PP Inquiry day 7: Tebogo Kekana (Subpoenaed Witness)
Committee on Section 194 Enquiry
19 July 2022
Chairperson: Mr Q Dyantyi (ANC)
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
Terms of reference adopted by Committee on 22 February 2022 which may be amended from time to time
The Committee for the Section 194 Impeachment Inquiry met in a hybrid format with the Chairperson, the Public Protector, her defence team and the evidence leaders, as well as some Committee Members physically in attendance in Parliament and other Members on the virtual platform.
It was the second day on the stand for the witness, Tebogo Kholofelo Kekana, who had worked in the Office of the Public Protector. The engagement was relatively adversarial during the first half of the day that the witness spent under cross-examination from the Public Protector’s legal team, and which extended beyond the allocated time, resulting in the Committee sitting until well into the evening. Members of the Committee also posed questions to the witness.
The evidence leader informed the Committee that the witness was a reluctant witness, partially due to concern about his privacy and the fact that he could no longer recall all the details from 2017 when he worked in the private office of the Public Protector on the CIEX investigation and later when, as a member of the provincial team, he worked on the Vrede Dairy investigation. The evidence leader had applied for a subpoena but had made contact with the witness who agreed to testify without having the subpoena served on him. However, the late agreement to testify and the fact that he was no longer in possession of documentation from the Office of the Public Protector meant that there were questions about which he was unable to provide details.
The Public Protector legal team questioned his lack of memory and the fact that he had been dismissed from the Office of the Public Protector for unauthorised distribution of documents, having possibly been dishonest about certain matters. The legal team put several questions to him to establish whether he was a credible witness or a disgruntled former employee, but he would not be drawn into details of his case. His case is pending before the Labour Court, which limited some of the interaction. The status of what he claimed was a protected disclosure in 2019 was disputed by the legal team. The witness was also questioned extensively on a note that he wrote about the meeting between the Public Protector, the then Minister of Intelligence and DG of then Department of Intelligence as the Public Protector legal team disputed his version of discussions that took place in that meeting.
Members were interested to hear the witness was in the meeting at which he said the State Security Agency handed over the wording for the Amendment to the Constitution contained in the Public Protector’s remedial action in the CIEX case. The evidence leader indicated that News24 had obtained confirmation of the meeting, at which the Amendment was allegedly handed over, from the relevant official in the State Security Agency who had attended the meeting. Discussion also revolved around which of the role players had been the economic experts that the Public Protector said she had relied on in the South African Reserve Bank (SARB) matter and the decision that the Bank needed to be nationalised. The names of Ramos, Mboweni, Marcus and Stephen Goodson as well as a Mr Moodley were raised. Members interrogated the difference between a citizen suggesting the need for a constitutional amendment and the inclusion of a constitutional amendment in the Public Protector’s remedial action.
The Public Protector legal team spent considerable time on whether documents were quality assured, what constituted quality assurance and who was responsible for the final quality assurance of documents. Email correspondence between the witness and the Public Protector was provided as evidence of the Public Protector instructing her staff to quality assure while the witness pointed out that he stated in his email that the head of the Quality Assurance unit had not seen the final version of the report.
Members were also interested in the statement by the witness that he had been instructed to remove any adverse findings about politicians implicated in the Vrede Dairy case. Although initially intending to use the #GuptaLeaks in investigating the case, he was instructed not to do so as the emails might have been unreliable. Questions focussed on whether the instructions from the senior executive in the Office of the Public Protector emanated from the Public Protector or not. The witness informed Members that one of the investigators was removed from the case as she was allegedly a member of the Democratic Alliance, which party had initially laid the complaint about the Vrede Dairy.
The Public Protector legal team laid a formal complaint that the Public Protector was obliged, in terms of the Committee directives, to answer questions posed by the Committee within five to seven days as that would reveal answers to witnesses who had not yet testified.
The Committee's next hearing is 27 July 2022 as the Public Protector is due to appear in the Western Cape High Court on 25 and 26 July 2022. The legal team cautioned that the High Court case might run to three days.
Chairperson: Today we continue with cross-examination of the witness, Mr Tebogo Kekana. We will allow the Public Protector’s team to continue with their cross examination.
Cross examination of Tebogo Kekana (continued)
Adv Mpofu: Mr Kekana, we stopped at a place where I was reminding you about the inputs from Mr Neels van der Merwe [Public Protector Manager: Knowledge Management & Legal Research]. You said that he gave you some inputs, both before and after the report. You remember that?
Mr Kekana: That is correct.
Adv Mpofu: And in fact, it is correct that Mr Neels van der Merwe and you had been interacting in the process of the investigation. He came with you to Absa, for example, is that correct? When you went to ABSA, was he not part of your team that went with you?
Mr Kekana: I do not recall. I recall going to the Absa Bank attorneys. Is that what you mean? I recall going there with Mr Mataboge? I do not recall going there with Mr van der Merwe.
Adv Mpofu: Okay, but he might have been there, maybe because you were visiting the legal team. I am saying that he might have been there. You can accept that. I am saying that he might have been there. Maybe because you were visiting the legal team, the attorneys of the other side that you do not remember?
Mr Kekana: I do not recall whether it was so.
Adv Mpofu: Okay. Anyway, the point was really that you were aware that he was doing some research and he was providing some constant input. He gave you something before and after the report, correct?
Mr Kekana: Yes. The Public Protector requested some input from him on a number of issues.
Adv Mpofu: Yes. It is not such a big thing. I just wondered. Did you get a copy of the paper that he prepared?
Mr Kekana: Yes, I got it this morning…
Adv Mpofu: Now. Do you remember now? I accept that this was a long time ago when you could not remember this. I am not holding it against you. But has that now jolted your memory as to the nature of his input?
Mr Kekana: Yes, I remember he sent a document of this sort.
Adv Mpofu: The only point I want to make of this is that the document was giving what one might call a broad economic analysis and comparative study of different economic models in different countries pertaining to reserve banks. Would that be a fair summary?
Mr Kekana: I am not so sure. It looked to me. As I said before, I am not an economist. But it looked to me as if it was some sort of comparative study.
Mr K Mileham (DA) I am sorry to interrupt the cross examination, but we do not have a copy of this document. We do not know what is being referred to here. I think that it would be useful if we could see that.
Adv Mpofu: Yes. I am sure the evidence leaders will put it up.
Adv Mpofu: If you can start by putting up just the cover page, please.
Adv Mpofu: In fact, this is relevant. Mr Kekana, is it correct that you did the highlighting in that document?
Mr Kekana: I am not sure about that.
Adv Mpofu: Okay, well, again, I will not hold that against you. But you sent that document to the Public Protector, I think on the 20 June and you brought to her attention the parts that were highlighted. And if that helps you to remember, I am simply confirming that those highlights were made by you.
Mr Kekana: I think if you can show me so that I can confirm that.
Adv Mpofu: Okay. I am hoping that when it comes on the screen, you can see the highlights.
Adv Mpofu: There is an email from you, which says, "Hi PP find a first draft from Neels - I highlighted relevant parts". You do not dispute that. I am just saying it is from you. That is not the big issue. The big issue is that you highlighted the relevant parts yourself.
Mr Kekana: I cannot recall it
Adv Mpofu: Is it possible that that is what you did.
Chairperson: Just a pause.
Adv Bawa: Sorry. Mr Mpofu, I don’t want to interrupt you, but could we please ask as we do not have that email. We have not really made a fuss about documents. But it would help if we were getting documents before you relied on them.
Adv Mpofu: I do not know how that witness is going to answer questions beforehand. So some documents will arise from questions as well, as happens in any cross examination. I have done my best to give you what I can beforehand.
Chairperson: Okay, but are you able to share that document?
Adv Mpofu: I phoned Ms Bawa and gave the reason the document was delayed.
Chairperson: Okay, okay.
Adv Bawa: I am not objecting about the document you sent earlier this morning and to which you refer, but you are reading from a document that we actually have not seen.
Chairperson: Okay. Did you get that?
Adv Mpofu: That is fine. I shall send it to her as we proceed. Mr Kekana, the purpose of this is to use this document to maybe bring back some of your memory. That is the heading of the document. You will remember that.
Mr Kekana: Not that clearly. But I do remember this document, just not that clearly.
Adv Mpofu: Well, that is fine. I am putting the document on my screen - the version of the document that I have, just to show you the underlining.
Chairperson: I see what you have underlined in yellow.
Adv Mpofu: No, that is not me. That was Mr Kekana. Does that assist you?
Mr Kekana: As I indicated, I do not recall highlighting it.
Adv Mpofu: Okay, fine. Let me read it to you. The part highlighted says, “As far back as 2008, the parliamentary task team for oversight and accountability in regard to the Oversight and Accountability Model noted that the Reserve Bank of 1989, as well as section 223 and 225 of the Constitution are not sufficiently aligned to the constitutional requirements for mechanisms on oversight, inter alia section 42 and 55 of the Constitution, as well as the relevant constitutional provisions that refer directly and indirectly to oversight and accountability to enable the National Assembly to effectively maintain oversight over the South African Reserve Bank as well as the relevant responsibilities of the Minister of Finance”. You might not see the highlighting, but that is what is in the document, probably on your screen. Agreed?
Mr Kekana: Yes, I think I followed what you read.
Adv Mpofu: The next part that you highlighted was 1.2, “the Public Protector’s experience and observations on the current governance arrangements relating to the Reserve Bank confirm that it is necessary to reflect on the constitutional principles applicable to a fully-fledged central bank within the economic context of our country and the needs of our democratic society”. Do you see that part?
Mr Kekana: Yes, I see it.
Adv Mpofu: The next part which you highlighted says: “The South African Reserve Bank and seven other central banks - Belgium, Greece, Italy, Japan, Switzerland, Turkey and the US - have shareholders other than government of their respective countries. The South African Reserve Bank list its shares on the Johannesburg Stock Exchange and currently the shares are held by more than 650 shareholders composed of companies, institutions and private citizens”. Do you see that part?
Mr Kekana: Yes, I do see.
Adv Mpofu: You also highlighted 2.5 which says: “One of the disadvantages of central banks established under company law is that factors that should be indicative of corporate governance, such as social pressures, the interests of the public and the impact on economic return and the long run sustainability of the company have to compete with shareholder value which links corporate interests primarily to those of the shareholders". Do you see that?
Mr Kekana: Yes, I do.
Adv Mpofu: The last part that you highlighted is 3.2. I see that the highlighting is reflected on the screen. Can see that Mr Kekana?
Mr Kekana: I actually opened a separate document. So I am following you as you read the paragraphs
Adv Mpofu: Thank you very much. I was under the impression that the highlighting was not visible to the Honourable Members. But now I can see that and it helps me a lot. So the next highlighting is there: “Moreover, the Financial Stability Policy unlike monetary policy is subject to very strong pressure from vested interests, especially the financial industry, which has effective means to advances interests.” The next key point for our business is 3.5. “At the same time, it is added that in democracies all power is delegated power, and the Parliament is free to make any decisions that it wishes and the independence of the central bank can never be absolute”. Then, let us jump to 3.6: “Monetary policy in the traditional national sense includes balancing Parliament and the government on the one hand and the central bank on the other. German Constitutional Court case - most of the management monetary policy on an automatic basis in the hands of an independent central bank restricts democratic legitimacy, and therefore affects the principle of democracy, according to the Constitutional Court. It is acceptable, as it took account of the point mentioned that an independent central bank is a better guarantee of the value of the currency.” The other piece is long - it is at 4.3.4. “In about 150 countries, the law provides for government or Parliament to give directives to the central bank and sets rules around the procedure to be followed. Examples of such mechanisms are to be found in Australia, Canada, New Zealand, and Norway,” and so on and so on. The only point I want to make is that this was a quite a serious comparative study in economic models pertaining to reserve banks in other jurisdictions. You would agree with that summary? Correct?
Mr Kekana: As I indicated, it seems as if it was a comparative study.
Adv Mpofu: I know, it was a competitive study. I am asking you something different - that it was a thorough analysis of the economic models, particularly in relation to the constitutional regimes of reserve banks in other countries, as compared to ours. Correct?
Mr Kekana: I would agree.
Adv Mpofu: So this is not consistent with your theory that all this issue about constitutional amendment simply came from the State Security Agency (SSA) is it?
Mr Kekana: I do not understand your question.
Adv Mpofu: This amount of work was done within the Public Protector’s Office itself, and is not consistent with your theory that the whole issue of constitutional amendment simply came from the SSA and not from the Public Protector.
Mr Kekana: I never said the theory of amending the Constitution came from the SSA. I indicated that the SSA gave us a note which contained a draft Amendment of the Constitution.
Adv Mpofu: Okay. I see. So you never said the recommendation to change the Constitution came from the SSA.
Mr Kekana: I said the recommendation that was provided to us came from the SSA.
Adv Mpofu: By that you meant just a piece of paper? Or did you mean the recommendation itself?
Mr Kekana: That piece of paper.
Adv Mpofu: Oh, I see, and the idea?
Mr Kekana: The idea from what I know, according to my personal knowledge, always came from the Public Protector.
Adv Mpofu: So, thank you. That is a major breakthrough. So you accept that the idea was generated by, among other things, by the interactions you had with Mr Goodson? Correct?
Mr Kekana: I would not know what the motive for the idea would be.
Adv Mpofu: I am not talking about motives. Mr Kekana. I am saying that the idea was influenced by your interactions, you and Mr Goodson.
Mr Kekana: I do not know.
Adv Mpofu: Did Mr Goodson not talk about this idea in your discussions with him or in reading his book?
Mr Kekana: Yes, we did talk about that. Yes.
Adv Mpofu: So why is it so difficult to accept the obvious that those discussions were not just for fun and that they played a role in shaping the idea?
Mr Kekana: From my personal knowledge, the idea came even before we discussed it with Mr Goodson, sir.
Adv Mpofu: Yes, but then what would have been the point? Let us assume it came even before, but it was also influenced by those discussions, otherwise, why have discussions if you were set in your ways?
Mr Kekana: According to my personal knowledge I would not know about influence, but what I know is that the Public Protector needed Mr Goodson’s assistance in the matter, and he provided us with inputs.
Adv Mpofu: Good, that is good enough. So it can then be said that the idea mainly emanated from the interactions between Mr Goodson and the Public Protector.
Mr Kekana: I do not know where they get emanated from.
Adv Mpofu: Okay, I thought you just said it came from the PP. Now you do not know.
Chairperson: Mr Kekana, can you repeat that? Because he did say that originally the idea came from the Public Protector.
Mr Kekana: That is correct. It came from the Public Protector, but I do not know what motivated the idea.
Chairperson: That is fine. Thank you.
Adv Mpofu: Chairperson, I shall not belabour the point, as long as we know that the idea did not come from the SSA, but, in fact, even if it did come from the SSA, we have established that the SSA was the lead department in the contract with CIEX. Correct?
Mr Kekana: The SSA signed the contract that year.
Adv Mpofu: If it was any other department or whatever, that signed the agreement, then you would have been interacting with that department, correct?
Mr Kekana: Yes, to find out their version or account of the investigation.
Adv Mpofu: Yes. So this idea bandied about in the media narrative is unfounded that there was something strange simply because, by coincidence, the department that signed the agreement on behalf of the Government of South Africa happened to be the Intelligence Department. Would you agree?
Mr Kekana: Can I get a repeat of the question? I don’t understand the question.
Adv Mpofu: I am saying the idea that, simply because the significant department was the Intelligence Department, the idea that there was something sinister, is actually unfounded, because you as the Public Protector had to follow the contract, so to speak. So if it had been signed by the Department of Arts and Culture, you would have been interacting with that department. But this one was signed by the Department of intelligence.
Mr Kekana: No, I do not get it. Are you saying that the idea, for the mere fact that the Department of Intelligence signed the contract with CIEX Ltd, was sinister. Is that what you are saying?
Adv Mpofu: No, no, I am saying the opposite. It was not sinister and to portray it as such is wrong.
Mr Kekana: I would not have a view about that. I do not have knowledge about that.
Adv Mpofu: That is fine. You have seen the contract between CIEX and the South African government signed by SSA?
Mr Kekana: I did see it during the investigation.
Adv Mpofu: Yes. The essence of that contract was that CIEX undertook to provide intelligence in the form of evidence to the South African government and advice in relation to various issues, including trying to recover the money that belongs to taxpayers, correct?
Mr Kekana: Yes, more or less correct.
Adv Mpofu: When this was being discussed with SSA, there would have been nothing wrong with them bringing along somebody that they regarded as an economic expert, or from the economic division. But that is also not sinister that they would have people who might have some knowledge in this area, correct?
Mr Kekana: I am not so sure in what context you are asking.
Adv Mpofu: I am asking it in the context of explaining the presence in the meeting of the principals, let us call them that, that is the Minister and Mr Arthur Fraser, as the senior people in the delegation that came to meet with the Public Protector. Am I right?
Mr Kekana: Yes. In the initial meeting or the first meeting, we had to assess the matter, the Minister was there and the Director-General and Mr James Ramabulana [senior SSA official].
Adv Mpofu: Yes, that is what I am saying. In fact, let us start with Mr Ramabulana. I am saying that if the leadership in the form of the Minister and the DG were to discuss a matter like this, they would bring somebody with more detailed knowledge, if you know what I mean, such as Mr Ramabulana, correct? There is nothing sinister in that?
Mr Kekana: People who would come generally to such a meeting would have knowledge of the aspects that we were investigating.
Adv Mpofu: Now, I am putting it to you that Mr Ramabulana and Mr [Mai] Moodley at varying levels or to varying degrees, had some input to make on this matter. You would agree with that general statement?
Mr Kekana: I am not so sure what input that would be because I actually I did not receive any input from Mr Ramabulana and from Mr Moodley. We only received the note that I mentioned in the affidavit.
Adv Mpofu: Yes. Okay. But from common sense, if the Minister and the DG bring people who are at the lower levels of the leadership of that department, to a meeting about whatever, then you would expect those people to be there to support the Minister and the DG in the particular area that is being discussed. That is why they are brought to such a meeting, just from your knowledge of life in general, and in meetings.
Mr Kekana: In general, I would suppose so.
Adv Mpofu: Right, now the evidence from the PP will be that, like you, she might not remember all the details of specific teams or who was wearing what because it was a long time ago, but that these gentlemen, Mr Moodley, in particular, was presented as some kind of economic expert, who had also worked in the South African Reserve Bank space. You cannot dispute that. Correct?
Mr Kekana: I only know that he was introduced to me as an economist.
Adv Mpofu: Yes. I know that. That is what I am getting at, Mr Kekana, why he might have been introduced to you as an economist. I am saying, and you and I spoke about it yesterday as to what that definition might entail. I am saying that you cannot dispute, whether it was said in your presence or not, that Mr Moodley had worked in the South African Reserve Bank environment.
Mr Kekana: I do not recall that.
Adv Mpofu: You cannot dispute that. He was coming from the economic unit - and do not hold me to that to that term - division or whatever, but from the economic side of the National Intelligence Agency (NIA).
Mr Kekana: I was told he was an economist from the SSA.
Adv Mpofu: Yes. Do you know that he also holds an MBA, a Masters in Business Administration?
Mr Kekana: I do not know any other personal details about Mr Moodley.
Adv Mpofu: Do you know what an MBA is? Okay. You would expect somebody who has a Masters in Business Administration to have some knowledge of economics. I am not saying that they would be professors of economics, but they would know something about economics and finance and those kinds of things. Correct?
Mr Kekana: Generally, yes. Yes.
Adv Mpofu: Thank you. Now, fortunately, we now have agreed that the idea came from the Public Protector. Evidence will be that one of the issues, and I think in fairness to you, you already had said yesterday that you could not comment on this, but I am just bringing it back for context, one of the issues that she was raising with the NIA leadership was the possible impact on economic stability of whatever would come out of this particular report. You should know that she had such concerns, at least at a general level. Do you or do not?
Mr Kekana: No, I do not recall that.
Adv Mpofu: That is fine. Fair enough. Her evidence will be, and again it might not be necessary anymore to lead you on this because you have already conceded that the idea came from the Public Protector, assisted by Mr Goodson as well as some other internal work which has been done by the likes of Mr van der Merwe in the Public Protector’s Office. But for what it is worth, what the Public Protector was really seeking from these people was to say, “This is my idea. I want to make sure that it is articulated in such a way that it does not create any instability.” it was in that context that they were asked for input. You cannot dispute that.
Mr Kekana: I do not have a view on that.
Adv Mpofu: Yes. But you are the person who was making the inquiries in your emails? Where is the input? Where is the input? Correct?
Mr Kekana: Which input are you referring to?
Adv Mpofu: The input that you were seeking from Mr Ramabulana, for example, in the emails that Ms Bawa sent to you to read? Do you remember the emails you sent asking about the whereabouts of the input?
Mr Kekana: Yes, I do remember making follow up.
Adv Mpofu: Yes. All I am saying is that the inputs that you were asking for had been sought on the basis that has just been summarised, on the part of the of the Public Protector.
Mr Kekana: Which input would that be? I am referring to the note from the SSA.
Adv Mpofu: No, input is a general thing. Mr Kekana. It could be a note, it could be a megaphone, I do not know. I am guessing that from the 'narrative', to use your word, in your email. On the 19 May 2017, you wrote a letter to Mr Ramabulana and you copied the Public Protector Adv Mkhwebane. Correct?
Mr Kekana: That is correct.
Adv Mpofu: It says, “Kindly note that this is a reminder about the promised narrative from the department”. So that is it. You cannot ask me what input. What narrative are you talking about (in the email)?
Mr Kekana: I was talking about the narrative on the whole investigation.
Adv Mpofu: No, the narrative also included the request from the Public Protector that I have just summarized. I will repeat it for your convenience, that she wanted the input to make sure that whatever she came up with, did not destabilize the country, which you have said you know nothing about, but I am telling you, I am pointing to you to what she is going to say when she testifies.
Mr Kekana: What I can recall, is that the input that we sought from Mr Ramabulana, was exactly the narrative as to the role of the SSA in the whole CIEX debacle. I do not think or I know that we were not seeking an economist’s view from Mr James Ramabulana.
Adv Mpofu: Okay, I am not talking about just Mr Ramabulana and I am telling you, as I have just explained, what the Public Protector sought from the SSA. Okay, you said you do not know about it, that is fine. But I am telling you, that is what she is going to testify. Now, I am telling you further that in the area of stability, the issue that I have just raised with you, which I am not going to explain again, when I say stability, you know what I mean? I mean, ensuring that there is no economic instability. She had asked them to assist her, to give input, so that such stability could be assured. Do you understand that?
Mr Kekana: I understand that.
Adv Mpofu: Now, and, as a result, at the next meeting this economic expert, broadly speaking as I have explained, that is someone who worked at the Reserve Bank with an MBA and so on, was brought into the second meeting. Correct?
Mr Kekana: From my understanding, the input requested from the economist was indicated to me in the email dated 17 May 2017, and that was TK3. But on the email that was just on the screen there, we were not requesting from Mr Ramabulana, an economist’s view, we were just requesting the history of the role of the SSA in the whole investigation.
Adv Mpofu: That is fine. Except that different things were being sought from Mr Ramabulana from those sought from the economist. All I am saying is that the Public Protector communicated to you that she had requested the economic input, correct?
Mr Kekana: That is correct.
Adv Mpofu: Subsequent to that, input was handed over by Mr Moody, because I do not know if it might have been generated by other people or in this department or whatever, but that input was then supplied, correct.
Mr Kekana: It was supplied.
Adv Mpofu: Thank you again, we have a situation where, according to your narrative, I am just summarising, the two things that are sought from SSA, one is what you call the narrative from Mr Ramabulana, an historical narrative about their own involvement; the second one is the economic input, correct?
Mr Kekana: No, that is not correct.
Adv Mpofu: There was no economic input from SSA?
Mr Kekana: There was a request for input from an economist but we did not get an economic input, we got a draft Amendment to the Constitution.
Adv Mpofu: Regarding the economic sector, correct?
Mr Kekana: I am saying that we got a draft Amendment.
Adv Mpofu: Okay, thank you. I am sorry. I am saying that draft Amendment did not regard health issues; it was in regard to the economic sector, issues about the Reserve Bank. Correct?
Mr Kekana: It regarded an Amendment to change the mandate of the Reserve Bank.
Adv Mpofu: Yes. Thank you. Would you classify that as an economic issue?
