Video (Part 1)
Video (Part 2)
In a hybrid meeting, the Section 194 Committee met for day 5 of the Public Protector Inquiry hearings. Cross-examination of the first witness, Mr Johann van Loggerenberg continued.
Adv Mpofu’s line of questioning was grouped into what he termed, the ‘Big Five’: (1) Mr van Loggerenberg's un-traceability and being ignored on the part of the Public Protector; (2) the existence of the ‘rogue unit’ and its continued existence until 2014; (3) the perception of the Public Protector’s views on the ‘rogue unit’ and other matters as “outrageous” being unjustified; (4) the view that the Public Protector’s report was compiled with a predetermined outcome; and (5) that the Public Protector’s conduct during the IGI Report was justified and commendable.
The Committee was then given the opportunity to ask Mr van Loggerenberg any further questions, focusing on his un-traceability and his real motives surrounding appearing in front of the Committee. Mr van Loggerenberg detailed a list of ways in which the Public Protector could have found him. He stated that his primary motivation for appearing before the Committee was to get justice for his colleagues who had suffered unbearable trauma throughout the ‘rogue unit’ allegations.
Other key points throughout the session were the fact that Adv Mkhwebane had indeed been in illegal possession of the classified IGI Report, as confirmed by Adv Mpofu; the mandate and functions of the so-called ‘rogue unit’; the targeted propaganda campaign against the unit; and the intention of Project Broken Arrow and Project Snowman to create chaos.
The Public Protector, Adv Busisiwe Mkhwebane, was sworn in under oath, for the duration of the hearings. The Committee was given an opportunity to question her. Adv Mkhwebane declined to answer any of the questions posed to her, opting to respond in writing, on advice from her legal team. She was given seven days to submit her responses in writing to the Committee.
The Chairperson apologised that there was no audio on the virtual platform for the first three minutes of the meeting and repeated his opening comments. He said they hoped to conclude with the first witness, Mr Johann van Loggerenberg, by lunchtime, so that the Committee could continue with the next witness, Mr Ivan Pillay, after lunch. Directives for today were sent out yesterday, so no one should be surprised when he started invoking the directives. Adv Mpofu and the Public Protector would be virtual on 18 and 19 July and would not be available for five days thereafter, so there would be a break until 27 July 2022. The Committee would utilise one of the days next week to discuss work on the hearing as a Committee.
He recognised Adv Mpofu to continue with his cross examination of Mr Johann van Loggerenberg.
Mr Johann van Loggerenberg said that he was uncertain of the Committee procedures. He had a number of questions put to him the previous day which had been “left up in the air”. He had reviewed the recordings from the previous two days’ hearings and had wanted to discuss these questions again if that was appropriate.
Adv Dali Mpofu said that some of these questions would possibly come up during his cross examination. If it did not, Mr van Loggerenberg could bring it up after the cross examination.
Witness: Mr Johann van Loggerenberg
Adv Mpofu: It is a pity that we do not have a lot of time because I wanted to shape the rest of this cross examination, in such a way that it is actually going to help us going forward. The structure that we are following, hopefully, will assist us with other witnesses. I know you are the guinea pig because you are the first witness. But we shall see how that goes. Can I start by saying the following for your benefit and for the benefit of the members, Chairperson? Mr van Loggerenberg, I have reduced the issues that I am going to be raising with you into five topics. Chairperson, I am hoping that it will also be for the benefit of the members. I call them the Big Five, being a South African [chuckles]. So the first issue, and I think we covered this sufficiently yesterday is about your being "ignored and not being traced" and so on. Do you remember that whole issue?
Mr van Loggerenberg: Yes.
Adv Mpofu: And I think you and I have agreed, subject to some qualifications, that if we are able to show, through evidence of the Public Protector or even other witnesses, that she (a) was told by investigators, on whom she had confidence, that they could not find you, even if those people can be criticised, but at least, she would have had reason to accept their evidence at face value. I know I say "subject to certain qualifications" just to save time. So I am not suggesting that you accept that and in an unqualified manner, do you understand?
Mr van Loggerenberg: Yes.
Adv Mpofu: Thank you. So that is the first issue. And as I say, we can take it because we dealt with it yesterday. The second issue: there is just one thing, one question, literally that I will ask you to bring that one ‘from the air’ hopefully. The second issue is about the so-called 'rogue unit'. And there are two issues. One is the existence of the unit, which I think is common cause, at least up to 2014. It is common cause whether it continued thereafter and so on, as the PP believed, or it stopped; that is another issue of dispute, but at least as far as its existence is concerned, we are we are one, me and you, correct?
Mr van Loggerenberg: I hear you.
Adv Mpofu: Thank you. So, that issue is also almost covered. And let me just pause and say this Chair. And again this is for the benefit of the members. It is true, that it is not the business of this Committee, to determine whether there is a rogue unit or no rogue unit, and so on. That is for [Adv Muzi] Sikhakhane and KPMG and all those people. Of course, if we go as far as to establish that, then it might be a shortcut. But that is not your main focus. Your main focus is whether the belief by the Public Protector that that is indeed so, was outrageous and impeachable. That is really the only issue for you. So the third issue, then, Mr van Loggerenberg, which really goes to the nub - and I know there is some debate about it, but I am sure it will be clear in due course, to those to whom it is not clear - is that the court findings to the effect that the Public Protector's views on all these matters were outrageous - or all sorts of adjectives that are used, mischievous, fallacious, what have you - that those conclusions on the facts that will be placed before this court, this tribunal, are unjustified. That is probably the biggest job for us. It is not for you. But we will lead some of that evidence via you, to the extent that it is relevant to you. Do you understand that?
Mr van Loggerenberg: I hear you.
Adv Mpofu: But do you understand? I know you are here.
Mr van Loggerenberg: Yes, you are explaining the Big Five and you are up to the Big Three.
Adv Mpofu: That is fine. Now, the fourth issue is that, and that is a broad issue related to the third one, is that the gist of the court findings is that, and I am avoiding using the term 'fait accompli', but what I mean is that there was really no investigation; she was just going through the motions with a predetermined outcome. And that is also the pin that comes from both your evidence and some of the judgments, understand that?
Mr van Loggerenberg: I hear you.
Adv Mpofu: All right, and then, out of those, I am going to pick out one so that I do not have to go through all of those Sikhakhane, KPMG, what have you. We have dealt with most of that. So I am going to demonstrate this fact, by you and I discussing the IGI (Inspector-General of Intelligence) report, in relation to your views on it, but also in relation to the comments made by the court. And, just to show again, that her conduct regarding the IGI Report was actually justified and commendable, firstly, but secondly, that she is not a sangoma. In other words, she would not have known, for example, that your review would be granted a year later. But I do not think you and I will quibble about that. Understand that one?
Mr van Loggerenberg: I hear you. Now you have all five of the Big Five.
Adv Mpofu: Thank you. Yes, that is the Big Five. So I am going to then go on. As I say, the first one is done. The only thing about the first one is I want to ask you to confirm that you, at some stage, deliberately used the wrong surname, a surname that is misspelt, not necessarily that you called yourself 'van der Merwe' or something, but you used the surname. And I am saying that in the context that it might have contributed to your un-traceability, not to cast aspersions on you. You used a surname that was the wrong one, misspelt. Correct?
Mr van Loggerenberg: On my email, my official email. I did not deliberately do it. In fact, if you look at the correspondence between Parliament and my attorneys, my surname is spelled incorrectly again, it is a difficult surname. It is actually 'van Log-ger-ren-berg'.
Adv Mpofu: [repeating] Log-ger-ren-berg.
Chairperson: [repeating] van Log-ger-ren-berg.
Mr van Loggerenberg: It has been used in multiple formats over my lifetime.
Adv Mpofu: Okay. And again, when I say 'deliberately', do not take me wrong.
Chairperson: Just pause.
Evidence leader Adv Nazreen Bawa: Mr Mpofu, can I just check? Are you putting to Mr van Loggerenberg that it is because his surname was wrongly spelled that he was not able to be found? Is that the version being put out?
Adv Mpofu: No, no. No.
Chairperson: Yes, thank you. Proceed.
Adv Mpofu: Thank you. Mr van Loggerenberg, again, I am not fighting with you. I am saying, when I say 'deliberately', I am saying that you were aware that this was happening and you, let us call it, condoned it. I am not saying you are the one who went there and doctored the...
Mr van Loggerenberg: No, I never had an issue with it, because I understood. Many people have difficulty with the surname, as do I. I did not select it. All the people who ever spoke with me knew it was me. So it was fine. It was not an issue.
Adv Mpofu: Yes, but I am just saying if someone who did not speak to you, if I, for example, wanted to find you, and if I Google the wrong surname, because I have the wrong surname, then obviously, I am not going to find you, obvious? Let us say in some database, correct?
Mr van Loggerenberg: Yes, no, sure, certainly.
Adv Mpofu: Thank you. So that is the end of number one, Chair. That is all I need from you, as far as one of the Big Five. Then on the second one, again, I do not want to get into a debate with you, as to whether the so-called 'rogue unit' still exists and so on, we will converse on that with other witnesses. In any event, even if it still existed, you left SARS 2015, that is common cause.
Mr van Loggerenberg: Yes.
Adv Mpofu: Thank you. So that then covers that, because as I said, on its existence and continuation. Existence is common cause, but, at least, again, I do not want to misrepresent the evidence. Existence is common cause up until 2014. Continued existence, we have just covered. Okay, good.
Mr van Loggerenberg: Sorry, Chairperson. If I may add to my answer, please?
Chairperson: Yes, go ahead.
Mr van Loggerenberg: It has always been part of the propaganda, that the existence of the investigative unit, that had the three names that I identified in my evidence-in-chief, was somehow denied or kept undercover, or whatever the case might be, throughout the years of its existence. I just want to emphatically say that that was never the case and the evidence put before the court in my full affidavit, quite clearly demonstrates that. Thank you, Chairperson.
Adv Mpofu: Thank you Chair, and for the avoidance of any doubt, I want to put it on the record that I agree with you on that proposition. The existence of the unit, people quibble, I call it the so-called rogue unit, you call it the high-risk unit or whatever, let us put that aside. But the fact that there was such a unit has not been denied, and actually is undeniable. There are two aspects which I want to converse with you. Well, which I would have wanted to converse with you, but I can only converse on one of them. The one is this issue of the continued existence, but it would be unfair, because let us assume somebody really started it in 2016 when you were gone. I cannot ask you about that. So, I think we have both accepted that. There is a second issue, which is really where the bone of contention, for lack of a better word, is on the 'rogue-ness', if you know what I mean, of the unit. That is obviously hotly contested, you would agree?
Mr van Loggerenberg: Yes, it is hotly contested between you and I, Mr Mpofu.
Adv Mpofu: Okay. No, I thought you were just talking in general. I am saying that it might be hotly contested between you and I, but I am saying generally, that is the issue that has been playing itself out, out there, outside of you and I. I agree, you and I have contested it, but I am just saying that is the issue. Whether it is 'rogue', meaning it is unlawful or in breach of the Constitution, and that kind of thing. You agree that that is the contested terrain?
Mr van Loggerenberg: Yes, Chairperson. The first time that that unit was referred to in that manner, was on 12 October 2014 in the Sunday Times, on a front-page article with the headline 'SARS bugged Zuma'. The article claimed that this unit, and members of the unit, had broken into the private home of former President Jacob Zuma, and planted listening devices in his home and secretly, unlawfully listened in on conversations that transpired in that premises. It also made claims of the unit having been involved in tarnishing the reputations of certain former South African Revenue Service (SARS) officials. Following that, there is a string of, I think, about 54 claims. Such as that the unit acquired new homes; it had slush funds in excess of R600 million, and in other cases, R800 million; it purchased new vehicles; it purchased all sorts of sophisticated spyware, in particular a grabber, and so forth; they have also infiltrated politicians as bodyguards; it conducted house penetrations; and so forth. There is a long list: 54 of them, in fact. And it is then in that context, that every time that article, those articles, appeared over two calendar years, that instead of referring to that unit as its convention within the Revenue Service (SARS), it was referred to in that manner.
Adv Mpofu: Thank you, again, I agree with you. All I wanted to establish for the purposes of this Committee again, because we have to focus it on the work that we are doing here, is that you would agree with me. I am putting a proposition to you so that you agree or disagree that apart from you and I, out there there are South Africans, I don't know how many, who will agree with you that the unit was above-board, nothing wrong with it, and so on and so on. There is another large number of South Africans, again I don't know how many, who believe that the unit was unlawful and rogue and all the things you have just enumerated. I am asking that question again to demonstrate that it is not the function of this Committee to resolve that public debate. The function of this Committee is simply to find out whether the findings of the Public Protector, in that regard, were wayward and outlandish and ridiculous, or whatever.
Mr van Loggerenberg: Right. So that is, unfortunately, how a successful propaganda campaign works. The name will remain for long beyond our lifetimes, I am sure.
Adv Mpofu: 100% and we just want to know that to the extent the propaganda must have worked on the Public Protector, whether that is outlandish or not. Okay? All right. Now, that is fine, you and I on that topic. Then I am just going to ask you a few questions. Do you accept that, among other things, the Public Protector, rightly or wrongly - and I will come back to the rightly or wrongly, I am just parking it - in coming to her conclusions about the 'rogue-ness', or let me use the more neutral term, the unlawfulness and unconstitutionality of the unit had, among other things, the following information at her disposal: the Sikhakhane Report, which found that the unit was unlawful? Okay? Sorry, do you agree with that? I am not saying you agree with the Sikhakhane Report, I am saying do you agree that that is one of the materials that she had at her disposal?
Mr van Loggerenberg: Indeed, the way I understand it, is that the Public Protector accepted the Sikhakhane Report as is.
Adv Mpofu: Yes. Good. And the second material on which she relied for that belief was the KPMG report. Correct?
Mr van Loggerenberg: Correct, Chairperson, but she did not take into account the withdrawal.
Adv Mpofu: Yes. Okay [resigned]. We will come to that. In fact, we will not. We will not come to that.
Mr van Loggerenberg: If you put it differently, she relied on the original KPMG report.
Adv Mpofu: Yes, in respect of which, and you will correct me because you are more familiar with this, you issued a media statement violently, well not violently, vigorously contesting the extent of that withdrawal. In other words, you were saying KPMG did not withdraw some of the evidence, the body of the evidence, but they only withdrew the conclusions, and you are aggrieved by that. Correct?
Mr van Loggerenberg: Yes, I was aggrieved that they only withdrew the conclusions, recommendations, and legal opinion.
Adv Mpofu: Thank you very much. So, even you understood that that withdrawal was not complete. Hence, you were aggrieved?
Mr van Loggerenberg: Correct.
Adv Mpofu: Thank you. Now, the only other thing that I want to say about KPMG, is that part of your qualms with the extent of their retraction was the fact that it left some parts of it untouched, and just accept that for now as a general statement, because that is not the nub of my question. The nub of my question is that in those parts that were not withdrawn, and I am using that term loosely, was, among other things, the list of what they regarded as 'interception equipment', 'intelligence type of equipment', which would be evidence of the rogue-ness. I am paraphrasing, but that is, among other things, part of your gripe. Correct?
Mr van Loggerenberg: No, because they did not ascribe the equipment to the unit in question.
Adv Mpofu: What did they ascribe it to?
Mr van Loggerenberg: They just used the term SARS.
Adv Mpofu: Yes, I hear you. Okay, fair enough. And again, so that was part of the gripe that they listed all this 'rogue equipment' and simply ascribed it to SARS, without allocating it to a particular unit. That was one of your gripes, correct?
Mr van Loggerenberg: Yes, it was certainly.
Adv Mpofu: Thank you. Okay. No, that is good enough for our purposes. So that was the second thing. So that is the Sikhakhane, KPMG, and then the third thing at the disposal of the Public Protector was the Groen Report, correct?
Mr van Loggerenberg: No, there was no Groen Report.
Adv Mpofu: Okay. Yes. Okay. Let us call it Groen Panel document.
Mr van Loggerenberg: Press release.
Adv Mpofu: Whatever. Yes. Press release.
Mr van Loggerenberg: That is the title at the top of the document.
Adv Mpofu: Absolutely. I am with you. Today we are agreeing on everything. I will take yours: Groen press release. Number three. Correct?
Mr van Loggerenberg: Thank you, Chair.
Adv Mpofu: Thank you. And then the fourth material that was relied on, was the Inspector General of Intelligence Report. Correct?
Mr van Loggerenberg: No, Chairperson. Incorrect.
Adv Mpofu: No, I do not understand.
Mr van Loggerenberg: Well, the report says that Ms Mkhwebane did not have the report.
Adv Mpofu: Which report?
Mr van Loggerenberg: The Inspector-General of Intelligence Report.
Adv Mpofu: No, no. No, sorry. That was a confusing question. So what you are saying is the PP Report says that the PP did not have the IGI Report?
Mr van Loggerenberg: Correct.
Adv Mpofu: Yes, that is what...
Mr van Loggerenberg: Correct.
Adv Mpofu: [sighs] but you accept that she must have relied on it because she, even in the PP Report refers to its recommendations that you must be criminally charged?
Mr van Loggerenberg: I do not accept that, because I don't want to place myself in the shoes of Ms Mkhwebane. I think Ms Mkhwebane can explain that herself.
Adv Mpofu: Fair enough.
Mr van Loggerenberg: All I know is that the report emphatically states she did not have the report. She had certain aspects thereof on good authority. How she verified whether those aspects on good authority were indeed what was contained in the report or not, I cannot say. I have my views, given the fact that we now know that she was in fact in possession of the report, but the [PP] report states otherwise.
Adv Mpofu: Okay. Look then if, Chair, again I am doing this to try and speed things up. So I am just going to sit on this just for a short while, Mr van Loggerenberg, because I want to kill two birds with one stone, so to speak [about 15 seconds of silence while he looks through his documents]. Okay. Whoever is operating the IT system, can you go to paragraph 113 of the judgement? The one I am talking about is [case number] 48521. The rogue unit judgement.
Chairperson: Okay, just a pause there, so that we get it flighted.
Adv Mpofu: While we are at it, while they are finding the thing, I just want to confirm. So you are saying you are basing this theory on the fact that in the report, Adv Mkhwebane, as you put it, emphatically stated that she did not have the report?
Mr van Loggerenberg: Yes, Chairperson.
Adv Mpofu: Thank you. All right. Okay. Well, again, to save time, Chair, I will just ask the next question, while they are looking for the thing.
Chairperson: Please go ahead.
Adv Mpofu: Yes. And the issue I am going to demonstrate when I say, 'kill two birds with one stone', is that you are so wrong with what you have just said. And so is the judgement. So that is what I mean by 'kill two birds with one stone'. So wrong. Like, so wrong. What you have just said is Adv Mkhwebane says in the report emphatically, as you say, that she did not have the IGI Report. Where in the report does she say that?
Mr van Loggerenberg: We'd have to find that for you, Chair, if you can allow me a few minutes.
Adv Mpofu: I will assist you.
Mr van Loggerenberg: All right.
Adv Mpofu: If you have the report in front of you, you will find the IGI... [looking for the section] Section... All right, I thought I had mapped it. All right, I will find it for you now, Mr van Loggerenberg.
Adv Bawa: Adv Mpofu, can I assist in what you are looking for?
Adv Mpofu: Yes. The part in the report on the IGI Report.
Adv Bawa: It could be around paragraphs 5.2.25?
Adv Mpofu: Yes, yes, you are quite right 5.2.25. Actually, it starts at five... Oh, yes, I know it is confusing, because it is under the heading 'Sikhakhane Report'. But I will also explain why that is so. Let us deal with that very quickly. Do you accept that in the report, it is clear that the IGI Report is a product of the Sikhakhane Report? In other words, one of the findings or recommendations of Adv Sikhakhane was that the matter must be referred to the Inspector-General.
Mr van Loggerenberg: [calmly] No, I don't accept that.
