PP Inquiry day 20: Gumbi Tyelela

Committee on Section 194 Enquiry

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

Video (Part 1)

Video (Part 2)

Motion initiating the Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from the Independent Panel furnished to the NA

Rules of the NA governing removal

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

The Committee for Section 194 Impeachment Enquiry 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 Mr Gumbi Tyelela, Acting Head: Corporate Services in the Office of the Public Protector. He joined in April 2016 as Senior Manager: Human Resources. Evidence was led about the senior staff that experienced labour-related disputes with Public Protector South Africa (PPSA) and he was cross-examined on this by the Public Protector's legal team. Finally, Mr Tyelela was questioned by Committee members.

Before cross-examination, Adv Dali Mpofu of the Public Protector's legal team indicated to the Committee that it did not accept the decision by the Committee to refuse its request to summons President Ramaphosa to appear before the Committee as a witness. The Public Protector’s legal team would take whatever legal steps might be necessary to secure the presence of President Ramaphosa as a necessary witness.

Committee members asked Mr Tyelela if there was a culture of fear at the Office of the Public Protector due to staff being scared of being dismissed or receiving an audi alteram partem letter or disciplinary process? Members noted that in Mr Tyelela’s affidavit that between 2017 to 2020 there had been a lot of movement in the PPSA labour force and asked in his prior human resources experience, had this kind of exodus ever happened. They asked if the irregular instructions by the PP had been replied to in writing; if the lack of security clearance amongst staff had been dealt with in a uniform manner; and about the increased reliance on the SSA in a Chapter 9 Institution.

Meeting report

Chairperson: Welcome all Hon Members in Parliament at M46 and on the virtual platform. Let me also welcome here at M46, the Public Protector and her legal team led by Adv Mpofu. AlSo to acknowledge and welcome evidence leaders at M46, Adv Ncumisa Mayosi and Adv Nazreen Bawa. Members of the media, members of the public present with us on various platforms, YouTube, DSTV Channel 408. You’re all welcome. Just want to make sure that we have our link is working. Adv Mpofu, do you hear us?

Adv Dali Mpofu: Yes, I can hear you, Chairperson and Hon Members.

Chairperson: Thank you, Adv Mpofu. It means our link is working. It’s very clear, Adv Mpofu. Thank you. Colleagues, as I just indicated that we have a new witness on the stand for us here today. Before I invite Adv Bawa, just to indicate I did get a message through Adv Matlhape that Adv Mpofu that you’re looking for an opportunity to address. I indicated I will do that; just so that you know. Let me now recognise Adv Bawa.

Adv Bawa: Good morning, Chair. Good morning. Our witness today is Mr Gumbi Tyelela, who will be testifying. Are you going to give Adv Mpofu an opportunity to address the Committee before we go to the witness?

Chairperson: I just want to check, is Fatima online?

Ms Fatima Ebrahim: Yes, Chair I am

Chairperson: Okay. Just be ready. I know I’d indicated, Adv Bawa, having received the request from Adv Matlhape about Adv Mpofu wanting to address but it's in relation to correspondence that would have been sent to him through the Chair. Not about the witness. I’d want to treat those things in that way.

Adv Mpofu: Chair, I don’t understand what that means.

Chairperson: Okay, I hope you did hear me when I was speaking and in response to your request. Let me hear you.

Adv Mpofu: Yes, no, I did hear you, Chairperson. But when you said you're going to give me the opportunity, I think like Ms Bawa, I thought you were going to give it to me now. I would prefer to do that and get it out of the way so that we then deal with the witness. It's just to place a few things on the record as usual. I don't want to do that in the middle of the witness's testimony when he has already been sworn in, because then it becomes almost part of his transcript, if you know what I mean.

Chairperson: Let's see how it goes. I think you have persuaded the Chair to give you an opportunity. Let me allow you to do that.

Adv Mpofu: Thank you, Chair and it won’t be long. Yes, it's about the correspondence that we have received from yourselves yesterday. Yes, unfortunately, we only received this issue, the outcome of your deliberations in the media through the media, which we were quite worried about. Remember, we had said that we didn't want to discuss the matter in the media before raising it here. But unfortunately, the Committee, I think saw it fit to release a media statement before informing us through this platform here of the developments, but I'm just flagging that just as an issue of concern. Maybe going forward, we should just have a protocol of how these things are communicated because otherwise, both sides can, all parties and the Committee can start with the media before addressing things here, which might lead to undesirable results. But be that as it may, Chair, we did then receive the correspondence. That is the issue that we want to address. It was regarding our application to you, in terms of 5.3 of the directive to take the necessary steps to summons Mr Cyril Ramaphosa to appear before the Committee as a witness. Now the two documents were received is your letter, about which I'm not going to say much, because it simply records the discussions in the Committee. We note that the matter was decided, probably by a majority vote. We note what is put in your letter about Hon Herron’s position, that the Committee should have sought information from us as to why we wish to call the President or further information, I suppose, more than the information that we furnished. Reading between the lines, we assume that that proposal was defeated by the majority. Okay, so that's all that we have to say about the letter. The issue that we wish to address, Chair, just for your information, because it's connected to the other requests you make in your letter about us furnishing you with our list of witnesses by no later than this Friday so that that can be factored into your planning process, regarding the programme, the proposed programme, or the old programme, or whichever version of it. Just to assure you that, yes, we have actually reached such an agreement with the evidence leaders in our meeting last Friday. So we will do our best to comply with that request. But the only connection between that request, and what I'm about to address is the fact that it obviously deals with witnesses, with our list of witnesses. AlSo it might affect how we would have sequenced those witnesses, if Mr Ramaphosa was one of them, or will be one of them, or whatever is going to happen. Now the next leg of what I want to discuss, Chair, not discuss, to place on the record, is that we, as I say, we received the first report of this from the media. And we almost fell into the trap of which we shouldn't have, we should know better of believing the media narrative, which was that there was an opinion against the appearance of the President. But thanks to you, we have now received a copy of the opinion. And our view is that the opinion does not say what is reported in the media. Because the opinion at paragraph 46 says that there is no legal impediment that prohibits the Committee from summonsing the President or another person to appear before the enquiry and it may do So and then it explains the criteria. Then it says, in the event that the Committee is of the view that the President's presence before this Committee is necessary, we advise that in the spirit of collaborative governance, the Committee itself first and invites the President before proceeding with the issue of a summons. That's really the gist of the opinion. So and we agree with the opinion, by the way, that there's no legal impediment to the calling of Ramaphosa. Which means the only legal impediment quote unquote, is the vote of the Committee. The Committee, knowing that it had no legal impediment, voted against calling the person that obviously then becomes the only legal impediment to his calling. So we want to just record that, that it's got nothing to do with the opinion. On the contrary, the opinion states the correct legal position. Now at least in that respect, we differ with some aspects in the opinion. For example, it's invocation of the prerogative. Some colonial thing called the prerogative which doesn't exist in a constitutional democracy. But those are just issues that will be addressed in due course. The other issue that we take is that, just for the record to explain once again, and this will be in support of Hon Herron’s position. That maybe we should have been asked to explain certain things if they were not clear. We thought they were clear, but obviously, they were not. And one of them is the issue of the suspension. When we refer to the suspension in the first letter, we were not referring to the issues that are before the courts. We obviously know better than that. We wouldn't have called the President just to canvas the issues that are before the Western Cape High Court. The suspension does not only concern the issues in the Western Cape High Court, it also overlaps between this process, which would trigger the President's power to suspend in other words outside of the issues that are before the court. So obviously, that was completely misunderstood. But again, it is what it is. But apart from those kinds of issues, as I say, we are in agreement with the conclusion of the opinion that there's no legal impediment against calling Mr Ramaphosa. And I call him Mr Ramaphosa not out of disrespect, but I'm simply trying to explain another point which you want to place on record. That you, although obviously, we had to address him at his workplace, so to speak, we're not calling him in his capacity as the President, as such, of the country, but as a citizen as a witness, like any other witness. As a witness, who has implicated the Public Protector in conduct, alleged conduct, which would be impeachable before this Committee. That's really all. So he is in no different position than a Mr van Loggerenberg or Mr Pillay and all those other witnesses who had made allegations in affidavits. Then they were called here to deal with those allegations to support the impeachability or otherwise, of the alleged conduct contained in their affidavits. So it's untenable to say Mr Pillay and Mr van Loggerenberg, for example, should be called but Mr Ramaphosa should not be called. It just doesn't make sense. But again, we don't want to debate that issue now, because the decision has already been made. So where we are then, Chair, is to simply indicate to this Committee that we do not accept the majority decision of the Committee, to go against the opinion and what we have said, and we would have preferred that if there were issues that need to be clarified. If there is such an opportunity, still, we are asking for it. For us to clarify further areas where there might have been lack of clarity, for example, the suspension issue that I've just mentioned. Failing all that, in other words, if you are not prepared to go that route, then obviously we will then take your letter at face value as the final word on the on the issue. Then we will take whatever legal steps might be necessary to secure the presence of this necessary witness. The last point is to say that which is another fundamental mistake in the approach, the witness is not being called because he may be necessary or deemed necessary by the Committee. There are three types of witnesses. Those that might be called by the evidence leaders because they find that witness necessary. Those that might be called by us, and those that might be called by the Committee. So the question as to whether this witness is necessary must be viewed from the point of view of the Public Protector, who is the person calling this particular witness who has just refused to come like any other witness, like Mr Kekana. Who I think had refused to come in respect of the evidence leaders, and they therefore invoke the rules in order to secure his attendance. So again, the President in that respect is not any different to Mr Kekana. So that's another area that seems to have caused some confusion as to whether the necessity is, in other words, whether the witness must be deemed necessary by the Committee or by us, who are calling him. Yeah, so that's where we are with that issue. And we are going to therefore, the only problem, Chair, is that it, as I say, it might affect not so much the number of witnesses because we can always postulate a scenario where he’s one of the witnesses, or, and another one where he's not one of the witnesses. I think that's easy to plan. But it will certainly affect our sequencing of the witnesses. Because until that matters resolved, we obviously have a right to sequence our witnesses in a manner that we prefer. So if for argument's sake, we wanted to call him as our first witness, and I'm not saying that's the case, then it would then affect how our next witness would come, because we might not want him to come as number ten – if we wanted him to come at number one or number three or whatever. I think it's clear that it will affect at least the sequencing, if not the number of witnesses. So it might cause a glitch in your request for us to indicate in more certain terms on Friday our witnesses, although we will endeavour to do so. Sorry, Chair, let me just check if there's anything that I’m… Yes, the final point is, yes, there's also some problem with the opinion regarding its invocation of the State Capture Commission case and that kind of thing. Because this is not a commission of enquiry; this is a different process. Both of them are not courts of law, but they are completely different. So we don't accept that there's any relevance in respect of the State Capture matter. In any event, the part that is quoted doesn't assist the writer of the opinion. But again, as I say, we don't want to quibble much with all those things, because we agree ultimately with their conclusion. Yes, that's it. That's it, Chair. That's it. So long and short is that yeah, we will advise you as soon as we have worked out our legal position in terms of the legal opinion that we're formulating around these issues. Hopefully before Friday, before the Friday date of the witnesses, but you must just be rest assured that we do not accept the decision and to the extent that it might be challengeable, it will be challenged, and whatever implications that might have been on this body, we will then address you further. Thank you, Chairperson.

Chairperson: Thank you, Adv Mpofu, for placing those matters on the record. Just to briefly indicate as I proceed, that the Committee would have met yesterday, deliberated on a full agenda of items in front of it, including deliberating on this matter. It satisfied itself on what was before it and decided that the matter does not pass the test it set for itself. In that regard, it has taken that decision, as a Committee. I would have written therefore on behalf of the Committee, the correspondence you're referring to. We will await any response that you will formally write back to the Committee based on that letter. Just also to indicate that the nature of the work of oversight and all parliamentary committees is the kind of work that is transparent, open to the public. Everything we do and say gets to be reported on the spot. And our meetings are open to the public and the media. So even before a statement would be issued by the Chair on behalf of the Committee, media houses of whatever form in their own right report. They would even report who said this and so on. So they would have reported a decision of the Committee. By the time you receive the correspondence formally from the Chair, you would have been told given clips in television about what they call breaking news. We have no control over that by the very nature that our work of this National Assembly and Parliament requires us to do, and I think that's well stipulated in our Constitution, it's a constitutional obligation. Unless a meeting would have been convened in camera, and when you do that reasons have to be provided to justify. I am trying to reflect on your discomfort which I sympathise with that before you could read this letter, you're already seeing things flying. I do know that you understand that fully; you are in the space, the legislature space, you've interfaced with that, and at some point you were in that space. So it's not something that you don't know. I thought I must just explain that. We will await your response to the letter we have written to you. I take cognizance of the commitment you make subject to being able to deliver on the date on Friday. I accept that there might be some difficulties. I think you've placed those on the record. Because that would also have been raised in the letter itself. So I just want to make those points in relation to the issues you have placed on record. And I think at this point, it is not an item on our agenda. We have noted it and you have some difficulty even including with the legal opinion. We allow that you don't agree with the legal opinion. It's very clear that a legal opinion is a decision enabler. It's not a decision on its own. We would have taken our own decision as a Committee having read, having satisfied ourselves with the legal opinion, because imagine if a legal opinion says close shop. We wouldn't do that. So it provides a basis for a decision.

Adv Mpofu: No, Chair, you’re preaching to the converted.

Chairperson: I’m not referring to you. I'm just making the point. But maybe you're right, let me not labour the point. Thank you very much in that regard and I'm still on the platform. I just want to summarise the issues in that regard, and indicate to members of the Committee this is not a discussion because I would want us to proceed and start our proceedings. You would have raised one or two issues about the witness and I’m going to ask Adv Bawa to perhaps clarify that. I am now proceeding therefore to the next point. Adv Mpofu, I don't want us to have a to-and-fro dialogue on this matter. Is there a quick point that you want to raise?

Adv Mpofu: Yes, Chair. Sorry, no, honestly, I'm not going to have a dialogue, especially if, as you say, there's not going to be any interchange with the Members on this point. I've said what I've said, I'm not going to repeat it. Chair, firstly, just for your own comfort here, on the issue of the media. I accept what you are saying that the meeting is open, and it would have been reported, you know, like any other open meeting. The only issue we're raising really was just the discomfort of hearing this for the first time or being asked about it. But you know I suppose that's what living in a constitutional democracy means. So the only concern was to the extent to which I raised that the reporting was distorted. But again we should not have been surprised by that. Therefore, that's why I've placed on the record what our reading of the opinion is, and but we're not blaming the Committee, but also on our side, we will always try not to raise things in the public space if it can be avoided, before we raise them here. That's all I was saying because, for example, we were being asked to respond to this yesterday as you can imagine, Chair, but we refused to do so because we said no, we'll keep to the protocol of raising the issue here, formally, rather than having some media spat about it, so to speak. An unnecessarily media spat. I just want you to understand our position as well that we will try to do that. But now and again we might also be forced to place things, to respond at least when things get into the media before they are placed here.

Chairperson: That’s perfectly in order. I am with you. I understand that Adv Mpofu. Thank you very much. Can we now proceed? I invite Adv Bawa. Should I start with Ms Ebrahim? Okay, Ms Fatima Ebrahim, can you please lead us and deal with the preliminaries of the witness.

Ms Ebrahim: Thank you very much, Chair. Mr Tyelela, can you hear me?

Chairperson: Come again?

Ms Ebrahim: I'm asking if the witness can hear me, Chair.

Chairperson: Maybe I will ask you to introduce yourself as you're going to do to the witness. Just place on record who you are.

Ms Ebrahim: I’m Fatima Ebrahim, a legal adviser to Parliament, and I'm going to be administering your oath. Can you hear me?

Mr Gumbi Tyelela: Yes, I can hear you. Good morning.

Ms Ebrahim: Good morning. Can I please ask that you state your full name for the record?

Mr Tyelela: Gumbi Tyelela.

Ms Ebrahim: Mr Tyelela, you have been invited subject to the provisions of section 16 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act of 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 further 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. I’m now going require you to either take an oath or affirm that the evidence you are about to give is truthful. Which do you prefer?

Mr Tyelela: I prefer an oath.

Ms Ebrahim: May I ask that you please raise your right hand and repeat after me: I swear that the evidence I shall give, shall be the truth, the whole truth and nothing but the truth, so help me God.

Mr Tyelela: I swear that the evidence I shall give, shall be the truth, the whole truth and nothing but the truth, so help me God.

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

Chairperson: Thank you, Ms Fatima Ebrahim. Thank you to Mr Tyelela. I now hand over to Adv Bawa.

Witness: Gumbi Tyelela

Evidence leader Adv Bawa: Chair, before I turn to posing questions to the witness I need to put the witness evidence into context and also alert the Committee to Adv Mpofu’s position in respect of the witness. The Committee will be aware that charge four, and I quote from the motion, is a charge that states as follows: That Adv Mkhwebane is guilty of misconduct in that Adv Mkhwebane has intimidated, harassed and/or victimised staff, alternatively has failed to protect staff in the Office of the Public Protector from intimidation, harassment and/or victimisation by the erstwhile CEO of the Office of the Public Protector, Mr Vussy Mahlangu. In particular, the following staff members who have been threatened with or had disciplinary action taken against them, unlawful and on trumped up charges. Now this witness is the Acting Head Corporate Services in the Office of the Public Protector who essentially oversees the management or the department or care of Human Resources within the organisation. The Committee would, in its deliberations, have to make a call on the question of intimidation, harassment and/or victimisation of staff. And what is before this Committee in evidence or will be put in evidence or is contained in the motion already is instances of employees who have been dismissed; employees who have been charged; employees who have received audi letters which we'll explain in a bit. The context is to make a determination that within an organisation whether steps that are taken in relation to employees fall into the category as predicated in the motion or fall into a category as to whether that falls within simple, or labour related or human resource management within the department or organisation. And for that reason, the evidence leaders felt that in respect of people who appear or whose names have arisen in this context, that it was important for the Committee to hear what the leadership in relation to human resources could place before the Committee on what is contained in documentation that falls under his control. So that's the context of it. Mr Mpofu reflected to me that he thought the evidence would be irrelevant. I think he might make that motion to the Chair once I stop, and that, for purposes of curtailing the duration, he didn't intend to cross-examine the witness. Although he reserves his right to ask a few clarificatory questions on issues raised in sections A, B and C of the affidavit and sections D 2,3,4,10,12,14,15 and 16 in an endeavour for us to assist in the process today. Mr Tyelela, Good morning.

Mr Tyelela: Good morning, Adv Bawa.

Adv Bawa: You are currently Acting Head: Corporate Services in the Office of the Public Protector, correct?

Mr Tyelela: That's correct.

Adv Mpofu: Chairperson? Sorry, advocate.

Chairperson: Did I hear you, Adv Mpofu?

Adv Mpofu: Yes, Chair, sorry. I think you didn't see my hand.

Chairperson: Okay, sorry.

Adv Mpofu: Sorry, I'm sorry to both the witness and Adv Bawa. She indicated, I had indicated to her that I was going to say something about this witness before he starts. And again, I won't be long. Firstly, I confirm the sections that we are saying that we won't necessarily deal with, in other words, which we are not disputing, in line with the guidance of Hon Herron, as indicated by Adv Bawa. Although we have reserved our right to ask a few clarificatory questions, should it transpire that that is necessary because sometimes the oral evidence naturally goes further than what is on paper. But the most important thing, Chair, is one in respect of which you may need to make a ruling if you are so disposed. That is the issue of relevance that Adv Bawa raised or rather said we were going to raise here. We can’t work out exactly what this witness is going to add to the issues raised, even in that charge of victimisation, harassment and intimidation, because he doesn't make any such claims. But yeah, I mean, maybe I should just read it, as we indicated it to Ms Bawa. We said, in respect of the Witness Tyelela we are of the view that his evidence is not relevant to the motion. However, we know that the Chairperson will rule otherwise if previous experience is anything to go by. Therefore, to curtail the duration we do not intend to cross-examine on this and that, and as we explained earlier. So that's our position, Chair. I think, just as a formality, that’s our objection to the witness. You may rule that he’s relevant and then we go ahead.

Chairperson: Before I go to Adv Bawa. Adv Mpofu, I’m sure we'll agree here. I don't want you to bring a briefcase. You know, my briefcase story. To bring a briefcase of rulings into this. I welcome that you're placing on the record that you don't believe and based on what you have, you don't think that there's relevance about the witness on which evidence will be led. I think I firmly take that. And you want us, want me to rule on that. But before I make the ruling, just to make the point that you can’t be knowing what ruling I'm going to make even if you have got abilities to read one's mind. Or you have the ability based on some form of a track record, I wouldn't want you to make those conclusions. I would have indicated before that we're going to deal with each witness, understand and deal with those issues. Because the way you're putting it now, in other games is called a pre-emptive strike. So that I do the opposite.

Adv Mpofu: You can surprise us, Chair. We are not sangomas, but we can do that in mathematics what is called extrapolate.

Chairperson: Thank you, Adv Mpofu. I'm just indicating that as much as I'm asking you not to, I also don't have briefcase rulings for everything put on the table, I will rule in a particular way. I want you not to go to that level about how you understand the Chair in doing this. We've been consistent, perhaps we have made this point before, and we'll go to a ruling that say allows the Committee to go through this and listen to the evidence that will be led with the witness. And I’m sure before the end of the day or when they deliberate and ask their questions, Members would deal with some of those issues. For now, the only ruling I will make that we proceed and hear the evidence and interact with the witness. But I did not come with a way ready-prepared ruling on the matter. Thank Adv Mpofu.

Adv Mpofu: Thank you, Chairperson. We understand and we are suitably surprised. Thank you, Chairperson.

Chairperson. Thank you, Adv Mpofu. Let's proceed Adv Bawa.

Adv Bawa: Can I maybe for the record also say that when we look at witnesses we don't only look at them to make out a case as such as I seem to be understanding it. As to does the witness evidence support intimidation, harassment and/or victimisation. But also whether there’s evidence which shows something to the contrary. In other words, it seemed logical that if you're talking about harassment of staff that HR needs to talk to the committee. But I'll leave it at that. Maybe Mr Tyelela, can I come back to you, and I apologise that we've delayed your evidence. Your affidavit for the record is to be found in bundle D at page 3383. Now by virtue of your position, and I'm going to take you through things very quickly given Mr Mpofu’s position on the evidence. You have documentation under your control. You've provided us with access to that documentation. Some of the documentation has been annexed to your affidavit or has been provided to the Committee and has been used by other witnesses in that regard. You also indicated to us that you don't necessarily have personal knowledge of every item in the document, but you’re before the Committee for purposes of assisting the Committee and if there's anything you can't deal with orally, you will indicate such and endeavour to obtain that information and provide it to the Committee in writing. Is that correct?

Mr Tyelela: That is correct.

Adv Bawa: Now, I didn't detail it in your affidavit, but possibly for purposes of the Committee. Could you just explain what your position entails within the organisation? You have an acting position and the position you occupy in a permanent post.

Mr Tyelela: Okay, thank you, Chair. My substantive position is Senior Manager: Human Resources, but I'm currently acting as the Executive Manager: Corporate Services.

Adv Bawa: Can you just say, how long have you been with the PPSA? And in your position as Acting Head of Corporate Services, what departments fall under you?

Mr Tyelela: I joined PPSA in April 2016. The units that fall under me are human resources, facilities management, legal services, knowledge management, ICT, and communication.

Adv Bawa: Thank you. Now the first section of your affidavit deals with organograms, and they are approved organograms within the organisation that sets out what funded positions are within the PPSA, correct?

Mr Tyelela: That's correct, Chair.

Adv Bawa: These are usually detailed in your annual reports. As far as organogram is concerned there’s only one issue I'd like to confirm with you. That the position of Chief of Staff has always been a funded post since 2016 at least, is that correct?

Mr Tyelela: That is correct, Chair.

Adv Bawa: Then if we go to policies. The organisation itself has a number of policies, which you've provided to us on various issues ranging within the organisation, correct?

Mr Tyelela: That is correct.

Adv Bawa: And you've given us the registry reflecting those policies. And a number of them are detailed in your affidavit. These are updated every few years. Is that not so?

Mr Tyelela: Yes, that is correct.

Adv Bawa: And these policies, to who do they apply?

Mr Tyelela: They apply to all PPSA staff.

Adv Bawa: That would not include the executive authorities, save to the extent that the policies empower them to do something specific, correct?

Mr Tyelela: That is correct, yes.

Adv Bawa: Then in section C, you deal with, you set out two of the documents dealing with the austerity measures that have been put in place in the organisation, which is an annexure to your affidavit at 3416 and 3418. If we could just go to, they’re not materially different, correct?

Mr Tyelela: No, they are not materially different. That is correct.

Adv Bawa: And can you tell us what usually underscores these cost containment measures that are imposed?

Mr Tyelela: Well, it would be circulars, for example, from the National Treasury. It would be our spending throughout the year. We'll receive quarterly reports from finance then that will determine whether we should take action, whether if for example, we foresee over expenditure at the end of the financial year. Those would require us to make decisions during the course of the year regarding spending.

Adv Bawa: In fact, on the first memo, one of the concerns was indeed over expenditure in 2018/2019. As you see from the memorandum attached, you see that?

Mr Tyelela: Yes, that is correct.

Adv Bawa: In paragraph two, well, which is three, four and seven.

Mr Tyelela: Yes. That is correct.

Adv Bawa: We see the nature of austerity measures or cost containment. Mr Tyelela?

Mr Tyelela: You are breaking. I did not get that.

Adv Bawa: Okay, so the question to you is that if we look at paragraph 2.3, and we see the nature of the cost containment measures. They relate to catering, travelling, accommodation in this regard specific to the organisation, further outreach clinics beyond what is required for target purposes, the usage of telephone, travelling, etc, correct?

Mr Tyelela: That is correct.

