PP Inquiry day 21: Reginald Ndou

Meeting report

The Chairperson opened the hearing and welcomed those present. He asked for patience whilst the witness was placed in receipt of the virtual platform link and for him to get onto the platform.

Ms Fatima Ebrahim, Parliamentary Legal Advisor, asked the witness to state his full name for the record.

Mr Ndou stated his full name for the record.

Ms Ebrahim stated that Mr Ndou had 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 the Committee as a witness and to answer questions in respect of the Committee’s enquiry into the removal of Public Protector Adv Mkhwebane. By law, Mr Ndou was required to answer fully and satisfactorily all the questions lawfully put to him and to produce any documents required in connection with the subject matter of the enquiry, notwithstanding the fact that the answer or document could incriminate or expose him to criminal, civil proceedings or damages. Mr Ndou was protected in that evidence given under oath or affirmation before a House or Committee could not be used against him in any court or place outside Parliament, except in criminal proceedings concerning a charge of perjury or a charge relating to the evidence or documents required in these proceedings. In terms of section 17(2) of this Act, a person who wilfully furnishes a House or Committee with information or made a statement before it which was false or misleading, committed an offence and was liable to a fine or imprisonment for a period not exceeding two years. Mr Ndou was asked to take an oath or affirm that the evidence he was about to give was truthful.

Mr Ndou indicated that he would take the oath.

Ms Ebrahim asked that Mr Ndou raise his right hand and repeat the oath, which she read out.

Mr Ndou stated that he swore that the evidence he would give would be the truth, the whole truth and nothing but the truth.

Witness: Mr Lufuno Reginald Ndou

Evidence Leader Adv Nazreen Bawa: Good morning, Mr Ndou.

Mr Ndou: Morning Adv Bawa.

Adv Bawa: Mr Ndou, you deposed to an affidavit to which they are several annexures. Just for the Committee's information, Mr Ndou was in the Eastern Cape at the moment and he hasn't been able to print a hard copy. He's working from an electronic version, which may cause some delay in answering of questions. Your affidavit is going to be on the screen to assist in this process. In paragraph two of the affidavit and for the record purposes, it's located in Bundle B and it's number 20 on page 3466. You served in the Office of the Public Protector for a period of 19 years in various capacities, correct?

Mr Ndou: Correct.

Adv Bawa: And you had commenced employment in 1999 as a senior investigator, you were promoted as the Provincial Representative in Mpumalanga, you then return to Head Office in 2007 where you headed the Outreach Branch, you subsequently moved to the Service Delivery Branch, and then you were transferred to Provincial Investigations and Integration at Head Office in the capacity of an executive manager. Is that correct?

Mr Ndou: Correct.

Adv Bawa: You resigned on 1 November 2018?

Mr Ndou: Correct.

Adv Bawa: Right. And that's effectively your 30-day notice period, after which you leave the employ?

Mr Ndou: Correct.

Adv Bawa: Now you also served in the capacities of Acting Chief Executive Officer on an occasion in the period from 1 December 2016 to 31 January 2017, correct?

Mr Ndou: Correct.

Adv Bawa: And the evidence leaders approached you to provide evidence in respect of this matter, correct?

Mr Ndou: Correct.

Adv Bawa: And we provided you with certain files – well let’s take this back. You have not got access to the files and correspondence and documentation from when you left the employ of the Public Protector, correct?

Mr Ndou: Correct.

Adv Bawa: And so, we had provided you with certain emails, reports, and documentation. Correct?

Mr Ndou: Correct.

Adv Bawa: And you had indicated to us that in some respects, your recollection isn't as what it should be given the time period that has elapsed?

Mr Ndou: Correct.

Adv Bawa: Right. Especially when it comes to details of the contents of reports. correct?

Mr Ndou: Yes, correct.

Adv Bawa: Now, we had specifically asked you in respect of paragraph five to take us through the operation of provisional reports and section 7(9) notices, and you set that out in paragraph five, and the Committee's heard evidence on the process of how provisional reports were initially issued subject to confidentiality embargoes, but that that system was changed precisely because these reports got leaked, correct?

Mr Ndou: Correct.

Adv Bawa: Right. And then we had what was determined to be section 7(9) notices, which are issued in terms of the Act to implicate the parties and together on that section 7(9) notice they would then be provided with portions of the evidence or the information that would be relevant to their interest when they are implicated, correct?

Mr Ndou: Yes, correct.

Adv Bawa: Can you tell us are 7(9) notices dispatched to implicated parties, where there are adverse findings against them or only where there are adverse findings against them insofar as there is an expectation under the remedy that they are meant to do something?

Mr Ndou: Section 7(9) notices are dispatched to any person against whom adverse findings would be made.

Adv Bawa: So it's not dependent on the remedy, or what relief is going to be sought in the remedy?

Mr Ndou: Not necessarily. It’s to give the other party, against whom adverse findings would be made, an opportunity to respond to the findings that might be made.

Adv Bawa: You also point out in your in your affidavit that there are two methodologies that you've come across that get used when 7(9) notices are issued. Can you explain that to us? It’s in paragraph seven of your affidavit.

Mr Ndou: Yes, it would depend on the specific investigator. For example, some would go straight to drafting a section 7(9) whereas others would start with a draft report which would make it easier than to extract a section 7(9) notice, but it depends on the drafting style of an investigator.

Adv Bawa: And 7(9) notices should be quality assured before they go out, is that so?

Mr Ndou: Yes, they should.

Adv Bawa: And they should be considered by, among others, the quality assurance officials and the PP who is generally the person who signs the 7(9) notice?

Mr Ndou: Yes.

Adv Bawa: Right. And the investigator would craft the 7(9) notice and at the bottom of paragraph seven, you would say that there would be input from the investigators, manager, executive manager, the task team, or the legal services, correct?

Mr Ndou: Yes, it would go through all these people, yes.

Adv Bawa: And once submissions are obtained pursuant to these section 7(9) notices, that would invariably result in reports being amended, or reports drafted in a particular manner?

Mr Ndou: Yes, the amendment would depend on whether there is information that would change what was contained in the section 7(9), but if there isn't then it would go to finalising the report.

Adv Bawa: Now, we're going to be dealing, Mr Ndou, specifically and only with the Vrede investigation today, right?

Mr Ndou: Yes.

Adv Bawa: And you can recall that the matter came up to Head Office in September or October 2017. Can you maybe explain to the Committee the context of that?

Mr Ndou: My recollection, Adv Bawa, was that the investigator was investigating the matter, Adv Cilliers, was instructed to bring the file to Head Office, and that's what happened during I think it was late September or late October, but it should be during one of those months. Yes.

Adv Bawa: And there was a meeting. Can you tell us who was at this meeting?

Mr Ndou: Yes, we then had a meeting in the CEO's boardroom, it was myself, the Public Protector (Adv Mkhwebane), her secretary (Ephraim Kabinde), the senior investigator who investigated the matter (Adv Cilliers), and Adv Mlonyeni, who had assisted Adv Cilliers in the investigation.

Adv Bawa: Right. In paragraph eight of your affidavit, you say at this meeting, it was decided that the matter would be finalised by Provincial Investigations. What was your understanding?

Mr Ndou: My understanding was the file would then be handed over to my branch, which is PII, and then we would be responsible for making sure that the report is finalised and then signed off.

Adv Bawa: And what did that finalised mean? What was the job going to entail?

Mr Ndou: It was to quality assure the report since it had gone through the Think Tank, and if we were to identify any gaps then we would need to plug these gaps.

Adv Bawa: By that stage, the section 7(9) notice had already been issued, correct?

Mr Ndou: That's correct.

Adv Bawa: And at this meeting in the boardroom, what were you specifically concerned about?

Mr Ndou: On the day, all we did was to look for receipts for purchases that were done in respect of the Vrede Project. That was the only task on that day as far as I can recall.

Adv Bawa: Why were you looking for that, Mr Ndou?

Mr Ndou: My recollection, Adv Bawa, was that the Free State Office indeed indicated that they could only obtain nine receipts for payments that had been done, and those were in respect of cattle. As for a lot of other purchases, there were no receipts. So that is why we then had to look at the file and see what receipts have been provided.

Adv Bawa: It just struck me you were the Executive Manager: PII at the time. So the Free State would have been reporting to you, was that so?

Mr Ndou: Yes.

Adv Bawa: And who was dealing with the file in your division?

Mr Ndou: At some point, it was my second in charge, Mr Mothupi.

Adv Bawa: And he was the one who Mr Samuel them were reporting to?

Mr Ndou: Yes, they were communicating and reporting to him directly on this matter.