Adv Mpofu: You don't accept that? All right. I'll assist you, don't worry, relax. So, if you go to the report, it starts at 5.2.16, under the heading 'Sikhakhane Report'. And it answers also one of the questions that Hon Gondwe raised about who commissioned what. It says this Sikhakhane Report was commissioned by the former SARS Commissioner, Mr Ivan Pillay, to conduct an investigation into allegations of impropriety against Mr Johann van Loggerenberg, SARS Group Executive projects, evidence, punishment, and technical support. The report outlined, amongst other things, issues pertaining to the intelligence unit. So, you see how that starts? You confirm that part? You can't dispute that part, that it was commissioned by Mr Pillay to look into your conduct?
Mr van Loggerenberg: Yes, it was not the unit. My conduct in relation to allegations made by Ms Belinda Walter. It is very specific.
Adv Mpofu: Mr van Loggerenberg, do you confirm that paragraph?
Mr van Loggerenberg: I confirm it up to where my surname ends with closed brackets.
Adv Mpofu: [sigh] All right, that is fine. You can confirm it to wherever you want. All right. Now, here is the part that you seem to be contesting. Go to the paragraph that my learned friend was referring us to 5.2.25. And it says, "the report recommended", in other words, the Sikhakhane Report "recommended that the activities and functions of the Special Projects Unit (SPU) be investigated by the Inspector-General of intelligence. Are you contesting that plain fact?
Mr van Loggerenberg: No, it did recommend that.
Adv Mpofu: Good. Thank you. All right. And that is what I was trying to say. You seem to be contesting that I was saying the IGI Report is therefore the product of the Sikhakhane Report because it was recommended thereby.
Mr van Loggerenberg: I am contesting precisely that point. In order for you to understand the genesis of the Inspector-General of Intelligence Report, which is in terms of Section 7 of the Intelligence Oversight Act, it was commissioned by then Minister of State Security in August 2014, in terms of Section 7B of that Act, with a very specific mandate, scope, and purpose.
Adv Mpofu: Okay, okay, Mr van Loggerenberg. I will grant you that. I don't care whether it might have been a coincidence.
Mr van Loggerenberg: [calmly] It was a coincidence, Chair.
Adv Mpofu: [increasingly agitated] Oh, no, listen to me, please. Don't answer before I finish my question. I am saying the fact that Adv Sikhakhane recommended that this matter goes to the IGI, and the fact that they may also have been doing it. I don't care if it's a coincidence or not. All I was saying to you is to establish the facts. The fact which you and I have agreed on, is that Adv Sikhakhane recommended that the issue of the unit be referred to the IGI. Yes?
Mr van Loggerenberg: Yes.
Adv Mpofu: Thank you.
Mr van Loggerenberg: By the South African Revenue Service.
Adv Mpofu: Whatever. Yes.
Mr van Loggerenberg: No, not 'whatever', Chairperson, it is important.
Adv Mpofu: Okay.
Mr van Loggerenberg: The recommendation by Adv Sikhakhane was that the South African Revenue Service should refer the matter to the Inspector-General of Intelligence.
Adv Mpofu: [dismissive] Fine.
Chairperson: Thank you, thank you. Just a pause. Adv Bawa?
Adv Bawa: I am hoping to short-change this by reading out what the recommendation was from the Sikhakhane Commission, so that we don't go around in circles as to precisely what it was. If that would assist everybody.
Adv Mpofu: Sorry, I didn't hear that.
Adv Bawa: [louder] I am hoping to clear this up quickly, by just reading out what the recommendation was from the Sikhakhane Commission.
Adv Mpofu: Yes, no, I am talking about the PP Report.
Adv Bawa: No, but you are going around in circles, it seems.
Adv Mpofu: No, no, I don't appreciate that. I'm not going around in circles. I'm reading the report recommend that the activities and functions of the SPU be investigated by the Inspector-General of Intelligence. What circle is that? It's here!
Adv Bawa: Well, that is in the PP Report.
Adv Mpofu: [annoyed] Yes, but that's what I'm dealing with.
Adv Bawa: But the debate you are having with Mr van Loggerenberg is whether that recommendation was actually made by the Sikhakhane Commission.
Adv Mpofu: No! I just don't care about that. I don't know why you're telling me. I've just said I do not care whether it was a coincidence, or whether it was there or not. I'm reading words here. And you telling me that I'm going in circles? [speaking over Adv Bawa] The Report of the Public Protector says the report and when it says the report, it means the Sikhakhane Report. Do you understand that Mr van Loggerenberg?
Mr van Loggerenberg: Yes, Chairperson.
Adv Mpofu: Yes, so let's read it together, in straight lines, not in circles. "The Sikhakhane Report recommended that the activities and functions of the SPU be investigated by the Inspector-General of Intelligence. That is what is in the Public Protector's Report? Yes, or no?
Mr van Loggerenberg: It is correct, Chairperson.
Adv Mpofu: Thank you. It then says, 'in a meeting held between the Inspector-General of Intelligence, Dr Setlhomamaru Dintwe, on 31 January 2019. Let's pause there. That is the meeting, apparently, that was played here on Monday for a long time, chit-chatting with Ms Govender and this one and that one. We agree?
Mr van Loggerenberg: Chair, just to be sure, are we on 5.2.26?
Adv Mpofu: 25. Sorry, Mr van Loggerenberg.
Mr van Loggerenberg: Okay.
Adv Mpofu: We are still on 25.
Mr van Loggerenberg: Okay, thank you, Chair.
Adv Mpofu: Okay, good. Now it says this, Mr Dintwe - that's the Inspector-General of South Africa - confirmed that the Office of the IGI had indeed previously investigated allegations of an intelligence unit within SARS, and confirmed the existence thereof, do you see that? In other words, in the meeting that was played here, Dintwe, among other things, confirmed that there was an investigation, which confirmed the existence of the rogue unit…so-called. Okay?
Mr van Loggerenberg: If you simplify it to that? Yes, Chairperson.
Adv Mpofu: Thank you very much. Right. Now. Then, 26 is the one that then gives it a bit of context. It says apparently that the then-Inspector-General, that would be the late Adv Faith Radebe, conducted an investigation on the intelligence unit within SARS and issued a report on 31 October 2014. You have no quibble with that?
Mr van Loggerenberg: Chairperson, it is correct.
Adv Mpofu: Yes, it's in straight lines. Okay. I was reliably informed that it was in the custody of the former Minister of State Security, Ms Dipuo Letsatsi-Duba, from whom I tried to get a de-classified copy of the report, without success. You have no quibble with that as well?
Mr van Loggerenberg: Yes, that's what it says.
Adv Mpofu: Yes. Do you know, as a matter of fact, just to clean this up, Chair, that so much did the Public Protector make those attempts to get the declassified report that at some stage, she even laid criminal charges against the Minister?
Mr van Loggerenberg: Yes, I read about it in the newspapers. Yes, Chairperson.
Adv Mpofu: Yes. In fact, it was what one might call a skirmish. And then the Minister also laid criminal charges against the Public Protector in that process. Are you also aware of that?
Mr van Loggerenberg: Yes, Chairperson.
Adv Mpofu: Thank you.
Mr van Loggerenberg: Chairperson, if I may ask to go back to 5.2.24?
Adv Mpofu: Yes, let's do that.
Mr van Loggerenberg: Sorry, no. It's the one with reference to Adv Sikhakhane. That paragraph that you just read out first, before you took me…
Adv Mpofu: I didn't go to 24, that was 25. But we can go wherever you want.
Mr van Loggerenberg: The one where there's reference to Mr Sikhakhane recommending that the matter be referred.
Adv Mpofu: Sorry Mr van Loggerenberg. It's 5.2.25. I'm just saying it loud for the person who is operating [IT/screen sharing]. Right, yes, we are back there, Mr van Loggerenberg.
Mr van Loggerenberg: No, sorry, Chairperson. There's a paragraph that was read out before 5.2.25 on the Sikhakhane recommendation.
Adv Mpofu: That's 16, probably. The only other one that I read was 5.2.16, the one that said the report was commissioned by former SARS Commissioner, Mr Ivan Pillay, and so on.
Mr van Loggerenberg: Yes, Chairperson, I did not agree with the contention that brought us to what is being laid out before the Committee now, that the Inspector-General Report was an outflow of the Sikhakhane Report, for the simple reason that the Sikhakhane Report is dated 5 November 2014 which is not evident in this paragraph. Whereas, if you go to paragraph 5.2.25, you will see that, in fact, by that time, the Inspector-General of Intelligence Report had already been concluded.
Adv Mpofu: Good. That is exactly – I don't know which part of this is not clear. I do not care whether it was a coincidence or whatever.
Mr van Loggerenberg: Okay, then it is fine, Chairperson, because that is what I was asked.
Adv Mpofu: Thank you. I've said it to you. I've said it.
Chairperson: Proceed Adv Mpofu.
Adv Mpofu: Anyway, all right, let's move on. Okay, the…
Mr van Loggerenberg: Just sorry, Chairperson, I don't want to interrupt there, but I think this bullet point is rather important. I hear what Adv Mpofu is saying, that he's reading from the Public Protector's Report, but then the Public Protector is wrong as well, for the simple fact that the dates indicated that the other report was completed before the other ones. The deduction that the one was built on the other is factually wrong. The Committee needs to understand that and take that into consideration.
Adv Mpofu: Yes, but the Public Protector is wrong with what? When did the Public Protector say what you're saying?
Chairperson: Go ahead, Hon Mulder.
Dr C Mulder (FF+): You are reading from the Public Protector's Report. In that report, the claim is made that the report from the Intelligence General was based on the other report. It seems that the facts indicate differently, and I think that's important for the Committee to take cognisance. So if you say you're not interested in that, I understand that, but I'm interested and I think the Committee is as well.
Adv Mpofu: Okay. Well, I hope this Committee is only interested in the facts, not some fiction. Because all I have said…
Chairperson: [intervening] No. Adv Mpofu? I would want you to tone down, please.
Adv Mpofu: All right. Okay. Actually, I don't appreciate being interrupted in my cross examination. But let me take your advice, Chair. Dr Hon Mulder, I have never, and will never, say that the Public Protector said that the one report was an outcome of the other one, because she simply has never said that. That's what I'm saying. All she says is, and I'm reading this for the umpteenth time, "the Sikhakhane Report recommended that activities and functions of the SPU be investigated by the Inspector-General of Intelligence full stop. That's all she said. I've never said what you're attributing to the Public Protector. Okay. Thanks. Thank you. Let's go. All right.
Chairperson: Hon Gondwe. Just pause, Adv Mpofu.
Dr M Gondwe (DA): Yes, Honourable Chairperson and good morning to everybody. I'm also a bit concerned with paragraph 5.2.25, I think.
Dr Gondwe: Adv Bawa was about to point out what the actual recommendation in this Sikhakhane Report actually was. And I think it's important. We just want to hear her, if possible, because she didn't quite get a chance to indicate, because what we had on the screen was the interpretation of the Public Protector around what the report recommended. And Adv Bawa was trying to put it on record what actually the recommendation was in the report. So, I would really appreciate it. I beg your indulgence on this chair.
Chairperson: So are you requesting that we have that read to us?
Dr Gondwe: Yes, the recommendation. The point that Adv Bawa wanted to make, for her to make that point, because I think it's very important that we get that also on record.
Chairperson: Just pause, Adv Mpofu.
Adv Mpofu: I was going to say, "no problem".
Chairperson: I don't think that that is a train smash. Can we do that?
Adv Bawa: I don't have it on the screen, because our operator doesn't have it, but we'll make it available. There's a series of recommendations in the report, but I think the one that relates to this is 190.4, which is on 217 of the record. It says: "In respect of the unlawful establishment of the Special Projects Unit/NRG/HRIU, the following is recommended: sub-1: as we understand it, the Inspector-General of Intelligence is already investigating Ms Walters complaint, the activities and functions of this unit must be specifically investigated by the Inspector-General. Alternatively, we are of the view that the commissioner should recommend to the President, that judicial commission of inquiry with powers of compulsion in terms of Section 3 of the Commissions Act 8 of 1947, should be appointed. Such commission, if considered", and then it goes on to state what that commission should do, which is not relevant to the debate. Then it goes on in sub-3: "SARS should ensure that proper structures of cooperation between SARS and government agencies statutorily tasked with intelligence gathering and crime investigation by establishing audit to a society with capacity". I was trying to point out earlier that I think Mr van Loggerenberg and Adv Mpofu were talking across each other on different sections of the Sikhakhane Report.
Adv Mpofu: Thank you, can I carry on now with my cross examination?
Chairperson: Continue, yes.
Adv Mpofu: Thank you. So from what has been read, it looks like the situation is even better than what he was describing. What Ms Bawa has now read to the Committee, is that Adv Sikhakhane was even aware that the IGI was conducting a report and made recommendations that whatever was read, would you agree with that?
Mr van Loggerenberg: It appears to be the case, Chairperson.
Adv Mpofu: Thank you very much. Thank you. So it's even better. All right, thank you Hon Gondwe. So, let's go back to where we were, the…
Mr van Loggerenberg: I should just add that, Chairperson, that it appears that Mr Sikhakhane was unaware, at the time when he published his recommendation, that the Inspector-General of Intelligence had already concluded the investigation.
Adv Mpofu: Correct. Correct, because of what you pointed out: the November / October thing. That's correct. Yes. I agree with you. The point, though, which is the business of this Committee, is that the…Okay, we've already said we agree that he was reliably informed, rather she, being the Public Protector, was reliably informed that it was in the custody of the former Minister, and then they were fighting it out. Now, 5.2.27, the next one. He says, "in an attempt to determine the veracity of allegations of the existence and activities of the intelligence unit, I sought more information from the Inspector-General of Intelligence", that's Dr Dintwe. "This information was attributed to a report by the former IGI Adv Radebe, dated 2014. The IGI Report. You and I, we've gone through this now, you confirm that?
Mr van Loggerenberg: Yes, Chairperson.
Adv Mpofu: Thank you. Then, he's stated that the report can be requested from the Minister of State Security as the lawful custodian thereof, right?
Mr van Loggerenberg: Yes, Chairperson.
Adv Mpofu: Okay, then the rest, I'm just going to paraphrase. It's the thing about the fight, the criminal charges, and so on. We've already covered that. Now, if you go to…Okay, no, let's pause here. This, what we have now discussed, including the discussions between Dr Dintwe, and what is in the report, and whose custodianship it is, and so on. All those things we now know, sitting here, discussed in the recording that was played here, correct?
Mr van Loggerenberg: That's all that's contained in the Rule 53 record, Chair.
Adv Mpofu: Exactly. That's my next issue. And that recording that was played here, comes from the Rule 53 record, as you correctly say, which was supplied by the Public Protector, correct?
Mr van Loggerenberg: Yes, Chairperson and it related to a date: 31 January 2019.
Adv Mpofu: Yes, whatever. The gist of my question is that the Rule 53 record was supplied by the Public Protector. The thing that was played here, we wouldn't know about it if the Public Protector had not discovered it.
Mr van Loggerenberg: Well, that and the fact that on 31 January 2019, the Public Protector was in fact in possession of the report.
Adv Mpofu: Yes, fine. I don't even know what was…
Mr van Loggerenberg: It was not in the Rule 53 record.
Adv Mpofu: It was in her Rule 53 record with whatever you're saying. Okay, good.
Mr van Loggerenberg: It was not, Chair.
Adv Mpofu: Pardon?
Mr van Loggerenberg: The Inspector-General of Intelligence Report was not produced in the Rule 53 record.
Adv Mpofu: I'm not talking about the report, Mr van Loggerenberg. I'm saying the recording that was played here on Wednesday-
Mr van Loggerenberg: Yes, I've agreed, Chairperson.
Adv Mpofu: …came from the Rule 53 record that was discovered or supplied by the Public Protector.
Chairperson: Thank you, let's proceed.
Adv Mpofu: Thank you. All right. So, she has a discussion about all of these things. And then she, of her own volition, discovers it in the Rule 53 report. But let me just close up the following point, which might be important for another reason. If you go to 5.2.32, just to show the extent and lengths to which she went to try and get this report, legalised, so to speak. She says at 5.2.32, and hopefully we'll get evidence on this when these witnesses are called, "I have since requested President Ramaphosa's assistance in facilitating the unveiling of the declassified report by the Minister of State Security, to no avail". You have no reason to dispute that she's lying about that?
Mr van Loggerenberg: No, in fact, it's reflected in the Rule 53 record.
Adv Mpofu: Yes. And then she says, this is the punch line, which seems to confuse everyone, and which I will show you just now that the court was completely wrong and you, but then she says, "in light of the abovementioned", in other words, of all of these things that you and I have now conversed, "and in terms of the powers vested in me by Section 181(2) and (3) of the Constitution, I have it on good authority that the findings of the IGI Report, inter alia, were that", okay? And then "(a) SARS created a covert unit, utilising covert and intrusive methods, which was not in line with the SARS mandate, and in violation of Section 209(1) of the Constitution, which only empowers the President to establish any intelligence service". In other words, it established, what I've called for shorthand, the rogue-ness of the unit. Do you agree with that? Not that you agree with the conclusion, but you agree that that's what she says is contained in the IGI Report? Correct?
Mr van Loggerenberg: Correct. It's actually a direct quote from the report.
Adv Mpofu: Absolutely. Then she says the establishment of an intelligence capacity within SARS a capability, exclusive only to legislated intelligence services, was illegal. Again, same point on rogue-ness, correct?
Mr van Loggerenberg: No, I only accept that what you reading to me, Chairperson, is that it's a direct quote from that reviewed and set aside Inspector-General of Intelligence Report.
Adv Mpofu: Yes, Mr van Loggerenberg, please, let's try not to waste time. I've said what you're saying. I'm not saying you're accepting the content. I'm saying you accept…okay, let me put it this way. Do you accept that if these two things are true, that would be a demonstration of rogue-ness? In other words, if SARS, in violation of Section 209(1) of the Constitution, which only empowers the President to establish intelligence services, and test the establishment of intelligence capacity, a capability exclusive only to legislated intelligence services, which is illegal. If that is the case, that's an indication of rogue-ness.
Mr van Loggerenberg: Yes, Chairperson. If SARS did that, hypothetically speaking, one way of describing it, I imagine, could be using the term rogue.
Adv Mpofu: Yes. I'm not doing it to be facetious. I'm using it as shorthand, simply, as I said, maybe I'll use lawfulness, rather, unlawfulness. But you know what I mean, you agree with what I'm saying?
Mr van Loggerenberg: Yes, if it's your preference to then use another term, so be it.
Adv Mpofu: Yes. I just want to move on, Mr van Loggerenberg. I don't want to quibble about stuff that is not going to assist us.
Chairperson: Pause, Adv Mpofu.
Adv Mpofu: Sorry Chair.
Mr B Maneli (ANC): No, I just want for purposes of clarity on my side, so that I know which report we are dealing with. The first point raised about this Sikhakhane Report was more of a reference to the Inspector-General of Intelligence. On this point, 5.2.34, is this a direct reference to the actual Intelligence Inspector-General's report, or is it still referred to as in the Sikhakhane Report? I think, for me, the important part is whether this then becomes an admission that you are using a report whether acquired in one way or the other, or it's still reference to Sikhakhane. Just to be to be sure that we're talking to the same point when we want to come back and ask questions. Thank you.
Chairperson: Thank you, Hon Maneli. Adv Mpofu.
Adv Mpofu: Thank you, Chair. I get the point. Honourable Member, let me just go back to 5.2.33. She says "I have it on good authority that the findings of the actual report inter alia were that. After that colon, up to the word 'activities' at the end of 5.2.34, that's from the IGI Report. Thank you.
Chairperson: Understood. Thank you, just hold, Adv Mpofu. Hon Mulder.
Adv Mpofu: Thank you very much.
Chairperson: Which one? 5.2-?
Dr C Mulder (FF+): My apologies. On 5.2.32 and 5.2.33, the point I'm trying to have clarity on, is that Adv Mpofu started off by asking Mr van Loggerenberg this morning, where in the report does the Public Protector deny that she had a copy or had a hold of the report of the Inspector-General of Intelligence? That's what I heard, if I'm not mistaken.
