PP Inquiry day 24: Ponatshego Mogaladi

Committee on Section 194 Enquiry

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

Video (Part 1)

Video (Part 2)

Video (Part 3)

Motion initiating the Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from the Independent Panel furnished to the NA

Rules of the NA governing removal

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

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

The witness, Ms Ponatshego Mogaladi, has been employed at Public Protector South Africa (PPSA) since December 2000 and was an Executive Manager: Administrative Justice And Service Delivery and was acting as Executive Manager: Good Governance and Integrity, when she was suspended from 22 October 2019 until November 2021 by the Public Protector who wanted to dismiss her for gross negligence and misconduct. This dismissal was interdicted by Ms Mogaladi who in her evidence-in-chief stated that the dismissal did not follow the disciplinary code. She believed the manner in which she was disciplined at the PPSA amounted to victimisation. She noted that the former CEO, Mr Vussy Mahlangu, and the Public Protector, Adv Busisiwe Mkhwebane, failed to objectively and fairly looked into the matters that led to the disciplinary charges against her, Ms Lesedi Sekele and Mr Abongile Madiba. She said it seemed the former CEO and the Public Protector rushed to take disciplinary steps against them. Ms Mogaladi noted that certain reports were rushed to finalise them and therefore did not go through same quality assurance structures and process. Ms Mogaladi also described the unhealthy working environment in the PPSA and detailed the case backlog. The combination of immense pressure to produce reports, not being heard and threats to one’s livelihood made for a very difficult environment to work productively in pursuit of the targets that they were committed to meeting.

During the cross-examination by the Public Protector legal team, Adv Dali Mpofu said that the Committee should not turn into the complaints office of the PPSA or a branch of the CCMA or Labour Court. Adv Mpofu asked to what extent should those people who reported to the Public Protector also be held accountable and responsible for their own actions and misdemeanours. Ms Mogaladi responded that she would not shy away from being held accountable for her conduct, but that the principle of fairness needed to prevail.

Meeting report

Chairperson: Good morning members. Welcome everybody. Today our Section 194 Enquiry continues. I want to welcome the members here at M46 and members on the virtual platform. I want to welcome the Public Protector. I am aware that the team is on its way. I welcome Adv Bawa and Adv Mayosi, members of the media with us, the entire support staff as well as members of the public who are already on their various platforms to join us. Today we have a new witness and I’m going to recognise both Adv Bawa and Ms Fatima Ebrahim. Adv Bawa.

Adv Nazreen Bawa: Good morning, Chair. Adv Mayosi is going to be dealing with today's witness.

Chairperson: Thank you, Adv Bawa. I recognise Ms Fatima Ebrahim to do the preliminaries and introduce the witness.

Ms Fatima Ebrahim: Thank you, Chair. Ms Mogaladi, can you hear me?

Ms Ponatshego Mogaladi: Yes, I can hear you.

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

Ms Mogaladi: I prefer an oath.

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

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

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

Chairperson: Thank you, Ms Ebrahim. Welcome Adv Mpofu. I indicated that you will be joining us a bit later.

Adv Mpofu: Thanks, Chair. There was a bit of a problem; the police were not at the entrances. Apologies.

Chairperson: Thank you. That’s okay. I now recognise Adv Mayosi.

Witness: Ponatshego Mogaladi

Evidence Leader Adv Ncumisa Mayosi: Thank you, Chair. Ms Mogaladi?

Ms Mogaladi: Adv Mayosi?

Adv Mayosi: Yes. You've made an affidavit for this enquiry with the assistance of the evidence leaders, correct?

Ms Mogaladi: Correct.

Adv Mayosi: And you stand by the contents of your affidavit, is that right?

Ms Mogaladi: Correct.

Adv Mayosi: So the evidence leaders drew your attention to charge four of the motion that this Committee is busy with, right?

Ms Mogaladi: Correct.

Adv Mayosi: Now charge four is a charge of misconduct and incompetence. And one of the allegations made in charge four is that Adv Mkhwebane, the PP as we shall refer to her when we proceed, is guilty of misconduct in that she intimidated, harassed and/or victimised staff. Alternatively, she failed to protect staff in the Office of the PP from intimidation, harassment and/or victimisation by the former CEO, Mr Vussy Mahlangu in particular, in relation to the staff mentioned in that charge, do you see that?

Ms Mogaladi: Yes, I can see that.

Adv Mayosi: And there in paragraph 10.4 of the charge, your name is mentioned as one of the staff members who were affected by this alleged conduct, correct?

Ms Mogaladi: Correct.

Adv Mayosi: In paragraph 10.3, Ms Lesedi Sekele is mentioned as one of those staff members, is that right?

Ms Mogaladi: Correct.

Adv Mayosi: Now you say in your affidavit that you made for this enquiry with the assistance of the evidence leaders, that some aspects of your affidavit relate to Ms Sekele. You say that she has made a confirmatory affidavit in that regard, correct?

Ms Mogaladi: Correct.

Adv Mayosi: And she has indeed done so, made a confirmatory affidavit in relation to those aspects. Is that right?

Ms Mogaladi: Correct.

Adv Mayosi: Now in paragraph five of your affidavit, you deal with shall we say five things. Which you say, you are going to deal with more fully in your affidavit. You say there as a precursor to those five issues that "I", that is you, "have personally been threatened with disciplinary action by the PP for not meeting the deadlines for submitting reports when I was going through traumatic circumstances due to various things." Right?

Ms Mogaladi: Correct.

Adv Mayosi: And what you say there, in the first instance, is that you were threatened with disciplinary action by the PP for not meeting deadlines for submitting reports when you were going through traumatic circumstances, one, right? And secondly, you say, or when you had explained that objectively based on workload and other factors related to that, the deadline just could not be met, right?

Ms Mogaladi: Correct.

Adv Mayosi: Thirdly, you say Mr Vussy Mahlangu, acting at the behest of the PP, also issued you with an audi letter. The PP has previously instructed the then Acting Chief Operations Officer Ms Nthoriseng Motsitsi to take disciplinary steps against you, when you did not meet a deadline in November 2018. Then after the PP was not prepared to entertain your explanations as to why the deadline could not be met, right?

Ms Mogaladi: Correct.

Adv Mayosi: And you say in addition, the PP instructed Mr Mahlangu to take disciplinary steps against the COO, the ACO herself, Mr Abongile Madiba, and Ms Sekele, correct?

Ms Mogaladi: Correct.

Adv Mayosi: Mr Abongile Madiba, you say, passed away in July 2021, right?

Ms Mogaladi: Correct.

Adv Mayosi: But in addition to that, in addition to the things you mentioned in paragraph five, you also say in paragraph six that Ms Sekele, Mr Madiba and yourself had disciplinary proceedings preferred against you by the employer. That's the PPSA. The circumstances about which you will say more in this affidavit later on, right?

Ms Mogaladi: Correct.

Adv Mayosi: Now the three of you were found guilty, and we'll go into this in the affidavit later on. The three of you were found guilty in those disciplinary proceedings, and you were sanctioned. I don't want to go into that now because we will go into that later. But for present purposes, please answer the following question for the Committee. Given that you were sanctioned, and you were served with your sanction. You were disciplined by an independent chairperson. You were served your sanction. Do you believe that the fact that you were disciplined was part of victimisation/harassment/intimidation in the organisation?

Ms Mogaladi: Thank you, Chair. I do believe that the manner in which we were charged amounted to victimisation in the organisation. The reason being it is my view that had the former CEO, being Mr Vussy Mahlangu, and the Public Protector objectively and fairly looked into the matters that led to the disciplinary charges against us. Had they conducted a full investigation into the circumstances, more in particular the fact that myself, Ms Sekele and Mr Madiba were not involved in those investigations from the beginning. So had they conducted that investigation they would have had arrived at a different conclusion. I also believe that had the entire circumstances been taken into consideration, it would have been an opportunity for the organisation to try and address some of the challenges that lead to the outcome of the report. As part of the investigation, if we were held to have violated some processes or had not complied with some of the investigation processes, then we would have been held accountable and we would not have felt that we were victimised had the matter been looked at holistically. Particularly for myself, I will elaborate in detail that at the time, I had just taken over the branch in question. So had all those circumstances been taken into consideration a different conclusion and outcome might have been arrived at by the organisation. I feel that the fact that the former CEO and the Public Protector rushed to take disciplinary steps against us and suspend us amounted to victimisation. I also elaborate in detail that throughout my stay in the Public Protector, and according to my knowledge, so far we have been the only three people who have been disciplined for reports that have been taken on review. I feel that on its own amounts to victimisation. Thank you.

Chairperson: Just before we proceed, we need a bit of volume from you. You might need to just reposition yourself closer to the mic so that we can hear you much louder. So that everybody else can hear.

Ms Mogaladi: Is it better, Chair?

Chairperson: It's getting better, yes. If you can keep at least at that level. Thank you very much, Adv Mayosi.

Adv Mayosi: Thanks, Chair. You believe that the fact you were subjected to disciplinary proceedings in the circumstances in which you were subjected amounted to victimisation as you've just explained, correct?

Ms Mogaladi: Correct.

Adv Mayosi: Going to the background that you provide in your affidavit. You joined the PPSA in December 2000, right?

Ms Mogaladi: Correct.

Adv Mayosi: And you were appointed as the Chief Investigator in 2004. Then you occupied various positions and roles from that time, right?

Ms Mogaladi: Correct.

Adv Mayosi: And then in September 2012, that's when you were appointed as an executive manager to the early resolution division, right?

Ms Mogaladi: Correct.

Adv Mayosi: And then in April 2012, when that early resolution division position was merged with the executive manager service delivery position to form the Administrative Justice And Service Delivery division, that's when you became the executive manager for that division, right?

Ms Mogaladi: Correct.

Adv Mayosi: Can you briefly explain for the Committee what the AJSD division functions were?

Ms Mogaladi: Administrative Justice And Service Delivery branch’s main role in the Office of the Public Protector is to conduct investigations into allegations of administrative and service failure. Embedded in that is simple and complex investigations. The majority of the cases that have been received by the Public Protector, it is what is at times have been referred to bread and butter issues that affect an ordinary member of the public. At head office, those are the majority of the cases that have been received by the Public Protector. And part of the responsibilities of the Administrative Justice And Service Delivery branch is to identify systemic challenges based on some of the complaints that we received, and to conduct systemic investigations. And also in some instances, we might identify areas where we need to conduct an in-depth investigation to determine the root cause or causes of the number of complaints that we might be receiving at any given time. Also part of the key responsibility of this branch, the Public Protector has a responsibility in terms of the Public Protector Act to resolve complaints by alternative dispute resolution being mediation, conciliation and negotiation. It is part of that responsibility of this branch based on the nature of the complaints that have been investigated by the AJSD branch. So with the branch that I was managing, it was responsible for dealing with those complaints received and investigated at the head office of the Public Protector.

Adv Mayosi: So in paragraph 12 of your affidavit, you set out the structure of the AJSD branch, right?

Ms Mogaladi: Correct.

Adv Mayosi: And from that structure at that time, you had two chief investigators reporting to you, right?

Ms Mogaladi: Correct.

Adv Mayosi: And then based on that structure you were presiding over more or less 21 people in your division, correct?

Ms Mogaladi: Correct.

Adv Mayosi: In your affidavit in paragraph 13, you say that in about the middle of October 2018 you were approached by then Chief Executive Officer, Mr Vussy Mahlangu, to help and manage another branch, which was the Good Governance and Integrity branch at the time, right?

Ms Mogaladi: Correct.

Adv Mayosi: You say in paragraph 14 you were a bit apprehensive with this request to act as the executive manager for GGI, which is the Good Governance and Integrity branch. Can you tell the Committee more fully why you were apprehensive?

Ms Mogaladi: I was a bit apprehensive because, as I elaborate, I was requested to manage that branch over and above my substantive position being Administrative Justice And Service Delivery. And the nature of the matters that are being dealt by the Administrative Justice And Service Delivery require attention. Most of them are urgent based on the nature of the complaints, as I said, they are mainly bread and butter issues. Also importantly, due to the high volume of cases that are being processed by the branch, I was under a lot of pressure to finalise some of the current cases that I had. That included some of the backlog cases that could not, that were not finalised within the turnaround times of finalising AJSD cases, being 12 months. And also at the time, we had embarked on the process of systemic investigation based on the high number of complaints that we had received against several government departments. So in terms of our plan, we wanted to conclude those systemic investigations by the end of the financial year. And so I was busy at the time, based on my substantive responsibilities in AJSD. Furthermore, GGI deals mainly with complex cases in the Office of the Public Protector, that are related to governance and conduct failures, procurement irregularities, as well as allegations of violations of the executive code by members of the executive. And at the time based on the presentations that were made on the backlog, I was aware that GGI had a lot of backlog cases. Also at the time, the GGI did not have a full-time executive manager who was managing the branch, so I was a bit apprehensive based on mainly those two reasons. The volume that I was carrying, as well as the complex cases that I would be inheriting. And I was also concerned about the number of backlog cases that they had.

Adv Mayosi: So when you were asked to go and act as Executive Manager: GGI, who was the executive manager for GGI at the time?

Ms Mogaladi: Okay. Initially, the executive manager at the time was Adv Stoffel Fourie, but there was a stage where he was no longer at GGI because he was requested to assist with Legal Services. And then later from April, he was appointed as the executive manager responsible for the Provincial Investigations and Integration branch. And from there Ms Motsitsi, who is the executive manager responsible for Customer and Stakeholder Management was acting in GGI as well as being the Acting CEO. So from April to the end of October, it was Ms Motsitsi who was overseeing GGI as a branch. I was told at the time that she had indicated that she wanted to go back to her position being Executive Manager: CSM.

Adv Mayosi: So at the time, Ms Motsitsi was the acting executive manager for GGI, right?

Ms Mogaladi: Correct.

Adv Mayosi: But she was also the acting COO, Chief Operations Officer, right?

Ms Mogaladi: Correct.

Adv Mayosi: And she also was occupying her substantive position as the executive manager for CSM, right?

Ms Mogaladi: No, there was somebody who was acting in the position at the time as Executive Manager: CSM because she was acting on full time basis in the position of COO.

Adv Mayosi: Right, so she had two acting positions at the time. It was Acting COO and acting executive manager for GGI?

Ms Mogaladi: Correct.

Adv Mayosi: And that's when you were requested to become the acting executive manager for GGI?

Ms Mogaladi: Correct.

Adv Mayosi: All right, so you say when you were requested by Mr Mahlangu to act as EM: GGI, as you shall call it, you were a bit apprehensive? Why were you apprehensive? You were apprehensive, I suppose, you've explained it already. But just for context – you've already described what the AJSD division did for a fuller context on your apprehensions. But the GGI division you said was dealing with more complex and technical cases, correct?

Ms Mogaladi: Correct.

Adv Mayosi: But then you received a letter of appointment from the PP appointing you to your acting position as EM: GGI, right?

Ms Mogaladi: Correct.

Adv Mayosi: Can you go to PM1, which is page 3917. Is that the letter that you got from the PP?

Ms Mogaladi: Correct.

Adv Mayosi: So in this letter the PP says, it gives me pleasure to advise you that I have approved your appointment as acting EM: GGI with effect from 1 November 2018 until further notice. She says, as executive manager GGI you will oversee the GGI branch and the three chief investigators in GGI will report directly to you. You were going to have three chief investigators in GGI reporting to, you?

Ms Mogaladi: Correct.

Adv Mayosi: So in your portfolio as the Executive Manager: AJSD, which was your substantive position, how many chief investigators did you have reporting to you?

Ms Mogaladi: I had two.

Adv Mayosi: So this meant that you would now have five chief investigators reporting to you, right?

Ms Mogaladi: Correct.

Adv Mayosi: The PP then tells you that you’re "kindly requested to accept these responsibilities without an acting allowance as the institution is currently facing serious budgetary constraints and can no longer afford paying acting allowances. Although you will not be paid an acting allowance, I believe that you will still benefit from performing these responsibilities from a development perspective, all other terms and conditions of your employment will remain the same. I wish you success with all additional responsibilities given to you and I hope you will continue to contribute effectively to the achievement of the PPSA strategic objectives." You see that?

Ms Mogaladi: Correct.

Adv Mayosi: But you say in your affidavit in paragraph 17 that you accepted this appointment with conditions, right?

Ms Mogaladi: Correct.

Adv Mayosi: And in those conditions, you noted, you made handwritten notes in the letter written to you by the PP, that the appointment is accepted on the understanding that the leadership will support me to deal with the backlog of cases at GGI, right?

Ms Mogaladi: Correct.

Adv Mayosi: And by leadership, you meant who?

Ms Mogaladi: I meant the Public Protector, the Deputy Public Protector at the time, it was Adv Malunga and the CEO, at the time it was Mr Mahlangu.

Adv Mayosi: And you said in that note, 'I'll be managing two positions that are demanding and accepting the additional responsibility will not be seen as compromising my position. But instead, I will be supported to ensure the success of the two branches', right?

Ms Mogaladi: Correct.

Adv Mayosi: Did you discuss with the PP the specific forms of support that were necessary to make the two branches successful in this new arrangement?

Ms Mogaladi: I did not discuss with the Public Protector personally. But I had discussions with Mr Mahlangu because he first approached me. As I stated, I was a bit apprehensive, so we had some discussions around this matter. When I discussed with him, I raised some of my concerns and also what sort of support I would have expected with regard to the Public Protector. Public Protector is ultimately accountable for all investigations, and we had regular meetings with her, in dealing with all the AJSD and GGIs, so I assumed at the time that the PP was aware of the support that was required. Also at the time, because there was no executive manager except for Ms Motsitsi acting. PP frequently attended the GGI Dashboard meetings to try and assist them with some of their backlog cases. So I assumed that Public Protector was aware and would be aware of the support that would be required to make sure that the two branches are successful and in carrying out my responsibilities in the two branches. Thank you.

Adv Mayosi: Were you in actual fact supported by the leadership?

Ms Mogaladi: No, except for Adv Malunga. When I took over it was important for me to go through the exercise of inspection of all GGI cases just to know what I was inheriting and what I was taking over. So in the past Adv Malunga was responsible for assisting with backlog chases. And I had also previously worked with him in conducting inspections and assisting with cases that were older than two years. So he was supportive. We inspected those files together when I took over but due to pressures we couldn't, we had to stop because I had other deadlines that were pressing. But we inspected the majority of those cases. More in particular, the ones that were already older than two years, and we provided directives and guidance on the ones that we managed to inspect with him.

Adv Mayosi: So in paragraph 21 of your affidavit, you say that during the period of your suspension from October 2019 until November 2021, the two units, AJSD and GGI, were merged into a single unit. And that's the Investigations unit that you are currently the executive manager of, right?

Ms Mogaladi: Correct. But I must also point out, I was informed by HR when I followed up for an update. The merger of the two branches took place in January 2020. I was still on suspension at the time. I must also point out that part of the responsibilities of the cases that fell under AJSD were transferred to the unit that is being managed by Ms Motsitsi being Communication and Stakeholder Management. So a portion of the complaints that were handled by AJSD was transferred to CSM.

Adv Mayosi: Okay, Ms Mogaladi, we have sound problems. I think you need to either come closer or have some other solution because we can hear you, but you're coming through intermittently.

Ms Mogaladi: Okay, I moved closer to the computer. I said it is correct that the two units were merged as I followed up with HR. I was told that they were merged in February 2020. That was a period I was still on suspension. I also mentioned that it's important to indicate that part of the cases that were being handled by AJSD, the responsibility for investigation of those cases were transferred to complaints and stakeholder management unit.

Adv Mayosi: Okay, great. You then started as Acting Executive Manager: GGI on 1 November, right?

Ms Mogaladi: Correct.

Adv Mayosi: So in paragraph 23, you set out in terms, the numbers, the workload of the two branches when you took over. What do these numbers entail?