Adv Bawa: And, in fact, we see similar cost containment measures in the next memorandum, which is issued in September 2019, which is GT2.

Mr Tyelela: That is correct.

Adv Bawa: In paragraph 10 of your affidavit, I asked you, you were asked about the existence of a circular issued by the CEO Mr Mahlangu dealing with the PPSA not opposing review applications. You indicated you were not aware of that circular, but you were aware a decision had been taken, can you elaborate on that?

Mr Tyelela: Yes Chair, that is correct. I was not aware of the circular, but I was aware of the decisions that were taken, because as I indicated earlier, these matters are reported in our management meetings. I was aware of the decision that was taken in one of the meetings that we should not oppose all matters, that is to cap the cost.

Adv Bawa: Then a further document, which was then prepared, as reflected in paragraph 11, at effectively our request, was a list of employee or labour-related disputes that have arisen and the progress and outcome of these matters and the extent of cost incurred by these matters. And you and Ms Manyike, the Manager: Labour Relations, assisted in the compilation of this document, correct?

Mr Tyelela: That is correct, Chair.

Adv Bawa: In doing so, this was done in conjunction with the finance department and legal services. If I could just put that document on the screen, it is to be found in Bundle D, it's 18.15 and 18.16. Effectively what this list is in three categories – maybe we should work from the bottom up, go to the table right at the bottom. If we look at the grievance column. This table only relates to employees at head office, correct?

Mr Tyelela: That's correct.

Adv Bawa: These would be just, can I maybe phrase it as run of the mill issues that are dealt with in the ordinary labour-related environment in an organisation? Would you agree with it?

Mr Tyelela: Can you repeat that?

Adv Bawa: That the nature of the grievances would relate to perhaps what one would call ordinary run of the mill labour-related matters that arise in an organisation?

Mr Tyelela: Yes, that is correct.

Adv Bawa: Who would normally attend to these grievances?

Mr Tyelela: According to our grievance procedure they start at the lowest level, at the supervisory level and then if it's not resolved, it moves up until it goes to the Public Protector. It goes up the management levels until it goes to the Public Protector, if it's not resolved at different levels.

Adv Bawa: If the grievance has been resolved at the first level, then it never goes up the chain. Would that be correct?

Mr Tyelela: That is correct, yes?

Adv Bawa: Okay, let's go up to the next table. The next table relates to disputes although the heading says CCMA, we understand it to be disciplinary proceedings and CCMA, correct?

Mr Tyelela: That's correct. Yes.

Adv Bawa: Now, if the grievance isn't resolved with an employee, then it goes to the next level. And what would that be?

Mr Tyelela: Well, it would go up to the Public Protector and then if the grievance is still not satisfied, then he or she can declare a dispute.

Adv Bawa: When we look at this list of disputes that's concluded in this list, these are people for whom disciplinary proceedings had been instituted before a disciplinary chairperson, alternatively, the CCMA. Would that be correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: What this column shows effectively is the position the person was in, the nature of the dispute, the status of the matter, the legal costs that have been incurred and the cost to the organisation as a consequence of an award that's been made, correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: So if we go down, let’s use Mr Samuel as an example, because he's known to the Committee. It effectively says Mr Samuel was the provincial representative of the Free State. The issue was unfair dismissal. The commissioner found that the dismissal was substantively unfair and ordered payment to be reinstated retrospectively. The next column shows the cost to the Public Protector’s Office of running the legal matter. The final column shows the award emanating from the disciplinary proceedings, correct?

Mr Tyelela: That's correct.

Adv Bawa: Then if we see with Mr Kekana, it will show that the award was in favour of the PPSA. That there is currently a pending review before the Labour Court, so there's no award that's been made to him. And effectively the costs for Mr Kekana is then either dealt with in the next schedule. Or alternatively, it will be dealt with when we deal with the question of legal costs, correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: So where we discuss any of the employees in your affidavit, then a snapshot is on this schedule?

Mr Tyelela: Yes, that's correct.

Adv Bawa: For purposes of ascertaining where costs lie, and the question of what is the legal cost, is one of the issues that we must come to next week with the Committee. When you pay out an award to an employee, which is labour related, then that award and the cost of the litigation comes out of the litigation budget, would that be correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: So a component of what is spent on legal fees would come from labour-related matters?

Mr Tyelela: Yes, that is correct.

Adv Bawa: So for purposes of this Committee, not all the litigation costs necessarily relate to the review of the reports that emanate from the Public Protector’s Office. Would you agree?

Mr Tyelela: Yes. I agree, that is correct.

Adv Bawa: Right. Now if we go to the next schedule that is prepared, which you see at 18.16. There are a number of employees and there’s seven that's listed here, as a matter of principle, if you go down to the bottom column, it shows the periods of the suspension of these employees and the salaries that are paid during the suspension, correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: The total, and I did total it, it's R10 million and something. I don't have the figure here but I'll just double check it during the tea adjournment. But the principle that I want to raise with you, that the totals at the bottom don't come from the legal costs bills; they come from the employment component of the organisation. Would that be correct? In other words, it's salaries, that comes out of salaries?

Mr Tyelela: Yes, it's the cost of employment.

Adv Bawa: Okay. Then if we turn to paragraph 13 of your affidavit. If you deal with matters which would fall under grievances at the first level, like performance bonuses, job grades, leave policies. If you resolve it at level one, then it wouldn't entail any Public Protector involvement at that level. Would you agree with that?

Mr Tyelela: Yes, that is correct.

Adv Bawa: It is when steps are taken further that the Public Protector may get involved. Would you agree with that?

Mr Tyelela: Yes, that is correct.

Adv Bawa: Further, if you go to paragraph 15, it is also so that when the grievances or labour matters are dealt with internally, then there aren't cost implications. It's only when external service providers are engaged that there are costs incurred, correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: Now, maybe, we have heard about this audi letter, somewhat, and we’re probably going to hear a bit more but can you maybe from a labour perspective explain to the Committee what is an audi letter?

Mr Tyelela: An audi letter is a letter that is usually sent by the supervisor to his or her subordinate to explain why he or she has not done what he was expected or supposed to do.

Adv Bawa: What then happens, the letter gets issued and the employee then responds and then?

Mr Tyelela: Then if the response of the employee is satisfactory, then that is the end of the matter. If the response according to the supervisor is not satisfactory, then further action may be taken. An employee, for example, could be issued with a verbal or written warning or whatever sanction. So that's basically what happens after the audi letter has been received and dealt with.

Adv Bawa: We then inquired from you to give us an indication of whether you issued these letters and to give us an indication as to how many letters of this nature would have been issued within the organisation. If you could perhaps explain to the Committee how this operates?

Mr Tyelela: Thank you, as I indicated earlier, it normally comes from a supervisor, the immediate supervisor asking the employee to explain whatever the supervisor wants to be explained. Then if the employee explains to the satisfaction of the supervisor, then that's the end of the matter. If the supervisor is not satisfied with the explanation, then further action could be taken.

Adv Bawa: So when a supervisor issues an audi letter, are you necessarily provided with such letter?

Mr Tyelela: Not necessarily. I mean, they say that is a line management function. They don't have to necessarily involve HR unless they want HR to advise on the matter. Otherwise, they don't have to involve us.

Adv Bawa: In other words, what you could not provide the Committee with an indication of how many such audi letters would have been issued to employees within the PPSA over any period of time, correct?

Mr Tyelela: Yes, correct.

Adv Bawa: You were then asked whether you had been instructed specially to issue audi letters by the PP and the context in which that was done. Could you explain that to the Committee?

Mr Tyelela: Yes, I, some time ago I received a WhatsApp from the PP asking me to draft an audi letter to one of the senior investigators because she did not attend the meeting which she was supposed to attend with PP. And PP took that as insubordination.

Adv Bawa: What did you then do?

Mr Tyelela: Well because I did not know the details of the matter. In an audi letter, you need to be specific what you want the employee to respond to. I contacted the line manager and informed her that I've received this WhatsApp from PP, and I don't know what are the issues. Can she explain to me. Then she says that as line management they are dealing with the matter, I don't have to do anything, they’re dealing with the matter. So then I informed PP that you know I've conducted the line managers, they’re dealing with the matter. Then I left it there.

Adv Bawa: What then arose after that?

Mr Tyelela: I assume that they dealt with the matter. I never took any further action on the matter.

Adv Bawa: Okay, so that was the end of the matter?

Mr Tyelela: That was the end of the matter. PP just raised a concern that they were too slow in dealing with the matter.

Adv Bawa: Okay, if we turn to a few of the employees whom this Committee has been told about. Mr Neshunzhi has already given evidence. If we could go to paragraph 20 of your affidavit. I'm going to run through it quickly. He had been appointed to the position Senior Manager: Security Management in 2017, pursuant to a panel shortlisting him. And when it’s a senior post, do you sit on the panel, Mr Tyelela?

Mr Tyelela: Yes, in the senior management positions, I do sit on panels.

Adv Bawa: You explained that you ask the HR related questions, but you don't score with the panel, but you are involved in the shortlisting process?

Mr Tyelela: Yes. I'm usually the secretary of the meeting. I ask HR related questions. I also advise on HR related matters to the panel.

Adv Bawa: In this matter, there was a representative from the State Security Agency that sat on the panel. Is it common for external persons with expertise of a particular nature to assist the PPSA in the appointment posts?

Mr Tyelela: Yes, it is common.

Adv Bawa; In fact, sometimes you get a representative from the Public Service Association or the Public Service Commission, who sits on the panel as well, correct?

Mr Tyelela: Public Service Commission not Association.

Adv Bawa: That’s right, my apologies. I wasn't sure which one, so I thought I’ll put both to you. Now at some point Mr Neshunzhi said he was moved from security to intake assessment and customer services, in paragraph 23. I think the date should be 2019 not 2018, correct? There is an error, typo in your affidavit?

Mr Tyelela: That's correct. It should be 2019.

Adv Bawa: We asked you whether this was pursuant to a recommendation contained in a report that had been provided by Diale Mogashoa relating to the overall of the security department, are you aware of this at all?

Mr Tyelela: I'm aware of the investigation that was conducted by Diale Mogashoa investigators.

Adv Bawa: Were you involved in the decision making in relation to Mr Neshunzhi’s transfer.

Mr Tyelela: No, I was not involved.

Adv Bawa: Okay, so when do you become involved in that process?

Mr Tyelela: Well, because it's an HR matter, I would be informed by the CEO that such a decision has been taken. Then I would be requested to make a submission to that effect.

Adv Bawa: And then the transfer would take place?

Mr Tyelela: Yes.

Adv Bawa: Were you aware of a process in the organisation at the time of transferring people internally for purposes of matching skills to jobs?

Mr Tyelela: No.

Adv Bawa: Now, we know from GT3, and we've heard this before so I’m going to run through it, that Mr Neshunzhi was told to come back to work after the investigation had been completed and that his garden leave had been uplifted. In GT4 there is a memorandum in relation to this issue of garden leave in respect to which, no sorry it's not there. It's 68 and it would be page 1501. You were asked to advise on this issue of garden leave. Can you perhaps elaborate to the Committee in relation to that?

Mr Tyelela: There were allegations of leakage of information. Then because the information that was allegedly leaked resides in the security management unit so obviously Mr Neshunzhi because he is the head of the unit, was obviously the suspect. Then there was this issue that the matter should be investigated and then that is what should normally when you investigate – as much as trying to show that the implicated employee does not interfere with it; that there are no perceptions of interfering with the investigation – that they would be suspended. So then this issue of garden leave came in, that is from the CEO as the option. Now from us as HR, we advised that we should not do it, because our leave policy does not provide for such leave.

Adv Bawa: Right. If we go to page 1503, what you recommended was that a preliminary investigation report was required on which to base the special leave, correct?

Mr Tyelela: Yes.

Adv Bawa: And then at a subsequent occasion, Mr Neshunzhi was transferred from the…

Mr Tyelela: Okay, I can't hear you now.

Adv Bawa: Stakeholder management, but on to the Provincial Investigation branch. This was a…

Mr Tyelela: You broke. I did not get that. Can you repeat that?

Adv Bawa: Sorry. I pointed out that during May 2020, Mr Neshunzhi was transferred to the coastal branch, and this was approved by the PP as one sees from 3425 on 28 May 2020.

Mr Tyelela: That is correct.

Adv Bawa: It was a salary increase post. It was an OSD post, correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: And Mr Neshunzhi’s security position was subsequently advertised?

Mr Tyelela: That is correct. Yes.

Adv Bawa: And you sat on the interview panel for that position?

Mr Tyelela: Yes, I did.

Adv Bawa: And people who sit on the interview panel have to complete the disclosure form to disclose conflicts, correct?

Mr Tyelela: Yes, that is correct.

Adv Bawa: And even if a conflict is disclosed, it wouldn't preclude them from, they do not necessarily have to recuse themselves from the position of being on the panel, correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: So if we just go to, just want to get this cleared, 1336. So even though the PP sat on the panel if we go down for the positions of PREC and Senior Manager Security. Now I want to look at numbers one to eight. Right?

Mr Tyelela: Yes.

Adv Bawa: Number one. The disclosure form will tell you that you're not personally related to or know any of the candidates on the short or long list, and where you do have a relationship, it's not of the nature that does convey favouritism. And you would then disclose which of the candidates you do know. That that knowledge will not affect your judgment in the shortlist or interview, and that you would not be influenced by any person to favour any candidate, correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: And everybody who sits on the panel would fill out such a form?

Mr Tyelela: Yes, that is correct.

Adv Bawa: The next person we go to on page 30 of your affidavit relates to the appointment of the Deputy Public Protector. And we asked you for a job description, and you informed us that there was written delegations in place for the Deputy Public Protector, correct?

Mr Tyelela: That is correct.

Adv Bawa: And that these are contained in what was then his HR file under your control. Right. So if we take you to paragraphs 32 of your affidavit. But I think let's just go to GT5, which is the document relating to the powers of the Deputy Public Protector. If we see the first set of delegations in place, was those which prevailed from December 2016, where Adv Mkhwebane confirmed it. Paragraph 2.1 and 2.2, powers and functions delegated to the DPP, which is oversight pertaining to operations of the Administrative Justice and Service Delivery Branch, including provincial activities and oversight role on matters of quality assurance relating to adherence to prove operational business and government processes in all offices, correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: We then see from GT6 that in May 2017, if we go to the background information that’s there. It reads that the Minimum Information Security Standards require the head of any state institution to implement the security competence process of the institution's personnel who are responsible for handling classified information. The most senior personnel in the institution who hold strategic positions are expected to obtain top secret security clearance certificates which enable them to handle classified information. All executives and senior managers including the Deputy Public Protector have applied for security clearance to comply to meet requirements. It was unfortunate that "your application for top secret security clearance certificate was not granted". It wasn't granted because he didn't have the requisite number of years as a South African citizen, correct?

Mr Tyelela: That's correct. Yes.

Adv Bawa: Right. The next page then says in the third line, "The denial to issue the top-secret security clearance by the SSA suggests that the Public Protector cannot delegate tasks which involve classified information, as a result I’ve decided to delegate tasks commensurate to the security competence status of the DPP, while awaiting the parliamentary processes to unfold". Then, if we go down the document, from number one onwards. We see that he's tasked to deal with training and to seek partnerships with SETA and to report to the Public Protector on a quarterly basis. Are you aware of what parliamentary processes are referred to?

Mr Tyelela: No, I'm not aware of that process.

Adv Bawa: And are you aware of the matter ever coming before Parliament?

Mr Tyelela: Which matter?

Adv Bawa: Of the functions to be performed by the Deputy Public Protector. Was it ever considered by the Parliamentary Portfolio Committee?

Mr Tyelela: I’m aware that in one of the Portfolio Committees, the Members of the Committee raised concerned about the DPP delegation being that of training. I remember one of the Members raised a concern that the DPP was relegated to a training officer. They raised concerns about the delegations that were given to DPP by then.

Adv Bawa: Then on the next document, which is at GT7. We see an amendment to the delegations in April 2018. In which over and above the training functions, the DPP had the projects of two years and more to check Task Team meetings which deal with Think Tank files and critical files and all draft reports in section 7(9)s is to be submitted to the DPP for quality checking, before being submitted to the PP for approval.

Mr Tyelela: Yes, that’s correct.

Adv Bawa: It then further states in your affidavit at paragraph 38 that there was then a performance agreement concluded with the PP on performance expectations. Do you have any knowledge whether those performance expectations were met?

Mr Tyelela: No, I'm not aware of any performance assessment that was conducted between PP and DPP.

Adv Bawa: And are there any contained in his HR file?

Mr Tyelela: No.

Adv Bawa: Then the agreement that was concluded with the Deputy Public Protector reflects that if there is a non agreement, it says in paragraph 39 of your affidavit, then it would require the services of an external mediator. Are you aware of any such external mediator ever being appointed?

Mr Tyelela: No, I’m not aware.

Adv Bawa: If you see in paragraph 41, or if we go to GT9, would be more direct. The DPP provided what's called the exit report to the Portfolio Committee of Justice and Correctional Services, which was contained in his file. If you go down to 12 May, on the second page, he details what had occurred. We've gone through that in evidence as to what had happened and the next paragraph deals with the restoration of further delegations to him. On the next page, he says, over and above that, go to the next page. "I also sit on the executive committee, which consists of the Public Protector, myself, and the Chief Executive Officer. I've recently been tasked with chairing all performance review appeals in the organisation". In the next paragraph, he says, "Delegations have, however, not been adequately implemented in practice as I've not received any section 7(9) notices and draft reports. The Think Tank structure created by the former Public Protector Lawrence Mushwana was scrapped in 2017 and officials did not make themselves available for the Task Team meeting, with the result that they stopped being scheduled". Then we go to the next person, which is Mr Kennedy Kaposa. Who was he in the organisation?

Mr Tyelela: He was the Chief Financial Officer.

Adv Bawa: What transpired in relation to him. Go to 42 of your affidavit; can you briefly tell the Committee?

Mr Tyelela: He was issued with a final warming for dereliction of duties. Then he referred the matter to the CCMA.

Adv Bawa: What transpired at the CCMA?

Mr Tyelela: Okay, then his representatives approached the institution asking if the matter could be set settled. Now that issue was reviewed by the institution, and we were of the view that it would be cost effective, that is, to settle the matter and let Mr Kaposa go and agree on a settlement. That would be the cost-effective way of settling the matter. So that was.

Adv Bawa: I'm sorry, go-ahead Mr Tyelela. My apologies.

Mr Tyelela: Finally, it was agreed that we should settle the matter. Then Mr Kaposa was given a settlement, and then the matter would be dealt with.

Adv Bawa: And the essence of the matter was that there wasn't another position available in the organisation to shift him from the CFO post. Again, he could not get top security clearance, which was required by senior officials so he couldn't continue with his responsibilities as CFO, correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: It seemed that in that context, you recommended the stance of settling with Mr Kaposa and then not appointing another CFO, but appointing an acting individual until such time as… for a period of time in order not to result in a double cost for the organisation, correct?

Mr Tyelela: Yes, that is correct.

Adv Bawa: Were you involved in the charges that were brought against Mr Kaposa?

Mr Tyelela: No, I was not involved in charges.

Adv Bawa: Right. Now who replaced Mr Kaposa?

Mr Tyelela: The institution, that is the State Security, to second one of their senior financial officials to PPSA. So somebody from the State Security, from the South African, what is it called? Was seconded to PPSA.

Adv Bawa: Right and that person was put in an acting position, is that correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: And for how long do you recall?

Mr Tyelela: For plus minus a year.

Adv Bawa: Okay. Thereafter was the position advertised?

Mr Tyelela: Yes.

Adv Bawa: As far as you were aware, was the Public Protector involved in the separation agreement that was concluded with Mr Kaposa?

Mr Tyelela: No.

Adv Bawa: Now if we turn to Mr Vussy Mahlangu, who was the CEO. You were involved in the panel for the appointment of the CEO, correct? You sat on it as it was a senior post.

Mr Tyelela: Yes, I did.

Adv Bawa: What was the decision? You advertise the post for a five-year contract period to coincide with the PP’s end of term, correct?

Mr Tyelela: That is correct, yes.

Adv Bawa: Right. Now the position had become vacant because Mr Themba Dlamini had left.

Mr Tyelela: Yes, that is correct.

Adv Bawa: What was the panel's decision at the time of Mr Mahlangu’s interview? You say that he was the best interviewee for the job. He had the requisite qualifications, right? What did the panel decide?

Mr Tyelela: Yes, he was the best candidate. But there was an issue that he was dismissed in his previous employment. So then he indicated during the interview that the matter was in Labour Court. Then the panel was concerned about that although he was the best candidate. Then the panel recommended him but on condition that the matter in the Labour Court is decided in his favour and he also gets a top security clearance certificate. Those were the two conditions that were set by the panel for his employment.

Chairperson. Thank you. May I interfere? We will pause there for tea break and be back at quarter to 12. Hopefully by then you'll be working towards wrapping up. Thank you, tea break.

[Break]

Chairperson: Thank you colleagues. We’re back in session. You may proceed, Adv Bawa.

Adv Bawa: Thank you. Mr Tyelela, we were at paragraph 51 of your affidavit, and it details what then transpires is that, due to circumstances in the organisation, with the Acting CEO becoming ill and the post being vacant. There was a need for the post to be filled. Then the PP instructed that Mr Mahlangu be offered a short-term contract for three months, correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: It was short term, specifically because of the two outstanding issues of his Labour Court matter and the security clearance?

Mr Tyelela: That's correct.

Adv Bawa: You say that you didn't really know at that stage that the security clearance would be hampered by the Labour Court proceedings, correct?

Mr Tyelela: Yes, that is correct.

Adv Bawa: There was then a performance agreement, which was concluded, and it was dated from 1 May 2018 to 31 March 2019, which sets out these functions. I inquired from you why you would have concluded the performance agreement for a one-year period when he was only on a three-month contract? Could you explain that?

Mr Tyelela: Yes, Chair. When the contract was extended, after three months, it was then that the performance agreement was concluded. It had to be back dated to 1 May because we had to account for the period he started working at the institution.

Adv Bawa: And you're referring to the short-term contract that was extended, as reflect in paragraph 56 of your affidavit? From 1 August 2018 to 31 July 2019, correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: And you say that this was done , he got a year's period, even though neither of the requirements or conditions for his employment had as such been met, correct?

Mr Tyelela: Yes, that's correct.

Adv Bawa: Now if we go up to paragraph 54 of your affidavit. At the very first staff meeting at which the CEO was introduced to the staff, the issue of his dismissal from his previous employment was raised, correct?

Mr Tyelela: That's correct. Yes.

Adv Bawa: And you say that the staff was informed by the PP that the matter was pending at the Labour Court, and that the court process should be allowed to take its course, correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: You then further detail that he made a disclosure of what was then a criminal case that was pending and that was not regarded as being an impediment?

Mr Tyelela: That is correct. Yes.

Adv Bawa: Now you then say you were instructed by the PP to prepare a further fixed-term contract ending 23 April, in paragraph 56, right?

Mr Tyelela: That’s correct. Yes.

Adv Bawa: At the time when you are asked to do so, were you aware that the SSA had already indicated that it would not issue a security clearance pending the finalisation of the Labour Court proceedings?

Mr Tyelela: I was not aware, Chair. That is why the issue of security clearance even in that employment contract was still subject, it was still one of the requirements that had to be matched or confirmed for employment.

Adv Bawa: You've only discovered that in consultation with the evidence leaders that that letter existed, is that so?

Mr Tyelela: Yes.

Adv Bawa: Now you then recalled a meeting, which occurred in the latter part of 2019. You were called to a meeting at the PP’s Office, which is dealt with in 58 of your affidavit. Can you tell us about that?

Mr Tyelela: Yes, I was called to PP’s Office where PP indicated that there were external people that were coming, that were meeting with her and other officials in the institution. So she requested me to attend that meeting and explain the appointment of Mr Mahlangu as the CEO.

Adv Bawa: And you could identify two people who as at the meeting, Adv Nyembe and Adv Sikhakane SC and another person you can’t recall, correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: And you provided the information you were asked to provide. What transpired after that?

Mr Tyelela: Well, after explaining to the meeting, how Mr Mahlangu was appointed then I was excused from the meeting. I don't know what happened after I left the meeting.

Adv Bawa: Then in December, you received a call from the PP. What did she relate?

Mr Tyelela: Yes, I was home in December, I was on leave. I received a call from the PP telling me that she's going to send a letter to me. I must draft a response to that letter. She did not say what the letter was about. I received that letter then from the PP which was Mr Mahlangu’s resignation. Then I drafted a response to that letter for PP’s submission.

Adv Bawa: So the next employee we detail is Ms Cleopatra Mosana, on paragraph 60. The issue of her labour dispute has been raised in earlier evidence before the Committee. She was initially appointed as a spokesperson in 2017 for a five-year period, correct?

Mr Tyelela: That is correct.

Adv Bawa: But she subsequently left the organisation, giving 24-hour notice.

Mr Tyelela: That is correct.

Adv Bawa: Now could you tell us what occurred with… there were essentially two labour disputes that arose. Advise us as to what was the first issue and how you got involved in this?

Mr Tyelela: Okay, the first issue I was phoned by the PP’s Office one Monday morning. I was asked to go to the PP’s boardroom. When I got there, there was the then Chief of Staff and also Mr Mosana in the boardroom. Then PP joined the meeting a few minutes later. The PP was upset. She said she could no longer work with Cleo because she’s tired of doing Cleo’s work and Cleo is disrespecting her. She can no longer work with her and Cleo must go and serve notice at home. Then at that point I intervened, that is, I asked PP that Cleo be excluded from the meeting. Then Cleo was excluded from the meeting. Then I said to PP that she has just dismissed Cleo without following a process. She cannot do that. Then there was an argument about that. But ultimately, we asked PP that we are aware that she no longer wants to work with Cleo, and she must leave this matter with us. We will deal with it, as HR and Legal Services and Chief of Staff. So that was the end of the meeting.