Mr Kekana: I would regard it as a constitutional amendment. I would not be prepared to say that it is an economic issue from my perspective.
Adv Mpofu: Are you being serious? So an issue about the mandate of the Reserve Bank, monetary policy and all these things you underlined in this document, according to you, are not economic issues? You underlined: “The Financial Stability Policy, unlike monetary policy, is subject to very strong pressure from vested interests in the financial industry.” That is not an economic issue from where you are sitting?
Mr Kekana: I do not know where counsel is reading from.
Adv Mpofu: I am reading from your underlining in 3.2 in Mr van der Merwe’s document.
Mr Kekana: What is the question about this document?
Adv Mpofu: Whether the issues that you have highlighted in that document do not relate to economic policy and economic issues.
Mr Kekana: As I indicated, I do not recall highlighting the document. I did indicate that I considered the document as a comparative economic model document or study or research.
Chairperson: Thank you for that. I think we have now established that point. Proceed.
Adv Mpofu: That is fine. Now, I will not I will not waste my time because I think it is very clear. The document speaks for itself, so it is no use trying to get Mr Kekana to agree that this so-called Amendment was dealing with economic issues. I think I shall just leave that. You therefore cannot dispute that Mr Goodson’s input was also coming from the point of view of an economic expert or an expert on central banking systems. Correct?
Mr Kekana: I do not have a view on that, Chairperson.
Adv Mpofu: Even though you spoke to him and read his book?
Mr Kekana: Yes, I spoke to him and read his book. I still do not understand the intricacies of economic principles. I do not have a view on that.
Adv Mpofu: No, this is not about you, Mr Kekana. Do you think that Mr Goodson understands the intricacies of those issues?
Mr Kekana: He spoke very well. He sounded like he understood what he was talking about.
Adv Mpofu: Yes, in his book? Did you understand what he was saying in his book?
Mr Kekana: I had trouble understanding because even though the book painted some nice ideas about state banks, which I found fascinating, because it was the first time I was reading about state banks, I did not know how feasible or how practical the ideas were.
Adv Mpofu: Granted, but that is not what I am asking you. I am more asking you about his expertise rather than your approval thereof. I am asking if you would agree that he was speaking with authority as an expert in his field; whether you agree with his conclusions or solutions is another matter. But he knew what he was talking about. I think that is what you are saying. You would agree with that?
Mr Kekana: Yes, he spoke as if he knew what he was talking about.
Adv Mpofu: Yes. His book was also very well researched. Correct?
Mr Kekana: I do not understand “well researched”.
Adv Mpofu: Okay. I shall give you an example. There is one chapter where he has something like 57 references from various other books, and that is in just one chapter. Well-researched means that the bibliography is wide.
Mr Kekana: Yes, I think I remember that. Yes.
Adv Mpofu: Mr Kekana, you interacted with the gentleman, you spoke to him, you say you were impressed, you might not have agreed, but he sounded like somebody who knew his subject. I am simply saying therefore, you would not fault anyone who regarded him as an expert in his field. Correct?
Mr Kekana: As I indicated, I would not be sure because I did not understand most of the principles that he was talking about. I really would not be sure.
Adv Mpofu: I think that is good. You would also agree that Mr van der Merwe’s research was also based on work from other economic experts or other books on economics. He did not just make up all these things that are also quite complex, and which you highlighted, correct?
Mr Kekana: Yes, I did see in his document that he made references to a number of documents or books or articles.
Chairperson: Just pause please.
Dr A Lotriet (DA): Thank you very much and my apologies to Adv Mpofu. I just want to make sure the document that we have of Neels van der Merwe on central banks is the correct one; the one that was uploaded for us, and it goes to page 16.6 point 4.4. The rest is empty. Do you have the rest of the document because I would actually also like to have sight of that.
Chairperson: That is an order, Hon Lotriet. Adv Mpofu, can you assist them?
Adv Mpofu: Yes. It looks like that is the end of it and that is indicated by the email which we will be sending to you from Mr Kekana because it simply says, “Hi Public Protector, find attached the draft notes from Neels, that will be Mr van der Merwe. Then it says, “I have highlighted the relevant parts.” Mr Kekana refers to it as a draft. It looks like this was what one might call ‘work in progress’. As Mr Kekana says that he was sent something by Mr van der Merwe both before and after the report. This might not be the final version, but it is the only one that we have.
Mr B Herron (GOOD): I am going to just take the opportunity Chairperson to request clarity. I do not know if I have heard it or missed it. Is it with the documents, this book? Do we have a name for it, please? The title?
Adv Mpofu: Yes, you do not have it. It is titled “Inside the South African Reserve Bank: Its origins and Secrets Exposed” by Stephen Mitford Goodson and it was published in 2014 by Black House Publishing Ltd in the United Kingdom.
I think we are done with the economic experts. Let us go to the document which was your draft report on which the Public Protector made some proposals. Correct?
Mr Kekana: Yes.
Adv Bawa: It starts in the affidavit Bundle D on page 2577. If you want to go to TK2, it starts on page 6586.
Adv Mpofu: My understanding is that the Public Protector’s inputs are the ones in capital letters. Correct?
Mr Kekana: Yes. Correct. Except for the headings.
Adv Mpofu: Well, I do not understand that. Let us go to "Goodson books". What did you understand her to be conveying when she says ‘’Goodson books”?
Mr Kekana: My understanding is that we had to take something from Goodson’s books or get some form of input from those books.
Adv Mpofu: So what is meant by “paper from an economist”? What did you understand by that?
Mr Kekana: There was some talk that we would get an opinion from an economist.
Adv Mpofu: But you already had the input from Mr Moodley.
Mr Kekana: I am not so sure. Can you confirm the dates.
Adv Mpofu: It is 4 May 2017.
Mr Kekana: No, we received a note from Mr Moodley on 6 June 2017.
Adv Mpofu: Two days later, so the paper from the economist might have…
Mr Kekana: No, not two days later.
Adv Mpofu: Yes, I am saying to you, if it was referring to that input, it was projecting something still to be received. In other words, it had not yet been received. Correct?
Mr Kekana: Yes, at that time, we had not received input from the economist.
Adv Mpofu: Then that sounds like a response. You did you receive that by then?
Mr Kekana: I do not recall. I think we might have written to South African Revenue Service (SARS) relating to the tax implication of the lifeboat. Maybe, I am not so sure. I think we did get a response from them. I am not so sure.
Adv Mpofu: Fair enough, Mr Kekana. It was a long time ago. I am just saying that it might also have been referring to something you were still expecting if you had not received it, correct?
Mr Kekana: I am not so sure at the time if I had it, or not. I do not know for sure.
Adv Mpofu: Then there is something about submission by BLF (Black First Land First). Do you know if that had already been received or not?
Mr Kekana: At that juncture? I am also not sure.
Adv Mpofu: Go to 2678. Go to 5. 2.2. A meeting with SSA. What is it referring to?
Mr Kekana: It was the submission that we were supposed to get from the SSA relating to the narrative.
Adv Mpofu: Yes. Had you received it by then?
Mr Kekana: No, we never received it.
Adv Mpofu: I see. Again, this was something expected in the future.
Mr Kekana: Yes, we still expected something at that juncture; that was the assumption.
Adv Mpofu: On the next page, she then put the Absa response, and documents viewed, SARB response, Goodson books, economic view – we have already explained what those are. But then she puts Constitution, SARB, Banks Act, then she puts #FeesMustFall, triple challenges, National Treasury. We will come to the Freedom Charter and Bill of Rights, but you understood what she was asking you to highlight in the report. Correct?
Mr Kekana: Yes, in general, I understood, but some of the issues I was confused about.
Adv Mpofu: Yeah, no, I know, particularly the Freedom Charter. But from this, it is clear that she wanted you to deal with a meeting with the SSA. Correct?
Mr Kekana: We expected a submission from the SSA.
Adv Mpofu: Yes, I know that. But I am seeing one of the things she wanted you to deal with in the report was the meeting with the SSA.
Mr Kekana: Yes. That would be the narrative we would receive from the SSA.
Adv Mpofu: Okay. Okay. Well, I do not know if you have time, but do you know the connection between the Constitution and the Freedom Charter? Do you know the Freedom Charter?
Mr Kekana: I think I have seen it somewhere some time ago, years ago, if I am not mistaken. But I am not familiar with the document.
Adv Mpofu: Okay. Let us not go there. But you know that it is connected to the Constitution, or at least some people say that the Constitution owes some of its existence to the Freedom Charter.
Mr Kekana: I do not know that.
Adv Mpofu: The other issues about #FeesMustFall and so on. I suspect you did not understand what, what that meant. Correct?
Mr Kekana: I did not understand the #FeesMustFall and the triple challenges and how they were relevant to the investigation. But in regards to health, I think it was just a misspelling. I think she meant to say Heath.
Adv Mpofu: Yeah, that is probably true. Okay, then #FeesMustFall. You understand that if there is more than a billion rand of money that belongs to South Africans that has been robbed from them, that could pay for free education, for example. I am sure at that level, you can understand that.
Mr Kekana: I do not want to venture into that. I do not have an opinion on that.
Adv Mpofu: Okay, well, okay. But do know that if there is free education, somebody has to pay for it. That somebody would be the state, at least you must know that. There is nothing like …
Mr Kekana: I do know that the state does cater for our education financially. But I cannot get into a discourse as to whether, if there is money owed, where it would be paid. I am afraid I do not have a view on that.
Adv Mpofu: No, that is not what I am asking you. This refers to 2017. Do you know that one of the hot issues of that time was #FeesMustFall, which required that the government should come up with funding for free education?
Mr Kekana: I was aware of that.
Adv Mpofu: You do not have a view on certain things but do you have a view on whether it would be a good thing to recover R1.25 billion that belongs to the citizens of South Africa.
Mr Kekana: Yes, it would have been a nice thing.
Adv Mpofu: Right, then let us go to the issue of Rule 53. You are in charge of compiling the Rule 53 record, correct?
Mr Kekana: Yes, initially, I was charged with making a copy of the file and providing it to Mr Nemasisi. At the later stage, I was asked by the bank that it needs to come and assist with identification.
Adv Mpofu: Yes. You would accept as a general statement that the compilation of Rule 53 record is done by, at that level that you are discussing by the attorneys and the legal department of the Public Protector. It is not done by her personally. That should not be obvious, correct?
Mr Kekana: Yes, it was done by the attorneys involved.
Adv Mpofu: You said you compiled all the documents to be given to that process of compiling the Rule 53 record, correct?
Mr Kekana: I provided all that I had.
Adv Mpofu: You did not ask the arbitrator’s permission before you provided those documents to the attorneys.
Mr Kekana: No. Before I did, there was just no discussion on that. I was just told that I must provide a copy of the file to the attorneys. That is what I did.
Adv Mpofu: Yes, sir. I mean, those documents were not vetted or approved or disapproved by the Public Protector, correct.
Mr Kekana: I do not remember that. As I indicated I made a copy and provided it to our legal services.
Adv Mpofu: Mr Kekana, please, I am asking you a simple question. When you did that combination - I am asking you, please assist the Committee - you had a free hands. Nobody said, “Do not put this in, take this out.” You had a free hand, you compiled them and gave to the attorneys. What is so difficult about that?
Mr Kekana: What is the question there, Counsel?
Adv Mpofu: Do you agree with what I have just said that you had a free hand in compiling the documents? Nobody said, “You must not put this one or do not put that one”?
Mr Kekana: Yes. As I indicated, I made the copy of all that I had in the file and provided it to the senior manager.
Adv Mpofu: Yes, everything that you considered to be relevant to the case, correct?
Mr Kekana: No, everything that I had.
Adv Mpofu: Or even more, so even things,
Mr Kekana: I also put in my notes. I put in everything; I made a copy of everything.
Adv Mpofu: But you said that your email was inexplicably omitted. It must be you, right?
Mr Kekana: Which email?
Adv Mpofu: The email I think that you just discussed now. The one where the PP said she asked for input from the economist?
Mr Kekana: TK3
Adv Mpofu: Yes, you are quite correct. For the record, you sent this email and this is your evidence in chief. You said this email was inexplicably omitted from the Rule 53 file. That is how it has been reported in the media. I am saying that you were the person who compiled the record, so if anything was carefully omitted, then it was omitted by you, correct?
Mr Kekana: That is not correct.
Adv Mpofu: Then who omitted it?
Mr Kekana: I would not know who omitted it.
Adv Mpofu: You are not assisting this Committee with your responses.
Mr Kekana: But that is just what I did.
Adv Mpofu: You accept that the responsibility for the compilation of this document lies at your door? Correct.
Mr Kekana: As I indicated, I was instructed to make a copy of the file and I made a copy of all that I had, and provided it to the senior manager.
Adv Mpofu: Yes, I accept that. I am not saying you did it deliberately. I am saying in doing so you might have added things that maybe did not belong to this file by mistake or omitted something. But that is not the point. The point is that the responsibility lies at your door, because you are the person who compiled this Rule 53 record, with a free hand, correct?
Mr Kekana: As I indicated, I gave a copy of everything that I had. Thank you.
Chairperson: Thank you.
Adv Mpofu: Okay, let me put it this way. You say you do not know who omitted that document, but it must have been between you, the attorneys and Mr Nemasisi. But those are the three persons who were responsible for this exercise, correct?
Mr Kekana: Chairperson, I pointed out during my testimony earlier that the PP did instruct me not to disclose our draft reports and this was one of the draft reports that we did. I am not so sure where that discussion ended with the attorneys. I am really not so sure as to who might have omitted it.
Adv Mpofu: That much you have made clear, but in your evidence, you are insinuating it was the Public Protector. I think you are trying to do that again now. Let us go into that. You cannot ascribe the omission of that to the Public Protector?
Mr Kekana: As I indicated, I do not know who omitted that.
Adv Mpofu: I know that you have answered that. I am asking you a direct question. Can you please learn to answer the question. You cannot ascribe the omission of that query to the Public Protector, correct?
Mr Kekana: It could have been her; it could have been the attorneys; I do not know.
Adv Mpofu: Yeah. It could have been me. It could have been John Smith, it could have been Regina, you cannot ascribe it. Could be anybody or any of the 60 million South Africans.
Mr Kekana: I have answered that question. Please…
Adv Mpofu: Listen, you did not.
Chairperson: He is indicating that it could have been the Public Protector. It could have been the attorney or it could have been anybody in that office. I think the point is covered. Thank you.
Adv Mpofu: That is fine. Mr Kekana. You have been found guilty of dishonesty, correct?
Mr Kekana: That is not correct.
Adv Mpofu: All right. You have not been dismissed because of dishonesty? No? Did you distribute documents that were sent to you by mistake?
Mr Kekana: As I indicated before, I will not have a view on the issues which are pending before the Labour Court.
Adv Mpofu: Mr Kekana, you have a view about issues that are pending before the criminal court in respect of the Public Protector. You think you are the only one who has rights in South Africa?
Mr Kekana: I have indicated my view.
Adv Mpofu: Well, Chairperson, can you please direct the witness to answer the question because I told you about double jeopardy and you said we must go ahead. It cannot apply only to certain people. Please, Chairperson.
Chairperson: Just repeat your question. I would like him to repeat his response in the manner he wants to do it.
Adv Mpofu: Yes, Mr Kekana, your disciplinary hearing was chaired by Mr Fourie.
Mr Kekana: Yes, that is correct.
Adv Mpofu: Okay, now, the pattern… I am just going to read some of what he says: “In my view, the employee disregarded the relationship of trust between him and the employer by disclosing confidential information that was sent to him in error, well-knowing that it was not meant for him. His relationship as a shop steward with the Public Servants Association and the advantage that it could gain from confidential information that came to his attention by mistake, was at the time of more importance to him than his duties and responsibilities as an employee. He showed no remorse for disclosing confidential information during the proceedings. He initially suggested to Ms Mafa that she deliberately disclosed information to him related to travel arrangements of the former chief executive officer, after she had discussed it with him. However, this was denied in his evidence. Instead, he agreed that Ms Mafa provided information to him by mistake. In my view, this indicates dishonesty on his part, and a later attempt to shift the blame.” Remember that part?
Mr Kekana: Not that clearly.
Adv Mpofu: You did receive the outcome of that hearing? Have you forgotten now? Is that a convenient way of forgetting?
Mr Kekana: I think maybe the way you started. I disagreed with you and I still disagree with you that I was charged with dishonesty. I was charged with unauthorised disclosure of confidential information. I was never charged with dishonesty.
Adv Mpofu: No. It is probably the way I phrased the question. The question should not have been were you found guilty of dishonesty but were you found to be a dishonest person.
Mr Kekana: Counsel, I think you are going there again. You are saying I was found guilty of being dishonest. I just said I was charged with another offence.
Adv Mpofu: Okay. No, thank you. Fair enough. Was there a finding of dishonesty made against you by Mr Fourie?
Mr Kekana: He did mention that, but I was not charged with that.
Adv Mpofu: Please do not waste our time now. The question for your convenience – was a finding of dishonesty made against you by the chairperson: of the disciplinary hearing.
Mr Kekana: I was found guilty of unauthorized disclosure of confidential information.
Adv Mpofu: I am asking you the last time: Was a finding of dishonesty made against you by Mr Fourie, the chairperson of the disciplinary hearing?
Mr Kekana: Okay, I have submitted an answer to that question.
Chairperson: He has answered that question in the way he sees fit.
Adv Mpofu: No, Chairperson!
Chairperson: He has indicated what he was found guilty of.
Adv Mpofu: I am not interested in what he was found guilty of. Okay. He might say it for people who are interested in it. I am asking him a different question. Was a finding of dishonesty made against you? Yes or no? Not what you were found guilty of?
Mr Kekana: Chairperson, I have made a few responses to that question.
Chairperson: Okay. As noted, please proceed. Just a pause. Adv Bawa.
Adv Bawa: Just for information, which paragraph were you referring to?
Adv Mpofu: In the 13th and 14th paragraphs. I started by reading 13, getting to the finding of dishonesty in paragraph 14.
Mr X Nqola (ANC): I want to request that the findings of the disciplinary hearing against the witness be shared with us as well so that we know what the advocate is referring to.
Chairperson: Thank you, in order. Hon Sukers.
Ms M Sukers (ACDP): I want to know, Chairperson, just as a point of clarity in terms of the application of the rules about the witness being uncomfortable or not answering a question. Does the witness reserve the same rights in being able to respond at a time convenient to them, whether it be in seven days or not. I am asking.
Chairperson: That is what I am on. I am carefully watching that space. Thank you honourable speakers. Is that being made available?
Adv Mpofu: Chairperson, I am not taking your job, but the there is no such thing as a witness answering in seven days; the witness must answer now. That is not covered by the directive. Be that as it may, yeah, I am just saying, yeah, if the witness feels the heat in the other question, he cannot answer it in seven days.
Chairperson: The witness did not speak about seven days. The witness has been answering questions since yesterday. And, we might not like the answers he is giving, but he is giving answers.
Adv Mpofu: Okay, now then, maybe you missed what Hon Sukers said. She was talking about seven days, but the seven-day rule does not apply to witnesses. That is fine.
Chairperson: Let us proceed.
Adv Mpofu: Yes, please answer the question, sir. Was a finding of dishonesty given by Mr Fourie?
Mr Kekana: I have already given an answer to that.
Adv Mpofu: I take it you are refusing to answer the question.
Mr Kekana: I have given my view.
Chairperson: Let us proceed. He has given an answer more than once.
Adv Mpofu: Yeah. He can stand up and recite the letters of the alphabet and you will say he has given an answer. He has not answered. My question becomes you can just say he has given an answer.
Chairperson: As I indicated, you might not like the response or the answer. He has given his response and an answer to the question you asked several times.
Adv Mpofu: Yes, Chairperson, I am explaining to you with the greatest respect, that I am expecting him to answer my question. You cannot just say because he has moved his lips and something came out of his mouth, he has answered.
Chairperson: No, I do not think we are going to belabour the point here.
Adv Mpofu: The question has not been answered.
Chairperson: Thank you. He has indicated where he stands on that question.
Dr Mulder: With all due respect to Adv Mpofu, perhaps he should supply the witness with the answers that he is expecting.
Chairperson: I did not get that. It seems that Adv Mpofu has been cut out. Hon Herron?
Mr Herron: No, sorry, with respect. I do not think the response from Hon Mulder is correct. I mean, the witness has been asked to confirm that in a disciplinary finding, there is a paragraph that says the witness was found to be dishonest. I do not understand why it is not correct to put that to him and why he cannot answer yes or no, that is in the finding.
Chairperson: Adv Mpofu, you are muted.
Adv Mpofu: I missed that. If you could just maybe summarize what he was saying.
Chairperson: He was requesting that the witness respond to the question that you have posed.
Adv Mpofu: Hallelujah! Fine, Mr Kekana?
Mr Kekana: Maybe let me see the document that counsel is referring to. I do not have it with me currently.
Chairperson: Okay. You want to respond to that question?
Mr Kekana: Yes, I would respond that that is what Mr Fourie says in his findings in his report.
Adv Mpofu: Thank you. Okay. Thank you. Thank you, chairperson and thank you,
Chairperson: We pause there for a tea break for 15.
Mr Nqola: Before we adjourn for a tea break, Adv Bawa flighted paragraph 14 of a document that we do not have. I wanted to ask Chairperson if that was the findings of a disciplinary hearing of the witness on the stand. Thank you very much.
Adv Bawa: There was a disciplinary hearing relating to Mr Kekana. The disciplinary officer was Mr Stoffels, a senior executive manager. There are two documents, one says ‘Decision’. He discusses three charges that he finds him guilty on those charges. Then there is a second document, which is called ‘The Reasoning on Sanctions’, which is the document of the 27 August 2020. It is that document that contains it. It is the reasoning of the Disciplinary Officer in respect of the ruling on sanction. There are two documents. The first one is the basis upon which he finds him guilty. The second one is called ruling on sanction, and we will make them available to the Members.
Chairperson: I think that will be important. Can we urgently make those two documents accessible and available to Members so that they start applying their minds? It might be important if those would be made available before two o'clock when I start with the Members' [questions].
Mr V Zungula (ATM): Chair, there is one thing I would like to raise. Before we went to tea, there was an issue where the witness is under oath but was being somewhat evasive and refusing to answer a question. Very, very simple and straightforward question. Now Hon Mulder said, 'Adv Mpofu must say the kind of answers that he wants'. Now, I found that to be misleading, because the witness was not answering a direct question. I would like you to protect Adv Mpofu because it cannot be that a Member of the Committee is duggesting that Adv Mpofu is not happy with the answer, whereas the witness under oath is refusing to answer a direct question. Thank you, Chair.
Chairperson: Thank you, Mr Zungula. Your point is noted. Definitely.
Adv Mpofu: Thank you, Chairperson. Yes. Before I ask my next question, I think I must register this. Unfortunately. I did not even know what he was talking about because it must have been the time when I was switched off. I only got, as I said, the tail end of Hon Herron’s input. I did not realise that I had just been insulted once again. I thought today will be the one day that I am not going to be insulted. Chairperson, I am appealing to you for protection. Once again. You have not protected me. Since day one, literally every day, I have numerous examples of being exposed, insulted, and not once have you come to my protection, not once.
Chairperson: Please go ahead. Your recollection of that is inaccurate. I have done that a number of times so your recollection is inaccurate.
Adv Mpofu: That is fine. But that is my view of it. The record will speak for itself. Also you are not protecting me from the Members. I do not know on what basis Hon Mulder could say that I do not like an answer. You know, cross examination, maybe we will explain it at some stage. Maybe we will bring in someone to explain what is the purpose of cross examination. Cross examination has been described as the best engine ever invented to extract the truth by Whitmore, who is an authority on such a conceptual issue. It is also the best engine to expose the lies as well. That is what we are basically doing. Having said that, one of the ways in which people do not give evidence properly under oath is to evade questions, or not to answer simple questions, or to give all sorts of random answers. If Hon Mulder does not know that, then I will, or anybody else, will bring an expert to explain how these things work in any process, such as this one. But what I will not stand for Chairperson is to be abused by anybody, I have made that very clear. I will not be abused or bullied, or intimidated, or derailed. But fine, this is not about me, it is about Adv Mkhwebane. You can abuse me as much as you like, I will never feel bullied. Bigger people have tried to bully me for the past 40 years or so and that will never work with me. I am not worried about that. I am worried about the process, but me, you can do whatever you like, that is fine.
