PP Inquiry day 8: Hearings reflections; Matters raised by Adv Mpofu, Revised Programme

Committee on Section 194 Enquiry

20 July 2022
Chairperson: Mr R Dyantyi (ANC)
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Meeting Summary


Motion initiating the Enquiry together with supporting evidence;

Public Protector’s response to the Motion;

Report from the Independent Panel furnished to the NA;

Removal Rules of the NA

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

Speaker of National Assembly v Public Protector and Others; Democratic Alliance v Public Protector and Others (CCT 257/21; CCT 259/21; CCT 257/21) [2022] ZACC 1 (4 February 2022)

Pravin Gordhan vs Public Protector & Others

In this hybrid meeting, the Committee reflected on the hearings conducted so far, heard from the Parliamentary Legal Advisor on matters raised via correspondence by the counsel defending Adv Mkhwebane, and discussed the programme.

Members focused on the application of the Committee Directives with some expressing concern about the repetition of questions, the questioning of witnesses, legal representation for witnesses and the ability of Members to ask the suspended Public protector questions during the hearings.

Others indicated that the hearings should be balanced and the Committee should not only hear from witnesses who had negative views about the Public protector but also from those who had a positive perspective.

Responding to input from the Public Protector’s legal advisor, the Chairperson emphasised that Adv Mkhwebane was not at risk of double jeopardy, as these were not criminal, civil or judicial proceedings. These were constitutional proceedings that the Constitution prescribed only in the National Assembly.

The Parliamentary Legal Advisor provided a summary of the key issues raised by the Advocate representing the suspended Public Protector. A number of the issues raised had been addressed in other parallel processes.

Clarity was sought about the ‘narrowing’ of the enquiry - in relation to the four ‘charges’ or ‘motions’ on which the Committee was acting. It was asked why witnesses would be called, in relation to evidence that had been reviewed during the predetermination phase and was deemed not to meet the standard of prima facie evidence.

The Committee agreed to enforce its directives more strongly when it resumes its work the following week. 

Meeting report

Opening Remarks
The Chairperson made brief opening remarks. The meeting would deal with two matters, to reflect on the meetings held so far and to discuss the programme. Legal Services would provide input on the correspondence received from Adv Busisiwe Mkhwebane, which was raised in the meeting the day before. This was the eighth meeting of the Committee. It was noted that there were no apologies.

Matters for Consideration by the Committee
The day before he had promised Adv Dali Mpofu that he would respond to the point made about the issue of double jeopardy. Adv Dali Mpofu had consistently raised this in relation to Adv Busisiwe Mkhwebane. He drew the Committee’s attention to Section 35 of the Constitution of South Africa, which dealt with arrested, detained and accused persons. Section 35(3)(m) stated that ‘Every accused person has a right to a fair trial, which includes the right not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted.’ These were the rights of accused persons. The key point was that Adv Mkhwebane was not at risk of double jeopardy, as these were not criminal, civil or judicial proceedings. These were constitutional proceedings that the Constitution prescribed only in the National Assembly; it had been prescribed to the National Assembly to discharge. Parliament could not make a decision on criminal liability nor send Adv Mkhwebane to jail for a criminal offence or require her to pay damages for criminal liability. There was no risk that Parliament would duplicate the processes that a criminal court may be involved in, in exposing the Public Protector to two criminal sanctions for the same criminal matter. Adv Mkhwebane was not an accused person in front of this Committee.

He stated that the programme might need to be amended and would require some sacrifice from Members. He remained confident that the Committee was on track with the processes.

Dr C Mulder (FF Plus) agreed with the Chairperson’s interpretation of the whole issue of double jeopardy and the Constitutional provision. In the explanation given by the Chairperson, he had said something to the effect that the Public Protector ‘could not be charged again for a crime…’ He knew that the Chairperson meant an ‘alleged’ crime – he did not want the Committee or the Chairperson to be misquoted in this regard.

