, this was subject to RICA – so that information was with the relevant authorities there. If the Public Protector was struggling to find an implicated party, more than a mere attempt to subpoena a document at one address would be expected.

Adv Bawa asked if Mr van Loggerenberg had any sort of social media presence.

Mr van Loggerenberg stated that he did. At the time he had a Facebook account which was widely followed, a twitter account and a LinkedIn account.

Adv Bawa stated that if one went back to page 187 of the Judgement, effectively much of what was told to the Committee was before the court and the court recorded this in the judgement.

Mr van Loggerenberg stated that very little of what was contained in his affidavit was in his own words – these were plagiarised from various court judgements or other documents that were uncontested. It was not the first time he was communicating any of this information.

Adv Bawa stated that from paragraph 187 of the judgement, it recorded the wording of paragraph 10 of the Executive Summary of the Report. The court made the statement that it was most surprising in paragraph 188, as the record showed, the Public Protector had in her possession reams of evidence, despite communication from Mr van Loggerenberg’s attorneys, made no attempt to contact him. The judgement went on, paragraph 190 where it set out all the knowledge that Mr van Loggerenberg had on the matter. She noted that he had already spoken to the interview held at the Public Protector’s office. She asked if the interview was recorded.

Mr van Loggerenberg stated that he was asked permission for it to be recorded at the time. He had given some conditions. One of which was that he should be protected as a whistleblower, bearing in mind the protected disclosures had only just changed in respect of covering former employees, which he was. He agreed with the staff, he did not meet the previous incumbent. He agreed with them on the manner in which it should be treated.

Adv Bawa stated that in paragraph 191 of the Judgement, the Office of the Public Protector said it was in possession of evidence for a number of years. The court concluded in paragraph 191 that the Public Protector adopted a one-sided approach to the investigation. She concluded an imperfect investigation that did not meet the high yardstick of reasonableness that was set in law. Her approach to the investigation was fallacious. How did it come about that he had given an affidavit in this matter? She asked that they talk about the main supplementary affidavit that was attached to Mr Pillay’s affidavit.

Mr van Loggerenberg stated that Mr Pillay and his attorneys, or legal practitioners, had approached him and asked him to study documents and consider if he was in a position to assist and provide additional information, confirmation and report to the court. He had agreed to do so. This was said in the affidavit. He detailed what the Public Protector would have known had she engaged with him before concluding her report.

Adv Bawa stated that effectively he had made the point that in the last sentence of paragraph 7.13.1.2, neither Ms Mkhwebane nor the EFF challenged a single fact of the evidence before the court in any manner or form. It stood uncontested.

Mr van Loggerenberg stated that this was a direct quote from the judgement.

Adv Bawa stated that this was correct. She referred to paragraph 194, where the court confirmed that no other party in the proceedings, including the Public Protector and the EFF had sought to respond at all to what Mr Loggerenberg had testified to in the affidavit deposed by him. Thus, it stood uncontradicted and unchallenged. The Public Protector had put up no facts or evidence either in the report nor in an affidavit filed in this matter that refuted the evidence provided by Mr Pillay, and by Mr van Loggerenberg. All that she had done in her answering affidavit was belabour evidence put up by Mr Pillay as simply his ‘views’ and opinions, and that she was not bound by it.

In paragraph 195 it stated that, ‘this evidence was the most egregious failure of the Public Protector to understand and honour the most basic requirements of the Office she occupied. It was plain that the Public Protector had approached the investigation with an unwavering commitment to her own preconceived views and biases. The manner in which the Public Protector had, and continued, to simply ignore Mr Pillay’s evidence, clearly demonstrated her manifest bias.’ The Judgment confirmed that his evidence was not dealt with at all in the court application.

Mr van Loggerenberg confirmed this.

Adv Bawa referred to paragraph 198 of the Judgement. It stated that ‘the court dealt with the equipment that the Public Protector seemed to refer to under cover of her redaction in her report. In her report she referred to three categories of equipment.’ She asked if he recalled that.

Mr van Loggerenberg confirmed that he did.

Adv Nazreen Bawa stated that this was also not challenged – what was said about the equipment. She asked if this was correct.

Mr van Loggerenberg stated that this was correct.

Adv Bawa stated that in paragraph 199, the Court said that the ‘Public Protector did not respond or challenge the evidence of Mr van Loggerenberg in respect thereto.’