Adv Bawa: Did you know what was the reason why PP no longer wanted to work with her. What had she done that caused that?

Mr Tyelela: Well, I assume that it has to do with Cleo’s work because PP said she's tired of doing Cleo’s work. So she was not specific what actually happened.

Adv Bawa: What was the nature of the disrespect that was indicated to you.

Mr Tyelela: The example PP made in the meeting was that Cleo called her by her first name.

Adv Bawa: Ms Mosana then went home. You then had a meeting with the Acting Chief of Staff, the Head of Legal Services and you indicated to Ms Mosana that the PP no longer wanted to work with her. That you would then consider alternative options within the organisation, correct?

Mr Tyelela: That's correct, yes.

Adv Bawa: You then say that the Acting CEO, Ms Motsitsi, was not prepared to sign off on her contract, because it was quite a huge amount of money that would have to be paid out, correct?

Mr Tyelela: Yes, that is correct. That was one of the options we were looking at.

Adv Bawa: You and the Acting CEO then convened a meeting with Ms Mosana. Can you tell me what transpired at that meeting?

Mr Tyelela: Okay, the purpose of the meeting was to consult Ms Mosana on her transfer, from the position of spokesperson to Communications and Stakeholder Engagement branch. So we were in the Acting CEO’s office. It was myself, the Acting CEO and Ms Mosana. When we were about to start the meeting then the Acting CEO, Ms Motsitsi received a call from PP. She left the meeting for about 30 to 45 minutes. Then when she came back, she just issued a letter that we had prepared, which we were going to issue to Ms Mosana after discussions and consultation. Then she issued the letter and said that 'I've done my part', here's the letter. Then that was the end of the meeting.

Adv Bawa: Ms Mosana was then redeployed to the position, Senior Manager: Communications and Stakeholder Engagement, correct?

Mr Tyelela: That letter was transferring her to that position. The purpose of that meeting was to consult with her on that transfer.

Adv Bawa: But Ms Mosana didn't want to be transferred?

Mr Tyelela: No, she didn't want to.

Adv Bawa: She wanted to remain in the job she was in. She wanted to know precisely why she was being moved, correct?

Mr Tyelela: Yes, that's correct

Adv Bawa: She then declared an unfair labour dispute. She took you to the CCMA. She was then awarded five, six months remuneration, right?

Mr Tyelela: That's correct. Yes.

Adv Bawa: And you recommended that it be paid because it was clearly a demotion or either at the same salary level, correct?

Mr Tyelela: Yes, that is correct.

Adv Bawa: There was then a second labour dispute that arose after this was settled. Where she came back to work, and she then left, and she lodged a dispute of constructive dismissal, correct?

Mr Tyelela: Yes, she came back to work, then she resigned. Then after that she declared a dispute on constructive dismissal.

Adv Bawa: She won the matter at the CCMA, and she was given a further six month salary. On the basis of legal advice and views within the organisation the matter has then taken on review to the Labour Court?

Mr Tyelela: That is correct.

Adv Bawa: Right. It's still pending, isn’t that so, Mr Tyelela?

Mr Tyelela: Yes, it's still pending.

Adv Bawa: Now we come to Mr Ndou. Mr Ndou resigned on 1 November from the position of executive manager, correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: The PP was informed of his resignation on 5 November and accepted it, correct?

Mr Tyelela: That's correct.

Adv Bawa: So effectively, his last working day, it's a 30-day notice period, so his last working day would have been 30 November, correct?

Mr Tyelela: That’s correct. Yes.

Adv Bawa: At the time he resigned, was there any disciplinary charge that had been brought against him?

Mr Tyelela: We were busy drafting charges. That has not been brought to his attention.

Adv Bawa: So had there been charges finalised at that stage?

Mr Tyelela: No. Not yet.

Adv Bawa: So what had transpired was, there were allegations made against him. I’m just going to take you through the chronology quite quickly. There were allegations made against him and pending an investigation he was suspended in April 2017, correct?

Mr Tyelela: That's correct.

Adv Bawa: He resigned from the organisation, I think, let me just work out, some 19 months later, correct?

Mr Tyelela: That's correct. Yes.

Adv Bawa: There was an external law firm that was engaged to investigate the charges, and they recommended that he not be charged.

Mr Tyelela: That's correct. Yes, it exonerated him.

Adv Bawa: And the CEO then informed him accordingly, correct?

Mr Tyelela: That's correct.

Adv Bawa: You have a grievance policy in the organisation and the complainant according to that grievance policy, appealed to the Public Protector in August 2017, correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: So now four months into the process. And what does the grievance policy say? It says that the PP or delegated authority has 10 days to consider and conclude the grievance and communicate the decision. Did that occur?

Mr Tyelela: It did not happen within 10 days, as required by the grievance procedure.

Adv Bawa: In October, which was three months later, the PP sought assistance of the Commission of Gender Equality. They did what is called a perusal or an analysis of the investigation report and an appeal memo. They were charged to do an analysis of the investigation report and the appeal memo and call witnesses, correct?

Mr Tyelela: That's correct. Yes.

Adv Bawa: What did they do? If you look at 91.8, they only looked at the investigation report and the appeal memo, correct?

Mr Tyelela: That's correct.

Adv Bawa: And they, in a letter, informed that there was a prima facie case to be answered and recommended that clause 4.4.2 of the Grievance Policy be followed to finalise the matter.

Mr Tyelela: That is correct.

Adv Bawa: Right. If the complainant was not satisfied, they would need to take it to an external dispute resolution mechanism under the Labour Relations Act, correct?

Mr Tyelela: That is correct.

Adv Bawa: Then you informed Mr Ndou that the matter had been referred to the CGE.

Mr Tyelela: Yes.

Adv Bawa: Can you recall when you did that, Mr Tyelela? Let me ask the question, differently. Mr Tyelela, have you been able to find the letter that you've sent?

Mr Tyelela: No, I’ve not been able to find the letter.

Adv Bawa: To the best of your recollection, can you remember more or less when you sent the letter?

Mr Tyelela: I think it was around October 2017. I’m subject to correction, I can't exactly remember.

Adv Bawa: Okay. In January 2018, nine months later, there is a decision that a formal disciplinary hearing be instituted with an internal chairperson, correct?

Mr Tyelela: That's correct.

Adv Bawa: And this was relayed to the complainant a few days later, who was unhappy with the appointment of the internal chairperson, correct?

Mr Tyelela: Yes.

Adv Bawa: What was your view at that stage?

Mr Tyelela: When we got the response from the outcome of the CGE investigation, they said the employee had a case to answer and then PP in her submission indicated that process must be instituted, indicating that it must be done internally, that is, the chairperson and the prosecutor must be internal. Then the complainant was informed about that decision. She was not happy because she was saying that the accused employee was a senior executive. She was not comfortable with that. She thought it would not be fair that this be done internally. She then appealed to PP that this must be dealt with externally, not internally.

Adv Bawa: Continue Mr Tyelela.

Mr Tyelela: As HR, we took it as she was not in agreement of PP’s decision. So our view was that she wanted PP to change or to review her decision. Then we advised that, well, if she's not happy with PP’s decision, then the matter has been exhausted internally, then she can utilise external as a request.

Adv Bawa: Okay, it was then in March 2018 that the PP reiterated that the formal disciplinary proceedings should be instituted, correct?

Mr Tyelela: That's correct.

Adv Bawa: Did you inform Mr Ndou at that stage about it?

Mr Tyelela: No, I don't remember doing that.

Adv Bawa: And then five months later, the PP appointed a member of the Public Service Commission as an employer representative to finalise the charge sheet and present evidence, correct?

Mr Tyelela: That's correct.

Adv Bawa: Then by 14 November that Public Service Commission representative indicated the charges were not yet finalised, correct?

Mr Tyelela: That’s correct.

Adv Bawa: It was then indicated that his charges would be ready by 23 November, and that the hearing should be convened effectively a few days before his notice period would be completed. In fact, what then transpired was that the charges were completed earlier. They were served to Mr Ndou on 16 November, correct?

Mr Tyelela: That is correct. Yes.

Adv Bawa: But the disciplinary proceedings didn't occur because Mr Ndou was on sick leave at the time. It was postponed and never came to fruition, correct?

Mr Tyelela: That's correct because he left the organisation.

Adv Bawa: Do you have any documentation or knowledge or any documentation under your control that reflect Mr Ndou had been informed prior to his resignation, that the charges would be preferred against him?

Mr Tyelela: No.

Adv Bawa: The Committee had evidence from Mr Kekana and his matter is still pending before the Labour Court. There are two issues that I want to clear up with you. When the PP travels, whether she does that with the CEO or without the CEO, is the staff informed of those travels?

Mr Tyelela: Yes, the communications unit does send to all staff saying that PP and these people will be attending this event, on this date and this place. Yes, that happens.

Adv Bawa: So that information is not confidential?

Mr Tyelela: No.

Adv Bawa: If I take you to paragraph 37 of the affidavit of Mr Kekana, he mentions you in that affidavit. He was moved at the end of November. He says that at the end of November 2017, you had a meeting with him. Is that correct?

Mr Tyelela: That's correct.

Adv Bawa: Yes. And he was informed that Adv Mkhwebane no longer wanted him to work in the Private Office. Did you tell him that?

Mr Tyelela: Yes.

Adv Bawa: He then says when I asked for reasons for this decision, I was told that it was because Adv Mkhwebane was of the opinion that I say too much to the lawyers representing the Public Protector in the review proceedings. Did you indicate such to him?

Mr Tyelela: Yes, that is what PP said to me when she told me that he should be moved from the Private Office.

Adv Bawa: Okay, let me take you to the next person, which is Ms Basani Baloyi. I’m going to go through it briefly. Ms Basani Baloyi, was there any complaints? I’m going to paragraph 98 of your affidavit. Was there any complaints ever raised with you about her employment?

Mr Tyelela: No.

Adv Bawa: To who did she answer?

Mr Tyelela: Functionally to PP and administratively to CEO.

Adv Bawa: Okay. Were you provided with any performance assessments in her HR file?

Mr Tyelela: No.

Adv Bawa: Are you aware of any having been conducted before her service has been terminated?

Mr Tyelela: No, I’m not aware.

Adv Bawa: How did you find out that – you say in 99 that Mr Mahlangu called you and informed you that he would not confirm Ms Baloyi’s appointment?

Mr Tyelela: That's correct.

Adv Bawa: Can you relay the conversation you had with him?

Mr Tyelela: When he informed me about that I was surprised because I was made to believe that Ms Baloyi was a good employee. And I was made aware that PP commended her in her meetings several times. It took me by surprise that Mr Mahlangu was not confirming her appointment. Then the other thing which I wrestled with, with Mr Mahlangu was that Ms Baloyi in as far as Investigation is concerned, is not reporting to Mr Mahlangu. I did not understand how Mr Mahlangu could make such a decision because she who was not reporting to him, that is, on her work on special investigations.

Adv Bawa: You indicated that he was.

Mr Tyelela: I raised those concerns with Mr Mahlangu when he informed me about not confirming her appointment.

Adv Bawa: You indicate in your affidavit that her being a good employee was not the only determination, but there were other things. Can you elaborate – did Mr Mahlangu elaborate on what those other things were?

Mr Tyelela: No, he did not say because I asked. As I said, I could not understand why her employment was terminated because I believed that she was good employee. Then he said no, there are other… they are not only looking at that. There are other things. Then I asked what other things? Then he did not tell me what other things he has looked into.

Adv Bawa: In respect of Adv Matlawe, were the charges against him the same as the charges that were brought against Mr Kekana?

Mr Tyelela: No, they were different.

Adv Bawa: Can you tell us what they were?

Mr Tyelela: Mr Matlawe attended a meeting in Bloemfontein, which was addressed by the CEO with our Bloemfontein provincial office, with staff in Bloemfontein. Then he raised issues in that meeting, which were not correct. That is where the charges of Mr Matlawe emanated from.

Adv Bawa: What do you mean he raised issues that wasn't correct? Who raised issues? Mr Matlawe or the CEO?

Mr Tyelela: Mr Matlawe in the meeting, in the CEO’s meeting with staff.

Adv Bawa: So who raised issues that were incorrect?

Mr Tyelela: It was Mr Matlawe.

Adv Bawa: Mr Matlawe raised the issues? No wait, wait. Sorry, Mr Tyelela. Let me just take you back. There was a meeting that the CEO addressed employees at the Bloemfontein office, and he relayed certain information to them, correct?

Mr Tyelela: Yes.

Adv Bawa: What did Mr Matlawe do that resulted in being charged?

Mr Tyelela: The issue Mr Matlawe raised in the meeting was related, for example, to the Special Advisor and then the organogram that was not consulted in the forum.

Adv Bawa: Okay. You were not involved with this directly, were you?

Mr Tyelela: No, was not. I was not in the meeting.

Adv Bawa: Now was Mr Mahlangu informed of the resignation of Adv Matlawe?

Mr Tyelela: Yes, he was informed.

Adv Bawa: How was he informed thereof?

Mr Tyelela: Okay, when a staff member resigns or leaves the organisation, a submission is made to the CEO or the PP, depending on the level of the employee. In this case, the submission was made to Mr Mahlangu, informing Mr Mahlangu that Mr Matlawe had tendered his resignation.

Adv Bawa: Right. That resignation is at GT14 of your affidavit.

Mr Tyelela: Yes.

Adv Bawa: At 3460. On 30 November, you sent Mr Mahlangu a notification that he had resigned, correct?

Mr Tyelela: That’s correct.

Adv Bawa: If you look at 3463. There’s something written there. Can you read it, Mr Tyelela?

Mr Tyelela: I’ll try. HR, please note that I once requested meeting with Matlawe on 26 November 2018, and I was told he was at court. Can I please have proof of leave form?

Adv Bawa: Now who wrote that, Mr Tyelela? Whose handwriting is that?

Mr Tyelela: It's Mr Mahlangu’s writing.

Adv Bawa: The disciplinary proceedings against Mr Matlawe commenced and was set down for 21 December, correct?

Mr Tyelela: That's correct.

Adv Bawa: On whose instructions was that done?

Mr Tyelela: Mr Mahlangu.

Adv Bawa: If we go to the next three persons, Ms Mogaladi, Ms Sekele, Mr Madiba. It was Mr Mahlangu’s decision to institute disciplinary proceedings against them in October 2019, correct?

Mr Tyelela: That's correct. Yes.

Adv Bawa: And they were asked to make representations on the intended disciplinary action.

Mr Tyelela: That's correct.

Adv Bawa: Did they do so?

Mr Tyelela: Yes, they did.

Adv Bawa: And there was no mention of a suspension in the letter, correct?

Mr Tyelela: That's correct. Yes.

Adv Bawa: There was then a to-ing and fro-ing. They were then charged. Eventually the disciplinary proceedings took place, and in fact, it was split between Ms Mogaladi and Ms Sekele on the one hand, and Mr Madiba on the other, correct?

Mr Tyelela: That's correct. Yes.

Adv Bawa: Now the PPSA lead the evidence of two witnesses, Ms Carina van Eeden. Who’s that Mr Tyelela?

Mr Tyelela: She's one of our senior investigators.

Adv Bawa: Now, she reported to Ms Mogaladi, correct?

Mr Tyelela: That's correct. Yes.

Adv Bawa: It was suggested by the CEO in evidence. I recall asking him the question as to why disciplinary proceedings was not taken against Ms van Eeden in the matter. And he indicated that her line management should have done that. If disciplinary proceedings were taken against the line managers, could they in turn take disciplinary proceedings against persons who reported to them?

Mr Tyelela: That would be difficult.

Adv Bawa: They were then found guilty of charges and the chairperson made a recommendation of a sanction, of a suspension without pay for a period of three months, coupled with a final warning for Ms Mogaladi, and for Ms Sekele, two months with a written warning. You say that the PP was not in agreement with the outcome of the disciplinary process. Could you explain that?

Mr Tyelela: Yes, the PP said considering the seriousness of the charges and the ruling of the chairperson of the disciplinary hearing, she felt that the sanction was not appropriate.

Adv Bawa: What did she want to do?

Mr Tyelela: Well, we discussed it and then they were given, they were asked to make representations as to why they should not be dismissed.

Adv Bawa: There was then urgent application. They were brought back to work and there was a review pending on the part of the PPSA at the Labour Court, correct?

Mr Tyelela: Correct. That's correct.

Adv Bawa: Of the disciplinary chairperson’s decision?

Mr Tyelela: Yes.

Adv Bawa: Now if we turn to Mr Nyembe. He was initially appointed as a Special Advisor for a period of three months on a fixed-term contract.

Mr Tyelela: That’s correct.

Adv Bawa: The Special Advisor is appointed at the behest of the Public Protector, correct?

Mr Tyelela: I’m not sure what you mean by that?

Adv Bawa: There's no advertising for a Special Advisor, and a panel and an appointment?

Mr Tyelela: Yes, that is correct.

Adv Bawa: What happened when the three-month period ended?

Mr Tyelela: Then the contract came to an end.

Adv Bawa: Okay, and Mr Nyembe left the Public Protector’s Office after the three months?

Mr Tyelela: That's correct. Yes.

Adv Bawa: There was then an issue raised. I think it emerged, if I remember correctly, in the media about the Acting Chief of Staff not having the appropriate qualifications. Do you recall that, Mr Tyelela?

Mr Tyelela: Yes, I do recall that.

Adv Bawa: Was it correct?

Mr Tyelela: What was correct?

Adv Bawa: Did she have the qualifications for the position of Acting Chief of Staff?

Mr Tyelela: No, she did not have.

Adv Bawa: She was moved from Customer Services to be Acting Chief of Staff. And how long was she in that position?

Mr Tyelela: For plus minus a year. I can’t remember the exact period.

Adv Bawa: This was one of the issues that had been raised by Adv Matlawe, correct?

Mr Tyelela: That's correct. Yes.

Adv Bawa: Now, the post of Chief of Staff was then advertised.

Mr Tyelela: That's correct.

Adv Bawa: Mr Nyembe then applied, he was interviewed, and he got the job, correct?

Mr Tyelela: That's correct. Yes.

Adv Bawa: Now if we come to Mr Samuel. This issue related, inter alia, initially to an assault that took place in 2011, correct?

Mr Tyelela: That’s correct.

Adv Bawa: Let’s deal with the assault first. When did this come to your attention for the first time?

Mr Tyelela: Towards the end of 2017, when we received a claim from the complainant, who claimed an amount of R350 000, because he was assaulted by a PPSA official.

Adv Bawa: There was no mention of this in his HR file, correct?

Mr Tyelela: There wasn't, yes.

Adv Bawa: And you were not employed in 2011 so you didn't have any knowledge of that?

Mr Tyelela: No, I did not have any knowledge.

Adv Bawa: I want to put the proposition to you Mr Tyelela. If in 2011 the matter had been investigated by the CEO at all, if they had gone off and they did an investigation in Limpopo, and they found that Mr Samuel had indeed been attacked, and he was only defending himself – would there have been a basis for him to be charged in 2017 at all?

Mr Tyelela: No.

Adv Bawa: Now you're not aware whether CEO Mahlangu had made any contact with Mr Mthethwa, who was CEO at the PPSA when this assault occurred?

Mr Tyelela: No, I'm not aware of any contact that he made.

Adv Bawa: Right. You sent Ms Manyike to go and talk to the employees at Limpopo, but there were no witnesses that could exonerate him or implicate him, correct? They had all arrived on the scene only after the altercation had already started.

Mr Tyelela: That's correct.

Adv Bawa: Now you then say what had informed the decision was that he had paid an admission of guilt fine, correct?

Mr Tyelela: That's correct. Yes.

Adv Bawa: Had he at the time told you that he did that to avoid imprisonment? And that he was appealing both the conviction and the sentence?

Mr Tyelela: Yes, he did inform me about that.

Adv Bawa: And the decision to institute disciplinary action, was that taken by the CEO Mr Mahlangu?

Mr Tyelela: Yes.

Adv Bawa: Mr Tyelela, you were not able to tell me when I spoke to you as to when that decision was taken. Have you been able to find anything subsequently thereto that you could tell us?

Mr Tyelela: Yes, I did find a submission that went to PP that was on the matter from HR, that is on the matter where we were suggesting, we were recommending that…

Adv Bawa: Sorry. Continue, I think there was an interruption.

Mr Tyelela: Okay. There was a submission that went to PP in February 2018 where we were advising that we should wait for the court process to be finalised. We should wait for that. We should not charge Mr Samuel, we should wait for the appeal. Then PP did not agree with that. She said that the disciplinary process should proceed.

Adv Bawa: Mr Tyelela, I don't have that. In fact, you didn't have that yesterday when I spoke to you, correct?

Mr Tyelela: Yes.

Adv Bawa: Before I'm accused of it. Could we arrange for you to forward that to Mr Thembinkosi Ngoma so that we can have a look at it. To do that, I'm going to leave that off. Do you then know what happened after February 2018?

Mr Tyelela: There were a number of legal advices that were sought. The first one was internal. Then the second one was from the firm of attorneys external and then the third one was also external from the senior counsel.

Adv Bawa: What was the upshot of all of that?

Mr Tyelela: The first one from internal and second one from the attorneys, were saying we should not proceed with the disciplinary process because the matter is old. And we did not have justifiable reasons why it took so long, that is, to deal with. Then the third one from the senior counsel was saying we can proceed with the matter, but we must have reasons why it took so long, that is, for us to take disciplinary action.

Adv Bawa: What was your concerns?

Mr Tyelela: My concern was that, and this happened in 2011, this was 2018. So the delay was unreasonable. And we did not have to justifiable reasons to explain to whoever asks why was there a delay. That was the concern, but at the same time, we were also concerned about the nature of the alleged, that is, a transgression. It was a serious matter. So we were aware that there were those two issues. That it was a very old matter, we felt that we should not proceed, but at the same time that it was a serious transgression which we felt could not be left unattended.

Adv Bawa: Do you know how it came about that he only gets charged on this in February 2020? Or is it March? Sorry, I must get the exact date. His evidence before the Committee was that he was only charged after he had made a submission or provided an affidavit to Parliament and that had come out in the media. Then he was charged on those charges and the assault charge together with that.

Mr Tyelela: Yes, as I say there was a lot of discussion. When we became aware of the matter there were several legal advices that were sought. The initial charge of Mr Samuel was only on this, that is, Limpopo matter. But before that charge was issued, then these other things happened. Then they were added to that charge.

Adv Bawa: Okay. There is this question of annual leave which is dealt with in 120. You say that annual leave effectively in 2021 was cancelled until the backlog project had been finalised, correct?

Mr Tyelela: That's correct.

Adv Bawa: That meant or there's currently a process underway to pay people out for the leave that they were not permitted to take.

Mr Tyelela: That's correct.

Adv Bawa: You know that there is a panel of attorneys that has been appointed. Are you involved in that process at all?

Mr Tyelela: No, I'm not involved.

Adv Bawa: You have since 2021, again, embarked on a wellness project to assist employees with challenges, correct?

Mr Tyelela: That's correct. Yes.

Adv Bawa. Thank you, Chair. Those are my questions.

Chairperson: Thank you, Adv Bawa. It's now 34 minutes before one. We're going to take this opportunity to invite Adv Mpofu and hand over to him for the beginning of cross-examination. Adv Mpofu, I recognise you.

Cross-examination by Adv Mpofu

Adv Mpofu: Thank you, Chairperson. Chair, can I make a request? I'm going to try to do this as quickly as possible, but I'll probably give you an indication at about one o'clock. If I think that I can finish as quickly as I think I might. Can I then ask that we go on straight through to about half past one? So that when we break, we don't have to come back unless there is another witness. I suppose that there might be questions from the Members but can we. Alright, I’ll indicate at one o'clock either way. Thank you.

Chairperson: That is in order. Okay, let's see.

Adv Mpofu: Thank you, Chair. Good afternoon, Mr Tyelela.

Mr Tyelela: Good afternoon, Adv Mpofu.

Adv Mpofu: Alright. I’m going to try and give you where I can lead in questions. And I hope you'll just give me, that's correct or that's not correct, and all that. Just as you've been doing with Adv Bawa. That's what gave me the optimism that we might move fast. But sometimes, these things change. Okay, so can we try that?

Mr Tyelela: Yes.

Adv Mpofu: Okay. Thank you, Mr Tyelela. Chairperson, before I address the witness, can I just raise two unrelated issues very quickly with you?

Chairperson: Go ahead, Adv Mpofu.

Adv Mpofu: Thank you, Chair. I just forgot in the morning when I was talking about housekeeping issues not related to this witness. One was to place on record, I think you indicated this in your introduction but without elaborating. Place on record that we, myself and Adv Shabalala, are in Johannesburg and linking via Zoom. The Public Protector and Adv Matlhape are attending personally in your Committee in Cape Town. Just to explain the reason for that Chair is related to the discussion you and I were having this morning. We are trying as much as possible to tackle the issue of collecting evidence from witnesses. So we decided to split the team. We have half of the team dealing with witnesses who are based here in Gauteng and other part of the team dealing with witnesses who are presently in Cape Town. That's the only reason otherwise, we are able to manage the situation by WhatsApp or consulting during the breaks. We just wanted to place that on the record.

Chairperson: Thank you. I thought you were in Rustenburg, so you are in Johannesburg now.

Adv Mpofu: Don’t go there, Chairperson. No, thank you, Chair. Yes, the other one is probably on a lighter note, like the one you've just raised. In the morning when we were talking about the advice from the legal advisors of the Parliament, I said that you were preaching to the converted. I didn't explain that comment. I just wanted to say that I accept, as you probably know, that when there's a body that is advising, the one that is making the decision is not bound by it. I accept that your Committee was not bound by the advisor’s advice. And I'll leave it there. I think you know, where that one is going as well.

Chairperson: As the Committee was not bound by the Independent Panel report.

