Video (Part 1)
Video (Part 2)
Pravin Gordhan vs Public Protector & Others
The Committee met virtually for its fourth day of hearings in the Section 194 inquiry into suspended Public Protector Adv Busisiwe Mkhwebane’s fitness for office. Witness testimony was heard, principally based on two affidavits, as well as an audio recording of a meeting held with the Office of the Public Protector and Office of the Inspector General of Intelligence.
The evidence leader continued where she had left off the previous day, asking the witness, Mr Johann van Loggerenberg, former employee at the South African Revenue Service (SARS), who was part of what was referred to as the ‘Special Projects Unit,’ the ‘National Research Group’ or the ‘High-Risk Investigation Unit’, to sum up what should be considered as important arising from his statement. Mr van Loggerenberg continued his evidence, undergoing cross-examination thereafter.
The Public Protector’s legal advice team then took the Committee through the various court judgments and documents, relating to the testimony to be given by the witness. It was noted that a process would be initiated to summon witnesses, including the President, former president and other politicians, to appear before the Committee. It was also warned that the hearings could take more time than allocated by Parliament. Members felt that it was a strategy to keep the Committee busy until the term of the Public Protector expires and affirmed that the process would not be delayed unnecessarily.
The Committee heard evidence from Mr van Loggerenberg. He had been accused of being involved in the so-called ‘illegal South African Revenue Service Unit.’ A number of key documents were presented, including his two affidavits and the Public Protector Report No 36 of 2019/20. It was highlighted again that the Public Protector did not consult him about the so-called ‘Illegal South African Revenue Service Unit’ despite him being the most appropriate person to confirm the accuracy thereof, given his management functions at the time. He also denied ever sharing taxpayer information with anyone.
The witness further noted that the Public Protector prejudged the outcome of the investigation by labelling it a ‘rogue unit’ while still investigating the matter. He was however accused of misleading the Committee by the Public Protector's advocate. The Committee accordingly dealt with evidence in this respect, being a lawyer’s letter addressed to the Public Protector and a transcript of a video press statement which was published by the Office of the Public Protector, wherein reference was made to the ‘rogue unit’.
The Committee stated that it was not a court of law and that the inquiry was not a quasi-legal proceeding. It would not entertain the line of questioning as it related to claims that Mr van Loggerenberg left SARS because of ‘his criminal activities’.
Mr van Loggerenberg would continue to be cross-examined the following day.
The Chairperson resumed the meeting from the previous day and asked Adv Nazreen Bawa (SC), Evidence Leader, to finish her 10 minutes. He would then proceed after.
Witness: Mr van Loggerenberg
Adv Bawa: I wanted to take you to your statement at paragraphs 9, 10 and following. I just briefly want you to sum up what you hope the Committee will consider, in your view, as being important arising from your evidence?
Mr van Loggerenberg: Without repeating what I stated in my affidavit; as submission to this committee, the point I really make is that Ms Mkhwebane, as the incumbent of the Office of the Public Protector and as the Public Protector herself, as a prerequisite is also required to be an advocate – rendering her an officer of the court. In both instances, both as a prerequisite for appointment as Public Protector and for admission as an advocate in South Africa, people are required to be fit and proper. I believe that the facts that are put before this Committee suggest that Ms Mkhwebane was not honest and factual in respect of case no 48521 of 2019. In fact, I don’t believe she conducted a proper investigation and that she was biased. I think she had already made up her mind that the unit was rogue because she referred to the unit like that. She openly stated that the persons associated with that unit, that she was still in the process of investigating, had been involved in the deaths of people and she predicted further deaths and threats of people since her investigation started. The fact that she failed to come to the one person who I believe was most capable of providing her with the facts is an indictment on the quality of the investigation. I can only conclude it was either incompetence or lack of effort to even the elementary aspects of the investigation, alternatively something worse, and may well have acted fraudulently by omission. One example of several that had been traversed during my testimony yesterday was the withholding of the fact that Ms Mkhwebane was in fact in possession of the 2014 Inspector General of Intelligence Report, and she did not provide that to those people that were implicated in the investigation to respond to. There are many other examples which I addressed in the court papers and the court. The court has expressed a final view on the facts before it, both by Ms Mkhwebane and by myself, and those facts stand. The matter has been ruled upon. I then make the point that even then, when I did have an opportunity somewhat to put facts to Ms Mkhwebane post her investigation, she remained unmoved. It was as if I had said nothing. She didn't respond to it, she didn't dismiss it; she didn't waylay it or engage with it whatsoever. I quote from a constitutional court judgment, which I'm not going to do again but I've plagiarized from that judgment, which states that the incumbent of the position of Public Protector is required by our Constitution to be independent and impartial. The Constitution demands that powers are exercised without fear, favour, or prejudice. It's then expressed I think, in the Supreme Court of Appeal, that those words fear, favour or prejudice are not just rhetoric. They mean what they say, and it calls for courage at times, and it calls for vigilance and conviction of purpose. I submit to this committee that Ms Mkhwebane in my case, failed to act without prejudice. She accepted unsubstantiated claims and wild accusations which I have proved to the court, and she elected not to engage on those at all.
I make the point, which I also made to the court, that had Ms Mkhwebane afforded me a hearing, then a lot of time and effort and money and heartache and trauma on many, many people, and whatever resources had gone into that investigation and the subsequent litigation and the aftermath, would well have been curtailed. Justice would have triumphed; it did not triumph in this instance. Ms Mkhwebane would have heard from me, the very person who managed that unit for almost the entire period of its existence. But more importantly, the entire nation would have known. I submit that Ms Mkhwebane failed the tests of what the court called courage, vigilance, and conviction of purpose. I elaborate then on what the features of an investigation ought to be in terms of the Supreme Court of Appeal. It's my view that the investigation was not an investigation – it was something else. It was a copy and paste exercise and it was just taking something that had been regurgitated before by the very same people, and then put up as if facts, and then making multiple errors. Simply put, my basic human rights and natural justice applicable to me and many others, including every single person that was ever a member of that unit, was simply cast aside by Ms Mkhwebane. I also made the point that I have absolutely no desire to sit before this Committee to debate the merits or the details of the matters because they've all been ventilated before court. They stand; the court has ruled. I don't think that is the purpose of this Committee. It is not my understanding of the purpose of this Committee. Whatever I had to say about that specific unit and the investigation report 36 of 2019/20 of the Public Protector under the hand of Ms Mkhwebane, I had stated in a number of affidavits on oath, before our courts, and I made the Committee aware of those in the Committee's and possession of those. They are fact as we sit here today; they are incontrovertible. I just make a point of the irony and it is something I alluded to yesterday. I tried to imagine being in Ms Mkhwebane ’s shoes and not being allowed to participate in the process that I'm appearing before and in the process that I'm about to be subjected to by her legal representatives. It was very easy for me to imagine that because that is what had been happening with me for the last eight years. Thank you.
Adv Bawa: I have no further questions.
Ms O Maotwe (EFF) wanted to raise an issue that had happened the previous day. This Committee was a committee of Parliament and followed the same rules as the Rules of the House of a sitting of Parliament because it was a committee of Parliament. As such, they were clear and more so it was a long session. As such, it assumed that one was in the House sitting of Parliament and as such, Members of the Committee were expected to have certain conduct. It was understood that the current session was very long and that some were on visual the whole day. Sometimes it ran into the early evening or late evening. She was disturbed by a video that she had seen the previous day of Mr van Loggerenberg holding a glass of whiskey in his hand. She asked if Mr van Loggerenberg could perhaps clarify whether he was drinking during a session of Parliament or not. If that was the case, then it posed his whole testimony of the previous day null and void. If one is under the influence, the legal gurus would assist with what happens when one is under the influence and whether their testimony can be considered or not. She just wanted to give him an opportunity to clarify whether he was drinking during the session of Parliament or not because there was a video that she could make available to the Committee, which video suggested that Mr van Loggerenberg was drinking whiskey.
The Chairperson said that whenever there was an opportunity for Mr van Loggerenberg to speak, he had seen him drinking coffee as far as he was concerned. However, he might have missed, miles away, seeing him drinking whiskey. He asked Mr van Loggerenberg, quickly and simply, whether he was drinking whisky.
Mr van Loggerenberg was aware of the video clip that the Member was referring to. It was him standing up at the end, just before the break for lunch, and the camera was still on. He had had a glass in his hand, which he picked and showed to the Committee. The glass contained medicine.
The Chairperson said that he was very satisfied with Mr van Loggerenberg’s response. With Adv Bawa having concluded, he took the opportunity to refer to the Public Protector's legal advice team led by Adv Dali Mpofu (SC), legal representative for Adv Mkhwebane, to start the cross-examination.
Adv Mpofu asked if he could be allowed to address the Committee for a few minutes, just to situate what he was going to say. It was important for him to say this before he posed any questions. He was going to cover two broad issues, but again, without necessarily debating them. One was very clear to him and it should be clear to everyone – especially after this witness, and he suspected the next one. The ambit of what they covered was very, very wide. He could not even tell how many people had come out with offers of giving evidence and all sorts of things just since the previous day. He had been inundated with those. This evidence, as all evidence, spanned all sorts of other possibilities of what might happen. He said this with all humility and thought that everyone should brace themselves for quite an extensive inquiry. They were not going to leave things that have been said and addressed, just so that they could go through the motions. This was a very serious process, and he thought at least everyone in the room agreed on that if the first witness, as it seemed now, was going to necessitate the kind of work that needed to be done. He could just mention a few things. For example, he had commented on four independent investigations that were done at separate points and he had suggested that those were discredited or not worth the paper they were written on. Now, that would immediately necessitate that the Committee be in possession of all or some of these reports. This was because, as he had said on the first day, the committee was not here to just rubber stamp or to confirm that a court found x or y. He knew that he and the Chairperson agreed on that point because if that was the case then the enquiry would not be needed as everyone could read English and could just take the judgment and read it. Then everyone would know that the court found what it found.
There was no need for everyone to be gathered here for that, but here for something completely different called an inquiry. That word was used advisedly, to inquire into the allegations of misconduct. Whether those allegations of misconduct were based on, for example, any person in the street who says they have come to the conclusion that Adv Mkhwebane is not fit to hold office or is guilty of misconduct. That person would say it out there in the street or write to the Chairperson or to the Speaker. If a Member converted that into a motion, then everyone would gather in parliament. It could not just be said that everyone was gathered here to convince themselves that Mr John Smith had said that the Public Protector was unfit. What they gathered here for was to inquire into whether what he or she said was indeed so or, as the Constitutional Court put it, whether that ground existed, and then they would move on – the fact that that opinion or view came from a court really did not take the matter any further. It was true, of course, that a court had a particular status in society, like a minister had a particular status in society. However, the fact that an allegation would have come from someone working in a taxi rank or from a minister did not change the nature of the inquiry itself. Or if it came from a bishop, one might think that it already came with a bit of weight rather than if it came from a servant. That was really the only relevance, of the fact that some of these opinions came from a court of law. Taking one example, if the court said that the Public Protector did not take into account the Inspector General's Report and therefore, she did not meet the standard of a Public Protector. Again, at the risk of sounding like a broken record, the Committee’s role would not be to inquire as to whether the court indeed said that, but as to whether she indeed ignored the report.
He was saying this just for context, and not patronizing the Chairperson or suggesting that he did not know what he was saying. The Committee was now dealing with only one of the judgments to do with the so-called rogue unit narrative. The Committee was going to go through the same exercise, painstakingly, around Vrede, CIEX, around all sorts of GEMS reports, on the new widened definition around everything Bosasa, and Baloyi, even though the independent panel had said that there was no prima facie evidence. On the decision of the Committee, they had to go through all of that. Now, for each of those, like this one, and he said this because he had realized just from yesterday in preparing for this session, that actually it might not even be possible to finish this witness without having to bring certain evidence or for them to consult with certain people, just because of things that could not be predicted. Regarding the stuff that could be predicted, they were ready for it and he was going to deal with it. He hoped that the Chairperson believed one thing, which was that the Public Protector’s legal advice team were committed to this process and the conditions that he had already gone into. That was why they would even go as far as they could, but he simply wanted to indicate that there might be off ramps and other issues. He said this in relation to this witness, and he suspected the next one, and Mr Pillay, who would not only deal with the so-called rogue unit narrative but was also going to deal with his so-called early retirement to do with Mr Pravin Gordhan. He could assure the Chairperson because he was involved in that case, that they had to sit before three judges for three days, just debating that particular issue – which was not usual. As lawyers, they had to be given a special allocation just because of the sheer volume of matter involved in that one case. He had just wanted to flag that. Sometimes it was said ‘be careful what you wish for because you might just get it’. So, an inquiry was wanted, it was here, and everyone was here. It was not going to be, he suspected, what it was thought it was going to be. Without being an alarmist, this was directed at the Chairperson in this example because he was sitting in the place where Chief Justice Zondo was sitting. That process was meant to take six months and it took four years. Even the report was given outside of the time that it was meant to.
The Chairperson said that in this process the Committee had to report in September.
Adv Mpofu said that that was what the Deputy Chief Justice said as well, until six or seven times later he had to ask for extensions. If this process was going to be fair and cover the ground that it needed to cover, it will never be finished in September. This was on his estimation; although it was just a view and might be wrong. He wished that it could be finished the following day obviously. People had been talking about the poor, and the poor were sitting there waiting for the Public Protector and she was sitting here.
The Chairperson had not meant to side track Adv Mpofu.
Adv Mpofu said that the Chairperson had actually assisted him because he had wanted to make the point that, of course, the report could be finished the next week. There was nothing stopping them. However, if the process was going to be fair and cover even the new ground that was now redefined, then it was going to take a lot more time than that. The second point was about witnesses. He inquired whether the directives had been adopted now. On Tuesday the Chairperson said that he was going to suddenly have a meeting of the Committee and so on, but on the record, they did not know whether the directives had been adopted.
The Chairperson said that they would be issued today. The evidence leader would speak to Adv Mpofu.
Adv Mpofu said that the evidence leader had tried to speak to him but he was consulting. Perhaps it was about that. If they were going to be issued by the Committee, therefore, that meant that they had already been adopted. It meant they were in the area of dealing, among other things, with the witnesses and the method of calling witnesses here. This was discussed two days prior, and adopted, and would now be issued. The theory of that clause was simply that they should identify a witness for both sides, call that witness or approach that witness. If the witness was willing, that was good. If the witness was unwilling, then the processes of summoning that witness must then be initiated subject to all sorts of things such as demonstrating that you have charted a voluntary route and so on. The tricky part in any process was that as the evidence developed, obviously certain witnesses that one might not have even thought about would become necessary.
The Chairperson commented that it was a dynamic process.
