PP Inquiry day 10: Sphelo Samuel

Committee on Section 194 Enquiry

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

Video part one

Video afternoon session 

Video after part 2

Motion initiating Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from Independent Panel furnished to the NA

NA Rules governing removal

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

In this hybrid meeting, Mr Sphelo Samuel, reinstated Head of the Public Protector's Free State Office, underwent cross-examination by the Public Protector’s legal team based on his two affidavits and the testimony he had given. The witness had worked under both the former Public Protector Adv Thuli Madonsela and the suspended Public Protector Adv Busisiwe Mkhwebane. In February 2020, he submitted his first affidavit to the Speaker requesting that an investigation be launched into the Public Protector.

The witness’ evidence mainly focused on the Vrede investigation, where it was testified that the Public Protector allegedly attempted to ensure that no adverse findings were made against politicians in the report, including ex-Free State MEC, Mosebenzi Zwane, and former Free State Premier, Ace Magashule. The Public Protector’s legal team cross-examined the witness on a meeting the Public Protector had with Magashule, while the Vrede Fairy farm project was being investigated. The witness testified that it was not his expectation that the Committee just believe his speculations and make conclusions. The Public Protector’s legal team produced evidence of a letter written by the DA requesting the release of the Vrede report, which the witness accused the Public Protector of ‘sitting on’. The witness outlined concerns about Zwane’s attendance at the Public Protector’s birthday party in 2020, as at the time, the Public Protector was in the process of investigating MEC Zwane – which the witness described to be a conflict of interest and misconduct as it created the belief that Zwane was being protected. The Public Protector’s legal team however said that evidence would be led indicating MEC Zwane arrived uninvited.

Further cross-examination related to the charges brought against the witness himself, and the witness’ testimony that the Public Protector is not intellectually fit for office. It was suggested that a number of members of the Office of the Public Protector at the time were unfairly targeted, where charges and disciplinary action were brought against them. The witness testified that the Public Protector struggled in her role and that the restructuring of the Office had an adverse effect on the quality of the Public Protector’s reports. The witness was also cross-examined on his grasp of various court rulings referred to in the affidavits, which were adverse to the Public Protector and arguing her incompetence and litigious bent. It was alleged that the witness was a disgruntled ‘phantom witness’ who allowed the evidence leaders to introduce negative evidence.

Meeting report

The Chairperson announced that he had received the answers to the Members' written questions from Adv Busisiwe Mkhwebane, suspended Public Protector. He had asked the Committee Secretary to immediately email those and have copies printed for those Members who were there. It was agreed that the Committee would asked Adv Mkhwebane to confirm those answers.

Ms Fatima Ebrahim, Parliamentary Legal Advisor, stated for the record that these were written responses to the questions that followed the 15 July 2022 committee meeting where Mr Johann van Loggerenberg gave evidence. On 16 July, the Committee addressed correspondence to the suspended Public Protector wherein Members included all the questions as posed, and the suspended Public Protector then provided those written answers under cover of a letter dated 22 July 2022. However, the responses were not in the form of a sworn statement as required by Committee Directive 5.9. Further, the letter had requested that the responses be kept confidential until such time as the objections to the fairness of the process as articulated in the letter of 18 July 2022 had been dealt with. By the time the Committee received the response, Members would recall that the Committee had already prepared the letter of response in the 20 July meeting and indeed the letter was already sent. The Committee response to the request was that it is of the view that there is no legal basis to keep those answers confidential, and the Chairperson is in fact duty bound to share that information with the Committee. In the absence of the written answers done in the form of a sworn statement, she requested that the Public Protector confirm for the Committee that the written responses submitted on 22 July 2022 is in fact her sworn response. She reminded the suspended Public Protector that she was still under oath in terms of the Powers, Privileges and Immunities of Parliament and Provincial Legislature Act. She asked for that confirmation and then it would be added to the record and to the bundle of evidence.

Adv Mkhwebane confirmed under oath that the responses indeed were compiled by her and her legal team.

Ms Ebrahim said that was in order and they would be added to the bundle.

The Chairperson invited Adv Mpofu to begin his cross-examination and would examine his time at 15h00.

Adv Dali Mpofu said it was unlikely that they would finish at that time, but that there was no harm in revising the programme then. He asked for the Chairperson’s indulgence to, at teatime, extend it longer than 15 minutes, as there was a document he had left in his hotel and he would have to go and quickly get it.

Cross examination of Witness: Mr Sphelo Samuel
Adv Mpofu: Good morning, Mr Sphelo Samuel.

[In isiXhosa Adv Mpofu asked how Mr Samuel is doing; what his clan name is and said let us speak the language that everyone understands; that he is just warming up the witness; also that he does not know the Chairperson's clan name].

Adv Mpofu: Mr Samuel, did you get your medication and everything?

Mr Samuel: Yes, thank you very much.

Adv Mpofu: All right. Please, if you feel uncomfortable at any stage, just indicate and I'm sure the Chairperson will do whatever needs to be done.

Mr Samuel: Thank you.

Adv Mpofu: I'm going to try and make this as easy as possible by telling you upfront, which I've never done in my entire life, what theories and conclusions I'm going to try and persuade the Committee to reach about your evidence. If you agree with them now, then we'll take 10 minutes and then call the next witness. I’m going to argue that you have no personal knowledge of all the information that you alleged in your affidavit, and that it is mostly information that has been fed to you by the evidence leaders. Do you agree?

Mr Samuel: I will agree with you in part, but not entirely. I've stated that in my affidavit.

Adv Mpofu: Yes, that's fine. In part is good enough for now. I'll also argue that you have not familiarised yourself with the court decisions that you discuss in your affidavit, but that that is just a way of introducing those court decisions into evidence via you. It could have been anybody sitting there, all you have to say is, “Yes, yes, yes”. But then anymore, I could do that. In other words, there is nothing peculiar about you regarding those court decisions. You don't have a special knowledge of them. Maybe let me put it that way. Am I right?

Mr Samuel: That is correct.

Adv Mpofu: Thank you. That will cut out about an hour. I'm also going to argue that both you and the evidence leaders then in that endeavour, have given us a skewed and unbalanced view of the Public Protector's achievements by highlighting only the negative but not the positives. Do we agree partly, entirely, or not at all?

Mr Samuel: I do not agree. Can I qualify?

Adv Mpofu: Yes.

Mr Samuel: In my evidence I've stated that my laptop was confiscated and that in preparing my affidavit, I relied partly on my own recollection and also on the emails that were retrieved by the evidence leaders, but some of which I did not get as well as some evidence and records that would have been on my laptop. To that extent, I’ve had to reconstruct based on memory and the available information. I was not in any way persuaded to say whatever I said by the evidence leaders.

Adv Mpofu: No, that's fine. I think we are misunderstanding each other. That answer I accept for now – provisionally. But that's an answer to my previous question, not this one. That explains why you said you partly agree with me, when I said some of the information came from them. We'll come to that. Rather, I’m putting a different proposition and for now I just want to know if you agree or not, so that I can cut out or put back that hour. I'm saying you and the evidence leaders, after all that you've explained, have given the Committee a skewed and unbalanced view of the Public Protector’s performance, in that your concentrate only on the negative or what you perceive to be the negative, but not the positives. That even goes to the court judgments. Where there are court judgments that are in her favour, you don't highlight them, neither do they.

Mr Samuel: I don't agree. I did concede that there were some positives that Adv Mkhwebane brought in and that I agreed with. It's not entirely true that I only concentrated on the negatives; it might be that perhaps the negatives are more than the positives.

Adv Mpofu: Okay. So, it's partly true, but not entirely true?

Mr Samuel: Yes.

Adv Mpofu: That is good enough for now. I'm also going to argue that you, like Mr Tebogo Kekana, are one of the disgruntled employees who is bitter against Adv Mkhwebane for maybe her management style, rather than the issues pertinent to this Committee. What will you say to that?

Mr Samuel: I would not agree. I have nothing personal or otherwise against Adv Mkhwebane.

Adv Mpofu: No, I didn't say personal. I said that because of her management style and maybe some decisions she took that might have deprived you of claiming for travel and things like that.

Mr Samuel: I concede, I am very critical of her management style.

Adv Mpofu: That's good enough. Then I'm going to argue at the end, and again you’ll save us time or perhaps some time or all the time, that the so-called ‘reckless litigation’ that you talk about, is nothing but a result of the fact that in 2016 there was the famous EFF Nkandla judgment, which then invariably caused more litigation against the Office of the Public Protector. What will you say to that?

Mr Samuel: I would concede that it did escalate the bringing of reviews against the Office, but that right has always been there, even before that judgment. It is not the sole cause of the litigation. My evidence was that we did not generally defend all litigation against the Office, especially on reviews prior to her arrival. Mainly because we are not a litigious institution. My argument when it comes to that was that this litigation that flowed from her approach was not in the interest of the Office in all cases. Instead, it had the negative effect of portraying the Office in a negative light.

Adv Mpofu: That might be the effect. We’ll talk about that. I'm saying to you, and you're saying you partly agree. I'm pushing you to agree more than that. I'm saying that a major cost of the rate of litigation was the new attitude of the people you were investigating caused or rather encouraged by the EFF Nkandla judgment which made remedial action binding. You can blame me partly for that because I was acting for an Applicant in that case.

Mr Samuel: As I said I do not entirely agree.

Adv Mpofu: But partly you agree?

Mr Samuel: Yes. Perhaps I can put it this way, that perhaps it became more noted after the judgment.

Adv Mpofu: Yes, no. Fair enough. I'm happy with that. But I'm putting a time and I'm saying that judgment was a turning point in respect of the litigation against the Public Protector. Would you agree?

Mr Samuel: Yes, I would.

Adv Mpofu: Thank you. Mr Samuel, between you and I it’s a draw now, because we had an hour that I had to cut, now I put it back. But I think so far, we are doing well.

Mr Samuel: I see that you are even inspired by the colour that I wear.

Adv Mpofu: Our secret is out, yes. Thank you. Now, I'm also going to add, it's not on my list but it's just something I'm going to add, that you have a fertile imagination and you are a creative person. I'm not saying that in a negative way.

Mr Samuel: If you're not saying it in a negative way, I will take it as a compliment. I do use my imagination, yes. But definitely not in a negative way.

Adv Mpofu: Yes, I get that. Do you read spy novels and things like that?

Mr Samuel: No, I don’t.

Adv Mpofu: You don’t like mysteries and that kind of thrillers?

Mr Samuel: No, I don't.

Adv Mpofu: All right. I’ll come to that. Then I will also say that, and this is when it's linked to something I said earlier about the cases. I’m sorry, I can't remember your answer. When I said you have not actually read these decisions as much as it would look if one reads your statement, what did you say to that? The court decisions?

Mr Samuel: My answer? Now that you are rephrasing that question, my answer is that I am familiar with the cases but I don't have in-depth knowledge on them.

Adv Mpofu: But if somebody reads your statement, you will think that you have more than in-depth knowledge because you quote this paragraph and that paragraph and that paragraph and link it to this paragraph and then comes the conspiracy theory. Anybody reading your statement will be forgiven for thinking that you have read this judgment thoroughly and analysed them. Would you agree?

Mr Samuel: No, I don't necessarily agree.

Adv Mpofu: Right. I'll come back to that. Now, apart from not reading the judgments, have you read the Independent Panel’s Report?

Mr Samuel: No.

Adv Mpofu: Do you know of such a thing?

Mr Samuel: Yes, I do.

Adv Mpofu: The most extraordinary thing about evidence is exactly that. The fact that you traverse all these judgments: CIEX judgment, the Vrede judgment, the CR17 judgment, the Financial Sector Conduct Authority (FSCA). You go into detail in respect of all those judgments, and yet you say you haven’t read them in detail?

Mr Samuel: I did read these judgments in the past, and as I said in my affidavit, what concerned me was the negative publicity and the way these judgments, the comments made by the judges, panned out in the public. They had the effect of making the public lose faith and trust in our Office. That is what I quoted in those affidavits. That's what concerned me. I agree. I am not fully conversant with each and every case for the detail that you're referring to.

Adv Mpofu: Yes. I know that. I'm going to demonstrate it. But I'm saying, the impression you wanted to leave the committee with so that they may find Adv Mkhwebane guilty of the charges, which are mainly based on those judgments. This meeting is being recorded based on judgments. You do know that the charges are mainly based on judgments?

Mr Samuel: Largely, yes.

Adv Mpofu: Mostly, actually. I'm saying this, Mr Samuel. If you had not come here, let's say you just admitted your 70-page affidavit, and the evidence leaders decided not to call you as a witness and neither do we call you as a witness, the impression left with the Committee would be here we have somebody, an admitted attorney at that, who is analysing this judgment in great detail. And therefore, especially being a lawyer, we can take his evidence as more than just speculation, because here he is quoting chapter and verse from these judgments. And yet the reality is that you are not familiar with those judgments. And I will show you why I say that. Would you agree with that?

Mr Samuel: No, I would not. I cannot speak for the Committee. I don't know how they receive this information. It is not for me to persuade them. All I'm doing is to testify to the best of my ability and account.

Adv Mpofu: No, that's exactly what you are trying to do – is to persuade them. Both your statements are intended for the impeachment process. No?

Mr Samuel: No.

Adv Mpofu: When you were saying in your first statement that you are prepared to make another statement for whatever processes might follow, and I'm paraphrasing, what were you talking about?

Mr Samuel: My initial affidavit was accompanied by a covering letter. I specifically said, and also in the affidavit, my request to the Speaker was to launch an investigation into the conduct of the Public Protector in how she is running the institution. It was not in any way intended, certainly, for this Committee. I didn't have that in mind at the time, I didn't even know that was going to come. All I wanted, what I had in mind was that the Speaker would at least launch an investigation in whatever way. When I got the response that it had been referred to the Portfolio Committee, I thought that that Committee would launch the investigation. I did not prepare them for the impeachment. When I said at the end of my affidavit that I am prepared to supplement it in some way, perhaps not in so many words, I was saying if more evidence is required of me – because at that time I still had my laptop and I'm willing to come forward to testify through the investigating team that I envisaged might be sent.

Adv Mpofu: I see. So, when you say in the statement that you gave to this Committee, would you say that this statement you gave is the one that was foreshadowed in your initial affidavit that is not here?

Mr Samuel: Could you repeat the question?

Adv Mpofu: You said you are making this one which I have here with me. Okay, let me read it out to you. Paragraph 11 of your statement at 2072.

Chairperson: Are we able to have it flighted to remind everybody?

Adv Mpofu: Yes. You say: ‘as it appears that some of the grounds of alleged misconduct and incompetence against the Public Protector’. Those are the grounds of impeachment, do you agree?

Mr Samuel: Yes. ‘appeared to flow from my initial affidavit’. The initial affidavit is the one from February 2020, okay?

Mr Samuel: Correct.

Adv Mpofu: The [first] one, between us, had nothing to do with impeachment, but her impeachment process flowed from it. Does that make sense to you?

Mr Samuel: To the extent that it was sent and included here, I would need to come and testify, yes.

Adv Mpofu: Mr Samuel, please. I'm asking you a simple question. When you say that the kinds of alleged misconduct and incompetence, which are the grounds of impeachment, flow from your initial affidavit, a person reading that must understand that the impeachment charges flow from your affidavit?

Mr Samuel: Yes, that's what I'm saying. I'm agreeing to that.

Adv Mpofu: Against what you just told us two minutes ago, that the two had nothing to do with each other?

Mr Samuel: What I said was that affidavit was not meant for an impeachment hearing. It was meant for an investigation.

Adv Mpofu: Okay, that's fine. I'll take that for now. But at the very least, we agree that the impeachment charges flow from your affidavit.

Mr Samuel: My affidavit does make allegations of impeachable conduct. That is the same as saying, yes, I agree. But as I say, I qualified, at that time that was not my intention. I agree.

Adv Mpofu: All right. You are a lawyer, so if you want to say yes, you agree, just say so. Don't say something that is the same as saying yes. Okay. Then you say, because it flowed from the affidavit, you deemed it necessary, especially in the light of the Committee's rules. So you’ve even read the rules, the section 194(1)(a) rules?

Mr Samuel: They were explained to me.

Adv Mpofu: By who?

Mr Samuel: By the evidence leaders.

Adv Mpofu: Did you read them?

Mr Samuel: No.

Adv Mpofu: So you put something in your statement, or was it by the evidence leaders, about rules that you have never read?

Mr Samuel: Yes, I've not read the rules, but I had no reason to doubt what I was requested to say.

Adv Mpofu: What they were telling you, yeah. And yet you swore to God that this statement was the truth?

Mr Samuel: Yes, I did. But I did say in the affidavit as well, that some of the information is not within my personal knowledge, and I've amplified it based on what could be recovered. I considered that some of it might be hearsay, yes.

Adv Mpofu: It’s hearsay but you gave the impression it was hearsay from your co-workers, not hearsay from the evidence leaders. You never told us in this statement that you had, part of the hearsay was from the evidence leaders. Did you?

Mr Samuel: I did not. It’s the first time you're asking me about it.

Adv Mpofu: I will say you deemed it necessary, especially in light of the Committee’s rules, to amplify the contents thereof. In other words, to add to your initial statement, which flowing from the rules is the basis for the impeachment charges, correct?

Mr Samuel: Correct.

Mr Mpofu: Thank you. And then you say, ‘hence this supplementary affidavit as foreshadowed in paragraph 6.2 of my initial affidavit, in order to further assist the Committee to discharge its function’. The function of this Committee is to verify whether the Public Protector should be removed from Office. That's the same function you are talking about. Correct?

Mr Samuel: Correct.

Adv Mpofu: Now, how did your initial statement end up with Ms Natasha Mazzone (DA)?

Mr Samuel: I have no idea. It’s the first time I hear that it ended up there. I sent it to the Speaker, and as to what happened beyond that, I had no control. I don't know.

Adv Mpofu: Because a very strange thing happened, and your comment partly answered it, in that Ms Mazzone put a motion for the impeachment of the Public Protector on 6 December 2019 – 72 hours after the rules were passed by the National Assembly. On 28 January 2020, I will upload that letter as it was not relevant until now, we wrote a letter to the then Speaker, pleading with her that we should try and avoid this thing going to court brought on behalf of the Public Protector. One of the issues that we raised there was the fact that the motion was in any event defective because it relied on court judgments, as you and I have agreed, all of which had preceded 3 December, which was the date of the passing of the rules. As a lawyer you’ll understand; I'm sure you can see the problem already. We lawyers like using big words. We call it retrospectivity. So, we made the retrospectivity argument to say you can’t pass rules on 3 December and then charge someone for judgments that were in 2017 and so on, before those rules came. Do you understand?

Mr Samuel: I do.

Adv Mpofu. Right. That letter then caused something quite strange, because your affidavit came on 11 February 2020, correct?

Mr Samuel: Correct.

Adv Mpofu: And then on 21 February 2020, Ms Mazzone withdrew her motion, but put a new one with the same charges, same judgment, but this time it included your affidavit. In other words, the retrospectivity problem was now cured because there was at least one charge, which was of something that came after the passage of the rules. You understand?

Mr Samuel: I do.

Adv Mpofu: That's why I'm asking you this question because it looks like it was just a whole contrivance to cure that problem. But I take your word that if it was it was, but you were not part of it. You did not go to Ms Mazzone and say, 'here is a way out of this problem’.

Mr Samuel: No, I did not. All I can say is that, at the time that affidavit and the letter were already in the public domain. Somehow, I fielded questions in the press. Even that one, I don’t know how it got there.

Adv Mpofu: That's fair enough. So maybe she just seized the opportunity. Of course, the Speaker, needless to say, against our objections, accepted this new motion and it was never explained why. In fact that is the only reason, as far as we were concerned, that it has changed and we said so under oath in the subsequent litigation. I was saying, one of the most peculiar things about your evidence, which I found quite perplexing is that, and that's why I told the Chairperson in no uncertain terms that I'm unlikely to finish with you today because you have turned out to be probably the most important witness in the sense that you cover all the key judgments from which, to borrow your phrase, the impeachment charges flow. Do you understand what I'm saying? I can explain it if you don’t.

Mr Samuel: I understand, but it was not my phrase. You put it to me.

Adv Mpofu: The flow? No, it was yours. It's on paragraph 11, ‘ the alleged misconduct and/or incompetence against the Public Protector appear to flow from my initial affidavit’. When did I suggest that to you? Is it me or the evidence leaders? Are you mistaking me for the evidence leaders?

Mr Samuel: No, it is my affidavit and I own up to it. Yes, they appear to flow.