Adv Mpofu: Well, except that it means the Panel report was not advisory. It was a very serious matter that had judges.

Chairperson: Go ahead, let me not disturb you. Please proceed. Go ahead.

Adv Mpofu: Otherwise, it was a waste of money. But that one we’ll resolve in another forum. Okay, thank you. Mr Tyelela, back to you. You heard the discussion I had with the Chair at the beginning about the relevance of your evidence. Our view is really that we are completely at sea as to why you have been called. But since you are here, I'm going to ask you a few questions just for your assistance. Do you accept that?

Mr Tyelela: Yes, that's fine.

Adv Mpofu: Thank you. Because we don't want, this Committee is now at the risk of turning itself into the HR department of the PPSA or some CCMA agency or the Labour Court. But I don't think that's the intention. So you accept that the policies that you have listed there would be ordinary run of the mill policies in an institution such as PPSA, correct?

Mr Tyelela: That's correct.

Adv Mpofu: If I understand your evidence correctly, really, you've just given us this morning, you know, what normally happens in an organisation of this size. There will always be some HR issues. Some might be resolved internally; others might go to the CCMA; others might go to the Labour Court. That's the nature of the business, isn't it?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Okay. Incidentally, how many employees in total does PPSA employ, roughly?

Mr Tyelela: Plus minus 350.

Adv Mpofu: So it's quite a… would call it a middle-sized to large employer, correct?

Mr Tyelela: Yes.

Adv Mpofu: Now in the policies that you have put at paragraph five, I think you've just forgot one, or at least one that we are aware of. There might have been another one. If you agree, we'll just ask if the Members can insert it as 5.19. That would be the security policy, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Yes. The only reason I'm raising that is because it's one of the policies that has been raised in this Committee, in a different context. That's the one that contains the requirements for security clearances, correct?

Mr Tyelela: Correct.

Adv Mpofu: And vetting and that kind of thing, correct?

Mr Tyelela: Correct, yes.

Adv Mpofu: Okay. There's just one thing that I would like you to assist us with, because it's been a bit fuzzy and not properly explained. Are you familiar with the PFMA, by any chance?

Mr Tyelela: Yes.

Adv Mpofu: Okay. If you can't, again, I'm just taking advantage of you. You are not here as an expert on the PFMA, but if you can’t assist just say so. But would you agree that although the Public Protector is referred to as the executive authority, correctly, but strictly speaking, if you look at the PFMA, because the Public Protector is a unique entity that in actual fact, the role almost straddles between the executive authority but also as accounting authority. You would know, for example, in an entity, an SOE, the accounting authority would be a board in terms of the PFMA, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Yes. So would you agree with my categorization that there is a little bit, there's always an overlap, for example, between the CEO, the Chair and the Minister and all that. But would you agree with my characterization that although strictly speaking she's the executive authority, but she also carries out some of the functions that ordinarily are carried out by the accounting authority, namely, a board, for example?

Mr Tyelela: Accounting authority not the accounting officer, the CEO.

Adv Mpofu: No, certainly not. No, just to be clear. There's the accounting officer that's the CEO. That's clear. Then in a normal PFMA company, then there's the accounting authority. That's the board. Then there’s the executive authority, usually the Minister. I'm simply saying in this example, the PP’s role can be likened to that of the Minister insofar as she's the executive authority. But because there's no board at PPSA, the CEO basically also reports to her as if she was the board. Agreed?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Okay. Thank you. We'll canvass that when we deal with the PP herself, okay, thank you very much. I just wanted to clarify that. Then the relationship between you as part of management and the PP is also that she, there are certain things, I think you've explained this, which might end with the CEO, but there are others which you might want to escalate to the PP, which you would do so if there was a board, correct, in a normal company?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Thank you very much. And maybe let's just get rid of what I regard as the only issue on which your evidence might be of any marginal relevance. You have confirmed that when we talk about legal fees that includes both the issues to do with reviews, as well as what Ms Bawa called the labour-related legal issues, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Then are you a numbers man or are you one of these people who don't like reading numbers?

Mr Tyelela: I don't like reading numbers.

Adv Mpofu: Okay, fine then I won’t overburden you with the annual financial statements. But generally, then, are you aware, you may or may not be, that as far as the annual report is concerned, under the item called Consulting Fees, that has embedded legal fees as well?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Yes. The legal fees. I'm sorry, Chairperson. But somebody has just fallen off a chair.

Chairperson: Is someone disturbing you there?

Adv Mpofu: No, someone just fell off the chair, literally. But I don't have to use my pen fortunately.

Chairperson: Now, okay. We could not see it, but we could see that it's disturbing.

Adv Mpofu: Thank you very much. Thank you, Chair. I was saying, Mr Tyelela, that item also includes the Consulting Fees item in the AFS, includes other consultants of whatever nature that might be hired at PPSA, correct? In other words, it doesn't only include the external consultants that are legal in nature. To your knowledge, if you don't know you don’t know.

Mr Tyelela: Can you repeat that? You broke.

Adv Mpofu: Okay. You and I have agreed that the item called Consulting Fees in the annual financial statements includes both what Ms Bawa would call, the review-related legal costs, but also the labour-law related costs, right. Now I'm saying it goes further than that. It also includes consulting fees which are not even legal in nature, that item in the annual financial statements.

Mr Tyelela: I'm not sure about that.

Adv Mpofu: That's fine. Well, let's leave that. But okay, I can then make the point more narrowly than I intended to, which is this, because Mr Samuel wanted us to believe that.

Chairperson: Sorry, Adv Mpofu. Just trying to follow you. Is Mr Tyelela saying he’s note sure if it involves includes legal fees, because you would have responded earlier and said yes?

Adv Mpofu: No, Chair. I’m sorry. I'm sure the confusion is caused by the disturbance that happened. My understanding, and Mr Tyelela will confirm, is that he agrees that the item Consulting Fees includes legal fees. Okay. He also agrees that that item of legal fees can be split into two namely, review-related legal fees and labour-law related legal fees and I suppose, any other legal fees.

Chairperson: That’s fine, thank you.

Adv Mpofu: So the only issue Mr Tyelela was not able to assist us with are the other items which are not legal at all, which are embedded. Other consultancy fees which are which are embedded in that item. Am I right, Mr Tyelela? Is my summary Correct? Mr Tyelela?

Mr Tyelela: That is correct. Yes.

Adv Mpofu: Thank you. Thank you very much. Thank you, Chair.

Chairperson: Thank you, Adv Mpofu. I follow you now. Thank you.

Adv Mpofu: Alright. Now I was then saying, I'm going to ask you then that question more narrowly than I intended. It is this, because Mr Samuel gave the impression to the Committee that any movement in that item of Consulting Fees, only has to do with what he called so-called reckless litigation related to the review matters. Surely, even if you are not a numbers man, you’d know that that must be incorrect, because the movement in that item may be influenced, for example, by movement upwards or downwards in the labour-law related legal costs, agreed?

Mr Tyelela: That's correct. It could be any of those that are in that budget item.

Adv Mpofu: Yes. Or any other item, which I know you cannot confirm, that might be embedded in the rubric of Consulting Fees, correct?

Mr Tyelela: If those items are part of that, as I say, I can't confirm that.

Adv Mpofu: Sure. But if they are, then movement in them will also influence the total, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Thank you very much. Okay, that's fine. Then we came to the issue of audi letters, you can assist us there as well. Again, this has been for lack of a better word weaponized in my view, in a negative way. But I see this as a good thing. As an HR person, would you agree that it is good practice to give somebody an opportunity to explain any possible allegations that might be levelled against them?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: In fact, as the name implies ‘audi’ means hear the other side. It's an opportunity for the employee to be heard, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: As you said, if the explanation is adequate, that's usually the end of the matter.

Mr Tyelela: That's correct.

Adv Mpofu: It would be ludicrous, to put it mildly, if you had the statistics at your level of every time some line manager gives their subordinates an audi letter, because that happens all the time. I mean these are conversations that take place across the whole country at any given time, correct?

Mr Tyelela: Yes, that is a line management function.

Adv Mpofu: Yes. If I'm sitting in the Mpumalanga office and one of the people who are working with me doesn't perform or doesn't come to work or comes to work drunk or whatever, I might give them an audi letter. I don't have to then report that to head office, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: The only time it will come to head office is if, let's say, they don't give an adequate explanation, and maybe it's serious enough, and then they now have to be charged, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Thank you. In fact, in respect of one of the witnesses, we likened this to a warning letter, but it's actually not even a warning letter. It's prior to a warning letter, correct?

Mr Tyelela: Yes. Correct. Its prior.

Adv Mpofu: Yes. It's merely an opportunity to respond, which may or may not be followed by a warning letter, depending on the content of the response, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: And I would say that, well, I think it's a commendable practice, some employers may not have that kind of practice. So you'd agree then, the process in a nutshell, is that. Let's now say your responses to the audi letter is not adequate. So you'd have the audi letter as step one, correct?

Mr Tyelela: Correct.

Adv Mpofu: And then you'd then have the first verbal warning, correct?

Mr Tyelela: Correct.

Adv Mpofu: And then you'd have a written warning maybe, depending on the nature of the offence, correct?

Mr Tyelela: Correct.

Adv Mpofu: And then the matter would be escalated to, or rather a decision to charge you would be made and then it would be sent. Or rather, which one happens first? Is it first sent to the external investigators? Or is the decision to charge made? Which follows which?

Mr Tyelela: The investigation can both be internal or external. It does not have to be external. So normally.

Adv Mpofu: Fair enough. Which one precedes which?

Mr Tyelela: It's the investigation first which will confirm whether the allegations are substantiated or not.

Adv Mpofu: Good. Okay, so then step four or five in my sequence will then be the investigation. Let's not qualify it, whether it's external or internal. So there'll be the investigation, and then let's say, they'll be the decision to charge. Let's assume the investigation says there's enough wrongdoing, correct?

Mr Tyelela: Correct.

Adv Mpofu: Thank you. Then once that decision is made, again, depending on the seniority of the person or the seriousness of the charge, then it would be referred to an external person to chair the DC. Whether it's an advocate or an attorney or somebody like that. Or let me put it like this, again, that may be external or internal, let's just say a chairperson would be appointed, correct?

Mr Tyelela: Yes. Correct.

Adv Mpofu: Okay. And only then is step seven in that chain. If you are found guilty by that chairperson, then whatever happens will happen. Correct?

Mr Tyelela: Yes.

Adv Mpofu: This is just in relation to the case of Ms Mogaladi and the other persons. As an HR person, you know, that once again we'll go back to this issue of whether a recommendation is binding or not binding. So the external chairperson cannot fire anyone. They only make a recommendation, correct?

Mr Tyelela: That was the issue with our disciplinary hearing because our disciplinary hearing says that he makes a final decision, which must be implemented.

Adv Mpofu: Yes. Rather, the code?

Mr Tyelela: The code, yes.

Adv Mpofu: Right. But in the case of these two ladies and one gentleman, I think, has since deceased. The chairperson had explicitly said that he was making a recommendation, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Yes, and as you know, or should know, well, everyone should know. A recommendation in those terms, then eventually depends on the actual decision maker to approve or disapprove, correct?

Mr Tyelela: That's correct.

Adv Mpofu: Thank you. And, of course, they can't just say, we don’t approve or disapprove. There must be a reasonable basis. They have to have to give reasons, correct?

Mr Tyelela: That’s correct. Yes.

Adv Mpofu: In this case, according to you, the reasons that the Public Protector had made for not accepting or rejecting the recommendation was, you said, the seriousness of the charges. You didn't mention this one, but I'm asking you just from your memory. There was also the issue of the breakdown in the relationship, correct?

Mr Tyelela: Okay, I can't remember that one.

Adv Mpofu: Can’t remember the second one? That's fine. That's fine. The documents will show. But in any event, the point is that the Public Protector gave her reasons why she was not accepting the recommendation, correct?

Mr Tyelela: Yes, except that our code did not make provision for that.

Adv Mpofu: No, that’s not what I'm asking you. Did the Public Protector give her reasons for not accepting the recommendation?

Mr Tyelela: She actually did.

Adv Mpofu: Yes. Your code, we know what it says. I think it's part of the documentation. But you and I, well, I thought we have agreed that despite the code the chairperson in that particular case, had specifically couched his, I think it was a man, his finding as a recommendation, correct?

Mr Tyelela: That's correct. Yes.

Chairperson: Adv Mpofu, maybe before you look for the next questions, can we pause there and take a lunch break? We should be back at two.

[Break]

Chairperson: I want to hand over to you, Adv Mpofu, if you’re there.

Adv Mpofu: Thank you, Chair. Yes I’m here.

Chairperson: Please proceed, Adv Mpofu.

Adv Mpofu: Thank you, Chair. And I'm indebted to apologise for anyone that had to rush their lunch. Mr Tyelela. Okay, you know, what I've decided to do is we were talking about this matter of Mogaladi and others. I'm going to leave that matter if you don't mind. I want to deal with that matter of Samuel. I'll deal with them last because I've got a few questions on those. I want us to get rid of the other irrelevant matters or just clarity on them. Okay, if then we can go back to the… just to run off the issue of audi. Am I correct that what actually happened to the matter of… I don't know the name of the person. I don't think you gave us the name. Do you remember you testified about the PP having asked you to do an audi letter in respect of somebody's possible insubordination?

Mr Tyelela: That's correct.

Adv Mpofu: Okay. You don't remember the name of that person? I don't think you gave us the name.

Mr Tyelela: Yes, then I did not give the name, but I know the name of the person.

Adv Mpofu: Okay. No, then you don't have to give it. That’s for their confidentiality. It's not important. Okay. But so basically, in that case, once you informed the PP that it was being taken care of, at the level of line management, that was it. She didn't take it further, correct?

Mr Tyelela: No, she just said that they were slow and then that was the end of it.

Adv Mpofu: Yes, no, apart from complaining about the pace of the thing, but she didn't take any formal steps, correct?

Mr Tyelela: I'm not aware of any other steps that were taken.

Adv Mpofu: And again, I think it goes back to what you and I discussed first about the PP, effectively, also almost playing the role of an accounting authority. As an HR person, you would accept that there's nothing stopping the PP, if she is affected by a particular labour… alleged labour misconduct, like anyone else, she can then basically complain and ask for steps to be taken, correct?

Mr Tyelela: I guess so. Yeah.

Adv Mpofu: Yes, well, why do you guess so? You should know so. I mean, if I if, let's say, I'm the chairperson of a board, and some employee comes to insult me. I obviously can't do anything because I'm not a manager. But that doesn't stop me from complaining and then the management must do what management has to do, correct?

Mr Tyelela: Well, the right thing would be to refer it to the line managers of that employee to deal with it.

Adv Mpofu: Yes, but that's, that's exactly what I'm saying. Okay, let's make it easier for you. If I was a minister in a department and an employee somewhere, on the third floor, insults me or does something. There’s nothing I can do but I refer it to the DG or the line manager of that person, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Then also there was a reference you made to another example where the PP wanted an external, or rather an internal investigator and you as HR felt that it should be an external person because the person was senior, correct?

Mr Tyelela: No, it was not HR who wanted that. It was the complainant. Yes. It was the complainant who felt that the disciplinary hearing must be handled by external people.

Adv Mpofu: Oh, I see because she felt that she was senior.

Mr Tyelela: Yes.

Adv Mpofu: Okay. Now again, okay. The gist of my question is the following. In that case, the Public Protector basically relented because eventually someone from the Public Service Commission was appointed, correct?

Mr Tyelela: That's correct. The employer rep was external. The chairperson was internal.

Adv Mpofu: Now, as far as Mr Neshunzhi is concerned, there's nothing really; you confirmed that actually, he was promoted in the long run, correct?

Mr Tyelela: As far as salary is concerned.

Adv Mpofu: Yes. Okay. No, he confirmed that himself as well. Alright. Then, this thing about Mr Malunga. I don't know what it has anything to do with…but since it was raised – at least with the motion before this Committee – but since it was raised, I just want to ask you a few things. You confirm that Mr Malunga was… Okay, firstly, you are familiar with the Public Protector Act, correct?

Mr Tyelela: Yes, I am.

Adv Mpofu: And you know that the role of the Deputy Public Protector is confined specifically to whatever is delegated by the Public Protector, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: You are aware that, Mr Malunga in particular now, when he was being interviewed by Parliament, the issue of his security clearance arose, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Some of the Hon Members felt that he should not or rather he would not be suitable for the position because of that issue, correct?

Mr Tyelela: No, I'm not. I can't remember that.

Adv Mpofu: Okay. In what context, do you remember it being raised in Parliament?

Mr Tyelela: That there was an issue of him not getting his security clearance.

Adv Mpofu: Right. And so what?

Mr Tyelela: No, I don't remember whether there was a decision to that effect. I'm just aware that there was a discussion to that effect. I don't know whether that then disqualifies him from appointment or not. I'm not aware of that. I can't remember that.

Adv Mpofu: No, that's fine. I think maybe you misunderstood my question. No, I didn't say there was any decision. I understand. I'm saying, were you aware that that matter was raised in Parliament, in the context by those who are raising it, rightly or wrongly, in the context that it would basically render him unsuitable for the position? I'm not saying that position prevailed, or it was a decision of Parliament. I'm just saying, that's the context in which it was raised. Do you know that much?

Mr Tyelela: Yes.

Adv Mpofu: Okay, good. Thank you. All right. Now and those who felt that, rightly or wrongly, again, that he would be unsuitable felt that it would be a risk to the organisation to have someone at that level without a security clearance, correct?

Mr Tyelela: Yes.

Adv Mpofu: Right. In fact, you may or may not know this, the Public Protector was confronted about this when she came to Parliament, correct?

Mr Tyelela: I'm not aware.

Adv Mpofu: Okay. That's fine. She'll testify to that. Then you probably are not aware that she even wrote to the Speaker to say, you know, what she must do to manage that risk. The Speaker basically said, well, it's your baby, that the Public Protector must find a way of managing the risk. I'm paraphrasing. You may not be aware of that, are you?

Mr Tyelela: No, I’m not aware of that.

Adv Mpofu: Okay. Yes, but you do accept that, as a matter of just as a general statement and knowing the policies as you do. That the higher you go in the organisation, the more serious the need for security clearance. In other words, because the higher you go, obviously, you may handle more sensitive investigations, correct?

Mr Tyelela: That's correct.

Adv Mpofu: And, therefore, anyway, that's fine. I think it will be unfair to put this to you. Be that as it may, the Public Protector was then, you know, in a fix, because it was either she assigns sensitive investigations to the person or not. But either way, it was within her power, in terms of the statutes to delegate whatever powers she wanted to delegate to the person, correct?

Mr Tyelela: Yes, it's her decision to delegate. To decide what to delegate to the Deputy Public Protector.

Adv Mpofu: And the extent of that delegation.

Mr Tyelela: Yes.

Adv Mpofu: Okay, good. But just as a matter of interest, being an HR person, I was just surprised by something, because, you know, that HR is always looked down upon in management circles, correct? As if it's like a, you know, an easy job, not like those that scientific or operational. That's just in every organisation. Do you know about that, generally?

Mr Tyelela: I've heard about it.

Adv Mpofu: Yes. Okay. And so I'm sure you don't share that sentiment?

Mr Tyelela: No, I don't.

Adv Mpofu: Yes. And, therefore, the idea that if someone, let's put aside now the question of investigations, because we know that there was this controversy about the clearance certificate. But if someone is given delegated functions, such as championing learning and development within the organisation, training senior investigators, career path development, that is like succession planning, training on good governance and ethics, crucial function in an organisation such as Public Protector, and forging partnerships with the SETA, and so on. Those are not menial tasks. I mean, those are crucial functions in an organisation, even for those people who might look down upon HR, because the future of the organisation, for example, depends on the capacity of its people and succession planning, isn't it?

Mr Tyelela: That's correct.

Adv Mpofu: Okay. Alright, I think that's all with Mr Malunga. With Mr Kaposa you agree that, sorry, just a minute. Okay, sorry before we move to Mr Kaposa. Mr Malunga wrote a letter to the Chairperson of the Portfolio Committee on Justice and Correctional Services, Hon Magwanishe, dated 26 November 2019, which you were referred to. You remember that?

Mr Tyelela: Yes.

Adv Mpofu: That you will find at 3443, it's GT9 to your affidavit. Can we go there?

Mr Tyelela: Okay.

Mr Tyelela: Now you were made to read certain parts of that affidavit about the Think Tank and all that, which we'll come to just now. Or maybe let's start with that. In that letter there's just a view I suppose by Adv Malunga, about his view about Think Tank, correct?

Mr Tyelela: No, I did not say it's his view. To me he was actually saying the meetings did not meet. I thought, I read it as a fact as far as he was, I mean, as far as was his last statement. I did not see it as his view.

Adv Mpofu: Okay, if you go to the part that was read to you, it's in the middle of 3445.

Mr Tyelela: Can it be put on the screen I don't have it in front of me?

Chairperson: Okay, we're trying to do that.

Adv Mpofu: At the bottom, you see where he says, it is my considered view that the abolishment of Think Tank structure and so on, and so on.

Mr Tyelela: Yes. Okay, I'm not sure whether you’re still there or you’re talking because I can't hear anything. Its quiet.

Chairperson: Adv Mpofu, are you with us? Okay, I'm told he’s off the platform. Let's wait for few minutes and get him back. Just a bit of patience, Mr Tyelela. Adv Mpofu, you are muted. We lost you.

Adv Mpofu: Okay, Chair. Yes, Chair, I apologise. I thought Mr Tyelela had disappeared. I didn't realise it was me who had disappeared.

Chairperson: Looks like you disappeared again. Mr Tyelela, are you there?

Mr Tyelela: Yes, I'm here and I can hear you clearly.

Chairperson: You are one man standing and let’s check Adv Mpofu again. Might be having network issues where he is. He’s still on the platform just to make sure that he can hear us is. He’s frozen. Adv Mpofu? Maybe let him join again. That will be better that way.

Adv Mpofu: Chairperson.

Chairperson: Are you back with us?

Adv Mpofu: Yes, I think I'm back. Sorry about that. I was just saying can you hear me now, Chair?

Chairperson: Yes, please go ahead.

Adv Mpofu: Thank you, Chair. I'll start where I think I got cut off. If, Mr Tyelela, we were debating. Chair, can you still hear me?

Chairperson: Yes, we can still hear you now.

Adv Mpofu: Thank you. Sorry. I got a fright. I thought I got lost again. Mr Tyelela, we were talking about, you were saying that you did not think it was Mr Malunga’s. I've just shown you that it was his view. I'm sure you want to change that answer.

Mr Tyelela: I was referring to the paragraph above. I now see that you are talking to the paragraph below that.

Adv Mpofu: Okay, but anyway, the point I was making is that you agree that he was expressing his view about the abolition or abolishment of Think Tank, correct?

Mr Tyelela: That's correct.

Adv Mpofu: Again, you know, that the Think Tank is, is not in the Constitution or the Public Protector Act? It's just a management tool, correct?

Mr Tyelela: Yes.

Adv Mpofu: Which was introduced by a particular Public Protector. And any other Public Protector has failed to put their own management tools, correct?

Mr Tyelela: That's correct.

Adv Mpofu: All right. Then we were at Mr, oh no. The reason I brought you here, if you go to 3446, the part that you were not asked to read in the letter. Go to 3446. You can confirm that. For the sake of progress, I'll read it myself. Under a proposed way forward Mr Malanga said, and I quote here, "In the past when I have raised concerns about institutional challenges I have been splashed in the media as having conflict with the Public Protector. That is not true. I have done my best to ensure that the relationship is cordial. It is, however, my considered view that the Portfolio Committee should consider ratifying the glaring vacuum in the regulation of the Deputy Public Protector’s terms and conditions of employment". You remember that?

Mr Tyelela: Yes.

Adv Mpofu: In other words, Mr Malunga was saying there's no truth in the allegations of a so-called conflict between him and the Public Protector. But at the same time, he was acknowledging, or rather challenging Parliament itself as it were, to rectify the anomaly in the Act, namely, that there's no DPP job description, except that he or she may only do what has been delegated by the Public Protector, correct?

Mr Tyelela: That's correct.

Adv Mpofu: Do you know if Parliament has since discharged that duty?

Mr Tyelela: Okay, I'm not aware of that.

Adv Mpofu: Okay, well, neither am I. Thank you. So let's then go to Mr Kaposa. Okay, there's nothing here. You said the Public Protector was not involved in the settlement agreement regarding Mr Kaposa, correct?

Mr Tyelela: Yeah, not as far as I know.

Adv Mpofu: Yes. Thank you. Okay. And let's move on to Mr Mahlangu. You've confirmed that he was the best candidate for the job, correct?

Mr Tyelela: That's correct. He was recommended on condition that he sorts out those two issues, the Labour Court and the security clearance, correct?

Mr Tyelela: That's correct.

Adv Mpofu: And those issues, as you said, may or may not be connected in the sense that the clearance might also be dependent on the outcome of the Labour Court, correct?

Mr Tyelela: That’s correct.

Adv Mpofu: To the extent that something I think was being made of the fact that you were not aware that there was a letter refusing him clearance at the time of the first extension of his term, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: That you only became aware of that when you consulted with the evidence leaders, correct?

Mr Tyelela: No.

Adv Mpofu: Well, that's what they, Ms Bawa, said. What is the correct situation?

Mr Tyelela: I became aware much later after his contract of employment has been extended.

Adv Mpofu: Had already ended, okay. Alright. Okay, fine, then Ms Bawa was just making a mistake, but it's not important. Okay, but in any event, the real point I want to make to you is the following. You confirm, don't do you, that when the Public Protector extended Mr Mahlangu’s term. Just a minute. The next short-term contract. What was included in that particular contract was the fact that he still had to get a clearance, correct?

Mr Tyelela: That's correct.

Adv Mpofu: And therefore, obviously, one doesn't have to be a genius to work out that if that was included at that stage, then it means the clearance had not yet been attained, correct?

