PP Inquiry day 17: Adv Livhuwani Tshiwalule

Committee on Section 194 Enquiry

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

Video (Part 1)

Video (Part 2)

Video (Part 3)

Motion initiating Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from Independent Panel furnished to the NA

NA Rules governing removal

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

Absa Bank Limited and Others v Public Protector and Others (48123/2017; 52883/2017; 46255/2017) [2018] ZAGPPHC 2; [2018] 2 All SA 1 (GP) (16 February 2018)

Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29; 2019 (9) BCLR 1113 (CC); 2019 (6) SA 253 (CC) (22 July 2019)

The Section 194 Enquiry Committee met in a hybrid format. The Chairperson, the evidence leaders and a number of Committee members were physically in attendance in Parliament while the Public Protector, her defence team and other Committee members joined on the virtual platform.

The witness was Adv Livhuwani Tshiwalule a former investigator in the Private Office of the Public Protector, under Adv Madonsela. He was employed at the Office of the Public Protector from approximately 2014 until 31 December 2016 and was responsible for the handover of files to Adv Mkhwebane when she took office. The evidence leaders took the Committee through relevant court judgments such as the High Court full bench judgment on Absa Bank v Public Protector about the CIEX report. The witness was led through his evidence-in-chief.

Before the Public Protector’s legal team cross-examined the witness, it raised two requests relating to the enquiry. The Public Protector’s legal team had sent a letter to the Committee requesting that it take the necessary steps to subpoena or summon President as the President had declined the legal team’s invitation to appear voluntarily. The legal team awaited the Committee’s response. The legal team also raised that previous witnesses still had outstanding cross-examination which they had not yet finished.

Adv Mpofu opened the cross-examination with reading most of the minority judgement of the Constitution Court in the Public Protector v South African Reserve Bank case. The approach of the Public Protector's legal team was that the minority judgment, and particular aspects of it, should be preferred.

Committee members then questioned Adv Tshiwalule about his work on the draft CIEX report and his experience of working under Adv Madonsela; if Adv Mkhwebane had acted improperly by ordering the amendment of the Constitution; what had informed that decision or from where it had come. Public Protector’s legal team raised a point of order saying Members were not allowed to ask a witness if they thought an action was lawful or unlawful. This point of order was not sustained.

Meeting report

Chairperson: Welcome to our hearings. We continue today, 10 August 2022. I want to welcome all Members present here in parliament room M46, Members on the virtual platform. I want to welcome the Public Protector on the virtual platform, as well as the legal team of the Public Protector led by Adv Mpofu, also on the virtual platform. Let me also welcome evidence leaders Adv Nazreen Bawa and Adv Ncumisa Mayosi here at M46 as usual. Welcome to media. And last but not least, welcome to those who watch us. The most important role-players who will be with us through Channel 408 and YouTube, as you have always been with us. Welcome back to our inquiry sessions. The witness we have today will be with us here physically. I will leave the introduction of the witness to Adv Bawa and Mayosi. Just to indicate that we will start with Adv Bawa to give us a bit of a background before we go to Ms Fatima Ebrahim to do the preliminaries of introducing the witness to us. Adv Bawa.

Adv Nazreen Bawa: Good morning, Chair. Good morning, Members. Good morning, everybody.

Chairperson: Just maybe before you proceed so that we know we are connected. Adv Mpofu, can you hear us?

Adv Dali Mpofu: Yes. Good morning, Chairperson. Good morning, Hon Members and everyone else. Thank you. Yes, we can hear you clearly Hon Chair.

Chairperson: We can also hear you. Thank you very much. Thank you, Adv Bawa.

Introduction of witness
Adv Bawa: Our witness today takes us back to the subject matter of the CIEX report. There are a number of judgments, which deal with a number of matters in the motion. Before we had led the first witness dealing with the CIEX-related matter, we took you through the judgment of Murphy J, with reference to the remedial action relating to the amendment of the Constitution. What I wanted to do this morning briefly, and I say this not because the witness is necessarily going to be referring to anything in the judgment, but to remind you of the CIEX matter. I'm going to take you through briefly the full bench decision of what that High Court found in relation to the matter. At some point in the proceedings I will then take you through the Constitutional Court judgment which then follows on this, which I won't necessarily deal with today. Because I don't want us to be dealing with all the judgments on top of each other. It's going to get very confusing for me to do so. I say this in a caution because when we deal with the Constitutional Court judgments, I will point out where the Constitutional Court in any way differs with the judgment thereto. It starts off with a PP Report 8 of 2017/18. What then happens is the South African Reserve Bank, which I call SARB, the Minister of Finance and Treasury, as well as Absa, respectively institute separate review proceedings seeking to set aside and challenge the report. In all three applications the relief sought is similar. They are looking to set aside the remedial action and in fact the Minister of Finance goes further. He also includes the conclusions and findings referred to in the report. Now, one must bear in mind that what was before the court was not the decision of the Public Protector to investigate the matter but the conclusions, findings and remedial action consequent upon the investigation. The court concluded that should all the review applications succeed in reviewing and setting aside the remedial action then it wasn't necessary to set aside the remaining parts of the report because once the remedial action was set aside, the report had no force. Remember, it's the remedial action that is binding and that has to be implemented. So indeed, the court found the remedial action to be unlawful. The court also concluded that there was a reasonable apprehension of bias.

Adv Bawa: Now the context of the case. In a nutshell, there was a complaint submitted by Adv Hoffman. The Public Protector had invoked the powers under the Public Protector Act to investigate the lifeboat transactions the Reserve Bank concluded with Bankorp/Absa and other entities. In December 2016, the Public Protector released a preliminary report for comment. That preliminary report is also called the provisional report. The Public Protector made findings and conclusions which included, inter alia, that the loan provided by the Reserve Bank to Bankorp was not repaid by Absa Bank. That Absa Bank had made provisions in respect of the lifeboat given to Bankorp by the Reserve Bank and that the government and the Reserve Bank had improperly failed to recover the amount of R3.2 billion from Absa Bank. The remedial action proposed by the Public Protector in a preliminary report included the following: Treasury and the Reserve Bank must recover the money owed from Absa, being an alleged amount of R1.125 billion, which constituted 16% allegedly not paid by Absa Bank. That Treasury and the Reserve Bank must put in place systems, regulations, and policies to prevent this anomaly in providing lifeboat or loans to banks in future. When the preliminary report came out, both Absa and the Reserve Bank had received notices thereof as did the President's Office. And both Absa and the Reserve Bank responded to the Public Protector’s preliminary report. Subsequent to that, six months later on 19 June, the Public Protector issued a final report with findings and conclusions. They took issue with this report because the relief or the remedies therein were materially different to what had been detailed in the preliminary report. The Public Protector had made certain factual findings and came to certain conclusions in the report that included: The South African Government had improperly failed to implement the CIEX report which dealt with alleged stolen state funds after commissioning the report from CIEX and paying for it. That the government and the Reserve Bank had improperly failed to recover R3.2 billion from Bankorp/Absa and that the South African public was prejudiced by the conduct of the South African Government and the Reserve Bank. This is what led to certain remedial findings in the report. Now, the three applications were heard as one before a full court. At the time, the applicants were challenging certain remedial actions. These included: The Public Protector referred the matter to the Special Investigating Unit, in terms of provisions of the Public Protector Act and the SIU had to approach the President to reopen and amend the proclamation in order to recover the misappropriated public funds. And for the SIU to investigate the alleged misappropriated public funds given to various institutions, as mentioned in the CIEX report. The Reserve Bank was directed to cooperate fully with the SIU and to assist the SIU in the recovery of these funds. Further, that the SIU, the Reserve Bank and the Chair of the Portfolio Committee on Justice and Correctional Services had to submit an action plan to the Public Protector within 60 days of the steps taken in the remedial action.

Adv Bawa: Now because it was a review application, a Rule 53 record had to be filed. That is effectively all the documentation to which regard was had for purposes of compiling the report. A bone of contention of what arose was two sets of interviews. One had been conducted with officials of the SSA and the other with the Presidency. What the court noted was that it appeared from this report, that prior to finalising the final report the Public Protector had interviews with officials from the SSA and a certain Stephen Mitford Goodson. Further, she did not disclose that she had also met with officials from the Presidency and representatives of an organisation known as Black First Land First. The court noted that the remedial action was totally different in the final report as to the preliminary report and the complaint was that the applicants had not been afforded an opportunity to comment on the conclusions reached in the report and the intended remedial action. So the Public Protector raised two points in limine before the full bench: (1) that the applicants rights had not been materially affected by remedial action and (2) the legal question of an unreasonable delay in having challenged the Public Protector. The court dismissed both. The first and second applicant brought an application both in terms of the Promotion of Administrative Justice Act and in the alternative in terms of section 1(c) of the Constitution, or what we know as the principle of legality. It's not uncommon for applications to be brought where it's drafted either in terms of PAJA or under legality. The full bench in the course of judgment concludes that the decision and the remedial action set out in the report is administrative action. But then also says that, to the extent we might have misdirected ourselves and it's not administrative action then the principle of legality applies. Further, in the relief being sought was that the Reserve Bank had asked the full bench for a declarator for the court to declare that the Public Protector had abused the Office. This relief was dismissed and refused by the High Court.

Adv Bawa: I'm not going to deal with the in limine points in detail but I want to deal with a section which comes under the heading of procedural unfairness in the judgment. Both SARB and Absa contended that the Public Protector had failed to conduct a fair and unbiased investigation, giving rise to a ground of review of reasonable apprehension of bias. This was because the Public Protector had meetings with the SSA and the Presidency after the publication of the provisional report and had not afforded the reviewing parties a similar opportunity. They then contended that these meetings that occurred were not proper and could not have been conducted correctly during the course of investigation. There was a reference to a note dated 3 May 2017 [of a meeting with the SSA] – which we heard evidence on from Mr Kekana – which was included in the record. It was alleged that the discussion was on the topic of the Reserve Bank and the question of how it is vulnerable. The SSA indicated that the Public Protector’s investigation was aimed at undermining the Reserve Bank (that was the allegation put in the affidavits). The court then said the question was not posed to the experts at the Reserve Bank who are ultimately qualified to answer the question and that the Public Protector should have consulted with them. In the supplementary founding paper, Absa took a similar line to what the Reserve Bank had taken, indicating that they had also not been alerted. The issue also arose, brought by Absa, of the reference in the note to the discussion of the remedial action, including that the operations of the Reserve Bank be aligned to social responsibility and a discussion of what appears to be options for recovery of the money supposedly owing by Absa, including the payment thereof in instalments or that the state should be given in Absa shares as a form of repayment. The judgment then records that Absa was disturbed as to why the SSA should have any views on the remedial action being considered by the Public Protector against Absa; having failed to alert Absa of the meeting or giving them an opportunity to an audi in respect of the relief. The Public Protector pointed out in the report that she had made certain findings concerning the government and the South African Reserve Bank's failure to recover the funds and directed them to take remedial action. Therefore, because she had done that, both the President as the primary representative of government and the SIU were implicated as contemplated in section 7(9) of the PP Act. In other words, by virtue of them being implicated, she afforded them an opportunity to respond. The President had responded on 28 February 2017. The Presidency had sought a meeting to take place on 25 April 2017.

Adv Bawa: When I come to the Constitutional Court judgment there is a correction of an error which I won't correct at this stage. I'm saying so, so that Adv Mpofu is alerted. But what was before the [High Court] full bench is that during the meeting the Public Protector became concerned that her draft remedial action to direct the President to establish a judicial commission may face similar difficulties that was being faced in what was then a challenge to the State of Capture report. Accordingly, that was amended in the report to reflect a recommendation in respect of the SIU. Further, the agreement that was the subject matter of the investigation was an agreement between CIEX and the government. It was signed by the then Director-General of the South African National Intelligence Agency, the predecessor to the SSA. So according to the Public Protector it was necessary to have a follow-up meeting with SSA to confirm the agreement and to inquire why the SSA failed to follow up the matter of its implementation. So the fact that these meetings took place wasn't really in dispute before the court. What was an issue, and what also wasn't in dispute, was that neither Absa nor the Reserve Bank had known about these meetings or that they had had similar meetings. It also wasn't in dispute that the Public Protector had not attached transcripts of those meetings. What the court then said was that the context in which this had to be considered was the Public Protector’s report and that the Public Protector had disclosed under the heading ‘Correspondence sent and received’ that there was correspondence between her and the Presidency. Under the heading ‘Interviews conducted and meetings held’, there was a list of meetings with various persons, including the meeting with the SSA on 3 May 2017. The court then said it was it important to point out that there was no reference to any meeting with the Presidency in the report. It was only in her answering affidavit that she admitted to a meeting with the Presidency on 25 April 2017 but that she was silent on the second meeting which took place on 7 June 2017. That the only way the reviewing parties had become aware of this meeting was because of a handwritten note that had been included in the Rule 53 record. In addition to this, during the meeting which she had with the SSA the issue of the vulnerability had arisen. This they had become aware of with regard to the Rule 53 record. So the court concluded that the Public Protector had not given the same opportunity to consult with the reviewing parties or to allow them the opportunity to respond to the adverse findings that directly implicated the Reserve Bank and Absa in the report, and that it was indeed so that the findings so implicated them. The court then said if it was an oversight not to have afforded the Reserve Bank and Absa a further hearing than they would have expected the Public Protector to have said so in her answering affidavit. Taking all of this into account, they said, having regard to all of these considerations, we are of the view that a reasonable, objective and informed person taking into account all these facts would reasonably have an apprehension that the Public Protector would not have brought an impartial mind to the issues before her and then concluded that there was a reasonable suspicion of bias.

Adv Bawa: The court had regard to the following in addition thereto. That the Public Protector relied on new reasons in her answering affidavit which did not accord with the reason she set out in her report. She justified the findings ex post facto in the answering affidavit. She attached documents that were not filed and were not included in the record of proceedings filed in terms of Rule 53. Her averment that she had received advice from economic experts while compiling the report was doubtful. Dr Makoko’s report was only obtained following receipt of the review applications. So the court reiterated the position that the Public Protector had a heightened obligation to be frank and candid when dealing with the court. They concluded that the Public Protector had two meetings with the Presidency after the release of the preliminary report but failed to address the second meeting and failed to disclose what was discussed. Secondly, that the meeting with the SSA and the former Minister of State Security on 3 May 2017 and the discussions pertaining to the Reserve Bank could not be justified in any manner. Thirdly, that she should have engaged directly with the Reserve Bank if she was concerned about the security of the Reserve Bank. And further that she had failed to record these meetings, although it was customary to record all meetings. So the court concluded that the Public Protector did not conduct herself in the manner that should be expected from a person occupying the Office of the Public Protector. Even so, it didn't make a finding or a declaratory order that the Public Protector had abused the Office and it didn't do so because that relief had only been sought in reply, and it wasn't procedurally before the court. That relief had been opposed by the Public Protector as an inappropriate attack on the Public Protector and the relief sought to undermine the Office, the institution of the Public Protector. Counsel for the Public Protector had argued that it had not been proven in the papers that the Public Protector had acted in bad faith. She had no malice or sinister purpose when meeting with the Presidency and the SSA without alerting Absa and the Reserve Bank that she had done so. The question remained unanswered, the court said, as to why she had acted in such a secretive manner and she did not give an explanation. It said that it's possible that the Public Protector had not taken the court fully into its confidence when deposing to the answering affidavit when she set out: "when I make averments relating to economics, I do so on the basis of advice received from economic experts during the investigation of the complaint referred to below which advice I accept as correct". Dr Makoko’s report, the court held, was obtained after the final report had been issued. It was against this factual background that the judgment took these factors into account when it came to the issue of costs. It concluded that the Public Protector did not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour, or prejudice, and that she had failed to disclose in the report that she had a meeting with the Presidency on the two dates referred to. Further, "The Public Protector failed to make a full disclosure when she pretended, in her answering affidavit, that she was acting on advice received with regard to averments relating to economics prior to finalising her report. We have already pointed out that Dr Mokoka's report was obtained after the final report had been issued and the applications for review had been served." Thirdly, it was in light of this that the court considered a punitive cost order. It went further than simply a punitive cost order, and in fact ordered that the Public Protector should pay 15% of the cost of the Reserve Bank and the Office should pay 85% of the cost under the attorney and client scale. The Public Protector sought leave to appeal to the full bench of the SCA. That application was dismissed. Alternatively, leave to appeal directly to the Constitutional Court was sought. That leave was then granted. They argued before the Constitutional Court. Now, there were further affidavits filed before the Constitutional Court that warrants a separate explanation. It would put some of what was not said before the High Court into a different context. When we deal with this again, I'll deal with the Constitution Court judgment. Thank you, Chair.

Chairperson: Thank you, Adv Bawa. I now recognise Ms Fatima Ebrahim.

Ms Fatima Ebrahim, Parliamentary Legal Advisor: Good morning. Thank you, Chair and Adv Tshiwalule can you hear me?

Adv Livhuwani Tshiwalule: Yes, I can hear you ma’am.

Ms Ebrahim: Good morning. Adv Tshiwalule, you have been invited subject to the provisions of section 16 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004 to appear before this Committee as a witness and to answer questions in respect of the Committee's enquiry into the removal of the Public Protector, Adv Mkhwebane. Please be informed that by law you are required to answer fully and satisfactorily all questions lawfully put to you or to produce any documents that you are required to produce in connection with the subject matter of this enquiry, notwithstanding the fact that the answer or the document could incriminate you or expose you to criminal or civil proceedings or damages. You are however protected in that evidence given under oath or affirmation before a House or Committee may not be used against you in any court or place outside of Parliament, except in criminal proceedings concerning a charge of perjury or a charge relating to the evidence or documents required in these proceedings. Please be aware that in terms of section 17(2) of the Powers Act, a person who wilfully furnishes a House or Committee with information or makes a statement before it which is false or misleading, commits an offence and is liable to a fine or imprisonment for a period not exceeding two years. Adv Tshiwalule, I’ll now require you to either take an oath or affirmation that the evidence you're about to give is truthful. Which do you prefer?

Adv Tshiwalule: I’ll take an oath ma’am.

Ms Ebrahim: May I please ask that you raise your right hand and repeat after me? I swear that the evidence I shall give.

Adv Tshiwalule: I swear that the evidence I shall give.

Ms Ebrahim: Shall be the truth, the whole truth and nothing but the truth.

Adv Tshiwalule: The truth and the whole truth and nothing the truth.

Ms Ebrahim: So help me God.

Adv Tshiwalule: So help me God.

Ms Ebrahim: Thank you, Mr Tshiwalule. Chair, the witness is now duly sworn in.

Chairperson: Thank you, Ms Ebrahim. Thank you Adv Tshiwalule. You nearly tripped there. In "the whole truth and nothing but the truth" and it kind of turned around. Hopefully, it won't affect what we're dealing with. Please relax and just stay focused. Thank you very much. I now recognise Adv Mayosi. I am allocating you a certain amount of time. You don't have to use it when there's no need between now and lunchtime. You can finish at any time before that. Thank you.

Examination-in-chief by evidence leader

Adv Mayosi: Thank you, Chair. Good morning, Adv Tshiwalule. Good morning Members. And good morning, members of the public. Earlier this morning, we had word from Adv Mpofu’s camp that there are certain aspects of the affidavit of Adv Tshiwalule that are common cause, that are not in dispute. I will nevertheless take you through those aspects not in dispute just for context for the Committee. Paragraphs 1 to 27 of the affidavit, they indicated are not in dispute. But as I say, just for context, I'll take you through those. I'll lead you through those quite quickly so that we get through those items. Adv Tshiwalule, you state you're an admitted advocate, right?

Adv Tshiwalule: Correct.

Adv Mayosi: But you're not currently practising as one?

Adv Tshiwalule: Correct.

Adv Mayosi: You joined the PPSA in about 2014, correct?

Adv Tshiwalule: Correct.

Adv Mayosi: And when you joined the PPSA the CIEX investigation, it was pretty much already started. Correct?

Adv Tshiwalule: Correct.

Adv Mayosi: Would you say it was already in a substantial stage?

Adv Tshiwalule: Yes, it was already in a substantial stage.

Adv Mayosi: Can you tell the Committee at what stage it was? What interviews had occurred? What interviews had you been part of / had not been part of?

Adv Tshiwalule: Okay, so when we started with the investigation, or when I joined the investigation, there have been a number of interviews that were already done with a number of people. The one that I can recall is that there was an interview that had already been done with former Reserve Bank Governor, Tito Mboweni. There was also an interview already done with the former Reserve Bank Governor, I think it was Gill Marcus. There was also an interview that had already been done with, it was the complainant at the time, they'd already been engaged. There was also an interview that had already been done with the author of the CIEX report, which is Michael Oatley. Those are the ones that I can recall now. Then the interviews that we did with Adv Madonsela, we interviewed former Finance Minister Trevor Manuel. We interviewed the former CEO of Absa, Maria Ramos. We interviewed the former Reserve Bank Governor, Dr Chris Stals. We interviewed former Director-General in the Presidency. I think it was Frank Chikane. We interviewed former President Mbeki. We also had an engagement with other officials within the Reserve Bank who were obviously assisting with investigation as well. Those are the people that I can recall that we did interview during the period that I was working on the investigation.

Adv Mayosi: Okay, so we skipped a bit there. But when you joined in 2014, you joined as a trainee investigator. Is that right?

Adv Tshiwalule: Yes, then quickly after that I was appointed as an assistant investigator. Later on I was then appointed as an investigator.

Adv Mayosi: And you worked with who?

Adv Tshiwalule: I worked with, previously I was working with the former Deputy Public Protector, Adv Malunga in the Private Office. Then later on, I directly worked with Adv Madonsela.

Adv Mayosi: You say in your affidavit that you're involved in some of the big investigations that were happening at the time, right?

Adv Tshiwalule: Yes, I was part of a number of investigations that were taking place in the Office of the Public Protector, simply because whenever the PP would go either to a province or a particular unit where investigation has been conducted, I would be the person that obviously goes to assist her. The same would happen with the Deputy Public Protector. I was part of the CIEX investigation. I was also part of the State Capture investigation when it began at the time.

Adv Mayosi: In paragraph eight and nine of your affidavit, you set out the process of drafting and producing an investigation report. And you talk about quality assurance until the report is finally done. At the time when you were in the Private Office after Adv Mkhwebane arrived, the Think Tank and the quality assurance function happened concurrently. They were still existing at the same time?

Adv Tshiwalule: Correct.

Adv Mayosi: And what would happen then? Can you briefly detail for the Committee that process of producing a report?

Adv Tshiwalule: Thank you. So ordinarily, the report would be drafted by an investigator from a particular unit or a particular province. That report would then be sent to the quality assurance team. The quality assurance team will be responsible to table the report at the Think Tank meeting. The Think Tank meeting comprises of the heads of provinces or what the Public Protector’s Office will call provincial reps and all the senior managers and executive managers in the Office of Public Protector, chaired by the Public Protector. We would also play a role of being the secretariat. When I say we, I mean the team that was obviously assisting the PP together with the quality assurance team. We’ll then put together that. The purpose of the Think Tank when I was there was mainly to obviously look at the quality of the reports. This will be to check if all the processes have been followed in line with the standard operational processes that were established at the time when I was there. So you have to look at the facts on the report. Look at the whether the laws have been applied properly. Case law that probably would have been considered in the report – whether they've been applied properly. The language of the report, the tone. It also had a role to play in as far as suggesting names for the reports. You'll recall that at the time Adv Madonsela would have catchy titles for the reports. So that committee will then be responsible to say, well, in this particular report, we think that to assist the reader of the report, this will be a catchy name that will obviously inform the reader before they even go into the details of the report what the report will talk about. For example, talk about Derailed, which was a PRASA report. That name came from the whole process that took place through the Think Tank. There were also suggestions that I can talk about which I found interesting at the time, which obviously some of it you might obviously not know about because it was happening internally. There was a report that we were working on before I left or a section 7(9) where we already starting to suggest names about how we should name the report. The Mandela funeral one, I think it's the Eastern Cape investigation where I had already started suggesting names like, ‘Not in my name’ or ‘I didn't die for this’. Those were the names which I thought the report will invoke the spirit of Madiba in a way, that people would have looted resources under, you know, his name. Where they were saying, to bury him this is what we are going to be doing. So there were those kinds of catchy names that we had at the time at the Think Tank. There would be ideas that come from different people from around the country who are senior officials within the Office of the Public Protector.

Adv Mayosi: And you say in paragraph nine, that the last say on any report rests with the PP. By this, you mean the PP, whoever it is, is finally accountable for the contents of a report. Correct?

Adv Tshiwalule: Correct.

Adv Mayosi: Then in paragraph 10 you begin to talk about the CIEX report and that on 13 October you emailed a copy of that report to Adv Madonsela, right?

Adv Tshiwalule: Correct.

Adv Mayosi: But there was further work that still needed to be done on it. Can you tell the Committee what further work still needed to be done on that draft?

Adv Tshiwalule: Okay, we had interviewed Dr Stals, the former Reserve Bank Governor, I think somewhere around September, if I'm not mistaken. He had given us so much information. Part of that information was that we were actually not on the right track in terms of our argument that there were no monies that were repaid. He indicated to us that he's actually going to prove to us that in terms of the loan, Absa did pay that particular loan and he would prove it to us. So that information came, was submitted to us somewhere in late September. I felt that we didn't have enough time to go through that whole evidence that was provided to us to be able to say to the Public Protector, or the former Public Protector, this report could go through and decide. There were also issues that we needed to do relating to research and case law, which had not been done at that particular time. So those were the issues.

