PP Inquiry day 12: Sphelo Samuel

Committee on Section 194 Enquiry

01 August 2022
Chairperson: Mr Q Dyantyi (ANC)
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Meeting Summary

Motion initiating Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from Independent Panel furnished to the NA

NA Rules governing removal

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


Video part 2 

In a hybrid meeting, the Section 194 Committee met to continue cross examination of the witness, Mr Sphelo Samuel. Similar to what occurred on Friday 29 July, 40 minutes were spent by Committee Members arguing over whether it was fair for Adv Mpofu to continue with his cross-examination, after it had been established on Friday that Adv Mpofu’s cross-examination of Mr Samuel had not been completed.

Adv Mpofu asked a series of questions to confirm some of Mr Samuel’s previous statements from the previous week’s hearings. He questioned Mr Samuel’s alleged criminality for his assault case and tried to discredit Mr Samuel’s statements on being present at certain meetings with the Public Protector; on his not being influenced by external parties; on his role in the Free State Office of the Public Protector, as well as his academic qualifications. Mr Samuel pointed out that academic achievements do not necessarily translate to practical legal application, as was the case with Adv Mkhwebane. Adv Mpofu also focused on the missing letters in a file used for inspections, that should have been found at the Office of the Public Protector and trying to prove Mr Samuel’s absence at the Vrede Dairy Farm inspection site.

After lunch, Adv Mpofu repeatedly implied that Mr Samuel had been lying and would be tried for perjury. Adv Mpofu’s line of questioning devolved into accusations of Mr Samuel being an “unrepentant liar”. Certain Committee members pointed out that Adv Mpofu was intimidating and threatening the witness. The Chairperson said that since Mr Samuel had continued engaging with Adv Mpofu, he had not seen the need to intervene. Mr Samuel replied that he did indeed feel threatened. Adv Mpofu said that on “the issue of perjury it's not a threat, it's a promise”. Adv Mpofu said that Mr Samuel’s allegations against the Public Protector were based on Mr Samuel being a disgruntled employee who was looking for revenge because of his assault case and the subsequent disciplinary process. He said that this cross-examination had been a “waste of time” as Mr Samuel had been lying the entire time.

The evidence leaders started with their questioning of the witness. Adv Ncumisa Mayosi led the brief questioning. She referred to photos Mr Samuel had shared with the evidence leaders during the lunch break. Adv Mpofu raised strongly a complaint about the Public Protector's legal team not receiving this evidence in advance as required. Adv Bawa pointed to the technical difficulties in meeting this requirement. Adv Mpofu also complained about the Committee moving to the evidence leaders’ questioning. The Chairperson noted directive 6.16 and that this had been agreed to on 29 July. Adv Mpofu accused the evidence leaders of asking Mr Samuel leading questions. Adv Mayosi replied that this was permitted, as laid out in the Committee directives. Adv Mpofu argued that the problem of Mr Samuel being present at the inspection site was a main line of his questioning and access to the photographs, that Mr Samuels sent to the evidence leaders during lunch, would have been helpful. He said that the current information blockage to the Office of the Public Protector was a new problem, unrelated to the previous suspension of the PP’s email account.

The Committee discussed the programme for the next two weeks with an expected end of hearings on 19 August. Thereafter, the Committee would deliberate on the evidence. On 23 September, the Committee would propose a draft report and on 24 October it would adopt the final report. The Chairperson said that the programme and process was dynamic and would change depending on what came up.

Meeting report

Opening remarks
The Chairperson welcomed everyone, including Adv Dali Mpofu in person and Adv Busisiwe Mkhwebane inabsentia. The Committee would continue with the cross-examination of Mr Sphelo Samuel, which was scheduled to end at 3pm, then the evidence leaders would raise any questions they had, followed by any questions from Committee. The Committee would continue with four or five other witnesses this week, so more time restrictions would be imposed going forward.

Ms O Maotwe (EFF) brought up the confusion surrounding the cross-examination, citing that the Chairperson was not being fair and unbiased. The Chairperson called her to order.

Mr B Nodada (DA) agreed with the Chairperson and said that people should not get excited in the morning.

Mr J Malema (EFF) said that Ms Maotwe had not been out of order and should be allowed to complete her point. He said that no one was getting excited.

Ms D Dlakude (ANC) repeated the Chairperson’s opening remarks on the proceedings for the day.

Mr V Zungula (ATM) said that on Friday 29 July it had been raised that the cross-examination had been completed, but Mr Samuel had been brought back for cross-examination today. The Chairperson should apologise for Friday’s disagreement on this point.

The Chairperson said he was out of order and that Mr Zungula was over his one-minute limit. This went back and forth for five minutes. Mr Zungula was removed from the online platform.

Mr Malema raised a point of order that the Chairperson was being unfair and removing Members. He said that the Chairperson needed to listen to Members and not impose different rules for different people.

Ms V Siwela (ANC) agreed with Ms Dlakude that the Committee should proceed with the cross-examination. The calling out of ANC members was not acceptable as ANC members wanted the process to continue as laid out in the directives.

Mr K Mileham (DA) made a point of privilege to ask if the Public Protector could be put up on a separate virtual screen.

Mr X Nqola (ANC) wished to point Committee members to directives 6.3 and 6.4 on time limits for Members speaking. The speaking time limits were fair as laid out in the directives.

Mr B Maneli (ANC) agreed with others on proceeding with the meeting. The Chairperson had indicated the proceedings in his closing summary on Friday 29 July. ANC members had been present on the virtual platform until the end of the meeting.

Dr A Lotriet (DA) agreed with the previous speakers. The Committee had their directives, and the Chairperson could make rulings and decisions. On allowing the evidence leaders to question the witness again, this was part of normal procedure.

The Chairperson explained that Mr Zungula had been asked multiple times to end his point. He had been removed in terms of Rule 70 of the National Assembly, which he then read out. He explained that Ms Maotwe had correctly raised a point of clarification on Mr Samuel returning for cross-examination. She had challenged the Chairperson on what he had said on the previous Friday. It had been explained that there would be further opportunity for Adv Mpofu to complete his cross-examination of Mr Samuel. This was what she had been ruled as out of order for.

The Chairperson asked for the Public Protector, Adv Busisiwe Mkhwebane, to say for herself whether she was present on the virtual platform.

Adv Mpofu was being argumentative on this, until Adv Mkhwebane eventually confirmed her presence.

Ms Maotwe belaboured her previous point on the Committee’s proceedings and complained about being constantly interrupted by the Chairperson.

Adv Mpofu said that this would cut into his cross-examination time, which the Chairperson acknowledged.

Cross-examination of Mr Sphelo Samuel continued

Adv Mpofu: Thank you. Mr Samuel, we have to finish you today. So, we're going to be moving quite fast, with your cooperation. Because there's a lot to cover. And I just want to...I'll try and make it easy again, like I did the other day, unsuccessfully. So, what I'm going to do, I'm going to give you a quick recap on some of the issues that I think we have covered so that we don't...the problem when cross examination is interrupted, is that we might slide back and cover things that we have already covered. So, I want us to move forward. I'm just going to give you 12 points of what I think we have already covered so that we don't have to go back there, unless if you disagree with me. The first point is that you have now...you've considered that there was possibly no link between the phone call and the change of mind of the PP, correct?

Mr Samuel: That is correct.

Adv Mpofu: And you've also said that there's nothing to indicate that the Vrede Report was discussed in the meeting between the PP and the Premier 15-minute meeting, correct?

Mr Samuel: That is correct.

Adv Mpofu: And you've also considered that the undertaking that was made to expedite the Vrede Report that the PP was referring to in her email, was made in the legislature in the open, correct?

Mr Samuel: Yes, that is correct.

Adv Mpofu: And okay, this one is a bit tricky. You've considered that there might have been good reasons to abolish the think tank. But that one, I must agree with you. It was...you made a qualified concession, because you said it could have been continued virtually, correct?

Mr Samuel: That is correct.

Adv Mpofu: Then you've also considered, I think this was from of the Members, that the reach or impact of radio outreach could be larger than physical community meetings? Correct?

Mr Samuel: No, no, that is not.

Adv Mpofu: That's fine. Thank you. Yes, that's what I want. So that we clarify, when you don't agree, tell me. Let me quickly deal with that one, then. You do...you accept, don't you, that the community meetings were not abolished, but they were reduced to about 200-and-something, correct?

Mr Samuel: That is correct.

Adv Mpofu: And you admit as well, that you were told that there was going to be an infusion of radio slots so as to complement the outreach programme, correct?

Mr Samuel: That is correct.

Adv Mpofu: You accept that just as a general statement that radio reaches more people than admitting in one village, I mean, one of our stations, uKozi, reaches about six million people. So I'm sure you accept that.

Mr Samuel: I do. I do accept that. But I qualify it to say that it is a one way medium, you know? It is not necessarily interactive or leads to the acceptance of complaints. Yes.

Adv Mpofu: Fair enough. But in this case, you know that one of the things that would be given in those radio interactions would be the hotline, or let me call it the toll-free number, correct?

Mr Samuel: That's correct. Yes.

Adv Mpofu: And therefore, that would allow for more, you're quite right, for more dual communication, correct?

Adv Mpofu: All right. Then we move on to the next issue is that… Yeah, you have not read the Independent Panel report, I think that's what you said. I brought it to your attention, but you are aware of the parts that I brought to attention, correct?

Mr Samuel: Correct.

Mr Samuel: Yes, that's correct.

Adv Mpofu: And furthermore, contrary to the impression created in your statement, you actually have not read the Committee rules, correct?

Mr Samuel: That is correct.

Adv Mpofu: Okay, then the next one. Regarding the birthday, you also considered that MEC Zwane may not have been invited to the birthday party, correct?

Mr Samuel: Could you repeat that?

Adv Mpofu: I'm saying regarding the birthday party, consider that MEC Zwane may not have been invited. In other words, you could not dispute the PP's version that he was not invited, correct?

Mr Samuel: Yes, that's correct.

Adv Mpofu: Then, we also, I think we agreed that given the timelines, and I don't want to go into them now, the statement that the reinvestigation was being swept under the carpet was not correct.

Mr Samuel: Yes, to the extent that it was eventually released, yes.

Adv Mpofu: Yes. Thank you. And then the next one was you apologised to her for calling her an 'aspirant prosecutor'.

Mr Samuel: Yes. On the basis that...[Adv Mpofu: that was what you believe]. Yes, I believe she's going to testify also to that effect that she was in fact the prosecutor. If that is the case, yes, I apologise.

Adv Mpofu: No, fair enough. And you also said that, I mean, in fairness to you, that's what you believed at the time. It was not out of malice.

Mr Samuel: Yes, correct.

Adv Mpofu: Yes. And then you also apologised for insulting her intelligence, saying that that was not your intention, correct?

Mr Samuel: That is correct.

Adv Mpofu: Okay. And then you also informed us that some of the information in your document, in your affidavit, your second affidavit, did not necessarily come from you, but came from the evidence leaders, correct?

Mr Samuel: That is correct.

Adv Mpofu: Okay. And then lastly, you and I agreed that your leave to appeal in regard to your criminal matter, does not suspend your conviction. In other words, that was the exchange that you and I had that as we are sitting here, although it's not nice, you are still a convicted criminal in the legal sense of the word. Correct?

Mr Samuel: No, we did not agree. And we still don't.

Adv Mpofu: We still don't agree? Yeah, that's fine. No, no, that's your right, if you don't agree. That's why I'm saying then we'll clarify. Yeah. All right. You accept, though that – I think I gave you enough examples that I don't want to go into that – you accept that until a conviction is set aside, it stands. Just in law, as a general statement?

Mr Samuel: Yes, I accept that.

Adv Mpofu: Yes. And yours was a conviction for the criminal offence of assault, correct?

Mr Samuel: That is correct.

Adv Mpofu: And it still stands, correct?

Mr Samuel: It still stands until it is vindicated. Because I'm challenging it, yes.

Adv Mpofu: Well, yeah, but that's like saying nothing. It stands until the appeal is finalised. Correct?

Mr Samuel: I would like to qualify that. You see, when you say it stands, you create the impression that it is effective. And that is the part I'm disputing; it is not effective until it is properly confirmed or set aside.

Adv Mpofu: Okay, well, the, it...I don't want to get into a big legal debate here. But you are forcing me to go to the examples. You agree that if you were actually sitting in jail while awaiting your appeal, you would still be sitting there?

Mr Samuel: The conviction was for one month; I would long have been out.

Adv Mpofu: Okay, forget that. I'm talking principle, Mr Samuel. If the conviction was for 10 years, and you had appealed it; you would be waiting for it, but you'd still be in jail. Correct?

Mr Samuel: Correct. Yes. If I did not apply for bail, yes.

Adv Mpofu: Yes, yes. Okay, that's fine. And you're aware, by the way, that when you appealed...you appealed both the sentence and the conviction?

Mr Samuel: Correct, yes.

Adv Mpofu: Yes, you are aware that it sometimes happens that when you do that, that's why we sometimes advise clients not to appeal, especially a light sentence, that it can actually be increased. In other words, you can...on appeal, they can say you must go to for six months to jail without the option of a fine, you accept that?

Mr Samuel: Yes, I was aware of it.

Adv Mpofu: Okay. Thank you. Right. Okay, no, that's good. Then those are the issues that I think we can then put behind us, because we have found agreement on. Now, I want us to move forward. And I'm going to, again, to play fair with you. This time, I'm going to give you five statements. Which if you agree with, then we'll end the cross examination. But if you don't agree with them, then we have to explore them. Alright, the first one, and again, we've covered this. An hour, it won't fit into that rule, because I know that you don't agree with me. But the first proposition that I put to you, and one of the Members also put to you, was that you are you are a sexist, who is not prepared to be led by a woman. I know you didn't agree with that. But you remember us having that discussion?

Mr Samuel: Yes, I remember that discussion. And I...

Adv Mpofu: Yes. And no doubt for the record, I'm sure you still don't agree. Okay, and then the second one was that I indicated to you that you have what one might call an exaggerated sense of your own comparative intellectual and academic abilities. In this aspect, you felt that Adv Mkhwebane was – or that you are better than her, in the sense that you explained. Correct?

Mr Samuel: Yes, you put it to me. And dispute that and said I could have made better decisions than she did.

Adv Mpofu: Yes. Yeah. No, no. Fair enough. And you also, just let's just explore that one quickly. I don't want to go back to…at least you apologise for the intelligence part. But let's deal with the academic achievement. You hold a BProc. Correct?

Mr Samuel: That's correct.

Adv Mpofu: And that's it. That's the end of your legal qualification?

Mr Samuel: That is correct. Yes. Excluding the certificate that I referred you to, yes.

Adv Mpofu: Yes. Yeah. And Adv Mkhwebane also holds a BProc like you, correct?

Mr Samuel: Yes. That is correct.

Adv Mpofu: Yes. Except that on top of that she has an LLB, which you don't have. Correct?

Mr Samuel: That is correct. Yes.

Adv Mpofu: And on top of that, she has a diploma in corporate law, which you don't have, correct?

Mr Samuel: I don't have it. Yes. Correct.

Adv Mpofu: And then on top of that, she has a higher diploma in tax law, which you don't have, correct?

Mr Samuel: Correct.

Adv Mpofu: Okay. So I'll just leave it there. I think it speaks for itself who is more academically achieved. You'd agree with that? Correct?

Mr Samuel: Yes, I agree that she has more academic achievements. But I would like to say, Adv Mpofu, in all fairness and in all humility and with respect, one can have as many degrees as a thermometer, but it does not necessarily translate to…what I said about her. I just want to leave it at that.

Adv Mpofu: No, that's fine. I mean, we're not talking about 'one'. I'm talking about Adv Mkhwebane, and I'm saying you. So let's not talk about some ephemeral 'one'. In this case, between you and her, she has these achievements, which you don't have, correct?

Mr Samuel: I've considered that.

Adv Mpofu: Thank you. Because it doesn't help to have some potential, you know, we want demonstrated academic achievements. Yeah. And confirmed by higher institutions. But I think you get the point. Correct?

Mr Samuel: I get the point. But, you know, in practical application of her work has she really...has it made any difference?

Adv Mpofu: Yes, it has. I know you have a different view. But yes, yeah. So in other words, you think you would have done better?

Mr Samuel: I certainly do.

Adv Mpofu: Yeah, I think that's our biggest problem in this whole cross examination, but that's fine. So let's leave that then – the exaggerated sense of achievement. So the next issue which, for those we covered the last time, I was just recapping them. This is...I now have three premises, Mr Samuel, which I'm going to explore with you. I want you to, I'll give you an opportunity, I'm going to demonstrate that your testimony is worth zero. And that it should not be taken into account by this Committee for the reasons that we've already given, but also because it is tainted by bias. Part of that bias is this unfair comparison that you make. I think one of the Members also mentioned this, between Adv Madonsela and Adv Mkhwebane, which has no basis. In fact, it's just a sentiment that you have, you and others in our society. So you don't, I know, you probably don't agree, but you understand what I'm saying?

Mr Samuel: I certainly understand what you're saying, but yes, you're correct. I don't agree.

Adv Mpofu: Sure, sure. Fair enough. And I'm also going to say that your testimony is also tainted by what I'll call 'further criminality'. Apart from the one that you are convicted of, that you've also made yourself guilty of perjury, on at least one or up to three occasions, which I will demonstrate. I'm sure you don't agree with that either?

Mr Samuel: Yes, I don't.

Adv Mpofu: Finally, I will also demonstrate that your testimony is really just like that of mistake. I can find nothing more than the ramblings of a disgruntled employee who only discovered his conscience, when it was clear that you are facing disciplinary action. But you are quiet since 2017, 2018, 2019. And only in 2020, you developed some fake conscience, after it became clear that the institution was being sued for your assault of Mr Seabi. That might have been a coincidence. I'm sorry, sorry. Sorry. You were trying to answer.

Mr Samuel: No I was saying...I was going to say, I dispute that. If you lead or put evidence to me, that disputes that – where I agree – we are agreed. But so far, I don't agree.

Adv Mpofu: No. Fair enough. But at least you agree, surely about the sequence that you were, according to you, you noticed all these things, what Mr [Tebogo] Kekana would call 'oddities'. But you kept quiet for all those years, until it became clear that the company was being sued for, in respect of your assault. In other words, you only started to speak in 2020. Just as a dry statement, there might have been good reasons, or bad reasons. But as a matter of fact, you only started going public in 2020. Correct?

Mr Samuel: Right now as it is that broad statement? I do not. Yes, I spoke out in 2020, when I sent my complaint to the Speaker, but that was not as a result of action being taken against me. Action had not been taken against me up to that point.

Adv Mpofu: No, that's fine. All right. Now, thank you, Mr Samuel so that's okay. Because now I know if we agree, and where we don't agree. Oh, yes, yes. That's fine. So effectively, my statement is that you are motivated by revenge, rather than some philanthropic sense of putting things right and all that you claim in your statement. Again, I know you dispute it. Good. Okay, now then, we can start with...I think we've cleaned up the...where we are. Right. Now, I want to start with... you would agree with me that your entire...the premise of your evidence about what happened in the past, is really anchored, among other things, on this notion that you told the Public Protector at the inspection in loco that you wanted subpoenas to be issued against the politicians. In other words, [Free State Premier] Mr Magashule and [Agriculture MEC] Mr Zwane, correct?

Mr Samuel: Yes, that would correct.

Adv Mpofu: And she refused

Mr Samuel: Yes, she did.

Adv Mpofu: And she told you that she didn't want findings against the politicians.

Mr Samuel: That is correct.

Adv Mpofu: And that's not recorded anywhere. It was a conversation between you and her?

Mr Samuel: That's correct. Yes.

Chairperson: Okay, so before we proceed, Adv Mpofu, just to remind you, Mr Samuel, you are still speaking through the Chair. You might be on air, but you are still speaking through the Chair. And I just want to have that indicated. Thank you proceed. Sorry for disturbing you.

Adv Mpofu: Thank you, Chair. Right. Now, if you were seconded to Gauteng

Mr Samuel: I was seconded to Gauteng immediately after the stakeholder engagement. It was in March 2017, yes.

Adv Mpofu: In March 2017.

Mr Samuel: Correct, yes.

