The Section 194 Committee sat for the 11th day of its hearings into Public Protector, Adv Busisiwe Mkhwebane’s fitness to hold office. As indicated by the Chairperson the previous day during Mr Sphelo Samuel's cross examination, Committee members were today allowed to put their questions to the witness during the first half of the meeting despite Adv Mpofu not completing his cross examination. During the proceedings, certain Members, as well as Adv Mpofu, argued that the Committee Chairperson had not been fairly administering the hearings. Adv Mpofu, particularly, took issue that the Committee began with questions from Members for the witness; rather than allowing him to continue with his cross-examination of Mr Samuel.
The Chairperson countered, highlighting that he made it clear the previous day that the Committee would start today with Members interacting with the witness. He reminded Adv Mpofu that, as in any inquiry, there were timelines to complete such a process and all had to respect these.
In reply to Committee questions, Mr Samuel testified that Adv Mkhwebane had replaced senior managers in Office of the Public Protector (OPP) with officials from her previous employer, the State Security Agency (SSA). He alleged that many of these officials were not qualified for their positions. Further, Mr Samuel stated that Adv Mkwebane recklessly pursued litigation to defend her reports, without considering the prospects of succeeding.
In the second half of the hearing, Adv Mpofu, representing Adv Mkhwebane’s legal team, cross-examined constitutional expert, Mr Hassen Ebrahim, on the separation of powers and the functions, powers and role of the Committee and Public Protector. Mr Ebrahim did not agree with Adv Mpofu's contention that the parliamentary inquiry could disregard court judgments because of the separation of powers. Mr Ebrahim made the point that the moment a country has less regard for the judgments of its courts, the constitutional democracy is in trouble. "We should be cautious of not treating a judgement of a court with the seriousness that I believe it deserves in terms of the concept of the rule of law".
The Chairperson welcomed Members present in Parliament Room M46 and those on the virtual platform; the Public Protector and her team; Adv Mpofu; evidence leaders Adv Bawa and Adv Mayosi; the witness, Mr Samuel; members of the public on all platforms and the media. The day before, he had said that he would set aside this morning, so Members can interact with the witness. He asked Members to indicate their readiness to interact with the witness.
Questions by Committee Members
Chairperson: In the virtual, we are looking for your hands: Hon Mileham, Hon Herron, Hon Mananiso, Hon Sukers, Hon Hendricks, Hon Gondwe, Hon Hermans, Hon Tlhape, Hon Zungula, Hon Peters, Hon Maotwe, Hon Skosana, Hon Maneli. Those are the hands I have. I am not expecting any provocation. I’ll stay with those hands. Thank you very much. I think just before I give to the first… that style you started last week, seems to be more effective and working, where you don't just park a lot of questions, but you throw in and get a return of service from the witness. I would appreciate that. So that we don't park questions. When I give your time, it is your space. Hon Mileham?
Mr K Mileham (DA): Thank you Chairperson. Good morning, Mr Samuel. Good morning to the panel. And good morning to everybody else present. Mr Samuel, can you give us a brief description of the organisational structure at the Office of the Public Protector? Very brief.
Mr Sphelo Samuel: Thank you, Hon Member. As we know, the Office is headed by the Public Protector as the Executive Authority; then followed by the Deputy Public Protector; and then there's the CEO, in that order. Then reporting to the CEO, it would be the COO or Chief Operations Officer. And then the Executive…
Mr V Zungula (ATM): My apologies. Chair?
Chairperson: Just pause Mr Samuel. You are recognised, Hon Zungula.
Mr Zungula: Chair, just one thing. I'm under the impression that in accordance to the directives, we need to wait for the cross-examination to end before MPs can come in. So I just need to have clarity on that and confirmation from Adv Mpofu that they are done with cross-examination.
Chairperson: Thank you for that. I don’t know whether you were with us all the time yesterday. I had indicated yesterday that this morning, we'll start with the Members and I have given Adv Mpofu the time allocated. He certainly… I'm sure he's going to raise if he would need any further time. So I did that first thing yesterday morning. I hope that clarifies you.
Mr Zungula: Can Adv Mpofu confirm, Chair, that he is done with cross-examination?
Chairperson: No, no, no, Hon Zungula. That’s not how we do it. You are not going to be a spokesperson for Adv Mpofu, please.
Mr Zungula: Chair you… Chair, please can I address you? Here I'm raising an issue as a Member of the Committee. That's the first thing. Secondly, you should not state or say that I'm a spokesperson to another person. Whereas I'm raising whether we are following the procedure and are we being fair. So Chair, I think this also speaks to you, as to how biased you may seem because it can't be that here, Adv Mpofu, the team representing the Public Protector, in my view, has not confirmed if they are done; then you say someone is a spokesperson? Because if I was equally raising an issue on behalf of the evidence leaders, I don't think you would have said I'm a spokesperson for the evidence leaders. So you need to be fair, Chair, in your approach. Thank you.
Chairperson: Thank you Hon Zungula. Adv Mpofu, the Public Protector, are here to speak for themselves, and that's a point I am making, and he has always done that. I don't expect a Member to pretend to represent them. I…
Mr Zungula: Chair, you are going back. You are going back to what I… I am not pretending to represent anyone.
Chairperson: I did not recognise you, Hon Zungula. And I am calling you out of order. I did not recognise you.
Mr X Nqola (ANC): Chairperson, can the ICT mute Hon Zungula?
Chairperson: No, Hon Nqola, I will deal with that. Hon Zungula, I want you to switch off your mic.
Mr Zungula: Please note me. Please note me.
Chairperson: I have already noted you.
Mr Zungula: No, no Chair, I need to correct what you are saying. Please note me.
Chairperson: Here is the point…
Mr Zungula: You allowed Hon Nqola to address you, equally allow me to address you.
Chairperson: Hon Zungula, I am not going to continue doing this with you.
Ms O Maotwe (EFF): Chair, Chair? On a point of order Chair.
Chairperson: The point I was making…
Ms Maotwe: Chair, can you please recognise me?
Chairperson: The point I was making is that this inquiry, whether it's the evidence leader, it's the representative of the Public Protector, its Members, this happens everywhere else, we do things according to time set. You tailor make your input as evidence leader, in terms of the time that you are required to do things. The same thing would happen with the legal representative of the Public Protector. So the issue is never the other extreme, where you will only stop when you feel you're done. You've got to do everything else; prioritise your issues within a time set. I do that to you as Members. I do that to the Evidence Leader. I do that too to Adv Mpofu. So we have to bind both the issue of fairness with the reasonability of time that we're managing this process: both go together. And I hope that your query – because you raised a clarification point – I've responded to it. Adv Mpofu is raising his hand. I'm going to recognise him. And therefore, I don't need any to and fro in relation to this issue.
Ms Maotwe: Chair, can you please recognise me after Adv Mpofu? I have been raising my hand.
Chairperson: Adv Mpofu?
Ms Maotwe: Chair? No, no, no, Chair. I am asking you if you are recognising me? I have been raising my hand. Can you please recognise me?
Chairperson: Thank you Hon Maotwe. Adv Mpofu?
Adv Dali Mpofu: Yes. No, thanks. Thank you, Chairperson. I'm completely at sea as to what is happening now. I indicated to you many times yesterday that I'm far from finishing my cross-examination. At some stage when I said to the witness that I'll raise this with you tomorrow, you even said, ‘Well, I'm not sure about tomorrow, we'll see how it goes’, or whatever the record will show. Then we come here to continue the cross-examination – with no reference to us. The process just moves on. This is completely unfair. We can't run this like a kangaroo court.
Chairperson: This is not a kangaroo court Adv Mpofu. This is not a kangaroo court.
Adv Mpofu: Yes, I hope so. So I’m saying that it can't happen like that. I mean, at the very least, someone should have given me the courtesy of indicating A, that I'm being gagged, or that the cross-examination is finished by someone other than the one who was cross-examining. Yeah, it can’t work like that. I just want to register. I did this before, I think after the fact, in fact, I was saying to the Public Protector now that because I didn't want to interrupt Mr Mileham, that I'll find an opportunity to register this. As you say, and as Hon Zungula says, yeah, we're not Members here, so we have no powers; but we can't be treated like this. It's just completely… I've never heard of a forum, which just continues while we are almost mid-sentence, and just does the next. I mean, what is actually happening?
Chairperson: Okay. Thank you Adv Mpofu. I will address you.
Adv Mpofu: Sorry Chair, let me just finish. I just wanted to say I even thought maybe you were doing what you did with… was it Mr van "Loggenburg", or was it the other witness, Mr Ebrahim? Where you interposed the questions and then we said we will call him later, which I objected about last time, but now it turns out, you’re not even doing that, you're just moving on with the process without us covering some of the most critical issues that this witness has said. Now, what will be the work of the…
Chairperson: Thank you Adv Mpofu. I am going to respond and make a ruling.
Adv Mpofu: No, no, but can I finish talking?
Chairperson: Please finish. Please finish.
Adv Mpofu: Yeah. I'm saying that what would be the worth of this evidence of this witness to anybody, if it has not been tested by cross-examination? Some of the statements that he has made about information being fed to him, which did not come from him, still have to be to be explored. So what I'm saying, Chair, is that, you know, we can move fast, but to move fast to a cliff? Because this is not going to serve any purpose. I can tell you whatsoever to move on to the next stage, when the directives are very clear. They were adopted here, against our will, but they were adopted – that Members will only ask questions after the cross-examination. This is not after the cross-examination. This cross-examination is in session. You stopped it yourself last night or yesterday afternoon, at a point that suited you, not the Public Protector. Thank you.
Chairperson: Okay. Thank you Adv Mpofu. I will respond to that and address you and make a ruling. But let me note Hon Maotwe, Hon Nodada and Hon Mulder.
Ms Maotwe: No, thank you Chair. It’s the same issue that I wanted to raise of saying you must be fair to this process; fair to the committee; fair to the people of South Africa. because our names are in this thing. So with the way you're conducting the meeting, we are all now bound by your actions that you are conducting yourself with. So the rules are clear, (the) directives are clear. The cross-examination must finish, and then the Members can engage. So if Adv Mpofu says he's not finished, he’s not finished Chair. Why are we in a hurry? Why are we rushing to just continue even if the cross-examination is not finished? We run the risk of going back. I mean, this is now the third witness where Adv Mpofu has said ‘We'll look at whether we need to call the witness back again to the stand or not’: so we're going to have all these processes starting all over again, because Adv Mpofu is not given a chance to finish. So can we please abide by our own directives that we adopted as the Committee? And some of which… some of us did not agree to. But they were voted for and we agreed to continue. But we can’t now be the same people who adopted the same directives, who are now contravening the same directives. It’s not fair, Chair. Can you please chair this Committee in fairness. I thank you.
Chairperson: Thank you Hon Maotwe. Hon Zungula?
Mr Zungula: Chair, thank you. Some of the issues have been addressed by Hon Maotwe, and I did address them initially, so I'm not going to repeat them. However, I want to focus on one point that says… I want it to be registered to the Committee, the public and everyone that is watching this, that you, as the Chairperson of this Committee, are not fair. You, as a Chairperson of this Committee, are emotional when it comes to dealing and running this process. I'll make mention of this one incident where I am raising an issue that affects the procedure which should be followed. I'm raising an issue in accordance to the directives, your response is saying ‘I'm a spokesperson of the legal… of the Public Protector’. Your response is saying I pretend to represent them. Now, you are making insinuations that my participation in this Committee it is not based on my role as a Member of Parliament, but my participation in this Committee is based on me being a Spokesperson of the Public Protector and I find that out of order; I find that degrading; I find that undermining; and I find that you as a chairperson, throughout this entire process, it appears as if you have a predetermined outcome. You have a predetermined, you know, outcome that this process must take. That is why if a person is raising an issue of fairness, you want to quickly silence me, you want to make wild insinuations about me. So I wanted to register, Chair, that if this process is going to continue the way you are driving this process, then it will spell out that this entire process is a… There is a witch hunt against Adv Mkhwebane by the manner in which you are running this process. So I want to appeal to you firstly, that you need to be fair as a chairperson. You may not agree with all of us; we're not here to agree with you. We're here to serve the people of our country. However, as a chairperson that does not give you powers to act as if you are our father and you are our God here and you are the only one who can talk and everyone else must follow you. Secondly, Chair, I'll be writing to the Speaker and raise the fact that you are biased, and you are not fair and you are doing… you're chairing this process in a manner that does not give confidence that indeed it is an objective fair process. Thank you.
Chairperson: Thank you Hon Zungula. Hon Hendricks?
Mr G Hendricks (Al Jama-ah): Thank you very much Hon Chair. Hon Chair, I think you've been very fair. Secondly, Hon Chair, Al Jama-ah stands with the way you are conducting all these proceedings, we are not going to – we are not going to have a long drawn out inquiry. And that's why the chairman must give leadership. And I just want to thank you for your leadership. And, yes, there are directives, which serves as guidelines, but there's also a chair and the chair has to look at being fair, not only to the Public Protector, but fair to Members, and fair to the nation and fair to Parliament. Yes, I will also write to the Speaker, to tell the Speaker that we are very happy with the way you are conducting these proceedings. Thank you very much.
Chairperson: Thank you Hon Hendricks. Hon Nodada?
Mr B Nodada (DA): No, thank you very much Chair. Chair, we've got directives that have been adopted here and we must not read them to suit a certain narrative. Directive 6.4 is very clear that the Chairperson gives a certain time allocation for questioning. It is read with the following directives that go as far as cross-examination in 6.8, and that there can be a time limitation that you give as a chairperson, when it comes to cross-examination. Whether you're in a court of law; whether you are at home; whatever you are, there's always a time limit that is set for certain things. But we're here to run a fair process. And the process must be fair to all that are involved in it. And I feel as if we have. You've been sitting in that chair in most instances very fair. And our role here as Members of Parliament is to also interact with the witnesses that are being cross-examined, in line with the same directives. So when we throw the word fairness and bias, I feel like sometimes we just throw them for the sake of throwing them because we might define them differently. But we're all sitting here, and the nation is also watching. And so it's important for us to not read things retrospectively to suit our own narrative. But I want to reassure you, Chair, that as Members, particularly myself as a Member sitting on this Committee, is that we want to run a very fair process to ensure that we conclude with it to ensure that we are fair to Adv Mkwhebane and whoever else is involved in this particular process. Thank you so much Chair.
Chairperson: Thank you. Hon Nkosi? Hon Bheki Nkosi, you are mute.
Mr B Nkosi (ANC): My apologies Chairperson. Good morning Chairperson and Members of this Committee. Firstly, Chair, I just want to affirm the fact that we are working according to the directives as agreed. My recollection when we ended the meeting yesterday, you indicated to all that today you are going to prioritise questioning by Members in the morning and then in the afternoon we'll go back to the first witness. There was no objection at that point to what you were saying and nobody raised issue with that. Second, and which is important for me, is that sitting there as a chairperson, based on the directive and any discretion that you may wish to exercise, you are empowered thereto, by these directives. Any objections that may be raised, should be raised, of course, following the correct procedure adopted by the Committee. It is availed to everybody that participates in the Committee to raise objections based on the directives, but doing so should not impede the progress the Committee is supposed to make in as far as ensuring that it hears both the Public Protector and the evidence leaders. Chairperson, I think, with regard to the current issue, I think you are exercising your discretion. I am satisfied that you have pre-warned us yesterday, and that you are indeed exercising that discretion now and continuing. And objections, therefore, should follow, after, in my view, you have exercised your discretion. Lastly, Chair, I think that this is an important process and I don't think that in the past two weeks or so, you have acted in a manner that suggests bias or confirmation bias with regard to any other thing before ourselves. I think we should continue in that regard. Thanks Chair.
Chairperson: Thank you Hon Nkosi. Just the last two hands: Hon Majozi and Hon Mulder. Oh, that’s a new one. Okay. Hon Majozi?
Ms Z Majozi (IFP): Thank you Chairperson. My apologies, can I keep my video off? We don’t have electricity – we’ve got a problem with our substation. I'm afraid that if I do switch on my video, maybe you will not hear me. Chairperson, I would like to plead to Members that as much as we are saying that the public is watching – and we want to keep the decorum of the house as well – let us keep the respect that we've been showing all this time. I do agree with other Members that both sides were given an opportunity of a full day to cross-examine the people that were on the stand. Let us maybe remove the fact that we came maybe from different political parties, and maybe we came with different outcomes; let us follow the process of this Ad-Hoc Committee. Let us follow the process that we had set before we even started this process. That is what it is. That we're going to do. Both parties were given chance and opportunity to cross-examine. Now let the other process unfold, and we continue. Because if we allow unprecedented things to happen today, which means even tomorrow, with another person that will be taking the stand, it will have to be the same thing. And if another party asks for more time, which means we will have to give them as well. So let us proceed with the way we have been proceeding and follow the process the way we have been doing. I don't have a problem the way you have been chairing, Chairperson. I think you have been very fair in terms of the process that you've undertaken. But let us keep the decorum of the house. And maybe there are words that we shouldn't be using like ‘Our God’ and so forth; those words are not words that we should be using in a Committee. I mean, we're all adults here, we must respect one another in the same way. I'm not saying how people must talk, but I'm just alerting people that even the public is watching, so what we say and how we behave will be taken upon this Committee. Thank you, Chair.
Chairperson: Thank you Hon Majozi. Hon Mulder?
Dr C Mulder (FF+): Thank you Chairperson. It's Friday, after a long week, and normally Fridays should be a bit more relaxed but it doesn't seem like that. Most of the colleagues covered what I wanted to say, Chairperson, but I want to make a few points briefly. On the first day, I made a point to say that fairness will not be a ground for appeal: that’s my perception. And some of the colleagues have now said they think that you've been fair, I don't think that you've been fair, we know that it's been fair. Because fairness is not only to the Public Protector, it is to the Members of this Committee as well. We've been sitting here for two weeks, very patiently allowing Mr Mpofu and the Public Protector to do what they need to do. But we also play a role in this process. Mr Mpofu made the point just now that he objected to the directives, maybe I missed that. I didn't get that objection. But maybe he did. I don't know. He also made the point that he objected to the recall of the witness. Maybe I missed that objection as well. I think the statement to say that "this is not a kangaroo court" is unfortunate. You said right from the beginning, this is not a court: it's not a court. This is a parliamentary process; it's not a judicial process; it's not a court. So I think that's unfortunate. Some serious allegations are made this morning. Terminology being used by some of the colleagues, it seems that it's a predetermined process. We all know, that's not the case. It's being said that you're biased, there's no fairness, this is a witch hunt. I don't know where that comes from: I really don't know. Because all of us have been part of this process. We've seen that it's a fair process. The question is this: Is Mr Mpofu – and I made the point on the first day; there was an objection taken to that – are we to sit here and if Mr Mpofu continues and says he needs to do some cross-examination for the next three weeks, Parliament must just sit back and say ‘well it's fine, are you now finished? Now we take the next witness for another three weeks’? No. We've got a programme and the Chairperson needs to do a fair process. And I think he's been fair. He’s got to look at the directives and allocate the time between what is fair to the Public Protector, but it's also fair to the process. Members of Parliament are not here to observe; it's the Committee that we also need to participate. Thank you Chairperson
Chairperson: Thank you. You're last Mr Skosana.
Mr G Skosana (ANC): No, thank you very much Hon Chair. And good morning to everybody. Well, Hon Chair, I do sympathise with Adv Mpofu, that he may be having other questions and stuff. However, I think we are working within the issue of time allocated, because the directives we issued, which are directives in terms of the National Assembly rules, Rule 183 to be specific. The issue of prioritisation of questions I think for all of us is going to be very important for Adv Mpofu, for Adv Bawa, even for Hon Members. Even myself, I think I've got a lot of questions that I think I should ask the witness but obviously I won't be able to ask all the questions, because we will have to share the allocated time amongst ourselves as Members. So I'll have to prioritise, to say which questions to ask and leave the other. I think the same should apply to Adv Mpofu. And the same should apply to Adv Bawa and the other Hon Members. And I think at some point, one Hon Member if I remember correctly, Hon Seabi, made a point that you should have a backroom meeting, yourself Hon Chair, Adv Bawa or the evidence leader and the representatives of the Public Protector. For instance, if Adv Mpofu was not happy yesterday that he did not finish his question, after the adjournment of the session, I think he could have had that kind of a session, to come to you and say ‘but I'm not happy… what what’ and then… so that you can discuss it amongst yourselves. Perhaps today, you could have a sort of an agreement as to how you are going to handle it. Because now we see we're wasting time discussing this thing. I think we could have been far with the programme even now. I think that issue of backroom meeting is going to assist but more and above that, I think my emphasis is on the issue of timelines that we are working on the allocated time, so we must all prioritise…He might be having many questions, but he has to prioritise which questions to ask; and which one to leave because of the allocated time. That's the point that I want to make Chair. Thank you very much.
Chairperson: Thank you very much, Hon Skosana and everybody else who would have contributed. Here’s…
Adv Mpofu: Can I respond before you summarise, please?
Chairperson: I had given you an opportunity and I said I'm going to respond and summarise later now you don't want me to go there, Adv Mpofu?
Adv Mpofu: No Chair, I have something to say. I thought it's more convenient before you summarise, if you don’t mind? Thank you. Thank you, Chairperson. Just to respond to the last few points. We are fully aware that there is no unlimited amount of time, so the idea of Hon Mulder of a three week cross-examination, is just a… it's really just an unnecessary remark, if it is directed at us. We're also fully aware that the Members have to interact, that's why the directives allocate the Members' interaction. In all the objections we’ve made to the directives, which Hon Mulder seems to have missed, we've never dealt with the issue of… that Members must be muzzled. The only issue we are raising is, at what point that should happen. I don't think anyone who is honest, came here this morning thinking that the cross-examination is not going to continue: not the witness; not the Members; not the public; not the media; not the Public Protector. Anyone who is honest with their convictions knows that that's what we came here to do – it was to continue. Doesn't matter what people might say about it. So that is the issue. The issue is that it can’t be…I'm sure you've never seen it, even in a movie.
Chairperson: You are not going to repeat the point you made before, because I want to make a ruling now.
Adv Mpofu: Please let me finish speaking, Chairperson.
Chairperson: No, no, no. I'm saying, I'd given you an opportunity, and you have made your point.
Adv Mpofu: Yeah, but it was before. What I am responding to [what] was said.
Chairperson: And I’m asking you not to repeat what you said before.
Adv Mpofu: I’m not repeating.
Chairperson: Thank you.
Adv Mpofu: Okay, I won’t. Thank you, Chairperson. I'm saying that no one has ever seen… when you've… We've all seen people saying I have no further questions, in any process. I've never seen a process where that is not said by the person asking questions. And that's not just singing a song, it is to indicate that the point has been reached, where the person asking questions has no further questions. Where have you ever seen a situation where someone just says: ‘okay, that's it, let's now… we'll sentence you to death or something, before you indicate that you have put your side of the story’? When we say alteram partem: ‘hear the other side’, that's the first rule of fairness. The second rule of fairness is don't be biased. Both those rules are being pushed serially in this process and we cannot have a situation like that. Otherwise, we're just here to clarify the setting. And then you do whatever you wanted to do, and we will sit here just out of respect for the process, but… or if I can even call it a process. But if that is what is supposed to happen, that we must just sit here, lie down and be lynched, fine, then let's do it: but do not call it a process of fairness. It is the most egregious breach of every known rule of fairness, and it cannot be done in the name of the Parliament of our people. No. If that's… If it's going to be like that, then at least we must be told, so that we know that we're just here as tourists to just, you know, sit but not to participate in a fair process. What you're doing is unprecedented. It has never been done anywhere. I've been in this game for many decades. I've never seen it being done in any process. And I'm not just talking about courts: I'm talking about inquiries; I'm talking about commissions; I'm talking about fact finding inquest, whatever it is. There's never been a legal representative who’s not allowed to say: ‘I have no further questions’, and you just carry on as if nothing happened.