Adv Bawa: When you had this meeting in the boardroom, were you involved? Were you occupied with dealing or drafting the report at all?

Mr Ndou: You mean on the day of the meeting?

Adv Bawa: Yeah.

Mr Ndou: No, we did not even look at the report itself, as far as I can recall.

Adv Bawa: And you had a recollection that the PP hadn't looked at it at all yet? Or let me rephrase that. All you could recall was the request for the receipts file. Can you just relate that?

Mr Ndou: Can you please rephrase Adv Bawa so that I get your question very clearly?

Adv Bawa: Paragraph 11. Sorry. The meeting continued and you recall at some point that Public Protector requested the receipts file from you or Mr Kabinde.

Mr Ndou: Yes, that's my recollection. Yes.

Adv Bawa: Right. And did you have all the files and the evidence with you there on the day?

Mr Ndou: My sense, Adv Bawa, was that Adv Cilliers brought the whole file.

Adv Bawa: Right. You then left the office and you receive a phone call. Can you tell us about that phone call?

Mr Ndou: Yes. On the very day that we had a meeting in the CEO's boardroom, I received a call on my cell phone from the Public Protector. I recall that it was a very short phone call. And she indicated to me that as far as she was concerned, Adv Cilliers was doing the bidding of the DA in this matter, and that she was then working for the DA. She also indicated to me, and her words to me were personally she would be happy if there will be no adverse findings in this matter.

Adv Bawa: And where were you?

Mr Ndou: My recollection is that I was already driving home.

Adv Bawa: Approximately what time of the day would that have been?

Mr Ndou: It would have been after 16h30.

Adv Bawa: Okay, and tell me how did you know – in paragraph 12 you say she called you from her cell phone – how did you know it was from her cell phone?

Mr Ndou: Because when a call comes through on your cell phone, you can see who the person is who is calling.

Adv Bawa: And had you by then already considered the evidence presented or provided by the Free State?

Mr Ndou: Not yet because we just received the file on the very day.

Adv Bawa: Right. And what did you think of the comments that were made to you?

Mr Ndou: For me, they were surprising because what the Public Protector is enjoined to do in terms of the law and the Constitution is to be impartial and independent. And if you say to me you will be happy if there are no adverse findings, you are actually saying that you'd be happy that we then disregard whatever the evidence says in a specific file. That is what it meant to me.

Adv Bawa: Okay. And did you inform anybody of this?

Mr Ndou: I shared it with my team afterwards and I recall also, when I was in Mpumalanga for some matter, sharing it with Mr Botromia Sithole. And if I recall correctly, I shared it with another senior investigator in the Durban office, Mr Sikhakhane.

Adv Bawa: And what was the basis?

Mr Ndou: We were actually discussing other matters that were in the office. In the KwaZulu-Natal office, for example, we had been discussing a matter where I had taken a decision based on the delegation that was given to me to review a matter. The matter didn't die even after I reviewed it and so on. So I shared this sentiment with Mr Sikhakhane. When I was in Mpumalanga with Mr Sithole, we were also discussing other matters. For me, I felt I needed to just indicate to them a discussion that I had with the Public Protector.

Adv Bawa: And did you inform Adv Cilliers about this as well?

Mr Ndou: Yes, I did.

Adv Bawa: Did you understand what was relayed to you to be an instruction?

Mr Ndou: For me, I understood it to be a more a desire than an instruction. And that's how I related it to everyone that I shared it with.

Adv Bawa: And was it ever repeated to you again?

Mr Ndou: No, it wasn't.

Adv Bawa: Okay. I'm going to take you through…you were away from the Office during the period of April to August 2017. Correct?

Mr Ndou: Yes.

Adv Bawa: And you returned in early August?

Mr Ndou: Yes, I returned around 7 August.

Adv Bawa: Right. Now you are cc’ed and copied into a number of emails, and I'm going to take you through those as we go along, and we don't necessarily need but we'll try and put the annexures up as they come to the screen. The first one is a version of the Vrede report that is provided to you under copy of an email dated 11 August 2017, and LRN1 is the email. The email below shows that the report is actually provided by Erika to Sello Mothupi, and it says “Attached. Will sit with team early tomorrow to double check and complete certificate.” Can you say for the Committee what is that certificate?

Mr Ndou: It would have been a certificate certifying that the originator of the report, which in this case would be the Free State Office, is satisfied that they've done a proper job in terms of quality assurance, and it's fit and proper to be sent over to the next level that can look at it.

Adv Bawa: Okay, so this comes to you and attached to that is a report which is annexed LRN2. Now Mr Ndou, these copies of the reports were provided to you by us as evidence leaders, correct?

Mr Ndou: Yes. Correct.

Adv Bawa: And do you have a recollection of the details of the report in any way? In the sense that would you know what changes were made when and how things came about?

Mr Ndou: I wouldn't recall those details, no, because these reports went through a lot of reiterations.

Adv Bawa: And so the purpose of putting these reports before the Committee was simply to show that these were the reports that you would have had been privy to because you were part of the emails?

Mr Ndou: Yes, correct.

Adv Bawa: At LRN3, there is an email dated 21 August, which says, “Formal report Vrede ERC correction 17 August Checked Free State 21 August” and it says “Dear Sello, Corrections made per TT and discussed with team this morning. Thanks, Erika.” What is TT?

Mr Ndou: That would be the Think Tank, Adv Bawa.

Adv Bawa: Right. And so would it be fair to say that this is a version of the report that has then come back after the Think Tank process to the team?

Mr Ndou: Yes, it would.

Adv Bawa: And that report one sees at LRN4. Then if you go to LRN5, you see an email that starts at the bottom of the email, where Mr Nemasisi says, “Herewith the attached report with my comment and cosmetic track changes. Please check whether the remedial action regarding the conduct of the HOD should be referred to the premier or relevant MEC.” And then if you go up, Ms Cilliers says, “Attached corrected. Please note that in terms of the Public Service Act the HOD of a provincial department reports to the premier of a province. We confirmed in a meeting with the MEC that this authority was not delegated to him.” We are now on 7 September 2017. And then, on the top of the email, we see on 8 September, you provide that report to Adv Mkhwebane and cc the secretary. Correct?

Mr Ndou: Correct.

Adv Bawa: Right. And attached to that email is the report which one finds at LRN6, correct?

Mr Ndou: Correct.

Adv Bawa: Now on the next email one finds, which is LRN7, in the middle you see the PP responds on the 11th and says, “Nemasisi and Ndou see my comments. Can you verify whether indeed this response capture the issues we raised with the Premier.” And it says, “Ndou please draft a letter to the Premier and refer to his response and request all the invoices or documentary proof which could not be sent to PR FS.” Can you recall what that meant?

Mr Ndou: Yes, that related to the invoices that I indicated earlier, that the Free State Office had indicated that they had not been provided with. My recollection as well is it that it might also have related to vouchers. Sorry, not vouchers, invoices. Sorry.

Adv Bawa: Okay. And do you recall, attached to this email, it says, “Nemasisi and Ndou see my comments.” Can you recall what that was?

Mr Ndou: I can't recall the comments, no.

Adv Bawa: You can't recall the comments? Can we just go to paragraph 18 of your affidavit? You say that the PP responded to your email with various comments and we've not been able to provide you with those comments.

Mr Ndou: Correct.

Adv Bawa: Right. If you go then back to LRN7, it shows that, if you go up on the email chain, you then asked Mr Samuels to send you a copy of the section 7(9) notice that was sent to the Premier?

Mr Ndou: Right.

Adv Bawa: And presumably that was to check what Adv Mkhwebane had asked you to check, correct?

Mr Ndou: Precisely. Correct.

Adv Bawa: Right. You then, if we go to paragraph 20 of your affidavit, you send an email to Mr Mothupi with the correspondence that the PP asked you to prepare setting out the information that was still needed by Mr Magashule?

Mr Ndou: Correct.

Adv Bawa: Right. And it’s annexures 8 and 9. If we go to annexure LRN9, you'll see a copy of the letter that gets sent to then-Premier Magashule, thanking him for his response and then in paragraph three the further documents that he’s requested that he sought. Correct?

Mr Ndou: Correct.

Adv Bawa: All right, and you had then asked… If we go back to the affidavit, letters to the premiers – do you send that out or does it get sent out by the Public Protector?

Mr Ndou: We would send them out. It's the signature that would then be signed off by the Public Protector herself. But we would send them out ourselves.

Adv Bawa: Okay, my apologies, you are correct. And I then indicated to you that certain draft Task Team minutes, and we don't need to go there, reflect that after the initial section 7(9) notices were issued in June, a further section 7(9) notice was to be issued. Can you comment on that?

