PP Inquiry day 6: Tebogo Kekana (Subpoenaed Witness)

Committee on Section 194 Enquiry

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

Video (Part 1)

Video (Part 2)

Motion initiating Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from Independent Panel furnished to the NA

NA Rules governing removal

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

The Section 194 Committee  sat for the sixth day of its hearings into Public Protector (PP), Adv Busisiwe Mkhwebane’s fitness to hold office. Members heard evidence from subpoenaed witness, Mr Tebogo Kholofelo Kekana. Mr Kekana had previously worked for the PP, in her private office, as a Senior Investigator.

In his testimony, Mr Kekana elaborated on the compilation of the information and the drafting of the Public Protector’s Bankorp-CIEX report. Mr Kekana indicated that after the provisional report of the Bankorp-CIEX matter had been finalised, the PP had requested that he accompany her to a meeting she had scheduled with high-ranking officials from the State Security Agency (SSA) on 3 May 2017. This meeting, he said, was attended by the then Minister of State Security, Mr David Mahlobo, then SSA Director-General, Mr Arthur Fraser and a senior SSA official, Mr James Ramabulana.

Mr Kekana said that two events had surprised him at the meeting. First, upon arrival at the meeting, he was informed that Adv Mkhwebane had engaged in a private discussion with Minister Mahlobo prior to the meeting. He found this to be odd, particularly because the PP had not done so in other investigations and for one to have a one-on-one meeting with an implicated party. The second was that when he had taken out his recorder and notepad to record the meeting’s events, the PP had instructed him to neither take notes nor record the meeting although the custom was to the contrary.

The Committee was informed that the PP had instructed Mr Kekana that the final report should also include a recommendation for the Constitution to be amended to allow for the nationalisation of the South African Reserve Bank (SARB) as per a note handed over at a second meeting with the SSA. This had not appeared in the preliminary report.

Mr Kekana testified that he was requested to meet with a senior human resources official in November 2017. During this meeting, he was informed that Adv Mkhwebane had relieved him of his duties, and would be transferring him to the Provincial Investigations and Integration Unit. Thereafter, in July 2019 he was placed on precautionary suspension until he was dismissed in September 2020.

The extended cross-examination attempted to contest Mr Kekana's testimony such as aspects of the 3 May 2017 meeting; his statement that he was a whistleblower and that he was instructed by the PP to add the report recommendation that SARB should be nationalised.

Meeting report

Adv Nazreen Bawa [evidence leader]: In the timeline, the evidence coming up relates to the CIEX report commissioned by the government in 1990, which alleged impropriety and irregularity in relation to certain transactions. In 2010, a complaint was lodged by Adv Paul Hoffman of the Institute for Accountability in Southern Africa. A provisional PP report was issued on 20 December 2016. The initial investigations were done by Adv Madonsela and then taken over by Adv Mkhwebane when she took office on 15 October 2016. The final report was issued on 19 June 2017 with a number of recommendations. An urgent application was brought to the High Court in August 2017 to challenge one component of the relief sought on the finding or recommendation in the report for the amendment of Section 224 of the Constitution dealing with the Reserve Bank. The South African Reserve Bank v Public Protector and Others judgment was handed in the Gauteng Division, Pretoria. The relief sought was not opposed by Adv Mkhwebane at the time and despite the non-opposition, the party, the applicants at the time, thought that it was a matter of importance. What the court did was that it considered the relief sought and made an order be reviewed and set aside – which you will see paragraph 7.2 of the remedial action instructing the Chairperson of the Portfolio Committee on Justice and Correctional Services to initiate the process to amend Section 224 of the Constitution, to alter the constitutional mandate of the Reserve Bank. The effect of this was that the Public Protector was ordered to pay the cost of the application up to and including the filing of an answering affidavit. Such costs include the cost of employing two counsel. In a number of these applications and judgments, to which I refer you, underlying the judgments are affidavits filed by the parties to the case, as well as affidavits filed by the Public Protector. I'm not taking you specifically to the affidavits of the Public Protector at this stage because it would be more appropriate to do so, when…if and when she comes and gives evidence.

In taking you through the judgments of Murphy J in this instance, he pointed out that one of the difficulties which arose in this matter was that the relief that was contained in the final report was not foreshadowed in the preliminary report. That nowhere in the preliminary report has the Public Protector disclosed that she was considering remedial action that would amend the primary object of the Reserve Bank, given the far reaching nature of the punitive remedial action. At paragraph 54 of the judgment [on the screen]: “Right now in the preliminary push, considering the remedial action that would amend the primary objects of the Reserve Bank, given the far reaching nature of the impugned remedial action; and the reasonably foreseeable material impact it would have on the Reserve Bank; and the stability of the financial sector, it was incumbent upon the Public Protector to have given notice to the Reserve Bank of this intended action, and to have called for comment on it. She amended the scope of the investigation and the remedial action without notice to any person likely to be affected”. It went on: “the Reserve Bank only received a copy of the press conference on 19 June 2017, where the final report was released. It was denied an opportunity to explain the importance of its mandate and to ensure price stability as an integral part of sustainable and balanced economic growth. In the result, the Public Protector’s announcement of the remedial action was insufficiently informed.” The court then, in paragraph 55 concludes that “the attempt to pass off the remedial action as a mere recommendation is disingenuous…”.

Chairperson: Just pause Adv Bawa. I see that your hand is up, Adv Mpofu?

Adv Dali Mpofu: Yes, Chair. I just wanted to inquire whether the document that was on the screen… is it done or has it just disappeared? It disappeared on our side so I wasn't sure whether it was because it's finished or there was a technical problem.

Chairperson: Okay.

Adv Mpofu: Thanks Chair.

Chairperson: Okay. Continue Adv Bawa.

Adv Bawa: Sorry. If you are on… I am not sure what document you are on but it is in Bundle A. It would be on page 89 of the judgment – if that helps. Okay, I'm told that even though I don't see it on the screen, those on Zoom do see it.

Adv Mpofu: No.

Adv Bawa: Are you not seeing it, Adv Mpofu?

Adv Mpofu: No. I saw it when I was talking to the Chair but now it came back again.

Chairperson: Ja, they have stopped sharing. Can you just flight it again? It is not showing here; it is only showing Adv Mpofu, with a big name.

Adv Mpofu: You mean just the big letters, not the big name.

Chairperson: Oh yes, big letters.

Adv Bawa: I am going to read it… Adv Mpofu, I’m on Bundle A page 89. You will be aware that in Bundle A, all the judgments are contained in it. I am on paragraph 55 of the judgment.

Adv Mpofu: Okay, thank you.

Adv Bawa: If you go up to paragraph 55… The screen is now showing paragraph 58.

Adv Mpofu: Ja, but should we manipulate ourselves, or should we leave it to the…

Adv Bawa: Well, if there is a technical problem, I will give you the reference because you do have these documents yourself.

Adv Mpofu: Thank you, Chair.

Adv Bawa: To make it easier for you, I'll read from the top again: "The attempt to pass off the remedial action as a mere recommendation is disingenuous. The language in which the remedial action is formulated is peremptory. The Public Protector’s somewhat unrepentant alignment with one side of the public debate, besides ignoring much of the criticism of the Speaker and the Governor, was censured by counsel as heedless of its likely impact. In the replying affidavit, the Governor is equally unsparing in his criticism. The explanation for the remedial action, he says, reveals the Public Protector’s lack of understanding of the ambit of the Reserve Bank’s powers. He states: “The Public Protector’s impugned remedial action had immediate and damaging consequences for the country. It is clear from her answering affidavit that she had no regard to the inevitable and serious impact of her Report before releasing it. The Report was reckless. The Public Protector‘s explanation for it is based on a clear lack of understanding of the Constitution. It perpetuates a fundamental misunderstanding of the Bank’s powers and functions.” "

The court then goes on in paragraph 57 to say: "The Public Protector’s superficial reasoning and erroneous findings on the issue, as appear in the final report and the answering affidavit, do not provide a rational basis for the remedial action and hence the criticisms of it are well-founded. The remedial action must be reviewed and set aside under section 6(2)(f)(ii) and section 6(2)(h) of PAJA." Now we will come back to the application of PAJA but Adv Mpofu touched on it that subsequently the courts have concluded it is the principle of legality and not PAJA that applies to the Public Protector’s decisions.

In the conclusion, the Court said: “In view of the various grounds upon which the remedial action can and must be set aside, there is no need to pronounce conclusively on the validity of all of the Governor’s many criticisms. Suffice it to say, the Public Protector’s explanation and begrudging concession of unconstitutionality offer no defence to the charges of illegality, irrationality and procedural unfairness. It is disconcerting that she seems impervious to the criticism, or otherwise disinclined to address it. This court is not unsympathetic to the difficult task of the Public Protector. She is expected to deal with at times complex and challenging matters with limited resources and without the benefit of rigorous forensic techniques. It is easy to err in informal alternative dispute resolution processes. However, there is no getting away from the fact that the Public Protector is the constitutionally appointed custodian of legality and due process in the public administration. She risks the charge of hypocrisy and incompetence if she does not hold herself to an equal or higher standard than that to which she holds those subject to her writ. A dismissive and procedurally unfair approach by the Public Protector to important matters placed before her by prominent role players in the affairs of state will tarnish her reputation and damage the legitimacy of the office. She would do well to reflect more deeply on her conduct of this investigation and the criticism of her by the Governor of the Reserve Bank and the Speaker of Parliament.”

So what then transpires is that a further review gets brought on the PP Report and other grounds for review, that is set out in the report. You will see on the timeline document that the Minister of Finance, South African Reserve Bank and Absa Bank bring applications to review it and set it aside. The matter comes before (a) full bench in Gauteng, (of) three judges and they consolidate all three applications; and the Public Protector files answering papers to all of them. It is in this context that the proof of Record 53 also gets filed – in respect of which is (a) disclosure of certain handwritten notes which we will come to later; if you turn the page of the note that we had provided, you will see that under what is 60.1. The order of the court is then provided…

Chairperson: Just a pause, Adv Bawa. Adv Mpofu?

Adv Mpofu: No it is fine, Chair. We lost Adv Bawa for a few seconds. I don’t think… If she was reading the judgment, then we will just follow it. We couldn't hear her for about a minute or so. But she is back.

Chairperson: Okay. No, thank you. Alright.

Adv Bawa. Sorry, Adv Mpofu. I am actually on the wrong page, so it's good you interrupted me. The judgment was handed down by the full bench on 16 February 2018. The order that they make is that they dismiss the points in limine, which were raised by the Public Protector, and set out that the remedial action – the remaining remedial action that is contained in the report – is reviewed and set aside. The court then orders and makes a very specific court order that the Public Protector must pay the cost of Absa on an attorney client scale, including the cost of three counsel. They must pay 85% of the cost of the Reserve Bank on an attorney client scale, including three counsel and then the Public Protector in her personal capacity must pay 15% of the cost of the South African Reserve Bank on an attorney client scale, including the cost of three counsel de bonis propriis. There is then an appeal of this judgment and application for leave to appeal is brought seeking leave to appeal to the Supreme Court of Appeal; and that is dismissed with costs. The appeal was for leave to appeal the cost order that was granted against the Public Protector personally. The South African Reserve Bank then sought leave to cross-appeal for an order declaring that the Public Protector abused her office in conducting the investigation.

What follows on that, you see on page 4. I'm not going to take you in detail to the provisions of the High Court judgment because it's a lengthy judgment. When we go through the affidavit and the Public Protector comes and gives evidence, I will highlight certain paragraphs of the judgment with you. The matter then comes before the Constitutional Court as a direct application for leave to appeal directly to the court. There is then a majority judgment which is written by Justices Khampepe and Theron, and a dissenting judgment, which is written by the then Chief Justice Mogoeng, in which Acting Justice Goliath concurs with him. So we have a judgment of eight judges. I think it was a bench of ten. Eight judges for the majority and dissent of two effectively. What the Constitutional Court did was it allowed and granted the application for leave to appeal. It dismissed the appeal. In other words, the High Court Order from the full court stood as far as the costs was concerned. And it said “As far as the appeal to the Constitutional Court was concerned, there was no order as to costs”. It similarly dismissed the Reserve Bank's cross appeal for a declaratory order that the Public Protector abused her office in conducting the investigation also with no order as to costs. These were the cases from which the judgments emanated and there is quite an extensive majority judgment from the Constitutional Court, looking at the various grounds of review and effectively, in essence, agreeing with the full bench decision in the High Court. That is the background and the context in which the evidence from today's witness takes place. Mr Chairperson, we would like to call Mr Tebogo Kekana, who will be giving evidence virtually.

Chairperson: Okay. All right. Thank you. Ms Fatima Ebrahim, I now recognise you to introduce the witness… with all the preliminaries that you have to do.

Mr Tebogo Kholofelo Kekana was then sworn in under oath.

Ms Fatima Ebrahim: Chair, the witness is now duly sworn in. Thank you Mr Kekana.

Mr Tebogo Kekana: Thank you.

Chairperson: Thank you Ms Ebrahim and thank you, Mr Kekana. I now recognise Adv Bawa.

Adv Bawa: Good morning, Mr Kekana.

Mr Kekana: Good morning.

Adv Bawa: You deposed to an affidavit. I think its date is 12 December 2019. Is that correct?

Mr Kekana: That is correct.

Adv Bawa: Alright. What did you do with that affidavit?

Mr Kekana: I sent it to the Speaker and to the Presidency.

Adv Bawa: Let me start. You…

Chairperson: Just before you start, Adv Bawa; I am sorry. I see your hand, Adv Mpofu?

Adv Mpofu: Yes, thank you, Chair. I just wanted to make a request to you and Adv Bawa, this glare is killing my eyes. If you could ask the witness if it's at all possible to kindly close those curtains or blinds behind him. Otherwise by the time we finish with him, we will be blind or at least I will be.

Chairperson: So is the sun coming through the windows affecting you?

Adv Mpofu: Yes, the glare that is coming there. I see that it has blinds so maybe they can be closed. I don't know where he is. It might not be up to him. But if it is, can he please do that?

Chairperson: Mr Tebogo Kekana, is there anything you can do there? Oh I understand that he got kicked out and he just got in again. I hope that was not the intention of Adv Mpofu to have him kicked. But he is back, Adv Mpofu. He was kicked out.

Adv Mpofu: It was my intention, Chair but it looks like it didn’t work.

Chairperson: I didn't want to go there. Mr Tebogo Kekana, are you back? You are muted.

Mr Kekana: Yes I am back, Chair.

Chairperson: Are you able to close the blinds behind you without it being dark.

Mr Kekana: Okay Chair, I can certainly do that.

Chairperson: Okay, please. We do want to see you. We don’t want you in the dark. Yeah that seems to be working. That is fine. The other one. It is too dark.

Mr Kekana: Is that better, Chair?

Chairperson: Ja. Even if you just close them halfway – not completely. Just halfway. A little bit of light and a little bit of darkness. It would help. Just halfway.

Mr Kekana: Just halfway?

Chairperson: The one that is behind you actually.

Mr Kekana: Alright, Okay.

Chairperson: You’ve just dealt with the one on the side. I hope it won't make you get out of the system now. Can you just do that quickly for a second?

Mr Kekana: For sure, for sure.

Chairperson: That is fine. Don't completely close it because we do want to see you. Thank you Mr Kekana. I am learning as a Chair to do other things.

Mr Kekana: Yes, I see.

Chairperson: Adv Bawa?

Adv Bawa: Sorry, Mr Kekana. We had just started. You had deposed to this affidavit on 12 December, and you had forwarded this affidavit to Parliament and to the President's office. What was the reason for doing this affidavit?

Mr Kekana: I felt that I needed to report misconduct which I had observed at the Office of the Public Protector.

Adv Bawa: And in paragraph four, you say you made it as a protected disclosure. Why was that?

Mr Kekana: I remember at the time I was charged for other misconduct, so I didn't want to attract any further charges towards me.

Adv Bawa: Okay, you were still an employee of the Public Protector?

Mr Kekana: That's correct.

Adv Bawa: Now, if we go to… Did you get a response to your correspondence?

Mr Kekana: I think I did get an acknowledgement from the Deputy Speaker dated 14 January 2020.

Adv Bawa: In paragraph 7 of your affidavit, you set out that you qualified from the University of Pretoria with an LLB degree in 2014. You then proceeded to do articles. You worked for the Road Accident Fund and you joined the Public Protector as an investigator in October 2011. Correct?

Mr Kekana: Yes, that's correct. Except it says 2004, not 2014.

Adv Bawa: That's correct. You then as an investigator, describe your tasks as attending to all incoming complaints and preliminary investigations at that time; and perform quality assessments of complaints; drafted memoranda, reports and correspondence for the Public Protector, correct?

Mr Kekana: That's right.

Adv Bawa: In December 2016, after Adv Mkhwebane was appointed, you were appointed as the senior investigator in the quality assurance unit of the Public Protector?

Mr Kekana: That's correct.

Adv Bawa: Did you apply for this post?

Mr Kekana: Yes, I did.

Adv Bawa: Okay what did your task entail at the Quality Assurance Unit?

Mr Kekana: It entailed assisting the Public Protector with standardisation of investigation reports, quality check of all reports and following procedures in terms of editing and reviewing of reports.

Adv Bawa: And you also dealt with Section 79 notices within the institution?

Mr Kekana: That’s correct.

Adv Bawa: Alright. Now, you say in January 2017, you transferred to the private office of the Public Protector. Am I correct in understanding that that is the office where the Public Protector and the Deputy Public Protector is located? Which is commonly referred to as a private office?

Mr Kekana: That's correct.

Adv Bawa: And you reported directly to Adv Mkhwebane?

Mr Kekana: That's also correct.

Adv Bawa: Did you apply for this job?

Mr Kekana: No, I didn't apply for the job.

Adv Bawa: How did you come to be appointed?

Mr Kekana: I was approached by HR, who indicated to me that there was a vacancy – the last investigator who worked in the private office had left in December 2016 – and whether I would be interested in working with the Public Protector in the private office, and I agreed. I didn't have any issues with that.

Adv Bawa: You then indicated… Tell us a little bit about what you did in the private office.

Mr Kekana: I did investigations identified by the PP; formal assessments of investigations; report writing, I would also attend to queries on behalf of the Public Protector; correspondence; attendance of the task team meetings and think tanks. I would also review and edit reports, do research, and I think also supervise trainee investigators.

Adv Bawa: And you remained in the private office until December 2017?

Mr Kekana: That's correct.

Adv Bawa: We'll come in a moment to the circumstances under which you left the Private Office. But for now, we'll just continue to say you then transferred to what was the unit called Provincial Investigations and Integration Unit.

Mr Kekana: That's right.

Adv Bawa: And you were a Senior Investigator conducting investigations, drafting notices and reports and dealing with matters in that Unit?

Mr Kekana: That's right.

Adv Bawa: Alright, you detail some of the information in your affidavit, specifically relating to the CIEX report, that came to your attention?

Mr Kekana: Yes.

Adv Bawa: So let's start. We know what the nature of this complaint was, and you see that in paragraph 14. Right? And in paragraph 15, the provisional report…

Chairperson: Just a pause, Adv Bawa. I recognise you, Adv Mpofu. I see your hand.

Adv Mpofu: Yes, yes. Thank you, Chair. Thank you very much. I just wanted, at this point, to place something on the record, Chair, and you can make a ruling. But, again, if you remember before, I've said I raise things just so that it must not be said that we have acquiesced in them. This…this witness is, as you might know, a subpoenaed witness subpoenaed by the evidence leaders. But that's an issue we'll deal with later. But I'm just placing it for the record. Secondly, this is the point that we referred to in our opening address Chair, just to alert you. So where we said there might be a clash between your proceedings and criminal matters that are underway. This witness has given a statement to the police in the course of the criminal matter that is pending, regarding this very issue of CIEX, which is why I'm raising it at this point it ordinarily… he would know better as an attorney. It would be improper for him to give evidence in respect of matters, which are part of pending criminal proceedings, because we call it, as lawyers, double jeopardy. So I just want to place that on the record, and as an objection – and whatever ruling is made, is made, but it must never be said that we did not warn the Committee that it might be making itself guilty of double jeopardy. Thank you.

Chairperson: Thank you Adv Mpofu. Your objection is noted. Adv Bawa?

Adv Mpofu: Chair. I am sorry. You have to make a ruling, I'm afraid, or consider what I've just said. It can’t just be as if I've said nothing.

Chairperson: You have not said nothing. I have noted your objection. I'm asking Adv Bawa to proceed. That's the ruling I'm making.

Adv Mpofu: Yes, well, then you must say so Chair. It can’t be… That's what I'm saying, the… So you're not prepared to consider this submission?

Chairperson: That's the point I've made, that we've listened to you. You have placed on the record not for the… You did correctly as you indicated the first time, that when we get to that point, there are some matters you would raise. You are raising them now. I'm saying we are noting that registration of that point and objection. But I am asking Adv Bawa to proceed.

Adv Mpofu: Thank you, Chairperson.

Chairperson: Thank you

Adv Bawa: Mr Kekana, are you still there?

Mr Kekana: Yes I am still here.

Chairperson: Just before you proceed – I don't want to have a legacy hand from you so can you drop it? So that when it is up I know it's a new hand, Adv Mpofu. Adv Mpofu?

Adv Mpofu: Yes, Chair. I note that. I was saying…unfortunately I am unable to raise both hands in exasperation. But I’ll lower this one.

