PP Inquiry day 15: Baldwin Neshunzhi

Committee on Section 194 Enquiry

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

Video (Part 1)

Video (Part 2)

Video (Part 3)

Motion initiating the Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from the Independent Panel furnished to the NA

Rules of the NA governing removal

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

The Section 194 Committee met in a hybrid format. The Chairperson, the Evidence Leaders and a number of Committee Members were physically in Parliament while the Public Protector, her defence team and other Committee Members joined on the virtual platform.

The witness, Mr Baldwin Neshunzhi, was the former head of security in the Office of the Public Protector.

At the start of the proceedings, Adv Dali Mpofu (SC), on behalf of Adv Mkhwebane, objected to the relevance of the evidence of the witness and said he would provide evidence that would back his objection that the evidence was not in line with the mandate of the Committee.

The Chairperson made a provisional ruling that the evidence is relevant and that the Committee can disregard evidence irrelevant to its investigation. He said the Committee would not reject evidence presented, but Members of the Committee can disregard it for engagement and cross-examination purposes.

The Public Protector's legal team cross-examined Mr Neshunzhi. Adv Matlhape maintained that most of Mr Neshunzhi’s testimony contained in his affidavit is not relevant to the proceedings; however, Adv Matlhape asked Mr Neshunzhi questions of clarity about security clearance at the Office of the Public Protector.

The Committee Members also questioned Mr Neshunzhi. Members raised questions about two episodes: Mr Neshunzhi was told that he had failed to properly investigate an alleged IT security breach; the Public Protector then instructed him to leave the office, and he had to hand in his laptop and office keys. Mr Neshunzhi considered it a suspension. Secondly, he was subjected to “garden leave” following a leak in connection with then Acting CEO, Mr Vussy Mahlangu, not having a security clearance certificate. Mr Neshunzhi said he regarded how he was suspended on both occasions as constituting unfair labour practice, as due process was not followed. However, he accepted being told to move to Senior Manager: Intake Assessment and Customer Services thereafter. There were questions about the SSA Director-General contacting and meeting him when the Public Protector was not happy with the security support Mr Neshunzhi provided the Chapter 9 institution.

Meeting report

Chairperson: Welcome to the Members present in Parliament Room M46 and welcome to the Members on the virtual platform. Morning to the Public Protector as well as her legal team, led Adv Mpofu and Adv Shabalala. Welcome to the Evidence Leaders, Adv Bawa and Adv Mayosi. Welcome to the media, support staff and last but not least welcome and thank you to members of the public as you watch these proceedings with interest. We watch you too, in terms of the things you raise and say. Today is 4 August 2022 and we have the next witness. I now invite Adv Nazreen Bawa and Adv Fatima Ebrahim.

Evidence Leader Adv Bawa: Good morning Chair, good morning everybody, we call in this morning Mr Baldwin Neshunzhi.

Chairperson: Thank you, has he logged on? My timelines for the day remain as they were for the last two days. We will start now from 10:00am with the Evidence Leaders up to about 12:00pm, from there the team of the Public Protector for cross-examination and then we will end with the Members. I am waiting to check if Mr Baldwin Neshunzhi has joined the platform. Just to make sure that those on the virtual platform can hear us, Adv Mpofu can you hear us?

Adv Dali Mpofu: Yes, Chair, we can hear you clearly, sir, but my hand is up.

Chairperson: Thank you, good morning. Let me just check, can you hear us Hon Mulder?

Dr C Mulder (FF+): Yes, Chairperson, good morning. I can hear you all very clearly and my hand is not up.

Chairperson: I see that. Thank you very much. Whilst I am waiting for Mr Neshunzhi, I will go to the hand that I see.

Adv Mpofu: Chair, I just wanted to address an issue which might be conveniently addressed even before you swear in this witness. We want to register an objection as to the relevance of this witness. In terms of the directives, it is your decision on relevance. Without wanting to sound like a broken record, as you know, we have objected to the directives. But even on the basis of the directives as they stand, it is our respectful submission that this particular witness, and even some of the other so-called disgruntled employees are going to give evidence which is not relevant to the motion that is before you. And all we want is just a ruling from you. We obviously will have to go along with whatever ruling you give. If then you can just give me just a few minutes to address why we say this witnesses is not relevant Chair. Our starting point is that relevance must be gauged against the business that is in front of you. Now, we have a problem, of course, again, without revisiting that issue, in the sense that, in our view, the committee should be basing itself with those matters that I'm sure you'll understand it better, Chair, that would have gone through the eye of the needle, which is the Independent Panel. We've put our views on that; there's been a ruling against us on that. That is a matter that we don't want to reargue now. The only reason I'm mentioning it is to make the following point that, in our view, even on the rational widened scope of this inquiry, the evidence that is about to be presented is completely irrelevant. Or rather maybe we should be posing the question to the Evidence Leaders, since they are the people who have called the witness, as to what is the relevance of this evidence? And if it is relevant, to which issue is it relevant and why? Chair, we're doing this not frivolously; we’re doing it to demonstrate that this Committee should not be tending to be some complaints office for people who might have gripes about this or the other in some office in one of the provinces or even at head office, because that's not the business of this Committee. It's not even the business of the Portfolio Committee on Justice to which we report or to which the Public Protector normally accounts, let alone this one, which is an ad hoc committee specially constituted for a particular purpose, so its purpose is confined. In this case, it's confined by the motion. I've heard of a fair number of the so-called disgruntled employees, that’s fine, insofar as their evidence might be relevant to one of the issues. It must be remembered that the core of the complaints around which the so-called impeachment charges are based, as summarised also even by the independent panel, revolves around charges of misconduct, which is defined in the rules, or incompetence which is also defined in the rules, based mainly on the confirmation or refutal of the adverse comments made by judges in four main judgements: CIEX judgement, Vrede judgement, Financial Sector Conduct Authority (FSCA) and of course, CR17 judgement. It was correctly summarised that there was an exception to that, which was the evidence of Mr Samuel, which I have gone through with the Committee before. And these allegations of so-called victimisation and harassment and all that, are associated with internal stuff. So this thing has now turned into, as I say, a complaints office, away from its core issues, which are the comments that are contained in the judgments. And this witness, in particular, and I'm sure all the Members have read his statement does not even approximate to deal with the issues that are raised in the motion, or at least as I say, if we're wrong, then we pose that as a question. And we would like to be told or the Committee to be told, what would be the relevance of hearing from someone who says, “Oh, well, you know, I was transferred from one department to another”. So what has that got to do with whether or not Adv Mkhwebane is guilty of the of the charges as defined in the rules? In other words, let's assume everything he is going to say is true. What value does it add to the determination of the question in front of you? Because otherwise, we can have a long list of everyone who says “no, I was denied leave” and this one says “no, I was beaten up but it was not followed up"; but until that can be traced or connected to the motion, then it might be interesting to listen to, but the question is, is it relevant? We say it is not. And if this Committee...if this process really costs R1 million...

Chairperson: I think you have covered; I have heard you very well. If perhaps you can now wrap up, Adv Mpofu?

Adv Mpofu: Okay Chair, that’s fine Chair, I’m almost done. The only point I wanted to make is that the issue of relevance is not just one that floats in the air. It is related to the speed with which this process has to be finalised, because by its nature, it is one that is depriving the Public Protector of her, you know, her ability to continue working. But that is not even the most important thing. The most important thing is that the longer this thing goes, the more the public is deprived of its Public Protector. And the point I was making Chair, when you intervened, was if it is true that this process cost R1 million a day, that for the public representatives should be reason enough to ensure that we don't sit here and spend more days on unnecessary evidence that does not add any value to the determination of the question. Thank you, Chair.

Chairperson: Thank you Adv Mpofu. Before I respond and make a ruling, I'll hear quickly from Adv Bawa.

Adv Bawa: I’m fully in agreement with Mr Mpofu that only evidence relevant to determining the veracity of the grounds as set out in the motion should be before the Committee. Where evidence is put before the Committee that is not so relevant to the grounds, the Committee must disregard that evidence. We have been going back and forth to the extent to which the Evidence Leaders have assisted witnesses in compiling the affidavits. We don't always have sole say of what the deponent wants to put into the affidavit. We have refrained ourselves from demanding x y z being included or excluded from an affidavit, as we assist witnesses. This is one of... we also have witnesses who have come forward to participate in the inquiry and witnesses who are integral to the PP Office, whom we have asked to assist the Committee. There are at least three aspects in which these witnesses’ evidence bears relevance. In the context of the CIEX matter, Mr Moodley was identified as one of the people who had handed over the piece of paper, containing the amendment to the Constitution, to the Public Protector in a meeting and he is personally known to this witness as somebody who works in the computer related field and not an economics related field, which is in his affidavit. So in our view, when that is relayed to us, that bears relevance on the motion before this Committee. He is also one of the people whose computers was removed. And whether his documentation was returned to him intact or not, bears relevance on corroborating what Mr Mpofu calls “disgruntled witnesses” or not, this is not a witness that’s disgruntled. He had certain labour issues which he took issue with his employer; he remains within the Public Protector's employ, in fact, he's been promoted up the ranks to a better position than what he was in when these events happened to him. And there's no means that the affidavit in which his personal encounters have been represented, is anything other than what it was. So when we put him forward as a witness, it was because in the contents of this affidavit, there were issues that we thought bore relevance.

Chairperson: Thank you Adv Bawa. Having listened to both of you, I now just want to...

Adv Mpofu: Chair... sorry Chair, I have a right to reply.

Chairperson: Yeah, but that right may only be given by the Chair

Adv Mpofu: Yes, I am asking for it. I’m not saying I’m taking it. I’m asking for it.

Chairperson: Okay, let me hear you Adv Mpofu.

Adv Mpofu: Thank you Chair, I’ll be very brief. Chair, I accept what my learned friend says. She says really on relevance, computers were removed and corroborating something. Let's assume again, that is so. The point I'm making is that, then so what? What is the relevance of this particular evidence to the motion that is in front of you? And Chair, just for your assistance, what I'm doing is... if you go to directive eight, that is what is happening now. I'll read it out, "8.1 Only questions, evidence and submissions relevant to the issue of incompetence, and or misconduct, as alleged in the motion shall be asked, led or made during oral hearings of the Committee”. Okay, so it's very simple. Only those questions can be led in evidence or asked. I think everyone agrees with that as the premise. Then 8.2 says, “In the event that there is any objection as to relevance of evidence”, which is what I'm doing now, “the Chairperson may make an immediate determination as to the admissibility thereof. The Chairperson may make a provisional determination that the question and or evidence and or submission is relevant and, once the Committee has heard the evidence in full and closing arguments, if any, the Committee in its deliberation may make a final determination regarding such evidence and or submission and indicate in its report whether such was taken into account in the making of its recommendation to the Assembly”. That’s all, that's your directive with which we disagree, but that's what it says. So we're just invoking that paragraph, and two things can then happen, you can make a determination of which I suspect you're about to do and then we will deal with the matter according to your determination, but there must be a determination. That's what the directive says. Sorry, just one second Chair... yes, it says you may also make a provisional determination... and immediate determination or rather a provisional determination. So those are the options, but on the merits of the objection, we simply say that even on what the Evidence Leaders have said, there has been no mention of which of the charges this relates to and in what way it will assist in one way or the other in the determination of that charge. That is what we are expecting in terms of relevance, because they are the ones... of course, they might have spoken to a hundred people but the Evidence Leaders are the ones who determine which 20 or 25 of those and they can only do so on the basis of the relevance. The other 70 people are talking about irrelevant things, then they cut them out. So to put it simplistically, we want to know on what basis this person was determined to be going to help this Committee. Thank you Chairperson.

Chairperson: Thank you very much Adv Mpofu for raising those issues. As I summarise and make a ruling...two issues to raise. Let me start with the quicker one, so that I get it out of the way, and you would have referred to it, it was not started by you. It was a throwaway comment, I think by one of the Members. I don't know where it comes from, this R1 million issue. You referred to it in saying if that is true, you have a concern. So I want to dispel the basis for that throwaway comment which was made that R1 million was spent here every day. Further, we would have said at the very beginning of this process, especially when we determined our Terms of Reference, that this is a priceless process. This is about us enhancing democracy. This is a constitutional process by the National Assembly, that we've got to do this pioneering work. The focus is to do it properly, both in terms of process and the outcome of it. Nobody is ever just going to distract us from doing this work. I'm saying firstly about the throwaway comment, that it has no basis. The fact that it gets repeated doesn't mean that we're dealing with that fact here.

Chairperson: Secondly, as I make the ruling and determination, I appreciate your consistency, because at the beginning of this inquiry, as we dealt with the directives, you raised some of the issues in relation to whether we must entertain any charge that would have been defined in the Independent Panel report as not relevant. You do raise that issue up front and I cannot fault you on that. That's the consistency I'm referring to. We, however, as a Committee hold a different view and I hope you accept that in terms of that issue. I think you have helped me already, but I want to, as I make the ruling to refer all of you to both directive 3.2 and 8.2 that you have pointed out and it says, “Only evidence relevant to determining the veracity of the grounds of incompetence and misconduct set out in the motion should be put before the Committee and any evidence not so relevant, that may be placed before the Committee will be disregarded.” The essence of what it says is we're not going to bar or stop any evidence being placed here. But as we go through deliberations and conclusions; we can disregard it. This is the key issue, disregard anything that would be seen as irrelevant. When you read 8.2, it reinforces that, in saying that from the leading of evidence, your cross examination, the interaction by Members, we will be able to determine as we get into deliberations whether what was placed here might not be relevant to what we want to conclude on. In that regard, I do want to immediately say, we will proceed with this witness in line with what I've just placed on record. As we start with this witness, it is going to be determined that issue of relevance in our deliberations. But I thank you that you’ve placed this on record and nobody must fault you for doing that. Thank you very much Adv Mpofu, I now proceed to Fatima Ebrahim.

Adv Mpofu: Chair?

Chairperson: Yes, Adv Mpofu?

Adv Mpofu: Please indulge me just for two minutes. I’m not questioning your ruling; it is noted and I accept that is your ruling. I just want to say this, so that we don’t have to do this with every irrelevant witness that comes, otherwise we’ll be wasting time once again. So if you give me two minutes, it will save us many minutes in the future. This is all I want to place on record, Chair, and I don’t need any ruling on it. Maybe we’ll even give you a written submission on it or a letter for the consideration of the Committee at your next meeting. We don’t agree with your reading of 3.2 and 8; let me explain very briefly. Yes, you’re quite right, it says that only evidence that is relevant to the motion should be put before the Committee, and that’s what you say, that’s what we’re trying to prevent... and of course, as you’ve correctly point out, some evidence might seep through that is irrelevant and might have to be sifted out, but that can’t be the primary position. The default position is that you must prevent irrelevant evidence. If it managed to seep through, well then it would be disregarded. It can’t be that I can call somebody here who's going to tell us about a football match between Orlando Pirates and Kaizer Chiefs for two days. And then you say, "Well, I'm going to listen to it, because we can disregard it at the end”. That would be the most wasteful exercise or inefficient use of money. Whether it is a million or half a million or a quarter of million is irrelevant, it’s still the money of the taxpayers, and it should not be wasted in vain. Therefore, the issue is, we have to try and prevent irrelevant evidence. If we can't, because life doesn't work in straight lines, then it will be disregarded. But we can't start on the basis that we will allow anything, because we know that 3.2 says that we will disregard it at the end, I just want to place that on record, fundamentally.