Mr Ndou: My sense on this one, Adv Bawa, was perhaps the reference to a further section 7(9) in the Task Team minutes, would have been a reference to the letter that I had to draft to then-Premier Magashule confirming receipt of his response, as well as indicating the information that the Public Protector still required.

Adv Bawa: Right. As far as you can recollect, was any decision taken to send out a supplementary 7(9)?

Mr Ndou: Not that I can recall Adv Bawa.

Adv Bawa: Okay, and is there any impediment to sending out a supplementary 7(9)?

Mr Ndou: In terms of the law, Adv Bawa, I don't think there is any impediment. It depends on whether further information that might have new adverse findings, for example, that implicate a person, have come to light.

Chairperson: Mr Ndou, just so that you speak through the Chair, because at some point, the Chair will have to come to your defence – not to Adv Bawa.

Mr Ndou: Oh, sorry Chairperson.

Adv Bawa: Okay, and at the time, the deadline for that request was 31 October, but you hadn’t received a response yet?

Mr Ndou: Not yet.

Adv Bawa: And what then transpired?

Mr Ndou: Chairperson, I cannot recall whether we sent a reminder, but I recollect that at some point, we did receive a response.

Adv Bawa: There was also then an internal legal opinion prepared by your senior manager, Mr Nemasisi, where he expressed the view that the transaction was not a public-private partnership, correct?

Mr Ndou: Correct, Chairperson.

Adv Bawa: Can we maybe deal with that? What happens when advice of this nature is rendered?

Mr Ndou: Usually, if there is disagreement about a legal issue, for example, in the Office, then Legal Services will be required to render an opinion. And then that opinion would then be taken on board.

Adv Bawa: And if you didn't agree with the Legal Services opinion?

Mr Ndou: If there is no agreement, then perhaps an external legal opinion would have been sought.

Adv Bawa: So if changes were subsequently made to the report, in line with the legal opinion, can one accept that there was an agreement with the legal opinion?

Mr Ndou: Yes, Chairperson.

Adv Bawa: Right, if I take you to LRN11 at 3720, this is an email that you sent out, correct?

Mr Ndou: Correct.

Adv Bawa: Okay, can you maybe take us through the items in the email? “As you are aware, the Public Protector has approved the Task Team…” Can you maybe tell us the context and how this task team came to be approved?

Mr Ndou: Yes, Chairperson. At the time, PII, which was my branch at national office, the legal people were just myself and Mr Mothupi. I then approached the Public Protector to approve a task team of senior investigators who would assist PII with finalisation of the report. So this is not the Task Team that the PP created; it was a smaller task team just to look at the Vrede Dairy Project report.

Adv Bawa: And this, to your recollection, included Mr Kekana, Adv Raedani and Mr Sithole?

Mr Ndou: Yes, Chairperson.

Adv Bawa: Right, and you say the final version of the report, was that a report that was finalised? Paragraph one.

Mr Ndou: Through your Chair, that would have been the latest version of the report that was doing the rounds in the Office – not that it was a signed report, just the latest version.

Adv Bawa: And then copies of letters directed to the Ministers of Agriculture and DTI. What was that, Mr Ndou?

Mr Ndou: The Public Protector had requested PII to write to both ministers to see if their ministries or departments that fall under their ministries had dealt with projects similar to the Vrede Dairy Project in order to benchmark with a view that if they had, then we would see if they would fall in line with what those two departments had done. That was the understanding.

Adv Bawa: And did you get a response?

Mr Ndou: No, we never received a response as far as I recall, Chairperson.

Adv Bawa: Okay. And then I take it that three was a letter that had been directed to the Premier asking for further information. And four was the opinion as to whether it's a PPP or not.

Mr Ndou: Correct, Chairperson.

Adv Bawa: And then there were files of invoices that had been provided, and later in the email, you detail, if we move further down, “To write reminders to the two Ministers for her signature; her view is that what we have requested from the two ministers will give us a good idea of how a project such as the Vrede Project should be properly run, and then benchmark…” So the ministers didn't respond, and then you prepare the reminders for them?

Mr Ndou: I recollect that, yes, we would have.

Adv Bawa: Yeah. And then you still needed to do comparison of the two sets of invoices to see if payments were done. Then talk us through the last paragraph.

Mr Ndou: This paragraph relates to what I had picked up when I looked at the section 7(9), on the instruction of the Public Protector, to see if it dealt with the issues that had been raised – specifically to the Premier. In order to do that, I also had to look at the latest draft report. And I picked up that in the draft report, we were indicating that what was then in the media about the Gupta emails and how some of the monies meant for this project could have been diverted to foreign bank accounts and perhaps even paid for a wedding at Sun City, had a bearing for me, as far as I'm concerned, on the investigation that we were conducting.

Adv Bawa: Right. And were these Gupta Leaks the subject matter of the initial complaints lodged?

Mr Ndou: No, they were not.

Adv Bawa: And had they been addressed in the investigation at that stage at all?

Mr Ndou: Not to my knowledge, no.

Adv Bawa: Okay, I'm going to take you to a minute of a Think Tank meeting of 14 August 2017. If we can go there, we see on top the Public Protector’s present and you are also present on the list, on the second last line you see your name.

Mr Ndou: Yes.

Adv Bawa: And members of your task team are also present at this meeting. You see that?

Mr Ndou: Yes, Chairperson.

Adv Bawa: Now on page 31 of this minute if you can go down to that page. Here is a report back at the Think Tank meeting where Adv Cilliers, in August, presented the report. 'Points:- Gives a report back on the 7(9) notices. That the Premier had responded and that the MEC had responded by saying the Premier will respond. The report had been transferred to a New Template. And she further explained issues that had been identified. The PP suggested that we approach the Premier to engage with the Special Investigating Unit (SIU) to determine who benefited. The PP indicated that there is nothing wrong to check Gupta Leaks as well for purposes of this investigation. And that Adv Cilliers indicated that she did look at the emails in the press, went back to the financial statements to find if there is anything missing but they didn't find anything. The CEO inquired about the pictures. Mr Nemasisi indicated that it's critical to check the Gupta Leaks because you will find complainants taking reports on review. Adv Cilliers indicated that the complainant is interested in administration issues he raised in the complaint and not the Gupta Leaks'. Then go up to the third column. 'Adv Cilliers to look at the Gupta Leaks and see if there's anything that we are missing. To add the paragraph relating to the Gupta Leaks and for the report to be resubmitted'. Now, your evidence was that you had raised the issue with the Public Protector and you didn't receive a response. That was in September?

Mr Ndou: Yes.

Adv Bawa: Can you explain that in the context of it seems as if there was an instruction in August where the Public Protector was saying, look at the Gupta Leaks.

Mr Ndou: Yes, Chairperson. My sense was since in the latest version of the report, we were still sticking to the issue that there is no link between the Gupta Leaks and the investigation that we were doing. And to add to that, what Adv Cilliers herself had said at the Think Tank to say the complainant is only interested in maladministration and not the Gupta Leaks. For me, it felt like there was still a gap, which is why I then raised it again with the Public Protector.

Adv Bawa: And if we turn to LRN12, 3721, this is an email that you sent on 17 September to Adv Mkhwebane and Mr Nemasisi and you cc Mr Mothupi. Correct?

Mr Ndou: Correct, Chairperson.

Adv Bawa: And take us through that email.

Mr Ndou: In the email, I indicated that the response by the Premier dealt with the issues as raised in the section 7(9), but that they did not, in my opinion, include the kind of detail and supporting documentation that we required. I was also of the view that perhaps from the Premier's office, there was a disengagement with taking responsibility for what had happened in that project because you'd get statements like ‘it is our advice’ and so on. My sense is perhaps that was legal advice and so on. But the last paragraph is where I specifically, again, address this issue. Well, not again, where I specifically address this issue, to say that we still have this one liner which says we've noted the Gupta Leak emails, but they do not from part of the scope of this investigation. I felt that, in my view, this was dismissive of the allegations in the newspaper articles since some of the monies were alleged to have been used for purposes other than the intended beneficiaries. And I indicated that this might then be a ground for review on the basis that this is a perfunctory approach that goes against what was enunciated in the Mail & Guardian case. I also caution that as an institution, we need to have very good reasons why this avenue was not explored since we specifically make reference to the emails in the one liner that I had referred to.

Adv Bawa: What was the purpose of the reference to the Mail & Guardian case?