Chairperson: Thank you Adv Mpofu. Thank you Adv Mpofu. Thank you to all of you colleagues, Hon Members, and yourself, Adv Mpofu. Just to make this summary and a ruling. So when we started on Wednesday [27 July] we had given a set of time for the evidence leader who finished evidence leading at half past three on Wednesday. And as you will remember, I had indicated then – because that was my intention – that the next two hours, we’re going to go into cross-examination. We all know that there were health issues with the witness, and we started the next day, which is yesterday, with Adv Mpofu, from 10 o'clock. I would have – when we started yesterday – said "I will re-examine his time at 3 o'clock", if you all remember that. And then I extended his time, up to the end of the day yesterday. He's been speaking about that by himself. At one point in his cross-examination he raised the issue of him continuing the next day. I intervened on that, that there is no tomorrow; "it might be another time that if you request that, you can be entertained". I had always been clear throughout the day yesterday, that today, I'm going to start with Members interacting with the witness. And here is the thing: it's not done. That hasn't happened anywhere in any jurisdiction, that in a process that we're driving…we're not running an elastic process that has no end. The reasonability of this is that it must be done within a reasonable time; and we want to achieve that. And as we achieve that, we balance that with fairness, which we have done completely so. Now, I want to repeat this point; if I give the evidence leader and say: ‘You have from this point to that point’ – that she needs to tailor her evidence leading within that time. If I do the same to you Adv Mpofu, as a legal team of the Public Protector, I expect you to tailor make your own cross-examination within a stipulated time. And that time has been the whole day of yesterday. The objection will be noted. But as you would know, nothing stops you as we're going to do this afternoon, to interact with Mr Ebrahim… Hassen Ebrahim. If you still need more time, nothing stops you from raising that. But it might mean that we attend to that in a manner it should be done. But it must not… I don't want you to proceed in a manner as if you are surprised about the action that I'm taking this morning because there can’t be really surprise about that; having said that, loudly yesterday, about what needs to happen. So I really want… and I'm not going to get into because this – I repeat, this is not a kangaroo court. There's no bias shown here, in fact, there's a lot of fairness and rationality in this process. I therefore want to… and I make these two points: I've noted your objection on this, but you also, you do know that it can’t be the end of the road if you need further time to interact with the witness, that's allowed as we're going to be redoing that with Mr Hassen this afternoon. So with that, colleagues, I want to proceed and in the list that I have called to ask the Members to begin their interactions. Hon Mileham.
Mr Mileham: Thank you Chair. Are you going to give me my time back?
Chairperson: You haven’t started.
Mr Mileham: Thank you Chair. Mr Samuel, you said that the staff structure had the Public Protector at the top: the DPP, the CEO and the COO and then you were getting to the next layer?
Mr Samuel: After the COO, then come the executive managers heading the different units, both at Head Office and for the provinces. And then comes the senior managers, who are provincial representatives, and other senior managers also based at Head Office. The rest, going down…
Mr Mileham: That's fine. Thank you. So just so that I am absolutely clear, COO, executive managers and then provincial representatives?
Mr Samuel: Correct, Hon Member.
Mr Mileham: Thank you. Can I just turn to the Vrede report? There was an issue raised that certain complaints, particularly Complaint 3 from Dr Jankielsohn was not investigated or not reported. Can you give us any indication as to why that was not investigated or reported?
Mr Samuel: My recollection [is] that complaint came after the so-called Gupta Leaks; and by the time we had sent our report, initially, the Public Protector gave a directive or instruction that we must… I think she gave it to the CEO to say that part must also be investigated. But then at a later stage, a few weeks or a few days thereafter, that was changed to say that they should not be investigated.
Mr Mileham: Thank you. Was any reason provided for not subpoenaing Premier Magashule and MEC Zwane?
Mr Samuel: No.
Mr Mileham: No reason was provided?
Mr Samuel: None was given.
Mr Mileham: Thank you. And was any reason given for the exclusion of the findings or remedial action against those individuals?
Mr Samuel: No, not to me.
Mr Mileham: With regard to the beneficiaries of the Vrede Dairy project, why did the Public Protector not consult those beneficiaries?
Mr Samuel: I know at… during the re-investigation, which was not done by Head Office, there was an interaction with those beneficiaries. But from our end, earlier on, we had spoken to, or at least my predecessor in the Free State Office, had spoken and interviewed the leader of the group of beneficiaries who subsequently died. And also from our end, it was… we did not deem it necessary to interview each and every one because that was the leader who was representing all of them. So that was done, in part. It's just that… and when we asked during the meeting… when arranging the inspection on 10 April 2017…When we asked the Public Protector through her PA, whether we should call the beneficiaries to be present at the inspection, and with a view that she should, if she wants to interact with them, seeing that they would be there already. Her response was that ‘it's not necessary to do that’.
Mr Mileham: Okay. In regard to that, the email, it's SS30 in your bundle – the email from Ephraim Nkabinde. You indicated already that this person was the Public Protector’s personal assistant, is that correct?
Mr Samuel: Correct, yes.
Mr Mileham: Did that person give you an instruction that the beneficiaries were not to be included in the visit by the Public Protector?
Mr Samuel: To respond to that question; we specifically asked him to communicate to the Public Protector and ask if we should ask the beneficiaries to come. His response was, in our view, an instruction from the Public Protector because I don't believe he would have made that decision on his own. The response we understood to mean that the Public Protector does not deem it necessary for them to…
Mr Mileham: Can I refer you to that, you know, it's page 2529, SS30. If you have a look at the response, it says: “Dear Erika, no need to invite the complainant and delegation beneficiaries, regards…”, and it's sent to you by Ephraim Nkabinde. Is there anything there that indicates that instruction came from the Public Protector?
Mr Samuel: No, not from that email.
Mr Mileham: Okay. Mr Samuel, I'm asking you to maybe speculate a little bit here, but if you know, perhaps you could answer; why were the findings of non-compliance by the department contained in the draft provisional report removed?
Mr Samuel: I am going to ask that you please repeat the question?
Mr Mileham: In the draft provisional report, there were findings of non-compliance by the Department of Agriculture in the Free State.
Mr Samuel: Yes.
Mr Mileham: Those were removed subsequently. Why were they removed?
Mr Samuel: I cannot recall, really. Are you referring to the November 2014 report?
Mr Mileham: That’s correct, yes.
Mr Samuel: Oh, yes. That one was… I cannot recall because it was sent through when I was still in Limpopo. Okay. So when I went through to the Free State, I did not… I never inquired about that. I just took the report as it was discussed in the think tank. To continue from there.
Mr Mileham: Mr Samuel, do you know if there was an appeal against the Estina judgement?
Mr Samuel: Yes, there was.
Mr Mileham: There was an appeal. What was the outcome of that appeal?
Mr Samuel: Oh, it was not an appeal. Are you talking about the review?
Mr Mileham: There was a review finding…
Mr Samuel: The review to set it aside?
Mr Mileham: There was a review to set aside. Was that review appealed?
Mr Samuel: Yes, it was.
Mr Mileham: And what was the outcome?
Mr Samuel: It was not successful.
Mr Mileham: Thank you. I want to move on to… You raised the issue of legal costs and how they had ballooned. What caused that ballooning of legal costs? You've said the Public Protector's Office became more litigious but why did it become more litigious?
Mr Samuel: There was no reason provided and that was why I questioned why we're suddenly involved in so much litigation, when the practice or the, you know, the approach up to then, has been that we are not a litigious institution. And that, you know, we've always been complaining about our budget being insufficient. So the involvement in litigation meant that other programmes suffered, the money was redirected.
Mr Mileham: Okay. Do you have any knowledge of which law firms and/or advocates were utilised by the Office of the Public Protector in the period 2016?
Mr Samuel: No, I cannot recall that out of hand now.
Mr Mileham: Was there a panel of law firms, or was it one or two? If you don’t know then…
Mr Samuel: I can’t recall but I… there were more than one.
Chairperson: Your last one.
Mr Mileham: I’ve got two questions, Chair. With regard to the reinvestigation into the Vrede Dairy Project, did it commence de novo when that took place? Or did they use the information that had already been gathered and then add to it?
Mr Samuel: I cannot say that they… you know, it was started de novo; but at least in as far as the politicians and their roles were concerned, yes, certainly it started de novo.
Mr Mileham: Just in that particular part?
Mr Samuel: Yes, because that was the main crux of the reinvestigation.
Mr Mileham: Okay. The last question from me. And I'm referring specifically to the meeting that was held between the Public Protector and Premier Magashule. Is it normal for meetings between the Public Protector or is it, first of all, is it normal for the Public Protector to have meetings with implicated persons like that? And as a consequence, if the Public Protector had such a meeting, would that have normally been minuted and recorded?
Mr Samuel: Yes, firstly, it is normal for the Public Protector to have such meetings with implicated parties but that would be an investigative meeting, which should then involve the officials from her office investigating that implicated party. And because it would be an investigative meeting, it would have to be recorded. Minutes taken and voice recordings as well.
Mr Mileham: Thank you Mr Samuel.
Mr Samuel: Thank you.
Chairperson: Thank you Mr Mileham. Before I go to Mr Herron, I see Hon Zungula you have your hand up?
Mr Zungula: Chairperson, in your earlier exchanges, you had stated that I'm a spokesperson and I purport or pretend to represent Adv Mpofu and I find that firstly, it is unparliamentary and it is degrading to me as a Member of Parliament. So I wanted you to withdraw on that, withdraw that and make a ruling that you were out of order.
Chairperson: Thank you Hon Zungula, your order is not sustained. I proceed, Hon Herron?
Mr Herron: Thank you Chairperson. Mr Samuel, I want to understand the investigative process that you undertake in the Office of the Public Protector and how you get to identify implicated persons?
Mr Samuel: The investigative process generally starts with drafting an investigation plan, looking at the allegations being made. We determine whether or not this will be a protracted investigation and so that … because with timelines, for specific investigations, and in terms of that project plan, we then set milestones, you know, within which we should have achieved certain aspects. And it happens in the initial complaint, there would be allegations made about specific people, but in some cases not and during the course of an investigation, we will then pick that up that someone else has been implicated and so not ignore that, we would have to pursue that aspect as well.
Mr Herron: Okay. And I think your evidence was that if implicated persons were politicians, then the case would be regarded as politically sensitive, is that correct?
Mr Samuel: That is correct.
Mr Herron: So, what was the initial complaint in the Vrede Dairy Investigation?
Mr Samuel: Initially it was about the conduct of the department, specifically the HOD (Head of Department), in spending the amount of money that they had paid out to… let me gather my thoughts there. It was to the Estina… Initially it did not mention any politician specifically. And later on in our interaction with the complainant, Mr Roy Jankielsohn, it then transpired that he's in fact in effect complaining about the role of politicians in the whole process.
Mr Herron: And I think your evidence was – and your affidavit contains several references to it – that the lead investigator was Adv Cilliers?
Mr Samuel: That is correct, yes.
Mr Herron: And that when you arrived at the Free State Office, there was a November 2014 report that had been drafted by Adv Cilliers?
Mr Samuel: That's correct, yes.
Mr Herron: And that report didn't include implicated persons who were politicians?
Mr Samuel: Yes, it did not.
Mr Herron: It did not?
Mr Samuel: It did not.
Mr Herron: And was it Adv Madonsela who wanted further investigation into the politicians?
Mr Samuel: It was in the course of our discussions in the think tank, that it came about that there was a role of… The report does not look into the role of politicians. She would have had interactions with a politician that's basically the complainant, because any follow ups or delays or perceived delays will be raised with her.
Mr Herron: So why would Adv Cilliers not identify politicians, if she was following the investigative process and presented a draft report that didn't include politicians?
Mr Samuel: I cannot answer that question because at that stage, I was not involved with the investigation. I was only involved from the time it was discussed at the think tank. But in my discussions with her, she always regarded… because subsequent to that, she always argued that this was an administrative complaint, not a political complaint.
Mr Herron: So would it be fair to conclude that the evidence and the investigation that she was pursuing didn't identify any politicians, and that's why she excluded them from her 2014 November 2014 draft?
Mr Samuel: No it did: it did. But it only limited those findings to their failure to take action against or to oversee / to implement the recommendations of the investigation that was done by Treasury. I’m sorry, it was the, I can’t remember the exact term: Accountant-General (AG), or something.
Mr Herron: So then why did Adv Madonsela have to ask you twice, I think you said… You gave evidence that she even phoned you on one occasion, to say that you need to take over this investigation, because there's not sufficient findings around or non sufficient investigation around politicians?
Mr Samuel: I cannot, you know, explain from her, you know, from her perspective, but she felt that, you know, we were not delving deeper into the issues, to see if we can find any direct evidence that they were involved in the investigation. She was by no means suggesting that they were, she just said, investigate it and whatever your finding is, it should suffice because we, you know, … this… By the time it was already in the… you know… growing interest from the media and the public.
Mr Herron: But Adv Cilliers hadn't found any work or haven't made sufficient findings?
Mr Samuel: That’s because she had not investigated them.
Mr Herron: And we heard from Mr Kekana that Adv Cilliers was removed from the case because she was a DA member?
Mr Samuel: To my knowledge… I don’t have any knowledge that she was a member of any political party.
Mr Herron: It would be strange that if she was a DA member removed from the case, and there was a DA complainant, that she didn't find anything against politicians?
Mr Samuel: I would think so, yes. That if she was a DA member as alleged, the insinuation would be that she would also have an interest in finding against the politicians.
Mr Herron: Well particularly if there's a complaint from a DA Member of the Provincial Legislature.
Mr Samuel: Yes.
Mr Herron: Okay. I just want to move on quickly, if I may, to the Rule 53 record, which you say, you looked at the record filed and you were surprised there was only a November 2014 report as part of the Rule 53 record?
Mr Samuel: Yes.
Mr Herron: Do you know off hand how many drafts of this report there were? Maybe I can… I've gone through your affidavit, maybe I can help and you can tell me if this is correct. I have November 2016, drafted by Adv Cilliers.
Mr Samuel: Yes.
Mr Herron: And then there's March 2017, that was drafted by Matlawe and was regarded as a provisional report?
Mr Samuel: Yes.
Mr Herron: And then in April 2017, also drafted by Adv Cilliers, am I correct?
Mr Samuel: Correct. Yes.
Mr Herron: And there was a July report that was… You call it a July report, but it was drafted in August, also by Adv Cilliers, correct?
Mr Samuel: Correct, yes.
Mr Herron: And then there was the September 2017 report also drafted by Adv Cilliers but drafted in August?
Mr Samuel: Yes.
Mr Herron: And then there was a report, which you refer to yourself as having been involved in, a revised draft in 2017. But you can't find that report?
Mr Samuel: That's correct.
Mr Herron: So that's about six reports that you would say should have been in the Rule 53, but were not in the Rule 53 record?
Mr Samuel: Yes, that would be the case. The point I made, and I'm still making now, is that there was a lot of to and fro, about these…you know… these reports. I certainly understand if it is confusing on anyone, because sometimes it is confusing to myself as well. I have to gather my thoughts to know which report, you know, was which. The way I could isolate whether, you know, moving from one report to the other was what the difference is where… Was to employ a feature that was on my laptop to compare the two and, you know, let it, so to speak, do the reading for me and say, what is in the new report that is not in the old one. But with my laptop being confiscated, subsequent to that, I could not follow the trend of the reports.
Mr Herron: So, finally, your file was requested and sent to the Head Office, also, I think in 2017, you said?
Mr Samuel: Correct.
Mr Herron: So, all of these reports, these six or seven reports that were various versions of this draft report or provisional report, would there have been copies in that file? Would you have made a copy of each of those reports?
Mr Samuel: Yes, there would have been there.
Mr Herron: So the exclusion from the Rule 53 report, in your mind, how did that happen?
Mr Samuel: I have no idea. I found it surprising. I was not involved in the preparation of the record. But when it was brought to my attention, I was surprised why would you go to the very initial report and make it as if that was the only report that was considered or the… you know… the final report signed-off that was being appealed or review, was in fact the 2014 one. I could not understand that.
Mr Herron: Thank you.
Chairperson: Thank you Hon Herron. I now recognise Hon Mananiso.
Ms J Mananiso (ANC): I would like to welcome you, Mr Samuel.
Mr Samuel: Thank you.
Ms Mananiso: I want to check with you whether you are certain that what has brought you here is not to get retribution, according to grievances you have raised on your affidavit? That’s my first question for you.
Mr Samuel: Thank you Hon Member. I have stated that it was out of concern for the escalating legal fees that my gripe first started. And I've said, and I will repeat it now, I don’t have anything personal against Adv Mkhwebane. I have my views about her and her conduct, but they have nothing to do with me having been dismissed by the Office or any action taken about me. I am here solely to assist the… you know…the Committee at its request, in the sense that my initial affidavit had made allegations that they felt would need to be answered to and presented to the Committee.
Ms Mananiso: Thank you. My second question. According to you, with the concerns you have raised on your affidavit, in terms of paragraph 139.3, have you tried to actually raise those issues within the institution, more especially with those that you were working with: the think tanks? Have you tried to raise your issues with regards to whatever you feel that you are not satisfied as a subordinate in the institution?
Mr Samuel: Just to be certain Hon Member, I want to understand. Paragraph 139.3 talks to the meeting the PP had with the line manager. No, I did not. I discussed it with my line manager, Adv Ndou, to say this happened but I did not raise any concern as in a complaint or say, a grievance about it. No, I did not.
Ms Mananiso: My other question is with regards to paragraph 193, you indicate your issue of…for me, it's as if you are surprised that in 20 years you've been subjected to discipline and so on. One would want to check noting what you've raised on this, because later with regards to the issue of intelligence of the Public Protector, for me when you read the affidavit from my side, it would indicate there were some tensions with regards to you being submissive in terms of the orders within the institution. However, one would want to know that with whatever has been happening in the institution of the Public Protector, don’t you think that some of the people can be… I think that there was some little bit of subordination from your side for an order from a female with a higher in terms of the authority in the workplace. So, don’t you think that people can think that you are some individual or a male who believes that they cannot be led by a female in an institution?
Mr Samuel: I do not agree with that. I have no problem with being led by, you know, a female or a woman. I have been led by them previously, notably, my line managers in the past, and notably the ex Public Protector Adv Madonsela, whom I hold in high regard. I have learned a lot from her and others. I have no issues or qualms about being led by, or taking instructions from, my immediate boss, so to speak: anyone who's above me. My feelings as to whether whatever gives me an instruction is a male or female has got nothing to do with my professional work. In a professional environment there are different classes of authority and I subject myself to those.
Ms Mananiso: Okay. Thank you, Sir. My other question is with regards to your conclusion of your affidavit. One would want to check: do you believe the incumbent PP has brought shame and dishonour to the Office of the PP with her conduct?
Mr Samuel: Yes, I do.
Ms Mananiso: Okay. And then, my last one, Chair, is that in the circumstances you related, do you believe that the PP conducted herself improperly and has bought the Office of the Public Protector in disrepute?
Mr Samuel: My understanding of bringing an institution into disrepute might really be subjective. I can only go as far as saying based on her conduct, overall conduct, especially as reflected in the public following from her conduct – generally as in being involved in this litigation or being reported on in the media – it has eroded the trust that people had of the Office and their reliance on whether or not their complaints would be attended; it was definitely dented. We do interact with people on the ground and some do question whether or not we are behind giving the Public Protector this support, this kind of advice. And it's a reflection of how they perceive the Office, given those negative comments or the negative publicity around the conduct.
Ms Mananiso: Okay. No, thank you Chair.
Chairperson: Thank you Hon Mananiso. I now recognise Hon Sukers.
Ms M Sukers (ACDP): Mr Samuel, I have three questions. I first want to ask – just to add to what was asked previously – did the shadow of Adv Thuli Madonsela loom large over the new Public Protector as she entered the role?
Mr Samuel: I would say yes, it did.
Ms Sukers: And to what extent did that influence the expectations of managers or investigators?
Mr Samuel: I believe it's natural, speaking for myself, for anyone to react to change by comparing generally where we come [from] or where we are at the time, to the new change – as in the new incumbent coming in. It happened with the transition Adv Mushwana and Adv Madonsela. But, immediately we get to interact with the new incumbent and get to know his or her vision about the office, it allays some fears. Most certainly, with the arrival of Adv Mkhwebane; I’m speaking for myself personally and having worked with her previously, when we were both senior investigators, and we were also involved in starting representation of all the workers in the office. We started off serving the staff association together. My expectation and everyone else's was that she's coming into the Office, you know, knowing what generally the issues are, and that you would, you know, be…you know, she would treat everyone with respect and sort of listen to what our issues were. And the first few weeks, we were battling with getting our salary packages translated into the LP scales; and that was a grievance we had with Adv Madonsela. And so when she came in, that was one of the first things that she attended to and it was resolved. It was an indication for us that at least she's listening and she's… you know… she's listening to us as workers. But definitely, you know, there was apprehension at first. You know, we didn't know how to handle the change, but as soon as we got to interact with her, we then eased into working with her.
Ms Sukers: So it settled down?
Mr Samuel: Yes, it settled down.
Ms Sukers: You claim that the Public Protector was exposed during the think tank sessions. Can you give the examples of when this occurred?
Mr Samuel: I’ve referred to an example in my initial affidavit that, you know, we had robust discussions in the think tank and everyone was supposed to voice out… to have read the reports, including the Public Protector, and then, you know, debate issues, whether the facts supported the …or whether the law supported the facts as we read the reports. And [we] would not agree, even during Adv Madonsela’s time, we would not agree completely, with everything. At times…Let me start with Adv Madonsela, she would, for instance, disagree with us on certain conclusions that we're drawing and what the report should be like and she would give in and say, ‘Okay, I'll go with the majority, what what…’. But sometimes, where she felt strongly that she could not defend what the majority was saying if there were a backlash, she would then persuade us to go with her thinking. And the justification, therefore, was that she's the Public Protector; she's the one who's going to have to face the backlash about that. And we would accept that and take it as providing leadership, which was, by contrast, not the case when Adv Mkhwebane continued with the think tank. I make the point that you know, we would again continue with these debates and we obviously have different views and we would argue differently about cases and she would go, you know… she'd go along with a particular view. And, as the discussions progress, a different view would come and she would then jump and follow that, to the extent that, we then perceived her as not providing leadership so that we can take a decisive action about a report. Perhaps it might have been unfair in that we were comparing her predecessor but that is generally how…what it was. To the extent that she had a daunting task in filling those boots, I think it was natural for us to compare that to what the Office was before. And what it was when she came,
Ms Sukers: Okay. You have worked for over 20 years in the Office of the Public Protector and with a number of Public Protectors?
Mr Samuel: Correct: with all of them.
