Video (Part 1)
Video (Part 2)
The Committee for Section 194 sat for the 15th day of its hearings into Public Protector, Adv Busisiwe Mkhwebane’s fitness to hold office. Members heard testimony from witness Mr Ivan Pillay, former South African Revenue Service (SARS) Deputy Commissioner, that he had been investigated by Adv Mkhwebane in her capacity as the Public Protector and found guilty by her of maladministration and misconduct in three matters on which she published reports between 2014 and 2022. Two of the three reports had been overturned on review. In two of those reports, the evidence that he had provided to her was entirely ignored or irrationally dismissed. With regards to the third report [set aside on 08/08/22], he had not been informed by the Public Protector that he was implicated in an investigation by her and that she intended making adverse findings. In the first report, the Public Protector found that he was a beneficiary of a fraudulent scheme to enrich himself when he took early retirement from SARS. The second report on the so-called “rogue” investigative unit at SARS had created turmoil in SARS as an institution. Mr Pillay stated, "I've always felt that there were bigger issues at play, which was the capture of SARS. That is the reason why so much pressure was brought to bear on us in SARS and many other people in the country. I've never felt that I was a personal target".
Adv Dali Mpofu, SC, on behalf of the Public Protector, argued that as far as the early retirement matter is concerned, it had run its course; it has been concluded and was completely irrelevant to the Section 194 enquiry. He stated that the 'rogue unit matter' is still in the court pipeline as it is pending before the Constitutional Court and so the High Court judgment cannot be replied on. Adv Mpofu insisted that a status of a court judgment is merely an opinion of a court. After his cross-examination of the witness, Committee members questioned Mr Pillay.
Adv Nazreen Bawa: In the approval of your early retirement for full pension benefits, I indicated that the first timeline was not the subject matter of the evidence given by Mr van Loggerenberg at all. What had happened was the two reports had been issued, the one related to the pension fund, the other one related to the SARS unit. And that second one also related to Mr Pillay’s qualifications. Mr Pillay’s evidence will span both reports. I'm going to start off with, let's call it Case No 360099, first, which will give you a brief background on what transpired. The report was issued on 24 May 2019 and an urgent application was launched on 28 May 2019 by Minister Gordhan against the report dealing with early retirement of Mr Pillay. It is important to remember that the main applicant in that matter was the Minister. On 5 June Mr Pillay, who at that stage was cited as a respondent, launched his intervention application to intervene as a further applicant in the matter and to seek in his own right, the review and setting aside of the Public Protector’s report. There was no opposition to this intervention application. The application was argued in the High Court from 30 September to 2 October. The High Court’s judgment was handed down in December, in which the Public Protector’s Report was reviewed and set aside with costs on an attorney client scale. There were cost orders that went in favour of the Public Protector in respect of an interlocutory application. Then there were cost orders in respect of the applicants. The Public Protector, Adv Mkhwebane, then launched leave to appeal the application to the High Court, which was dismissed with costs. There was also a cross-appeal that was similarly dismissed. A petition to the Supreme Court of Appeal (SCA) by the Public Protector, Adv Mkhwebane, was dismissed. These become important because at some point we’re going to present the exact legal costs to this Committee. Whilst it's currently a work in progress, we will spend some time explaining to the Committee how legal costs operate. The Public Protector, Adv Mkhwebane, then pursuant to this petition, launched reconsideration in terms of the rules to the Chief Justice, this was similarly dismissed. Subsequent to the dismissal by the SCA of this application, she petitioned the Constitutional Court, which the court dismissed with costs. So that's case number one, right.
Adv Bawa: The next case, and we'll briefly go through it, to refresh your memory. We went through this case, in some aspects, and we went through the judgment of Potterill J, to some degree in relation to the SARS unit matter. I didn't take you in detail through the second judgment, although we dealt with certain aspects of it. We’re now going to touch on certain paragraphs in this judgment, which Mr Pillay would like to pertinently draw to this Committee's attention. Now this is where the classified report that was prepared by the Office of the Inspector General of Intelligence (OIGI) comes back into play. We've spent quite a bit of time on that but we will then see Mr Pillay’s affidavit deposed on 29 September 2019, as did Mr van Loggerenberg, in support of the Minister’s interlocutory application. Thereafter, in August 2019 Mr Pillay launched an application to intervene, through an affidavit, to review and set aside the Public Protector’s report. Again, his intervention wasn't opposed. In August, there was an application for leave to appeal to the Constitutional Court in respect of Part A of the application, which we dealt with; however, I don't want to be dealing with Part A of the application today; rather, I will be dealing with Part B of the application. What transpired in Part B of the application, after Part A had been dismissed by the Constitutional Court in May 2020, is that the High Court heard and handed down a judgment in relation to Part B of the application in August 2020. It is this judgment in which orders are made against Adv Mkhwebane in her personal capacity – and there are a range of other orders, which I will come to. The appeal is before the Constitutional Court and no judgment has yet been handed down. So there is an important distinction to be made in respect of case 36099, where the proceedings are finished. In the second case, there is still one judgment outstanding before the Constitutional Court. Now I am not going to take you through all Mr Pillay’s affidavits but I am going to highlight them and we will see that the initial application in 36099, as I've pointed out, there is a founding affidavit. The reason I'm taking you through the case index is because we mustn't lose sight of the fact that the judgment by the courts is premised on these affidavits. At some point these affidavits were commissioned and now constitute as evidence. The case starts with the founding affidavit and number 5 is Minister Gordhan’s affidavit. Item number 54 is Mr Pillay’s affidavits and at 58, you will see Adv Mkhwebane’s response to that affidavit. You’ll then go to 66 and 67, the replying affidavit of Minister Gordhan and Mr Pillay, which was served before the court. If we go down, we'll see the Rule 53 record and supplementary record which is filed in court by the Public Protector. If we then go to 91, we will see the application for leave to appeal made to the court itself and the application for leave to cross-appeal at 91 and 92 and 98. Further down, at 101 we will see the affidavits filed at the Supreme Court of Appeal and the answering affidavits in both the appeal and cross-appeal, both of which were refused. At 114 and 115, we see the respective responses to it as well as the application to the Chief Justice. At 126 we will then see the application to the Chief Justice. At 139 you can see the affidavit of Mr Pillay in that process. Then 143 is the application for leave to appeal before the Constitutional Court, brought by Adv Mkhwebane, as well as the answering affidavit by Mr Pillay – so they can be viewed together. That's the one case index.
Adv Bawa: If we go to the other case index, you'll find the first item at number 7. Number 2 are the opening affidavits and then there are many annexures. At number 35, you will see Adv Mkhwebane’s answering papers and at 41… I want to draw this distinction to you, you will see Mr Pillay’s affidavit, where he is listed as the eighth respondent. At 55, you'll see that there's an intervention by the EFF together with an affidavit from Mr Malema and he attaches certain documents at 58 and 59. Replying affidavits from Mr Gordhan at 61. At 69 are the first and second respondents' answering affidavit to the eight respondent’s affidavit. The Public Protector is the first respondent and Adv Mkhwebane is the second respondent. When they talk about the eighth respondent or the second applicant that will be Mr Pillay. You'll see at 74, Mr Pillay‘s affidavit of his intervention application, while at 86 is the affidavit which Mr van Loggerenberg spoke to that he filed which was before you when he gave evidence. There are numerous other affidavits by the various parties. I don’t want to waste time taking you through each one of them. The point I'm trying to make is that there are several affidavits filed by both Mr Pillay, to which Adv Mkhwebane responds or which are filed by Adv Mkhwebane and to which Mr Pillay responds. It is those affidavits which inform the judgments. I’m going to briefly take you through the judgment, which is attached to Mr Pillay’s affidavit. Mr Pillay’s affidavit is to be found at Bundle D, annexure VP1: the judgment of 36099.
Adv Dali Mpofu: Chairperson?
Chairperson: Yes Adv Mpofu? Just pause, Adv Bawa.
Adv Mpofu: Thank you, Chair. Sorry, I've had my hand up but you probably didn’t see it.
Chairperson: My apology.
Adv Mpofu: No problem, thank you Chair. Good morning, again, Chairperson. I just want to… I didn’t want to interrupt my learned friend. I want to place one or two things on record and raise an issue for the sake of formality and for your ruling. The first is that the… In fact, it's appropriate that I do this now, after you've seen the scope of the thousands and thousands of pages that we're going to be dealing with. The first issue pertains to the issue of relevance once again; and it is in the context of what Adv Bawa has correctly pointed out, that as far as the, let’s call it the retirement case is concerned, that one has run its course and it has been concluded. But as far as the Rogue Unit matter is concerned, it's still pending before the Constitutional Court. You remember we went through this before Mr van Loggerenberg’s testimony. We would like to play the same record again, which indicates that as far as we're concerned, the Rogue Unit matter is still in the court pipeline and the retirement matter, as far as I'm concerned, is completely irrelevant to what is happening here. As I did yesterday, I'd like to invite the Evidence Leaders to tell us in respect of which part of the motion, the retirement issue is being raised: subject to your ruling. Well, I think we know what your ruling will be but I have to do what I have to do.
Chairperson: You don’t know, Adv Mpofu. I wouldn’t want to be anticipated.
Adv Mpofu: Okay, apologies Chair. If my hunch is correct, the next question then comes in, which is the sheer extent, Chairperson, assuming the ruling is that you're going to allow them to deal with both matters, of what we have to deal with. Which means, and I can tell you now, we're not going to finish with this witness today, or tomorrow – well, I know tomorrow is a Saturday. But, as I said, we're ready to continue, waya waya (forever). But on a serious note, let me make two submissions: one is that your allocation of time is in any event, unfair, because, you know, the rule of thumb is that cross-examination takes two or even three times of what the Evidence in Chief would be. So your allocation of equal time for the Evidence in Chief and the cross-examination is just inherently unfair. But be that as it may, in this particular case, there is just no way that we can cross-examine these thousands of pages during the time allocated. I'm almost 100% sure that we're not going to finish with this witness. Even if we had an extra day, particularly if I'm right about what you're ruling will be on the relevance. Now, Chair, I'm raising that upfront, so that firstly we get the ruling, but also, so you don't have to – due to the question of time – don't have to deal with it immediately. It's just an issue that I'm raising, because it's clear. I think anyone who has been involved in this process by now will know that if we could take a full day with a witness like we did with Mr Mahlangu, who we only concluded at 8pm. He only had a 15-page affidavit. It would be unrealistic to think that we would be able to wade through 6000 pages, 100 judgments by the Constitutional Court, intervening affidavits, the Public Protector’s two reports and the Rogue Unit, in a few hours. Thank you, Chair. I just wanted to put those two things on the record and to ask for a ruling on the first. Could Ms Bawa maybe explain the relevance?
Chairperson: Thank you Adv Mpofu. I am going to recognise her so that she can speak to us whether she wants to deal with the mountain of issues today.
Adv Bawa: No. Chair, the point of having taken you through that exercise was to say to you that all of those matters have all been considered by the courts.
Chairperson: Just pause, Adv Bawa. Hon Kevin Mileham, you are disturbing us. Please mute.
Adv Bawa: The point of taking you through those affidavits was not for purposes of leading the evidence on those affidavits. The point of taking you through those affidavits was to show to you, there are affidavits on the one hand by the parties who brought the applications. The Public Protector had an opportunity to answer the allegations in those papers before the court. Those were the factual and legal submissions contained in those affidavits and the arguments which informed the judgment before you. That is the framework which was served before the court, and which also informs the judgment. It's those judgments which have made findings against the Public Protector in some instances and findings for the Public Protector in respect of certain arguments against her, which are based on huge amounts of papers which serve before the court. I certainly don't intend to take Mr Pillay to those affidavits today. Nor do I intend to take you through Adv Mkhwebane’s affidavit today. We are not going to be leading evidence and cross-examining. Well, I can't say what Mr Mpofu’s going to be doing, but I'm certainly not going to be leading you on the evidence. They are judgments. They are judgments that have made findings against the Public Protector. And it's those judgments which have informed this process. They are specific judgments before this inquiry. And Mr Pillay is one of the people who, pursuant to a call from this Committee to provide evidence relevant to the motion before it, had come forward in that public submission process and said, “I wish to place an affidavit before this Committee, and I wish to make submissions.” The context of that are there are two judgments which underlie Mr Pillay’s affidavit. Those are the judgments relating to the SARS unit and to his pension. I'm certainly not going to spend hours dealing with a pension. We're going to highlight the salient parts of the judgment in the course of taking Mr Pillay through his evidence and his affidavit.
Chairperson: So, by and large, you’re placing these issues in the Committee for the record?
Adv Bawa: Yes. We have gone through various witnesses, and each of them has various cases. There are thousands of pages in affidavits underlying the CIEX judgment and there are thousands of pages of affidavits underlying the Vrede Dairy. As such, the Committee needs to have an understanding that these judgments don't get plucked out of the air. They are informed by affidavits which the parties placed before court and constitute the evidence which informs the judgments before that court in various instances. There are affidavits at various levels of those courts, but the judgments which come out have got certain orders and certain ratio that are binding. Whilst Mr Mpofu and I may disagree on the extent to which you rely on those judgments, this simply shows that it has to be argued at some point and I am certain that Mr Mpofu will tell the Committee where he disagrees with the judgment. My only point that I sought to make to the Committee this morning is that Mr Pillay has filed numerous affidavits on the basis of those cases and Adv Mkhwebane's answer to those affidavits or rather Mr Pillay’s answer to Adv Mkhwebane’s affidavits, are what informs the judgments – which has been attached to his affidavit and is before you today.
Chairperson: Thank you for that clarity. Adv Mpofu?
Adv Mpofu: Thank you, Chair. Just briefly to reply, I'm not entering that space about whether the Committee can rely on judgments or not or what our views are on that. I’ve raised two issues, one has not been answered. This relates to the issue of relevance. I'm assuming then there's no relevance? But as I say, I still am still confident of what the ruling will be. But the…
Chairperson: Relevance on the pension one? Is that what you’re asking?
Adv Mpofu: Yes, that’s the issue I raised, which has not been answered. But, as I say… anyway. I'm doing it for formality because…
Chairperson: No, I don’t want you to do things… Adv Mpofu, just pause. I don’t want you to do things for formality because if you do that, it would mean that you have a committee and a chairperson that have a completely predetermined mind on any issue. That would not be correct.
Adv Mpofu: Yes, and that’s what we believe. Thank you Chair. We’re open and ready to be proven wrong. We ‘have an open mind’, as they say in the Mail & Guardian case. No, Chair, I'm not referring to the predetermined outcome. I'm simply saying that I've raised that issue, as it has not yet been raised. But the more pertinent issue, Chair, that I'm raising is this: I appreciate what Adv Bawa is saying and she will tell you I'm the person who proposed that we start early today. It was my suggestion that we start at nine, because we were all trying to assist in ensuring the conclusion of Mr Pillay’s testimony, because we were aware that he is overseas. But I'm telling you that I'm not prepared, or rather, the Public Protector is not prepared to accommodate the extent of unfairness. I'm simply saying what has been put to you… the scoping that has been put to you. Adv Bawa is right, I have no control whatsoever, she might want to ask one question, and that is her prerogative, but as far as the cross-examination is concerned… because when she puts those issues, she didn't put them there just for decoration, she put them there because they have relevance to some of the issues that she wants to argue at the end. I'm simply saying that on that basis, I don't want to be dramatic, but it's impossible that this witness will finish today. I'm telling you that as the Chair, so that you keep that in the back of your mind, because we're not going to be bulldozed into asking three or four questions, just so that we meet some predetermined timetable in this regard.
Chairperson: Thank you. The timetable will be determined by the Chair. I’m firm on that, and when that time comes, with its issue, we will always consider that.
Adv Mpofu: Thank you, Chair.
Chairperson: Adv Bawa, just back to your last point on the relevance of the pension issue, which is in the affidavit.
Adv Bawa: It’s dealt with in Mr Pillay’s affidavit, unless I’m going to waste more minutes having this debate? Mr Mpofu has already taken 15 of my minutes.
Adv Mpofu: No, Chair. I have to react to this.
Chairperson: Why do you have to react to this?
Adv Mpofu: I’m sorry, Chair. Just for the record, as I say, I’m not expecting miracles. So what, Chair… It is not an answer to say that somebody put something in their "public reaction" to the committee invitation. I mean, that just opens up a whole new can of worms, because what that means, according to your version of events, Chair, is that you’re guided by the motion. You know our views about that. But even now, you are going even beyond the motion. Now you are telling us that you are going to also include, as relevant to the motion, things that came two months ago, which were never taken through the process of prima facie filtering by the Independent Panel report. If that is how this Committee is going to run things then we must be told because you cannot be told that something is relevant when it was not part of the motion. Your own directives say that something is relevant if it talks to the motion. I'm asking a simple question, which part of the motion is the pension issue going to refer to? I have had no answer to that, except to say that it's part of some public submission, which we were not consulted about. Nobody told us that. We asked whether this will form part of the evidence – I asked specifically in a letter which we wrote to you in May, and we were assured that… because we said, if there's going to be new evidence that comes as a result of the public input, then we need to have audi alteram partem applied to that, then your response was, ‘No, that's just for public participation’, I'm paraphrasing or whatever. But it's not part of the motion, yet now we're told that it is.
Adv Mpofu: So I’m putting it on the agenda – know what’s going to happen – to ensure that I'm never accused one day that we were acquiescing in this unlawful and illegal procedure.
Chairperson: Thank you Adv Mpofu. Just to make the point: yesterday, you raised certain objections, and they related to other separate matters. While today, and you are within your right to do so, you are raising an objection on relevance. Thus, there is never a one size fits all type of ruling and there never will be one from the Chair. As such, I wouldn't want you to invoke any issues just for formality sake, because we're not yet there in the way we interact and in the way we're running this process. Two things because I think you, to your credit, would have raised these issues upfront. We differed in terms of our own directives and terms of reference, but differing with you does not mean we're going to bulldoze our way as a Committee. As part of fairness, we've got to listen to the issues that you're raising. There are two things I raised yesterday: one let us as this Committee, in terms of Directive 8.2, see what the relevance of the pension matter will be. I will have to rule on that matter once the Committee has applied its mind on the evidence. Doing that, however, does not mean that the Committee will be ignoring the points you are raising. I hope you take it in that spirit. There is one last point that I’d like to ask. I think, as suggested yesterday, both you and the Evidence Leaders must attend to some of the remaining issues on evidence, relating to common witnesses. They should not be raised when we start the hearing, particularly as we have a list of witnesses that are known by both teams. Also, both teams know what this witness is going to be focusing on. I request that these issues be attended to by the two teams, and where there are challenges, I think as a Chair, I will come in so that none of you are taken by surprise or one side feels that their concerns are not being taken into consideration. So for us to cure that, I think it would be proper that then you come in and say, ‘We have discussed this. We don't agree and I'm placing that record.’ So I make that request for us going forward. Thank you Adv Mpofu. May we proceed, Adv Bawa? Just before you proceed, Hon Mulder?
Dr C Mulder (FF+): Yes, thank you Hon Chairperson. My apologies. When Adv Mpofu made his point, he said that he didn’t want to be blamed for participating in this illegal and unlawful procedure.
Adv Mpofu: Yes.
Dr Mulder: He said it is? Fine. The point is, I want Adv Mpofu to make up his mind. You can’t have it both ways Sir. When we started with these proceedings, you said that you respect this procedure in Parliament and that you're participating voluntarily in this procedure. When you put your arguments in front of the Western Cape High Court, you also argued that this procedure is unlawful and illegal. Do I understand it correctly, that your view is that this procedure is unlawful and illegal, but you are here under protest? I just want to say from our perspective, this procedure is absolutely legal and it's absolutely lawful in terms of the law of the country and in terms of resolution taken by Parliament; and we cannot accept this kind of slur being thrown at this Committee on a Friday morning. Thank you, Chairperson.
Adv Mpofu: Chairperson?
Chairperson: Thank you, Hon Mulder. I want to proceed but I'll acknowledge you Adv Mpofu.
Adv Mpofu: I'll be very brief, Chair. No, I think the Member is out of order and you should rule it as such. I've said from day one here that we are participating in this process, but our view is that it is illegal and irrational. I spent half a day explaining why and it was debated by this Committee; and our presence here was accepted on that basis. If Hon Mulder is a judge and he wants to tell us that it's legal, that’s his privilege. But I am just telling you our version, and I know that there is a version, a counter-version, by other parties in the court case. It's unhelpful for me to hear Mr Mulder’s judgment on the pending judgment of the High Court. I'm simply telling you where we stand on the issue of legality. To say something is illegal is not disrespectful. If it's illegal, it's illegal. I'm here and we’re here to participate but we have a view of the process and no one is going to bully us into their own view. Thank you.
Chairperson: Okay, thank you Adv Mpofu: As I proceed to Adv Bawa, I’d like just to re-emphasise the point, that this Section 194 Committee, that I’m presiding over, is not unconstitutional and unlawful. I think we respect the view that you shared, which you have also ventilated in court. There is no court that would have declared our process unlawful and unconstitutional.
Adv Mpofu: And there is no court that has declared it constitutional, either.
Chairperson: No, don’t interfere with the Chairperson.
Adv Mpofu: I apologise.
Chairperson: Thank you. I therefore would like to proceed. Adv Bawa?
Adv Bawa: If we can now turn to Mr Pillay who's been waiting patiently, for his evidence to be led. Mr Pillay, are you there?
Mr Ivan Pillay: Yes, Advocate. Yes, I am here.
Adv Bawa: Now, Mr Pillay deposed to an affidavit, which one can find in our Bundle D at page 1543. It was specific to the process, followed by the Committee asking for public submissions. Correct?
Mr Pillay: Correct.
Adv Bawa: Attached to that affidavit are the two judgments, the one relating to the pension matter, and the one relating to two further issues: the SARS Unit and the issue of your qualifications?
Mr Pillay: Correct, Chair.
Adv Bawa: The third annexure relates to another report issued by the Public Protector in an entirely different matter, correct?
Mr Pillay: Correct.
Adv Bawa: If one turns to the matter dealing with the SARS unit in paragraph 120 of the judgment.
Mr Pillay: Yes.
Adv Bawa: Right, it indicates that you had previously been employed at SARS and that you had various senior positions within SARS from 1999 to May 2015 when you left its employment. It then details those positions to be: Chief Manager; Chief Investigations Officer; Enforcement Chief Officer and Security Strategy and Enablement; Deputy Commissioner; as well as Acting Commissioner and that the HRIU (High-Risk Intelligence Unit) formerly known as the SBU unit and renamed the NRG unit, had reported directly to you from inception in July 2007 to March 2008. Correct?
Mr Pillay: Correct, Mr Chair.
Adv Bawa: In paragraph five of your statement, you point out that you had been investigated by Adv Mkhwebane in her capacity as the incumbent Public Protector and found guilty by her of maladministration and misconduct in three matters on which she published reports. In two of those reports, the evidence that you had provided to her was entirely ignored or irrationally dismissed. With regard to the third report, which I think was published in May 2022, you had not even been informed by the Public Protector that you were implicated in an investigation by her and that she intended making adverse findings. That's in paragraph five of your affidavit, correct?
Mr Pillay: That's correct.
Adv Bawa: That is the context in which you have come to give evidence before the Committee today?
Mr Pillay: That's correct.
Adv Bawa: You then, in your affidavit… So, we'll call the latter report, the third report. In respect of this third report, to which you have referred in your affidavit at paragraph 9.1, you’ve indicated that there are serious adverse findings made against you and remedial action in the form of a criminal investigation. Did you receive any notice in respect of this report?
Mr Pillay: I received no notice.
Adv Bawa: Any invitation to attend an interview?
Mr Pillay: No.
Adv Bawa: You then deposed court papers to be issued on 25 May 2020 asking for the report to be reviewed and set aside, correct?
Mr Pillay: Correct.
Adv Bawa: So now let me take you to the judgments which is next to your affidavit, VP1, which is the judgment relating to your pension, let's call it the pension matter. One sees from the judgment and the report that it emanated from an anonymous complaint relating to matters as far back as 2010. Is that correct?
Mr Pillay: That is correct.
Adv Bawa: That method related to what was in essence the Minister's approval of a recommendation by the then Commissioner of SARS approving your early retirement with full pension benefits and your then retention on a fixed term contract thereafter?
Mr Pillay: That is correct.
Adv Bawa: The judgment in course of its ratio essentially finds that the Public Protector had, in the first instance, not applied section 6(9) of the Public Protector Act correctly and did not have jurisdiction to deal with the matter. He then finds in favour of the Public Protector that on certain in limine points that certain averments that occurred in Mr Gordhan’s affidavit be struck out. The court goes on and it looks at the various grounds of review. It then finds that there are merits in a number of the grounds in review and it essentially sets aside the report. Would that be an accurate summary of the gist of the court judgment?
Mr Pillay: Yes, it is.
Adv Bawa: At paragraph 11 of the judgment, it sets out the remedial action findings and the remedial action that had been ordered by the Public Protector. Were you served with a subpoena in this matter and did you appear before the Public Protector at all?
Mr Pillay: Yes, I did.
Adv Bawa: And by the time this matter was heard, the matter in relation to the SARS unit had already been handed down, correct?
Mr Pillay: Correct.
Adv Bawa: And the full bench in that matter had dealt with the ambit of section 6(9) and the question of special circumstances, correct?
Mr Pillay: Correct.
Adv Bawa: If one looks at the background of the judgment, in paragraph 41, the court said that what occupied its attention revolved around the point in time at which the special circumstances must exist and be judged for. In fact, it was common cause that the complaint that emerged in 2010 and that the two year old criteria had already passed. As such, the debate by the court concerned the stage of the process before the Public Protector and whether it was necessary for special circumstances to exist. I won't take you through the law on this issue, but one can see from paragraph 51 of the judgment, which says, “That the upshot was that the special circumstances required in section 6(9) of the Public Protector Act must be in existence at the time the Public Protector exercises her power to permit the entertainment of a complaint, which is more than two years old. She must use these factors when she exercises her discretion, whether or not to permit. For the Public Protector to exercise the discretion properly at the time of such exercise, she must have all the facts before her. It does not avail it to say she remembered other reasons later on.” This was at the time, in line with the established SCA dicta, that reasons must be given at the time when a decision is taken. Subsequently, the full bench decision was given. Now, if one goes to paragraph 54 and 55 of the judgment, one sees that it says, “The fact that the Public Protector dealt with this issue in this haphazard manner is an indication to us that she failed to understand this fundamental jurisdictional requirement or she simply ignored it from the very outset. It is also an indication that she does not know when to exercise her discretion in terms of the section. This leads to an inference that when the Public Protector commenced with the investigation in this complaint, there were no special circumstances in existence. Relying on GEMS which binds this court and following on Gordhan, where there are no special circumstances the Public Protector lacks necessary jurisdiction in terms of section 6(9) of the Public Protector Act.” The court then concluded that, “Based on section 6(9), the Public Protector had no jurisdiction in the matter” and it said in 56, “our finding is dispositive of the entire matter, axiomatically, the report which flows from the impugned decision, must be set aside.” Correct?
Mr Pillay: Correct.
Adv Bawa: The court goes further and apart from the absence of jurisdiction, concludes that, “The report is fundamentally flawed and falls to be reviewed and set aside.” If one goes to paragraph 123, of the judgment, you will see that there were a number of grounds which were argued and which deal with that matter. I'm not going to take you through all of them but what the court says is, “We have the view that the errors of law committed by the Public Protector, coming to her decision and/or findings, is material, as we shall hereunder show”. They then deal with the set findings in detail to show that, “The Public Protector was wrong in law, and that Mr Gordhan’s decision was perfectly lawful and that there was a mistake in law, which was material, rendering her findings irrational.” The court then deals with those in the course of each judgment from paragraph 132 onwards, and we won't necessarily deal with those in detail. But in essence, it comes to the conclusion that the Public Protector's report was irrational in that regard, correct?
Mr Pillay: Correct.
Adv Bawa: If I take you to 215 and 216 of the judgment, it says that the Public Protector had concluded that the payment of R1.258 million paid by SARS amounted to an irregular expenditure premised on the fact that Minister Gordhan had acted unlawfully in approving full pension benefits. The court concluded that this happened by operation of law and requires no approval by Minister Gordhan. From paragraph 218 to 224 it said the remedial action is considered irrational and set aside.
Mr Pillay: Which is so.
Adv Bawa: There was an added complaint by Minister Gordhan. At paragraph 224 he raised the complaint that the Public Protector did not allow him an opportunity to make representations on the remedial action being ordered and in paragraph 226, the court records, “It was common cause that the Public Protector had not afforded Minister Gordan a hearing on the remedial order she had made against him in the section 7(9) notice that the Public Protector had sent.” Had you been given notice of any remedial action, Mr Pillay?
Mr Pillay: No.
Adv Bawa: The court then…
Chairperson: Try to get closer to the mic, Mr Pillay, so that we can hear you properly.
Mr Pillay: I wasn’t given any notice of the remedial action.
Chairperson: Thank you, that’s much better. Adv Mpofu, I see your hand.
Adv Mpofu: Yes Chair, I was just taking advantage of your intervention. I’ve had my hand up and you’re not recognising, is it because my [Zoom] hand is black?
Chairperson: Well, you made it black, not me.
Adv Mpofu: Thank you Chair. I wanted to check, for my notes, if I heard Adv Bawa correctly, when she referred to the ratio of the decision?
Adv Bawa: Mr Mpofu, we can have an argument of what is the ratio…
Adv Mpofu: No, no. I’m simply asking if I heard you correctly. I’m not arguing.
Adv Bawa: Yes, you did.
Adv Mpofu: Thank you.
Chairperson: Thank you Adv Mpofu. Go ahead, Adv Bawa.
Adv Bawa: Give me a moment, Mr Pillay. Mr Mpofu has assisted me in losing my train of thought. Give me a second. Now, Mr Pillay, you were successful in opposing the appeals. I had already pointed out that in respect of the pension matter, the application before the Public Protector’s application for leave to appeal before the Constitutional Court was dismissed with costs, correct?
Mr Pillay: That is correct.
Adv Bawa: Right. And this was after several courts had held that there were no reasonable prospects of success on appeal, correct?
Mr Pillay: Yes, it is so.
Adv Bawa: I'm now going to take you specifically to the judgments dealing with the SARS Unit on case number 48521 which would be the first annexure to your affidavit.
Mr Pillay: Yes.
Adv Bawa: If one goes to paragraph 133 of this judgment, the court said, “In determining whether the Public Protector’s findings were rational, it is important to ascertain what processes she followed in coming to the findings and what evidence was available to her when she made the findings as a starting point. It is necessary to briefly deal with the complaints against Mr Pillay as set out in the subpoena, which was delivered to Mr Pillay by the Public Protector on 10 April 2019 and the notice in terms of section 7(9) of the Public Protector Act”. Excuse me, for just a moment.
Mr B Herron (GOOD): Chair, I think that’s the wrong paragraph, I’m not following.
Chairperson: Come again, Hon Herron?
Mr Herron: Adv Bawa referred us to paragraph 133 of the judgment and then read something that is not [on the screen].
Adv Bawa: Sorry, I didn't tell our IT operator that that was a separate judgment, my apologies. Effectively what I read was that Mr Pillay had deposed two affidavits. One on 23 April 2019, a response to the subpoena, which is identified in the judgment as the first affidavit. The second dated 18 June 2019 was recorded as the second affidavit in the judgment. In paragraph eight of your affidavit before this Committee, you refer to the report on the investigation into allegations of violations of the Executive Ethics code by Mr Pravin Gordhan, as well as allegations of maladministration, corruption and improper conduct by SARS. This is the report that was issued on 5 July 2019 and which was the subject matter of this judgment, correct?
Mr Pillay: That is correct.
Adv Bawa: Now it was suggested to this Committee that Minister Gordhan was the primary target of this report. Would you agree with that categorisation of the report?
Mr Pillay: Comrade Chair, it is difficult for me to say exactly, but as I understand it, that term came from an earlier discussion. I've always felt that there were bigger issues at play, which was the capture of SARS. That is the reason why so much pressure was brought to bear on us in SARS and many other people in the country. I've never felt that I was a personal target. I don't know whether that answers the question. Thank you.
Adv Bawa: Mr Pillay, if you go to paragraph 130 of the judgment, there were five adverse findings made against you by the Public Protector that is detailed in the judgment. It’s detailed in the judgment, under separate headings:
i. SARS, under Mr Pillay’s guidance and management as General Manager: Enforcement and Risk Division, established an intelligence unit "in violation of South African Intelligence prescripts". (This aspect has already been dealt with earlier in the judgment)
ii. Mr Pillay was involved in a failure by SARS to "follow proper procurement processes in the procurement of intelligence equipment which the intelligence unit utilised for gathering intelligence" (“the equipment issue”).
iii. Mr Pillay was involved in a failure by SARS to "follow proper recruitment processes in appointing employees who worked for the intelligence unit" (“the employment issue”).
iv. Mr Pillay was involved in the carrying out of "irregular and unlawful intelligence operations". More particularly, that "Mr Pillay and Mr Janse van Rensburg irregularly procured Mr Helgard Lombard and Mr De Waal and/or authorised Mr Helgard Lombard and Mr De Waal to intercept communication from the offices of the DSO and those of the NPA without an interception direction issued by a designated judge in terms of the Regulation of Interception of Communication and Provision of Communication (sic)” and that the “conduct of SARS officials in such unauthorised interception and
surveillance is in violation of the Regulation of Interception of Communication and Provision of Communication (sic) and amounts to an abuse of power as envisaged in section 6(4)(ii) of the Public Protector Act" (“the interception issue”).
v. Mr Pillay was appointed to the position of Deputy SARS Commissioner and subsequently as SARS Commissioner “whilst he did not possess the necessary qualifications for the positions" (“the qualification issue”).