Mr Ndou: In that case, the court had taken the Public Protector to task for not following where the evidence leads. And that said, if you don't follow the evidence, then your investigation is not complete. That was the purpose that I referenced that case.

Adv Bawa: In other words, you say, you shouldn't simply be confined to what is contained in the complaint?

Mr Ndou: In the complaint, yes.

Adv Bawa: Did you receive a response to this email?

Mr Ndou: I don't recall receiving a response, no, Chairperson.

Adv Bawa: Did you raise the matter again?

Mr Ndou: I recall raising it at a subsequent Task Team meeting and the Public Protector then saying that the emails were not part of the investigation.

Adv Bawa: And did you discuss this with anybody at that meeting?

Mr Ndou: I recall that during a break in the meeting, Mr Tebele and Mr Nemasisi indicated to me that they had raised the matter previously at Task Team meetings and the PP had said we are not looking into the Gupta emails.

Adv Bawa: Now, in November, if we go down to paragraph 30 of your affidavit, you contemplated that if all the information required arrives, you could complete this report by January.

Mr Ndou: Correct, Chairperson.

Adv Bawa: At that stage, right? And that the Task Team could then meet and finalise the issues relating to the financials on 22 January?

Mr Ndou: Correct, Chairperson.

Adv Bawa: At that stage, further information from Mr Maimane was still outstanding. What do you recall about that?

Mr Ndou: My recollection, Chairperson, is this related to information relating to the beneficiaries and whether they had benefited from the project if I recall correctly.

Adv Bawa: Were you present at the meeting with Mr Maimane, who had come to the Office of the PP?

Mr Ndou: I was called to the meeting when it was almost done. I remember I received either an SMS or WhatsApp from Ms Nthoriseng Motsitsi saying I should please come down to the main conference room, and when I got there, the meeting was actually winding up.

Adv Bawa: Okay, so you didn't know what was being promised other than what you had been told?

Mr Ndou: No, Chairperson.

Adv Bawa: Right. And by January, had the Vrede Report been finalised already?

Mr Ndou: Not yet, Chairperson.

Adv Bawa: And then a memo is prepared. Can you recall? The memo is at LRN13 of your affidavit. Mr Kekana provides you with a memorandum on 25 January. Do you recall that?

Mr Ndou: Yes, I do, Chairperson.

Adv Bawa: Right. The memorandum is the next annexure. And it points to a number of issues that it records must still be considered, which are summarised. The Committee's been through this memo, so I'm not going to take you through it. But if we go to paragraph 32 and 33 of your affidavit, you detail what the memo records at the time as being outstanding. That Task Team still needed to consider the submissions from Mr Magashule, the internal legal opinion regarding the public-private partnership, the evidence of the beneficiaries and further evidence the DA leader had undertaken to provide which had not been provided. Do you have any memory of the specifics of what was outstanding?

Mr Ndou: No, Chairperson, I can't say I do.

Adv Bawa: You then indicate that you received an SMS in paragraph 36. Just before we go there, Mr Ndou, do you recall, was it your sense that the information in respect to the beneficiaries was important at the time?

Mr Ndou: From my discussion with the Task Team that was dealing with the matter, my sense was that given the issues that we had investigated, it wasn't.

Adv Bawa: You then received an SMS, you say, from PP asking about the progress of the matter.

Mr Ndou: Yes.

Adv Bawa: Can you more or less recall when that was?

Mr Ndou: My recollection is that I received an SMS on the 5th in the evening.

Adv Bawa: Right. And then what did you do?

Mr Ndou: The following day, I called together the Task Team to, perhaps before I go there, Chairperson. No, let me rephrase. The following day I call together the Task Team to sit with me, and Mr Matlawe also sat with us initially, in the beginning, to look at the report.

Adv Bawa: Okay, and the PP was out of the country at that time?

Mr Ndou: Yes, that is my recollection, Chairperson.

Adv Bawa: Right, and you hadn't yet received all the outstanding information. Can you remember what was missing?

Mr Ndou: I can't, off the top of my head, recall what was still outstanding, Chairperson.

Adv Bawa: Right. And you then convene the team to work on the report, correct?

Mr Ndou: Yes, Chairperson.

Adv Bawa: And then you say that on the 7th, you sent the revised draft through to the PP. You can see that from LRN15.

Mr Ndou: Yes, Chairperson.

Adv Bawa: Right. And if you go down to the bottom, you'll see on 7 February, you say at 15h40, “Attached please find the report as requested.” And then go up. You get the response on the 7th at 16h20, sent to yourself, Mr Kabinde, Ms Molelekoa, Mr Nemasisi, and Ms Motsitsi, “Issue one is confusing. Response to section 7(9) is not included in all issues in dispute. Mr Ndou and team let’s meet at 10h00 in the morning, not happy with some of the information. Nemasisi bring along your comments.” That's from the Public Protector on the 7th.

Mr Ndou: Yes, Chairperson.

Adv Bawa: So she's back in office?

Mr Ndou: Yes.

Adv Bawa: Right.

Mr Ndou: Sorry. I can't confirm whether she was back in the office; she could have sent it from anywhere.

Adv Bawa: Okay. Right, then at 17h20, if you go up, Ms Motsitsi writes an email that says, “Dear PP, I wish I could attend the meeting to assure that I'm not blamed for the sub-standard report. I will be attending the Risk Committee meeting tomorrow chaired by Mr BG Jooste, an external appointee. It is one of the governance structures and the committee will help us to curb PPSA risks.” You're not party to that email? You don't see this email? It’s not sent to you, correct?

Mr Ndou: No Chairperson, it’s not correct.

Adv Bawa: And a copy of the report annexed to it is then at LRN16 of your affidavit, which was attached to the email being the copy that you sent.

Mr Ndou: Correct.

Adv Bawa: Right. Now, you say in your affidavit at 38.3 that as far as you recall, that was your last input in respect of the report.

Mr Ndou: Correct, Chairperson.

Adv Bawa: But if you go down, the PP has asked for a meeting the following morning at 10h00. How does it come about that you're not at that meeting?

Mr Ndou: Chairperson I had applied for leave for two days, which was approved because I was preparing for an interview for the position of Vice Ombud.

Adv Bawa: And so you didn't attend the meeting on the 8th when the report was finalised?

Mr Ndou: No, I did not Chairperson.

Adv Bawa: You were not at the office at all?

Mr Ndou: No, Chairperson.

Adv Bawa: Right, and the previous evening, on the 7th at 20h20, Mr Nemasisi circulates a draft and it's annexed to your affidavit; you include it in this email. Do you look at that draft the night before? Do you get it?

Mr Ndou: I don't recall looking at it, Chairperson.

Adv Bawa: Would the email have come to you at home?

Mr Ndou: It would have come through when I had already left the office, but it would have come through to my inbox.

Adv Bawa: And where does your inbox go? To your phone or your iPad or your computer?

Mr Ndou: My understanding is it would be saved on the server until I log into the system.

Adv Bawa: Okay. The PP then communicated with you on the 8th – you recalled receiving a communication. And what did that say?

Mr Ndou: The gist of the communication, Chairperson, was to say she was unhappy that I was not in the office on a day that we were supposed to be working on a report, and this would make our working together difficult going forward, and that my leave was cancelled forthwith and I must come to the office immediately.

Adv Bawa: But you at the time had this interview and you weren't able to do that?

Mr Ndou: I was actually at the library preparing for the interview; I was not able to do it.

Adv Bawa: You then say you anticipated adverse consequences. What happened? Well, let me say this, did you respond to this WhatsApp or email?

Mr Ndou: I don't recall responding to it, no, Chairperson.

Adv Bawa: Okay, and what then transpired when you returned to office?

Mr Ndou: On my return to the office, I received a notice, what is popularly known as an audi letter, from Ms Motsitsi, who was then Acting CEO, if I'm not mistaken. To which I then responded.

Adv Bawa: And after you responded, did you hear anything further about it?

Mr Ndou: I did not hear anything further, Chairperson.

Adv Bawa: Okay. And so the report was finalised on the 8th and sent out, issued, correct?

Mr Ndou: To my knowledge, yes, Chairperson.

Adv Bawa: Was there a specific reason why the report, to your knowledge, had to go out on 8 February?

Mr Ndou: Not that I'm aware of, Chairperson, because as far as I'm aware, reports would go out in batches and there would also be a media briefing where a number of reports would be released. To my recollection, this was the only report that was released solo and during the night, so I really can't speak to why that was done but that was my first. It was my first time to come across a report being released in this manner.

Adv Bawa: Okay. And the one liner, you say, relating to the Gupta Leaks remained in the final version?

Mr Ndou: Yes, Chairperson.

