The Committee for Section 194 Impeachment Inquiry met in a hybrid format. The Chairperson, the evidence leaders and a number of Committee Members were physically in Parliament while the Public Protector, her defence team and other Committee Members joined on the virtual platform.
The witness, Mr Vussy Mahlangu, previous Chief Executive Officer at the Office of the Public Protector (OPP), had worked there for 18 months from May 2018 and then suddenly resigned in January 2020. He is currently unemployed, apart from a directorship, but would not give a reason for his sudden and unexplained departure 18 months into his contract. His name had specifically been mentioned in suspension or charging four staff members in their individual affidavits. Therefore his intention in providing an affidavit had been to clarify the misconceptions that prevailed and the misrepresentations that he had picked up in the documents before the Committee. His evidence would focus only on instances directly relevant to him with the main allegations against him referring to the intimidation, harassment or victimisation of staff when he was CEO. He stoutly defended the Public Protector, denying that she in any way mismanaged staff.
Early evidence focussed on his statement that he did not know the Public Protector prior to his employment in her Office and the fact that, although he had been found guilty of misconduct in his previous employment as Deputy Director-General for Land Reform in the Department of Rural Development and Land Reform, he was appealing the ruling in the Labour Court. He had, nevertheless, served the required prohibition period out of the public service following a conviction – before taking up the CEO post. He had been found not guilty on the charge of corruption, although his arrival at the OPP had caused an outcry amongst some employees, one of whom later faced disciplinary charges and who will be testifying at a later stage.
Mr Mahlangu explained the Security Service Agency (SSA) had declared that it would not process his security clearance for the CEO position until his appeal had been heard. This led to further dissatisfaction in the OPP as for the 18 months that the CEO was in office, he had not had any security clearance, much less a top secret clearance.
Mr Mahlangu gave evidence that he had been responsible for the administrative side of business and his only interaction with investigations or investigators was to provide resources in the form of the tools of the trade. He was only involved in meetings where timelines of investigations and support required were discussed. He was responsible for initiating disciplinary procedures and provided justification for instituting disciplinary proceedings, particularly for a case based on an event in 2011. He was responsible for suspending the Head of Security and initiating disciplinary proceedings against two staff members for leaking information. He provided the circumstances for a case against four staff members who had mislaid documents in the office, leading to the Public Protector being unable to defend a review of one of her reports. In his testimony, Mr Mahlangu was adamant that the Public Protector was never involved in disciplinary action and that he was not her henchman. He repeatedly stated that there were two lanes and that he was in the administrative and the Public Protector in the investigative lane. The Public Protector was, therefore, never involved in disciplinary matters. Mr Mahlangu also testified to how monies could be transferred from investigations to pay for litigation by the Public Protector to defend her position as Public Protector.
In cross-examination, the Public Protector’s legal team referred to an email that had not previously been submitted as evidence. In closing the session with the witness, the evidence leaders clarified that one of the emails was from the Public Protector in which she gave instructions on who was to testify at a disciplinary hearing and what she had to testify on. In the email, she also called for a fourth person to be charged for mislaying documents.
Chairperson: As indicated yesterday, the defence team will be led by Adv Shabalala. Adv Bawa.
Adv Bawa: Good morning. The witness today is Mr Vussy Sonnyboy Mahlangu.
Chairperson: I recognise Mr Jenkins who is standing in place of Ms Fatima Ebrahim to do the important part of introducing the witness to this inquiry. Mr Jenkins, can you hear us?
Senior Parliamentary Legal Advisor Adv Frank Jenkins: Good morning, sir. For the record, could you please state your full name?
Mr Mahlangu: Vussy Sonnyboy Mahlangu.
Adv Frank Jenkins: Thank you, Mr Mahlangu. I've been asked to administer the oath … please raise your hand and confirm.
Mr Mahlangu: Yes.
Adv Jenkins: The oath has been administered.
Adv Bawa: Good morning. You submitted an affidavit and you were assisted by the evidence leaders?
Mr Mahlangu: Yes.
Adv Bawa: Can you explain the interaction that you had with the evidence leaders leading up to this inquiry? I'm specifically dealing with reference to paragraph three of your affidavit.
Mr Mahlangu: Okay. As I stated, in my affidavit, paragraph three, I was contacted by the two evidence leaders. They informed me of this committee. They provided me with information, more than 10,000 pages. I sifted through the documentation. Obviously, I focused on some pages that are more relevant to what I had been doing when I was still at Public Protector South Africa (PPSA).
Adv Bawa: Mr Mahlangu, at the time, you were informed that your name had come up, and you were specifically mentioned in relation to charge four and, for that reason, it was important that we were able to meet with you, in order that you could put your version before the Committee. Does that accord with your recollection?
Mr Mahlangu: Yes. Like I said, there was a lot of information. I decided to focus mainly where my name is, so that I can clarify the misconceptions that prevailed and also the misrepresentations that I picked up in those documents. Hence, I submitted my own affidavit.
Adv Bawa: In fact, when you met with us, you might have made clear that you had not had an opportunity to read the entire 10,000 pages. Correct?
Mr Mahlangu: Correctly so. It was so difficult for one to go through the entire documentation. That is why I was selective.
Adv Bawa: In paragraph four, you explain your motivation for being prepared to make the affidavit. Correct?
Mr Mahlangu: Yes.
Adv Bawa: And can you just tell the Committee what that was?
Mr Mahlangu: It is basically that there was so much that was said about me when I was an accounting officer that it became important that I testify to this Committee on those issues that were raised.
Adv Bawa: Although you had no desire to want to come and give evidence before the parliamentary committee, you provided the affidavit, and you indicated that if you were called, you would come. Is that so?
Mr Mahlangu: Yes, I was always flexible. The intention was not to come, but I made it clear to the evidence leaders that if they needed me to come, I would.
Adv Bawa: Maybe if we take the general proposition and then work into the specifics, as it is the format of your affidavit, that would be easy. You point out in paragraph five, what your answer is to the allegation that has been made against you. Can you maybe tell the Committee what that is?
Mr Mahlangu: The main allegation was basically me intimidating staff, harassing or victimising them when I was the CEO. So that's the main issue that needs to be addressed.
Adv Bawa: What is your view in relation to the allegation? What is your position?
Mr Mahlangu: Well, maybe as we go along the affidavit, I will be able to state my case. The intention is to deal with each and every one of the allegations, one by one, so that I don't generalize, but you can demonstrate to the Committee how things transpired and how things were handled, especially regarding the disciplinary matters.
Adv Bawa: In paragraph five, you, at the outset, state that you deny having intimidated or having been asked to victimise any staff members, while the CEO of PPSA. So I just wanted to get the general proposition out of the way before we come to the specifics.
Mr Mahlangu: I deny that now.
Adv Bawa: You make it very clear upfront, that prior to your employment at the PPSA, you did not know Adv Mkhwebane at all. Now, in dealing with the affidavit, we first deal with your background and what I realized last night was not in your affidavit were your qualifications, which would be useful for the committee. So just give them an idea of your qualifications.
Mr Mahlangu: I am a graduate. I have a degree in Public Administration, and an Honours in Public Administration, as well as in Political Science. I have acquired a number of certificates lately in the industry, via the SMS (Senior Management Service) Programme in the Public Service.
Adv Bawa: Before you joined the Public Protector's Office, you were the Deputy Director-General: Land Reform in the Department of Rural Development and Land Reform.
Mr Mahlangu: Correct.
Adv Bawa: And you answered initially to two Ministers. Who were they?
Mr Mahlangu: Yes, basically, during my tenure, I think it was Minister Xingwana and then later it was Minister Nkwinti.
Adv Bawa: During the course of your employment, you faced disciplinary charges?
Mr Mahlangu: That is correct.
Adv Bawa: And those disciplinary charges are attached to your affidavit at page 2729. Can you take the Committee through those charges? Then maybe briefly explain the context of the charges.
Chairperson: Mr Mahlangu, just before we proceed. I just want to make sure I got this right. You said you are reporting to two Ministers. Were you a DG?
Mr Mahlangu: No, I think the question was about who, during my tenure, were the Ministers.
Chairperson: Thank you. I get that now.
Adv Bawa: My apologies. I raised the question clumsily.
Mr Mahlangu: Yes. Page 2729 talks about the allegations of misconduct and notice to attend a disciplinary hearing in terms of chapter seven of the Senior Management Service Handbook. A number of charges. The first one is that Mr Mahlangu was a Deputy Director-General of Land Reform and was employed by the Department of Rural Development and Land Reform and therefore, an officer of the Public Service of South Africa and a member of the Senior Management Service hereby charged with misconduct in terms of chapter seven of the SMS handbook and for the act of conduct discharge sheet by given notice to agenda disciplinary hearing, in terms of no. 271 of the Disciplinary Code, Chapter Seven SMS Handbook.
Adv Bawa: Sorry, Mr Mahlangu, I don't think we need you to read it, it is too long. I shall rather just lead you through the charges. Okay?
Mr Mahlangu: Okay.
Adv Bawa: Effectively, you were charged with six charges of misconduct and that's related to Bekendvlei, land that was acquired under the Proactive Land Acquisition Scheme (PLAS) project. Can you just briefly tell us what that was?
Mr Mahlangu: Just a brief background: Land Reform has got three components, you've got the redistribution, and then you have the tenure security and then you have a restitution programme where normally families would claim their ancestral land. PLAS was a main programme in the land redistribution strategy. It was called PLAS because the Department took a decision that we should proactively acquire the land and hold it, which means that it doesn't need to have an applicant for that land. But if we come across land that is for sale, we'll buy it and then identify beneficiaries. Bekendvlei became one of the projects whereby we bought and then we later allocated to beneficiaries.
Adv Bawa: And the allegations emanated in 2011 relating to the identification selection, appointment and approval of the beneficiary's selection selected for Bekendvlei. So charge one, charge two, charges three, four, and five relate to the issue of the beneficiaries and acquisition and instructions relating to the land and then charge six, related to misconduct in the unlawfully caused funds budgeted for other projects in the national office to be allocated to the acquisition of the Bekendvlei PLAS project. You were found guilty of charges one to five but not charge six. What was the rationale behind the thinking that you were not guilty under charge six?
Mr Mahlangu: Charge six was basically that I was in violation of the PFMA (Public Finance Management Act), but, as the Deputy Director-General for Land Reform, I had all the delegations to shift the funds around. For instance, if I can make an example, let's say a particular province is behind in finalising the paperwork to acquire land and then another province is ready; towards the end of the financial year, we'll take stock to see who's ready, so that we don't lose anything. I then shift our funds to where I know that we'll be able to acquire land. So they found out that that particular charge was not applicable because I had those delegations. This was part of the strategy of avoiding underspending and compromise on service delivery. Okay.
Adv Bawa: And so if you go to page 2733, you were dismissed pursuant to these disciplinary proceedings. The essence, Mr Mahlangu, is that you are not found guilty of corruption or misappropriation of funds. That's the essence of not having been found guilty on charge six, and only on the first five charges, and you then instituted review proceedings in the Labour Court.
Mr Mahlangu: Right, yes.
Adv Bawa: And these proceedings were instituted on 12 April 2018. Then there was a spat about whether the review had lapsed, and whether the application should be reinstated, correct?
Mr Mahlangu: Yes.
Adv Bawa: There is a judgment which is attached to your papers at page 2734. That's the judgment of the court, which really cites the review application. The matter is still pending. You applied for the job as CEO at the PPSA in 2018, correct?
Mr Mahlangu: Yes.
Adv Bawa: You responded to an advertisement to do so. I had a copy of that advertisement and I shared it with you last night but I could not find it by the time I got home. If we go to page 2744 of your affidavit. Although it is not identified on the document, it is an excerpt of section 61 of the Public Service Regulation in Government Regulation 877 of 2016. Can you explain to us, Mr Mahlangu, what this reflects/
Mr Mahlangu: The schedule on 2744 is basically the classification of the acts of conduct that you will typically find in the Public Service and what it means in terms of prohibition from being appointed to the public service once you have been dismissed. The little box talks about the effects of misconduct. For instance, the first one says, the offering of any potential gratification or the facilitation of such and it gives you or the period of probation before you can be reconsidered for the Public Service. The first one is five years, and then the second one that talks about sexual harassment, then the unfair discrimination. Then it gives the number of years which is more than four years and then you move to the next one which is three years and then the last one, which is one year. If you go back to the charges, the charges relate to misconduct, not to any of the first three - fraud, conducting business, blah, blah, blah. Then it basically talks about a contravention of any provisions of regulations 11 to 14 of chapter two of the SMS regulations other than misconduct, which means, because my charge was misconduct, I was able to return to a government institution after one year.
Adv Bawa: In essence, by the time you applied for the position at the PPSA, your one had lapsed.
Mr Mahlangu: I was then eligible.
Adv Bawa: So you had an interview. Who conducted that interview?
Mr Mahlangu: The interview was conducted by the Public Protector, Chairperson of the Public Service Commission, Deputy Public Protector and the HR Head of the Public Service Commission.
Adv Bawa: And you were then appointed for a period of three months pursuant to an appointment letter. Why was it that you were only appointed for a three month period?
Mr Mahlangu: I think it was the standard way of doing things, to say you shall be under probation. I think it was generally three months to six months before the Public Protector made a decision about a full time employment.
Adv Bawa: If you see page 1452 which may be in the documentation provided to you, but will be flighted on screen. Even though your fixed term contract says three months, there's a performance agreement concluded between yourself and the Public Protector for one year from 1 May 2018 to 31 March 2019.
Mr Mahlangu: The rationale around that was that your performance agreement must always be aligned to a financial year because it is statutory requirement in terms of the DPSA (Department of Public Service & Administration). Whether there was an extension or not, at least the performance agreement talked to the financial year.
Adv Bawa: And then after a period of three months, your position was then extended, and if you go to 1458, we see the extension was then from 1 August 2018 to 31 July 2019.
Mr Mahlangu: Yes.
Adv Bawa: Correct. If we just look at that for a moment, I will flag it and we'll come back to it. A condition that is contained in paragraph two of your employment contract is that the offer of appointment is subject to your obtaining the top secret security clearance from the State Security Agency, and should your dismissal from the Department of Rural Development and Land Reform be confirmed by the Labour Court, the contract shall terminate on the date of the court order, unless the employer decides otherwise after having studied the judgment?
Mr Mahlangu: Yes.
Adv Bawa: And your employment in the first fixed term contract didn't have the same condition?
Mr Mahlangu: I think so.
Adv Bawa: If you look at paragraph three, they ask you for a confirmation that there's no confirmation that you would be employed beyond the termination date in paragraph three on the mouth of the employer.
Mr Mahlangu: Yes.
Adv Bawa: Fine, then if you go further on, it states you are effectively the accounting officer, correct?
Mr Mahlangu: Yes.
Adv Bawa: If you go further on paragraph 9.2, on 1460, it says that you accept the appointment is subject to paragraph 9.2.2, i.e. Obtaining the top secret security clearance from the State Security Agency and that both parties agree that failure to obtain a top secret security clearance will result in the termination of the appointment. In the summary in 9. 2.5, it says should the dismissal be confirmed by the Labour Court, the Public Protector shall review the appointment which review may include summary termination of employment. Clause 10 puts you on probation and then paragraph 14 on 1464 is the confidentiality clause: “By accepting the offer of employment you acknowledge and agree that you will not during the course of your employment or thereafter, except by the consent of the employee as defined by law in the performance of your duties, disclose confidential information relating to the business of the employee, including but not limited to client lists, trade secrets, client details and pricing structures". You see there? Slightly not appropriate in the sense that you didn't really get involved in pricing structures and client details. At the end of this, you accepted this offer. Correct?
Mr Mahlangu: Yes.
Adv Bawa: And then at the near end of that period, you then concluded a fixed term contract with the Public Protector which was for the remaining period from 1 August 2019 until the end of term roughly the beginning of April 2027, or the end of the financial year. I think it was a few months before her end of term and you were asked to be the accounting officer and to provide support to both the Public Protector and the Deputy Public Protector.
Adv Bawa: Alright, so back to your affidavit at page 2721. There were various court cases going on when you joined the PPSA and there were other court cases that commenced during your tenure. Were you involved in any litigation decision making or strategic decisions in relation to litigation?
Mr Mahlangu: No.
Adv Bawa: Were you involved in the selection of any particular attorney or advocate for any particular case?
Mr Mahlangu: No. But maybe that needs to be explained. What administratively would happen if the resources of the organisations were going to be used, I would be informed in the form of a memo, which I needed to approve. The motivation will have been documented in the memo that comes to me. So it is part of supporting the core business.
Adv Bawa: So there will be a memo for instance on the appointment of ‘x’ attorneys and you will be informed that it was for that case, probably by the Legal Adviser, and you would then sign off on the expenditure.
Mr Mahlangu: Yes, that is right.
Adv Bawa: At the time when you joined the PPSA, the Senior Manager: Legal Services was Mr Nemasisi. Correct?
Mr Mahlangu: Yes. It was Mr Nemasisi.
Adv Bawa: And he then resigned and was replaced by Mr Alfred Mahlangu.
Mr Mahlangu: Yes.
Adv Bawa: A public furore arose about your appointment to the Public Protector's Office, because of the circumstances of your dismissal from the Department, correct?
Mr Mahlangu: Yes. When we were explaining the charges and also the prohibition; but there were some people who felt that was still not enough – that I was eligible. But I mean, there was nothing that prohibited me at that time from joining the Public Protector.
Adv Bawa: And you had made a full disclosure at the time of your interview, and you are completely qualified to take on the job.
Mr Mahlangu: Yes.
Adv Bawa: So you aware at the time when you applied for the job that you would require security clearance review. Did the advertisement indicate that you required top secret security clearance?
Mr Mahlangu: Just like any other government department or parastatal, the advert referred to the requirement that you will be expected, after a certain number of months, to obtain a security clearance. Then, later, when in the organisation, that's when they specify which kind of security clearance they need, depending on your position; but they don't normally do that in the advert, i.e. Say whether it is the top or another level of security clearance. You will only know once you sign the contract. They will then direct you to which kind of security clearance they desire.
Adv Bawa: And you were informed at the time that you did the application of the need for security clearance. If you look at page 2746, you subsequently think it is dated 31 October 2017. Right?
Mr Mahlangu: Yes.
Adv Bawa: You were informed that the security clearance investigation had been conducted and because of your prior dismissal, it says in paragraph three, “The State Security Agency cannot at that time make a determination of the security clearance” and it was requested that the appeal process be given a chance to be finalised and the results could then be forwarded to the SSA, immediately after which they would make a determination.
Mr Mahlangu: Yes.
Adv Bawa: So even if you didn't have top secret security clearance, I'm going to presume that until the Labour Court finalised the case, and it was finalised in your favour, I presume, that was the position that prevailed.
Mr Mahlangu: SSA did not mention whether it had to be in my favour or not; they just said, “Let's allow it to be concluded, then we can reconsider”.
Adv Bawa: If the Labour Court had dismissed your application, and your top secret security clearance was refused, you then wouldn't have been eligible for employment in the Public Protector Office.
Mr Mahlangu: Technically, it says so.
Adv Bawa: Because it was a condition of the Public Protector’s employment irrespective. Which meetings at the Public Protector's Office did you attend?
Chairperson: I see your document is upside down on the screen. Proceed.
Adv Bawa: I asked you which meetings within the organisation did you attend?
Mr Mahlangu: We had I think there were three of them. It was an Exco where it would be the Public Protector and the Deputy Public Protector and myself; then there would be another level including executive management teams that will involve the heads of investigations, legal and the chief financial officer; and a separate one that was mainly about case management, which is called a Dashboard.
Adv Bawa: The dashboard meetings about case management related to the various investigations. Correct?
Mr Mahlangu: Dashboard is basically where they give stock of where they are. They do basically not discuss the content of the investigations, but the resources that they will need for them to finalise their cases, so that, administratively, we can ensure that the necessary tools of the trade are there for them.
Adv Bawa: So you would provide the administrative support, the finance person would deal with financial and procurement matters and the legal person would deal with legal matters. Was there a COO when you were there?
Mr Mahlangu: In my first few months there was an acting COO and then later we appointed Ms Basani Baloyi as the COO.
Adv Bawa: What was the role of the COO?
Mr Mahlangu: The COO was basically the head of the investigations. All the executive managers of investigators reported to her. She would be the one making reports at executive management meetings about the performance of those managers.
Adv Bawa: If the executive managers failed to perform any of the responsibilities or fell short, would they then answer to the COO?
Mr Mahlangu: Yes.
Adv Bawa: I'm going to take you to some of the individual cases, which emanate from charge four. Let's start with that of Mr Samuel. This issue came to your attention because of a summons that had been issued against the PPSA for an amount of R350 000 emanating from an altercation that occurred when Mr Samuel was at the Limpopo office. At the time the information available to you was that he had paid an admission of guilt fine resulting from the altercation. Yes?
Mr Mahlangu: Yes.
Adv Bawa: How did it come to your attention? And when?
Mr Mahlangu: I do not remember the exact time, but in your finance reports, you will be given the status of the budget, and then you will be told about liabilities that needs to be addressed. Let me put it like this: just like any other government department, in the PPSA one of the biggest problems was to do with budget constraints. So we had serious cost-containing measures, and one of the issues that we needed to do was to examine our books to see what are the things that are affordable, what are the things that are not affordable. Then later in the process, we picked up that we've got other liabilities that cannot be explained. But maybe I'll talk to that later. Maybe just to be specific on your case, Legal Services brought to our attention that we were being sued for R350 000. We started asking the question, ‘but what is it for’? And then it turned out that it was a matter from 2011 involving one of our officials. We asked for a report about how was the matter had been handled by people who were there before us. There was no tangible documentation or information that talked to how they handled the matter. So it was basically a word of mouth explanation that the matter was reported to the organisation, Mr Samuel had paid the fine, and that's where it ended. But it couldn't just be like that because in terms of the PFMA, the accounting officer has a responsibility to ensure that there is no expenditure that is unexplained, or in a matter where there are allegations within the organisation that there is consequence management. I had to take a decision. I said, “If you lose the case of the R350 000, how am I going to justify the payment. The best thing was to subject Mr Samuel to a disciplinary process because there was no prior record of how the matter was handled. So it is like the people who were there were very lax in dealing with this matter; they could have just kept an audit trail so that whoever comes in can satisfy yourself that this matter was dealt with by so and so and Mr Samuel’ punishment was administered and there was consequence management. So I subjected Mr Samuel to the disciplinary process just to ensure that the customer will get a proper advice about how best to deal with this.
Adv Bawa: Mr Mahlangu, you only served at the Public Protector's Office until the end of December 2019.
Mr Mahlangu: No, that is not so.
Adv Bawa: You resigned from your position as CEO with effect from 1 January 2020 and the charges were only brought against Mr Samuel after February 2020. So that was after you had left.
Mr Mahlangu: You maybe just check properly because I know that we put charges against Mr Samuel, but the first charge which relates to the assault, was done during my time. It might have been signed then. But it was done in my time because it came to my attention and I had to deal with it. If there is any charge that was cited thereafter, it could be another charge.
Adv Bawa: He was charged in one proceedings, everything together. He was not charged separately for the assault. In fact, the assault was part and parcel of the other charges after you had left. There was no disciplinary proceedings during your tenure. That was what struck me as that was part of Mr Samuel complaint; that the charge of assault was actually only brought against him after he had written the letter to the Speaker. Although there had been an investigation, and the matter had been raised with him by HR, no charge was discussed prior to the actual charge sheet, which only arrives after his letter to the Speaker. I think you had left by then.
Mr Mahlangu: Let me not dispute what the evidence leader is saying, but what is of importance is that when the assault case emerged, I was there, and I issued the instruction. Whether at that time, the charge sheet was ready when I was still there, or after I left is another thing. We can verify with people who are still in the organisation, but the matter was brought up during my tenure.
Adv Bawa: I'm not disputing that Mr Mahlangu. You didn't speak with Mr Samuel at all.
Mr Mahlangu: No, I have never spoken to Mr Samuel.
Adv Bawa: Who did Mr Samuel report to at that stage?
Mr Mahlangu: At the time, I think it was Basani Baloyi.
Adv Bawa: Because he was a provincial representative, would he have answered to the Executive Manager or to the COO?
Mr Mahlangu: That was Basani or Ndou, but whoever was in charge was also accountable to me. I could have spoken to either one about it but the driver of the charges was Legal Services.
Adv Bawa: Legal Services. There will be evidence of this later, but I think you do have knowledge of this. There was nothing in his HR file indicating any misconduct on his part. Correct?
Mr Mahlangu: Chairperson, could this be subject for verification because I think I played a role?
Adv Bawa: So you didn't check his HR file?
Mr Mahlangu: No, I didn't check it. I asked for information and they could not give me anything that was convincing.
Adv Bawa: And from whom did you get information?
Mr Mahlangu : From Mr Gumbi.
Adv Bawa: Gumbi Tyelela, Senior Manager, Human Resources. So we'll flag that for when he comes to give evidence. So the only information you obtained was from him.
Mr Mahlangu: No, remember your earlier question, to which I responded that it emerged from the Legal Services because all litigations are channelled to Legal Services. Then, after it came from the Legal Services, the first thing that you do as an accounting officer, is you ask HR to give you a report about how this measure was handled previously, but the report that came from Gumbi was not convincing. So I had to start my own disciplinary process in order to correct this.
Adv Bawa: Now, if I take you to 23.2 of your affidavit, page 2724. You say, to the best of your recollection, you were not apprised of any steps having previously been taken against Mr Samuel regarding the assault charge and conviction, nor it having been discussed and resolved by the previous Public Protector Exco as alleged by Mr Samuel in his affidavit to the Speaker. Nothing was put before you to suggest that the matter had already been dealt with by the relevant authorities in the PPSA.
