PP Inquiry day 23: Reginald Ndou

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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 Section 194 Committee engaged for a second day with witness, Lufuno Reginald Ndou, former Executive Manager: Provincial Investigation and Integration, following the network connectivity disruptions he had experienced on 18 August 2021. Evidence had been led at his previous appearance and the Public Protector legal team continued cross-examination.

The advocate for the Public Protector asked if the Public Protector had merely wished that no adverse findings in the Vrede Dairy Report be made or whether she had given an instruction that no adverse findings were to be made against politicians in the Free State. The witness opined that it was the former, contrary to the views of other witnesses. The advocate drew attention to the fact that the witness was the one who had received the phone call from the Public Protector raising her views about the outcome. That was the same phone call in which the Public Protector expressed her view that the lead investigator on the case was doing the bidding of the DA and would have to be removed from the case. Cross-examination also suggested that it was the lead investigator who was opposed to using the leaked Gupta emails and not the Public Protector. The advocate then presented the witness with an email that he, as the then head of the Vrede Dairy Report, had not previously seen. It was addressed to the CEO and various investigators instructing them to follow up on the Gupta Leaks, inter alia, in respect of monies given to Estina by the Free State government, KPMG and the Gupta wedding. It also noted that R4 million was diverted to Dubai. The email referred to evidence supplied by the Organisation Undoing Tax Abuse (Outa) that had never been made available to the witness as head of the investigation.

The advocate drew attention to the Free State Premier reply to a section 7(9) notice in which he pointed out errors and flaws in the contentions of the Vrede Dairy investigation team. In the discussion on section 7(9) notices given to those implicated, the advocate compared the section 7(9) notice with the audi letters used when PPSA officials were asked to explain their actions, such as missing a deadline. Later in the hearing, the evidence leader established that staff members were intimidated by the audi letters because such a letter was not seen as an opportunity to explain oneself but as a notification that one was implicated in wrongdoing. The witness noted that audi letters created an atmosphere of unhappiness and fear in the Office of the Public Protector.

During cross-examination, the advocate raised the fact that the witness had taken two days’ personal leave, signed for by the CEO, but he had not returned to the office when instructed via sms by the Public Protector to return and had, therefore, faced disciplinary action. He had also been charged with another offence while serving his resignation notice period, despite being exonerated of that offence by a top legal firm.

Questions by Committee members included the lack of receipts in the Vrede Dairy matter, whether the witness felt threatened or intimidated by the Public Protector, the engagement by State Security Agency officials in the Office of the Public Protector and the validity of reasons for the urgency with which the allegedly incomplete Vrede Dairy report had to be issued in February 2017. Other questions were about the why the Public Protector had had a private and unrecorded meeting with the Free State Premier at the time of the Vrede Dairy Report and about the telephone call from the Public Protector to Mr Ndou that the report should not have any adverse findings.

Meeting report

Opening Remarks
The Chairperson noted that the meeting was a continuation of the testimony of Mr Lufuno Reginald Ndou, previously an executive at the Public Protector South Africa (PPSA), following the interruption of his testimony by connectivity challenges as a result of a storm the previous week. He requested the Public Protector’s legal team not to discuss matters raised at the Committee meeting the previous week until later in the day.

Witness Mr Lufuno Reginald Ndou
Ms F Ebrahim (Legal Advisor): Mr Ndou, the oath was administered on Friday and you remain under oath. Please confirm that you understand that.

Mr Ndou: I confirm that I understand.

Adv Dali Mpofu began by recapping the engagement of Friday 19 August 2022.

Chairperson: I now hand over to Adv Mpofu for your continued cross examination.

Adv Mpofu: Mr Ndou, as the Chairperson: correctly pointed out, we were disrupted by technology and nature. We will continue where we left off. But before we do that, I just want quickly to remind you of some of the areas that were covered so that we do not fall into the trap of going back. One of the things we established was that there was no previous report, which implicated the so-called politicians directly.

In other words, one of the theories around this particular matter before the Committee is that the Public Protector “removed” the implicated politicians. We covered that ground. And just to be clear, you and I agreed that in the Vrede Farm Report, nowhere had these politicians been directly implicated. But to qualify that, of course, there were findings to the effect that they should take disciplinary action and so on, against the administration, correct?

Mr Ndou: Yes. In all the reports I have seen, yes.

Adv Mpofu: And that, to the extent that Mr Samuel suggested that there was a so-called revised report where he single-handedly implicated the politicians directly - you have no knowledge of such a report? You have never seen it?

Mr Ndou: Not to my knowledge.

Adv Mpofu: And I indicated to you that your evidence coincides with evidence of the Public Protector that she had never seen such a report, despite the fact that Mr Samuel’s evidence was that she had given it to you. Do you remember that we covered that discussion?

Mr Ndou: Yes.

Adv Mpofu: Now to round off that issue, because it is quite important. You and I had also spoken about the role of section 7(9) notices. And this was just my terminology - it is not some official terminology. I had compared the section 7(9) notices to the audi letters because they serve the same purpose, and you confirmed that a section 7(9) notice can be viewed in the same light as an audi letter as it gives you an opportunity to explain whatever it is at that stage seems like is implicating you, correct? We went to the actual section, section 7(9), to indicate to you that it is directed only at implicated persons.

Mr Ndou: The section 7(9), yes.

Adv Mpofu: Just as an aside, in a different report, the CIEX report, an Adv Hoffman who had a complaint and had raised the issue why he was not given the provisional report, it was explained to him that that section is not for complainants but for implicated persons. You can confirm that?

Mr Ndou: That is my understanding of the section. Yes.

Adv Mpofu: Now, I am not sure if I asked you or did not ask you - and it is not relevant for this report, but just to assist the Committee to understand the work of the Public Protector - if you are aware of the opinion by Mr Nemasisi to the effect that it was not necessary to include the remedial action in the section 7(9) notice. Were you aware of that opinion? Whether you agree with it or not, is another issue, but are you aware of its existence?

Mr Ndou: I was not aware, no.

Adv Mpofu: That means I did not ask you that and we will just leave that out. Now, I want us to come back to this issue of the politicians. You would agree that the Public Protector was quite concerned that the outstanding information, which the premier had not supplied, should be obtained and she went to the extent of asking you to basically write a follow-up letter to the Premier (of the Free State) to ask for the outstanding material and so on?

Mr Ndou: Yes.

Adv Mpofu: And in so doing, she did not prescribe to you. She simply said, “Please do the follow up letter”. Obviously, you first have to read the response from the Premier to the section 7(9) notice, and then request those documents which were outstanding. And she did not say to ask for this or ask for that. She simply said, “Draft a letter for me”. And the evidence was that she indeed signed the letter once you had finished it, and the matter, at that stage, had been handled by the province, and the lead investigator was Adv Cilliers? Correct?

Mr Ndou: Correct. Adv Cilliers.

Adv Mpofu: And then insofar as the remedial action plan was concerned, the main persons that it was directed to were the Premier, along the lines that you and I had discussed, as well as the Head of Department. Correct?

Mr Ndou: Correct, yes.

Adv Mpofu: Okay, the issue of the MEC was a moving target, in the sense that at the time of the incident for a couple of months, the MEC was MEC Khobane. Correct?

Mr Ndou: I do not remember; I do not have a copy.

Adv Mpofu: Alright, you might have forgotten the name, but surely when you asked for the section 7(9) notices you received one from the Premier and one from the MEC. But did you concentrate only on the MEC or on the Premier?

Mr Ndou: It was only the one from the Premier.

Adv Mpofu: Okay. Because the instruction to you from the Public Protector was to respond to the Premier. Then you may or may not know that the during the time of the report, the MEC had already been changed. Were you aware of that?

Mr Ndou: No.

Adv Mpofu: Okay, so there are these allegations about politicians and the Public Protector never said to you that you must exclude anything to do with politicians, correct?

Mr Ndou: There was no such instruction to me.

Adv Mpofu: Coming to paragraph 12 of your statement, which is a phone call from the Public Protector, and just to be clear, the Public Protector does not recall making such a call to you, but I am going to ask you questions around some of the things that you stated in your statement. I am asking you as I say, from your point of view, because we are saying this is what was said or this is what was not said at this stage. We will deal with that when the Public Prosecutor gives evidence, but I want to test some of your statements at this stage. You would agree that at least as far as you are concerned, you had just seen the report, basically for the first time, at that stage?

Mr Ndou: That is correct.

Adv Mpofu: Yes. And you had had a meeting with, inter alia the Public Protector and Adv Cilliers. We can call this the handover of the report from the province to your unit, to your task team.

Mr Ndou: To my unit, to my branch.

Adv Mpofu: At this stage, had you already formed the task team?

Mr Ndou: Not yet.

Adv Mpofu: Okay. Now, I want to test the following: let us start with the first statement where you are seeing the Public Protector as expressing some concerns about Adv Cilliers’ relationship, or doing the bidding for the DA and so on and that she could pick up that she was working for the DA. That is what you are saying. I am assuming this is your own summary and not the exact words used by the Public Protector?

Mr Ndou: It is my recollection of what the Public Protector said.

Adv Mpofu: Even so, it may not have transpired exactly like this. But more or less the gist. You knew that in this particular matter, the complainant was a DA MPL.

Mr Ndou: I did.

Adv Mpofu: Yes. And some of the role players included, what one might call the farming community in that area in Vrede, and the provincial people obviously had more interface with the role-players.

Mr Ndou: That would be my assumption, yes.

Adv Mpofu: Now let us assume, for a minute, that the Public Protector had some genuine concerns about the relationship or proximity between the investigator and the DA, given the fact that the DA was the complainant, that would have been a legitimate concern, obviously. Correct?

Mr Ndou: If she had reasons to.

Adv Mpofu: But let us say, I am exaggerating, let us assume she saw a DA membership card. Let us say that - I am just giving you an example. It does not have to be the DA, it could be the SPCA or whatever. But a relationship with the complainant would be problematic, correct?

Mr Ndou: Yes, if she had evidence.

Adv Mpofu: Thank you. Because as you correctly say, it is the duty of the Public Protector's Office to be impartial, and not to be tainted in any investigation. Correct?

Mr Ndou: Correct.

Adv Mpofu: And the rules of natural justice say that if there is a relationship with any of the parties, you should recuse yourself. That is just basic. If you are a member of the Presbyterian Church, like some witness claimed yesterday, and there was an investigation about that, you have a normal duty is to declare it or to recuse yourself. Correct?

Mr Ndou: In such circumstances, yes.

Adv Mpofu: So that that would be a matter of concern and the Public Protector, according to what you are saying - and again, I am not saying you are quoting this - but whatever she conveyed to you, you gained that impression from the interaction that you had with Adv Cilliers? Correct?

Mr Ndou: Correct.

Adv Mpofu: And, to your knowledge, she never took the matter any further. The advocate was not fired from the brief. Correct?

Mr Ndou: From that moment, the file was then transferred to us.

Adv Mpofu: Oh, yes. In any event, at that point, the whole point of the exercise was to transfer the file to the national office. Correct?

Mr Ndou: That was my understanding. Yes.

Adv Mpofu: Okay, fair enough. So even if the content remained, from that point, it had become irrelevant, correct?

Mr Ndou: Correct.

Adv Mpofu: Now, to the next one. You also say that the PP said she would personally be happy if there were no adverse findings in this report. And we've already clarified that. That is not this story that is bandied about adverse reports about politicians; it was a general statement that did not target politicians or soccer players or any other category of people. Correct?

Mr Ndou: My sense would be, it would also include the politicians because adverse findings can be against anyone.

Adv Mpofu: It could, involve anybody; it could be the farmers; it could be any role-players, but was not targeted at any particular group of people. Correct?

Mr Ndou: The statement, as made to me, yes.

Adv Mpofu: It was an open ended one statement. You say that at that point, it was not an instruction of any sort?

Mr Ndou: I understood it as a wish, and not a specific instruction.

Adv Mpofu: And you specifically emphasised the word “personally”. So, according to your memory, the Public Protector was expressing a personal view, correct?

Mr Ndou: Correct.

Adv Mpofu: To the extent that she might have expressed a personal view, you did not understand that to have any impact on the work that you were supposed to do. Correct?

Mr Ndou: For me, it had implications for the investigation.

Adv Mpofu: Yes, but as you correctly pointed out, you never viewed it as an instruction to do something or not to do something.

Mr Ndou: Please come again.

Adv Mpofu: I am sorry, as you correctly pointed out, before, you never saw it as an instruction to act in a particular way

Mr Ndou: No, I just looked at it as a personal view.

Adv Mpofu: If we fast forward, in actual fact, what happened is that there were more than 10 adverse findings made, of different types, correct?

Mr Ndou: In the report.

Adv Mpofu: Yes, in the report, and the Public Protector did not say, "Mr Ndou, remember, I once expressed a personal view about this, so therefore, everyone must just be absolved.”

Mr Ndou: I was not there when the report was finalised, so she would not have had the opportunity to express that opinion.

Adv Mpofu: Fair enough. But with the benefit of hindsight, having seen the report afterwards, those adverse findings were still there, were they not?

Mr Ndou: Yes.

Adv Mpofu: If your recollection of the conversation is correct to the extent that you may have expressed any personal views, they did not affect the final product, insofar as they were actually adverse findings.

Mr Ndou: Yes. There were other findings, but as to the nature, I cannot speak to that.

Adv Mpofu: We will come to that just now. Can you tell me, just out of curiosity, you say then there was this discussion with Adv Cilliers, which I am assuming was informal, not a formal meeting of some sort.

Mr Ndou: I called her.

Adv Mpofu: And you informed Adv Cilliers. What did you say to her?

Mr Ndou: I informed her about the discussion since Adv Cilliers was the lead investigator in the matter. I informed her of the conversation that the Public Protector had with me to say she was of the view that she, Adv Cilliers, was doing the bidding of the DA, and also that she had said to me that she personally believed there were no adverse findings in the report.

Adv Mpofu: And why did you do that?