Mr van Loggerenberg stated that this was correct

Adv Bawa referred to page 223 of the Judgement, he had referred to 81 investigations that he had identified as investigations that had been undertaken by the SARS unit.

Mr van Loggerenberg stated that this was correct.

Adv Nazreen Bawa stated that the court had said that the Public Protector had failed to reflect on any of the 81 investigations that were referred to – were investigated – nor how it was used in court, tax enquiries etc, instead the court had said that much was made of the recordings of Mr Janse van Rensburg, Mr Lombaard and Mr de Waal. The recordings were clearly a contentious issue. At that time the NPA ultimately refused to prosecute any of the members involved or implicated in these recordings. She asked if that was correct.

Mr van Loggerenberg confirmed that this was correct.

Adv Bawa stated that the Public Protector did not conduct any investigations of its own to verify the recordings nor conduct any interviews with the people concerned. There were no interviews nor affidavits from those persons, attached to the Rule 53 record. She asked if this was correct.

Mr van Loggerenberg confirmed that there were no interviews.

Adv Bawa stated that the court then said, that of all the witnesses, the person best suited to tell the public Protector what the unit did, was Mr van Loggerenberg. She failed to interview him and when he filed an affidavit in the review proceedings, she simply ignored his evidence. That was in essence at the heart of Mr van Loggerenberg’s complaint. She asked if this accurate.

Mr van Loggerenberg confirmed that this was correct. He stated that his complaint, which he had brought to the Committee to consider was really that if any of them could put themselves in his shoes for the previous eight years – wherein the Public Protector made findings which affected one directly – and other people directly after eight years without having bothered to call one - it would be tantamount to the Committee sitting without allowing Ms Mkhwebane to participate in the process nor afford her the opportunity to have her legal representative cross-examine him. He was not sitting there purely on his own behalf – but on behalf of every single South African, that was affected as a result of this. That was the justice and public interest that he had listed earlier on in his affidavit. It was a narrow issue. The person who occupied the Public Protector’s office should have contacted him and afforded him sight of the claims and conducted an investigation without fear, favour or prejudice. She failed to do all of the above. That was his complaint. He was disregarded as if he was completely irrelevant.

Adv Bawa stated that if one turned to the second affidavit, this was done in respect of supporting an application brought to interdict the report of the Inspector General. She asked that he elaborate on that.

Mr van Loggerenberg stated that in short, in the review proceedings of Report no. 36 2019/20, there was a document which Adv Mkhwebane referred to in her report, that ‘she had knowledge of the content thereof.’ He had quoted her on good authority. On that basis, she went and included some of this report, of the Office of the General Inspector of Intelligence dated June 2014. Her remedial actions included the implementation of whatever was in that report. Adv Mkhwebane stated that she did not have the report and it was certainly not part of the Rule 53 record. She merely ‘had something on good authority.’ Then it seemed to change, that there was in fact a report but it was mysteriously dropped off in the foyer of the building. There was no CCTV footage, which concerned him – that was an aside. Ultimately in argument, it was conceded that Adv Mkhwebane did have this report all along. During the proceedings, as soon as Adv Mkhwebane brought an interlocutory application to have that report classified by the Minister of State Security, who was the owner of the report (possessor of the report). In that interlocutory, he responded to what was by and large stated by another party to the interlocutory being the EFF, who supported the release of the report. In that interlocutory, there were claims made by the EFF on court papers – which the EFF said emanated directly from that Report, which they sought to make public and rely on. If that was indeed in the report, that affidavit would be his response. That was the purpose of that affidavit.

Adv Bawa asked if the contents of that affidavit had been disputed at all.

Mr van Loggerenberg stated that it had not.

Adv Bawa stated that the report recommended that the activities and functions of the SPU be investigated by the Inspector General of Intelligence. The report was referring back to a report from the National Intelligence Agency in the meeting held with the Inspector General of intelligence, Dr Setlhomamaru Dintwe on 31 January 2019, which confirmed that the Office of the Inspector General of Intelligence had indeed previously investigated allegations of an intelligence unit within SARS and confirmed the existence thereof. Apparently the then Inspector General, Adv Faith Radebe conducted an investigation on the intelligence unit within SARS and issued a report on 31 October 2014, which Mr van Loggerenberg was reliably informed was in the custody of the former Minister of State Security, Ms Dipuo Letsatsi-Duba from whom Mr van Loggerenberg tried to get a declassified copy of the report without success. She asked that Mr van Loggerenberg confirm if this was the report he was referring to.