Chairperson: Please, you have put it back. Please lower it so that it doesn't become a legacy hand. I need to be watching your hand, which must be a live hand, not a legacy hand. Thank you.

Adv Mpofu: Thank you, Chair.

Chairperson: Adv Bawa?

Adv Bawa: Sorry. Mr Kekana we were on paragraph 15 of your affidavit in which you make reference to the provisional report. Did you have any involvement in the preparation of the provisional report?

Mr Kekana: No.

Adv Bawa: Right. Now, the provisional report is sometimes also referred to as a preliminary report, because I've heard some people at the PP Office refer to them as preliminary reports, and others refer to them as provisional reports, correct?

Mr Kekana: Yes.

Adv Bawa: You say in your statement that the provisional report had never been quality assured, prior to it having been leaked to the public. How do you know that?

Mr Kekana: Well, the person who was tasked with quality assurance in the Office informed me that he never quality assured it.

Adv Bawa: And would it ordinarily have been quality assured?

Mr Kekana: Yes, all our reports, or anything that would go out to the public would be quality assured.

Adv Bawa: Okay. Can you briefly explain what that means? What is the quality assurance mechanism in place at the time?

Mr Kekana: Well, the level of quality assurance involved that the investigator who had drafted it should ensure that it meets all the guidelines or the approved guidelines, in terms of the report structure and the applicable law. Then the manager of that investigator would also quality assure that report or notice or provisional report, and ideally it would go to the think tank where it would go through another rigorous quality assurance process; then it would go to the Quality Assurance Unit; then to the Public Protector.

Adv Bawa: After the provisional report was leaked, and essentially when you say leak, what do you mean? It became publicly available?

Mr Kekana: Yes, I learned that it was publicly available.

Adv Bawa: And would a provisional report not ordinarily be publicly available?

Mr Kekana: No, especially if it hasn't been sent to the affected parties yet.

Adv Bawa: Okay. What do you mean, the affected parties?

Mr Kekana: I mean, the people who would be ordinarily implicated in the investigation.

Adv Bawa: Would that include the complainants?

Mr Kekana: It would include the department against which maybe there were provisional findings that have been found in the reports.

Adv Bawa. Okay, the people who laid the complaints?

Mr Kekana: Not necessarily.

Adv Bawa: Okay. You then in paragraph 16 refer to a meeting that occurred with an organisation called Black First Land First. Right?

Mr Kekana: Yes.

Adv Bawa: Now that meeting was a meeting that the organisation requested, correct?

Mr Kekana: I cannot recall, but I think so.

Adv Bawa: In fact, you say in your first sentence “that after the leak, the organisation Black First Land First requested a meeting with the Public Protector”.

Mr Kekana: But then… that could be the case.

Adv Bawa: And this meeting was subsequently held?

Mr Kekana: That's correct.

Adv Bawa: Were you in attendance at this meeting?

Mr Kekana: Yes, I was in attendance of the meeting.

Adv Bawa: And it states that during the meeting that the organisation sought to become a complainant in the CIEX investigation.

Mr Kekana: That's correct.

Adv Bawa: And what was the Public Protector’s position in respect of that, at the time?

Mr Kekana: I think I remember we informed them that they couldn't be complainants, but we would welcome any submission from them.

Adv Bawa: Okay, you say in your statement that they were invited to make a submission, despite the fact that they are now involved in the matters pertaining to the investigation or any other relevant matter?

Mr Kekana: Correct.

Adv Bawa: And was the submission helpful towards the investigation at all?

Mr Kekana: I don't recall using any or parts of the submissions or if maybe they were relevant to the investigation. I don't remember them being relevant to the investigation.

Adv Bawa: Right. Now, subsequent to that meeting in January, did you meet with anybody else in that period?

Mr Kekana: In January?

Adv Bawa: No, no. In subsequent months in April, to be more specific. Were you asked to set up a meeting with Mr Goodson?

Mr Kekana: Yes, I was asked to set up a meeting with Mr Goodson. I think it did transpire in April. I'm not so sure on the dates.

Adv Bawa: And did you attend the meeting with Mr Goodson?

Mr Kekana: Yes, I did.

Adv Bawa: And who else attended the meeting?

Mr Kekana: If I remember, the PP was there. I think Ms Linda Molelekoa was also there.

Adv Bawa: And can you recall how the meeting came about?

Mr Kekana: I think I remember getting a book from the PP… Mr Goodson’s book, from the PP, who told me to read the book and that we should invite Mr Goodson or at least meet with Mr Goodson to hear his views on the issues of state banks.

Adv Bawa: Okay, I'm going to take you to page 1175. So on 10 April, you see there's an email from yourself… sorry, from the Public Protector to yourself, asking you to arrange a meeting with Mr Goodson. You see that, Mr Kekana?

Mr Kekana: Yes, I see that.

Adv Bawa: And you're instructed to “Arrange a meeting, that our remedial action on SARB might come from him, and tomorrow morning, collect the book he wrote on SARB, to prepare for the meeting”. Is that the book you're referring to?

Mr Kekana: Yes.

Adv Bawa: Right, if you scroll up to page 1173 you'll see the response from Mr Goodson to your request, where he says to you, “Thank you for contacting me about the South African Reserve Bank's role in the misappropriation of funds in the ABSA Lifeboat scandal. Unfortunately, I do not have any firsthand knowledge of these events, as I only served as a non-executive director of SARB from 2003 to 2012. Whereas the events took place during the period 1985 from 1995. I presume that you are in possession of Dr Chris Stals’ statement about this operation, which he issued at the Section 417 Commission of Inquiry into the affairs of Tollgate Holdings Ltd on 26 February?”. He then tells you where the statement is. You were in possession of Dr Stals’ statement at the time, correct?

Mr Kekana: I think we were. Yes, correct.

Adv Bawa: If you scroll up, you tell him that. Righ, then you indicate to him that due to his extensive knowledge of SARB and central banks in general, the Public Protector wished to meet with him?

Mr Kekana: I am not seeing that on the screen but I think that is correct.

Adv Bawa: There. It is up on the screen now.

Mr Kekana: Ja.

Adv Bawa: And so you have this meeting with Mr Goodson. Where does it take place?

Mr Kekana: It took place in Cape Town.

Adv Bawa: Subsequent to the meeting with Mr Goodson, you have another meeting which you said transpires in May. Now let me just take you to paragraph 17 of your affidavit [on the screen]. Alright. We know that Adv Madonsela had interviewed Mr Billy Masetlha, who was a representative of the State Security Agency, and you were not able to find the transcript or the recording of that interview. Is that so, Mr Kekana?

Mr Kekana: That's correct.

Adv Bawa: And what efforts did you make to find it?

Mr Kekana: We did make a diligent search of the documents, the transcripts or the recordings and we just couldn't find anything on Billy Masetlha.

Adv Bawa: And did you communicate with…Who preceded you as the researcher dealing with this matter?

Mr Kekana: The investigator who had the matter before was Mr Livhuwani Tshiwalule.

Adv Bawa: And did you make contact with him?

Mr Kekana: Yes, efforts were made to find the documents through him. We called him… I think I called him even on several occasions asking him about the record.

Adv Bawa: Okay. Now, the importance of this was that it was the State Security Agency that had concluded the CIEX agreement as they were party to the agreement, correct?

Mr Kekana: Yes.

Adv Bawa: And then Adv Mkhwebane asked you to then arrange a meeting with SSA?

Mr Kekana: That’s correct.

Adv Bawa: And can you remember when that meeting took place?

Mr Kekana: On 3 May 2017.

Adv Bawa: Right by that stage, you already had the provisional report in existence for several months, correct?

Mr Kekana: That's correct.

Adv Bawa: All right. Now talk us through what occurred in that meeting.

Mr Kekana: Well, before I entered the private office, I was in…I was told that the advocate was having a meeting with the Minister prior to the meeting. I think 5, 10 minutes after then we started with the meeting. In attendance was the Minister, the Public Protector, Mr James Ramabulana and Mr Arthur Fraser. As normal, I took out all my notepads and the recorder, so that I could record the proceedings but I was instructed by the Public Protector not to record the meeting. So I took notes and not so long I was taking those notes, I was told that I should not take notes. There was a discussion with the parties on the South African Reserve Bank, especially in the apartheid era. Most of the conversation centred around that. At the end of the meeting, there was an undertaking from the department that they would give us a submission in writing.

Adv Bawa: If I can take you back, you say in paragraph 19 of your affidavit, that Adv Mkhwebane was having a discussion with the Minister prior to the meeting?

Mr Kekana: Yes.

Adv Bawa: And you found it odd that she would do so?

Mr Kekana: Yeah.

Adv Bawa: Why was that so, Mr Kekana?

Mr Kekana: Well in a meeting of that magnitude, it was not custom, or we found it odd for one to have a one-on-one meeting with an implicated party. So that's what I found odd about the incident.

Adv Bawa: And what was the practice at the time in respect of recordings?

Mr Kekana: Well, we would record every investigation, meeting, subpoena that we had.

Adv Bawa: And if you didn't have a recording device available, would you take notes?

Mr Kekana: Yes. Naturally.

Adv Bawa: So you say that you were surprised when you were told not to do both? Who told you that, Mr Kekana?

Mr Kekana: The Public Protector.

Adv Bawa: Did she indicate to you why you should not be doing that?

Mr Kekana: No.

Adv Bawa: And at which stage of the meeting did she say that to you?

Mr Kekana: Early in the meeting.

Adv Bawa: Right you didn't anticipate that the meeting would end with an undertaking that they would provide you with? What was it? You said some submissions?

Mr Kekana: Yes, a written submission on the version of what… how they were involved in the investigation.

Adv Bawa: Right. Was there any conversation at that stage about amendments to the Constitution?

Mr Kekana: No.

Adv Bawa: Was there any conversation about nationalisation of the Reserve Bank?

Mr Kekana: No.

Adv Bawa: In paragraph 21, you say after all the parties had made the submissions, the drafting process began. You were then tasked with drafting the report, right? And whilst you were drafting this report, you were informed by Adv Mkhwebane to find a means of including… including in that report, a recommendation in terms of which the Constitution would have to be amended to cater for the nationalisation of the South African Reserve Bank. Is that correct?

Mr Kekana: That's correct.

Adv Bawa: Can you recall when this was said to you?

Mr Kekana: I can't really recall.

Adv Bawa: Was it prior to your meeting with the SSA officials or after?

Mr Kekana: I think it was after the meeting with the SSA officials.

Adv Bawa: Soon after or long after?

Mr Kekana: I think soon after because I think at first, she indicated to me verbally in one of our meetings, and after that, she did give me an instruction to do that.

Adv Bawa: But there was nothing in the meeting with the SSA officials, that you could link that to the instruction that was being given to you at that stage. Could you?

Mr Kekana: Do you mean that the meeting that transpired on 3 May?

Adv Bawa: That's correct.

Mr Kekana: No.

Adv Bawa: You then say you prepared several drafts of the final report and none of them contained such a recommendation. Why was that so?

Mr Kekana: Because at the time, or actually, I didn't believe that that recommendation was relevant for our investigation.

Adv Bawa: Mr Kekana, let me just take you one step back. I forgot to ask you a question. In leading up to the meeting with the officials of the State Security Agency, did you prepare questions to be asked at that meeting?

Mr Kekana: Yes, I remember preparing some questions for the PP.

Adv Bawa: And were those questions asked?

Mr Kekana: No.

Adv Bawa: And did you follow up with the people from SSA subsequent to that meeting?

Mr Kekana: I remember doing so.

Adv Bawa: If I take you to page… page 1199. Go down. Right. There is an email. Do you recall this? That you sent to Mr Ramabulana, on 3 May? That would be the day on which you met with him, correct?

Mr Kekana: That's right.

Adv Bawa: And you say there “kindly in pursuant to our meeting earlier today, could you kindly confirm when the PP will receive the drafts agreed to in the meeting”.

Mr Kekana: That's right.

Adv Bawa: Did you get the response?

Mr Kekana: No, I didn't.

Adv Bawa: And then if you go up. On 19 May, you sent a reminder, “Kindly note that this is a reminder about the promised narrative from the department. Kindly forward the narrative as soon as possible as we are in the final stages of our report”. Did you get a response?

Mr Kekana: No, I didn't.

Adv Bawa: And in the meantime, what are you doing? Are you continuing to draft or are you waiting for input?

Mr Kekana: I think at that time, I was waiting for inputs. I was also making a couple of drafts or drafting the report.

Adv Bawa: You then provide the Public Protector with a draft report. In fact, I think you do so the following day on the 4th. If one looks at your annexures in your affidavit at 2658. That's an email from the PP to yourself, that says to you, “Make sure you write a letter with my signature, to SIU to request proclamation and report by… Also indicate that we might request the President to extend that proclamation to recover all the Apartheid loot. What role can SIU tribunal play?" Mr Kekana, do you have the report at that stage?

Mr Kekana: Yes, we did.

Adv Bawa: Are you referring to the media report that Judge Hughes put out?

Mr Kekana: Yes, that's correct.

Adv Bawa: Now if you scroll down on TK 2 on the screen; can you tell us what document that is? I think it starts at 2659… 2658 it goes on to 2659.

Mr Kekana: Are you referring to TK 2? Because I am not…I don't have the Bundle that you guys have.

Adv Bawa: Sorry. Sorry, I am referring to… it is a continuation of TK 2.

Mr Kekana: Okay.

Adv Bawa: To make it easy, Mr Kekana, this is the annexure that’s got the PP’s changes on it.

Mr Kekana: Oh that’s TK 2. Yes.

Adv Bawa: You refer to this in… as paragraph 23 of your affidavit?

Mr Kekana: That's correct.

Adv Bawa: Can you tell us what this is?

Mr Kekana: Basically, I had sent a skeleton report, meaning that I had sent a report with the information and somewhere no information at all, for the PP to make inputs on the report.

Adv Bawa: Right, how would she make these inputs?

Mr Kekana: On the document that we're looking at, her inputs, except for the headings, were made in capital letters.

Adv Bawa: Okay, so if we take an example on page 2.8.6.3.

Mr Kekana: 28…?

Adv Bawa: 2.8.6.3.

Mr Kekana: Yes.

Adv Bawa: You see in caps, it says there ‘meaning bank or benefitting 15% of the interest to their benefit’?

Mr Kekana: Yes, that was the PP’s input there.

Adv Bawa: Alright, I'm not going to take you to all of them, but I'm going to take you to 4.3.7.2.9

Mr Kekana: Sorry?

Adv Bawa: 4.3.7.2.9. It is on page 2674.

Mr Kekana: Yes, I have that.

Adv Bawa: Fine. The writing there is “Goodson books, paper from economist; submission by BFLF, SARS response”.

Mr Kekana: Yes.

Adv Bawa: What did you understand by that?

Mr Kekana: My understanding was that we were supposed to put in inputs on those various matters that she inserted there.

Adv Bawa: And, “Paper from economist”, what was that?

Mr Kekana: There was some talk that the PP would get an opinion from an economist.

Adv Bawa: Did you ever have sight of an opinion from an economist?

Mr Kekana: Not before the final report.

Adv Bawa: Now if you go further down at page 2677 under 5.2.2, there's a note for the meeting with the SSA to be inserted into the report, correct?

Mr Kekana: Yes, that was supposed to be the submission from the SSA that we should have received.

Adv Bawa: And further down you’ll see a National Treasury response must be included if you go to 2678 you'll see a repeat of… we are not on 5.3. Go down. You will see that again we talk about the ABSA response, the SARB response, the Goodson’s books and the economist's view if you go further down, it says “common cause issues”. Stop there; it says Fees Must Fall…triple challenges. What does that mean? Can you remember?

Mr Kekana: I don't know what that referred to.

Adv Bawa: Right on the next page, again, we've got ‘Goodson economist, and then it says “Constitution Preamble, Freedom Charter, Bill of Rights”. Do you know why we referring to those?

Mr Kekana: No. The Constitution, the Bill of Rights. But the Freedom Charter I was confused about what the Public Protector was seeking from me on this aspect.

Adv Bawa: Right, if you then go down to 6.1, there is the word ‘substantiated’ then on 6.2, it says “substantiated because the monies will never be recovered” and “use written submission of SSA”. Did you get the written submissions from the SSA?

Mr Kekana: No.

Adv Bawa: And then under the Remedial Action, it says “President proclamation for SIU to recover all the monies and further amend the Constitution to cater for State Bank, per Goodson proposal, to curb future such occurrences”. Did you get a written proposal by Mr Goodson?

Mr Kekana: I think we did get some input from Mr Goodson. He sent through an article. That we had.

Adv Bawa: Okay then you say in paragraph 23, “per reference to Goodson”, is this to the Economist Steven Goodson, with whom Adv Mkhwebane met after the provisional report was leaked? Did… is this Mr Goodson an economist?

Mr Kekana: Well, at the time I was told that he was an economist. I later found out that he was not an economist.

Adv Bawa: Okay then in paragraph 24, you say, “I did not agree with the suggestion, by Adv Mkhwebane, nor did I believe that this recommendation was warranted or legally sound”. Did you say this to her at any stage?

Mr Kekana: Yes, I indicated to her verbally.

Adv Bawa: And what was the response?

Mr Kekana: She didn’t heed to my advices or my sentiments

Chairperson: Adv Bawa. If you don’t mind, can we pause there? We'll take a tea break for 15 minutes; back at quarter to 12. Mr Tebogo Kekana, we’re taking a 15 minute break. So wherever you are, you're allowed to assist yourself in that regard; and everybody else on the virtual. We'll be back at 11:45. Thank you.

[Break]

Chairperson: Thank you. Welcome back. I now proceed with Adv Bawa. Your mic, thank you.

Adv Bawa: We were at paragraph 25 of your affidavit.

Mr Kekana: Yes, that's correct.

Adv Bawa: And you refer to annexure TK 3, which is an email that is sent to you by Adv Mkhwebane. That’s at 2681 of the documents.

Mr Kekana: Okay.

Adv Bawa: Right. I'm just waiting for it to come onto the screen. But the date on which it was sent is 17 May, correct?

Mr Kekana: That’s right.

Adv Bawa: Maybe you can just talk us through it while we're waiting for the screen to come on.

Mr Kekana: Well, it records that the PP thanked me for the submission of the draft report and she indicated that she will go through it and we would meet; that she has asked SSA to provide input and [the] economist. That's what the note indicates.

Adv Bawa: Okay. Now, in your affidavit, you say the input that she was seeking from the SSA, related to a desire to include a recommendation in the report to amend the Constitution to allow for the nationalisation of the SARB. How did you know that?

Mr Kekana: She did indicate to me that the SSA would bring a draft amendment to the constitutional provision.

Adv Bawa: And up until that stage had you drafted such an amendment?

Mr Kekana: No.

Adv Bawa: Okay. You then point out in paragraph 25, that this email was inexplicably omitted from the Rule 53 record. Why do you say that?

Mr Kekana: I know it wasn't part of the record.

Adv Bawa: How do you know that?

Mr Kekana: I think if it was or would have been part of the record, there would have been a media cry on that. So I remember it. It didn't form part of the record.

Adv Bawa: Mr Kekana, were you involved in the compilation of the Rule 53 record?

Mr Kekana: Yes, initially I was.

Adv Bawa: Did you include this letter in that compilation that you put together?

Mr Kekana: Yes, I did print everything. That was… well, I printed everything; it was in the investigation file; made a copy of everything and gave it to the Senior Manager for Legal at the time.

Adv Bawa: And who is that manager?

Mr Kekana: Mr Nemasisi.

Adv Bawa: Now in paragraph 26, going back to your affidavit, you then attended a meeting on 6 June? Can you recall how that meeting came about?

Mr Kekana: I think I was informed that there would be an economist from the SSA, who would assist us with the draft amendment. Subsequent to that, there was a meeting for 6 June in which that economist from the SSA came to the office for a meeting.

Adv Bawa: Right. So in paragraph 26, you identified two people who come to the office: Mr Mai Moodley and Mr James Ramabulana. Is this the same Ramabulana with whom you had met on 3 May?

Mr Kekana: That's correct.

Adv Bawa: And Mr Moodley, was he known to you?

Mr Kekana: No, it was the first time meeting him.

Adv Bawa: And who introduced him to you?

Mr Kekana: The PP introduced Mr Moodley.

Adv Bawa: And what did she introduce him as?

Mr Kekana: She said he was an economist.

Adv Bawa: What then? How long was this meeting?

Mr Kekana: It didn’t take long, maybe ten minutes.

Adv Bawa: Was it recorded?

Mr Kekana: No. It was about 10 minutes.

Adv Bawa: And what transpires during this meeting?

Mr Kekana: Well, he produced the note…on my affidavit it's TK 4. He presented that to us. He gave it to the PP and there was some form of explanation from himself regarding the note that he had provided.

Adv Bawa: And can you recall what that explanation was?

Mr Kekana: No, not really.

Adv Bawa: Now if we go to annexure TK 4, which is 2682 in your affidavit. Is this the note to which you are referring?

Mr Kekana: Yes.