Ms Mogaladi: Okay, the first line is the total workload of the active cases that were being investigated by the respective units. It is cases that had already been assessed. It is cases that fell within the mandate of the jurisdiction of the Public Protector and were being investigated. So the first line indicates that AJSD had 749 active cases, GGI had 209. The second line is a further breakdown of the 749 AJSD cases: 108 cases were older than a year. GGI 52. And AJSD had 25 cases that were older than two years. GGI had 88. I think it's also important to mention that, whilst it might seem that GGI had a lesser workload, these are cases that are complex. These are cases that are technical and often you deal with a complaint that has multiple issues for investigation, and you also have to deal with voluminous evidence that takes a bit of time to deal with.

Adv Mayosi: Then in paragraph 26, you start to speak about the FSCA complaint. Can you elaborate for the Committee what that complaint was about?

Ms Mogaladi: Okay, thank you. On 7 April, the Public Protector received a complaint from the Commander in Chief of the Economic Freedom Fighters, Mr Malema, against the Executive Officer of the Financial Sector Conduct Authority. Chair, if I can correct. It's supposed to be the executive officer. It doesn't have chief executive. At the time it was Adv Dube Tshidi. The main allegations in that matter related to abuse of power by Mr Tshidi as the EO, in nomination of a queue of attorneys for curatorship of the various pension funds. He favoured a certain law firm that was owned by Mr Mostert. There were further allegations that there was a conflict of interest that Mr Dube Tshidi was not managing in that Mr Mostert as a curator was briefing his law firm and he had paid his law firm fees totalling R188 million. There were also allegations that Mr Tshidi in responding to a parliamentary question misrepresented. There were also allegations that he was attending clandestine meetings with some of… there was an attorney that was mentioned in the allegations. Furthermore, there were allegations that Mr Tshidi had intimidated and threatened some funds to brief Mr Mostert. Briefly, those are the allegations; I am taking them at high level and not going into the full details of the allegations.

Adv Mayosi: So when the complaint came to the PPSA, who was it allocated to?

Ms Mogaladi: The complaint was allocated to Mr Isaac Matlawe, who was a senior investigator based in the Private Office of the Public Protector at the time.

Adv Mayosi: Who was the executive manager responsible for dealing with that complaint at the time then?

Ms Mogaladi: At that time, the investigative staff in the Private Office of the Public Protector reported to Mr Futana Tebele.

Adv Mayosi: You say in paragraph 27 of your affidavit that obviously the investigation started from the Private Office, and there was an investigation plan that was managed by Mr Futana Tebele. And the final report, you say should have been submitted in November 2017, right?

Ms Mogaladi: Correct. We found an investigation plan on the file that indicated that according to the targets and milestones that we defined in the plan, the report should have been submitted to the Public Protector in November 2017.

Adv Mayosi: And it wasn't submitted in November 2017, correct?

Ms Mogaladi: No, it was not submitted.

Adv Mayosi: So was there any action taken against those who were responsible for not submitting it in November 2017?

Ms Mogaladi: Not to my knowledge.

Adv Mayosi: Okay, so you set out the issues that were identified in the investigation plan in paragraph 27, right?

Ms Mogaladi: Correct.

Adv Mayosi: Which were the two issues relating to Mr Tshidi and Mr Mostert, correct?

Ms Mogaladi: Correct.

Adv Mayosi: But then in paragraph 28, you start talking about what started to happen after you took over as is Acting Executive Manager: GGI in relation to this particular investigation. And what was your involvement really after you took over as the Acting Executive Manager: GGI in this FSCA investigation?

Ms Mogaladi: After I took over as the executive manager, I started receiving emails from the PP. Some were sent to me through the Acting CEO at the time, Ms Motsitsi, where the Public Protector was indicating that the section 7(9) notice was long overdue in this matter, and it must be submitted immediately. I think one of those emails that was forwarded to me was dated 5 November, which was the third working day since taking over the branch in question. So I followed up and made inquiries with the team and I also had discussions with Ms Motsitsi and she stated that the file was initially allocated to Mr Matlawe, but on 4 June 2018 the file was handed over to her being the EM: GGI and the Acting COO at the time and the late Abongile Madiba and Ms Carina van Eeden, as the GGI Senior Investigator at the time.

Adv Mayosi: Your inquiries revealed that at some point even though the investigation had been initially allocated to Mr Matlawe, in June it was removed from him and allocated to Ms Motsitsi’s division under Mr Abongile Madiba and Carina van Eeden, right?

Ms Mogaladi: Correct.

Adv Mayosi: Was there a handover report that you got in relation to the investigation?

Ms Mogaladi: No, I did not receive any handing over relating to this investigation and others that I received. I didn't get any handing over. I also discussed with the investigation team at the time and they said they also did not get any handover notes on the file when it was handed over to them on 4 June.

Adv Mayosi: You say in paragraph 31 that soon after you took over, Ms Carina van Eeden, who was the senior investigator in the matter, started to send you an email requesting that her reporting lines to Mr Madiba be severed, and that there had been difficulties there, right? That's what you say in paragraph 31?

Ms Mogaladi: Correct, but…

Adv Mayosi: Yes?

Ms Mogaladi: No, no, I want to also correct that it says specifically North West in that memo, I want to correct it. It was Mpumalanga and the Northern Cape where she wanted to be transferred to.

Adv Mayosi: Oh, so you’re making a correction. You’re saying in about the fifth line, Ms van Eeden had on several occasions formally requested transfer to provinces. And as it reads now it says specifically the North West. You want to correct, it was Mpumalanga or the Northern Cape. Is that right?

Ms Mogaladi: Yes, it's correct. And it was when I followed up and discussed it with the colleagues, I was informed that there was a formal request for transfer submitted prior to my period in GGI.

Adv Mayosi: Right. Then you say in paragraph 32, that soon after you took over GGI the issue of the section 7(9) letter in the FSCA investigation became an issue… came to your attention. What then happened?

Ms Mogaladi: I could gather from the emails that the PP had been requesting this notice from the colleagues. I think initially there was a deadline sent for July. It was not met. And when I went through the emails and the inquiries, I noted that there was a Dashboard meeting that was attended by the Public Protector and the team, and at the time the notice was not ready. But thereafter, Mr Madiba made an undertaking that he will assist in drafting the section 7(9) to ensure that they meet the deadline that was imposed by the PP.

Adv Mayosi: So by the time you got this communications that the section 7(9) was due or overdue, had you had sufficient time in GGI to familiarise yourself with the investigation?

Ms Mogaladi: No, in one of those emails, it was indicated that the section 7(9) notice was due on 2 November. Notably, this was a day after I took over the GGI branch.

Adv Mayosi: Right, you do say in paragraph 33, that you weren't given the opportunity and time to familiarise yourself with the extra work you were taking over as EM: GGI in addition to your responsibilities as EM: AJSD, right?

Ms Mogaladi: Correct.

Adv Mayosi: You say you found yourself in a situation where on your third working day already in GGI, you were receiving emails about the submission of the section 7(9) notice and that you were not familiar with the matter at all, right?

Ms Mogaladi: Correct.

Adv Mayosi: Did you express this challenge to the leadership whom you expected to support you?

Ms Mogaladi: I expressed my challenges and frustration to the CEO, Mr Mahlangu. I pointed out that I was given a copy of the handing over report that was compiled by Adv Fourie when he left for the Eastern Cape and for Provincial Investigations at the end of April. It was a high-level report that was not going into the details of each and every investigation. It just indicated the status of matters at high level. So that's what I was provided. Mr Mahlangu also indicated that he cannot really help much as most of the notices and the reports were long overdue even before I took over and PP wanted them.

Adv Mayosi: You already said in paragraph 32 of the affidavit, that the section 7(9) letter should have been submitted on 2 November 2018. Do you see that?

Ms Mogaladi: Yes.

Adv Mayosi: Was it submitted on that date?

Ms Mogaladi: No, it was not submitted.

Adv Mayosi: So what happened?

Ms Mogaladi: I was later informed that on 2 November, the late Mr Madiba submitted a memorandum to the Public Protector.

Adv Mayosi: And that's the one that you refer to in that paragraph as it's marked PM2, right?

Ms Mogaladi: Correct.

Adv Mayosi: Okay, can you give us a minute so we can go there. PM2 is page 3919. Is that the memorandum that you are referring to?

Ms Mogaladi: Yes, that's correct.

Adv Mayosi: Okay, scroll down. What was the purpose of this memorandum by Mr Madiba?

Ms Mogaladi: Mr Madiba states in paragraph 1.1 what the purpose of the memorandum was.

Chairperson: I didn't hear that. I didn’t hear that.

Ms Mogaladi: Mr Madiba provides in paragraph 1.1, the purpose of the memorandum is to provide a report on the reasons why the section 7(9) notices on the investigations against Mr Fikile Mbalula and the FSCA were not transmitted to the Public Protector for signature as expected per resolution of the meeting held with the Public Protector on Monday 22 October.

Adv Mayosi: Then in paragraph 2, Mr Madiba provides the background to the matter. In paragraph 2.2 he says that "I reworked the notices in preparation for submission on 25 October 2018 as required" And he says, "Tthe notices were ready for submission, albeit not in a satisfactory status as according to my standards and those that are expected from the Office in particular an official occupying a senior position of a chief investigator". And he says, "I'm still not satisfied with the notices, and I was going to submit them just because I was required to do so". He says he attached copies of the notices for the PP’s reference marked ‘A’ and ‘B’ respectively. You see that?

Ms Mogaladi: Yes, I can see that.

Adv Mayosi: In paragraph 2.3 he says the investigators who were responsible for the investigations are Ms Shantell Naidoo, in respect of the Fikile Mbalula investigation, and Carina van Eeden in respect of FSB. You see that?

Ms Mogaladi: I see that.

Adv Mayosi: Can you read what he says in paragraph 2.4, please?

Ms Mogaladi: Okay, Mr Madiba said, "With respect, the quality of the work done by these investigators left much to be desired. Hence, I had to take it upon myself to assist them in providing qualitative work that would not embarrass the Public Protector in the end. It would further be very irresponsible for me to submit substandard work to the Public Protector and expect her to append her signature to same".

Adv Mayosi: And he says in the first sentence of 2.5 the sensitivity and complexity of the two matters require one to fully apply his mind if he wants to produce quality work. And then in paragraph 2.7 Mr Madiba set out his challenges and what other investigations he was involved in. He said that, "Other than the above, there's been a number of other investigations that I've been actively involved, particularly in my capacity as the chief investigator to ensure that GGI maintains the standards of quality that we were taught by Adv Stoffel Fourie." He goes on then in the sub paragraphs there to list what those are, including him rendering assistance to the Zondo Commission, and so on and so on. In paragraph 2.8 he says that, "The above is just an example of the sensitive and complex matters that I'm involved in which require one to fully apply his mind and experience has shown me that you," he’s addressing the PP, "do not let work from investigators leave your desk without applying your mind fully as that would embarrass you". And then paragraph 3, he makes a motivation, can you read that please Ms Mogaladi?

Ms Mogaladi: He states that, "Due to the above reasons it will be appreciated if the Public Protector could consider affording me an extension until Friday 9 November 2018 to allow me to apply my mind fully on the two matters and submit these notices as I am submitting them despite the fact that I am not satisfied with them in their present state. Whilst I am applying my mind on the two, I request that I be allowed to only concentrate on them and nothing else so that my attention is not diverted to other investigations."

Adv Mayosi: And then of course he says in 3.2, "In the event that the Public Protector is not satisfied with how I handle the matters, she is at liberty to decide they be reallocated to other capable investigators in the Office. And in paragraph 4, he makes a recommendation, and his recommendation is that the PP consider granting him an extension until Friday 9 November 2018 to submit finalised section 7(9) for both matters and issue directives, concentrating on those two notices, he not be diverted to two other tasks. You see that?

Ms Mogaladi: Yes, I can see that.

Adv Mayosi: Go down. As far as you're aware, is that the signature of Mr Madiba?

Ms Mogaladi: Yes.

Adv Mayosi: Go down. And then he makes a recommendation really, for this. So that's the PP’s signature there, right? This memo was signed by the PP, correct?

Ms Mogaladi: Correct.

Adv Mayosi: And is that her handwritten note on the right-hand side next to a signature, as far as you're aware?

Ms Mogaladi: Correct.

Adv Mayosi: Can you read what the PP’s response is to this memo from Mr Madiba? Just the first paragraph.

Ms Mogaladi: The first paragraph states, "Madiba your explanation is not accepted and feel undermined by just indicating that, if not satisfied, must relocate. That means there must be consequences against you same as those I took the FSB matter from.

Adv Mayosi: Thanks. What does the acronym or the letters ACOO stand for?

Ms Mogaladi: Acting COO.

Adv Mayosi: And that was Ms Nthoriseng Motsitsi at the time, right?

Ms Mogaladi: Yes, on 2 November 2018. It was Ms Motsitsi.

Adv Mayosi: What instructions does the PP issue to the ACOO in her handwritten note?

Ms Mogaladi: Okay. On there the Public Protector says, "COO can I have the investigator's section 7(9) of Mbalula to sign. And then in brackets PP says, do not agree with the revised version by Madiba and she wanted it today. And then in brackets, there was an annexure C. I'm taking it that annexure C was what Madiba had annexed to his memo to the Public Protector. Can I continue to read?

Adv Mayosi: Yes.

Ms Mogaladi: Okay, the Public Protector in that handwritten note further said, "Madiba to be issued with a verbal warning and Ms Sekele for not meeting the target set to submit the two section 7(9)s. Can I have the reworked section 7(9) of FSB by end of business tomorrow?" And the handwritten notice is dated 7 November 2018.

Adv Mayosi: Now Ms Sekele wasn't mentioned at all by Mr Madiba in this memo, right?

Ms Mogaladi: Correct.

Adv Mayosi: And yet the PP says she must be given a written warning for not meeting the target to submit the two section 7(9)s, right?

Ms Mogaladi: The PP said she must be given a verbal warning.

Adv Mayosi: A verbal warning. Yes. So do you know what connection Ms Sekele had to these matters to warrant a verbal warning in this manner?

Ms Mogaladi: It is not clear from the memo, but I think her name was brought into this memo because at the time, Ms Shantell was reporting to Ms Sekele. But as the memorandum states, because she was previously working with Madiba she was reporting to Madiba on the Mbalula investigation. So it is not clear why the Public Protector brought her in on this because in the memorandum Madiba acknowledges that he is working on the notice with Shantell.

Adv Mayosi: Going back to your affidavit, paragraph 40. You say that Mr Madiba then finished drafting the section 7(9) notice on 21 November 2018, right?

Ms Mogaladi: Correct.

Adv Mayosi: And then what happened after that?

Ms Mogaladi: Mr Madiba emailed the draft notice to me on 21 November. But in the email he submitted he had certain reservations about the investigation, because he still felt that some of the issues might be, we might have investigated issues that were already dealt with in court matters. So because this notice was long overdue, and there had already been a decision that action should be taken against us for not submitting the notice. I forwarded that notice to the PP on 22 November, in the morning at 4:33. And in my email, I indicated to the Public Protector that Mr Madiba submitted the draft with reservations and was concerned that we might be challenged in court. I also indicated that I have just taken over in GGI and need to review the files and the court judgment before I can express an opinion. I request an opportunity to contact Legal Services on the implications because there were legal issues that were consistently being raised by the parties in the matter. I was aware that Legal Services had previously attended meetings with the Public Protector based on the report.

Adv Mayosi: You say you forwarded it to the PP by means of the email that you say is PM2A, right?

Ms Mogaladi: Correct.

Adv Mayosi: Let's go there to the email. Your PM2A starts at 3924. But for the purposes of the Committee, of course, when there's an email trail these things in order to understand the whole thing you have to start earlier in the email trail. And so that is what we are going to do. We'll go to the beginning of your email trail, which starts on 3927, right?

Ms Mogaladi: Correct.

Adv Mayosi: Right. This is where you say you sent it to the PP, right? Can you read what you said there?

Ms Mogaladi: I said, "Dear Public Protector, attached hereto is the draft FSB section later. Mr Madiba submitted the draft with reservations, he is of the view that we may be challenged for investigating issues decided in court. I have just taken over GGI and still need to review the files in the court judgment before I can express an opinion on this matter. I hereby request that we be given an opportunity to meet with Mr Nemasisi and address Mr Madiba’s concerns before the section 7(9) letter is signed. I have also attached copies of the two judgments that Mr Madiba is concerned about. Regards."

Adv Mayosi: And you copied Mr Nemasisi on this email, correct?

Ms Mogaladi: Correct.

Adv Mayosi: And the PP responded right? She responded on 3926, at the bottom, right?

Ms Mogaladi: The PP did not respond to me directly on that particular email.

Adv Mayosi: So what you're saying is she responded, but you were not included in the response, right?

Ms Mogaladi: Correct.

Adv Mayosi: She responded to, she wrote rather to Mr Nemasisi, correct?

Ms Mogaladi: Correct.

Adv Mayosi: And what you she said is in response to your concern: "Nemasisi can you check the concerns they have on the court judgment, no court judgment was investigated but it was referred to because it was a matter pending between the parties, in brackets, attorneys of the complainant and EFF we told you we cannot intervene on those, close brackets, you were part of the meeting. Adv Busisiwe Mkhwebane." Is that the response you're referring to?

Ms Mogaladi: Correct.

Adv Mayosi: All right. And then Mr Nemasisi, appears to have responded on 27 November. You were not copied on that response, right?

Ms Mogaladi: Correct.

Adv Mayosi: And he gave what appears to be a lengthy response which ends –do you want to read the last paragraph please?

Ms Mogaladi: "Considering the number of issues which needs to be investigated, the complexity of the issues and urgency of the matter, we propose that PP establish a special investigation team to focus on this investigation to ensure that all complaints and all the applicable law is properly ventilated. This is because the implicated parties, that is Mr Mostert, are known to be a litigant."

Adv Mayosi: Do you know if the PP took this advice? This is the last paragraph of that advice by the way. It was a lengthy advice. But do you know if the PP considered that advice that was sent to her on 27 November?

Ms Mogaladi: I am not aware that this advice was taken because I was not copied in the communication. I only learned this through interaction with Mr Nemasisi. As far as I know this was not implemented, this last part.

Adv Mayosi: Your evidence is the following. That Mr Madiba submitted the section 7(9) to you on the 22nd and you forwarded it to the PP on the 22nd, under reservation? You stated to her that Mr Madiba has reservations and so on, is that correct?

Ms Mogaladi: Correct.

Adv Mayosi: And you told the PP when you submitted it to her that you haven't had time to familiarise yourself with everything and you would like to consult with Legal regarding certain matters, right?

Ms Mogaladi: Correct.

Adv Mayosi: And then the PP, of course, asked Legal on the 24th around the issues that you had raised, correct?

Ms Mogaladi: Correct.

Adv Mayosi: But you do say in paragraph 45, that you were not copied into these emails between the PP and Mr Nemasisi. And so, you were not aware of those interactions, right?

Ms Mogaladi: Correct.

Adv Mayosi: And your evidence is in your affidavit, that the PP proceeded to sign the section 7(9) notice on 26 November, right?

Ms Mogaladi: Correct.

Adv Mayosi: But she got the advice from Mr Nemasisi only on 27 November and that is why you say in paragraph 45, that by that time his inputs were given, the notice was a ‘fait accompli’. Is that correct?

 Ms Mogaladi: Correct.

Adv Mayosi: All right and then what happened after that?