Mr van Loggerenberg confirmed that this was the report he had referred to.

Adv Bawa stated that in the judgement it recorded that Mr van Loggerenberg had, since the declassified report was published, applied for the report to be reviewed and set aside.

Mr van Loggerenberg stated that this was correct.

Adv Nazreen Bawa stated that the report was the subject matter of case 116019, the papers from that case could be found in Bundle D. She asked if the application was opposed.

Mr van Loggerenberg stated that the case number was 91160 of 2019. The Minister of State Security and Inspector General of Intelligence initially opposed the application by filing a notice of intention. Subsequently, to filing that notice, they failed to file the Rule 53 record. Ultimately they, through the State Attorney, reviewed and set aside the complete report in totality – as he had asked in his application to be the order, this included a cost order.

Adv Bawa stated that this report was the order of the court, dated 31 October 2014, and included findings and recommendations.

Mr van Loggerenberg stated that this was correct.

Adv Bawa asked if he was only able to do so after the report was released by the Minister – she asked if he had sight of the report prior to this.

Mr van Loggerenberg stated that what transpired in a step by step process was that during the process of the interlocutory, when the arguments were closed, the EFF sought the Minister of State Security to declassify the report and make it public enabling them to rely on it during the review process. Subsequently, the Minister of State Security released a redacted version of the report. This was accepted by the Public Protector and the EFF. They then had the declassified report – that was the first time he had read it. His first response and the manner in which he sought to have it set aside – was based on the redacted version. It was so obvious who had said what. The judgement in terms of the interlocutory application came much later. It was simply of academic value. There was some kind of a compromise between the Public Protector and the Minister of State Security at the time. In the judgement, paragraph 2.50.2., the court dealt with the issue in detail. Under the remedial actions sought a remedy asking for the implementation in totality of the OIGI report was dated 31 October 2014. The court had said that it was the most astounding of all the remedial actions contemplated by the Public Protector. Firstly, the position or use of a classified report would clearly constitute criminal conduct on the part of Adv Mkhwebane, who as a former State Security Agency operative, remained bound by national security and intelligence legislation.

Adv Bawa said that a redacted version of the OIGI report was declassified but had subsequently been reviewed by the court and set aside. The court went on to state that the remedial action demanded by the Public Protector was not only irrational but was also unreasonable and in fact unlawful. Secondly, the remedial action against the Minister of State Security as provided for in paragraph 8.3.2 of the Report to the effect that all intelligence equipment utilised by the unit be returned, audited and placed into the custody of the SSA was incapable of being implemented because the remedial action arose from the impugned OIGI report which had since been reviewed and set aside. She asked if he had a comment to make about the equipment.

Mr van Loggerenberg stated that there was ‘no equipment whatsoever.’ The unit never purchased, acquired, used, borrowed anything that could be considered to be ‘spying’ equipment ever. It was not how the unit worked, and it was not how the unit was permitted to work. He did not know what was meant to be placed into anybody’s custody. He stated that the equipment used in the unit had nothing to do with that.

Adv Bawa stated that the equipment was described in his affidavit before the High Court and was not disputed. She asked if this was correct.

Mr van Loggerenberg stated that this was correct. He stated that he could extract this from the Rule 53 record. For some reason it was redacted in the published pdf. version of the Public Protector Report. If one looked at the court records, one could distinguish the three categories of equipment.

Adv Bawa stated that the judgement went on to state that the executive authority responsible for SARS was the Minister of Finance and not the Minister of State Security, therefore the court said that it was the Minister of Finance and/or the Commissioner of SARS who had the powers to direct that an audit of assets be conducted giving instructions on the disposal and/or handling of the SARS assets. She asked if this was correct.

Mr van Loggerenberg confirmed that it was.

Adv Bawa stated that thirdly, the remedial action in the OIGI report was inconsistent with the remedial action provided for in paragraph 8.5.1 of the Report. The OIGI report made provision that if an investigation against Minister Gordhan and others was to be conducted, then the aforementioned equipment should be confiscated and impounded in the SAP 1350 pending the outcome of the investigation and court processes.