Adv Mpofu: Don’t accuse me of things I have not done. I am not Adv Mkhwebane. Alright. I was saying, Mr Samuel, that the most remarkable thing about your evidence is that you cover, let me put it this way, the key court judgments on which Ms Mazzone relies for her motion, which has unfortunately been kept intact despite the fact that the Independent Panel decided to close it, is that some of the core judgments are the Vrede judgment, the CIEX judgment, and the CR17 Bosasa judgment. All the other charges are there, but the core of the business why we are here are those findings made in those three judgments. Would you agree, well since you discussed it? And FCSA, the Public Protector just reminded me. And all four of those judgments are discussed in your affidavit. Agreed?

Mr Samuel: Yes.

Adv Mpofu: So that's why I'm saying no other witness, at least so far, is capable. Like if your evidence was believed, we could even just stop and impeach tomorrow. That's how important you are because you cover the core of the charges. Understand?

Mr Samuel: I do.

Adv Mpofu: Thank you. Now, I call that remarkable for a particular reason because the irony of ironies is that your evidence from which Ms Mazzone found sufficient grounds to include in her revised motion, actually does not refer to judgments at all. Do you agree?

Mr Samuel: I do.

Adv Mpofu: That somehow between you and the evidence leaders, the whole thing has transformed into this 75-page document, which discusses those four core judgments? Correct?

Mr Samuel: That's correct.

Adv Mpofu: In fact, the Independent Panel, made up of a retired judge and two senior counsel, singled out your evidence as the only evidence which is not reliant on judgments at all.

Mr Samuel: I did not read that report, but I would be able to see that.

Adv Mpofu: Okay. Can somebody put it up? Paragraph 103 of the Independent Panel report. I rely on my learned friends to assist me to identify it. I’ll just read it to save time; it's quite short.

Chairperson: ‘In all, but one instance’. Just go through that.

Adv Mpofu: I'll just read it; it will be put up for the Members later, just to save time. Yeah. It says, the Independent Panel says, ‘In all but one instance, charge four, the allegations of Mr Sphelo Samuel, the Member’, meaning Ms Mazzone, ‘contends that the evidence of the charges can be found in judgments or court papers’. They say, ‘Insofar as reliance is placed on judgments of court, we record that we are alive to the fact that the courts dealt with the conduct of the Public Protector in a different context’, and so on and so on. I've read that part, already, to the Committee before. But the point I'm simply making sure now is that if you wanted any further proof that your evidence “cured” the retrospectivity defect in the original motion, then here it is. Because as I say, what we had pointed out in our letter was that all these judgments predated the adoption of the rules, and hence, your evidence was put in. The point I'm making now is simply that it was singled out even by the retired judge and two senior counsel as being the only piece of evidence which was not based on judgments. And yet, that was in 2021. Now, here we are sitting in 2022. Your evidence is the one that covers the judgments more than any other witness. Big transformation. Do you agree?

Mr Samuel: Yes, I would agree, but I need to qualify that.

Adv Mpofu: Of course.

Mr Samuel: The date of my affidavit is the 11 February, and subsequent to that the first time I referred to judgments and the nature of the comments made by the judges, was in my letter to the Public Protector in March where I asked her to resign. So in preparing my affidavit, that was taken into account, that I’m making reference to cases, especially comments made by judges. So that is why this comes into my affidavit.

Adv Mpofu: That may well be Mr Samuel, I'm not quibbling with that. I'm simply saying, to the naked eye, here is Mr Samuel, the only person who doesn't rely on judgments for his impeachment efforts from which the charges flow. I’m simply saying, a year later Mr Samuel is relying on judgments more than any other witness who is going to assist. I stand under correction, maybe there is going to be another one who comes with having read all the judgments or even more, but for now you are the only witness who is the authority on this judgment. I'm just saying, surely you would agree with me that that's quite a big revolutionary change?

Mr Samuel: I will agree with you.

Evidence Leader Adv Nazreen Bawa: If I could just ask Adv Mpofu to please reflect what's in the affidavit, as close as possible to the affidavit. He's not represented as being an authority on the judgments. It was simply put in as a section where he says it informed his decision. There is no reliance on the judgments in the affidavit, other than in respect of his explanation of "reckless litigation".

Adv Mpofu: I don't think I need to react to that. We'll deal with it when we do legal arguments. I'll take you through your affidavit. Do you agree with what the evidence leader has just said that there's no reliance on the judgments in your affidavit?

Mr Samuel: Yes.

Adv Mpofu: No reliance?

Mr Samuel: No reliance, except for the comments that were made by the judges.

Adv Mpofu: But is there no reliance? That's what she said. Don't say except for, because if you say except you might undo this.

Adv Bawa: I qualified it by saying that the reliance on the judgments to which Adv Mpofu is relating. When I said no reliance on the judgment, it was in the context of the section on reinvestigation. The proposition which Adv Mpofu put to the witness was that he's an authority of the judgments based on his affidavit. That isn't what he said in the affidavit.

Adv Mpofu: Okay, that's fine. This will all come clear in time. Let's not get distracted Mr Samuel. I’m not putting it any higher than this, and I don't think we should waste time on this. I'm simply saying the Independent Panel found it remarkable and remarkable literally. They made a remark about the fact that your evidence was the only evidence which did not hinge on judgments. That's common cause now, I've just read it out to you. Agreed?

Mr Samuel: I agree.

Adv Mpofu: Now, I'm saying from that state of affairs to this state of affairs where, as I've described to you, you are the person, the only witness so far, who has relied partly or whatever, but you have placed some reliance, maybe let me lower it to that, on the four core judgments before this court, would you agree?

Mr Samuel: I’m not sure whether I'm the only witness who has tendered.

Adv Mpofu: Take it from me, you are. Okay, assume if you are, then we do agree then that that's a major transformation? If I'm not making that up.

Mr Samuel: I think I've answered that question.

Adv Mpofu: You think you've answered it?

Mr Samuel: Yes, I have answered that question. It is not the first time you are asking me that.

Adv Mpofu: What was the answer?

Mr Samuel: It was that I'm not standing here; I'm not sitting here pretending to be an expert in this. Yes, I am relying on the comments made by the judges.

Adv Mpofu: You are relying on them? That’s all I’m interested in.

Mr Samuel: Yes.

Adv Mpofu: The other remarkable matter will be found in the fact that having looked at your affidavit, and again this Committee has a different view but that's a matter that might be resolved some other time, but you accept, and I'm not claiming you're an expert on this, but you have a basic understanding of how the process works? That Ms Mazzone’s motion goes to an independent panel, chaired by a retired judge and two senior counsel – quite a serious and expensive exercise? I don't know what the purpose was thereof. But anyway, they thought at least the purpose was to filter the motion and distil it for prima facie evidence. Do you understand that? It's like what happens in a court case. You pass Section 174. If you pass, it’s called a discharge; if you don't pass Section 174 then you go into the real case. But if you win Section 174, you go home. Did you practice criminal law?

Mr Samuel: Yes, I did.

Adv Mpofu: That’s why I’m making that example.

Mr Samuel: Yes, I understand. But Adv Mpofu I battling to follow why I am required to comment on the process that was undertaken by the Independent Panel, using partly my affidavit, when I was not party to that. I did not refer it to the Independent Panel; it was by someone other than me. As I testified that my intention with lodging that affidavit to the Speaker was to ask for an investigation, not to impeach the Public Protector.

Adv Mpofu: Yes, but you intention now is for her to be impeached.

Mr Samuel: That is not my intention. My intention is to assist the Committee with the allegations that I made. As to the conclusion that is drawn, it is up to the committee not to me.

Adv Mpofu: Okay, now you are splitting hairs Mr Samuel. Your intention is to assist the Committee, and the function of the Committee is to verify whether or not the Public Protector should be impeached.

Mr Samuel: Yes, that is their decision, not mine.

Adv Mpofu: Of course. Believe me, that much I know. What I'm saying is, this philanthropic voyage is to assist the Committee, not all the committees here in this building, but the Committee that is designed to decide whether or not should be removed?

Mr Samuel: That is correct.

Adv Mpofu: And you say you don't know why I'm asking you about the process?

Mr Samuel: I'm referring to the process that I did not initiate, but my affidavit was used in that process. That is all I can talk about, my affidavit, but not why it landed to the panel.

Adv Mpofu: Yes. But you give the impression in your affidavit that you're familiar with the rules and the functions of this Committee.

Mr Samuel: To the extent that they were explained to me, that's irrelevant, yes. I'm not familiar. I don't know the rules, all of them. I cannot tell you that rule one say this.

Adv Mpofu: That you've said in fairness. I'm saying that you've referred in your affidavit to the functions of this Committee, and you would agree that they are as I've just described them?

Mr Samuel: I accept, you know, what you're telling me because I didn’t read the rules.

Adv Mpofu: No, don't accept anything from me yet. I'm accepting yours. You said at the end of paragraph 11, ‘Hence, the supplementary affidavit, as it foreshadowed in paragraph 6.2 of the initial affidavit, in order to further assist the Committee to discharge its function’. It is you who said that. So surely then, you know what the function of the Committee is?

Mr Samuel: Yes, I do.

Adv Mpofu: What is the function of the Committee?

Mr Samuel: It is to determine whether or not the Public Protector must be impeached.

Adv Mpofu: Let's not be distracted. I was saying to you that the role of the Independent Panel, among other things is to determine whether, because a motion can come from, you know, a Member might do a motion against me because they don't like me or whatever. That's why we have to bring independent lawyers and even a judge to cleanse the motion, so that whatever remains there is what should be. In other words, if it doesn't pass that stage, that's the end of it. That's why I was making the example of Section 174 to you, but I don’t want to confuse you. The only point I was making is the Independent Panel, for its trouble, decided that the only thing from your evidence which was worth inquiring into, or I should say that there were only two things. Those things we have actually not testified about. That's another remarkable thing. One was that the investigation into reinvestigating the Vrede project, with specific focus on the role of politicians and the scheme, was swept under the carpet. You said something to that effect. You remember that?

Mr Samuel: Yes, I do.

Adv Mpofu: So that's one allegation which you made. You know that that allegation is false because that reinvestigation was actually done.

Mr Samuel: I'm aware that the investigation was done.

Adv Ncumisa Mayosi: Sorry to interrupt you Adv Mpofu, can you just refer us to the paragraphs of the Independent Panel report you are referring to?

Adv Mpofu: No, not yet. I'm still cross-examining, and I'll come to that. I will refer you when it's appropriate. So far, we agree Mr Samuel, that was the first issue – the reinvestigation that was swept under the carpet. Those were your words.

Mr Samuel: At the time that I made that affidavit, I believe that the investigation was being swept under the carpet.

Adv Mpofu: Mr Samuel, don't get me wrong. I'm not attacking you at all. I'm simply saying that, or rather let me say I'm not attacking your bona fides at that time. That would be unfair to use the status quo now to attack what you thought in 2020. That's not what I'm doing. I’m saying that you accept now that allegation that reinvestigation was swept under the carpet turned out to be false, not that you were lying, but turned out to be false.

Mr Samuel: No, I don't accept that.

Adv Mpofu: Do you accept that factually the investigation was done?

Mr Samuel: Yes, I do.

Adv Mpofu: Do you accept that it was not swept under any carpet?

Mr Samuel: My belief is that there was pressure for it to be conducted and completed. Amongst other sources, it was the Portfolio Committee that impressed on the Public Protector to reinvestigate, and that's why it was done.

Adv Mpofu: You might be right, but please, let's get the timelines correct. I will remind you that you did say that sometimes your memory is not good. Yes, you are right that the Portfolio Committee impressed, let's put it that way, upon the Public Protector to reinvestigate, and the Public Protector actually issued a statement to say she was going to investigate specifically this whole hullabaloo about politicians. Okay?

Mr Samuel: Correct.

Adv Mpofu: And the officials involved. Remember, those were the big things – that she did not investigate politicians and also did not deal with the beneficiaries.

Mr Samuel: Yes.

Adv Mpofu: So you’re quite right. I'm agreeing with you, that complaint, which was the complaint that was bandied about mainly by the DA, even in the Portfolio Committee. But the point I want to just help you with is that it was raised in 2018, so that you get your timelines correctly. I'm just telling you as a fact, okay. If I'm making it up again, I'll be caught out. Then the reinvestigation was conducted. The Public Protector actually issued a statement to refute all these false allegations, giving the history that this investigation was actually started in 2014 by Adv Madonsela. By the time she came at the end of 2016, it had been ongoing, and so on, and explaining that provisional reports are not reports for public consumption. As you know, at that stage before the Section 7(9) format was changed. Agreed?

Mr Samuel: Yes, I agree.

Adv Mpofu: Now, if you accept what I'm saying is a fact, that so-called pressure that you are saying, let's for argument's sake say that this came in 2018, would you then agree with me that your statement that the reinvestigation was being swept under the statement, two years after Adv Mkhwebane had publicly said she was going to do it, was false? Objectively false? As I said, I'm not accusing you; you might not have known all this. But now that I'm telling you now, do you agree that it was untrue?

Mr Samuel: No, I don't.

Adv Mpofu: So, you evidence is therefore that the investigation that she was busy carrying out, or had carried out, was actually swept under the carpet?

Mr Samuel: I believe at the time, and if I follow your timelines, we're talking two years or maybe just about two years after she made an undertaking. And it was not. She kept making statements that the investigation is ongoing. As far as I'm concerned, there was no need for it to take that long because it was straightforward to look at the role of politicians. Yes, I had the belief then that it was being swept under the carpet because it was there being investigated, but it was not being finalised.

Adv Mpofu: Oh, I see. Did you know that she was doing the investigation?

Mr Samuel: Yes, I did.

Adv Mpofu: And when you made the statement that the investigation was being swept under the carpet, you actually knew that she was in the process of doing it, is that you evidence?

Mr Samuel: Yes, I knew that the investigation was ongoing, but it was being swept under the carpet because it was not being finalised.

Adv Mpofu: So how long should it take? When you did the Vrede investigation, how long did it take you?

Mr Samuel: My involvement started in 2015 when I relocated to the Free State, and that investigation was already ongoing. So, for me it took just about two years.

Adv Mpofu: Two years?

Mr Samuel: Yes.

Adv Mpofu: And when Adv Mkhwebane was taking about 18 months or so, she was sweeping it under the carpet?

Mr Samuel: You will recall that my evidence yesterday was that we made findings in my investigation, and we made findings about the politicians. To that extent I don't understand why it would then take that long for her. The evidence was that those findings against the politicians were removed from our report, meaning they were there and they were not supposed to be removed in the first place. So why would it take two years then to reinvestigate that party?

Chairperson: Is there something biting you there? You seem to be edgy in that seat.

Adv Mpofu: Yes, I'm allergic to this kind of information. Let me get it right. So, when did the Vrede investigation start?

Mr Samuel: My recollection is that the complaint was lodged in 2013.

Adv Mpofu: 2013, 2014, 2015, 2016. So when Adv Madonsela finished, it was four years in line?

Mr Samuel: When you say Adv Madonsela finished, what are you saying?

Adv Mpofu: Finished being a public protector when she finished her term.

Mr Samuel: I’d say three years, not four years.

Adv Mpofu: Three? That’s fine let’s leave it at three. And she was not sweeping it under the carpet?

Mr Samuel: No, she was not.

Adv Mpofu: So three years is not sweeping it under the carpet but 18 months is? Or less actually. That's why I started looking for my phone, to actually get the actual period – that's what was biting me.

Mr Samuel: My evidence was that Adv Madonsela kept sending it back because she was not happy with the fact that the role of politicians was not explored. So she did not sweep it. That is why she escalated it to me to supervise and to investigate. By her conduct, her constant monitoring, I don't believe that she swept it under the carpet because I was still involved then.

Adv Mpofu: That's fine. I see. So, effectively what you are saying is this issue of attending to the politicians should take how long for it's not to qualify as being swept under the carpet?

Mr Samuel: I cannot say it should take two months or three months or a year, particularly because when she was reinvestigating, she was reinvestigating as the Public Protector. She had all the powers that I did not have, but I had asked her to assist in issuing subpoenas against the politicians. It could have been done quicker because she was now investigating with all the resources that I did not have. My answer is that it shouldn’t have taken as long as it did. At the time I felt that it was being swept under the carpet.

Adv Mpofu: When did you start feeling that?

Mr Samuel: Around the time that I deposed to that affidavit.

Adv Mpofu: February 2020?

Mr Samuel: Yes.

Adv Mpofu: Okay, we'll come to that after tea just to save time Mr Samuel. You are unable to tell us, give or take, how long it should take just to attend to the issue of politicians?

Mr Samuel: Yes, I'm unable to tell you how long it should take.

Adv Mpofu: Okay, but surely you are able to tell us how long it took you to read it as being swept under the carpet?

Mr Samuel: Yes.

Adv Mpofu: How long?

Mr Samuel: It was almost two years since she had started reinvestigating the role of politicians.

Adv Mpofu: Okay. It was less than two years – it was a year and a bit.

Mr Samuel: Yes. I'm only working on the years. 2018 to 2020.

Adv Mpofu: December 2018 to January 2020, you call that two years?

Mr Samuel: No, it's not two years. But as I say, I'm explaining that, I mean, earlier on when you also made a similar argument, you even mentioned the years one by one – 2013, 2014, 2015. I mean, if we were to go back to the months, I would say the same thing to you that it's not three years or five years.

Adv Mpofu: That’s why I agreed with you.

Mr Samuel: I'm explaining, yes.

Adv Mpofu: I'm saying that, Mr Samuel, that's exactly why I considered the point to you because I was saying four years using that method and you corrected me and said its three years. And I said, fine, let's make it three years. So let's use the same methodology. Let's not shift according to when it suits us.

Mr Samuel: No, I also concede.

Adv Mpofu: Now, I don't want to waste time on this. All I'm saying is I will argue at the end that you apply double standards. Let me just develop the point; you can agree or disagree. On your own version, Adv Madonsela sat with the investigation for about three years. Okay? At some stage she was unhappy, particularly about the issue of politicians, correct? She escalated to you, right?

Mr Samuel: Correct.

Adv Mpofu: You took about two years just to deal with that issue. Correct?

Mr Samuel: Correct, yes.

Adv Mpofu: And I'm saying Adv Mkhwebane took less than both you and Adv Madonsela, but you say she is sweeping the thing under the carpet. Isn't that a bit much?

Mr Samuel: As I said she had resources that I did not have, which should have affected my timelines as well.

Adv Mpofu: Alright. So it was a question of resources. Adv Madonsela and Adv Mkhwebane had the same amount of resources, correct?

Mr Samuel: Correct, yes.

Adv Mpofu: And one of those resources was you, correct?

Mr Samuel: Correct, yes.

Adv Mpofu: We’ll come back to that if we have time. I was just simply saying that with all that debate that you and I have had, forget about the times and three years and what have you for now, but sitting there now, you know that the reinvestigation was actually carried out, yesterday?

Mr Samuel: Yes, I do.

Adv Mpofu: Therefore, this Committee should not be under the impression that the investigation was swept under the carpet.

Mr Samuel: The conclusion, yes.

Adv Mpofu: Fine. So now, that was the issue that the Independent Panel thought this Committee should busy itself with, but you and I have now agreed that we can throw that one in the dustbin. The other issue that the Independent Panel felt that it should come here – not all these other things. Actually, the Independent Panel felt like all these other things should go down to the dustbin of history, but the Committee has decided otherwise. The only other issue that the Independent Panel wanted to be brought here flowing, to use your word, from your statement was the fact that former Minister or former MEC, Mr Mosebenzi Zwane, attended the birthday party of Adv Mkhwebane. Do you remember that?

Mr Samuel: Yes, I do.

Adv Mpofu: Do you remember that you raised that?

Mr Samuel: I did, yes.

Adv Mpofu: Do you remember that you are the cause for that to be part of the business of this Committee? Or at least I can tell you that for free. You are the cause of that issue being in front of this Committee.

Mr Samuel: If it is in front of this Committee, and it came from me.

Adv Mpofu: No, it should be. Well, Mr Samuel, on that one you'll forgive me this Committee has its way.

Chairperson: Just allow him to conclude.

Adv Mpofu: Oh, I thought he had concluded I'm sorry.

Mr Samuel: As I said, when I prepared my initial affidavit, it was not with the purpose of it serving in this Committee. I didn't even know about this Committee then, and I want to believe it was not even formed at the time. All that I wanted was an investigation, and I made reference to her socialising with this particular politician amongst others. That information at that time was also in the public domain. I was certainly not in that party, but I got it from the media as well. To the extent that it now forms part of this Committee, I will take your word for it. I don't know. I am not aware that it is but if you say it is then I will accept it.