Adv Mayosi: And you do say that Adv Madonsela then responded to you. She responded to you by way of a covering email, where she… You had said to her that there were some interviews that you had not attended; you required some input from her relating to the inputs from those interviews. She then responded and she told you what had happened in those interviews. She also, you say in your affidavit, gave you a hardcopy version with some handwritten notes. What happened to the version with Adv Madonsela’s handwritten notes?

Adv Tshiwalule: Okay. I incorporated the changes that were on the document that she had written in the draft report. That's what I did.

Adv Mayosi: In the handwritten notes?

Adv Tshiwalule: In the handwritten notes, yes.

Adv Mayosi: Then we'll go to page 3217. So that was Adv Madonsela’s response, right?

Adv Tshiwalule: Yes.

Adv Mayosi: She then responded. Interview parties. These are the interviews that she had attended that you had not attended, right?

Adv Tshiwalule: Yes, I was not party to this.

Adv Mayosi: Did you incorporate these changes into the report?

Adv Tshiwalule: Yes, I did. I think those appear on page 3365.

Adv Mayosi: The Billy Masetla changes appear on 3365, right?

Adv Tshiwalule: Yes.

Adv Mayosi: And the Pravin Gordhan changes appear on 3364, right?

Adv Tshiwalule: Yes.

Adv Mayosi: The Bertelsmann changes appear on page 3359?

Adv Tshiwalule: Yes.

Adv Mayosi: Of the records, the Oatley changes on 3359 as well.

Adv Tshiwalule: Yes.

Adv Mayosi: The Michael Duerr changes on 3359 and so on, correct?

Adv Tshiwalule: Correct.

Adv Mayosi: Then later on the same day there was a letter from Chris Moraitis of Werksmans. Will you just tell the Committee what that was about?

Adv Tshiwalule: Yes. We receive the letter from the attorneys that were representing Absa, sorry, Reserve Bank at the time. They were inquiring about the release of the provisional report by the Public Protector. This was because the 14th I think it was the last day that the PP was in the Office. And obviously they needed to understand whether the report was going to be released and whether they'll be afforded an opportunity to comment on that. So that was the reason why we got that particular correspondence.

Adv Mayosi: But you say that after that you were requested by the PP’s PA. The PP was requesting a briefing from you regarding the reports that were finalised by her predecessor that had not yet been released. Did this briefing occur? Can you just tell the Committee what happened at that briefing if it did occur?

Adv Tshiwalule: So what happened is that soon after the PP was appointed I got a call from the PA saying I have to brief the Public Protector. This was because at the time when the former PP left, we had a memory stick in the Private Office that kept all the reports that were supposed to release. This included section 7(9) letters that were supposed to have been released. The former PP had already indicated to me that when the new PP comes through, she will obviously have a handover with her. There were documents that we need to hand over to her which Adv Madonsela did not manage to release when leaving the Office at that particular time. The briefing did happen. I did brief her and I indicated to her that the report had not yet been finalised. There were also changes that were already made by Adv Madonsela which I had obviously already inserted in the report. I went to her office. I met with her. I downloaded the reports or gave her the reports that were on the memory stick so that at least she can have sight of those. It was during this period that she indicated to me that there was a pressure from society. This pressure, I think, she then indicated that there was pressure from society at the time regarding this particular report. I understood this pressure to mean that before Adv Madonsela left the Office, I think a month or so before she left the Office, there were a number of organisations that were camping at the Office outside. We had also complainants with some of them threatening to sleep in the Office at the time because their reports had not been finalised and Adv Madonsela now that she's leaving, they might not see the light. Those reports and everything. There was an organisation called Black First Land First, if I'm not mistaken. I might not be pronouncing properly there. That organisation had a very keen interest in this investigation. She did mention that they'd already reached out to her about this particular investigation. I explained to her at the time that obviously there were changes that I had not yet finalised inserting. I finalised them and I was providing that report to her, following the changes that were already suggested by the former PP. I handed over the report to her in that regard.

Adv Mayosi: Okay, so you handed the report to her together with the changes that had been suggested by Adv Madonsela incorporated into that draft?

Adv Tshiwalule: Correct.

Adv Mayosi: Then you carry on in your affidavit and you say you had another discussion with her in November. So you had a number of meetings with the PP discussing the report?

Adv Tshiwalule: Yes, correct.

Adv Mayosi: Okay, can you just tell the Committee, and you do allude to this in your affidavit, if at any point during these discussions you handed over documentation to the PP relating to the investigation?

Adv Tshiwalule: So after I've handed over the draft report to the PP, she requested that I should also hand over the evidence. I went to her office and handed over the boxes, the two boxes of evidence that we had at that particular time. I asked her whether she still needed or required more time, you know, because I've seen that she had been with the report for a while and I asked her. She indicated that she still needed to go through the report. She would advise once it's done. I recall handing over the evidence to her at that particular time, the two boxes, the evidence. I sent the information that was in the boxes to her, if I recall well, it included transcribed interviews of the meetings that we had with the officials that we interviewed. It also included some of the documents that were submitted to us by some of the people that we’d interviewed at the time.

Adv Mayosi: So you handed over. Are you able to recall now the specifics of the documentation you handed over to her?

Adv Tshiwalule: The ones that I can recall, right now, are the transcribed interviews for all the individuals or some of the individuals that I know we'd already done the transcribe of their interviews. There were several correspondences that were sent by Michael Oatley at the time where he was inquiring why the government was no longer proceeding with him and in the investigation that he had done. Because he had already given them a prelim report. He thought that they will continue with the agreement for him to finalise the investigation in other things that he had already raised with them. Those were some of the documents that formed part of the information or the box that I handed over to the PP at that time.

Adv Mayosi: Then on the 25 November, you got alternative employment with your current employer and you told the PP about this, right?

Adv Tshiwalule: Yes.

Adv Mayosi: And she, of course, naturally was concerned about you dealing with all the reports that you had under your control and handing those over properly. Is that right?

Adv Tshiwalule: Correct.

Adv Mayosi: Then can you tell the Committee about the request you received from her on 7 December to do some further research on reserve banks of other countries?

Adv Tshiwalule: Okay. Thanks. Thanks for that question. Chair, I received an email from the PP requesting me to do further research on reserve banks of other countries and some indication on how they are controlled or whether the state has any control over those. I did that research. I looked at a number of central banks around the world. I checked the US one. I did look at China. On the African continent, I did look at Nigeria. Simply because at that time I think it was considered it to be a leading economy in the African continent as well. I also looked at the Russia one and also the Zimbabwean. Those were the ones that I looked at. I didn't understand this. I must obviously clearly indicate I didn't understand this because there was no link between the complaint that came from Adv Paul Hoffman and these requests. I wanted to comply, obviously, just to say we will look at this. But I didn't understand where we were going with this because the complaint had nothing to do with what she was asking. Nonetheless, I obviously proceeded to do this research and look at how other central banks around the world deal with the issue of control in as far as whether they're nationalised or state owned or they're privately owned.

Adv Mayosi: You say on the 20th you emailed the finalised report to her Chief of Staff, Ms Linda Molelekoa, as well as Tebogo Kekana. What role was Tebogo Kekana playing in this at the time?

Adv Tshiwalule: Soon after I tendered my resignation, which was end of November, I was told by the Chief of Staff, then Ms Linda Molelekoa, that because I'll be leaving that office and there's so much work that I was doing in as far as some of the investigations of the Private Office are concerned; they are now going to bring in Mr Kekana to assist with the work that I was doing and I must do a proper hand over to him. That was in that regard. I understood it to be in that particular way that Mr Kekana was then brought in.

Adv Mayosi: And then what happened after you submitted the report to him and Ms Molelekoa?

Adv Tshiwalule: The PP signed the report on 21 December. The report was signed together with the section 7(9) covering letters. These are covering letters that obviously would be, together with the report, directed to the implicated parties so that they are able to see what the PP’s findings are likely to be and also what the proposed or likely recommended remedial actions would look like in that regard. So at least they have an opportunity to comment on that. The report was then emailed to the implicated parties.

Adv Mayosi: Can you remember who you sent the report and section 7(9) notices to? Who were the implicated parties in your recollection?

Adv Tshiwalule: I remember sending the report to the Office of the President, I think the Presidency at that time. The report was sent to Absa. The report was sent to Reserve Bank. The report was also sent to the Minister of Finance. Those are the parties I can recall now.

Adv Mayosi: You recall that you sent the report and the section 7(9) notices to those parties. Right?

Adv Tshiwalule: Correct.

Adv Mayosi: So you know who the complainant was in this whole matter. Right?

Adv Tshiwalule: Correct.

Adv Mayosi: Can you just tell the Committee who it was? The complainant was an advocate.

Adv Tshiwalule: The complainant was Adv Paul Hoffman. From an organisation called Accountability Now. That's all I can remember.

Adv Mayosi: Did you send section 7(9) notices and the report to the complainant?

Adv Tshiwalule: No, I didn't.

Adv Mayosi: And why did you not?

Adv Tshiwalule: Okay, so section 7(9) letters by their very nature are sent to implicated people for them to comment. There was no reason from my side that I saw that the report should be sent to Mr Paul Hoffman. The only thing that was supposed to have happened, which I think did happen when he made an enquiry, was just to update him that the PP has now finalised the provisional report and section 7(9) notices have been now sent to the parties for comment. They've been given 14 days to comment. So at least he gets the progress of where the investigation is. That was done. I remember that was done because when I got a call late December I think around 28/29th. I did advise the PA of the PP at that time that there was this call I received talking about somebody not receiving the report – and this was a complainant at that particular time. That we just need to update the complainant, not to give him the report because there’s always been an issue about leak of reports by, you know, individuals in that regard. Especially those that are not implicated, if you just share the reports with them.

Adv Mayosi: So it is your evidence that you did not provide the report to the complainant because they were not an implicated party in the investigation?

Adv Tshiwalule: Correct.

Adv Mayosi: In your affidavit, you also deal with the issue of prescription. If we go to paragraph 34 of your affidavit you explain in that section that you and Adv Madonsela had a different view regarding the issue of prescription in the report. Can you just explain that to the Committee please?

Adv Tshiwalule: Okay. When we were discussing the possible remedial action that obviously had to be put in the report, I had several engagements with Adv Madonsela about this. We just didn't share the same view. I was entirely convinced that the debt was recoverable. That was my position, which is a position that I advanced. She shared a view that the debt can’t be recovered because it is prescribed. I decided at that particular time that I'm going to give Adv Madonsela two versions of the report. One that says this can be recovered. That if anything, prescription should be raised by those that were saying the monies should be recovered from them and not us. We should not be the ones that argue the defence of prescription but rather the implicated parties must say well this debt is already prescribed. Adv Madonsela did not share that view. Her view was that we can't recover here because the claim is already prescribed. I preferred the version that found expression in the provisional report. That was my preference that there is something that can be done to recover this owed amount of monies.

Adv Mayosi: Go to LT4, page 3220. 3277. Paragraph 7.1.6. So this is Annexure LT4 to your affidavit, which is the draft report that Adv Madonsela left behind, correct?

Adv Tshiwalule: Correct.

Adv Mayosi: So we can see 7.1.6 in totality. Is that the manner in which Adv Madonsela preferred to deal with prescription?

Adv Tshiwalule: Correct.

Adv Mayosi: That's the report that she left behind. But you had a different view as you've explained, correct?

Adv Tshiwalule: Correct.

Adv Mayosi: Okay, so I want to juxtapose that against the view that the current PP had in relation to prescription. Go to page 3373. Paragraph 7.2.3. Show us the whole thing. Was this the view that you supported? This is how the matter was dealt with in the provisional report that was released on 21 December 2016.

Adv Tshiwalule: Correct. I supported this view.

Adv Mayosi: And that you discussed with the PP?

Adv Tshiwalule: Correct.

Adv Mayosi: Was it you who introduced this change to the provisional report?

Adv Tshiwalule: Yes, I'm the one who did that. I think just to qualify this, or to explain this. There was a discussion I had with the PP about the recovery issue and everything. I will say the argument came in the angle of saying, what should be the amount. Because the agreement between the Reserve Bank and Absa was that the interest must be paid within a period of five years, if my memory serves me well. But I think those documents should be with the Committee here, that particular agreement. Now, years have gone by, you know, after the five years passed in terms of that whole agreement and the interest that have not yet been paid. The argument was, how much will that be? The argument from my side was there is a common law rule that says interest can’t run over the capital amount for the loan. If you are owed R500 or you owe someone R500 and the interest will then start to run. The interest can’t then be more than the particular loan that you have received. Immediately when it gets to the capital loan, it then stops running. That was the argument at that particular time. Thanks, Chair.

Mr K Mileham (DA): I apologise for interrupting, Chair. I just want to get to clarity which Public Protector did the witness make that submission to? Adv Mkhwebane? Thank you, Chair.

Adv Mayosi: The witness evidence is that he differed a bit on the issue of prescription with the former PP and he had discussions with the current PP about those two versions. Going back to your affidavit, paragraph 39. When you were conducting the investigation with Adv Madonsela, did she engage the service of any economic expert at all?

Adv Tshiwalule: No.

Adv Mayosi: Then in your affidavit you go on and you talk about the meeting with the PPSA officials. How did this come about and why did this come about? You can tell the Committee about this in early 2017.

Adv Tshiwalule: Okay, so after I left the Office of the Public Protector, the preliminary report was then leaked and it was in the public domain, and people were talking about it. The media was writing a lot of articles about it. Adv Mkhwebane then wrote to my new employer requesting to meet with me to iron out a few things relating to CIEX investigation. I had a meeting with the Public Protector in January, if not February 2017. I was supposed to meet with the PP in person, Pretoria. When I arrived I was told that the PP is in Cape Town. She was appearing before the, I think, Justice Committee. It was a virtual meeting. We were in the boardroom and then she was linked through Skype. Present with me in the meeting was senior investigator at the time, Mr Isaac Matlawe with Mr Kekana, as well as the Chief of Staff, Ms Linda Molelekoa. Those are the people who were at that particular meeting. The PP connection was not good at the time. When she was joining the meeting, she was quite brief in that meeting and she lost connection. We nonetheless continued with the meeting. That's when I was formally informed by Mr Kekana that he has now been appointed or formally asked to take over the investigation. That he was not that much familiar with the things that were happening during that investigation and that I should avail myself as and when the office required me to assist them with the investigation.

Adv Mayosi: In your explanation in your affidavit about what happened at that meeting, you say that they obviously wanted clarity about various things. They wanted to know about the transcripts of interviews.

Adv Tshiwalule: Yes.

Adv Mayosi: Can you tell the Committee about that?

Adv Tshiwalule: I was then asked that there were several transcripts that they couldn't find and information that they wanted. Which is not in the box that I had handed over. As I've indicated, Chair, before I left the office I had handed over everything, including my laptop and everything. All the documents that we had in that particular period when we were doing the investigation. So there were a number of questions that were asked to say, that they wanted to check where are the transcribed interviews of some of the witnesses that we had interviewed during that particular time. Also there was an issue of the provisional report, why the provisional report was released as opposed to section 7(9).

Adv Mayosi: Can you explain that? There seems to have been a misunderstanding where it appears that there was a view that it shouldn't have been released in the form that it was released, but you had a different view?

Adv Tshiwalule: I think in November, the Think Tank sat in November. It took a decision after several leaks that were taking place and also the Public Protector, that I'm no longer going to be releasing provisional reports. Rather we will then issue section 7(9) notices to the implicated parties. In that meeting I reminded those who are in attendance of the resolution that was taken in that meeting and its ambit. In terms of the CIEX report, it did not really fall within that resolution as it was already in the Private Office. The PP was already finalising it. There were other reports that were signed within that particular period.

I remember the Malanda report, which was also signed. It was an investigation that was done by, I think, Adv Neels van der Merwe. It was a provisional report that I facilitated when it was sent to the Private Office for the PP’s signature as well. So that's in brief what I indicated to those that were in attendance at that meeting. I remember when I mentioned that, the PP had already been cut off because she had a problem with the connection through Skype.

Adv Mayosi: So the PP herself, in fact, signs the provisional report, as well as the section 7(9) notice on 21 December?

Adv Tshiwalule: Correct.

Adv Mayosi: Did she indicate in any way to you that these were not to go out in that form?

Adv Tshiwalule: No. She just indicated that I should send and when I'm sending out those reports, I must copy Mr Kekana. You would see in the emails that are going to send out the report that Mr Kekana was copied there. The Chief of Staff is copied there and I think her PA as well. She indicated that to make sure that when they respond, because I wouldn't be there as 31 December was my last day, when the responses are coming through at least there should be someone who is going to be able to receive those responses from the Office.

Adv Mayosi: You say in paragraph 45 that the PPSA officials that you were meeting with on that day, were also asking you about the contents of the provisional report and you couldn't really assist them in that regard. Because as you say, in your view, the contents of the provisional report were materially different to the report that was left behind by Adv Madonsela, is that right?

Adv Tshiwalule: Correct.

Adv Mayosi: I'd like you to be more specific about this, please, for the assistance of the Committee. These differences which, in your view, you felt were there and were material. Just for the benefit of the Committee members, we're going to be flicking a little bit between the draft report left by Adv Madonsela and the provisional report, so bear with me because we're going to be going to do that.

Chairperson: You do that through the Chair so that you're able to address all the Members.

Adv Mayosi: Thank you, Chair. I just thought that I should explain the confusion that might ensue. And of course I'm going to lead you on this because, you know, you've sort of shared what you say are the material differences. If you go to page 3316, please. This is the provisional report released on 21 December, correct?

Adv Tshiwalule: Correct.

Adv Mayosi: Can you talk about the contents of that page?

Adv Tshiwalule: It reads, I think, the primary function of the Reserve Bank. If you look at the one that was the draft of the former Public Protector, it completely differed with this paragraph.

Adv Mayosi: Sorry, which paragraph? Paragraph x?

Adv Tshiwalule: Yes, paragraph xii.

Adv Mayosi: I think roman numeral 12.

Adv Tshiwalule: Yes, roman numeral 12.

Adv Mayosi: Is that the only difference?

Adv Tshiwalule: There's also section, I think, it's section five from the executive summary.

Adv Mayosi: Of the executive summary?

Adv Tshiwalule: Yes, section five of the executive summary completely differs with the one that was left by Adv Madonsela.

Adv Mayosi: Go to section five of the executive summary. Section five of the executive summary you see is completely different. It's page 3327. Adv Tshiwalule, is that the section five starting from paragraph five there?

Adv Tshiwalule: Correct.

Adv Mayosi: So is that an entirely new section?

Adv Tshiwalule: Yes, it is entirely a new section.

Adv Mayosi: What other changes are you able to see in the report?

Adv Tshiwalule: Okay. In the remedial action, there is a change that I noticed. I think where it says National Treasury and SARB to institute legal action.

Adv Mayosi: So what paragraph? Remedial action?

Adv Tshiwalule: Yes, on the remedial action.

Adv Mayosi: What page there?

Adv Tshiwalule: Just a moment.

Adv Mayosi: Look at the top of your affidavit for the page.

Adv Tshiwalule: I think it's 3318. It should be 3318.

Adv Mayosi: 3318. Which remedial action are you talking about?

Adv Tshiwalule: This whole part. National Treasury, the Presidency. It might appear on 3365 and 3364. Then 3359.

Adv Mayosi: So let me just help you, Mr Tshiwalule. In the section on page 3329. That section under National Treasury. Do you see that?

Adv Tshiwalule: Yes.

Adv Mayosi: Under paragraph three.

Adv Tshiwalule: Yes.

Adv Mayosi: Was that new?

Adv Tshiwalule: Yes, this is entirely new.

Adv Mayosi: Your evidence is that this was new in the provisional report and it was not in Adv Madonsela’s report?

Adv Tshiwalule: Correct.

Adv Mayosi: Did you make this change? Did you add this change to the report? Paragraph three?

Adv Tshiwalule: Yes, I did. That was before my changes.

Adv Mayosi: You made this change to the report?

Adv Tshiwalule: Yes.

Adv Mayosi: Let’s just go through the other changes. Are there any other changes to the provisional report left by Adv Madonsela that are different to the report issued in December?

Adv Tshiwalule: Yes. If you check the December draft where it talks about the evidence from Judge Bertelsmann, Mr Oakley, Mr Michael Duerr and Trevor Manuel. You will notice that there are changes there.

Adv Mayosi: You made those changes because Adv Madonsela had told you to make those changes. Right?

Adv Tshiwalule: Correct.

Adv Mayosi: If you go to page 3317. Paragraph xix. You see that in paragraph xix, roman numeral xix, it should be noted that South African Reserve Bank disputed that it failed to recover an amount of R3.2 billion from Absa Bank. If you go down to paragraph xx. South African Government led by President Mbeki at the time also disputed that they failed to recover an amount of R3.2 billion. That is different to the previous draft, right?

Adv Tshiwalule: Yes, correct.

Adv Mayosi: Because in the previous draft of Adv Madonsela, those were, in fact, not disputed claims. Is that correct?

Adv Tshiwalule: Correct.

Adv Mayosi: Did you make those changes?

Adv Tshiwalule: Nope. I didn't make those changes.

Adv Mayosi: Of course, your testimony is that the executive summary section five is all new.

Adv Tshiwalule: Yes.

Adv Mayosi: Can you go to page 3329? Yes, you've already given evidence that section three is new in the sense that it was not in Adv Madonsela’s report, is that right?

Adv Tshiwalule: Correct.

Adv Mayosi: Page 3374. Paragraph 8.2.3. Your testimony is that it's new in this report?

Adv Tshiwalule: Correct.

Adv Mayosi: Okay. So then it's your evidence, in your affidavit, that you then told the PPSA officials that some of the changes that were in the issued report, you had not been consulted on?

Adv Tshiwalule: Correct.

Adv Mayosi: You could not assist them with?

Adv Tshiwalule: Yes, correct.

Adv Mayosi: From paragraph 47 onwards of your affidavit, you talk about being visited by SAPS officials at your work investigating a leak of the report. Can you tell the Committee about that?

Adv Tshiwalule: Thanks, Chair. So after I left the Public Protector’s Office I was then contacted that there are SAPS officials, inverted commas, the Hawks who were investigating the leak of a report in the Office of the Public Protector at the time. That's when the PP laid a complaint or opened a case at the police station, she mentioned my name. That's why the police wanted to get my side of the story. Then I obviously confirm that I sent out the report to all the parties. That I had nothing to do with the leak or the leaking of the preliminary report. That was, I think, around March, if not April of 2017. This report was still in the media space. Thereafter, I received a set of questions from the National Prosecuting Authority asking questions about my involvement and how the report was sent out and all those things. I prepared an affidavit and submitted to them. I no longer have that affidavit with me, but I prepared an affidavit and submitted. That was the last time I heard from them during that particular time. And after that, later on, I was visited somewhere end of April. The police then visited my place of residence. They wanted to search my house for documents. Unfortunately, or fortunately, I didn't have anything anyway. But fortunately, or unfortunately, they didn't have a search warrant. I then say to them, if you don't have a search warrant then you're not going to search my house. That was the last time I heard from them in that regard. Not that I had anything to hide, by the way. But it was just an issue of saying I just can't have officials coming, police officers come into my house and say we want to search your house. That was the end or the last time I heard from the police officers.

Adv Mayosi: So Mr Tebogo Kekana gave evidence a week or so ago. His evidence was to the effect, at paragraph 15 of his affidavit, that on 21 December the provisional report was leaked and made publicly available. Do you know anything about that?

Adv Tshiwalule: Nope.

Adv Mayosi: Right. He, of course, continues in that paragraph where he says that the provisional report had never been quality assured prior to it being leaked. Now you say you know nothing about a leak. But let's talk about it being quality assured or not before it was released. What do you have to say about that?

Adv Tshiwalule: I don't know what he meant by that because the report was already with the Public Protector. I've already explained to the Committee that the procedure is there will be documents or reports that will go to the Public Protector without going through that process, which I have noted when it was happening. This report was with the PP. At no point, at no stage did the PP say to me, refer this particular report to a quality assurance team. She signed the report after having considered it as I've indicated, to the best of my knowledge. I would not want to comment much on what he meant on that because prior to this he was not involved at any stage with the investigation.

Chairperson: Thank you, Adv Tshiwalule. Adv Mayosi, we will pause there and take tea for 15 minutes. Thank you.


Adv Mayosi: We are going through the affidavit of Mr Kekana. I think you were explaining to the Committee his assertion that the report had never been quality assured prior to it being released. Yes?

Adv Tshiwalule: Yes. Thanks, Chair. I was explaining that the report was already at the level of the Public Protector. She had already looked at it. Obviously, she had wanted more time to go through some of the things that she wanted to go through. These include the documents that I had submitted to her, the two boxes with the evidence. There was never an instruction to me by the Public Protector that I should refer the report to the quality assurance team. Whatever changes that I had made in the report those changes were made under the instruction of the Public Protector. Either when we were working on the draft that Adv Madonsela had worked on or at the time when we were finalising the provisional report that Adv Mkhwebane had issued. Everything that was done there was done under the instruction of the PP.