Adv Bawa: If I look at this, Mr Kekana, and I compare it with what’s in the report… to what is contained in the report, then there is one material difference, in respect of paragraph 1 of the recommendation. The recommendation on this page in subsection two says, well, let me read the entire thing. “It is recommended that the following sections in the Constitution relating to the South African Reserve Bank be amended as follows and that all corresponding legislation be duly amended” then 224(1) and (2), which is the proposed amendment, says: “The primary object of the South African Reserve Bank is to promote balanced and sustainable economic growth in the Republic. In other words, you change the objective of the Reserve Bank while ensuring that the socio-economic wellbeing of the citizens are protected” then in subsection 2: “The South African Reserve Bank in pursuit of its primary objective must perform its functions independently and without fear or favour or prejudice while ensuring that there must be regular consultation between the bank and the Cabinet to achieve meaningful socio-economic transformation”. Now, the only difference between that paragraph and what is included in paragraph 7.2.1 of the Public Protector report – on page…I think it's Bundle A…69 – is that instead of saying ‘Cabinet’, it says ‘Parliament’. Do you know how that change came about?

Mr Kekana: I don't recall.

Adv Bawa: And then there's subsection two on this page. Right. This is not included. This is not included in the report as part of the recommendations. Can you explain how this was not included in the report?

Mr Kekana: We didn't use that. I think I was instructed not to insert that.

Adv Bawa: Instructed by who?

Mr Kekana: By the PP.

Adv Bawa: And did you insert this into the report as it was drafted at that stage?

Mr Kekana: Yes, I inserted one.

Adv Bawa: And on whose instructions did you insert?

Mr Kekana: By the PP.

Adv Bawa: Did you tell anyone about it?

Mr Kekana: Yes, I remember telling Mr Matlawe about it.

Adv Bawa: And remind me again, what was Mr Matlawe’s role at that stage?

Mr Kekana: He was entrusted with quality assurance.

Adv Bawa: And did he quality assure this report or the Quality Assurance unit quality assurance this report before it went out?

Mr Kekana: No.

Adv Bawa: Was that usual?

Mr Kekana: No, it wasn't usual.

Adv Bawa: Now, in your affidavit at paragraph 30, you deal with the review proceedings instituted in 2017. If you recall, I took the Members through the various court processes this morning, right? And you indicated that you were…in paragraph 31…The task of compiling the Rule 53 record, it was your task, correct?

Mr Kekana: Yes. Initially, it was my task.

Adv Bawa: Right you also subsequently attended meetings with the appointed legal representatives?

Mr Kekana: That's correct.

Adv Bawa: Right. In paragraph 32 you say that in August 2017 you attended a meeting with Sefanyetso Attorneys?

Mr Kekana: That's right.

Adv Bawa: Where did that meeting take place?

Mr Kekana: At their offices.

Adv Bawa: What did you tell them about the recommendation that was being challenged at that stage?

Mr Kekana: I told them that the recommendation to amend the Constitution came from the SSA.

Adv Bawa: At that stage of the legal proceedings the only challenge was that recommendation… that recommendation was the only one that was being challenged, correct?

Mr Kekana: I'm not so sure.

Adv Bawa: You then, in paragraph 33, refer to a telephone call that you received from Adv Mkhwebane. Can you tell us about that?

Mr Kekana: Yes, after our meeting with Sefenyatso Attorneys we were supposed to go and meet counsel in another meeting. On our way to the meeting, I did receive a call from the PP, indicating that she doesn't want us to disclose the draft that we have made; that only the draft for Adv Mkhwebane should be transmitted.

Adv Bawa: You mean Adv Madonsela?

Mr Kekana: Oh, I mean… Yes, I mean Adv Madonsela. Sorry about that.

Adv Bawa: And where were you meeting counsel at that stage?

Mr Kekana: It was somewhere in Joburg.

Adv Kekana: Right, what occurred? Did you relay this message to the attorneys and counsel?

Mr Kekana: Yes, I did relay the message.

Adv Bawa: And what was the response from counsel?

Mr Kekana: [He] did not agree with PP’s sentiments.

Adv Bawa: Was the PP present at this meeting?

Mr Kekana: No.

Adv Bawa: Okay, when you say counsel didn't agree, what did he say?

Mr Kekana: Well, he indicated that everything has to be included in that Rule 53 record.

Adv Bawa: And is that how you understood it as well?

Mr Kekana: Well at the time, yes.

Adv Bawa: You then, in paragraph 34, referred to a subsequent meeting. Can you tell us about that? Where was that meeting?

Mr Kekana: Yes, that meeting was at counsel chambers.

Adv Bawa: And was it with the same attorneys and counsel?

Mr Kekana: No.

Adv Bawa: And when did you find out that the legal team had changed?

Mr Kekana: Well, at the meeting.

Adv Bawa: Okay. Was the PP at that meeting?

Mr Kekana: Yes, she was in attendance.

Adv Bawa: And did you say anything at that meeting?

Mr Kekana: I might have contributed minimally but the persons that were involved from the Office was the PP and Mr Nemasisi.

Adv Bawa: Okay. Now, if I take you to paragraph 35. You say you informed Adv Motimele of all the information at your disposal, regarding the sixth investigation, including aspects of the recommendations [that] were prepared for the Public Protector by the SSA itself and not by her. When did you do that?

Mr Kekana: That was at a subsequent meeting that I went alone to counsel chamber.

Adv Bawa: And did Adv Motimele continue to deal with this matter?

Mr Kekana: I don't think so, no. I think I later learned that there was another counsel that was appointed after Adv McCaps Motimele.

Adv Bawa: And do you know why initially the first counsel and then Adv Bham – was the initial counsel – and then Adv Motimele was no longer on brief?

Mr Kekana: No, I wasn't provided with any reasons.

Adv Bawa: You mention in paragraph 66 the presence of a Mr Sibusiso Nyembe. Can you tell us about that?

Mr Kekana: Yes, he was present in, I think, two meetings that we had with attorneys and counsel. In the first meeting that I've met him, I only knew his name. He was introduced as Mr Sibusiso Nyembe there but I didn't know what his role was. Then in the subsequent meeting that we had with Adv McCaps Motimele at his chambers, he was introduced as a political adviser to the PP by the PP.

Adv Bawa: And did he subsequently become employed at the Public Protector's Office?

Mr Kekana: That's right.

Adv Bawa: In what capacity?

Mr Kekana: He was first, I think, appointed as a special adviser to the PP. Then, thereafter, the Chief of Staff.

Adv Bawa: He has now passed, isn't that so? Mr Kekana?

Mr Kekana: I've learned about that.

Adv Bawa: In paragraph 67. You refer to a meeting that you had with Mr Tyelela, the Senior Human Resources Manager. Can you tell us about that?

Mr Kekana: Yes. In November 2017, I did have a meeting with Mr Gumbi Tyelela, who informed me that the PP no longer wanted to work with me.

Adv Bawa: And what reason was given? Did you ask for a reason?

Mr Kekana: Yes, I did ask. I was told that the PP indicated that I was talking too much to our attorneys.

Adv Bawa: And did you ask the PP about this?

Mr Kekana: I did approach the PP. I did indicate to her that I didn't understand the decision, but I accepted it.

Adv Bawa: And what was her response?

Mr Kekana: I think she just thanked me for my contribution, that was that.

Adv Bawa: You were then transferred to a different unit, still at head office, correct?

Mr Kekana: That's right.

Adv Bawa: And that was called the Provincial Investigations and Integration Unit?

Mr Kekana: That's correct.

Adv Bawa: And who did you now report to?

Mr Kekana: I reported to the Senior Manager there, Mr Sello Mothupi, and the Executive Manager, Mr Reginald Ndou.

Adv Bawa: At that stage in December 2017, was there any disciplinary proceedings pending against you?

Mr Kekana: No.

Adv Bawa: Now I'm going to turn briefly to the Vrede Dairy project report because you had some involvement in that report. Correct?

Mr Kekana: That’s right.

Adv Bawa: Right. Now, the Vrede Dairy project report is also one of the subject matters of this inquiry. It is a report which the Public Protector released in February 2018, which was then subsequently challenged and set aside in court. Now, you were appointed as the lead investigator in that matter. Can you tell us how that came about?

Mr Kekana: I was informed that Ms Erika Cilliers of the PP Free State Provincial Office was removed from the matter and that a task team had been appointed to finalise the investigation and the reports. So I was appointed. Myself, Mr Nditsheni Raedani and Mr Muntu Sithole.

Adv Bawa: Right. Just stop there for a moment. Did you… were you given any reason why Ms Cilliers was removed?

Mr Kekana: Well, I was told that the PP believed that she was a Democratic Alliance member.

Adv Bawa: Who told you this?

Mr Kekana: Mr Reginald Ndou.

Adv Bawa: And he was your supervisor at the time?

Mr Kekana: That's correct.

Adv Bawa: Did you have any direct contact with the PP at that stage?

Mr Kekana: No, I don't think so. No, not at all.

Adv Bawa: Right. Now, you say you were assisted by Mr Muntu Sithole. What position did Mr Sithole have at that stage?

Mr Kekana: I'm not so sure whether he was still an investigator in the private office or whether at that stage he was transferred to our legal services.

Adv Bawa: But he wasn't actually in Provincial Investigations and Integration Unit. Correct?

Mr Kekana: No, no, he wasn't.

Adv Bawa: Right. So in paragraph 40, you're saying much of the evidence needed for the investigation was contained in leaked emails of members of the Gupta family, which became known as the Gupta Leaks, correct?

Mr Kekana: That's right.

Adv Bawa: And that Mkhwebane stated that the Gupta Leaks were not to be used in the investigation or included in the report. Did she say that?

Mr Kekana: No.

Adv Bawa: Oh. Where did you hear that?

Mr Kekana: I got that through Mr Ndou.

Adv Bawa: And in paragraph 41, would it ordinarily be so, Mr Kekana, that you would, at this stage, receive all the information from your supervisor?

Mr Kekana: I don't understand.

Adv Bawa: So if you got an instruction from the Public Protector, would you get it directly? Would you get it through your supervisor?

Mr Kekana: I will assume that I will get it from my supervisor.

Adv Bawa: You mean supervisor?

Mr Kekana: Yes. Mr Ndou or Mr Mothupi.

Adv Bawa: And at that stage, were there already drafts of the report that had been prepared?

Mr Kekana: There were numerous drafts. Even the Free State office had submitted to us numerous drafts.

Adv Bawa: And the evidence, was that still in the Free State or had that been submitted to you?

Mr Kekana: It took some time to get all the evidence but we had all the evidence at our disposal. That's what I believe.

Adv Bawa: But how long did you work on this report?

Mr Kekana: I can't recall when the matter was allocated. But it wasn't so long after we were instructed to finalise the report.

Adv Bawa: Okay. Now in paragraph 41, we're going to come, in a moment, when you're instructed to finalise the report. But in paragraph 41, you indicate that Mr Ndou had said to you that Adv Mkhwebane had instructed him not to make any findings in the report against any politician. Is that correct?

Mr Kekana: That's correct.

Adv Bawa: You then say “We were forced to remove adverse findings contained in the report against politicians, including the then Premier and the then MEC for Agriculture”?

Mr Kekana: That’s correct.

Adv Bawa: And who removed them?

Mr Kekana: I think it was a collective effort between I and Mr Raedani.

Adv Bawa: Now, can you recall what transpires in early February? What then happens in respect of the report?

Mr Kekana: Well, as indicated in my affidavit, on 8 February we were instructed to report to the PP’s boardroom for a meeting. We attended the meeting. In that meeting, we were instructed that we needed to finalise the report. The report was subsequently projected on the screen and the PP instructed us to remove certain material or information from the report.

Adv Bawa: Alright, was the investigation completed at that stage?

Mr Kekana: No. In our view it was not complete.

Adv Bawa: Alright. Now were you given any reason why the report had to be completed at that stage?

Mr Kekana: No, none.

Adv Bawa: Do you recall whether you had been told that the report had to be finalised because there were financial constraints in investigating further?

Mr Kekana: No.

Adv Bawa: Who eventually… Did you stay till the end of the report when it was finalised? Or did you leave before the finalisation of the report?

Mr Kekana: I was tasked with a segment of the report. I did amendments on that and submitted it, I think, to Nditsheni, for him to finalise but I wasn't there for the finalisation of the report.

Adv Bawa: So did you leave?

Mr Kekana: Yes.

Adv Bawa: Can you recall anything that was specifically taken out?

Mr Kekana: What I can recall was the issue of the goods – the inflated goods – it was removed.

Adv Bawa: Can you remember any further details?

Mr Kekana: I think also information relating to the beneficiaries.

Adv Bawa: And did anybody voice any concerns at that stage?

Mr Kekana: In that meeting, Mr Nemasisi did warn the PP about the drastic edits.

Adv Bawa: And what was the response?

Mr Kekana: She said that she didn't care whether the report is reviewed or not.

Adv Bawa: When the report got taken on review, were you involved in the legal proceedings at all?

Mr Kekana: No.

Adv Bawa: Then, if I take you to paragraph 44 in your report, it's headed ‘Harassment intimidation’. Can you tell us what occurred in May 2019?

Mr Kekana: I received the call on 29 May 2019 from Miss Maureen Papo, the Human Resource Officer, who indicated to me that I needed to attend an interview conducted by Diale Mogashoa Attorneys on 31 May 2019. I requested the reasons for the meeting and I was advised that it was not necessary for me to have this information. I also requested that that request be put to me in writing. But I didn't get any formal invite.

Adv Bawa: If you go to paragraph 45, what then transpires on the 31 May?

Mr Kekana: Well on the 31 May we did go attend the meeting. I went there with my union rep, Adv Jeno Singh. At the meeting, we found officials from Diale Mogashoa Attorneys. There was no official from the Office of the Public Protector. We raised some issues with them that we did not believe that this meeting was constituted properly or fulfil any due process. After we raised those concerns, they asked us to leave the room. After 10 minutes we were called back and we were advised that the proceedings will not continue as they had to discuss the issues raised with their clients, the Office of the Public Protector. Then the meeting ended.

Adv Bawa: How many people were present at the meeting, besides yourself and Adv Singh?

Mr Kekana: I remember Mr D Diale was there; Mr Stanley Rapetso (sp) was there; Mr Samuel Kubushi was there; and Mr Nkosinathi Lothe was there.

Adv Bawa: And they were all from the same law firm?

Mr Kekana: That's what we were advised.

Adv Bawa: Now, why did you say that the process was unlawful?

Mr Kekana: Because there was no policy warranting for such.

Adv Bawa: For such what?

Mr Kekana: For such action. For an interview or a form of investigation by attorneys.

Adv Bawa: Okay, and if we look at TK 5… to your affidavit, which is at page 2683. You record essentially what you have told us now, in a little bit more detail, as to what transpired, correct?

Mr Kekana: Yes, more or less.

Adv Bawa: More or less. Yes, that email is sent off at 16:30 in that afternoon?

Mr Kekana: That's right.

Adv Bawa: In fact, it's an email sent from your union representative?

Mr Kekana: Yes.

Adv Bawa: And you say in paragraph 47 that 15 minutes later, the HR manager approached you. Tell us what then transpires?

Mr Kekana: I received a call from Mr Tyelela, Senior Manager for HR, and he indicated to me that the attorneys required my laptop.

Adv Bawa: And did you ask him why?

Mr Kekana: Yes, I did ask him why, and he directed my queries to the CEO.

Adv Bawa: And did you go to the CEO?

Mr Kekana: Yes, I went directly to the CEO and inquired as to why my laptop was needed by the attorneys.

Adv Bawa: And what did he tell you?

Mr Kekana: Well, he indicated to me that they were conducting a fact finding investigation into communications between Mr Baldwin Neshunzhi, and Adv Isaac Matlawe.

Adv Bawa: At that stage what position did Mr Neshunzhi have?

Mr Kekana: He was a security manager.

Adv Bawa: Okay, you were then told to hand over your laptop?

Mr Kekana: Yes.

Adv Bawa: And were you told you were a person of interest in the investigation?

Mr Kekana: He did indicate that.

Adv Bawa: What did that mean? What did you understand that to mean?

Mr Kekana: I really didn't know because nobody had informed me of the investigation or any process that was being conducted against me. So I really didn't understand.

Adv Bawa: You detail in annexure 5 several concerns about the process or rather Adv Singh details that, then you repeat it in paragraph 49 of your affidavit. Can you just take us through that quickly?

Mr Kekana: The concern that I raised in paragraph 49 of my affidavit, specifically 49.1 to 49.5 was the process undertaken by the attorneys was not sanctioned by any policy in the Office, and that also as a shop steward at the time, I had confidential and privileged information on my laptop received from other employees, relating to grievances and discontent. Also, I indicated that I have sensitive information regarding pending investigations conducted or being conducted in the office and whether the attorneys who had seized my laptop at the time had the necessary security clearances. I also indicated that the process appeared to be some kind of fishing expedition, possibly with the intention to find something on my laptop, which could be used against me in order to charge me. Lastly, I indicated that there were no assurances from the employer on the legitimacy of the process.

Adv Bawa: You then laid a formal grievance, correct?

Mr Kekana: That's right.

Adv Bawa: And what happened in respect to the grievance?

Mr Kekana: Since I lodged that grievance, I never got any response on it.

Adv Bawa: Right and attached to that grievance is a letter that was written by the union as well. Attached to your TK 6 was a letter dated 7 June, addressed to the Public Protector.

Mr Kekana: Yes, that's TK 7.

Adv Bawa: Yeah. You then received a letter, or let me go back to TK 7. Sorry, Mr Kekana. There was a complaint being raised by your union in respect of the removal of your laptop, correct?

Mr Kekana: That's right.

Adv Bawa: And then in TK 8 you're then asked, you're invited to respond to preliminary findings because you are alleged to be in possession of unauthorised possession and disclosure of confidential information. We can call this an "audi" letter. Correct?

Mr Kekana: Yeah, you may refer it to that.

Adv Bawa: And you responded to that letter?

Mr Kekana: Yes.

Adv Bawa: Can you just briefly tell us what happens after?

Mr Kekana: Sorry, briefly explain what?

Adv Bawa: Can you briefly explain what transpires thereafter?

Mr Kekana: After my response?

Adv Bawa: Yes.

Mr Kekana: To the invitation? Well, after my response, I think I got another letter from the employer. Which is TK 10 I believe.

Adv Bawa: Sorry, Mr Kekana, I am being a bit vague. Let’s go back to your letter at TK 8, which is at… In that letter, you detail what has occurred in paragraph four of that letter, you point out what the complaints were. No. My apologies. TK 8 was the letter that was sent to you?

Mr Kekana: Yes, TK 8 was the letter that was sent to me.

Adv Bawa: Right that letter details what the complaints are against you?

Mr Kekana: Yes, in essence.

Adv Bawa: You then respond. Attached is an email at 2694, which is the email that is sent to the CEO from Mr Matlawe.

Mr Kekana: Yes, that email was attached to TK 8.

Adv Bawa: TK 8?

Mr Kekana: It was attached to the letter I received from the employer. The ‘audi’ one. You are referring as an ‘audi’.

Adv Bawa: And who was the author of that letter?

Mr Kekana: Of TK 8?

Adv Bawa: Of the letter that was attached. The email that goes to the CEO.

Mr Kekana: Oh, that was Adv Matlawe.

Adv Bawa: And what does that relate to?

Mr Kekana: I think it related to instances of, or allegations of irregular appointments, maladministration within the office.

Adv Bawa: Okay. Certain incidents which occur in the Office. It's being raised with the CEO?

Mr Kekana: Yes.

Adv Bawa: You then respond in TK 9 to the ‘audi’ letter.

Mr Kekana: Yes.

Adv Bawa: And essentially what transpires after that?

Mr Kekana: Well, after I responded, then I received a notice to place me on precautionary suspension, which is TK 10, which I had to respond to. I responded to it. That is my TK 11. Subsequent to responding to it, I then received a notice to place me on precautionary suspension; that’s TK 13.

Adv Bawa: Alright, so how long were you on suspension, Mr Kekana?

Mr Kekana: I think from August 2019 up until I was dismissed.

Adv Bawa: And when were you dismissed?

Mr Kekana: September 2020.

Adv Bawa: So roughly a year, just over a year?

Mr Kekana: Yeah.

Adv Bawa: And you were dismissed subsequent to disciplinary proceedings, correct?

Mr Kekana: That's correct.

Adv Bawa: And can you just tell us where that is in the process at the moment?

Mr Kekana: Currently, we have lodged a review application at the labour courts.

Adv Bawa: And what relief are you seeking?

Mr Kekana: Reinstatement.

Adv Bawa: You took the approach in your affidavit – if I just take you back – in paragraph 54 that you were not provided with reasons for the decision to place you on precautionary suspension?

Mr Kekana: Yes, that is what I believed.

Adv Bawa: Were you ever given reasons?

Mr Kekana: No.

Adv Bawa: You also, in paragraph 55, say your laptop was returned to you.

Mr Kekana: Yes, it was returned after some time.

Adv Bawa: In fact, in your affidavit, at paragraph 55, you say 1 August.

Mr Kekana: Yes. Well, that's after my laptop was returned.

Adv Bawa: Yeah. What did you notice about your laptop?

Mr Kekana: There were emails that were missing, especially ones coming from the Public Protector.

Adv Bawa: Now, what are those two email addresses that you identify?

Mr Kekana: Those are the emails for the Public Protector.

Adv Bawa: Well, the one seems to be a Protector domain name. Is that the domain for the Office?

Mr Kekana: Yes, that's the one for the Office. The other one, I suspect, is a Gmail account.

Adv Bawa: Would you have received emails from the Public Protector from both those addresses?

Mr Kekana: Yes.

Adv Bawa: And so you say they disappeared? What did you then do?

Mr Kekana: I did launch a query with our IT.

Adv Bawa: And what happened?