Adv Mpofu: Fair enough. You can take my word for it. I was at the party, by the way. The point I'm only making to you is this, and again I accept what you've just said now, but at least you must also accept that this august committee doesn't sit here just to listen, or at least shouldn't sit here just to listen to things just because they are in the public domain, because they come through a motion by a Member again, I'll tell you how it was supposed to be in front of this Committee but it's not, you are right, but that's a story for another day. It is that Ms Mazzone took your statement, as I've indicated earlier, and put it as part of her new motion, and therefore the issue of the birthday party attendance became a charge or part of a charge.

Evidence Leader Adv Ncumisa Mayosi: The issue of the attendance of the birthday party, can you just point us to where it is a charge in the motion?

Adv Mpofu: Adv Mayosi if you just bear with me. As you sit here now you don't seriously suggest that Adv Mkhwebane must be impeached and removed from office because Mr Zwane attended her party?

Mr Samuel: It is not for me to determine whether he or she must be impeached, as I said. If that conduct is objectionable and is impeachable, it is for the Committee to decide.

Adv Mpofu: Fair enough, but as you sit now, here, is it your testimony that one of the things that the Committee should consider, make that decision which I agree it's their decision. Or rather, one of the things you regard as misconduct and incompetence, to use your words from your affidavit, is the fact that former MEC Zwane attended a birthday party.

Mr Samuel: The conduct that I find objectionable that was and is today, is the fact that you cannot socialise with a person that you're investigating. It's a sign of conflict of interest.

Adv Mpofu: I see that was your only objection?

Mr Samuel: Yes. One of the issues I might add that reinforced my belief that the investigation has being swept under the carpet.

Adv Mpofu: Now, let's break that down into its constituent parts. So, that answer then means that you knew when you were doing your affidavit, that there was an ongoing investigation?

Mr Samuel: Yes, I knew.

Adv Mpofu: So you knew that that investigation had not been swept under the carpet or at least had not been successfully swept under the carpet?

Mr Samuel: Let me explain my belief. I believe you cannot sweep something that you are not business with under the carpet. It can only be something that's supposed to be ongoing in the context of that investigation. If the investigation is not finalised and there is this type of conduct by the person who's ostensibly doing an investigation, socialising with a subject of the investigation, and it's taking the time that it took, my belief was that it was being swept under the carpet because it is not being finalised. Yes, it was ongoing, but not being finalised.

Adv Mpofu: I see. Sorry, forgive me, it's the Bantu education. Your allegation was that she was sweeping it under the carpet, it was not already swept under the carpet?

Mr Samuel: It was an ongoing process. Yes, you're sweeping.

Adv Mpofu: Then it's my fault and that of the Independent Panel and your computer, because everywhere it says it was swept under the carpet, but that's fine. We'll come to that. I was just saying the following before we go back to the sweeping. As you are sitting here, is it your evidence or rather is it your conviction that simply because of the attendance of the Mr Zwane at the birthday party, that amounts to misconduct? I don't want to put it higher than that. Or one of your instances of misconduct or incompetence?

Mr Samuel: No, my evidence is that it amounts to a conflict of interest.

Adv Mpofu: Okay, fair enough, which is not impeachable conduct?

Mr Samuel: That is not my intention.

Adv Mpofu: No, I'm not asking about intentions. You don't think it's impeachable conduct? Or fair enough, you've said that before. You don't think it's misconduct or incompetence?

Mr Samuel: It is. I would say it is. It results in incompetence to appreciate one's role and therefore might be misconduct.

Adv Mpofu: Incompetence on whose part?

Mr Samuel: On the role of the Public Protector.

Adv Mpofu: So the Public Protector is incompetent because somebody attended her party. Is that the sum total of what this Parliament must consider?

Mr Samuel: Somebody who she was investigating attended her party and so it created the impression that she was protecting that individual or she might be protecting that individual.

Adv Mpofu: How old are you Mr Samuel?

Mr Samuel: 57.

Adv Mpofu: When is your birthday?

Mr Samuel: 16 February.

Chairperson: Why are you looking for a birthday now Adv Mpofu?

Adv Mpofu: We are talking about birthdays.

Chairperson: But he has just told you his age.

Adv Mpofu: Alright. So, if somebody attends your birthday party on 16 February next year, or if I attend your birthday party, I just rock up there, you didn't invite me. What must you do? Run away? If you don't run away from your own birthday party, you will be incompetent?

Adv Bawa: Can I just get clarity, is it the Public Protector’s version that Mr Zwane was at the party and that he rocked up there uninvited? Is that what's being put to the witness?

Adv Mpofu: Yes, it’s exactly what’s being put to the witness. Yeah. The first one is not just the Public Protector’s version. I was there as well. I saw him; you can call me as a witness.

Mr K Mileham (DA): Sorry, I'm a little bit lost here and I'll tell you why. I'm not sure where in the charges it relates to then MEC Zwane attending the Public Protector’s birthday party. I'm not finding that in the charges at all. I’d just like some clarity. I'd like to be pointed to that. It follows what Adv Mayosi was asking earlier, and we didn't get a clear answer on that.

Adv Mpofu: It was contended in Ms Mazzone’s revised motion. Maybe you can try and find it.

Mr Mileham: Can you point me to that in the charge sheet, please?

Chairperson: Let's do this, because I was going to come back on Adv Mayosi before you came in, because she would have asked that question and you said you're going to.

Adv Mpofu: Yes, I was going to and Adv Mayosi was kindly patient.

Chairperson: What I want to avoid is those kinds – all that it takes is a reference where that is so that we don't go into the afternoon with that not being responded to. I’m not asking you to respond to it now.

Adv Mpofu: No, I will.

Chairperson: What I'm asking was she asked a question even before that and you had a similar response about you are going to respond to it. Time lapsed without that; because it is about dealing with that issue and then we don't plan it unnecessarily.

Adv Mpofu: Fair enough. I will just go to that reference because I think it's burning Mr Mileham and Adv Mayosi was patient enough I don't want to stretch everybody's patience. If you go to page 82 paragraph 183 of the Independent Panel report. I think everyone knows, even a two-year-old child, but the Independent Panel was working on the charges that came from Ms Mazzone. Sorry, just for context, can you quickly just roll it back to 178? Just for context, Chairperson, this won’t take long.

Chairperson: No problem. 178, ‘This component of charges’?

Adv Mpofu: Yes. Just the heading.

Chairperson: The heading is Samuel.

Adv Mpofu: Yes. I just want to say, this is where the Independent Panel is dealing with Mr Samuel, Mr Mileham – the evidence that he has supplied. Then go back to 183. It says, ‘Having had regard to the allegations’, in other words to all your allegations Mr Samuel, ‘we found prima facie evidence of misconduct in only one respect’, says the Independent Panel. It says, ‘Samuel mentions that after the query by the Portfolio Committee on Justice and Correctional Services (through which the Public Protector accounts to Parliament), the Public Protector undertook to reinvestigate the project with specific focus on the role of politicians in the scheme and to interview the beneficiaries’. We've agreed on the that, you and I. ‘Samuel then alleges that the investigation was swept under the carpet’, so it was already under the carpet, ‘despite some of the findings in respect of Messrs Magashule and Zwane being made in staff reports submitted to her (the Public Protector).’ We'll come to that; that's false as well. But that's not the thrust of our tribunal. Then, here’s the birthday party, Mr Mileham, ‘The same Mr Zwane is said to have supported the Public Protector by attending her 50th birthday party that she hosted.’ Now, the only point I was making, well not to Adv Mayosi because I think that's the part she wanted, but to Mr Mileham, is that all that came from the charges, but there's more. As they say in the advert, all that and more. The Independent Panel then summarises, in fact, it thought it was assisting this Committee but it was making a mistake. It had something called Annexure A, which is at 117. Go to page 117 of the report, paragraph 262. I'll paraphrase. Annexure A to the Independent Panel report is the summary by the Independent Panel, which as I say, was hoping to help this Committee so that you know where it found prima facie evidence.

Chairperson: As long as you know that whatever they were doing, it was not meant for the Committee. It was meant for the National Assembly because the Committee arises out of the National Assembly. That’s the correct reading of those issues.

Adv Mpofu: Yes. 100%. It was the National Assembly and this Committee is the child of the National Assembly. So, by extension, whatever the National Assembly was doing, translated to this Committee but we'll leave that for argument – maybe not even here. Go to 263.8 when they summarise for the National Assembly the findings, this is what they say on this charge and this will now assist Mr Mileham. Under charge 11.3 Mr Mileham, then they say: ‘someone’. That's you, right? So they say these are the things that, whether it's prima facie evidence, must come here or to the National Assembly. ‘Sweeping investigations under the carpet.’ There, remember it said swept, so that means her action of having swept the investigation under the carpet that's the big one and we've all agreed, you and I have agreed, that that thing is not just under the carpet, it is now in the dustbin. ‘Having the person she is investigating at her birthday party.’ So it's 11.3. There's your answer, Mr Mileham. Charge 11.3.

Mr Mileham: The only person who's brought this birthday party into this discussion is Adv Mpofu. If you follow the evidence and the charge sheet, the charge sheet makes no reference to the birthday party. The evidence leader never brought the birthday party in here. The only person who's brought the birthday party in is Adv Mpofu. If Adv Mpofu hadn't brought it in, we wouldn't even be considering the birthday party. But he's brought it in and now he’s trying to knock it down. It's like setting up a straw man.

Chairperson: Alright. Yeah, he's brought it in and he's now elaborating where the origins of this are and he points us to the Independent Panel report I don't know if we have to make a fight about that, because he's referencing his own issue.

Mr B Herron (GOOD): I think the whole record that we have to consider includes the affidavit and the affidavit makes reference to the birthday party so I think Mr Mileham is incorrect.

Chairperson: Right. I want us to pause there. We’ll break for tea now and be back at 12h00.

Ms O Maotwe (EFF): When we come back can you call Mr Mileham to order. This, it's wrong Chairperson, you must make a ruling on it please.


The Chairperson welcomed everyone back to the meeting.

Adv Mpofu said that he did not want his cross-examination to be interrupted.

The Chairperson said that so far there was no interruption, all that was sought was clarities – which was important for the floor of the discussion. He would know when there was an interruption on Adv Mpofu’s work.

Adv Mpofu said that it was fine. His issue was that when he was cross-examining, there was a particular flow. Flow was a big word today when he got asked things like, ‘Where is it in the charge sheet?’ when it was clear that it was in the charge sheet, he got distracted, maybe not interrupted.

Adv Bawa said that before Adv Mpofu started, so that he was not interrupted, there was a difference between the charge sheet and the evidence which underscores the charge sheet. The question was put, ‘There is a charge with respect of the birthday party’. Adv Mayosi had wanted to know where in the charge it was.

Adv Mpofu said that he was not talking about Adv Mayosi.

Adv Bawa thought that it was fair to ask where in the charge it was. If the clarification was it is in the affidavit in the evidence underscoring the charges, that was something entirely different.

Ms Maotwe said that it sounded like the Chairperson could not hear Members on the virtual platform when in the House. The virtual Members had been calling for his attention for some time, but he was not hearing them. Are you able to hear us or not? When he was checking who was online, he did not call her name and she had tried to say she was here, but he could not hear her.

The Chairperson said that he was not calling everybody online. He randomly chose, so asked her to be on standby. At some point he would call her name but they could clearly hear her.

Adv Mpofu thought that Adv Bawa was responding to something that was not directed at her and wrongly so. Firstly, Adv Mayosi had never mentioned the word ‘charge’, so he did not know why Adv Bawa was responding. Adv Mayosi had asked if he can point out where in the document there was this reference about a party. He had said he would come to that, and it turned out that it was on that page that he went to. Mr Mileham was the one who asked about a charge and, ‘Where is it in the charge? He had said that when he went to Annexure A he would then identify which charge, and it was 11.3. It was not Adv Mayosi, so he did not know what that was all about.

Dr C Mulder (FF+) said that Members did not want to hold up the proceedings and make it difficult for Adv Mpofu when he was cross-examining. He thought that the intervention was appropriate in the sense that he heard, and maybe understood wrongly, that Adv Mpofu had put to the witness whether it is the situation that the Public Protector should be impeached because of the charge that someone attended the birthday party. That had created some uncertainty also on his part. Is that one of the charges being put to the Public Protector? That was why he thought it was being asked, but Members did not want to interfere with Adv Mpofu’s cross-examination. He thought it was just trying to get clarity on that statement.

Adv Mpofu said that the short answer was that it was part of a charge, and it was 11.3. He had demonstrated that before tea, and he thought this was really going to be behind them now. He had even demonstrated which charge it was part of and that it was one of the things that passed the test of the Independent Panel. How can it not be part of the charges?

Dr Mulder said that he did not want to be educated by Adv Mpofu, with all due respect. The Committee had heard what was said before tea. He was simply saying why there was an interaction and why the Committee had asked a question. He thought it was within the frame of mind that they could do that. He saw that Adv Mpofu wanted to proceed and he was welcome to proceed with all due respect, but he would have to respect the Committee as well.

Adv Mpofu said that he was not going to be harassed again.

The Chairperson said that there was no harassment here.

Adv Mpofu said that there was. Why is this thing of respect brought in whenever the shoe seems to pinch? What have I done now? He said that he was only explaining where the charge came from. What must I do now to show you respect?

The Chairperson asked Adv Mpofu to restrain himself from that.

Adv Mpofu referred to perhaps the origin of this problem. What happened to the complaint that was raised about conflict of interest on the part of Mr Mileham, and possibly other members of the DA, who are part of the complainant?

The Chairperson asked Adv Mpofu to begin cross-examining the witness. The Committee would tell him where that was. Members were aware that there had been a legal opinion in that regard, but he was not going to get into that now so Members did not interrupt his cross-examination.

Cross examination continued
Adv Mpofu: I'm sorry, Mr Samuel. Sorry this happens here. The reason I was asking you for your clan name earlier on was because you are a black person like me, correct?

Mr Samuel: I will accept that that's the reason why you asked me. I really don't know.

Adv Mpofu: I'm going somewhere with this. I'm saying to you would accept that in our culture at least you and I might not be responsible for who comes to your party?

Mr Samuel: Yes, I’ll accept that.

Adv Mpofu: And if someone comes to your party, and that's where we were earlier I think when I was rudely interrupted, I was saying, if I come to your party you are not going to run away from your party. That's obvious, correct?

Mr Samuel: Yes, I cannot run away from my own party. Yes. But if there was a potential conflict with one of the attendees attending my party, whether by invitation or otherwise, that will create a problem.

Adv Mpofu: For who?

Mr Samuel: For me. If I'm sitting at my party in the Free State in Bloemfontein, if someone comes to my party and I know that I did not invite them, there's no way I would have invited them; but if they come uninvited and I know that I've got an issue with this person in terms of my work, then I would make sure that they are removed or they are told somehow to leave.

Adv Mpofu: So if you have slaughtered there in Welkom, let’s say in your charge there you are investigating something, and then you slaughter and then one of the people you are investigating in that charge come and enjoy, you will do what?

Mr Samuel: I will make sure that they are removed. I don't have any issue but I don’t want to be in their company.

Adv Mpofu: But you will just allow them to do the bare essentials, and then you’ll kick them out?

Mr Samuel: It depends on at what stage I noticed their presence.

Adv Mpofu: Yeah. Anyway, we don't have to go there. I think we'll leave, but the long and short of it is what Adv Bawa was asking me. The Public Protector will give evidence that she never invited, or rather that Mr Zwane came there as a partner to somebody who was invited. Would you accept that at least?

Mr Samuel: If I say I will accept it, it is because that is what I know she has previously responded in the media enquiries.

Adv Mpofu: After your affidavit?

Mr Samuel: Yes.

Adv Mpofu: That's fine. I'm just saying now, post your affidavit, let me start by saying I accept that if she had invited him, then your point would have been higher I accept that. But do we equally accept, now that you know that she didn't invite him, that it's not an issue? Or it's not at least the issue that you thought it was, that she might have invited him?

Mr Samuel: If she had invited him, yes it would have been worse, but even accepting that she did not invite him, his mere presence there would be objectionable.

Adv Mpofu: To the extent that she must lose her job?

Mr Samuel: That is not for me to determine.

Adv Mpofu: That is fine; we’ll leave it those who must decide it. The real point I was making to you Mr Samuel is that according to the Independent Panel, having looked at you evidence, the only two issues that to them pass the prima facie test were the investigation having been swept under the carpet, which we've dealt with, and then this story which we've just dealt with now. They said, from what you had said, those were the only two things that this Committee needed to deal with. Or rather where there was prima facie evidence, let me not get into the controversy of that, where they found that there was prima facie evidence for misconduct. Do you understand that?

Mr Samuel: Yes, I understand.

Adv Mpofu: That's why you are here. Two things bring you here. One, it's your decision to do an affidavit on 11 February, which Ms Mazzone used as part of her motion. I'm accepting for now that it was a coincidence, she just took advantage of your affidavit. The second thing is that the Independent Panel did what I've just described on those two aspects.

Mr Samuel: My response to that is that I cannot explain why only those two aspects or charges were referred. I did not participate in charging or in formulating the charges. As I said before, my aim of my initial affidavit was completely different from what is happening here.

Adv Mpofu: No, that much I accept. It's not your own making, but I'm just saying that if the right thing had been done, if the recommendations of the Independent Panel had been followed in the way that we were suggesting, then we would have been dealing with you on those two aspects. I'm just saying I've now dealt with you on those two aspects. I'm now just going to deal with all the surplus, but as far as the Independent Panel you and I are done. Let's deal with the other issues that you have raised. One of the narratives that you want the Committee to believe, and that's why I was asking you about spy novels, tell me if I'm correct, that's going to summarise it, goes something like this. You were with Adv Mkhwebane at some place, so you proposed that she must meet with the Premier or that the Premier wanted to meet with her but she was against this idea and outwardly said, 'I don't know him. I don't know why he wants to meet with me.’ I can't remember the exact words. Something like that, correct?

Mr Samuel: That's correct.

Adv Mpofu: Then she was on the phone?

Mr Samuel: Thereafter she got a phone call, yes.

Adv Mpofu: That was one of the questions I wanted to ask, whether did she make the call or did she receive a call?

Mr Samuel: She received the call.

Adv Mpofu: So she received this call, she goes to some corner of the room. Correct?

Mr Samuel: Correct.

Adv Mpofu: She comes back after the phone call and one of the things she says is she has now changed her mind about that issue you were discussing. She's prepared to meet with the Premier, correct? So far?

Mr Samuel: Yes, but let me put it correctly. The word 'prepared’ might just distort it a bit. When she came back and said she had changed her mind, she said she will meet with the Premier and that I must come together with the CEO so that she can introduce us to him. She had made that decision already.

Adv Mpofu: Yes, this is after this phone call?

Mr Samuel: Correct, yes.

Adv Mpofu: And then, we'll come back to the phone call, fast forward, you go to the meeting the following day, or whenever? And then in the meeting she goes and has a chat, meeting or discussion, or meet and greet or whatever it is, but she's with the Premier. You and who is the other person?

Mr Samuel: The CEO at the time.

Adv Mpofu: You and the CEO are in the waiting room?

Mr Samuel: Correct, yes.

Adv Mpofu: Okay, then she comes back from the meeting, goes to the car?

Mr Samuel: Correct, yes. Goes to the lifts to get down to the parking suites.

Adv Mpofu: Then the Premier comes back and greets the CEO?

Mr Samuel: Correct.

Adv Mpofu: And he ignores you?

Mr Samuel: Yes, correct.

Adv Mpofu: And then he goes to his office?

Mr Samuel: I believe he went to his office. I don’t know where he went.

Adv Mpofu: So that's the novel. Now, here's the juicy part according to your theory, the fact that the Public Protector changed her mind about a meeting with the Premier – must have had something to do with the phone call?

Mr Samuel: Yes.

Adv Mpofu: Who was making this call?

Mr Samuel: I have no idea.

Adv Mpofu: What was being discussed?

Mr Samuel: I don't know.

Adv Mpofu: But you want this Committee to believe that her decision to meet with the Premier had something to do with a phone call?

Mr Samuel: That is my belief. I don't know whether we formulate the same belief, but that was my suspicion at the time and it still is.

Adv Mpofu: So it was your suspicion?

Mr Samuel: My belief. Replace that with belief, not suspicion.

Adv Mpofu: So it was not your suspicion?

Mr Samuel: It is my belief. Or it was my belief and it still is. I said please replace the word suspicion that I've spoken. I withdraw that. I'm saying it was my belief.

Adv Mpofu: You withdraw suspicion. Okay, that's fine in your belief, which is even stronger, and conviction, the change of mind must have had something to do with the phone call?

Mr Samuel: Yes.

Adv Mpofu: That's just pure speculation. You didn't hear, maybe, her saying the word Premier or something in the conversation that makes you think there's a connection? It's just pure speculation?

Mr Samuel: Yes, based on her behaviour prior to that and subsequent.