Ms Sukers: So have the number of labour disputes with staff and members being dismissed or being subject to legal action in labour matters…. how did that [compare] under the different Public Protectors versus Adv Mkhwebane. I may ask you a question that you don't really have an answer for – but in your experience, how did the numbers of those instances of disciplinary action / dismissals / legal action being taken by members of staff, how did it compare?
Mr Samuel: Yes, I'll be able to answer that question. There were disciplinary actions taken against members of staff at different times, throughout the three Public Protectors. The first one Adv or Judge Baqwa, it was characterised mostly by establishing the Office really, you know. There were not many. We didn't even have a fully fledged HR Unit; it was only one person doing an HR function. But as the years, you know, got on, we started… we had policies and directives in place, which amongst them was the disciplinary code and disciplinary policy. The cases where there, but they were not as many as they became during Adv Mkhwebane’s reign. I remember, I would chair some of the disciplinary hearings against staff members. I've had some in other provinces, in KZN and here in Cape Town, I've presided over those. And the general trend then, or that the numbers were, you know, the outcomes did not lead [to] dismissals. Where they did, they would have to be… the dismissal would have to be confirmed by the Public Protector. Notably, with Adv Madonsela, she would overturn a lot of those and her view was that we must find an alternative. She's not going to be responsible for denying someone and his family, his livelihood, when that person can be rehabilitated. Her attitude was really a motherly one, to say that when you consider that kind of a sanction, it must really be justified. I mean, as in dishonesty with money, you know, and so on, that goes to the trust of the employer in relation to that employee. So that was the trend. Equally now, with Adv Mkhwebane, all dismissals must be confirmed by her, but there were quite a lot of those. I'm one of the casualties. My colleagues, who will also come and testify, some of them there was a particular direction…that was the outcome she wanted with all the disciplinary actions. I'm saying this because all of those disciplinary actions taken at least against senior managers and some in middle management, have led to dismissals, which was a departure from the previous one’s attitude that we have to be very careful and not jump to that kind of sanction unless it is completely justified.
Ms Sukers: Okay. Mr Samuel, what has brought you here?
Mr Samuel: I was requested to come to the Committee and with that request being made I felt that it was my duty to comply and come and assist the Committee. That was how it was put to me, that ‘would you be willing to come and assist the Committee because you have deposed to an affidavit making some allegations, which are viewed relevant to what this Committee is going to do’. And so I agreed that I would comply.
Ms Sukers: Thank you for coming and thank you for your testimony.
Mr Samuel: Thank you Hon Member.
Chairperson: Thank you Hon Sukers. The next Member is Hon Nodada but we are going to pause before we go to him, so that we don’t break his questioning time. We'll take a 15 minute break… tea break and be back at quarter to 12. We'll start with Hon Nodada.
Chairperson: Before break I recognised Hon Nodada. You have the platform.
Mr Nodada: Thank you so much Chair. Morning Mr Samuel.
Mr Samuel: Good morning Hon Member.
Mr Nodada: I just have a few questions for you, Sir. Mr Samuel, you indicated to us that at some point in time you were suspended from your position and then later on reinstated after having taken recourse with the CCMA. What were your reasons for being reinstated?
Mr Samuel: Yes indeed, I was suspended and eventually dismissed, in 2020. But I was dismissed, following an internal disciplinary hearing that I could only attend for the first day and the subsequent five days or so it was postponed to a later date. I did not participate in the hearing during those days and I was eventually found guilty. The hearing continued and I was found guilty in absentia, based on the evidence that was there. I then challenged that at the CCMA; we went all the way to the arbitration. And effectively the hearing started from scratch there, and I was exonerated on all the charges.
Mr Nodada: Alright. Since you were exonerated from all charges, does this reinforce your belief that your dismissal was because you asked the Public Protector to resign? Or part of the reasons thereof?
Mr Samuel: Yes, it does.
Mr Nodada: Why do you say that?
Mr Samuel: Because that action was taken – the action to discipline me was taken only after I had asked the Speaker to launch an investigation and effectively / notably against the Public Protector as the head of the institution and of some of the operations within the Office. Even the comments from the Commissioner were that employers must not discipline in anger. And that is exactly what his observations were, that Adv Mkhwebane took issue with me because she was angry about the fact that I had lodged this complaint against her and the fact that that complaint had found its way in the media.
Mr Nodada: Alright. Now, just going to some of the stuff that you mentioned around the investigation on the Vrede report. You mentioned that there were findings that you initially made against politicians, but was subsequently removed from the report particularly on Mr Ace Magashule / Mr Mosebenzi Zwane. What were those findings that were initially removed from the draft report?
Mr Samuel: In addition to the findings that were made, even prior to that final report that I sent, there were findings against politicians, but they related only to their failure to take action as recommended in the earlier report of the AG. But the findings that I made, that I say were removed, were specific findings to the effect that both politicians cannot be divorced from liability, simply because there was an HOD as the accounting officer, that was the…you know… the face of what happened to that project. He could not have been acting alone, he must have acted in concert with the politicians, or at least on instructions from the politicians. Particularly because they refused to cooperate or give their… or subject themselves to investigation. I then proceeded to find against them based on the available information, which included the speeches they made in the legislature, as well as the public speeches they made, which effectively owed up – maybe you're saying they are taking ownership of the project, and then projecting it to the public as their project – doing what they were doing for the community.
Mr Nododa: And the Public Protector, after, as you mentioned in your evidence, that she then reinvestigated, you know, after certain pressure on that particular component of that report, is where you were indicating that she took about 18 months to two years? Were the findings of the Public Protector any different from what you found?
Mr Samuel: No, they were not. They affirmed largely that they did cover what I had found. And so, you know, they were not supposed to be very removed in the first place. But at least this time, she had, in fact, interacted with, according to the report, with the politicians' consent.
Mr Nodada: Alright. Now, let me just come to the call what you gave evidence on… around what you term is reckless and poorly considered litigation. Could you maybe state for the record as to what are the examples of what you refer to when you make a reference to reckless or poor considered litigation?
Mr Samuel: I'm referring to the cases that were decided up to that time that I lodged this initial affidavit, notably the comments made by the judges about her conduct in pursuing that kind of litigation and the fact that, you know, she relentlessly pursued that litigation from… in all forums, up to the highest court. And that the investigations against the President; against Mr Pravin Gordhan and so on, they were very topical at the time and it was a departure from… with the adverse findings made against her, they had more of a negative effect than a positive image for the Office. Generally, her attitude was that, in one instance, I can’t remember which report it was, she’s reported to have said to Mr Nemasisi and/or Mr Matlawe, that, we might be taken on review on the report as it stands. I can’t remember which report it was and her standard reply would be, ‘Let them take me on review’, and it was a question of not considering whether it was worth it or not. And it was just her approach that they can take me wherever they want. And the fact that she went all the way irrespective of the fact that personal costs were being made against her; I perceived that to be really reckless and not improving what we should be… or anything positive for the Office: in fact, it was a negative.
Mr Nodada: Just on that, Mr Samuel. If you go page 2079 of your affidavit, particularly 26.1.1. Are you there?
Mr Samuel: Yes.
Mr Nodada: Just on what you just mentioned now, 26.1.1, the second sentence reads: “The Public Protector caused the Office of the Public Protector to oppose most of the applications in face of where it should obviously have been understood as insurmountable grounds of review that would have made the outcomes inevitable”, is this in relation to what you've just mentioned now? And whether this should have been taken into account when dealing with these particular cases and, in particular, South African Reserve Bank issue?
Mr Samuel: Yes, it is in relation to that. A decision to challenge any finding against you, either as a person or as an institution, must be taken in your best interests or in the best interest of the organisation. And if one looks at the kind of issues that were being raised in challenging these decisions, one would have to make an assessment of whether or not you stood a good chance of winning, whether it is necessary to oppose an application for review. There are some cases where we did not oppose any applications for review, and they would end up being decided in our favour. For it to be confirming that the Office was right in making that kind of a finding. Yes, this was ill-conceived in the sense that it didn't take into account whether we had chances or we were entitled to make the remedial action that was being appealed against.
Mr Nodada: My second last question, Mr Samuel. I'm going to refer you to certain sections of your affidavit. But it's around particularly what this Committee has been asked to do. Yesterday, there was a narrative painted by or led by Mr Mpofu around accepting decisions made by the courts or magistrates making certain legal findings or decisions on individuals, and it was referring to your case in which you appealed. Now, would it be fair for this Committee… if you read on 26.1.2, where you indicate that the Public Protector made “disingenuous arguments, failed to observe the requirements of fairness during her investigation, and could reasonably be suspected of having been biased in the investigation when reading from the court judgments”. Would that be a fair conclusion that the Committee should make since that decision was made by the High Court?
Mr Samuel: Yes, I was merely repeating what the courts were saying and the effect that they were having on the institution.
Mr Nodada: So if we read these court judgments, would it be fair for us to take this conclusion that the PP might have been disingenuous in her arguments; that she had been unreasonable in her investigation and biased?
Mr Samuel: Oh, I might have misunderstood your question. But yes, now that I understand it, my view is that you are making an independent assessment and the case being made against the Public Protector, you know, is based on those judgments and what effect they had on the institution. It is, I believe, up to the Committee to take them into consideration or to reject them. But what remains is that they were made and those cases have been finalised. So as to whether they will add value to the assessment of this Committee, it's really up to the Committee to decide.
Mr Nodada: Let me put the question lastly to you this way. Would it be fair for an ordinary South African, who is maybe reading these judgments, to come to the conclusion of what the High Court, the Supreme Court of Appeal and the Constitutional Court have on various different cases? Whether it be the CIEX case; whether it be the President's related case; whether it be the Vrede Dairy report case, where courts have made remarks that the Public Protector failed to exercise her duties without bias. They even go as far as saying, for example, the “Vrede report has unduly and dramatically narrowed the scope, failed to investigate thoroughly and use information at her disposal”. So as an ordinary South African reading all of these that you have now cited as specific examples in what you call reckless and poorly advised litigation, would it be fair for them to draw those conclusions that were made by the court reading from these?
Mr Samuel: Hon Member, my view is that these comments are out there, they cannot be ignored. It would then be up to the… whoever consumes this information as in the public, as you say, to decide whether or not they view them to be reasonable or fair to be considered. I generally don't have any control over that because it depends from one person to the other. But for me, the cumulative effect of these comments, certainly make one think thoroughly whether or not this institution is being led by a person who is fit to lead it. Look, I would say, in and of themselves, these comments, they are not, they're not grounds for her to be removed or impeached. But, they should certainly be taken into account to the extent that they are helpful to the Committee.
Mr Nodada: No, thanks Mr Samuel. I was just asking those questions, because there was a certain narrative led yesterday that if a magistrate has ruled on something in the courts, we must take it as it is: if someone has been found to be guilty of assaulting someone, they're a criminal. So if you know these findings, if that is the case, then they should be considered. But in any case, my last question.
Chairperson: Thank you. I thought you had your last question?
Mr Nodada: Chair, I was going to ask something. But I must state on the record that I do have quite a few questions for the PP. Thanks.
Chairperson: Thank you. At least that's on the record. Thank you. Hon Hendricks?
Mr Hendricks: Thank you very much Hon Chair. Mr Samuel, thank you for responding and coming before the Committee to give evidence, it is indeed appreciated. Mr Samuel, in your view, the new Public Protector did not really make the cut for the appointment. Why is it your view that a panel interviewing did not know what they were doing? Was her appointment not a need to shake up the Office as the outgoing Public Protector was, in your words, a motherly figure? And, maybe what was now needed was a fatherly figure to deal with errant staff? Which seems to have been a feature in that particular Office and need for very strong disciplinary action to put the Office on a new narrative? Mr Samuel, four of the Public Protector’s determinations…
Chairperson: Just a pause. Just a pause Hon Hendricks. The witness, Mr Samuel, has asked if you could please do your questions one by one, so that he can respond adequately to your questions before you go to the next one.
Mr Hendricks: I understand.
Chairperson: Just repeat the first one for him, please.
Mr Hendricks: And the question is, in your view the new Public Protector did not make the cut, was it your view that a panel interviewing her did not know what they were doing and looking for? Was her appointment maybe not a need to shake up the Office, bring in a different kind of person, as the outgoing Public Protector was a motherly figure, which you seem to like? And what was now needed was a fatherly figure to deal with errant staff, because it appears just from what we've heard so far, that there were a lot of errant staff in the Office of the Public Protector that the previous Public Protector had to deal with and the new Public Protector had a different style to deal with it?
Chairperson: Thank you, let’s pause there. Mr Samuel.
Mr Samuel: Thank you Chair and thank you, Hon Member. I'm one of the people that were in support of her being appointed, I admit, and I said this to my colleagues as well, knowing her from previous… from the fact that we worked together and her performance at the interviews was, in my view, excellent. And after I listened to all the interviews and watched… I also came to the conclusion that she has aced it. And we were all happy, I was. But it was her conduct subsequent to that – during her term – that then, you know, turned around. Certainly at the time she was appointed she was… she deserved it. It is only practically now when doing her work and taking decisions, that view changed.
Chairperson: Thank you. Back to you Hon Hendricks.
Mr Hendricks: Hon Chair, four of the Public Protector’s determinations are the subject of this inquiry. In at least one of them, Mr Samuel, you were very closely involved. Can you list for the Committee the long list of positions or people that were involved, including even the think tank before she finally signed-off? And we now have a determination that…we say that she's not at the Office and that she might be fired. Now why should all of them involved in the loop in the chain, not be disciplined for contributing to a determination the Democratic Alliance considered horrific enough to ask this Committee to recommend to Parliament to fire her? You know, when everything was approved, they even poured champagne bottles. If it was horrific, should there not be a lesser penalty, other than firing, which you say was the hallmark of the previous Public Protector, the so-called mother? Because so many people are involved, should she not rather be disciplined? I don't know if there is such provision but assume there is – is discipline, for example, not better than suspension and obviously firing – a narrative or a position that you seem to support?
Mr Samuel: I was lost there. Thank you, Hon Member. But I was lost a bit there. But at least the last part means that I'm actually understanding the question. I think you will tell me in my answer whether I'm actually addressing that. But yes, for me, really, it is not for me to decide or to determine whether she should be dismissed. Maybe to borrow from your words ‘or not’. It is for the Committee and eventually, the National Assembly. If you look at my initial complaint or my request, it was for an investigation to be commenced and the investigation could have exonerated her or even found that my allegations were correct or others that, you know, might come forward and launch their own complaints. Equally with this Committee, if at the end of the whole process the Committee feels that there are insufficient grounds or… to justify from the terms of this Committee that she should be impeached, it is an outcome that follows a fair process. And to that extent, you know, I will accept it. I'm not… I have my views as to whether she's fit or not to run that Office, which I've made clear. But my views are not in any way to be taken as dictating to the Committee that she should be removed. It is a determination that is going to be made by the Committee.
Mr Hendricks: The question that you missed, and I’m sorry that it was a very long question, was that the Public Protector when making the determination, there were so many other people involved, and I even heard that there was a think tank involved? We would like to know which people were on the think tank, if you can recall? And, besides the think tank, who else was involved when the Democratic…when this particular matter, was registered, maybe electronically, with the Public Protector? Can you tell us once it was registered, normally electronically, with the Public Protector, who are all the names in the box that were involved, that eventually it led to a think tank that was consulted? And then you know, the buck stops with the Public Protector. And she made the determination, and now her head must roll and everyone else that was involved are now scot free. We would like to know who else was involved. Maybe they should also all be sanctioned?
Chairperson: You got that Mr Samuel. Please respond. Go ahead, if you have.
Mr Samuel: I will respond, you know, in the places of how I understand the question.
Mr Samuel: The people that are involved in the think tank or were involved are all the provincial representatives; all the heads of the investigative units at Head Office; and the Public Protector; and sometimes the Deputy Public Protector as well; and some investigators, senior investigators, where it was deemed necessary that they should be… especially those based at Head Office… that they should come and talk to their specific reports. If any action has to be taken against them, for what I understand from the question, to be that they must also be held liable? I really have no answer to that. I don't agree that they are to be held liable. I'm also… I was also included in participating in the think tank. Perhaps that is how the Public Protector would have felt that she was misled by the think tank. It is up to her to decide whether that conduct was within the disciplinary code and procedure and allows her to take action against all of us who sat in the think tank. That is how I understand your question.
Mr Hendricks: Just a last point for clarification, so we know that you were involved. And obviously what you said, Chair, we have to take into account. We know that there have been many, many members in the think tank that were involved. But before the think tank, there must have been people involved that led up to a report coming to the think tank? Can you take the Committee in your confidence and tell who these people are? Because then my view is that, you know, maybe they should also be put on the radar and to see if they contributed to what the DA is a horrific finding; so bad that the Public Protector must be fired?
Chairperson: Thank you Hon Hendricks. Mr Samuel.
Mr Samuel: It would be impossible for me to state who those people are. But I'm just putting it that the think tank was comprised of the people, the managers and senior investigators, that I have mentioned. That was standard; they had to be there. But if I'm to mention names, it would have to be in relation to specific reports, perhaps that were discussed on specific dates. In order to do that, I would need to go… and in order to obtain the minutes or the attendance register for those sessions. So it is really for me sitting here, impossible to mention names especially if there is no guideline as to which think tank and when. Sitting here, I don’t have that information.
Mr Hendricks: Thank you very much. I really appreciate your responses.
Mr Samuel: Thank you, Hon Member.
Chairperson: Thank you Hon Hendricks. I now recognise Hon Gondwe.
Dr M Gondwe (DA): Hello Mr Samuel. I have a few questions for you.
Chairperson: I don’t hear you as usual.
Dr Gondwe: I was telling him that I have a few questions for him, or not a few, but I have questions. Mr Samuel you stated in your oral evidence before the Committee, that in the course of the Vrede matter being investigated, you were instructed or directed by Adv Mkhwebane, not to make any adverse findings against politicians. Did she issue this instruction directly to you, or was it issued to you via your line manager? In the issuing of this instruction was there explicit mention of which politicians you could not make adverse findings against? Did Adv Mkhwebane also issue an instruction or a directive to the effect that you should not use the Gupta Leaks emails in the course of the Vrede matter investigation?
Mr Samuel: Yes, Hon Member. On the first question, or the first part of the question. The instruction was given directly orally by Adv Mkhwebane, to me, during the Vrede inspection visit. When I was asking her to authorise subpoenas for her signature "so that you can subpoena these two politicians". I mentioned them specifically at the time. Any reference to politicians there, at least as far as the Vrede matter is concerned, only referred to the two: Mr Ace Magashule was the Premier at the time; Mr Mosebenzi Zwane, who was the Member of the Executive Council for Agriculture at the time. And then subsequent to that, when I discussed it with my line manager, Mr Ndou, he also confirmed that he was given similar instructions. And I understand that he’s perhaps going to testify here. He'll probably talk to that himself, but he also confirmed receiving a similar instruction.
Dr Gondwe: The Gupta Leaks?
Mr Samuel: Oh, the Gupta Leaks, I think at the time that they came out, and there was an exchange about them, the instruction was… I was on sick leave following an operation and then, you know, I was copied in the emails, which is standard being the provincial representative, if I had anything..
Chairperson: Hon Hendricks please mute. Go ahead Mr Samuel.
Mr Samuel: I have lost track, Chair, of where I was.
Dr Gondwe: You were still explaining that…
Mr Samuel: Oh yes, the Gupta Leaks. I was aware of the instruction because, I think in the email that gave that instruction, it was sent to the CEO, so that…and various other members like myself were copied there. If my recollection is – it is one of the annexures here, maybe I could refresh by looking at it – but it was given in writing that it should be done. I think the file was already at Head Office at the time. It turned out that instruction, we in the Free State could not carry it out, but it was also withdrawn. A different instruction was given, subsequent to that.
Dr Gondwe: My second question is around the meeting between Adv Mkhwebane and the former Premier of the Free State. Did you find it particularly peculiar or strange that Adv Mkhwebane had a one-on-one, unminuted, unrecorded meeting with a Premier who was invariably an implicated party in the investigation? And did she then issue an instruction for you and the rest of the team not to make adverse findings against any politicians after or before this meeting with a Premier?
Mr Samuel: I will start with the last one. That instruction was issued after she had the meeting with the Premier. Yes, I found it peculiar that, you know, she invited myself and the CEO, specifically to go and introduce us to the Premier because one of the questions she asked me when I relayed the message that the Premier wants to have a meeting with her, was that she asked me whether I had met him. I said, ’No, I've never met him. I've made several advances just to go introduce myself since I came from Limpopo’, which was exactly the same gesture I made to the Premier then, I think was Mr Cassel Mathale, and to the DG of the province. So I thought, you know, it would also be good to meet them, introduce myself, so that when you start making inquiries, when they see my name, they know who's sending these. And it was peculiar, because that was the purpose, there was no… At the time I didn't think that it was, and even now, I don't think it was going to be about Vrede, but it would not have been strange that it is discussed. Certainly, for her meeting the Premier at the time, it was normal, she was already there, and he's one of the stakeholders, or at least in relation to the one part of the purpose of her visit. She had to meet the politicians and then the members of the public. There was nothing strange with that. It is only the fact that she came there to specifically… At least my involvement was to be specifically introduced together with the CEO and then we get there and we are not part of the meeting. And so the first question is what is it that is being discussed that I should not be hearing? Or why… And if Vrede came up, it would then have amounted to any investigative meeting, which should have entitled me to be there.
Dr Gondwe: My third question is the following: you stated in the course of your oral evidence before the Committee, that at some point you felt that Adv Mkhwebane had aligned herself, the Premier and the MEC, the former MEC, and she appeared to be wanting to protect them. Are there any other politicians other than these, that you felt she was aligning herself to and was wanting to protect them?
Mr Samuel: From the point of view that we, sitting in the Free State…I investigated or interacted with politicians, no, that was the only matter. So it was only confined to those two politicians. Elsewhere, you know, I really didn't have jurisdiction; you didn't really have jurisdiction. I don't know whether there were investigations, or whether she had meetings with the politicians involved. But with this specific one, she also had those meetings with them before issuing a 2018 February report. She also had meetings with both Mr Magashule and Mr Zwane. I gather that from the email correspondence here which says, “From the meeting we had yesterday with Premier Ace Magashule”. It then says to me there was a meeting, which these officials wrote this email where they're addressing her that… So yes, and I'm not involved in politics, but I do have political… I do follow the politics of the country, and so, you know, the media categorise people in terms of who they support and who they align themselves. In my view, certainly in relation to the Vrede matter, led me to that belief.
Dr Gondwe: Again, in the course of your oral evidence before the Committee, you refer to the Public Protector as ‘an aspirant prosecutor’, you also stated that you called her or you referred to her as an aspirant prosecutor, because you had previously worked with her. Where and when did you work with her when she was a prosecutor? I just want more details as to why you refer to aspirant prosecutor, as opposed to an experienced or a seasoned prosecutor?
Mr Samuel: Okay. I worked with… When I joined the Office in 2000, the Office was in its infancy stages of being formed. Adv Mkhwebane is one of the officials that came from the Department of Justice that was seconded to this Office. And so when I came to the Office, she was already, along with others.. and we had interactions and one of them I know, she's the one who told me, I can't remember in what context but, you know, we’d all talk there. I remember some of us there were magistrates before and we would discuss and I remember one of the ladies who was a prosecutor would say, for instance, she hates attorneys because, you know, we speak for criminals and get them free. And I would say that ‘it's because you come from a prosecutorial background and you're trained only to prosecute’. But certainly with Adv Mkhwebane, she relayed that to me. And so that is how I know that she was an aspirant prosecutor. I do not have any information of whether she was in fact a prosecutor or not, except for what I recall she having said.