Adv Mpofu: Chair, if I may intervene, can I deal with the witness? Please, I'm begging you. Otherwise, this is really going to derail my cross examination. I can't be asking the same questions, and then attempts to answer for the witness…
Chairperson: Let's allow him to complete. Hon Mulder.
Dr C Mulder (FF+): Thank you, Chairperson. I just want to make the point. This is not a jury. This is a Committee that wants to understand the process. And if I want to ask and understand, then I would really want to be answered. But Mr Mpofu doesn't want to be disturbed, so complete your… From my perspective, I'll ask you the question afterwards. Thank you.
Adv Mpofu: Yes, thank you Chairperson. The directives were adopted yesterday. And the directives say that the evidence leaders must lead the evidence. We must cross examine, thereafter the members must raise their questions. There's a reason why the directives are there, it's exactly to avoid this kind of thing, where my cross examination is being interrupted. I don't mind, I must say it openly, clarity-seeking questions. For example, the one from Hon Maneli. I know this is not a court of law. But what I don't want is to go into the merits of answers that I'm extracting from a witness, because that's a completely different business, which is wrong. Thank you. Now, Mr van Loggerenberg?
Mr van Loggerenberg: Yes, Chairperson.
Adv Mpofu: Thanks. So, anyway, when I was clarifying to Hon Maneli, I think that covered my next question, so I'm not going to ask you. Now, I'm saying okay, after the word 'activities' at 5.2.34], then it says the KPMG Report, right?
Mr van Loggerenberg: I'm not seeing it on the screen, Chairperson.
Adv Mpofu: Okay, take it from me.
Mr van Loggerenberg: Yes, okay.
Adv Mpofu: Okay, then, in other words, they're now dealing with something else completely. Now, it comes to the question which, as I said, has now been pre-empted which I really don't appreciate. The question is, in the section that you and I have dealt with, we've now agreed that the discussion of the IGI Report is for the reasons that we have explained covered under the heading 'The Sikhakhane Report'. And this is now the end of that discussion. Now I'm saying, where in this, what you and I have gone through, is this part where you say the Public Protector emphatically states that she did not have the IGI Report? Where is that?
Mr van Loggerenberg: If the person controlling the screen, can just scroll up slightly, please?
Adv Mpofu: Got it? 133 please. Okay, can I just carry on? It's a small thing. I'm sure when it comes up, it will come up. I'm sorry, I'm very sorry to do this Mr van Loggerenberg. Let me put the question even in broader terms and it will be clear just now why I'm…No, in fact let me do this, with your permission, Chair, in that spirit of killing two birds with one stone. Go to paragraph 113 of the rogue unit judgement, so-called rogue unit judgement. [pause] Oh, it's Bundle A, page 4016.
Adv Mpofu: If I'm misreading, I'll be found out. Okay. 113 says, this is what the judgement says. It says what you are saying wrongly, Mr van Loggerenberg. "The Public Protector relies on this report, despite explicitly stating that she has not seen the report". Do you see that part? Yes, Chairperson. And it says she relies on it because she has it on good authority that it was found in the report, but that part, the second sentence is correct. We've just established that. Okay. We can move on to 115. Can you see it Mr van Loggerenberg?
Mr van Loggerenberg: Yes, Chairperson.
Adv Mpofu: And then, again, the judgement makes the same point at 115, it says, "despite the fact that", and I'm saying this, at the back of your mind, you must understand this is all leading to a devastating finding that the Public Protector is dishonest. But park that thought. It says "despite the fact that the Public Protector, according to the report, has never seen nor verified the contents on findings of the OIGI Report. She ordered the Minister to implement it within 90 days". The emphasis is on the first part, "despite the fact that the Public Protector, according to the report", not according to anything else, "has never seen". In other words, they agree with you that she emphatically said that she has not seen it. Then 116, Chairperson. They say, "it is difficult to understand on what basis, these sections of the Constitution can notionally grant the Public Protector the power to rely on a report that she herself has not seen", because this is what she says in the report. So again, they agree with you. Right, the report, assuming it is the report of the Public Protector.
Mr van Loggerenberg: Yes, Chairperson.
Adv Mpofu: Yes, and then it goes on and on. The thing about counsel we don't have to deal with it now. Maybe I'll deal with it with Mr Pillay because he was a litigant. But go to 120, sorry, 119 first. "The Public Protector now considered that despite explicit statement in the report, that she has not had sight of the OIGI Report, in preparing. She has in fact had the OIGI Report in her possession when she drafted the report. The Public Protector now claims she's subsequently received the report from an anonymous source who left it at her office. Firstly, she had said – we had in the conversation – that that had happened even before she went to see Dr Dintwe. But that's not an important point I want to make now, it's just factually wrong. But at 120, that's the punch line, which is before this Committee. "This turn of events is disturbing to say the least and it is difficult to label the Public Protector's conduct in that regard as anything less than dishonest". In other words, the issue that is brought here before this Committee, to impeach the Public Protector, is not the build-up, so to speak. It's the fact that she's dishonest. And that dishonesty owes to the fact that, according to you, Mr van Loggerenberg and this judgement, she explicitly, emphatically, whatever words you want to use, stated that she had not seen the OIGI Report. Now, here's the question, where can you assist this Committee to tell us where in the report she has explicitly, emphatically, whatever you want to call it, stated that she had not seen the report?
Mr van Loggerenberg: If you can go back to the report, please, Chairperson?
Adv Mpofu: Which one? The Public Protector's Report?
Mr van Loggerenberg: Yes, Chairperson
Adv Mpofu: Yes. Which paragraph?
Mr van Loggerenberg: If my memory serves correct, somewhere around 15.2.23. Somewhere around there if I can just see that page.
Chairperson: Okay. We'll get there.
Adv Mpofu: It’s on Bundle A, page 4217. Are you finding it? Mr van Loggerenberg, can you just repeat the paragraph you're referring to?
Mr van Loggerenberg: It's around there where she indicated she turned to the President for assistance.
Adv Mpofu: So, the reference to the President you'll find at 5.2.32.
Mr van Loggerenberg: Yes, Chairperson. Can the person please just scroll up a little bit?
Adv Mpofu: Please scroll up for Mr van Loggerenberg.
Mr van Loggerenberg: The sentence starts with "in an attempt to verify the veracity", or something similar to that. There we go, 5.2.27.
Adv Mpofu: Just a minute. Okay, no, you can carry on, sorry. I've just lost my...
Chairperson: Go ahead, Mr van Loggerenberg.
Mr van Loggerenberg: Okay, so in July 2019, Ms Mkhwebane states, in an official report, under her office in her position as the Public Protector. She states at 5.2.27, "in an attempt to determine the veracity of the allegations of the existence and activities of the intelligence unit, I sought more information from the Inspector-General of Intelligence, Dr Setlhomamaru Dintwe. This information was attributed to a report by the former Inspector-General of Intelligence, Adv Faith Radebe". That then means, emphatically, that at that point in time, Ms Mkhwebane doubted the veracity of the allegations, and she sought out to determine the veracity of that.
Adv Mpofu: Just go ahead. Can you just repeat that? I don't know what you're talking about.
Mr van Loggerenberg: "In an attempt to determine the veracity", you don't need to determine veracity of something which you believe. You know, veracity is when there's doubt.
Adv Mpofu: Ah, I see. So, you are reading it to say she wanted to determine the veracity of the IGI Report?
Mr van Loggerenberg: No, you're not you're not allowing me to conclude, Chairperson.
Adv Mpofu: No, take your time, Mr van Loggerenberg.
Chairperson: Okay, just hold there, Adv Mpofu. Please go ahead, Mr van Loggerenberg.
Mr van Loggerenberg: Alright, in July 2019, this process is described by Ms Mkhwebane that there was an attempt to determine the veracity of the allegations of the existence and activities of the intelligence unit. That attempt was then to seek more information from the Inspector-General of Intelligence. This information which she sought to determine the veracity, was attributed to a report by the former Inspector-General of Intelligence, Adv Faith Radebe. She stated that the report can be requested from the Minister of State Security. Now, if Ms Mkhwebane had the report, everything that follows - subpoenaing the Minister of State Security, laying the criminal charges, writing a letter to the new Minister of State Security, opening a criminal case against the Minister of State Security, writing to the President and everybody else - is an emphatic denial that she was not in possession of that report. If she was, it would simply have said: 'I have the report, here's the report, this is what it says'.
Adv Mpofu: [testily] Are you done now?
Mr van Loggerenberg: Yes, Chairperson.
Adv Mpofu: Thank you. What you've just said now is all that you rely on for your statement, and the statements contained in the judgement, that she explicitly and emphatically stated that she had not seen the report, am I right?
Mr van Loggerenberg: It continues. She then ascribes her knowledge and insight of the report to some kind of good authority.
Adv Mpofu: Yes. Okay. Now, everything…
Mr van Loggerenberg: And having said that, then, my answer is yes, Chairperson.
Adv Mpofu: Thank you. Thank you very much. So we know now it's those two issues that justify you and the judgement saying that she explicitly and emphatically stated that she had not seen the report. Thank you very much. That's…
Mr van Loggerenberg: Unless Ms Mkhwebane is prepared to state that she did have the report all along. And then that begs the question, why it wasn't produced to the affected parties, and why it wasn't produced in the Rule 53 record, and why the matter was opposed in interlocutory. And whatever was stated on oath before court there.
Adv Mpofu: Right, we're going to get right into that, Mr van Loggerenberg. But I just want…
Mr van Loggerenberg: It's not for me to speak for Ms Mkhwebane or for the Committee.
Adv Mpofu: No, no, no, no, no.
Chairperson: We do have a spokesperson and Ms Mkhwebane has. Yes, you're correct there. Thank you. Continue Adv Mpofu.
Adv Mpofu: Thank you, Chairperson. And for now, I'm her spokesperson. No, no, no, Mr van Loggerenberg if we gave you that impression, we apologise. We just want you to speak for yourself. You are the one that says she emphatically said she had not seen the report. So you are your own spokesperson.
Mr van Loggerenberg: I've answered that question.
Adv Mpofu: Yes, yes, yes. But that other stuff was unnecessary, just stick to answering the questions. We've now established that the statement, which is attributed to Ms Mkhwebane, which has led for us to be sitting here, because she is now dishonest, as far as you are concerned, is based on these two things: Paragraph 5.2.27 and 26.
Mr van Loggerenberg: I don't think it's necessary to repeat, Chair, I've answered the question and it will reflect in the record. I've said a few things.
Adv Mpofu: Okay, I'm doing it for the record, Mr van Loggerenberg. You don't have to be rude. Just work with me here.
Mr van Loggerenberg: I apologise. I want to save time.
Adv Mpofu: I repeat it for a particular reason if you don't mind.
Mr van Loggerenberg: Fine.
Adv Mpofu: Thank you. But now I'm saying to you…let's go to 5.2.27, the one that you say justifies your conclusion. Can you see there that it says, "in an attempt to determine the veracity of the allegations of the existence and activities of the intelligence unit"? It doesn't say "to the veracity of the report". Can you agree on that? I see that Chairperson, correct. Yes, yeah. So, where in the world are you then finding that when she wants to determine the veracity of the existence of the unit, that has anything to do with whether or not she has seen the report, emphatically?
Mr van Loggerenberg: Because the next sentence reads "this information was attributed to a report by the former Inspector-General of Intelligence Report in conversation". The next question, then, is a response, "Dr Dintwe stated that that report can be requested from the Minister of State Security". We've listened to that conversation, we've listened to how there were debates between the Inspector-General of Intelligence and Ms Mkhwebane on how exactly she could access it on 31 January 2019.
Adv Mpofu: Thank you, Mr van Loggerenberg. Yes, that is so. If it has to be played again, it will be played again. When we listened to that conversation, it was clear there. And I'm paraphrasing, please don't quote me verbatim. Do you agree or you don't agree? It was clear. I'm just putting to you as a proposition. I'm just saying you can agree or disagree or say, I don't know. The proposition I'm putting to you is that it was clear from that conversation that the participants in that conversation were aware that one, the report, the Public Protector, I think, said somebody had dropped it at the door, or at the gate. I'm not sure which one.
Mr van Loggerenberg: Ms Mkhwebane said so.
Adv Mpofu: Ms Mkhwebane is the Public Protector. Then, Dr Dintwe, I stand corrected, or Ms Govender said that. In any event, it's in the public domain. Some words to that effect, and I think Adv Govender made some other comments. And I don't know if this was... [pauses to consult team] Yes, I was just verifying, there was even mention, but don't worry about this, because we'll have to play the thing if we have to, even when you are not here. There was also mention by the PP, I think it was the PP, that the report was actually in Newsweek, in a publication called Newsweek, as well. Do you agree with that? Or don't you know, yes or no?
Mr van Loggerenberg: I don't know, Chairperson.
Adv Mpofu: Good.
Chairperson: Adv Mpofu, we'll pause there and take a tea break. We will be back at 11:50am.
Mr van Loggerenberg: Thank you, Chairperson.
Chairperson: We're back to resume. Can you hear us Mr van Loggerenberg?
Mr van Loggerenberg: Yes Chairperson.
Chairperson: Welcome back. We will proceed. Adv Mpofu.
Adv Mpofu: Thank you, Chairperson. Hon Chair, I'm mindful, I really am mindful of your time. But I have to do what I have to do. So, I'm doing my best to curtail. So, I was saying we could do this, to-ing-and-fro-ing for some time, I don't want us to do that. I'm going to put a proposition to you, which might cut the to-ing-and-fro-ing. If it doesn't, then we'll come back to it. I'm putting it to you that there is nowhere in the Public Protector's Report where she, according to you, emphatically, and according to the court, explicitly, states that she had not seen the report. And that is also not borne out by the context of the recording and what is in the report. Do you agree? No, we are going to disagree on that, Chairperson. Okay. Thank you. Sorry, I thought I was taking a chance that we will have a shortcut. Okay. No, let's go back to the question. Where, in the report, Mr van Loggerenberg, does it say that the Public Protector emphatically and explicitly says that she had not seen the report?
Mr van Loggerenberg: I've answered the question already, Chairperson.
Adv Mpofu: Okay, well, that answer you gave, it means nowhere, because you went to the theme of veracity. I've explained to you that the veracity was about the intelligence unit, not about the report. Do you accept that?
Mr van Loggerenberg: Chairperson, I answered the question. It wasn't just about the veracity, it started with the sentence 'veracity’, and it ends later on in the report. Where the Public Protector seeks assistance from the President. It's that entire section.
Adv Mpofu: Okay, in other words, what you're saying is that, okay, no, let me start it like this. You accept that what the Public Protector was saying ad nauseam in that meeting, was that she wanted a declassified report?
Mr van Loggerenberg: Yes, I accept that. I also accept that she said that possession of the report in any other fashion would be a criminal offence, and she considered it a serious matter.
Adv Mpofu: Yes, yes. In other words, the possession of the declassified report, or rather, I'm sorry, of the classified report?
Mr van Loggerenberg: There was only one report at that point and that was the classified report.
Adv Mpofu: Yes. Mr van Loggerenberg, yes, Mr van Loggerenberg. I'm saying that there was only one report: the classified report. That's why I'm confirming with you.
Mr van Loggerenberg: I confirm, Chair.
Adv Mpofu: Yeah, what is not in existence is the declassified report, which is what we are seeking from you, I'm sorry, from Dr Dintwe, from the Minister, and from the President. The declassified report.
Mr van Loggerenberg: Correct, Chair.
Adv Mpofu: Thank you. Yes.
Mr van Loggerenberg: If I can draw your attention to paragraph 252 of the judgement?
Adv Mpofu: 252? Okay. Let's go there. Right, I'm there Mr van Loggerenberg.
Mr van Loggerenberg: It reads, "but the demand made on the Minister of State Security to implement, in totality, the OIGI Report, dated 31 October 2014". And this is in the July 2019 Public Protector Report. That's one of the remedial actions.
Adv Mpofu: Yes.
Mr van Loggerenberg: Firstly, the possession or use of a classified report would clearly constitute criminal conduct on the part of Adv Mkhwebane, who as a former State Security Agency operative remains bound by national security and intelligence legislation. As stated, a redacted version of the OIGI Report was declassified, but has subsequently been reviewed by the court and set aside. That declassification occurred post-July 2019.
Adv Mpofu: Thank you very much. Yes. And that's exactly the point. So, I'm saying to you, it is exactly for that reason that a Public Protector, a reasonable Public Protector, a conscientious Public Protector, who has been placed in possession of this document by a whistleblower, a real whistleblower, is at pains and taking all the steps to regularise and legalise the possession. The meeting we listen to here, the…sorry, sorry Chairperson [looking through documents]. Mr van Loggerenberg, I just want…Chairperson, I can feel that we…Sure, have a look…[laughs] so now I even want to kill three birds with one stone. Sorry, Chairperson. Okay, I'm looking for…I was going to…I'll refer the Chair later to, when I say these efforts, you will see in the section that I'm looking for, where there's list of this letter to this one, a letter to this one, a letter to the Minister, a letter to the DG, a letter to... and so on. I'm saying all those efforts and the meetings you've listened to here, were an attempt by the Public Protector, who's conscious of her responsibilities, to regularise the position? I'm sure you have no quibble with that. Otherwise, she was just having these meetings for fun.
Mr van Loggerenberg: I don't know, Chairperson. Is the proposition that the Public Protector was indeed in unlawful and illegal possession of that report? Is that the submission? Must I respond to that?
Adv Mpofu: No, it's not your place to ask me questions. Are you wanting clarity?
Chairperson: He wants clarity. Please.
Adv Mpofu: Okay. Fine. I'm sorry, Mr van Loggerenberg. Let me simplify the proposition. The proposition is simply this: that all these efforts, and I've included the meetings. The Public Protector went to have a meeting with the Inspector-General, that's common cause, trying to get this declassified classified report. She went to lay criminal charges against the Minister. She approached the President. She wrote various letters. I'm saying all those efforts were in aid of regularising the situation around the report.
Mr van Loggerenberg: Clarity, please, Chair. Sorry.
Adv Mpofu: I understand your question. Are you saying that you're in possession of something illegal, and you want to make it legal? Yes. Well, then the alternative is that all these meetings and letters and approaches to the President were just for fun.
Mr van Loggerenberg: Yes. So, that makes my point, of the evidence I led in chief, Chair.
Adv Mpofu: I see. So that's your evidence. Okay. Thank you. No, that's very clear. Now. So, then my next question is redundant. And don't shout at me for putting it. It's for the record here. Therefore, the sum total of your evidence is that all the issues that I've pointed to were intended rather, had no purpose at all. There were 'play-play' meetings and letters and approaches to the President and laying criminal charges against the Minister.
Mr van Loggerenberg: I don't know, Chair. I think the Committee must decide that once we hear the version of Ms Mkhwebane.
Adv Mpofu: I've told you the version of Ms Mkhwebane. I've just told you.
Mr van Loggerenberg: Then let us leave it to the Committee, to adjudicate or to consider. I don't want to express a view on something I don't know.
Adv Mpofu: Okay, no, no, that's fair enough. Mr van Loggerenberg. But the Committee depends on you and I, depends on the witnesses to assist it. But we can't force you. If you don't want to concede, or rather, you're doing worse than that, if you are denying that the purposes of those meetings were to achieve the obvious but let me just say this.
Mr van Loggerenberg: I think that, Chairperson [Adv Mpofu trying to interrupt], I think the letters and the attempts speak for themselves. They were effort to obtain a declassified copy of the document [Adv Mpofu trying to interrupt]. That is, I think, common cause, actually [Adv Mpofu trying to interrupt]. The point I've always tried to make is the following point. And it's a very simple, narrow point. If the Public Protector was in possession of the report unlawfully and illegally, so she did not say this at any stage. She then uses it to impose remedial actions, without providing it to those implicated parties. She also does not provide it to the court. That's the point. [Adv Mpofu trying to interrupt]. So, how she got it is of less importance for me. I know she did get because she says so in the 31 January 2019 recording. [Adv Mpofu trying to interrupt] She also says possession of it is a criminal offence.