Mr Ndou: Because Adv Cilliers was intimately involved in the investigation.

Adv Mpofu: Okay, but let us just go back a little bit to this question about the views of the Public Protector. At that stage, we are aware that she had had the files for some time. And she had some views on the file. Let me put it this way. When the meeting was held in the office, it was your first time to interact with the file, but she had had the file for a number of months. Correct?

Mr Ndou: I do not know if we're speaking about the file or a draft of the report. My understanding was that the file itself either in September or October, when it was pulled over to head office, she had not had the file itself.

Adv Mpofu: We need to distinguish between the file and the report. So, shortly after her employment, she obviously had engaged with the case. There was an interest in this particular investigation. It was in the public domain, so at the very least, she should have seen the preliminary investigation from around October 2016. Correct?

Mr Ndou: I would assume so.

Adv Mpofu: Yes. And you were having this conversation almost a year later.

Mr Ndou: Yes, plus minus.

Adv Mpofu: So unlike you who was interacting with this matter for the first time, she would have had some interactions with this matter in the form of the preliminary report, and also, possibly in two or three or four Think Tank meetings that would have happened since her appointment?

Mr Ndou: Correct. I can't speak to the number of Think Tank meetings, but yes, the matter would have served before any Think Tank meetings.

Adv Mpofu: Any Think Tank meetings that would have taken place in that period? And Think Tank meetings were quarterly meetings, correct?

Mr Ndou: Yes.

Adv Mpofu: The Public Protector had been, at that stage, for let us say three or four quarters. Then you give evolution, for lack of a better word, of the report, the various drafts that were produced, subsequent to your involvement, correct?

Mr Ndou: That is correct.

Adv Mpofu: Then the other issue that I want to converse with you, was the Gupta Leaks. You know, it is one of those things that is easy now, because we're now in 2022. You know, we find it difficult to think of it situationally, at the time. So it is important to put it in perspective. We know that the Gupta Leaks came out sometime in 2017. Correct? At the time that you were having these discussions, this was again, another national buzz - the revelation of this Gupta Leaks. I do not know if you are aware that, in actual fact, there is evidence that has been led here, and it may or may not be before your time, but there is evidence that actually it was Adv Cilliers who was against the use of the Gupta Leaks. Are aware of this? Are you aware now or did evidence leaders tell you about it?

Mr Ndou: I am aware of it because she spoke to it at a Think Tank meeting to indicate that the complainant was only interested in matters of maladministration.

Adv Mpofu: So I think I think we're talking about the same meeting. And in that same meeting, the Public Protector actually expressed the opposite view that the Gupta Leaks should be used, correct?

Mr Ndou: She said there was no harm in looking at them.

Adv Mpofu: There was also a view at that time - remember the Gupta Leaks covered a wide range of allegations of corruption, dozens and dozens of incidents with Telkom, Eskom, etc. Correct?

Mr Ndou: I can't really recall, but I know they specifically also dealt with the Vrede Dairy Report. I can't remember what.

Adv Mpofu: No, that is fine. I am sure the Committee will have other evidence of or be aware of the wide-ranging nature of the Gupta Leaks that was prevalent in the country at that time. In fact, the Public Protector had proposed, for lack of a better word, the establishment of a commission of inquiry specifically to look into the Gupta corruption, correct?

Mr Ndou: Correct.

Adv Mpofu: That commission was actually a product of the Public Protector’s Office, in the sense that it was initiated by the Public Protector, correct?

Mr Ndou: Correct.

Adv Mpofu: And the entire topic of so-called Gupta corruption was the core function of that proposed commission, correct.

Mr Ndou: My understanding was that it dealt with state capture in general, although the Guptas would have been part of it.

Adv Mpofu: Okay. Of course, as we all know, the Zondo Commission, which is what it became, dealt with wide ranging corruption and was not confined to the Gupta corruption. It dealt with SASSA and all sorts of other things. Sir, as someone who worked at the Public Protector, you may or may not know that the actual mandate of the commission that had been suggested by Adv Madonsela was called off because it was limited to the Gupta corruption. Correct?

Mr Ndou: I cannot say.

Adv Mpofu: I can because I was involved in the litigation. But an illustration of that, is the fact that what really drove the proposal of Adv Madonsela to suggest this unique solution of outsourcing that particular investigation to a commission of inquiry was the question of costs, correct?

Mr Ndou: I was not really exposed to Adv Madonsela’s thinking, unfortunately.

Adv Mpofu: Not thinking; I am talking about a matter in the public domain. It was litigated about and there was the question of whether the President should appoint the commission. These are matters that were in the public domain, but I am asking you, not as a member of the public, but as an insider in the Public Protector's Office. I am supporting your view that it then became completely something else because at that point Adv Madonsela estimated that the commission or investigation would cost R131 million, which the Public Protector did not have and the Public Prosecutor did not have the capacity to do the investigation, according to her, at least.

Mr Ndou: I think I have answered the question to the best of my knowledge. Without having a look at the documents, I am really unable to …

Adv Mpofu: Okay, so even as a senior person within the Public Protector's Office, you had no knowledge, and I am assuming you did not work directly on the State of Capture report. But are you saying that with all the Think Tanks and all the discussions and so on, you did not know that there was a view of the Public Protector as to why this work should be outsourced to a commission of inquiry.

Mr Ndou: I can't recall the reason.

Adv Mpofu: Was it was not discussed at your Think Tank or Dashboard or whatever?

Mr Ndou: Not that I can recall.

Adv Mpofu: That is fine. The point is that there was also a sense that those people who supported the view of Adv Cilliers and others, that the Gupta Leaks should not be considered as that, naturally, was something that was going to be investigated in the Public Protector-inspired commission of inquiry as part of the so-called Gupta corruption. Were you aware of that?

Mr Ndou: Can you repeat the question?

Adv Mpofu: I am saying it looked like, at some point, there were two camps or two views on the use of the Gupta Leaks. Let us say the Public Protector's view is that there is no harm in the Gupta Leaks being used, correct?

Mr Ndou: Yes.

Adv Mpofu: And Adv Cilliers and maybe other people have the view that there is no place for the Gupta Leaks in this investigation. Correct?

Mr Ndou: Correct.

Adv Mpofu: Now, I am not saying people were fighting. I am simply saying, one of the motivations was the fact that that issue of corruption in any event was part of a Public Protector inspired commission of inquiry, so it would be better investigated there.

Mr Ndou: I was not aware of that.

Adv Mpofu: Okay, that is fair enough. Then we will just run evidence about that. You would understand, I am sure, just at the logical level, that if there were another commission of inquiry, let us assume the state of capture inquiry was continuing internally within the Public Protector's Office. Obviously, it would make sense that the same thing should not be investigated in parallel investigations as a matter of logic, correct?

Mr Ndou: Duplication of investigation, and a waste of resources.

Adv Mpofu: Thank you and again, reversing the clock a bit, the reality of the matter is that by the time these Gupta Leaks came to the surface, this particular investigation had reached an advanced stage, correct?

Mr Ndou: Yes, my understanding was that it was virtually complete since the sections 7(9) had already been issued.

Adv Mpofu: Yes, and to start basically on a new issue would have obviously delayed the production of the report, correct?

Mr Ndou: I wouldn't agree with that. Because for me, the specific issues that I wanted to look at, related to the use of the monies by Estina, which wasn't really a new issue; it was about the funds that were paid to Estina and so it wasn't a really a new issue. It was just about the usage of the resources.

Adv Mpofu: Okay, we are talking at cross purposes. I am not saying that the issues that were raised were not relevant; do not get me wrong. We have agreed that it would be undesirable to have parallel investigations, but I am also saying you yourself at that stage did not know, for example, the bulk or the amount of emails contained in the Gupta Leaks that involved specifically the Vrede matter. It could have been two emails; it could have been 2000 emails. You did not know.

Mr Ndou: Yes, I did not know.

Adv Mpofu: Assuming that it was a lot of material, then going through all that when, as you correctly point out, the report was virtually finished, would have cost more time, obviously, to open a new avenue, any new avenue.

Mr Ndou: Correct.

Adv Mpofu: I am not saying a new issue, but an issue that was there, and let us say you needed to go through 2000 emails. Again, I am just exaggerating to make the point.

Mr Ndou: Just getting access to bank statements of Estina would at least have given the assurance that I was looking for.

Adv Mpofu: Yes, that is true. And that is actually contained in the report somewhere in Mr Nemesisi’s email, but we will come to that. You did not know if the bank statements you are talking about were part of the Gupta Leaks as you had never seen them yourself?

Mr Ndou: No, I did not.

Adv Mpofu: So you did not know what was contained in them and the simple point I am trying to ask you to express a view on, if you are able to, is that the mere fact that the report was almost finished, would have been one of the disincentives to open a new can of worms, so to speak, a new avenue, which might have involved thousands and thousands of emails, which would also have led to further investigation. That exercise, obviously, was going to cost time. I do not know whether it would have been two months or three months or two years or whatever, but it would take time. Correct?

Mr Ndou: It is possible.

Adv Mpofu: And also, no, I think we covered this last week, there was a tremendous amount of pressure about the release of the report, particularly from the DA, correct?

Mr Ndou: Yes. I think there was also the issue that the very party that was putting pressure on us to release the report, had actually made an undertaking to provide more information. So, I would have been surprised if they went to court to force the release of the report when they had given an undertaking to give us more information and that was outstanding. But that that was my thinking.

Adv Mpofu: Actually, it was a strange set of circumstances because, in the public domain, they were threatening to take you to court for not releasing the report, and yet in paragraph seven of your memorandum, the list showed that they owed you some information, correct?

Mr Ndou: That is information that they actually volunteered to provide to us.

Adv Mpofu: Yes. And in fact, as it happened, you released the report without ever getting that information from the DA. Correct?

Mr Ndou: That is my recollection, yes.

Adv Mpofu: Okay, we will come to that. For now the point I am simply making is that there was an extraordinary amount of pressure on the Public Protector to release the report. On the one hand, putting aside this contradiction, it was understandable because this complaint had initially been laid in 2013 already and we were in 2017, four years later. In fact, I think you have or someone else has testified to this, that this team was really under pressure to deliver on this report because the project had made undertakings to the DA, to Mr Maimane and the state legislature, that it will be released. You may or may not be aware of this. Mr Samuel confirmed it. Were you aware of that?

Mr Ndou: I can't say I recall that.

Adv Mpofu: Yes. There is already evidence on that point. So even the Public Protector being under that amount of pressure, still said that there was no harm in looking at the Gupta Leaks. Correct?

Mr Ndou: I wouldn't say so. Because that view was expressed, if I recollect correctly, at a Think Tank that took place around August and in September, I did raise the issue with Mr Nemasisi and I did not receive a response and I recollect also raising it at a Think Tank meeting and she said, “We are not looking at those.”

Adv Mpofu: So the first time you raised it, you are saying there was no response positive or negative.

Mr Ndou: Not that I recall.

Adv Mpofu: Not that you recall. And when you raise it again at a later stage, it would seem that the views of Adv Cilliers had prevailed. In other words, that was the position that had been taken. Correct?

Mr Ndou: With hindsight, yes.

Adv Mpofu: Alright. Then if you can move to Bundle H, item 19. This is an email from the Public Protector, Adv Mkhwebane, to the CEO of PPSA, Mr Samuel and Adv Erika Cilliers, cc Ms L Molelekoa and Ponatshego Mogaladi. I know this is before your involvement but I want to bring this to the attention of the Committee. So the Public Protector says the CEO must follow up with the Free State Provincial Representative to prepare letters to the Premier, MEC Zwane for her signature. She says, regarding the Gupta Leaks, this in addition to the section 7(9) letters issued. She then says, “I will give you the hard documents submitted by Outa (Organisation Undoing Tax Abuse). Estina and KPMG and the wedding expenses.” Then she says, “The Free State Government gave Estina, an unknown company, free land to empower locals and also promised R114 million in funding without a tender and ended up handing over R210 million. Guptas denied involvement - we know they lied. What happened to the money?” She says, "R4 million was diverted to Dubai. Only R1.7 million was used to buy milking equipment. The rest was laundered through the various Gupta-linked companies before coming back to South Africa. R30 million was sent back to Linkway to pay for the Gupta wedding. Examples of expenses include R2.3 million for scarves and R250 000 for fireworks. Meanwhile, Estina’s sick and malnourished cows were dying and discarded in a ditch. Linkway claimed the wedding expenses as a business expense, saving R8 million on tax.” This was a catalogue of some of the allegations extracted from the Gupta Leaks. Okay. But I am simply putting this to you. I know that it was before your time, but you would agree that this kind of inquiry cannot come from someone whose mission in life was to sweep the Gupta Leaks under the carpet.

Mr Ndou: Not having seen that email.

Adv Mpofu: It is indeed so that Dr Jankielsohn had issues, what I might call for lack of a better word, staggered complaints: there was one in 2013, another in 2014 and another in 2016. Correct?

Mr Ndou: I recall two, not three, but I speak under correction.

Adv Mpofu: I can understand why. But in any event, the complaints that were sent were rolled into one. They were considered together, correct?

Mr Ndou: Correct.

Adv Mpofu: Because there were overlaps between them in any event, correct?

Mr Ndou: Yes, correct.

Adv Mpofu: But more importantly, and this is the point really, I want to make is that, at that stage – and if you know about the subsequent investigation, I want you to disabuse your mind of it for now – in neither of those complaints by Dr Jankielsohn were there any allegations about the direct involvement of politicians; it was about maladministration by the Head of Department and people like that. Correct?

Mr Ndou: In my recollection, yes, it is true.

Adv Mpofu: Just for the sake of the information of the Committee, it is true that subsequently, in 2018, sometime I think in April, Parliament then asked for a specific focus on politicians, and particularly the issue of beneficiaries, but that is not what I am talking about. Up to the point of the release of the of the report, it was based on the complaints of Dr Jankielsohn and, apart from those being merged, they have never been narrowed, correct?

Mr Ndou: Correct.