Mr Mahlangu: Correct. This is when the problem started, because there was no proof that the necessary steps to correct the matter had been taken.
Adv Bawa: But did you endeavour to get out of your predecessor, Sir, who had been the CEO at the PPSA at that stage?
Mr Mahlangu: Well, then, because there were people in the organisation, especially the HR, on whom I relied, so I didn't find it necessary, nor did it come to my mind that I should call people who had left the organisation to obtain the information. All organisations keep information so that people can easily access information about the organisation. So there was no need for me to contact anyone else.
Adv Bawa: But you can't discount the fact that the matter was dealt with internally at the time?
Mr Mahlangu: I would not argue that.
Adv Bawa: It may well be that it was recorded in the meetings or whatever exco existed at the time but it just wasn't made available to you. During your tenure, the Manager of Security, Mr Baldwin Neshunzhi, was placed on suspension relating to the leakage of documentation or information that had been received from the Office of the President. Why was he put on suspension?
Mr Mahlangu: When investigating activities in his office, I felt that maybe he should just take a step back until we had concluded the investigation.
Adv Bawa: That was the position adopted with other employees as well. They were also placed on suspension and then the investigation ensued. We'll come back to that in a moment. Now, Mr Mahlangu, as it turned out, in that investigation on the leak, Mr Neshunzhi was exonerated, and he then returned to office. Correct?
Mr Mahlangu: Correct. I don't know how other people perceive a disciplinary process but to me, a disciplinary process is not to say that you are guilty. It is a process for us to satisfy ourselves that either something has been done wrong or not. Then, if it turns out that you are innocent, you will come back to work and that was the case with Mr Neshunzhi. It was never the case that you would definitely be subjected to a disciplinary process and so you should expect the worst as you will be fired after such a process. No, it was just a fact finding mission. Later it turns out that he's got his weaknesses, but he does not want to lose his job. That was why he came back to work.
Adv Bawa: You accept that the disciplinary process you describe requires an engagement with the employee as part of that process.
Mr Mahlangu: Yes.
Adv Bawa: There was an issue around the same time relating to the leakage of the information that you were not in possession of a security clearance documentation and this too was investigated by HR together with Legal Services and a decision was taken that an external consultant would come in to conduct the investigation and provide a report to the Public Protector.
Mr Mahlangu: IRS, correct.
Adv Bawa: I'm going to come to that report in a moment. I just want to take you through the other persons and then I'm going to come to this report. At the time of your employment, and linked to this leakage of information, the disciplinary processes in relation Mr Kekana arose. That related to a disclosure of information pertaining to, inter alia, documents emanating from the Minister of Finance as well as documentation pertaining to a trip that you are undertaking together with the Public Protector. Correct?
Mr Mahlangu: Yes.
Adv Bawa: Regarding the details of those travel authorisations, it appears, in an email, that the personal assistant in your office and the PA of the Public Protector were left to sort out the travel arrangements and then in respect of preparing those documents, which was for an International Association of Ombudsman meeting that was to take place in Rwanda, the document had incorrectly reflected the purpose of the trip and that document then came to find its way into the hands of Mr Kekana through an email communication. You did you go on that trip?
Mr Mahlangu: Yes. Let's put a context so that Members understand it. From time to time, Public Protector will have international engagements. At that time, she was the President of a women's organisation in Africa. So we had made the trip to present the Annual Report in Cape Town, then the next thing would be to go to Rwanda but the PA instead of doing her job, just merely cut and paste the documentation. My PA sent the requisition and it went, by mistake, to the wrong guy, who was a colleague of my PA, but instead of just saying she had sent the wrong document, he took it upon himself to go through the information and then started making allegations, saying that he had intercepted information whereby Mr Mahlangu was lying about a trip to Rwanda, instead of Cape Town. So that was how that transpired.
Adv Bawa: There was the issue arising in relation to Mr Isaac Matlawe. Your first encounter with him was at the meeting where the Public Protector introduced you to the staff at the PPSA. What transpired at that meeting?
Mr Mahlangu: When I was introduced to the staff, the Public Protector introduced me, shared my background about who I am and what my responsibilities were and then later, I was given the opportunity to explain my experience and how best I was going to take the organisation forwards, and then later it was a question and answers. Mr Matlawe was one of the people who raised their hand and asked a question, but he was very upfront in what he spoke about. Actually, I think a week before I arrived, there had been a City Press article that there was a furore over my appointment, and then the Public Protector explained the situation and the conditions upon which I was appointed as well as the expectations of the organisation, especially in relation to the court case, as indicated in my contract, that is, if the case did not go my way, the contract would be terminated immediately. We all accepted that there was an issue and Mr Matlawe would have to deal with it. Mr Matlawe was a representative of the PSA, which is the union. Then later, I realised that 'but this comes naturally' so there was never any issue and we just kept it in the organisation together.
Adv Bawa: Mr Matlawe was subsequently also implicated in the leakage of confidential documentation. Correct?
Mr Mahlangu: There's a step that you are jumping, but I can confirm that then. From time to time, the Public Protector would have what we call outreach programmes in which she would visit the different provinces to take stock of their performance, how they are handling complaints, and some communities would attend and voice their unhappiness about the slowness of the Office, or how their complaints are not attended to and all that stuff. In one meeting, I think it was in the Free State and Mr Matlawe was also present when we're meeting the management team of the Free State office. Out of the blue, when we were discussing the state of the Office, then he started repeating the very same things that he had said, when I was first introduced to the organisation. Again, it never became personal so I just accepted it again – that is to say he's supposed to be vocal because that is how they operate within their movements, especially the Public Service Association. So we just let the matter go away.
Adv Bawa: And continue.
Mr Mahlangu: Okay. Now, I turn to number 28, which is a link to the investigation of the Unit of Mr Neshunzhi, there was also negative publicity about the Public Protector giving information to the public about the complainants or people that were being investigated. I think in particular, the section 7(9) reports because the information on section 7(9) was confidential but because of the internet, the information was all over the show. As an accounting officer, I had to put in some measures to find the source of the leaks. Of course the source of these leakages had to be found and then we would have to bring in external people to investigate – there might be a need to take your computers, your gadgets and other things. I'm specifying this because it was all over the news that people who were unknown would be going through their computers, etc. They said they would have the people’s status and all that stuff. But it was part of the investigation. They couldn't have concluded the investigation if they didn't go through that process. The gist of the matter is that later it turns out that the sharing of unauthorized information, some said specifically about the President but the information that come up there was that information was shared between Mr Kekana and Mr Matlawe. So that led to the two being charged; this had nothing to do with what they had said. I wouldn't want to get into the issues that they mentioned as this is the correlation of the relationship between a particular investigation and them being charged. Here I was just doing my pure administrative work, unless they want to come and prove differently, but they've already spoken and I have listened. We brought people in from outside to investigate the leakage of information and that was what they found. So it has nothing to do with me being vindictive.
Adv Bawa: Mr Matlawe, however, left the employ of the PPSA to join the bar as an advocate prior to his disciplinary proceedings running to fruition. Correct?
Mr Mahlangu: Mr Matlawe left the employment of the Public Protector but I cannot say where he went.
Adv Bawa: So you are not aware of a letter that had been addressed to the Bar Council?
Mr Mahlangu: No.
Adv Bawa: You didn't send such a letter?
Mr Mahlangu: No.
Adv Bawa: And you have no knowledge of such a letter?
Mr Mahlangu: No.
Adv Bawa: Then the other disciplinary matter related to Ms Ponatshego Mogaladi, Mr Abongile Madiba and Ms Lesedi Sekele were also the cited in the fourth complaint. This is related to what is described as negligence in respect of the preparation of a Rule 53 record in the matter of the Financial Sector Conduct Authority (FSCA) matter involving Adv Tshidi. Correct?
Mr Mahlangu : Yes.
Adv Bawa: In respect of an incomplete record. How did this come to your attention?
Mr Mahlangu: Again, according to my recollection, this was one of those matters whereby the Public Protector was threatened with personal costs. Because every time, apparently, the complainant would insist that he had provided all the requested information. But within the organisation, the investigators, in particular, Carina and Lesedi, insisted also that they had never received the necessary documentation for them to see whether there's a case or no case in the matter. But after some time, when we're busy with the filing in all the offices, there was a confession that they found the information that this complainant had sent, thereafter compromising the organisation. It came to my attention when it was discussed in Dashboard that they had confessed to finding that documentation; then another process started.
Adv Bawa: But there was no disciplinary process taken against the employee who gave evidence, Ms Carina van Eeden?
Mr Mahlangu: Yes. Maybe if you look around the hierarchy of the organisation and how disciplinary process are conducted. At my desk I dealt with a particular executive team who then dealt with the lower one and so on until it gets to the real culprit. Remember, I explained how I view disciplinary processes. Mine was to deal with those that I have close proximity to in terms of the hierarchy, which was Ms Ponatshego Mogaladi, Mr Abongile Madiba and Ms Lesedi Sekele. It was for them to prove to the organisation that was not of their making, but they were misled by their junior. Then we'll take it from there. I do not know they have done that, because I left at the charge stage. So when the disciplinary hearing was started, I was not there.
Adv Bawa: So it wasn't a case that there was a dereliction of duty, specifically in respect of a case that came to your attention.
Mr Mahlangu: But if you are their manager, and your subordinates do not do their job, it can be dereliction of duty, because it was up to them to ensure that they got that information and found out how the information came from the complainant to the organisation and where the information could have disappeared to. But they couldn't get that information and it turns out that the information is lying somewhere with their junior. It becomes their fault because they failed to manage.
Adv Bawa: As I understand the disciplinary hierarchy, you dealt with senior management, and senior management would have to deal with those below them who reported to them, except in the case of Mr Samuel, which went directly to you.
Mr Mahlangu: No, it didn't go directly to me. The Mr Samuel issue came from Legal Services. It went to HR to provide the records. Then, remember, we said we parked the effect of saying who charged him and come back to that later. But instead, there's nothing unique in Mr Samuel case compared to other disciplinary cases.
Adv Bawa: Mr Mahlangu, I must put this to you because both Ms Baloyi and Mr Matlawe are going to come and give evidence at some point and I do not want the committee saying that we should have asked Mr Mahlangu these questions. I'm going to show you some of the propositions that emanate from the court papers of Ms Baloyi. She was employed as the COO for a probationary period of six months, correct?
Mr Mahlangu: Yes.
Adv Bawa: She answered in part to you and in part to the Public Protector. Correct? And you then had what you called a review meeting at eight months, not six months due to practicalities and you assessed that she was not performing and her employment was terminated.
Mr Mahlangu: That is correct.
Adv Bawa: We know that the case was then taken on review. That went right up to the Constitutional Court on a procedural matter and the Constitutional Court ruled in her favour. The matter is now at the High Court. Those events occurred after you left the Public Protector's Office. Chairperson, I could do this after the tea break, and then we can put it on the screen.
Chairperson: That's fine. We will take tea break.
Chairperson: Adv Bawa to begin the session.
Adv Bawa: I am going to put up on the screen a couple of paragraphs in the affidavit of Ms Baloyi to give you an opportunity to comment. Ms Baloyi has not yet given evidence. The matter is still pending in court. We are aware of that. So if you wish to answer in general terms, then so be it. I want to take you to paragraph 20. I think you and she are agreed that there is no role for the CEO in the process of investigations and you are not concerned with the merits of investigations at all. Would you agree with that?
Mr Mahlangu: Yes.
Adv Bawa: She makes certain complaints against you in the affidavit and I'll put them in general terms because of this. One that you interfered in investigations, even though your role as CEO meant that you played no part in investigations, and in particular, she mentions an investigation into the Minister who you answered to in the Department of Rural Development and Land Reform, Minister Nkwinti. Any comment?
Mr Mahlangu: Chairperson, I do not know if the evidence leader cannot find it but there are two issues here. I do not know if the evidence leader can find the specific sentences because in my study of these documents, I came across the exact sentences so maybe we should zoom into them. So that is not so general.
Adv Bawa: Let us just do that. I put it as a general question, because I thought you would not want to answer specific allegations.
Mr Mahlangu: Once I see them, I shall decide whether or not to answer.
Chairperson: That is fair.
Adv Bawa: Paragraph 44 headed: Nkwinti Investigation. These are the High Court papers, not the Constitutional Court ones. Let us go to 42 so we have a context. "Mr Mahlangu was serving as the CEO. He was charged with misconduct and I attach a copy. He was subsequently employed after sending his dismissal, and she says it is for dishonesty, but we have covered that. Paragraph 44: I received the draft reports from the senior investigator but the chief investigator said that the report would have to be done differently. The CEO", you were the CEO at the time, "came to me and asked me why I was mistreating the senior investigator. He demanded that I exclude references to the draft report and other relevant information. I was also disturbed that he also raised the matter with the chief investigator and the executive manager. I viewed his conduct as a classic case of interference given that he was conflicted. Based on this experience, I convened the think tank to review the report. The CEO believed my conduct was designed to embarrass him. However, this was untrue. I was merely doing my job in enriching the content of the report. I've convened similar meetings for other reports, such as the Mpumalanga Premier’s Vehicle Report, the Mandela Memorial and the Free State website and I have no intention to embarrass him". Paragraph 47: "As I explained above, the CEO is not supposed to be involved in investigations. It was highly unusual and improper for him to seek to be involved in an investigation that implicated him.
Mr Mahlangu: I can go from para 40. I shall go one by one so that I do not give a blanket response of no comment. 40 is true. That is how events unfolded. Para 41: Also for that one, it is the next natural process that the department took after the allegations surfaced. Para 42: We spoke at length; we even went through the charges. So yes, that was how it unfolded. Para 43: We spoke about that earlier. Para 44: I do not know about it, so no comment. Para 45: No comment. Para 46: No comment. I do not know about it. Para 47: She is reiterating that I am not supposed to be involved and, yes, I am not involved. So all the above that is speaking about me asking this and that, I do not agree with it.
Adv Bawa: I only took you up to para 47. In paragraph 24, she says that "At some point, I believe I was seen as a stumbling block at the office. The CEO, in fact, once informed me that he would get rid of me, so I say that some reasons are being improperly used to get rid of me, which I believe is a mere pretext". Right. What she sets out in 47 onwards, emanates from paragraph 24. Any comment?
Mr Mahlangu: I do not remember such a conversation.
Adv Bawa: Mr Mahlangu, before you meet with her for her eight month review, did you raise any aspects about failure to perform or any incompetence? Any misconduct? Did you raise any of that with her prior to that meeting?
Mr Mahlangu: Yes. Remember, we attended several meetings with her. I think I did not mention all of them, because I cannot remember all the names, but in particular, the Dashboard and the Exco where we met, has been discussed. Then there would be an exchange of views between herself and the Public Protector. Remember, when I am sitting there, I need to identify the gaps and how best to provide support to the units. Fom time to time, the executive authority would raise issues about the investigations, how they're performing and all that stuff and then those discussion would inform our discussions when we discussed her unit.
Adv Bawa: Do you recall ever sending her anything in writing?
Mr Mahlangu: Around performance, no. I do not remember sending anything around performance as we would have our meetings where we would agree on things and then she would go and do exactly what we discussed or go and try to improve on the areas that I had picked up.
Adv Bawa: I come back to Mr Isaac Matlawe. His affidavit is not yet before the Committee, but I am going to broadly put the allegation to you. He was served with a letter of suspension on 4 December 2018 after he had already resigned. His resignation was handed in on 1 December and on 4 December, he received the letter of suspension.
Mr Mahlangu: Well, the chronological order of the dates, I may not be sure about it, but I can confirm that we sent a letter of a disciplinary process, but whether he had resigned, I would not know.
Adv Bawa: So you are not sure whether he had already resigned before you sent the letter of suspension
Mr Mahlangu: If he had resigned, I had not been informed.
Adv Bawa: On the basis that his letter of suspension is actually served on him after he had resigned, he regarded the proceedings to be pursued as a form of persecution to cause him some distress. Do you want to comment on that?
Mr Mahlangu: Let us take a look at what I explained earlier. In an organisation, you follow a certain process; in government, under normal circumstances, if there is an issue, you refer it to the relevant unit. In this case, it was an HR matter. If there's a complaint about a certain Mr Mahlangu, you will inform HR to say there is this complaint: “Can you please generate a memo or investigate and then advise me exactly what needs to be done?” I'll assume that in the case of Matlawe, maybe he knew that there was a memo coming his way, or a letter to suspend him, and then he decided to quickly resign. But now that is where HR comes in: HR or the first custodian of receiving the letter of resignation. They might come to me and say, “This is just an academic exercise; that person has already resigned. So you may want to dig deeper, to say, why would HR, whoever is involved in this, still process the suspension of that person who has resigned?
Adv Bawa: That is precisely my difficulty, Mr Mahlangu. Let me say, being part of the profession, if he had commenced pupillage on 1 January, then he would have been accepted into that programme months prior to anything that may have happened in December or, even, November. I am putting that to you because you raised the issue that, could have resigned, knowing that disciplinary charges were coming. And that is understandable because it does happen. But in the context of Mr Matlawe, he was already accepted into a programme and it is only fair I put that to you. He then goes on that he was not given sufficient notice of the disciplinary proceedings as the charges were served on him on 18 December, for the disciplinary inquiry to commence on 21 December.
Mr Mahlangu: Okay, again, once I've authorised the investigation, I would not know, going forward, how Legal Services and HR handled those arrangements. But under normal circumstances, whoever is charged, will have the opportunity to present these issues to chairperson of the disciplinary process. The person can tell whoever was chairing the disciplinary process about how the organisation was treating him, etc. The chairperson would pronounce on his complaint.
Adv Bawa: I think his objection was that he was entitled to five days’ notice, but he got a notice on the 18th and it was set down for 21 December and I think the offices were to close shortly thereafter.
Mr Mahlangu: I do not remember all those [details] but I am saying that he had a recourse. Those were the things that he was supposed to put to chairperson of the disciplinary process and the chairperson was supposed to solve the problem, if anything needed to be corrected. I mean, the organisation was supposed to redo the whole thing, so that the process was regular.
Adv Bawa: So, Mr Matlawe contested that the disciplinary process against him was pursued with zeal and motivated with malice, for he had already resigned and he was serving notice to the end of December, but he was being hauled before a disciplinary inquiry on 21 December, when the offices had already been closed for the holidays, and then again on 27 December, to which date it had been postponed after he fell ill. Do you wish to comment on that?
Mr Mahlangu: No, what zeal? We spoke at length about Matlawe’s conduct, and how the accounting officer just turned a blind eye about his conduct up until later when he scored his own goal during the investigation of the leak of information and then got charged There was never zeal, but there was a process that was followed up until he was found to have violated certain issues within the organisation. So I do not know where the zeal comes in there because processes were followed. There are new issues that he is bringing and I respect what he is saying without any factual information. But the reality is that there was a process that was followed up until charges were brought. We did not just bring up charges from nowhere. Whether the process was regular or irregular once the charges had been brought, I cannot say. The evidence leaders may have to take it up with the organisation and just satisfy themselves why Matlawe was pursued after he had already resigned.
Adv Bawa: I am simply putting to you the allegations made by Mr Matlawe; don't shoot the messenger. I want to take you to the second report that had been done by Diale Mogashoa [Attorneys]. Go to page 1369, paragraph two and it'll tell you about the scope of the investigation. It arose in March 2019, when they were appointed to conduct an independent investigation into Security Management Services Unit and submit a report on the findings and recommendations. They then set out the scope of the mandate which was to investigate the leakage of confidential and sensitive information contained in an email sent to Adv Mkwhabane in December by Mr Matlawe, a former employee and shop steward and to investigate and define the job content for the Security Management Service in the context of management of information security, National Strategic Intelligence Act and systems as well as the PPSA security services policy and propose distinct work plan jobs. Then 2.23, which I do not think materialised, was to represent the PPSA in disciplinary hearings following thereon. They then set out how they conduct the investigation and we're going to skip through the structure limitations and qualifications. They then come to relevant factual background, and they deal with your appointment in paragraph five, where they point out that all successful candidates will have to undergo security clearance, vetting, and competency assessments may be conducted. You agreed with that. From 1 May, you were then appointed on an interim basis with effect from 1 May.
Adv Bawa: Then in paragraph 5.3, he deals with what occurred in the meeting, to which you have already testified that Mr Matlawe raised the concerns of your appointment. Basically, it says that he raised the concerns relating to the appointment of the CEO without a security clearance given that you will be handling sensitive information. The attorneys responded that they were informed that, in response, the Public Protector had indicated that it was for that reason that you were appointed on an interim basis. They then note that your fixed term contract was extended from 1 August 2018 to 31 July 2019, and then Adv Nkobane, in 5.5, received an email from Mr Matlawe entitled ‘Complaint: maladministration and nepotism in the Public Protector’ and it sets out the nub in this email: "That the position of Executive Manager: Stakeholder Management and Customer Services was never advertised and that the incumbent was the sole candidate interviewed for the position and was a friend of the Public Protector; that the former Acting Chief of Staff did not have qualifications; at the expiry of the contract of the former Special Adviser, the Public Protector had instructed the security management to process his application for security clearance; that the CEO had been appointed on a one year contract but was unable to obtain a security clearance due to his pending matter at the Labour Court and his suitability was raised at a staff meeting; and despite cost containment measures announced by the CEO, the Public Protector travelled with the CEO and the former Chief of Staff to Rwanda on business not related to the PPSA business; the CEO’s trip authority indicated that the CEO was attending PPSA strategic planning", and that last sentence was the error that was made in the documentation by the Personal Assistant, "instead of identifying it as AOMA business, she identified this as a PPSA strategic business". I saw the two issues, which Mr Matlawe complained about relating to you, was the fact that you continued in your position, despite having no security clearance and then, despite putting cost containment measures in place, you were travelling overseas with the Public Protector and the former Chief of Staff and you've already explained the context in which you accompanied the Public Protector to Rwanda. Correct?
Mr Mahlangu: Yes.
Adv Bawa: Okay. Then as a consequence of this email, concern was raised in paragraph 5.7 that he had knowledge of confidential information of the Public Protector executives. The CEO addressed a letter to Mr Neshunzhi who was then the Senior Manager of Security Management in terms of which he was advised to look at how that had come about. Correct?
Mr Mahlangu: Yes.
Adv Bawa: Mr Neshunzhi was then suspended, pending the investigation, and was then reinstated afterwards, when he was exonerated by that investigation. Maybe I should stop at 6.7 in the report, because you had alluded to that earlier on. 6.7 refers to the seizure of the computers from various people as part of this investigation. Correct?
Mr Mahlangu: Yes
Adv Bawa: Mr Kekana testified, Mr Mahlangu, that when he got his computer back, certain emails had been wiped off the computer. Do you know anything about that?
Mr Mahlangu: No, he never reported it to me that but I saw it in the media.
Adv Bawa: At that stage, it was Mr Neshunzhi that liaised directly with the State Security Agency to conduct a security meeting on behalf of the PPSA, paragraph 8.1.23. Correct?
Mr Mahlangu: Yes.
Adv Bawa: At 8.3 Mr Neshunzhi indicated that he is the person who goes and collects the security clearance certificates and returns them to the Public Protector’s Office. He would have collected the letter, which is attached to your affidavit and it is the contents of that letter that was in the public domain. So if we go to your evidence, 8.4.6. The investigators also interviewed you. Correct?
Mr Mahlangu: I am now lost.
Adv Bawa: Sorry. I am watching my time. In the course of this investigation, they interviewed you in your capacity as a CEO. In the report, they relayed the information that you provided to them. I want to take you through what was said in 8.4.6 of that account – what you indicated to them regarding your security clearance. They recorded as follows: 'An applicant’s manager is supposed to know the status of the results of the security clearance and communicate the results to the employee'. Mr Neshunzhi is the only person who interacts with SSA. Correct?
Mr Mahlangu: Yes.
Adv Bawa: HR issues the Z204 forms of application for security clearance, but is not involved in the security clearance. He does not believe that senior management was involved in the leak, but does not discount that it may be someone at the junior level. Correct?
Mr Mahlangu: Yes.
Adv Bawa: In 8.4.64, you point out your view on the security clearance that is issued by SSA and that you received a call from SSA about your security clearance. So by the time you got a letter from SSA, you already knew that it had not been issued and you had discussed it with the Public Protector.
Mr Mahlangu: I already knew that it was not approved. Okay, it is fine.
Adv Bawa: And you had a discussion with the Public Protector relating to the outcome of security clearance. You did not know anybody in the organisation that would know this information and you then deal with some of the evidence that came to you. It was pursuant to this that certain recommendations were made in the report
Adv Bawa: 15.11.2 were the recommendations made by this organisation: "On an operational level, the PPSA should also consider reviewing security policies and procedures to ensure practice for controlling weaknesses as identified and that in overhauling the security department to ensure that it meets the needs of the institution". To this end, they suggested that the CEO should appoint a properly qualified and experienced expert on organisational design to determine whether the personnel in that department have the necessary skills, qualifications and capacity to occupy the positions they occupy, and to conduct awareness training on information management. Do you recall whether you had engaged that expert?
Mr Mahlangu : I don’t recall if we engaged that expert, but I know the 15.11.3 was done.
Adv Bawa: Okay in respect of 15.11.2, subsequent to this report, Mr Neshunzhi was moved from his position as Senior Management Security into Customer Services. Why was that done?
