Video (Part 1)
Video (Part 2)
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.
Mr Simon Tebele, Executive Manager in the CEO Office in Public Protector South Africa (PPSA) was led through his testimony as provided in his affidavit by the evidence leader, Adv Mayosi. His current role and his previous positions in the Public Protector’s Office (PPO) were detailed. On the Vrede Dairy investigation, Mr Tebele did not recall discussion on the Gupta Leaks and the decisions taken on the Gupta Leaks. The evidence leader pressed Mr Tebele and asked if he recalled having a discussion with Mr Ndou, who told him to drop the Gupta Leaks, at the request of the Public Protector. Mr Tebele said that he did not recall that conversation. Mr Tebele was asked to elaborate that in certain meetings, the Public Protector would reprimand employees when deadlines were not met.
Mr Tebele was then cross-examined by the Public Protector’s legal team. Adv Dali Mpofu went over Mr Tebele's role in the PPO; the leadership and management style of the Public Protector; if Mr Tebele had ever felt victimised, harassed or intimidated by the Public Protector. Mr Tebele replied that he had never felt harassed by the Public Protector.
Mr Tebele was questioned by Committee members who asked about his previous relationship with the Public Protector as it was revealed that they had known each other since attending university. It was also asked how easy it would be for the Public Protector to remove information or content from investigative reports, without the quality assurance unit being made aware.
Chairperson: Welcome the Public Protector, Busisiwe Mkhwebane, the legal team of the Public Protector led by Advs Mpofu and Shabalala. Welcome the evidence leaders, Adv Bawa and Adv Mayosi, members of the media joining us, the entire support staff of the enquiry and last but most importantly, those who watch us – those who brought us to be here as Members of Parliament. Members of the public who have had a keen interest from day one participating in the YouTube Parliamentary streaming, as well as 408, we welcome you as you follow us. We also follow the comments you're making about the process. You're welcome. Thank you very much. I'm now going to indicate your timelines for the day. Immediately after I have spoken I’m going to allow Adv Bawa and Ms Fatima Ebrahim to introduce the witness and the evidence will be led by Adv Bawa and Adv Mayosi until 12. From 12, we will proceed to cross-examination by the Public Protector legal team until three. Thereafter Members will interact with the witness. Just before, Hon Mahlaule and Hon Nkosi.
Mr M Mahlaule (ANC): Thank you very much Chair and greetings to everyone. It shouldn’t be a punishment to be physically and not virtually present. It's very, very cold, Chair, please. Thank you.
Chairperson: Thank you Hon Mahlaule. We will tell them to switch it off . Thank you, Hon Nkosi.
Mr B Nkosi (ANC): Thank you. Chair, I want to make two requests with regards to yesterday's Mr Mahlangu, Mr Mahlangu indicates that in his tenure, he achieved clean audits in the PPSA. My calculation was that he was there for less than two years. He joined after the conclusion of financial year 2017/18 so he definitely was not responsible for 2017/18. He would have been responsible for the 2018/19 budget, which started in June. He was implementing 2018/19. He would have started the 2019/20 budget [until January 2020]. I am requesting records to clarify which particular year he did receive a clean audit. Secondly, I am requesting the Secretariat to provide us with a record of the hearing from his previous employment, so that I'm able to trace how the disciplinary committee arrived at a decision to find him guilty. Those are my two requests, Chair.
Chairperson: Thank you. They have noted those requests about the annual report in relation to issues of clean audit and the hearing records of the previous employment. Is that what you want?
Mr Nkosi: Yes, from Land Affairs.
Chairperson: That's fine. The requests are noted and we will follow that. I did not see your hand. Do you want to speak, Adv Mpofu?
Adv Dali Mpofu: Yes, I'm sorry Chairperson. I should have raised my hand. Good morning Chairperson and Honourable Members. Just on those issues very quickly. Just wanted to advise the Honourable Member that the financial year for Public Protector does not start in June. It starts in April but also to check what is the relevance of some hearing at Land Affairs, here? But that's for you. The second question will be on your shoulders, Chair, but the first one is just for information.
Chairperson: Thank you, Adv Mpofu. I get your point. This would not be the first request. Members would have before requested different forms of information. When they do that I stand back as a Chair from questioning their relevance. I provide. But if it has to come to the inquiry, that's when I switch onto the relevance. But giving them information, I don't get into that space. But I'm watching in terms of when we in the inquiry, whether any of those issues are going to be relevant to the motion. Rest assured, we attend to those issues. Thank you, Adv Bawa.
Adv Nazreen Bawa: Chair, Adv Ncumisa Mayosi is going to be dealing with this morning’s witness.
Chairperson: That's fine. Thank you, Ms Fatima Ebrahim.
Witness: Mr Futana Simon Tebele
Ms Fatima Ebrahim, Parliamentary Legal Advisor: Thank you very much. Good morning, Chair and Members. Chair, I just wanted to mention that the Annual Reports are available in Bundle F that the members have. It's number one to six of that bundle if Members would want to go and read those annual reports. Is the witness on the platform? If you could please switch on your camera.
Adv Mayosi, Evidence Leader: Chair, the name of the next witness is Mr Futana Simon Tebele.
Chairperson: Futana Simon Tebele is our witness today. Mr Tebele, can we hear your voice?
Mr Futana Tebele: Morning, Honourable Members. I'm here.
Ms Ebrahim: Okay, thank you Chair. Mr Tebele, can I please ask that you state your full name for the record?
Mr Tebele: Thank you. Through you, Chair, my name is Futana Simon Tebele.
Ms Ebrahim: Mr Tebele, you have been invited subject to the provisions of Section 16 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004 to appear before this Committee as a witness and to answer questions in respect of the Committee's enquiry into the removal of the Public Protector, Adv Mkhwebane. Please be informed that by law you are required to answer fully and satisfactorily all questions lawfully put to you or to produce any documents that you're required to produce in connection with the subject matter of this enquiry, notwithstanding the fact that the answer or the document could incriminate you or expose you to criminal or civil proceedings or damages. You are, however protected in that the evidence you give under oath or affirmation before a House or Committee may not be used against you in any court or place outside of Parliament, except in criminal proceedings concerning a charge of perjury or a charge relating to the evidence or documents required in these proceedings. Please be aware that in terms of section 17(2) of the Powers Act, a person who wilfully furnishes a House or Committee with information or makes a statement before it which is false or misleading, commits an offence and is liable to a fine or a period of imprisonment not exceeding two years. Mr Tebele, I'm now going to ask you to please take an oath or to affirm that the evidence you're about to give is truthful. Which do you prefer, the oath or affirmation?
Mr Tebele: I will take an oath.
Ms Ebrahim: May I please ask that you raise your right hand and repeat after me? I swear that the evidence I shall give shall be the truth, the whole truth and nothing but the truth. So help me God.
Mr Tebele: I swear that the evidence I shall give shall be the truth, the whole truth and nothing but the truth. So help me God.
Ms Ebrahim: Thank you, sir. Chair, the witness is now duly sworn in.
Chairperson: Thank you, Ms Ebrahim. Thank you to you, Mr Tebele and welcome to the enquiry. The enquiry is now in session, Adv Mayosi.
Adv Mayosi: Thank you, Chair. Good morning, Mr Tebele.
Mr Tebele: Good morning, Adv Mayosi.
Adv Mayosi: And good morning, Honourable Members. Mr Tebele, you made a statement for these proceedings, correct?
Mr Tebele: Yes, Adv Mayosi and Honourable Members.
Adv Mayosi: I'm going to take you through the statement that you made. We won't deal with the statement line by line or paragraph by paragraph, but we'll just deal with some of the salient features of that statement. Okay.
Mr Tebele: Thank you.
Adv Mayosi: Can I ask you to put it up? It's in Bundle D and it's item nine. Mr Tebele, you’re currently employed at PPSA as Senior Manager: CEO Support in the Office of the Chief Executive Officer, correct?
Mr Tebele: Correct.
Adv Mayosi: Can you explain to the Committee what your job entails and who you report to?
Mr Tebele: Thank you, Adv Mayosi, Honourable Members. I currently report to the Chief Executive Officer in the Office of the Public Protector, that is Ms Thandi Sibanyoni. My role in the Office is to assist the CEO in the management of the institution, the CEO as the accounting officer. I conduct quality assurance of documents that get into the CEO's Office. Those documents, ultimately, most of them will go to the Private Office, which is the Office of the Public Protector. I assist the Office of the CEO in monitoring the performance of the institution in as far as the annual performance plan is concerned. I act as the secretariat of the meetings that are organised by the Office of the CEO, which is Exco and Manco. I ensure that the resolutions taken in those meetings are followed up and implemented. I also facilitate the organisation of those meetings within the Office. I manage the budget in the Office of the CEO, together with its expenditure assisted by my finance. That is in brief the role of my position in the CEO’s Office.
Adv Mayosi: You're a lawyer by professional qualification, right?
Mr Tebele: Yes.
Adv Mayosi: You say in your statement you've never practised as an attorney, but that you were a prosecutor for a brief period in the early days. Correct?
Mr Tebele: Correct.
Adv Mayosi: Can you tell the Committee a little bit more about your work experience before you joined the PPSA?
Mr Tebele: Thanks Adv Mayosi, through you Chair and members. I started my career as I indicated, that was for the short brief as a prosecutor. After that, I joined the Department of Finance. In a division that was called then Inland Revenue. Inland Revenue is what is now called SARS. That was before it became SARS. I was dealing with special cases on the income tax court roll. We were preparing cases for the Receiver of Revenue that we were going to seek. We were also dealing with administration of estates because during that time, the South African Revenue Service had a stake in terms of administration of estates. We would calculate what was owed and submitted to the executor of the estate. When the organisation was formed in 1996, I was requested by the then Minister, Minister Alec Erwin if I remember well to remain in the Department of Finance. A unit was established called the Tax Policy Unit. That is where I was within National Treasury, because I joined before National Treasury was formed in 1999. Then within National Treasury, I performed functions of tax policy, doing research and advisor on policy, participating in the budget and the tax proposals. Then I was seconded to a unit called Public Private Partnership Unit when it started around 2004. My role there was to check how public-private partnership transactions will be taxed. From there I was assisting National Treasury in entity oversight where most of the entities that were established needed Treasury. I served in the Advisory Committee of those entity oversights. Then I was in Treasury for a period of about 15 years. Then I moved to Limpopo Treasury. That is where I was based I think around 2007 as a Chief Director. Then I went to its Department of Transport, when the province was put under administration, to assist with the administration in that Department. That is where I left to join the Public Protector in 2017. Thank you, Honourable Members.
Adv Mayosi: So you joined the Office of the Public Protector in June 2017, correct?
Mr Tebele: Correct.
Adv Mayosi: And the position you occupied then was Senior Manager Executive Support in the Private Office. Is that right?
Mr Tebele: Correct.
Adv Mayosi: You reported to the Chief of Staff, who was also in the Private Office. Is that right?
Mr Tebele: Correct.
Adv Mayosi: So can you explain for us Mr Tebele, when you say Private Office, what do you mean? Who does the Private Office consist of?
Mr Tebele: Thank you Adv Mayosi, through you Chairperson, the Private Office within the Public Protector South Africa refers to the office where the Executive Authority sits. That is the Public Protector and the Deputy Public Protector. It refers to the staff that is responsible to support that Office. So we have an Office of the Private Office, which is almost distinct from the Office of the Accounting Officer. All the staff supporting the Public Protector and the Deputy Public Protector, they are part of Private Office. I have found the name there, then I got to know it as such. Thank you.
Adv Mayosi: So you said the DPP forms part of the Private Office?
Mr Tebele: Yes, the executive authority because in terms of our understanding, both the Public Protector and the Deputy Public Protector, are the executive authority. They both form part of the Private Office.
Adv Mayosi: So what support did you give the DPP, one? And secondly, what role did the DPP play in the organisation?
Mr Tebele: In terms of the structure that I found there, I mostly work with the Public Protector. The Deputy Public Protector heads support staff in terms of the investigations that were assigned to him because, in terms of my understanding of how the Office works, the Public Protector would delegate certain responsibilities to the Deputy Public Protector. The Deputy Public Protector with the staff that was assisting him which was mainly in investigation – they will deal with that. My role was as an entry point into both Offices. When submissions are made to both the Public Protector and the Deputy Public Protector coming from the investigation team, we will be the first to receive such information. After we have dealt with the information, then if it belongs to the Deputy Public Protector we will send it through to the Deputy Public Protector. If it belongs to the Public Protector, we will reroute it that way. So the responsibilities of the Deputy Public Protector were mostly assigned through the Public Protector with the delegations.
Adv Mayosi: You say in your statement in October 2018 you were requested to act in the position of Executive Manager: Corporate Services, right?
Mr Tebele: Correct.
Adv Mayosi: As Executive Manager: Corporate Services, you managed various divisions including Legal Services, HR, ICT and Security Management. Correct?
Mr Tebele: Correct.
Adv Mayosi: Now, Mr Baldwin Neshunzhi was the Senior Manager responsible for security from April 2017 until July 2019, is that right?
Mr Tebele: Correct. Although I may not get the dates correct.
Adv Mayosi: According to him, and he will testify of this to this Committee, he was moved from the position of Senior Manager responsible for security with effect from 1 August 2019. He was moved into the position of Senior Manager in another branch, Customer Service Management. Do you recall that?
Mr Tebele: Yes, I recall that.
Adv Mayosi: He will say when he testifies that he didn't apply for this position. He did not at that stage have any experience in the matters that the Customer Service Management branch dealt with. Can you explain to the Committee why Mr Neshunzhi was moved from Security to Customer Services?
Mr Tebele: Through you Chair, what I will say is what I know. Not that I actively participated in it. When Mr Neshunzhi came back from, I will call it, the suspension, there was a report which I did not have preview to. Apparently in that report, there was a recommendation that he be moved. I haven't seen the report. But I was approached by the former CEO, Mr Mahlangu. He said to me, because of the role that Mr Neshunzhi was playing in security, and the current cloud that is there in terms of leaking of information; he deemed it best that he be moved out of that portfolio so that somebody can come and manage that portfolio. Mr Mahlangu is saying the information security that Mr Neshunzhi is responsible for, he could not handle it the way that it needed to be handled. There were areas in which they needed to check which place, which area was he best suited to. I remember when he came back, I also indicated to him that ‘the leadership is of the view that you be moved from the office of the security to another area’. At that time, there was an opening in the unit called CSM and Mr Neshunzhi was moved to CSM to be responsible, I think, for intake and assessment. That is how far I understand the situation of Mr Neshunzhi. Indeed, yes he did not apply. For operational reasons he was moved to that area. That is what I got and that is how Mr Mahlangu our former CEO consulted me on it because he requested me to consult Mr Neshunzhi with that offer, which I did.
Adv Mayosi: So the report that you're referring to and which you say you were not privy to, is that the Diale Mogashoa report?
Mr Tebele: Yes, there was an investigation in terms of the leaking of information within the institution. That company was responsible to do the investigation. The reason I'm saying I was not privy to the report is because during their investigation they took certain laptops, which they needed to check for whatever information they needed to check. My laptop was also amongst those that were taken. I requested that I don't participate in the work that they do due to the fact that I could have been also the one that is being investigated, because my laptop was also taken. Thank you.
Adv Mayosi: Now Mr Tebele, when the evidence leaders first met with you, we explained to you that we were tasked with leading evidence in this enquiry as a result of a motion in which allegations are made against the PP. We also explained to you that those allegations of incompetence and misconduct arise from the report in the Vrede matter. Do you recall our discussion in that first meeting?
Mr Tebele: Yes, I recall the discussion.
Adv Mayosi: We then told you that the motion also included an allegation about the PP having intimidated, harassed and victimised staff or having failed to protect staff when they were victimised, harassed and intimidated by Mr Vussy Mahlangu. Do you remember that?
Mr Tebele: Yes, I remember.
Adv Mayosi: Then we asked you to share whatever information you had in relation to those aspects, whatever direct knowledge you had. Now, let's start first with the CIEX report, because I think it's easier to dispense with in your case. Given that you started at the PPSA on 1 June 2017 and the final CIEX report was issued later that same month, were you involved at all in this investigation and report?
Mr Tebele: When I joined the institution, the investigation I would think that it was at the end. Because my first interaction with knowing about the CIEX was in a meeting as I was part of the Private Office. I was in a meeting where the investigators were briefing the PP in terms of the report. My role in the report, because I was not there when the investigation was done, was mainly to deal with the editorial part of the report leading towards the report being issued. But I've never dealt with really the investigation of that report, except the editorial aspect of the report. Thank you.
Adv Mayosi: Now turning to your affidavit, and I'll deal with the themes that you discuss in your affidavit, starting with the description of the task team which you do from paragraph six to eight. You describe a structure called the task team, which used to hold meetings every Friday and chaired by the PP initially. You say that the main purpose of that structure was to check on progress in producing reports and issuing notices. My question to you, was the substance of investigations discussed at task team meetings or was it limited just to monitoring timelines and the progress of meeting those timelines?
Mr Tebele: When I joined the Private Office the first meeting, besides the introductory meeting which I had with the Public Protector and the Chief of Staff, the first meeting was with a team called quality assurance, which was based in Private Office. It was assisting the Public Protector in the reports. So quality assurance, they were part of what we called a task team. A task team was a committee that was sitting every Friday. The committee was chaired by the Public Protector. What was appearing on the task team agenda was mainly reports or investigations that have reached section 7(9) stage or investigations that have already reached report writing stage. Those types of investigations, they will come and serve in the task team for the quality assurance team to go through them and to advise the Public Protector. During those meetings, the quality assurance team would also deal with the content of the section 7(9)s and the content of the reports during those meetings. They will engage the investigators respectively, through the leadership of the Public Protector who was chairing those meetings. Yes, contents during those meetings would also be dealt with because the quality assurance team would go into each and every paragraph, read the whole section 7(9) or the report and give you their views and inputs. If the report needed to go back for correction, it will go back for correction. Thanks Chair.
Adv Mayosi: So you say you were involved in this quality assurance process for task team. My question is, before performing the QA function for test team, what was your previous experience in quality assurance?
Mr Tebele: In my career I've dealt with a lot of documentation in terms of quality assurance. To be specific in National Treasury I was the co-author of chapter four of the Budget Review when we were doing tax proposals. Most of the team members within the tax policy unit had their own way of drafting into that. I used to serve in National Treasury in terms of quality assuring those budget documents before they were submitted. Even previously in my working career, I have been going through different documentation in terms of quality assurance. The assurance in the Public Protector, it was a different one in the sense that they had a specific template that they were following in how they were doing their report writing. So that is why my initial involvement was mostly on the editorial part and not much to do with the content. To the extent that I will find something amiss in the content then I will also engage the investigators in terms of the content. But I had done a lot of quality assurance documentation in my career, in my previous lives. Thanks.
Adv Mayosi: Alright, we've already covered your previous positions that you occupied. If we can go to the next section of your affidavit that deals with Ms Molelekoa and Adv Matlawe. You describe tensions that arose in the Private Office, between Adv Matlawe and Ms Molelekoa, who was then the Acting Chief of Staff, in paragraph 11. This is when you were still in the Private Office, right?
Mr Tebele: Correct.
Adv Mayosi: Can you very briefly, for the benefit of the Committee, tell us in greater detail what the cause of the tension between them was?
Mr Tebele: This will be my observation as I was part of the team. The quality assurance team, which was based in the Public Protector's Office by virtue of the Chief of Staff being the most senior person in that office. They were reporting through the Chief of Staff to the Public Protector. The Public Protector had a direct link with the quality assurance team. But in terms of managing the documents and information that is flowing, they were submitted through the Office of the Chief of Staff and myself. In doing our work, we will look at the documents and where we have things to question then we will question the information. When Ms Molelekoa was trying to question certain information in terms of how she understood certain things. Then there was this, I would call it this office acrimony, of saying that this person is not a lawyer. Why would this person look at our work? And I think it went to the extent where they started raising the issue of her not having the legal qualification and not fit to quality assure their reports. While that was not the first in terms of people not being happy. When the quality assurance team was assisting the Public Protector, executive managers also started seeing themselves almost like reporting to juniors. That is how the whole thing panned out. From my observation that is where the disagreements started and Mr Matlawe was very much vocal about the dissatisfaction and that is how I have seen it unfolding. Thanks.
Adv Mayosi: So in paragraph 14 onwards, you describe the worsening of relationships when Mr Matlawe didn't turn up on a weekend when he was required by the PP to attend and quality assure the CIEX report. Can I ask, was it expected that employees make themselves available for work on weekends?
Mr Tebele: Mostly people are not expected to go to work over the weekend. But if a request is made and people indicate their availability, that can be accommodated for operational reasons. I remember Public Protector asking that because of time, the report needed to be finalised and there was a request to the quality assurance team. I can't remember whether it was all of them but Mr Matlawe being the lead of the quality assurance team we were requested to come. I think it was leading towards a holiday of June 16. I can't remember. We were requested to come on a day that was not a work day. We agreed that we will come. Indeed, we came on that day. Mr Matlawe did not pitch on that day but he was expected to come because he never indicated his commitment on that particular day. So to summarise, it is not generally expected for people to work on weekends but for operational reasons, people could be requested to work on weekends. If they agree, it will happen. I remember that under the circumstances, they agreed and other members pitched up but he did not pitch up on that specific date.
Adv Mayosi: Linked to this, possibly this requirement to work on weekends, which you say was not generally there unless agreed to by employees. Some witnesses will come and testify that the taking of leave was frowned upon in the organisation. That leave was often cancelled or refused. Can you comment on this?
Mr Tebele: Although I may not be specific in terms of specific circumstances but it is a general practice that leave when you request it, the person who needs to approve your leave looks at the operational requirements. Whether the operational requirements on that day that you want to take leave, do allow. In certain instances, the supervisor can say because of what is facing us and the deadlines and all these other issues that might be prevailing under those circumstances, leave can be denied. I'm not sure if when leave is denied, the frowning upon of the leave. I really can't comment on it. But I know that a supervisor can deny somebody's leave due to operational reasons. That can happen.
Adv Mayosi: So in paragraph 17, you talk about Ms Molelekoa then moving from the Private Office and back to her position of Manager: Customer Services. Why was she moved from the Private Office back to her original position?
Mr Tebele: This incident happened quite a while ago. But what happened is the first move that happened is quality assurance was moved out of the Public Protector's Office in terms of it now going back to the executive managers because the Public Protector said everybody is responsible for quality assurance of their particular report. The work of quality assurance is no longer going to reside in Private Office. Respective members of the quality assurance team were moved to different branches within PPSA in terms of investigations. The lead who was Mr Matlawe was also moved. If I remember well he was moved to report to the Acting COO, Ms Molelekoa, during that time. That is where the work was placed with Ms Molelekoa due to certain circumstances that I really don't have much information on except that there were media inquiries in the space and media reports. I would also recall in one of the meetings that the Public Protector was addressing Parliament, certain members wanted to understand the role of Ms Molelekoa. I would think that that was the reason why the Public Protector felt that it will be proper for Ms Molelekoa to leave the office and the quality assurance team also to be moved elsewhere. That is just my observation. I was not part of how the real move happened. But I know she was moved and she was moved back to, I think, an original position that she had before her acting. Thanks.
Adv Mayosi: Mr Tebele, you've already alluded to the leaking of information and the investigation that resulted from that leak. This is the investigation where Adv Matlawe, Mr Neshunzhi and Mr Kekana were implicated or investigated. Is that correct?