Adv Mpofu: The next point is the inflation of prices. Remember that topic? It goes back to your point about banking statements. You have said, and I can understand why, you would have loved to see the banking statements of Estina because that would have assisted you, for example, to see exactly where the money was spent? Correct?

Mr Ndou: Yes. Correct.

Adv Mpofu: And that would have assisted you in this topic of the inflation of prices. So, let us say, for example, the bank statements showed that they bought water for R1 million when you think it should have been R100 000, then you would know that there was more or less some inflation of prices. Correct?

Mr Ndou: Yes.

Adv Mpofu: So that was one of the issues that would have assisted you. And by the way, I think Mr Nemasisi also raised this issue when he was making his queries about whether it was not possible to dig down into the actual money spent. But as it happened, you were not able to get to the concrete numbers to say these were the actual rands and cents. That is why you are saying you would have loved to have access to that information. Correct?

Mr Ndou: Correct. Some of the purchases, yes.

Adv Mpofu: Yes. And, again, I know that, for the reasons that we discussed last week, you were not involved in the literal final stages of the preparation of the report.

Mr Ndou: Correct.

Adv Mpofu: It is clear that at some point, a decision was taken that, despite these missing links, including the information owed by Mr Maimane, the report had to be issued. Correct?

Mr Ndou: Based on the fact that it was issued on the 8th, I would say yes.

Adv Mpofu: And in fact, your personal view was that the report could have been issued even earlier, I think even towards the end of 2017. Correct?

Mr Ndou: Based on the issues that were approved for the investigation, yes.

Adv Mpofu: Despite the fact that there were one or two outstanding issues, it could have been issued at that stage. In your view, it could have been issued November 2017. Correct?

Mr Ndou: That is correct. Yes.

Adv Mpofu: So if your wish had been followed through, there would have been nothing untoward in issuing the report at that stage, and simply maybe indicating that you had waited for Mr Maimane. I am using just that as an example. But you could have said, “We have sufficient findings, negative findings, that we have made adverse findings that we should take action. And to the extent that the information given by some of the people involved in the investigation to the Public Protector, that there were financial constraints, you are not part of that discussion.

Mr Ndou: I was not privy to that discussion. Yes.

Adv Mpofu: And, in fact, I like how you articulate it. You say that there were financial constraints, as we all know, and that those financial constraints obviously had an impact, not just on this investigation, but on all the work of the Office. Correct?

Mr Ndou: Correct.

Adv Mpofu: I think your view, and you do not put it higher than that, is that those financial constraints would have affected this report, and other reports, correct.

Mr Ndou: Just to put the rider. My testimony is that it would not have put any undue pressure on this report, more than any, because the Public Protector already had financial constraints.

Adv Mpofu: And that is no different from what I am saying. There were austerity measures and so on, so the issue of financial constraints was always a factor anyway. Correct, yes?

Mr Ndou: Yes, sir.

Adv Mpofu: I think that is the way you put it. You say there is no reason why this investigation is particularly subject to those constraints any more than any other PPSA investigation. In other words, you acknowledge the existence of the financial constraints, but you are saying that those constraints affected other investigations as well?

Mr Ndou: Correct. That is what I am saying.

Adv Mpofu: We can then say that some of the weaknesses or shortages or areas which you had not optimally covered, despite your view that the report was ready for release, would have included the information on the beneficiaries from Mr Maimane, which was still outstanding. Number one, correct?

Mr Ndou: Correct.

Adv Mpofu: And what you have called a more detailed information about the spend. Correct?

Mr Ndou: Correct.

Adv Mpofu: As well as what the Public Protector calls a more scientific analysis of the costs. Correct?

Mr Ndou: Correct.

Adv Mpofu: I am just going to give you an example: remember that in one iteration of the report, there would have been those pictures of the construction on the gate, right?

Mr Ndou: Yes.

Adv Mpofu: And there was, what one might call it a naked eye analysis. So somebody takes a picture and they say, the cost of this gate is a R1 million, but when you look at it, it is probably R100 000. Do not worry about the figures, just saying that kind of analysis was done. Correct?

Mr Ndou: My sense of the pictures was to compare what you see depicted in the picture as opposed to what was actually charged.

Adv Mpofu: The claimed costs - that is exactly what I mean by what I call the naked eye analysis. It is like, if you give me money and ask what I spent and I said, “I bought this pen with the R10 000 that you gave me”. From the naked eye, it looks suspicious. Correct?

Mr Ndou: From an overview, yes.

Adv Mpofu: But that is a different exercise altogether, from actually taking the pen, putting it there, analysing it, finding the price and finding that it is actually R200.03 as opposed to the claimed R1 000. That exercise was not done. Correct?

Mr Ndou: I am trying to recall, what was specifically done. My recollection is that there would have been perhaps invoices, but I speak under correction, and then we would go and take the pictures to see if there is something like that which would merit that kind of money. I agree. To the extent that you want it to be scientific, I do not know if it was scientific.

Adv Mpofu: No but that is not even the point I am making, and your recollection is correct. What I am saying is that, yes, if you take my example, there would have been an analysis of a picture of my pen, or the gate, and then there would be the invoice of what was spent. But what I am saying is that even in your recollection, the missing link was the fact that there was no analysis of the actual cost of the pen; because the full cycle would be the actual cost, the claimed invoice, the picture and then you say the two do not match which means that if there was an inflation of the price by X amount. That exercise was not done.

Mr Ndou: They would have looked at the plant on the ground and its merits in terms of what was charged, yes.

Adv Mpofu: As I said, despite the fact that I have just picked up three, what I call, shortages or things that were not done, you felt comfortable that the report was ready for release. Correct?

Mr Ndou: I would say, yes, based on the fact that it had also gone through the Think Tank and basically the findings that we had, supported with evidence that was found at the time.

Adv Mpofu: The findings that you found were serious enough for action to be taken. Correct?

Mr Ndou: Yes.

Adv Mpofu: And the view that the report was ready for release roundabout November was, was it just your own view? Or was it also shared by others? 10 November 2017.

Mr Ndou: My sense is that it would have been shared by others. Because once a matter goes through the Think Tank, and these are there changes, it means once the changes are made, then the office is basically happy that the report can go out.

Adv Mpofu: Yes, subject to the usual quality control checks. Now, okay, before we get to the other issue, I just want to re-converse an issue. You have really already covered this, but sake of emphasis and to assist the Members, let us just go back to the issue of the section 7(9). Let me start by just playing open cards as to where I am going with this question. The version of the of the Public Protector will be that, despite all this noise making about alleged exclusion of direct involvement by politicians, which we now know does not exist, the actual opposite is true that, as you correctly pointed out, she kept on digging to make sure that the information was received. Correct?

Mr Ndou: Yes.

Adv Mpofu: But more importantly, to the extent that any of the remedial action, which might have been there before and did not find its way into the final report, that was a result of how it should be, like the audi letters. Where explanations were given, she could not just carry on putting the information even when an explanation has been given. You'd agree with that approach. That is the purpose of the section 7(9) notice anyway. Correct?

Mr Ndou: And just to indicate, remedial action might actually change. For example, if you write to a Head of Department, and you say, “This is the proposed remedial action”, and he or she says that the one that you are proposing has been done and so on, then the remedial action will actually change in line with that. It can change.

Adv Mpofu: Absolutely. And to go back to our analogy, it would be ridiculous, for example, in your case, when you are given an audi letter and nothing happened after that. Correct?

Mr Ndou: Correct.

Adv Mpofu: In fact, the Public Protector should be attacked, if despite your very detailed audi letter, she just took it and threw it in the dustbin and said, “I am charging you anyway.” That would be wrong. Correct?

Mr Ndou: I am not sure if it was the Public Protector who took the decision.

Adv Mpofu: I mean it in a generic sense. Anybody to whom one directed the audi letter, if they did that, that would be unlawful. Correct?

Mr Ndou: It is correct.

Adv Mpofu: If we go to Bundle E, item six, that is the Vrede Dairy Report.

Adv Mpofu: Now that is the section 7(9) response from Premier Magashule. And that is the document you have had a look at, correct?

Mr Ndou: Yes.

Adv Mpofu: I'll take you through some of it. I do not expect you to remember as it was a long time ago. The first issue there is National Treasury report. This is another issue, which was raised yesterday. We know that the Public Protector was averse to relying on other people's investigations. You could refer to an investigation but you could not kind of transport it into your own investigation. You still had to do your own investigation? Correct.

Mr Ndou: That was the process.

Adv Mpofu: And to the extent the investigation was done by DNS, which is a law firm, was not reflected in your ultimate report. It is just part of the historical documents. I am just avoiding having to read the whole letter. I am just going to take some highlights. Let us take this part here (p1004). Remember one of the issues that the Premier is being accused of by yourselves is that he has failed to take disciplinary action. So the Premier's letter says, “At the time when the report was received and considered, we were already aware of the complaints which were lodged with the office and we were of the view that it would be premature to consider any disciplinary action before the findings and recommended remedial action following your investigations were known. Apart from this, as I will indicate in more detail below, the report contained incorrect factual and legal statements, which made any steps towards discipline procedures at that stage, not a feasible proposition. If the general limitations on page 49 of the report are also considered, it is inconceivable that it could establish a credible basis for disciplinary steps against the Head of Department, and the then Chief Financial Officer.” Do not worry about the merits of what he is saying for now, but would you agree that this was an explanation for what might have seemed to be the delay in instituting disciplinary action which you are accusing him of? Correct?

Mr Ndou: That is the explanation, correct.

Adv Mpofu: Then he goes on in the next paragraph about it. Again, just picking up another issue at random. Remember one of the things you again were accusing him of was that the Department had improperly entered into a public private partnership (PPP). And this would have been the subject of another charge or action to be taken against those who had irregularly done so. Correct?

Mr Ndou: The PPP issue initially was in the earlier iterations of the report.

Adv Mpofu: The Madonsela version and shortly thereafter; by that I mean this investigation started in 2013 and it was one of those that were unfinished by the former Public Protector. And there was a provisional report at that stage.

Mr Ndou: Yes, sir.

Adv Mpofu: And so the issue came from that earlier version, and insofar as it was raised, this was then the explanation given by the Premier. Reading from page 1005, basically the Premier concedes the point that this was not a PPP. He says, “If the provisions of contracts concluded between the Department and Estina are considered, it is abundantly clear that it does not remotely suggest that PPP was established. The agreement concluded on 5 June 2012 as recorded on page 3 of 16, the Department requires the provision of certain services from Estina as an implementing agent.” Let us just jump to the next paragraph. “In reference to the PP Report, in paragraph 2.2.21, the reference to a partnership agreement between the Department and the Estina Dairy Farm is completely wrong.” Then it says, “If the definition of a PPP in terms of National Treasury regulation 16.1 is considered, the relationship between the Department and Estina is quite clearly not a PPP as defined in the Treasury regulations". Page 1006: "It was also never found in the Accountant General's report that the PPP was irregular. In paragraph 2.4.8 on page 27 as well as paragraph 2 of the executive summary on page iii, it was clear indicated that the investigation revealed that the project was not a PPP (underlined)". The Accountant General's report, you would agree, was one of what I call the underlying reports, i.e. a report that had already been concluded before the matter was given to yourselves?

Mr Ndou: It was in 2013.

Adv Mpofu: You do not have to agree or disagree with the content but the simple point I want to make is that these were detailed and referenced responses to your section 7(9) inquiry, correct?

Mr Ndou: Correct.

Adv Mpofu: And it went on and on and on. I shall just read the headings. The next heading that he dealt with in detail was “Supply Chain Management Processes”. That will be on page 1007. That goes on for something like two pages. The next one on page 1009 is “The Approval of Funds or Funds Approved (Appropriated). And that goes on to page 1012, up to paragraph six. Then it deals with the “Inflation of Goods and Services Procured” issue, the one that you and I have just discussed. And here, is the different number of litres and all sorts of details like that. That goes on until the next page, 1013. Then it deals with number 7: Dairy Project. This is a 13-page detailed response to your section 7(9). To the extent that these points were accepted by the Public Protector, it can be clear when she gives evidence that she did not accept everything, but, to the extent that she accepted some of the explanations, then obviously, that would affect the report and the remedial action. Correct?

Mr Ndou: Yes, it would.

Adv Mpofu: Even with this detailed report, at this stage, the accusations were not directed at the Premier personally, as opposed to the oversight function. Correct?

Mr Ndou: That is my understanding, yes.

Adv Mpofu: In fact, you know that Adv Madonsela had this style of giving the reports flashy names, State of Capture and that kind of thing. In that style, this report was called by Adv Madonsela “Lack of Oversight”. That was the name of the report.

Mr Ndou: It would have been Adv Cilliers that gave it that appellation.

Adv Mpofu: But it was signed by Adv Madonsela. I do understand that there used to be some competition as to what name was given to a report, so even though the name was attributed to Adv Madonsela, it may have been suggested by somebody else, but that was the name of the report. The point I am really making is that the emphasis on this – both at the level of the complainant and at the level of the report was that it was on the oversight functions of the politicians. Correct?

Mr Ndou: Correct.

Adv Bawa: I just want to make a correction, and I am sure Adv Mpofu did not mean it, but there was no report signed by Adv Madonsela.

Adv Mpofu: I mean, the provisional report that she had prepared. You understand when I said that, I am referring to, let us call it, the hand-over report that was received by the current PP when she took office.

Mr Ndou: The report that was a draft.

Chairperson: Thank you, colleagues. We will take a break.

[Break]

Chairperson: We resume with our cross examination. I hand over to Adv Mpofu to continue the cross-examination.

Adv Mpofu: There are two issues around the topic of beneficiaries; one of them we have covered that is regarding the outstanding information from Mr Maimane and then the other issue is one where everyone seems to agree - Mr Samuel, Mr Kekana and anyone else who was involved in this - that it was the collective view of the team, that there was no need to get into details regarding the issue of beneficiaries. That was not the focus of the investigation. Correct?

Mr Ndou: Based on the issues that were identified for investigation, yes.