Chairperson: Can we now proceed to your cross examination?
Adv Mpofu: No, no, I am going to address you now. You do not protect me. Remember, they are abusing me. The other thing I want to raise is about the evidence leaders as well. I also have to place it on record, because people are following this process and we have all said that it is a new process that is uncharted waters and so on. The evidence leaders are not prosecutors. Their duty is to expose whatever whether it is in favour of Adv Mkhwebane or against. Their role is now beginning to look like prosecutors. Even prosecutors, for that matter, have a duty to expose evidence that is against them. To sit here with a witness who has been found guilty of dishonesty, and in the so-called summary in the build-up, we were told about this case, at that point, we should have also been told that this witness has been found guilty of dishonesty. What if we did not have the details? The idea is to assist the Members who might not have had this document and yet the evidence leaders have it and it is not brought to the attention of the nation, because this case does not even belong to Parliament.
Chairperson: Thank you Adv Mpofu. I would want you to proceed to a cross examination. But before I allow you to do that, I would want to make a point. I want you to refrain from those accusations. Your recollection that you have not been protected from the Chair is inaccurate. I want to make that point. I hope it is not going to be repeated. But, secondly, when issues are brought to the attention of the Chair, at no point are such matters not being attended to. I would want you to proceed and then at some point, perhaps later today, I will address you on this point of double jeopardy as you have just raised something similar to that about prosecution and so on. I will attend to that and address the hearing on that. I recognize Hon Nodada and Luzipo.
Mr B Nodada (DA): Thank you so much, Chair. We have been sitting in these hearings for the past couple of days now. I think it is very important to understand that there is a very clear distinction between our role and responsibility as a committee, and what we need to consider as a committee in respect of what is presented here to this Committee. But secondly, Chair as Members of this Committee, we cannot be sitting here, and be told the advocate has dealt with bigger people, and so on. Whatever the case may be, we need to respect each other, yet there is a process that we need to run. It is important for everybody to be protected in this process. There have been comments made, whether to witnesses, whether to the Committee, whether to the Chairperson, and that is unacceptable. Neither are we going to sit here and be insulted or bullied, whatever the references are, because we have a responsibility to do justice to this process. This process needs to be fair on all, including by the Public Protector and her team. I think actually, let us hold the decorum of the house and not degenerate through comments and insults, because they will derail the whole purpose of this. I call on you to chair this meeting, and facilitate it well as there is nobody special more than anybody else. We all have a responsibility to play, and let us do that. Thank you so much.
Chairperson: Thank you Hon Nodada. That is in order.
Mr S Luzipo (ANC): Thank you. Can we agree that there is a process to go through and let us go through that process. Where there is a concern about proceedings, can we go to the break room or, if you were the judge, I would say, ”Go to your chambers and deal with the issue”. For now, let us continue with what we are doing. All those issues must be dealt with outside of this meeting.
Chairperson: It is just that some of these issues should not be in the background. They have got to be attended to on the spot in the meeting, because they are part of what the directives are asking us to do. The point is it is not just confusion between the evidence leader and the Public Protector legal team. Some of the issues go straight to this constitutional process that we are driving as the National Assembly. Adv Bawa, before we proceed.
Adv Bawa: I do feel that I need to respond to the allegations made against the evidence leaders that we have failed to disclose a guilty finding on the question of dishonesty. In respect of this witness, I do not find the guilty findings on the charges which Mr Kekana faced to have included a charge or finding that says “I accordingly find him guilty of dishonesty”. During direct examination, I expressly stated that he faced disciplinary proceedings and he was found guilty. He was dismissed and the matter went to the Commission for Conciliation, Mediation and Arbitration (CCMA). It was dismissed and these proceedings are now pending before the Labour Court. It has not reached finality.
Chairperson: You have now placed that on record. Can we resume?
Adv Mpofu: Yes. Mr Kekana? Yes, I am here. As an attorney in South Africa, do you think it is important that the finding of dishonesty has been made against you in any context?
Mr Kekana: I do not understand the question. Can you repeat the question?
Adv Mpofu: As an attorney knowing the rules and ethics, do you think it is important that such a finding of dishonesty has been made in the context of your disciplinary hearing? In other words, if you wanted to be, let us say admitted as an advocate, would you have to disclose this dishonesty issue?
Mr Kekana: I do not understand because I was not charged with dishonesty. I was charged with unauthorized disclosure of confidential information. I was not found in any way guilty of being dishonest.
Adv Mpofu: No, I am not saying that, that is Adv Bawa’s words. Not mine. I accept that you are not charged with dishonesty. I accept that was not one of the charges but I am saying that in the finding of what you did or your conduct, an element of dishonesty was found. Do you think that is important for somebody who is an officer of the court?
Mr Kekana: Is that the complete question?
Adv Mpofu: Do you think that is an important and disclosable fact for someone who is an officer of the court? Question mark! End of question!
Mr Kekana: I am not so sure, Counsel. I do know that one has to report certain conduct. But I would not be sure about this.
Adv Mpofu: Okay, no, that is fine. Have you lied under oath before?
Mr Kekana: No.
Adv Mpofu: Did you under oath supply confirmatory affidavits for the Public Protector in the CIEX matter?
Mr Kekana: Yes.
Adv Mpofu: Are you still standing by the fact that you were supporting what she was saying, in your version of events?
Mr Kekana: The confirmatory that I remember signing was the one dealing with my note to Rule 53. Unless you can point me to some other document, that is the one I remember, off the cuff.
Adv Mpofu: Did you know that when you lie, you lie by omission or by admission? Did you ever, before you were charged with distributing information which did not belong to you, express this so-called discomfort to any authority?
Mr Kekana: Discomfort in regards to what?
Adv Mpofu: All of the things you found odd, and which you did not agree with? Allegedly.
Mr Kekana: Well, in my affidavit, I do point out that I did report this to an attorney and an advocate.
Adv Mpofu: Reported what? What you reported to the attorney and advocate was another lie, which was that the Constitutional Amendment came from the SSA. We have now established that was not correct. And, you know, I do not talk about authorities. I am not talking about you gossiping about the Public Protector with lawyers. I am talking about the report.
Mr Kekana: I did not gossip with any attorney; I informed them of what happened during the investigation. Apart from putting it to them, then I made a protected disclosure.
Adv Mpofu: Yes, you say this is what you say to them not to protect or disclose or forget about that. That was two years after the event. You are not a whistleblower. We established that yesterday. You are the exact opposite of a whistleblower. The whistleblower is somebody who must be protected from the company retaliating for making a report. Do you accept that?
Mr Kekana: I cannot agree with it. I cannot disagree with that. I do not have a view on…
Adv Mpofu: Let me tell you for free. A person in respect of whom something is done, and then that person retaliates against the company is the exact opposite. It is when a company retaliates against you that you become a whistleblower. When you, as you are doing now, retaliate against the company for getting rid of you for your dishonesty, then that is not whistleblowing. It is the exact opposite. You are not a whistleblower but a whistle inhaler, whatever the opposite of whistleblower may be. Okay, so that is…
Chairperson: Adv Mpofu, do not go to that level.
Adv Mpofu: Fine. Thank you Chairperson. That is what I was saying, Mr Kekana. This is what you said in your evidence, that when you were talking to the lawyers, you told them that the recommendation to change the Constitution came from the SSA. That is what you told the lawyers. What you are talking about now, correct?
Mr Kekana: Yes, yes, meaning the note that was handed over to us.
Adv Mpofu: But that is a lie, is it not, Mr Kekana? You gave the impression, you are still giving it, that the recommendation to change the Constitution came from the SSA. But you knew that the recommendation came from the Public Protector and Mr Goodson, in your presence, apart from the issue of the piece of paper.
Mr Kekana: Chairperson, I would like to repeat my answer. That note that we received, TK4, does indicate at the top, ”Recommendations”, and it was the note that we received in regards to the Amendment of the Constitution.
Adv Mpofu: We have established that that was something that the Public Protector told you she had asked for input from an economist, but now we are confuscating it again. That is fine.
Okay, if you allow Chair, please. There is just something that I noticed during the break. I just want to round off the point that I was making about the attachments to TK3. Mr Kekana, can you go to 2678 paragraph 6…I just wanted to highlight once again, some of the issues that were inserted by the Public Protector. In the middle of that page, she says they must come out the written submission of SSA. Do you remember that?
Mr Kekana: Yes, I see that.
Adv Mpofu: Yeah, well, what was she conveying to you? “So I think you must use the written submission of SSA”.
Mr Kekana: I cannot recall that. I really cannot recall that.
Adv Mpofu: Okay, that is fine. What she meant was that you were to use the written submission that you would get from Mr James Ramabulana.
Mr Kekana: I cannot recall that.
Adv Mpofu: Yes, okay. But what it certainly does not mean is that you conceal the interaction with SSA. This is the exact opposite; it says you must actually use it.
Mr Kekana: I have described what it meant to me or what it means to me.
Adv Mpofu: Mr Kekana, can you please answer the question? Where it says ‘use return submission of SSA’ whatever it means and whatever you cannot recall, whatever, but just from reading, using your eyes, you can tell that it does not mean that you must conceal the interaction with the SSA.
Mr Kekana: No, I said there is nothing that says conceal.
Adv Mpofu: Thank you. Then at the bottom, it says. “Amend the Constitution to cater for state bank per Goodson proposal to curb future such occurrences by banks.” That one speaks for itself. In other words, the issue of the amendment of the constitution and the proposal of the economic expert, Mr Goodson, and that one seems to be clear. Do you agree?
Mr Kekana: Yes, that is what she wrote.
Adv Mpofu: Then if you go back a little to 4.2.5, you will find this is the one that she is being crucified for by the powers that be. Yes, she wrote, “amending the Constitution for the South African Reserve Bank to benefit the people”. Is there anything wrong with that – with making a constitutional amendment to benefit the people of South Africa as opposed to sectional interests and those who have money and control of the media?
Mr Kekana: Well, I am not so sure whether you are asking my view or an opinion, or you are asking whether it was factually right to put that opinion. Could you clarify, please?
Adv Mpofu: No, I am saying is there anything wrong in your estimation, as a citizen of South Africa, in amending the Constitution to benefit the people?
Mr Kekana: Well, as a general statement, it would not be wrong. But in regards to the investigation, that we were having, for me, it was not a relevant issue
Adv Mpofu: Okay, let me put it this way. As a South African, you are aware broadly of something called the Zondo Commission?
Mr Kekana: I remember the Zondo Commission. Not that clearly.
Adv Mpofu: That is okay. Now, that is fine. But for the part that you remember, do you remember for example, Judge Zondo suggested an amendment of the Constitution to provide for the direct election of a president.
Mr Kekana: I do not remember that. Unless if you…
Adv Mpofu: No, that is fine. Do not worry about it. But anyway, you agree that an investigation has specific terms of reference, but there is nothing wrong, in principle, in suggesting an amendment of the Constitution. If you ignore the noise from those who have an express interest.
Mr Kekana: Can you repeat?
Adv Mpofu: In other words, okay, let me put it this way. To amend the Constitution is not a crime. Do you agree?
Mr Kekana: Yes, but there are processes that need to be followed.
Adv Mpofu: Correct. In fact, the Constitution itself provides for its own amendment. There is nothing really alarming about such a proposal. People make proposals about bringing back the death sentence and all sorts of things all the time and they do not get jailed or crucified or impeached for it. Correct?
Mr Kekana: Well, maybe to respond to you, this was what the PP wanted to do. But for myself, I did not see any relevance in regards to our investigation.
Adv Mpofu: No, that is fine. That is why you are not the Public Protector. I am saying that the arbitrator wanted to amend the Constitution to benefit the people. You and I agree that there is nothing wrong with that.
Mr Kekana: Well, I am not so sure. She did write that amending the Constitution for SA was to benefit the people. But I am not so sure how; but that is what she wrote.
Adv Mpofu: No, that is fine. Thank you. Well, let us go to the meeting with the Presidency. This one is quite easy. You accept that, apart from the hullabaloo, there was that meeting on 7 June in particular and, Mr Kekana, that meeting was requested by the legal department of the Presidency?
Mr Kekana: I would not know that.
Adv Mpofu: You cannot dispute it.
Mr Kekana: I have no knowledge at all of that.
Adv Mpofu: Right. But what you can confirm is that the meeting only dealt with the issue of the SIU In other words, the practicalities about the SIU proclamation that the Public Protector had in mind.
Mr Kekana: I did not know about that meeting. I was invited to it and when I went there, I saw the meeting had already begun; there were discussions underway and the Public Protector indicated to me that the people from the Presidency were there to assist us with the remedial action relating to the SIU.
Adv Mpofu: You did not yourself witness that?
Mr Kekana: I did not witness what?
Adv Mpofu: You arrived after the meeting already happened. She told you that there were discussions about the SIU so I am asking, did you not witness the discussions?
Mr Kekana: I am saying that when I entered the meeting was already ensuing, meaning that it was in progress already. I was only told after it was already in progress. When I entered, I was introduced to two persons from the Presidency and I was told by the PP that they were there to assist with the remedial action relating to the SIU.
Adv Mpofu: Yes. So?
Mr Kekana: I was present in that meeting, but I did not start with the meeting.
Adv Mpofu: Yes, okay. Let us assume you found the meeting halfway or quarter way or whatever. But for the part that you were present, the discussions were only about the SIU. Correct?
Mr Kekana: Yes, they involved the SIU assisting us with the proclamation, or the reopening of the proclamation.
Adv Mpofu: Yes. There was nothing wrong with that discussion. You did not find it odd?
Mr Kekana: I did not find it normal also, because I did not understand why we were getting assistance from the Presidency’s legal advisors.
Adv Mpofu: Okay, can you see until today you did not know that that meeting was not initiated by the Public Protector, but she was invited by the legal department in the Presidency.
Mr Kekana: Well, I do not know who initiated it.
Adv Mpofu: But the impression was created that she was doing some something that needed to be hidden. You did not go along with that because she disclosed that discussion in the report, is that not it?
Mr Kekana: Well, apart from my view that I did not understand why the Presidency was assisting us with the remedial action relating to the SIU, I really cannot comment on any issues that you are raising.
Adv Mpofu: Right. Also, you may assist us because then were we to call President Zuma, there is a suggestion that the meeting was with the President and the President at that time was President Zuma and he does not seem to know of any meeting. Can you confirm for this Committee that you are not aware of any meeting with President Zuma?
Mr Kekana: No, I never had any meeting with President Zuma.
Adv Mpofu: It is just because the Independent Panel, the panel that was independent, says, Chairperson, in paragraph 263 of the Independent Panel report that there is prima facie evidence of misconduct against the Public Protector for the failure to reveal in her report and in subsequent affidavits, the fact that she had meetings with the SSA and the President. Firstly, we have already established that she never failed to report. In fact, she asked you to reveal the interactions with the SSA and the product thereof. But you can definitely tell the commission [Committee] that she cannot be accused of failure to reveal a meeting with the President because there was no such meeting, at least that you know of, correct?
Mr Kekana: Okay, as I indicated, I have never had a meeting with the President.
Adv Mpofu: Well, even the National Prosecuting Authority seems to have the same idea because since the beginning of 2021, she has been charged criminally and one of the charges is that she held a meeting with the President. You are not aware of any such thing?
Mr Kekana: I am not aware of any such meeting.
Adv Mpofu: Thank you. Welcome to South Africa. At a general level, do you understand that the work of the Public Protector will always be the subject of unnecessary attention from powerful forces in society, in other words, you always have to be vigilant as the Public Protector as an institution? Would you accept that as a general statement?
Mr Kekana: I do not understand the question. Maybe counsel can elaborate on this matter?
Adv Mpofu: Yes. Have you ever read the judgment of Economic Freedom Fighters v The Speaker, otherwise known as the EFF Nkandla Judgment?
Mr Kekana: Yes, I read that some time.
Adv Mpofu: Okay. When the court refers to the Public Protector as the biblical David against Goliath, and talks about those who are in the raw chambers of power, who will want to sabotage her. Is this the first time you hear such a thing?
Mr Kekana: I remember that as well.
Adv Mpofu: Yeah. That is often talked about and therefore, do you think, in the midst of that, it is correct and proper for the Public Protector to have, within its ranks, people who are peddlers of gossip and stolen information?
Mr Kekana: I do not understand the question. Can you repeat that, Counsel?
Adv Mpofu: Do you agree that given the onslaught by powerful forces, economic and political, against the Public Protector, it would not be proper for it to harbour within its ranks, liars, imposters and people who gossip and peddle information that does not belong to them?
Mr Kekana: I would not be sure of that sentiment that the Public Protector as an institution would have negative people or people of low character. All the people that I knew there were of good character.
Adv Mpofu: Yes. I am sure those ones are still there. Now, there was the issue of you also trying to insinuate something about the lawyers, the change of lawyers. You do not know why those lawyers were changed, correct?
Mr Kekana: Yes, I do not know.
Adv Mpofu: Okay, thank you. That was a quick one. Let us move to the note. You will have the note that you wrote regarding the meeting of 3 May that I had said must be sent to you overnight for fairness.
Mr Kekana: No, it was not sent to me.
Adv Mpofu: Sorry. It is quite a short one. If you want a few minutes to have a look. Sorry, it was an oversight. It is literally half a page. It has been flighted – do you remember it now?
Mr Kekana: Yes, I recognize the note.
Adv Mpofu: Okay. Is that your handwriting?
Mr Kekana: That is my handwriting.
Adv Mpofu: Okay, through this note, I am going to demonstrate that nothing that comes from your mouth should be taken as evidence that should be taken into account by this august Committee for two main reasons: one is what you called impaired memory where you just do not know what happened; the second one is just dishonesty, which I think you have displayed more of. I asked you yesterday about what happened in that meeting. everything that is in your own note, you either disputed or said you did not know that it happened. You remember, I asked you when you were saying they were talking about apartheid times, I said they were talking about current times and talking about the Heath Commission. Remember?
Mr Kekana: If I remember those questions, yes.
Adv Mpofu: Now you can you see your note is contrary to what you are saying? Actually there was a discussion about Heath, which is current affairs, not apartheid time issues.
Mr Kekana: Chairperson, as I indicated, there was no discussion on Heath to my recollection, and I note that there was reference made to Heath, but there was no discussion about him.
Adv Mpofu: Okay, but when I asked you yesterday, you did not say there was any reference to Heath. In fact, I was raising that in the context, Mr Kekana, of disagreeing with you that the issues raised only dealt with apartheid times, or actually even dealt with apartheid.
Mr Kekana: Maybe you can refresh my memory, but Chair, what I indicated was that most of the discussions were around the Apartheid era. I do see my note that I mentioned Heath but there were no discussions on Heath. If I remember correctly, there was only just a reference to Heath, and to Davis. But there were no real discussions on Heath or Davis.
Adv Mpofu: Okay, well, whatever you call it, whether it was a referral or a mention, that is exactly what I was saying to you. Those are indications that the issues that were raised were current issues. Davis and Heath are not pre-democratic era institutions. Those are post-apartheid institutions, if apartheid is gone.
Mr Kekana: If you put it in that context, I would agree with you.
Adv Mpofu: Yes, you agree with me today because I have your note. Yeah. I want to also tell you that you also, on the South African Reserve Bank - in fact, that is where this question came from because you were denying that there was a discussion about the vulnerability of the Reserve Bank currently. You were saying no, that discussion was about vulnerability beforehand. That is not true, either. Look at your note. The Reserve Bank was mentioned and discussed, correct?
Mr Kekana: Yes, it was discussed, but as per the context that I indicated yesterday.
Adv Mpofu: Yes. But look at the second note that says, “How are they vulnerable?” It is in the present tense, is that not it?
Mr Kekana: Yes, it is a present tense connotation.
Adv Mpofu: Yes. “How are they vulnerable?” cannot be a reference to apartheid times, or at least the times before political freedom, before the elections. Correct?
Mr Kekana: Upon reading the statement, it may seem that it was a current sort of proposition, but from what I remember, we talked about the South African Reserve Bank in regards to apartheid.
Adv Mpofu: You are lying, Mr Kekana. You wrote about it in the present tense, although you were talking about it in historical terms? Would you say, “Van Riebeek is arriving today”?
Mr Kekana: No, no Chair, as I indicated, if my memory serves correct, all the discussions that we had on the SARB, were in regards to the pre-democratic era.
Adv Mpofu: Okay.
Mr Kekana: So that is my recollection of the events. Remember, Chairperson, I was present, and I would recollect more than anyone else. It would be me and the PP who would have maybe different versions, but that is my recollection of events.
Adv Mpofu: Yes, Mr Kekana, I represent the Public Protector. You understand that as a lawyer?
Mr Kekana: I understand that. Okay.
Adv Mpofu: Now I am telling you that the recollection of the Public Protector is the same as that reflected in your own note, that there was a discussion about how are the Bank is vulnerable now. It is not me who recorded that. The Public Protector’s version is confirmed by your own note; your version is against your own note. Can anybody rely on anything that comes out of your mouth after this display of the past few days?
Mr Kekana: As I indicated, my recollection of the SARB matter, and especially the discussions, were around the pre-democratic era. “How are they vulnerable?” might also have been a question that I was asking as to why or how they were vulnerable. But from what I remember, the discussions emanated in the pre-Democratic era.
Adv Mpofu: Okay, two things about that. firstly, it is either the Public Protector and your note or your evidence before the Committee that is correct.
Mr Kekana: I am indicating what I can recollect.
Adv Mpofu: Alright. Well, that is fine. I think that speaks for itself. But I think the most important thing you have just said, is that the words “How are they vulnerable?” might have been a question you were asking yourself, is that correct?
Mr Kekana: It could be possible that was the question that I was asking myself or it was said.
Adv Mpofu: Thank you. Can you see the problem with this, Mr Kekana, if the High Court, to your knowledge and the Constitutional Court, and now this Committee have condemned the Public Protector, Adv Mkhwebane, to pay personal costs. And…
Mr Mileham: On a point of order!
Chairperson: Please hold on, Mr Mileham. I was just about to interrupt Adv Mpofu. I would want you, Adv Mpofu, not to speak on behalf of this Committee because we have already travelled this journey that this Committee has not condemned anybody, including the Public Protector. Please do not place that in the way of this Committee.
Adv Mpofu: Okay, that is fine. Fair enough. Not yet. What I am saying is that the Independent Panel has made a preliminary finding, the Constitutional Court, or the majority of the Constitutional Court, has found that she was biased, and a litany of epithets that are associated with how unsuitable she is. The courts have done so, maybe this Committee has not done that, although some of its Members have, and some of the parties represented in it. The point I am making is that one of the key issues that has attracted such condemnation and insults regarding the Public Protector is because she was accused of having discussed the vulnerability of the Reserve Bank. Now you are telling us that that might have just been something you were writing down to ask yourself a question. Do you think that is fair, Mr Kekana?
Mr Kekana: So maybe just to get clarity, what is not fair?
Adv Mpofu: That a person who is a defender of the people of South Africa is crucified to the extent of having to pay personal costs for among other things, the note that you were just writing to yourself about the vulnerability of the Reserve Bank.
Mr Kekana: I do not have a view on that. I am not so sure as to how all those people mentioned arrived at that conclusion. All that I remember is what I have testified on the note.
Adv Mpofu: Yes, Mr Kekana, I shall assist you. In the case of the Constitutional Court, the judgment of Khampepe which is one case where the Constitutional Court upheld punitive and personal costs against the Public Protector. Fortunately, there was a dissenting judgment of Mogoeng CJ, which went through the issues and with which we agree. But the majority judgment, which is one of the judgments that has brought us here, that Ms Bawa referred to, says in paragraph 178: “The record contains handwritten notes of a meeting" – those are your notes, Mr Kekana, the ones that we are dealing with now. Okay?
Mr Kekana: Okay.
Adv Mpofu: The note refers to a meeting between the Public Protector and the State Security Agency on 3 May 2017. This revealed that the vulnerability of the Reserve Bank was discussed. That also comes from your note, do you understand?
Mr Kekana: Understand.
Adv Mpofu: It has been contended that this discussion with the State Security Agency about the vulnerability of the Reserve Bank, was irregular. It said: "It is unclear on what possible basis the vulnerability and our ability to govern the Reserve Bank was relevant to the Public Protector’s investigation into the CIEX Report. The Reserve Bank expressed its concern that this discussion appeared to be aimed at undermining the Reserve Bank", and so on and so on. The culmination of all this is that the Public Protector was biased, and her model was flawed, and she deserved to be mounted with personal costs. I am saying to you, is it fair that she should be visited with all those calamities on the basis of a note that you say you might have been writing to yourself?
