PP Inquiry day 25: Ponatshego Mogaladi

Committee on Section 194 Enquiry

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

Video (Part 1)

Video (part 2)

Motion initiating the Enquiry together with supporting evidence

Public Protector’s response to the Motion

Report from the Independent Panel furnished to the NA

Rules of the NA governing removal

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

In this hybrid meeting, the Public Protector’s legal team continued to cross examine Ms Ponatshego Mogaladi and thereafter, Committee members asked questions about her testimony. Ms 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 October 2019 until November 2021. The witness affidavit principally dealt with her role in the Financial Sector Conduct Authority (FSCA) report that was taken on review and declared invalid.

The witness testified that the confidential report into the South African Revenue Service (SARS) ‘Rogue Unit’ investigation by the State Security Agency (SSA) was sent to the Office by complainant and Member of Parliament, Mr Floyd Shivambu, who was in illegal possession of the classified Inspector-General of Intelligence (IGI) report. The document was sent to her via email and WhatsApp with no warning that it was classified, but upon realising this she became concerned about the implications of having the document sent without top security clearance and did not read its contents. She agreed it is unlawful and a criminal offence to disseminate a confidential SSA document. The Public Protector’s version is that the Inspector-General of Intelligence (IGI) report into the SARS unit, on which the PP’s discredited SARS Rogue Unit report was based, was dropped off at the Office by an anonymous whistleblower. Despite having the classified report, the PP failed to provide implicated parties with it and left it out of her Rule 53 court record. The witness did not mention receiving the IGI report to anyone as she never suspected that it was the same classified report. The witness agreed that the Office had close ties with SSA, more so than previous Public Protectors.

In further testimony, the witness stated that setting deadlines with consequences is a good practice if achievable and raised concern around the issuing of audi letters. This followed after the witness indicated that the PP pressured her to fast-track readying notices to implicated parties days into her taking over a second unit. The Public Protector’s legal team and Members asked questions about Ms Mogaladi taking responsibility for delayed reports, however the witness said that she takes responsibility for her actions but not for everything that went wrong, and that her mistake was to agree to complete the FSCA report in two days. Members asked questions about disciplinary processes in the Office against other staff involved in reports that were reviewed, to which the witness replied that those staff members were never suspended or made to face disciplinary charges. She thus felt that disciplinary action was inconsistent in the Office as well as she was personally victimised, as her charges followed after the review of only the FSCA report. The witness also testified to the working environment within the Office, saying that it was highly pressurised, and had a culture of intimidation, fear, and mistrust.

Previous witnesses testified that the PP had met privately with politicians in another investigation, to which Ms Mogaladi testified that she accompanied the PP when meeting the President regarding the CR17/Bosasa matter but that she was not aware of any private meeting having taken place between the PP and the President. The pay grades within the Office were also questioned, as the Public Protector’s legal team raised that investigators were being paid high salaries despite the FSCA investigation and report missing repeated deadlines. The witness said that raising remuneration was unfair as investigators worked on many cases. Members asked the witness about the PP salary which was disclosed as R2.3 million per annum with an end-of-term ‘golden handshake’ of R10 million – which requires the PP to be in office when her term expires next year. Other matters answered by the witness included the circumstances around missed deadlines, who should take accountability for the defects in the invalid report; and if other executive managers had been suspended when reports under their supervision were reviewed and set aside.

Meeting report

The Chairperson welcomed everyone to the Section 294 inquiry. Today the Committee would continue with the cross-examination led by Adv Dali Mpofu SC until lunchtime. He welcomed Ms Ponatshego back to the Committee and allowed Adv Mpofu to resume.

Adv Mpofu wanted to raise just a few issues for the record, but he wanted to make a proposal because the first one was a minor issue – just to report back and place something on the record. The other one dealt with the time allocation which the Chairperson had just made. The third one was the most substantive which he would rather leave for now, in the sense that it would take longer to deal with – maybe 20 minutes or so. He asked whether he should raise those issues, including the third one, or do it at the tail end of the cross-examination. This was because he was definitely unlikely to finish by lunchtime, so he asked for the Chairperson’s indulgence as he thought this was very important. The Public Protector’s legal team needed to put certain broader issues, as he had indicated the previous day, than Ms Mogaladi’s evidence, simply because of her position. He had to say that when he asked for more time, for example, with a witness like this, it might look like they were spending more time but actually it would result, he could assure the Chairperson, in saving a lot of time. It had already worked out that through the evidence of some of the witnesses, the Public Protector’s legal team had cut out some of their own witnesses, because those issues had been dealt with, and so on.