Adv Mayosi: You see Mr Kekana then says he was of the view that the report that was released contained numerous errors. It was missing vital information. He told the PP about this. Do you have anything to say about that? The errors and the vital information missing?

Adv Tshiwalule: No, I cannot comment on that. I think without any specific indication of the areas that he’s talking about I really have no comment on that.

Adv Mayosi: Go to his affidavit. Thank you. You explained to the Committee how SAPS visited your workplace and your home, investigating the leak of the report and so on. We now know, because we’re sitting here, that there was litigation that ensued as a result of the report, the final report in June. Were you requested at any stage to assist in the compilation of the Rule 53 record?

Adv Tshiwalule: No.

Adv Mayosi: Can you tell the Committee of any involvement you had in the Vrede Dairy report?

Adv Tshiwalule: The Vrede Dairy investigation was done by the province of the Free State. At some point in 2016, section 7(9), if not a provisional report, was submitted to the Think Tank at that particular time, under Adv Madonsela. Then the former PP was not satisfied with the work that was done on that particular investigation. I vaguely recall her informing the Free State team that they needed to go back and go some work on that particular investigation. This included interviews, people who were not interviewed which she felt that they needed to be interviewed. They also include politicians who were not interviewed at that particular time. It also included an issue that she raised about the Office conducting what she would term a disproportionate investigation in the sense that the investigators had not gone through the site where this particular Vrede Diary farm is. So those were some of the gaps that I still remember that she raised at that particular Think Tank. Think Tank then took a decision that the report must be referred back to the province. The section 7(9) that had been drafted at that particular time had not been ready for this. This must be referred back to the province for the province to then finalise that. She was not happy at all because her view was she had wanted this to be released before she leaves the Office. It didn’t happen, obviously because of a number of things that were happening at that particular time. With the investigation, some of them would obviously take longer than others. So that’s what transpired which I can recall as far as this is concerned.

Chairperson: Just pause there, Adv Mayosi. I am told that the livestream is not back after break. Can we check that? We are leaving people behind. Okay, there’s an indication that they are back on YouTube. Apologies, please proceed Adv Mayosi.

Adv Mayosi: Thank you, Chair. I do not have further questions for this witness. I would like to point out in line with Hon Herron’s suggestion about the parties discussing issues that are not in dispute beforehand and possibly curtailing the time spent on witnesses. The PP’s team indicated that in relation to this witness and his affidavit, they are in agreement with paragraphs 1 to 27 of his affidavit, paragraphs 31 to 33, paragraphs 42 to 43. Although they may ask questions they say they reserve the right to ask whatever clarification questions may arise from his testimony. Then of course, the rest of the paragraphs they will interact with. I thought I should actually just point that out. I have no further questions for the witness.

Chairperson Okay, thank you Adv Mayosi. The time is 11h51. I now recognise Adv Mpofu.

Cross-examination by Adv Mpofu

Adv Mpofu: Thank you, Chairperson. Can I just also start with a few housekeeping issues before I come to the witness with your permission?

Chairperson: Go ahead.

Adv Mpofu: Thank you, Chair. Chair, the three or four issues which I just want to raise quickly. Two of them don't pertain to this witness. The other two pertain to him. So let me start with the broader issues. The first one is, Chair, just for the record and for the attention of the Members, to bring it to your attention or to their attention and also to the attention of the public because we've been getting inquiries, but we thought before we could respond to those inquires out of respect we should raise this matter here in the formal hearing. That is the matter, Chair, by now you would have received a letter from us on from the 8th, that is a day before the public holiday, pertaining to the request that we're making to you to take the necessary steps to subpoena or summon President Cyril Ramaphosa – given the report that we last gave that he had declined the invitation to appear voluntarily. That letter, I'm sure has either reached you now, Chair, or it will reach you if it's still in the pipeline. We, as I say, there have been inquiries about it, but we didn't want to release it to the public domain before we place it on record here. The second issue, Chair, is there's another letter which is coming your way. I'm not sure if it has already been sent. If it's not, it's going to be with you in the next couple of hours. That's a separate matter regarding the recall of the witnesses that still had outstanding cross-examination, which we did not finish. That would be witnesses, Mr van Loggerenberg and Mr Pillay. That is, as I say, you'll receive it today if you haven't yet received it; if your secretariat has not. Then Chair, if you can come then to the issues of today. Firstly, yes, to confirm the summary of the areas that we have indicated to the evidence leaders in respect of the suggestion of Hon Herron. We sought to curtail the time spent on the witness by indicating those areas in respect of which we are in agreement. Obviously subject to the reservation of our rights should he say anything in oral argument that we might want to dispute. There isn't really much, there's one or two issues that we will raise with the witness. Then finally, Chair, it's a request. I don't know how much time; we were going to request that we also be given the half an hour that the evidence leaders had to put the matter of CIEX in perspective. We can exercise that either by doing it upfront or doing it via the witness. I don't mind whichever way is preferable if in principle if you agree for us to do so. The reason, Chair, is that we have noticed that the evidence leaders they've done this traversal of the cases before Mr Kekana at the beginning of the matter, I think on 11 July. And now again today. The result of that is that it's almost like legal argument or giving the narrative or the perspective of what the issues are, which is fine. But we should also be able to articulate, so to speak, what the counter narrative is, particularly in respect of the judgments. I'm just placing that again on the record, Chair. As I say, I'm neutral as to whether we do it via the witness or we do it upfront. If you want to give us guidance, you may, but it's just a question of principle. Yes, thank you, Chair.

Chairperson: Thank you Adv Mpofu. The other issues you have raised, especially the first two. I take note of those. We will wait for both letters and we'll give you feedback on both those issues. On the last point, because I would have given the evidence leaders between when we started up until lunchtime and I indicated to them that they don't need to go lunch time. So they did not. They've just finished now and the plan was to have you from immediately after lunch so we'll now take you. The latest, if you have to, up to four kind of…again, as I said to them, you don't have to go to four. It's up to you. But on the issue you’re raising, it really has to be your comfort. If you think you want to start with those issues, please do so. If you want to do them as you cross-examine the witness, I think also that should not be a train smash.

Adv Mpofu: Thank you, Chair. Thank you very much. I appreciate that. Then I think what I should do, Chairperson, is to, I'll do a bit of both. I’ll just outline one or two issues but some of them I’ll lead through the witness, if I may Chair?

Chairperson: Proceed, please go ahead.

Adv Mpofu: Thank you very much, Chairperson. Thank you, Chairperson and Hon Members. I just want firstly to confirm what Adv Bawa said, namely, that this witness is principally really about the matter of CIEX. And maybe, let me just put, because I think as we go forward, we need to try and focus the enquiry into the issues because we started, you know, on a wide angle. I think as we're going along with the particular witnesses we're now focusing on particular areas. So, how we view the landscape is that that the motion or the issues that are before you, either from the motion or from the Independent Panel report, can be condensed into principally four broad charges, as we said on day one, which some of them have sub charges. But also there are four principal reports or rather judgments which characterise the motion. One of them is CIEX, which is what we're dealing with now. I will come back to the specific issues that I want to raise at a broad level around CIEX. The second one is Vrede. We've touched on Vrede, both with the witnesses Samuel and Kekana, to some extent and then there was a summary of the judgments which was done. So the issues have been outlined there. The third important judgment is the judgments that we call CR17/Bosasa. We have not yet really gone into that particular judgment or that series of judgments. It also has to do with the subpoena to President Ramaphosa that I mentioned earlier, which I have addressed the Committee on previously. I also don't want to dwell much into that. Simply to flag that we will hopefully deal with that stream or that third leg in the same way, via witnesses, and also summaries of the judgment and so on. Then there's the judgment of the Financial Service Board Conduct Committee, something like that, which again, also has not been dealt with. Then there are other judgments, let's call them that. That includes the Pillay-Gordhan/Rogue Unit stream of judgments which we have dealt with via the witnesses, van Loggerenberg and Pillay, so far. Some of those witnesses are going to come back and we will deal with them and finalise that string. Again, you have been given the judgment summaries and obviously we will call evidence in respect of that. So, that's the broad landscape. The format seems to be that we go through the judgments, analyse them, and then have witnesses on both sides, you know, promoting whatever the narrative and counter narrative, so to speak, or the issues that we want to highlight – that both the evidence leaders and ourselves might want to highlight. Maybe to call it narrative and counter narrative might be to overstate the issue. Now against that background that then covers the entire…Oh of course, there's the issue…the so called HR issues. The alleged harassment, victimisation, and intimidation of witnesses, which is a unique type of issue that doesn't really depend on the judgments. We can flag that as a separate issue. But then that covers the entire motion, so to speak. Whether on the wide angle that is preferred by the Committee, or the narrower angle that is preferred by us, which is based on the Independent Panel report.

Adv Mpofu: Now, coming back then to this leg of the enquiry, which is what we're busy with now; which is the CIEX matter. It's important for me just to focus the attention of the Committee on what, at least from our point of view, we regard to be the main issues around that report. The first one is the allegation, which is contained and summarised in the Independent Panel report as well, broadly speaking, that the Public Protector widened the scope of the investigation. And a whole lot of things fall under that. I’ll deal with some of them with this witness now but I just want to flag it as a heading or a topic. The second one, which is also isolated properly by the Independent Panel, is that the remedial action that the Public Protector issued differs substantially from that which Adv Madonsela issued. Again, there are many sub issues that fall under that. The third, which is quite important, is this issue of the judgments. That's really what I wanted to put in perspective. Because some of it might come via the witness, some of it not. You will recall, for example, that we canvas some of the issues in the judgments with witness Kekana and I think, to some extent, with witness Samuel. There are two types of issues that we'll want to flag in respect of the judgments. According to the Independent Panel, the focus is on the Constitutional Court judgment. That makes sense because the other judgments were just building up to towards that judgment. That's the one that is allegedly binding and all that. I don't want to enter that debate again, for now for present purposes. But what we want to flag out and which will also assist in focusing our questioning, and hopefully the questioning of the Members is the following. It's a bit of a concern for us because when these judgments are being summarised, quote unquote, by the evidence leaders – for the second time now, if not for the third time, there is a focus only on the majority judgment of the Constitutional Court. We want to disabuse the process of that notion. Of course, the majority judgment is a majority judgment and lawyers know what the implications thereof are. But against the background of what this exercise is supposed to be about, this entire enquiry, which is effectively to revisit some of those issues. Otherwise, as we have said many times there would be no point in having this enquiry. We could simply all just read the judgments and then, you know, pass our verdict, so to speak. In our view, the purpose of having this process is exactly to relook into those issues because of the warning that was given by the Independent Panel report – which is that those judgments would have been given in a different context of review proceedings as opposed to the current, shall we call it, disciplinary process for misconduct and/or incompetence. Now the importance of the fact that particularly, as far as the CIEX matter is concerned, there was quite a strong dissenting judgment which was issued by Judge, Justice Mogoeng CJ, and Justice Goliath. And one might say an equally strong majority judgment issued by Khampepe J and Theron J. We simply want to at this early stage highlight that, at the end, when we are arguing the matter and both in writing and otherwise summarising – our approach is going to be that the judgment and particular aspects of the judgments of the minority should be preferred, for various reasons which we will canvas with the witnesses and also in argument. Again, I don't want to go into the legalities of the issue. Some will say, no, you must ignore the minority judgment. Others might say, as if this was a court, no it's only the majority judgment that should be looked at. We'll have all those niceties and all those arguments at the right time. We know that the evidence leaders hold the view that the judgments should just be binding, quote unquote, whatever that means in the context of an enquiry. We have expressed our view as to that question, both at the beginning and in the cross examination of Mr Pillay, for example. I'm not entering that terrain. I'm simply highlighting the fact that there are those judgments. The second judgment, in particular, the minority judgment, held quite sharply different views, in respect of the conclusions that were reached by the majority on the key issues; namely, whether there was bad faith, for example. Or whether it's important the fact that there was a meeting with the Presidency. Is it something of significance or of no significance. And Chair, if you allow me, then the last thing I'm going to do, promise, in respect of that, of putting that perspective is just to illustrate the point. I will read out some of the passages in the Mogoeng CJ judgment and CIEX because that will also feature in my questioning. May I do that Chair?

Chairperson: Yes, proceed but you’re just going low on your volume.

Adv Mpofu: Oh, let me do the magic trick. How is that now, Chair?

Chairperson: Okay, its fine. Go ahead. Thank you.

Adv Mpofu: Thank you very much, Chairperson. Right. Now the judgments for anyone else who might be listening: The Constitutional Court judgment is reported as Public Protector v South African Reserve Bank 2019, volume six, SA 253. There are, as I've already mentioned, two separate judgments. The one that I'm going to be dealing with now, well the evidence leaders have dealt with the majority judgment. The one that I'm going to talk about is the minority judgment of Mogoeng CJ and Goliath AJ. I'd like, again, from Members of the Committee when they read this, it's not a very long judgment. I'm sure, well that's a relative thing for lawyers and non lawyers. But the passages I would recommend for anyone who doesn't want to read the whole thing, in respect of the minority judgment, would be from round about paragraph 56, which deals with gross negligence and bad faith in the context that I've already mentioned. Then from bad faith is paragraph 71 up to 89. So effectively, the core of the minority judgment is paragraphs 56 to 89. I promise I won't read all of them, but I'm going to read substantial portions thereof. Right and the background to this is the basis upon which the Constitutional Court would have found that there was bad faith and gross negligence and so on, which then leads to the motion that the Public Prosecutor must be impeached for those reasons. I’ll start at paragraph 57 where the Chief Justice said the following, the Reserve Bank says that it would have explained why the proposed constitutional amendment should not have formed part of the remedial action and why an investigation by the Special Investigating Unit should not be ordered. So the contention is that there was no disclosure of meetings when this was reasonably expected to be done. There was no further consultation with the banks before the final remedial action was taken. This, the Reserve Bank says, denied it the opportunity to make representations that could possibly have averted a remedial action that could lead to an investigation by the SIU and the constitutional amendment by Parliament. Remember, the then Public Protector, Ms Thuli Madonsela, had already expressed a preference for an investigation in her provisional report, namely a judicial commission of enquiry. Her successor, Ms Busisiwe Mkhwebane, says that after her meeting with the Presidency, incorrectly referred to as having been part of what occurred on 25 April 2017, in her answering affidavit. She realised that the commission route might be problematic since its legality was already a subject matter of litigation in relation to another Public Protector’s report. Hence, her switch to the SIU approach. Just to pause there. The other report referred to everyone will know is about her State Capture report, that the witness mentioned. There was litigation at that stage as to whether it was competent for the Public Protector to issue remedial action, which calls for a commission of enquiry. So that was the reason why she was exploring alternatives. Next paragraph: Besides, something needs to be put into proper perspective here. In her answering affidavit, the Public Protector alludes to what is in effect the meeting of 7 June 2017 or both April 2017 and June 2017, as the meeting of 25 April 2017. All things put together, part of what she attributes to the meeting of April actually relates to that of 7 June as her notes of the latter meeting show. What matters is the content of the discussions and the acknowledgement that the meeting had a role to play in the final determination of the remedial action taken. It cannot therefore be a consequence of a correct and fair assessment of the Public Protector’s version to conclude that she only disclosed the meeting of April 2017 but concealed or was totally secretive about the fact of the one of June 2017 taking place. Doing so could reasonably be misunderstood as being symptomatic of a desperation to find fault. Now, let me pause there again. What the charges were saying is what I think Adv Bawa mentioned this so called secretive meeting this morning when she was summarising. It was that it didn't make sense why it would be of any significance, and it was referred to as a desperation to find fault. Then the next paragraph says, so what was gross about her negligence, extremely opprobrious clearly or indubitably vexatious or reprehensible by the conduct in relation to, a) her interactions with the Presidency and the State Security Agency. Two, her treatment of the transcript of minutes and she not affording the banks the opportunity to be heard for the second time after the provisional report was released to interested parties. What harm, actual or potential, was to flow from the Public Protector’s conduct that would explain the ‘grossness’ of the negligent conduct. Put differently, with reference to the Special Investigating Unit investigation, reprehensible as the Public Protector’s conduct might be or is, what damage did she occasion or could cause by ordering a different kind of investigation from the one already proposed in the provisional report, of Adv Madonsela. That is my addition. Then the learned Judge, the Chief Justice then says, if it was in law wrong or negligent of Ms Mkhwebane to have changed from an investigation by a judicial commission of inquiry, proposed by Ms Madonsela, to an investigation by a specialised prosecutions unit, then negligence cannot be gross for that reason alone. For it would be no more than a change of the vehicle for doing the exact same thing, based on a wrong understanding of the law. That extends to her understanding that because the Reserve Bank was not being asked to initiate any process, no remedial action was being taken against it and it was therefore not necessary for it to be consulted. The reality is that although the Reserve Bank has a material interest in this lifeboat related process, since its fingerprints are all over it, when it was directed by the Public Protector to offer its inevitable cooperation in the investigation, it was not required to act unless others, the President and the Special Investigating Unit, did. It ought therefore to be understandable how an error, if it be, could be made by any reasonable person on the basis that, since they had been consulted after the provisional report, a second consultation in relation to the same report was not necessary. I'm about to finish this section, Chair. Then it goes on to say, after the provisional report was issued, and after consulting with the Reserve Bank, the Public Protector consulted with the Presidency at the latter’s request. This, the Reserve Bank says, she should not have done since the Presidency has nothing to do with her key recommendations or remedial steps, particularly the possible constitutional amendment as it relates to or impacts on economic issues. The Reserve Bank contends that it should have been consulted about economic issues and Parliament consulted about a constitutional amendment instead. But this is an erroneous contention. First, the President of Republic has a critical role to play in the affairs of this country, including the attainment and safeguarding of good governance or the creation of a corruption-free and truly law-governed environment, especially as regards constitutional institutions. The Reserve Bank must be trusted to ‘perform its functions independently and without fear, favour or prejudice’. There must therefore be no reason to believe that this constitutionally-ordained facilitator of ‘balanced and sustainable economic growth in the Republic’ is favourably disposed to some players in the economy, in disregard for its mandate, or that it could even as much as consider entering into an unlawful contract at a great financial loss and to the prejudice of the interests of the general public. Allegations of corruption, illegality, or impropriety, especially those relating to an amount in excess of R1 billion, appear to be sufficiently serious to warrant credible closure via the medium of a thorough investigation, however old the subject matter of investigation might be. And on this both Ms Madonsela and Ms Mkhwebane fundamentally agree. I'll jump the next paragraph. Then 64, the Public Protector got the law completely wrong by acting as if it was open to her to direct Parliament to amend the Constitution and even in a specific way. She, like any other citizen, could of course suggest, but most certainly could not take remedial action, to that effect. How then is the gravity of the negligent conduct to be gauged in this connection? Is it with reference to the radical departure from the norm the failure to appreciate the vital limits of her constitutional powers or with special regard to the deleterious effect of the proposed amendment? Is the determination of the seriousness or gross nature of the negligence relating to the amendment not context-specific? Then the Chief Justice goes on to say that it is context specific. I'll start the next one from the second sentence. Therefore, any endeavour to that end may rightly be criticised and dismissed as bereft of seriousness given the nature or intricacies of law-making or constitutional amendment and Parliament’s functional independence. The Public Protector’s remedial action was a known or predictable non-starter in legal circles. The Reserve Bank has access to the best of the best lawyers who could, as urgently as was considered necessary, have calmed their unnecessarily and unreasonably aroused nerves or jitters, and those of the markets, that there really was nothing to worry about. Sentiments and sensationalism aside, an objective, reasoned and calm approach to the Public Protector’s ill-advised or over-zealous proposal must inevitably lead to the conclusion that it was inconsequential, never posed any real, but only an imaginary, threat to the well-being of the Reserve Bank, and all other interested parties, including the reasonably informed economic forces or markets. The remedial action was bound to be set aside with ease. Unsurprisingly, this is important, the Public Protector did not even oppose its setting aside. Then there's a discussion on the issue of the vulnerability. I'm jumping to 67. As for meeting with the State Security Agency and discussing the Reserve Bank’s vulnerability, it must not be forgotten that it was the State Security Agency that virtually initiated the investigation. That’s the point I made to Mr Kekana, to recover whatever the Reserve Bank had given away illegally, that culminated in the CIEX report. A meeting with them was most appropriate and we all must be loath to readily infer cynicism from that meeting. Once being held, anything including the Bank’s vulnerability could legitimately be discussed. It is astounding that knowing this, the High Court still went on to conclude that ‘her discussion pertaining to the Reserve Bank cannot be justified in any manner’. It is a factual misdirection. 60 And so is the finding that she was overly secretive about their meeting. How can a ‘secretive’ person go so far as to waive the classification of the record of her discussion with the same State Security Agency, of her own volition? Besides, the discussion of the Reserve Bank’s vulnerability is not one of the reasons relied on by the High Court to make the unprecedented order that it made. It thus ill-behoves any court to augment the deficient reasoning of the High Court with the vulnerability issue. Then it goes on about the transcript or the minutes, and that's Mr Kekana’s minutes, that we've already spoken about. Then the last paragraph 69 says, it bears emphasis that she was under no legal obligation to record and transcribe her meetings with the President, the State Security Agency or even the Banks. It is inappropriate to use her departure from her own practice and her failure to explain it as one of the grounds for awarding exceptionally high personal costs against her. For it does appear that a lot is being deduced from the record and conduct of the Public Protector that is not borne out by the facts and the law. What cannot be denied is that in her somewhat incongruous handling of some of the issues relating to her investigation and reporting, the Public Protector ultimately disclosed all that is foundational to the possibly alleged grossness of her negligence or the non-disclosure relied on by the Reserve Bank. Apart from the High Court’s failure to rely on gross negligence and explain how it was proven, the facts do not bear it out. Then the next section is the one that deals with bad faith. I'm not going to read it. I'll just pick out one or two issues. Let's start at 72. The correct approach to determining the existence of bad faith is therefore one that recognises that bad faith exists only when the office-bearer acted with the specific intent to deceive, harm or prejudice another person or by proof of serious or gross recklessness that reveals a breakdown of the orderly exercise of authority so fundamental that absence of good faith can be reasonably inferred and bad faith presumed. This is so because the mischief sought to be rooted out by rendering bad faith so severely punishable, particularly within the public sector space, is to curb abuse of office which invariably has prejudicial consequences for others. Abuse of office undermines the efficacy of State machinery and denies justice and fairness to all people and institutions. For, a person who acts in bad faith is one who hopes to get away with a surreptitious connivance to harm the unsuspecting other. Within the context of this case, the High Court would have had to be satisfied that the Public Protector sought to disadvantage the Reserve Bank, acting in cahoots with the Presidency or whoever else. Not only would the prejudice have had to be explained by the High Court, but the conspiracy or connivance insinuated would have had to be kept ‘classified’ by the Public Protector for the devious scheme to succeed. Neither the President nor the State Security Agency are competitors with the litigating Banks nor did they initiate the investigation by the Public Protector that culminated in the final remedial action. It is Mr Hoffman who did. That’s the complainant. The question of favouritism or partiality does not therefore arise. Much more would have had to be said by the High Court in support of the alleged partiality or lack of good faith of the Public Protector, especially because of the prominent role these factors played in awarding personal punitive costs. Yes, I'll jump to 76: Turning to a somewhat different subject, the President would have a role to play in the reopening of the investigations into the lifeboat saga by the Special Investigating Unit. Partiality or bad faith cannot therefore flow or be reasonably inferred from the fact that the President was consulted about this matter. The Presidency has a material interest in matters concerning the possible disregard for the law or impropriety of a very important constitutional institution like the Reserve Bank and deserved to be consulted. Nothing sinister or anything that smacks of lack of impartiality or independence ought to flow so effortlessly from that meeting. The Dr Tshepo Mokoka issue calls for attention as it relates to or seems to undergird the thinly articulated bad faith requirement. On this one, just to save time Chair, I'll summarise what is stated from paragraph 78 to 81. Effectively what is said there is that the Public Protector, one of the reasons why she was criticised for having to pay for dishonesty, bad faith and all sorts of things, was because she said she had consulted with economists, with economic experts in plural. It was agreed by everyone that Dr Goodson, you might remember him being referred to in Mr Kekana’s evidence, was an economist. But it was wrongly assumed, we will show this when we give our evidence, that the plural reference was to a Dr Mokoka. Who was, it was common cause only consulted after the investigation. But the Public Protector has explained that the other economic expert in that context was that Dr Moodley, who happened to have worked at the Reserve Bank, but was working at the State Security Agency. So that's what's discussed in the paragraphs that I'm jumping. Then I go to paragraph 82 which is what those judges then concluded around that issue. They say: A deceitful or dishonest functionary would not herself have exposed ‘her lie’ or allowed anybody acting on her behalf to do so, especially to those who she knew would or are clearly determined to use it against her. This explains why the Minister did not disclose anything about the work streams. A commonsensical approach to real life issues militates against the adverse inference or conclusion sought to be drawn or reached. This is not a case of being caught or found out. The Public Protector laid it bare herself. A dishonest conspirator, as the Public Protector is made out to be, would in all probability have shredded or concealed the documentation. Not even a rule 53 application has the necessary force to compel a fraudster to discover what she is intent on concealing in order to deceive successfully. Interestingly, for her to know which documents to disclose, logic dictates that she would have had to read her handwritten notes that expose the ‘plot’ or the ‘deception’ by revealing information about the 7 June 2017 meeting. The notion that she was being partial or acted in bad faith and that it is the only reasonable inference to be drawn from her failure to disclose this information and to not consult with the Banks, lacks substance. It must be emphasised that the conclusion that she was dishonest or deceitful is belied by her declassification of notes of her meeting with the State Security Agency, her somewhat belated disclosure of all the other information including the dates of the meetings, her contemporaneous notes of what was discussed and the effect of the meeting with the Presidency on the choice of the vehicle for investigation. I jump to 86. In sum, the bases for the presumably alleged partiality or bad faith are just too thin and unexplained. Considerations of justice demand much more to conclude that these have been demonstrated. Besides, there is much to be said for the Public Protector’s contention that just as partiality or apprehension of bias in relation to Judicial Officers is not to be lightly inferred, so should it be with the Public Protector. That stems from a presumption of impartiality in their favour which has more to do with the weight of the constitutional obligation imposed on them to act without fear, favour, or prejudice. That presumption applies subject to appropriate adjustment to the Public Protector who is similarly required to act in terms of that constitutional injunction. No wonder even a High Court Judge may be appointed to the position of Public Protector. Yes, I think I'll stop there and invite Members to read some of those comments for themselves. But that is the perspective that we have been finding to be missing in the multiple summary of the judgments by the evidence leader. I'm sure it was not. Maybe it was based, honestly, on the notion that the minority judgment does not count. But it does because that's exactly what we're going to be arguing in the end. That the analysis, that was the very lucid analysis of the Chief Justice, is what should be preferred. We have already demonstrated, for example, on the vulnerability issue that the Public Protector was being unfairly targeted for something that Mr Kekana has suggested was his own notes to himself. We've also demonstrated the issue of the so called economists and we will continue doing those. We intend to do that also via this witness, Chairperson. With your permission. Can I therefore then start with the witness?