Mr van Loggerenberg stated that he supposed the inconsistency was apparent.

Adv Bawa went back to paragraph 173 and 174 of the judgement. The Court said that the Public Protector briefly dealt with the equipment and employment issues and stated that there was sufficient evidence to counter the findings in the report. It was stated that ‘there were ample sources of information on the establishment of the unit, its activities, capabilities and equipment.’  It was suggested that the Rule 53 record amply demonstrated the vastness of these sources, which included anonymous complainants and whistle-blowers. It was argued that it could not with reference to the Rule 53 record, be contended that the Public Protector did not have access to information on the resources of this illegal spying unit within SARS.

As far as the interception issue was concerned the Public Protector stated the following:
“When this interview was conducted with the Office of the OIG, I was aware from the preliminary investigations that there was an unlawfully established and rogue spying unit established within SARS. The OIGI as set out in its report had concluded that the SARS had established an illegal spying unit which was engaged in corrupt and illegal activities. There are recordings of people working in the spying unit detailing how the spying unit performed its activities which are part of the Record in these proceedings. The content of these recordings demonstrates an abuse of the unit that should make anyone with a constitutional duty to promote, advance and uphold the Bill of Rights cringe. I was shocked to learn that SARS had established a spying unit to advance its statutory objectives. More importantly, the spying unit appears not to have operated lawfully but in a rogue manner.’ She noted that Mr van Loggerenberg drew one’s attention to the transcript that was contained in the Rule 53 record. She asked if Mr van Loggerenberg had by any chance listened to the entire record.

Mr van Loggerenberg stated that he had listened to the recording on a number of occasions to be absolutely sure. The transcript he had seen of that recording was not ideal.

Adv Bawa asked where he had gotten the recording.

Mr van Loggerenberg stated that it was part of the Rule 53 record provided to him by the legal practitioners acting for Mr Pillay.

Adv Bawa asked if he could tell the Committee what meeting was on the recording.

Mr van Loggerenberg stated that it was a meeting that transpired between two constitutional oversight bodies – the Public Protector and Inspector General of Intelligence. In this particular case it was Adv Mkhwebane and Dr Dintwe. The former Inspector General of Intelligence and persons from their respective offices. The Information Officer and Legal Advisor were present from the Inspector General’s office and there were some representatives of the Public Protector’s office. The conversation thereof was recorded.

Adv Bawa stopped him there. She stated that she had the recording and thought it important for the Committee to listen to it. For the most part, it was tested the night before, the sound personnel were able to get it to be reasonably clear. There were maybe parts that were unclear – if need be, the certified transcription thereof could be sourced. It was important that the Committee heard it. Initially she was going to tell the sound personnel where to cut and paste on the recording. In reconsideration, it was thought that this would cause more questions than answers. Thus, the entire recording would be played.

Mr van Loggerenberg thanked Adv Bawa. He would leave it to the Committee to decide what was being discussed in the recording. In his opinion, it was the rogue agents and unit in the SSA – while Adv Mkhwebane was talking about something totally different in SARS.

Recording of meeting between the Office of the Public Protector and Office of the Inspector General of Intelligence
The Chairperson asked that the recording be played.

Adv Dali Mpofu stated that he was unable to access the file, but he would not oppose listening to it.

Adv Bawa stated that it had been made available for a considerable amount of time. She had offered to send it to him if he did not come right in getting it off the system. He had not called her back; she would have sent it to him had he asked her for it.

The Chairperson noted this and asked if the Information Technology (IT) personnel were ready.

The recording was played.

The Chairperson stated that Mr van Loggerenberg would be with the Committee until 3pm that day. He would be back the following day.

Adv Nazreen Bawa stated that Mr Loggerenberg had brought the recording to the attention of the Committee as it concerned him. She asked in what specific respects he was concerned about the recording.