Adv Mpofu: Yes. She also said it in the meeting that we listened to. Remember?
Mr van Loggerenberg: That's the same meeting I'm referring to, Chair.
Chairperson: That's the meeting he referred to.
Adv Mpofu: Oh, I'm sorry. Yes, the meeting with Dr Dintwe. And she…
Mr van Loggerenberg: So she had it. It's as simple as that. She had it.
Adv Mpofu: Exactly.
Mr van Loggerenberg: Now she wanted to use it and make it legitimate, so that she could rely on it in her findings and remedial actions and the report.
Adv Mpofu: Thank you very much, Mr van Loggerenberg. I couldn't have put it better myself. That's the…
Mr van Loggerenberg: But she issued the report prior to achieving that goal.
Chairperson: Okay, you're done? I just want to make sure, because I don't want the disturbance between the two of you. You're done now. Mr van Loggerenberg?
Mr van Loggerenberg: Yes, Chairperson.
Adv Mpofu: Okay. Yes. No, no, thank you. That's what you're saying? It's kind of... Would you agree? And again, I don't want to use legalese, that what you're doing now is to give us what is called inferential reasoning. You are saying if she did this, and that and that, therefore you must deduct this and that. You understood 'infer something'? Correct?
Mr van Loggerenberg: I'm explaining the basis and the rationale of one element of my complaint.
Adv Mpofu: No, no, no, no, we're not about your complaint here so far. We're about your conclusion that she emphatically said she had not seen it. And that's…
Mr van Loggerenberg: [increasingly frustrated] Yes, correct, correct. Yes. You can infer.
Adv Mpofu: Thank you. [annoyed] Are you finished, Mr van Loggerenberg?
Mr van Loggerenberg: Yes, Chair
Adv Mpofu: Yes. So, the proposition I'm putting to you, is that your support for reaching that conclusion is based on inferential reasoning that you have just explained to the Committee? Correct? Yes, Chairperson. Thank you. It's not based on anything that is explicitly or emphatically said, it's based on inferential reasoning, correct?
Mr van Loggerenberg: Yes, in the full conspectus of what I testified about.
Adv Mpofu: Thank you very much, Mr van Loggerenberg, we can move on. Okay, as long as we're clear on that. The next point that is made in the paragraph that you just took us to, is what I call the 'sangoma point'. So…
Mr van Loggerenberg: Sorry, Chairperson. Mr Mpofu began what where we are now with number two of the Big Five. We dealt with the Sikhakhane Report, the KPMG Report, the Groen press release. And then he wanted me to confirm that the Public Protector also relied on the Inspector-General of Intelligence Report.
Adv Mpofu: Yes, and that's exactly it, you are 100% right. That's where we are. What other point did you want to make?
Mr van Loggerenberg: No, in other words, at the time that she then relied on this report, she was in illegal possession of the report. That's my point.
Adv Mpofu: Yes, she was. Thank you. Legally speaking, she was, yeah, in the sense that that's exactly why I've been at pains maybe since tea, I've been trying to tell you that she was trying by all these methods to regularise, or let's say, legalise that.
Mr van Loggerenberg: I understand, Chair.
Adv Mpofu: Yes, so we're clear now? Are we clear with each other?
Mr van Loggerenberg: I think so, Chair. I hope so.
Adv Mpofu: All right, I hope so, too. So, we can go to the sangoma point. Now, I'm saying to you, as far as the…I'm sure I don't have to say to you that she cannot be impeached for not being a sangoma. But as far as the second sentence that you raised, you took us to paragraph 252. This is what it says, "as stated above, a redacted version of the OIGI Report was declassified, but has subsequently been reviewed by the court and set aside". Yes, Chair. Yes, you would agree that that statement is completely unrelated to the report? It cannot be logically linked to the - sorry, there are so many reports we have spoken about - to the Public Protector's Report.
Mr van Loggerenberg: I do not know, Chairperson. I do not know. All I know is that had Ms Mkhwebane engaged with me, had she put that report to me, one of the first things I would have done is taken it on review. I did not even know it existed.
Adv Mpofu: Yes, but 'if and if and if and if' is not going to help us. Let us talk facts, Mr van Loggerenberg.
Mr van Loggerenberg: It is a fact.
Adv Mpofu: I am saying…sorry, are you laughing at me? Okay, okay. I thought maybe I said something funny. No, what I am saying is, you would agree that this part about the declassification and review happened in 2020? Yes?
Mr van Loggerenberg: I am sorry, Chair, I just lost some audio there.
Adv Mpofu: Oh, sorry. Sorry, Mr van Loggerenberg. I am saying, you would agree, I'm sure, having been the applicant, that the review of that report happened in 2020?
Mr van Loggerenberg: I commenced in 2019 and conclusion was in early 2020. Correct. Yes, Chair.
Adv Mpofu: No, it was on 8 June 2020. That is when you obtained your order.
Mr van Loggerenberg: Correct. But I initiated…
Adv Mpofu: [sighs] I am not talking about initiation. I am talking about review. It was reviewed and set aside on 8 June 2020. Surely you understand that?
Mr van Loggerenberg: Yes, I understand that.
Adv Mpofu: And you accept it as correct?
Mr van Loggerenberg: It is correct, Chair.
Adv Mpofu: Thank you. Now, I am saying, unless Adv Mkhwebane was a sangoma, she wouldn't have known in July 2019, at the time of issuing the report, that a year later it was going to be reviewed and set aside. I'm sure we agree at least on that?
Mr van Loggerenberg: Yes, Chair, I am sure.
Adv Mpofu: Thank you. So, that is what I mean when I'm saying she cannot be impeached for not being a sangoma, then all of us must be impeached. Okay, thank you very much. Right, next, so that is the IGI Report. And the false... Then the Public Protector. Thank you again Mr van Loggerenberg, because you reminded us of where we were on the list. It is just that this one is very important. It actually helps with number three and number four of the Big Five. So, again, we have made some good progress.
Chairperson: So you have shaved two birds there?
Adv Mpofu: Three, Chair. I think we are on four birds now with the Sikhakhane Report, KPMG, Groen and the IGI. Then, of course, the Public Protector had also relied on an interview she had with Mr van Rensburg, one of the members of the rogue unit. Correct?
Mr van Loggerenberg: No, Chairperson.
Adv Mpofu: She did not have a recording of Mr van Rensburg's interview? If I said interview, I meant it in recorded form. Sorry, I did not mean to mislead you. You accept that she relied on the interview with Mr van Rensburg?
Mr van Loggerenberg: She relied on a partial recording of Mr Janse van Rensburg and some unknown person.
Adv Mpofu: Yes. Thank you. And Mr Janse van Rensburg was your co-accused in the criminal trial, correct?
Mr van Loggerenberg: That's correct, Chairperson.
Adv Mpofu: Thank you. And both you and him were charged for the activities of the alleged rogue unit, correct?
Mr van Loggerenberg: No, Chairperson.
Adv Mpofu: You were charged for other crimes? Alleged.
Mr van Loggerenberg: Yes, Chairperson. I was charged for supposedly, somehow, allowing the National Prosecuting Authority to pay one of their service providers an amount of approximately R100 000 improperly.
Adv Mpofu: Right. And did that not include the installation of cameras at the NPA?
Mr van Loggerenberg: It was money paid to the service provider by the NPA.
Adv Mpofu: Yes, that is what I'm saying, you were charged for things related to the illegal interception or spying on the NPA?
Mr van Loggerenberg: No, Chair, I have just explained to you. I was charged for improperly allowing or inducing the NPA to pay a service provider an amount of approximately R100 000.
Adv Mpofu: For what? For the spying equipment?
Mr van Loggerenberg: For their installations of their equipment.
Adv Mpofu: Yes, thank you.
Mr van Loggerenberg: It had nothing to do with the unit.
Adv Mpofu: No, do not worry, Mr van Loggerenberg. I am not interested in those minor details. It is insufficient for me to say that you are charged for activities related to the installation of spying activities at the NPA and equipment related thereto. That is fine. Okay, you are happy with that?
Mr van Loggerenberg: I have answered you, Chairperson.
Adv Mpofu: That's fine. You do not have to answer it again. And then the Public Protector? Where are we now? The seventh set of information that she relied on was, again, a recording of Mr Lombard and Mr de Waal, who were also former members of the rogue unit. Correct?
Mr van Loggerenberg: She relied on a partial recording of a conversation between Mr Moyane, Mr Makwakwa, Mr Helgard Lombard, who was a member of the Special Projects Unit, period February 2007 to April 2008 only, and Mr de Waal, who was a member of the unit in its different conventions, until it was shut down in October 2014.
Adv Mpofu: And, among other things that they said was the confirmation or the information, about spying on the NPA, allegedly, in relation to the Selebi matter, to give information to President Mbeki, the thing that we dealt with yesterday.
Mr van Loggerenberg: I think I've answered you on that, Chair. It's a very confusing conversation.
Adv Mpofu: But something like that?
Mr van Loggerenberg: Yes, it seems to me that the DSO actually bugged themselves, each other.
Adv Mpofu: [chuckles] They bugged themselves. Okay, thank you. Okay, then, the next piece of information she relied on were the documents submitted to the Public Protector in 2014, long before Ms Mkhwebane even got there, in relation to the complaint of Mr [Keletso Bizoski] Manyike, another member of the rogue unit. Correct?
Mr van Loggerenberg: No, that's incorrect, Chairperson.
Adv Mpofu: Which part?
Mr van Loggerenberg: Mr Bizoski Manyike was never a member of the Special Projects Unit, the National Research Group or the High Risk Investigation Unit, in any manner or form [inaudible because Adv Mpofu was talking over him] ...report states.
Adv Mpofu: Okay. But he was aware of its activities and he even made a televised, even I saw it, the gentleman was a Rastafarian, who made a televised account of the activities of the rogue unit and was insulted by the Sunday Times just for his religion, is that the man?
Mr van Loggerenberg: I don't describe him like that, Chair, and I disapprove of a description like that. I used to get along very well with him. If you say so. All I can recall in the report is that Ms Mkhwebane relied on him in what she described as a former unit member, which is factually incorrect. And I dealt with all of these claims under oath, which forms part of the court record and that was settled before court. In terms of the interview on television, I've also seen parts of it. I actually asked for right of reply, and we were going to have a one-on-one session live on television, but he withdrew at the last minute because he said the matter was sub judice.
Adv Mpofu: Yes. Well, at least he observed the sub judice rule. So, okay, that the... No, no, fair, fair enough. And just for your information, I've just been corrected and taken instructions. The deposition is that and if you know, you know, if you don't know, you'll just say you don't know, is that Mr Manyike was actually representing members of the rogue unit. He was basically speaking as a union person. But we don't have to, if you don't know, we don't have to be bogged down with that. We'll have evidence around that.
Mr van Loggerenberg: Well, the report doesn't say so. The report says that his evidence was accepted as a member of the unit.
Adv Mpofu: Yes. I don't want to go to that, Mr van Loggerenberg. Otherwise, we are going to have to…I can tell you that road will end us at the place where we have inferential reasoning, that is oblique and indecipherable and gobbledygook. Okay.
Mr van Loggerenberg: Chair? As long as it's clear to the Committee, Mr Bizoski Manyike was never a member of that unit and he knows nothing of it, you know.
Adv Mpofu: Yes, no, fine. That's what I'm saying. I don't want to quibble with those issues.
Chairperson: Just a pause, Adv Mpofu. Hon Sukers?
Ms M Sukers (ACDP): Good morning, everybody. Chair, I just want to point out, Mr Mpofu's now called it twice the rogue unit. I think the witness has said that he is not comfortable with that when he started.
Chairperson: That's fine. We had established that he chooses to call it rogue unit. And this shouldn't be a problem. Mr van Loggerenberg has indicated here that it was a High-Risk Investigating Unit. So, let's just deal with that in that way.
Adv Mpofu: Yes, we sorted that out on day one. When me and Mr van Loggerenberg met with you [referring to the Chairperson]. We sorted it out between me and Mr van Loggerenberg that I will continue to call it that. He calls it the high risk unit, or whatever. I even said at that point for the purposes of this Committee it is a unit. And then I'll be thinking, 'rogue unit'.
Chairperson: Because you have rogue, you will always think of 'rogue'. Yes, continue.
Adv Mpofu: But I've been saying it so many times, but I'm not saying to be facetious. It doesn't mean that I'm going to turn around now at the end and say, "ah, Mr van Loggerenberg". Oh, by the way, yeah, when we're on that, when was the… does the rogue unit still exist, Mr van Loggerenberg?
Mr van Loggerenberg: I don't know of any rogue unit, Chair.
Adv Mpofu: Is that your answer?
Mr van Loggerenberg: Which unit are you referring to, Mr Mpofu?
Adv Mpofu: Now, you know Mr van Loggerenberg, the problem with a witness who just grabs anything is this. You were asked this question, this very question I've just asked you, "does the rogue unit still exist?" in an interview with Mr Aldrin Sampear. Do you remember that?
Mr van Loggerenberg: No, I don't remember that, Chair.
Adv Mpofu: Do you remember doing such an interview on Power FM?
Mr van Loggerenberg: Yes, I do, Chairperson, some years ago.
Adv Mpofu: Okay, I'll remind you. You were asked this question. We have sent a copy of the interview to our learned friends, we are not reading it now, Chair. But if the witness denies, then we will. It doesn't need him. So, we can have that debate some other time.
Adv Bawa: Can I maybe…? Just to place it on record, it was emailed to the Secretary this morning at 8:30am? I haven't listened to it at all.
Adv Mpofu: Okay. That's fine. Thank you very much. I'm saying again, Mr van Loggerenberg, I'm saying this just for the sake of progress, if I'm misrepresenting you, or whatever, I will be discovered and impeached. So you were asked this very question, does the rogue unit still exist? And this was your answer: "No, it was shut down by Tom Moyane in 2014". Do you remember that?
Mr van Loggerenberg: I don't but if you say so, I'll accept that, Chair.
Adv Mpofu: Yes, that's what I'm saying. At that time, there was no one to say you must not be asked a question using "when was the rogue unit", whether it still exists? And you answered the question.
Mr van Loggerenberg: Yes, Chairperson. That was a radio interview. There's a little bit of a difference for me, personally, in respect of that interaction, and this particular platform, or the Office of the Public Protector.
Adv Mpofu: No, fair enough. No, no, in fairness, Mr van Loggerenberg, you were not the one who objected. I think you and I understand the context in which I'm using that word, but I was just showing that…how..this thing of trying to hide behind semantics is not going to help anybody. Because you yourself, in this context, accepted that it is called the rogue unit. By answering that question of Mr Sampear, it doesn't mean that you, Mr van Loggerenberg, are now adopting what you call the rogue unit narrative. Nobody in their right mind would think that you are now no longer denying the 'rogue-ness' of the unit, or at least not me. I was just illustrating that point. And believe me, I'm not making that point that simply because you answered this, now, suddenly, it means you're saying it's the rogue unit, that would be ridiculous.
Mr van Loggerenberg: I promise never to refer to advocates as rogue advocates.
Adv Mpofu: Yes. Well, are you trying to be coy and funny, Mr [van] Loggerenberg? So that we can laugh at the right time.
Mr van Loggerenberg: No, Chair.
Mr K Mileham (DA): Chairperson?
Chairperson: Hon Mileham.
Mr Mileham: Chairperson, once again I need to object to the tone and manner in which Adv Mpofu is addressing the witness. We agreed in the directives that witnesses would be treated with dignity and respect. And that is not the case in the way that Adv Mpofu is addressing the witnesses. In fact, I find his behaviour, and I said this yesterday, towards this Committee and towards the witnesses to be aggressive, to be disrespectful, to be interrupting, to be arrogant, and dismissive. And I'd like to put it on record that Adv Mpofu needs to start learning how to interact with Parliament. This is not a court of law. There's no grandstanding here. We are here to find the facts. We are here to determine whether or not there's any truth to this. And that's what we are working towards. Now, Adv Mpofu, please, I'm going to beg of you. Please, let's try and stick to the facts, let's stick to the point and deal with it appropriately. The way that…to accuse a witness of being coy or misleading, or whatever it was that you said, you used facetious earlier, that's not acceptable. That's not acceptable. If we want to question or if we want to take it further, we will. But please give this Committee and the witnesses before it the respect that they deserve. That's the very least we can expect.
Chairperson: Thank you, Mr Mileham, you have made your point quite clear.
Mr J Malema (EFF): Chair?
Chairperson: Is there somebody on the virtual [platform]?
Mr Malema: Yes, that it's me, Chair.
Chairperson: Okay, go ahead.
Mr Malema: I think this Committee has got a Chairperson. And that, if Adv Mpofu or any of us are not consistent with the directives, it is well within the Chair['s rights], to bring us back into order. It is going to be very abusive for people to abruptly just stand up here and tell us their feelings. It's not like we're all feeling the same. But we subject everybody in the process here into the capable hands of the Chair. So, please do not allow that, Chair, that people must just when they feel hot raise hands here to tell us they're feeling hot. It's not going to happen like that. As long as you have not said to Adv Mpofu "you are out of line" or anything of that sort, Adv Mpofu is in line and should be protected by you, Chairperson. Thank you.
Chairperson: Thank you, Hon Malema. Before I acknowledge you, Adv Mpofu, I want to repeat again, what I said earlier, that I request that you tone down. You don't have to…because we can't change who you are, in terms of how you ask your questions. But I did indicate that I will invoke the directives when I get to that point.
Adv Mpofu: Yes.
Chairperson: Let's continue.
Adv Mpofu: No, no, no, no. I have to respond. You've just made remarks to me. And someone has just insulted me of grandstanding. So I've got to, please, if you don't mind, Chair, just respond to that. I would not want us to stay at that point, but you can make your brief point. I don't want us to be side-tracked in this meeting. Chair, Adv Mkhwebane and me are entitled to respect as well. If that is not so, then at least me, I will stop participating in this Committee, because I'm assuming that as much as the respect is expected for me, it must be given. I'm a member of the…I'm a citizen of this country. The fact that you are a Member of Parliament doesn't make you…actually you're my servant. I'm a citizen. All right? So, I'm not going to be here to kiss the feet of anybody. I'm here to respect people and then they can respect me back, then we're fine. But I'm not going to be insulted and be called grandstanding and all those things and keep quiet. I will never do that. Never. I'd rather die.
Chairperson: Thank you. I think you have covered the point. I certainly would not chair any kissing of feet.
Adv Mpofu: [speaking over the Chair] No, that's not going to happen.
Chairperson: Please proceed.
Ms O Maotwe (EFF): White privilege sucks, Chair. White privilege.
Chairperson: Just pause, Adv Mpofu. Hon Maotwe, I'm going to ask that you don't do what you're doing again. Members here get to be recognised to speak. If they raise a point of order, I recognise them. I am not going to allow you to continue doing the things the way you're doing. Please refrain from that. Adv Mpofu.
Adv Mpofu: Thank you, Chair. Thank you, Chair. Thank you, Chair. Mr van Loggerenberg…and also, Chair, let's be even handed. The reason I was asking Mr van Loggerenberg that question is because he was being sarcastic. And nobody here, not the Honourable Member, not the Chairperson is intervening. So I have to intervene for myself to protect myself. All right? And I'm going to do that until the last day of this hearing. Because nobody here talks about the fact that Mr van Loggerenberg has referred to a 'rogue advocate'. Who's the rogue advocate? Who is the rogue advocate? And I must respect that.
Chairperson: Okay, thank you, Adv Mpofu.
Adv Mpofu: Anyway. All right. Mr van Loggerenberg, can we go back to the business?
Mr van Loggerenberg: Yes. Chairperson, can I just apologise to Mr Mpofu? If he mistook…I certainly did not mean to insult him.