Adv Mpofu said that that was what was happening now. He wanted to comment on one thing. When he had spoken to his learned friend on Sunday when they were talking about the witnesses, one of the things he had said to her was that they intended for one of the charges, the one to do with Bosasa and CR17, to call the President as a witness. Her response was to do what you have to do, and he would have responded the same way if she had said it to him. He did not want to enter the debate that the Chairperson had had with Gen Holomisa the previous day because that statement was made and it was unrelated to that. He just wanted to explain that the Public Protector’s legal advice team were going to call the President and they were going to write him a letter today or the following day to ask him a lot in line with the directives if he is willing to come voluntarily. If not, then they would initiate a process for him to be summoned. It was not for the reasons of dealing with the issue of suspension and all that per se, but just on the merits. This was based on the fact that the President had made certain accusations against the Public Protector, saying that she was guilty of perjury and all sorts of things which would be impeachable if they are true. This would be seen when the work is done and when the letter is sent. He had then thought that would probably be as far they went, but from some of the evidence now and which he suspected would come from cross-examination, it looked like they might even have to call other former presidents. He did not want to put their names at the stage, but one of the charges had to do with a meeting with a president again. That might not be necessary. For example, they could go to that person and ask if they met with the Public Protector, and the person might say yes or no. They could then go to the evidence leaders and say whether they accepted it at face value. Obviously then they could not call someone here for something that would have been agreed. It would simply be registered to the Committee that this has been agreed. He suspected that with some of these people, it was not going to be that simple. With some of them, it might be that simple. Those were the issues that he had just been asked to place on record for now. The Public Protector’s legal advice team would continue to engage, and they would keep the Committee abreast of the developments. If any of those processes might have hitches, and some of them might even end up in courts of law, then he did not know. That was what they intended to do and they were going to do it. They were going to do anything that was going to assist this Committee in answering the question as to whether the alleged grounds in Ms Natasha Mazzone’s motion have been established or whether they exist. This would be done without any fear or favour, particularly for those matters that were actually covered in the charges. He just wanted to place those two matters: that they don't call it fear, the scope matter; and then the issue of the debt, what was called the dynamism of the process and the fact that certain patterns can already be seen. He had just mentioned two of the charges, this one and the one of CR17 and Bosasa. There were probably another ten charges for which each of what he had just said applied equally, or even with more force.
Dr C Mulder (FF+) thought that it was important that the Committee deals with what Adv Mpofu had now put on the table as well. From his perspective and his view, Adv Mpofu had indicated that the Public Protector’s legal advice team was here to assist the process. He thought that it was constructive and very positive. However, he also had to say, in his personal view, that he got the impression that there was a strategy to keep the Committee busy until the term of the Public Protector expired. This was just his view – he may be wrong. Adv Mpofu also said that there was a new way to treat this whole process because the new ground that ‘we’ have set. He thought that Adv Mpofu was referring to the Committee. He was not aware of any new ground being set. He thought that the Committee was dealing with the process in terms of what was set out right from the beginning and also in terms of the motion that parliament adopted – that was the Committee’s frame of reference and instructions. Adv Mpofu also just referred to the crimes. He was not sure that there were any crimes being referred to in the motion. He thought that it was a question of inquiry, or committee that looks into the conduct of the Public Protector in terms of whether she is a fit person to hold the Office. Adv Mpofu then went along and tried to convince the Committee by saying that Members cannot take the judgments of the courts at face value. Adv Mpofu’s words were that there were other institutions that also made allegations, referring to the example of ministers etc. He found this a bit strange. Adv Mpofu also said ‘these opinions’. He did not understand that they were allegations or opinions. He thought they were legal findings by legal bodies, namely the courts in South Africa, and the Committee would treat them as such. This was just his view – that these were findings by courts. It would be remembered that on day one it was said by the evidence leader, which he thought was exactly the correct position, that this Committee is not a court of law. It is not a quasi-judicial body. It is not a criminal procedure. It was going to do its work in determining in terms of its powers, and then it would make recommendations and report to parliament. From his perspective, if Adv Mpofu and the Public Protector were under the impression that the Committee was going to do the work that is already being done by the courts in South Africa, he thought that it was a completely wrong perception of what was going on. It was not the Committee’s task to be the court of Parliament. The Committee dealt with the facts as they got them. Perhaps the Committee could easily deal with them. Certain questions were asked the previous day and certain allegations were made. If the Committee is given the opportunity to ask them directly to the Public Protector herself, she could answer them. Lastly, he would have liked to understand, if Adv Mpofu said he wanted to summon the President or former presidents, he was under the impression that the power or prerogative to summon witnesses lies with the Committee. Perhaps Adv Mpofu could assist him and indicate, in terms of his interpretation, what would give the Public Protector the right to summon witnesses.
Adv Mpofu started with the last question. Dr Mulder was quite right – the power of summoning was with the Committee. That was exactly why he had started by asking whether the directives had been issued. However, it was known that power was triggered by either the evidence leaders or by the Public Protector’s legal advice team. It did not just fall from the sky. If the Public Protector’s legal advice team needed a witness, it was either a witness for the evidence leaders or for them. He supposed the Committee could also call whoever it wanted for its own purposes. He was not talking about witnesses of the parties, so to speak – so that was a simple thing. While the power did reside with the Committee, it was triggered by the person who wanted a witness logically. He was just saying that that person in the case that he just mentioned was the Public Protector. He did not think there needed to be very much about that. He did not want to go into depth on the next issue again. He had spoken about all these things in his opening transcript. The fact that this was not a court of law was exactly the problem. If it was a court of law, it would be simple because the Committee would just be bound by decisions of the higher court. It would be a straightforward matter. It was exactly because it was not a court of law, that the Committee was not bound by views and courts. Even if the Committee was, it would be bound by the legal findings. The Committee could not be bound by the facts. Even a court was not bound by factual findings of another court. It was a whole area of law and he did not want to get into it now. The distinction between questions of fact and questions of law was a matter that lawyers had debated ad nauseam. If Dr Mulder thought that it was simple, then he was afraid that he would be part of the problem. Dr Mulder also said that he had talked about crimes and that the Committee was not here for crimes.
He had just told the Committee that the President had accused Adv Mkhwebane of perjury. That was a crime. It was a crime in this country at least. Some of the issues that the Committee was going to deal with would be conclusions, and he had a list of some of the comments that were made, that this logic was fallacious or egregious – which were conclusions. The Committee would agree with those conclusions or not agree with them. Where it was direct, if someone said that the Public Protector was guilty of a crime, then it was a crime. It was not he who would say that, and that person was going to come here and justify that accusation or the Committee could not take it into account. The nature of the accusation was not in his 'gift'. It was whether it was in the 'gift' of the person who made that accusation. Regarding the new grounds in terms of parliament, he was not being facetious here. When he said the new grounds, he was simply saying that on the definition that they had asked, whether the Committee would be confined to the issues in respect of which prima facie evidence had been found, or whether they would reintroduce the sifted material. He had used the example the other day of when you sift, you sift stones and leaves. So you can either then take the product, or you can put back the stones and the leaves. In his language in isiXhosa, there was a test that was used where they wanted to check and they would give you a bucket to go and fetch water, but they open things around it. If you really used it and went back, then they knew that you were not okay. He was simply saying that it was either after the sifting, the Committee would put back the stones, or they did not. If they did, that was not his prerogative, but theirs. The Committee made that decision. He respected it but he was just talking about the implications thereof.
The last one was something that he said he would like the Chairperson to ask Dr Mulder to withdraw. The Public Protector’s legal advice team had been talking about respect here and had said that they respected this process. That respect, contrary to popular belief, was a two-way process. They would respect those who respected them. To say that there was a strategy to keep the Committee here until the end of the term of the Public Protector was a serious accusation, either against her or even himself and his team. Speaking for himself, and for the Public Protector, he took very strong exception to that suggestion even being made in this hallowed House. He had said that the Public Protector’s legal advice team had been accused of this and it was a very serious accusation. If that was true, if what Dr Mulder was saying was true, then the Committee must not have this inquiry. This was because it meant she was a criminal – as the President called her – if she could come here to waste the time of this august body to play a little game, so that she could finish her time. That was not the case. The Public Protector’s legal advice team was here to do the exact opposite because they had been getting these insults and slanderous remarks being made, that when she took the matter to court, it meant that she was playing for time even though the courts had indicated. That is why she was here sitting painfully, in the belief that this was an illegal exercise, but out of respect, as he had said before. He humbly asked the Chairperson for the remark to be withdrawn. It was false. It had no evidential basis. If he was simply saying that this might happen, he had even used the example of the Zondo Commission. He did not think that one could say Justice Zondo sat there for four years because he just wanted to sit in Braamfontein for four years, until he became Chief Justice or something like that. That would be absurd. The Public Protector’s legal advice team was doing the exact opposite of what they were being accused of, but going through a process that they knew was not even supposed to happen, to stop these kinds of situations.
The Chairperson hoped that just after this Adv Mpofu was now going to be ready to interact with the witness. Dr Mulder had said that he was raising his view and Adv Mpofu was not comfortable with the view he was raising. He asked if Dr Mulder wanted to comment on that.
Dr Mulder heard what Adv Mpofu had said. He did not address himself to the Public Protector but addressed himself to the Chairperson. Other allegations that were made, perhaps in the press or somewhere in the past with regard to legal proceedings, he did not make any of those allegations. He had listened to Adv Mpofu’s input this morning, in terms of how he saw the process, and wanted the Committee to do what had been done over the last couple of years in the courts. Adv Mpofu expected the Committee to do that. He gave Adv Mpofu his perception. He did not say that that was the case. He did not say the Committee said that that was the case. That was his perception. It was still his perception, but that was a perception. He was entitled to his perception and he did not state it as a fact. Luckily, he thought that Adv Mpofu would prove the Committee wrong that his perception was wrong, and that was up to him.
Mr X Nqola (ANC) wanted to question the Chairperson’s guidance in the Committee, that the proceedings should not lose shape. The Committee had a witness who was on stand that submitted evidence. The evidence leaders had concluded their cross-examination. Now, expected in terms of the operations of the Committee, was that the team of the Public Protector should proceed with cross-examination. As he was listening to Adv Mpofu, he had said a lot already, which was not covered in what the witnesses deposed. Adv Mpofu did not need to make an address on the intention of their team to bring a witness in this Committee. Adv Mpofu knew where and how they were going to bring witnesses to this Committee. There was no need to make an address about it. The "proceeding" would organize rallies outside, not here. He asked that the Committee proceed.
Ms D Dlakude (ANC) agreed with Mr Nqola in that this train should not be derailed. They were a Committee established based on the resolution of the National Assembly. They adopted the terms and references. They were guided by the rules of the National Assembly on how to operate. The Committee did not have any new grounds that were there for them to proceed with the inquiry. The grounds that they were working on were the grounds that were stipulated in the Constitution of the Republic of South Africa. What had happened was that when the rules were established, working with the parliamentary legal team, the Committee went as far as defining those grounds. The Committee understood that legal people, legal minds, sometimes did not agree themselves. She asked that the Committee not derail this process, and proceed as per the expectation of the people out there and also of this Committee. The Committee also had the witness that was waiting up there, and had questions for that witness.
Mr A Seabi (ANC) said that he was covered by Ms Dlakude but he just wanted to add that from the side of parliament, they had sourced the services of Adv Bawa, the legal evidence leader. From the side of the Public Protector, she has sourced the services of Adv Mpofu. The Committee’s expectation was that the two, together with the Chairperson, needed to have a back-room office and deal with other issues, especially issues raised by Adv Mpofu, so that by the time the Committee came here, they would have cleaned certain things. It would be seen to be wasting time if the Committee wanted to clean issues in the sitting. Adv Bawa and Adv Mpofu reported that they are able to call each other at night, in the morning and so on. In collaboration with the Chairperson, they are able to claim certain things. When they could not agree, and had serious differences to take a decision, that was when they could come here. That was the reason why the Committee sourced the services of such professionals. He added his voice, in that the Committee should take that route so that when they come here, as they convened in this fashion, they were able to be effective and move on.
Ms V Siwela (ANC) was covered by the Deputy Chief Whip and other colleagues. Her humble appeal was that as the Committee they knew exactly why they were here, as they had adopted the timeframe of this process. Again, according to her understanding, the Committee was not here to accuse anyone and there was no one who was guilty before them. Members were here to listen and it was then that they were going to make any determination. So, her humble appeal was to let God help the Committee to deal with this process in a scientific way, in such a way that Members did not harm each other. She was completely lost about what Adv Mpofu was saying here. Not to utter what other speakers had said, the Committee did not want to lose focus – they were here. This was not a real court, it was true, and they respected their legal teams and Adv Mpofu. However, the session had to respect Members also as a Committee, as they were not legal gurus, but they relied on them as their experts. Her humble appeal was to proceed and listen to those witnesses, because as a Committee they needed to jot down issues during their time when they cross questioned them. The Committee had to have facts, but to add a lot of things might confuse them. They were here to listen to those witnesses. She asked if the Committee could proceed in that way.
The Chairperson said that Adv Mpofu was to proceed to the witness but might want to give a brief comment.
Adv Mpofu said that he would not respond to everybody because three or four Members were saying the same thing.
Mr Nqola apologised as he did not want to be seen as a person who was interruptive. He did not know if the Committee was ever going to proceed with these hearings if everyone was submitting their opinion here and Adv Mpofu was supposed to respond. Members did not ask questions here. Members had just submitted, just like he did. Adv Mpofu had submitted his views. Members submitted theirs, and they were waiting for the guidance of the Chairperson. There was no need for Adv Mpofu to respond.
The Chairperson said that Adv Mpofu had already been directed to engage with the witness but Adv Mpofu started the session and asked to create a context and made general comments and he allowed that. He was going to do that with the evidence leader and Adv Mpofu. It was clear that the context Adv Mpofu had created invited the reaction. He wanted Adv Mpofu to start interacting with the witness, as he indicated the Committee had the witness until 15h00, but he could not stop him if he wanted to just make a final comment on what he had heard.
Adv Mpofu said that he would have been finished by now. The Member had interrupted him when he was saying that he was going to be short because many people said the same thing. That same Member had accused him of a rally and he did not want him to respond now. The Public Protector’s legal advice team was not going to be insulted gratuitously and then be gagged from responding.
Mr Nqola said that it was misleading to say that he had accused Adv Mpofu of a rally. All he addressed with Adv Mpofu was that he knew how to summon witnesses to appear in the Committee. He had said, and he referred to himself, that ‘we' would call issues of rallies outside. He had said ‘we’ – he never referred to Adv Mpofu. He asked to not be accused in this Committee.
Mr J Malema (EFF) said that the Committee was not going to be abused here by Mr Nqola, who thought that he had something special to offer when he had nothing to offer. Mr Nqola thought that he was a politician wannabe and made unnecessary statements, and then came and accused people of delaying this process. Members were all here, quiet, listening. Mr Nqola said Adv Mpofu commented and Members commented, then he does not understand why Adv Mpofu must comment again because they did not ask questions. Why did Mr Nqola comment when Adv Mpofu did not ask questions? He commented. He was telling us what he was going to do. All the Chairperson had to do was to allow him to say what he wanted to say and say to him proceed. But the Chairperson was allowing Mr Nqola to comment because they were commenting on him. Mr Nqola had accused Adv Mpofu of a rally and he wanted to come here and somersault, thinking he is the best politician this country has ever offered. Members had been keeping quiet. Mr Nqola could call order to where he wanted. That was going to be the game if he was going to start like that. Mr Nqola had to know now that this Committee was going to be characterised by that. If he thought he could call order when he has been out of order throughout and the Committee had been tolerating his nonsensical inputs, then he must know this.