Mr Kekana: And I think they came and looked at my Outlook. They also couldn't find them. They went to Mimecast. I think that is a software application to… that backups emails. We found some of the emails on Mimecast.

Adv Bawa: You say some…

Chairperson: Just a pause, Adv Bawa. Adv Mpofu, I recognise your hand.

Adv Mpofu: Chairperson. Yes. Can you please remove that information from the screen, whoever is operating this, before I speak? Chairperson? Yeah, we object to this display of Adv Mkwebane’s private email address. Obviously the ones used for public purposes are well known to everyone. But the gratuitous display of her private email is objected to, as being an unnecessary invasion of her privacy and her security.

Chairperson: Thank you, Adv Mpofu. Adv Bawa.

Adv Bawa: My apologies Adv Mpofu, I wasn't thinking and realising it was on the screen. You're entirely correct. My apologies.

Adv Mpofu: Thank you.

Chairperson: Proceed, Adv Bawa.

Adv Mpofu: Chairperson?

Chairperson: We are hearing the voice of the Public Protector. What is she saying?

Adv Mpofu: No it's me. I am not the Public Protector, yet.

Chairperson: I hear her voice.

Adv Mpofu: Thanks. No, thank you, Chairperson. No I was saying the… I mean I accept the explanation from my learned friend that she was not thinking. But the point I want to make is that we have also to place on the record, we have very serious security concerns on our side. Not only have we had the problems that we have mentioned here, but since yesterday morning, my emails and telephone communication has been completely blocked by some people that I refer to as the ‘rogue unit’. But the… So it's quite serious. We think that we are the targets of dirty tricks; that's why we don't want to have such information up there, partly. I just wanted to place that on the record as I'm speaking now. I haven't even received the messages from Adv Bawa that I assume she was sending me… I was told by my team, since yesterday morning, because I'm incommunicado because of what, at least one of the people I've consulted, says is interference from sinister forces. Thank you very much.

Chairperson: Thank you, Adv Mpofu, for placing that. Adv Bawa.

Adv Bawa: Adv Mpofu, I do apologise. There was no intent in placing it on the screen. There is a bit of a delay and we were just moving through the paragraphs and had I thought about it more carefully, we would not have put it up at all.

Adv Mpofu: Thank you. No, I accept that. Thank you very much, Chairperson.

Adv Bawa: Mr Kekana, you say that they then went to Mimecast and they managed to retrieve some of the emails?

Mr Kekana That's correct.

Adv Bawa: Right you described Mimecast as an online backup storage system?

Mr Kekana: Yes, for our emails.

Adv Bawa: Were you provided with an explanation as to why only some of the emails could be recovered?

Mr Kekana: No. No, I wasn’t.

Adv Bawa: You've attached to your affidavit, the notice of precautionary suspension that was given to you as well as the charge sheet that was brought in the disciplinary proceedings against you, correct?

Mr Kekana: That's correct.

Adv Bawa: And at the time you were deposed to this affidavit on 12 December 2019. Those receipts had not yet been completed?

Mr Kekana: No.

Adv BAwa: So you had not yet been dismissed?

Mr Kekana: No.

Adv Bawa: Okay. No further questions from our side, Mr Chair.

Chairperson: Thank you Adv Bawa for leading that evidence. You're indicating that that's where you are pausing. The time now is 12:40. In the spirit of Rolihlahla Nelson Mandela, you will be having an extended lunch. We will come back at 14:00 and at that point Adv Mpofu will be invited on the stand. Mr Tebogo Kekana we are going to pause there so that you can take that extended break yourself. Everybody else on the virtual, you can have an extended virtual break. We will resume at 14:00. Thank you, Public Protector and Adv Mpofu, we will see you at 14:00.

[Break]

Chairperson: Adv Mpofu, are you back? Adv Mpofu, are you back? Oh… not there yet? Especially when you are given an extended lunch. Okay just a pause. We will start… we are just checking for the whereabouts of Adv Mpofu. Is the Public Protector back? Public Protector, are you there? Okay, the Public Protector is not here yet – as well as Adv Mpofu. We want to resume… colleagues, I will quickly, before I hand over to Adv Mpofu… I am going to ask the evidence leader to reflect on one quick issue before… but maybe I want you to do that when they are in the system also. Just announcing that. Hon Denner, are you on the platform? It looks like it is only Mr Kekana who is on the platform.

Mr A Shaik-Emam (NFP): Shaik-Emam is on the platform.

Chairperson: Thank you.

Ms M Tlhape (ANC): Tlhape is on the platform, Chair.

Chairperson: I didn’t ask you! Welcome, Manketsi. Adv Mpofu are you back?

Adv Mpofu: Yes Chairperson, I am back. Thank you.

Chairperson: Okay. Thank you. We were just waiting for you.

Adv Mpofu: I apologise, Chair, I was just struggling to get back on.

Chairperson: No problem. Just before I hand over to you, I am going to ask Adv Bawa to raise a quick thing. Adv Bawa?

Adv Bawa: I had neglected to do one thing. I wish to refer the Committee to a media report and the response to questions but I furnished it to Adv Mpofu only yesterday so I'm going to deal with it tomorrow instead.

Chairperson: Okay. Thank you, Adv Bawa, for that reference. We're now ready to start our afternoon proceedings with the cross-examination. I now recognise Adv Mpofu.

Adv Mpofu: Thank you, Chair. Good afternoon Mr Kekana.

Mr Kekana: Good Afternoon, Adv Mpofu.

Adv Mpofu: How are you this afternoon?

Mr Kekana: I am okay, yourself?

Adv Mpofu: I am very good, thank you. Right. I just need you to assist me before we get into it, Mr Kekana. Because I have some problems with my list of witnesses here. I've got columns, and I want to put them into particular sections. I want to know where I should fit you because we've had problems with the previous witnesses. The first witness claimed to be an expert and turned out not to be one. The other one said he was a whistleblower and also turned out not to be one. You have described yourself as a whistleblower, correct?

Mr Kekana: No, I haven't testified that I was a whistleblower.

Adv Mpofu: Yeah, but effectively… You're a lawyer, are you not?

Mr Kekana: Yes, I'm an attorney.

Adv Mpofu: Yes. So when you said in your statement that you were acting under the Protected Disclosures Act, correct?

Mr Kekana: Yes, the affidavit that I submitted, I submitted it in terms of the Protected Disclosure Act.

Adv Mpofu: In case you didn't know, if you do that, then you are called a whistleblower. Do you know that?

Mr Kekana: Sure, I will take your view.

Adv Mpofu: Pardon?

Mr Kekana: I’m saying yes I’ll take your view.

Adv Mpofu: No, it's not a view. That's what… (a) Whistleblower is somebody who acts under the Protected Disclosures Act, or other way round. if you act under the Protected Disclosures Act, then you are a whistleblower.

Mr Kekana: Correct.

Adv Mpofu: So that's… I'm just being as I say… Yeah. I just want to know where to put you. Because I put you under two different categories; whistleblowers, and then I also put you under disgruntled employees, which one are you?

Mr Kekana: You may put me wherever you feel, Mr Mpofu or rather Adv Mpofu. That would be… not my viewpoint or I wouldn't agree with your viewpoint. But you may put me wherever you feel that is fine for you.

Adv Mpofu: Okay, fine. Yes. Okay. No, then I'll put you under disgruntled employees. You agree that you are not a whistleblower?

Mr Kekana: Well, you just described me as a whistleblower and I agree with that; that I am a whistleblower.

Adv Mpofu: No, Chair. No, no please. We're not going to go far if you don't listen to my questions. I've never described yourself as a whistleblower. I said, you describe yourself as a whistleblower. There's a big difference. You understand the difference between those two?

Mr Kekana: Can you repeat yourself again?

Adv Mpofu: You’ve just falsely accused me of having described you as a whistleblower. I'm saying you must listen to the question so that we move along together. I've never described you as a whistleblower. So don't try to be… to be, you know, overly clever. I said you describe yourself…

Mr X Nqola (ANC): Chair, Chair?

Chairperson: Just a pause Adv Mpofu. Hon Nqola?

Mr Nqola: Chair, I think this Committee has discussed on numerous events, how Adv Mpofu conducts himself in this inquiry. He is saying to the witness: Witness must not be overly clever. I don't really think that we should be using such kind of a language in this inquiry. Please Chair.

Chairperson: Thank you Hon Nqola. I want to respond to that. Adv Mpofu, you want to say something?

Adv Mpofu: Yes, I want to respond. Well, I have to respond before you give a ruling, Chair, because it's about me. Chairperson, I don't know if the honourable Member understands what cross-examination is about. This is… firstly, I don't appreciate my cross-examination being unnecessarily interrupted, as I said last week but there's nothing wrong with saying what I've said to the witness. I've said…because he has attributed words to me, which I've never used. So maybe I should put it like this Chair. Mr Kekana?

Mr Kekana: I’m listening?

Adv Mpofu: Yeah. Please, for us to move properly along together, don't put words in my mouth. I won't put words in your mouth. Don't attribute to me falsely things that I have not said. Are we together?

Mr Kekana: Noted.

Chairperson: Just before you proceed. Just before you proceed, Adv Mpofu., I just want to… you haven't responded to Hon Nqola. I think for the cohesion of this process… just to draw your attention to both point 6.2 and 6.3 of the Directives, because I will be focusing on that. I have listened to your explanation and response. But I want to draw your attention to those two sections.

Adv Mpofu: It's unnecessary. It’s unnecessary, Chair, to draw me to any section. I've just explained that the … and I've even rephrased the question for the benefit of Hon Nqola. I've explained to him and to you what cross-examination is all about. So I'm aware of the sections and you can take it for granted that I know what I'm doing here.

Chairperson: That's fine. I don't… it is necessary for the proceedings, for me as a Chairperson to draw any Member, including yourself, to the adherence of these sections that I've just quoted. I'm not drawing you to those sections on the basis that you would know about them. I'm constantly going to be doing that. Please proceed.

Adv Mpofu: Thank you, Chair I hope you also haven't forgotten my plea to you that my cross-examination should not be interrupted.

Chairperson: Yes, yes. I’m also watching. Thank you for that. I will be also alert to ensuring the flow and momentum of your cross-examination and I will guard against it being disrupted unnecessarily.

Adv Mpofu: Or derailed. It's not going to happen that… I'm not going to be derailed. Let me make it clear. It's just to save time, but any attempt to derail me is not going to work here. Okay. Mr Kekana, are you still with us?

Mr Kekana: Yes.

Adv Mpofu: I'm saying really, this should not take as long as it has taken. I apologise to you for it. I'm saying look at your statement, paragraph four.

Mr Kekana: Yes.

Adv Mpofu: It is not me, but you describe yourself as follows “The purpose of this affidavit is to place on record and make a protected disclosure regarding several instances of what I consider to be improper behaviour within the Office of the Public Protector”. Let's just stop there. Would you agree that that description means that you describe yourself and regard yourself as a whistleblower?

Mr Kekana: No, that statement clearly indicates the purpose of the affidavit.

Adv Mpofu: Okay, the Protected Disclosures Act is an Act. Fortunately, I was part of drafting that Act, that is intended to protect whistleblowers. Would you agree?

Mr Kekana: I would agree, Chair.

Adv Mpofu: And therefore by making that statement, you want us to believe that you fall under the category of whistleblowers, correct?

Mr Kekana: That will be correct, Chair.

Adv Mpofu: Thank you.

Chairperson: Just a pause, Adv Mpofu. Just a pause. Hon Gondwe?

Dr M Gondwe (DA): Chair, there is sort of like an interruption in the background. I am not entirely sure if someone’s microphone is on but I can even, in some instances, hear people speaking, someone sighing.

Adv Mpofu: Yeah, yeah.

Chairperson: I don’t know if that is with Mr Kekana or Adv Mpofu.

Adv Mpofu: No, it’s not on our side, Chair. I hear it as well, Hon Gondwe is right. It sounds like a hen or a cock.

Chairperson: Okay. We will try and watch that. Proceed, Adv Mpofu.

Adv Mpofu: Thank you very much. As I say… Thank you. Mr Kekana, as I say again, we must try and assist each other. It shouldn't take us so long to clarify something so simple, that is in your statement. But anyway, as an attorney, you know that the purpose of the protected disclosure is to protect employees from harassment, correct?

Mr Kekana: Correct.

Adv Mpofu: And to protect them from retaliatory harassment by the employer, correct?

Mr Kekana: Correct.

Adv Mpofu And a person who is… who has already… against whom, what we call occupational detriment, has already occurred; is not acting in terms of the Protected Disclosures Act. Would you agree?

Mr Kekana: I don't have an opinion on that.

Adv Mpofu: No, it's not a matter of opinion, Mr Kekana. It is a matter of law.

Mr Kekana: Well I don't agree. I also do not agree as well… I'm not so sure where you get that.

Adv Mpofu: Okay. The… Have you ever read the Protected Disclosures Act?

Mr Kekana: Yes, I've read it.

Adv Mpofu: Yes. That's where I get it here. Have you seen the definition of occupational detriment in that Act?

Mr Kekana: I know it’s there.

Adv Mpofu: What is roughly… I am not asking… It's not like an oral exam. But roughly, without you having the Act in front of you – or if you do, you can look at it – what is an occupational detriment in terms of the Protected Disclosures?

Mr Kekana: Well, from the top of my head, it would mean that there mustn't be any recrimination for the protected disclosure that was lodged to the relevant employee.

Adv Mpofu: Yes, that's not what I'm asking you. But what is an occupational detriment?

Mr Kekana: I have just described… well an occupational detriment would be following – from the top of my head – maybe the protected disclosure, the employer would charge the employee for such disclosures. So the charging of that employee would result in occupational detriment.

Adv Mpofu: Yes. What are examples of occupational detriments?

Mr Kekana: I wouldn't be sure.

Adv Mpofu: You don’t remember? Okay, that's fine. As I say, I'm not trying to catch you out, I'll assist you. Alright. Section 3 of the Protected Disclosures Act – I'm also doing it from off the top of my head – basically says that an employer is not allowed to perform any detriment against an employee, i.e. on account or partly on account of having made a protected disclosure. Do you agree roughly?

Mr Kekana: Well, I haven't seen the section. If you could show me the section, I would maybe agree with you.

Adv Mpofu: You've never seen it. Okay, that's fine.

Mr Kekana: No, no. I didn’t say that I have never seen it. I am saying that I don’t see it in front of me.

Adv Mpofu: Okay. But don't worry about seeing it in front of you, Mr Kekana. Remember, you're the one who introduced the protected disclosure to us here. So we must… Most of the Members are not like you and I; lawyers who are legally trained. So the word ‘protected disclosure’ might mean nothing to them. So I thought you and I will assist the Members, but let me assist you. I'm saying that the heart of the Protected Disclosures Act is that – and I'm not reading verbatim, I'm just telling you what the heart of the section says – “an employer is prohibited through that Act from performing a occupational detriment against an employee On account of, or as a result of, partly on account of that employee having made a protected disclosure”. Do you agree with that? You don’t have to see the… If you know the Act, you will know that that's what the Act is all about.

Mr Kekana: I would say generally… Yes I agree, Chair.

Adv Mpofu: Good. Now, what I'm asking you is a simple question. That is, in that Act, what is this thing called occupational detriment? What are examples? You don't have to give me all of them. I don't… this is not an exam, I just want you to understand that when you put the words ‘protected disclosure’ there, you know what you're talking about, or at least the Members must know what you're talking about. So do you know… if you don't know I will assist you… You don't know, what is a rough list of occupational detriments?

Mr Kekana: You can refresh my memory. I don’t mind.

Adv Mpofu: Yes. Okay. All right. Occupation detriment in the Act is defined as a suspension, some form of harassment, disciplinary proceedings, or a dismissal. Those are the ones that I can remember off the top of my head. Would you agree?

Mr Kekana: Yes, if you're saying that's what's contained in the PDA, I would agree.

Adv Mpofu: Yes, that's what I'm saying. I'm saying that's what's contained in the PDA in section… in the definitions section.

Mr Kekana: Yes, and I said I would agree.

Adv Mpofu: Thank you. Yes, thank you very much. Somebody has been kind enough to bring the Act. Okay. Go just… scroll a little bit up. Yeah, thank you. Okay. That's the part… no, go to occupational detriment. A little bit up. Yeah. Stop right there. Stop there, stop there. Thank you. That's what is in the Act, Mr Kekana. It says: “ 'Occupational detriment' in relation to an employee means (a) being subjected to any disciplinary action; (b) being dismissed, suspended or demoted, harassed or intimidated; (c) being transferred against his or her will; (d) being refused transfer or promotion (e) being subjected to a term or condition of employment or retirement which is altered or kept altered to his or her disadvantage; being refused a reference, or being provided with an adverse reference, from his or her employer; being denied appointment to any employment, profession or office; being subjected to any civil claim …”, and so on… or “being threatened with any of the actions above and being otherwise adversely affected in terms of his or her employment”. Do you accept that then as the... what I call… those are the occupational determinants that are defined. I was asking you to give me one or two and you couldn't give me but you can see that there are about 14 or 15 of them listed, correct?

Mr Kekana: Yes, I do see them.

Adv Mpofu: And then while we're here, whoever is operating the screen can you go to section 3. That's the one we just spoke about now, so that we're on the same page. So it’s a short one, fortunately; that one. Can you scroll to section 3. Right. That's the one I was paraphrasing earlier Mr Kekana… that I say is the heart of this act. It simply says “No employee or worker may be subjected to any occupational detriment by his or her employer on account or party on account of having made a protected disclosure’ In other words, no employee may be subjected to those 15 things that we spoke about or one of them by an employer on account of having made a protected disclosure. Okay. I assume you know, what a protected disclosure is?

Mr Kekana: Yes, you've just described most of… or parts of it.

Adv Mpofu: No, I haven't actually. I only defined 'occupational detriment' and that's all. But anyway, it's fine. Again, I don't want to go into a long thing with you. But the protected disclosure… Yeah, there it is, there you are. “If you make a disclosure to a legal adviser or an employer or a member of Cabinet or Executive or any other person in accordance with Section 9”. Did you make a project disclosure to any of those people?

Mr Kekana: Yes.

Adv Mpofu: Who?

Mr Kekana: Member of Cabinet and to the Speaker. Well to the Presidency and the Speaker.

Adv Mpofu: Okay. Which member of Cabinet?

Mr Kekana: I'm not entirely sure. But I did make the disclosure to the Speaker and to the Presidency.

Adv Mpofu: Yes. Which member of Cabinet did you make a disclosure to?

Mr Kekana: I'm not so entirely sure whether the Speaker forms part of Cabinet. So I said… I'm not entirely sure which member I indicated to which persons I lodged the disclosure to.

Adv Mpofu: Okay, thanks. Okay. You're not sure if the Speaker is a member of the Cabinet. That's where the confusion is. Correct?

Mr Kekana: Yes, I’m not sure.

Adv Mpofu: Chair, could you please direct whoever it is, to mute.

Chairperson: Thanks, Adv Mpofu. No, everyone is muted. It is just yourself, Mr Kekana, and myself here and it is very quiet here.

Adv Mpofu: Yeah it’s also very quiet here.

Chairperson: We'll fix it, because we can also hear it – the noise in the background.

Adv Mpofu: The only way you won't be able to fix it is if it's with me, or with Mr Kekana. Mr Kekana, do you have any control over the background noises of where you are? If you're at home or whatever?

Mr Kekana: No, I don’t. I am in an office and I am sitting alone.

Adv Mpofu: Okay, can you hear that noise? Is it not coming from…

Chairperson: I think it’s coming from you, where you are.

Adv Mpofu: No, it's not.

Chairperson: Every time you speak we hear the noise.

Adv Mpofu: Yeah, well, it's impossible to come from here. I'm not making any noise. Anyway, alright. I know you think it's coming from here, but I'm telling you it's not coming from here.

Chairperson: That’s fair, Adv Mpofu. We will find it and fix it. Please proceed.

Adv Mpofu: Okay, Thank you, Chair. Mr Kekana? Alright. The point I was really coming to, which I thought was not going to take us this long, is that by the time you made this statement, you had already been suspended, correct?

Mr Kekana: That's correct.

Adv Mpofu: Yes. So therefore, there was no… the occupational detriment to you according to what I read, had already occurred, correct?

Mr Kekana: Not in terms of this disclosure.

Adv Mpofu: No. Okay had a occupational detriment, namely a suspension, already occurred when you made the statement or not?

Mr Kekana: I was charged at the time.

Adv Mpofu: Mr Kekana, please. You are a lawyer. Had an occupational detriment or more than one occupational detriment occurred or not occurred by the time you made the statement?

Mr Kekana: Chair, my answer is that when I made the statement, I was already charged.

Adv Mpofu: And you had already been suspended as well.

Mr Kekana: That's correct.

Adv Mpofu: So at least two occupational detriments had already occurred, correct?

Mr Kekana: Not in relation to any protected disclosure.

Adv Mpofu: No, Mr Kekana. I think we’re going to take longer than necessary here. I'm asking you a very simple question. I took you through the definition of occupational detriment and I took you through the definition of protected disclosure. I understand that you don't know what a protected disclosure is, or at least you don't know that the Speaker is not a member of Cabinet. That's fine. We'll…for the purposes of this, we'll overlook that. I'm just…I'm dealing with another issue now, which is that in relation to the issues for which you are ultimately dismissed. Very simple question. By the time you made the statement, at least two occupational detriments had occurred. Yes or no?

Mr Kekana: I was suspended and I was charged.