Adv Mpofu: Everyone shared this view. Did you share that view as well?

Mr Ndou: I did.

Adv Mpofu: The Portfolio Committee, apart from the issue of the politician's direct involvement, was that the issue of beneficiaries also needed to be probed. And it was probed in the, let us call it, the second round report. Are you aware of that report released in 2020?

Mr Ndou: I do not know the date but I know it was completed and released.

Adv Mpofu: This was correspondence from the PP to you and others on 7 February 2018; the day before the release of the report. And some of the issues that show her still raising even at that stage: “Section 1 is confusing, the response to section 7(9) not included in all issues and disputes. Mr Ndou and team, let us meet at 10 in the morning, not happy with some of the information. Mr Nemasisi bring along your comments.” So this was a wide ranging commentary and instructions to various people at the last minute. Correct?

Mr Ndou: Mr Ndou: Correct.

Adv Mpofu: And the purpose of me putting this up is just to demonstrate that the Public Protector, even on 7 February was not aware that you were on leave. I think you covered that last week and so that was why she was still dishing out instructions with your name. Correct?

Mr Ndou: Correct.

Adv Mpofu: We know that you were not available for that meeting at 10 o'clock in the morning because you were at your interview, correct?

Mr Ndou: That is right.

Adv Mpofu: And, more importantly, the Public Protector was still putting emphasis on the response to the section 7(9) notices, one of which is the one we just read from the Premier. That would have included the response to your follow-up letter. Correct?

Mr Ndou: Correct.

Adv Mpofu: Again, you may not remember it blow by blow, but the response to your follow up letter, did it cover some of the issues that you had raised?

Mr Ndou: The response from the Premier? Yes, I think it did cover some.

Adv Mpofu: So, you were happy. You may not have been 100% happy, but you did not have to do another follow up. Just to emphasize the point around the Gupta Leaks, I think we have covered this but just for the sake of emphasis, if you go to page 811, you will remember this as the version that included many comments from Mr Nemesisi.

Mr Ndou: Yes.

Adv Mpofu: In paragraph D, which used to be paragraph C, makes the emphasis again. At that time, the articles were referred to as ‘recent’ because the Gupta emails had just been discovered. It says, “The recent newspaper articles on the emails (they surfaced around June 2017) referring to the project are noted, but do not form part of the scope of this investigation.” Remember that?

Mr Ndou: Yes.

Adv Mpofu: And then he said in his comment, he says, “This needs to be clarified. We may also indicate that we did not investigate how the money transferred to Estina was spent because the Hawks investigation is at an advanced stage.” So that was again was part of the culture that if there was a parallel investigation by another state organ, then you would leave the matter at that level so that there were not parallel investigations.

Mr Ndou: Yes, as a matter of principle.

Adv Mpofu: It was also a matter of practice and policies. The remedial action was covered the previous week action. Page 3805, you were asked about this letter. Again, this was 7 February 2020 at half past eight in the evening, on the day before the release of the report, and I'm not going to go through that. But you will remember, that email covered some of the concerns from Mr Nemesisi, who was one of the last lines of defence at Legal Services. Whether his concerns were addressed or not addressed is an issue for another day, but the point I want to make here is if the issues that he raised had anything to do with the so-called direct involvement of politicians. Correct?

Mr Ndou: Just going to read quickly so that I confirm something.

Adv Mpofu: In the second paragraph, you see that he confirms that there is what I call the shortage of the bank statements from Estina which could be used to verify the expenditure on the project. And then he said, “If Estina refused a subpoena could be issued for them to provide those bank statements.” So this was an area of concern for him. Then the next one deals with the issues identified for investigation. He has, in other words, issues that might still be investigated in another round or by other people. This may be relevant to the complaint. That is the paragraph after the bank statement issue.

Mr Ndou: I think my reading of this one is he wanted this to be part of the same investigation.

Adv Mpofu: Fair enough. So identified for investigation and it is not clear whether it is external or the same investigation but you get the impression that ultimately it is for the same investigation. The last issue is just to double check if the 7(9) was sent to the HOD and he says, “As they are the key people on the project, they are implicated one way or another. The above can be obtained and incorporated into a final report before 10 February 2018.” Okay, so you are right. You are seeing that there would have been a week or two delay. Then he says, “There is a lot of public interest in this report and you need to ensure that you cover all the angles.” So he raised those issues. The Public Protector’s evidence will be that these issues were then negotiated between her and Mr Nemasisi and everyone else and the decision to go ahead with the release was reached by consensus, but you were not there.

Mr Ndou: I was not party to that.

Adv Mpofu: If we could go to page 726. That would be the memorandum from you to the PP. This is now spanning the period of your involvement since the previous year. Correct?

Mr Ndou: Correct.

Adv Mpofu: It is just a blow by blow account of what has happened, issues that were investigated and which issues are not investigated, in quite significant detail. Page 739 point 7. I'm just interested in 7.3. So these were the issues that, even at that stage, you had identified as some of the issues to be to be incorporated. The one was the recent submission from the Premier ‘s office. That would have been the response from your follow-up letter. Correct?

Mr Ndou: That is my understanding.

Adv Mpofu: The next one was the internal legal opinion in regard to the PPP. That would be the report from Mr Nemasisi and his team which concluded that this was simply not a PPP as well.

Mr Ndou: Yes.

Adv Mpofu: Mr Tebele testified that he prepared it for Mr Nemasisi or they worked on it together. Did you know that?

Mr Ndou: I heard his testimony but I did not know beforehand.

Adv Mpofu: Then there is the issue of the beneficiaries, which we have covered. And then you were awaiting for the evidence as undertaken by the leader of the DA. Correct?

Mr Ndou: Correct.

Adv Mpofu: Then your conclusion was that the draft report did focus on the issues raised in the complaint? In other words, the complaint had been covered, broadly speaking. Correct?

Mr Ndou: Correct.

Adv Mpofu: It was not unnecessarily expanded or narrowed. Correct?

Mr Ndou: Correct

Adv Mpofu: And then the task team was also aware that there were external processes which were being undertaken in respect of the matter. And the grand conclusion was that after the completion of the tasks mentioned in 7.3 above, the team should be able to submit a report - that would be the precursor to the final report. But there are no other outstanding issues that you had identified as a team. Correct?

Mr Ndou: Correct, not outside of these ones that we have discussed.

Adv Mpofu: Now, last week, you made it very clear to both Adv Bawa and myself, that you are not here to make any allegation about the PP, which would suggest that that you were victimised, harassed or intimidated at any stage, correct?

Mr Ndou: Not as it relates to me. No.

Adv Mpofu: You specifically denied that you ever told anyone that you were unfairly targeted by the PP, correct?

Mr Ndou: I've never told anyone that. Yes.

Adv Mpofu: You can blame yourself for choosing the wrong legal representative. When you have an HR issue, you are represented by Mr Samuel. And he's the one that said you were unfairly targeted by the PP. He certainly did not get that from you, correct?

Mr Ndou: I don't recall any such discussion with him.

Adv Mpofu: To the extent that you were charged you, it was not as Mr Samuel put it, that you were inexplicably charged. But you knew about the matter? You knew about the HR issue relating to yourself, correct?

Mr Ndou: Yes. Because I had been placed on suspension.

Adv Mpofu: The long and short of it is that you resigned before that disciplinary hearing could take place, correct. Or put it this way, by the time the disciplinary hearing took place, you had already submitted your resignation.

Mr Ndou: Yes, correct. Can I speak at least on the record, please? My indication from the employer was that the matter was completed. When I resigned, I was not aware that the matter would still proceed.

Adv Mpofu: Okay, that is important information. So it is not as if you resigned to run away from the matter. Is that what you are trying to explain?

Mr Ndou: Yes, and can I also raise another issue? Chairperson, this is the part that Adv Mpofu said he would like to raise in camera.

Chairperson: I shall watch that space, but continue answering the questions.

Adv Mpofu: I'm quite aware of it. That is why I am kind of skirting around it. But, if you feel uncomfortable, please do indicate. I'm not even describing the issue, I'm simply presenting details. I have just noted that you were aware of the HR issue.

Mr Ndou: I was.

Adv Mpofu: You have indicated that you did not submit your resignation with an awareness that the matter had been revived. And you have never said that the PP was responsible for reviving the matter in order to cast aspersions or to cast shadows on your future prospects. Correct?

Mr Ndou: Correct. My sense was it was the complainant who was pushing.

Adv Mpofu: But in fairness, Mr Samuel did not attribute this to you. But for the record, I want to make it clear that he did not get this from you. He says in a statement, “I could only conclude that the PP wanted to have these unresolved allegations of misconduct on his record, casting a shadow over his future prospects.” You never told anybody this. That might have been his view, but it was not from you. You will find that on page 21.12 of Mr Samuel’s statement. You said you had been there for about 20 years. Is that correct?

Mr Ndou: Plus minus.

Adv Mpofu: Yes. You might want to assist the Committee as someone who had been around some time, particularly on this issue, because there seems to be two schools of thought. You have already assisted us in respect of the audi letters. There is a view advanced by people, like Mr Tebele, that this was a good thing in the sense that as it happened in your case, if someone gave a reasonable explanation, that would be the end of the matter, without it getting into your record or anything like that. Would you agree with that?

Mr Ndou: Yes.

Adv Mpofu: There is another view and it is that the granting of somebody the opportunity to exercise their rights of natural justice to make representations was a form of harassment. You don't share that?

Mr Ndou: Personally, for me, it depends on how the audi letter comes. For example, people have the perception that with the smallest mistake that they make, there will be an audi letter. Then perhaps there might be the perception that it is intimidating. But on principle, if something has gone wrong and you are given an opportunity to respond, in terms of the law, it is a good thing. Yes.

Adv Mpofu: Thank you. In any event, I accept that. That situation would obviously be better than what happens in other employment places where if you are perceived to have done something wrong, you are given a warning letter, as a first step. So it is better to precede that with something that is not going to be on your record.

Mr Ndou: Correct. Comparing the two, yes.

Adv Mpofu: You yourself have not experienced any victimisation or harassment or intimidation. Correct?

Mr Ndou: Not from where I'm sitting.

Adv Mpofu: Some bizarre statements have been made here that the Public Protector asked people to call her, “Madam”. Have you ever heard of anything like that?

Mr Ndou: That is a new one to me. Perhaps I had left. I am hearing it for the first time.

Adv Mpofu: Yes. I know. Well, you are hearing it for the first time because it is just an imaginary thing. But in your experience in all the years that you are there, it was always Public Protector or PP, not so?

Mr Ndou: Usually PP. That has always been the case.

Adv Mpofu: Yes. And that never changed with any of the PPs that you worked under?

Mr Ndou: Not to my knowledge.

Adv Mpofu: And the other one was about how people had to bow down to the Public Protector, Buddha style. Have you ever heard of such a thing?

Mr Ndou: No.

Adv Mpofu: And the last one was, and this one I can imagine if there was a meeting and the Public Protector walked in, people would stand up. That was a practice that was there even for the previous Public Protector. Correct?

Mr Ndou: Yes, in meetings.

Adv Mpofu: There is a formal meeting in a boardroom, when the Head of Department in government departments, or the executive authority, enters, some people would stand up and that happened with the previous Public Protectors as well.

Mr Ndou: That happened even with Adv Madonsela, especially the top management.

Adv Mpofu: Thank you. Just a question, if the opportunity arose, would you serve again at the Public Protector?

Mr Ndou: Yes, I would.

Adv Mpofu: Thank you very much. I am finished for the present.

Chairperson: And that is the end of our cross examination. I will now proceed to Members.

Committee questions to Witness: Reginald Ndou

Dr A Lotriet (DA): I would like to have clarity on the following in your affidavit. In paragraph nine you refer, under the approach to the investigation, that you sat in the CEO’s boardroom to look specifically at the receipts of what was purchased at the Vrede Dairy Farm; you state who was involved and then basically who then left at what particular point. What was the outcome of that meeting in terms of the receipts because later on you say you still did not have sufficient information about this.

Mr Ndou: My recollection at that meeting was that we could come up with only nine receipts that related to the purchase of cattle. That was it. That prompted me when I wrote to the Premier to indicate that there was still some information that was outstanding, including invoices and receipts. So that was how we concluded the meeting. I don't know if I've answered the question to your satisfaction.

Dr Lotriet: So you said then you then went to the Premier to get the additional information and that was not part of the section 7(9) letters.

Mr Ndou: That was in response to the section 7(9) letters. I can state that one of the issues that the Free State officers indicated was that they could not get all the information that they required from the Premier's Office or from the Free State Department. That is why then when we were sitting on the day, the main task of the day was to look at what was submitted and to identify what was missing, and so on. That was the exercise of the day.

Dr Lotriet: Thank you. And were any reasons provided by the Premier's Office or the Administration as to why they could not produce those receipts?

Mr Ndou: I cannot really recall whether there any reasons were advanced.

Dr Lotriet: And you did not follow that up at a later stage.

Mr Ndou: Not that I recall. No.

Dr Lotriet: Then I want to turn to paragraph 12. This refers to the cell phone call that the Public Protector made to you after that meeting. How did you interpret what you state in 12.2, that the PP would personally be happy if there were no adverse findings in this report? How did you understand that?

Mr Ndou: My understanding was that whatever evidence was found in the investigation should not be regarded, because the evidence would then lead to adverse findings. That was my interpretation of that statement.

Dr Lotriet: Have you ever encountered this before?

Mr Ndou: It was my first time.

Dr Lotriet: You also said further on that you actually informed Adv Cilliers of what the PP allegedly told you, i.e. that she was doing the bidding of the DA. How did Adv Cilliers react to the statement when you told her this?

Mr Ndou: My recollection is that she denied it, and, if I'm not mistaken, she said she belonged to a completely different party. I cannot remember which, but that was her reaction.

Dr Lotriet: And then my last question. Regarding the report where you said you were not part of the final meeting, the one about capacity and financial constraints. You also said in your oral evidence that in most instances, you suffered from financial constraints and capacity was a thing in the ordinary course of things. In the normal course of things would a report state that you had such financial problems, or was this something that you were not used to?