Adv Mpofu: I see if you're having this discussion about the Premier and if it was somebody else who was calling her, completely unaware of what you were discussing, and then she came back, having thought about wherever you had left the discussion, and then had changed her mind, then the whole thing would collapse. Correct? Your spy novel would fall away – the plot. I’m just saying assume just for a minute it was me calling her to ask for instructions about some unrelated case.

Mr Samuel: It would change the whole picture.

Adv Mpofu: The whole picture?

Mr Samuel: Yes.

Adv Mpofu: Right. That's actually what her evidence is going to be, that she never got any phone call that needed to change her mind. If she can’t remember if she had a phone call, but if there was such a phone call, she is not going to dispute that, but it must have been some other unrelated matter. You’d have to accept that unless you have something else.

Mr Samuel: Again I will take you back to my evidence that in preparing my initial affidavit, I wanted an investigation to be initiated. My mentioning that particular incident could have been investigated. If an investigation had happened to establish that indeed she received a call and from whom. That is possible to do if you contact the networks if perhaps the phone call – I don't know whether I should gather from what you put to me that she denies receiving the call, or she denies changing her mind after the call – but it can be established if she received a call at that particular time.

Adv Mpofu: No, that will not be necessary to go to the networks. I've just told you that she does not dispute receiving a call – she may have. How is she going to remember every phone call she gets in the past five years? I'm saying that she does not dispute receiving a call. And she receives calls all the time. She won’t even remember who called her last week. Neither does she deny that she changed her mind, for your comfort. Again, she might not remember the exact discussion between you and her but that's irrelevant for the purpose of what I'm asking you. Let's say that those two things that you are raising, let's say she admits them, let's say she admits receiving a call, and she admits changing her mind. That's not where the spy novel stuff comes in. I'm saying your theory, conviction, belief, suspicion, call it whatever you will, will fall completely flat if her evidence that if she received such a call, it had nothing to do whatsoever with what you and her might have been discussing. Or rather that, let me put it more concretely, her decision to have a meeting with the Premier of the Free State had nothing to do and was not influenced by any phone call. That will be her evidence.

Mr Samuel: I cannot dispute that that will be her evidence, I'll accept that.

Adv Mpofu: Yes, I know you cannot dispute it. I'm just telling you the implication thereof is that the entire plot will then fall away.

Mr Samuel: Let me throw a spanner in that question. For me, it would be suspicious if perhaps that call came from the Premier himself.

Adv Mpofu: Are we reinstating suspicion now?

Mr Samuel: No, I'm saying it would then reinforce my belief that he called her and made sure that she changed or at least make sure that she attends that meeting that he wanted. If that call had come from the Premier, it would explain why she changed her mind.

Adv Mpofu: Okay, that’s a new one then. That chapter I missed in the spy novel the call according to you came from the Premier?

Chairperson: No, Adv Mpofu, he says ‘if that call’. He is making an assumption but is not emphatically saying it came from the Premier.

Adv Mpofu: I didn’t say anything about emphatically.

Chairperson: Yes, but you're asking him now in a direct way, as if he said that the call came from the Premier, which he did not say. I don't want to interrupt you but I think I needed to clarify that.

Adv Mpofu: Thank you. I apologise. One of the theories is that the phone call may have come from the Premier. Is that your evidence?

Mr Samuel: It is not my evidence. I don't know where the call came from, but I'm saying in the line of the theory that you're building up that my theory would fall flat, I'm saying it would have been changed if the call, and I’m stressing if, came from the Premier.

Adv Mpofu: Good, that makes it much easier if it didn't come from the Premier then your theory would fall flat?

Mr Samuel: Not necessarily.

Adv Mpofu: What other scenario would your theory survive if it did not come from the Premier?

Mr Samuel: I really feel that I'm being forced to make assumptions and theories beyond what I made at the time. For me sitting here now it feels like I'm being required to widen the net of who might have called her at the time. As I said, if an investigation had ensued following me making that mention in my affidavit, it could have been established and we would not be discussing this now. It could have been established who called her and yes, if for instance, it was her son or her daughter who called her, I would accept that my whole theory falls flat – as Adv Mpofu has said. I cannot then respond to all the possibilities.

Chairperson: Maybe to indicate to you, this Committee is not going to force you on anything. The evidence leaders are not going to force anything on you, including Adv Mpofu. You have a right to answer the question to the best of your abilities and indicate in any other way there's nothing that is going to be forced here by anybody. If we are just on the same page on that.

Ms Maotwe: Yes, but you must answer the question. You must answer.

Chairperson: Ms Maotwe, firstly, you didn't raise any hand. You're barging in and directing your comments to the witness about him having to answer questions. That is completely out of order. I don't want you to repeat that.

Adv Mpofu: Thank you. Ms Maotwe is out of order. I confirm what the Chairperson is saying that no one will force you to do anything Mr Samuel. Are we together on that?

Mr Samuel: Yes, we are.

Adv Mpofu: And the last of those will be me. I'm saying I'm not forcing you to do anything Mr Samuel. If you don't want to answer, you don’t. I asked you a question. You took us to the phone call coming from the Premier, and the Chairperson corrected me that you only said ‘if’. Fair enough. Now, I'm saying you've already put the scenario where the phone call would have come from the Premier. Now you've said, when I say to you, which I thought was obvious, if the phone call did not come from the Premier then your theory would fall flat. Your answer was ‘not necessarily’. Remember that?

Mr Samuel: Yes.

Adv Mpofu: Now, 'not necessarily' means that the answer is neither no or yes. In other words, there's a space in between where what I'm putting to you may be wrong. All I'm asking you is, in what scenario, if the phone call did not come from the Premier, would your theory survive? That's all. I’m not asking you to do anything or widen or narrow. What's the answer?

Mr Samuel: I do not want to go into theories. I've explained that my theory came from, and that is the only theory that I have, came from her conduct before the call and after.

Adv Mpofu: Let’s leave it there; otherwise we will be here all day.

Chairperson: Unfortunately, we don't have all day.

Adv Mpofu: I know. That's why I'm moving on. The rest of the novel then, let's leave the phone call for now, is that at the meeting now you say that at some later stage she said to you, or actually it's an email, she said, ‘I've made a promise to deliver this report, people, please let's work on it’, and so on – to paraphrase it. Correct?

Mr Samuel: That's correct, yes.

Adv Mpofu: And your theory is that, or rather what you'd like the Committee to believe is that must have been that 15 minutes that she was with the Premier.

Mr Samuel: That is not what I want. It's not for me to dictate to the Committee what to believe and what not. I was just stating the fact that she sent that email and said that she had made undertakings. I did not say that she made an undertaking to the Premier or to any particular person. But she said she made undertakings and correctly you are referring to an email.

Adv Mpofu: I see. It must be my mistake there's no connection between the undertaking and the meeting with the Premier?

Mr Samuel: Yes, I did not make that connection.

Adv Mpofu: You did, Mr Samuel, yesterday, and we will play the recording if we have to. You made that exact connection. You said that you assume, and don't hold me to the exact words, but you gave the impression that you assume that this undertaking was made during her meeting with the Premier. Do you remember that yesterday?

Mr Samuel: I don't remember. But if I said so what I meant was that it could have been made there or subsequent to that. I was not in the meeting with the Premier, so I don't know where she made it and whether she had any contact with him or anyone else interested in that report. I don't know.

Adv Mpofu: No, I get it. But it could have been made at that meeting. That's as far as you can take it?

Mr Samuel: It could have been. It is a possibility.

Adv Mpofu: What does that mean? Was that one of the possibilities of what would have happened? The connection between the undertaking and the meeting with the Premier? I accept what you're saying that they might have maybe spoken many times after that, but one of your narratives was that this was made at that meeting.

Mr Samuel: My narrative is that it is possible that it was made there. She's then going to dispute that and put her own version. As I say, I was not in that meeting I cannot put it as a fact.

Adv Mpofu: Okay, let's get rid of that very quickly. She's going to dispute that. Just take that as a fact. That's not the issue I'm exploring with you. I'm saying again, just in this short novel we have written; we've already found one theory that destroys the whole plot. If she is correct that the undertaking not only had nothing to do with the meeting with the Premier, but had nothing to do with the Premier at all, then another pillar of the novel falls away, correct?

Mr Samuel: I cannot comment on that because I did not make a novel about it. You are building that novel, not me.

Adv Mpofu: I'm sorry. Let's withdraw ‘novel', rather your evidence. Let's call it evidence; your evidence on that aspect will fall flat if it can be established that this connection you were seeking to make is fanciful, imaginary, and non-existent?

Mr Samuel: My evidence of the possibility would fall flat, yes.

Adv Mpofu: Yes. That's fine. That's good enough. What do we have left? It turns out that if you cannot sustain the issue about the phone call and the issue about the undertaking, then that summary I was giving you must just be ignored?

Mr Samuel: I cannot dictate really to Committee whether to accept it or not.

Adv Mpofu: But can you dispute the statement?

Mr Samuel: It is up to the Committee to make out.

Adv Mpofu: I know it’s up to the Committee but I'm telling you what I’m going to argue. As a lawyer, you will know what I'm saying. I'm saying that if those two pillars of that narrative or, you don’t like the word ‘novel’, evidence fall away, then the whole thing must just be thrown away into the dustbin, correct?

Mr Samuel: I believe I've made my answer to that and I cannot say anything more than what I've said.

Adv Mpofu: You believe?

Mr Samuel: Yes.

Adv Mpofu: Alright. The Public Protector will give evidence, or actually not just the Public Protector. One of the witnesses we intend to call, Mr Musi Maimane, will give evidence that the undertaking that you were referring to was made in the legislature of the Free State by Adv Mkhwebane. Can you dispute that?

Mr Samuel: I cannot dispute that if she made it there.

Adv Mpofu: Well then, maybe we'll call Mr Maimane for other reasons, for his question on the Bosasa thing. We don’t have to call Mr Maimane on that? You don't dispute that the undertaking was made in the legislature?

Mr Samuel: I was there when she addressed the legislature. I don't have a recollection of her making that undertaking there, but prior to that she was in the holding room with the politicians. It's also possible that she might have made it there. I was not there but where I was in the open section, I don't recall her making that undertaking.

Adv Mpofu: Is it possible that she made it but you have forgotten?

Mr Samuel: It's also possible. Yes.

Adv Mpofu: That's good enough. Just so that we don't waste Mr Maimane’s time, can you put up the letter? That's Bundle H, page 78, letter from Mr Mmusi Maimane. While we are waiting for the letter, let me just fill you in, maybe it will jog your memory, that Mr Jankielsohn was actually the DA person who was the complainant in the Vrede matter.

Mr Samuel: I agree.

Adv Mpofu: He was in the legislature on that day and he was one of the people who was putting pressure on the Public Protector for the release of the report. You might not remember his exact words. It was a long time ago. But you remember that kind of discussion when she was at the legislature?

Mr Samuel: Yes, I remember that he was there, Mr Jankielsohn. But, as I said, I do not recall.

Adv Mpofu: No, I do not expect you to there's a letter from the DA Office of the Leader. It says, Dear Adv Mkhwebane, Release of the Vrede Dairy Farm Report’. Go to the third paragraph. ‘This report was due six months ago and we have it on good authority’, that might be you, ‘that you have been sitting on it for months’ or sweeping it under the carpet. That's another way of sitting on it and sweeping it under the carpet, is the same metaphor for delaying it, correct? Mr Samuel, have you done English 1 at least since you are a lawyer?

Chairperson: You are taking us through the letter.

Adv Mpofu: Yes, we are on the letter. The words are from that letter – ‘sitting on it’. I'm saying that sitting on it is the same as sweeping it under the carpet, correct?

Mr Samuel: No, I would not.

Adv Mpofu: When I say metaphor, I meant it’s a figure of speech. They don't really mention sitting on it or sweeping. It's just a metaphor. Not like a broom.

Mr Samuel: I cannot comment on that. For me it could mean anything. It could mean the report is ready but you are delaying in releasing it. I'm not going to comment on the logistics.

Adv Mpofu: Okay, that's fine. The next paragraph then says, ‘In March 2017, you confirmed to the Free State Legislature that the investigation was complete and that the report would be released in April. This promise was not kept. In July you assured us it will be released within days. It is now almost November and we will not be fobbed off any longer.’ So let’s take it step by step. Since you were there, does that refresh your memory that the undertaking, at least the first one, was made in the Free State Legislature?

Mr Samuel: I have no reason to doubt that it was made there. It's just my recollection but I have no reason to doubt what he said.

Adv Mpofu: I can't fault you on that Mr Samuel. It was a long time ago. All I’m saying to you is that now that I've given this evidence, you would agree with me that, at least from the DA’s point of view, the undertaking or promise was made at the legislature?

Mr Samuel: Yes, I do.

Adv Mpofu: And it was not made in some secret meeting with the Premier?

Mr Samuel: That I cannot confirm because I was not there. But with this proof, at least on the face of it, I accept that it was made there and it might be the first time. In the absence of anything else that flowed in that meeting, I cannot dispute that.

Adv Mpofu: So I think the sum total is that you don't know, well we already know you don't know what was discussed on the phone call. You don't know what was discussed in the meeting, of 10-15 minutes whatever, it was the meeting that you call it, between the Premier and the Public Protector, correct?

Mr Samuel: That is correct. That was my view.

Adv Mpofu: You have no reason to expect this Committee to believe that they were discussing the Vrede matter? Just completing that question that you have considered that you don't know what was being discussed, I'm simply saying you therefore have no reason to speculate that they were discussing the Vrede matter? Follows logically.

Mr Samuel: Yes, I don't.

Adv Mpofu: And such speculation could be dangerous to her and her career, correct?

Mr Samuel: I'm just digesting the question. I cannot conclude that if she discussed it there it would be dangerous to her career. I cannot make that determination. If she did, it would still be within her powers to discuss it there. It would not, in and of itself, mean that it is the wrong way for her to speak. We were busy with the investigation it would have made sense for her to raise it there or for them to discuss it.

Adv Mpofu: I don't claim to understand what you are saying.

Mr Samuel: What I'm saying is that you want me to answer to whether her meeting with the Premier there and discussing the Vrede report would be detrimental to her career. That is how I understood the question.

Adv Mpofu: Sorry, it is my fault. Forgive me. English is not my first language.

Mr Samuel: That is why I was digesting the question.

Adv Mpofu: I forgive you. This is what I was saying Mr Samuel, that since you have established one, you don't know what was being discussed. Two, you cannot speculate that there was any discussion or mention or anything to do with Vrede. I'm saying in the light of that, anybody who wants this Committee to believe that it must rely on the speculation that there was a discussion on Vrede, could be doing something detrimental to Adv Mkhwebane’s career and would be doing that wrongly because they would have no basis for that. Correct?

Mr Samuel: I cannot. In saying anybody, I cannot comment on anybody's speculation. I can comment on mine.

Adv Mpofu: Perfect. If you expected this Committee to rely on speculation that there was any discussion whatsoever in that meeting about Vrede that could potentially be dangerous to the career of Adv Mkhwebane, if it was accepted by the Committee?

Mr Samuel: Again, it is not my expectation that the Committee should believe and reach that conclusion. I gave that evidence as it happened. As to how it is received and conclusions drawn from it, is entirely out of my hands. That is not my purpose.

Adv Mpofu: So you gave it as it happened, what does that mean? It means Vrede was discussed? Is that what happened?

Mr Samuel: No. What I mean is what I've just said earlier when you prompted me, that it is possible. You put it to me as a possibility. I said it is possible that it was discussed, and there would be nothing wrong with it. It's also possible that it might not have been discussed. And for me, I'm not seeking to persuade the Committee to draw any conclusions from that. It is up to the Committee; I cannot dictate to the Committee what it should think about that. I'm just giving the evidence as I'm being asked.

Adv Mpofu: But I want us to work together. I'm saying to you, just assist me. Actually, not me, assist the Committee and the people of South Africa. I'm asking you a very simple question. If somebody said, in the light of the concessions you have made about the fact that this might not have been discussed, in the light of what I've told you that one of the most serious reports that form the charges of Adv Mazzone as she is sometimes called, is the Vrede matter. If somebody then says to this Committee, I can only speculate that the Public Protector and the Premier likely discussed the Vrede investigation, that person might be wrongfully putting the career of Adv Mkhwebane on the line based on incorrect information. That's all really. It's a simple statement. That person is you Mr Samuel.

Mr Samuel: I said I do not know what was discussed in that meeting. The purpose of my affidavit which mentioned that meeting taking place, was not for the purposes of process that would lead to Adv Mkhwebane being impeached and thereby putting her career in danger. That was not my purpose at that time.

Adv Mpofu: Are we talking about your earlier statement?

Mr Samuel: Yes.

Adv Mpofu: No, I'm talking about the one you did with the evidence leaders – the 75-page number. In that statement you say at paragraph 139.4 page 2120. Let’s start at 139.2 just for completeness. This is the spy novel, complete. ‘Initially, the Public Protector was unwilling to accede to the request.’ That's your request about meeting the Premier, correct?

Mr Samuel: Yes.

Adv Mpofu: ‘I accepted her position and proceeded with the briefing'. During the course thereof the Public Protector accepted a telephone call.’ So this telephone call came much later, after you had had the discussion?

Mr Samuel: What are you referring to?

Adv Mpofu: You are saying you proceeded with your briefing, then during the course of the briefing, she accepted a telephone call. I'm just saying that means it came later.

Mr Samuel: Yeah, it came sometime during the briefing. Not later.

Adv Mpofu: Oh, it came earlier.

Mr Samuel: If the briefing started for instance at 17h00, and she got the call at 17h10 or 17h05, that is later, yes. I cannot say what time is later, but it came after we had started the briefing.

Adv Mpofu: It could have been 18h00. It could have been 19h00.

Mr Samuel: Yes, I can’t recall but it was definitely in the late afternoon.

Adv Mpofu: Could have been 19h00?

Mr Samuel: No.

Adv Mpofu: Say 18h30.

Mr Samuel: Yes, it was earlier than that, between 17h00 and 18h00

Adv Mpofu: Okay, so let's say an hour later. That's fine. I'm happy with that. She gets a call an hour later and you link it to that discussion you had maybe an hour ago?

Mr Samuel: No, that is not what I said. What I'm saying is that briefing, my engagement with her in that briefing, took place between 17h00 and 18h00. It was not later than that. It was in the late afternoon or early evening. The call did not come an hour later after we had the briefing.

Adv Mpofu: How long did it come?

Mr Samuel: It came during that briefing.

Adv Mpofu: Yes, that's what I was saying Mr Samuel it could have been, let's say 45 minutes?

Mr Samuel: No.

Adv Mpofu: 30 minutes?

Mr Samuel: Yes, it could have been 30 minutes in the discussion.

Adv Mpofu: No, that's fine; the point then that I'm making is you have a discussion with them. Working on your timeline, 30 minutes later she gets some phone call and you don't even know whether she changed her mind before or after the phone call, correct?

Mr Samuel: Yes, correct. Are you asking me whether it is correct that I don't know if she changed her mind before?

Adv Mpofu: Yes. It is a very important thing.

Mr Samuel: I’m saying I don’t know.

Adv Mpofu: You don’t know? She might have changed her mind 10 minutes before the phone call.

Mr Samuel: That's what I'm agreeing to. I’m saying I don't know but she gave that indication only after the call.

Adv Mpofu: Let's forget about indication. On your evidence she could have changed her mind 10 minutes before that phone call.

Mr Samuel: It's possible but she did not communicate it then.

[Lunch break]

Adv Mpofu: Do you undermine or underestimate Adv Mkhwebane?

Mr Samuel: No, not correct.

Adv Mpofu: Do you think that she's not intellectually fit for her job?

Mr Samuel: Yes, I do.

Adv Mpofu: Do you think that she's intimidated by the likes of you?

Mr Samuel: That is my belief.

Adv Mpofu: Yes, and do you think you should be the Public Protector?

Mr Samuel: No.

Adv Mpofu: Do you think you should be a Deputy Public Protector? Did you have aspirations to apply for the job of Deputy Public Protector at some stage?

Mr Samuel: Not myself, but I was approached to check whether I would be interested.

Adv Mpofu: Whether you’d be available?

Mr Samuel: Yes. I declined.

Adv Mpofu: But surely you must have thought about it for a few minutes before you declined?

Mr Samuel: No, not at all. It wasn't an immediate decision.

Adv Mpofu: That's the problem. You were investigators or senior investigators at the same time as Adv Mkhwebane was at some stage, correct?

Mr Samuel: That is correct.

Adv Mpofu: So you think that she's not better than you? You don't think you are intellectually electing yourself?

Mr Samuel: Yes, I don't think so.

Adv Mpofu: So you are better than her?

Mr Samuel: That is not what I would say.