Ms Mogaladi: The section 7(9) notice that was signed, it was disseminated to the parties. And following that, there was exchange of correspondence between the parties, the FCSA and one of the implicated parties, Mr Mostert. There was the exchange of correspondence and then the main event that unfolded around this matter was on 29 January. The Public Protector was served with an application for an urgent interdict by one of the implicated parties, Mr Mostert, whereby he sought an order interdicting and restraining the Public Protector, the complainant and one of the parties, Mr Nash, from publishing, causing to be published or in any other manner disseminating or causing to be disseminated to any person or to the public, whether the media or on social media platforms or otherwise, the section 7(9) notice that was issued by the Public Protector on 26 November, pending the final determination of an action or application by the North Gauteng High Court. He had filed the application for an urgent interdict. So it was pending the determination and decision by the North Gauteng High Court. The notice was already circulated that it should not be disseminated any further by any of the parties, including the PP. And he indicated that the action was to be instituted within 30 court days from the date of the order. Further in the application, his main grounds was that the PP does not have the power to investigate the subject matter of the complaint. So he wanted the court to review and set aside the decision of the Public Protector to investigate the complaint. He also wanted the court to review and set aside the PP section 7(9) notice dated 26 November 2018, and that the PP be further interdicted and restrained from further investigating the complaint. And finally, PP to be interdicted from publishing the findings in respect of the complaint.

Adv Mayosi: In your affidavit from about paragraph 51 onwards, you speak of new developments, though, that occurred quite apart from this urgent application that had an impact on the issuing of the final report, right?

Ms Mogaladi: Correct.

Adv Mayosi: And these new developments as you detail them, also include the email trail that appears as annexure PM3 to your affidavit, right?

Ms Mogaladi: Correct.

Adv Mayosi: And I'll take you there. Now this email trail starts from 3929 but it ends at 3932. But as email trails go, you have to start at the bottom in order to get to the top to understand the chronology and so we'll start at 3932. Are you with me, Ms Mogaladi?

Ms Mogaladi: Yes, I'm with you.

Adv Mayosi: And so what is it that was happening there on 2 March 2019?

Ms Mogaladi: Okay, I think maybe just to put matters into proper perspective, I think I mentioned that there was an application for interdict. It was initially set down for 12 February and it was later postponed to 19 February. So what this entailed was that until such time that there was a court decision, there was very little that we could do in terms of further disseminating the section 7(9) or any intended findings on the investigation. But I think internally, we still had some of the discussions as a team regarding the way forward and as I've alluded to in my affidavit, one of the discussions related to the fact that the section 7(9) was not originally issued to the Board and we were discussing what we still needed to do as a team to close some of the gaps. But it must be borne in mind that those discussions were happening whilst there was pending litigation between the parties, and by agreement Mr Mostert was given, it was agreed that he can make his submissions to the Public Protector on their section 7(9) notice. The due date for submission was 1 March. So in between that Mr Abongile Madiba received an email from Ian Levitt Attorneys, who were the attorneys that were representing the complainants in this matter. They had attached a letter and the letter basically indicated their intention to submit additional documents.

Adv Mayosi: Is that the email that we are looking at now?

Ms Mogaladi: Yes, correct. That is the email on the screen.

Adv Mayosi: And that is the email from the complainants' attorneys of record, right?

Ms Mogaladi: Correct.

Adv Mayosi: And then Mr Madiba, is that his response notifying you all that he had received this communication?

Ms Mogaladi: Correct.

Adv Mayosi: All right. It's still on 3931. So this email was from you. It appears at the bottom of 3930. You recognise that email, right, Ms Mogaladi?

Ms Mogaladi: Correct.

Adv Mayosi: And in that email you were writing to ‘Dibas’. It's Mr Madiba, I assume, right?

Ms Mogaladi: Yes, ‘Dibas’ is Mr Madiba. That's how we called him in the office. We called him ‘Dibas’.

Adv Mayosi: And it was sent on 26 March. You're saying to him, you've discussed the finalisation of the FSB report with the PP, yesterday on 25 March. You alerted the PP to the letter from the attorneys of the complainants and the complainants was Mr Malema from the EFF. Wherein they requested us not to finalise the report before they submit additional evidence, and then you carry on. You say to Mr Madiba, the PP requests you to clarify the additional evidence that was requested from the attorneys. According to the PP all the evidence was submitted to Mr Matlawe. You see that?

Ms Mogaladi: Correct.

Adv Mayosi: Can you move up to 3930 for us to see the PP’s response. Do you see that, and you were copied on it, right?

Ms Mogaladi: Correct.

Adv Mayosi: And she says to Mr Madiba, what information you requested from attorneys which is not in the files and records which you were given. You see that?

Ms Mogaladi: Correct. Yes, I can see that.

Adv Mayosi: And Mr Madiba then responded, and he says there's no particular information. This lady attorney was just pestering to see the investigator regarding the matter. We met and discussed the same in general together with issues identified for investigation. She offered to assist same should a need arise, an offer which I welcomed. That was the end of it. Right? You see that?

Ms Mogaladi: Yes.

Adv Mayosi: 3929. Can you explain to the Committee what that email was about? It's from you and it's to the PP, on 26 March in the evening at 26 minutes past 10pm?

Ms Mogaladi: Okay. This email was a follow up to the earlier discussion that I had with the Public Protector.

Chairperson: We can't hear you.

Ms Mogaladi: Okay, this email was a follow up to the discussion that I had with the Public Protector regarding finalisation of this investigation. And in the email, I had indicated to the Public Protector that there were files that were received from the EFF attorneys on 25 March. So the PP indicated that we should check the contents of that. So here in the email, I was saying I have checked with Carina van Eeden who was the investigator. She indicated that the attorneys of the EFF delivered five lever arch files of evidence yesterday after hours. The difficulty for us is we do not have sufficient time to review the evidence that was delivered yesterday. I was asking the PP, can we focus on finalising the report based on the old evidence as we do not have sufficient time to review the evidence in the file submitted yesterday.

Adv Mayosi: So what you were proposing, because you had received five extra lever arch files after hours on the 25th. You were asking the PP, whether you could finalise the report based on the evidence you already had, right?

Ms Mogaladi: Yes, correct. Because the discussion from the PP and the directive that we had received through the CEO at the time was that there was a media briefing on the 28th. And this report was supposed to be released during the media briefing on the 28th. So it was two days; the 26th was two days before the media briefing. So we had to finalise the report.

Adv Mayosi: Okay, can you go up? The PP’s response was to say, at 26 minutes past 11 on the same evening, "I said to COO the report must be finalised. You need to peruse the documents submitted and compare with the evidence we had already. Why was I not answered as to what additional information Madiba wanted from the attorneys of EFF so I can advise. He did not give specific answer which I'm still awaiting." You see that?

Ms Mogaladi: Yes, I can see that.

Adv Mayosi: And any comment to that?

Ms Mogaladi: My comments to this is that look, the first paragraph what it meant is that we did not have an option. The report had to be finalised and be ready for the media briefing of the 28th. Secondly, on the second paragraph, the PP was saying that Madiba had not responded. But according to the email trail, Madiba responded to the PP and explained the information that was received in the earlier email was sent around 10 in the morning.

Adv Mayosi: Ms Mogaladi, I suspect the Chair is about to order a tea break. But Chair, this is an opportune time for her to end this leg of her story. So what happened after that? You got the instruction from the PP at 26 minutes past 11pm on 26 March, that the report has to go out. And as you say, the media briefing was on 28 March, what happened?

Ms Mogaladi: We had no choice. We had to start working. We worked through the day, the 27, being the investigator in particular, Ms van Eeden. Then I notified, she was already aware that report had to be drafted. She started drafting and finalised in the afternoon of the 27th. And then we worked until around early hours just to make sure that the report is complete and ready for the 28th. And it was submitted to the COO at the time. But due to the pressure of time, we had to work together as a team just to make sure that as we are progressing and working on one page, the next person starts reviewing that page because we did not have a lot of time to review it. But at the time, there were processes that were in place in the Office. The report did not go through some of those quality assurance structures and processes that we had in the Office because we only had a day to finalise the report.

Adv Mayosi: You mention Ms Sekele in paragraph 59 of your affidavit. But it was you, Ms Sekele and who were working on the report on that day?

Ms Mogaladi: Yes, the investigator was the main person who was working on the report. Ms Sekele was assisting as the chief investigator, myself as the EM. And later in the evening, we were joined by Ms Basani Baloyi, who was the COO at the time.

Adv Mayosi: You say you worked during the day on the 27th and into the early hours of the 28th?

Ms Mogaladi: Yes, correct.

Adv Mayosi: And when was the report handed over to the PP for her signature and the media briefing?

Ms Mogaladi: I think Ms Baloyi. From our side when we finished during the early hours we submitted it to Ms Baloyi.

Adv Mayosi: On the 28th?

Ms Mogaladi: Yes, in the early hours of the 28th. And she submitted to the PP on the morning of the 28th.

Adv Mayosi: And it was issued in that media briefing on the 28th, right?

Ms Mogaladi: Yes, it was issued on the same day.

Adv Mayosi: Okay.

Chairperson: Thank you, Ms Mogaladi and Adv Mayosi. We will take a break.


Adv Mayosi: You are back, Ms Mogaladi. Thank you. So we move to where we left off where you were describing for the Committee how the report was written and finalised following the PP’s instruction of 26 March, 26 minutes past 11. The report simply has to be done. In your affidavit on 3894 we'll deal briefly with Ms Sekele, the section that says, ‘Ms Sekele and the FSCA investigation’. She joined the PPSA in April 1999 as a senior investigator, right?

Ms Mogaladi: Correct.

Adv Mayosi: And in April 2018, she was transferred to the GGI branch as chief investigator, correct?

Ms Mogaladi: Correct.

Adv Mayosi: And you do say in paragraph 62, that after Ms Carina van Eeden indicated that she wanted to, she needed to sever her reporting lines from Mr Madiba. Mr Madiba was then replaced by Ms Sekele as the chief investigator to whom Ms van Eeden reported, right?

Ms Mogaladi: Correct.

Adv Mayosi: And Ms Sekele, in terms of paragraph 64 of your affidavit, she wasn't really involved in the FSCA investigation, and she became involved at an advanced stage of the investigation, only from about December 2018. And it was a complex matter, right?

Ms Mogaladi: Correct.

Adv Mayosi: Thanks. So we move on to the next section of your affidavit, which is ‘FSCA and Rabie litigation’. The notice of motion in the FSCA matter is in Bundle A, page 1988. I don't know what item it is. You've got it. Please tell the Committee briefly what this litigation was about. So the report is issued on 28 March in 2019. And then litigation ensues, can you tell the Committee what that was about?

Ms Mogaladi: Okay. Following the issuing of the report by the Public Protector, the FSCA filed the notice of motion in the North Gauteng High Court requesting the court to review and set aside the report of the Public Protector. It was report number 46 of 2018/19. Their prayer was that the report should be reviewed and set aside and declared constitutionally invalid for lack of jurisdiction. That was the first prayer. And the alternative to their prayer was that the conclusions and findings in paragraph 5.1.38, 5.1.39 and 5.2.22, 5.3.28, 5.3.29, 5.4.74, and 6.1 to 6.4 of the report, and the summary thereof in paragraphs (x)(a) to (d) of the report, are reviewed and set aside and declared invalid, unlawful and unconstitutional.

Adv Mayosi: Did the PP defend the review?

Ms Mogaladi: Okay. The process in the Office is that normally if there is litigation there will be a litigation strategy by Legal Services. A firm of attorneys was appointed and in turn, they briefed Adv Dennis Smith and the junior counsel was Adv Shabalala. The PP defended the matter however there was part of the report where the PP decided that particularly prayer two, the PP considered and agreed that the report can be reviewed and set aside on the basis of the alternative. But on the first part, the PP defended the issue relating to the lack of jurisdiction.

Adv Mayosi: One of the issues that arose in the litigation was an incomplete Rule 53 record, right?

Ms Mogaladi: Correct.

Adv Mayosi: What role did you play in compiling the Rule 53 record?

Ms Mogaladi: Initially, Legal Services requested the investigator who was dealing with this matter to compile the record. And the record as compiled by the investigator was filed. During consultation as we were preparing to defend the matter, it was brought to my attention. It was around August when the first part of the Rule 53 record was filed. It was brought to my attention that the record was missing information around the beginning of August during our first consultation. So that's when I became involved, as we were requested to find some of the information that was not part of the Rule 53 record. I became involved after the first part was filed and the applicant had filed a supplementary affidavit indicating that the record was incomplete.

Adv Mayosi: Let's go down to paragraph 71. You say in your affidavit judgment was handed down on 9 October 2020. The report was reviewed and set aside and declared constitutionally invalid for lack of jurisdiction, correct?

Ms Mogaladi: Correct.

Adv Mayosi: And the PP was ordered to pay the costs of the application, right?

Ms Mogaladi: Correct.

Adv Mayosi: Moving on to the next section of your affidavit, which is the disciplinary proceedings against you and Ms Sekele. Mr Mahlangu then in October 2019 initiated disciplinary proceedings or steps against you, Ms Sekele and Mr Madiba, right?

Ms Mogaladi: Correct.

Adv Mayosi: Can you tell the Committee briefly how you were notified of the initiation of these proceedings?

Ms Mogaladi: I received a letter from Mr Mahlangu, dated 10 October, where he was requesting me to make representations on the intended disciplinary action against me. The initial letter of the 10th was focusing on the FSCA investigation. The letter also requested me to make representations on the intended disciplinary action as required in the policy. However, specific in the PPSA disciplinary policies that if the employer intend to suspend, you should be given an opportunity to also make representations on the intended suspension. In my letter, I was not given the opportunity. The letter did not refer to any intended suspension. I responded on the intended disciplinary action because I was not aware that there was an intention to suspend me…

Adv Mayosi: But as a result of your representation. Okay, sorry. Ms Mogaladi, you wanted to say something.

Ms Mogaladi: Yes, I wanted to indicate that I responded to the CEO on the 22nd. The initial date was the 18th but I requested extension until the 22nd. It was granted and I responded to the CEO on 22 October.

Adv Mayosi: And what happened on 22 October?

Ms Mogaladi: Two hours after submitting the representations on why disciplinary action should not be taken against me. I received a letter. It was personally brought to my office by Mr Gumbi Tyelela, the HR manager, suspending me from the office with immediate effect. It was received two hours after I submitted my representations. I had to leave with immediate effect. I had to leave everything, the employer's assets and everything. And he indicated that he was told that I had to leave with immediate effect.

Adv Mayosi: The suspension letter that you got from Mr Mahlangu is the one on PM4, page 3934. Can you go there please?

Ms Mogaladi: Yes, that is the letter.

Adv Mayosi: Okay, where he refers to his letter dated 10 October where he invited you to make representations, right?

Ms Mogaladi: Correct.

Adv Mayosi: And he acknowledges receipt of your written representations dated 22 October. And he confirms that he thoroughly considered them and applied himself to them in making a decision as to whether or not the PPSA should institute disciplinary proceedings against you, right?

Ms Mogaladi: Correct.

Adv Mayosi: And in paragraph three, he once again reiterates his view that the issues at hand amounted to serious allegations of gross misconduct against you and they are viewed by the organisation in an extremely serious light and the PPSA therefore intends instituting disciplinary proceedings against you, right?

Ms Mogaladi: Correct.

Adv Mayosi: So he says in paragraph four, further, having regard to the gravity of the matter, the organisation has taken a decision to place you on a precautionary suspension on full pay for a period of not more than 60 days from the date on which you acknowledged receipt of this letter, pending the final determination of your conduct by way of a disciplinary process to be instituted against you, right?

Ms Mogaladi: Correct.

Adv Mayosi: Which date did you receive this letter?

Ms Mogaladi: I received it on the same day, 22 October.

Adv Mayosi: And ultimately, how long was your period of suspension?

Ms Mogaladi: I was on suspension for a year and 10 months during the disciplinary hearing, and a further three months after the sanction imposed by the chairperson. So overall, I was on suspension for two years and a month.

Adv Mayosi: Ms Sekele also received a similar suspension letter on the same day, correct?

Ms Mogaladi: Correct.

Adv Mayosi: Was this same day Ms Basani Baloyi was suspended or not?

Ms Mogaladi: I think Ms Baloyi was suspended on the 21st. So this was a day after Ms Baloyi’s suspension.

Adv Mayosi: And your evidence is that Mr Madiba was also suspended, right?

Ms Mogaladi: Yes, correct. He was suspended on the same day.

Adv Mayosi: What happened to his disciplinary process?

Chairperson: Just a pause, Adv Mayosi. Adv Mpofu?

Adv Mpofu: Chair, I just wanted to check with Adv Mayosi. The witness is making a mistake or is that what the evidence is about Ms Baloyi’s suspension?

Adv Mayosi: I think the witness said she thinks that Ms Baloyi was suspended the day before.

Adv Mpofu: Yes, but Ms Baloyi was never suspended any day before or after.

Adv Mayosi: Correct, yes. You are aware of course, Ms Mogaladi, that Ms Baloyi was on probation as the employer says and then her permanent employment was not confirmed, right?

Ms Mogaladi: Correct.

Adv Mayosi: She was told that her permanent employment was not confirmed on 21 October.

Ms Mogaladi: Correct.

Adv Mayosi: She had to leave the leave the premises on that day. Is that right?

Ms Mogaladi: Yes, it's correct. So let me correct myself. It was the day before she left the Office.

Mr M Mahlaule (ANC) Chairperson?

Chairperson: Just pause, Ms Mogaladi. I don't see your hand, Hon Mahlaule.

Mr Mahlaule: My apologies, Chair. I just want to raise that I'm not sure whether it's the witness surroundings, but there is somebody who is speaking on the side and disturbing the process. It looks like it's another meeting. Somebody logged on two meetings. Can we sort that one?

Chairperson: Okay. Thank you for that. We’ll make sure that whatever gadgets whether TV, if Ms Mogaladi can switch them off.

Mr X Nqola (ANC): Chair?

Chairperson: Hon Nqola?

Mr Nqola: No, Chair. I want to register that there is generally an echo. Even when Hon Mahlaule was addressing there was an echo. So maybe it's an IT technical arrangement through Zoom, if they can check that as well, thank you.

Chairperson: It's just that we have no echo from you. So it would not be an IT problem. We’ll watch that as they respond. We ask IT to fix that if there is such an echo. Are you ready, Ms Mogaladi?

Ms Mogaladi: Yes, Chairperson.

Chairperson: Thank you. That seems to be proper. Over to you, Adv Mayosi.

Adv Mayosi: Thank you, Ms Mogaladi and members. Sorry, I think I disturbed you when I asked you about Ms Basani Baloyi. You were describing or telling the Committee about how the process went for Mr Madiba. You said earlier in your evidence that Mr Madiba was also suspended. And my question to you was what happened to his disciplinary process? Can you tell the Committee about that please?

Ms Mogaladi: Okay. The disciplinary process was set down together for the three of us. Initially, the matter was set down for December. The hearing didn't proceed. Then we received the revised charges for the three of us and the matter was set down for March. However due to the lockdown, the case could not proceed until July and the matter was set down for all three of us on 6 July. But at the time of the set down Mr Madiba was hospitalised. Mr Madiba was sickly. He had stroke in December 2017. So he was struggling with his health, so at the time he was hospitalised. Initially our legal representatives requested postponement of the matter, but the employer was not amenable to postponement. After discussions, Mr Madiba’s matter was separated from our case. The hearing proceeded against me and Ms Sekele, and a separate chairperson was appointed for Mr Madiba. In our case, we continued with an advocate as the chairperson.

Adv Mayosi: And can you tell the Committee what the outcome of Mr Madiba’s process was?

Ms Mogaladi: The outcome of Mr Madiba’s case was he dismissed around June 2021. And he passed on about a month after he was dismissed in July 2021.

Adv Mayosi: In the next section of your affidavit, you deal with the charges against you and Ms Sekele. How many charges did you face?

Ms Mogaladi: I faced six charges.