The Chairperson wanted Mr Malema to refrain from that language.
Mr Malema said that it was nonsense. To say it was nonsense was parliamentary. It was nonsense.
Adv Mpofu said that the proposal of the backroom office was a good one, and they already had that as had been indicated. Sometimes he and Adv Bawa even chatted to the Chairperson informally, in an effort to try and curtail the technical stuff. Everyone who talked about derailing and wasting time was just missing what he was trying to do here, which was the exact opposite of that. He said that the sense of intolerance must not be uneven. The previous day, on a lighter note, he commented about the 45 minutes that were taken, putting in context by the evidence leaders. But now, when he addressed fundamental issues to preface his cross-examination, there were a whole lot of insults being thrown in his direction, which was completely unfair. He was going to move to the witness but just wanted to say that he had no confusion about what he was talking about, regarding the wide scope and the narrow scope. He wanted to leave the Committee with this question, again, to think about it overnight. What was the point of wasting those millions of rands having the independent panel if that work is not going to be taken into account? That was all.
Witness: Mr van Loggerenberg
Adv Mpofu: You describe yourself as a whistleblower, correct?
Mr van Loggerenberg: That's correct.
Adv Mpofu: Where did you blow what whistle?
Mr van Loggerenberg: It's evident in my affidavit from paragraph three, where I invoke the Protected Disclosures Act, and I submit everything I stated in the affidavit in terms of that.
Adv Mpofu: Do you know the Protected Disclosures Act is an Act that protects employees from disclosing information? What does that got to do with this?
Mr van Loggerenberg: I was a former employee of the South African Revenue Service. The matter concerns the Revenue Service.
Adv Mpofu: So, you are a whistleblower now at the Revenue Service?
Mr van Loggerenberg: Yes. The latest amendments in the Protected Disclosures Act extend the description of employee to include former employees.
Adv Mpofu: No, that’s in respect of dismissal, but that is fine. So, when you are saying you are a whistleblower, you mean in relation to SARS, or rather to your employment at SARS which ended in 2014?
Mr van Loggerenberg: Which ended in 2015, and I'm referring specifically to the definition ‘employee’ as contained in the amended Protected Disclosures Act.
Adv Mpofu: No, sir. Okay, I don't want to debate issues of law with you. I'm saying let's assume that you're correct in that, but that reference I'm asking is therefore with referral to your employment at SARS, which ended in 2015.
Mr van Loggerenberg: That's correct because the report relates to that.
Adv Mpofu: Alight. So, while we are on the subject of that employment, you were suspended from sales at some stage, correct? Were you ever suspended from SARS, from your employment?
Mr van Loggerenberg: Yes, I was in November 2014.
Adv Mpofu: November 2014. I think let's just talk about that quickly, since you want to talk about employment. Why were you suspended?
Mr van Loggerenberg: I don't know
Adv Mpofu: You were not told what happened; you were just told you were suspended? There were no accusations, false or true, that were made?
Mr van Loggerenberg: Correct. I was informed the day that I'm suspended.
Adv Mpofu: How so? You were just told, “Mr van Loggerenberg you are suspended”? You were not given any reason?
Mr van Loggerenberg: Correct. I was told I was not entitled to the reason for the suspension.
Adv Mpofu: Right. Were you accused of sharing confidential taxpayer information?
Mr van Loggerenberg: I've been accused of unlawfully sharing taxpayer information on multiple occasions, over many years.
Adv Mpofu: Mr van Loggerenberg you have held these Members now. I want to go home. Let's not waste their time. I'm asking you a simple question. You might have been accused 100 times. I'm just talking about one specific time in respect to your suspension. Were you or were you not accused of sharing confidential tax information?
Mr van Loggerenberg: I've just answered; I don't know why I was suspended.
Adv Mpofu: Did I mention the word suspended? I'm saying were you not accused of sharing taxpayer information?
Mr van Loggerenberg: I've answered you. I have been accused of it. Yes.
Adv Mpofu: At the time, in 2014 / 2015?
Mr van Loggerenberg: In 2014, in 2015, in 2016, up until today.
Adv Mpofu: Let me put it to you that you are just being unnecessarily evasive because you know that you were accused, around the issue of your suspension, you are accused of having shared taxpayer information – you know that. You are just evading the question. What do you say to that?
Mr van Loggerenberg: I can't answer you better than I have.
Adv Mpofu: Okay. Who were you accused of sharing the information with?
Mr van Loggerenberg: In early 2014, I was accused of unlawfully sharing taxpayer information with a lady that I had briefly dated. This adapted towards middle and late 2014 into 2015, that I had supposedly unlawfully shared taxpayer information with various persons in the media.
Adv Mpofu: Okay. So, the first accusation was that you shared confidential tax information with your girlfriend?
Mr van Loggerenberg: I did so unlawfully, yes.
Adv Mpofu: Yes. It's always unlawful. That's taxpayer information.
Mr van Loggerenberg: Not necessarily.
Adv Mpofu: Okay, but in this case, you had shared it unlawfully. So, you're saying you can share confidential taxpayer information with your girlfriend lawfully?
Mr van Loggerenberg: It depends on circumstances.
Adv Mpofu: Of what? Of you or the girlfriend?
Mr van Loggerenberg: It depends on the circumstances. It depends on the nature of the conversation.
Adv Mpofu: Let's make it easy. Just give me one set of circumstances where it might be lawful to share confidential taxpayer information with your girlfriend.
Mr van Loggerenberg: Where the girlfriend is providing information to me that pertains to the execution of my duties.
Adv Mpofu: Okay, and that then releases you from your legal duty to confidentiality?
Mr van Loggerenberg: No, in order to understand you have to engage, but the point is I didn't do so.
Adv Mpofu: So she was lying?
Mr van Loggerenberg: Indeed.
Adv Mpofu: And the girlfriend we are talking about is Miss Belinda Walter or Walters.
Mr van Loggerenberg: Walter without an ‘s’.
Adv Mpofu: So you are saying she was accusing you gratuitously?
Mr van Loggerenberg: She is falsely accusing me. She was very specific. She said that I had unlawfully shared confidential taxpayer information in relation to the then President Jacob Zuma, the Head of the EFF, Honourable Member Mr Julius Malema, and tobacco manufacturer British American Tobacco.
Adv Mpofu: So she said you shared that information with her?
Mr van Loggerenberg: She said I shared confidential taxpayer information unlawfully with her in respect of those three individuals. Well, the two individuals and the one business entity.
Adv Mpofu: And this was at the time when you were involved with the so-called rogue unit, or the unit, whichever term? Correct?
Mr van Loggerenberg: I don't understand the question.
Adv Mpofu: No, I'm saying the time when you allegedly shared the confidential taxpayer information would have been at the time that you were involved with the so-called rogue unit.
Mr van Loggerenberg: I couldn't recognize the term, sorry. I managed five units at the time when I dated Miss Walter.
Adv Mpofu: But one of them was the unit that you are saying was not rogue, which other people say it was. I’m going to say so-called rogue unit, I mean that one.
Mr van Loggerenberg: Yes, it was known as the High Risk Investigations Unit of the South African Revenue Service at the time.
Adv Mpofu: Yes. Otherwise known by other people as the so-called rogue unit.
Mr van Loggerenberg: I think it's disrespectful.
Adv Mpofu: Yes, but that's because you don’t think it was rogue. I'm saying those who think it was rogue called it the rogue unit. You know that, Mr van Loggerenberg. Let's move on. Don't you know that when people say the so-called rogue unit, they refer to the unit you headed?
Mr van Loggerenberg: Yes, but I've always been at pains to ask that people be respectful. You cannot paint 26 people just like that. It's the equivalent of being racist.
Adv Mpofu: Do you know what racism is? What do you mean by that?
Mr van Loggerenberg: You cannot just call a group of people something with a negative tongue. I don't think you even know the people. So I've always objected to the term. The unit was known as the High Risk Investigations Unit. I request that it be referred to that. It's disrespectful, that’s all.
Adv Mpofu: Well, they cannot stop me. I'm going to refer to it as the so-called rogue unit. The word so-called means, I mean that's how it was referred to by other people. But okay, let's try for the purpose of moving on at this stage, call it the unit. When I say the unit, you'll think whatever you think, and I'll think so-called rogue unit. So the accusation was at the time when you were heading the unit?
Mr van Loggerenberg: Yes, correct.
Adv Mpofu: And how old are you?
Mr van Loggerenberg: I'm now 53.
Adv Mpofu: So would it be fair to describe you as a security man, the person who is in that world of security broadly speaking?
Mr van Loggerenberg: I don't understand the question.
Adv Mpofu: Maybe I'll try and break it down. Did you serve in the South African Defence Force?
Mr van Loggerenberg: No.
Adv Mpofu: Did you serve in the Police? Where did you get your experience as a security person?
Mr van Loggerenberg: I don't know what security person means.
Adv Mpofu: High Risk or rogue unit dealt with security matters, didn't it?
Mr van Loggerenberg: The High Risk Investigations Unit conducted high risk investigations, as the name says. It does not deal with security. It dealt with South African Revenue Service tax and customs legislative-related offences.
Adv Mpofu: And one of the things you trained them in was use of firearms, correct?
Mr van Loggerenberg: No, I did not train them in firearms.
Adv Mpofu: And you were doing surveillance with what you call the mafia?
Mr van Loggerenberg: No, we were not doing surveillance with the mafia.
Adv Mpofu: Did you do surveillance with abalone rings?
Mr van Loggerenberg: Yes, on odd occasions we did lawful surveillance in order to collect evidence to prosecute tax and customs offenders.
Adv Mpofu: Lawful surveillance. What does that mean in normal English? It means listening to people or watching their movement or taking their photos? Just say it in normal lay, most of us here were lay people except Gen Holomisa.
Mr van Loggerenberg: It's like many of the Members of the Committee now observing me, and I cannot observe them, and I don't know who they are, and I don't know how many of them are observing.
Adv Mpofu: Okay, so what we are doing here is this is surveillance?
Mr van Loggerenberg: Yes. It is looking with your eyes in the public domain.
Adv Mpofu: So all human beings then are involved in surveillance when we look with our eyes?
Mr van Loggerenberg: Yes. The difference here is you do it where you have reason to suspect, say a state warehouse that is under the control of the Revenue Service is about to be robbed, then you place people there to observe the warehouse to ensure that it's not robbed and in the event that it's robbed, that you can act on the robber.
Adv Mpofu: And you would agree that the unit that you headed, some of the work it did intersected with what we generally know as intelligence work?
Mr van Loggerenberg: All five of the investigative units that I managed over those years can be described in the manner in which Adv Mpofu has just described.
Adv Mpofu: Oh, so you had five units?
Mr van Loggerenberg: It's common cause.
Adv Mpofu: Yes. All of them were involved in intelligence work.
Mr van Loggerenberg: No, your words were different. If you could just repeat what you said in your first question – it's a different question to what you're saying now.
Adv Mpofu: Yes. The first question was, would it be fair to describe the work that you did in the unit, and I thought you and I had agreed which unit we were talking about but you introduced five now, but would you agree that the work that you did in the unit involved what is generally known as intelligence work?
Mr van Loggerenberg: No, I would not agree. The first question posed to me by Adv Mpofu was whether I would agree that the unit can be described as having intersected with intelligence. My response to that was that it is applicable to all five investigative units that I managed. The question Adv Mpofu is asking me now is a different question. He's asking me whether others can describe the work conducted by the unit in question as being intelligence. My answer is no, it was not intelligence.
Adv Mpofu: Okay, would you go as far as to say it had nothing to do with intelligence? Or did it have something to do with intelligence?
Mr van Loggerenberg: I've answered you in the previous question, but it intersected from time to time indeed. They work together with the South African Police, the National Prosecuting Authority (NPA), the Asset Forfeiture Unit, all the law enforcement and intelligence agencies of the country.
Adv Mpofu: Now we know what security means. So those kinds of agencies, South African Police, National Intelligence, and the ones that you've listed, that's what I meant. Remember what we are doing now is because you claimed not to understand what I was saying when I say you were an operative in the security cluster, on the security sphere. You now understand what I mean by that?
Mr van Loggerenberg: I'm not sure.
Adv Mpofu: You don't know what security or law enforcement sector is? Are you not sure about that?
Mr van Loggerenberg: Law enforcement is different, that I understand yes. Security is one sector of law enforcement.
Adv Mpofu: Now at the time of your suspension, were you aware that there was an opinion by Adv Martin Brassey (SC), dealing with, among other things, your suspension, as well as the Pillay matter?
Mr van Loggerenberg: No.
Adv Mpofu: You've never seen such a thing?
Mr van Loggerenberg: No.
Adv Mpofu: Never heard of it?
Mr van Loggerenberg: I've heard in loose talk of Adv Brassey’s comments and document, but nothing's ever been put to me.
Adv Mpofu: Okay, I don't believe what you're saying but we'll deal with it some other time.
Mr van Loggerenberg: Perhaps you can provide it to me.
Adv Mpofu: Yes, I will. It's in the documents here. My team will call it up. That would inform the Committee.
Mr van Loggerenberg: I would appreciate that.
Adv Mpofu: You know that at one of the institutions that was set up, for lack of a better word, around your conduct or alleged misconduct was the Sikhakhane investigation, correct?
Mr van Loggerenberg: Yes, it became known as that.
Adv Mpofu: Yes, it became known as that but actually it should have been known as the investigation into the conduct of Mr van Loggerenberg.
Mr van Loggerenberg: That’s the title of the document.
Adv Mpofu: Yes, and one of the things you say to this commission is that the Public Protector must be impeached because, among other things, she placed reliance on that report, correct?
Mr van Loggerenberg: That's an oversimplification of what I'm saying. I'm certainly not saying that Adv Mkhwebane must be impeached. I'm simply participating in the Committee to display that Adv Mkhwebane ignored my basic human rights and natural justice in respect of Report 36 of 2019/20.
Adv Mpofu: Yeah, I know that. I mean we all heard it yesterday. She ignored you. She ignored you. As if you don't exist.
Mr van Loggerenberg: Yes. The same applies, by the way, to Adv M Sikhakhane (SC).
Adv Mpofu: You're not saying Adv Mkhwebane must be impeached? Is that your evidence now?
Mr van Loggerenberg: Not my evidence. I'm describing the nature of my complaint. It is for the Committee to make a determination. Not for me.
Adv Mpofu: Did you not say that Adv Mkhwebane is not fit and proper?
Mr van Loggerenberg: Yes, I did say that.
Adv Mpofu: So if she's not fit and proper, what must happen?
Mr van Loggerenberg: That I leave up to the Committee.
Adv Mpofu: Is it correct that Miss Walter is now overseas?
Mr van Loggerenberg: I don't know.
Adv Mpofu: You don't know. Okay. We are trying to reach her to get some more information, but one of the things that she has indicated is that you, you said you're taking medication, for what?