Mr G Hendricks (Al Jama-ah) thanked the Chairperson for his leadership over the past few meetings. Parliament came first and not individual parties. There were signs of such ‘noble conduct.’ He suggested that the Committee may have expected too much from the expert witness. It was expected that the expert witness would have focused on alternative dispute resolution mechanisms. He suggested that ‘doing the extraordinary’ got the Public Protector the job. He sought to clarify this by comparing this to what happened at the Commission for Conciliation, Mediation and Arbitration (CCMA) – in terms of alternative dispute resolution. In this particular case, the opportunity to do things out of the norm was counter-balanced by direct access to the High Court, which was not necessarily the case in the CCMA. An enquiry of this nature needed to be balanced by African common law, jurisprudence etc. He suggested the enquiry set an example and be a ‘people’s enquiry.’ This was his concern. He suggested bringing in an expert witness that could tell the Committee about alternative dispute resolution. The point came out clearly the day before that the Public Protector was not a ‘one woman show’ There were so many people involved. This Committee should not destroy the Office of the Public Protector. It needed to allow for that ‘flexibility’ to continue. The Office of the Public Protector should not become like the High Court or Constitutional Court. Adv Nazreen Bawa made the important point that the Public Protector’s Office was there to serve the poorest of the poor. He was concerned that Parliament had over-reached. This was not a Senate enquiry, taking place in the United States of America (USA), it should be a people’s enquiry. The expert panel had no people on it – only experts – people needed to be on the panel.

Mr K Mileham (DA) spoke about the way the hearing was conducted. His first concern was about directive 5.9 – specifically the way that had been implemented. The directive read ‘A Member of the Committee either directly or through the evidence leaders may ask Adv Mkhwebane to directly respond to certain questions posed, oral or in writing, including factual disputes that may arise if she was not at that time giving evidence. Adv Mkhwebane must respond to such questions unless she requested a reasonable time in which to submit response.’ He suggested that this apply only where the information may not be in the Public Protector’s immediate knowledge, where she may need to look something up or find information that she should be permitted to come back with a written response. He did not think it served the interests of the enquiry nor the interests of justice and procedure to allow her to take seven days to respond to a list of questions.

He raised concerns about how some of the questioning of witnesses took place. He noted directive 6.2 and the right of witnesses to ‘human dignity.’ He highlighted that no one should be subjected to questions or statements that bullied, intimidated, harassed, embarrassed or deliberately insulted the witness, according to the directive. During the cross examination of Mr Johann van Loggerenberg, his medical status was made public for all to see. During the cross examination of Mr Kekana, there were horrible insults hurled at the witness. He was called a liar and dishonest. It was absolutely untenable.

Directive 6.3 also noted that when questioning a witness the character of the witness should not be challenged. With regard to repetition, during the cross-examination Adv Mpofu put questions to the witnesses that had already been asked multiple times in different formats. Adv Mpofu was looking for a specific answer – he did not believe that was fair nor served the interests of the enquiry. Once a question had been asked the Committee needed to move on. He was specifically mentioning directive 6.4 on this. A firmer grasp needed to be taken on this during the remaining hearings. The repetition of a line of questioning only served to delay the proceedings. He suggested the relevancy of some of the questioning needed to be looked at. There were certain ‘rabbit holes’ that did not address the issues that were before the Committee. The central question was if the Public Protector was fit to hold office and if there had been misconduct in her actions.

Ms B van Minnen (DA) stated that this was a Parliamentary Committee that was acting in terms of its mandate – the mandate was very clear. There were certain individuals who might not be familiar with the format and, by virtue of their legal training, were trying to enter more of a ‘trial proceeding.’ Some of the difficulties with the directives came from that push and pull. This was not a trial. The Committee was guided by the South African legal system and law etc. The first witness, as an expert witness, was a very specific kind of witness that gave specific kinds of information. It was unfortunate that this was not explained before evidence was given. In order to ensure that the mandate was properly carried out – the Committee needed to enforce the directives better. The line of questioning at times had been adversarial. There had been unfortunate comments hurled around. It was being televised live – the whole nation could see it. One needed to bear in mind that this was not a jury system, it was a Committee of Parliament that would be making recommendations. The Committee was protecting the Office of the Public Protector – because that Office was there to perform a very important function for all South Africans. The person holding the office needed to be a fit and proper person. An enquiry was very important. She appealed to the Chairperson to be very firm with the directives, the constant questioning of the directives after these were accepted, the second-guessing, and the constant appeals to amend and alter the directives, were not good for this exercise.