Adv Mayosi: And the charges detailed in charges one to four were for gross negligence or recklessness in the performance of your duties and/or failure to effectively manage subordinates in relation to the FSCA matter, right?

Ms Mogaladi: Correct.

Adv Mayosi: Charge five was for unprofessional conduct and/or conduct unbecoming of an executive manager in the Office of the PP, right?

Ms Mogaladi: Correct.

Adv Mayosi: Charge six was for gross reckless dereliction of duty, alternatively, gross misconduct, right?

Ms Mogaladi: Correct.

Adv Mayosi: Can you detail for the Committee when we go back to charges one to four, it had various sub charges and various allegations that were made in support of that charge. What were those allegations in support of that charge?

Ms Mogaladi: As I start it should be noted that charges one to five arose from the FSCA investigation. And the sixth charge is the one that arose from a different matter, being the Rabie matter. With regard to the FSCA, the first sub charge it was alleged that I had taken no action meaning disciplinary action against Mr Madiba for abandoning his role as the chief investigator and/or his failure to perform a proper and diligent hand over of files / information received from the FSCA. Maybe just to put this into proper perspective. Mr Madiba was the chief investigator. Earlier on I indicated that the files were handed over to him and Ms van Eeden and then when the target was not met, he made an undertaking that he will step in, assist and draft the section 7(9) letter. So the charge was basically that he did not hand over the files properly back to Ms van Eeden so I should have charged him for that.

Adv Mayosi: There were two further components to charges one to four, which related to the section 7(9) notice and to the Rule 53 record, correct?

Ms Mogaladi: Yes, correct. Sub-charge two stated that in performing my supervisory role, I ought to have been aware that the section 7(9) assigned by the PP on 26 November 2018 was defective for various reasons. The various reasons were stated in detail in the charges, but they centred around the fact that the evidence was not properly ventilated in the draft section 7(9). The issues in that particular 7(9) related to decisions of court. The case was older than two years. And I did not articulate the reasons that the Public Protector took into consideration in deciding to investigate the matter. There was also a contention from the FSCA that the EFF was not the true complainant in this matter, but rather that Mr Simon Nash was the true complainant. So the charges related to the fact that I did not disclose in the section 7(9) that Mr Nash was the true complainant and not the EFF. Basically those were some of the issues and also it related to the fact that some of the evidence was not included in the particular section 7(9) notice. Sub-charge three stated that in performing my supervisory role, I failed or refused to ensure that the defects in the section 7(9) notice were not repeated in the final report that was signed by the PP at the end of March. It further said that as a result of this, the FSCA report suffered defects that rendered it indefensible in the review application instituted by the FSCA. Sub-charge four related to the Rule 53 record that I failed to file a comprehensive record.

Adv Mayosi: The allegations in support of charge five related to the manner in which it was alleged you conducted yourself during consultations with counsel in the litigation, right?

Ms Mogaladi: Correct. Yes. The allegations was that I expressed and/or supported the view that I had my own concerns and doubts as to the veracity of the complaint and the FSCA report. Further, that I expressed or made comments or conveyed an attitude to counsel that I had no faith and confidence in the investigation that culminated in the FSCA report. But basically it related to the discussions that we had during consultation with counsel during litigation of the matter.

Adv Mayosi: And charge six was for gross reckless dereliction of duty, alternatively, gross misconduct and this arose from the Rabie matter. Can you tell the Committee very briefly what the Rabie matter was about?

Ms Mogaladi: Okay. The Rabie matter was a complaint that was received from Mr Rabie by the Public Protector in 2011. It was a complaint lodged against Eskom. The complaint at the time was handled by the former colleague being the unit that was managed by Adv Fourie. It was closed by a closing report signed by Adv Fourie in 2014. Mr Rabie around 2018 took that report on judicial review. The approach and the decision by Legal Services was that the Office should not defend the matter because Mr Rabie did not have good prospects of success. It was based on arguments such as the application for review was out of time and also substantively on the issues that he was raising. It was indicated that he did not have good prospects. So the review application was not defended. In his prayers, amongst others, Mr Rabie requested the court to review and set aside the closing report signed by Adv Fourie and to direct the Public Protector to reinvestigate the complaint; that the investigation had to be completed in two months and the report issued on the third month. The court ruled in favour of Mr Rabie. It upheld his request. We got a court order which directed the Public Protector to investigate and conclude the matter within three months and there was a cost order. When Legal got the court order, they recommended that the matter should be allocated to GGI. Specifically, the recommendation was to ensure that we comply with the court order, there should be a preliminary investigation that is conducted, and a report issued within that particular three months. There was also a recommendation that the investigation should be allocated to a chief investigator. The submission went through different people. It was directed at the Public Protector, I think, Legal and the CEO recommended. But the late Mr Nyembe was the Chief of Staff, he raised concern and his actual comment, handwritten on the submission, was that he doesn't agree with the submission from Legal because he felt that Legal was cutting corners in the matter because the case is complex and cannot be concluded in three months. It went to the Public Protector. The Public Protector signed a submission but did not per se indicate whether she was approving the recommendation from Legal Services. Instead, the Public Protector made a handwritten comment where she said, COO can you see the challenges relating to not defending this court matter. And then the directive was that the COO should engage with the investigation team. So my charges around this matter – we couldn't finalise that investigation and conclude it in three months because firstly, the advice provided by Legal Services was problematic because it is clear from the Public Protector in the rules that you conduct a preliminary investigation with a view to determine the merits of the complaint. Then there are various steps that you take once we have conducted a preliminary investigation. One of them would be either you decide to close the matter, or you conduct a full investigation. So it was problematic in the sense that Mr Rabie in his papers was alleging that the initial complaint was not properly investigated. I think he used the terminology ‘whitewash’, that it was a whitewash because the matter was closed on the basis that he had entered into a settlement agreement with Eskom so there was never a proper and a full investigation. Also taking into consideration the various timelines for conducting investigation, it was not possible to investigate the matter of such complexity within the timelines as alluded to. So the charges related firstly to the fact that the investigation was not completed. Also that the file was not allocated to a chief investigator but was rather allocated to a senior investigator to investigate. There was also said that as a result of that, the Public Protector was interdicted and was held in contempt of the court order. But what happened is that there were other parties that came on board during that litigation because as soon as we started raising allegations against Eskom and the other implicated parties, then they realised that the court order was obtained without serving them as the interested parties. Hence, initially, they had requested that we should give them an opportunity to take the decision to reinvestigate the matter on review. It was not agreed on and they sought a interdict to interdict the Public Protector from proceeding with the investigation. That is basically what happened in this whole Rabie matter. My charge and Ms Sekele's related to that particular investigation. (1) I did not assign the matter to a chief investigator and (2) we could not complete the investigation within three months. I must also point out that…okay?

Chairperson: Continue. Finish up.

Ms Mogaladi: Okay. I was saying I must also mention that the nature of the issues raised by Mr Rabie fall within what we term ‘conduct failure issues’ and the turnaround time that has been set for completing such investigations is 24 months. Hence I was saying the strategy that was proposed by Legal Services was difficult. It was not possible. It was incapable of being achieved. So the charges stemmed from this particular matter. Thank you.

Adv Mayosi: Ms Sekele faced the charges that are detailed in paragraph 82 of your affidavit, correct?

Ms Mogaladi: Correct.

Adv Mayosi: The chairperson of the disciplinary hearing for both of you made a ruling of guilt on 4 March but he didn't give his reasons then, right?

Ms Mogaladi: Correct.

Adv Mayosi: He only provided his ruling furnishing full reasons on 9 March 2021, correct?

Ms Mogaladi: Correct.

Adv Mayosi: And then on 11 March, he requested both of you as well as the PP to make written submissions on mitigating and aggravating factors for his consideration and sanction, correct?

Ms Mogaladi: Correct.

Adv Mayosi: You say that on 9 April, he then informed you that he had provided his ruling on sanction to the attorneys of record of the PPSA, correct?

Ms Mogaladi: Yes, he informed us through our attorneys of record.

Adv Mayosi: Right. But you only received his ruling on sanction on 7 May when you received the PP’s letter, dated 6 May, where she stated her views about the sanction, right?

Ms Mogaladi: Yes, correct.

Adv Mayosi: And you say in your affidavit that it was apparent from the PP’s letter that she disagreed with the chairperson on sanction. Just for the Committee, in relation to you, the chairperson had recommended that you be suspended without pay for a period of three months coupled with a final written warning for six months and that such a final written warning commence after the expiry of the suspension, right?

Ms Mogaladi: Correct.

Adv Mayosi: In relation to Ms Sekele, the recommended sanction was that she be suspended for two months without pay, together with a final written warning of two months and that the final written warning commences after the expiry of the suspension?

Ms Mogaladi: Correct.

Adv Mayosi: But in the letter that you received on 7 May from the PP, you say it was apparent that she disagreed with the sanction imposed by the chairperson, right?

Ms Mogaladi: Correct.

Adv Mayosi: And why do you say that?

Ms Mogaladi: The letter from the PP was very clear that she disagreed with the ruling of the chairperson because she felt that the sanction… she disagreed with the sanction imposed by the chairperson, because she felt that the sanction was not appropriate to the misconduct in question. The letter clearly indicated that the PP has imposed a sanction of dismissal and she wanted us to provide us with reasons why she should not impose that sanction of dismissal.

Ms Mogaladi: Right. This is the letter that was sent to you by the PP. This is the wording of that letter, correct?

Ms Mogaladi: Yes, that is the wording of the letter.

Adv Mayosi: And she says in paragraph five, "Having considered the findings, on evidence, of the chairperson and the subsequent sanction imposed I have decided not to implement the sanction imposed by the chairperson. I am of the strong view that the sanction imposed by the chairperson is not appropriate apropos the charge, the nature of the misconduct, the guilty verdict, and the breakdown of the relationship of trust between the employer and yourself. Thus, I am hereby imposing a sanction of dismissal with immediate effect, subject to receipt of your representations as stated below. It is apparent from the findings of the chairperson that the trust relationship between the employer and yourself has irretrievably broken down. To this end, I am a affording you an opportunity to make representations on why a sanction of a dismissal would not be appropriate under the circumstances". And she gave you a period until 18 May for those representations, right?

Ms Mogaladi: Correct.

Adv Mayosi: Did you make those representations to the PP?

Ms Mogaladi: No. I didn’t.

Adv Mayosi: What transpired then?

Ms Mogaladi: We consulted with our attorneys. And we decided to challenge the PP’s decision because we felt, and we also sought legal advice that the decision of the PP was not in line with the disciplinary code that was approved by the Public Protector. We felt that the decision of the PP was imposing an additional sanction over and above what was imposed by the chairperson, and it was subjecting us to further action without following due process. It was based on the fact that the disciplinary code, the clause is very clear that the chairperson shall submit a report containing the final sanction of the disciplinary hearing. Firstly, to the Chief Executive Officer in respect of employees on level one to 12 and the Public Protector in respect of employees on senior management. Myself and Ms Sekele are part of the senior management. So the sanction in the report of the chairperson was submitted to the Public Protector for implementation. We felt that it was not proper for the Public Protector to change the sanction that was imposed by the chairperson. We applied for an urgent application in the Labour Court, seeking an order interdicting the Public Protector from changing the sanction imposed by the chairperson.

Adv Mayosi: And did you succeed?

Ms Mogaladi: Yes, we succeeded. The court granted the relief that we sought and made the order as follows, that the PP was interdicted from invoking a secondary disciplinary process as she intended to do by her letter, dated 6 May 2021. The PP was ordered with immediate effect to implement and comply with the final sanction as imposed by the chairperson of the disciplinary hearing, dated 8 April 2021. The parties were to bear their own costs.

Adv Mayosi: And you say in paragraph 97, that the PP served you with a notice of application for leave to appeal this judgment, an order on the 28th that was delivered on 28 May, right?

Ms Mogaladi: Yes, we didn't hear anything from the Office as from the date of the judgment of the Labour Court, until 21 June 2021, when the PPSA served us with a notice of application for leave to appeal to the Labour Court against the whole judgment and order granted by Justice Tlhotlhalemaje, that was delivered on 28 May 2021.

Adv Mayosi: And you say that the PP’s application for leave to appeal was dismissed with costs on 24 July, correct?

Ms Mogaladi: Yes, that is correct.

Adv Mayosi: She then addressed letters to both you and Ms Sekele on 10 August, right?

Ms Mogaladi: Yes, it is correct.

Adv Mayosi: Can you go to the letter, PM13, page 3985? Is that the letter that was addressed to you?

Ms Mogaladi: Yes, that is the letter.

Adv Mayosi: Where she told you that she was intent on not implementing the sanction imposed by the chairperson, on the grounds that she had indicated to you in her letter of 16 May, correct?

Ms Mogaladi: Actually advocate, if we can go to the first paragraph: Please be informed that I am implementing the sanction imposed by the chairperson of the disciplinary process as directed by the Labour Court on 28 May. That is the first paragraph. Then the second one is the one that indicates that.

Adv Mayosi: That she was intent not to do so?

Ms Mogaladi: Yes. On the grounds canvassed in her letter of 6 May.

Adv Mayosi: That the dispute had to be settled by the Labour Court before she could implement it. The effective date of implementation will be 12 August. And she told you that you are to return to work on 12 November 2021.

Ms Mogaladi: Correct.

Adv Mayosi: Advised you in paragraph eight that she intended to review the sanction of the chairperson in the Labour Court. But that that review would not affect the implementation of the sanction, right?

Ms Mogaladi: Correct.

Adv Mayosi: In your affidavit you then say on 18 August 2021 the PPSA filed an application to review the decision of the chairperson on the sanction – which was the application the PP had told you about in the letter we've just talked about, correct?

Ms Mogaladi: Correct.

Adv Mayosi: Can you tell the Committee what has happened in relation to that application?

Ms Mogaladi: We defended the application for review and all affidavits had been filed, including the heads of argument but on 27 July 2022, our attorney received a notice of withdrawal that was filed by the Public Protector’s attorneys of record in this matter. The notice of withdrawal was withdrawing the application for review and was tendering the cost that we had incurred so far in defending the matter.

Adv Mayosi: To your knowledge there have been other reports in the PPSA that have been taken on review and set aside including costs orders made in relation to those reports. Are you aware of executive managers and chief investigators who having been disciplined as a result of those reports?

Ms Mogaladi: No, I only know myself, Ms Sekele and Mr Madiba. So far it's the only the three of us that I know of.

Adv Mayosi: Alright. In the next section of your affidavit, you deal with what you describe as the unhealthy work environment in the Office. You start this section by addressing the problem of the backlogs in the organisation. You say in paragraph 103, this is a major issue?

Ms Mogaladi: Correct.

Adv Mayosi: Yes. Can you elaborate please for the Committee on this issue of the backlogs and how it arises and what its root causes are, according to you?

Ms Mogaladi: I think I need to first start by stating that backlog has always been.

Adv Mayosi: Yes. Ms Mogaladi, we were in the section of your affidavit where you describe what you call the unhealthy working environment at the PPSA, and I had asked you to address the Committee on this issue of the backlogs that you talk about at the forefront of your affidavit.

Ms Mogaladi: Okay. The issue of the backlog in investigations – it is a challenge for everyone, for the Public Protector, for us as executive managers, for the investigators, as well as for the complainants because once they complain to us, they expect that they would get prompt service from us, as the Public Protector. It is a problem that historically has always been there in the organisation and from my own assessment based on the annual reports and the various strategic plans that as the organisation we've been putting in place. This issue dates back many years. When I looked at the annual reports and the strategies, I could see that as far back as 2014 we tried to come up with a plan to deal with the backlog. The backlog in my view is caused by many factors. One, in my view is the lack of sufficient resources for the organisation. Sufficient resources being the warm bodies to conduct the volume of complaints that we receive as an institution. And secondly, the financial resources to appoint more staff members. I think it is common knowledge that the current PP, including all the former Public Protectors, from time to time would raise the challenges that the organisation is not sufficiently funded. Those challenges would be raised during either the presentation of the annual report to the Portfolio Committee or even on an annual basis the accounting officers in the Public Protector would always make submissions for additional funding from National Treasury to fund the posts so that we are in a position to adequately attend to the volume of complaints that we receive. And another factor that leads to the backlog over and above the lack of sufficient resources, it's the complexity and the technical nature of some of the cases that we receive as the Public Protector. Most of the cases that we receive as an organisation, we might find that you receive one complaint. But within that one complaint you might be having several issues that need to be investigated. Some of those investigations would be technical, because the Public Protector Act doesn't – any person can approach us and can lodge a complaint against any state institution. So the issue of the complexity of the complaints and also some of the reasons that also contribute is the service delivery challenges in government and some of the departments. We often find ourselves in a situation where over and above due to the capacity challenges in some state institutions, the volume of complaints that we receive increases. As a way of coping, we will try to come up with systemic challenges. We would take appropriate remedial action in the reports, but we don't get the full cooperation in terms of implementation and turnaround time in those institutions. So even though we might have conducted a systemic investigation, we still get a high volume of complaints. So the issues cumulatively lead to backlog and it's not necessarily true that it's because investigators are not working. My view and my experience is this is one organisation where people are really committed, they often go beyond the call of duty. Some people would even come to the office over the weekend. Some would work long hours just as a way of trying to cope with the workload and the backlog. So that is my view on the backlog and from time to time, in the strategy we would set out the targets that will try to eradicate the backlog. It will be cascaded back to the individual performance agreements of the managers as well as the investigators. But we still find ourselves in a situation where we still have the backlog. There has been several interventions to try and deal with the backlog. But we still find ourselves in a situation where we do have the backlog. Thank you.

Adv Mayosi: You say in paragraph 106, that in order to deal with the backlog and move investigations along from time to time there have been various mechanisms. I think that's just what you've alluded to now. Can you elaborate on those mechanisms that have been devised from time to time to try and address the backlog?

Ms Mogaladi: Okay. The mechanisms would start with the strategy that would set a target for dealing with a backlog of cases. Initially, we started by saying we want to finalise all the backlog cases, by the end of the financial years. It was not working very well, then we realised that I think we were not realistic about the targets that we had set. Then in the later years, the target went down to 80%. And as part of monitoring the performance we used to report at the Dashboard meetings as executive managers. Dashboard meeting is a meeting of the Public Protector with all the executive managers. Initially, we would report on the cases that fell outside the defined turnaround times. So we have three different turnaround times for finalising investigation. For complex, good governance and integrity matters its 36 months. Normal GGI matters will be 24; Service delivery 12 months, and six months for early resolution. So at the Dashboard initially, we would be reporting on the cases that fell outside these turnaround times. There would also be cases in terms of the Executive Members Ethics Act complaints lodged in terms of this Act that must be finalised within 30 days. So we would always regard those that went beyond the 30 days as being part of the backlog and we would report quarterly. Initially the Dashboard was quarterly, and it was changed to monthly. We would report the progress that has been made on those cases.

Adv Mayosi: In paragraph 109, you describe again what the Dashboard meetings were about, and we've heard from various witnesses before about the Dashboard meetings and what they would be about. You say that executive managers there would present the unit's performance and present what strides would be made to deal with the backlog and they'd give an overall picture of the unit's performance, and so on. You say in paragraph 110, that when you came back from suspension, you noticed that during Dashboard meetings the focus had changed, and it was only around…. The focus changed. Can you elaborate more on that for the Committee?

Ms Mogaladi: Okay, thank you. Before I went on suspension, as mentioned earlier, our focus was reporting only on cases that were older than two years and the different strides but when I came back. Firstly, the reporting expanded to all current matters in the organisation. When you presented the report, you would have to indicate on each case what product is expected. The product would either be, if it's a new complaint, you would have to indicate when an allegation letter is going to be issued. If you have to issue a subpoena on the matter, it would be the date of such. Or if it's a section 7(9), you indicate that section 7(9) by date so and so. Report by date. So it was no longer as in the past where we would interrogate these matters. You would have to answer the two questions, what product is expected, being one of those four. Then the next question would be a date by when. But also…

Adv Mayosi: So what’s the problem with that?