Would it be fair to say that these were adverse findings that were made against you, irrespective of how you wanted to categorise, or who you wanted to categorise as the primary target of the report?
Mr Pillay: Yes, through you Chair. These are very serious allegations.
Adv Bawa: And how did that impact you?
Mr Pillay: Well, I'll have to go back a bit. The problems really started towards the end of the latter part of 2014 when I was suspended from SARS and I finally left SARS. And there were two attempts to criminally prosecute me. There was a continuous barrage of smears in the Sunday Times for a long period. The Public Protector’s reports and findings then come on the tail end of that, so it's been one long series of attacks from 2014. Well… and it still continues because there's a third report that is current and the second report, though there is a judgment that stands, the Public Protector has applied for leave to appeal to the Constitutional Court. It has created turmoil in SARS as an institution. It created turmoil amongst many staff members, I think perhaps up to 2000 people left SARS during that turmoil. It's caused turmoil obviously, amongst our friends and families. Thank you.
Adv Bawa: Now, you join the application as a co-applicant and your case was fundamentally premised on two points; the absence of special circumstances as foreshadowed in section 6(9) of the Public Protector Act, and that the Public Protector had failed to obtain evidence and relied on unsubstantiated allegations, ignoring evidence provided by you, resulting in the report being set aside by a full bench as irrational, procedurally unfair and flawed. At paragraph 132 of the affidavit it details in summary what you have set out and that with regard to the issue of your qualifications, you had not been asked of this in the section 7(9) notice which you had been served, correct?
Mr Pillay: Correct.
Adv Bawa: Okay. Then one sees at paragraph 162 of the judgment, the court details some of the affidavits that I have already referred to earlier on that had been put before the court in its consideration of this matter. Do you confirm that you are a deponent of quite a number of those affidavits?
Mr Pillay: Yes.
Adv Bawa: Then in paragraph 163… let me take you back; you had previously provided… you had informed the Public Protector, both Adv Mkhwebane, as well as the predecessor in 2014, who had also received complaints regarding the SARS unit, that you had provided them with information, correct?
Mr Pillay: Correct.
Adv Bawa: You pointed out to the court that the predecessor had elected not to further investigate the complaint in relation to the unit but focused on complaints concerning irregular recruitment?
Mr Pillay: Yes, it is so.
Adv Bawa: Right. If one looks at paragraph 163, this refers to a supplementary founding affidavit that you had filed after the final documentation and the Rule 53 record was provided. In the last line, it says that ‘it contained and it confirmed that the documentation that you had provided in 2014, form part of the record which served before the Public Protector when she compiled her report’, correct?
Mr Pillay: Correct.
Adv Bawa: If one then goes to paragraph 192 of the judgment; and Mr Pillay, I want you to take the judgment from here because if you look at your affidavit, paragraphs 8.3 and 8.4, you say that in the course of the Public Protector’s investigations relating to the SARS Investigation Unit, you gave extensive evidence to the Public Protector and provided her with comprehensive explanations and relevant documentation. This was all done under oath. “The Public Protector simply dismissed my evidence out of hand, preferring to rely on untested hearsay and gossip to make her findings. During the subsequent review proceedings, I, again detailed evidence, and I provided the evidence on oath of Mr Johan van Loggerenberg, who was the head of the SARS Investigation Unit at all material times. This evidence was the only evidence provided to the Public Protector under oath which dealt directly with activities of the SARS Investigation Unit. The Public Protector dismissed my evidence as simply being my view and opinions. She did not deal at all with Mr van Loggerenberg’s evidence.” We've already heard Mr Loggerenberg’s evidence in that regard and it wasn't contested that his evidence was not dealt with. You, particularly, in your affidavit, highlight from paragraph 192 of the judgment… and perhaps you can share with the Committee those paragraphs, emphasising particularly what you wish to highlight. That's paragraph 192 of the judgment.
Mr Pillay: Thank you Chair. Paragraph 192 says: “This is further evidenced in the way the Public Protector approached Mr Pillay’s evidence in the review application. In her answering affidavit she adopted a dismissive attitude towards what she termed Mr Pillay’s ”views”, and dealt almost exclusively with Mr Gordhan’s various affidavits. This is clear from the following passage taken verbatim from her answering affidavit:“The Public Protector was not bound by Mr Pillay’s views on affidavit. She considered them but found that they were a defence of an indefensible establishment of a spying unit within the SARS." Paragraph 193: “She then set out a number of points on which she expressed that she was in disagreement with Mr Pillay’s “views” and dismissed the entirety of what was deposed to by Mr Pillay in his two affidavits dated 23 April 2019 and 18 June 2019 in the following terms: “The rogue unit narrative is their coining which is irrelevant to the Public Protector. The views of Mr Pillay on State Capture are just that – views.......” ” Mr Pillay did not wish to candidly and openly deal with the issues that the Public Protector was interested in.....” “His response was belligerent and displayed a lack of interest in giving the Public Protector coherent and straight answers to the questions asked......” “The allegations made by Mr Pillay were vague and speculative. They were riddled with political narratives totally irrelevant to the specific issues that required the Public Protector to investigate.” Mr Pillay attacked the investigation and questioned its legitimacy “based on his political theories of State Capture and false political narratives.” “He ignored the evidence that the Public Protector indicated to him and in broad terms sought to discredit that evidence without giving alternative and credible evidence.” “I disagreed with Pillay on the legal basis for the establishment for the spying unit within SARS. His explanation sought to avoid giving credible and straight answers but windy and verbose.” “Mr Pillay waffled about the so-called rogue unit narrative and the capturing of SARS, giving no credible evidence." Then we go to 194, “It is important to note that no other party in these proceedings, including the Public Protector and the EFF, has sought to respond at all to what Mr van Loggerenberg testified to in the affidavit deposed to by him. What he says thus stands entirely uncontradicted and unchallenged. The Public Protector has put up no facts or evidence, either in the Report or in her affidavits filed in this matter that refutes the evidence provided by Mr Pillay (and now by Mr van Loggerenberg). All that she has done in her answering affidavit is belabour evidence put up by Mr Pillay as simply his "views" and opinions, and that she was not bound by it.”
Adv Mpofu: Chair?
Mr Pillay: Then we go to paragraph 195. “This evidences the most egregious failure…”
Adv Mpofu: Chairperson?
Chairperson: Yes, I've noted you. I just want him to finish his sentence.
Mr Pillay: I’ll start again “This evidences the most egregious failure of the Public Protector to understand and honour the most basic requirements of the office she occupies. It is plain that the Public Protector has approached this investigation with an unwavering commitment to her own preconceived views and biases. The manner in which the Public Protector had, and continued, to simply ignore Mr Pillay’s evidence, clearly demonstrates her manifest bias. We will return to the issue of bias herein below.”
Chairperson: Thank you. Just pause there, Mr Pillay. Adv Mpofu?
Adv Mpofu: Thank you Chair. Sorry, I didn’t want to disrupt Mr Pillay. But Chairperson, really, this is a mighty waste of our time. We can’t have a situation where Ms Bawa brings a judgment, she reads it, then Mr Pillay reads the same judgment. We read the judgment yesterday, and we’re going to read it ourselves tomorrow. For what practical purpose is that? Apart from the fact that the judgment is an opinion of a court? What is the point of all this if witnesses are simply to repeat and reread the judgment, if we can read for ourselves?
Chairperson: Okay, I get your question. Thank you. Adv Bawa?
Adv Bawa: I would have thought the judgment is binding on everybody. We can have that debate later. Mr Pillay wished to emphasise certain parts of the judgment and he is doing so. He is entitled to give his evidence as he wants to. When we spend 45 minutes on other stuff, we don't bother arguing about the Committee’s time being wasted.
Adv Mpofu: So…
Chairperson: I have not recognised you Adv Mpofu.
Adv Mpofu: Sorry Chair.
Chairperson: I want us to proceed. You have asked a question relating to the purpose of doing this and it’s been explained. I want us to leave it there and proceed with Mr Pillay.
Adv Mpofu: So you accept that that's what we must do in this Committee, to just read judgments?
Chairperson: That’s not what I’m saying.
Adv Mpofu: No, that’s what you're saying. You’re saying we must proceed on that basis.
Chairperson: No, I’m saying that there is an emphasis on certain paragraphs. So please, let’s hold back, Adv Mpofu.
Adv Mpofu: I’m sorry Chair, without any disrespect. Chairperson, I don’t know where this is going to end. We have 500 pages of this thing. If you or Ms Bawa could tell us what is the value or purpose of what has just happened in the last 10 minutes of reading a judgment that we've all read, without even saying anything about it? Can’t we read? Then just allow it on the basis that because there was an objection earlier and therefore we must have our time wasted. I mean, that's even more ridiculous.
Chairperson: No. Thank you Adv Mpofu. You have your point recorded. And the point being made is that Adv Bawa wants to make a certain emphasis, and she’s leading the witness in that regard.
Adv Bawa: Can I suggest that I ask my colleague… I would get done a lot quicker if we could refrain from constant interruptions.
Chairperson: Thank you. Mr Pillay?
Adv Mpofu: No, that’s not an interruption. I'm raising a point. Why do you call it an interruption? I'm not going to sit here and listen to 500 pages of…
Chairperson: Adv Mpofu, I don’t appreciate you interrupting, without acknowledging the chair.
Adv Bawa: Mr Pillay, it was those findings in the judgment which you sought to highlight to this Committee. Is that correct?
Mr Pillay: Yes, there are a few more paragraphs. I am in your hands.
Adv Bawa: I’m going to take you through the few more paragraphs that you want to highlight to the Committee, Mr Pillay, in that regard. If you go further in your affidavit, you say in your affidavit that the, “High Court reflected at length on the manner in which the Public Protector had assailed your dignity. Firstly by irrationally finding that you are unqualified to be appointed as a deputy commissioner of SARS, and second by going to the extreme or even denying you, your matric certificate in her campaign to impugn your dignity.” Can we just, in dealing with the matric certificate, take it back for a second. We don't have to go to the judgment to do that. But the judgment… There was a complaint made against you.
Adv Mpofu: Chair? Chairperson?
Chairperson: Your hand is not raised.
Adv Mpofu: Sorry Chair. I'm just trying to be helpful here. I was saying, Chair, just to be helpful, so that we don’t have this to-ing and fro-ing and wasting my time. On the basis of what was proposed by Hon Herron, I want to place on record that we admit that what is typed here in this judgment is there and all other judgments.
Chairperson: Thank you. Adv Bawa?
Adv Bawa: Mr Mpofu, I understood from the start of the proceedings, that you also admitted that the contents of what is contained in the affidavits of Adv Mkhwebane are also what they purport to be in the affidavits. Am I correct?
Adv Mpofu: Am I under cross-examination now? No, I’m not… I didn’t even hear the question. I was just placing something on record. You can ask me offline, whatever you want to ask me.
Adv Bawa: But why do I need to ask you offline, Mr Mpofu? Are the affidavits under oath? I’m assuming we’re not going to have a debate about the correctness of the affidavits?
Adv Mpofu: No, I don't know what you're talking about. I was just placing something on the record about this witness, so whatever else you want to raise about affidavits, we'll deal with it when we deal with it. I don't even understand the question. I was just trying to avoid interrupting this witness by reading judgments. I'm saying we admit the judgment is there and it was given by the court and what is typed is what is typed.
Adv Bawa: And do you admit to the accuracy of the judgment, Mr Mpofu?
Adv Mpofu: Chairperson, I’m not… I don't… No, what are you talking about? How can I admit to something that is blatantly wrong? All these judgments are factually wrong, and otherwise, they say… One of them says that the Public Protector said she didn't read the IGI report, which she never did. Which is not true. How can I admit something that's not true? And one of them says that she said that she referred to the vulnerability of the Reserve Bank and your witness said it was his. Must I admit to all of that fake news?
Chairperson: Thank you, Adv Mpofu. Adv Bawa, I want you to proceed with leading the evidence. Adv Bawa, I kindly want you to proceed with leading the evidence.
Adv Bawa: Thank you. If one goes to the judgment at paragraph 134 and we don't need to go there, there was a complaint made against you that in paragraph seven of the subpoena and the court notes that the issue of your qualifications was not raised in the subpoena issued to you but raised in the subpoena issued to Mr Gordhan?
Mr Pillay: Yes, it is so.
Adv Bawa: And at the time the report was released, the Public Protector knew that you had a matric certificate?
Mr Pillay: Yes, that’s true.
Adv Bawa: In 235 of the judgment, the contentions in Adv Mkhwebane’s affidavit and the submissions made on behalf of the Public Protector was that the Public Protector had made no finding that you had no matric and that you had not provided the information about your qualifications, when you were asked to do so. In fact, paragraph 235 of the judgment, which one will see is also in your affidavit.
Mr Pillay: Yes, I have it. Do you want me to read it?
Adv Bawa: Yes please, Mr Pillay. Just to confirm it.
Mr Pillay: I confirm it. “The contention in the answering affidavit and submissions made on behalf of the Public Protector that the Public Protector made no finding that Mr Pillay “had no matric” and that Mr Pillay did not provide the information about his qualifications when he was asked to do so, is disingenuous. Firstly, the “conclusion” that Mr Pillay had no degree and no matric was central to the Public Protector’s finding that Mr Pillay was not qualified to be appointed as the Deputy Commissioner of SARS. Secondly, it is an indisputable fact that Mr Pillay made a full and accurate disclosure of the extent of his academic qualifications as at the time when he first joined SARS when he testified under oath to the Public Protector on 24 March 2019. Thirdly, in the subpoena which was delivered to Mr Pillay by the Public Protector on 10 April 2019, Mr Pillay was called upon to respond to 12 complaints. Notably Mr Pillay was not required in the subpoena to deal with or to provide any information whatsoever on his qualifications. Then the last paragraph 236 says: "Accordingly, at the time of the Report, the Public Protector well knew that Mr Pillay has a matric certificate. Her conclusion in the Report that Mr Pillay does not hold even that basic qualification, notwithstanding the fact that on 25 March 2019 she accepted that this was a matter of public record and was within her knowledge, is astounding. In doing this she has manifested clear bias against Mr Pillay and material irrationality in arriving at her findings. In her answering affidavit, the Public Protector has put up no evidence supporting her findings in this regard. We submit that this further demonstrates that the Public Protector closed her mind and adopted a process of irrational reasoning."Thank you.
Adv Bawa: Mr Pillay, to your recollection, did you have a meeting with Adv Mkhwebane at which your qualifications were discussed?
Mr Pillay: Yes, I do recall the meeting.
Adv Bawa: And did you confirm with her that you had passed matric as your highest qualification?
Mr Pillay: Yes, I did.
Adv Bawa: The court concluded that there was no requirement: that only a holder of a degree could be appointed as a Deputy Commissioner of SARS or hold an acting appointment as a Commissioner?
Mr Pillay: Yes, at that time.
Adv Bawa: Would you have regarded that to be the end of the matter?
Mr Pillay: Yes, I would have regarded it as the end of the matter.
Adv Bawa: I’m sorry, I'm phrasing it badly. The matter, despite the court's findings, went through several courts of appeal and is still pending?
Mr Pillay: There was a judgment but the matter is still pending.
Adv Bawa: Now, in respect of that issue, you say in paragraph 10 of the affidavit that you have been embroiled in endless litigation with the Public Protector for several years now. Have you recently… having obtained finality in the judgment from the Constitutional Court, have your attorneys prepared bills of costs?
Mr Pillay: I spoke to them last night. They are preparing documentation and they indicated to me it is in the region of about R4 million.
Adv Bawa: And those are the untaxed bills of costs, correct?
Mr Pillay: Correct.
Adv Bawa: And those are the costs that would still have to be recovered from… in relation to the court orders that have been issued?
Mr Pillay: Yes.
Adv Bawa: You accept that would be deducted from any cost orders that had been made against you in the proceedings in relation to the interlocutory matters?
Mr Pillay: Yes.
Adv Bawa: Now in the context of the report in the OIGI matter, you had pertinently raised this in the affidavit that you had filed in the proceedings before the High Court. Isn't that correct?
Mr Pillay: It is correct.
Adv Bawa: I’m sorry, Mr Pillay, I’m just trying to find the reference to make it easier.
Chairperson: We will, at this point, take a 15 minute tea break. We will be back at 11. Thank you.
Chairperson: Mr Pillay are you there?
Mr Pillay: Yes, I’m here, Chairperson.
Chairperson: Before I proceed to Adv Bawa, at some point, you have mistakenly referred to me as ‘Comrade Chair’. I am the Chairperson of the Committee, not the Comrade Chair. To prevent it from being repeated. Adv Bawa.
Adv Bawa: Sorry. Mr Pillay, let me take you back to your certificate so that we can be clear. Having taken you generally through the evidence so that the Committee can see it. You deposed to an affidavit on 25 September 2019. This is the affidavit to which Mr van Loggerenberg’s affidavit was attached, Bundle D 2.4. We'll show it on the screen so that you can see it. This was after you had intervened in the main application in respect of Minister Gordhan’s complaint that the Public Protector had failed to deliver a complete Rule 53 record and you detail the documentation not provided. In paragraph six of this affidavit….We’re just trying to put it on the screen.
Chairperson: Are we there?
Adv Bawa: I don't want to put Mr Pillay at a disadvantage if he doesn't have the documentation with him, when I ask him something. Okay. So, if we go to paragraph five of the affidavit we'll see that you detail that the Rule 53 record had been filed and that Minister Gordhan had delivered a notice in terms of rule 30(a)(1), complaining that the Public Protector had failed to deliver a complete record and detail the documents that have not been provided, correct?
Mr Pillay: Yes indeed it is so.
Adv Bawa: In paragraph 6, you then say that the Public Protector had delivered a supplementary record to the register and that Minister Gordhan remained dissatisfied with the record that had been provided thus far; and that you became aware of the existence of the supplementary record on 20 September 2019, when you obtained the copy thereof, correct?
Mr Pillay: Correct.
Adv Bawa: You then considered the record had been delivered, and in paragraph nine, you say you exercise your entitlement to supplement your affidavit. Pointing out three issues essentially: 1. “Public Protector had failed to have any regard whatsoever to the detailed information that had been provided to her office in 2014, material to her investigation.” 2. “They had failed to consider the evidence provided from Mr van Loggerenberg, that was material to her evidence because that didn't form part of the supplementary record.” 3. “The gratuitous…”, what you cast as the “gratuitous slur upon you, by the Public Protector”, where you indicate that she maliciously concluded that you did not possess a matric certificate. Correct?
Mr Pillay: Correct.
Adv Bawa: Fine. If I take you to page 1180, you return to the third issue where you say that you had dealt with the Public Protector’s false claim that you didn't even possess a matric certificate. You obtained a transcript of the evidence that you had provided under oath to the Public Protector in the course of her investigation into the retirement matter. That being the matter, which was the subject that we had discussed early on. Correct, Mr Pillay?
Mr Pillay: Yes, that’s correct.
Adv Bawa: You annexed a full copy of the transcript to the affidavit. But in paragraph 17, you deal with the extract of the transcript. Could you just take us through that? Can you maybe put it into context? You were asked to come and meet with the Public Protector?
Mr Pillay: Yes, I was there with my legal team. This transcript says:
Busisiwe Mkhwebane: “He will get, yes, because he was over 55. Okay, so plus the salary plus allowance, call it that. Yes. I think before you come in, it was a follow up on the requirements when you joined SARS in 1990. Or when you were promoted. I mean, you were a member of the executive, what qualifications do you have?
Then I speak:
Mr Ivan Pillay: “I was wondering when you would get there. I have matric. I passed matric in 1970. Near… Indian High School”.
The response from the Public Protector is inaudible, but I say “Yes''.
Adv Bawa: Then further down, if you go to the next page, on the fourth line, the Public Protector repeats that?
Mr Pillay: Yeah:
Busisiwe Mkhwebane: “So you had a matric in 1990, in fact, when you joined…”
Then I said: “I had matric in 1970”. Then the Public Protector says ”I know, but when you joined, that was the highest qualification you had. I say “Yes”.
Adv Bawa: Right, and you point out that although the transcriber attributed the comments to Bernard Hotz, it was actually your advocate, Lawrence Hodes, that had made the comments, correct?
Mr Pillay: Correct.
Adv Bawa: One further aspect… I want to take you to the issue of the Inspector-General Report.
Mr Pillay: Yes.
Adv Bawa: The court raised this in the judgment… I think it’s paragraph 100, if we go back to the judgment. The complaint was, if you may recall, Mr Pillay, was that you had not been afforded a… The judgment record states that the report relied on by the Public Protector is a report that originated from the Office of the Inspector-General of Intelligence, that had been issued in October 2014. The Public Protector then states in – and this is a reference to her report – that she was “Reliably informed that it was in the custody of the former Minister of State Security, from whom she tried to get a declassified copy of the report without success.” She indicated that she had “requested the President's assistance in making available the declassified report by the Minister of State Security but to no avail.” Then go down, “The Public Protector relies on this report, despite explicitly stating that she had not seen the report. She then relies on it because she has it on good authority that it was found in the report.” The Public Protector in paragraph 14 then further recites the remedial action, namely that “criminal charges be investigated against Minister Gordhan, Mr Pillay and Mr van Loggerenberg and a certain Mr Richer, for the establishment and the involvement in the Intelligence Unit in SARS.” And paragraph 15 records that “despite this, the Public Protector, according to the report, had never seen or verified the contents and findings of the OIGI report. She ordered the Minister of State Security to implement within 90 days of the issuing of the report, acting in line with the Act to implement it in its totality.” If we then go further down in paragraph 117, the court said: “Had the Public Protector, however, applied her mind to the OIGI report and “not relied on good authority” she would have appreciated the shortcomings of the OIGI report and in turn would not have issued the impugned remedial action. Had she applied her mind she would have realized two important aspects: (i) the Inspector General acted ultra vires in investigating SARS’ officials and activities, and (ii) Mr Pillay and Minister Gordhan were not afforded a hearing as the audi alteram partem principle was not adhered to before coming to her findings."
Mr Pillay: Correct.
Adv Bawa: Correct? So you had not been afforded a hearing in respect of the Office of the Inspector-General of Intelligence (OIGI) report or the findings thereof. Would that be correct?
Mr Pillay: Yes, in two respects: firstly, when the Inspector-General (IG) was doing the so-called investigation, I was not interviewed for that investigation. She came to SARS; we had a meeting and it was a meeting that discussed the way in which we would participate. But I was not called to the IG to make any submission. So I think that's the one issue. The second issue is that the Public Protector went into these matters but we didn't have the report. It's in two respects that we didn't have audi. Thank you.
Adv Bawa: And was a copy of the report provided as part of the Rule 53 record being one of the documents which was relied upon for purposes of the compilation of the report?
Mr Pillay: No, I don't think so.
Adv Bawa: You further… I want to take you to another affidavit where you had dealt with this issue, which is part of the affidavit in relation to Part A, ‘Relief’, which is at 1367 of the volumes 1 to 12 bundle in respect of case 48521. This was one of the affidavits that was filed in opposing, in seeking the interim relief, correct?
Mr Pillay: Correct.
Adv Bawa: It starts at the top of paragraph 31, so we can put it in context: ‘The case for an urgent interdict.’ “I have read and considered Minister Gordhan submissions regarding the case for an urgent interdict. I am in respectful agreement with what he sees in this regard.” Then it goes down, “I wish to add the following…” You then deal with the remedy that has been sought in respect of the National Director of Public Prosecutions as being “An intrusion on their powers”. In paragraph 32.2 you deal with the demand made to the Commissioner for the South African Police Service to investigate matters. In paragraph 32.3 you deal with the demand made on the Minister of State Security to implement, in totality, the OIGI report dated 31 October 2014. You say “it's astonishing”, stating further that “you wish to draw the court's attention to a series of letters that pass between the attorneys acting for you and Mr van Loggerenberg and the Inspector-General, regarding the report that the Public Protector appears to have insight into, but rather coyly denies having possession of". Do you see that, Mr Pillay?
Mr Pillay: Yes, I do.
Adv Bawa: “If such a report does exist, her possession or use of it will clearly constitute criminal conduct on the part of Adv Mkhwebane, who as a former State Security Agency operative remains bound by National Security and Intelligence legislation.” You then annex several letters, which you summarise in the following paragraphs. These letters are the correspondence which ensued between yourself and Mr van Loggerenberg on the one end, and the IGI Office on the other, correct?
Mr Pillay: Correct.
Adv Bawa: Right. Then you say “there's been ongoing engagement between myself and others in the OIGI, which brings into question a. the existence of the alleged report and investigation, b. the alleged content of any such report and c. any ability to rely on such a report, since no one allegedly implicated and been afforded a hearing or any right of reply.” None of these issues have been resolved or concluded yet?
Mr Pillay: Yes.
Adv Bawa: At that stage were you not yet clear as to whether the report actually existed?
Mr Pillay: No, we were not clear.
Adv Bawa: Okay. “The IGI then admits having no mandate over SARS, which invalidates any findings and recommendations that may have been made in the OIGI report against SARS, me and other SARS officials.” Mr Pillay, we've already had evidence from Mr van Loggerenberg that the report had been reviewed and set aside but that wasn't the case at the time, you had deposed to this affidavit. Correct?
Mr Pillay: Correct.
Adv Bawa: You find that the remedial action demanded by the Public Protector in this regard is irrational?
Mr Pillay: Yes.
Adv Bawa: The Public Protector responds to this affidavit… we see that’s an affidavit made by the Public Protector, deposed within her personal knowledge of the law and advice of her lawyers. “I have addressed allegations made in the applicant's affidavit which are largely repeated in the Eighth Respondent's affidavit where I deal with Part B of the application to the prayer for the review and setting aside of my report”. You deal specifically with paragraph 32, which we had just dealt with. Go down to the response at paragraph 32.3. Okay, so it starts at paragraph 32. Paragraph 32.3 says, “the allegations relating to the…” which we just read out, including the phrase, “She coyly denies being in possession of this report.” She says, “Similarly, my findings on the conduct of the applicant justifies a directive that the Fifth respondent (Minister of Safety and Security) implements the OIGI report. It is the Minister of State Security who may request from me the details that appear to trouble Minister Gordhan and Pillay on whether I'm in possession of the Office of the Inspector-General of Intelligence report. Mr Pillay has no lawful basis to ask me to confirm whether I'm in lawful possession of a document in the control of the State Security Agency.” Then she says, “the allegation that I'm a former State Security operative deserves no answer other than that. He does not form a legal basis on which an interdict should be granted.” Do you see that was the exchange and the answer to your request for an indication as to whether Adv Mkhwebane was in possession of a copy of the report? Correct?
Mr Pillay: Correct.
Adv Bawa. Right. If we go further… at some point in these proceedings, the Minister of Intelligence intervened. Do you recall that?
Mr Pillay: Yes, I do.
Adv Bawa: And deposed to affidavits in these proceedings. Do you recall that Mr Pillay?
Mr Pillay: Yes. Yes, I do.
Adv Bawa: She first filed an explanatory affidavit in this matter. Then she filed a replying affidavit, which… Sorry, Chair, please give us a minute.
Adv Mpofu: Chairperson?
Chairperson: Yes, Adv Mpofu?
Adv Mpofu: Sorry to disturb, I just wanted the page reference of the affidavit that has just been read now from Adv Bawa. Thank you.
Adv Bawa: Of the one we’re going to, or the…
Adv Mpofu: The one we're busy with now on IGI.
Adv Bawa: I’ll do that for you now, Adv Mpofu. The one I'm going to is in volume 48 of the proceedings in the SARS Unit matter and so I'm…
Adv Mpofu: Okay, thanks. Thank you, Chairperson.
Adv Bawa: Essentially what transpired is in our endeavour to show it to you, it's now been kicked off my computer, so let me see if I can get it.
Chairperson: Are we winning? It’s a long pause.
Adv Bawa: Let me sketch the background, while we endeavour to see if we can sort this out. I'll give Adv Mpofu the references as we go along. The Minister of Intelligence intervenes in the proceedings to interdict the release, publication and/or public access of the Inspector-General report and she does an explanatory affidavit asking for the references to the report to be struck out in this. What I wanted to take you to, were the two affidavits filed by the Minister in these proceedings, and she says, “I'm the Minister of State Security.” I'm not going to read it verbatim… but Mr Mpofu, the case reference is 0015047 and on our records it would be page 4235 of the bundle volumes 38 to 48, in Bundle E of the case records, number 7. Right. What the Minister in her affidavit says is effectively that “she submits this affidavit at the late stage of the proceedings. Not to oppose the relief sought by the applicant in the intervention application, but simply to interdict the publication of the report and to strike out the references thereto in one of the founding affidavits of the intervening party.” Then she gives details of how the report was commissioned, that “it was classified secret in accordance with the National CyberSecurity Policy Framework, known as NCPF, adopted by Cabinet and that accordingly, the information contained therein is classified in accordance with chapter two of the NCPF since the information may be used by malicious/opposing/hostile elements to disrupt the collective and functions of an institute and or the state. And the restrictions applicable to classified information set out in the NCPF therefore apply to the report.” She then in the affidavit sets out the relevant legislative framework and the provisions which apply and the reasons she seeks the order for the report not to lose its classification, and points out in paragraph 12 that “the public disclosure of classified information in the report would violate the rights of persons associated with the SSA, potentially disrupting the SSA’s operations and impairing its intelligence gathering methods and threatening its operational cooperation with domestic institutions, particularly those mentioned in the report.” She says, “This document does not lose its classification merely because it's been disclosed in the public domain.” And paragraph 14 she says, “both the first and second respondents and intervening parties are well aware of this provision of law. They have sought to request the declassification and/or the declassified document. The Public Protector has given us 14 days to declassify the report and avail it to our office. The intervening party has requested a declassified report and the request dated 18 July 2019, attached as AD 1” If one goes to AD 1, it shows a letter from… a response to Werkmans Attorneys. Were Werksmans Attorneys at that stage acting for you and Mr van Loggerenberg or just Mr van Loggerenberg, Mr Pillay?
Mr Pillay: For both of us.
Adv Bawa: Right. She then further, in her explanatory affidavit, states “the report has not been declassified, the intervening party has not advanced any public or private good that will be served by public disclosure as against the personal danger to which the SSA operative concerned and the activities will be placed.” That affidavit was dated 22 July 2019. “The Eighth Respondent'', which is yourself then… Oh, sorry… in the course of those proceedings, the Minister then files a replying affidavit to the… answering affidavit, filed by the Public Protector Adv Mkhwebane, which was dated 20th July 2020. And says the following in that affidavit… and for reference purposes Mr Mpofu, It's located at 001507 case lines, on page 4266 of the same bundle, to which I have referred earlier. It says therein and I'm not going to read everything, but effectively, she responds to Adv Mkhwebane’s affidavit and says, “The first and second respondent in paragraph three misconceived the basis on which I support the relief sought by the applicant. Insofar as he seeks to review and set aside the first respondent's remedial action imposed on me further, the first and second respondents misconstrue the nature of the interlocutory application heard before Mnqibisa-Thusi, J and the reasons why I've conceded to the order in the van Loggerenberg review application”. Mr Pillay, the Minister, didn't oppose the application brought by Mr van Loggerenberg to have the report reviewed and set aside, correct?
Mr Pillay: Correct.
Adv Bawa: The Minister then says, “It also bears mention that the second respondent is repetitive in our answering affidavit in an attempt to reinforce her above-mentioned misplaced position and I've been given no choice but to reiterate our position, which is that the first respondent's remedial action is incompetent in law and incapable of being implemented. The latter position remains accurate notwithstanding the subsequent consent order in the van Loggerenberg review application.” Then she turns to deal with specific allegations. She denies that… And the first and second respondent is the Public Protector and Adv Mkhwebane in these papers. Is that not so, Mr Pillay?
Mr Pillay: Correct.