Chairperson: Thank you Adv Mpofu, I am making a provisional ruling that this is relevant and we will proceed. Before that, I see your hand Hon Mulder.

Dr Mulder: Thank you, Chairperson. Good morning, colleagues. I just think we should also have clarity that it's up to the Committee to decide whether we regard or disregard the evidence. The Committee will regard or decide in the end whether evidence would be relevant or not. The second point I would like to make is that we are all concerned about the time and the cost. Seeing that Adv Mpofu believes that the witness and the evidence is irrelevant, it will save them time on the cross examination which I think is positive. Thank you, sir.

Chairperson: Thank you. I see three more hands, but I’ve already made a ruling, I hope those hands are making comments in that regard. I recognise Hon Herron.

Mr B Herron (GOOD): Thank you Chair, this is not to contest the ruling but really to support the idea that the Evidence Leaders and Adv Mpofu perhaps agree on some of the evidence – I haven't seen much sign of them meeting and agreeing what is not in dispute. You will recall two or three days ago, I asked the witness 'what are you doing here?'. I mean, we spent 10 hours with one witness, in my view, whose relevance is questionable. And are we going to do the same thing today? I'm not challenging the ruling but I think we do have to look for relevance. It would help if it hasn't already happened, that the two legal teams could meet and agree on whatever evidence doesn't need to be led.

Chairperson: Thank you Hon Herron. Hon Maotwe?

Ms O Maotwe (EFF): Thank you very much Chair, mine will be very quick. Chair, you mentioned the issue of R1 million. Now, is it possible for you to give us an indication of how much we are spending as the Committee on a daily basis, but also the projection of how much it will cost us. We put a programme before us and that programme should then be costed, so that the public can also know that the Section 194 Committee is planning to spend this much money on this process. If you can do that for us, maybe not now, but maybe in the next meeting, you can give us that highlight of how much we’re spending. Thank you.

Chairperson: Thank you Hon Maotwe, in our own in-house committee meeting we will do that. Thank you. Now having ruled that there is a provisional relevance to this point, I want to call Ms Fatima Ebrahim to proceed.

Witness: Mr Baldwin Neshunzhi

Ms Fatima Ebrahim, Parliamentary Legal Advisor, read the oath to the witness and swore him in.

Adv Bawa: I note that the time is 10:33am. Good morning Mr Neshunzhi.

Mr Neshunzhi: Good morning, Adv Bawa.

Adv Bawa: Do you have a copy of the affidavit that you deposed before you?

Mr Neshunzhi: Correct, I have.

Adv Bawa: I’m going to ask that the affidavit be flighted on the screen. You’re currently an employee at the Public Protector’s Office, correct?

Mr Neshunzhi: Correct.

Adv Bawa: You were initially employed in the capacity as the senior manager responsible for security on 10 April 2017?

Mr Neshunzhi: Correct.

Adv Bawa: Your qualifications are set out in paragraph three of your affidavit. You have a diploma in Personnel Management, a B Juris degree, a BTech in Human Resource Management and a master's degree in Business Leadership. You had been employed by the South African Post Office as a general manager for several years prior, yet tried to come into the Office of the Public Protector, correct?

Mr Neshunzhi: Correct.

Adv Bawa: And during the period 2012 to 2017, you were in essence, self-employed in the commodities trading business, correct?

Mr Neshunzhi: That is correct, thank you.

Adv Bawa: Now you directly reported in your position as security manager in part to the Chief Executive Officer and in part to the Public Protector.

Mr Neshunzhi: That is correct; dotted line to Public Protector. That is correct.

Adv Bawa: And in paragraph six, you had obtained the job by applying to an advertisement for the post. After several delays, you've got the requisite top secret security clearance and you are provided with a certificate. Correct?

Mr Neshunzhi: That is correct.

Adv Bawa: Your functions of the job are set out in paragraph six of your affidavit, which are the functions expected of you and I don't think that’s at issue and it's listed in the affidavit. Do you agree?

Mr Neshunzhi: I agree.

Adv Bawa: Now, for the sake of completeness, you had advised us of two issues that had arisen in the course of your employment, commencing from paragraph nine of your affidavit. And the first in 2018, related to leave irregularities found on the IT system and you were alerted thereof by the Public Protector and the then Acting Chief Operating Officer, Ms Motsitsi, do you recall that?

Mr Neshunzhi: Yes, I do.

Adv Bawa: And pursuant to that, you commenced an investigation and for purposes of investigation, you spoke to a number of people in the office. Correct?

Mr Neshunzhi: That is correct.

Adv Bawa: Then what happened subsequent to that, you communicated as well... Well, let me just put one further proposition to you. You communicated with the head of IT, but you didn't find anything amiss with the system. Then what happened subsequent to that?

Mr Neshunzhi: Subsequent to me submitting a brief report on the preliminary investigation that I conducted, I was called into the Office of the Public Protector by the Acting CEO , who was with the Public Protector and they expressed dissatisfaction at the manner in which I handled the security breach on the leave management system. Ironically, because during the preliminary investigation that I conducted as an investigator, you would need to afford the opportunity to people linked to that breach to get more information from the people who operated the system. I included those two that were suspected may have tampered with the leave management system. I think when I explained that this is the outcome of my discussions with those two particular individuals, that's when I saw the expression changing in the office. They were not happy how with I conducted the investigation. In particular, the Acting CEO mentioned that I should not have contacted those relevant people and she felt, and as she communicated with a PP present, she felt that I lacked depth in investigating the information security breach. I was then told to leave, they will discuss further and contact me. That's what happened.

Adv Bawa: There was then an arrangement that you would attend security training, correct?

Mr Neshunzhi: Yes, on the days following that, yes, I was called again on 14 February. I was told that training has been arranged or is being arranged with the State Security so that I can be trained on information security, security breaches, and in general on security management within the institution. It was agreed that I should come back in the afternoon because the Acting CEO drafted that letter and I will be given the letter to take to the State Security. In the afternoon, of course, they called me again, I was told that this is the letter – it was a sealed letter – that I should take to State Security. (Consequently, I was shown the letter at the State Security; it was addressed to the Director-General requesting him to accommodate me in their training programme; they mentioned in the letter quite a number of generic security management issues). From there, I asked what type of training while I was being handed the letter. I was told “look, we believe that you cannot handle information because of how you investigated the breach, and we will prefer you to be trained” and that's when the issue of suspension came in. It was not like suspension in words, but I was told by the PP to hand over the laptop, the work card and the keys of the office and go and stay home until the training is arranged and I start attending training. That how incident number one happened. Obviously I asked is this a suspension. Neither of them could confirm; they just said go home. Obviously from my background, I wouldn't argue with the executive authority. I then left the office, handed over what was supposed to be handed to the accounting officer and then I left for home. The following day I went to State Security. I was referred to a lady who then opened the letter or the letter has been opened already. I do not know if they sent another version electronically to the DDG. She took me through what has been written, that's when I became aware that these are the things that they want me to be trained on. Unfortunately, at that time, there was no intake, there was no training programme running from February. They were busy soliciting departments to second security personnel within security management structure to attend the security advisors course. The lady said they shall keep in touch and as soon as the number is sufficient to run a training programme, they will contact me. That was on 15 February and that was it. I stayed at home, kept on interacting with the senior people at State Security until around May when they started to see that the numbers are becoming okay and then I forwarded my details. There was confirmation that the training will begin in July. I subsequently informed the employer that this is the situation, I think that's when I was told to go back to work. Thank you.

Adv Bawa: I'm going to put the letter on the screen for the sake of completeness for you to confirm that this was the letter to which you refer. Go down, the letter dated 13 February 2018 from Adv Busisiwe Mkhwebane says, “We hereby request that SSA recalls Mr B Neshunzhi for training and skills purposes. Without limiting the scope of training required, more emphasis should be put in the following areas”. Then there's a number of areas listed and “the list is not exhaustive and the PPSA will appreciate any advice that can be given in respect of the necessary training required in its environment. We will appreciate that training resume as a matter of urgency. Kindly provide us with the name of the person that can liaise and receive Mr B Neshunzhi for training, skilling and empowerment in security matters on 15 February 2018. The letter is written by then Acting CEO , Ms Nthoriseng Motsitsi, dated 14 February 2018. Is that correct Mr Neshunzhi?

Mr Neshunzhi: Yes, that is correct. That was shown by the head of training at State Security.

Adv Bawa: You go on the training course in July, you then complete the training course and when do you return to the office?

Mr Neshunzhi: When I returned to the office, I resumed my responsibilities and there was no discussion, except that the laptop has been handed back, the office keys and the card. And I resumed my duties as normal.

Adv Bawa: You indicated that there was a subsequent incident that related to documents that had been delivered from the President's Office. In short, you describe what occurs in paragraph 17, that the documents had arrived, you were not alerted to the documentation and there was a concern that there was a leak of the documentation that had been provided. You had then followed up the trail of the evidence in respect of the documentation, but it was subsequently concluded that there was no leak and, in fact, that it was the President’s Office that had issued a media statement that the documents have been provided, correct?...Mr Neshunzhi?

Chairperson: Mr Neshunzhi are you still there? You are still on the platform but I can see that you are frozen. I hope it’s not the question that is freezing you...he’s off the platform now, let’s just pause a bit and wait for him to rejoin.

Mr X Nqola (ANC): Yes Chair and I would suggest that he finds a better place, this is the second time he is freezing.

Chairperson: We will do that... I am told he is joining; we will wait for him... welcome Mr Neshunzhi, can you hear us?

Mr Neshunzhi: Thank you so much, yes, I can hear you now.

Chairperson: I’m going to ask Adv Bawa to repeat her question.

Adv Bawa: Sorry could you put the affidavit back on the screen, paragraph 16. Mr Neshunzhi, I took you to a second incident you identified that relates to documents delivered from the President’s Office, which had not gone through you. In essence, what had happened is that the documents were delivered, there was a suspicion that the documents had leaked from the Public Protector’s Office. You had conducted an investigation and concluded that the leak had not happened at the PP Office, but it had subsequently emerged that effectively, the President had issued a media statement about the documents before providing to the Public Protector’s Office. Is that correct?

Mr Neshunzhi: That is correct.

Adv Bawa: You then, paragraph 18, say that after that, it appeared your relationship with the Public Protector had been deteriorating. Can you perhaps elaborate on that?

Mr Neshunzhi: Correct, part of the activities or responsibilities I would perform is interact with the PP, I realised that they were no longer required or you will see via gesture that things are not the same as they used to be. I started realising that perhaps it is these two episodes that occurred, that had an impact, because part of the brief from the PP when I got there was she was concerned about the information leakages. When I joined, there were serious leakages that happened, I think it was around CIEX or any of those matters that were being investigated at that time. She emphasised document security and electronics information security, which I should focus on. But then I started realising that her posture for security was diminishing. She would call me from time to time to want to find out what is the security status and for me to provide her with any reputational risk that may occur, which she may not know of. She was focusing on her core responsibility but not security. So I realised that that relationship was not as it used to be. Thank you.

Adv Bawa: So you say that there was an expectation that you had to be the PP’s eyes and ears in the Office, what did that mean?

Mr Neshunzhi: Basically, what it means is that in an institution like Public Protector South Africa, their main production or their main products are reports and documents, which contain personal information, sensitive information or they receive classified information from various institutions. She would need to have an understanding whether the environment is secure in terms of that, and as well as personnel security. I think there were one or two incidents that occurred somewhere, where complainants became violent. And obviously, I need to be alert at all material times. And like I said, part of my main responsibility will be to do security and risk assessment of the entire institution. Obviously, when you do so, you will need to interact with personnel in the institution, because those are the people that could create those breaches, and they can advise you where the problems are while you conduct security assessment. She would want me to ensure that that happens, and I constantly provided feedback regarding the security environment of the institution, and it is not limited to security only. You will need to ensure that the people understand to conform, because if they are dissatisfied, conformance to the rules and regulation becomes difficult. That's why it is written as being the “eyes and ears” in the Office. It was meant to illustrate that you need to ensure that there is harmony in terms of compliance, of security of information that the institution holds. Obviously you do that by communicating with people. Thank you.

Adv Bawa: You then indicated in paragraph 20 that you received a telephone call from Mr Fraser who was then the Director-General at the SSA. Can you elaborate what then transpired?

Mr Neshunzhi: Yes, he called me one evening and said I should avail myself at the State Security establishment and then I drove, it was around 8’o clock in the evening, I went there. I waited for him, because he had several meetings and then when he approached me. He said, “Mr Baldwin, I’ve got a concern raised by the PP”. I was shocked to hear that there was a concern, which she could not tell me, perhaps because of that trust relationship, I do not know. Then he told me that the PP is not happy with the necessary support that I provide her in managing the institution. We had a discussion. I said that I do not know what the concern was about, because I thought she was happy with my performance; but I was told that I was not doing enough to ensure there was necessary support provided to her. I do not know, he did not specifically... I tried to persuade him to give me which specific area I am not supporting the PP in. But he just said, "Go back and pull your socks and work hard, demonstrate to her that you are there to support her” and that was the discussion that took place that night. I couldn’t go and say that I heard that you interacted with the DG, but you know... I did what Mr Fraser said, that you need to go beyond your call of duty and demonstrate to your executive authority that you are on top of everything. Thank you.

Adv Bawa: You indicated that you had known Mr Fraser from a previous context in which you had dealt in commodities during that period. Then you recalled meeting him at the Office of the Public Protector when he attended, accompanied by Mr James Ramabulana and Mr Mahendra Moodley. Can you tell us the details of that meeting?

Mr Neshunzhi: Like I indicated, I was not part to that meeting. I was doing my daily routine work at the reception when I saw them coming out of the building. Obviously, because I was working with them on the case management system (CMS) and other IT security systems that we needed to employ at the PPSA, I greeted them and walked them out to their vehicles; but I was not part to the meeting that they had with the Public Protector.

Adv Bawa: Is Mr Ramabulana known to you?

Mr Neshunzhi: Yes, I know James Ramabulana.

Adv Bawa: How do you know him?

Mr Neshunzhi: Well, I’ve known him while we were still at tertiary, at the university. And I knew him again, when I became... I met him again when I became security manager. He works at the State Security and he does informational analysis. That’s how I know him. And I know him from youth structures or the university youth structures then. Thank you.

Adv Bawa: And Mr Moodley, is he known to you?

Mr Neshunzhi: Yes, indeed I know Mr Moodley. I met Mr Moodley after we requested State Security to assist us in developing a case management system and other related information security systems. So he was the team leader of the IT experts at State Security, who would assist us, after giving them the business requirements and we would interact with them. He was the overall leader in ensuring that we have a case management system in those relevant security systems. Thank you.