Adv Mpofu: I accept that Mr van Loggerenberg. Thank you. Let's just get back to the business of the day. So, thanks for assisting me just to put certain things in perspective. Okay, now, I was then saying that those eight things: (1) Sikhakhane, (2) KPMG (3) Groen, (4) IGI, (5) van Rensburg, (6) PP report itself and her investigation, (7) de Waal and Lombard, and (8) Manyike, were the sum total of the material that the Public Protector took into account. I think we are clear on that, subject to obviously you said this one must be qualified this way or whatever. But those are the materials, correct?
Mr van Loggerenberg: I think more or less, yes, substantially, Chairperson. Which brings me to one of the points that we opened this morning, I asked the Chair, whether I could raise certain things. There's one item that would fit into this conversation if I may just raise that particular one, Chair?
Chairperson: Yes. Your points in the air?
Mr van Loggerenberg: Yes, it concerns then, it fits in with what Mr Mpofu has just asked me.
Mr van Loggerenberg: What Ms Mkhwebane relied upon, in concluding Report 36 of 2019/20.
Chairperson: Okay. I will allow you to do that. He seems to want to complete some….
Adv Mpofu: [cutting off the Chairperson] Thank you. Sorry, Mr van Loggerenberg. I don't mean to interrupt you. But just for progress. Yes, you may raise that point. And even your other points, just in case I need to deal with them so that I don't have to come back to you. Yeah, I think it would be better that way. Thank you.
Chairperson: Go ahead, Mr van Loggerenberg.
Mr van Loggerenberg: Thank you, Chair. So yesterday, in questions posed to me, and there was a a bit of a haggle between Mr Mpofu and I, in respect of what he referred to as 'primary targets of the investigation', and I preferred the term 'implicated persons'. I think ultimately we agreed to use 'prominent persons'. I've reread the report, and on my rereading last night, the following people are targets, prominent or otherwise, or the preferred term for me would be 'implicated persons', of the report. Mr Pravin Gordhan; Mr Ivan Pillay; Mr Oupa Magashula; 26 civil servants that were, over the years of its existence, members of that unit; Mr Janse van Rensburg as the manager of that unit in year one of its existence; the manager of the unit for the nine months in 2012, when I did not oversee it; me as the manager for the bulk of the period of its existence; and in respect of the remedial action, another person, Mr Pete Richer, which totals 33 targets or implicated persons or whatever terminology one would prefer. Of these 33 persons whose rights were affected by Report 36 of 2019/20, only the first three were served with Section 79 notices or heard by Ms Mkhwebane. None of the others were. What would make the one more prominent than the other one, in my view, would likely be their public profile or their seniority, in terms of a current or erstwhile ranking as civil servants, in my own view, and this issue speaks directly to my complaint. Because the issue for me is not the merits contained in Report 36 by-and-large, about which I'm currently being questioned. Because they've been dealt with before courts and other platforms. The issue is also not my conduct. The issue is not anybody else's conduct before this Committee. The issue speaks to the absolute part of my complaint. And that deals with the aspect that Ms Mkhwebane failed to conduct the investigation without prejudice. It is the conduct of Ms Mkhwebane that is being considered by this Committee, as I understand it. That was the one point, Chairperson. If I understood Mr Mpofu correctly, he suggested I should deal with all the points now. Chair?
Chairperson: Yes, go ahead. Proceed. Yes, you got him correct.
Mr van Loggerenberg: Okay. The second item that hung in the air was this issue about without fear, or favour, or prejudice. I went and found the quotes. On day one of my testimony, which was day 2 of this Committee's hearings, on the recording at two hours five minutes, somewhere from around there, I say the following: "an investigation was conducted and in terms of the Public Protector Act, the person who occupies that office, who happens to be Ms Mkhwebane currently, did not have a choice. She had to contact me and afford me sight of what the claims were. And she had to conduct an investigation without fear, or favour, or prejudice. She failed to do all of those things. And that is my complaint. It's really that simple. I wasn't heard once again, in all of the saga, I was simply disregarded as if I didn't exist and was completely irrelevant". Then yesterday, which was my second day before this Committee and the third day of the hearings, in the recording at about 19 minutes, I am very specific in my response to the question posed, where I deal specifically with the essence of my complaint being restricted to the prejudice element of the fear, favour or prejudice. I restricted my complaint, therefore, to prejudice, so that the Committee is clear on that. Where I did refer to without fear, favour or prejudice. Yesterday, my second appearance, I specifically quoted from a court judgement and from my affidavit, in a general sense, and then I specifically made the point that in my case and in my experience, Ms Mkhwebane did not act without prejudice. And that is the essence of my complaint, again, which I reiterated. So, that is the second point, Chair. On this issue of the use of the term 'rogue', as opposed to 'so-called rogue', I don't want to rehash the debate that's just been had between the members of the Committee and Mr Mpofu, as the evidence leader. I simply want to speak to what is directly related to my complaint, and that is that Ms Mkhwebane, who in her capacity as the Public Protector, who was still busy conducting the investigation, used the term 'rogue', she also used the term 'so-called', as Mr Mpofu pointed out, but she used the term 'rogue' on multiple occasions. I gave two examples of repeated references, which occurred prior to the conclusion of Report 36 of 2019/20. I did not mislead this Committee, as suggested by Mr Mpofu. Those two instances that I referred to, and there are actually more, but the two I refer to in evidence, was the YouTube video and the Inspector-General of Intelligence interview. That also speaks directly to the essence of my complaint, which is that the process was concluded not without prejudice. There were three ancillary issues which were also left hanging in the air, Chairperson. One is the question I was asked why I approached this Committee as a whistleblower. Section 1 in the Protected Disclosures Amendment Act, included the words in Section 1, under the definition of employee, now includes the words "or worked", so it's a person who works or worked, past tense. In other words, a former employee, and I accept the shortcomings of the Act. I say so in paragraph three in my submission to this Committee, but I still seek to assert my status as a whistleblower. And my paragraph three expresses that clearly. I was asked about my so-called psychological condition by Mr Mpofu. I'm not ashamed of it. I've never hidden it from anybody. It's not something I walk around with on my sleeve. I'm fully compos mentis. It's something that's very treatable. The World Health Organisation has found that one in eight people, statistically, have been diagnosed with one or other similar afflictions in the world, which statistically means on this panel, today, I'm not the only person potentially suffering from such a condition. And I sought help and I received treatment many years ago in my 20s. The reference to it, though, in my view, emanates from what I described in my chief evidence, as the propaganda campaign, because one of the initial personal attacks, before the notion of this unit was conjured up, was that I was supposedly mad, mentally ill, a psychopath, etc. which is all nonsense. The medicine in inverted commas, which one committee member, for some reason or another, thought was whiskey, is in fact, a combination of alcohol-free antiseptic, some supplements, aspirin and water, and probiotics, because I'm on antibiotics, because I had a bicycle fall in a contest I participated in and I am undergoing major reconstructive surgery on my jaw and teeth, which will take many, many months. And that explains why I'm mumbling and sometimes appear to be in pain, or discomfort. Thank you, Chairperson.
Chairperson: Thank you. Thank you very much. Adv Mpofu?
Adv Mpofu: Thank you, Chair. Yes. Thank you. Mr van Loggerenberg. When it comes to your… Well, firstly, just to correct you. You just promoted me to evidence leader. I'm not the evidence leader. I'm just a lowly rogue advocate, according to you. So…
Mr van Loggerenberg: I'm sorry.
Chairperson: Don't go back to that, please.
Adv Mpofu: No, it's fine. Okay, then the next question about the five minutes, which ended up being 33 minutes. The five-minute YouTube transcript, rather, extract that was played here. I've just done a quick transcript of it. This is where the high watermark of your accusations is that Ms Mkhwebane used the word 'rogue unit', not qualified by 'so-called', in the way that we've just had that small debate earlier, the way that you used it at Power FM. But I just want to be sure that whole exercise, its intention was about this. She says in the clip that was played here, "our investigation of the Minister of Public Enterprises, there were allegations that we're harassing him and issued a subpoena, requesting information about several investigations which were conducted". And she says the first one is a pension pay-out of Mr Pillay, let's jump that. Then she says at the part that I think is the one that you want this Committee to use to impeach her. She says, "I don't go around and ask people to complain. Therefore, when I receive complaints, I will also have to approach the persons complained against and the request their side of the story". And we all know that the EFF complaint was dealing with the rogue unit in the process which has been followed – recruitment, procurement of equipment, operations. Another complaint relating to the Executive Members Ethics Act, is they were alleging that Minister Gordhan lied in Parliament about his meetings with the Guptas. Is that the offending part?
Mr van Loggerenberg: The quote is in the letter.
Adv Mpofu: Yes, that's what I'm saying. In other words, the fact that she was referring to the EFF complaint about a rogue unit means that she must be impeached.
Mr van Loggerenberg: Chairperson, I think yesterday I clarified I'm not in any position to demand anything from this Committee. So, I have never called for impeachment.
Adv Mpofu: No fine. I'm sorry. But you said she's not fit and proper. Is that one of the reasons why she's not fit and proper?
Mr van Loggerenberg: Within the conspectus of my complaint, yes, Chairperson, it adds up.
Adv Mpofu: Okay. Thank you. All right.
Mr van Loggerenberg: Also the reference to the "people have died and will likely die" or something to that effect.
Adv Mpofu: Yes. Yes. She said. Yes. The part that says your other proof is that she's not written properly. In that part, she said: "I'm also still prosecuting another"- sorry. "I know one will be faced with a lot of questions. In fact, there will be a lot of questions, there will be allegations that I'm also persecuting Minister Gordhan. But I'm doing my work. And I understand that when it comes to the issue of the rogue unit, people have lost lives and have been tainted, and I think that is still going to happen, but I'm going to do my work". She's not fit and proper because of that, as well. Correct?
Mr van Loggerenberg: Chair, my complaint speaks to not acting without prejudice.
Adv Mpofu: Thank you. So can you just answer the question, please? So because she says, "people have lost lives and people have been tainted", are you not one of the people who have been tainted by these allegations?
Mr van Loggerenberg: Absolutely.
Adv Mpofu: But she's not fit and proper for pointing that out?
Mr van Loggerenberg: Chair, I've just answered that. It's not a simple reduction, as being put to me. In my evidence, I'm trying to portray to this Committee that a Public Protector approaches a complaint and an investigation with an open mind. Now, in this case, the EFF said here's a unit that's rogue and did all sorts of horrible things and that's why it's rogue, please investigate. Then you don't perpetuate that label, because that suggests you don't have an open mind. That's my point. Now, you may agree with me; you may disagree with me. That is the point I'm making.
Adv Mpofu: No, good. No, I understand the point. Yeah. For the record, I disagree with you. But the point now was the other reason why Ms Mkhwebane, or Adv Mkhwebane, is not fit and proper, is because she said people have been tainted, including you.
Mr van Loggerenberg: No, I believe she's not fit and proper because of the elements of dishonesty and the fact that she did not conduct the investigation in the manner that she ought to have.
Adv Mpofu: Yes. But one of the- I was trying to say to you here, we had a tussle, let me call it that, because I was telling you "please go to paragraph three". "No, I want to go to paragraph one", "go to paragraph two", no, I want to go to paragraph one". Because of this, because she said people will be tainted. That's what I'm saying. Is that conclusion, among other things, for the fact that she said people are tainted, including you.
Mr van Loggerenberg: Yes, it is part of the sentence and it should not be read in isolation, but in the context of the entire sentence.
Adv Mpofu: Good. I'll read the whole sentence. And then you must tell me which part. It says, "I know one will be faced with a lot of questions. In fact, there will be a lot of questions. There will be allegations that I'm also persecuting Minister Gordhan, but I'm doing my work. And I understand that when it comes to the issue of the rogue unit, people have lost lives and people have been tainted. And I think that it is still going to happen. But I'm doing my work. And I will be serving that notice today, which is 2 June 2019. In fact, it's 3 June 2019 and I'm ready to receive all the backlash, but I'm going and doing the work. I'm not targeting or harassing any minister, or specifically Minister Gordhan". That's the full sentence, which part of that suggests that she's not fit and proper?
Mr van Loggerenberg: I've answered the question, Chair. There's nothing more I can say.
Adv Mpofu: No, Mr van Loggerenberg. You said I'm reading half of the sentence. I've now read you the full sentence. Well, how can you have nothing to say?
Mr van Loggerenberg: It's contained in my Annexure JVL 3. In my affidavit, before this Committee, the specific sentence, the sentence is "when it comes to the rogue unit people, people have died or people have been killed. People have been tainted". That can only mean one thing. I don't know what it means to you, Chairperson, but to me it means there's a rogue unit. They killed people, they tainted people. They are going to likely kill more people and taint more people. That is biased, that is prejudice.
Chairperson: Thank you, Mr van Loggerenberg. I think you've responded to the question. Adv Mpofu, maybe before you proceed, just pause. Hon Mulder.
Dr Mulder: Thank you, Chairperson. It seems that the exact wording that was used in that interview is going to be rather relevant. But I ask that the Committee also receives a copy of the printout of the exact wording. it doesn't have to happen at this moment, but could we please be furnished with that?
Adv Mpofu: Thank you, Chair. Yes, no, that is easy. We've already done a transcript. All that we will do, we'll send it to our colleagues. Once it's agreed, then it will be circulated. Thank you. You said in your interview on Power FM, that people have died or lost lives, sorry I can't remember the exact wording. What were you referring to?
Mr van Loggerenberg: I don't know, Chair. If you can give me a transcript or allow me to listen to the interview again. I remember meeting Mr Sampear. I remember doing the interview, but I don't recall specifics.
Adv Mpofu: No…
Mr van Loggerenberg: If you have it with you, Chairperson, Mr Mpofu, if you can read the question to me and my answer, it may assist.
Adv Mpofu: I'm sorry. No, that one is quite long. That's the one I said to the Chair, I promise, otherwise, we're going to [Chairperson: yes] have another one hour listening. Yeah, we will.
Mr van Loggerenberg: What I can say, what I have said on occasion, Chairperson, is that the trauma caused as a result of these events, has almost caused people to die. I've had to attend to families where people have attempted to commit suicide.
Adv Mpofu: Yes. But when the Public Protector says the same thing, that people have died for whatever reason, trauma or whatever, that that means she is not fit and proper.
Mr van Loggerenberg: I read that sentence completely different, Chair.
Adv Mpofu: All right. And then you said in your affidavit, in support of Mr Pillay, at paragraph 6.5: "this unit was utilised in investigations, whether real or present an undisputed threat to the lives, safety, and well being of other investigators in the unit listed. SARS, as an institution, records evidence and investigation and in instances where other investigators declined or requested to participate in aspects of certain high-risk investigations, for fear of their lives and those of their families". Is that still your evidence?
Mr van Loggerenberg: Yes, Chair.
Adv Mpofu: All right. Thank you. Just as an aside, you also within the judgement allude to this. And you started with this in the morning, I think on day one, or probably when I started the cross examination. Sorry, I stand corrected. And if I'm misrepresenting you, you will explain. But you did say that some of the information about the rogue-ness of the unit came from disgruntled and disgraced employees, words to that effect. I'm not quoting you verbatim, do you know what I'm talking about?
Mr van Loggerenberg: Yes, Chair.
Adv Mpofu: Thank you. Now by that, I suppose, it stands to reason you were suggesting that information from such people, and I think you said one of them was involved in rhino poaching, that information from SARS people must be taken with a pinch of salt, correct? You were just telling us for the love of the country?
Mr van Loggerenberg: I think one must, when somebody in the position, as those two people, there are more, but the two primary ones, who also happen to be State Security Agency operatives, or were at some point in time, one must always look at the motive. It does not automatically dismiss the value of the evidence, but one must look at the motive. And then one must look at the veracity of the evidence provided.
Adv Mpofu: Mr van Loggerenberg, I can hire you to be part of my team. Especially when disgruntled employees are going to be called here later on. But the point I'm making is that point is also made in the judgement at paragraph 183. It says criticising the Public Protector blah blah blah without paying any regard whatsoever to what Mr Pillay said in his second affidavit dated 18 October, June 2020, namely that the author of Operation Snowman was Mr [Mike] Peega, alleged to be a disgraced and disgruntled former SARS employee. Remember that in the judgement?
Mr van Loggerenberg: Yes, Chair.
Adv Mpofu: And you've already answered my next question that such evidence must be taken with a pinch of salt, in the sense that the motive might be not so holy, holy, correct?
Mr van Loggerenberg: In this case, it's a little bit more nuanced, Chair. Firstly, Mr Peega has claimed ownership of the document. And in fact, he provided the document to certain people way back in 2009, and early 2010 onwards. What preceded the drafting of that document, was what I referred to as what they called Project Broken Arrow, of which some people who were asked to participate in crafting that document way back in 2009, reported this to the Revenue Service and they reported dates of meetings and what the intentions were and so forth. In a nutshell, it was described as there were going to be efforts to discredit and cause havoc and target Mr Gordhan and Mr Pillay and the unit and myself in particular. And so, it was kind of, let me call it, there was like an orchestrated plot to create this dossier, which was when intended to be given to the then President in the hope of achieving certain nefarious outcomes. We know this because this was the evidence put before court. And we know what the motive was of Mr Peega at the time. In fact, he himself has explained that, on occasion. So, all I'm suggesting, Chair, is that one must have account of when somebody makes a claim, one must take into account the motive of the person, which should not automatically exclude the veracity or validity of the evidence, but one must have it in mind and then one must deal with the evidence with the necessary circumspect.
Chairperson: Thank you, Mr Loggerenberg. We are going to pause there for the next 45 minutes and take lunch. Come back at quarter to two.
Adv Mpofu: We're going to move to another topic, so that's fine.
Chairperson: Welcome back, please take your seats and I welcome you at the virtual platform as well, this last session of day five, on a Friday. We're now going to resume. I just need to indicate the following important points. I will be inviting Adv Mpofu and give him the last 15 minutes to wrap up his cross examination. After that, I will be opening up an opportunity for Members to interact with Mr van Loggerenberg, who will have to leave at 3pm. And thereafter, any of those who have brief questions they want to pose to the Public Protector will do so. I'm hoping that we're done by 4pm. So, thank you very much. We proceed. I now recognise and hand over to Adv Mpofu.
Adv Mpofu: Thank you, Chair. Chair, I'm going to do my best but I'm not sure if I'll finish in 15 minutes. But, as I said this morning, I'm committed to assisting. It might well be that if – I'll indicate at the end, Chair – but if I'm unhappy that I should finish, but I'm at a natural place, it might mean that the witness might have to be recalled at some other stage, then so be it. But I'll try to avoid that. Yeah. Thank you. Mr van Loggerenberg?
Mr van Loggerenberg: Yes, Chairperson?
Adv Mpofu: Just want us to deal quickly with two issues, in the time, and I'll do them quickly. Well, it's in your hands, if you do them quickly or not. The issue of the equipment – sorry, sorry, just a minute, just want to check if a certain document was sent to my colleagues. Okay, sorry. Chair, I'm sorry to do this through you. Ms Bawa, there's a letter that we sent you, it's a short letter. If you can just have a look. And then you can indicate to me if you're happy that... I won't do it now, but until you've indicated that I can refer to it. Thanks. Thank you, Chair. Okay, no, let's leave that for now. And Mr van Loggerenberg, oh, maybe we'll come back to it. You do accept…okay, no, maybe accept is a strong word. You do understand that the Public Protector's approach and conclusions and findings are that the unit was rogue, among other things, because it breached the intelligence legislation, as well as the Constitution, I think we went through that earlier, including the Interception Act – there's some Act with a long name that I can't deal with it now. But in fact, interception and removal of whatever act, let's just call it intelligence legislation. Do you accept that?
Mr van Loggerenberg: Yes, Chair.
Adv Mpofu: Thank you. Right. Now, I'm just going to put a proposition to you again, to avoid any to-ing-and-fro-ing. There's a letter, which is an attachment to all these cases - and it's well known, I'm sure you have come across it as well - which was returned by Minister Gordhan to Minister Trevor Manuel, on 22 February 2007, that would be around the time of the establishment of the unit. You know what I'm talking about?