In the short run it might look like asking for extra time was adding more time, but he could assure the Chairperson that it would shorten the proceedings substantially. The Public Protector’s legal team had already cut out three or four witnesses because of that kind of approach, because they were trying to make sure that the Committee worked within its own programme. The one issue that he wanted to just get rid of, which was going to take a minute, just to place on record that the Public Protector’s legal team had now supplied the Committee with the list of witnesses. As these matters happened, it could be seen that they had left a window open. The evidence leaders would tell the Committee, it became so unpredictable – particularly because there were still four or five witnesses left and you never knew if one of them might raise an issue which might need to be battered and so on. He confirmed that the Public Protector’s legal team would not abuse that window. The witnesses that they had given the Committee at this stage were what they were, and the likelihood was to cut more than to add, so they would try and approach it in that fashion.

The Chairperson suggested two things to protect Adv Mpofu’s time – that he park the other issue so that Adv Mpofu could start the cross-examination. The second point was to thank and appreciate the Public Protector’s legal team as he had received the provisional list – which was what he wanted to call it. It was a dynamic process which could change, which was his understanding on that. He understood that the fact that they had not concluded and there were still a few more witnesses might play in that as well. He asked Adv Mpofu to resume the cross-examination with the understanding that he could deal with those issues later.

Cross-Examination of Ms Ponatshego Mogaladi (continued)

Adv Mpofu: Good morning, Ms Mogaladi.

Ms Mogaladi: Good morning, Adv Mpofu.

Adv Mpofu: How are you this morning?

Ms Mogaladi: I'm good, and you?

Adv Mpofu: I'm very well, ma'am. Alright, so this is what I'm going to try and do. Yesterday, as I explained to you, I flagged out some of the key areas and topics that we are going to cover. I'll do the same today. I'm now just going to drill into each of those areas in more detail, and please assist me by just listening to the question and answering. If it needs an explanation, obviously give an explanation, but if it can just be disposed of by a simple yes or no, let's do it like that so that we can save time because we have our own deadlines here – like the Public Protector’s Office. Understood, ma'am?

Ms Mogaladi: Noted.

Adv Mpofu: Thank you. Okay. Now, the first issue that you and I covered yesterday was quite important in relation to the issues that Adv Mayosi said you were called here to deal with, which is charge four, and I just want to make sure that we're still on the same page. Your position has always been that you accept the guilty finding of the chairperson of the disciplinary hearing but you contest the sanction. In particular, you contested the fact, the view of the Public Protector, that the relationship had irretrievably broken down which would have necessitated a dismissal. Would that be a fair summary of the position?

Ms Mogaladi: Can you repeat the last part of the question? I was distracted.

Adv Mpofu: Okay. Sorry about that. I'll repeat the whole thing. Your position, which you confirmed yesterday, is that you accept the guilty finding but you contest the sanction – particularly what I call the intended sanction of dismissal by the Public Protector. In that second topic, one of the key issues was the fact that the Public Protector was of the view that the relationship between you and the employer had irretrievably broken down, and you and Ms Sekele were of a different view. Is that generally a fair summary of your position?