Mr Kekana: As I indicated, according to my knowledge, the vulnerability related to discussions with the SSA during the pre-democratic era. I do not want to have a view on the Constitutional Court's judgment.
Adv Mpofu: Even if you are correct, even if it was about the about the apartheid era, it would make it doubly unfair for her to be condemned. You did it. In fact, if your version is correct, then the unfairness would even be more patent. That is why we are here. We are here because of the findings of the courts, which according to some people here, are not to be touched, even when they are clearly wrong and based on the incorrect information, as we have now demonstrated.
Mr Kekana: Chair, I have indicated my view. I do not have an opinion on the Constitutional Court judgment on that score and I have already indicated the context of the vulnerability of the South African Reserve Bank in my notes.
Adv Mpofu: Now you also were trying to paint the Public Protector as being responsible for what you perceive as the lack of quality assurance of the report, is that correct?
Mr Kekana: The CIEX Report you mean?
Adv Mpofu: Yes, sir.
Mr Kekana: Yes, sir.
Adv Mpofu: Whose responsibility was it to quality assure the report?
Mr Kekana: Mr Isaac Matlawe at the time was in charge of that.
Adv Mpofu: If he did not quality assure the report, whose fault was that?
Mr Kekana: Well, if it was not quality assured, I think he would be self-responsible for doing that. If there was a failure, the Public Protector would ultimately deal with him.
Adv Mpofu: But the Public Protector asked you and him and others to quality assure the document. Did they not?
Mr Kekana: Well, I did the first level of quality assurance, because I was the one who was writing the report. But as one knows, you cannot really quality assure your own work, so it had to go to quality assurance to do that. Thereafter the Public Protector had to also do her own assurance to make sure that it was in order.
Adv Mpofu: Yeah, but the Public Protector’s evidence will be that she said to you, that she thanked you for the good report, and said you needed a third person to look at it with a different eye. She suggested Mr Matlawe. That was an instruction to you to do the quality assurance of the Report, was it not?
Mr Kekana: Yes, Mr Matlawe, as I indicated, was the one who was responsible for quality assurance. Usually all reports would go to him before going to the Public Protector for the final check.
Adv Mpofu: No, Mr Kekana, do not dodge the question. I am not talking about usually, I am saying specifically in this case, the Public Protector thanked you for that report. That will be her evidence. She said you needed to look at it with Mr Matlawe and that you needed to go through it, page by page, with that third party.
Mr Kekana: I cannot confirm that. Can you show me maybe that email you are referring to?
Adv Mpofu: Why do you think it is an email? Who said anything about an email?
Mr Kekana: Because I am thinking you are referring to a document or instructions, sent by email, so that is why I am asking.
Adv Mpofu: No, you are right. By the way, it was an email. But that is exactly because you know what I am saying is true. Forget about the email for now. I am asking, do you deny that the Public Protector thanked you for the report and asked you to have it quality assured?
Mr Kekana: As I indicated, Counsel, if you can show me that email, it can refresh my memory greatly.
Adv Mpofu: Yes. Now, I am going to do that. But I am asking you independently of the email. Let us assume it was just she giving evidence. Would you dispute it?
Mr Kekana: Independently, Chairperson, I have given evidence that what would happen is that the report would go to Mr Matlawe, and then it would go to the Public Protector for the final check.
Adv Mpofu: Mr Kekana please, I asked a simple question, sir. You have just said that the fact that there was no quality assurance must be blamed on the Public Protector. I am showing you that it must actually be blamed on you, if it was even true. I am asking you a very simple question: Do you dispute that the Public Protector specifically asked you to ensure that the report was quality assured by Mr Matlawe? Do you deny that?
Mr Kekana: I do not remember, but I would have been the one to do the first quality assurance and Mr Matlawe would have been the one to quality assure it as well, as well as the PP as a final check.
Adv Mpofu: Mr Kekana, do you not understand the question or not?
Mr Kekana: You can maybe expand on the question because I do not feel I am dodging the question. I am answering it.
Adv Mpofu: Alright. Okay. I am not ambushing you.
Adv Bawa: Send the email to Adv Mayosi.
Adv Mpofu: Okay. Sunday, but in the meantime, please read it out. Then each of us
Adv Bawa: I would appreciate it if we had been sent the email earlier today, Adv Mpofu.
Adv Mpofu: Okay, well, I am not going to repeat what I said. I did not know that the man was going to deny his own email or the message. Normally I do not have to prove things. I would have just put it as something from the Public Protector, but I was not to know that he would deny it. I am not a prophet. Okay, it says the following: "Thanks Tebogo. Very good report. But we need a third person to look at it with a different eye (Matlawe maybe)". It is a response to your message which was sent, Mr Kekana, to the Public Protector at 5:06 pm on the 17 May 2017 where you said: Hi PP kindly find attached the draft working report. I am not done with it yet, especially, 1. research on case law relating to accountability and state money and something else. Then her response is what I have read to you. Does that not refresh your memory?
Mr Kekana: Can I see that? I really need to see the documents that you are referring to, especially to jog my memory very well.
Adv Mpofu: Fair enough. Mr Kekana, just without seeing the email, does it not ring a bell?
Mr Kekana: As I indicated, I had to do the QA [quality assurance] on the report, Matlawe also had to do the QA and also the PP had to do her own QA.
Adv Bawa: Do I understand you to say that this was the Public Protector’s version or an instruction given on the final draft?
Adv Mpofu: No. Why would I say that? I have said ‘draft report’ twice. “Kindly find attached a draft working report.” That is what I just read out. “I am not done with it yet, especially 1. research on case law relating to accountability and state money", and so on. Then the response was: “Thanks Tebogo for a very good report, but we need a third person to look at it with a different eye.” One does not quality assure a final report. You quality assure it while it is on its way to becoming final. It would be futile to quality assure a report that is already final. That is not what I said.
Mr Kekana: I do see something, yes.
Adv Mpofu: Okay, Mr Kekana. It is from Tebogo Kekana, 17th May 2017 5:06pm. To: Busisiwe Mkhwebane. "Hi PP. Kindly find attached the draft working report. I am not done with this yet, especially 1. research and the case law relating to accountability and state money. 2. It was taking too long and I wanted to provide you with a complete working document to reflect that PFMA but realised that I cannot make findings on it. 3. I also included a short summation of Mboweni, Marcus and Ramos for us to include like the King 2 Report" and then it goes on. Mboweni, Marcus and Ramos - those are the economists Mr Kekana. Correct?
Mr Kekana: I am not so sure about their qualifications. I knew Mr Tito Mboweni was the former Minister, later Governor of the Reserve Bank and again, Minister, but I am not so sure about his qualifications
Adv Mpofu: Tito Mboweni is an economist. Ms Ramos is also an economist. I am not sure about Ms Marcus, but I think she also is one. But anyway, let us put that aside. If you do not know, you do not know. The Public Protector’s response was “Very good report but we need a third person to look at it with a different eye (Matlawe, maybe)”. That is the part I am talking about. Do you still say that she did not ask you to have it quality assured?
Mr Kekana: No, I did not say she did not. I could not remember that. Anyway, I said, naturally, I would quality assure it and then it would go to Mr Matlawe and she would do the final quality assurance.
Adv Mpofu: Yes, but I am saying that you must accept that from this evidence, your assertion that she must be blamed for the lack of quality assurance, if there was such a lack of quality assurance, is baseless, correct?
Mr Kekana: No, my indication is that the report was not quality assured before she released the final report.
Adv Mpofu: Okay. Did you follow the instruction to quality assure it?
Mr Kekana: Yes, I did quality assure it but I do not think Mr Matlawe quality assured it and I did warn the PP about that, especially before we released the final report that it was not quality assured by Mr Matlawe.
Adv Mpofu: Mr Kekana, I think you are now talking in circles. Was the report quality assured at any stage?
Mr Kekana: I did quality assure it.
Adv Mpofu: So anybody who says that the report was not quality assured, as a general statement, will be lying, correct?
Mr Kekana: Well, I would not want to put it in that way. My answer to that would be that if something has been quality assured, in a formal sense, it would have gone to the quality assurance unit which was then the responsibility of Mr Matlawe. If the report had been quality assured, it would have gone through QA. There would be preliminary quality assurance by investigators, line managers, but the general practice was that report had to go to the quality assurance unit before it could be published or before the PP signs.
Adv Mpofu: Alright, okay. Anyway, let me tell you that the evidence of the Public Protector will be that the report, on her instruction, was quality assured at all stages, and in any event, it will be ridiculous for her to say it must be quality assured at this stage, and then later, not want it to be quality assured. But that will be her evidence, if you care to comment, but she is going to disagree with you.
Mr Kekana: I disagree that it was quality assured at all stages.
Adv Mpofu: Yeah, that is fine now.
Adv Mpofu: Mr Kekana, let us deal quickly with the Vrede Dairy Report. You did not participate in this process up to the end, correct?
Mr Kekana: No, I did not participate until the end.
Adv Mpofu: Yes. I shall just put propositions to you about the version of the Public Protector. You, yourself had no evidence of the Public Protector saying that the investigator should be removed because she was a DA member. Right?
Mr Kekana: As I indicated, I was informed by Mr Ndou.
Adv Mpofu: Okay, well, the Public Protector denies that but Mr Ndou maybe will be called and we will deal with it with him. But I am asking you just out of curiosity. If the Public Protector had said that the person should be removed, because she was a DA member, would there have been anything wrong with that?
Mr Kekana: If there were just statements without any proof, yes, there would be something wrong about that statement.
Adv Mpofu: Let us assume there was proof and she was a member. There is nothing wrong with being a DA member. Let us say she was indeed a DA member. I am saying, would that make it wrong to remove her from this investigation?
Mr Kekana: Well, if she was a DA member or any other political party member, I would not think it would have been wrong. But just I think on the mere fact that one subscribes to a certain organisation and is removed due to that, I think yeah, that would be wrong.
Adv Mpofu: Have you read the Vrede Dairy report.
Mr Kekana: I tried to at the time it was released, but I did not have an appetite to read it.
Adv Mpofu: Yes, but the reason you put this issue in the so-called protected disclosure, was because you were suggesting that there was something wrong with the alleged removal of the person because she was a DA member. Can I read the first page of the Vrede Dairy Report which says: “The complainant is Dr R Jankielsohn, a member of the Free State provincial legislature, representing the Democratic Alliance.” Now, given that fact, would it have been appropriate to have someone who is a DA member and associated with the complainant to participate in such an investigation - not necessarily DA, let us say the UDM was the complainant, and the investigator was a member of the UDM? Do you think that there is something wrong with the head of an institution intervening in that way?
Mr Kekana: My view, and what I knew of Ms Erika Cilliers, was that she was a person of integrity who did a lot of good work. Whether she was a Democratic Alliance member or not a party political member of any party, I still believe that she did good work on the Vrede Report. I would not think that she would do anything less, even if she was a Democratic Alliance member.
Adv Mpofu: Okay, well, that is your view, Mr Kekana. Do you think that the broader public of South Africa would be comfortable with somebody who was investigating their own case, so to speak? Do you know anything about the law of recusal. You do not necessarily have to have integrity, if you are a member of the body that is complaining or being investigated, or associated therewith, or a spouse of a person who is associated therewith, then you are ipso facto conflicted, even though you yourself might be a person of integrity. Is that incorrect what I have just said? Did you study administrative law?
Mr Kekana: If there was a conflict of interest, and there was evidence of that and it was proven, I would not see anything was wrong with the PP removing Ms Erika Cilliers because of that conflict of interest.
Adv Mpofu: Thank you. You understand that conflict of interest is not just actual conflict of interest. It is also what is reasonably perceived, in other words, at an objective level, so subjectively the person might be the Pope, or whatever, but if there is objectively speaking an investigation into the Catholic Church, then the Pope should not be the person who does it. You understand the point I am making is that does not have to do with the integrity of the person subjectively. Do you know that?
Mr Kekana: I shall accept your view, but I do not have knowledge of that, off the cuff.
Adv Mpofu: Did you not learn it at law school?
Mr Kekana: I learned it.
Adv Mpofu: Okay. Was it different from what I have just summarized for you?
Mr Kekana: I would have to revisit what I have studied - off the cuff, it becomes very difficult to just regurgitate all that one has learned.
Chairperson: Thank you. We will take the lunch break.
Chairperson: We will resume. Adv Mpofu, I want you to resume and wrap up by half past two.
Adv Mpofu: There is an email. Remember, you said the quality assurance was only done in respect of the draft, but not the final report?
Mr Kekana: Yes, I remember that.
Adv Mpofu: Now that email is from you addressed to Busisiwe Mkhwebane, Public Protector, 17 June 2017 at 2:05pm That is two days before the release of the report. Correct?
Mr Kekana: That is right.
Adv Mpofu: Then you say the subject is Final Draft.
Mr Kekana: Yes.
Adv Mpofu: Then you say: Hi PP find attached inputs as discussed. Unfortunately, Matlawe is not her (I think you wanted to say here.) I went over it and have cleaned it all up. Regards Tebogo
Mr Kekana: Yes, I think I remember it.
Adv Mpofu: Do you think you remember it? Okay. Thank you. The 'Matlawe' then, obviously, relates to the earlier instruction by the PP for you to run this by him. Remember the email before lunch?
Mr Kekana: The one before lunch? When you referring to an email in May?
Adv Mpofu: Yes, I was referring to an email; I cannot remember the date. Let us say it was in May, June, whatever it is, but it is the same. The point I am making is the same Matlawe that she had asked to do the quality assurance at the drafting stage, correct?
Mr Kekana: Yes, it is the same Matlawe.
Adv Mpofu: Yes. Therefore, you are explaining in this particular instance, Matlawe was not there but you have done the quality assurance, correct?
Mr Kekana: I had done the quality check.
Adv Mpofu: Therefore, it was false evidence to say that no quality check was done before the final draft, correct?
Mr Kekana: No, that is not correct.
Adv Mpofu: So the final quality check that you did was not before the final draft. Which part is not good?
Mr Kekana: After I did my own quality assurance, Matlawe had to do the quality assurance as well.
Adv Mpofu: Yes, but you said, unfortunately, he was not there. How can that be the fault of the Public Protector?
Mr Kekana: No, I do not know whose fault that was, but I do state that Matlawe was not there.
Adv Mpofu: Mr Kekana, please! The impression you are creating was that the PP did not want the reports to be quality assured. That is what has been reported in the media. I am trying to demonstrate to you that firstly, it was quality assured by you. It was probably quality assured by Matlawe after she instructed you to do so in May and that, at this stage, to the extent that it might not have been quality assured by Matlawe because he was, unfortunately, not there, according to you. Is that a fair summary of the position?
Mr Kekana: My position is that the final report was not quality assured by Mr Matlawe.
Adv Mpofu: But it was quality assured by you.
Mr Kekana: I indicated that.
Chairperson: I do not know if you need to continue.
Adv Mpofu: I think that is fine. The Members can just make note of that. Let us go to page 4 quickly.
Mr Kekana: Yes, I am there.
Adv Mpofu: This is the document that you said was handed over by the economist from SSA. Correct?
Mr Kekana: That is right.
Adv Mpofu: Now, it says: It is recommended that the following sections of the Constitution related to the South African Reserve Bank be amended as follows and that all corresponding legislation be duly amended. Okay. You and I established before lunch that there is nothing wrong with recommending a constitutional amendment, South Africans do it all the time, and even our favourite Commission, the Commission on State Capture, made recommendations like that. Remember that evidence?
Mr Kekana: I remember we spoke about that.
Adv Mpofu: Consensus? Okay. Then, to 224(1), that is the clause of the Constitution and the recommended changes are; “The primary objective of the South African Reserve Bank is to promote balanced and sustainability economic growth in the Republic, while ensuring that the socio-economic well-being of the citizens are protected.” How can that be harmful to anybody ensuring that the socio-economic well-being of citizens are protected? Do you find it harmful?
Mr Kekana: Indeed, as indicated before I did not understand what the purpose was for us in going for an amendment of the Constitution as I did not find it relevant to the investigation.
Adv Mpofu: Okay, that is fine. Congratulations. But do you, apart from that, think that the socio-economic well-being of the citizens is something that is to be commended or promoted? The protection of the socio-economic wellbeing of citizens?
Mr Kekana: Yes, in general, I believe that we should protect the socio-economic wellbeing of citizens.
Adv Mpofu: Thank you. The next one is: “The South African Reserve Bank in pursuit of its primary object (which is now the social economic wellbeing of citizens) must perform its functions independently and without fear and favour or prejudice, while ensuring that there must be regular consultation between the Bank and Parliament" – remember, the original document said the Cabinet, and then it was changed later to Parliament by the Public Protector – "to achieve meaningful social economic transformation.” Is there something wrong with that, in general, in the same vein as the previous question?
Mr Kekana: Well, in general, yes. I would not believe there would be anything wrong with protecting and transforming the socio-economic wellbeing of the country.
Adv Mpofu: Is it fair that someone whose only sin is to promote the socio-economic wellbeing of citizens be projected by the real owners of South Africa as an incompetent and mad woman?
Mr Kekana: I do not know what are you referring to, Chairperson, maybe can I be assisted on that?
Adv Mpofu: You live in South Africa? Do you regard it as fair that someone whose only sin is to suggest that, all these things such as the socio-economic wellbeing of citizens are protected, should be projected by apartheid apologists and clever blacks as a mad woman and an incompetent madwoman.
Mr Kekana: Chair, I have indicated my general view, that indeed, it would not be a bad thing to promote or protect social economic wellbeing of our citizens.
Adv Mpofu: Thank you. You did.
Chairperson: Yeah, I just wanted him to conclude his response. Are you done?
Mr Kekana: Yes, I was just saying that my view is that, in general, it is not a bad thing to promote or transform the socio-economic wellbeing of the citizens of the country.
Adv Mpofu: Thank you. Excuse me. Now. Before we get to the last topic, I am just going to ask you something about the Gupta Leaks. Firstly, let me preface it by saying that the Public Protector will deny that she said you must not rely on the Gupta Leaks. The only thing she did was to caution about the authenticity of some of that information. Because at that stage, remember, you have to think back to 2017, there were some questions being raised, but she never gave you a blanket ban not to use that information. Do you agree with that?
Mr Kekana: Yes, as I indicated, I was only informed by Mr Ndou that the Public Protector did not want us to follow the Gupta Leaks.
Adv Mpofu: Okay, that is fine. Mr Ndou will then come and talk about it hopefully. I will not burden you with something that you got from somebody else. But I am not asking you a general question along the lines that I asked you before. When she says that we need to be sure about the authenticity of the Gupta Leaks, she is condemned. When she says the Inspector-General of Intelligence (IGI) report has now been authenticated, I can use it, then she is condemned. What must the Public Protector do in order to attract the favours of the owners of South Africa?
Mr Kekana: I really do not understand that question.
Adv Mpofu: It is fine. But no, it is about fairness. But I do not think it is something you want to comment on. The other issue has to do with your own situation. We have already dealt with your disciplinary hearing. There was an independent chairperson, correct?
Mr Kekana: Yes, I believe there was an independent chairperson.
Adv Mpofu: Thank you. But I am just doing this apropos. I do not want to get into those issues as to why you were suspended and so on. But just again, to highlight an issue I raised with you yesterday about the difference between investigation and adjudication. By the way, were you aware that Mr Nemasisi had a view regarding this matter of the differentiation between adjudication and investigation? Did you come across his opinion on that issue?
Mr Kekana: I do not recollect. You are now referring to the Vrede Report?
Adv Mpofu: No, no. I think, in fact, I am not sure whether it was a general opinion or it was in the spirit of a particular report. But we will deal with that with Mr Nemasisi if he is called. I just wanted to know whether you are aware that he had those views.
Mr Kekana: I do not recall. He made a lot of inputs on numerous reports. I do not recall that particular one.
Adv Mpofu: Yes, no, I agree with you. Mr Nemasisi also wrote about something that I think is going to be relevant for this Committee, namely, the right to a hearing. Remember, one of the big things about this process we are under, are the instances where it is said that the Public Protector did not give so and so the right to a hearing before remedial action? Are you aware that Mr Nemasisi, in one of his well-written opinions, I must say, was to the effect that there is no need for a person to be given out the "audi" twice? By that, I mean, if you get your hearing before the preliminary report, and the findings are made against you, then it comes back to the Public Protector for the remedial action and there would have been no need to give you a second "audi". That is the practice that was followed. Are you aware of this or not?
Mr Kekana: I remember there was some debate around that. But I do not remember how it was concluded. But I do remember that. There were those that were saying that there was no need for a second "audi" and there were those that said that there was a need for a second "audi". Yes.
Adv Mpofu: In fact, that question was only settled in the CR17 Report case more recently, but actually, during your time there were different views about it, correct?
Mr Kekana: Yes. There were different views, if I remember well, yes.
Adv Mpofu: The other one, and you're saying you are not aware which of those views that Mr Nemasisi strongly supported.
Mr Kekana: You mean the view about "audi"?
Adv Mpofu: I am saying, I was putting to you as a proposition, that Mr Nemasisi was a strong proponent of the view that there was no need for a second "audi" and asking whether you are aware of that or not.
Mr Kekana: I did indicate that I remember there was a debate about that. I also think Mr Nemasisi made his contributions.
Adv Mpofu: That is fine, Mr Kekana, I will deal with Mr Nemasisi on those issues if and when he comes. The other point which I am asking you because you are a legal person who was involved in these things. There was also a view which was held that the so-called two-year bar that is in the Public Protector Act is a matter that is in the discretion of the Public Protector. In other words, if a report, and let us take the CIEX report as an example, you know that that report related to events that happened in the Nineties, correct?
Mr Kekana: Yes, that is correct.
Adv Mpofu: That even though the investigation was on a subject that was more than two years old, the Public Protector, if she felt that this was in the public interest, would have jurisdiction over it. It was another debate among the legal people in the Public Protector’s Office. Are you aware of that?
Mr Kekana: I remember something like that.
Adv Mpofu: Yes. That one, actually, it was only for the first time it came before our courts, in the matter of Gordhan and Pillay or the Rogue Unit matter. Again, that was after your time, right?
Mr Kekana: I think that is correct.
Adv Mpofu: But in the same vein, as I spoke to you about the issue of the DA or any political party, that we were debating when we went to lunch; but if the evidence leaders ever comes back to me, we will deal with it at that point. But let me put another proposition to you. I preface it in the same way by saying the Public Protector will deny the insinuation you were making that she instructed you to remove politicians from the Free State report. You know, for the reasons that you were suggesting.
Mr Kekana: As I indicated, I was only informed by Mr Ndou that we should remove those.
Adv Mpofu: Okay, that is another Ndou special. Okay, so Mr Ndou did not tell you, insofar as any politician were to be removed, why that would be?
Mr Kekana: I do not remember any reasons being advanced. I remember it being as indicated as an instruction.
Adv Mpofu: Yes. But what I am saying is that there are reasons for an instruction or advice or whatever it is. You did not know - there might have been a good reason or a bad reason or an indifferent reason. You do not know.
Mr Kekana: No, I did not know.
Adv Mpofu: Okay, now, let me ask you the question I asked you, which is a more theoretical one. If, in terms of the investigation, it was clear that the responsibility for certain actions should be levelled at the level of the executive management of government and not at the level of politicians, I am saying, if that was what the evidence was showing, would there be anything wrong with the head of the Public Protector or the NPA or any institution saying that those persons who are not implicated must be removed? Is it necessary that politicians be implicated, even if the evidence might not point that way?
Mr Kekana: I am not so sure – confirm which question I should answer – I think that you have two questions in your proposition.
Adv Mpofu: The last one - is it compulsory for politicians to be implicated even if there is no evidence?
Mr Kekana: Well, if there is no evidence, then they should not be implicated.
Adv Mpofu: Yes, and if they are wrongly implicated, and not just politicians, I mean, you and I, if it is clear that you are not directly involved, should your name not be removed?
Mr Kekana: That is correct. If we find that there was an error on our side to include you, then we will remove it.