Mr Mahlangu: I just felt that with this record we cannot keep him in that position, but that we take him to another position. Then I was advised that looking at his CV and skills, he would be best suited to the Customer Relations Department. That was communicated to him in person, and he was moved as such. We had to advertise the position of the Security Manager.
Adv Bawa: So that position was then subsequently advertised and there were applicants for that post. Just to round it off. If I go to page 1335, you were part of that interview panel. In order to do those interviews, you had to fill out a disclosure of personal knowledge and relationships with applicants appearing on the shortlist. Correct?
Mr Mahlangu: It is standard procedure for all interviews.
Adv Bawa: You indicated that you knew more than one applicant, including the person who was …
Mr Mahlangu: It was Jonathan Malatjie, an internal candidate, Mr Amos Skosana and Mr Vusi Dlamini.
Adv Bawa: I cannot read your handwriting.
Mr Mahlangu: Yeah, look at the posts - it was two interviews combined. It was for a provincial representative in the Eastern Cape, and also for the Senior Manager: Security.
Adv Bawa: And there was no impediment to your knowledge, and if you go down to the bottom, to the comments. I cannot read that. Can you just read it to us?
Mr Mahlangu: In the comments, you have to state the nature of your knowledge about the people that you know. Vusi Dlamini was the current PR person in the Gauteng office, so he was already my colleague, and then Mr Amos Skosana is from my previous employment, which was the Department of Rural Development and Land Reform. Mr Jonathan Malatjie was currently within the security unit as a security officer in the PPSA.
Adv Bawa: Then my final question. You tendered your resignation on 23 December 2019. Why did you resign?
Mr Mahlangu: It was a personal matter and more opportunities.
Adv Bawa: What position have you occupied since then?
Mr Mahlangu: I only occupy one position, that of a non-executive board member for Nkangala Economic Development Agency.
Adv Bawa: And your termination was accepted by the Public Protector.
Chairperson: We are now going to proceed to cross examination by the Public Protector’s legal team, Adv Shabalala.
Cross examination of Mr Mahlangu
Adv Bright Shabalala: Mr Mahlangu, I understand that you were assisted by the evidence leaders to compile your affidavit? So the affidavit constitutes your evidence?
Mr Mahlangu: Yes.
Adv Shabalala: Initially you were reluctant to testify.
Mr Mahlangu: Yes.
Adv Shabalala: You do seem to have somersaulted now and changed your position.
Mr Mahlangu: I had to follow the proceedings. I just felt that it will be an injustice for me not to present myself in person.
Adv Shabalala: Initially, what was the reason why you were not keen to testify?
Mr Mahlangu: From the first few affidavits that I read, I just felt that I could respond by providing written responses, but later I picked up that I may want to articulate some of the things and put them into context, something that is difficult to do in writing only.
Adv Shabalala: If you say you were assisted by the evidence leaders to compile your affidavit, in what way did they assist you?
Mr Mahlangu: Basically, they interviewed me, they asked questions and then from your responses, they document the information that you provide to them.
Adv Shabalala: So the document was drafted by the evidence leaders?
Mr Mahlangu: Yes, they interview, and then they take a statement, which they contextualise, and then confirm with you if it is a true recollection of what you have provided to them.
Adv Shabalala: But you can own up to this affidavit?
Mr Mahlangu: Yes.
Adv Shabalala: The reason I am asking you is because we seem to have taken our eyes off the ball here. If I may refer you to page 2718. In fact, paragraph three of your affidavit. Can you see that? Do you have it in front of you?
Mr Mahlangu: Yes, I have the document.
Adv Shabalala: Yes, I am going to read into the record, quickly. You say: "I was contacted by the evidence leaders, and informed that there was a motion currently serving before Parliament and that in respect of one of the complaints under the heading chapter four, I was named as a person who had intimidated, harassed and victimised, a number of staff members whilst in the employ of the Public Protector, South Africa. Can you see that?"
Mr Mahlangu: Yes, I can see it.
Adv Shabalala: What is your reading of this paragraph? Because my reading of this is that it only refers to, but it doesn't apply to you, because the impeachment process that is currently underway, is in respect of the Public Protector.
Mr Mahlangu: There were different versions because, when I was reading these and crafting these, but if you go to the complainants’ affidavits, they refer to me as an enforcer. It is somewhere in the document. So I am also surprised they are saying this about me because I thought the entire hearing is about the Public Protector, but I couldn't stand and not be party to this if the rubbish in my name like this sort of tool, to use that language. So I felt that it is my responsibility to come before this committee and present my case against what they are saying about me. So you are right. It is supposed to be about the Public Protector, but one way or the other, I will find my name all over the complainants’ affidavits.
Adv Shabalala: Your evidence is that you are assisted by the evidence leaders to compile this affidavit.
Mr Mahlangu: Obviously to that and say yes, it is.
Adv Shabalala: I'll tell you why. Not again, that point. Again, back? Because I've gone through your affidavit. There is an important point that is missing in your affidavit which falls within the knowledge of the evidence leaders. It could have been an oversight on their part. But it is relevant to this allegation in respect of the charge I am going to take the committee through. You remember that prior to the this National Assembly inquiry in terms of the rules, there was an Independent Panel that compiled a report. Do you know about that? Do you know about the Independent Panel's report?
Mr Mahlangu: I want to respond this way. When I was approached by the evidence leaders, they referred me to a number of documents within the parliamentary website. That is where I pick up the Independent Panel report. I had an opportunity to go through it.
Adv Shabalala: Did you refer to charge four of the report?
Mr Mahlangu: Well, let me give you a longer response. I called the evidence leaders and told them about my problems with the number of pages of information that it was more than 10,000 pages. Then we came to an agreement that I might as well focus, specifically on those documents that are referring to me. Then I narrowed my scope from my discussion with them and I went to exactly where my name was popping up.
Adv Shabalala: You know I am not trying to take advantage of you but it is because this charge is important to my client. As much as you are implicated, how it is phrased shows that they seek to acquire or obtain evidence through you, in order to prove this charge against my client.
Mr Mahlangu: I do not believe that evidence leaders came to me in order to con me. I think we had an open discussion and then I was…for me to be here, I was driven by the desire to clear my name. So in my reading of the charge, I do not think one way or the other, I can implicate the Public Protector, unless you explain further.
Adv Shabalala: I will show that, according to Judge Nkabinde who chaired the Independent Panel, there is no merit in this charge, and it was rejected outright by the panel. Can I flight the portion of the report that deals with this charge?
Mr Mahlangu: I think that will help.
Adv Shabalala: Page 10481, starting from paragraph 191.
Chairperson: There are four contentions there that the PP is making; take us through.
Adv Shabalala: Mr Chair, I am not going to waste time going through the Public Protector’s contention. Let me focus on the Independent Panel's finding which is at 197. We can see that the basis of the complaint, as well as the people's response to the complaint. The panel of three, including Judge Nkabinde, concluded that this is the charge that deals with the intimidation of the staff members on the part of Baloyi. It says: “In the circumstances, we find that the Baloyi matter does not raise prima facie evidence of incompetence or misconduct".
Chairperson: Yes, I follow you.
Adv Shabalala: My submission, Mr Chair, is that this allegation has partly been dealt with by the Independent Panel. But my issue is not only that, because it can still be alive, the issue that I am raising is that it is not contained in Mr Mahlangu's affidavit. That is my issue. My contention is they seem to have been selective when this affidavit was crafted in view of the fact that this evidence relating to Baloyi has been led today. What do you make of that, Mr Mahlangu?
Mr Mahlangu: Okay, maybe let me just go back again to the documentation that was provided to me. The main document was the Independent Panel’s report, and we discussed that with the evidence leaders. Then in our discussion, I even made a comment to say that it looked like some of those things had been dealt with and then they said to me, “No, it will be to your interest and advantage to go through all the documentation, in particular, where you have been mentioned. So I responded to every everything that I felt touched my name, whether the matter has been concluded or not. If there's any blame, I do not know what today’s evidence leaders have to say, but maybe they could have advised me that they had dealt with the Baloyi issue earlier. They said that the matter was before the court and I may want to respond or not respond. I innocently responded to all the issues as they were presented to me.
Adv Shabalala: Yes, can you just bear with me? Can I take you through again paragraph 192 of the same report by the Independent Panel? Can I read it out? It says: “Although it is not for us to decide, they seem to be married in the previous contention, that the basis on which she is held responsible for the conduct of the CEO", they are referring to Mr Mahlangu, "of the Public Protector is not explained. Many, if not most, of the allegations are made against Mahlangu and not the PP.” You remember my earlier submission was that charge four has got nothing to do with you?
Mr Mahlangu: Chairperson, I think I will ask for your guidance in this case, because mine was to cooperate with the evidence leaders. I think I've done that. I’ve provided all information they want. I answered every question that they wanted and I even agreed on the evidence that I provided. So I really do not want to argue with Adv Shabalala.
Chairperson: Adv Shabalala, there's a request that you reposition yourself and be much closer to the microphone so we can hear you properly.
Mr Mahlangu: Can I say something in the meantime; I do not want to dispute what he is saying, but maybe you can give me guidance on how to proceed if the evidence leaders made me respond to issues that have already been dealt with.
Chairperson: Well, let us go from here and see what questions he asks.
Adv Shabalala: Mr Mahlangu, I am not trying to criticise you. The only point I am making is that your affidavit is incomplete and I am trying to highlight the shortcomings in your affidavit. That is the only point that I am trying to make here. I am not here to criticise you
Chairperson: That is very clear, go ahead, Mr Mahlangu.
Mr Mahlangu: In order not to delay the Committee or to dispute what Adv Shabalala is saying, I will concede but I'll also made a disclaimer that I followed the guidance of the evidence leaders in my responses.
Adv Shabalala: Thank you Mr Mahlangu. Still on this point, because the Public Protector is exonerated only insofar as Baloyi is concerned. I would like to deal with the legislative framework which defines the functions of the Public Protector, as well as those of the accounting officer. I do not want to be accused of disrespecting this Committee, Mr Chairperson. Can I refer this Committee to Bundle C, page 37?
Adv Shabalala: I was waiting for the document to flight but I can take the house through in the meantime.
Adv Mayosi: In order to find it and flight it we have to know what item number it is in bundle.
Adv Shabalala: I am referring to section 182 of the Constitution. It deals with the functions of the Public Protector. I am not going to go through the whole section, but I want to highlight the core functions of the Public Protector. I am doing this exercise in the context of demonstrating that Mr Mahlangu, since he was employed as a CEO, could not have performed the functions of the Public Protector or vice versa, the Public Protector could not have performed the functions of the CEO, as they are precluded in terms of the relevant Acts. As you may know members of the public service can only perform the functions that they are empowered to perform in terms of the legal instruments, which could be either the Constitution, the subsidiary legislation or the statute. In terms of this section, there are three core functions of the Public Protector: 1) is to investigate any conduct in the state affairs, 2) to report on that conduct…
Chairperson: Yes, I follow you. You're now on subsection (b).
Adv Shabalala: I’m now on subsection (c)(3) to take appropriate remedial action. These are the core functions of the Public Protector. I would like to refer this House to Bundle C, page 66. Then I'd like to refer you to section 3 of the Act. In particular 3(1)(b) which states that the Public Protector shall, subject to his or her discretion and control in the performance of his or her functions under this Act and the Constitution be assisted by a) Deputy Public Protector, b) a suitably qualified and experienced person as Chief Administrative Officer appointed by the Public Protector or seconded in terms of subsection (12) for the purpose of assisting the Public Protector in the performance of all financial, administrative and clerical functions pertaining to the office of the Public Protector". Mr Mahlangu, are you familiar with these legal instruments?
Mr Mahlangu: Yes.
Adv Shabalala: As appears you, in your capacity as the chief executive, were located under this section 3(1)(b). Are you familiar with this?
Mr Mahlangu: Yes.
Adv Shabalala: So you only performed these functions that are stated here?
Mr Mahlangu: Yes.
Adv Shabalala: And the disciplinary processes or proceedings? Would I be wrong if I submitted they fell under your authority in terms of the Act?
Mr Mahlangu: No, you're not wrong.
Adv Shabalala: And the Public Protector's functions are limited to the three core functions that I have referred you to, so she must stay in her lane and you must stay in your lane all the time?
Mr Mahlangu: Yes.
Adv Shabalala: I just want to demonstrate that the powers are clearly defined here. You, being the CEO, do you also become accounting officer?
Mr Mahlangu: Yes.
Adv Shabalala: And the Public Protector is what? An executive authority?
Mr Mahlangu: She is the executive authority, yes.
Adv Shabalala: Can you quickly take us through the organogram?
Mr Mahlangu: It would be myself as the accounting officer, also called the Chief Administrative Officer, which is the CEO. Then, if you discount your immediate staff like the PA, you get a straight line that goes to the COO and another straight line that goes to the Chief Financial Officer. Then I think even Legal Services has a straight line to the Chief Administrative Officer.
Adv Shabalala: Where does HR, Human Resource, fall in the structure?
Mr Mahlangu: Okay, let me just confine myself to the PPSA. Yes, Legal Services, HR, the CFO also had a direct line to the Chief Administrative Officer which is the accounting officer, unlike in other organisations, where HR and Legal Services report to the COO, who then reports to the CEO. Because it is a small organisation, HR and Legal Services also report directly to the CEO.
Adv Shabalala: As the executive authority, the Public Protector does not get involved in the administrative issues?
Mr Mahlangu: Yes.
Adv Shabalala: So all the disciplinary processes were obviously initiated by you or on your instructions?
Mr Mahlangu: By me, or by me instructing HR to execute.
Adv Shabalala: Your evidence is that, in fact, even in terms of the Act, the Public Protector does not get involved.
Mr Mahlangu: Yes. I think we have explained the legislative functions and the Act itself about the Public Protector, so you are right.
Adv Shabalala: It would, in fact, be unlawful if the Public Protector were to get involved in the administrative side. I do not want to waste your time, Mr Mahlangu. I just want us to go back to your affidavit because I have been able to establish the legislative framework. Let us first deal with Mr Samuel.
Adv Shabalala: Yes, I am going to deal with paragraph 23.5. You say: "I do not recall having directly dealt with Mr Samuel in that, given the hierarchy in the office, it would have been dealt with by the then Acting COO, who was either Mr Stoffel Fourie or Mrs Nthoriseng Motsitsi or the newly appointed COO, Ms Basani Baloyi. What do you mean?
Mr Mahlangu: I think the question there was: How did the matter arise of the summons and then I explained that Legal Services brought the matter to my attention, and then I referred the matter to HR, so that I could be brought up to speed about the history of this assault case. So, because the sequence of events is the one thing that I necessarily do not recall, having dealt with him directly. Because what one of the things was that since Mr Samuel was at the Provincial Office in the Free State, he would have reported to whoever, at that time, was the provincial coordinator, which could have been Adv Stoffel Fourie or Mrs Nthoriseng Motsitsi or Ms Basani Baloyi. It is a question of when exactly this thing happened. But I discussed it at length with the evidence leaders, and I thought they would have clarified by now who was in charge at that time, and the one who had direct supervision over Mr Samuel.
Adv Shabalala: The main issue here, which I think we have clarified, which I think you can still remember very well, is that this Mr Samuel issue emanated from Legal Services. We have in our possession here a letter from Mr Nemasisi addressed to the Public Protector on this issue, and the CEO. In fact, we have shared it with the evidence leaders, and we have requested that this document be uploaded. As soon as it is uploaded, I'll be in a position to share it with the Committee. Ah, it is flighted already. Can you see that?
Mr Mahlangu: Yeah. But okay. If I had been provided with this, I would have amended my affidavit.
Adv Shabalala: Can you see that I am trying to help you, Mr Mahlangu? Are you grateful that I am trying to assist you? Can I quickly go to paragraph two of the email, which reads as follows: ‘Any person convicted of crime may be a risk to the organisation, especially when the offence took place at our premises and during office hours. My advice is that disciplinary action must be taken against an employee for putting the organisation into disrepute. If no action is taken against him, it will send a wrong message to them.’
Adv Shabalala: You see, Mr Mahlangu, it doesn't come from you, and it doesn't come from the Public Protector. This is independent advice coming from the Legal Services. So, if anyone accuses you of having been an enforcer for the Public Protector on the basis of this case, you will be in a position to challenge that person and maybe call him or her a liar.
Mr Mahlangu: Correct.
Adv Shabalala: Do you accept my proposition?
Mr Mahlangu: I accept, but not necessarily to call people names.
Adv Shabalala: Can we very quickly deal with Mr Neshunzhi. Go to page 2725 which is part of 24 of your affidavit. Did you take any part in the disciplinary proceedings of Mr Neshunzhi?
Mr Mahlangu: Mr Neshunzhi was never disciplined; it was an investigation but it was a case which was conducted by HR in conjunction with Legal Services and in which I did not take part. I was also interviewed by the investigators.
Adv Shabalala: So you were not directly involved?
Mr Mahlangu: No, I was not directly involved, neither was the Public Protector.
Chairperson: We will pause here.
Chairperson: I hand over to Adv Shabalala. Please continue
Adv Shabalala: We have actually established that the Public Protector and the accounting officer perform separate functions; but the Public Protector holds the accounting officer to account. Would I be wrong to say that sometimes these two arms, just like in government, do converge?
Mr Mahlangu: Yes, they do.
Adv Shabalala: Okay. I understand that in the PPSA, you have something called the strategic document. Can you take us through what the document is about and are both arms involved there?
Mr Mahlangu: One of the important functions of the CEO or the accounting officer is to drive the strategy of the organisation. Then the executive authority will provide the leadership in terms of the mandate, vision and mission of the organisation. Those issues will be documented in what we call a strategic document of the organisation. It outlines functions.
Adv Shabalala: What functions are documented?
Mr Mahlangu: The accounting officer drives the strategy which means that you, with your executive team, develop the operational plans, you do the costing of the operational plans, because you need to factor in the budget. You also develop the function of the human resources, which relates to performance agreements with all your executives, and then you ensure that the agreements are cascaded to their own units. You also come up with the legal strategy, in this case. These, amongst others, will be the key areas that the accounting officer will be engaging in to support the executive authority.
Chairperson: Let us flight the strategic document. I am saying that because the public, who are overseeing us as a Portfolio Committee, need to follow that as well.
Adv Shabalala: Fair point, Chairperson. My colleague here is trying to get the document for me.
Chairperson: No problem. Go ahead.
Adv Shabalala: You were in the employ of the Public Protector for almost two years?
Mr Mahlangu: Yes, I was.
Adv Shabalala: But during that short period, you made meaningful contributions?
Mr Mahlangu: I believe so, with the team.
Adv Shabalala: One of those achievements was that of obtaining a clean audit. Can you tell me prior to that, did the OPP obtain a clean audit?
Mr Mahlangu: When I arrived, the Office did not have a clean audit. Actually, the Office had three critical matters – it was irregular expenditure and some irregular appointments of service providers. I think they had outsourced some investigation reports to some legal firms, but I’ll stay away maybe from mentioning their names, but it turned out that they were appointed irregularly. Then the books were not in good shape. At some point, the Office had a contingent liability of about R14 million that had been there since time immemorial. One of the things that we had to do is address the irregular expenditure. One case was the accommodation in Hillcrest that had been irregularly acquired. We had to go back, looking at disciplinary processes, and we had to dig deep to find who was responsible and why the previous CFO and CEO had approved the irregular procurement of the building. We found the people that had advised those two and then we disciplined them. After that we had to apply for condonation by National Treasury, and the situation was approved. Then we engaged with the two firms that were appointed irregularly and we had to come to a point of deciding whether we were going to pay or not. But the previous issue that we did, we had come up on open tender, so we formalised our legal unit in terms of creating a database, i.e. A panel of legal expertise, to circumvent irregular appointments of lawyers that we bring to the organisation. I think those are the things that we did. It was not an easy process as we had to train people and then at some point we had to discipline people.
Adv Shabalala: So your evidence is that the service providers were appointed without following the legal procurement prescripts?
Mr Mahlangu: Yes, that is what had been inherited in the previous financial year.
Adv Shabalala: Can we then go back to your affidavit, Mr Mahlangu? Okay. Paragraph 26 of the affidavit where you make mention of Mr Kekana? Is Mr Kekana one of the employees that you disciplined?
Mr Mahlangu: Yes, I did discipline Mr Kekana as part of the investigation into the leak mentioned earlier.
Adv Shabalala: What was the charge? The same as with Mr Matlawe?
Mr Mahlangu: The report pointed to both Mr Matlawe and Mr Kekana.
Adv Shabalala: Okay, can we deal with the investigation process? How was it conducted especially in respect of senior employees? Did you utilise services of independent bodies like attorneys?
Mr Mahlangu: I do not remember any disciplinary case that was handled internally. I think all the disciplinary cases were outsourced.
Adv Shabalala: Including the investigations, or only the proceedings?
Mr Mahlangu: Can you quantify that? Are you trying to say disciplinary cases or investigations because I see we are using this interchangeably now?
Adv Shabalala: Okay, I remember you saying that is how the process begins: you will naturally first have the investigation process. If there is a prima facie case, then they will have a disciplinary hearing process.
Mr Mahlangu: Yes. I just wanted you to be clear you are talking about the disciplinary matters, not the investigations that PPSA does as an organisation. Yes, there will be a case and then it will be referred to HR or Legal depending on the nature of the case, and then I will approve the appointment of someone external to look into the case and provide guidance.
Adv Shabalala: Okay, can we be specific then on Kekana? I understand that your evidence is that from the time you joined the Office of the Public Protector, you always used independent people to conduct the investigations, as well as the disciplinary hearings. But I want to be specific here because we are dealing with specific issues. Is it your evidence that the investigation, also in respect of Kekana, was outsourced?
Mr Mahlangu: Yes. But I just want to bring something to your attention. You were not helping me to go to a specific case, but if you are saying Mr Kekana, as it emanated from the leakage of the information investigation, remember, the history of each was a leakage in the office of the Security Manager. But later, it turns out that its pointing to Mr Kekana and Mr Matlawe, and it was done by independent people.
Adv Shabalala: Okay, on the issue of Matlawe, your evidence is that you did not know him prior to coming to the PPSA. What was the relevance of that statement?
Mr Mahlangu: I think there was a question about whether I knew him before I came to PPSA. I had to say, ‘No’, unless maybe there was something else behind the question, but I do not suspect anything. I just provided the responses to say that I did not know him prior to joining the Public Protector South Africa.
Adv Shabalala: Was there an investigation carried out insofar as Matlawe is concerned, before his resignation?
Mr Mahlangu: This is the only investigation that pointed to him. We heard that my letter suspending him came a day or two after he resigned but I do not remember any prior disciplinary action against him.
Adv Shabalala: I am talking about the investigation, not the disciplinary hearing. Was there any investigation that was conducted? In respect of Matlawe?
Mr Mahlangu: No, there was no investigation into Mr Matlawe. The investigation was into the leakage of information in the security unit that later pointed to him.
Adv Shabalala: And he subsequently resigned?
Mr Mahlangu: Yes.
Adv Shabalala: Do you know who carried out the investigation into the linkage of information?
Mr Mahlangu: Was that the company, Diale Mogashoa Attorneys?
Adv Shabalala: Yes, an independent company. You had no influence whatsoever as to how the investigation was conducted?
Mr Mahlangu: Not at all. But I was also interviewed about the workings of the PPSA.
Adv Shabalala: And the PP also had no influence.
Mr Mahlangu: No.
Adv Shabalala: The evidence leaders mentioned that there was a letter that was written to the Bar Council on the conduct of Mr Matlawe. I know this is an unfair proposition to put to you, so you can respond, but I shall not feel offended if you decide not to respond. It is up to you. This issue emerges from the evidence leaders - a letter was written and I can confirm that a letter was indeed written to the Bar Council, complaining about Mr Matlawe’s conduct. In my possession here, I have on the Twitter platform, insults that Mr Matlawe threw at all the members of the Public Protector’s Office, including the Public Protector herself. I do not know if this document has been uploaded, but if indeed it has, I'll request that it be flighted, so that you can quickly have a glance at it.
Adv Bawa: Sorry, Adv Shabalala, are you asking for the Twitter feeds to be uploaded? Or are you asking for the letter from the Bar Council? Because I did not get a letter from him.
Adv Shabalala: The Twitter feed. Chairperson, maybe I need to warn you. I do not know whether it will be appropriate because of the insults. Maybe I need to warn the public that some of these tweets are tasteful.
Chairperson: Thank you for that warning. Just make them bigger.
Adv Shabalala: I do not think we will have time to go through all of them. Let me refer to the one of 10 August 2019. I am going to read this into the record. It is directed to the Public Protector:
‘If you take a monkey and dress it in a Louis Vuitton suit and put a hat and sunglasses on it, it will still remain a monkey. If something is a fake, no matter how you decorate it, it will still remain a fake. Apparently, this one is an underdog that is fighting for the poor.’
‘You could not have said it better my sister. But of course, you can see the calibre of people who have all come to her defence, so we, who are in the know and have experienced her incompetence, mediocrity and lack of understanding of the law, will never be fooled.’
‘After I resigned from that office at the end of November 2018, I was dragged to a disciplinary hearing for raising issues regarding her corrupt activities of appointing friends without following procedures.’
These are some of the tweets that have been generated by Mr Matlawe and directed to the Public Protector. I would like to place them on record to be considered by the Committee when it eventually considers all the issues placed before the Committee. But the most important point that I am trying to make, Mr Chairperson, is a response to the evidence that was floated by the evidence leaders and also to make a case that some, or in fact most, of these employees were ill-disciplined, disgruntled and no one has, in actual fact, ever accused the Public Protector, or the Office of the Public Protector of bringing in trumped-up charges. They all faced charges; there has always been merit in the charges and proper processes have always been followed. I know my colleague will jump up and down accuse me of testifying from the bar, but this is going to be evidence of the Public Protector.