Adv Bawa: In fact, Mr Neshunzhi, I'm going to take you out of line and take you to paragraph 33 of your affidavit, my apologies for doing that... paragraph 33 where you indicate that SSA’s assistance had been sought for the development of a case management system at the Public Protector's Office. This was because it had used a manual case management system and the organisation was requiring an electronic case management system, correct?

Mr Neshunzhi: Yes, correct.

Adv Bawa: The SSA is then approached to assist in devising a system for the Public Protector's Office. Correct?

Mr Neshunzhi: Correct.

Adv Bawa: In fact you say in paragraph 34, that you and Mr Neels van der Merwe and others from the PP Office, met with persons from the SSA office, including Mr Moodley, for purposes of this process. Is that correct?

Mr Neshunzhi: That is correct. It was quite a sizeable delegation, even the Acting CEO at the time, was part and parcel of that delegation and Mr FutanaTebele... I led a delegation of about five senior personnel from PPSA to State Security.

Adv Bawa: One of the people involved in that presentation, was that Mr Moodley?

Mr Neshunzhi: Yes, Mr Moodley was the leader of the project, so he was the one who would provide various alternatives and efficient methods of building up a system that would be integrated with other systems, because we lacked... we did not have a backbone system. We were operating on various systems that you create on the on the computer, but not a real platform where all other ancillary or secondary systems will be connected to. So we felt that this case management system will be used as a backbone, where you can look up SAP and other related systems for other functions within the institution.

Adv Bawa: And you describe him in your affidavit as an expert in IT and some wizkid in that field. Is that how you considered him?

Mr Neshunzhi: Yes, with my formal training in systems and my limited understanding of systems development. I had coordinated that in my past working environment of developing, of facilitating development of systems. I found him to be an expert in IT and this would have helped us. As you would know SITA is the agent for state institutions in terms of procurement of systems and the management of those systems. So obviously State Security as the custodian of state information in the country, it would have helped us because there are a lot of issues like license agreements with Microsoft, we wanted to focus on that. They had bargaining power because they have several systems that were running. I think at that time, they were finalising the Home Affairs or SARS system. So we needed to piggyback on their ability to bring on board the OEMs of that software and hardware. And I found him to be extremely good in the field of IT. Thank you.

Adv Bawa: But you don’t know what happened to this project because you had been suspended and eventually you had left the position of security, correct?

Mr Neshunzhi: Yes. When I came back from the second episode, I was told by those that were the team members that were working with State Security that the organisation had decided not to pursue that because State Security came with a high bill for the system if they were to develop it themselves. Ironically, I did not understand because this was not done at lower level, it was done at a strategic level. The Public Protector was fully aware of this. As much as we had only R6 million to spend on CMS procurement per year, the understanding at the top-level meeting was that we shall pay as the development happens, because it will have happened over a period of three to four years to have a flagship system. That R6 million will be utilised to pay for those development costs associated with the system. Unfortunately, I couldn't take it further. Then we started exploiting other systems, used by global ombudsmen elsewhere, where they will come on a pro bono basis and help us because we did not have sufficient resources as money was a problem in terms of system development. Thank you.

Adv Bawa: But if I go back to paragraph 22 of your affidavit, I’m sorry I took you out of sequence. You returned after your first period; you came back from the training in about December 2018 and it was your job to obtain security clearances for people at the PP Office. Is that correct?

Mr Neshunzhi: Correct.

Adv Bawa: And the issue of the Acting CEO , Mr Vussy Mahlangu’s security clearance arose, correct?

Mr Neshunzhi: Correct.

Adv Bawa: Effectively, the SSA did not want to issue a top secret security clearance for him.

Mr Neshunzhi: Correct.

Adv Bawa: You say to the best of your recollection, this related to charges emanating from his previous employment.

Mr Neshunzhi: Correct.

Adv Bawa: You were advised by SSA that they were not going to issue it. What then transpired thereafter?

Mr Neshunzhi: Yes, I requested a meeting with the heads of what we call VA 10, which is vetting and advisory services division at State Security. I had met with the three key personnel responsible for vetting trying to expedite the issuance of this particular certificate because indeed it has delayed, it was impacting on the institution, because Mr Mahlangu was CEO. Obviously for him to be confirmed, his probation parole to be confirmed, he told me that the clearance certificate was necessary. However, in the meeting that I had with those guys (before I eventually went to collect the written letter because I requested them to put it in writing to the Public Protector so that she knows that there is sufficient effort being put to make sure we expedite the issuance of the certificate), they told me that there could be minor issues that could be eliminated by a presentation. I think during his testimony he indicated that he made several attempts to make representation on smaller issues that could have contributed to the delay. However, the main issue State Security indicated was when they were doing vetting, there seems to be charges that were outstanding, or that were on the roll and there were a few matters at the court. I think it was Labour Court. They will be reluctant to issue that [security clearance] until that matter is clarified. As soon as that happens, Mr Mahlangu should communicate with me so that they become aware and they will expedite the finalisation of that process. I think that has been communicated even on the letter. So that’s what happened and we couldn't get that top secret clearance pending the finalisation of his former employer issues. Thank you.

Adv Bawa: And how did Mr Mahlangu take to that?

Mr Neshunzhi: I will use my personal observation; he did not take it well. He did not take it well at all. Of course, there’s certain information that I cannot discuss here. The fact of the matter, he did not take it all well because he attempted to, in fact, call some of the people that he knew at the State Security and I was called by those additional heads. I handled the matter the way I handled it and alerted the PP. Subsequent to that happening, he started to somewhat feel that perhaps Baldwin could be connecting with those people, he is not doing enough, why is he not getting the certificate? When I went to collect the SSA letter, I gave it to the PP. I took it that the PP would communicate the reasons why it could not be issued, because she was the supervisor of Mr Mahlangu. To him I just said that there are delays but they will contact the PP for clarity. That’s all that I communicated to him. I think upon finding out that the certificate has not been issued, it became a problem and my perception is that he started seeing me as a person who is not doing enough to obtain his clearance. Thank you.

Adv Bawa: Mr Neshunzhi, if I then pick up from paragraph 24 of your affidavit, you explain that the Public Servants Association, the trade union, raised concerns about Mr Mahlangu’s continued employment without the requisite security clearance and you were then suspected of having leaked the information. Correct?

Mr Neshunzhi: Correct.

Adv Bawa: Did you so leak the information, Mr Neshunzhi?

Mr Neshunzhi: I did not, and I would not do it any day.

Adv Bawa: And this was then intertwined with the then shop stewards at the time: Isaac Matlawe and Tebogo Kekana. Correct?

Mr Neshunzhi: Correct.

Adv Bawa: And an investigation was then conducted and prior to that investigation you were suspended, correct?

Mr Neshunzhi: Correct. Although I did not receive a suspension letter, I was given a so-called gardening leave.

Adv Bawa: Yes, as I recall, attached to your affidavit is an explanation of what this garden leave means. Mindful of the issues of relevancy, I’m not going to necessarily take you there, but you were put on garden leave with effect from February 2019, for approximately five months while the investigation was being conducted. Correct?

Mr Neshunzhi: Correct, advocate.

Adv Bawa: You were, during that process, interviewed and your computer was removed from you.

Mr Neshunzhi: Correct.

Adv Bawa: It was then returned when you resumed duties in July 2019, correct?

Mr Neshunzhi: Correct.

Adv Bawa: When your computer was returned to you, was there anything amiss with your computer?

Mr Neshunzhi: Yes, each time I came back from – inverted commas – “exile”, I would find that information that I saved which is supposed to be available at the server, was not available. Hence some of the documents, I had to get them from other colleagues or from the evidence leader, because, from my computer, they were removed completely.

Adv Bawa: And did you raise this with the IT at the PP Office?

Mr Neshunzhi: I did, I did on several occasions. I managed to retrieve some of the information via the systems of the IT personnel. But when I asked questions, they indicated to me that “we’ve got nothing to say but we follow instruction”, that’s all that they told me and I couldn’t put them under unnecessary pressure.

[Break for 15 minutes]

Chairperson: Thank you, I'll proceed with Adv Bawa.

Adv Bawa: Mr Neshunzhi, you returned from your garden leave and you resumed your duties in about July 2019. Were you provided with an outcome of the investigation?

Mr Neshunzhi: No, except to say that I should resume my duties. I was not provided, despite several attempts to obtain the copy of the report from both the accounting officer and the head of corporate services, but to no avail.

Adv Bawa: And the head of corporate services at that time was Mr Tebele who also oversaw human resources, correct?

Mr Neshunzhi: Correct.

Adv Bawa: You then subsequently met with Mr Tebele. He in fact testified to it yesterday, and you were moved from senior manager security services to the complaints and stakeholder management. Is that correct?

Mr Neshunzhi: Yes, that is correct

Adv Bawa: I keep forgetting, yeah, it’s complaint and stakeholder management, am I right? I’m never sure if it’s customer...

Mr Neshunzhi: Customer Services is a sub section within the broader Complaints and Stakeholder Management.

Adv Bawa: Let me try this again, you were moved from Senior Manager: Security Management to Senior Manager: Intake Assessment and Customer Services, in the Complaints and Stakeholder Management branch. Does that sound better?

Mr Neshunzhi: That’s better, thank you.

Adv Bawa: Right and what reason were you given for this move?

Mr Neshunzhi: I think the PP made it known before the move, that she believes that there are people that have got requisite skills which are not properly placed. And she would really need those people to move to the core business where they can contribute and add value. So, it was not a surprise to me when that explanation was given because she has on several occasions indicated that she would need the organisation to move into that area where there is a proper matching of skills based on specific job requirements. Yeah, that's what happened and I did not suspect anything untoward because the explanation that I got from Mr Tebele and in passing from the CEO, was that, “we have checked your skills levels, your skill set and realised that you could contribute better if we move you from security and take you to CSM (Customer Services Management) because it's a very important part of the institution”. It does the intake and assessment of all new cases or new complaints that are taken in, therefore “seeing your CV, which indicates that you have got - you are strong in processes and systems”. And of course, mixed with the legal background, they felt that I could help to provide leadership in that unit, because they as an organisation, they were experiencing a lot of problems. Thank you.

Adv Bawa: So you went to Customer Services, you were not told that this was pursuant to any external report or any recommendation based on any external report, correct?

Mr Neshunzhi: Correct.

Adv Bawa: Your position as Senior Manager: Security Management was subsequently filled by Amos Skosana. You went to Customer Services and then, thereafter, in subsequent years in June 2020 you were transferred to Provincial Investigations and Integration in the coastal branch, correct?

Mr Neshunzhi: Correct.

Adv Bawa: Okay, thank you. I have no further questions.

Chairperson: Are you done Adv Bawa?

Adv Bawa: I am.

Chairperson: You have no further questions...let me not probe the question further, you might just want to come back. Thank you. Thank you for giving us that extra 13 minutes, I’ll see if I can donate that to Adv Mpofu. We will proceed to the cross-examination and I am going to recognise and invite Adv Mpofu.

Cross examination of Mr Neshunzhi

Adv Mpofu: Thank you very much Chairperson. I'll keep you to that, I don’t need the donation today but I’ll tell you when I need it.

Chairperson: Thank you, go ahead.

Adv Mpofu: Thank you, Chairperson, I just want to place something on record as well. As you know we indicated that we don’t think that there is any evidence relevant to this inquiry from this witness. It has just been brought to my attention that some journalist from News24 says that we’re trying to block this testimony, the stupidity of that...

Chairperson: That’s very far from it.

Adv Mpofu: Yes, we were just objecting as we are entitled to, thank you Chairperson. I suppose they say little knowledge is dangerous. But, Chair, what I will then do is I will ask my learned junior council, second after Mr Shabalala, to ask a few questions to this witness. Basically, we really have nothing much to say to this witness. But since he is here, we thought there are one or two issues that need to be clarified, which has arisen around this question of security clearances, for example and so on. We’ll just do that, it won’t be long, Chairperson. Can I therefore handover to Adv Matlhape who will deal with this witness? She is here with me.

Chairperson: That is in order. Welcome, Adv Matlhape.

Adv Hangawi Matlhape: Afternoon Hon Chairperson Dyantyi.

Chairperson: I handover to you.

Adv Matlhape: I appreciate that, Chairperson. Hon Chairperson, allow me to extend my greetings to yourself firstly, and also to the Hon Members present in Parliament today and those that are joining us on the virtual platform. Having done that Hon Chairperson please allow me to also extend greetings to the witness Mr Neshunzhi; may I please great him in our language since it is common. Thank you Chairperson, we will proceed to the business of the day. Mr Neshunzhi, as you have had an exchange between the Hon Chairperson and my learned senior, Adv Mpofu, most of the testimony that is contained in your affidavit is relatively not relevant to the proceedings at hand. However, there are just a few issues that we want to take advantage of, that you can clarify for this Committee. Do you understand that sir?

Mr Neshunzhi: Understood.

Adv Matlhape: Thank you. In particular, Mr Neshunzhi, we would like you to assist this Committee, there have been two theories that have been bandied about within this Committee and also they are out there in the media. Firstly, Mr Neshunzhi, there is a theory that prior to Adv Mkhwebane taking office at the Office of Public Protector, there had not been issues with security clearance. In fact, it is said that Adv Mkhwebane is the one that introduced the idea of security clearance, which was not there during the time of Adv Madonsela. In fact, this was confirmed by Mr Samuel who gave testimony before this Committee. Another theory sir, was that the Office of the Public Protector does not really need to vet its staff or to require them to have security clearance. This theory was introduced unfortunately, Mr Neshunzhi, it was raised by one of the Hon Members of Parliament. It was raised by Hon Mileham to Mr Mahlangu when he was giving his testimony. Now, our contention, Mr Neshunzhi, is that both of these theories are far from the truth, they are wrong. To demonstrate this sir, maybe let us start with the first one, that Adv Mkhwebane is the one that introduced this issue of security clearances that was not there. Now, I will kindly ask the operator to flight a policy document; it’s marked policy report on policy and it’s a 2013 document. The Evidence Leaders know where it would be found and while the operator is still looking for that, I want to come back to Mr Neshunzhi. Mr Neshunzhi, do you agree that these two theories, especially the first one, that it is false? That it is actually not Adv Mkhwebane that introduced the issue of security clearance. Clarify that please for the Committee.

Mr Neshunzhi: When I joined the institution in 2017, part of the documentation that I found was the security policy which was signed by Public Protector Adv Thuli Madonsela. There was a security management unit running, but before I joined, I think the person resigned and the document and selection process took long, but I can confirm that indeed there was a security policy which was signed and approved by her and in essence, in terms of national legislation which include the National Strategic Intelligence Act, which include the MISS which is the Minimum Information Security Standards and as well as physical security which is managed by SAPS. The state information demands that senior officials or officials that work in specific categories of employment need to be vetted, because they deal with sensitive information; which if that information is not protected could lead to into civil unrest, it could damage the security of the state and as well as putting people whose private information has been wrongly handled, into risk. So this is provided by protection of information by MISS, although MISS has never been adopted by Parliament but it was approved by Cabinet and it was then implemented throughout the public service. This is the requirement for all establishments of the state and it is mandatory for anybody who works for state to have that type of clearance, for the reasons I’ve stated above. Thank you.