Adv Mpofu: Thank you. The point I am making Mr Kekana, is simple. The hullabaloo about the mere act of removal, or even insertion for that matter, is meaningless, unless we know whether there was a good reason for that name to be included or excluded. I am sure you would agree, as an investigator, to that general proposition, correct?
Mr Kekana: Yes, as I indicated, Chairperson, if there were no findings of any wrongdoing by any individual, then it would only be fair to remove that from the record.
Adv Mpofu: To be fair on you to ask this. As I was saying the investigation on you was conducted by Mogashoa Attorneys, who are independent attorneys, correct?
Mr Kekana: Yes, I was informed that Diale Mogashoa was making some form of investigation.
Adv Mpofu: That was around the issue of your alleged - it is now no longer alleged, it is true - abuse of information, which was literally sent to your computer by mistake.
Mr Kekana: While at the time when I learnt of Diale Mogashoa, I did not know there was an investigation against me.
Adv Mpofu: Okay, fair enough. Okay, the last thing I want to ask you is that, let me first put it to you: I want to argue that literally anything that you have said should be taken with a pinch of salt, if it should be taken at all. Actually, it should not be accepted at all because you are an unreliable and dishonest witness. What would you say to that?
Mr Kekana: I have given evidence to this Committee, and it is up to the Committee to use that evidence any way fit.
Adv Mpofu: Yes. That is the only true thing that you have said in this Committee, is the fact that you did all this and entered into all these affidavits in order to avoid further charges being levelled against you. That is the only time you are telling the truth; that is the only motivation you have in life. Any comment?
Mr Kekana: Chair, that was not the only truth. I provided all the information to the Committee to the best of my knowledge.
Adv Mpofu: You know, as you have now confirmed in your testimony, that the interactions with SSA were deserved, because they were the signatories to the CIEX Agreement. There were those missing transcripts and that there was nothing untoward with those interactions as you have now subsequently confirmed. Correct?
Mr Kekana: I indicated that we needed to interact with SSA to get a version from them, which we never got.
Adv Mpofu: Yes. I will also argue that you know, despite all verbal gymnastics to portray it otherwise, that the meeting with the Presidency, and not the President, and we have confirmed, that the meeting was only to deal with the issue of the SIU because proclamations of the SIU are only dealt with at the level of the Presidency, and that was the only issue discussed in your presence in that meeting.
Mr Kekana: It was the only issue that was discussed in my presence. Yes, I do confirm that. We discussed the SIU in regards to the remedial action.
Adv Mpofu: Yes. Mr Nemasisi was also part of that meeting, correct?
Mr Kekana: I am not so sure. I think he might have come at a later stage, or maybe I even found him there. I am not so sure which it was.
Adv Mpofu: Last year on 28 March 2021, you wrote an affidavit for the police to assist in the prosecution of the Public Protector? Correct.
Mr Kekana: I remember doing an affidavit. That is correct.
Adv Mpofu: Yes, but you did it to the police to assist them to prosecute the Public Protector for, among other things, the unfounded charge that she had met with the President. That is what she was being prosecuted for and you assisted in that process.
Mr Kekana: I was requested to provide an affidavit to the law enforcement agencies
Adv Mpofu: Yes. The point I am making is that what you said in that affidavit was that Mr Nemesis was in the boardroom. Does that not assist your memory now?
Mr Kekana: In my affidavit, I do not remember mentioning Mr Nemasisi.
Adv Mpofu: Does this assist your memory? "On 17 January 2017, I was invited to a meeting held in the private office boardroom. When I arrived in the boardroom, I found Adv Mkhwebane and two other ladies. Adv Mkhwebane introduced me to the two ladies, indicating that the ladies were from the Presidency's legal services. I cannot recollect their names. Also present in the boardroom was Mr Ntsumbedzeni Nemasisi, former senior manager at the Public Protector’s Office. I cannot recall whether he joined the meeting after me or whether I found him in the boardroom", which is what you said to the question about his presence. You testify to his presence.
Mr Kekana: In fact, yes. I indicated that I was unsure whether I found him there or not.
Adv Mpofu: Yeah. That is not what I am talking about. I am talking about his presence.
Chairperson: I am asking you to wrap up now.
Adv Mpofu: My last couple of questions.
Chairperson: You have already said it was your last question. Five minutes. Please wrap up.
Adv Mpofu: Okay, I said it was my last topic, but I take the point. I know I have gone past the half an hour that you gave me. Anyway, Mr Kekana, unfortunately, we cannot go through the inconsistencies. I look forward to seeing you when you come to testify in the criminal proceedings. Thank you very much.
Chairperson: That concludes that cross examination session. Before Members come in, I am going to recognize Adv Bawa, as I indicated that she might have one or two issues she wants to clarify.
Clarification by Evidence Leader
Adv Bawa: There are three issues that I need to raise. The first one has to do with this "simulated subpoena" that was raised by Adv Mpofu yesterday and to make sure that there is no suggestion that the evidence leaders were involved in any manner in trying to mimic a subpoena. Endeavours were made to contact Mr Kekana. He did not respond to the overtures. Adv Mayosi sent him an SMS or WhatsApp on 23 May in which she inquired as to whether she could speak to him. He confirmed a time in the late afternoon. When she called, he did not respond to the phone call. Subsequent to that, a letter was addressed to him. He indicated he was not of a mind to give evidence before this Committee. I then indicated to him, given that there was an affidavit in the public domain, we would approach the Chairperson for purposes of issuing a subpoena.
Adv Bawa: Subsequent to the issuing of a subpoena, I indicated that we should try to make contact with him again, and see if he was prepared to talk to us. We had a Zoom meeting with him for the first time, which was our first point of contact, on Thursday night after our proceedings on the 14 July 2022. My opening question was: “Mr Kekana, can you please take us through your evidence?” His response to me was: “If you want anything from me, ask me questions.” We had a short meeting with him then and I asked him whether we could have a follow up on Sunday 17th, at which stage I sent through and scanned in various documents which I had. I also provided the documents to Adv Mpofu, indicating that I was not necessarily going to use all of them; but because I had given them to Mr Kekana, I furnished Adv Mpofu with those same documents. That was indicated as item 40 before the Committee today, including the handwritten notes which we had in possession, which did not include the handwritten note of 3 May because we did not have it. That is just to put [an end] to any suggestion that we may have been complicit in soliciting what Adv Mpofu referred to as a "simulated subpoena". That was the first issue.
Adv Bawa: The second issue was that there was a newspaper article on 17 December 2019, issued by Media 24. That newspaper article is part of the bundle, item number 39. I had indicated to Adv Mpofu last week that I was going to refer the Committee to the article for the following reason: It is what alerted me to Mr Kekana’s statement. I made contact with the media company and obtained it from them. The article effectively says a senior State Security Agency official had confirmed pivotal details of a whistleblower’s account of the conduct of the Public Protector. So I inquired from News24 what confirmation they had received in respect of that and to see whether that confirmation was reflected in the newspaper article. The newspaper article details a number of issues and News24 then obliged and provided me with the questions that had been asked of the spokesperson at the SSA on 14 December 2019, and the responses that they received to that, which for purposes of completion, and because I had obtained that, I provided this to Adv Mpofu on Sunday 17th July. I do owe him an apology. I told him about that last week, and then I could not find it amongst the hundreds of documents that we had been provided with and only found it on Sunday, which is why I did not raise it yesterday – so that he had an opportunity to look at it. Effectively, one has to look at the questions that were put for James Ramabulana and the answers that were provided by them in that regard. The Committee will get a copy of this, but there was – I do not think this is an issue as the meetings occurred and that he attended both meetings on 3 May 2017 and 6 June 2017 and that the Minister and Mr Fraser were present on 3 May 2017.
Adv Bawa: The third question asked by News24 was: “Can you confirm why you were asked to accompany the Minister and DG to this meeting?” The response was within the context of confirming that the meeting on 6 June took place: “I, indeed, attended the meeting of 6 June 2017 as part of a follow up to the earlier meeting I was at with Mr Moodley.” The fourth question is: “Do you deny that during this meeting was…?” Well, some of the answers are joined into that. He confirmed that he accompanied the Minister and the DG and that Mr Moodley had attended previously. Then question five is: “Do you deny that during this meeting, Mr Moody handed the Public Protector a typed note containing the wording of a recommendation that was to be included in the final report that ordered Parliament to amend the Constitution to effectively nationalise the Reserve Bank?” That question was not answered. The next question is: “Why did you fail to correct the Public Protector who introduced Mr Moodley to a staff member as an economist, despite the fact that he was not an economist of any kind?” The answer is: “I cannot answer why I did not correct the Public Protector when she introduced Mr Moodley as an economist. I expected him, Moodley, to do so. I, in fact, cannot even remember what she said. At the time, he was an advisor to the DG on technical matters and for that matter, he had worked in the economic sector before, in the banking sector, the Reserve Bank to be specific, but that does not mean that on the day in question, in my presence, he wrote the report. I understood his role as providing the requested technical support on the case management system.” Then the next question was, “Can you confirm that you were involved in drafting the recommendation, and if not, who assisted you and Mr Moodley?” That is not answered. Then: “Was the nationalisation of the Reserve Bank a stated project of the State Security Agency, or of yourself and a small grouping of senior SSA officials? If not, then why was the SSA involved in drafting a recommendation that had the ultimate effect of amending the Constitution under your leadership?” The answer is: “As for the SSA, as far as I am aware, we never had a project on the nationalisation on the South African Reserve Bank, as insinuated by the media.”
Adv Bawa: The next question is: “Did you discuss the recommendations, drafting and activating it to the Public Protector with either Mr Arthur Fraser or Mr David Mahlobo?” The answer is: “No, I was not part of drafting the report in question. My only part was in answering questions on the CIEX report. In fact, I was not familiar with its contents until the media wrote about it.” The last question is: “Why remain silent about your role in handing the recommendation to the Public Protector during the years of litigation surrounding the report?” The answer is: “It is anyhow the mandate and legislated role of the SSA to advise any government department, state owned enterprise and public institution, the PP included, on any matter pertaining to national security. It must be noted that national security encompasses / includes political, economic, social, environmental, scientific and technological issues. It must also be noted that the SSA can only advise and recommend to its clients. Decisions are the sole function of its clients, national, provincial, local government departments and agencies, including public institutions".
Adv Bawa: This comes up in the context of the evidence that Mr Kekana gave as to the events that occurred on 17 May and 6 June and I am raising it because we do not have the member of the SSA as a witness on our list. We have endeavoured to make contact but there are certain protocols in place for SSA members, which we have not overcome, and we may not necessarily need to, in light of this. But, given that I did obtain the information, I needed to provide it to Adv Mpofu and to put it before the Committee.
Adv Bawa: There is one other issue which I neglected to raise earlier on and Mr Kekana was asked about having provided a confirmatory affidavit and so that there is no confusion over the context of the confirmatory affidavit. Adv Mkhwebane provided the replying affidavit to the Constitutional Court in the proceedings before the Constitutional Court. Page 1152 is the reference to Mr Kekana in that affidavit where it reads: “What was discussed at the meeting of 17 June 2017 with the Presidency is clear from the handwritten notes taken during the meeting by Mr Kekana, Senior Investigator who assisted me in the investigation. The handwritten note was disclosed as part of the Rule 53 record entries and is an annexure which forms part of the record of confirmatory affidavits of Mr Kekana and Mr Nemasisi.” The confirmatory affidavit is to be found at page 1178 and Mr Kekana confirms the reply by Adv Mkhwebane and the contents in so far as it relates to him. I should have drawn the Committee's attention to that during his direct examination.
Committee Questions to Tebogo Kekana
Chairperson: I now want to call on Members, both from virtual and physical locations to interact.
Ms Sukers: Mr Kekana, I just want to ask you three questions. The first is: When you were appointed to the Private Office of the Public Protector, did you consider that a promotion and was it explained to you why you had been approached and not your colleagues? Then I want to know whether the Public Protector interviewed you prior to your appointment and what role did she play in appointing you? Did she approve of your appointment? Then, lastly, how would you describe your working relationship with the Public Protector and did it change? My first question was about your appointment to the private office and whether you would consider that a promotion, and if it was explained to you why you had been approached and not your colleagues.
Mr Kekana: The appointment to the private office, Chair, according to my view, was not a promotion. I was still a senior investigator. No one explained to me as to why I was being approached. I was just approached by Human Resources and they asked me whether I was keen to work with the Public Protector in the private office and I indicated my willingness. Chair, I was not interviewed for the position. From my understanding, it was a transfer from quality assurance to the private office. On the issue of the working relations with Public Protector, I would say it started out fine. We had very cordial relations but I think after the CIEX report, and when it got challenged, and the ensuing consultations that we had with our attorneys, the relationship between her and I became distant, if I may put it like that.
Mr Mileham: I have 14 questions. Could I ask that they be answered individually? Is that okay?
Chairperson: I do not determine the style of questioning.
Mr Mileham: Thank you, Chairperson.
Chairperson: Mr Mileham, the number of questions and the style, I do not determine Okay. Anything else thereafter I determine.
Mr Mileham: Thank you. Mr Kekana, could you perhaps tell us why the Public Protector needs a political advisor?
Mr Kekana: I would not be sure about that. There never was any reason that was advanced to me as to why the PP needed that political advisor.
Mr Mileham: Just as a follow up to that: Should politics have any influence whatsoever in the investigations or decisions of the Public Protector?
Mr Kekana: According to my knowledge, no.
Mr Mileham: Okay, thank you. What role does a staff member’s political affiliation play in the Office of the Public Protector?
Mr Kekana: Usually it has no role at all, because we will be entrusted with being impartial and doing investigations with integrity.
Mr Mileham: Thank you. Was there any evidence provided about Ms Erika Cilliers that she was a DA member?
Mr Kekana: Not that I am aware of.
Mr Mileham: Thank you. Can you tell us why the Public Protector did not want the Gupta Leaks allegations used in the Vrede Dairy investigation and perhaps to contextualise it? If they are allegations, surely it is incumbent on the Public Protector to investigate them?
Mr Kekana: As I indicated, I was just told by Mr Ndou that we should not follow that. I have indicated that I did not get any reasons why we should not follow that lead.
Mr Mileham: On the same topic, do you agree that the Public Protector’s decision to narrow the scope of the Vrede Dairy Report or investigation was irrational, and I am going to quote from the court judgment in the DA vs Public Protector case, “as it sidestepped all the crucial aspects regarding the complaints and led to a failure on her part to execute her constitutional duty?” Do you agree with that statement?
Mr Kekana: I have a view, Chair, that in us drastically amending or reviewing that report, where we took out most of the information, it was not the right thing to do.
Mr Mileham: Thank you, Mr Kekana. Had politicians been implicated and/or had adverse findings against them prior to the Vrede Dairy report? If so, were their names removed from those other reports?
Mr Kekana: Chair, in my memory, I remember seeing draft reports or a draft report with some form of finding against political office bearers.
Mr Mileham: Okay, were the names removed?
Mr Kekana: From our report, we did remove …I do not think our report had such findings. But I remember that previous reports had such findings. In our report, we did remove anything that was negative towards the political office bearers.
Mr Mileham: You spoke about the meeting, and there has been a lot of discussion around the meeting that was held at the State Security Agency. Is it normal for the Minister in any department to be present when the Public Protector does an investigation in their department?
Mr Kekana: Yes, sometimes we do have Ministers attending such investigative meetings, and maybe just to correct that, Chair. We did not have a meeting at the SSA; we had a meeting at the Public Protector’s Office.
Mr Mileham: Thank you for that correction. Mr Kekana, with regard to the email from yourself to Mr Goodson, the full sentence in that email reads: "The Public Protector wishes to meet with you.” Now my question to you is, is it your opinion reflected in that email or was it the view of the Public Protector that Mr Goodson had extensive knowledge of the South African Reserve Bank and central banks in general?
Mr Kekana: That the Public Protector had always wanted to, or was the one that wanted to meet with Mr Goodson. I believe she had a view that he would be useful in our investigation.
Mr Mileham: In the Report of 2017, in clause 7.2.1, that particular paragraph refers to the remedial action proposing the amending of the Constitution. Was that the clause that the Public Protector requested or instructed you to insert?
Mr Kekana: Through you, Chair, let me just have a look at the paragraph. Chairperson, can it be repeated?
Mr Mileham: 7.2.1.
Mr Kekana: Yes. What was the question again?
Mr Mileham: So my question was: Was that the paragraph that the Public Protector instructed you to insert about amending the Constitution?
Mr Kekana: That is correct.
Mr Mileham: Why did you find the proposal in the remedial action to amend the Constitution, to use your word, bizarre?
Mr Kekana: According to me, it was irrelevant to the investigation. That is why I found it bizarre.
Mr Mileham: My last question is this: Is it normal for other departments that are involved in an investigation to provide the wording for a remedial action or for members of such a department to do so?
Mr Kekana: According to my experience at the Office of the Public Protector, it was the first time I experienced that. For me, it was not normal.
Chairperson: Thank you very much; you have just met my limit.
Mr Nqola: I have a few questions emanating from the affidavit deposed by Mr Kekana who alleges that during the CIEX report, a provisional report was leaked. It had been in the hands of himself, other officials and the Public Protector but the leaked information had material errors and was not subjected to quality assurance. Has there been an investigation, summonsed by the Office of the Public Protector or the Public Protector to investigate how the provisional report was leaked so the office is able to prevent leaks?
Mr Kekana: If I remember, well, I was told of the leak by the Public Protector. If I remember well, I think the Public Protector did make a report to the law enforcement agencies in regards to that. I am not aware whether there was an internal investigation at the Office of the Public Protector in relation to the leak.
Mr Nqola: As an investigator and report writer in the private office of the Public Protector, should you have been made aware of any investigation by law enforcement of the Office data leak, or any investigation done by law enforcement agencies as the person who was responsible for the provisional report. Should you not be made aware if there was any investigation, whether internal or external?
Mr Kekana: As I indicated, I was made aware of the leak and if I remember correctly, I think the PP did report this matter to the law enforcement agency. I was made aware of the leak of the preliminary report or provisional report. Okay.
Mr Nqola: Fine, let us leave that. In the affidavit you deposed there was a meeting with the Black First Land First (BLF) movement, where the provisional report was discussed. You say in the affidavit that they could not be a complainant in the matter. But you continue and say, however, Adv Mkhwebane invited the BLF to make submissions first on the investigation although the BLF was in no way involved in the matters pertaining to the investigation, or any other relevant matter. If the PP allowed the BLF movement to be part of or submit any issue pertaining to this report, who is this person who said they cannot be complainants in this matter?
Mr Kekana: The PP indicated to the BLF that they could not be complainants in the matter.
Mr Nqola: But they were later allowed to.
Mr Kekana: I confirmed that they were allowed to give input.
Mr Nqola: Okay, then let us go to what you call a private meeting with the SSA and the Public Protector South Africa. You mentioned that before that meeting resumed, you were shocked by a meeting between the Minister of SSA, Hon David Mahlobo, and the Public Protector. In the time that you served in the private office of the Public Protector, had it ever happened before or was that the first and the last meeting that happened before the actual meeting?
Mr Kekana: That was the only incident that I observed.
Mr Nqola: You say there was a meeting where the Public Protector actually instructed you not to record or take minutes or else you were prohibited from taking minutes or recording in that meeting. Were any reasons provided to you as a person who usually records and takes minutes of meetings between departments and the Public Protector?
Mr Kekana: No, I was not given the reasons as to why I could not record.
Mr Nqola: Let us go to the South African Reserve Bank and constitutional amendment matter. You have answered Adv Mpofu and Hon Mileham that you believe strongly that the amendment of the Constitution, as it was suggested by the report, was actually irrelevant to the investigation you conducted on the Reserve Bank. Was that so?
Mr Kekana: Yes, that is correct.
Mr Nqola: Yes. Now do you think that it falls to the powers and the jurisdiction of the Office of the Public Protector to suggest such a major amendment in the supreme law of the country?
Mr Kekana: According to my view, I do not think so.
Mr Nqola: In paragraph 24 in your affidavit, you say you learned that the Public Protector had appointed new attorneys and counsel. In your experience as the person who was working closely with the Public Protector, what was the process of appointing or hiring legal counsel and attorneys?
Mr Kekana: I was not privy to that process. That process was handled by our legal services unit. I would not be aware of the process of appointment and terminations of attorneys and counsel.
Mr Nqola: In paragraph 42 you realise that Adv Mkhwebane did not care if the reports were taken on review or not. Do you mind if you can elaborate a little bit on that?
Mr Kekana: What I remember is that while we were going through the report, taking out information, Mr Nemasisi did warn the Public Protector that removing such information could lead to a review. I remember the statement that she made – she did not care whether the report would be reviewed or not.
Mr Nqola: Thank you. Did the South African Reserve Bank ask the Office of the Public Protector if it would be furnished with the report before it was published? If the answer is in the affirmative, was there adherence to the request? The last question would be what the general procedure is in terms of your report – should there not be consultation of the affected persons before the issuing of the final report?
Chairperson: Thank you, go ahead. Mr Kekana. That is the last question from the Member.
Mr Kekana: Can I just get clarity on the 'adherence to'?
Chairperson: Yes. Can you make it precise, Hon Nqola?
Mr Nqola: I am saying was there a request from the South African Reserve Bank that the Public Protector South Africa should furnish it with the provisional report before the final report was issued? Was there adherence to that? What was the general procedure?
Mr Kekana: On the score of the meeting with the South African Reserve Bank before the report was publicised, I do not recall. But I think there was correspondence from the Reserve Bank about a meeting. But I do not clearly recall unless I can be shown a document which will refresh my memory. In regards to consulting before the issuance of a report, Chair, my understanding is that if there were no significant changes to our preliminary report, especially emanating from our section 9 notices, then we would not consult with the affected parties. But if, after issuing the notices and/or the preliminary report and we had significant changes to it, the right thing to do would be to consult with the affected parties on those changes that had been made because we had not consulted them on those changes. It would be a proper to consult with them on the changes.
Chairperson: Thank you.
Mr Herron: Thank you, Chairperson. Thank you, Mr Kekana. I want to go back to the time when you were removed from the private office of the Public Protector. You say in your affidavit at paragraph 37 that, and I think you have said it in evidence too, was because you were saying too much to lawyers representing the Public Protector in the review proceedings. So was this about your previous evidence in your affidavit and orally that the Public Protector’s recommendation came from the SSA and things like previous drafts of the reports should not be included in the review bundle, in other words, in the Rule 53 documents? Is that what you are referring to when you say "too much to lawyers"?
Mr Kekana: I did not get any reasons. I did suspect that it related to that.
Mr Herron: I quote Mr Kekana, “I was told that it was because Adv Mkhwebane was of the opinion that I say too much to lawyers.” So is that wrong?
Mr Kekana: No, I am saying that that is correct. I was told that the PP said I was talking too much to attorneys, but I am not so sure on which subject matters I was talking too much to the attorneys. I suspect that it might have been the issues on the SSA.
Mr Herron: Thank you. Where and when you were appointed as the lead investigator on the Vrede Dairy project, after the removal of Miss Erika Cilliers? When was that?
Mr Kekana: I was also trying to resuscitate my memory on when we were allocated to that matter, but I just could not find the time period, or when specifically we were allocated to that matter.
Mr Herron: But were you still in the private office of the Public Protector or had you then moved to the provincial integration unit?
Mr Kekana: Yes. That is my problem as well, I do not remember because in December of 2017, I was transferred to the Provincial Investigations and Integration. I really do not remember when this matter was allocated to us.
Mr Herron: I am trying to understand whether you were in the private office of the Public Protector, when you were first appointed the lead investigator of the Vrede Dairy project, or whether it was after you were moved from the private office?
Mr Kekana: Yes. That is where I am struggling with my memory, Chairperson. If I could find the data, I could confirm whether I was in the private office or I was in Provincial Investigations and Integration, but my memory is failing me on that.
Mr Herron: But in any event, Mr Kekana, you continued to work on the Vrede Dairy project after being removed from the private office of the Public Protector?
Mr Kekana: That is correct.
Mr Herron: You said that Mr Ndou informed you or instructed you that you should not include any finding against any politician? Is that correct?
Mr Kekana: That is correct.
Mr Herron: Was that before the meeting on the 8 February 2018 when you met directly with the Public Protector and the Manager: Legal Services?
Mr Kekana: If I remember well, it was before the meeting on the 8th.