Adv Bawa: And were you at any stage instructed that the investigation had to be constrained or you couldn't do anything because of financial constraints?

Mr Ndou: Not that I recall Chairperson, no.

Adv Bawa: And did the report that you had seen reflect anything to that effect, that the investigation had been impeded because of any capacity or financial constraints?

Mr Ndou: No, Chairperson.

Adv Bawa: And had any other investigation in the Office been restricted or restrained, because the PP’s Office had financial constraints that you were aware of?

Mr Ndou: Not any report that came through PII that I know of.

Adv Bawa: Mr Ndou, I’m going to come to your audi notice, or response that you sent to the notice. To do that, let's take you there because I think you should take the Committee through it. It’s at LRN19 on 3874. What was this, Mr Ndou?

Mr Ndou: It was the response to the notice that I had received from Ms Motsitsi.

Adv Bawa: Okay, and can you take us through the substance of the notice without necessarily reading all of it?

Mr Ndou: Yeah. One of the issues that I raised related to my absence on the 8th when the Vrede report was being finalised. It also indicated the efforts that the Task Team and I had gone through to finalise the report in the time that it was required. Perhaps just to indicate to the Committee, through you Chair, Ms Motsitsi had indicated to me when we were working on the report on the 6th that the Public Protector wanted to sign the report the following day, which was the 7th. And I would keep on receiving emails while we were working on the report to say the PP wants the report and I would indicate to Ms Motsitsi that we're still working on the report. The other aspect that I touched upon was the issue of complaints emanating from provinces. If we can go down a bit so that I refresh my memory, please, through you Chair, there was also an issue that was raised in the notice relating to…

Adv Bawa: Mr Ndou, just stop there because I think paragraph (a), I just want to highlight that you were in charge.

Mr Ndou: Yes, one of the issues that I raised, because I was accused of showing disinterest in my work, I had to indicate to Ms Motsitsi the span of control that was within my area of jurisdiction. And the fact that it was just myself and Mr Mothupi, through whom all reports came to me. I know there were provincial representatives as well, but all sections 7(9) notices and reports would still need to come through me and Mr Mothupi and so on. So I highlighted that and the fact that I felt that I did not have enough resources.

Adv Bawa: And subsequent to this, there's been a split into two divisions – inland and coastal. Correct? But at your time, you had all nine provinces reporting to you.

Mr Ndou: The split happened, I think, just before I left the Office, when Adv Stoffel Fourie, who was at Head Office, asked to be transferred to the Eastern Cape Provincial Office. That's when the split happened. But at the time of this memo, yes, provincial investigations were all nine provinces and regional offices under me.

Adv Bawa: Okay, and if you go further down in your notice response, you point out that you had raised an issue, that that meant that all 7(9) notices and reports from provinces had to come through you.

Mr Ndou: Yes. I was indicating to the Acting CEO the amount of work that was coming through PII. Also, I highlighted the fact that at some point in 2017, an instruction had been given that the two investigation branches at national had to issue three reports, and with provinces, we had to issue two reports per province, which meant 18 reports. So that also added to the work as well.

Adv Bawa: The Acting CEO to whom you address this letter, who was it?

Mr Ndou: It was Ms Motsitsi.

Adv Bawa: Right. You then pointed out in this notice, if we go to (b), that you also had to deal with internal reviews. What are those?

Mr Ndou: This, through you Chair, this would be if a complainant is unhappy with how a matter was finalised. Perhaps just to indicate to the Committee, if there is no formal report, then the matter would be finalised at branch level or at provincial level. So if a matter was finalised at a provincial level, and a complainant was dissatisfied with the outcome, then they could launch an internal review. And all these reviews then would come through to my office, and my team would prepare submissions on all these reviews, and then they would come to me to take a decision – whether I uphold the review or not.

Adv Bawa: Okay. And you then refer to an instruction that you must conduct file inspections at all provincial offices.

Mr Ndou: Yes, through you Chair, there was that instruction. And I recall, with Mr Mothupi, we went to the Eastern Cape and KwaZulu-Natal.

Adv Bawa: Right, and you also served as chair of the Bargaining Forum, and you attended Task Team meetings on a Friday.

Mr Ndou: Yes, Chairperson.

Adv Bawa: That was a different Task Team to the one that had been created for the Vrede report that you referred to earlier?

Mr Ndou: Yes, that would be the Task Team that was chaired by the Public Protector.

Adv Bawa: Right. You then refer to two investigators, and one investigator have been transferred to PII. Who were they?

Mr Ndou: It would be two senior investigators; it would be Mr Kekana and Adv Raedani. And the investigator, if I recall correctly, was Ms Refilwe, I can't remember her surname. But they brought their own investigation files with them as well.

Adv Bawa: And what were they investigating?

Mr Ndou: They brought files that had been placed within the Private Office because that's where they were located with their own investigation. So when they left there, when they were transferred to my branch, they brought the investigation files with them. Before that PII did not conduct investigations, we were about managing provinces and not conducting investigations.

Adv Bawa: Okay, so they were now conducting investigations as well as assisting you in managing provinces?

Mr Ndou: Yes, Chairperson.

Adv Bawa: Right. And over and above Task Team meetings, you had what's called PII Dashboards on a Tuesday to look at investigations. What were those?

Mr Ndou: Those would be our own meetings to look at how far, well to look at progress on the investigations that my senior investigators and my investigator were investigating, and also to look at reviews, how far they were with reviews, and so on.

Adv Bawa: Right, and then you point out, you refer to a backlog in (f). Can you just talk about that? There was a backlog in PII?

Mr Ndou: Yes. I was saying to the Acting CEO that given all that I had set above, obviously, there would be certain areas where some things would not move with the pace that I would have liked, given the amount of work that PII was doing.

Adv Bawa: Right, and you then pointed out that you were working on weekends, you'd worked over the Christmas holidays, and you were given an instruction for an intervention on a water crisis in Masiphumelele. Can you elaborate on that?

Mr Ndou: Yes, I was just giving an example of we had been to Masiphumelele with the Public Protector during a stakeholder engagements and there have been issues raised there. And if I recall correctly, the City of Cape Town had given certain undertakings to do something about services but there seemed, at least from the spokesperson for the people that we met with in Masiphumelele, there seemed to have been no headway. They then alerted the Public Protector and she communicated with me. I can't remember whether it was through a WhatsApp or an SMS. I was able then to intervene with the assistance of the Cape Town office. It was just before Christmas.

Adv Bawa: I think Hon Mr MGE Hendricks (Al Jama-ah) raised this issue with us at the start of the hearing and the good work that the Public Protector’s Office had done in respect of the Masiphumelele matter. On the issue, you then deal with Outreach Programmes.

Mr Ndou: Yes, one of the issues that I had to respond to was the fact that it was indicated that I was not giving guidance to provinces on Outreach Programmes. I indicated that strategically, outreach did not fall under PII; it fell under CSM – it’s Complaints and something Management, I can't remember the full name. So I was saying, I'm actually being accused of something that does not even resort under my span of control.

Adv Bawa: You then point out you approached the Acting CFO?

Mr Ndou: Yes, Chairperson. What had been happening at that point is all requisitions, whether it's for travel for anything that the province required, they had to come through me, and they would have to go to Finance to indicate whether there are funds or not. In most cases, there would be a comment from Finance to say, ‘funds not available’. So I then approached, I can’t remember whether it was the Acting CFO, to say given this state of affairs, wouldn't it be better if there is a communique to everyone, to indicate to them that we've got issues with finances so that people know, because they come to me and ask me why their requisitions are not being approved, and as far as we are concerned, our budget has not been exhausted. That's the reasoning behind this issue as I raised it here.

Adv Bawa: And the CEO then indicated that such a circular was about to be disseminated. You then requested, at the first meeting of EXCO, that they must avoid clinics where accommodation Is involved.

Mr Ndou: Yes, that was after a meeting, through you Chair, of EXCO, which was us, Management together with the CEO. We were facing financial constraints and it had been suggested at that first meeting, if I recall correctly, about clinics which would entail travelling. Mostly it would be outreach officers and they would have to sleep over because these clinics were far from where the office is located. For example, if it's the Eastern Cape office, they would go as far from the Bisho main office as possible in order to be accessible in terms of the Constitution. So that is where this is coming from. I then indicated to provinces that they should avoid clinics where accommodation is involved. Initially, we wanted them to drive in and out which means to areas nearby the office.

Adv Bawa: Right. And then you deal with the issue of leases and in 1.10, you deal with the issue of investigations, inspections. Can you talk about that?