Dr Gondwe: Okay.
Chairperson: Last question.
Dr Gondwe: Second last, please Chair. Regarding the Nkandla judgement, do you believe that the judgement opened the floodgates, in terms of the amount of litigation that was brought against the Office of the Public Protector, or in terms of the number of reports of the Office of the Public Protector, that were taken on judicial review by implicated parties?
Mr Samuel: I will not deny the fact that it… I would start off by saying that that door was always there and perhaps that judgement widened the door, particularly because some of the people that have an interest in whether or not they are being investigated and adverse findings might affect their livelihoods, are politicians. But prior to that, there were not many reviews, even though that door was open, there were not many reviews. The trend then came where politicians would want to challenge them, and in most cases successfully, because they now had an interest when prior to that they believed that our remedial action was recommendations and so they could simply be ignored and there was no need to even apply for a review. Subsequent to the Nkandla Judgement, it was imperative for them to remove this cloud of a finding against them in order to advance their careers. Yes, it did widen that door, but it was always there.
Dr Gondwe: My last question relates to the, I would like to call it the Limpopo assault or incident that you were charged…. internally charged with many years later. When the incident first occurred, what was the reaction of the Office of the Public Protector? Had the… I think I want to say had the issue of the assault being brought up by the Office at any time before you were internally charged I think it was in 2020?
Mr Samuel: I reported the incident. Firstly, telephonically immediately after it occurred. My instruction from the CEO – I had to go to the police station and report it and then thereafter file a written report to Head Office to the CEO, which I did. To the extent that the Office knew of the incident on that day, yes, they knew from day one. I've testified to the fact that these are both cases that I opened and the complainant opened – were thrown out. I did not see it fit to pursue that, because that was not my intent. I was not going to be running to court wasting time when I had a job to do. I really regarded it as a minor thing, and I… my feeling was that I did not assault, you know, this elderly man, I really did not. He is the one who I consider assaulted me, but I was not interested in pursuing that. And so it was only brought up and I was charged for it after, or as a result of me lodging this complaint, because even prior to me being charged, it came to the attention of the Public Protector, Adv Mkhwebane, and the HR Manager and so on three years prior to that, according to the evidence that was given at the arbitration. Even then they didn't take any action. So it was only as a direct result of me lodging this initial affidavit.
Chairperson: Thank you. Hon Hermans?
Dr Gondwe: I beg your indulge a last question please?
Chairperson: No, you did have your last question.
Dr Gondwe: No, last, last, please Chair?
Chairperson: Why? No.
Dr Gondwe: Please Chair, just the last question?
Dr Gondwe: I'm sorry, I forgot to ask you this. You mentioned that you do not have a security clearance. And you mentioned that under Adv Madonsela’s tenure, you were not required to have security clearance; it's only under Adv Mkhwebane’s tenure that you were required. I want to get an idea of the level that you were required to have… that there's top secret; there’s secret and there’s confidential. If you are to go for top secret, that means that you must be a person who in your day to day duties, you handle classified information. I want to find out the level of security clearance that you applied for, because you said you had applied twice for the security clearance. I assume it's from the SSA? I want to find out whether you know the level of security clearance as well as whether in your day to day you would handle classified information, because my assumption is that you applied for top secret?
Mr Samuel: Yes. So it is not only during Adv Madonsela’s term that we were not required to apply for clearance – with all the Public Protectors, it was never a requirement. It became a requirement only when Adv Mkhwebane came in. And in all the years that I've been with the Office, it has been sufficient. We are made to sign confidentiality clauses, which dictate that we do not disclose information about our investigations or operations and so on. And during and after our departure from the Office, we're not allowed to do that. And so it had always been regarded as enough. Certainly, I've never had… that was imposed in relation as opposed to applying for security clearance. But when we did apply for them, yes, in the two cases that I did the first time when I was in Lim… oh no, it started when I was in the Free State. Yes, the level that we were placed, we were required to apply for clearance, was top secret. And so we lodged our forms with the Security Manager in the Office.
Chairperson: Thank you Mr Samuel. Hon Hermans?
Ms J Hermans (ANC): Thank you very much Chairperson and greetings to everyone on the platform and in the House. Mr Samuel, referring to paragraph 3.1, you indicate that you believe that the present Public Protector had an orchestrated plan to destroy the Office of the Public Protector. Please expand on why you believe it was orchestrated? What made you to believe that it was orchestrated and planned?
Mr Samuel: Thank you Hon Member. I did not catch the paragraph you're referring to but I am familiar with what I said and testified to, so I will answer it exactly as I responded to it yesterday when I was being cross-examined. For me, the plan was that there was a purge of especially senior managers who had been with the Office over decades. And these are senior managers that were involved in the core function of the Office, as in investigations and reporting. The experience accumulated over the years meant that they had institutional memory. In order to destroy an office, that is one of the targets that one would have. For it to be orchestrated, it meant fire these senior managers and replace them with people that would be loyal to you, and do what you want instead of being loyal to the Office and their work. That is what I meant when I said there was an orchestrated plan, because the managers, especially the executive managers that were appointed thereafter, including, other managers, they either did not qualify to be in those positions and/or if they did, they pursued what you perceive to be her agenda of destroying the Office.
Mr Hermans: Thank you for your response. This is a very serious allegation. Would you say that this was done with other people or external forces? And if you believe that external forces were at play, which do you think those are?
Mr Samuel: No, Hon Member. I cannot link that to external forces. Maybe external forces to the extent that they were either seconded or they came to the Office, either temporarily as either advisors or some role. And there were some officials from the State Security Agency. I remember at some point, one of them came in to become the Acting CFO, if my memory serves me well. One official, who was released from SARS after facing serious charges in the disciplinary hearings, was released by SARS, and subsequently was employed by the Public Protector as her Chief of Staff. So I can't say that they came… except for those that were from the SSA. Yes, I can't remember some. Some acted in other roles as well.
Ms Hermans: Thank you, Mr Samuel. My next reference is in paragraph 3.6 you indicate that the assault charges against you were resuscitated in 2017. I know a Member has asked you about this before; was this before or after the strategic session you highlighted in paragraph 93 where the Public Protector, as it would appear implicitly issued threats or intimidation to you and other colleagues about the alleged misconduct?
Mr Samuel: I cannot recall whether it was before or after. But if I'm to take the fact that these comments were made as part of the opening remarks in a strategic session that we hold once annually, during October or November, I would say, and my recollection is that these charges were reinstated by the Magistrates Court in October 2017. If that is the case, it's possible that it could have been before or after, I cannot recall, but it was definitely in a strategic planning session, that much I remember.
Ms Hermans: Okay, so you won't say that it was… if there was a correlation in the timing, because you said it was before?
Mr Samuel: Certainly at the time we believed that, you know, she had not received this information in the course of… or at least, she did not receive this information internally. But remembering that this was in the STRAT, I will accede to a suggestion that it might have been after she came to know about it. That is informed by the fact that the Office received a summons in relation to the civil claim. I can't remember when it was because the summons was not served on me, it was only served on the Office, but prior to that, I was served with a letter of demand. So I cannot really place it, I would need to refresh my memory there. So it is possible that she came to know about this – specifically my assault case, prior to that strategic planning.
Ms Hermans: Okay. Thank you Mr Samuel. Then, with reference to paragraph 3.8, you expressly indicate that: “She lacks intellectual and legal knowledge”, which is a very serious allegation. Can you further expand? I know, you've spoken to it before in your testimony, but can you further expand on why you believe this to be true?
Mr Samuel: Paragraph 3.8, you said?
Ms Hermans: Yes.
Mr Samuel: My recollection is that I made these allegations and after making a particular allegation, I would give reasons why I am making the allegation. So I just want to refer there. Oh, yes, this is based on the fact that her conduct during the think tank sessions of not providing leadership or making informed inputs, which would demonstrate that she knows the issues, was not forthcoming. I remember only one incident where she was really leading – I can’t remember at what stage during the think tank, but we were discussing one matter that involved a foreign national applying for either citizenship or permanent residency – and she was authoritative in her recollection of the requirements and so on, in relation to the complaint because she had been responsible for that at the Department of Home Affairs. But on other issues, I cannot recall her. I mean, it is based on the other issues or other reports that she demonstrated that lack of legal knowledge.
Ms Hermans: But you don't think, Mr Samuel, you know, normally as a leader when you have a consultative process, which I think the think tank is, that you hold back as a leader so that you encourage others within the collective to share their views? You don't think it's a case of that happening? You think it's a case of ignorance on the matters at hand?
Mr Samuel: I battled to hear that question. Could you please repeat the question, I didn’t hear it.
Ms Hermans: I just want your take on sometimes a leader holds back when you have a collective like a think tank you hold back because you want others to share their ideas. You don't think that was a strategy? You think it was more because of ignorance on the matters?
Mr Samuel: Yes, and it is possible anyone can do that. But I don't recall any situation subsequent to that kind of conduct where she would come with her own direction, which demonstrates that she has perhaps looked at or thought about what her views should be on a particular matter. But it is possible, I’ll concede.
Ms Hermans: Okay. Thank you, Mr Samuel. You also indicated about the soaring legal costs that directly impacted the outreach clinics the Office of the PP would conduct in communities. Did this have a negative impact on the number of complaints that the Office received from the public? So did the numbers of complaints decline?
Mr Samuel: No, my recollection is that they did not decline, but the numbers did. I cannot recall the decline, but to the extent that we were not holding outreach clinics or conducting outreach clinics, which was one source of complaints coming into the Office, or at least giving advice. That did not happen. So maybe as a direct consequence of the shift being made from outreach clinics, the direct consequence would be that we were not going out to get complaints. But, you know, complaints were still coming in from direct visits to the Offices, or people lodging them over the phone – those that could afford. So I cannot authoritatively say that they declined. But certainly the trust in the Office began to decline.
Ms Hermans: Thank you. Chairperson, can I request that when the witness is on the floor that we don't have people going in and out of the door behind him? It is very distracting. Just my last question.
Chairperson: Yeah, it is your last question. Yes. And I have taken note of the issue you raised.
Ms Hermans: Yes. It's just related to the previous question. Do you think that it was malicious… that the Public Protector acted maliciously when the number of outreach clinics were reduced because of lack of budget? Do you think it was malicious?
Mr Samuel: I would say yes. I would reluctantly say yes. You know, because the outreach clinics are part of our outreach programme, which is the only means that we were able to access or one of the means we're able to access communities as required by the Constitution. So changing that, for me, is effectively limiting or closing the door to those members of the communities that we cannot or that cannot reach our Office by any other means. So malicious is really a strong word, but you know, to the extent that it was self-serving, I would rather replace it with that word. But malice, I cannot really. I withdraw my earlier suggestion that it could be. No. I think it’s too strong a word.
Chairperson: Thank you. Thank you Hon Hermans. I recognise Hon Manketsi Tlhape.
Ms M Tlhape (ANC): Thank you Chair and good morning to Mr Samuel. Mr Samuel, I just want to go back to your main evidence: the issue of the meeting with the Premier. You indicated in your evidence that the PP at first did not want to meet the Premier. But after receiving a phone call, in your presence, she immediately changed her mind. Did you inquire from her on the day, what or who made her change her mind? And if not, why not?
Mr Samuel: No, I did not inquire from her. And as to why not: I did not think it necessary to question her. Just like when she said she would not meet with him: I did not ask why. And so subsequent to that, when she changed her mind, I could not even ask. I think it was her prerogative to decide who to meet and who not to meet. So I had no issue being involved in that. I had relayed the message. So for me, that was sufficient.
Ms Tlhape: Okay, the previous witness indicated that for meetings as such, there were preparations that were done beforehand. Just want to find out from you, did you prepare discussions that you were going to hold with the Premier in the meeting that was scheduled? Do you have anything that you wrote as to what should be discussed. It was indicated by the previous witness that they will always prepare some notes as to what has to be discussed? If you didn't, why didn't you do that? Or if you have, are we able to know what is it that you prepared for that meeting?
Mr Samuel: To my understanding, the previous witness, you might be referring to Mr Kekana; and my recollection is that he specified the kind of meetings where the preparation would be necessary. And those would be investigative meetings with the politicians. My understanding of the meeting she had with Mr Magashule was that she was going to, apart from whatever she was going to be talking to him about, was going to introduce me and the CEO as part of the stakeholder management, stakeholder visits, it was not an investigative meeting. So I did not prepare anything for the meeting because it was only about introduction. And my thinking was that after that introduction, and the Premier gets to know me – at least he has been introduced – he would perhaps warm up to cooperating with my advices in relation to investigations. But that specific meeting, I did not regard it as an investigative meeting. So there was no preparation for it.
Ms Tlhape: Thanks Mr Samuel. That takes me to paragraph 139.3, regarding the meeting scheduled between the PP, yourself and the CEO, you also indicate there that the PP had a private meeting with the Premier of the Free State. Talking about stakeholders, as you just alluded to, was it usual for the PP to privately meet with politicians while conducting investigations?
Mr Samuel: Not while conducting investigations, but as part of the stakeholders, which that was: it was usual. So there was no… we understood that we had to prepare a programme for both events, as I've testified that it was the meeting with politicians, and then with the outreach office and with the members of the public. Sometimes it would be that we would meet the members of the public first and then the politicians where we knew that the meeting with the public would generate issues that she might want to take up with the politicians. Those meetings would really take place, you know, besides the formal stakeholder address, as in the legislature, she would be in the holding room with politicians but we were always present in those meetings. I’d be present as the host, you know, hosting her in my province. I would invariably get the role either myself or the Spokesperson to introduce her to the politicians or the leaders that were in the holding room. It was not only confined to politicians. But even after meeting with the Premier at the time in his Office, she did go into the holding room in the legislature. And she did have that meeting with him. And I was also not part of that. So as to whether it was usual, yes, it was usual but not in relation to investigations.
Ms Tlhape: Now, are you saying for this set meeting that it was between yourself, PP and CEO, that she had that meeting with the Premier of the Free State… was a normal kind of thing: there's nothing untoward, there's nothing unusual about it?
Mr Samuel: Ordinarily, there would be nothing untoward about it. My gripe is with the fact that I was specifically invited to be introduced, to be present at that meeting to be introduced. I'm not saying that she was not entitled to do that. All I'm saying is that for the purpose that I was there and I was called for, it did not take place. She could easily have said, ‘No, I've changed my mind. I'll go meet with him and I'm going to go alone.’. I would still not question that. Because I would not believe that it is about an investigation, which would then entitle me, especially if it's an investigation that I'm involved in, which would then be normal for me to be there.
Ms Tlhape: Thanks Mr Samuel. Thanks for the opportunity Chair.
Mr Samuel: Thank you.
Chairperson: Thank you Hon Tlhape. I now recognise Hon Zungula. Just before I go to you Hon Zungula, I see Hon Peters you had your hand up? You’re still on the list. Peters? Hon Peters?
Ms D Peters (ANC): Yes Chair, should I speak now Chair?
Chairperson: I have you on the list, I am now recognising Hon Zungula. I thought there was something you wanted to raise before you speak.
Ms Peters: No Chair, thank you.
Chairperson: Okay. You are on the list. Hon Zungula?
Mr Zungula: Thank you Chair. Mr Samuel, perhaps I could start by asking, do you have any evidence to support your claim or suspicion that the PP received information about your assault case from the State Security Agency?
Mr Samuel: No, I do not.
Mr Zungula: Okay. In your view, you state in point nine of your affidavit that based mostly… your affidavit, it is hearsay. It is based on hearsay, is that correct? I can read it out for you if you are struggling?
Mr Samuel: No, I'm not struggling. Could you just repeat the reference you're making? Which paragraph it is? I did not get that.
Mr Zungula: Point nine, that your affidavit is largely based on hearsay.
Mr Samuel: Oh, you mean my supplementary affidavit?
Mr Zungula: Yeah.
Mr Samuel: In some parts it is based on hearsay and I do say in my affidavit that it is based on hearsay which information I have no reason to doubt and can… might be supplemented if the sources that I got it from being colleagues are going to come forward and [be asked] questions… They will then confirm that they are the ones who gave me some information, you know, particular information which I have testified about here. I am making the point that even though it is hearsay it is information that can and should be considered. You know the rules against hearsay evidence are not in my view applicable to this forum, as far as the advice I received.
Mr Zungula: Okay. No, I understand you perfectly. Now you have some matters before the courts right?
Mr Samuel: I don't understand that question. Are you referring to me personally?
Mr Zungula: Yeah, you personally.
Mr Samuel: Yes, I do. There are two matters I have before the court.
Mr Zungula: Yeah. And you would want the judgement there not to be based on…
Mr Samuel: Not to be based on what, justice? Did you say justice?
Mr Zungula: Hearsay judgements.
Chairperson: Just repeat your point Hon Zungula.
Mr Zungula: The outcome of those court processes, you’d like those outcomes not be based on hearsay?
Mr Samuel: Yes because those are formal proceedings in a court of law, which exclude hearsay evidence if it is not corroborated by any other means.
Mr Zungula: Okay. Alright. No, let's move on. So in your view, what should happen to investigators who are charged with sexual harassment and breaching confidentiality?
Mr Samuel: In my view, there should be consequence management against them, no doubt. I am strongly as a manage, and even personally… I strongly believe that action should be taken against them but at least they would then have to be given an opportunity to defend themselves and rebut any evidence at their disposal, if they have any, against those allegations. The mere fact that the allegations are made against them, does not prove that they have done that. I've had a lot of complaints, for instance, from some female complainants in departments that would come forward and say, ‘I was forced to do a certain thing because this particular official who’s my senior made advances to me that I rejected’. Invariably, my experience is that these allegations would happen behind closed doors, and with no one else being, you know, able to corroborate whether that happened or not. And even from the complainant, there would be no evidence upon which you can start investigating and so, making allegations of sexual harassment against anyone, are serious. And in most cases, they are made only for the fact that they will be there in the public against the person, and there'll be no interest in pursuing them, because there's no evidence to pursue them. I know I'm very afraid of those kinds of allegations being made against me. Where I feel that my interaction with any person that I'm not in agreement with, generally when they speak to me in my office, I always leave the door open to make sure that at least people go past and see that – especially people that I'm taking any kind of disciplinary steps against – so that later on they don't turn around and say that I'm doing that because they refused my advances. That is how I perceive them to be serious. The mere fact that they can be put to a person without proof can destroy them.
Mr Zungula: Thank you. No we are in agreement, that action must be taken. Now in point 132, you state that Adv Madonsela was not happy with the insufficient attention paid to the role of politicians. Now, was it practise that you follow the evidence or you follow people when doing investigations?
Mr Samuel: I think it is a bit restrictive to say we follow evidence or not. But yes, we do follow evidence. And that evidence will come in various forms during an investigation. Some of that evidence might point to something else that was not part of the complaint. Or as we are allowed as the Office, we can, out of our own volition, start an investigation if information comes to us that there has been some kind of action or conduct that we have jurisdiction to investigate. Getting an instruction from, as you say, a person of the stature of the Public Protector, the executive head of the institution, would not be wrong because in the course of his or her interaction with different people, she might have some information that we need to consider. So giving an instruction about any particular action would not be odd or out of the ordinary.
Mr Zungula: So in this case, you followed people, not evidence?
Mr Samuel: There were allegations especially and interest that was in the media. The point I'm making is that in the course of any investigation, you invariably get to acquire information that you should not exclude, simply because of the source of where it comes from. If it is brought to your attention, and later on you did not take that information into account, you might reach an unfair or incomplete conclusion.
Mr Zungula: However, I just want us to agree that in this particular case, the instruction because as you're doing the investigation, when you find evidence, evidence can point you to people. However, in this case, it was not the evidence that pointed you to people, it is the instruction from Adv Madonsela that you need to follow people. But let's move on, in point 139.4, you say "I can only speculate that the PP and the Premier discussed the Vrede investigation". Now, would it be fair that the Committee now must take that speculation from you, as you're putting it, and maybe it must consider that indeed there was a discussion between the PP and the Premier on the Vrede investigation – just because you are speculating? There's no evidence. You can't back it up with anything – just by you speculating?
Mr Samuel: I'm going to ask you, with respect Hon Member, to please repeat which paragraph you were referring to?
Mr Zungula: 139.4. I can read it for you?
Mr Samuel: The speculation came from me. And I'm not in any way by stating that, suggesting for the Committee to take my speculation and make it its own. My speculation is based on the conduct of the Public Protector in relation to this investigation and the fact that she met with the Premier and refused to authorise issuing subpoenas, which was part of the tools I required to complete the investigation. So I'm by no means suggesting that is a fact. As I say, it is a speculation; how the Committee treats it, is up to the Committee.
Mr Zungula: Alright. But the fact that it is part of your affidavit, to be considered, it means you do want the Committee to consider – but let's move on. Point 59, you talk about the outreach clinics. I want to find out how many people you were able to reach through the outreach clinics and how many people were you able to reach through the radio interviews. Now, do you not think that the radio interviews, one, reach more people? And at the same time, there was a lot of cost reduction in utilising the radio interviews more than utilising the outreach clinics?
Mr Samuel: Hon Member, I do not have the figures in front of me of how many complaints we received flowing from the clinics and flowing from the radio interviews. The point I'm making and this is my evidence that, yes, there may have been a cost savings in cutting down or even cancelling those outreach clinics. But that went, you know, straight into the face of the constitutional mandate that we should reach communities. And it had been working well up until that time. And so in terms of figures, yes, they did decline. That is perhaps why even the targets were reduced. As a direct consequence of those savings, that money was then channelled elsewhere into litigation, that is the point I am making.
Mr Zungula: Litigation that is necessary.
Mr Samuel: We will differ on that one, Chair.
Mr Zungula: So you don't think it is necessary for the Office of the Public Protector to defend a report they've investigated? A report that they think from their perspective that they follow the law?
Mr Samuel: There is nothing stopping us and in some cases may be necessary to do that. But the decision should be taken with due regard to all factors and what the outcome should be – the desired outcome you want to reach and weighing your chances of you achieving that. Just taking a blanket approach to say we will litigate irrespective of whether…without taking into account any, possibilities of losing or winning, it for me is irresponsible. As you correctly know, I've also lodged, for instance, an appeal against the criminal outcome of the case. I did that because I fancy my chances to be great that, you know, another court will come to different conclusions. I didn't do that simply because I felt aggrieved. If left hanging, however minor it is, it is serious because it has the effect of me being labelled and seen as a criminal, particularly when I believe that it was based on the wrong finding. So there is nothing wrong with that being done.
Mr Zungula: What… Okay. Two questions on this point. Firstly, what if…
Chairperson: That will be your last two questions.
Mr Zungula: Okay. What if the counsel advises that there are good prospects of success? That is my first question. Maybe answer that, then I can ask the last question.
Mr Samuel: Yes, it is normal for anyone or any institution to ask counsel and to ask either a legal opinion whether formally or informally, and lawyers will always differ about the chances of any particular case. We always joke that, you know, there is no lawyer that has one hand. A lawyer will tell you that on the one hand, this is what the law says but on the other… and for them, in some cases, with all due respect my colleagues and I'm not in any way inferring that this was the case but a lawyer, when when when the first thing they will they will see when you consult them about a case would be an opportunity to make money. And in some cases, yes, they will genuinely give an honest opinion. But it is there, it does happen.