Adv Bawa: She then says, “save to deny that all the first and second respondents' submissions of a legal nature are entirely correct. I take note of the allegations contained.” I'm going to take you to paragraph six in our affidavit and I apologise, Mr Pillay… She initially responds to an averment that she had struck a deal with Mr van Loggerenberg to set aside the report and says that “what is perplexing about the assertion is that the first and second respondents consciously disregarded the role of the Inspector-General of Intelligence (IGI) who incidentally is the author of the IGI report.” She then explains how the engagement came about with the IGI for purposes of… so let's go down to paragraph 6.2: “The attorneys of record for IGI and attorneys of record for Mr van Loggerenberg had independently started engaging on the possibility of a consent order and at that moment she was still engaged with the legal representatives on the lawfulness of the status of the report.” She goes on and she says, “The IGI had expressed the view that they would not oppose the relief due to the inherent flawed processes in the 2014 investigation.” Then goes further and says, “She applied her mind after receiving counsel's advice, and she agreed to the consent order. There was no relief sought against her in the review application.” Then further down she points out that, “she had supported the relief by the applicants insofar as they sought to review and set aside the first respondent's remedial action imposed on me. It was not filed solely to proffer an explanation pertaining to the manner in which the consent order reviewing and setting aside the IGI was obtained.” Paragraph 7.2 says, “Second, the facts pertaining to the defunct IGI report, as well as its subsequent review by Mr van Loggerenberg, had to be disclosed to the above honourable court. Third, the settlement and/or consent order was not initiated or instigated by me”. She then says in paragraph nine, “The allegations in paragraph 9.2 to the effect that my conduct in consenting to the review and setting-aside of the IGI report is inexplicable because the IGI report is the subject of pending judgment, before Madame Justice, is misplaced, the interlocutory application is only concerned with an introductory relief aimed at amongst others, interdicting publication of the State Security agents.” And she didn't entertain the merits of the IGI report. Then she goes on and she says, “It was on this basis that I made available the redacted report to all the parties who were present inclusive of the first and second respondents during the proceedings of the interlocutory application.” And goes on in 9.5, saying, “It has never my intention to defend the IGI report, but rather to protect the identity of the State Security agents whose names were contained in the unredacted report. Hence, the redacted declassified IGI report was ultimately made available. I pause to point out that this in fact was what the first respondent had requested of me.” And so Mr Pillay during these proceedings, the parties received a redacted declassified IGI report, correct?
Mr Pillay: Correct.
Adv Bawa: Right. Now, this matter has since been taken on appeal and we've already dealt with the fact that it's pending before the Constitutional Court. Correct?
Mr Pillay: Correct.
Adv Bawa: And in the proceedings before the Constitutional Court, does the Public Protector persist in seeking to have the findings in total, in relation to the review and setting-aside of her report, be considered by the Constitutional Court? I'm sorry, Mr Pillay, that came out extremely clumsy. Let me rephrase that; leave is being sought by the Public Protector from the Constitutional Court, correct?
Mr Pillay: Correct.
Adv Bawa: That is against the whole of the judgment and order that is handed down by the High Court and in respect of which leave was refused by the Supreme Court and in which the reconsideration was refused by the President of the Supreme Court, correct?
Mr Pillay: Correct.
Adv Bawa: In seeking to have that relief… there is no qualification in the relief sought of any abandonment, in respect of the remedies relating to the IGI report, correct?
Mr Pillay: Correct, but my understanding is that it's a request to the Constitutional Court for leave to appeal.
Adv Bawa: That's correct. But leave to appeal against all the findings?
Mr Pillay: Yes. Yes, indeed.
Adv Bawa: And while this acknowledgement before the Constitutional Court in the affidavit that the OIG report has been set aside before a court of law; there is no acknowledgement that the remedy sought in respect of the OIG report is also now defunct, as such. Would that be correct?
Mr Pillay: It is so.
Adv Bawa: Mr Pillay, is there anything else that you would like to say to the Committee?
Mr Pillay: Just one or two small points on the IGI report. The IGI investigation began or was prompted by an article in the City Press on 10 August 2014. I'm just going to read the first paragraph, it says, “A City Press investigation has revealed the existence of a Special Operations Unit of the SSA, where rogue agents use state resources to conduct dirty trick campaigns, smuggle cigarettes and disgrace top civil servants”. It is following such an article on the 10 August that the then Minister of Intelligence asked for that investigation, of which the terms of reference were around what was in the City Press article, when in the end, the investigation actually focused on SARS.
Adv Bawa: Your point being that…
Chairperson: Just pause, I see a hand. Adv Mpofu?
Adv Mpofu: Yes Chair. I wanted to check if this document that's being read now is part of the documents. Adv Bawa?
Adv Bawa: I'm not sure whether… Mr Pillay, what are you… are you reading a document?
Mr Pillay: Through you, Mr Chair. I'm reading from a press cutting, which is not part of my affidavit. But it's City Press and I've given you the date; it's 10 August 2014.
Adv Mpofu: Chair?
Adv Mpofu: Yeah, it’s not a problem. Mr Pillay, you can send it to Ms Bawa, and it will be made to form the record.
Chairperson: Thank you.
Adv Bawa: In fact, if you see, Mr Mpofu, at page 3469 – which we were at – it says that the Minister of State Security requested the Inspector-General to conduct an investigation into media allegations. I didn't understand that to be in dispute?
Adv Mpofu: No, it’s not in dispute, I just want to read what is being read by the witness and I’m sure the Hon Members would also like to.
Chairperson: Yeah. Thank you, Adv Mpofu. Can that be shared?
Adv Bawa: I’m sure we’ll be able to find it on the internet. Sorry Mr Pillay, you were interrupted.
Mr Pillay: I think, through you Chair, that's the one point that I wanted to make.
Chairperson: Thank you. Adv Bawa?
Adv Bawa: I have no further questions.
Chairperson: Thank you, Adv Bawa. I now proceed. You have saved eight minutes of your time, which I will give to Adv Mpofu. Adv Mpofu, I recognise you for cross-examination.
Cross-examination of Mr Pillay
Adv Mpofu: Thank you, Chairperson; and thank you for the eight minutes. Good morning, Mr Pillay. You are muted, Mr Pillay.
Mr Pillay: Good morning.
Adv Mpofu: Thank you. You can call me Comrade.
Mr Pillay: I will.
Adv Mpofu: Thank you. Let's just start with this IGI story, since you ended on it and so that you don't have to come back to it. You have traced it to 10 August 2014, City Press. Then the Minister investigated [the matter]. Is it correct that shortly after, you appointed the Sikhakhane panel?
Mr Pillay: Correct.
Adv Mpofu: Pardon?
Mr Pillay: Through you, Chair, correct.
Adv Mpofu: That would be when? Round about September of the same year?
Mr Pillay: Yes, I'll get the exact date for you, but it’s September of the same year.
Adv Mpofu: Yes, 2014. Okay. That was to investigate the conduct of Mr van Loggerenberg?
Mr Pillay: Yes, it is so.
Adv Mpofu: That panel was made up of three advocates: Adv Sikhakhane, leading the team; Adv Nasreen Rajab-Budlender and Adv Ramano, correct?
Mr Pillay: Correct.
Adv Mpofu: And in a nutshell, they found that the activities of the Rogue Unit were unlawful, the so-called rogue unit, sorry, were unlawful?
Mr Pillay: Yes, that's what they found.
Adv Mpofu: Yes. The IGI had also found… actually it was stronger than the Sikhakhane report. It had found that the activities of the so-called Rogue Unit were criminal, correct?
Mr Pillay: I believe it said so.
Adv Mpofu: Yes, and in fact, it recommended that you, Mr van Loggerenberg and Mr Gordhan be charged criminally?
Mr Pillay: I believe it said so.
Adv Mpofu: Right. You were indeed charged criminally, when?
Mr Pillay: I can’t remember.
Adv Mpofu: Okay, neither can I. I think it was around 2016, 2017?
Mr Pillay: Could be.
Adv Mpofu: Okay, fine. We’ll find it. Who were the accused: It was you, Mr van Loggerenberg and who?
Mr Pillay: Andries Janse van Rensburg.
Adv Mpofu: And Mr Van Rensburg?
Mr Pillay: Yes.
Adv Mpofu: And what were the charges?
Mr Pillay: I can't remember the specific charges but it is that allegedly we set up an unlawful unit and we carried out unlawful activities.
Adv Mpofu: Yes. Okay, no that’s fine. We'll come back to that, but just for the sake of completion, so that means then the NPA also found that there was at least a prima facie case of criminality?
Mr Pillay: Chair, I can’t see…
Adv Mpofu: Oh, I’m here but I just switched off the video for a short while, as I am fiddling with papers here.
Mr Pillay: Yes, this was during the time that the NPA was led by Adv Shaun Abrahams. They believed that there was a case.
Adv Mpofu: Yes. Okay, so that was the third agency that believed that you had done something wrong to various degrees. Sikhakhane said the activities of the so-called Rogue Unit are unlawful; the IGI said it required criminal investigation; and the NPA found sufficient evidence of criminality. But then in addition to that, is it also correct that KPMG also found the Unit to be unlawful?
Mr Pillay: Let me first say that all of the things you are talking about have been disputed, and in fact, are really of no value. KPMG withdrew its conclusions. KPMG claimed that it did a documentary analysis only. KPMG said that it can, to the extent, that there's anything in the report that pertains to discussions about the law, et cetera, or interpretation of the law – they are not qualified to do that. And KPMG withdrew its conclusion. I think one of the judgments that we're dealing with actually says KPMG is wrong in fact and in law.
Adv Mpofu: Yeah, no. We'll get there Mr Pillay. I'm just…. Remember that all of this… Then the IGI was reviewed and set aside and all that. I’m just talking about at the time. Just work with me here? So we will get to what then became of those findings, but I’m simply saying to you that the fourth independent agency, at the time, had found the unit to be unlawful, was KPMG, correct?
Mr Pillay: Well, I would question the word ‘independent’.
Adv Mpofu: Okay, let’s say external.
Mr Pillay: Can I make the point that all of these institutions or bodies were connected to each other in some way…
Adv Mpofu: Including the one… I’m sorry Mr Pillay.
Mr Pillay: In advancing the same narrative.
Adv Mpofu: Yes, including the one that you appointed.
Mr Pillay: Indeed.
Adv Mpofu: So why did you appoint people… Sorry? Carry on.
Mr Pillay: I appointed Adv Sikhakhane to investigate allegations around Johan van Loggerenberg, and that was the terms of reference. And if I understand it now it was a fact-finding request. But what actually happened is that Adv Sikhakhane decided to change the terms of reference on his own and it actually coincides with the Sunday Times barrage of reports. It coincides with the appointment of the new Commissioner of SARS. My understanding is that the Sikhakhane report is an opinion. I responded in a critique of that document, a 32-page critique, which the then Commissioner of SARS refused to read. The critique is there and I made it available to the Public Protector also. And we were told by legal counsel that there's no point in trying to set aside that report because it's just an opinion.
Adv Mpofu: Yes, I understand that. Do you accept the judgments that you've been reading are also opinions?
Mr Pillay: No, I don't accept that. Look, I am not a lawyer, actually, I'm not a qualified person. I can't argue from a legal point of these things; but for me, my understanding of the judgment is that it is final and if there are issues with any of the judgments, they must be dealt with within the judiciary process: that is my view. It cannot be a mere opinion. That does not mean that a judgment cannot contextualise et cetera; for sure all of that can be done but I regard it as binding between myself and the Public Protector.
Adv Mpofu: I see. So you regard it as binding, even if it is still going to be finalised by the Constitutional Court?
Mr Pillay: My understanding and as I understand the interaction between you and one of the other persons that provided evidence, is that the judgment stands until the judgment is set aside. And my understanding here is that there is an application for leave to appeal. If the leave is granted, then an appeal would be made, and then there might be a judgment. That's two or four. Until then the present judgment stands.
Adv Mpofu: Okay. Alright. You’re wrong about that. The application for leave to appeal is what suspends the judgment. But as I say, we don't want to get into legalities. Your opinion is that the judgment irrespective of the fact that it might be reversed: its final… or whatever. Am I capturing your understanding correctly?
Mr Pillay: What I'm saying is that the first matter is final, which is the matter around the pension issue and my reemployment; that is the way I understand it. The second matter, there is a judgment and leave to appeal was refused. The matter went all up the chain and the matter is now before the Constitutional Court for leave to appeal. So what we do have now is a binding judgment until that is set aside.
Adv Mpofu: Alright, fine. I won’t bore you with the legalities, let me just say that's a wrong understanding of the situation. And you're saying you don't know that a judgment, even if it has been… Even the one where there has been final judgment of the Constitutional Court, that it constitutes an opinion?
Mr Pillay: No, well, for me, as I say, I'm not a lawyer. I've always regarded that there are three arms, three spheres of government and independent spheres of government. These matters were decided in court, and that's where they stand. That's my view. It may not be the right view, the correct view, but I don't pretend to be a lawyer on the matter.
Adv Mpofu: No, no, it’s fine. I promise you, that’s not what I’m doing .I'm just surprised because this is a judgment that is about you. This whole thing, the one that you've been reading copiously here. Can we go to the judgment of Gordhan, Magashula, Pillay v Office of the Public Protector? It’s the one that Mr Pillay was reading out.
Chairperson: We’re looking for it, Adv Mpofu. We’ll flight it immediately.
Adv Mpofu: Thank you. When we find it, please go to paragraph 95.
Adv Mpofu: Yes. Anyway… While we’re waiting, Mr Pillay, do you remember that both you and Mr Gordhan were trying to do what some of the Members… what this Committee does, which is to rely directly on court judgments, in order to get personal costs against the Public Protector. You remember that?
Mr Pillay: Yes.
Adv Mpofu: And the court rejected your attempt to get personal costs against the Public Protector, correct?
Mr Pillay: On that occasion.
Adv Mpofu: Yes, we’re talking about that occasion. And one of the grounds was what you and I are debating now. Correct? You might not remember, okay. Maybe you just read the part that you asked to read. But if you read the whole judgment… can you go to paragraph 91.
Chairperson: Okay, we’ll go there
Adv Mpofu: Paragraph 90.
Chairperson: You keep changing. Okay we’ll go with you as you change. We’re there.
Adv Mpofu: We’ll go to 80 now: I'm just joking. Okay, I'll read it out, to make it fast. If you don’t mind, Mr Pillay?
Mr Pillay: Through you, Chair, it’s fine.
Adv Mpofu: Okay, firstly before I do that, you remember that you had fully associated yourself with the allegations made by Minister Gordan in the relevant questions, including asking for personal costs, correct?
Mr Pillay: Correct.
Adv Mpofu: And for that, the court punished you with the punitive costs on the attorney and client scale, correct?
Mr Pillay: Correct.
Adv Mpofu: Okay. Also because you had made gratuitous insults against the Public Protector, correct?
Mr Pillay: I think you must point that out to me.
Adv Mpofu: Okay. I'll do that. Okay, let's start with this one, in paragraph 90, it says, “In paragraph 53 to 55 of the founding affidavit, Minister Gordhan, which you associated yourself with, directly quotes portions of judgments where adverse findings were made in respect of the Public Protector. I do not intend to quote them here, as they are succinctly set out in Mr Gordhan's founding affidavit. It is alleged that those paragraphs specifically referenced instances of repeated admonishments that the Public Protector received from the courts to comply with the Constitution and the Public Protector Act, and where she was mulcted with personal costs as a result of her failure.” In paragraph 91, “Relying in National Director of Public Prosecutions,” that's a case in the Supreme Court of Appeal “the Public Protector in her heads of argument, submits that the allegations relating to other court cases ought to be struck out as irrelevant as they constitute the opinions of other courts, the decision of which some are still pending.” The thing that you and I have just debated. “The applicants, on the other hand, submit that the judgments are directly relevant” as some in this Committee do “to this review and also have a bearing on the order of personal costs” and so on and so on. Then if you can go to 95 , it says: “The court in Institute for Accountability in Southern Africa” that's another case you presented to the Gauteng court, “when determining whether the Hollington rule applied in relation with the applicability of findings of previous court to subsequent civil proceedings held as follows: 'Ultimately the rationale for the Hollington rule is that the findings of the previous court constitute the opinions of that court and for that reason are irrelevant and inadmissible in subsequent civil proceedings. Even though such findings constitute expressions of opinion they cannot be equated with the opinions of ordinary individuals and cannot be treated as such. Those findings were made by judges and confirmed, in certain instances, by the justices of the highest court of the land. Judges have a duty to form and express opinions concerning issues raised before them' and so on. 'Those opinions are also binding on all persons and those organs of state to which they apply'. For all these reasons the impugned paragraphs must be struck out as irrelevant.” In other words, your attempt to get the court to rely on previous judgments was… Do you accept that your attempt to use previous judgments to rely on… in order to criticise the Public Protector were rejected by the court on the basis that those were opinions of those courts? Correct?
Mr Pillay: My understanding is that the court view was that it was not relevant to what was before the court.
Adv Mpofu: Yes, it was not relevant because it was the opinions of the court. Correct?
Mr Pillay: Through you Chair, I don’t want to get into a legal argument because as I said, I’m not a legal person. I thought the issue was just an opinion but not relevant.
Adv Mpofu: Yes. Believe me, Mr Pillay, I’m trying to simplify it as much as possible. I don’t expect you to know the law, but at least to have an ear to what I’m saying. I read out to you “The Public Protector submits that the allegations relating to other courts, ought to be struck out as irrelevant as they constitute the opinions of other courts”. So that is exactly the same point. They're not just irrelevant in the air. She was saying they are irrelevant as they constitute the opinions of the courts, the decisions of which some are still pending, and the court agreed with her, saying “For all these reasons, the impugned paragraphs must be struck out as irrelevant”, for those reasons. You don't need to be a lawyer. I'm reading it out for you.
Mr Pillay: It says the impugned paragraphs must be struck out as irrelevant.
Adv Mpofu: Yes, but the basis upon which they were said to be irrelevant was because they were opinions of other courts, including the Hollington rule, which I don't want to get into detail – the one that I just read out to you. The rule in Hollington is an English rule that says, ‘The judgment of another court is an opinion of that court, and therefore generally should not be held as relevant.’ That's just an aside. All I'm asking you, in your case, with the judgment that you seem to know very well, which is the ground that the Public Protector relied on, and that's the ground upon which the court found against you and even mulcted you with attorney and client costs, correct?
Mr Pillay: It's correct that the court found that the paragraphs that we depended on were not relevant and that the judgments were not relevant. And as I've said, I've regarded the judgments as binding between myself and the Public Protector. What the parliamentary committee does with that is up to the parliamentary committee.
Adv Mpofu: Okay, that's fine. I can live with that. You don't seem to want to….I won’t read it for the third time. It’s fine.
Mr Pillay: May I also point out, it says that these opinions are also binding on all persons and those organs of state to which they apply.
Adv Mpofu: Yes, that's the Gauteng case. You can point that out. But from what you've just now read, you accept that they're called opinions…‘Those opinions’, correct?
Mr Pillay: My understanding is that it is within the parameters of a court.
Adv Mpofu: Mr Pillay, please. Are they referred to as ‘Those opinions’? The thing that you just read, does it start with the words, “Those opinions”?
Mr Pillay: Let me put it this way, how can opinions be binding?
Adv Mpofu: Don’t ask me, you’re the one who just read it out.
Mr Pillay: No, what I'm saying is I've never used the word opinion in referring to court judgments. But I don't know enough. Ultimately it's up to the Evidence Leader, yourself and the Committee to discuss these things and see whether the judgments are relevant.
Adv Mpofu: Yes, that is true. But that was true about all the other paragraphs you are reading ad nauseam. I'm saying the clear reading of what you have quoted says that those are opinions of judges?
Mr Pillay: “Opinions that are binding on all persons in those organs of state to which they apply” – that is the full sentence.
Adv Mpofu: Yes Sir. But I read it out for you, but you’re just refusing to accept the first two words of the thing that you read yourself, but that’s fine. The point I’m simply making is that it is a rule of the law, which you should know not because you are a lawyer, but because it is an a judgment in respect of which you are punished with costs; that what you and Mr Gordhan were trying to do is not allowed, which is to rely on judgments of courts which are opinions as if they were fact. That's just what happened to you. You know, it's not about legal principles: it happened to you. You had to pay punitive costs for that – for making that mistake. Now it looks like you want to make it again. But the whole point of punitive costs is to teach you a lesson. Understand? Do you understand that?
Mr Pillay: I understand that, and I really think your client doesn't understand.
Adv Mpofu: You think my client doesn't understand that?
Mr Pillay: No.
Adv Mpofu: Okay. But that's the same client who raised this issue successfully against you and you were mounted with attorney and client costs. Which of the two persons do you think doesn't understand that rule: between you and her? The one who won or the one who lost that point?
Mr Pillay: Chair, I want to clarify the issues here. The Public Protector has also had costs awarded against her and we have had costs awarded against us. I believe we have learned from what happened to us. That's the point I'm trying to make.
Adv Mpofu: Okay. Yeah but on this specific point, the one that was being taught a lesson was you, by her, because she raised the issue, and you lost the issue. But that's fine. I just wanted to point out to you, and for the benefits of it. It looks like the lesson didn't land here. But that's what it is Mr Pillay: judgments of other courts are opinions of that court. And judgments that are pending, you're also wrong there, are suspended by the mere institution of an application for leave to appeal. So you’re wrong on both counts, but that's fine, let's move to something else. You also accept that the… Where were we? We said the IGI, KPMG, NPA, Sikhakhane… Number 5, the Kroon Panel also found that it was illegal – that the rogue unit was illegal. Correct?
Mr Pillay: They did not find that. They had endorsed the Sikhakhane panel report and they later said that they were wrong…
Adv Mpofu: That they were ‘sorry’.
Mr Pillay: Yes, and Judge Kroon went on to say that the panel statement was not thought through properly and was in fact incorrect.
Adv Mpofu: Yeah, you've said all that but at the time that was the fifth – let's do it bit by bit Mr Pillay – external body that found that the Rogue Unit was illegal, correct? Or at least that endorsed the view that it was illegal in this case, correct?
Mr Pillay: Yes, they did endorse the view.
Adv Mpofu: Yes. Then there was also the opinion of Adv Brassey SC, that pointed in the same direction so that… I just don't have it with me. Were you aware of the Brassey opinion?
Mr Pillay: Much later.
Adv Mpofu: Later, yes. Okay, so that's number six. There was another advocate that found the same thing… Another panel?
Mr Pillay: I'm not aware of that. I'm aware of Trengove… Counsel Trengove had given an opinion to SARS.
Adv Mpofu: Yes. Okay. He is an advocate. I think there was one more person, but I think that's enough. The point I think is made. So, as you testified, you said the Public Protector came at the tail end of this series of negative findings against the Rogue Unit. Correct?
Mr Pillay: Through you, Chair, correct.
Adv Mpofu: Thank you. She was aware, at the time, that… or rather, she was not aware, for example, that the IGI report would be set aside. So she was working on it at face value, correct?
Mr Pillay: Through you, Chair, I think that's one of the issues – is that all the assertions that have favoured a particular narrative were accepted without question. Without question, it was accepted as you say, at face value, and that is in my view, a problem.
Adv Mpofu: Yes. Now, okay. If you were the Public Protector or somebody else and you’re faced with seven or eight findings by different institutions, which are completely unrelated, would you accept that at the very least you should think that there is something there?
Mr Pillay: Chair, I must point out that the narrative was challenged and there were some reversals: the Sunday Times had withdrawn.
Adv Mpofu: Yeah. I didn’t even come to the Sunday Times. Yes, thanks for reminding me. That will be number 9.
Adv Bawa: Chair?
Mr Pillay: And that's an important one because Sikhakhane seemed to give some relevance to the Sunday Times reports.
Adv Mpofu: And number 10 would be City Press then, if we use that series?
Mr Pillay: Well, my understanding is the City Press report talks about a Rogue Unit in the SSA.
Chairperson: Just pause there, Mr Pillay and Adv Mpofu. I recognise Adv Bawa.
Adv Bawa: I just wanted clarification from Mr Mpofu, whether it's the Public Protector’s version based on multiplicity of reports or media reports of any kind – is she entitled to accept it at face value?
Chairperson: Did you get that Adv Mpofu?
Adv Mpofu: I got it but it's just disturbing me for no reason. I'm not under cross-examination here. Mr Pillay?
Adv Bawa: Sorry, I just want to ascertain what…
Adv Mpofu: No, we have many, many months for you to ascertain whatever you want to ascertain.
Chairperson: Adv Mpofu? Adv Mpofu?
Adv Mpofu: Yes?
Chairperson: Yeah, may I request… because when she was leading evidence, I allowed you an opportunity to get clarifications and even place certain things on record. I think that consistency is important. She is asking a definite question. I think it's proper that you respond to that and not just dismiss it.
Adv Mpofu: I'm never going to do that. I’m not going to answer her question. I've given the clarification that I'm busy with cross-examination. If she wants to understand anything, she'll understand it when we give a statement. Mr Pillay?
Chairperson: No, before you go to Mr Pillay. Not only her, but if there are going to Members here who are going to ask questions for clarification, I expect that there will be a response to that. If you're not able to answer, you will indicate that but I can never accept you saying you're never going to answer that. I don't think it helps this process.
Adv Mpofu: Well, Chairperson, you know very well I’ve been responding. If there's a reasonable question, I respond to it. But I'm not going to, in the middle of my cross-examination, be answering questions about versions and whatnot, from anybody. But if it's a question that is a clarification question, as you're saying, then, of course, we deal with them in the usual way. But I'm not going to right now tell you what the version of the Public Protector is, or is not, on a particular point. You are just allowing me to be abused.
Chairperson: No, I’m not.
Adv Mpofu: You are. You are, Chairperson.
Chairperson: I allowed you, during the leading of evidence…
Adv Mpofu: Chair, that was different.
Chairperson: I’m speaking Adv Mpofu.
Adv Mpofu: Ah, you see now.
Chairperson: I’m speaking.
Adv Mpofu: But I can’t allow my cross-examination to be…
Chairperson: Adv Mpofu – please switch off your mic, Hon Mileham – I am addressing you and I don’t expect you to be throwing hands, in the inquiry. I want you to pull back on what you are doing. All I’m indicating here is how this inquiry has been running and it’s going to continue doing that. I will never not allow the Evidence Leader, yourself or any Member here not to have an opportunity to intervene on a particular issue that they want clarity on, or want to ask a question. I am not going to change that. I'm asking you, because if the point you're making… It would be better if you had said maybe you're not ready to respond to this issue at this point, but you will respond with something else in terms of what evidence the Public Protector will place, but it's not helpful to just say, you're never going to do this. It doesn't help this process.
Adv Mpofu: But I’ve just said that Chair. I said exactly what you said. If you play the recording, I’ve said what you are advising me to do. So, thank you for your advice but I don’t need it because I’ve just done exactly that.
Chairperson: Okay, let's proceed. But I'm going to be watching that space. I need responses, when clarity is sought. Thank you.
Adv Mpofu: Yeah, as you know, for the past three weeks, I have given responses when proper clarity is sought but I'm not going to be forced to answer.
Chairperson: Just pause, before you proceed. Hon Nodada?
Mr B Nodada (DA): Thank you so much Chair, I just want to come in here as a concern, Chair. Chair, we're running a process here. There are directives. We requested that we all respect one another, when we do speak; I think the language used by Adv Mpofu is completely out of line. There can't be statements that are made that “I will never do this” and whatever the case may be. There are directives that guide us here. Let’s please calm down – respond to each other respectfully. What has been requested… It’s not the first time it's been requested. It's been done previously and it's been responded to by Adv Mpofu and the legal team of the Public Protector, on whether that's the version of the Public Protector or not. I don't see why we should be up in arms. Let's please just calm down. Respect this process, because it does apply to all of us and there are directives that guide us and not throw statements that can derail this process and make it be something that it's not. Thanks, Chair.
Adv Mpofu: Okay, Chairperson?
Chairperson: Thank you, Hon Nodada. As I allow you to proceed, Adv Mpofu. On this issue, it’s a simple response of yes or no. Are you ready to proceed?
Adv Mpofu: No, I’m never going to do that.
Adv Mpofu: I’m not going to respond to a question about versions when I'm busy with cross-examination. I will put my version when I put it. If you want to kick me out, you can kick me out. I'm never going to do that. Let me say it slowly: I am not going to do it.
Chairperson: Adv Mpofu, you’ve been doing it?
Adv Mpofu: When? Questions differ…
Chairperson: I want you to calm down. I want you to calm down. It's an important process that we're dealing with here. As a Chair, I do need that indication from you. There's no point in us just proceeding when we're not able to hear each other because then it defies the importance of this hearing. If you're saying, you would want to come back to that issue and give a response, I will allow you to do that. But I'm not going to accept an answer that says you're never going to do it.
Adv Mpofu: Okay, maybe that’s too broad. I'm never going to do it right now. I agree with you. I will do it when it's suitable to do it, sorry about that.
Chairperson: Okay, I will remind you about that.
Adv Mpofu: Mr Pillay, before that interruption, I think my question was – and I was trying to put it at the lowest level – that if you were in the shoes of the Public Protector, and you were faced with all these eight or nine, whatever number of views, that the so-called Rogue Unit was illegal, could you be possibly forgiven for thinking there must be something in this? I was putting it at that kind of level deliberately? Not saying you say, ‘well, it must be definitely… beyond doubt’ but just to think, for a reasonable person in her shoes, to think there must be something in this thing, if all these eight or so organisations that are different, have found it all to be illegal. Would you at least accept that, just at that level?
Mr Pillay: Chair, as I say, I'm not a lawyer. I know something about investigations. What I know is what we've always done, and I cannot speak for the Public Protector, what we have always done is before proceeding into an investigation: first, inquire into the allegations, understand the allegations, who's making the allegations, what is it about, is it vague, is it specific – the ‘who, what, here, when’. And to the extent that when we're looking at reports that are done, were people given the opportunity or were people heard, all of those things done properly? So that is not an investigation itself. That is to verify that the allegation is a serious allegation that needs to be dealt with? That is what I would do.
Adv Mpofu: Yes, I accept that Mr Pillay, I really do. Remember here, we're not really about scrutinising the ins and outs or the wherewithal of these eight or nine institutions. I'm asking you a very simple question. We're just gathered here to assess the conduct of the Public Protector, you understand that? You volunteered as a member of the public to assist in that process. Are we together?
Mr Pillay: Yeah.
Adv Mpofu: Yeah. Now, that's really our only business here. Now, I'm saying put yourself in her shoe, so that when the Hon Members have to assess her conduct, or otherwise, must be able to do the same thing. I’m saying, put yourself in her shoes: here you are doing an investigation with all the qualifications that you've correctly put. But, you know, we're all human. You know that there are eight or nine different agencies of varying degrees that have found that this thing is illegal. All I'm saying is that at a human level, are you entitled to say there must be something in this? If this one… this one and that… KPMG, Sikhakhane, appointed by Mr Pillay, the NPA, and so on. All of them without sitting in one meeting, find that this thing is illegal, there must be something in it. If you're not prepared to concede that much, you're not. But I'm just…that's what I'm putting to you.
Mr Pillay: Chair, let me answer this, firstly, by way of an analogy and then later, I will give you my view. When I was working in intelligence there were a number of reports from police crime intelligence, from the different divisions in National Intelligence, in general to say, there is conspiracy to overthrow the ANC government – that the people who are involved in this, is Pik Botha blah, blah, blah… It named a lot of people. All of these reports coming in… and Minister Nhlanhla at that stage said, look, this is very serious. All of these things are saying similar things. So at that stage, a committee was set up…a commission, but it's an internal commission. It was chaired by Adv Vusi Pikoli. I was fortunate to be chosen as a member of it, and we went into all of those things by doing the first level check – who said this, who was the source of the information, how was this obtained, et cetera, et cetera. The people who are making statements, were they cautioned, all of those things… we did all of the things. We found at the end of it that all of it arose from one policeman in the Free State. He was the source of all of this information. And he had Minister Nhlanhla and many other people running around for months on end. I remember that when we presented the final report, it started with saying, “One day in Bethlehem” because it was really Bethlehem – playing on the biblical references. I can tell you that the political principals were not happy with that answer. They really believed that there was a conspiracy.
Adv Mpofu: Yes. No, fair enough. That's exactly… No, we're together. I get your point, Mr Pillay, sorry to cut you. That’s exactly what I’m asking you. Those political principals that you are dealing with… the whole thing could have been just nonsense, but I'm saying those political principals could be forgiven for taking it seriously, simply because of the number of voices seemingly were unrelated saying the same thing. So you and I are making the same point?
Mr Pillay: No, no.
Adv Mpofu: So you're saying that they were crazy.
Mr Pillay: Through the Chair, I think it is easy for political principals to fall into that trap. Public servants, people in public administration, should not be falling into those traps. In fact, we are the ones who should be helping the politicians.
Adv Mpofu: I see. So they're not human beings, these public servants? If you are a public servant, and eight or nine people in the building say there's a fire because you are not a politician, you must dismiss them. What is that?
Mr Pillay: Through you Chair, that is not what I'm saying. The point we have made repeatedly is that the Public Protector has chosen uncritically to accept allegations about us. She has chosen to discard almost anything that we are saying. That's the point we are making.