Mr Tebele: The investigation from my understanding started as the leaking of information. The reason maybe Mr Neshunzhi was singled out was because he was the one that was responsible to communicate with SSA, who were responsible to conduct vetting on our staff. So that particular one, because I think it involved the outcome of the security clearance of the CEO. Then the CEO felt that there is a risk in the organisation. But when the investigation started, it did not pinpoint Matlawe and Tebogo [Kekana]. But the person who was the suspect in terms of leaking the information, because the feeling was that he was the custodian of that particular information and nobody else should have known about it, was Mr Neshunzhi. It was after the investigation that I think the others were involved in the investigation, or Mr Matlawe and Mr Tebogo Kekana. It was as a result of the investigation itself. I don't recall that when the investigation started they were part of the of the people suspected to be having the information, maybe during the investigation.
Adv Mayosi: Thanks, Mr Tebele. In the next section of your affidavit, and we’ll spend a bit more time on this section. This is section D, where you've titled it ‘Reporting, investigations, backlog and the PP’. You describe the working environment in the Office of the PP. You describe it in various ways throughout this section. I'm just going to pick some of the paragraphs where you describe it and ask you to elaborate. Safe to say that I think it's appropriate to point out, upfront, here and just confirm that this is your evidence that you yourself, have never been intimidated, harassed or victimised by the PP, correct?
Mr Tebele: That's correct.
Adv Mayosi: And that you have never seen the PP intimidate, victimise, harass employees nor have you seen the former CEO, Mr Mahlangu do the same. That is your evidence. Is that right?
Mr Tebele: That's correct.
Adv Mayosi: Going back to the beginning of this section. Paragraph 21, where you describe the working environment as highly charged and demanding. Can you elaborate please on what you mean by that?
Mr Tebele: I am not going to beat around the bush in terms of the demand in the Office. Because I have seen it in many meetings that I attended and I have seen people falling short of giving what is supposed to be given. The work in the Public Protector, yes, it's demanding on its own. I think what compounded the problem is a lot of cases that were with the teams had aged, which means they would have passed the time in which they were expected to have finalised them. The Public Protector wanted to deal with those cases and they were named backlog cases. The backlog cases, in terms of my understanding, are those cases in terms of the timeline that they were supposed to have been investigated, they have passed their timeline. The emphasis that the Public Protector always had during these meetings was, put yourself in the shoes of the complainant. Tell me if you submitted this complaint in the Public Protector and this particular complaint remains. The emphasis from the Public Protector was that she needed real service delivery to be done and to be done complete. As such she emphasised that people should follow the standard operating procedures in dealing with investigations. I would think that she was really not happy with the backlog that was sitting in the Office and things not moving. Let alone the fact that during the investigations, there are complainants which would directly talk to the Public Protector about their dissatisfaction. So in her trying to deal with the backlog that was there in the organisation to reduce it to the level where investigators can now deal with investigation at their own pace, without anybody following them. She put up a lot of programmes in trying to deal with that. That in itself put a lot of pressure on the investigators. The Public Protector demanded investigators to give deadlines in terms of the work they were doing. I would even remember her saying that, ‘You guys, you're always saying that I give you deadlines. This time I don't want to give anybody deadlines. I would want you guys to give me deadlines. But once you give me a deadline, you must adhere to that deadline’. Most of the deadlines that would have been given could not be adhered to. I would remember because I was recording those deadlines. There will be matters where you find that a deadline was given in February. Maybe even up to today, for example, the deadline has not yet been met. So you can imagine on a meeting that is happening every Friday, where you need to be asked about the very same information and you keep on shifting the goalposts. From my understanding and observing how the Public Protector worked, she did not take kindly the deadlines not being met. In an institution where you have more than 160 people investigating, you can imagine how many deadlines will be there. How many of them will not be met. As such, the work itself demanded more and the executive authority demanded outputs.
Adv Mayosi: You then say in paragraph 23, that this backlog clearing initiative then created quite a lot of pressure within the Office, as you've just described it. But you also say in paragraph 23 that before the appointment of the CEO, the executive managers responsible for investigations reported directly to the PP and that might have exacerbated a highly pressurised atmosphere. Why did the fact that the EMs reporting directly to the PP exacerbate the pressure?
Mr Tebele: Maybe this may not have been put correctly but before the arrival of the Chief Operating Officer, all of the EMs were reporting directly to the Public Protector. The way that the structure was, the Public Protector could interact with investigators directly even if she doesn't need to go through their executive manager. Because in the meetings that I attended that the Public Protector was chairing, EMs and their teams were attending those meetings. In most cases information will be demanded from an investigation member in the wake of the Public Protector saying to the EMs, "But guys, why should I go and deal with your juniors when you are there, because you're not giving me any reason not to deal with your juniors. Now, I have to deal with the juniors when you are currently there". So that is the environment that existed. I felt that because the juniors did not see themselves in a meeting with the Public Protector. During those interactions, I would feel that they were beginning to feel like they're being intimidated to be in that meeting. But I think when time goes by, they got used to the situation where they were beginning to present to the Public Protector and also their EMs being available. It was that type of a scenario where I believe that as a junior, once you start seeing yourself closer to the executive authority you start to feel that you are much exposed because you thought your senior should speak on your behalf. But the environment in the Public Protector is the Public Protector can call each and every person without the rank in the investigation and just demand outputs and demand why things are not moving. That I have observed. I think I'm not the only one; those investigators can say they have observed it. That is what happened. That is what brought everybody closer to the Public Protector and to the extent that she knew which investigator is dealing with which matter at any given point.
Adv Mayosi: The way we understand the structure, investigators reported to their executive manager, which you confirm was the case in paragraph 24. But you also say in paragraph 24, that investigators reported to the PP directly, as well. When did they report to the PP directly, as opposed to the executive managers?
Mr Tebele: During the meetings that the Public Protector would be chairing, in terms of checking how far the investigations are. Those investigators will directly account in terms of the work that they were doing. That is basically what I wanted to mean in this paragraph. They would not go through the ranks until the EM. But the reports that would have been produced would still have to go through their senior investigators, their executive managers, the COO and back to the PP. But in terms of checking how far is this type of investigation, PP would also go and request information from the investigators themselves. That is what I wanted to say in terms of accounting for the work and the update that they will do that, although the production of the information would still go through all of those EMs. That is what I was trying to capture in this paragraph.
Adv Mayosi: So the Vrede matter is one of the matters that form part of the motion that this Committee is seized with. Were you involved in the Vrede matter at all?
Mr Tebele: The Vrede investigation, I was not really involved in the investigation because I think when I came in the investigation could have been in the Free State. When it came to the Office, I was really not part of the investigation. But what I remember was there was an opinion, I think, that was done. Because in the Vrede project, there was this talk about a public-private partnership between the companies that were involved. I remember an opinion that the Vrede investigation, we need to check if there was a public-private partnership in that project. If I recall it was Mr Nemasisi, who provided the opinion, I may be wrong, but I think it was Mr Nemasisi who was the Senior Manager: Legal Services during that time. Because of my exposure and knowledge in terms of PPPs, he requested me to check the opinion on the public-private partnership. From the opinion that I saw and from the information that I gather from the Public-Private Partnership unit in National Treasure. During that time the project was not registered as a public-private partnership project. As such, it did not meet the criteria of public-private partnership as espoused by section 60, regulation 16 of the PFMA. That was my involvement in trying to see if the project is indeed a public-private partnership. I said, ‘No, it's not a public-private partnership’. I agreed with the opinion that was given. But the investigation itself, I was not involved.
Adv Mayosi: Mr Ndou is going to give evidence in this process. One of the things that he will talk about in relation to the Vrede project is that the PP said that the Gupta Leaks must be excluded or were not part of the investigation. Do you do recall being involved in discussions at all in relation to the Gupta Leaks and Vrede?
Mr Tebele: I don't recall the discussion about the Gupta Leaks and the decisions taken around the Gupta Leaks, in as far as the investigation itself is concerned, that I cannot recall.
Adv Mayosi: So you don't recall a discussion you may have had with Mr Ndou, where you told him to drop the issue about the Gupta Leaks?
Mr Tebele: No, I don't recall that. My role in the task team was mostly to take those resolutions that get taken but the issue of discussing the Gupta Leaks, I don't even remember it in as far as the Vrede farm is concerned. I know the Gupta Leaks from the media that it has been expounded. But I don't have any specific reference to Gupta Leaks in as far as Vrede is concerned or the meeting that I would have had with the Public Protector in which the leaks were discussed. No, not of my knowledge or recollection.
Adv Mayosi: So in paragraph 29, you describe some more what used to happen at certain meetings. You say in the first sentence and I'd like you to elaborate for us what you say in that first sentence. That you've seen the PP reprimand employees when deadlines they undertook to meet, were not met. She may well have raised her voice when work was demanded from you. Can you tell the Committee a bit more about that Mr Tebele?
Mr Tebele: I think in my explanation I have touched about on this but I will repeat for the purpose of clarity. In the meetings that I have said where work was demanded, yes, PP would talk about the investigators ignoring their commitments in what they have committed themselves to. That is the point that would have been emphasised throughout in the meetings. To say, what is the use of you giving me a deadline and you go and not meet the deadline. I will remember specifically her saying that, ‘Don't tell me what you think I need to hear about this investigation. Tell me what you are able to produce’. During those meetings, yes, you could see with the sign language that the executive authority was not happy with what is happening. At some point, you will feel that a particular investigator is being hammered for the work that is not properly done. In PPSA, you have investigations that have been sitting for a long time and nothing would have moved. In those meetings, yes, I was there. I would have heard those because I used to be the scribe of Dashboard meetings which was chaired by the Public Protector in demanding or looking at investigations and how far they are. In those meetings, I would have heard the PP’s voice showing frustration and maybe agitation in terms of the demands that she wanted of the outputs and those outputs not coming. To me I took it that it is because the work is not forthcoming. Maybe that is why the executive authority reacts the way that she reacted during those meetings. Thanks.
Adv Mayosi: Some of the witnesses will testify that one of the ways in which their harassment and victimisation manifested was during Dashboard meetings, through the PP compelling them to agree to unrealistic deadlines. Did you observe this at all?
Mr Tebele: My observation is in most of our meetings deadlines were given. Either deadlines would have been given by the investigators or deadlines could have been given by the executive authority, even if I won’t be specific in terms of which matters because we dealt with a lot of matters. But I cannot comment about the reasonableness or the unreasonableness of those deadlines, because in most cases you find that this matter has been here for three years. The investigators still need more time when the matter has already passed its life. The investigator still needs more time. I wouldn't want to comment on the reasonableness or the unreasonableness of the deadlines because deadlines were given under a certain context. That is all that I can say. Because it's very difficult to say what is a reasonable deadline, if a deadline passed, and what is an unreasonable one. But yes, those deadlines given, others will not adhere to and not even once, maybe twice or three times. So it did happen. I wouldn't know why. Maybe they felt that they were harassed by those deadlines. Maybe those particular investigators could give the evidence in terms of the context under which they felt the unreasonableness of the deadlines. Thanks.
Chairperson: Thank you Mr Tebele. Before Adv Mayosi continues, just assist us and yourself. Maybe you can put your phone on silent. So that you also stop the vibrations, because there's a lot of that next to you. We’re not saying switch it off as you will need it. As calls come in or messages come in, it's better when it is on silent. Thank you.
Mr Tebele: Thanks Honourable Chair, my apologies. It was on silent. Maybe it is because it was closer. I've put it away.
Chairperson: Thank you.
Adv Mayosi: If you turn to paragraph 37 of your affidavit, you say that all the reports that are provided, are read by the PP. If they are not in order, they're sent back to be brought up to standard and corrected. What you're saying there and correct me if I'm wrong is that the PP will not attach her signature to a final report that she's not satisfied with, correct?
Mr Tebele: The knowledge that I have of the PP is she reads the reports and I've seen it in many instances where reports were sent back one way or another. But yes, she does read the reports. That is what I can attest to.
Adv Mayosi: And she has the final say, is that right?
Mr Tebele: Yes, in terms of the report being finalised and issued the executive authority has the final say.
Adv Mayosi: If I can take you now to paragraph 44. In the third sentence of that paragraph, you're still talking about the pressures around finalising the backlog and so on. But you say in the third sentence that you don't dispute that the work demands may have been perceived to be unreasonable. However, this wasn't caused by the PP but by circumstances in wanting to ensure that complainants’ complaints were reasonably and timelessly dealt with. Can you elaborate a little more about which aspects of the demands may have been perceived to be unreasonable? What do you mean by this?
Mr Tebele: I would have talked about this in one of my explanations. The demands of the backlog, we also have to projectise the backlog. Sometime last year, the Office of the CEO was requested to assist the Office of the COO to projectise backlog cases. In that project timeline, we had the end of September as the time in which all the cases that were in the backlog should have been finalised. There were a lot of cases that were still there. And a lot of old letters that were there. There was a rigorous follow up in terms of those reports being finalised. During those follow ups, the investigators would know that there were deadlines that were given specifically to those projects. They were specifically requested to prioritise and deal with the projects not as business usual, but as business unusual, so that the backlog can be dealt with. After September 2021 investigators will then have time to deal with all other matters. There were a lot of timelines that were given in respect of those projects. Each and every investigation had its own timeline. All the people that were involved in that project, which was managed by the Office of the COO, assisted by the CEO, all have timelines. There were a lot of bad months in terms of their time, in terms of the quality. That is how I'm reflecting on this paragraph. So the pressure was still not anything new. It was because the matters were old. It was because the complainants were complaining. It was because the executive authority felt that we are not giving the complainants good service. As such, the institution itself, people may not have, you know, I don't know how to put it, may lose confidence in the institution. I think that is what the executive authority wanted to say. But in doing that, all those projects, they have their own timelines there. But the main thing was their deadline and they needed to be finalised by September 2021. Everything was around that one. This also relates to the quality that needs to be produced. Also relates to the interaction by those investigators with the complainants in terms of the standards that the Office has to contact the complainant within a specific time; you need to do this. Those were the demands in terms of the timelines that I was trying to indicate in paragraph 44.
Adv Mayosi: Right, taking you to the end of your affidavit where you deal with the audi alteram letters, which has come up somewhat in the testimony of the previous witnesses. You yourself say you received an audi letter. You say this in paragraph 49. You say in paragraph 50, that when these audi letters were issued it was because deadlines were not met, promised reports were not delivered. Some witnesses will say that this issuing of audi letters in the manner in which they were issued contributed to what they will describe as a culture of fear in the organisation. Can you comment on this?
Mr Tebele: My comment was not based on what I know from those people that will be testifying. But my comment will be based on the implication of an audi letter. Yes, as I indicated I did receive an audi letter. And to me, I was shocked to receive an audi letter because it would have been the first time I think in my career where I received an audi letter. So it shocked my system but I understood the circumstances under which the audi letter was given. In PPSA, there were audi letters that people would talk about. I think people said they were complaining about audi letters. But I wouldn't know in terms of the fear that it created with them. I can talk about my own experience, because an audi letter becomes the first step in a disciplinary process. So when you get an audi letter at some point you start to think that my job is on the line. I may be fired because it's the beginning of a disciplinary process. So under those circumstances, I would think that, yes, they could have been fearful without knowing the exact way in which they felt. I'm talking about an audi letter which is a first step of a disciplinary process. Because without an audi letter, it means you're not going to be disciplined. But once you start getting it, it means you are beginning a process where you might face a disciplinary hearing and then you never know what will be the end of that. So under that circumstances, yes, people could be fearful about an audi letter. But I'm not talking about those people in terms of how they have indicated in their affidavits. But what I know an audi letter to be in terms of an HR process. Thanks.
Adv Mayosi: So Mr Tebele, you stand by the contents of your affidavit, correct?
Mr Tebele: Correct.
Adv Mayosi: It was drafted with the assistance of the evidence leaders after consultations with you, correct?
Mr Tebele: Correct.
Adv Mayosi: And in that process various drafts were sent to you for your final approval before you signed it before a Commissioner of Oaths.
Mr Tebele: Correct.
Adv Mayosi: Can I ask Mr Tebele, did you know the PP before you joined the PPSA?
Mr Tebele: Yes, I have known the PP from our university days.
Adv Mayosi: There's one final issue I want to approach with you before I let you go, Mr Tebele. Bundle F, item 69. So this relates to the to the testimony of Basani Baloyi, the former COO, is going to give. She will testify that on 18 February 2019, soon after she started at the PPSA, she received a text from the PP that reads as follows, ‘COO careful of what you hear from Pona and Tebele. But you are an adult be wise.' She of course said that she interpreted that to mean that she should not trust you. But my question to you, do you know of any reason why the PP would issue such a warning about you? Do you know what this related to?
Mr Tebele: Well, this is for the first time that I see the note. Throughout my working in PPSA and working with the Public Protector, Adv Mkhwebane, I’ve never created an environment where I believe that I would have been not trusted. But I will leave it up to the Public Protector because I wouldn't know why she said what she said if it's her who said what she said. I've always believed that she trusts me. Even today, I still believe that she trusts me; not only her but even the CEO that I'm sitting under. I see myself as a person who can be trusted in the institution.
Adv Mayosi: Thank you, Mr Tebele. Chair, I have no further questions for this witness.
Chairperson: Thank you, Adv Mayosi. Mr Tebele, just to get a clarity quickly from you before I proceed to the next point. Did I hear you say it's the first time you see this note, Mr Tebele? Please Adv Mpofu don’t disturb me.
Adv Mpofu: I'm sorry, Chair. I thought I was muted.
Mr Tebele: Yes, Honourable Chair. I'm not aware of this note that I'm seeing now.
Chairperson: And you've never had on your phone this message?
Mr Tebele: Unless it was sent today but not before today.
Chairperson: Thank you, Mr Tebele.
Adv Mayosi: Chair, if I could clear that up? It was in fact sent to him today, earlier before the hearing.
Chairperson: You sent this note to him today, before the hearing?
Adv Mayosi: Correct.
Chairperson: Probably has not checked his phone.
Adv Mayosi: We discussed it.
Chairperson: You discussed it with him?
Adv Mayosi: Yes.
Adv Mayosi: I was warning him that that would come up so that he shouldn't be surprised.
Chairperson: Alright. Let's take it because that's what he said. He did not see before today. Am I right Mr Tebele? That could have been in the morning and so on.
Mr Tebele: Yes, Honourable Chair. It was brought to my attention today.
Chairperson: Thank you, Mr Tebele. Honourable Members, the time now is 27 minutes past 11. We’re going to take a break and be back at quarter to. We pause here, thank you.
Cross-examination by Adv Mpofu
Chairperson: Thank you. I now hand over to you, Adv Mpofu, for your cross examination.
Adv Mpofu: Thank you, Chairperson. Good morning, Mr Tebele.
Mr Tebele: Good morning, Adv Mpofu.
Adv Mpofu: How are you, sir?
Mr Tebele: I'm okay.
Adv Mpofu: Good, thank you. I'm fine too. I’m going to ask you to deal with some of the topics that you dealt with, with Adv Mayosi. Before I do that I want to start where you left off. You are sure that this SMS you were shown here, you were only shown here today, this morning, for the first time?
Mr Tebele: Yes, it was shared with me for the first time today.
Adv Mpofu: I suppose you don't know when the evidence leaders obtained it from Ms Baloyi?
Mr Tebele: No, that I don't know.
Adv Mpofu: You were not told?
Mr Tebele: No, they didn't tell me when did they obtain it. It came today, almost before the start of the session.
Adv Mpofu: A few minutes before the start of the session?
Mr Tebele: Yes.
Adv Mpofu: And were you told that it came from Ms Baloyi at least?
Mr Tebele: I was told that it came from Ms Baloyi and the according to Ms Baloyi it came from Public Protector.
Adv Mpofu: Yes. You were not told if any investigation had been done to ascertain whether indeed it came from the Public Protector?
Mr Tebele: No.
Adv Mpofu: I heard you saying in your response that if it came from the Public Protector it's surprising to you, because you always had a trusting relationship with her? Is that your evidence?
Mr Tebele: What I was indicating is I’ve always, maybe from my side, thought that the Public Protector can trust me or is trusting me and even now I still need to believe that.
Adv Mpofu: Yes, thank you. That's what I'm coming to. So despite springing this last minute SMS on you a few minutes before they gave evidence, you are not shaken in your belief that there is a relationship of trust between you and the Public Protector?
Mr Tebele: No, from what I saw the SMS is dating back, I'm not sure whether it's 2018 or 2019. Since after the SMS, I've been in the institution. I think one way or another, I would have met the Public Protector and I did not see any indication or detect anything to the contrary.
Adv Mpofu: Thank you. In any event, despite what was being said to you, there's nothing in the SMS that says the Public Protector does not trust you. Those were words that were put to you, correct?
Mr Tebele: Except the words that I saw, I didn't hear anything verbatim from the Public Protector.
Adv Mpofu: Yes. Anyway, I'm sure we'll hear something about that from the evidence leaders as to why that was the case. Just hold on one second. No, because he was surprised. It was sent to our to our team yesterday roundabout 9pm. So it was not sent to you at that time?
Mr Tebele: No.
Adv Mpofu: Or anytime last night?
Mr Tebele: It was sent today through a WhatsApp note.
Adv Mpofu: Okay, please, if you can maybe during the break, check the time that it was sent to you so that we can compare it to the time that it was sent to us and see what was the duration…the gap between the two because otherwise it is something we might have to report to Parliament as an anomaly. Be that as it may, let's not be distracted by that. Okay, maybe the last thing on that. You don't know what that conversation was about? Whether it was about a particular report or whatever or football match? You don’t know?
Mr Tebele: No, I've got no idea what was it about.
Adv Mpofu: Okay. Thank you very much. Now, you've testified that you've known the Public Protector for a long time. Is it correct that you've also known her as a hard worker?
Mr Tebele: Yes, I've known the Public Protector for a long time. If I'm not mistaken, it's more than 30 years. Knowing her from our school days, yes, I know she has been a hard worker. Knowing her from other areas that she was working, because we used to have some communication at one time. She’s always been a hard worker, that I came to know. Seeing her in action here, yes, I thought she demonstrated that aspect. That is what I saw.
Adv Mpofu: Yes, no, that's the point I'm making. But for someone who has known her, you were not surprised, you in person in particular?
Mr Tebele: No, I was not surprised.
Adv Mpofu: Before we get into this specific…your experiences at the Public Protector’s Office. I want to take advantage of you, if you don't mind. Because you are a person who can assist the Committee. I sensed that there was some kind of misunderstanding around the framework of let's call it the PFMA world? Yeah, I've worked in that world. I was once an accounting officer, and accounting to Parliament. I could have expected the evidence leaders, I can understand if they're not familiar with that environment, but I'm sure the Members hold many entities to account. I want us to go through some of the framework issues. You also have an advantage because in the PP’s Office, you've worked both on the side of the executive authority and now you're on the side of the accounting officer, am I right?
Mr Tebele: Correct, Advocate.
Adv Mpofu: Thanks, and on top of that you've also had experience at Treasury, which is, well, that's the home of the PFMA, correct?
Mr Tebele: Yes, correct.
Adv Mpofu: Okay. Now, there seems to be some sense that there are what one might call Chinese walls between the roles of these offices? Am I correct that there's a lot of convergence between the role of an accounting officer, which is usually the CEO, and accounting authority, who is usually a board of directors, if it's that kind of entity, and the executive authority, who is usually the Minister?