Mr K Mileham (DA): Can I ask you something for clarity?
Chairperson: Honourable Member Mileham.
Mr Mileham: I wouldn't dream of accusing Adv Shabalala of testifying from the bar, although that is remarkably what it sounded like. However, what concerns me is the lack of a chain of evidence here. Those tweets have been entered into the record, but we have no knowledge of where they came from. We have no evidence from the witness that these tweets have any bearing whatsoever. We have nothing to link it to any disciplinary procedure. So I am very reluctant here to accept this as evidence unless Adv Shabalala is going to call Mr Matlawe and ask him: Did you make these treats? Because we do not know that at this stage.
Chairperson: I think he did indicate that he is placing this on record for us. I can ask him to just indicate their purpose and why he is placing them on record.
Adv Shabalala: This was placed on record in response to evidence led by Adv Bawa. Indeed, there is no value in this evidence until we call Mr Matlawe to come and testify. This is what we intend doing. But at the same time, Adv Bawa indicated to us that the evidence leaders will be calling Mr Matlawe to come in and testify.
Chairperson: So you are pre-planting. Thank you for that clarity. Would you now please proceed?
Adv Shabalala: Mr Mahlangu, you have already testified that the matters of Mr Kekana and Mr Matlawe were intertwined. Can you elaborate?
Mr Mahlangu: Yes, they are intertwined because it came from one report that pointed to both of them engaging in misconduct in the organisation.
Adv Shabalala: Then move on to paragraph 30. You refer to three members of your organisation, Ms Ponatshego Mogaladi, Mr Abongile Madiba and Ms Lesedi Sekele. Can you elaborate on that?
Mr Mahlangu: Well, I think I earlier in the day I said I learnt about an investigation that involved the FCSA, whereby the person being investigated had been asked for certain information and that information was not coming forth, but according to the person involved, the information had long been provided to the organisation. However, the three that were working on this case, and their juniors, denied that they had ever come across that information, that is, up until we did our filing inspection in the offices, and we came across this information. They confessed that they might have been wrong. At that time, remember, there was already an intention by the FSCA to fight the Public Protector and it was also threatening her with personal costs on the matter. And, yes, they had to be subjected to a disciplinary hearing.
Adv Shabalala: But you have also testified that this complaint related to their negligence in respect of preparation of the Rule 53 record and my understanding is that this function falls squarely within the Legal Services. It has nothing to do with the Public Protector. Can you confirm that? I am putting to you this proposition, based on your evidence that the complaint in respect of these employees was related to their negligence in respect of the preparation of a Rule 53 report. The proposition I am making is that this is the function of the Legal Services. It is their duty to compile Rule 53 notices. Yet, it seems the PP is also blamed for this. In this respect, then my question is, what's your take?
Mr Mahlangu: I shall stick to the affidavit for the sake of progress here. We talking about an incomplete record in order for the employees to prepare a Rule 53 notice. So again, you are talking about Legal Services? My understanding is that you want to say it was their investigation. They basically could not do a Rule 53 notice because of the incomplete record of information. I do not know if we are on the same page.
Adv Shabalala: Yes, yes. As a result, the Public Protector was unable to defend the review proceedings in that matter, and was advised by senior counsel, that she had no prospect of success in doing so. I might as well disclose, Mr Chairperson, that I was involved in this matter as junior counsel, working together with Hennie Smith, not me in particular, but our legal team gave an opinion to say this matter could not be defended by the Public Protector.
Chairperson: I take note of that, Counsel.
Adv Shabalala: We are about to wrap up our evidence. We'll go to paragraph 21. You say with specific reference to Ms Baloyi that she was employed for a probationary period of six months and then you go further down to the last part of the paragraph and you say the decision was taken that her appointment should not be made permanent. The PP took action not to sign a permanent contract based on a recommendation made to her. Do you know who gave this advice or made this recommendation to the Public Protector?
Mr Mahlangu: I did in my capacity as the accounting officer. I made the recommendation to the Public Protector not to extend the contract.
Adv Shabalala: So, it was never the Public Protector’s decision, Mr Mahlangu?
Mr Mahlangu: Yes.
Adv Shabalala: In terms of locating the documents that deal with the Annual Reports – they are in Bundle F page 394 to 395.
Chairperson: Bundle F 394 to 395. Thank you.
Adv Shabalala: Thank you. This is a document that deals with the strategic planning and the functions in the OPP. Annual Report 2018/19 deals with the outreach. We are trying to show compliance, and that over and above the core functions, the Public Protector has also complied with section 181(4) of the Constitution, which calls for the Office of the Public Protector to be accessible to the grassroots and to the people. Also on to your left, the strategic outcomes are related: prompt services delivered to all persons and institutions in order to promote and make and maintain good governance. This is also in line with our obligations in terms of the Constitution. Thanks, Mr Chair.
Chairperson : Thank you very much. Back to you, Adv Shabalala.
Adv Shabalala: I have already submitted that on the issue of investigations, the PP does have a role to play, which is to oversee the CEO. You can comment, Mr Mahlangu?
Mr Mahlangu: Can we go back to what the Advocate spoke about in terms of the role clarification of the Public Protector and that of a CEO. My understanding is that as much as the Public Protector is not involved in any way in the operations of the organisation, the CEO has a responsibility to report to the Public Protector about the activities of the organisation. In turn, the Public Protector, as an executive authority, expects accountability from the CEO. That is my reading of the question.
Adv Shabalala: I have no further questions to ask. Thank you, Chairperson.
Chairperson: Thank you very much, Adv Shabalala. I now invite Members to interact with Mr Vussy Mahlangu who is with us here today.
Committee questions to Mr Vussy Mahlangu
Dr M Gondwe (DA): In paragraph five of your affidavit, you state that you vehemently deny having intimidated, harassed or victimised any staff member in the Office of the Public Protector. So why do you think all these staff members have levelled these allegations of intimidation, harassment and victimisation against you? What motive do you think they have for levelling these allegations against you?
Mr Mahlangu: I am not sure about the use of “all” staff members. The Public Protector’s Office has about 346 staff members and when I left about 177 of those were investigators. Here we have people that misrepresented themselves or committed misconduct so they had to be charged. But the way they couch their statements, they imply everyone in the organisation had a problem with the CEO, which is myself, but I do not think that was the actual case. The fact is that everyone had his or her own individual case and I have provided the information about how things transpired up until the stage where people were charged. So I think they all have their motives, but that I do not hear. Maybe it has to do with the Public Protector, but it is not everyone, it is only a selected few.
Dr Gondwe: All right, in the same paragraph five, you state that prior to your employment in the OPP, you did not know Adv Mkhwebane. Please explain what you mean by this and why you felt the need to state this from the onset? Do you mean to say that you did not know her personally or where she comes from, her background and the like? And please confirm that prior to your employment at the OPP, you had not met her and that you had not interact interacted with her.
Mr Mahlangu: We are going to start with the last one. Yes, I have never met or interacted with her prior to my appointment. Why is there this statement? It is because, remember earlier we talked about the origins of the affidavit and how the evidence leaders came to me, how this Committee came to my attention. I was informed about what the Committee is doing and then it was brought to my attention that my name has been mentioned in different affidavits so the evidence leaders requested my side of the story. One of the questions was: Did you, by any chance, know the Public Protector prior to your appointment? Hence, you find this statement in the affidavit because that question was posed to me.
Dr Gondwe: Okay, you stated in paragraph 18 of your affidavit that you previously had the prerequisite security clearance? Did you have this security clearance while employed at the Department of Rural Development and I wanted clarity on the type of security clearance you had.
Mr Mahlangu: My involvement with government started at the Gauteng Legislature. I was a group coordinator. At that time, I did not go through any security checks. But in 2003, I joined National Treasury, where I became the Director of Public Finance. That is where I got my first security clearance. I think it was confidential. Then later, I was promoted to be the Chief Director of Institutional Management at the Land Bank Commission, and I have got the confidential one as well. Then after that, I became the Deputy Director General in 2012 and I had a top secret security clearance but it expired about the time I was about to join the Public Protector. Hence, I had to reapply.
Dr Gondwe: In the course of your oral evidence, you said that the advert for employment as CEO, stated that you would be subject to vetting for purposes of getting security clearance. Am I right to assume that your continued employment at the OPP was subject to you getting top secret security clearance?
Mr Mahlangu: Yes, it was a condition. It was in the advert, and also in the contract of employment and I had to go through that exercise.
Dr Gondwe: When Acting DG Jafta wrote the letter to the PP explaining that your top secret security clearance would not be issued until such time that your appeal processes had been concluded, what did the OPP have to say about this? And what did this mean as for the duration of your employment at the OPP; you did not have top secret security clearance, despite this being a condition of your employment?
Mr Mahlangu: Yes, it is true that throughout the duration of my employment, I did not have a top secret clearance. However, what the Office did, was they said I had to do an appeal. An appeal is done to the Minister of State Security. They received my application for appeal and the Minister referred it to the Department for information because procedurally, the Minister requires the Director-General to explain under what grounds Mr Mahlangu was not given security clearance. Then subsequent to that, my recollection is that the Director-General referred the matter to the responsible manager in the organisation. Then there was a change of administration in that Department and that was when we all lost track of my application.
Dr Gondwe: Now turning to the Limpopo assault, or the incident involving Mr Samuel, you stated in the course of your oral evidence before the committee, that Legal Services had brought to your attention that the OPP was being sued for an amount of R350 000. You looked into how the issue had been handled under the previous Public Protector. Then you took a decision that if the OPP lost this case, you would not be able to justify paying out all that money so you decided that the best recourse in the circumstances was to charge Mr Samuel and subject him to a disciplinary hearing. Was this your decision or that of Legal Services? You gave us the impression that it was your decision; when Adv Shabalala showed us the email, it looked like the decision came from Legal Services. Are you not of the opinion that by approving this decision, whether it was from Legal Services or from yourself, by going ahead with this decision to subject Mr Samuel to a disciplinary hearing, you were assuming that Mr Samuel was in the wrong and you put aside the fact that Mr Samuel was appealing? Mr Samuel informed the Committee that the complainant attacked him and he was acting in self-defence when the incident took place. Another question is, was there an external investigation conducted in relation to the incident before a decision was taken by yourself or Legal Services, to subject Mr Samuel to a disciplinary hearing?
Mr Mahlangu: I think now the origin of this matter is known since Adv Shabalala showed the emails but I am also recollecting the sequence of events. What happened is that after Mr Nemasisi provided that email, as I recall the sequence of the events, I still went back to HR to get a report about how the previous administration had dealt with the matter, because I really wanted to find out. Nemasisi had already provided a recommendation or advice as to how the matter should proceed, but we still had to find out from HR if this matter had been dealt with appropriately before. The response that came was not satisfactory. Now, there was the matter of who should charge Mr Samuel, whether it should be myself or other people. I still insist, obviously, that I read the charges, but now I remember that Mr Samuel had a problem at the time. He was very sick at that time. So, because of his condition, I delayed the charge, obviously, and maybe that is why he was charged very long after this incident had come up. But at the end of the day, yes, Mr Nemasisi may have brought this to my attention but the responsibility lies with the accounting officer to take the matter forward, which I did.
Dr Gondwe: In paragraph 31 of your affidavit, you state that Ms Baloyi was on probation for a period of six months but was not performing in her capacity as COO and the decision was ultimately taken not to confirm her appointment. The PP took this decision on the basis of recommendations to her and you confirmed during the course of your cross examination that the recommendation not to confirm the appointment was made by you because you were the one who conducted her performance appraisal. On what basis did you make this recommendation to the PP not to confirm her appointment?
Mr Mahlangu: This encroaches on that territory of dealing with a matter that is before the court. But I told the evidence leaders that to best answer the question at this particular point, they must refer to my notes in the document because it was not just verbal. I put notes in her report about how I saw her suitability for full time appointment. It is there and I do not want to contradict what I have said in that document.
Dr Gondwe: Please confirm to the Committee whether your responsibilities as CEO also included giving inputs when it came to investigations and the content of investigative reports. You stated in your affidavit that the CEO played no role in the merits of investigations, but the affidavit deposed by Ms Baloyi that was flighted earlier, stated otherwise. It accuses you, in fact, of interfering when it came to the content of reports.
Mr Mahlangu: I think we also went through that process of the allegations that were coming, in particular from Ms Baloyi. They started from para 40 and went down to 47. I went line by line, stating that I would not comment in areas I disputed, and in other accusations I could explain but there was a discussion with the Public Protector that I may not have been privy to. I have never involved myself in the investigations. But when I was explaining the types of meetings that were held in the organisation, for instance, I explained to the Committee that in dashboard, for instance, I would go those meetings, and I would listen because one of the things that would come up would be whether they needed any form of tools of the trade, and that became my territory, because I ensured that they are supported to be able to conduct the investigation. But again, what is important, I was never in meetings where the merits or the contents of the reports were discussed. I was in case management meetings where we discussed how far they were with the cases and when the PP could expect the final report or when the report would be ready for our quarterly media briefings because the Public Protector is accountable to the public. I had to be at those meetings in order to make sure that any supporting tool that they needed, was provided so that they could do their job.
Dr Gondwe: Paragraph 30 of your affidavit makes reference to the matters relating to Ms Ponatshego Mogaladi, Mr Abongile Madiba and Ms Lesedi Sekele and their careless negligence in respect of the preparation of the Rule 53 record in the FSCA matter. Can you confirm to the Committee what positions each one occupied in the OPP and who they reported to, who was supervising their work and whether their supervisor or their line manager was also disciplined in this regard?
Mr Mahlangu: I do remember their exact position, but the most senior of the three was Ms Mogaladi, next in line was Mr Madiba and then Ms Sekele. Once we found that they had this information that they had been denying all along, all of them were disciplined. I do not think the charges were the same, in particular for Ms Sekele as the other two had a supervisory role over Ms Sekele.
Chairperson: Mr Nqola.
Mr X Nqola (ANC): Let me reiterate a little bit on the issue that you depose in your affidavit that says you deny intimidating, harassing and abusing stuff. In the same vein, you have got Mr Kekana, you have got Mr Matlawe, Mr Neshunzhi, Mr Samuel and a whole lot of other senior managers of the Public Protector’s Office. I do not need to refer to this as butchering of the labour force. If you deny having been part of whatever intimidation, abuse, or harassment of the staff occurred, who then is accountable for this kind of operation, in your view? Who was responsible for what happened to staff in the Public Protector’s Office, in your view, which I refer to as a butchering of the labour force? I have counted a number of people.
Mr Mahlangu: Let me repeat, there was no butchering, intimidating, harassing or abusing of the staff members. However, there was a disciplinary process for Mr Kekana and Mr Matlawe that came from the investigative reports about the leakage of information. Mr Neshunzhi was exonerated but there were weaknesses in his performance and he was moved to a more suitable position. I have explained the issue of Ms Baloyi who was never charged but I could not extend her term of employment. There was a case around the FSCA matter relating to the Rule 53 record and, on the advice of the external lawyers about how best Public Protector should deal with it and then later when we were faced with the matters of litigation, the officials involved, Ms Mogaladi, Mr Madiba and Ms Sekele were charged. It was never abuse, intimidation and harassment. Everyone was taken through the process. The process was followed and then later, as the accounting officer, I exercised my responsibility to charge them, but it was not an issue of here is a problem, and we are charging people.
Mr Nqola: Okay. Let us agree that there are many who have been charged, some have been suspended, and some have been changed from one office to the other. How, in your view, has this affected the performance, the operations and the integrity of the OPP?
Mr Mahlangu: There was no “some” that were changed. There was one individual, Mr Neshunzhi, that was moved from his position as a Security Manager to Customer Relations. I mentioned earlier that when I left the organisation, 50% of the personnel were investigators, about 177 of them. If there was any compromise anywhere of the OPP, it was there where it would relate to a specific case that was problematic. We have provided enough information about why we ended up putting these people through the disciplinary process because they had compromised the Public Protector. That is out there now. And then coming to Mr Kekana and Mr Matlawe who were the quality assurance, the impact was minimal in that they were both reporting to the COO who, in their absence, had to handle their work or redirect their work to other officials that have the same capability as the two individuals.
Mr Nqola: Let us go to Mr Baldwin Neshunzhi who, you allege in your affidavit, was suspended on the suspicion of having leaked important information from the Office, but who was later exonerated. In fact, that was just an accusation and the person was not guilty of the allegation. What led you to think it was Mr Neshunzhi that had leaked that information and what process was followed in suspending Mr Neshunzhi?
Mr Mahlangu: We might be running very fast but I do not remember anywhere in the affidavit which said that we had investigated Mr Neshunzhi. However, we were investigating the leakage of the information, not a person. Then in the process of that investigation, the report pointed to Mr Kekana and Mr Matlawe.
Mr Nqola: So was Mr Neshunzhi never suspended on the allegation of having leaked information, and later exonerated?
Mr Mahlangu: Let me concede to that. Mr Neshunzhi happened to be in the unit where the information that was leaked was coming from. However, the investigation was about the leakage of the information. We had to put him aside in order to do the investigation. But it was never about him. It was about the unit that he was managing. You ask a question about how this process unfolded. I explained earlier that it was referred to HR working in conjunction with Legal Services to appoint an external person to do the investigation and later we had to do the disciplinary process against the other two colleagues.
Mr Nqola: You depose that Mr Matlawe actually was one of those who was very vocal about you having been irregularly appointed, but later you say Mr Matlawe has never suffered any abuse for having held those convictions against you as a CEO. Later you say he was charged for being complicit in the leakage of confidential documentation. Maybe you can make me understand your English when you say “for being complicit” because my understanding was that the charges against him was a way of revenging his conviction against your appointment.
Mr Mahlangu: Mr Matlawe was alone in being vocal about how I was appointed at the OPP. Yes, I confirm that I said he had been making all these issues about me and my appointment to the OPP and yes, I can confirm again, there was never an action against him because I was not shaken by what he was saying and I had work to do in the organisation. Now, again, I shall repeat, maybe slowly this time, when this leakage of information surfaced, that was when the report pointed to Mr Matlawe. It had nothing to do with the things or the vocality of what he had said about me and all the stuff; it was the findings of the investigation about him leaking information, actually between him and Mr Kekana sharing information outside. Actually, the wording of “complicity” came from the report. It is not that I do not understand what is complicity, but it came from the report. We spoke about the complicity in the conduct of Mr Matlawe because the charges were couched like that. The issue of Mr Matlawe later coming here and saying those are trumped up charges, I am sure the Committee will take him through what I have presented because I am presenting how the investigation started. We got the report, and we later had to charge him. In between all those things, he may want to tell you, Honourable Members, what it means to trump up charges, because there was a process that was followed. It was not just an issue of saying, “In the Free State, you said 1,2,3, come to my office, I am charging you,” and then saying, “HR, please run this man through the disciplinary process”.
Mr Nqola: Okay. You said when you interviewed for the position of CEO, the panel was led by the Public Protector. Were you made to declare the issue of the top secret clearance and the issue of the dismissal?
Mr Mahlangu: Chair, I was made to declare the issue of the dismissal. The issue of the clearance is an issue of once you are appointed, being given some time to obtain the security clearance. Obviously, the panel will ask you if you have an existing security clearance. You will say yes or no. So in my case, it was no. But I said I was willing to be subject to the process of vetting so that I could get a security clearance. All of those things were declared. Maybe just to take it further: during the first introductory meeting to the staff, he came with those allegations that I did not declare that I was dismissed, but, firstly, it was public information by that time, and secondly, specific questions were asked by the panel. I do not know why he had not asked the Public Protector, but the Public Protector responded and told the staff that she knew about Mr Mahlangu’s history with the Department of Rural Development and Land Reform.
Mr Nqola: Let us go to the Public Protector Act as referred to by Adv Shabalala. Section 3(1) says: “The Public Protector shall, subject to his or her directions and control, in the performance of his or her functions under this Act and the Constitution, be assisted by" and when you go to 3(1)(b): “a suitably qualified and experienced person as Chief Administrative Officer, appointed by the Public Protector or seconded in terms of subsection (12), for the purpose of assisting the Public Protector in the performance of all financial, administrative and clerical functions pertaining to the office of the Public Protector.” That in my view means Mr Mahlangu was the CEO who was assisting the work of the Public Protector in that office. So it is my view that it is not ultra vires for this committee to call Mr Mahlangu to come and testify to the work he was doing on behalf of the incumbent Public Protector as against what Adv Shabalala was asserting.
Mr Nqola: In all these pending matters, and some have been concluded against the labour force of the PPSA while some are even now in the Labour Court as previous witnesses testified, if you, Mr Mahlangu, can take us into your confidence, as much as some of the staff were suspended, has the Office followed all the due processes of suspending and charging and investigating those particular staff members? The last question relates to the fact that Mr Mahlangu and his office confiscated laptops of some of the managers in the OPP, such that there is some information that the Committee would have required but was lost in that process.
Chairperson: Thank you Mr Nqola.
Mr Mahlangu: The investigators in the leak of information did not confiscate the laptops, but they had to have access to the laptops in order to determine the movement of the information and you will know that those people would also have been vetted as not just anybody can have access to the information of the organisation. Proper procedures were followed. The legal way of doing things and the procedural way of doing things was followed. We hear a lot about how Matlawe resigned and then the letter of suspension came thereafter, but I am not privy to that. You know very well that if there was any procedural unfairness in the disciplinary process, the person would have recourse in that he could bring to the attention of chairperson of the hearing how he had been treated and it would be up to the HR person to pronounce on that. You were making a statement about the accounting office being appointed to assist the work of the Public Protector and you were reading from the Act. I think I agree with that. So I won't dispute that.
Chairperson: Honourable Sukers.
Ms M Sukers (ACDP): I am going to actually just start with where Mr Nqola ended. Can you explain how your role as CEO relates to the role of Chief Administrative Officer, as it is described in section 3(1) of the Public Protector Act.
Mr Mahlangu: The position is called Chief Administrative Officer but for purposes of not confusing the public, the organisation, long before my time, decided on the name “CEO”. So basically, you've got three names, Chief Administrative Officer, CEO and accounting officer, and that is the role of this chief administrator. Organisationally, the position is called CEO but the responsibility is to be the accounting officer of the organisation.
Ms Sukers: Can you describe how you worked and interacted with the Public Protector? Did you work as a team?
Mr Mahlangu: I can confirm that we worked as a team. The Public Protector is the executive authority and the accounting officer accounts to the executive authority.
Ms Sukers: Section 3(1)(b) states that ‘a suitably qualified and experienced person be appointed as Chief Administrative Officer, by the Public Protector or seconded in terms of subsection (12), for the purpose of assisting the Public Protector in the performance of all financial, administrative and clerical functions pertaining to the office of the Public Protector’. How did you assist the Public Protector in that regard?
Mr Mahlangu: First, I am suitable and I am qualified and I have an experience. My CV is out there. First, I assisted the organisation with the financial management, we brought about a clean audit, dealing with issues of irregular expenditure, issues of budget management, and then it will include issues that are before this Committee like dealing with administrative matters, dealing with HR, Legal Services, I assisted there because from time to time, when there is an issue, it ends up with me. Then I am the one who gives direction to the other executives or the organisation about how the matter should be handled.
Ms Sukers: We agree that in terms of administrative and clerical functions, that your job would be to assist the Public Protector and give direction to the organisation. Contrary to what Mr Shabalala has said, that it actually intermarries your role with that of the Public Protector.
Mr Mahlangu: There is a journey here. You have an executive authority, providing leadership and giving the CEO the mandate of the organisation, the mission, and then you have the CEO driving that strategy of the organisation. But what I think Adv Shabalala was referring to was that, at some point, and he used [the analogy of] the lane, there should be some conversions, because an accounting officer will need to come report to the executive authority about the ongoings of the organisation. That is where the interaction comes in. It is not a question of saying, ‘Here is a blank cheque.’ There should be accountability at the end of the day. That is when those lanes converge.
Ms Sukers: We agree with that. Then I want to ask the question: would it be a fair statement that the work environment at the Public Protector's Office can be described as an environment of mistrust? Would it be a fair statement? You can expand on your answer.
Mr Mahlangu: No, I do not think it would be fair. There were some people that did not take kindly to being taken through the disciplinary process. We all know what those people have stated in their affidavits. However, that is not the entire organisation and not everyone in the organisation has this poor relationship with the Public Protector or the CEO.
Ms Sukers: I want to ask you a question in terms of the secretary or the administrator – I am not sure of the job title of the person who erroneously sent the email to Adv Kekana. Was any disciplinary action taken against this individual or individuals?
Mr Mahlangu: After this incident happened, and then there were other leakages, we had to undertake this process of investigation. I think the question is related but there was nothing said specifically in terms of disciplining the PA; but I think somewhere they mentioned the way she had handled the information, but it was not specifically about whether we should discipline her or not.
Ms Sukers: You said that there was nothing unique about Mr Samuel’s case or disciplinary hearing. Is it not peculiar, the length [of time] between the incident and the action taken? And then secondly, around the circumstances as described by Mr Samuel, when the incident happened, and in your role, would you say that it would be fair to the individual, given the time lapse between the incident and the actions taken by the organisation? Would it be fair to the individual and I want you to respond to the issue of ‘there is nothing unique about Mr Samuel's case or disciplinary hearing’ and yet there are these two peculiar peculiarities.