Mr B Herron (GOOD) agreed with the Chairperson that the rule relating to double jeopardy did not apply in this instance. He suggested the Committee needed to look at directive 5.9. He was concerned that the Committee was raising questions using rule 5.9 and accumulating a pile of questions for the Public Protector before evidence was given. Most of those questions could be posed directly to the Public Protector in response to evidence. He suggested directive 5.9 would create a huge blockage for the Committee – particularly where questions were incomplete – such as on the previous Friday. If the Public Protector was going to give evidence, then the Committee’s opportunity needed to arise out of the evidence that the witnesses provided.

When the directives were first put before the Committee – the Public Protector’s team had raised a question about a narrow or broad approach. By that it was asked if an element of the evidence would be followed, that was used in support of the charges. An independent panel found that there was no prima facie on that evidence. This needed to be discussed. The legal advisor had said that the Committee needed to follow the motion. The Committee could decide not to call evidence that had not been assessed at some level by a judge or senior counsel as lacking any prima facie basis. He suggested the Committee should narrow its focus to those issues.

One needed to understand that the Public Protector was being ‘accused’ of very serious misconduct and incompetence and these charges were open to being tested via the witnesses. The point of the Public Protector being present, was to test the evidence given by witnesses against her. He did not think the Committee should be overly sensitive to the fact that the evidence of witnesses was being vigorously tested. Witnesses should expect cross-examination, particularly where evidence was given under subpoena. It was a legitimate process. He agreed that this was not a trial – but one was hearing evidence so as to make a recommendation to the National Assembly if that evidence was substantiated or not.

Ms M Sukers (ACDP) raised the issue of fairness. This should be the guiding principle. It was agreed that this was an experimental and novel process. In over 200 years in the USA, there were only four impeachments. This showed just how novel and experimental this process was. Fairness should be applied to the Public Protector, to the witnesses and to the people of South Africa. She had heard that the cost of this process was about R1 million a day (she was not sure if this was accurate). If one had 10 percent of that amount going toward child welfare centres it would make a huge difference. The effectiveness of the Office of the Public Protector was thus evidenced to be very important – as it ensured billions were better spent. The suitability of the Public Protector and efficiency of the Office needed to be ensured. The necessary changes needed to be made to strengthen the Office. These issues should be on the agenda as well. It was a novel process, and fairness needed to be ensured. The Committee needed to be willing to amend the rules where necessary – especially after a week of seeing how the process had developed. The process needed to move forward and the Committee should not overrun its programme. She suggested meeting regularly to ensure the process stayed on track.

Fairness to witnesses should be part of the Committee’s agenda. It needed to be dealt with. The witness the day before was very reluctant, understandably so, to venture into areas that could impact his career and livelihood. While his testimony may have been protected in a court, he may have needed legal advice, as there were many other places his testimony could be used (i.e. not just in courts). He should have been allowed legal advice – either by being allowed to answer in writing or via another mechanism. Witnesses needed protection – as there was an element of risk to them. The Public Protector had the protection of a very well-known counsel and had the opportunity to answer in writing, with careful reflection, without pressure and with input into the rules. This was something which the witnesses had not had. The hearing was taking place in Parliament. The witnesses coming forward were coming to address Parliament. She noted the issues around mental illness etc – this was taking place within Parliament not a court of law and the basic rights of South Africans should not be violated within the context of Parliament.

Ms D Dlakude (ANC) agreed with the Chairperson on the issue of double jeopardy. The Committee had its terms and references which were adopted by the National Assembly. The activities of the Committee were guided by the National Assembly. She wanted to re-emphasise that there was no pre-determined outcome. This was a fact-finding mission. The Committee had not come to the decision on the witnesses’ contributions being true or not. People had been subpoenaed to appear – it was a process of Parliament – there was no hidden agenda. The process could not be derailed. There was no hurry to take decisions but there were timeframes in which to complete work – delay tactics could not be used.