Mr Ndou: Yes, one of the suggestions or let me say one of the discussions at EXCO that was chaired by the CEO, was to say, regarding investigations, inspections in loco should be avoided and that we should consider, in most cases, where we wanted to investigate, calling officials to our offices rather than going to their offices as well. Lastly, I indicated that as the Executive Manager for PII, I would sometimes be requested to chair alternative dispute resolution (ADR) sessions at Head Office and sometimes a matter would be a provincial matter but they involved officials who would be at Head Office. Before we had financial constraints, then the investigators involved would come to attend the ADR session, but after this, we suggested that we go ahead without the relevant investigators. That is where that is coming from, Chairperson.

Adv Bawa: And in point 11, you indicate that the amount of work that rested on your shoulders was considerable, and they should give consideration to more resources to PII above the level of senior investigator.

Mr Ndou: Yes, Chairperson.

Adv Bawa: Having said that, you tendered an apology for any impression that you had lost interest in your job. You pointed out how long you've been there and that you take pride in the Office and what they've achieved over the years and your contribution and you attached certain areas that you thought could be improved. Correct?

Mr Ndou: Yes, Chairperson.

Adv Bawa: Now, this was the response to your audi letter that you say after you provided this response there was nothing further that occurred. Correct?

Mr Ndou: Yes. Correct, Chairperson.

Adv Bawa: Now, Mr Ndou, a couple of months ago, you received a LinkedIn invitation from the Public Protector.

Mr Ndou: Yes, Chairperson. It was, if I'm not mistaken, on 25 April.

Adv Bawa: 2022, this year?

Mr Ndou: This year, yes, Chairperson.

Adv Bawa: And how did you respond?

Mr Ndou: I just accepted the invite because I wasn't sure what it's all about.

Adv Bawa: Okay. Can I ask you, Mr Ndou, you are familiar with, you've been apprised of the charges in this matter by us, correct?

Mr Ndou: Yes, Chairperson.

Adv Bawa: And charge four specifically deals with an accusation that the Public Protector had intimidated, harassed or victimised staff, or alternatively failed to protect them from the erstwhile CEO in the office, Mr Mahlangu. Can I ask you, in your experience, have you been intimidated, harassed, or victimised by the Public Protector?

Mr Ndou: Not that I can recall, Chairperson.

Adv Bawa: And have you been intimidated, harassed or victimised by the CEO, Mr Mahlangu?

Mr Ndou: Mr Mahlangu? No, Chairperson.

Adv Bawa: I don't have any further questions for this witness, Mr Chair, but I do have an issue that I'd like to raise in respect of this witness's further testimony.

Chairperson: Okay, I will allow you to raise that. Thank you.

Adv Bawa: We are aware from the evidence of previous witnesses that have been before this enquiry that at some point in 2017 – and Mr Tyelela took us through the timeframes yesterday – that Mr Ndou had faced a charge of sexual harassment at the Office, that he had been served with these charges after he had already tendered his resignation, and that there was no process that then followed because he had tendered a medical certificate for the time when the first hearing of the disciplinary process was going to occur and he subsequently left the employ of the Public Protector. We also heard evidence yesterday of him having initially been exonerated and then based on further investigations, a decision was taken that the matter would then proceed. Mr Chair, I'm raising this in the context of the following. Mr Ndou had been charged, he had not been found guilty of any offence. The issues relating to the charge and the substance of that is highly prejudicial, an invasion of his privacy, and is not material to the motion before this Committee. I am aware that the Public Protector’s team had obtained a copy of the Human Resources file from the Public Protector’s Office. Whilst I'm aware of the breadth of the approach of the Committee to the relevance of evidence before this Committee, and the unlimited ambit by which Members of the Committee have been permitted to ask questions, the approach of the evidence leaders is that the information in the ambit of that information is firstly, not material/relevant to the motion, and highly prejudicial and an invasion of the privacy of a witness who has come forward at our request, and who would face tremendous prejudice in the public domain. Mr Ndou has future plans that could be jeopardised by such information being put out on social media, etc. It's not so much the answers that he's given the questions but it's also the questions that get asked themselves. That would have an impact not only on the witness himself, but his immediate family. And we have seen how that operates. Whilst I'm not wanting to suggest that no questions can be asked in respect of this, but that firstly, consideration is given that to the extent any questions of that nature be asked, as deemed necessary by the Committee, that that be done in a closed forum, or alternatively, that it not be allowed at all.

Chairperson: Thank you, Adv Bawa. That point, so that the Committee applies its own mind on the issue, at this stage, it wouldn't concede to any of the two options you're putting on the table. But I will ask the Committee to spend about 10-15 minutes on this issue, and I will therefore excuse you, as evidence leaders, as well as the Public Protector, and the legal team of the Public Protector. So when you come back and the legal team of the Public Protector starts, the Committee would have applied its mind. That happens both physically here and as well on the virtual. It therefore means you will have extended tea break and we will be back at about 12h15. Therefore, please excuse us because we are going to have our own session and ask our legal team to give us a bit of a briefing.

Adv Bawa: Mr Chair, I may have neglected to say that I have had a conversation about this with Adv Dali Mpofu SC beforehand.

Chairperson: No, I'm excusing all of you. I'm not opening any discussion from you and Adv Mpofu. Thank you.

Adv Mpofu: Chairperson, that's unfair but what can we do? Thank you.

The Committee excused all guests.

[Committee continues in camera. Public hearing resumes at 14h15]

The Chairperson welcomed everyone that had been waiting for the Committee, which was discussing some of the issues that were placed before it. The Committee apologised for any inconvenience that might have been caused. After listening to what was placed in front of them by the evidence leader, the Committee Members had to apply their minds to their own role of always exercising their duties as a Committee of the National Assembly, which is constitutionally bound to do its work in an open and transparent manner, whilst at the same time invoking section 36 of the Constitution about limiting whatever rights and freedoms there are. Members always had to balance all of those issues. The Committee was about to go straight to the cross-examination of the witness. He handed over to Adv Mpofu.

Cross-examination of Mr Lufuno Reginald Ndou

Adv Mpofu: Good afternoon, Mr Ndou.

Mr Ndou: Afternoon Adv Mpofu.

Adv Mpofu: How are you this afternoon?

Mr Ndou: I'm okay and yourself?

Adv Mpofu: I'm fine, thanks. Okay. I don't think we are going to be very long, I'm just going to deal with… because most of the evidence that was led, including the contents of your audi letter and your workload…all that is not relevant to what is before this Committee. So I'll try and focus on the issues that are of relevance to the Committee, and if necessary, we'll also deal with issues of credibility. Do you understand that?

Mr Ndou: I do.

Adv Mpofu: Thank you. And in so doing, we’ll attempt to protect your rights as much as possible and if you feel uncomfortable, please do indicate so. Okay?

Mr Ndou: I will.

Adv Mpofu: Thank you. Alright. Now, let's start with, according to you, you served from 1999 at the PP’s Office, correct?

Mr Ndou: Correct.

Adv Mpofu: And resigned when?

Mr Ndou: I submitted my resignation letter on 1 November 2018.

Adv Mpofu: 1 November 2018, that would be about seven months or so after the release of the Vrede Dairy report, correct? It was released in February 2018.

Mr Ndou: Yeah, in February, yes.

Adv Mpofu: Alright. Now, let's just start with the 7(9) notices because you start your affidavit by explaining to the Committee what those notices entail. Now, with your experience, I think you might be of help because I think it's one of the grey areas which have kind of eluded some of the witnesses. Maybe I'm going to do it like this, Mr Ndou. Firstly, to try and locate the importance of a 7(9) notice, or rather of that section, I'll do it by kind of a comparative method. So let's start with your audi notice. You effectively abandoned ship, at least in the eyes of the Public Protector, in the hour of need, right? This is now when she was right into the final hours of the intended release of the report, correct?

Mr Ndou: That's not correct, Adv Mpofu.

Adv Mpofu: Okay, I’ll try it from another angle. It was indicated to you, as you said, by Ms Motsitsi around the period end of January / beginning of February, that the Public Protector intended to release the report shortly, correct?

Mr Ndou: I don't recall that, Adv Mpofu. That was not my evidence. My evidence, Adv Mpofu, was to say, on 6 February.

Adv Mpofu: Okay. Yes, that's the beginning of February. That's the same thing. Okay. On 6 February, you were told that the PP wanted to release the report shortly, correct?

Mr Ndou: Yes, correct.

Adv Mpofu: Yes. And 8 February, you went AWOL. You disappeared.

Mr Ndou: I did not disappear, Adv Mpofu. I had applied for leave that was approved, with very good reason.