Adv Mpofu: Effectively, you were starting in March 2017? The letter was in February, just to assist you. Yes. I think you're right. The letter was sent to you in February. But I just wanted to know when were you...it was effective on 1 March.

Mr Samuel: I can't recall the effective date, but it was definitely after the stakeholder engagement in the Free State. And that was...so the effectiveness... I'm not sure whether they can backdate it, but I certainly started in Gauteng towards the end of March.

Adv Mpofu: Okay, good. So by the time the inspection in loco had happened, you were already working in Gauteng?

Mr Samuel: That is correct.

Adv Mpofu: And you are not, therefore, really not part of the investigation. Correct?

Mr Samuel: I would say I was still part of the investigation, because no one...I was not removed, so to speak, from the activities in the Free State. They still required me, whenever they needed me. Yes. So I was really not completely removed from the team, to say.

Adv Mpofu: Yeah, no, no, no, I accept that they are not. Nobody said, "Okay, you must never utter the word 'Vrede' again". But you were effectively no longer on the ground in that investigation, correct?

Mr Samuel: That's correct.

Adv Mpofu: And, in fact, we were still even checking whether you were even at the site inspection. What do you say about that?

Mr Samuel: I know I was definitely there. Any suggestion that I was not would, quite frankly, be false.

Adv Mpofu: Yes. Okay. No, it's fine. We'll come to that. And assuming you were there, you would have been coming, really, as a spare wheel, correct?

Mr Samuel: I specifically asked whether I was required to be there. I think that request, I mean, that question I posed to the Office of the Public Protector was going to be [interrupted by Adv Mpofu who is inaudible]. And he confirmed that the PP wants me there. So I was not a spare wheel, I was I was instructed to be there.

Adv Mpofu: Okay, no. No, no, no. That's the point I'm making, Mr Samuel. If you had not been now seconded in Gauteng, you wouldn't have had to ask Ephraim. Obviously, you would have to be there. The mere fact that you had to ask means that you knew that it might be that you are not needed, correct?

Mr Samuel: Yes, that was a possibility that I might not.

Adv Mpofu: That's the only distinction I'm making. I'm simply saying you yourself had to ask. Whereas before that it would not…you would not have had to ask. Ms [Erika] Cilliers didn't have to ask, but she was part of the investigation, correct?

Mr Samuel: That's correct.

Adv Mpofu: All right. Who else was there?

Mr Samuel: Chair, from the Free State office, my recollection is that Adv Cilliers was there, Adv Sisa Mlonyeni was there, Adv Vincent Maseko was there. Yeah, I think that was, you know, the team from the Free State. And then from Head Office, I recall Adv Matlawe was there and the PP of course. I can't recall who else, at this stage, I can't recall who else was there from head office.

Adv Mpofu: Okay. Did you claim travel and money to go to this place?

Mr Samuel: Yes, I did.

Adv Mpofu: And did you actually go?

Mr Samuel: Yes, I did.

Adv Mpofu: And your PA would confirm that?

Mr Samuel: Yes, I believe she would.

Adv Mpofu: Right. Now, then assuming you were there for now, wouldn't you find it strange behaviour, seeing that – okay, maybe the word 'spare wheel' is a bit, it's not nice – seeing that you were no longer hands-on in this investigation, that you would have told the Public Protector that you wanted to issue subpoenas, which she denies?

Mr Samuel: Chair, I need to explain my, you know, circumstances at the time. As I've said, even though I was seconded to the Gauteng office, I was not removed, because in the sense that someone was put to act in my place in the Free State. It was left to me to then appoint whoever was acting, you know, amongst the senior investigators. Adv Cilliers would have been one, but not exclusively, they were rotating. And so to that extent, I was still very much involved in the activities in the Free State, as perhaps will be shown by the email correspondence and so on. The initial idea was that I was going to be in Gauteng for one month. But given the issues that I was required to firstly investigate and the work that I was supposed to bring up to date and so on, it was extended to three months. And so I went back to the Free State at the end of June, when I submitted my report. It would not be odd of me to be involved in the inspection and investigation of the Vrede project within that time, because I was going to go back to the Free State and expect that to be up to speed with the investigation, and so on. So there was nothing.

Adv Mpofu: Okay, but you know what I mean, Mr Samuel, I'm saying, I accept that for the sake of this discussion. But against the background that you and I have agreed on, you are now seconded to somewhere else, you even had to ask whether it would be necessary for you to be there. So let's not try to dodge the fact that you are no longer centrally involved. I think you've conceded to that. All I'm saying is that in the light of all that, wouldn't you find it odd that you, not the people who are now on the ground in the investigation, would be the person speaking privately to the Public Protector about your intentions to issue a subpoena to persons? If you don't find it odd, you just say so but...

Mr Samuel: Yes. I don't find it odd.

Adv Mpofu: Okay. That's fine. All right. And this idea of yours, you only communicated privately to the PP, you didn't communicate it to Adv Cilliers or other people like that who were hands-on with the project, correct?

Mr Samuel: I may have, you know, during discussions about the investigation., I'm sure I must have raised it with Adv Cilliers and her team. Yeah, this could not have been my own thinking and not involve the team. So I'm sure I must have said that. I can't recall a specific date and time that I might have done that.

Adv Mpofu: Yeah. You know the words 'I'm sure' they mean something different in English and in isiXhosa. Okay, when you say, 'I'm sure' in Xhosa you mean, 'I'm not sure'. Which one is it? Are you saying, 'you must have'? I think that's what it is.

Mr Samuel: I must've...I can't say there's a specific date, yes, I recall that. Yes. I cannot recall a specific day that we discussed it, but it might have come up in one of our discussions.

Adv Mpofu: Might have come up. Or it might not have come up as well.

Mr Samuel: Also possible. It is probable, it is very probable. I did not have to have witnesses in speaking to the Public Protector. I know I did. That is a fact.

Adv Mpofu: Yes. Thank you. So on that scenario, then, you are out there in Gauteng. You are an invitee for all intents and purposes. And you don't speak to the people who are on the ground. And you just tell the PP that you want subpoenas to be issued, how probable is that? You've explained the process of how people who were implicated get engaged. You've been there for almost 20 years, correct?

Mr Samuel: That's correct.

Adv Mpofu: And was there a letter of allegations that had been sent to the Premier and the MEC at that stage?

Mr Samuel: I think there was, yes.

Adv Mpofu: Where is it?

Mr Samuel: Chair, I'm sitting here. I don't have that letter and the file was sent to head office.

Adv Mpofu: Okay. Is it possible that there wasn't such a letter in existence at that time?

Mr Samuel: No, it's not. It's not possible. I'm making a specific allegation that they were not cooperating with the investigation. That was not a thumb-suck. I must have contacted...I did contact them initially and they just ignored me.

Adv Mpofu: Yes, no, that's fine. We'll follow that. So you accept that if the Committee is not furnished with such letters of allegation, then this whole thing, then we must just forget about it? I'm sorry, sorry, Mr Samuel.

Mr Samuel: I want to answer that. I mean, I've said the file was sent to head office. [Adv Mpofu: Yes]. So, if the file is still there, the letters should be in the file. But if they are not, I would understand why they're not there, because of your line of questioning now.

Adv Mpofu: Forget about my line of questioning. Let's just stick to the truth. The...I'm saying...you are therefore saying it's not possible that those letters do not exist or were not in existence at that stage as in April, on 10 April.

Mr Samuel: Yes. It's not possible. They were there.

Adv Mpofu: They were there. Those letters were specifically to Mr Magashule and Mr Zwane about what?

Mr Samuel: About their involvement in the Vrede dairy project.

Adv Mpofu: Okay, you'll...

Mr Samuel: Let me...Can I just add to that? There was another guy, I recall there was another...There were other unrelated investigations, where we would conduct HODs, heads of departments, with most of the...because the allegations would have occurred in their departments. On one such occasion, I sent a letter to one of the HODs. I think it was the late Mr [Sandile] Msibi, the Police, Roads, and Transport HOD, was there. The response came from the Premier's Office, where he sort of admonished me in contacting his, what he called, his HODs. He said the HODs in the Free State report directly to him and any communication to them must come to him and not to the HODs. So, knowing that, yes...

Adv Mpofu: No, carry on, Mr Samuel.

Mr Samuel: No, so I'm saying the Vrede dairy project was the brainchild of the Premier and was to be executed by the MEC in that department because it was relevant to agriculture. Brainchild, as in, I've made reference to the fact that the Premier and the MEC owned up and took ownership of this project. That was why it was necessary to ask them questions or to get their side of the story in relation to their involvement.

Mr Samuel: Yes, Mr Samuel, we'll get there believe me. I'm asking you a simpler question now. Whether you are saying as a matter of fact that as at that point, there were letters of allegations directed not to an HOD, to the Premier and the MEC specifically around whatever you are saying the words, whatever such letters.

Mr Samuel: Yes, there were such letters.

Adv Mpofu: Who wrote them?

Mr Samuel: I think...my recollection is that I also wrote those letters. I'm not sure that they were written prior to that by my predecessor, but I definitely wrote those letters.

Adv Mpofu: Mr Samuel, I want us to be at that point, the [audio cut out for a few seconds]

Chairperson: Adv Mpofu? You just cut when you said 'Mr Samuel, I want us to be' and then we lost you for a while.

Adv Mpofu: Okay, thank you. Am I back?

Chairperson: You're back now. You're back now.

Adv Mpofu: Thank you. Chairperson. I was saying Mr Samuel, I want us to be clear on this. I don't want this 'must have…must have' here. I'm saying to you, the sequence is very simple. The investigation, Mr Samuel?

Mr Samuel: Yes, Chair, I'm here, but I didn't hear.

Adv Mpofu: Okay.

Mr Samuel: You completely disappeared.

Chairperson: Yes. I don't know what is...you cut again and then we missed what you were saying. [Adv Mpofu: Okay]. He also missed it.

Adv Mpofu: Yes, no, no, must be something to do with the connectivity. I'm saying Mr Samuel, I want us to be clear on this, I don't want the stories about 'this must have happened or might have happened' and so on. Let me take you through the sequence: 2013 the investigation starts, correct?

Mr Samuel: That's correct.

Adv Mpofu: By your favourite Adv Madonsela, correct?

Mr Samuel: The investigation started by Adv Madonsela began the rest of the...

Adv Mpofu: Yes, in 2018. And by 2016, nothing is odd and in 2014 there is a draft report, correct? Provisional report?

Mr Samuel: That is correct.

Adv Mpofu: That's November 2014.

Mr Samuel: That’s correct.

Adv Mpofu: Between 2014….two years later, nothing has really happened. Correct?

Mr Samuel: Incorrect.

Adv Mpofu: Okay, between 2014 and 2016. What actually happened? In that...

Mr Samuel: We pursued the investigation and to that extent we proceeded with the politicians as well.

Adv Mpofu: In those two years?

Mr Samuel: Yes.

Adv Mpofu: What? Okay, you're just telling us like...

Mr Samuel: You will recall, Chair, that I've testified to the fact that it was Adv Madonsela's specific instructions that the role of politicians should be pursued, should be explored. The report was inadequate in that sense. [Adv Mpofu: Yeah]. So yes, the investigation continued.

Adv Mpofu: Okay. So for two years, she was making that sentence that there is no involvement of the politicians. She...this sentence took a period of two years to utter and for it to land on you. What else happened?

Mr Samuel: Well, then the investigation continued. We tried getting subpoenas when we were not getting any cooperation from the politicians, and that was refused.

Adv Mpofu: I see. So you asked Adv Madonsela for a subpoena?

Mr Samuel: Oh, no, not Adv Madonsela. At the time, I mean, the specific person that I asked for a subpoena was Adv Mkhwebane.

Adv Mpofu: Okay, Mr Samuel, please listen to me carefully. We are talking about the two-year period between November 2014 of the provisional report and the departure of Adv Mkhwebane, two years later, in October 2016….Yeah, I forget, Madonsela, Adv Mkhwebane is going nowhere. I'm sorry. I made a mistake. That's the two-year period I'm talking about, do you understand?

Mr Samuel: Yes, I understand.

Adv Mpofu: Yeah. I'm saying in that two-year period, other than uttering one sentence which takes two seconds: 'I'm not happy with the absence of involvement of politicians in this report'. What else happened in that 24 months? You know how long two years is?

Mr Samuel: Yes, I know how long two years is, Chair.

Adv Mpofu: Yes, tell us tell us that...

Mr Samuel: The investigation continued. We explored quite a number of things, including, you know, speaking to people that you consider…associations you consider to be experts that I referred to last week. It was not like that was, you know, nothing happened, we just put the file away.

Adv Mpofu: Yeah, no. Sorry, Mr Samuel.

Mr Samuel: Yes. We went on investigating that matter.

Adv Mpofu: Doing what?

Mr Samuel: Without, you know, without the file in front of me to check the investigation diary and so on, I cannot tell you what was happening there. But the investigation was ongoing until it was, you know, finalised and sent to head office.

Adv Mpofu: No, no, no, no, please. Mr Samuel, I want you to tell this Committee. What Adv Madonsela, that you say was super-efficient, and you and her doing this investigation, what did you do between November 2014 and October 2016? What did you do apart from one sentence about unhappiness with politicians? What?

Mr Samuel: Chair, I believe I've answered this question. I can't answer with specific detail of what we did. We investigated and we continued investigating that.

Adv Mpofu: Okay, Mr Samuel, let's move…let's break it down. That's meaningless – that thing of 'we investigated'.

Chairperson: I think, Adv Mpofu, yes, I think breaking it down will help. Please break it down for... Thank you.

Adv Mpofu: Did you write...Did you revise the 2014 Report in any way?

Mr Samuel: Yes, we did.

Adv Mpofu: When did you do that?

Mr Samuel: That we did it between 2015 and yeah, basically, when I started getting involved with it, there were quite a number of drafts that we worked on. That means we did revise that report.

Adv Mpofu: Where are those drafts?

Mr Samuel: They're in the file, most of them.

Adv Mpofu: What happened to the rest? What happened to the others? You say, 'most of them'.

Mr Samuel: Most, if not all of them, must be in the file. I also had some on my laptop so we referred to them.

Adv Mpofu: Okay, shall...can we then leave it at this? That nothing of any significance happened because by the time Adv Mkhwebane got into the office, she was given the November 2014 draft. So there could not have been anything worth noting.

Mr Samuel: I did not agree with that.

Adv Mpofu: Okay, we will request the evidence leader then to give us the full file. You're saying we will find all these drafts you are talking about then?

Chairperson: Just pause, Adv Mpofu, just pause. Adv Bawa.

Mr Samuel: Yes.

Evidence leader, Adv Bawa: Just to place on record that our endeavours to get the full file out of the Office of the Public Protector was not successful. It could not be found anywhere.

Chairperson: Okay, thank you. Proceed, Adv Mpofu.

Adv Mpofu: Thank you. Thank you. Well, there we are, Mr Samuel, it looks like your drafts have evaporated. Okay, so there's nothing that you can tell us just from your own memory, as the person, assuming we won't find this draft somewhere. There's nothing of significance that you can say: we did this, we went to, you did not do an inspection with Adv Madonsela, for example?

Mr Samuel: No, I did not do an inspection.

Adv Mpofu: You did not issue any subpoenas?

Mr Samuel: No, I did not. But that is not to say that my predecessor may not have done an inspection. I can't speak for that period. I don't recall that. I know that there was an inspection prior to that done by the team. I don't know with who, but I'm speaking now on my involvement since 2015. I had not done that with Adv Madonsela.

Adv Mpofu: Yes, I'm talking...Well, I can tell you for free, the only person who did an inspection in loco at that level was Adv Mkhwebane. In that three years, Adv Madonsela did not do such an inspection, you agree? At least not that you know of.

Mr Samuel: Yes, I mean, if you're telling me that that is the case, I can't confirm or deny that. I won't, I can't dispute it.

Adv Mpofu: Now do you agree that two year...three years, actually, is a very long time? I mean you can finish a degree in three years. Nothing of any significance had happened. Is that your evidence?

Mr Samuel: That is not my evidence. That is your assessment, Chair.

Adv Mpofu: Yes. Okay. Can you refute my assessment? What apart from the report and the complaint about politicians, what else happened?

Mr Samuel: I have stated that I cannot recall the specifics over that period.

Adv Mpofu: All right. That's fine. And yet, with Adv Mkhwebane, within three weeks of her taking office, she was inquiring what's happening with this Vrede matter, correct?

Mr Samuel: That might be correct. Yes. Because it was part of the handover report. It was the...

Adv Mpofu: Yes, it was part of the things that she found just sitting there, not being attended to. And then, within a few months thereof, there was movement, she was already cracking the whip, and asking you guys to be on the ball, around about March 2017. That's what, four or five months after she has taken over? She was making inquiries about Section 7(9) notices and that kind of thing. Correct? At least from the emails.

Mr Samuel: I would agree.

Adv Mpofu: Yes. And within in less than a year after she had taken over, the final report was out, correct?

Mr Samuel: Yes, between 2017 and 2018, yes, it was less than a year. Correct. Yes.

Adv Mpofu: Yeah, actually, it was something like nine or ten months, correct? But the report was...

Mr Samuel: Between March and February, that takes us...my calculation is it's 11 months, Chair.

Adv Mpofu: No, no. I think we are calculating... I'm saying Adv Mkhwebane started working there in October 2016, correct?

Mr Samuel: Correct. Yes.

Adv Mpofu: By the end of August 2017, the report was out.

Mr Samuel: No, that's not correct.

Adv Mpofu: The final report was not out by the end of August 2017?

Mr Samuel: It was out in February.

Adv Mpofu: No, no. Okay. Maybe let me put it this way. The report from... Sorry, yes, you are talking about the public report. I'm saying the report from the team, from Adv Cilliers, to the final report being sent to the Public Protector was out by the end of August 2018.

Mr Samuel: Yes, that is correct.

Adv Mpofu: Agreed. Okay. And then within, that was my next point, within 15 months of her being employed, the report was out in February 2018, correct.

Mr Samuel: Correct.

Adv Mpofu: So this thing that had been sitting there for more than three years was moved within a period of about a year, to completion, correct?

Mr Samuel: That is correct.

Adv Mpofu: Okay. Now, the...and you agree that in...now, let's go back to what you and I were discussing, which is the so-called request for subpoenas, which I was saying is improbable. You accept that if there were no letters of allegations, it would have been improper to issue subpoenas, you know, about what was called the three-strikes rule?

Mr Samuel: Yes, I knew about the three strikes rule and your question that it would have been improper...it would have been. Yes, it would have been odd and...

Adv Mpofu: Premature.

Mr Samuel: Premature. Yes. Yes.


Adv Mpofu: Thank you, Mr Samuel. We... Yeah, we stopped at the point of declaring that the subpoenas would have been premature. And we were speaking a language that the Members might not know about. Can you explain to the Members what the three-strikes rule that you and I were referring to is or was?

Mr Samuel: Yes, Chair, the three-strikes rule was that we first sent a letter of inquiry to the person either implicated or the person that can assist in the investigation. And if no response is received, we then send a reminder with a tight deadline. If that is also not adhered to, we then use whatever powers we have to force or to enforce compliance. It can either be by subpoena or any other means that is at our disposal, including but not limited to, perhaps issuing a warrant, if the information is perhaps there, or we suspect that it is there at the particular premises.

Adv Mpofu: All right, so that's what I'm asking you. Why then would you have defied the three-strikes rule and just make this private proposal to the Public Protector for the issuance of subpoenas, when the three-strikes had not been complied with?

Mr Samuel: Chair, the three-strikes rule is not necessarily prescriptive that it should be done exactly, you know, that way. I mean, in a case, for instance, like this one where the failure to comply came from politicians – it would be the Public Protector that would need to enforce the three-strikes rule because any further action, which is a departure from a normal approach to the politician, would have to be enforced by her or at least under her hand. Either, you know, a letter saying to the politician 'Consent, you are not complying or you're not assisting our investigation. We require you to respond within x time'. It was not for me to enforce it. By that I'm not saying that it was up to the Public Protector to do, I would have had to bring it to her attention, and perhaps would have had to consider that restriction. But, you know, it didn't cross my mind at the time, I felt that given the length of the time that the investigation had been going on, we just needed to go and issue a subpoena.