Adv Matlhape: Thank you Mr Neshunzhi. I understand that this document being flighted is actually the wrong document. I referred to the 2013 one; the Evidence Leaders know very well what I am referring to.

Chairperson: Okay, whilst we check, we can just pause, Adv Matlhape. I just need to... Mr Neshunzhi?

Mr Neshunzhi: Yes Chairperson?

Chairperson: I’ve been asked kindly as chair that they think that you are sinking there in that chair. If you can just reposition yourself, it is asked by the public, if that’s not too much. Thank you, that should be fine; now they can see you. Back to you Adv Matlhape.

Adv Matlhape: Thank you, as they are still looking for that document, which we have sent to them. I want to continue with Mr Neshunzhi, there was also a similar, if not the same, document as we know that policies evolve, which was signed by Mr Vussy Mahlangu in 2019. Do you know about that one?

Mr Neshunzhi: Yes, I know about it.

Adv Matlhape: It is very similar, in fact, if you compare the two documents, the clause that deals with vetting and security clearance is the same, isn't it?

Mr Neshunzhi: Yes, it is a standard clause in security policy, yes.

Adv Matlhape: Thank you Mr Neshunzhi, and fast forward in 2021, there is another security policy which was signed by the current CEO, Ms Sibanyoni, which contains the same clause that you say is standard. Correct Mr Neshunzhi?

Mr Neshunzhi: That is correct.

Chairperson: Adv Matlhape, that what is flighted, is that the correct document?

Adv Matlhape: If we can go, Chairperson, to the very last page, let us just check the signature, then I’ll be able to confirm.

Chairperson: Alright, we are slowly going to the last page... is that it?

Adv Matlhape: Thank you Hon Chairperson. Are you able to see the document that has been flighted, Mr Neshunzhi?

Mr Neshunzhi: Yes, I do.

Adv Matlhape: Would you kindly read out the name of the advocate that signed that policy.

Mr Neshunzhi: It is written: Adv Thuli Madonsela, Public Protector, dated 28/03/2013, approved.

Adv Matlhape: Thank you Mr Neshunzhi. Now operator if you could please take us to paragraph 4.3.5. Mr Neshunzhi, this paragraph refers specifically to personnel security and it speaks to security vetting and the first paragraph which is paragraph states that all employees, contractors and consultants of PPSA, who require access to classified information and critical assets in order to perform his/her duties or functions, must be subject to a security vetting investigation conducted by the State Security Agency (SSA) in order to be granted a security clearance at the appropriate level. You see that Mr Neshunzhi?

Mr Neshunzhi: Correct.

Adv Matlhape: Thank you, let us go to the next one. It says the level of security clearance given to a person will be determined by the content of or access to classified information entailed by the post already occupied or to be occupied in accordance with their respective responsibilities and accountability. You see there?

Mr Neshunzhi: Correct.

Adv Matlhape: Then it says a security clearance provides access to classified information subject to the need-to-know principle. You also see that?

Mr Neshunzhi: Noted.

Adv Matlhape: Do you have a comment at all with regard to this process that we’ve just read out?

Mr Neshunzhi: There are no comments because this is the Minimum Information Security Standard. In terms of vetting of personnel, these are generic provisions throughout the state establishment. Thank you.

Adv Matlhape: Is that the policy then, Mr Neshunzhi, which was introduced by Adv Madonsela and continued during the term of Adv Mkhwebane?

Mr Neshunzhi: Yes, correct.

Adv Matlhape: I’m trying to save time so that we don’t go to the other policies. I can assure the Members that the policy of 2019 and of 2021 have similar clauses, as the witness has also confirmed. So I’m sure we can move on from this. Before we move on, Mr Neshunzhi, just to wrap up on this, would you then agree with me that this notion that Adv Mkhwebane is the one who came to the Office of the Public Protector with spying tendencies, that notion is false, am I correct?

Mr Neshunzhi: Correct.

Adv Matlhape: Thank you. Now let’s move to the second theory that I indicated to you sir, that it’s actually Hon Mileham that had put it to Adv Mahlangu. What I want to demonstrate out of this, I will tell you upfront to be fair with you, Mr Neshunzhi, is to demonstrate that the Office of the Public Protector deals with very crucial information, sensitive information, information that is classified and information that at some point involves Cabinet ministers. Do you agree, Mr Neshunzhi?

Mr Neshunzhi: Agreed.

Adv Matlhape: Indeed so now just to name a few, we know about issues of CR17, where the documents were even sealed by the court to demonstrate how classified that information, how sensitive that information was.

Mr K Mileham (DA): Chairperson, can I speak for a moment?

Chairperson: Just pause Adv Matlhape. Hon Mileham?

Mr Mileham: Chairperson, I think we need to be very very careful here in that there is a big difference between a document being sealed by the court, sensitive information and classified information and what is being dealt with in terms of security clearance as classified information. We must not mislead the Committee or the public, that documents that are sealed by the court or information about the Cabinet or the like, is classified. If it is classified, it will have a classification in terms of the MISS. I would appreciate it if the advocate would stick to the facts and stick to the legal classifications. Thank you.

Chairperson: Thank you Hon Mileham for your clarification of those definitions of categories. Adv Matlhape, back to you...

Adv Matlhape: Thank you Hon Mileham for your contribution. To assist Hon Mileham, I have indicated in the beginning, Chairperson, that I’m citing an example. Now in order to assist the Hon Member and the Committee, I will break it down. Mr Neshunzhi, please listen very carefully; let us be as elementary as possible and break down this information so that we assist even the members of the public that are listening. Now, do you agree that the Office of the Public Protector deals with classified documents?

Mr Neshunzhi: Correct.

Adv Matlhape: Do you agree that the Office deals with information that is sensitive?

Mr Neshunzhi: Some information is sensitive.

Adv Matlhape: Some information; fair enough, fair enough. Now to demonstrate the seriousness, the sensitivity, the classified information that the Office of the Public Protector deals with, it’s in the public domain that currently, there are investigations on the Phala Phala matter that are going on. And what has actually happened Mr Neshunzhi, is that the President has now given his answers as required by the Acting Public Protector. However, that information has not even yet been released to the public, it has been ring-fenced so that it does not leak and find itself in wrong hands. In fact, that is done to protect the investigations that are still ongoing. Would you agree, Mr Neshunzhi?

Mr Neshunzhi: I agree that, yes, indeed, it is done in order to protect the integrity of the investigation.

Adv Matlhape: So, in fact, would you agree that security of information within the Office of the Public Protector is critical?

Mr Neshunzhi: I concur with your analogy.

Chairperson: Before you proceed Adv Matlhape, I see a hand. Hon Gondwe?

Dr M Gondwe (DA): Hon Chair, Adv Matlhape is giving the impression that perhaps information pertaining to Phala Phala is classified information. Classified information is information that has been classified as top secret. I don’t want to go into detail of how the classification is done but that information does not qualify as classified. Classification is top secret, secret and confidential. So I think it’s very important for her to be careful in terms of how she uses the terms. Just because information is confidential does not mean that it’s classified. Just because information is secret does not mean that it is classified. It has to be classified as classified information and that information is not readily available in the public. Thank you.

Chairperson: Yes, I did not get him saying it's classified; she was making an example and then spoke about it being ring-fenced. That's what I would have heard so I am not able to sustain that point of order, based on what she was...

Dr Gondwe: No, but Chair, my point was, she should be careful of trying to imply or give the impression that because information is ring-fenced or is being kept under the wraps by a certain person it is necessarily classified information.

Chairperson: Thank you, my point is, we’re not there yet. I think let’s allow the advocate to proceed and do this cross-examination. Before you continue Adv Matlhape, Hon Mahlaule?

Mr M Mahlaule (ANC): Thank you very much Chair, it’s just to really plead with the Members to be patient so that we get the essence of what point is being driven here. Because the interjections every now and then, we lose the point the advocate is driving to; so at the end we may be able to determine whether what she is arguing can be sustained or not. Just the patience, thank you.

Chairperson: Hon Maotwe?

Ms Maotwe: Thank you very much Chair, I’m partly covered by Hon Mahlaule. You know we are being harassed here by DA Members who want to act as if they are lawyers themselves. Initially it was the husband, who doesn’t have any legal background, whose wife does not have any legal background... the poor advocate, can they allow Adv Matlhape to continue! Please Chair!

Chairperson: Hon Maotwe, I want to rule your language out of order. We have Hon Members here, no husbands. And I have already made a ruling even before Hon Mahlaule came in, that we are going to allow Adv Matlhape to do the cross-examination, so that we follow and understand and not break up her argument; so I want you to just please tone down. Adv Matlhape?

Adv Matlhape: Chairperson, I’d like to really thank you for the protection. I would like to say, Hon Chair, that I am not trying to categorise or compartmentalise information. What I’m trying to do is to emphasise that there is sensitive information that is dealt with at the Office of the Public Protector, that’s all, that is all that I’m trying to do. But let me go back to the witness so that we carry on without wasting any more time. Now, Mr Neshunzhi?

Mr Neshunzhi: Hi advocate, I’m here.

Adv Matlhape: Let’s take it from where we’ve stopped. So we have confirmed Mr Neshunzhi that security of information in the Office of the Public Protector is critical, irrespective of the classification. It is critical?

Mr Neshunzhi: Correct.

Adv Matlhape: Thank you. Now Mr Neshunzhi, for the rest of your evidence, it actually amounts to this. You’ll tell me, I’ll just paraphrase. Now you testified during examination in chief that actually your employer was not happy at some point with your performance and they did what the labour laws of this country demand; labour law 101, they did counselling and they sent you off to the SSA for training. And at some point, you were even moved to a position which you considered – during examination in chief – that your skills, you didn’t have qualms with that, because your skills were best suited for that position. Is that correct?

Mr Neshunzhi: It’s incorrect; you are casting aspersions on my capability, which was never questioned.

Adv Matlhape: The intention was not to do that Mr Neshunzhi. Sorry, sorry, I did not mean to offend you. Shall we proceed?

Mr Neshunzhi: Yes, we may proceed.

Adv Matlhape: From the letter that was flighted, the letter that emanated from HR, the one that recommended that you be seconded to the SSA for training. It actually indicated that training had to be done as a matter of urgency, is that correct? I’m avoiding having it be put up all over again, but we can do that if you don’t recall. But I recall there was a clause that says to the SSA, training had to be done as a matter of urgency. Do you agree?

Mr Neshunzhi: I agree that that’s what the offer of that letter penned, but I do not agree with the contents whatsoever.

Adv Matlhape: But you do appreciate that this paragraph says that “the list is not exhaustive and PPSA will appreciate any advice that can be given in respect of the necessary training required in its environment. We will appreciate that training resume as a matter of urgency.” This was the intention, would you agree?

Mr Neshunzhi: Well, I wouldn’t agree with that, because in the first instance there was no training that was arranged by the author. She wrote that letter as a means to demonstrate that she was not happy with the investigation that took place, the outcome of the investigation that took place, because the issues that were written there, for god’s sake, I’ve been doing security since [time] immemorial. Information that is obtained there, I have done that, I have implemented it here, I even developed the policy on classification which is very complex process. So I do not know what was the intention of the author; perhaps the intention of the author was that she lacked understanding of security fundamentals. Thank you.

Adv Matlhape: Our intention here, Mr Neshunzhi, is not to defend the intentions of the author of the letter; we simply need to demonstrate that to the reader, the emphasis was that training should be done speedily, as a matter of urgency, that’s all that we wanted to demonstrate Mr Neshunzhi.

Mr Neshunzhi: I agree, you are reading it as it is. I agree.

Adv Matlhape: Thank you and we do accept that training didn’t resume as you had anticipated, as the author of this letter had anticipated. It took some time, we do agree, we don’t have qualms with that, we do agree Mr Neshunzhi. And to the extent that training did not happen speedily, really, we cannot say that it should be put at the door of the public. They wrote to the SSA to say attend to this as a matter of urgency, would you agree with that?

Mr Neshunzhi: I have noted the paragraph that you read.

Adv Matlhape: Mr Neshunzhi, you testified during examination in chief, that when you actually visited the office of the State Security Agency and you handed over the letter to the person that you had been directed to, you were actually informed that, unfortunately, at that point in time, that other departments were still to send their people, that is why training was not immediately available. Is that correct?

Mr Neshunzhi: Correct.

Adv Matlhape: Mr Neshunzhi, it’s not unusual for departments to send their people – or rather, which other people were there Mr Neshunzhi when you eventually attended the training at the State Security Agency? From what other departments?

Mr Neshunzhi: Several departments, because it is a requirement that those people that hold the security management position within an institution should undergo the advisor course of the state security, in order to equip them to understand the legislation and how to provide guidance to the respective institutions. It is a requirement.

Adv Matlhape: So it’s not unusual?

Mr Neshunzhi: Yes, it’s not unusual. It is a requirement that any security manager within the state institutions should attend that course. Thank you.

Adv Matlhape: My last question to you Mr Neshunzhi, you testified that when you were then moved to another department, where you had a conversation with Mr Tebele, it was indicated to you that your skills are better suited in another position, you didn't have qualms with it. You also weigh off the idea that your skills will be better suited in that position. Is that correct?

Mr Neshunzhi: Correct.

Adv Matlhape: In fact, at some point, you were elevated to a higher position. And you were eligible for a OSD, is that correct?

Mr Neshunzhi: Correct.

Adv Matlhape: Currently, you are at a higher level, is that correct?

Mr Neshunzhi: That is correct. I’m acting as an executive manager, correct.

Adv Matlhape: Are you happy there, Mr Neshunzhi? In that position?

Mr Neshunzhi: Yes, I’m happy.

Adv Matlhape: Thank you very much, Mr Neshunzhi. No further questions from me. Hon Chairperson, I am done with my cross-examination as my learned senior has promised. I’m going to hand over to my learned senior, Adv Mpofu. Thank you.

Chairperson: Thank you, Adv Matlhape; welcome back, Adv Mpofu.

Adv Mpofu: Thank you, Chairperson. I will not spoil that good questioning. I just wanted to say thank you, Chairperson, thank you to Adv Matlhape, thank you to Mr Neshunzhi and the Members. That's the end of our business with this witness, thank you, Chairperson. So we will hear what is next from the Evidence Leaders. Thank you.

Chairperson: Thank you Adv Mpofu, the time now is 23 minutes past 12. I now recognise Members to interact with the witness, Mr Baldwin Neshunzhi.

Committee questions to Mr Baldwin Neshunzhi

Ms B van Minnen (DA): Mr Neshunzhi, my questions are mainly for clarity. Let me start off by asking, in the letter of 13 February it talks about “recalled for training” why are they using the word “recalled”? Is this because you were in previous training? Could you just please clarify that.