Mr Zungula: Okay, then the last question on point 197, you say you have a criminal conviction that is stated in your initial affidavit. Now, based on the lack of credible evidence from you, and the fact that you are saying in many places that is either hearsay, or you are speculating; would it now be fair for the Committee to take all of your contributions to this process in good faith, whereas you've got a criminal conviction?
Mr Samuel: Chair, I believe I have answered this question at length when I was being cross-examined, that I'm not excluded from… I cannot be… a door cannot be closed to me for giving evidence simply because I have been found guilty, which guilt I am challenging in an appeal. My view is that I'm unfairly being labelled a criminal so that the value of my evidence would be diminished. I don't have any… I deny that I'm a criminal and the fact that I have been found guilty, and as I say, which I'm challenging, should not and it does not exclude my role in giving evidence here.
Mr Zungula: Chair, I would like to state that I want to register… that I want to ask questions to the Public Protector. But Mr Samuel, it is not me that is saying you are a criminal. It is your affidavit that you are saying you have a criminal conviction. Thank you Chair.
Chairperson: Thank you Hon Zungula. Your intention is registered, as was Nodada’s intention. No Gondwe, no Gondwe. At this point, Hon Zungula has taken us to lunch. We'll be back exactly at 14:00 and start with Peters, Maotwe and the three others. We’ll be able to finish those five. Thank you Hon Members, we adjourn for lunch. At 14:00 we return.
Chairperson: Thank you very much. Mr Samuel, your mic, switch it on. Hon Peters, I now recognise you.
Ms D Peters (ANC): Thank you very much Chairperson. Before I continue with my questioning, may I be allowed to switch off my video?
Chairperson: We now can see you. Now you can switch it off.
Ms Peters: Thank you Chair. Thank you very much Chairperson and good day Hon Members, as well as Mr Samuel. Thank you for availing yourself to the Committee. Mr Samuel, my question is with regard to your concern about the high budget of legal fees, which during the 2019/20 period was R10 million. You further characterise this as reckless litigation in your evidence in chief. Would you say this is indicative of a Public Protector who did foresee litigation because she knew her conduct was reckless and did this deliberately?
Mr Samuel: Sorry Chair, I'd like to ask that the question be repeated, there’s a part I missed. I could not hear, especially where the question starts. The background, I heard.
Chairperson: Okay. Repeat your question Ms Peters.
Ms Peters: In paragraph 5.3, of Mr Samuel’s affidavit, he expressed concern about the high budget for legal fees, which during the 2019/20 financial year was R10 million. You further characterise this as reckless litigation, in your evidence in chief. My question to you is, would you say this is indicative of a Public Protector that could foresee that litigation was going to be a major budget item, because she knew that her conduct was reckless: and did this deliberately?
Mr Samuel: Yes, thank you Hon Member. Based on my earlier evidence that when one considers whether or not to litigate, there are many factors to take into account. And certainly the cost attached to that litigation is a huge factor to consider, especially in relation to giving consideration to your insufficient budget, generally as an Office, and the main mandate of the Office, which is not to litigate. So I think the failure to take those considerations and the chances of success and so on, would, in my view, amount to that reckless litigation.
Ms Peters: You also expressed concern that the budget was overspent with about R17 million. I want to know whether in the previous period, the previous Public Protectors or the Public Protector Office, never had a situation where they overspent the allocated budget for litigation?
Mr Samuel: Yes, that is so we never had to… there was an amount budgeted, but very less, even less than R10 million. But we had definitely not exceeded that at any stage.
Ms Peters: Still on the financial matter, Mr Samuel. Why do you believe that the road shows that the Public Protector undertook were useless and fruitless?
Mr Samuel: I cannot say that they were useless and fruitless. I think it is necessary that the Public Protector, as the executive head of the institution, should be seen. Not only be known about or seen on TV, should actually be seen live by stakeholders that are important to us as members of the public especially, and the politicians. I have no issue with that. I think it is necessary to engage with those stakeholders, so it would not be fruitless in my books.
Ms Peters: Okay. My next question is, Mr Samuel, you bemoaned the fact that investigators had been confined to the office and operating without vehicles. Do you think that this was done deliberately to weaken the Office? Or can it genuinely be regarded as an office that was underfunded and lacked resources?
Mr Samuel: We have always, throughout the years, certainly throughout all the Public Protectors, we have always maintained that our budget is insufficient. But there are other factors that make it insufficient. And with every advance we made to Treasury or elsewhere to increase our budget, we had resistance – generally told to make do with what we have. Engaging in litigation in our books, took a huge chunk of what we would have had to expend elsewhere in the pursuit of our mandate, than wasn't necessary. I hope I've answered the question.
Ms Peters: You did answer Mr Samuel. Mr Samuel, you gave evidence that the Public Protector did not want any findings against politicians. Considering the removal of the findings against the then Premier of the Free State Magashule and MEC Zwane of maladministration, which you made in the revised draft report, do you believe through this, that she tried by all means to protect politicians at the expense of the public?
Mr Samuel: Yes, I do.
Ms Peters: Considering your allegation on how adamant the Public Protector was of exonerating politicians, would you now say in hindsight, she was influenced by them?
Mr Samuel: I cannot state that as effect. I'm not aware of her, you know, of them putting pressure on her. I'm just surmising from the fact that she wanted those findings removed, especially under circumstances that happen after she had met with them. It led me and it's still my belief that she sought to protect them, but as a direct fact of them saying to her that she must not find against them, I cannot state that as a fact. But her conduct certainly suggested that she was protecting them.
Ms Peters: Mr Samuel, in paragraph 26.5 of your main affidavit, with regard the Financial Sector Conduct Authority report, you indicate that the Public Protector had agreed that the report should be set aside. Did you inquire from the Public Protector why she decided otherwise?
Mr Samuel: No, I did not, Hon Member.
Ms Peters: Did you raise your concern in relation to the previous issue, the frivolous and vexatious litigation that led to the soaring costs of the Office of the Public Protector of South Africa?
Mr Samuel: Not with her, but I did raise them with, you know, in the management meetings when I noticed that we were incurring more and more and higher expenses in terms of litigation.
Ms Peters: Okay. And did you, at any time, Mr Samuel, during the period when the Public Protector abolished the think tank, suggest that this not be done considering the important role that you said, and the previous witness said, it played in ensuring the reports are beyond reproach?
Mr Samuel: No, I did not. I must state that throughout the time that the Public Protector has been in Office, she has always maintained a buffer between us in the provinces and herself. She would communicate to us directly only through emails if she wanted to, but generally she would approach the executive managers and then the executive managers will be the ones communicating with us about whatever she wants. So, directly, I've never done that, because that door was never open.
Ms Peters: Okay. With regard to the reference to the Vrede farm inflated prices of the gate, the basic structure of the guardhouse, the cows and milking parlour, you give an indication that, in your view, the pictures indicate that the R2.6 million spent on the security gate and the guardhouse is not of market value. In your view, it could have been something like R50,000. You say that the R30 million spent on milking parlour, it's supposed to be around R7.2 million. You say R6.2 million what was spent on cows actually gives you a picture of R3.4 [million] that it could be. I just want to know from you; you say the pictures were missing from the report and yet they were there in the April 2017 report? Did you raise this issue with the Public Protector?
Mr Samuel: No, I did not.
Ms Peters: Do you think she was aware that the prices were inflated?
Chairperson: And that will be your last question. Go ahead Hon Dipuo.
Ms Peters: It's a follow-up Chair.
Chairperson: Okay, please go ahead.
Ms Peters: I wanted to know whether Mr Samuel thinks that she was aware that the prices were inflated. And that he thinks that she consciously and deliberately removed the matter of the cost of these items from the final report to water down the report?
Mr Samuel: I did know that… I do not know that as a fact that she knew that they were inflated. But my view is that anyone seeing those pictures, and with me having been there and seeing the actual structures, especially the gate, then the guard house. I'm making that assessment and she was there as well, you know, when we did the inspection, to any reasonable person who perhaps has a house or some kind of investment in terms of building, you can make an assessment that this is not worth that amount. It is certainly… There is nothing… It's a manually operated gate made out of a devil's fork irons. And even the R50 000 it might be proven, if we thought of getting quotations, it might have proven to be exaggerated, or perhaps even lesser. But certainly with the other items like the milking parlour and so on, we got that information from the Cattle Breeders Association. We had no reason to doubt their bona fides about the value they placed. But to be direct, even with that one, I wouldn’t know whether the Public Protector would make that finding. My consideration and hers might be different. But if there was an issue, it should have been at least taken up with us, who were making this finding in the report.
Chairperson: Thank you.
Ms Peters: Thank you Chair, and thank you Mr Samuel.
Mr Samuel: Thank you.
Chairperson: Thank you Hon Peters. I now recognise Hon Maotwe.
Ms O Maotwe (EFF): Thank you very much Chair. Good afternoon to your good self and the Members of the Committee, the Public Protector and her team and the witness. Mr Samuel, I think this question has been asked, but maybe differently… but for the record, I would like to post it to you and I would appreciate if you could respond to it. Did you write the affidavit yourself? Because you mentioned that you have not read many of the judgments against the PP, but you made reference to them in your affidavit. How is it possible that you write and cite something that you don't know about; that you have not read about?
Mr Samuel: I did not hear her. I'm struggling to hear this Hon Member but I believe the question is whether or not I drafted the affidavit myself. The initial one, yes, but the second one I did not draft it myself. It was drafted, as I said, by the… My belief is that it was drafted – because he’s the person I was interacting with – by the assistant to the evidence leaders, based on the information that I had given them and what they had retrieved and the draft was sent to me to look and read through. I did that over two days to satisfy and made some changes. Yes. To the extent that it was drafted with my direction, I agree that physically it was not drafted by me but it is my affidavit.
Ms Maotwe: I'm made to believe that you are a legal practitioner, a qualified lawyer for that matter. So yesterday, you admitted that some points that you made in a statement that the Rules of the Committee..
Chairperson: Just reposition yourself Hon Maotwe, please. There seems to be a bit of an echo there where you are. Maybe just come closer to the mic so we can hear you properly. And then start again on your second question.
Ms Maotwe: Okay. Can you hear me better now, Chair?
Chairperson: It's better now. Can you hear, Mr Samuel?
Mr Samuel: Yes, I can hear.
Ms Maotwe: No, thank you Chair. I was saying we are made to believe that Mr Samuel is a legal practitioner and a qualified lawyer for that matter. Who yesterday admitted that some points in the statement in the affidavit, like quoting the Rules of the Committee, he has not read them, he has never read the rules. Now, are you not perjuring yourself Mr Samuel by affixing your signature to an affidavit whose contents you cannot fully vouch for? You just said now that the second affidavit, it was drafted with the assistance of the Evidence Leader, but… and you can't vouch for that fully. So are you not perjuring yourself?
Mr Samuel: No, I’m not.
Ms Maotwe: How so? Because by signing an affidavit, which gives specific details from judgments, which you have never read, which could be misleading to the public and to the Parliament, that should be viewed as perjury, isn’t it?
Mr Samuel: I’m going to differ with you and dispute that I had never read the judgments. I did state that at the time they came out I read them. The only thing that I had not done was at the time the affidavit was drafted, I did not revisit the judgments. But for the fact that I referred to the comments made by the judges and that is all that I needed to confine myself to in the affidavit. It was the scathing comments. The rest of the judgement and discussing it I don't consider it to be necessary to make my point. It was not based on the whole judgement; it was based on the specific comments made and those stand because they're their public knowledge now.
Ms Maotwe: So yesterday, when you're responding to the cross-examination, you said that your affidavit is made up of your own recollection of events, and from the emails extracted by the Evidence Leader, from the PP server. Now, based on the fact that you were fed this information, particularly on the second affidavit, by evidence leaders, don't you think it somehow compromises your reliability as a witness?
Mr Samuel: No, I don't think so. And I deny that I was fed that information.
Ms Maotwe: How do you explain your earlier response of saying that it was deposed by the evidence leaders? You just went through it and checked it for yourself? How do you reconcile that?
Mr Samuel: It was prepared for me, based on information that I've given, and there is nothing wrong with that. I don't know how much of practice you know but in any situation, even for myself as an attorney, if I'm involved in any proceedings, where an affidavit would be required of me, it will be prepared by my attorneys, by my lawyers or advocate. It is perfectly…because they know what needs to be zoomed into. By my direction, it was to go into those comments. If perhaps that is viewed by anyone to be a perjury, I'm open to having it tested. To the extent that if I'm alleged to have perjured myself, let’s test that in the court
Ms Maotwe: Yeah, no, the testing will be done not by me, but by people like you. And I'm sure they will come to some sort of conclusion. So let's pass on that one. You mentioned that you didn't like Adv Mkhwebane management style. Is that the reason you felt the way you felt such that you even wrote to the Speaker because you do like Adv Mkhwebane’s management style? And as such, she must then be taken through the process of impeachment.
Mr Samuel: Could you please repeat the first part of your question, I didn't hear what you're saying. I did not like about…
Chairperson: Leadership style.
Mr Samuel: Yes, I did not like it. I did not like it. But that is not a reason for me being here, or maybe mentioning it in my affidavit. That was not the intention of having her impeached. I do make the point that in my opinion, and to the extent that it is stated in my affidavit, the initial affidavit, I do not regard her as fit to run that Office. But that is not the same as saying that she must be impeached. That was certainly not my intention, or the purpose of me deposing that affidavit. That is a determination that will and should be made by the Committee of which you are a Member and you will then put whatever value to it, like every other Member.
Ms Maotwe: Yeah. So earlier on, you testified that you are one of those who supported her when she was in the run for the PP Office. And then it's only after being appointed that you started having issues with her. Am I correct?
Mr Samuel: That is correct. Yes.
Ms Maotwe: Yeah. So earlier on you said you didn't have a problem with her leadership style. How is that… When did you realise that? Is it after she was appointed? And what caused you to then have second thoughts about her leadership style that you vouched for and you encouraged during the running of the interviews for the PP Office? What has changed?
Mr Samuel: Hon Maotwe, you misunderstood me. I said when she was interviewed I thought she did very well and she, I used the word, she aced the interview: that had nothing to do with the leadership style. It was questions posed to her, as it was done to every other candidate. Her leadership had not started of the institution. It only started thereafter, so that is why when she was involved in the leadership of the Office, that my opinion changed. But at the time that she was appointed, it had nothing to do with her leadership style. It was not apparent at the time.
Ms Maotwe: Okay, I won't push you further on that one. That's fine, in the interest of time. Now, Chair, Mr Samuel mentioned that Adv Mkhwebane engaged in reckless litigation, because she insisted on defending reviews against her reports, as if it is not in the best interest of the public, that the PP serves to defend against entities that may have caused harm to the very public. Now, why do you, Mr Samuel, see that as reckless litigation? What made you think that's a reckless action by the PP?
Mr Samuel: Chairperson I think I've answered this question more than once, on a number of occasions. I've stated that I formulated that view, based on the fact that some of this litigation was not necessary for the Office to be engaged in. It was ill-considered in that the prospects of whether or not we're going to succeed was not taken into account. And the amount of money that was going to be expended pursuing that litigation was not considered…was completely ignored. And so the budget was then diverted to finance that litigation. For me, that is reckless.
Ms Maotwe: So have you practised before, Mr Samuel? Have you stood in court and taken the case to court and won it or lost it?
Mr Samuel: Yes, I have.
Ms Maotwe: Have you felt that some of the cases that you've lost, you might want to pursue them still?
Mr Samuel: Yes, I have.
Ms Maotwe: And that was your sole…
Mr Samuel: I don’t understand when you say, ‘still’, but at the time, yes. Some I did pursue, yes.
Ms Maotwe: That would have been your decision, right, guided by whoever is around you like your legal counsel or whoever is around you, isn't it? Isn't it correct?
Mr Samuel: That is correct.
Ms Maotwe: So why do you see it being wrong when it's done by the PP when she received some advice, which she felt very strongly that she can challenge and litigate? Why should it be your problem, because you know that you are not the PP. And at the time, the PP felt that it was correct for her to do so?
Mr Samuel: Chair, we are an institution of integrity that investigates and finds similar conduct against either departments or officials, we hold them to a standard that we ourselves need to also uphold. It would be unprofessional or unreasonable of me, when I can make that determination and put it in my report for final signature by the Public Protector, that I cannot allow a situation where we also need to be held to that standard. The fact that a person is in a position of authority to make a particular decision does not mean that he or she must make it recklessly without regard to the fact that what we're spending here is public funds. We need to account for those.
Chairperson: Your last question.
Ms Maotwe: Yeah. My last question would be, Chair, it's on the issue of the party. Is there anywhere in the laws of this country that dictates who the PP can invite to the party and not invite to the party?
Mr Samuel: No, there isn't.
Ms Maotwe: Okay, thank you, Chair. That's all.
Chairperson: Thank you Hon Maotwe. I now recognise Hon Skosana.
Mr G Skosana (ANC): No, thank you very much, Chair, and good afternoon to everybody. Mr Samuel, yesterday when you responded to Adv Mpofu during cross-examination, he asked you whether you read the Independent Panel's report, and you responded by saying you didn't. My question is, is it not strange that as an aggrieved person who had, by that time already launched or filed his affidavit to the Hon Speaker of the National Assembly, regarding your request perhaps to get the investigation done in the Office of the Public Protector? Though your intention, like you said, was not about the issue of impeachment, and so forth. But your intention was to get an investigation done in the Office of PP. But now, here is a process initiated by Parliament of appointing an independent panel and that independent panel issued their report. So, was it not strange that you did not read that particular report?
Mr Samuel: At the time, and I would go as far as saying even now, there is nothing strange if I did not have any interest in that report, because I did not lodge my request, with a view to impeachment. For me that [panel] concerned impeachment and nothing else. I got to learn that my affidavit, you know, also served there. And I was only interested in knowing what was said about my affidavit, I did not have to read the whole report to know what was said about my affidavit. So I did not have that interest.
Mr Skosana: Okay. The next question in paragraph 19 of your second affidavit, the one that is before us, you unpack the general operating processes of the Office of the PP and you specifically indicate at paragraph 19.6, that if circumstances warrant, the PP considers and signs-off reports. So the question is under what circumstances does this normally happen?
Mr Samuel: Normally, under circumstances where we make, you know, we investigated or we classified the report as high-profile [for] whatever reason. Either it involves politicians or it's a tender matter; irregularities in the awarding of the tender or payments made, and that leads to formal reports. Those are reports that she signs-off, and some of the reports that she also signs at head office are closing reports and I made reference to that. But that part was also delegated to us in the provinces to the provincial representative to sign-off. That is what that covers – that there are specific reports that have to be signed by her, but not all of them. It depends on the classification of the report.
Mr Skosana: Alright, now the next question, do you know whether the PP ever took internal advice on whether to defend some of the reports that were set aside in court; this is in reference to the point you made in paragraph 26.1.1?
Mr Samuel: The question is do I know whether she took any internal advice? No, I do not. That advice would most probably come from the Senior Manager for Legal Services, and maybe, you know, from other managers, especially those that are involved, or that would have been involved in the particular report, but I'm not aware that she was given advice or she asked for it.
Mr Skosana: So there were no discussions whether at management level, or whatever structure where these things are discussed before a decision could be taken whether to take such a decision?
Mr Samuel: Not that I am aware of. I cannot say that there were discussions around this, I was not part of them. So…
Mr Skosana: Okay. Now, the next question is during your interaction with the officials from the Premier’s Office; by the time they conveyed the message from the Premier about his request to meet with the PP, did you ask them why your own previous requests to meet with the Premier had not received a courtesy of a response?
Mr Samuel: No, I did not.
Mr Skosana: Why not?
Mr Samuel: These were officials that were far removed from the Premier, so I did not. It never crossed my mind to ask them. The reason why it never crossed my mind is because they were only assigned to work with our Office for the preparation of the stakeholder engagement. These are not officials that even if I had thought of it at the time, that I could have asked that question, and gotten an answer – it never crossed my mind.
Mr Skosana: After the Premier met with the PP, you made mention that the Premier came out and then spoke to the CEO and ignored you. What could be the reason?
Mr Samuel: I don't know, I don't. I have my own suspicions why I think it was just his, you know, continued decision not to recognise me and my role in the Office and engaging. I can't think of anything. I don't know why not. But he went straight to the CEO, introduced himself and then turned around and walked away.
Mr Skosana: Okay. The next question I think under paragraph 26.1.6, you said that in the High Court, the OPP [Office of the Public Protector] had been represented by Motsoeneng Bill Attorneys Incorporated, and five counsel. In the ConCourt, this team was replaced in its entirety. The new attorneys were Cheadle Thompson & Haysom Incorporated Attorneys and new counsel. Then you go further to say this substitution of the entire legal team for purposes of the appeal would have significantly increased the cost of the process, as each new lawyers would have had to acquaint themselves with all of the material on record. So the question is, is it the PP who made these changes or who issued the instruction for such changes to be made?
Mr Samuel: The decision as to which counsel or which firm of attorneys is appointed in any particular litigation involving the Office is that of the PP. My point I'm making is that attorneys and advocates charge by the hour or the day for the time spent on any particular matter and acquainting yourself with the record and reading documents that you were not involved in to bring yourself up to speed about what the issues are and how to challenge it necessarily means that you're going to pay more for that for that person to be up to speed with what was in the case and be able to give advice on whether you proceed or not. Unlike continuing with the same team, which would be up to speed with the issues. From the cost point of view, it is ill-considered, unless there's a total breakdown between you and the team, it might be justified for you to go with another team.
Mr Skosana: Okay. No, I get you. But then are there no procurement procedures that give guidance about the procurement processes of legal services? Is it just a one person's decision?
Mr Samuel: We do have procurement procedures and processes and a process to follow. But I am not aware of it being applicable to legal services. Generally, if it does happen, because I've never been involved in initiating a process where we have to get legal services, as in being maybe not being a motivation, and then making a requisition to start the procurement process, no, I've never done that. I don't know, at head office, whether they do that because that is where those decisions are taken. But I'm not aware of them falling within the procurement process. I'm not aware of it. So it might be that it happens but I'm not aware of it.
Chairperson: Your last question.
Mr Skosana: Yeah. I wanted to say this before the Chair says… Okay. Yeah, in paragraph 87, where, I think that's where you speak about the think tank. And you say that, at the very least, the OPP should have attempted to hold the think tank sessions virtually, which would have allowed the important quality assurance function to be retained without the associated travelling and accommodation costs. The question is did you make this suggestion to the PP and the management team? If yes, what was their response? If no, why not?
Mr Samuel: No, I did not to both the PP and management team. I accepted that it was a decision that was taken and so I did not. I did not question it. But I… My point is that if the most compelling reason for the abolition of the think tank was the cost, the cost factor, then at least alternatives should have been considered and perhaps tried, which is why I'm saying just like the management meetings went on virtually, that could also have been explored.
Chairperson: The last two names: Hon Maneli and Hon Lotriet. Hon Maneli?
Mr B Maneli (ANC): Thank you Chair. In case I experience network… because earlier on I was having an unstable network, I will then switch off.
Chairperson: Thank you.