Mr van Loggerenberg stated that it seemed as if those having the conversation in the recording were talking cross-purposes. The content in respect of units, agents and operatives pertained specifically to the State Security Agency (SSA) and not SARS. Secondly, the conversation took place on 31 January 2019, a little more than five months prior to the conclusion of Report no. 36 of 2019/20. The Public Protector was in possession on that day at least of that Inspector General of Intelligence Report of 2014. She said so herself, five months before concluding her investigation. She did not provide that report to the implicated parties during her investigation. Nowhere in the report does it state that she was in possession of that report – in fact it stated the opposite, it explicitly stated that she was not in possession of it. The Rule 53 record, before the High Court, also did not contain a copy of that report. It was only during final arguments before the High Court that she ‘sort of admitted’ that she was in possession of that report all along. In her position as Public Protector and an officer of the High Court, she embarked on the interlocutory proceedings in that same review matter at taxpayers’ expense. She effectively opposed the interlocutory application brought by the Minister of State Security, who sought to prevent that report from being made public, as if she never had that document in her possession. To his recollection, that would have been around September/October 2019. When one listened to the conversation, where reference was made to that tiny little unit at the Revenue Service that was shut down way back in 2014 of six officials – she referred to it as ‘rogue’ and a ‘monster that must be defeated.’ She stated as a fact that the unit of six people still existed in January 2019 – five months prior to concluding her investigation.

What concerned him in a general sense was that there were seemingly 180 plus people who were ‘deep cover’ agents etc with all sorts of sophisticated listening devices, homes and houses full of cash (Dollars, Pounds, Euros and South African Rands), multiple passports and identities – some of whom were completely off the radar. Some of these people were located in State Owned Enterprises (SOEs), Law Enforcement etc, the very people who protected Members of parliament in the Police. The records of these people were destroyed by the former Director General of the SSA and the former head of SSA, Special Operations Unit. It was public knowledge that in the time he worked at SARS – they had certainly looked at some of these people and companies – this was public knowledge.

Adv Bawa referred to Bundle A, page 4236 of the report. Paragraph 2.1 stated that the first complaint was lodged with the Office on 12 October 2018, by an anonymous whistle-blower. The second complaint was lodged on 09 November 2018 with the Office by Mr Floyd Shivambu, the EFF Deputy President and Chief Whip (the Complainants).’ It was now known that the Inspector General’s Report came with an anonymous whistle-blower. On page 4247, paragraph 4.4.1.6 and 4.4.1.7, the key sources of information on which reliance was placed on the report – were letters going to and from the Public Protector and OIGI, dated 14 January 2019 and 15 January 2019. One also saw the subpoena (paragraph 4.4.1.8) sent to the Minister of State Security – it was now known that this was the subpoena for the report. Paragraph 4.4.1.9 stated that a letter from the OIGI to the Public Protector was dated 14 February 2019.

She referred to paragraph 5.2.25 of the report. It was known that the report recommended the activities and functions of the SPU be investigated by the Inspector General of Intelligence. It was known that a meeting was held with the Inspector-General of Intelligence and he confirmed that the Office of the Inspector General of Intelligence had indeed previously investigated allegations of an intelligence unit within SARS and confirmed the existence thereof. She asked if Mr Loggerenberg wanted to comment on that.

Mr van Loggerenberg stated that for the benefit of the Committee, he would simply draw the Committee’s attention to the title of the report, his founding and supplementary affidavit.

Adv Bawa stated the title of the report. She asked if that was what he was referring to.

Mr van Loggerenberg confirmed that this was. He stated that the report had done none of what it intended in the title.

Adv Bawa referred to paragraph 5.2.26, which stated that ‘apparently the then Inspector-General, Adv Faith Radebe conducted an investigation on the intelligence unit within SARS and issued a report on 31 October 2014, which … was in the custody of the former Minister of State Security, from whom he tried to get a declassified copy of the report without success. Those were dealt with in the papers on the matter as well. She asked Mr van Loggerenberg if that was correct.

Mr van Loggerenberg stated that this was correct. He stated that this was his point, if ‘no sight of the report or possession of the report’ was contradicted by the report.

Adv Bawa referred to paragraphs 5.2.27 and 5.2.34. Paragraph 5.2.27 stated that in an attempt to determine the veracity of the allegations of the existence and activities of the intelligence unit, ‘I sought more information from the Inspector General of Intelligence.’ This information was attributed to a report by the former Inspector General, Adv Faith Radebe dated 31 October 2014 (the OIGI report). Paragraph 5.2.27 was told that the veracity was confirmed with the Inspector General – was this correct?

Mr van Loggerenberg confirmed that this was correct.

Adv Bawa noted that paragraph 5.2.31 stated that a criminal case was opened against the former Minister of State Security for violation of section 11(3) of the Public Protector Act 23 of 1994. The report stated that she had it on good authority that SARS created a covert unit utilising covert and intrusive methods. She noted that the witness had a look at the declassified report. Were those contained in the declassified report?