Mr Tebele: I think the distinction of those roles, it goes with an organisation in a few government departments. In the case of a Public Protector, that is where I found a little bit of a shock. The role of the incumbent it's almost like it becomes an operational one, in as far as investigation is concerned. Because the investigation when you go through the PP Act rests on the shoulders of the executive authority. It was different to the environment that I was used to. When I started seeing the operational nature of how the executive authority was during my early days in PPSA, the accountable officers were not even attending our meetings that were chaired by the executive authority. It was later on that they started coming. I was surprised. I started to understand that maybe the accounting officer of the institution is purely and solely responsible for the accounting in terms of the PFMA. My understanding was that the executive authority takes charge of investigation. That is how I understood it without understanding how they separated the accounting officer from the investigation and later on the executive authority started bringing the accounting officer into the investigations. So that is what I observed when I came here. I was also surprised why the Public Protector, to me, looked to be so operational but then I understood that the investigation is at the core of the Public Protector.
Adv Mpofu: Responsibilities. Good. Then maybe in that mix, you're quite right, the PFMA itself is quite flexible about the type of entities. The configuration that you will get in a government department is not going to be the same as the configuration you will get in a SOE or in a provincial department. Even the SOEs – there are schedule one and schedule two, and all sorts of different configurations. So the PFMA is flexible enough to accommodate all those different types of entities. Isn't that so, Mr Tebele? I think you have frozen. I was asking you whether to confirm or dispute my summary of the PFMA?
Mr Tebele: Thanks Adv Mpofu. Through you, Chair. Although the audio was a bit delayed. Yes, there are different roles that the PFMA is putting in terms of the accounting authority, accounting officer. Those roles are clearly spelled. It became difficult for me because the institution that I'm serving does not have a board. Without a board then the accounting authority becomes the executive authority in my understanding, without having a separate board. But there is a very thin line in terms of where does the accounting officer stop and where does the executive authority start? I think that one I really don't know, if I may put it. It is only my experience that will come into play. But PPSA has a different way of handling it, especially when you have to marry the Public Protector Act and the PFMA. That is where the difficulties I think I'm experiencing but there are those different roles.
Adv Mpofu: Thank you very much. Yes, that's exactly what I was getting at. So the lines are blurred. Well, they are normally blurred anyway, in the sense that those three entities interact. But the point I was making, which I think you have touched on, is that that those blurred lines are even more pronounced in an entity such as the PPSA, where there's no separate accounting authority in the form of a board. Correct?
Mr Tebele: Correct. Maybe I need to qualify that, because in terms of the PFMA, when coming to finances the executive authority does not play much of a role in how the finances work, it's the accounting officer. In terms of the Public Protector Act, the Public Protector is responsible for investigation. When you look at investigation, investigation as part of the organogram of PPSA under normal circumstances should have been clear in terms of the roles of the accounting officer and the executive authority being different.
Adv Mpofu: Good. Okay, thanks. Thank you very much. I think we will canvass it with other witnesses as well. But I think that is sufficient to try and explain some of the complexities and peculiarities of the entity that we're dealing with. For those to be borne in mind, hopefully, when we go forward. Alright. Now, let's now come more into the specifics. You were tasked with communicating to Mr Neshunzhi about his, let's call it, redeployment, correct?
Mr Tebele: Correct.
Adv Mpofu: This was against the background of the, let's call it, the leakage, the information leakage crisis which hit the institution, correct?
Mr Tebele: Correct. It was after the report, I think, was tabled before the leadership.
Adv Mpofu: In your observation, how did Mr Neshunzhi take the interaction between you and him?
Mr Tebele: He wanted to be provided with reasons why he should not go back to his office or his original post. My advice to him was "I was requested to ask you so that you know that leadership is intending to move you to another unit". I did have a talk with him as the person that I got to know when I was working in the institution. Mr Neshunzhi was not really directly reporting to me, in as far as the security issues were concerned. He was mostly accountable to the executive authority and the accounting officer. I took it that that is how it needed to be done. I was just responsible in terms of the operations of how the security unit need to function when you look at the operational plan, but the other issues I thought maybe they would have been beyond me. When I was asked to consult him, I called him into my office. I talked to him. He indicated that he needs to be provided with reasons. I said from where I'm sitting I don't have the reasons because I was not given the reasons. But I take it that there are reasons behind what I'm unable to tell him and he requested the report. I said I did not have the report. I understand because when the investigation was done my laptop was also taken. I did not want to be much involved because I could have been under investigation also.
Adv Mpofu: Yes, in fact, let's take it from that stage. It's correct isn't it that for an institution such as the PPSA or the Office of the Public Protector, a crisis such as this one would have been a very serious one because you deal with sensitive information, correct?
Mr Tebele: Yes, there is sensitive information and leakages were happening. I would take that leadership looked at that. I really did not need to know why they wanted to move him, except that I needed to consult with him, which I did. I even suggested certain areas where he could be utilised. Then at the end, he moved out of the unit. I did not get an indication that in continuing to work where he was, he was still not satisfied.
Adv Mpofu: Yes, thank you. In that world of intelligence, there is a code known as a 'need to know' basis, but you may not know about that. The issue here is that once there was an outbreak of leakages, as you have just mentioned, it had to be investigated. Even someone like you was part of the people who were targeted for the investigation, correct?
Mr Tebele: Without being specific in why my laptop was taken, I suspect that there is something that they needed to check on my laptop. Because I wouldn't understand why my laptop was taken, except that they needed to look at something.
Adv Mpofu: And you are aware that other people's laptops were also taken. For example, Mr Kekana, correct?
Mr Tebele: Yes, I'm aware.
Adv Mpofu: I think it's common cause that Mr Neshunzhi was cleared after that investigation. In other words, he was not found to have been the person who leaked the information, correct?
Mr Tebele: Without me having seen that report, advocate, I would say well for now I don't know what was the outcome of that investigation.
Adv Mpofu: Fair enough, but you're not aware yourself of Mr Neshunzhi having been charged, for example, in connection with leaking information?
Mr Tebele: No, upon his coming back the matter never continued.
Adv Mpofu: Thank you. You are aware or if you're not, you're not, that Mr Kekana, on the other hand, was charged or appeared before disciplinary processes in relation to information leakage?
Mr Tebele: Yes, I became aware that he was charged there for information leakage.
Adv Mpofu: Thank you. Now let's talk about were you already at PPSA during the days of something that was called the think tank? Or did you get to know about it?
Mr Tebele: The think tank happened when I started at PPSA. I think there were about two or three meetings of think tank, which I attended, before the discontinuation of the think tank.
Adv Mpofu: And it was discontinued by Adv Mkhwebane, correct?
Mr Tebele: During that time, if I remember well, without knowing the exact results from the PP, the think tank was coming to an end after a long time. It was sitting quarterly and the Public Protector wanted to release reports frequently. So from what she was saying by the time the think tank sits, some of the reports would have been with her for the last three months. The institution itself did not create a seamless process in terms of reports. She said it was better if the quality assurance – because think tank was the quality assurance – can be done at the level of the EMs. The quality assurance unit will be the last one to go through this quality assurance. I think, if I recall well, it was when the institution was under financial constraints, because the think tank was attended by the provincial representatives also and they would stay for a longer period because it would normally take two days. I think cost came into play in terms of cost containment. But I think the main thing from what I could gather was that the think tank itself could not add value in terms of the timelines that the Public Protector would have wanted to issue reports.
Adv Mpofu: We are told that this think tank dates back to the days of the Public Protector Mushwana and even Baqwa. The Public Protector Thuli Madonsela found it there and she just continued with it. But Public Protector Mkhwebane, as you say, saw fit for the reasons that you have explained, to abolish it. Correct?
Mr Tebele: Correct.
Adv Mpofu: And to put it crudely, if a report had to come or rather, let's start here. The think tank as I think you've testified was replaced by a weekly meeting of quality assurance, which was centred around the QA function within the Office of the PP. Am I right?
Mr Tebele: Yes, the task team was meeting weekly. The weekly task team was also happening during the time of think tank. Think tank was still there but the task team was happening weekly, so that the Public Protector can on a short term basis check where things are in the investigation pipeline. The think tank was quality assuring reporting and giving inputs towards the end when the report is supposed to be released. But because I think the Public Protector wouldn't have wanted to issue a report after a quarter she thought it fit that the report be issued as and when they get finalised. As such then they had to go through the quality assurance, which was sitting in her Private Office before it was moved out. The belief is in terms of the quality assurance manual that was there, there were indicators for how reports should have gone through. The institution had a quality assurance manual and a quality assurance unit. That unit would still be responsible for that function of assisting the Public Protector in quality assurance. But I think some of the things that was emphasised in the meetings that I attended was that things should not be left for the quality assurance unit. Quality assurance should be dealt with at the level where the investigation is done. All the EMs need to certify the quality of their reports. There was a certificate that was proposed, which after you have quality assured the report, you have to certify that the report meets the quality standards. It goes through the processes. I still believe that that is still there. I'm not sure for now. But those are the indicators that were there during my stay in that office.
Adv Mpofu: Thank you. The certificate you refer to is what became known as a certificate of compliance, correct?
Mr Tebele: Yes, I think it's that one.
Adv Mpofu: Thank you. In a nutshell, if you want to summarise the situation, what happened is that the quality assurance process, broadly speaking, used to involve this quarterly meeting. But now it was, for lack of a better word, collapsed and condensed into a much sharper quality assurance function, centralised in the Office of the PP without the quarterly element, correct?
Mr Tebele: If I may put it, the Quality Assurance unit was the secretariat to the think tank, which means when quality assurance dealt with reports, those reports got tabled to the think tank. That is the process that was done away with. But then quality assurance, the other structure, remained except that the think tank could no longer sit.
Adv Mpofu: Yes. In other words, previously a report could not have been released without it passing through think tank. Now that was no longer necessary, correct?
Mr Tebele: The reports that were issued when think tank was still around, they were going through the think tank. I think the other thing was that when the think tank sits, you'll find that these reports are still not ready. They have to go back until another think tank sits in three months time, then it takes about, well, six months for that report to be issued. I think that was perceived almost like red tape that is not assisting the institution in releasing reports as and when they were supposed to be issued.
Adv Mpofu: Okay. You would agree with this example that I'm making, if, let's say report when it was almost ready, it had to go through four quality assurance stages. With a task team approach it would go through four weeks of that process; but with the think tank, it would be a full year, because it would be four quarters, correct?
Mr Tebele: Let me put it this way, the task team was sitting weekly, and only looking at section 7(9)s and investigations that have reached report stage. So it was a much quicker process. During the think tank time, when it has passed through the task team, then the quality assurance, who were part of the task team, would take it to think tank in terms of the dates in which they are there. But the timelines in terms of think tank and task team were different. Because I think they were meant not to be the same. Think tank was to bring all the brains of the Public Protector to the institution to say what is this report. The task team was to hold those people responsible for their section 7(9)s in terms of the timeline. There was still another structure called the Dashboard, which we were having every month. Although Dashboard was looking at a lot of issues. But, yes, if you follow the think tank process, the issuing of reports in terms of monthly, would not have been possible under the circumstances.
Adv Mpofu: Yes, I think we're on the same page. In other words, I'm saying, let's assume for a minute, some problem was identified. Then it had to go back to the next think tank. Then another problem is identified or the same problem, then it has to go through another think tank. Then maybe after four attempts it is sorted. That process would have taken a full year because the think tank would only sit four times in a full year, correct?
Mr Tebele: Yes. The other problem that was discovered in the process was when think tank sits, it will be provincial representatives and executives. You will find that the person who is presenting the report was not the initial investigator and some of the issues in the report you’ll find that they are not familiar with. Then the Public Protector extended the think tank to the investigators saying if the matter you are investigating is going to serve in think tank, you need to come because you are the one who has been investigating. The during the last days of think tank investigators would come and present their reports in think tank so that we cut the timeline in terms of referring reports back and forth.
Adv Mpofu: Okay, thank you. Thank you, Mr Tebele. And, as I understand it, just again, to assist us, to give us a picture. You've already testified that one of the innovations that the Public Protector introduced was exactly that direct interaction with investigators not necessarily only through the Executive Managers, correct?
Mr Tebele: Yes, although myself, I was not for that idea. But I take it that because the Public Protector worked in this institution, she had a better understanding of how things should be done. In that way she would have been assisting in moving the pipeline. So that once she did, I think that is where other investigators started having problems of having to face the executive authority, which maybe before they never thought they could do.
Adv Mpofu: Yes. By that you mean because the Public Protector in her own experience had been an investigator herself, you deferred to her knowledge of the institution? Is that what you mean?
Mr Tebele: Yes, I thought by doing that it means it's because she knows the institution and she knows how it works. So if you go back, she will assist the investigators in terms of bringing their matters. But I think because of the backlogs that were there, the whole pipeline got frustrated.
Adv Mpofu: Thank you. Am I correct that when you say she was interacting with investigators, you don't mean that there was a big room with all 160 investigations and investigators? But if an investigation I was working on was being discussed then I will be invited? Is that how it worked more or less?
Mr Tebele: Yes, during think tank that is the proposal that she brought in to say let me get in the investigators that were investigating the matter. Then during the report writing also because she understands and she knows the people that are investigating, she could call them by their name. She knows them and their matters. So those interactions happened even during the meetings that we were sitting in. Investigators would present their own matters to the Public Protector even if their EMs were sitting in that particular meeting. That is how the structure started working.
Adv Mpofu: Thank you. Therefore, because of this, let's call it, she has now had a bird's eye view of every investigation. Did that make it easy for her to monitor and to set the deadlines as you've indicated, of each. In other words, there might be different deadlines for different investigations. Because she would have had intimate knowledge of each investigation at what stage it is, when it started and those kinds of things.
Mr Tebele: The Public Protector had an understanding of matters that she needed to deal with and she had a better understanding of the people that we're dealing with those matters. Because in the matters that we are dealing with, you have what we call special attention matters, which are matters that are sitting with the Public Protector, where she would want to know what is happening. There were matters which were mostly coming from parliamentarians. Those are matters that were close to her to monitor. There will be these other matters that had been sitting in various stages of investigation that she may pick. Other matters, she will pick them through people complaining to her directly that "my matter is not moving". But she had a list of matters that she would want regular feedback on. In those meetings she would put deadlines and she would either put a deadline or people themselves will put a deadline and that would be recorded. Then in the next meeting, people accounted in terms of "how far you are with the deadline?" Because I was also responsible during the task team meetings to record those deadlines which they agreed on during the meetings.
Adv Mpofu: Thank you. In fact, let's just touch on that quickly, because there was some suggestion that the deadlines were unreasonable. Did I understand the evidence correctly that the PP even went so far as to ask people to impose their own deadlines on themselves?
Mr Tebele: Yes, that happened in the meetings.
Adv Mpofu: And so when she was now demanding the meeting of those deadlines, it would be a deadline that effectively you have set for yourself so the reasonableness of the deadline would depend on you as it were.
Mr Tebele: For those deadlines, I can attest to where she said, ‘please, before I give you a deadline, guys, can you put your own deadline, so that the deadlines don't come from me’. But what she emphasised is if you put a deadline and you don't meet the deadline, what do you want me to do?
Adv Mpofu: Okay, thank you. That's very clear. Okay. Now, with your experience, I’m now moving to the issue of quality assurance, generally, that was conversed with you. You’ve demonstrated that you had a lot of experience in quality assurance, generally. I liked the examples you made. Quality assurance in an organisation includes, as you said, the style, the technical issues, the language, the editorial, sometimes you even get people who are specialists in language to make sure that it flows and all those kinds of things. Now, with your experience in quality assurance from your days at Treasury, would it be correct to say that the quality assurance process at the PP Office was very thorough and produced good quality reports?
Mr Tebele: In terms of the process that each report should follow, I would say that the process allowed for the thoroughness of the report at the end. Because the quality assurance starts with the investigator after drafting. It goes to the senior investigator. It goes to the executive or the chief investigator. It goes through all those processes up to the level of the Public Protector. For me, if it goes through that process, then there is still thoroughness. If there are mistakes, then it means it is just a mistake that would have happened. But that is the process, which the reports were going through. I believe that even now it's the process that the reports are still going through.
Adv Mpofu: Thank you, very much. Because the impression that’s been given out there in the world is that, you know, these reports are scribbled by the Public Protector on the back of some matchbox, you know, and then released to the public. So with that thorough process, do you agree that it was mostly guided also by what you call the template? The agreed template of the organisation, correct?
Mr Tebele: Yes, the quality assurance unit had a template which a report should follow in terms of the style. Their responsibility when they quality assured the report was to look at the template and the style. They knew how to do it. I don't know if currently the same style is still being used. There is still a quality assurance unit, but I'm not sure if they still follow the manual, where you give them a report - there is stage one of quality assurance; there is stage two; there is stage three. There were different stages in the quality assurance process. Currently, I can’t attest if that is still being followed. But during my stay, that is how quality assurance was done.
Adv Mpofu: Yes. Now the Public Protector will testify that with a few improvements, that is still the same process that is followed and that the standardisation itself is a way of assuring quality, because then people will get used to how it works. Would you agree with that?
Mr Tebele: Well, I'm not sure of her testimony. But what I just indicated, it's what happened and what I'm aware of during my period while I was still in Private Office interacting with investigation and quality assurance.
Adv Mpofu: Yes, no sorry Mr Tebele. Maybe my question was not clear. I was saying would you agree that the whole issue of standardisation, I'm talking now in terms of quality assurance theory in general. The issue of having a template and standardisation itself contributes to quality because people get used to the style that is expected and are able to refer back to previous reports, and that kind of thing.
Mr Tebele: Yes, the template is standardising how things should be done.
Adv Mpofu: Thank you. When were saying that within the office some tension arose, and I can assure you I know what you're talking about, between lawyers being asked to report to non-lawyers, and that kind of thing. In that equation, the non-lawyer was Ms Molelekoa, correct?
Mr Tebele: Correct.
Adv Mpofu: And the lawyers were, or at least the people who regarded themselves as lawyers, were Mr Kekana, Mr Matlawe. Mainly those two. Were there others who were lawyers, and I suppose yourself you are also a lawyer.
Mr Tebele: The quality assurance unit, which was headed by Mr Matlawe, was mostly lawyers. The quality assurance unit by virtue of being in Private Office and by virtue of Ms Molelekoa being the Chief of Staff, means she was the most senior person in that office. Things in terms of protocol needed to be sent through her.
Adv Mpofu: Thank you. That's what caused this tension?
Mr Tebele: Yes. When they thought that she is now making inputs, in terms of law and investigation. I think that is where the whole thing started from what I can remember.
Adv Mpofu: Yes, no, fine. I know the snobbishness of lawyers sometimes. All right. Then at what point did Mr Matlawe go AWOL and just not pitch at the agreed weekend meeting? Was this in the middle of this, let's call it, disgruntlement about pulling rank and all that?
Mr Tebele: No, Mr Matlawe not pitching happened in June 2017. I may not be exact in terms of the date. Can't remember whether we were supposed to sit on the 13th but there was a holiday. Then we needed to come and assist the Public Protector to finalise the report which was called CIEX. I was a week and half at the institution. There was no disgruntlement during that time. I think it just became an issue. Maybe he got committed somehow and then he did not come for that specific meeting. But those that were there, Kekana and the rest of the quality assurance team, assisted the Public Protector to finalise that report. It was not in the middle of what happened after. After that the quality assurance unit still continued working in the Office of the Public Protector. Even after that happened.
Adv Mpofu: Yes, that's fine. I think Mr Kekana’s evidence was actually that because of Mr Matlawe’s absence, he himself took the final report to the Public Protector. I think that was confirmed in an email, which we showed him, which came from the Public Protector. Now if we move to the issue of backlogs. Or, first, before we do that, let's talk about the issue of just deadlines correctly. You said you had no qualms about agreeing to the fact that there were many deadlines set and people were, you know, squeezed into meeting those deadlines. But your evidence is that this was done for the sake of the public. In other words to deliver to the complainants, correct?
Mr Tebele: From the meetings that I attended and the interactions that took place in those meetings, putting the complainant first came very high. Following standards in terms of when to issue reports also came very high. That was the emphasis – how do we justify having a report or complaint that is sitting with us for six years? Because it means we are also inflicting secondary prejudice on that particular person. Those were some of the ways that the Public Protector would attest. The problem is that the deadlines, because people had a lot of issues that they needed to deal with every time the Public Protector wanted them. They could feel that maybe it was not reasonable for them within this space of time with 20 investigations to push them on. I'm not speaking for them but that is what I think would have went into them. The deadlines were not done for the sake of producing the reports. The deadlines have always been about completing the reports and getting rid of the backlog.
Adv Mpofu: Thank you. Another impression was created by a Mr Samuel, if we can even take anything from anything he said, and it was that the deadlines were in a way just time-related. In other words, you must produce this next week but there was no focus on quality. But from your evidence, it seems that there was a balance between meeting the deadline but also meeting the required quality standards, correct?
Mr Tebele: I think I would need to qualify Mr Samuel has been in the institution more than my days. He would understand it better. But having been close to the investigation team, the problem was that the age analysis in terms of investigations was just getting too wide. The Public Protector was feeling that we are really not doing justice. If you sit with matters, let's say you are investigator A; you have 15 matters with you. In these 15 matters, 10 of those matters would have been finalised two or three years ago; you still have them. You are going to be pressurised today because those things are long overdue. Yes, he will have a feeling that he is unreasonably being treated. Or if the investigation moved from another person to you, but it's old already and the pressure goes to you. Naturally you will have a feeling that this is becoming unreasonable. I think those examples will be the context under which it would have happened. But I think Mr Samuel is in a better position to put it more clearly. But my observations were that when the Public Protector demanded that these things be finalised, they were already long overdue in the hands of different investigators. I mean, if something is overdue two years ago, yes, if you come today, and I say to you produce it tomorrow and you have not even started; you will feel the same way.
Adv Mpofu: Mr Tebele, the question I was asking you is, did those deadlines go with compromising quality or not?
Mr Tebele: A deadline?
Adv Mpofu: In other words, was it look just produce this thing next week or next month or whatever? And it doesn't matter what quality it is, even if it's shoddy work, we'll take it and then we'll tick the box and say you've met the deadline? Or you also still had to produce good quality work, correct?
Mr Tebele: From my understanding, the deadlines did not cut the corners in terms of the quality. The deadlines and the quality assurance processes still needed to be met. But maybe it's a question of how many deadlines do you have and can you produce the quality within that deadline? Whether the deadlines impacted on the quality of investigation, that one I'm unable to say something about.
Adv Mpofu: But from your observations, okay, well, let's put it this way. If there was no insistence on quality, then everybody would meet the deadline, because you could just produce anything in three days or whatever. Surely the reason people felt that they needed longer deadlines or rather that they came back to say they have not met the deadline must have had something also to do with the template. In other words, they still had to meet the requirements of quality and a good quality report, surely. Am I correct?