Mr Ndou: I cannot recall any other report that specifically referred to the issue of financial constraints affecting the report. That is the only one that I can recall.

Ms J Mananiso (ANC): My first question to you is with regards to your affidavit page 42. You indicated that you received a text message from the PP instructing you to return to work, but you did not. Does that not equate to insubordination as you defied an instruction from the head of the institution?

Mr Ndou: I had to balance how I would be perceived, especially from an outside organization that invited me for an interview at a very high level, and the fact that already, when the Public Protector sent me the email I had already applied for leave. Those were the two contrasting interests that I had to balance, which is why when I went back to the office, I expected some recrimination.

Ms Mananiso: My second question to you: when you received the SMS, did you feel intimidated or threatened? How did you feel?

Mr Ndou: If I had felt intimidated, I would have returned to the office. I did not return to the office immediately because the SMS was very clear. I would have returned to the office, but I did not feel intimidated. That is why I did not return to the office. I thought I would explain it on my return to the office.

Ms Mananiso: If you are given an opportunity to actually classify the leadership style of PP, what would you say?

Mr Ndou: If truth be told, I don't think I can describe the leadership style of any of my previous principals. People have different attributes and so on, so I am not really sure I can come out with an answer that makes sense to anyone sitting here.

Ms Mananiso: Okay. Then, Mr Ndou, in paragraph 43, you indicated that you anticipated the possibility of there being adverse consequences for not going back to the office on your leave day. What do you say to the suggestion that there was a culture of fear within the organisation.

Mr Ndou: Most of you know that the top management, especially at head office, are legal people. So for me, I would deal with any action based on what the law says, so I wasn't intimidated. I would have dealt with it on its merits, like any other matter, that came towards me.

Ms Mananiso: The manner in which the investigations were handled, do you think that the PP failed the poor and the vulnerable? My question is, in the manner in which the investigation was handled, do you think that the Public Protector failed the poor and vulnerable in this regard?

Mr Ndou: Not having looked at the beneficiaries, for example, and what they got from this project, I am not sure. At least at the stage that the investigation had been concluded, there is an argument to be made, that perhaps we could have looked at the beneficiaries because ultimately the project from my understanding was supposed to be about them. So from that perspective, yes, I think we could have done better.

Dr M Gondwe (DA): Mr Ndou, you have indicated that you cannot describe with certainty the leadership or management style of the various incumbents you have had the privilege of serving under for the plus or minus 19 years working in the Office of the Public Protector, but I have to ask you this: how would you contrast the management or leadership style of Adv Mkhwebane with that of Adv Madonsela?

Mr Ndou: I'm still trying to come up with an answer that would place on the one hand Adv Mkhwebane and now Prof Madonsela. The one thing I can say about Adv Mkhwebane was there would be a lot of emphasis on deadlines, for example, whereas during Adv Madonsela’s time that did not come out as much. That is the best I can do in terms of comparing them. I'm not sure if I can give you any response beyond that.

Dr Gondwe: My next question is, as someone who occupied a senior management position within the Office of the Public Protector, in your opinion, and I'm asking this on the basis of you having been in the office, did you ever get the distinct impression that the Office of the Public Protector and Adv Mkhwebane maintained close relationships or links with the State Security Agency (SSA)? I'm asking this because we heard evidence last week that the Office of the Public Protector maintains close links or relationships with SSA. This Committee was informed that an official from the SSA sat on the appointment panel that appointed Mr Baldwin Neshunzhi. We also heard that the SSA even seconded someone to act as CFO at the Office of the Public Protector.

Mr Ndou: My sense, given three things, would be to say I sensed that there was open communication between the SSA and us. I had been involved in the project before Adv Mkhwebane came to the office and had put together a case management system but it wasn't finalized, but I was aware that at some point, the State Security Agency wanted to put together a system for us. That is the one incident. The second one related to the appointment of Mr Baldwin Neshunzhi. The fact that there was somebody from State Security suggested to me that perhaps there was an open communication with State Security. Those are the incidents that I can think of.

Dr Gondwe: Were you there at the timesomeone was seconded from the SSA to act as CFO?

Mr Ndou: Yes.

Dr Gondwe: Do you recall the name of the gentleman?

Mr Ndou: No, I cannot. It is quite some time back.

Dr Gondwe: Okay. All right. We have heard evidence from several witnesses suggesting that Adv Mkhwebane made top secret security clearance a prerequisite for some of the employees at the Office of the Public Protector, especially senior officials. Do you know why this was the case and, to your knowledge, did officials or senior officials of the Office of the Public Protector work with documents that can be categorized as being classified as top secret in the course of their day to day duties?

Mr Ndou: The issue of top secret pre-dated Adv Mkhwebane's time. I for one, for example, by the time I left, I had a top secret clearance that had just expired. This dates back to if I'm not mistaken to Prof Madonsela’s time. On the issue of document classification, my sense is that we did not then go to the next step of saying this document is classified as top secret, so it can only be seen by somebody who has a top secret clearance. I don't think we went to that second step. But in terms of security clearance, there was top secret or secret and so on.

Dr Gondwe: I now want to ask you questions around the Vrede Dairy investigation. In paragraph 14 of your affidavit, you say that you left the meeting that was held in the CEO’s boardroom to go home and on the way home the PP called you to tell you that Adv Cilliers was doing the bidding of the DA and that she would be happy if there were no adverse findings made in the report. You stated in your evidence-in-chief, that you understood this to be more of a desire than an instruction. If this was indeed a desire on the part of Adv Mkhwebane and not an instruction, why do you think she felt the need to convey this desire specifically to you and not any other staff member?

Mr Ndou: I wouldn't know. I was just reporting the contents of the conversation that we had. My sense off the top of my head would be, since I was the highest person in the branch that dealt with the matter, if she wanted to express a desire, then it would have been to me. That was my sense.

Dr Gondwe: You stated in your evidence-in-chief that you shared what the Public Protector told you over the phone with your team. Please confirm if you shared this with Mr Kekana and Mr Samuel? And if you did share it with them, please indicate what you said to them. Did you tell them that you believed that it was more of a desire than an instruction. I'm asking this because Mr Kekana informed the Committee in his evidence that the instruction was not to make any adverse findings against politicians from Adv Mkhwebane, and that was relayed to him by yourself. This was corroborated by Mr Samuel in his evidence.

Mr Ndou: I remember what I shared was what I say in my affidavit about the way it was expressed to me. I don't recall a discussion going into specifics, whether this would include not making findings against politicians. I wouldn't want to come here before the Committee and say it was a specific instruction to say don't make findings against politicians. I reported it to them as I recalled the conversation, which is what I've included in my affidavit. I did share it with Mr Kekana because he was part of the team that was assisting me. I did share it with Mr Samuel as well, since the report emanated from his office.

Dr Gondwe: In your opinion, why then was Adv Cilliers subsequently removed from the investigation and excluded from the task team that was established to finalise the report. If Adv Mkhwebane said to you over the phone that it was merely a desire or a wish and not an instruction?

Mr Ndou: The task team was my own initiative. It was a task team of people who were in the vicinity within Pretoria. All the test team members were stationed in Pretoria and that is the reason we did not include Adv Cilliers, because the file had been brought over to head office and the task team would be sitting together and going through the file itself, which would have made it a bit difficult to include Adv Cilliers who was still stationed at the Free State Office.

Dr Gondwe: Okay, so you did not exclude Adv Cilliers from this task team, because Adv Mkhwebane had indicated that she was doing the bidding of the DA.

Mr Ndou: Not at all.

Dr Gondwe: Alright, my last question. In paragraph 43, of your affidavit, you say that when you returned to the office from leave, you received a notice in the form of an audi letter, am I correct? Please confirm who issued you with the notice and whether you believe that this notice was issued under the instructions of Adv Mkhwebane?

Mr Ndou: As far as I can recall, the notice was from Ms Motsitsi, who was then acting as the CEO, or COO, but I think it was CEO, and I reported to her directly then. I had no inkling that this would have been a sanction from the Public Protector herself. But I'm sure the issue of my being on leave on the day and the fact that the Public Protector sent me an SMS saying my leave was withdrawn would obviously have been an input from the Public Protector. As to whether it was an instruction from her, I cannot say.

Dr Gondwe: Thank you.

Mr B Herron (GOOD): Mr Ndou, I just want to go back to your first involvement with the Vrede Report. Were you were involved in the Vrede investigation prior to the task team being established in late 2017. Had you had any prior involvement with the Vrede Dairy matter?

Mr Ndou: No, I did not.

Mr Herron: Did you have any awareness of the Vrede investigation prior to heading up the task team?

Mr Ndou: Yes, I would have because it would have served before the Think Tank.

Mr Herron: Does this go back to the period when Adv Cilliers was heading the investigation in the Free State under the previous Public Protector, Adv Madonsela? Did you attend Think Tank meetings during that time?

Mr Ndou: Yes. I am not sure at what point it was placed on the agenda of the Think Tank, but it would have been at some point. Yes.

Mr Herron: So you were aware of the report before then before you took over as part of the task team. In that time, can you recall if Adv Madonsela ever issued instructions that politicians should be investigated? At any of the meetings of the Think Tank?

Mr Ndou: I really cannot recall.

Mr Herron: Mr Samuel gave evidence that Adv Madonsela was never happy with the report that was being drafted in the Free State, because it did not implicate politicians. Did that ever come up in a Think Tank meeting?

Mr Ndou: Not that I recall.

Mr Herron: At any Think Tank meeting that you can recall, was there ever an instruction from Adv Madonsela to Mr Samuel or to the Free State investigators, to include politicians in the investigation?

Mr Ndou: Not that I am aware of.

Mr Herron: When the matter was handed over to the head office, and you were asked to form this task team, how did the task team work? There were four of you in the task team, Mr Kekana, Adv Nditsheni Raedani, Mr Samuel, and yourself. Is that correct?

Mr Ndou: Just to indicate that I was not instructed to form a task team; it was my own initiative. The reasoning behind that was that at the time that the file was transferred to head office, I did not have investigators in my branch; they were not yet transferred to my branch, which is why I had to then ask the Public Protector to form a task team of investigators who were not within my branch to be part of this task team.

Mr Herron: So when the file was handed over from the Free State to the head office, it was essentially handed to you and your branch, but it was your suggestion that a task team be established?

Mr Ndou: Yes. It was my own initiative.

Mr Herron: And did you identify who should be part of the task team?

Mr Ndou: Yes, I did.

Mr Herron: And the Public Protector agreed to those members.

Mr Ndou: Yes, that is my recollection.

Mr Herron: And then how did you work with this investigation? I'm specifically referring back to your answer to Adv Mpofu last week, where you said that you only looked at the latest report and we had Adv Raedani who gave evidence that he had read all the reports. So I'm trying to understand how you worked as a task team. Was that a task that Mr Raedani had been given and you only read the most recent version of the report whilst he was asked to read all the reports.

Mr Ndou: I was not part of the task team. They were the task team that I put together to go through the file and the evidence and the reports. Then they had to report to me.

Mr Herron: And did you ever look at any of the evidence?

Mr Ndou: Do you mean as a task team?

Mr Herron No. You as Mr Ndou?

Mr Ndou: Yes. On the 6th and the 7th, when we're finalizing the report, we did look at the evidence to see if it supported the findings.

Mr Herron: And was there any evidence that would implicate the politicians in wrongdoing?

Mr Ndou: Not beyond taking action against the HoD, as far as I can remember.

Mr Herron: When Samuel gave evidence, in his affidavit in paragraph 177, which is on page 2133, he says that he did not feel that the report had gone far enough and that in his view the politicians’ wrongdoing had not been limited to failing to take disciplinary action, which I think contradicts what you have just said in terms of what you found in the evidence. He gave evidence that he formed this view based on politicians' taking ownership of the project in public and he mentioned that the Premier had included the project in a State of the Province Address. Would that ordinarily constitute evidence of wrongdoing?

Mr Ndou: Not from where I'm sitting now.

Ms M Sukers (ACDP): Mr Ndou, when you were acting CEO, did you apply for the permanent position?

Mr Ndou: Just to indicate that was not my first acting CEO stint. Just to put that on record. And I did apply for the permanent position.

Ms Sukers: Were you told why you were not successful?

Mr Ndou: Yes. I recall myself and Ms Mogaladi, who had also applied for the position, were individually called to the Public Protector’s office and informed that someone with more experience had been appointed.

Ms Sukers: Just for the sake of time, I will leave that follow-up question out. I want to go to the Vrede Dairy Report. It has been stated that the Vrede Dairy Report was long delayed, it was urgent and it was very important for Public Protector South Africa to release it. From your evidence, the Public Protector’s approach to setting due dates for reports seems to have been rather ad hoc. For example, you state the Vrede Report could have waited a few days. How were due dates for reports determined?

Mr Ndou: If we were at a task team meeting, sometimes the Public Protector would ask us how long a report would take to be finalized and then we would give an indication. But sometimes, depending on the urgency of the matter, then she would indicate that she would want the report by a certain date.

Ms Sukers: Was there any sort of corruption hotline at the Public Protector South Africa that was monitored by an independent body to which staff could report misconduct or a whistle blower hotline?

Mr Ndou: If I recall correctly, at some point, I don't know whether during Adv Mkhwebane’s time, there was a the hotline. At some point, we did have it. I cannot remember the timeframes between which time and which time.

Ms Sukers: So are you are you saying, Mr Ndou, that there was a safe place, and I'm talking about in your recent memory under the authority of the current Public Protector, where staff could, without fear of reprisal, report senior staff members who instructed or indicated that they wanted something improper done?

Mr Ndou: No, not that I'm aware of, in my recollection.

Ms Sukers: You said you were looking for another position in February 2018. Now let me state that when an employee puts in for annual leave and says it is for personal reasons that that should be sufficient. Wouldn't you agree an employee doesn't need to justify the leave?