Mr Herron: So, at the meeting on 8 February, you were saying in your affidavit at paragraph 42, Adv Mkhwebane instructed you to remove material information relating to the investigation, including information relating to the inflation of goods and information related to beneficiaries, but she was not referring to any politicians in that meeting.
Mr Kekana: I think in that meeting, there was no reference to that because in that meeting, maybe let me take you a step back at paragraph 41; I do state that Mr Ndou, on the Public Protector’s instruction, told us that we should remove any adverse findings against the politicians. On the meeting of 8 February 2018, Mr Ndou was not present in that meeting, so we were told to remove those findings before that meeting occurred. It was not in that meeting.
Mr Herron: If I just move on to the meeting that the Minister had with the Public Protector privately, can you just sketch the scene? How did you know that the meeting was private between the Minister and the Public Protector? Were you waiting outside in a waiting room? You saw the two of them come out of the meeting? I mean, how did you know that there was no one else in that meeting?
Mr Kekana: If I remember well, I did go to the private office when I was alerted that the meeting would begin. I think there was a time set for that meeting. When I arrived at the private office, I do not remember who told me, but that person indicated to me that there was a meeting between the Minister and PP and that I should wait.
Mr Herron: Did someone tell you that there was no one else present, or you saw that there was no one else present?
Mr Kekana: I think when they came out, that is when I noticed because when they came out, that is when I noticed that it was just the two of them.
Mr Herron: Can we move on to the parts when you do attend the meeting, and you are instructed not to record the meeting? Also not to take notes? As we have seen today, you did actually take some notes? What happened to those notes after you took them?
Mr Kekana: To those notes? I just put them in my file.
Mr Herron: So they were then in the file? Is that how they were included in the Rule 53 discovery documentation?
Mr Kekana: I would assume so, yes, that is correct.
Mr Herron: Can we just refer to TK3, which is the email that the Public Protector sent you in which she says: “I will go through it and we will meet to finalise. Ask the SSA to provide input from an economist,” which you say was inexplicably excluded from the Rule 53 discovery and was never disclosed until now. It was deposed to your affidavit in December 2019 but how did you manage to disclose it in December 2019 if it was written in 2017 and your emails, particularly your emails between yourself and Adv Mkhwebane, were removed from your laptop?
Mr Kekana: I printed out from my Mimecast application. It is an application that is used to backup emails. It was the one of the emails that I fortunately found; some of the other emails were not there.
Mr Herron: So did you retrieve it in August 2019? Is that correct? When you got your laptop back? Sorry.
Mr Kekana: I am not so sure when I received it. But I did notice that some of the emails from the PP on Mimecast were still there and this was one of the emails that was there.
Mr Herron: I just have two more short questions, Chair. Mr Kekana, when you were asked by the Public Protector in May 2017 to run it past a third person and then, when she had read it, she suggested Mr Matlawe – did you send it to Mr Matlawe or the third eye or another eye to look at the draft report?
Mr Kekana: Yes, if I had received those instructions, I would have carried them out. Naturally, I think or I believe that I would have sent that email with the draft to Mr Matlawe.
Mr Herron: Then on 17 June, when you wrote back to the Public Protector, you said "unfortunately, Matlawe was not there". Would you have sent the report to Mr Matlawe or his third eye to look over it, or the third person, to look over it? Then you received it back from Matlawe, after he had checked it or polished or quality assured it or looked at it, and then you submitted it to the Public Protector. What does it mean by “Matlawe is not here”? I mean, did you send it and you did not get it back? I do not understand what you mean.
Mr Kekana: The meaning is that Mr Matlawe was not at the workplace at the time. Just to give more clarity: The draft on May 2017 and the final report on June 2017 were two different documents. The one in May was just a draft, which was still incomplete. But, if I can recall, the June document was the complete final draft.
Mr Herron: I think I understand that, Mr Kekana, because it was an iterative process. You drafted it, it was redrafted and according to the Public Protector’s instruction you sent it to Mr Matlawe for a third eye or another person to look at it before it was finalised. When you sent the report on the 17 June to the Public Protector, it had come back from Mr Matlawe, after he had looked at it? Am I correct?
Mr Kekana: I think in May, when I was instructed to do so, I did give it to Mr Matlawe. I am not so sure whether I received it back. My memory would need to be refreshed on that. But also the final draft, that was now around 17 June 2017, I was also supposed to send that one to Mr Matlawe. But he was not available at work.
Mr B Herron: I am just trying to understand. In your affidavit, you say that you mentioned to Mr Matlawe that the document or the report had been released and he was taken aback. I am really struggling to understand. You sent it to Mr Matlawe - you say you followed that instruction. You received the report back, you assume. Then the report is released and he is taken aback as he never got to see it.
Mr Kekana: Yes. Usually the final report, that would be the final draft around June 2017, that draft was supposed to be sent to Mr Matlawe but he could not be found on that day. I did indicate to him that the report was never QA’d and he was taken aback by that suggestion.
Mr Herron: Mr Kekana, the report that you sent on 17 June to the Public Protector as a final draft, was that the same report that was published on the 19 June, two days later?
Mr Kekana: I think more or less it was the same report. Because what I remember is that Mr Matlawe was not there, and I did indicate to the PP that Matlawe was not there. She then did her own quality assurance of the final report. Then she signed it on the 19th, I think.
Mr Herron: The report that was released on 19 June was, as you say, more or less the report that you wrote.
Mr Kekana: That is right.
Ms J Hermans (ANC): I will also be referring to the CIEX investigation in your affidavit, in particular paragraph 17. I know you have been asked questions about this already. But can I ask you, did you have sight of the provisional report before it was leaked?
Mr Kekana: No, I was not involved at all in the drafting or the publication of the provisional report. I remember, at that stage, I was not involved in the investigation thereof.
Ms Hermans: What in your opinion was the motive for the removal of the information that was omitted? That was removed from the report? In your opinion?
Mr Kekana: Does that refer to the information about Mr Billy Masetlha?
Ms Hermans: The information that was removed from the report, that was omitted?
Mr Kekana: That was omitted from the CIEX report? I do not understand, Chair.
Ms Hermans: The CIEX report. If you go to paragraph 17. It refers to Mr Billy Masetlha. Yes.
Mr Kekana: I am not so sure why and how these documents relating to Mr Billy Masetlha went missing.
Ms Hermans: Then my next question relates to the Vrede Diary project. Can you just tell us whether the Public Protector provided any reasons why the Gupta Leaks should not be used in the investigation or included in the report?
Mr Kekana: We never got any reasons as to why we should not follow the Gupta Leaks.
Ms Hermans: Or whether it should be included in the report. You did not get any reasons from the Public Protector?
Mr Kekana: No, we did not get any reasons. We were just informed by Mr Ndou that we should not follow the lead involving the Gupta Leaks.
Ms Hermans: Okay, and you did not raise any query in that regard?
Mr Kekana: No, Chair, we did not.
Ms T Mgweba (ANC): Mr Kekana, regarding the CIEX investigation in paragraph 15, you have indicated that the Public Protector provisional report leaked. Since you started employment with the Office of the Public Protector in 2011, do you know if it was a common practice for some provisional reports to be leaked? Or was it the only report leaked?
Mr Kekana: If I remember, I think this was, for me, the first time that I heard that a provisional report was leaked. I am not so sure whether there were any other reports that were leaked. My memory is not serving me right on that one. But I think it was one of the only incidents which I experienced of a report that was leaked.
Ms Mgweba: Mr Kekana you have stated in paragraph 54: “It therefore appears that the purpose of the precautionary suspension is to punish, to harass and victimize me as a result of me raising concerns of maladministration within the Office of the Public Protector.” Can you please elaborate further? Secondly, with whom did you raise these concerns?
Mr Kekana: The way that the precautionary suspension happened, I felt that the process that ensued was because I was raising issues of maladministration within the Office through the union. That might be why I was put on suspension.
Ms Mgweba: You have not responded to the last question. With whom did you raise these concerns?
Mr Kekana: I raised the concerns with the PSA, my union, Chair.
Dr M Gondwe (DA): Can I ask him all the questions and then he can answer them afterwards?
Chairperson: We will do what we can to make sure he answers. Before he responds, we will make sure he gets all your questions.
Dr Gondwe: Mr Kekana, can I ask you the questions and then you respond to them? Not one by one, but when I have gone through all?
Mr Kekana: I do not have an issue with that.
Dr Gondwe: Okay. My first question is around the complaint that was initially launched with the Office of the Public Protector in relation to the CIEX investigation. Who is the subject matter or focus of the investigation? Was it CIEX, was it SSA or was it Bankorp? When the investigation was revisited under the auspices of Adv Mkhwebane, did the subject matter or focus of the investigation remain the same, or did it change?
Dr Gondwe: With respect to the Black Land First, the organization, you submitted in your oral evidence that it was not allowed to come in as a complainant, but was allowed to make submissions or inputs. Do you recall what those submissions or inputs were? If they bore any relevance to the investigation?
Dr Gondwe: My third question is that you stated in your oral evidence before the Committee that during the meeting with SSA, you do not recall there being a discussion on the vulnerability of the Rand and the Reserve Bank, but there were discussions rather on the Reserve Bank and the fact that it was prone to looting and about its vulnerability during the apartheid era. Can you confirm what those discussions were based on? Were they based on the book by Mr Goodson or on the comparative research articles that you made reference to in the course of your oral evidence? The next question also relates to the meeting with SSA. You stated in your oral evidence before the Committee that, in your view, the meeting was an investigating meeting, and you had, as such, prepared questions that the Public Protector could ask in relation to the investigation during the meeting with SSA, do you recall how many questions you prepared? Did you email these questions to her? Do you recall what some of those questions were that you prepared, and, if you have recollection of any of this, can you share it with the Committee please?
Dr Gondwe: You also stated in your oral evidence before the Committee that you took the view that the recommendation that the South African Reserve Bank be nationalised and the Constitution amended, that such a recommendation was irrelevant to the report. Can you explain to us why you took this view that such recommendation was irrelevant to the report? And, we just want you to take us into your confidence around why you took this view, because you have mentioned on more than one occasion, in the course of your oral evidence before the Committee, you stated that several draft reports were penned before the final report was released and none of them contained the recommendation to amend the Constitution. Can you tell us what sorts of recommendations were contained in the draft report? Again, in your oral evidence, before the Committee and just touching on what was raised by Hon Mgweba around the leaking of the preliminary report, do you perhaps know how and when this report was leaked? In whose possession was the report before it was leaked? The first set of questions relate to the CIEX investigation.
Dr Gondwe: My next set of questions relates to the further investigation. In paragraph 14 of your affidavit, you state that the Public Protector issued an instruction that the Gupta Leaks emails should not be used in the Vrede Dairy investigation. Please confirm if she issued this particular instruction to you personally, or whether it was one of those instructions issued via Mr Ndou, because you mentioned that Mr Ndou informed you that she had also issued an instruction that you should not make any adverse findings against any politician, including the former Premier of the Free State and the former MEC of Agriculture. I want to find out whether this was – because there were three sets of instructions issued in this regard. I just want to confirm whether that first instruction was issued to you, personally, or it was also issued via Mr Ndou. And that goes to my second question around the Vrede investigation about adverse findings against politicians. Do you recall what those adverse findings were? Who the implicated politicians were? In other words, did the Office of the Public Protector make adverse findings? You were instructed not to make adverse findings, so I am trying to figure out whether there were any adverse findings made in the first place. When responding to this question, please indicate what those findings were and who those findings were made against – whether they involved politicians, and if possible, state which politicians.
Dr Gondwe: My last question. You stated in the oral evidence before the Committee that there was a collective effort to remove the adverse findings, which resulted in the issue of the inflated goods being removed and the information relating to beneficiaries also being removed? Please explain what you mean by “there was a collective effort” and who was involved in making that collective effort to remove the findings?
Chairperson: Thank you. Mr Kekana, please respond one by one to all of those questions. The platform is yours.
Mr Kekana: I hope I have captured all the questions correctly. In regards to the first question, the focus of the investigation was on the South African Reserve Bank, the South African government and the SSA and Absa. In regards to the parties, the focus did not change, but there were issues of nationalisation and amendment of the Constitution, which were new matters, which I could ascribe as a change. Chair, in regards to the BLF, I do not recall what the BLF inputs were specifically but I remember that I never used any of the inputs in the report. If memory serves me right, it was because I did not think they were relevant to the investigation. On the meeting with SSA relating to the discussion of the vulnerability of the South African Reserve Bank during the apartheid era, I am not really sure what those documents were based on. They were certainly not based on Mr Stephen Goodson’s book, but I just do not know what those discussions emanated from. Again, in regards to the meeting with the SSA, I did prepare a pack of questions for the Public Protector. I do not specifically remember how many questions, but I had a number of pages with questions and I am afraid I am not in possession of them so I cannot share those questions. I do not also specifically remember the types of questions but I would suspect they would involve the role of the SSA in the investigation. My notion as to why I viewed the issue of nationalisation and the Amendment as irrelevant was that the issues relating to the investigation were primarily around the jurisdiction of the Public Protector, whether the South African government had entered into an agreement with CIEX, why the South African government had failed to implement the CIEX report and whether the South African government and the SA Revenue Service (SARS) failed to recover monies owed by Absa. That is why I am of the view that the issues revolving around the nationalisation and the amendment of the Constitution were irrelevant, according to my view.
Mr Kekana: In regards to the draft Vrede reports, in one of the draft reports that I saw, there were findings around political office bearers. Those findings related to, I cannot specifically remember the specific findings in those drafts, but I remember that the political office bearers knew about the irregularities that were happening in the project. On the leaking of the provisional report, I learned about the leaking of the provisional report in January 2017, when I was informed by the Public Protector. I knew that the previous investigator who had been working in the private office was working on that matter with the Public Protector. From my knowledge, Chair, those two individuals were the ones that were working on the provisional report. In regards to the instructions relating to the Gupta Leaks, and those relating to findings against politicians, we only got the instructions from Mr Ndou, and those instructions never came personally from the PP.
Mr Kekana: The last question was the collective effort to remove things in the report. In that meeting of the 8 February, the people who were involved in the removal in that meeting were the Public Protector, Mr Nemasisi, Mr Nditsheni Raedani and Mr Muntu Sithole, and myself. I am not so sure whether I captured all the questions. If I have not, I request to be directed to any that I have missed.
Chairperson: Thank you, Mr Kekana. I will check. But I shall make sure that she does not smuggle any other question besides the ones that you have missed.
Dr Gondwe: I am not going to smuggle anything, Chair. Can I ask if you remember those adverse findings? They must have been contained somewhere. My question was what were those adverse findings? Did you make them? So I am not entirely sure whether you answered that in your response.
Chairperson: So you asked the witness the actual adverse findings that were made, that is, in relation to the Vrede Dairy?
Dr Gondwe: Yes, in relation to the Vrede Dairy investigation. He said there was a collective effort to resolve those adverse findings. You cannot remove them unless they exist.
Chairperson: Mr Kekana?
Mr Kekana: Yes, sir. As I indicated in the previous drafts that we had – remember that the file came from the Free State Office – I believe that there were adverse findings made against two politicians. I cannot remember the specific findings, but what I remember is that those political office bearers knew about the irregularities that were happening in the Vrede project.
Chairperson: Okay, well, we will leave it there. Thank you. I now recognise Hon Lotriet.
Dr Lotriet: Good afternoon, Mr Kekana. A number of my questions have already been asked, so there are only a few remaining. Now, we have looked at the meeting with SSA and the questions that you prepared. Was it standard practice that you prepared questions for the Public Protector before any such kind of meeting?
Mr Kekana: Yes. According to my knowledge that was standard practice.
Dr Lotriet: Was this the first time or have there been other instances when your questions were not used?
Mr Kekana: I said that was the first time that my questions were not used.
Dr Lotriet: Thank you. Also in terms of standard practice procedure, and in your evidence, you refer to the handing over of your laptop to a firm of attorneys. Was that standard practice? Had it happened before that laptops of investigators or a senior investigator were handed to a third party?
Mr Kekana: No, that was never standard procedure.
Dr Lotriet: Do you have any knowledge whether this particular firm had any security clearance?
Mr Kekana: I did not have any knowledge of that. That was one of the issues I did raise with the employer, whether this firm had security clearance or not.
Dr Lotriet: To your knowledge, was the laptop accessed in the presence of anyone from the Office of the Public Protector?
Mr Kekana: I do not have knowledge of that.
Dr Lotriet: Thank you very much. Mr Kekana, if we now turn to, well, I am hesitant to call them experts, but the economists. Now in your investigations and your experience since 2011, at the Office of Public Protector, how was it determined who would be considered, for example an economist, someone who could provide valuable information? Is there an operating procedure or policy to do that?
Mr Kekana: I am not aware of that procedure. But I would think that if someone was requested or required to assist the Public Protector, it would go through a formal process of procurement or maybe the Public Protector could motivate for such. But it would be well known beforehand that we would require an expert in a particular field. I remember in my investigations when I needed experts, maybe engineers, I give that example because I did the request for an expert in one of the investigations, one had to go through the procurement process.
Dr Lotriet: I now want to go to the recommendation to review or amend the Constitution. This has been discussed earlier in your testimony and, if I look at Section 224 of the Constitution, it states clearly that the primary object of the South African Reserve Bank is to protect the value of the currency. Now, if I look at what we have been presented with, and the proposal for a recommendation, that is quite a dramatic move from protection of the currency to promotion. I would like to know, because this morning we were also introduced to the documents by Neels van der Merwe. Now in relation to that, before I go further with the actual amendment or proposed amendment, who requested or instructed Neels van der Merwe to do this comparative study?
Mr Kekana: I think it was the PP because I was not in a position to instruct Adv Neels van der Merwe because he was my senior at the time.
Dr Lotriet: Thank you. In this [Neels van der Merwe] document – and I also asked this morning, whether this is the full document that we have at our disposal – I can only find two proposals and only one referring to section 224 of the Constitution and that is at 3.9, that as an organ of state, the Reserve Bank is accountable to Parliament to ensure that it uses its powers in a legitimate manner, while at all time attending to the important independence of the Bank. A bit higher up in this comparative study at 3.7, it is also noted that an independent central bank is a better guarantee of the value of the currency and thus of a generally sound economic basis for the state’s budgetary policies. Now, I cannot really find this in the proposed recommendation in terms of changing section 224 to go from protection of the currency to actually remove that. In your opinion, Mr Kekana, did the Public Protector rely on this comparative study done possibly on her instruction, as you say, to draft that recommendation?
Mr Kekana: I am not so sure. I also am not sure whether this information from Adv Neels van der Merwe came before we publicised the final report or after we publicised the final report. I am not so sure whether it influenced the proposal to amend the Constitution. I am really not so sure. I cannot recall what Neels’ brief was in regard to drafting the comparative study.
Dr Lotriet: Thank you. I see that the front page does indicate that these would be the actual principles applicable to the independence and governance of the South African Reserve Bank and proposals for the review of sections 223 and 225 of the Constitution, so I think that would have been the brief. But let us leave it there. Mr Kekana, I just want to ask for my own clarity and to make sure that I heard you correctly. In terms of this recommendation to amend the Constitution, was your evidence earlier in response to one of the questions that it was not informed by the books of Stephen Goodson. Did I hear correctly?
Mr Kekana: Yes. This Amendment that we received came straight from the SSA. The amendment or the TK4 note, Mr Goodson never made any input in it. It came directly from the SSA.
Chairperson: I now recognise Hon Holomisa.
Dr B Holomisa (UDM): Thank you, Chairperson. Mr Kekana, on a number of occasions, when Adv Mpofu asked you questions, you kept on saying you do not remember. The question is: do you think the evidence leader gave you enough time to prepare for your appearance before this Committee? If the answer is not in the affirmative, would you wish to be given more time to respond in writing to areas you said you do not remember? Lastly, my question is directed to the evidence leader. Are you planning to call some of the people who attended meetings with the Public Protector, especially regarding Reserve Bank related discussions so that we can hear both sides? We have heard his version but it is important since he was not working alone with the Public Protector and sometimes you hear other names being mentioned. We would like you to respond on that. Thank you.
Mr Kekana: It must be emphasised that I really did not want to come and testify to the Committee. One of the reasons that I did advance, was that my memory in regards to certain events, and especially, events that had happened some time ago, was impaired. I do not think, under the circumstances, I was given enough time to prepare for the discourse that we have been having for the past two days but I believe that I have answered all the questions to the best of what I could remember. If maybe I could have been provided with documents, or emails from the Public Protector’s Office, I think I could have contributed more, especially regarding the things that I could not recollect.
Chairperson: Thank you. Adv Bawa.
Adv Bawa: We have endeavoured to be guided by the motion in respect of the evidence we are calling and if the Member’s question is, are we going to be calling some of the names that have been referred to today, that is our intent.
Chairperson: Thank you. I now recognize Hon Mulder.
Dr Mulder: Thank you, Chairperson. I have been covered to a certain extent by some of the questions asked by some of the colleagues, but I have got six questions for Mr Kekana. I think the answers could also be short and brief. I want to start off by dealing with the same point that Gen Holomisa made. During your cross examination Adv Mpofu wanted the Committee to believe that we should not give any value to your testimony because of, as he put it, your impaired memory. Now, your evidence in main was basically based on your affidavit, which was drawn up about three years ago. Am I correct if I say that, obviously, your memory must have been much better then because three years ago, when you drafted the affidavit, it was much closer to the events? Secondly, in the same vein, many of the things that you were questioned about are things that happened more than five years ago. Am I correct to say that most probably most Members of the Committee, as well as most Members of the Bar, would not be able to recollect what was in emails of five years ago without having the privilege to go through them again and to refresh their memories? Am I correct?
Mr Kekana: That would be correct.
Dr Mulder: You were making the point that the SSA was involved in the formulation of the constitutional amendment. Then Adv Mpofu went through a whole process to convince the Committee differently and was asking you all kinds of questions about the need and that there was a study done, a comparative study in terms of other economic models, etc, etc. And then he referred to what he called your theory. Those were his words: “your theory”. Now I want to ask you, in paragraph 26 of your founding affidavit, you say: “On or around 6 June 2017, I attended a meeting with Adv Mkhwebane and representatives from SSA, namely Mr Moodley and Mr James Ramabulana.” Then you say the following in paragraph 27: “During the meeting, Mr Moodley produced a single page, which contained a draft of the proposed recommendations which were to be inserted into the final report.” In terms of your recollection, in how you worded this in the affidavit, would you say that that is a theory or is that something that you personally experienced because you were there when this happened?
Mr Kekana: I would like to put it as an experience rather than a theory.
Dr Mulder: You were there. It is not a theory. You were there.
Mr Kekana: I was there, Chair.
Dr Mulder: Finally, Chairperson. Adv Mpofu tried to make the point throughout cross examination that it was absolutely normal for the SSA to interact with the Public Protector because of a contract that was signed between the SSA and CIEX and, because of that, it was absolutely normal that there should be interaction between the SSA and the Public Protector’s Office. Would you agree that there is a huge difference between interacting with a company like CIEX that investigated possible misappropriation of funds on the one hand and on the other hand where SSA provides the exact wording to change the core mandate of the Reserve Bank as a proposal in the Constitution? Would you agree that there is a complete difference between interacting in terms of a normal contract where there was an investigation – up to the point where the Public Protector’s Office interacts with SSA and the specific wording for an amendment of the Constitution comes out of that process?
Mr Kekana: I agree there is a difference.
Dr Mulder: My fourth question deals with paragraph 25, where you refer to TK3 and that is a document which did not form part of the Rule 53 record. Adv Mpofu tried to make the point that you are responsible for providing that record and if that specific email from SSA was not in that record, it was because you did not put it there. Is it possible that somebody in the Office who might have had access to the file could have removed that specific email before you put the record together? It is not a question of whether it could be any of 60 million South Africans; it needed to be somebody in the Public Protector’s Office. Is that a possibility?
Mr Kekana: I think what I testified was that I gave the complete file or record of the investigation to Mr Nemasisi. What happened thereafter, Chair, I am not sure. That could be a possibility, but I do not attest to that.