Mr Neshunzhi: I think the author thought that I was seconded from State Security to Public Protector South Africa. She did not know that I applied like any other person from all walks of life. She thought I was a State Security operative. That's, that's how she penned that letter. She soon realised that I even indicated when she was saying that “you’ll be recalled”, I said, “No. I'm not recalled to any place, I was appointed by PPSA, I do not work for State Security” because she thought I went from State Security. Thank you.

Ms van Minnen: If I can ask why would she thought that you worked for State Security and would that have been a consideration that she would have had in your employment?

Mr Neshunzhi: Perhaps because she realised that I'm the person who knocks on the doors of people that do not have clearance certificates and I will keep on pushing them to obtain documents that are required for purposes of vetting. I would need to know any other reason, other than that, that she perhaps did not know how security management operates. Thank you.

Ms van Minnen: Thank you, I also wanted to touch on something that Adv Bawa brought up but didn’t go into garden leave. Could you just clarify what garden leave is?

Mr Neshunzhi: It is a difficult matter. Perhaps they looked into various pieces of legislation especially Basic Condition of Employment and Labour Relations Acts and realised that they could not suspend. You can only suspend when there is a preliminary investigation or if there is a prima facie case against the person to suspend; because they did not know any other terminology to use, which will be acceptable within the working environment. They then used garden code. I think some documents that I show before this, there are decided cases, I think it's related to SARS, where it was felt that a person should be given garden leave. It was used in that case, but in terms of our legislation, we don't have garden leave. So they wanted not to be on the wrong side of the law; that is my observation. Thank you.

Ms van Minnen: Thank you and then my final question, I'm coming back to the issue of SSA and classified information on the need-to-know principle. Why is there this heavy emphasis in the Public Protector's Office on the need-to-know principle? By that I mean, before working with classified information, how would one be able to put that into reports that obviously the Public Protector ultimately needs to report to Parliament? Can you explain how that works?

Mr Neshunzhi: My understanding of classification of information is that if certain information is not handled correctly or properly, it could lead to undesired consequences. By that, I mean there's certain information that is classified, say for argument's sake, as top secret. If members of the public or any other agent who is operating within the country get hold of that information, it may affect the national security of the state. There's personal information that people will be compelled to disclose by virtue of the powers that the Public Protector has. She has the power to subpoena people, certain information like bank statements and information about relationships and the like. If that information is not handled correctly, it may destroy families, it may affect children of the holder of that information. We need to comply with the POPI Act, which is now enforced and to ensure that whatever we do, we protect the integrity of the investigation. I think that is the main reason we cannot allow personal information or information that could damage the security of the country to be handled without care. That is my viewpoint on why we needed to safeguard information and treat it as confidential as possible. Thank you.

Ms van Minnen: Thank you, my final question and then I’m done. I understand what you're saying there, but we're talking about SSA, we're talking about top secret clearance here. That is a step further. How is that information processed into reports for the public? Why is there that extent of secrecy if we look at the examples that you've used, which don't require that level of clearance?

Mr Neshunzhi: Yes, I agree with you partially; hence there’s a classification of information. There will be top secret information, which obviously, you know, looks into the extreme. There will be secret information, which is lesser than the extreme and then you will have confidential information. Certain investigations will qualify to be handled by people that have the lower clearance levels. But for instance, when you come to executive member matters, that will require a person with top secret to investigate that because the information that we will get will be sensitive in nature because it affects the executive members of Cabinet or of Parliament or executives. Once the classification happens, then the allocation will follow the classification to say this one can investigate this matter as here our reputational risk is minimal, because you need to mitigate when you do the classification. As the head of that particular investigation branch, you will need to mitigate the damage that could be caused if certain information goes out to the public. Even when you pen your formal report, you will ensure that certain private information or sensitive information is removed or it's sanitised so that it is not made available; but you will derive the essence of what you want to achieve. Thank you.

Mr Mahlaule: Chair, the first question would be, if I heard him correctly, he indicated to the Committee that the only individual that he has shared information with on the rejection of Mr Mahlangu’s security clearance was the Public Protector herself. I'm just trying to find out what he is saying to the Committee. Do you think, Mr Neshunzhi, that the Public Protector leaked this information to other employees and/or the media?

Adv Mpofu: Chairperson?

Chairperson: Just pause before you respond, Adv Mpofu?

Adv Mpofu: No, that’s fine, Chairperson. I just thought that that question was uncalled for but let’s hear what the answer is because it doesn’t arise from...

Chairperson: Mr Neshunzhi, you got the question?

Mr Neshunzhi: Correct, the contents of the letter was given to the Public Protector. However, as practice, as a norm, I am required to provide all certificates that have been issued by State Security to the head of HR, who should then lock them into the safe, because that is personal information which an employee may require when he leaves the institution, and HR is the custodian, in the main, of security clearance certificates. Thank you. Sorry, I need to be specific. I do not think that the Public Protector would have done that - could have leaked the information. Thank you.

Mr Mahlaule: Thank you. The second and last question is that, if I still recall, the evidence of Mr Samuel indicated that the requirement of security clearance only started when Adv Mkhwebane assumed office. The letter that was presented here by the legal team of Adv Mkhwebane says otherwise. Mr Neshunzhi, was there a discontinuation from what had been signed by Adv Madonsela; in effect, was there discontinuation at some point which would have had Mr Samuel thinking that it was a new phenomenon that was introduced by Adv Mkhwebane? Because that would be the only explanation why the letter brought to us today would be set aside. What is your take?

Mr Neshunzhi: My comment is that there has never been any discontinuation of seeking security clearance certificates for personnel. What could have happened was that there was no proper focus on personnel security, especially the vetting part. She only strengthened that part by ensuring that we become compliant with the national legislation. Because when I joined, I collected several certificates from State Security, which applications were made before Adv Mkhwebane joined the institution. There were others that were not out as yet, which were done during the era of Madonsela. I had to persuade the people to undergo a rigorous and laborious process of reapplying for the certificate. So this has been happening in the institution, perhaps not at the rate when Adv Mkhwebane came in because she needed to ensure that people that handled information are compliant with the national legislation. Thank you.

Ms M Sukers (ACDP): Good morning Mr Neshunzhi and thank you for coming to address the Committee. I’m just going to ask you a few questions. The first is, would you agree that one of the people likely to have access to a broad class of confidential information would be the CEO?

Mr Neshunzhi: Correct.

Ms Sukers: I understand that a person can be employed on the condition of obtaining clearance but practically speaking, how long should a CEO go without that clearance impacting their ability to do their job?

Mr Neshunzhi: Well, my viewpoint is that the certificate – if I may use the economic maxim, ceteris paribus, all factors being the same; he should not go long before obtaining the clearance certificate, because obviously it will impact on his ability to perform.

Ms Sukers: You had engagements with the Public Protector that led to a breakdown of the relationship with the Public Protector. How do you feel the Public Protector handles conflict or criticism?

Mr Neshunzhi: Well, my relationship when I joined was cordial and professional and it remained like that till today. My observation, I’m talking about my personal observation, which should not be used as a general norm. My personal observation is that she's a hands-on person. She's process and results driven and like any other manager, when the results are not forthcoming, frustration will kick in. Perhaps that could have affected her in that way to say that “this what I expected, I put the bar here, but it is not happening”. So I would say generally she's a manager like any other manager and a leader who wants to lead from the front but how she manages that, really, I cannot comment. Thank you.

Ms Sukers: Okay. Can you elaborate what you mean by saying that the PP wanted you to be her “eyes and ears”?

Mr Neshunzhi: Basically, the reason for that was that she needed people to rally behind her seven-year strategic goals, and you know, she needed people to rally behind her strategy so that she can implement that within her normal time which is seven non-renewable years. She needed me to ensure that there is proper support, because she was putting programmes in place. For instance, she needed to make sure that during her tenure, there are systems that are in place and that people out there could see the difference and increase her footprint. You can't do that if you do not have a conducive environment. So part of my job was to ensure that I communicate with staff and understand what is it that could be impacting on them. Because as a security person when people see me they believe that he is coming to demand this, he is coming to demand that; but at some stage, I think she needed to be appraised on a continuous basis on what the security posture is within the institution.

Ms Sukers: In all of the labour issues that you were subject to, would you say that the HR procedures and law was adhered to? Were you subject to a procedural and substantially fair process?

Mr Neshunzhi: I would say that I was not subject to those fair processes. Hence, I felt, and in the affidavit, I indicated that I started developing a sense of unfair labour practice, because this issue of garden service and training was used to, you know, perhaps avoid the process by those accounting officers. I felt unease and of course hurt by the unfair labour process that was followed in handling that two episodes. Thank you.

Ms Sukers: I just have two more questions, I want to ask you, is it normal for a Director General like Mr Fraser to be involved in organising training as well as counselling for you?

Mr Neshunzhi: I wouldn’t know, but because as you would know, directors-general and head of institutions meet from time to time. Perhaps during these engagements, they encourage each other and other heads of institution to communicate directly so that security within those institutions improve. I think that it would be normal given the forum of directors-general and as they meet, they meet with heads of Chapter 9 institutions and others, in planning for the country. So I will take it that perhaps during those engagements that they’ve agreed that if you require training, “just drop me an email, you know, it could be that; but that is my viewpoint.

Ms Sukers: That it is normal?

Mr Neshunzhi: The normalcy is that you need to apply as an institution, to the director-general, formally and the director-general would then – because any letter or correspondence should be addressed to the director-general of the state institution, even if you deal with that director-general, but it must go straight to him. Perhaps it becomes normal if people understand each other through those facades and whatever, but eventually training would be done by the relevant training academy.

Ms Sukers: Thank you, my last question is you said that basically you were tasked to know the environmen, so that it’d be conducive for the mandate of the Public Protector and the strategy to be executed. Would you say that in terms of your own experience and certainly that that we’ve heard in the last couple of weeks, would you describe the environment as a punitive environment? That if you do not up to standard, that it immediately leads to action?

Mr Neshunzhi: I would say that perhaps the environment may not be conducive, like if you’re working for Coca-Cola company where it’s a production line, you know everything is seamless; but in this institution, it’s a highly pressured environment and there is a demand for accountability by Parliament, by your own honorable Members, to say that we need you to protect the public. You can imagine if the other section of the business is not working in unison, it then becomes difficult. I would say, because of that, it probably developed into a toxic environment where everybody is working to achieve results and there is no social cohesion in the team. That could be the reason why the atmosphere is linked with adversarial; it can be compounded by people that are not sensitive. Thank you.

Ms D Dlakude (ANC): Good Afternoon to you, the PP and her team, Mr Neshunzhi and my colleagues. Thank you Mr Neshunzhi for availing yourself. Mr Neshunzhi, what was your relationship with the PP before that incident of your leave?

Mr Neshunzhi: It was cordial and professional.

Ms Dlakude: In your affidavit, paragraph 19, you suggested to the PP that she spend one afternoon going around greeting people and making herself more accessible. When I read that, I come to the conclusion that the PP was not accessible to her staff. Am I correct to say that?

Mr Neshunzhi: I wouldn’t say that, what I would say is that most of the people – because she worked here before, she came back as the executive authority and there were a lot of new appointments that had happened and when I conducted my risk assessment, I realised that people were longing to see their leader and that they feel this distance, or she was drifting away, perhaps because of the hectic schedule and the amount of work she was putting in. So hence, the suggestion that, that will help elevate and create a conducive environment so that there is no suspicion that she’s out for something or herself thinking that people do not support her.

Ms Dlakude: Okay, thank you very much, Mr Neshunzhi. Then again, the same paragraph from a security point of view, when you say there was an expectation that you would be the eyes and ears of the PP. From the security point of view, I would say that maybe you thought the PP wanted you to spy for her? I know you responded to this question, but I'm asking from the security point of view.

Mr Neshunzhi: No, I wouldn't say that, she would not do that with me. I'm a man of principles. I think the reason why I say that is because her background, you know, despite the fact that she's an advocate. She had a MBL and I have the same qualification so we could relate at that strategic level of organisation and perhaps it is the training, that my background has helped her to accommodate me, to say that perhaps he is one of those that would help me facilitate change in how I want things to be done. Thank you.

Ms Dlakude: Thank you, Mr Neshunzhi. In paragraph 14, what informs the view that Mr Mahlangu was coerced to allow one of the subordinates to attend the SSA training and who coerced him?

Mr Neshunzhi: Well, Mr Mahlangu became a CEO when I was away, and when I had to write back to the institution to say, this type of training is meant for senior managers according to the brief from State Security. It's only meant for head of security management units within the state institution. Therefore, I had a manager who did not undergo this training and I felt that perhaps because eventually I would leave the institution when my time comes or move to another unit, it will be important that he is exposed to this type of training. When the State Security agreed to that, he was coerced by me, you know when you can “manage” your seniors, so he was coerced by me to agree after I wrote motivation, why he should allow my subordinates to accompany me to the training. Thank you.

Ms Dlakude: Thank you very much, Mr Neshunzhi. Who was the person in paragraph 16 of your affidavit, who was the person from the Office of the Public Protector who collected the documents from the Office of the President?

Mr Neshunzhi: Well, it was one of the personal assistants of the PP from the private office. She was called down by the receptionist to go down and collect, but obviously, I will shy away from saying the names of people on this platform. Thank you.

Ms Dlakude: Thank you very much. Paragraph 21. You said you know Mr Fraser, then DG of State Security from another context. Can you expand on that?

Mr Neshunzhi: Well, yes, when my contract expired, not renewed, where I was working as a GM, I obviously ventured into entrepreneurship and during the course of trying to source products and finding, you know, locomotion or rolling stock to move the commodities to the ports, I happened to be in an environment where one of the managers introduced me to him. That's when I became aware of who Mr Fraser was and I continued working with that person, but I was introduced to the directors of that institution. Thank you.

Ms Dlakude: Mr Neshunzhi, in paragraph 20, how did you feel when you hear from Mr Arthur Fraser, that your superior was not happy with your work?

Mr Neshunzhi: I felt bad because she did not complain to me and I knew she never doubted my capability. She probably was driven by the incidents that she felt should not have happened and as internal process breach investigator, I should have done more to ensure that people face consequence management in that regard that the information was not properly handled. I felt bad, I'm being honest here. I felt bad, but then I understood her to be a task master who would need a person to go beyond the call of duty. Thank you.

Dr Gondwe: Mr Neshunzhi, how are you?

Mr Neshunzhi: I’m okay and you.

Dr Gondwe: In paragraph 20 of your affidavit, you state that subsequent to your incident pertaining to the documentation that was delivered by the Presidency, you received a call from Mr Arthur Fraser, who informed you that you were failing in your duty to support the Public Protector. Did the call from DG Fraser take you by surprise? I know that you said, when Hon Dlakude asked you about how you felt about the call, you said it made you feel bad; but I want to find out whether you were taken aback by the call? Were you surprised by the call? And whether you did not view the call from Mr Fraser as an interference in relation to your duties as senior manager responsible for security in the Office of the Public Protector, more so that you were not reporting to Mr Fraser.