Mr V Zungula (ATM) stated that this was an enquiry to determine fitness, it was not a prosecution. With that in mind, the direction of the hearings would be somewhat balanced. When one enquired there would be both positive and negative. There needed to be fairness from the evidence leaders. He was interested in the list of witnesses that would be brought by the evidence leaders. If the evidence leaders only supplied witnesses that had negative views toward the Public Protector, and there were no positive witnesses, that would create an unfair process from the perspective of the evidence leaders. The Chairperson needed to be fair and balanced toward everyone.

He noted that from time to time, there were exchanges between the Chairperson and Adv Mpofu – there needed to be a ‘backroom’ where some of the issues could be ironed out, instead of those issues being played out in the public forum. There were times when Members of the Committee made silly insinuations against Adv Mpofu. The cross-examination would not be a ’sweetheart’ process. People would not be happy with it. Difficult questions needed to be asked. Difficult questions needed to be answered. Perhaps an expert was required to provide background to the Committee about cross-examination and what was legally allowed in the cross-examination.

Mr G Skosana (ANC) agreed with the Chairperson on the interpretation of double jeopardy. He agreed that the programme was a living document. He suggested it be left with the Chairperson and Secretary to amend and finalise it. He noted the directives issued to the Committee in terms of the National Assembly Rule 183. It was the Chairperson’s prerogative to issue such directives. He appealed to the Chairperson to look at Rule 5.9, which stated that a Member of the Committee, either directly or through the evidence leaders may ask Adv Mkhwebane directly to respond to certain questions posed orally or in writing – including disputes that may arise – even if she was not at the time giving evidence. It said that Adv Mkhwebane must respond to such questions immediately unless she requested a reasonable period of time in which to submit a response. He proposed questions to the Public Protector that Members wanted to ask during the witnesses being heard should be delayed until the Public Protector ‘took the stand.’

Mr Herron responded to Ms Sukers concern that witnesses did not have legal representatives. Of the three witnesses, one provided an affidavit, the other provided an affidavit as a so-called protected disclosure. The terms of reference made it very clear that examination was anticipated and provided for. Concerns around the cross-examination were already contained in the terms of reference. There was nothing in the terms of reference that said that someone who, before the Committee, in protest/reluctantly was entitled to be represented. Perhaps that was an omission in the terms of reference. Perhaps it should allow for those who appeared under subpoena to be assisted?

Mr N Seabi (ANC) appreciated the way the Chairperson had directed the process. All must be done to ensure that the process was fair and was ‘seen to be’ fair. He agreed with the proposal about directive 5.9. Sometimes Members of Parliament were tempted to interject – which contributed to the delays in the process. The process needed to be fair to the Public Protector and the public of South Africa. Witnesses were brought by the evidence leader or by the evidence leader in consultation with the Public Protector – he was not sure. The evidence leader must take pains to protect her witnesses.

The Chairperson noted that the issue around directive 5.9 had been canvassed and was largely agreed upon. He noted the suggestion of either enforcing that or re-looking at it. He acknowledged the points about fairness and the issues around witnesses. He suggested the discussion had covered some ground in relation to what Ms Fatima Ebrahim would present. He noted the suggestion of a narrow versus broad approach.

Mr B Nkosi (ANC) noted the issues raised. The Rules of the National Assembly applied to the Committee throughout its engagements with whomever. People who came before Committees of Parliament were robustly questioned – this was the same in this enquiry. As was done elsewhere, the general rules and etiquette needed to be followed for cross-examination. Badgering of witnesses should not take place. People’s rights should not be undermined. The Committee was on-course. The evidence leaders presented people to the Committee, the Members had a responsibility to probe deeper into issues that the affidavits brought up. One needed to be careful of overreaching. One needed to confine oneself to what was contained in the affidavits. The Committee needed to determine misconduct or incompetence. He agreed with the points made about double jeopardy. One needed to go back to what Adv Bawa said when she opened the proceedings (i.e. it was not a court of law), this was an enquiry done by Parliament. One should guard against other issues being brought in.