Chairperson: Just before you do that I recognise Adv Bawa.

Adv Bawa: Can I just make one correction? I was not dealing with the majority judgment of the Constitutional Court this morning, ignoring the minority. I had said quite clearly I was only dealing with the full bench and I would come to the Constitutional Court judgment again.

Chairperson: Thank you for pointing that out. Adv Mpofu, you may proceed.

Adv Mpofu: Thank you, Chairperson. I just want, in quick response, to that to say that Adv Bawa did refer to the judgment. I think even the issues about the secretive nature and the findings on bad faith, and so on, but that's fine. I don't want to quibble about that. She did say that she was going to start with the Murphy judgment and take it right up to the to the ConCourt judgment. But in any event whether she did or not the Independent Panel correctly pointed out that the focus should be on the Constitutional Court judgment. Thank you, Chairperson. Good afternoon Adv Tshiwalule.

Adv Tshiwalule: Afternoon Adv Mpofu.

Adv Mpofu: How are you this afternoon?

Adv Tshiwalule: I'm doing very well, how are you?

Adv Mpofu: I'm very well, thank you. Thank you very much. Yes, you know, as we indicated, there are large sections of your affidavit which we don't take issue with. So the cross-examination is really mainly for clarification purpose. It will be relatively painless. That's because, as we understand it, really your role here is unlike those other witnesses who have an axe to grind or are disgruntled and all that. You are just here to assist the process, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And yours is just to give perspective and we assume that the evidence leaders wanted for you to give the historical perspective, particularly on the CIEX matter, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Right. I just want to confirm that just for perspective and context. I mean, you are an advocate, you know the importance of context, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And here, first of all, we're dealing with a report for events which, or rather an investigation which started round about 2011. To your knowledge you may not have been involved with it but around 2011, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Right. I'm sure you would agree that it took much longer than it should have this investigation, correct?

Adv Tshiwalule: Correct.

Chairperson: He said.

Adv Mpofu: Sorry, I missed that. There's something, that means there was something wrong on our side. Thank you very much. In that, thank you for that, in that surely an investigation should not take almost the full term of a Public Protector. From 2011 up to 2016 would be about six years, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Be that as it may, it is also so that the… I'm just jumping towards the other extreme now, towards the end, you have correctly pointed out that Adv Madonsela was quite determined…it was one of the reports that she would have wished to issue before her term expired, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: But as these things happen, that last rush that you and her participated in did not result in the issuance, in the finalisation of the report, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: That, just to digress a little bit, there were, let's say, three, at least to my knowledge, and you might correct me if I'm wrong, three big investigations which she had hoped to finalise before she leaves but somehow failed to do so. One of them was the CIEX report, as we've just confirmed. The other one was the Vrede report. Then of course, the well known State Capture report, correct?

Adv Tshiwalule: Correct. There are also others, I think, just to add on that. There were number of them. I think there are more than 10 reports that she had wanted to release. I do recall the investigation regarding I think the Free State website. There was also an investigation about Mandela funeral. She wanted that finalised as well. There was also an investigation regarding the funds that disappeared in the North West. A lot of work is done on that but obviously there were things she felt that they still needed to close off or finalise before those reports could go out or the section 7(9) notices could go out.

Adv Mpofu: Yes, fair enough. So what I call these three big reports, you’re simply saying that they were part of a bigger pool of reports that all things being equal she would have wanted to finalise before her departure, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: One of the disturbing features – coming back now to the CIEX report – is the fact that, you will remember, this is one of the things that Adv Mkhwebane is criticised for; is her alleged failure to adhere to the five day promise, which was made to the Reserve Bank. That they would be given prior notice of the final report, something like that, do you remember that?

Adv Tshiwalule: You're referring to the 10 days. I think it's 10 days. In a meeting that I was not part of, I do recall that counsel for, I think, Reserve Bank wrote to the PP inquiring about that. That there was a promise that they will be given a report. They will be given 10 days within which they will then comment on the provisional report before it was released. That's all I can remember as far as that is concerned.

Adv Mpofu: Actually it was both a 10 day and a five day promise, alleged. 10 days, I think you're right before it should be…alright, I'll find it now. But okay, putting aside the number of days. The point I was really driving to is on their version that promise had been made in 2013, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: September 2013, to be exact.

Adv Tshiwalule: Correct.

Adv Tshiwalule: Yes. There was even a letter which they say they wrote, I think in September 2013, which had not been answered by 2016.

Adv Tshiwalule: Yes, maybe to provide context to that, Adv Mpofu, through you, Chair. That letter relates, if I my memory serves me well, it relates to an argument that was being raised by Reserve Bank and, I think, the Minister of Finance, if I'm not mistaken, or Absa. Their argument was that these investigations lead to issues that predate the establishment of the Office of the Public Protector and that we should actually not touch it. When I joined the investigation these issues were brought to my attention as well. That the reason the investigation has stalled so much was because there was this to-and-fro and arguments that have been raised by the parties involved that well, why are you investigating this issue? It's dead wood. It's an issue that happened even before your Office was established. But I remember advancing an argument that says the issue here is not about the things that happened prior to the establishment of the Office of Public Protector but rather the issues are about what the government did, or when the government entered into their agreement with CIEX. That was done after there was the establishment of the Office of Public Protector. We are only mainly focusing on that and we're not focusing on what transpired between '85 and 1992. To be precise.

Adv Mpofu: Fair enough. Yes. But nevertheless, thank you for that background. If you go to page 3291. That is a letter from the Reserve Bank to the Public Protector. Quite a long letter. The letter actually starts at 3285. Maybe we should just run it from there. It's quite a comprehensive letter, just to show you. Yes. Okay. It's a letter from the Reserve Bank to Adv Mkhwebane. Can you just run it until we get to 3291. I just want to demonstrate that it's quite a longish letter and detailed. You remember this letter, advocate?

Adv Tshiwalule: Yes, I do.

Adv Mpofu: Yes. In your statement, I think it's just a mistake, you refer to that letter as coming from Mr Chris Van Der Walt but in fact it came from Adv De Jager, correct? Or Dr De Jager?

Adv Tshiwalule: Please go down to the last page so at least I can confirm that.

Adv Mpofu: Yes, that will be 3294.

Adv Tshiwalule: Yes. You're quite correct.

Adv Mpofu: And if you go to 3145, which is your statement? Sorry. Yes, you will see that you say on 25 November 2016, we received correspondence from Mr Chris Van Der Walt of the SARB. I'm just saying that, unless if I'm missing something, from my recollection, this letter was actually 25 October 2016. And also it came from Dr De Jager and not Mr Van De Walt. That's not important. I'm just simply saying, just making sure that we're dealing with the same letter. Am I right?

Adv Tshiwalule: Correct.

Adv Mpofu: Thank you. Okay. All right. So subject to those minor corrections, for the record, Chair, the letter therefore, it was actually 25 October 2016. It came from Mr De Jager so the necessary changes would have to be made to paragraph 22 of the witness statement. But as I say, nothing much turns on that. Now we can then go to paragraph 3291 which is where I was leading to. Just to confirm that around there where they talk about Ms Marcus and Mr Mboweni, just keep rolling a little bit, to confirm what you're saying, advocate, that there was this discussion about prescription. Rather, jurisdiction I think is a better word. Namely, in terms of section 6(9) of the Public Protector Act, whether the Public Protector would have been entitled to investigate something that was older than two years, in terms of its occurrence. That's what you're referring to?

Adv Tshiwalule: Correct.

Adv Mpofu: Yes. Okay. We'll come back to that. What I want to discuss for now is if you go to 3.12. Yes, that this is the complaint that the Reserve Bank was raising in the letter that they had written in 2013. They say there was no response to this letter from the Public Protector for about three years. Do you remember that?

Adv Tshiwalule: Yes, I do.

Adv Mpofu: Yes, and it is in that context, where I was saying that this particular report really should have been finalised earlier. I think you have agreed with me on that, correct?

Adv Tshiwalule: Yes, I do agree with you and for the reasons I provided which I was told why there was that delay. I want to make sure that I stress those.

Adv Mpofu: And it was before your time?

Adv Tshiwalule: Yes, it was before my time. I had to inquire why this had taken so long, obviously. As you've indicated it was unusual for an investigation to take this long. I noted why it did as the reasons were provided to me.

Adv Mpofu: This Public Protector, Adv Mkhwebane, I'm just trying to find if your comment would be or rather you'd agree with me, once again, dealt with this matter as a matter of priority. Correct?

Adv Tshiwalule: Yes.

Adv Mpofu: And she dealt with it with the due efficiency that it required in that, for example, she will, according to your testimony, within a matter of weeks of her taking office she was already asking you and you are giving her the boxes and all that. The evidence that you've already given, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Yes. The result of all that was that, in fact, I thought you were being slightly unfair on Adv Mkhwebane and I don't think you intended to. When you said in November, she had not yet read the boxes. This would have been understandable because she’d just taken office, it was hardly a month after taking office, correct?

Adv Tshiwalule: Are you referring to the paragraph of my affidavit where I mentioned the issue of me asking her whether she had already gone through the evidence?

Adv Mpofu: Yes, I'm referring to that and I think you also commented on it this morning. I'm simply saying that, if you look at it in perspective, she acted with due efficiency given the fact that this investigation was already six years old. That within two or three weeks, there had already been an exchange of the boxes between you and her and the downloading of the information. And given the fact that it was not the only report that is outstanding. I'm not making a big thing out of it. I'm simply saying that she had acted with deliberate speed.

Adv Tshiwalule: Yes, I would say so. I agree with you.

Adv Mpofu: Thank you very much. Now, the other issue is that you had again correctly pointed out that, in your estimation, one of the reasons why you have been retained in the Private Office was for the sake of, shall we call it, continuity and institutional memory, correct?

Adv Tshiwalule: Yes, correct. I think I must qualify that, Adv Mpofu. I didn't, obviously in the beginning, because I saw things that were happening in the Private Office. Where other people, for example, Chief of Staff and other officials who were working with Adv Madonsela, including PAs and also the secretary, when they were all told that they should now go and report elsewhere in different units. When I was retained, I had a discussion with my colleagues, why am I still there? Why? Because I thought I was going to be taken out of that particular space by virtue of working with the previous PP. But obviously, I had an understanding that I was a professional. I didn't have any allegiance to Adv Madonsela. You know, she didn't even know me when I was appointed there. So similarly, I will continue to work with the new PP. So that was the issue. But obviously, I was concerned that the officials working with me, all of them are out of that space, and there are new people that I now have to work with. So that was just an issue that I noted as well.

Adv Mpofu: Yes, no, fine. I don't think there's much to be said about that. Have you worked in government before?

Adv Tshiwalule: Yes, I have.

Adv Mpofu: So which department?

Adv Tshiwalule: I worked at IDT, Independent Development Trust.

Adv Mpofu: Okay, not in an actual department. But knowing, working in that space, you know, that, for example, this is for what is known as the Private Office of a Minister. Normally when there's a change of Minister those people either go with that Minister or the new Minister brings their own private staff; but in the DG’s office, for example, that there’d be permanent continuity. You are familiar with that?

Adv Tshiwalule: Yes, I am.

Adv Mpofu: Thank you. All right. So you, at least, you found alternative employment of your own volition, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: You were not purged or anything like that. You just found another job.

Adv Tshiwalule: No, I was not purged. I found another job and I felt that I had already done my part. There were similar engagements I had with Adv Mkhwebane because I sent her my letter of appointment and she congratulated me for that. Obviously she was concerned that I would be leaving some work that I had not yet finalised. Following that there were just engagement that is normal where people say we could try and counter your offer or whatever, but it didn't get to anything, that I can obviously say.

Adv Mpofu: Okay, no, thank you very much. No, in fact, that is the evidence that Adv Mkhwebane was going to give. But thanks for confirming that far from purging you, she was actually trying to retain you if she could, but obviously, your other offer. We won't ask you how good that other offer was.

Adv Tshiwalule: They couldn’t afford me. Let's put it that way. They couldn’t afford me.

Adv Mpofu: Thank you. But of course, there was that qualified…although she congratulated you, she did point out…because obviously she was apprehensive about if you were going to say, I'm leaving tomorrow; I'm not saying that's what you intended to do. But it was important for there to be that 30 day period so that you could do a proper handover of files…the files that were straddling between Adv Madonsela’s era and the new era, correct?

Adv Tshiwalule: Correct.

Chairperson: Adv Mpofu, maybe on that point if we can ask you to pause. We'll take a lunch break and be back at 2.

Adv Mpofu: Thank you, Chair. That's convenient. I was going to start a new topic.

Chairperson: Thank you very much. We pause for lunch.


Chairperson: Thank you. Are you there, Adv Mpofu?

Adv Mpofu: Yes, Chairperson. I’m here, thank you.

Chairperson: Thank you. I now hand over to you to proceed. Welcome back. Thank you.

Adv Mpofu: Thank you, Hon Chair. Good afternoon Adv Tshiwalule.

Adv Tshiwalule: Good afternoon Adv Mpofu.

Adv Mpofu: Okay, so we were still just talking about the, what I call the unfinished business. It would be fair to say then that some of these hot potatoes, as we describe some of these investigations, would not have landed on the lap of Adv Mkhwebane had they been finished in time. Correct?

Adv Tshiwalule: Correct.

Adv Mpofu: In particular, with the CIEX report, as I understand it, Adv Madonsela even wanted to release it on her last day of work. Or at least there was a suggestion that it would have been released on 14 October, which was her last day at the office, correct?

Adv Tshiwalule: Yes. The prelim would have been released by that time.

Adv Mpofu: The provisional reports, of course, yes.

Adv Tshiwalule: The provisional report, yes.

Adv Mpofu: But even that plan failed because of what I call the mad rush of the last few days. I was involved in the whole State Capture litigation saga. So basically, the planned release of the CIEX report did not materialise, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And the same goes for the other, the Vrede report. That also, it became impossible to finalise it before her departure, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And we all know the story of the State Capture report that if it wasn't for the litigation that I've just referred to, that we were involved in, that would have also been left hanging. Correct?

Adv Tshiwalule: The intention of the PP at that time was to release that report. I think, if I recall quite well, there was an issue about an interdict. That's what I recall. That's the reason why the report was not released but it had been finalised at the time of her leaving the Office on 14 October.

Adv Mpofu: Yes, actually, what happened, but I'm sure some witnesses will talk about this. What actually happened is that, you're quite right, on the 13th there were two interdicts that were brought to block the release of that report. And eventually the courts, we made an arrangement in court that it should be, for lack of a better word, quarantined and given to the Speaker. As a result, it was only released, I think, on 3 November 2016, when the new Public Protector was already in place. Without knowing the exact dates would you agree with that sequence of events?

Adv Tshiwalule: Yes, no, I do agree with that sequence of events.

Adv Mpofu: Thank you. Now, then of course, there was also this problem of leakages. Which was a bit of a difficult thing to deal with. Because on the one hand, you had an obligation to give people their audi rights. But on the other hand, the reports were being leaked to the public media, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And one of the ways in which this was to be dealt with, as discussed at Think Tank with the new Public Protector, was this idea of releasing section 7(9) notices rather than provisional reports, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And I think you've explained correctly, that the new regime, as it were, was only going to apply to new reports going forward. But it didn't apply to, for example, the CIEX report, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Now, I just want to explore something with you, which is this. Putting aside the unfortunate reasons why the report was not finalised in time; why it took so long, almost five to six years. The point of the matter is that once it was not finalised then the new Public Protector obviously had to read the boxes that you gave her and put her own flavour or her own gloss on the issues, correct? Hers was not simply just to rubber stamp and sign the report as it was, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: It was in that context, therefore, that among other things she asked you to investigate. After she had read the evidence that you had given to her, one of the things she asked you was to do the investigation about how other reserve banks operated worldwide, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And you said that you did that work. You understood that it was coming from whatever take she had on this report, correct?

Adv Tshiwalule: There was no explanation per se for me, and that's why in my evidence, I do indicate that I find that to be, for lack of a better word, bizarre. In the sense that there was nothing from the complaint or from the complainant that suggested that perhaps he wanted us to take that route of perhaps looking at how other central banks around the world, you know, their mandate and whether they're state owned or they're privately owned and all those things. I had an issue with that part, even though I didn't ask her why we had to go that direction. I did that nonetheless.

Adv Mpofu: Yes, no, but that's exactly where I want to go. I mean, if you found it bizarre is it not more bizarre that you would investigate something that you did not understand? Why did you not ask her why she wanted to explore that angle?

Adv Tshiwalule: There were many things that we were dealing with during that particular time; be it doing legal research for her and also this part. So for me, I thought that there will be an opportunity at a later stage that this will be discussed. If you look at the prelim report, the issue about other central banks around the world, I don't think it did even feature in the report. Probably she had been thinking about it. But she didn't proceed with the idea of probably putting a version that would suggest that in other banks around the world, the central banks around the world, this is how their mandate is crafted. And perhaps we should follow that. That didn't find expression in the prelim report. So that's why I didn't find it to be anything of import for me. I would have asked her at the time when the final version was prepared – when that is now in the final version that she was going to cite what the context was, you know, in as far as suggesting that particular part, but it didn't find expression in the prelim report. It had no value for me.

Adv Mpofu: The point I simply want to make, Adv Tshiwalule, before we move on from this, is that I understand therefore from your evidence that you agree that you should have asked for an explanation but because you were busy, you did not do so?

Adv Tshiwalule: Yes, but my evidence is, I was going to ask her if that information had obviously been brought to the provisional report before it was signed, what the reasons were. She would agree with me that I was quite a person who would ask almost everything that was going on when she joined the Office. I was not a person who was going to just let an issue go without understanding it. In this one, that research that we’re were talking about now, did not find expression in the provisional report; so there was no reason for me to really have any issue about that. I just found it to be an issue of her wanting perhaps to understand the mandate of other central banks around the world, but I didn't really have an issue. I didn't really have an issue with doing that particular research as long as it was not going to find expression in the report because we were not asked to do any of that by the complainant.

Adv Mpofu: Yes. Okay. How long, how much experience have you got as an investigator?

Adv Tshiwalule: How much experience have I been?

Adv Mpofu: Did you have as an investigator?

Adv Tshiwalule: I had around three years experience as an investigator, but even prior to joining the PP I had obviously work in other organisations as a person who was doing investigation or the legal departments where I was working.

Adv Mpofu: Yes. You'd agree with the general sentiment that's always expressed – I think it was more forcefully expressed in the Mail & Guardian case – that an investigation is not like an adjudication process. It can lead you to places that you never even imagined when you started the investigation, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: I mean, an example of that, a current example of which you might be aware is the Zondo report, which was meant just to investigate the Gupta alleged corruption from your Office. You remember that?

Adv Tshiwalule: Yes, I do.

Adv Mpofu: And it ended up being what it has been now, four years later, investigating all sorts of things beyond the Gupta alleged corruption, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And it even went as far as making suggestions about constitutional amendments on the voting methods in South Africa, which, at face value had nothing to do with the Gupta corruption, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Yes. So the point I'm simply making is I'm disputing your statement that simply because, or rather let's start here. How could you do research on something if you didn't know where it fits in? In respect of what? How did you manage that, that miraculous feat?

Adv Tshiwalule: Okay, the Public Protector was quite new in the Office at that particular time, you know, as part of obviously ensuring that she understands the investigation and the work that has been done, and the work that obviously still needed to be done. We had several discussions, you know, regarding this particular matter. I didn't have a problem in doing that research, if the research was obviously for her to have a broader understanding of what we're dealing with. That's why I agree with you on the Mail & Guardian investigation judgment that talks about approaching investigation with an open mind and all those kinds of things. But in this particular context, my evidence is I didn't have a problem in doing the research for her to understand the mandate of other central banks around the world, obviously, because that didn't come to the final report. I had no problem. I didn't even ask her why should we do this part because there was no suggestion from her, for example, where I received an email from her that says, as part of us finalising the prelim report, please ensure that this information about the research that you've conducted finds expression in the report. That didn't come through.

Adv Mpofu: No, but you did not know that, if, at the time when she was asking you to do the research, because the provisional report was not in place yet. Obviously, correct?

Adv Tshiwalule: Yes, correct.

Adv Mpofu: Okay, anyway, to the extent that you then did the research, you might not have seen the connection, that's fine. I’ll accept that for now, but she obviously did see the connection between that research and whatever work she was doing otherwise she wouldn't have asked you to do it, correct. Okay, let me repeat it. I'm saying even if I accept for now that you as a person, as you have explained, you did not see the connection between the research you were asked to do and the CIEX matter; obviously, the Public Protector saw some connection otherwise she would not I've asked you to do the research, correct?

Adv Tshiwalule: Correct. I would agree with that version.

Adv Mpofu: Yes. And after all, as you've pointed out to Adv Mayosi, she has the final say and ultimately the report is her report, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And therefore, she would be entitled to take whatever angle she assumes to be relevant to the matter, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Thank you. Let's just then test your statement about…Before we come to that, let's test the statement about the relevance. You know now, obviously, with the benefit of hindsight that the issue of the mandate of the Reserve Bank did find expression, to use your term, in the final report, correct?

Adv Tshiwalule: Yes, I do.

Adv Mpofu: And in that context you probably then were able to, even in retrospect, make sense of why that work was needed beforehand, because it then found itself into the final report, correct?

Adv Tshiwalule: You're asking me if I did have an understanding of why the PP had then came up with the remedial action that says Parliament must relook at that. Is that what you're asking me?

Adv Mpofu: No, let me rephrase it maybe. I'm saying when you eventually saw the final report, were you able to make sense of where the issue of the mandate featured in her assessment of the issues?

Adv Tshiwalule: No, I didn’t. I didn't understand why that features in the final report, but obviously, I was no longer there in that time. So there may have been evidence that was provided by people when they submitted their, you know, response to the prelim report, which may have moved her to that particular direction. It's an area that I would not want to comment because I was no longer with the Office.

Adv Mpofu: Fair enough. I understand that. You've made that clear in your statement as well. The only thing I was asking and I think you've answered, is that, to you when you saw the final report, there was…you didn't then say, 'oh, that question I had in November, when I didn't know where this thing fits in; now, I can see where she was going with it'. That didn't happen?

Adv Tshiwalule: No, it did happen. Whether I agree or not, probably is another question.

Adv Mpofu: That’s a different matter. Okay. That's good. That's step one. Then the issue that then becomes an issue of substance, and I'm going to explore it with you. You would agree that this was quite a, shall we call it, controversial and difficult investigation? I mean, it was unfortunate that it had to be landed on the lap of the new Public Protector. But that involved very powerful players, correct?

Adv Tshiwalule: Yes, I do agree. And also, I think, just to contextualise that, Adv Mpofu. The most difficult part of it was this idea of run on the bank and all those things. So, obviously, that obviously came to us. We had to be very cautious about what we were doing, in as far as that is concerned. Because when people argue that if you do this then there will be a run on the Rand and all those kinds of things. You had to be obviously mindful of the consequences of whatever it is that you're going to come up with, but the investigation outcome is always obviously based on the evidence that you have and not what is happening outside.