Adv Mpofu: Yes, but this is the point I'm making, which I'm going to ask you, Mr Samuel, and I'm putting it to you in fairness. This whole thing just doesn't make sense. Here you are, I've already said this, you are no longer involved. You're asked to be involved, you're invited on your version. The Public Protector doesn't even remember you being there. But that's a matter we will deal with. Because we're being frustrated by the Public Protector's Office in getting information where we can conclusively make this statement, but we're working on it, Chairperson. But I'm saying it still doesn't make sense. Because you're outside there. You come in, you have some private discussion. You don't speak to the people who are involved in the investigation. And you defy the three-strikes rule and say to the Public Protector, she must now invoke a one-strike rule and go straight to subpoenas. I mean, does that make sense even to you?

Mr Samuel: There was nothing strange with that.

Adv Mpofu: Okay, on what basis were you, I'm sorry, were you still talking?

Mr Samuel: No, I'm saying there's nothing extraordinary. There's nothing strange with that. It is what I felt needed to be done at the time. As I said, the three-strikes rule was not prescriptive. It was just a guideline.

Adv Mpofu: Yes, but you…so you were asking the Public Protector to commit an illegality? Because what would happen if she had listened to you, issued the subpoenas, then she goes to court and they say you did not apply the three-strikes rule. You just somehow issued subpoenas against people, terrorising them?

Mr Samuel: Chair, there will be nothing illegal about that. It would just be one of the means by which we exercise our powers to secure information and cooperation.

Adv Mpofu: Are you being serious? Have you ever heard of a situation where a subpoena is issued as the first resort, without having requested the person? Would you... are you saying that's not illegal where you just subpoena someone without having... okay. Is it fair, do you think? No, sorry, Mr Samuel. I wanted to say that you know what your subpoena is? A subpoena is an instruction for you to appear somewhere on pain of going to jail. Can we start there? I mean, we just start by saying to someone look, you must come and see me next week; otherwise, you're going to jail, without ever having asked them. Even this Committee, with all its flaws, says that you have to ask the person. That's what we did with the President Ramaphosa. We had to ask him voluntarily to come to testify. Then he wrote us last week, he says no, he's not prepared to do so. Now we're going to subpoena him. But if we had just subpoenaed him, do you think that would have been fair?

Mr Samuel: Perhaps it would not have been fair. But coming back to our situation, to my situation here. It was not the first time that we had written to the politicians. It might not have been three times or four times, but it was definitely not the first time, which is why I was asking for a subpoena.

Adv Mpofu: You wrote to them about what Mr Samuel? Let's... please, man, just assist us here. Did you ever say to those politicians, you are suspected of maladministration or wronged, whatever you call it, corruption, all those things, directly, not, and I'm not disputing the fact that they would have been aware that the HOD had been investigated and so on. And the Accountant General (AG), I'm not talking about that. Did you ever write letters to the MEC and the Premier saying now you are implicated, yourselves, not indirectly?

Mr Samuel: I would not have used the word that they are implicated. I would have said to them, we are investigating this project or allegations related to this project and this happened under your watch, both as MEC and as HOD. Yeah, yes. And so we would like you to furnish us with whatever information is relevant, and where we want that specific information, we'll then state in the letter, what it is that we want them to assist us with. [Adv Mpofu: Yes]. And then any implication after the investigation would have come out have, you know, if we're going to make adverse findings implicating them, then it will have come in the Section 7(9) letters.

Adv Mpofu: So at least we agree until this current Public Protector got into Office, the MEC and Premier were not implicated parties?

Mr Samuel: Yes, they were not implicated, by any direct or indirect information.

Adv Mpofu: The first time, actually, that there was any suggestion of their being involved in maladministration was around about, let's say, between March and June 2017 when the current Public Protector started cracking the whip on this report, correct?

Mr Samuel: Yes, it's possible. Yeah.

Adv Mpofu: It's not 'possible'; you know it's true. Mr Samuel, please.

Mr Samuel: No, I, if you say that it's true, and I know it, and I personally... you're saying, you know, to me, I don't agree.

Adv Mpofu: All right, fine. Let's make it easy. Adv Mkhwebane took office on 16 October 2016. Correct?

Mr Samuel: That's correct.

Adv Mpofu: Before that date, were politicians ever implicated parties?

Mr Samuel: Not by any direct or indirect information.

Adv Mpofu: Correct. So then what's the problem? The first time that they were even issued with Section 7(9) letters was after she took over, correct?

Mr Samuel: That is correct.

Adv Mpofu: Yes. During the time of Adv Madonsela, they were never even issued with those notices, correct?

Mr Samuel: I believe so. Yes, they were not issued with those notices.

Adv Mpofu: You believe so? All right. Now, was there a sense that Adv Madonsela, to put it kindly, was obsessed with this issue of involving politicians, whether there was evidence thereof or not?

Mr Samuel: No, I wouldn't say she was obsessed. There was no such sense that I could make out. [Adv Mpofu: Okay]. Well, there were allegations, certainly in the media, about the fact that this project happened under the watch of the two politicians and to that extent, we could not, or at least, she could not ignore that. And which is why she insisted that we should look at their role. Up until then the only implication that was there was against the Premier [Adv Mpofu: sure] to the extent or either, but I think it was against the Premier, to the extent that flowing from the Accountant General (AG) report, they had not taken action against the HOD.

Adv Mpofu: Disciplinary action, no, fair enough. Yes. No, but that's not what we're talking about. That's not what you are obsessed with, as well. You, when you are saying that the Public Protector must issue subpoenas, it was not about that. It was about something bigger, correct?

Mr Samuel: Yes, that's correct.

Adv Mpofu: Yes. And that's something bigger had never been the subject of any letter to the Premier and the MEC. Correct?

Mr Samuel: That something bigger was about their involvement and their ownership of the project. That was the issue…that was the issue that I had raised in the letters to them.

Adv Mpofu: Okay, so you have raised issues about their direct involvement. Is that what you're saying?

Mr Samuel: That's correct. Yes.

Adv Mpofu: And these are the letters that were missing?

Mr Samuel: The letters that sitting here I cannot produce, Chair, but I knew they were in the file and that file was sent to head office. So, if anyone had control or has that file, it's either Head Office or I don't know, I believe perhaps the Public Protector might have.

Adv Mpofu: Well, the Public Protector is suspended, so she has no access to anything to defend it. I've just told you that she can't even get the proof that you were not in the in loco inspection. We are still trying to find that.

Mr Samuel: My response, Chair, is that I was there at the inspection in loco. The file was sent to head office, and sitting here I also don't have control. Taking what the evidence leader said earlier on, that despite their requests for the file, they did not get it, so I don't know who has it now.

Adv Mpofu: Okay. Let's go to page 2221, SS9. This is using the timeline that I was telling you about. This is three, four months after the PP has taken over. This is the period where I'm saying she's now trying to dig what has happened with this file that has been lying cold and this is Mr Matlawe writing to the PP. "Dear PP, the attached draft document which relates to the Vrede matter as raised by Minister Zwane yesterday" and I think he had raised it in Parliament or in the public domain. "These documents have been going to-and-fro". Okay, you agree with that? The documents had been going to-and-fro under your watch?

Mr Samuel: Yes, Chair.

Adv Mpofu: Yeah. Okay. And then it says, "because your predecessor" that would be Adv Madonsela, "felt that Free State did not address the issues". Free State means you, you and your people, correct?

Mr Samuel: That's correct, Chair.

Adv Mpofu: "...did not address the issues that were raised with her". I don't know by whom. But obviously, someone else had raised issues, other than the investigators. Correct?

Mr Samuel: Chair, can I ask your indulgence to go back to the previous question? Where Adv Mpofu says that the Free State would be me and the team? In relation to this letter, I'm just looking at the date now, that would be the team, certainly, but that would exclude me. I only came in later, after I transferred. Oh, sorry. No, that would be me. Sorry. My apologies. That was 2017. I thought it was 2015. Sorry.

Adv Mpofu: I forgive you. That's fine. Okay. So you and your people did not address the issues 'that were raised with her'? That was my question by whoever. We don't know who raised the questions with her, correct?

Mr Samuel: That's correct.

Adv Mpofu: But it was not raised by you, by the investigators.

Mr Samuel: That's correct, yes.

Adv Mpofu: It must be some external forces.

Mr Samuel: No, I don't understand.

Adv Mpofu: Okay. It's my... it was not raised by the team that was investigating. It must be someone else. We don't know. But it's someone external to the investigation.

Mr Samuel: What are you referring to? Someone raising?

Adv Mpofu: The last part that she felt that Free State did not address the issues 'that were raised with her'.

Mr Samuel: Okay. Yes.

Adv Mpofu: I think those were…those must have been raised by parties that were external to the investigation, obviously.

Mr Samuel: No, I can only speak about the fact that those issues were raised by the Public Protector. I don't know if anyone external would have raised them with her, certainly not with us.

Adv Mpofu: Okay, you know, the difference between the word 'with' and 'by'? She's not saying Free State did not address the issues that were raised by her. She says there were issues that were raised with her. That means by somebody else, correct?

Mr Samuel: It's possible but can't say that with certainty. I don't know. It's not to my knowledge that it was...

Adv Mpofu: English. It's a preposition, separate prepositions. That preposition, if it said issues that were raised by her, you would know what it means, correct?

Mr Samuel: That would be specific enough, yes.

Adv Mpofu: If it says 'with her' then it means someone else raised it with her. Correct? Simple English.

Mr Samuel: That's correct. It could be anyone, but I don't know who it could have been. It could have been someone internal but not necessarily involved with this investigation.

Adv Mpofu: That's fine. Don't worry. There's nothing that turns on that point. Says, here's the point. It says, so, at some point, it was a futile exercise to submit them to her, because she was expecting Free State to make specific findings, which it seems were not captured in the Section 7(9) notices and the draft provisional report. That one is clear. It became a futile exercise to even give her the reports, because she was adamant about these findings, which you as investigators were not making, correct?

Mr Samuel: That's correct.

Adv Mpofu: One can assume that it was not from laziness, on your part. It's because you had nothing to implicate the people she wanted to be implicated. Otherwise, you would have done so, correct?

Mr Samuel: That's correct.

Adv Mpofu: Thank you. Now, the... so this is what I'm talking about when I'm saying there was frustration. I was not putting it higher than this. You'd accept that Mr Matlawe's letter there expresses some frustration, some form of frustration?

Mr Samuel: Yes, I would accept it.

Adv Mpofu: Thank you. Now, I'm then saying that the first time that, at least when a written indication or confirmation that findings were made – and this also flies directly against your evidence that the Public Protector instructed you privately that she didn't want the politicians to be implicated – can go to 2261 [SS14].

Mr Samuel: Yes, I'm there.

Adv Mpofu: Right. You see this is Ms Cilliers writing to you.

Mr Samuel: That's correct. Yes.

Adv Mpofu: She says we're finished the report and we're starting the Section 7(9), correct?

Mr Samuel: Correct.

Adv Mpofu: Yes. We are making findings of maladministration against Premier and MEC. Do you see that?

Mr Samuel: Yes, I see it.

Adv Mpofu: Therefore three notices and one discretion notice to the SIU. So this is the first time that it is now being directly proposed that the Premier and the MEC must be confronted with the findings of maladministration against them, correct?

Mr Samuel: I wouldn't say that was the first time.

Adv Mpofu: Thank you. No, you're right. Actually, it was not the first time but that makes it worse for your theory. These letters have been mooted since March. When I'm saying this is the first time that we have evidence that those findings had already been made. You agree, you would I'm sure, that the letters, the Section 7(9) letters, had been spoken about since March, correct?

Mr Samuel: That's correct.

Adv Mpofu: Yes. That's why I'm saying it's even worse for you. Four months or five months into the term of Adv Mkhwebane, for the first time we are writing to the Premier and MEC, specifically about the findings against them of maladministration, correct?

Mr Samuel: Whether it was the first time or not, I can't recall. But yes, based on this, it could have been the first time.

Adv Mpofu: What other time, Mr Samuel? It was the first time. Why do you want to run away?

Mr Samuel: I cannot speak about the period before I was involved in the investigation. Yes. I was involved in investigation. To my recollection, this was the first time.

Adv Mpofu: Sorry, Mr Samuel. Yes, but when you were involved, surely, somebody gave you the history of what had happened, correct?

Mr Samuel: That's correct. Yes.

Adv Mpofu: That person never said that there were Section 7(9) notices against politicians, correct?

Mr Samuel: I cannot recall that I would have been told about Section 7(9) letters. If that was the case. You know, Section 7(9) letters are sent when we have finalised our investigation and we are likely to make adverse findings.

Adv Mpofu: Absolutely. That's the point I'm making. I'm saying, therefore, you and I don't know why you're making these qualifications. You and I agree that that between March and June, when this letter was being written, this was for the first time that (a) findings of maladministration directly against the Premier and MEC were made. Therefore, it follows logically they were entitled to Section 7(9) letters, correct?

Mr Samuel: Yes, that's correct. Yes.

Adv Mpofu: So, this notion that the Adv Mkhwebane was shielding politicians, is completely baseless because she was the first person, for the first time, or rather, under her regime, that there were direct findings of maladministration against the Premier and MEC. But now that this is done, what happens, Mr Samuel, after that, indeed in June, I think sometime in June, 7 June, indeed these Section 7(9) letters were dispatched, correct?

Mr Samuel: Yes, the Section 7(9) letters were dispatched. But I need... you see, you drew a conclusion before asking this question, which is a conclusion I want to dispute and qualify.

Adv Mpofu: Okay, fair enough.

Mr Samuel: When you're making reference to the first time findings, being made of maladministration against the Premier and the MEC, you must bear in mind that those letters were only confined to the findings that had been made by the AG, in the report of the AG. It was only confining it to those, not to their specific involvement, which they would have had to respond to in the letters that we had sent to them.

Adv Mpofu: Okay, Mr Samuel, yes. Let me just be clear with you. I accept that what you and I earlier called 'something bigger', do you remember that?

Mr Samuel: Yes, I remember.

Adv Mpofu: So, believe me, I'm very clear on this. All I'm saying to you is that the findings of any wrongdoing, direct maladministration, were made at this time that you and I have agreed, March and June, correct?

Mr Samuel: That is correct.

Adv Mpofu: Yes. I'm saying, in your view, it might have been that you think this is not sufficient. But at least it was something; it was something directly against them, correct?

Mr Samuel: That's correct.

Adv Mpofu: And it was happening for the first time, correct?

Mr Samuel: That's correct.

Adv Mpofu: Yes. However, Mr Samuel separately felt that there is something bigger that they should answer for, correct?

Mr Samuel: That's correct, yes.

Adv Mpofu: It was in respect of that something bigger that Mr Samuel wanted them to be subpoenaed. Correct?

Mr Samuel: That's correct.

Adv Mpofu: But Mr Samuel would have been breaking the law because he would be subpoenaing them without them even having known about the something bigger, let alone this something medium, that we're talking about. The first time that they would be hearing about this something bigger would have been in the phantom subpoenas?

Mr Samuel: I do not agree.

Adv Mpofu: That's fine. Don't worry. We'll walk this path together. Let's do it one by one. As far as the maladministration…Okay, let me put it this way. The attitude displayed to you in the private discussion with the Public Protector on 10 April, was that she doesn't want any adverse findings against these politicians. Correct?

Mr Samuel: Before I answer that question, can I just quickly get it from you, through you Chair? Are you in asking this question the way you do, are you saying the Public Protector now recalls that I was there?

Adv Mpofu: No, no, she doesn't. She refuted it with the contempt it deserves. I'm just saying that we don't yet have a proof because we're being frustrated. So we're working on your theory, because we can't wait for that. The Chair won't allow me to say let's turn down this cross examination, until we get those documents. If we have to recall you, we will recall you. So, for the sake of progress, I'm working on your theory. I'm saying even if you were there, which I don't accept, the attitude of the Public Protector, according to your theory, was that she doesn't want any adverse findings against these two politicians, correct?

Mr Samuel: That's correct. That attitude was reflected in what she said. It was not something that I imagined. It's what she said in response.

Adv Mpofu: Well, we don't agree on that one. But the... let me say that the... how is that consistent with this letter from Ms Cilliers, saying to the Public Protector, we are making findings, by the way, we're making findings of maladministration against the Premier and MEC. Didn't you say to her, but the Public Protector doesn't want any adverse findings against these people; you're going to be fired?

Mr Samuel: No, she knew, she knew that, because I had told her that the Public Protector didn't want any findings made against the politicians.

Adv Mpofu: And yet, she was bold enough to write this letter, basically saying the Public Protector can go and jump.

Mr Samuel: Based on the information she had, and on what she was referring to there. There was nothing wrong with what she said. I didn't find anything wrong.

Adv Mpofu: No, I know, Mr Samuel. I'm saying, you know, you've been told privately by the Public Protector. And you've told your colleague, she writes to you on 24 April, basically saying the Public Protector's... I don't care what she says, I'm doing this. Where is the part where you say, Ms Cilliers, do you know that you're playing with fire? I'm sitting here with an instruction not to implicate these people in anything.

Mr Samuel: You are…you want to put words that I should have said to Adv Cilliers. Words like, 'you can go and jump' and 'oh, she must disobey'. No, I did not do that. [Adv Mpofu: Okay]. That is the net effect of what happened, by putting them in the letters. Yes, it was a defiance, but not that. We discussed the difference. No.

Adv Mpofu: No, fine. Forgive me for when I say…I'm just exaggerating for effect. But I'm happy with your word. So you are saying this letter was being written in defiance?

Mr Samuel: It defied the instructions she had said 'we must not find against politicians'. Yes.

Adv Mpofu: And the defiance... Ms Cilliers was defying knowingly, because you had told her about the instruction.

Mr Samuel: Yes, I would say, I would say so. Knowingly, but not maliciously, but because she was basing it on the facts that were there beforehand. And that was based on the AG.

Adv Mpofu: Okay, then you have a couple of…about 10 days later...this is the person who's being defied now, at page 2401, Chairperson, at SS22.

Chairperson: Can you see it? There it is.

Adv Mpofu: Yeah. It's the one below. One below, please. Yes, the Public Protector writes to you, and Ms Cilliers of the defiance campaign. She says, "Good afternoon. Can I have an explanation as to why I was requested to sign the Section 7(9), which omitted issues the Premier and the MEC should respond on". Which means she knows that the Section 7(9)s are there. But she's saying that there are some omissions. Does that make sense to you, Mr Samuel? This is the person who's now being defied, basically saying make it better. The Section 7(9) letters.

Mr Samuel: Chair, I just want to, before I answer that question, I want to...Yes, I just wanted to satisfy myself that what I can recall is, in fact, the case here. What I can recall is that this was after the Premier had suggested that information, or attachments, that we were referring to in the Section 7(9) letter were not attached, and needed to be provided to him so that can make an informed response to the Section 7(9).

Adv Mpofu: Yeah, no, that's correct. That's my instructions as well. But that's not what I'm asking you. What I'm asking is that what this letter should be saying is that Mr Samuel, because it's to you as well, don't you know that I told you that you mustn't implicate these people? It can't be saying why have you omitted certain information from the Section 7(9)? Because this is the person that, on your strange version, you and Ms Cilliers are now busy defying. Do you understand what I'm asking you?

Mr Samuel: I understand what you're asking me [Adv Mpofu: What is the answer?], but it is the next lap, if you look at the next sentence, it says to we're sending the Section 7(9) for their information on the findings. So yes, it was that information that he was querying.

Adv Mpofu: I'm saying to you, whatever that information was, but the point I'm making is that she's (a) aware that there are Section 7(9) notices, which means these people are now being directly accused of something; (b) she's asking why certain information is omitted. Not why you have issued those letters, but why they are, let's put it like this, incomplete. Correct?

Mr Samuel: It was only the attachments being referred to here; it was not the information in the Section 7(9).

Adv Mpofu: Mr Samuel, please don't play games with us. The attachments were part of the Section 7(9) letters that Ms Cilliers had been referring to in 2261, where she says we are making findings of maladministration against the Premier and the MEC. Were they not?