Mr Mahlangu: The word ‘unique’ was used because there was a specific question about whether Mr Samuel's disciplinary process was done in line with how the organisation would ideally follow a disciplinary process. Then I said that there was nothing unique because it followed the same process as any other disciplinary processes before or happened even after that. Again, one should come slowly to this one. The matter happened in 2011. We all acknowledge that. We did not know about it. But now this matter resurfaces as a form of litigation. It is no longer about 2011. What happened in Limpopo may be an old case, but we have a person sitting at the gate with a lawyer saying: “I am demanding compensation because your colleague assaulted”. So at that time we had to defend the litigation, even though it was an old matter and we had to do something to justify going forward with this colleague, Mr Samuel. As I explained earlier, we did not just say, “Here's this R350 000, let us deal with Mr Samuel". We asked those that were there at the time: “How was this matter handled?” And the report that they gave was not sufficient. Then in terms of fiduciary duties, I had to do something as an accounting officer. There is a relationship between what Mr Samuel said in his testimony around the issues of human resource management – I am just now thinking and I am going to say it without casting aspersions. He mentioned, and I am not going to quote him verbatim, that during the previous Public Protector’s time, there was no appetite for disciplining people. He was there at that time when there was no appetite to discipline people. Now, we come and I do not have any report of how that administration dealt with this disciplinary matter (and it was a disciplinary matter, no matter how you look at it) and whether the outcome was to fire Mr Samuel or not, is a different matter, but it is a disciplinary issue that needed to be in the HR file up until its natural death.
Mr Mahlangu: My understanding of my administrative responsibility was that I had to do my own hearing, so that I could satisfy myself. If you were listening at the time, I said that any disciplinary process is not about firing a person, but is to determine whether the actions of that individual were right or wrong. At the end of the day, that will be determined by those that are assisting us to collect that investigation, and come up with a way forward about it. To me, Mr Samuel was right to say, “Guys, but I paid the fine. If we are doing this, again, is it double jeopardy?” because HR had spoken to him about the matter that was resurfacing. And because we do not have any information about how or whether this thing was properly dealt with, they said: “You won't be touched again, assist us so that you avoid…”
Chairperson: Thank you. That has been covered.
Ms Sukers: I want to go back to my first question, which was to do with the environment and the culture of the organisation. I listened to your answer and my interpretation of what you are saying is to look at punitive measures rather than look at the context of the organisation Mr Samuel, when he came here before the Committee, mentioned that there were issues of safety and given that incident, security was upscaled at those offices. I asked this question: is there an environment of mistrust? So I am going to add then: is there a punitive culture that existed within the Public Protector’s Office?
Mr Mahlangu: I dispute it, and I am pulling again to speak about what I viewed as a disciplinary process. The disciplinary process is to take you through a process for you to clear yourself. The example as case in point is Mr Neshunzhi who was taken through the process but he was never punished. Then he came back to his position. I said if there was any mistrust, which I do not think so, it was with those individuals that were charged because of certain misconduct they conducted. We all know that maybe this is how they felt they must react to the processes followed by the Executive, by the accounting officer.
Ms Sukers: I have two more questions. I want to say in response to what you have said, and I want you to really think about what I am saying: you had two options as a CEO, you had an incident that happened nine years between you taking an action within the organisation and the actual incident happening. You had the option of investigating the circumstances around the incident. However, your immediate answer to me is that you provided a disciplinary setup for the employee to defend or to give his side of the story. I am saying in an organisation where such action is taken without the context of everything else – the safety of the individuals – the fact that it is the Public Protector’s Office, the fact that there are unhappy people in many of your investigations, if you do not take those intangibles into consideration, would you not then say that your actions show it is a punitive environment?
Mr Mahlangu: I remember that the first reaction was not to authorise disciplinary action. As I explained, the first step was to ask HR for the report then I would see if HR brought to my attention that they had decided to deal with Mr Samuel this way or that way. So then I can select this option to advise the executive authority that Mr Samuel was taken through the process and that it was up to us to take a decision to defend the litigation or what to do. But the problem here was that there was no audit trail of how the previous administration had dealt with the matter. I had to do something. That something was just to take Mr Samuel through the process. If its punitive, it is unfortunate, because I do not determine in advance the results of what should happen for a person that is going through the disciplinary process. But I just want something that will tell me that something happened and this is how, going forward, you should deal with this colleague. The weakness in the whole thing was that the previous administration did not deal with this matter, leaving it to arise after nine years and got me to deal with it.
Ms Sukers: You mentioned that you left the Public Protector's Office in January 2020. You resigned?
Mr Mahlangu: Yes.
Ms Sukers: Could you just expand on what you said about needing to seek or to explore other opportunities. What were the other opportunities? Or was there a definite offer in front of you that you were pursuing?
Mr Mahlangu: Even the Public Protector asked the same thing; I did not respond to her. I just felt that I would get something after the my engagement with the Public Protector’s Office. I just felt that I should just leave and go and pursue other avenues. I do not feel the Public Protector's Office. Thanks. Sure.
Mr B Nodada (DA): The main question I had has been addressed by Mr Nqola and Ms Sukers. It was around your role as CEO being intertwined with the responsibilities of the Public Protector. But I just want to go into something that you mentioned, Mr Mahlangu, around what you brought to the Office and part and parcel of what you said was you brought assistance to the organisation with financial management. Correct?
Mr Mahlangu: Yes.
Mr Nodada: There has been an allegation levelled by Mr Samuel, and initially, part of the reasons why you said you had to institute some form of disciplinary process was because the OPP was being sued for R350 000. Is that correct?
Mr Mahlangu: Yes.
Mr Nodada: Now having said that you are bringing assistance in financial management, and noting the allegation of 'reckless litigation' which has seen a rise of that line item in your budget, what are your views on the reasons behind the increase in money put into litigation in the institution?
Mr Mahlangu: Litigation is something that comes externally, something that the organisation basically has no control over, but I have been looking at what it is exactly that we are talking about here because the line item of Legal Fees contains many things apart the litigation, that the public out there knows about you. You are paying a lot of people that are assisting the professional services. I might be wrong, but that is also counted in that way. It has been an education. But there had never been a proper costing, so no one can say this increase in litigation is caused by this and that and that. So we'll just to go back a little bit and break down this litigation that we are talking about. So what was that about really? The cost driver for the line item was the legal fees. So yes, I still insist I came up with the strategic or financial management. We are all guided by National Treasury cost cutting measures and I implemented that. But like I said, litigation is something of this world because you cannot control people from suing the organisation or taking the organisation to court. But with the evidence leaders, I discussed in detail all the line items and the things that we wanted to target in order to cut costs. Obviously, litigation was not one of the items, but in the revised budget I also convinced everyone in the organisation that we were not going to challenge any reviews. So that was also my advice in terms of financial management. You will see that from 2020 the organisation no longer challenged reviews. There were reviews, by the way, but we took a decision that we will abide by the decision of the court. That was in addition to all other cost containment measures that I came up with.
Mr Nodada: What do you think the cost drivers of litigation were during your tenure? Because you said you must break down and give details of the cost drivers of those line items? What would be the cost drivers based on your assessment as an accounting officer dealing with the budget and having all this financial management? What would be the cost drivers of that personal litigation based on what we've seen?
Mr Mahlangu: You would provide professional services where you bring in external services.
Chairperson: Let us be more specific about professional services. Let us just decode it as consultancy.
Mr Mahlangu: I will remember that is required today.
Mr Nodada: You said that there was a subsequent circular that you released as part of your cost containment measures. Initially, the one that was released did not include litigation, but the second one did include it. Correct?
Mr Mahlangu: I am not sure if I had signed the second one when I left, but it should be documented in the meetings that I proposed that we did not challenge reviews.
Mr Nodada: Would it be correct to say that part of the reason for putting litigation in the second circular, whether it was signed or not, was that it was part of your cost containment measures? Is that correct?
Mr Mahlangu: Yes.
Mr Nodada: Would you then concede to the allegation that has been levied by Mr Samuel then – there was reckless litigation that would have cost the OPP and that needed to be contained as you contended in your second circular?
Mr Mahlangu: There was an increase in litigation but it was not reckless because what is the definition of reckless when people are suing the organisation? It is not reckless in the nature of the business that the Public Protector’s Office finds itself in. If people are not happy with their reports, they have the right to challenge and seek a review. At that time we were challenging reviews, but that we might well not be able to afford it was debated in the Portfolio Committee and it suggested that maybe we should consider not challenging the reviews and then we took a decision. But what I am not comfortable with is the use of ‘reckless’ in describing the expenditure.
Mr Nodada: So what would you say the reasons were for you saying in the second circular – 'let us not challenge reviews and let us reduce the funds used for litigation'. Are you aware, Mr Mahlangu, of the judgments on the CIEX and Vrede?
Mr Mahlangu: The judgments I am aware of.
Mr Nodada: I just want to get your thinking on the second circular when you basically said, 'let us reduce our spending on this line item of litigation and let us not take these things on review'. Did you think that everything you were challenged on as the OPP needed to be defended? Did you believe that you needed to defend everything at the time and you maybe subsequently changed your view? Is that why you released the second circular?
Mr Mahlangu: Let me put it like this because one of the questions was why later I came up with this strategy, not to take cases on review and was it a revision to the cost containment measures. Cost containment measures is not a once off exercise. When your chief financial officer presents the budget and expenditure, you would go line by line to ask where we could cut the fat - it is an ongoing process. It could be a circular with ten line items today and next week, we find another item that we think we should add. I will make an example. I think we had a problem with the cars. Then later we did our calculations to say it would be better to own our own cars than to rent cars. It is an ongoing process to come up with cost containment measures. Now under litigation, in particular, a debate was happening at a higher level, even here at the Portfolio Committee of Justice and Correctional Services that argument was raised. The argument that the executive authority was advancing was that some of these matters had an impact on the operation of the OPP. So we agreed to identify those matters that have a direct impact on the operations of the Public Protector and defend those; but even if the Office is losing, if the matter had no direct consequence to the operation of the Office, then we would leave it.
Mr Nodada: Have you ever reviewed those matters that might not have a direct impact on the Office? When you were looking at the costs of that particular litigation, did you make an assessment of your success or not of that litigation for you to come to a decision of deciding to cut costs?
Mr Mahlangu: It was not only an internal thing, remember, it was also I am repeating this for the third time that it was also raised in the Portfolio Committee, but now I remember there was an issue here, when the report was issued, and challenged. Legal Services are the ones responsible to advise the Public Protector whether to oppose or not, so that was a factor in Legal Services strategy. They would say, “But PP, if you leave this matter unopposed, these are the consequences”. I am sure the Public Protector can explain this better because we're from the administrative side. Like I said before, our job was to be able to support the Office and curtail the litigation costs.
Mr Nodada: Last question. Mr Mahlangu, you said you are aware of the judgments that might be put to the Independent Panel and ultimately some of them being presented, such as the CIEX judgment. Are you aware of the Vrede judgment? And do know about the FSCA judgment?
Mr Mahlangu: Yes, I am aware of them.
Mr Nodada: And you are aware of the public comments on those judgments regarding the OPP? Are you aware of any of the comments there?
Mr Mahlangu: No, not really.
Mr Nodada: If you say you know, these judgments, what do you take from their findings, as a former accounting officer of that institution, considering that particular institution is viewed as an institution that is supposed to protect the ordinary South African in different instances? There were certain findings in those judgements and, as an accounting officer, do you think those inspire confidence in the Office or maybe they would have been a reason why you might have wanted to leave the Public Protector and explore other things?
Mr Mahlangu: Chairperson, can I please finish up by saying this talks to the investigation and I would prefer not to respond?
Chairperson : Members, we will take a break.
Chairperson: I now recognise Hon Herron.
Mr B Herron (GOOD): Mr Mahlangu:, I think you've answered this question a few times, but I am looking to really understand what it is that you're doing here. One of the charges the Public Protector faces is misconduct or incompetence in respect of a number of matters, and one of them is intimidation, harassment or victimisation of staff by the Public Protector herself and/or at her behest by the former CEO Mr Vusi Mahlangu. So I understand you are denying that you victimised, harassed or intimidated staff. Is that correct?
Mr Mahlangu: Yes, yes.
Mr Herron: Do you also deny that you undertook any of the disciplinary matters that others may have experienced as intimidation, harassment or victimisation at the behest of the Public Protector?
Mr Mahlangu: I can confirm that I dealt with disciplinary matters in the organisation, but how the staff perceived them, becomes a problem and problematic area.
Mr Herron: Did the Public Protector ever instruct you to discipline a member of staff?
Mr Mahlangu: No.
Mr Herron: And if the Public Protector became aware of a matter that might require disciplinary conduct, how would she have handled it? If she became aware directly?
Mr Mahlangu: As part of that lane crossing matter, she would refer the matter to me for further investigation. If she's got an issue with someone, it might not be a disciplinary matter, but it would become part of my accounting responsibility to say I am aware of this matter, and this is what I am doing about it.
Mr Herron: Basically you're here because in the motion you were named as someone who victimised, intimidated or harassed staff members, and you're here to deny that.
Mr Mahlangu: You asked the question, “Why am I here?”. Yes. I am here to clarify those issues.
Mr Herron: Moving to your evidence around the disciplinary processes you instituted after the FSCA review could not be opposed because of the Rule 53 record. There were three or four staff members, I believe, who were disciplined because of inadequate record keeping. Is that correct?
Mr Mahlangu: Yes.
Mr Herron: In the period that you were the acting CEO, were there any other disciplinary processes conducted because of an inadequate Rule 53 record?
Mr Mahlangu: Not particularly because of Rule 53, but you may remember, when I was speaking about the irregularities that we found in the previous audit, we had two officials that we had to discipline for irregular procurement at the Office. I think in the Gauteng Office we also had to discipline someone for misconduct. There were cases other than the ones that I've discussed here.
Mr Herron: The reason I am asking is that Mr Samuel gave quite extensive evidence about a number of reports in the Vrede Dairy matter which was reviewed during your term as the CEO, where those reports were not part of the Rule 53 record and he used terms like “inexplicably missing”. I am just wondering – so there was no consequence arising out of the Rule 53 record for the Vrede Dairy matter absent documents that had existed.
Mr Mahlangu: I am not following the equation properly. Remember, the Public Protector's Office did not discipline people because there was a review matter that we had to oppose. I had to take disciplinary action because our colleagues argued with the person who was being investigated that they had never received the information. They denied that they ever received the information, only later to find that they had the information. It was not a question of saying, because we are losing this matter, then we are going to discipline you. They did not gather all the necessary information at their disposal to use it for concluding that investigation. So it is two different things.
Mr Herron: I understand that, but I think the situation is almost identical in the Vrede Dairy matter. There were reports that were apparently transferred from the Free State Office to Head Office and then when the matter was under review, those reports were no longer available to be filed as part of the Rule 53 record. They would have also gone missing, just like in the FSCA case.
Mr Mahlangu: I want to respond to that but I also just want to make sure that the calendar of events is accurate, because to my recollection, when the initial failure was done, I was not there. I do not know whether the information that you're saying went missing between the Free State Office and the National Office happened during the first Vrede Dairy investigation or the second Vrede Dairy investigation.
Mr Herron: It happened during the first. So after the first report was published in March 2018.
Mr Mahlangu: When I just joined the Office.
Mr Herron: Actually, the review would have happened much later than March 2018.
Mr Mahlangu: I only joined the Public Protector in May 2018.
Mr Herron: Mr Mahlangu, the reviews would have taken place while you were there.
Mr Mahlangu: Okay, the first was a point of clarity. Now, the second point. I never heard of any missing information at that time. Only while I have been following the events as they are unfolding now, do I hear that files were missing. For the first time I hear it, but remember, I was not involved in investigation. My role was to provide the tools of trade to the Public Protector and investigators in order for them to execute the duties.
Mr Herron: So there was never a complaint to you that staff members had lost documents in the Vrede Dairy matter?
Mr Mahlangu: No.
Mr Herron: Finally, Mr Mahlangu I am going to want to go back to the disciplinary process faced by Mr Samuel. The legal advice to investigate was delivered on November 2017 in that email from Mr Nemasisi from Legal Services, saying that the Office was being sued for R350 000. Did that litigation against the OPP commence in November 2017? Was that email prompted by the service of the summons?
Mr Mahlangu: It was prompted by the service of the summons.
Mr Herron: But six years after the incident would the matter not have prescribed?
Mr Mahlangu: Maybe what was lacking in that email was to advise the Public Protector and myself that the matter had prescribed. So basically it could have been an omission from the legal adviser. But again, even HR should have picked up on that to say that it seemed like the matter had prescribed. Maybe that is the option that the Member was talking about?
Mr Herron: But do you know for a fact that the summons was served in November 2017. It was not the case that the summons had been served a long time ago and Legal Services were suddenly alerting you?
Mr Mahlangu: No, no. In my response, I was referring to the email, not the summons.
Mr Herron: So you do not know if the summons was served in November 2017? It could have been served years previously.
Mr Mahlangu: Yes. So I do not know if there was a recollection of that.
Mr Herron: Another thing about Mr Samuel is that his affidavit says that when his disciplinary process commenced on 11 March 2020 – that was the first instance of disciplinary action against him in almost 20 years of employment at the OPP. But you had long since gone by then, you left in January 2020.
Mr Mahlangu: I think we spoke about this. There was a question from the evidence leader earlier about whether I was involved in the charging of Mr Samuel or not. Then I said, “To my recollection, yes, I did.” But those charges that were signed by me during my time were never served on Mr Samuel because he happened to be very sick, then it was inappropriate to serve the charges.
Mr Herron: I did hear you say that you were to commence the process, but you did not serve the papers and you held back because he was ill and you felt it was inappropriate. But according to his own affidavit, he was off ill from July 2017 to September 2017 so that would have been before the email of November 2017.
Mr Mahlangu: That is not the honest truth. Mr Samuel was always sick. I do not want to say that maybe he was ducking and diving because I strongly believe that he was sick. He was not in the office up until I left the employment of the Public Protector South Africa. That can be verified by the evidence leaders.
Chairperson: I am going to go ahead and I now recognise Hon Mgweba.
Ms T Mgweba (ANC): Mr Mahlangu, according to Mr Samuel’ affidavit, in paragraph 95 he said that the Public Protector’s Office was characterised by the high departure of senior staff members with institutional memory. Is that true?
Mr Mahlangu: Well, I will not deny that people left the organisation but, maybe I need to contextualise it. Well, when I arrived in the Office, there were other people that had opportunities and they left. Some left to join legal firms. When I arrived, there was no CFO, there was an acting CFO who left when someone else was appointed. In fact, she left us in the middle of the audit. People were leaving on their own accord, mainly because they had picked up other opportunities. So I will not deny that.
Ms Mgweba: What was your advice, as the CEO to the Public Protector, on how to avoid that happening?
Mr Mahlangu: I think the logical process for an accounting officer is to have a session with the person that wants to leave the organisation. In other organisations, you have a form which people complete to give their experiences in the organisation and why they are leaving. But in my case, all the people that resigned had already made up their minds and there was nothing I could do about it.
Ms Mgweba: Mr Mahlangu, do you believe that the charging and the dismissal of senior employees had a negative impact on the morale of the employees in the OPP?
Mr Mahlangu: Again, I think I tried to explain the point to say that there were uncomfortable incidents that were unsettling the colleagues and is the subject of discussion today. There was nothing I could do but at least I afforded them the opportunity to explain themselves. Some were not successful; some were successful.
Ms Mgweba: In all these activities, like charging and dismissing employees, including the appropriation of funds in that Office, do not you think that has weakened the OPP given the mandate by the Constitution to defend democracy and its citizens? What is your view?
Mr Mahlangu: My view on misappropriation? I think it is a harsh word and I do not think it was even there in any of the Annual Reports when I was still there. About the morale, I never did an assessment of the negative consequences of charging people but what I know for a fact is that people were not purged; people were charged because of their own conduct, which mainly was their own making. We had to go through that process.
Chairperson: I recognise Ms Mananiso.
Ms J Mananiso (ANC): With regards to what Mr Mahlangu has said this morning coming before us to clear his name, I just want to check with him if whatever has happened today and coming before us has achieved his objective of clearing his name.
Mr Mahlangu: I do not think the objective is to clear myself; the objective is mainly to clarify the issues and provide the necessary evidence about how things transpired at the OPP. I think so far I have provided sufficient evidence that the Committee can work with. If there is any other information from my colleagues, or they can prove me wrong, then that will be welcome. But so far I think I've provided everything that this Committee needs to work on all these allegations.
Ms Mananiso: Why were you initially reluctant to come to the Committee? I heard you when you responded to the Public Protector’s evidence but I want you to emphasise why were you reluctant to come?
Mr Mahlangu: Again, it is not that I was reluctant but I did not see the need initially to come before the Committee. But I stated that I was flexible and could present myself before the Committee, which I did today because I realised that maybe I needed to come and talk to some of the things, because in writing all might not be explained that needs to be explained.
Ms Mananiso: With regards to paragraph 27 was there any moment that Mr Mahlangu actually raised this issue with Mr Matlawe as his colleague. Mr Matlawe made some remarks about the employment of Mr Mahlangu. Did Mr Mahlangu have an opportunity to actually raise that conversation with Mr Matlawe to address all those things that he thought were an issue?
Mr Mahlangu: There was never intervention about this. But I would join them during their smoking break and chat to them, and they would make a joke about all these things. So there was never any animosity. But that is why earlier when I was talking about the Free State meeting, I said, out of nowhere, he just blew up and started repeating the issues spoken about when I was introduced. I somehow feel that he had a problem there because he was talking about me but then I just felt that I should leave it as long as we both got on with our work.
Ms Mananiso: Did you pursue disciplinary charges against senior managers exercising your own discretion? Or did you do this in consultation with the Adv (Mkhwebane)?
Mr Mahlangu: Now, I think, I've tried to respond to this. I was responsible for administration and all the disciplinary matters. I had to do it all myself. Obviously at the end of the day, there would be a report that would go to the Public Protector as the executive authority, but those matters were within my ambit.
Chairperson: Thank you. I now recognise Mr Mileham.
Mr Mileham: I want to start where Mr Nodada left off about the litigation costs. Would you agree that the massive increase in litigation costs points to an increase in the number of problematic investigation reports and that those reports were either bad in fact, or bad in law?
Mr Mahlangu: Again, this talk about investigations. I think the break helped. I just did a recollection because I spoke a lot about the cost containment measures and how we dealt with control over people that were applying for reviews and we were opposing them. It just came to my mind that in one of the discussions, especially during the Justice and Correctional Services Portfolio Committee, I remember now that the investigators explained the new trend of why all of a sudden 'we have increasing litigation'. The source is apparently the Nkandla judgment. Before the Public Protector reports, or findings, were not seen as binding, but after the Nkandla judgment, everyone was aware that they were binding and they would have to go to court to have them reviewed. That's where the problem started because of the binding nature of the findings of the Public Protector. It was one of the biggest problem that had just occurred and I have just remembered this. Whether our colleagues and the Public Protector are lacking in their understanding of law, and hence these reports are weak or not, I would not dwell much on that. But every time there is a legal matter a different set of lawyers put forward their points – but I think this is in the profession. It is not about whether we are well capacitated or not.
Mr Mileham: The courts would obviously disagree with you, but let us talk about your cost containment measures. Now, it has been alleged that these measures resulted in investigators being unable to do their work. How would you respond to that?
Mr Mahlangu: I never came across a line item that talks to investigators who were unable to do their work because of the cost containment measures. The opposite is true: I had to provide vehicles to all 19 Offices. I have spoken a lot about tools of the trade, providing in particular for investigators. But in the cost containment measures we are dealing with things like, before I came, there was a policy whereby if there was a bereavement of a family member of staff, when people went in support, they would use their cars and come and all the staff would claim. Then we came up with a policy that said only so many people can go and they must use one car. It may sound minor, but the benefits to the organisation were so high. Unless someone brings a particular item that talks to investigation being curtailed, which then compromised investigations, there was none to my recollection.
Mr Mileham: And yet we heard from Mr Samuel, that approved budgets for travelling and subsistence were reappropriated without consultation, and utilised for other purposes by the National OPP. So a provincial office’s funds that had been approved for investigations would be utilised by the national office.
Mr Mahlangu: It would have been maybe very helpful if the Member, like previous Members and the evidence leaders, referred to the affidavit he was talking about so both of us can interrogate what we're talking about. I am not exactly sure about the content of that particular paragraph. But like I said, we did our best to come up with cost containment measures. I would like to see that particular paragraph and to which budget line item Mr Samuel was talking about specifically that compromised investigations because of the cost containment measures.
Mr Mileham: It was during his testimony on the Vrede Dairy project, but okay. Mr Mahlangu, were you responsible for all the staff in the OPP as the accounting officer?
Mr Mahlangu: Yes.
Mr Mileham: Were you aware of Mr Sibusiso Nyembe?
Mr Mahlangu: All the staff in the OPP reports to the accounting officer; however, you had a few people that were directly under the supervision of or reported directly to the Public Protector. It is a person…their own department's staff so I will say the office itself kind of had its own few personnel and so on. He was one of them.
Mr Mileham: Was he an employee of the Public Protector? Was he on the payroll?
Mr Mahlangu: Yes, he was paid on the same payroll as the Deputy Public Protector, the Public Protector, and I think the Public Protector’s PA and the PA of the Deputy Public Protector was on the Public Protector’s payroll.
Mr Mileham: Are you aware of him attending meetings with the Public Protector prior to his appointment as her chief of staff?
Mr Mahlangu: When I joined the organisation, I think he was on his way out as an advisor as his contract had expired. Then there was a time when he was the Chief of Staff. I am not sure which period you are referring to – when he was still the Advisor or when he was a Chief of Staff?