Mr Ndou: I would agree with that.

Ms Sukers: So my question, what was the reason, at that time, for you to look for new opportunities and eventually for you leaving the Office of the Public Protector?

Mr Ndou: It was not the first time I had tried for positions outside. I had been applying for quite some time. Even before the allegations that were made against me, I had been applying for positions, including as a Commissioner at the Public Service Commission, where I was interviewed in Cape Town. My sense was that I had been at the Office for quite some time and I needed a new challenge. That was the reason.

Ms Sukers: I did not hear your answer earlier to whether you would return to the Public Protector's Office? Could you just repeat what your answer was?

Mr Ndou: I said, yes, given the nature of the work, I would.

Ms Sukers: Mr Ndou, what quality control measures were in place to ensure Rule 53 records were complete. And when it was found they were not complete, what quality control steps were taken to ensure that these records were complete?

Mr Ndou: My recollection of Rule 53 records is that we would be asked to bring over the file to Legal and then Legal, would look at the file in terms of what is there relating to reports and so on. If there was a report missing, then they would ask us for information and whether we had copies of the report, but that is my sense. It would be done at Legal Services, then they would indicate to us what was missing. It is not something that was done at branch level.

Ms Sukers: I think my question goes perhaps to the issue of when the Public Protector was found lacking in that regard. In your experience, were any corrective measures taken or quality control measures improved when gaps were identified? Not internally - I understand the internal process - but externally when there were adverse findings of any kind that pointed towards gaps, such as incomplete records. Were any corrective measures put in place?

Mr Ndou: No, not that I know.

Ms Sukers: You worked with many Public Protectors. Anyone other than Adv Mkhwebane ever express a wish like the wish that you said that she expressed to you as per your affidavit?

Mr Ndou: No

Ms Sukers: Was there any other person, Mr Ndou, other than yourself, and I heard your answer earlier, that felt targeted, bullied or intimidated by the Public Protector?

Mr Ndou: Not anyone who expressly expressed that to me, no.

Chairperson: Thank you, Mr Ndou. That takes us to the lunch break.

[Break]

Mr K Mileham (DA): Mr Ndou, are you aware of the court judgment in the DA v Public Protector and CASAC (Council for the Advancement of the South African Constitution) v Public Protector case in the Gauteng High Court?

Mr Ndou: Yes, I am.

Mr Mileham: And you are aware that Judge Tolmay made findings that the Public Protector was wrong in fact and wrong in law with regard to the Vrede Dairy Report? Do you have any comments on it?

Mr Ndou: It speaks to the extent of the investigation in respect of the evidence, and the application of the law to the facts, as found in the matter. That would be my comment.

Mr Mileham: Let me talk a little bit about the urgency of the release of the report in Mr Nemasisi's letter of 7 February 2018. That is LRN 15 that was attached to your affidavit. He indicates that there is a significant amount of information outstanding, and that this should be obtained with an eye to releasing the report on 22 February 2018. Is that correct?

Mr Ndou: Yes.

Mr Mileham: Why do you think the Public Protector, having had sight of his letter with his comments and this information that is outstanding, was in such a rush to release an incomplete report on 8 February?

Mr Ndou: Perhaps it might have been due to the pressure that was in the media. But for me, there is an answer to that one because the one thing that we could have done was to write to the DA and indicate that we were still busy with the report and there are still issues that we were looking into and would finalise and submit the report when we were done. Indeed, I indicated last week, if I am not mistaken, that I felt that the report could have waited until the issues identified by Mr Nemasisi were covered. Although the timeframe that he gave, for me wouldn't have sufficed, because he identified new issues. And which would have meant then that we would have to issue new section 7(9)s in the two week period that he was looking at. I do not think it would have sufficed. So for me, I do not think that it was the right decision to issue the report on 8 February. It could have waited.

Mr Mileham: In Judge Tolmay’s findings, one of the things that she identifies is that the contact details of the beneficiaries were readily available to the Public Protector. In fact, the Office of the Public Protector had the names and numbers and even the ID numbers of at least 20 of the beneficiaries. Why weren't they contacted during the investigation?

Mr Ndou: I am not sure why they were not contacted during the initial investigation. At the time that the report was finalized, as I indicated last week, there was a push for the report to go out. So if it were not for that, I am sure this could have been done in time, including other beneficiaries that would have been identified.

Mr Mileham: The push from the Public Protector?

Mr Ndou: And Ms Motsitsi indicating that report needed to be finalized that week.

Mr Mileham: Were you aware that Adv Mkhwebane had private and unrecorded meetings with Mr Ace Magashule during the course of the investigation?

Mr Ndou: No, I was not aware.

Mr Mileham: Do you consider such meetings with an implicated person appropriate?

Mr Ndou: If they did take place, no, I would not.

Mr Mileham: Why did the report change so significantly regarding the findings from the provisional version to the final version? Specifically, why was the comparison to market prices not done? And why was the earlier finding regarding the inflation of prices excluded? There was an earlier finding in the provisional report about inflation and prices? Why was that excluded?

Mr Ndou: I wouldn't be able to speak to that because my recollection is that that change would have happened on the 8th. I was not part of that meeting, so I wouldn't be able to speak to why that change was made.

Mr Mileham: Was there any evidence provided by the Public Protector that Adv Cilliers was in any way biased in her investigation?

Mr Ndou: No, there was not.

Mr Mileham: Had she at any point prior or subsequent to the Vrede Dairy report been accused of or demonstrated any bias in her investigations?

Mr Ndou: Not that I know.

Mr Mileham: A number of people have asked you about this, but I just want to go down a different route. You got an audi letter for taking leave which had been properly authorized. Were audi letters a common threat to staff at the Office of the Public Protector?

Mr Ndou: I can recall a few that I know of.

Mr Mileham: Were people scared of getting them?

Mr Ndou: Some people, yes.

Mr Mileham: Had the use of audi letters increased under Adv Mkhwebane?

Mr Ndou: In my time with previous Public Protectors, I had not been aware of any audi letters. So it is not a matter of an increase; it was almost something new, if I can put it that way.

Mr Mileham: What did that do to staff morale and the culture in the Office?

Mr Ndou: Speaking of the two instances that I was personally involved in, one was the Provincial Representative (PR) for the Eastern Cape and she did not take kindly to that, if I can put it that way. The other one related to the PR from Mpumalanga and also he was not very happy about it, given the circumstances surrounding what had happened.

Mr Mileham: We saw evidence yesterday that Mr Sibusiso Nyembe at the time was a Special Advisor to the Public Protector. I am going to use the words that were used in his tweet "I also jerk up legal services on high-level litigation matters like … Vrede dairy farm matter.” What was his role in the investigation or in the drafting of this report?

Mr Ndou: My recollection regarding Mr Nyembe’s involvement, the first time I saw him involved in the report, if I recall correctly, was when we were dealing with the review application by the DA and CASAC. That is the only instance that I can remember. I cannot speak to other instances where he was seen to have jerked up Legal Services.

Mr Mileham: And do you think it was appropriate that he played that role?

Mr Ndou: Personally, I do not even understand what a special adviser, not coming from a political background, would be responsible for in the Public Protector’s Office. I was not even aware of his qualifications. So I would have thought that would have been an issue between the team, the Public Protector and perhaps Legal Services.

Mr Mileham: My last couple of questions from…

Chairperson: This is your last question.

Mr Mileham: Thank you Chairperson. In the High Court judgment, it is noted that the Public Protector contended in her final report that she did not have the legal power to instruct the SIU (Special Investigating Unit) or the Auditor General to conduct an investigation. The High Court finds that is legally incorrect. It was an error in law in that she assumed that she lacked such a power – that she was aware she did possess the power. Are you aware when the remedial action that it be investigated by the Auditor General was changed? And what prompted that change?

Mr Ndou: My suspicion is that it happened on the 8th when the report was finalised.

Mr Mileham: Okay, you do not know what prompted the change?

Mr Ndou: No.

Ms D Dlakude (ANC): Mr Ndou, can you please explain to us your relationship with the Public Protector?

Mr Ndou: I knew Adv Mkhwebane from the University of Limpopo, when I was a law lecturer there. She was never in my class. My recollection is that she was in a class that my brother taught. I think it was Criminal Procedure, if I am not mistaken. And if I am not mistaken, we might have started in the Office of the Public Protector at roughly the same time as senior investigators. That is as far as the relationship goes.

Ms Dlakude: What was your professional relationship in the Office?

Mr Ndou: It was between executive manager and principal.

Ms Dlakude: Okay, Mr Ndou, the reason I am asking this question is that I wanted to understand from your side if you also experienced what other senior managers and employees said that they experienced under the leadership of the Public Protector. They said they were intimidated and all sorts of things were mentioned. Did you ever experience such a treatment of being bullied by the CEO or the Public Protector herself?

Mr Ndou: As far as the CEO was concerned, I do not think I had any dealings with him, which I would characterise as perhaps intimidating. As far as the Public Protector is concerned, it was just the one instance when she indicated to me that my leave was cancelled forthwith and I was to report back to the office. That is the one incident that I can recall. I cannot recall any other.

Ms Dlakude: Mr Ndou, yesterday Ms Baloyi indicated that the PP did not provide employees with space to do their professional work. Did you ever experience that?

Mr Ndou: Are we talking professional space to say, as a professional, if I give you an investigation, you can run with it and then I can make comments - is that what we're talking about?

Ms Dlakude: Yes.

Mr Ndou: I cannot say I have unfortunately.

Ms Dlakude: Okay. Mr Ndou, you indicate that the PP raised concerns about Adv Cilliers who was working on the Vrede Dairy Report in that she was doing the bidding of the DA. That was confirmed by Mr Kekana who informed the Committee that Adv Cilliers was removed from the investigation because of this. What do you think informed this view of the Public Protector?

Mr Ndou: I cannot point to a specific incident that I know that would have prompted the Public Protector to say this to me in the telephone call that that I have already spoken about.

Ms Dlakude: In that very same telephone call that you spoke about in which the Public Protector told you that she did not want any adverse findings made in the reports. Did she specifically mentioned to you what she meant by this?

Mr Ndou: The conversation, as I recall it, is as I have recorded it, there was no explanation. And earlier I was asked about my understanding, and I indicated my understanding, but there was no explanation. It is as I recorded it in my affidavit.

Ms Dlakude: I am asking this question to have a better understanding of what exactly the Public Protector said because Mr Kekana and Mr Samuels said in their testimonies before this Committee, that the PP did not want any adverse findings against politicians. So as the person to whom the PP spoke, I want to understand for myself, because you conveyed the message to the others, exactly what she said. Did she say those words to you during the call that she did not want any politicians involved or implicated?

Mr Ndou: I indicated in the morning the communication that was expressed was that she would be happy if there were no adverse findings. I indicated in the morning, that for me, that would include politicians. Perhaps the other witnesses were specifically speaking to incidents that they might have witnessed but for me, to restrict it to politicians is actually a restrictive interpretation of what she said because she said no adverse findings. That would include the politicians, obviously, but there was no specific mention of politicians. It was very wide. That is how I recall the conversation.

Ms Dlakude: We have had evidence that the incumbent PP abolished the Think Tank, which was used as a quality assurance mechanism to assess reports before they are raised. In your observation, did the abolishment of that have a negative or positive impact on the quality of reports?

Mr Ndou: My sense is that the Think Tank, being a wider body of all the managers who are legally qualified, had a more positive impact on the kind of reports that went out of the Office of the Public Protector. My sense is that the smaller task team would have not had the same kind of effect on reports as compared to the Think Tank.

Ms Dlakude: We also heard evidence from Mr Kekana that the Vrede Dairy draft report, which was produced by the Public Protector’s predecessor Adv Madonsela, was changed. Were you part of the changing of that report?

Mr Ndou: The report that I personally worked on, if I am not mistaken, is dated September 2017 and that is the report that basically went to the Public Protector and to Legal Services under Mr Nemasisi. I cannot recall being part of a meeting that specifically changed a report, unless it related to looking at the evidence and the findings and comparing them to ascertain whether the findings were supported by the evidence.

Ms Dlakude: There were also allegations made by Mr Kekana that the Gupta Leaks were excluded in the report, though they had said they were going to assist with the investigation. What is your take on that?

Mr Ndou: I already spoke to this issue in the morning. But perhaps it bears repetition. My take, and I just need to indicate that Mr Kekana might have taken this from the email that I sent to the task team, alerting them to the fact that the Gupta emails, as far as the report was concerned, were too fall outside the scope of the investigation. And my take, then, was that it could have fed, or some of the contents of the of the Gupta emails could have fed into the investigation, specifically as it relates to how the funds that went into the dairy project were then used and so on. That was my feel that we could have, for example, looked at the bank statements of Estina and so on.

Ms Dlakude: Mr Ndou, in Public Protector South Africa there were many leaks of reports before they were actually released and Mr Kekana felt that he was wrongly accused of leaking those reports. As a senior person in the Office, what would you say about the leaking of reports before they were released, because previously it was not like that. Was this sabotage by staff members? Or what is your take on this?

Mr Ndou: I'll respond to the question but I just want to clarify something first. My understanding is that Mr Kekana’s charges did not relate to the leakage of any report, if I am correct. But on the issue of leakages of reports, we had that even before Adv Mkhwebane’s time. I did indicate that the reason we did away with so-called provisional reports, which we were doing during Adv Madonsela’s time was because reports would then be leaked, so then we ended up doing section 7(9)s. Leakages had been happening even before that. And partly it might be, for example, if one gets a provisional report, which says one's complaint is substantiated, one might actually leak it before the final report is signed off so that it is out there in the media, then the Public Protector would need to explain why then it has changed and so on. But the issue of leakages goes back to before the current Public Protector’s time.

Ms V Siwela (ANC): There are a few issues, which I would like to ask you about in relation to the audi letters that OPP employees were served with. We were informed that this was the responsibility of line managers. I believe that you were one of them. As a manager, have you ever served your subordinate with such?