Mr Tyelela: Yes.

Adv Mpofu: Thank you. Okay, just again, in passing. I mean, I know you are not involved in investigations per se, correct? Except for the management, on the management side?

Mr Tyelela: That's correct.

Adv Mpofu: So you may or may not know about this. That the Public Protector, other witnesses have confirmed, was very concerned and alarmed at what she thought was the lethargy and the length of time that certain investigations have taken when she got into that office, correct?

Mr Tyelela: That's correct.

Adv Mpofu: And you know, about that, as I say, not necessarily from the core investigation side, but from the management of that problem, correct?

Mr Tyelela: That's correct.

Adv Mpofu: You would also know that one of the things she therefore introduced was a, let's call it, an indicative maximum period that investigations should take so that we don't end up with investigations like before, which could last six years or five years. Certain examples have been made here, correct?

Mr Tyelela: No, my understanding is that those timelines were there before she joined the institution.

Adv Mpofu: Okay, did she not introduce maybe different timelines or even at the level of the implementation thereof to the extent that they were existing?

Mr Tyelela: I'm not aware of that.

Adv Mpofu: But you know, that. Okay, you may again, as I said earlier, you may or may not be aware, but you know, that, for so-called service delivery complaints, there's a maximum period of 12 months in place, correct?

Mr Tyelela: Yes, that's correct.

Adv Mpofu: And for the so-called conduct failure complaints, there's a maximum period of 24 months, correct?

Mr Tyelela: That's correct.

Adv Mpofu: And for the complex matters, there's a maximum period of 36 months, correct?

Mr Tyelela: That's correct.

Adv Mpofu: Thank you. Then there was also she introduced the so-called backlog project to monitor those investigations which might fall foul of those deadlines, correct?

Mr Tyelela: That's correct.

Adv Mpofu: And that backlog project was meant to culminate in all backlog investigations, all things being equal, being finalised in September 2021, correct?

Mr Tyelela: That's correct.

Adv Mpofu: And like everything else, there may be some investigations which fall through those deadlines. What then happens is that they basically get transferred, for lack of a better word, to the backlog project, correct?

Mr Tyelela: That's correct.

Adv Mpofu: Okay, now. Then you testified that there was a meeting to which you are invited. Oh, no, no, that's fine. That's Mogaladi. We'll deal with that last. Let's deal quickly with Mosana. She was the spokesperson, the Public Protector’s spokesperson, correct?

Mr Tyelela: That's correct.

Adv Mpofu: And that is a functionality that is located effectively in the Public Prosecutor's office, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: And it's one of those where there's has to be personnel chemistry or interaction with the employee and the employer, correct?

Mr Tyelela: Correct.

Adv Mpofu: And there was, then there were problems between the two of them, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Some kind of breakdown, let's call it that. Maybe that's too harsh. Let's just say the relationship was not working, correct?

Mr Tyelela: Yes, that's correct.

Adv Mpofu: Yeah. Okay. The Public Protector, gave you effectively, two broad reasons why she could no longer work with Mosana. Namely, one that she was not doing her work. Or I think the way you put it, the Public Protector was tired of doing Ms Mosana’s work. The second one was disobedience or disrespect, correct?

Mr Tyelela: That's correct.

Adv Mpofu: Right. Those two reasons would be sufficient for, well, let's assume for a minute, and I don't know what the facts are, but let's assume that there had been to-ing and fro-ing between the two ladies about non delivery. At a certain point, the one who's senior would be entitled basically to give up and maybe look for someone who's going to actually not need to be spoon fed, correct?

Mr Tyelela: That's correct.

Adv Mpofu: As far as the second issue is concerned, I mean, if it is true, again, you and I don't know if it's true. You would agree that it would be almost unheard of, for someone, let's say it was a Minister or the Chairperson of this Committee, for someone to just call them by their first name, correct?

Mr Tyelela: Correct.

Adv Mpofu: Yes. In fact, in this Committee it's even worse. You're not even allowed to call the Chairperson ‘you’, apparently. But it wasn't that bad at the Public Protector. You were able to say to the Public Protector, "you have just effectively dismissed Ms Mosana", remember?

Mr Tyelela: Yes.

Adv Mpofu: Okay, so you couldn't call her by her first name, but you could say ‘you’. At least, you're working in a better environment. Okay. Now then, of course, I mean we mustn't make a big claim out of this. There are different employers. I tried this when I was a CEO to say people must call me my first name, but they refused. So eventually, they called me Chief, which was a compromise because I think they didn't want to call me by my first name. But the point is that certain employers might not mind or say that they must be called by their first name. That also happens, we must accept, correct?

Mr Tyelela: Yes. We actually had that debate in one of our meetings.

Adv Mpofu: Yes. No, it happens. I know. But without that kind of permission, one can't call the Chairperson of this Committee, for example, by his first name, Qubudile, correct?

Mr Tyelela: Correct.

Adv Mpofu: Alright. Now, if you go to.

Chairperson: I take that is just an example.

Adv Mpofu: I knew that was coming, Chair. You remember when you say that certain things must not be said even as an example? Well, yes, it is an example. Right now. Now, okay, anyway, the last word on Ms Mosana is that her matter is pending before the court, correct?

Mr Tyelela: That's correct.

Adv Mpofu: Okay, so there's nothing we can do about that. Let's go to Mr Ndou. Mr Ndou, according to you, you were aware that he was charged for a serious offence, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: In fact, he was charged with sexual harassment. Evidence has been given here, correct?

Mr Tyelela: That's correct.

Adv Mpofu: I'm sure you don't share the views of one Adv Raedani that sexual harassment has an expiry date and if you raise it at a particular time, then the gun must be pointed back at you, correct?

Mr Tyelela: No, correct. I don’t share.

Mr Tyelela: Yeah, thanks. Okay. Now you said that you are aware that this is the matter in respect of which the Public Service Commission was eventually involved, correct?

Mr Tyelela: That's correct.

Adv Mpofu: Also it was also referred to the Commission for Gender Equality at some stage, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: You’d agree that for a leader who is a woman, like the Public Protector in particular, this would be quite a sensitive issue that she would be less tolerant of than usual, correct?

Mr Tyelela: Correct.

Adv Mpofu: You yourself are not aware of what happened with the CGE and whether the complainant was lobbying other bodies to make sure that this matter doesn't die a natural death, as always happens with sexual harassment? You're not aware of any of that?

Mr Tyelela: Not aware of that. Yes.

Adv Mpofu: But to the extent, therefore, that it was revived. Just for your comfort, it's common cause that the Public Protector after all those interventions was in favour of its survival. So we're not making any bones about that. But you don't know what led to that decision, correct?

Mr Tyelela: Correct.

Adv Mpofu: Now, and then, of course, Mr Ndou fell sick, when it had to be when he was called upon to attend to this matter. And eventually resigned, correct?

Mr Tyelela: That's correct.

Adv Mpofu: Okay. You said you don't know, he may or may not have been aware that the matter is brewing back, or it has been revived, correct?

Mr Tyelela; When he resigned, we had not yet issued the charges. So officially, he was not aware. I don't know if he may be aware in other ways, but officially was not aware.

Adv Mpofu: Yes, no, no, that's exactly what I'm saying. Officially, he had not been informed, but you can’t say that he was not aware from the so-called grapevine, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Thank you. Right. Then let's move to Mr Kekana. You say that Mr Kekana… so do you know more or less the charges that Mr Kekana was facing?

Mr Tyelela: Yes, I can remember some.

Adv Mpofu: Some of them. Okay, fine. I'll lead you through them. It is indeed that actually he received communication by mistake, which was not intended for him. I think there was a mix-up with the names either the same first name or the same surname, I'm not sure. But bottom line is he received communication which was not directed to him, correct?

Mr Tyelela: That's correct.

Adv Mpofu: And he then knowingly transmitted that information to third parties, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: You know that there are policies about the handling of information in the organisation, correct?

Mr Tyelela: That's correct.

Adv Mpofu: And such conduct would have been in transgression of those policies, correct?

Mr Tyelela: Yes, correct.

Adv Mpofu: Okay. Then he was also found guilty by an external advocate from the Johannesburg Bar if I'm not mistaken, correct?

Mr Tyelela: Yes, that's correct.

Adv Mpofu: Thank you. This thing that he was saying too much to the lawyers, you don't know what the content of what he was saying – whether he was telling those lawyers the truth or false information. I canvassed this with him but you don't know, correct?

Mr Tyelela: I wouldn’t, no.

Adv Mpofu: That's fine. Let's go to Ms Baloyi. Ms Baloyi was on probation, correct?

Mr Tyelela: You're correct. Yes.

Adv Mpofu: And her gripe really was that her probation was not extended, correct? Or rather, I'm sorry, was not made permanent.

Mr Tyelela: Yes, correct.

Adv Mpofu: And this one, we can call it a slip-up in your department, correct? In the sense that at the end of the six months somebody, I'm not saying you, somebody slipped up in the sense that at the end of the six months the CEO was not alerted, correct?

Mr Tyelela: Sorry. I did not get that.

Adv Mpofu: Okay. I'm sorry. No, I'm saying, just because I know a little bit more about this case, maybe. But I'm saying you'd agree that this one was, to some extent a slip up on the part of HR, not you personally. In the sense that one of the facts in that matter was the fact that the CEO had not been made aware that the six months had expired in the usual way by HR, correct?

Mr Tyelela: Well, that information, which has been sent to PP; it would not have been sent to CEO.

Adv Mpofu: Okay, good. So well, then we're saying the same thing. That information was probably sent to the PP. But we are saying it was certainly not sent to the CEO, correct?

Mr Tyelela: Correct.

Adv Mpofu: Yeah. The CEO became aware of this, I think, two months later. By which time Ms Baloyi had been, not acting, on probation, quote unquote, for eight months, which is longer than the six months, correct?

Mr Tyelela: That's correct.

Adv Mpofu: And that really is the gist of the dispute. Unfortunately, that matter falls under what I'd call the new wave of reckless litigation. That issue had gone up to the Constitutional Court. I don't know if you're aware of that.

Mr Tyelela: I'm aware of that.

Adv Mpofu: You are aware that the Public Protector was successful in the High Court in Pretoria. I know that because I was doing the case myself. You’re aware of that?

Mr Tyelela: Yes, I’m aware of that.

Adv Mpofu: Yes. Ms Baloyi then appealed to the Constitutional Court. The matter was remitted back to the High Court for the merits, now. Remember, the first part was about jurisdiction, whether she had taken it to the correct place. We were of the view that she should have taken it to the Labour Court. Remember that?

Mr Tyelela: I remember that, yes.

Adv Mpofu: And then the merits were referred. In fact, I think, if my memory serves me well, it was going to be heard in the High Court, or rather, there was to-ing and fro-ing between the lawyers. But it would have been set down in the High Court at the earliest opportunity, if the Public Protector had not been suspended, correct?

Mr Tyelela: That's correct.

Adv Mpofu: But now with all that, there was an instruction from the current Acting Public Protector that the matter should no longer be pursued. In spite of all those efforts and the costs that have been incurred, correct? You might not know. You're not aware?

Mr Tyelela: I’m not aware.

Adv Mpofu: That's fine. We'll deal with it then with a different witness. Okay. Alright. When you say Mr Mahlangu said to you that the issue of performance was not… I remember you said you raised that you were under the impression that Ms Baloyi was doing well, words to that effect, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: And Mr Mahlangu said there were also other considerations, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: And as an HR person, you would know that the issue of probation is much more wide-ranging than mere performance. There might be, and I’m just saying this in general, there might be relationship issues, there might be other compliance issues which are looked at, correct?

Mr Tyelela: Correct.

Adv Mpofu: Okay, but for now, we just know that there were other considerations, which were not specified to you, correct?

Mr Tyelela: That's correct.

Adv Mpofu: Then let's go to Mr Matlawe. Mr Matlawe also resigned in the end.

Mr Tyelela: Yes, that's correct.

Adv Mpofu: Okay. In his case, and not in fairness to you, you have made it clear that all these cases that have been raised with you, quite frankly, have nothing to do with each other. In other words, they’re different types of transgressions. One is about information peddling. The other one is about probation and so on. There's no relationship – the other one is sexual harassment – between these matters, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: In the case of Mr Matlawe, at least, what you do know is that he was attending a meeting with the CEO, and they started raising false issues in that meeting, correct?

Mr Tyelela: That's correct.

Adv Mpofu: Right. And after that, then the disciplinary steps were duly taken against him, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: I mean one of the issues he raised, which was false, was that the organogram had been imposed and not consulted, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: I wouldn't need to go to the other issues. And he, well, he didn't fall sick in his case, but he resigned before he could face the DC, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: In any event, this DC was nothing to do with the PP. It was on the instruction of Mr Mahlangu, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: And you're not aware of the PP having instigated anything in relation to that matter, correct?

Mr Tyelela: No, I’m not aware. That’s correct.

Adv Mpofu: Thank you. Alright. Now then let's move to the two matters that I said I’ll reserve for last. We've already touched on the issue of Ms Mogaladi, Ms Sekele and Mr Madiba. The late Mr Madiba. Okay, so the only persons remaining in respect of that matter are Ms Mogaladi and Ms Sekele, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Okay, this is another matter which has been mysteriously withdrawn. Are you aware of that?

Mr Tyelela: Yes, I'm aware of that.

Adv Mpofu: Okay. The matter, as I understand it, was there was an urgent application in the… Okay, let's do it step by step. You've already confirmed that in respect of this matter, the issue really was that irrespective of the wording of the disciplinary code, which I think is a bit deficient in this respect, but let's put that aside. What you call the chairperson of the committee was an external advocate, I think, an Adv Kuboni, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: From KZN. And basically, I don't know, Ms Bawa, if you have the finding as part of the documents in the Mogaladi matter? Maybe you can assist us.

Adv Bawa: Sorry, Mr Mpofu. Usually, I can but Adv Mayosi is dealing with that. I wouldn't know where it is in the bundles.

Adv Mpofu: Okay, where is she?

Adv Bawa: She's not with us today.

Adv Mpofu: Oh, okay. No, that's fine. Alright, then. Well, let's try Mr Tyelela. I'm sure this will be rectified later but I can say if it assists your memory, you will say if it doesn't, then I'll just leave it here. But this is what the external advocate said in paragraph 26 of the finding, "In the circumstances, I recommend the following sanctions for implementation". Then he dealt with Ms Mogaladi and Ms Sekele. Do you remember it like that as well?

Mr Tyelela: Yes, I do.

Adv Mpofu: Yes. As I indicated earlier, the legal issue was therefore, whether to the extent that this was a recommendation, whether it was still binding on the Public Protector, correct?

Mr Tyelela: That's correct.

Adv Mpofu: The Public Protector obviously held the view which most people would hold, that a recommendation is a recommendation. Therefore she as the decision maker provided she had good reasons was at large to approve or disapprove thereof, correct?

Mr Tyelela: Correct.

Adv Mpofu: And the employees held a different view, correct?

Mr Tyelela: The institution, our advice also was that it does not provide for that. That was our advice.

Adv Mpofu: The internal advice and then it went to attorneys outside, correct?

Mr Tyelela: That's correct.

Adv Mpofu: And they advised that the matter was, I think they issued an opinion that the issue was not or rather they differed with your internal view, correct?

Mr Tyelela: No, they did not differ. Our advice to PP was that the HR code does not provide that is for her to change, that is essentially the chairperson. But if she is not happy with the chairperson, the option is to review the ruling.

Adv Mpofu: Oh, yes, no, fair enough. That option was then taken, correct?

Mr Tyelela: The first one that was taken on the advice of the counsel, I think, was the appeal, which failed. Then we took it on review.

Adv Mpofu: Oh, I see, to appeal before Adv Kuboni?

Mr Tyelela: No, to appeal in the court.

Adv Mpofu: No. Sorry, you're running ahead of us. There's no court yet, here. I'm saying that you gave advice that, to the extent that there was this dichotomy, the correct remedy would be to seek a review, correct?

Mr Tyelela: Yes. That’s correct.

Adv Mpofu: Yes, I'm saying and that advice was then implemented. Hence there was a court action, correct?

Mr Tyelela: That's correct.

Adv Mpofu: And that was implemented via external attorneys, correct?

Mr Tyelela: That's correct.

Adv Mpofu: Right. Then the review court found in favour of the employees, correct?

Mr Tyelela: That's correct.

Adv Mpofu: On the urgent application. Then the main review application was set down for hearing in the Labour Court, probably round about now. I can't remember, correct?

Mr Tyelela: The first court matter was appealed, not the review. The review came later after the appeal was in favour of the employees.

Adv Mpofu: Yes, on the urgent?

Mr Tyelela: Yes.

Adv Mpofu: Yes. Okay, fine. Fair enough , that happened. But as we speak now until at least 28 October, I think after the suspension of the Public Protector, the matter was awaiting the hearing on the actual review, correct?

Mr Tyelela: That's correct.

Adv Mpofu: And then following the suspension of the Public Protector the matter was just dropped, correct?

Mr Tyelela: That's correct.

Adv Mpofu: If you were involved, you can say if you were not, but the attorneys were never given any reason. They were just told to withdraw the matter and also even to withdraw as attorneys of record. Some attorneys from, I think, Pretoria. You don't know or you may not know the process of the withdrawal. But at least you know that it was withdrawn? Centurion. The attorneys were from Centurion.

Mr Tyelela: Yes I know that it was withdrawn. But I don’t know the process, the details of the withdrawal.

Adv Mpofu: Yes. Alright. But you would agree that, to the extent that you had advised the review route, it would have assisted you as HR at least to know – because it's not an easy issue to know what would happen should this occur again in the future, correct?

Mr Tyelela: Okay, I did not get that. Can you repeat that?

Adv Mpofu: Yes, sorry. To the extent that you had advised that the matter should be taken on review, you would therefore agree that an outcome, an ultimate outcome would have assisted you as HR. Because I'm saying this is not an easy issue to, in fact, the courts have held one way and the other. There are cases on both sides of the issue, but I'm saying given the, let's call it for lack of a better word, a deficiency in your HR code. This would have assisted you in respect of if it arose again, in respect of a future case, that an external chairperson made a recommendation, agreed?

Mr Tyelela: That's correct. In fact, we’ve already corrected that internal HR code.

Adv Mpofu: Very good. So again, okay, so that this dichotomy does not arise again, correct?

Mr Tyelela: That's correct.

Adv Mpofu: Yes. Perfect. Okay, so then what I've called a deficiency, now I can call it a deficiency boldly because you yourselves have corrected it, correct?

Mr Tyelela: That’s correct.

Adv Mpofu: Thank you. Alright. Now for what it's worth then, the matter was withdrawn, and costs were to be paid to the other side, if you know?

Mr Tyelela: I don't know.

Adv Mpofu: You don't know. Okay. Well, okay, fine. That happened, I think, after this process had already started on 28 July. But that's fine. If you don't know, you don't know. But you’d know this much at least, that the Public Protector did not simply defer with the recommendation. She did what is prescribed in law, which is you can't differ. You must communicate your difference. She explained that she differed because there were these issues that you and I have canvassed before of seriousness and breakdown in the relationship and so on. But more than that, she gave the affected employees the audi alteram partem rule, opportunity, in that she gave them a chance to indicate why the sanction she had in mind should not be imposed. Sorry, that's a long question. But I'm trying to save time. Do you agree?

Mr Tyelela: I agree, yes.

Adv Mpofu: Thank you. Alright. Well, I had put that the matter was pending, but subsequently I'm told that it has since been withdrawn. Okay, Mr Nyembe, there's nothing there. I think your evidence actually is that although there is no compulsion to advertise a post like this, the Public Protector had actually advertised it, correct.

Mr Tyelela: Which one? There were two positions?

Adv Mpofu: Sorry. It's the one of Chief of Staff.

Mr Tyelela: Yes, it was advertised.

Adv Mpofu: Yes. Thank you.

Mr Tyelela: The one that they could not advertise is the Special Advisor. The Chief of Staff is advertised.

Adv Mpofu: Okay. The Special Advisor, there's no compulsion to advertise?

Mr Tyelela: That’s correct. Yes.

Adv Mpofu: Because it's the so-called I think in the ministries, it's the personal staff or the ministerial staff, or in this case the Public Protector’s own staff, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Coming to the Chief of Staff now, the lady who was appointed to that was not a permanent appointment. It was an acting appointment, correct?

Mr Tyelela: Yes, it was acting and then later it was a secondment.

Adv Mpofu: Secondment of who?

Mr Tyelela: Of the same person. She started by acting and then that acting became a secondment, yes.

Adv Mpofu: Okay, fine. But, in either case, she was not the permanent Chief of Staff, correct?

Mr Tyelela: No, that's correct.

Adv Mpofu: If she wanted to be the permanent Chief of Staff, she would have had to apply, like everyone else?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: And at that stage, if she did not qualify or did not have the qualifications, she’d simply not get the job, correct?

Mr Tyelela: That's correct.

Adv Mpofu: Alright. Right, then we go to our friend, Mr Samuel. Mr Samuel, this thing about his charges being too old, which you even used to share. Can we just get that out of the way? It is correct that the alleged assault happened in 2011, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: It is also correct that the management of those days either accepted Mr Samuel’s version, that he was actually a victim. Then the matter was left at that level, correct?

Mr Tyelela: That was our dilemma. We don't have any communication as far as how that matter was dealt with. So we don't know. Yes, that's correct.

Adv Mpofu: No, thank you. No, that's fine. But let's for a minute give Mr Samuel the benefit of the doubt. On his version, the matter was then dealt with by that management of Mr Themba Mthethwa. Whom I once represented when he was going to be fired at the Public Protector, Adv Madonsela, or something at that stage or something. But anyway, that's just an aside. According to Mr Samuel, that was whatever explanation he gave was accepted by management of those days. Let's assume that it will be both the Public Protector and the CEO, or one of them, correct? Should I repeat that question? Should I repeat that question? I didn't hear your response. Maybe it's the technology or?

Mr Tyelela: No, I did hear the question, but I'm not sure. What are you expecting me…because I'm saying as far as the records are concerned nothing, there are no records. It is difficult to say. They may have agreed or not agreed. There are no records on that. That's what makes it difficult for me to say whether it was resolved or discussed or what.

Adv Mpofu: No. Okay. No, it shouldn't be difficult. Just listen to the question, please. I'm saying, if we then give Mr Samuel the benefit of that doubt on that question. I agree there were no records. Okay. I'm saying, but Mr Samuel’s version is that, and if you know you know; if you don't know, you don't know. But Mr Samuel’s version is that the management of those days, headed by Mr Mthethwa, had accepted his version that he was the victim.

Mr Tyelela: I cannot dispute that version. Yes.

Adv Mpofu: Yes. Were you aware of it? Did Mr Samuel tell you that at that time, it was water under the bridge? It was done and accepted?

Mr Tyelela: Yes, he did tell me.

Adv Mpofu: Good. That's all I was asking you. Okay, that's fine. Now that's why I asked you, do you want me to rephrase the question, because I wanted to assist you. Assuming that to be, for example, the true facts are the following. Mr Samuel was then convicted round about 2017 of assault, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Yes. He was therefore criminally convicted and criminally sentenced of that attack, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: In other words, the court of law found that his version that he was the victim was false. That he was the one who attacked I think it's Mr Lebeya, correct?

Mr Tyelela: Seabi. That's correct.

Adv Mpofu: Seabi, yes. Okay. You agree with me?

Mr Tyelela: Yes, I do.

Adv Mpofu: Yes. So that's the watershed moment. It's not 2011. In 2017, he then gets convicted. His version and of Mr Mthethwa, whoever had accepted it, is rejected by a court of law, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: So the thing of 2011 is completely irrelevant, correct?

Mr Tyelela: Okay, okay. As far as the court processes, it may be irrelevant, but internally we had as I indicated earlier two issues that we're looking at. That it was an old matter, should we proceed? And the second issue was, it was a serious matter, if we don't have any proof that anything was done about it, should we leave it like that? Those were the two issues that we were concerned with, internally, outside the court.

Adv Mpofu: Yes. Okay. No, I understand that, Mr Tyelela, believe me I do. I'm simply showing you that actually. So we are grappling with these two issues, correct?

Mr Tyelela: That's correct.

Adv Mpofu: Yes, I'm just showing you that there was nothing to grapple with because there are actually not two issues. There was one issue, which you and I agree on, is that the matter was of a very serious nature, correct?

Mr Tyelela: That's correct.

Adv Mpofu: It would be a serious matter if a member of, a senior member of the Public Protector actually attacks a member of the public and become a public attacker, not a public protector. That would be self-evidently serious, correct?

Mr Tyelela: Correct.

Adv Mpofu: Yes. Now the other thing that you were weighing this against, I'm showing you that it was non-existent, because you are saying against that serious matter, is the fact that this thing happened in 2011, correct?

Mr Tyelela: That's correct.

Adv Mpofu: But the truth is that the thing did not happen in 2011. The conviction happened in 2017, which is what sparked the issue, correct?

Mr Tyelela: No, the incident happened in 2011.

Adv Mpofu: Alright. Okay, Mr Tyelela. Let's do it slowly. The incident, the alleged assault, happened in 2011. We all agree, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Then it was put to bed rightly or wrongly, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Yes. Then nothing happened for 2011, 2012, 2013, 2014, 2015, 2016. Then in 2017, something new, completely different, and monumental happened. Mr Samuel was found guilty by a court of law of assaulting a member of the public, agreed?

Mr Tyelela: I'm not sure when you say something new because it emanated from 2011. When you say something new, I'm not sure what you mean. It was a result of the incident that happened in 2011.

Adv Mpofu: I understand. So you don't think that a criminal conviction is something new in this whole story we're discussing?

Mr Tyelela: No…

Adv Mpofu: No, sorry. Finish.