Mr Samuel: Seeing that we're sending the Section 7(9), yes, they would have had to be the [inaudible as Adv Mpofu was talking over Mr Samuel]

Adv Mpofu: Yes, remember, this is about 12 days later, after that letter. All I'm saying to you, okay, anyway, I don't have to debate this with you. I'm going to argue that your evidence is just completely senseless. The objective evidence that I'm putting to you doesn't go along with this, with either your so-called request for subpoenas, which defy the three-strikes rule, as well as the alleged response by the PP, that she doesn't want these people to be implicated in anything. Because here, it's happening in front of her and she's not protesting, actually she's aiding and abetting the process and wanting the Section 7(9) information to be expedited. That's what I'm about to argue, you can comment if you like, but I'm not going to go around in circles with you.

Mr Samuel: If I'm to comment on that, I will repeat what I said, that this was only in relation to the attachments that were not attached to the Section 7(9). Perhaps if we go down to the email exchange there that would have been brought out by the letter that the Premier wrote to the Public Protector, to bring it to her attention that information is not attached, that he should respond to.

Adv Mpofu: [dismissively] Yeah, yeah. But that's got nothing to do with what you and I are discussing. Anyway, let's move on. So eventually, after all these things were fixed, you agree that the Public Protector signed the Section 7(9) notices.

Mr Samuel: My understanding is that as at that time, you know, when this was written she had already signed those Section 7(9) notices.

Adv Mpofu: Yes, with the defect, I'm saying once the defects had been resolved, the letters were then sent to the Premier and MEC, correct? And the HOD, of course.

Mr Samuel: No, the letters had already been sent. They were in their possession. It is only the attachments that were sent, subsequent to her signing and dispatching these letters.

Adv Mpofu: Yeah, that's even better. That's even better for me. I'm saying the Public Protector had, according to you, earlier signed the Section 7(9) notices, correct?

Mr Samuel: That's correct. Yes.

Adv Mpofu: And the Premier and the MEC responded thereto, correct?

Mr Samuel: I do not recall with the MEC, but I certainly do recall the Premier responding, yes.

Adv Mpofu: Right. And the Premier's response, where is it? Have you seen it?

Mr Samuel: Yes, I saw it, because I think a copy was sent through to us as well, of the response. But you know the response was done directly to the Public Protector, to the private office.

Adv Mpofu: To Head Office. Right. And sorry. [pause; Adv Mpofu's camera and mic were off] Thank you, Chairperson. Sorry I was just taking instructions. You will recall then that Mr Magashule, at least, gave a long explanation, I think about 12 or 13 pages, in response, correct?

Mr Samuel: I recall that he responded, but I can't recall how long this explanation was.

Adv Mpofu: Okay. You might not recall its length, but at least you might recall its content that it gave explanations, correct?

Mr Samuel: Yes, it did. But I can't recall the contents, not without confirming.

Adv Mpofu: You can't...Okay, fair enough. You can't recall what explanations he gave to what was being suggested in the Section 7(9) letters, correct?

Mr Samuel: Yes, that's correct.

Adv Mpofu: Yeah. Now explain this to the Committee, then. How is it that you can say that…or let me put it this way – the purpose of Section 7(9) is to give audi alteram partem, correct?

Mr Samuel: That is correct.

Adv Mpofu: In other words, if I'm implicated in some wrongdoing. The Public Protector has been criticised in the CR17 letter, for example, to say that she did not comply with Section 7(9); you will recall that, that's one of the cases you cite in your affidavit, correct?

Mr Samuel: Correct.

Adv Mpofu: Yes. So here the Section 7(9). The reason why there is this, the courts feel so strongly, is because they say as Mr Loggerenberg was at pains to tell us, if he had been given a chance to respond, maybe the outcome would have been different, correct?

Mr Samuel: Correct.

Adv Mpofu: In other words, the response you cannot…How are you able to say to this Committee, that the non-inclusion of the Premier is wrongful, if you don't know what his response was? What if he says, 'I was not even in South Africa at the time, I don't know what you're talking about'? What must the Public Protector do? Still comply with Adv Madonsela's wishes?

Mr Samuel: No, that is not what I'm saying.

Adv Mpofu: No. Okay, fair enough. Maybe I'm putting words in your mouth. But you understand the proposition I'm making. I'm saying as you're sitting here, Mr Samuel, you do not even know what the counter evidence that was produced by the recipient of the Section 7(9). You know that the Section 7(9) is meant to either implicate you further, or to exonerate you, correct?

Mr Samuel: That is correct. Yes.

Adv Mpofu: Yes. So, let's work on the assumption then that there was exculpatory evidence in those responses. What was the Public Protector supposed to do? Still include them just because they are politicians?

Mr Samuel: Chair, an omission of information, whether it absolves the person implicated, or it makes a situation worse or doesn't convince the Public Protector that sufficient information exists to be persuaded otherwise; then it would still have to be reflected in the report that we sent the Section 7(9), this was the response, these were the allegations, this was the response, as a result, we find that the Premier is innocent of what he was accused of. That is supposed to be in the final product to show that, at least that response was considered. As to what its value is, it's something else. My understanding from what a previous witness has said is that all information related to the Premier was removed.

Adv Mpofu: Mr Samuel, please, don't worry about the previous witness. You have testified here. You have accused the Public Protector of pursuing personal agendas, political agendas and so on. We've now established that this same person you've been accusing of, was the first person to actually implicate politicians, was the first person to rightfully give them the audi alteram partem rule. Right. So, I'm saying to you, the evidence of the Public Protector will then be that, as it happens with all other witnesses, once the Section 7(9) response is to her satisfaction on a particular point. Then, if she actually includes the person and implicates them, that's when she will be reviewed. Would you agree?

Mr Samuel: Yes, I agree. It's her, yes.

Adv Mpofu: Thank you. All right, now let's move on to what I call your bias and I'll do this by...let's start with your evidence when you say that your intentions of doing the initial affidavit were not connected to the impeachment process. Remember that evidence?

Mr Samuel: Yes, I do.

Adv Mpofu: Do you stand by it?

Mr Samuel: Yes, I do.

Adv Mpofu: And you stand by it, despite the fact that, according to paragraph 11 of your affidavit, you are saying that the impeachment process flowed from your initial affidavit?

Mr Samuel: You said paragraph 11?

Adv Mpofu: 11. Yeah. You'll find that on page 2072.

Mr Samuel: I thought you were referring to the initial affidavit. Yes, where will I find that?

Adv Mpofu: I was not referring to the initial affidavit. In your second affidavit, it's where you link your initial affidavit directly to this process. Where you also falsely refer to the rules that you've never read.

Mr Samuel: Yes, I do.

Adv Mpofu: Do what?

Mr Samuel: I do concede that I make reference to the Committee's rules which I...

Adv Mpofu: Yes. So your evidence that the initial affidavit was not done with this impeachment process in mind is false?

Mr Samuel: No, it is not false. I do concede that I had not read the rules. But, you know, that is not to say that the rules were not communicated to me and the affidavit prepared in terms of those rules, were not in compliance with the rules. I had no reason to doubt that the advice I was getting from the Committee, or from the evidence leaders, would be false, simply because I had not read the rules.

Adv Mpofu: Samuel, you are fudging now. Let's break it down. The impression in this paragraph that you have read the rules is false.

Mr Samuel: There is nowhere in this affidavit where I say I've read the rules.

Adv Mpofu: No, but you imply... when I say 'the impression' is where you say, 'I deemed it necessary, especially in light of this Committee's rules'. Surely, a reading of that will mean you deemed it necessary, in view of the rules, which you must have read. You can't say in light of the Bible if you've never read it. Okay?

Mr Samuel: I do not agree, Chair. You know, the rules could have been brought to my attention in any other form other than me reading them.

Mr Samuel: When a person jumps to the conclusion that I have read the rules simply because of saying, 'especially in light of this Committee's rules', that is that person's conclusion. And it's not, it's not my conclusion, it's not. How that information is received, I really have no control. I have control over what I say. And that's what I said in my affidavit.

Adv Mpofu: When you say...Anyway, what I was saying to you is, the impression, the further impression that you are creating, that you created to this Committee, that the initial affidavit was done without any view to, or any connection or wish to influence this particular process was false.

Mr Samuel: In my initial affidavit? Yes. The process, you know, as far as I can recall, had not started, so I did not have the intention of it being referred to a committee, or at least this committee. Any committee? Yes, I might have. I might have been happy with it, in the sense that I was only asking for an investigation.

Adv Mpofu: [shouting] That's a lie.

Mr Samuel: It is not false.

Adv Mpofu: I understand. No, okay. Let me put it strong and being false. It's a lie. What do you say to that?

Mr Samuel: I deny that.

Adv Mpofu: Okay. You, you said in an interview with the SABC that you wanted your integrity, or that affidavit was intended for this Committee, or this process? Didn't you?

Mr Samuel: To the extent that my affidavit was referred to the Portfolio Committee, that was my belief at the time. I believed that it was the Portfolio Committee that was going to be looking at my complaint.

Adv Mpofu: No, that's another lie. No, you said, it must be referred to the committee that will be dealing with the impeachment process. I might not be using the exact words, which you correctly identified as a separate committee. So you're lying right now.

Mr Samuel: I deny that.

Adv Mpofu: You deny?

Mr Samuel: I deny it.

Adv Mpofu: Yes. Okay. Well, you lied, either to Mr Peter Ndoro, or to the... you're lying to the Committee. I think it's, it's better for you to keep yourself out of jail. It's better if you are lying to Mr Peter Ndoro, because now you're under oath.

Mr K Mileham (DA): Sorry, Chair.

Chairperson: Just a pause, Hon Mileham.

Mr K Mileham (DA): Thank you, Chair. I follow what Adv Mpofu is doing. I just want to know is that interview going to be played? Are we going to hear that interview? It's been referred to, but we have no evidence here before us, except for what Adv Mpofu is saying, so I'd like to hear that interview, please.

Chairperson: Thank you.

Adv Mpofu: Thank you. Yes, thank you Chair. Yes. Yes. Yeah.

Chairperson: That's you're able to share that with us, at some point.

Adv Mpofu: Yeah. If I can just cross-examine the witness. It will be done just now.

Chairperson: Okay, go ahead.

Adv Mpofu: Thank you, Chairperson.

Chairperson: Yes. We'll come back to it.

Adv Mpofu: Yes. We'll come back to it. I'm just... And you also, in the same interview, repeated the insults that you made against Adv Mkhwebane? I'm not, as they say you must let bygones be bygones. I know you've since apologised for that. But I'm saying that those were also contained in the interview, you remember that?

Mr Samuel: In the interviews, I confirmed what I had said in my affidavit.

Adv Mpofu: And you also called upon your colleagues to rise up, okay, that's my word, but to basically join your acts of defiance, correct?

Mr Samuel: I made the statement that my colleagues should not be speaking to me because I have come forward; they must also, on their own, come forward with the information that they were relaying to me. That was that. That was what I was saying. I was not, as you broadly put it, I was not inciting them. You may not use the word 'inciting' but certainly that was the charge against me. I was not inciting them. I was just saying 'the information that you've relayed to me, come forward with it, because you have it, not me'.

Adv Mpofu: Yes. And you also, despite the discussion that you and I have just had, you falsely accused her having interfered in the Vrede report.

Mr Samuel: I denied that I falsely accused her. I stand by what I testified about her involvement in the Vrede Report.

Adv Mpofu: You also falsely made the statement that Adv Madonsela was not, or rather, did not get involved in litigation, where the reviews were successful.

Mr Samuel: That is not what I said. I said where the Office during her time got involved in litigation, it was with circumspection, in the sense that we weighed our chances of success and always had this in mind that we were not necessarily a litigious institution.

Adv Mpofu: You know, that Adv Madonsela lost many cases, which were reviews, which were also mounted against her.

Mr Samuel: I don't know the number. But yes, I'm aware that she lost some cases.

Adv Mpofu: Do you know that unlike what is supposed to happen here, some of those judgments were also what you might call scathing?

Mr Samuel: In relation to... in comparison to the cases that Adv Mkhwebane lost, I do not recall them being scathing towards her. Certainly not, as far as the her knowledge of the application of the law and so on are concerned.

Adv Mpofu: Okay, well, at least one of the judges, I don't... you might not be aware thereof, but in the case, for example, just as an example, of South African Bureau of Standards v Public Protector. This is what Judge Potterill had to say. And that is also loaded, Mr Mileham. "There is no rational connection between the withdrawal of the mark permit and the SABS being to order to assist Prabudass to reopen a business to manufacture. A further R150 000 ordered to re-establish a business is quite astounding. The vague, non-descript and unobtainable remedy ordered of “Provide the Complainant with a remedy, including a reasonable amount as a settlement for consolatory compensation, to address the distress and trauma experienced by him and his family as a result of the manner in which this matter has been concluded” leaves one dumbfounded and needs no further address.". Those types of remarks were the types of remarks that are supposed to be causes for impeachment now. Do you remember that?

Mr Samuel: Yes, I remember that. But as I say, they were not scathing to the extent of her knowledge of the application of the law, they were only scathing in relation to, you know, the rationale behind making those remedial actions.

Adv Mpofu: Is the rationality not the law, in your estimation?

Mr Samuel: It... the law should be... yes, it is. It is supposed to be rational. Yes. But those words were not uttered by the judges. And certainly, the effect that those words had, subsequent to that judgment, did not have the same effect on the Office, as the ones made against Adv Mkhwebane.

Adv Mpofu: Okay, and whose fault is that? If the media decided to... not to highlight those remarks, and decided to further whatever purposes they have, highlight them in relation to Adv Mkhwebane. Who must be impeached, the media or Adv Mkhwebane?

Mr Samuel: I cannot speak on behalf of the media. But certainly, it would be ridiculous to impeach the media. I'm not saying, you know, I do not have control over what their interest is, you know...

Adv Mpofu: So now, yeah, no, I accept that. But you'd agree that it would be equally ridiculous to impeach Adv Mkhwebane simply because, in her case, the scathing remarks were highlighted. But in the case of Adv Madonsela, the scathing remarks were not highlighted; you'd agree that actually is ludicrous?

Mr Samuel: I would, I would distinguish that, you know, by saying the cumulative effect of not only one judgment, but by a number of them against Adv Mkhwebane borne by the fact that she was becoming more litigious in relation to what Adv Madonsela was, exposed her to those kinds of comments being made. That was the effect, the cumulative effect on her attitude towards litigation.

Adv Mpofu: No, fair enough, I accept that. I understand what you're saying. But I'm asking you a simple question. Assume that is so, I'm saying where do you lay the blame? Do you punish the victim of those remarks or do you punish those who make them? In other words, the first time Mr Samuel, if you and I do exactly the same thing, but somebody says, 'no, it's Mr Samuel's fault but Mpofu is an angel', but you and I have done the same thing. Do I blame you, Mr Samuel? Or do I blame the person who's giving a skewed picture?

Mr Samuel: I cannot comment on that one. I was not involved in the highlighting of these judgments.

Adv Mpofu: That's fine. But you would agree therefore that...you and I had already agreed, I think that the Nkandla judgment was a turning point in this litigation journey of the Public Protector, correct?

Mr Samuel: Yes, to the extent that it took place, and did not necessarily mean that was the only time that litigation was taken against the Office. Yes.

Adv Mpofu: No, no, no, no, I understand. I'm just saying but it was...

Mr Samuel: It definitely had an effect. It had an effect. That much I concede.

Adv Mpofu: It had a major effect, in the sense that, for the first time the court had pronounced that remedial action was binding now.

Mr Samuel: That's correct. Yes.

Adv Mpofu: And according to Adv Madonsela herself, that was going to then create a new avalanche of litigation. 'Avalanche' is my word. To create a new, let's call it traffic, or volumes of litigation. That was obviously predictable, correct?

Mr Samuel: I cannot recall Adv Madonsela saying that, but if you want my opinion as to whether that was the effect, I will honestly say, yes, it was one of the factors that catapulted our Office into being taken more on review, because it then meant that whoever was implicated in these reports, could not ignore them any longer.

Adv Mpofu: Okay, can you go to Bundle B.

Mr Samuel: Can you just refer me to a page? I don't have the bundle numbers.

Adv Mpofu: Oh, okay. I'll ask them to put it up. I think Bundle F, page 31, paragraph 2.1. F, item one, I'm told.

Adv Bawa: Can you tell us what you are referring to, Adv Mpofu?

Adv Mpofu: It's the Annual Report of 2015-2016 of Adv Madonsela.

Adv Bawa: Sorry, what was your page reference?

Adv Mpofu: It was Bundle F, item one, page 31, paragraph 2.1. Mr Samuel, did you read annual reports? Was that part of your job?

Mr Samuel: Yes, I did.

Adv Mpofu: I'm going to read out what Adv Madonsela said, this is the Annual Report of 2015-2016. Long before the dreaded Adv Mkhwebane was even in that office. This is what it says, quote "the significant ruling". Are you with me? Can you see that part?

Mr Samuel: It's not on the screen, just...I don't see it on the screen.

Adv Mpofu: Okay, thanks.

Chairperson: It is now.

Ms O Maotwe (EFF): [interjecting] It is on the screen.

Chairperson: It is now.

Adv Mpofu: Can you do a screen share?

Chairperson: Okay, can you see it Mr Samuel?

Mr Samuel: The paragraph just before 2.2? Yes.

Adv Mpofu: Okay. I'll read it out for the record. And then I'll ask you to comment. She says, "the significant ruling by the Constitutional Court", that would be the EFF Nkandla case, "clarifying the extent of the Public Protector's powers poses two significant challenges. The main challenge and risk the institution faces is an increasing number of state institutions, taking the Public Protector's report on judicial review. As a result, the Public Protector is forced to defend these matters, resulting in a massive financial burden to the institution. Another potential risk may be an increased number of complaints, stemming from the judgments, now that there is clarity on the binding effect of the Public Protector's remedial action". If I say it maybe you don't agree, but I'm sure if it's Adv Madonsela, you will agree. Do you go along with that statement as a statement of fact?

Mr Samuel: Yes, I do.

Adv Mpofu: Does that have any implication to you, in your mind, on what you call...what you decry as an 'undue increase in litigation' that actually it was attributable to what Adv Madonsela was saying?

Mr Samuel: Adv Madonsela identified this as a major challenge and a risk, but not necessarily as effect, as at the time this report was prepared. My gripe is – and I've testified to this effect – that the fact that you are being taken on review, does not necessarily mean that you must defend everything that is being reviewed. If you're asserting that you have done your job, that's it. I mean, you don't have to be involved in defending any litigation, unless it is meant to protect and you show that it is in the interest of the organisation.

Adv Mpofu: So, Adv Madonsela was, was talking nonsense. When she says, "as a result, the Public Protector is forced to defend those matters".

Mr Samuel: Those were her words.

Adv Mpofu: Yes, but do you agree with...

Mr Samuel: I can't comment, I can't say this, that she was talking nonsense, no.

Adv Mpofu: Okay. Sorry, maybe...

Mr Samuel: It was certainly not the policy of the Office to defend all of the cases.

Adv Mpofu: Okay. So you disagree with Adv Madonsela.

Mr Samuel: To the extent that you seek to put it that she was forced to defend all and any litigation launched against the Office, I do not agree with you. That would still have to be decided on each particular case, on the merits of each particular case and whether or not it is really going to be in the interest of the Office. One cannot open the floodgates to defend anything.

Adv Mpofu: Okay, Mr Samuel. So, that means, I'm obviously not your hero. Because now you're blaming me for...you're just so scared of blaming Adv Madonsela? It's not me, Mr Samuel, I'm reading what she said, don't kill the messenger. She said, " As a result, the Public Protector is forced to defend these matters". Now you're saying you disagree with me. But...

Mr Samuel: I'm disagreeing with the suggestion that, you know, implied that she meant that we're forced to defend all and every case that was brought against us. What I'm saying is that is done by looking at each case on its own merits, and certainly even during that time we did not defend all reviews that were brought against the Office.
Adv Mpofu: You know, Mr Samuel, I'm not a witness here. But when the Public Protector comes to testify, she will give you a number of matters, where she was advised by me and other people to take matters to court or an appeal, or whatever. And she declined. On several occasions. I know you might not know about that. But I'm saying to you, this notion of yours that she was defending every case, or taking every case is false. Can you at least accept that? Or she'll dispute it.

Mr Samuel: If you put, you know, if she puts evidence that she did dispute some, I won't have any reason to dispute that.