Ms Mogaladi: Not correct, Chairperson, I think it's important that I clarify this point. Firstly, I did not say, I accept. I accepted that I did not challenge the guilt finding. I think it's important that I take the Chairperson and Members into confidence into why we arrived at where we were as between myself and Ms Sekele. Yesterday, I went through the different timelines indicating when we received the… Firstly, we received the guilt finding in March and then we only received the sanction in May. In the first place, when we received the guilt finding, it was very clear in our mind and even now, we still don't agree with a guilt finding. There are various reasons why we do not agree with a guilt finding, but I will touch on some of the key areas that we did not agree on that guilt finding. Firstly, I think if you go through the record, you will note that there were certain points that we raised mainly as preliminary or point in limine through the hearing. In our view, we were not satisfied because we felt that those points were not dealt with properly by the chairperson. Another point in limine that we raised was the issue of inconsistent and selective discipline. The issue was first raised around 6 July, the employer objected, saying they were not forewarned that we are going to raise the issue of inconsistent and selective discipline. We raised it again in our closing point, the chairperson dismissed it on grounds that we still do not agree with it because the reasoning was the timing of the reasoning. So we felt that we were still not happy with that. The second point we raised was initially when we got the notice of the disciplinary, we were told that an independent chairperson was appointed to preside. Our legal representatives at the time raised some points with the employer, raised questions around the independence of the chairperson. The Office never responded. One of the key questions that was raised by our legal representatives was, is the chairperson representing the employer in some of the current matters that are pending. The Office never responded. Towards the end of the case it came to our attention that whilst the chairperson was presiding over our case, he was also representing the Office in an arbitration case. Later towards the hearing, we lodged a formal application for recusal that was dismissed by the chairperson. It was one of those issues we really felt strongly about that it might be an important issue to be adjudicated by an independent tribunal, such as the Labour Court or the CCMA, depending on where we would have taken our challenge on the decision of guilt. Then the third point really of great concern to us as the investigation team was some of the substantive issues that were raised against us by the Public Protector. Because those issues have implications not only for myself and Ms Sekele – it had implications for the organisation. One of the issues when you drill down on the evidence, and which is one of the issues that we were found guilty, it related to, for instance, the provisions of section 6(9) of the Public Protector Act, which mainly deals with the cases that are being referred to the Public Protector. In terms of that particular provision, the Public Protector has discretion to entertain cases that are older than two years. One of the charges against us was that we did not deal with the provisions of 6(9) in the section 7(9) notice. But in terms of our policies, in terms of the Public Protector Act, it is very clear that the provisions of 6(9), it is a preliminary issue that should be exercised, it is a discretion that the Public Protector should exercise at the beginning of the investigation before anything else at the stage of assessment. If we looked at the trail of papers in this matter, our own internal processes were not followed in dealing with this matter. We raised this issue during our evidence. The points were really not dealt with properly, and what also concerned us was whilst we were being charged, the employer was saying we did not deal with the provisions of 6(9) properly in the notice. The Public Protector, in the affidavit that filed in the High Court in the review of this matter, was acknowledging that she dealt with the issues of 6(9). So for us, it was something that we needed clarity around that we raised those issues with the chairperson. The second issue we really felt was concerning, it might have long term implications, is that one of the issues presented that we were found guilty was the FSCA raised that the true identity of the complainant was not disclosed by the Public Protector. The FSCA was of the view that Mr Malema was not the true complainant; the complainant was a certain Simon Mesh who was a convicted criminal. They had their own views on why they felt that way. They kept on insisting from the beginning that Mr Malema was not the true complainant in this matter and one of the issues that we were found guilty of was that we failed to disclose the true identity. Actually, it said we have failed to investigate and disclose the true identity of the complainant. Our view was that that is inconsistent with the Public Protector Act because the Act says the Public Protector cannot receive a complaint from any person. So we couldn't understand why all of a sudden we had to investigate who the true identity of the complainant was in this matter. In our view, even though we came late into this investigation, our view was that it was clear that the complaint was lodged by Mr Malema, why should we go at length to go iInvestigate, and also the unfairness of that. Those are the processes. If they were correct, they should have been done at the time that the complaint was received by the Office. We felt that it seems as if we are now being charged and we are being found guilty of having closed the gaps that were overlooked. And of concern is that whilst it might seem as if maybe it's not that immaterial, as an office we are still struggling with some of those issues. Yesterday I indicated that had this matter been properly investigated, rather than moving to charging us, it might have helped the organisation. Some of the issues that were presented by the FSCA, we are still struggling with as an organisation. Clearly in terms of the processes, those decisions do not fall within my power, coming in late at the end of the investigation. It is an issue that should be determined at the beginning. We have a lot of cases that have been set aside on review in the court because of the provisions of section 6(9), because this was not really exercised correctly in the organisation. If you look at our processes, there is a separate process of dealing with that at the early stages of the investigation. So we did not agree with the sanction of guilt, but the timing of everything became critical to us. Firstly, as we got the sanction, which was the ideal time that we were supposed to have decided on the appropriate route, we got the letter from the Public Protector who wanted to change the sanction of the chairperson to a dismissal. So after lengthy conversations and consultation with our attorneys, we decided to settle, for lack of a better word, I would call it the lesser of the two evils because it was either we challenge the guilt finding or we challenge and focus on what threatened our life. No person wants to lose our jobs, especially if you look at my and Ms Sekele’s age. We are all above 50. If you lose a job at that age, where do you start? It might be a challenge, and it was also the other factor that was really critical to both of us.