Mr van Loggerenberg: I’m undergoing a series of medical procedures on my jaw for the next couple of months. So it just causes a bit of discomfort and pain, and it's difficult to speak. But I’m okay. Thank you for the concern.
Adv Mpofu: Thank you. I'm sorry. I was just about to say I'm sorry then, because I'm here, or we're here, to make you speak.
Mr van Loggerenberg: It’s okay, I understand.
Adv Mpofu: Thank you so much. But you have not had a mental problem?
Mr van Loggerenberg: I don't know what do you mean? Can you be more specific?
Adv Mpofu: Have you had a psychiatric type of problem?
Mr van Loggerenberg: Yes, I was born with one.
Adv Mpofu. All right, thanks. I think we'll leave it at that. Ms Walter, maybe we'll deal with that issue if we manage to find her. Thank you. I just wanted to know that you are okay for this process, apart from the pain and discomfort for which I apologize.
Mr van Loggerenberg: I'm happy to explain to Adv Mpofu if he wants to know. I doubt whether Ms Walter will know more than I do. The affliction is my affliction.
Adv Mpofu: I'm sure she won't. But well, she might know it from the receiving end. I'm saying that the reason I was moving on is I didn't want to breach your confidential issues. That's definitely not my intention. So I think let's rather leave it at that.
Mr van Loggerenberg: I've written a book about this.
Adv Mpofu: Okay, well.
Chairperson: It's okay.
Adv Mpofu: Now Mr van Loggerenberg, we were busy with the Sikhakhane report. It's fair to say the Sikhakhane report found that your so-called rogue unit or whatever you call it was unlawful.
Mr van Loggerenberg: Yes, it did suggest that.
Adv Mpofu: No, not suggest – found that it was unlawful.
Mr van Loggerenberg: No, I don't think it made findings according to Adv Sikhakhane in later interviews he said all he did was recommend that the matters be further investigated.
Adv Mpofu: Okay, but let's not be legalistic about it, did he say that your unit was unlawful?
Mr van Loggerenberg: He did.
Adv Mpofu: Okay. And then there was also the KPMG report. It also found that the unit was unlawful and had some unlawful activities, correct?
Mr van Loggerenberg: Yes, it did but in a very general sense. It did say so in conclusion.
Adv Mpofu: But it did find it unlawful.
Mr van Loggerenberg: In the conclusion, which it withdrew, it did indeed make such a statement in a general sense without any explanation.
Adv Mpofu: But it did not withdraw the part that your involvement in the unit or that the unit was unlawful?
Mr van Loggerenberg: It did withdraw that.
Adv Mpofu: Okay, all right. Were you happy with that?
Mr van Loggerenberg: Well, I'm more happy now that the Revenue Service, we used KPMG and Adv Sikhakhane as service providers, has publicly rejected both reports and emphatically said that they were procedurally and substantively problematic and not to be relied upon for any purpose.
Adv Mpofu: Mr van Loggerenberg, we will move faster if you don't evade my questions. Were you happy with the alleged withdrawal by KPMG?
Mr van Loggerenberg: No, I was not.
Adv Mpofu: Why were you not happy?
Mr van Loggerenberg: I wanted them to do more. I wanted them to explain how it came about that they said the thing that they said.
Adv Mpofu: Yes, but there's a point I'm making. You complained about the alleged withdrawal of KPMG exactly because they did not withdraw everything in their report. It was a qualified withdrawal, isn't it?
Mr van Loggerenberg: It was one of the matters I raised at that point in time when only that portion was withdrawn.
Adv Mpofu: And then subsequently did they withdraw the portion you wanted to be withdrawn?
Mr van Loggerenberg: The whole report is void.
Adv Mpofu: No, I'm sorry, just answer my question. You're saying at that point in time you were unhappy because they had withdrawn a particular portion. I'm saying, and as we sit now here, did they withdraw the portion that you were unhappy that they did not withdraw?
Mr van Loggerenberg: Yes, they did. And I am happy.
Adv Mpofu: So there was another withdrawal. When was that?
Mr van Loggerenberg: There was one withdrawal. I've engaged KPMG since 2015.
Adv Mpofu: Okay Mr van Loggerenberg, perhaps it's me. I'm saying to you, there was a withdrawal which you were unhappy about, correct?
Mr van Loggerenberg: Correct.
Adv Mpofu: And that was the only withdrawal, correct?
Mr van Loggerenberg: Correct.
Adv Mpofu: So therefore, the part that you are unhappy about, they have never withdrawn, correct?
Mr van Loggerenberg: No, I said they did withdraw that. They withdrew their findings, conclusions and legal opinion. That is what was withdrawn.
Adv Mpofu: Yes, completely.
Mr van Loggerenberg: That includes the statement about the unit, that it was unlawfully established.
Adv Mpofu: We'll come back to that. The other independent body that found that unit was unlawful was the Kroon Report, correct?
Mr van Loggerenberg: No.
Adv Mpofu: They never found that it was unlawful?
Mr van Loggerenberg: No.
Adv Mpofu: Okay. But did they find about the units?
Mr van Loggerenberg: They made no findings. They issued a media statement in April 2015 and Judge Kroon explained it in quite some detail on oath before the Commission of Inquiry into Administration and Governance at South African Revenue Service in 2018, and subsequently also in a written public apology to me and other people.
Adv Mpofu: I think there's a problem either of what I’m saying or you comprehending it. You're jumping to 2018 now. This, what you're saying they apologize, what were they apologizing for? What did they do wrong?
Mr van Loggerenberg: They apologized for issuing a media statement.
Adv Mpofu: Saying what?
Mr van Loggerenberg: They endorsed the Sikhakhane report.
Adv Mpofu: Thank you. So insofar as the Sikhakhane report had found that it was illegal, it was endorsed, to use your word, by the Kroon panel, correct?
Mr van Loggerenberg: In April 2015, correct. Yes. It's not a finding. That's my point.
Adv Mpofu: Yes, whatever you call it. An endorsement; let's call it that, let's use your word. The finding of unlawfulness by Sikhakhane was endorsed by the Kroon panel, among others?
Mr van Loggerenberg: At the time, correct.
Adv Mpofu: Then the fourth body that found that the unit was actually criminal, and it went even further, was the Inspector General of Intelligence Report. That was the fourth body that found that the unit was unlawful and in fact, this time it said it was criminal involved in criminal activities, correct?
Mr van Loggerenberg: Yes.
Adv Mpofu: Can you tell us what was the Kanyane Report?
Mr van Loggerenberg: The Kanyane report was a panel that was set up to investigate the allegations made by Ms Belinda Walter against me, on 28 May 2014.
Adv Mpofu: About the thing we've already discussed; the leaking by you unlawfully of confidential taxpayer information.
Mr van Loggerenberg: It started with that, and then she added a whole string of false claims to that.
Adv Mpofu: Okay, which? Can you tell us those claims that are relevant to the issue of the unit?
Mr van Loggerenberg: None.
Adv Mpofu: Right. And insofar as the issue to do with the unit, you've already established that the alleged leakage of information was done in the context of the unit. What did the Kanyane panel find? What did the Kanyane report establish in relation to the leaking of taxpayer information?
Mr van Loggerenberg: It’s in the court papers. If you allow me, I can find that quickly.
Adv Mpofu: No, you can paraphrase so that we move on.
Mr van Loggerenberg: They found Ms Walter’s claims to be unsubstantiated. She undertook to go on oath and she refused to do so. She undertook to provide evidence and she did not do so.
Adv Mpofu: Okay, so she didn't appear before the panel?
Mr van Loggerenberg: I believe she did. I did not appear before the panel.
Adv Mpofu: You didn't. Okay, that's fine. She'll speak for herself.
Mr van Loggerenberg: The panel concluded its findings without even hearing me.
Adv Mpofu: I know that you feel very strongly about this issue; you've made this example of the Public Protector. Imagine the Public Protector being brought here and not being given an opportunity to be legally represented, remember?
Mr van Loggerenberg: Yes, I wish I had Adv Mpofu with me back then.
Adv Mpofu: The feeling is mutual, Mr van Loggerenberg. Well, if I tell you that that's exactly what parliament wanted, for the Public Protector to come here without Adv Mpofu. Do you think they must be impeached? The Speaker and this Committee, Members of this Committee, passed the rules which excluded legal representation, which the courts found to be wrong. That's not the point I'm making. I'm just saying do you think that the mere fact that they denied her audi alteram partem is a cause for impeachment?
Mr van Loggerenberg: I actually don't know enough and I feel uncomfortable to give a meaningful response that would honour the question posed by Adv Mpofu. I think the fact that Adv Mkhwebane is being represented in this process, and the fact that she is being afforded the opportunity to hear all of us and cross-examine all of us on oath and in public, openly, is a very good thing. It's how it ought to be. This was certainly not the case in the Kanyane panel, nor the Sikhakhane panel, nor the KPMG process, nor the Kroon media statement, nor the Inspector General of Intelligence process, and the Public Protector process. At no stage was I afforded what Adv Mkhwebane is being afforded now.
Adv Mpofu: We are together there, Mr van Loggerenberg. In fact, you are even in great company because the Constitutional Court agrees with you. That's why I'm here. I'm asking you a simple question, that the mere fact that the Speaker went up to the Constitutional Court to deny that right that you and I agree should be extended, which is the right of audi alteram partem, does that mean that the Speaker must be impeached?
Mr van Loggerenberg: Again, I don't think I'm qualified. It's not why I blew the whistle to this Committee. It's certainly not why I'm sitting here today, to debate complex legal issues that I don't feel comfortable in expressing a meaningful view. I can give you what my instincts suggest, but I don't know enough. I’m sorry.
Adv Mpofu: Okay, no. I forgive you. It was your example that I'm using actually. That's why I didn't want to come with complex legal issues. I'm just following your example, because you said this twice. You said it yesterday and today, that let's imagine what if the Public Protector was denied the right to a hearing or the right to legal representation? So I'm using your own example. But it’s fine if you are now finding it is complex.
Mr van Loggerenberg: Well, for me, the fact is that justice has been served. Adv Mkhwebane is sitting next to Adv Mpofu and she's participating in the process fully and it is in the open public domain.
Adv Mpofu: Yes, I agree. I've already said we agree. That's why we brought it to the highest court in the land. The point I'm saying is that the gist of your complaint is that you were not afforded the hearing. Am I right? Or you were ignored, to use your words?
Mr van Loggerenberg: If you want to simplify it to that level, yes.
Adv Mpofu: If you simplify it to that level, because you're ignored and not given a hearing, then Adv Mkhwebane is not fit and proper in your estimation, correct?
Mr van Loggerenberg: Yes, because she acted contra to her own law. I'm an implicated person. I was supposed to be not only heard, but be provided with what she was going to make her findings on and be afforded an opportunity to participate. And even if I wanted to, cross-examine people in terms of the specific process within the Act, if I so elected. None of that occurred. My complaint adds another aspect to it, and that is that Adv Mkhwebane, in her public statement, referred to this unit emphatically as a rogue unit, not as you do Adv Mpofu, as a so-called rogue unit. She then stated in no uncertain terms that people have died because of this unit, and that people’s names have been tarnished, and that this will still continue going forward, prior to her having concluded her investigation. She then made certain statements which we heard yesterday to the Inspector General of Intelligence. That is the essence of my complaint.
Adv Mpofu: Yes, I understand. Before we come to what you've just said now, I just want us to conclude what I was trying to say to you. If you can't answer it, I'll move on. I'm simply saying, maybe I'm doing it in an indirect way, let me do it more directly. You would agree that the mere fact that an institution, whether it's Parliament, whether it's the Public Protector or whatever, has wrongly and unlawfully denied somebody an opportunity for hearing does not necessarily mean that they are not fit and proper for their Office as a general statement?
Mr van Loggerenberg: As a general statement.
Adv Mpofu: That's all I need from you. Let's then come back to the statement that you just made now. You were saying if she had called it the so-called rogue unit like you and me, and if we had qualified it or say that's what people say, you would have been happy?
Mr van Loggerenberg: No, I would not have been happy.
Adv Mpofu: But you would have been happier?
Mr van Loggerenberg: No, I would not have been happier.
Adv Mpofu: So why did you then refer to the fact that ‘she did not refer to it like you Adv Mpofu as a so-called rogue unit’? What was the value of that?
Mr van Loggerenberg: Because there's a difference. She did so in her capacity as the Public Protector, who at that point was besieged with investigating allegations about that specific unit. She then calls that specific unit a rogue unit. That suggests to me that she considers the unit to be a rogue unit, not a so-called rogue unit. The difference in meaning, it's about semantics. I understand semantics is very important in this entire saga. It's like the claim that the existence of the unit has always been denied, while evidence shows it's never been done. What has been denied is that the existence of a rogue unit has been denied. There's a difference between the two.
Adv Mpofu: Well, I put it to you that what you're saying is bizarre, because that is exactly what Adv Mkhwebane was accused of saying that it was a so-called rogue unit like I did. And you've been misleading this Committee for two days now to say that she did not do that as I did it, correct?
Mr van Loggerenberg: No, it's incorrect. If I can direct you to my affidavit to this Committee, I don't know what the reference number is.
Adv Mpofu: I'm also working from hardcopies. It's 527. I don't know the bundle.
Mr van Loggerenberg: The bundle that I have, it is numbered two, and it's got a number one on the left and the number 70 on the right.
Adv Mpofu: That's 2.1.17. Does it have a typed page 527?
Adv Bawa: Sorry, Adv Mpofu, you've got the record of the affidavit that was filed in the public submissions. We then culled it and put it into the witness bundle. So it starts on page 70 of the witness bundle. Maybe it would be easy if you just use paragraph numbers?
Adv Mpofu: Yes, you're right Adv Bawa. It's not me who wants to use it, it is the witness. Then use the paragraph numbers, if you may, of the place that you want to refer to of your affidavit.
Mr van Loggerenberg: It was paragraph six, and it was the very last sentence.
Adv Mpofu: It says ‘For ease of reference…’?
Mr van Loggerenberg: Correct. It reads, 'For ease of reference and record purposes, I attach hereto as “JVL1” a letter addressed by my attorneys in this respect…’. If one scrolls down to JVL1.
Chairperson: JVL1 would be the letter from Webber Wentzel, correct?
Mr van Loggerenberg: Sorry, JVL3. It's my mistake. I apologize. Paragraph 1.1, the last sentence reads, ‘Your video can be accessed from the following link.’, and then there is a link to a YouTube video. If one listens to that YouTube press statement, which was published by Adv Mkhwebane in her capacity as the Public Protector, it was in June of 2019. She makes reference to the unit as the rogue unit on three occasions in that link.
Dr M Gondwe (DA): Can I please ask that we have a listen to the video, if possible, just for record purposes?
Chairperson: The video? Is it the one we listened to yesterday?
Dr Gondwe: No, there's a link there.
Chairperson: You want to listen to the video, the one that has been referred to?
Adv Bawa: Can I maybe make a practical suggestion that Adv Mpofu continues, we try and source it during the lunch adjournment so that we don't interrupt, and then do that.