Mr Ndou: Yes, I served two: one to Adv Thomas in the Eastern Cape office and a second one to Mr Sithole in the Mpumalanga office.

Ms Siwele: Have these letters had, in any way, an impact on the morale of the employees. What is your view on this? What impact does this have on the quality of work produced by these employees?

Mr Ndou: With regard to Adv Thomas, she actually had health problems and after I issued the audi letter, she indicated that she felt that, given her health issues, she would like to put in a request to the employer to be redeployed to the Mthatha regional office because she could not cope with the demands of the Provincial Office. There was no discussion about the impact that the letter had on her. But with Mr Sithole, my recollection is that it did have an impact because the reason the letter was issued, was related to not meeting targets relating to outreach. At the time, there had been an Exco decision to say outreach clinics should not be conducted in the way that we used to because the office was under financial constraints. So in respect of Mr Sithole, I know it did have an impact on his morale.

Ms Siwele: My last question is based on your experience working in the OPP. By explicitly, and without reason, excluding adverse findings in the report, did the PP act in a manner that sought to undermine the mandate of the OPP in any way? Did the PP fail to act in an impartial manner?

Mr Ndou: As I indicated in the morning it did surprise me that my principal would express a wish that there would be no adverse findings in this matter. This spoke to the issue of whether there was impartiality, whether it was perceived or real. But beyond this discussion we had telephonically, I cannot point to a specific incident or instance, which then said to me that she was undermining the mandate of the Office beyond this conversation that I have discussed.

Mr Zungula: Did you ever tell Mr Kekana that the PP accused Adv Cilliers of being a member of the DA?

Mr Ndou: My recollection is that I indicated to Mr Kekana and other task team members. The whole conversation as I have recorded it and that would include the issue of the adverse findings and remarks pertaining to Adv Cilliers.

Mr Zungula: So it is you who told Mr Kekana. You have testified that the PP expressed a desire that no adverse findings will be made without reference to any party, meaning the PP was not specific.

Mr Ndou: My testimony was the desire that the Public Protector expressed was not specific to politicians. I did not speak about it being in respect of a particular party. I just need to clarify that.

Mr Zungula: Then why do you think Mr Kekana and Mr Samuel were specific in saying the instruction was to exclude politicians, because you say the PP was general. However, these two gentlemen stated that the instruction was to exclude politicians. Why do you think that was so?

Mr Ndou: I did indicate in the morning and earlier that, for me, the findings related to anyone, whether it was bureaucrats or politicians, and I did indicate that perhaps in their interpretation, they restricted it to politicians. When I listened to Mr Samuel’s evidence, for example, he indicated that there were subpoenas against the then Premier and the MEC that the Public Protector refused to sign off on so that that might actually be why he restricted it to politicians. So maybe that is where it is coming from.

Mr Zungula: Okay. So in light of your explanation, would you say there are disgruntled employees or former employees who would seek to utilise this section 194 process to exact revenge on the PP?

Mr Ndou: For me, as a legal person, I think people will speak to their own experiences; I cannot really speak to their motivation. Our responsibility as I see it, is to come before this Committee to speak to what we know. I cannot really speak about disgruntled employees or ex-employees and so on.

Mr Zungula: Okay, as per the email that was shown by Adv Mpofu which relates to the Gupta Leaks and the correspondence between the PP and the lead investigators, would you agree that the PP had opened up the scope of the investigation, enough for you to explore all avenues?

Mr Ndou: With hindsight, I would say yes, but I wish the PP had shared that email with me when I indicated that I was a bit unsettled about the Gupta Leak emails. I am only seeing that email today, but it gives the sense that she had opened the investigation.

Mr Zungula: Would you then say that the narrative that she narrowed investigations is false?

Mr Ndou: Given the reports that I have seen and the email that was shared with me this morning, based on those facts, I am not sure that we can say that there was a narrowing of the investigation, especially given the email that was shared with us this morning.

Mr Zungula: Okay, let me rephrase my question. There is a narrative out there that the Public Protector wanted that investigation to be narrowed, and it must include a mass exclusion of certain people. However, from the email that has been shown today, would you agree that that narrative is false because the Public Protector’s instruction opened up the scope of the investigation?

Mr Ndou: For me, that would be a valid argument to say that the statute opened it up, given the email that was shared this morning.

Mr Zungula: Okay. Now you make mention of calls that you received from the Public Protector, right.

Mr Ndou: One call. Yes.

Mr Zungula: Yes, one call. Do you have any form of evidence that would support that call, even if it is a screenshot from your conversation or from your call log? Do you have any evidence to back up that assertion?

Mr Ndou: I was asked to obtain my telephone statement from the service provider which is Telkom and I did write to them, but they have not come back to me. So I do not have a statement that reflects the call; but the call took place.

Mr Zungula: But you do not have any evidence, as we sit here now.

Mr Ndou: Not of the telephone call, but recorded in my affidavit is the contents of the conversation.

Mr Zungula: Okay. You do understand maybe that narrative that seems to suggest that the PP victimised and harassed staff members and you also claimed that you were unfairly targeted by the PP. Is that correct?

Mr Ndou: I have not claimed to be targeted in my affidavit. And I think perhaps in fairness to me, the employees, whether it is current or ex-employees, who feel that they were targeted, should be able to speak for themselves, I cannot really speculate on that one.

Mr Zungula: Okay, now I know that it is Mr Samuel and Mr Kekana who say they were targeted. So from your from your perspective, why did you leave the Office of the PP?

Mr Ndou: I resigned to go and attend the Practical Legal School, which I did in 2019. I also wanted to start my own company, which I had registered and I had plans to go into business with a former colleague of mine who is from KwaZulu Natal, and that is what I went to do and why I resigned.

Mr Zungula: Okay, so you did not leave because you were harassed or targeted?

Mr Ndou: Not in my case, no.

Mr Zungula: Is there any other issue that would have transpired between yourself and maybe another employee that would have pushed you to actually resign and leave the Office of the PP?

Mr Ndou: The issue that you are referring to are the allegations that were made against me. For me, based on the facts that I knew, I had no fear that I couldn't answer to the allegations. One, I was exonerated by the report of a top law firm; two, there has also been a criminal complaint by the complainant in this matter. I just want to put this on record. When I was on suspension, I got a call from somebody who works for a unit in Pretoria East that dealt with such matters, that they had collected the docket in the criminal matter and that I should report to their offices the following week. The following week, they called me to say they had looked at the docket and there was no merit in the allegations. Then they sent it back to the Brooklyn police station, where it was investigated and the prosecutor declined to prosecute. So in short, that issue I could have responded to, so I did not leave because of the issue.

Mr G Skosana (ANC): In reference to paragraph 12. Do you agree that the information that the PP shared with you through a phone call was controversial?

Mr Ndou: Yes, I do.

Mr Skosana: Do you know of any other person that the PP shared such information with, other than yourself?

Mr Ndou: I do not.

Ms Skosana: Okay. Why did the PP choose to share such information with you of all people?

Mr Ndou: I wouldn't know. Perhaps it was because I was responsible, ultimately, as the Executive Manager responsible for Provincial Investigation. That would be my suspicion.

Mr Skosana: But were you a person that PP normally confided in?

Mr Ndou: In my recollection, in the time that I worked with the current team, I think we might have had only two telephony conversations.

Mr Skosana: Okay, so what was your response to the PP in that particular phone call?

Mr Ndou: I did not respond.

Mr Skosana: You just listened.

Mr Ndou: Yes.

Mr Skosana: In your email of 11 September 2017 to the PP, which is also highlighted under paragraph 26 of your affidavit, you made a good argument in the last paragraph of that email where you said, ”As an institution, we just need to have cogent reasons why this avenue was not explored, especially since we will make reference to them in the one-liner in case we are taken on review.” In the affidavit, if you look at paragraph 27, you are saying, in reference to the Mail & Guardian case in the email, “I was referring to the fact that the Supreme Court of Appeal had already indicated that the PPSA had to follow wherever the investigation led us. We could not be confined simply to the complaint.” That is what you said in the affidavit, but in the body of the email itself, there is no mention of the Supreme Court of Appeal. You were arguing about the fact that, as an institution, you need to have cogent reasons for taking this avenue in relation to the Gupta Leaks, explaining why the avenue was not explored, especially since you make reference to them. But we are not talking specifically about the fact that already there was a ruling of the Supreme Court of Appeal that speaks about the issue of following the investigation wherever the investigation leads and you're not supposed to be confined. Why in this particular email, did you not specifically make reference to the Supreme Court of Appeal ruling?

Mr Ndou: But I did refer to the case, the Mail & Guardian case.

Mr Skosana: You speak specifically of the ruling of the Supreme Court of Appeal in the email itself, but not in the affidavit?

Mr Ndou: I do understand what the question requires of me so I am struggling. I thought the honourable member was saying I only refer to the Supreme Court of Appeal in my affidavit.

Mr Skosana: Okay, let me let me rephrase my question. Does the email of 11 September also speak about the Supreme Court of Appeal ruling?

Mr Ndou: Yes, it does. It is referring to the same case.

Mr Skosana: OK. The next question is in relation to your leave. Who approved the leave that you are referring to in paragraph one of your affidavit?

Mr Ndou: The acting CEO Ms Motsitsi.

Mr Skosana: So did the Public Protector have powers to cancel your leave?

Mr Ndou: I have not really looked into the legalities of whether the Public Protector as executive authority would have been within her rights to cancel my leave. But my own view, legally correct or not, was that I was on approved leave which was approved before I was made aware that the Public Protector wanted to discuss the matter.

Mr Skosana: Did you not find it necessary to inform the PP directly that you were going on leave for two days since at that particular time you were working closely with other members of the task team to finalise the Vrede report? Did you not find it necessary to inform the PP?

Mr Ndou: Usually, the information would be to my supervisor, and not to the Public Protector.

Mr Skosana: Yes, I understand that kind of a protocol, but I am just saying that because at that particular period you were working very closely with the PP and the other members of the task team dealing with the Vrede Report. As much as the protocol requires reporting to the next senior person but the mere fact that you were working very closely with the PP dealing with this report, did you not find it necessary just to indicate that you would go on leave for two days, and it had already been approved?

Mr Ndou: With hindsight, the Public Protector was out of the country at the time. My communication after the SMS the Public Protector sent on the 5th through the acting CEO because the acting CEO kept on saying the Public Protector would like to see the report. So my sense was that I was liaising through the acting CEO.

Mr Skosana: Did you respond to the SMS or WhatsApp from the PP that said your leave was cancelled and that you should return to work immediately.

Mr Ndou: I do not recall responding to it.

Mr Skosana: So you might have responded.

Mr Ndou: I doubt that I responded.

Mr Skosana: So did you ever get a sense that employees were purged at the PPSA, particularly those who spoke out against things they perceived to be wrong.

Mr Ndou: During my time at the Public Protector, the only employee who had been fired was an Eastern Cape senior investigator, if I am not mistaken. All the other employee names mentioned in the affidavit were after my time at the Public Protector's office, so I really did not follow that much.

Mr Skosana: Alright. Under cross examination, you indicated that the PP said there was no harm in looking at the Gupta Leaks. But in paragraph 29, you indicated that the PP specifically told you that the Gupta Leaks were not part of the investigation. You indicated that Mr Nemasisi also told you to let it go and when you tried to raise the issue with the Public Protector, she shut it down. What do you think changed the attitude of the PP in this regard?

Mr Ndou: My own sense of this one, and I think we can refer to the email that was sent in the morning, when the people indicated that we can look at the Gupta emails, was that the lead investigator then said we needn't go to the Gupta Leak emails because the complainant was only interested in matters of maladministration and so on. It was my sense that perhaps this was not the right approach and so I then wrote to the Public Protector. As I say, I did not receive a response, according to my recollection. I did raise it, I remember, at the meeting, and I remember the Public Protector said we would not be looking at the images. I wouldn't know why she would say that.

Mr Skosana: Mr Gumbi Tyelela stated in his affidavit that you were one of the persons that sat on the panel to appoint senior managers and that there was also a representative from SSA. I think it was Mr Ntshavheni Prince Makhuthama. Was there anything unusual about having a representative from the SSA on the panel?

Mr Ndou: For me it was unusual, yes, given the role and responsibility, as I understand it as an ordinary citizen, having somebody from the State Security sitting in such a meeting.

Ms G Tseke (ANC): Most of my questions have been covered. Mr Ndou, how important was the outreach programme, given the fact that at some point you headed the division dealing with outreach programmes?

Mr Ndou: Outreach in the Public Protector’s Office is very important because it is really a practical application of the injunction in the Constitution, which says the Public Protector must be accessible to all communities and people. I think it is section 182(4), if I am not mistaken. So outreach was really our way then of giving effect to this section in the Constitution.

Ms Tseke: Do you believe it was unreasonable under the circumstances for the former CEO, Mr Vussy Mahlangu, to pursue charges against you 15 months after you were cleared of wrongdoing by a top law firm? And after you had resigned?

Mr Ndou: Yes, I think it was very unfair.

Ms Tseke: Do you believe the overall conduct of the PP in any way impacted on the Office of the PP considering the exodus of many experienced people who had institutional memory because of her managerial style as evidenced by Ms Baloyi yesterday and the manner in she concluded investigations?

Mr Ndou: I do not think I caught the direct question properly. Perhaps the Member could just repeat the question.

Ms Tseke: Okay, do you believe the overall conduct of the PP in any way weakened the Office of the Public Protector, considering the exodus of many experienced people who had institutional memory due to her managerial style, as testified by Ms Baloyi yesterday, and the manner in which she managed the investigations?

Mr Ndou: I think for me, this is a case by case issue. I would have to know the facts pertaining to each and every person who left the Office because of the conduct of the Public Protector and how she conducted investigations. I would really be speculating if I said I agree. I would really be entering the realm of speculation, unfortunately.

Ms M Tlhape (ANC): According to the way you testified, you did not see the Gupta emails. Did you not see what was being said by the media at that time about those emails.

Mr Ndou: I am getting snippets and I did not get the gist of the question.