Adv Mpofu: I'm sorry ma’am. I'm really sorry, I’ve tried. Please, I said to you at the beginning, I just didn't want to cut you. You've taken 15 minutes just to answer one simple question, which is did I summarize your position correctly or not? You answered the question that I didn't, and you explained the distinction between the sanction and the finding of guilt. That's fine.

Ms Mogaladi: Chairperson?

Adv Mpofu: Can I finish ma’am? I'm just saying that we are working under serious time constraints. If the Chairperson gives me three days, I'll let you take 15 minutes on every question. But if he doesn't, then it will just make the cross-examination meaningless because it will mean we’ll cover only four or five questions. So let's just try to accommodate each other, ma’am. I'll try to structure my questions in such a way that you deal with that particular proposition. Then we move to the next one. For example, now I said do you accept, you said no, then I'll say why, then you give your explanation and so on. Let's please try and work together. Okay, you can come in now.

Ms Mogaladi: No Chairperson, I wanted to say, for me, I do understand where Adv Mpofu is coming from but I just need your protection, Chairperson, because I feel that it's very important for me to express myself. To just respond by saying yes or no, it's not proper. It is important that I explain because it's easy to draw conclusions from this matter and yesterday we did not go into explaining where we are, particularly why we didn't challenge the finding of guilt on this matter, which I believe that is very correct. I just wanted your protection as Chairperson that I be allowed and given that space to explain this, because there are going to be conclusions that are going to be drawn from the fact that we did not challenge the guilt finding.

Chairperson: Okay, is my understanding correct, that at least you would have taken time, because you would have requested that you wanted both the Chair and the Committee to understand this issue. I was just sitting back and looking at Adv Mpofu because once you start evidence leading and cross-examination, they control the time. I intervene where it is necessary. But I thought that you were able to spend some time just giving us the proper context, so that when you come to the next questions you don't repeat those issues. I think unless you would not have concluded, I thought you were about to conclude on the matter of completing that context. Therefore get into the specific questions. Am I right?

Ms Mogaladi: Yes, I still had one last point that I wanted to raise around this matter.

Chairperson: Okay, just briefly, that's fine. Adv Mpofu would want that time from me. Please proceed. I will borrow that time.

Adv Mpofu: I’ll claim it back. Thank you, Chair.

Chairperson: Go ahead.

Ms Mogaladi: The last point that I think was also important is that we had been on this case for almost two years. It was a very emotional and a draining process. So we wanted to get to a stage where we close off this case, much as it didn't close it because the Public Protector still took the matter on review, but our thinking at the time was, look, we need to get to a stage where we wrap this matter because it was both emotional and it affected our health as we were going through the case. Thank you.

Adv Mpofu: Thank you very much, ma'am. You would accept though that as a legal person, that if you disagreed, or did not accept the guilt finding, that would have been the quickest shortcut to resolve all your problems, because once the guilt finding is overturned, then there's not even a debate about any sanction. Do you agree with that statement, generally?

Ms Mogaladi: Not really, under the circumstances what was critical for us at the time was the intention of the Public Protector. That is why we went for that. It was critical, and we thought it was important for us to focus on that one.

Adv Mpofu: Yes, no, ma'am. Please listen to me carefully. You were a magistrate at some stage, correct?

Ms Mogaladi: No. I've never been a magistrate.

Adv Mpofu: Okay, which part of law did you practice?

Ms Mogaladi: I was in the State Attorney's Office.

Adv Mpofu: State Attorney. Okay.

Ms Mogaladi: I’m an admitted attorney.

Adv Mpofu: Yes, ma'am. I'm sure you've done all sorts of cases, including maybe criminal cases. I'm making a general proposition which I'm sure you'd accept, or anybody would accept. Namely that if, let's say you get sentenced to 10 years, you're found guilty Then you get sentenced to 10 years, when you appeal that, if you appeal the guilt finding, and successfully so, then nobody's going to be debating issues of 10 years or nine years or whatever, because once the guilt finding is away, then the sanction is also automatically away. Surely you agree with that just as a legally trained person?

Ms Mogaladi: I have said under the circumstances for us, we felt that would have not been the correct approach. The easiest and the quickest one for us, under the circumstances, was to focus on challenging the Public Protector’s decision to change the sanction.