Ms Mogaladi: The difficulty with this is that, firstly, there would be a target date in terms of when these matters would have to be dealt with. Let's take, for instance, my first Dashboard when I came back from suspension at the end of January. Clearly at that Dashboard the decision was with all cases that are out of timeline, they have to be finalised by 31 March, which was in two months. So the difficulty with what product is expected and by when is that you will look quantitatively at the issues without looking at the qualitative issues such as what kind of product and the complexity of the case you are dealing with. Are there any challenges around the investigation in terms of the deliverables, because the due date did not take into consideration the overall risk, as well as the challenges that you might come across. Also, the complexity of the matters being investigated. And also, even in terms of the product or the deliverable expected, what would it take for the investigator to deliver that. So for me, that was one of the things that was a challenge. I really felt as if we were just going through the run of the mill where people would just say date so and so, and it kind of created challenges for me because it's easy to put those deadlines, but when you go back to the reality of going to the files, it becomes something else. You have to look at the added complexity and what also is important is that you need to look at the volume of evidence that has been produced. Also it did not take into consideration the number of cases that were on hand with the different investigators at the time. There was a situation where you might find that one person was dealing with about 15 complex investigations and they were expected to finalise by the end of March.

Adv Mayosi: So Mr Futana Tebele in his evidence said that what the PP was expecting was people to comply with their own self-imposed deadlines, that there was nothing unreasonable about that. Do you have any comment to make to that?

Adv Mayosi: Look, in my view a deadline it's a process where you don't just look at the end date. You look at the circumstances of each case. You analyse each case and then you take into consideration the various milestones that are expected to be delivered in the particular deadline. But in this process we embarked upon, there were times in ascertaining a time period where for instance it would be said, all cases older than two years must be finalised by the end of March. So if I come in at the end of January and I'm told that, yes, you're on target, but know that you must finalise all these cases by the end of March. It is not reasonable. It is not realistic, because I find myself in a situation where I am confined within a certain time period. It did not take into consideration the circumstances or the complexity of the cases that were being dealt with. For me, I think setting of own targets was, for lack of a better word, I would say it was superficial setting of own targets because it always had an end period that you were confined to. The individual content of the respective files did not really matter, you had to comply with those timelines.

Adv Mayosi: And is this what you are alluding to in paragraph 112 of your affidavit where you say. 3908. The PP demonstrated no interest in these factors, and this is with reference to what you say in paragraph 111? Is this what you are talking about, the targets that become set do not take into account all of these factors?

Ms Mogaladi: Correct.

Adv Mayosi: So Chair I'm about to start a whole other line of questioning from about paragraph 114, which deals with an email trail that's going to take a bit and that needs to be followed. I wouldn't like that to be interrupted. I'm suggesting, Chair, through you that this might perhaps be an opportune time.

Chairperson: Thank you. Those times are set. Thank you. W will pause there and then when we come back from two, we'll stretch you up until three with everything else that you have. If you are able to do that. The time now is just six minutes before one. We will take a five-minute early lunch break and be back at two. Thank you very much.


Chairperson: We resume our enquiry. I recognise Adv Mayosi. Ms Mogaladi, are you there?

Ms Mogaladi: I am back, Chairperson. I’m here.

Chairperson: Thank you. Welcome back. Adv Mayosi.

Adv Mayosi: Thank you, Chair. Ms Mogaladi, before the lunch break we had started to delve into the section of your affidavit that deals with what you call the unhealthy working environment at the PPSA. You had taken the Committee through the issue of the backlog and the setting of targets and how when you returned from your suspension, you noted that the focus at Dashboard meetings was different. It was only about the product and when that product would be delivered. You remember that right? Just before we went to lunch.

Ms Mogaladi: Correct.

Adv Mayosi: If we can start at paragraph 112 of your affidavit, you said that the PP showed no interest in some of the factors that are relevant to target setting that you mentioned in paragraph 111, right?

Ms Mogaladi: Correct.

Adv Mayosi: We were about to go into paragraph 113 where you say you've experienced the PP’s inflexibility on this score on a number of occasions. You set out in the rest of your affidavit, the instances where, well, the first instance where you experienced this. You say that with reference to an attachment called PM15, which is an email trail on page 3989. But as email trails go,to understand the whole chronology of the conversation, you have to start at the end and get to the top. So if you could go to 3991. And what you say in paragraph 114 is that PM15 relates to reports that were to be completed by the various units and submitted to the PP on or by 25 October 2018, correct?

Ms Mogaladi: Correct.

Adv Mayosi: So if we go to 3991. That's where this email trail begins, PM15. Are you able to recall what that email was about? It's from Ms Nthoriseng Motsitsi. She was the Acting COO at the time, correct?

Ms Mogaladi: Correct.

Adv Mayosi: This email is dated 24 October 2018. You were the executive manager at AJSD at the time, right?

Ms Mogaladi: Correct.

Adv Mayosi: Ms Motsitsi is saying to you, as well as others, including Mr Ndou, Lesedi, Abongile Madiba, Rodney, and so on, "Dear colleagues this is a reminder to submit your reports on 25 October 2018 due for media release". Do you see that?

Ms Mogaladi: Yes, I can see that.

Adv Mayosi: What was the date of the media release that she was talking about?

Ms Mogaladi: Media releases are normally planned for the end of the month. So this one, it was planned for the end of October, but the date was not yet confirmed.

Adv Mayosi: So it was for the end of October.

Ms Mogaladi: It was for the end of October. Yes.

Adv Mayosi: At the very latest it will be 31 October, right?

Ms Mogaladi: Correct.

Adv Mayosi: She then asked all of you to submit your reports. Please submit your reports to Miss Pona Mogaladi tomorrow to enable her to submit them for QA. Mr Singh's report is due on 26 October 2018. You see that Ms Mogaladi?

Ms Mogaladi: Can you repeat, Adv Mayosi? There was an interruption in my connection.

Adv Mayosi: I was merely reading Ms Motsitsi’s email of 24 October, where she was reminding you all to submit your reports on 25 October, right?

Ms Mogaladi: Yes, correct.

Adv Mayosi: Did you submit your unit’s reports for the media release of 31 October 2018?

Ms Mogaladi: On that list, there are two reports that related to AJSD. I did not submit those reports and I provided an explanation for the non submission.

Adv Mayosi: All right, go up to the bottom of 3990. On 30 October Ms Motsitsi then addresses that email. It's on this email trail at PM15, that you've referred to in paragraph 114. She addresses an email on 30 October to, amongst others, yourself, Mr Ndou, the same recipients she had addressed on 24 October asking for reports. In this email, she's somewhat disconcerted and says as you all know the PP was supposed to release all the reports below. She refers you to the reminder that was sent to all of you on the 24th, that all your reports should be submitted by the 25th and 26th. And she's deeply saddened to hear that only three reports were submitted for tomorrow's release. So it appears that the release was on 31 October because this email is dated 30 October. And she says, obviously this is the last straw for the PP, and I wish to remind you to initiate remedial action, consequence management against the senior investigators that have failed you. Investigations branch can safely be said is setting up PPSA to fail. We are in the dock, check the status of reports that were supposed to have been issued tomorrow. This is bad news. We are going down. I'm so sorry to say this to all the executive managers in GGI, CIs that have failed and/or neglected to submit their reports on 25 October 2018. Can you provide reasons for your neglect and/or failure by 2 November 2018, before end of business. For your information and conscience, she says. She then has a list of the reports presumably that were not submitted, correct?

Ms Mogaladi: Correct.

Adv Mayosi: Number two in that report was your report. Is that right?

Ms Mogaladi: Yes, correct.

Adv Mayosi: And number 10 has your name against it. That was your report. Is that right?

Ms Mogaladi: Yes, correct.

Adv Mayosi: And numbers five to eight, where Mr Abongile Madiba’s reports, right?

Ms Mogaladi: Yes, as well as part of nine. It was five, six, seven, eight, nine. And within nine, if you look at nine, there's three reports. All of them, five to nine is reported from Mr Abongile Madiba’s team. Five to nine.

Adv Mayosi: Was he in your unit at the time?

Ms Mogaladi: He would be in my unit a day after that, from the 1st because this email was sent on the 30th. In two days' time he was going to report to me.

Adv Mayosi: All right. To carry on in that email trail, these two reports that have your name against them, you had not submitted them in time, as requested by Ms Motsitsi. Is that right?

Ms Mogaladi: Yes, correct.

Adv Mayosi: Okay, move up to 3990. Then Ms Motsitsi of course requested you all to submit reports and explanations as to why. Was this your explanation?

Ms Mogaladi: Yes, it was my explanation.

Adv Mayosi: You explained in the PEU matter and in the Dube matter what the issue was, right?

Ms Mogaladi: Yes, correct.

Adv Mayosi: Right, move up to 3989. On 13 November Ms Motsitsi then addresses an email to the PP. Do you see that?

Ms Mogaladi: Yes.

Adv Mayosi: And she says, as discussed, please find the information received with regard to the PEU and Dube cases. I will proceed and request the latest update from Ms Mogaladi. So there she is forwarding to the PP the explanation that you had given her about the PEU and Dube matters earlier, correct?

Ms Mogaladi: Yes.

Adv Mayosi: Move up. Right and on the same day. Do you want to tell the Committee about that email? It's addressed to you, amongst others. Well, you are copied in it. Its addressed Ms Motsitsi. You copied yourself and Mr Vussy Mahlangu. What is the response of the PP?

Ms Mogaladi: The response of the PP was a directive to Ms Motsitsi to issue a warning letter to myself for failing to send the letter to the Minister of Justice on the Dube immediately after the Dashboard decision. She took two months to do that. And on the PEU matter, the PP stated that the matter had been pending since 2017. She said if you check the Task Team list, you will see how many times the goalpost or target was shifted.

Adv Mayosi: Right. If you go to the top, Ms Motsitsi then responded to the PP that the contents are noted and told her that the Mbalula file and Commissioner of Police file are en route to her office, if not there yet. Do you see that?

Ms Mogaladi: Yes, I can see that.

Adv Mayosi: Go back to the affidavit. 3909. So these emails explain the context in which these emails and the PP’s instruction occurred. You do allude to it in paragraph 116, where you say this happened just after you'd taken over the additional portfolio of Acting EM: GGI. Can you explain to the Committee the pressures that you say you are under at the time?

Ms Mogaladi: I think let me first start by putting the proper context of the two matters so it is clear to the Members what really was the context within what was happening in these two matters. The two cases were both matters pending in court. There were different actions at various times. Either one of the parties had taken the matter to court whilst our investigation was ongoing. For instance, with the PEU matter – that’s what we commonly called it in the Office, but it was a complaint against the City of Tshwane for awarding the smart prepaid meters to a service provider called PEU. After receiving the complaint as the Public Protector, we were busy, the parties decided to refer the matter to court. The issues that were pending before court were similar to the issues that we're dealing with as the Public Protector. Dube was an investigation that we had conducted. We issued a 7(9) and the Minister of Justice, in responding to the 7(9), informed us the matter was pending in the Constitutional Court. The Minister indicated that we shouldn't proceed; he will revert back to the Public Protector once the Constitutional Court made a ruling on the matter, because the ruling of the court was relevant to the issues before the Public Protector. So when these instructions came in, related to my earlier explanation, it didn't really take into consideration even the reason for not submitting this matter, because the risk that we're running as a Public Protector was that if we issued a report, or even a 7(9) was the matter was still pending. We ran the risk of issuing a report that might either be contradictory to what the court said, or we might even decide on the same issues that were decided at court and arrive at a different conclusion. On the Dube matter, we’d already made an undertaking to the Minister. At the time that this email was sent – that letter was already sent to the PP’s Office, probably maybe the PP was not aware, but the letter had already been submitted to the PP’s Office during the last week of October. So the difficulty with some of these challenges is that when I took over GGI, I had to do everything possible to try and familiarise myself. I indicated that one of the things that I was doing, with the assistance of Adv Malunga, was to inspect the files just to try and see what is happening and provide directives on some of those cases. And we also noted that due to capacity constraints, there were a lot of backlog cases where not much had been achieved on the GGI investigations. Our priority was to meet with the investigators during the day to go through those cases and provide directives. Therefore, it left me with only the evenings to do my work, both GGI as well as AJSD. So those are the difficulties that I was going through during those first few months at both AJSD and GGI.

Adv Mayosi: And you say in paragraph 19, on 16 November you then addressed an explanatory email to the to the PP setting out your challenges that you'd experienced in one of these matters, correct?

Ms Mogaladi: Yes, correct.

Adv Mayosi: Go to 3994. Is this the email that you addressed to the PP on 16 November?

Ms Mogaladi: Yes, Chair.

Adv Mayosi: So it's an almost three-page email. Can you read, what was the purpose of this email and which matter you were addressing here?

Ms Mogaladi: I was addressing the matter of PEU, one of the issues identified for release during the media briefing at the end of October. It's one of those cases that was on the list provided by Ms Motsitsi.

Adv Mayosi: I'm going to pick out some paragraphs for you to read for the benefit of the Members, as to what your challenges you were trying to communicate were. Can you read the third paragraph?

Ms Mogaladi: "One of the key challenges that we are dealing with a matter that includes over 40 arch levers of evidence submitted by the complainants, City of Tshwane (COT), PEU and affidavits from the two matters in the High Court."

Adv Mayosi: And you state in the next paragraph that the other thing that makes it difficult and challenging is that you’re adjudicating on the same issues that are pending in court, right?

Ms Mogaladi: Yes, correct.

Adv Mayosi: You also state in part of your explanation to the PP, that the parties filed papers requesting the court to grant a just and equitable remedy that's aimed at correcting what is seen as the improper administrative action and a verbal ruling was granted. As will be noted, you say the typed order was granted at the end of October, correct?

Ms Mogaladi: Correct.

Adv Mayosi: And you set out various challenges and explanations throughout relating to the matter. Can you read the last two paragraphs for the Members please until the end?

Ms Mogaladi: "I hope this explains our challenges, personally I am also frustrated because the only time that I can do my other work is at night or early morning, the longest that I have slept over the last two weeks was three hours. I know PP will say that we are doing the work of the investigators, but he is a good investigator who got a bit overwhelmed by the volume of evidence. Our sincere apologies, and on a lighter note the blood of AJSD is on the top of the layer of the skin, so we are hoping that based on our overall performance and efforts Public Protector will forgive us and the whipping stick can remain under the PP’s table until Monday."

Adv Mayosi: The PP’s response then appears at 3993. She says, Good morning, Ms Mogaladi and team. AJSD to focus on the conduct of officials of COT, the evidence we have acquired from COT are not use affidavits or reports from other sources. Always remember the PP report is meant to address the root cause of impropriety and redress to those affected by the conduct. I expect a section 7(9) by the end of business today. Extension not granted. So she didn't grant the extension you requested, correct?

Ms Mogaladi: Correct.

Adv Mayosi: 3993. The PP later on that day addresses an email to the CEO, Mr Vussy Mahlangu, copying Ms Motsitsi, and she says, this undermining by the executives has reached a point where I cannot tolerate. The section 7(9) was not sent by Friday and the final written warning or warning be served on the Executive Manager: AJSD and ACOO for not also ensuring that as supervisor that is done per my instruction. I want to see the warning letter by three o'clock this afternoon. Do you see that?

Ms Mogaladi: Yes, I can see that.

Adv Mayosi: Was that sent to you?

Ms Mogaladi: Mr Mahlangu did not issue a warning letter as directed by the PP. Instead, he served myself and Ms Nthoriseng Motsitsi with audi letters.

Adv Mayosi: But later on that day, as per this email, Ms Motsitsi did forward to you the PP’s decision relating to the matter and she was pleading with you, that the notice is a matter of urgency, right?

Ms Mogaladi: Yes.

Adv Mayosi: Can you recall what happened after that? What you say in paragraph 123 of your affidavit is that the combination of the immense pressure to produce reports, not being heard and threats to one's livelihood made for a very difficult environment to work productively in pursuit of the very targets we were committed to meeting. Are you able to elaborate at all for the Committee regarding that kind of stress and pressure?

Ms Mogaladi: I think at the time I really felt frustrated because I accepted the additional responsibility even though I was not being remunerated. I was hoping that I am going to assist the organisation. And I really felt that notwithstanding the fact that I had indicated that I needed the support and understanding, instead I had compromised myself, as I suspected. I got frustrated, I was forever working, which I think it was untenable because it's unhealthy for any person to keep sleeping for three hours, and I was sitting working over the weekends, and it became even more and more difficult to try and keep up. So I was frustrated. I did everything to try and catch up. Nothing was really working. I think the more I tried, it's the more it became even more difficult. I really felt defeated. And I think, also, whilst it might be seen as audi letters, I really felt that for me, these directives or instructions, whatever they might be seen as, they were not audi letters. A decision was already made. Because if you say that I must be issued with a warning, it means that you have already decided that I'm guilty, you have already decided that you are imposing a sanction on me, and the sanction is either a final warning or a warning. So I really felt that it's just not worth anything. It doesn't help to keep on explaining because when we explained, no matter, the substantive content of our explanations was not taken into consideration. What was more important was this was due on this date, no matter what challenges you were you were experiencing. It didn't matter. If I take for instance the PEU matter, I went at length to explain the challenges. The PP responded to me with one line and the audi letter that was given to me indicated that rather than submitting the notice, I submitted an apology and an explanation that was unacceptable. It was frustrating, because we're not really… I felt that I was not achieving anything because no matter how much I explained myself, the explanation would never be acceptable.

Chairperson: Thank you. Just a pause, Adv Mayosi. I recognise the hand of Hon Seabi.

Mr A Seabi (ANC): Thanks, Chair and my apologies. I just wanted to request that she speaks into the mic. Some of the some of the words we’re unable to get them. Maybe if she speaks directly into the mic.

Chairperson: Okay, thank you Mr Seabi. Keep improving, Ms Mogaladi. Adv Mayosi, thank you.

Adv Mayosi: You say that you on 20 November, you sought legal advice regarding this matter from Mr Nemasisi, right, in paragraph 124 of the affidavit?

Ms Mogaladi: Correct.

Adv Mayosi: And I think the email trail where that appears begins from page 4000. What did you seek legal advice about in relation to this matter from Mr Nemasisi on 20 November?

Ms Mogaladi: Okay, I think the overall challenge about this matter, as I have indicated, was that there was a pending High Court action, in the North Gauteng High Court. There was an order of court, which was a one page, but the full decision and judgment of the court was not yet issued. Initially, the agreement was that we were going to pin this matter until we have a full judgment, and then we'll decide on the way forward on proceeding with the investigation or have the issues been ventilated and correctly addressed by the court. We even went to court to go and upload the documents to the affidavits just to try and keep ourselves up to date with the discussion. The difficulty we were facing was that we still did not have a full court judgment. So when I got the full judgment, that was the discussion that I had with Mr Nemasisi, to say now that we have the full judgment, how do we move forward to avoid a situation where we might be accused of having violated the provisions of the Constitution and the Public Protector Act, that precludes the Public Protector from investigating court decisions. Our discussions centred around that. So the area that I bolded was the main focus. And I think according to this email, we even had an earlier meeting and discussion around this. So the email was confirmation of some of the discussions that we had.

Adv Mayosi: One of the questions you posed to him, of course, was whether it would be proper to issue a section 7(9) letter when you didn't warn implicated parties that you were investigating them and then confronting them with allegations of their conduct on the fruitless and wasteful expenditure, right?

Ms Mogaladi: Yes, it was based on the discussion that we had with Mr Nemasisi where we said, if we were to issue a section 7(9), maybe we should consider the angle of making findings on the fruitless and wasteful expenditure that was based on the outcome of the court decision that had set aside the contract.