Adv Mpofu: I mean just in those stakes, in the intellectual stakes you are the one?

Mr Samuel: I certainly think I can handle some things better than she does.

Adv Mpofu: Yes. That is obvious. I'm just saying, do you think that is part of the problem that we're dealing with here?

Mr Samuel: No, it's not.

Adv Mpofu: Are you a male chauvinist?

Mr Samuel: No, I'm not.

Adv Mpofu: So why do you think we are better than her? Why? What makes you think that?

Mr Samuel: I did not say I'm better than her.

Adv Mpofu: Sorry, you think you’re more intellectually gifted than her?

Mr Samuel: I said I can make better decisions than she does.

Adv Mpofu: Yes, but you also think you are more intellectually gifted than her; we've established that, correct?

Mr Samuel: Yes. I think so.

Adv Mpofu: Do you think that one of the reasons she changed that structure called think tank was because she was intimidated by you, and people like you and Mr Kekana, of all people?

Mr Samuel: Amongst others, yes.

Adv Mpofu: Once again, if that theory can be proven to be wrong, that you're not particularly more intellectually gifted than her, then again, the house of cards will fall, correct?

Mr Samuel: If you cannot prove it, yes, but let me qualify that my belief, and I think I've said it in so many ways in my affidavit, is that she does not have practical application of the law. I believe she never practiced law and that is the difference in my decision making and hers amongst other things.

Adv Mpofu: And you have practical knowledge of the law yourself. Do you think?

Mr Samuel: Yes, I want to believe so.

Adv Mpofu: Good. Okay, we’re going to test that practical knowledge of the law in due course – not now. Do you seriously think that, or let me put it this way, do you and I agree that this thing called think tank used to sit quarterly, correct?

Mr Samuel: That's correct.

Adv Mpofu: It involved people come from all over the country, converging in Pretoria, staying in hotels, claiming subsistence and travel, properly and falsely, those kinds of things.

Mr Samuel: I will agree with you, but mostly I do not agree.

Adv Mpofu: Have you yourself never claimed subsistence and travel falsely?

Mr Samuel: No, I have never claimed.

Adv Mpofu: Have you ever heard of anybody doing that?

Mr Samuel: No.

Adv Mpofu: In all the 20 years?

Mr Samuel: I do not recall ever hearing of anyone.

Adv Mpofu: Alright. The think tank thing was a national gathering of people coming from all over. When Adv Mkhwebane changed that to a system which saves all that money of travelling to Pretoria, people staying in hotels, claiming subsistence and travel, according to you, to a system which was much cheaper, much more efficient, and with the unit, I think you described yesterday, for example, the quality assurance unit that was based in her office, remember?

Mr Samuel: Yes, I remember.

Adv Mpofu: She did all that because she was scared of you intellectually?

Mr Samuel: No, I didn't say that was the main reason why she cancelled it. What I said was that I was describing her conduct during those think tank meetings, and specifically her lack of leadership and ability to lead discussions and take decisions on the arguments that we would be making. I’m not certainly saying that was the only way that the think tank could operate. I think I must have testified about this yesterday, that there were other alternatives. Just like the management meetings continued virtually, I believe the think tank could also have at least continued or at least tried that before it was completely scrapped.

Adv Mpofu: Yes, but you see, you are not the Public Protector – whatever you might think of yourself. Do you accept that those leadership decisions have to be taken by the person constitutionally charged with them?

Mr Samuel: I accept.

Adv Mpofu: So the mere fact that you think you might be intellectually superior to Adv Mkhwebane doesn't entitle you to deny her the right to restructure the organisation, does it?

Mr Samuel: No, it doesn't.

Adv Mpofu: So the question I was putting to you is, do you seriously want the Committee to believe that her restructuring of the think tank into a much more efficient and less cost-effective body that doesn't involve everyone travelling to Pretoria and staying in hotels and all that was an act of intellectual inferiority? She was just scared of the intellectual giants like you speaking at the think tank?

Mr Samuel: That is not what I’m saying. There was nothing wrong with restructuring it and saving costs but there was, in my view, everything wrong with delegating that function to a smaller number of people and you’ve mentioned two. I'm not sure how many people were there but I know that there were very few, maybe two or three, at quality assurance. I'm basing that on the results that flowed from those reports.

Adv Mpofu: Don't get me wrong Mr Samuel, we can all have opinions as to what structure we should put at any given time. That is not what I'm questioning you about now. I’m questioning you about your inflated sense of intellectual superiority.

Chairperson: Adv Mpofu you are beginning to go overboard in terms of the issues and how you're putting it to the witness. You have spoken about intellectual giant, which he did not claim. You're now saying he has got an inflated ego. I don't think that you need to go there. I’d like you to proceed without using that type of language in interacting with the witness.

Adv Mpofu: It is not my language. You say that she was targeting her people, this she does especially to senior managers who she perceives to be a threat to her intellectual and legal knowledge. Is it your language this thing about intellectual superiority? Or is it mine, as the Chairperson accuses me?

Mr Samuel: That is the language I used in my initial affidavit. I think what the Chairperson was referring to was I didn't say that I have an inflated sense of…

Adv Mpofu: Intellectual superiority. Okay, no I withdraw that. You just thought that she's intellectually inferior to you, correct?

Mr Samuel: In some respects, yes.

Adv Mpofu: Let's keep it at that; it's your language that...as long as we've established that, so that I don't get wrongly accused of things.

Dr Mulder: Adv Mpofu is making the allegation now that you've accused him of this and that and the other. All you did was to ask him to turn down the approach in terms of the wording used towards the witness. I didn't hear you accuse him of anything. I think that is not correct.

Chairperson: Your order is sustained, Dr Mulder.

Adv Mpofu: Thank you Chairperson. I'm sure there's a reason why you are the Chairperson. I'm saying, Mr Samuel, you said she perceived senior managers, that would include you and other people who are senior managers, I think you might have even been hired, to be a threat to her intellectual and legal knowledge. Correct? And you say, 'which I submit, she lacks considerably’. Did you say that?

Mr Samuel: Yes, I did.

Adv Mpofu: So therefore, she is intellectually inferior to those people. Correct?

Mr Samuel: As I said, in some respects.

Adv Mpofu: That’s what I was saying. It’s his language about intellectual superiority or inferiority, it's not mine, it can never be attributed to me.

Chairperson: Adv Mpofu, I'm the Chairperson here in this inquiry. I redirect you in terms of your language and approach. You are not going to stay on that issue, trying to accuse what I was doing. I'm here to do that, exactly that kind of work – to you and the evidence leader, to the Members and everybody here. I don't think that's how we are going to proceed in this manner.

Adv Mpofu: I apologise. But how we are going to proceed is I'm going to use the language used by the witness. I'm saying, Mr Samuel, you said she lacks intellectual and legal knowledge. That's your view, correct?

Mr Samuel: That's correct.

Adv Mpofu: And you don't lack intellectual rigour and legal knowledge, correct?

Mr Samuel: I will not claim to be an expert in legal matters and so I cannot say that I don't lack that.

Adv Mpofu: Okay. You lack it less than her; you are a better intellectual and legal giant.

Mr Samuel: No, that's not what I said. I said she lacks the practical application of the law.

Adv Mpofu: No, that’s not what you said. You said she lacks considerably effectively in that department of intellectual and legal analysis. She lacks considerably. Do you also lack considerably?

Mr Samuel: That is an opinion that can be formulated by anyone but personally, in relation to myself, I don't consider myself to lack considerably.

Adv Mpofu: Only her?

Mr Samuel: I can make that opinion about her but someone can make that about me. If you want me to say that I put myself in the same bracket, I don't.

Adv Mpofu: You don’t. You put yourself in a higher bracket.

Mr Samuel: That’s the conclusion you draw, not me.

Adv Mpofu: You say, ‘She also used this tactic to have colleagues who qualify and are interested in applying for positions like that of the Deputy Public Protector, disqualified as she will then raise the pending allegations in public and all forms of media, including social media to tarnish their reputations and have them disqualified.’ In other words, disqualified from applying for positions such as Deputy Public Protector, correct?

Mr Samuel: That was correct.

Adv Mpofu: And you stand by that evidence?

Mr Samuel: Yes, I do.

Adv Mpofu: Now, apart from other things, this is the reason why she abolished think tank?

Mr Samuel: No.

Adv Mpofu: She didn't abolish think tank because she was scared of your intellectual powers?

Mr Samuel: I said her conduct in the think tank meetings demonstrated her lack of grasp of issues because she would jump from one to the other, but that is not necessarily the reason why she abolished the think tank.

Adv Mpofu: That is one of them. Is it one of them?

Mr Samuel: I believe it is one of them because it exposed her lack of taking leadership in those think tanks.

Adv Mpofu: You also believe that the abolition of think tank demonstrated her failure to provide leadership, guide and take charge of the think tank and exposed her lack of legal knowledge and the role she should be playing as leader of Public Protector South Africa (PPSA). You believe that?

Mr Samuel: That is not what I was saying there. I didn't say that is the reason for her cancelling the think tank.

Adv Mpofu: You did.

Mr Samuel: I’m saying the result of that kind of conduct which showed her lack of legal knowledge, exposed her limited knowledge to the extent that, and this is the effect that I'm drawing, that abolishing the think tank would stop that kind of exposure where she was being undermined by her staff.

Adv Mpofu: Say that again.

Mr Samuel: I'm not saying that is the reason she abolished it. I'm saying, abolishing it meant she would put a stop to a process that exposed her to us as lacking that knowledge.

Adv Mpofu: So the two things were not related? Didn't she – because she was feeling intellectually overpowered – as a result of that abolish think tank? It was a coincidence?

Mr Samuel: I'm saying that is the effect it had.

Adv Mpofu: Yes. But I know you're saying that now. I'm asking you whether it was ever your view that the two things were linked. In other words, she abolished think tank as a result, or rather she felt intellectually overpowered, and then as a result, she abolished think tank? You’ve never linked the two that way?

Mr Samuel: Yes, I will not link it.

Adv Mpofu: Why did you then say, ‘expose her lack of knowledge and the role she should be playing as a leader of the Public Protector South Africa? As a result, she abolished the think tank sittings and decided to report on her own with disastrous consequences.’ Do you agree ‘As a result’ links the two things?

Mr Samuel: It does, yes.

Adv Mpofu: Then which one is the truth? Are you relying on this one? Or with your previous answer, where you said you never linked them?

Mr Samuel: What I said was that it was not the only reason she abolished the think tank. I said that was the result of or the effect of her abolishing the think tank.

Adv Mpofu: Okay, so I'm making it up. You never said it.

Dr M Gondwe (DA): Through you, can I request that Adv Mpofu indicates the references that he's making in the affidavit and, if possible, if we could have it flighted so that we are able to follow because there's a back and forth and we're not totally sure what he's referring to.

Adv Mpofu: I'm sorry. It's 2753; it’s the statement of Mr Samuel that was used by Ms Mazzone.

Dr Gondwe: Are you referring to the initial affidavit?

Adv Mpofu: Yes, the 2020 one. At 2753. It's the middle of the page, where it says, 'this demonstrated’.

Dr Gondwe: Adv Mpofu can I ask you to go back. You remember you made reference to the fact that he indicated that he was intellectually more, if you could just go back a step.

Adv Mpofu: No. If you bear with me, I will tell you why – because I had started with a later paragraph, we're going to get there very quickly. Mr Samuel, have you got it? Can you see it? In your statement at 2753 where, just to round off the point, you say, ‘This demonstrated her failure to provide leadership, guide and take charge of the think tank and it exposed her lack of legal knowledge and the role she should be playing as the leader of the Public Protector South Africa. As a result, she abolished the think tank sittings and decided to decide on reports on her own, with disastrous consequences'. Are we together?

Mr Samuel: Yes.

Adv Mpofu: Okay that's how you were? Well, not only were you insulting her about the legal knowledge, but you were linking it. The point I was making at that stage was that you were linking the two, unlike what you're saying now. I was asking you which one. Were you lying in the previous answer or now? Which is it? Did you link them? Or did you not link them? As one of them is a lie and one of them is the truth.

Mr Samuel: What I was saying is that my understanding was that you were saying that is the sole reason why she abolished the think tank. That was my understanding.

Adv Mpofu: Okay, I'm sorry if I misled you that way. No, I asked you a simple question and I said, did you link the two things, and you said no. All I'm asking you now is a different question. I asked you again. You said it now, you did link them. Which one is the lie, which one is the truth?

Mr Samuel: I said that was the result. The abolishing of the think tank was as a result of the exposure she had during the think tank sessions. And so it meant that it brought an end to situations where she would expose herself in front of her subordinates to be lacking legal knowledge.

Adv Mpofu: Right. In other words, the two things were linked.

Mr Samuel: If that is the conclusion, yes.

Adv Mpofu: Then you further insult, ‘It also gave her the sole authority to chop and change the report submitted to her by provincial representatives.’ That's people like you. Correct?

Mr Samuel: Correct.

Adv Mpofu: ‘and chief investigators to suit her and her political motives, and protect those she wanted to protect.’ Who is that?

Mr Samuel: I’ve given evidence specifically to the effect that she protected politicians, like the former Premier Ace Magashule and Mr Mosebenzi Zwane, that was the reference.

Adv Mpofu: Okay. Because of that phone call, among other things.

Mr Samuel: No, I conceded that phone call I cannot say it was any of the two politicians that called her. I made specifically about the fact that she did not want to issue subpoenas against those politicians; that told me she wanted to protect them. That is what I was referring to there.

Adv Mpofu: And what were her political motives that you were referring to?

Mr Samuel: My view is that she supported politically or she aligned herself with those two politicians.

Adv Mpofu: Okay, I see. Just because they are politicians, they could have been members of the FF+ and she supported them or wanted their names to be removed from malicious political motives?

Mr Samuel: Yes.

Adv Mpofu: So you meant it in that sense. As long as you want people who might happen to be politicians to be removed, rightly or wrongly, then you have political motives?

Mr Samuel: By removed, what do you mean? Their names removed?

Adv Mpofu: Yes, sorry. Not removed from society as the apartheid regime used to say.

Mr Samuel: Yes, I would still believe that she's protecting them.

Adv Mpofu: No, remember you separated the two things. ‘Protect those she wanted to protect’, we’re done with that. But you said, 'to suit her and her political motives.’ That's what we're examining now. According to you, that means the fact that she might have wanted people who happened to be politicians to be removed from the report? Those were the political motives? Or is there anything else?

Mr Samuel: I have not testified to anything else that would fit that.

Adv Mpofu: So that's all it is. It’s the fact that she would want them to be removed from the report.

Mr Samuel: Yes.

Adv Mpofu: Just so that I don't forget. If you can roll it to page 6 and it starts on the second sentence. Well, you can read the whole thing but I started on the second sentence. ‘This she does especially to senior managers who she perceives to be a threat to her intellectual and legal knowledge, which I submit she lacks considerably.’ Alright, so what you were conveying then? The bottom line is this, you wanted the Committee or the Speaker or anybody who reads this seriously to believe that the reason, or at least one of the reasons, for her to abolish think tank and streamline it in the manner we've discussed, was because of this running away from the intellectual inputs of people like you?

Mr Samuel: If we go back to what I testified to as the purpose of this affidavit you are reading from, you will recall that I did not prepare it with the view to convincing this Committee, or anyone. My sole purpose was for an investigation to be commenced. Those facts would have been tested against that investigation.

Adv Mpofu: Yes, the testing would have happened. I agree with you. But remember, in this equation, you are the complainant. Right? So it would be tested by the neutral arbiter. But you, as the complainant, you believe what you believe otherwise there's nothing to test, correct?

Mr Samuel: Correct. Yes.

Adv Mpofu: So I'm saying you wanted those neutral people to, even for them to instigate or to institute an investigation, they have to believe that you have something, isn't it?

Mr Samuel: That's correct.

Adv Mpofu: And that something, I'm saying, was that she abolished think tank as a result of her intellectual inferiority, correct? Among other things.

Mr Samuel: Yes. They would have had to interview myself and everyone else that sat in the think tank to come to a decision whether my assertion was correct.

Adv Mpofu: That's true. They interview you and come to a decision, maybe agree or disagree with you. But you would believe that as the complainant in that equation that the reason she abolished think tank, among other things, was your intellectual superiority? Whether that will be believed later on is another matter. Do you believe it?

Mr Samuel: Yes.

Adv Mpofu: And you still believe it.

Mr Samuel: I still do.

Adv Mpofu: Good. Well, you are wrong on all counts. That will be her evidence on all counts. That was not the reason she abolished think tank and you are not intellectually superior to her you are wrong on all those counts. Do you want to comment?

Mr Samuel: I will accept that as her view and perhaps when she testifies, she will prove me wrong.

Adv Mpofu: We don’t even have to get there. How long did it take you to do the Vrede investigation?

Mr Samuel: Me myself, or?

Adv Mpofu: You yourself.

Mr Samuel: I have testified. I've answered that question earlier and said I became involved with the Vrede investigation when I relocated to the Free State and took charge of that office in March or April 2015. Not immediately, but you know, for all intents and purposes, I was back and in charge of that office because something happened and I only got back to work later on starting from that time to the time that I recall submitting my reports – that would be just about two years.

Adv Mpofu: About two years. That's a long time for an intellectual giant as you.

Mr Samuel: I’m not sure which part to respond to. A long time or not but I really have reservations to being constantly referred to as intellectual giant. That is perhaps the conclusion that you draw, yes, from my evidence and from what I said. But please do not put that as what I said.

Adv Mpofu: Sorry, maybe I’m exaggerating. Let’s withdraw the word ‘giant’. It’s a long time – for someone who's intellectually superior to Adv Mkhwebane.

Mr Samuel: I will only really comment on the time; the rest of your reference I do not agree with. What I'm saying is that, yes, it's reasonably long.

Adv Mpofu: Well, I'm just saying we don't have to wait for Adv Mkhwebane to testify. We can just compare who took longer to do the investigation. It might give us a clue who’s intellectually superior. How long did it take Adv Madonsela to do the Vrede investigation, since we're on the subject?

Mr Samuel: It was, I would say, about the same time. If you look at the fact that it was launched in 2013. Or no, maybe close to three years, taking it to the time that she stopped being the Public Protector.

Adv Mpofu: Longer than you?

Mr Samuel: But she was investigating through us. I don't want to respond to an issue that imputes that Adv Madonsela did not…

Adv Mpofu: Is intellectually inferior?

Mr Samuel: Yes, I'm not going to be drawn into that. What I meant is if you compare, and you want to work on those timelines, there was a time that Adv Mkhwebane started the investigation against the politicians after the initial report was reviewed and she was queried by the Portfolio Committee. If we start from that time to the time that she eventually produced the report, when the only aspects she needed to look at was the role of politicians, I believe that it was way too long. If you want me to compare it with an eight-year period as in the time of Adv Madonsela, I cannot really comment on that except to say that, yes, she was there during that investigation.

Adv Mpofu: I understand; we don't want to do that. You accept that; let me put it this way, you are regarded as, let's call it, the provincial Public Protector, correct?

Mr Samuel: No, I would not agree to that. That title is misleading but I was not the Public Protector of the province.

Adv Mpofu: No, I understand that. I'm using it loosely. I'm saying, in your turf in the Free State, you are the public face. Effectively, I'm making it up, like the provincial Public Protector?

Mr Samuel: If you’re saying the face of the Public Protector, then yes, I'll agree to it but I don't believe I was viewed as the Public Protector of the province.

Adv Mpofu: No, that’s fine – the face of the Public Protector for now. You do understand that the job of Public Protector, real or imagined, brings dangers and threats from those that you are investigating?

Mr Samuel: Yes, I do.

Adv Mpofu: And the people that you are investigating, particularly the powerful, politically powerful, would be wanting to retaliate and visit you with calamities to discourage you from such investigations, correct? It is to be expected.

Mr Samuel: I have never been in such a position. I've never felt threatened in any way; I cannot speculate. I know the Public Protector has a lot of guards. If that is as a result of threats made to her, that is so, but I cannot say that being in that position automatically means that you're facing threats. Because I've never had any.

Adv Mpofu: So our Chief Justice Mogoeng was speaking to the unanimous Constitutional Court when he said that those powerful forces who might be investigated by the Public Protector might visit her with what he politely called an ‘unfriendly response’. That was actually not really your experience?

Mr Samuel: Yes, in my experience, personally speaking for myself, I have never been in that position. But I know that all the Public Protectors had guards in as far as they are concerned. I know that is preceded by some kind of security assessment, and to that extent I believe, yes. There might be some kind of imminent danger, yes.

Adv Mpofu: No, that’s fine. You have said more than three times that you've never been in that situation, I believe you've never felt that threat just from the position?