Mr Tebele: I would want to qualify it this way because a deadline and quality sometimes, yes, the deadline can compromise quality. It depends on when you start. If I give you a deadline today on a matter that you have been sitting with for four years and you did nothing, obviously, you are going to rush to meet my deadline. So the investigation itself could be compromised, not because of my deadline but of something that happened before I gave you the deadline because the matter was never attended to. So the issue of quality and deadlines to me may not be the same. I can still produce quality when I have a deadline; or I can get a deadline and because I'm far away from the investigation then I'm just try to put something together quickly so that I can meet your deadline. So it depends on different circumstances, if I may put it that way. I don't know the circumstances that are prevailing now with the investigators, whether the deadlines are on the reports that are still active that have not gone beyond their timelines. I believe that some of the reports where they get the deadlines, they've already gone beyond their timelines. There could be those reports that have not yet gone beyond their timelines but for different reasons the executive authority would want those reports finalised.
Adv Mpofu: Yes, thank you. I think in short, you'd agree that once the person producing the work produces it, it would still go through the normal quality assurance unit in the PP Office, am I right?
Mr Tebele: Yes, it will still go through the normal quality assurance processes within the institution.
Adv Mpofu: Okay, good. Now, you've also spoken specifically about the backlogs and age analysis, I think, as you call it. In fact, just in one example, Mr Samuel himself was involved in a report which had been sitting for something like three to four years. In those kinds of situations, you would agree that that is thoroughly unfair on complainants, correct?
Mr Tebele: Think as a way of putting it, it's when a complaint gets given, the complainant is expecting something to be done. Not after this longer, longer period. Yes, in the PPSA we have guidelines in classifying the matter of how long are you given time to deal with that matter. But I don't remember where a guideline is saying you can still do the matter after four years of receiving it. So these are the situations that are there in the institution. Which if cases can be analysed, you will still find those that are way back, which the backlog project was trying to get rid of so that they start with a clean slate. I mean, I know that the backlog project had a timeline and many people because of the overwhelming nature of the work that they still had, they could not deal with that backlog project. But that did not take away the timeline that the investigation required.
Adv Mpofu: Yes, Mr Tebele let’s call it the grand deadline of the backlog project was September 2021. Correct?
Mr Tebele: Yes.
Adv Mpofu: Therefore, obviously, depending on report to report, the smaller deadlines or the build-up deadlines would be different but all of them converge on the big deadline of September 2021. More or less that was the configuration, according to the Public Protector. Can you confirm that?
Mr Tebele: Yes, the project that the Public Protector requested the CEO and the COO to do had a September deadline. Within them, there were different dates in which the investigators should finalise their matters.
Adv Mpofu: Yes. So in other words, if I was sitting with a report that was two years old and you were sitting with a report that is four years old, our deadlines might be different but we must all be done by September 2021. Correct?
Mr Tebele: Correct. They have different timelines, the projects.
Adv Mpofu: Okay. Do you know, or were you ever able to diagnose what caused the lethargy of the past? Before Adv Mkhwebane came into office, so as to have this laissez-faire approach where reports could sit for years and years without being completed?
Mr Tebele: No, I don't really know what could have been the cause. But in the institution, you always have a reports. You always have complaints that you carry forward in every financial year, which would not have been dealt with in the past financial year. I think that works for each and every Public Protector. I don't think that we'll ever get a Public Protector who will come here and start on a clean slate. There is no such because complainants come every day. They can come on the last day of the current Public Protector and complain so that becomes a balance going forward. But I have not analysed what could have been the reason certain reports were not done previously. I don't know what was the mode of operation in the previous Public Protector. But what I know, the number of reports that they were issuing before and the number of reports I think that we are currently issuing, there are vast differences in terms of the numbers. I’m not talking about the quality of the whatever, but in terms of the numbers.
Adv Mpofu: You've answered my next question, which is whatever they were doing right or wrong because you were not there you cannot say. But you can safely say that the numbers have improved significantly, correct?
Mr Tebele: Yes, the numbers have improved. One of the things that the Public Protector did was to say, I have 160-something investigators, why should I produce the smaller reports? She started saying the people in the value chain of investigation should also produce their own reports. I think that upped the numbers in terms of the investigations and the numbers went up.
Adv Mpofu: Again, having sat on both sides, you also can confirm that the overall administration improved in the sense that you had two clean audits in two successive years, something that was completely unprecedented in the 26-year history of the organisation, correct?
Mr Tebele: That's correct. The emphasis that I got when I was in Private Office and that is, I think, what the Public Protector would have wanted to inculcate is the compliance of the institution, I think, was at the heart of the Public Protector in terms of what we needed to do. So the institution having to comply with all the regulations was at the heart of what the Public Protector kept on preaching. I think that is where our standards started to improve in terms of where things were and the efforts of the former CEOs also started assisting in us going in the right direction. When I joined the institution, the audit outcomes, although we had an unqualified audit, there were a lot of matters that were sitting. We established quality assurance teams to check the finances. We had an audit steering committee under the leadership of the current Public Protector and there was a budget committee that was set up. Those institutions that were set up ultimately made the institution to start realising a clean audit, in terms of administration. That is what I can just attest to.
Adv Mpofu: Thank you. I can also attest to, even though I'm not a witness here, that the worst thing you can do is to sit on a clean audit and congratulate yourself forever. As you say, you have to attend to all the issues that have been pointed out by the Auditor General if you are going to achieve another clean audit, would you agree with that? In other words, to achieve another one, a successive one, rather than just basking in the glory of one clean audit, it's important to make sure that there's continuous improvement, correct?
Mr Tebele: There is continuous improvement and you need to maintain those certain standards that you had and improve on those standards. That is how you can maintain a clean audit. You don't relax because you have a clean audit. You need to improve the standards because the audit also improves every year. You get different auditors that audit you differently every year. If you don't improve, you are likely to regress.
Adv Mpofu: Yes, thank you. Just by the way, this is something that my team has been worried about, about regression, not just for their own ends. You know that one of the standards to meet in order to achieve a clean audit is the rate at which you pay your service providers, correct? The new 30-day rule has to be complied with?
Mr Tebele: The 30-day rule has been there but the monitoring of the payments is the one that will make you achieve. The institution before was not making that and we are now getting that correct.
Adv Mpofu: Okay, well, that's not the experience of my team. They've not been paid. But I suppose there's still room for improvement. I think this is why they're being punished. But okay, so now when it came to the backlog project, what was the standard? In other words, what would happen if I'm an investigator, I have new cases that are coming in. But I also have to manage the backlog. Could that have contributed to the fact that people might have felt that there are deadlines to do with the backlog and also deadlines to do with the current pipeline, and maybe feeling overwhelmed?
Mr Tebele: Without having analysed that, investigators have different complaints that range in terms of different times. So if you have backlog cases, you also still have new cases. I'm not aware of a situation where an investigator is only having backlog cases. You will have a mixture of backlog and new cases so your timelines will differ, depending on the cases and their age. I think you will be correct to assess that could have also caused the problem in terms of deadline.
Adv Mpofu: Yes. You've also testified in terms of the…well, just to close off the issue of deadlines, whether they had to do with backlogs or current work; your view is that this was a necessary intervention and it improved the lot of the public that was complaining. After all, you were the Public Protector, and not the staff protector. Was all this that we've discussed, did it translate into faster service delivery, I think, which was the word that you used?
Mr Tebele: My comment is the monitoring of the backlog projects also assisted in getting cases resolved. It also improved the way in which our cases are mixed in terms of what we have. I may not remember it correctly but the Public Protector was indicating that before she leave, she would want to see cases that begin from – I don't know whether it's 2019 or 2020 – that will still be here; you can’t have cases that dates back to 2017. I think that was the target. I think people know in what she has been saying, for that to happen, the monitoring had to happen the way it happened. Whether it's good or bad? I can't comment on that one but it happened in that way.
Adv Mpofu: Yes, no, she will testify to that. The most cruel thing you can do is deliver a mess for your successor, so she's determined that that should not happen.
Chairperson: I'm going to ask that we pause there and take a lunch break and we’ll resume at two.
Chairperson: I now hand over to Adv Mpofu to continue.
Adv Mpofu: Thank you. Good afternoon, Chairperson. Good afternoon, Mr Tebele.
Mr Tebele: Good afternoon, Adv Mpofu and Honourable Chair and Members.
Adv Mpofu: Thank you. We stopped where you were emphasising that Adv Mkhwebane was determined that when she leaves in October 2023, there should not be a backlog. Except, of course, as you correctly pointed out, you can't help it if there's a matter that just came a month before her departure, but that there should not be a minimal backlog, correct?
Mr Tebele: Correct, Advocate. Through you, Chair.
Adv Mpofu: And this was communicated to the team as one of her goals, correct?
Mr Tebele: It was comments she would make in a meeting which will indicate that. In those meetings that I would have attended, that is what I would heard.
Adv Mpofu: Thank you. You also said that you have experienced the Public Protector raising her voice in meetings when deadlines have not been met. I suppose like any boss, I was certainly a boss who used to do more than raise my voice. Did you find that to be unusual in your experience?
Mr Tebele: It's mostly not unusual, because sometimes certain circumstances can force you to do that. As much as maybe as subordinates, we are not used to it or we may not appreciate it, but it does happen. When certain circumstances force somebody to say that.
Adv Mpofu: And in your experience, when would those kinds of circumstances arise? When she would raise her voice, it would be when what happened or what did not happen?
Mr Tebele: Mostly it would be when certain commitments were not met in terms of a previous arrangement. Or maybe when she learned through a complainant that phoned her directly that this particular matter has been there and complainant has heard nothing. When she engaged with the investigation, she found that the matter has not really been receiving attention. Those are matters under which a voice would be raised. I mean, really a voice will be raised. I don't want to beat around the bush, even to the extent that she will say, ‘But guys just tell me why are you here? Why should these people trust that we are doing their service when we are just sitting here and doing nothing?' That is the type of voice that I would have heard in the meetings that I have attended.
Adv Mpofu: Thank you. So even those instances would have been focused on service delivery, improvement of service delivery or what the Chairperson of the Portfolio Committee, Hon Magwanishe, has called the improved performance. It was to achieve the improved performance of the Office, correct?
Mr Tebele: Correct. All what I could say is, though, whatever was said during this meetings, it was said because of the work that was going on. I'm not aware of anything that would have been said that was not related to that type of work we were looking at.
Adv Mpofu: Thank you very much. I mean if all this was related to service delivery, it would be a sad day, I'm sure you'd agree with me, in a country that is plagued by lack of service delivery that we might have reached a stage now where we fire people or impeach them for insisting on service delivery? I'm sure you'd agree with that?
Mr Tebele: That one, advocate, I wouldn't want to pre-empt the outcome in terms of the areas but what I’m putting forward it’s my observations and what I have seen for the period that I stayed in Private Office, which was almost a year and a half. The interactions that I had with the Public Protector and the teams that were coming to account to the Public Protector.
Adv Mpofu: Thank you, and you are sharing your own experiences?
Mr Tebele: Yes, I'm sharing my own experience.
Adv Mpofu: Fair enough. Okay. Now, let's go to the Dashboard. You've described, I think, three types of meetings. The think tank, which was abolished, you spoke about earlier. The task team meetings, the weekly task team meetings. But as I understand it, there was also a monthly meeting called Dashboard. What would happen in those meetings that is different from the other two?
Mr Tebele: There were meetings that the Public Protector would bring the investigation team to account that was the task team that happened weekly. In Dashboard, various EMs will present the status of their investigations, whether they are at the point of section 7(9) or report writing. But the Dashboard was basically to look at how far matters are that are under investigation. So each EM will present their list and give an update of where the matters are. What made it distinct from task team is task team would take over a matter that sat in Dashboard. Once the matter goes to report writing then the task team will take over that matter into their list and start monitoring that matter on a weekly basis. But there were instances where there will be overlap in terms of the matters that are monitored under task team and Dashboard. But Dashboard was mostly operational looking at the investigation and how far is what matter. I happened to be the scribe in that meeting, during my time. I'm not sure if that has changed now since I left.
Adv Mpofu: Good. All right. By the way, you said in relation to the information leakage crisis that your laptop was also taken. When it was returned, was there anything unusual or was there anything missing from it?
Mr Tebele: I couldn't pick up anything. Maybe to the extent that I was not looking for that information, so I wouldn't even know if something was missing in my laptop.
Adv Mpofu: Thank you. Alright. Then, if we can go to the issue you raised in paragraph 38 of your affidavit where you talk about the impact of the Nkandla judgement on the number of court cases. It's in paragraph 38, Chairperson, on page 2561. At least in my version of the of the document. I'll just read it out and then I'll ask you to comment, Mr Tebele. You said, 'Increasing litigation involving the Office of the Public Protector appears to have occurred because of the approach adopted by the courts, making remedial action binding and hence increasing litigation because those who were obliged to comply with these remedial actions and recommendations seek to go to the courts to have such set aside instead of complying with the remedial action, I got the impression that institutions sought to take the Office of the Public Protector reports on judicial review rather than to comply with a particular remedial action. This would happen when those institutions were called on to indicate how they complied with the prescribed remedial action i.e. when the remedial action was sought to be enforced. Such legal proceedings were sometimes initiated even years after the remedial action was supposed to have been actioned, and then only because the PP Office sought implementation of its recommendations. Even on what I regard as being bread and butter issues, reports are now being taken on the view, forcing the Office of the Public Protector to oppose litigation in order to defend reports that have been issued’. You remember making that statement?
Mr Tebele: Yes, I remember.
Adv Mpofu: Can you for the edification of the Committee, explain how much of an impact or how much of a turning point that EFF-Nkandla decision made in the flow of litigation in the Office?
Mr Tebele: Thanks advocate. Through you, Chair. From our observation, because part of the role that I played was in Legal Services and constantly the Portfolio Committee require certain information in terms of litigation costs. At some point, we looked at the period before Nkandla and the period after Nkandla in trying to understand what could be causing the spike in our litigation costs. We came to the conclusion that because of the binding nature of the remedial action it is no longer easy for institutions to ignore the remedial action when the Public Protector has issued the report. In the institution we do have a dedicated person who follows up on remedial action, to check with institutions how far they are in terms of implementation. Our reading of the whole thing was that we are getting this spike because now remedial action is binding and people can no longer ignore it. Those that ignore it, can ignore to the extent that the Public Protector is not coming to them to say how far are you; but once you push enforcement also, the reviews are coming. That is on the basis of our observation that we came to that conclusion.
Adv Mpofu: No, thank you. Thank you very much. Is it also a fact that the rate of litigation or the nature of litigation would mostly be that the Public Protector’s Office responding to review applications rather than initiating such litigation?
Mr Tebele: Most of our matters, when I last interacted, was where the initiator is not the Public Protector. It's coming from outside, which means we are being dragged to court. Then at some point we are forced to oppose or not to oppose, sometimes looking at our financial constraints. But it is correct that we are getting more litigation from outside than our own initiation. I would think that as much as we would want to enforce our remedial actions, due to financial constraints, we are inhibited by those constraints. Because you must litigate on behalf of the complainant. That is what it will literally mean.
Adv Mpofu: Yes. The evidence of the Public Projector will also be that the, in those circumstances, when, as you say, you’re dragged to court, it's impossible to predict how many reviews are going to come and whether they will be successful or unsuccessful. Or whether they will end at the High Court stage or go right up to the Constitutional Court. I'm sure you'd agree with that, as a lawyer, just in your own general experience, that litigation is by its nature unpredictable, correct?
Mr Tebele: It is correct because you can’t determine how far you will go in the court process from the word go.
Adv Mpofu: Yes, thank you. Is it also a fact that the number of reviews would be proportional to the output, in other words, you might be a victim of your own successes? For example, one of the statistics that the Public Protector will put up when she gives evidence will be that in the era of Advocate Madonsela, there were 11, I think, reports in that seven year period, which related to EMEA, the Executive Members' Ethics Act. In her period, which is still more than a year away, she has already done 37 of those by comparison. The point I'm making is that – and these are the high level investigations of members of the executive – if you do more, then obviously the reviews, particularly post Nkandla, will also be more. The 11 that she did were mostly before even the Nkandla case. Would you agree with that analysis of the Public Protector?
Mr Tebele: Advocate, it may not be an exact science in terms of the reports that you issue and review. But it should follow that the more you issue reports, the possibility is, you are likely to get more reviews. We can paint another scenario where you don't issue any report for the whole year, you are definitely sure that you will never get a review. So it's just what I would want to paint without going into details in terms of what it means, but that is how I would take it.
Adv Mpofu: Okay, that's correct. The safest way to get zero reviews would be to do zero reports. I agree with that. All right now. I just want you to assist us. In fact, you did that and just to assist with another area of what seems to be potential confusion. In your paragraph five, and I'm sure you've found many people being subjected to this confusion that I'm going to refer to you. You may want to assist the Committee in navigating this area about the Public Protector, the person, and the Office of the Public Protector, which is the institution, and sometimes even as the OPP I think is what you use in your statement. But sometimes it's just simply called the Public Protector, meaning both the person and the institution. In paragraph five, you say, ‘when I refer to the PP herein I'm referring to Adv Mkhwebane. When I refer to the OPP I'm referring to the Office of the Public Protector, i.e. the constitutional institution, inclusive of all staff members’. Am I correct what you call the OPP is the juristic person that is referred to in section 5 of the PP Act, as opposed to the person, correct?
Mr Tebele: Yes, correct advocate. The terminology that I came to learn when I came to the institution is the PP and the DPP. The institution being the Office of the Public Protector. But currently, we also use PPSA, which is Public Protector South Africa, I think interchangeably, meaning the Office of the Public Protector. So sometimes it could be confusing. But I was giving my interpretation so that people can understand when I use certain words, what am I referring to. The PP would mean the current Public Protector, Adv Mkhwebane, and then there will be the DPP, and then the Office of the Public Protector would mean the institution together with the staff. That was for the purpose of clarifying these words when I made the paragraph on my role.
Adv Mpofu: Thank you. Thank you very much for that. I think for people who are outside the institution, some of them find it unnecessarily confusing. I know some very senior counsel, we still can't work that one out. But you're quite right that the OPP in your language is sometimes used interchangeably as PPSA simply to mean the institution, correct?
Mr Tebele: Correct.
Adv Mpofu: Thank you. Another area of potential confusion, which I started you with, is I think it was referred to yesterday as the separate lanes of the Public Protector as executive authority, and the CEO as the accounting officer, which you have correctly pointed out converge at certain places and separate in certain places. As it would happen because they are dealing with one institution that these people are servicing. But I want to ask you around specifically disciplinary proceedings, because I think that's where the potential confusion was. It is correct, isn't it that disciplinary proceedings are run from or conducted from the Office of the CEO, correct?
Mr Tebele: It is correct. Because from what I know, the accounting officer is the one responsible for disciplinary action.
Adv Mpofu: Correct. But having said that, and this is why I think there's confusion. The Public Protector herself or the DPP, for that matter, is part of the institution. So if some employee, let's say, insulted the DPP or did something, there would be nothing to stop the DPP from referring a matter to the accounting officer to say this person has just called me names, and therefore, for that matter, the process of discipline would continue. Because all these people are working within the same institution. Am I correct?
Mr Tebele: Yeah, I think to the extent that the executive authority maybe does not have disciplinary powers but where the executive authority feels that in their presence one staff member behaves differently. Maybe there are people that could attest to that then they can ask the accounting officer to institute those disciplinary processes. It will mean that the information on the disciplinary process coming from the complainant will now be the Public Protector, in case it's the Public Protector or the DPP because that is the person that must give the statement for the initial process to start. That will be my thinking in terms of procedurally how we would want to do it.
Adv Mpofu: That seems to be correct. And, in fact, you’re right the PP, in my example, or the DPP might even be called as a witness once the DC has started. Correct?
Mr Tebele: Correct, because the first complainant is the initiator of the whole disciplinary process.
Adv Mpofu: Yes, now, but that must not be confused to mean then that the Public Protector or the DPP in that example, would be conducting the disciplinary process. As you say, there might be an initiator because of the factual circumstances, but they have no power to conduct a disciplinary process, am I right?
Mr Tebele: Well, in terms of the disciplinary code the institution needs to appoint independent people to investigate the matter and to assess whether the disciplinary process will continue or not. I think the investigation is the one that will determine if this matter is proceeding forward or not. It wouldn't be the complainant that is going to be part of the process, except to give evidence.
Adv Mpofu: Thank you. Right. Okay. Then you've touched on the exactly the next point, which I wanted to deal with. In your experience the persons who were disciplined, in the period that you were there, did you ever get the impression that there was some campaign to purge people? Or would it be case by case that a person would be disciplined? And obviously, they'll either win the case or lose the case, I mean, that's out of your hands. I'm just talking about the initiation stage. Did you find that there was some targeting of certain people? Or did it depend on whatever came out of the of the system?
Mr Tebele: No, I was not involved in the disciplinary processes. As a matter of principle, even if I was overseeing HR, I indicated to them on several occasions that I don't want to be involved in labour relations, because there is a labour relations unit that deals with the matters. I will rather observe from my own area without being inside it. So it has always been handled by Labour Relations. I did not even want anybody to report to me about what is happening on the disciplinary processes. As such, I did not have any information in terms of what was happening. Whether it could have been purging or it was relating to work; but I know that there were certain officials that were suspended and then disciplinary processes had taken place.
Adv Mpofu: Okay, no, fair enough, but just as an observer then, if you can remember. What I'm trying to say, was there ever a period where they would say, you know, there are these 10 people. There's a wave of people who are being suspended for the same thing or did these things happen at different times, depending on whatever's happening in a particular department?
Mr Tebele: No. My observation, I wouldn't have thought that there was wholesale suspensions. I wouldn't have said that because it will be a fraction of the people that were really suspended in the staff complement. I'm unable to make that assessment about wholesale suspensions because I don't have the numbers in terms of who was suspended proportionate to the number of staff.
Adv Mpofu: Thank you. Then just to confirm, I think Mr Mahlangu testified to this. But since you are now working in the CEO's Office, am I correct that the modus operandi is the same? As you've already said, there'll be a complaint. It would be referred and so on up to that stage. Now, from that stage onwards, am I correct that the modus operandi would be that an independent law firm would be appointed to investigate the veracity of the charges, just like this Committee?
Mr Tebele: I think what the labour relations do is they do get…
Adv Mpofu: Sorry, I should have said just like the independent panel to first do an assessment, whether there's a prima facie case…what we call a case to answer.
Mr Tebele: I think that labour relations does that exercise. They appoint their own, I won’t say an attorney, but I think they can appoint anyone who can assist them with investigating a matter. To advise them in terms of how to proceed. I think that is what they do. In certain circumstances, they can even appoint somebody internally that they think is not involved in the matter. Because some of these referrals, they involve finance. You appoint people. But they do get independent people and including lawyers. They can get anybody.
Adv Mpofu: Yes. But the principle is get someone independent, not someone conflicted. Unlike certain situations, there will be no, and you're quite right that if the problem had to do with accounting it might be that they appoint accountants. It didn't invariably have to be lawyers. But the emphasis I'm making is whether it's an internal person or whether it’s an accountant, whether it's a lawyer the investigation of the prima facie case would be done by an independent party. Maybe let's just put it like that, correct?
Mr Tebele: Yes, that is the procedure.
Adv Mpofu: And once the report comes and says, yes, there is a case to answer – not necessarily that the person is guilty – then is it correct, in your experience, that yet another independent person would be appointed to chair the actual disciplinary hearing? And that's the one I can say which is like this Committee, where they will then have to find the guilt or innocence of the person, am I correct?
Mr Tebele: Procedurally, a person needs to be appointed to chair the proceedings. We will always say an independent person but the independent person can also come from internal. But it is a standard process that you need to appoint a person that is at least perceived to be independent to chair the proceedings, whether internal or external. But for the process to be fair, you need to get that independent person to chair the proceedings.