Mr S Luzipo (ANC) agreed with the other Members and the proposals put forward. The Committee Members needed to recognise the role of the Chairperson – there were mechanisms through the Parliamentary rules and procedures if Members were not happy with the Chairperson. This was a matter of national interest. People were looking up to the Committee to do what was in the best interest of the nation. One needed to be clear on the responsibilities of the Committee. It was difficult to determine what should guide the rules of fairness and equity in terms of the Committee’s system, disciplinary system and enquiry system. The evidence leaders had a duty and responsibility not to protect or defend the witnesses but to ensure that the process went as envisaged. If one was to ask questions of the Public Protector in the midst of a witness on the stand – there was nothing that stopped the entire process being defocused. There was no limitation on the questions that could come before the Public Protector when she was ‘on the stand.’ He suggested Members save their questions for when the Public Protector was ‘on the stand.’

Ms Dlakude suggested that the Committee was dealing with a ‘political party motion.’ As much as the motion was brought in by the Democratic Alliance (DA) – Rule 88 of the National Assembly Rules allowed for that. The trigger of the establishment of the Committee was based on Rule 88. There were accusations made against the holder of the Office of the Public Protector, for this to be dealt with by Parliament, it needed a substantive motion, which the Member of the DA submitted to the House. Hence, there was this independent panel which was dealing with the evidence. She wanted this to be clear to everyone.

Mr X Nqola (ANC) echoed the views of other Members. In terms of the process, the Committee was still doing fine. On 11 July 2022, it was said that these were uncharted waters. It was the first of its kind. Some matters had to be dealt with as they arose. The directives attempted to assist the Committee to deal with the proceedings. What was raised in the Rules of the National Assembly was that the Committee needed to impartially deal with the matter in a reasonable time. If one brought a lot of experts in it would impede the timeframes. He argued that the motion was not put forward by the DA, but by a Member of Parliament. This was the first of its kind. It was agreed in the first meeting that there would be some issues that would need to be dealt with and would be dealt with as they arose. He commended the manner in which the Members were proceeding with this matter.

Mr Mulder stated that in terms of the process going forward, he was not sure that the Committee could accept as a fact that the Public Protector would testify in her own right, like other witnesses, which would allow for cross-examination. Adv Dali Mpofu could at some stage inform the Committee that the Public Protector had decided not to testify.

Mr B Holomisa (UDM) asked that the Chairperson and evidence leader take time to scan and check the witnesses who appeared before the Committee. Especially the witnesses who were still facing disciplinary processes or related issues handled by the Public Protector’s Office. Some of the issues raised by witnesses came across as being put forward by aggrieved persons. Credible witnesses needed to be brought to the Committee – not to insinuate that the witnesses were not credible – but he had difficulty with both witnesses that were heard. The one was part of the so-called ‘rogue unit’ and there were grey areas. With the second witness, there was still a case pending in court.

Mr B Maneli (ANC) agreed with the initial remarks made by the Chairperson and Members’ input. The directives were issued. He commended the Chairperson for being democratic on the matter of the directives. The proposal on the table was to reconsider the directives and re-issue directives. In canvassing this matter it seemed as if the Committee was in agreement on this. Reasons had been given on how this would impact the proceedings going forward. On the broad and narrow approach, Mr Nkosi had covered him. The Committee was dealing with evidence put before them – the witnesses would have taken an oath in terms of what was being put before the Committee. Sometimes the information would be quite broad. The Committee had the responsibility when asking questions to remember directives 3.1 and 3.2 which spoke to what exact information one wanted to get from that. These were uncharted waters. It was important for Members to reflect on the rulings made by the Chairperson in consultation with the legal team. It was too early at this point to believe that the Chairperson may not have acted fairly. The Chairperson’s role was not to protect what was being asked or not asked. He raised concerns about the fairness applied to witnesses – one needed to work in the best interests of the public. Political affiliation did not arise – this ruling had been made.