Chairperson: Are we on paragraph three, Adv Mpofu. Just repeat what you want him to respond to in paragraph three.
Adv Mpofu: Can you read out paragraph three.
Mr van Loggerenberg: ‘In addition, your Facebook posts and tweets include the following false allegations regarding our clients: “Threats of arrest for money laundering, etc. and poisoning since I started investigating the so-called rogue unit”.’
Adv Mpofu: So she referred to it as the so-called rogue unit, which you just said you would prefer that reference, but did not tell the Committee about that. Am I right?
Mr van Loggerenberg: I do not prefer that reference and I've never said I'd prefer that. If this is an incidence where she does refer to it as the so-called rogue unit, if you go to the paragraph just before, which is paragraph two, I read from what is said in the video which I've drawn the Committee's attention to. ‘Your video at approximately 4:17, contains the following false allegations regarding our clients: “when it comes to issues of the rogue unit people have lost lives, people have been tainted and I think that is still going to happen.”’
Adv Mpofu: Yes, Mr van Loggerenberg you must listen to me very carefully. I didn't say that she did not on other occasions refer it like that. I'm saying this Committee must be given balanced information. Would you agree?
Mr van Loggerenberg: Yes.
Adv Mpofu: Nothing should be concealed from it. Would you agree?
Mr van Loggerenberg: Yes.
Adv Mpofu: Whether that is adverse to Adv Mkhwebane or favourable to her, the committee must be placed in a position to weigh all those things. Would you agree?
Mr van Loggerenberg: Yes.
Adv Mpofu: So if she refers to the unit as a so-called rogue unit, that would mean that at least at some point she acknowledged that that is how it is referred to by others. She was indicating that, which is what I was doing too, correct?
Mr van Loggerenberg: Yes.
Adv Mpofu: I was saying then the Public Protector, because remember, ultimately, that's what this is about, the Public Protector in your view is not fit and proper, among other things, because she correctly or incorrectly relied on these reports which said that the unit was unlawful and had exceeded the bounds of what is allowable in law, and even in the Constitution. Up here, I'm not debating for now whether indeed that is so, I'm just saying that the fact that she relied on reports done by senior counsel, by the judge, an audit firm, and the Inspector General of Intelligence – unrelated bodies, who all found that the unit was unlawful. You accept that she relied on those?
Mr van Loggerenberg: I accept that she relied on those documents, yes.
Adv Mpofu: In other words, it's not like she just woke up one day and decided, oh, let's go and harass Mr van Loggerenberg. They were independent bodies, and when I say independent I know you're saying, for example, they didn't give you a chance and so on. I'm not debating that. But I'm simply saying independent of the Public Protector’s Office. They were independent, or let's say external bodies that had found that the unit was unlawful – including one that was specifically dedicated to you, as the investigation on Mr van Loggerenberg’s conduct, correct?
Mr van Loggerenberg: I just want to make two points in respect of that, in response, One is that as the panels, or whatever we want to call them, were seemingly independent in the sense that those people that chaired those processes were independent of each other, the input, in other words, the unknown people who made these allegations behind closed doors, never to be seen or be put on oath, were the same. So in that sense, it was not independent. Secondly, in the case of the Kroon media statement, there was in fact no process. It was merely an endorsement of a prior report. That's my answer. The Public Protector then did not wake up one morning, as Adv Mpofu says, and decided to harass me. The Public Protector took those reports as is and ignored the aspects that I've mentioned and many other aspects that have been available in the public domain that cast significant doubt on those reports. And she then accepted them as if fact.
Mr K Mileham (DA): I apologize for interrupting your cross-examination Adv Mpofu. I'm just trying to understand the timeline of these various reports and the Public Protector Report 36. We know the Public Protector Report was in 2019 but when were these other reports made? When exactly were they overturned or withdrawn by SARS?
Adv Mpofu: Maybe Mr van Loggerenberg can answer that. As far as I know, the Sikhakhane report was never withdrawn by anybody or reviewed. But I stand to be corrected. It looks like Mr van Loggerenberg has other views.
Mr van Loggerenberg: The panel that became known as the Kanyane panel existed between June to August 2014. At that stage, there were no allegations or claims of any unit at the Revenue Service. They were purely claims made against my person. The person who made the claims ultimately did not go on oath as undertaken and did not provide the evidence as sought by the panel. The second panel came about shortly thereafter, around September 2014, which was chaired by Adv Sikhakhane, and that's why it became known as the Sikhakhane panel. Its report, I would come to discover later, was finalized in October 2014. That panel was also not set up to investigate any claims of the unit at all. In fact, there were no such claims. Paragraph 57 of Adv Sikhahane’s final report to the South African Revenue Service said that, I'm paraphrasing, during the course of the inquiry newspaper articles began to talk about the covert unit. It would be remiss of this panel to not look into those investigations and then elected to do so. Paragraph 57 then continues by saying ‘but by this time, we had already interviewed Mr van Loggerenberg’. It says somewhere else explicitly that it was not mandated to look into the unit – they took it upon themselves. The Inspector General of Intelligence process ran parallel to the Sikhakhane process. It commenced in August following media articles about various operatives and units in the State Security Agency. It seems to have also, which we discovered years later, concluded at the end of October – so more or less ran parallel to Adv Sikhakhane’s process. The Kroon board was announced to be appointed in February of 2015. It first sat in late March 2015 and it issued a media statement in middle April. In other words, they just existed for about a month or so by way of a press conference, and then they attached the Sikhakhane panel report or they allowed the Revenue Service to do so to their media statement. That was then the first time they came to read the Sikhakhane panel report. The KPMG process commenced in December 2014 and concluded somewhere around September/October 2015. That report was never officially released by the South African Revenue Service. It was leaked to the media; just as the Adv Sikhakhane report was also leaked to the media, just as the Kanyane report was leaked to the media.
If I can call it the controversies around the respective reports in terms of a sequence or timeline is as follows. In December 2014, the then Deputy Commissioner of the Revenue Service, Mr Ivan Pillay, obtained legal advice and addressed the then Commissioner of the South African Revenue Service, Mr Tom Moyane, highlighting the procedural and substantive deficiencies of the report, and he warned that the release of this report could have serious consequences. That was the first thing that happened. In January, February, March, April, and May, those five months, several of us sought advice to approach a court to somehow seek to review and set aside Adv Sikhakhane’s report. But we were advised by eminent advocates that it is not the kind of report that can be set aside because it's not an administrative action. It's akin to a legal opinion, and only once the Revenue Service takes action on the opinion can that action be considered potentially an administrative action, which can be reviewed and set aside. So we were hamstrung in that sense. I engaged Judge Kroon from early 2015, and this culminated in a complaint to the Judicial Service Commission, which was resolved amicably in March 2019, where he provided me with a written apology and he also addressed one to a number of people at the South African Revenue Service through the Judicial Service Commission. In the year prior, in 2018, around September, Judge Kroon also appeared as a witness before the Commission of Inquiry of the South African Revenue Service, wherein he recanted his media statement and said indeed they had made a mistake and he explained how the mistake came about. KPMG began to backtrack on their report as early as December 2015 at the Press Ombud complaint, when the Press Ombud inquired about the status, and the validity and the accuracy of the report by explaining to the press at the time something around the fact that the report was an internal report, not intended for public consumption. Shortly thereafter, in 2016, KPMG issued a statement to say that their report was not the result of a forensic investigation, but rather of a documentary review which had limitations. One of those limitations was that they were not allowed to engage with those people implicated in the report. Then towards middle 2017, KPMG withdrew the recommendations, findings and legal opinions and repaid the South African Revenue Service the full fee of R 23 million that they had been paid for the report. Their Head of Forensics at the time also appeared before parliament around that same time, in 2017 and in 2018, wherein which he also made a number of admissions. He also appeared before a panel in 2017 and 2018, chaired by Adv Dumisa Ntsebeza (SC), which was instituted by the South African Institute of Chartered Accountants, wherein he effectively stated something to the effect that some of the findings and recommendations were imposed upon them by external parties who were not part of the process, and that it was a copy and paste job – and I'm paraphrasing. So that's roughly the sequence of events. Towards the middle of 2019 is then when the Public Protector report comes out. I think if I'm not mistaken, it's in July, the 5th of July. And then the first time that I get to know that there is such a thing as the Inspector General of Intelligence Report of 2014, and that I get some insight during the interlocutory process in, I think, August/September/October of 2019. So that's post the publication of the Public Protector’s report. That’s how I would broadly sum it up.
Adv Mpofu: We will supply all those reports to the Committee – those that are not already before you today – when we lead our own evidence. Mr van Loggerenberg, I think I asked you to give the timeline but you gave more than that. So, let's get into some of the issues that you have raised now. Let's start with Judge Kroon. Do you know that Judge Kroon was sitting with, I think, six other people in his panel?
Mr van Loggerenberg: Yes.
Adv Mpofu: When he issued that apology, was he issuing it for himself or for the other people?
Mr van Loggerenberg: He was only able to do so himself. But he did say in explanation, both in 2018 before the Commission of Inquiry of the South African Revenue Service and also to me through the Judicial Service Commission, that around the time when they had issued the statement, the committee had come together because there were multiple media inquiries precisely on that particular issue. He then said, in no uncertain terms, in fact to me he said so on oath, that the entire panel had then agreed that they ought not to have issued that portion of the statement. That’s shortly after April 2015. It just never became public.
Adv Mpofu: Yes. So, you're suggesting that he was apologizing for everyone?
Mr van Loggerenberg: It would be the equivalent if Adv Sikhakhane apologized to me.
Adv Mpofu: I see. So, if six out of seven people apologize, is that the same as if one out of six apologizes in your estimation?
Mr van Loggerenberg: It is known as the Kroon Committee. He was the lead. He was the judge.
Adv Mpofu: We'll bring all that evidence at a later stage.
Mr van Loggerenberg: I think if I may just emphasize the point. What Judge Kroon said in no uncertain terms on oath, was that the entire panel agreed that they ought not to have issued that statement that concluded that the unit had been unlawfully established.
Adv Mpofu: He also mentioned that they had relied on the Sikhakhane report, correct?
Mr van Loggerenberg: Relied on the Adv Sikhakhane report and Mr Moyane and Mr Makwakwa.
Adv Mpofu: Yes. No, we'll come to Mr Moyane and Mr Makwakwa. The Sikhakhane report, you're saying it was discredited by whom?
Mr van Loggerenberg: Well, I gave a line-by-line response, which was published at the time and Mr Pillay’s response was far more sophisticated because senior counsel participated in that process. It was also published in 2014.
Adv Mpofu: Sorry, I'm sure you didn't hear my question properly. I was saying the Sikhakhane report was discredited by whom?
Mr van Loggerenberg: By me and by Mr Pillay.
Adv Mpofu: Okay, so then it must not be believed because you don't believe it – that you acted unlawfully?
Mr van Loggerenberg: I made use of a post facto audi alteram partem to reply.
Adv Mpofu: And what was the outcome of that? Did Adv Sikhakhane apologize for the panel as well?
Mr van Loggerenberg: No, he's never responded to it. I've only seen on two instances. In one, he gave an interview to a newspaper where he effectively said, again I'm paraphrasing, he said ‘look, you know, all I did was I collected allegations of what people were saying and I put that together for', and this is his wording, he says for ‘my bru’ with reference to Mr Pillay, 'to be aware of these things, and to look into it’. I've also seen another interview on YouTube, where he basically said, ‘look, we judge no one in that report’, including me.
Adv Mpofu: Indeed, but they found that the unit was unlawful. Maybe the unit is not a person, but that will take us to another debate.
Mr van Loggerenberg: The point is he may well have found so and he did. I've already confirmed that his report does make that statement, that the unit was unlawfully established. It is true. I'm saying that, for instance Mr Moyane, whilst he was occupying the position of Revenue Server, called for another legal opinion from another silk – a colleague of Adv Sikhakhane, who gave him a completely opposite view, also in writing. That, of course, didn't leak to the media, but it came out in time. Mr Moyane had that. Here he had two silks giving him two views, saying yes, no.
Adv Mpofu: I'm sure you know that is totally misleading. It doesn't work like that. Adv Sikhakhane was not giving an opinion, it was an investigation, but I don't want to quibble about that. His was a panel, not counsel giving an opinion, but let's not get technical. Do you accept at least therefore that that report has never been retracted or reviewed?
Mr van Loggerenberg: The South African Revenue Service, which is the client, which convened the panel, and which appointed Adv Sikhakhane and the other people, has formally notified Adv Sikhakhane and the public that they place absolutely no reliance on the report.
Adv Mpofu: Yes and when was that?
Mr van Loggerenberg: I wonder, if I'm allowed, I can quickly Google.
Adv Mpofu: You can't remember it?
Mr van Loggerenberg: I think it would have been in 2018.
Adv Mpofu: You can Google later just to complete the information if you are able to.
Mr van Loggerenberg: If you won’t hold me to it, and I will confirm it was in 2018.
Adv Mpofu: Yes, that's what I wanted. You have answered my question. I was going to say you can give a broad answer for now and then give the answer later.
Dr Gondwe: Because we were talking about when the various panels sat and gave reports, I would like to get an idea of who commissioned the Sikhakhane report. Who commissioned the Kanyane report? Who commissioned the Kroon report? KMPG? Of course, excluding the IGI Report.
Chairperson: Can a sheet be prepared for that to just list the issues, and not necessarily you responding to it now.
Adv Mpofu: Yes. I won’t deal with it now. Mr van Loggerenberg, the counsel that you are referring to or the opinion that you are referring to, is that of Adv Wim Trengove (SC)? Is that correct?
Mr van Loggerenberg: It’s one of them. There were many.
Adv Mpofu: Oh, you just referred to one. That is fine. Which one were you referring to now when you were talking?
Mr van Loggerenberg: The Trengove opinion.
Adv Mpofu: But you ever heard of the Brassey opinion?
Mr van Loggerenberg: No. I have never heard of it.
Adv Mpofu: Until today?
Mr van Loggerenberg: Until today.
Adv Mpofu: Have you read the reports that we are talking about? Sorry. I am unclear. The so-called rogue unit report and the Pillay report, which is the retirement report, you have read them?
Mr van Loggerenberg: Can you just direct me in which. I am not certain what Adv Mpofu is referring to.
Adv Mpofu: There are only two. My learned friend, Adv Bawa, took you through two judgments. The one relates to the so-called rogue unit report or the investigating unit report. The other one refers to what we call, my team, the Pillay report. That's the one that relates to the early retirement of Mr Pillay.
Adv Bawa: Correction. I said that I went through the interim interdict yesterday, going up to the Constitutional Court. I touched on the SARS unit judgment. The retirement or pension thing, the Mr Pillay related thing, I didn't go through that judgment at all yesterday.
Adv Mpofu: Okay. The other judgment was the Potterill judgment, which is the earliest judgment. Did you read the references to the opinions that are found in the report? Or rather, let me ask you the question anyway. Did you read the Pillay retirement report?
Mr van Loggerenberg: No. Not really. Not meaningfully.