Adv Mpofu: Yes. In respect of senior people, that would almost invariably be an independent advocate, an external advocate or attorney, although, as you say, it could theoretically be an internal person as well. Right?
Mr Tebele: I don't think that the procedures will tell you that in this rank you will need to appoint this rank of a person. As far as possible, you are trying to investigate a matter and you are trying to get people that can assist you in the matter so that when the matter goes forward you are sure of the story. I don't think that there is a relationship between the seniority of the person. Yes, as people we can say, because this is a senior person then we may need somebody who's got more senior experience, because we will need to match the experience. But I don't think that the rules or the procedure tells you that if it is a senior person, you must appoint an SC or somebody who has served 10 years or 15 years. No, the rules will not say that.
Adv Mpofu: Right. Okay, let's accept that it might or might not be like that in the code. But in your experience, the persons that we have mentioned in this particular inquiry – their disciplinary hearings, to your knowledge, if you know, would have been chaired by external independent parties, correct? The ones that, you know, the ones that you heard of, even before you got in the CEO’s Office, correct?
Mr Tebele: I don't even know the persons that were chairing the hearings. That is to the extent that I indicated that as an employee of the institution and interacting with employees on various levels. If I know who is dealing with this matter it may end up conflicting me in terms of me understanding how far is the process. So labour relations during my time they knew they were not reporting to me in terms of labour matters. As long as they follow the right process so that our matters when they go to the CCMA or wherever, then on procedure we are not found wanting. I really moved away from managing inside disciplinary processes during my stay in labour relations. I left it to HR and labour relations to the extent that I didn't even know who were attending those meetings. I didn't even know the report that they got. They never even showed me the report. I would just refuse; saying you have independent advisors, deal with them the way that you are dealing with them so that I don't come into the into the picture.
Adv Mpofu: Okay, no, that's fine, Mr Tebele. I thought if you don't know, you don’t know. The evidence before this committee is that, well at least the people that we have seen, Mr Kekana and Mr Samuel, have confirmed that in both cases their disciplinary hearings were chaired by independent advocates. That's fine. But to your knowledge of the rules, it would follow therefore, because you are saying that the emphasis was on independence, whether it was an external person or an internal person, but the charged employee would have a right to object if they felt that the chairperson was biased or conflicted or not independent, correct?
Mr Tebele: I think that is given in any proceedings. If you are not happy with the chair, you can raise your voice and you can even request recusal. I think that rule is applicable in most circumstances.
Adv Mpofu: Yeah, well, in certain circumstances it doesn't make any difference, but at least they would have a right to raise it. Okay. The last topic that I want to deal with you, Mr Tebele, is the issue of the audi letters. It is indeed so that you yourself was a recipient of such a letter, correct?
Mr Tebele: Correct.
Adv Mpofu: Alright. Just to take away the Latin, what we really mean is what is commonly known as a first warning. Correct?
Mr Tebele: Correct. Well, there are different warnings. Be it verbal. Be it written. The audi letter I will take it as a written warning because you get a letter.
Adv Mpofu: Correct yes. In most disciplinary codes it would simply be called the first written warning. Okay. Terminology might differ but the effect, as you say, is that would be a written warning. Am I correct that even that audi letter and let's talk about you now, in your concrete situation. It would have come after some, let's call it, verbal warning? After you have been told you have a deadline for example, and you have not met the deadline. Then you get told again and then at some stage you get the audi letter. In other words, it can’t be the very first thing – without you not even knowing what you have done wrong, correct?
Mr Tebele: I would take it that procedurally there should have been something before the written warning. There should have been something that you have been warned against and now they’re putting it in writing. That would be my thinking in terms of process. Because if I don't know that I'm supposed to do something and the only way I know is to get the audi letter, that I would think is unfair under the circumstances.
Adv Mpofu: Yes, thank you. That follows logically. In your instance, you've said, I don’t want to put words in your mouth, you said at paragraph 49, ‘I have received an audi letter from the Acting Chief of Staff, and I was not under the impression that this had been orchestrated by the Public Protector at all as it related to me not having properly submitted a performance agreement’. So in your case, it was a failure to submit a performance agreement, correct?
Mr Tebele: Correct.
Adv Mpofu: And once you delivered on that and produced the performance agreement that was the end of the matter, correct?
Mr Tebele: It ended there. Normally an audi letter will indicate that within this particular period you may not need to do the same. After this, then the audi letter will be withdrawn from your file, if it was indeed in your file.
Adv Mpofu: Yes, I know. I don't want to talk in theory now. I'm talking about you specifically. Once you delivered on the failure to deliver that agreement; that was the end of the matter. Nobody took the matter any further or took you to a disciplinary hearing or anything like that?
Mr Tebele: No, in my case it ended after the submission.
Adv Mpofu: Yes, that's the truth. Okay. You never saw this as what Adv Mayosi calls harassment, intimidation and victimisation? Did you?
Mr Tebele: During my stay in Private Office, which was from June 2017 to around 2018 October, I would not really talk about having seen a harassment or purging of people. Maybe I could not be understanding what a harassment means. But in terms of where I'm sitting the issues that would have been dealt with mostly related to the work. Whether the voice was raised or not raised, maybe from my side, I wouldn't have taken it to be a harassment. But it's a different thing altogether in terms of what is harassment, but myself, I've not experienced it. I can't say that in front of me during my presence while I was in a meeting with the Public Protector or whoever was harassed that this harassment happened. I wouldn’t say that.
Adv Mpofu: Thank you. Again, to bring it home to you, specifically. The fact that you had failed to perform and you were given an audi letter, you never perceived it as harassment, intimidation of victimisation. Did you?
Mr Tebele: No, I’ve never seen it. Although it was a culture shock for me, because it happened for the first time in my career. But I looked at it and I said, well anyway. I had my own view in terms of not submitting the performance agreement, because I think it was my first year, where I expected the employer to give me a performance agreement. The employer was expecting me to draft my own performance agreement. That is why I did not comply. So that is how I perceived it and the person who gave me the warning, we continue to relate even up to today. So it was never personal. Relating to that I gave the performance agreement and that was it.
Adv Mpofu: Thank you, Mr Tebele. All I can say is that you are a man of integrity and approach things in a professional manner. We need more like you in our public service. Then finally, at paragraph 50 you said, ‘I saw it, when audi letters were issued it was because promised reports were not being delivered, deadlines were not being met, proper quality assurance was not taking place. The audi letters were received by employees because they were failing to achieve’. Do you stand by that or would you like to confirm that that is still your view?
Mr Tebele: During my stay audi letters were basically about work or maybe certain misdemeanours that would be related to work. But I wouldn't have seen an audi letter that would have been done under different circumstances. Unless those that received the audi letters can show that this audi letter was done for something that did not happen within the area of work. That is my observation. Because at some point also, HR was requested to look at the issue of audi letters because I think it was also raised by unions. That there are a lot of audi letters going on in the institution and as such the employees become demoralised in terms of the nature of work. I think HR tried to handle it in that regard. But I will stand by the paragraph in terms of the audi letters that I would have observed, unless proven otherwise.
Adv Mpofu: As I understand it, despite the attempt to show you that SMS just before your testimony, you remain of the view of the positive views that you have expressed regarding the efforts and endeavours of the Public Protector to improve service delivery to our people, correct?
Mr Tebele: To the extent that the focus has always been about the work, for me. I am okay. The issue of management, people differ in their management style, whether you like it or not. There is this saying that you get a boss from hell. I'm sorry about my language. But those are the things that you get. But the focus that I have been seeing, heavy handedness or those workers that are saying they were reprimanded. For me, they were about work. I'm not aware of anyone that was not about the deliverables that was supposed to happen. I think I will stay and stand by that. Even up to now.
Adv Mpofu: Yes, and in your experience, I'm sure like all of us, you've had different bosses in your career and they differ in their style, as you say. Your testimony is that the benefit in this particular instance was to the people, to the beneficiaries, or rather the complainants and the public, that after all, you are employed to protect, correct?
Mr Tebele: Correct, it was about work. As much as I would have felt that at a certain point that the Public Protector became too operational. But that is the style in which she wanted to run the institution. That is the observation that maybe she made. She thought, if she does that, then things will move. Because from where I’m coming from you're not used to an executive authority who is very close to the fire. They were always aloof. But when you come here, it is a different culture. But after observing the culture then you can see the reason why things are happening the way they are happening. That has been my observation. I don't know if things have changed. I still have some interactions with the investigations. Being in the CEO's Office, I'm not sure. But I don't attend most of their meetings now. Maybe things would have changed. But that is what I observed during my stay until October 2018.
Adv Mpofu: Yes, and the results are there for all to see. I think they are in the annual reports, correct? Would you agree, Mr Tebele? No, I'm saying the results are there for all to see in the annual reports and statistics of the Public Office of the Public Protector.
Mr Tebele: I would say the performance of the institution, it's there for people to see, in terms of the performance. That's the only way in which I can gauge if the current management is doing the right thing or not, is only in terms of the performance.
Adv Mpofu: Yes, because the Bible says ‘let those who have eyes see’. Now, finally, this time Chairperson. There's another, it's just a small area of blurred understanding. Am I correct in the following statement, although the CEO’s Office where you are working now is not involved in conducting investigations but as the accounting officer, the CEO gets engaged by external stakeholders with complaints or all sorts of things to do with investigations. Those complaints have to be processed at that level. But that does not mean that the CEO actually does an investigation. So that's another area of overlap. Am I correct?
Mr Tebele: My current observation is the CEO is now involved in investigation unlike the previous ones. There are a lot of complaints that go directly to the CEO and some of them get referred by the Public Protector. So the situation has changed. Now the CEO is the one that has to submit information through to the Private Office, which is the Office of the Public Protector and the Deputy Public Protector. So our current CEO is much involved in terms of managing the investigation.
Adv Mpofu: More hands on, yes. But again, as your last two words were of managing the investigations. In other words, that would also involve things like what you and I have discussed, the turnaround times, making sure that the Dashboard targets, for lack of a better word, are being managed and the deadlines are being followed. That kind of thing, which is part and parcel of the investigation even though the core investigation might be done by the investigators. Is that more or less the relationship between the two arms?
Mr Tebele: The CEO, although I'm not speaking on behalf, but the current CEO is always in investigation meetings. Is always making follow ups in terms of the deadlines that the investigators would have promised. So that is a different scenario now with the current CEO. It's unlike before; the previous CEOs wouldn't even attend your Dashboard meetings on investigations. But the current one is based on that and because maybe her background also comes from an investigation background. That is why she's doing what she's doing. That is all what I can observe. But she's currently managing things in investigation and also reporting to the executive authority in terms of how things are shaping up.
Adv Mpofu: Yes, thank you. That's a positive development in the sense that at least when she's managing the deadlines she'll be knowing what she's talking about, because she attends the investigation meetings as well. Correct?
Mr Tebele: Correct.
Adv Mpofu: Thank you very much, Mr Tebele. You’ve been a breath of fresh air. As I say, I meant it. I was not patronising you, I meant it. If I was still a CEO, I would have liked to have somebody like you working in my organisation. Thank you very much. Thank you, Chairperson
Chairperson: Thank you, Adv Mpofu. Thank you to Mr Tebele. We now proceed to Members. I'm going to invite Members, those of you who have an interest to interact with Mr Tebele, as we always do. Thank you very much.
Cross-examination by Members
Ms D Dlakude (ANC): Thank you very much, Hon Chairperson. Good afternoon to you, the PP and her team and my colleagues. Mr Tebele, good afternoon.
Mr Tebele: Good afternoon, Honourable Member.
Ms Dlakude: Thank you very much. You said in paragraph five of your affidavit that you were responsible for, amongst other things, quality assurance of reports when you worked in the Private Office of the Public Protector. Is that correct?
Mr Tebele: Correct.
Ms Dlakude: Okay, since you were responsible for quality assurance of reports, did you do quality assurance on the CIEX report?
Mr Tebele: Thank you Hon Member. In my presentation I indicated that when I go to the institution the CIEX report was done. My involvement in it was the editorial which I would just call grammar, the spelling errors and stuff. The report was almost at the stage where the Public Protector was considering it for finality when I joined the institution.
Ms Dlakude: Okay, thank you very much, Hon Chairperson. Mr Tebele, what is the role of the Public Protector in the process of quality assurance of reports?
Mr Tebele: The role of the Public Protector is to set up systems in terms of how report should flow from the investigation to the Public Protector. The quality assurance is one of those systems that is there. Because the investigators do quality assure at the end of the day. They go to the Public Protector and the Public Protector will look at the report, go through the report. If the Public Protector has anything they're not comfortable with, they are likely to say 'this report must go back; can you please panel beat the following areas' because they are the ultimate person in the value chain. They get the report after everybody would have seen it and after it has gone through the stages. Unless it is the stage where they are only involved in guiding the investigation process.
Ms Dlakude: Okay, thank you very much, Mr Tebele. There were allegations made against the PP. That she would instruct people to change the report. Or the reports will be released without being quality assured by yourselves who are responsible for that. Is that true? Mr Kekana in his evidence said that sometimes the reports were released without being quality assured. Is that true?
Mr Tebele: I wouldn't know why it will not be quality assured because Mr Kekana was in the quality assurance team. The quality assurance team, it was Mr Kekana, Matlawe and several others were junior. Those formed the quality assurance team. I wouldn't know if they say a report was issued without being quality assured what are they referring to. Because the quality assurance must be done by the person who drafted the report. Then it must go to the senior investigator or to who the person is reporting. There is a chief investigator who must also see the report. There is an executive manager who must also see the report. So if they're saying without it being quality assured, I wouldn't be sure in terms of what would have happened. Did it move from the investigator to the Public Protector without anybody seeing it? That one, I wouldn’t know. Because he was in quality assurance, maybe he's the one who would know better because he was in the quality assurance. My role in the executive office, I was not really part of the quality assurance team. Quality assurance was independent. My role was to assist the Public Protector on reports that are going to her. To the extent that I understand that this report is maybe not correct here and that was my role. But the quality assurance team were the ones who would instruct that this section that you're quoting here, is not well quoted, please take it back. So it's just that I don't know under what circumstances Tebogo is saying that; because they were both investigating and they were quality assuring. So they were the team that was doing quality assurance. I wouldn't know which reports were issued without them quality assuring, unless they're talking about somebody to quality assure other than the quality assurance team.
Ms Dlakude: Okay, thank you very much, Mr Tebele. In your work in that office of editing and correcting the reports, the grammar, as you are saying. Did you in any way give an instruction from the PP to change the content of the reports or to take out some contents of the report and put something that she would have wanted?
Mr Tebele: The reports that I would get to look at, I would either get the reports directly from the executive manager under whose line the report is coming from. Maybe the report would have been submitted to the Public Protector but the Public Protector feels that I need to look at the report to check if the report is okay in terms of grammar; because we believe that report when it comes to the quality assurance part was done. But myself to the extent where I saw that something was not right, I was dealing with the investigators, not dealing with the Public Protector. I never got an instruction from the Public Protector to change a particular report in that fashion. I don't think that it would have been proper because in my dealings with the investigation team, if I have something maybe in Tebogo’s report, I will discuss it with Tebogo until we agree. Not that I should take it first to the Public Protector and tell the Public Protector that I don't agree with Tebogo here. That was never my approach.
Ms Dlakude: Thank you, Mr Tebele. Did you in any way see anything wrong with the recommendations where the Public Protector instructed that the Constitution be amended?
Mr Tebele: Well, as I indicated, the CIEX report my limitation was on the editorial. On that weekend where Mr Matlawe did not pitch up. But the report was then finalised and I can't recall what was in that report and the recommendations that were in that report. Those I wouldn't recall.
Ms Dlakude: Okay, thank you very much, Mr Tebele, for your response. I thought that maybe if you did correct whatever, then you might have seen the recommendations where you can make an input on my question. Chairperson, thank you very much.
Chairperson: Thank you, Hon Dlakude. Before I go on to the next person just to ask all Members, please don't repeat questions. Thank you. I now recognise Hon Majozi.
Ms Z Majozi (IFP): Thank you Chair. May I switch off my video because I'm experiencing problems with our substation?
Chairperson: We have seen you. We will allow you.
Ms Majozi: Thank you, Chair. Good afternoon, Hon Members. Good afternoon, Mr Tebele and all parties involved. I only have a few questions. Mr Tebele, you said when you came into the institution, they used to have a think tank. Is that correct?
Mr Tebele: Correct, Hon Member.
Ms Majozi: Okay. Then they did away with that. Then you were left with your weekly meetings that you would hold in which maybe investigation officers would also report in that. Is that correct?
Mr Tebele: Let me put it this way. The task team meetings were there when the think tank was there. The weekly meetings were already happening in conjunction with think tank.
Ms Majozi: So you're agreeing with me when I say after they did away with the think tank, you were only left with the weekly meetings that you would hold as an institution.
Mr Tebele: No, Chair. No, Hon Member. After the think tank, we still had task team meetings which were the weekly ones and we had Dashboards, which were monthly. Those were the meetings that the Public Protector was chairing besides the think tank.
Ms Majozi: So you had weekly meetings; let alone your Dashboard meetings and so forth. But I'm basically focusing on your weekly meetings that you were having in the institution. You're saying that PP was part and parcel of those meetings?
Mr Tebele: Correct, Hon Member. The Public Protector was chairing the weekly meetings.
Ms Majozi: Then the weekly meetings will be attended by who? I'm asking this because do investigation officers attend these meetings?
Mr Tebele: Thanks, Hon Member. The Office of the Public Protector in terms of the Private Office, they were only offering support to the meetings. The meeting was attended by the quality assurance team and attended by all the executive managers responsible for investigations.
Ms Majozi: Okay, yes, meaning that if there were deadlines and maybe there were deadlines that were not met, it's something that you’d discuss in the weekly meetings?
Mr Tebele: Yes, within the weekly meetings all of the investigations or all of the section 7(9)s that were serving, during those meetings they will have an update. They will have a deadline in terms of when do they finalise these. It will be recorded as such. So those deadlines were monitored during those weekly meetings.
Ms Majozi: Deadlines were monitored during the meetings which means the Public Protector would be informed whether the officers are not yet done with investigations or whatever processes that would follow after that.
Mr Tebele: Correct, Hon Chair. The investigators and the EMs that were attending the meetings were responsible to give updates on the matters that were serving at the weekly task team meeting. The Public Protector would be aware of the dates or the deadlines and the product that is supposed to come out of that meeting and when to expect the product.
Ms Majozi: When you were asked questions, you said it would not be maybe appropriate for an Public Protector to raise one's voice as much, as it's something that you have spoken about in your affidavit. But I want to ask you do you think it was appropriate now, knowing that the Public Protector would have information about these cases and whether the deadline would be met to yell and maybe raise her voice in a meeting. Do you think these people that have came forward to say this is what they've experienced when dealing with cases and maybe the Public Protector would raise her voice in meetings because people would have not met their deadlines. Do you think it was inappropriate or fair to do so because already she would have information that a certain case that they're working on, cannot meet this deadline, or it can meet this deadline, due to the fact that you were meeting weekly, and reporting weekly, that how far are the cases?
Mr Tebele: Thanks, Hon Member and through you, Chairperson. What was happening during the meetings is we would go through the section 7(9)s in terms of a particular executive manager. We were given updates of where the process is and there will be a date given. We recorded the deadlines. If the deadline was given, we wait for the deadline. When the deadline comes, we want to see what product you have. It is not in all cases where voices were raised. I was just talking about instances where voices are raised. But I was not saying that in all the instances where a deadline has not been met, voices were raised. No, it was not. I did not mean it that way.
Ms Majozi: You have answered me. Thank you very much. But maybe one last question. When you came into the institution, you said that you found a think tank. Then they did away with it. In the cases that were from the think tank, I don't want to say all of them, but would you recall, how many cases were won in court? Or the reports given, how accurate they were within the think tank? Would you say that it was the majority of cases that were won or not? Or was the accuracy of the reports given there, was the majority of them or not?
Mr Tebele: I think what Hon Member is asking is the effectiveness of think tank in terms of the quality assurance. You would want to say so many reports served in think tank and so many reports went to court and so many reports were lost. That information I don't have and I’m not sure if we can go back in history to check how many cases served in think tank, whether they were reviewed or not and what was the outcome. That information, Hon Member, I would not have as we speak now but I understand your question.
Ms Majozi: All right. So after…
Chairperson: Thank you, Hon Majozi. That was your last, as you indicated. I now recognise Hon Mileham.
Mr K Mileham (DA): Thank you, Chairperson. Good afternoon members and good afternoon, Mr Tebele. In your affidavit, you stated that you started working in the Private Office of the Public Protector on 1 June 2017. You said to Hon Dlakude that your role in the CIEX report was editorial in nature? Can I ask you, were you involved in any way in the review proceedings of the CIEX/Reserve Bank report?
Mr Tebele: Thanks Hon Member and through you, Chair. No, I was not involved.
Mr Mileham: Mr Tebele, did you attend any meetings with Sefanyetso Attorneys and Adv Bham or with Michael Motsoeneng Bill Attorneys and Adv Motimele with regard to the CIEX report?
Mr Tebele: No, I never attended any meeting with attorneys on the CIEX Report.
Mr Mileham: Mr Tebele, do you have a security clearance?
Mr Tebele: When I joined, yes, I had.
Mr Mileham: Has it not been renewed?
Mr Tebele: It's still with SSA after five years of submission.
Mr Mileham: So what security clearance do you hold or did you hold back then?
Mr Tebele: It was confidential. I used to have security clearances in my career.
Mr Mileham: No problem. In your work at the Office of the Public Protector, have you ever handled or had cause to handle information that would require a security clearance?
Mr Tebele: Let me put it this way, the information in the Public Protector during my time was not classified. So you wouldn't have to know the information that you have, whether it's confidential, secret, top secret. It was not classified. It's only the employees that needed to go through the vetting. But the institution did not have a classification.
Mr Mileham: To come back to my question, none of the information you have handled or any work that you have done has in any way been classified in terms of requiring a security clearance?
Mr Tebele: I would say work in the Public Protector’s Office, be it information coming to the Public Protector’s Office, was not classified during my stay. I don't know now. But I know that the institution is still implementing classification. So we never had a classification in the institution.
Mr Mileham: Why would you need a classification? Why would you need a clearance, sorry?
Mr Tebele: No, that is what the institution wants; people should be cleared.
Mr Mileham: Were you aware that prior to Adv Mkhwebane there was no requirement for a security clearance by members of the Office of the Public Protector?
Mr Tebele: I'm not aware. I was not there. I don't know what was the situation. I really don’t know.
Mr Mileham: Okay. In paragraph 29 of your affidavit you state – this is in reference to the Public Protector raising her voice, et cetera: ‘This was especially so when those in the employ of the Office of the Public Protector are not doing matters the way the Public Protector wants’. What did you mean by that sentence, they are not doing matters in the way the Public Protector wants?
Mr Tebele: This precisely means the deadlines that were given and not adhered to. Then that is when the Public Protector will indicate that, 'you guys you are basically taking me for granted because I'm sitting here assisting the process and you still don't see the need to meet your own deadlines'. That is the essence of my paragraph 29.
Mr Mileham: Did it include, for example, making specific findings or proposing specific remedial action?