Adv Mpofu: Alright, I'll move on. I don't think you understand what I'm saying. I'm talking about before she makes any finding, before all that. I’m saying that when she gets a complaint and part of the material before her is that there are eight or nine agencies from Limpopo and wherever… and Eastern Cape, who uncoordinated in some one gathering have found the same thing. Is she at a human level entitled or not to think there must be something in this? Because we're not starting from scratch, there are other people who have found this way. It's such a simple notion. But if you're not prepared to concede that, then that's fine. Let's move on.
Mr Pillay: Mr Chair, I just also want to point out there's a timeline, and I can't remember the timeline. But some of these things began to fall before and during the process the Public Protector was working on these things.
Adv Mpofu: They ‘fell’, what do you mean by that?
Mr Pillay: They were withdrawn. Some of these reports were withdrawn and the Public Protector took no account of that.
Adv Mpofu: Was the Sikhakhane [report] ever withdrawn?
Mr Pillay: Mr Chair, my understanding is that one could not go to court to set it aside. My understanding is that under the new Commissioner in SARS, they said they place no reliance on it.
Adv Mpofu: No, Mr Pillay. Please, we’ll never finish if you don’t listen to the question. Was the Sikhakhane report ever withdrawn? Yes or no?
Mr Pillay: My understanding is that it's an opinion. Yes. And SARS says that it sets no store by that opinion.
Adv Mpofu: Mr Pillay, I’m asking you for the last time. Let's assume it's an opinion or a work of fiction. I'm saying to you… Was the Sikhakhane report ever withdrawn? Yes or no – to your knowledge?
Mr Pillay: My understanding is that it's not necessary to withdraw it. It is an opinion.
Adv Mpofu: I take it that you are refusing to answer that simple question. I've asked it three times and I'm not going to ask it again. The reason I'm singling out the Sikhakhane Panel report is because it was appointed by you Mr Pillay, so surely it can’t fall into this category of the Bethlehem situation?
Mr Pillay: Mr Chairman, I must point out that there was a terms of reference given to Adv Sikhakhane and he changed the terms of reference to fix his focus on a unit in SARS, that was his choice.
Adv Mpofu: Yes, and having exercised that choice, which is wrong, and what have you, was his report ever withdrawn?
Mr Pillay: My understanding is that it is not necessary to withdraw it. And my understanding is that the judgments have pronounced that it's actually wrong in law and in fact, in many instances.
Adv Mpofu: And those judgments might be reversed on appeal?
Mr Pillay: That is possible.
Adv Mpofu: Yes. Thank you. No, that's fine. We'll argue it at the end. Now, you also testified about the IGI report specifically. You were taken to paragraph 113, I think – if we can just quickly go there. It starts at 112. I just want to show you some of the dangers of relying blindly on court judgments or the opinions of courts. Are we there? Do you have the hardcopy version Mr Pillay?
Mr Pillay: No, I don’t.
Adv Mpofu: Okay, so let’s wait. Okay, just so we save time, the passage that you were taken through… Remember, that the Public Protector was found to have been biased and all sorts of things like that, on the basis that she had claimed that she had not seen the IGI report? I'm sure you've heard. Did you watch the evidence of Mr van Loggerenberg?
Mr Pillay: Through you Chair, yes I did.
Adv Mpofu: Yes. Okay. So that's good. So you know some of what's coming. I'm saying one of the issues which Mr van Loggerenberg and I debated was this issue. Do you also associate yourself with his evidence that the Public Protector had emphatically stated in the report that she had not seen the IGI report?
Mr Pillay: Chair, my understanding is that it's the judgment that says… that uses the word 'emphatically'.
Adv Mpofu: No, it's not. The judgment used the word explicitly. Mr van Loggerenberg used the word emphatically, which basically means the same thing.
Mr Pillay: I think I use the word coyly denied.
Adv Mpofu: Yeah, so you don't agree with Mr van Loggerenberg that it was emphatically put in the report that she had not seen it?
Mr Pillay: At this stage, I can't remember too well, but I had a different view at that time and I expressed it.
Adv Mpofu: A different view to Mr van Loggerenberg?
Mr Pillay: The different view is expressed in the affidavit; we say it's ‘coyly denied’.
Adv Mpofu: No, Mr Pillay. Please listen to the question. Do you agree or disagree with Mr van Loggerenberg when he says the Public Protector in her report emphatically stated that she had not seen the IGI report?
Mr Pillay: I have a different view and it's…
Adv Mpofu: Yeah, that’s the same thing as disagreeing. What’s your problem? You can say you disagree with Mr van Loggerenberg, it's fine. He's not going to do anything.
Chairperson: Adv Mpofu, he has a different view.
Adv Mpofu: Yes Chair. I'm entitled to ask him to answer my question squarely. I've asked him a simple question. Does he agree or disagree? I mean, you know, I'm not a linguist. I don't have to go to some dictionary to work out his answers. Okay. Mr Pillay, from that I would assume therefore, you disagree with Mr van Loggerenberg, correct?
Mr Pillay: You can assume so.
Adv Mpofu: So can the Committee, correct?
Mr Pillay: They can assume so.
Adv Mpofu: And with that answer, I can also then assume that you differ with these three judges: Judge Baqwa, I think [was] the former Public Protector, Judge Windell and Judge Basson, when they say “The Public Protector relies on this report”, I’m reading at 113, “despite explicitly stating that she has not seen the report.” You also disagree with that, correct?
Mr Pillay: Chair, I did not use the word ‘explicitly stated’ in my affidavit.
Adv Mpofu: Yeah. Hence I’m asking. If you had used that word then I would not be asking you this question. I'm asking exactly because you seem to disagree with it. Thank you. Sorry to interrupt you.
Mr Pillay: Yeah. So there is a judgment and the judges have expressed it in a particular way. I'm sure that the Public Protector in her appeal, is going to deal with that matter.
Adv Mpofu: No. Well, it's unlikely that the Constitutional Court will grant the appeal. I'm just saying to you, whatever happens in the appeal, as we sit now, do you agree or disagree with that sentence of the three judges? To give you a hint, it's the same as Mr van Loggerenberg, with whom you have already disagreed. You know, with the quiz on radio, they give you a hint here and they say “Ask your friend”.
Mr Pillay: Through the Chair, I understand Adv Mpofu disagrees with this.
Adv Mpofu: No, I don’t. I have no view on this.
Mr Pillay: That is his view. I stated my view. I have placed it in an affidavit. There is a particular judgment; it's worded in a particular way. It is up to the Public Protector to challenge that. You may find errors in it; you may not find any errors in it.
Adv Mpofu: That’s fine, Mr Pillay. I'm afraid I'm going to sit on this one until you give me an answer. I'm saying to you, this should be simple; it shouldn't take us this long. There's a statement by Mr van Loggerenberg, which you've said you disagree with. There is a statement, exactly the same statement… The word explicitly emphatically in this context means that same thing from the three judges. But now you're having difficulty with saying it. I mean, does that even make sense to you?
Mr Pillay: So through the Chair, I know what the advocate is trying to do, he’s trying to pick on one or two particular instances, and to generalise on that. I am saying that the judgment differs from what we put in our affidavit, and I recognise that. I'm sure that the Public Protector is going to raise that issue. And so that's the, I think, real key issue that concerns us, is that the Public Protector had a view on that report. We didn't have a copy of the report.
Adv Mpofu: That much, unlike you, I will concede that point. You did not have that report. But I was asking you something different. Sorry, Mr Pillay?
Mr Pillay: And the second thing that I want to say is that the IGI put nothing before us. She didn't call me for an interview. She said she called me for an interview and that's not true. She didn't. She came to our offices. We had a general discussion on how we should cooperate with what we thought was a genuine inquiry. And insofar as my matters are concerned, that for me when it comes to the OIG report are very important things, thank you Chair.
Chairperson: Thank you Mr Pillay, and thank you Adv Mpofu. If you may pause there? We will take a break until lunch and be back at 14:00.
Adv Mpofu: Thank you, Chairperson. Thank you.
Chairperson: Adv Mpofu, I hand over to you to proceed.
Adv Mpofu: Thank you Hon Chair. Mr Pillay, Good afternoon.
Mr Pillay: Good afternoon.
Adv Mpofu: Yeah, I hope you had some time to reflect over lunch time. Yeah, I'm a bit worried. You know, if you carry on like this, there's going to be two problems: one will be around finishing this cross-examination; the second one is that I'm going to argue at the end, that your evidence should be disregarded because you are refusing to answer my questions, even the simple questions. I think let's try, maybe after lunch, we'll make some more, better progress. Okay? Yeah, I was saying to you… and I said I'm not going to move from this point because it's quite crucial for this whole entire process. This whole issue, the first issue that you and I dealt with, which is the status of judgments as opinions, but also this one now of where there are clear and blatant errors in a judgment which, just at a factual level… where one doesn't need to be a lawyer to pick up, (that) these are going to be very, very monumental issues in this process. I want us to work together. If… Can you go back, operator, to paragraph 113, where we were before lunch. . I'm saying, Mr Pillay, this really should be a simple exercise. What the judges said there was that “Public Protector relies on this report, despite explicitly stating that she has never… she has not seen the report”. You and I have agreed that that statement is wrong… or at least according to you, you have said something differently in relation to Mr van Loggerenberg. Do you disagree with that statement or do you agree with what it says [which is that] in the Public Protector’s report, there isn’t anywhere where she explicitly or otherwise states that she has not seen the report?
Mr Pillay: Chair, I've gone on oath to say… to talk about a ‘coy denial’. I do not mention explicitly. And the judgment states explicitly. And, I'm sure that the Public Protector will appeal that matter. That's…
Adv Mpofu: Yeah. No, that’s fine. Thank you, that’s true. But for now, the Public Protector is not the one on the witness stand. I'm asking you, based on your knowledge, and since you have given a different version, do you agree that that statement is factually incorrect? Or do you say it's correct? It must be one of the two.
Mr Pillay: Chair, when the matter comes to appeal, I would like to see the arguments advanced by the Public Protector and…
Adv Mpofu: No, it's not a legal issue, Mr Pillay. It's not a legal issue at all. It's simple. It's ‘eyes’, you know… whether she says she said she didn't see the report… any human being will be able to do that. Is it your… Do you disagree with the version that she had not seen the IGI report? You could be a carpenter – that's just a simple question – it's got nothing to do with being a lawyer.
Mr Pillay: I believe she's relied on the contents and she said she had it on good authority.
Adv Mpofu: Yes. No, we'll come to that. But let's… I'm saying do you agree or disagree that there is nowhere in the report where she explicitly states that she has not seen the report? We'll come to the good authority.
Mr Pillay: Chair, that is possible. I can't remember what was said. But when we said at the time that it's a ‘coy denial’, we did not say she explicitly stated that she had the report.
Adv Mpofu: Yes, you did not because that would be false.
Mr Pillay: Because we didn’t know that.
Adv Mpofu: No, but you had the report, what do you mean you didn’t know that?
Mr Pillay: At that time, we did not know that she had the report; we believed she had the report.
Adv Mpofu: Yes. Okay, now that you've seen the report, do you agree or disagree that that statement is incorrect?
Mr Pillay: Possibly incorrect.
Adv Mpofu: Possibly only?
Mr Pillay: Yeah.
Adv Mpofu: Yoh, alright. If you go to 115, the judges now say “Despite the fact that the Public Protector, according to the report, has never seen nor verified the contents of the findings of the IGI report, she ordered the Minister of State Security implement it within 90 days.” So that must also be incorrect, right?
Mr Pillay: It may be incorrect.
Adv Mpofu: Okay, we’ll get there, slowly. At 116 the judges say and you'll be happy to know this is the last one, “It is difficult to understand on what basis these sections of the Constitution can notionally grant the Public Protector the power to rely on a report that she herself has not seen because this is what she says in the report.” So this must also, maybe, be incorrect?
Mr Pillay: It follows.
Adv Mpofu: It follows, yeah. If the other one is more than, maybe, incorrect, this one is also more than, maybe, incorrect? Thank you. Alright. Well, there are many other examples, but I just wanted to deal with the one that involves you. You would therefore agree that a conclusion that’s based on the wrong facts, cannot be implemented… I mean, it must be disregarded? In other words, if I say, 'Mr Pillay is in Australia’, any other conclusion that follows from that will be wrong because you are actually in Europe, aren’t you?
Mr Pillay: Yes.
Adv Mpofu: Thank you. That would be the danger of swallowing a hook and sinker judgment, just because somebody typed words on a piece of paper, correct?
Mr Pillay: That's a sweeping generalisation. You cannot take one incident or one issue and say that the whole judgment is wrong.
Adv Mpofu: Fair enough. But, let's assume then this was the only issue in this judgment… whether the Public Protector says she has seen the report, then you'd agree that then the judgment would be worthless?
Mr Pillay: No.
Adv Mpofu: Even if it was just the only… let's say the only issue that was taken to court was simply whether or not the Public Protector says in the report that she has seen the report, and the judge has got it wrong, as you and I have just discussed, would that judgment still be enforceable or rather worth the paper it was written on?
Mr Pillay: My understanding is that the Public Protector denied that she had the report. It's ‘coyly denied’ that she had the report.
Adv Mpofu: That may be so, yeah.
Mr Pillay: If and when the matter goes to appeal, I imagine that aspects of her judgment may be adjusted and that it is up to the court there, to make an evaluation on the whole judgment.
Adv Mpofu: Yes, fair enough. That’s fine. And if the court denies the opportunity to challenge the judgment?
Mr Pillay: In my understanding, the judgment would be final.
Adv Mpofu: Then that's it? Then it means that even if you have the report, and you can see that it doesn't match what is said in these conclusions: that's it? She must just live with it for the rest of her life?
Mr Pillay: Chair, we’re getting into speculation. I think there's leave to appeal. You're going to appeal, let us see what happens. It might be said in the appeal, that the judgments are just.
Adv Mpofu: Yeah. Okay. That's fine, Mr Pillay I'm just saying, you know, I'm trying to talk to you not at the level of lawyers, just as a human being, you know, person to person. If it happened to you, I'm just saying there's a judgment that said, Mr Pillay is a child molester, sorry to use such a strong thing, and it was wrong: it's just factually wrong. You know that it's wrong. We all know it's wrong. I know it's wrong, you know it’s wrong, and so on. I'm just saying… and then the court doesn't give you, let's say, the leave to appeal. What must you do? Can you then be removed? Let's say you are working at a school, can you be removed as a teacher at that school on the basis of that clearly wrong finding that says ‘Mr Pillay is a child molester’? When we all know… everybody in the country will agree that you are not but it just happens to be typed in a judgment. Everyone will agree but simply because it's tied to a judgment, you must then not be a teacher for the rest of your life. That's what I'm trying to say to you. Is that what must happen?
Mr Pillay: Chair, I believe I've answered many times, and my answer stands: if one thing is found wrong and everything else is still right, that puts a different complexion. If many things are found to be wrong, it puts a different complexion on things. Personally, I am the last person to be unfair to the Public Protector, and in fact, the case I'm making is that the Public Protector has been unfair to me. She has consistently not listened. She has consistently accepted a particular version unquestioningly: and that's the point I'm trying to make. I accept that people make mistakes but I want to say this, that a person in authority, serious authority, there must be a higher bar for such a person to get it right. That is my understanding. The argument that this is a human being and she's going to get it wrong, I understand. But I think what I'm pointing out is a pattern. I'm saying that is a pattern of behaviour. It's up to the Committee how they weigh all of these things.
Adv Mpofu: No, I understand that. In the same vein, would you agree then that these paragraphs I sent you were also human mistakes on the part of those judges?
Mr Pillay: It's possible – people make mistakes. One looks overall at how many mistakes are made, what types of mistakes are made, is there a pattern.
Adv Mpofu: Yeah, fair enough. To be fair to the Public Protector that's why she actually insisted that we should ask that there will be three judges in that case, because it was quite a complex case. Just so that these, what we call quality control issues, don't arise. But yeah, no, I agree that people make mistakes. And if they do, even if they're so glaring, and fatal on other people's careers, that's what happens. We're all human. Okay, that's fine. Do you accept that one of the main issues regarding the so-called rogue unit was the facts about the transgression of the intelligence laws of South Africa? In other words, most, if not all of these people who found it to be illegal were saying so because it was performing functions which should be exclusively performed by the National Intelligence Agency, correct? They might have been wrong in that conclusion but that was the gist of the illegality or criminality that was alleged against you. Correct?
Mr Pillay: Yes, and confusing. What was originally conceived and what finally happened.
Adv Mpofu: Yes. If you go to Bundle E, page 817, item 1.1.
Adv Mpofu: That's the indictment against you as accused number one in the criminal case. Number two was Mr van Rensburg, as you say, and number three was Johan Hendrick van Loggerenberg. Do you remember this?
Mr Pillay: Yes.
Adv Mpofu: It says, the three of you "are charged with the following crimes: contravention of Section 49, read with Provision, Section 2” and so on… “of the Regulation of Interception of Communications and Provision of Communication-related Information Act of regulation 1, read with provision Section 2” and so on… “of the Regulation of Interception of Communication and Provisions of Communication Related Information Act.” That's you and Mr Van Rensburg; accused number one and two. The next one, says, “contravention of Section 10 of PRACA, Prevention and Combating of Corruption Activities Act, in that you "unauthorised gratification by a party to an employment relationship”, it’s the one about what Ms Bawa called the employment issue and then “contravention of PRACA, as an alternative.” This was about Section 1 of the National Strategic Intelligence Act, which says, “The established National Intelligence such as the Intelligence Division, South African Police and Agency”. What has been communicated there, is that there are only three structures that have intelligence capability and that you and Mr van Loggerenberg and others breached that law by establishing the Rogue Unit. Do you understand that?
Mr Pillay: That is what it says. We didn’t establish a rogue unit.
Adv Mpofu: Yes. Go to the very last page, with a signature. That is signed by Adv JP Pretorius, SC, Acting Special Director of Public Prosecutions Priority Crimes Litigation Unit. Can you see that?
Mr Pillay: Yes.
Adv Mpofu: Again, you say this is all made up?
Mr Pillay: I say that it is not true that the unit was founded unlawfully, number one; and number two I say that we made representations to the NDPP and the NDPP withdrew all of those charges.
Adv Mpofu: Yes, but you know that NDPP withdrawing charges doesn't mean that you are not guilty? It just means that they might not have the witnesses that they need. But it doesn't really mean you didn't do it. You know that?
Mr Pillay: I know that. Allegations also don’t mean that I did it.
Adv Mpofu: No, of course, but you also agree with me that it also doesn't mean you didn't do it?
Mr Pillay: It’s possible.
Adv Mpofu: Oh.
Mr Pillay: What you are saying and what I am saying…
Adv Mpofu: No, but that’s different. I agreed with you fully and you only go so far as saying it’s possible. But it’s fine, I’ll take that as the best I can get. Please go back to the ‘Substantial Summary of Facts’. So, this is how the National Director of Public Prosecutions saw the matter. It says, “The accused persons”, including you, “were members of the enforcement and risk division within SARS and were managed by accused number one”, that’s you, “who was the general manager of the division of SARS. Accused one”, you, “reported to the Commissioner of SARS” and accused two and three reported to you. “Accused 2 were employed as special officers” and so on. Then two,“ the enforcement and risk division of SARS under the leadership of accused one, Mr Pillay, produced a memorandum which was signed by Mr Pillay and Mr Van Rensburg in February 2007. The Memorandum was directed to the then Finance Minister, Trevor Manuel, and was requesting funding of intelligence capability within NIA in support of SARS. The purpose of the memorandum was to seek approval from the Minister to fund special capability within NIA to supply SARS and the law enforcement with the necessary information to address the illicit economy. Illicit economy refers to the importation of counterfeit goods, illegal harvesting of abalone and smuggling of cigarettes, and the importation of and transportation of drugs. The memo was recommended by the then commissioner of SARS Pravin Gordhan on 8 February, and approved by Deputy Finance Minister Jabu Moloketi. The then Minister signed his approval and request on 22 February 2007. The memo recognised that collecting tactical intelligence invariably meant that organised crime syndicates had to be penetrated to unearth their activities from within SARS, which was losing a lot of revenue. This was an activity for which SARS did not at the time have the capability, including the legislative mandate to manage clandestine activity.” Let me just pause there. You agree that that's what your memos said that the tactical intelligence capability that you were looking for was something that you are not entitled to do in law?
Mr Pillay: That is why we wanted to do it with NIA.
Adv Mpofu: Absolutely. Thank you very much. And that's where the problem is. You ended up doing it on your own here.
Mr Pillay: That’s an allegation.
Adv Mpofu: Yes, it's an allegation, but I'll give you an opportunity to respond to it. Then it says, “The memo also informed the Minister that discussions were taking place with the National Intelligence Agency to supplement SARS intelligence capability. It further stated that NIA was willing to create a ring-fenced capability provided that funds were made available, to cover personnel costs. It indicated that he was willing to formalise these arrangements in an MOU” and so on. So far, do you agree that's what you were requesting for the reasons stated? Correct?
Mr Pillay: Correct.
Adv Mpofu: Then let's go to the last one, paragraph 4. “In 2004, a member of the High-Risk Unit of SARS, with the assistance of accused number two, commenced installation of equipment at the offices of the Directorate of Special Organisations in the National Prosecuting Authority. In September 2007, accused 2 instructed that meetings of the DSO and the NPA should be monitored. This happened with the knowledge and approval of accused one” that is you, Mr Pillay, “both accused one, Pillay, and two, placed members of the High-Risk Investigation Unit”, that's the Rogue Unit, "under the impression that the authorisation required in Act 70 of 2002 was obtained from then President Mbeki. Various communications and meetings in the DSO were intercepted without the interception direction issued by the designated judge in terms of RICA. Conversations among members of the DSO during October 3rd to November 2007, were monitored, recorded and transcribed to without an authorisation from the designated Judge issued in terms of RICA. These recorded conversations among members of the DSO were handed to both accused number one” that's you, Mr Pillay, “and two, at their insistence. Accused one”, Pillay, “even gave witness 13”, that’s Mr Helgaard Lombard. You know Mr Lombard?
Mr Pillay: Yes, I do.
Adv Mpofu: He worked with you in the so-called rogue unit? Okay, I take that as a yes: silence means consent. “These recorded conversations among members of the DSO were handed both to accused number one and two. Accused one even gave witness 13 an assurance that if these interceptions were discovered, He”, that is you now, Mr Pillay, ”will take full responsibility for having given the necessary authorisation and guarantee the members involved legal assistance that will arise therefrom.” So Mr Lombard will say that “you give them the assurance that you take full responsibility and give them legal assistance”. Do you take full responsibility for asking them to bug the NPA?
Mr Pillay: Through the Chair, I did not ask anybody to bug the NPA. These allegations are untested.
Adv Mpofu: Right. Then, it says, “after the security and surveillance equipment were fitted at the office of the DSO”. Do you accept that at least there was spying equipment at the NPA, which was installed, let's say, not by you but as a matter of fact that there was such spying activity?
Mr Pillay: I don't accept that. What I am aware of is that the DSO requested for certain equipment to be put at their premises. They requested people who were working in SARS, who helped them to put it. These people had a company and they were known to the DSO and they requested them to do it. And my understanding is that it was all done after hours.
Adv Mpofu: I see. So by day, they were members of the so-called rogue unit and by night they were putting spying equipment at the NPA. And you're saying those two things are not related?
Mr Pillay: So the only rogue unit I know is that rogue unit of the SSA. You're talking about the SARS unit?
Adv Mpofu: Yes. No, no, no. Sorry. When I say so-called rogue unit… You call it the High-Risk Investigation Unit, I’m just calling it for what it is.
Mr Pillay: Yes. For what it is: the rogue unit in the SSA.
Adv Mpofu: Okay, not that rogue unit: your rogue unit. The one…
Mr Pillay: No, I don’t accept that it is the rogue unit. It has implications for lots of people, people who were members, people who did lots of good work. And it's unfair to tarnish everybody; just as it is unfair to have broken a whole institution because of these allegations.
Adv Mpofu: Yeah. Well, that's true. Well, that's exactly… We feel the same about the Public Protector. It's unfair to break an institution in vain.
Mr Pillay: You really can’t compare the two.
Adv Mpofu: You can’t? Which one is better? The Public Protector or the Rogue Unit?
Mr Pillay: No, I don’t mean in that sense. We've been under the cosh for years now and it still continues. What the Public Protector is experiencing in her office experiences…
Adv Mpofu: Is a Sunday picnic?
Mr Pillay: Yeah.
Adv Mpofu: Well, we’ll see about that. We were at a point where we were saying that there were members of, let's just call it the ‘unit’. Let's use a neutral word. There were members of the unit who at night were bugging the NPA… oh, I'm sorry, supplying equipment or whatever you call it, to the NPA for spying?
Mr Pillay: No, that’s not what I am saying.
Adv Mpofu: Okay, what are you saying?
Mr Pillay: I'm saying that there are people in SARS who provided a service to the DSO.
Adv Mpofu: But that doesn't make sense. Why would SARS provide (a) service to the DSO? The NPA is…
Mr Pillay: It was not a service provided by SARS. They approached individuals that they knew who happened to be working in SARS. And they knew that these people had experience in vision equipment and it was for the purposes of the DSO.
Adv Mpofu: I see. So these people happen to be members of the unit?
Mr Pillay: Yes.
Adv Mpofu: Yeah. So, we’re saying the same thing. So, effectively, what you're saying then is members of the so-called rogue unit or the High-Risk Investigation Unit, were asked, because they were known to be involved in this kind of thing, they were asked to provide this type of surveillance or spying equipment against our National Prosecuting Authority. I mean, isn't that almost treason?
Mr Pillay: That's not what I said.
Adv Mpofu: Okay, what did you say?
Mr Pillay: I said that a private company provided those services to the DSO, at the request of the DSO, that's what I said.
Adv Mpofu: Was there a reason this was done at night, by this company?
Mr Pillay: Because, during the day they worked at SARS.
Adv Mpofu: Aha, in the Unit?
Mr Pillay: Yes.
Adv Mpofu: Alright. It says here: “After security surveillance equipment was fitted at the offices of the DSO, and the NPA, an amount of R100,000 remained, and accused number one” that is you, “and three”, that’s Mr van Loggerenberg, “authorised the members of the High-Risk Investigation Unit”, otherwise known as the Rogue Unit, ”to keep the money as if it was a private installation”, oh, that's what you were saying just now, ” thereby giving him gratification, which was not due to him”, that is you. “Accused number three also gave the member an authorisation to perform private work after the work was completed in order to make the gratification appear regular.” This is almost like… it's what's called laundering or trying to ex post facto justify this treasonable conduct. You understand the accusation? You may not agree with it.
Mr Pillay: We deny it. We deny that we were involved in anything unlawful. SARS was not involved in any financial transaction. That was between members of the DSO and a private company. I think I've answered this matter.
Adv Mpofu: Of course, yes. And just to try and save time… So there was a range of witnesses, which ranged from the Commissioner for SARS, Mr Vusi Pikoli, Adv Menzi Simelane… Just keep rolling. Helgaard Lombard, Mr Johannes Daniel De Waal. These are the members of the Unit, correct?
Mr Pillay: Yes, but what does this have to do with the matter at hand?
Adv Mpofu: Which matter at hand? The matter at hand is the Rogue Unit, Sir. The one you were discussing with Adv Bawa. Mr Michael Peega, do you know him?
Mr Pillay: I know of him and I know him to be involved in poaching…
Adv Mpofu: Rhinos?
Mr Pillay: Yes, and he was discharged from SARS. I think after that, he began to work for the SSA for a while and he also worked for cigarette companies.
Adv Mpofu: Yes. But when he was doing rhino poaching he was a member of the Unit?
Mr Pillay: Yes, and that is why he was discharged from SARS. And he…
Adv Mpofu: So they could bug the NPA but not poach rhinos?
Mr Pillay: The NPA was not bugged, the NPA was assisted.
Adv Mpofu: Aha. They couldn’t assist the rhinos. Okay, no, that's fine. Let's keep on rolling. Then the next one is… Okay, then we have Mr Trevor Manuel. Those are the last list of witnesses. But as you say, at some stage, the charges were withdrawn? And we've at least agreed that means nothing… It doesn't say you did it; it also doesn’t say you didn’t do it, correct?
Mr Pillay: Correct. It's just the allegations mean nothing.
Adv Mpofu: Please remove the list of people on the screen. Thank you, Adv Bawa. Yes, I agree with you, Mr Pillay, they’re just allegations. But, at least we agree that the bugging did happen, but it was after hours?
Mr Pillay: It’s not a bugging… I would not use the words bugging.
Adv Mpofu: What words would you use about putting listening equipment at the NPA?
Mr Pillay: The NPA requested…
Adv Mpofu: To be bugged?
Mr Pillay: They requested equipment to be placed because they felt they needed it.
Adv Mpofu: For what purpose?
Mr Pillay: And that's the question you got to ask the NPA?
Adv Mpofu: You’re the one who said you’re going to get them lawyers if they get caught?
Mr Pillay: That’s… None of these things are tested. The point made in the judgment is that the Public Protector didn't test any of these things.
Adv Mpofu: Yeah. Anyway… So much for the Rogue Unit. By the way, are you aware that the equipment of the Rogue Unit is now being returned to the Public Protector? That Mr Kieswetter has invited the Public Protector to observe the handover?
Mr Pillay: I'm not aware and again, as I say, it's not a rogue unit. And secondly, there's no equipment. There's no equipment. By the way, your favourite report, the Sikhakhane report, says there is no equipment.
Adv Mpofu: So, to that extent Sikhakhane was correct?
Mr Pillay: Well, even he will happen to be correct on some occasions.
Adv Mpofu: Okay. Maybe we’ll call him as a witness.
Mr Pillay: Please do.
Adv Mpofu: Yeah, but we’ll also call all the members of the Rogue Unit. We’re only speaking to one, so far, but we’ll inform the Committee. Excluding you and Mr van Loggerenberg.
Mr Pillay: But really, the question is this, Mr Chair, why didn't the Public Protector do that work, then? I think that's the issue.
Adv Mpofu: She did. She spoke to Mr Manyike and to you. She spoke to many members of the Rogue Unit.
Mr Pillay: There’s no affidavit for Mr Manyike.
Adv Mpofu: Well, so what? So what does that mean?
Mr Pillay: We made affidavits and what we have put is evidence.
Adv Mpofu: Yeah, she didn’t use the same method to speak to members of the Rogue Unit – maybe you were the lucky ones. We’ll come back to this, but for now, let’s go to the retirement issue. Actually, no, let’s start with the matric issue. Do you have a matric certificate?
Mr Pillay: Yes.
Adv Mpofu: Where is it?
Mr Pillay: I have it.
Adv Mpofu: Where?
Mr Pillay: At my home.
Adv Mpofu: Did you give it to the Evidence Leader?
Mr Pillay: The Evidence Leader never asked for it.
Adv Mpofu: Did the Public Protector ask for it?
Mr Pillay: No. She asked me if I had a matric and I confirmed. She asked me if that’s what I told SARS, which I did. And if my memory serves me right, I did provide SARS with my matric certificate at that time.
Adv Mpofu: No, she did ask for it; but in fairness to you, maybe she didn't ask you, maybe she asked SARS. But her evidence will be that she asked for it, I’ll find out just now. And by the way, I have no problem with your matric certificate. For the purposes of whatever I'm going to ask, I’ll assume that it exists. But you see, the problem is that it's one of those issues… It's just a red herring. If we were not in a formal hearing I’d use a different description. It's really a deflection, maybe, in the most polite way. For now, let’s assume you have a matric, the point was not whether you have a matric certificate or not, the point that the Public Protector, and you know this, was making, was that somebody who only has a matric qualification under normal circumstances cannot be the Commissioner of SARS. I mean, I know you might be what somebody once described as an ‘organic intellectual’, but under ordinary circumstances, surely you would agree with me, Mr Pillay, that… I'm not saying it's impossible, but it's unusual. Would you agree?
Mr Pillay: I agree. It's unusual to have a President like the one we had, but we came from unusual circumstances.
Adv Mpofu: Yes, that’s true. In fact, there are three examples: the former President, and you and Mr Hlaudi Motsoeneng. But, the other two got to where they were because of political connections. How did you get there?
Mr Pillay: Hard work.
Adv Mpofu: So you are even better than the others? Because I think they would accept that their ascension – unusual ascension – was politically driven, obviously, in the case of the President, but yours was just pure hard luck?
Mr Pillay: Mr Chair, I think I must point out here that I did not appoint myself. I think these are questions you should ask the people that appointed me. What I do know is that we went through tough assessments during our period in SARS. We had something called the ‘goodness of fit’, which all of us except the then Commissioner underwent. I have the results of that goodness of fit assessment. It was the result of four and a half days of assessments that were conducted. I have the results and the results are available if you want to see it. I will send it to you
Adv Mpofu: No, I believe you. At least we’ve agreed that it's unusual and that it's something quite remarkable. You know, taxation is a very complex subject. For you to rise to the top of our tax system in this sophisticated economy, armed with a matric certificate, is something remarkable: and I mean that. But I am just saying that you would agree that it is not your usual everyday occurrence?