Mr Tyelela: Okay. I'm saying it emanated that is from the incident that happened in 2011, though, the judgment was in 2017. When you say new, I'm not sure that is what you mean, because it emanated from the 2011 incident. That is why I’m confused by the word ‘new’.

Adv Mpofu: No, fine. Okay. No, let me assist you. Let's assume it happened in 1922. Okay. Alright. It's very old, correct?

Mr Tyelela: Yes.

Adv Mpofu: But now in 2017, then the person at that time, they say, no, it wasn't self defence, or whatever. Then it's accepted in 1922. Correct?

Mr Tyelela: That's correct.

Adv Mpofu: Then in 2017, that version is found to be false, or at least is rejected by a court of law. Then the person is found guilty, let's say of murder, whatever it is, that had happened in 1922. You, in your estimation, you didn't regard the happening of that event in 2017 as now a new chapter because the person has now been found guilty of murder or rape or whatever it is, by a court of law. You wouldn’t?

Mr Tyelela: No, I wouldn't, I wouldn't regard it as new because as I indicated, it emanated from that incident.

Adv Mpofu: Okay, fine. That's my last attempt now because I don't want us to waste time. I accept that the incident happened 1922. I'm saying the… okay, let me put it this way. Is it an offence in the Public Protector or any other employer that you are found guilty of a criminal offence? Is it something that is important in HR terms?

Mr Tyelela: Yes, it is.

Adv Mpofu: Okay, so when that happens, then does it matter when the thing that you are found guilty of happened 100 years ago or two weeks ago. Isn't the important thing, the fact that you have now been found guilty by a court of law?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Thank you. Okay, fine, then we're on the same page. Alright. Now. So you therefore accept that the real HR issue arose in 2017, despite the fact that the alleged attack or assault had happened whatever number of years before, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Thank you. So really, you guys were just weighing up something serious - but there was no competition there. But be that as it may. Here’s the other issue. Mr Samuel is a very senior employee, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: He knows that you may not serve in such a serious position with a criminal conviction, correct? Or at least he should know?

Mr Tyelela: Yes.

Adv Mpofu: Yes. You know that employees owe the employer a duty of honesty, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: And that duty entails when something like this happens, let's say, okay, I'll run into the problems like the Chairperson where I make an example which might not be palatable, but you will forgive me. Let's say you, Mr Tyelela, last week get convicted of something in Cape Town, which nobody knows about. What would be your duty as an employee?

Mr Tyelela: Is to inform my employer.

Adv Mpofu: Yes. Did Mr Samuel do that?

Mr Tyelela: Inform the employer about the conviction? We heard it from Mr Seabi when he submitted a claim.

Adv Mpofu: Yes, for the first time.

Mr Tyelela: Yes. I'm not aware that Mr Samuel informed the employer about the conviction.

Adv Mpofu: Alright. But you yourself as HR, you can’t dispute the fact that Mr Samuel failed then dishonestly in his duty to report himself basically as he should, correct?

Mr Tyelela: Correct. I'm not aware of the fact that he reported it.

Adv Mpofu: Yes, that's fine. In that case, then if he indeed failed, he'd also be guilty of dishonesty in that sense, correct?

Mr Tyelela: That’s correct.

Adv Mpofu: Thank you. Anyway, we now know that the first time anyone in the organisation got to know about this was when it was being sued by Mr Seabi, I think round about 2018, correct?

Mr Tyelela: It was at the end of 2017.

Adv Mpofu: Pardon?

Mr Tyelela: Towards the end of 2017.

Adv Mpofu: Towards the end of 2017. No, fine, I can live with that. So again, this is another new milestone. So we had a milestone, 2011 is when the incident happened. Sometime in 2017, or towards the end of 2016, I’ll check just now, he gets convicted. But towards the end of 2017, you get sued? When I say you I don't mean you; the organisation gets sued by Mr Seabi, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: So that's another important development in this saga. Correct?

Mr Tyelela: Correct. Yes.

Adv Mpofu: If you look at it in it's true perspective then the fact that he was charged. I think, according to Mr Mahlangu, his charges were being prepared. As you were saying this matter, there was a lot of debate. This would be happening around 2019, correct?

Mr Tyelela: Correct. Yes.

Adv Mpofu: Yes. According to Mr Mahlangu, and you can tell us if you defer, what you call the initial charge at least to do with assault was drafted round about 2019. But Mr Samuel was sick, quote unquote, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Yes. So this story that has been sold here this morning that he was only charged after the affidavit to Parliament, in respect of the initial charge is false, correct?

Mr Tyelela: The initial charge was not issued to Mr Samuel.

Adv Mpofu: Fair enough.

Mr Tyelela: Yes. So then these other things happened before it was issued. So then it is everything was brought to the one charge; otherwise, he was never issued with initial charge of the incident.

Adv Mpofu: Yeah, no, no. I'm sorry, Mr Tyelela if I gave you the different impression, then I apologise. The situation is this. The charges were drafted round about 2019 but not issued, correct?

Mr Tyelela: Yes.

Adv Mpofu: I mean, sorry, again I don't want to mislead you. The charge – let's not say the charges – the charge to do with the assault was drafted in 2019 but not issued due to Mr Samuel’s illness, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Or alleged illness. Then that was 2019, then we get to 2020. January 2020, it's still not issued to him, correct?

Mr Tyelela: That's correct.

Adv Mpofu: Then we get to 11 February 2021. He writes a letter to Parliament insulting the Public Protector and all sorts of things, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: And then, a week later, he goes on a media campaign or rather, let me not colour it. He makes statements in the media about the letter to the Speaker, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: And, therefore, at this stage the 2019 charges have not yet been served to him. The 2019 charge, sorry, has not yet been charged, rather served on him, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: What then happens is due to his new alleged transgression of breaking the communication code, new charges then get added. Then those are served to him, obviously, after. They couldn't be served before he committed the offence. Obviously after he had spoken to the media, correct?

Mr Tyelela: That's correct.

Adv Mpofu: And again, you wouldn’t know. Well, in this case, you might know. Mr Samuel, in a period of his alleged sickness, would have been aware that the employer was trying to serve some documents on him, or maybe you are not aware?

Mr Tyelela: No, I'm aware.

Adv Mpofu: Was he aware?

Mr Tyelela: He was aware. Yes.

Adv Mpofu: Good. So he knew that there are charges that are trying to find him, but except for his so-called sickness, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Yes. And what he then did was to write to Parliament and insult the Public Protector and then claim after that these charges were actually as a result of that, when in fact the charges predated the so-called victimisation, correct?

Mr Tyelela: Yes, the first charges.

Adv Mpofu: The first charge. Therefore, are you familiar with the Protected Disclosures Act?

Mr Tyelela: Yes, I'm familiar.

Adv Mpofu: Yes. So you'd agree that this was a false claim to be the status of whistleblower, because a whistleblower is someone who does something and then gets, quote unquote, victimised as a result of that something. Not Mr Samuel’s situation where there's an assault charge coming your way, which you know about, and it predates the so-called victimisation. Then you falsely claim to be a whistleblower afterwards. You'd agree with that, just as a general statement on the PDA, correct?

Mr Tyelela: Okay, maybe I need to clarify this. When the charges were issued to Mr Samuel, they included the other charges that involved media and all those things. So there was no separation – that initial charge was never issued. So probably when he talked about disclosure, probably he was referring to these other charges, not to the initial charge. That is my understanding.

Adv Mpofu: Okay, let's do it slowly. Mr Samuel was convicted of assaulting a member of the public, right?

Mr Tyelela: That’s correct. Yes.

Adv Mpofu: Mr Samuel in 2019 was aware that he was going to be charged for that serious offence, correct?

Mr Tyelela: That's correct. Yes

Adv Mpofu: Yes. Mr Samuel then moved, rather, blew the whistle in his version after knowing that he was already going to be charged, correct?

Mr Tyelela: Correct.

Adv Mpofu: So in relation to the serious charge of assaulting a member of the public, you would agree that it could not have been a whistleblower, correct?

Mr Tyelela: Correct. Yes.

Adv Mpofu: Because that would be converting the sequence of what the mischief that the Protected Disclosures Act seeks to cure, correct?

Mr Tyelela: Correct.

Adv Mpofu: In all modesty, I can tell you that I was once the chairperson of something called the Anti-Corruption Forum of South Africa and was one of the people responsible for drafting the Protected Disclosures Act so that we can protect whistleblowers. But as you know, that is meant to protect genuine whistleblowers, not false pretenders, correct?

Mr Tyelela: I suppose so.

Adv Mpofu: Yeah, I suppose to. So here we have this fake whistleblower, Mr Samuel, as I say, knowing all what we've already canvassed, then basically writes to the Speaker allegedly blowing some whistle, correct?

Mr Tyelela: Correct.

Adv Mpofu: And thereafter, when those charges are now added to the original charge, which he knew about, he cries, I’m a whistleblower. This is the only reason, in other words, that in terms of the Protected Disclosures Act, one of the most important things is causation, right?

Mr Tyelela: Yes.

Adv Mpofu: In other words, it says you must suffer an occupational detriment, which is the dismissal or harassment or whatever, as a result of, in fact the words in the Act are, on account of or partly on account of the disclosure, the alleged disclosure, correct?

Mr Tyelela: Correct, yes.

Adv Mpofu: That would be a whistleblower. Not somebody like Mr Samuel, correct?

Mr Tyelela: Correct. Yes.

Adv Mpofu: Thank you. I’m just sweeping over a few issues now. Mr Kaposa, the settlement was reached. Obviously, this was an awkward situation, because he was not going to be given, or rather it became clear that he was not going to be given a security clearance, correct.

Mr Tyelela: That's correct. Yes.

Adv Mpofu: In order to mitigate, and obviously that whole saga came at an unfortunate cost to the organisation, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: In order to mitigate that cost, the Public Protector proposed rather than employing someone, having lost the money paid to Mr Kaposa, that to mitigate that we should rather have a seconded person, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Because if a person was seconded from a different department, then the cost would not accrue to the Public Protector’s Office, correct?

Mr Tyelela: Correct.

Adv Mpofu: So that was a good thing, correct? From a cost saving point of view at least, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Thank you. Then Ms Sekele. There was something that was not clear in your evidence about the pecking order. Its correct that Ms Mogaladi was a senior investigator, correct?

Mr Tyelela: No.

Adv Mpofu: Yes, sorry. She was an executive manager.

Mr Tyelela: Yes.

Adv Mpofu: Correct. Which is quite a senior position, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: And, in fact she was an executive manager of a merged set of two previously separate departments, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Yes. Ms Sekele, on the other hand, was more junior; she reported to Ms Mogaladi.

Mr Tyelela: That's correct.

Adv Mpofu: In this order where did Carina, what's her name? What's her surname? Carina van Eeden, where did she fall?

Mr Tyelela: She’s a senior investigator. She reported first to Mr Madiba and later to Ms Sekele. She was not reporting directly to Ms Mogaladi.

Adv Mpofu: Okay, so she was two steps removed?

Mr Tyelela: Yes.

Adv Mpofu: Alright. So effectively, then there was nothing untoward that occurred here, correct?

Mr Tyelela: Okay. I don't understand that.

Adv Mpofu: No, I'm saying in terms of the relationships between these three persons, Ms Mogaladi was the most senior in the pecking order.

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Then comes Ms Sekele.

Mr Tyelela: Yes.

Adv Mpofu: And then comes van Eeden.

Mr Tyelela: Yes.

Adv Mpofu: Okay. No, I thought you were saying or rather Ms Bawa was suggesting that there was something. I don't know if she was talking about the pecking order, but that it was not allowed for somebody else. Ms van Eeden was a witness against these two other ladies, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: You yourself, did you pick up anything? Any anomaly in all this? What we've just discussed?

Mr Tyelela: No

Adv Mpofu: Thank you.

Mr Tyelela: On the reporting lines, no.

Adv Mpofu: Yeah. Alright. And on the charging of, rather, who was complaining against who or who was charging who?

Mr Tyelela: I think Adv Bawa was saying, which I agree with, that apparently Mr Mahlangu said it was the responsibility of Ms Mogaladi to charge Ms Sekele. I was saying it would have been odd because Ms Mogaladi was charged anyway. If he was charging her and she was charging her subordinate, it would look like she is passing the blame from her to her subordinate.

Adv Mpofu: I see. Okay. Basically, you're saying that if you are reporting to me, and I'm reporting to the Public Protector, let's say, and then the Public Protector raises some issue with me. Or some complaint about something or another. In this case, we know it has about a section 7(9) notice, but it doesn't matter. You're saying that I would not be entitled then to charge you, in respect of an aspect of that issue?

Mr Tyelela: No, I'm not saying you're not entitled. I'm saying the perception could be because you are charged, now you are charging me. That could be a perception.

Adv Mpofu: I see, the perception. Okay. But in terms of HR terms, there's nothing stopping me from charging you correct?

Mr Tyelela: Yes, that's correct.

Adv Mpofu: Thank you very much. Okay. Okay, finally, then there's the issue of which we also didn't understand the evidence. You can just clarify for the Committee. You would know, as someone who has worked in these industries. This is something that I know I once implemented it somewhere. But that's another issue. Basically, what was happening with the leave was that people were encouraged to use it or lose it, correct? There's something called the use it or lose it principle of leave. In other words, if you accrue too much leave over a long time, then you might forfeit.

Mr Tyelela: You might forfeit it, yes.

Adv Mpofu: So that’s what was happening, correct?

Mr Tyelela: No, I'm not sure in what context; are you saying that that is what was happening?

Adv Mpofu: No, no, I'm saying there was a whole issue about leave. Sorry, I should be asking you in what context. Yes, I'm saying the people who were complaining about leave were effectively complaining about I think there were two things that were being raised. The first one is that, and there's already been evidence about this, that there was, in the quest to chase the backlog and all that, there was, let's call it a stricter implementation of leave, or the refusal thereof, correct?

Mr Tyelela: Yes, employees involved in that project were not allowed to take leave.

Adv Mpofu: Yes. And by the way, are you aware that there was also leave fraud? That there were people who were taking leave and then logging into the system that they were at work.

Mr Tyelela: I'm not aware of that.

Adv Mpofu: You're not aware of that. Okay, fine. We'll deal with that separately. Okay, fine. Let's come back to your statement. So that's one thing, then people, let's say would not be allowed to take leave for whatever good reason or bad reason doesn't matter. But the gist of this is that once people had accumulated too much leave whatever that means, then they also stood the risk of forfeiting some of it, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: That's what the gripe really was about, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: Okay. But all that was a result of what you and I have called this stricter enforcement of leave in relation to people involved in certain priority projects, correct?

Mr Tyelela: Okay, the gripe was the fact that they were not allowed to take leave and then they were worried that they would forfeit it.

Adv Mpofu: Yes, but that's exactly what I'm saying. That's why I started with the enforcement issue, and then came the concern about forfeiture. So we agree, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: You say that the Public Protector Busisiwe Mkhwebane also introduced a wellness programme in 2021. Although it was not being introduced for the first time, correct?

Mr Tyelela: That's correct. Yes.

Adv Mpofu: And that's a good thing, correct?

Mr Tyelela: Yeah, it is a good thing.

Adv Mpofu: Thank you, Mr Tyelela. Chairperson, those are the questions. Thank you.

Chairperson: Thank you, Adv Mpofu. We'll take a tea break and back in 15 minutes. Let's start with the Members' questions.

[Break]

Committee questions to Mr Gumbi Tyelela

Ms J Mananiso (ANC): Okay, thank you Chair and good day to Members in the House and as well on the virtual platform. Let me welcome Mr Gumbi Tyelela. Good day, sir.

Mr Tyelela: Good day, ma’am.

Ms Mananiso: My first question to you is, did the PP give reasons for rejecting your advice and that of the attorneys regarding the award to Ms Mosana?

Mr Tyelela: To Ms Mosana?

Ms Mananiso: Yes.

Mr Tyelela: No.

Ms Mananiso: Okay. You're saying no? So you didn't have reasons from the PP?

Mr Tyelela: No.

Ms Mananiso: Okay. Then sir, my second question to you is with regards to what you said in your affidavit paragraph 56, last line where you speak about the PP discretionary powers. Did she uphold to these powers according to you?

Mr Tyelela: Paragraph 56?

Ms Mananiso: The last line that speaks about the PP’s discretionary powers. I just want to check with you if, according to you, with your experience working with her, did she uphold to those powers?

Mr Tyelela: Okay, paragraph 56 is the one that talks about the first short-term contract was extended to 1 August 2018. Are you there?

Ms Mananiso: Yes, I'm there. I just want to know if, according to your experience working with her, did the PP actually uphold to her powers? Yes or no?

Mr Tyelela: In relation to? In relation to what?

Ms Mananiso: In relation to executing her powers as the PP?

Mr Tyelela: Chair, I don't understand the question. Let me read this paragraph and put it into context.

Ms Mananiso: Okay, sir.

Mr Tyelela: The first short-term contract was extended from 1 August 2018 to 31 July 2019. This was for a longer period in order to ensure continuity in the organisation. I was instructed by the PP to prepare a further fixed term ending 30 April 2023. Whilst it remained subject to Mr Mahlangu obtaining top secret security clearance, a failure of which would result in an automatic termination of the contract. Further that should the Labour Court confirm Mr Mahlangu's dismissal the contract would terminate on the date of the court order, okay. My view on this one is that of the panel that we should not have appointed Mahlangu while these two matters were still pending.

Ms Mananiso: Okay, so you don't have the answer if, according to you, with your experience with the PP, did the PP hold on to the issues of her powers? You don't have the answer with regards to that? Because my question is with regards to the discretionary powers vested with the PP.

Chairperson: Maybe just a pause. Adv Bawa.

Adv Bawa: I just want to add a point of clarification. I think the discretion comes in the last part where it says, consideration where the PP decided otherwise after studying the judgment. We just need to clarify that there's never been a judgment. Those Labour Court proceedings were never completed or hasn’t to date been completed based on the evidence we got. So there is a bit of disjuncture between the question and what the witness is understanding.

Chairperson: You follow that, Hon Mananiso and Mr Tyelela?

Ms Mananiso: I did follow that. Hence, I'm asking about the experience of Mr Tyelela working with the PP. If, according to him, did the PP uphold to these discretionary powers? If the question is not relevant, or it's not understood, we can pass to another question.

Chairperson: Okay, proceed Hon Mananiso.

Ms Mananiso: Okay, and then my other question is on paragraph 64 of your affidavit. Do you think the PP handled the differences with Ms Mosana in a negligent manner or in a correct manner?

Mr Tyelela: Well, that will be difficult to answer, because I don't know what had happened before. That is if that was the first instance, I would say the matter could have been handled better. By better, I mean it would not have resulted in PP’s thing that she can no longer work with her. My difficulty is that I don't know if that was the first instance of this happening between them or it was the tenth instance. If it was the first instance then I guess I would say she should have handled it differently. But if it was the fifth, sixth, seventh, tenth instance, then I would understand.

Ms Mananiso: Okay, thank you Chair. My last question to you, sir, is how would you explain the inconsistency in the manner in which the PP dealt with employees who did not have security clearance, particularly as it relates to Mr Kaposa and Mr Mahlangu? Why did PP treat mistake Mr Kaposa differently than Mr Mahlangu, as both did not have top security clearance? Thank you, Chair. That's my last question.

Mr Tyelela: I don't have an answer to that, Chair.

Chairperson: You can’t answer that? You don’t have an answer to that? Is that what you’re saying?

Mr Tyelela: Yes.

Ms Mananiso: Okay, thank you.

Chairperson: Okay. Hon Tseke.

Ms G Tseke (ANC) Thank you very much Chair. Good afternoon, Mr Tyelela.

Mr Tyelela: Good afternoon, Ms Tseke.

Ms Tseke: What was the role of Mr Sibusiso Nyembe before he was appointed as the Chief of Staff?

Mr Tyelela: He was the Special Advisor to the Public Protector.

Ms Tseke: I'm raising this question because Mr Tebogo Kekana, when he gave evidence to this Committee, said that Mr Sibusiso was introduced initially as a political adviser by the PP in one of their meetings with the legal adviser. I raised it in that context. Was he not a political adviser to the PP?

Mr Tyelela: Well, I was not part of that meeting. What I knew was that he was a special advisor. I don't know in which particular areas he was advising PP. I just know that he was a special advisor.

Ms Tseke: When was he appointed as special advisor, just to confirm on record?

Mr Tyelela: Let me just confirm in my affidavit.

Adv Bawa: Paragraph 110.

Mr Tyelela: Okay, that was from 1 April 2018 to 30 June 2018. It was a three-month period.

Ms Tseke: And he left because his fixed-term contract expired. Was his fixed term three months?

Mr Tyelela: That's correct, yes, as a special advisor.

Ms Tseke: Okay, let's move from that. In paragraph 55, you indicate that there was a criminal charge pending against Mr Mahlangu. What was he charged with at the time and was the PP aware of this?

Mr Tyelela: Yes, he declared it in the interview. It was driving under the influence. But later on, it was cleared. He brought something from the, I don’t know whether it was from the court or police clearing it.

Ms Tseke: So you appointed him with that record, criminal case?

Mr Tyelela: That’s correct. Yes.

Ms Tseke: What was the view of the PP with that?

Mr Tyelela: He just declared it in the interview, there was no discussion about it.

Ms Tseke: Okay, my next question, in paragraph 109 you indicated that the PP was not happy with the outcome of the DC disciplinary hearings against Ms Mogaladi and Ms Sekele. Would you say that the PP pursued disciplinary charges against the employees with a predetermined outcome in mind, notwithstanding the recommendation by the panel that conducted the hearing?

Mr Tyelela: Well, it's clear from the letter she wrote to these employees after receiving the outcome because she said they should explain why they should not be dismissed. That implies that she wanted them to be dismissed, because she believes that the sanction was not appropriate with regard to the charges.

Ms Tseke: Thanks very much, Mr Tyelela. My last question, Chair. When the PP sought the assistance of the Commission on Gender Equality, instead of accepting the report of the external law firm, do you think she may have wanted a particular outcome from the investigation?

Mr Tyelela: Not necessarily. She sought that advice from CGE because the employee appealed to her, so she had to do something about the appeal.

Ms Tseke: Thanks very much, Chair. Thanks very much, Mr Tyelela.

Chairperson: Thank you, Hon Tseke. Hon Sukers.

Adv Mpofu: Chair?

Chairperson: Before that, Hon Sukers. I see the hand of Adv Mpofu.

Adv Mpofu: Yes. Chair, sorry. I just wanted to come in between Members. Just a point of information maybe for the Committee, that when somebody is charged with something that does not amount to a record. The record only comes when you are convicted. Just so that we don't lose that point.

Chairperson: Thank you Adv Mpofu. Let’s just agree on this so that you don't do this with so much regularity because I’d like to have the Members having this space with themselves. Thank you for the information but I want us to tone down on the regularity of that, thank you.

Adv Mpofu: But then Chair you should have done the same when Adv Bawa was also assisting with clarifying. You can’t only do it to me.

Chairperson: I’m not going to go to where you want me to go. I'm just making this point. Thank you. Hon Sukers.

Ms M Sukers (ACDP): Thank you, Chair. My papers are a bit all over the place but I'm going to try and stick to the time. Good afternoon, Mr Tyelela and thank you for coming before this Committee. I have a few questions that I would like to pose to you. I actually have a few. One centres around the affidavit of Mr Samuel and the other around the HR strategic function as it pertains to the Public Protector’s Office. I should say to you that I come from an executive search and change management background so HR specifically is very important to me, and I have a certain bias where that is concerned. Issues of fairness as well, is very important. I have a very particular bias and taking my and perhaps your bias in mind, would you agree that in the Public Protector’s Office, you are only working through people, you don't have machinery production lines. You are working with people and people are your main asset in the organisation. So would you agree that HR is a critical strategic function in order for you to execute on your strategic mandate?

Mr Tyelela: Yes, I fully agree with that, Hon Sukers.

Ms Sukers: Bearing that in mind, I'm going to ask you a few questions related to that. I'm going to refer to Mr Samuel’s affidavit, and I must apologise to you because I'm a bit disorganised with my papers and I apologise for that if there's a little bit of a delay. He writes in his affidavit in paragraph 91: "I was a member of the Public Servants Association, which was the only union among OPP staff and representative of the majority of staff members. In the feedback sessions from PSA shop stewards, it was clearly communicated to us that OPP employees were unhappy with the working environment that the PP had introduced. The same information was relayed to us at the OPP bargaining forum at which I represented the provincial offices". Now given that particular statement, what has been done within the organisation to deal with those environmental climate issues, if I can refer to it like that?

Mr Tyelela: One of the issues that was done was the introduction of this wellness programme, so that any employee who experience a wellness issue, then she can refer it to the service provider or to the supervisor. That was one of the interventions that were done by the institution.

Ms Sukers: You say the employee wellness programme, would you mind telling the Committee what that consists of? What type of intervention specifically was that?

Mr Tyelela: Well, it's an external. Okay, can you hear me?

Chairperson: Yes we can hear you. Proceed.

Mr Tyelela: Okay. It's an external service provider where employees can conduct, that is, on their own if they experience any new challenges at work. They can also be referred to by their supervisors, any employee wellness related matter is addressed through that process.

Ms Sukers: In line with the same sentiment that I spoke of in terms of the environment in which you operate, and that the execution of tasks and purpose of the organisation or the department is taking place in, that that is very important. In terms of that, would you agree that if people within an environment are under pressure, and people are unhappy, as stated in the affidavit here, that that would have a material impact on the performance of the organisation and the individual?

Mr Tyelela: I agree with that fully.

Ms Sukers: Would you also agree that, given the mandate of the Public Protector’s Office, which deals with the constitutional mandate of protection of the vulnerable, and specifically if we relay it to your work environment, any individual that finds himself as a worker, regardless of rank, that your environment is critical to you executing on that mandate?

Mr Tyelela: Yes, I would agree with that.