Mr Tebele: In the work that I did to support the Public Protector I was not sitting in all the meetings that the Public Protector will have on specific investigations. But to my knowledge in the meetings that I attended that would not have included instructions to say, remove this and not remove that. To the extent the reports were serving, each and every person would give an input in terms of shaping up the investigation and the report. That in itself included the Public Protector but not specific to say remove this, remove that. The final report of the Public Protector will be with the Public Protector. The Public Protector will engage the investigator in terms of what is the content of that information. It is not in all cases where a report will be discussed and I'm present. In those meetings that is where I recorded what was happening. The essence of my paragraph was in relation to what would have been agreed to mostly on the deadlines or on a certain research that was not done. The investigators or the person concerned will be reprimanded during the meeting.
Mr Mileham: Mr Tebele you stated in paragraph 30 investigators had to put in more time, which may include not sleeping in an endeavour to complete reports for purposes of meeting deadlines. Would you agree that that's an unreasonable request or requirement of employees?
Mr Tebele: This is not factual because I did not see an investigator who was not sleeping. But the investigators would say, you know, last night I did not sleep because I was working on this report I needed to finalise. Whether it's reasonable or not, it depends on the circumstances under which the investigator found themselves. If you have four years to complete a report and you did not, now suddenly you have a date to complete it. It will call upon you, as an investigator, to put more time and also to sacrifice maybe your weekends or even your sleep, without anybody telling you that don't sleep. The statement that I put there was what I was observing and what I would hear people say. It is not that the Public Protector said people should not sleep because they must meet deadlines.
Mr Mileham: Okay. Would you agree that such behaviour, for example, going without sleep could compromise the quality of the work produced?
Mr Tebele: It depends. It's not a standalone thing. If the work has not been done in time, everything will happen. If work has been done in time, there could be time to correct. I'm not saying reports that were done in time did not have mistakes. If you don't do your work in time and you find yourself under pressure; there is an element of having to produce a report whether it's good or bad.
Mr Mileham: Mr Tebele, that is not the question I asked you. I asked you, would you agree that not sleeping or going without sleep could compromise the quality of work? I’m not asking about deadlines. I'm asking you, would you agree that going without sleep can compromise the quality of the work produced?
Mr Tebele: Thanks, Hon Member. Yes, it could, because every person has also concentration in terms of timeline. So there is a time where you can’t concentrate. It will compromise it.
Mr Mileham: Thank you. You stated earlier under cross-examination that Adv Mkhwebane had the final say on all reports. Does that mean that ultimately the responsibility for the quality of those reports rests with her?
Mr Tebele: When I said she is responsible for the report, amend the final report. But investigation would have been dealt with by somebody else. In my understanding when you read the report and you feel comfortable with the report and you sign it – that's the report. But it does not take away the fact that you did not investigate.
Mr Mileham: Mr Tebele, you're not answering my question.
Mr Tebele: That is my understanding. All the reports that goes out of Public Protector.
Mr Mileham: You're not answering my question.
Mr Tebele: You can rephrase it, Hon Member.
Mr Mileham: Mr Tebele, my question was, does that mean that ultimately the responsibility for the report rests with the Public Protector? You said she had the final say. Does that mean that she is the person who is ultimately responsible for that report, regardless of everyone else. It’s her signature on that report.
Mr Tebele: Yes, she's the last person to okay the report.
Mr Mileham: Okay. You stated that the quality of reports was not compromised by the changes in the QA process or the increased time pressures. Just a quick question, are you aware of the CIEX judgement?
Mr Tebele: Yes, I am aware.
Mr Mileham: And you're aware that the report was based on a discredited intelligence report?
Mr Tebele: Yes, I read that.
Mr Mileham: That that report contained remedial action that was considered unconstitutional by the courts?
Mr Tebele: Yes, I read that.
Mr Mileham: Do you still believe and stand by your assertion that the quality of reporting did not decline?
Mr Tebele: The quality of reporting did not decline, are you specifically referring only to that report?
Mr Mileham: I’m not. Okay, so I'm using that as an example. I can give you another example. In the Gordhan, the investigation into violations of the Executive Ethics Code. Are you aware of that judgement?
Mr Tebele: Yes, I'm aware.
Mr Mileham: And that the court found that the Public Protector had rewritten or written words into the Executive Ethics Code that weren't there. Are you aware of that?
Mr Tebele: Yes, I saw that.
Mr Mileham: Are you aware that she continued arguing her position in that matter long after the High Court made a finding. In fact, she argued all the way up to the Constitutional Court after the High Court had pointed out that she was incorrect in law in that regard.
Mr Tebele: I'm getting lost, Hon Member. Are you taking me through the judgments?
Mr Mileham: I’m asking you, are you aware?
Mr Tebele: Yes, I'm aware.
Mr Mileham: Okay. So, again, do you stand by your assertion that the quality of the reports that were put out under Adv Mkhwebane did not decline?
Mr Tebele: That is a subject of statistics. If the Hon Member can say there are 100 reports that were issued by the current Public Protector and 70% of those reports were found wanting. Because I don't have the statistics I'm unable to make reference to what you're saying.
Chairperson: It will be your last take.
Mr Mileham: Mr Tebele, with the greatest of respect, you yourself said that the number of reports issued had increased substantially. That’s what you said. Now I'm pointing you to two specific reports and there are others. We can go through them all, if you want, but there are others. Two specific judgments that identified severe factual or legal problems in the reports themselves. My question to you is, do you stand by the statement that the quality of reports, noting that there are factual errors and that there are legal errors in the reports, did not decline under Adv Mkhwebane?
Mr Tebele: Hon Member, in a way you are trying to put me in your corner but I'm going to respond. You can't talk about one report. You would want me to make a statement that the quality of reports declined. How many reports did the courts talk about and then how many reports are still in good standing? That is all what I'm asking for me to give an accurate answer. I would need to check how many reports are still in good standing and how many reports have been set aside by the court. Then I'll be able to say the standard has declined. But currently, I am unable based on one report or two reports or three reports. It needs to be done in terms of a population of the reports for me to say that. I agree with what the courts have said but I'm unable to say to you that there is a decline in the number of quality reports. What about those that are still in good standing? What do we say about them?
Chairperson: Thank you, Mr Tebele. Thank you, Hon Mileham. At that point we're going to take a tea break for 15 minutes.
Chairperson: I now recognise the next speaker, Hon Sukers.
Ms M Sukers (ACDP): Thank you, Chair and welcome, Mr Tebele. Thank you for coming to give your testimony. Your evidence this morning was very enlightening and it was very clear. My questions are mainly brief, but I have quite a few questions that I want to ask you. We have heard that you said you had only once received an audi letter and it had disturbed you. Would you describe yourself as the kind of person who meets deadlines and is task-oriented?
Mr Tebele: Thanks, Hon Member. The audi letter that I said I received and it was a shock. It was in relation to me having received this action for the first time in my career. I want to adhere to deadlines, but I've also missed deadlines in my career. So it's a mixture of both. I have adhered to some and I have missed some.
Ms Sukers: We have heard that the PP is very hard working. Can you describe her work ethic?
Mr Tebele: The experience I have with the Public Protector is the demands in terms of the work, too demanding. That is how I can describe it. Adhere to deadlines is basically what she is. Quality work, it's what she has been advocating. I know that other people will talk about quality in a different way. The systems that were put to make sure that the quality is done. They were there. Yes, the quality could be compromised along the way if it was ever compromised. But she's hardworking, very focused, customer orientated. At some point, I would think that she became more customer orientated than, you know, employee orientated. That is how I would see her. She's really an advocate of the public that are busy complaining to us. In terms of my understanding her work ethic relating to the work, it has been that much of hard working, dedication, do more. Even if you have met your deadlines, please do more, because we still have more that is left. That is what I have been hearing from her.
Ms Sukers: Thank you. Would you say that Adv Thuli Madonsela, her predecessor, based on the work that she has done and the impact of that in terms of our country. Specifically, now I'm talking about the type of cases that got the publicity that it did at the time, contributed to the caseload of the organisation, that more people came to the Public Protector to intervene in their matters?
Mr Tebele: Thanks, Hon Member and through you, Chair. The Office was profiled, yes, during her time. That one I won’t deny. It was profiled during her time to reach a certain degree where people became more aware of the Office itself. I think when the current one came in, through her Vision 2023 she also wanted to profile the Office differently. The Office was mostly profiled by the Nkandla judgement, which in my view, also created more awareness to the public that you can get help from this institution. Hence, I would think that the number of cases we are receiving is in relation to the profile that was done by Adv Thuli Madonsela and the Nkandla judgement that the Office won.
Ms Sukers: Yes. So what we're describing is an organisation that was changing, a leader that came in and wanted to change the organisation's focus. We had an organisation that certainly in terms of its customer and external base now was more aware of its services and its products, right? Would you say that the Public Protector is a team player?
Mr Tebele: Yes, the Public Protector is a team player. I don't think that there is anyone in this office who doesn't know the Public Protector. She has been participating in most of these meetings, mostly relating to work. I think that is where maybe many people don't like seeing her many times. But she is a team player. She does guide her team in terms of the investigation. Yes, she is strict in terms of what needs to be done. That one I won’t take away from her. She is very strict and time-bound.
Ms Sukers: Okay, how many years experience do you have as a senior manager?
Mr Tebele: I think about 20 years now. I've been a chief director for many years up to the level where I am.
Ms Sukers: How would you describe the Public Protector’s ability to handle negative criticism? Has she ever made a mistake or acted in a way where you needed to offer advice or perhaps confront her about that behaviour? How did she react to that?
Mr Tebele: In the space where I am, I mostly respect authority. I wouldn't have done that. Except maybe if I was just advising on something. But the way I respect authority is I cannot confront my boss. That is how I am. I never confront my boss.
Ms Sukers: So you don't give bad news? I mean, if you if you need to differ from your boss, I'm asking, if you needed to differ on a specific opinion. Have you not had any differences where you needed to maybe give a different opinion and needed to challenge a specific decision? Have you never been in that position? Or is it not your disposition to do so?
Mr Tebele: No, not with the current Public Protector. Where I give an opinion, it will be an opinion on something that I think I just need her guidance, but not really relating to the work. I believe that in terms of the investigation, there are those people that are carrying it out that are better suited to give that type of any opinion. I would rather give the opinion to an investigator than to go give it to the Public Protector. That is how I would deal with it.
Ms Sukers: You were part of the meetings where obviously some of the investigators may have had a different opinion or a different view on a specific matter. Do you have any such a situation where you saw the Public Protector having to, you know, absorb a different opinion from staff?
Mr Tebele: Investigation in itself is a different discipline. People investigate and they come up with certain things. There are situations where I have heard the Public Protector giving inputs into investigations even when maybe she might have different opinion in terms of how certain things are. But that is the nature of work because when people sit together where they consider these investigations, there are different opinions that are given. The Public Protector also does give those particular opinions in those meetings. It's not that if it's a meeting where the investigators are presenting then the Public Protector just keeps quiet until the end of the meeting. I think it's how healthy the environment should be where opinions get added into the meeting, because as an investigator, you will depend on other people to shape up your investigation. That is how I've seen it panning out.
Ms Sukers: Were you the direct superior of Mr Neshunzhi?
Mr Tebele: In Corporate Services, yes, Security fell under my discipline. So he was reporting to me in terms of operations. But Mr Neshunzhi had a direct reporting line to the Public Protector and the CEO.
Ms Sukers: Who in leadership informed you of Mr Neshunzhi’s move?
Mr Tebele: It was the accounting officer, that is the CEO, Mr Mahlangu.
Ms Sukers: Do you know why it is that you were asked specifically to speak to Mr Neshunzhi?
Mr Tebele: Because it fell under my portfolio and if he needed to move I needed to know about the move. That is why I was consulted that the leadership would want to shift Mr Neshunzhi from the position that he was in, to another position for operational reasons.
Ms Sukers: I think I read, I'm not sure you can correct me, that you said you were not certain why it was that he was moved. You were just told to tell him that he was being moved.
Mr Tebele: I was told that the leadership would want to move him. Because I was not privy to the report that was given to the leadership, I took what the leadership was saying. I advised Mr Neshunzhi of the leadership decision that they would want to move you. I indicated to him that I cannot give you specific reasons, because I don't have the reasons. But there is a feeling that considering the position you are occupying and the investigations that have been currently going on, it will be a better move for you to move away from Security.
Ms Sukers: I'm not going to expand on that because I don't have time. I would have loved to. In your testimony today you refer to an overwhelming demand on investigators. That was your testimony this morning. What measures were put in place to improve individual and organisational performance in light of the increased output demand that was there to eradicate the backlog? What did leadership, as you refer to it, do to strengthen the organisation in light of the change that was introduced by the new PP?
Mr Tebele: I'm not sure, Hon Member, if I get it correct, because the overwhelming work that I was talking about is in relation to the number of cases that people have. I was not addressing the capacity of those people but the institution does have training that they offer to people. That training for a while did not kick in because of financial constraints. Currently, the institution has made inroads in training with the DOJ, College of Justice and the SIU in capacitating our investigators. But that is not in relation to the overwhelming work that I was talking about, because that is just the amount of workload that each investigator would have had at a particular time.
Ms Sukers: I will just ask this one question. When you received the audi letter, had you been counselled before you received the letter?
Mr Tebele: No, I did not need counselling because I knew what I needed to do. I needed to submit my performance agreement, which was the basis of that audi letter. I did not receive any counselling and I did not reach that stage where I need to be counselled.
Ms Sukers: Okay, the organisation went straight to give you an audi letter?
Mr Tebele: No, the organisation gave me an audi letter and then I responded by giving them what they want.
Ms Sukers: Okay. Thank you, Chair.
Chairperson: Thank you, Hon Sukers. I now recognise Hon Mahlaule.
Mr Mahlaule: Thank you very much, Chair. Greetings to Mr Tebele. Mr Tebele, in your submission to this Committee under oath, you have indicated that you have never seen the Public Protector or the CEO, Mr Mahlangu, intimidate or harass employees. Now under oath, is it your evidence that those who came here and those that are still coming, who’ve made that allegation, have misled the public and this Committee?
Mr Tebele: Thanks Hon Member. It needs to be recorded that the period that I'm dealing with is the period from June 2017 to October 2018. The statement that I made was made in terms of where I was present. I did not make the statement in terms of what other people are saying. It's where I was present. At this stage, I am not going to say the people that you heard were lying because I was not in the environment where they were when they experience what they experienced. I only mentioned the situation where myself I was and I said I never experienced it. So it's not a question of people said that; and I'm saying they did not. I'm not countering what people have said. They could have experienced it in their own way but they did not experience it in my presence.
Mr Mahlaule: Thank you. We have heard that senior managers and executives are leaving the employ of the Public Protector SA . Do you think that has weakened the organisation? And has the integrity and honour of this Office of the Public Protector in any way eroded?
Mr Tebele: Thanks Hon Chair. Hon Member, the coming and the going of people in an institution I think it's normal. People go, other people come; that is something that is not stopping and people go for different reasons. I wouldn't know the staff turnover that you’re talking about; what would have been the cause of the staff turnover. But as an institution, I think that we would want to hold onto the experience that the institution would have built over time. Yes, when people leave you are bound to lose the experience in that person. But through the recruitment process, you will gain another experience. So that is what I can say. I don't think that I am in a position to say this would have weakened the institution because institutions, people resign and others are coming. That is normal in any institution, irrespective of what type of institution. To me, the resignations that are happening could be people getting new, good offers, getting new places. I don't know the reasons why they would leave. But I have not assessed whether the institution became weak because people have resigned and I would not have assessed that the institution became stronger when other people were appointed.
Mr Mahlaule: Thank you. There was an SMS this morning, a display of SMS exchanges between the Public Protector and Ms Basani Baloyi. When you responded to one of the questions, you said, you would not know why the Public Protector would inform Ms Baloyi to be careful of what he says. You submitted that you have known the Public Protector for a very long time and you have good relations. Do you interpret the SMS or the information that the Public Protector was conveying to Ms Baloyi – would you say the Public Protector is a dishonest person to you? And if not, what is your interpretation of that message? Do you think her utterances may have created distrust between you and the COO, Ms Basani Baloyi? That will be my last question, Chairperson. Thank you.
Mr Tebele: Thanks Hon Member, I would not know under what circumstances the author of the SMS would have said it. I did not know because Ms Baloyi Basani never communicated that SMS to me. When I look at the SMS, I think it's dated 2019. I have been in this institution since that SMS and I am still here since that SMS. I've been interacting with the Public Protector in terms of the work that the CEO Office does. So at no stage, did I suspect anything. Even now, as I'm sitting here talking to the Committee, that SMS is noted from my side. But there is nothing that I can do on the SMS. I cannot change because of the SMS because I don't know under what context and why it was done. I'm not going to label the author of the SMS in how the author saw me when the SMS was sent. I'm indifferent. I remain who I am and loyal to this institution even after that SMS. I believe the SMS would have died in time, considering when the SMS was done. I had no confrontation from the Public Protector. If she is the author of that SMS, I’m indifferent. How I see her and how I see the institution, it remains the same. I could be disappointed and trying to understand what the SMS meant. But for now, I don't think that it will help me because it's almost three years or two years ago; if I go to the past then I won't go forward. Thanks Hon Member.
Chairperson: Thank you, Mr Tebele. I now recognise Hon Herron.
Mr B Herron (GOOD): Thank you, Chairperson. If I may refer to Mr Tebele’s evidence earlier this morning. Right at the beginning where he referred to being appointed in June 2017. In his affidavit, paragraph four says, ‘I applied for the abovementioned position in the Office of the Public Protector, in the Private Office’. Mr Tebele, I assume from that paragraph that the position was advertised and you went through a normal recruitment process before you were appointed? Is that correct?
Mr Tebele: Correct, Hon Member.
Mr Herron: Was the issue of a security clearance part of the recruitment process; was it part of the advert? Or was it part of your contract that you had to have a security clearance? Was your contract conditional on you being granted the appropriate security clearance?
Mr Tebele: I don't recall but I don't remember so. Even now, I don't think that it is a condition of employment.
Mr Herron: You said earlier that you did have a security clearance and you're now waiting for a renewal?
Mr Tebele: When I came to the institution I had a security clearance that was almost expiring. I submitted my Z204, as required by the office. Even today, I'm still waiting for SSA.
Mr Herron: But you don't regard it as a condition of your employment?
Mr Tebele: I've never seen it as a condition of employment. Throughout my experience in public service, security clearance was never a condition of employment. It's something that gets required when you are in your job. That is what I know. I don't know if things have changed now security clearance is a condition. If security clearance is a condition; it means you will never be appointed until the clearance is done. That is what it means.
Mr Herron: Okay, I asked because there was some evidence previously from I think Mr Samuel – it would be hearsay evidence – that there were some members of staff who were forced to leave because they could not obtain a security clearance.
Mr Tebele: Well, I'm not aware of those conditions. Maybe there are reasons for that to have applied to those people. But I'm really not aware; I can’t give comments on those. The statement that I'm giving it's a general statement in terms of my understanding of recruitment in public service, which I have been a member for the longest time. Security clearance is always not a condition to employ a person. It becomes a condition when you are inside in terms of access to information because the purpose of security clearance is to regulate what information can you have access to, not whether you can come to the job place or not. That is my understanding of security clearance. Otherwise, security clearance takes long and the institution would not have employed people if security clearance was a condition of employment. I take it that is how the Public Protector applies that principle.
Mr Herron: When you were acting as the executive for corporate services for a while, that would have included the HR function. You were not aware of whether security clearances were a requirement for employment at the Public Protector’s Office?
Mr Tebele: As I am saying, I have not seen any document where security clearance is a condition of employment in the Office of the Public Protector.
Mr Herron: Earlier on, Mr Tebele, you spoke about when you were in the Private Office of the Public Protector. That you would receive reports and you said some of them belonged to the Deputy Public Protector and some belonged to the Public Protector. How were the reports, and I assumed they were investigation reports, how were the roles separated or divided between the Deputy Public Protector and the Public Protector? Who would handle what kind of matters? How was that managed?
Mr Tebele: Thanks Hon Member. Through you, Chair. I think in my statement. I said the information that was flowing to the Private Office will be information that will be destined to the Public Protector. I did not specifically mention reports. In Private Office, we get all kinds of information. What goes to the Public Protector in terms of investigation depends on the delegations that the Public Protector is having with the Deputy Public Protector which is normally not part of where I come in. The jury might say that the Public Protector was assisted by an investigator to do a certain investigation. But those investigations were not disbursed by the office which I was supporting. They were agreed upon by the executive authorities in terms of which ones they guide because remember they were not investigating. It's only the teams that were assisted by the two executive authorities. How that was done, I don't have a clue.
Mr Herron: If I understand you correctly, there was a delegation of some oversight over investigations to the Deputy Public Protector by the Public Protector?
Mr Tebele: In my understanding it's the work of the Public Protector and the Deputy Public Protector. The Public Protector delegates to the Deputy Public Protector. That is how I understand the work to be.
Mr Herron: Finally, the evidence leaders this morning suggested that we were going to hear some evidence that it was frowned upon or there was a culture perhaps of fear within the organisation around taking annual leave. Which you, I think, denied being the case. You have been there five years, have you taken annual leave in the last five years?
Mr Tebele: Yes, I did. In the case where I did not, it is not because people declined. I think in my earlier statement I indicated that leave in general is given for operational reasons. So when you apply, you are saying to somebody I would want to go on leave, can you please approve it? Which means that person can say no or can say yes. When they say no, they've got their operational reasons to say leave is denied. But what I did not comment on is the 'frowning upon' because I wouldn't understand. When you make an application and some is frowning, it’s a facial expression and somebody frowns on it. Our leave is done automatically on the system and I don't know if 'frown upon' is the correct word. When leave is declined, it can be declined for different reasons. I don't want to comment on the leave that was declined because I was not privy to the reasons leave was declined. I was merely giving a synopsis that when you apply for leave, you are requesting to go on leave. If your supervisor says, we have gotten a lot of work. Can you please do this before you go on leave? That is always understandable. But how their leave was declined, I wouldn't know. I'm sure they've got evidence that this leave was declined and then this is the frowning upon me applying for the leave. But I can't speak for those. I was speaking about the leave in terms of my understanding. Yes, myself, I've taken leave which was approved.
Mr Herron: Finally, not to over belabour the point but I guess every employment contract no matter where you're employed has a provision that leave will be taken at the discretion of the employer, always related to operational requirements. That's not an unusual clause. I guess by 'frowning upon' the colloquialism is that the taking of leave was perhaps discouraged; but you're saying that the application process was an automated or electronic process?
Mr Tebele: We currently have an automated system where you apply. In certain circumstances we do have a manual system which is a backup. Because I wouldn't want to comment in terms of the leave that was declined and frowned upon. I was just giving a principle in terms of leave. You apply. Yes, the basic conditions of employment indicate that you are entitled to annual leave. But when do you take it becomes operational in terms of how you are allowed to take leave. I wouldn't know the circumstances in which leave was declined. That is why I'm saying I'm reluctant to talk about it because I don't have anything. But in terms of principle, every individual needs to go on leave at a certain point, which is allocated on the system.
Mr Herron: Okay. Thank you. Thank you very much, Chair.
Chairperson: Thank you. I now recognise Hon Nqola.
Mr X Nqola (ANC): No, Chair, my questions have been covered. Thank you.
Chairperson: Thank you Hon Nqola. I now recognise Hon Skosana.