Mr Neshunzhi: When I received the call, I did not think that it is unusual as the head of State Security; one would think that perhaps there could be other developments that may affect the institution where I was working and hence it did not surprise me... I was not taken aback by the call. I thought perhaps he needed to alert me about any development that could affect the institution that I was working at. I found it... let me say I will come in because I did not know the purpose, but being the head of the State Security, I thought perhaps there could be some developments that I should know, so, that I beef up security at PPSA. Thank you.

Dr Gondwe: Okay. So you were not surprised, because you thought that maybe he was trying to make you aware of some security developments. I want to find out whether you regularly received calls from Mr Fraser in terms of him advising you or trying to appraise you about any security concerns within the Office of the Public Protector.

Mr Neshunzhi: Not necessarily, you know, because, my principal was the Public Protector; there could be threats that he may needed to talk to me so that I become aware of that. Actually from my side, I did not think that his call will relate to the operations, but perhaps at strategic level, to say either your principal is under threat, or you need to do certain things to protect the incumbent. Thank you.

Dr Gondwe: Please confirm how often Mr Moodley, Mr Ramabulana and other officials of the State Security Agency paid a visit to the Office of the Public Protector. In your opinion, did the Public Protector maintain close ties and relations with the SSA? When officials of the SSA paid a visit to the Office, what exactly would they be doing whilst they’re there?

Mr Neshunzhi: I am not so sure about the frequency of their visits, because I didn’t see them frequently and I was not informed if they usually meet the PP. However, some may come to alert me about certain developments which needs to be taken into consideration or the visits that I can point out will be the assistance from State Security with regard to that case management system. And perhaps auditing of our ICT environment because that was paramount, given the fact that our infrastructure was aging and we would require audits of our IT system from time to time. Te best possible people that will do that will be the experts from the intelligence. Thank you.

Dr Gondwe: You forgot to answer the question when I asked if in your opinion, did the Public Protector maintain close ties and relations with the SSA and while you’re responding to that question can you try and estimate, on average in a year, how many times in a year they would actually visit your offices.

Mr Neshunzhi: It could be twice a year. They will visit the Office for various reasons, for training awareness around various legislation, you know. I wouldn't, I did not observe the strong ties with the State Security. If any State Security personnel would want to come, she will normally direct them to me as head of security; but regarding whether she kept the ties with the State Security, I’ve got no comment on that, I did not observe that. Thank you.

Dr Gondwe: You also mentioned in the course of your oral evidence that the SSA assisted the Office of the Public Protector with developing a case management system. Were you instructed by the Public Protector to solicit the assistance of the SSA in developing this case management system? Who was expected to maintain this system? You mentioned an amount of R6 million that was paid in respect of this system; who was this money paid to? You describe the SSA as custodian of state information, but then my question becomes, is GCIS not the custodian of state information? Could you clarify that? And please confirm if Mr Moodley is an IT expert or an economist by qualification, because at some stage we were told that he’s quite knowledgeable in the field of economics.

Mr Neshunzhi: Basically, perhaps it was not articulated clearly, I did not say that R6 million was paid. The amount of the money that was available within the ICT budget was meant to develop a system, so there was no money that exchanged hands between PPSA and State Security. Indeed, I've indicated that, because that was my observation / impression that I got [of Mr Moodley]. His fundamental understanding of ICT concepts. The reason why we included case management system, it was not all about case management system; we needed what we call a cabinet, where the PPSA sends certain documents, say to defence lawyer or whatever. That pipeline makes sure that they cannot be hacking or people cannot intercept information. We had predictive analytics that we're developing so that investigators could use this type of information security that is secure to connect with various state agencies like your Home Affairs, if they're conducting investigation, it becomes easier to tap into that predictive analytics. So the CMS, because we needed a base, we needed a platform, we felt that they could help. And according to my knowledge, the information holder or the information for the state, it's managed and protected by State Security. Yes, SITA; it's an implementing agent, but in terms of what needs to get into the country or to be sifted, it is in the domain of the state intelligence. Thank you.

Dr Gondwe: Mr Moodley, is he an IT expert or an economist because we heard that he’s quite knowledgeable in the field of economics?

Mr Neshunzhi: He could be, he could be an economist specialist, but my interaction with him demonstrated that the guy is a gem when it comes to IT development systems, what needs to happen for the country and the like, in terms of securing information.

Dr Gondwe: In paragraph 23 of your affidavit, you state that you were reasonably successful in obtaining the requisite security clearances from the SSA. Can you explain to us by what you mean by that sentence? How were you able to obtain these security clearances given that you were not employed at the SSA? Please confirm the extent to which you were involved in the security vetting of employees at the Office of the Public Protector and I want you to just confirm whether employees within the Office of the Public Protector handle what is categorised as classified information in their day-to-day duties, because we heard from Mr Tebele and Mr Samuel, saying that in their opinion, they don’t handle classified information.

Mr Neshunzhi: Thank you, I hope I’ll be able to answer all the questions that you’ve raised. The second part of the question I can answer as follows, I have been in charge of security management at PPSA and I was exposed to the literature and several research and I interacted with the industry captains. Therefore, although I'm not talking with authority, but my input regarding security at PPSA, it’s sizeable. I would say that for people to say it is not a requisite, yes, I hear that. But people should just fit, a simple reading will help them to understand that it is the drive of government to ensure that all employees who work in the state and especially those in critical areas like SCM / finance are vetted so that state assets are not misdirected or misused or malfeasance will not take place. In any position of authority, the state will require that. In terms of success, why do I see I was successful in obtaining a high number of clearance certificates? You know, part of my job was to ensure that we will be developing systems that will protect this and we need a classification policy, we need a classification process of information; which I managed to develop the template which the executive of the various branches are supposed to use. Now, in order to be successful in business, your interaction with various institutions is paramount. So, as I operated within the environment, I managed to solidify the relationship with those managers that would assist me to achieve results at PPSA. My drive was to say, at least because for top tier, for any senior management service (SMS), according to Public Service and Administration, they need to have a top clearance, at most top clearance. You will then be required as an institution to have all your senior management team to have the top clearance.

Dr Gondwe: Paragragh 24 of your affidavit states that you were suspected to have leaked information about the refusal of Mr Mahlangu’s security clearance. Did the SSA decline or refuse his security clearance, because he told us that it was not refused but it was put on hold pending his appeal. You also stated in your evidence in chief that Mr Mahlangu did not take the refusal of his security clearance well at all. He even started calling people that he knew at the SSA. Do you know who he called at the SSA and if he had a working relationship with officials from the SSA?

Mr Neshunzhi: The testimony by Mahlangu is correct, it was withheld. Well, they did not give me a certificate, instead they issued me a letter; they also indicated that it is being withheld until the finalisation of the court process that was undergoing at that time. Unfortunately, the other part on who has he called and what, I would not comment on that. Like I said then, according to me, it is classified as sensitive information. Thank you.

Mr X Nqola (ANC): Thank you very much Chair, let me start on that point of leakages. It looks like, Mr Neshunzhi, that there was at a certain period, a pandemic of information being leaked from the Public Protector South Africa. You are saying in paragraph 5, actually 6.5, that part of the responsibilities that you had in the Office was to provide information security. I want to check, from your experience in that unit; what do you think was the significant cause of much information being leaked? Do you think it was part of those reasons of information being leaked, the fact that the security unit did not have staff or management that had the requisite skills?

Mr Neshunzhi: Indeed, there was a leakage problem. The leakage problem I wouldn’t describe it as being caused by lack of knowledge. However, there are barely no systems that ensure that there is a firewall between the institution and those other institutions that the PPSA works with. And even the internal systems need firewall systems that they have just to maintain the organisation; it’s either that they were obsolete or they needed to be revamped. They were no sufficient firewalls and you know, patches and as such, the leakages were done because a person can wrongly send an email to the wrong person or people can start communicating and exchange documents, others are just maleficent as human beings. Thank you.

Mr Nqola: In paragraph 11, you accused the Public Protector South Africa of having suspended you, which is the second suspension, without giving you sufficient reasoning to that effect. Do you regard that as a fair labour practice or a just administrative action?

Mr Neshunzhi: I think the due prescripts and process were not followed to the latter and as such, I believe, I categorise this as an unfair labour practice.

Mr Nqola: Okay, let’s go to, that there was – which I think Hon Dlakude has made mention of, you in paragraph 14 say there was a subordinate that had to be coerced to be registered for this training so that there is a required number, which is required from SSA. I will pose in a different way this question because Hon Dlakude asked who was coerced and by who was that person coerced. Now, my point would be, is it your evidence that there was no will by the then CEO, Mr Mahlangu, to assist you in this regard, hence the use “coerced”?

Mr Neshunzhi: Perhaps it is the question of improper application of the word, it could have been “persuasiveness”, because what then happened, during that time when it was recommended that I should go and attend the security advisor management course, we were busy with the cost containment drive, so that exercise in a way, made Mahlangu reluctant based on the numbers, because any person who attends pays some sizeable number of thousands. Perhaps, hence I used the word “coerced”. I wanted to say that I had persuaded him in the very strongest terms that he should release the money and allow this guy to go and attend.

Mr Nqola: So the new terminology now is “persuaded” not “coerced”?

Mr Neshunzhi: Yes.

Mr Nqola: Let’s go straight to the call from the one and only Mr Arthur Fraser. I think Hon Members have questioned and posed a number of questions with regard to that; but what is not clear from me is this call is related to how you are performing in the Office of the Public Protector by a person who's not part of the organisation, whose completely outside this organisation, which is the Public Protector South Africa. Was the call in the capacity of him being your friend? Or what was happening? I'm trying that you give us a picture of what has happened.

Mr Neshunzhi: I’ll put it this way, I have indicated that at the level of the executive authority, they can tap into the accounting officers of other organs of state. However, it must be known, it must be made clear that national intelligence has got interest in all organisations in South Africa, especially in the public sector. Even in the interviews of all these security managers that are hired, at the state level, there will always be a senior representative from State Security to ensure that their mandate is enforced throughout. So the mere fact that they sit in the interviews for senior security managers, I believed that could have triggered that, but the call, yes, it came from him. Perhaps because there is good interest in what could go wrong at PPSA.

Mr Nqola: Adv Mpofu reckons that, as the team of the Public Protector, they believe strongly that in this issue you are not a relevant witness. From where I am seated and the evidence that was deposed in the affidavit, you do have a labour query with how you were treated in the Public Protector South Africa.

Mr Neshunzhi: Well, I, like I said, my understanding is that, yes, there was unfair labour practice on me by the institution, which never apologised up until to date and that has caused immense problem...

Mr Nqola: I think you’ve covered it, Mr Neshunzhi, thank you. I don’t want you to elaborate much. I’m asking this question because part of the charges which we are testing, its veracity here, it is the abuse, harassment and intimidation of staff. That was the reason I was asking that. My last question would be, do you think that your two peppered suspensions were meant to intimidate or harass you? Is that your belief or not?

Mr Neshunzhi: Well, my view on that is that it could be because of a cavalier nature of individuals who are given authority at that time, where they do not, they show lack of proper concern of what are the consequences of suspending a person. So I wouldn’t say it further than that, to say that I believe that sometimes it depends on who is at the helm. Who is the accounting officer, how does he relate to certain things.

Mr Nqola: Thank you, the last point will be that Hon Mahlaule asked you a question that do you believe that the Public Protector leaked the information relating to the clearance certificate of the former CEO Mr Mahlangu. I believe he was asking that question because in your affidavit you have said yourself that in matters relating to the clearance certificate of Mr Mahlangu, you have in your recollection told the Public Protector. I think in my view, that question was not unfair to you, is that correct?

Mr Neshunzhi: I think it was unfair because the Public Protector is supposed to be custodian of the protection of information as the executive authority. I could not doubt my viewpoint and assertion that she will not do that because it will put the organisation into a detrimental position. I hope I’ve answered, I might not have answered the way you want, but I hope I’ve tried.

Mr G Skosana (ANC): Mr Neshunzhi, do you know whether it is standard practice for security personnel to receive training from the SSA?

Mr Neshunzhi: Yes, it is a standard practice. Depending on the size of the organisation, they even do the first leg of personnel vetting in-house, so there are training models for that, provided that particular organisation has got required numbers, there’s a certain threshold, I think it should have over 500 or 700. The one for security advisors course, I find it beneficial because it expands the scope and how you perceive things and eliminate blind spots in executing your mandate. Thank you.

Mr Skosana: Is it also standard practice for security personnel to arrange their own training, like in your case?

Mr Neshunzhi: Yes, you can arrange with the recognised reputable, which is accredited by the controlling regulatory bodies. You could get quotations and forward them to HR for consideration.

Mr Skosana: So how much time is the new employee given in order to get the security clearance and if he/she doesn’t get it after the lapse of that period, what happens?

Mr Neshunzhi: I think without venturing into the process at State Security, there has been a huge backlog. There are requests that come from various parastatals, a typical one is the one at the airport when the crime was getting out of hand. State Security had to put ours on the backburner so that they focus on ensuring that the airport is cleared. The employee will sign that declaration of secrecy which stays in the file. Should there be any movement or being promoted or whatever, or if the organisation feel that the declaration of secrecy should be reinforced, at any time they could demand that declaration of secrecy while waiting for the issuance of the clearance certificate.

Mr Skosana: Mr Neshunzhi, are you a member of the PSA, the union?

Mr Neshunzhi: Can I be allowed not to answer that? I think I should not venture into constitutional rights of individuals.

Mr Skosana: No, I was asking about yourself.

Mr Neshunzhi: Indeed, I’m talking about myself. I would not like to respond to that. Thank you.

Mr Skosana: Okay, my next question is, was it justifiable for the members of the PSA to raise concerns about the fact that Mr Mahlangu didn’t have a security clearance? As per paragraph 24, was it justifiable given the explanations that you have just given to us that there are backlogs; was it justifiable for them to raise those concerns?

Mr Neshunzhi: The issue of security clearance is supposed to be a confidential matter, but the union, given the fact that they have got a recognition agreement and collective agreements with the employer, they can raise any matter that affects their employees. I think on that score they can raise any matter with the employer. But, whether it was appropriate for them to raise the issue of the accounting officer, I would not comment on that because I do not know whether it is covered by the recognition agreement, as I’m not au fait with that, thank you.

Mr Mileham: Good afternoon Mr Neshunzhi. Sir, could you tell me, I’m just trying to understand the time periods that you were suspended for, or on garden leave, however you want to describe it. Is it correct that it was from 14 January 2018 to approximately July 2018? Is that correct?

Mr Neshunzhi: It was 14 February, yes, speaking under correction... to middle of June 2018.

Mr Mileham: In your affidavit at paragraph 11, it says here the PP informed me that I should stay at home. Did she do that personally?

Mr Neshunzhi: Yes, she did that personally because she was with the acting accounting officer in the office, so perhaps she needed me to understand that I should not come to work during that period of training.

Mr Mileham: And did she instruct you to handover your laptop, access card and keys?

Mr Neshunzhi: That was said by the acting accounting officer.

Mr Mileham: When did you get those items back? Did you get them back when you came back in June or did you get them back after your training?