Mr Samuel: No, I've never felt it.

Adv Mpofu: Never, never, never?

Mr Samuel: I have never been threatened and I cannot recall any situation where I would have felt that I'm threatened.

Adv Mpofu: Yes, very well. Mr Seabi, you assaulted him. But I thought you were saying you assaulted him because he was threatening you?

Mr Samuel: I deny that I assaulted Mr Nchaupe Seabi. That has been my story throughout. I described the incident of what happened and maybe I should just, at this stage, add – I don't recall doing it yesterday – that I have appealed that conviction and the sentence. If you are going to impute that the matter was finalised and I was found to have assaulted Mr Seabi, I am not going to be involved in that because they will be tested before the High Court in Polokwane. I may have been found guilty by the Magistrate's Court, but I have appealed it. I'm sure you and I and everyone else knows that an appeal suspends the conviction and the sentence. Engaging me in the detail and suggesting that I assaulted Mr Seabi, which is what I denied throughout, I will not comment on that.

Adv Mpofu: Okay. Your superior legal knowledge, where does that come from? When an appeal suspends a conviction and a sentence? So if you are in jail and appeal, you are taken out of jail?

Mr Samuel: If you apply for bail, yes, you might be.

Adv Mpofu: No, we are not talking about bail. You just said that an appeal automatically suspends a sentence and a conviction. Where did you learn that?

Mr Samuel: I studied law at the University of Natal; I learned it there and, in my practice, in the years that I practised.

Adv Mpofu: Really? If you had a client who was convicted and sentenced, and then they appeal, they get let out of jail?

Mr Samuel: That is not what I said. The reason why I'm out is because I paid. There was an option of a fine which I paid, but without prejudice to the fact that I was appealing. It is not an automatic thing. In my case, it was to secure release – I had to pay that. I'm not saying that automatically means that you're not guilty, but the effect of an appeal, I'll stand by that.

Adv Mpofu: I hear you. Let me just unpack it for you. You chose to pay a fine, correct?

Mr Samuel: Yes.

Adv Mpofu: If you didn't choose to pay a fine, you would have been imprisoned, correct?

Mr Samuel: Correct.

Adv Mpofu: So let's say that happened recently, you would still be in prison now, correct?

Mr Samuel: No.

Adv Mpofu: Okay. Let's say that sentence happened two months ago; what was the duration?

Mr Samuel: It was two months or R2000 and half of it suspended.

Adv Mpofu: I understand. For the purposes of this discussion, let's say that happened last week. If you didn't pay the fine, you would be in prison now, correct?

Mr Samuel: Yes. Until I apply for leave to appeal and it is granted.

Adv Mpofu: ‘And it is granted.’ Has it been granted?

Mr Samuel: Yes, it has.

Adv Mpofu: And has the appeal been granted?

Mr Samuel: No. It's still pending before the High Court.

Adv Mpofu: Yes, that's what I’m saying Mr Samuel. We don't have to waste time on this. I'm telling you. Okay, let me put it to you so that we save time. I put it to you that if you were sentenced last week, to R 2000 or two months, and you did not pay the fine and you applied for leave to appeal, and it was granted, you'd still be sitting in jail. Am I correct or not?

Mr Samuel: If I had not paid the fine and yes, I have not applied for bail, yes, I would still be sitting there.

Adv Mpofu: So I'm correct?

Mr Samuel: Yes, you are correct but I just need clarity here. Is the purpose of us sitting here to determine my legal understanding or my understanding of the law?

Adv Mpofu: No. I'm sorry if I gave you that impression.

Mr Samuel: I just wanted clarity because you seem to be dwelling too much on this. Like I said, I don't want to comment too much given the fact that it is pending before the court.

Adv Mpofu: No, I’m very sorry Mr Samuel if I gave you that impression. I was just disputing your statement that simply because you have been granted leave to appeal that means that the sentence is suspended. That's false, clearly, that is false. We can’t leave this Committee with that impression. Do you understand that you are still a convicted criminal?

Mr Samuel: I choose not to answer or to respond to that. I don't consider myself to be a criminal.

Adv Mpofu: I don't care what you consider. I’m putting it to you that you are a convicted criminal, Mr Samuel. Yes or no?

Mr Samuel: I deny it.

Adv Mpofu: You deny it. Well, then you're also lying because you know that you are a convicted criminal. That's fine you are a person who is convicted, a criminal convicted of assaulting a member of the public, acting as a provincial Public Protector or a senior person in the Office of the Public Protector as you sit there now until you appeal that, either confirm or address that, correct?

Mr Samuel: I don’t have a comment to what you said.

Adv Mpofu: Do you want to assist this Committee or not?

Mr Samuel: I believe I am. But I've made my point clear that I am not willing to go into a matter that is pending before court. Being labelled a criminal, I find it objectionable.

Adv Mpofu: I'm sorry if you find it objectionable. You are not labelled by me; you are labelled by the magistrate who convicted you.

Mr Samuel: The magistrate convicted me, but you are the one labelling me.

Adv Mpofu: Okay, what do we call somebody who has been convicted in a criminal court?

Chairperson: You've asked him a question. He has given an answer, says he's not going to comment on that, and he further objected to your reference. I would like us to move beyond that.

Adv Mpofu: No, we are not moving an inch. We are not going to move.

Chairperson: He has answered you. He's not necessarily going to give you a specific answer that you want. He's given his answer in terms of what he believes is correct.

Adv Mpofu: I don't want any answer. I’m saying that he must tell the truth.

Chairperson: You asked him a question. You can’t say you don’t want any answer. You are asking him questions here, so you can't just now come back and say you don't want any answer while you have been asking questions.

Adv Mpofu: I'm saying to you, because you're saying he is not going to give the answer that I want. He didn't swear to give answers that I want; he swore to speak the truth.

Chairperson: You're not happy with the way he is answering?

Adv Mpofu: Yes. I'm not happy.

Chairperson: But that should not really be the problem of this inquiry because he is answering.

Adv Mpofu: It is the problem.

Chairperson: He is responding to your questions.

Adv Mpofu: Yes. I've said this before.

Chairperson: You are spending an hour on one issue.

Adv Mpofu: Well, that's a different matter. Now you're raising the question of time, but you were saying he must not answer my question. You're not allowed to do that. He must answer my question.

Chairperson: I'm here and he is doing that.

Adv Mpofu: Yes, but answering my question is not just moving lips. I'm saying he must answer my question. I've asked him the question. I'm not going to move an inch until my question is answered.

Chairperson: No, you have repeatedly asked your question. He has repeatedly answered your question. I'm sitting here all the time. I'm not going to do that, you know, but I want you to proceed. I have to deal with relevance here and repetitiveness of your questions that you are asking, which are responded to all the time. This witness, since yesterday and today, has been answering all questions. You might not like the answers; let's accept his answers.

Adv Mpofu: Okay, thank you. You are ruling that my question is irrelevant? Is that what you are saying?

Chairperson: Did you hear me saying that?

Adv Mpofu: Yes. It's just that you are dealing with questions of relevance. That's what you just said.

Chairperson: No, I’m saying the repetitiveness of your questions is unacceptable because the directives are very clear in terms of how we need to do that and you know those directives. I would like you to proceed please.

Adv Mpofu: Okay. The directives are that I have a right to cross examine you, sir. That's what I'm busy doing and I'm going to do it. I was saying Mr Samuel, before that, that you and I are lawyers. Apart from anything else, you have also sworn to speak the truth to this Committee, and you’ve also committed to assist them. Don’t worry, relax. There's no crisis contrary to popular belief.

Mr Samuel: I’m not worried.

Adv Mpofu: Okay, at least you’re not worried and neither am I, so we are cool. We are going to finish this. If it's going to take us long, it's going to take us long. There is a person here whose job is on the line, whose career is on the line, whose reputation is on the line, whose dignity is on the line because, among others, you sent a document which was taken by a Member of this Parliament and used to sanitise the motion that was defective in the manner that I described to you this morning. Let me tell you one thing for free. We're going to finish this cross-examination and we're going to deal with every topic because as I explained to you, you are probably the most important witness. Otherwise we'll be kicked out, whatever happens. Anyway, I was saying to you, what do we call a person who is convicted in the criminal court of a crime?

Mr Samuel: You call him or her a convicted person.

Adv Mpofu: You will also call him or her a convicted criminal.

Mr Samuel: That is your conclusion, not mine. I do not call a person like that.

Adv Mpofu: Not you. I’m just being all society – the other 60 million of us. Do we also call that person a convicted criminal?

Mr Samuel: No, I do not.

Adv Mpofu: Have you ever heard such a term? Is it the first time you're hearing it today?

Mr Samuel: No, I've heard it. But it was not my term.

Adv Mpofu: I understand. It's not a term you approve of?

Mr Samuel: Yes.

Adv Mpofu: But you know if you are convicted of crime, you are a convicted criminal? As an attorney of the High Court of South Africa, I'm sure you are aware of that, correct?

Mr Samuel: I'm aware of that.

Adv Mpofu: The point I was really making was not so much this convicted criminal thing. It was that that crime was committed in the course and scope of your duties as part of the Public Protector. Or is it the Public Attacker?

Mr Samuel: The incident happened in the course and scope of my employment.

Adv Mpofu: Yes. You were supposed to protect the public, right?

Mr Samuel: Correct.

Adv Mpofu: You have been convicted of attacking a member of the public – a customer of the Public Protector. Are we still together?

Mr Samuel: Yes, we are.

Adv Mpofu: You can count? Do you know how to count from one to 10?

Mr Samuel: Are you asking me whether I can count? It sounded like a statement.

Adv Mpofu: Yes.

Mr Samuel: Yes, I can count.

Adv Mpofu: So, you said that when you assaulted Mr Seabi it was 2011?

Mr Samuel: When Mr Seabi attacked me in my office, it was in 2011 on 14 December. You are putting a conclusion. You are saying I said when I assaulted him. I denied that I assaulted him.

Adv Mpofu: I know you deny.

Mr Samuel: Yes.

Adv Mpofu: But according to the magistrate, according to the law, you assaulted him when you assaulted Mr Seabi, it was 2011?

Mr Samuel: The incident between me and Mr Seabi happened in 2011.

Adv Mpofu: And in 2017 the senior public prosecutor revived it?

Mr Samuel: That is correct.

Adv Mpofu: But yesterday you told us that it was revived nine years later. Didn’t you?

Mr Samuel: That was not my evidence.

Adv Mpofu: You never mentioned nine years?

Mr Samuel: I mentioned nine years in relation to me being charged for the internal disciplinary hearing, not the Magistrates Court. That one happened in 2017. But for me to be charged internally, amongst the charges that were levelled against me after I had lodged my affidavit with the Speaker, it happened nine years later.

Adv Mpofu: So it's even worse. Your charges were reinstated in 2017?

Mr Samuel: Correct, yes.

Adv Mpofu: And you were charged in 2020?

Mr Samuel: In the criminal court, in Magistrate’s Court, I was charged in 2017 when the charges were reinstated; but in the internal disciplinary hearing in the Office of the Public Protector, I was charged in 2020.

Adv Mpofu: Alright. Yes. That's exactly what I'm saying the charges were reinstated in 2017 and in the Public Protector's Office, you were charged in 2020?

Mr Samuel: Correct.

Adv Mpofu: Okay, so that's three years.

Mr Samuel: Yes, between the two.

Adv Mpofu: It's not nine years.

Mr Samuel: No, it's not.

Adv Mpofu: Okay, you can count. Let's cut to the chase here, what you were really suggesting was that the Public Protector that participated in your being charged as a form of some contrived thing. That's what you really wanted. The nine years was meant to convey that, ‘how can this happen, this happened in 2011 and nine years later I'm charged’. That's really what you wanted to convey. Let's just be honest about that. Correct? Or what did you want to convey about the nine years?

Mr Samuel: That issue of me being charged after nine years, was relevant in the disciplinary hearing and in the arbitration, which we are now settling. My reference to the fact that I was charged after nine years was in relation to the other charges that were levelled against me, chief amongst them being the fact that I had written to the Speaker to ask for an investigation. That was the context within which I was making reference to that. It is a fact. I was charged internally after nine years.

Adv Mpofu: Is that your final answer?

Mr Samuel: That's my final answer.

Adv Mpofu: Can you answer my question? I'm saying to you that what you wanted the Committee to believe is that you're being charged was so outrageous, the conduct of the Public Protector, because the incident had happened in 2011 – omitting deliberately the fact that actually the incident had just been revived by the prosecution services three years before. The real gap between the revival and the charging was three years – a third of the period that you wanted the Committee to believe – if you were not being found out as you are being found out now.

Mr Samuel: The crux of my evidence around that issue is this. Yes, I’m making the point that in charging me in 2020, nine years after the incident happened, that conduct by the Public Protector was some kind of revenge in the sense that in 2020 I asked for an investigation into her conduct and how she is handling things in the Office of a Public Protector. It is on that same basis that this charge was kicked out in the arbitration because it did not happen in 2017. It happened in 2019. That is when it starts being counted, whether it was reasonable or not. The employer being the Office was aware of this incident because they came to know about it on the same day when I reported it to the CEO. The delay was in charging me about that. That was what was found to be outrageously long. If you want to confine it to the day that I was found guilty in 2017, that is not the date that this incident started. The issue is when did the incident occur.

Adv Mpofu: That's the issue for you. I'm saying that the reason you mentioned that you just said something now, let’s just tie that down, you are saying that the employer was presumed to know your thing started in 2011 because the records are there, obviously?

Mr Samuel: Not presumed. The employer knew from 2011.

Adv Mpofu: No. I mean presumed in the sense that whether they knew actually or presumptively in terms of the loss – the same thing. In other words, Adv Mkhwebane, “who was the employer”, knew that your incident happened in 2011?

Mr Samuel: That is not what I just said. To be clear, Adv Mkhwebane or any incumbent at any stage is not the employer; it is the Office that employs me.

Adv Mpofu: I see. Thank you for the education. That's fine. Now answer the question. I'm saying the Public Protector knows that the incident happened in 2011? Or should know because the records are there? Is that what you are conveying?

Mr Samuel: That's correct.

Adv Mpofu: Yes, but yesterday you wanted us to believe that the knowledge by Adv Mkhwebane of that fact was because she was a spy?

Mr Samuel: Around that issue, I said that was our observation as members of staff, that she could only have come to know about that because of the fact that she worked for the State Security Agency (SSA). I never said she was a spy. All I said was because of her background in the SSA. If people that work for the SSA are spies, that's not my conclusion.

Adv Mpofu: That's fine. That's not the issue. I'm saying let's not get diverted. The impression you wanted this august body to go home with was that the knowledge which you have now acknowledged comes from the mere fact that she's the Public Protector, the boss; you wanted to convey to this Committee that she acquired that knowledge because she worked for the SSA?

Mr Samuel: That is not what I said, and that is not what I'm saying I want. I said our view at the time was that…

Adv Mpofu: Who is our? Who is we?

Mr Samuel: Me and my colleagues that she made these comments to.

Adv Mpofu: Please confine it to you, if you don’t mind.

Mr Samuel: So my view was that she could only have come to know about this incident probably because she had worked at the SSA. The SSA, my understanding is that they work with gathering evidence and intelligence. As I said, if you recall, I said it is information that could not have been included in the handover report by Adv Madonsela. Or she knew about it. It was not, because I have seen the handover report.

Adv Mpofu: I can see the novel already. That's fine. That's all interesting but the point I'm making to you is a much simpler one. I'm saying that you don't believe that she could have acquired that information from another colleague, Human Resources, whoever was there before the time. She knew that information because she worked for the SSA. Really?

Mr Samuel: As I said, at the time that was my belief. If it was not, it was not – she could have acquired it from any other colleague because they knew about the incident. But it was my belief at the time; that is why I said so.

Adv Mpofu: Now at this time, what is your belief? Is it because of the SSA?

Mr Samuel: I have not heard any information or evidence that refutes that belief. So, it's still possible that it still is. It is possible that she might have acquired it when she was at the SSA.

Adv Mpofu: I think your attack on Mr Seabi [2 minutes missing from recording].

Mr Samuel: To get the job. You will most probably want to know who you're going to work with or what is the institution – you’d want more information, maybe to be up to speed about what happened since you left, as in her case for me, that would be natural, that would make sense. I would also do that. I did not, in any way, insinuate that she is a spy by so doing.

Adv Mpofu: I apologised to you a long time ago for using the word spy. I’m using SSA now. I'm saying, in other words, what you now want us to believe, or want the Committee to believe rather, is that Adv Mkhwebane, when she was applying to become the Public Protector, went to the SSA and gathered information about people who are working there. And one of the SSA agents told her that Mr Samuel assaulted a Mr Seabi in Limpopo. That's what you're telling us?

Mr Samuel: That is not what I'm saying. That is not what I said.

Adv Mpofu: What is it that you’re telling us?

Mr Samuel: I said she might have acquired that knowledge while she was working for the SSA. As to how she got it, whether from someone or she acquired it herself, I don't know. I've just alluded to the fact that if I know that I'm going to work for a particular department, or the chances are good following an interview that I'm going to work for that department, I would research enough or even prepare for the interview enough for me to be able to demonstrate knowledge of who I'm going to work with, about that institution and so on. That is the same credit I would give her. It was perfectly within her means to do that.

Adv Mpofu: The other thing that revived this incident is that Public Protector South Africa was being sued by Mr Seabi. You are aware of this?

Mr Samuel: Yes, I'm aware because I was also being sued in the same case as the second defendant.

Adv Mpofu: Second respondent?

Mr Samuel: Second defendant.

Adv Mpofu: Even in the Regional Court, you are the second respondent, and the first respondent was Public Protector of South Africa.

Mr Samuel: You are referring to a separate action or?

Adv Mpofu: I’m talking about the Regional Court matter which you signed on 28 August 2018.

Mr Samuel: I am the second defendant.

Adv Mpofu: No, I can read.

Mr Samuel: When you say respondent, you might be referring to an application.

Adv Mpofu: Yes, it is an application. 'In the matter between Seabi Nchaupe Peter, Applicant, and Public Protector of South Africa, First Respondent, Sphelo Hamilton Samuel, Second Respondent’, that's what it says.

Mr Samuel: Yes, the heading might reflect that, but I've never been served with papers to go and respond to any application that might have been brought. I’m only defending the action where I’m being sued for R350 000. Anything else, I was not served those documents.

Adv Mpofu: Who were your attorneys? Nkuna Attorneys were your attorneys?

Mr Samuel: Yes.

Adv Mpofu: Okay, well, they received this, but that's not the issue. The issue is you are aware that Mr Seabi was suing the Office of the Public Protector or the Public Protector, by the way, we'll come to that distinction, and you for R350 000, right?

Mr Samuel: Yes, I’m aware.

Adv Mpofu: That revived this matter, at least in the eyes of the Public Protector? They didn't need the SSA. They were served with papers, correct?

Mr Samuel: That's correct.

Adv Mpofu: Now, once that happened, the Public Protector was in jeopardy jointly and severally with you of paying R350 000, correct?

Mr Samuel: That's correct.

Adv Mpofu: And therefore, that high amount of money would be something of interest to the Public Protector, correct?

Mr Samuel: That is correct.

Adv Mpofu: The Public Protector has the right, therefore, to find out what is this all about? Let's assume she was not a spy.

Mr Samuel: That is correct. What I was about to say, as she did through the relevant managers.

Adv Mpofu: So you accept that this had nothing to do with the SSA?

Mr Samuel: From that point of view, I accept that.

Adv Mpofu: Thank you. That's the value of cross examination because without cross examination, this Committee and the whole nation would be left with the impression that that's how she acquired the knowledge. Do you understand that?

Mr Samuel: Yes, I understand it, but as I say, I did not have any information of how she acquired it. That is why we drew that, or I drew that.

Adv Mpofu: The whole counsel knows that now. I'm just saying, when I say cross-examination, it's like jazz you must listen and sit back and not interrupt it and appreciate its art. Now that we know that there was this issue, do we accept the fact that the matter was then revived, was the terminology we have used, may, and I won’t put it higher than that, may actually be for a legitimate reason? Not because of your intellectual powers or because of some vendetta against you? I accept that's what you thought but do you accept there may have been a genuine reason to pursue the matter?

Mr Samuel: Could you please rephrase or repeat the question?

Adv Mpofu: Rephrase it better so that I don’t have to do it word for word. I’ll shorten it to make it easier. Do you accept that there may have been a legitimate reason for the Public Protector to revive the matter culminating in the charges against you?

Mr Samuel: Yes.

Adv Mpofu: Alright.

Mr Samuel: If I may just qualify my last answer. Yes, there may have been a legitimate reason for her to revive the matter but that is not what happened. My belief is that it only happened because I had lodged the complaint against her with the Speaker. That is my evidence.