Adv Mpofu: Good. And if that happens, then you will...will you be man enough to alter this accusation that she was taking every matter to court? As I say, even when she was advised, she wouldn't take matters. I'll give you an example. You've read the matter of the Commissioner for SARS. I think it was referred to...you were referred to it. It's one of the subsequent matters, not the one you refer to. But it was a matter about a subpoena to the Commissioner for SARS. You might be aware just generally.

Mr Samuel: Yes, I am generally aware.

Adv Mpofu: Now, in that matter, you will know that on the merits, the courts suggested that issue should be, could be taken by challenging the particular section. In fact, in other words, on the merits, what the court decided was to deny the Public Protector direct access. Do you know what that means?

Mr Samuel: Yes, I do.

Adv Mpofu: What that means is that if you had been denied direct access on appeal, what you should actually do is to go to the SCA first, broadly.

Mr Samuel: Yes.

Adv Mpofu: Yes. Then there was a second appeal that the Public Protector had done against an adverse cost order and disparaging remarks or scathing remarks. She succeeded as far as that part was concerned. Do you remember? I don't expect you to know the case in detail, but do you remember generally? Yes

Mr Samuel: Yes.
Adv Mpofu: And the advice she was given by her legal team was that challenge should be done in the SCA, as suggested at least indirectly by the Constitutional Court, and she declined that. I'm just giving you that as an example. You'd accept that? That is not...those are not the actions of someone who's reckless.

Mr Samuel: If it is proven in this hearing and, you know, it goes against what I said, I would consider the matter, yes.

Adv Mpofu: Yes. And you accept...

Chairperson: Adv Mpofu?

Adv Mpofu: Please, last, Chair, can I please just put this last question?

Chairperson: Okay. No, it's fine. Go ahead.

Adv Mpofu: Yes, thank you, Chair. It's just so that we round it off at a logical place. Yes. I'm saying, Mr Samuel, that what I've just told you, the example that I've just given you, is also consistent with the proposition that I'll put to you after lunch, namely that the Public Protector in most cases, is defending the matters. She's the one who's taken to court, as Adv Madonsela was saying here, "the Public Protector is forced to defend these matters", in other words, to defend her reports. If I demonstrate that to you after lunch, will you also reconsider your theory on so-called reckless litigation?

Mr Samuel: Yes, to the extent that it disproves that. But I think you must also take into account that I spoke about the cumulative effect of these judgments that were given to her.

Adv Mpofu: Okay, thank you. Let's leave it at that for now. Thank you, Chairperson.

Adv Mpofu: Yes. There's something I wanted to round off. Just regarding the... our discussion this morning. Just before we go back to where we were. Do I understand you? I'm just going back to the alleged interference. There was evidence by Mr Kekana that not only did Adv Mkhwebane instruct you to remove politicians – which I think we have now shown to have been false – but that she also gave an instruction that the Gupta Leaks should not be used. Do you confirm that? Or did you ever get to know about that?

Mr Samuel: I got to hear about the Gupta Leaks. And you know, firstly, when an email was sent to the CEO, I think at the time, and later on to the effect that that instruction was then withdrawn.

Adv Mpofu: Withdrawn by who?

Mr Samuel: I'm told...I don't recall, personally, it being communicated to me, but my understanding is that it was withdrawn by the Public Protector.

Adv Mpofu: So, at some stage, she said you must use the Gupta Leaks, because Mr Kekana didn't tell this Committee that?

Mr Samuel: Yes, she did, at least in the email that I can recall amongst those that were retrieved, there was an email to the CEO, and I was copied in that email.

Adv Mpofu: Yes. Well, okay. Unfortunately, Mr Kekana is not here to apologise for his own sins. But I just wanted, in relation to that, were you aware that actually it was not the Public Protector, but Ms Cilliers who said that the Gupta Leaks were not going to be of any assistance?

Mr Samuel: No, I'm not aware.

Adv Mpofu: Okay, can we go to Bundle F? It's the Vrede sub-folder. Item 35, page 2078. Okay, can you please screenshare? Not 2078 of the affidavit, a different one in the folder that they'll show it, they'll put it up.

Chairperson: Is that what you're looking for? On the screen.

Adv Mpofu: Yes, that is it. Yes.

Chairperson: All right. Thank you.

Adv Mpofu: Okay. Thank you, Chairperson. Mr Samuels, those were minutes of the think tank. I think of 14 August 2017. Okay?

Mr Samuel: Yes.

Adv Mpofu: Okay. If you go to item nine, I think, yeah, this is where all the false propaganda against the Public Protector gets generated in the media. And then it's this whole system that is orchestrated. Number nine says the PP suggested that we approach the Premier to engage with the SIU to determine who benefited. Remember that? Anyway, can you see it, now in the minutes?

Mr Samuel: Yes, I see that in the minutes.

Adv Mpofu: All right. And then number 10, says, PP indicated that there's nothing wrong to check Gupta Leaks, as well, for the purposes of this investigation. Do you see that?

Mr Samuel: Yes, I see that.

Adv Mpofu: At 11, it says, Adv Cilliers indicated she did look at the emails in the press and went back to the financial statements to find if there's anything missing, but they did not find anything. CEO enquired about the pictures and so on. Mr Nemasisi indicated that it's very critical to check the Gupta Leaks because you would find complainants taking reports on review. And then number 14, Adv Cilliers indicated that the complainant is interested in administration issues he raised in complaints, not the Gupta Leaks. So, here we have the...am I right to summarise it like this: The Public Protector suggests that we must look into the Gupta Leaks. Adv Cilliers says that she has checked them. Mr Nemasisi supports the Public Protector that the Gupta Leaks must be looked into because they are very critical. Then Adv Cilliers says, no, that should not be done. Is that a fair summary of what happened?

Mr Samuel: Yes, that is.

Adv Mpofu: So, do you? Well, I want to ask you to apologise for Mr Kekana, but maybe we'll catch up with him some other time. But at least you'd agree that from this evidence and the part, the one that you have kindly added, where you say that she gave an instruction to do so. It's clear that the smear campaign about the Public Protector not wanting the Gupta Leaks to be used, is exactly that, a false smear campaign, correct?

Mr Samuel: I do not agree. My evidence is that at one point the instruction was given that you should look at these Gupta Leaks; but then it was again subsequently withdrawn, within some days or weeks thereafter. That is my recollection.

Adv Mpofu: Okay, so you're...

Chairperson: Just...just a pause, Adv Mpofu. Just a pause. Mr Samuel, we can't see you, you're in the dark. We can hear your voice but...

Mr Samuel: Chair, nothing has changed on my side. I'm sitting in the same position. I don't know...I have no idea what is wrong?

Adv Mpofu: No, you are in the dark.

Chairperson: No, we can't see. We can hear your voice, but your camera seems to be still off. Okay, try again, it was coming up.

Adv Mpofu: Yeah.

Chairperson: Now we can see you. Thank you.

Mr Samuel: I had to rewind it. Sorry. Sorry.

Chairperson: Thank you. All right, proceed.

Adv Mpofu: Yes, I can see. Thank you, Chair. But my argument at the end will be that Mr Samuel, you are in the dark anyway.

Chairperson: The Chair was saying it differently, not what you're saying.

Adv Mpofu: Thank you. All right. Now, was saying that, the...I think I'm not misunderstanding your evidence. I thought you were saying earlier that there was an instruction not to use the Gupta Leaks and then it was withdrawn. Now, it seems like you're saying there was an instruction to use them and then that instruction was withdrawn? Which is it…the second scenario?

Mr Samuel: The second, the second part, yes.

Adv Mpofu: I see. But how can that be if in August, in a meeting of August 2017, the Public Protector was saying that the Gupta Leaks must be used. Then, at what point would she have, according to you, withdrawn that instruction? In any event, that is not what Mr Kekana told us.

Mr Samuel: I cannot recall when that was. All I can recall is that... I don't recall being in that think tank; for Adv Cilliers to be there, would have meant that I was away. She's the one who attended the think tank.

Adv Mpofu: Oh, just like the inspection in loco. Okay.

Mr Samuel: Inspection in loco, I attended, Adv Mpofu, and in due course, you will get proof of that.

Adv Mpofu: We will. Okay, no, that's fine. Okay, but okay. On a more serious note, you would agree, at the very least, that the indication from the objective evidence of the minutes, is that it was actually the PP who was suggesting that the Gupta Leaks must be used, correct?

Mr Samuel: Up to that time, yes.

Adv Mpofu: No, that's fine. She will testify for herself. Do you accept that by the time the section 7(9) notices were issued, the MEC for Agriculture was no longer Mr Zwane?

Mr Samuel: Yes, I do.

Adv Mpofu: Who was it?

Mr Samuel: I can't recall precisely, but I suspect, I think, according to my recollection, it must have been Mr Oupa Khoabane.

Adv Mpofu: No, you're quite correct. So, when the...those answers were demanded, Mr Zwane was no longer in the picture, correct?

Mr Samuel: Yes, that's correct.

Adv Mpofu: Okay. Now as far as the...before we go to the video, I just want to round-off what we were busy with before lunch. You accept don't you that some of the cases that both this Public Protector and Adv Mkhwebane, had to fight in court have actually assisted the country in getting us to where we are now. Sorry, sorry, that was vague. I'm talking about as far as the development of the jurisprudence in this area is concerned.

Mr Samuel: Yes, definitely.

Adv Mpofu: And that it is unhelpful to take the approach that you take on the so-called 'reckless litigation', because you cannot judge litigation, the recklessness or otherwise thereof, ex post facto. In other words, by the reaction of people, once the judgment has been given – that by then the horses have bolted. Would you agree at least with that criticism of your approach?

Mr Samuel: I mean I cannot take the decision after the comments have been made.

Adv Mpofu: Yeah, no, no, let me explain it. I'm saying your theory on so-called reckless litigation, which you've repeated here this morning as well, is that because there is noise that happens after the case is lost, that might have an impact on the image of the institution. And I can't debate, I can't, I can't disagree with that. That if there is noise after the judgment, it may or may not have an impact on the PR of the company. Okay? So, let's say we agree on that. But I'm saying would you agree that that approach is unfair because it is based on what happens ex post facto? In other words, the reaction, you do the case, you're not a sangoma, you don't know that the case is going to go this way. And then it goes this way. Maybe you win it on appeal; maybe you lose it on appeal. Thereafter, there is the negative reaction. You can't blame the person who initiated the litigation as if they knew that two years down the line, there will be some choreographed reaction of the media. You understand?

Mr Samuel: I do understand what you're saying. But I have a comment.

Adv Mpofu: Yes, no, I know you do. I'm going to invite you to make it now. But I'm saying to that extent, your theory of so-called reckless litigation is flawed, because it's backward-looking, if you get what I mean.

Mr Samuel: Yes, I get what you mean.

Adv Mpofu: Now you can comment.

Mr Samuel: But I do not agree. You will recall that my evidence is that, in considering whether or not to launch or to defend any particular litigation, one would have to look at the prospects of success, amongst other things, and perhaps go further in our situation, on whether or not this is going to improve the jurisprudence. Let's go with that for now, in the sense that since inception of the Office, there have not been many cases – they've been coming, fine, a few in between, which were directly talking to, you know, our jurisprudence. That is not an issue that can be disregarded before the litigation is launched. [Adv Mpofu: Yes]. And so, it is not entirely true to say that it cannot be determined ex post facto – that is also possible, in the sense that it is exactly the reaction or the failure to take those issues into account – that would be the spin-off of that litigation.

Adv Mpofu: Okay. No, that's why I'm saying. I'm prepared to concede some of this, but you don't seem to want to concede the other side of the coin, which is that it's easy...hindsight, as they say, is an exact science. It's easy to criticise after the fact.

Mr Samuel: Yeah, hindsight, yes, it is easy, particularly because the judgment would then be out and only then we would look at whether that was a wise decision after the judgment. To that extent, I agree with you. But I'm saying it should also have been a consideration especially...

Adv Mpofu: Okay, now, you know that none of the cases…those celebrated cases, like Nkandla, the State of Capture report, those cases at some stage would have looked reckless on the part of the Public Protector to pursue. Would you agree?

Mr Samuel: You made an example of Nkandla and?

Adv Mpofu: Yeah, let's start with Nkandla. If the EFF and the DA had not pushed the envelope, literally, up to the up to the Constitutional Court, we wouldn't even know today that remedial action is binding, which as I say was a major evolutionary step in the jurisprudence in this area. Would you agree at least to that extent?

Mr Samuel: That is possible. Yes. I would agree.

Adv Mpofu: Yes. And I can tell you because I was in the Nkandla case, that when we went there, we thought we were going to be kicked out within half an hour because the court would say it doesn't have jurisdiction. So to that extent, you could have called it reckless. But because we decided to take the chances, now we have a watershed decision that is celebrated internationally.

Mr Samuel: Where, as you say, decided to take the chances and proceed. So, you were there, I was not there. Yes.

Adv Mpofu: Yes. All I'm saying is that that decision was not reckless. It was a calculated risk. Would you agree?

Mr Samuel: I accept what you're saying because you were involved in it. I mean, you must have discussed it.

Adv Mpofu: Okay. Don't worry about that part where I was involved. Let's worry about the aftermath. You would accept that the outcome of that calculated risk has been to the eternal benefit of the country and the Office itself? The Public Protector?

Mr Samuel: Yes, I do.

Adv Mpofu: I don't know if Hon Holomisa is here. I don't know how much you know about this, but without, if Hon Holomisa and Hon Malema had not intervened on 13 October 2016, three days before the expiry of the term of Adv Madonsela, and went and went and well not went, forced us to go and fight the State of Capture report, when Adv Madonsela had already given up, we would not have had the Zondo Commission now. And that report would not have been released when it was. Again, I'm demonstrating to you, I don't know how much you know of the history, that taking litigation at that particular time might look reckless to you, or to the naked eye, but the dividends that get paid later are incalculable. Would you accept that?

Mr Samuel: I would accept your last statement; but as to whether that was the case at the time with reference to Adv Madonsela, I cannot, because I was not part of those discussions.

Adv Mpofu: Okay, fine. Okay, that's fine. You can just confirm the part that you know, you know that her term was ending Monday 15 or 16 October 2016?

Mr Samuel: I cannot recall the exact date. But yes, it was thereabout.

Adv Mpofu: Yeah. You know that the report was...the interdict to release that report was launched two days before, literally two days before, the expiry of her term?

Mr Samuel: I recall that there was a tight timeline. Yes.

Adv Mpofu: Well, I'll call Hon Holomisa or Hon Malema to tell you the story, or they'll tell you one day. You will be shocked as to what could have happened if they had not intervened. But that's fine. Let's go quickly to the judgment. Can somebody put up the judgment of South African Bureau of Standards v Public Protector? While they're doing that, just to save time, Mr Samuel, is it still your view that the Portfolio Committee in Parliament was protecting Adv Mkhwebane?

Mr Samuel: No, it's not still my view, but at the time, that was my view.

Adv Mpofu: Okay, well, okay. I was going to...Okay, fine, that's close, but...is it your view that Dr Mathole Motshekga was part of the gang that was protecting Adv Mkhwebane?

Mr Samuel: Well, to the extent that I was there at the time that she made an appearance to that committee, the very first one and subsequent to that, yes, I believe that he was.

Adv Mpofu: And is it your position that you lost faith in the Portfolio Committee? And just...

Mr Samuel: Yes, yes, at some stage I did.

Adv Mpofu: And you regained the faith, or you are just doing it conveniently because you're in front of them now?

Mr Samuel: No, my faith was brought back by the fact that action was being taken on our complaint.

Adv Mpofu: Is it still your view that Members of Parliament were sucking up to, to use your word, sucking up, to Adv Mkhwebane?

Mr Samuel: Certainly, at the first engagement, where I was present along with my other colleagues from other provinces. That is my view.

Adv Mpofu: Okay. Is that still your view?

Mr Samuel: No, it is not.

Adv Mpofu: Oh again, there was a Damascus moment.

Mr Samuel: So to say, yes.

Adv Mpofu: Okay.

Chairperson: We've got the South African Bureau of Standards [SABS] flighted for you.

Adv Mpofu: Okay, no, I was still checking on whether you MPs were sucking up to Adv Mkhwebane. We're still busy with that. All right, Mr Samuel. So, before we do that, I think maybe you should tell the MPs that you no longer think that they were sucking up.

Chairperson: That's irrelevant.

Adv Mpofu: No, it's not irrelevant. How do you know it's irrelevant, Chairperson?

Chairperson: He's covered that point and answered you.

Adv Mpofu: No, Chairperson, please, you must not do that. You must not do that. You can't...No, you must not do that.

Chairperson: Because I don't know where you want to go with this, actually.

Adv Mpofu: Yeah, well, that's exactly the problem. You don't know where I want to go. So let me go there, then you can tell me to come back.

Chairperson: I'm here on issues of relevance. Because you dealt with that issue with him. He concluded. And both of you agreed.

Adv Mpofu: Mr Dyantyi, let me just finish my question. Okay. Mr Samuel?

Mr Samuel: Yes. Yes, Adv Mpofu?

Adv Mpofu: Can you explain why you have the view that the MPs were sucking up to Adv Mkhwebane? So that we just sit on this. I thought we were passing. But now I've been encouraged to sit on it. Can you? [Chairperson: Hon Mpofu] Why did you think that they were sucking up?

Chairperson: [sternly] Adv Mpofu.

Adv Mpofu: Yes.

Chairperson: Adv Mpofu. I do not appreciate what you're trying to do. You're even now making a statement that, that you had passed on this. And now because I've raised this issue you want to come back to it. I don't appreciate that. We're here on a very serious business. And I'm beginning to think that the manner in which you're raising these issues, you seem to be somewhere and not necessarily in this inquiry.

Adv Mpofu: Let's not go there again. Mr Samuel? Why did you think the MPs were sucking up to Adv Mkhwebane?

Mr Samuel: Chairperson, it was their conduct during that briefing meeting that led me to that belief.

Adv Mpofu: But do you think it's appropriate to use that kind of language against Honourable Members?

Mr Samuel: It is innocent language as far as I'm concerned. I don't think there's anything wrong.

Adv Mpofu: With saying Members of Parliament are sucking up?

Mr Samuel: I don't think there's anything wrong with it. I don't recall saying it in so many ways. But I wouldn't dispute it either that I could have used that, that that language and meant it at the time.

Adv Mpofu: I see you. You stand by that?

Mr Samuel: Yes, I stand by that.

Adv Mpofu: All right. Thank you. Thank you, Chairperson; at least now we clarify that. I thought you are withdrawing. If you stand by it, thank you, at least that exchange has been quite useful. All right. Now. Can we go back please, Hon operator, go back to the case? Thank you. Yes. I wanted just to show you some of the scathing remarks that were made against our favourite Public Protector. Paragraph nine. Oh, Mr Samuel, yeah, so this is a case of SABS v Public Protector, which was in 2015. That would be during the era of Adv Madonsela.

Mr Samuel: Yes, I take note of that, Chair.

Adv Mpofu: And then I just wanted to...I'll take you through some passages. And then I'll ask you the question later. Paragraph nine. Yes. You see the quote from the [PP 2015 SABS] report?

Mr Samuel: Yes, I do.

Adv Mpofu: They talk about the Public Protector had dismissed the complaint of the SABS after 11 years. The file and documents pertaining to this matter were destroyed and therefore she could not consider the complaint. Are we together?

Mr Samuel: Yes, I'm up to speed.

Adv Mpofu: Okay. Then it says, in fact, she took umbrage with SABS for this loss of records. The judge says this is astonishing, this is an astonishing stance. If SABS knew there was a complaint 11 years earlier, they could have safeguarded the documents, but the Public Protector simply did not inform SABS of the complaint. She ignored the fact that the relevant person who withdrew the permit, was available for an interview, in lieu of the destroyed documents. In other words, the Public Protector has been accused of having ignored a person – like Mr van Loggerenberg came to tell us here – a person who was available and she just went on to make a finding. You agree with that? Because that's what you are being accused of, I'm not saying that's what happened.

Mr Samuel: I follow the analogy. Yes.

Adv Mpofu: Yes. And then it says, what makes matters worse, is the Public Protector herself submitted her Office unfortunately misplaced the original complaint and correspondence submitted by Prabaduss. The pot calling the kettle black. In other words, the Public Protector was the pot calling the kettle black, because they misplaced documents and she had also misplaced documents. That's the second scathing remark, you would agree?