Adv Mpofu: I accept that. So, it was complex for those two reasons and maybe other reasons. Firstly, as I said, it involved quite powerful persons. I mean you can't get more powerful than the President of the country, that you had to interview the former President; the Reserve Bank itself, probably the largest bank in the country. That kind of magnitude of role-players was quite significant, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And then, of course, you say that it also involved. There was this, I call it a scarecrow tactic but you might have a different definition. But there was this issue that was always been thrust onto the investigation that this will destroy the economy and the run on the Rand and all that, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Yes. Now. Specifically, and then, of course, the other big issue was this thing of jurisdiction. There was this claim that you, meaning not you personally, that the Public Protector had no business in any event being involved in this because it was it was outside of her jurisdiction, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: But you and the Public Protector were quite determined that you should get to the bottom of this thing. You were not deterred by all those problems that I've just mentioned, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And one of the issues that, I'm now trying to assist you so that you can see maybe the connection between this whole thing and the mandate of the bank of the Reserve Bank. Is it so that one of the findings that Adv Madonsela had made was for improper conduct and maladministration on the part of what was then fashionably known as the three TMs? It involved Minister Trevor Manuel, involved Minister Tito Mboweni, in his later capacity and not as a minister, and also President Thabo Mbeki. Those were some of the role-players, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And she had found, actually, that there was maladministration on the part of President Mbeki and Minister Manuel, among others, correct?

Adv Tshiwalule: Can please refer me to the paragraph of that part so that at least I can with certainty be able to confirm?

Adv Mpofu: Okay, you don't remember that offhand?

Adv Tshiwalule: I do remember but, yes, I do remember but…

Adv Mpofu: If you go to your provisional report. If you go to 3167.

Adv Tshiwalule: 3167?

Adv Mpofu: Yes. You can read against the letter (i), you can read it out.

Adv Tshiwalule: The letter (i).

Adv Mpofu: Yes.

Adv Tshiwalule: Okay. The conduct of the former Minister of Finance Trevor Manuel and former President Thabo Mbeki for failing to process the CIEX report is therefore in violation of section 195, section 237 and section 96(2) of the Constitution and the Executive Members’ Ethics Act of 1998, as well as section 63(2) of the Public Finance Management Act, No 1 of 1999, and thus amount to improper conduct and maladministration.

Adv Mpofu: Yes. You remember, did you write that?

Adv Tshiwalule: This was in the drafts that I had prepared for her, at the time. The former PP.

Adv Mpofu: The former PPE, yes. In other words, you wrote that?

Adv Tshiwalule: Yes.

Adv Mpofu: That's the point I'm making. You had made findings of improper conduct and maladministration on the part of Minister Trevor Manuel and President Mbeki, correct?

Adv Tshiwalule: Yes, correct. Can I just also explain this part so that at least I put context to it? There was an issue. So there was an issue about the government appointing CIEX, you know, Michael Oatley, to be precise to conduct this investigation on behalf of government. And our worry was that state resources were used to procure this service. During the investigation, at no point did anyone amongst all the people that we interviewed pointed us to a situation or a document where there was either a Cabinet meeting where CIEX report was considered by government and this is around I think, '98, '99, 2000. There was no such a document that could be produced that says, 'well, we received the report from CIEX; we felt that its findings are not something that we agree with, probably, and that we decided not to implement that particular report'. At no point did that happen, even in the engagement that we had with all the people that we interviewed. Not even a single one of them, of those role-players who were in government at that particular time, was able to come out forthright and say, yes, we processed this particular report, and we took it a different direction from the one that was suggested by Michael Oatley in his report. So that was the view at that particular time that State resources can't just be used and people then undermine whatever work had been done by the person they appointed. Thanks, Chair.

Adv Mpofu: No, thank you that gives context. Hence, your findings of improper conduct and maladministration against the President and the Minister of Finance, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Now, the issue, and I'm coming to the connection between this, firstly and the Constitution, as well as the mandate of the Reserve Bank. So at least from what we have read, your finding was that the President and Minister Manuel had violated those three sections of the Constitution at least, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Yes. It is also a fact, before we get to that…it was, indeed, one of the explanations given by, for example, President Mbeki in his interview with the Public Protector, was the issue you have mentioned that maybe the failure to collect the money owed, in respect of what was known as Apartheid corruption was because maybe at a particular time it would have had an impact on the Rand, and those kinds of things, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And you, or the Public Protector at least, did not accept those as legitimate reasons for not collecting money what belongs to the South African public, correct?

Adv Tshiwalule: Are you able to point me to the minutes or part of the minutes, or you just want me to confirm if that was her version of the event?

Adv Mpofu: No, I want you to confirm because remember, okay, when I say you, and that's why I'm trying to be specific, you and Adv Madonsela were basically on the same side of this whole debate, correct? Except for one or two differences.

Adv Tshiwalule: Yes, we were. Correct.

Adv Mpofu: So I'll try to be specific, but when I say you accept that I'm putting it in that context. Okay. All I'm saying is that the reason why you, including you and Adv Madonsela, would have not bought these explanations is because you believed that the money should have been recovered anyway, correct?

Adv Tshiwalule: Yes, absolutely.

Adv Mpofu: And so you did not buy the story that it was economically dangerous to collect the money of our people, correct?

Adv Tshiwalule: No, we didn't buy that. I personally did not buy that idea.

Adv Mpofu: Rightly so. To the extent that, and to be fair to you and Adv Madonsela, you were fortified in that belief, by the fact that also Judge Heath had found that the money was recoverable, correct?

Adv Tshiwalule: I can't remember the specifics on Judge Heath, except to say that I think Judge Heath had found that the whole lifeboat was illicit. Yeah, it was illicit. I don't remember vividly what his take was on recovering the monies. I wouldn't want to venture on that, unless you can point me to a section of his report or paragraph where he specifically says it couldn't be recovered. You might be referring to Judge Dennis Davis. Because I remember, I think he did mention that.

Adv Mpofu: No, I think you are confusing what I'm saying. Or maybe I confused you. I'm saying Judge Heath had found, and I’m trying also to remind you if you can do that from memory, but I'll point you to the sections. Judge Heath had found, as you correctly pointed out, that the lifeboat was illegal. So did Judge Davis, correct?

Adv Tshiwalule: Yes. Correct.

Adv Mpofu: The difference between them is that Judge Heath had found that the money was recoverable and Judge Davis felt otherwise. Remember that?

Adv Tshiwalule: I remember Heath. I think Judge Heath did not issue a report. If my memory serves me well. He issued a statement. It's a long statement that he issued. I think it was somewhere in 1999. If I'm not mistaken. I might be wrong on the date. I didn't consider, we didn't consider that to be a report and I must put that forward so that at least it's clear. It was a statement that he issued. The only person that issues a report was Judge Dennis Davis. He's the one that I know he did issue the report that was commissioned or an investigation that was commissioned by Reserve Bank at the time, under, I think, former Governor Mboweni.

Adv Mpofu: Now that is so but it's not correct. You did take into account both the Davis investigation report, but you also took into account the official statement of Judge Heath, isn’t that so?

Adv Tshiwalule: Yes, correct.

Adv Mpofu: The parts that, okay, you want me to refer you to, if you go to 3200.

Adv Tshiwalule: Yes, I’m on 3200.

Adv Mpofu: You said you must have written this, that 'it should further been noted that the Heath Commission conducted its investigation without knowing that the CIEX had investigated the same matter on behalf of government and ruled that the loan or lifeboat is recoverable'. Remember that?

Adv Tshiwalule: Yes I do remember this now.

Adv Mpofu: Then if you go to the next paragraph, just to complete the picture. You then say it is also common cause that former Reserve Bank Governor was a labour minister before appointed to oversee Reserve Bank, I suppose the Reserve Bank, appointed a panel of experts to investigate. I think it's just a grammatical error there. To investigate inter alia whether the lifeboat was illegal offered to Bankorp or not. Judge Dennis Davis ruled that the lifeboat was illegal and advised against recovery. So that's what I was trying to explain to you. Judge Heath said the money was recoverable, although he also had made comments about the run on the Rand and all that. But Judge Davis advised against attempts to recover it. You remember it now?

Adv Tshiwalule: Yes, I do remember it now. Thank you so much.

Adv Mpofu: Thank you. Now more importantly, one of the, I'll call it excuses or reasons, which I say you did not accept, rightfully so, for the non recovery of this money was the fact that among others, Minister Trevor Manuel said, you know, our mandate, or his mandate was to protect the economy. That was his focus and that kind of thing. You remember that?

Adv Tshiwalule: Yes, I do remember that.

Adv Mpofu: So there was therefore a connection between the mandate issues and the alleged reasons for non-recovery, correct?

Adv Tshiwalule: What do you mean when you say the mandate? Can you try and expand that for me so that at least I understand how you are linking it.

Adv Mpofu: Okay, let's start again. I'm saying one of the reason/excuses given for the lack of appetite to recover the money was that the primary role of the Treasury was to protect the economy and therefore, you know, they didn't do anything that would jeopardise the economy. You remember that kind of discussion?

Adv Tshiwalule: Yes, I do remember that.

Adv Mpofu: Yes. I'm saying therefore, if that was then posed as a reason or excuse, then that would have shown the connection between the failure to recover the money and the mandate issues, the broad mandate economic issues, correct?

Adv Tshiwalule: I don't think I have any comment on that part, Adv Mpofu. It's something that I wouldn't want to offer a comment on. Because I think I do agree with you on what former Minister Manuel said on that part, but I wouldn't want to expand it further than that.

Adv Mpofu: Yes. No, Mr, I mean Adv Tshiwalule. I think you're misunderstanding me. I'm not asking you to, to agree or disagree with a view as such. I can understand why you don't want to venture into that. All I'm saying is that, rightly or wrongly, there was a connection that was being proposed, whether it was genuine or not genuine is another issue. That was being proposed between the mandate of the Treasury and the failure to recover the money. That connection was made in your time, correct?

Adv Tshiwalule: Yes, that connection was made.

Adv Mpofu: Yes. It was made before Adv Mkhwebane’s time. It was made to you.

Adv Tshiwalule: Correct.

Adv Mpofu: Thank you then at least we're on the same page. I thought you said you didn't understand the connection between the mandate issues and this report. But to assist you, can I take you to page 3202. This emanates from your discussions with President Mbeki and Minister Manuel. It says there, the President contended that part of the reasons money was never recovered had to do with the economy which had to be protected. Remember that?

Adv Tshiwalule: Yes, I do remember.

Adv Mpofu: Yeah, I think that's supposed to be a full stop. But again, there were some editorial issues. His view was corroborated by that of former Minister of Finance Mr Trevor Manuel, who stated that his primary role was to protect the interests of the economy against any potential risk. Taking into consideration that we were in the process of rebuilding the economy. Remember that?

Adv Tshiwalule: Yes, I remember that.

Adv Mpofu: Yes. When he says his primary role he’s talking about his mandate, correct?

Adv Tshiwalule: Yes. He’s talking about the mandate of the Treasury at the time.

Adv Mpofu: Yes, of the Treasury, which, broadly speaking, covers the Reserve Bank. The Reserve Bank falls on the monetary policy side, but he’s talking about the role of the State so to speak.

Adv Tshiwalule: Yes. Correct.

Adv Mpofu: Yes, so that's all I'm saying. Would you therefore agree with me now, against this background, that there was, and again I must stress I'm not saying you agree with it, but there was a stated connection between the mandate issues of the State, of the Ministry, of the Reserve Bank and so on, and the failure to recover the money? Whether it was a good or bad reason that's another matter, but there was a stated connection, correct?

Adv Tshiwalule: Yes, there was a stated connection.

Adv Mpofu: Good. Thank you. That connection between the mandate of the Reserve Bank, among other things, and the failure to recover the money was made to you and Adv Madonsela long before Adv Mkhwebane was even interviewed by Parliament, correct?

Adv Tshiwalule: You are referring to the mandate of Treasury?

Adv Mpofu: I'm referring to the statement made at 5.4.R3.2. I'm saying those kinds of statements and connections were made long before Adv Mkhwebane came into the picture, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Thank you. Now, and I must stress again, I'm not accusing you of having accepted all these things that were being said. But at least they were said to you and Adv Madonsela, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Thank you. Now, the evidence of the Public Protector will therefore be that the connection between the mandate issues and the lifeboat issue were not her invention but something that she found already, as I've pointed out, already even demonstrated in the provisional report. Obviously, you'll agree with that, because we've just looked at 3202, correct?

Adv Tshiwalule: Yes. Considering that she had an opportunity to go through the reports and the draft report when she arrived and all the evidence. Yes, I would agree and that's also her version because she carried forward with it. There was an opportunity for her to probably not go with that as she had done the other changes there in the report. I'm sure that will be a proposition that will be acceptable as well; that she had an opportunity to amend whatever it is that she needed to amend in the report. As me and you agree that the final say rests with her, in the report, or rested with her in as far as the final report.

Adv Mpofu: No, I'll go even further than you and say that not only did she have an opportunity; she had a duty to satisfy herself on what is in the report. What must be retained must be retained. What must be discarded must be discarded. Because it was now her responsibility. Would you agree?

Adv Tshiwalule: I do agree with you.

Adv Mpofu: Yes. But the point I'm simply making is that she did not discard this question, because probably she agreed with the connection that was being made. You and I can assume that if she did not discard something, she probably agreed with it, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Yes. No, then we're on the same page. The only thing I wanted to illustrate is that this was not her invention. She found it there. And as you correctly point out, she retained it voluntarily, correct?

Adv Tshiwalule: Correct, because it was substantiated with evidence that was there.

Adv Mpofu: Yes. Okay. So this notion that, you know, she expanded or came up with, you know, all sorts of wayward angles to this is not founded by the evidence because statements like these were already in the document, in your document, long before she arrived, correct?

Adv Tshiwalule: Yes, they were in our discussion document, draft document.

Adv Mpofu: Alright. So that then takes care of the first theory that she's being impeached for, is the fact that she allegedly had expanded to this thing, which is completely false. Alright. Now, let's then go to the issue of the next theory, which was the remedial action. You would agree that, okay, let's start with the small issue of prescription. I think there was some confusion between you and Adv Mayosi in relation to the issue of prescription and the ‘in duplum’ rule. Let's take it step by step. Your evidence is that you and Adv Madonsela held different views regarding the issue of prescription, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: You were of the view that the money and again, for what it's worth, I support your side of that debate. You are of the view that this was a lot of money, billions of Rand, that belonged effectively to South Africans stolen by the apartheid regime, and that everything should be done to recover that money, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Adv Madonsela was not of a different view, obviously, about the importance of recovering the money. But she held the view that legally it was untenable because of the Prescription Act, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: You differed sharply with her on this question and your differences were never resolved, correct?

Adv Tshiwalule: Yes, I would say in the final draft that I prepared for her. Obviously, I had to go with her view. People would differ obviously, because of the issues that we would discuss outside, you know, all these things. That's why I had to prepare two reports. When I'm saying outside I'm talking about in our boardroom, where we would be discussing reports. I will say, I disagree with your version and I've done my own research on this. I think I would want you to have a look at this issue and see whether you could be moved with the argument that I'm putting forward or not. So that was just a normal, you know, issue of differing of people that are working together. The same with Adv Mkhwebane. I did differ with her on a few issues as well. It was a normal issue of carrying a different view from the one that was being carried by the PP.

Adv Mpofu: Yes, no, I think you have explained that. I think your evidence is that in fact it was your professional duty to do so. And none of them, you know, took umbrage at the fact that you might express a different view, even if they would insist on their view. Is that correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Yeah. So they were both quite open-ended, rather open headed about those differences. Ultimately, she was, where it was Adv Mkhwebane or Madonsela, she’s the Public Protector. I suppose her view would prevail, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Yes, but in respect of this issue of prescription, and in fairness to you, you did indicate that you even went to the extent of preparing two reports. One supposedly saying the money should be recovered. The other one saying that it cannot be recovered because of prescription, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: But the point I want to make is that your problems were resolved by providence or by coincidence; because once Adv Madonsela was out of the picture you discovered that Adv Mkhwebane actually shares your view on prescription, correct?

Adv Tshiwalule: Yes.

Adv Mpofu: And that must have been a pleasant development for you. Because then you didn't have to have that fight of two reports, correct?

Adv Tshiwalule: Yes, I would agree with that proposition.

Adv Mpofu: As I say, I agree with both you and Adv Mkhwebane and I disagree with Adv Madonsela, because the issue of prescription and anyway you're a lawyer. I don't want to bore other people about it. But the point of the matter is that you felt that the Prescription Act could be overcome, that there would be ways around it, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Yes. Now, that issue is quite separate, but related to the issue that Adv Mayosi was pointing you to, which is the ‘in duplum’ rule, correct?

Adv Tshiwalule: Yes, correct.

Adv Mpofu: Yes. If you look at it on both sides, and again maybe we should explain to the people who are not lawyers. I'm one of those people who I’m against this use of Latin when it's unnecessary. So the ‘in duplum’ rule simply means that if I lend you well, in my case, it wouldn't be more than R10 000. If I lend you R10 000 and you don't pay it, then I can only ever recover R20 000 from you. You agree?

Adv Tshiwalule: Yes, I agree.

Adv Mpofu: In other words, what it means is that the interest charged on a loan should never be allowed to exceed the capital that was lent. That's the simple rule, without the Latin. That's really what the rule means, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And that's the issue that you introduced. The only relationship between that and prescription is the fact that obviously, if the matter was not recoverable then you can't even start talking about the ‘in duplum’ rule, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: So your debate on the ‘in duplum’ rule was once again based on your firm belief that the money was recoverable, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Now if you then go to I think it's 8.4.R3.2. I think its 3374 if I’m correct. Yes, page 3374. Actually it starts at 3372. Can you just go back a little bit? You have already confirmed that that paragraph, which I'm not going to read, but which explains the ‘in duplum’ rule in the report was inserted by you, correct?

Adv Tshiwalule: Yes. Correct.

Adv Mpofu: And you cited the authority of that being the case of Margo v Gardner, the 2010 case, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And the point I want to make about this is the following, and Adv Mkhwebane agreed with your assessment of the effects of the ‘in duplum’ rule, obviously, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Just as she had agreed with you on the issue of the prescription rule. But the real bigger point that I want to make is that because you and her agreed, that sentiment then found itself in the remedial action, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Which we will find at 8.2.3 on the same page. Just further down, thank you. Thank you. Yeah. So the remedial action that you proposed and she accepted was that National Treasury together with the Reserve Bank should institute legal action against Absa in order to recover 16% interest accumulated over a period of five years amounting to R1.1 billion plus interest, further ensure that the interest is not more than the capital value and so on, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And obviously, this did not go down well with the National Treasury or in the Reserve Bank, correct?

Adv Tshiwalule: I don't know about what transpired after I had left, because this was part of the report that was issued in December. I don't even know how they've responded to that, whether they accepted this proposition, or this point in that report. That's all I can say, Chair. Because I was no longer there. I didn't even have sight to their responses to the provisional report.

Adv Mpofu: No, fair enough, but you are a South African. You know that they challenged the remedial action, which hence we ended up with the Constitutional Court litigation, correct?

Adv Tshiwalule: Yes, they challenged the final report…

Adv Mpofu: And I'm sorry, I'm sorry. Carry on, carry on.

Adv Tshiwalule: I wanted to indicate that they challenged the final report, which was finalised when I'd already left the Office of Public Protector. That's why I have my own reservation about commenting on that, because that was done after I'd left the Office.

Adv Mpofu: Yes, but I thought you agreed with Adv Mayosi that that challenge was specifically focused on the remedial action. That's why I'm taking you to the remedial action, not so much the report on the investigation itself.

Adv Tshiwalule: Yes, if you put it in the manner in which you have put it that I'm as South African I should obviously, probably know about what was happening. Yes. I'm aware that the parties that were not happy with the findings, they took the PP all the way to the ConCourt.

Adv Mpofu: It’s to be expected as we're saying, that's part of the EFF Nkandla report, which says that when you're a Public Protector, you are up against very powerful forces, and potentially they won't take your remedial action lying down, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Right now, and well, as I said, these are, these are quite powerful forces. Firstly, you’d already found maladministration against a former President, against a Minister. And now you are asking the National Treasury and Reserve Bank to effectively try and get the money and Absa to pay back the money, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Now, the other issue is that, if we just link this issue of the remedial action, again, to the mandate issues, our earlier discussion. You now know, either with the benefit of hindsight or because you have read the report just because you're a South African, but you know that part of the remedial action that was proposed was for Parliament to consider a motion about the mandate of the Reserve Bank, correct?

Adv Tshiwalule: Is that how it was put in the report that they should consider or it was a direct instruction to Parliament? Maybe you can clarify that for me so that I can answer it properly.

Adv Mpofu: Alright. Let me clarify. Okay. No, there's no such thing. That was part of the of the noise that was being made about it, but at least you and I as a lawyer, you know that an amendment to the Constitution can only be done by the National Assembly, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: That amendment would have to be tabled before the National Assembly, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And if you did not attain the necessary majority, it would never succeed, correct?

Adv Tshiwalule: Absolutely.

Adv Mpofu: So the mere fact that an amendment is tabled can never be. It would be ridiculous to suggest that if you tabled an amendment, therefore it means it's going to actually happen. Because that depends on the voting of the Members of Parliament, correct?

Adv Tshiwalule: You're quite correct. But I would want to understand whether, what was the reading of that remedial action? Because I think the reading may have been a problem and which is what I would comment as a South African that's how I viewed it. That perhaps there could have been a particular way of putting that in the final report, so that it does not come with a suggestion that says 'there is an instruction' from the Public Protector for Parliament to then do what she's asking them to do in that particular way.

Adv Mpofu: Let me explain it to you. No, thank you. I hear what you're saying. But I'm just saying as a matter of fact, there's nobody whether you are the Public Protector or me or you or even a Member of Parliament. You can table an amendment, like some of us would like to have an amendment on section 25 of the Constitution. But tabling that amendment does not mean that it's going to happen, correct?

Adv Tshiwalule: Yes, I agree with you.

Adv Mpofu: Yes. So the point I'm making – and I'm coming to your question – the point I'm making is that whatever the wording or non wording, that's the point that Chief Justice Mogoeng was trying to make, so whatever the wording, and we will come to it for your comfort. But the reality is that a constitutional amendment can only be done if a sufficient majority of the Members, two thirds to be exact, propose that amendment, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Now, but there's nothing that prevents the Public Protector, or anybody for that matter, or Justice Zondo or whoever, from suggesting that the Constitution should be changed one way or the other, either to bring back the death sentence or to change the voting system, and so on. You'd agree with that as a general statement, correct?

Adv Tshiwalule: Yes, I would agree with on that.

Adv Mpofu: Yeah. Okay. Now.

Adv Tshiwalule: Just to qualify that. A suggestion, obviously, would not be something you want to put in the remedial action that is going to bind people. I would imagine you do agree with me. You may put your suggestion probably in the body of the report, where you are discussing issues, you know, or you are analysing the evidence and everything. But you wouldn't put that as a direct instruction if you don't have you know, those powers. Or you're going to overreach in some of the things that you're doing. That's what I wanted to indicate there.

Adv Mpofu: Have you read section 182 of the Constitution.

Adv Tshiwalule: Yes, I have read it. If you can remind me of it, but I have read it before

Adv Mpofu: It's the one that deals with the powers of the, well you wrote about it in your draft report.

Adv Tshiwalule: The powers of the Public Protector.

Adv Mpofu: Yes, it's that one. And just to assist you….at 3222. Okay, fine, no let's start with this, 182(1). It's the one that talks about the powers of the Public Protector, okay.

Adv Tshiwalule: Yes.

Adv Mpofu: Yeah. It says her power is regulated by national legislation, which is the PP Act, to investigate any conduct in state affairs, in the public administration and in any sphere of government, alleged or suspected to be improper or to result in any impropriety or prejudice. You know that part?

Adv Tshiwalule: Yes, I do.

Adv Mpofu: And you know that any sphere of government means literally that, any sphere of government. It could be in the legislature, where they amend constitutions or it could be in the executive or it could be in the judiciary, subject to a qualification, but also it could be in the local government, provincial government, and so on. Correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And these are powers that have been defined by the Constitutional Court as very wide powers and by the SCA as almost limitless powers, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Right. Now, I'm saying that in the context of that, and linked to the powers in Section 182(1)(c), which is to take appropriate remedial action, you would agree that the remedial action must be linked to those wide powers, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: If you go to 3222 of the report, which is the version that you and Adv Madonsela had written. You locate this whole exercise exactly in section 182, correct? If you go to roman (i) and (ii). 3222. In roman (i), she as you say she had this thing of giving the reports names, correct?

Adv Tshiwalule: Yes, correct.

Adv Mpofu: And this one she called lifeboat or gift?

Adv Tshiwalule: Yes.

Adv Mpofu: And it says, therefore, lifeboat or gift is my report as the Public Protector issued in terms of section 182(1) of the Constitution and section 8(1) of the Act. Then roman (ii) said the report communicates my findings and appropriate remedial action I'm taking in terms of section 182(1)(c) of the Constitution, following an investigation, and so on, and so on. So you would agree that then this report was produced in the exercise of the extensive and almost limitless powers of the Public Protector, to investigate matters in any sphere of government and to issue appropriate remedial action, in respect thereof, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Now, against that background, I'm saying to you that even in remedial action, there would be nothing wrong in principle with the Public Protector putting...let's assume the Public Protector felt that a certain section of legislation or even of the Constitution was the cause for the sufferings of the people of South Africa in one way or the other. Then it would be incumbent upon her, in respect of those wide powers, to suggest or that those sections should be looked at. I'm putting it at a low level deliberately, so that we can agree and then I'll take it to another level. Do you agree with that?