Mr Pillay: Chair, I must point out again, these things happened after 1994.
Adv Mpofu: I’m saying that even after 1994, it remains unusual.
Mr Pillay: It's unusual. I didn't enter SARS in a senior position; I entered in a mid-ranking position. I know somewhere it says Chief of Criminal Investigations: I wasn't a Chief. I was a General Manager of Criminal Investigations and I managed 300 people. I worked in SARS for 15 years.
Adv Mpofu: Yeah, I’m sure there are many other matriculants who’ve worked there for 15 years or 20 years. I’m just saying they wouldn’t rise up to become Acting Commissioner of SARS.
Mr Pillay: Well, I think that there were circumstances to that. I didn't think I would be Acting Commissioner and I had no wish to be an Acting Commissioner. And by the way, when I was made a Deputy Commissioner, my first action was to actually refuse it.
Adv Mpofu: Yes. Okay, that's fine. So let's leave the acting issue and let’s deal with the permanent position. Would you agree that it’s unusual to be Deputy Commissioner of SARS with those credentials?
Mr Pillay: It is.
Adv Mpofu: Thank you. No, that’s fine. Now, you and Mr Gordhan have been friends for almost 50 years, correct?
Mr Pillay: I wouldn’t say we were friends.
Adv Mpofu: What would you say?
Mr Pillay: We were fellow activists in Durban, before I went into exile. I really did not know him well. I only met him on a handful of occasions. I then met him in the underground after 1977 on a few occasions inside South Africa, and then on a few occasions, outside South Africa when he came through illegally into Swaziland. So we got to know each other better, in the underground. I still wouldn't say that we're friends; we were comrades.
Adv Mpofu: Well, friends can also be comrades. But, that’s fine. You said that both were involved in illegal activities?
Mr Pillay: In the ANC Underground?
Adv Mpofu: Yes, that’s what I am talking about.
Mr Pillay: Yes.
Adv Mpofu: It was not the first time you were working clandestinely?
Mr Pillay: What are you referring to?
Adv Mpofu: I mean, now when you and him agreed to form the Rogue Unit, it was not the first time you were involved in clandestine activities?
Mr Pillay: No, I do not agree with that. The conclusion that the unit was unlawful is not founded in law and in fact.
Adv Mpofu: Okay. That's fine. Mr Gordhan and you, let’s just say you were comrades and you’ve known each other for 40 years – just to be rough about it. Correct?
Mr Pillay: Correct.
Adv Mpofu: Then your evidence is that apart from the hard work, all of that had nothing to do with your meteoric rise in SARS, to become the Deputy Commissioner of SARS?
Mr Pillay: I really don't think so. As I say, I said to you when I was first told, I'm in line for Deputy Commissioner, my inclination was not to accept it. And, and it's the reason why I've never stood in line to be Commissioner.
Adv Mpofu: Yes, I accept that Mr Pillay, I really do. I was asking you a different question. I’m saying, are you telling this Committee and South Africa that your decades-long relationship with Mr Gordhan had absolutely nothing to do with your miraculous rise to becoming Deputy SARS Commissioner armed with a matric certificate?
Mr Pillay: If you ask me, I would say I earned my place. We ran a world class institution, and I'm not spinning words; by any measure of performance, we ran a world class institution. If this is what happened, that people handed out senior positions in SARS to anybody who's not capable, SARS would not have performed at that level. It's impossible. It's impossible for performing organisations to be appointing people who are not capable. It would show in the performance.
Adv Mpofu: Yes. No, Mr Pillay, I think we are talking at cross-purposes. I have no doubt about your performance capabilities, I'm sure they are superlative. I also have no doubt about the performance of SARS at the time when you were there. That's not what I'm asking you. I'm asking you whether you're seriously say that anybody must believe that your miraculous rise, to what you and I have agreed was unusual, had nothing to do with – whether you are capable or not as a separate matter– your 40-year relationship with Mr Gordhan. Yes or no?
Mr Pillay: I would say that it had nothing to do with it. And if anybody knows Mr Gordhan…
Adv Mpofu: I don’t.
Mr Pillay: The people that he drives the hardest are the people around him. There’s no easy road, there’s no soft job that Mr Gordhan gives to people.
Adv Mpofu: Even that I’m prepared to accept.
Mr Pillay: So when there was an opening in SARS, I applied for it. I was assessed – I went for an assessment then, I was interviewed. I got the job. I wasn't even on the executive of SARS when I joined SARS in the first few years. That is my explanation.
Adv Mpofu: No, no. Mr Pillay, I accept that. You are exceptional people, I mean Mr Gordhan was only a pharmacist as well and you guys performed so well. Congratulations. But I'm simply saying to you… Okay, I think you've heard what I've said and you haven't answered it. That's fine. Let's move on. Is it also your evidence that your so-called retirement had nothing to do with your relationship with Mr Gordhan?
Mr Pillay: Yes, it has nothing to do with Mr Gordhan.
Adv Mpofu: I see. But Mr Gordhan… It is true that Mr Gordhan… When this idea first saw the light of day, you wrote a memorandum or rather a request to Mr Symington, correct?
Mr Pillay: Correct.
Adv Mpofu: That was in 2009, correct?
Mr Pillay: It should be, yeah.
Adv Mpofu: It was forwarded to Mr Gordhan in March, 2009, correct?
Mr Pillay: Correct.
Adv Mpofu: And, in that memorandum, you were requesting what I refer to, as it is indicated in the judgment… you were requesting a package deal, for lack of a better word, in other words, that you should, ‘retire’, because we don't accept it as a retirement, number one. Number two, that you should then be rehired immediately. And what was the third thing? That SARS must pay for the money owed to the GEPF. That was the package you were requesting, correct?
Mr Pillay: Correct.
Adv Mpofu: Right. Now, Mr Gordhan was then told by Mr Symington that that package was not a good idea. If any element of it was not going to happen, you should withdraw the request, correct?
Mr Pillay: Correct… Well, I believe it was Mr Symington who said to Mr Gordhan… No, no. It's Mr Symington who advised me that the three parts should go together and if it wasn’t agreed to, then I shouldn’t proceed.
Adv Mpofu: Yeah, okay. I don't think that's exactly how it happened, but nothing much changes from that. The point is that Mr Symington’s advice was that this scheme can only be advised if it was going to go as a package deal but if one element was missing, it should be withdrawn. In a nutshell?
Mr Pillay: Yes.
Adv Mpofu: You see, once again, the judges in your judgment said that I was wrong to refer to it as a package deal, but that's a story for another day. So what then happened is that Mr Gordhan became a Minister after the 2009 elections, correct?
Mr Pillay: Correct.
Adv Mpofu: A few months after you had given him this request. Correct?
Mr Pillay: Correct.
Adv Mpofu: And Mr Magashula became the Commissioner for SARS, correct?
Mr Pillay: Correct.
Adv Mpofu: Then Mr Magashula wrote the request for your so-called retirement to the Minister of Finance, who happened to be Mr Gordhan. Correct?
Mr Pillay: Correct.
Adv Mpofu: And Mr Gordhan considered this carefully and approved your so-called retirement, correct?
Mr Pillay: Correct. Retirement from the pension fund.
Chairperson: Just repeat that? I didn’t get that.
Mr Pillay: What I said is that my intention was to retire from the Government Employment Pension Fund.
Adv Mpofu: Oh, I see.
Chairperson: Okay, thank you.
Adv Mpofu: Okay, so why did you write to SARS? I thought you wanted to… Sorry, Chair?
Chairperson: Just pause, Adv Mpofu. Hon Herron?
Mr Herron: Sorry, while you were asking for clarity, I couldn't hear what that third part of the retirement package was. Can we just have that clarified as well?
Adv Mpofu: Okay, thank you, Hon Member.
Chairperson: Just repeat yourself again Mr Pillay?
Mr Pillay: Chair, I applied as part of that package to retire from the pension fund because I wanted to access my pension fund.
Mr Herron: Sorry, just before that, Mr Mpofu said there were three components to the deal: retire, rehired immediately and then SARS to pay something… I couldn't hear what it was.
Chairperson: Was that Mr Pillay or Adv Mpofu?
Adv Mpofu: I can clarify that, Chair, if you don’t mind?
Chairperson: Please clarify it.
Adv Mpofu: Thanks. Yes, Hon Herron, this is very important, it was what Mr Pillay and I call ‘a package’. It had those two elements, which were, to retire and then to get the Minister agree for SARS to pay the penalty. If you retire before the age of 60, there's a penalty that is payable and only with the approval of the Minister that you fall under, and in this case it will be the Minister of Finance, can that approval be received for the employer to pay the penalty. So that was the second or rather the third element. The second element listed was that he would be rehired immediately on a contract after retiring. Is that more or less it, Mr Pillay?
Mr Pillay: Yes, on a similar contract.
Adv Mpofu: Yeah, thank you. We'll come back to the sequence, but just so that Hon Herron has a complete picture. As it actually happened, your so-called retirement happened at midnight on 31 December 2010, correct?
Mr Pillay: Correct.
Adv Mpofu: You were rehired…
Chairperson: Just a pause, Adv Mpofu. Adv Bawa?
Adv Bawa: Sorry Adv Mpofu, I’m not interrupting you. This package in the judgment is discussed at paragraphs 124 onwards.
Adv Mpofu: Except the judgment said it wasn’t a package or rather… something like that. But that's fine. That's true. I was just saying as a matter of fact, just to complete the picture for the Hon Member and other Members, the so-called retirement happened at midnight on the 31 December, New Year's Eve, correct? Mr Pillay?
Mr Pillay: Correct.
Adv Mpofu: You were rehired a minute later – just as we were celebrating New Years – after 12 on New Year's Day, the 1st of January 2011, correct?
Mr Pillay: That’s correct.
Adv Mpofu: Thank you. Yeah. So that was the nature of the scheme. I call it a Ponzi scheme. Yeah, but you might have a different word.
Mr Pillay: Chair, I should point out that all of these matters came before the courts, and the courts have applied themselves to it. And…
Adv Mpofu: The court said it was okay?
Mr Pillay: The court said it was okay.
Adv Mpofu: Yeah, I know. I was there. Be that as it may, the Committee will have to make up its own mind on it because you have raised it. I was saying it's not relevant but Ms Bawa says it is. So effectively, the third element of the scheme is really what the Public Protector was worried about, namely that Minister Gordhan then approved that SARS must pay R1.1 million of the penalties to complete this scheme, correct?
Mr Pillay: Correct. I would prefer the word package be used. It wasn't a scheme.
Adv Mpofu: Yes, sorry. When I say scheme, I don’t mean it negatively. Let’s say package then. Without that approval by Mr Gordhan, the package would have fallen flat. Correct?
Mr Pillay: I believe they were… Yes, it would have fallen flat and then there were other options, which would apply.
Adv Mpofu: Yeah, well, okay. You said at some stage or rather, when you are rehired, you were rehired in the same position of Deputy SARS Commissioner, correct?
Mr Pillay: In the role of Deputy Commissioner?
Adv Mpofu: Yes.
Mr Pillay: Yes, but I didn't have the same duties any longer that I had prior.
Adv Mpofu: Yeah, but you had the same title and the same money, correct?
Mr Pillay: Correct?
Adv Mpofu: And yet, you were… Well, maybe let me ask you this, as there are many versions of this; what was the reason for you to be so lucky to get this package? By the way, do you know that no other South African human being has received such a package?
Mr Pillay: Chair, to you I was told that thousands of South Africans also accessed such. This matter has gone all the way: it's gone to the Constitutional Court. And the court has accepted this. The next thing I want to point out is that Commissioner Magashula pointed out, and I pointed out in my affidavit, that in the ordinary course of events over the next few years, SARS would have saved money because SARS would no longer be contributing on a monthly basis to my pension. So that was submitted in an affidavit on 21 May 2019. But of course, it was never responded to. I don't think Mr Magashula’s affidavit in this respect was also responded to.
Adv Mpofu: Yes, be that as it may, I was asking you, what was the reason… Do you think there are thousands of people who received a similar package?
Mr Pillay: Yes. We were told that when Commissioner Magashula discussed with the relevant public administration official, that there were about 2000 people who accessed such.
Adv Mpofu: Such a thing. Actually, I think that the number was 3000, but it’s a lie. There’s no such thing. We’ll come to that.
Chairperson: So there were about three… Sorry, Adv Mpofu?
Adv Mpofu: Mr Pillay was saying that they were told at the time that there were about 2000, I’m saying the actual number they had was actually 3000.
Adv Mpofu: Yes.
Adv Mpofu: But I was just saying that was a phantom number. There's no such thing. There's no other human being in this country who has ever received the package that Mr Pillay… and I’ll demonstrate it just now. Mr Pillay, in your affidavit, you cited four examples, not 3000, correct?
Mr Pillay: I cited four examples from within SARS of people who retired and were re-hired.
Adv Mpofu: Yeah, you see, that's where the misrepresentation was. So those people had retired and were rehired, correct?
Mr Pillay: Yes, one minute past midnight.
Adv Mpofu: No, that’s exactly the point. Some of them had to be recalled when there was a shortage. They didn't retire and get rehired within one minute.
Mr Pillay: Well, I’m not sure about that.
Adv Mpofu: Well, I’m sure. Okay but if I'm right, then you'd understand that those four examples should be thrown out of the window. In other words, it would not be comparing like for like?
Mr Pillay: Well, I mean, what you're saying is that it would be okay if I pretended to be out of work for three months, and then I was rehired.
Adv Mpofu: Is that what you're accusing those people of doing?
Mr Pillay: No, no. That’s what you’re saying.
Adv Mpofu: No, when did I say that? Maybe I forgot. That’s not what I’m saying. I’m saying those people were genuine, unlike you. They might have retired. Yes, you are right there. Then maybe six months later or a year later SARS realises that they might need their skills; they approach them and they negotiate a contract. Nothing wrong with that. I'm just saying none of them had… were the ‘one minute specials’ like you. You are the only South African who has ever achieved such a feat and probably will be for the next thousand years. I don't think that kind of Ponzi scheme will ever be allowed again.
Mr Pillay: No, it's not a scheme, Mr Chair, I object to that. The matter has gone all the way to the Constitutional Court. And the Public Protector has failed to prove otherwise.
Chairperson: Okay, objection noted. Thank you.
Adv Mpofu: Sorry for using the word scheme. Now you cited in paragraph 25.6 of your affidavit.
Adv Bawa: Mr Mpofu, can you tell us which affidavit it is?
Mr Mpofu: Case number 36099. Mr Pillay, the person you refer to, was one Mr Trevor van Heerden, correct?
Mr Pillay: Correct.
Adv Mpofu: Who had retired from SARS, with effect from 31 August 1999, correct?
Mr Pillay: Correct.
Adv Mpofu: And later he was employed as a specialist in legal drafting, correct?
Mr Pillay: Correct.
Adv Mpofu: Certainly not a ‘one minute special’, correct?
Mr Pillay: I don’t know what that means.
Adv Mpofu: It means your situation where you retired one minute and then rehired the next minute… or the next two seconds.
Mr Pillay: Chair, what I am saying is that the intention, and it was explicit, that I was retiring from the pension fund.
Adv Mpofu: Oh, you were not retiring from SARS?
Mr Pillay: That was not the effect of this. If one retired from the pension fund, then one retired from SARS, and one had to be rehired on contract. Those are the rules.
Adv Mpofu: Aha, I see. It was a double retirement?
Mr Pillay: This was not a subterfuge – and by the way, this was well-known in SARS. There was no attempt to keep any of this under wraps and to make it out as a particular scheme. I point out again, that the matter has gone right up to the Constitutional Court.
Adv Mpofu: And the court said it was fine?
Mr Pillay: The court said you have not provided evidence to them to make a different view. They made it, they took a view. They made a judgment on what was placed before them.
Adv Mpofu: Yes, Mr Pillay. Then what are you doing here? You came here knowing that there was a judgment on the matter. You came here to assist this Committee to deal with this matter, correct?
Mr Pillay: Correct.
Adv Mpofu: Thank you. Alright. So you agree that Mr Van Heerden was not a ‘one minute special’ like you?
Mr Pillay: No, I resent that. Chair, I ask for your intervention. I find it insulting and I don’t think he should be allowed to do that.
Adv Mpofu: One minute is an insult? Did you retire…
Mr Pillay: Your intention is to insult me.
Adv Mpofu: No, Mr Pillay.
Chairperson: Adv Mpofu, you were just given a suggestion of rephrasing that. You can achieve the same thing with a rephrasing without… Thank you.
Adv Mpofu: I will, I will. Yes, Mr Pillay, you're the one who gives gratuitous insults according to the court, and that's why you were mounted with attorney client costs but we’ll come to that later. Let me rephrase that, do you agree that there was a period of more than one minute between him retiring and him being called back, correct?
Mr Pillay: I cannot remember that. You can tell me what the period was.
Adv Mpofu: What do you think? Is it possible that it was more than one minute?
Mr Pillay: I don’t know.
Adv Mpofu: Alright. The next one was Mr John Hansen, do you remember him?
Mr Pillay: Yes, I remember Mr Hansen.
Adv Mpofu: He retired 31 December 1998 and was rehired 6 October 1999, almost a year later, not a minute later, correct?
Mr Pillay: Correct. Chair, I think Adv Dali has made his point, whatever his point is.
Adv Mpofu: Fair enough. We won’t waste the time of the Committee. The point is that the four examples you have made are not like for like. Correct?
Mr Pillay: Mr Chair, is my affidavit here on trial? Is there an untruth that is there?
Adv Mpofu: No, the untruth is what you've just told this Committee, which is to say that these four people were comparable to your situation. I'm trying to unpack that untruth. And the court said it was; but the Committee will make up its mind. That’s the only untruth we’re dealing with for now. Pardon?
Mr Pillay: So Mr Geert Stevens… Go up to Mr Geert Stevens again.
Adv Mpofu: He retired on 31 March 2003, and was re-employed on a fixed term contract on 1 April 2003.
Mr Pillay: What is that?
Adv Mpofu: It’s a ‘one minute special’.
Mr Pillay: So how am I unique?
Adv Mpofu: Okay, that’s fine. So you agree that the only one that is like you is Mr Geert Stevens?
Mr Pillay: No. Mr Chair, I don't know from the thousands of people who work in public administration in South Africa, how many similar cases there were. We were told that there were about 3000. We asked for the records and we could never get them. We could never get the records. I cannot pronounce whether I am unique or not. I made a request. I did not approve this request myself. Mr Oupa Magashula made a recommendation and Minister Gordhan took his time, but he finally approved that. That is where I stand on the matter.
Adv Mpofu: Let me assist you, I will even be on your side. Look at Mr Kosie Louw who retired on 31 December 2013 and was rehired 1 January 2014. He and Mr Stevens are the same. One retired on 31 December 2013 and was rehired on 1 January 2014, while the other retired on 31 March 2003 and was rehired on 1 April 2003. So let's eliminate the other two. Do you agree that in the case of these two persons… at least these are the only two persons who are comparable to you in terms of the ‘one minute number’, correct?
Mr Pillay: Chair, from what is presented here, and these are just examples within SARS, these people were reemployed on contract the day after they retired from the pension fund.
Adv Mpofu: Yes, like you.
Mr Pillay: This is what it says, it says nothing about anybody else in government.
Adv Mpofu: No, Mr Pillay. This is your affidavit, right?
Mr Pillay: Yeah.
Adv Mpofu: Yeah, you're the one who did this. I'm not saying that it's talking about… You said, in fairness to you, “Retired then continued to work for SARS after retirement”, so yes, I agree with you, this is just SARS. Okay. Now, I'm saying in these examples, you have two, but I'm saying to you, those two people did not have their penalties paid by SARS. Which is the real issue here. It's not so much that people retired. I'm agreeing with you that people might have retired, others might have been rehired. And as we've seen, some of them might have been rehired immediately, but we're talking about the package here. Do you understand?
Mr Pillay: Mr Chair, I understand that there is a package. I understand I requested it and it was approved. I also understand that there was, in this, a saving for SARS, over time.
Adv Mpofu: That might well be, Mr Pillay, I accept that. I’m saying that there might be a saving… Well, no, I don’t accept it. But for the purposes of my question, let’s put that aside… That saving would have been fortuitous, isn't it? It could have been a loss?
Mr Pillay: How is it going to be a loss?
Adv Mpofu: Well, as you know, in pension law, there might be a saving that happens because the markets go a particular way or whatever. I'm not discussing that – we will come to that if you want to. I’m simply saying that the scheme at that time, or rather the package cost SARS and the taxpayer R1.1 million. Agreed?
Mr Pillay: Agreed. And this arrangement saved SARS money over the next few years.
Adv Mpofu: Okay. Well I'm sure that thousands of South Africans would like to save SARS, by getting a R1.1 million windfall. I’d like to save SARS, as well if they can give me R1.1 million and a monthly payout on top of it. But, we'll come to that. Let's do it step by step.
Mr Pillay: Chair, this is badgering. I’ve answered the question.
Adv Mpofu: Sorry, what did you say to me?
Mr Pillay: This is badgering me.
Adv Mpofu: I’m badgering you?
Mr Pillay: Yes.
Adv Mpofu: How did I do that?
Mr Pillay: You are on the same thing, over and over. I say ‘Yes, there is a package. Yes. The penalty was paid. Yes. I retired from the pension fund. Yes I was rehired the day after.’ I say ‘I didn't approve these things for myself’ but you say it's a scheme.
Chairperson: That’s fine, Mr Pillay. Can we now proceed, Adv Mpofu?
Adv Mpofu: Mr Pillay, I’m not badgering you Sir. I’m trying to cross-examine you. You volunteered to come here. It’s my job, Sir, to demonstrate that your evidence and your motives for coming here are not as holy as you would like us to believe. That is what I do. That is really my only intention. I only asked you once about this issue of the R1.1 million, I don’t know why you are saying that you have kept on answering it. Maybe you are imagining it.
Mr Pillay: Mr Chair, we have been on this for about 20 minutes.
Adv Mpofu: On the R1.1 million?
Mr Pillay: On the package – we’ve been on it for about 20 minutes.
Adv Mpofu: Don’t worry. You have given us a 500 page affidavit, Mr Pillay.
Chairperson: Mr Pillay, we have a set time for the process, so please allow Adv Mpofu to proceed with his time. We are 30 minutes away from the time I set aside in the morning. Thank you.
Adv Mpofu: We are very far from that, Chair.
Chairperson: I’m saying the time I set as the Chair, which was 4 o’clock.
Adv Mpofu: Oh, I see. You did say we’ll discuss it at the time. I apologise, Chairperson. It is a Friday and it seems that everyone is tired, including Mr Pillay. Just be patient with us, Mr Pillay. Okay, let's round it off. In fact, in fairness, you tried earlier to say the point is made but then you said ‘Quickly go look at Gert Stevens’. You’re the one who brought us back here.
Mr Pillay: No, when you first put this, you said that I was unique.
Adv Mpofu: Yes, but I was going through them one by one. I was going through them one by one; you stopped me.
Mr Pillay: No, you stressed this matter about one minute after. You stressed this and called me a ‘one minute special.’ Don’t be untruthful.
Adv Mpofu: Okay, Mr Pillay. No, I am not being untruthful. I just demonstrated to you that you are unique because you are the only person who has all the three elements of the package. Do you understand that?
Mr Pillay: You say so, I haven't seen the whole…
Adv Mpofu: Do you know anyone else? No, it is not my baby.
Mr Pillay: But you are not an authority on public administration.
Adv Mpofu: How do you know that I’m not an authority on public administration? Who told you that? Did you just look at me and assume I am not an authority?
Mr Pillay: But then that means you've done the survey. You've checked all of this. Then if you tell me that this is unique, then I'll have to accept it. Because you're the authority.
Adv Mpofu: Yes. No, Mr Pillay, let’s calm down. It’s your examples and you brought four names, correct?
Mr Pillay: Correct.
Adv Mpofu: Yes. It is not me, it is you. Now, I was saying let's look at those names, and my intention is very simple, it is to support what I put to you upfront, which is that there might be someone who retired, there might be someone who was rehired, there might be someone who did all these things, but I'm saying you, Mr Ivan Pillay, are the only human being I know who had the package as defined. If there is someone else you know, other than these four, then you can tell us. Do you accept that?
Mr Pillay: Mr Chair, I don’t know. My expectation is that it is allowed for in the law. And by the way because of where we come from, there is no way I'm going to know, what is allowed for in the pension laws and in SARS rules. I asked people and people told me, my assumption is that you can get, under certain conditions, the penalty paid because this is what I was told. I am not a person who sits and reads the laws and finds a loophole in the legislation. That's not my job.
Adv Mpofu: No, Mr Pillay. I think you are being unfair to yourself. You don't have to read the law books. Mr Symington said this to you… that this thing…package can only work if all the three elements are in; if one of them falls away, you must withdraw it. It was a simple two page memorandum. You don't need to read any law books. This was explained to you, after you had made the application. Am I correct?
Mr Pillay: Chair, my question is this: how would I even know that a penalty will be paid for me – can be paid for me, under certain circumstances?
Adv Mpofu: Because you asked for it, Mr Pillay.
Mr Pillay: No, what I am explaining is that it was my intention to withdraw from the pension fund and to pay the penalty. Then I was told that ‘Look in certain circumstances, the penalty can be paid by SARS, right? I made an application. None of these things in law were designed by us. I must finally point out that I don't authorise… I don't approve of this thing myself. I made a submission and it was for Commissioner Magashula and the Minister to say no. I would then reconsider what I'm going to do.
Adv Mpofu: Yeah, but the point I'm making is that the Minister would not have said no, as he is your friend and comrade. He’s the one who originated this thing when he was a Commissioner of SARS.
Mr Pillay: No, that is unfair. That is a slur on the Minister.
Adv Mpofu: How so?
Mr Pillay: You are just throwing things around, hoping that something sticks.
Adv Mpofu: You like insulting people, Mr Pillay.
Chairperson: Adv Bawa?
Adv Bawa: Mr Chair, I want to bring to your attention that it's quite clear from the judgment that the payment of the R1.258 million came into effect by operation of law; it's not a factual question. The reference in the judgment is 214 and 250.
Chairperson: Thank you for the clarity. Proceed, Adv Mpofu, with your cross-examination.
Adv Mpofu: That’s not true. Maybe Mr Pillay will help us. Mr Pillay, do you accept that the payment of the R1.1 million would not have occurred without the approval of Mr Gordhan?
Mr Pillay: My understanding is that once the early retirement was accepted, the issue of the penalties kicked in, automatically.
Adv Mpofu: No, Mr Pillay, please answer the question. Do you accept that the payment of the R1.1 million penalty would not have occurred without the permission of Mr Gordhan?
Mr Pillay: In the end he approved it.
Adv Mpofu: Mr Pillay, this is the last time. Do you accept or reject the fact that the payment of the R1.1 million by SARS would not have occurred without the permission of Mr Gordhan?
Mr Pillay: My understanding is that Mr Gordhan okayed my early retirement, and there was an automatic consequence. And indeed, he approved it.
Adv Mpofu: You don’t want to answer my question, that’s fine. There is nothing I can do about that. Do you accept that when the package was presented to Mr Gordhan on the basis of the tripartite package deal that you would be rehired, SARS would pay the penalty and you would ’retire’?
Mr Pillay: Yes.
Adv Mpofu: Yes, and that’s the uniqueness of the package. Did you say, when you were applying for this… You said that you were proposing to serve SARS in a different capacity, correct?
Mr Pillay: Correct.
Adv Mpofu: But it turned out that you were rehired still as Deputy Commissioner of SARS, correct?
Mr Pillay: No, the title that I had was the same but my role was different. I now headed the Risk and Enabling [Unit] of SARS. Enforcement was moved to Mr Gene Ravele. So 3000 people went to Mr Gene Ravele.
Adv Mpofu: Alright, but you were still the Deputy SARS Commissioner, correct?
Mr Pillay: I was originally one of three and the title remained with me. Eventually I was the only one left.
Adv Mpofu: It was in the same capacity, then? Your capacity was Deputy SARS Commissioner?
Mr Pillay: Yes, it was the title. There was no particular authority that the Deputy Commissioner had.
Adv Mpofu: No, I’m not talking about authorities, Mr Pillay. You’re going to say I am badgering you, yet you refuse to answer my question. When you were rehired a minute after midnight on December 28 2010, you were rehired in the same capacity, right?
Mr Pillay: In the same title, yes.
Adv Mpofu: Pardon?
Mr Pillay: With the title Deputy Commissioner. I really don’t understand it to be the same capacity, as the core of my work changed to ‘enablement’… from enforcement operations to enablement.
Adv Mpofu: Capacity is not my word, Mr Pillay, it's yours. I’m reading from a memorandum you wrote on June 27 2009, “Dear Oupa…” and then you say “the purpose of the memorandum is to explain that I have decided to take early retirement, as well as to recommend the possible approval by the Minister of matters that flow from my decision.” Then somewhere you said “I was expected to perform at a high level. This exalted a toll from me in the sense of my health”, and so on. Then you say that, “should you favourably consider my proposal to serve SARS in a different capacity,” so, it’s your word “such service will have to be subject that I be appointed as a contract employee, this will allow me more flexibility. The second condition will be that my early retirement is approved in terms of the provisions of Section 63(6)(a). Meaning that the Minister in terms of the provisions of above mentioned shall approve the penalty imposed on my pension.” and so the “GEPF has indicated that the penalty amounts… my personal benefits my employer has to pay on my behalf is R1.2 million.” That was the package. You proposed it on the basis that you should be in the same capacity, correct? That’s on page 470, Bundle E, Item 1.1
Mr Pillay: I thought what you read was said in a different capacity?
Adv Mpofu: Yes, you said it in a different capacity. But I am debating with you that you were then employed in the same capacity.
Mr Pillay: No, Chair. You look anywhere in SARS, there's no special delegation for a Deputy Commissioner. There's no special salary band for a Deputy Commissioner, it is just a title. From the time that it was set up, it was never developed into anything. It's just a title. That's all. What really matters is what one did.
Adv Mpofu: What are you saying? Are you saying that when you said ‘here to serve in a different capacity’ you meant still as Deputy SARS Commissioner?
Mr Pillay: No, I didn’t mean that.
Adv Mpofu: So, what did you mean?
Mr Pillay: In other words, the Commissioner could have said, ‘listen, then you’ve got to leave the title.’ I wasn't concerned about that; I was concerned that I wanted to move away from enforcement operations, to the enabling space, which, by the way, is a recommendation that was made by our consultants that I should eventually move out of the operations phase to the enablement phase.
Adv Mpofu: Okay. I don't think you even know what you're saying yourself. But it's clear that you said that work was stressful, it was affecting your health and you would be prepared to serve in a different capacity. I mean, it's obvious. I don't know why you're running away from this.
Mr Pillay: That’s what I said. I’m agreeing with you.
Adv Mpofu: Oh, thank you. Sorry, that was my mistake.
Mr Pillay: I'm agreeing with you. I'm saying don’t pay attention to the title ‘Deputy Commissioner’.
Adv Mpofu: Anyway, what was the reason for you to get this windfall… this package? Or rather to ask for it?
Mr Pillay: I had personal reasons to access my pension fund.
Adv Mpofu: Yeah, but what were they?
Mr Pillay: They are medically and family related.
Adv Mpofu: Okay, so at least in this memorandum you said it was your health, correct?
Mr Pillay: Yeah, that’s personal.
Adv Mpofu: Then at some stage it changed to something else, correct?
Mr Pillay: It’s family and I think at some stage I spoke also about education.
Adv Mpofu: Yes, it kept changing several times. So what was the real reason?
Mr Pillay: The broad overall description was that it was personal, it took a toll on my health, it took a toll on the health of my family; and as a family as a whole, we were making our decisions about how to move forward. So the reasons are personal.
Adv Mpofu: Mr Pillay, are you okay? Are you alright? You’re slurring now. Are you tired? Do you want us to take a short break?
Mr Pillay: No, no. I’m fine.
Adv Mpofu: You’re fine? Okay, we’ll carry on. I’m asking seriously though, we can take a short break.
Chairperson: No, no. Please proceed, Adv Mpofu and Mr Pillay.
Mr Pillay: No, no. We are going up to 4 o’clock.
Chairperson: Please proceed, there are timelines here.
Adv Mpofu: No, Chair. If I feel that the witness is…
Chairperson: He is fine and he doesn’t want to take a break.
Adv Mpofu: Yeah, well you are not him, Chairperson. If he is not feeling well…
Chairperson: I’m the Chairperson of this session. He will say so if he needs it. Please proceed.
Adv Mpofu: Chairperson, it is my professional duty if a witness is tired to ask him if he’s alright, whether you like it or not.
Chairperson: There is a Chairperson who is presiding over this session: it is not you. Please proceed.
Adv Mpofu: Yeah, you are not a doctor. Okay, thank you Chairperson. Mr Pillay, do you know that Mr [Nico] Coetzee said this scheme, sorry Mr Pillay, that this package was not correct?