Adv Mpofu: Yes, that means at least two occupational detriments had occurred because I read the definition for you. Please let’s not waste time.

Mr Kekana: I’ve given an answer, Chair.

Adv Mpofu: That answer means you are refusing to answer my question.

Mr Kekana: No, I am not. I’ve given you an answer.

Adv Mpofu: But why are you not simply answering a simple question? I'm putting it to you that two occupational detriments had occurred, yes or no.

Mr Kekana: I said I was charged at the time and I was also suspended at the time. Doesn't that answer your question, Advocate?

Adv Mpofu: No, why don't you just answer my question straightforward; yes or no? Why do I need to work out some long route?

Chairperson: Just a pause, Adv Mpofu. Mr Kekana has responded in the affirmative to say that he was both charged and suspended.

Adv Mpofu: Chairperson, no. Please, you're not allowed to do this. I'm asking you if…

Chairperson: He has responded to your question.

Adv Mpofu: No, he has not, Chairperson. I am putting a different question. I know he responded to that question. I'm now asking another question. Alright? Which is that because of that answer, would you agree with me that at least two occupational detriments had occurred; yes or no? That’s a different question. You understand?

Chairperson: Thank you, Adv Mpofu. Just a pause. Adv Bawa?

Adv Bawa: I really don't want to interrupt but an occupational detriment… the list of (a)-(h) arising out of the disclosure I think it's only fair that Adv Mpofu puts that to the witness properly.

Chairperson: Okay, just before I go back to you Adv Mpofu. Hon Mileham?

Mr K Mileham (DA): Chairperson. I have raised this before and I am going to raise it again. Adv Mpofu has now said ‘you can't do that’ to you. I'm afraid, Chair, that you have every right: in terms of the directives; in terms of your function as a chairperson; in terms of the powers of Parliament, to interrupt him; to stop him from making repetitive statements; to do what is necessary to make sure that this flows. I find it very disrespectful of Adv Mpofu to tell you how you ought to conduct your meeting.

Chairperson: Thank you, Hon Mileham, for that redirection.

Adv Mpofu: Chair, can I respond?

Chairperson: I would want to proceed, Adv Mpofu, with the witness.

Adv Mpofu: Yeah, but you must allow me to respond, Chairperson, surely?

Chairperson: On what now?

Adv Mpofu: On what I’ve been accused of.

Chairperson: Just pause: Hon Tina Joemat-Pettersson.

Ms T Joemat-Pettersson (ANC): Thank you, Hon Chairperson. May I also request that the honourable advocate addresses you as the Hon Chairperson of the House. This is a parliamentary committee and in a formal committee every chairperson should be addressed as the Hon Chairperson. May I please insist on the correct manner in which you are addressed. It is highly unprofessional and unnecessary. Thank you, Chair.

Chairperson: Thank you Hon Tina Joemat-Pettersson. Adv Mpofu, I am asking that you proceed with the witness.

Adv Mpofu: Hon Chairperson of the House – I've been asked to address you like that – can I respond to the statement that was made about what I said?

Chairperson: Do and proceed with the witness.

Adv Mpofu: Pardon?

Chairperson: Please respond and proceed with the witness.

Adv Mpofu: Yes, I'll do so Chair. It’s not me who made that remark. Sorry… Hon Chairperson of the House. The Member says that I cannot object effectively…when I say you cannot do that Chairperson… Hon Chairperson of the House, that is an objection. An objection is something that I'm allowed to do. Even if it was a court of law, I'm allowed to object. But and… what I was saying… what I was saying is that…

Chairperson: Who is disturbing you now. Who is disturbing you there? Please proceed Adv Mpofu. I don’t know who is disturbing you there.

Adv Mpofu: It's you. It's you, Chairperson. It's you, Hon Chairperson of the House.

Chairperson: But I am not behind you, I am here.

Adv Mpofu: Yes. I'm saying that when I'm raising an objection, then I am… When I'm raising an objection, I am doing so in order to assist the process. I cannot be stopped from making objection. I was not making an objection to say you may not interrupt me, of course, you may Chair, which you have done many times; it's your prerogative. The only issue is… when I was saying you may not do that is to answer for the witness, or to say that he has answered my question when he has not, then you referred to the wrong or an earlier question. That's all really. I thought we had moved on. So I don't know what the Hon Member was…

Chairperson: Okay. Let's proceed so that you do continue the cross-examination with the witness and maybe if you are able so that you… There's a lot of traffic there behind you. Maybe you want us to pause and then you fix that? Because we don't want anything distracting you.

Adv Mpofu: No, it's fine, it was just my PA. I don’t know why she walked behind me.

Chairperson: Okay.

Ms O Maotwe (EFF): Chair, my hand is up, if you don’t mind.

Chairperson: Hon Maotwe, I see every hand. Please can Adv Mpofu finish first, and I’ll recognise you.

Adv Mpofu: Thank you, Chairperson. So, Hon Chairperson of the House, can I please ask for permission? Because I know, Hon Joemat-Pettersson feels strongly about this, but I want to know if you are offended if I call you Chairperson, because I'm doing that with all due respect. That's for us to move. I don't think for the next few weeks if I have to say Hon Chairperson of the House… Please don't take it as a disrespect if I call you Chair because other Members also call you Chair. I think the levels of respect must be equal to all of us.

Chairperson: Adv Mpofu you are allowed to call me Chairperson or Chair.

Adv Mpofu: And you can read that I mean Hon Chairperson when I say that, Chair.

Ms Maotwe: Actually, Chair, that is what I wanted to assist you with.

Chairperson: I’m coming to you Hon Maotwe. Just a pause. Just a pause Hon Joemat. Hon Maotwe?

Ms Maotwe: Yeah, I wanted to assist you on the very point that Adv Mpofu… on calling Hon Chair… there’s no rule like that, that says you must call people honourable Chair, or Hon. It just says that you can call them Mr or Mrs. Hon Joemat must go and read the rules properly. There is no rule like that. You can be called Chair, (and) you can be called Mr Dyantyi.

Chairperson: Thank you Hon Maotwe. The point has been canvassed. Hon Joemat?

Ms Joemat-Pettersson: Thank you, Chairperson. I object to the fact that he was calling you, ‘You, You’ and that was incredibly disrespectful. I accept that you will be called Chairperson. But definitely not the manner in which you were addressed as ‘You, You’. Thank you.

Chairperson: Thank you Hon Joemat. Adv Mpofu, please proceed.

Adv Mpofu: Thank you, Chair. No Chair, you would forgive me, I'm not a Member of the House. So all I want to register is if things like that happen, it's not out of any disrespect.

Chairperson: It's well understood. It's well understood.

Adv Mpofu: And when I say that, I don't know if… who is allowed to call you ‘You’. Hon Joemat just said I don't want Adv Mpofu to call you ‘You’ but she just called you ‘You’ herself. So if I'm less of a person, and I'm not allowed to say ‘You’ then…

Chairperson: That’s fine. Thank you Adv Mpofu, let’s proceed with the witness.

Adv Mpofu: Alright. Mr Kekana, there are… believe me I am asking you this for the last time. You said that… or rather the definition was put up for you. Adv Bawa has now just made an intervention. This is what… let me explain this to you; the reason I started section 3 is exactly that there's a connection between these things: the occupational detriment / protected disclosure. The words ‘on account of’ mean as a result of and also the definitions of employer and employee – which is not relevant for the purposes of my question. Now, I'm saying that at the time of making the statement, you said, “And I make a protective disclosure regarding several instances of what I consider to be improper behaviour within the Office of the Public Protector”. Now I'm saying that at that stage, at least two of the occupational detriments related to your…which ultimately ended in your dismissal, had occurred. Yes?

Mr Kekana: Chair, at the time I was under suspension, and I was charged.

Adv Mpofu: Yeah you’ve already said that. But I'm asking … I've asked you a different question… or don’t you understand the question maybe?

Mr Kekana: Maybe you could expand on the question.

Adv Mpofu: No, that's fine. I'll just move on. We'll argue at the end that you're being unnecessarily evasive on a very simple issue. Okay. The next one is, you said when you made that so-called protected disclosure, you did so because you did not want to attract any further charges against you. Did you say that?

Mr Kekana: Yes, I did say that.

Adv Mpofu: Alright. Now, in other words, you did not want to attract further charges other than those that had already occurred. Correct?

Mr Kekana: Correct.

Adv Mpofu: So you did not want to attract any further occupational detriment, correct?

Mr Kekana: I didn't want to attract any further charges.

Adv Mpofu: Yes, but we know that a charge is also called an 'occupational detriment' in the Act. So you did not want to accept any further occupational detriment, correct?

Mr Kekana: I have answered that question, Chair

Adv Mpofu: No you haven’t. But again, I'll move on. The question is very clear and it's not answered. That's fine. Let's move on. Now, how did you think that making the statement would shield you from any further charges? If that was your motive?

Mr Kekana: Well, because the Act does protect one against recriminations from the employer.

Adv Mpofu: Oh I see. So you were making this disclosure so that if there are further charges of further acts of misconduct; or alleged misconduct against you, then you would be shielded?

Mr Kekana: That's correct.

Adv Mpofu: I see. Thank you. That's what I suspected. Alright. Now the… you are here as a subpoenaed witness correct?

Mr Kekana: That's correct.

Adv Mpofu: And that is a genuine state of affairs. It's not choreographed or simulated, correct?

Mr Kekana: I don't understand choreographed/simulated. Maybe you can explain?

Adv Mpofu: You don't know. Okay. Simulation. You don't know what simulation is? Okay. You see like…

Mr Kekana: No. Maybe in the circumstances I don't understand what you mean by choreographed or simulated. Maybe you could explain?

Adv Mpofu: Yes, okay. Simulated means… you know when soccer players pretend to be injured, then they’re simulating. In other words, it's a feigned state of affairs. So yours is not simulated?

Mr Kekana: No, I did receive a subpoena.

Adv Mpofu: Yeah. Okay. I know that. I'm saying that. Okay. Let me simplify it for you again. You were unwilling to come and testify?

Mr Kekana: Yes. That’s correct, yes.

Adv Mpofu: Okay, somebody is not…has not muted. Those voices are not coming from here. Okay. Anyway, that's fine. Why were you not willing to testify?

Mr Kekana: Well, as indicated, I knew this was a public discourse, and I didn't want my privacy to be impacted. My recollection of some certain events may not [be] as good as it was. So I may have an impaired recollection of certain events. That some aspects especially revolving around my dismissal, currently are subject of litigation in the Labour Court.

Adv Mpofu: Yes, thank you. Those are good reasons. So one is impaired memory, correct?

Mr Kekana: Yes.

Adv Mpofu: The second one is the pending litigation before the Labour Court. Which obviously you wouldn’t want to jeopardise, correct?

Mr Kekana: Yes, I don’t want to jeopardise that.

Adv Mpofu: Yes, you are also aware that you are also… you've also given a statement in respect of pending criminal proceedings against the Public Protector and she also would not want to jeopardise that. Do you understand? Just like you.

Mr Kekana: I hear you, counsel.

Adv Mpofu: I don't know what that means. But I'm saying to you… I'm putting a simple statement just as you don't want to jeopardise the proceedings in the Labour Court where you have been dismissed. Presumably, your view is that you've been unfairly dismissed – even more if you compare that to a criminal proceedings, you would understand why the Public Protector does not want to jeopardise her case where she is facing something worse than a dismissal, which is criminal proceedings, surely? Agreed?

Mr Kekana: I don’t have a view on that, Chair.

Adv Mpofu: Okay. Alright. Well, again, I’ll argue that you are refusing to answer a very simple and obvious question, this is just a matter of logic. But fine, let's move on.

Chairperson: Just a pause, Adv Mpofu. I recognise, Hon Mulder.

Dr C Mulder (FF+): Thank you, Chairperson. Good afternoon. I understand that Adv Mpofu wants to follow certain logic. But it can't be in order for him to say that the witness refused to answer when the witness says 'I don't have an opinion on this'. That does not mean that the witness said I refuse to answer.

Chairperson: Thank you, Hon Mulder. Adv Mpofu?

Adv Mpofu: That's fine. It's fine. I'll just move on. Thanks, Chair. Okay. Yes, you, you have… I'll argue that you have failed to answer that question, which is the same thing as refusing it. I’ll argue that; that’s it. I'm going to argue that, whether it will be accepted or not does not mean I'm not going to argue it. I'm not prepared to argue it right now. Thank you, Chair.

Chairperson: Proceed.

Adv Mpofu: Thank you. You… as a lawyer, you may have heard of what is called double jeopardy, Mr Kekana, correct?

Mr Kekana: Yes, I’ve heard.

Adv Mpofu: And it is exactly what you're saying; one of the reasons you didn't want to testify, you didn't want to be placed in a situation of double jeopardy, where you prejudice your labour court case, correct?

Mr Kekana: As I indicated that I don't want to prejudice my Labour Court matter.

Adv Mpofu: Yes. Because of the … what we lawyers know as a double jeopardy rule. In other words, when you have one set of proceedings affecting another set of proceedings, which are pending at the same time, correct?

Mr Kekana: Yes. I didn't want to prejudice my proceedings at the Labour Court

Adv Mpofu: Because of the double jeopardy rule?

Mr Kekana: Yes, because of that, if you are insisting on that.

Adv Mpofu: No, I'm not insisting, it's the rule. I didn't make that rule. But thanks, I think you've answered this one. With your first word, which was…Yeah, thank you. You know that the double jeopardy rule is a rule of fairness. It is meant to protect people like you from having to answer the same thing twice in different forums. It's a rule of fairness, in essence, you agree?

Mr Kekana: Chair, if that's the case in point I would have to agree.

Adv Mpofu: Thank you. Right. Now, let's then go to the issues that you have raised in your… Alright, you say in paragraph 5: “This affidavit says to make a protected disclosure pursuant to the Protected Disclosures Act, in that it discloses information regarding the conduct of my employer, which in my view is irregular and or improper. I believe that this disclosure complies with the conditions contained in Section 9(2) of the PDA”. What are those conditions?

Mr Kekana: I can't remember them from the top of my head.

Adv Mpofu: Okay, but you believe, once again, that this is… you believe that the Protected Disclosures Act is meant to shield you from further charges or that kind of thing. That's what you believe the Act is for, correct?

Mr Kekana: That's what I indicated, Chair.

Adv Mpofu: Again, I don't want to argue it with you now. I'm going to argue at the end. That's not the purpose of the Protected Disclosures Act. But be that as it may, let's move on to the content of your affidavit. You joined the Public Protector in 2011, correct?

Mr Kekana: That's correct, Chair.

Adv Mpofu: Now, Mr Kekana, I had hoped to ask you to assist the Committee in another respect but from the last few answers, I'm not sure if you'll be able to do so. But let's just take a chance. You are a Senior Investigator, correct?

Mr Kekana: No, currently I am not a Senior Investigator.

Adv Mpofu: Okay. You have been… you were a Senior Investigator?

Mr Kekana: Yes, that’s right.

Adv Mpofu: Right. Maybe you may or may not be able to assist…

Chairperson: Adv Mpofu, we cannot hear you. The volume has gone low.

Adv Mpofu: Okay. How is that now, Chair?

Chairperson: It's still bad. Let’s ask IT to assist. I think the problem is not with you.

Adv Mpofu: Yes, because nothing has changed on my side. Is that still bad, Chair?

Chairperson: It's still bad. It's like you are far.

Adv Mpofu: Okay maybe your IT can try. I’ll also call my IT this side, to see if they can’t assist.

Chairperson: Mr Kekana, can you speak so we can see if it's also you?

Mr Kekana: Chair, I can hear very well, Chair.

Chairperson: It's fine. We can hear you too, so the challenge is there, where Mr Mpofu is. We can hear Mr Kekana quite loud and clear. I think we are not able to hear you properly and we don’t want to miss what you say.

Adv Mpofu: Thank you, Chairperson. Yeah, I can also hear Mr Kekana clearly, just for the record.

Chairperson: It must be your mic. You are coming up and down. We hear you and the next moment we don’t hear you.

Adv Mpofu: Okay Chair, can we just pause for a second, my IT person is coming now.

Chairperson: We can pause for a minute.

Adv Mpofu: Any luck Chairperson? Is that better?

Chairperson: Are we winning, Adv Mpofu?

Adv Mpofu: No Chair, I am trying to do it myself but I am not succeeding.

Chairperson: Mr Kekana, are you still with us?

Mr Kekana: Chair, I am still here, Chair.

Chairperson: You’re lower now. Your voice has gone low. Can you hear me properly?

Mr Kekana: Chair, I can hear you crystal clear.

Chairperson: Now I can also hear you crystal clear. Adv Mpofu, are you winning?

Adv Mpofu: How is that?

Chairperson: That’s better.

Adv Mpofu: Okay. Good. Thank you. I just had to press all the buttons until I got to the right one. Thank you, Chair.

Chairperson: Which is the reason you must sit here next to me.

Adv Mpofu: Yes, I will be with you next week, Chair.

Chairperson: Thank you. Go ahead.

Adv Mpofu: Thank you. Sorry about that. Mr Kekana you were able to hear that first issue about you being a Senior Investigator.

Mr Kekana: Yes.

Adv Mpofu: Yes. Now I was saying, and I promise you, I'll move away from this if you cannot assist because it's something that I was hoping someone like you would come. Do you, for the benefit of the Members, are you familiar with the theory of investigations in general?

Mr Kekana: No, not in general. But I was aware of the procedures that we would use at the Office in terms of investigations.

Adv Mpofu: Yes. Okay. In terms of the manual that was used in the Office, correct?

Mr Kekana: I was aware of that.

Adv Mpofu: Yes. Okay. No, that's not what I'm asking per se but it might be relevant. I want you to assist if you can, only if you can, to define the difference between an investigative process and an adjudicative process. In other words, a process of investigation, as opposed to, let's say, a disciplinary hearing or that kind of thing. Do you know the difference between the two?

Mr Kekana: Well, maybe just to try and answer you. I would think an investigation would be some sort of process to find evidence in relation to a particular complaint or allegation. You would conduct an investigation to gather the evidence to see whether there's merit. Then you said the second one was, counsel?

Adv Mpofu: Pardon?

Mr Kekana: You said the second was?

Adv Mpofu: An adjudicated process, let's say a DC, or this what we're doing now, an inquiry?

Mr Kekana: Well, a disciplinary process or hearing, would be where parties would come and give evidence. At the end of the day, the umpire would make a decision on that.

Adv Mpofu: Yes, thank you. Thank you. No, I am happy with that.

Chairperson: Just before you proceed Adv Mpofu. I don’t know if it is by intention that we no longer see you now. There is no camera of you. Or maybe that was how you were fixing the audio – that it was better when we don’t see you.

Adv Mpofu: I’m sure it's better for some but, no, it was not deliberate, Chairperson.

Chairperson: Okay, it's fine. Go ahead, go ahead.

Adv Mpofu: Thank you. Yes. No, I was saying, Mr Kekana, I’m happy with that broad, rough, non-academic distinction. That's exactly what I wanted. But I'm asking the question apropos (with reference to), which is going to be important for this process going forward. Would you agree that in an investigation, the rules, in particular, with regard to ‘audi’ are not the same as in an adjudicative process? Let me define that, for example, in an investigation – and I'm sure you've conducted many investigations – it can kind of take you…you never know where the investigation might take you. Whereas in an adjudicative process, you have, as you correctly say, a set of pleadings, and you know what the dispute is about…Agree?

Mr Kekana: I would agree on that rough interpretation.

Adv Mpofu: Yes. Thank you. You don't… When you're doing an investigation like surveillance or things like that, you don't go around saying to the person ‘I want to give you a hearing as to whether I should take a picture of you’. I'm making an outrageous example for effect. As opposed to if it was a court of law, you obviously wouldn't be able to act in that fashion. Am I correct?

Mr Kekana: Well, in our investigations, sometimes we would subpoena witnesses, you know, to give their side of the story.

Adv Mpofu: Yes. No. I accept that sometimes particularly if those witnesses were unwilling to cooperate, let's say. Correct?

Mr Kekana: That’s right.

Adv Mpofu: Yes, but no, I'm not talking about situations. I'm just saying in the normal course of events, when you interview witnesses, one witness might lead you to another witness, and you might get information from someone – let's say you are investigating a particular workplace – you might get information from someone in the corridor telling you that ‘actually, this is what happens here, not what those people were telling you’. Information gathering in an investigation is completely different to an adjudicative process. I'm going to call an expert on this. I just wanted you to…I'm taking advantage of you as an investigator to assist the Committee if you can. Am I correct?

Mr Kekana: I will generally agree.

Adv Mpofu: Thank you very much. That's fine. We'll leave it at that. All right. Now. Let's now then get to the gist of what you have testified about. Starting with the CIEX investigation. You have testified and you would agree that this was an investigation that started under the auspices of the former Public Protector, Adv Thuli Madonsela?

Mr Kekana: That's right.

Adv Mpofu: And that one of the things she had done in pursuit of that investigation was to consult with SSA or NIA, correct?

Mr Kekana: She consulted or had an interview with Mr Billy Masetlha.

Adv Mpofu: Who was the head of NIA or SSA correct?

Mr Kekana: Yeah, if I remember, he was a former head of SSA.

Adv Mpofu: So the answer is yes.

Mr Kekana: I have answered.

Adv Mpofu: Okay, you don’t like giving simple answers to simple questions? Or do you think maybe I'm tricking you if I say the answer is yes?