Ms M Tlhape (ANC) indicated her support of the proposal that the Committee hold-off on questions to the Public Protector. Members could note whatever they wanted to ask and follow-up after on questions asked. If the Committee became erratic some matters might fall into the cracks. When a motion was adopted, it became a National Assembly matter. It would be appropriate for the matters around the witnesses to be handled by the evidence leaders instead of bringing it to the Chair. Being legally qualified, they were better placed. She commended the other Members of the Committee for balancing the purpose of the Committee – gathering empirical evidence and applying fairness. She noted the Chairperson’s ability to handle the difficult situations – she suggested he needed space to ‘steer the ship.’ It was up to the Chairperson to amend directives as necessary.

Input from the Parliamentary Legal Advisor
Ms Fatima Ebrahim, Parliamentary Legal Advisor, Constitutional and Legal Service Office (CLSO), alerted the Committee to the letter that Adv Dali Mpofu had mentioned during the course of the proceedings on 18 July 2022. The letter was sent to the Committee in the late afternoon on that day. The CLSO was in the process of preparing a response.

She took the Committee briefly through some of the issues. The first was the argument Adv Mpofu raised during the hearings, that he was of the view that the Committee was not a ‘removal’ committee as he had called it. There was an attempt to argue that the function of the Committee was pre-emptory. Following this process, there would be another process to determine the question of removal or not. That was not the CLSO’s understanding and was not supported by the way in which the rules were crafted. It was certainly not supported by any of the outcomes in the litigation processes to date.

Much of what was raised in the letter had been canvassed in court already. It was a rehashing of some of those issues. When the Committee responded, everything raised would be touched on. It was suggested that the continuation of the sitting breached the duty of fairness. It was maintained that in the absence of an interdict it was free to proceed in accordance with Section 237 of the Constitution. The Committee and Parliament were bound to carry out their duties diligently. Until a court ruled otherwise, it was advised that the process could continue.

There was an issue based on the Public Protector being denied access to materials and persons necessary to action her right to defend herself. The Office of the Public Protector and the Directors of Public Prosecutions (DPP), in particular, had offered support. That was the information before them. It was understood that Adv Mpofu had stated that access to emails had been restored and that there was a mishap of some sort. Adv Mkhwebane was being fully legally represented, per the Constitutional Court ruling. The CLSO intended to reply as such. If she was having difficulty in securing the presence of any particular person – it was built into the directives that the Public Protector could approach the Committee to deal with this issue. This was in line with the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act. The Committee would only consider this on a case-by-case basis. The Committee could decide to subpoena the relevant person if required.

The issue of the so-called ‘illegal suspension’ of the Public Protector was also included in the letter. That was the prerogative of the President. There was an allegation that the action tainted the process of the Committee – and that the actions of the Committee were therefore not permitted. Had the President chosen not to suspend her, the process would have still continued. The Speaker had addressed a letter to the President informing the President of the continuation of the Committee’s processes. This had followed the Constitutional Court proceedings. In terms of this, the Committee was allowed to proceed.

The marriage of Ms Mazzone was included in the letter. This had been raised by the Economic Freedom Fighters (EFF) in a separate correspondence to the Speaker. A legal opinion had been prepared on this. A letter would be dispatched to the Secretary of the National Assembly that morning. An issue was raised that no person from the DA should be on the Committee, because ‘a Member of the DA was the person that submitted the motion.’ The CLSO disagreed with this. Members needed to apply their minds rationally to the facts and evidence read against the rules, in order to find out if the Public Protector was indeed incompetent as alleged.

There was an allegation that the Chairperson was biased in the conduct of the proceedings so far. There were some general examples given. The content team had gone back to look into the records to find specific incidences and this would be responded to in more detail.

The double jeopardy rule had been dealt with, which was also raised. The rest were issues that the CLSO would deal with.

There was a suggestion that the directives were not fair and that suggestions made by Adv Mpofu and his team were rejected. This was not accurate, in fact, there were directives that were agreed on and other directives that were not agreed on. One of the issues highlighted was the narrowing of the motion. The Committee did not have the power to narrow a motion that was issued in full by the National Assembly.

A comprehensive response would be prepared and given to the Chairperson to consider and sign. The last matter raised was around sitting the following Wednesday. The Committee had agreed not to sit on Monday and Tuesday as part B of the hearings would be held in the High Court. Adv Mpofu indicated that he had requested that those hearings be extended to Wednesday. Counsel informed her, that the letter was only received in the late afternoon the day before and that it was unlikely that it would be accepted. The programme would be worked on, Members having agreed on this. There was some flexibility on that.