Mr Maneli: Chair, as the first point to raise, so that I know if I have to pursue these questions later on. Maybe just from the evidence leader, I just need a confirmation, that is, part of the witnesses to be called whether so referred to, Nemasisi and Ndou more frequently, in the witnesses that have come before us, if they are meant to come before us. May I just check that Chair?
Adv Nazreen Bawa [evidence leader]: We had provided the witness… We had in mind the witness list and he was, at the time, a Senior Legal Manager. He's not in the employ of the Public Protector’s Office any longer, and he was disinclined to want to provide us with assistance. So he is not on the list and if the Committee wishes to hear from him, then we would need to take steps to pursue that.
Chairperson: Thank you. You’ve got that Hon Maneli?
Mr Maneli: I’ve got it, Chair. I think we’ll come back to it at some point. Just for purposes of ease of reference, in terms of questions, I'll be focusing, in the main, on 182 to 184. But firstly, to cover the point to clear my understanding, as I greet you Mr Samuel.
Mr Samuel: Good afternoon Hon Member.
Mr Maneli: Good afternoon. So I just want to check again, just to confirm what you've raised, if I picked it properly. You are saying that with regard to the removal of the politicians, this would have been directed to you? Not because you got it maybe from somewhere else? Or am I mistakenly thinking that that's what you said?
Mr Samuel: Yes, it was said to me.
Mr Maneli: Okay, thank you. With regards to the subpoenas that you wanted as it relates to these politicians responding to what you have put before them. Were these in writing to the Public Protector?
Mr Samuel: I would have had to prepare those questions. Sorry, you still proceeding?
Mr Maneli: No, I was just saying the permission to subpoena the third petition to respond to yourself – were they in writing to the PP?
Mr Samuel: I did have questions that I had posed to the… that I would have posed to the politicians, but when requesting a subpoena, especially for witnesses that are politicians, and some maybe who are below DGs or MECs. The directive was that the subpoena must be signed by the Public Protector and that is because that official or that member has to appear in terms of our Act in front of the Public Protector. The only part that was delegated to us was lower officials, so they would have to appear in front of the Public Protector in Pretoria. If they were appearing because they were subpoenaed, and it was my investigation as it was in this one, I would also have had to either be there or send questions about what I want them to respond to someone who will represent me. They're like my line manager, because he’d be a head of this. But the long and short is that I would have had to prepare those questions, and that is how we have always done that.
Mr Maneli: No, Chair, I’ve heard with regard to preparing questions. What I'm asking is that the subpoena needed to be signed by the Public Protector. Was that done in writing to the Public Protector, from yourself? And surely the question then that follows is if it was declined, whether there was a response in writing too with reasons?
Mr Samuel: Oh, no. I had not prepared the subpoena at that time. The subpoena is generally a draft document we already have. It's just we will type in the name of the official that you want to be subpoenaed. I did not present them the subpoena. I first spoke to her about them. When she declined, there was no need for me to then send the subpoenas because I knew she was not going to – she made it clear – she was not going to sign them.
Mr Maneli: So that’s clear, Chair. Just to follow up that question still on the politicians. One of the emails that was flighted, there was an indication about section 7(9) that the Public Protector needed to sign and she would have indicated that it did not take into account the responses received from the Premier. Would you say those responses were responses to what you would have prepared and sent for response from the Premier’s side?
Mr Samuel: Are you referring to the section 7(9) notices?
Mr Maneli: Yes, I’m saying that. Chair, through you? So that I’m clear. The point I'm making is that there was an email where the Public Protector would have been concerned, in my view, about having to sign such, but there is no indication of the responses that would have been received from the Premier’s side. My question, therefore, about responses in particular, it's whether these are the responses on the basis of what you would have prepared as questions that they needed to respond to, from the point of investigation.
Mr Samuel: No, the Section 7(9)s are not a process whereby we seek information as part of an investigation. It is a process that follows when we consider that our investigation is nearing an end. And we are likely to make these findings against the implicated person, in this case, the Premier, for instance, or any other party, if we're going to be making adverse findings against them. That is why [we] would then issue a subpoena. And then in that notice, we will state what the complaint was and what the evidence we have is and what the law says in relation to the conduct complained of and based on that what is likely to be our finding. We invite them to then say whether or not they agree; if they don't, to provide us with information to rebut what we’re saying in the letter. The information that I would have wanted to be in that was one that was excluded by the fact that at that time, it was not open for me to ask the questions that would have informed them that we're going to make a particular finding against them. They had not participated in the investigation.
Mr Maneli: No, thanks Chair. I understand it exactly as you explain it, and this is why I have this question. Their responses so referred to, that are not included as part of completing your report, that the PP referred to on the email that was flighted by the evidence leader in trying to get more information. I'm asking whether those responses that the PP refers to were in relation to the questions that you would have asked, and, as you say, where not responded to, or if not, which responses was the PP referring to that could have been obtained from?
Mr Samuel: Those responses did not include or were not in relation to the questions I would have asked. They were based on the available information that they had not been confronted with. So they would only have to respond to that – to the questions, I would have asked, if I had asked them and they responded, and they then led to our draft, which was, we wanted to confront them within Section 7(9).
Mr Maneli: So, in a sense you are saying by the time it got to that part of the report still there were no responses to questions that they needed to be responding to – as confronted by the Office? Am I getting that right?
Mr Samuel: I’m not sure which… what… I’m trying to explain but it does not look like the Hon Member understands the process I was explaining.
Chairperson: You have a chance to make him understand.
Mr Maneli: Yes.
Mr Samuel: I’m trying. In the Section 7(9) notice, I did not ask questions of inviting them to respond to the… The Section 7(9) relates to possible findings based on the evidence we have at that time. It is not an opportunity to then ask them new questions. So I did not ask any questions that they would have had to respond to in the Section 7(9).
Mr Maneli: Okay, Chair. All I wanted to get was confirmation that the questions he confronted the office with, which its responses would have formed part of this draft report he refers to. Therefore, why does the PP say responses that were not included. These did not talk to the questions that were never responded to up until that stage of the report. That's all I wanted confirmed, because then the next question could still be what was the basis of finalisation of the report? So if we agree on that, I'm going to leave it and get to paragraph 182. I didn't say you should have asked questions at that stage. You are on a report, they may be implicated in a way as you finalise the report, but you still had questions that were never responded to. That's what I wanted to get. And then I can move, Chair, to the next point.
Chairperson: Please move.
Mr Maneli: In the next point, I again wanted to check your concern with regard to 183, where you show pictures of the entrance gate and so on. But in the final report, these were excluded from the report. Looking at what you raised materially about money spent, whether wasteful or not, I want again to check that the point you are raising, and I want to be sure if I get you well, is that the PP in finalising this report would have presented a report that conceals information and this would have been deliberate, given that it was already in the report?
Mr Samuel: The removal of those pictures amounted to the concealment of the evidence, upon which we made a finding that the money spent on those structures did not justify those structures… to justify the expenditure. It would leave a person reading the report with an incomplete picture of what we're talking about. That is why we included them there, but being removed amounted to, yes, concealment.
Mr Maneli: My third last question Chair.
Chairperson: The last question, thank you. I didn’t get that? You said your second last question?
Mr Maneli: No, I said the third last question, Chair because I said 184 up to 183. But I will stop when the Chair stops me. Chair, on 184, I want to establish again what you are saying there. You are talking about a report that says there was inability to investigate certain issues and you quote, "due to capacity and financial constraints". In your oral evidence, you would have indicated that you disagreed with this on the basis that there were experts readily available for free and therefore, inadequate capacity would not be an issue and financial constraints. Again, I want to check here, would you say that the Public Protector would have deliberately misled society on this in that those would have not been applicable? Therefore, even the needs for further forensic investigation would not arise. Are you also saying that's a sense of dishonesty or misleading on that score?
Mr Samuel: Hon Member, if that was my view, I would have stated it, I believe, in that paragraph. But that is not what I'm saying. What I'm saying is that we did not meet experts that… we did not spend money on experts that will tell us what we could get for free. And we did, that's why we spoke to people or organisations that we consider to be experts, like on the milking parlour. That reference there that we did not investigate certain issues "due to capacity and financial constraints" was for me, misleading.
Mr Maneli: Okay. No, thanks, Chair. That’s responded to: it is misleading. I just want to get two questions on the legal fees. But again, it is to understand this point on page 2150. I think the evidence leader also showed us their financial statements. May I just check on that one? Why would Legal Fees be separated from Consultants and Professional Fees, which in other financial statements would have been put the same? I'm just raising this from my personal statements without knowing because when I look at the numbers the legal fees will show less than a million…
Chairperson: Yeah, he got the question. Let him respond, so that you don’t prolong it.
Mr Maneli: Okay, thank you.
Mr Samuel: Clubbing legal fees under that general heading was a departure from the way that the report was previously prepared with regard to legal expenses. And there was, in my opinion, no reason why it should have been separated. I believe the fact that the Committee, or maybe the Portfolio Committee, asked the questions, specifically with regard to legal fees, answers the very question that had been specified to be legal fees in those reports. It would not have necessitated that question being asked of the Office and to respond thereto. It was also, in my view, a way of concealing the exact extent of the legal fees and not breaking it down, either by reference, maybe as a footnote or something amounted to, you know, to concealing that information, and hope that I'm not going to be asked about this. For me, that is how I view it.
Chairperson: Thank you.
Mr Maneli: As I said, last question Chair. It’s just on a positive thing about the Public Protector.
Chairperson: You must be brief Hon Maneli.
Mr Maneli: Yes, I'll be brief, Chair. It’s just that I want to be clear on the notes I have written. The think tank was as you described, more to have an opportunity for peer review, and then learn from others. I want to raise the other point as a positive point that the Public Protector got to be interested in every case, like you were saying you had to percolate every week, but also that there's been introduction of accountability, responsibility in the assurance side of things, quality assurance, that you take personal responsibility at your level, at the level of the middle, but also the Public Protector. I want to just ask the question, will you not see this as something positive, especially with all the problems you faced, where there can be personal responsibility, at different levels, including the Public Protector, not able to say I'm exonerated on a decision, because she or he would have at least had an opportunity of ensuring quality assurance, and therefore will take personal responsibility, like any of the other people that have signed off on the report? So I just wanted to check whether…
Chairperson: Thank you, Hon Maneli.
Mr Samuel: I agree that it was a positive development, particularly seen in the light of the value chain of the investigator responsible for the investigation all the way up to and including the Public Protector. It meant there are more people making sure that things are in order with a particular report. I don't have an issue with that one.
Chairperson: Thank you. Hon Lotriet.
Dr A Lotriet (DA): Thank you Chairperson. I'll be very brief. Good afternoon, Mr Samuel.
Mr Samuel: Good Afternoon.
Dr Lotriet: I just want to go back to the Section 7(9) letters and the responses in paragraph 161 of your affidavit. You state that the MEC and the Accounting Officer also submitted responses around that time. As far as I recall, these responses were submitted to Adv Mkhwebane and the OPP Head Office. Did you ever have sight of any of the responses from any of those Section 7(9) letters that were issued?
Mr Samuel: I cannot with certainty say that I had sight, I might have. Ordinarily the practice would be that, because the letters are signed by the Public Protector, they would emanate…they'd be on the letterhead of the private office. And even though my name might be cited there as the person to make inquiries to if the report emanates from me, when the private office receives the responses, they would invariably send it to the originating office. So I might have seen it, I cannot exclude the fact that I might have seen it. But what I noted there is that it was 14 July, I might have seen it later on because I was on sick leave then following an operation.
Dr Lotriet: Thank you and then just a bit further down. You refer to in 163 about the investigation file that had to be handed over to Head Office. Was this normal practice that a whole file of an investigation be handed over?
Mr Samuel: No, that was not the practice. Initially it started off with the evidence upon which we base our finding and would have to be sent and we would make copies; not send the old file. The file would still be kept because it was a file of the Free State; it had to be there until finality. So this was not normal practice. It was something new.
Dr Lotriet: Was any reason provided why it should be sent to Head Office?
Mr Samuel: No.
Dr Lotriet: Okay. Now, Mr Samuel, you said in your affidavit that 4 July 2020 was actually the date you could resume your duties at the Office, after the CCMA award?
Mr Samuel: Oh, yes.
Dr Lotriet: Have you resumed Office?
Mr Samuel: Yes, I have. The award says I must report for duty, I have and I've been going to work every day until last week Friday. It's only this week that I have not been there – since I have been here.
Dr Lotriet: Okay, and when you were suspended you also had to hand in your laptop?
Mr Samuel: Correct, yes.
Dr Lotriet: Have you been reissued with your laptop with all your correspondence on it that you had before?
Mr Samuel: No, in the affidavit, I state that that laptop could not be traced when the Evidence leaders contacted the Office, and so I'm not in possession of a laptop. As I'm sitting here, I've not been provided with one. I did ask for it from the Head Office, but I was told that they are still considering the award and would come back to me.
Dr Lotriet: Okay. They are considering the award?
Mr Samuel: Yes, they were saying they’re studying the award and considering their options.
Dr Lotriet: Okay, thank you. Thank you. And then lastly, you referred earlier to the security clearance. You said that it was not common practice that everyone had to be to get security clearance in the previous… under the previous Public Protectors. Is there any way in the Public Protector Act or in the Public Protector policies that makes that requirement?
Mr Samuel: No, to my recollection not in the Act. I'm not sure [of] the policies, but I know that, the practice now is with every advert that is placed for any post, particularly say of the investigators and so on, that is put as a requirement – that candidates will have to undergo that or provide that.
Dr Lotriet: According to your understanding where would that derive from that requirement?
Mr Samuel: All I can say is that it was first introduced by Adv Mkhwebane, when she first came in. But as to what the reasons are, I don't know. I do accept that where we would have to deal with classified information or documents it is necessary to have that but up until then, in fact, as I'm sitting here I have never had to deal with classified documents and a lot of my colleagues as well. I do know that from some of the colleagues that came in later on during the years, they would come showing that they have the security clearance which I think would last for something like 10 years; because it was now a requirement, they would have met the requirement but for us who had been there earlier and previously, it was never a requirement.
Dr Lotriet: Thank you very much. Thank you Chairperson.
Mr Samuel: Thank you.
Chairperson: Thank you Hon Lotriet. Thank you Mr Samuel. For today that’s where we end with you. The Evidence Leader will probably be in touch with you together with Adv Mpofu about the conclusion of the cross-examination, which could be virtual. Anything, as you leave, you want to say?
Mr Samuel: No, I just wanted to thank the Committee for the invitation and the cordial manner that I was treated here, thank you.
Chairperson: Why are you smiling when you say cordial?
Mr Samuel: Because it's a positive feeling that I have… that it was cordial, in general, Chair. Thank you.
Chairperson: Okay. Thank you Mr Samuel. We’ll take a 15 minute early tea break and be back at half past, to interact with Mr Hassen Ebrahim.
Cross examination continued with Mr Hassen Ebrahim
Chairperson: Let me take this opportunity and welcome you back. Mr Hassen Ebrahim.
Mr Hassen Ebrahim: Thank you very much, Sir.
Chairperson: Just to remind you that you are still under oath, so we're not going to redo that process. Without wasting any time. I am going to recognise Adv Mpofu to interact with you.
Adv Mpofu: Thank you Chairperson. Good afternoon Comrade. How are you?
Mr Ebraham: Very well, thank you, Sir.
Adv Mpofu: Are you still a member of the ANC?
Mr Ebraham: No.
Adv Mpofu: Did you resign or join another party?
Mr Ebraham: Neither, it lapsed once I went into public service.
Adv Mpofu: I see. Alright. I think where we left it last time, I was busy dealing with you on the issue of the overlap between, let's call it separation of powers. But I think you were not understanding what I saying, so I'm just going to try and explain it. I was exploring with you the uniqueness in the Section 194 process, from a point of view of separation of powers and given the novelty of this process and some of the complexities that we hope that the Members will be able to appreciate. The question I was putting to you, or rather asking for a comment as a person who knows anything about the Constitution, is maybe… so that you can say what needs to be navigated, the fact that this process…for a fact that the Constitution says the Public Protector will account only to the National Assembly.
Mr Ebrahim: Yes.
Adv Mpofu: Okay. That's common cause. And yet we have the situation where a member of the Executive, separate arm of government, called the President, is given the powers to suspend, among other things. That power to suspend is directly dependent on the work of this Committee. Constitutionally, if you read 193(a), okay? In other words, if this Committee does not do certain things, and now our version will be that… Oh no. That’s another topic which I’ll come to now. For now, assume that we're talking about this Committee or rather let's say it's dependent on a committee of the National Assembly to put it neutrally: so that's the first overlap, okay? Which is an overlap that is legislated for lack of a better word in the Constitution. Now, in this particular process of Adv Mkhwebane, that matter is further complicated by the fact that, according to some of the Members here, effectively, all they need to do is just to take court judgments, and that's it. That then introduces a further complication, which is that what we'll be doing if we did that would be to outsource the accountability function of Parliament to the judiciary. If you see what I mean? That makes it even more complicated, which means now we'll be having National Assembly triggering a reaction from the Executive, and then relying on judgments of the judiciary, which really means that it would be the judiciary impeaching the Public Protector. How is that complexity to be navigated… firstly, to be appreciated but secondly, to be navigated?
Mr Ebrahim: Chairperson, it's a complex set of questions and let me see if I understood it properly. There's a number of aspects to it. I asked myself this question. And to deal with it. I started off with the Constitution, then went to the legislation and then went to the rules and discovered the following sequence. Firstly, it was on 3 December 2019 that the National Assembly developed rules…
Chairperson: Adopted rules.
Mr Ebrahim: Adopted the rules. Setting out the process for the removal of office bearers in institutions supporting constitutional democracy. It was a couple of months later that on 21 February 2020, the Democratic Alliance then produced … tabled a motion to initiate the inquiry. Subsequently, what happened is that the Speaker then, acting in terms of Rule 129 (u), established an independent panel. The purpose was to conduct a preliminary investigation or assessment to determine if based on the information available whether there was a prima facie evidence showing that the Public Protector had committed misconduct and or was incompetent. There was an attempt to establish a panel to establish that prima facie evidence. Of course, there were various court cases in between but subsequently, the panel submitted its report on 24 February 2021 when the panel recommended that the charges of incompetence and misconduct be referred to the committee. The panel had undertaken an assessment or an investigation, interviewed or engaged with all the parties, including the Public Protector, and then come up with… What then takes place is that the report is received before the National Assembly on 16 March 2021 and the National Assembly resolved to proceed with this inquiry.
Mr Ebrahim: Now, when this Committee was established, it was established, specifically with the objective, firstly, to assess the charges contained in the motion in order to determine whether the Public Protector was incompetent and or had misconducted herself. Secondly, to report to the National Assembly on its findings and recommendations. So you had a set of rules in terms of which, firstly, the predetermination of what constituted misconduct and or incompetence was defined. Then a process set out, including the establishment of a panel, and then the establishment of this Committee to process the charges. There are different aspects that I want to deal with. The first is the predetermination of what would constitute a series of violations. Now, EFF v The Speaker in 2018 very crisply set out the requirements of the predetermination of what a serious violation was, which then prompted subsequently the rules that we currently have, which defines really what misconduct and what incompetence would be and defines the process. The second part to this is that we have then have the panel report. The Independent Panel report in its recommendations at paragraphs 260 and 261, having concluded its investigations, made the recommendation to the National Assembly. The recommendation said the National Assembly should, based on the findings, proceed with the charges. It was subsequent to that, this Committee was established. The first point I wanted to establish in having tried to answer that question is that there has been much controversy and discussion around Section 194 and the committee established in terms of Section 194, whether the committee was to establish whether there was cause or not. I'm saying very clearly that is not my understanding of how it should have been in a sense there was, in terms of the rules, a requirement that there should be a Notice of Motion, which is substantiated with information and evidence attached to that Notice of Motion. After that Notice of Motion was received, the panel was established, the panel was established for purposes of establishing a prima facie case, then only was this Committee established. So the predetermination had already been defined in terms of the definition of the grounds. And so the Committee is properly and duly constituted in terms of Section 194(1) to process as it states in its terms of reference, to assess the charges contained in the motion. And in order to determine whether there was a case to be made for incompetence, or misconduct, and to report on its findings, so that, in my opinion, was a properly constituted process. The Committee is therefore able to undertake its responsibilities in terms of section 194(1). Now, it brings me then to the third part of it; I've dealt with predetermination; I've dealt with the panel report. Now, I want to deal with the last, which is the recent case in the Constitutional Court of The Speaker v Public Protector, at paragraph 19.
Adv Mpofu: Chair? Sorry.
Chairperson: You intervene when you…
Adv Mpofu: Yes, when I feel that it's… No, I really didn’t want to interrupt Mr Ebrahim but I don’t want to go back into this. We've covered this ground about predetermination and so on. My question was completely different. I know he came here, having prepared something concrete from after the last time, it's understandable. But if we can just confine it to my questions, Mr Ebrahim, please. Because also, the other issue people don't realise that in cross-examination you are sometimes guided by the witness. So you could take a whole hour answering the same question, and then the Chairperson will tell me I have finished my time when we haven't covered what I need. If you can just be guided by my questions, I don't mind if you want to expand, or refer to cases and so on, because that's the nature of the thing. But [at] the very least, let's start by answering the question. So we'll come to the EFF. I know you and I had a disagreement, which I see still persists on what is meant by institutional predetermination? That's fine. I don't want us to go back there. I was simply saying that hoping, rather, that you would assist the Committee to navigate, what I say is a very, very crucial grey area, even in my mind, around the interplay of the judiciary, the National Assembly, and the Executive in the S194 process viewed as a whole. And it's quite a serious matter because, as I say, just by coincidence, it won't happen if maybe it's the Auditor-General or whatever. By coincidence, in this particular process, there is a desire to rely directly on judicial pronouncements – almost take judgement, and impeach, which in my estimation, would then mean that it's actually the judiciary that's impeaching. Then this Committee, or rather the National Assembly, is just a conveyor belt. How should that be avoided, if you think it should be avoided, and how should the separation of powers issue be handled?
Mr Ebrahim: Chair, so frankly speaking, I don't see the same problem, and I'll explain why I don't see it in the same way. I'm not privy to how this Committee has decided to go about its investigations. I don't know what choice of witnesses you have decided to call and who you have decided to call in terms of verifying this case. I'm not sure whether you are relying strictly on judgement of court, so I cannot comment on that. But I want to say the following: I don't think there is a problem in dealing with either the outsourcing as it were or a question or a challenge to the separation of powers. In my opinion, having regard to the Constitution, legislation and rules, the Committee is a properly constituted committee to carry out its responsibilities without having to stray and violate that separation of powers, whether by absorbing or relying on court judgements. Having said that, I don't see any challenge to this Committee having regard to those court judgments. I want to refer to one specific court judgement which I spoke about, which is the Constitutional Court case of The Speaker v Public Protector earlier this year. In particular, I want to refer to paragraph 19. Now, paragraph 19, for me, succinctly sets out the answer to what I think the problem is. If I may read it, it says: " The report of the independent panel must be considered by the National Assembly. If the National Assembly resolves that a section 194 enquiry should be held, the matter must be referred to a committee, established in terms of rule 129AA, consisting of members of the National Assembly, for a formal enquiry. The committee must ensure that the enquiry is conducted in a reasonable and procedurally fair manner. During the enquiry, the office-bearer has the right to be heard in her or his defence and to be assisted by a legal practitioner or expert, however, such legal practitioner or expert may not participate in the proceedings of the committee. The committee must provide a report with its findings and recommendations, including reasons therefor, to the National Assembly. If the report recommends that the office-bearer must be removed, the removal must be put to the National Assembly to vote and if the requisite majority is achieved, in accordance with section 194(2) of the Constitution, the office-bearer must be removed from office. " Now, in my mind, paragraph 19 succinctly sets out really where we are and what the case is, and in my opinion, answers the challenge and the question you are raising.