Mr Pillay: I believe at the time that I didn’t know that but I believe he communicated with the Commissioner and he pointed out certain things to the Commissioner. He also later communicated with the Minister to say there is nothing unlawful about it. He had some misgivings about it and he raised the question that ‘if somebody else asked for such a thing, would you give it to them?’ But I only saw that afterwards.
Adv Mpofu: In your court papers? Let’s go to Bundle, page 468, please? This is Mr Coetzee saying "I'm resending this email on account of a slight change I've made to the two attached documents. The changes indicate that the reason why Mr Pillay is requesting approval for early retirement is to provide for his children's education,” this was one of the versions of your request, “and not as I have previously stated that he wished to pursue other interests. You will now have to consider to recommend and the Minister consider to approve if this is sufficient reason” You say that he puts that in block letters. In other words, the reason was important. Okay. “To recommend or approve Mr Pillay’s application for early retirement. If his application is duly approved, it could technically be construed that SARS is willing to contribute from each budget, an amount of R340 000 towards the education of his children. I admit this is a rather cynical viewpoint. But it can be a viewpoint that may be held by other parties as well, that may put yourself and the minister in a tight spot.” You see that?
Mr Pillay: Yes.
Adv Mpofu: "Especially because Mr Pillay was re-appointed in his present position. The argument may be that he was able to continue with his present functions but his early retirement and reappointment was purely to assist him to be able to provide for his children's education with R340,000 'contribution' from SARS." In other words, this whole package, as you call it, was just a free bursary for your children at the taxpayers' expense, according to Mr Coetzee’s analysis in this email. Correct? Or rather, that it could be viewed like that?
Mr Pillay: It could be but there are also other views. Mr Vlok Symington had another view. David Maphakela, SARS attorney, hired by then Commissioner, Tom Moyane, also said that the arrangement, the request and the approval was lawful. Again, I point out that all of these things went through all the court processes right up to the Constitutional Court.
Adv Mpofu: Yes, but Mr Vlok Symington did not say that. It's a lie to say Mr Vlok Symington… Mr. Vlok Symington, only said – and the court found that you and Mr Gordhan were misrepresenting what Mr Vlok Symington said.
Mr Pillay: No, the court didn’t find that.
Adv Mpofu: Alright, I’ll take you there. Remember Mr Gordhan said that before he approved this, he took the advice of six different people, including Mr Symington. Correct? Do you remember that?
Mr Pillay: Yes, I think I remember that.
Adv Mpofu: So the court rejected that?
Mr Pillay: My understanding of what the court rejected is that these consultations have any bearing on the lawfulness of the action.
Adv Mpofu: In other words, what the court said is that you and Mr Gordhan wanted the court to believe that you had consulted so-called experts, was false.
Mr Pillay: No, but you see here that Oupa consulted with Nic. Is that false?
Adv Mpofu: Nic who?
Mr Pillay: The same Nic Coetzee you were talking about.
Adv Mpofu: No, Nic Coetzee was not one of the six… I want to make sure. This is what you and Mr Gordhan said, “the consultation with the so-called experts who are said to have advised Minister Gordhan, much cannot be really said about them if considered in the light of the argument by the Public Protector that the consultation process Minister Gordhan seeks to rely on, does not assist his case.” Sorry, can you go to the judgment at paragraph 169.
Chairperson: Paragraph 169, what page?
Adv Mpofu: I don’t know. The retirement judgment, not the one of the Rogue Unit. Remember you and Mr Gordhan wanted the court to believe that this was a very well considered decision, even six experts and so on, were consulted and it was not some, thing. It was really arm's length. But the court said this, "much cannot be really said about them if considered in the light of the argument by the Public Protector that the consultation process Minister Gordhan seeks to rely on, does not assist his case. Minister Gordhan’s submission that he consulted with the best available experts, with extensive experience in the retirement and pension environment when considered against the hereunder arguments of the Public Protector, is not sustainable: Firstly, the consultation with Mr Symington took place some 17 months before Minister Gordhan considered Mr Pillay’s request for early retirement”, and this is what the Public Protector pointed out. This Public Protector who must be impeached. She saw through that particular line, because you couldn't rely on something that happened 17 months before. It said “There is no indication on the record that Minister Gordhan consulted with Mr Symington after he received Mr Magashula’s Memorandum.” So that was the lie number one, from you and Mr Gordhan.
Mr Pillay: No, no. Don’t say that I have lied about anything. I haven’t lied about anything.
Adv Mpofu: You did. Okay, did you say in your affidavit, at paragraph 12, “I associate myself fully with the detailed submissions of fact and law set up by Minister Gordhan in paragraphs nine to 71 of his founding affidavit”? Did you say that? Did you sign that?
Mr Pillay: Yes, I associate myself with that. I was not there in the consultations to tell you what happened to it and when. I didn’t lie about anything.
Adv Mpofu: But if you associate yourself fully, as you say with this, and it turns out to be a lie, then you must suffer the consequences, I'm afraid.
Mr Pillay: No, but the consequences are that the judgment said in the end that arrangement was lawful and that your client failed to make her case. That's what the judgment said. That stands.
Adv Mpofu: Do you know what a judicial review is? Do you know what the difference is between a review and an appeal?
Mr Pillay: No, you can explain it to me.
Adv Mpofu: No, some other time, Mr Pillay. So, the second lie was this… I am now on 169.2 of the judgment. The court then said “Secondly, Mr Magashula cannot be taken as an expert for the purposes of the advice Mr Gordhan was looking for. Mr Magashula concedes as much in his affidavit to the Public Protector that he is not a lawyer and was acutely aware of the prescripts pertaining to employee retirement. Thirdly, there is nothing presented to this court as evidence where Mr Donaldson”, that was the other so-called tax expert, “was consulted or what his advice was”. Then they quote a case that we presented to the… that legal advice must be presented on paper. "So similarly, in this case, where it is motion proceeding, it was incumbent upon Mr Gordhan to sort out exactly what advice he required”, and so on, “As a result, we do not know the remit of their discussion”. Next one, the other so-called expert “nothing contained in Mrs Hendricks’ affidavit amounts to independent legal advice by her or any other person which could be relied on.” Next one, “Fifthly, Minister Gordhan never had any direct contact with Mr Govender”. He also claimed to have consulted Mr Govender falsely, which was also a lie. Fortunately, Mr Govender gave an affidavit to the Public Protector and said he never spoke to Mr Gordhan and to the extent that he spoke to Mr Magashula, no mention of a Mr Pillay was ever mentioned to him. Why are you laughing? Is it funny?
Mr Pillay: Yes. Mr Chair, I must point out it is not a lie to say that Mr Gordhan spoke to so and so but the judges believe that person Mr Gordhan is relying on, that advice is not of value for what the judges require. That doesn’t make it a lie.
Adv Mpofu: I agree. But when he says that he relies on Mr Govender, who the judges say, he had never any direct contact with? Is that the truth?
Mr Pillay: On that matter, I think when you get an opportunity, you must ask Mr Gordhan but what I know is that both Mr Gordhan and Mr Magashula, at different times, spoke to Mr Govender. I spoke to Mr Govender myself, not in any detail and he said he is talking to Mr Magashula.
Adv Mpofu: Yes, but in his affidavit, Mr Pillay – we are hearing that for the first time – he says yes, he had a discussion with Mr Magashula but the name Pillay was never mentioned. He was asked about some broad principles about voluntary severance packages. That's fine. If you think that's the truth, that's your baby and it is between you and your God. Okay, then lastly, it says in 169.6, “Lastly, in the conversation Minister Gordhan had with Mr Olivier…” that was supposed to be the last so-called expert, “what we are privy to is that they were discussing, amongst others, the importance of retaining the services of Mr Pillay. Except for the retention of Mr Pillay at SARS, this conversation would not have assisted Minister Gordhan about the early retirement of Mr Pillay.” So the court debunked any reliance on the so-called experts that you and Mr Gordhan relied on.
Mr Pillay: Chair, with your permission, can you read 170 as well?
Adv Mpofu: 170? Yes, I can, “Having said that, it must, nevertheless, be borne in mind that Mr Magashula’s Memorandum is a submission made to Minister Gordhan by Mr Magashula as the Commissioner of SARS. It is not merely Mr Pillay’s application directly to Minister Gordhan. Mr Pillay applied to Mr Magashula, and this Memorandum to Minister Gordhan was Mr Magashula submitting a Memorandum to him in which he, Mr Magashula, asked and recommended for the approval sought by Mr Pillay to be granted. So, Mr Pillay’s application came to Minister Gordhan with the endorsement and recommendation of Mr Magashula, as the Commissioner, the ultimate employer responsible for the administration of SARS. It can be said that Mr Pillay’s application came to Minister Gordhan with high recommendation and commendation.” Mr Magashula was in on the scheme.
Mr Pillay: No, I think that is being very unfair towards Mr Magashula.
Adv Mpofu: Yeah, that’s why he was a respondent.
Mr Pillay: No but you… again there your client was unfair to Mr Magashula.
Adv Mpofu: Yes, that may be so Mr Pillay. That is not what we’re debating right now. Now, you asked me to read this paragraph. I'm telling you that all this paragraph does is to show that the Ponzi scheme had many members.
Mr Pillay: No, no. Again, you are just trying to throw your smears around.
Adv Mpofu: Yes, what are you going to do about it?
Mr Pillay: Well, it won’t help you.
Adv Mpofu: Yeah, alright. I'm saying, Mr Pillay…
Chairperson: Adv Mpofu, the time now is 4 o’clock, which is the time I indicated to you in the morning when you would end your cross-examination. I’d like you to wrap up.
Adv Mpofu: No, Chairperson. I can’t, as there is still a lot of material. I will try.
Chairperson: I will give you the next 10 minutes to wrap up.
Adv Mpofu: No, I'm not going to finish in 10 minutes. There's a lot of evidence.
Chairperson: I will be finished with cross-examination at ten past four.
Adv Mpofu: No, Chairperson, please listen to me. I'm saying to you that you might have said, in the morning, about four o'clock. I didn't know that it's going to take me 10 questions to get one answer; neither did you, by the way. So you must take that into account.
Chairperson: I have indicated that you must wrap up your cross-examination at 16:10.
Adv Mpofu: It's fine, you'll stop me if you want to, but I'm not in control of how the witness answers, you know that. So you're just being unfair again, Chairperson. Mr Pillay, you asked me for a paragraph… I wouldn’t have read it if I knew that I would be curtailed like this. But now that I've made that mistake… I’m saying that all this shows that Mr Magashula, who wrote the letter to Mr Gordhan, was part of the scheme. You were still saying that my client was unfair towards Mr Magashula, and so on. I’m saying to you, what happened Mr Pillay, and you know it, is that Mr Magashula wrote to Mr Gordhan, as if he was not part of this when he was the Commissioner of SARS, ‘Dear Minister, Mr Pillay wants to retire, can you also approve his contract, so that he can work here, and so on’. Of course Mr Gordhan signed and approved it. The thing that I’m putting to you, Mr Pillay, was that this was an unprecedented move. It was costly to the taxpayer. It was motivated only by the fact that actually Mr Gordhan should have recused himself from this knowing that it had come. Basically it was, what in corruption language, we call the ‘javelin’ where he as Commissioner of SARS is now receiving his own request, so to speak, as Minister later and approving it. That's just not done. But…
Mr Pillay: What is the question, Mr Chair?
Adv Mpofu: Ah, listen. Cool down.
Mr Pillay: I’m not angry. I’m just asking what the question is.
Adv Mpofu: Take a deep breath and relax, the question will come. I’m putting to you that proposition, because the fraudulent and corrupt scheme…
Mr Pillay: Chair, I object to that.
Adv Mpofu: But I thought you wanted me to finish?
Mr Pillay: No, I want you to finish and I actually want you to finish right now. You can't just throw things around like that, which you can't prove and have gone to court and which in court you failed to make the case.
Chairperson: Thank you Mr Pillay. Adv Mpofu, the witness is raising an objection.
Adv Mpofu: I have never heard of such a thing – a witness raising an objection?
Chairperson: You are hearing it now. That’s it.
Adv Mpofu: Yes, that’s what I am saying. Congratulations to me. Chairperson, please, why are you harassing me? What do you mean, ‘that’s it’?
Chairperson: You are not being harassed. Please proceed and conclude your work.
Adv Mpofu: You are harassing me. What do you mean, ‘that’s it’?
Chairperson: I indicated to you that the witness is uncomfortable with the issues you have repeatedly said to him, and he is raising an objection. As a Chair, I am noting and accepting that. I’m requesting that you refrain from that.
Adv Mpofu: But don’t say ‘that’s it’ to me, I’m not your little boy.
Chairperson: You must refrain from that.
Adv Mpofu: Thank you. Mr Pillay, the reason why I was packaging these things in series is – please forgive me – apparently I am going to be stopped in the next few minutes. That’s the only reason because normally I would break it down into smaller questions. Okay, let me put it this way. What we're going to argue at the end around these issues that I have canvassed with you so far, before I get rudely stopped, is that firstly, you are aware that there were so many bases on which the Public Protector independently relied for the conclusion that the Rogue Unit was rogue? What is your comment?
Mr Pillay: The Public Protector did not make any independent check on any of those allegations. She swallowed them hook, line and sinker. That's not what a Public Protector should do. So that is not an excuse. In fact, that says a lot about her and how she does her work.
Adv Mpofu: Yeah, no save us the editorial Mr Pillay. Did she not give you an opportunity in terms of section 7(9) to comment?
Mr Pillay: She did, but she paid no attention to it. And that's what the judgment found. She did not grapple with the evidence at all.
Adv Mpofu: Did she not give Mr Gordhan an opportunity in terms of section 7(9)?
Mr Pillay: The Public Protector goes through the motions. She does not do those things in the required spirit. She doesn't deal with the evidence; the judgments go into some detail on that. She doesn't assess it. On the other hand, when it comes to the allegation, she accepts it in total.
Adv Mpofu: Do you know that she… Well, you should know because you were there, that she worked with investigators who did all the background work that you are talking about?
Mr Pillay: Are you informing me?
Adv Mpofu: No, I’m not informing you. I’m asking you, when you were there, did you see other people – maybe they didn’t call them investigators?
Mr Pillay: Yes, I did see them.
Adv Mpofu: Yes, so you think all those people were just going through the motions. Why? Because they hate you?
Mr Pillay: No, I don’t think that is the issue. We know that these matters can be investigated and I think, by the way, it is the Public Protector who has got to explain why she didn't do these things. I don't have to give you a supposition on why she didn't do that.
Adv Mpofu: Yes. Okay, that's the first proposition. The second proposition is that you as the mastermind or the boss or whatever, of the so-called rogue unit, were aware that the Rogue Unit was committing crimes, including treason, such as spying on the NPA?
Mr Pillay: I'll say it again, the foundation of the unit was lawful. Insofar as its activities are concerned, the Public Protector didn't examine its activities. She didn't interview a single person from the Unit. In fact, the equipment, which she was insisting must be there, it's not there. She did not interview anybody on all of those things. There are no affidavits. That is the point and until these things are gone into they will remain mere allegations. I deny that I was involved in unlawful activity.
Adv Mpofu: Right. We will argue you that from the evidence that you've given it becomes clear that the only reason that you were elevated to such heights as Deputy SARS Commissioner was not because you are some particular whiz kid, but because of your kinship, comradeship, friendship, whatever you call it ,with Mr Gordhan.
Mr Pillay: That is absolutely not true. If you know Mr Gordhan, you will know that it is not true. He is not a person who acts in that way. As far as I know, he is hardest on the people that are…
Adv Mpofu: That are his friends.
Mr Pillay: No, No. I dispute that I am his friend. That is not true.
Adv Mpofu: Really?
Mr Pillay: Yeah, that is not true.
Adv Mpofu: Okay. I also put to you that unique package that you and Mr Gordhan devised, at which he played for both sides, as SARS and Minister of Treasury, was a contrived scheme to rob the taxpayer of money and to give you free education on behalf of your children. I know you deny that. As we don’t have time, I will point out to the five versions you placed on why you entered into the package: you will find that at page 979, item 1.1, Bundle E, Chairperson.
Chairperson: Thank you, Adv Mpofu. That is your last take.
Adv Mpofu: Are you going to stop me in the middle of a sentence?
Chairperson: No, once you conclude that, that will be the last take.
Adv Mpofu: No, Chair. Let me conclude this and then we’ll talk. Otherwise I will be wasting your time. It says that…these are the versions given at different stages. The first one was wanting to fund the education of your children, as indicated in your initial Memorandum of 25 August 2009, which you will find at page 39 of your application. The second version was to “pursue other interests" as stated on 8 October 2009 by Mr Nic Coetzee; who you and I have discussed. Do you understand that?
Mr Pillay: Yes.
Adv Mpofu: The third one is, “Health reasons and wanting to serve in a different and less exhausting capacity" as indicated in your Memorandum of 27 November 2009. That's the one we went through. You remember that?
Mr Pillay: Yes.
Adv Mpofu: The fourth one was “for personal reasons.” That’s what you also said here, “as indicated in the application for approval letter to Minister Gordhan on 12 August.” Remember that?
Mr Pillay: Yes.
Adv Mpofu: That's the letter from Mr Magashula to Mr Gordhan. Then the fifth one was you needed to follow your wife and children to Holland, as stated by Mr Magashula in his affidavit to the Public Protector on 20 March 2019. Do you remember that version?
Mr Pillay: Well, as you say, that is from Mr Magashula.
Adv Mpofu: Yeah but he got it from you. How did he know your children were in Holland?
Mr Pillay: Well, half my family has moved to Holland, yes.
Adv Mpofu: Are you in Holland now?
Mr Pillay: Yes.
Adv Mpofu: Are you enjoying your retirement?
Mr Pillay: Not really because the State Capturers are still in…
Adv Mpofu: And do you get paid in respect of this so-called retirement?
Mr Pillay: Yes.
Adv Mpofu: On that basis, then why did you go to court and want to escape on a technicality that you did. The court agreed with you that the matter is more than two years old and therefore the Public Protector had no jurisdiction – which is what was found when even today you are continuing to get the money. How can that be in the past when you are continuing to enjoy the money of the South African taxpayers?
Mr Pillay: No, that’s a terrible…
Adv Mpofu: Let me finish, Mr Pillay. Why did you and Mr Gordhan have to hide behind that technicality, albeit the court agreed with you?
Mr Pillay: Okay, so I'm hearing the words of a frustrated man. Again you are just throwing insults.
Adv Mpofu: Which one, me?
Mr Pillay: You.
Adv Mpofu: I am frustrated, as I am being gagged.
Mr Pillay: No, all day you have been at this thing, for the whole day.
Adv Mpofu: You volunteered to come here, Mr Pillay. You thought you wouldn’t be here for the whole day?
Mr Pillay: No, no. You must remember that I contribute to a pension, and the employer contributes to a pension. Remember I said that Mr Magashula said that SARS would have a saving also. I deny that this is a scheme. The very fact that you can find all of these documents show there was no scheme in hiding all of these things. Everybody knew that I took this early retirement. There is no attempt to hide any of these things. I must point out again, you came with all of these things to court, and at every level in court and as you pointed out, there were some arguments we lost and there were some arguments you won, but overall, your client didn't make the case. That is the issue.
Adv Mpofu: Therefore? Should we stop the Inquiry because the client lost?
Chairperson: Thank you, Mr Pillay and Adv Mpofu.
Adv Mpofu: Chairperson, for the record, I am not finished with my cross-examination.
Chairperson: Thank you, Adv Mpofu. You are well aware, together with the Evidence Leaders, as I indicated in the morning, that the witness is only available for today and not any other time.
Adv Mpofu: Is that forever Chairperson? When you say at any other time, do you mean forever amen.
Chairperson: I did not say that.
Adv Mpofu: Oh, okay. I’m asking.
Chairperson: We’ll be back in 10 minutes and I will invite the Members to engage with Mr Pillay.
Questions by Committee members
[Two questions by Mr G Hendricks (Al Jama-ah) were missed as hearing broadcast was delayed on Zoom]
Mr Pillay: I'll tell you from my experience in SARS – SARS, at one stage, had 15 000 staff at one stage and the enforcement wing had about 3 000 people. So we literally did thousands of audits and investigations. The first issue, and there are separate issues, is how to deal with complaints and allegations. There has got to be a sifting process – a filtering process. So you put it through certain filters. These are not intensive investigations. These are what I would call light investigations. And it's like I sent in my evidence. For example, it would be, is this an anonymous complaint? You should be clear, are you accepting anonymous complaints or not? Secondly, the complaint or the allegation: is it specific enough; or is it very general. Then can we get this in the form of an affidavit, because that also gives you another filter. If people are not prepared to make affidavits, it might indicate that it is frivolous. So there are a number of things one should do, which is pre-in depth investigation to try and sort the big funnel of complaints and allegations that you get. It would include, in my view, that if somebody else has done a report or claims to have done an investigation, or there's an inquiry, it would include understanding who did the inquiry: what were the terms of reference; was everything done properly according to the mandate; were people given the opportunity; had you applied the audi rule; and is the evidence comprised of sworn affidavits? So that's the part where we'll be dealing with the allegations and complaints. You have to do that. Because in the case of the IGI Report, any reading of that would say these are the terms of reference but why do you end up investigating SARS when what you're supposed to be investigating is a rogue unit in the SSA? That will come. Then you ask are you implicating Mr Gordhan, Mr Pillay and so and so? Where are their responses to these things? So without going deep into it, you would ask those questions. By the way, you would ask the same questions about the Sikhakhane Report. You don’t go into absolute detail about it, it's about how was this made; who did it and who was interviewed; what's the terms of reference. And when you see things like the terms of reference change, you know the warning bells should be ringing. There's an element of this in the operations management of a large number of cases because you can't do everything, you have a limited amount of resources and the capability of your resources vary. So you want to have the filtering done well. Then you want to allocate the right cases to the right capabilities, so that you can match complexity with skill. It's doable, it will take a bit of time, maybe three, four years, and you'll get better at it. I hope I've answered the first question. Then, Hon Chair, the second question, I think, is a general question about accessing the pension funds. In my case, I should point out that I was… I think when I accessed the pension fund, I was about 57 or 58. And the regulations allow, I think, to access the pension funds from about 55. People from about 55 are allowed to access the pension fund. The issue here then is not accessing the pension fund. There are two issues: the one is that it's automatic, if an employer agrees on the retirement from the fund, that the employer becomes liable for the penalty. I think that was the issue. Then the third issue was the rehiring and generally what they say is the rehiring should not be on exactly the same conditions. I and the then Commissioner are saying my job changed from a highly pressurised job to enablement. Thank you Chair, I hope I have answered.
Chairperson: Thank you very much Mr Pillay and Mr Hendricks. I now recognise Hon Nodada.
Mr Nodada: Thank you so much Chair. Before I go on, I’d like to know if I am audible, Chair?
Chairperson: You are very audible.
Mr Nodada: Thank you so much. Good afternoon Mr Pillay.
Mr Pillay: Good afternoon.
Mr Nodada: Can I please ask my question then you will respond. Then I might have follow ups based on those responses. Mr Pillay, can I understand based on you affidavit, you've mentioned that the core of your affidavit is that you've been found guilty by reports of the Public Protector (PP): namely, three reports on the SARS intelligence unit, around your pension, and one report being currently under review. Would that be my correct understanding of your affidavit or could you clarify that?
Mr Pillay: Yes, that’s the scope of the affidavit.
Mr Nodada: You indicate that in two of the three reports, you were ignored, or irrationally dismissed? Is that correct?
Mr Pillay: Yes, well in all three. In fact, in the third report, I wasn't told anything and she's published findings. I knew nothing. I read in the newspaper that there's a finding against me. In the three reports, what we're saying is that in the first two, I did get the notices, we responded, but she paid no attention to the evidence. In the third one, I wasn't even asked for anything.
Mr Nodada: Alright. So let's jump into some of the details that I would like to understand, Mr Pillay. In the pension or retirement matter, it was indicated in one of the reports that you benefited fraudulently and it made findings on that. I won't go into details. But you then indicate there were many errors that have taken place in getting to the conclusion of this report. Do you mind sharing with us what those errors are, that she managed to draw conclusions on this particular issue? The reason I ask this question is because in the previous… One of the witnesses, Mr van Loggerenberg, who came to give evidence to the Committee, indicated errors. A written question was given to the PP and she said was not aware of any errors, according to her. And obviously, we are busy compiling a list to check whether she is aware of the errors that are alleged in that particular testimony. I want to check with you what are the errors particularly on the retirement pension report that she had made and drew conclusions on?
Mr Pillay: Well, one of them is that we had advice from Mr Vlok Symington, who within SARS is an expert on the pension funds. This matter of my pension has done the rounds also with the NPA and the fact that Vlok applied his mind and he gave advice was suppressed. Then there was David Maphakela, who was an attorney hired by SARS in 2014, after I had left SARS. He also gave an opinion that this was lawful. She ignored those two pieces of evidence. She ignored the evidence that I and Commissioner Magashula gave, which is that there will also be a saving for SARS. I think the third thing is that I can't give this to myself. I made the request to the Commissioner to decide on. The Commissioner applied his mind, and he decided that, as the Commissioner, he wanted to still have me around. And on that basis, he made the decision. Now that judgment is in the annexures, and there are quite lengthy comments from them. I just want to mention some of them. “Firstly, the PP failed to cross the jurisdictional hurdle of the two-year limit”. From my understanding of this, the judgment is simply when you decide that, in spite of it being two years, you want to look into these matters, then you have to say there are exceptional circumstances, and you've got to be honest about it and you've got to put it up front, which she did not do. It then says in paragraph 57, “regardless of the absence of jurisdiction, the Report is fatally flawed and falls to be reviewed and set aside.” In other words, after finding out in the first instance, this matter should not have been entertained, the judge has said no, let's look into the rest of the thing and then they say, regardless of the absence of jurisdiction, the report is totally flawed and falls to be reviewed, and set aside. So, 123 says, “we are of the view that the errors of law committed by the Public Protector in coming to her decisions and/or findings is material. We will show that the Public Protector was wrong in law.” So this is not only about facts, it's about law. She was the one who made a mistake of law. Then it goes onto a number of things and one of the big things is that she insisted that retirement actually means, in the context that we used it, that I should have left SARS and I didn't leave SARS and therefore I hadn't retired. The judges looked at it and they said, no, this is what retirement means; you're wrong to come to that. I think it's long. But if you can look at the judgment, you will see all of those. Thank you.
Mr Nodada: I think you've covered me, Mr Pillay, in identifying some of these errors, because we want to better understand them as a Committee considering that we're dealing with the Public Protector in the motion before us. The second issue, Mr Pillay, was around the establishment of the Intelligence Unit at SARS – I'll refer to it as that. Was the establishment of this particular unit ruled illegal or unlawful in any court of law, Mr Pillay?
Mr Pillay: Thank you, Hon Member. On the civil side, and that is in report number two, the court has gone through this in some detail. And firstly it says to the Public Protector, you have these allegations but you did not interview anybody about that – I’m not talking about investigations – and you didn't verify the allegations; so you accepted the allegations uncritically. Then you give notice to the implicated parties. They send you sworn affidavits, unlike the complainants who have not given any sworn affidavit and you dismiss the evidence totally out of hand. I mean, it'll take too long but if you go into the judgments and you look at them, it actually says that she as a Public Protector is dependent on mere assertion. In paragraph 192 it says, "This is further evidenced in the way the Public Protector approached Mr Pillay’s evidence in the review application. In her answering affidavit she adopted a dismissive attitude towards what she termed Mr Pillay’s ”views”, and dealt almost exclusively with Mr Gordhan’s various affidavits. This is clear from the following passage taken verbatim from her answering affidavit: 'The Public Protector was not bound by Mr Pillay’s views on affidavit. She considered them but found that they were a defence of an indefensible establishment of a spying unit within the SARS'.” So she's actually made up her mind. If you go to 194, it says, “It is important to note that no other party in these proceedings, including the Public Protector, and the EFF, has sought to respond at all to what Mr van Loggerenberg testified in the affidavit deposed to by him. What he says thus stands entirely uncontradicted and unchallenged. The Public Protector has put up no facts or evidence, either in the Report or in her affidavits filed in this matter that refutes the evidence provided by Mr Pillay (and now Mr van Loggerenberg). All that she's done in her answering affidavit is belabour evidence put up by Mr Pillay as simply his "views" and opinions... It is plain that the Public Protector has approached this investigation with an unwavering commitment to her own preconceived views and biases." Then let me just finish that off with just two things very, very quickly. The judgment examines the founding of the unit, the legislation, and it says, the existing legislation does not say the unit was unlawful. It's not unlawful. Then it says, if you want to look at the activities, then you must look at the activities of the unit, the unit carried out 81 projects. The Public Protector did not look at those projects. The only thing she's focused on is one particular thing around which there are allegations. And I think this is the big problem, you have to come at it, as the precedent says in previous judgments, you’ve got to come at this with an open mind.
Chairperson: Thank you, that will be your last point.
Mr Nodada: Alright. Let me just bundle it up in this way, Chair. Mr Pillay, two things, which you can answer at the same time. In all of these three matters, but in fact, the two that have been finalised because the other report is under review, have there been any cost implications? I ask this because there's been an allegation around reckless litigation in the Office of the PP. Have there been any costs that have been incurred or awarded by the court that might have cost the Public Protector? My last question to you, Mr Pillay, in dealing with the motion, on these three reports that you've written down in your affidavit, what would you say constitutes bias, misconduct or incompetence of the Public Protector? Thanks Chair.
Mr Pillay: Hon Member, there is actually a part of the judgment on the second report that actually deals with the bias and it's long, it's about four or five paragraphs, and the judges actually conclude that she has taken a biased view towards me on that issue. It's there, I don't want to read it as I think it will take time. But if you look towards the end of that judgment, you will find it there. On costs, the legal team has had that question from the Evidence Leader. They're working on it, but I understand it is in the region of about R4 million.
Mr Nodada: Sure. Okay, thank you.
Chairperson: Thank you, Mr Pillay. I now recognise Hon Mileham.
Mr K Mileham (DA): Thank you Chairperson. You will excuse me if I don't put my video on, I'm driving so unfortunately, that doesn't work. Mr Pillay, thank you very much for your evidence so far. Just a couple of quick, easy questions. You've indicated on several occasions that you are not a lawyer. So as a layman, is it your understanding that the Constitutional Court's decisions are the end of the road? That that's it, you can't go further than that?
Mr Pillay: Indeed, that is my view, uneducated view on it. In a way, and I'm not talking about me, but it would be disastrous for the country if we say that the court's judgments are just an opinion, although I agree that in applying the judgment to a particular situation, we must look for relevance. Thank you.
Mr Mileham: Thank you. In the case of your pension fund payout, there has been no finding of unlawfulness in that process. Is that correct?
Mr Pillay: That's correct.
Mr Mileham: And that's gone all the way to the Constitutional Court and they have said, there's no problem here with the lawfulness of the payout?
Mr Pillay: Yes, indeed. It went through even from the High Court upwards, it goes through…It's about 15 judges in the end. It is final.
Mr Mileham: So let's put that to one side, let's not dispute the facts of the matter, because that's now been finalised by the judges. What did the judges say about the conduct of the Public Protector in terms of that particular matter?
Mr Pillay: They say and, of course, it's in more detail in the second case, but basically, it's the same thing. The one issue is that she didn't have jurisdiction because the issue was more than two years old. That itself is not serious, it indicates that she must have special reasons. I think that is the common problem here, which is she doesn't believe that she actually has to provide the reasons. I think that's the one issue. The second issue is that, so somebody makes an allegation, and I'm not sure who but I think it's in this case. The allegation is made and it is made anonymously. What I know, and what the court says is that, in many of these instances, you have to have a first level check on the people who are making the allegation, before you run off and do a deep investigation. And this is what happened in this case. It is precisely what happens if you run off on a deep investigation. So one should be looking at those things. By the way, the court doesn't actually say that, they say it indirectly. They said that the only people who have provided evidence in sworn affidavits was Mr van Loggerenberg and myself. A lot of these allegations are not in the form of sworn affidavits. I think that's the other matter that they pointed out. I think one of the other things is that when it comes to remedial action, we asked, look can you please tell us what's the remedial action so that we can then respond to it before you formalise it and she refused. And the court found that because the nature of remedial action is so intrusive that there should be audi, which there wasn't. There are other matters but I've now forgotten.
Mr Mileham: Mr Pillay, maybe I can ask you this with regard to the pension fund matter – I'm going to basically ask it in the form of yes or no questions – did the court find that her findings were legally sound?
Mr Pillay: Her findings were not legally sound because, for example, she found that I did not retire.
Mr Mileham: Okay. Did the court make a ruling with regard to her findings of fact?
Mr Pillay: Fact and law, yes.
Mr Mileham: And the rationality of her processes?
Mr Pillay: It's often referred to as irrational.
Mr Mileham: Okay. I'd like to move on to the Intelligence Unit matter. I have just one question and that is this: Were any of the reports that were relied on by the Public Protector still in good standing by the time the Public Protector issued her report?