Mr G Skosana (ANC): Thank you very much, Hon Chair. Greetings to everyone. Mr Tebele, can you hear me?
Mr Tebele: Hon Member, I can hear you. Maybe for the record my surname is Tebele.
Mr Skosana: I thought that is what I said, is that Mr Tebele? Maybe my pronunciation might not be that good. Mr Tebele, is your current position at the same level with your previous one?
Mr Tebele: Yes, it’s the same.
Mr Skosana: Why did you opt to leave your previous position for this one if they are both at the same level?
Mr Tebele: When I left the Private Office in 2018 that was when the CEO, Mr Mahlangu, joined the organisation. I think he joined in May. I think after his observations he felt the need that Corporate Services should have a person because it was big with about seven senior managers having all to report to the CEO. He approached me to say wouldn't I want to hold the fort in that area considering my experience to assist the organisation and also to assist him to manage the institution better. At that time, the Corporate Services executive manager post was open and it is still open because the institution could not fill it due to financial constraints. So they needed somebody who can come and hold the fort in that area. That is how I was requested to go and act in that area. When I was acting in that area, the need to continue the work in executive support continued because my role there, I was managing the Dashboards; I was managing the EXCO meetings; your MANCO and my role there was still needed. They said do you mind if you can vacate the post and occupy the post that is vacant in the CEO’s Office as a matter of principle but continue in your acting so that the post in Private Office is freed up and it can be filled? And that is how I moved to the CEO’s Office. I remained acting in Corporate Services until last year when the current CEO came in. The current CEO said no, you know what, I'm very much new in this organisation. I would really want you to come to the position and that is how I went to the position.
Mr Skosana: Okay, what is the actual difference between the think tank and the task team? Besides the fact that the think tank was meeting quarterly and the task team was meeting weekly? I'm talking about in terms of the form and operations, what is the actual difference?
Mr Tebele: Thanks, Hon Member. I think those organisations had their terms of reference but let me give my understanding in terms of how they differed. Think tank was considering reports that were ready for the Public Protector to finalise. That was the organisation that was looking at the report, critiquing the report and almost like giving input into that report. In the think tank, we did not have section 7(9)s that would go to think tank as much as I can remember. Whereas in task team, we were monitoring investigations that are ripe for reporting. Once an investigation reaches a report stage in the form of a section 7(9) it will be tabled to task team for monitoring until the report is issued. Within the task team there were special attention matters which would serve in that committee and there were EMEA matters which will serve in that committee. Whatever task team was doing was not the work that was done in think tank. Think tank was mostly quality assurance reports, going throughout the report in terms of legislation, findings, all the phases of the report and critiquing the report. That was not the case in task team. Task team, we were monitoring the reports and quality assurance team members were monitoring both section 7(9)s and the reports. The quality assurance team was the secretariat of think tank. This meant that when reports are ready, then the quality assurance team, through the task team, will table them at think tank for finalisation. That is the difference that I can put.
Mr Skosana: My next question. Did the frequency of task team meetings increase at any stage from weekly to daily?
Mr Tebele: No, task team meetings remained weekly. With the task team meetings, I think what happened is due to commitments, the Public Protector could no longer chair the task team. The delegation was done to the COO, if I remember well, and they were still happening weekly. The daily meetings that you're talking about, I'm not aware of daily meetings which replaced task team during my time in Private Office.
Mr Skosana: The next question, Mr Tebele. Mr Kekana gave evidence that Mr Nyembe was introduced as the political adviser to the PP. Is it true that Mr Nyembe was the political adviser to the PP? Or that he was introduced as such?
Mr Tebele: I don't know about the introduction but what I know is that Mr Nyembe was advisor to the Public Protector. But in what capacity whether political, economic that I cannot tell but he was the advisor. I don't know the introduction that Mr Kekana is talking about. I'm sure maybe it happened somewhere where I was not there. But I'm aware that Mr Nyembe was the advisor in the Office and was advisor to the Public Protector.
Mr Skosana: My last question, Hon Chair. Mr Tebele, was this innovation of the executive authority assisting investigators capsulated in a policy document in the organisation. I think you spoke earlier about the issue of the executive authority of being too operational. Is it encapsulated in a policy document of the organisation?
Mr Tebele: Thank you, Chair. Thanks Hon Member. I don't think that the management style would be in a policy document. I think executive authorities or leadership, they observe how the institution functions. They determine in terms of how they would want to assist the institution to function better. So it can't be a policy where you regulate even how you can interact with people. I am not aware of this as a policy. I wouldn't imagine that could be a policy where the Public Protector wants to talk to an investigator, it must be regulated in a policy. I don’t think that it is there in the institution.
Chairperson: Thank you, Mr Tebele. I now recognise Hon Gondwe to briefly interact with you.
Dr M Gondwe: You know it's not going to be brief but anyway. Mr Tebele, did I pronounce it properly? Did I pronounce your surname properly?
Mr Tebele: It is Tebele.
Dr Gondwe: Mr Tebele, you stated in your evidence that you know Adv Mkhwebane from your university days. You and Adv Mkhwebane kept in touch post your university days. Please confirm if you have a personal relationship with Adv Mkhwebane?
Mr Tebele: Thanks, Hon Chair. Yes, the relationship started during the university days. If I may put it in context Adv Mkhwebane and myself we were, call it, study mates. It was five of us including her and other colleagues assisting each other during those difficult days of discussing certain subjects, like accounting. That is how we knew each other. After the graduations, we minded to know where some of our colleagues were. I happened to work around Pretoria and she happened to work around Pretoria. The five of us, we were around Pretoria. Unfortunately, one passed on in 1998. Then we remained knowing each other. That is how I would say it's a relationship from university days which just went on even if we were working together, but it's not a personal relationship that I would say every day we were talking. There were years where we could spend two years without talking. That is how that relationship was.
Dr Gondwe: Thank you. Can you confirm to this Committee because I got lost a bit whether a top secret security clearance is a condition of your continued employment at the Office of the Public Protector, despite the fact that you do not handle classified information in your day-to-day duties?
Mr Tebele: I think in my response I said I don't remember security clearance as a condition of my employment in public service. That is what I said because I indicated that if that was a condition of employment it would mean institutions could take forever to appoint because they all rely on it.
Dr Gondwe: I’m going to interrupt you there, Mr Tebele. My question is around your continued employment at the Office of the Public Protector. So not a condition of whether you're employed or not but your continued employment.
Mr Tebele: I will put it this way. My employment in the Public Protector South Africa is of a permanent nature. That is what my appointment said. I don't remember where they said, if you don't meet the security clearance in a particular time, your employment will be terminated.
Dr Gondwe: So, have you applied for top secret security clearance since having assumed employment at the Office of the Public Protector? And if you have done that, why did you do it?
Mr Tebele: When I was interviewed, I was told that one of the requirements would be for me to submit the Z204 to the institution. The Z204 I recall I submitted it during the interviews, even before the appointment. When I was appointed, I took it that the institution is busy dealing with the vetting.
Dr Gondwe: Thank you. My next question is in paragraph 13 of your affidavit, you stated that Adv Matlawe, who was at the time was leading quality assurance in the Private Office of the PP, was not happy with the fact that he was reporting to Ms Molelekoa, who had no legal qualification. She was the acting Chief of Staff at the time. You further stated in the process of your cross examination that the tension between Ms Molelekoa and Mr Matlawe started when she started making inputs to investigations and reports. What sort of inputs was she making in investigations and investigative reports? What were Ms Moleleoka’s qualification, given that her original position is that of customer services manager? And do you believe that Mr Matlawe’s unhappiness was justified or reasonable?
Mr Tebele: Thanks, Hon Member. I wouldn't want to deal with the qualification of Ms Molelekoa in this forum. As I've indicated, the consternation was due to Mr Matlawe saying that Ms Molelekoa is not a lawyer. Why should she ask them about legal issues? Because of the position that Ms Molelekoa was holding in terms of managing their staff in Private Office, she needed to go through all the documents that were received in the office. I don't know specifically what is it that she commented which Matlawe did not like. But her position, we were reporting to her as the Chief of Staff in that office. It happened that Mr Matlawe did not like that because of the qualification. I wouldn't want to dwell on the qualification of Ms Molelekoa. It's not my area. Thanks, Hon Chair.
Dr Gondwe: Thank you in paragraph 14 of your affidavit, you state that due to Mr Matlawe’s failure to attend the quality assurance meeting held over the weekend, he was issued with an audi letter by Ms Molelekoa. Who came up with the idea of issuing audi letters to offending employees? Was the issuing of these letters done in consultation with Legal Services or the HR unit? Please explain how these audi letters would work and how they were phrased? I'm asking this because in terms of our country's labour laws, before an employee can be formally be charged, certain corrective steps have to be taken by the employer. You stated that you received an audi letter for not submitting your own performance agreement that you drafted. Was every employee in the OPP required to draft their own performance agreement? Was this a general practice in the office?
Mr Tebele: Let me not deal with the specific in terms of who was required to draft the report on behalf of another one. Let me deal with the audi letter that was given to Matlawe. I knew about the audi letter because Mr Matlawe told me so. The audi letter, I think it needs to be interpreted that it was not given because of the weekend only because you can’t give an audi letter to somebody who did not pitch up on the weekend. Subsequently, the following week Mr Matlawe did not come to work – without a reason. I think that is where the audi was given. I'm not sure how he saw the audi. But as a legal person, I think if he knew that the audi was not correct, he would have contested the audi. At this point, I'm not in a position to tell you under what circumstances should an audi be given because circumstances differ. I don't know the circumstances that the people were given an audi letter. I know my circumstance that I was given the audi letter. I did not see anything wrong. I complied. The audi letter, I think, ran its own time in terms of when it was done. So Hon Member, I cannot assist in terms of what the labour laws are saying in giving people the audi letter. But I think each case should be treated on its own merit and see if it were not valid under the current labour laws or the then labour laws. Thank you, Hon Member.
Dr Gondwe: In paragraph 32 of your affidavit, you state that in your view, Adv Mkhwebane’s predecessor, and I assume you're referring to Adv Madonsela in this instance, produced far fewer reports than Adv Mkhwebane. Your evidence in this respect gives the impression or seems to suggest that Adv Mkhwebane was fixated on the quantity of the reports produced by the OPP rather than on the quality of these reports. We heard evidence given by Mr Samuel that at some stage or another, investigators were restricted when it came to travelling and official vehicles were grounded. As such, they were restricted to conducting these top investigations and could not for example, conduct inspections. However, isn't quality more important than quantity at an important constitutional institution such as the Office of the Public Protector? Hence some of these reports being taken on judicial review and the manner in which some of these investigations were conducted was being called into question in some of these court judgments.
Mr Tebele: Thanks, Hon Member. You have raised a lot of issues. But let me deal with the statement in paragraph 32. I made the statement in observation on the number of reports that would have been issued prior to the current Public Protector. I did not make the statement in terms of the quality the reports vis-à-vis the quality of the predecessor's reports. Because that would be a mathematical calculation in terms of how many reports Adv Mkhwebane issued and how many of those reports were set aside. And on what grounds? Was it merits? Was it technicality? And how many reports did the predecessor – even if I'm reluctant to talk about that because I was not comparing. I was comparing performance in terms of what I've observed. To say if you had the same number of people, you issued 2025 reports. During those years, the reports were not even binding yet so they could not even be tested. I'm not saying they were not tested or they were not binding during that time. We will have to check the reports that were issued after Nkandla. How many of them were issued after Nkandla when the remedial actions were binding and out of those reports, how many of the remedial actions are still standing? And come to the current period and compare how many reports she issued in each and every financial year. How many of them are under review? How many of them have been set aside? And come to a conclusion that the production of the many reports lead to the quality being dropped. I think at this stage, we might be speculating without those numbers, thanks Hon Member.
Chairperson: That will be your last point.
Dr Gondwe: Is this my last question?
Dr Gondwe: All right. In paragraph 38 of your affidavit, you concede that there was an increase in the litigation involving the Office of the Public Protector. You attribute this increase in the litigation involving the OPP to the approach taken by the courts that effectively rendered the remedial action of the Public Protector binding. Are you saying that prior to the courts making this pronouncement, the remedial action of the Public Protector was not binding? Hasn't the remedial action been binding and what effectively happened in the Nkandla judgement was that the court clarified the binding nature of this remedial action?
Mr Tebele: Thanks, Hon Member. Before Nkandla, I'm not aware of a situation where the remedial action of the Public Protector was held binding and the institutions were bound by the reports. I am not aware of it. That is why I made the assertion that because of the binding nature of the remedial action, the litigation in the institution went up. I might be wrong, but I think before then Nkandla judgement, you could ignore remedial action and nothing would happen. That is what I think happened during that time. I'm not aware that the remedial actions were binding. The Nkandla judgement confirmed that they were binding. I thought the Nkandla judgement was the first to say remedial actions of the Public Protector cannot be ignored. If you want to challenge it you must go to court to challenge the remedial action. Before the institution, I think, was operating almost as an ombudsman where you make recommendations. Whether they follow them or not is a different thing altogether. I might be wrong. But that is my understanding of the situation. Hence, my paragraph in terms of the analysis that we make. Since the Nkandla judgement, we have seen many reports being reviewed. Our understanding is because you cannot ignore them. You needed to go to court and deal with the situation. I might be wrong in my understanding.
Chairperson: Thank you, Mr Tebele. Yes, you've covered the point. Hon Maotwe.
Ms O Maotwe (EFF): Thank you very much, Chair. Greetings to Mr Tebele. Mr Tebele, earlier on you spoke about the backlog at the Office of the PP. Now when the backlog clearing initiatives started, was there ever conversation about how poorly the PPO is funded, in your knowledge? And if so, what were the mitigating measures that the Office took to try to overcome that?
Mr Tebele: Thanks, Hon Member. My response to your question may not be the same as how you have phrased it. The challenges within the institution in terms of budget constraints; when I came to the institution, the constraints were there. I even remember that I think the Public Protector and the then CEO had presented to the National Treasury in terms of how they think the institution should be funded. If my memory serves me well, the institution was getting about 264. So the constraints financially; they have always been there. But I'm not sure whether I can marry the constraints, the financial constraints, to the output of the institution. Except to say, due to those financial constraints, the institution could not appoint more investigators. We had a lot of positions that were not funded in the structure. As such, I think the institution could not get to the investigations that they needed to with the workforce that they had during that time. But I'm not sure whether the funding itself alone could have led to the institution not being able to deal with the backlog. That analysis I don't have.
Ms Maotwe: Okay, thank you. Let's move on to some of the executive managers who would carry out investigations or were overseeing the investigations. Was it not beneficial for the PP to know which investigator is doing what and where each investigation was? Meaning how far? And in your knowledge, is there any law that prevents the PP from doing that, from checking progress and finding out what's happening with the investigations, so on and so forth?
Mr Tebele: Thanks, Hon Member. I think the question was asked before but I think I will respond to it. In terms of operations, I don't seem to know of any law that really prescribes that if you have this hierarchy of responsibilities, you cannot jump from one to the other. In terms of my interaction with the unit, the Public Protector had always interacted with every investigator that was investigating a matter that Public Protector needed an update on, including the executive managers. I think that is just a management style which I don't think that can be recorded in a code that you cannot do this, you cannot do that. I think it's different styles. If you feel that you want to go down to the grassroots to understand which may be Public Protector believed in terms of the people that are working there. I think it's her prerogative to do that. I don't think that there is anyone who can say, no, you are not allowed in terms of any rulebook. Investigation in itself is a technical area and one person alone may not have all of the knowledge that the type of investigation needed because you get labour relations, you get procurement issues, you get complicated matters. At any given point, you need somebody to assist. Should you have a rule where you say this person should not interfere here, I think you may find it difficult to run such a institution. I believe that the Public Protector went down to understand and from there to make an observation. Maybe it's through the observation that she would initiate certain improvements in how the institution functions. Thanks, Hon Member. Through you, Chairperson.
Ms Maotwe: Earlier on, you testified about the weekly meetings that Public Protector used to chair, trying to get a sense of what's going on in different departments and how far the case is. Now and then, she would find some managers are not delivering according to the agreed deadlines who just keeps on shifting the goalposts on their own set deadlines. Now the question is, how was she supposed to deal with such issues? And is it not considered corruption for people to just get paid and keep on pushing goalposts and not bringing back the deliverables?
Mr Tebele: Thanks Hon Member. I'm not sure whether corruption will be the right word. I lack a better word for it. But you are talking about a situation where somebody is employed to investigate and the person is not being productive. I'm sure that is what you're dealing with. But I wouldn't really see it as corruption because corruption has a different meaning to how you are describing it. Yes, there are situations where in the monitoring, certain deadlines could not be met. There are situations where deadlines were met. There were different actions that would have been taken in order to correct that. Or even just to say, give a verbal warning to say you know what, next time, please don't force us into this environment. But I wouldn't really say it's corruption, because there will be an element of what those people should have done in the caseload that they have. They may not have done all according to the standard set by the Public Protector. They are falling short. I think it's incapacity more than corruption. Thanks, Hon Chair.
Ms Maotwe: I think it's corruption. But we can debate that some other time. Also earlier on you detailed the process of the report flowing from investigators to executive managers, quality assurance and finally to the PP’s Office. How easy or difficult do you think it is for the PP to change the report after it has gone through the entire value chain, with possibly the necessary signatures attached to it? Is it easy or is it difficult for her to just change a report?
Mr Tebele: That I really wouldn't know in terms of the easy part or the difficult part. But I would imagine that where the Public Protector has a different view, in terms of how a report has been presented, she has the right to comment on her view in terms of the investigation. But I wouldn't say in her doing that, she will be faced with a situation of changing reports alone. Doing all these things alone, I'm not sure if that is what she will do. But when reports go through the value chain, immediately they pass the last person in the quality assurance and goes to the Public Protector, it does not mean that that report can be issued as it is. The Public Protector has to satisfy herself that the report is in terms of the standard that she would want to issue it. Once that is reached then she will issue the report. I'm sure if that report is not satisfactory to her, it will be communicated back. But whether it's difficult to change it or not to change it, I really wouldn't want to comment on that aspect.
Ms Maotwe: Okay, I'll take that. Can you describe for us the leadership style of Adv Mkhwebane and what's your view about it? Would you say you're happy with her leadership style or not?
Mr Tebele: I really would have wanted to stay away from that observation. I've already indicated that my observation to how she manages the work, is dedication, paying attention to details, paying attention to timelines, eager to make outputs. But from where I'm sitting, I will be wrong to make an assessment on the work and the management style of the Public Protector. That will be wrong.
Ms Maotwe: Okay, and maybe to assist the Committee, what was done at think tank which was different from the weekly meetings?
Mr Tebele: I've already explained it. Think tank was considering reports that were at the final stage that needed the Public Protector to attest. The way the process work is the feeder to think tank was the quality assurance, which was headed by Mr Matlawe. As such, Mr Matlawe was the secretariat to think tank. When the quality assurance is done with a report then that report will go and sit in think tank to get more inputs from the think tank members. That one was different to the weekly meetings where we were considering reports of investigations that were at section 7(9) stage and also those that were at the report writing stage. Then when we were done in the weekly task team meetings, then those reports will go and sit at the think tank. That is where the difference was. Think tank was the last quality assurer before the report goes to the PP. But remember also the PP was a participant to the think tank process.
Ms Maotwe: Okay and we’re talking about Adv Mkhwebane here who received two clean audits 25 years later and who issued 412 finalised reports and more than 58 000 out of the 60 000 plus reports. Do you think the attacks and the negative criticism towards her are justified by the media and the Democratic Alliance?
Mr Tebele: Thanks, Hon Member. I think you wouldn't punish me for not making those political comments. Except to talk about the performance that is there that you have alluded to. I don't want to get into the Committee work. If that is the performance that you have alluded to, let that performance speak for itself. For those that will be considering the evidence. I would really want to move away from it. I was also reluctant to give testimony to a motion that is political. So for now I'm fine with what I said. I don't want to enter the political terrain because it may not be my space. The work of the Public Protector, I think would be there for people to see. How they comment it's a different thing altogether because people comment the way they want to comment. I've given my view in terms of my observations and the experiences that I had in the office. I am sure my view will differ with other views. I think that I would want to leave it at that, Hon Chair, if you don't mind. Let me not get into the politics of the process.
Ms Maotwe: Okay and that's fine.
Chairperson: That will be your last question.
Ms Maotwe: I’ll club the two questions together then Chair. Earlier on you testified about having received an audi letter for not submitting your KPIs. Did you regard that as harassment? And would you equate raising your voice, in inverted commas, to harassment?
Mr Tebele: I did not regard it as harassment because it was done in the normal course of business. People's voices differ depending on circumstances. Sometimes people talk softer and when certain circumstances change, then they raise their voice. That is human nature. I wouldn't connotate it to harassment. There are people that are generally loud but they are not harassing. There are people that could be slow in talking but their words could penetrate deeper. So let me not get into the interpretation of a voice in terms of it being harassment. I'm sure harassment has a clear definition. Something that would be regarded as harassment should fall within the definitions that are there of harassment. Thank you Hon Member. I would leave at that.
Ms Maotwe: Chair, can you allow me please? It's not a question to the witness. Just something to put on record. If you allow me Chair, please.
Chairperson: It's called smuggling. You can do it.
Ms Maotwe: Let me smuggle Chair, it will take me less than a minute. We're going to submit a complaint about the conduct of the evidence leaders ambushing a witness with some gossip SMSes that came through this morning, before testifying. I just want to put that on record that we feel very, very strongly that it is wrong. More so that it was sent to the PP Office or rather the advocate last night and the witness never received it. He only received it few minutes before the meeting started. We will be sending the complaint to you, Chairperson. Thank you very much.
Chairperson: Thank you, Hon Member. Your intention is noted after being smuggled. Thank you. I now recognise Hon Nkosi.
Mr Nkosi: Thank you Chairperson. Mr Tebele, Good afternoon.
Mr Tebele: Good afternoon Hon Member.
Mr Nkosi: Mr Tebele, you testified about the think tank. I just want to check did Mr Mahlangu, the CEO, attend think tanks? What was his participation and what was his input?
Mr Tebele: From my recollection, think tank happened around 2017. Mr Mahlangu when he joined, I don't remember, we did not have think tank if my memory serves me well. He joined at a time when we discontinued or the Office was no longer participating in think tank. So he wouldn't have been part of think tank. It was before his time.
Mr Nkosi: Thank you. You continually refer to yourself as a lawyer when other things are said. I just want to check with you then. In doing your editorial work on reports. In other words, putting commas full stops, indenting, etc. When you come across a paragraph that is blatantly against the law, do you ignore that and proceed to submit?
Mr Tebele: Thanks Hon Member. In my presentation I indicated that when I went through the reports where I found that something is not readable or maybe, for lack of a better word, does not make sense. I would go to the investigator. I wouldn't take the report to the Public Protector. I would go to the investigator and say this is not reading well. If the investigator agrees with what I'm saying then the investigator will make amends. That has happened in many instances that I've been in the Office. I wouldn't leave it the way it was. I will engage the investigator so that I don't just impose my input into the investigation, but I did that without going to the Public Protector. I thought I should deal with the investigators so that they can understand my point. Thanks.
Mr Nkosi: I'm saying when you're editing a document and there's something unlawful in the report, do you indent, put a comma and then submit it as is? I'm not talking about readability or not appearing well.