Dr Mulder: Thank you. Adv Mpofu made the point on a number of occasions that it is absolutely normal that people sometimes make suggestions and proposals for amendments to the Constitution. By arguing that, he argues that the Public Protector did the same and it is an absolutely normal thing, it's nothing strange, etc. However, we all know that when it comes to the remedial action of the Public Protector, everyone is bound by that remedial action and you have to comply with that remedial action. In terms of the remedial action of the Public Protector report, she instructed the Chairperson of Parliament's Justice Committee, Dr Motshekga, to start proceedings to amend the Constitution. Would you agree that that is something completely different from somebody who suggests that maybe we should look into some provision in the Constitution? Would you agree?
Mr Kekana: I would agree.
Dr Mulder: My last question deals with the two emails. The first email, that is the one that deals with the quality assurance and there was some uncertainty in terms of the date. The date of the first email was 18 May and the second email was a month later on 17 June. Do these two emails relate to the same report? In one of those two emails, there is a part that says, “We, including the Public Protector, will have to go through this report page by page.” Did that actually happen?
Mr Kekana: Sorry, I think that there are two questions in there. Can the Hon Member, please repeat that for me?
Dr Mulder: The first question deals with the first email of 18 May. The second email is a month later on 17 June. The second email said that the other gentleman was not there that day. But it was a month later. Obviously, if it dealt with the same report, it meant he was not there on that day. It did not mean he had not been there for the last month, so he should have done the quality assurance. The question I am asking is this: In one of those two emails, there is a paragraph, and I think it is the email that comes from the Public Protector, which says: “the three of us will have to go through this report page by page.” That implies that the Public Protector will also have to go through it page by page. Do you know if that actually happened?
Mr Kekana: I do not recall that happening.
Chairperson: I recognise Adv Mpofu.
Adv Mpofu: Yes. I just want to point something out that I do not think what Hon Mulder is doing is correct. I do not want to interrupt the questioning but it is completely valueless to ask the witness whether he agrees or does not agree with a question that I put to him. What is more important is for me not to be misrepresented. I really do not take kindly to that. Hon Mulder said that I said that the witness should not be believed because of his impaired memory. Now, that is a half-truth. It is not even a half-truth; actually it is a third or less than that. If you are going to quote me, quote me fully, and please do not misrepresent what I said, because I did tell you about the memory, but I also said that the witnesses is dishonest and evasive, and a whole lot of other things. Either ask your question and do not say Adv Mpofu said this, because if you are going to say that, then you must say exactly what I said. I take strong exception to being used as a Trojan horse for questions and using things that I did not say or distorting what I said by referring to only a part of it. All questions must not start with 'Adv Mpofu said this' and so on and the witness only has to say yes, because that is like legal argument. I am here if anybody wants to argue with me. Do not argue through the witness.
Chairperson: Thank you.
Dr Mulder: Luckily, no one will tell Members of Parliament how they should ask questions. Nobody will tell us that. It is our job to do what we need to do. Secondly, all of us are rather intelligent, and we could understand exactly the line of questioning that was being put to the witness in cross-examination, and the impression created in that line of questioning. Surely, it is my right to ask the witness to make something clear so that I understand that he understood exactly what was said. I did not misrepresent, Adv Mpofu. As a matter of fact, I could go further, but I am not going to waste the time of the Committee and respond to that allegation of dishonesty and everything in that regard. I did not think it necessary. The main thrust was that this witness did not remember what happened and I thought it was quite important to give him the opportunity to clarify that as well.
Chairperson: Thank you. Maybe before I proceed. The point I am hearing from Adv Mpofu is that you wish to be quoted verbatim and not be misrepresented. I think that is a strong point. I take note of that.
Adv Mpofu: Thank you. I do not want to belabour the point. I am just saying Hon Mulder can ask any question he wants but he must not preface it by saying Adv Mpofu said this. If he wants to do that, then he must be accurate.
Chairperson: Hon Tseke.
Ms G Tseke (ANC): Flowing from the question which was raised by Hon Gondwe on the Vrede Dairy project, the report spoke of two politicians who were removed from the original report. Were these the only politicians or public representatives implicated and removed from the initial report?
Mr Kekana: Yes, that is my recollection of events,
Ms Tseke: In your opinion, did the Public Protector try to protect the public, that is, the beneficiaries of Vrede Dairy project?
Mr Kekana: In my view, no, because we never spoke about them in the report.
Ms Tseke: In your view, did the Public Protector try to protect politicians at the expense of the public in this regard?
Mr Kekana: I do not want to express a view on that because I did not get any reasons as to why we needed to remove politicians from the report. I am afraid to have a view on that.
Ms Tseke: Okay, thank you. I know the question has been raised several times, but I will put it in another context. In your opinion, what was the reason that the PP was interested in including the submission of the Black Land First in the CIEX investigation, despite the fact that they were not involved in the matter?
Mr Kekana: I still cannot offer a view on that. I do not even know the reasons why the PP allowed BLF to provide submissions, so I would not be sure.
Ms Tseke: With reference to paragraph 24 of your affidavit, Mr Kekana, you indicated the idea of nationalisation of the Reserve Bank came from the Public Protector, but the wording in the report of the Amendment came from the SSA, is that correct?
Mr Kekana: That is correct. That is correct.
Chairperson: Thank you. I recognise Hon Zungula.
Mr Zungula: Mr Kekana, is it uncommon for recommendations to come from those interviewed during the investigations?
Mr Kekana: Yes, it would be uncommon.
Mr Zungula: So all of the recommendations would not take into account the people that were interviewed?
Mr Kekana: No, the recommendations would come from the PP as the Public Protector.
Mr Zungula: After taking into account the interviews, obviously?
Mr Kekana: Yes, the interviews and all the evidence that she had to consider.
Mr Zungula: Therefore, it is not common for the recommendations to also come from those interviews?
Mr Kekana: No, the recommendations do not come from the interviewees. No.
Mr Zungula: All right. Let me move on because just now you agreed that the recommendations come from the PP who takes into account the interviews. In your evidence, you said you complied with the instruction to make amendments to the Constitution, although you did not fully understand what the amendments sought to achieve. You said they were irrelevant. Is that correct?
Mr Kekana: That is correct, Chair.
Mr Zungula: So that instruction was not unlawful, from your perspective, just because you did not understand and it was irrelevant?
Mr Kekana: I would not comment on whether the instruction was lawful or not. But at that time, I had to obey the Public Protector’s instructions.
Mr Zungula: So you would wilfully obey any type of instruction?
Mr Kekana: I like to explain that, in the context, in the circumstances, I was new in the private office, and I was new in working with the Public Protector and if she gave me an instruction, I would not want to be seen to disobey that instruction because, obviously, I might be charged subsequently with not following instructions.
Mr Zungula: So you are saying even if the instruction was unlawful, you would carry out or implement that instruction?
Mr Kekana: I would in fear of recrimination.
Mr Zungula: Okay. All right, then let us go to the Vrede Dairy report. You state that the PP instructed that politicians must be removed. I know a couple of Members asked for a clear indication exactly where those politicians were implicated for them to be removed? You cannot remove something that is not there, so are you able to back up your claims with any form of evidence?
Mr Kekana: I cannot back up that with any form of evidence, but in my oral testimony, I indicated that I recall seeing those adverse findings in our previous drafts.
Mr Zungula: There is a provisional report by the then Public Protector, which is dated November 2014. Are you referring to that draft?
Mr Kekana: I am referring to unsigned drafts that were prepared by our Free State Provincial Office.
Mr Zungula: Okay, so you are saying there is no evidence to back up your claim.
Mr Kekana: I do not have that evidence at my disposal.
Mr Zungula: All right, then these instructions that came from Mr Ndou; did you ever confirm with the Public Protector whether she, indeed, gave such an instruction?
Mr Kekana: No, I did not confirm with the PP.
Mr Zungula: So you did not think you should do due diligence by confirming those instructions that would somewhat damage the investigation? You just wilfully complied with an instruction based on hearsay from Mr Ndou?
Mr Kekana: I followed the instruction that was given to me by my Senior Manager. At the time I did not have a good relationship with the Public Protector, so I did not see fit that I should go to the Public Protector and make sure that Mr Ndou was instructing us properly according to the Public Protector’s instructions.
Mr Zungula: But in your testimony, you are placing the responsibility for those instructions on the Public Protector and not on Mr Ndou. Do you think that is fair?
Mr Kekana: I have indicated all along that Mr Ndou was the one who informed us that the instructions come from the PP. I have also indicated that I never got any direct instructions from the PP with regards to the Gupta Leaks, and with regards to removal of politicians from the report.
Mr Zungula: Alright, okay. Let us go to the Gupta Leaks where you similarly state that Mr Ndou said there must be no investigation. However, there is an email from the Public Protector, dated 13 July 2017, sent to the CEO, where the CEO is instructed to follow up with Free State to prepare letters to the Premier, MECs and Administrators based on the information that came from the Gupta Leaks. What do you have to say about that now? That is an email, but in your testimony, you are saying that there was an instruction to ignore or not to do anything based on the Gupta Leaks?
Mr Kekana: I am not aware of that email, and I do not think in July 2017, I was involved in the matter. Really, I am not aware of that. I am only aware of what I was instructed to do by Mr Ndou.
Mr Zungula: Okay. In the meeting between Adv Madonsela and the SSA, there were no minutes kept or no notes recorded. Am I correct?
Mr Kekana: We could not find any form of record in regards to the minutes, the interview itself, the transcript - we could not find anything.
Mr Zungula: But you do know that a meeting did take place between Adv Madonsela and SSA?
Mr Kekana: Yes. I was informed by the previous investigator in the private office that a record or the minutes of that meeting did exist.
Mr Zungula: There were no minutes or notes or any form of recording? You could not find any of that?
Mr Kekana: We could not find any.
Mr Zungula: Then why would you characterize the non-taking of minutes between SSA and Adv Mkhwebane as odd?
Mr Kekana: It was odd because the normal procedure was to record all the meetings and keep the minutes.
Mr Zungula: However, this one between Adv Madonsela and the SSA was not recorded.
Mr Kekana: I did not say it was not recorded. I said we could not find any recording of it.
Mr Zungula: Remember, if something is recorded, definitely one way or the other, there would be some form of minutes, notes or anything that confirms that a recording did take place.
Mr Kekana: According to my personal knowledge, I was informed by the previous investigator that such a record exists, but when we looked for the record, we could not find it.
Mr Zungula: Okay. No, let us move on. You drafted the CIEX report. Am I correct?
Mr Kekana: That is correct.
Mr Zungula: Who was responsible for the quality assurance?
Mr Kekana: As I have indicated, it was a process. The investigator would quality assure the report, which meant in the circumstances, myself, and then the report would also be quality assured by the Quality Assurance unit. That would have been Mr Matlawe. The PP would do a final quality assurance before she signed the report.
Mr Zungula: By herself, or by instructing either yourself or any department that deals with quality assurance.
Chairperson: Is that your last question?
Mr Zungula: Okay Chairperson, I’ll put my last question. The disciplinary hearing found that you are dishonest. In your affidavit, you make claims that are not backed up with any form of evidence. You are saying your memory is impaired to a certain extent which is why you can't recall now some of the things that would have transpired long time ago and when Adv Mpofu was asking about, that is, the honesty issue. You were very evasive in answering. Why should the Committee take your evidence as the gospel truth, or as the truth, whereas, firstly, you were found to be dishonest and, secondly, the CCMA report states that your dismissal for gross misconduct was fair, meaning you are not a person of integrity. Why should the Committee take your testimony as the gospel truth?
Mr Kekana: I answered all the questions to the best of my knowledge and truthfully. As for the remarks by the chairperson of the disciplinary hearing and the award issued by the CCMA, I disagree with them and that is why there is a pending matter at the Labour Court in respect to that. Chairperson, I do not consider the issues emanating from the findings in the disciplinary hearing and the CCMA as being final. That is why the matter is at the Labour Court. I would like to emphasise that I answered all the questions to the best of my ability, and truthfully so.
Chairperson: Thank you, Hon Zungula. I request that you share with the Committee the email of 13 July 2017 that came from the PP.
Mr M Mahlaule (ANC): Let us go to paragraph 15 of your affidavit, Mr Kekana, where you talk about the provisional report, which was never quality assured, and you notice that it contained numerous errors and was missing vital information. You are saying that you informed Adv Mkhwebane of the errors and missing information, verbally, in your meetings in her office and Adv Mkhwebane indicated to you that the issues you had raised should be attended to. Would you say she was agreeing with you?
Mr Kekana: That is correct.
Mr Mahlaule: Okay, now, there is that set of emails that was projected here. In the first one it appears that Adv Mkhwebane was saying that the report should be looked at by a third party with different eyes. Is that correct?
Mr Kekana: I remember that email from May. That is the one in which Adv Mkhwebane indicated that there should be a third eye looking at it. Am I correct?
Mr Mahlaule: I am not sure. I thought I would get that from you, but that is fine.
Mr Kekana: I was shown those emails today, after some time, but I think the first email was the one in May where Adv Mkhwebane requested that I look at the draft.
Mr Mahlaule: Okay, so if you were to link the decision that these issues should be dealt with, by Adv Mkhwebane, and this email, would you say that there was an attempt to adhere to your request?
Mr Kekana: Sorry, I am a bit confused. I do not know what request I made. Is it the request that Adv Mkhwebane made that I should attend to the errors and the missing information
Mr Mahlaule: Yes.
Mr Kekana: I would not like to link that with the emails for May 2017 and June 2017 because at that time when I indicated those things, I had not yet started to work on the investigation or the report. I had just read the provisional report at the time.
Mr Mahlaule: Thank you. Working in a very important office like the Office of the Public Protector, when you go into a meeting and take notes, surely you pay serious attention to details, is that not so?
Mr Kekana: Well, usually, yes, you will try and do that.
Mr Mahlaule: Normally, what would go into your notes? Would it be only important issues or just anything that is being said, or anything and everything that is being said, or only important issues?
Mr Kekana: In making a written record, I would try to record everything that is been mentioned, but if maybe the discussion is too fast, then I would just indicate a brief discussion, or if they maybe mentioned something, I shall just put it as mentioned, but I think that will be the process.
Mr Mahlaule: Well, it is possible that, in your notes, the word “Heath” signified something important was said in the meeting.
Mr Kekana: As I indicated in my testimony, in my notes I did indicate that he was a reference point, but to my recollection, we did not discuss the investigation of Heath, or the investigation by Davis, if I am correct.
Mr Mahlaule: Okay. When you do an investigation, Mr Kekana, and quality assure it before it goes to the Quality Assurance unit, would you say you do it in such a way that it would meet international standards?
Mr Kekana: I am not so sure about international standards, but we will try to meet the standard operating procedures in the Office or the guidelines that have been provided in the Office.
Mr Mahlaule: To an extent that if it were not to find its way to the Quality Assurance unit, you would not expect material issues to appear. Yes. Is that an answer?
Mr Kekana: I think that the purpose of quality assurance would…
Chairperson: Come again. Mr Kekana.
Mr Kekana: I just lost connection for some time. I was indicating that in regards to quality assurance, the main purpose would be assurance to the guidelines or the standard operating procedures in terms of report writing in the Office. Obviously to eliminate errors and to ascertain the law. That would be the process in quality assurance just to make sure that the report is, for lack of a better word, solid.
Mr Mahlaule: Was that the process, meaning the report was quality assured by you, then it goes to the Quality Assurance unit and it goes to the Public Protector? But if it were to happen that it jumped the Quality Assurance unit, but you had quality assured it, then it was assigned to the Public Protector, would you say that report was not up to standard?
Mr Kekana: Yes, I would say that because it would not have gone through all the levels of quality assurance.
Mr Mahlaule: Okay. There was a point where you said you read the Vrede Dairy farm report, but at some point, you had no appetite to read it further. Is that correct?
Mr Kekana: Yes, I did indicate that I read the report partially but did not have the appetite to finish it.
Mr Mahlaule: For you to get to a point where you could conclude that the politicians that Adv Mkhwebane allegedly had instructed were not to be implicated, you would have to read the report to find that, that had happened; that that instruction had been carried out.
Mr Kekana: I knew, because remember, I was also involved in the removal of the information before it was even published. More or less, I knew what was in the report.
Mr Mahlaule: During the investigation of CIEX, did you have a meeting with the implicated parties, in particular, National Treasury and South African Reserve Bank? If not, why did you not meet them? If yes, were the submissions included in the report?
Mr Kekana: There was a meeting with the South African Reserve Bank before I took over the matter and we did get a response from South African Reserve Bank to the provisional report. In relation to National Treasury, I am not so sure whether there was a meeting prior to me handling the matter, but I know that I was not involved in a meeting with them. We did have a response from them in regards to the provisional report, and both responses were included in the final report.
Mr Mahlaule: Thank you. Lastly, in your affidavit on page 1, you say: “I am an adult male living in Pretoria, employed in the Office of the Public Protector of South Africa as a senior manager.” I was comparing your affidavit with that of other people who came, especially Mr van Loggerenberg. He says he was a former employee of SARS. Is there a reason why you still call yourself an employee at this moment? Is there a message that you are trying to convey to the Committee? I am asking this because there was a back and forth around your dismissal?
Chairperson: Are your reading from that protected disclosure which would have been made in 2019?
Mr Mahlaule: That is the one.
Mr Kekana: So, when I deposed the affidavit in December 2019, I was still an employee of the Public Protector South Africa.
Chairperson: Thank you. Adv Mpofu.
Adv Mpofu: I am sure it was a slip of the tongue, but please do not act as if you have prejudged some of the disputed issues. It is not a protected disclosure, or at least, it is a disputed issue as to whether it is a protected disclosure. We do not want to get the impression that that issue has been predetermined.
Chairperson: Thank you for that. The order is not sustained. There is nothing predetermined in these proceedings.
Adv Mpofu: No, Chairperson. Can I please intervene? I am not okay. If it is determined or not predetermined, you should not then categorize a disputed issue as ‘a’ or ‘b’ because that gives the impression that it is predetermined, especially when it comes from the Chair. Rather use a neutral term or do not enter the debate, because otherwise our inputs are not going to be considered or have been considered already, and therefore they will not enter the final debate. Thank you, Chair.
Mr A Seabi (ANC): Can I start with a request? Most of the time we are given the judgments of the High Court or the Constitutional Court. Can I request that wherever we are given a majority judgment of the court, and there is a minority judgment, that we be supplied with that as well? If it is a High Court judgment, can we be advised whether it was a full bench or not, if that is acceptable, Chairperson?
Chairperson: That is an order.
Mr Seabi: Mr Kekana, when were you employed by the PP?
Mr Kekana: I started with the PP in October 2011.
Mr Seabi: When were you dismissed by the PP?
Mr Kekana: I was dismissed in September 2020.
Mr Seabi: When were you transferred to and from the private office?
Mr Kekana: Chair, I was transferred from the private office… Sorry, Chairperson. Can I get clarity on what the honourable Member means – the time when I moved from the private office to Provincial Investigation or from the Quality Assurance unit to the private office? I just need clarity.
Mr Seabi: Maybe let me split it. When were you transferred to the private office?
Mr Kekana: January 2017.
Mr Seabi: When were you transferred?
Mr Kekana: I was transferred from Quality Assurance unit.
Mr Seabi: No, no, no. You worked in the private office. But at some stage you were removed from the private office. When was that?
Mr Kekana: That is correct. I was moved in November 2017.
Mr Seabi: In your statement, you said you were told by the HR that you are transferred to the private office. Did you ask questions why?
Mr Kekana: No, I did not ask questions why. I was approached and asked if I would be interested in transferring to the private office and I did not have any issues.
Mr Seabi: Again, when you were told by HR that you are being transferred or removed from the private office, did you ask questions why?
Mr Kekana: Yes, I did ask questions why
Mr Seabi: Somewhere you say those questions were directed to the PP. Is that correct?
Mr Kekana: Yes. In paragraph 37 of my affidavit, I do state that when I asked why, I was told that the PP indicated that I talked too much with the attorneys representing the Office.
Mr Seabi: Did you by any chance try to verify that information with the PP directly?
Mr Kekana: I did approach the Public Protector in her office, but I did not ask for reasons. I just indicated to her that I did not understand why I was leaving, but I accepted the decision.
Mr Seabi: Okay, thanks very much. In your statement when you were giving evidence, you say the report you submitted to your senior was seemingly later changed. You did not have a copy of that. My question is intended to check whether the Office did not have a system of having a copy file or having a system of somebody who receives information from you, signs for it and keeps a copy.
Mr Kekana: Okay, can I just be given clarity on which copy of the report we are referring to now?
Mr Seabi: Now, I think you said one of the reports that you prepared, I think it was the CIEX report, the final report was not the same as what you drafted. Am I correct? Or am I misrepresenting you?
Mr Kekana: I am not so sure. I did indicate the additions or the change of focus in the final CIEX report had to do with the amendment of the Constitution and the nationalisation. That is what I recall. Unless I am not answering the question correctly.
Mr Seabi: Okay, maybe I did not hear you well. Based on your testimony, would you conclude that the PP is not fit for office?
Mr Kekana: Okay, I really do not want to express a view on that. I did report instances where I observed what I deemed to be improper conduct from the Public Protector, Chairperson. I did submit that to the Speaker and the Presidency at the time. I believe that this Committee is tasked with doing that and I would not like to venture into that space.
Mr Seabi: Let me put it this way, in your opinion, does the behaviour of the PP constitute improper or mis-conduct?
Mr Kekana: In my opinion, and in relation to the affidavit, which I deposed, I considered the actions by the Public Protector to be improper in my view.
Mr Seabi: You said you were not ready to testify before the Committee. Can you just take us through that again?
Mr Kekana: I did indicate that I was or am reluctant to testify to the Committee and I advanced three reasons. The first one was that I felt that, since this is a public discourse, that my privacy would be affected. Secondly, I did indicate that my recollection of certain events may be impaired due to the number of years since those incidents happened. I think thirdly, I indicated that some of the issues were pending at the Labour Court and I do not want to prejudice that process.
Chairperson: Thank you. Adv Mpofu
Adv Mpofu: I just want to put something on the record, not to debate it unnecessarily. I want to place it as a formal complaint from us. I do not know if you understood the point I was trying to make before because you did not make a ruling; you just ignored me. The point I was making was that when there is a major point that is disputed, such as whether that statement is a protected disclosure or not, which we have spent a considerable amount of time discussing, just to waste our time, if then the Chairperson determines that. The Chair cannot be predetermining an issue like that. You will remember now…
Chairperson: Hold on, Adv Mpofu.
Adv Mpofu: Just listen. Can I finish, please?
Chairperson: No, I thought you had raised your hand in relation to an issue that would have been raised by the last speaker. What you are now doing, is that you are repeating the same point that you made before I handed over to the next speaker.
Adv Mpofu: No, I am making a complaint. It is a different matter. I am not responding to the last speaker. I am lodging a formal complaint. Can I be allowed to do?
Chairperson: I will allow. You have to do that once I have concluded my speakers.
Adv Mpofu: No, Chairperson. Alright, fine.
Chairperson: Thank you. I now recognize Hon Nodada.
Mr Nodada: I just want to say that the majority of my questions are actually directed to the Public Protector in the main. The questions that I wanted to ask have largely been covered by previous speakers, in particular, Hon Mileham. But there are just two issues that I would like to put to Mr Kekana. In the evidence that you deposed to this Committee that you want us to consider, would you say that your evidence relates to grounds of misconduct and incompetence in relation to the Public Protector on the following issues that you want us to consider: 1. In relation to the South African Reserve Bank report, which ultimately has been ruled on by the courts. Is that right?
Mr Kekana: It is correct that I reported improper behaviour in relation to the CIEX investigation.
Mr Nodada: The second one would relate to the Vrede Dairy report, which has also been ruled upon by the courts up to the Constitutional Court level. Is that correct?
Mr Kekana: That is correct.
Mr Nodada: My next question is on what you have alleged as not being protected as an employee or being harassed. Is that correct?
Mr Kekana: It is correct that I also reported harassment and intimidation by the Office of the Public Protector. That is correct.
Mr Nodada: Would it be correct to deduce that, based on the evidence that you have submitted, that when you indicate that this is what you want us to consider, i.e. incompetence and misconduct, that you rely beyond the sequence of events presented to us here, the court rulings that have been made regarding the CIEX report, as well as the Vrede Dairy report, which in some instances, corroborate what you have presented to us today as a witness?
Mr Kekana: Chair, I would be more comfortable saying that I relied on the personal knowledge that I have, which is alluded to in the affidavit with the annexures. I never mentioned any court judgments. I just mentioned that in the court judgments that the reports were set aside, but I did not place much reliance on those judgments. I only relied on the information that was at my personal disposal.