Mr Neshunzhi: No, I got them immediately when I came there.

Mr Mileham: You got them, sorry, when?

Mr Neshunzhi: The day I came back they were given to me.

Mr Mileham: Now you went on the training, it says it only commenced in July 2018 and I think it ended in December 2018. Is that right?

Mr Neshunzhi: Correct.

Mr Mileham: Can you tell me, were any of the following topics covered during that training, did you receive any training on firearms?

Mr Neshunzhi: No.

Mr Mileham: Did you receive any training on counter intelligence?

Mr Neshunzhi: Yes.

Mr Mileham: Did you receive any training on the interception of communications?

Mr Neshunzhi: Not really, it was just a broad regulatory framework regarding the interception of information, but not the tactics and how to go about.

Mr Mileham: Okay, so you weren't shown how to pack a cell phone or to access someone's emails or anything like that?

Mr Neshunzhi: No, no, the training never included that.

Mr Mileham: Can I ask you, with regard to the training that you went through, what exactly did it have to do with your investigation of the leave system?

Mr Neshunzhi: I wouldn’t say it had anything to do with that in terms of the leakages; but it did contribute to strengthening the objectives that were set for me because you would do things in different ways perhaps with certain templates that will enhance your execution of the business unit strategy.

Mr Mileham: Okay, so then you come back from training at the end of December 2018 or in December 2018, and it looks like you then are put on garden leave on 14 February 2019, is that correct?

Mr Neshunzhi: Yes, correct.

Mr Mileham: Okay so, now, it’s very funny, Valentine’s day was a bad day for you in 2018 and 2019. Then you were on garden leave until July 2019. Did you handover your laptop, keys and access card again?

Mr Neshunzhi: Correct.

Mr Mileham: Who instructed you to go on garden leave?

Mr Neshunzhi: I was given the letter by the CEO, who was my direct supervisor, so he then instructed that I handover the tools of trade to a particular unit.

Mr Mileham: Okay and there was no formal disciplinary process? There was no option for you to provide a reason why you should not be placed on garden leave or anything like that?

Mr Neshunzhi: There was an attempt to put me on the garden leave much earlier in December, for one reason or another it could not happen, because the institution was about to close going on recess.

Mr Mileham: Sir my question was, was there any attempt to hear why you should not be placed on garden leave?

Mr Neshunzhi: Yes, I was attempting to answer that, to say that in December I received a letter signed by the erstwhile CEO requesting reasons why I should not be disciplined and I provided responses; those responses led to the internal discussions with the HR structure. Hence, they came up with the leave because the preliminary report that I gave, did not contain any prima facie information that compels them to put a person on leave.

Mr Mileham: Okay, I now want to turn to the reason why you went to the SSA initially and you were looking to procure a case management system, is that correct?

Mr Neshunzhi: Not necessarily procure, we wanted the State Security to help our IT, to work together to develop a system for our institution.

Mr Mileham: Okay, I’m reading in your paragraph 33, it says, “ I had sought SSA’s assistance for the purpose of development of a proper case management system”.

Mr Neshunzhi: Yes.

Mr Mileham: Why would you go to SSA for that?

Mr Neshunzhi: Your question is why would we?

Mr Mileham: Why would you go to the SSA for a case management system?

Mr NeshunzhI: Okay, there has been several institutions that came and provide the elementary concepts or road business, several business cases, after being given business requirements, for instance, Ascension. There's another German organisation that I forgot, which would have sponsored that development of case management system. But it came to nothing, because when it came to implementation, I think there was this problem of underfunding, where they could not procure that development. So we wanted the State Security to develop it pro bono, not necessarily them developing it, as custodian of most the most of the systems, we were in love with systems like the SSA and SARS, to say that perhaps we can piggyback on those and customise the system to fit our course. Thank you.

Mr Mileham: I’m sorry, that doesn’t explain why the SSA. I mean SARS was developed by SITA. Home Affairs is developed by SITA. For various departments SITA does the development, not the SSA, so I’m not clear why you went to the SSA.

Mr Neshunzhi: My understanding was that in the first instance, SSA are in a way custodian of information and they work directly with SITA, because SITA was aware of our problem, we felt that perhaps going that route, the SSA will point us to the right direction, which system will be suitable for PPSA as partners of SITA.

Mr Mileham: As it stands right now, are you aware of that case management system being put in place?

Mr Neshunzhi: Yes, I am aware.

Mr Mileham: Well, has it been put in place?

Mr Neshunzhi: It has been, it is live from 1 August, our own system, yes.

Mr Mileham: And who developed that?

Mr Neshunzhi: I think our IT did that with the assistance of some IT experts from South African Social Security. I think their job was to help us customise the system, but the system is similar to them.

Mr Mileham: Okay, so not the SSA then. My two questions and they are linked. The first is, what protocols are in place in the Public Protector's Office, and I’m talking about the broader institution of the Public Protector, to handle and store confidential information?

Mr Neshunzhi: I think I would day they made headways because in the procurement security programme that I developed then, we insisted that for us to be able to implement classification of information we would require lockable cabinets that are steel in nature, that can resist fire. Although it is not comprehensive because we would have liked the biometric system to be attached to the filing cabinets of this classified information. I would say, in terms of that protocol of ensuring that at head office, the project has been completed and those cabinets are available. I hope with the current arrangement, they will be able to introduce a biometric system, to limit accessibility to people that are not authorised. We do have some camera systems...

Adv Mpofu: Chairperson?

Chairperson: Adv Mpofu? Just pause Mr Neshunzhi.

Adv Mpofu: Sorry Chair, my hand has been up but I see you couldn’t see it. I just once again want to raise this, what is this? What is the relevance of this? Is it necessary to now have to reveal the systems of security at the Public Protector's Office to all who may want to hack those systems? For what? What does that got to do with the motion, honestly?

Chairperson: Thank you Adv Mpofu, you do have a valid point. I’m hoping that Mr Neshunzhi and Mr Mileham, because the intention is not to do that; I hope you get the gist of your question. It would be good to have a response that says there are these systems that are now existing... to go the way he is going, it’s a security risk.

Mr Mileham: Well Chair, I’m not happy, first of all this is a committee of Parliament and we are not bound by any confidentiality obligations here, that’s the first thing. The second is that the security and confidentiality of information has been raised on several occasions in this hearing and the need for the securitisation of the Office of the Public Protector, so I’m trying to determine what protocols have been put in place...

Adv Mpofu: No...

Mr Mileham: And Adv Mpofu, if you don’t mind!

Adv Mpofu: I mind...

Chairperson: You speak through me, Hon Mileham.

Mr Mileham: Hon Chairperson with the greatest of respect to you, Adv Mpofu has interrupted other people repeatedly, he has not... Chairperson, may I finish?

Chairperson: Yes.

Ms Maotwe: Chair, take charge of the meeting, please Chair. Take charge of the meeting we can’t be abused like this. Please now...

Chairperson: Thank you Hon Maotwe.

Mr Mileham: Chairperson, I will ask whatever questions I desire, I will not be limited in the questions that I ask. I will ask whatever I want that is relevant to my determination of the facts of this matter and the issue of securitisation has been raised, so now I’m trying to determine what protocols were put in place. I have two last questions...

Chairperson: No, it’s not two, it’s your last. I am going to impose that Mr Neshunzhi has responded to say that there’s a system in place existing and I’m not comfortable that he goes into the kind of details he does. I want you to go to your last question.

Mr Mileham: I’ve got to stress that I am extremely concerned by what appears to be only steel filing cabinets to deal with confidential information, but anyway. My last question, Mr Neshunzhi, is this, in your time at the Office of the Public Protector, have you handled any classified confidential information and has the Office of the Public Protector classified any information themselves?

Mr Neshunzhi: Yes, because we’ve got a policy guideline on the classification of information, so each business unit does that and at my level, yes, I’ve handled classified information and I continue to do so. Thank you.

Ms Maotwe: Mr Neshunzhi, your functions are clearly stipulated in point six of your affidavit, I mean they are detailed enough. Now according to you, do you think you performed those functions and achieved the required performance levels?

Mr Neshunzhi: Yes, I believe so.

Ms Maotwe: Okay and following from point 12 of your affidavit, to point 13. You say that you received a letter that said you must go for training, but you must stay at home until the training is completed. You also indicate that you regard that tantamount to suspension; is this where your beef with the PP emanates from? I’m asking this because on point 15 of your affidavit you say that there was a sense of animosity on the part of the PP.

Mr Neshunzhi: Yes, I think there was a development of that adversarial environment and I’ve indicated earlier that perhaps because of the manner in which they perceived that I handled the investigation on the leave management system.

Ms Maotwe: Is that the reason why you are here today, in the process of Parliament, hoping that at the end there’ll be an impeachment to the PP?

Mr Neshunzhi: No, no, no, it’s a big no. I never – by the way I did not lodge a complaint. Obviously, some of the people that wrote affidavits, mentioned my name. Consequently I had to make an affidavit in preparation of what was raised in other people's affidavit. I wouldn’t follow that route, thank you.

Ms Maotwe: Okay, is it unreasonable according to you, Mr Neshunzhi, for a person responsible for security to be the one to account, given the suspicion of leakages of confidential documents, especially on such high-profile matters such as the cabinet memorandums, which are classified? I mean the Office deals with Inspector General reports that are used in the so-called rogue unit that are classified and some documents used by the police to provide security, which is classified. Don’t you think you failed in your work because there was a leakage of information?

Mr Neshunzhi: I do not think so, like I said, during my tenure as head of security, I was preoccupied by developing processes and systems that were meant to prevent the leakages and that’s what I did. So I can’t say I failed in my endeavor to protect the information at PPSA. The time was cut short and I couldn’t complete my exercise. But policies I have, while revising the old ones, I have developed those. Thank you.

Ms Maotwe: Yes, but my question is, when there is a leakage, shouldn’t you be the first suspect or shouldn’t we look at you as to what happened with the leakage when you were in charge of the systems?

Mr Neshunzhi: No, the systems are taken care of by the ICT manager, who is the Chief Information Officer. I only complement their effort in ensuring that there is information security features that are built within their system. I continually did that. It would be disingenuous to suggest that when leakage happens, I should be responsible, because information happens between the investigators and those institutions which I would not know, unless you’ve got systems that are watertight.

Ms Maotwe: I’m not sure if you are saying that if there’s a leakage you must go to IT to look for where the problem came from. Is that what you are saying?

Mr Neshunzhi: Yes, yes of course, because they’re the custodian of the entire IT structure. The security systems, we were on the verge of developing those security systems that will ensure that it’s built on the ICT platforms, but we couldn’t finalise that because there was no backbone system and I did not spend that much time at security, but those systems were developed. The concepts were developed and what was left was the procurement programme, which unfortunately, because of budget cuts could not happen.

Ms Maotwe: Just for clarity Mr Neshunzhi, did I hear you correctly that Mr Fraser left SSA in 2018? Because the reports that I have, I think they refer to 2019. Can you please clarify.

Mr Neshunzhi: No I’ve never uttered those words. I did not say that he left State Security at what period. I never uttered those words.

Ms Maotwe: Okay, would you agree that part of your work is to be the ears and eyes in the organisation, to ensure security measures are adhered to? And if you agree, why would an instance when the PP ask you to be ears and eyes be different? Because you are now making it sound like she was saying you must spy on people. Is that what she was asking you to do?

Mr Neshunzhi: No, I think I’ve explained that before. I’ve explained what I’ve meant by being the ears and eyes. It never suggested that there is some spying web that should be needed. It’s how the reader interprets; perhaps we could have put it differently so that it is unambiguous.

Mr B Maneli (ANC): I’ll start on a point of confirming with Mr Neshunzhi whether before joining the PPSA, whether he was exposed or worked directly in an environment where there was security of life, property and information.

Mr Neshunzhi: Yes, correct. I had occupied the position of security investigation before and I’ve been trained by international organisations, especially within the postal sector, in ensuring that mail distribution and the network was safe from thieving and other activities. I also worked and trained as a police officer and I’ve worked in that environment of protection of life and of assets. Yeah, I believe I had a considerable significant experience in that regard.

Mr Maneli: Just taking that point further, because you’ve raised this point when you were dealing with the letter that takes you to training – that the "recalled" part of it would not recognise that you applied just like any other South African from all walks of life and you responded to the advert, isn’t it? That's what you were trying to clarify by making that point?

Mr Neshunzhi: Yes, I would not have applied for the position if I thought I did not have the bare minimum requirements for the position. Hence, I indicated that it was preposterous to suggest that I needed those basic training which I already done at a very high level, at international level with other countries.

Mr Maneli: Yes you’ve covered the next question I needed to ask, because reading the letter, it does give that impression from someone who read both the advert and what is there in the letter that takes you to training. So you’ve answered that part about basic. In your view, would that mean a no confidence on the investigation you did or you would regard this referral more as a correction, having accepted that you may have done that investigation better than you did?

Mr Neshunzhi: I would argue that I followed due process of investigating internal breach of security and I even recommended a system forensic auditing in three instances, which would have cost a sizeable amount of money, because system forensic auditing will have at least track and trace of any movement or any outbound information and inside information or if other people within the system could have used other people's emails or laptop just to disguise, or create alibi. I should think the issue of training, perhaps it was to complement what I already have, which I welcome.

Mr Maneli: As I proceed then on this question, again, it’s really a point of trying to confirm that coming back, getting moved; is the reason that says your skills are better off in CSM as opposed to where you were, would you say that’s justifiable and hence, you didn’t contest it?

Mr Neshunzhi: I would say it is justifiable in a sense that, indeed, I knew that there was problems at CSM, especially because it was such important part of business, where if the intake is incorrect and the processes of assessment is not done properly, we will sit with a lot of litigation because people failed to adhere to processes or systems and those systems have to be put in place to ensure that when assessments are done, they are done according to the service standards and according to the rules of assessment. So I did not take it with a pinch of salt because I felt that perhaps I would be able to apply my skills and knowledge that I acquired in the past.

Mr Maneli: Just to confirm you are then saying that indeed from where you are, there’s never been a situation where you were coerced or harassed to accept this other position, other than the one, you as a South African you would have responded to in the initial stage which is security management?

Mr Neshunzhi: Yes, you know, once you get into the institution and you will perhaps want to move to the other units where you believe that your value will be much appreciated and added.

Mr Maneli: Just to go back on the call from the DG, Mr Fraser, from State Security Agency, I think that I didn’t get well... I’m not sure if it was a connectivity problem, because I think the point we’re trying to get from there is whether you saw it odd that the DG would be engaging you on an operational matter in terms of your function which the PP could raise directly with you? Having explained the dotted line to the Committee this morning on how you're linked to the PP Office directly other than your immediate supervisor the CEO.

Mr Neshunzhi: Yes, I didn’t feel it odd because, like I said, the Public Protector is an executive authority and Arthur Fraser was in charge of the national intelligence of the country. So when he called me, I was not surprised because I thought perhaps there are issues of counterintelligence that he wanted to alert me about, so that we are ready as an institution, because foreign agencies they want to weaken the country, they attack the institution that they believe are powerful or institution where there’s a lot of information. So I did not think it odd, I thought he was just performing his function. Of course, when he told me that I was not providing sufficient support to the PP, that’s when I got concerned, because I did not know in which way I was not providing that support.