The matter of asking questions of the Public Protector during the proceedings was built into the directives following the Constitutional Court judgement. That judgement made it clear that the legal representative of the Public Protector could not give evidence on her behalf. The fact that the office bearer was entitled to legal representation did not imply that the Committee could not ask the Office bearer to respond to certain questions, even if she was at the stage of giving evidence under oath. There seemed to be agreement amongst Members that they would try not to ask questions that would delay processes but certainly, Members had a legal right to ask questions if those questions were necessary to be asked at that time. This was an oversight process.

Adv Frank Jenkins, Senior Parliamentary Legal Advisor, CLSO, stated that both the conflict issue and the double jeopardy issue were two of the twelve issues canvassed by the Public Protector in litigation. This was settled by the Western Cape High Court and by the Constitutional Court. On the conflict of interest – that could be shared with the Committee during the course of the day.

Mr Hendricks agreed with the legal opinions given that nothing should prevent the Committee from continuing the hearing. He was guided by the Zondo Commission which stated that Parliament had failed to do proper oversight. Parliament had to conduct proper oversight even if the President suspended or did not suspend the Public Protector.

Mr Herron posed a question about Ms Ebrahim’s comment on the narrowing of the enquiry. He spoke to the suggestion that not calling some of the witnesses to support some of the charges would be ‘narrowing.’ As far as he understood, there were four charges. All the evidence being called upon was in support of those charges. If the independent panel found that some of the evidence did not support the charges, why would the Committee call those witnesses – and how did it ‘narrow’ the motion?’ The motion was still the four charges of incompetence and misconduct.

Ms Ebrahim stated that evidence would be called in respect of all of the charges and sub-charges. Where the independent panel did not find that there was prima facie evidence, the threshold would be a bit higher. Where there was prima facie evidence – the Committee would need to hear the evidence being presented – to see if that evidence disputed the finding of the panel. One needed to be mindful of the fact that the mandate of the panel was narrow and was subject to a desktop exercise, where there had been no powers to call for oral hearings – it was restricted to the evidence that the Member included in support of the motion. Whereas a Committee of Parliament had other powers, to call people, subpoena people and listen to oral evidence etc. The Member who put forward charges might not be able to gather evidence. This did not mean that the power of Parliament should be limited.

Mr Herron stated that this was not that helpful and he did not agree with it. He was not sure what to do about that.

Mr Nkosi asked for clarity about the Public Protector’s ability to bring in witnesses. 

The Chairperson suggested that Mr Nkosi was suggesting that one went through this process without confining it either way.

Mr Herron stated that he was not suggesting that the Public Protector could not call witnesses in her defence. Charge 4 related to misconduct and incompetence and related to the intimidation and harassment of organisational staff. There were a number of witnesses and incidents that were submitted in support of that charge. The independent panellists found that the evidence did not meet the level of prima facie evidence. As Ms Ebrahim had said, a higher level of proof was required in the hearings than prima facie. Why would the Committee call a witness when there were other witnesses that could be called who supported the charge? Why would the Committee call a witness that had already been identified as unable to meet the standard of prima facie evidence? It was not about ‘narrowing the motion.’ It was about the Committee calling a witness when in the predetermination phase – the evidence was found to not meet the level of prima facie evidence.

The Chairperson suggested the Committee see how the process unfolds.

Ms Ebrahim stated that in respect of the names listed, if a witness was called in relation to a matter that did not relate to intimidation, harassment or victimisation of staff, they might be called in relation to another matter.

Closing remarks
The Chairperson suggested the matter be left there. It was important to adhere to the terms of reference and enforce the directives issued. There needed to be a balanced representation of witnesses. He noted the call for regular meetings amongst the Committee to iron out any issues that arose. Witnesses needed to be protected in this process – however, this could not be at the expense of the process or justice. It was a fine balancing act. He thanked Members for their attendance at Committee meetings.

The meeting was adjourned.

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