Mr van Loggerenberg stated that to some extent, yes.

Adv Bawa referred to paragraph 8.3, recommendations were made that within 90 days of the issuing of the PP’s report, acting in line with the Intelligence Services Amendment Act, implement in totality the OIGI report dated 31 October 2014. The next recommendation was to ensure within 30 days that all intelligence equipment utilised by SARS be returned. She noted that this issue had already been dealt with. She stated that these recommendations were not implementable – was that correct?

Mr van Loggerenberg stated that this was what the court judgement stated.

Adv Bawa took him to the judgement before the court. She referred to paragraph 112 of the judgement, number 18 of the Bundle. It stated that the third report relied upon by the Public Protector was a report said to originate from the Office of the Inspector General of Intelligence. The report was issued on 31 October 2014, it quoted the Public Protector report and that she was ‘reliably informed that it was in the custody of the former Minister of State Security, Ms Dipuo Letsatsi-Duba.’ It was also stated that she requested the President’s assistance to make it available. The judgement basically recorded what was in the report. She asked if this was correct.

Mr van Loggerenberg stated that this was correct.

Adv Bawa referred to paragraph 113, it was stated that ‘the Public Protector relied on this report despite explicitly stating that she had not seen the report. She relied on it because she has it “on good authority” that it was found in the report that SARS had created a covert unit utilising covert and intrusive methods which was not in line with the SARS mandate and in violation of section 209(1) of the Constitution which empowered only the President to establish any intelligence service.’

Paragraph 114 dealt with the criminal charges, paragraph 115 stated that despite the fact that the Public Protector, according to the report had not seen nor verified the findings of the OIGI Report. The court was perturbed that the Public Protector further made her findings in respect of the OIGI Report, in terms of the Constitution and that it was difficult to understand on what basis the sections of the Constitution could notionally grant the power to rely on her report that she had not seen. Undoubtedly, despite the fact that the Public Protector had wide investigative powers, it did not follow that she could blindly rely on evidence that she was unable to verify independently and only became aware of on good authority. The court then sighted the authority of the Mail and Guardian. The quote was there but she did not take the Committee through it.

Paragraph 117 stated that had the Public Protector applied her mind to the OIGI report, not relied on good authority, she would have appreciated the shortcomings of the OIGI report and in-turn would not have issued the impugned remedial action. Had she applied her mind she would have realised two important aspects, that the Inspector General acted ultra vires in investigating SARS’ officials and activities, and Mr Pillay and Minister Gordhan were not afforded a hearing as the audi alteram partem principle was not adhered to before coming to her findings. Despite the fact that the Public Protector stated in the report that she did not have sight of the OIGI report before coming to her findings, the Counsel acting on behalf of the Public Protector asserted, in their third set of heads of argument that ‘the Public Protector made an independent assessment of the legal and factual questions involved in her investigation on the SARS intelligence unit and made her own conclusions.’ Counsel told her that she had the report – she asked Mr van Loggerenberg if that was correct.

Mr van Loggerenberg stated that this was his point. The point he had made was that as an advocate and Public Protector, Adv Mkhwebane did not disclose the fact that she had this report all along. She did not provide it to the implicated parties – she explicitly stated in the report that she did not have it, but only had it on good authority – it was not included before the court in. a court process, in the Rule 53 process. Only in litigation was it admitted that she had it all along. This was more than a year later.

Adv Bawa stated that another point was that an anonymous whistleblower could not lawfully have had the report, as it was classified.

Mr van Loggerenberg stated that this was correct and that Adv Mkhwebane had also made the point in the recording – putting it to the Inspector General of Intelligence, at the time. She acknowledged that nobody should have that in their possession, as it was a criminal offence.

Adv Bawa stated that it was an illegally obtained report that was provided anonymously to the Public Protector’s office.

Mr van Loggerenberg stated that this was correct. That could happen he was sure. The point was that Adv Mkhwebane lied about it. If only it had been made public or been contained in the report – then those implicated parties would have become aware of it. He was not aware that such a report existed. He only became aware of the report during the proceedings.

Adv Mpofu stated that if that was the intended answer then it was one that they took exception to.