Mr Samuel: Yes, I would agree.

Adv Mpofu: But then it says the Public Protector balanced the mismanagement of the documents of SABS with a prejudice to Prabaduss...Okay, that's fine. Then the next one is paragraph 11. She did exercise her discretion fairly in investigating the complaints. The investigation process was unfair, irrational, and should be set aside. Okay. Now, the important one, you know that you should know that in the Mail & Guardian case, it was said – and we were told here by Mr Hassan Ebrahim – that the most important issue for a Public Protector, the most cardinal, is that she must approach the matter with an open mind, correct?

Mr Samuel: That is correct.

Adv Mpofu: Without that, that's one of the reasons why we're here. We're told that this Public Protector approached matters without an inquiring mind, correct?

Mr Samuel: That's correct. Yes.

Adv Mpofu: Now go to paragraph 14. This is what was said about Adv Madonsela. Despite not being able to decide the first complaint, the Public Protector persisted in attaining the second complaint, you see that part?

Mr Samuel: I see that.

Adv Mpofu: Then it says: "Upon a reading of the papers this acceptance of Prabudass’ view was not done with an enquiring mind as required of the Public Protector." You see that?

Mr Samuel: I see that. Yes.

Adv Mpofu: Yeah. And you'd agree with me that that is the most cardinal accusation that can be made against any Public Protector.

Mr Samuel: Yes, I agree.

Adv Mpofu: Okay, and it is...okay. Anyway, let's go to paragraph 15: "Upon a reading of the papers I cannot find that the Public Protector investigated this matter with an enquiring open mind, in fact, my distinct impression is that the Public Protector upfront decided that they must protect the man on the street from this organisation, worked on assumptions and did not attempt to find the truth". That again, avoiding to find the truth is also one of the worst accusations that can be made against any Public Protector, you would agree?

Mr Samuel: Yes, I would agree.

Adv Mpofu: Okay. And then this is another van Loggerenberg special. It says, listening only to Prabaduss with nine interviews led to only discovering the truth, as told by Prabaduss and simply because no evidence, not a single interview with officials of SABS was obtained to prove the contrary. Again, a suggestion that this was a skewed and one-sided investigation. Agreed?

Mr Samuel: I agree.

Adv Mpofu: And then even though you said she was not criticised about law, at paragraph 18, it says: "Prabudass was not issued a permit by the SABS to manufacture and distribute motor vehicle number plates. The starting point of the investigation was thus wrong, bad in law and irrational". Do you acknowledge that fact?

Mr Samuel: Yes, I do.

Adv Mpofu: Okay, then let's go to paragraph 19, quickly. No, I already read that one to you. It's the one about it's astounding, and the judge was dumbfounded and so on. Now, that you would agree there's another case of…we just don't have time…National Empowerment Fund v Public Protector. It's in the High Court of South Africa in Pretoria, case number 12349. There are many of these cases. Yes, paragraph 19, please.

Adv Mpofu: Okay, while we are waiting for that, Mr Samuel, you would agree if we had the equivalent of Ms Mazzone, these judgments could also have been used equally with same force as grounds for impeachment? On the logic of the current motion? Correct?

Mr Samuel: [calmly] I would not agree. Ms Mazzone is present, you know, and available to come and speak for herself. Just as Adv Madonsela can also be confronted, you know, about the comments made against her. I'm not at liberty...I cannot comment on those I take note of what you're saying about her, but I cannot comment in any way.

Adv Mpofu: Okay. Okay. Okay. Take it easy. Take it easy. No, I'm saying let's forget about Ms Mazzone. I'm saying that anybody, Ms X or Mr X, could equally use these scathing remarks that I'm referring to you, as a basis for...Okay, let me put it this way. These remarks that I'm referring to you could have easily sit well with the remarks that I used in the current motion against Adv Mkhwebane.

Mr Samuel: Yes, I agree, the cumulative effects.

Adv Mpofu: Thank you. Thank you very much. Okay, paragraph 19. It says, okay, again, there were facts. I don't want to bore you with the facts. But I'm asking for the same reason. They say: the finding of maladministration or improper conduct is premised upon material errors of fundamentally flawed reasoning that is on the part of the Public Protector. The first respondents' findings and the reasoning therefore, in respect of the issue of alleged undue delay, is that's irrational, it follows that the report of the first respondents tends to be reviewed in respect of rationality and legality". Next paragraph: "The subsequent findings of the first respondent", that's the Public Protector, "were indeed flawed for what follows". Same comment, you agree that this, this could have been mistaken for the current motion?

Mr Samuel: Yes, it could have been relevant.

Adv Mpofu: Yeah. Thank you. No, that's fine. There are many other examples. And I don't want to waste your time. But before, Chairperson, could we please go to the video? And Chair, can I just put in something? Some comment?

Chairperson: Go ahead.

Adv Mpofu: Yes. I wanted to say to both Mr Samuel, and the Chair and the Hon Members, the, there are various things that come out of this, but the one that I'm particularly going to be interested in is the issue where I've accused Mr Samuel of perjury, in respect of it coming out clearly in this interview that he actually did his initial affidavit, specifically with the view of influencing this process, and this committee, even though, of course, it didn't exist at the time. But that's just one of the issues. Please note that, Mr Samuel, because my questions will be around that. I might ask you about one or two other things, but that will be the focus.

Mr Samuel: I take note of it, Chair.

Adv Mpofu: Thank you.

Adv Mpofu played Mr Samuel’s interview on SABC News with Mr Peter Ndoro from 17 February 2020 on his allegations against the Public Protector.
[video: https://www.youtube.com/watch?v=uboVa9F_OHM]

Chairperson: Thank you, IT. Back to you Adv Mpofu.

Adv Mpofu: So, Mr Samuel, this exposes you as the liar and a perjurer that I said you were. Do [you] accept that now?

Mr Samuel: No, I did not.

Adv Mpofu: Okay. Contrary to what you've been telling us since last week that your initial affidavit was not directed at this process. You said that under oath, correct?

Mr Samuel: That is correct.

Adv Mpofu: And you stick by it now under oath?

Mr Samuel: Yes, I do.

Adv Mpofu: So, what then were you referring to when you said, 'so given the fact that the Speaker agreed to entertain the complaint lodged by one of the political parties, namely the DA, in Parliament'? Were you referring to something else or to the process in that the impeachment of the Public Protector?

Mr Samuel: Chair, I've testified that when I did that affidavit to the Speaker, it was to initiate an investigation. When I got the acknowledgement from the Speaker's office, it said the matter has been referred to the Portfolio Committee. And that is the committee I thought was going to determine – given the fact that we're reporting to that committee – that was the committee that I thought was going to, you know, was being referred to by the Speaker and the media, you know, that was covering the issue at the time. I did not, up until it came out that a separate committee was actually going to determine that which would be preceded by a panel. I had no reason to believe that there would be any other committee except that one that I knew we're reporting to.

Adv Mpofu: Is that your final answer?

Mr Samuel: That's my final answer. Chair.

Adv Mpofu: Mr Samuel, you...As I said, I'm going to argue that not only are you a disgruntled employee who is full of vengefulness, but you're just an unrepentant liar. And what did you...when you said at a later stage…Chairperson, we prepared for the Committee a transcript of this interview. Maybe it can be put up if it's there. If you could go to page 4? [to IT] Yeah, go further down. Okay, you say, 'I came forward'. Okay. Let's start from...[to IT] Just go a little bit down, Mr Samuel to...no, higher than that. Go back. Yeah. Mr Samuel, can you see where you say 'we lost faith in that process'?

Mr Samuel: Yes.

Adv Mpofu: Yeah. Just after the sucking up part. It says, 'the reason why I came forward now was because there is a definite, you know, process, and you know, that what is going to be done by a different committee'. So, there you say clearly, the reason that I've come up now is because there's a different process. Was that process, not the process that we are in now?

Mr Samuel: My understanding was that it was going to be done by a different committee, which was not the original...

Adv Mpofu: No, no, no, sorry. Sorry. Sorry. I cut you. No, finish, Mr Samuel, and I'll ask you the next question later. I apologise.

Mr Samuel: I've testified that my belief was that the Portfolio Committee was going to be the one determining that. And to the extent that it was going to be, you know, a different committee from the one that I accused of protecting her, that's what I meant.

Adv Mpofu: Yes, that's correct. In other words, this committee, which is the committee to determine the veracity of the motion, but would be different from the Portfolio Committee, correct?

Mr Samuel: That's correct. Yes.

Adv Mpofu: Yes. And then further down, you say, 'what is going to be done by a different committee other than the panel, that's going to determine the fitness to hold office and I believe that in that process, and I believe in the bona fides of, you know, of the Speaker, which is why we approached her now'. The referral to the panel would have been to the independent panel, correct?

Mr Samuel: Yes, I think so. Yeah. That's my recollection, yes.

Adv Mpofu: Yes. Then it says, 'the timing and everything has got nothing to it, only because of the different process now'. In other words, you were not doing it because you are being charged. But you are doing it because of this process of the intended removal of the Public Protector, correct?

Mr Samuel: Chairperson, I, at that time, and unlike now that I know the different processes that led to this, to where we are. My understanding of what was going to happen was not informed by my knowledge, because I didn't have any [knowledge] of the processes of Parliament. All I knew was that we were reporting to the Portfolio Committee. And that is the portfolio committee that will then hear whatever complaints there are against the Public Protector and eventually take action thereon. So, my reference to that panel, and the fact that I had bona fides in the Speaker, was based on that understanding.

Adv Mpofu: No, Mr Samuel, don't dodge the question. You are not a little child. So, I'm saying to you, irrespective of what you are saying now, what comes out clearly from this, is that the purpose or the reason why you came forward now was because of this process, which was the process initiated by Ms Mazzone, correct?

Mr Samuel: Yes, that, you know, but I did not know that it was a process where, which is this one, this committee. My understanding was that it was the Portfolio Committee. Yes.

Adv Mpofu: No.

Mr Samuel: As confirmed, as confirmed by the letter that…the acknowledgement letter from the Speaker's office.

Adv Mpofu: No, Mr Samuel, now you are lying through your teeth. Your understanding was that is not...

Chairperson: Just a pause, just a pause, sorry to disturb you. Okay, just to bring this to your attention, and I think everybody. So, at the beginning, I would have promised and indicated that you would start and finish at three. It's just two minutes past three now. But also, subsequent to that, we started two minutes after 10. And the entire 38 minutes would have been lost to you, given what happened at the beginning of the meeting. And so, I'm coming in to, as you said, you will remind me to remind you that I'm going to be giving back the time that belongs to you. Which means from now on, you also have got an extra 36 minutes, additional to what I would have indicated to be three o'clock. Just wanted to indicate that. Please go ahead.

Adv Mpofu: And the video, let's not forget the video, but let's make a deal, Chairperson, can I finish at four?

Chairperson: Let's see how we go. Okay, let's see how we go.

Adv Mpofu: Thank you, Chairperson, I appreciate it. Thanks for reminding me, I totally forgot, lost track of the time. All right. Mr Samuel, I was still saying that you are now actually contradicting yourself, I hope you had time to, to try and find a way out of this one while the Chairperson and I were talking. So, I'm going to give you ample opportunity, as they say, a long rope. Yeah. You said that you...actually your understanding was that it was not going to be the Portfolio Committee. Now you're saying your understanding was that it's going to be the Portfolio Committee, which is the truth?

Mr Samuel: Chair, I, I said, and I think I said this even last week, I said if the allegation against me is that I'm lying under oath. I said I'm prepared to defend myself against that allegation. And to that extent, I really have no problem with anyone, including Adv Mpofu, laying those charges against me so that I can then defend myself of those. But in this forum, I've also testified that my belief at the time, and that is, this is what I was assured of when I was ready to answer questions, to answer them to the best of my ability. And my best abilities that, my recollection is that at the time, I lodged the complaint, I mean, the affidavit. I was not familiar with the process that would unfold. I only limited my knowledge to the fact that we are reporting to the Portfolio Committee, and as to other processes that we're going to follow, I have no knowledge of parliamentary processes, so that they were not in my mind at the time.

Adv Mpofu: Okay, Mr Samuel. Firstly, no, it's not me who's going to lay charges against you. You've done nothing against me. It's, it's the Public Protector and the people in Parliament if they are so inclined. You remember when you started, there was Ms Ebrahim who read your rights to you and told you that you must swear to God, if you don't tell the truth, you might be guilty of perjury?

Mr Samuel: I recall very well. And I take that very seriously, which is why I stood up to take the oath.

Adv Mpofu: Yes, especially as an officer of the court, as you describe yourself,

Mr Samuel: Correct, yes.

Adv Mpofu: Yes. Now, I'm saying and I'm, I'm trying to be fair to you. Because, you know, as a lawyer, this might have far more serious implications than your criminal conviction of assault. I'm giving you an opportunity to come clean with us, Mr Samuel. You've just given the summary of what you've just told me now is that you knew that your complaint would go to the Portfolio Committee, and you are not aware of any other processes of Parliament, correct?

Mr Samuel: I have testified...I've answered that question, Chair. I've said exactly that. That I was not familiar with parliamentary processes, formally. Committee, I knew was the Portfolio Committee.

Adv Mpofu: Okay. So that's the only committee, now it's very clear. So, then when you are saying that there is now a different process that is going to be done by a different committee. That means different from the Portfolio Committee, correct?

Mr Samuel: My recollection is that, as I've said, earlier, my recollection was that a different committee from the one that was in existence, when we first went to the Portfolio Committee briefing with Adv Mkhwebane in 2016, a week after she took office. It was composed of different members. And that was that that that to me was what I referred to.

Adv Mpofu: Oh, I see. So, you're trying...you were talking about a different Portfolio Committee.

Mr Samuel: The name might have remained the same or perhaps even changed slightly, but yes, that's what I referred to.

Adv Mpofu: My mistake. So, you were not referring to the one about the fitness for her office?

Mr Samuel: No, no, not at all.

Adv Mpofu: Okay. I apologise. So, then what did you mean later, when you say, you know that is going to be done by a different committee, other than the panel, that's going to determine the fitness to hold office and I believe that in that process, I believe in the bona fides, as you know, of the Speaker, and that is why I approached her now? And the timing has got nothing to do with it only because of a different process now. Which process were you talking about?

Mr Samuel: My understanding, Chair, of the processes at the time was that the Portfolio Committee was going to be the committee sitting to determine whether there was a case against the Public Protector.

Adv Mpofu: Sorry, sorry, finish your answer.

Mr Samuel: Yes, and, and from what I was hearing at the time, it was my understanding that then from there, that process would be referred to the National Assembly for a vote. I, at that stage, did not have any knowledge that this Section 194 Committee was going to be set up. I believed that it was the Portfolio Committee that would have met as this committee.

Adv Mpofu: So, which process was going to be referred to the National Assembly for a vote?

Mr Samuel: The process of voting, you know, as to whether or not to remove her.

Adv Mpofu: Ah. So that's the process for her proposed removal, correct?

Mr Samuel: Yes, it is.

Adv Mpofu: And that is the process that you are referring to, at page one, when you are saying the fact that the Speaker agreed to entertain a complaint lodged by one of the political parties, namely the DA in Parliament. That is the same process, correct?

Mr Samuel: Yes, that was my understanding, as in line with what I've answered about the Portfolio Committee.

Adv Mpofu: Yes. So, when you say you were thinking of a portfolio, renamed Portfolio Committee, you are lying again, correct?

Mr Samuel: No, I'm not, Chair.

Adv Mpofu: Mr Samuel, please. Which one is the truth? Were you (a) referring to a process unrelated to the removal of Adv Mkhwebane or (b) referring to a process related to her removal, initiated by the DA? Which one is the truth?

Mr Samuel: My understanding is that the process initiated by the DA was the same process that was...I'm talking about at the time, was the same process that I, you know, that would follow after looking at the complaints against the Public Protector. That would be the ultimate end result of what they would have followed from the investigation of the complaint.

Adv Mpofu: Mr Samuel, I think you must save yourself because when you're facing a criminal trial for perjury, they might play this video. So, I think I'll stop here so that you're not sentenced to a longer period in jail. Do you agree we should do that?

Mr Samuel: To the extent that I have answered your questions around this issue? Yes, I agree. But any, you know, I can't say anything more than what I have said. And so, if, if perhaps the indication or the suggestion from Adv Mpofu for the Public Protector is that this information or this evidence that I'm giving you is going to be used against me in the criminal court when I'm challenged, I'm ready for that. I don't have any issue with it being used today.

Adv Mpofu: Okay, now, that's fine. Well, I can't speak for Parliament, then. We never know what Parliament may or may not be up to. But we certainly will take the necessary steps to ensure that insofar as you're committing this perjury against the Public Protector. We forgave you earlier for the insults, but we're not going to forgive you for the perjury. Anyway, the perjury would not be...it's against the people of South Africa, it's not against her, so she she's not in a position to forgive you for that. It will be taken by the appropriate authorities. All I want to say is that you are a completely unrepentant liar. And even when you're caught out...

Chairperson: Just pause.

Ms B Van Minnen (DA): I mean, at this particular point, this is really just amounting to intimidation and threats. Can we please stick to the directives when it comes to issues like this? Because this is now going too far, threatening people with reporting them to the authorities to be imprisoned really is going a step too far. I'm sorry, but I really want to submit that. I really would urge everyone to look at the directives. Thank you, Chair.

Chairperson: Thank you, Hon van Minnen. Hon Sukers.

Ms M Sukers (ACDP): Yeah, I want to, I must say it's concerning because what it does do, it impacts future witnesses that are coming here and coming to tell their story. And so, I absolutely agree with what the Honourable Member has said.

Chairperson: Thank you, Hon Sukers. Thank you, Hon Members. Before I go to Mr Mpofu, Adv Mpofu, I think, as we indicated, I'm well, playing a role in checking the directives. But I think on this issue, I'm following it properly. I'm also guided by the witness in the manner the exchanges are done. So, please trust that, because the only issue that has been raised in a strong way, is the issue of the lying and a liar. And the witness seems to be interacting with that. So, I would want to exercise that approach. But I'm noting your concerns. Thank you. Proceed, Adv Mpofu.

Adv Mpofu: Thank you, Chair. Anyway, the Members who are uncomfortable, will be pleased that I'm going to move on to something else. But it is like this, usually like this one, the shoe pinches. What I wanted to say, Chair is that if we...then we must stop having Ms Ebrahim at the beginning warning people that they will be charged with perjury if they lie, because then she's threatening them, according to this logic. But obviously, everyone knows that it's not a threat to do that. It's simply to point out to someone. That's why every witness, including Adv Mkhwebane, was told that if she doesn't give evidence truthfully, she'll be charged with perjury. We didn't jump up and down and say she was being threatened. But anyway, let's move on to something else.

Mr Samuel: Chair, can I please be given just a minute to respond, just to say, from my side, how I feel about this?

Chairperson: Before Mr Samuel, before you respond, Hon Herron.

Mr B Herron (GOOD): Sorry, Chair, it's just a housekeeping issue. I just wonder if we could have the date of that interview.

Chairperson: The date of the interview? The video we played?

Mr B Herron (GOOD): Yes.

Chairperson: Okay. You would help us with that, Mr Samuel or Adv Mpofu, so that we know the actual date and the year. I mean, because I also wanted to check that. Just hold back, Adv Mpofu. Let me just hear Mr Samuel.

Mr Samuel: Yes, Chair. Thank you. Thank you, Chair; what I wanted to say is that it's purely because it affects me. And I'm, I'm glad that some of the Members, you know, came in, I would have thought that perhaps the evidence leaders would, would come in there. I certainly want to place on record that I felt, you know, that I was being threatened. And, and that, you know, it is, it is being ignored that I'm giving the answers to the best of my recollection. And yes, I stand by all the answers that I've given here. If it is going to mean, which is why I said if it is going to mean that charges laid against me, I will stand for that charge. I just wanted to acknowledge that. Thank you, Chair, I thank you for your protection and the other Members. Thank you.