Mr Mileham: Okay, let us talk about him as the advisor. What role was his advisory role?
Mr Mahlangu: Like I said, when he was an advisor, I think he was on his way out of the door when I arrived so I think I had a few weeks with him during that time.
Mr Mileham: Are you aware that he was introduced by Adv Mkhwebane as her political adviser?
Mr Mahlangu: That could have happened before my time. I can’t attest to it.
Mr Mileham: Do you think there is a need for a political adviser in a Chapter Nine institution like the OPP?
Mr Mahlangu: Well, let me maybe stay away from the word ‘political advisor’. But I know that most organisations, especially in the ministry, or in parastatals, there will advisors but I do not know whether they would be political advisers. I am not sure if that would be the suitable title.
Mr Mileham: Okay, you are aware that a ministry is a political appointment in government and that a political adviser then makes sense? My question was whether, in an independent institution like a Chapter Nine institution like the OPP, there is a need for political advisors.
Mr Mahlangu: There may be a need for an advisor, but whether their title should be political, I am not sure.
Mr Mileham: I am not asking you whether there's a need for an advisor. I am asking you whether you believe there is a need for a political adviser.
Mr Mahlangu: I am not sure. I need to apply my mind.
Mr Mileham: I want to draw your attention to the strategic document, the so-called strategic document, that Adv Shabalala put up which was actually in the Public Protector’s Annual Report for 2018/19. Can you explain why the number of outreach clinics dropped from 815 in the 2017/18, financial year to 277 in the 2018/19 financial year?
Mr Mahlangu: Again, it goes back to the discussion around cost containment measures. What informs the reduction in the number of outreach clinics from 815 to 277 was a need to cut the costs. The issue around this was what would be an acceptable minimum number of outreach programmes that the Public Protector needs to conduct. Obviously, these are issues that are coming from the strategic planning, it is not an instruction from an individual. The core needs were established and then there was a discussion on how best they can still fulfil the function, but not doing as many as 815 and maybe limit them to 277. So this is a result of the strategic planning of the organisation.
Mr Mileham: Earlier when Adv Shabalala was questioning you, he asked you if that was compliance with section 182(4) of the Constitution – that was about the Public Protector being accessible to all the citizens of South Africa and you agreed that it was. Now my question is: if you reduce the number of outreach clinics, which in the previous financial year, the Public Protector had identified has being critical to the role of reaching out to grassroots issues, by 75% more or less, is that not actually undermining the Constitution?
Mr Mahlangu: Remember, I am saying again, how you run the organisation, I think we have spoken at length about that, and maybe that was why Adv Shabalala was flighting the strategic document. The strategic document is informed by the interaction by all members of the Executive. They take that decision after making an assessment and I am sure it was not just looking at the numbers. I've said that to arrive at that decision, they would have convinced themselves to agree they were reducing the number of the outreach programmes but would achieve the same levels by sticking to this particular number. They felt that they could reduce them to this particular level and they could even change how they did their outreach. You would have to go deeper into the document to see what were the major changes they decided on while still aiming to achieve the issue of addressing the grassroot levels with a lower number of outreach.
Chairperson: I now recognise Mr Zungula.
Mr V Zungula (ATM): Did you pick up that some of the colleagues idolised and worshipped the previous Public Protector to an extent of undermining Adv Mkhwebane when she came into office?
Mr Mahlangu: There was a statement or suggestion by Adv Shabalala when he was giving evidence about the email from Nemasisi and one of the things he said was that "if anyone accuses you of this, you can now respond by calling them a liar". I responded by saying that I will not call people names and I want to respond the same here. I followed with interest what is happening, and that is one of the reasons for my decision is to come here. But I will still maintain professionalism in the whole thing. Not even when I was talking about the audit – how badly people who came before me had run the organisation and all the other stuff. It is up to everyone to read the Annual Reports. I am sure the public is following what is happening here. They hear what is happening, who's best and who is not best.
Mr Zungula: No, no, you have answered me and what you say is very clear. Why did it take the lawsuit for the PP to find out about the assault case of Mr Samuel? Did he not, when he was found guilty of the criminal offence and he paid the fine in 2017, have a responsibility to disclose to the organisation?
Mr Mahlangu: I always had one response throughout the day about the old matter of 2011. But later, I remember that, Mr Samuel – well, I brought up some other element around how human resources dealt with by the previous administration. And I do not want to go back there. Maybe there is a reason they did not deal with it because they had a certain position about how they handled human resources. It is one thing to say the disciplinary cases have increased, but if a particular administration was not doing disciplinary processes, how do we see the cases as increases now? But then the answer is that they did not keep any records about how this was handled. Some people may say they considered the matter but I do not know. I just asked for information that did not come. Then I had to institute a disciplinary process because we were faced with this litigation. And it is only the litigation that resulted in the disciplinary action against Mr Samuel.
Mr Zungula: Is it safe to assume Mr Samuel did not disclose his conviction to the organisation?
Mr Mahlangu: I do not know if Mr Samuel did not disclose. He might have disclosed but maybe people who came before me handled the matter differently. I just could not find the record.
Mr Zungula: Okay. You spoke about the outsourcing of investigative reports. What are those reports which legal firms actually were contracted to do those reports and who was the Public Protector at the time?
Mr Mahlangu: I felt that I must not go into too much detail on that matter but these things, unfortunately, can be picked up in the Annual Report. The name of those involved in specific investigations, nor do I remember names now but there were two law firms that were involved: Bowman Gilfillan and then Adams and Adams, and it was during Adv Madonsela’s time when this outsourcing of investigations was done.
Mr Zungula: Which investigations were those? If you can remember.
Mr Mahlangu: Can I park that so that I can go to the Annual Report of 2017/18 and then I can provide a specific list of those reports? There are quite a number of them.
Mr Zungula: Now do you think that the narrative that you are an enforcer of the Public Protector, was driven by people who are trying to evade accountability for their misconduct?
Mr Mahlangu: Remember, I maybe did not put it like this: when people are being disciplined, we differ and maybe it is how they react to the situation. I may not even assume that they are considering accountability. Off the top of my head, I would think it is a natural reaction for a person to be disgruntled and to come with counter accusations and all the stuff may be to divert the situation. But what is said in this particular organisation is that there was so much sympathy that came from other institutions. The Public Servants Association (PSA) had an obligation to find out what was happening but I would not blame them that much because Matlawe was a representative of the PSA so you feed them whatever you feed them and they issue statements without verifying the facts. Then you have CASAC that was all over the Public Protector but never communicated to us to say, “Can you give us your side of the story about these things?” They were in town about business relating to that organisation, but not even a single meeting with me as CEO – if they have a personal issue with the Public Protector – to ask what was happening in that organisation. But to summarise what I am saying, I think it is a natural reaction by people that have been disciplined to be disgruntled and start being all over the show instead of focusing.
Mr Zungula: I think you have stated that before you came in, before the term of Adv Mkhwebane, it would appear that there was no appetite to hold people accountable and discipline people for misconduct. When you came in, or during the term of Adv Mkhwebane, and that was the case and people were unhappy. Do you agree with that statement?
Mr Mahlangu: I agree with the statement because it came from the evidence of Mr Samuel. It is not something that I knew before but as I was following the proceedings and what he said, I started asking myself whether there was never an audit trail of how this matter was dealt with because it looks like there was no appetite for addressing disciplinary matters during a particular administration, but it is a statement that I took from Mr Samuel.
Mr Zungula: As you came in with cost cutting measures, a different strategy, etc. do you feel that maybe some employees pushed back because they were comfortable with the lax attitude and the culture that was there in the Office and were uncomfortable with you enforcing accountability and making sure that people were accountable, especially Mr Kekana and Mr Samuel?
Mr Mahlangu: With my previous experience in managing people, I know that people get to be comfortable in a particular environment and change is a problem because people are told that things should be done differently. But I do not think to that extent people were unhappy with the cost cutting measures, because not everyone in the organisation was travelling. I'll make an example, coming back to the outreach, PP had a team of customer relations people that she would take into the provinces and districts and those were the first people that were not happy because instead of taking a contingent of ten, PP would go with five people. The rationale was that when you went to a particular province, you have your colleagues doing the job, so why duplicate? The Public Protector would just get there and interact with those people and then the work was done. Maybe through travelling, they were enjoying themselves and not that they were being reckless, but they would go away from Gauteng and interact with Public Protector, so maybe it was just one or two were frustrated as they enjoyed being able to speak in other provinces and with other staff. Yes, there might be those that were not happy. But I do not think all of them because the investigators would still travel because of a particular investigation. They are still travelling, obviously there is still that pending matter of Mr Samuel talking about how it impacted on the work of the investigators, but I want to see what that is about. Maybe it will come up in the course of the hearing.
Mr Zungula: There were people that had been in the employ of the OPP for a very long time, let us say 20 years. Now, do you think that those people had some entitlement in the processes or in the strategy of the organisation because in their eyes, they knew how the organisation should function and the strategies it should follow?
Mr Mahlangu: In my specific case at the Public Protector, I worked with those colleagues that had been there since time immemorial, and it is the other way round, believe me. I enjoy working with them because of their institutional memory. One senior manager was Stoffel, in particular, had a very good relationship with me and would bring lots of things to my attention. I also worked very well with Mr Ndou, because apparently, before I came, he was one of the acting CEOs. So I had to interact with him when I received documents, just to verify how he had arrived at those decisions and whatever, whatever. Then there was a very helpful colleague who had worked in different units and she was able to tell you how things were and other junior staff. So to me, let me not forget to mention Neels, I think he would be very angry to hear that I did not mention him. It was never about the years that they had spent in the organisation and that they had become disgruntled, but it was about what I was getting from them in order to take the institution forward. So those that think that way did not cut me off as a CEO, but I felt like I managed the situation. In other cases, I just made sure that we have a professional relationship, because I wanted the thing to work. Where there was a professional relationship, nothing else, we just worked without any problems. So I never had a problem with the number of years that people have spent in the organisation. Instead, I put that to my advantage.
Mr Zungula: Did you ever receive an instruction from Adv Mkhwebane to purge people, influence the scope of the investigations or to do something that is unethical or illegal?
Mr Mahlangu: We have dealt with that and I deny that I have ever been influenced by the executive authority in the execution of my duties, especially when coming to the investigation reports which I stayed away from.
Mr Zungula: Which one had a bigger outreach and bigger range between the district model and the programme that dealt with individual matters?
Mr Mahlangu: I think that the district one was very effective, because if you get to the district, you can meet people from the entire district and you get to attract people from all the district including different local municipalities. Yes, I think the district one was more effective than the individual.
Chairperson: Thank you. I now recognise Ms Tseke.
Ms G Tseke (ANC): Is it merely a coincidence that everyone who complained about the improper conduct of the Public Protector was subjected to a disciplinary hearing? And you, and only you, were at the centre of it? For example Mr Samuel, Mr Kekana, and the rest.
Mr Mahlangu: I do not have a problem that most of, especially the administrative issues, are around me as a former CEO of the organisation, because it was my responsibility to assist the Public Protector and run the organisation. It is natural, it comes with the job and the responsibilities that I was given. Maybe that is why I am here to account - because I was running the organisation at an administrative level. So it is not about the coincidence; it comes with the responsibilities.
Ms Tseke: Whilst you were employed at PPSA, you earned the nickname of “Public Protector’s Henchman” by your colleagues. Mr Samuel says it was because of your relentlessness in pursuing suspensions and disciplinary notices against staff. Are you or were you a henchman of the PP?
Mr Mahlangu: I did not know about that nickname. But I think it goes with the territory and responsibilities so it is not an insult. I did not know about it but, yes, when I was reading some of the affidavits, I came across all those sorts of names. Remember again I said I am not going to be in the business dealing with such these things. I am not interested in them.
Ms Tseke: Referring to paragraph 28, how and when did you discover that Mr Matlawe lied to his trade union, the PSA, with regard to his case?
Mr Mahlangu: I saw in the affidavit that I said as far as I was aware, the trade union PSA had initially indicated that they will assist him and subsequently declined to do so because to the best of my recollection, it had discovered that he had lied to them. This was information that I got from the HR people who said it looked like Mr Matlawe was resigning because the PSA was not supporting him – but there was never any official documentation. It was an issue that they just brought to my attention, which was not relevant to me because the disciplinary process would have proceeded in any case.
Ms Tseke: Do you believe that the PP conducted herself improperly in the manner in which she dealt with some of the reports such as the CIEX and Vrede Dairy project?
Mr Mahlangu: Like I said before, for the case of consistency, I will not comment much on the investigations. So I do not want to answer this one.
Ms Tseke: Have you ever abused your authority?
Mr Mahlangu: The answer is no.
Chairperson: I now recognise Ms Tlhape.
Ms M Tlhape (ANC): You indicated when you started that you are reluctant to come before the Committee. But after some persuasion and self-reflection, you deemed it necessary as you could make a difference in our thinking. How does your presence or your evidence help this Committee?
Mr Mahlangu: I am providing tangible evidence. I am not responding without any proof. So far, I have managed to state my case with examples and also with the necessary evidence that the Committee may work around.
Ms Tlhape: Mr Kekana indicated before this Committee that institutional policies were not followed, especially disciplinary issues. He particularly mentioned an instance where he was called into a meeting with the attorneys where, after interaction, the meeting was adjourned, and up to now he has never been told anything about the process that was supposed to unfold. What is your response to this matter of not following institutional policies?
Mr Mahlangu: I think by now, in all the discussions, there is enough evidence of how the processes were to unfold. I am not sure which one was not followed. We did an investigation, a letter was issued and then he had to go through the process. I do not know which process we did not follow or we jumped in the process of disciplining. I may be mistaken but I believe that we have done everything.
Ms Tseke: In hindsight, do you think all these cases that you have been interrogated on here, looking at what happened and considering the questions here today, do you think you could have done better or you could have handled them in another way?
Mr Mahlangu: I will slowly go case by case. The first case that I had to deal with was the case of the irregular expenditure. The person was taken through disciplinary process, a warning letter was issued to the person still in employment and we corrected the irregular expenditure. The issue of insurance: an investigation was done, the person was cleared and he came back to the organisation. Then we move to Mr Kekana and Mr Matlawe and they were found to have violated policy or to be involved in misconduct in the organisation and they were taken through the process. As in the evidence, I was saying Mr Matlawe opted to leave the organisation and Mr Kekana’s case is still under disciplinary hearing; we do not know the outcome. Then coming to Ms Mogaladi, the late Mr Madiba and Ms Sekele. The evidence leader asked me a question, “Are you aware that this person who seemed not to have provided the files was the junior official?” Then I said, “Yes, I became aware later, and I expected Ms Sekele and them to bring to the attention of the organisation that the information they had been denying was brought to the Office, had been brought. Then I would have picked up that one of the juniors was the one responsible for the abnormality, although I am sure chairperson of the disciplinary committee was going to come to a different conclusion, and then we would take it from there. Mine was to look at the severity of the problem, and then I take it forward. The people in that area were not even taken through the process; they were warned, because of the nature of what they had done. So it was about how far the impact of your case went and then deciding whether to take them through the disciplinary process or just give a warning letter. At the end of the day, we are guided by those that we appoint to assist us.
Chairperson: I now recognise Hon Mahlaule.
Mr M Mahlaule (ANC): The first question will be a follow up. People have asked you why you left your employment in the Public Protector's Office as a CEO. The first answer was that it was for personal reasons. The second one you said you were looking for greener pastures. I am tempted to leave the question, but something is not allowing me to do so because I do not believe that someone in the position of CEO will just leave like that without having one's next employment. At your age, I find it very difficult to believe. Are you in a position to share with the Committee what exactly triggered you to arrive at the conclusion that it is time you left. What was the real trigger, not that you are going for greener pastures?
Mr Mahlangu: My response still stands: I had personal reasons.
Mr Mahlaule: I was taking my chances. As a former public servant, who worked in the public sector for years and then in the OPP. Do you believe that the Public Protector, Adv Mkhwebane, eroded the integrity and prestige of the OPP? And this I am raising in light of the negative information that is in the public space. I am asking not carrying the view that is circulating in the public space although there is some negative narrative in the public space. What do you say to that?
Mr Mahlangu: I think the reality is that in South Africa, we have two societies, maybe the second class is the poor. I think the Public Protector has made that Office famous. It is what I call reachable because now everyone knows about the Office. These two or three cases that she has been fighting in court have a positive because now people have started to learn that there's that office that you can go to. Mainly because those three cases are of such a nature and without me going deeply into it, I think there is some positive because now people know the Public Protector’s Office.
Mr Mahlaule: Fair enough. Why should this Committee believe that it was just a coincidence that during your 19-month tenure as CEO, senior managers were charged, some dismissed, which may have created some level of weakening of the OPP?
Mr Mahlangu: Let us work on evidence, as I said, mine goes with evidence. I even illustrated earlier to say, look, at this incident by a colleague, where ill-discipline transpired for months up until there was a problem with the leakage. Then later, and it has got nothing to do with behaviour, or because he was involved in those three main cases. Then to speed up the process, the last one of the lost documents was a problem and they later conceded to the problem. There was a problem of missing information that was sitting with them. What else could I have done as a CEO? It cannot be a coincidence. Everyone that complained did so after there was an incident that happened and then there was a disciplinary process that took place. Maybe let me leave it at that. But there was a problem. There was a process that needed to be followed.
Mr Mahlaule: You are at liberty not to answer if you are uncomfortable about it, but the allegations that we have had paint a picture that your hands are dirty. What do you say to that? Just chat through that my hands are dirty?
Mr Mahlangu: I know I cannot throw questions to the Members but since this morning there were question about whether I have abused my authority. But I've been here since this morning – and just those words – after I've taken the liberty to come and assist the Committee with all this information. As I've been saying, I am bringing evidence and I am referring you to some evidence showing that processes are followed. But just to come in and ask about my integrity without any evidence, it is demoralising.
Mr Mahlaule: Remember, I in no way carry that view, I am just playing devil's advocate for you to speak to South Africans and the community to say if the narrative is true that your hands are dirty. That's why I even said, if you are uncomfortable, I am not married to that question. Thank you very much. My apologies if I offended you.
Chairperson: I note you basically demonstrated that you object to that question. I now recognise Hon Maotwe.
Ms O Maotwe (EFF): Now in your affidavit, Mr Mahlangu, you said you did not know the PP at the time when the interviews were going on. But your appointment was somehow linked to your previous job, and how you departed the Department of Agriculture, Rural Development and Land Reform. Why do you think that the issue of your departure from the Department has been highlighted as much as it has been in this Committee? What do you think? Why do you think there is such a highlight on your departure, the manner in which you left that Department?
Mr Mahlangu: There is this issue and I think the evidence leader tried earlier in the morning, when we went through the affidavit and the attachments, to address the story of the former colleagues in the PP Office who were questioning my appointment and pushing a narrative that I was corrupt and that was why I was dismissed from the Department of Rural Development and Land Reform. Then the evidence leaders asked to see the charges that I was facing in the Department and I provided them as part of the annexures. They talk about the misconduct, the main charge, basically, even though there are five charges. The charge is really about the identification and the selection of the beneficiaries. It had nothing to do with the violation of the PFMA or benefiting from that. I did not follow the policy. But when all these people are writing their affidavits, they talk about the corrupt Mahlangu. So part of this theory is to prove whether I would get into corruption not whether I was charged with corruption or charged with misconduct. It was easy for them to put that narrative out there so that it can present me as a very, very, very bad person. But I provided evidence again. I decided that I will work with evidence, not the hearsay, then someone has to prove me wrong and all that evidence I am putting forward to the Committee.
Ms Maotwe: Now, in your paragraphs 23 and 24 in relation to Mr Samuel and Mr Neshunzhi, it is clear that these employees or former employees had their own spirit of permanent problems with the OPP. Is it possible to separate the grievances they have from the complaints they later filed against the Public Protector?
Mr Mahlangu: I do not see any relationship between Mr Samuel and Mr Matlawe, but I suspect that it's the easy approach when they were writing their affidavits. Using the nickname of Henchman to enforce the blah blah blah. So it is intended, based on the different documents, for the story to get momentum. I just suspect; I do not know what informed the affidavit. They might have been written separately, but the original language is almost the same.
Ms Maotwe: Okay, then paragraph 26 to 29 in relation to Mr Kekana and Mr Matlawe. In retrospect, was anything wrong done by the PP Office in taking action against these staff members?
Mr Mahlangu: If I understand you, the only action that emanated against Mr Kekana and Mr Matlawe is the one that investigated the leakage of information. That was the only action that was taken. To my knowledge, there has never been any prior disciplinary action against the two former colleagues.
Ms Maotwe: Was anything wrong done by the people taking that action? The previous Office taking that?
Mr Mahlangu: Okay, yes. The investigation report pointed to the wrongdoing – being complicit in leakage of the confidential documentation of the organisation. That was the main charge.
Ms Maotwe: The witnesses that came before you – most of them had been taken through a disciplinary process of some sort and the issue was that there was slow progress in resolving the [investigation] process. Do you think that it was right for the PP to just sit and watch when the staff was not doing what they were supposed to be doing? I mean, they're getting paid every month. Was she expected to just sit and watch while people were just milking the state and not producing any product from your Office?
Mr Mahlangu: Okay. Earlier, you clarified what you mean by PP, you mean the Office itself. The meetings that we had with the managers would, from time to time, address the issues of performance. But the main issue that is before us here – are other things that led to the charges for disciplinary processes.
Ms Maotwe: Let us go to the strategic plan. My understanding is that the strategic plan of the Public Protector’s Office, or of any entity, demands certain deliverables. One of those strategic demands is investigation by the Office of the PP. The PP is sometimes held personally accountable for such investigations. Now, do you think it is fair for her to just sit passively when some of these investigations are delayed or she is not getting the results she should be getting?
Mr Mahlangu: It is so unfortunate that when reports were challenged, PP never laid charges around performance, even though there were personal costs and all that stuff. So you are right, there might be something. We did talk to them saying, “Guys, can you jack up your performance so that we can avoid the reviews or litigation?” but I do not remember any specific charge that talks to performance per se.
Ms Maotwe: Then there was this sexist tweet and I am sure that this Committee will raise it with Mr Matlawe, but what's your view on it? I mean, at some point, he said Adv Mkhwebane was “caught with her panties down.” What is your comment on that?
Mr Mahlangu: Remember, I decided not to respond to issues, also name calling and all the stuff. I will try to deal with the professional issues that are coming in this hearing but I am sure some people will deal with insults and all that stuff. I am not in a position nor capable of doing that. I would stay away from answering.
Ms Maotwe: Okay, let us go back to the witnesses that came before you. When they were being difficult, not about Adv Mkhwebane, but possibly to yourself being a CEO, did you receive specific instructions from the PP to deal with those staff members? Or was it your prerogative?
Mr Mahlangu: It was part of my duties. When the matter was raised, I had to take a certain action.
Ms Maotwe: Okay. When you took office, there was a R40  million mess by the predecessor of Adv Mkhwebane. How did you resolve it? How did you deal with it?
Mr Mahlangu: It was an unexplained liability that was sitting on our books since time immemorial. Maybe just to explain in layman's language, not being the audit committee, what you will normally see on an invoice is that money has been owed for 120 days, 90 days, 60 days, 30 days. When we do an age analysis of this amount we picked up that it has been there since time immemorial. We asked the question, “Who is this person that is not coming forward to claim his R14 million?” and then we decided to remove it from our books because you cannot have so much money sitting as a liability when no one is coming to claim it. We are right.
Chairperson: I recognise Hon Dlakude.
Ms D Dlakude (ANC): My first question will be a follow up. You said some of your colleagues within the OPP were not happy with the PP. What could be the reason for that?
Mr Mahlangu: I think a question was posed to me about newscasts and the Office staff members not being happy with the PP. Then I rephrased and said it could not be the entire organisation and I went at length to explain the number of officials that we have and the number of investigators. Then I said; however, there are these specific ones that, because they are facing disciplinary processes, are not happy with the Public Protector.
Ms Dlakude: With regard to the outsourcing of investigations, what could be the reasons for that?
Mr Mahlangu: I think at that time, remember, I was not there when the outsourcing happened but I think it was a problem with capacity. Then the Office took a decision to outsource. I think the evidence leaders may assist by going back and finding out because there is still an outstanding answer about the names of those investigations; then the Committee can establish why those particular investigations were outsourced.
Ms Dlakude: There are allegations that were made by Mr Kekana that reports were changed by the PP. Do you, as the CEO know what was happening with reports that would come from other investigators, then be changed by the PP? Can you attest to that or refute it?
Mr Mahlangu: I do not want to attest nor refute. This is about investigations. I will leave it to the PP to respond to the allegations. I do not have any evidence nor anything that I can say around this.
Ms Dlakude: Mr Mahlangu, in paragraph seven, you explicitly indicate that you were not found guilty of corruption or misappropriation of funds. However, number five, which you were found guilty of indicates that you abused your authority in the acquisitions and allocation process by forcing employees to make funds available when there were no funds. Does this not amount to misappropriation of funds?
Mr Mahlangu: This matter is still in court. If you go to charge six which is the charge that is supposed to be talking to the PMFA or the management of public funds. I was DDG of Land Reform, and as such I was responsible for budget management. I explained that part of the strategy was that if a province was underperforming in terms of the acquisition of land, I had the authority to shift funds around to assist those that were ready to acquire the land; then later we would deal with those that had not been ready. I am confident that this one doesn't talk to financial maladministration. I stick to what I told the Committee that there was no financial or investment mismanagement. It was about the process of identification and selection of the beneficiary, by the way, for your own information, that function resides with the provinces. They are responsible for the identification and the selection of the beneficiaries. I assisted with the budget allocations once they were ready to acquire the land.