Mr van Loggerenberg: Yes, Chair. This is where the funds are requested.
Adv Mpofu: Absolutely, yes. Yes, that's the one. Yeah, we'll try and identify it and put it up, Chair, but it's already in the system. I'm just trying to save time here. Okay, I would have gone through this letter in detail. But let me just give you what my conclusions are around it and you can confirm or dispute. This letter, in essence, says this. And I'm paraphrasing, so don't hold me to it with a gun on my head. It says "Dear Minister Manuel, we in SARS require capability to do intelligence work-
Mr van Loggerenberg: The terms are "infiltrate and penetrate".
Adv Mpofu: -infiltrate and penetrate Yeah, well, yes. Yeah, but on the understanding that that constitutes intelligence work, and therefore, and that work is outside the mandate of SARS. And therefore…
Mr van Loggerenberg: Infiltration and penetration is indeed [inaudible as Adv Mpofu talks over Mr van Loggerenberg].
Adv Mpofu: Thank you. Thank you. Yes, indeed. And, and therefore, we would like to have money allocated to NIA as National Intelligence Agency, so that a unit housed at NIA can then be used to satisfy our needs, because it falls under them. In terms of legislation, as I say, I'm paraphrasing, but would you agree that that's the gist of what was being proposed?
Mr van Loggerenberg: That was a proposal at the time, yes. Chair, I recall it quite distinctly. What should be read with that document is the Draft Operational Agreement on the NIA's side, and then the legal opinions on the NIA side in respect to that concept that that letter sought to create.
Adv Mpofu: Yes, fine, that, what you are referring to…
Chairperson: Just hold.
Adv Bawa: Sorry, sorry, Adv Mpofu. But I don't have that letter, you're referring to.
Adv Mpofu: Bundle A, page 4370. Okay, I'll send it to you on WhatsApp.
Adv Bawa: That's fine. It's 4370 [Adv Mpofu: Yes]. Then the person can put it up on [Adv Mpofu: Okay] on the screen for the Members as well.
Adv Mpofu: Okay, so now if that will happen, [clears throat] excuse me, I'm just saying I can send it to you on WhatsApp as well, if that will take time. In the meantime. Okay, thank you. Thank you Ms Bawa. The document you are referring to is a document, and again, because of time, I hope who will not quibble about it because you have, as you say, you're familiar with it. That document is called agreement, or let's call it a draft document, as you call it, between the National Intelligence Agency and South African Revenue Service, for a cooperation between NIA and SARS and is dated 17 September 2002. And it's attached to the letter, on this version as PG6, which probably means Pravin Gordhan 6, in one or other litigation. But…
Mr van Loggerenberg: That's not the document I'm referring to, Chair.
Adv Mpofu: Not that one? Okay, fine. That's fine.
Mr van Loggerenberg: If I can try and be brief, there were several memoranda of understanding and operational agreements between the South African Revenue Service and the intelligence agencies and law enforcement agencies over many years. This is one example. [Adv Mpofu: Yes] This remained in place. I think it still remains in place to this day unless it's been brought to a close.
Adv Mpofu: Cancelled or whatever. Yeah, no fine. Okay-
Mr van Loggerenberg: If we can go back to the letter.
Adv Mpofu: Yes. And the... to the letter, yes. Okay, fine. Let me read it out to save time. 2.1 of the letter says, "collecting tactical intelligence invariably means penetrating and intercepting organised criminal syndicates. This is an activity for which SARS does not presently have capability, including the legislative mandate to manage clandestine activity. Yeah. Okay. Now, the point I'm making for the purposes of this commission, I don't want to get into all that, is that the Public Protector, came to the view that the activities of the unit that had been...that were understood by her to be taking place in respect of those eight sources that we spoke about earlier, were in contravention, not just of the Constitution, but also of the relevant legislation, intelligence legislation, to use the general term. Do you agree with that?
Mr van Loggerenberg: Yes, Chair.
Adv Mpofu: Thank you. And again, that is how she came to the conclusion of so-called rogue-ness. Okay, thank you, if you agree on that-
Mr van Loggerenberg: No, no, Chair. Just a point in response to the question. This document does not relate to the unit that the Public Protector investigated, Chairperson. This document relates to a series of planning sessions and interactions between the then National Intelligence Agency and the South African Revenue Service, in the years 2005 until this letter came about, where it was agreed that there will be a capacity within the National Intelligence Agency dedicated to assist the South African Revenue Service to intercept and infiltrate organised crime syndicates. And that refers to things like use of agents and undercover operatives and that sort of thing. And that the Revenue Service will effectively ensure payment for the first three years on the creation of such a capacity within the National Intelligence Agency. So if you look at paragraph 2.4, there were estimated personnel costs for three years forecast. And that was in consultation with the National Intelligence Agency. On the flip side, within the National Intelligence Agency, there will be similar documents speaking to the same thing, but it was never seen through. In other words, this document, for instance, is a document that seeks funding from Treasury to be directed to the National Intelligence Agency. That funding was never really- it was approved but never occurred because the funding was never released. The unit was never created and it died a death. [Adv Mpofu: Yes] It should not be confused with the Special Projects Unit, as it was known in that time.
Adv Mpofu: [speaking over Mr van Loggerenberg] Okay. Thank you. Believe me, that long answer is not necessary. I'm really trying to save time here. The only point I'm making Mr van Loggerenberg, actually, I think it was Mr Gordhan, one of the people involved in this, their version, to paraphrase, is that NIA lost appetite. And it was not carried through like you are saying, so I'm not there. That is common cause between you and me. The only- Do understand that? [Mr van Loggerenberg: Yes, Chair] Yes. So the only thing I'm saying to you is a very simple one. Which is that in coming to her conclusions, the Public Protector, among other things, considered this letter, and the fact that it was suggesting at the time, admittedly, something that would have been in breach of the law. I mean, that should be obvious. The only reason that SARS-
Mr van Loggerenberg: I understand, Chairperson. [Adv Mpofu: Yes] The error is that this letter does not relate to the unit that she expressed findings on.
Adv Mpofu: [sigh] Okay, I'm going to try again. Mr van Loggerenberg, the issue is that she might have wrongly relied, the letter might be talking about a soccer game, or whatever, I'm not there. I'm saying to you. Do you accept that among the material that led the Public Protector rightly or wrongly, or whatever you think about that, that led the Public Protector to her conclusions was the fact that in this letter, Mr Gordhan was implicitly, you know, not emphatically or explicitly, was implicitly acknowledging that that what was being proposed would have been illegal to be done at SARS. Hence, they were asking NIA to cooperate. That's all. She considered this letter as part of the material. Do you accept that?
Mr van Loggerenberg: If she did. I accept that, Chair.
Chairperson: Okay, thank you.
Adv Mpofu: Okay, it's 4171. So that's Bundle A, 4171. I know you've accepted it, but just for the record, for the Committee. In Mr Gordhan's affidavit, Chair, 73.3. He says, "in a memorandum dated 2 February 2007, Mr Pillay and I sought ministerial approval for the establishment of this SARS investigative unit, within NIA. Ministerial approval was sought and obtained only because the proposal to establish the SARS investigative unit within the NIA would have required a transfer of funds from SARS to NIA". Yes, so that's all really I'm saying. And don't worry about detail. I'll deal with this with Mr Pillay as well. So that's why- [Mr van Loggerenberg: I accept that] Thank you. And I don't want to mislead you, that you accept two things at the same time. You accept my real proposition, which was that the Public Protector relied entirely on this letter? [Mr van Loggerenberg: [inaudible] submission] Sorry, sorry, sorry, sir. Sorry, I interrupted you.
Mr van Loggerenberg: No, I don't know, Chair. If that is the submission of the Public Protector, I have no reason to doubt that.
Adv Mpofu: All right, well, if you have read the Public Protector's Report, you will know that. You don't have to do it now, but in your own time over the weekend, you must go to 44.1.18 of the Public Protector's Report. This is the part, Chair, I was looking for earlier. And while I'm at it, okay, let me kill one bird. The item there says "a copy of a memorandum from SARS to the former Minister of Finance, Mr Trevor Manuel, dated 7 February 2007". That is this document that's listed as one of the documents upon which the Public Protector relied for her conclusion. So, that's not something that can be in contention for anyone who has read the report. Agreed?
Mr van Loggerenberg: Agreed, Chair.
Adv Mpofu: Thank you. And Chair, the earlier point I wanted to make about this. I might as well make it now, in the form of a proposition summarised for you, custom-purposed to try and speed up Mr van Loggerenberg. That section of the report is called 44.1. And this, let me warn you already why I'm doing this so that when you answer it, you know where I'm going. One of the conclusions by you and the court, the three judges in this particular matter, is that, and I think you said this yesterday or the other day, actually, there was no investigation. This was just all a sham and going through the motions because the decision had already been taken. Am I summarising it correctly? 'Predetermined outcome'
Mr van Loggerenberg: No, I've never said, Chair.
Adv Mpofu: Okay. Do you think that?
Mr van Loggerenberg: I have suspicions, but I'm not comfortable in expressing suspicions when I lack facts. I won't do what's been done on to me.
Adv Mpofu: No, that's good enough. I know you've never said it. But I know you think it. So, all right. So, the point I simply want to make now is there's a list that goes from 44.1.1. I can't read all of them we'll be here all day. And that includes letters to the President, letters to the Inspector-General, letter to the Minister, letter to Mr Magashula, letter to the South African Security Agency, acting SARS Commissioner, and so on. A list of and recordings, and so on, and letters to Minister Manuel, notices in terms of 7(9), something like 40 to 50 items. And those are the items that show the journey that the Public Protector travelled with this matter. And the proposal I want to put to you is that I'm going to argue at the end, and I'm giving you an opportunity to comment that that alone is an indication of, as I said earlier this morning, the length to which she went, and that to suggest that there was actually no investigation, this was just some plaything is absurd. What do you say to that?
Mr van Loggerenberg: I say that one should reflect on what was put under oath by me before court, in respect of the content of the Report by the Public Protector. And if only the Public Protector engaged any one of those 33 people that I'd mentioned earlier, they would have been able to assist and not make the errors that were made in the report. That's my response.
Adv Mpofu: Sorry. Okay. All right. I missed that response for some reason, but it's fine.
Mr van Loggerenberg: You know, there's a documentary review. If only she had done, which is what I'm complaining about, which is if only she had spoken to the implicated people. Between all of us, we would have been able to clarify for her those errors and she would not have made those. It's all contained in the court papers before the court which were also not disputed by her.
Adv Mpofu: Yes. No, that's fine. I don't want us to go there again. I think we're done with that. You accept that she interacted with Mr Gordhan, the so-called most prominent person, correct?
Mr van Loggerenberg: Yes I said she interacted with the people I listed, she interacted with at least the first three, being Mr Gordhan, Mr Pillay and Mr Magashula.
Adv Mpofu: Yes. And this common cause that she did not interact with you, because she could not find, or her people could not find you. We accept that. So, I don't want to go back to that.
Mr van Loggerenberg: Three people associated with the unit.
Adv Mpofu: Yeah, well, she's the Public Protector. You know, her primary concern is, that's why I talked about primary people. For example, there's the act called the Executive Management Ethics Act, it only applies to Mr Gordhan, it wouldn't apply to you. That doesn't mean you are less important. It just doesn't apply to you. Do you accept that?
Mr van Loggerenberg: I think I've answered your question, as best as I could, Chair.
Adv Mpofu: No, that's fine. All right. The, and- I'm saying Mr van Loggerenberg, trust me, so that you can have a peaceful weekend. But the statement that you make. Let's say, in the ideal world, she could have spoken to- What did you say 33 people or?
Mr van Loggerenberg: Anyone in the unit, Chair. Anyone in the unit at the time.
Adv Mpofu: Yes. Your point is that if she was able to speak to all those people and was able to reach them-
Mr van Loggerenberg: Or some, those in the know.
Adv Mpofu: No, let's say all of them, let's make it even worse. If she could speak to all of them, then the report would have been qualitatively better. That's what you're saying.
Mr van Loggerenberg: She would not have made the errors that the court found to have been made. It's a simple thing, Chair, like calling Mr Manyike an employee of the unit. And then accepting everything he says of the unit as if he was a member of the unit. I mean, this letter that you've just put up is another example, there are many.
Adv Mpofu: Yes. No, that's fine. That's- don't worry about that, the courts have said she's human. And I think we believe the court. Like all of us, if she makes a mistake by calling Mr Manyike, whatever you're saying, that's not impeachable conduct. That's not the point I'm making. I'm saying your overall point, really, is that if she had spoken, and I'm exaggerating for effect, if she had spoken to all 33 people, the report would have been qualitatively better, which any right-minded person must accept. That's what you're saying.
Mr van Loggerenberg: It would have been without the errors contained in it.
Adv Mpofu: Yes, Mr van Loggerenberg. If it doesn't have those errors, would it be better or worse?
Mr van Loggerenberg: It would be better.
Adv Mpofu: Thank you. All right. So that-
Chairperson: Thank you, Adv Mpofu. Please throw your last-
Adv Mpofu: Last point. Okay, fine. I'll leave that topic, then. I think anyway, we've done justice to it. Thank you, Chair. Then, if we can then quickly go to the letter? Can it be put up? I think I gave the page number. Okay. Anyway, I'm just going to ask you about it. You may or may not be aware of this. But, and again, I don't want to have a long debate with you. If it looks like we're going to have a long debate, we will raise it with Mr Pillay, because he would, unlike you, he would have had proper warning of the letter. So, but I just want you to do that. This is a letter written on 18 February 2021, to Adv Mkhwebane from SARS, by the current Commissioner for SARS, Mr Kieswetter, regarding, just for your assistance, regarding the question of the equipment. You are aware of - [letter put on screen] - are you aware of this letter? Can you see it, Mr van Loggerenberg?
Mr van Loggerenberg: Yes, Chair, I can see it. I've never seen this before.
Adv Mpofu: You are not aware. Okay, good. Okay. In that case, I'll just give you, I'll ask you to just comment on one thing and, as I say, I'll converse on it with Mr Pillay. Okay, let me quickly read it, Chair. "Dear Adv Mkhwebane" It says Adv Mkhwebane, the Public Protector, there's even debatable about that. Okay, it's number one. "I trust you are well and that we have started 2021 on a positive and constructive note". Two. And this is the paragraph I want you to comment on, "I wish to inform you that SARS will be vacating its premises at River Walk Office Park on 31 May 2021. You may recall that the equipment that formed part of the Public Protector's investigation into the alleged so-called rogue unit, was securely stored in the basement of the said premises under supervision of the DPCI and SSA. SARS will be relocating that equipment to a new secure location under the supervision of the South African Police Service and the SSA, at a date to be determined". Three. "You are most welcome to send representatives to oversee the relocation. Should you decide to do so, it would be appreciated if my office could be alerted to make the necessary arrangements. If we don't hear from you to the contrary from your office prior to 15 May 2021, in this regard SARS will proceed with the relocation. Kind Regards". Very nice letter indeed. [Mr van Loggerenberg: Yes, Chairperson] But for the purposes of our interaction, I just want to alert you to two things. One is that there was some equipment, which was the clearly some equipment that belonged to the so-called rogue unit, which was securely stored at the basement of some building.
Mr van Loggerenberg: I disagree, Chair.
Adv Mpofu: Well, okay. Let me read this again. "You may recall that the equipment that formed part of the Public Protector's investigation", excuse me, "into the alleged so-called rogue unit, was securely stored in the basement of the said premises, under the supervision of DPCI and SSA". Is Mr Kieswetter lying here?
Mr van Loggerenberg: No, Chair, he's referring to the equipment that is contained in the photographs in the Rule 53 record of the review application, and that equipment's got nothing to do with the unit that was investigated. In fact, it's the equipment that is listed in-
Adv Mpofu: The KPMG report?
Mr van Loggerenberg: No, in paragraph 198 of the judgement, the three sets of equipment.
Adv Mpofu: Yes, Mr van Loggerenberg, please, you're going to make a war between me and the Chairperson. I'm saying- let's say I accept everything you're saying. But I'm saying you cannot say that the, except for the part where you say that it has nothing to do with the unit. Because that can only be true if Mr Kieswetter is making it up. He says, "you may recall that the equipment that formed part of the Public Protector's investigation into the alleged so-called rogue unit was securely stored in the basement of the said premises, under supervision of DPCI", whether that was a teaspoon or surveillance, whatever I don't-
Mr van Loggerenberg: Chair, I understand exactly. I think Mr Mpofu is not understanding me. I accept that equipment was kept in secure storage in the basement at River Walk Offices, under the supervision of the DPCI and the State Security Agency. I accept that. It dates back to February 2015. [Adv Mpofu: All right. Thank you] But what I don't accept is the second part of what Mr Mpofu is putting to me, Chairperson, which is that this is the equipment that belonged to the rogue unit. It did not. None of the people in the High-Risk Investigation Unit have ever seen that equipment in their entire life, let alone use it.
Adv Mpofu: Yes. But then that's not a criticism of Mr Mpofu, that's what I'm saying, then that's a criticism of Mr Kieswetter. Because it's he who says this in the letter.
Mr van Loggerenberg: No, I read it completely different, but I don't think it's going to advance anything, Chair. I read. I read it- [Adv Mpofu and Mr van Loggerenberg talking over each other]
Chairperson: Enough. Okay, thank you.
Mr Mileham: I'd like to hear what Mr van Loggerenberg has to say here. I'd like to hear his complete answer, if I may.
Chairperson: Why do you disturb the chair?
Adv Mpofu: Seriously.
Mr Mileham: Sorry, Chair, because Adv Mpofu was not letting Mr van Loggerenberg finish his answer. I'd really like to hear
Chairperson: Please, please, please stop. I was on the platform as a Chairperson. And you don't know what I was doing. Because when I started this session, I made an announcement. You were not here. Please. I want you to wrap up now, Adv Mpofu. I've given a few minutes, I'm beyond that. Thank you.
Adv Mpofu: Chair, you know that I'm- you can see that I'm trying-
Chairperson: Yes, please.
Adv Mpofu: -to assist you. But, Chair, I do need your protection. I cannot be abused.
Chairperson: I've already attended to it.
Adv Mpofu: All right, so yes. Sorry, Mr van Loggerenberg. I was not interrupting you to be rude. I'm simply trying to move with the ruling of the Chair, that we must try and give the Members an opportunity. I've jammed a whole lot of things here. And I'm at the same time trying to avoid having to recall you, Mr van Loggerenberg. So, I'm really trying to assist the process. The- I've now lost my train of thought. I was saying Mr van Loggerenberg, that I'm making a simple proposition. And to be fair, you've answered it, that you read it differently. That then will be a metaphor argument. But, for the record, the only point I was making to you is that it is not me, because you're saying you disagree with Mr Mpofu. I'm reading to you, it's signed not Mr Mpofu, here, it's signed Edward Kieswetter. And it says he says who described it as the equipment that formed part of the Public Protector's investigation into the alleged so-called rogue unit. Not me. As long as we're clear on that.
Mr van Loggerenberg: Yes, it's the very same equipment listed in Report 36 of 2019/20.
Adv Mpofu: All right, I give up.
Chairperson: Thank you, Adv Mpofu. I think that's where we're stopping.
Adv Mpofu: Well, I reserve my right to recall the witness if we have to come to that. And again, as I say, just for your comfort Chair, I will do my best, if there are topics that I haven't covered, to cover them with Mr Pillay, because they basically deal with the same thing, so that we avoid having to call Mr van Loggerenberg. But I'm reserving my right. Thank you.
Committee questions to Mr van Loggerenberg
Mr V Zungula (ATM) asked how much was spent in procuring the so-called spying equipment, hoping Mr van Loggerenberg would know what he was referring to. In the annual performance plan, had he disclosed the nature of the equipment, in the sense that this expenditure had been openly disclosed to Treasury? Had Treasury knowingly authorised the budget? Which SARS regulation had given authority for the purchase of the so-called spying equipment? Was he aware of the engagements between SARS and the SSA on sovereign surveillance issues? Why had this engagement not resulted in SSA cooperating with SARS, in the manner proposed by SARS?