Ms Sukers: Okay, so in light of that I'm going to ask you a few questions related to Mr Samuel related to specifically what I've mentioned now. Can you explain what written directives were given to line managers with regard to audi letters and where can we find those?

Mr Tyelela: I'm not sure if I understand the question. You say can I explain about the written directives that were given to managers regarding audi letters?

Ms Sukers: I think to make it simpler, I'm going to try and find it. I think it's in the affidavit as well of Mr Samuel, and it may be more practical to say it's in paragraph 100. It says, "She would also insist", and with respect we talking about the Public Protector, "that people who did not meet the deadlines be subject to disciplinary action. Executive managers had instructions to issue audi letters. Letters asking the recipient why he or she should not be disciplined in respect of missed deadlines". And I'm asking the question within the context of what I said in terms of environment.

Mr Tyelela: Yes, I would agree with that. As I stated in my affidavit and evidence, that I was also instructed by the Public Protector to issue an audi to a particular employee. I would imagine that other managers were also given such instructions.

Ms Sukers: Now, my question to you, sir, in light of that, what was the impact on the employees once they receive audi letters?

Mr Tyelela: Well, the impact would obviously be negative because nobody wants to receive an audi letter.

Ms Sukers: Then I'm quickly going to jump to Mr Samuel and his affidavit. The sickness that we've heard from other witnesses and today it was brought up again. Did you receive medical certificates from Mr Samuel that indicated that this condition was not imagined, but that it actually was a real medical condition?

Mr Tyelela: Yes, we did.

Ms Sukers: So there is no reason for this Committee to disregard the illness of Mr Samuel, in terms of the testimony that he gave.

Mr Tyelela: No.

Ms Sukers: Then, in terms of the environment and the constitutional mandate of the Public Protector, I want to ask you the following. Mr Samuel wrote a letter to the Speaker of Parliament in January. He followed it up with a letter to the Public Protector in March. Then on 20 March disciplinary action was instituted against him. My question to you, given all of the circumstances or nuances let’s rather say, were all of those considered when the disciplinary action was started against Mr Samuel? Meaning did the organisation, the management, the senior managers consider this is the Public Protector’s Office, we are in protection of the Constitution where the importance of rights, basic rights, all of those things. Was it taken into consideration given that Mr Samuel has made a protected statement to the Speaker and then followed it up to the Public Protector; then a case that is nine or eleven years old, was brought against him? Was any consideration of this taken by the executive or by the senior managers?

Mr Tyelela: Well, no, I don't think so. When the employer believes that an employee has transgressed the code of conduct, you look at how do you deal with that. I don't think that there was consideration of the environment and all those other things. The focus was that this employee has transgressed the code of conduct. Then the action was solely based on that.

Ms Sukers: Even though it was nine years ago and even though it was under a different executive and even though the circumstances were unknown to the current managers, as you testified before?

Mr Tyelela: Yes, that's correct.

Ms Sukers: Chair, am I out of time?

Chairperson: Your last point. Unfortunately, I work within a framework with passion.

Ms Sukers: I know Chair and I appreciate. I want to ask in light of the scathing court judgment of the Public Protector, as referred to earlier in the affidavit, were any steps taken by the organisation to improve the quality control?

Mr Tyelela: Yes, that is being addressed on a regular basis. For example, one of the steps taken was that after a judgment has been issued by a court that judgment is discussed with investigators to identify where the loopholes are so that the next report can be of a better quality.

Ms Sukers: Thank you very much for your indulgence, thank you Chair for your indulgence as well. I appreciate it.

Chairperson: Thank you Hon Sukers. I now recognise Hon Gondwe.

Dr M Gondwe (DA): Mr Tyelela, can you hear me?

Mr Tyelela: I can hear you, Hon Gondwe. Good afternoon.

Dr Gondwe: Good afternoon, sir. I have a number of questions for you. My first question is, who from the Office of the Public Protector recommended that someone from the SSA sit on the panel that appointed Mr Neshunzhi? Why would the appointment of Mr Neshunzhi necessitate that a rep from the SSA sit on his appointment panel? Was Mr Neshunzhi being seconded from the SSA to the Office of the Public Protector?

Mr Tyelela: No, as far as I know, when Mr Neshunzhi was appointed here, he was not working.

Dr Gondwe: You have not answered my question?

Chairperson: Repeat your question, please.

Dr Gondwe: Why would the appointment of Mr Neshunzhi necessitate that a rep from the SSA sit on his appointment panel. Who took the decision that someone from the SSA should sit on his appointment panel?

Mr Tyelela: The decision was taken by PP and as I indicated earlier, we do invite external expertise in that particular field sometimes when we conduct interviews.

Dr Gondwe: Thank you. Other than the panel which oversaw the appointment of Mr Neshunzhi, which other appointment panel within the Office of the Public Protector has had the SSA as a rep on that panel?

Mr Tyelela: No. There is no other one because the external person would be an expert in that particular field. SSA was brought in because it was a security manager position. If for example, it's financial it's a CFO, we would get a financial person from another institution.

Dr Gondwe: Thank you. In your opinion or view, did the Office of the Public Protector maintain close relations or ties with the SSA?

Mr Tyelela: Yes, we would. The institution does have ties because as I indicated the CFO was from the SSA and obviously with the vetting we work with the SSA. So we do work with them and as I say even the seconded CFO was from SSA. So there are clearly ties between us as an institution and the SSA.

Dr Gondwe: Okay, when you say that you have close ties or you know, you've maintained close relations with SSA, what is the SSA? Is it your sister institution? Do you have an MOU with them? I want to understand the nature of the relationship. And I'm glad you pointed out that someone was seconded from the SSA to occupy the position that Mr Kaposa previously occupied, that of CFO. I want to understand who recommended that someone from the SSA be seconded to this position? To your knowledge, how many times have people from the SSA been seconded to the OPP?

Mr Tyelela: No. That is the only one I know. The CFO.

Dr Gondwe: Who recommended that someone from the SSA be seconded to that position of CFO?

Mr Tyelela: I assume it's PP.

Dr Gondwe: All right, thank you. In paragraph 29 of affidavit, you indicate that both Mr Mahlangu and the PP disclosed a conflict of interest in relation to the appointment of Mr Amos Skosana. Do you recall the details of the conflict of interest disclosed by both the PP and Mr Mahlangu in this regard?

Mr Tyelela: No, it's not required that people should disclose the details, just saying by indicating in the form that I know this person, probably from a previous employer or just indicating that you'll know this person. There are no details that are required on how do you know the person. That is not required.

Dr Gondwe: Was there a representative of the SSA sitting in on that panel that appointed Mr Amos Skosana seeing as he replaced Mr Neshunzhi as senior manager for security management?

Mr Tyelela: I can't remember. I'm not sure. I don't think so but I’m subject to correction. I don't think there was an SSA representative.

Dr Gondwe: Okay, thank you, Mr Tyelela. Mr Tyelela, do you have top secret security clearance?

Mr Tyelela: Yes, I do.

Dr Gondwe: When did you get it?

Mr Tyelela: 2017, I think.

Dr Gondwe: All right, thank you. I know that you stated that you were not consulted about the charges that were brought against Mr Kaposa. My question to you then is why did you agree to be involved in the settlement agreement pertaining to Mr Kaposa even though you were not familiar with the charges levelled against him? Did you not ask yourself how Mr Kaposa could be charged with dereliction of his duties when he was prevented from carrying out these duties because he didn’t have a top-secret security clearance?

Mr Tyelela: Well, if the CEO asked me to be part of an HR related matter, I wouldn't refuse. So the fact that I was not part of drafting the charges, I did not think that it stops me from assisting when the CEO asked me to participate in the settlement agreement.

Dr Gondwe: Please confirm what Mr Nyembe’s qualifications were. I believe he's late now, right? And what sort of advice was he rendering to the PP at the time that he was appointed as Special Advisor to the PP? We've heard before that he was a political adviser and you described him as a Special Advisor. I want to understand what his qualifications were and what kind of special advice was he rendering to the PP at the time?

Mr Tyelela: Well, he has a legal qualification. I think it's LLB, I'm not sure. But I know that it's a legal qualification. But the type of advice he was giving to PP, I won’t know. I just know that he was a Special Adviser.

Dr Gondwe: Can you confirm, do you know if Mr Nyembe had top secret security clearance?

Mr Tyelela: No, I don't know.

Dr Gondwe: Is it my last question, Chairperson?

Chairperson: The Chairperson will tell you when it's your last question.

Dr Gondwe: Now I want to speak a bit about the former DPP, Adv Kevin Malunga. I want to understand whether it's your view that Adv Mkhwebane amended Adv Malunga’s delegated powers from being focused on oversight to being focused on training, because he did not have top secret security clearance? Is that your view?

Mr Tyelela: Yes.

Dr Gondwe: Has top-secret security clearance always been a requirement for the post of Deputy Public Protector?

Mr Tyelela: I'm not aware. The position of Public Protector is not recruited internally like other positions, so I wouldn't know what are the requirements for that position.

Dr Gondwe: Thank you. Then the matter of Ms Mosana. Why were the CCMA proceedings defended despite your recommendation that the CCMA award be paid, and attorneys and the senior counsel and HR advised that the prospects of reviewing the award were poor? Who ultimately took the decision to defend the matter?

Mr Tyelela: Well, I don't know why was the advice not taken. The ultimate decision to defend the matter was PP’s decision.

Dr Gondwe: All right. I’m done, Chairperson.

Chairperson: That's a surprise. Thank you, Hon Gondwe. I now recognise Hon Dlakude.

Ms D Dlakude (ANC): Thank you, Chairperson. Good afternoon, Mr Tyelela.

Mr Tyelela: Good afternoon, Hon Dlakude.

Ms Dlakude: Mr Tyelela, in paragraph 13 can you please explain or elaborate further. What do you mean about the undue pressure from managers and the working conditions?

Mr Tyelela: That is paragraph 13?

Ms Dlakude: Yes. You said employees were under undue pressure from managers and their working conditions was unacceptable. What do you mean by that? If you can elaborate so that we can have a better understanding?

Mr Tyelela: It would be for example, deadlines that… let me make an example of the backlog project. Now I'm not part of that process but I would ask the CEO after the meeting, how did the meeting go? Then he would say it did not go well, people have not met the deadline. Then I remember asking the CEO then what is the way forward? And he said no, then this particular deadline was given. But I will say to the CEO, but you know that deadline is unrealistic. I mean, you're not going to meet that deadline. It's such issues where deadlines are given which are not realistic, which put pressure on employees.

Ms Dlakude: Okay. Thank you very much, Mr Tyelela. In paragraph 22, you said you were part of the panellists. You were not allowed to participate in the scoring. What were the reasons for that?

Mr Tyelela: It's not a question of not being allowed. In those interview panels, my role is the secretary and giving HR advice. I'm not a scoring member.

Ms Dlakude: In other organisations, Mr Tyelela, if you are part of the panel, you are interviewing people and you are part of those who will be shortlisting. You're allowed to do everything including scoring. It means that institution is different from others. Then I'll pass from that. In paragraph seven of your affidavit, you provide information about cost containment measures that were implemented by then CEO Mr Mahlangu. Was this only applied to operational matters exclusive of litigation undertaken by the PP?

Mr Tyelela: No, it included litigation, as I indicated earlier, a decision was taken that we should not oppose every matter that was brought to court. That was one way of reducing legal costs.

Ms Dlakude: In paragraph ten, you indicate that a decision was taken not to oppose review proceedings, considering the escalating legal costs. When was this decision taken?

Mr Tyelela: I can't remember when it was exactly taken. Because in our management meetings, Legal Services like other units, they present their report and Finance also present their report. Then when we discuss the reports, we identify that there's likely to be over expenditure in particular areas, then we take those decisions. I would not know which particular meeting and when that decision was taken.

Ms Dlakude: Mr Tyelela, considering the extent to which the legal costs of the PPSA has escalated over time, do you think this decision was adhered to by the PP?

Mr Tyelela: Well, we did implement this decision of not opposing every matter. But there were matters that were defended or opposed. So the legal expenditure continued to rise.

Ms Dlakude: Mr Tyelela, does the PP have a final say on which matters to oppose and which not to?

Mr Tyelela: Yes, because the submission will come from Legal Services advising whether the matter should be opposed or not. That submission will ultimately go to PP for a final decision.

Ms Dlakude: Okay. Have the review proceedings that the PP opposed in anyway served to protect the mandate of the institution? Or was simply opposing matters because she was not happy with the outcome?

Mr Tyelela: Well, I wouldn't know that. I don't have an answer for that.

Chairperson: We didn't hear that. Please repeat. You were fading.

Mr Tyelela: I'm saying I wouldn't know that. I don't have an answer for that.

Ms Dlakude: Okay. In your paragraph 21, the PP denying employees their annual leave resulting in the PPSA paying out their employees. Do you agree that the decision of the PP led to the institution incurring unnecessary expenditure, considering the limited resources of the institution?

Mr Tyelela: I would agree that it would result in that but that has not been implemented. The acting PP has decided against that.

Ms Dlakude: Could this have been avoided? Okay, let me leave it because you say it wasn't implemented. Mr Tyelela, my last question. Do you believe that some of the labour dispute costs incurred by the OPP were unnecessarily wasteful for an institution that has limited resources?

Mr Tyelela: There are some that I believe they should not have been taken forward.

Ms Dlakude: Thank you very much, Chair.

Chairperson: Thank you, Hon Dlakude. I recognise Hon Skosana.

Mr G Skosana (ANC): Thank you very much. Good afternoon to everyone. Good afternoon, Mr Tyelela.

Mr Tyelela: Good afternoon, Hon Skosana.

Mr Skosana: In paragraph 91.8 of your affidavit, you indicated that the Commission for Gender Equality only did a desktop search in relation to the allegations about Mr Ndou. So would you say they failed to interview people relevant to the case?

Mr Tyelela: It's difficult to say they failed because if they felt that they could make a decision by just looking at the information that was given to them, they could be able to make a decision. I wouldn't necessarily say they failed. Probably they were satisfied that the information before them would enable them to make a decision.

Mr Skosana: Okay, my next question, in reference to paragraph 72 and 75, don’t you think that the legal and labour dispute costs could have been avoided in the dispute brought by Ms Mosana?

Mr Tyelela: Yes, that was our view that this matter should not be opposed. But as it was indicated earlier, an advice is an advice. So the CEO, PP does not have to take it.

Mr Skosana: Okay. My next question is an instruction that was given by Mr Mahlangu on the continuation of the disciplinary proceedings in relation to the case of Mr Matlawe. I think there's somewhere you indicate that Mr Mahlangu gave an instruction that the disciplinary proceedings should go on despite the fact that Mr Matlawe had resigned. What was your advice as the HR department in that regard?

Mr Tyelela: Our advice was that we should let it go because I mean, it's a waste. Firstly, clearly it was not going to be completed. It was a waste of time and resources to continue with something that we know that you're not going to complete. Mr Matlawe was already serving a notice.

Mr Skosana: Did you make that advice in writing?

Mr Tyelela: No, it was a discussion in his office.

Mr Skosana: Okay. My last question in relation to Mr Kaposa. Was Mr Kaposa’s appointment as the CFO subject to the same conditions as those of Mr Mahlangu due to the fact that he also didn't have a top security clearance?

Mr Tyelela: I am not sure when Mr Kaposa joined the institution; I was not here. I found him here.

Mr Skosana: Okay. So Mr Kaposa was charged with dereliction of duty, according to paragraph 42 of your affidavit.

Mr Tyelela: That's correct.

Mr Skosana: And then, I think in paragraph 46, where you say Mr Kaposa would not be able to obtain such clearance, referring to top secret clearance, as he was a naturalised South African and had not lived in South Africa for the requisite number of years. But he could also not be dismissed because of the security clearance issue, given that the post had not been advertised with top security clearance being a requirement. So which duties and/or responsibilities were then given to Mr Kaposa since he could not perform his duties as CFO, because of the issue of the top-secret security clearance?

Mr Tyelela: No, he was not given any duties, that is why there was an agreement that there should be a separation agreement.

Mr Skosana: Okay, so basically, he was not doing anything in the institution?

Mr Tyelela: If my memory serves me well, he was on suspension during that period.

Mr Skosana: And then the charge of dereliction of duties, what does it entail?

Mr Tyelela: I don't remember the details of those particular charges. But normally it relates to where you are expected to perform certain responsibilities and you fail to perform them. That is a general understanding of dereliction of duties.

Mr Skosana: Okay, no, thank you very much, Mr Tyelela. Thanks, Chair.

Chairperson: Thank you, Hon Skosana. Before I proceed to the next member I see the hand of Adv Mpofu.

Adv Mpofu: No, it's fine. I just wanted at that point to ask, wanting to find out what, whether all these HR thing whether this matter or that matter should have been proposed. What it has to do with the motion?

Chairperson: Thank you, Adv Mpofu. You can’t ask the Member now when they ask him questions.

Adv Mpofu: No, I'm not asking any Member. I'm not asking any Member. I’m asking you. I'm raising it with you.

Chairperson: Thank you. If you ask me, you did place on record your discomfort of irrelevance of the witness in the morning and evidence leader would have done her work. You also went through your critical questions. I would have made the ruling to say we going to be allowing.

Adv Mpofu: Everything?

Chairperson: Yes and then assess, so I unfortunately don't have a new answer now to your question. Thank you. You are muted.

Adv Mpofu: I was saying, you should have a new answer because it's a new question but that's fine, Chairperson.

Chairperson: Thank you, Adv Mpofu. I now recognise Hon Mileham.

Mr K Mileham (DA): Thank you, Chairperson. Good afternoon, Mr Tyelela. I want to pick up on something that you mentioned with regard to Mr Kaposa. In your affidavit at paragraph 48, you note that, or you suggested that the appointment of a new CFO be delayed until the settlement with Mr Kaposa had been recouped. Did that occur?

Mr Tyelela: Yes, it did occur, because the person that was seconded here was seconded certainly for more or less a year. I'm not exactly sure about the period, but he was here for quite some time.

Mr Mileham: Okay, now, that person that was seconded to fill Mr Kaposa’s position as acting CFO from the State Security Agency, who paid that person's salary?

Mr Tyelela: That is my understanding. I’m subject to correction.

Mr Mileham: Sorry, what is your understanding?

Mr Tyelela: My understanding is that we will not incurring any cost that is towards that person.

Mr Mileham: Okay. Turning to a slightly different matter, you responded to Hon Gondwe by saying that you personally have a top-secret security clearance. Have you ever handled any classified documentation?

Mr Tyelela: You will have to define classified documentation. I don't know what that is.

Mr Mileham: You don't know what that is?

Mr Tyelela: No.

Mr Mileham: So you don't know if you've handled classified documentation or not?

Mr Tyelela: No, I don't.

Mr Mileham: Okay, can I ask you why would a Chief Financial Officer require a top-secret security clearance?

Mr Tyelela: I don't know. What I know is that senior managers are required to have top secret. I don't know what would be the specific… As I say, I don't know what classified information is.

Mr Mileham: Would you agree that there has been an increase in the securitisation of the Office of the Public Protector since Adv Mkhwebane’s appointment?

Mr Tyelela: Yes, I would agree.

Mr Mileham: Would you agree that the influence of the State Security Agency has increased at the Office of the Public Protector since her appointment?

Mr Tyelela: Yes. As I say, for example, the secondment of their official that could be seen as increasing the influence of SSA to the institution.

Mr Mileham: Okay. I want to draw your attention so let's talk about garden leave for a moment. Is that not just a suspension by another name?

Mr Tyelela: Yeah. That could be so, yes, because I mean, you're not at work, you're suspended, but as you say it's another name.

Mr Mileham: Okay, so should it not follow proper human resources and disciplinary processes?

Mr Tyelela: That's correct. That is why we as HR were opposing garden leave because our policies don't provide for that.

Mr Mileham: Okay, at paragraphs 107 to 109 of your affidavit, you refer to the sanction imposed on Ms Mogaladi and Ms Sekele. At paragraph 109 you say that the Public Protector elected not to implement the sanction imposed by the disciplinary process, but rather to dismiss these employees. Now what's your opinion as a Human Resources practitioner? Is the action taken by the Public Protector in electing to dismiss those employees, in other words to change the sanction completely, is that legally defensible?

Mr Tyelela: No, it's not. That is why our advice was to PP was that if she was not happy with the sanction of the chairperson of disciplinary hearing, then the request that the institution could take was reviewing the sanction. Because our disciplinary code did not provide for the executive authority changing the sanction of the chairperson.

Mr Mileham: Okay, at paragraph 65, you point to the Public Protector’s behaviour in dismissing Ms Mosana without any process. Was it common practice for Adv Mkhwebane to overrule HR in disciplinary processes?

Mr Tyelela: No, it was the first time that it happened. That is why…

Mr Mileham: But you've just said that it happened again with Ms Mogaladi and Ms Sekele?

Mr Tyelela: No, I'm saying that one was the first one that she did.

Mr Mileham: So what I'm asking is, did this become a common practice?

Mr Tyelela: Yes, as I indicated earlier, we advised now it's up to the PP to take the advice or not to take the advice.

Mr Mileham: Mr Tyelela, was there a culture of fear at the Office of the Public Protector? Were the staff scared of being dismissed or of receiving an audi letter or of disciplinary processes?

Mr Tyelela: Yes.

Mr Mileham: Mr Tyelela, on a completely separate issue. Do you vet people in senior positions before their appointment? Do you check their social media, their Twitter, their Facebook, etc.? Do you do check those social media platforms?

Mr Tyelela: Yes, we do. We have a service provider that does that for us.

Mr Mileham: Okay, I'm going to read you a statement and I'm going to ask you if and, Chair, I'm not trying to ambush anyone. I really am not. But this is a statement on social media; it's in the public domain if that's okay with you. Can I go ahead?

Chairperson: We don't have it. We don't have it so it would be unfair.

Mr Mileham: Okay. All right. I'll leave that then, Chair. Mr Tyelela, my last question to you. Would you agree that the Public Protector is meant to be impartial? Therefore, any suggestion of the role of political advisor raises questions over that impartiality?

Mr Tyelela: Yes, the legislation requires the PP to be impartial. That is correct. On the issue of advice, I really don't know what a Special Advisor advises to PP. It's difficult for me to respond to that question.

Mr Mileham: Sorry, my question wasn't about a particular person it was whether a political advisor raises questions of that impartiality or of her partiality in that case? I'm not talking about the Special Advisor. I'm asking if she has a political advisor, does that raise questions about your impartiality?

Mr Tyelela: I suppose it would.

Mr Mileham: Thank you very much. Thank you, Chairperson.

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

Mr X Nqola (ANC): Thank you very much, Chair. Just a few issues from me. Good afternoon, Mr Tyelela.

Mr Tyelela: Good afternoon, Hon Nqola.

Mr Nqola: In paragraph 25, part of the sentence that you depose there is that you were not in favour of the decision to place Mr Neshunzhi on garden leave. What were your reasons not to be in support of that decision?

Mr Tyelela: Because our policies don't provide for such a leave.

Mr Nqola: Thank you that was short and brief. From paragraph 60 to paragraph 87, you detail the event of what happened between yourself, the Public Protector and the former spokesperson. In the tone you are using there you are equally saying, you have actually tried to convince the Public Protector not to proceed with the fact that, Chair, the former spokesperson must go home and finish her notice at home.

Mr Tyelela: That is correct.

Mr Nqola: Is it your conviction that what happened that day, which is detailed from paragraph 60 to paragraph 87 constitutes unfair dismissal or constructive dismissal or unfair labour practice?

Mr Tyelela: That is correct, that is why I had to intervene and stop it from happening.

Mr Nqola: Okay. Do you think that your advice having been ignored has amounted to public funds being used in a process that could have been prevented?

Mr Tyelela: Well, that advice was not ignored. I asked Public Protector that she must let us deal with the matter. She let us dealt with matter. So that particular advice was not ignored.

Mr Nqola: Chair, Adv Mpofu is accusing us. Now let's continue like this, Mr Tyelela. I understand it to be a workplace culture that we call each other through the positions we hold in that particular organisation / institution. For example, in the case of a local municipality, the mayor is the mayor, speaker the speaker. In a space of the MECs the MEC, the Minister is the Minister, the Public Protector is the Public Protector. Now in an event I call my senior by their ID name, does it then constitute a dismissible offence?

Mr Tyelela: I guess you asking for my view on this particular one?

Mr Nqola: Yes, you can bring your view.

Mr Tyelela: It would depend on the context. For example, we call Public Protector ‘PP’ in the office. I wouldn't know the context where Ms Mosana called her by her first name. So the context is important. Which context I don't know. It's difficult to respond to that question.

Mr Nqola: Have you ever worked in a corporate services or human resources environment before?

Mr Tyelela: Yes, I have.

Mr Nqola: Now in your affidavit, it looks like between the end of 2017 to 2019 there's been a lot of movement of the labour force. Be it through audis, be it through suspensions, be it through dismissals, be it through demotions, be it through investigations against, be it through their work laptops being confiscated and all that. In your experience in this corporate services or human resources field, has this kind of exodus ever happened or you have ever experienced this kind of a busy traffic in corporate services or human resources?

Mr Tyelela: No, I must say that it was quite new and unusual.

Mr Nqola: Okay, the last issue Chair, which I think I'm just raising for the benefit of the Committee is that Mr Tyelela is correct. The Deputy Public Protector is recruited by Parliament and Parliament does take them to the State Security Agency for clearance before. If I may just make an example, having been part of the panel that was doing interviews and the process towards the appointment of the incumbent Deputy Public Protector. What we did, we did not take everyone who applied to the clearance process because it would have taken much longer. We have taken only those whom were shortlisted to get that clearance. I want to assist even Hon Gondwe on the questions she was trying to pose. Thank you very much. Chair.

Chairperson: Thank you, Hon Xola Nqola. I now recognise Hon Boyce Maneli. You did not raise your hand.

Adv Mpofu: Chair, that is unparliamentary.