Adv Mayosi: Mr Nemasisi responded at page 3999 and in essence he agreed with you, correct?

Ms Mogaladi: Yes, correct.

Adv Mayosi: He said that the implicated parties must be given an opportunity to respond to the allegations in any manner which is expedient in the circumstances, correct?

Ms Mogaladi: Correct.

Adv Mayosi: And you had copied the Acting COO in these discussions, Ms Nthoriseng Motsitsi, who also then joined the discussion above that email, correct?

Ms Mogaladi: Correct.

Adv Mayosi: She also, in essence, said she agreed. She has read through the emails that she had been copied and she agrees with you that issues of fruitless and wasteful expenditure can be addressed by the PPSA and so on, right?

Ms Mogaladi: Correct.

Adv Mayosi: She suggested that you write a memo to the PP to brief her and advise her that after thorough analysis of the contents of the file, there was an obligation on the Office to give those implicated in the investigation opportunity to respond, correct?

Ms Mogaladi: Correct.

Adv Mayosi: You then responded to the Acting COO at 3998. That was your response to Ms Motsitsi, is that right?

Ms Mogaladi: Yes, that is correct.

Adv Mayosi: And in the second paragraph you express the view that as regards to you writing a memo to the PP, you're not sure at this stage if the memo will help. Why did you have that view?

Ms Mogaladi: I had that view because I had been explaining myself over and over. I really felt that the more I explained, the more the explanation is not taken into consideration. And I was really frustrated because we kept on submitting the request. Then we wouldn't really get any support or any form of assistance from the PP in reconsidering the deadlines that were imposed. Instead, it was seen as if we are disrespecting the PP. Also I was concerned by the earlier email that was sent that the disrespect by the EM reached the intolerable level. So if I write again, it would seem that I'm still continuing to disrespect the PP.

Adv Mayosi: In the last sentence of that email to the ACOO, you say, as stated and explained in my email, the delay is not aimed at disrespecting or undermining PP. There are challenges that if not addressed properly, will embarrass us. And I cannot submit an incorrect letter or to PP. That would be malicious compliance and I cannot do that. What did you mean by the phrase ‘malicious compliance’?

Ms Mogaladi: Malicious compliance meant submitting things just for the sake of meeting the deadline. Whilst I know that there might be issues, I did not want to do that. I felt that it would not be proper for me to do that.

Adv Mayosi: Go to 4003. You say in your affidavit at paragraph 125 that Mr Mahlangu then issued you with this letter on 20 November, correct?

Ms Mogaladi: Correct.

Adv Mayosi: This is what you commonly know in your Office as an audi letter, relating to the PEU matter, right?

Ms Mogaladi: Correct.

Adv Mayosi: You gave that as an example of what you described as the PP’s inflexibility and rigidity in relation to the meeting of targets. But in paragraph 126, you also talk about her inflexibility in relation to a traumatic period when you had lost a family member. Do you mind telling the Committee about that experience?

Ms Mogaladi: In April 2018 – I have a niece who’s my brother's daughter; even though she's my niece, she was raised by my mom since she was two so to me, she was more like a little sister – I received the message I think on the 15th late at night that she was admitted to hospital and the doctors had to perform surgery overnight. I come from the North West. I was the closest because she was working in Polokwane. I was the closest so I had to drive there to go and join the other sister who was already at the hospital. She was operated on in the evening of Sunday. I phoned PP and I requested to be excused from work on that Monday. I drove to Polokwane. In the evening, I sent a further message to the PP, detailing the diagnosis and the news that we had received from the doctors. I went at length to explain the condition and also that, from what the doctors had told us, there was really very little that they could still do medically. Then on the following morning, PP responded. I think my message was sent to PP late at night after we had consulted with the doctors. Then the following morning, PP responded and sent me a message comforting me and then she also quoted a scriptural verse. Yes, that is the response from the PP where she says, "Thanks for the update Pona. God is a miraculous God and let's declare healing in your niece and cover her with the blood of Jesus Christ, and you and family keep strong." That was received around five to nine. It was just after I updated PP. The PP’s message was received on Tuesday. The following morning I wrote back. I said, "Good morning, PP. Thank you for your support. Unfortunately, we lost her yesterday. But we have accepted as a family that it is God's plan and she's resting in eternal peace". It was on Wednesday 18th. Then PP responded and said, "Good morning, my condolences to you and family. Indeed, God is the comforter, and He will heal the pain of losing such a young soul. God be your strength. The funeral will be this week?" That was a question from PP. She said she was a young soul. She was about 34. And it was an emergency that led ultimately to her death. Then the following day on Thursday 19 April I received this WhatsApp message from PP saying, "Pona, can I have all the letters and reports pending." She listed all the matters that she wanted from me at that point in time. The message concluded. I received a follow up one which says "If I did not get the Kgomo report today, I will have no option but to request the Acting COO to initiate disciplinary process. The others I want them by tomorrow at 14 hours, if nothing is delivered, I will also take action."

Adv Mayosi: You say you experienced this as the PP’s rigidity during a traumatic period in your life?

Ms Mogaladi: It's true, it's true. Especially that my first message that went to the PP, went at length I disclosed the medical information. The nature of the diagnosis that pointed towards this being something that she had not been seeing, I think my last conversation with her was the Friday. Before she was fine. She was running a workshop from Gauteng so in my message, I was explaining to the PP, and I went at length to disclose because I wanted to be open and transparent with the PP so that she can understand what I was going through. As I had mentioned, although she was my niece, this is someone that was more like a sister. She was, I was close to her. So I felt that I needed to disclose, and I think also importantly, when I got the PP’s message it was on a Thursday, I was planning to drive back to Polokwane because the funeral was supposed to be that Saturday.

Adv Mayosi: Then in your affidavit you mention another incident and you say this related to the late Mr Abongile Madiba. Can you elaborate on that?

Ms Mogaladi: The late Mr Abongile Madiba was one of the hardworking, diligent and skilled investigators in this Office. I think he joined the Office just after me, I think he had over 15 years in the Office. He dealt with some of the very difficult and complex matters and most of his cases withstood judicial scrutiny. Towards the end of 2016, he had completed and issued a report on one of the very difficult matters that we were dealing with at the time. And a few days, if not two days, after that he suffered stroke. And he was then partially disabled; he couldn't use the left side of his body. I really felt the ongoing demand from the PP and the rigidity towards Madiba even though it was well known in the organisation that Madiba was really struggling with his health. For instance, if he was expected to type reports, he was only using one hand, if he had to page through evidence, there must always be someone, one of the investigators had to sit with him to support him to page the documents. So I really felt that the pressure that was being put on my team was insensitive. If anything I felt that, as someone who had diligently served the Office, there was no sympathy on the part of the Office at the time. And especially when it came to charging Mr Madiba. He struggled to come to terms, he was really struggling. And probably, that's why he couldn't even take the issue of the dismissal throughout as we're going through the suspension. He kept on, his greatest fear was losing his job, because he really felt that he would not be able to afford medical attention that he required as a result of his condition. So he passed on, unfortunately, a month after the hearing. And from my interactions with her, even after the dismissal, he passed a very sad and broken man. And I indicate that in my view, no support or sympathy was shown towards Madiba. He was too sick to depend on himself. And for him to go through the hearing, he had to rely on his son for support. Because he couldn't really, to prepare the volumes and volumes of evidence, he always needed someone to assist him.

Adv Mayosi: So in the next section of your affidavit, you deal very briefly with other investigations that you were involved in, or took part in, in your acting capacity in GGI. In relation to the Bosasa investigation, you say that you accompanied the PP and others to a meeting with the President and also dealt with some correspondence and were present at some of the meetings, was that all your involvement in that investigation?

Ms Mogaladi: Yes, in the Bosasa investigation, I accompanied the PP to the meeting with the President, but it was at the earliest stages of the investigation. I also participated and sat in some of the subpoena hearings with some of the witnesses. But towards…from March onwards, I was no longer actively involved in the matter. The investigators were submitting directly to the PP and were working directly with PP on the Bosasa investigation.

Adv Mayosi: You also say in the pensions investigation involving Mr Pillay, you were part of the meeting with Minister Gordhan in early 2019. You mentioned that you will be able to elaborate on the extent of your involvement in evidence. What is it you want to elaborate on?

Ms Mogaladi: On this particular matter, after the investigator drafted the section 7(9) notice, the CEO then being Ms Baloyi, convened a quality assurance meeting. There as the investigation team, we reviewed the draft section 7(9) notice with the investigators just to ensure that it was quality. It was reviewed to ensure quality, so I was part of that meeting and I participated during the discussion of the draft section 7(9) notice on the Pillay pension matter.

Adv Mayosi: And can you tell the Committee about your involvement in the SARS unit investigation?

Ms Mogaladi: The SARS unit investigation was handled by Mr Rodney Mataboge, who was the chief investigator that reported to me. He was working on that investigation with Ms Bianca Mvuyana, who's an investigator in the Office. When I joined GGI this investigation was ongoing. I had involvement in this investigation at the beginning. According to my recollection, I was involved on the matter until mid Feb, towards the end of Feb. As I mentioned, it's one of those that I found there. It was already being investigated by the team when I joined GGI. And as from 1 June a decision was taken that Mataboge and his team would no longer be reporting to me. I also attended the meeting with the IGI on 31 January, it was a meeting that was convened by the Public Protector. I was part of the delegation from PPSA during that meeting.

Adv Mayosi: You also make mention in paragraph 141, that you met with a complainant in this matter, in December. Can you tell the Committee about that, please?

Ms Mogaladi: Yes. After taking over GGI I think it was around the end of November, I was approached by the team with a submission. The initial submission was directed to the PP where it had indicated that the complainant wanted to meet with the team to come and hand over the evidence. But I was informed that the PP was not available, and the team was requesting, and they indicated that the PP’s PA had informed them that I should chair the meeting with the complainant. And so I met with the complainant based on that. From my recollection of that meeting, I was with Mr Mataboge; I tried to locate the recording so that I can speak with certainty around the attendees of that particular meeting. I struggled to get those recordings because we normally record our meetings, but I couldn't get the recordings. During that meeting, the complainant sent me a copy of a report which I think was a part of the evidence that the complainant indicated he wanted to hand over and later on this report was sent to me by email. Later on, when I opened the document, I looked at the first few pages based on the heading. I thought it was an SSA report because of the heading and I never really looked beyond that because it was written Secret on top. So I never went beyond to read the remainder of the document and neither did I disseminate or even print or do anything with the particular report. I just closed it and never got back to it actually. I did not even recall because this was some time ago. I was reminded by the evidence leaders that they came across evidence that I have received this particular report and I went back to my emails, and I confirmed that I received the report, but I didn't do anything about it. As part of the investigation at the initial stages, I was also included in some of the emails following the meeting that we had with the IGI. And there was also some exchange of correspondence between the Office and the Minister of State Security relating to possession of the classified IGI report. In one of the email, the PP was instructing Legal Services to draft a letter to the Minister disclosing the names of the people, as stated in there. Then I think as I was preparing, I noted that there was another email whereby the PP indicated that the name of Mr Mataboge must be retracted from the names. It must be deleted from the names of the people who were in possession of the classified IGI report as per that letter that was sent to the Minister. It would be everyone in there, excluding Mr Mataboge, according to the later email that was sent out by the PP.

Chairperson: Sorry, the last part? Hon Gondwe says she didn't hear you.

Ms Mogaladi: I'm saying, following this email. As I was preparing, I'm going through some of my emails, I later realised that following this particular email, there was another email from PP. Where PP was correcting and sending a message to the Senior Manager: Legal Services, correcting that Mr Mataboge was not in possession of the classified report. So I'm saying, I'm correcting there and taking out his name from the list because there was a retraction and correction to take out his name.

Chairperson: Adv Mayosi?

Adv Mayosi: You were copied in this email that is dated 20 February 2019. Do you see that?

Ms Mogaladi: Yes, correct.

Adv Mayosi: Can you explain to the Committee what this email arose from?

Ms Mogaladi: This email as I have stated, it arose from the communication between the PP and the Minister of SSA relating to possession of the IGI report. So this was based on the discussion because the Minister had responded back to the PP on a letter, if not subpoena, if I recall correctly, that was issued against the Minister. So in there the PP indicated that Legal Services can get a legal opinion from senior counsel and she went on to elaborate there. And relevant to me, there was a question at the bottom where PP says, "Pona, you have top secret security clearance, right."

Adv Mayosi: This is the email communication you mentioned in paragraph 144 of your affidavit, where you say you understood from this email that other people who had access to the report were Rodney [Mataboge], the Chief of Staff, PA and the PP, correct?

Ms Mogaladi: Yes, and later on PP retracted the name of Mr Mataboge.

Adv Mayosi: So just for the sake of completion, what was your security clearance?

Ms Mogaladi: I have top secret security clearance that was granted in 2017. It was the second one, the first one that I had was in 2011. It expired and another one was issued again in 2017.

Adv Mayosi: You mentioned earlier when you were talking about your involvement in the SARS investigation that Mr Mataboge and Ms Mvuyana were not really reporting to you about this investigation. Were they reporting to the PP directly to your knowledge?

Ms Mogaladi: Yes, according to my knowledge. They reported to me at the beginning of the investigation, but as the investigation progressed, they were reporting directly to the PP.

Adv Mayosi: Were you ever given the IGI report by the PP?

Ms Mogaladi: No.

Adv Mayosi: I don't have further questions for this witness, Chair. And Chair, I have kept to the time

Chairperson: You had no choice. Thank you for keeping to three o'clock. Thank you, Adv Mayosi. It's exactly three o'clock, as promised. Five minutes have been gifted to Adv Mpofu. Thank you. We will now proceed to the next item, which will be the beginning of cross-examination. I now recognise, Adv Mpofu to start cross-examination. Over to you.

Cross-examination by Adv Mpofu

Adv Mpofu: I just want to say to Adv Mayosi that all of us would keep to the time, Chair, if we were given the kinds of generous times that she gets given. But it's easy to meet your target if it's extended.

Chairperson: No, you get yours too.

Adv Mpofu: I never had until two o’clock.

Chairperson: No, you get yours. You will start now until five o'clock and you’ll continue tomorrow.

Adv Mpofu: Yes, I'll continue tomorrow. Chair, I might even finish earlier than that. Let me just, I'm just going to place a few issues on the record. Chair, can I do that? Just place a few issues on the record and explain how I'm going to approach the cross examination. Okay, the first issue is to do with a document which has been sent to us, which is a purported waiver of the confidentiality clause that is contained in the Public Protector Act, which has been issued by the Deputy Public Protector or Acting Public Protector. We just have a view about that which we want to place on the record. For what it's worth, again, for the usual reasons, so that one day, we're not accused of having acquiesced in it. But it might be appropriate. Unfortunately, we had planned to have a discussion on this, myself and Adv Bawa over lunch, and then we just didn't get the time, or we forgot, we discussed other things. So I thought maybe it might be appropriate for her to explain what that document is. And then I will then place on the record what our objection is, thank you. That's what we have arranged.

Adv Bawa: Putting the letter on the screen, I'll put it into context. There is a provision under the Public Protector’s Act section 7(2), which deals with investigations by the Public Protector, and it says notwithstanding anything to the contrary contained in any law, no person shall disclose to any other person the contents of any document in the possession of a member of the Office of the Public Protector, or the record of any evidence given before the Public Protector, the Deputy Public Protector, or a person contemplated in subsection (3)(b) during an investigation unless the Public Protector determines otherwise. Now there's two ways one can look at it. The most obvious one is that you can't do this during an investigation but there may be more leeway after that. But that interpretation in itself may be problematic because certain information is given to you, for example, by people who give it to you under the whistleblower provisions. Alternatively, people who give it to you anonymously for security reasons, etc. and so, there's a proviso in it that says, "unless the Public Protector determines otherwise". Irrespective of the interpretation you want to put to the clause prior thereto. I had a look at it. We consulted with a number of employees at the Public Protector’s Office bound by this provision, who would have to come and give evidence before the enquiry. There's also the question of privilege that lies with the incumbent. I requested that they provide the employees, be it that they come and give evidence for the evidence leaders, or whether they give evidence or whether they’re called by Mr Mpofu, would then be issued with a waiver in order that they not at any point be accused of transgressing section 7(2) of the Act. That was all that it was intended to be. There is a caveat that there are ongoing investigations that should be protected and that we must use our common sense in that regard. It's not intended to attach that to ongoing investigations; there is also a very narrow line between ongoing litigation, and it shouldn't be abused for that purpose before this enquiry either. If Adv Mpofu and I had an opportunity to have that discussion, then I would have certainly indicated to him that it's simply to ensure that within the context of the mandate, that those who give evidence before the enquiry, neither abuse the powers that they are given very widely under the Act, but that they also not be seen to be transgressing that. That's the reason why, at my request, this was granted.

Adv Mpofu: Thanks, Chairperson. The only thing we want to place on the record is that we don't accept that the provisions of the Act can simply be, quote unquote, waived in that fashion. And maybe we'll engage with the evidence leaders as to how that's a real issue that Adv Bawa has raised may be better navigated. And again, just for the record, we align ourselves with the interpretation of the section that says that the phrase ‘during an investigation’ clearly does not mean that the prohibition only applies during an investigation. It obviously applies to any information which was acquired during an investigation. Whether it's 10 years later, it shouldn't matter. So we agree with that interpretation. And that's exactly why we were worried about the terms of the waiver, because it seems to suggest that it makes a distinction between finalised investigations and ongoing investigations. Which is incompetent if you interpret the section broadly, which is what we prefer. So that's the issue, Chair. We just wanted to place on the record about the so-called waiver. And as I say, we'll try and cooperate with the evidence leaders to deal with that issue because it will obviously also affect some of our witnesses.

Chairperson: Just before you proceed to whatever next issue you have. There's a question that both of you are not answering – why are you raising this thing now? Does this have to do with this witness? I will have to make a ruling, either now or anytime, that we determine so both of you are not addressing that. You seem to be and I'm interested to understand why the issue’s raised. So what is your expectation?

Adv Bawa: I don't think there's an expectation other than the following. Adv Mpofu had reservations about the waiver. He was kind enough not to interrupt the evidence being led by Adv Mayosi because he had walked in this morning when we had really started.

Chairperson: I don't get the part that he was kind enough not to interrupt because what has that to do with the witness?

Adv Bawa: Sorry, Chair. This witness has a waiver. That's maybe what we should have started with. And subsequent witnesses who are currently in the employ of the Public Protector’s Office, whether they are called by us or whether they called by Adv Mpofu, will be afforded a waiver. And there were concerns about the waiver being granted and Adv Mpofu wanted to place that on record. But he didn't regard it as being of such a nature that it warranted interrupting Adv Mayosi. So he said to me he would place it on the record before he cross-examined, instead of his usual morning placing on record. He’s doing it now instead of then.

Adv Mpofu: Chair, if I may assist? I think the short answer to your question, why now is simply because the letter that I've referred to, which comes from the Acting Public Protector is addressed to this witness, as was explained, and it's the first one, it's obviously meant to be the first one of its kind, but it's addressed to her. So it applies to this evidence, and that's why we're raising it now.

Chairperson: Okay, I hope Members follow, but maybe at this point, as you proceed to your other issues and cross-examination, I would indicate that we will apply our mind on the issue and will make a determination. You may proceed to the other issues.