Ms Dlakude: In paragraph 21 where you mentioned that you had monthly meetings where you dealt with case management which was dealt with by Legal Services in the Office of the PP. So if I may ask, there was an allegation in Mr Kekana’s affidavit that the PP would sometimes not take advice from Legal Services. What would you say about it?
Mr Mahlangu: Let me just go back a little bit so that we deal with this issue of Legal Services, the Public Protector and advice and all this stuff. When I joined the organisation, Mr Kekana was a quality assurer and there was that famous matter of CEIX. Then in my tenure, I think he had already left the Office of the PP. So I was not privy to what advice was given to the PP and what the PP did not take, because in my time, I had a need to be there. In the Dashboard meeting, i.e. case management, I explained that there was no discussion about the content of the investigation; it was case management – i.e. about how far they were, what things they needed in terms of assistance from administration in order to do their work. I also mentioned that Legal Services would come later in terms of the legal strategy, when for instance the report had been completed. I touched on it when we were talking about the issue of litigation, and which cases to oppose and which ones not to oppose. But the advice that Mr Kekana is talking about, I do not know about.
Ms Dlakude: Would it be correct to assume that all decisions you made regarding administration in the OPP, including the disciplining of employees, was at the insistence of the PP or in consultation with the Public Protector?
Mr Mahlangu: That is incorrect. The accounting officer had his own responsibility. I think Adv Shabalala dealt with it at length about how I was expected to work and how Public Protector was the executive authority. He spoke about the lanes converging when I gave my account to PP about my activities in the organisation.
Ms Dlakude: During the tenure of …
Chairperson: We are going to leave her because her screen has frozen. I now recognise Hon Maneli.
Mr B Maneli (ANC): The first point would really be a follow up on a question around whether you've ever abused authority which you've said that "it had just never occurred to me". Charge 4 talks to abuse of authority as it relates to officials and charge 5 talks to abuse of position – just to confirm the pending review of those charges on which you were found guilty. I am referring to the charges as put on page 2731.
Mr Mahlangu: I shall provide the same answer as before. These matters are still in the Labour Court. I think I tried my best to venture into this territory, even though I think I am not supposed to be dealing with this matter. But I think the biggest issue was for me to clarify that I was never charged with any corruption. These charges are saying nothing about corruption; they talk about misconduct. During the interviews, that's what the evidence leaders were interested in. They asked, “Why are these people who are bringing allegations against you, always refer to your corruption and whatever.” And I bought the charges for them to see that there was no such thing as corruption, but it is a failure to adhere to policies. If you read the charges and then you go to the DPSA (Department of Public Service and Administration) circular that we flighted at the beginning of the day and explained what this means in terms of prohibition and all that stuff; it still did not fall within the ambit of corruption. Can I leave it at that?
Mr Maneli: Will you agree with me, Mr Mahlangu, that I've not mentioned corruption as yet. I am talking about charges four and five as they relate to abuse? Maybe, just to explain the relevance of the question: it is because of the accusations of harassment and so on by Mr Mahlangu, who denies those to have been the case but, in fact, which is believed by some people in South Africa. Now this is important because Mr Mahlangu appears before the Committee to clarify himself, because then the next question is: what then makes him believe that the Committee should really accept his version, if he has been found guilty on four and five? But as I say, if he doesn't respond to that, I'll understand; as long as he understands the context in which this question is raised. So far, no mention of corruption. Can you understand that?
Mr Mahlangu: I fully understand and will really appreciate it if we let the court decide.
Mr Maneli: I move forward. In paragraph 14 of your affidavit, just to give context from a point of being a CEO, you said as chief accounting officer, in particular to litigation, there was not even a strategy for litigation before you arrived. Does that mean that those would be matters that would not really be handled by yourself and that they went straight from Legal and PP meetings to respond at the discretion of the Public Protector?
Mr Mahlangu: Again, I'll confirm to you, as I have with other Members, that matters of investigation were the responsibility of the Chief Operating Officer who had a team and they were reporting directly to the PP on matters relating to investigations.
Mr Maneli: If I may just repeat this question to Mr Mahlangu for my own understanding and maybe you'll help me clarify. I'll still come to the point about investigations. I am talking about litigation strategy, which you are seeing in that paragraph. I am saying again, it is asked in the context that there have been complaints about reckless litigation which is linked to the finances of the institution. I shall still come to what is meant by administrative support on investigations.
Mr Mahlangu: And I said it before, I think. We spoke about the litigation and I spoke about cost containment measures. Later, after the break, I remembered and told the Committee that there was a discussion, by the way, about why all of a sudden there was a surge in the reviews – that was because of the Nkandla judgement. Whereas before the Nkandla Judgment, there was a perception that they can contradict our findings as they were not binding but later, when it was clear that the Public Protector’s remedial actions are binding, at least some organisations and individual people would rush to court to litigate the organisation. The problem was that we had to oppose that. But later again, I think the decision was taken not oppose everything because of the cost containment measures. But Legal Services was responsible to advise the Public Protector which cases should and should not be opposed when they were taken on review. It was not like before where every case taken on review was challenged. I am not sure if I am answering the question.
Mr Maneli: Maybe just following up on that response. As you say, this would be the advice from Legal Services to the Public Protector. Does the Public Protector have discretion to make a decision, including getting another opinion on whether this should be the option to take?
Mr Mahlangu: Well, the final decision will be taken by the executive authority who will say how to proceed with the matter.
Mr Maneli: If I may just go back again to the affidavit to 23.2. I am linking this with the letter flighted by Adv Shabalala, that was written to the CEO and the PP from the legal side advising on the R350 000 that PPSA was being sued for in relation to the Mr Samuel disciplinary process. I just want to check the correctness of what one would have taken note of in paragraph 23.2. You make reference to who the executive is, i.e. CEO, DPP and the PP. Later on, you said it was recommended that you take disciplinary action. Are you referring to the letter of advice given by the legal department? Or did the executive, as you mentioned it, make the recommendation emanating from a discussion of the executive?
Mr Mahlangu: I do not know if I am mixed up or what. But if we are talking about the email that was flighted, that came from Legal Services to myself and the Public Protector, even though they advised us to take certain disciplinary steps, I still took the responsibility to ask for a briefing or a memo from the human resources unit to explain what had transpired before and how this matter had been handled before. Then I took the decision that I took. So yes, there was that advice, but we went beyond the advice itself, to make sure that we were not repeating an exercise that other people had performed before us.
Mr Maneli: If I may just get to the last part of that question: whether this letter would have also been discussed by the executive as referred to in 23.2, and therefore this would have been a recommendation. I understand the implementation part of it, who takes responsibility, given roles and responsibilities, etc. I am just checking on that because surely there should have been a reason. If there was a defined protocol on how administrative matters were dealt with and so in this instance, both the executive authority and yourself were addressed by somebody who should have understood the protocols on administrative matters. I am not talking about the implementation side of things; I am asking in relation to that line into 23.2 where you say, this was brought to the attention of the executive, and you outlined who the executive is. Now the question is, whether this line suggests that the decision was taken by the executive collective, or you were still talking to the letter of advice, which recommends the action to be taken or implemented?
Mr Mahlangu: My understanding is: because the email went to myself and the executive authority, was this discussed or did I just take it upon myself as the administrative head to run with it. If that is the question, then Legal Services because of the nature of the litigation that was coming, decided to send it to both the Public Protector and myself. But from there, I took it over. Yes, we talked about it because it was a shock to us so it was brought to the attention of the Public Protector but it is myself and I explained to the Member that the next step was to talk to the HR people. Yes, the Public Protector became aware, but I still had to take the decision myself as to how I best deal with the matter, not the PP.
Mr Maneli: Now let us get into the investigations. Again, just to establish that the administrative support given is limited only to resourcing and other things that may be needed, but would not include making inputs in terms of the actual product of an investigation, including amendments of reports?
Mr Mahlangu: Precisely.
Mr Maneli: My question this time is about those separate lanes and convergences. The Public Protector made a change to the system. There had been a complaint about the think tank, which was about peer review, and that was removed, and quality assurance was introduced, starting with those that investigated until the last person, in this case, the PP. Would you agree that this was also a positive improvement in that those who did the quality assurance would take personal responsibility for what they presented, including accountability later on, in terms of whatever way that report would have gone?
Mr Mahlangu: I was not there when there was a think tank so it is difficult to compare their work and the quality assurance system, but I do agree with what you say. With quality assurance, the advantage is that people will take responsibility for their inputs and their actions in their reports.
Mr Maneli: Just to check the part on the separation of lanes and the convergence whether from an administrative support position, you played any role in the quality assurance aspect of the reports?
Mr Mahlangu: The Quality Assurance unit was treated the same as all other investigators; if they wanted any support, that would have been afforded.
Mr Maneli: The last two points relate to a point that has been raised about Mr Baldwin Neshunzhi. I just wanted to check again that this is the person who was moved from management of security to customer services. Am I correct?
Mr Mahlangu: Yes.
Mr Maneli: If that is correct, I wanted to check whether the reasons would have been based on any qualification criteria, such as skills and so on, that guided you in the movement from security to customer services.
Mr Mahlangu: I think this is a reference to paragraph 14 of my affidavit. Also, we went to great lengths to explain the process. But to summarise, the report was very clear about the culpability of what was happening in the security unit and then it turned out that he had the necessary skills to go to the other unit. It was also about how best we could place him, based on the skills that he already had. There was a training exercise that we exposed him to as well.
Mr Maneli: Back to the security clearance question, which was raised in the interview and you said the PP responded adequately. Would it be correct to say that your appointment was subject to that security clearance being obtained and in the case that it was not, your contract could be terminated at any given time by the Public Protector?
Mr Mahlangu: That is correct. That is what the Public Protector communicated.
Mr Maneli: Whose responsibility would it be to ensure that happened, especially because you finally received a report on the security clearance as attached to your affidavit?
Mr Mahlangu: The process is that you agree to vetting, and then an application is sent on your behalf as an employee to the State Security Agency, which will then contact you directly and take you through the process of vetting. So what happens is that the process is conducted and at the end the State Security Agency communicates with the employer directly, or with a representative of the employer, about the results of your application. So your employer is the one who tells you about the outcome.
Chairperson: Thank you. I recognise Hon Skosana.
Mr G Skosana (ANC): Mr Samuel gave evidence that the environment at the OPP was unhealthy because, amongst other things, the PP started requesting weekly update reports. Failure to submit a report would be followed by audi letters, requesting employees to explain why they should not be disciplined. Do you know about this, and if, yes, what was your role in it?
Mr Mahlangu: I will not deny these letters, but what triggered these is that in their own meetings, especially with the COO, they would agree on certain deliverables and once there is a failure to deliver, then the sequence of events was that there were deliberations between the COO and the Public Protector. There would be an agreement that one needed to jack up one’s performance and if the performance was not jacked up, the Public Protector said she expected the COO to tell her what she wanted to do with those people that were not performing. Then the decision to send an audi letter would be at the discretion of the COO or she could report back to tell PP what she had done in her unit to jack up the performance. It was purely an issue of saying, “I am holding you accountable to ensure that there is performance in your teams, but how you are going to handle that is another thing.”
Mr Skosana: So would you agree that this might have impacted negatively on staff morale?
Mr Mahlangu: Earlier, there was a blanket statement about the staff morale, but I think this becomes an individual issue about the performance of that individual. Maybe the short answer is that it would directly affect the audi person at that time, unlike affecting everyone in the organisation because the truth is that not everyone was underperforming. Some people were doing very well in the organisation.
Mr Skosana: Regarding the disciplinary steps that were taken against Mr Samuel, which you deal with in paragraph 23.2 of your affidavit which indicated that you were not aware of any steps that were previously taken against him. So the question is, did you ever inquire from him specifically whether steps were taken previously?
Mr Mahlangu: I think we have dealt at length with this question and my answer has been that I asked HR to give me a report about how the matter was handled previously and what transpired was not convincing but it was not me liaising directly with Mr Samuel but the responsible office in HR.
Mr Skosana: I heard about the role of HR and the legal unit in the morning, but is there anything that prevented you from asking that of Mr Samuel himself?
Mr Mahlangu: No, not necessarily. Not necessarily. I just relied on the HR reports but there was nothing preventing me.
Mr Skosana: So did you give Mr Samuel an audi notice?
Mr Mahlangu: I had HR prepare me a notice that was supposed to be delivered to Mr Samuel, but like I said earlier, he was sick at that time, and I felt it very inappropriate that I would just go to a sick person or instruct HR to go and serve such a notice on a sick person.
Mr Skosana: What was your understanding of how the clean audit came about? And what impeded the clean audit previously?
Mr Mahlangu: It requires a lot of effort in South Africa to get a clean audit. We are guided by the PFMA, and in municipalities, the MFMA. The Acts place a lot of responsibility, especially on the CFO and the accounting officer and the Executive Manager. Basically to ensure a clean audit, that starts up there from the strategic planning to the operational plans, including governance structures, budget committees and risk committees making sure that money is spent according to what has been agreed upon and signed off by the executive authority. If there are any issues, you need to come up with an audit plan and document the plan. If there are issues that were not in your procurement plan that you would like to procure urgently, you need to go through the process of deviation, so that you state your reasons for doing deviations. I suspect that the people who were there before my time and my team were faced with different challenges. Maybe, thinking off the top of my head, they had a problem with space as the organisation was growing and the best thing for them was to say, let us extend the office but maybe they missed out on informing Treasury or the executive authority about the urgency of that. I prefer not to go too much into details about the challenges they were facing at that time. But maybe you can just accept what we did to come up with a clean audit.
Mr Skosana: We need to congratulate you on that. In respect of top secret security clearance, was there any document that had to be withheld from you because you did not have such clearance? Or any meeting you were told you could not attend in the absence thereof?
Mr Mahlangu: I think since we started talking about my role as an accounting officer, it has been very clear that I was not involved in the investigations. That is the part of the organisation's performance that I was not involved in. I was involved in the rest of the activities.
Mr Skosana: With regard to Mr Matlawe, when was the decision taken to suspend him and by whom?
Mr Mahlangu: This is also an outstanding issue in terms of dates because my recollection is that, okay, immediately after the report was issued about his complicity, they prepared the memo with the suspension and then the charges. But the disciplinary hearing was supposedly after he resigned and that is something that needs to be verified. I left at the point where he was supposed to be suspended.
Mr Skosana: To whom was his resignation directed?
Mr Mahlangu: That is a question because it was never brought to my attention that he had resigned, especially before he was served with the suspension letter. Ideally, how things should happen in the organisation is that he would resign to his immediate supervisor who will then inform HR and then they will develop a memo about this person leaving the organisation and they will explain that he can leave if there is no liability, etc. There is a memo somewhere about Mr Ndou leaving the organisation that presents an example of what happens when a person leaves the organisation.
Mr Skosana: So HR informed you about the suspension while you were still there.
Mr Mahlangu: No. HR did not inform me about the suspension; the evidence leader informed me that when he received his suspension letter he had already resigned. That was a contentious issue. How did that happen? Why did HR still proceed to give someone a suspension letter if he had already resigned? And that's the explanation that I was trying to get from the evidence leader. But that is the story. It doesn't sit well, because HR could have just said that it is an academic exercise because the guy has resigned.
Mr Skosana: In an institution with less than 400 employees, is it possible that one of the staff member who is a key role player in the organisation can just resign and then you, as the accounting officer, are not immediately informed? It is an institution of less than 400 employees.
Mr Mahlangu: Like I said, I still need assistance from the evidence leaders about exactly why I did not know. Okay, I know that means signing a document and going through the submission process. Let us say maybe the memo came with memos dealing with other things requesting this and that and that memo was not available. Then later I get to Matlawe’s letter but already it is late. But the question is why HR proceeded and served him with the suspension letter after he resigned. That question is still out there. Why did they do that? Because they should just have said the case was closed, according to them. But it is not about whether the number of personnel in the organisation was less than 400; it is how they handled this incident.
Chairperson: I recognise Hon Nkosi.
Mr B Nkosi (ANC): I wish to disclose that I know Mr Mahlangu from a previous employment. He was a Committee Coordinator in the Gauteng Legislature when I was still working there; I was in Social Development and he was in Finance. Mr Mahlangu, there is a point where we say, I am covered, but I am not covered. First, I think there are two things that continue to hang on you through your employment, but also post-employment at the Public Protector Office. Firstly, is that you joined the Public Protector under the disadvantage of having been charged and dismissed on charges of corruption and misconduct. Correct?
Mr Mahlangu: Misconduct.
Mr Nkosi: Also that you did not have security clearance and that assisted up to the point where you left. Am I correct?
Mr Mahlangu: Yes.
Mr Nkosi: As an experienced public servant, who worked on both the oversight side and the implementation side, particularly in finance, what impact did this have on your work and your directorial responsibility as the accounting officer?
Mr Mahlangu: I've addressed the issue of the dismissal up to a point where we went to the prescripts of people that had been previously dismissed unless the Committee or the Members do not believe in their own government prescripts that are out there, especially those issued by the Department of Public Service and Administration. I am not referring to a legal opinion from someone who said, “You can appoint Mr Mahlangu,” but I took the Committee through the prescripts of what happens if one is dismissed, the prohibitions and when one becomes eligible for employment, and it is there in the document. I will leave here with questions of whether this Committee believes in government department prescripts or regulations because this issue has been coming and coming, and there is no relevance when the follow up, or the new question, comes about whatever is said to whether the issue is of relevance to that or not. Those prescripts were used to appoint me back into the public service. The issue of security clearance is a different matter. Let me just divert a little - from time to time, and I am not saying that one particular organisation is not doing things right as everyone has a right to do things their way but we know the issue of security clearance; it is a problem. It takes a lot of time. There are people out there who are employed for longer periods without security clearance. It is a problem. If the State Security Agency is following these proceedings, they may want to deny that, but we can talk to every Director-General, in fact from director upwards, and they can provide statistics about willingness to apply, how fast the process is, and when the person is going to get the security clearance. But worse, which is something that the evidence leaders discussed at length as it is unheard of that a person has been denied a security clearance or the security clearance is pending because of a labour matter. One can ask what is the purpose of the security clearance? What are the key issues that the State Security Agency is looking into to deny or approve a security clearance of an individual? Someone may want to prove me wrong that is the first time that a person has been denied security clearance because of a pending labour matter. You ask a question about security clearance but the SSA said that I must read the letter properly: it is not saying that you will be denied security clearance; it is saying, “Can we allow you time for the process of dealing with your labour matter?” so it has never been denied. It is pending because of an outstanding matter with one government department. It has never been a problem as such because I was not involved in investigation. In all other functional areas of the organisation, I was able to perform. If you go back to my contract, the signed agreement, there is a clause that is very clear about confidentiality and how I was going to work under those circumstances in the absence of a security clearance. It is there in the document and it is there in the contract.
Mr Nkosi: My question was on the impact of this on your operations as an accounting officer. But nevertheless, Mr Mahlangu, was it a contradiction that you were responsible for management of people who were vetted when you were not vetted? Was that a problem?
Mr Mahlangu: I do not want to say not everyone was vetted. But yes, people were vetted but it was never a challenge or a problem to manage those people.
Mr Nkosi: And the vetting related to the entire organisation and not specifically to investigations. That was a requirement for being a CEO of PPSA, not only in relation to investigations. Am I right?
Mr Mahlangu: Let me respond by saying it is at the discretion of the PP how far she goes with allocating work in the organisation. Maybe the question would best be directed to the Public Protector.
Mr Nkosi: I just want to check: you were employed from 1 May 2018 to the 31 January 2020. Does this give you adequate experience in the PPSA to participate in the question that details the PPSA information management processes as indicated by Mr Matlawe?
Mr Mahlangu: What happens is that an organisation prepares its job specifications, and then they go on a recruitment drive, which is an advertisement, and I responded to that. I was qualified but I think I was horrified that this question of whether I had experience in managing information was raised.
Mr Nkosi: In certain instances, you had to recuse yourself, generally, when sensitive matters were discussed that required security clearance. Generally and specifically, did you not think that you should recuse yourself when the matter of former Minister Nkwinti was considered?
Mr Mahlangu: There was never an instance that I can recall that had a discussion around sensitive information that I had to recuse myself. And again, I was never involved in investigations.
Mr Nkosi: When does the PPSA close for the December/January period?
Mr Mahlangu: Depending on the week, whether Christmas is midweek or weekend, we close around 23 December.
Mr Nkosi: Would it be normal to charge a person around that period and require them to attend the disciplinary process five days later, returning on 27 December?
Mr Mahlangu: It goes back to losing information about the specific case. I would say most of the cases that we went through, we had evidence in the files. But in this specific case, we did not have the name of the person who recommended the disciplinary process for that particular individual. You must separate from what my role was when I signed the suspension and when HR or Legal Services present on 23 December. You will then be able to differentiate and to say the memo was signed by Mr Mahlangu on this particular date, and what occurred between HR and the person that is being charged resulted on that particular date. You need to find out what happened, why, when, when the date was decided, why on the last day of closing the organisation. So maybe it is up to Chairperson to request the evidence leaders get that particular memo that talk to that person and the sequence of events and how they unfolded.
Mr Nkosi: Mr Samuel testified that as a result of the litigious nature of the PPSA at the time, the outreach programme budget was cut and money was moved to Legal Services. Two questions. One, did you disclose to National Treasury, in terms of the prescripts, that you were doing virements between programmes and/or projects and did you get permission to move the budget at that late stage? You say in your paragraph 23.1 that you then decided to charge Mr Samuel because you were being sued for R350 000 in terms of audit requirements, and particularly in terms of the IFRS, you are required to disclose that as a contingent liability. Did you do that in that financial year?
Mr Mahlangu: Starting with the last one, yes, this was declared as a contingent liability as the matter was pending litigation. The first question on the virement, if you move money in the same line item, because it is all operational, there is no need to go through the Treasury process. If you move funds from personnel to operational, you would need to inform National Treasury, but not when the line items are related to each other. Because all professional fees that talk to the operations are located under Legal Services, there is no requirement to inform National Treasury. If it was such a movement, your auditors would pick up on that.
Mr Nkosi: But the amount was too much. Was the volume such that it had to be reported to National Treasury? You can respond to that or we can request the information from your previous office. You say that when you assumed responsibility, there was an indication that disciplinary matters were not dealt with, shelved or not attended to. One, did you identify that in your risk register? And two, what were the mitigating measures to prevent that? And three, did you scope the organisation to check if Mr Samuel’s case was an individual, isolated issue? Or was it a general issue in the organisation?
Mr Mahlangu: Let us start where you preface your questions. I said, as I was following procedures, Mr Samuel made certain statements about how previously disciplinary cases were handled by the organisation. I brought that up because I said that was why his matter was nowhere in the audit trail or in the HR file. That is why we did not know about it, although it was something that came after seven years. Even when I asked HR, there was no information about these meetings because there was that decision on how to deal with the disciplinary matters. It is not something that I brought up, but it is something that I shared during the proceedings about Mr Samuel. Then the risk register never addressed the issue of how disciplinary actions were dealt with as it did not feature in the risk management strategy. Hence there was no mitigation strategy to deal with that. Then whether the matter of Mr Samuel was an isolated individual case or general, I was told by other executives that we did not have a similar case. So I would say it was an isolated case, but I stand to be corrected.
Mr Nkosi: You are not correct in saying that it was a general issue of not attending to disciplinary matters, because you did not check with HR. For example, let us say if somebody in your internal cleaning service comes late, reports late or doesn't deliver is the discipline the same as in this division? That was not…that did not come from you, which leads me to the next and my two last questions. Firstly, did you think that it was a bad thing that the people accused you of being heavy-handed in your management style and took umbrage with your management style, and with the fact that they saw you as a direct line transmitting instructions from the Public Protector?
Mr Mahlangu: Let me start with the last one. I spoke at length about decisions that we take administratively and decisions that were taken by the executive authority. So there is no PP in the administration. Then the perception about the heavy-handedness again goes to the previous questions about the blanket statement around how the employees perceived the accounting officer, whereas this matter is limited to a few individuals.
Mr Nkosi: Let me just put it this way - it is my impression that you brought to the PPSA conduct that was associated with yourself in your previous employment as is apparent from charges one to five, which I agree you are appealing, but, in particular, charge four and six. In your previous employment, you instructed people not to follow processes and procedures, but also to disregard the law. Am I correct?
Mr Mahlangu: You are not correct. I am tempted to respond to you, but like I said, this matter is before the court, but you are not correct.
Chairperson: Hon Holomisa.
Dr B Holomisa (UDM): The charge levelled against the Public Protector is that she is incompetent. As a person who worked closely with her Office, would you agree with those who accuse her of being incompetent? Added to that question, as a former CEO, did the government support your institution when you asked for more money to hire qualified legal people? Lastly, in your recollection of events at the Public Protector’s Office, did you brief the Justice and Correctional Services Portfolio Committee on the progress as well as the challenges which you were facing at the Public Protector's Office?