Chairperson: Adv Mpofu, you are not recognised. He is being provoked. Hon Boyce Maneli.

Mr B Maneli (ANC): Thank you, Chair. Greetings to Hon Members, Public Protector and legal representatives, evidence leaders and greetings to our witness, Mr Tyelela.

Mr Tyelela: Good afternoon, Hon Maneli.

Mr Maneli: Point 10 in your affidavit, Mr Tyelela. I'm not sure if you can remember and share with the Committee on the part on what was said to be the mandate as you look at reviews, whether there was a guide, that anybody would be able to follow that you can be inducted in, that whenever you look at labour or other litigation, that there is a guide that complied with in exercising discretion to review or not to.

Mr Tyelela: Okay, what I remember was that the institution will review what challenges its mandate.

Mr Maneli: If I may repeat, Chair, I’m actually asking the mandate. Whether this has been clarified, that there's a guide if there's a matter to be reviewed, this is what it would mean when you say challenging the mandate. Because if that is not done in exercising discretion, I can take any matter on review on the basis that there's no guide. The point I'm asking, was this just verbal? Or is there something that is there which guides everybody and therefore you can test against it? I think that's the simplicity of the question, Chair.

Mr Tyelela: Okay, I'm not aware of the existence of any guide to that effect.

Mr Maneli: Will it then be correct, through you Chair, to say then the reliance would have been more on the discretion of the PP as the last person to make such decisions?

Mr Tyelela: That would be correct.

Mr Maneli: If we can go to paragraph 46 of your affidavit. The point to raise there is that you say the top security clearance matter was not in the CFO advert. Does this mean it was a lapse on your side to enforce a policy that exists or was it part of the norm there would be positions that may have not been subject to this top security clearance issue? I’m raising the matter because a witness appeared before the Committee, who raised a similar matter that it would not been an issue until the 2017 regime was coming up.

Mr Tyelela: No, no, that is not correct. I mean, the clearance certificates were here before the current PP joined the institution. It did not start in 2017.

Mr Maneli: Okay, so you will then say that for all other positions, that would have been the case, but this one was probably a lapse on your side to implement your own policy?

Mr Tyelela: Not necessarily. The clearance certificate is not a prerequisite for appointment. Employees are appointed subject to, they get appointed and they start working but they go through the process. Otherwise, it would be impossible to make appointments, if we make this a prerequisite because the State Security, which does this, takes two or three years to issue a clearance certificate. It would not work to make it a prerequisite that you must have this certificate first before you start working. It's not a prerequisite; but when you are employed you start the process.

Mr Maneli: I just want to check with regards to GT14. I think the point you're making there is that this is confirmation that the then CEO, Mr Mahlangu, would have known and have been informed of the resignation and still pursued this matter, despite this information.

Mr Tyelela: That is correct.

Mr Maneli: Would you then say that any other witness, it can be Mr Mahlangu or anybody, who then says that 'I proceeded because I was not aware', would not only be unfair to Human Resources and this Committee but would have been misleading Parliament?

Mr Tyelela: Yes, that would have been incorrect because he was aware as that submission shows.

Mr Maneli: Let me get to my main question so that I complete. On paragraph 21 regarding the appointment of Mr Neshunzhi. At that time, did Mr Neshunzhi qualify and was the best candidate for the job?

Mr Tyelela: There are two processes that are involved with appointment of senior managers. One is the interview process and then the other one is competence assessment. As far as the interview process, Mr Neshunzhi was not the best candidate. But then when we consider both processes, then he came up on top

Mr Maneli: I think then the question that arises would be a few months down the line, then he is removed. Is this the norm that you'd have advertised; people respond to an advert and down the line, their skills may not be what is required; therefore send them elsewhere and get a new person in? Or it is just a matter that happened in this case?

Mr Tyelela: It does happen, but I wouldn't say it's a norm. It does not happen that regularly.

Mr Maneli: If I may ask, Chair. Mr Skosana, in your recollection, was he part of those that applied at the time Mr Neshunzhi applied and would have been shortlisted, interviewed in the same way? He being the internal candidate. In your recollection, was he part of those that corresponded to this?

Mr Tyelela: Okay, Mr Skosana was appointed from outside. He was not an internal candidate. I'm not sure if I understand the question.

Mr Maneli: I'm asking, in the interviews that you had for Mr Neshunzhi, was Mr Skosana one of those that would have applied at the time and interviewed?

Mr Tyelela: Well, I'm not sure if he applied, but what I’m sure of he was not shortlisted because he was not part of the candidates that were interviewed.

Mr Maneli: Okay, if I may then confirm about the declaration of conflict of interest. You have clarified the part about SSA not being part of this one, Mr Skosana. Is the declaration of conflict of interest really just limited to you know the person ­– or will there be some detail on how you know the person? I'm sure you'll understand the question whether there may be questions about the relationship, whether personal or other interests involved. I wanted to check whether this is really the case that, as long as you said I'm conflicted, but I can make a decision at the end?

Mr Tyelela: Yes, our process does not require details. You must just indicate whether you know the person, or you are related to a person. It does not require a member of the panel to give details of the knowledge of the person or the relationship.

Mr Maneli: No, thank you, Chair. I will disappoint you. It was the last question. Thank you, Mr Tyelela.

Chairperson: He got sufficiently intimidated. That's very good. Wow. I now recognise Hon Bekizwe Nkosi.

Mr B Nkosi (ANC): No, thanks Chairperson. Good afternoon, everybody. Good afternoon, Mr Tyelela.

Mr Tyelela: Good afternoon, Hon Nkosi.

Mr Nkosi: Mr Tyelela, I want to take you to the paragraphs on your affidavit dealing with Mr Mahlangu, from 49 at least up to 59. I'm not reading those paragraphs. You were involved several times in renewing his contract on three months and whatever period, on the instruction of the PP. Am I right?

Mr Tyelela: That's correct. Yes.

Mr Nkosi: Did you each time ask if he had cleared his encumbrance that comes from his previous employer and the lack of the top-secret requirements?

Mr Tyelela: When PP initially asked me to make an offer to Mr Mahlangu, I reminded her of the two outstanding issues that have not been resolved. That is the obtaining a clearance certificate and the matter that was in the Labour Court.

Mr Nkosi: What was the response?

Mr Tyelela: No, the response was it will be a short-term contract, hoping that we'll get this sorted out soon.

Mr Nkosi: In paragraph 57, you say that the top-secret clearance would not be provided by the SSA unless the Labour Court proceedings had been completed. Mr Mahlangu’s evidence is that he was not denied security clearance, his evidence is that it was pending. What is your view?

Mr Tyelela: Well, it depends on the interpretation of the letter because the letter was saying the SSA is not in a position to issue a clearance certificate until the Labour Court matter has been resolved. So whether you want to call it pending or it is denied, it's a matter of interpretation.

Mr Nkosi: So this issue was of concern to you

Mr Tyelela: It was a concern. That is why in all the employment contracts, we made it a condition.

Mr Nkosi: In paragraph 58 and 59, you attend the meeting with the PP, Adv Nyembe, Adv Sikhakane and one unidentified person. Thereafter, on December 19, you receive a call and you are asked to draft a response for the PP. And boom, there is a letter of resignation from Mr Mahlangu.

Mr Tyelela: That's correct.

Mr Nkosi: What happened in that meeting?

Mr Tyelela: In that meeting I was asked to explain the appointment of Mr Mahlangu. Then I explained that he was the preferred candidate, but there were these two matters that the panel was concerned about. The decision of the panel was that, though he is recommended, but with these two matters, he can't be appointed until these two matters are sorted out.

Mr Nkosi: What were the interests of these three people that were in that meeting? What connection do they have with the PPSA?

Mr Tyelela: I don't know any connection. Mr Nyembe was the PP’s Chief of Staff, I think, by that time. I don't know Adv Sikhakane, what was his connection with PP.

Mr Nkosi: Will I be correct to conclude that, his resigning is as a result of your explanation in that meeting? Will I be correct?

Mr Tyelela: I don't know, as I say, I just gave an explanation then I was excused from the meeting. I don't know what were the discussions after I’d left the meeting.

M Nkosi: But what are we saying in paragraph 59? Aren't you saying that in December, you received a call from PP saying that they're going to receive a letter and that you had to draft a response for her? What is the connection between paragraph 58 and 59?

Mr Tyelela: Well, as far as I know there is no connection. I don't know if it was connected. I wouldn't say that. It's possible it was connected, but I cannot say that because I don't know.

Mr Nkosi: Mr Mahlangu told the Committee that he resigned because he was going to pursue greener pastures and that meant to be a non-executive director in a trust or a NPO. Do you think that he left the PPSA because of this encumbrance of lack of top-secret clearance and the decision by his previous employer to fire him for corruption and misconduct?

Mr Tyelela: Yeah, I don't want to make assumptions. I don't know.

Mr Nkosi: Okay. Mr Mahlangu came into the PPSA from around May 2018 to when he left in 2020 or 2019. There's been a lot of disciplinary cases that were proffered against employees at senior level and even at junior level. Do you think that his coming into the PPSA introduced this culture of taking people through disciplinary processes? And at whose behest was he doing that?

Mr Tyelela: Yes. Sadly, most of the disciplinaries I have done, for example, have happened during his tenure as the CEO of the institution.

Mr Nkosi: At whose behest was he doing this?

Mr Tyelela: Well, I wouldn't know that.

Mr Nkosi: You don’t know. Okay, thanks. You referred us to a number of policies of the organisation in paragraph five. Now in respect of, in particular, two people. In respect of Ms Cleopatra, the spokesperson, when the PP said to you that she doesn't want to work with this person anymore. Which of these policies would you have advised her to follow to lodge a grievance? And why didn't that happen?

Mr Tyelela: Okay, I don't get that. You say which policy I would advise PP to follow? And then you said to lodge a grievance, so I'm…

Mr Nkosi: I'm saying she comes to you, she says she doesn't want to work with this person anymore. If I were you, what I would do, I would say, ma'am, I understand what you're saying. But in this organisation, we follow procedure. If you've got an issue, raise it in terms of one of these policies that you have listed. Did you do that?

Mr Tyelela: In fact, that is what I said. That is what I said when she said that Ms Mosana must go serve notice. I said she could not do that because if you say to somebody, you must go and serve notice, you are dismissing the person. I said she could not do that. There are processes that must be followed when somebody is dismissed.

Mr Nkosi: We know that she didn't follow that. Did you ask her to regularise it thereafter?

Mr Tyelela: No, we asked her to leave the matter to us; she must no longer deal with it. We'll deal with it according to our policies.

Mr Nkosi: So you shoulder the responsibility on my behalf? Okay, fine thanks. Okay, let me just say in respect of Mr Matlawe, I'm latching on to the point made by Hon Maneli. In paragraph 28 of his affidavit, Mr Mahlangu says that he did not charge Mr Matlawe for raising an issue in the staff meeting. He later on says that he also did not institute disciplinary processes against him. He understands that Mr Matlawe left but in paragraph 101 of your affidavit, you say that he indeed instituted disciplinary processes.

Mr Tyelela: Yes, there were disciplinary processes against Mr Matlawe.

Mr Nkosi: I think that it is my submission that Mr Mahlangu misled the Committee and that must be verified with him, as to which is which between him and Mr Tyelela. Mr Tyelela, as I conclude, Chairperson.

Chairperson: That is your last point.

Mr Nkosi: Mr Tyelela, as I conclude. I think all over here, we see that the SSA is involved in the PP quite extensively – they advise, they second, they get into senior management positions, particularly very serious positions, they do the vetting for you. We learned from other witnesses that Fraser was there. Would I be correct to say that you were, in brackets, a branch of the SSA since the PP arrived? Thank you.

Mr Tyelela: Okay, SSA was involved in certain instances, so I'm not sure about being a branch or being their branch.

Chairperson: Thank you. Hon Luzipo.

Mr S Luzipo (ANC): Thank you, Chair. Just one point that is worrying me and good evening, Mr Tyelela. Yes, I want to start from the last point that Hon Nkosi raised because I think we said we are in uncharted waters. And some of these things must be a lesson particularly as far as our public service is concerned. Mr Tyelela, can I assume or endorse you as someone who, from where you are located, is someone who understood best how labour relations and human resource matters of that institution unfold?

Mr Tyelela: Yes, I believe so.

Mr Luzipo: Okay, I won't read this part, but I want to start at 64. It says, "Present was both Ms Mosana and then Chief of Staff, Linda Molelekoa. The PP came in. She was upset and indicated that she no longer wanted to work with Ms Mosana, and she did not want to be doing her work and that Ms Mosana was disrespecting her by calling her by her first name". Now what do you call that incident?

Mr Tyelela: I'm not sure if I understand the question. Well, it was a meeting where PP raised her unhappiness about the chief of staff, no sorry, about the spokesperson.

Mr Luzipo: When you read below, definitely as a public servant, we don't want to assume, I don't get something here that says you were then 'instructed'. If there was something like this, there is a process after the incident had happened, that's why I'm asking. What do you call what happened on that day in terms of the public service code of conduct?

Mr Tyelela: I'm not sure if I understand the question. On that day as I indicated in my affidavit, PP said that the issue was that she was unhappy. Then she said Cleo must go home to serve notice. That is when I intervened.

Mr Luzipo: No, but I can't find something that says she was unhappy. You said "she was upset and indicated", let's use the words that are used, "that she no longer wanted to work with Ms Mosana". That’s what you said.

Mr Tyelela: That's correct. Yes. Well upset and unhappy, to me, would mean the same thing.

Mr Luzipo: Okay, let me lead you in terms of the rules of fairness and equity and proper public service conduct. As a senior official in the public service, what should you have done? Will I be wrong to say that if it was an instruction or your understood it to be an instruction, you should have requested the Public Protector to put it in writing? According to you, if it was an instruction, wasn't it an irregular instruction? And if you believe it was an irregular instruction, does the public service not instruct you to request your superior to put that in writing?

Mr Tyelela: That could be one way of doing it. But we felt that we could, that is, correct it by taking over from the PP and deal with the matter.

Mr Luzipo: No, so you don't take it as if it was an instruction?

Mr Tyelela: You could say it was an instruction, because she actually said she must go. But we indicated that she cannot do that.

Mr Luzipo: As a senior public service practitioner, don't the rules say if that instruction, according to what you say, … because one will argue and say you then facilitated an irregular instruction that would have led to someone losing a job.

Mr Tyelela: My understanding was, is that we were correcting what PP wanted to do, which was incorrect.

Mr Luzipo: The point here is that you are a public service practitioner in human resource practice. It's not the Public Protector. It's you. I'm asking, didn't you believe that the instruction was irregular and when you facilitated it, you then, that's the action you take, is then to agree on demotion. The rules are straightforward. On what grounds, there are only two grounds you can take, gross misconduct or incapacity, as far as I know? Which human resource rules or procedure you followed as a person who is an expert?

Mr Tyelela: In terms of what PP was saying, if PP was not happy with the work of Ms Mosana, if Ms Mosana was not delivering what was expected of her, that would fall under misconduct.

Chairperson: Your last point.

Mr Luzipo: My last point is just simple. Is there any evidence you can present that you have requested a written instruction on what you believe is an irregular instruction? Even on Mr Mahlangu, I can't find anything. It's what was said to you, not what, as this Committee is …, can be evidence to be used that you acted according to what is expected of a person like yourself in the office that you occupy. That's my last point, Chair.

Mr Tyelela: I did not tell the Committee that I requested a written instruction. So there would be no evidence to that because I did not request that.

Chairperson: Okay, thank you, Mr Tyelela, and thank you, Hon Luzipo. Hon Manketsi Tlhape.

Ms M Tlhape (ANC): Thanks, Chairperson. Good evening to you, Chair, Hon Members, the PP and her team.

Mr Tyelela: Good afternoon, Hon Tlhape.

Ms Tlhape: On the spokesperson, given a chance how will you write about her performance then?

Mr Tyelela: Well, she was not working with me, I wouldn't know.

Ms Tlhape: Okay, now you have indicated that on the instruction or decision that she must go home and serve notice from home, you intervened. How did you resolve that one? How did you intervene?

Mr Tyelela: I asked the PP that Ms Mosana must be excused from the meeting. Then when she left the meeting, then I did inform PP that what she just did was incorrect. She cannot do it.

Ms Tlhape: Eventually, what happened from your intervention on that one?

Mr Tyelela: Then, after the meeting we met with Ms Mosana, that is, informing her that PP no longer wants to work with her and then we will be looking at options.

Ms Tlhape: Now the options that you looked for, was it based on her performance?

Mr Tyelela: No, it was based on the fact that PP did not want to work with her, so we had to, one of the options, for example, was to move her from the Private Office to somewhere else.

Ms Tlhape: Okay, so where she was moved, did it put her in a worse off position or was she on the same level?

Mr Tyelela: It was on the same level.

Ms Tlhape: Okay, I'm asking this because in her resignation letter, Ms Mosana alleges, in annexure GT12, that she ultimately resigned because of intimidation and harassment. What is your take on that one?

Mr Tyelela: Well, I don't know that. From the HR side, how we handled it, there was no intimidation, harassment. It could have been from somewhere else, but not from the HR side.

Ms Tlhape: As a custodian of human resource management, according to your knowledge, will you say to what extent were the human resource management policies adhered to in the PPSA?

Mr Tyelela: Generally, or in this particular instance?

Ms Tlhape: Generally, because all these witnesses that has been coming here alleged that procedures or policies were not followed. Now you are here today, the custodian probably of human resource management, to what extent have your human resource management policies been adhered to in PPSA?

Mr Tyelela: We try to adhere to and advice other managers or people in the institution to adhere to them.

Chairperson: Thank you, Hon Tlhape. Mr Tyelela, if I can get three issues that you can assist me with to help me understand better. Hon Mileham asked you a question about the view that securitisation of the Office happened at the arrival of the Public Protector Adv Mkhwebane, and you answered that in the affirmative. The first thing I want to know that you can assist this Committee with, what are the features of a securitised institution?

Mr Tyelela: One example I can make is that we did not have a standalone security management unit. It was part of facilities and logistics, then when PP came it became a separate independent unit with a senior manager. There was no senior manager before in security. That is one example.

Chairperson: Is that all?

Mr Tyelela: Working with SSA, for example, the secondment of official from SSA, that would be one that could be another example. The issue that was raised by one Member about the vetting, my understanding is that vetting is done by SSA only, I may be wrong but that is my understanding. I would not regard that as securitisation, because my understanding is that only SSA does vetting for employees in public service.

Chairperson: So the example you have made, are you of the view that you want, therefore, this Committee to believe that the Public Protector South Africa under Adv Mkhwebane was securitised because of the example you're making?

Mr Tyelela: I would say the security function was elevated, because it was not a separate unit before. Then after PP joined, then it became a separate unit with a senior manager. Whether that is a securitisation, I don't know. But it was definitely elevated.

Chairperson: You cannot know. You did say that it was securitized. I would not accept a no. You answered that in affirmative. And I'm only asking you to assist this Committee so that we understand these features of the securitised institution.

Mr Tyelela: That's correct, Chair.

Chairperson: What is correct?

Mr Tyelela: That it was a securitised, because of this example I've given,

Chairperson: Okay, if I then say, that would not be my understanding of a securitized institution, because the example you have made would be essential in an institution that deals with critical information. What would you say?

Mr Tyelela: Well, I'd say people would have different interpretations of what securitisation mean. I would agree that any other person would have his or her own different interpretation.

Chairperson: Okay. From the HR perspective, you being at that level, HR being a support service to other functions in that institution. Was there a process for the appointment of consultants? Did you have a defined process for how consultants were appointed, because that would have been an HR function?

Mr Tyelela: Consultants most of the time are appointed through the supply chain management process, not HR.

Chairperson: And so HR would not know that there's a service provider in this institution, even if it's done by supply chain management, would not know about that?

Mr Tyelela: We would know.

Chairperson: So which one must I take?

Mr Tyelela: No, no, what I was saying is that consultants are not appointed through initial HR process; they are appointed through an SCM process. So HR would know, that is, in certain instances because for example, I would be a member of be it the special specification committee or be it an evaluation committee or be it adjudication committee. I would know through those processes.

Chairperson: Okay. Again, as an HR person, were you aware that staff were complaining that they were going without sleep in PPSA?

Mr Tyelela: Yes, I was aware.

Chairperson: Were you aware?

Mr Tyelela: Yes, I was aware.

Chairperson: What steps were taken?

Mr Tyelela: One of them is the wellness one, that is one, where staff were encouraged if they experience a challenge, they could just consult ICAS for assistance.

Chairperson: Okay, maybe the last point. One of the things that this Committee must check is to test the competency or incompetence of the incumbent Adv Mkhwebane. I just want to check from you, from an institution point of view, are there at least one or two things you would share with us as homework for this Committee that are in the institution, which will render this Public Protector and future Public Protectors incompetent, as a result of weaknesses in the institution? Can you share that with us? Or is the institution in perfect shape?

Mr Tyelela: No, the institution is not in perfect shape.

Chairperson: Yes? So what is that one or two things that you think we must, after all we are doing, we must attend to?

Mr Tyelela: Probably what I would say is that when Parliament appoints a Public Protector, I think one issue that probably the Committee should focus on is the management and leadership competencies of that person.

Chairperson: So the issue would be the management abilities and competencies of the incumbent Public Protector and not the support functions of the institution?

Mr Tyelela: Well, normally the tone is set from the top. It's important that the leadership should be in a position to guide and lead the institution. I think that is critical for me.

Chairperson: Okay, thank you Mr Tyelela. We're almost there. But at this point, I'm going to ask Adv Bawa in terms of directive 6.16 and 6.17, if there's any question you want to pose to the witness?

Clarification by Evidence Leader

Adv Bawa: I have two, Chair. Mr Tyelela, I wasn't sure if I understood your response in respect of Mr Samuel being off ill all the time so he couldn't be served with charges in the period prior to March 2020 from 2017. I would like to put on the screen the manager leave report, reflecting his sick leave from the period March 2018, roughly for that year up until March 2019. The ones in highlight reflect.

Adv Mpofu: I'm sorry, Chair. I’m sorry Adv Bawa, I just wanted to know if this document can be identified, please?

Adv Bawa: It's a management leave report for Mr Samuel for the financial year March 2018 to March 2019, and it's at 1514, Bundle F 83.

Adv Mpofu: Thank you so much. Thanks. Sorry, Chairperson.

Adv Bawa: Mr Tyelela, you're probably more familiar with this form than I am, but would you agree that it doesn't show Mr Samuel to be off sick for lengthy periods of time in that financial year? Would you agree with that?

Mr Tyelela: Yes, Chair. Yes.

Adv Bawa: When you indicated that you endeavoured to serve charges on Mr Samuel, and he knew about that. When precisely was that, Mr Tyelela?

Mr Tyelela: Well, I don't know the exact period when that was, but I know that there were attempts that they made to serve him, that is the judges. I don't know, the exact period.

Adv Bawa: We will endeavour to put that before the Committee once when you are able to ascertain that.

Mr Tyelela: Yes.

Adv Bawa: Okay. Then, in respect of Mr Samuel, he was reporting to Mr Ndou at the time, correct?

Mr Tyelela: That's correct.

Adv Bawa: Are you aware that his payments for his travell and accommodation to attend a criminal court was being paid for by the PPSA?

Mr Tyelela: No, I'm not aware.

Adv Bawa: Okay. If he did make a disclosure of his conviction to the PPSA, he would do so via his immediate line manager. Would you agree?

Mr Tyelela: That's correct. Yes.

Adv Bawa: So you might not know about it, but he could very well have made the disclosure?

Mr Tyelela: Yes, I may not know about it, because it would not necessarily be made to me.

Adv Mpofu: Chairperson?

Chairperson: Just pause, Adv Bawa. Adv Mpofu?

Adv Mpofu: I wanted to ask, is it the version of the evidence leaders that Mr Samuel did not know about the… or rather that PPSA knew about his conviction?

Chairperson: I hand over to Adv Bawa.

Adv Bawa: I could say, never ever am I going to tell you what the PPSA’s version is on anything, Mr Mpofu.

Adv Mpofu: I'm asking with my tongue in cheek, as you might imagine. But I'd like an answer.

Adv Bawa: Can you ask the question again?

Adv Mpofu: Yes, from that question. I'm sorry, Chairperson. From that question I'm saying is it the version of the evidence leaders that Mr Samuel disclosed his conviction to the PPSA?

Adv Bawa: Let me put it to you this way, Mr Mpofu. I had a recollection that Mr Samuel had said something to this effect in his evidence. I can't recall that offhand. I've now, and I don't want to give evidence. Mr Ndou is coming tomorrow. Let Mr Ndou confirm whether Mr Samuel had disclosed it to him or not. That's probably the best.

Adv Mpofu: Thank you, Chairperson.

Chairperson: Thank you, Adv Mpofu. Conclude, Adv Bawa.

Adv Bawa: Yes, thank you. That's it.

Closing remarks

Chairperson: You're done? Thank you very much, Adv Bawa. Mr Gumbi Tyelela, we have now reached the end of our session. Do you have anything for the Committee?

Mr Tyelela: No, Chair. I don't have anything else to say.

Chairperson: I didn't get that.

Mr Tyelela: No, I did not have anything to say.

Chairperson: For your final comment?

Mr Tyelela: No, I don't have any comment. Just to thank you for the opportunity to come to the Committee and have my say.

Chairperson: I can see you’re just ready to go. Thank you very much, Mr Tyelela. On behalf of the Committee, we want to thank you for availing yourself today and your contributions in answering questions from the evidence leader, from Adv Bawa and Adv Dali Mpofu, and as well as the Members. Hopefully what you have placed in this Committee is going to be of assistance to the Committee when it does its own deliberations and making a report. So you are now for formally excused; that's where your day ends and enquiry session with the Committee. Thank you very much. Members and colleagues, I want to thank all of you. The meeting is now adjourned, see you tomorrow at 10.

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