The Chairperson noted that it was 15h00 and that he had indicated in the morning that he would re-examine the time for Adv Mpofu at 15h00. He would extend Adv Mpofu’s time until 17h00 and push back the Members' questions to the next morning.

Adv Mpofu said that for what it was worth, he would not finish at 17h00.

The Chairperson said that Adv Mpofu would have to prioritise.

Adv Mpofu said that he would not finish at 17h00 and might not even finish the following day.


Cross examination continued
Adv Mpofu: Apart from the assault story that we have dealt with, which was just one of the charges, I'm sorry, that's confusing. When I talk about the charges now, I'm talking about the disciplinary charges against you. Excuse me, we are not talking about the criminal matter. The first charge that you were found guilty of was that you displayed an improper and disgraceful and unacceptable behaviour towards Mr Seabi, correct?

Mr Samuel: Disciplinary hearing, yes. Correct.

Adv Mpofu: We’ll jump the one of assault. The third charge was that you brought the name of the organisation into disrepute, for obvious reasons. Correct?

Mr Samuel: That was the third charge, yes.

Adv Mpofu: The next one was non-compliance with the grievance procedure. That had to do with your so-called initial statement, which you sent to Parliament instead of raising it within the prescripts of the grievance procedure, right?

Mr Samuel: That is correct.

Adv Mpofu: Next one was failure to comply with PPSA policy. That procedure within the organisation dictates that you should’ve raised that matter internally.

Mr Samuel: I accept that's what the grievance procedure says but I need to qualify that the grievance procedure is applicable to employees of PPSA and the Public Protector is not an employee of the organisation.

Adv Mpofu: But you are?

Mr Samuel: It is not applicable to her.

Adv Mpofu: That’s fine. But you are an employee?

Mr Samuel: Yes, I am.

Adv Mpofu: It's applicable to you?

Mr Samuel: Yes, it is.

Adv Mpofu: Thank you.

Mr Samuel: Let me just add, in relation to my grievance, now that we're using that term, that I could not have raised it with the Public Protector because she was the subject of what I was complaining about, and the fact that it is not applicable to her, as she's not an employee of the PPSA.

Adv Mpofu: No I understand. That’s very impressive. Surely you don’t mean that when employees of the PPSA have a problem with a Public Protector, the only way they can deal with it is to do what you did, just write to Parliament?

Mr Samuel: I cannot answer for other people, but for me, yes, that's what I saw fit. I still believe I was right. And in fact, in arbitration, I think you were asking me now during this session that I was found guilty. I don't know whether you're going to get to the part that, eventually, in the arbitration, I was found not guilty because that guilty finding at the disciplinary hearing happened in my absence. I could not cross examine witnesses, I could not place my version, and so effectively, I could not test that because it happened in my absence, they simply took the shortcut and led evidence, which was not tested, and that's how I was found guilty. This was all reversed on arbitration.

Adv Mpofu: I didn't say anything about guilty.

Mr Samuel: You did. You said I was found guilty on those charges.

Adv Mpofu: I said you were charged. You were found guilty, but I said you were charged.

Mr Samuel: I don’t want to enter into that dialogue but you did. I noted that.

Adv Mpofu: You’re right; let's kill the debate. You were found guilty by Adv Mhambi of these things, correct?

Mr Samuel: Correct.

Adv Mpofu: So the next one was an alternative to charge five, misconduct and communication policy. This is when you went around speaking to Radio 702 about the Public Protector. Is that also because she's not an employee? You think you had the right to go to the radio and disparage her?

Mr Samuel: I was not found guilty of that. I was not found guilty on the alternative charges by Adv Mhambi. Insofar as I went around and spoke to the media, yes, I did. But that was in relation to the affidavit that I sent to the Speaker that they wanted to interview me. I was charged for engaging with the media, in violation of the communications policy, but my defence then and now is that I was not speaking on behalf of the Office. It is only an offence if I was speaking on behalf of the Office. The person that was speaking on behalf of the Office was Mr Oupa Segalwe, not myself.

Adv Mpofu: So this is how you want to get away from these things, by these technicalities? She's not an employee, and therefore, you can bypass the grievance procedure. You can speak to the radio because you’re not speaking on behalf of the company. Really, do you think an employee should be allowed to go and speak about their employer on national radio or regional radio, whatever this is, based on those technicalities? A senior person like you?

Mr Samuel: What I was asked about in the interviews was the content of my affidavit. And I confirmed. My interviews related only to confirming that I was the author and the contents I drafted and so on.

Adv Bawa: We have two disciplinary proceedings – a disciplinary proceeding before an advocate, and then we have an overturned CCMA where the witness was exonerated and the charges were set aside. I want to raise 6(1) and 6(2) of the directives as to the relevance this has to the motion.

Adv Mpofu: Well, there are two relevancies. One is it goes to the credibility of this witness. The second one is that it goes to the extent to which Adv Mkhwebane has been abused by all and sundry here, including this witness, who has now just told us from his last answer that he was going around doing radio interviews to confirm the statement that says Adv Mkhwebane is intellectually challenged.

Mr Samuel: I just need to correct, Adv Mpofu. I did not go around…in those interviews, I was never asked about whether Adv Mkhwebane is intellectually challenged. I was only asked about whether I was the author of the affidavit and the letter and whether I stand by the contents. But specific questions that were put to me that I responded to, never touched on what he is suggesting.

Adv Mpofu: Fair enough. You confirmed the contents of the affidavit?

Mr Samuel: Yes, I did.

Adv Mpofu: And the contents of the affidavit is where you say that she lacks intellectual knowledge?

Mr Samuel: Correct.

Adv Mpofu: And your explanation for that is that she was the boss, correct?

Mr Samuel: To the extent that she's the head of the institution that employs me, yes.

Adv Mpofu: No, I was asking you then at a general level. Do you think that any institution should accept that one of its employees goes around saying about their boss that they lack intellectual know-how, and all the things that we’ve already gone through? That such a person should just get on some technicality that says 'no, I was not speaking on behalf of that'? Do you think it makes it better if you are speaking on your own behalf?

Mr Samuel: Speaking for myself, and this was also confirmed by the ruler, the commissioner in the CCMA, that any criticism or any dissatisfaction or criticism I levelled against my boss, in the absence of any insult, is actually exercising my right to express my grief.

Adv Mpofu: Thanks, I'm glad you put it that way.

Mr Samuel: And that should not be curtailed simply because I'm an employee, and so I must not voice…

Adv Mpofu: Voice, you refer to section 16 of the Constitution?

Mr Samuel: Correct.

Adv Mpofu: No, that’s not what I'm asking you. I'm saying; fortunately, you have just answered yourself. Do you accept that section 16 of the Constitution, which gives you the right to expression, does not extend to insult?

Mr Samuel: Yes, I do.

Adv Mpofu: And in your estimation, that statement you made about the status of Adv Mkhwebane’s intellectual knowledge, does not amount to an insult?

Mr Samuel: No, it does not.

Adv Mpofu: Why?

Mr Samuel: It is an observation I made; it was not meant to...I was not attacking or insulting her. It’s just an observation I made from her conduct.

Adv Mpofu: Do you know why this Chairperson was trying to stop me from referring to intellectual knowledge until I revealed that it was from your statement? It’s because his instinct was that I was insulting you.

Mr Samuel: If my recollection serves me well, you were labelling me as a convicted criminal. My recollection is that he was objecting to that, and because I had objected to that, he was protecting me from you repeatedly saying that.

Adv Mpofu: That's fine. That's a separate incident, there are many incidents here. Okay, let's not be distracted. Your final answer is that you don’t think that statement of yours contains insults?

Mr Samuel: No, I don't.

Adv Mpofu: Do you know that insulting the Public Protector is another crime?

Mr Samuel: Yes, I do.

Adv Mpofu: You’ve read section 9 of the Public Protector Act?

Mr Samuel: Yes.

Adv Mpofu: It's the same as insulting a judge.

Mr Samuel: I would like that specific section to be put up.

Adv Mpofu: Section 9?

Mr Samuel: Yes.

Adv Mpofu: Okay, it's actually section 9(1)(b).

Mr Samuel: You're reading restrictively and it's a whole section.

Adv Mpofu: It's more expansive than that?

Mr Samuel: Yes. If I may just expand on it. It says it makes it an offence for anyone to insult the Public Protector in the course of an investigation.

Adv Mpofu: In connection with?

Mr Samuel: In connection with an investigation, yes.

Adv Mpofu: Bur insofar as it is a crime to insult the Public Protector in connection with an investigation, that crime is treated as if that insult was directed to a judge, correct?

Mr Samuel: That's correct.

Adv Mpofu: But you were charged, again, for contempt of the Public Protector, and then disclosure. Put up section 9(1)(a) then 9(1)(b). So, you are talking about ‘in connection with an investigation’. You were saying 'in the course of’ and I corrected you 'in connection with an investigation do anything, which if the said investigation had proceedings in a court of law, would have constituted contempt of court.’ In other words, if she was a judge, that would be contempt of court.

Mr Samuel: Yes, but the reason why I don't consider myself to have insulted her, and that is what the commissioner also agreed with, was that my conduct did not fall into that category. There was no investigation that she was busy with when I made that.

Adv Mpofu: Another technicality to escape – you can insult her if there is no investigation, in your estimation?

Mr Samuel: I did not insult her.

Adv Mpofu: But see, you are emphasising. You are not saying you did not insult her; you are saying that you insulted her but not in connection with an investigation.

Mr Samuel: I did not insult her. As contemplated in that section, I did not insult her.

Adv Mpofu: Okay. Well, you are wrong about that. Because you were charged and what you've just said applies to 9(1)(b), correct?

Mr Samuel: That's correct, yes.

Adv Mpofu: But you were charged with offending 9(1)(a), correct?

Mr Samuel: Correct. But Adv Mpofu, you are reading that whole section. You are reading (b) in (a). It is an extension of that.

Adv Mpofu: Let me explain to you, and I don’t want to, I’ve battled this in court. I'm saying to you, you were charged under section 9(1)(a). Yes, or no?

Mr Samuel: Yes, it was.

Adv Mpofu: Okay. It says, ‘in February you intentionally and negligently approached or permitted yourself to do interviews and television broadcasts … with the intention of making derogatory and disparaging remarks about the Office of the Public Protector of South Africa, its leadership, and the Public Protector, Adv Mkhwebane, and the manner in which you conducted yourself was solely meant to be contemptuous towards the Public Protector, Adv Mkhwebane, thereby contravening the provisions of section 9(1)(a) of the Act referred above’, correct?

Mr Samuel: That was the charge. It did not necessarily mean that was a fact. It was never proven.

Adv Mpofu: No, sir. Correct. Work with me here. I'm saying you were charged with 9(1)(a).

Mr Samuel: Yes, I was.

Adv Mpofu: 9(1)(a) has got nothing to do with all these escape routes that you're trying to design. It says, 'No person shall insult the Public Protector or Deputy Public Protector.’ That's it.

Mr Samuel: Yes, that's what (a) says.

Adv Mpofu: So it's got nothing to do with investigations?

Mr Samuel: I am not going to pretend to be an expert in legislative drafting but I do have a certificate in legislative drafting. The reason why there's that semicolon, there's a reason. It's because that's not the end of the sentence or else there would be a full stop. It goes on; it means, sorry, I can only think of the Latin maxim, you must read the whole section, it is part of the same thing, ejusdem generis. It’s part of the same thing.

Adv Mpofu: Okay, that's fine. I will leave that because it's interesting, but it's not directly relevant to this. What you're saying is syntactically incorrect. There's no such English sentence that can say, ‘No person shall insult the Public Protector or Deputy Public Protector in connection with an investigation do anything which. What is that? You can’t have two verbs but never mind.

Mr Samuel: The commissioner agreed with me.

Adv Mpofu: Never mind, no, that's fine. At least for the purposes of this Committee, do you accept that you were charged with 9(1)(a)?

Mr Samuel: Yes.

Adv Mpofu: Which talks only about insulting the Public Protector.

Mr Samuel: Yes.

Adv Mpofu: So if you can show that the contents of the statement were insulting to the Public Protector, you would be guilty under 9(1)(a). Maybe?

Mr Samuel: If that is proven. I denied that.

Adv Mpofu: I know you denied it. Then you would be a convicted criminal again, and it would be under section 11?

Adv Bawa: I don't want to interrupt you. But we are now retrying the proceedings before the CCMA and coming to a finding of guilty and saying then you'd be a convicted criminal again. I don't think that's a fair approach to be taking with a witness.

Adv Mpofu: Witness has just answered. I don't know what's happening now. The witness just said yes, if that was shown, he would be guilty.

Mr Mileham: Could I just get clarity, and I'm not sure who to ask, as to whether or not they were criminal charges in terms of section 9(1)(a) brought against Mr Samuel? I'm just trying to get clarity because that would then go to what Adv Mpofu has just said, that he is then a criminal again.

Adv Mpofu: I never said that. I choose my words carefully. I said, 'you would.’ Now you're changing it to ‘is’. Please don't put words in my mouth.

Mr Mileham: That's why I asked for clarity. I'd appreciate it if Adv Mpofu would just hold himself back a little bit and remember that we are a committee of Parliament, and we are entitled to ask these questions.

Adv Mpofu: I'm also entitled to answer them.

Mr Mileham: With respect. I just want to know if these were criminal charges in terms of section 9(1)(a) and section 11 of the Act.

Mr Samuel: There were no criminal charges laid against me in terms of any of those sections. I was only charged internally in the internal disciplinary hearing.

Adv Mpofu: Chairperson, I'm raising an order. I object to this. The directives are here, you are the chairperson, chair us. The directives say that Members may only ask a witness after the cross-examination. Mr Mileham cannot ask the question to a witness. That's why I was giving him leeway to say ask me and he doesn't want to. He asked the witness. He’s breaching your rules, and I cannot allow it to happen.

Chairperson: I hear your point. The Members are not on questions now. It's a point of clarity. In any of the situations, whether it's done by the evidence leader or yourself, if there's clarity sought, I can't hold back.

Adv Mpofu: On the witness?

Chairperson: Yes, I can do that as a chairperson, to say is this what you're saying in terms of clarity – that's not a question. We respect that the evidence leader is still on the stand and that there shouldn't be any train smash on seeking clarity on any issue.

Adv Mpofu: I accept that from you, but I didn’t know there's a deputy chairperson.

Chairperson: No, don’t go there. There's no deputy chairperson. There's one chairperson. Let’s proceed.

Adv Mpofu: Alright. Mr Samuel, I accept, just for your own comfort, that you were not criminally charged with section 9(1)(a) let's just be clear on that. That's why I use the word ‘would’. I was saying, if you were, I think you and I were moving along quite nicely if you had been charged of section 9(1)(a), and for a minute, assume that and I know there's a debate between you and me about the interpretation of the section, but just indulge me, if you accept my version, that would then make you guilty of an offence under section 11. I’ll just leave it at that.

Mr Samuel: That would be the charge which still needs to be proven. If it was proven that I'm guilty of it, yes, I would be guilty.

Adv Mpofu: Yes, you did say that in fairness. The next one was contravention of the Protection of Information Act read with declaration of secrecy. Remember that?

Mr Samuel: That's correct.

Adv Mpofu: The other was inciting fellow employees to participate in an unprocedural act. That is the one about you campaigning or canvassing other employees to join you to ask for the resignation of Adv Mkhwebane, correct?

Mr Samuel: That was the charge but I deny what it says.

Adv Mpofu: Okay. Which part do you deny? You did call for the resignation of Adv Mkhwebane?

Mr Samuel: I did. But in relation to fellow employees, all I said was that they too have information. That if they want to, they can come forward and not complain to me because I had come out as they were talking to me. That is what I meant. I was not inciting them. I was only saying they can come forward.

Adv Mpofu: You were asking them nicely. Okay, let's take it step by step. Let's forget about the other employees. You alone called for the resignation of your boss, correct?

Mr Samuel: Correct. Yes.

Adv Mpofu: So that's the kind of employee that you are. Have you ever heard of such a thing as an employee going public to call for the resignation of their boss? What must happen?

Mr Samuel: I was not instructing her to resign. I was asking her to resign. She could easily refuse.

Adv Mpofu: That one. Have you ever heard of such a thing? Asking nicely in public for your boss to resign? What is that?

Mr Samuel: Yes. I have heard about it.

Adv Mpofu: Where?

Mr Samuel: Here. Most of the time against politicians. They are always told to resign, even by people that work for them in the department

Adv Mpofu: Oh I see. You are a politician?

Mr Samuel: No, I'm not.

Adv Mpofu: Okay, apart from politicians, have you ever heard of it?

Mr Samuel: If you take a Minister or an MEC who's in charge of, let's say COGTA, and a manager or any employee in that department asks him to resign.

Adv Mpofu: Have you heard of such?

Mr Samuel: Yes, I have.

Adv Mpofu: Are you being serious?

Mr Samuel: I'm being serious.

Adv Mpofu: Okay. Let's assume you have heard of such. Apart from politicians, have you ever heard of an employee calling for their boss to resign on a radio station?

Mr Samuel: I don't quite understand the question. Sorry, the last part. Have I ever heard of an? Would you just add the last part to the question?

Adv Mpofu: It’s the same question that you understood when you gave me the example of the politicians. I'm saying now, apart from the politicians, have you heard of a situation where an employee goes to a radio station or a public platform and calls for the resignation of her boss?

Mr Samuel: No, I have not.

Adv Mpofu: You are the first?

Mr Samuel: I'm not going to say I'm the first. I may not have heard anyone say that but that doesn't necessarily mean that I'm the first.

Adv Mpofu: It doesn't necessarily mean that but it might mean that. It means nobody has ever done what you did in the history of mankind.

Mr Samuel: No, I cannot agree to that.

Adv Mpofu: I accept that you are going to say ‘necessarily’; you are saying you haven’t heard of everything, like all of us. But I'm saying then it's possible that it was the first time that it has been done?

Mr Samuel: It's possible, yes.

Adv Mpofu: I’m sorry, I was just talking to the Public Protector. What was the answer?

Mr Samuel: I said it's possible because I may not have heard of anyone.

Adv Mpofu: Yes. That's fine. Thank you. A person who has done the things that you've admitted to here, you would agree that a person like that should not be seen anywhere near our Public Protector’s Office? Just as a general statement?

Mr Samuel: No, I don’t agree.

Adv Mpofu: You don’t agree?

Mr Samuel: Yes.

Adv Mpofu: Okay, but if the shoe was on the other side, if you were the Public Protector, as you might aspire to, and someone did that and then they went to the CCMA and they were exonerated, as you put it, would you take that award to be reviewed by the Labour Court? Or do you just gladly accept such a person back into the ranks?

Mr Samuel: Firstly, I don't aspire to be the Public Protector.

Adv Mpofu: I apologise.

Mr Samuel: Assuming that you say if I were in that position?

Adv Mpofu: Yes, just assume without any aspiration.

Mr Samuel: If I were in the position, I would not take that personally; it would be his or her opinion.

Adv Mpofu: Maybe you didn't understand my question. I accept that. I'm saying, let's assume that has already happened, as in this case it's an example but it's based on these facts here. I’m saying if the person was dismissed wrongly, as you're saying, and at least in the view of the CCMA Commissioner, and then that person was reinstated, if you are now the employer and you've been insulted by this person on radio and all over and told that you're retarded, would you challenge that award or do you gladly just leave it at that? If I may add, when you are working for an institution as important as the Public Protector.

Mr Samuel: I would, out of respect for institutions like CCMA, the courts, I will allow that person back. That is a decision that was made by an independent institution looking at what I’m accused of, I would allow that person back.

Adv Mpofu: Yes, no, that's the legal thing to do. I'm asking you a different question. You can’t not allow the person because there's an award. I'm saying within the period that is allowed in the Labour Relations Act if you are the employer, would you challenge that award as irrational and reviewable? Or would you think it was a rational award to return such a person to their post?

Mr Samuel: I would accept the award as rational and allow the person to come back.

Adv Mpofu: Alright. You are a very kind man, Mr Samuel.

Mr Samuel: Thank you.

Adv Mpofu: It's a pleasure. You know that the Public Protector, part of her experience was that she was a prosecutor for the Republic?

Mr Samuel: My knowledge of that part of her life was that she was an aspirant prosecutor, not a prosecutor.

Adv Mpofu: That's where I'm going. That's what you call; that's another insult or at least mistake. If it turned out that she was not an aspirant prosecutor, but an actual prosecutor, would you accept that is maybe not an insult as such but a disparaging remark?

Mr Samuel: I don't think it would be a disparaging remark. If she was not an aspirant prosecutor and she proves that she was actually a prosecutor, I will accept my mistake. But it had nothing to do with insulting her. I'm saying that she was an aspirant prosecutor because I worked with her and my recollection is that is what she, at some point, was.