Adv Tshiwalule: I disagree with that proposition. The remedial action should always be, you know, confined to the evidence that has been provided, and the complaint. So you can’t then go and recommend something, you know, that is completely out of what the complainant had asked you, without any evidence backing that up to say, somebody had mentioned that the problem that we have in this particular case, if I were to give an example. The reason these monies was not recovered was because of probably the manner in which the powers of the central bank have been crafted. That could have been probably the reason. That would obviously be a good reason to say, well, based on the evidence that I have before me, I think that the mandate of Reserve Bank needs to change. This was not a case about that. This was not a systemic investigation where you're saying there's a systemic problem, you know, that we need to address and you will then come up with a remedial action that is quite general, you know, in addressing the problem. There was a specific issue that needed to be dealt with. We ought to have confined ourselves to the specific issue. Obviously, taking into account what you've mentioned that the Mail & Guardian judgment was quite clear in terms of approaching the investigation with an open mind, but it didn't have to happen in as far as this one is concerned. That's my view on it.

Adv Mpofu: Yes, no, Mr, I mean Adv Tshiwalule. Believe me, I respect your view. But that's not what I'm interested in right now. I'm saying to you that all of us, as South Africans, can have all sorts of views as to what must happen. I think we have a right to that. I'm never going to deny you that right. I'm making a slightly different point. I'm saying to you, that, at least actually I think we are in agreement. You and I have agreed already that an investigation cannot be confined by the complaint. It can take its own…I gave you the example of the Gupta, something that you are very familiar with, of the remedial action that was in the State of Capture report, to what we have now, which is the Zondo report. I mean, the two are almost completely unrelated. You would agree?

Adv Tshiwalule: Yes, I do agree with you.

Adv Mpofu: Yes. So by its nature, an investigation cannot be confined to the complaint, as it was said in the Mail & Guardian case. It takes its own life, because as you might investigate you might be investigating me and then as investigating me, you find that my learned junior was also involved. Then you investigate him, then you find that 25 000 other people were involved and so on. That's the nature of investigation as opposed to adjudication which is confined by pleadings. That's just basic theory of investigations, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Yes. Now, I'm saying against that. You therefore, agree with me that this idea which you are repeating here that you must be confined to the complaint is actually incorrect, if we look at the jurisprudence and the theory of investigations, correct?

Adv Tshiwalule: Yes, I'm saying both. Yes, just to contextualise the issue. Both the complaint and the evidence that you're receiving during the course of the investigation will direct the investigation until the end. That's how we've been conducting the investigation. It can take a particular direction based on the evidence that you're receiving. You might find that the witnesses that were interviewed may point you to a different direction of where you could find further evidence that will lead to the resolution of the complaint.

Adv Mpofu: Absolutely. No, then we are going somewhere. We, at least you and I, agree that you are not confined by the four corners of the complaint. Agreed?

Adv Tshiwalule: Correct.

Adv Mpofu: Yes. Okay. Now, let's take it to the next level of what you're saying, which I also agree with. Now, the idea that…I mean, one of the things that's cited by the Independent Panel, for example, is the fact that Adv Hoffman says that was not his complaint. But that's completely irrelevant, because who cares what his complaint was if the investigation led to all sorts of other doors opening? That's in the nature of investigations. We agree on that. Then we go to the next level, correct?

Adv Tshiwalule: Yes. But also, I don't know what transpired, Adv Mpofu. So that at least I don't comment on things that happened after I had left the Office. I do not know what evidence was brought to the PP, which obviously made her to come up with all the remedial actions that obviously were not in the provisional report. I don't know what kind of evidence was there that moved her. I don't want to really comment much on that part because it might obviously create a problem for me.

Adv Mpofu: No. Believe me, I'm not going to do that to you, because it would be unfair. All I'm saying and again, I think you and I are on the same page. If I contextualise what you're saying, you are therefore saying, assuming that there was a complaint and assuming that there was further evidence at the disposal of the Public Protector, then she would have been entitled to go beyond the complaint, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: I'm saying to you now, as a matter of fact I'm putting it to you that actually between the time – and you correctly say that you can't be held accountable for the period when you're not there – so from 31 December, which is when you left, and the release of the report, which was in June, there was indeed accumulation of new evidence which pointed in the direction of the remedial action. If I'm right with that, then you would agree that it would be competent for the Public Protector to expand remedial action, correct?

Adv Tshiwalule: Correct. That can happen.

Adv Mpofu: Yes, thank you very much. Now, and I'm saying to you, not only was there that evidence, which was accumulated, and evidence has been given here by Mr Kekana that, for example, they travelled to Cape Town to meet some economist. I know it was outside of your time and all sorts of things that happened in your absence. But I'm saying to you that the evidence before this commission, is that, indeed, there was the accumulation of that evidence, and it is what led the Public Protector to act as she did. You can't dispute that because you were not there, correct?

Adv Tshiwalule: Correct. I can't dispute that.

Adv Mpofu: All you can tell this Committee is that if indeed, there was evidence, and of course, you know that there must have been evidence because you did not complete that exercise, or you may or may not know that it was carried out. Or if it was completed later by Adv Neels van der Merwe. I don't know if you know that, but you know him at least, correct?

Adv Tshiwalule: Yeah, I know, Adv Neels van der Merwe. As to whether he completed the report, I'm not aware of that.

Adv Mpofu: Yes, then I will. Well, he did. I'm talking about the exercise. When I say the exercise, I mean the research that the PP asked you to do about other jurisdictions and their reserve bank, correct? I'm sorry, I shouldn't ask it like that because you've already said you didn't know that Adv van der Merwe proceeded with that exercise. I'm wondering if the evidence leaders can help me because I thought I had the reference. But there is the document which we flighted before, during Mr Kekana’s evidence, which is called the Public Protector’s observations on constitutional principles, and so on.

Adv Bawa: Bundle H, item three, page three.

Adv Mpofu: Sorry, can you give me that again, advocate?

Adv Bawa: Its bundle H, item 3, page 3.

Adv Mpofu: Thank you. Can you go there please? Yes, can you see that, advocate?

Adv Tshiwalule: Yes, I can see.

Adv Mpofu: It's common cause. Okay, can you just go to the introduction? Yes, okay. I'll just read literally a few sentences. I don't want to bore you with the contents of this. The purpose of this is just for you to identify that this was a similar or related exercise to the one that you had been doing. It starts as far back as 2008 the Parliamentary Task Team on Oversight and Accountability in regard of oversight and accountability noted the Reserve Bank Act of 1989 is not sufficiently aligned to the constitutional requirements in sections 223 to 225 of the Constitution for the mechanism on oversight in, inter alia, section 42 of the Constitution. Carry on to 1.2. The Public Protector’s experience and observation on the current governance arrangements relating to the Reserve Bank confirm that it is necessary to reflect on the constitutional principles applicable to a fully-fledged central bank within the economic context of our country and needs of our democratic society. Go to 2.3. The structure of shareholding of the bank has however not been amended since its inception. The South African Reserve Bank and seven other central banks, Belgium, Greece, Italy, whatever, have shareholders other than government in their respective countries. South African Reserve Bank lists its shares on the JSE. Okay, do you agree broadly that this is along the lines of the exercise that you had started, correct?

Adv Tshiwalule: Yes, I agree.

Adv Mpofu: Yes, thank you. No, that's all I wanted to say. I'm saying to you, it's common cause then that after your departure, that exercise was the document I've just read you is a product of the work of Adv Neels van der Merwe. Then that's why I was putting it to you hypothetically before. Saying if there was such gathering of evidence, and I know you were not there, but now I'm putting it more emphatically. I'm saying it would seem therefore that there was the gathering of such evidence, correct?

Adv Tshiwalule: I’m not sure if you are referring to…you want me to comment on firstly the responses that were received from the parties, because I would want to get an understanding. My vision of how it would have happened is, if amongst the people that were implicated, for example, that the prelim report had gone to, any of those parties had responded in the manner that it then changes the whole trajectory of the investigation, this exercise would have been necessary. I'm not seeing that link right now. You're saying to me, following the response from the people implicated, be it the Presidency and everybody, the Public Protector saw it fit that this process needed to be done to ensure that there is research done in relation to other central banks around the world. I'm not seeing that connection. But I might be wrong. You might be able to point me to that, where probably I could agree with you that this was also necessary. In the end.

Adv Mpofu: No, I'm not talking about necessity. I'm talking about, now you're moving us backwards. You and I have travelled far from that. You and I have demonstrated that in your report, long before Adv Mkhwebane came to the picture, the connection between the mandate issues and the failure to recover the money was made, correct?

Adv Tshiwalule: Yes, yes, there was that.

Adv Mpofu: Yes. I don't want to go back to that, because I'm going to run out of time. I don't want to go back. We've covered that ground. I'm saying assume, so don't ask me about the connection now. Because I thought you and I have done that. But I'm saying now we're on another plane. We're saying, provided there was further evidence on top of the complaint, which was done in the six month period that you were not there; then the remedial action would have been, might have been justified. That's what you said, correct?

Adv Tshiwalule: Yes. That’s what I said.

Adv Mpofu: So the only thing I'm doing, advocate, now is not is not to talk about whether it was necessary or unnecessary. That's for others to determine. It is simply for you to accept that there was some further gathering of evidence in your absence. I've said to you this is evidence that's already before this commission, so it's not disputable. I'm saying that the further work that was done on the topic that you had been asked to research, by Adv van der Merwe, which I've just shown you. You accept that as a fact?

Adv Tshiwalule: Yes, I accept that even though I was not there. I do accept that.

Adv Mpofu: Yes, good. Will you also be prepared to accept that there was other work which was done in conjunction with one economic expert from Cape Town? Again, you are not involved with that. But that you can accept that there's evidence before this commission from Mr Kekana that such consultations with that expert were made. Do you accept that?

Adv Tshiwalule: Yes, I read that on his affidavit.

Adv Mpofu: Correct and it's also in the judgment, parts of the judgments, which I read out before cross-examining you. I'm saying therefore, it would therefore seem that the condition which you have put for the, which would have justified such remedial action, namely, that further work would have had to be done, accepting that there was a connection that was made earlier. Then that work was done. Then it completes the picture. It means then all the three ingredients that you have prescribed were met: (a) there was the complaint; (b) there was the connection that was made between the work that you're doing or rather the non recoverability of the debt and the mandate issues and (c) there was further evidence which was gathered. Whatever that evidence is you don't know. For now, let's say I also don't know. But those three steps were therefore met, correct?

Adv Tshiwalule: Yes, they were met. I would agree with that proposition, even though I don't know what evidence was used to, to justify that.

Adv Mpofu: Fair enough. No, no, I don't expect you to know. I mean that would be for somebody else who was there. It would be unfair to, to now go further with you and say that, was that evidence good or bad and so on. Because you were not there, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: No, then, I think we've made a lot of progress. I think then we have established, firstly, that the ambit of the investigation long before Adv Mkhwebane came, was already dealing with the mandate issues and the constitutional issues that you have raised. And now we've also established that the remedial action, assuming those three steps were in place, was competent. Now the last issue I want to talk to you about is just to clean up a few issues. You said you were not involved in the interview with Mr Masetlha. Am I right?

Adv Tshiwalule: Correct.

Adv Mpofu: Can you explain the circumstances under which you were not involved in that? Was that because it happened before your time? Or was there any other reason?

Adv Tshiwalule: It happened before my time.

Adv Mpofu: Alright. But you can confirm that there was interaction between the SSA and Adv Madonsela?

Adv Tshiwalule: Yes, I can confirm that she interviewed Billy Masetlha.

Adv Mpofu: Yes. That was logical because they were after all the signatories to the CIEX contract, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Now, the other just small bits and pieces of information. There's a whole complaint often repeated by Adv Hoffman, that the section 7(9) provisional report, that he was not served with it as the complainant, you remember that?

Adv Tshiwalule: Yeah, I remember.

Adv Mpofu: Yes. You've made it very, very clear that that complaint is unjustified because, after all, section 7(9) specifically enjoins the Public Protector to give those reports or ‘audi alteram partem’ rights to implicated parties, correct?

Adv Tshiwalule: Correct. Yeah, all I can say there, advocate, Chair, is that the only thing that we needed to do, which I would accept if we didn't do that. I can't remember. I may have called him, I may not have called him at the time or the PA may have called him just to update him on the progress. Just to say to him, we've now released the prelim report or section 7(9) letter to the parties. We've given them 14 days, after the 14 days has lapsed, we’ll then provide him with another update in terms of the progress that the PP is making in as far as that investigation is concerned. But the report was obviously not going to be submitted to him at all.

Adv Mpofu: Yes, and you did that as a matter of courtesy, not because of any legal obligation, correct?

Adv Tshiwalule: Correct.

Chairperson: Apology, Adv Mpofu. You said, you did or you don’t remember if you did that?

Adv Tshiwalule: I'm saying that would have been done as a form of courtesy, if that did happen. Because between 21 and 31 December he did make contact with the Office. That's why I was notified that he indicated that there is a report out there; he is worried that he was never given an opportunity. That was the issue.

Chairperson: Thank you. Proceed Adv Mpofu.

Adv Mpofu: Thank you, Chair. Yes, thanks for clarifying that. Therefore, as I say, and I think you've covered this in your statement. You don't find Adv Hoffman's plaintiff complaint in that regard to be justified in law, correct?

Adv Tshiwalule: No, correct. You're quite correct.

Adv Mpofu: Yes, because, of course, and that's why you extended the courtesy. He is a complainant so he has some kind of interest, but that does not elevate him to an implicated party, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Then you have also said that the section 7(9) provisional reports were served by you on, among others, the Presidency, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And all the other implicated parties, National Treasury?

Adv Tshiwalule: Correct.

Adv Mpofu: Reserve Bank and Absa?

Adv Tshiwalule: Correct.

Adv Mpofu. Let me just check where in your statement you refer to that. Think it's paragraph 32 of your statement. 3148, Chairperson. So those are the implicated parties that you can remember, the Presidency, Governor of the Reserve Bank, the Minister of Finance and Absa Bank, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: I have something else but I'll rather forget that something else than the next point. I'll go to the next point. You agree that the statement of Mr Kekana is incorrect insofar as it suggests that the provisional report was not quality controlled, correct?

Adv Tshiwalule: Yes, yes, I agree. I actually wanted the specifics, because I saw that paragraph 15 of his affidavit was not specific in terms of what he was referring to. It's difficult for me to then be able to comment on that, without that being put forward to me.

Adv Mpofu: Yes, no, but let's just deal with it very systematically, very quickly. I'll ask you a few questions on it. The provisional report that Adv Madonsela left behind had been worked on by among other people, you, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: That report had gone many times to Think Tank for example, correct?

Adv Tshiwalule: Nope, it had not gone to Think Tank. It was compiled in the Private Office and there was an interaction between me and the Public Protector. Then even when the current Public Protector joined the Office, that interaction continued in that regard.

Adv Mpofu: Okay, fine. Fair enough. So are you telling us that in the six years life of this report, it had never served before Think Tank?

Adv Tshiwalule: Yes. The draft, maybe just to explain, Chair. The draft report was only prepared in 2016. There was no draft report before that. All that was happening prior to that was just the process of investigation. It could not have gone to Think Tank because it was only in 2016 that we had a draft.

Adv Mpofu: Yes. Okay, we'll come back to this. Before lunch, you gave what were the reasons for this report having taken six years? The investigation, sorry.

Adv Tshiwalule: Can you please repeat that?

Adv Mpofu: I'm sorry, I used the wrong word. I said report. I wanted to say, what was the reason? You said you had asked for reasons and you were given some reasons why this investigation had lasted for so many years, about five to six years. Just if you can tell the Committee some of the key reasons?

Adv Tshiwalule: Okay. What I was informed at the time was that first there was an issue with the unit that was supposed to do the investigation. Some sort of hesitance and a view that says perhaps it should not be investigated. Largely based on the arguments that were being raised by Reserve Bank and I think, Absa and I think, Treasury also raised some of the issues that why are we touching this issue? They relate to whether we should go back to issues that happened more than two years ago. That was the first issue. Also whether we are touching a matter that happened prior to the establishment of the Office of the Public Projector. Those were some of the reasons. So there were a number of discussions in the Office about that. That then, I was informed, delayed the whole process of properly commencing with the investigation. That was the issue, but that whole issue was then resolved somewhere around 2013. You'd see that there were a number of interviews that were done during that particular time, as well. Then later on as well. So those were the reasons that I can recall, Chair.

Adv Mpofu: Yes, thank you. Okay, that's fine. That would explain that, let's call it ideological debate between those who said this should be done and those who said that should not be done, between 2011 and 2013. What was the reason for the delay between 2013 and 2016?

Adv Tshiwalule: At that time, I think the former PP had an intern who was working in our office.

Adv Mpofu. Sorry your volume. I think your volume has done what mine sometimes does. Something has just happened. I can't hear you.

Chairperson: It's a problem on your side. Can you hear me, Adv Mpofu?

Adv Tshiwalule: Yes, but you're also low, Chair. Maybe it's on my side. Let me try this side.

Chairperson: Yes, it's on your side. We can hear him. Let's fix it.

Adv Mpofu: Okay, I can hear you better now, Chair. You can continue, Adv Tshiwalule.

Adv Tshiwalule: Okay. Can you hear me, Adv Mpofu?

Adv Mpofu: Yes, that's better. That’s much better.

Adv Tshiwalule: Thank you. What I was told then was that between I think around 2013 the PP had an intern who was working with her. That particular intern assisted her to a certain extent and then he left the Office. There were also issues that were raised, which are similar to the ones that I've already highlighted. Relating to a unit within the Office, which is GGI, which had its own reservation about the whole investigation. That delayed the process until the PP then decided herself that this was going to be done in her Private Office, you know, to fast track the investigation. So those were some of the reasons that were advanced at that particular time.

Adv Mpofu: Okay, so effectively, this, let's say three year or four year delay was simply because the PP was not getting the necessary support from the Office of the Public Protector to do this investigation, correct?

Adv Tshiwalule: Yes, I would put it in that particular way. She didn't have that much support in terms of that because of the views that were obviously been canvassed by some of the colleagues, former colleagues in the Office in relation to this investigation?

Adv Mpofu: Yes. Well, would you agree that she should have, instead of making a complainant wait for more than five years, she should have just put her foot down and made sure that the investigation is done? Or, you know, get people who are willing to do the work of the Public Protector?

Adv Tshiwalule: Yes, I would agree with that. But obviously, one of the things that I can also remember, there were there were so many investigations that were taking place, you know, during that particular period. Obviously, I'm not saying this was partly as a result of that, but there was an issue of trying to make sure that there is a balance in terms of the attention that has been given to different investigations or complaints that were lodged with the Office. So that was also a reason. There were so many complaints that were coming through especially, that would require more time for the PP to finalise during that period. You’d remember the PRASA matter as well. I think it came somewhere around that particular period. So there were so many issues that were taking place, which obviously led to the delay in the finalisation of this particular investigation as well. But the complainant was always kept abreast of the developments in that regard.

Adv Mpofu: Yes, but anyway, we know now that the current Public Protector managed to get the final report out within seven months of her coming into office, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Thank you, alright. Now putting aside all those internal issues then. The Public Protector, Madonsela, do I understand you correctly that one of the reasons why you and her basically almost like a one man show during this investigation was exactly as a result of those frustrations? So she wanted to locate it in her office and monitor the progress herself, correct?

Adv Tshiwalule: Yes, to fast track the investigation. That was the idea.

Adv Mpofu: Yes. Now and this then goes to the issue I wanted to raise with you, which is the quality assurance aspect of the report would then have been located in the same place, in other words in you and her dealing with this report, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And to that extent, there was continuous quality assurance by you and Adv Madonsela, correct?

Adv Tshiwalule: Yes. Correct.

Adv Mpofu: And therefore, Mr Kekana’s idea that the provisional report had never been quality assured prior to it being leaked is false, correct?

Adv Tshiwalule: I think let me just try and explain that. You’ll tell me if that's how you understand it. I think Mr Kekana’s understanding was the procedure that was established in the Office where reports would go through a process where they are submitted to Think Tank. Think Tank, which was I would call it the highest decision making body in as far as the reports are concerned before the Public Protector signed them. He may have been referring to that process, which I was also part of the Think Tank as well. But with regard to this particular report, it never went to that particular structure, because in any case, it was already at the level of the PP. The only person who wanted to consider that was the Public Protector. And at no point did the current or the former PP say this report must then go back and follow that particular procedure.

Adv Mpofu: Fair enough. Yes. No, I understand. So exactly. So that's why Mr Kekana’s version cannot be true. Because from what you're telling us is that this particular report was quality assured by you and the Public Protector. It may not have followed the conventional quality assurance route, admittedly, but it was quality assured, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Yeah. When you were doing the handover to Mr Kekana, did you explain the let's call it unique, unconventional route that this particular investigation had taken because of the problems of dissent or non-cooperation? That this report had taken a unique route, so to speak. Had you explained that to him?

Adv Tshiwalule: Nope. No, I didn't.

Adv Mpofu: Okay. But he knew that it came from the Public Protector’s report and that you had worked on it at least, or rather, you and the Public Protector had worked on it, correct?

Adv Tshiwalule: Yes, it was common cause in the Public Protector’s Office that myself and the PP were working on that.

Adv Mpofu: Yes, Mr Kekana. Well, this is the point. I think, Mr Kekana, as I indicated earlier, his mission in life was to portray the Public Protector in a particular light instead of just giving us factual information. Unlike a witness like you, but he also says that this was also 'in my experience a significant departure from standard procedure'. You've already explained why this particular report took a different route, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And then he says, 'when the provisional report was leaked I noticed that it contained numerous errors, and was missing vital information'. Do you know what he was talking about here?

Adv Tshiwalule: No, I don't know what he was talking about. That’s the part that I said, if he was specific on the issues that he referring there perhaps one would be able to either agree with him or disagree with him, but in the manner in which this affidavit is crafted, it's difficult to disagree or agree with his version.

Adv Mpofu: Yes. In any event, he and others, did you know Mr Matlawe?

Adv Tshiwalule: Yes, I worked with Adv Matlawe.

Adv Mpofu: Yes. In any event, I'm sure you know now, even if you just know it from the grapevine that after the Think Tank, or even before that, before the Think Tank was even abolished, the current Public Protector had established a quality assurance unit in her office. In other words, it was not just someone like you. It was now a unit. You know that?

Adv Tshiwalule: I only recall an email I received, which I think, Chair, is part of my evidence where there was, I think it may have been coming from either the PP or Chief of Staff. Which was saying that the PP was establishing a Task Team to fast track the reports that were left by the former PP. That's all I remember. I don't have any information about what transpired thereafter. I had left. The last Think Tank I attended was in November 2016.

Adv Mpofu: No fair enough. No, then it means the weekly Task Team and the quality assurance task team that was established must have happened after your departure in December. Alright, okay. Anyway, just to round off that point, Mr Kekana, himself, testified that there were these weekly meetings and some of the people who worked or participated in them included Mr Kekana himself whose background was in quality assurance, correct?

Adv Tshiwalule: Yes,

Adv Mpofu: He came from the quality assurance unit himself, correct?

Adv Tshiwalule: Yes.

Adv Mpofu: And Mr Matlawe was obviously the head of quality assurance. So even beyond your time, there must have been continuous quality assurance by the Public Protector and the team around her. We can accept that as a fact, correct?

Adv Tshiwalule: I would imagine so.

Adv Mpofu: Yes, thank you. But then very quickly, let's go through, I won't have time to take you blow by blow. But effectively, you have confirmed that the changes, what you call the material differences, we've already accounted for the differences that had to do with the mandate issue, correct?

Adv Tshiwalule: Yes, we've spoken about it.

Adv Mpofu: Now there were other changes that you identified. I just want…I'll ask you simple questions where you say this was my change or this was put by me and so on. Let's go to 3316. I think there was another misunderstanding between you and Ms Mayosi. When you were referring to paragraph five of the executive summary, what were you talking about? Because she took you to 3327. Let me tell you, there are only two options. So you just tell us which one it is. If you go to, sorry, let's move away from that. If you go to 3222. Yeah, you see the heading there, executive summary? Can you see it, advocate?

Adv Tshiwalule: Yes, I can see it.

Adv Mpofu: Now there is section five of that, which is on the next page, 3223. So roman (v). You see that?

Adv Tshiwalule: Yes.

Adv Mpofu: Yeah, that's what I would call section five of the executive summary. But Adv Mayosi took you to 3327. Actually no, it was 3233, yes. Which section five were you talking about? Was it this or the other one?

Adv Tshiwalule: The first one is the one in the executive summary.

Adv Mpofu: Yes, okay. So she took you to the wrong place. Okay, fine. That's what you're referring to when you were saying this was an addition. One of the differences, correct?

Adv Tshiwalule: Yes, those were not changes that were made by me. Yeah.