Adv Mpofu: Thank you very much, Chair. Then the next issue is we had an agreement with the evidence leaders, let me say an arrangement, because for it to be an agreement, it's your show, Chair. I don’t think we’re allowed to have agreements here. That arrangement was that this witness was scheduled for a period of two days, which is what you've indicated. And the arrangement we had had, because of the span of this witness's evidence was that I will do my cross-examination tomorrow. There's a whole set of documents, some of which we have just presented or supplied to the evidence leaders. It may or may not evoke one or two questions before we start, I doubt that it will. It's just documents that we want to put on the record. So that is one of the reasons. But I'm asking, ordinarily, I'd be asking for permission to break now so that I start my cross-examination tomorrow, having covered all those things, but as I indicated over lunch with the evidence leaders, if you even if grant me that indulgence, can I ask for another indulgence? Which is that I cover some of the ground, some of the high-level issues with the witness, because it may save us a lot of time, and also focus the areas that I'm going to deal with tomorrow, rather than wasting time tomorrow with the material which might not be necessary. Yes, that's what I wanted to request, Chair.

Chairperson Yes, definitely we have time now. We'll allow you to get your partial start. You're looking for a starter course instead of a main meal. Go for it. It will save us time.

Adv Mpofu: Certainly would. Thanks, Chair. I thought Hon Gondwe wanted to raise something?

Chairperson: Just before you proceed. Hon Gondwe.

Dr M Gondwe (DA): Chair, you’ve lost us. We’re not entirely sure which letter was being referred to that had been written to Ms Mogaladi. If you could just bring us up to speed because I was completely lost. I don't know if I'm the only one who doesn't know about the letter.

Chairperson: You mean the document they were referring to?

Dr Gondwe: Yes, apparently there's a letter that's been written by the Acting Public Protector to Ms Mogaladi. So I wanted context around the letter.

Chairperson: Okay, let's hear the evidence later.

Adv Mpofu: I've just asked Adv Bawa to put it up. I think it will make it easier.

Adv Bawa: As you will see the letter is addressed to Ms Mogaladi. If you could go down, the context of the letter is current employees giving evidence before the enquiry, and paragraph two is probably the relevant section. As I indicated earlier on, section 7(2) imposes confidentiality requirements, with a caveat that says "unless the Public Protector determines otherwise", and so to this end, authority is granted to you in terms of section 7(2). For the disclosure of the contents of any document in possession of a member of the Office of the Public Protector, or the record of any evidence given before the Public Protector, the Deputy Public Protector or a person contemplated in subsection (3)(b) of the Act, which would be its employees and investigators, during any finalised investigation that you may be involved in, in your capacity as the Executive Manager: Investigations – that's in Ms Mogaladi’s case – it may be required as material evidence relevant to the aforementioned motion before the Committee. So what it doesn't contemplate is finalised investigations. It doesn't allow them to speak on matters which are currently pending. Public Protector reserves the right, on a case-by-case basis, to review the resolutions in respect to individual matters where such disclosure may adversely affect the vested rights of individuals or institutions. One could see that from the affidavits that are prepared and if they have any concerns they must raise it. And that authority will lapse on the conclusion of these proceedings.

Chairperson: Hon Herron.

Mr B Herron (GOOD): Thank you, Chair. It just raises other questions about whether the previous witnesses who are currently employed by the Public Protector, whether they also had a waiver.

Adv Bawa: The previous witnesses don’t get involved in investigations; they are…

Mr Herron: And Mr Samuel?

Adv Bawa: Mr Samuel? Yes, let me qualify that. Mr Samuel requested a waiver and I think it was granted – whether he had the letter by that time, I'm not entirely sure. But there was, I did have a conversation with Mr Samuel. Let me double check on that. But I did request the waiver. In fact, the subject came up in the context of Mr Samuel, when I had that conversation. I was reminded by Ms Mogaladi on Friday about the waiver. But I did have a conversation with the PP’s Office about it in the context of Mr Samuel. I was given the assurance that he would have the waiver, but I can't say that I saw the letter. I didn't request it in respect of Mr Tebele and Mr Tyelela, because I didn't understand them to be involved in investigations.

Adv Mpofu: Chair, if I may just round off. Hon Herron has raised an important issue. I think, again, it will form part of whatever discussions we'll have with evidence leaders. It was not just Mr Samuel who was involved in investigations, definitely not. Definitely not Tyelela but Kekana, Raedani, Ndou, Tebele. Some of the previous witnesses that would be covered by Hon Herron’s question. So I think we'll just have to find some legal solution to it. I think, at some stage, just so that we don't run into that legal hurdle.

Chairperson: You can't go to a legal solution when there's no clarity upfront. There must be that first and then you can talk about that.

Adv Mpofu: No, Chair I agree. And all I'm saying is that I'm glad that we're discussing this because now we've got it in an even wider ambit. But surely we can’t discuss it here now and have a nice legal debate.

Chairperson: Thank you. Thank you, Adv Mpofu. Are you done, Adv Bawa?

Adv Bawa: I think instead of wasting the Committee's time, let me and Adv Mpofu sort it out. I must say you're right, I didn't contemplate that in relation to employees who had left [the Office] but there may well be a reason that we do that, for their protection as well. But it came up in the context of existing employees involved in investigations, which was the context in which I had raised it. It must be something that Adv Mpofu and I can sort that.

Chairperson: Adv Mpofu, can you please proceed with your cross-examination?

Adv Mpofu: Yes. Thank you, Chairperson. Good afternoon, Ms Mogaladi.

Ms Mogaladi: Good afternoon, Adv Mpofu.

Adv Mpofu: Thank you, ma’am. You heard that discussion I had with the Chair? I'm going to ask you more detailed questions tomorrow morning. But I just wanted us to cover some high-level areas, which might cut down literally some hours from the cross-examination, depending on your answers to those issues. You understand, ma'am?

Ms Mogaladi: Yes, I do.

Adv Mpofu: Thank you. Okay. Maybe just for context and at the risk of sounding like a broken record, I've been trying to say that we don't want to turn this Committee into the complaints office of the Public Protector South Africa or a branch of the CCMA or the Labour Court, even. So we try not to get involved in the nitty gritty of the labour dispute themselves, but only insofar as they may be relevant to the motion, you understand that distinction? You are a legally trained person, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Yes, so you understand what I've just said?

Ms Mogaladi: I think I do but you can clarify further so that…

Adv Mpofu: Yes, I can clarify. What I'm saying is that we don't want a situation where the merits or demerits of the legal and labour disputes that feature from witnesses like you, be presented as if this Committee's job, for example, is to find who's right, who's wrong on the merits. By saying that we're not saying that some of those issues might not be relevant to the motion. We only deal with them insofar as they're relevant to the motion before this Committee, you understand? Without expecting this Committee to express a view on the merits? Well, they will if they want to, but that's not what they should do. You understand?

Ms Mogaladi: I understand. Yes.

Adv Mpofu: Thank you, ma'am. Now the first issue therefore, that I want to clarify with you, and this one literally as I say might cut down a lot of my cross-examination tomorrow, is this. Do I understand correctly that in respect of your labour matter, which resulted in the suspension and the Labour Court dispute and all that, your case has only been centred around the question of sanction? In other words, that whole dispute as to whether the Public Protector is entitled, empowered, call it what you will, to alter the recommendation or finding of the DC chairperson, Adv Khuboni. Do you understand the question?

Ms Mogaladi: Can you repeat the question so that I do understand?

Adv Mpofu: Right. I won’t repeat the commentary part because I was just identifying which dispute I was talking about. The real question, crisply put is, am I correct to assume that your gripe or dispute regarding that issue was only confined to the issue of sanction? In other words, whether the PP was entitled to alter the sanction?

Ms Mogaladi: Just to clarify, are you referring to the Labour Court judgment?

Adv Mpofu: Yes, the Labour Court dispute. The one that resulted in suspension and litigation. Yes.

Ms Mogaladi: Yes, the Labour Court matter that resulted in the judgment of 28 May was focused on the sanction.

Adv Mpofu: Right. You also, in the build up before you even went to the Labour Court, you made some submissions to the chairperson of the DC, regarding the sanction, you know the normal mitigation of sanction type of evidence. You led such evidence, correct?

Ms Mogaladi: Correct.

Adv Mpofu: You effectively have never taken issue with the finding itself, with the finding of guilt, but you've taken issue with the dismissal, alleged dismissal or intended dismissal, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Okay. Thank you very much. Okay. That will assist us quite a lot, because that's what I’m avoiding having to get into the whys and wherefores of the actual finding of guilt if the only gripe was about the sanction. All right, thank you, ma'am. Then the next issue that I want us to canvass is just a question of timing. Just for your information, I'm sure you don't know this, because you're not as intimately involved with this matter as the people who are directly involved. But just for your information, the motion that is before this Committee was passed in round about February 2020. Okay. And the report of the Independent Panel was issued in February 2021. Understand that?

Ms Mogaladi: I follow.

Adv Mpofu: So again, I just want to situate some of the events that you have testified about would have happened after both the motion and the Independent Panel report. For example, the sanction both by the chairperson and the intended sanction, as I call it, by the Public Protector, would have happened in March 2021. After both of those events, are we together?

Ms Mogaladi: Yes, the sanction happened afterwards. But the disciplinary happened prior to that period.

Adv Mpofu: Okay, good. Yes. The actual DC sitting was before, but the sanction and the Labour Court litigation and all that happened afterwards, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Thank you. Alright, we'll come back to that again tomorrow. Then on another topic, am I right that the gist of the charges against you for which you were found guilty, which we've now discussed, which was not part of your legal contest, centred around gross negligence or allegations, let me put it that way, of gross negligence and misconduct? With sub charges, as you said, but that really was the gist of what you were being accused of, correct?

Ms Mogaladi: Correct.

Adv Mpofu: And so effectively, what you were contesting then is that somebody at a level which is very, very senior who is found guilty of gross negligence and misconduct should not be dismissed but must simply be suspended for a couple of months, that's the gist of your case? I know I'm simplifying it. But am I more or less correct that that's what you took to court?

Ms Mogaladi: No, you are not correct advocate. What we took to court was that the Public Protector should comply with the internal policy.

Adv Mpofu: Yes, fair enough. Sorry, ma’am?

Ms Mogaladi: The issue that we took to court was that the Public Protector should comply with the PPSA disciplinary code.

Adv Mpofu: Yes, by making sure that what she was intending to do, which was to mete out a dismissal is not done, correct?

Ms Mogaladi: No, the correct provision in the court and the main source of our dispute was that the Public Protector appointed an independent chairperson. In terms of the policy, the chairperson submits a report, a final report to the Public Protector for implementation. We were saying to the Public Protector, you have received a report of the chairperson, implement it and not change it. If you are unhappy with it, as the Labour Court in the judgment said, then you can take it on review. But you appointed the chairperson and comply with your own internal policy.

Adv Mpofu: Yes, no, ma'am. I think maybe we're not understanding each other. I accept what you're saying. I'm making a different point. That might have been what you were putting in your papers, but your real intention was to stop her from meting out a dismissal. Let me put it this way and may be if you can give me an honest answer to this question. You know that the chairperson said he was making a recommendation, correct?

Ms Mogaladi: I noted that, that he said he was making a recommendation.

Adv Mpofu: Right. He did. Now the chairperson said you should be on unpaid suspension for three months, correct?

Ms Mogaladi: Yes, correct.

Adv Mpofu: Yes. So if you give me an answer to this question: If the Public Protector has said, I'm looking at this, the chairperson says Ms Mogaladi should be on suspension for three months unpaid but I don't accept this recommendation, I think she should just be on unpaid leave for one month. I'm sure you would not have taken that to the Labour Court, correct?

Ms Mogaladi: Adv Mpofu, I think what is key is that the Constitution guarantees everyone fair labour practice. The gist of the Labour Court matter was to make sure that we are treated fairly. If the Public Protector had decided to give us that one month, it would have been something that we consider, but it doesn't take away from the fact that the policy says that the chairperson is submitting the decision for implementation. If the Public Protector decided to change that, that would have been the decision. All that we wanted was to be fair, comply with the code.

Chairperson: Can I just break for 10 minutes. We'll take a 10 minute tea break. Thank you.


Chairperson: The cross-examination resumes. I hand over to Adv Mpofu.

Adv Mpofu: Thank you, Chairperson. Yes, ma'am. I was saying that I think you've got the gist of what I was saying. I was saying I accept that technically – at a technical level or at a legal level – what you were challenging was the deviation from the recommendation of the DC chairperson. But I was trying to illustrate that your real intention, and you I think you've answered part of the question, was what you call looking for fairness. I was illustrating to you that if the Public Protector had said, I'm not accepting this recommendation, I'm actually removing the entire sanction or I’m reducing it to one month instead of three months. Surely, you must, at a logical level, agree you would not have gone to the Labour Court to challenge her decision?

Ms Mogaladi: Agreed, we went to the Labour Court because the Public Protector was taking an adverse decision that was not in line with the policy.

Adv Mpofu: Ma'am, sorry, can you just repeat that please?

Ms Mogaladi: I am saying we approached the Labour Court because the Public Protector was – actually the letter was very clear that the Public Protector has decided to implement that sanction. So we approached the Labour Code because the Public Protector was taking a decision that was unfair and it was not in line with the disciplinary code.

Adv Mpofu: Okay. Let me try again. Either you don't understand the question, or you don't want to answer it, but I’ll just try again. Even if I accept what you're saying, do you agree with me that had the sanction she was putting been more lenient, you would not have challenged it. Just follow the principle of it?

Ms Mogaladi: Adv Mpofu, my response has been that as an employee, you are concerned about fairness, which is guaranteed to you in terms of the Constitution. If that decision was fair, under the circumstances, probably I would not have challenged it. But I think what is clear is that we shouldn't miss the point and the essence of why we did go to the Labour Court. The reason we went to the Labour Court was to say, fine, you have found us guilty. The policy says you must take the chairperson report and submit it for final implementation to the Public Protector. And we wanted the Labour Court to rule and to adjudicate on that particular point to determine whether we were correct or whether the Public Protector was correct.

Adv Mpofu: You also say that, from a reading and interpretation of her letter, it sounded as if she had already taken a decision. That's another issue you wanted to clarify with the court, correct?

Ms Mogaladi: Correct.

Adv Mpofu: So in the same vein, if she didn't say that. If she said, I've not made any decision at all. I just am contemplating dismissing you and I’m inviting you to make representations why I should not do that. You would not have gone to court?

Ms Mogaladi: But that is not the question in this matter, Adv Mpofu. The facts on this matter is that there was a letter, and we took our decision based on that, on what was presented to us.

Adv Mpofu: Yes. And is there any reason why you did not accept the invitation of the Public Protector to make representations?

Ms Mogaladi: Because it was not in line with the Public Protector disciplinary code. It was not in line with the disciplinary code as approved by the Public Protector.

Adv Mpofu: Yes, but even this is a representation – you could have said exactly what you've just said now in explaining yourself, because you were just being given the right to a hearing. An open ended one. Surely that would have been cheaper than spending money on the Labour Court?

Ms Mogaladi: The main point is that we had to protect our rights as employees. Under the circumstances, we did not agree with the approach that the Public Protector was taking, and the only way that we can enforce our rights as employees was to approach the Labour Court on an urgent basis for a court ruling because we did not agree that what the Public Protector was in line with the policy. So we couldn't make any submissions even to say to the Public Protector, we don't agree with you, because it would undermine in making those submissions. So we approached a forum that would adjudicate on the point on which clearly we were disagreeing with the Public Protector.

Adv Mpofu: Yes, ma'am. Okay, I'll move on. But, again, maybe it's either you don't understand or this is another problem? I'm saying.

Ms Mogaladi: I do, I do understand.

Adv Mpofu: Okay, let me just unpack it. I agree with you that you wanted to enforce your rights, and it's a free country. You can enforce your rights in whatever manner you like. All I'm exploring with you is the following. Remember when she was giving you the right to make representation? That's also a right, a constitutional right, understand? Audi is a right in its own right, correct?

Ms Mogaladi: An audi is a right, you are correct, but every action is subject to limitations. In this instance, the limitation was coming from the disciplinary code. Whether the Public Protector was entitled to issue that audi has to be interpreted within the confines of the disciplinary code. It cannot come from any other prescript because the disciplinary code was there to regulate the manner in which the employer meted out discipline to employees.

Adv Mpofu: Last attempt. I'm saying that, if she was giving you a right, which you could exercise by simply writing a letter to her. Surely at a logical level, that's easier. That's an easier way to exercise that right, than exercising the same rights by going to a court and paying lawyers and all sorts of things when you've already been granted a free right if you like, to make representations. You understand?

Ms Mogaladi: No, that right, it was illegal. It was not in line with the Public Protector Act so you cannot call it a right as far as I'm concerned. The Public Protector might have seen it as a right but as far as we're concerned as the employee, it cannot be a right that is not in line with the policy, especially that it was subjecting us to a process that is unfair.

Adv Mpofu: Okay, Now you know the Public Protector. Before we even go there, the other thing that I will explore with you tomorrow is something which was raised in this Committee on day one by Hon Hendricks. And I think you are the ideal witness for us to explore that angle. Namely, to what extent, as we hold the Public Protector accountable, to what extent do we also hold the people who report to her accountable? You accept that constitutionally the Public Protector is accountable to Parliament, but you, and when I say you I don't mean just you individually, you as the people who report to her and the people who report to you must also be held accountable and maybe responsible for your own actions and misdemeanours, correct?

Ms Mogaladi: Correct.

Adv Mpofu: And it wouldn't be completely fair to visit her with the consequences of your misconduct for example, correct?

Ms Mogaladi: Look, that is a question that is dependent on the circumstances.

Chairperson: Can you repeat that?

Ms Mogaladi: That is a question that is dependent on the circumstances of each case. More in particular, who was the decision maker because, within the space in the Public Protector, each one of us have different responsibilities. And so it will be dependent on who made the decision under the circumstances.

Adv Mpofu: Yes. No, I understand that and by saying what I'm saying I'm not absolving the Public Protector. The proverbial buck stops with her. I'm simply saying or testing whether people like you who fall into the next layer would be prepared to take your share of the responsibility where the blame lies with you.

Ms Mogaladi: Earlier on when introduced I said it is clear that I have to be held accountable. I cannot shy away from being held accountable for my conduct, but fairness has to prevail. You have to take into consideration the entire circumstances that prevailed and I believe that the Public Protector is also equally afforded that opportunity. The reason we are here is to afford the Public Protector that same process of fairness and determine her accountability under the circumstances. So I am saying there's nothing wrong with me being held accountable but the overall circumstances that prevailed need to be taken into consideration.

Chairperson: Just pause. Ms Mogaladi, just try again. Come closer to your PC laptop. We don't want to miss anything you say. We really want to get everything you say so sometimes there’s a break up and we catch up, we catch you up later. We don't know whether the problem is with you or here in our system, but we are trying to figure it out.

Ms Mogaladi: Chairperson, can I request a five-minute break to request our IT to adjust the laptop. During the break were requested to reduce the volume to adjust it to reduce the volume. Can I call him back to readjust?

Chairperson: We’ll do that, Adv Mpofu.

Adv Mpofu: Yes, that fine. I'm only left with a few minutes anyway.

Chairperson: No, it's fine. We'll give you that five minutes break. Just attend to it. Thank you.

Chairperson: I hear you much clearer. Thank you very much. We’ll proceed. Adv Mpofu.

Adv Mpofu: Thank you. Thank you, Chair. Yes. Okay, just to round off a few more of those high-level issues. How long have you been at PPSA?

Ms Mogaladi: In December, it will be 22 years. So 21 years. Yes.

Adv Mpofu: Okay. So someone like you and Mr Ndou would have been some of the most senior and experienced persons who can assist the Committee, as I say, with the wider issues, correct?

Ms Mogaladi: Yes.

Adv Mpofu: He has already done that, and we will also deal with those kinds of aspects with you. This just comes from your vast experience in the institution. In fact, you have previously applied for the position of CEO, correct?

Ms Mogaladi: In the Public Protector?

Adv Mpofu: Yes.

Ms Mogaladi: No, I don't recall ever applying for the post of CEO.