Mr Kekana: Oh, sorry counsel. No, I do respond to questions. I think I've provided an answer, counsel.

Adv Mpofu: That answer amounts to a yes, correct?

Mr Kekana: Counsel, I want to answer the way that I'm comfortable in answering. I don't want to be prescribed as to how I should answer.

Adv Mpofu: No, I'm not saying how you should answer; I'm telling you how…What I read from that answer, and you can disagree or agree with me, I’m saying that from that answer you've given, I take it as a yes that Adv Madonsela consulted with SSA or NIA. You can say, ‘No, you're wrong, Adv Mpofu’, or ‘You are right’.

Mr Kekana: She consulted with Mr Billy Masetlha.

Adv Mpofu: Therefore your answer to my question is a yes?

Mr Kekana: You can say yes.

Adv Mpofu: Thank you. Right. Then I think we're going to move nicely now. Alright. So there was nothing untoward with consulting with SSA in respect of this investigation. At least not in the eyes of Adv Madonsela. Correct?

Mr Kekana: Sorry, I don't understand the question. Maybe can you…

Adv Mpofu: Yes, Okay. Knowing what you and I now know, which is that Adv Madonsela consulted with SSA, you don't find that odd? You like finding things odd. That’s not one of the things you find odd, correct?

Mr Kekana: Yes, we had to get a version from the SSA, Chair. So there was nothing wrong with organising a meeting with the SSA to get their version.

Adv Mpofu: Okay, it's not so much to get their version. Okay. Would you agree that the CIEX contract… the party to the CIEX contract, which signed on behalf of the South African government, was the intelligence agency?

Mr Kekana: Yes, that's what we understand the SSA.

Adv Mpofu: Yes. In other words, the… they were not about necessarily just to give a version but as the owners – and I'm using that word loosely – of that contract. They were entitled to give an insight as to what this whole business was all about. Correct?

Mr Kekana: We expected a submission from them in regards to the events surrounding the investigation, Chair.

Adv Mpofu: Yes, the conclusion of that agreement, correct?

Mr Kekana: Amongst other things, Chair.

Adv Mpofu: Yes. Thank you. The other issue that was raised with SSA, was the potential impact of the investigation on the stability of the country, correct?

Mr Kekana: I don't know anything about that, Chair.

Adv Mpofu: You were not in a meeting where issues of stability were discussed?

Mr Kekana: Chair, I cannot recall.

Adv Mpofu: Okay. So it may or may not have happened, correct?

Mr Kekana: It may or may not have happened, Chair.

Adv Mpofu: Thank you very much. But just from common sense, you would agree that if NIA or SSA, as it later became known, had any interest in this matter, to the extent that they would even go around signing contracts; it must have had something to do with the security of the country, or the stability of the country because they belong to what we know as the security cluster, correct?

Mr Kekana: I wouldn't be sure about that.

Adv Mpofu: I see. So you think NIA – SSA – would get involved in something that had to do with water affairs; not with the security of the country?

Mr Kekana: I would not like to venture an opinion on that.

Adv Mpofu: Okay, I'll venture an opinion you can tell me if it's correct or not. I put it to you that the reason why the… that NIA owned this process, and as I say, even went so far as to sign contracts about it was because it must have had some relationship with the security and stability of the country. What do you say to that?

Mr Kekana: That's your view, counsel, and I can't add anything more to that.

Adv Mpofu: Okay, you cannot deny nor confirm, as they say in the diplomatic circles, correct?

Mr Kekana: Chair, yes I can’t venture an opinion on that.

Adv Mpofu: Alright.

Chairperson: Just a pause. Just a pause, Adv Mpofu. Adv Mayosi?

Evidence Leader Adv Ncumisa Mayosi: Thank you, Chair. Sorry, Adv Mpofu, could you just clarify for us what it is you're putting to the witness? Is that going to be the version of Adv Mkhwebane?

Adv Mpofu: Maybe you didn't…maybe you missed the part where I said it's common sense. I've just said that. I'm asking the witness whether from common sense he would agree or not agree with the statement that if something is of concern to NIA, it must have something to do with security. If it is of concern to the Department of Housing, it must have something to do with housing, or if it has something to do with… I don’t know. That’s just a common sense statement. But he says he cannot… he can't agree with that. He can neither agree or disagree.

Chairperson: Okay, proceed.

Adv Mpofu: Thank you, Chair.

Chairperson: Just a pause Adv Mpofu. Hon Herron?

Mr B Herron (GOOD): Thanks Chair, and I’m sorry for interrupting. I'm just trying to understand is… if the proposition is that the CIEX report was owned, in other words, managed in the South African government by the Department of Intelligence or the SSA or the NIA and that Adv Madonsela, the previous Public Protector, also met with the SSA. I feel like I'm lost a little bit. I just wanted Adv Mpofu to confirm whether I'm following it correctly.

Chairperson: Alright. You got that, Adv Mpofu?

Adv Mpofu: Yes, Chair, thank you, Hon Herron. That was my first question, and the witness did answer that. He confirmed that indeed Adv Madonsela met with SSA and, yes, Hon Herron he confirmed that, that was partly because they were the so-called, quote, unquote owner. The owner thing is just my word. I'm not going to hold the witness to it. I just meant that… what Hon Herron is exactly saying; that they were the persons who represented the South African government in this particular transaction. The only issue I was now raising with the witness was if they were indeed the lead department – as I think that's what it's called – in this particular transaction, on behalf of the South African government; therefore, it must have had something to do with the security of the country. The witness says he cannot confirm or deny that. There's nothing I can do. I'll move on to the next thing.

Chairperson: Thank you. Hon Herron is clarified. Please proceed.

Adv Mpofu: Mr Kekana, one of the reasons why the meeting had to be held was because the transcript, or notes, or whatever, or any evidence of the previous meeting with Adv Madonsela went missing. Otherwise, it might not have been necessary to have this meeting if those notes were available, correct?

Mr Kekana: You're referring to the meeting with the SSA?

Adv Mpofu: Yes with Mr… the one you referred to with Mr Masetlha.

Mr Kekana: No, there was no meeting with Mr Masetlha. The records for Mr Masetlha went missing so it was necessary for us to have a meeting with the SSA to get their narrative on the events surrounding their investigation.

Adv Mpofu: What do you mean, there was no meeting with Mr Masetlha? I thought we had covered that ground where you and I have agreed – even Hon Herron has made sure that we've covered that ground – that there was a previous meeting between Adv Madonsela and Mr Masetlha.

Mr Kekana: Yes, there was a meeting previously between Adv Madonsela and Mr Billy Masetlha, and…

Adv Mpofu: Yes. That’s the… Sorry. So sorry, Sir. I didn’t mean to interrupt you. You can finish.

Mr Kekana: And upon noticing that, we couldn't find any record of that meeting or transcripts. We organised another meeting with the SSA.

Adv Mpofu: Thank you. Yes. No, I think we're saying the same thing. I'm sorry. Maybe I didn't put it properly. I’m saying therefore you'd agree that had those transcripts of those meetings been found, it might not have been necessary to have another meeting? I think that's what you're saying?

Mr Kekana: Yes, it might not have been.

Adv Mpofu: Correct. Right, because the transcript was missing, this meeting was therefore arranged and it took place when?

Mr Kekana: The meeting took place, I think on the…

Adv Mpofu: 3rd of May. 3rd of May 2017.

Mr Kekana: That’s right.

Adv Mpofu: In that meeting, on the other side, there was Mr Ramabulana and Mr Arthur Fraser, otherwise known as King Arthur these days. Correct?

Mr Kekana: Yes, there was Mr James Ramabulana, Mr Arthur Fraser and Minister David Mahlobo at that meeting.

Adv Mpofu: And then this is the first oddity you say… as I said, you found a few things odd, O-D-D. You said you found it odd that the Public Protector spoke to Mr Mahlobo separately?

Mr Kekana: Yes.

Adv Mpofu: Do you find it strange sometimes, you know, the senior people in [a] particular delegation might have a separate meeting; preliminary meeting, sometimes called a meet and greet. That kind of thing. Is that odd?

Mr Kekana: For me, the odd thing was that we usually didn't have one-on-ones, especially during an investigative meeting.

Adv Mpofu: Yes, but, well, the version of the Public Protector will be that, that was not necessarily an investigative meeting, but a meeting for the purposes that I've explained – to get clarity with the… from the owners of the contract.

Mr Kekana: That would be her view, Chairperson. I can't add anything on that, Chair.

Adv Mpofu: Yes, but you can’t dispute that view, correct?

Mr Kekana: Chair, the only testimony in light of that, is that I found it odd that in an investigative meeting, you would have a one-on-one before the meeting proceeds.

Chairperson: Thank you. Just pause, Adv Mpofu. Hon Gondwe?

Dr Gondwe: Adv Mpofu, I want to get clarity when you refer to the owners of the contract, are you trying to imply that the complaint emanates from the SSA or NIA at the time? You refer to the owners of the contract so I wasn't entirely sure who you were referring to there.

Adv Mpofu: Yes. Thank you, Hon Gondwe. Yes. I'm sorry. You know, sometimes I use these terms just for shorthand so that we move on. I don't want to be married to the 'owner'. Let me use the correct term. The signatories to the contract were the SSA or NIA, correct Mr Kekana?

Mr Kekana: Yes, they signed the contract between the government and CIEX.

Adv Mpofu: Thank you. That's all I really wanted to convey, Hon Gondwe.

Chairperson: Thank you. Proceed. She is clarified.

Adv Mpofu: Okay. Where was I now? I'm saying that the… I know, Mr Kekana, what you found odd and I know that you think it was an investigative meeting. But I put to you the view of the Public Protector as I understand it, you are not disputing. You just said that is… you're not disputing it, correct?

Mr Kekana: I don't know anything about that view.

Adv Mpofu: Yes, therefore you’re not disputing it, correct?

Mr Kekana: Well, I'm not disputing it. I’m also not agreeing with it.

Adv Mpofu: Yeah no, thank you. I’m clear on that. Alright. So where did you study law?

Mr Kekana: Sorry, Chair?

Adv Mpofu: Where did you study law?

Mr Kekana: The University of Pretoria.

Adv Mpofu: Okay. Now, the Public Protector will say that there's nothing odd, when she is involved as a senior person on your side of the delegation, there's another senior person, at the level of a minister or the Speaker of Parliament or someone of that nature, for her to, as a matter of courtesy, to have a one-on-one, meet and greet with that person. I suppose you also cannot dispute that?

Mr Kekana: Chair, I don't have a view on that. I've indicated what I found odd with the incident.

Adv Mpofu: Yes, you had… you yourself had not been in another meeting with the Public Protector where there had been a minister, Correct?

Mr Kekana: Sorry Chair, I didn’t get that.

Adv Mpofu: Before this you had never been in a meeting with…Sorry, Chairperson?

Chairperson: You are fading again. It is just starting. We were hearing you correctly but you have just gone down now. We can’t hear you.

Adv Mpofu: Oh no.

Chairperson: Mr Kekana, can you hear me?

Mr Kekana: Very well, Chair.

Adv Mpofu: Can you hear me now, Chair?

Chairperson: Yes, Adv Mpofu, we can hear you now.

Adv Mpofu: Am I back? Thank you, Chair. Sorry about that. I was asking, Mr Kekana, if you had been to a meeting… you have never been to a meeting before where the Public Protector was meeting, a person at the level of a minister, correct?

Mr Kekana: I have on some occasions attended meetings where a particular minister was there.

Adv Mpofu: How many?

Mr Kekana: I can’t recall. I really can't recall that. I do remember that I attended meetings where a couple of ministers were there.

Adv Mpofu: No. Cabinet Ministers or a minister?

Mr Kekana: A Minister. I specifically remember having a meeting with Mr Mahlobo, naturally. I also remember having a meeting with Mr Gigaba.

Adv Mpofu: Okay. Anyway, your evidence is that… you cannot dispute the fact that she normally has those types of interactions with people at that level, correct?

Mr Kekana: Well, I don't have a view on that issue. If she wants to put that, that's her view.

Adv Mpofu: Yes, but Mr Kekana, I need you to help us, please. When I say… I put a proposition to you, you don't have to… you must answer the question truthfully, Sir, as you have taken an oath. I'm saying therefore, I know that you're saying it's her view, we all know whatever you… I've put it to you as her view. I'm simply asking you a simple question. Therefore, you cannot dispute the view, correct?

Mr Kekana: I wouldn't know Chair. If she's making such propositions Chair, I really wouldn't know. I have put my view on what I thought or what at [the] time I felt was odd. I can't add anything more to that.

Chairperson: Okay. Adv Mpofu?

Adv Mpofu: Alright Chair, I give up. Again, I'll argue whatever I argue at the end. But in fairness, Mr Kekana, I must tell you that I'm going to argue once again that you fail to answer a simple issue, especially when it becomes clear what the implications of that issue is.

Chairperson: Let's just pause there because again, you have gone down. We'll give you a chance. We'll take a 15 minute tea break. After 15 minutes, hopefully by then it will be sorted; the audio and the sound.

Adv Mpofu: Can you hear me now Chair?

Chairperson: No. Please just try and sort that out. We will be back in 15 minutes. A tea break Mr Kekana, we’ll see you in 15 minutes.

[Break]

Chairperson: So appreciate yourselves in that regard because the sound is putting you together. Adv Mpofu, let’s proceed.

Adv Mpofu: Thank you. Good afternoon again Mr Kekana.

Mr Kekana: Good afternoon counsel.

Adv Mpofu: Okay. Just to recap… no it's fine, we’ll recap some other time. Let's move on. You were still talking about this meet… what you call a meeting. You'd agree that the interaction between the Minister and the Public Protector was an informal meet and greet or informal session, correct?

Mr Kekana: I don't know anything about that Chair.

Adv Mpofu: But it was not part of the formal meeting, correct?

Mr Kekana: Chair, what I've testified is that there was a one-on-one meeting with the Minister, which I found odd.

Adv Mpofu: Yes, but it was… Please listen to the question. It was not part of the formal meeting, correct?

Mr Kekana: Yes, it was a separate meeting.

Adv Mpofu: So therefore, it was an informal… the informal part of it. Correct?

Mr Kekana: I wouldn't be sure about that.

Adv Mpofu: Okay. So when you say paragraph 20, ‘the formal meeting began’, what did you mean by that? As opposed to what?

Mr Kekana: The investigation meeting began.

Adv Mpofu: Yes, but no, the word formal… you say the formal meeting began. That would indicate to a normal person that whatever preceded that was not part of the formal meeting, correct?

Mr Kekana: Can you repeat that? Because I'm not so sure. What… Are you saying that the meeting between the Minister and the PP was not a formal meeting?

Adv Mpofu: Yes, that's…No, you are saying that in paragraph 20, when you say the formal meeting began. You would like a reader to understand that what preceded that was not a formal meeting or part of the formal meeting, correct?

Mr Kekana: And the preceding meeting. I don't know what type of a meeting it was. All I know is that there was a meeting between the Public Protector and Minister Mahlobo before our meeting.

Adv Mpofu: Thank you. That's good enough. So you don't know what type of meeting it was. So it might have been an informal chit chat or meet and greet, correct?

Mr Kekana: It might have.

Adv Mpofu: Thank you very much you did not…So if it was like that, would you still find it odd?

Mr Kekana: I don't understand.

Adv Mpofu: If indeed… we've now agreed that it might have been just an informal chat. Would you find that odd?

Mr Kekana: I didn't agree to that. I said it might. It might have been.

Adv Mpofu: No, that’s good. It might have been or it might not have been, correct?

Mr Kekana: That's correct.

Adv Mpofu: Yeah. So let's put aside the ‘might not have been’, let's do it step by step. Since it might have been an informal chit chat – and if it was an informal chat – you would not find that odd, correct?

Mr Kekana: Well, in all the investigations that I've done with Adv Mkhwebane, there has never been a one-on-one with another party. So I found this instance to be odd.

Adv Mpofu: No, Sir. Maybe you're not listening to me or I'm not making myself clear. You and I have agreed that this might not have been a meeting or a formal meeting but an informal chit chat. Have we agreed on that, that it might have been that?

Mr Kekana: It might have been, there was a possibility that it could have been, but we're not so sure what kind of meeting it was.

Adv Mpofu: Yes, yes. Correct.

Mr Kekana: Yes.

Adv Mpofu: So I'm saying if it was an informal chit chat, you would not find it odd that the Public Protector would have an informal chat with the Minister?

Mr Kekana: According to my view, I would find it odd, especially preceding an investigation meeting.

Adv Mpofu: Okay. Now, you never witnessed this meeting. So you don't know whether it was just half a minute, or an informal chit chat, as I'm saying? You did not witness it yourself, correct?

Mr Kekana: I wasn't in the meeting.

Adv Mpofu: Did you… No that's not what I'm asking you, Mr Kekana, and you know it. You did not witness the meeting taking place. Even if you were not inside the meeting. I'm not saying you did not attend the meeting. I'm saying you did not see the meeting.

Mr Kekana: Yes, I didn't.

Adv Mpofu: And therefore, the meeting could have taken half a second or half a minute. For all, you know?

Mr Kekana: Could have been.

Adv Mpofu: Yes, it could have just been even less than what we call a meet and greet but just an introduction type of chit chat. I can’t put it less than that. Correct? It might have been that?

Mr Kekana: As I indicated that I'm not so sure.

Adv Mpofu: Yes, Sir. But it could have been… we’ve agreed it could have been half a minute. If it was half a minute, would you have found it odd?

Mr Kekana: Chair. I really can't comment on that. Whether it was half a minute / it was five minutes, I found it odd that preceding an investigation meeting, there's a one-on-one meeting with an implicated party.

Adv Mpofu: Yes. No, no, we'll come to that. Mr Kekana, please work with me here. You and I have agreed that the meeting might well have been for five seconds or half a minute. Correct? Because you did not witness it. You don't know. The answer is you don't know. It might have been.

Mr Kekana: Chair, I didn't agree with counsel on that.

Adv Mpofu: Okay, you didn't agree that it might have been half a minute?

Mr Kekana: I didn't agree with you on that.

Adv Mpofu: Okay, fine. I'm sorry. I apologise. Now I'm putting it to you afresh. So because you did not witness the meeting, it might have been for a duration of half a minute, correct?

Mr Kekana: It might have been.

Adv Mpofu: Yes. Okay. Now, can we be clear? You have now agreed to that. Now, I'm saying if indeed it was less than half a minute, then would you find it odd?

Mr Kekana: If it was half a minute, I still would have found it odd because the fact was that there was a one-on-one meeting with an implicated party before an investigation meeting.

Adv Mpofu: Yes. No, thank you very much, Mr Kekana, I think we're all clear… Well, I put it to you that there's nothing odd about two principals having a meeting of less than half a minute to introduce each other, to the… to the issues or even to the delegations. Let me ask you, do you have a comment? You may or may not have a comment on that?

Mr Kekana: I don't have a comment on that.

Adv Mpofu: Right. Now. The… You know that the meeting took place at the premises of the Public Protector, correct?

Mr Kekana: That's correct.

Adv Mpofu: Yes, then I put it to you that the evidence of the Public Protector will be that this was a courtesy, as the host. The Minister was not going to be left waiting in some waiting room, rather, in some waiting area outside, and she had to call him in as a courtesy. It was a matter of a few seconds or even less than a minute that they were exchanging pleasantries. It was not really a meeting. You can't dispute that, because you've already indicated that, correct?

Mr Kekana: I don't have a view on that Chair.

Adv Mpofu: Yes. Listen to the question. You cannot dispute it.

Mr Kekana: I cannot dispute it. Nor can I agree with it.

Adv Mpofu: Thank you. That's fine. Alright. So let's move on to the meeting with the… between Mr Masetlha and Ms Thuli Madonsela. Did you attend it?

Mr Kekana: No.

Adv Mpofu: You were not present?

Mr Kekana: No, I wasn't in that meeting.

Adv Mpofu: And so you don't know what was discussed?

Mr Kekana: No.

Adv Mpofu: And you don't know if the meeting was recorded.

Mr Kekana: I have knowledge that the meeting was recorded and there was later transcripts of that meeting.

Adv Mpofu: Who recorded the meeting?

Mr Kekana: I learned that the previous investigator in the private office, Mr Livhuwani Tshiwalule, had recorded that meeting and subsequent to that, there was transcript to that.

Adv Mpofu: You learned it from who?

Mr Kekana: I learned it from Mr Tshiwalule.

Adv Mpofu: Okay the… You don't know how, and whether in fact this so-called transcript was lost, or under what circumstances?

Mr Kekana: No, I don't.

Adv Mpofu: Okay, you don't know what the contents thereof were?

Mr Kekana: No.

Adv Mpofu: You have never yourself listened to such a recording?

Mr Kekana: No Chair.

Adv Mpofu: You have never seen such a transcript?

Mr Kekana: No Chair.

Adv Mpofu: Thank you. Alright and Mr Lvhuwani… is his surname Tshiwalule?

Mr Kekana: Tshiwalule.

Adv Mpofu: Tshiwalule?

Mr Kekana: Yes.

Adv Mpofu: Mr Tshiwalule was adopted, and I'm using that word broadly, when Adv Mkhwebane became the Public Protector. She basically adopted Mr Tshiwalule as the lead investigator, correct?

Mr Kekana: Mr Tshiwalule was working in the private office when Adv Mkhwebane commenced with her term.