Mr van Loggerenberg asked if the last question related to events occurring in 2007, which Mr Zungula confirmed.
Mr van Loggerenberg replied that in his time at SARS, he had never participated in the acquisition of spying equipment for any of the units that he managed. So, the answer would be R0. All equipment of any unit that he had ever managed, participated in, or worked with, had had to account for everything, not just during the planning phase, but during the internal audit and Auditor-General of South Africa asset audit. So, every item assigned to a unit/component/division needed to be bar-coded and reflected on an asset register. He did not know which SARS it pertained to, as he had never had to make an application of that kind.
He was aware of engagements between SARS and the SSA, which was not yet known as that yet. These engagements did not deal with surveillance issues, per se, but was more of a case of having a dedicated ability within the NIA to assist SARS at that point in time, in dealing with the illicit economy, in ways in which SARS was not able to. There had been a “change of guard” around the same time. There were still hopes that it would eventually happen, and he still believed it ought to have, but for some reason, it did not. This could be because there had been a change of ministers and the director-general.
Ms D Dlakude (ANC) asked Mr van Loggerenberg about paragraph 5 of his affidavit. He had been requested by the evidence leader, Adv Bawa, to elaborate on what he had said on paragraph 5. While he was doing so, he had indicated that from 2009-2014, the so-called rogue unit had been under attack. People had been bullied and fired during this time. She asked who had been responsible for that. Had it been internal people, their bosses, or had it come from outside?
Yesterday, while he was being questioned, he also mentioned that he had been responsible for five units, including the so-called rogue unit. Had the other four units been subjected to the same treatment as the so-called rogue unit? If not, what were the reasons for that?
The IGI Report and the former Inspector-General of Intelligence, Dr Dintwe, had been continuously mentioned throughout the cross examination. Had the IGI Report been compiled by former IGI Dr Dintwe? Had the IGI opposed the court application made by Mr van Loggerenberg and others? If not, what were the reasons for that? Had the IGI investigated, as per the Sikhakhane Report?
Mr van Loggerenberg replied that in paragraph 5 of his affidavit he had not said that the unit had come under attack. He had said that the division of SARS responsible for law enforcement had come under attack, and increasingly so, in those years. These attacks had come from multiple sides, predominately from those people and companies associated with the business entities that had been under investigation, or in the process of prosecution, or under order, by the respective components within the law enforcement division in SARS. He had also listed, in some instances, that as these attacks had increased, it had begun to include certain individuals within law enforcement, the state intelligence agencies, organised crime groups, etc. In some cases, these relationships were symbiotic. Ultimately, some of the attacks had been advanced by some people who had left SARS and their friends who had remained.
The four other units he had described in quite some detail in his affidavits that he had submitted to the Commission. None had been treated in the same way as “this particular small little unit”. He could not explain why this had been the case. He speculated that it had had something to do with the 81 investigations being conducted around that period.
The IGI Report that had been discussed during evidence, had been signed off by the IGI that had preceded Dr Dintwe, Adv Faith Radebe, not Dr Dintwe.
In his application to review and set aside that report, as indicated in the annexure that had been provided to the Committee, under Case Number 91160 of 2019, both the IGI and the Minister of State Security, had initially opposed his application, by filing notices of intention to oppose. They had failed to provide the Rule 53 record, even after he had given them additional time to do so. He had then filed his final affidavit and had wanted to place the matter on the court roll. At that point, their attorneys had contacted him. What had resulted from that was the consent order, as had been provided to the Committee.
He did not know if the Inspector-General had investigated what was in the Sikhakhane Report, as he had never seen the Rule 53 record of that process. The IGI Report of 2014 had been concluded prior to the conclusion of the Sikhakhane Report, by about five days, if he was not mistaken. The Sikhakhane Report was dated 5 November, while the IGI Report was dated 31 October 2014.
Ms J Mananiso (ANC) commented on Mr van Loggerenberg's affidavit, hoping that he had come before the Committee based on what he had indicated in paragraph 4 of his affidavit. She had three questions for him, based on his affidavit.
- In paragraph 7.6, he had stated that adverse findings had been made against Adv Mkhwebane in her capacity as the Public Protector. She asked him to name one or two of these findings.
- In paragraph 7.11, he had indicated to the House that he was a whistleblower. What could have motivated him to be the whistleblower in this particular moment?
- In paragraph 7.12.4, how would he classify his working relationship with the PP? One could find that he did not have a good relationship with the PP. How would he classify her leadership?
Mr van Loggerenberg gave examples of adverse findings: Case Numbers 48521 of 2019 and 36099 of 2019. On what motivated him to be a whistleblower, he said that he had resigned from SARS in 2015, and he would not rest until justice was served for his colleagues who had been left in “a terrible state of trauma”, and the truth about the good work that was done came to light. He recounted how his colleagues had been under siege and publicly humiliated. This had remained his primary motivation, which had been detailed in paragraph 3 of his affidavit to the Committee.
He had no relationship with the Public Protector, or the Office of the Public Protector whatsoever. He had no view on the leadership of Adv Mkhwebane as the Public Protector, because he simply did not know and had never interacted with her.
In response to Mr Herron asking if he could pose questions on directive 5.9 to Adv Mkhwebane, or if he should do that later, the Chairperson asked if he could save it for after.
Mr Herron acknowledged that his first question had been partially covered, but asked Mr van Loggerenberg about the role of a whistleblower, which he had claimed from August 2016. Had he lodged a complaint, as has been contemplated, in terms of the Public Protector Act, asking the incumbent PP at the time to investigate a specific complaint that he had? What had been the nature of that complaint?
Mr Herron did not really understand what a whistleblower who goes to the Public Protector was. From his understanding of the legislation and from his own use of the Public Protectors’ Office, one started the process by lodging a complaint. Had Mr van Loggerenberg lodged a complaint that he had wanted investigated by the Public Protector and what was it?
On the evidence on lawful surveillance, Mr van Loggerenberg had mentioned the unit conducting lawful surveillance, which had occasionally involved staking out robberies and acting when those robberies related to tax matters. He asked if Mr van Loggerenberg could explain this, as he was not sure what this entailed. Where would the unit have received the information on what robbery would be taking place? He did not understand that evidence and what the unit was actually doing, concerning lawful surveillance.
In Mr van Loggerenberg’s affidavit, in the attachment, his attorneys at that time, Webber Wentzel, requested an apology, and threatened to pursue suing for defamation if the apology was not made, along with a withdrawal of comments made on the rogue unit. This related to the YouTube video in the main evidence. Seanego Attorneys had written back to say that they would not be issuing an apology. Had he pursued litigation against the Public Protector for defamation? If not, why not?
Mr van Loggerenberg replied that he had not lodged a complaint, in the manner in which Mr Herron described in 2016 with the Public Protector. He had approached the Public Protector because, by that time, he had been aware that the Public Protector was still conducting an investigation into state capture. What he had hoped to do, was to provide the Office of the Public Protector with additional information that he had personal knowledge of about SARS and related events, which he had hoped would have been included in that state capture investigation.
On lawful surveillance, he had provided an example of one of the state warehouses. SARS oversaw multiple warehouses throughout the country, in which high-value seized/forfeited goods are kept which was part of the statutory duty of SARS. The example he mentioned was only one investigation that SARS had worked on. SARS had worked closely with the SAPS on that case, so it was not the unit that had responded to the robbery, but police officials.
Someone had provided information to SARS via the suspicious activity report system that had existed at the time. That information led to the identification of someone who was able to provide additional information. The purpose was to place the people around the state warehouse for that period, in the event that the information provided proved to be true. It had proved to be true. Then the police arrested six people, who had been trying to break into the premises and steal high-value goods. Legal advice had been provided to SARS on this. This was the kind of surveillance that he had been referring to.
On the YouTube matter, he had wanted to pursue the legal matter against the Public Protector’s Office. The report had been released shortly thereafter, which had “besieged” him. At the time, his attorneys were acting pro bono, and he would have had to pay to pursue the matter. He did not have the resources at the time to do so and had also been “besieged” by events in his personal life.
Ms M Sukers (ACDP) thanked Mr van Loggerenberg for his courage in appearing before the Committee and in putting his testimony before them, especially in light of his physical discomfort. She apologised for his having to explain his medical condition here to the Committee and the rest of South Africa listening. She commended him for his courage to speak on his medical condition and on behalf of other people that were similarly afflicted.
She had three questions for Mr van Loggerenberg. Could he describe to the Committee the work of the high-risk unit, and why it was referred to as the high-risk unit? What were the risks, in his view? What was the value of this unit to SARS?
She noted that he had expressed concern about the impact on the staff of the high-risk unit. Could he reflect, to the Committee, on the personal cost to himself and his staff? What had it cost him personally, financially, and the impact on his career and the rest of his team, since the investigation into him and the unit?
Mr van Loggerenberg thanked Ms Sukers for her kind words.
On describing the unit, he said that it was intended to conduct financial and criminal investigations and audits that SARS was conducting, focusing on sectors within the illicit economy in the country in which ordinary auditors and investigators were uncomfortable to work in due to “the threat to life and limb” and fear. He recalled how the unions had wanted SARS to pay those in the unit ‘danger pay’ and provide bulletproof vests and bulletproof vehicles, among other things, at the time, which would not have been affordable. At the same time, the demand on SARS to assist other law enforcement agencies and intelligence agencies to address crime and organised crime had increased tremendously. So, they had been caught in a situation where people had planned to bomb his office, for instance, to get rid of evidence. He recalled that around that time one of the investigators had been shot in his driveway and another investigator had been murdered in his driveway. As SARS became more effective in addressing these “hardcore organised crimes”, it became harder for the criminals to bribe or threaten their way out, so the risk increased significantly. The benefit was obvious, as it enabled them to use a small, more precise, investigative capacity, to do certain things that were considered to be risky. At the same time, it also enabled them to apply what they termed, from a strategy perspective, the ‘width, depth and leverage strategy’, which dedicated resources to focus on certain matters, regardless of the time it took or the challenges that were faced. Lastly, it was a support unit that assisted the law enforcement agencies and intelligence agencies upon their request, once it was approved.
On the unit’s value to SARS, he said that one should reflect on the figures. It was a unit of 26 people in year one and by the end of year two, they were down to seven. For the remainder of the period, there were only six people, that were responsible for possibly the largest single seizure of illicit tobacco in the history of all customs and tax authorities in the world to this day.
They worked how most people worked during lockdown. They had hot desks, initially, and they were not required to come into the office every single day to sit in the office. They were field workers. The tasks they were given were divided into three categories of investigations. One focused on sectors within the illicit economy that were identified in the strategy and high risk. Examples would be illicit drugs, abalone, clothing, textiles. Those investigations were categorised as Type A investigations and focused on giving SARS a sense of how big the problem was. A Type B investigation/project was subject specific. That was where they were investigating a specific person. In the court papers, he had made reference to a mafia boss, who had since been convicted and was serving time in prison. A Type C project was to help someone do something very quickly. They functioned as a support unit for the four other units which were the bigger, more equipped and more sophisticated investigative units,
On the impact on the staff and the cost, he said that he really did not have words to describe receiving a message or phone call at midnight that a spouse had attempted suicide and the other spouse was not sure whether they should contact the employer because they did not trust them. He detailed another scenario, where two loving parents were at each other, with a small child sitting in the room in the corner, crying, because of a newspaper article about the unit having run a brothel, and he had to mediate. However, he was questioned on why a big newspaper would print the story if it was not true, and why SARS would keep quiet if it was false. He also saw families “spilt up completely”. He could not even begin to describe the effects on those children in those families, and friends, and monetary costs. There are direct costs, of legal costs and so on. Even these three days of hearings had cost him money. Everyone else who was participating in this process was getting paid, but he was sitting there at his own cost. He had responsibilities, which is why he had to leave at 3pm. It would be worth it to look at the cost in a broader sense, not just in this type of committee. What were the costs of people that had suffered as a result of state capture, not just the whistleblowers, but also other individuals and their families? Because the families and the children are the unheard, unknown, unthought-of people.
The Chairperson acknowledged Mr van Loggerenberg's time constraints. Mr van Loggerenberg said he could squeeze in a few more questions from members.
Mr K Mileham (DA) asked Mr van Loggerenberg if he was aware of the Nugent Commission Report? What were its findings on the various issues raised by the Public Protector in her report? When had it been issued? Had the findings been taken into account by the Public Protector? Were the Sikhakhane, KPMG, OIGI Reports or the Groen Panel press statement of evidentiary value in determining the legality, or otherwise, of the SARS unit under investigation? Had any of those documents been allowed to stand and be challenged, without being discredited, disavowed or set aside? Was he aware of any deaths or poisoning caused by the operations of his SARS units? Was he aware of physical harm caused to any person by his units or their members or their actions?
Mr van Loggerenberg replied that he was aware of the Nugent Commission Report. There were in fact two reports dated December 2018 and January 2019. As far as he knew, the Nugent Report had been given to the Public Protector, on what was stated about the unit. He thought that the Public Protector had not necessarily ascribed it too much value.
From his reading of the Nugent Commission Report, Judge Nugent, who had chaired that commission, had attempted to contact Mr Sikhakhane to understand why he had made the finding that the unit was unlawfully established, and what his rationale was, but this did not lead anywhere. It was not all that clear in the report but it seemed there was correspondence but no meaningful response.
The Sikhakhane Report, the KPMG Report, the Kanyane Report, the Groen press statement and the IGI Report have no evidentiary value whatsoever, for various reasons. The Sikhakhane Report because of its status. It merely said, here are allegations, please investigate. Nobody had testified on oath, except me. I had been the only person to submit evidence on oath, which was not reflected in that report whatsoever. The KPMG Report had a massive disclaimer, specifically prohibiting the document from being used as evidence. Aside from the fact that the Groen statement was recanted, no investigation had been done. It was not evidence in the true sense. And then lastly, the IGI Report, it was as if it had never existed, it was in some void of inertia.
Was he aware of any deaths or physical harm or anything like that, caused by people that he managed in his time at the SARS? In a general sense, absolutely no. He had made reference to one instance of the person who had been in possession of illegal firearms and ammunition and rhino poaching, but it was not in the context of that person’s work. It had actually happened when said person had been on leave. In that case, Mr van Loggerenberg had dealt with it. A disciplinary had been held and the person had taken the matter to the CCMA. Ultimately, he had been dismissed. The docket had disappeared with the police and ultimately, he was never prosecuted. But that was not something Mr van Loggerenberg had had any control over.
Ms B Van Minnen (DA) had two questions for Mr van Loggerenberg. She wanted to get back to a golden thread that ran through his affidavit and the crux of why they were actually there. Was she correct in understanding that once the report had come out, he was very surprised to find that despite his whistleblowing in 2016 and the emails with information that he provided, in fact, none of that information had been used in the subsequent report and nobody from the unit had in fact been interviewed in pursuance of that report? Was she correct in understanding that?
Mr van Loggerenberg said that she was correct.
Ms B Van Minnen (DA) asked if he had been surprised by how this had subsequently turned out, by essentially what appears to be some kind of law fare being waged. Had he been surprised by this sort of ongoing campaign?
Mr van Loggerenberg answered no.
Dr M Gondwe (DA) said in paragraph 7.7 of his affidavit, Mr van Loggerenberg had stated that the unit was known as the Special Projects Unit, the National Research Group, and the High-Risk Investigations Unit. Why had the unit had a number of names over the seven years of its existence? Was it because its purpose or functions changed over time? Why, in his opinion, had the unit eventually been disbanded in 2014? She had the impression that it had been gradually disbanded, because it started off with a staff of 26, according to him, and then, by the time it had been disbanded in 2014, it had only six members. What had become of those members that used to be part of that unit?
He had stated in his oral evidence that the unit had been consistently under attack as a result of the nature of its work. She asked Mr van Loggerenberg to elaborate on this, and if he could link it to the 88 investigations the unit had conducted, mentioned during his oral evidence. Were they in investigating high profile people? She asked for detail on why the unit possibly could have been consistently under attack.
In oral evidence before the Committee, he had stated that during court proceedings, it had become apparent to him that Adv Mkhwebane had had a classified version of the IGI Report in her possession. Could he provide clarity if the Public Protector’s possession of the report meant that it had been illegally obtained? The DG of the SSA would have been the only one who declassified the report. Was he surprised that the Public Protector was in possession of the classified report, when it had not been declassified by the SSA DG or the Minister? Why did he think she went through the trouble of having the meeting with Dr Dintwe and the legal adviser of the OIGI at the time? Dr Gondwe was not sure if Adv J Govender was still the legal adviser at that time.
Paragraph 7.8 of his affidavit stated that prior to the publication of the report in 2019, Adv Mkhwebane had referred to the unit as a rogue unit. She asked why he thought this was the case. Why did he think she had held the view that the unit was rogue, prior to the release of the report in 2019? In other words, why had it been a fait accompli for her, even though she had not released the report?
Dr Gondwe recalled that Mr van Loggerenberg had made reference to a fake intelligence dossier, namely Project Snowman, in his oral evidence, that had been compiled by a SARS official who was dismissed for rhino poaching and illicit possession of firearms. He had also made reference to Project Broken Arrow. Could he explain the relationship between these two projects?
The Chairperson light-heartedly commented that this was almost a thesis of questions.
Mr van Loggerenberg said that he was really constrained on time, but that he wanted to be respectful to the process and the questions from Dr Gondwe.
On why the unit kept changing names, he said that it was because SARS was undergoing tremendous modernisation. So, the unit had actually refined its mandate. The mandate documents were in the court papers, they would say what the unit had been mandated to do, within the SARS legal and policy framework. As it refined, they had realised they had been moving away from something that they had thought was special to something that was more akin to research and high risk. There had been no particular reason for that.
It had been disbanded for reasons unknown to him. It had been disbanded on the instruction of Mr Tom Moyane, SARS Commissioner at the time. Some of the unit’s members had remained in the employ of SARS, and, by all accounts, appeared to be productive state civil servants. However, the bulk of members had left the institution. He knew that many members had left South Africa and were doing the same work they did for SARS, for other governments. He believed that they were “making good money” and doubted that they could be convinced to come back with their skillsets with their previous SARS salary.
It had not been just the unit that had come under attack. As he had stated earlier, it had actually been the division. The unit specifically came under attack from around 12 October 2014 onwards. This was when propaganda surrounding the unit began and where the term ‘rogue’ came from. He clarified that it was 81, not 88, investigations that the unit had conducted. He could only say, to the extent of what constituted public knowledge, that they had been looking at 180+ people from the SSA and their front companies, that the Committee had heard about yesterday in the recording between the IGI and the Public Protector, as one example. Some of them had been SARS’ enemies, they had known that SARS was closing in on them. The unit had also conducted investigations that had started to affect very influential people and politically connected people and politically exposed people, as well as very powerful and rich organised crime figures and groupings within the country. He thought that it was a combination of that.
He had learned today that Adv Mkhwebane had indeed been in possession of the classified IGI Report from at least 31 January 2019, illegally so, unlawfully so. Why did she try to have it declassified? He did not want to speak for Adv Mkhwebane. He thought that it would be unfair to her. Perhaps this entire question was a question to be posed to her, as he could not read her mind and he would not want to.
The connection between Broken Arrow and Snowman was that Project Broken Arrow appeared to have been “a session between people who had beef with some people” within SARS, like Minister Gordhan, or Mr Pillay and myself, or the institution itself. They had come together and had met at a coffee shop and had safe houses and phones that had not been registered in their names and laptops that had been provided by people who were being investigated by SARS. They had had all these different meetings and had begun to recruit people to compile ‘the file’, which had been intended to be given to the then President to cause havoc and create chaos at SARS. That was called Project Broken Arrow. This was known because some of those people had turned against their friends and had reported that this was occurring. Each time, they had been asked to put it in writing. A number of them had reported these things and those documents dated to that time. Subsequently, what had come out of this, was that the file that Project Broken Arrow had intended to create, was then the document known as Operation/Project Snowman. It had been first leaked to the media in 2009. Then, in early 2010, it had begun to reach other people who wanted to popularise this document.