Adv Mpofu: Thank you. Thank you, Mr Samuel. Thank you, Mr Samuel. Yeah, well, let me tell you from the side of the Public Protector and the issue of perjury it's not a threat, it's a promise. But let's move to the cases that you refer to in your statement. One of those cases, because of time, Mr Samuel, I will just pick on one or two of the cases. One of the cases that you refer to, Chair if you can just give me one minute. One second. I just want to find my underlined version. I have one that is not underlined. Okay, I've got it. Mr Samuel, one of the cases that you deal with in the, in your, as your examples is the case of CIEX. Remember that?

Mr Samuel: Yes, I do.

Adv Mpofu: And you tell us there that the case went all the way. This is now we are under your topic of reckless litigation. Okay?

Mr Samuel: Yes.

Adv Mpofu: This is the bedrock of your testimony here, is this whole thing of so-called reckless litigation? Correct?

Mr Samuel: That's correct.

Adv Mpofu: Yeah. And I want to show you that that theory is fundamentally flawed and riddled with lies. Because well, so according to you, when did the High Court decide the CIEX matter?

Mr Samuel: I cannot recall. I did not have in-depth knowledge, I think I've testified to this fact last week, that I do not profess to know the cases thoroughly, and these were brought to my...the...I was only making reference to the comments made in these, in these cases, based on my reference to them in my initial affidavit. This was just an expansion of what I was referring to there.

Adv Mpofu: No, I know that. There was no reference to these cases in your initial affidavit.

Mr Samuel: Yes.

Adv Mpofu: Yeah. I'm, I'm telling you now, we've already established that most of this information was given to you by the evidence leaders. Correct?

Mr Samuel: At my request, yes.

Adv Mpofu: Yes, at your request, but that you...that request is not indicated in your affidavit. So, we have been forgiven for thinking these are your statements, correct?

Mr Samuel: Incorrect, Chair. I have referred to that fact, in the affidavit, to the fact that some of the information, includes email correspondence and attached documentation provided by the committee's evidence leaders, which information they obtained from my email records downloaded from the PP's computer server. That covers also, you know, all the other issues.

Adv Mpofu: Mr Samuel, please, man, please. Are you saying these cases came from your emails?

Mr Samuel: No, not necessarily the emails. I'm just saying that...

Adv Mpofu: That's what you've just said.

Mr Samuel: I acknowledged that some of the information was provided by the evidence leaders at my request, not necessarily from the emails.

Adv Mpofu: But you've just read something that says they retrieved that information from emails; please let's not waste time, sir.

Mr Samuel: I cannot answer the question, but...

Adv Mpofu: I know you cannot answer the question. But that's because you are making it up as you go. So, please, just be careful, take your time. This has serious implications for you. Don't make it worse by compounding it with more lies. Okay. You say because the manner in which the PP conducted the litigation, the OPP was subjected to substantial costs audits; what was that manner that she conducted the litigation which resulted in the cost audit? Did that also come from the evidence leaders?

Mr Samuel: I have said, you know, it is due to the reckless litigation that she undertook.

Adv Mpofu: Yes, but I'm talking about the CIEX matter in particular; what was the recklessness there? [to IT] No, don't, no, don't put up the thing. I don't want it to assist him. This is his own affidavit. Anyway, even if you put it up it's not going to save him at this stage. Okay, that's fine. Put it back. Yeah. Which, which are you talking about in relation to the CIEX matter, Mr Samuel?

Mr Samuel: If I can just remind myself from my affidavit. My affidavit is my evidence, Adv Mpofu. And Chair, I really...

Chairperson: Hello, which part? Pause, Adv Mpofu. Which part do you want to refresh, Mr Samuel, so that they can flight that?

Mr Samuel: Okay, I'm sitting with my affidavit here, Chair, and I wanted to go to it because he's referring me to the initial affidavit. And I see...

Adv Mpofu: No, no, no, sorry, Mr Samuel, to interrupt you. No, sorry, I'm referring you to the subsequent one. The 75-page number.

Chairperson: Are you able to get that?

Mr Samuel: Yes. Yes. I have found that.

Chairperson: Just help us all; where is it?

Mr Samuel: Page 2078, Chair

Chairperson: Okay. I'm told it is the one we are flighting. Okay, we're in your hands.

Mr Samuel: Yes. I have stated that the cases that I was referring to, were, you know, were following from that. They follow from point 2.6.1 onwards.

Adv Mpofu: But you're reading, I don't want you to read your affidavit. We've read it before, I'm just testing the fact whether the evidence therein comes from you or from the evidence leader. Reading it is not going to assist us in that exercise. The point I'm making, and let me make it less painlessly, is that you have no clue about the ins and outs of the CIEX matter. You just signed because of what you found in that document, correct?

Mr Samuel: That is incorrect.

Adv Mpofu: Okay, you have a clue about the CIEX matter, then. Do you know that one of the findings in that matter had to do with the fact that the Public Protector had allegedly concealed a meeting with the State Security Agency (SSA)?

Mr Samuel: Yes, I do.

Adv Mpofu: And do you know that is wrong? She never concealed that meeting. It's actually in the report.

Mr Samuel: What my recollection is that that is what was debated in the court. Yes.

Adv Mpofu: Yes, I know. That's what was found by the report. But I'm telling you that that evidence is in the report. It's also in the draft report and also in the…I'll get you the CIEX report now. The other part was that some of the scathing remarks were because she had referred to the vulnerability of the Reserve Bank, you remember that part?

Mr Samuel: I don't quite remember that.

Adv Mpofu: You don't remember that? Okay. Well, Mr Kekana...you watched Mr Kekana's evidence in this court, in this committee, correct? Some of it.

Mr Samuel: I saw, I saw snippets of it.

Adv Mpofu: Yeah. Did you miss the snippet where Mr Kekana said that he was actually the person who wrote about vulnerability, and not the Public Protector? And therefore, to that extent, the court judgment was wrong.

Mr Samuel: I must have missed that part because I was not sitting full-time listening to those. I was at work.

Adv Mpofu: Okay. At paragraph 28 you refer to other subsequent judgments – does that include the rogue unit judgment as well? It says 'there have since been other judgments in which the courts have made similar findings, both about the manner in which the PP has conducted the investigation, produced the reports and so on. Which reports were you referring to there? Or was that from the evidence leaders?

Mr Samuel: I, I think I gave this information, but at the time, I could not recall which ones they were. And as I said, in my evidence, the draft affidavit was in fact sent to me to comment on and to the extent that this part is there, yes, it is. It is what I...it is my evidence.

Adv Mpofu: Sorry. Yes, no. What are you saying? I don't understand what.. did you say, or did you not say?

Mr Samuel: I'm saying I stand by that, but at the time, it was not at issue to quote all the cases so my affidavit does not purport to be comprehensive.

Adv Mpofu: Okay, the 75-page affidavit is not comprehensive; it's a summary?

Mr Samuel: I said my summary of the cases referred to is not meant to be exhaustive and/or comprehensive.

Adv Mpofu: Okay, no, that's fine. Mr Samuel. Let's assume you don't remember all the judgments. We say there have since been other judgments. They don't have to be all of them. Some of them. Which ones were referring to? Just give me three?

Mr Samuel: Chair, I cannot remember those cases. But yes, I yeah, I can't, I can't recall even one. But what remains is that the comments made in those cases, and the fact that they exist, cannot be refuted.

Adv Mpofu: No, it cannot be refuted. Mr Samuel, I know that myself, I was involved in some of them. But if you put an affidavit and you swear that it is your own information, you are not saying it cannot be refuted; you are saying, I, Sphelo Samuel do hereby make oath and say that then you put all those things. That's what's called an affidavit. You know what that means. So, if I, Mr Sphelo Samuel, says there have since been other judgments in which the courts have made similar findings, surely, you must be able to tell us at least one, Mr Samuel. Really.

Mr Samuel: I also say, Chair, in the same affidavit in paragraph 2 the facts of this affidavit that will feed my personal knowledge, except where the context indicates otherwise to the best of my belief, are both true and correct. Where I make averments not directly within my knowledge, I do so on the basis of information made available to me. I have no reason to doubt the authenticity thereof.

Adv Mpofu: Yes, that's fine. But then that's the whole point about affidavits, Mr Samuel, as you know, you should know, we even go further and say to the extent that there might be legal averments, there are...my legal representatives. That's exactly to cover people from the corner that you are in now. I'm saying that [chuckles] you have not indicated that this you say, for example. I'll give you just another example. You say, my summary above, in other words, your summary of the judgments. Do you understand that?

Mr Samuel: Correct. Yes, I do.

Adv Mpofu: Yes. So when I question you on the summary, which you say in your document is your summary, surely you must accept that I'm doing it on the basis that it says what it means, and it means what it says. Correct?

Mr Samuel: Yes, that's correct.

Adv Mpofu: Thank you. That's all I'm doing. So, I'm saying okay, let's...I'm being very nice to you, because I don't have time. Believe me that this is me being nice. If I was not, you'd be very, very… Well, let's go to the CR17 judgment. Have you read that judgment which is also summarised in your summary?

Mr Samuel: At some point, I read the judgment. I can't recall whether it was the whole case or just the judgment. Yes, but at some point, I read it.

Adv Mpofu: Which case did you read: the High Court case or the Constitutional Court case?

Mr Samuel: Generally, my interest is the Constitutional Court cases. I can't say that I did not read earlier versions of it.

Adv Mpofu: Yeah, but. Well, that's strange, because your summary is based on the High Court case.

Mr Samuel: Yes, I've just said that. I can't, I can't rule out the fact that I might have read earlier versions.

Adv Mpofu: Okay, Mr Samuel. Okay, so, so, you are...in the High Court case, one of the issues, the key issue was whether the donations of the CR17 could be classified as matters of the state. Do you remember that?

Mr Samuel: I will take your word that was the case. Because I...no, my recollection is not, as I say, it's not what it was, at the time that I read them. If you say that was the issue, I'll really take your word for it. You deal with these things, Adv Mpofu on a daily basis, I don't.

Adv Mpofu: No, don't take my word for it, because the last time you took people's word is now going to end you up in jail. I'm saying to you, in the High Court, some of the scathing remarks, which you will refer to, were about whether the Public Protector had jurisdiction over ANC donations – that you must know even from newspapers,

Mr Samuel: Yes, I do.

Adv Mpofu: Because I can see you've never read any of these judgments. Am I right?

Mr Samuel: You are not right.

Adv Mpofu: Okay. Maybe any of them is an exaggeration. You have not read some of the judgments that you rely on, correct?

Mr Samuel: That would be correct. Yes.

Adv Mpofu: Yes. And therefore, to the extent that you give the impression that you've read them, that is misleading, and perjury, correct?

Mr Samuel: Not correct. I deny that I've given an impression that I've read these cases. I have testified specifically to the fact that I was referring to the comments made, and as far as that is concerned, in supplementing my affidavit, those comments were then, you know, extrapolated to put in my, my affidavit.

Adv Mpofu: Say that again?

Mr Samuel: I'm saying those extracts, I was only interested in the extracts referring to the scathing comments made by judges. And to that extent, they were then put into the affidavit.

Adv Mpofu: Okay, Mr… I'm not going to... I'm trying to be nice here. And you are disturbing me. When you say, for example, at 26.1.8 in relation to the CIEX matter, you say, 'not unexpectedly, the appeal was unsuccessful'. You can't say that when you haven't read the judgment, so those can't be your words. Those must be words that were fed into your affidavit, correct?

Mr Samuel: That's correct.

Adv Mpofu: Pardon?

Mr Samuel: Yes, Advocate, that is correct.

Adv Mpofu: Yes. So that's what I'm trying to do. I'm just trying to be nice to you. Because, otherwise, I'm going to be forced to say, expand on that statement, when you say 'not unexpectedly' and so on. But we all know by now, that is not your statement. Correct?

Mr Samuel: But I reconciled myself with the statement, which is why I signed the affidavit.

Adv Mpofu: Yeah. Yeah, that's fine. That much I'm prepared to accept. You reconciled yourself with the statement, but it's not your statement, correct?

Mr Samuel: That is correct.

Adv Mpofu: Yes. So, really, I don't want, as I say, I don't want to torture you unnecessarily. The sum total of this is that this whole thing that we've been doing with you here for the past three days is just a waste, mighty waste of time. And it's not worth the paper that it is written on. We're just subjecting, you know, innocent citizens to lies, a barrage of lies, aimed at revenge and insulting the Public Protector with no basis, simply because you were disciplined for assaulting a 67-year-old person. What do you say to that?

Mr Samuel: I deny that, Chair.

Adv Mpofu: Which one do you deny? That is…

Mr Samuel: I deny everything that you say and okay, yes, it was an elderly person that I was involved in an altercation with, but I cannot vouch for his age.

Adv Mpofu: Okay, I'm telling you…

Chairperson: Just a pause, just a pause, Adv Mpofu. We have reached our mark. I'm going to give you 10 minutes to wrap up.

Adv Mpofu: Thank you, Chair. Thank you so much, Chair.

Chairperson: Thank you.

Adv Mpofu: Chairperson. The kind side of me says that I shouldn't, I should not. But I have to do what I have to do it's my job. Mr Samuel, why [in isiXhosa] are you lying?

Mr Samuel: I deny that I have lied, Chair.

Adv Mpofu: That's a lie. That one, that you deny that you lied is a lie. You know that you're lying.

Mr Samuel: Chair, that is the conclusion that counsel is drawing from my evidence. But I deny that that should be the conclusion and that it is in fact, the case.

Adv Mpofu: All right. Do you think the people at the Public Protector's Office should keep you in an office of that nature when you're like this?

Mr Samuel: I don't know what you mean when I'm like this; but you know what I know of myself when I'm like this. Yes, I believe they should.

Adv Mpofu: Do you think that our Office of the Public Protector, such an important office, should harbour people who are capable of lying under oath, at the slightest provocation?

Mr Samuel: I, I am not going to...I cannot comment on that one.

Adv Mpofu: No, generally, nothing to do with you.

Mr Samuel: No, to the extent that you have made a promise, Adv Mpofu, that, you know, a charge of perjury or lying is going to be made against me, I'm not going to, to answer that question. And, and thereby, yes, put myself at risk.

Adv Mpofu: At risk, yes. That the Americans call you're 'taking the fifth' on that one.

Mr Samuel: So to speak, yes.

Adv Mpofu: Yeah. No, that's usually done by people who are lying. That's fine.

Mr Samuel: I don't agree.

Adv Mpofu: Okay. No, that's fine.

Mr Samuel: That is what...

Adv Mpofu: It's your right. It's your right to silence. I'm the last one who will, will interfere with your right to silence. No, I'm saying, Mr Samuel, on a serious note, if the...assume for now that it can be established that I'm correct, that they are making evidence up as you go along and it's some of it is gobbledygook, that is, indecipherable. Would you say that a person like that should grace the upper heights of our Public Protector's Office?

Mr Samuel: To the extent that the Public Protector is an institution of integrity, it might be questionable keeping such a person, but I'm not prepared to say that that person should be fired, in the absence of any evidence that is the case and the person did so deliberately.

Adv Mpofu: No, fair enough. So what must be done with that person? They must be what, hugged?

Mr Samuel: I cannot answer that one, unfortunately.

Adv Mpofu: Okay. All right. Well, I put it to you that if the...all right, let me put it this way. If you were the Public Protector, or even the Acting Public Protector, and you listened to this evidence, would you, what would...how would it influence you as to whether the CCMA findings should be challenged or not? [shouting] Please answer that question with an open mind.

Mr Samuel: Yes, that's precisely what I'm doing, Chair. I respectfully decline to answer that question, because it might just be the point where I am, at this present moment, with the Office. I wouldn't want to participate in a process that might jeopardise me. Certainly from the suspended Public Protector's view, I can see the interest in her having me fired. To confirm or even maybe continue to fight, so as to confirm her earlier decision of dismissing me. But I can't speak of the current Public Protector. In fact, my understanding is that she is objective in her thinking, and so I will respect that. And leave it to her to make a decision, but I'm not going to assist.

Adv Mpofu: No, that's understandable. No, that's, that's understandable. So let's leave the Public Protector and Acting Public Protector. What about the 60 million South Africans? Do you think they deserve to have somebody like you in the Office of the Public Protector?

Mr Samuel: I certainly do. I have been in this Office, as has been made out here, for 20 years. In all that time, there's never been an issue about me being in this Office. And in the absence of anything that disturbs that flow, they certainly do deserve having me there.

Adv Mpofu: Okay, very last point until the Chair stops me. Hon Hendricks, one of the members of this committee, has raised a very important issue about collective. You know the difference between accountability, responsibility and liability?

Mr Samuel: If I put my mind to it, yes. I could spot the differences.

Adv Mpofu: Yes. So, in other words, for example, the Public Protector, the buck stops with her, so she's accountable for the institution. But she can't be held responsible if you assault a 67-year-old person, but she might be liable for the damages caused to that person, you know what I mean? So those three are different, alright?

Mr Samuel: Responding to those three, I will agree to the first one, that she is accountable for the institution, as the executive leader of institution. But I deny that she should be personally liable because there's a difference between the Office of the Public Protector as an institution and the Public Protector as the head of institution. Those are two separate entities. There I would, I would, you know, differ with you. And to the second one, I would need to be reminded

Adv Mpofu: It's responsibility, no, I was saying that you'd agree that she's not responsible for your actions; for example, if you assault a 67-year-old, sorry for making an example that is true. Yeah. If you accept, if you assaulted [a] 67-year-old person in Limpopo.

Mr Samuel: I deny that I assaulted a 67-year-old person in Limpopo. And, yes, she would not be responsible, if that had happened.

Adv Mpofu: Yes, but yet she might be held liable, you know, what we lawyers called vicarious liability. She might be held liable for your actions in the civil courts as she's being sued for R350 000 now. That example explains the difference between accountability, responsibility and liability. Would you agree?

Mr Samuel: Chair, I would not agree. I think, here, there's misleading information being fed out to the public and, you know, to sway the public into a particular narrative.

Adv Mpofu: By who? By me?

Mr Samuel: But the truth, but the truth of the matter is that the Public Protector would not be held personally liable, it is the institution. Vicarious liability applies to the employer. The employer in my case is the Office of the Public Protector.

Adv Mpofu: No, Mr Samuel. [indicated to end by the Chairperson]

Adv Mpofu: I'm done, I'm done, I'm done, Chairperson. I just wanted to say that, Chairperson, the date of the video is 17 February 2020.

Chairperson: 17 February 2020, thank you. Thank you, Adv Mpofu.

Adv Mpofu: Yes. And thank you Mr Samuel, I hope not to see you again [chuckles], thank you.

Clarification by Evidence Leader
Adv Nazreen Bawa said that Adv Ncumisa Mayosi would lead the questions.

Chairperson: Mr Sphelo Samuel. Are you still there?

Mr Samuel: Chair? Yes, I'm still here.

Chairperson: Yeah, no, I expected you to be still here because I have not released or excused you. Thank you for doing that. Before I excuse you or release you, I'm now, in terms of directive 6.16, going to ask the evidence leader to quickly raise a few issues.

Adv Bawa: Adv Mayosi will be doing it.

Chairperson: Adv Bawa, Adv Mayosi.

Adv Mayosi: Thank you, Chair. Mr Samuel, you can hear me, right?

Mr Samuel: Yes.

Adv Mayosi: I'd like to address a few questions to you, relating to the in loco inspection, which was discussed between you and Adv Mpofu during your cross-examination.

Mr Samuel: Yes, Chair.

Adv Mayosi: I have a few questions for you in relation to how you can assist the committee to clarify whether or not you were in fact at that in loco inspection. You testified that you were there. It was Adv Mpofu's evidence that the Public Protector will either dispute it or she has no recollection of you having been there. It's correct that during the lunch break, lunch adjournment, today, in order to assist this process, you provided us with some photographs, is that correct?

Mr Samuel: That is correct, Chair.

Adv Mayosi: I'm going to ask our IT assistant to put them up. Are these the photographs that you gave us?

Mr Samuel: Yes, they are.

Adv Mayosi: Can you tell the Committee, Mr Samuel, where were these photographs taken?

Mr Samuel: These photographs were taken at the Vrede farm on the day of the inspection. I can identify all the people that appear on that photo.

Adv Mayosi: Just confirm again, that's the inspection of 10 April 2017. Is that right?

Mr Samuel: That is correct.

Adv Mayosi: Okay. Can you then just confirm for the Committee and for the record who the people are that were with you there, as reflected in those photographs?