Discussion
Adv Bawa took the Committee to paragraph 119 of the judgement. During argument, when counsel for the Public Protector was confronted with the contradictory statements in the heads of argument, the debate regarding the OIGI report took a bizarre turn. Counsel on behalf of the Public Protector conceded that despite the explicit statement that she had not had sight of the OIGI report in preparing it, she had in fact had it in her possession when drafting the report. The Public Protector now claimed that she subsequently received the OIGI report from an anonymous source who left it at her offices. Paragraph 120 stated that this turn of events was disturbing to say the least. It was difficult to label the Public Protector’s conduct in this regard, as anything but dishonest. She read through paragraphs 121 and 122. Paragraph 124 confirmed that the publication of the OIGI report was successfully reviewed and set aside and was incapable of being implemented. Paragraph 125 stated that ‘to add insult to injury, the Public Protector never provided the OIGI report to Minister Gordhan and Mr Pillay to respond to during the Public Protector’s investigation.’ She read through paragraph 126, which would be the subject matter for the Committee’s next witness.

The affidavits filed in the review application, she referred to paragraph 162, detailed Mr Pillay’s affidavits both in the review and interlocutory applications. She referred to paragraphs 9 and 10 of the affidavit.

Adv Mpofu wanted to place on the record the issue of Hassen Ebrahim (the legal expert who appeared before the Committee the previous day) . It would be ideal if he returned to the stand as soon as possible. The first for practical reasons, as his evidence gave a broad picture – the legal reason being that he was technically still under cross-examination. Until that was completed – all his evidence had to be discarded – he wanted to avoid that technicality. That would be discussed with Adv Bawa.

Adv Bawa stated that maybe one got lost going through a judgement that morning. She should have prefaced by saying what the context of it was. The context was the litigation that came from Report no. 36 of 2019/20. From a timeline perspective, what the Public Protector had decided was to do an investigation of the Minister and senior SARS officials. She split it into two reports. Page 2 dealt with the one report.

Remarks
The Chairperson asked Adv Bawa to pause.

Mr van Loggerenberg asked if he could be excused till the following day.

The Chairperson allowed this.

Discussion Continued
Adv Bawa stated that page two was essentially made up of two judgements at the High Court level. The first started on 29 July 2019. That was the interim interdict.

Dr M Gondwe (DA) asked that she go back a bit, to the splitting of the report.

Adv Bawa explained that there was an ongoing investigation. The Public Protector was investigating numerous complaints against Minister Gordhan and senior SARS officials. She decided to not do it all in one, but to split the report. Two reports thus were taken on review to court. The first report was the ‘SARS unit report’ matter. There were a number of other aspects in that report besides the SARS unit. The first judgement that came off granted the interdict against the implementation of the report. That went up to the Constitutional Court which upheld the interdict and stated that she was not to pay the costs in her personal capacity. That was one of the judgements on the cost issue that the Public Protector won. 

One 23 July 2019, the Minister of State Security launched an interlocutory application to interdict the dissemination of the classified report of the Office of the Inspector General of Intelligence. That was the application to which Mr Loggerenberg stated that he had done an affidavit in that matter, as well as the second affidavit. The first affidavit was in the main application, that they would come to. A judgement was only handed down on 29 October 2020 – nearly a year later - where the Judge said the interdict was granted by the Minister. Both Mr Pillay and Mr van Loggerenberg deposed affidavits in that matter on 29 September 2019.

On 2 August 2019, it was sought to have the Public Protector’s review report reviewed and set aside. Minister Gordhan initially brought this application as a Part A and Part B. Mr Pillay intervened to become a co-applicant. On 20 August, the Public Protector and EFF made the application on part A to the Constitutional Court and won on the cost issue. That hearing took place on 28 November 2019. The judgment was handed down in May 2020. The Committee had now gone through that judgement and she had told them what that judgement was.

Part B was heard by the High Court in August 2020. It was known that Mr Loggerenberg put in a substantial affidavit in respect of part B, and it was not in any way denied. On 7 December 2020, the High Court handed down a judgement in respect of part B of the application and set aside the report. There was an attorney and client scale cost order against the Office of the Public Protector. Adv Mkhwebane was ordered to pay 15 percent of that. There was an appeal that went to the three judges for an application for leave to appeal which took place in May 2021. While they may have appealed earlier, the judgement only got handed down on 26 May 2021. They then petitioned the Supreme Court of Appeal to request leave on that judgement. In September 2021 it was communicated that there was no prospect of success.