Adv Mpofu: Did you put a supporting affidavit for Mr Pillay?
Mr van Loggerenberg: I did. I provided two supporting affidavits in the 48521 of 2019, which is the SARS unit matter, in September 2019.
Adv Mpofu: Alright. Now let's go back to the last of those reports, the Inspector General of Intelligence. No before that, you were arrested and charged. Correct?
Mr van Loggerenberg: No I was not arrested. I was summonsed.
Adv Mpofu: But you were criminally charged?
Mr van Loggerenberg: Correct.
Adv Mpofu: And who were you charged with?
Mr van Loggerenberg: I was charged with Mr Pillay and with Mr Andries Janse van Rensburg.
Adv Mpofu: Was Mr Janse van Rensburg one of the members of the unit?
Mr van Loggerenberg: He was the manager of the unit for the period preceding the time that I took over the unit.
Adv Mpofu: And are you aware of the statements or admissions, again I don't want to be too technical, by members of the so-called rogue unit about the activities that were made to inter alia Mr Moyane?
Mr van Loggerenberg: Can you be more specific, please?
Adv Mpofu: You are aware that Mr Helgard Lombard, Mr van Rensburg and a third person, I’ll give you the name now, had admitted to having participated in certain illegal activities?
Mr van Loggerenberg: No, that's not my understanding. I'm aware that there are partial recordings of conversations between Mr Moyane and Mr Makwakwa and Mr Johan De Waal and Mr Lombard.
Adv Mpofu: De Waal, yes.
Mr van Loggerenberg: And then I'm aware of another recording between unknown persons and Mr Janse van Rensburg – people I think, associated with the KPMG process. But again, they were incomplete recordings and out of context. I'm aware of those if that's what you're referring to.
Adv Mpofu: Yes. But insofar as they might be incomplete in the sense that maybe you don't know where the conversation ended, you are aware that they contained – I'm trying to avoid the word confession because it's a technical term – they contained admissions of illegal activities?
Mr van Loggerenberg: I listened carefully to all of those pieces as well as the others. That was not my conclusion.
Adv Mpofu: Alright, we will also lead that evidence when the time comes. Let me just, I'm just going to take one example. Were you aware that there were admissions around bugging NPA offices?
Mr van Loggerenberg: Can you be more specific please?
Adv Mpofu: Specific about what? National Prosecuting Authority?
Mr van Loggerenberg: I mean are you are you talking about something other than what we're talking about now, those recordings?
Adv Mpofu: No I’m still talking about the same thing. I'm talking about the activities of the rogue unit, or the so-called rogue unit. I'm saying are you aware that among those admitted activities included the bugging of the Directorate of Special Operations (DSO) and NPA offices?
Mr van Loggerenberg: I'm aware that those were the claims. Yes, I'm aware of the claims, the allegations. The facts are very different. Chairperson, if I may address you, please.
Mr van Loggerenberg: Chairperson, what I'm being asked about are matters that concern, according to Adv Mpofu, the unit that was investigated in and ultimately findings and remedial actions made in respect of Report 36 of 2019/2020. That matter was taken on review. Adv Mkhwebane put up her evidence and those people that took the matter on review put up their evidence. In the course of that, I was asked to submit what I could and be permitted in law to do because I have an oath of secrecy and I have limitations on me even as a former employee of the Revenue Service found in law. I then submitted everything that I could possibly say about that unit, and I did so on oath. It is now common cause between Adv Mkhwebane and myself. So, I'm just going to, if I may, refer to the document marked 2.4 which is my affidavit in High Court case 48521 of 2019, which is a supplementary founding affidavit by Mr Pillay. Attached to that then is an affidavit by myself. This is one of the affidavits mentioned in paragraph 162 of the actual judgment on this case by the court. When you go to paragraphs 7 to 16 and 38 to 50, I've said all that I could say in law about the unit. But I would like to just highlight the following in response to the question by Adv Mpofu. At paragraph 40: ‘I wish to confirm that the unit in all its iterations never used or acquired any sophisticated “spying equipment”, nor did it unlawfully or illegally spy on any taxpayer, customs trader or SARS subject under investigation, nor did the unit participate in the interception of anyone's communications between March 2007 to October 2014, which is the period of the unit’s existence.' At paragraph 42: ‘In this regard, I wish to further confirm that the unit in any of its iterations never conducted any investigations or lifestyle audits or tracking or spying as publicly alleged.’ At paragraph 43: ‘I wish to confirm that the members of the unit in all its iterations were never trained by SARS in mail theft, dumpster diving, cryptography interceptions of communication and the like, nor did they use such methods in any of their investigations.’ At paragraph 45: ‘I wish to confirm that according to my records and my ability to reflect such, the unit conducted 81 investigations during its lifetime, all of which as a prerequisite related to tax and/or customs and/or excise related organized crime and serious offences. In none of these investigations did the unit rely on unlawful spying of taxpayers or traders, illegal interceptions of communications of taxpayers and traders, sophisticated “spy equipment”.’ So Chairperson, my guidance that I seek of you is that these matters have been settled before our court. I've responded. In fact, what Adv Mpofu was asking me now, things that I submit to the Committee, the Public Protector ought to have been asked of me then. The opportunity came and went, and that is precisely at the heart of my complaint. Now in June 2022 I must sit before parliament and respond to things that Adv Mkhwebane could have asked me before July 2019. I've listened to the recordings; I know nothing about those things and I don't know how they can be attributed to the unit or any of the 26 people in that unit. It's like saying when Mr Mike Peega went and shot rhino, the unit is a poaching unit. You can't do that. Chairperson, if you could just help me. It's almost as if we are going back in time and re-litigating things.
Chairperson: Thank you, Mr van Loggerenberg. The first guidance I am going to give is to allow you and all of us to take a lunch break. That would be a proper first guidance, so that we think through things and we'll come back and give further guidance.
Adv Mpofu: I just want to, maybe if you allow me just to so that I can understand the speech. Mr van Loggerenberg, just before we go to lunch, I want to understand what you're saying. So you're saying that Adv Mkhwebane should have asked you these things before June 2019. Correct?
Mr van Loggerenberg: Before she concluded her investigation. That is why I'm sitting before you today.
Adv Mpofu: Yes, but do you understand why I am sitting before you. So you are saying she must not ask questions now because now it's July 2022. So what must we do if she did not ask you those questions in 2019?
Mr van Loggerenberg: No, she's welcome to ask those, but the point I'm asking guidance on is that the courts have ruled on these matters.
Adv Mpofu: Okay, we will deal with it when we come back.
Chairperson: I did hear your request. We're taking a lunch break now until 14h00. Please do what you need to do as part of your lunch break, except the whiskey.
The Chairperson said that Members still had to interact with Mr van Loggerenberg, so the witness could never be complete without him doing that. He wanted to say that upfront so that Members did not panic in this last hour. The Committee was now going to resume but before that he had to indicate that, just before lunch, the witness have registered to him his discomfort on the line of questioning and the fact that he would be going deeper into those issues that had been ventilated in court. He was going to urge Adv Mpofu to take that into account as he now proceeds with his interaction with the witness.
Adv Mpofu said that he would. In fact, the Public Protector’s legal advice team was still going to go to the judgments.
Witness: Mr van Loggerenberg
Adv Mpofu: Mr van Loggerenberg, the Chairperson is right. Let me also assist you. The reason why my learned friend, Adv Bawa, went through those extracts from the court records yesterday was effectively to do what she then did afterwards, which was for you to confirm your views on what she regards as the important parts. I'll be doing the same with you, but we're not there yet. Please be patient with us. I know that as you say you put many affidavits about this, but this is a new and fresh process altogether. Now, we were still dealing with the alleged interception of the NPA offices. You are aware that part of what the people who admitted to have participated in illegal activities under the auspices of your unit included surveillance or interception at the NPA, correct?
Mr van Loggerenberg: No, I know absolutely nothing about the matter. If I may just take you to the judgment in 48521 of 2019 at paragraph 223, because I'm obviously slower and I'm less than eloquent; if I may just take you there, please.
Adv Mpofu: You can.
Mr van Loggerenberg: I just want to answer Adv Mpofu’s question.
Adv Mpofu: Is that paragraph what?
Mr van Loggerenberg: Paragraph 223. The court said the following, "In order to consider if the investigative unit functioned illegally and unlawfully, one has to reflect on what they did and how they did it. The Public Protector failed to reflect on any of the 81 investigations and the manner in which the unit investigated, acquired evidence, or how this was used in court, tax inquiries and in seizures. Much is made of the recordings of Mr Janse van Rensburg, Mr Lombard and Mr De Waal. The recordings are clearly a contentious issue, but concerns three unit members out of 26 employees at the time. The NPA ultimately refused to prosecute any of the members involved or implicated in these recordings. The Public Protector does not conduct any investigations of her own to verify the recordings and does not conduct any interviews with any of the people concerned. 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." I want to add to that – that’s my point one in response to the question.
My point two is Adv Mkhwebane did not interview Mr Janse van Rensburg, she did not interview Mr Lombard and she did not interview Mr De Waal. She did not interview me. The recordings, as incomplete as they are, also contained conversations such as where Mr Moyane asks, pertinently, questions about any equipment acquired or purchased by the unit at any point in time. It's then explained in quite some detail how they did not purchase or acquire or use any equipment for any such purposes as implied or suggested or claimed. Point five, and that's the last point in response, is that Mr Janse van Rensburg was the manager of the unit from inception to March 2008. He then left the employ of the institution. Mr Lombard was a member of the unit for the same period, February 2007 until the 11th of April 2008, whereafter he was then moved to another unit. The so-called equipment that Adv Mkhwebane listed in her report is then equipment that Mr Lombard in the recording very specifically indicated had nothing to do with the unit, but were acquired by a completely different unit in SARS for a completely different purpose. I know of no persons that ever bugged offices of the NPA at all. I know of no such investigation or activity whatsoever. I have nothing further to say. I think the manner in which the court states it is perfect. Adv Mkhwebane ought to have asked me. I would have assisted her to the best of my ability, to determine the fact of the matter. But in order to establish the legality and lawfulness of what that unit did over the period of seven years that it existed; one has to look at what they did. Adv Mkhwebane did no such thing. This lies at the heart of my complaint. Yesterday, I said my complaint is very narrow. All I'm saying is that the investigation was not an investigation, because Adv Mkhwebane did not seek to obtain all the facts.
Adv Mpofu: You said that loud and clear. It was not an investigation because she did not speak to you?
Mr van Loggerenberg: Because she did not obtain all the facts.
Adv Mpofu: Yes, but mainly because it's ignored.
Mr van Loggerenberg: That too. She also claims to not have been able to find me.
Adv Mpofu: Yes, we are going to come to exactly that. That's why I'm asking you that question, but before we go there, are you serious that is the first time you hear that the unit intercepted the NPA or the DSO?
Mr van Loggerenberg: I’ve heard the claims.
Adv Mpofu: I'm sorry, Mr van Loggerenberg. I don't want to put words in your mouth. I know you said you know nothing about it. I just want to know; it might be that you don't know that it in fact happened. I'm simply asking you whether you've never heard of that allegation. Whether it's false, or true, put it aside for now.
Mr van Loggerenberg: No, I have obviously heard of those allegations.
Adv Mpofu: Okay, good. Insofar as that allegation goes, it is that the rogue unit intercepted the Directorate for Special Investigations and to spy on them in relation to the Selebi case, is that correct?
Mr van Loggerenberg: No, it is incorrect.
Adv Mpofu: And that spying was to find out if there might be anything which would then be reported, allegedly to President Thabo Mbeki? That's the first time you're hearing that as well?
Mr van Loggerenberg: No, I've heard multiple versions of the specific allegations. I don't know who's made that claim. But I have heard it, yes.
Adv Mpofu: You heard it, yes. That's why I'm saying let's forget about the veracity for now, but the allegation is that the spying was in connection with the Selebi criminal matter. Let me put it that way.
Mr van Loggerenberg: I think I’ve answered. I said it's one of the multiple versions of this claim. Right.
Adv Mpofu: And the recording you say you've seen or a transcript, I don't know if you've had the actual recording or the transcript, one of the issues covered there is this interception at the NPA.
Mr van Loggerenberg: I apologize, I'm very slow. I'm not understanding the question. Could it be rephrased perhaps?
Adv Mpofu: I was just rounding off this topic. I'm saying do you admit or do you agree that part of the evidence, or let's say the allegations, contained in the recordings have to do with the interception at the DSO?
Mr van Loggerenberg: No, I don't.
Adv Mpofu: Okay, so you've just heard it from, let's say, the grapevine – that version about Selebi and President Mbeki and so on?
Mr van Loggerenberg: I think it was in the media. It was all over the place. I don't specifically at this very minute recall where I first heard it. If necessary, I can go and try and find out for you.
Adv Mpofu: That's fine. You've listened to these recordings yourself, correct?
Mr van Loggerenberg: Yes.
Adv Mpofu: Alright. Now let's then come to your favourite topic, which is how you were ignored. So to understand it in context, am I correct that your, what you call your gripe, includes the fact that Adv Mkhwebane was unable to trace you at the time of the investigation? Correct?
Mr van Loggerenberg: It’s not a gripe. It’s a fact.
Adv Mpofu: But I thought you said that’s the gist of your complaint. Okay, that's fine. Call it whatever you want. But do you accept that the information that was given to Adv Mkhwebane by the investigators involved in this particular investigation was that they were not able to find you?
Mr van Loggerenberg: Sorry. Are you asking whether I accept that?
Adv Mpofu: Yes, because when I say do you accept something, it means I'm giving you an opportunity so that if we bring evidence to a particular effect, it cannot be said that I did not put it to you. Otherwise, we have to call you back and forth.
Mr van Loggerenberg: I understand. I accept. If that is what they say, I accept that. I just think they should come for tips on how to find people.
Adv Mpofu: That's true. So you're simply saying you accept it, but you're saying they could have done better?
Mr van Loggerenberg: If that is the case. As I said, the address on the subpoena is non-existent.
Adv Mpofu: Assuming these were people who are normally good investigators, Adv Mkhwebane would not have had any reason to doubt if they say they can't find you. Maybe you're right, with the benefit of hindsight now they could have gone to the internet or this or that or the other. But the point is, if they informed her that they cannot find you, she had to take that at face value.
Mr van Loggerenberg: It's a possibility. Certainly.
Adv Mpofu: Thank you. That's all I need.
Adv Bawa: Can I just understand. Are you putting the Public Protector’s version to Mr van Loggerenberg? I just want to be clear, so that I understand. Are you putting the version that your evidence will be if either the Public Protector or another witness takes the stand, that that's the version that will be before the Committee that you are putting to this witness?