Mr Samuel: Starting from left to right. That is Adv Sisa Mlonyeni, one of the people that was on the team investigating Vrede. Next to him is, I can't recall his name, but he was the farm manager. He was the manager of that farm in Vrede. Then next to him is Adv Vincent Maseko, from the Free State Office, also part of the team that investigated. Then next to him, just the face appearing, is Adv Erika Cilliers, followed by Adv Mkhwebane. At the back, Adv Isaac Matlawe, and the last person there, the huge person, is myself.

Adv Mayosi: Thank you. Can you show the several photographs that were sent – just for him to confirm?

Mr Samuel: [photo shown on screen] Yes, that is one of them.

Adv Mayosi: Yes.

Mr Samuel: [another photo of the same day shown on the screen] Yes, that is also one of them.

Adv Mayosi: Great.

Chairperson: Same picture with different poses.

Adv Mayosi: And they were taken on the same day, at the same inspection in loco. Is that correct?

Mr Samuel: That is correct. I may just add that these photos was the reason why I provided them now, during the lunch break. I had to ask for them from Adv Sisa Mlonyeni, because those that I had taken, did not show that I was there, because I was the one taking my own photos. That is why I got them now.

Adv Mayosi: Okay, thank you. Can I also just canvas another issue that came up during your cross-examination? That is the issue regarding the judgments that are quoted in your supplementary affidavit. Is it correct that the basis of the paragraphs that are cited from the judgments in your supplementary affidavit, they arose in the context of your evidence, in relation to what you identified as reckless litigation, is that right?

Mr Samuel: That is correct.

Adv Mayosi: Then the citation of these judgments came about because you said that there'd be numerous cases where scathing comments were made about the PP. These cases themselves led to what you described as excessive legal costs that you spoke of in your affidavit?

Mr Samuel: That is correct, Chair.

Adv Mayosi: You then wanted those comments, some of the comments, made in the judgments and which found themselves in your supplementary affidavit. You wanted those comments from the judgment incorporated in your affidavit. And you asked the evidence leaders to assist you in this, is that right?

Mr Samuel: That is correct.

Adv Mpofu: Chairperson? Sorry.

Chairperson: Just pause. Adv Mpofu.

Adv Mpofu: Okay, Chairperson, I just want to object to everything that is going on now. I just allowed it to go because the evidence of the photograph was important. As we said, we're also been blocked from getting the evidence. But firstly, that evidence, if it was truly obtained at lunchtime, as the evidence leaders are saying, they know that they have a duty to have shared it with us. You can't just spring evidence like this; we always send them evidence, even at night, so that we ensure that they're not ambushed with information. By doing this, then they're entitling us to further cross-examination, which we don't really want to go there. That's the first thing. The second thing is the kinds of questions which are being put now, to which all the witness has to say is yes, yes, yes. If Ms Mayosi wants to testify, she must take the stand, so that we can cross-examine her. Otherwise, there's no point in just using the witness as a conveyor belt for her views. The third thing, Chairperson, what is being done now – I don't know under which procedure this is being done. We're being ambushed by everyone, including the evidence leaders and you, Chairperson, by allowing a process that is not allowed. Since when do we have re-examination like this? It can't happen only when the witness has collapsed. If it's a rule, it must happen with every witness. You can't rehabilitate this particular witness. There's no rule like the one that is being done now; this is just abuse of the Public Protector.

Chairperson: Thank you. Thank you, Adv Mpofu. I'm quickly asking Adv Bawa to respond on the issue about the picture sent. Then I will respond and make a ruling on the other issues that you have raised.

Adv Mpofu: Thank you, Chair.

Adv Bawa: Adv Mpofu is correct. I should have sent the photographs. We had a technical difficulty in getting the photographs. It kept on hanging on my machine. I passed it on to the secretary to see if they could get it, and he's right, once we got that sorted out, by that time, he had started already. So we should have sent it to him. It wasn't an intent to ambush. It's just a case of where I don't have email and WhatsApp on my phone. I couldn't get the thing to work by sending it. And so we just did that. But it is absolutely correct. There was no intent to ambush him with it. None of the questions in relation to the in-loco inspection in any event arose after the lunch adjournment. But Adv Mpofu, there was no intent to ambush you, there was an attempt to get the electronics to get it to be able to flight and by oversight, I didn't give it to you. I apologise. On the question of its relation to the pictures, under 6.16...

Chairperson: I was going to address that; you can leave that to me. I only wanted you to deal with the fact that Adv Mpofu said that he did not have that picture that we've just flighted here and you're confirming that by the time it was flighted, it would not have reached him.

Adv Bawa: No, it would have, I should have alerted him by the time I came in. And I realised the photographs were here, he was already...had started.

Chairperson: Thanks for that, thanks for raising that, Adv Mpofu. In relation to the flighting of the picture or the various pictures that would not have been shared with you, we have always been consistent, that whether it is yourself or the evidence leaders, that exchange of information is important. So your order is sustained. I take that. Let me now go to the next point you have raised. Because you have made points about the exercise, my calling the evidence leader is done outside of rules. And you're checking what rule or procedure is that, because that one is not dependent on the picture that would have been shown. And when I started, I would have quoted the directive. There's directive 6.16 and let me read for completeness to you, that says, "After Members have posed questions, the evidence leaders may ask any questions arising, or seek clarity from the witness in relation to questions posed to such witness, where after the Chairperson shall excuse the witness from the hearings". Now, that's the directive that I pointed to. That could not be done on Friday, when the Members had finished their questions, and I made a decision that is not what I'm going to start with that today because you were already doing the cross-examination. So whatever we're doing, is within the rules. There's a directive that is very specific in terms of that. In that regard, any other questions by evidence leaders, that have nothing to do with the in-loco inspection and with the pictures, please complete them.

Adv Mayosi: Thank you, Chair, and may I just point to...

Adv Mpofu: No, no, no, no. I'm sorry. Sorry, Ms Mayosi. No. Let me respond. Thank you, Chairperson. Well, on the photograph, as I say, Chairperson, even though technically, I was entitled to have it, I don't want to stand in the way of anything that is relevant, as I indicated here that we ourselves have been struggling to get the proof, but we're being frustrated by lack of information from the Public Protector's Office. Actually, if the evidence leaders had done what they were supposed to do and given us the information at lunchtime, we would, I would have been the first one to say to you, we... That's why I said to Mr Samuel, let's proceed on the basis that you were there because I can't say to him, he wasn't there when I myself don't have concrete... that would be unprofessional. So, I'm not worried about that. That's fine. It's neither here nor there. Because all the questions were put on the basis that he was there. I'm not saying because we didn't receive the photograph, the evidence must be excluded, or whatever. No, that's not where I am. I'm simply saying that in terms of fairness, and my learned friend has acknowledged that they should have done so. What they really should have done is if their IT was not working or whatever, then we should have held back on those questions, until such time that we received the information. They know that they should do that. But again, I'm not going to quibble about that. So let's, let's leave the issue of the photo.

Adv Mpofu: The second issue is much more serious, which is the issue of the, what you call, rule 6.16. Chairperson, you know, this process is going to be, I don't know what is a kind word to use, it's going to be spoilt by these procedural irregularities. Firstly, we have a situation about where the cross-examination was interrupted by Members' questions. We've had a whole debate about that. I don't want to go into that. As a result of that, we find ourselves in this situation, because you know, that had the Members asked the questions after the cross-examination as they should, then you can invoke 6.16. It cannot be invoked this way. This is an ambush and an illegal one because what is happening now, is that 6.16 is not being invoked. You see, that's why you have to read the thing in staccato because it says after Members have posed questions, the evidence leaders may ask any questions arising. In other words, arising from the questions of the Members. The questions that are being put now arise from my cross-examination, not from the questions of the Members, which is completely a violation of this 6.16. There's a reason why those questions that are asked must arise from the Members' questions – which Members' questions should succeed my cross-examination. But because the situation, the process has been, you know, converted and put upside down, we end up where we are now. So any questions, if the evidence leaders want to ask questions arising from the Members' questions, out of turn, they can be my guests, but they must not ask questions that arise from the cross-examination, which was illegally put after the Members. Thank you.

Chairperson: Yes, Adv Mpofu. Thank you. Thank you, Adv Mpofu. Before I respond, I'm going to read it again. Then I'll respond and make a ruling. Directive 6.16 says, 'After Members have posed questions, the evidence leaders may ask any questions arising, or seek clarity from the witness in relation to questions posed to such witness'. In other words, every question that would have been asked of the witness, not just by the Members. That's why it gets to be a directive afterwards that we have to kind of invoke; where after the Chairperson shall excuse the witness from the hearing. That's a proper reading of that section. I don't want us to be discussing it because these are the directives that have been kind of signed off, that are directing this process, because it is going to happen all the time at the end of the interaction with that witness. I am going to ask evidence leaders, and they may ask questions for certain witnesses and others, they did not. I just want to give you that clarity. As a result of that, I do want to proceed and ask Adv Mayosi to complete further questions.

Adv Mpofu: But Chairperson, I'm sorry about this. I don't want to waste your time. But let me just warn you about what you're doing – if this is what happens when you make rules as you go along. The second issue is therefore that it amounts to re-examination, if you are saying they can ask questions arising from the cross-examination, that is called re-examination. And if that is well…

Chairperson: That's not what it says, Adv Mpofu. It is dealing with all the questions, including cross-examination. It is very clear the way it is done.

Adv Mpofu: Yes, Chairperson, I'm assisting you as, as a lawyer, I'm saying if you ask questions arising from cross-examination, that thing is called re-examination. Okay, believe me. So if the... All I'm saying to you is that if there is a right for re-examination by the evidence leaders, then we're going to have to have the same rights for re-examination, because we can't have a process where only one side is going to have a right to re-examination. So you're opening a can of worms to solve a small problem. You're just messing up, I'm sorry, spoiling the process, and changing the nature of the process. Therefore, I'm saying that you must just be aware of the implications of that, because this is yet another example of this process just been gerrymandered in order to suit particular circumstances, but which will have serious implications. Thank you.

Chairperson: Thank you, Adv Mpofu, just before I hand over to Adv Mayosi. We would not have done rules as we go along. These directives, at the beginning of the witness process, were signed off for that purpose. There would only be one issue that as a Committee we would have amended, which is 5.9. So everything in it would have been there at the beginning. You had indicated your own displeasure and discomfort, but these are directives of the parliamentary committee. So I want us to just leave it there. Adv Mayosi.

Adv Mpofu: Okay

Adv Mayosi: Thank you, Chair. Just to address Adv Mpofu's objection as to the manner in which I'm eliciting this evidence from the witness. His objection is that I might as well be giving evidence myself. If I could just point him to directive 6.7, which entitles the evidence leaders, in presenting evidence here, to ask questions which include leading questions of any witness. So, Mr Samuel, if I could go back to you, Mr Samuel?

Mr Samuel: Yes, I'm here, Chairperson.

Adv Mayosi: Thank you. We were discussing the judgments and how it is that they found their way in your affidavit. e had ended at the point where you confirmed that you wanted certain excerpts in the judgments to be put. You asked the evidence leaders to assist you in doing so, is that right?

Mr Samuel: That is correct.

Adv Mayosi: In that process, Adv Bawa took you through the various passages in the judgments, correct?

Mr Samuel: That is correct.

Adv Mayosi: And then various drafts of your affidavit were sent to you on a number of occasions, until you were satisfied with the contents of your affidavit, including the excerpts of the judgments that found their way in there. Is that right?

Mr Samuel: That is correct, Chair.

Adv Mayosi: Thank you, Mr Samuel. Chair, I don't have any further questions for Mr Samuel. But the evidence leaders do want an opportunity to set the record straight on a number of things, not necessarily for this witness, but just for the Committee itself. I think it's important, Chair, for us as evidence leaders to set the record straight. There are a number of descriptions of the evidence leaders to which Adv Mpofu has alluded. In last week, during Mr Kekana's cross-examination, the evidence leaders were accused of acting like we were prosecutors. On Thursday last week, during Mr Samuel's cross-examination, there was a suggestion that we, as the evidence leaders, were seeking to lead the evidence of the judgments in through the witness. It was suggested to Mr Samuel that he was a phantom witness, or a witness who is prepared to utter the words put in his mouth by the evidence leaders. Chair, we wish to state that we as the evidence leaders do not intend to lead evidence of the judgments through witnesses. The judgments speak for themselves. We will deal with those judgments at the appropriate time when Adv Mkhwebane herself gives evidence before this committee. Process-wise, insofar as eliciting the evidence of this witness, I think Mr Samuel himself described the process that we were engaged in, in obtaining his supplementary affidavit and how it is that the judgments found themselves quoted in the manner that they were quoted in his supplementary affidavit. We want to take this opportunity to explain those aspersions or illusions relating to the role that the evidence leaders play, and we will, Chair, through you, as these hearings play out, take this opportunity to correct this every time that this issue arises.

Adv Mayosi: The other issue that I think Adv Mpofu referred to today, which it appears to be rearing its head again, is his complaints that the PP does not have access to information or documentation from the PPSA because she's been suspended. We thought that Adv Bawa had dealt with this issue quite early on after these proceedings began. She had clarified it with reference to the letter written to the PP by the Acting PP on 10 June, assuring her of the support of that office and inviting her to request whatever information/documentation she needed from that office. We thought that had been resolved, because I think it was reported to this committee shortly thereafter, that whatever email blockages or inability to access information there had been, were no longer there. And that had been resolved. We were not aware that this is a continuing problem. We hear of it for the first time today. In fact, last week, Friday 29th, a request was made to us, the evidence leaders, for some documentation in the PPSA Office and Adv Bawa referred the PP's attorney to the PPSA Office as being the proper place, the correct place to seek those documents. We are not aware that there is a continuing inability to access documentation for the purposes of the PP's preparation for these proceedings. We just thought that it's important to clarify that. And to the extent that there is, we invite you to engage with the Office of the PPSA in order to try and unlock those blockages. Thank you, Chair.

Chairperson: Thank you, Adv Mayosi, for those clarities. Before I address Mr Samuel, I see you want to speak, Adv Mpofu.

Adv Mpofu: Yes, Chair, very briefly. Chair, I really don't want to do this. The first issue is that well, I'm not going to address the other issues, the statements about the phantom witness and the evidence coming from the evidence leaders. I think the evidence will speak for itself, we stand by those statements. The issue is that about the access. It's not correct, what is being put to you, Chair. It can be that we came here this process started on 11 July, which was more than a month after the letter that Adv Mayosi is referring to, and we were still stuck at that point with the issue of no access to emails. And now we must not say that is because of the suspension? What is it because of? Because if the Public Protector was not suspended, she would have had access to emails. I mean, you know, so that's exactly what we've been saying that the suspension is directly related to the fairness of this process. And as you know, Chair, in fairness, once that issue was resolved, we came back to the Committee and reported – I think it was towards the end of the first week, that the issue had been resolved. But it cannot be wished away. Because by that time we were midstream into this process. It was distinctly unfair for the Public Protector not to have had an opportunity to prepare beforehand. The current issue is we've been literally since I think Thursday / Friday, trying to establish whether Mr Samuel was present at the inspection. And that's why I had to do that because, as I said to the witness, you wouldn't have allowed me to stand the witness down. So I had to do it on the assumption that he was there, but at least tell him that we're still trying to investigate this. We wrote letters to the Office of the Public Protector to get the sequence of where the witness was at what point because they would have a paper trail of some sort. That letter was copied to the evidence leaders. So I don't know why now, this surprise, what we're talking about, there's been no response from the Office of the Public Protector. We were not asking the evidence leaders to respond, because it's not their baby, either. But we informed them that's why we copied them, so they can claim not to know about the frustration. And suddenly they've discovered it 10 minutes ago, that's not true. So those are the issues, and they are a direct result of the illegal, vengeful suspension of the Public Protector by the President , which was intended to unseat her in this process.

Chairperson: Thank you, Adv Mpofu. I wanted clarity whether this issue of access is the historical issue which you placed on the record when we started, and was, as you correctly say, resolved at the end of that week, after the intervention. I was interested whether there is a new blockage in that. I just wanted to get that clarity before I hand over to Adv Bawa. And if there's a new blockage, it's important that as a Committee we know that and we are able to make intervention.

Adv Mpofu: Thank you, Chair. Yes, yes, I'll clarify that very quickly. No, it's a new problem. Let me put it that way. It's not the same issue of the blockage of the emails. That was resolved as we reported. This is not about access; it's not an IT problem. As you know, the process is flowing and fluid, so we make requests. We want this information: Mr Samuels travelling itinerary and something like that. Then it's not supplied. If we ever get that information, by that time the witness, Mr Samuel, is already gone – so it will be worth nothing. So it's a different problem, Chair.

Chairperson: Okay, I get you. Thank you for that clarity. Certainly, it is an issue that as the Committee Chairperson, I will have to also assist in it. Adv Bawa.

Adv Bawa: I was asked, and I just want to be sure about when I was asked, I think I was asked for this very early Friday morning. When I came in, I indicated we didn't have that information, it needs to be sought from the Office of the Public Protector. The Seanego associate addressed an email, which I was copied in, and I said to her, put in your request and copy us in, because if you require something that we do have, I will alert you to it – as was the case with the documents or judgments that she wanted to put out last night, I alerted that we actually have them on the record, it wasn't necessary. I see that the correspondence was addressed 9am on Friday and a request was made 7.20 Friday evening. Now, I will give the CEO of the Public Protector a call to ascertain whether...

Chairperson: That request was made to the Public Protector's Office on Friday?

Adv Bawa: It was sent to the Public Protector's Office and I understand it relates to documentation emanating back to 2017 of a subsistence and travel claim. And I suspect, well, let them rather tell me what the problem is in obtaining what appears to be a financial voucher going five years back.

Chairperson: Alright. Okay, you're done? Well, thank you for that at least there's this convergence on the issue. So, we're going to even tomorrow check. Perhaps if you can overnight check that, so that tomorrow we get an update on that issue.

Adv Bawa: Can I just check with Adv Mpofu. Has there been any other requests to the Office of the Public Protector that they have not received a response to?

Adv Mpofu: I think we did send another letter on Saturday. But look, let's just deal with this one, because it's relevant to this witness. No, if there's any other requests, we'll copy the evidence leaders. The point is simply this. We don't want to block this process. Because ordinarily, we would have then said, no, let's postpone Mr Samuel's cross-examination so that we wait for the documents. But we don't want to do that. We want this process to run as smoothly as possible. You wanted an inquiry, we're here to do an inquiry. That's why I had to do that kind of creativity in my cross-examination to say, Mr Samuel, we don't remember if you are there or not, but let's work on the assumption that you were there, so that we can...we don't block the process. So, we're trying to be as helpful as possible, we simply need reciprocity, and for people to assist where they can instead of blaming us and misrepresenting the facts.

Chairperson: Thank you, Adv Mpofu. Thank you to evidence leaders.

Adv Bawa: Maybe, if it does assist, for what it's worth, we sent off a request early on to ascertain and a response on Adv Mayosi's phone, which has just come in, is that 'we can't find Mr Samuel's travel form at head office. We are still checking with the province'. So, I don't think there's a deliberate issue. But that's the…I'm not aware, Adv Mpofu, of any letter sent on Saturday that was received. So, I think they should probably have indicated that to them.

Closing remarks
The Chairperson thanked Mr Samuel for his time as a witness, over three full days. He also thanked Committee members, Adv Mpofu and the PP’s legal team, the PP and evidence leaders.

Mr Samuel thanked the Committee for affording him the opportunity to be part of the proceedings and thanked Adv Mpofu.

The Committee discussed the programme for the next two weeks. Mr Vussy Mahlangu would be the next witness tomorrow, Tuesday 2 August. The following two days would depend on whether the Committee was done with Mr Mahlangu. Mr Pillay would be called as a witness for Friday 5 August. The following week would only have hearings from Wednesday 10 August to Friday 12 August. The following thereafter would proceed as usual, with an expected end of hearings on Friday 19 August. Thereafter, the Committee would deliberate on the evidence. On 23 September, the Committee would propose a draft report and on 24 October it would adopt the final report.

The Chairperson said that the programme and process was dynamic and would change depending on what came up.

Adv Mpofu asked to be excused for the following morning, but his team would be present with Adv Tshabalala leading.

The meeting was adjourned.

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