On why Adv Mkhwebane had referred to the unit as a rogue unit before concluding the investigation, he had to conclude that she had already made up her mind that the unit had been rogue, for one reason or another. But again, it was perhaps better to pose that question to Adv Mkwhebane.
Mr B Nodada (DA) said that his questions might seem rhetorical, but he hoped Mr van Loggerenberg would answer them directly. He recalled that Mr van Loggerenberg’s complaint/course submission/affidavit to the Committee was around him wanting this Committee to consider that the Public Protector had failed to investigate without prejudice or bias, had not been fair in giving him a hearing, there had been quite a few errors in that particular investigation which had made recommendations or remedial actions, which had implicated him.
What were these errors that he had indicated represent prejudice, bias, and not providing him a fair hearing in coming to the conclusion that she had made? Mr Nodada thought it was important for Mr van Loggerenberg to give context to that, as he went as far saying that for him, it was not the merits on which he was being questioned about, but rather the process that had come to the conclusion of what he had been implicated on.
Had there been any court of law or any legal body that had determined what he, through common cause he had agreed upon with Adv Mpofu, is the unit that had been called various names? Had there been any lawful institutions in the country that he had approached, that had determined this unit to be rogue in any form? Or had conducted any illegal or unlawful work? And if that was the case, could he provide details?
There had been an indication that, according to the version that had been shared by the Public Protector’s representative, that Mr van Loggerenberg may not been able to be found by the investigators. Did he accept that there could have been alternatives that could have traced him as an implicated person in the investigation? And what were those available avenues that could have been used by the Public Protector to ensure that he was then provided a fair hearing or unbiased and unprejudiced opportunity to represent – what he had done subsequently in the courts?
Mr van Loggerenberg replied that he had highlighted all the errors in great detail in the affidavits served before court and the court had succinctly identified them. It would take very long for him to list them right now. But they ranged from issues around establishment of the unit, to how the unit had actually functioned, to the equipment which had been wrongly attributed to this unit. His point was that he believed that had he been heard, and had what he said been taken to heart, the report would have been very different to what was seen today, with any court or any institution of any kind that had made any determination that the unit was so-called rogue. Rather, what we had was the Sikhakhane Report, which had been rejected by SARS; the KPMG report, with all its problems; the IGI Report, which was treated as if it never existed; and the Groen statement. In essence, those were the primary formal processes. Apart from the IGI Report, all the other reports and statements emanated from within SARS.
On his not being able to be found, Mr van Loggerenberg had provided examples in his affidavit on how he could have been found. The most obvious would have been to contact his attorneys, with whom the Public Protector had been in contact with for three weeks prior to concluding the investigation. There were many other ways. She could have asked Mr Pillay or Mr Magashula or SARS. It had been quite widely published that, at that point in time, he was being charged and appearing before court, she could have asked the police, she could have asked the prosecuting authority. She could have made a plea in her YouTube statement issued in June to say that she had some questions for him and that she needed information from him. He could think of a myriad of ways in which it could have been done. The bank, for instance. She had indicated that she intended to investigate a bank account of his. The bank had his details; the bank could have called him up, because he was required to comply with his FICA updates periodically. So there were many, many ways for the PP to get in contact with him.
Mr B Maneli (ANC) said that his questions to the witness may feel like repetition. He thought that there was also an obligation on the Committee’s side, as it related to directives 3.1 and 3.2. He wanted it to be understood that the Committee was asking these questions to establish what they had been asked to establish, as it related to either misconduct or incompetence. He wanted it to be understood that the Committee was not a court, there were no judges. This was a place to share.
He wanted to understand if Mr van Loggerenberg had a reason to come before the Committee. In his affidavit, as Mr Maneli understood it, Mr van Loggerenberg had felt that he had not been given a fair hearing. Mr Maneli asked for clarity that Mr van Loggerenberg was not putting in a new grievance to be heard, as he had been vindicated by court judgements.
Mr Maneli said that he wanted to say this for the record, that was trying to confirm if the Public Protector had taken an oath in the recording [that was part of the evidence].
Was the point of the recording about the unlawfulness of the IGI Report or about the ethical standards used by the Public Protector to get that report? Or that the reports had been used as part of getting to the Public Protector's findings? Or were all applicable?
Mr van Loggerenberg answered the first question by saying that he had responded to an invitation by this Committee, which he had imagined came from all of the members of this Committee. His motivation he had expressed to the extent he was capable of in his affidavit. One has nowhere to go if the Public Protector acted out of the ordinary or improperly or criminally, but to Parliament, because the Public Protector was accountable it. If it was assumed for a moment, and accepted for a moment, that hypothetically, what he was saying was true, then what had occurred was indeed criminal and was indeed contrary to the Public Protector procedures and had affected the rights of individuals. And these abuses had been perpetrated by the Public Protector.
If it was assumed for a moment that that was true, then where could we, as South Africans go to ensure that it would not happen again? Whatever the outcome of this Committee may be, he hoped that this was part of our broader constitutional democratic growth, because we were a very young nation. They formed part of those generations that needed to contribute to development, so that those who came after them lived in a better place. And so how did they help build and strengthen these institutions and ensure they were tamper proof or shatterproof or more robust in the way in which they go about their business?
On the recording, the short answer was that it was all the points Mr Maneli had said, and, of course, more as they had learned today. Which was that effectively the Public Protector had used the document in her illegal possession, to issue a report and make findings against people that had had certain consequences, and now they had heard that she had had it and that she had never given that document to anybody at all, to respond to, or look at, or anything at all. So it was all of the items that Mr Maneli had mentioned.
There was a bit of back-and-forth between the Chairperson and Mr van Loggerenberg on continuing with questions, until Mr Loggerenberg decisively stated that he needed to leave, after staying for an extra 50 minutes.
The Chairperson apologised to those who had not been able to ask their questions. He thanked Mr van Loggerenberg for spending the last three days at the hearings.
Ms O Maotwe (EFF) asked what would happen to the unasked questions
Adv Bawa said they could submit their questions in writing.
Adv Mpofu said that his team would exercise their right to recall the witness if required, then the outstanding questions could be asked in person.
Mr van Loggerenberg thanked the Chairperson, Committee members and the legal representatives, including Adv Mpofu and the evidence leader, Adv Bawa. He understood cross examination was a robust process. He apologised again if had offended Adv Mpofu. He wished everyone involved in the process the best and said that he knew it was something very new to South Africa’s democracy.
Adv Mpofu said he had no hard feelings, apologised if he had offended Mr van Loggerenberg, and thanked him.
Committee questions to Public Protector
The Chairperson said they would proceed by swearing in Adv Mkhwebane under oath. Adv Mpofu was a bit confused as to the proceedings, asking what was happening now. The Chairperson asked him to clarify what he meant by that and Adv Mpofu asked “what is actually happening?”. This was clarified by the Chairperson, who repeated what he had stated two minutes prior. Adv Mpofu appeared reluctant about swearing the PP under oath, saying it was up to the Chair.
Ms Fatima Ebrahim, Parliamentary Legal Services, swore in the Public Protector, Adv Busisiwe Mkhwebane, under oath.
Mr Maneli said that he had wanted it on record, for further questioning later, that the Public Protector agreed that the voice in the recording is actually hers – because that would affect everything else they would ask about the report.
Adv Mkhwebane confirmed that the meeting took place in court and that the recording was available.
Mr Herron sought clarity on the position of the Inspector-General Report, or the intelligence report, the classified document, which he understood to be a criminal offence. He recalled that Adv Mkhwebane had said so in the recording, where she said she should not have had the report, and it was a criminal offence to have the report.
Given that she had some intelligence experience, what would an ordinary South African be expected to do if they received an anonymously dropped-off intelligence report that is classified? What was the obligation, if someone wanted to drop a report at his office? He did not think that he was special. But as a Member of Parliament, what was his obligation with regards to that report?
As the Public Protector, what was the obligation to do with that report? Did the Public Protector have an extra duty of care on receiving an anonymous classified report? Or did the Public Protector have the same obligation an ordinary South African had, on handling receiving a report that one did not ask for?
Had the Public Protector done what was required of the law? If the PP received a report, anonymously, which was classified, and it was now illegally in their possession. Was there any reason the Public Protector could not disclose in Report 36 of 2019/20 that she had received a report anonymously, that the possession of it was illegal and this is what she did with it? There appeared to be an omission that this report was actually in her possession. And if there had been no reason for her not to do that, why was that not in the report?
Adv Mkhwebane requested that she would respond in writing, on the advice of her legal team.
Mr A Shaik-Emam (NFP) wanted clarity on sending Mr van Loggerenberg questions in writing. Would he still receive the same privileges and protections that he would when appearing before the Committee?
Mr Shaik-Emam recalled Mr van Loggerenberg saying that he had never been given an opportunity to be heard, despite his requests. The PP had had access to 20 different sources but had made absolutely no attempt to even question him. Did she believe that if she had done that they may not have been there today, which might have resulted in them saving millions of taxpayers’ Rands?
On the so-called rogue unit, would she agree that while it might not have been set up lawfully, there was no law in the country that said it was unlawful for a structure like SARS to set up this unit if they had reasonable grounds to believe that there was illicit trade…an illicit economy with great risk to the country? Would she agree, then, that while it had not been lawfully structured, it was not unlawful or illegal for a unit like SARS, if they had wanted to put the interest of the country first?
Lastly, besides not making time to listen to Mr van Loggerenberg, who had been implicated, his name was in the report, he had been at the forefront of this unit, when the whistleblowers had come forward, and she had had access to the report. Did she at any time give thought to the fact that, indeed, there must have been something wrong in the country, particularly on the issue of state capture? And that in the interest of the country and the public, who had trust and confidence in the Office of the Public Protector, that she needed to thoroughly investigate this and ensure that she did justice to her office by protecting the country?
Adv Mkhwebane requested that she respond in writing, on the advice of her legal team.
Mr Mileham wanted to draw the Chair’s attention to Directive 5.9, which said that a member of the Committee, either directly or through the evidence leaders, may ask Adv Mkhwebane to directly respond to certain questions posed orally or in writing, including factual disputes that may arise even if she was not at that time giving evidence. Adv Mkhwebane needed to respond to such questions immediately, unless she requested a reasonable period of time within which to submit a response. He was not aware that such a request had been made. She had said that she wanted to respond in writing. But the directive was that she needed to respond immediately, unless she requested a reasonable timeframe. The Committee had not been given a timeframe and it had not been requested that she be exempted from the requirement to respond immediately. He asked if he could get a ruling from the Chairperson on this.
The Chairperson said that he was going to do that at the end. But would hear her request first.
Adv Mpofu pleaded with the Committee to give him an opportunity to respond in writing. And for the Committee to indicate within how many days he was expected to respond.
Mr Mileham said he did not understand why Adv Mkhwebane was requesting to respond in writing, as it was not as if she could not answer the questions. She could look it up, if required.
Ms Maotwe interrupted to say that the Chairperson had already made a ruling, but the Chairperson told her that there was another member on the platform. The Chairperson shut down Mr Mileham’s continued argument on this.
Mr Mileham asked if Adv Mkhwebane’s attorneys were her private attorneys, or if they were the attorneys of the institution of the Public Protector. He said this was a simple yes or no answer.
Adv Mkhwebane requested that she respond in writing, on the advice of her legal team.
A disagreement between Mr Mileham, Adv Mpofu and the Chairperson ensued on whether Adv Mkhwebane had to provide an answer now.
Mr Mileham said that Adv Mpofu had suggested that Adv Mkhwebane and the institution were the same at the 12 July hearing.
Why would Seanego Attorneys respond to correspondence from Mr van Loggerenberg? His question had been premised on the fact that Seanego Attorneys were private attorneys, and not the attorneys of the institution of the Public Protector, which was why he had asked a very simple question and tried to get clarity on that. Why had the Public Protector not engaged Mr van Loggerenberg before issuing her report? He knew that other people had asked similar questions, but he wanted to know why she had not.
There had been a suggestion from Adv Mpofu that Mr van Loggerenberg was not an implicated person in terms of PP Report 36. Did Adv Mkhwebane agree with that? If a person was implicated, were they not entitled to have their side of the story heard? Why did she not do so? Was it not normal practice when doing these investigations and serving legal documents to serve formal documents to a person's attorneys? In this particular instance, why had she not done so?
On the YouTube video that they had heard yesterday, Adv Mkhwebane had said that she was not targeting anyone. Those were the words she had used. She was not targeting anyone. How did she reconcile that with Adv Mpofu’s questions to Mr van Loggerenberg that Minister Gordhan was “the primary target of the investigation”?
Was it the suggestion of Adv Mkhwebane and her team that the mere existence of this unit at SARS made it unlawful? Again, how did she reconcile that with the various court decisions on this?
Adv Mpofu had made much that out there South Africans thought about a ‘rogue unit’. Did it matter what people out there thought? Was it not a matter of fact and a matter of law on whether or not there was such a unit? Those facts had been determined by various courts of the land.
Lastly, to follow on from what Mr Herron had asked on the IGI Report. What had she done with the copy that she had claimed to have found in her reception? How could she rely on a report that came into her possession unlawfully? And lastly, how could she claim to have been impartial or unbiased in her report, if she had not afforded the persons implicated by that IGI Report an opportunity to review it?
Ms Sukers asked if Adv Mkhwebane believed that she should take responsibility for the omissions and actions of her staff.
Mr Ebrahim had mentioned on Monday the need for the Public Protector to be accessible and that this was an active role. Mr van Loggerenberg was what she thought, and she had Googled him yesterday, what they could call a public figure. Adv Mkhwebane also had his lawyers’ details. What more should she or her office have done to ensure that his rights had been upheld and that he had the opportunity to be heard?
Adv Mkhwebane had stated in public that the special investigation unit or the high-risk unit was a ‘rogue unit’ and had indicated that people had died prior to the conclusion of her investigation. When his lawyers asked her not to do this, she had stated through her lawyers that she would not do so and that he should sue her. Given that only very wealthy individuals can afford lawyers, and that members of the public cannot afford public representation to defend themselves in that way, and that she had the almost-unlimited resources of the state at her disposal, did she think that this was fair and that it granted access to such an individual?
Adv Mkhwebane requested that she respond in writing, on the advice of her legal team.
Mr Nodada said that he had been largely covered by Mr Mileham. He had two specific questions for Adv Mkhwebane. They had just had a witness, Mr van Loggerenberg, for the past two days. The premise of his contribution to this Committee was that she had failed to conduct the investigation without prejudice and that she was biased in her investigation.
Mr Nodada wanted to submit, through the evidence leader or the Chair, a list of those errors that are alleged that the Public Protector had made in the process and for her to respond individually to each error, since she would respond in writing, unless she was able to respond here physically. The second question related to locating Mr van Loggerenberg and had two parts. One part was the assumption that if his surname was misspelled, there would be a challenge in locating him. The second was that there may have been investigative officers given the responsibility to find Mr van Loggerenberg. If so, was there proof that these particular investigators were given this responsibility? Did they then do so and report back that they were unable to find him? Could Adv Mkhwebane indicate what mechanisms were used in her investigative process to ensure they located individuals implicated in what she is investigating as a Public Protector? What mechanisms were used to ensure people were given a fair chance to represent themselves in an investigation.
Adv Mkhwebane requested that she respond in writing, on the advice of her legal team.
Dr Gondwe had three questions on the meeting that Adv Mkhwebane had had with the Office of Inspector-General of Intelligence. Was the OIGI aware of the fact that she was recording the meeting at the time? Adv Mkhwebane had attached a copy of the transcript of the meeting with the OIGI to the court papers, on the 2020 court action. Had the OIGI been aware that she had attached the transcript to those court papers?
The Promotion of Access to Information Act (PAIA) and the Intelligence Services Act made it unlawful for anyone to have classified documents in their possession. If she was in possession, and through her counsel, she had indicated that she was in possession of the classified OIGI Report, had she taken steps to inform the relevant authorities that she was in possession of this report, which was classified in its nature, because it had not been declassified by the DG or by the Minister of State Security at the time?
Dr Gondwe said that Adv Mkhwebane had indicated in the 2019 Report about the unit that she had it on good authority that there had been a covert unit in SARS, utilising covert and intrusive methods. She asked for an explanation of the authority on which she had based this finding. Was Adv Mkhwebane making this assertion on the basis of the classified OIGI Report?
Adv Mkhwebane requested that she respond in writing, on the advice of her legal team.
Ms Maotwe brought up that Mr Mileham was the husband of the complainant Ms Mazzone.
The Chairperson said that she was out of order and asked her to withdraw what she had just said. He asked for her to be removed from the virtual platform.
Mr Maneli clarified that he was referring to the Public Protector Report that had been issued. In its source documents used to get to the findings or the investigation itself, there was no mention of the IGI Report that had been received. Instead, it cited a letter from the Public Protector to the OIGI, as well as the response – not the actual OIGI Report. Was this on the basis that the report would have been a classified report? If that was the case, why was it used in the body of the report itself?
In the recording, a point had been made about the conclusiveness of the report. The words that had been used were “that to connect the dots, you will then still need to engage people in SARS”. He wanted to understand what had happened for those conclusions to be drawn. Was this report legalised later? Mr Herron had already raised this point, but was it then not disclosed that the report was not lawfully sourced? It was clear that Adv Mkhwebane had seen the report, as she had received the report, one way or another. This went back to what Mr Ebrahim said about standards.
Adv Mkhwebane again requested she would respond in writing, on the advice of her legal team
The Chairperson said that Adv Mkhwebane’s responses were expected within seven days, taking into account her other work.
Ms Sukers said that they were giving Adv Mkwhebane the opportunity, according to the directives, to provide her responses in writing. She asked if the witnesses still to appear before the Committee would have the same latitude and if that was fair.
Mr Malema said that Ms Sukers must learn to read
Ms Sukers said that it was about fairness not literacy.
The Chairperson asked her to please not respond to that.
Ms van Minnen said that Directive 5.9 stated that the Chairperson should determine a reasonable timeframe, and talks about ensuring that the Committee was able to properly fulfil its mandate and carry out its oversight function. In line with that and what Ms Sukers had said, they really needed to ensure that they were not allowing particular individuals more latitude than other individuals because the directives bound the entire Committee and they had to ensure this equality of treatment of all parties concerned.
The Chairperson said that there had been an intention to hear from Mr Pillay, but there had been no time, as there was a witness that had been subpoenaed for Monday 18 and Tuesday 19 July. After Tuesday 19 July there would be a pause until the next Wednesday 27 July 2022.
Mr Mileham asked if the Committee could not adjourn and spend time “ironing out” processes and procedures.
The Chairperson said that that this had been discussed earlier, when Mr Mileham had not been present, and that the Committee would meet alone next Wednesday 20 July.
Mr Malema interrupted to say that the Committee was not going to operate like this, “where people just get provoked time and again and then want to change the programme of this Committee”. The Chair had indicated that the Committee would have Monday and Tuesday with the Public Protector virtually and then have Wednesday to itself. People should not be provoked here by other things. And then they adopted the directives while working within the directives. And they were going to proceed as such. Husbands should not come here and get irritated by the proceedings.
The Chairperson asked Mr Malema to refrain from using that language. A day would be set aside for a Committee meeting.
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
King, Ms C
Luzipo, Mr S
Mahlaule, Mr MG
Malema, Mr J
Mananiso, Ms JS
Maneli, Mr BM
Maotwe, Ms OMC
Marawu, Ms TL
Mbhele, Mr ZN
Mgweba, Ms T
Mileham, Mr K
Mulder, Dr CP
Nkosi, Mr BS
Nodada, Mr BB
Nqola, Mr X
Peters, Ms ED
Shaik Emam, Mr AM
Siwela, Ms VS
Sukers, Ms ME
Tlhape, Ms ME
Tseke, Ms GK
Van Minnen, Ms BM
Zungula, Mr V
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