Mr Maneli: Did you then believe that all other events, including being told directly to go home, that they would not have been linked to any level of trust in your ability to really do what is necessary to ensure protection in the PP Office?

Mr Neshunzhi: Like I indicated, as I explained earlier, the PP is a hard task master, hands-on person who is results driven. So I wouldn't think that she considered incompetence of me performing in those positions. There could be other reasons that perhaps she did not disclose to me, but I don’t think she doubted my capacity to perform at that level.

Ms V Siwela (ANC): Many, many questions have been asked but I think I’ve got one question which I want to get from our brother here, under paragraph 12 where the issues of informing him to go and stay home. I just want to check whether you did inquire from her the reasons for this, if not, why didn’t you ask those reasons? My understanding is that the position you were holding there is a critical position, as mentioned, you were the eye and ears of Public Protector. The second one is from your good self to advise us as the Committee, do you think the PP failed to appreciate the consequences of her conduct by involving the SSA, particularly Arthur Fraser, in operational issues at the Office of the Public Protector?

Mr Neshunzhi: The first one relates to whether I failed to request reasons for being given leave to go and stay home. I did raise it here and there and I even recall my words to the PP and the Acting CEO , that, “are you guys serious about what you’re doing, why would you do something like this. Can you give me reasons, compelling reasons why I should go and stay home?” and the response was that we want you to go and undertake the training that will be arranged and after that, it is then that you will come back. Obviously my training will not allow really to have an argument with the seniors. Then the second part, I do not want to pass an opinion on that, I wouldn’t know. I wouldn’t want to pass an opinion on that, I wouldn’t know. Allow me not to respond to that. Thank you.

Mr B Nkosi (ANC): Just to clarify a few things, firstly, in paragraph 4 of your affidavit, you use the word “coerced” to allow one of the subordinates but in your response to one of my colleagues, you said you meant “persuaded”. The two are completely different and at the opposite end of each other. What do you mean? What is your last one?

Mr Neshunzhi: It was a relentless persuasiveness that happened, providing much clearer details why the training has to happen as initiated by the institution and not by me. That’s what I wanted to bring across.

Mr Nkosi: Was it coerced or persuaded?

Mr Neshunzhi: Let us for the purpose of this exercise use the latter, which is strong persuasiveness.

Mr Nkosi: The estimates of security and the report thereof, where do you report? Do they cover the entire institution, the Office of the PP and the PP herself? And where do you report this?

Mr Neshunzhi: I did not get the first part of the question.

Mr Nkosi: I mean your security estimates of the institution of the Office of the PP, what do they cover? Do they cover the Office of the Public Protector, meaning the Office, the person or the entire institution, and where do you report this?

Mr Neshunzhi: The security estimates, do you mean in terms of security management? It is not very clear.

Mr Nkosi: You're the chief security manager in the Office so clearly you do an environmental scan...

Mr Neshunzhi: It’s like your crime intelligence who will do whatever they have to do and yes, we have done, I have travelled to all those offices to conduct those assessments and our security programme was informed by the outcome of those assessments.

Mr Nkosi: And where do you report them, what do you report and where do the reports go?

Mr Neshunzhi: Oh, the report goes to both the security committee that was established, the CEO, accounting officer and the executive authority which was the Public Protector.

Mr Nkosi: Before the appointment of the current PP, did you interact with SSA Director General or any of the subordinates and did you have to report to them? Did you receive a call from the DG before Mr Arthur Fraser?

Mr Neshunzhi: No, the PP joined the institution in October 2016, I only joined in 2017, so I wouldn’t know; but inherently I think they had interacted with the state institution, because I could see from the applications and other things that the institution wanted to be helped by State Security. Inherently, they would have done so.

Mr Nkosi: If you look at your affidavit, I won’t go through all the paragraphs but paragraph 19 and 20 seem to be a culmination of your explanation of a particular situation. You then say in paragraph 19 there was an expectation that “I would be the PP’s eyes and ears” and then in the next paragraph, you then say “I subsequently received a telephone call from Mr Arthur Fraser”, subsequent to what? Subsequent to you being expected and you not knowing that the PP took your advice to go office by office, subsequent to what?

Mr Neshunzhi: I think this is subsequent to...it is how it was put together this thing, but remember as you relate a narrative, somebody is taking notes down, you only verify and confirm the contents. Subsequently to the second incident which was the leak from the documents from the Presidency, which turned out to be not leaked but taken to the media by the Presidency, but it did not leak from within. That's what meant, that paragraph 20.

Mr Nkosi: There is a policy, I think it was flighted by the PP’s team, I think the title is “Secrecy Policy”. Did you sign any other subsequent secrecy policies in your position?

Mr Neshunzhi: No, it was that declaration of secrecy.

Mr Nkosi: The PP’s team flighted a policy on secrecy that categorised top secret, secret, confidential; which was signed by Adv Madonsela, I think. I’m asking you did you sign any subsequent policies similar to that?

Mr Neshunzhi: Yes, in 2019.

Chairperson: Thank you, just before you proceed, Adv Bawa?

Adv Bawa: For purposes of clarification for the Member, it was a security policy in 2013 that was signed by Adv Madonsela. There are two subsequent policies in 2019 and 2021 that are signed by the respective CEOs that existed at the time, I think the earlier policy is also signed by the CEO.

Mr Nkosi: As a custodian of that policy, at least, were you not worried that people were vetted or not vetted, who signed the policy?

Mr Neshunzhi: I do not know because when that policy and other security policy, like ICT policy, information security policy on ICT, which we developed as security management; we always held the view that they will be signed by the PP following what we saw, but now perhaps she delegated that or it was his direct responsibility to sign. We were concerned but then he had signed the declaration of secrecy. From the previous job as part of SMS, he once had that top clearance.

Mr Nkosi: What are you answering? I’m asking now did Mr Vusi Mahlangu sign that policy?

Mr Neshunzhi: When it was signed I wasn’t there, but it is signed by him.

Mr Nkosi: I didn’t get that.

Mr Neshunzhi: When the policy was signed, I was not there. It was signed by him, that’s what I noticed.

Mr Nkosi: When you noticed, were you not worried that the person that doesn’t have security clearance in the institution is signing a policy that is going to govern the security environment in an institution for which you are responsible? Were you not worried?

Mr Neshunzhi: My worry would have been insignificant, because upon my return in July, I was subsequently moved from 1 August to Complaints and Stakeholder Management.

Mr Nkosi: We lost you there when you say your worry was what? Just repeat that.

Mr Neshunzhi: My worry will be insignificant, because when I came back shortly after, within one week I moved to another unit.

Mr B Holomisa (UDM): The question I would like to ask is a simple, straightforward one. If the security clearances were conducted under former Public Protector, Thuli Madonsela, do you think that Thuli was breaking the law then? If the answer is in the affirmative, do you see anything wrong that your office or any office for that matter in the Public Protector's Office communicated with the SSA personnel, including Fraser himself?

Chairperson: Did you get that Mr Neshunzhi?

Mr Neshunzhi: Yes, I'll try to answer. I do not think by enforcing security clearance, there was any breach or any contravention of the laws of the country. It is the right thing to do. And interacting with the State Security should be usual because we are talking about the national interest here.

Ms M Tlhape (ANC): I just want to find out from you in your own thinking, what could have been the real reasons for your removal from the security management position?

Mr Neshunzhi: I would say, I believe that perhaps those that were interested with the authority to account to executive authority developed a trust deficit. Because they probably, that is my own view, they probably thought I was unable to protect or to expedite the achievement of the desired result, which was a certificate. I think that could be the other reason, which I do not know. Hence, I’m saying, answering you question, it could be that the development of trust deficit because of failure to achieve the desired results expected by the incumbent at that time.

Ms Tlhape: Now the training that you attended at SSA, how was it beneficial to the institution?

Mr Neshunzhi: It had helped in terms of concretising of the classification model, because we needed to come up with a business model that would suit our environment. In terms of value, yes it has helped, because we were able to develop a template that the business units, especially the core business of investigations, would be able to identify documents and information and classify that information accordingly.

Ms Thlape: Do you know about the CIEX report?

Mr Neshunzhi: No, I do not know. When I came it was ongoing or towards the completion. I do not know and I did not participate on that investigation as I was still a security manager.

Chairperson: Mr Neshunzhi, other Members have asked, I just want you to assist me with three areas of clarity. They normally cover me, but there are just a few areas and mainly they relate to some facts. The first one is, who interviewed you for position of Senior Manager: Security?

Mr Neshunzhi: I was interviewed by the then Acting CEO , who has since resigned. I don’t want to mention names.

Chairperson: I do want to know that name.

Mr Neshunzhi: It was Reginald Ndou who was Acting CEO . I was interviewed by the Public Protector, Adv Busisiwe Mkhwebane and the Head of HR, Mr Gumbi Tyelela and the Chief Director and Acting Deputy Director General from State Security.

Chairperson: Thank you, that’s fair, that’s enough. Two, here I want you to help persuade me, I remain unpersuaded. You said you got a call from Mr Arthur Fraser at the end of 2019. Am I correct?

Mr Neshunzhi: Correct.

Chairperson: That would be the correct date when you got that call, after the end of 2019?

Mr Neshunzhi: I should think so, yeah.

Chairperson: Did you know at that point what Mr Arthur Fraser was doing in terms of the work?

Mr Neshunzhi: When he called me, he was still at State Security. If there is a mistake there could be a mistake of either 2018 or 2019.

Chairperson: I want you to be very clear and help me, if it’s the end of 2019? I want to assist you, because at the end of 2019, Mr Arthur Fraser was National Commissioner of Correctional Services. Even at the end of 2018 he was National Commissioner of Correctional Services, he was not at SSA. Do you want to confirm that you got this call and basically the point I want to put forward to you, is that he was not at his previous job of SSA, because in October of that year, he would have come in front of us as a Justice committee presenting an annual report.

Mr Neshunzhi: Yeah, you are putting the spanner into the works. I need to check my facts but that happened, that is a matter of a fact. He called me and I went, it could be the mixing of the period.

Chairperson: So you would agree with me that when he called you, it had nothing to do with his concern being part of the SSA, because he had long left SSA by the end of 2019. He was in the justice cluster, head of Correctional Services. If he were to speak to you, he would have speak to you as a parolee, because that would have been his job.

Mr Neshunzhi: I’m not so sure about that, I will need to check my figures, my information, but when he called me he was still the head of SSA.

Chairperson: So it would not be correct that he called you at the end of 2019?

Mr Neshunzhi: Yes, it could be the end of 2018, but you’re saying in 2018 he was not there.

Chairperson: Yes, I’m also saying at the end of 2018 he was at Correctional Services as the National Commissioner.

Mr Neshunzhi: I would have to confirm that, but it was shortly before he left. I know for a fact, because I drove to State Security, to Musanda in the evening, so he was still there. I could have mixed up the information or as I related it.

Chairperson: Okay, it could be the end of 2017, because you were still there at the end of 2017. But I just wanted to check, so that we deal with proper facts, correct facts.

Mr Neshunzhi: Okay, thank you.

Chairperson: Are you aware of the number of records that are classified, that the PP Office typically deals with?

Mr Neshunzhi: The number of records?

Chairperson: That are classified, that the Public Protector’s Office typically deals with.

Mr Neshunzhi: It is quite huge, it is quite huge, it is mountainous.

Chairperson: I’m not going to ask you to count mountains, I’ll leave it there. Perhaps the last point, whether you would agree with me, the expression of “eyes and ears” is colloquially referred to as an informer, do you agree with me? The expression “eyes and ears” is colloquially referred to as an informer. Am I wrong if that’s my understanding?

Mr Neshunzhi: I think people are entitled to their own interpretation but when this was crafted it was not meant to mean that. Yes, it can mislead people; it could have been put differently.

Closing remarks

Chairperson: Okay, thank you Mr Neshunzhi. We have now reached the end of our interactions with you. Do you have any final remarks you want to make?

Mr Neshunzhi: Thank you Chairperson and Hon Members for affording me an opportunity to be part of this exciting, difficult, laborious process. It keeps one on his feet, on his toes, because you do not know what next to expect and your good understanding might not be viewed as a better understanding, it could be the worst thing, but I appreciate the manner in which this has been conducted and even the defence team today, I probably escaped the guillotine and I am happy for that. I hope my contribution will enhance the work of the Committee thank you.

Chairperson: Thank you, I wouldn’t want you to go to escaping a guillotine, because we are not a guillotine, even if we are a guillotine, I would not be sure if you had escaped it.

Adv Mpofu: He’s talking about me Chairperson.

Chairperson: Thank you very much Mr Neshunzhi. I know that there is a temptation about other Members wanting to raise hands, I’m not going there now. So I want you to hold back because I want you to excuse Mr Neshunzhi unless there is something drastic... Hon Nqola, Gondwe and Mahlaule?

Mr Nqola: Chair, I want to place a proposition on record in this proceeding, that if we all recall there is a consistent question that Members have asked, which at some point Mr Neshunzhi was answering here and there, it’s fine, but it is the same question, your first question that you have asked which is very important. I think I want to propose to the Committee, can we allow him to go and collect his facts and his records then he responds officially to the Committee in writing, in respect of that question of whether Mr Arthur Fraser was in Correctional Services or in the SSA.

Dr Gondwe: Thank you Chair, I don’t know if you also heard him, he said that he had met Mr Fraser at the farm, so I’m also curious to know whether he has access to the farm. I mean, to explain how because I know if you have access to the farm... other stories. I would like clarity on that as well.

Chairperson: Thank you Hon Gondwe, knowing that there are many farms so I don’t know what farm you’re referring to.

Dr Gondwe: Musanda.

Mr Mahlaule: I’m not sure whether I missed the point but every day here, consistently, after Members have asked questions to a witness, you invoke a certain rule that allows the Evidence Leaders to come back and ask. Even if they don’t have a question, it must be placed on record – that that consistency is there. So I'm pleading with you, let’s be consistent, especially because that issue had been debated, whether after the Evidence Leaders make follow-up, the legal team of the Public Protector will come back or not. It is very important to maintain that consistency.

Chairperson: You ran ahead Hon Mahlaule. Adv Bawa and Adv Mayosi?

Adv Bawa: We don’t have any questions.

Chairperson: Thank you very much. Mr Neshunzhi?

Mr Neshunzhi: Yes, Hon Chair?

Chairperson: I now officially excuse you. Thank you very much for your time, for participating, and responding to the questions to the best of your ability. We appreciate. Hopefully it will assist us in our deliberations and whatever conclusions that we have to make. Thank you very much. You are now excused.

Mr Neshunzhi: Thank you. Have a wonderful afternoon.

Chairperson: Thank you. A brief announcement, we will start early tomorrow at 9, with witness Pillay. With that, the inquiry for today is adjourned. Thank you.

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