Ms Tlhape: You testified that you did not do not see the Gupta emails? Did you by any chance, see what was being said by the media at that time about those emails?

Mr Ndou: I have the question now. I did see some of the information that was contained in the media about some of the emails and I even looked at the amaBhungane website just to see what the emails might contain as it related to the Vrede investigation. Yes.

Ms Tlhape: Would you say they were relevant?

Mr Ndou: Those that pertained to how the funds were utilised, for me, they would have been relevant, yes.

Ms Tlhape: Now, you also said that financial constraints were a factor. What about the Vrede investigation? Are you saying it couldn't have proceeded because of financial constraints?

Mr Ndou: In the morning when I was responding to the same question, I said for me the Public Protector’s Office is always under financial constraints. I mean every time we came to present to Parliament, we would be asking for more investigators, for more funds, and so on. And I did indicate in my evidence that I did not specifically see anything that would make the Vrede investigation subject to tight financial constraints that would apply to any other report.

Ms Tlhape: You also denying the allegations made by Mr Samuel that you could have been purged, for lack of a better word. Why would you think that someone will make such an allegation that you do not know anything about?

Mr Ndou: Perhaps Mr Samuel thought because, just before I left, charges were preferred against me on 16 November after I had resigned, perhaps that is where it is coming from Chairperson.

Ms Tlhape: There is also indication, as my colleagues have said, of complaints and allegations of intimidation, harassment and everything. It looks like the Public Protector goes directly to employees. What can you say, as an executive, about the role of line managers or direct supervisors in regard to disciplinary measures?

Mr Ndou: I shall answer the question as far as I understand it. The role of line managers obviously is to manage performance and if there is a lack of performance or any other thing that is untoward in terms of the policies of the organization, then the line managers are responsible for taking action. If that is your question, Hon Member.

Ms Tlhape: I just wanted to understand because as I was saying, the Public Protector goes directly to staff and so I wanted to know where were the line managers or directors? As an executive manager, would you say the setting of deadlines that you spoke about was a bad thing, and how did it affect the working relationship? The setting of deadlines by the Public Protector?

Mr Ndou: Sometimes investigations can have a life of their own. You can, for example, think you can finalise an investigation within three months but as you embark upon the investigation, it takes on a life of its own and so on. Sometimes some of these deadlines would actually have an impact on employees in terms of when something had to be delivered. That would be my response on that one.

Chairperson: Mr Ndou, just three small areas of clarity that you can assist with. Mr Samuel reported to you. Right?

Mr Ndou: Yes, he did.

Chairperson: Were you informed that he was facing criminal charges?

Mr Ndou: Yes, I was. If you can indulge me, I can just indicate something else. Initially, when this whole matter started, I became aware because he made a submission for the office to pay for his travelling. That would have been around the time that this incident took place. And even when the assault case was reinstated, if he wanted to take leave, he would indicate to me.

Chairperson: And you were also aware of the final outcome?

Mr Ndou: Yes, he did indicate to me that he had been found guilty and that he would appeal the matter.

Chairperson: Was it a practice or policy that the Public Protector’s Office did not investigate matters that were being dealt with by other bodies?

Mr Ndou: You mean, administrative investigations, the kinds of investigations that the Public Protector undertakes? Yes. There has always been an understanding that resources come from the state from the same fiscus and if a matter is being investigated elsewhere, there is no need to duplicate investigations at the expense of the fiscus. It is not a policy as such, but it is practice.

Chairperson: The last quick clarity I want you to assist me with. Your approved leave which was signed by the CEO.

Mr Ndou: The acting CEO.

Chairperson: Did you have a sense that there was no communication between the acting CEO and the Public Protector? Did she not report that you were on leave?

Mr Ndou: I did not have an indication of that.

Chairperson: So how does it work in the Office? You report to the CEO so you apply for leave and it is approved - does it end with the CEO as accounting officer, meaning that an executive authority would not know which people in his or her office are on leave? How does it work?

Mr Ndou: During various times I have acted as CEO in that institution and so I am speaking to something that I can speak to personally.

Chairperson: Did you not have weekly meetings or whatever where you would report these matters relating to staff to your boss who would be the PP?

Mr Ndou: I do not think that the issue of which executive manager would be on leave would be one of those matters that would have been reported on.

Chairperson: So the PP does not know who has gone AWOL, who is on leave, either sick leave or study leave, or are you saying that doesn't matter?

Mr Ndou: That is not what I am saying.

Chairperson: I am asking why would such not feature when you are interacting as acting CEO or CEO, when you are interacting with the executive authority.

Mr Ndou: I honestly do not recall an instance where one of the reports to the Public Protector would be to say, this executive manager is on leave this one is on and so on.

Chairperson: Put it this way. If you met on a weekly basis in that position of CEO, or acting CEO, with the Public Protector, what are the issues on the agenda? Or do you just meet and greet, and have tea? What are the issues for that meeting with the PP? I am looking for the importance of this interaction that this CEO, or acting CEO, has with the Public Protector, whether it is on a weekly basis, fortnightly or daily?

Mr Ndou: I cannot recall the frequency.

Chairperson: Never mind the frequency, just give me the content of what gets done in that meeting.

Mr Ndou: I do not recall a one-on-one meeting with a Public Protector, but there were Exco meetings.

Chairperson: How long did you act?

Mr Ndou: I think in my case, it was two months.

Chairperson: So for two months as an acting CEO, you never had a meeting with the PP. You just said you never record.

Mr Ndou: I am saying the only meetings would be the top management meetings with the CEO, the Public Protector and perhaps they include the DPP, but not one-on-one. I do not recall with much clarity.

Chairperson: So from how you explain this, am I right to say it is possible that the Public Protector did not know that you were on leave? Just based on what you are saying?

Mr Ndou: It is quite possible. Yes.

Chairperson: Okay. So you wouldn't be surprised when he or she recalled you because she was not aware that you were on leave. You just indicated that was never discussed in meetings.

Mr Ndou: But then in her SMS, she did specifically speak to my leave, so she must have spoken to the acting CEO.

Chairperson: Accidentally, I suppose

Mr Ndou: I wouldn't know.

Chairperson: Thank you. Adv Mpofu.

Adv Mpofu: Thank you, Chairperson, for the indulgence, can I just ask one issue that arises from your agenda?

Chairperson: I will give you a bonus question.

Adv Mpofu: Thank you very much. I appreciate that. There is an issue which was on my list, which I did not ask you about. When Mr Samuel reported to you that he had been found guilty, did he suggest that this was a secret between you and him? Or was it just reporting to you?

Mr Ndou: It was just giving me feedback after the court case.

Adv Mpofu: That is fine. I was asking that because he suggested or he gave the impression that he did not tell anybody and the Public Protector would have only known about that because of some links with the SSA, or something of that nature. So it never occurred to you as something that you must not tell anyone?

Mr Ndou: As far as I recall, it was just feedback because whenever he took leave, he would indicate to me that he was attending the case.

Adv Mpofu: Did you not see any need ­– or did you expect him to do it – to report it upstairs to anyone else in the hierarchy of the organisation? Because it was obviously an important event for someone to be found guilty of a criminal offence.

Mr Ndou: If I recall I had not decided then, until the outcome of the appeal, to report it any further.

Chairperson: I have a very quick question on Adv Cilliers because it has been suggested here that she was conflicted, or it comes across as such. Was Adv Cilliers given an opportunity to respond to allegations levelled against her?

Mr Ndou: My recollection is that I just indicated my conversation with the Public Protector to Adv Cilliers. It was not a formalised thing to say, this is what was said and you need to respond. That was the level at which it was left.

Chairperson: And lastly, as a general point, I always ask the witness to help the Committee with its report. I see that there seems to be a lot of informality in your institution. What would you say are one or two things that you think this Committee needs to be concerned about or take care of in the institution which make it difficult for any incumbent in that Office to do their work properly.

Mr Ndou: Just off the top of my head, I think perhaps for me the issue of audi letters. From my understanding of performance management, is you seek to assist the employee and disciplinary action follows the assistance to the employee. But the way the narrative and the conversation goes in the Office of the Public Protector with these letters, it is as if the employer has already come to the conclusion that you have done something wrong, and so on. Perhaps there needs to be a shift. I am not saying there should never be disciplinary action against employees, but not every instance should be an audi letter. You might want your managers to sit down with your employee and find out what the issues are –- why the performance is lacking and so on. I think in the morning, Adv Mpofu spoke of an audi letter being the equivalent of section 7(9). Now, look at the section 7(9)…

Chairperson: I am interested in why you are suggesting a shift because I understand from your testimony that you affirm the audi letters are legally sound and it depends on how people look at them. So I am not sure what you are suggesting as opposed to the version you have placed here.

Mr Ndou: I am just saying that perhaps the narrative should not be that an audi letter is the default position, which might create perceptions amongst employees to say, if I put my left foot wrong, this is what is going to happen. Perhaps just change the narrative internally and so on, so that employees begin to see when one gets an audi letter, it is not a way of punishment, but it is to assist me to better my performance and so on. That is the kind of in the narrative that I am speaking of.

Chairperson: Adv Bawa, in terms of 6.16 and 6.17, do you have any questions?

Clarification by Evidence Leader

Adv Bawa: I have a couple of questions. Just picking up on that last point, I understood you to agree that an audi letter was akin to a section 7(9) notice because you are giving both parties a hearing, but as I now understand, what you are saying is that in Section 7(9), you are giving notice to what is already regarded as an implicated party. But with your employee, you must attend to performance, rather than implicate them in a disciplinary process. Is that a proper understanding?

Mr Ndou: That is the narrative that I am trying to push as that might improve things, at least internally.

Adv Bawa: You also agreed that there was pressure from the DA which was one of the reasons there was a push to get the Vrede Dairy report done in February. There were two kinds of inputs from the DA as far as I could understand. There was a letter dated 31 October 2017 - I do not know if it was put to you. I am going to ask that it be put it on the screen for you see if you know about it. That letter was sent five months before February, with a request for the report to be released. Secondly, there was a meeting with Mr Maimane who brought some beneficiaries at some point in November 2017. Are you aware of any other pressure that necessitated the report to come out in that first week of February?

Mr Ndou: You mean, besides the meeting with then Premier Magashule?

Adv Bawa: Well, this is a letter from the DA. A proposition was put that there was pressure from the DA for the report to come out. Do you agree there was pressure from the DA?

Mr Ndou: Right. Yes.

Adv Bawa: Do you agree that there was pressure from the DA? Let me rephrase that. Did I understand your evidence to be that you agreed that there was pressure from the DA?

Mr Ndou: I would say to an extent, yes. Because I recall there was one time then Mr Maimane came to the Office and, if I am not mistaken, he had the media with him and it was a bit of a spectacle in the reception area. So for me, from that point, it obviously said to me, there was a bit of pressure to release the report. The letter, obviously, I was not privy to. But for me, the meeting subsequent to what you referred to, in November I think, would have lessened the pressure. Because if I come to you to say release this report, but then say I have more information for you, I am actually saying to you that I am giving you more time to look at this information and then factor it into the report.

Adv Bawa: That is the meeting that takes place around November when Mr Maimane comes to the Office?

Mr Ndou: I cannot remember the month, but he did come to the Office.

Adv Bawa: Was that the meeting where he came with a number of the beneficiaries? So there was only one meeting?

Mr Ndou: I cannot recall whether the day that I saw him with the media downstairs would have been the same day - it might actually be two different occasions. But I speak under correction.

Adv Bawa: And you are not aware of any other events besides those?

Mr Ndou: Not that I am aware of.

Adv Bawa: Then you were referred to an email which was sent on 13 July 2017 by the PP. This was an email which the Public Protector sent to the PPSA CEO, Mr Samuel, Adv Cilliers, Ms Molelekoa and Ms Mogaladi. The instruction to the CEO would have been in 2017. Who was the CEO in July 2017?

Mr Ndou: It might have been Mr Themba Dlamini.

Adv Bawa: The email contains an instruction to the CEO to follow up with the Free State Provincial Representative "to prepare letters to the Premier, MEC and Minister Zwane for my signature regarding the below allegations". Have you ever seen such a letter?

Mr Ndou: I do not recall seeing those letters.

Adv Bawa: This is in addition to the section 7(9) letters issued. You have never seen them?

Mr Ndou: No, I do not recall seeing them.

Adv Bawa: This is in July. The reason I am raising it is because the following month is August and in August is the Think Tank meeting. But read a bit further. I will give you the hard documents submitted by Outa. Have you ever seen the documents submitted by Outa?

Mr Ndou: I do not recall seeing them.

Adv Bawa: Because there are no such documents included in the Rule 53 record? Did you not see any of those documents submitted?

Mr Ndou: I do not recall seeing them.

Adv Bawa: Then there are certain allegations – Estina, KPMG, the wedding expenses, the Free State Government, etc. etc, etc. The Guptas denied involvement – we now know they lied. This was not raised at the Think Tank meeting the following month at all?

Mr Ndou: I do not recall them being raised.

Adv Bawa: So if this was not carried out by an investigator, what then happens? What if letters were not prepared? Would there have been a request for such letters to be prepared?

Mr Ndou: If the PP gives an instruction, it must be done.

Adv Bawa: What happens when you do not carry out that instruction?

Mr Ndou: Action would have to be taken.

Closing remarks

Chairperson: We still have time, but we have reached the end of our session with you. Do you have anything to say to the Committee, any final remarks from you?

Mr Ndou: I have said everything that I wanted to say. Thank you for the opportunity, Chairperson. I came here after being requested to come and give evidence to the best of my recollection. Given the time that has elapsed and the fact that I last looked at the investigation file a few years ago, as I indicated in my affidavit, my memory may be hazy here and there and so on. There is just the one aspect that I want to leave with this Committee and it is to wish you the best deliberations going forward in this matter. That is all I need to say right now.

Chairperson: On behalf of this Section 914 Inquiry Committee, I want to thank you for availing yourself. Thank you, colleagues and everybody else. The meeting is adjourned.

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