Adv Mpofu: I'm telling you now that she was the prosecutor, so are you prepared to apologise to her?

Mr Samuel: If she was a prosecutor, then yes, I made a mistake, and for that mistake, I will withdraw it. I will humbly apologise and say I'm sorry that I called her an aspirant prosecutor, when in fact she was a prosecutor. But I'm taking from you that she was.

Adv Mpofu: Even an apology comes with but, but that's fine. We'll take that one. We’ll take the best we can get. Are you also prepared to apologise to her for assaulting her intellectual abilities?

Mr Samuel: I don't believe I was insulting her when I was saying that. I don't see any reason why I should apologise.

Adv Mpofu: Okay, that's fine. Let's assume you were not insulting her. But would you forgive her for finding it belittling?

Mr Samuel: Yes, I would.

Adv Mpofu: Would you be prepared to apologise for belittling her?

Mr Samuel: Not if that was not my intention. You are asking me about how she would have felt or how she felt when I said it.

Adv Mpofu: Yes, and that's normally how you apologise.

Mr Samuel: If she internalised it as belittling her, I would accept that is how she feels. But not necessarily that I was in the wrong.

Adv Mpofu: Yes. No, let’s say you were in the right.

Mr Samuel: I would perhaps say it's unfortunate that she feels that way.

Adv Mpofu: Yes, and now that she feels that way, would you apologise to her because she finds it offensive? I accept you're saying you may not have intended it to land like that. But if she finds it insulting, belittling, demeaning, would you apologise to her?

Mr Samuel: Yes, I would. Of course, that was not my intention.

Adv Mpofu: Okay, so what are you waiting for? Can you do that now?

Mr Samuel: Adv Mkhwebane, I had no intention of belittling or insulting you and that is not the effect I have intended of what I said. It was borne by my observations and how you received it is unfortunate.

Adv Mpofu: Chairperson, if we were not late, I would ask Adv Mkhwebane to respond herself but she has asked me to respond on her behalf in that she accepts the apology.

Chairperson: Continue with your cross-examination Adv Mpofu.

Adv Mpofu: Thank you Mr Samuel. You’re, again, a kind person. Kinder than the Chairperson at least. Okay, now that that's behind us, we'll have fresh beginnings. You said that she has orchestrated a plan to destroy the PPSA. Do you still believe that?

Mr Samuel: Yes, I do.

Adv Mpofu: Now, you know what an orchestra is? We’re moving from jazz now. Orchestrated means that there were… Who did she orchestrate this with? This destruction of PPSA?

Mr Samuel: I mentioned that against the background that, when she came in, there were numerous senior managers and other lower ranked officials who had been with the Office for long. And she either forced them into resigning or removed them from their positions and replaced them with others that she appointed. Accepting your definition of an orchestra, that those are the people that she brought in to continue her plan.

Adv Mpofu: I see the other members of the orchestra were the people who were employed to replace those who left?

Mr Samuel: Correct.

Adv Mpofu: That's quite a serious accusation, that the Public Protector is a member or a leader of an orchestra whose intention is to destroy the institution. Quite serious stuff.

Mr Samuel: Yes, it is serious. I did not take it lightly when I made it. I have explained what I'm basing it on. I'm basing it on what happened before she came and what happened after she came.

Adv Mpofu: In this case, you were basing it on the fact that certain colleagues had been disciplined. Correct?

Mr Samuel: Amongst others, yes.

Adv Mpofu: And amongst those were the likes of Mr Kekana, the one who was peddling information that did not belong to him?

Mr Samuel: Amongst those was Mr Kekana. That’s where I will stop. I don't agree. I can’t talk to the other part.

Adv Mpofu: Again, I'm putting it to you that Mr Kekana was disciplined, and he admitted here before the Committee that he had used the information, which was sent to him mistakenly, and that he had been charged. Rather, let me paraphrase it like this, there was an email that was sent to him. It was not directed at him. He got the information and then he distributed it to other people intentionally. At least that's his version before this Committee. Again, I might just be paraphrasing one of his answers. But that's the gist. You get what I'm saying?

Mr Samuel: Yeah.

Adv Bawa: My recollection was Mr Kekana refused to deal with this aspect because he said it was subject to appeal and he didn't make the admission that he was peddling information.

Chairperson: What you are putting on the table is disputed, Adv Mpofu.

Adv Mpofu: Disputed by who?

Chairperson: Adv Bawa.

Adv Mpofu: Okay, well, that's fine. We'll play the evidence of Mr Kekana. I’ll find it. You can park that question. I'll ask you tomorrow.

Chairperson: You will ask him when you finish. I don't know about tomorrow; let's not go there.

Adv Mpofu: Okay. I'll ask when we finish. If it's midnight, it might be one minute to midnight. Sorry, it might not be tomorrow. Those that you were saying were being purged; some of them, like Mr Kekana, were charged with things like the one I've just described. Correct?

Mr Samuel: I am not familiar with the charges against them.

Adv Mpofu: How can that be? If you are saying people are being purged, surely if you saw an employee stealing a laptop or something and they get charged, surely you can’t say that person has been purged? The converse of that is that if you know that they are being falsely accused of stealing the computer but the real reason is that they are intellectual giants, then you can say they are being purged. How can you make the statement that the person is being purged when you don't even know what it is that they were being disciplined for?

Mr Samuel: The example you are giving me says if I saw someone steal, in that case, I would be a witness to the theft. I would say that that person can be disciplined or should be disciplined. But in this case, I was not a witness to Mr Kekana passing on information. I heard about it.

Adv Mpofu: When he was testifying?

Mr Samuel: Yes, and I heard about it even at the time.

Adv Mpofu: At least you heard it.

Mr Samuel: When he was testifying, I did not hear him say that. What I'm saying is that I heard him when he was testifying. Maybe that part I did not hear as I was not sitting there all the time but prior to that, I knew; I heard that within the organisation.

Adv Mpofu: Now that you know that he was charged with that, do you still believe that he was purged?

Mr Samuel: If I'm to follow the example of what happened to me, charges can be brought to purge a person. To that extent, I believe the same happened to him. If you eventually prove that what you're charging him with actually happened, it would justify that dismissal.

Adv Mpofu: Okay, and if he admits it?

Mr Samuel: That's also another example of you don’t then need to prove. He has admitted, yes. It would also lead to the same result.

Adv Mpofu: Okay, I think we are getting somewhere now. If I'm correct then, and this is still a matter of dispute between myself and Adv Bawa if I'm correct that Mr Kekana admitted or did not dispute that he had passed on information which did not belong to him, as a result of which he was disciplined, would you still hold the view that he was purged?

Mr Samuel: I’d prefer, in the light of the fact that there is a dispute, not to comment on that.

Adv Mpofu: Alright. The word ‘if’ means you are just dodging the question, but that's fine. I'll let you get away with that for now. We'll do it tomorrow. That's why I use the word ‘if’ Mr Samuel. You are a lawyer; you know exactly what I'm saying. But that's fine. The point I’m simply making to you is that are you prepared to consider at least that those people that you list as being purged to the extent that they were found by independent chairpersons to have committed the offences, that you might be wrong?

Mr Samuel: Not if they're challenging that finding of the chairperson.

Adv Mpofu: No, but that’s why I’m saying you might be wrong.

Mr Samuel: That's not the end of the end; it's not like they’ve admitted. I cannot really say that simply because the chairperson found them guilty that they were guilty. I would, in any event, be implicating myself in that because the person found me guilty and I deny that I was guilty and I was actually eventually exonerated. If I'm to use the same analogy, I cannot then assume that because they were charged and the chairperson found them guilty, they are in fact guilty – particularly if they are challenging that.

Adv Mpofu: You must listen to my questions carefully. I frame them in a particular way for a reason. I never said just because they were charged, they were guilty, which is what you're saying. I accept, for your edification, that if they are challenging the outcome, there might be two outcomes. Okay. It might be confirmed or it might be reversed, let's work together. Let's now assume if it's reversed, then you are right. Correct? But if it's confirmed that they committed those things, then I'm right, correct?

Mr Samuel: If that is the end of the process, yes. I would accept it.

Adv Mpofu: Right, and then those people in respect of whom those charges would have been made correctly so, and are confirmed up to the Constitutional Court, those people would not have been purged?

Mr Samuel: Yes, I will concede that.

Adv Mpofu: Now, when we go to your evidence about the cases, and I think we'll start with your favourite, the Vrede. Maybe let's wrap this up because it's some issue that Adv Bawa and I have agreed to deal with in a particular way. Let me get it out of the way. Mr Reginald Ndou, you remember him?

Mr Samuel: Yes, I do.

Adv Mpofu: Mr Ndou was the person who was assigned the Vrede investigation when you failed to carry it out, correct?

Mr Samuel: I did not fail to carry out that investigation. Mr Ndou worked on the report that I sent to him about the Vrede investigation. His role was not to reinvestigate or to investigate because actually, it was to quality assure before he passes it on. That is my understanding.

Adv Mpofu: No, I didn't say he had to reinvestigate. Everyone had to work on the work you had done. I'm saying it was assigned to him when you failed to deliver on it, or after you failed to deliver on.

Mr Samuel: I did not fail to deliver on that.

Adv Mpofu: Okay, that's fine. We'll come to that. For the purposes of the present question, is that Mr Ndou, in your narrative, who was also purged?

Mr Samuel: Yes, I believe so.

Adv Mpofu: You know that Mr Ndou was charged with sexual harassment?

Mr Samuel: Yes, I know that was a charge laid against him where I defended him.

Adv Mpofu: Well, you didn’t really defend him.

Mr Samuel: I was representing him.

Adv Mpofu: You were going to represent him, yes. Why did you not say that to the Committee?

Mr Samuel: It was not for me to say that. I believe they had talks with him and so he is at liberty to disclose that. It is not for me.

Adv Mpofu: You are right. I'm told he's going to be a witness, don’t worry. We get all sorts of witnesses here. He's going to come. You’re right. We'll talk to him but for your purposes, I'm saying again I’m going back to the theme that I was exploring with you. Now the only way, just at a logical level, you'll forgive me I'm also intellectually challenged, but even for me, the only way that you can conclude that Mr Ndou was being purged, is the same as saying he did not sexually harass anybody. In other words, if we accept that there was sexual harassment, then he was not being purged, just as a matter of logic.

Mr Samuel: I do not follow that question.

Adv Mpofu: Okay, I’ll break it down. Let's take two scenarios. One is that Mr Ndou did not sexually harass anybody but somebody cruelly fabricated that against him, then he was charged, and then he leaves the organisation. That's purging, I think you and I will agree if he was being falsely accused and yet he was innocent.

Mr Samuel: When you say charged, I want to understand. Just charged but not found guilty of what he's been charged for? In what sense are we saying this?

Adv Mpofu: It’s both because just charging is not purging. Purging is when the person leaves the door. I'm saying if he was charged and found guilty of sexual harassment, when in fact he was being falsely fabricated of such, that would amount to purging. That's classic purging, agreed?

Mr Samuel: Agreed.

Adv Mpofu: Yes. Now let's turn the coin on the other side. If actually there was a valid case of sexual harassment, and he was charged and he was found guilty, that is not purging. Agreed?

Mr Samuel: Yes, but that was not the case here.

Adv Mpofu: Okay, which part? Were you a witness to the alleged sexual harassment?

Mr Samuel: No, I was not. I've testified that an investigation was conducted by an independent firm of attorneys.

Adv Mpofu: What did they find?

Mr Samuel: They found that the allegations against him could not be proven. There was also a criminal case opened against him relating to the same incident and the Public Prosecutor declined to prosecute for lack of evidence. To that extent, I think it is unfair to portray that he actually committed this offence when it had not been proven against him. But he is going to speak on his behalf. I'm not. I'm just answering in relation to the proof that is required to prove that he did that. I'm not going to be the one here saying that he was guilty or not – it is not my duty.

Adv Mpofu: That's also not what I'm saying. You might be a kind person, but you're not a good listener. I'm saying to you, we worked together nicely when I was saying ‘if this was being fabricated’. I'm still in that world of ‘if’ but now I'm saying if, on the other hand, he had committed sexual harassment and he was charged and he was found guilty, then we cannot define that as purging because he would have had his just desserts?

Mr Samuel: Yes, I agree.

Adv Mpofu: Thank you. Mr Ndou was in charge of the Vrede investigation, at least up to the time that it has concluded the first time. I'm not talking about the reinvestigation.

Mr Samuel: To the extent that he was my line manager, both when I was in Limpopo and in the Free State, yes, he would have been the overall executive manager in charge of that investigation.

Adv Mpofu: Yes, no, and that is the evidence of Mr Kekana anyway, which was not disputed. According to Mr Kekana, that investigation was assigned to Mr Ndou and Mr Kekana and Mr Muntu Sithole and Mr Nditsheni Raedani. It might be something not to your knowledge, I’m just telling you that's the evidence before this Committee.

Mr Samuel: My understanding of their involvement was not to investigate. It was to quality assure the report that we had sent through as the Free State Office. They did not reinvestigate.

Adv Mpofu: Okay. That's fine. It's not important for the purposes of this. Mr Kekana’s evidence was that the report was quality assured by Mr Isaac Matlawe at the drafting stage. Then when he wanted Mr Matlawe to quality assure it at the final stage, Mr Matlawe was not here. No, no, that's the CIEX report. The Vrede report, according to Mr Kekana, was assigned to himself and Mr Sithole. As I said, you may have no personal knowledge. I won't hold it against you. I’m just saying that’s the evidence before the Committee. You don't have any reason to dispute that?

Mr Samuel: The information I have was that they were assigned to quality assure the report we had submitted.

Adv Mpofu: Okay, that’s fine. Then one of you is not telling the truth. That's fine. Doesn't matter. If my theory is correct, then Mr Ndou would have been the person basically responsible for the report to Head Office, to the Public Protector, correct?

Mr Samuel: Correct. Yes.

Adv Mpofu: Alright. That's fine. Let's not waste time on that because Mr Ndou is going to come here, I believe, to speak for himself. Have you read the Bosasa CR17 judgment?

Mr Samuel: A long time ago when it first came out.

Adv Mpofu: That's the last time you read it? If you nod it doesn’t record.

Mr Samuel: Yes, that’s the last time I read it.

Adv Mpofu: Okay. When on 7 July, about two or two weeks ago, you took an oath, ‘so help me God’, and included extracts from the CR17 Bosasa report, you were doing what? Lying under oath?

Mr Samuel: No, I was not.

Adv Mpofu: Sorry, can you say that louder?

Mr Samuel: I was not lying.

Adv Mpofu: Under oath?

Mr Samuel: Yes. I was not lying under oath.

Adv Mpofu: Yes, then the parts that refer to, sorry, Mr Samuel, you accept that you referred to the CR17 case in your statement?

Mr Samuel: Yes, I do.

Adv Mpofu: And you refer to paragraphs of where the things you are talking about are to be found?

Mr Samuel: That's correct.

Adv Mpofu: And you do that on 7 July? A couple of weeks ago?

Mr Samuel: Correct.

Adv Mpofu: And yet, the last time you read that judgment was a long time ago as you describe it, correct?

Mr Samuel: That's correct.

Adv Mpofu: So anyone reading your affidavit, which is a word for a statement made under oath, would be forgiven for assuming that you had read the judgment that you were swearing before God about? Correct?

Mr Samuel: That would be a reasonable assumption to come to.

Adv Mpofu: Yes, it would be a reasonable assumption, but that assumption that those people would be making would be false, correct? Or untrue? Maybe false is a strong word. It would not be the truth.

Mr Samuel: I can’t say that would be the case. I have confirmed that I have read the judgment, but not on the 7th as you want to confine me to. I said I read it before that.

Adv Mpofu: No, you didn’t say 'read it before'. You said you read it a long time ago.

Mr Samuel: Yes, a long time, that is before.

Adv Mpofu: Oh I see. You got me there. It could be 100 years, it’s still before. And when you refer to it in your affidavit, paragraph by paragraph, that person would then be correct to believe that you read it fairly recently? Not a long time ago, correct?

Mr Samuel: I can't confirm that.

Adv Mpofu: Pardon?

Mr Samuel: I can't confirm that what you're saying is correct.

Adv Mpofu: Maybe I must not... I'm talking about me now. When I read the affidavit, I got the impression that you read it recently because that's the impression that's given in the affidavit. And you've already said that my impression would be reasonable. I'm saying but then I would be completely wrong because you didn't read it recently.

Mr Samuel: Yes.

Adv Mpofu: And the impression that you wanted to convey is that you read it recently?

Mr Samuel: No. I did not want to convey an impression, there was no impression at all. I wanted to draw attention to the remarks made by the judges, hence I went into those paragraphs.

Adv Mpofu: Yes, sir, but I'm saying somebody who has not read the judgment recently, unlike me, would not be able to tell you what is said in which paragraph? You must accept that as a lawyer.

Mr Samuel: I said that would be reasonable for the person to think that but not necessarily true because that's not what happened.

Adv Mpofu: I'm sorry. What did you say?

Mr Samuel: I said it would be reasonable for a person to think that, but not necessarily true because that's not what happened here.

Adv Mpofu: Yeah. Now, Mr Samuel, I'm saying that you falsely, let me just put it crudely, you falsely gave the impression in your affidavit that not only have you read the judgment recently, but you were able to quote specific paragraphs and name those paragraphs. I'm saying that impression was a false impression. That's all I'm saying. It's nothing more than that.

Mr Samuel: I deny that.

Adv Mpofu: It was a true impression?

Mr Samuel: It was not an impression. I was quoting the paragraphs that made me make reference in my initial affidavit to the reasons why I asked the Public Protector to resign.

Adv Mpofu: Yes, I know what you're doing. But I'm saying that when you were doing that, you can't, okay, I forgot you are a genius, was that from memory that you were quoting those paragraphs?

Mr Samuel: No, it was not.

Adv Mpofu: It was from that because you read it a long time ago?

Mr Samuel: I did not, when I was drafting or preparing for that affidavit, for the supplementary affidavit, I did not have access to those cases. I requested the official that was assisting the evidence leader to go and extrapolate those paragraphs because that's what I had referred to in my initial affidavit.

Adv Mpofu: Pardon?

Mr Samuel: I'm saying in preparation of this affidavit, I requested the official who was assistant to the evidence leaders, to go to the exact cases and extrapolate the paragraphs that I was referring to when I said to Adv Mkhwebane she must resign, that made reference to the remarks by the judges. That is the assistance I got.

Adv Mpofu: I see those parts of your affidavit were not from you? They were from the evidence leaders?

Mr Samuel: I had requested them to, yes, go and quote them. That was my request in all fairness; they were from me because that's what I asked them to do.

Adv Mpofu: Sorry Mr Samuel. The references, even by paragraph, to parts of the CR17 Bosasa judgment could not have been from you because you only read this a long time ago. They must have come from the evidence leaders or those working for them. Correct?

Mr Samuel: I have conceded to that, yes.

Adv Mpofu: Pardon?

Mr Samuel: I agree.

Adv Mpofu: Thank you. Is that the same for the references to the CIEX case?

Mr Samuel: That is correct.

Adv Mpofu: Is that the same for the references to the Vrede report case?

Mr Samuel: That is correct.

Adv Mpofu: Is that the same for the references to the Financial Services Conduct Authority case?

Mr Samuel: That's correct.

Adv Mpofu: That's the core of your affidavit, as I said this morning, is your reference to what you call the scathing remarks made in those four cases, correct?

Mr Samuel: That's correct.

Adv Mpofu: So now we know that you are a phantom witness in the sense that what is contained in your statement, as I said earlier, is not from you. It could have been anybody sitting there – Mr Themba Khumalo. Because all you have to say, ‘is this the judgment?’, ‘Yes’, and we sit here the whole day, R1 million a day, according to one of the Members here. Do you listen to that?

Mr Samuel: I signed this affidavit and I stand by the contents. How the contents have come about was by my direction, that I'm prepared to stand for.

Adv Mpofu: If the evidence leaders misquoted a paragraph in the CR17 Bosasa judgment, you would still have signed it?

Mr Samuel: Yes, I would still have signed it.

Adv Mpofu: If they misquoted another paragraph in the CIEX judgment, and so on, you would still have signed it and say, ‘so help me God, the contents of this affidavit are the truth’, correct?

Mr Samuel: That is correct, because I believe that what they had quoted there was exactly what was in the in the court cases.

Adv Mpofu: You believe that?

Mr Samuel: Yes.

The Chairperson said that the Committee would pause there for the day. As he had indicated, the Committee would finish the following morning with questions from Members and from lunchtime, the Committee would finish up with the witness.

The meeting was adjourned.

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