Mr Pillay: I don't think so. I think some of them would have fallen, when she was in the process. Certainly, Kroon’s apology came via Judge Nugent’s Commission. She would have known and we raised it. We raised the issue of Kroon withdrawing his statement. So a lot of these things, she knew. The NDPP’s withdrawal came rather late, I think in about 2020. That would be the one that came late, but most of the other ones which could fall, had fallen. I say that because it's not possible to withdraw somebody's opinion, which is what the Sikhakhane Report did.
Mr Mileham: Okay. My final question, then, is with regard to the intelligence unit matter, and in particular, the IGI report, the court has found, and correct me if I'm wrong here, the court has found that that report should be set aside. Is that correct?
Mr Pillay: Correct.
Mr Mileham: It has no value whatsoever and raising it now is meaningless?
Mr Pillay: Absolutely.
Mr Mileham: Thank you very much Mr Pillay.
Mr Pillay: Thank you.
Chairperson: Thank you Hon Mileham. I now recognise Hon Sukers.
Ms M Sukers (ACDP): Thank you, Chair. Mr Pillay thank you for coming before this Committee. I have a few questions that I want to ask you. And my first one is that could you explain how the barriers of apartheid and political activity limited your educational opportunities and how your work in exile prepared you for your future success?
Mr Pillay: Alright, look, I finished matric in 1970 and I went to work in the construction industry but in an administrative position. I roughly worked there for seven years. Well, until 1977 when I went into exile. I was part of the MK and part of the ANC political underground and I did a number of things there. I was in the senior political committee and I was in the political military committee in Swaziland and finally, I was a project manager of Operation Vula. So you could say in a sense, I did managerial work. I did clandestine work, underground work and I played a managerial role there and that helped prepare me for the job situation. I came back to South Africa and in 95 I was given work to do in intelligence in the strategic affairs office. I worked there for some time until I went to SARS. Somewhere in between when the negotiations were taking place I participated in Codesa and then I also participated in the TEC Administration. Thank you.
Ms Sukers: So much of your skills you have developed as part of your work life, rather than at an academic institution?
Mr Pillay: Yes, true.
Ms Sukers: The process of this Committee is new and it is first of its kind. You stated today that you felt badgered. Did you feel the Committee procedures assisted you enough to protect you in giving your evidence?
Mr Pillay: I thought it was a bit better today. I think in the previous days, I think, witnesses were badgered even more. But in general, I do think that it should not be necessary to badger witnesses. The questions should be put, the answers given and then the Evidence Leader, as well as the representative of the Public Protector can have their view and the Committee would analyse all of that and make the decision.
Adv Mpofu: Chairperson?
Chairperson: Just a pause, Hon Sukers. Adv Mpofu?
Adv Mpofu: Yeah, I need your protection, Chairperson. I can’t allow Members to… If you want to attack me you must do frontally, don’t use a witness. I also cannot be insulted by a witness regarding whatever happened in the past. I explained to this man that I was not badgering him, I just wanted an answer. Therefore, I don't know why, firstly, you allow for this to be raised. It's just unfair, Chairperson. If people don’t know the meaning of cross-examination, I am not responsible for that. Thank you.
Chairperson: Thank you Adv Mpofu. I guess that would have been a point of order. Just to indicate that point of order is not sustained. The Member is in her own right to ask questions to the witness and there was no mentioning of you in the process.
Adv Mpofu: Oh, I am not a representative of the Public Protector? Who is the representative of the Public Protector?
Chairperson: No, Adv Mpofu. He said the Evidence Leader and the Public Protector’s legal team would have a view, and the Committee would then make a decision.
Adv Mpofu: That’s fine, Chair.
Chairperson: Proceed, Hon Sukers.
Ms Sukers: Thank you, Chair. Mr Pillay, as part of your affidavit, a quote is referenced.
Adv Mpofu: I am sorry, Hon Sukers. Chairperson, I apologise for interrupting the Member. I’m simply saying, Chairperson, that I expect you to protect me as you protect everyone else. If this Member from the ACDP, who is speaking now, has a problem with anything I did, I am here to deal with it. But let us not get it via Mr Pillay, I am here and I am available.
Chairperson: Thank you, Adv Mpofu. I protect everybody in this meeting. I also want to protect Ms Sukers now. Please proceed.
Ms Sukers: Thank you, Chair. Mr Pillay, as part of your affidavit a quote is referenced coming from the Public Protector report that states ‘the views on state capture are just that, views.’ What are the views that are being referred to in this extract?
Mr Pillay: I think I made the point in the affidavit – I’m obviously just talking from memory right now – that the narrative being pursued by the Public Protector is a narrative that has been made as part of the narrative of the people who've put us under tremendous pressure over the years. That is, in my view, part and parcel of the State Capture programme. That is my view.
Ms Sukers: This is my last question. Mr Pillay, who would benefit from the destruction or the closure of the SARS High-Risk Unit? What was the purpose or the reason for the existence of the unit?
Mr Pillay: I don't think there's a simple answer to that. SARS was a very efficient and effective institution. And the truth is we made a lot of enemies over the years. As we've heard over these days, there are disgruntled ex-employees. There are people who have been under investigation by SARS and there are actually also criminal elements. A lot of it is about political fixers. The criminal elements include the tobacco mafia; and they all have been trying to get at SARS over the years. We have given a long list to the Public Protector and to other people. We have raised these issues over the years. So we have had, probably from about 2009, continual attempts to breach our walls and they only succeeded to really breach our walls in about 2014. Included amongst those groups would be state employees. And in my view, particularly some of the people in the SSA. Where I say that was the real rogue unit, and they managed to flip the narrative around and put the focus on SARS. At that time, in my view, and it was probably a biased view, SARS was the best organised state institution. And even though it was small, we had the best organised enforcement capacity in the country. We reached a point, and it's very, very important, where people learned that if you keep pushing the boundaries in South Africa, you'll get your way. One of the few places that stood consistently is SARS, over the years, but in my view, we lost political cover from about 2013 or 2014. I've raised these issues, by the way, directly with the then President, saying that you should not be allowing people to destabilise SARS. If you don't want us to be there, tell us and we'll go. I also made the President aware, around late 2013, early 2014, that his legal manager was organising meetings with the person that was destined to be the next Commissioner. So there was a whole organised programme, which of course, we now come to know as State Capture and they finally broke through the gates of SARS. We stood firm on not allowing any politician including ANC politicians from abusing SARS. So we accumulated a lot of enemies over time. Thank you.
Chairperson: Thank you, Mr Pillay. I now recognise Hon Mananiso.
Ms J Mananiso (ANC): Good afternoon, Chairperson. Let me also greet our Evidence Leaders and Adv Mpofu and his team, as well as welcoming Mr Pillay. Mr Pillay, considering the fact that the mandate of this Committee is to determine whether the PP is incompetent and that she misconducted herself in the Office. Do you believe she is incompetent or she did misconduct herself, or both?
Mr Pillay: Thank you, Hon Member. It is a loaded question. What I can say is that in the two judgments, which we have, and the one is finalised, and one is pending on leave to appeal. The judgments are really very clear. I quoted some of it today, from a document I was reading. Remember that these are the different tiers, in one matter I think there's about 14 or 15 judges. The other matters a bit less because the Constitutional Court hasn't yet engaged directly with the matter. They use words like ‘irrational’, they use words like ‘bias’. They used words like ‘did not clarify the allegations’. They used words like ‘ignored evidence’. It's actually replete throughout. On my small matter of my matriculation certificate, it is unbelievable that it became such a big issue. I was in her presence and she asked me if I had the certificate, I said yes, I have it. In the accusations also is that she has a preconceived view of things and she doesn't allow the facts to interfere. And more than the facts, which I understand are open to interpretation, there are many times it is said this is wrong in law. So then the Committee has to apply itself. And again, to be fair to the Public Protector, you've got to examine all the cases and weigh up and on balance, make a decision. Thank you, Chair.
Ms Mananiso: Okay. My second question to you, Mr Pillay, is that do you think the PP used her powers to embarrass and humiliate you when she had asked about your matric certificate in front of the public?
Mr Pillay: Sorry, are you talking about today or during the process of the litigation?
Ms Mananiso: During the process of the litigation.
Mr Pillay: I really don't know. I can't fathom why this would happen unless she’s really decided this is an evil person, this is a bad person and this is a target and we have to do what we can to fight this person and get rid of this person. It's possible, but it's very difficult for me to actually venture into what it was all about.
Ms Mananiso: Can you answer me yes or no, as to whether you were humiliated or not?
Mr Pillay: Oh, as an individual, I have been under the cosh since 2014. My family tells me that I have a very strong ego and it is not possible to humiliate me. I’ve said that I have no ego, so people can insult me, so it’s really not a problem. I think the bigger issue is that a lot of people have suffered and not only in SARS, I mean, there's Anwa Dramat and there's Robert McBride. A lot of people have suffered and they've been thrown out of their jobs and they've been charged. And institutions have been ruined, which is probably the bigger issue. Thank you Hon Member.
Ms Mananiso: Okay, as a follow up question to what I have asked you, do you think that the PP was using the might of her office to harass you?
Mr Pillay: Well, it's difficult for me to say but I want to maybe cite an analogy. Just before I was suspended in SARS, and eventually thrown out, I was walking through the passage. I went to our HR manager, who was a seasoned HR manager, and I said to her, look, you’re to charge X, please don't do this, because it's very difficult. If you do this, it will put the new Commissioner in a difficult situation. One of the things she said to me stuck in my mind, and I think it describes what some people show, and she said, ‘these people must know we mean business.’ In some instances, some of this is about setting an example. I got a message indirectly from the then Minister Lynne Brown towards late 2013. The message said, the people in SARS are going to be attacked and they're going to be driven out of their jobs. And they are going to become untouchable. That message was given to us by a journalist, she drew an affidavit and when we went to the media ombudsman to challenge the Sunday Times – we did present it there. So the affidavit exists. I think to some extent it is about teaching people to listen and not only punishing the people itself, but about teaching other people that we mean business. Thank you.
Ms Mananiso: Okay. As I conclude, in reference to paragraph 8.3 of your affidavit, where you indicate that the PP relied on untested hearsay and on gossip relating to the SARS investigation unit, please elaborate what informs these assertions?
Mr Pillay: Okay, so let me say one thing that the allegations about SARS started around, I don't know 2009/2010 and the allegations kept getting added on. There are a number of what we call dossiers. They’re usually poorly written dossiers, and they circulate, they go to media, they go to politicians, they've gone to ANC politicians, they go to opposition politicians – trying to besmudge the name of SARS. Some of them are weird. Some of them are about we have an arms arsenal in SARS, that we're trying to control the government. Some of it is very, very personal. I'm supposed to have children of an employee in SARS, by the way, which employee doesn't have any children at all. It builds and builds and every time you resist it. By the way, over the years, we've gone many times to the newspapers. When politicians have received distortions, we've gone to them and explained things to them. And when it doesn't get traction, it morphs, it keeps changing. I mean, at times, we were accused of being anti-certain people, because that person is presumed pro-Zuma. Later the accusation is that we are against that person because he’s anti-Zuma. So this has become a convenient thing to use. So there's all sorts of allegations flying around and the ones that the Public Protector investigated and others, is only part of it. There are lots of other allegations. And all we are saying and I think the judgment is saying is that first look into the allegations before one runs off into an investigation. Thank you, Hon Member.
Ms Mananiso: Thank you, Mr Pillay and Chair.
Chairperson: Thank you. I now recognise Hon Herron?
Mr Herron: Thank you Chair and thank you Mr Pillay. Mr Pillay, I'd like to just start with the letter that you sent on 26 August 2014, which was referred to in the judgment. In cross-examination one of your first statements was that the City Press article of 16 August 2014 prompted the IG investigation and an internal investigation by Sikhakhane. The letter of 26 August 2014, which is around that time, which was sent to the Public Protector's Office, and that would have been Adv Madonsela at the time, contained 23 documents in support of the submission you made to the Public Protector. So what was going on in SARS before…
Chairperson: Just pause, Hon Herron. Adv Mpofu, please mute?
Adv Mpofu: Oh, sorry Chair. My hand is up. I wanted to come in before Mr Herron, but I'll talk later.
Chairperson: Proceed, Hon Herron.
Mr Herron: Mr Pillay, I just wanted to understand what was going on before at SARS that you had 23 documents that you could submit and supplement your original founding affidavit?
Mr Pillay: Thank you Hon Member for the question. As I was saying, there have been allegations about SARS for a long time. And it began to take the form of dossiers. And by the way, the allegations were about SARS and later it's also about the National Treasury. Usually they are 10/12 page documents and they make all sorts of allegations. Our response to Adv Madonsela was about the allegation about that unit. And the PP response at that time was okay, we looked at this and the only thing we're interested in is the human resources side when it came to the recruitment of people into the unit was that done properly? And we responded in the end to all of these things. I'm sure if we put all of these dossiers together and all of these allegations, they would make quite a few large files. They've been there for a long time and they have been in the paper. I mean, for example, Michael Peega, who we talked about earlier – he was a poacher and we fired him – and he said, when he was leaving – he was trying to get more money from us – that "I am going to the media and whoever I can go to" and he did, as he produced a dossier of his own. So there are a number of these things flying around.
Mr Herron: Mr Pillay, the documents that you submitted with your letter, were they investigations that were done internally, or were they all these dossiers that were floating around that you then forwarded to the Public Protector?
Mr Pillay: If my memory serves me, this was a long time ago, these would be relating to allegations and it would give our side of the picture. It would go into why these allegations are not true. And as I say in the end the only thing that Adv Madonsela wanted was more information on the recruitment.
Mr Herron: Thank you. I've been trying to keep track of all these investigations that were done. You say that… I mean you in your evidence you said the City Press article prompted the Sikhakhane investigation and then there's the Brassey investigation or report; there's the KPMG Report; Mr van Loggerenberg mentioned the Kanyane Report. There’s the report by Judge Kroon. Then you mentioned that Adv Trengove provided an opinion and the Mashiane attorneys investigation. Is it true that all these reports found that the investigative unit was an unlawful unit?
Mr Pillay: Let me correct something. So there was an article on 10 August 2014 that talks about a rogue unit at the SSA. As a result of that, Minister Mahlobo instituted an inquiry which was conducted by the IGI. Terms of reference were to be focused on a rogue unit in the SSA. That happens almost the same time as there are articles in the Sunday Times initially about Johan van Loggerenberg and a person called Walter, where she made a lot of allegations about van Loggerenberg. She made these things public and in newspapers all over. She wrote us pages and pages of documents. As a result of that I appointed the Kanyane panel to look into this matter. They looked into the matter, and in the end, they couldn't go forward because they asked the lady to put her allegations down on an affidavit and she refused. But the allegations continue. I then decided, no, maybe this panel wasn't good enough. Let me appoint Adv Sikhakhane. The terms of reference were in the context of the accusations against Johan van Loggerenberg. Again, which allegations began to morph. There were allegations that he had leaked or given information to her and it was growing. So that was the terms of reference. There were no terms of reference to look into the so-called controversial unit, but somewhere in midstream just before or just after the appointment of the new Commissioner, the terms of reference changed. The report says the situation lends itself to a change of reference, or terms of reference… It’s a very queer formulation. Then the focus shifted to this unit, which coincided with the shift of focus in the IGI also to the SARS unit. And obviously, the Sunday Times comes slightly before that and the Sunday Times kept this up for roughly 34 weeks of articles. So that's laid the basis. We've had all the allegations before but that created an absolutely new setup. Now, coming back to this specific problem… alright, let me say one more thing, the new Commissioner Tom Moyane institutes, within weeks of being there, the appointment of Triple M attorneys, and starts the investigation. In fact, Judge Nugent says basically this was a man with a mission. He came there and he had strategized a year earlier, at least a year earlier with Bain, and one of the things was clear is that you need to neutralise certain people. Judge Nugent's view is that certainly myself, Peter Richer and others were first in the firing line. So all of these things were instituted, in my view, to get rid of us and to take some control of the institution. Now, coming back to the specifics. The Sikhakhane report is wrong on whether the laws were breached. The judgment is now clear. But before the judgment, counsel Trengove gave legal advice to SARS under Tom Moyane, which was suppressed. We only got to know about it later when it was discovered.
Mr Herron: Sorry, Mr Pillay, the Chair is not going to give me a lot of time, and I’ve only asked two questions. I’m really trying to understand all of these reports. I mean, I hear you, that they've been set aside and they're wrong and all that but I mean, Brassey, Sikhakhane, KPMG, these reports all found that there was a breach of the law. Kroon made a statement, which he later retracted. We understand all that. But I'm trying to understand there's a long list of investigations, post the City Press article, and they all find something wrong. I mean, we saw senior counsel at the Prosecuting Authority draw up charges. Am I correct?
Mr Pillay: Yes, indeed. And all of them have failed.
Mr Herron: I mean the reason I'm asking this is that we have to decide whether the Public Protector…or make a recommendation as to whether the Public Protector is guilty of misconduct or incompetence. I mean, if she's wrong about all of this, which the courts have found, she's in pretty good company being wrong?
Mr Pillay: Well, Hon Member, it depends what you mean 'good company' – the Sikhakhane Report is an abominable one.
Mr Herron: Sorry, what I mean is that KPMG is a reputable firm, or it was at the moment. Brassey is an advocate and there is no reason to question his integrity, is there? Judge Kroon, the National Prosecuting Authority…
Mr Pillay: I think it talks to the power of authority, about influence and how people wield influence and get things to be done. I must point out again, it's not just SARS. It happened to Robert McBride. It happened to Dramat. It happened to your shadow Minister of Justice, Adv Breytenbach.
Mr Herron: I’m not from the DA. That’s racial profiling.
Mr Pillay: Oh, sorry, sorry. Yes, indeed. I apologise. It happened in so many instances. And it's not just that there were the reports, there were also instances where there were opinions like the Maphakela opinion about the pension and Trengove’s opinion on the founding of unit and the activities of the unit, according to the law, which, in my view, were good opinions, and they were suppressed. So you actually have two processes, you have the advancing of a particular narrative, and you have the suppression of anything else.
Chairperson: That’s your last question.
Mr Herron: I’ve only had two questions.
Chairperson: When I give you time, you are in charge of your time.
Mr Herron: Alright, but I've only got two more left. Can I ask both of them?
Chairperson: Quickly, please.
Mr Herron: Yes. Mr Pillay, I want to understand this arrangement between the DSO, where members of your staff were able to assist the National Prosecuting Authority or the DSO with installing equipment as kind of private individuals while they're employed by SARS. I think that was your evidence. I mean was this a practice that is permitted where staff members can sort of moonlight and provide services after hours while being employed by SARS?
Mr Pillay: Hon Member, at that time that was allowed, as long as the companies were declared with a DOPI, declaration of personal interest. So as long as you declare that you're doing some things, as long as it is done after hours, and it doesn't interfere with the SARS work; it was permitted.
Mr Herron: Mr Pillay, I think on more than one occasion about your retirement case, you've said that you're retiring from the pension fund. I don't really understand what you are saying that you can retire from the pension fund and continue employment? Because I think the Act actually talks about retiring from the public service. So what did you mean by retiring from the pension fund?
Mr Pillay: Yes, so let me clarify. My intention was to retire, as I wanted to access my pension fund, let's say that. But the way things were at that stage, accessing your pension fund meant retiring from SARS. I was up to that stage what is called a full-time member. Then if SARS wanted me, then they needed to rehire me on contract. That is the explanation.
Mr Herron: Sorry. So you were actually retiring, not retiring from the pension fund?
Mr Pillay: Well, in the ordinary meaning of retiring when one would retire one would leave an institution. I'm now retired. But at that stage, I wanted to access the pension fund, but I couldn't access the pension fund by continuing to be a full-time member of SARS. It was not possible. In other words, I had to not be employed as a full-time member of SARS. SARS wanted me there but my status had to change from a full-time member to a contract employee.
Chairperson: Okay. Thank you, Mr Pillay. Thank you, Hon Member. I now recognise Hon Lotriet.
Dr A Lotriet (DA): Thank you very much Chairperson. I'm also not switching on my camera as I'm sitting with load shedding. Mr Pillay, thank you very much for your testimony today. I don't have many questions, as a few of them have already been covered. I just want to find out from you at the time of your appointment, I think you said earlier that there was no requirement of any degree for your appointment as a Deputy Commissioner, did I hear correctly?
Mr Pillay: Yes, and the judgment said so, that there was no requirement. By the way, there wasn't such a requirement even for the Commissioner. I think it's now been changed.
Dr Lotriet: Okay, so if you say it was changed, you believe it's now a requirement that you should have a post-matric qualification?
Mr Pillay: To be the Commissioner.
Dr Lotriet: Mr Pillay, when did you join SARS?
Mr Pillay: 1999.
Dr Lotriet: And if I heard you correctly, you said that you were appointed in a position of a general manager?
Mr Pillay: That's right.
Dr Lotriet: And what was the time lapse between your appointment as the general manager and your appointment as a Deputy Commissioner?
Mr Pillay: I'm not sure about the exact date but I think I was appointed Deputy Commissioner around 2010. It’s about ten years.
Dr Lotriet: Thank you very much. Then I just want to turn to 8.4 of your affidavit and that is where you refer to 192, 193 and 194 of the High Court judgment in that particular case. The High Court found that the Public Protector in her answering affidavit mentioned the fact that you weren't candid and open in dealing with the issues; you only gave views; that you had political narratives that were irrelevant; and you also avoided giving coherent and straight answers. Could you perhaps remember during your interview with Public Protector whether she ever indicated to you that she had problems with the way in which you were answering her questions?
Mr Pillay: Hon Member, in that instance the interview came early on, if I remember correctly, before the written submissions were made. But maybe I could say there was no attempt to engage and say on these matters, ‘this is fluffy’ or to be more specific, there was no such engagement.
Dr Lotriet: Thank you very much. Then also just to confirm for my own notes that you did not receive any section 7(9) letters in the second and third matter?
Mr Pillay: Well, we did not receive any Section 7(9) letters for any of the three matters. Then on the last matter I didn't receive even the initial section 7(9) notice.
Dr Lotriet: Thank you very much Mr Pillay. That is all from my side, Chair.
Chairperson: Thank you Hon Lotriet. I now recognise Hon Tlhape.
Ms M Tlhape (ANC): Thanks, Chairperson. My apologies, I am also sitting in load shedding. Mr Pillay, can you confirm to the Committee that your appointment as Deputy Commissioner was not unlawful? When you applied were the requirements and qualifications stated for this position?
Mr Pillay: Thank you, Hon Member. By the way, there is no job description for a Deputy Commissioner. It's not a position as such. There were no advertisements. Not long before, or rather, I think around the 2010 period, the Minister decided to appoint three Deputy Commissioners. It was said at that stage for stability, because Commissioner Gordhan was on his way out and he would move on. And at that stage, we didn't know that he would be Minister of Finance. There was even some talk about him going to Transnet. So for stability, the Minister wanted to do that. There were no particular duties, nothing. There was no qualification. And three people were appointed: we did not apply. As I say, my first response, I said, ‘No’, and ‘you can't be doing this’ because I felt one other person had been overlooked. It was just a title. No salary attached to it. No job description. Nothing. Thank you, Chair.
Ms Tlhape: Thank you, Mr Pillay. Now, do you think that the PP’s intentions were malicious when she conducted the three investigations against you and made findings? And please substantiate your answer.
Mr Pillay: Chair I really don't want to answer that question directly. What I do want to say – and what I've said many times today– is that in three matters the judgments are quite sharp and quite clear. I don't want to make this a personal matter about her being malicious towards me. My own view is that the evidence is there. You've got to see whether it’s relevant. And you've got to make your decisions, but I will leave it there. Thank you.
Ms Tlhape: Thank you, Mr Pillay. Thank you Chair. That will be all from me.
Adv Mpofu: Chair?
Chairperson: Thank you Hon Tlhape. Before Hon Maotwe, I recognise you, Adv Mpofu.
Adv Mpofu: Thank you, Chair. I think you forgot about me, as I said that I wanted to speak after Mr Herron. Chair, I’d like to raise some issues of protection again. Please, Chair, we really beg you, can you ask your Members to refrain from asking questions, which suggest that the Public Protector should not act on complaints that are raised with her. In other words, if she receives a complaint, and then they say now it's malicious when she investigates it. I don't think that's part of the terms of reference of this Committee. And it's been happening and we've basically tried to tolerate it. But now, already, there's been three instances where either the witness has been asked whether he thinks that she's guilty of misconduct, which is also completely irrelevant. But we understand that people are not lawyers, they don't understand that you can’t ask the witness about the very fact that is to be determined by the tribunal. It's just those kinds of things, Chair, because they're just prejudicial and unfair. I'm not saying that was the intention of the Members. What if the Public Protector did not investigate the complaint, then they're not going to say she's guilty of misconduct. If she investigated, then she's malicious. These are not investigations that were initiated by the Public Protector, but by members of the public. Thank you, Chair.
Chairperson: Adv Mpofu, maybe I need to make this point. I hear you and I take your point, but I can't sustain it. I'm going to allow the Members to ask the questions in the manner they deem fit in relation to what kind of information they want to get from the witness. This is a Committee that is doing the inquiry. I don't even want to suggest that, because that's not what you are saying… I don't want to suggest that you want them to ask questions in a way that makes you comfortable because some of these questions are going to be very uncomfortable. That's not what you are saying?
Adv Mpofu: No, Chair.
Chairperson: No, you can’t stop me. I’m speaking. Allow me to speak.
Adv Mpofu: No, you are going in a different direction.
Chairperson: No, allow me to speak. I allowed you to speak even if I didn’t agree with what you were saying. Just stop doing that.
Adv Mpofu: Yeah, don’t shout at me. Just carry on.
Chairperson: I’m not shouting, I’m asking you to stop doing that.
Adv Mpofu: It’s fine, Chair, I’ll come in after you.
Chairperson: You won’t come in after me, as I will be making a ruling. The point I am making is that allow Members to interact with the witness and to ask questions. Our directives are very clear on issues of relevance. We have spoken about that for the last three days, and we now have an approach on how to attend to issues of relevance. When a Member asks if in terms of this judgment, which would have said the Public Protector has misconducted herself. If that was enough, there was never going to be an inquiry. There's an inquiry precisely because we've got to get to the bottom of that. We're not just going to take what court judgments are saying, hence, this Committee has no predetermined outcome. So we're going to do our work, look at facts and evidence, not just judgments, it doesn't matter what court that would have been.
Adv Mpofu: Chair, with respect. You don’t understand the point I’m making. I accept what you are saying and that's not the point I'm making about predetermined things. I am entitled…
Chairperson: I have not finished and you know that.
Adv Mpofu: Oh, sorry, Chair. How would I know?
Chairperson: Thank you. I want to make sure that… It can’t be that every time a Member speaks, you have to make a comment about how this Member is asking a question. That is just unheard of. You've been continuously doing this up to now.
Adv Mpofu: Every time? When did I do that? When did that happen?
Chairperson: Do not create a dialogue on the platform, Adv Mpofu.
Adv Mpofu: No, Chair. Yeah but don’t misrepresent the facts. ‘Every time a Member speaks I speak’, when did that happen?
Mr Nodada: Order, Chairperson?
Chairperson: I’m not representing the facts. I’m on the platform, stop speaking Adv Mpofu. I note your point of order, Hon Nodada. I don’t think we can continue in this way. Where there is a constant disruption and trying to determine in what way Members should be asking their questions. I want to proceed to the next Hon Members. Hon Nodada, I recognise you.
Adv Mpofu: Hon Chair, may I please speak before that?
Mr Nodada: Thank you Hon Chairperson. Chairperson, we have rules here. We have directives here. When a Member is speaking on the floor, they're not supposed to be interrupted. If you're making a ruling as a Chairperson, you must conclude that ruling, we must hear what that ruling is, and then we must take it from there. But these interjections are really disrupting the whole meeting. It's making it degenerate. And on top of that, the point that has been raised is completely out of order, Chairperson, because we are here to get the information that we need to get. We are legislators, we're not lawyers. We're here in this Committee to get the information that we require to do the work of legislators. So please, Chairperson, can you make sure that the meeting is in order, and we're not disrupted when we’re doing our work, because we don't disrupt people when they are doing their own work as well. Thank you so much, Chair.
Adv Mpofu: Really? Chair?
Chairperson: Thank you, Hon Nodada. Stop responding and unmuting yourself without being recognised, Adv Mpofu. I am going to give you an opportunity for the last time, and I will make a ruling.
Adv Mpofu: Thank you, Chair and I am sorry about that. Firstly, the Member who just spoke, I don’t know if he has seen how many times I have been interrupted unnecessarily in this Committee and how many times I have complained about [it]. I’ve never heard him protecting me. I’m saying, Chair, I have the right to object, if there's an irrelevant point being raised. That's why I said to you patiently, I didn't want to interrupt the Member… It happened about four or five Members ago… And when Hon Herron was speaking, I said I would have spoken just before that, but you didn't see my hand. That was out of respect, because I didn't want to interrupt people while they're speaking. But it is my duty to raise objections of relevance. That's all I'm doing. I will never stop doing that, while I'm still here, I have to do it because if I don't do it, then it is going to remain on the record. You can rule against me, that's fine. That's your prerogative. But the rules say that you, Chair and that's why I'm addressing you, are the person who determines when there's an objection about relevance, and you can determine in my favour or against me, that's fine, I'll accept that. But I cannot be stopped from raising an objection; that's just not how it works. I'm not interfering with your thing about predetermined outcomes and so on. I’m simply raising an objection and it may be right or it may be wrong. That's it.
Chairperson: That’s fair. Thank you, Adv Mpofu. The objection you have raised is not sustained, therefore, I proceed. I now recognise Hon Maotwe.
Mr V Zungula (ATM): I had raised a point of order, as well, Chair?
Chairperson: Before you, Hon Maotwe, Hon Zungula, what is your point of order?
Mr Zungula: Chairperson, in light of what Hon Nodada says, I’d like to join his views that the meeting must not degenerate. Firstly, Adv Mpofu is well within his rights and responsibilities to raise a point of order, especially when it concerns issues of relevance. Secondly, Hon Nodada is very correct when he is addressing the issue of… you know…when one person is on the floor, another one speaks. I’ve picked up that when Adv Mpofu is addressing, you do interject, and that creates a dialogue that you are saying you don't want. Then lastly, Chairperson, Adv Mpofu must correct you when you are saying something that he did not say or something that is wrong. Just now you stated that every time that Members are asking or engaging the witness, Adv Mpofu interjects or asks questions and that is not true. We've been listening all this time. He's not addressing or wanting to comment every time a Member of Parliament is actually engaging the witness. It can't be correct, that when he’s addressing that is not correct, you want to stop him and you don't want him to correct you when you are wrong in your assertion. I wanted, Chair, to raise those issues. Thank you.
Chairperson: Thank you, Hon Zungula. Your point of order is not sustained. I proceed.
Adv Mpofu: Chair? I am on another point, sorry.
Dr Lotriet: Chair, my hand is raised?
Chairperson: Yes, Hon Lotriet?
Dr Lotriet: Thank you, Chairperson. Not to belabour the points but I do think it is important that you do rule on Adv Mpofu’s assertion now that this Committee has a predetermined outcome. I think it's casting aspersions on this Committee. We are here to listen with open minds and I would honestly want you to rule in this regard. It puts us in an absolutely uncomfortable position, if that is said of the Members of the Committee.
Chairperson: Thank you, Hon Lotriet. I missed that point. Adv Mpofu, did you say that?
Adv Mpofu: No, Chair. I didn’t say anything of that sort. You, Chair, said that when you were responding to me, that you don’t have a predetermined outcome. I said no, I am not on that point at all. Chair, I wanted to make another point sort of completely different. We've observed that this witness is in the company of someone who keeps on whispering to him, can we find out who that person is?
Chairperson: Thank you, Adv Mpofu. I have not picked that up. I've not seen it but I will confirm with him as I go to Hon Maotwe. Mr Pillay, do you have a challenge where you are? Do you have people whispering around you? Please mute yourself, Adv Mpofu.
Mr Pillay: I have my family around, Chair.
Chairperson: Are you in the house?
Mr Pillay: Yes, in the house. I apologise.
Adv Mpofu: Chairperson, no, no. I’m sorry, Chair. I don’t know what you are doing here, Chair. I'm not talking about the house. I'm saying he has people whispering information to him and you are leading him to, to say these people in the house? Why? Why do I care about people in the house? The people are whispering to him. You must ask him about that because that's wrong. It's illegal.
Chairperson: Hon Herron?
Mr Herron: Chair, I think to be fair and honest, we have to acknowledge that when I was asking questions, someone was whispering to Mr Pillay about the Sunday Times.
Adv Mpofu: Thank you, Hon Herron. You are the new Chairperson.
Chairperson: Mr Pillay?
Mr Pillay: Yes, my spouse is here. She whispers to me some time and she's also working in the house. But I apologise.
Chairperson: Apology accepted. Thank you. Let's proceed, Hon Maotwe.