Adv Mpofu: Oh, because that's what Mr Ndou told us. What did you apply for? Maybe he was mistaking the positions?

Ms Mogaladi: I applied for the position of the COO and later withdrew my application.

Adv Mpofu: Maybe he was making a mistake, or I misheard him. You've applied for the position of COO before?

Ms Mogaladi: Yes.

Adv Mpofu: Okay. You were obviously unsuccessful?

Ms Mogaladi: No, I withdrew my application.

Adv Mpofu: But it didn't go as far as the interview?

Ms Mogaladi: Yes.

Adv Mpofu: No, I'm just saying that from the point of view of just showing how senior you are in the organisation. Alright. And do I understand correctly that this acting role of the two divisions was discussed between you and the CEO, Mr Mahlangu?

Ms Mogaladi: Correct.

Adv Mpofu: And you reached an agreement that you would do it, because I see the Public Protector’s letter, in respect of that says, it is with pleasure that I approve your appointment. In other words, it was agreed between you and Mr Mahlangu and the Public Protector, then approved. Is that your understanding as well?

Ms Mogaladi: No, I cannot really say that. Mr Mahlangu came to me with a letter. With regards to the approvals, it is a process that the organisation can clarify. But my experience is that firstly, before that, it would be preceded by a proposal to the Public Protector regarding that decision. So I can only confirm once I've seen that submission. I cannot confirm that. My discussion with…or the letter preceded the submission to the Public Protector?

Adv Mpofu: Yes, no, ma'am. I'm not asking this. Because I know what happened. I just want you to assist us. I'm saying from where I'm sitting. When I read the Public Protector saying, 'I hereby approve', then it means that, as you correctly say there was a proposal put to her. And when you, to my previous question, answered, 'yes, you had discussed it to the CEO' then that's what it means. All I'm asking you is whether that discussion you had with CEO had preceded or succeeded the letter?

Ms Mogaladi: I don't know.

Adv Mpofu: So it's possible that it might have preceded it? In other words, it's possible that he might have discussed it with you and then approached the PP, or the opposite?

Ms Mogaladi: I don't know but it seems unlikely.

Adv Mpofu: Which one? I’ve just asked you two things. Which one is unlikely?

Ms Mogaladi: I'm saying I don't know. But based on the practice in the Office, it is unlikely that the submission preceded our discussion. I think only Mr Mahlangu and the Public Protector can clarify. But as far as I know when I had engagements with Mr Mahlangu, I'm saying based on my experience in the organisation, the letter cannot precede the submission, but only the Public Protector and Mr Mahlangu can clarify that sequence.

Adv Mpofu: Alright. Then, I think the last of these broad topics that I want, oh no, it's not the last one. Let's just go back quickly to the gross negligence and misconduct issue. So I was saying to you, we just got drawn out into the technicalities of the labour case. The essence of your case and let me tell you why I'm asking you this question. The Public Protector is charged here with exactly basically the same things that you were charged, namely, gross negligence and misconduct. That's the definition in the rules of Parliament, which constitutes an impeachable offence. You may or may not know that, but do you understand it?

Ms Mogaladi: No, I cannot comment on that. I haven't really compared between the two documents. I can only comment once I have done a proper comparison.

Adv Mpofu: No, ma’am. I'm not asking you for comment. I'm telling you something, which maybe you don't know. You can say you knew it before, or you’ve only known it now because I'm telling you. I'm not asking you for a comment. I'm saying, do you understand what I'm saying that the misconduct before this Committee is defined in the same way as it was in your case? In other words, it is defined to mean gross negligence or misconduct. Which is exactly what you were charged with. Do you understand that similarity? Not to comment.

Ms Mogaladi: No, Mr Mpofu. I note your comment. But I cannot commit myself to something that I don't know, I haven't really looked at. I note your point. I note that.

Adv Mpofu: No, that's fine. That's fine.

Chairperson: Except that, Adv Mpofu, that gross misconduct would apply to judges in terms of the Constitution. Here it is purely misconduct and incompetence, for this Committee.

Adv Mpofu: No, that’s not true, Chair.

Chairperson: It is.

Adv Mpofu: After this you must go and check the definition of misconduct in this Committee. It says gross negligence or misconduct, actually its grammatically wrong it says grossly negligent. But that's another story.

Chairperson: And intentional.

Adv Mpofu: And intentional and so on.

Chairperson: Proceed, proceed.

Adv Mpofu: Okay, that's fine, ma'am. We'll explore that further tomorrow. The only point and you may or may not comment, if you like. Is that the, no, it's fine. You've already commented on that. The point I was making that the essence of your case was that in your case, the gross negligence or gross misconduct would be punishable by something other than a dismissal which is why you went to court but that's fine. We've already had that debate. Then the other topic, which we will cover again tomorrow, and I think this will probably be the most important section of our discussion tomorrow centres around your views about the backlog. I'm just going to test a few propositions with you, and here I'll use my own previous experiences as a CEO because I suspect I was more of a slave driver than the Public Protector is cracked up to be. But you accept that in terms of performance management, while the head of the institution or whoever is at the summit of the institution, as you and I have agreed, must be held accountable for the delivery of that institution. Literally, what is really meant is that that person must hold their subordinates accountable. Do you agree on that as a broad statement, in other words, if you're running an institution with branches all over the show, it doesn't mean that you may never have visited the branch in the Free State, Mpumalanga or whatever. But all those people, their actions, eventually, you are going to be held accountable for them. For example, if you had gotten the job as a COO, that's what it would have meant. You would have been responsible for the operations of the Public Protector everywhere in the country, correct?

Ms Mogaladi: Agreed. Correct.

Adv Mpofu: Good. So again, it goes to this thing, if something goes wrong, obviously, we have to blame the CEO or Public Protector or the Minister or the President or whatever. But that person is really performing through the Cabinet, the Exco or whatever structure that they lead, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Right. And one of their key functions – and that's why we hold them accountable – one of their key functions is to make sure that those other people, whether they're cabinet ministers or whatever, have performance indicators which they must carry out, otherwise that person will be correctly blamed for non delivery themselves, correct?

Ms Mogaladi: Correct. Can I just mention something, Adv Mpofu? I am agreeing that you are correct on high level. But I think it's important to point out that wherever, let’s say if we take the example that you are making, it's got its own limitations and its own confines in which it must be carried out. It cannot just be something that is blanket to say, for instance, if you hold me accountable and you set targets for me, if we take performance management, it has to comply with certain principles. One of those being that it must be achievable, and it must be realistic. So I am agreeing to that subject on a high level.

Adv Mpofu: No, absolutely. No. We are together then. I accept that qualification. All I was saying is that, let's put it this way. You as the executive manager of GGI, or whatever acronym. You accounted to the Public Protector or to the CEO, correct?

Ms Mogaladi: I had the dual reporting. I accounted directly to the COO, and the COO to the Public Protector. So I wouldn't really say that directly I was accounting to the Public Protector.

Adv Mpofu: It's the so-called dotted line responsibility. Your solid line was the COO, but you had a dotted line to the PP, correct?

Ms Mogaladi: I don't agree that there was a dotted line. Everything that I do, I had to report it through the COO. It was a solid line. The COO was the one who was reporting to the PP. But in my case my reporting is to the COO.

Adv Mpofu: Only through the solid line okay, fine. No, that's fine. All right.

Chairperson: Thank you, we’re back again. Ms Mogaladi?

Ms Mogaladi: Chairperson.

Chairperson: Thank you, Adv Mpofu. Over to you.

Adv Mpofu: In one of your answers to Adv Mayosi, you confirm that you had 21 senior people, some of them, investigators, other senior investigators, and investigators who were reporting to you. Am I right?

Ms Mogaladi: I missed the first part of the question, can you repeat?

Adv Mpofu: Okay, I'll speak louder. I was saying when you got cut off, I was asking you the question, to confirm an answer you gave to Adv Mayosi. That at some stage you had about 21 senior people reporting to you, including chief investigators, senior investigators and investigators. Did I get that right?

Ms Mogaladi: Maybe if you can clarify the question because we pointed out to the structures of the two branches. There was a structure for a AJSD and the structure for GGI. If you can clarify for which, which of the two units and there was also a breakdown between the different levels in the document.

Adv Mpofu: When Adv Mayosi took you to page 3884. The people who reported to you. She then put a question to you to say that is a complement of about 21 people, plus minus, who reported to you, and you said yes. That's all. I was just confirming that answer, okay?

Ms Mogaladi: I don't recall mentioning 21 specifically, because the reason I'm saying Adv Mayosi asked me two questions – so I think if it can be clear as to between the two.

Adv Mpofu: No, no, that's fine. As I said, you answered it very easily when it was put to you. But it's not even about the number. Forget the number. I'm saying that structure that is there. There's an indication that you had a number, more than a dozen people reporting to you. Including senior investigators and investigators, assistant investigators, let's leave out the secretaries for now. And on the one side, it's 10. On the other side, it's about eight. So let's say 18 of those senior people investigators were reporting to you, correct?

Ms Mogaladi: Correct. 20 if you add the two chief investigators. But I need to clarify that in terms of the hierarchy, the two chief investigators would be the ones that are reporting directly to me, and the levels will go down with the seniors reporting directly to the chief, but I was responsible and accountable for the entire component.

Adv Mpofu: Okay, so whatever the number, the point I really wanted to make was when you were being performance managed yourself, the reality is that you then had a responsibility to manage the performance of those people 15, 18, whatever the number is. In other words, your performance is really being judged by how much you crack the whip on them. In other words, if you don't manage their performance, then obviously your performance will suffer, correct?

Ms Mogaladi: Instead of ‘crack the whip’, I would rather say manage their performance. Not ‘crack the whip’.

Adv Mpofu: Call it whatever you want.

Ms Mogaladi: Managed, yes.

Adv Mpofu: Agreed?

Ms Mogaladi: Agreed.

Adv Mpofu: And that's the image I'm trying to paint here. It cascades like that. They also will not be able to account to you with their performance if they don't manage properly the performance of those who report to them, and so on and so on, correct?

Ms Mogaladi: Correct.

Adv Mpofu: So what we can do then is, it's really the same chain. So if you use that image, above it, you can just draw another line and put the COO and then put the Public Protector, that principle will cascade in the same way, right to the person who delivers the mail, correct?

Ms Mogaladi: Correct.

Adv Mpofu: That's how an organisation works, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Thank you. Then you touched on, Chair, I promise this one is really my last one. You touched on some of the issues that you say, and this was very crucial evidence, because I don't think we've zoomed in sufficiently on this. You touched on the issues that you say affect something like the backlog. And this is my categorisation, you then divided them into those issues that are basically under your control and those that are outside of your control. For example, you spoke about service delivery challenges in government, those are issues that might affect the backlog, but they are not in your province to control, correct?

Ms Mogaladi: Correct.

Adv Mpofu: And to that list, one can add a whole lot of issues like that. For example, if there's rising corruption levels in the state generally, that's also an issue that's not in your control. But ultimately, it might affect the backlog or its magnitude, correct?

Ms Mogaladi: Yes, in the sense that we might have an increased number of corruption cases.

Adv Mpofu: Yes. And also I think you touched on this one, but I just want to flesh it out. The complexity of the matters. So it's not a matter of just numbers. I think that's what you were trying to say. I might have two investigations and you have 50. But if mine are complex, are more complex, I may take longer to finish mine. While you take shorter to finish yours, am I right? Is that the kind of sentiment you're expressing?

Ms Mogaladi: Correct.

Adv Mpofu: So for example, let's take the extreme example, the State Capture investigation of the Public Protector probably started in 2015 and it was only finished this year. If you include the Zondo Commission but that's because of the complexity of that particular matter. Whereas another matter might take six months and so on. That's the kind of distinction you were trying to make. That it's not just a matter of numbers, it's also about complexity, correct?

Ms Mogaladi: Correct.

Adv Mpofu: But the one issue which is under you control or which is under the control of the Public Protector, the one variable that you can control is performance of the staff complement of the Office, correct?

Ms Mogaladi: Correct.

Adv Mpofu: And you accept that when you manage performance in that way, the classical way to do it is by setting deadlines. If you have a complex organisation, it will never function unless you have deadlines and timeframes, as it is sometimes called.

Ms Mogaladi: I agree subject to my earlier qualification that they must be realistic, and they must be achievable. Chairperson I can't hear. I don't know if maybe Adv Mpofu has paused or it's my computer?

Chairperson: Can you hear us, Ms Mogaladi?

Ms Mogaladi: I can hear you, Chairperson.

Chairperson: Thank you. We just have about 20 minutes and then we’re done. Adv Mpofu.

Adv Mpofu: Thank you, Chair. I'm sorry about this ma’am. I know it's disturbing your flow. It's also disturbing mine. But hopefully tomorrow when we get to the real thing we'll have sorted all these technical glitches. Now I was saying, I think you agreed with me that the one issue that you can control is performance. And so, I was saying for example…

Ms Mogaladi: Can I clarify something, Chair? I agreed that, yes, performance is within my control and target setting is within my control, but they must be achievable, and they must be realistic, which is very important.

Adv Mpofu: Yes, no. All these other things must be achievable. I was simply saying that in contrast to the factors that you correctly listed, which are social issues such as the levels of corruption, the level of awareness of people about the Office of the Public Protector and so on. But of those variables, which would affect the backlog, the one that is within your control, I don't mean you as a person, I mean you as the Office. The one that is within your control is performance, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Yes. Oh, yes. Then my saying – I think when you got cut off – one of the most important, classical well-known ways in management to achieve such performance is by the imposition of deadlines, timeframes, call it what you will, correct?

Ms Mogaladi: Correct, subject to my qualification. I think I have clearly answered that question and indicated that it is subject to those targets being realistic and achievable. It is important that we agree on the qualification, because I cannot take that one part without the qualification that it must be achievable and realistic.

Adv Mpofu: Yes. Okay. In every answer you give, we will assume that the qualification applies. You don't have to repeat it again. I'm saying as a general statement.

Ms Mogaladi: Chair, I do not agree with the suggestion that I don't have to add the qualification. It's important that; I cannot just respond on the one part. It's important that if I feel that the proposition that is presented or the view that is presented by Adv Mpofu, I agree to it subject to certain qualifications. It's important that I must spell them out.

Adv Mpofu: Yes. Again, I think you're misunderstanding me. I'm not saying you must remove your qualification. I'm actually saying you must edit. I'm just saying that we assume that it is there. Okay. I'm just giving you broad questions. I'm not saying that you must remove it. No, you must put it every time if you want to repeat it verbally, every time, be our guest. But the point I was simply making is that you must accept that we or at least I understand the qualification and take it as a standard. But if you feel like repeating it, that's fine. So the point I'm making is that you can't manage any complex organisation without project management and project management by definition involves timeframes. In other words, let's take every investigation in the Public Protector’s Office as a project in its own right. Now that project to be achieved, that's our management, I’m talking about basic management principles. Not specific. That project for it to be achieved, we must know when it comes. Here's a project it's called the PEU investigation or whatever. And how do we projectise it, we must achieve it in 18 months or 20 months or 100 months. It doesn't matter. But we must have a goal of achieving it and then work backwards as to how we are going to achieve that goal. Isn't that how it works everywhere, not just in the Public Protector’s Office, in any organisation that is driven by deliverables?

Ms Mogaladi: Correct. But time is not the only factor. All the elements of project management, if you use that as an example, have to be in place. So time it's one of those elements that are critical.

Adv Mpofu: Yes, actually, it is the most critical because that's its input and output. The time will just tell you when the project will come. If you're building a house, when are you going to have a house? So, whatever happens in between I agree with you it's important too. But the most critical thing, if I say I want you to build me house, and you say, I'm going to do it in 18 months, then at least I can plan when I'm going to move in. That's the kind of thing I'm talking about. So time is important in that sense of framing the project, correct?

Ms Mogaladi: No, I don't agree that time is the most critical. It is one of the elements, for instance you need to have that balance. I cannot just commit, if you say I must build you a house that you must move into that house within 18 months. Firstly, if I don't have the resources, I would not be able to meet the time. That is why I'm saying you need to maintain a balance between all the other elements of project management. You can't just say, 'I want the house in 18 months' when I do not have the resources to build the house.

Adv Mpofu: Okay, that's my final attempt. I'm saying, given all those things. I say to you, you must deliver the investigation report or the house to me. You're 100%, right. When you give me that estimate, you must factor all sorts of things. It might be the weather, it might rain or whatever. But ultimately, you're going to have a project plan, right?

Ms Mogaladi: Correct.

Adv Mpofu: Thank you. Alright. Now just to go to the other theme that we were talking about. If for example, you had the PEU report. That report took something like four or five years to complete, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Now so let's assume the Public Protector here was being impeached for delivering the PEU report in five years instead of two or three. I'm saying would you, because you were responsible for that report, correct?

Ms Mogaladi: Correct.

Adv Mpofu: And that's really the notion I'm coming towards. So to what extent then, assume there was only one charge here before this Committee, it was the PEU report. To what extent, given the fact that you, Ms Mogaladi, were the person who would have been responsible for the delay of five years. And by that, I just mean in the collective sense that you were the leader. To what extent must we look to you? Yes, of course, we must look to the Public Protector, because she's the boss, quote unquote, but to what extent must look to you as the person who has failed to give her the report in two years, three years, whatever it is?

Ms Mogaladi: You need to look at my role objectively, taking into consideration all the other circumstances that prevailed. The same way as obviously when it comes to the Public Protector, the Committee or whichever structure that would be looking at the conduct or the performance of the Public Protector would look at that matter objectively – taking into consideration the totality of all the circumstances that prevailed.

Adv Mpofu: Correct.

Ms Mogaladi: And fairness being one of the key principles that is taken into consideration.

Adv Mpofu: Good. Fairness involves, if we're now looking to the Public Protector herself, would fairness also involve looking at all the circumstances including the fact that the people who were supposed to give her the PEU report failed her? Would that be one of the circumstances?

Ms Mogaladi: Look, depending on how you want to present that particular PEU report because to be objective and fair, you can't just take that one statement in isolation and say somebody has failed the Public Protector. You need to drill down and look at the circumstances of that particular case. If the target was that the investigation should have been delivered in five years, what prevented that investigation from being delivered in five years? The way I view it is that you can't just decide and say it was Mr or Ms X who failed the Public Protector without looking objectively at the individual circumstances.

Adv Mpofu: Incidentally, why did the PEU report take so long, about five years. Wasn't that a bit of neglect on your part?

Ms Mogaladi: No, the matter was pending in court. I explained when I presented my affidavit. We couldn’t finalise that matter and it was a fact that was well known. It was reported during the Dashboard meetings that the matter was pending. Some of the issues that related to that investigation were pending in court, so there was no neglect on my part. The full judgment on that matter was issued at the end of October, and in December the report was finalised.

Adv Mpofu: And finally, on that subject, you accept that one of the pressure points for an institution such as a Public Protector, is the complaints that get received about non delivery. I'm not talking about the initial complaint of corruption or whatever it is. The complaint by the complainant that I gave you this five years ago and I'm still waiting. How can you take five years just to check whether you know somebody stole my cell phone or whatever the complaint is? That is a major part of the pressure points, which necessitate this backlog management issue, correct? In other words, it's a desire to deliver to the people, the complainants and the public, correct?

Ms Mogaladi: Yes, correct.

Adv Mpofu: All right. Thank you. I think we'll then drill down into some of those themes tomorrow. Thank you, ma'am. Thank you, Chairperson.

Chairperson: Thank you, Adv Mpofu. Thank you, Ms Mogaladi. We’re going to adjourn our meeting for today and we'll continue tomorrow with you. Thank you very much. And thank you to everybody else who's been with us throughout the day. You are well appreciated. I can already see names from our YouTube team. We've got a team following us. Thank you. The meeting is adjourned.

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