Mr Mahlangu: To the last question about whether we reported to the Justice and Correctional Services Portfolio Committee about the progress and challenges, the answer is yes. At some point, we would meet that Committee and present our strategic plan and our annual report and issues would be raised. Then there would be debates and there would also be guidance to the organisation from the Committee members on how best to deal with the challenges. The Committee would also acknowledge the progress that we are making as an organisation. On the issue of support, in particular, monies when we wanted to undertake operations and maybe needed qualified personnel, I think we need to acknowledge that in the period from 2017 up until now, the economy has not been doing well and that necessarily meant that there were budget cuts across all departments and even the parastatals, including the Chapter Nine institutions. So everyone was fighting for budget and even those who had the best motivations were getting their money affected from time to time. Technically the institution is under the Department of Justice and Constitutional Development, so we would talk to them, especially about our operational budget and it did from time to time assist the organisation just so that we were liquid. Then the subject of whether PP is incompetent or not, I shall answer straight, no. Normally in my administrative duties, our live investigations, I got guidance from her. She is a hard worker, I do not know if she sleeps because I look at the emails and things that need to be done, and then we would just work, work, work. She is a hard worker and everything. Maybe without going too far, if I have to make an example that under her supervision, we managed the audits, it should send a message that at least she was there. She was there supporting the administration and the administration was getting relevant guidance in order to perform its duties.
Chairperson: Just before as we conclude and I hand over to the evidence leaders in terms of directives 6.16 and 6.17, normally I benefit from the questions posed by Members but today, I just have three areas of polarities. Before I can excuse you, I have three questions for emphasis, but also for the record. I want you to respond, but I want you to be emphatic about it. Did you have anything to do with investigations?
Mr Mahlangu: The answer is no.
Chairperson: Did you interfere with investigations at all?
Mr Mahlangu: The answer is no.
Chairperson: Did you make any inquiries from investigators about investigations?
Mr Mahlangu: No.
Chairperson: The second area is the phenomenal increase in litigation costs that you have responded to already. You are very firm that it cannot be regarded as reckless as it is one of those difficult things that you cannot budget and plan for. Am I right? I want to give you two examples, and I want you to indicate whether that would have been reckless or whether you saw that as a necessity. In the judgment on the Vrede Dairy, one of the scathing remarks made was the fact that there were two senior counsels utilised in that case for the same issue. If I say that is reckless spending, what would you say? And this is done in a case that involved ordinary people.
Mr Mahlangu: Earlier I was asked a lot about having a knowledge of the judgments and I decided to stay away from it, but I then recalled what the specific judgment was. But now that you bring to my attention the resources that were put into this case, I would say the Legal Services advised the PP on such because Legal Services, in terms of strategy, advised the Public Protector which investigations to defend, if put under review. I cannot account for how they came to this conclusion in advising Public Protector to put so many resources into that particular matter.
Chairperson: My last area for clarity is the legal challenge to the Public Protector’s report relating to the SARS Rogue Unit was brought around July 2019. You were CEO at that time. The court reflected that the PPSA appeared to have been derelict in its failure to locate Mr van Loggerenberg by not serving a subpoena on him, but also even the exercise of locating him would not have been a rocket science, kind of to say that basic investigating skills appear not to be used for this exercise of locating van Loggerenberg. In fact, we were told that the return of service was not even included in the Rule 53 record. Here's my question for clarity on that: did you take any steps against the investigators responsible for this?
Mr Mahlangu: Just to give a context to what you're saying. Remember, again, I was never involved in investigations, and it was never been brought to my attention that there was a problem in locating a particular individual and that particular resources were needed in order to assist. This will be best responded to by the PP and maybe the investigator that was involved, but it was never brought to our attention on the administrative side, the challenges thereof.
Chairperson: Do you know Ms Cleopatra Mosana?
Mr Mahlangu: Yes, yes, I know her.
Chairperson: What would have been your involvement in relation to her removal as the spokesperson of the PPSA?
Mr Mahlangu: Again, she was a spokesperson and then it was brought to my attention that there were challenges with her performance in that unit. Then I had to, from the administrative side of things, engage with her about certain failures or things that should have been performed.
Chairperson: Like? Just an example because I am interested in the exact reason for that removal.
Mr Mahlangu: It was things related to performance but I would not have them at the fingertips. It was mainly about the process. It was referred to me, but remember I was dealing with someone who was on the other side of the organisation, so we sat down, and I had an open discussion with Cleo about how best we could handle the matter. The position that she was holding in the Office of the PP was more prestigious than if she was moved to another unit and so we discussed what she was currently doing, and what the charges would be, and how that was going to negatively affect her career and her chances of promotion and I think she realised.
Chairperson: You can pause there. Did her removal come at a cost?
Mr Mahlangu: We looked at all the options and then I was away and it took time for me to finalise the matter, which I would have, but then I got some information that she had resigned. Now the fact that she had resigned meant to me that there was nothing more to take further. To my surprise, I learned a week or so later when I was informed by HR that she had decided to withdraw the resignation and was pursuing the CCMA route about her case of being removed from the Office of the PP. We had to decide how to handle the matter of the original issue of her going to another unit, or whether she was actually a normal employee of this organisation because she had resigned. We had to involve Legal and HR to advise about the process. There was a problem about representing the organisation up until Cleo got an order from the CCMA and then she wanted to attach funds from the organisation. Then I have to find out why there had been a lapse in that the OPP was not represented in the CCMA. After some negotiations, that matter was corrected, but by then, I was on my way out and I really do not know how it was finalised. Your question was whether the organisation lost money and in that case, I really do not know.
Chairperson: Thank you. I recognise Adv Mayosi who will be asking you a few questions.
Clarification by Evidence Leader
Adv Mayosi: Can you confirm for us, Mr Mahlangu, that you started at the PPSA Office on 1 May 2018 and finished on 31 January 2020?
Mr Mahlangu: Yes.
Adv Mayosi: This (on the screen) is the email that Adv Shabalala put up earlier in the morning. You will see from this email that it is dated 23 November 2017 and in it is the Senior Legal Manager at the time advising the recipients of the email about the receipt of the civil claim. He mentions and gives advice as to what the organisation should do to the employee because if no action is taken, it'll send the wrong message to employees. So you were not an employee of the PPSA at the time in November 2017? Correct?
Mr Mahlangu: Yes.
Adv Mayosi: Let us just go to the to the subject line. You are not one of the recipients of that email so to the extent that the PPSA CEO is referred to, that person would not be you. Correct? At that date, 23 November 2017, you are not there yet, is that right?
Mr Mahlangu: Yes.
Adv Mayosi: The PP was, in fact, one of the recipients of this email and the then CEO, as well as the CFO. Mr Samuel, in his evidence, testified that the alleged assault was known by the organisation in 2011 after it happened. Now, it is for this Committee to decide whether or not it accepts Mr Samuel’s evidence in that regard. But even if he is wrong in his version, Mr Tshabalala helped the Committee this morning to establish that the alleged assault was known to the organisation at least at that date on 23 November 2017. Before your time, correct?
Mr Mahlangu: Yes, according to this email
Adv Mayosi: According to this email, and you were not there at the time, so it follows. Can we go to item 12? I take you to this email now, which, again, Adv Shabalala was really helpful in bringing to the attention of the Committee this morning. It is dated 18 June 2018. You started on 1 May so obviously, you are now there. It is addressed to you as one of the parties to whom it is addressed. It is from Mkhwebane. Let's go to the one that's earlier than that email. This is the first email of that day on 18 June at 1:43pm. It is from Mr Nemasisi, and you are one of the addressees, but he really talks to the Acting CFO, and he is again discussing the matter of this claim. He suggested at the end of that email that some provision be made for it to be reflected as a contingent liability. Now the email at the top that I started with appears to be Adv Mkhwebane’s response to the email which is at 14:22. She talks to you directly. She says, “What's the status of this matter?” And then she addresses Mr Nemasisi: “Why are we defending this matter?” And so on and so on. Then she says at the end to Mr Nemasisi, presumably, “Show the documents relating to this matter to the CEO”. Do you see that? Now, can you explain why Mr Samuel was not charged at this time? Or after that?
Mr Mahlangu: I am following. So let me say ‘yes’ for now because we can make a follow up later.
Adv Mayosi: Mr Mahlangu, you're saying ‘yes’ to what?
Mr Mahlangu: I am saying ‘yes’ to I understand why Mr Samuel was not charged.
Adv Mayosi: I was just asking you to assist the Committee and to explain why he was not charged at this point in June 2018. Are you able to just clarify for us why he was not charged? At this stage, you are now in the organisation. On 18 June, the message was still being discussed. The PP asked for all the documents to be given to you at that stage and we have managed to establish from documents already before this Committee that he was only charged on 11 March 2020. My question really is why he was not charged now, at this stage? Show that.
Mr Mahlangu: It would have been better if the evidence leader could give us more information because I am now in the picture now. But none asked me a question. There is no email from me talking about my response that will help me for recall.
Adv Mayosi: Just for context, we weren't aware of this email. It was only shown to us this morning by Adv Shabalala and allows us to explain why it is that we haven't discussed it with you before.
Mr Mahlangu: So for completeness, I will request the evidence be shown just to find out my response to this so that we do not second guess this time going round. Remember, earlier I spoke about when this thing came and when I charged him. Now we are there. But there is just one piece of information missing? How did I respond to the PP?
Adv Mayosi: Yes, we'll ask Adv Shabalala to assist us by getting your response. But you were obviously aware of this matter, the alleged assault, as at 18 June 2018?
Mr Mahlangu: I did not remember the date, but I was aware of the letter. Yes.
Adv Mayosi: Mr Samuel gave evidence of the following sequence: he says, fast forwarding to 2020, he wrote to the Speaker in February 2020, he wrote to the PP asking her to resign on 10 March 2020, and he was charged on 11 March 2020. Do we understand your evidence to be that from November 2017 until March 2020, Mr Samuel was sick and could not be charged? Is that your evidence?
Mr Mahlangu: That is the path that I always wanted to refer to. My recollection is that I was given the suspension but it could not be served on Mr Samuel because of his condition at that time and because of the time lapse, I think Mr Samuel, and this still needs to be verified, did not receive my letter. But then this new matter of him writing to the Speaker and what-what surfaces. I suspect that after I had left, the Office amended my original letter to include this new matter that happened after I left. But we need assistance about how things unfolded before I left after I left and after he received these charges related to him after he wrote to the Speaker. Just from my original letter, I just need to get the details.
Adv Mayosi: So I shall just leave that issue. You confirmed to the Chairperson when he was asking you a few questions that you were not involved in investigations. He then asked you whether you made any inquiries from investigators about investigations. And you effectively answered ‘no’. That led us onto item 66 - an email from Sylvia van Wyk. She is an investigator in the PPSA. She is writing to you and it relates to a complaint, HS Buthelezi is the complainant, and she says she came to see you but was told that you were busy on the phone. She only remembered after leaving the Office that: "We were informed by the COO" (at the time Ms Baloyi) "through the Executive Manager (EM), Ms Mogaladi, that all communication must go through her. To avoid getting into trouble, I will inform them of your request. My apologies.” What request was she talking about?
Mr Mahlangu: There should be no clouding of investigations and when people send emails to the CEO or the PP or any other person to say, “I have a complaint, but I am not getting responses”. That is the nature of the inquiry; it is not about the investigation of this and that. That is to say, it is about not getting any response about a complaint that had been lodged and it would be sent to whoever was involved.
Adv Mayosi: In fact, it is just to help jog your memory along. You write another email, after this one to Ms Mogaladi and Ms Sylvia van Wyk, and again, you're inquiring about an investigation. You ask the COO, “Can I please have an update on the Silas matter and also attach all letters issued to them to date?”
Mr Mahlangu: This is one example of a matter that is already completed. There is a report. It is not an investigation anymore. There is a report, but this guy, he wants to know, what happened to this request going forward because there were already issues. There is a difference between an investigation and having received a report and there may be a party, like Northwest Contractors, that was very unhappy with the finding contained in the report. We are not talking about our investigative findings, because I did not deal with that. They would send this kind of information after the report has been issued.
Adv Mayosi: So the next email on that chain is from the CEO to the EM, “Can you respond to the CEO." And this appears to be still about the Buthelezi matter and you say it was a closed investigation. The next one in that thread is Ms Mogaladi, the EM. She is writing to investigators, copying you and the COO and she is asking the investigators, “Can you submit a memo updating the CEO on the status of this case and provide copies of letters requested?”
Mr Mahlangu: Let me just explain what is happening in the ones where the report has been issued. Only after they sign off the report, did Administration get involved, which means that the unhappy party must go for review. So it is for me to respond to this person and say, “The only option that you are left with now is for you to go on review.” I would require a lot of information on the case to prepare a letter to say that the PP is currently reviewing the report, but this is the direction that must be taken.
Adv Mayosi: In the last email in that thread that you write. Again your evidence, then, is that you were making inquiries in relation to a closed investigation when a report had been issued, but your earlier response to Chairperson, which was quite emphatic, was that you do not make inquiries of investigators about investigations has to be qualified then.
Mr Mahlangu: No, no, no. Throughout the process, words have been used interchangeably: inquiry, investigation, inquiry, and I am so disappointed that an evidence leader can put me in such a quandary. I recall that I might have responded ‘ yes’ on an inquiry instead of an investigation, so to me, these two are used interchangeably and the reality is that I was not involved in discussions about the case. Let the evidence leader go and take all these reports and prove me wrong that these matters were still under investigation so that we can kill this.
Adv Mayosi: Just to take up a discussion you had with Adv Shabalala earlier about involvement in administrative issues, I'll use the same phrase that you gentlemen used to show the separate lanes. The theory was that the PP must stay in her lane and you must stay in your lane. Do you remember that?
Mr Mahlangu: Yes, but we also expanded to say those lanes sometimes converge.
Adv Mayosi: You agreed with Mr Shabalala that if the PP got involved in disciplinary or administrative issues, it would be unlawful. Do you remember this?
Mr Mahlangu: Yes, we spoke at length about it.
Adv Mayosi: You testified as well that you dealt with disciplinary issues on behalf of the organisation and that if a matter arose, the Public Protector would refer it to you to take the necessary action via HR. Is that correct?
Mr Mahlangu: I would decide if it goes to HR or if it goes to Legal, depending on the nature of the matter.
Adv Mayosi: Let us start with this email at the bottom from Mr Alfred Mhlongo. So Alfred Mhlongo was the Senior Legal Manager at the same time when you were there - the email was sent in January 2020, and you left on 31 January 2020.
Mr Mahlangu: Yes.
Adv Mayosi: Can I just ask Members to indulge me as this is important for the sake of context for both the Members and the witness that I read this email if you could just allow me? Mr Alfred Mhlongo addressed the email to Sibusiso Nyembe, Chief of Staff; Neliswe Thejane, Executive Manager; Muntu Sithole, legal department assistant to Mr Mhlongo.
Good evening, Ms Thejane. I refer to the previous conversation regarding this matter on the subject line. This is about the disciplinary proceedings in relation to Mr Abongile Madiba, Ms Lesedi Sekele and Ms Ponatshego Mogaladi. Please note the email below from our external lawyers regarding the dates for the pre-inquiry and the hearing. As previously discussed, the spade work has been done in the matter. We have appointed external attorneys to initiate and they have been furnished with all the documents and information which they requested to enable them to prosecute the charges on our behalf.
They have consulted with Ms Carina van Eeden in preparation for her to be our lead witness. We have also appointed an external law firm to brief an advocate who will be chairing the hearing. He is the one who has confirmed the dates below. The initiators have, however, indicated that they will supplement our charge sheets and that they will send the amended charges together with the dates, times and places of both the Pre-enquiry Conference and the Enquiry to the three employees in question.
They indicated that they also require someone senior to corroborate Carina’s testimony and speak to other charges such as insubordination. Naturally Carina cannot lead evidence of subordination of her superiors. They indicated that it would have to be the COO, the CEO, or PP who can testify against the EM particularly. We must find out from them if the CEO can still testify, even though he will no longer be at the PPSA at the time.
They also indicated that the junior counsel in the matter in the FSCA letter must also come to testify. It is Adv Bright Shabalala [Members will recall Adv Shabalala mentioned his involvement in that matter earlier this morning] with whom you enjoy a good relationship and he will surely avail himself. We must just inform him of the dates of the inquiry and they must precognise him for the hearing.
I will give you a formal hand-over relating to this matter by next week. Muntu is involved in the FSCA matter to which the charges relate and will be helpful to plug any gaps you may have. I am also here next week but will be available telephonically by way of email should you need me thereafter.
So you will see that Mr Mhlongo addressed the Chief of Staff, the EM and copied his assistants. That was on 22 January at 21:18 in the evening.
On 23 January 2020, the PP appears to respond to Mr Mhlongo as it is addressed to him. It is also addressed to Sibusiso Nyembe and Neliswe Thejane. You are also one of the people to whom this email is copied, Mr Mahlangu, as well as Ms Motsitsi, who was also an EM at the time. The Public Protector says, "In addition to me and CEO, Ms Motsitsi should testify as I am handing over the file to her as Acting COO and requesting her to take action against Mr Madiba for failing to finalise the Section 7(9) on the promised date. Ms Motsitsi must also testify on how the matter was dealt with on handing over to Ms Mogaladi or arrival of the COO". Do you see that Mr Mahlangu?
Mr Mahlangu: Yes, I can see it.
Adv Mayosi: You were copied in on this email because you were still in the organisation at the time. Given your earlier testimony about the separate lanes analogy, do you accept that this email shows that the PP was at times involved in disciplinary issues?
Mr Mahlangu: May I put context to it, please? The request that Mhlongo was making and the rationale why he is communicating to those people, including the Public Protector, is because I was about to exit the organisation. Therefore, Mhlongo was compelled to involve the Public Protector for direction because I would not be there when this took place. So that's how there was involvement of the PP. But you can see we are via emails, maybe we can see a similar request from someone else that also involved PP, but this one is probably because of my situation at that time.
Adv Mayosi: So are you saying that the PP was well within a lane to instruct certain employees to testify?
Mr Mahlangu: No, I am not answering that. I am answering the rationale question. That is a different question and maybe Public Protector will have to explain, maybe differently from what I am saying, why she was involved now, all of a sudden, in this particular case, but really, my understanding is that this resulted from my departure from the organisation.
Adv Mayosi: Your imminent departure because you were still there at that time.
Mr Mahlangu: But I am leaving. It is going to happen but not before I depart.
Adv Mayosi: She also says in that first line, that Ms Motsitsi should testify on handing over the matter to her as acting CEO, and requesting her to take action against Madiba for failure to finalise the Section 7(9) on the promised date. Do you know who made the request to the Acting CEO to take action against Mr Madiba?
Mr Mahlangu: The information that you are asking for, is there in that email, isn't it?
Adv Mayosi: Not the question I am asking. Do you know who made the request to the Acting CEO to take action against Madiba? Did you make that request? Perhaps I should put it like that.
Mr Mahlangu: Because I was still there, it was supposed to be my job. I was supposed to be the one that asked the COO to take action against the investigators. But you can assist me if you have different information.
Adv Mayosi: So, it was you. Just for your comfort, we do not have different information at this point. We are asking for your assistance in that regard. So you would have asked the COO or the Acting COO to take action against Mr Madiba.
Mr Mahlangu: I believe so. The only thing here is that because I was leaving, then they had to decide how best to deal with the matter.
Adv Mayosi: I'll move on to Ms Basani Baloyi who was the COO from about February 2019 until October 2019. You testified in chief that you had raised your unhappiness with her performance, but you said you had not done it in writing. You said you raised these issues during Dashboard meetings. Do you remember that?
Mr Mahlangu: Now, the language that was used was that I would pick up information during the Dashboard meetings about what kind of support they wanted and then if there were any performance-related issues, they would be picked up there. Then there would be an agreement between the PP and the COO about how best they are going to jack up performance when she went back to the unit and the investigators.
Chairperson: Just a pause. I recognise you, Adv Shabalala.
Adv Shabalala: I am concerned about my learned colleague’s line of questioning. It is not consistent with rule 6.16, which you invoked, Chairperson. The evidence leaders are taking on the role of prosecutors and cross-examining the witness, and it is their witness. If you allow them to do this, we are also going to demand the right to re-examine Mr Mahlangu.
Chairperson: Thank you, Adv Shabalala, for raising your objection and placing it on record. Adv Mayosi.
Adv Mayosi: If I could just clarify. Firstly, this is not our witness. This is not that kind of proceeding where we are counsel who are calling witnesses who must come and present our version. This witness is here to assist the Committee.
Chairperson: Maybe imagine that this is a witness that has been placed here by evidence leaders in that context. But proceed.
Adv Mayosi: When we engaged with this witness, we told the witness that our task is to elicit information. In fact, we were talking to him because he is specifically mentioned in the charge. But our task is to elicit information, which could be both exculpatory of the PP but which could also confirm the charges against the PP. This witness's evidence, in fact, does not appear to be one that confirms the charges against the Public Protector so there should be no objection to him coming to assist the Committee in relation to the task at hand. If Mr Shabalala feels the decision…
[Interjection by Adv Shabalala]
Chairperson: Go ahead. I did not stop you.
Adv Mayosi: It is not the intention of the evidence leaders to appear to cross examine the witness. The purpose of this questioning was to pursue questions of clarity in relation to issues that arose in the main from cross-examination, but also from the questions that were raised by the Members and which issues are relevant to the motion that this Committee is tasked with determining.
Chairperson: And how far are you from wrapping up?
Adv Mayosi: I am two small issues away from wrapping up. You mentioned Mr Ndou, although I do not know if it was during your cross examination or during the questions from the Members, but you mentioned him as somebody that you had worked with.
Mr Mahlangu: Yes. I was making an example when concerns were raised around people who had been there since time immemorial, and whether they had an element of entitlement or not.
Chairperson: Hon Gondwe.
Dr Gondwe: I just wanted to check with Adv Mayosi to see whether she was done with the questions on Ms Baloyi.
Adv Mayosi: I was not done with it. I had just one question there, but I am under a bit of a rush to wrap up.
Chairperson: Proceed, but you just promised me you were on your last two issues. Do not be side-tracked by Hon Gondwe.
Adv Mayosi: Mr Mahlangu, you are aware that charges were brought against Mr Ndou on 14 November 2018, after he had resigned and some two weeks or so before he was to complete his notice period. Are you aware of that?
Mr Mahlangu: No, I was not.
Adv Mayosi: So you did not make the decision to charge Mr Ndou?
Mr Mahlangu: If I had made the decision, there would be a document with my signature on it or the memo that came from my office, or let me say I do not remember that. I do not remember charging Mr Ndou. But if you can assist with the evidence of that, then I will confirm it.
Adv Mayosi: Okay. Just to complete the question relating to Ms Baloyi. Did you ever sit down with her on a one-on-one basis and manage her performance in relay during that probationary period?
Mr Mahlangu: Yes, we did go through the probationary period. Then like I said before, I made my notes on her probationary reports.
Adv Mayosi: The last issue is the investigation into the leakage of information where Mr Matlawe and Mr Kekana were investigated, you remember that? You engaged the services of Diale Mogashoa Attorneys on 7 March 2019 and they, in turn, engaged consultants and they delivered a report dated 12 July 2019. Do you recall?
Mr Mahlangu: When they were flighting documents earlier, the dates were there. So, yes.
Adv Mayosi: Are you aware that the full cost of that investigation was more than R1.1 million?
Mr Mahlangu: Yes, the figure was around that.
Adv Mayosi: Thank you, that's all.
Chairperson: We have reached the end of the inquiry session today. Before I excuse you, Mr Mahlangu, I want to thank you for availing yourself. You have explained yourself throughout the day, and given the rationale for why you came here. We are not going to answer a question that was asked of you - whether your expectations have been fulfilled. I want to thank you on behalf of this Committee, for your contributions, spending time with us and answering the questions in all of the four sessions that we have had with you. Do you have anything to say before I excuse you?
Mr Mahlangu: I can only say thank you for the opportunity. I hope my contribution is going to help the Committee to arrive at the right decision about this matter. That's all I can say to Members and evidence leaders.
Chairperson: Thank you very much, Mr Mahlangu, you are now excused. I do see the hand of Adv Shabalala. I want to recognise you.
Adv Shabalala: Mr Chair, you still owe us a ruling. We raised objections, and there was no ruling on our objections and our request to also re-examine the witness, failing which, we reserve the right to recall the witness.
Chairperson: Thank you, Adv Shabalala. I did respond in a manner that, in fact, even before you raised your hand, I would have asked the evidence leaders to come to a close and wrap up what they were doing. I've noted your objection about what once you've referred to as a restarting of cross examination. The evidence leaders, through Adv Mayosi, gave a response to your objection and presented their own understanding and the relevance of this issue, basically disputing that it was a cross examination. The dispute is noted in that regard. I have just excused Mr Mahlangu, but certainly, if there is a point when you feel there is an outstanding issue, I am sure you would raise that with us at that point.
Adv Shabalala: Thank you.
Chairperson: The hearing is adjourned.
Dyantyi, Mr QR
Denner, Ms H
Dlakude, Ms DE
Gondwe, Dr M
Hendricks, Mr MGE
Hermans, Ms J
Herron, Mr BN
Holomisa, Dr BH
Jafta, Mr SM
Joemat-Pettersson, Ms TM
King, Ms C
Legwase, Ms TI
Lotriet, Prof A
Luzipo, Mr S
Mahlaule, Mr MG
Majozi, Ms Z
Malema, Mr J
Mananiso, Ms JS
Maneli, Mr BM
Maotwe, Ms OMC
Mbhele, Mr ZN
Mgweba, Ms T
Mileham, Mr K
Mulder, Dr CP
Nkosi, Mr BS
Nodada, Mr BB
Nqola, Mr X
Peters, Ms ED
Seabi, Mr M A
Siwela, Ms VS
Skosana, Mr GJ
Sukers, Ms ME
Tlhape, Ms ME
Tolashe, Ms N G
Tseke, Ms GK
Tshabalala, Ms J
Van Minnen, Ms BM
Zungula, Mr V
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