Adv Mpofu: No.
Chairperson: Maybe before Adv Mpofu comes in. Having done the prelude that you did, which was helpful, and quoting from this paragraph. What remains is what he’s posing as a complex issue of that interplay in terms of those three role players. And he’s made a specific question, which I want to repeat to you that says – and I'll paraphrase it – ‘would there be anything wrong if this Committee just took the panel report, and believed in the panel report and the sectoral reports?’. That’s what he’s referring to. Ss the judicial… Would you want to deal with that (and) to navigate what he says? It's an important interplay that must be explained. I hope I summarised…
Adv Mpofu: Thank you Chair, that’s quite correct.
Mr Ebrahim: The terms of reference for this Committee is quite specific. It says, “The objective of the inquiry is to assess the charges contained in the motion, in order to determine whether the Public Protector is incompetent or has misconducted itself.” So the inquiry, this Committee, is required to assess the nature of the charges based on the Notice of Motion. How you do so would then be through a variety of measures. You'd have regard to the panel report, but you'd have regard to the court cases, but you'd want to assess, as I understood it, so witnesses would be able to speak to the issue of the charges of incompetence and misconduct, provided that you are able to have witnesses come before this Committee, which will be able to give testimony to either substantiate or negate these charges. This Committee… if the Committee availed itself of such an opportunity, it would have concluded and completed its work in a proper manner.
Adv Mpofu: Okay. Thank you, Mr Ebrahim, I think let's do it like this. I'm going to ask you – because it's not going to work, what's happening – and I'm going to ask you specific questions and lead you. And then you can if you want to explain; but [only] if you want. But if you agree, agree. If you disagree, disagree. Do you agree that the Public Protector accounts only and specifically to the National Assembly?
Mr Ebrahim: That's correct.
Adv Mpofu: And do you agree that that is something that is constitutionally entrenched in order to ensure the independence of the Public Protector?
Mr Ebrahim: That is correct, yes.
Adv Mpofu: So that the Public Protector, as the name suggests, accounts, almost directly to the public. Because the National Assembly is the only body and the only arm of government that represents all of us, the citizens, the public?
Mr Ebrahim: That's correct.
Adv Mpofu: In theory, the Public Protector would account to 60 million people. But that's impractical. Those 60 million people have chosen 400 of their own to represent them every five years. Correct.?
Mr Ebrahim: That's correct.
Adv Mpofu: Now those 400 people, theoretically representing the public, are entrusted constitutionally with the job of holding the Public Protector accountable? Okay?
Mr Ebrahim: That's correct.
Adv Mpofu: Now, I'm saying amidst all that, the drafters of the Constitution saw it fit that there should be some role played by the Executive. Particularly, in terms of section 194(3)(a), the suspending clause, understand? You seem hesitant. The President is a member of the Executive, right?
Mr Ebrahim nodded his head in agreement.
Adv Mpofu: Yes. And the President is one of the persons to be held accountable by the Public Protector, correct? If you nod, it won’t record.
Mr Ebrahim: That's correct, yes.
Adv Mpofu: Yes. And the…actually, in terms of the EFF Nkandla Judgement, the President is the most powerful of the people to be held accountable by the Public Protector?
Mr Ebrahim: That's correct, yes.
Adv Mpofu: And he or she may visit with what Justice Mogoeng called an unfriendly response to an investigation, for example?
Mr Ebrahim: That’s correct, yes.
Adv Mpofu: Right. Now, I'm just saying… I'm saying to you that is a constitutional… remember, there is no rigid model of separation of powers because these things interact in one way or the other. So this is one of the sections where, if you like, that interplay is constitutionally allowed, that the President will only suspend once the National Assembly committee starts its proceedings, and so on and so on. Okay, so I'm saying that is something to be navigated. It can’t be avoided, because it's constitutionally entrenched. The question I'm posing to you against that background is a simpler one. I'm saying… Let me do it like this again, so that I can lead you otherwise we’ll have a long debate. Given that complexity, would you agree that it would be undesirable for Parliament, which has this responsibility simply to be a conveyor belt that takes findings of the judiciary; put them in the conveyor belt and they come out of the other side of the conveyor belt as the work of Parliament? In other words, to impeach directly by taking work, which was done by a separate branch of the state, thereby, and I don't mean literally, almost having a situation where it is the Judiciary's decision that impeaches the person if there's nothing that's going to happen in between, in other words…you know what a conveyor belt is? If you just put something and just convey it to the other level, you don't do anything, you don't manufacture anything in between, would that, in your estimation, be something to be avoided? And if so, how? If you think there's no problem, that's fine, you keep on saying you don't see a problem, then we'll move on to something else, yeah.
Mr Ebrahim: I would have thought that it would be of value to the Committee to avail itself of witnesses that would be able to speak to the charges. That's quite a different thing that's going beyond… that's quite aside from the judgments. I'm saying that the Committee has the right, and should [and] cannot ignore judgments of court, especially where they are relevant to the conduct of the Public Protector. However, the Committee, I think, would be wise to also consider the evidence of witnesses that would be able to speak to the charges. So it's not just the conveyor belt.
Adv Mpofu: Thank you very much. Alright. That’s fine. I don’t think… It’s alright. Then can we… Let's go to a separate topic. A question was asked by Hon Mileham and Hon Nqola, which I pointed out last time you did not answer. Maybe you had time to look at it. To your credit, it's something that you alluded to almost in passing in your main evidence. It is this: do you accept that on the current construction of the Constitution, and I won’t put it higher than this, it is conceivable that the Section 194(1) Committee, which this is, is not the same thing as the committee envisaged in Section 194(3)(a)? I think Hon Mileham asked you this specific question – is that committee the same as this Committee? I think Hon Nqola asked the same thing but from a different point of view. Firstly, do you think it's the same committee?
Mr Ebrahim: I had absolutely no doubt.
Adv Mpofu: Good. Okay, then we have a problem. That's even worse – if you have absolutely no doubt. Alright, now, do you agree that this Committee is not a removal committee?
Mr Ebrahim: No, I think it is.
Adv Mpofu: You think it is? Okay. No, then that's where the problem is, because this Committee doesn't think it's a removal committee – correctly. Its Chairperson has said so many times, both here and in the public domain, and I agree with him. So maybe you disagree with him. Let me maybe rephrase that. Do you accept that the job of this Committee is only that which is defined in Rule 129(a)(d)(1), namely, to ascertain the veracity of the charges… but it's not to remove anyone? It's only if or once it makes a finding one way or the other? Let's call it, if it says yes, the charges are sustained…let's call that red. If it says they're not sustained, let's call that green. As we're sitting now here, we’re determining whether we should go red or green, do you accept that at least? I'm sure you do.
Mr Ebrahim: Chairperson, I think we are playing with words. Let me explain why I think we are playing with words. The purpose of this Committee…this committee does not have the authority either in the Constitution, legislation, or rules to remove the Public Protector. However, this Committee has the responsibility to assess the charges contained in a motion, prepare its report in terms of its findings, and submit those findings to the National Assembly. It is the National Assembly on the basis of a resolution of two thirds of its Members, then will issue…that will ask for the removal. The person that actually removes, is the President.
Adv Mpofu: Alright. Can I… Maybe… Do you know anything about Section 177 of the Constitution? That’s the one, just to assist you, the one about removal of judges – you know something about?
Mr Ebrahim: Yeah.
Adv Mpofu: Okay. Do you agree that it is the closest section, obviously, with a few changes, to the one we're dealing with 194(1)? It's the closest section in the entire Constitution that somehow resembles what we're dealing with here. You can just have a look at it. Have you got it?
Mr Ebrahim: You said?
Adv Mpofu: 177, yes. Let me start with the similarities. That section says, and I'm paraphrasing… So 177(1) is like almost the same as 194(1) Okay. "A judge" put in brackets a Public Protector "shall be removed only" and there's a very important word there which also gets neglected, "only if (a) there is a finding by a committee". The charges differ simply from the word gross: if it's a judge, it’s gross misconduct; if it's a Public Protector, it's misconduct, but that’s not important. And "two thirds vote"…Okay? Almost a mirror image right?
Mr Ebrahim: Yeah.
Adv Mpofu: Now, we know because that has already happened many times, unlike this, which is a novel situation, that there is a process what I call the red/green process, which takes place until there's a finding. Once the bright light zone is reached of a finding of gross incompetence – read here – or misconduct. then you get into what you call a removal process. You cannot get into a removal process of a judge before that determination is made. Do you agree?
Mr Ebrahim: Yes.
Adv Mpofu: Thank you. Now, if that is so, do you also agree therefore that logically that should be the same [as] in the case of a head of a Chapter Nine institution?
Mr Ebrahim: Chairperson, my view is this: according to 194(1), all we are required to do is that having set out the rules which would define the nature of the charges or the misconduct, incapacity or incompetence; set out the process; then establish a committee in terms of 194(1)(b) and task it with the responsibility of verifying and assessing the charges. The committee would then go about gathering evidence to support or otherwise deal with those charges, then table its report. It is the National Assembly by a resolution that will then vote as to whether that removal takes place or not. That is my understanding of the…
Adv Mpofu: Alright. Okay…
Mr Ebrahim: In the instance of the judges, you'd have the Judicial Service Commission making a finding, and then the National Assembly calling for the judge to be removed by a resolution.
Adv Mpofu: That's fine. Okay, I give up. Let's try something else. You know, I'm sure…I hope about… What has been described in the Nkandla case, and in the State of Capture case, as the very wide powers of the Public Protector? And in the Public Protector v Home Affairs case, I don’t want to misquote the court, but it basically said that the powers of the Public Protector are almost limitless. Obviously, nothing is limitless in life, but… and I’ll get to the… The judge there was Judge Plasket, who said that the powers are so wide that they are almost limitless. Now, given that – and I think in your report, you've also referred to the Mail and Guardian case, which makes the same point – do you accept that the Public Protector has the discretion, upon the context of those wide powers, to widen or narrow a complaint or the investigation? In other words, I can go to the Public Protector and say they stole my pen and my glasses and my shirt, and then the Public Protector has the scope within the wide powers to just investigate the glasses. Or to say, ‘No, I'm actually going to investigate the glasses and the shoes, which you didn't mention in your complaint’, if you get what I'm saying?
Mr Ebrahim: Chairperson, I said in my report… I’m just trying to look for the relevant paragraph because it will be very clear from that, that the Public Protector may not expand… here it is. In paragraph 68(4) of my report, it says, “A Public Protector should not expand any investigation without lawful justification”, right. The reference there is to the case dealing with the Public Protector v President, dealing with the Executive Code. The relevant paragraph is hovering around 65 and then 93 to 96. It states very specifically that the Public Protector should not expand an investigation without lawful justification. I have not found the issue of limiting an investigation; I have not found any guidance from the jurisprudence on that. But my argument would be as follows: The Public Protector could limit an investigation provided there was legal justification and provided that it was a bona fide date limitation. Okay. So, for example, if there were a limitation of that power…of that investigation, even an expansion of that investigation because that expansion or limitation would involve intention. It would then, provided that it was not based on a lawful justification or bona fide, it could in fact be misconduct. That is my answer to what you’re saying.
Adv Mpofu: Mr Hassen, please. No, it’s not. You think that you are a witness for the prosecution. You're supposed to be an expert, well, you said you're not an expert, but you're supposed to be somewhat assisting the process. Don't bat for any side. Okay? The issue I'm asking you is very simple. It's a yes or no answer. And in a way, you've answered it, but you don't have to add misconduct. If you want to talk about misconduct – I'm asking the questions – we’ll talk about that. I've asked you a simple question and I won’t repeat it because I think you've answered it, which is that the Public Protector has wide powers to either expand or limit a discussion and I seem to agree on that. Correct? Correct?
Mr Ebrahim: The Public Protector would be allowed to limit any investigation provided that it's not mala fide. So it's not an unfettered right.
Adv Mpofu: Yes. yes. Sir, please just answer my questions.
Chairperson: Just a pause Adv Mpofu. Adv Bawa?
Adv Bawa: Last week Adv Mpofu referred to us as ‘the prosecution’. He has now made a suggestion that the witness is batting for the prosecution; the inference again that we appear to be prosecuting. Either Mr Mpofu must clarify if that's what he's saying – whether he's just saying it in a general sense.
Adv Mpofu: Well, no, I'm not saying it in a general sense. I'm saying it in the sense that you have misinterpreted. I didn't say what you say I said. I said that he must not… I didn't say…I said he must not behave as a witness for the prosecution. That's all.
Adv Bawa: The only thing I’m asking you, Mr Mpofu, is to clarify that you're not referring to the evidence leaders when you say that?
Adv Mpofu: No, I’m talking to the witness. Chair, please protect me? Maybe you heard what I said and my learned friend didn’t.
Chairperson: I heard him differently, Adv Bawa, so proceed Adv Mpofu. Switch on your mic, Mr Hassen.
Adv Mpofu: Thank you. Rather keep it on, yeah. Sir, I’m begging you. I’m simply asking you so that you can assist the Committee, not to assist me or the Public Protector or anybody. Okay? Everyone agrees that this is the first time our country has moved this far, in a process of this nature. Okay? It's a very complex process, contrary to what some people believe. And for that, it was important to call a witness like you; as you know, you were the very first witness. Just so happened, because you can’t plan things in life exactly, that you now come after some witnesses. But the idea was to call you so that you can scope for us what we need to do. Okay, that's all that's needed from you: don't get involved. Okay? So I'm saying to you, you and I seem to agree that the wide or quote unquote, limitless powers of the Public Protector would generally enable her to widen or narrow a complaint, okay? Agreed?
Mr Ebrahim: Yes. Subject to the…
Adv Mpofu: Subject to the… before you jump in, yeah, subject to the qualification, which you put in, which is true. Namely, obviously, she can't just wake up one day and I give her a shopping list of complaints and say, ‘Nah I like number two and number eight'. Okay. So it must be done within legal bounds. But that should be obvious. Okay. So wide are those powers in terms of Section 6 of the Public Protector Act, she even has own initiation powers. In other words, she can take my complaint, she can narrow it, or she can widen it. Or she doesn't even have to wait for my complaint, she can just construct one of her own. That's how wide her powers are. Agreed?
Mr Ebrahim: That is correct.
Adv Mpofu: Yes. Now, the only point I really want from you, to assist this body with is the following, and tell me if you agree or don't agree: even those wide powers, it is of no use and meaningless to accuse the Public Protector of having narrowed or widened a particular complaint because she's empowered to do that. The only issue that we can inquire into is whether in a particular instance where she has either widened or narrowed, there were, what you call… what you've now described as legal grounds to do so. But to simply say, you narrowed it, that's like saying you're breathing; there's nothing. That's exactly what she's entitled to do. The real inquiry must be: in a particular case where she has narrowed, were there legal grounds? Yes or no, then, of course, we deal with it, and so on. Would you agree with that general summation?
Mr Ebrahim: Yes, I think I would agree with the argument that provided it was with legal justification and without getting…
Adv Mpofu: Yeah, thank you. Alright. Chair…
Mr Ebrahim: May I just be very clear – and I didn’t want to disturb the train of thought of Adv Mpofu. Let me say very clearly here, that I'm not here batting for any side. Neither am I associated with whatever narratives that maybe have been referred to. I'm not paid to be here. I've been asked to be here and it's out of public service duty that I'm here. I'm not inclined to support or oppose any particular, if there were competing, views. I want to be very clear that – and please do not associate me with any of what you're suggesting – I'm not batting for any side.
Adv Mpofu: Okay. Alright. To make that easier for us to grasp and accept, then don’t refer to misconduct until somebody mentions that. Because the over-zeal to talk about misconduct, may give the wrong impression. Okay? Now…
Chairperson: Do you accept that’s in the motion?
Adv Mpofu: What?... Sorry?
Chairperson: Misconduct and…
Adv Mpofu: It is but it's not in my question. We can’t do anything that’s in the motion. He must answer my questions for now. The motion we will deal with, Chairperson.
Chairperson: That’s fair, thank you.
Adv Mpofu: Right, let's leave that for now. Okay, well, let me explain, by the way, why I'm doing this. We, ourselves, when it's our turn to bring evidence, intend to bring expert evidence, quite extensive, both local and international. Because contrary to what you said the last time, there is expertise in this area. It might not…well, even in this country, there is. But the idea of ‘ombud’ is as old as…it's older than all of us. So these things are not…they might be new to us as a young democracy. But there's expertise out there. But anyway, that's an aside. So I'm testing some of the themes that will be coming from our experts with you, just so that we can situate…the Committee can then say, ‘Okay, well, there was a different view that was expressed in this’, and obviously it will have to choose. Right. Now, do you agree or not agree that another area that will need to be navigated by a committee of this nature is another dichotomy between the investigative role of the Public Protector as opposed to what some people see as an adjudicative role? I hope you know what I mean by those two? The… I think it was Mlambo, Judge President Mlambo, in the State of Capture case, who expressed it in his terms: Public Protector is not an adjudicator, but an investigator. And I don’t want to give you a long background: I was in that case. I argued that point on the following basis; and you can agree or disagree with it. As you might know, what happened there is that the Public Protector had issued remedial action for the appointment of a commission of inquiry, but had decreed that it must not be appointed by the President, contrary to what the Constitution says in Section 84. Okay? Because the President was conflicted. Alright. Now, our opponents said, ‘No ways. It's not possible’. The Constitution is very clear. Here it is. It says ‘The President… every commission will be appointed by the President’. Right. And we said, which is what I'm trying to say to you, ‘No, the powers of the Public Protector are so expansive, that it should be permissible’, particularly because it's an investigation rather than adjudication because an investigation can take you anywhere. I could be investigating this person, and then it leads me to that person…to that person…to that person. You never know where it's going to take you. And the court agreed with us, among other things, on the basis of this distinction of investigative powers versus adjudicative powers. Firstly, do you think that's an important distinction, which will need to be unpacked for this Committee before it makes its decision? If so, how do you link it to this question of… that it widens the powers even further? In other words, okay, no, let me not make that illustration. First question. Do you appreciate that distinction or do you understand it?
Mr Ebrahim: I think I understand it.
Adv Mpofu: Yeah, yeah. Okay. Do you agree that, as the court said in that case, it widens the powers of the Public Protector even further? In other words, she could have had wide adjudicative powers, but now she has wide investigation powers, which are even wider. Agreed?
Mr Ebrahim: Yes, of course, it would be subject to legal justification.
Adv Mpofu: Fair enough, yes. Okay, I'm making a simple point, Mr Ebrahim, in an adjudicative process, you are literally handcuffed or hamstrung by the pleadings. Okay. So it doesn't matter what you think if I have a dispute against the Chairperson, which I would never have. Yeah.
Chairperson: It's just an example.
Adv Mpofu: It's just an example, yeah. In an adjudicative process, it will be confined to that dispute. The judge might have ideas about that – there might be other disputes like this next week. But it’s tough luck. But in an investigative process, you don't have those kinds of restrictions. As I say, it can take you anywhere. You never know. You might think you're investigating a dispute between myself and the Chairperson, and end up investigating the entire Parliament. Do you understand that distinction? Or rather, do you think it applies to what we're busy with here?
Mr Ebrahim: Chairperson, I think it is the Mail and Guardian case, which required of the Public Protector to have an open mind; to see where an investigation would lead; to investigate the matter; and if it raised more issues then, to pursue those issues. So an open mind is a requirement of the Public Protector. And that has been established in our courts.
Adv Mpofu: Yeah, Okay. I think you are conflating two issues. The open mind, I agree with you. That's par for the course. I’m exploring something else – but again, I think you've answered it in your own way – which is that the real gist of what was being said in Mail and Guardian, which is the first part of what you said, namely that unlike in an adjudicative process, an investigation can take you to places that you haven't even imagined when you started. At least we agree on that part. Okay, good. Now… Okay, we’ve also dealt with this in a way. But again, I just want to put to you as a proposition: there are three sections of the Constitution, which deal with impeachment; principally, there are others about premiers and so on. But the main three sections are: Section 89 which deals with the impeachment of a President; Section 177 which deals with the impeachment of a judge; Section 194 which deals with impeachment of a head of Chapter Nine institution. Okay? One of the anomalies, let me call it that, in this process and again, it's a peculiarly South African thing, is the fact that the rules that govern this process were literally copied, for lack of a better word. The DA took the rules. There were rules that were developed as a result of the outcome of the EFF impeachment case. Again, which we argued, the one that you and I were debating unsuccessfully about what is the meaning of predetermination. I don’t want to go back there. But as a result of that case, the rules were developed by this Parliament, and the DA took those rules, I suppose if you take a neutral view to it, so as not to reinvent the wheel and just change them here and there cosmetically, but essentially the same rules. Okay? Now, the problem with that, and I'm posing it to you again [whether] you agree with me or not that Section 89 of the Constitution is not really like Section 194 of the Constitution; it is Section 177, as I said to you, which is more akin to Section 194. So, as a result, it might have been a mistake – it will be resolved by other generations maybe – but it might be a mistake simply to transplant rules, which are meant for the impeachment of a President for this kind of thing we're dealing with here. It goes back to this question of suspension and the other intersection I was talking about. One of the most glaring differences between the two is that a President cannot be suspended if… you may or may not know this, whereas as a judge and the head of an institution… Sorry Chair? Can I just finish the question? I can see that there is a hand. I’ll just finish, yes. Maybe Hon Mileham will speak before he answers. But the point I'm making is whether you agree with me or not, with that summation that…particularly because a President can kill, I am exaggerating, 1000 people, but nothing can be done to them. They cannot be suspended until the second leg of what you and I have described happens which is to go to Parliament and get a two thirds majority. Do you agree or don’t you agree that there is that misalignment of the impeachment processes?
Mr Ebrahim: No, I don’t agree.
Adv Mpofu: Oh, okay. Alright.
Chairperson: Hon Mileham?
Mr Mileham: Chairperson, thank you and I didn't want to interrupt, Adv Mpofu, so I apologise for any disturbance. Chair, my concern is this, that what Adv Mpofu is addressing now relates to the Rules of Parliament and the processes that have been set up. As a Committee, we have no mandate, no authority whatsoever to make any finding or to change any of the Rules of Parliament, that would have to go through the Rules Committee and be adopted by the House. I don't quite and again it might be me – but I don't quite get the relevance of this line of questioning to the mandate of this Committee, namely to determine the veracity of the charges. I would really welcome some help here because we again seem to be going down a rabbit hole that doesn't address our core function. Thank you.
Chairperson: Alright, thank you, Hon Mileham. I’m following that. I’m waiting for the responses from Mr Hassen. So you think he's asked a question after hearing the response?
Adv Mpofu: No, I’m saying he’s asking me.
Chairperson: I’m watching that space, Hon Mileham. Because I think I will intervene when I need to do that. But I'm allowing all the clarifications and the interaction between Adv Mpofu and Mr Hassen. Otherwise, you're correct in what you've put on the table. Adv Mpofu?