Adv Mpofu: Okay, Mr Kekana. Let me put it this way – maybe the word adopted is confusing. Adv Mhwebane continued with Mr Tshiwalule as the lead investigator, correct?

Mr Kekana: I'm not so sure when you make reference to lead investigator.

Adv Mpofu: Okay, forget that. Whatever. But she continued with him as the investigator of this matter?

Mr Kekana: Yes, that's correct.

Adv Mpofu: And you did not find that odd?

Mr Kekana: Find what odd Chair?

Adv Mpofu: What we're talking about; that she continued with Mr Tshiwalule?

Mr Kekana: No, I knew that. Mr Tshiwalulewas the investigator in the private office, so I didn't find anything odd about that.

Adv Mpofu: Good. Good, it was good for continuity, correct?

Mr Kekana: Yes.

Adv Mpofu: Thank you, earlier you said you were not sure about whether issues to do with stability, economic or otherwise… were discussed, correct?

Mr Kekana: Yes, I can't recall that.

Adv Mpofu: But you do recall that there was discussion around the vulnerability of the Reserve Bank on the Rand, correct?

Mr Kekana: What I testified was that there were discussions on the vulnerability of the Reserve Bank during the Apartheid era.

Adv Mpofu: Not now?

Mr KEkana: No, we didn't have a discussion about current events.

Adv Mpofu: Okay there was no discussion about the vulnerability of the Rand?

Mr Kekana: No, I don't recall that.

Adv Mpofu: Or the stability of the economy?

Mr Kekana: I also don't recall that Chair.

Adv Mpofu: I see. So as far as you're concerned, the issue of vulnerability referred to the Apartheid era, only… specifically, correct?

Mr Kekana: That’s correct, Chair.

Adv Mpofu: I mean, just out of interest, why would they be concerned about vulnerability of the Reserve Bank during Apartheid? What was that all about?

Mr Kekana: If I recall, well, the discussions mostly were around the fact or the sentiments they were putting through was that the Reserve Bank was prone to a lot of looting during the Apartheid era. Most of the discussions were about that period.

Adv Mpofu: Yes, no, I understand that part. But I'm talking specifically about the vulnerability issue. What was… Well, firstly, let me just play open cards; I dispute what you're saying. I put it to you that the vulnerability that was being discussed was around the economy and now; not during Apartheid-era. But I accept that you disagree with me on that, correct?

Mr Kekana: That's correct.

Adv Mpofu: Yes. Now I'm saying in terms of your… your disagreement, or the vulnerability during Apartheid, what specifically was being discussed about vulnerability during Apartheid?

Mr Kekana: What I can recall is that the Reserve Bank was prone to looting in that era.

Adv Mpofu: There was also discussions about the Heath report, correct?

Mr Kekana: I can't recall that.

Adv Mpofu: You can't dispute it.

Mr Kekana: I can't recall that. I can't remember that.

Adv Mpofu: Yes, I'm putting to you that there was discussion about the Heath Report.

Mr Kekana: Yes, I'm indicating Chair that I don't remember that.

Adv Mpofu: Okay. There was also discussion… okay the point I'm making is that the Heath report is post-Apartheid, it's not pre-Apartheid. So the discussion was about current… the current post-Apartheid era. You can’t recall that, correct?

Mr Kekana: I can't recall that, Chair.

Adv Mpofu: There was also discussions about the Davis panel. You can’t recall that either? Which is also post-Apartheid.

Mr Kekana: No, I can't recall that too.

Adv Mpofu: There were also discussions about the current vulnerability of the Reserve Bank. You can’t dispute that?

Mr Kekana: Chair as I indicated, the vulnerability that we discussed was in relation to the Apartheid era.

Adv Mpofu:Right. Now, if you say… if somebody says that what was discussed was how the Reserve Bank is vulnerable… How are they vulnerable now? You would dispute that?

Mr Kekana: Chair, I don't understand that question.

Adv Mpofu: Okay. If someone who was in that meeting says to you, ‘No, you're wrong, Mr Kekana, what was discussed was how they are vulnerable now, not how they were vulnerable during the Apartheid era’. You dispute that?

Mr Kekana: Yes I would. My recollection is that the vulnerability related to the Apartheid era,

Adv Mpofu: Therefore, you would dispute if someone says the meeting was about how the Reserve Bank was vulnerable now, post-Apartheid?

Mr Kekana: Yes, I would dispute that. Cause I can't recall that.

Adv Mpofu: Thank you the meeting was also about the current… the background of the SSA, correct?

Mr Kekana: I… There was some talk about the SSA then. I don't recall any other thing about that but remember there was some discussions around the SSA then.

Adv Mpofu: Yes. Okay. It looks like you can’t recall a lot of things, Mr Kekana, am I right?

Mr kekana: I have indicated that my memory on certain events is a bit impaired.

Adv Mpofu: Yes. Well, I would say it's impaired on most events, is it? Can it be impaired even about the things that you recorded yourself?

Mr Kekana: If you can bring me a note of that record maybe it may refresh my memory.

Adv Mpofu: Yes, I will do that. But that's what I was worried about. No. before we do that…you agree that they… or let me put it this way, the Public Protector will also say that in meetings of that sensitive nature, with bodies like the SSA, she would… There's something, some protocol called ‘need to know basis’, so she would not record them mechanically. Or that sometimes those people are also not comfortable with being recorded. You can't dispute that you don't know.

Mr Kekana: I don't know about that. All I know is that we recorded every investigation meeting.

Adv Mpofu: Yes, you also took notes.

Mr Kekana: Yes. I tried to take notes for that meeting.

Adv Mpofu: No, I'm saying in every meeting you took notes, correct?

Mr Kekana: Well, we would record and take notes.

Adv Mpofu: Yeah, that's what I'm saying. Yes, in this meeting she instructed you not to take any notes, correct?

Mr Kekana: That's right.

Adv Mpofu: And you complied?

Mr Kekana: I complied.

Adv Mpofu: Well that can’t be true. Because if you complied with her request not to take any notes, then how come… Did you take some notes?

Mr Kekana: I took notes, and I think soon after, then she instructed me not to take any notes.

Adv Mpofu: No, no, no, no, no, no. Mr Kekana, please. This is a serious inquiry. When you say she instructed you not to take any notes and you complied, that means you did not take notes. You agree?

Mr Kekana: To me it doesn't mean that what I'm explaining to you, Chair, is that when the meeting started, she said that I mustn't record the meeting on a device. Then I started to take notes, then she instructed me not to take notes.

Adv Mpofu: Alright. So in your statement…I put it to you that you are just tailoring your evidence to suit the circumstances. This is what you said in your statement ‘Adv Mkhwebane’… Sorry there’s a noise. Sorry, Mr Kekana, can you hear me now? I think you are trying to turn a paper.

Mr Kekana: Yes. Can you refer me to the paragraph?

Adv Mpofu: Paragraph 20, Sir. Okay, let me read it for you sentence by sentence. You say the formal meeting began – remember we covered that?

Mr Kekana: Yes.

Adv Mpofu: Then you say “when the meeting with the SSA began, I took out my notepad in order to take notes of the meeting and took out my recording device in order to record the meeting, as I usually do”. Agreed?

Mr Kekana: Agreed.

Adv Mpofu: Then you say, “Adv Mkhwebane however, instructed me not to record the meeting”. Agreed?

Mr Kekana: Yes.

Adv Mpofu: Then you say “she also instructed me not to take any notes during the meeting”? Agreed?

Mr Kekana: Yes.

Adv Mpofu: And then this is where you find everything odd again: “I was extremely surprised by both these instructions”, correct?

Mr Kekana: Yes.

Adv Mpofu: Yeah. Now, I'm saying that there you indicate that you took… All you did was to take out a notepad and the recorder, and then she instructed you to stop – not to take notes and not to record, correct?

Mr Kekana: I had taken some notes before she instructed me not to take notes.

Adv Mpofu: Yes, I know you did. But I'm saying you're tailoring your evidence to cater for that by surreptitiously slipping in this new version that is not in your statement. What do you say to that?

Mr Kekana: I don't know what you're talking about, Chair.

Adv Mpofu: You know exactly what I'm talking about. I'm saying your statement says that anyone reading this statement from…who has just read this statement, including the persons you sent it to, would read it for what it says, that you were instructed not to take any notes during the meeting; they would not be left with any doubt, correct?

Mr Kekana: Chair, my testimony, and it is common cause that when I made handwritten notes of that meeting, I was instructed not to take notes.

Adv Mpofu: Yes, that's your testimony. Now, before the Committee. I'm saying that was not your testimony in your affidavit. That's exactly what I'm saying. Correct?

Mr Kekana: Well, you may interpret the affidavit in any way that you want to, counsel, that that's up to you. But my view still remains, counsel.

Adv Mpofu: Okay, thank you Mr Kekana. I don't want to interpret… it's not a matter of interpretation. I'm telling you for the last time. Your evidence in your affidavit indicates that you did not take any notes – that those are the words from your… it's not a matter of interpretation. Am I correct? Do those words appear: ‘She also instructed me not to take any notes during the meeting’?

Mr Kekana: I can confirm that she also instructed me not to take any notes during the meeting.

Adv Mpofu: Yes someone reading this would be forgiven for then, assuming that you did not take any notes, because you said you complied with that instruction, correct?

Mr Kekana: Chair, it is common cause that I did, in fact, take notes.

Adv Mpofu: Yes. In other words, what your… you put in the statement, and what you're saying today are two different things, correct?

Mr Kekana: I wouldn’t want to say that Chair.

Adv Mpofu: I know you wouldn't want to say that because it puts you in a bad light. But it is like that, correct?

Mr Kekana: Chair, I've answered the question.

Adv Mpofu: So you are refusing to…

Chairperson: Just a pause there. Paragraph 20 refers to two separate instructions. I think you have canvassed the matter.

Adv Mpofu: Thank you, Chair. Yes I have covered both instructions Chair. Yes, thank you.

Chairperson: Okay.

Adv Mpofu: Anyway Mr Kekana. Let's move on to… Have you got a copy of the notes that you took?

Mr Kekana: No, I don't.

Adv Mpofu: You gave it… when was the last time you saw that note?

Mr Kekana: Some years back.

Adv Mpofu: How many years?

Mr Kekana: I’m not so sure. I’m really not so sure when, hey. Yeah I’m not so sure when.

Adv Mpofu: Maybe four years ago?

Mr Kekana: I wouldn’t be sure. I don’t want to commit to any timeframe actually

Adv Mpofu: No Mr…

Mr Kekana: But it was some time ago.

Adv Mpofu: And when did you last see the minutes… not the minutes, the notes that you took in the meeting with the Presidency?

Mr Kekana: I've just recently revisited that, so I have that note.

Adv Mpofu: You mean for the meeting 7 June 2017?

Adv Mpofu: Yes?

Mr Kekana: I’m looking at it now.

Adv Mpofu: Alright, maybe I'll ask the assistance of my learned friend to put up the notes of the meeting of 3 May 2017. It was shown earlier on. Sorry, I don't have the reference in the… in that document. Adv Bawa, can you instruct someone to put up that note?

Adv Bawa: Adv Mpofu, I don’t have the note of 3rd May… I couldn’t find it.

Adv Mpofu: Okay fine. Thank you. Alright, we will then put it up. But let me just say this, Mr… It's part of the Rule 53 record, Adv Bawa, but it's fine. If you are not able to identify it specifically. Neither can I. So I can't blame you. We will get the proper reference now. Mr Kekana, your notes of the meeting of 3 May 2017 was discovered as part of the Rule 53 record, correct?

Mr Kekana: I think so. Yes.

Adv Mpofu: Thank you, the Evidence Leaders have got that record, but we will just locate it. So I don't want to…

Chairperson: Just a pause, Adv Mpofu. Adv Bawa?

Adv Bawa: I have extracts of annexures that were in the court papers. We have not located the Rule 53 record.

Adv Mpofu: No, it's fine. I don't want to make a big meal out of this, we’ll, as I say, we'll supply, Chair, with your permission? We were under the impression that the Evidence Leaders have the full Rule 53 record, but we might be wrong. Okay, well. Mr Kekana… okay it won’t be fair to do this. Chair, can I arrange that this document is sent and maybe I should not ask any more questions on it – because I thought it was readily available – until tomorrow or until later on. It's a one page document; it's quite simple. But I think it's in fairness to the witness, because he says he hasn't seen it for some time.

Chairperson: That's fine. Tomorrow morning it can be done.

Adv Mpofu: Thank you, Chair. Mr Kekana can you… we will send a version of this document to Adv Bawa, and I'm sure she'll find a way to send it to you. You have consulted with Adv Bawa before, correct?

Mr Kekana: Yes, I have.

Adv Mpofu: But you were unwilling to consult with her. At what stage did you change your mind?

Mr Kekana: I consulted with after the subpoena was issued.

Adv Mpofu: When was that? I don't understand. What we’re talking about, Sir; when you consulted with her?

Mr Kekana: When you say when, which when are you looking for? Oh, the consultation?

Adv Mpofu: There's only one when, you can either give me a date or a time or… when means when?

Mr Kekana: Yes. I thought you were speaking about the subpoena. We consulted on… I think last week and yesterday.

Adv Mpofu: Last week and yesterday. So from last week you were willing to testify, correct?

Mr Kekana: I don't understand that Chair.

Adv Mpofu: You were willing to consult with Evidence Leaders and to testify as of last week, correct?

Mr Kekana: No, that's incorrect. I'm testifying on the strength of a subpoena.

Adv Mpofu: Okay, you were willing to assist the Evidence Leaders and to cooperate with them, after the subpoena, correct? Let me explain to you – sorry – the difference. There are witnesses who are subpoenaed and then they consult with the party that subpoenaed them, then there are other witnesses who refuse and then they are forced to come here; and then we all hear for the first time what they are about. I suspect we are going to have one or two witnesses like that ourselves. You fall under the first category, the category that cooperated after the subpoena, correct?

Mr Kekana: Chair I did accept an invitation from the Evidence Leaders for a consultation.

Adv Mpofu: Yes that was obvious from the way your evidence was led. I'm saying you consulted willingly with them last week and yesterday, after you had received the subpoena. That's why when I said earlier, this is not your so-called… being a subpoenaed witness is not simulated. I meant that… I meant… It's not really a person who comes here under duress, or one who wants us to believe that you are not willing or something in between. You understand where I'm coming from with this?

Mr Kekana: Chair, as indicated, I appear before you under the strength of a subpoena. I didn’t come to testify here willingly, Chair.

Adv Mpofu: Okay. But after you receive the subpoena, you were willing to cooperate with the evidence leaders, correct?

Mr Kekana: No, not cooperate. I accepted the invitation for a consultation.

Adv Mpofu: Yes. That's otherwise known as cooperation. You could have not accepted that invitation. Agreed?

Mr Kekana: Yes, I could have not.

Adv Mpofu: But you elected to cooperate? In other words, to accept the invitation, correct?

Mr Kekana: I elected to accept the invitation.

Adv Mpofu: Thank you. That's all I want to establish. Okay. Anyway… you… did you tell Adv Bawa that you made a note on the 3 May 2017.

Mr Kekana: I think I might have. I’m not so sure. I think I might have.

Adv Mpofu: Mr Kekana, this was an important situation where, according to you, the Public Protector forced you not to take notes and not to record. That's an important issue, isn't it?

Mr Kekana: Yes, it is an important issue.

Adv Mpofu: It is one of the issues where you want the Public Protector to be viewed as somebody who's not fit for her office, correct?

Mr Kekana: Chair, I don't have a view on those sentiments.

Adv Mpofu: Okay, it is one of the view… of the issues that you regard as… Sorry, I just want to read it from your statement… improper behaviour.

Mr Kekana: Yes, it was one of the instances that were out of the ordinary.

Adv Mpofu: Was it one of the instances of improper behaviour or not?

Mr Kekana: Yes it was.

Adv Mpofu: Yeah, alright. Please answer the questions, Sir, wherever it's possible. Okay. So if it was one of the instances of improper behaviour, therefore, it was an important part of your evidence. After all, that's what you're here to tell us about; the improper behaviour of Adv Mkhwebane, correct?

Mr Kekana: Yes, correct.

Adv Mpofu: Yes. Now, it's impossible that you did not tell Adv Bawa that you actually took notes, contrary to what is in your statement, that you actually took notes on 3 May. Correct?

Mr Kekana: I indicated that I have told her about the notes.

Adv Mpofu: No, Sir. But to me… I'm not even Adv Bawa. I didn't even talk to you twice. You told me that you did take notes. Now, you're saying that you told her something different? Why would you have told her that you might have taken notes when you just told me and the Committee that you did take notes?

Mr Kekana: No, I’m indicating to you, Chair, through you, I'm indicating to counsel that I might have indicated to Adv Bawa that there was a handwritten note. It is common cause that there was a handwritten note during our consultations, I might have indicated that to her, that there was a handwritten note.

Adv Mpofu: Yes, to borrow from your vocabulary, it would be odd if you didn't tell her that there was a note, in fact, not that there might be one.

Mr Kekana: Yes, I don't see how I might have overlooked that. If I did overlook that, I think… and that's why I say I might have told her that there was a handwritten note.

Adv Mpofu: I put it to you that you did tell her that there is a handwritten note. What do you say to that?

Mr Kekana: Counsel, I was there, and I'm indicating my view on what happened; that's my answer, counsel.

Adv Mpofu: Okay, so your answer is that; [your] answer is a non-answer .You’re saying you might have indicated; I'm saying to you, that means that you did, or you did not? Either one is possible, correct?

Mr Kekana: Chair, I think I might have done so. So yes. Counsel might be right to say that I might not or might have told her.

Adv Mpofu: And if you did not, it would be odd, wouldn't it?

Mr Kekana: I think it would be odd especially if I wasn't asked about that note, then I wouldn't relate anything about that note.

Adv Mpofu: Yes, but you're the one who's the expert on oddities. I'm saying if you didn't tell Adv Bawa that you in fact took a note on that day, that would be odd, correct?

Mr Kekana: Chair, can counsel withdraw the phrase that I’m ‘an expert on oddities’?

Adv Mpofu: Yes, it is withdrawn.

Chairperson: Thank you, Adv Mpofu. Thank you.

Adv Mpofu: Thank you. I want us to move onto the real stuff. You…it would be odd. You're not an expert on oddities. But it would be odd if you did not tell Adv Bawa that you in fact did take a note.

Mr Kekana: Well, if she didn't ask me about it, I would then not have told her.

Adv Mpofu: But this is something that happened yesterday, Sir. Why are we talking as if it happened 100 years ago? I'm saying it's either yesterday or last week? Did you or did you not tell her that you took a note?

Mr Kekana: Let me just refer to my notes. Can you be a little patient with me?

Adv Mpofu: Yes, take your time.

Chairperson: Okay, take your time.

Adv Mpofu: Are you still with us, Mr Kekana?

Chairperson: Ja. He is just checking through his notes.

Mr Kekana: Chair, on my notes for the consultations that we had, I don't see that point on my notes.

Adv Mpofu: Yes, thank you. No, I believe that. I mean, it would be odd to find it on your notes, what would you write? ‘I told Adv Bawa I took notes’? That's not what I'm asking. I'm asking you from your memory, not from your notes. Did you or did you not? I'm putting it to you that you must have told her.

Mr Kekana: Chair I can't remember.

Chairperson: Okay.

Adv Mpofu: That's fine. I'll move on. But I do that… again, you're evading a very simple issue. Which I can understand when you say, what did you call it, impaired memory about things that might have happened a few years ago. That's natural. But not something that happened yesterday or in the last week or so. But fine, let's move on. Alright, I've already told the Chair that the actual content of the note will be sent to you. I'll send it to Adv Bawa, who will find a way to send it to you then we'll discuss it tomorrow. Okay?

Mr Kekana: Sure.

Adv Mpofu: You agree that… Okay Chairperson?

Chairperson: You seem to be having cars around you?

Adv Mpofu: No, Chairperson, I just wanted to assure you, since you like accusing me of things, that I don’t have a car in my office.

Chairperson: Okay proceed.

Adv Mpofu: Thank you. Now, Mr Kekana, the… you'd agree that in the language of the Public Protector’s Office, which I'm sure you're familiar with, an implicated person means a person whose conduct is being investigated, correct?

Mr Kekana: Yes, that's correct.

Adv Mpofu: And whose conduct is being investigated in respect of the violation of one of the items listed in Section 6 of the Public Protector Act, correct?

Mr Kekana: Yes, that's correct.

Adv Mpofu: And by the way, the list of… I think the car…

Chairperson: Okay don’t get disturbed Adv Mpofu. I think there might be a possibility that the office is closer to parking. So let’s just take that in.

Adv Mpofu: Yes, I think it is. It showed that the hooting came from Mr Kekana’s side but it's probably on the street somewhere.

Chairperson: I won't take you on that accusation. But let's proceed.

Adv Mpofu: Is the hooting from your side Mr Kekana?

Mr Kekana: That’s correct Chair. I think our parking Chair.

Chairperson: Yes. Thank you.

Adv Mpofu: Thank you. In case I get accused by the Chair of accusing you in vain. No, that's fine. We'll ignore that car. Now, you would agree with me that the SSA was being consulted, as you and I have discussed before, not as an implicated party? In other words, not because their conduct had violated Section 6, correct?

Mr Kekana: No, that's incorrect.

Adv Mpofu: So in connection with this matter, their conduct had violated an item in Section 6, correct? According to you?

Mr Kekana: Well, Chair it… we had to investigate the conduct in relation to the incidents that happened around the investigation.