Adv Mpofu: Not quite, because we still have to decide whether there will even be a need to do that. I'm happy for the sake of progress to say that's our vision, but I can't attribute it for now to this or that witness. But that's our vision. That's what I was explaining to Mr van Loggerenberg and I think he understands it. When I put something, he can always say no, he doesn't accept it. But I have to put it to him. Fortunately, this one he has accepted. Now, you would agree then that just for the sake of completion; assume for now that either the Public Protector or another witness will confirm that they couldn't find you genuinely. Maybe they are not, as you say, they must come to you for lessons on tracing and I'm sure many other things. But let's assume that she was given that information and she accepted it. Then you'd agree that all the elements or the aftermath of what you call your main complaint, would effectively be answered by that attitude from her? In other words, it was not because she decided I'm just going to close my ears and I'm never going to speak to Mr van Loggerenberg, but that you could not be found? You agree with that?
Mr van Loggerenberg: No I don’t because it still does not address the fact that the Public Protector addressed my lawyers three weeks prior to concluding the investigation.
Adv Mpofu: Yes. All those are what we call the benefit of hindsight. I'm talking about something different. Adv Mkhwebane is not here for writing letters or not writing letters. She's here, according at least to your evidence, because she would have consciously avoided the truth to put it crudely, by among other things, not contacting you. That's the theory, if I understand it correctly. Do you understand the difference between that?
Mr van Loggerenberg: Yes, except Adv Mkhwebane states implicitly that she did seek information and records from me and she did set about to subpoena me. So it was her intention to engage with me. Now, all right, if the version is that she sent some of her experienced investigators to deliver the subpoena, and for whatever reason or another they were incapable of getting hold of me and they went back to Adv Mkhwebane and said, we can't find this man, sorry, and she accepted that, that may be so. That may be a possibility. I'm not implying culpability in such a situation. But it does beg the question then, what is a Public Protector if one has regard for that Mail & Guardian case description that says, well I need this guy, I need his records and information in order to conclude my investigation properly and meaningfully. My guys can't find this character. What else should I do? And while this occurs, this character's lawyer writes to the Public Protector. She could have used YouTube to call me. I'm just saying, I understand what Adv Mpofu is asking me, and I'm saying all of those things are indeed possibilities. I don't know; it depends. One would have to hear from Adv Mkhwebane, what really happened there? How did it come to be that she did not manage to engage with me? And why not? I don't know. She never said anything in the court papers in response to it at all. So I don't know and I don't think it would be proper for me to sit and speculate and hypothesise about what could’ve and would’ve and should’ve. I don't think it's in the interests of justice or this Committee.
Adv Mpofu: Don’t worry about the interests of justice. If you want to ask to define what the interests of justice are, then we'll be here all day. In fact, coming to that, would you agree that you are not coming here as a legal expert? So the terms that you use, we must take them from where they come, as they say. I'm saying that in relation to the things you've said. You've set out things in your affidavit, which you’re saying are common cause. Do you know what common cause means?
Mr van Loggerenberg: I was assisted by a senior counsel and a very experienced attorney and my affidavit says where I make legal submissions I do so an advice of them, which I accept. So, I understand the broad meaning of the term common cause. It means that there is no dispute; that it is accepted by both Adv Mkhwebane and myself.
Adv Mpofu: Alright. Now, you understand that you were doing an affidavit to support Mr Pillay, correct?
Mr van Loggerenberg: I was asked to look at the papers and respond to parts thereof that I was legally capable of doing so.
Mr van Loggerenberg: Yes. In fact, I think yours was a philanthropic exercise as you explain it in your affidavit. You just wanted to assist the masses of our people.
Mr van Loggerenberg: Well, firstly, I wanted to help the 26 employees and their families.
Adv Mpofu: Yes, that's part of the philanthropy.
Mr van Loggerenberg: It's not philanthropy.
Adv Mpofu: It's kindness.
Mr van Loggerenberg: It’s the right thing to do. It’s called Ubuntu.
Adv Mpofu: That's philanthropy. Ubuntu incorporates philanthropy and caring for others. So maybe we should, let's stick to the vernacular. So you were doing that affidavit for Ubuntu, correct?
Mr van Loggerenberg: Yes, because it's the right thing to do.
Adv Mpofu: Insofar as Mr Pillay is concerned, you do understand that you were not the primary target of the investigation. The primary target of the investigation was Mr Gordhan.
Mr van Loggerenberg: I don't know. All I know is that the Act talks about implicated parties. I was an implicated party.
Adv Mpofu: Listen to me carefully. You said you have read the report. Do you know or do you not know that the primary target of the investigation was Mr Gordhan?
Mr van Loggerenberg: No, I don't know that.
Adv Mpofu: Even after you read the report?
Mr van Loggerenberg: We can go to the report. You can see what the complaints were. Some of those complaints related directly to me.
Adv Mpofu: Was there any remedial action about something that you should do?
Mr van Loggerenberg: Yes.
Adv Mpofu: What? What were you supposed to do?
Mr van Loggerenberg: Adv Mkhwebane. The one remedial action was that the recommendations of the Inspector General of intelligence report must be implemented.
Adv Mpofu: No, Mr van Loggerenberg. Implemented by you
Mr van Loggerenberg: No, it must be implemented by a number of law enforcement agencies and one of them was that I should be criminally prosecuted.
Adv Mpofu: Okay, I think we don’t understand each other. I'm saying; let me put it to you as a positive statement so that you can agree. There was no remedial action for you to take, in other words, to do something yourself, to prosecute someone, or to issue an apology or whatever.
Mr van Loggerenberg: No, that’s correct. Sorry. I misunderstood Adv Mpofu.
Adv Mpofu: No, no problem. And that is why the case 48521/19 is Pravin Jamnadas Gordhan and the Public Protector and so on, because the primary target of that report was him. Correct?
Mr van Loggerenberg: I don't know. As you say, I'm a layperson.
Adv Mpofu: No, you can’t be a layperson when it suits you. You've been telling us about common cause and all sorts of things.
Mr van Loggerenberg: Yes. I say that on advice of my excellent attorneys and advocates.
Adv Mpofu: I put it to you…
Adv Bawa: I don’t know if Adv Mpofu has the report in front of him, but I would just like to direct you to page 4236 and 4237 of the report. It specifically states what the complaint is, number one mentions the appointment of Mr van Loggerenberg and number two says Mr van Loggerenberg unlawfully received cash deposits paid directly into his personal FNB bank account from taxpayers and representatives under the investigation by SARS. So whilst I understand Adv Mpofu to say he wasn't expected to implement any remedial action, the first proposition that it didn't relate to Mr van Loggerenberg is not ruled out completely.
Adv Mpofu: Maybe my learned friend was not listening to me carefully. That's why I confined this to remedial action and use the word remedial action so many times.
Adv Bawa: I listened quite carefully. The second question related to remedial action. Your first question related to who you were investigating and you said it was an investigation into Mr Gordhan.
Adv Mpofu: It's fine. Let's erase that. I'll do it again. Do you accept that the primary target of the investigation was Mr Gordhan, like I said a few minutes ago?
Mr van Loggerenberg: No.
Adv Mpofu: And the second question was there any remedial action directed at you? I think you've answered that, I don't think you need to.
Mr van Loggerenberg: No.
Adv Mpofu: Let's go back to the issue of the primary target. Now, I put it to you, in fact, I was going to put it to you now when I was interrupted, that anybody reading that report would understand that the primary target, and I use the word 'primary' advisedly, of the investigation was aimed at the role of Mr Gordhan. There might have been secondary people mentioned, but the primary target was Mr Gordhan. Do you dispute that?
Mr van Loggerenberg: I don't know what is asked of me. What is the target?
Adv Mpofu: But how can you answer something you don't know. I asked you the question. You said no. What were you saying no to? I asked you about the primary target, Mr Gordhan. You didn't say you don't know. You said no. So you understood the question two questions ago, now you don't understand it.
Mr van Loggerenberg: No, I don't understand it in the context in which you are asking me. There wasn't just one target of the investigation. There were multiple, if you want to use the term targets, targets in the investigation. One of them being, and I suppose the most prominent one was Mr Gordon, certainly. But there were others too. I was one. That is why I'm here today.
Adv Mpofu: Mr van Loggerenberg, please just assist us. Do you know that when I say to you, the primary target was Mr Gordhan, that implies that there must have been other targets? If he was the only target. Why would I use the word primary? Just as common sense. I'm saying to you, you prefer the word prominent. Fine. Let's use your word. You accept that the prominent target of the investigation was Mr Gordhan.
Mr van Loggerenberg: Yes.
Adv Mpofu: Thank you. And you're one of the secondary targets in that sense, correct?
Mr van Loggerenberg: Yes, the less prominent.
Adv Mpofu: The less prominent, sorry, I will not use secondary. I come from Bantu education. So I use primary and secondary school.
Mr van Loggerenberg: I do too.
Adv Mpofu: Okay. The less prominent target is then here, as you are saying, that's why you're here, correct?
Mr van Loggerenberg: Yes, because my rights were affected.
Adv Mpofu: So maybe the primary target will also be here. But that's fine; that's a story for another day. The next issue that I want to talk about is the one that I think you wanted to go to. No, let's just tie up one of the things we dealt with in the morning. Did I hear you correctly that you said you did not get a hearing before Adv Sikhakhane?
Mr van Loggerenberg: I did not get a hearing in respect of many issues contained in his report.
Adv Mpofu: But he called you, correct?
Mr van Loggerenberg: Yes, on two occasions.
Adv Mpofu: Good. So you appeared before that panel twice?
Mr van Loggerenberg: Correct.
Adv Mpofu: I think from your book, you say that on the first occasion he was courteous and in the second occasion you are not that happy.
Mr van Loggerenberg: I'm glad my book is read by eminent people.
Adv Mpofu: Thank you. Flattery is not going to get you very far.
Chairperson: But is that a yes answer?
Mr van Loggerenberg: Yes.
Adv Mpofu: So at least to that extent you had some audi alteram partem hearings. Sorry for the Latin.
Mr van Loggerenberg: No. I had no audi alteram partem.
Adv Mpofu: So on both those occasions they didn't raise issues to do with allegations against you at all?
Mr van Loggerenberg: They did to an extent, as I said. A limited extent.
Adv Mpofu: That's what I'm saying. That’s why my question started with to that extent you had some audi alteram partem. Both of those words imply that it was not complete.
Mr van Loggerenberg: Yes. To a very limited extent.
Adv Mpofu: Okay, I won't go there. We won't go to whether it was a primary extent or a secondary extent.
Mr van Loggerenberg: Just for Adv Mpofu’s benefit, in the break I checked, the initial communication where SARS publicly removed the Sikhakhane report from the website was privately between myself and the South African Revenue Service in 2018. It was only in 2020, in other words after the Public Protector report, that the Revenue Service publicly communicated that they no longer relied on the Sikhakhane report.
Adv Mpofu: Okay, sorry, I missed some of that. I just was looking at something else. But I'm saying I'm happy. I’ll read the record for myself. The point I just wanted to register now was the fact that you had some kind of limited hearing before Adv Sikhakhane. I'm happy with that answer. You also said yesterday that the crux of your, and I'm paraphrasing, the crux of your complaint and why you're here is that she failed to act without fear, favour, or prejudice. So let's just unpack that a little bit.
Mr van Loggerenberg: That’s not what I said.
Adv Mpofu: You didn't say she failed to act without fear, favour, or prejudice?
Mr van Loggerenberg: No. I specified prejudice.
Adv Mpofu: No, Mr van Loggerenberg. You said this. It was on television; the whole country heard it. Let's not quibble about that.
Mr van Loggerenberg: That's reflected in my affidavit.
Adv Mpofu: No, I'm not talking about affidavit. Please listen carefully. Are you fine? Are you okay?
Mr van Loggerenberg: Yes, I'm just in a bit of pain, but I'm fine. I can handle it.
Adv Mpofu: Okay, I'm sorry about that. We only have another 10-15 minutes before your break.
Mr van Loggerenberg: We can cut to the chase. If I said fear, favour or prejudice, my emphasis is on the term ‘with prejudice’.
Adv Mpofu: So what must we do now? We must discard what you said yesterday?
Mr van Loggerenberg: You can adapt it accordingly.
Adv Mpofu: No, I'm going to stick with it.
Adv Bawa: I stand corrected, but I understood it to be a general proposition yesterday that under the Constitution, the Public Protector is obliged to act without fear or favour or prejudice. I'll get somebody on my team to check. My recollection seems to be that that was what was said.
Adv Mpofu: Well, firstly, that's not what was said. But even if it was said, it would be said in relation to Adv Mkhwebane because that's what we're here for. What was said, and you’ll find it on the news, Morning Live, is you said in her investigation she failed to act without fear, favour, or prejudice. I don't want to quibble about such a thing. You said it and the record will speak for itself. What fear were you talking about?
Mr van Loggerenberg: Just give me one second please.
Adv Mpofu: In fact, just to help you, you then say she failed in all of those. That's how you ended that sentence.
Mr van Loggerenberg: Yes. I recall that.
Adv Mpofu: I'm sorry. I didn't mean to interrupt. I'm kind of answering you and my learned friend at the same time. So when you said she, you meant Adv Mkhwebane, correct?
Mr van Loggerenberg: I want to answer you if you can just allow me. The terms I used when I said that was Adv Mkhwebane failed the tests of courage, vigilance, and conviction of purpose.
Adv Mpofu: On top of the fear and favour and prejudice, or instead of?
Mr van Loggerenberg: No, I said I made out a proper case that in my experience Adv Mkhwebane failed to act without prejudice. My reference to fear, favour or prejudice was a direct quote from Mail & Guardian.
Adv Mpofu: No, Mail & Guardian didn't say she. That's a court case. I'm saying you said she failed to act without fear, favour, and prejudice and then you say she failed in all of those. She was Adv Mkhwebane, correct?
Mr van Loggerenberg: Chairperson, I need your guidance. I don't recall saying that. I recall saying prejudice only where I had made reference to all three of those items, I quoted from case law and where I said that Adv Mkhwebane failed, I referred specifically to courage, vigilance, and conviction of purpose.
Adv Mpofu: Okay, that's fine. I'm sure you will catch it on Twitter. Let's go to the vigilance. How did she fail on vigilance?
Mr van Loggerenberg: You fail to acquire all the facts.
Adv Mpofu: I see. So, it goes back to that issue of not being able to find you.
Mr van Loggerenberg: No, it goes back to paragraph 223 of the court judgment.
Adv Mpofu: You like going to the court judgment. I’ve been saying we are going to go there but seeing that you are so eager I will take you there. Before we go there, you said that you left SARS because of state capture.
Mr van Loggerenberg: Yes. I deposed to quite a lengthy affidavit to the SARS Commission of Inquiry wherein I set the facts in detail.
Adv Mpofu: No, forget that. I'm talking about what you said here in paragraph eight of your affidavit of this commission.
Mr van Loggerenberg: Yes, I have confirmed.
Adv Mpofu: Let me finish. You said, 'I resigned from SARS in February 2015 as a direct result of state capture’.
Mr van Loggerenberg: Correct.
Adv Mpofu: What is that? What is state capture?
Mr van Loggerenberg: it's when a group of people, I'm giving you the layperson's definition, my definition, use nefarious or improper or unconstitutional or illegal or unlawful or a combination of those activities with a view to control, influence and take over the functions of a particular component within the state.
Adv Mpofu: You resigned from SARS because of those many big things?