Mr Tebele: I wouldn't understand the unlawfulness of something in a report. Because how will something be unlawful in a report?
Mr Nkosi: If I make a recommendation that is against the law, that is unconstitutional, in a report and you as a lawyer see that it this is blatantly unconstitutional, do you proceed to submit the report as is?
Mr Tebele: I'm sure, Hon Member, you are talking about a situation where the court would have rendered something unconstitutional. Before that time, I may not see it as unconstitutional because maybe I'm not a constitutional expert. What you are raising is something that you can only discover on interpretation in a court of law. But when you do investigation, you do investigation based on the facts. When you provide a recommendation, normally, a recommendation is either you take it or you leave it. I wouldn't understand what would be the interpretation before the court makes a pronouncement. I'm really not understanding the angle from which you want to raise the question.
Mr Nkosi: There's no angle. I'm very straight. I'm saying when there is an unlawful recommendation in a report, do you submit it as is? If you can't answer it to say, no, then we'll proceed.
Mr Tebele: Well, I've never come across an unlawful recommendation in the reports that I've gone through.
Mr Nkosi: You did quality assurance on all reports, CIEX, etc.
Mr Tebele: I said CIEX I did editorial because when I came to the institution the CIEX report and the investigation were all done. We were just assisting to check if the typos are corrected. That is what I have given.
Mr Nkosi: There was a very big typo in CIEX in that the Public Protector suggested that the Constitution should be amended to change the mandate of the Reserve Bank. That was a very big typo. But anyway, let's proceed. You also said that there are standard operating procedures in the organisation. I would like you to provide the Committee with the those SOPs, including the timelines at receipt, progress interim, final of all the reports. Remember, you said you did an ‘age analysis report’. Please provide that to the Chair and the Committee. Thank you very much.
Mr Tebele: Did you expect a response in terms of the request that has been made to me on standard operating procedures of the institution, which the executive authority should give? Sitting here, I know that there are standard operating procedures that is a public document. But I think the Hon Member is also saying to me I must give an age analysis. I don't know whether the age analysis is of the time I was in Private Office or if he is talking about the age analysis of cases as of now? I just need that clarity.
Mr Nkosi: I think you can provide both. In fact, it will help us to make a comparison at the time that you were there and now. The standard operating procedures you can ask the institution to provide. Thank you, Chair.
Chairperson: Thank you for that clarity. Just before I proceed. I see the hand of Adv Mpofu.
Adv Mpofu: Thank you, Chairperson. I think the issue of the standard operating procedures can be attended to by evidence leaders. I think as part of the documents. That was not what I was rising on. I was just objecting to that Hon Member misleading the witness. There is no typo in the CIEX report so it must not be put like that. If it's an attempt at sarcasm then it must be explained because not all of us find it sarcastic. So as a matter of fact, unless there's a typo that we're going to be referred to, there's no typo in that report. The record must not reflect something which is false.
Chairperson: Adv Bawa?
Adv Bawa: I simply wanted to say that the standard operating procedures are in the Bundle and we’ll get the Secretary to direct Members to where precisely it is. The other documentation which is requested we don't have. But I'm sure that with the assistance of Mr Tebele we can get it.
Chairperson: Thank you. I now recognise Hon King.
Ms C King (DA): Thank you, Chairperson. Chairperson, please indulge me if I can switch off my camera. We’re just experiencing some loadshedding.
Chairperson: We will indulge you since we welcome you. I've been looking for you. Go ahead.
Ms King: Good evening, everyone. good evening, Mr Tebele and thank you once again for availing yourself of questions in this Committee. I'm going to start off with paragraph 32 in your affidavit. It was previously mentioned that you said it, ‘in my view, her predecessor produced far fewer reports, given the number of investigators in the OPP’. You did allude to the fact that you draw conclusions from observations. I just wanted to find out, were the observations made from the closeout report of the previous Public Protector? Or was it made from comments in the office made by colleagues?
Mr Tebele: The annual reports of the institution will always indicate the number of reports that would have been produced in a particular year to the extent that the number of reports were a target. That is where the information can mostly be deduced from. That is the comparison that I was talking about, in terms of the number of reports without looking at anything else but the number of reports year on year. That is the comparison I was looking at in previous financial years. This is what the institution would have dealt with and not categorising them in terms of closed reports. I'm sure that exercise to the extent that the information is available can also be done for comparative purposes. I'm not sure if that information is available for the previous, but I was talking about what the institution will always regard as formal reports. I'm sure drilling down to the annual reports, such information could be available in those annual reports. But my comparison was based on what we would call formal reports.
Ms King: Thank you. In paragraph 32, you then stated ‘as I recall, roughly 160 investigators had, during the financial period prior to the current PP taking office, produced about 20 to 25 reports’. Okay, can you see that?
Mr Tebele: Yes.
Ms King: I want to find out, were the 20 to 25 reports over the remainder of the period of Adv Madonsela’s term in office. Or was it just purely on a monthly basis?
Mr Tebele: Thanks, Hon Member. I was not there during the time of Adv Madonsela, so I wouldn't know on a month-to-month basis. Also, if you read the statement, I’ve qualified it in brackets to say, I have not confirmed these numbers and don't claim them to be exact. But what I know is that currently, the reports that have been produced are more than 20 to 25. If 25 is the number and is based on what could be in an annual report and is not based on what is done on a month-to-month basis, because I was not there. I don't know how to get the month-to-month reports. I can only rely on an annual report and make observations. Thanks, Hon Member.
Ms King: Thanks Mr Tebele. On paragraph 45 in your affidavit, you actually state the Public Protector made it clear that she did not want to leave the Office with a backlog for a successor to have to deal with and at the very least, matters preceding 2020 had to be finalised. So if I were to read into that, and I know in a previous statement in your affidavit, you also claim that the Public Protector needed these backlogs to be cleared by September 2021. Would that not provide a strenuous work environment? Especially since you also mentioned the Public Protector became agitated at times, would raise her voice. Was it not clearly then to reach the September 2021 deadline to clear the backlogs?
Mr Tebele: Thanks, Hon Member. The date of 2021 September was specific for certain reports that would have aged in a particular period. Ageing in terms of complaints happens every day. When a day passes, another report becomes four years and over. So the clustering of those reports into the date of September, it was referring only to those particular reports. Ageing of a report never stops. But from what I could get in the meetings I attended and how she was expressing her wish, was that by the time her term ends, let me at least leave complaints that could be 2019/2020. At least they will still be within the timelines. It is basically saying I wouldn't want to leave investigations that have aged too much to the extent that the one coming has to deal with what I should have dealt with. That is what I was expressing here. But the ageing of investigations and complaints, it happens all the time. If today we can go and do the age analysis, you will get a different scenario. But that one was a project for cases to be finalised by 2021. If you do it now, you will still get others that have run beyond their age, in terms of our standards. Thanks, Hon Chair.
Ms King: Okay, I hear what you're saying, Mr Tebele, but I just need to find out as well. For investigators to ensure that they meet the deadline, how many cases are assigned to an investigator on average to clear? I know you talk about the age analysis. You previously mentioned five years. So is it realistic that most cases can be completed within a period of five years?
Mr Tebele: Let me answer it in two parts. In terms of our standards, I don't remember seeing where the standard says a case must be finalised in five years. I think we go to 24, I'm not sure, 36. We don't have five years. As such, cases age all the time. Which means the investigators in terms of how they prioritise the investigation. They also need to take care of those cases that they have received long ago. I think in terms of their investigation style and methodology. But I wouldn't comment on the fairness or the unfairness of expecting the investigators to finalise cases within a certain period, without looking at when the cases were received by the institution and to when the complaint was allocated to the investigator. Because you can't do that without looking at those timelines. In this case, the investigators, they have their own workload. I may not know, as we speak now, what is the fraction of the caseload per investigator, which will differ. Because those caseloads they get allocated in terms of how they get classified. Your earlier resolutions, your complex matters. So they've got classification and they’ve got timelines. Sitting here, I can't tell you what is the average caseload per investigator, because we need to go through each and every investigator and check the caseload. The average is easy to get upon calculation because you simply take the cases that the institution have vis-à-vis the number of investigators and it will give you the average. But that is not the picture, because cases get allocated in terms of their complexity.
Ms King: I hear what you say, Mr Tebele. Earlier, you mentioned that the Public Protector advocates for people who normally render complaints to her office. You also mentioned that if it wasn't for Adv Thuli Madonsela and especially some of the cases she dealt with, people then became aware of the work of the Public Protector. Hence, you've received more of these cases. So is it then realistic to say that the reduction of the awareness clinics on the work of the Public Protector could also have an impact in how you reach people? Can you then have an impact? Or can we safely say that Adv Mkhwebane actually advocates for the complaints of the people, with the reduction of the awareness clinics of the Public Protector?
Mr Tebele: Thanks, Hon Member. I don't know specifics in terms of the reductions. But I think it was an approach that we can do better when we deal with districts. I'm not sure if you are saying the reduction of the clinics could have contributed to the outreach that the Public Protector would want to do – because the Public Protector, still on her own, had roadshows that we continue to have. Consideration of the outreach clinics, I'm sure, was also dealt with in terms of the cost that the institution was facing at that time. I don't think that it was dealt in terms of trying to reduce the access that is propagated in Vision 2023. Because I don't find the relationship between the reduction of the clinics to the reaching of the grassroots in the question that you are mentioning. For me, those two are not related, because there are many ways in which the Office is trying to reach the people through community radio stations. Those outreach clinics is one of the ways in which the Public Protector tries to go to the public, but it is not the only one. Because radio stations also perform that function. You very often go to community radio stations and talk about the work of the Office. I think there is more to do on outreach than only focusing on the reduction of the number of clinics. Thanks, Hon Chair.
Ms King: Okay, my last question. The Public Protector assumed office in October 2016. Eight months later, in June 2017, you assumed office. According to HR processes in the Public Protector domain, who is the final person to sign off on the appointment of somebody taking office? I'm referring now to the Private Office where you were situated.
Mr Tebele: Thanks, Hon Chair. I was not in the institution at the time my recruitment started. I don't want to claim to know how my recruitment was handled. I would want to move away from that part. Maybe HR is the one that could be questioned and answer on my recruitment. Thanks, Hon Chair.
Chairperson: Thank you, Mr Tebele. I now recognise Hon Maneli.
Mr B Maneli (ANC): Thank you, Hon Chair, and greetings to Mr Tebele. Mr Tebele, I’ll make reference to paragraphs without reading the paragraph for you to understand what I’m referring. Paragraph 14 of the affidavit. Did the absence of Adv Matlawe render the report to have not followed the quality assurance standards? Or it was immaterial at that stage of the report?
Mr Tebele: Thanks, Hon Member. I wouldn't understand when you say in the absence of Adv Matlawe. Are you saying during the time that Adv Matlawe would have left? Or are you saying during the time that the quality assurance unit moved away from the Private Office?
Mr Maneli: Thank you, Chair. The question I'm asking is in relation to paragraph 14, which is to the CIEX report. Paragraph 14 talks to the CIEX report where you indicate that Adv Matlawe had not acceded to the request to work that weekend, and therefore, the Public Protector proceeded with the other officials that were present. All I'm asking was his absence or having not acceded to that request, render the report not to have followed the quality assurance standard? Or it was immaterial at that stage of the report?
Mr Tebele: The report was already in quality assurance. I'm just not sure whether Matlawe at that stage had not seen the report. The meeting he could not attend. The report was already there; it was just to finalise the report. So his absence, I wouldn't know what it would have done to the report had he been there, because I would not be knowing his views. But the quality assurance was already done. They were at the final stages of quality assurance of the report in the presence of the Public Protector. Because before that meeting, there was another meeting where he was available when the report was being considered but the work could not be finalised at that time. So the request was to come on another day to finalise the report. I wouldn't know whether his presence would have changed the report. But the quality assurance would have been dealt with because Tebogo Kekana was part of the quality assurance unit. As much as Matlawe was heading the unit so Matlawe was not alone. There were other quality assurance officials who attended the meeting in Matlawe’s absence. Thanks.
Mr Maneli: Would you say then, at that stage of the report, his absence would have been immaterial in terms of quality assurance?
Mr Tebele: I would take an indifferent view because I wouldn't know if he was there what type of input he was going to make. I can't speculate. I have an indifferent view whether he's there or not. I wouldn't know in terms of whatever quality that he would have brought in, that the report would have lacked. If the report lacked any quality. To me, the report had the quality. I want to believe that he was going to be there also to make input. But I can't speculate in terms of what type of input to arrive at whether was it going to be material or immaterial. Because you can't base this on an individual when there are other people.
Mr Maneli: On paragraph 37, Chair, through you, as I said, I won’t read the paragraph. Just two points on that paragraph. In paragraph 37, are you demonstrating that the PP took personal responsibility and accountability for the reports coming out of her Office for public consumption?
Mr Tebele: Even without this paragraph, the Public Protector is the final person in terms of deciding on the release of a report. I would think that the Public Protector would have considered everything when she finally decided that the report is ready to issue. Here I was simply expressing my view in terms of having seen the Public Protector reading reports, not considering a report in terms of its finality. My statement was talking about I'm aware that the Public Protector does read the reports. But what you are asking, you asking if the Public Protector would have satisfied herself when the report becomes final, which in my view, I think that she would. I wouldn't see the reason why she would not satisfy herself and she would still release the report. I wouldn't see the reason why.
Mr Maneli: Still on paragraph 37. The sending back of reports that were not in order or in line with the standards. Did it also imply corrections included the relook at findings and remedial actions that investigators would have presented?
Mr Tebele: Inputs on reports cut across every aspect of the report. You can’t be specific in terms of where to make inputs. There will be somebody who will say, can you please check the findings and see if these findings are correct? Somebody can check the remedial actions. All people responsible for a particular report, before the Public Protector is issuing or considering the report, they must look at all the phases of the report without choosing which area they would want to look at. The remedial actions and the findings are part of the report and are part of the areas where people making comments on the report, will also consider. There is no portion of the report that cannot be considered. I've never come across such a situation.
Mr Maneli: Thank you, Chair. Paragraph 40.
Chairperson: Just pause, Hon Maneli. Adv Mayosi?
Adv Mayosi: Adv Mkhwebane and her legal team have indicated that they've just been kicked out of the platform.
Chairperson: Then they must come back.
Adv Mayosi: I don't know if the problem is on their side or on our side.
Chairperson: It is not on our side. Can somebody check if they are joining? Just a pause, Hon Maneli. Are they in the waiting room?
Adv Mayosi: They are trying to reconnect.
Chairperson: Do you want to call them? Adv Mkhwebane, are you on the platform?
Adv Mkhwebane: Yes, Chairperson. We are here. We had a network challenge but you can proceed, thank you for the indulgence.
Chairperson: Thank you. We proceed Hon Maneli after that pause.
Mr Maneli: Thank you, Hon Chair. Mr Tebele, As I said, I'm referring to paragraph 40 now. In the review and consideration of proactive ways to improve matters you refer to, did this include exercising the discretion on whether to litigate or not to litigate?
Mr Tebele: Is that paragraph 40, Hon Member?
Mr Maneli: Yes. You talk about court judgments and therefore there will be teams that review and so on.
Mr Tebele: The paragraph that you are alluding to is the training that is part of the institution. The Public Protector has dedicated certain officials within the unit that after each and every judgement, they must analyse the judgement and have workshops with the investigation team and also everybody else because judgments sometimes they affect stuff in general. This is so they can understand and get an interpretation of those judgments. Also, the lessons learned from those judgments should assist the institution in improving legal interpretation. There will be areas where the institution can use those lessons again. It was not on the basis of indicating whether you want to litigate or not litigate. It is court judgments which have passed already; the institution makes analysis; they publish those analyses and there are also staff meetings where these lessons are articulated. This is so people in the office can have the knowledge why the work they would have done, has gone the way it has gone in terms of costs. That is the essence of this paragraph.
Mr Maneli: Having explained that, Chair, in your understanding, having been in the institution, whose discretion then is it to make that final decision as it relates to whether to litigate or not?
Mr Tebele: The litigation is done as a strategy from Legal Services. They consult the Public Protector, in terms of their view, in terms of certain matters. A decision gets taken on how the institution should approach that matter. Whether matter will be opposed, not opposed. It is what is coming out of the strategy that Legal Services would have written to the executive authority relating to a matter that is being reviewed.
Mr Maneli: Through you, Chair. Because the question I'm asking is specific. Yes, Legal would have advised and that’s good. I’m asking about the final decision to either go this route or that route, whether it rests then with the legal advice? Or is it a matter that the PP would have to sign off or not sign off?
Mr Tebele: Yeah, I'm sure the question also has a way of looking at the current; I wouldn't want to deal with the current. I would want to deal with during my time. The current I think can be dealt with by Legal Services on what is happening currently, which matters and how decisions are taken. I was basically indicating how the Office of the Public Protector gets advice in matters that are under review. I wouldn't know what is currently happening.
Mr Maneli: Okay, thanks, Chair. May I then proceed to the next question? I want to understand this. In trying to push performance with eyes to 2023, referring to carrying backlogs and all that. Did the employer took into account the conditions of workers or that didn't matter?
Mr Tebele: I'm sure when you look at the workload, you should also look at the available conditions. I don't want to speak for the Public Protector. I'm sure the Public Protector is best suited to indicate that. But to me, you have a caseload which you don't have control over because the institution is the recipient of complaints. We don't choose which one should come, which one should not come. So at the end, whatever you have, you need to investigate. You will have to investigate under whatever conditions you will have to investigate because if you receive 100 complaints per day; your resources remains the same. What do you do? Shouldn't you allocate to the very same resources that are constrained? I'm sure you will do that. I don't want to speak on behalf of the Public Protector because that is what the Public Protector will consider. But I'm just putting the effect in terms of my understanding of the question you are raising. Thanks.
Mr Maneli: Paragraph 18 to 20, when you talk about leaking of information, can you confirm if no wrongdoing was found on your part or Mr Neshunzhi after that investigation that led to confiscation of laptops?
Mr Tebele: In my previous engagement, I indicated that I did not see the outcome of the investigation. In terms of the report itself, what the report contained, I don't know. I only indicated that I was approached by the accounting officer, Mr Mahlangu, in terms of moving Mr Neshunzhi to another section. In terms of myself, I can't say nothing was found. But let me put it this way. Out of that investigation, I was not pursued for anything. I will take it that nothing was found on my laptop. Because up to this stage, I was never dealt with in terms of the outcome of the investigation. But I did not see the report so I don't want to mislead Hon Member.
Mr Maneli: No thanks, Chair. On paragraph 18 to 20 about Mr Kekana, I'll take it that you may have also not seen that report. I will then not pursue that question. May I then check, Chair? This will be the last question. Did you bring to the attention of the leadership of the institution that Mr Neshunzhi was unhappy with moving from Security to CSM without reasons, as the institution would have still expected high performance from him? Thank you, Chair.
Mr Tebele: Thanks Hon Chair and Hon Member. My scope was to communicate and consult Mr Neshunzhi. In terms of how he felt, it's something that I would say he wouldn't have accepted it. If maybe continuously, he felt he was being prejudiced. But he took the advice. As such, he moved to the other unit. I'm not aware of a situation where Mr Neshunzhi raised a complaint. Maybe it would not have come through me. Maybe he would have raised it with the accounting officer at that time that he was not satisfied; but he did not engage me in terms of dissatisfaction about his move, except that he was surprised that he needed to move. Thanks, Hon Member.
Chairperson: Thank you, Mr Simon Tebele. Just before we reach the end, in terms of Directives 6.16 and 6.17, I recognise evidence leader Adv Mayosi. If there's any question, you don't have to generate them, that you want to check? Adv Mayosi?
Clarification by Evidence Leader
Adv Mayosi: Thank you, Chair. I only have one question for Mr Tebele. It's in the form of a request really. But before I do, Chair. The evidence leaders, we can't resist putting this on record and noting that we have appreciation for Adv Mpofu and for his team. Because today for the first time with this witness, there appears to be no misgivings about the fact that the evidence leaders assisted the witness with the drafting of the affidavit. But I'll move on to the request to the witness. Mr Tebele, you spoke in cross-examination about the fact that the Portfolio Committee had often raised questions or requested certain information relating to the rising litigation costs. You said that at some point, you did an exercise where you were comparing or looking at the period before the Nkandla judgement and comparing that to the period after Nkandla judgement and you formed the view that the Nkandla judgement had an impact in the rising litigation and costs. I just want to know did you produce a document from that exercise while you were doing the comparison? And if you did, who is the custodian of that document in the organisation so that we may access it?
Chairperson: Are you still with us, Mr Tebele? Or you're frozen? We'll just pause and wait. Mr Tebele is off the platform. We'll wait for him. Yes, that [Adv Mpofu's] hand will wait for Mr Tebele as well. That's how we do it. We just did it a moment ago and paused.
Adv Mpofu: Chairperson is a dictator. I thought I was muted, Chair, sorry.
Chairperson: Can somebody just interact with Mr Tebele?
Adv Mayosi: He says there’s loadshedding.
Chairperson: He has load shedding?
Adv Mayosi: Yes.
Chairperson: Okay, let's wait. We need now his last comments. He is trying to come in, okay. I thought he was in the Office of the Public Protector because at least Adv Mpofu has an advantage.
Ms Maotwe: It is load shedding brought by the ANC, Chairperson.
Chairperson: Omphile Maotwe, you have just smuggled something in this meeting. Maybe we'll do this and ask Adv Mpofu to raise a hand to indicate the issue he wanted to raise. What would have been left is for us to do was to thank Mr Tebele and for him to say whatever words he wanted to say. That's the only thing left but we struggled to get him back in. We would have waited for him so that he hears everybody. Adv Mpofu?
Adv Mpofu: Thank you, Chairperson. Did you manage to get the witness back?
Chairperson: We spoke to the witness. The witness is trying but loadshedding. We are trying other means for him to come in. We are still waiting.
Adv Mpofu: Thanks, Chairperson. While we're waiting, I just wanted to respond to the statement made by Adv Mayosi. I wanted to place on record that we have no problem with the evidence leaders taking statements. That's what they do. We'll do the same thing with our witnesses. The only problem we have is when they feed them with false information. Or, as this morning, ambush them with gossip. So we will raise those issues as and when they arise. But other than that, we've no problem with them taking statements. Thank you, Chairperson.
Chairperson: Thank you very much. Colleagues, what we're missing is the last voice of the witness. But we know why we're not able to connect with the witness in his absence so that it is recorded. I want, on behalf of this Committee and everybody else in this enquiry, to thank Mr Simon Tebele for availing himself, participating throughout this process, answering all questions. Even if the person who's asking is not happy. We want to appreciate the role that he has played. Hopefully, his contribution is also going to assist this Committee in its final deliberations. Thank you very much. With that, the enquiry is adjourned. We meet tomorrow at 10 when we'll be interacting with the witness Baldwin Neshunzhi, who will be with us. Thank you very much.
Dyantyi, Mr QR
Dlakude, Ms DE
Gondwe, Dr M
Hermans, Ms J
Herron, Mr BN
Jafta, Mr SM
Joemat-Pettersson, Ms TM
King, Ms C
Legwase, Ms TI
Luzipo, Mr S
Mahlaule, Mr MG
Majozi, Ms Z
Mananiso, Ms JS
Maneli, Mr BM
Maotwe, Ms OMC
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
Tseke, Ms GK
Tshabalala, Ms J
Van Minnen, Ms BM
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