Adv Mpofu: Yes. No, I’m just clarifying here. Yeah, no, because I think she just took you to the wrong place. Okay. Alright. Then if we go to 3316. What did I say, 3316? Yeah. At roman (xii). Okay. You identified that as another of the developments that happened in the six months when you are not there, correct?

Adv Tshiwalule: Yes, this information was not inserted by me on this part of the report.

Adv Mpofu: Yes, yes. It must have been inserted by, it was yes, I know. The one about the primary function of the Reserve Bank is to protect the value of the currency and so on. It relates to the debate that you and I had earlier, correct?

Adv Tshiwalule: Yes, it came after I'd given the draft to the current Public Protector. These were some of the things that I noticed when I got the document back.

Adv Mpofu: Yes, that’s what I was saying in relation to her; but I called it her gloss on the issues of mandate that you and I had discussed, correct?

Adv Tshiwalule: Yes.

Adv Mpofu: Then there was 3318. That is, I think it's the one marked (xx). You said that was also an edit.

Adv Tshiwalule: Yes.

Adv Mpofu: Yes. Were you privy to the interview with President Mbeki, between Adv Madonsela and President Mbeki? Were you present or did you see the transcript or did you listen to the recording?

Adv Tshiwalule: I was present in that meeting.

Adv Mpofu: Okay. And okay, I don't have a lot of time now. We will introduce it at a later stage maybe via another witness. But you'd agree that President Mbeki’s attitude was that firstly – as I've already correctly said, rather you've correctly accepted – that this reluctance to collect the money might have had something to do with protecting the economy on the one hand. He also was saying that this is a matter that should be discussed with Treasury, in a nutshell. I’m giving you broad strokes. Am I right?

Adv Tshiwalule: Yes, you are correct.

Adv Mpofu: Yes. I'm sorry to do this. I'm just, I'm not, I'm going to ask for a little bit more time from the Chairperson but he usually is not very generous. I'm going to, let me jump. I'll jump to something else before we come back to this. Chair, will give me about 10, 15 minutes?

Chairperson: I actually want you to wrap up at four so that we can have tea and then come back with Members so I will have to negotiate your 10 minutes with the Members.

Adv Mpofu: You know maybe to be economical

Chairperson: I will grant you the 10, that's fine.

Adv Mpofu: No, let's do this, Chair, to make it more economical. We can take the break now, then I'll use the 10-15 minutes to wrap up when I come back and then you can…I think it's better that way. It will make it…even myself so I can structure the few questions that I want to put.

Chairperson: Should I not give you the 15 minutes now? You are flowing nicely. Let me not break it.

Adv Mpofu: Thank you, Chair. I'll take that as a compliment.

Chairperson: It is a compliment.

Adv Mpofu: Thank you, Chairperson. Alright. Okay fine, let's do it now then and then kill it. Let's then continue, Adv Tshiwalule. Let's just continue with what I was doing. I'll come back to the other issue. I was going to jump to something else. Now that I've got the 10-15 minutes. 3329. No, it's fine. You've already answered that. You said those are the changes to do with the interest and ‘in duplum’ rule. Those were your changes, correct?

Adv Tshiwalule: Yes, we've dealt with this one, correct.

Adv Mpofu: And then 3374. Okay, no, don't do there; it's the same thing; it's the 'in duplum rule’. Then 3317. Yes (xix). Right now, I just want. Okay. Before we, or without going into the text itself, just clarify for the Committee just this thing. Okay. Firstly, we accept that the view of those people like you, who felt that this money should be collected, was ultimately it was related to what I've earlier called Apartheid corruption, and it should have been recovered for the benefit of the poor people of South Africa, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Right. Then in support of that, if you go to the remedial action, which was proposed in your version of the provisional report. Which you will find at 3215. In fact, let me do this just so that I cover two points in one. If you go to 8.1, this is now the remedial action section where things must be done. Again, it's located in the wide powers of the Public Protector contained in section 182(1)(c), which you and I have gone through, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And then this is what is being proposed for the National Treasury and Reserve Bank. This is now by you and Adv Madonsela. Again, long before Adv Mkhwebane came into the picture. You said to ensure that the systems are put in place to prevent this anomaly in providing loans and lifeboat to banks in the future. I'm sorry, Mr Tshiwalule, I have to try and do this in a more economical way – by referring you to the findings. Sorry, about this. I want to refer you to the main findings which were quite, shall we say, heavy handed, if one was on the receiving end thereof. Your first finding of substance was that the Public Protector had jurisdiction? We've gone through that, correct?

Adv Tshiwalule: Yes, we've gone through that.

Adv Mpofu: And then the next one was whether the South African Government and Reserve Bank improperly failed to implement projects per the report, that is the CIEX report, dealing with the alleged stolen state monies after commissioning and duly paying for the same. You found that the South African Government and the Reserve Bank had improperly failed to do so, correct?

Adv Tshiwalule: Yes, which paragraph are you dealing with now?

Adv Mpofu: I’m at 3205, sorry. I just wanted to go to the findings before we go to the remedial action, because the remedial action obviously talks to the findings, correct?

Adv Tshiwalule: Yes.

Adv Mpofu: And I'll just read out 6.3 on 3205. I'll just read bits and pieces just to give a picture to someone who has not read the report in full. Someone at home who might not understand what this whole CIEX thing is about here. Then on the next page 3206. So as I say, I'm doing this just to break this down because we know about CIEX report, you and I because we have read it and so on. But ultimately, this is about the public and it's important for them and the Members to understand what was really at issue here. Which was the recovery of money stolen, allegedly stolen, through the apartheid system and corruptly not recovered. That was the gist of Adv Hoffman’s complaint, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Now This is where the Public Protector and you say, I disagree with the former President Mbeki’s contention that his office, the President's, was under no obligation to process the CIEX report, and that matters of finances fall within the ambit of National Treasury. In other words, you are disagreeing with the denial of obligation, but also what one might call passing the can or kicking the can to National Treasury. You are of the view that this was…the whole government was responsible for this, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And she says, 'it is my considered view that government had responsibility to process the CIEX report by virtue of having been the one that commissioned the investigation and spent public funds'. Government had an obligation to ensure that the report is processed by formal structures within government and take a decision to either accept or reject the findings. This goes to your complaint or your criticism that the matter was not even taken to Cabinet, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And then 6.4.1. You say having concluded about former President Mbeki and former Minister of Finance Manuel, the matter to be adjudicated upon is whether or not the Government and South African Reserve Bank acted in violation of the Constitution, South African Reserve Bank Act, PFMA and the Executive Ethics Code. We already know what you found about that. Then if you can just fast forward., that’s 3209. Adv Madonsela then says, I was persuaded that the matter deserves to be investigated with finality as the uncertainty it kept casting on the integrity of the Government, the Reserve Bank and financial services sector regulation was not good for the country. You remember that part?

Adv Tshiwalule: Yes, I do remember that part.

Adv Mpofu: And you also found that, whether the public was prejudiced by the failure, sorry I'm now at 3212. Regarding whether the South African Government and the Reserve Bank improperly failed to recover an amount of R3.2 owed to it as a result of a pseudo lifeboat given to Bankorp, later Absa, between 1998. She says, 'the allegation that the South African Government improperly failed to recover the amount of R3.2 billion is partially substantiated'. Remember that?

Adv Tshiwalule: Yes, I remember that.

Adv Mpofu: Next one, 3213. 7.15. Regarding whether the South African public was prejudiced by the failure of the South African Government to process the CIEX report. The allegation that the South African public was prejudiced by the conduct of the government of the Republic of South Africa and Reserve Bank is substantiated. That was your finding, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And the last one was 3214, 7.1.6. Regarding whether the South African public was prejudiced, what it would take to ensure justice. So that's the build up to the remedial action, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: So then, let's now go to 3215, where I was with you. Now against the background of all those negative findings against the Government, the President, the Ministers, the failure to collect this money, the remedial action must be understood against that context, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And so, we'll start then, where we were, where I deviated from you. To ensure that the systems are put in place to prevent this anomaly in providing loans / lifeboats to banks in the future, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And then to ensure by means of introduction of internal policies and regulation that similar circumstances are avoided in the future.

Adv Tshiwalule: Correct.

Adv Mpofu: I want to pause on that one to say, obviously, then that was the view of the former Public Protector. The view of the current Public Protector was that to ensure that this doesn't happen in the future, among other things, would be this issue of the mandate, correct?

Adv Tshiwalule: You mean the current Public Protector?

Adv Mpofu: Yes, the current one.

Adv Tshiwalule: I wouldn't want to comment on that part. Because the final report when it was done, finalised, I was not there. I would only want to reserve my comment insofar as that is concerned.

Adv Mpofu: Okay. Fair enough. Okay. I put it to you that that it was the same motivation for this not to happen in the future. Anyway, then it says, South African Reserve Bank should consider reviewing its lending policies in order to avoid similar situations in the future. Again, the accent on this remedial action was in taking measures to prevent this ever happening again, correct?

Adv Tshiwalule: Yes, correct.

Adv Mpofu: And I put it to you, I know you were not there, that it was in that same spirit that the current Public Protector then looked into these issues about what is happening in other countries. Whether the Reserve Bank should not be looking at the economic good of the people rather than narrowly on the so-called protection of the Rand. I mean, that raises a whole lot of ideological issues. But you are aware that in the country, there is a debate about the mandate of the Reserve Bank, and whether that talks to the economic needs of the country, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: And you are aware that one of the sharp debates in the country around that issue is this question of the private ownership of the shares of the Bank, correct?

Adv Tshiwalule: Correct.

Adv Mpofu: Then moving forward, this was what the Public Protector, you and the Public Protector Madonsela, then proposed as remedial action in respect of the President. One, to ensure that former Minister Trevor Manuel and former DG of SSA, Mr Billy Masetlha, and other ministers involved in at the time are reprimanded for their role in the processing of the CIEX report, and failure by the National Treasury to recover the public funds. That was your proposal and Adv Madonsela, correct?

Adv Tshiwalule: Yes, that was in our document.

Adv Mpofu: In other words, you wanted Minister Manuel and others to be disciplined by the President, correct?

Adv Tshiwalule: Correct. You could put it in that particular way. But obviously, I must indicate that this was obviously still an internal document, which was obviously subject to a number of changes that were going to be made at a later stage – wWhich the former PP at the time when she left the Office, she had not yet obviously attended to all the other issues.

Adv Mpofu: Yes. But she had read this, and she had actually corrected it and gave you handwritten reports. She didn't delete the fact that the Minister Manuel should be disciplined, correct?

Adv Tshiwalule: Yes, but that doesn't mean that it was going to be a final position on the report.

Adv Mpofu: It does not mean that it was not going to be a final position either, correct?

Adv Tshiwalule: Either way, of course.

Adv Mpofu: And then the next one. She said, 'due to the lapse of time, in order to put this matter to rest, Absa Bank should consider giving back to the people of South Africa'. In other words, to pay back the money, hashtag, by providing housing units, clinics and schools to poor communities identified by government and contribute to higher education student funding. That was you and Public Protector Madonsela’s proposal as to how the people of South Africa might be compensated for this alleged theft of their money, correct?

Adv Tshiwalule: Correct. That was our thinking at the time.

Adv Mpofu: Yes. And again, the last one. Well, not the last one. The next one. You wanted the President to consider instituting a commission of inquiry to investigate alleged apartheid corruption, as outlined in the CIEX report and take necessary measures? That's what you and Adv Madonsela wanted to happen, correct?

Adv Tshiwalule: Yes, correct. Can I just also indicate this fact, Chair, for the sake of completeness?

Adv Mpofu: Yes.

Adv Tshiwalule: If you go through the CIEX report, and I'm talking about the real CIEX report that was done by Michael Oatley. It makes mention of a number of institutions that benefited during the apartheid era between, I think, around '84-'85 until somewhere in 1992, if I'm not mistaken. At that particular time, me and Adv Madonsela had a discussion about the implication of not looking at those institutions would be in our investigation. Even though obviously, the complainant wanted us to look at specific issues, but we knew that some people might argue that, well, we decided not to look at other institutions that were named in the CIEX report, but rather focus specifically on Absa Bank. So that was the issue at the time. That's why this kind of a corrective remedial action was in our mind at the time, and we thought that it would then address that whole part. So that was the issue there.

Adv Mpofu: Yes, and the last one you gave was again touching on constitutional issues. Chair, if I could just round off this point?

Chairperson: Okay.

Adv Mpofu: No, let me round it off, Chair. The last one says to verify if any outstanding monies are due from institutions cited in the CIEX report and, if necessary, take appropriate action to recover; taking into account the duties of government to redress the injustices of the past as outlined in the preamble of the Constitution; taking into account no jurisdiction to investigate issues that happened before the birth of this Office. In summary, there because we don't have time, you were saying that the government should take into account the constitutional imperatives of economic transformation to ensure that the apartheid-related monies that could be recovered, should be recovered for the benefit of the people, correct?

Adv Tshiwalule: Correct, specifically, those that were cited in the CIEX report.

Adv Mpofu: In the CIEX report, yeah. And finally, because we don't have time. Can you confirm that, because of the, shall we call it, lethargy or the slow pace or the failure to complete certain high profile reports you had towards the end of Adv Madonsela’s time, various organisation were protesting and toy-toying outside. Because they felt that their reports should have been finalised in time, correct?

Adv Tshiwalule: Yes, you're quite correct. We had, I would say, well-funded organisations because I don't know what explanation one would provide for an organisation that can camp at our offices a whole week. There'll be someone who provides KFC to them the whole day. I'm just putting that so at least it's clear. Where the well-funded organisation that was there was being provided with resources to camp at our offices until the last day of Adv Madonsela.

Adv Mpofu: Yes, KFC aside, those people were there to protest for their reports, which had been unduly delayed in their view, correct?

Adv Tshiwalule: Sponsored by someone, I guess. Yeah. You are quite correct in that.

Adv Mpofu: Thank you very much, advocate. Thank you, Chairperson. There are no further questions.

Chairperson: Correctly, I agree with you. That was lethargy.

Adv Mpofu: It was more than liturgy and it's our turn now to go and have KFC, if you give us a break.

Chairperson: Thank you, on that note, we'll take KFC for 10 minutes.


Questions by Committee members

Chairperson: Thank you. Welcome back. I'm now going to invite Members to interact with Adv Tshiwalule. We’ll start with Mananiso.

Ms J Mananiso (ANC): Thank you, Chairperson. Let me firstly welcome Adv Livhuwani and as well greet Adv Mpofu and the team, and greet the evidence leader and the team, and you as well, and the Committee members, Chair. Chair, firstly, I want to check if I'm audible?

Chairperson: Come again?

Ms Mananiso: Chairperson, I want to check if I'm audible.

Chairperson: Yes, we want you to go ahead. Otherwise, you're eating into your minutes.

Ms Mananiso: Okay. No, thank you, Chair. I'll just do ASAP. Adv Livhuwani, my questions are relating to what you have narrated on your affidavit, paragraph 47. I just want to check with you that, according to you, leaking of reports in any way constituted a criminal offence? Yes or no?

Adv Tshiwalule: Thanks, Chairperson. Yes, I agree with you. If the information has been leaked in the manner in which you're suggesting, that might constitute a criminal offence.

Ms Mananiso: Okay, no, thank you. You have answered me. Then my second question is, in your experience, was it the first time that criminal charges were opened by the Office of the PP pursuant to the leakages of the reports?

Adv Tshiwalule: Yes, it was for the first time. Having worked with Adv Madonsela, there has never been a situation where a report would be leaked to the media and she would go to an extent of saying I'm going to lay a charge or open a complaint with police. It was my first experience to hear that the current PP did that.

Ms Mananiso: Okay, thank you, advocate. Then, Chairperson, my last question is with regards to how did you interpret the events of the SAPS visit during what transpired as you were relating in your affidavit? And I want to check with you in terms of could you express your feeling with regards to that situation where you felt intimidated or harassed? Thank you, Chairperson.

Adv Tshiwalule: Thanks, Chairperson. Yes, I did feel at first when they came to my new employer's workplace, I felt that maybe they were just making an inquiry. But as the time progresses, and when they visited my place, that's when I felt harassed. I felt that somewhere somehow perhaps maybe somebody had said to them, I'm the person who had leaked the information. That's how I felt. As a result of that, I kept on asking myself whether that could have came from the side of the PP, that I'm the one who leaked the report. Obviously, that didn't go far because around about I think April / May there was silence up until today in terms of the police investigation and whether they were able to find anything as far as that is concerned. So yes, indeed, there was a feeling of threat on my part during that period. It also created a problem, obviously, where I was working in the sense that now I have to explain why police had to visit me at my workplace and ask me a range of questions. When they arrived there, they explained first to the boss what they were there for and then came to me to interrogate me on the issues. Indeed there were those, you know, feelings of being threatened. Yeah, I'll leave it there, Chair.

Chairperson: Thank you, I now recognise Hon Herron.

Mr B Herron (GOOD): Thank you, Chairperson and Adv Tshiwalule. Can I start with understanding the position that you and Adv Madonsela had around this Absa loan? You both agreed that there was an amount that was due. But you regarded the amount as recoverable and she regarded it as unrecoverable. Am I correct?

Adv Tshiwalule: Correct.

Mr Herron: And did you both agree on the amount that was due?

Adv Tshiwalule: Yes, we both agreed on the amount that was due.

Mr Herron: Is it correct then that the amount would have been the interest only and you accepted the submissions that R1.5 billion capital had been paid?

Adv Tshiwalule: Yes. We were quite clear on that issue, and the information only came, arose somewhere around September after we interviewed Dr Chris Stals. That's when we were quite certain that the capital or the loan had been repaid. We got information as far as that is concerned. We were quite clear on that one. The only issue was the interest.

Mr Herron: Thank you. So that does take me to the sequence, because you spoke about the former Reserve Bank Governor Chris Stals giving lots of evidence to prove. I think you said that he wanted to provide a lot of evidence which would prove that the loan had been paid. When you came to the conclusion or the finding that there was amount that was still due, had you considered all of this evidence that Mr Stals had provided?

Adv Tshiwalule: Yes.

Mr Herron: So this was after, after what you called, I think, fairly substantial amount of evidence?

Adv Tshiwalule: Correct.

Mr Herron: And finally, just on the complaint was initiated by Adv Hoffman. Was the complaint limited to the failure to implement the CIEX report with regards to the Bankorp-Absa loan?

Adv Tshiwalule: Correct.

Mr Herron: But the CIEX report, as you've just said at the end of your cross-examination, implicated or identified, I think you said 84 potential beneficiaries of Apartheid government corruption, correct?

Adv Tshiwalule: Correct.

Mr Herron: It was only the one issue that was raised in the complaint, is that correct?

Adv Tshiwalule: Yes.

Mr Herron: So the other 84 / 83 in the findings and the remedial action, where the commission of enquiry was recommended, would have been because the CIEX report identified a number of other beneficiaries.

Adv Tshiwalule: Correct.

Mr Herron: And that would have been an expansion of the investigation?

Adv Tshiwalule: Correct.

Mr Herron: Okay, thank you.

Chairperson: Thank you, Hon Herron. I now recognise Hon Mileham.

Mr Mileham: Thank you, Chairperson. Good afternoon, Adv Tshiwalule. Let me start with this: are you aware of any other high profile reports that did not go through the Think Tank quality assurance process?

Adv Tshiwalule: On the top of my mind now, high profile, I can't remember right now. But there were a number of those that went through. Just I can't remember specifically which one, you know. I had mentioned the Malanda report. I don't know whether one could call that a high profile report or what. It was signed by the PP. There were other obviously section 7(9) that would come through without them going through the Think Tank. Simply because at that time also Think Tank would sit periodically, you know. It can be that after a while it was quite a costly kind of an exercise because you have to bring everybody from all the nine provinces, the senior provincial reps and you need to make sure you pay for them. So that's why it used to happen, you know, I'd say quarterly, after every three months you’d have that. But there were, I can’t really recall.

Mr Mileham: The high profile ones would generally go through the Think Tank?

Adv Tshiwalule: Yes, they would go through the Think Tank.

Mr Mileham: Okay, at what stage was a report normally considered by the Think Tank?

Adv Tshiwalule: So the province or the unit once it's done with the investigation, that report gets to be forwarded to the quality assurance committee or unit which is then responsible on behalf of the PP. After the PP has confirmed the date for the Think Tank to convene that particular meeting. It would have done the legal research and everything. When it goes to the Think Tank meeting it then advises the Think Tank committee on the work it has already done and table the report at the Think Tank to see if it is happy with the report or not. If Think Tank is not happy with the report, together with the Public Protector, the report will then be referred back to the investigator or the head of that particular unit to then close-off whatever the gaps that may have been identified by Think Tank.

Mr Mileham: Then the Think Tank would, if they approved it, the output would be a provisional report at that point?

Adv Tshiwalule: Correct.

Mr Mileham: Okay. How do you quality assure your own work? Isn't part of the process to have an external eye review it for legal and factual inconsistencies?

Adv Tshiwalule: Yeah, it would be the case. In many areas it would be the case. But obviously, if you're working with it already in the Private Office, where you work on something and she said, 'look, I've okayed this, I'm happy with it; please correct whatever that you need to correct'. You take that as the person who is going to sign the report being happy about the work that has been done. But I do agree with you that those kinds of structures in terms of quality assuring and editing of the report, they are quite necessary in the sense that there might be mistakes that you might not be able to identify in your own document.

Mr Mileham: In fact ConCourt did find that there were legal and factual errors in the CIEX report that was issued by the Public Protector.

Adv Tshiwalule: I wouldn't want to comment much on that, because I'd already left the Office. Whether that final report, I would presume it went to the Think Tank, the final report. Because I worked on the prelim report. The final report, if it didn't go there, I would agree with your version that perhaps if it had gone that particular route, somebody would have picked up some of the errors that you are mentioning, that the ConCourt managed to identify.

Mr Mileham. But even the provisional report. I mean, you were there when the provisional report was issued. The provisional report, which normally would be an output of the Think Tank, it still had some of those errors in. Okay, let me move on. In paragraph six of your affidavit, you talk about the register for documents in the Public Protector’s Office. Do you know if that system is still in place?

Adv Tshiwalule: I’m not sure at the moment but when I left, that was the procedure followed.

Mr Mileham: In paragraph 17, you talk about two boxes of evidence that you delivered to the PP’s office. Were those captured in the register?

Adv Tshiwalule: They were already in the Private Office so I would imagine they were not captured in the register. Because I was working in the Private Office. It's information that was already in that particular area.

Mr Mileham: So was it already in the register, in that case?

Adv Tshiwalule: Yes, it had already been on the register kept by the secretary. Whatever documents that you would receive, they'd be kept by the secretary in the Private Office of the Public Protector.

Mr Mileham: Now, in that same paragraph, you talk about the small box, and you say that that box contained the transcribed records of interviews. Do you know what became of those records?

Adv Tshiwalule: If I can just… I’m trying to remember some of the information, you know, that was there. We had transcribed almost everything. But you know, the recordings of all the meetings that we had with the people that we had interviewed. They were part of the information that I provided to the Public Protector at the time before I left the Office. Obviously, I don't know what then happened after that. But I left it there.

Mr Mileham: It was there when you left?

Adv Tshiwalule: Yes.

Mr Mileham: Okay. Were any of those records interviews with State Security Agency personnel?

Adv Tshiwalule: I can't really recall whether there was a transcribed one with Billy Masetlha, because I remember the former PP had already interviewed him. But all I can recall is that in one of the recorders that were in the Private Office, we used to have, I think, two if not three recorders. That particular information was there. When I started with the investigation I did have to verify some of the things. But at the time, when we were compiling the report, I did raise it with the PP that I couldn't find some of these recordings. Simply because the recorders would be borrowed by other units whenever they're having meetings with different government departments that they would be investigating.

Mr Mileham: So you weren't there when Adv Mkhwebane had meetings with Minister Mahlobo and Arthur Fraser and Moodley and people like that?

Adv Tshiwalule: I wasn't there.

Mr Mileham: You weren't there. Okay. Were you present at any discussions with economists regarding the role of the South African Reserve Bank?

Adv Tshiwalule: No, I wasn’t.

Mr Mileham: Okay. Did any of the interviews you personally observed, raise the issue of the role of the South African Reserve Bank?

Adv Tshiwalule: No, the focus of the investigation and all the interviews I attended, were mainly on why the CIEX report was not implemented. That was the main issue that we were pursuing at that particular time. There's nothing that came up that suggested that perhaps we should look at or revise the mandate of the Reserve Bank in the whole process. That's how I can remember.

Mr Mileham: Do you know who removed what Adv Mpofu called the three TMs: President Mbeki, Minister Manuel and Governor, at the time, Mboweni in the draft report? They were in the draft report in the findings. But in the provisional report, they weren't. Do you know who removed them?

Adv Tshiwalule: I think I'd already indicated, Chair, that those were removed after I received the final version of the report. I don't know if you can refer to the paragraph. But I did indicate that when the report came back to me, there were a number of changes that were made. This is part of the paragraph that was no longer there.

Mr Mileham: And that could have been when it came back from Adv Mkhwebane?

Adv Tshiwalule: Correct.

Mr Mileham: Okay. Now, we've heard in other testimony that Adv Mkhwebane did not want remedial action or findings against politicians. Was that the case here?