Mr van Loggerenberg: Yes.
Adv Mpofu: Who was that group or those groups of people who made you to resign because of state capture?
Mr van Loggerenberg: They were very many. Just for sake of getting to the point, quickly, I would just group them into certain private businesses, such as Bain & Co. Certain individuals and business entities that were under investigation by the South African Revenue Service. Certain state officials deployed in the prosecuting authority, the Hawks, the police, crime intelligence and the State Security Agency, in the main.
Adv Mpofu: They don't have names?
Mr van Loggerenberg: They have names.
Adv Mpofu: Who are they, the primary ones?
Mr van Loggerenberg: I've listed them. Well, I can go into my affidavit quickly and list them for you if you want.
Adv Mpofu: You can’t remember them without going to your affidavit?
Mr van Loggerenberg: It's a very long list.
Adv Mpofu: I said just the highlights – the kingpins or queen pins.
Mr van Loggerenberg: You mean the most prominent individual?
Adv Mpofu: Absolutely.
Mr van Loggerenberg: Mr Jacob Zuma.
Adv Bawa: Can I maybe inquire from my learned friend, what's the relevance of all of this to this inquiry?
Adv Mpofu: No, I should be asking from her. That's the statement from the witness, which was put before this committee, if it was relevant, then why is it put here? What is it doing here?
Adv Bawa: The witness has explained here, what his understanding was of state capture. He’s explained to you the category of people he thought. The question I'm asking is what is the relevance of naming people to the relevance of this inquiry?
Adv Mpofu: It’s the same relevance. If he left SARS because of state capture, or whether he left because of the rogue unit. It's a relevant distinction and he has volunteered that he left because of state capture. You're correct that I asked him to define what it is because I didn't know what it means, and he has now kindly done so. So I want to know then, I'm probing further as to what role it played in his departure, because my vision is that he left because of his criminal activities.
Dr Mulder: Alleged criminal activities. That's quite important. We can’t have people guilty around here. Second, I'd like to Adv Mpofu why it is relevant why he resigned from SARS at all?
Adv Mpofu: I don't know, he put it here. Why are you asking me?
Dr Mulder: You're asking him why he resigned. Why is it relevant?
Adv Mpofu: Because he put it in his statement Mr. Mulder, which part of that is not clear? If it's here, this is an inquiry. He says, 'This affidavit is therefore submitted specifically’, he says, at paragraph six, ‘pursuant to the public invitation by Parliament of the Republic of South Africa, to any person willing to provide evidence in respect of the conduct of Miss Busisiwe Mkhwebane.’ In that affidavit, he tells us at paragraph eight that he resigned from SARS as a direct result of state capture. And you are asking me to explain why that is relevant?
Dr Mulder: The witness indicated that he resigned because of his perception of what state capture was. He explained what it was too according to him. It's surely not up to him now to rephrase the whole Zondo process and say, exactly in detail what state capture implies. That is not on our agenda at all. He gave his interpretation that he in terms of his perception resigned because of his perception about state capture. He gave his definition about that. Going now into the details of names etc., is really not on our table.
Adv Mpofu: I'm going to ask the question, because it's relevant to what the witness deemed to be relevant. If it was relevant for him to give the definition you are talking about, then why is it not relevant to go deeper as to why what he has defined made him to depart?
Dr Mulder: With all due respect. I did not hear the witness say that it's all that relevant. He was asked by Adv Mpofu about the relevance of state capture and then he gave his definition as a layperson. I think that settles it.
Adv Mpofu: That settles it for whom? I'm the one asking questions here. I'll tell you when my question is settled.
Mr Mileham: Just on a point of order, Adv Mpofu you asked to be treated with respect. You asked that repeatedly. I would ask that you treat the Members of this Committee with like respect.
Adv Mpofu: Okay, don't shout at me please.
Mr Mileham: I'm sorry. I'm not shouting. I'm asking you politely to treat the Members of this Committee with respect. Dr Mulder asked you a question and you responded aggressively. Kindly, please stop interrupting members when they are talking and kindly address Members of this Committee with appropriate respect.
Mr van Loggerenberg: Perhaps if it may advance the process, nothing turns on, in my view, and nothing was intended to turn on my recordal of having resigned from the Revenue Service directly as a result of state capture. You will see in the numbering, I think its point eight, it starts off with point seven now. Point 7.1 tells you when I commenced my service at the South African Revenue Service until then, starting at a relatively junior level and climbing these ranks, which is a common cause item between Adv Mkhwebane and I. Whereas point eight is not a common cause point. But I felt the personal need to close the loop from a factual perspective only, nothing in respect of my grievance before this Committee turns on point eight. Unless the Committee believes otherwise, I don't think too much needs to be made of it for purposes of this Committee's process.
Adv Mpofu: Well, you're the one who put it there. But before I ask you my next question, I just want to respond to the Member from the DA, to say that I don't know what he's referring to about disrespect. I think the only person who has been insulted here this morning is me, about speaking at rallies and dragging this until the end of the contract and all sorts of things like that. As I said this morning, if I've offended you then I apologize. But I believe, and I'm sure Mr van Loggerenberg will agree with me, that when he talks about Ubuntu, that respect is a two-way process. It must be earned. And I'm here to respect everybody, especially those who also respect me and my client. I'm not here to cower to anything. I'm here to just do my job and to do it with as much self-restraint as possible. If you understood the amount of self-restraint I have to exercise.
Chairperson: Thank you. I think you've made your point. I want you now to just go to your last question.
Adv Mpofu: The Member has just acknowledged – we understand each other.
Mr van Loggerenberg: Chairperson, I just want to draw your attention to time, please.
Chairperson: Yes, I am very conscious. Adv Mpofu?
Adv Mpofu: I'm very sorry Mr van Loggerenberg to waste your time.
Mr van Loggerenberg: You are not wasting my time. I just have something else I need to attend to.
Adv Mpofu: I'm talking about the last few minutes. I'm saying, on News24, that's just for your thought, it says: van Loggerenberg said Mkhwebane failed in her duty to conduct investigation into the so-called rogue unit without fear, favour, and prejudice, by not having affording him the opportunity to participate.’You don't have to comment. I just want to say that's why I was surprised for you.
The Chairperson thought that was where the Committee would pause for the day. Mr van Loggerenberg did not have to comment and respond to that, as he would have commented earlier on the issue. The Committee would resume the following day at 10h00.
Adv Bawa said that the Committee was going to excuse Mr van Loggerenberg and then play the four-minute video recording.
The Chairperson apologised; he had forgotten about that. Mr van Loggerenberg was excused.
Ms J Tshabalala (ANC) said it's unfortunate that the Chairperson recognised her when he had closed the meeting. She had raised her hand twice and thrice. The Chairperson perpetually said that he was going to come back to her but didn't do that, even closing the meeting. You said Members are going to interact with Mr van Loggerenberg for some clarity that one wanted and sought for this opportunity. She just wanted to register that when it came the following day. The Chairperson should please note it because she was really not comfortable.
The Chairperson said that he had indicated when he started that that was what would happen the following day.
Mr B Maneli (ANC) said that he did get that indication. The Chairperson had said it was a guidance that the following day they would come in. He just wanted to check for purposes of record so that he knew how to prepare for the questions he needed to ask. Firstly, from the evidence leader, there were two things to raise there. In fact, all of them relate to that which Members had listened to as a conversation that was taking place somewhere. There would have been mention of Adv Bawa there, just for purposes of dealing with what Members had been seized with as a Committee on bias and all that. That if the Committee can get that point clarified, that it’s not linked to the matter that they were dealing with, that for him was the first point.
The second point would be, because this was already out now, it'll be understood there had also been issues of legality thrown in how this Committee functioned, just to check whether that recording for purposes of the Committee, was obtained legally, such that they would not be questioned later on about the same. That was in relation to the evidence leader. As it related to Adv Mkhwebane, the Public Protector, when that recording was introduced, there was an issue raised firstly, that they had not received the recording, but later on, it was explained that it was probably how they needed to access it and could be helped in that regard. He wanted to ask a specific question, because he did not want to ask something and then be told later that that was not the case. Having listened to the recording, would there be confirmation that indeed, we are referring to Adv Mkhwebane as speaking in that recording? Meaning, did she meet those people? This was so that he did not ask that question later and find out that technology today is manipulative in its stature, and he is told its robotics. It was important to place it on record so when Members asked questions that related to that; they were talking to the person not the recording. So he was raising it because it was left hanging as though it's a matter to be clarified off record. He hoped he was assisting the meeting with the questions he was asking.
Adv Bawa apologised. She meant to go on record on that issue that morning, and she completely forgot. In January 2019, she was wearing the hat of the evidence leader for the Mokgoro inquiry into the allegations of Adv Jiba and Adv Mrwebi, In the course of that investigation, she had interactions with the Inspector General's Office for purposes of that investigation, which had absolutely nothing to do with SARS units or rogue units. She completely forgot and did in her opening address place that role on record. The reference in the recording was the Inspector-General's Office saying they have had even Adv Bawa from the Mokgoro inquiry asking for documents to be unclassified rather unsuccessfully she had to admit in that regard, That was the first question. The second question was, the recording was discovered as part of the Rule 53 record, which she said up front that was discovered in the case they were talking about. She had the notice under which it was discovered, and would make that available to the Committee. It was a CD ROM titled ‘Interview with InspectorGeneral’, which is part of the supplementary Rule 53 record provided 14 August 2019. It was signed under the hand of the Public Protector’s then instructing attorney. She had no doubt if there was a problem Adv Mpofu would have objected at the time the recording was being played. He would have also objected had it not been Adv Mkhwebane speaking. She was pretty sure about that.
Ms M Sukers (ACDP) thought she should have brought it up earlier but she wanted to bring up the matter of the dignity of the witnesses. It was extremely uncomfortable. She thought maybe for Mr van Loggerenberg as well, the issue with the whiskey and him then needing to explain his medical condition. She thought that the Committee needed to be cautious and sensitive that they do not violate people's dignity in the process. She thought the directives formed part of that. So if chair could just re-establish that boundary, please?
The Chairperson said that the next clarity sought is a specific one, in relation to the recording, about who Members were listening to, indeed, Adv Mkhwebane. For that, he was going to require a response from her, not today. For her to respond, he would want to make sure that she responds having taken the oath. He wouldn't want Adv Mpofu to respond on her behalf on that issue.
Adv Mpofu said he would leave that issue then if the Chairperson did not want it, but it would have assisted Members because it was quite a simple matter. Perhaps just on the remarks from the Member about the dignity of witnesses. The Committee would have noticed that he was actually at pains to move away but the witness was insisting on talking about it. Exactly for that reason – because he did not want to. It was just that when Mr van Loggerenberg said he was taking medication, he wanted to just check if he was fine for now. However, he was insisting on going into his explanation and he actually stopped him for that reason. He did not know anything about the whiskey story. That had nothing to do with him.
On the recording issue, there were three issues. One was the Public Protector’s legal advice team had raised about not having it in their possession, which was confirmed. Actually, that information they had opened it was inaccurate. They did not have it. But that problem was then resolved after the sitting. Some members of his team and evidence leaders went and sat in some room and it was resolved. That was why they did not go back there. However, just for the record, they did not have that information but did not want to quibble about that because it had already been played. The second issue, which was the voice, the Chairperson had ruled that it would be answered at a different stage. A third issue was raised about an objection that might be raised later. He thought that if it was to do with the playing, they did not want to take points like that. The fact that it was played before they could have access to it, as lawyers they just had to live with that because it was not something they wanted to quibble. He could put for the record that he did not want to sometime the following month say 'no'. He could definitely say that that was not what they were going to do.
The Chairperson asked if the video could be played.
Adv Mpofu said that having said what he had just said, he had to also place on record the video that was going to be played here, he had never seen it in his entire life. So, the Public Protector’s legal advice team would be seeing it for the first time. He understood that also went for his learned friend. He thought it was sourced as a result of the issue raised by Dr Gondwe. In other words, there was no plan. It was not like they were being ambushed. He was simply saying that, but he was placing it on record that he did not know what it said or what was contained in it.
The Chairperson asked Adv Bawa if she knew what was in the video.
Adv Bawa said no, she had also never seen it. However, she was told it was less than five minutes if that assisted.
The Chairperson said that that was good news.
Ms Dlakude asked if the evidence leaders and also the Public Protector’s legal advice team had not listened to the audio, and whether it was safe for the Committee to listen to it. She wanted to suggest that perhaps they should go and listen to it and play it for the Committee the following day.
Adv Bawa said that the video was in the public domain. It was referred to in correspondence. It was a press briefing that Public Protector did and this Committee was entitled to hear it.
Ms Dlakude withdrew her suggestion.
Ms Tshabalala thought that when she had spoken, and she might have been wrong, the Chairperson had declared the meeting closed. She just wanted to be sure, so that when the Committee listened to the recording, they were still in the meeting officially.
The Chairperson said that he had declared the meeting closed and he was reminded about the video so the meeting was still in session until the Committee completed the video.
Adv Mpofu had just forgotten something. He knew Ms Dlakude had withdrawn her proposal, but he wanted to raise it from a different point of view – not so much because the Public Protector’s legal advice team had not heard this recording. However, if it was only five minutes, it might also be safer that it is played when the witness is present. It had to be remembered that the witness was the one who had raised it and then Dr Gondwe raised it. It might well be that once it was played there are questions that arise, for example, was that sentence this or was that sentence that. Unless his learned friend could assure them that, before they started, she would play it for the witness. The whole point of doing it was that it might then form part of the cross-examination.
Adv Bawa said that if Adv Mpofu had no objection, she would get the message to the witness to just listen to it again overnight. It would save the Committee time the following day because it was Friday and they were way behind schedule.
The Chairperson asked that the video be played.
The Committee experienced problems playing the audio of the video.
The Chairperson said he was told IT had to manually come down here to sort it out and asked that the Committee have a little bit of patience.
Adv Mpofu said that, since the Committee was waiting, he might as well just also report that on the issue of the emails, there was also some progress there. They were told to go the previous day to the local Public Protector’s Office, which was done. The access had been restored, so the emails were sorted.
The Chairperson said that that was on record.
The Committee viewed the YouTube video titled: ‘Public Protector serves Minister Gordhan with a Section 7(9) notice’.
The Chairperson said that if Members had questions on the video they could do so.However; the Committee was not going to discuss the video now.
The meeting was adjourned.
Dyantyi, Mr QR
Denner, Ms H
Dlakude, Ms DE
Gondwe, Dr M
Hendricks, Mr MGE
Hermans, Ms J
Herron, Mr BN
Joemat-Pettersson, Ms TM
Lotriet, Prof A
Luzipo, Mr S
Mahlaule, Mr MG
Malema, Mr J
Mananiso, Ms JS
Maneli, Mr BM
Maotwe, Ms OMC
Mbhele, Mr ZN
Mgweba, Ms T
Mileham, Mr K
Mulder, Dr CP
Nqola, Mr X
Seabi, Mr M A
Siwela, Ms VS
Sukers, Ms ME
Tshabalala, Ms J
Van Minnen, Ms BM
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