Adv Mpofu: Chair? Yes, I think I'm happy to respond to Hon Mileham, I think he's raising an important issue.
Adv Mpofu: Thank you. That's all I was saying. And I don't feel that he’s interrupting me. It's very important, the question he's raising. In my view, with respect, my humble view, it's impossible. There is no committee of the National Assembly, actually no constitutional structure in this country, which can just operate in some bubble of its own. It has to operate within the constitutional framework that makes it – that constitutes it. That's what a constitutional democracy means. So there's no world in which the Committee can just say, ‘Look, we're just going to; we've got a mandate, we've been assigned this there are charges and we're just going to do this’, without being mindful of the constitutional context. I thought that's what this kind of witness was here for, not to talk about…This is the kind of witness who might not even have read the charges, he doesn't care about that. His evidence, as I understand it, is to situate the whole business within a particular constitutional context. It's not going to help if we're going to say, "Well, let’s just stick to the rules, move and get on with it". That’s fine. We can do that too. But then we mustn't call people like this. Because their function is really to go beyond and try and assist us in this novel world that we're entering – uncharted waters and all that.
Mr Mileham: Adv Mpofu, thank you. I understand what you're saying but my concern is that the role of the witness is to contextualise the functions, powers and role of the Public Protector, not the functions, powers and role of this Committee. And those are two very different things. For the purposes of what we're doing here today and over the next couple of weeks, what the witness is here for, is to tell us here's what the Public Protector is authorised by the Constitution to do. Here's the scope of her powers; here's where it is situated. Contextualise that rather than try and contextualise this Committee. I think that's the rabbit hole that I'm concerned we're going down.
Chairperson: Thank you Hon Mileham. I'm just going to quickly respond and then I'll ask you to proceed with the witness in the sense that the one part of what you say is correct, Hon Mileham, which is what Mr Hassen would have presented here. But it did not end there because he created a context…because the role of this Committee and the role of the Public Protector is contextualised, which is what he did. Even today, he started with a prelude that talked about the Constitution, the rules, and so on. I want us to [have] just a little bit of patience in that regard, to absorb all of those kinds of issues. Adv Mpofu, you have the platform, so we don’t eat too much into your time, as we’re heading towards 5 o’clock.
Adv Mpofu: No, thank you, Chair. Thank you, Chair. Well, maybe Hon Mileham and I will resolve that issue, even through another witness. Right. You also made a statement the last time you were here about…that Section 194 is to protect the Office and not the person. Now I want to again explore in the same way this statement which, as you might guess, I don't agree with. But as I say, we'll bring witnesses who will contextualise it, but in fairness to you, I need to put this to you. Have you read the Certification Judgement of the Constitutional Court?
Mr Ebrahim: Yes, I did.
Adv Mpofu: Right. And just so that we're clear, I have no problem with accepting upfront, the fact that the overall intention of any removal process is obviously to protect something like an institution. That's not rocket science. If it's a school, they will say we're firing this teacher, because the school must be protected. If it's some Pick n Pay, or whatever – the same. Okay, so don't get me wrong, I accept that. But I'm saying what must not be lost sight of if you've read the Certification Judgement is that at the same time, there is the value of independence, which must be protected equally. In other words, it doesn't help to just elevate the value of accountability and sacrifice other values. There are the values of human dignity, there are values of ubuntu; there are all sorts of values… rule of law and so on. Now, in that mix, would you accept at a bare minimum, that one of the purposes of Section 194 is to protect the person?
Mr Ebrahim: No, it is to protect the Office.
Adv Mpofu: Only?
Mr Ebrahim: May I explain?
Adv Mpofu: No, it's fine.
Mr Ebrahim: I think it's actually quite an important point that’s being made, and a lot turns on it.
Chairperson: It's fine, go ahead.
Mr Ebrahim: I want to refer you to and it’s in my notes in paragraph 89 and the reference is to the Public Protector v Commissioner for South African Revenue Service. The quotation is a very useful one for this Committee. It's at paragraph 44 and it says, “Axiomatically, the Public Protector’s office is more important than any incumbent. The impact of certain types of conduct that shake its operations at the foundations may outlive the terms of office of a number of incumbents. Needless to say, as the Judiciary, we must not be guilty of contributing to the weakening of that office. You weaken it, you weaken our constitutional democracy. Its potency, its attractiveness to those it must serve, its effectiveness to deliver on the constitutional mandate, must be preserved for posterity.” What, in effect, is the case is that the Office is far more important than the incumbent. In fact, the Office needs to be protected against the conduct of the incumbent only because of the possibility of long-term impact in terms of what is being said. I think it's quite an important statement that has been made.
Adv Mpofu: Okay, thank you Mr Hassen. I think, again, you don’t understand what I’m saying. That case… I was in … I argued that case. Okay? That's another case which I argued in the Constitutional Court. And we succeeded in that case. To illustrate the following point, not the point that you seem to be making, that statement was made by Madlanga J and in a completely different context. The paragraph preceding the one that you're saying talks about the phrase that Madlanga J used – the "disturbing frequency" with which our courts were singling out the Public Protector for personal costs. Okay? Because I had argued in that case, for the first time, that the Public Protector was being…that it was being made fashionable to visit her with particular costs. Just for free, I'll tell you the judge, in that case, had literally every paragraph, like Mr Samuel, had some insults and adjectives or whatever about the Public Protector. The court found that each of those was completely unwarranted. There was simply no basis for it. It was just, you know, momentum that the Public Protector must just be disparaged. Okay? And the court said the following – here in the Constitutional Court, we have had four cases where the Public Protector has been visited with personal costs and it said we've rejected all, except one of them. That was the CIEX…what we know now in this room as the CIEX case. Okay? It then said we're cautioning the courts not to think that the Public Protector is "fair game” to be visited by those costs – that's actually the words that were used by the Constitutional Court. Then he said because even if you might…well… okay, that's my editing…you might not like the incumbent but the Office is more important, because if you, by targeting the incumbent – advertently or inadvertently weaken the Office, then you weaken the institution. So that statement they are making was put in a completely different…it should not be taken out of context, to mean that the Office is more important than the person. Actually, in that case, it was the exact opposite, because we were talking about the person but the judge made that statement. The point I'm simply making to Mr Hassen, and I thought I was making it easy…Mr Ebrahim, sorry…I thought that I was making it easy for you when I started by the concession that the Office is important so that you don't think we have any difference there. The only point I'm making to you is to say in a constitutional state, in protecting the Office or whatever, the office is just a building of bricks or whatever. In protecting the Office, we should be mindful to ensure that the human rights of the human being are protected, one. Two, because of the nature of this particular office, you must also protect its independence. And to that extent, Section 194 is a protective measure. Agree or don't agree?
Mr Ebrahim: I hear you.
Adv Mpofu: No, I know you hear me.
Mr Ebrahim: I hear you and understand you.
Adv Mpofu: But you don’t agree?
Mr Ebrahim: I’m not sure where you’re going with that argument.
Adv Mpofu: No, I’m not going… I’m just asking you a very simple question. Do you agree that Section 194 is a protective measure? Yes or no? I'm not going anywhere.
Mr Ebrahim: I'm not sure if I would regard it as a protective measure.
Adv Mpofu: Okay, let me assist you. That’s why I started by asking you whether you've read the Certification case. Do you know that as a result of the Certification directly as a result, or rather, let me put it this way - when our Constitution was passed, the removal yardstick for the Public Protector was 50% plus one, right?
Mr Ebrahim: Yes.
Adv Mpofu: The Certification case said no.
Mr Ebrahim: Correct.
Adv Mpofu: Because this person will be investigating powerful people in the Executive and will be vulnerable to victimisation. We must lift the yardstick to two thirds. Would you agree that that was a protective measure?
Mr Ebrahim: It was a measure to ensure and secure the independence of the Public Protector.
Adv Mpofu: Good. Thank you, we're getting somewhere now. That's what I was saying to you when you said you didn't know where I was going. In the first instance, it was to protect the independence of the institution, granted. But do you also agree that in the second instance, it was therefore a measure to also protect the incumbent from victimisation, from possible victimisation, theoretical potential victimisation?
Mr Ebrahim: As the protection against all public officials in the sense that they should be protected against victimisation? I have no difficulty with arguing that the Public Protector conceptually in terms of the law has to be protected, yes.
Adv Mpofu: Okay. Good. I’ll take that as a yes. Alright now…And it looks we've travelled together properly. Within that, what you and I have agreed, would you agree that it is to overstate the case to say that Section 194 is to protect the Office and not the person? The correct statement is that Section 194 is to protect the institution, yes, the independence of the institution and the incumbent. Would you agree? And it’s not just the Public Protector by the way, it's also the Auditor-General. That’s also a crucial thing because of all the Chapter 9 institutions….the Certification singled out the AG and the PP for this extra protection, agreed?
Mr Ebrahim: Yes.
Adv Mpofu: Good. So, okay, I don't want to mislead you into agreeing with two propositions, so I’m breaking it down. We've agreed on the second one. The real issue I was conversing with you is that would you agree therefore, that your statement needs to be altered, tempered, amended, whatever you call it, from this rigid way you put it: Section 194 is to protect the Office and not the person? Now that's clear: that's black and white. And I'm saying it's not – it's much greyer than that. That section, yes, has got measures to protect the institution obviously, just as the removal of a judge is to protect the judiciary, nobody can argue about that. But the extra purpose or purposes are to protect the independence and the incumbent as a human being; as a person; as a bearer of human rights in their own right. Correct?
Mr Ebrahim: I don’t read what you are reading into it. I don’t agree with that.
Adv Mpofu: Okay. Alright, I give up again. Yeah, that's fine. I thought we were getting somewhere. Alright. Do you think that the EFF Nkandla case was a major turning point? In my view, you don’t have to go that far, we wouldn’t be sitting here if that case had not happened. But I don't want you…you don't have to agree with that necessarily. But do you think that it was a major turning point in the evolution of this constitutional era?
Mr Ebrahim: I'm not sure what you mean by that, so I’m not sure if I can agree with that…
Adv Mpofu: Which part don’t you understand? Turning point? You don’t know what a turning point is?
Mr Ebrahim: I know what a turning point is but turning point from what? Turning point from what to what?
Adv Mpofu: Okay. Prior to the EFF Nkandla case, it was believed and even widely accepted…
Chairperson: Just as we had agreed, we will be wrapping at 5.
Adv Mpofu: Yes.
Chairperson: Thank you.
Adv Mpofu: Thanks Chair. Prior to the Nkandla case, do you agree that there was not quite consensus, but there was acceptance that the remedial powers of the Public Protector were recommendations? In fact, I remember in this very Parliament, there was hot debate around the Nkandla issue, where the Chair of the Committee, Dr Motshekga, kept on reminding everyone that these were mere recommendations. But as from that point, and actually there was a case of the DA that just come from the SCA…Actually what happened is that the DA joined our case because this very point was raised in a DA case in the SCA. And so it was convenient for it to be…Those are the days when the DA was on the side of those who wanted to ensure that kind of accountability. But that's a story for another day. But in that case, it was then determined for the first time that remedial powers of a Public Protector are binding: almost. And this was, well, for all constitutionalists, this was a revolutionary thing, but you don’t seem to think it was a turning point. And that would then elevate the powers of the Public Protector, not quite to be like a court order. But almost there. In other words, you could only not comply with powers of the Public Protector, if they've been set aside. Otherwise, you can go to jail, kind of. You don’t regard that as a turning point in the area we're discussing?
Mr Ebrahim: I would describe it somewhat differently. I think what has been happening is that when it comes to the question of remedial powers… So it's quite a novel constitutional instrument, an authority or a power given to the Public Protector. What has happened in our law is that it has been evolving and it's been going through a journey through all the jurisprudence. It was left for clarification as to what the authority and the power of declaration of the remedial action, would be. What we've had in our jurisprudence is an evolution of really defining the limits, the boundaries, and really the extent of it all. So yes, remedial powers have been regarded as something that it's imperative, it's a requirement.
Adv Mpofu: Binding?
Mr Ebrahim: It had to be binding and the only way to challenge it is by a judicial review.
Adv Mpofu: Yes, believe me, I was there. So you don't have to summarise the case for me. I'm saying…That's not what I'm asking you. I'm asking you whether that which you have just described, should be described as a major momentous turning point? Let me maybe assist you this way. Before that, I could have the Public Protector making a finding against me that I've done this or the other, and quite frankly, I'll take it into the dustbin, then so what? In the stakes of accountability for the first time, I could not do that. Now I had to go to court and challenge it, or face the consequences. If that's something like that, why do you have a difficulty with accepting that that was a major turning point?
Mr Ebrahim: I think you're ascribing various adjectives to what was a…
Adv Mpofu: Okay, let’s forget ‘major’. Was it a turning point?
Mr Ebrahim: I think it's for the first time that the court had clearly declared really what the authority was.
Adv Mpofu: Alright, I give up. Okay, that’s fine. You know, I don’t know why you would have a problem while every scholar that I know in this area accepts, what in Afrikaans we call a clear ‘punt’ but there you are, Mr Ebrahim. If you don’t think so, you don’t think so. Now, and this is the last topic I will explore with you. Chair, if you can just give me a few extra minutes? Because unfortunately, I've not been able to cover the ground because Mr Ebrahim is just not playing ball. Let me ask you this. Okay, Chair, sorry, it's not the last point: 1 and a half. Let me start with the half. The half is the… I call it half because as I said…firstly, I promised you that I'm not going to go back to it but I was not under oath. The second part is a completely different issue. Remember the debate you and I had about the nature and purpose of the inquiry vis-à-vis the whole thing about predetermination?
Mr Ebrahim: Yeah.
Adv Mpofu: Okay, now, if you go to paragraph 207 of the EFF Impeachment case. Yeah, it's the one that, if you remember, it's around 178 or 179, that is where they started to talk about institutional predetermination.
Mr Ebrahim: I’m trying to look for the authority. I don’t have the document.
Adv Mpofu: You don’t have it? Okay, fine. I’ll read it out to you, or it can also be put up. It also touches on this thing about the removal committee and so on. The Acting Speaker was Mr Tsenoli, whom I rate very highly on this area. He is one of the few people in this Parliament who understands at least by his actions, which seems to understand from… fortunately he was the Acting Speaker when we brought this to court, and it says, “The Acting Speaker agrees with the applicants" …that will be us and the DA, “that a removal of the President must be preceded by a finding by the Assembly that the President has committed a serious misconduct or a serious violation of the Constitution or the law. This view of the parties accords with the language and requirements of section 89(1). If the President is removed in terms of section 89(1)(a) or (b), he or she may forfeit benefits of the office. That is why the Acting Speaker describes those provisions as requiring proof of wrongdoing on the part of the President.” Now, because of time, I will not read this with an earlier paragraph, I think it's paragraph 137, where the same judge said that the reason why we have to go through all this rigmarole is because the impeachment is by definition punitive to the person. But we've explored that. And we've disagreed on it. But would you agree, at least that this seems to suggest that a removal process properly defined can then only happen post the finding of the committee such as this one?
Mr Ebrahim: Yes, that’s correct. A committee must, as per 194(1).
Adv Mpofu: Yeah, thank you. That’s fine. Then, the next question is going be quite long-ish. Because I have to keep to my promise that it's the last one. Or rather, it's the last area I want us to explore. There are – and it goes back, Mr Ebrahim, to this question about the role of judiciary in a process like this, which, I think, any constitutional scholar would agree, should be, let’s say, avoided. Any notion that an office bearer is being impeached by the judiciary should be avoided because of the separation of powers, you would agree?
Mr Ebrahim: Sure.
Adv Mpofu: Yes. Now, what are we to do, given that understanding? With a factual situation where there's a court judgement, we know that it's binding in law. But as you and I should know, you don't get bound by the facts. The rule stare decisis doesn't apply to the facts because no facts are ever the same anyway. What is to be done about a situation where a judgement, let's say, says 'Public Protector is totally inept' or whatever, and ‘must be done away with because of this factual situation: she took this pen, she put it here instead of putting it here and so on and so on’. Then we come here and have a situation where we actually find that, ‘No, the Public Protector did not even touch the pen’, and there are two schools of thought seemingly here at least. One says 'Well, a court is a court, its binding, goodbye'. Or you say, ‘Well on these facts…which is why we have an inquiry. I think in fairness you have said that on these facts before us as a committee, this did not happen; therefore that finding is not going to influence us, which is what the theory we contend. I'll make one example because we don't have time. There’s a judgement already here, we have a judgement where it was said that the Public Protector was mala fide and all sorts of things. Because in her report, it had been explicitly stated that she had not seen a particular report, and that's just wrong. It's not there. We asked a witness who was sitting where you are, theoretically, ‘where is it’? And he couldn't find it. It's not there: It's just simply not there. Assume for a minute that I'm correct. It's not there. Explicitly or otherwise. Yeah. Now should we then say, ‘No, we don't care. Even though we…’. This, as a committee, we all agree that it's not there but because the judge said as a result of that non-fact, she is mala fide. Can you see where I'm going with this? I'm saying what should be done in those… There are many other examples. In the CIEX [matter], it's the same thing. The judge said…she said something about vulnerability. A witness, Mr Kekana says, ‘Oh, I was just asking myself something’, and then it was heaped on her, and she was condemned. But I don’t want…we’ll do that as we proceed. Yeah. But what should you do in those kinds of situations?
Mr Ebrahim: Chairperson, the issue is quite a fundamental one. We've just been through the issue of a remedial action issued by a Public Protector and the strength and the importance of it. We're now talking about a judgement of court. We're suggesting somewhat differently the moment a country has less regard for the judgments of its courts, the constitutional democracy, if that's what it is, is in trouble. We should be cautious of not treating a judgement of a court with the seriousness that I believe it deserves in terms of the concept of the rule of law.
Adv Mpofu: Okay thank you. So that answer therefore suggests that…
Chairperson: Can we wrap up Adv Mpofu?
Adv Mpofu: Yes, Chair. I’ve promised, Chair. No, I think then we’re clear on the value or lack thereof, of your testimony. Just to be fair to you, how I summarise what you’re saying therefore, is that, what we call in the township, ‘Khethile, Khetile’ [stick with your choice]. Once the court has started, if it says the sun sets from the west, then the sun sets from the west. In other words, this thing called an inquiry, you know, to inquire, is to inquire, Mr Ebrahim. What then would be the point? Then we don't need an inquiry because the judges have told us, and the rule of law etc. says that we… all the kind of emotional statements that you’ve just made now, which is generally true, the day we deviate from the courts…but that’s not what I'm asking you to do. I’m saying there is a constitutional paradox, and if you don’t see it, you don’t see it. Between that which you're saying, which is correct, and the duty to inquire into the facts. If you don’t see the paradox, then we stop here. But if you see it, how should it be navigated?
Mr Ebrahim: Chairperson, I'm not sure where that is going. The point is, it's not whether I see it or I don't see it. It is whether I agree with it or I don't agree with it. We are talking here in a committee of Parliament, the body that is required to make laws where judicia…, where judgments are going in a direction which is considered to be inadequate or inappropriate. This is a place where laws are made, where corrective action can be taken. This is where these matters are dealt with. It's not a question of "calling" before you. You have two choices, either you accept the judgments of court, because that's what they are, and they are there to be respected, or you develop laws, which will change the laws of this country in terms of which the law will then be redefined. It's not a question of whether I see it or I don’t see it. It's a question of whether one can agree with that or not in a committee of Parliament which is here to make the laws. If there are problems with the way in which courts deal with it, change the laws.
Adv Mpofu: So in other words, we're bound by the fact?
Chairperson: Your last question, Adv Mpofu.
Adv Mpofu: I promise, Chair. So therefore, we are bound by the facts, not just by the law, and therefore there's no need to inquire into the facts? That's really what you're saying?
Mr Ebrahim. No, Chairperson, that's absolutely incorrect. We're not bound by facts. This is an institution of Parliament and Parliament has the ultimate authority to make laws provided that it is consistent with the Constitution. That's all it requires. Parliament is entitled to make whatever laws it intends to, provided it is consistent with this Constitution. If judgments of court are going in a direction which the representatives, the voice of the people, feels different, then it is up to Parliament to decide differently. It's not a question of whether I see what you're saying or not. I don't quite agree with the approach that you're adopting.
Adv Mpofu: No, that’s fine. Chair, It's a Friday. Okay, I think I'll end it with my refrain, ‘I give up’.
Chairperson: Thank you Adv Mpofu. Thank you Mr Hassen Ebrahim, for your time. Just to indicate to you as we continue to do our work, at whatever point that Members would want to interact with yourself, that where possible you will be able to make yourself available. Thank you for your time and having come back today. Any last words you want to say?
Mr Ebrahim: Chairperson, it's been an absolute pleasure. It hasn’t been the easiest of exercises to be in but I'm grateful for the invitation to participate. It's been at my own instance, in the sense that I've given up my time and effort to actually be here because I appreciate the value and importance of what you are undertaking. And I'm grateful for this opportunity. Thank you very much.
Chairperson: Yeah, just before we stop, my last comment I want to make before we close the meeting. Adv Mpofu would have lifted me up as an example at some point here of a chairperson who has a particular view of the nature of this committee. I thought it's important that I just clarify that and say, this entire Committee, including its Chair, is of the same understanding of our role as clearly defined in Section 194, with the big bold heading, reading ‘Removal from Office’ – that’s Section 194. We've been very consistent, including in the rules. Rule 129(a)(d) the functions and powers of this committee reads, “The committee must, when the Assembly has approved the recommendations of the independent panel in terms of rule 129(z), proceed to conduct an inquiry and establish the veracity of the charges and report to the National Assembly thereon.” And so you're quite correct before the removal becomes a decision of the National Assembly. But it can't do that decision, if this Committee would not do its work. So there's a symbiotic kind of relations there. The Chair is clarifying so I don't know, maybe it might have gotten a little bit different, but I've been very consistent in terms of that, from the rulemaking process up until now. I hope the matter is put to rest.
Adv Mpofu: Chair, I don’t want to disturb you. I want to assist you. It will be put to rest in the forthcoming judgement. It was argued extensively on Monday and on Tuesday.
Chairperson: Yes, I was going to make that point that the matter would have even been canvassed at that level, but I thought that for the sake of the Committee and the Chair, that clarity must be put. Thank you very much to all of you. We adjourn the hearing today. We'll meet on Monday [1 August] as we proceed with our work. Thank you very much. Meeting adjourned.
Dyantyi, Mr QR
Denner, Ms H
Dlakude, Ms DE
Gondwe, Dr M
Hendricks, Mr MGE
Hermans, Ms J
Herron, Mr BN
Holomisa, Dr BH
Joemat-Pettersson, Ms TM
Legwase, Ms TI
Lotriet, Prof A
Luzipo, Mr S
Mahlaule, Mr MG
Majozi, Ms Z
Malema, Mr J
Mananiso, Ms JS
Maneli, Mr BM
Maotwe, Ms OMC
Marawu, Ms TL
Mgweba, Ms T
Mileham, Mr K
Msimang, Prof CT
Mulder, Dr CP
Nkosi, Mr BS
Nodada, Mr BB
Nqola, Mr X
Peters, Ms ED
Seabi, Mr M A
Shaik Emam, Mr AM
Siwela, Ms VS
Skosana, Mr GJ
Sukers, Ms ME
Tlhape, Ms ME
Tseke, Ms GK
Tshabalala, Ms J
Van Minnen, Ms BM
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