Mr Nodada: There is a statement made by Adv Mpofu who represents the Public Protector that these court judgments are “wrong” - that was the word used by Adv Mpofu. Do you believe that based on your references and your evidence, this Committee should consider those judgments on the CIEX report and the Vrede Dairy report?
Mr Kekana: That is difficult for me to pronounce on. I think it is within the Committee's purview, but I think the Committee should consider what is relevant to them and take their own decision around what they consider as relevant evidence.
Chairperson: Adv Mpofu, I see your hand.
Adv Mpofu: Thank you. No, it is okay. I waive my right to speak.
Mr Nodada: According to your affidavit in paragraph 33, you indicate that Adv Mkhwebane indicated to you during the review proceedings, that you should omit some information from the Rule 53 file. Did she give you reasons as to why you should do that, particularly the information in relation to the CIEX investigation report?
Mr Kekana: I do recall that she advanced no reasons as to why we should omit those draft reports.
Mr Nodada: Okay, you further say there was a telephone conversation in which you disagreed with you sharing that information. Do you recall the conversation?
Mr Kekana: What I recall is that I did inform the attorney at the time that the PP wished to exclude our drafts from the record. I informed the counsel and the attorneys who resisted that. I reported back to the Public Protector that counsel and attorneys were resisting that. She also had her view that the files should not be transmitted in the record, but I do not remember her advancing any reasons to me as to why they should be omitted.
Mr Nodada: Alright, Chairperson, I am going to request if that information can be made available to us as to what the reasons would be that some information was omitted from the Rule 53 record. Maybe after I have done with my questions, Adv Bawa may give some direction as to what can be arranged.
Chairperson: You are actually at the end of your limit. I now recognize Ms Dlakude.
Ms D Dlakude (ANC): Mr Kekana, in your affidavit, paragraph 33, you said that the draft prepared by her predecessor should be included but that the draft prepared during her tenure should not be part of the Rule 53 record. Then you reported it to the attorneys and Adv Bham said that the reports could not be omitted from the Rule 53 record. After that, you had a telephone conversation with Adv Mkhwebane who was opposed to this, even though the legal team was in agreement that those drafts had to be included. Why would she, in your opinion, not want her own drafts drafted during her tenure to be included, but allow the drafts drafted during the tenure of her predecessor, Advocate Madonsela, to be included in the Rule 53 record? Question two relates to paragraph 37 of your affidavit. When you were removed from the Office of the Public Protector it was because you were saying too much to the lawyers representing the Public Protector. Can you please share with this Committee the information that you were sharing with the attorneys that led to the souring of your working relationship in the Office of the Public Protector?
Ms Dlakude: We move on to paragraph 40 in your affidavit where you mentioned that the Public Protector Adv Mkhwebane said the evidence in the Gupta Leaks should not be included in the investigation. In your own understanding, do you think that the evidence in the Gupta Leaks was going to assist in the investigation of the Vrede Dairy project? Yesterday, you said that in one of the meetings you were told by Adv Mkhwebane not to record the proceedings of that meeting and you were prevented from taking notes. When you were in that meeting of the SSA, was the meeting discussing classified information or what was it that the meeting was discussing? We would like to hear from yourself what it is that was discussed. In paragraph 19 of your affidavit, you said that it was odd for the Public Protector to have a one-on-one meeting with one of the attendees in an interview. Is this stipulated in the Public Protector Act that the Public Protector is not allowed to meet with anyone? Or is it in the Constitution? Or is that your opinion? If you can expand on that one. Then you also mentioned that questions that you prepared were disregarded by the PP in that meeting. Is it compulsory for the Public Protector to focus only on the questions that are prepared for her whenever you have a meeting or is she allowed to come up with her own questions? We want to have a better understanding in this regard.
Ms Dlakude: In paragraph 32 of your affidavit, you said you attended a meeting in which you informed the attorneys of the fact that the recommendation in the final CIEX investigation report had actually been prepared by SSA. What was their reaction to this? Based on your investigation experience, is it allowed for the Office of the PP to expect advice on a matter, like what you should do with the CIEX? I’m asking if it is necessary to get expert advice with regard to any investigation like you did with Mr Moodley, who is referred to as an economist. Is it allowed? According to your knowledge and understanding, who is better placed to deal with the amendment of the Constitution of the Republic of South Africa? If you can assist us in that regard, we can all have a better understanding? Nationalisation was not part of the scope of the investigation. Would you say extending the mandate of investigation in this instance, would constitute improper behaviour? Alternatively, is it common practice for the Public Protector to change the mandate or the scope of any investigation? Thank you.
Mr Kekana: I am just still recording the last bit of it. I hope I have captured the questions correctly. In regards to paragraph 33, I was not given any reasons why we should not include the draft reports that we had drafted. No reasons were given by the Public Protector; she just did not want them to be included in the record. In regards to paragraph 37, the information that I shared with the attorneys was in relation to the amendment of the Constitution. I recall advising them of that and also indicated to them that we received a note from the SSA with the changes. In regards to paragraph 40, we were instructed to follow up on the Gupta Leaks. Depending on what we found, we intended to determine whether that information would assist us or not. But I think if I remember correctly, from media articles, there was mention of the Vrede Dairy project in the Gupta Leaks, so it was a lead that we wanted to follow. If there was any information that was relevant, we were definitely going to use that information. In regards to being told not to take notes or make a record of the SSA meeting, from my knowledge, the information that was discussed in that meeting was not classified. As I indicated before, the discussions mostly centred on the Reserve Bank, pre-democratic era.
Mr Kekana: Regarding paragraph 19, according to my knowledge there was no written rule that one could not have a one-on-one meeting with an implicated party. It is not stipulated in the Public Protector Act, nor is it stipulated in the Constitution, but the practice in the Office was for us not to have one-on-one meetings with affected parties in regards to an investigation meeting. In regards to the prepared questions, it was not compulsory for the PP to focus only on those questions. She would use the questions to assist her and she could also come up with her own questions. Regarding paragraph 32, after I told Sefanyetso Attorneys that the SSA prepared the Amendment, I remember the reaction was that of shock, but I do not remember the specific words that they responded with or the response that I got from Sefanyetso, but I remember that there was some shock from the attorneys. In regards to my investigation experience regarding experts, we are allowed to seek an expert, if required. That is allowed. In regards to the constitutional amendment, I think Parliament or Cabinet is better placed to deal with any amendment of the Constitution. In regards to nationalisation, I believe that it was not in our scope, to follow that line and it was wrong of us to follow that course in regards to nationalisation. Yes, I do believe that the scope of the investigation changed because of that. I am not so sure that I have captured everything.
Ms Dlakude: A follow-up. In paragraph 40 of his affidavit, he said that much of the evidence needed for the investigation was contained in the leaked emails about members of the Gupta family, known in the media as #GuptaLeaks. My question was, if they had not been prevented from taking evidence from #GuptaLeaks, did they believe that this was this going to assist with the investigation?
Mr Kekana: We did believe that it was going to assist with the investigation.
Chairperson: Thank you. Hon Maneli.
Mr B Maneli (ANC): I would want to just start by ascertaining, firstly, with regard to the two reports, and I would want also to conclude with those reports or investigations. Were these investigations done before you were involved in the investigations, Mr Kekana? Secondly, were these done before the current Public Protector we are now referring to, meaning that they were done by her predecessor? I just want again to be assured that is the case.
Mr Kekana: Yes, both the CIEX investigation and the Vrede Dairy investigations happened before Adv Mkhwebane was appointed as the Public Protector. We inherited both investigations.
Mr Maneli: So on that score, is it not expected that there would be hand-over reports that would have laid the basis for you to continue with the investigation?
Mr Kekana: Yes, I agree. There were hand-over investigations that we needed to finalise. That is correct.
Mr Maneli: I shall start with the Vrede reports. You have made reference to, and I think most Members have spoken about, the instructions to remove certain information which included politicians. Do these so-called adverse findings refer to, or emanate from, the hand-over reports? Or do they emanate from an investigation that you yourself have undertaken?
Mr Kekana: Okay, they were emanating from draft reports that were before our time.
Mr Maneli: So would you say that, in essence, the first task that was given by Mr Ndou was really to alter what was in the report handed over by Ms Cilliers?
Mr Kekana: The first task that we were given was that we should follow up on the Gupta Leaks. Later on, we were instructed not to follow up on them anymore, and then later on, we received an instruction from Mr Ndou - this would be just before we reviewed, or removed, most of the things in the report - just before that, we received an instruction from Mr Ndou to remove any adverse findings in the report.
Mr Maneli: Would you then say that you yourself, personally, given your experience as an investigator, you would have agreed with the adverse findings and that is the reason you are raising with the Committee the instruction to remove them?
Mr Kekana: I had no reason to believe that the previous investigators who had made the findings had made inaccurate findings. I intended just to proceed with the investigation and if there was evidence that indicated that the adverse findings were incorrect, then we would amend that. From our point of view, we moved on from what we received.
Mr Maneli: Just to complete that point. Was this based on the legality of how that information was obtained? Or are you trying to demonstrate that this was a deliberate move to withhold information to weaken the strength of the investigation or the actual report in the end?
Mr Kekana: Okay, I am not really sure. As I indicated before, we were not given any reasons as to why we should remove these adverse findings.
Mr Maneli: Maybe put differently, as an investigator who needed to use this information, would you yourself say you believe that this information was a test of legality on how you obtained it to make it usable for you to make decisions?
Mr Kekana: Can I can I get that again?
Mr Maneli: Did you yourself, aside from the instruction given on this, believe that the information should be used? I am looking at it from a point of legality on how this information would have been obtained.
Mr Kekana: Our position was, especially on the Gupta Leaks, to follow up on that lead, get the information, assess the information, and if we found that information credible, we would have used it. If the information had no value we would not have used it.
Mr Maneli: Just again on Mr Ndou. You took the instructions and you indicated that you did not question those. Was it common practice that Mr Ndou would ask that certain information be removed from the reports or it is just an experience in that particular case?
Mr Kekana: In my experience, usually we would be given reasons as to why we had to remove something from a report, but in this instance, no reasons were advanced. We were just informed by Mr Ndou that we had to remove the information
Mr Maneli: I just want to establish if that was common practice because I am also trying to establish why Mr Kekana did not discharge the duty of a public official to say “no”, if something is unlawful.
Mr Kekana: I could not say “no”, especially if Mr Ndou indicated that the instruction came from the Public Protector. I just acted according to what we were instructed to do. Usually when we removed things from a report or from a section 79 notice, it would be informed by facts or evidence, but in this instance, no reasons or facts were provided to us.
Mr Maneli: Do you then believe that those omissions or removals would have a material impact in the investigation or the final report?
Mr Kekana: I agree with that statement.
Mr Maneli: Then having not raised this with the PP to validate whether Mr Ndou’s instructions were indeed lawful, was there any other avenue that you would have used (you described your relationship with the Public Protector as not good at the time) to report the unlawful instructions that may have compromised the report? What about the standard operating procedures in the Office?
Mr Kekana: I do not think there was any kind of procedure where internal staff could report the behaviour of the Public Protector. I did not report it to anyone at that stage. I made a report in the protected disclosure affidavit.
Mr Maneli: I refer to the meeting in the boardroom. Here it is not Mr Ndou who says this. Here, you are saying it is a direct instruction to remove information from the report. At this point, is it a direct instruction, the matter of politicians involved?
Mr Kekana: I do not remember the issue of politicians arising in that meeting. I think we focused on other things since we had already received that instruction regarding politicians.
Mr Maneli: I want to get back to the report on the Bank. The starting point will be on the BLF being included in the investigation when it was not supposed to be included. From the other side, would you have regarded this as a way of saying that is what is expected from the Public Protector, who was protecting the public and listening to what the public would place before her? Was it merely that exercise and that is why it would not even have made it into your report?
Mr Kekana: I can agree to that proposition that maybe the Public Protector just wanted to hear from an organization what they could possibly contribute. I would agree that might be the case.
Mr Maneli: Maybe. Regarding the SSA meeting, you continuously say there was to be no recording. My question would be that this was an opportunity, as you stated, or hear the other side of the story, so what did you rely on then for the finalisation of the report in the absence of notes?
Mr Kekana: Well, there was nothing basically. As I indicated in my earlier testimony, we did expect a written submission from the SSA, and we really never got it. What I think was indicated in the report were statements made in the provisional report, if I am not mistaken.
Mr Maneli: Yes, for my last point, I will conclude with this point, just as I started with it. In both reports, would it be correct to draw a conclusion, taking into account that the Reserve Bank investigation looked at something and at the end, presented an amendment about the Constitution and all that. Then in the Vrede Dairy report, you also had removals that also changed the report. Will it be correct, then to draw the conclusion on both reports, which were inherited, that those final reports submitted would have been altered from what could have been the original intention of the two investigations?
Mr Kekana: In general, I would agree with that assessment.
Statement by Public Protector legal team
Chairperson: Adv Mpofu, I want to attend to the query that you registered and to indicate that, as you would have witnessed from day one of these hearings, that we were very clear about this Committee starting with no pre-determination of anything. Secondly, I am very much alive to the fact that you would have spent considerable amount of time, especially yesterday, not only canvassing, but also at the end, you did register your own dispute on the issue of the Protected Disclosure Act, so, that has not gone unnoticed and is registered as a dispute. Further to make the point that this Committee is still going to have deliberations on everything else that would have been placed in front of it, and that there is no Member, including its Chairperson, that will pre-empt those deliberations. If your point was to register that, and redirect the Chair to that dispute, the Chairperson is well-directed to that dispute. I wanted to make that point before I allow you to make your statement.
Adv Mpofu: No, thank you, I am happy with that. Remember, this is a public process where it is not just all of us in the theoretical room. So it is really incorrect. There is no other way to describe it. That is to say that with this witness, for example, I let him get away with calling this thing a protected disclosure because he says he does not even know whether the Speaker is a member of Cabinet or not. That is fine, we can add all that at the end, as you say. But you know that the Speaker is not a member of the Cabinet. Maybe it was a slip of the tongue but I was not suggesting anything. To a neutral person, when there has been a whole dispute, which takes 10 to 15 minutes about whether this is a protected disclosure or not, or whether it is black or it is white, and then the Chairperson just says, “Oh, this black thing”, that means the other side is being neglected. It is just a simple point that I am making, and I do not want to make a meal of it. I just want to ask all of us to be sensitive to those kinds of things. Because, you might say that you have open minds, but as we go on, we start to get the impression that there are fixed positions and Members have even attempted to undo or to re-examine the witness to undo questions or to repair questions where he was weak. That is all fine, because we are not in a court of law, but let us at least take it easy on the predetermination and show a semblance of fairness. It is all from a fairness point of view. I was not accusing you of having done it deliberately.
Chairperson: Understood. Thank you very much. Is there any other point you wanted to make before I wrap up?
Adv Mpofu: This is the right point at which I should make that point. Again, it is not only for your consumption, but also for the public out there to follow all the steps that we are taking. You would have received a detailed letter from us yesterday. That is the letter I had promised you and said we were still making a few editing changes. It was sent and acknowledged by your office yesterday. It raises quite a few fundamental issues and the purpose of the letter, I am not going to discuss it now, is for you to table it at your meeting in the next couple of days. I think there are six broad issues that are raised: Two or three of them might have been issues where we are bolstering some of the issues we may have raised at the beginning, and another two or three might be completely new issues, but you will deal with in your own meeting. The only relevance or importance of raising it now is because one of the issues that was raised sharply in that letter is the fairness and reasonableness of this procedure of interposing questions after every witness to Adv Mkhwebane before she gives evidence. I do understand that ruling still stands as we speak, but I just want to insist once again, that such a procedure is completely unheard of, and completely unfair. Because if it goes like that, by the time we have to give evidence, we might have been asked questions about everything else, so there might even be no point in giving evidence. Secondly, we are still preparing. There are still witnesses whom we do not want to precognise, as we call it, certain information. I shall give you an example. Mr Pillay, who is still going to testify – his evidence is related to that of Mr van Loggerenberg. If we are going to be dealing with those issues, then Mr Pillay will be precognised of everything that we have and be able to tailor his evidence accordingly, and that is inherently unfair. I am simply saying that this is the correct time to raise it but what I am raising, Chair, because I suspect that this is where you might want to allow people to do exactly that which we wish to record is inherently unfair.
Chairperson: Thank you. You have registered quite a number of points. Fortunately, you derive them from the letter that will be for the attention of the Committee tomorrow. We will certainly attend to those issues as the Committee. Thank you for that. Adv Bawa.
Adv Bawa: I was asked a question earlier, but I am not sure what the question was precisely, my apologies. One member asked at the end that the evidence leader should address the question relating to the transcript of the record that was…
Mr Nodada: Yes. I referred to paragraph 33 of Mr Kekana’s affidavit indicating a telephone conversation that took place between him and Adv Mkhwebane regarding the Rule 53 record. I was asking whether we could get a recording of that or a transcript of that particular conversation to ascertain the reasons behind the non-disclosure of that particular report, there was a deal in the review proceedings.
Chairperson: Did you get that Adv Bawa?
Adv Bawa: Yes, but I think we must ask the witness if he has a recording of that telephone conversation, because we certainly do not have it.
Chairperson: Okay, thank you. Mr Kekana. Did you hear that? Do you have that recording?
Mr Kekana: No, I do not have that recording, Chair.
Chairperson: Okay. Thank you. Hon Mulder,
Mr Mulder: If I may just get clarity from Adv Mpofu to understand what he is saying with regard to the evidence by the Public Protector. Obviously, the Public Protector plays a central role in these proceedings and he argued that in terms of fairness, it would not be fair to allow questions to be asked throughout the process. Now we have got our own meeting to discuss the process and I want to understand. I think the process on the one hand, is where written questions can be addressed to the Public Protector and that happened earlier, last week, if I remember correctly. The other process would be where the Public Protector gives evidence in person, like the other witnesses have done so far. That is a different process, to understand that proposal correctly, is Adv Mpofu indicating to the Committee that the Public Protector is going to give evidence in person directly and because of that, we should not proceed now with questions that demand written replies. I am just trying to understand?
Adv Mpofu: Thank you. I think that is quite an important question. Yes, indeed, Hon Mulder, what I am saying is that the system that has been adopted of asking the Public Protector to give answers in-between every witness is inherently unfair, for the reasons that I have articulated, both just now and also in the letter, which will be tabled before you. I do not want to get into that in great detail. You will recall that we raised this on day one and my proposal, which was obviously rejected by the Committee, or the Chair, or both, was that the Public Protector should answer the questions either when she gives evidence, or five days after she indicates that she will not give evidence, but obviously the questions should be posed. We said on Monday, that is exactly to avoid the kind of situation we find ourselves in now, where we will have to respond because we will run out of the five days or seven days at points that are randomly selected, just by coincidence, and therefore we might have to give those answers before further critical witnesses testify on a particular point, and it just distorts the entire process. I have never heard of such a procedure in my entire life, in any proceedings of whatever shape or form and the only justification that the Committee has given for it, is the fact that the Public Protector accounts to Parliament. This is true, but this process is not that type of accounting mechanism. This Committee has a specific mandate to ascertain the veracity of the charges. The Committee can use its normal accounting functions at other times but insofar as this particular Committee has a specific function, that function must be done in a fair manner of inquiry, because it is an inquiry. It might happen that the next day the Public Protector is called into whatever Committee she normally accounts to and that is fine. But this process here must guard its fairness, because otherwise it will be a mockery if she has to come, let us say a month later, but by then three quarters of the evidence will have been given in dribs and drabs after each witness. Quite apart from wasting time in a process like this, it is just inherently unfair. Yes. Hon Mulder, you have understood my point properly.
Chairperson: Thank you. I do not want us to get into any discussion on that. I think the point raised was to clarify and to understand what was being placed by Adv Mpofu. I think we will leave it there. We will have our own consideration when we return to our own house matters and reflect on the process in our own meeting.
Adv Mpofu: It is just a quick one on a light note. I noticed that Hon Mulder did not take the opportunity to ask questions in that fashion (for the Public Protector) last week, so I hope everyone can follow his example. Thank you.
Chairperson: Members have their own ways. Each has a particular way of dealing with this. We are not going to follow Hon Mulder. Please do not push us regarding that process, Adv Mpofu. Mr Kekana.
Mr Kekana: Yes, Sir. I am still here, Chairperson.
Chairperson: We have concluded our interaction with you as a Committee after full two days. We want to thank you for your participation. You have displayed a high level of discipline and hopefully, this is going to assist the Committee in its own work that it has been set up to do. We really do appreciate the role you have played. With that, I want to thank you and at this point excuse you. It has been a full two days. Thank you very much,
Mr Kekana: Much obliged.
Chairperson: Anything you want to say?
Mr Kekana: No. Thank you. Everybody, have a pleasant evening.
Chairperson: So you do not want us to just do another 20 minutes.
Mr Kekana: That is not a good joke.
Adv Mpofu: I am available, Chairperson.
Chairperson: If there are no other issues from the evidence leaders or Adv Mpofu, I would want to conclude this meeting with a brief remark.
Adv Bawa: Can we confirm when we will be resuming the hearings?
Chairperson: Mr Mileham.
Mr Mileham: I know that we are going to discuss it tomorrow, what Adv Mpofu has raised, but in the meantime, the situation is that the directive stands and, as such, we do as Members have a right in terms of that directive to question Adv Mkhwebane and Adv Mpofu on evidence that we have heard over the last two days. Are we going to get that opportunity now or when will we get that opportunity?
Chairperson: There were only two people who indicated that they had questions. I am going to ask you to hold your questions? You are okay? That is fine. Adv Bawa.
Adv Bawa: If this could be raised to the Committee tomorrow. We are set to resume on 27 July. I think Adv Mkhwebane and Adv Mpofu asked for three days to prepare and then two days for the Western Cape High Court hearings. We are set to resume on the 27th. I have essentially two questions. Are we tacking on the five days that will be lost at the end? That would assist us in sorting out diaries. The second thing is we have a programme but the reality of the progress that we have made up to now is an indication that the evidence is not going to be finished as predetermined in the programme. The Committee needs to have a conversation about that when it meets tomorrow. As things stand at the moment, we will be back on the 27th.
Chairperson: That will be finalised after tomorrow because the amendment of the programme is in front of your Committee tomorrow. Adv Mpofu.
Adv Mpofu: I agree with what my learned friend has said and I am sure the Committee will relook at the programme as you indicated. I just wanted to flag from the letter that we have raised an issue there about the possibility of the court case next week, running over into a third day. We have applied to the court as well in respect of that, and that issue will probably be resolved around about Thursday, as to whether it is going to be two days or three days. We will find a way to keep in touch with you on that. But I just I think in fairness, I want to raise it as, if the court hearing spills over, then it might mean that we resume on 28 July. It is in the letter, so I am just flagging it because I know people's diaries are quite difficult to manage and we are dealing with many people. We should raise these things as early as possible.
Chairperson: To be considered, hopefully we will get clarity from our legal services team tomorrow morning. Secretary, just announce tomorrow's meeting. Is it virtual or hybrid?
Committee Secretary: The meeting is virtual and starting at 10:00 and ending at 13:00 tomorrow. Please, Members, do not come to the venue there will be no one here.
Chairperson: With that, colleagues, we will pause. I shall hold back on the points I was going to make. I shall make them first thing in our Committee meeting tomorrow morning. The meeting is adjourned.
Dyantyi, Mr QR
Denner, Ms H
Dlakude, Ms DE
Gondwe, Dr M
Hendricks, Mr MGE
Hermans, Ms J
Herron, Mr BN
Holomisa, Dr BH
Joemat-Pettersson, Ms TM
King, Ms C
Legwase, Ms TI
Lotriet, Prof A
Luzipo, Mr S
Mahlaule, Mr MG
Malema, Mr J
Mananiso, Ms JS
Maneli, Mr BM
Mgweba, Ms T
Mileham, Mr K
Moela, Mr DL
Mulder, Dr CP
Nodada, Mr BB
Nqola, Mr X
Peters, Ms ED
Seabi, Mr M A
Shaik Emam, Mr AM
Siwela, Ms VS
Skosana, Mr GJ
Sukers, Ms ME
Tlhape, Ms ME
Tseke, Ms GK
Tshabalala, Ms J
Van Minnen, Ms BM
Zungula, Mr V
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