Adv Mpofu: No, Mr Kekana. You and I agreed that you were talking to them, as did Adv Madonsela, because they were what I call the owners of the signatories of the agreement. That's number one also because there might have been issues – I've put to you – around stability and security. I know you did not agree with that proposition, but not because their conduct per se was being investigated. In other words, they were not… If you talk about ABSA, for example, that was an implicated party, correct?

Mr Kekana: Yes, it was.

Adv Mpofu: Yes. As opposed to a party like ABSA, SSA were not… it was not their conduct or misconduct or alleged improper conduct on their part that was being investigated. That's obvious, correct?

Mr Kekana: There was some conduct that was investigated on their part, especially in regards to ascertain whether they did enter into an agreement with CIEX, what did they do; especially regarding the implementation or the monitoring of that contract.

Adv Mpofu: Yes, but entering into an agreement is not listed in Section 6 of the Public Protector Act. It's not misconduct, agreed?

Mr Kekana: It depends on which context you put it; I’m not sure what context you are putting in because sometimes even when you enter into a contract, you might find that the contract is invalid. So it might lead to improper conduct.

Adv Mpofu: If a contract is invalid, it's improper conduct in terms of the Public Protector Act? Is that your evidence?

Mr Kekana: No, that's not my evidence. My evidence is if you find conduct that would lead to improper conduct or improper contract entered into by parties that could lead to improper conduct.

Adv Mpofu: Yes. Okay. In theory, yeah, like, maybe there's forgery or whatever. But in this particular case, I'm saying the SSA was not an implicated party in the sense of their own conduct being under investigation, you must agree with that? You were there.

Mr Kekana: According to my view, they were an implicated party.

Adv Mpofu: Why?

Mr Kekana: Because they were the ones that signed the contract. They were the ones that should have made sure that that contract had value for money.

Adv Mpofu: Alright. So they were being accused by whom of misconduct?

Mr Kekana: Sorry?

Adv Mpofu: Okay. If you are saying they were implicated, who implicated them? In what?

Mr Kekana. Well in the complaint itself. I think the complainant, if I remember well, did indicate that the SSA did enter into a contract with CIEX Ltd. The contract was never fulfilled or their reports by CIEX was never fulfilled. So they were implicated in a sense, according to my view, that they also had to follow up on the CIEX reports.

Adv Mpofu: Okay, so CIEX… so the mere fact that they entered into the contract, according to you, made them an implicated party?

Mr Kekana: Yes, they knew of the circumstances which emanated or culminated into the CIEX report.

Adv Mpofu: Yes, CIEX must also have been an implicated party, then?

Mr Kekana: No. They were not the point of our investigations then.

Adv Mpofu: Did you, in any meeting that you went to… was it ever put to SSA that they were under investigation for neglecting the implementation of the contract? Was that ever put to anyone; that accusation?

Mr Kekana: Well, in the meeting that we had in May, we were supposed to put those allegations before them; they simply were never put.

Adv Mpofu: They were never put?

Mr Kekana: No.

Adv Mpofu: From the way the meeting was conducted, they were not treated as an implicated party, correct?

Mr Kekana: Yeah, it appeared that the meeting just culminated into a discussion on past events.

Adv Mpofu: Yes, did you find that odd?

Mr Kekana, Yeah, because we didn't discuss anything relevant to the investigation per se.

Adv Mpofu: And when they left… After they left, did you say to someone ‘That was odd. Why did we not put the accusations to them?’.

Mr Kekana: I’m not so sure if I told anybody about that, but at the end of the meeting, they did promise to give us a written submission on the account of events.

Adv Mpofu: Alright. Are you aware of the fact that the Public Protector was of the view that this was not an investigative meeting, as I've explained to you, because this was not an implicated party, but it was a meeting just to get the background since the notes or the account of the meeting from Adv Madonsela were missing. Or rather, let me put it like this, that will be her version. What have you got to say about it?

Mr Kekana: I was not aware of that.

Adv Mpofu: Can you dispute it?

Mr Kekana: What I can safely say, Chair, is that, according to my view, it was an investigative meeting. Because before that meeting transpired, I had prepared some questions for the department to answer which would be asked by the PP in relation to the investigation.

Adv Mpofu: Okay, also according to you, SSA was an implicated party, correct?

Mr Kekana: Yes.

Adv Mpofu: Alright. Okay, just for the record, we're gonna dispute that. That's fine. You don't even have to comment. Now… you said that in this meeting… Was there anything else that you found odd in the meeting?

Mr Kekana: Well, apart from the fact that I was instructed not to make a record, I also found it odd that the Public Protector did not touch or even raise the questions that I had prepared for the SSA.

Adv Mpofu: Yes, again, for that particular oddity, did you raise it with anyone after the meeting?

Mr Kekana: I don't think I did.

Adv Mpofu: You did not? Okay. Even as a whistleblower?

Mr Kekana: Can you repeat the question?

Adv Mpofu: I'm saying you did not blow the whistle on that particular oddity?

Mr Kekana: Relating to what? Relating to the questions?

Adv Mpofu: Anything.

Mr Kekana: I did put that oddity in my paragraph 20 regarding the recordals.

Adv Mpofu: Yes, that's two and a half years later. I'm saying at the time in 2017, you did not raise the oddity with anybody, correct?

Mr Kekana: No, I don’t remember doing that.

Adv Mpofu: You did not raise it with anybody, Mr Kekana. Simple question?

Mr Kekana: Chair, as I indicated, I don't remember doing that.

Adv Mpofu: If you did, you would remember, correct?

Mr Kekana: I might remember, Chair.

Adv Mpofu: Yes. That's another oblique answer. I will argue you at the end. Right. Now, you said… excuse me, nowhere in that meeting was a decision – this was put to you by Adv Bawa – nowhere in the meeting was there a decision to nationalise the Reserve Bank?

Mr Kekana: No, I don't remember talk about that.

Adv Mpofu: You don't remember what? You don't remember the question put by Av Bawa or the discussion about nationalisation?

Mr Kekana: The discussion about nationalisation Chair.

Adv Mpofu: Yes. Where does that come from? Who said anything about nationalisation?

Mr Kekana: Chair, as I indicated, the PP did indicate to me about nationalisation and amendment of the Constitution.

Adv Mpofu: What happened to that? The PP will deny that she discussed with you nationalisation. What does that even mean?

Mr Kekana: Well…

Adv Mpofu: Do you know what nationalisation means?

Mr Kekana: From what I recall in our discussion, she indicated that we should proceed with amendments for… or to cater for the nationalisation of the South African Reserve Bank; that we should also see how we can amend the Constitution to cater for that.

Adv Mpofu: And was that done eventually?

Mr Kekana: Yes, eventually, that was reflected in our final report.

Adv Mpofu: Do you know what nationalisation means?

Mr Kekana: I welcome your description.

Adv Mpofu: No, I don’t have a description. You're the one who put the words in your statement. You said that you were asked to put… to cater for nationalisation of the Reserve Bank now you've even gone further to say you actually did so. So surely, you know what nationalisation means?

Mr Kekana: Well, a general description for me relating to nationalisation will be some entity that will be wholly owned by the state and the state having a prominent decision-making… how can I put it, authority to direct that entity.

Adv Mpofu: So that's what the Public Protector asked you to do, you must put something… the South African Reserve Bank must be wholly owned by the South African government, correct?

Mr Kekana: No, I just described to you what I'm thinking what nationalisation means.

Adv Mpofu: Yes I'm using your description. So therefore, that's what we must understand. When you say the Public Protector asked you to cater for nationalisation, we must understand that she asked you to cater for, that the South African Reserve Bank must be wholly owned by the state, correct?

Mr Kekana: What the Public Protector instructed me to do in regards to the nationalisation and the amendment of the Constitution, even today, I don't understand why or what she meant by it. So I inserted in the report what she requested me to do.

Adv Mpofu: No, Mr Kekana. Please, please. This is a very serious process here. You've just testified that you, in compliance with the instruction made, said that the Public Protector’s demand on nationalisation found its way into the report, correct?

Mr Kekana: That's correct.

Adv Mpofu: Now, I'm saying that which found its way into the report, according to your definition, must have been the nationalisation of the Reserve Bank. In other words, to cater for it to be wholly owned by the state, according to your definition, correct?

Mr Kekana: Well, I just indicated to you, counsel, what… at the top of my head would describe what nationalisation meant but I don't know what the motives of the PP indicating to me that I should include nationalisation and amendment of the Constitution. I just didn't know at the time what motives inform this or how did she mean it. All that I did was that I acted according to instructions and inserted those things.

Adv Mpofu: So you complied with her instruction?

Mr Kekana: Complied.

Adv Mpofu: Yes, that's the point. If you complied with the instruction, then you must have known what it means. Otherwise you would have said ‘what do you mean, Mam? What do you mean by that?’.

Mr Kekana: No, I didn’t know.

Adv Mpoful: But you wanted to comply?

Mr Kekana: I complied.

Adv Mpofu: You wanted to comply?

Mr Kekana: I don't understand what do you mean ‘I wanted to comply’ because I complied.

Adv Mpofu: Okay, you complied willingly? No, that’s fine. You complied willingly?

Mr Kekana: Yeah, initially, I think especially in regards to the amendment of the Constitution. I did indicate to her that it wasn't a feasible or a proper thing to do. But I got some dissent from her; and I did as I was instructed.

Adv Mpofu: Yes, we'll come to that. We're still on nationalisation. You complied with the nationalisation instruction?

Mr Kekana: Yeah, I complied.

Adv Mpofu: Okay. But you didn't know what you were complying with?

Mr Kekana: No, I really didn't know what I was complying with.

Adv Mpofu: So how did you comply with something you don’t know?

Mr Kekana: Well, I drafted the final report. So I inserted keywords or inputs that we received from people that dealt with nationalisation, but I still didn't understand the relevancy or the meaning of it in our investigation; how it applied in our investigation.

Adv Mpofu: Okay. I put it to you that there was no instruction on nationalisation, in fact, there was no compliance with such a nonexistent instruction, because there's nothing to do with nationalisation in the report. What do you say to that?

Mr Kekana: Chair, I put it to counsel I was there and that’s the truth.

Adv Mpofu: But we can read, Mr Kekana. You don't have to be there or not. I'm telling you that the report now, not whether you were there or not, has got nothing to do with nationalisation. Do you dispute that?

Mr Kekana: Chair, I dispute that.

Adv Mpofu: Okay. Which part of the report caters for nationalisation? Your report?

Mr Kekana: I don't have the report with me.

Adv Mpofu: Okay. Fine. You can read it overnight then tomorrow morning you must tell me which part of it deals with nationalisation. Okay?

Mr Kekana: Okay.

Adv Mpofu: Thank you. Okay, so your homework is two now: it's nationalisation and the other one is the notes that you took of the 3 May meeting. Okay? Alright. Now, you had a meeting with Mr Goodson? Correct?

Mr Kekana: That's correct.

Adv Mpofu: And Mr Goodson was a person with extensive knowledge in the Reserve Bank… Sorry, I don't want to misrepresent your evidence – in the Reserve Bank and central banks in general, correct?

Mr Kekana: Which paragraph is that?

Adv Mpofu: No, it's not a paragraph. It's what you said when you are being asked questions by… My question is based on what you said when you were being asked questions by Ms Bawa. I don't know if it came from a paragraph or just from a question from her. But it's just from your evidence of this morning.

Mr Kekana: Chair, I remember indicating that I knew of Mr Steven Goodson as an economist, but later on, I discovered that that was not true.

Adv Mpofu: No, Mr Kekana. Please assist us. I've got a note here. You must tell me if it's wrong, that you testified that a meeting took place in Cape Town with Mr Goodson and he was a person with knowledge of the South African Reserve Bank and central banking in general. Did you testify to that effect this morning?

Mr Kekana: No, I didn't.

Chairperson: Just a pause, Adv Mpofu. Adv Bawa?

Adv Bawa: Sorry Mr Mpofu, if I can correct it. I put it to the witness this morning, reading off an email which was at 1173.

Adv Mpofu: Yes, actually, thank you, Ms Bawa. That’s exactly… I’ve got 1173 next to this note. Mr Goodson was introduced as someone with knowledge of the South African Reserve Bank and central banking in general, correct?

Mr Kekana: Yes, I was informed that he was an economist.

Adv Mpofu: No, we're coming to the economist, Mr Kekana, please. Were you informed that… Did anyone ever present him to you as someone with knowledge of the South African Reserve Bank and central banking in general? Anybody?

Mr Kekana: I don't recall that.

Adv Mpofu: Okay, and that means the document at 1173 you’ve never seen it?

Mr Kekana: Can you show me that document? Maybe it might refresh my memory.

Adv Mpofu: Yes. Let me ask… I'll ask for the kind assistance of Ms Bawa.

Mr Kekana: Oh yes, I do recall that I was informed that Mr Goodson had knowledge of…

Adv Mpofu: “Extensive knowledge of the South African reserve bank and central banks in general”. You were told that?

Mr Kekana: Yes I was informed that.

Adv Mpofu: In fact, you wrote that yourself? Correct?

Mr Kekana: Yes. Yes. After being told.

Adv Mpofu: Mr Kekana, I'm not saying that you were born without knowledge. I'm saying you wrote to the gentleman, that do…this was after you read this book, correct?

Mr Kekana: I'm not so sure when I read his book.

Adv Mpofu: It's possible that this was after you read this book?

Mr Kekana: Or even before.

Adv Mpofu: Yes, it might be before but it might also be after, correct?

Mr Kekana: It might.

Adv Mpofu: Yes, I'm saying so if it was after, then you… this would have been your view – excuse me – that, ‘due to his extensive knowledge of the Reserve Bank and central banks in general, the Public Protector wished to meet with you’. Correct?

Mr Kekana: No…

Adv Mpofu: We’ve established… sorry Mr Kekana, I don’t want to cut you. I'm saying we've established that you wrote those words. I’m simply now exploring where they came from. Sorry.

Mr Kekana: Chair, I do confirm that I wrote the note.

Adv Mpofu: Okay. Thank you very much. Now the Public Protector will say to you rather, not you, to the tribunal, rather to the Committee, that from her understanding of this gentleman's expertise, it was exactly like that, that he had extensive knowledge on issues of reserve banks and central banks in general. She was therefore under the impression that he's an economist, but it didn't mean that she had seen his degree certificate. She meant an economist in those general terms. You can’t dispute that, correct?

Mr Kekana: Chair, I don't have a view on that.

Adv Mpofu: You cannot dispute it, Mr Kekana. Can you?

Mr Kekana: And I don't have a view on that.

Adv Mpofu: Mr Kekana, please answer the question therefore you cannot dispute it or confirm it correct?

Mr Kekana: Chair, I've indicated my answer. I don't know. I don't have a view on that.

Adv Mpofu: Yes.

Chairperson: Okay.

Adv Mpofu: It might be so or might not be so. Correct?

Mr Kekana: Chair, I don't have a view on that, Chair.

Adv Mpofu: Yeah. Alright. Chair, I'll move on. The witness is completely evading a simple matter. The issue, I'm saying… Okay, I am not going to repeat the question. Okay, let me put it like this Mr Kekana. You know, that, for example, the term lawyer can be used strictly for a practising lawyer, or loosely?

Mr Kekana: If you say that, counsel.

Adv Mpofu: Yes, I’m asking you as a lawyer. I mean, for example, there are people who say that the President of this country is a lawyer, but we know he's not a lawyer. He studied law…maybe. Sometimes it's used loosely; that term. If I say a lawyer, it could mean a practising lawyer; it could mean someone who went to law school; it could mean an attorney, it could mean an advocate; it could even mean a professor of law. Do you understand what I am saying?

Chairperson: Just a pause before you respond Mr Kekana. Hon Gondwe?

Ms Gondwe: Adv Mpofu, through you, Chairperson. It's either you're an economist or you're not an economist. It’s either you're qualified as an economist or not qualified as an economist. So I'm trying to understand, you know, what you're trying to ask the witness?

Adv Mpofu: Yeah, I think it's better if the witness answers the question, Chair. I'm making an example. It's true. it's either… As I'm saying, it's either you a lawyer, or not a lawyer or a qualified lawyer, or not a qualified lawyer. That's exactly the point. The fact that you have to use an adjective, like practising or qualified, means that the adjective describes the noun, the noun is the general term. So if I say it's a car, that's a noun, but when I say it's a red car, then it's an adjective with a noun. That's exactly the point I'm trying to get to, Hon Gondwe.

Chairperson: Thank you Adv Mpofu. Thank you. Mr Kekana?

Adv Mpofu: Thank you, Chair.

Mr Kekana: Chair. Yes Chair, I’m listening, Chair.

Chairperson: Okay, Adv Mpofu, can you just quickly…

Adv Mpofu: Let me round it off Chair. I’m sorry to interrupt you. Let me just try and simplify it. Mr Kekana, I was just using the lawyer thing because you are a lawyer yourself. I'm saying that… So you might be more familiar with it. So you might agree that someone is a lawyer could mean the different things that I have just described?

Mr Kekana: Yes loosely, I might agree with you on that.

Adv Mpofu: Well, why don’t you just agree with me, Mr Kekana? Because I'm saying as a lawyer yourself, you know that that is a generic description which could fit four or five different categories of people, including someone who just studied law or even a junior degree in law being described in books as a lawyer?

Mr Kekana: Chair, I will agree with that.

Adv Mpofu: Thank you, therefore, you cannot dispute that was the sense in which the Public Protector was using the term economist for this person who had extensive experience in central banks and the Reserve Bank and even written books on those subjects, you can’t dispute that. In any event, that would be her evidence.

Mr Kekana: Chair, I don't know what sense the PP had in relation to Mr Goodson’s credentials.

Adv Mpofu: Good. Thank you. That’s fine you, yourself, having read the book; you are not surprised that he is somebody who knows economics?

Mr Kekana: Sorry, I wasn't surprised at what?

Adv Mpofu: No, having read his book and having met him, you would not be surprised if he is described as someone who knows economics?

Mr Kekana: Well, I wouldn't know, I really wouldn't know.

Adv Mpofu: Okay, maybe that's because you don't know economics yourself. But if…

Mr Kekana: That’s right.

Adv Mpofu: Yeah it's possible; neither do I. But I'm saying if you… when you read his books, would you say that he was someone who was discussing economic issues? Maybe let me put it that way.

Mr Kekana: Yeah, I might say that. Yes. He was discussing economic and banking issues.

Adv Mpofu: Yes. Thank you very much. You are also aware that there was some research, which was also done, which involved views of economists, even outside of South Africa?

Mr Kekana: I'm not so sure what you're referring to?

Adv Mpofu: Alright. There was some research… sorry I’m just checking my notes to see if this was part of the Rule 53 record. There was some research which was done under the auspices of the Public Protector’s Office regarding some kind of comparative study for local and mainly international economic positions in different countries – and Reserve Banks.

Mr Kekana: Chair, I remember that but not that much. I do remember there was some kind of document that we had talking about that, but I don't remember that clearly.

Adv Mpofu: Yes, no, it's fine. I'll refresh your memory. I understand Mr Kekana, it was some time ago.

Chairperson: Yes, yes. Maybe Adv Mpofu, on that note, I'm going to request you to pause so that they prepare your papers properly for you. They don’t disturb you.

Adv Mpofu: No, no I’m fine, Chair. When I do this, I call for the document and then it's brought to me.

Chairperson: Yes, you’ve interrupted me.

Adv Mpofu: Oh sorry Chairperson. No, I was just saying, if you want to have a break, don't have it on my account. I've got my document there.

Chairperson: It's not on your account. The Committee is now going to pause for the day. Our programme took us to five o'clock we'll pause here and return tomorrow at 10 I would like that, both yourself and Adv Bawa will share some notes so that I know your morning slots because tomorrow. I would not repeat the mistake of Friday where Members would not…would have limited time for asking questions. I want us to pause there and resume tomorrow morning. I see your hand. I see your hand. So you want to say something?

Adv Mpofu: With your indulgence, I just want to put one proposition…

Chairperson: No problem, go ahead.

Adv Mpofu: Thanks. I'm indebted to you, Chairperson, and this is just for the benefit so that it adds to the homework. Otherwise, we might have to… Mr Kekana?

Mr Kekana: Yes, I’m here.

Adv Mpofu: Yes, the document I'm referring you to so that you can look at it overnight as well on top of the other two items, is headed “Public Protector’s observations on constitutional principles applicable to the independence and governance of the South African Reserve Bank and proposals for the review of section 223 to 225 of the Constitution”. It's a document that would have been available to you. But just to jog your memory, it was… sorry, no, I can't find the actual email, but you know what I am talking about? Does that assist? I just want you to… if you can get hold of it to look at it overnight. Otherwise, I'll send it over to Adv Bawa as well. But do you know generally the document I'm talking about?

Mr Kekana: I can't recall. I would like to request that maybe it be sent to me.

Adv Mpofu: Okay. The research was done by Mr Neels van der Merwe. That might assist you, do you recall now?

Mr Kekana: I do remember getting some inputs from Mr Neels van der Merwe before the final report and after the final report. I’m not so sure which document you are referring to.

Adv Mpofu: That's fine. That's good enough. Thank you, Chairperson. We will send it through and we'll discuss it tomorrow.

Chairperson: Okay, thank you, Adv Mpofu. Thank you Mr Kekana. Thank you Members and everybody else. The hearing is now adjourned. We'll resume tomorrow at 10. Thank you.

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