Adv Mpofu: Okay. But let me, maybe 'disappeared' is a strong word here. You were not there at that hour of need, correct?

Mr Ndou: Yes, I was on approved leave.

Adv Mpofu: Yes. And the Public Protector basically did not know where you were. You did not tell her beforehand. When she said you must be here, you didn't say, “Well, I'm not going to be there because I'm on approved leave.” Correct?

Mr Ndou: Correct, but I informed Mr Mothupi to go in and assist with the finalisation.

Adv Mpofu: Yes, Mr Ndou. That's why I was saying from the point of view of the Public Protector. I'm going to come to your reasons why you were not there. I'm saying, just try for a minute to put yourself in the shoes of the Public Protector, okay?

Mr Ndou: Yes.

Adv Mpofu: Yeah. So you're the Public Protector. You are in charge of this investigation for all intents and purposes – you, being Mr Ndou. Correct?

Mr Ndou: Yes.

Adv Mpofu: You are aware that the Public Protector was under tremendous pressure to release this report, correct?

Mr Ndou: Yes.

Adv Mpofu: You are aware that she was being threatened with legal action by the DA and all sorts of likeminded organisations, correct?

Mr Ndou: Yes, I was.

Adv Mpofu: And you are aware that she had made undertakings in the Free State legislature that the report should be released as soon as possible, correct?

Mr Ndou: I don't think I was part of that.

Adv Mpofu: You are not aware. No, that's fine. I think Mr Samuel was more aware of that, I suppose because he was based in the Free State. But anyway, you are aware of the tremendous pressure from whatever quarters for this report to come out, correct?

Mr Ndou: Yes, and that is why I applied for leave for two days only.

Adv Mpofu: Yes, and you are aware that the report had been, basically, was three years or four years late. By the time the previous Public Protector left, it had been basically un-concluded for a period of about three to four years, correct?

Mr Ndou: Yes. Correct.

Adv Mpofu: And that the current Public Protector inherited this problem and was doing her best to deliver on it, correct?

Mr Ndou: Yes, correct.

Adv Mpofu: Yes. Now, against that background, I'm saying when you are told that this matter has now reached a critical point and the Public Protector wants to release the report, how would you feel if your lead investigator, the person who's responsible for this, is nowhere to be found and you don't know where they are basically?

Mr Ndou: My first point of call, Adv Mpofu, would have been to ask the Acting CEO to whom I report. And for me, to be honest, two days is not a long period. It could have waited for Monday and Tuesday when I was back in the office.

Adv Mpofu: So the Public Protector should have waited for you for two days without knowing where you were?

Mr Ndou: But my direct supervisor knew where I was.

Adv Mpofu: No, but for the purposes of this report, you reported to the Public Protector. You were the key person, correct?

Mr Ndou: Yes.

Adv Mpofu: And you don't understand why she would be concerned or even upset if, at that point, which you have been told about, you are not around without even the courtesy of telling her directly that you will not be there? Do you understand how frustrating that must be for a person in her position?

Mr Ndou: Adv Mpofu, the only time I was aware of the email of the 7th was when I was called by Mr Mothupi to say the Public Protector is wondering where you were. Because when I got home, I started preparing for my interview. I did not check my office emails.

Adv Mpofu: Okay, so when you were told on the 7th that she was wondering where you were, again, you didn't think it would be proper?

Mr Ndou: Sorry, on the 8th. Yes. Sorry.

Adv Mpofu: Anyway, that's fine. Even in your explanation, you did not feel it was necessary to tell the truth about where you went?

Mr Ndou: About my interview? No. And I'll tell you why. I've had experiences in the past where if you go to an interview and you're not successful, some of the people that you report to take it very personally. That is the reason that I felt I did not have to divulge that.

Adv Mpofu: But surely, even if you did not divulge the real reason, even if you didn't want to be open about that, you could have at least divulged that you will not be around. I'm sure you agree with that.

Mr Ndou: I divulged to the person I reported to, who approved my leave.

Adv Mpofu: No. Okay, you know what I'm saying. I'm saying you could have divulged that to the Public Protector, who needed you the most at that time, correct?

Mr Ndou: I could have, yes.

Adv Mpofu: Alright. Now, anyway, the point I really wanted to make is this, upset as she might have been and as I've demonstrated to you legitimately so, the step that was taken was to give you an audi letter. In other words, an opportunity to explain yourself, correct? I think Mr Ndou is frozen.

[Adv Bawa indicated that Mr Ndou was in a town somewhere in the Eastern Cape that had now experienced load shedding. She asked that the Committee adjourn as Mr Ndou was going to try and ascertain how long the load shedding was for. The Committee had a short adjournment to allow Mr Ndou to re-join the virtual platform.]

Adv Mpofu: Welcome back Mr Ndou.

Mr Ndou: Thank you.

Adv Mpofu: We broke off where I was saying to you, I was taking a different perspective on this issue of your so-called audi letter, which is this: irrespective of however upset or upsetting your conduct was, the step that was taken was in the interest of fairness, to give you a chance to explain yourself, correct?

Mr Ndou: Yes. Correct.

Adv Mpofu: And you did that, in your view, adequately, in detail, correct?

Mr Ndou: I did, yes. Correct.

Adv Mpofu: As a result of that, the matter was put to bed, correct?

Mr Ndou: Correct.

Adv Mpofu: You were never charged or implicated in wrongdoing because of your explanation, correct?

Mr Ndou: Correct.

Adv Mpofu: Right. Now, I want to juxtapose that just to explain something to you, which is at the core of this issue of Vrede. Now let's look at that as against the purpose of a section 7(9) notice. You would agree that a section 7(9) notice is also an audi letter, so to speak, correct?

Mr Ndou: Correct.

Adv Mpofu: In other words, it is intended to give the alleged wrongdoer an opportunity to explain himself or herself like you were given that opportunity, correct?

Mr Ndou: Correct.

Adv Mpofu: If that explanation is deemed to be adequate, such as the one you gave about your alleged abscondment, then it would be unfair to proceed with a negative finding, just as it would have been unfair to put you under disciplinary steps when you have given an explanation, correct?

Mr Ndou: Correct.

Adv Mpofu: Right. Now, the entire hullabaloo around this report is really, in essence, the fact that the section 7(9) notices which were issued in June/July 2017 had, among other things, the effect of explaining all the grey areas that had been identified, let's say, in the April 2017 report, correct?

Mr Ndou: I don't understand your question about grey areas.

Adv Mpofu: Okay. Let's start it afresh. In the April report of Adv Cilliers, there had been some adverse findings regarding the HOD and/or some of the political principals as well, correct?

Mr Ndou: I do not recall with respect to the April report because my recollection is that when it came out, I was actually out of the office.

Adv Mpofu: Okay, no, fair enough. But surely, having been, at some stage, the lead investigator in this, you were able to go back in time and get a historical perspective, probably dating back to the Adv Madonsela times, were you not?

Mr Ndou: The way we used to work, Adv Mpofu, is to work with the latest report.

Adv Mpofu: I see. You did not go back in time to try and situate that latest report?

Mr Ndou: No, because the reports go through a lot of iterations in the Office.

Adv Mpofu: Okay. So you were not aware that at some stage, the Premier, for example, had been implicated?

Mr Ndou: Not to my knowledge, no.

Adv Mpofu: But surely you must know that it follows. Isn't it that section 7(9) notices are only given to implicated parties?

Mr Ndou: Yes.

Adv Mpofu: Yeah. So that's why I'm saying even if you might not have known whether it’s the April or the May or whatever, but you should have known that it must mean that at some stage, the person was implicated? Otherwise, why would they be given a section 7(9) notice?

Mr Ndou: Perhaps it might be that the remedial action would have to be by the Premier himself because there was an understanding that the HOD in the Free State did not report to…

Adv Bawa: The MEC.

Mr Ndou: The MEC, yes, that might actually explain that.

Adv Mpofu: Yes, but surely… Okay. Let's go to section 7(9). That's why I wanted you to help us. I'll read it out to you quickly. Okay?

Mr Ndou: Yes.

Adv Mpofu: I'm sure you are familiar with this. Section 7(9) says, “If it appears to the Public Protector, during the course of an investigation, that any person is being implicated in the matter being investigated, and that such implication may be to the detriment of that person, or that an adverse finding pertaining to that person may result, the Public Protector shall afford such a person an opportunity to respond in connection therewith in any manner that may be expedient under the circumstances.” That's really what section 7(9) says, as you know, correct?

Mr Ndou: Correct.