Ms Maotwe: Thank you very much, Chair. Good evening to you, Mr Pillay. We previously had Mr Johan van Loggerenberg here as a witness and he was at pains to explain that he does not like people using the word Rogue Unit. Do you also feel strongly against the use of the description of SARS intelligence unit being called the Rogue Unit?
Mr Pillay: I feel strongly about it. I think it says a lot about a person whether you take objection to it or whether you want to use it.
Ms Maotwe: Mr Pillay, it is clear that when you started working at SARS, your highest qualification was matric. So just for the record, in your affidavit, in paragraph one, where you stated that you were formerly employed in various positions, including as a Deputy Commissioner of SARS and you were employed in all these positions, only with a standard 10?
Mr Pillay: That’s correct.
Ms Maotwe: Okay, let's move from that one. Would you say that had the State Security Agency finalised the MOU with SARS at the time when there were discussions including seeking funding approval from the National Treasury to bring to the table its constitutional mandate to be the only entity together with SAPS and Defence to conduct intelligence surveillance, then we wouldn't have had the whole Rogue Unit saga?
Mr Pillay: If I've understood the question properly, Hon Member, the judgment on the Unit has found that the establishment of such a type of unit is lawful. The establishment itself is not unlawful. There have also been other opinions. So the view that the unit in practice, it’s very foundation, breached the law was rejected by the judgment in the matter….I received such an opinion from Adv Trengove, where he also said the founding of a unit in practice like the one that there was, is not in itself in breach of the Constitution or of the law. Thank you.
Ms Maotwe: Okay, for the sake of progress I'll move on. Now earlier on during the cross-examination by Adv Dali Mpofu, SC, he asked that all investigations that found the so-called rogue unit to be illegal relied on the fact that SARS did not have mandate to conduct intelligence surveillance, did you agree to this? I missed your response. You were not very clear, can you please respond?
Mr Pillay: Okay. So, the opinion given to SARS even after I left SARS, by Adv Trengove, gives a very helpful interpretation of what the law allows and does not allow. So, for example, it can be okay to have surveillance in a state property. In fact, there is an example of members of SARS enforcement when they were expecting attempts to raid a SARS Customs Warehouse and they were able to do early surveillance. That was a state property. Another example is where there was surveillance of a cigarette manufacturer and the surveillance was not done directly by us. They happen to be a Metro Police camera, which was focused nearby. Our people were able to liaise with the Metro Police and use the footage to identify the movements, for example, counting the number of trucks that move in and out. And to be able to make an estimation of the quantity of tobacco that's moving in and the quantity of cigarettes that's finally and comparing it with the quantity of cigarettes that’s finally manufactured. According to my understanding of the judgments and Adv Trengove’s opinion, there is no blanket view that this is unlawful. It's about how it is set up and what its activities are.
Ms Maotwe: So you are saying it was okay to establish the Rogue Unit at SARS in a nutshell, is that what you're saying?
Mr Pillay: No, I'm saying it was okay to establish the type of unit that we established in SARS, bearing in mind that that type of unit that we finally established was different from the original conception. The original conception was actually to create something jointly with NIA and housed in NIA that would then use NIA’s full powers. We did not succeed in that because at some point NIA grew cold on that type of solution. We then had to work out something for ourselves and we tried as best as we could to stick to within the law. This unit, as Mr van Loggerenberg has said, has carried out 81 projects over a period of you know, and for most of his time it only comprised seven people and it did some real good work.
Ms Maotwe: Okay. In the interest of time we'll move. Let's talk about your retirement saga now. Do you think it is fair that you benefited from a package where SARS paid over R1 million of taxpayers' money in penalties? I mean you now live in Holland while the majority of our people here in South Africa live in squalor. It's even a joke to you, you're smiling now, when you've got your family around you, when our people are living in squatter camps.
Mr Pillay: By the way, I don't live in the Netherlands. I'm here because I want to visit my extended family, and the bereavement. I have not emigrated. I live in Pretoria, South Africa. That's one. The second thing is that the package in which the penalty was paid for me, was lawful. And the then Commissioner pointed out and I pointed out in my affidavit that over a period of time, in fact, SARS saves, because SARS wouldn't be paying towards my pension and any other such extras. Thank you.
Ms Maotwe: Okay, so Mr Pillay, are you saying anyone in your position, who did not have a decade-long relationship with Mr Gordhan, would have been given their pension; SARS would have paid the money owed to GEPF and any other person would have been rehired for a position that does not even have a job description?
Mr Pillay: Hon Member, that is a decision that the then Commissioner of SARS and the Minister should make: is it of value to them to have me? That is their decision. That is not a decision I make. And the Commissioner explains it in his affidavit. His view was that they should have me there. They could have said no then my alternative would be to retire and take all my pension fund and move on. The decision was in their hands, it is not my decision. Thank you.
Ms Maotwe: Mr Pillay, do you know anyone in South Africa who retired, accessed his pension, and was rehired the same way that you were at SARS? At the same position and salary with less responsibilities? Is there anyone that has ever gone through what you went through?
Mr Pillay: I believe statistically there would be. I showed you or rather the legal representative of the Public Protector showed you four examples in SARS. I do agree… I actually don't know but I think it would be that they did not have the early retirement benefit. Remember, the early retirement benefit means that the calculation is pegged off at a particular year. The two gentlemen that are named by Adv Dali Mpofu, were hired the next day after they retired. But they didn't ask for and they didn't need to ask for early retirement. They reached retirement age. Thank you.
Ms Maotwe: How did the members of the Rogue Unit get to be known to have the spying unit, such that the private company constructed them to assist them in installing the spy unit at the NPA and do you think there was a coincidence that it was your members of the Rogue Unit that were awarded?
Mr Pillay: Okay, so firstly, I must say that the rogue unit that I know is the rogue unit in the SSA. This unit has been before the court and the judgment has said this unit has been lawfully formed. And thus far, nobody has found its activities to be unlawful. It is explained, as far as I understand, that some of these people worked at the DSO and some of these people that worked at SARS knew each other. They had reputations and they were known to be people who had technical experience. So they phoned up somebody they knew. They didn't come to me. They didn't come to SARS as SARS. They spoke to individuals that they knew and they made an arrangement with them.
Ms Maotwe: To your knowledge, was it the first time that such spying units were being installed at the NPA?
Mr Pillay: I don't know and as I say, I don't know what this "spying unit" is; this is for the DSO’s purpose. I'm not aware or privy to what is happening within the DSO.
Chairperson: These are your last points.
Ms Maotwe: How did you determine that, Chair? But anyway, I will put them together.
Chairperson: I determine in my own way. Thank you, Hon Maotwe. Go ahead.
Ms Maotwe: You don’t have to respond to everything, Chair. Based on errors made by the courts, Mr Pillay, in paragraph 113, 115 and 116, would you say that PP was well within the right to apply for appeal? And should this Committee rely on those judgments, irrespective? And lastly, Mr Pillay, just as a comment, I'm not sure when you are coming back to South Africa because as soon as you come, you must pay back the money that was paid illegally and unlawfully to you. Thank you, Chair.
Mr Pillay: Can she please repeat that question?
Chairperson: Not the comment, the question?
Mr Pillay: Yeah.
Ms Maotwe: The point is that you must come back home and give back our money… taxpayer's money. But my question was based on errors made by the courts in paragraph 113, 115 and 116. Would you say that PP was well within her right to apply for appeal? And equally, should this Committee rely on those judgments irrespective?
Mr Pillay: Well, I can only talk about three matters. I've put the three matters before you. In the one matter, it's appealed right up to the Constitutional Court, and the judgments have been confirmed. On the second matter we've heard today and I think we've heard previously, there’s one matter, that I'm aware of or rather that I can remember, that the Public Protector's Office takes issue with. I don't know how that will come out in an appeal and I don't know whether that one matter will change the whole judgment. I'm not a lawyer. I think in the end, it won't change the overall thrust of the judgment. I haven't immigrated and I'm coming back to South Africa.
Chairperson: Okay. Hon Zungula?
Ms Maotwe: Sorry, Chair, I missed his last sentence about South Africa?
Chairperson: He said he's coming back to South Africa.
Ms Maotwe: Oh, to give us our money back. Okay, thank you.
Chairperson: Hon Zungula?
Mr Zungula: Thank you. Mr Pillay, can we agree when I am covered with your answer I can stop you so that you don't have to go on and on?
Mr Pillay: Yes, through you Chair.
Mr Zungula: Okay, so would you agree that the position of being Commissioner or Acting Commissioner is equivalent to being a DG of a government department?
Mr Pillay: Yes.
Mr Zungula: Now, do you agree that DGs of departments have for the longest time needed to have post-matric qualification of three years or equivalent?
Mr Pillay: I agree.
Mr Zungula: Okay. So why do you think it was proper for you to hold such a position that you agree is equivalent to being a DG without even having a matric certificate?
Mr Pillay: Well, the one thing I can say to you is that an assessment was done of all the members of the executive at that time. We went through a battery of tests over four and a half days. I think there were, I don't know, seven / eight of us, who underwent that test. And we called it a goodness of fit. I performed the best out of everybody in that test. I would say that assessment might have influenced the way Commissioner Oupa Magashula saw things and the way Minister Gordhan saw things.
Mr Zungula: So this assessment, it was not independently done. It was done by your boss, basically?
Mr Pillay: No, it was done by consultants from the United States who spent, I'm not sure something, like two months here in SARS and they put most of the middle and senior managers through assessments.
Mr Zungula: Is it South African Institute of Chartered Accountants (SAICA) accredited?
Mr Pillay: I don't know. But, you know, at that stage when the tests were done, Commissioner Oupa Magashula was our head of HR. He's regarded as a ‘fundi’ in HR matters. I would say it would have been an assessment of quite a high calibre.
Mr Zungula: So, basically your experience has never been quantified independently by SAICA?
Mr Pillay: No, the way I understand, it is usually when you want to go into further studies, then you go for such an assessment. I haven't gone for such a formal process.
Mr Zungula: Okay. Alright. No, as long as we agree that your position was equivalent to a DG and the DG has for the longest time required a post-matric qualification, which you did not have – and your experience was not quantified by SAICA. So there is no independent authority, which should be doing that work of quantifying your experience. So we agree on those points. But the next point would be, did you get your lump sum on your retirement?
Mr Pillay: Yes, I got a one third lump sum on my retirement.
Mr Zungula: Okay. Did you not perhaps think there is something wrong if you got your lump sum because you had retired, hardly days after, then you were appointed for somewhat the same position?
Mr Pillay: Hon Member, the way I understand it is that retirement, which is retirement essentially from the pension fund and the rehiring – there are a few people for who it has taken place in SARS, as was shown on the screen. But there are also thousands of people in the public sector who were retired in that way and then rehired on contracts for a relatively short period and for some time specific projects. So that aspect of a retirement fund and rehiring on contract is not a strange thing.
Mr Zungula: Okay, so what would happen to the fiscus if all civil servants in the country did what you did; which is to retire, get a lump sum and then a day later, get re-appointed? What impact would that have on the fiscus?
Mr Pillay: Everybody above 55 can take early retirement, is my understanding. I didn't retire at 40 or something. I retired two and a half or three years shy of 60, which is an early retirement. Obviously, the government and the fund managers do things in such a way that these things are controlled.
Mr Zungula: Okay, so were the other people rehired to the same position, and did SARS pay the penalty? And were they under 60? Because what I'm trying to ascertain here is whether the manner in which you retired and then received a lump sum and then rehired is normality? Was it something that happened only with you or was it something usually done in our country by civil servants?
Mr Pillay: Alright. So the straight answer is that I don't know. What I know is that I wanted to access my money in the pension fund. I wanted to retire from the fund. I then asked to be rehired. It's there apparently and that's the key decision if early retirement is agreed to, what kicks in is that the penalty is then paid by the employer.
Mr Zungula: Did I hear you correctly? You said you wanted to retire because you wanted access to your funds and you wanted to be rehired?
Mr Pillay: Yes.
Mr Zungula: It was something that you were in discussion with your then bosses, that the purpose of you retiring is basically to get the lump sum; however, you want to be rehired? It was something well planned. As they accepted you retiring, they knew that there was a plan to rehire you?
Mr Pillay: Well, I don't know about a plan to rehire me. It's a request I made and SARS could have said ‘no, if you retire, you must go’. It's a decision that SARS had to make.
Mr Zungula: Okay, let's move on. In the retirement case, did the court sanction you and Mr Gordhan with punitive costs for accusing the PP without evidence of working with State Capture operators?
Mr Pillay: Yes, there are certain paragraphs that were struck out and certain costs that we landed with.
Mr Zungula: Okay. Alright. No, I think I'm done because I think for me, what was important was the admission that you retired for the purposes of accessing your lump sum, and then you wanted to be rehired. That is the most important, you know, admission that you made. Thank you, Chair.
Chairperson: Thank you, Hon Zungula. I now recognise Hon Siwela.
Ms V Siwela (ANC): Thank you Chairperson. I can't open my video because of load shedding. Greetings to you, Chair. Greetings to Adv Mpofu and his team. Greetings to Adv Bawa and to my colleagues. I think I have two questions, which I want to pose to Mr Ivan Pillay. The first one is in relation to your investigation by the PP. Would you attribute the manner in which the PP handled your investigation and how she treated you, as well as the findings made by the courts, to the PP lacking the knowledge or skills to effectively perform her duties as a Protector of the public? That’s the first question. Thank you.
Mr Pillay: Thank you for the question. As I've said previously, the judgments are replete with comments about the efficiency and effectiveness of the Public Protector. There are many times when it talks about irrational conclusions. There are many times when it says there's no evidence. There are many times when it says the evidence that we put forward was not taken into account. In both the judgments, more in the second judgment than the first judgment, there are very clear indications of the efficiency and effectiveness of the Public Protector. I think it's up to Members then to say whether this is relevant for the work that they have to do in the Committee. Thank you.
Ms Siwela: Thank you, Sir. The next question is in relation to the investigation. Do you think the manner in which the PP handled your investigations, she deliberately disregarded the law and facts to come to a predetermined outcome? What do you think led her to behave the way she did? Does this in any way indicate that she is pursuing a political agenda?
Mr Pillay: Thank you Hon Member. I've said earlier, I think there's a pattern in the way things are done and I don't think that pattern only applies to my cases. I think there are a number of instances now where questions have been raised about whether the investigations were approached with an open mind and whether competing evidence is assessed in the right way. I think the judgments are very clear in many instances, but I wouldn't say in all instances, I don't know…but in many instances, that the Office has been found wanting. Thank you, Chair.
Ms Siwela: Thank you, Chairperson. I only had those two questions. Other questions have been covered by my colleagues. Thanks, Mr Pillay.
Chairperson: Thank you. Before I go to the next speaker, I see your hand Hon Maotwe?
Ms Maotwe: You can take me after the last speaker, it’s fine.
Chairperson: Is it a point of order that you would like to raise, as you have already spoken? Hon Gondwe?
Ms Maotwe: I have spoken but I want to place it on the record, Chairperson. Chair, are you going to come back to me?
Chairperson: I am giving you an opportunity to raise your point of order.
Ms Maotwe: Oh, okay. Chair, I was saying that since you're aware that Adv Mpofu did not finish his cross-examination, I'm sure arrangements will be made for Mr Pillay to come back so that Adv Mpofu can finish?
Chairperson: No, that is not even a point of order. I am not going to entertain that. Thank you, Hon Maotwe. Hon Gondwe?
Dr M Gondwe (DA): Thank you very much, Chair. Good evening, Mr Pillay. Mr Pillay you stated in the course of your evidence in chief that Mr Gordhan was not per se the primary target in the PP’s investigation into the unit but rather the capture of SARS was the primary target. Please expand on what you mean by this? Please also take us into your confidence on who and why SARS was captured?
Mr Pillay: There’s a long answer to this, Hon Member but I'll give you the short one; and in some instances, I'll be repeating myself. I think we accumulated a large number of enemies over time in SARS and they stretched on a continuum from disgruntled employees to taxpayers, who were serious evaders. It also stretched to political fixers, and politicians and it stretched to crime syndicates. Playing a big part in this is the tobacco syndicates. I think that around 2014 came the perfect storm. Up to about 2013, we had some political cover, which was important. You know, we had a situation where Mr Manuel had been a Minister for 10 years and in SARS, we had Commissioner Gordhan for about that period. For institutions to grow and become effective, you need that amount of stability. But I think by 2013-2014 we were one of the last remaining institutions, together with the Treasury. Most of the other institutions in my view, were already taken over and they were dysfunctional / becoming dysfunctional. It was just SARS and Treasury and in some other institutions in the Treasury that stood outside, in my view, the hands of the capturers. And it finally came to SARS. Then it finally did come to the Treasury. Then what happened is that you had a big exodus from SARS and you had quite a big exodus from the Treasury. Thank you, Hon Member.
Dr Gondwe: Thank you, Mr Pillay. Mr Pillay, in the course of Mr van Loggerenberg’s cross-examination by Adv Mpofu, this Committee was shown a letter dated 18 February 2021 written to Adv Mkhwebane by the current SARS Commissioner Mr Kieswetter where he informed her that SARS will be relocating the equipment forming part of her investigation into the alleged Rogue Unit. Which equipment had been securely stored in the basement under the supervision of DPCI, the SSA and SARS. What do you know about this equipment or what sort of equipment was Mr Kietswetter’s letter referring to that was stored in the basement under the supervision of DPCI, SSA and SARS?
Mr Pillay: So, Hon Member, the first thing to say is that equipment is not equipment that can be said to belong to the Investigation Unit in question. It's not true, I would say it's a lie. So that's the first thing. The issue of the equipment is dealt with in some length, in the judgment of the second investigation, they really go into great length and it says that on allegations about the equipment, no evidence has been presented by anybody and by the Public Protector, to say what is this equipment and where it is. In fact, the judgment is very critical that the Public Protector is saying because you are a unit doing unlawful things, you must have equipment. Therefore, we can't find the equipment you're hiding. So, there is equipment of some sort, which was bought by the Security and Anti-Corruption Unit for SARS. They used that. It was not used by the Unit. It was used for security purposes in SARS. There's other equipment that is talked about like night vision and so on. This equipment was delivered to SARS after 2014 and this equipment comes from the United States Customs who provided this equipment to SARS Customs. There is no equipment that this Unit has bought. I provided to the Sikhakhane panel, the report of the CFO who said there is no such procurement. And in fact, the Sikhakhane report says this, by the way. This is in 2013, early 2014, the report says we found no evidence. So this equipment is one of these things that is bandied around. But there is no such thing. Thank you.
Dr Gondwe: Thank you. Mr Pillay, we heard from one of the witnesses, Mr Ebrahim, that the Office that Adv Mkhwebane occupies requires and demands a high level of responsibility, professionalism, ethics, and impartiality and independence. My question to you then, in your view and in light of what has transpired between her and yourself, do you think that Adv Mkhwebane has lived up to this responsibility that her Office requires and demands?
Mr Pillay: Through you Chair, Hon Member, it's difficult for me to take a general position on this thing because really, then one has to look at all of the activities and all of the cases. And one would have to, on balance, take a view. But equally as important is to say, what are the policies and procedures? What are the investigation manuals, what's the manual about complaints? These will show what is the way in which these things are handled in that institution. What's the practice and what's the performance like? And look at it in the balance. But the other is, are there very clear policies and procedures about how complaints are handled; what complaints are really investigated when investigations start; this is how it is done; how do we ensure that the investigation is done properly so we don't have findings that are always overturned. Thank you.
Dr Gondwe: Thank you, Mr Pillay. Mr Pillay, I'm asking the next question on the back of the third report. Does it appear to you that despite being admonished by the courts in the review applications, Adv Mkhwebane is determined at all costs to prove that the Unit was wrong and was established and operated under your guidance and management in a manner that contravened our country's intelligence laws? If your response to this question is in the affirmative, please confirm why you think she's determined at all costs to prove that the Unit was rogue? What does she stand to gain from coming to such a determination and implicating you and others in relation to the function and the workings of the Unit? In simple and blunt terms, does she have some sort of grudge against you or a vendetta against you? What exactly is going on here?
Mr Pillay: Hon Member, let me add some clarity here. The third investigation is actually about IT procurement. This investigation was instituted in SARS by Tom Moyane. He had started a project called ‘Project Line’, which focused on the IT aspect. So that was obviously, in my view, a way to take control of the IT capability in SARS and to get rid of the then Head of IT, Mr Barry Hore. We had one of the best IT capabilities in the whole of South Africa. So that is the third one. It puzzles me, I don't know the answer. Because [there was] no notice, no single engagement. She went through the whole process and there's a finding, at the end of the day, which I read about in the newspaper. I then get hold of the legal team that has worked with me to say, ‘Guys, can you find out for me? Can we get a copy of this? I believe that there’s a finding here’. So for me, it's very puzzling when in two judgments, one gets seriously criticised. Then in the third investigation, one doesn't do the most basic thing which is to inform the other party of the allegations. It is really puzzling. I just can't fathom it: so I can fathom why it is so. I can fathom why there was an attempt to breach the walls in SARS and take control of it. And why there was an attempt to take control of the Treasury. But why [in] 2019, 2020, 2021, she continued with this – beats me. It really beats me. I would really love to – I know all this talking about bugging…I should be very careful – be a fly on the walls when these things are discussed to really understand why this was done. It's the most basic thing that one should, if you want to call it an adversary.
Chairperson: I think you have answered her. Hon Gondwe, your last point?
Dr Gondwe: Thank you very much, Chairperson. Mr Pillay, in paragraph 10 of your affidavit you state that you've been embroiled in endless litigation with the PP for a number of years at a great cost to you. Please take the Committee into your confidence regarding this cost on a financial and personal level?
Mr Herron: Chairperson? Sorry, we've already had the evidence that it's R4 million. I mean, we having questions being asked that have already been answered.
Chairperson: Thank you for raising that, Hon Herron. Let’s allow for it, we are at the end.
Dr Gondwe: Chair, I think Hon Herron should just allow for me to ask my questions. We are allowed to ask questions. Please don’t interrupt me while I’m speaking.
Mr Herron: Sorry, Chair. The directives are very clear on questions that have already been asked.
Chairperson: I take your point, but let’s allow for it.
Mr Pillay: Should I answer the question, Chair?
Mr Pillay: Yeah, the number that I was given was approximately R4 million. That is not all the costs for us. What we have incurred since 2014, that is another matter. Thank you.
Chairperson: Thank you. Mr Pillay, I have three clarity seeking questions. I am going to guide you, so we don’t take too long.
Ms D Dlakude (ANC): My hand is up, Chair.
Chairperson: Oh, Hon Dlakude, please proceed.
Ms Dlakude: Okay, thank you very much. Hon Chairperson. Good evening to you, my colleagues, the Public Protector and her team and our Evidence Leaders. Good evening, Mr Pillay.
Mr Pillay: Good evening.
Ms Dlakude: We really appreciate you availing yourself for this process. Mr Pillay, when you were being cross-examined, you made mention that the High-Risk Unit, which was referred to as the Rogue Unit, was not spying on anyone. I want to know, how did the formation of this unit assist the state in dealing with criminal elements?
Mr Pillay: Yes, thank you Hon Member. As I said, this Unit, in its lifetime has worked on 81 projects. After the first year or two, it was reduced to seven people. It's a small number of projects. But it was invaluable. It did that work, which a normal member of SARS wouldn't want to do because remember SARS was essentially a civilian organisation. Quite a bit of transgressions, especially on the Customs side, is done by organised crime; many ordinary SARS members wouldn't want to operate in that space. So they were prepared to work in that space and prepared to take a little bit of risk. These were people who could take care of themselves and not expose themselves needlessly to risk. A lot of the work centred on drugs, cigarette smuggling, manufacturing of counterfeit cigarettes, abalone – I can't remember all of them now. When we started with a focus on five parts of the illicit economy and I should say that it was very important in these five parts to understand it as the whole value chain in that business like abalone and then try to intervene in a way in which puts pressure on the value chain. Thank you.
Ms Dlakude: Thank you very much Mr Pillay, for that response. During your tenure at SARS as the Deputy Commissioner, were you in any way pressurised by politicians to do your work in a manner that would force you to compromise your principles?
Mr Pillay: It happened on two or three occasions; it didn't happen on more occasions, because we made an early decision to live our lives in such a way that we would not in the ordinary course of socialising be in situations where we will be put under pressure. So there were instances. One [occurred] very early on and I said to this very senior person, we are prepared to help, but we can only help, according to what the law permits us to do. There was an attempt to say, ‘let's target so and so… What can you do as SARS?’ On two occasions this was raised with me and we said ‘No, we do not do that. We act according to the law. If you want information from us, you should request it in the normal way in which the law allows.’ So there were, I should say, not many instances, there were a few instances. For me, in my own understanding, there were a handful. There were a few others. With others, put generally, we worked in such a way, our policies and procedures were good, our processes were good, our checks and balances were good. Of course, people would have broken through, but they would have been the exceptions. Thank you.
Ms Dlakude: Thank you very much, Mr Pillay for that response. After that interaction with the senior person as you were saying, what was your relationship with that particular person after you refused to accede to the request?
Mr Pillay: Hon Member, let me tell you what I did. I didn't refuse outright. I said, ‘We're prepared to help. But we can only do it according to the law.’ Then, a week later, he sent me an emissary – by the way, he happened to come from the Intelligence Agency – and he said, ‘Look, so and so sent me, there are things you can help with’. I said to him the same thing, ‘I'm prepared to help you but we've got to do these things according to the law. I can really help if your person will come clean and disclose everything because the law allows us and our policies and procedures allow us to be more lenient with somebody when they are cooperating with us'. That was the last that I saw of that emissary. He never came back.
Ms Dlakude: Okay. Thank you, Mr Pillay. You also made mention that because of the so-called rogue unit, you made many enemies. Were their lives that were lost because of this, or maybe I can say where people's lives in danger because of the so-called rogue unit’s work?
Mr Pillay: Yes, there was some danger. I think Johan van Loggerenberg spoke about that. A few people were killed. I wouldn’t say that was linked to any sort of necessary politically inspired incident but there were attempts which are believed to be more criminal than politically inspired. There have been other incidents of house breaking and breaking into cars, stealing computers. That has happened to a fair number of people. Thank you.
Ms Dlakude: Okay. Mr Pillay, how did you become aware of the third report, since the Public Protector did not give you any notice or subpoena you?
Mr Pillay: I saw a report, Hon Member, in the newspaper, which said that the Public Protector completed the third investigation and she's released her findings and she's found findings against I think it's about five of us. I saw my name there – I think I saw my name there but what I did is I contacted my lawyers to say, ‘can you have a look at this?’ Now I was aware that there was an investigation. I was aware because I was informed by Barry Hore and Oupa Magashula – I was not informed by Mr Pravin Gordhan, as I had not seen him in a long time – that they had been contacted by the Public Protector on the IT matter. I had expected her to contact me at some stage because I was at SARS – although she didn’t. So, I saw it in the newspaper and then it was confirmed by my lawyers.
Ms Dlakude: Thank you. What do you think if I may ask, were the reasons for her not notifying you about this investigation?
Mr Pillay: Chair, as I responded earlier to one of your colleagues was that it baffled the mind. This was the most fundamental mistake to make.
Ms Dlakude: My last question, Chair, to Mr Pillay, when you responded about the people who were working in the so-called rogue unit, you said they were people who were capable of taking care of themselves. So from the security point of view, I think, by your response, these people were highly trained to take care of themselves and they worked undercover like spies. Is my assumption correct?
Mr Pillay: Through you, Chair. Many of the people from that unit came from the Defence Force, National Intelligence, foreign intelligence and some of them from police intelligence. So they did have a background in intelligence. There would be no point in creating a unit to work on the illicit economy that didn't have an intelligence background; that didn't have the capability to avoid risk. So for me, it floats; they had the capability. And what is true, and I want to be very precise about this, is that they were shielded in the sense that they didn't operate openly in SARS. Not everybody knew that they were operating but they were registered SARS employees. So, if people went into the SARS files they would see their names. These were not people seen every day in SARS offices.
Ms Dlakude: Okay. Thank you very much, Hon Chair and thank you very much Mr Pillay for your responses.
Mr Pillay: Thank you.
Chairperson: Thank you, Hon Dlakude and thank you, Mr Pillay. I have three clarity-seeking questions, but I may only ask two. The first one is in respect to the 81 projects, what were the benefits of these projects for the Republic?
Mr Pillay: Chair, I will make a request later to send you reports on the 81 projects. The benefits were that we confiscated tonnes of tobacco.
Chairperson: Tonnes of what…?
Mr Pillay: Tonnes of smuggled tobacco; tonnes of counterfeit cigarettes. We really hit them hard. There are reports and I'm sure Mr van Loggerenberg can provide them, some of which are old, but I am sure you can make a request to SARS to access them. Very early on, there was a big drug bust in the Natal area, which this group was involved in. We did a lot of work on abalone. The key thing about it, as I was saying, is that we try to understand the business, what's the business and how to choke the business. Through this, we were able to disrupt the business. Where it was possible to get people arrested, we did. We also confiscated products. Thank you.
Chairperson: Thank you. My next point will be based on Bundle F, paragraph 70. Please could you flight it on the screen. Point (c) says that “The equipment in question was not procured, nor used by the High-Risk Investigation Unit.” Is that your understanding?
Mr Pillay: Indeed, it is Chair.
Chairperson: “It was procured in line with SARS procurement policy and used by a unit, erstwhile called the Anti-Corruption and Security Unit (ACAS), currently known as the Anti-Corruption Unit.” Is that your understanding?
Mr Pillay: It was so, and it is so.
Chairperson: It was so, and it is so? So you agree with that assertion?
Mr Pillay: Yes.
Adv Mpofu: Chairperson?
Chairperson: Yes, Adv Mpofu?
Adv Mpofu: Okay. I'm sorry to interrupt, Chair. I just want to know what's happening now? Are you leading evidence?
Adv Mpofu: Well, what is this? Under which rule are you allowed to bring new evidence? Are you an Evidence Leader, Chair?
Chairperson: Thank you, Adv Mpofu. You know that I am not an Evidence Leader. This information is in Bundle F, which you are in possession of.
Adv Mpofu: I have not seen it.
Chairperson: It is accessible in Bundle F.
Adv Mpofu: Can this document be lead through the Chair? I am being serious, Chair.
Chairperson: Thank you, Adv Mpofu. We will attend to you, regarding that matter. My last point, Mr Pillay and my colleagues have touched on this, were all the positions where people were rehired advertised per the policy?
Mr Pillay: It’s a good question.
Chairperson: Yeah, I know.
Mr Pillay: I wouldn't know. I think we should ask for SARS HR to give us clarity on that. I cannot point you to anything which will say ‘Here is a policy, et cetera’.
Chairperson: There are two parts to this question: first, were these positions where people were rehired advertised as per the policy. The fact that you do not know if it was advertised, did that mean that you did not apply?
Mr Pillay: Well, for example, let’s say the first Commissioner of SARS who was rehired on a contract, they are normally appointed as specialists. Normally that's how it's done. I don't think it is advertised because there is an allowance in SARS policy for the Commissioner to appoint people or, by the way, any other senior manager. They apply for an exemption to HR and from HR, which says that this is a person who is here and this is what is done. We want this to be according to the exemption. In other words – I must correct myself – there is an exemption system. And it's usually recorded as an exemption rather than pretending to go through an advertising process.
Chairperson: To your knowledge, did they compete with other applicants and obtain these positions on merit?
Mr Pillay: Chair, they would not be competing as the positions would not be advertised. The appointment is on an exception basis.
Chairperson: Thank you for your responses, Mr Pillay. I just wanted to get clarity on those issues and place them on record. I’d like to invite the Evidence Leader, Adv Bawa, to ask any remaining questions to the witness.
Adv Bawa: We have no further questions. We know that the arrangement was that Mr Pillay would avail himself for today. We have gone way over time and we are indebted for his time. Thank you.
Chairperson: No further questions? Thank you, Adv Bawa. With that, colleagues, we have reached the end of our interaction. Do you have anything that you would like to say, Mr Pillay?
Mr Pillay: Thank you for inviting me here. I appreciate the questions and attention from the Members and the Evidence Leaders.
Chairperson: Thank you. You are now excused. The meeting is adjourned.
Dyantyi, Mr QR
Denner, Ms H
Dlakude, Ms DE
Gondwe, Dr M
Hermans, Ms J
Herron, Mr BN
Holomisa, Dr BH
Legwase, Ms TI
Lotriet, Prof A
Mahlaule, Mr MG
Majozi, Ms Z
Mananiso, Ms JS
Maneli, Mr BM
Maotwe, Ms OMC
Mgweba, Ms T
Mileham, Mr K
Mulder, Dr CP
Nkosi, Mr BS
Nodada, Mr BB
Nqola, Mr X
Seabi, Mr M A
Siwela, Ms VS
Skosana, Mr GJ
Sukers, Ms ME
Tseke, Ms GK
Van Minnen, Ms BM
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