The President of the Supreme Court of Appeal was then asked to reconsider the decision not to grant them leave to appeal, this was dismissed with cost by the SCA in January of 2022. Subsequent to this dismissal of the SCA, that appeal was currently before the Constitutional court awaiting judgement. There was one matter pending judgement at the Constitutional court, which was the one on the SARS unit matter.

There was then the second report, which she would call the ‘pension funds’ report. Minister Gordhan launched a review application against that report, dealing with the early retirement of Mr Pillay on 28 May 2019. Mr Pillay launched an intervention application in which he asked for relief in respect thereof. As she understood it there was no opposition from any of the parties regarding the intervention. The matter was then argued in the High Court in September 2020. The judgement was handed down in December 2020 in which the Public Protector’s report was reviewed and set aside with the cost on an attorney client scale. There was no cost against the public protector in her personal capacity. There was leave to appeal the application in the High Court. In September 2021 there was a petition to the SCA which was dismissed. In January 2022, there was a reconsideration to the President of the SCA, which was dismissed. In February 2022, there was a petition to the Constitutional Court. That judgement was handed down almost a month before. The Constitutional Court dismissed that petition with cost. The pensions fund report was gone. The Constitutional Court had handed down the last application for leave.

Adv Mpofu confirmed that the case was not argued. Arguments were not allowed. The timeline was correct, once again it did not include the sections where the Public Protector was successful.

Adv Bawa stated that she was trying to show the timeline of the reports. The third report was more recent. This was brought to her attention by Mr Pillay – on 24 May 2022, he launched a review application against the Public Protector’s report relating to an entity known as Barone, Budge and Dominick (Pty) Ltd. 

She corrected her earlier statement regarding ‘an appeal pending before the Constitutional Court,’ there was an application for leave to appeal pending before the Constitutional Court.

She stated that with respect to case number 1, there was an application for leave to appeal the Constitutional court, which was dismissed with costs. To the best of her knowledge there had been no further decisions on the refusal for leave to appeal. That was how it stood. That could change the following week.

Adv Mpofu stated that he appeared in both matters, and even he sometimes mixed them up. As far was known, the timeline was correct. The only issue was that there was statement that he wanted to correct for the record, that Adv Bawa made, in respect of the genesis of the two reports. The statement being referred to was that ‘Public Protector elected to split the reports’ – he corrected this – these were two separate complaints completely. There was a legitimate reason that this mistake could be made.

Adv Bawa apologised for this and acknowledged the correction. The ten days for a decision had lapsed. The third case was before the High Court and there was no opposition.

She outlined what would be covered the following day in respect of Mr van Loggerenberg and Mr Pillay’s testimony.

Adv Bawa stated that she communicated with the Acting Public Protector in respect of the concerns relating to access to emails, that was raised by the Chair. She was provided with two letters from the Acting Public Protector that she would put before the Committee for public record.

Remarks
Adv Dali Mpofu raised concern about the letters. If this was a letter written to Adv Mkhwebane he had not been told about it. He would like to assess it first, in case there was material that should not be in the public domain. These were letters written between the Public Protector and Acting Public Protector. He had seen them, but he could not remember what they contained. Unless, Adv Bawa was doing this on the basis that there was nothing contentious.

Continued
Adv Bawa stated that there were two letters. The second letter, she would share Adv Mpofu’s views on. The first letter was part of the public domain, as part of the review report already. The letter essentially was addressed on 10 June 2022 from the Acting Public Protector to Adv Mkhwebane.

See letter from the Acting Protector to the suspended Public Protector.

There was a subsequent letter on 9 July 2022, by then she understood that the issue of the emails had been raised. As far as the Acting Public Protector was aware, she was advised by the Acting Senior Manager, that the necessary steps had been taken to ensure access to the email account to enable one to retrieve any historical email information. She intended to phone Adv Mkhwebane after that meeting to find out if she now had access to her emails. If not, the issue would be raised again.

Adv Mpofu stated that the latest information was that access to the email account had not been restored. He had mentioned this the day before. The Friday before it was thought that it was resolved.

The Chairperson asked the support staff to stay behind. All other attendees were excused.

Ms Maotwe asked that the same level of patience be extended to Adv Mpofu the following day.

The meeting was adjourned.