Adv Mpofu: You'd agree with me that it is directed at implicated parties?

Mr Ndou: Yes, correct.

Adv Mpofu: Therefore, that's why I'm saying by deductive reasoning if someone is sent a section 7(9) notice, that means that they are implicated and vice versa. If they are implicated, then they deserve a section 7(9) notice, correct?

Mr Ndou: Correct.

Adv Mpofu: Alright. The point is this, let's park that, I'll come back to this just now. I accept that you say you did not go back in history as such. But to your knowledge, has there ever been a stage where there was any adverse findings and/or implication of the Premier and/or the MEC – beyond what one might call oversight? In other words, there was an allegation, for example, of their failure to take disciplinary steps against the HOD. Would you agree that that was really the full extent of their being implicated in the reports that you've seen?

Mr Ndou: Yes, in the reports that I’ve seen, yes, that's correct.

Adv Mpofu: Up to whatever was the latest report at the time of your involvement, correct?

Mr Ndou: Correct.

Adv Mpofu: Right, because there's a confusion that is created in this Committee, and I suspect deliberately, by some of the witnesses, that there was anything beyond that – beyond what you and I have agreed – that was alleged to be an adverse finding or an implication of the Premier and MEC. So thanks. I'm glad you've clarified that.

Mr Ndou: Can I say something, Adv Mpofu?

Adv Mpofu: Yes.

Mr Ndou: Not in any report that I personally saw. They might be speaking to other reports, other iterations of reports, but not in reports that I personally saw.

Adv Mpofu: That you have ever seen. No, I agree. Well, that's true for you and for me, and any other human being – that this other stuff is imaginary. That's what I was trying to explain. So what I'm then getting at, or by the way, now that you've just correctly assisted us to say, “in no report that you've ever seen.” There's another phantom report that was created. Have you ever seen any report by Mr Samuel in which he was implicating the politicians in anything other than what you and I have discussed?

Mr Ndou: I do not recall seeing that report, Chairperson.

Adv Mpofu: Yes, well, that's probably because it doesn't exist, but he calls it a revised report which he says he singlehandedly drafted and sent to you and the Public Protector. But I mean, there's no such thing. The Public Protector says it doesn't exist. You have never seen such a thing?

Mr Ndou: I don't recall seeing the report.

Adv Mpofu: Yes, and you've already said that there's no report that you've ever seen which implicated the politicians in anything higher than oversight. Correct?

Mr Ndou: Correct. Yes.

Adv Mpofu: Yeah. Alright, thanks, that clears that up. Now the reason Mr Samuel was then creating this phantom report called the revised report, he says he has mislaid it. He doesn't know what happened to it, and he's also lost all the emails that relate to it. In other words, that would be the emails to you and the Public Protector rendering such a report, and he says he did it defiantly knowing that the Public Protector did not want such a thing. You have no recollection of that, correct?

Mr Ndou: I do not recall that report, Chairperson.

Adv Mpofu: Now I'm saying that the reason why such a phantom report has to be created in the first place is because it’s to perpetuate this narrative that there was something which implicated the politicians in something higher than an oversight, which the Public Protector “removed”. You understand that you can’t remove something that is not there. You must first create it, so that would have removed it. That's what we will argue at the end of this matter.

Mr Ndou: Can I say something, Adv Mpofu, through you Chair?

Adv Mpofu: Of course.

Mr Ndou: Chairperson, I can only speak to reports that I recall. I cannot speak to emails that went missing in Mr Samuel’s laptop. I'm not privy to that, unfortunately.

Adv Mpofu: Yes.

Mr Ndou: I can only speak to what I recollect, given the timeframe also.

Adv Mpofu: No, yes, please be patient with us, Mr Ndou, and understand why I'm asking you the question. Just to assist the Committee to separate the wheat from the chaff, and unfortunately, I have to ask you these questions. I understand where you're coming from. In other words, what you're saying is that you are not the one who has alleged the existence of such a report. In fairness to you, you haven't said such a thing in your statement, correct?

Mr Ndou: Yes, and I'm also saying I don't recall any such report.

Adv Mpofu: Yes, no, that we have established, but I thought you are now protesting that you cannot answer about reports that you don't know. So I'm trying to explain to you why I'm asking you the question. I'm asking you the question because Mr Samuel put you in the centre of what I call this phantom report. Okay. Therefore, I have no choice but to ask you the question. I’m just giving you the background so that you understand and you can bear with me. Mr Samuel alleges that the people to whom he gave this so-called report, which we say is non-existent, are you and the Public Protector. Do you understand that?

Mr Ndou: I understand what you are saying, yes.

Adv Mpofu: Now, the Public Protector will say that that is just fiction. There was no such report. And we've already put that to Mr Samuel. Do you understand that?

Mr Ndou: I understand what you are saying, yes.

Adv Mpofu: Yeah, but now if I don't ask you about it, then the Committee will say, "Well, maybe the report exists and the Public Protector is falsely denying its existence. The only other person who would have seen this is Mr Ndou, and you didn't ask Mr Ndou whether he saw it, therefore we can imply that he must have seen it." Do you understand where I'm coming from?

Mr Ndou: I understand your question, yes.

Adv Mpofu: Okay. Thank you. So that's why I'm asking you the question. Now I'm saying that maybe the part that is unfair is the fact that you have already said to the Committee that you have never seen any report in your life that implicates the politicians beyond the issue of oversight. You accept that. Correct?

Mr Ndou: Yes, I said I don't recall seeing any such report.

Adv Mpofu: Yes, but if you had, I mean, it stands to reason this would be something that sticks out like a sore thumb. Firstly, it would be some report coming from an individual, in some kamikaze-type of action which, like a shot from the blue, you wouldn't forget such a thing. I mean, if there were teams, there were investigators and so on, and then suddenly there would have been some hard-hitting report from somewhere that has completely new parameters and goes even beyond the complaints of the complainants – you wouldn't forget such a momentous occasion, would you?

Mr Ndou: We are entering the realm of speculation, Adv Mpofu. I think I've answered to say I don't recall any such report.

Adv Mpofu: No, Mr Ndou, please. You know, your job is just to answer the question. If you don't know the answer, say you don't know the answer. Don't give us editorials. I'm saying to you if such an unusual occurrence had occurred in the midst of this, and you had received, and I don't want to repeat myself, a bolt-from-the-blue kind of report from an individual, you would recall such a thing. Correct? Because you either would have taken it, throw it away, or do something about it. You wouldn’t forget such a big occasion, correct?

Mr Ndou: I would recall, yes.

Adv Mpofu: Thank you very much. Okay. Now for that, we will argue again at the end that the Public Protector’s version is that the so-called revised report was a product of Mr Samuel’s imagination. It is the only reasonable conclusion, anyway, back to what we were discussing. I'm saying that the Public Protector’s version will be that the Premier, let's start with the Premier, indeed gave a detailed explanation in respect of the oversight implication which was directed to him. My understanding is that, at some stage, you saw the response. You must have because you were asked to write a follow up letter, correct? Oh, gosh, I think we've lost Mr Ndou again, Chairperson.

[The Committee took an early adjournment for tea to enable the witness to rejoin the virtual platform]

The Chairperson noted that the Committee did not seem to succeed in getting back Mr Ndou. Where he was, he had gotten off the virtual platform by something beyond his control. The Committee was told that where he was, there was a storm. It would take time to get him reconnected. It did seem that today they would be unable to gather the momentum they had in the morning with the evidence leader. They had no choice but to pause for the day and have Mr Ndou join them on Monday or any day the following week. He would depend on Adv Bawa and her team to work that out. As Members know, they would be off the following day and had a hectic week next week. The following week was already full, so he did want to warn Members. The point now was that the Committee could not proceed further with the cross examination. This was being put on the table. He thought they would have to adjourn but before that, he asked if Adv Bawa had anything she wanted to say.

Adv Bawa said that they had Ms Basani Baloyi scheduled for Monday, 22 August, and due to work commitments, they would not like to create any further difficulties for her. So they would leave her scheduled for Monday. They would then endeavour to get Mr Ndou for Tuesday. They would speak to the Committee Secretary, realign the programme, and let the Committee know.

The Chairperson asked if Adv Mpofu had any comments.

Adv Mpofu thought that it could not be avoided. He just wanted to say that the evidence leaders must not allow the witness to go to the Eastern Cape. He thought there were many interventions there that could happen.

The Chairperson thanked everybody and sincerely apologised to everybody inconvenienced by the Committee’s "on and off" today. It was just something beyond the Committee’s control and they would have loved to have completed everything that was meant to be done today.

The meeting was adjourned.