Adv Tshiwalule: I don't think so. I don't think so. When it was removed, it didn't come to my mind that it may have been the reason and I didn't even ask her why that was removed as well. I wouldn't want to make any conclusive statement about that.

Mr Mileham: Because it's quite a big jump from going to making a finding that these three individuals need to be admonished or have remedial action taken against them, to taking it out completely. Would you agree?

Adv Tshiwalule: It is. I agree.

Mr Mileham: You noted earlier that the complainant is always kept abreast of progress. But that didn't really happen in this case, did it?

Adv Tshiwalule: It happened to a certain extent. I would say when I started with the investigation, I communicated with Adv Paul Hoffman on a number of occasions, you know, telephone calling, because I needed to understand certain things. It may have happened that it may not have been happening regularly. I know he was in contact with the former Public Protector. And because he would tell me that he had reached out and he wanted to understand what's happening. Similarly, he was in contact with the current PP. I think after the former PP left and also late in December before I left the Office, there were certain, you know, engagements that were taking place in that regard.

Mr Mileham: Okay, because you said that he wasn't provided with a copy of the provisional report, that you only sent it to the implicated persons. Is it unusual for the complainant not to be provided with a copy of a provisional report?

Adv Tshiwalule: It's usual. I've already explained that. There is always a view and this view has been carried by the Office for a while. It's a view that is obviously supported by section 7(9) of the Public Protector Act, which specifically speaks to the issue of implicated parties been afforded an opportunity to comment on the findings or the evidence that you have and the possible remedial actions that the Office is likely to come up with in the event that you don't comment and move the Public Protector to a particular view. So this was the position. All that the complainant had to get was an update on their complaint of where we are and the discussion about when we are likely to release the report. Also if there are any issues that we feel we need to check with the complainant, we could check with the complainant. But at this particular stage there was none that we needed to check with Adv Paul Hoffman.

Mr Mileham: Section 7(9) doesn't preclude the complainant from getting a copy of the provisional report does it? All it says is that the implicated people must get a copy.

Adv Tshiwalule: Yes, yes, it does.

Mr Mileham: Or be afforded an opportunity. That's what it actually says.

Adv Tshiwalule: Yeah, it doesn't. Also it doesn't mean that you have to give it to the complainant or you shouldn't give the complainant.

Mr Mileham: Okay. Thank you very much, advocate.

Adv Tshiwalule: Thank you very much.

Chairperson: Thank you, Hon Mileham. I now recognise Hon Mgweba.

Ms T Mgweba (ANC): Thank you very much, Chair. Good afternoon Hon Members, Adv Mkhwebane, the team and Adv Tshiwalule. Mr Tshiwalule, having you read the final version of the report. Do you think the Public Protector broadened the scope of the investigation unlawfully or without justification? Because I've heard you saying that there were changes made to the report of the previous Public Protector.

Adv Tshiwalule: Yes. Thanks, Chairperson. I wouldn't want to really venture into that part because as I've indicated, Chair, I left the Office on 31 December 2016 when the prelim was out. What happened after that and the evidence that was received by the Public Protector, which made her to make changes in some of the proposed remedial action? I wouldn't want to comment much on that, unless I'm provided with evidence. But obviously, there was a part that I was not happy with, which is my own opinion, I guess, because the final decision rests with the PP, was just the issue of, you know, changing the mandate of Reserve Bank and all those things that were in the final report. I had an interest in it. I had to look at it and I saw that there were several changes from the provisional report. What necessitated that, obviously that can only be responded to by the Public Protector, not myself.

Ms Mgweba: Thank you very much, Mr Tshiwalule. Then the second question which is the last one, Chair. Mr Tshiwalule, you have indicated that the BLF, which is the Black Land First, had keen interest in the matter and the Public Protector informed you that she had been approached by them. Do you think the Public Protector may have been influenced by the external people, as it relates to the final and material changes that were effected to the report? Thank you very much.

Adv Tshiwalule: I wouldn't know in as far as the final report is concerned whether there was any view that came from BLF that found expression in the report. I do partially agree with her that at the time, there were organisations which were obviously not happy that some of the investigations that were taking place in the Office, at that particular time, were not yet finalised. They wanted to know why. For example, the State Capture one was prioritised, as opposed to the other one. So those were valid issues that they were raising at that particular time, but there were reasons why certain investigation will take longer than others. On the part about their view finding expression or whether I have a view on that, I wouldn't want to comment on that because I'd already left the Office during that particular period. I don't even know whether she met with them after the preliminary investigation was issued. I would reserve my comment on that, Chair.

Ms Mgweba: Thank you.

Chairperson: Thank you. Hon Gondwe.

Dr M Gondwe (DA): In paragraph five of your affidavit, you say that not long after Adv Mkhwebane assumed office, you were the only staff member remaining in the Private Office of the Public Protector, as other persons were redeployed to other units in the organisation. Please confirm how many people were in the Private Office prior to Adv Mkhwebane assuming office and how many were redeployed to other units after she assumed office? How soon after her assumption of office were these persons redeployed to other units?

Adv Tshiwalule: Okay. I consider it to be an exodus of, you know, there was this thing that happened, Chair, where there was a briefing that was supposed to happen, I think it did happen. It was quite a brief one on the 14th. On the last day of the former PP where we were called. I remember we were working on reports and we were called to say we must come in because the new PP has arrived to meet with the Public Protector. She did the introduction to the current PP to say these are the people who are working here. During that period, I think I was working with Janine Hicks who was the Special Advisor to the former PP. She was brought in to speed up the process of quality assurance reports as well. There was also Belinda Moses who was a senior manager in the Office and there was also Thembinkosi Dlamini, if my memory serves me well. He was the Chief of Staff at that particular time. He was working with us. The three officials within a few weeks, I think few days or so, if my memory serves me well, they were no longer there some of those officials. I remember with Ms Moses, I think she probably left the Office early November. And others were then told that they can’t work in the Private Office. There were obviously going to be new people. There were three, the PP had two, I think. The former PP had two PAs and a secretary. It didn't take long for them to also be redeployed within the Office. I think those were redeployed – because there was nothing that the PP could do. They were permanent; they still were going to be within the organisation, whether she liked it or not. They were permanently employed in the Office. I may have left others, but that was the team. I was then left as the only one. But I did understand why I would be left there, because I was the only person who was assisting with investigation in that particular space during that time. It was important that I also do the handover of the report.

Dr Gondwe: Thank you. You stated in the course of your evidence that a number of organisations including Black Land First showed a keen interest in the CIEX matter. At some stage they staged, you know, they were camped outside the Office of the Public Protector. Please confirm if Adv Madonsela had a meeting with any of these organisations that were camped outside the office. We heard earlier from Mr Kekana that Adv Mkhwebane set up a meeting with Black Land First, and they had wanted to be added as a complainant to the CIEX matter. I just need you to confirm whether Adv Madonsela had had a similar meeting with any of the organisations?

Adv Tshiwalule: If my memory serves me well, I don't think she had any meeting. What happened is that myself and the spokesperson of the PP actually met with them. I'd raised the issue with the PP that Mr Mngxitama and his team, they've been coming to the office and they wanted to meet with her. They wanted to find out the progress of this investigation. I remember I think I met with them in the boardroom together with other officials, but the Public Protector, or the former Public Protector, was not part of that meeting. In the weeks that followed, they then started to camp at our gate. That's why I mentioned the KFC issue, Chair. They were there for a particular period of time and there was also another engagement that I had with them outside, together with the Public Protector spokesperson at the time. We met with them outside and we advised them that the PP is working on different investigations and her idea was to release some of these investigations, including the CIEX one before she leaves the Office.

Dr Gondwe: Thank you. You stated in paragraph 46 of your affidavit that senior investigators made inquiries with you in relation to whom you had sent the provisional report. You told them that you had sent the report to SARB, Absa, the President and the Minister of Finance, as the implicated parties for purposes of the section 7(9) notices. What of the SSA? Why did you not send them a copy of the provisional report?

Adv Tshiwalule: These are the ones that I can remember now. It might be that there was something that was sent to them, if they were implicated. When I was formulating the affidavit I had to rely on things I could remember, which I'm quite certain that they can be confirmed.

Dr Gondwe: Okay. You told this Committee earlier that you felt threatened by the visit from the Hawks and the subsequent attempted search. Did you take the issue up with Adv Mkhwebane or her office? Did you want to find out why you were considered a suspect in the leak and the like?

Adv Tshiwalule: No, I didn't.

Dr Gondwe: Why?

Adv Tshiwalule: I'd already left the Office. A complaint had been laid with police. All I had to do during that particular period was to assist the investigation. Obviously, the only time I felt threatened was when people are now visiting my home and they're not explaining who sent them there to do what. Then that's why I said to the police that came there, if you don't have the search warrant, you're not going to search my house. It ended there. I think they did understand that they had to go through another process to for them to do what they were supposed to do. I didn't reach out to the PP’s Office. She had opened the case. The issue was in the media space. I always understand the criminal investigation to be that when somebody has laid a criminal case, anyone who may have worked on a particular project that is under investigation is considered a suspect until such time there is prima facie evidence that can be proven that the person was really involved in whatever wrongdoing.

Dr Gondwe: Regarding the prescription and how it was dealt with in the CIEX investigation. You go into great detail in paragraph 35 and 36 of your affidavit and you detail that Adv Madonsela was clear that prescription had set in relation to any monetary claim. As such the remedial action could not include any recovery of funds. However, you said you were not convinced. Your hope was that the implicated parties would not raise the issue of prescription themselves. So am I correct in saying that you agreed with Adv Madonsela’s view in so far as she indicated that prescription had set in and so there couldn't be any monetary claim. However, you said you felt strongly that a possible monetary claim could be included in the report. Hence your preparing two reports. Why did you have this strong view on this because she was correct in law on prescription having set in?

Adv Tshiwalule: The issue there was prescription is a defence in law. You raise it when someone is claiming something from you. It must be raised by you. You must tell me that, look, this thing that you're talking about is prescribed. Then I can say oh, yeah, no, I've looked at it. She raised it at that particular time. I felt that because we're doing a provisional report here; there's nothing wrong in testing the waters by writing the report in the manner I'm suggesting. Let it be that Absa, Reserve Bank, Minister of Finance raise it and say, but well, why are you touching this issue because there's really nothing here, this thing is prescribed. That was my view at that particular time when I was engaging with her. That view I carried even when Adv Mkhwebane joined the Office.

Dr Gondwe: When you eventually discuss this prescription issue with Adv Mkhwebane. Just get into the details. What exactly did you say to her? And what was her response to what you said?

Adv Tshiwalule: Okay, the discussion around this was it happened when I was handing over the draft report, where I did indicate that before Adv Madonsela left, she had made several comments and changes on the document. Some of them I have inserted because they were on a handwritten document. I've inserted them and I'm handing over. There was this issue of prescription that I have this particular view, which obviously myself and Adv Mkhwebane then shared the same view. The issue from our side, she felt that the debt had not prescribed. Yes, so we will move in that particular way. But I did explain to her where I was coming from in the sense that it had to be a defence raised by whomever we are saying is owing that particular money.

Chairperson: Thank you, Hon Gondwe. Hon Tseke.

Ms G Tseke (ANC): Thank you very much, Chair, and good afternoon, Adv Tshiwalule.

Adv Tshiwalule: Good afternoon, ma'am.

Ms Tseke: How are you?

Adv Tshiwalule: I'm doing very well. How are you?

Ms Tseke: Good, good. In paragraph 41 of your affidavit, you indicated that your understanding was that the PP had not gone through all the information and was not conversant with the report on the CIEX. Do you believe or get a sense that she approached the matter with a preconceived view or predetermined outcome without familiarising herself with the facts of the matter?

Adv Tshiwalule: Okay, so, when I handed over the report to her in October, obviously she had the report for a while and I asked her I think it was in November how far she was and everything. I had that view at that particular time where I said to myself, perhaps she has not been able to go through all the evidence and the information that I provided to her. I don't think there was any motive. At the time when I was still in the Office, I didn't see that there was any motive around the whole issue. The only thing that I mentioned here, which I was clear, was just the issue about researching how other central banks work. That's where I was quite concerned. Where are we going with this? But I've clarified that pattern already.

Ms Tseke: Okay, Adv Tshiwalule. My second question, in your opinion, was it necessary for the PP to have acquired the services of the economist to finalise that report?

Adv Tshiwalule: Okay, are you asking me now to venture on things that happened after I'd left the Office? I wanted not to air opinions here because opinions sometimes create a problem for us as legal people. I would have wanted just to leave it there and rely on things that I can back up from my side where I participated. If I was there, I would have advised her otherwise, that there is no need for economists to come in here because the issue had nothing to do with the economy. That would be my comment, but I wouldn't want to make further comment on the one I've made right now on that.

Ms Tseke: Okay. Okay. Thank you very much but I get your point. My last question is that after reading the final report, because we had keen interest on it, do you think that PP had acted improperly by ordering the amendment of the Constitution?

Adv Tshiwalule: Yes, I do. I do agree. I think there was, I don't know if I should call it an overreach. I don't know. That's why I raised an issue, Chair, where I was asking, what informed that? Where is that coming from? You know, and I had a version from Adv Mpofu that says, well, the evidence problem there. I don't know about that. I don't think that was even appropriate to put that kind of remedial action in there. Perhaps there could have been a better way of putting it because it was more of a directive as opposed to a proposal. So that's my view as far as that is concerned.

Chairperson: Hon Tseke, continue. Hon Tseke, you’re muted. Okay, she's probably frozen. We’ll check, last time she also froze during the middle of her question. We will proceed to the next Member. But before I do that, I see the hand of Adv Mpofu.

Adv Mpofu: Chairperson, I'm just doing this for the record, because I know what your view is but I have to put it. It is not allowed, Chairperson, for a Member to ask questions that say, do you think this and that was unlawful or whatever. Or that answers the question, the very question before the Committee. It's not allowed. Irrelevant in law doesn't mean what it means in normal language, and maybe we'll have an opportunity to explain. So that is irrelevant. Because a witness, I can put 10 000 people there. One will say yes, I think it's unlawful and another thinks it's lawful. That is completely irrelevant, because that's just an opinion of a witness. It might be good for sensationalism and creating a negative atmosphere, but you should not allow it, Chairperson. Please, and maybe you can get advice from the evidence leaders as to that issue about a tribunal cannot accept the views of a witness about the very issue that is before it. Because then what's the point? We can call another 100 people who say they think it's lawful; on the other side another 100 can say they think it's unlawful. It's completely irrelevant, but as I say, I've tried to explain this before. I just want to put it on the record so that I'm not accused of not having raised it, thank you.

Chairperson: Thank you, Adv Mpofu. Thank you, for putting it on record. If it's a point of order, it's not sustained, because we’re dealing with relevance here. And everything else that that Member had raised is not irrelevant. I'm not even going to ask the evidence leader for any advice. I'm appropriately ready to do this. So your point of intervention is not sustained. I proceed to the next Member. Thank you very much.

Adv Mpofu: Thank you very much, Chairperson.

Chairperson: Hon Maneli.

Mr B Maneli (ANC): Thank you, Chair. Greetings to Adv Tshiwalule. Maybe if I were to follow up a question to get the understanding of paragraph 35. The part about making a choice between the two. I think it's an important part of the framework Mr Ebrahim spoke to. Would you say the Public Protector raised prescription out of knowledge that it exists? Your suggestion about leaving it to the defence would mean you were just looking at taking chances – not because you are not aware that it exists? I just wanted to check that, Chair, to confirm if I understood this part. Thank you.

Adv Tshiwalule: Thanks, Chair. That would be a current proposition.

Mr Maneli: Just to take it forward then. In the case of the current Public Protector, when you were to place this before her, I want to check again, and I'm testing discretion again, that you presented both options to the Public Protector? Or you only presented what would have been your view? Just to understand how she would have arrived at her own determination. Thanks.

Adv Tshiwalule: Thanks, Chair. I raised both views with her. She chose the view that obviously I was also in favour of, which is what I've mentioned that I was also in favour of the recovery of the money. That view found expression after I'd already informed her about the changes that I had made in the draft that I was submitting to her. That's how the whole discussion unfolded putting myself in. She knew about both versions. There was no version that I just said, okay, because I'm pushing this, this is the only version that I'm going to give to her and she would not know about the other version.

Mr Maneli: Before you cut me, let me just do quickly two further questions. I had a number of questions to look at, but I'm trying to cut them. I wanted to come to.

Chairperson: You’re still within your time.

Mr Maneli: I still want to come back again to the SSA question, but differently. I wanted to chat from a point of the handover of reports, which you are saying were both electronic and in the two boxes. Did you have also the SSA responses or material that relates to how they've interacted with the investigation? Of course, I do take the point you raised in the course of your presentation and responding to questions that you may have not been present in the interaction with the DG Masetlha, but I'm saying from the point of material available for handover. Were these also part of the documents that were handed over for consideration?

Adv Tshiwalule: Correct, Chair.

Mr Maneli: If that's the case, Chair, I just want to also complete this point. Will you then say if you do have both the electronic and the physical documents available, that from worked in the Public Protector’s Office, that the cases could be easily traced then on that score, meaning that you do have some case management system in place? As I say, both electronic as well as documents that get through the register. I just want to establish that, Chair.

Adv Tshiwalule: We had quite a strong system in terms of managing documents in the Office of the Public Protector. If you lose the hardcopy, you will be able to get the version, you know, the other version that would have been kept by the secretary after that process. Or you would also have it in your own laptop as well or on the recording as well that you would have used for that particular meeting.

Mr Maneli: Just in valuing evidence that is brought by people, I want to get to this point about SSA, but starting from this one. Under normal circumstances, as part of considering the value of the evidence put before you, did those that are implicated suggest what remedial action needs to be taken on the matter?

Adv Tshiwalule: Chair, when the section 7(9) or the provisional report is issued, in line with section 7(9), where you are now giving the implicated parties an opportunity to comment. Those that are implicated will say a whole range of issues, you know, from the evidence you have to the remedial action that you are likely going to propose. They could tell you that if you recommend what is put in the prelim or provisional report, this would have this kind of impact, for example. Perhaps you could put it in this particular way. There will be those kinds of proposals. There's nothing that prevents them from doing that. But ultimately the final decision rests with the Public Protector as to what then goes to the final version of that particular report.

Mr Maneli: But in a case, for example, one witness has led evidence here and made the allegation where the actual version of what needed to get into the remedial action or the report itself would come from the implicated party. Would you take that as interference or just that maybe the Office didn't have capacity to put that and the it's more of working together with those to really put out a proper report?

Adv Tshiwalule: No, it wouldn't be seen as interference in the work of the Office. As I've indicated, Chair, whoever the Public Protector would be investigating would have a right to suggest whatever things that they want to suggest. In an effort, obviously, to resolve the complaint that has been brought. So there will be many suggestions. Those suggestions will be taken into consideration in the final report. That could be dismissed or the PP might agree. That's why you would have areas in the report where the PP will say these issues are common cause as they were raised by the complainant, and also raised by the person who is being investigated, so that will be something that would happen during the course of investigation.

Mr Maneli: Is your version therefore on this matter when you say not interference, you mean that the PP is not compelled to put that but actually uses his or her discretion to take that forward?

Adv Tshiwalule: Yes, it is important for the PP to evaluate the evidence put before her and obviously be able to make an informed decision and come up with appropriate remedial action that would address the complaint that has been brought forward. It is not something that happened where only what has been proposed by one party will find expression – unless there is a valid reason for that to find expression, Chair.

Chairperson: Thank you. I now recognise Hon Xola Nqola.

Mr X Nqola (ANC) Thank you very much, Chair. Good afternoon, Adv Tshiwalule. In your affidavit, you make emphasis on two reports, which is the CIEX report and the Vrede Dairy Farm report, which formed the basis of the findings of the Independent Panel. The first question will be, we'll just do a checklist. I don't have long questions. The first question would be, were you part of the CIEX report investigation?

Adv Tshiwalule: Yes, I was part of that.

Mr Nqola: Okay. Was the mandate for the amendment of the Constitution part of the investigation you conducted?

Adv Tshiwalule: No, it wasn't.

Mr Nqola: Mr Kekana came here, he’s a former employee. He has strong views that the entire context that speaks about amendments and the mandate – all those things was completely irrelevant. What is your view on that?

Adv Tshiwalule: Yeah, the mandate was not an issue that was before the Public Protector in the complaint that came to the Office of the Public Protector at that particular time. The issue was mainly the implementation of the CIEX report. That was the main issue that we were confronted with at the time when I was still in the Office.

Mr Nqola: Okay. Let's pass quickly on whether it was part of the investigation or not. Does it in your view, fall within the jurisdiction and the powers of the Office of the Public Protector?

Adv Tshiwalule: You mean to investigate the mandate?

Mr Nqola: Both the mandate and the constitutional amendment?

Adv Tshiwalule: Not at all. Not at all.

Mr Nqola: Okay. Suppose it was not the Constitution that was proposed to be amended, let's say it was just national legislation that regulates and governs the mandate of the Reserve Bank. Would it be appropriate for Public Protector South Africa to bring forward those kinds of propositions?

Adv Tshiwalule: Yeah, I think in the form of a proposal, that could be done. If you conduct an investigation and you note the reason there are complaints that members of the public are raising in as far as a particular issue is concerned. You can then come up with something that will then be brought to the attention of the Speaker. For example, to say, look, there are these issues that we've identified in a particular investigation, which we think if an amendment or some form of a review can be done to ensure these issues are addressed. Those could be brought, you can also raise that with several Ministers see how best they can be dealt with in the form of a recommendation, in that particular regard.

Mr Nqola: You made utterances when you were having cross-examination with Adv Mpofu about the difference between a comment and a binding action when you made an example about what Judge Zondo may have said during the Zondo Commission. Do I understand you correctly that you say the matter of the Reserve Bank mandate and the constitutional alignment should not have been part of the remedial action in the CIEX report?

Adv Tshiwalule: Yeah, let me put it this way, Chair. As I've indicated, I was not party to the things that happened after I've left on 31 December. It would be difficult for me to make or formulate any view in as far as that is concerned, because I don't know the kind of evidence that it confronted or that was before the Public Protector at the time when she decided that there is a reason to have some form of amendment in that regard. But obviously at the time when the complaint arose, there was no suggestion whatsoever, even from the side of the complainant, that there is a need to review the mandate of the central bank or Reserve Bank in the manner in which it was suggested by the Public Protector in her final report.

Mr Nqola: Okay, two quick last things. Mr Kekana accuses the Public Protector of having instructed them not to include politicians in the report on the Vrede Dairy Farm. If you were part of the investigations, the first phase of investigations in that report, was there any indication that points to any kind of wrongdoing by any politician, without mentioning anything.

Adv Tshiwalule: I got to know about the Vrede investigation. In fact the former PP had raised with us in the Private Office that there is an investigation that has been taking quite long in the Free State province. It came at Think Tank as I've indicated. Adv Mkhwebane was not there at that particular time. It came at Think Tank in there were areas that the former PP was not happy with. She then asked that the report be referred back to the province to go and close-off those gaps that were there. That's all I can say in as far as that issue is concerned. I don't know what happened after Adv Mkhwebane joined the Office as far as that particular investigation is concerned, and I would want to leave it there, Chair.

Mr Nqola: Okay. Last issue. The Reserve Bank is accusing the Public Protector South Africa of having ignored and breached section 7(9) of the Public Protector Act, after having requested that it be furnished with a preliminary or provisional report before its final publication. The Office of the Public Protector failed to adhere to that request. Do you have any knowledge about such?

Adv Tshiwalule: You're referring to the correspondences that came through from Reserve Bank even before the former PP left the Office?

Mr Nqola: Yes.

Adv Tshiwalule: Okay. Yeah, there were those correspondences obviously. It had to do with the delays in the investigation. But there was always an undertaking that as soon as the investigation is completed, that provisional report or section 7(9) will then be submitted to all the implicated parties. We maintained that I think until December when the Reserve Bank wrote to us again through their internal counsel. They were inquiring again about that and we did stress or committed that once the investigation is completed, we will ensure that the report is submitted to all the implicated parties.

Chairperson: Thank you, Hon Nqola. I now check Adv Bawa and Adv Mayosi in terms of directive 6.16 and 6.17. Do you have anything to say?

Adv Mayosi: We don't have any further questions, Chair. Thank you.

Chairperson: Thank you very much. Adv Tshiwalule, any last comments you want to make? We have reached almost the end of your interaction.

Adv Tshiwalule: Yeah. I just want to thank the Committee. I thank everyone who has been here I think, obviously, I expected that it was not going to be an easy engagement. It wasn't an easy engagement, I can tell you. It hard to be sitting in the seat, but I really appreciate. All I was here to do was to assist the Committee to arrive at an appropriate decision based on the information I've provided. I really appreciate you listening to me and all the questions that came through from everyone that participated. Thank you, Chair.

Chairperson: On behalf of this Section 194 Enquiry, we want to thank you for availing yourself before today, and today, and for the contributions you have made. Hopefully, they will assist us in the conclusions that we must make as this Committee. You are, therefore, now formally excused. Thank you very much.

Adv Tshiwalule: Thank you so much, Chairperson.

Chairperson: Thank you. With that colleagues, and everybody else, the meeting is adjourned. Thank you.

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