Adv Mpofu: Yes, ma’am, please listen to the question I’m begging you. I'm not asking you about for you or for anybody else. I'm asking you a general question. Do you agree that as a matter of law, if the conviction or the finding of guilt is removed, that automatically removes the sanction? Nothing to do with you. Just as a matter of logic.

Ms Mogaladi: Yes.

Adv Mpofu: Thank you. All right. Now, I'm going to put to you then that the real reason why you did not challenge the guilt finding is because you accepted responsibility for the wrongs that you had done. What do you say to that?

Ms Mogaladi: Not correct.

Adv Mpofu: Not correct?

Ms Mogaladi: Yes.

Adv Mpofu: I'm going to put to you that you also appreciated the wrong in your actions, which were found to be misconduct by an independent chairperson. What do you say to that?

Ms Mogaladi: Okay Adv Mpofu, I indicated our viewpoints earlier on challenging the guilt finding. I went at length to elaborate on that, because I thought it would address some of these questions. That is why I'm saying, look, there were several paths with regards to that guilt finding There are things that I think it is very clear in our mind that we did not agree with that particular guilt finding. So it would not be correct, because the fact that we did not challenge it doesn't mean that it is correct. We opted for a different route, I have given the reasons why we opted for that.

Adv Mpofu: Yes, ma'am. I heard you squarely. I think everyone also heard you, we were all here. I'm simply saying that the reason why you did not challenge the chairperson’s findings is because you accepted them. I’m putting that as a proposition, you can agree or disagree.

Ms Mogaladi: I accepted them, but it doesn't mean that they were correct. I did not challenge them not necessarily because I was saying that they were correct. I did not accept it, but under the circumstances we decided not to challenge. We felt that it would be better to focus on the sanction.

Adv Mpofu: Yes, and as you are sitting here now, you don't feel that you did anything wrong. In other words, you have no remorse? You didn't learn anything from this?

Ms Mogaladi: Okay. I think Adv Mpofu, we went through this process, there was the review application, we consulted. Part of the things that we said in the review application in our affidavit, I think it's something that I think is no longer on the table because we no longer have the application, was that. look, the manner in which certain things happened, it was an opportunity for us to learn. Like in any situation that we go through as a person, there is always an opportunity to learn from that. And whether I was it doesn't mean that if you say that I go through the process of learning, it doesn't mean that you are saying I was wrong. Yes, there was an opportunity for ourselves as the employee, as well as the organisation, to learn from this process. And where it was important and critical for us to learn, we have learnt lessons and we decided to move on.

Adv Mpofu: Alright. And so you think that it's okay for a report to be issued long after the deadlines that have been set? Some of them having been set by the investigators themselves.

Ms Mogaladi: Can you repeat the question?

Adv Mpofu: So you think that there's nothing wrong that you did, even taking into account that we had a report that took so long to produce with so much resources, investigators were involved, and so many chief investigators, yourself and so many people that it would take more than a year, almost two years to produce a report on this matter? You think that's fine? You didn't do anything wrong in that respect, either as a leader or just as a person?

Ms Mogaladi: Look, the issuing of the reports, Adv Mpofu, in my view, should be based on, is the matter ready? Are we as an organisation, do we believe that we have done everything that we should have done as the Office of the Public Protector? Is the report correct? So whether it is time based, it's something else. What is important for me is that a report should be issued when we feel that it is correct, it is ready to be issued. Whether it takes two months, whether it takes a year or two or three years, what is important is that do we believe that, as an Office, now we have a report that is correct? Have we covered all ground? Have we gone through all the structures that we have put in place to ensure that we produce quality reports?

Adv Mpofu: Yes. Do you think that the members of the public who complain at the Public Protector’s Office, take that view? That it doesn't matter how long it takes as long as when you feel, as you say, that you are ready, whether it's two years, three years, eight years, that's fine?

Ms Mogaladi: Okay, can I just clarify something. We need to maintain a balance as the organisation. I don't think we would be helping the members of the public if I'm going to rush to issue a report after a month once I know that that report will be taken on review because we have not properly investigated the matter. So we need to maintain that balance. We need to balance the speed as well as the quality of our investigation reports. It's not even about me, it is the circumstances that prevailed in this matter. So it's not even about me. I'm not saying it's about me; it's about looking at the matter objectively as the organisation and saying, “Are we fine?”

Adv Mpofu: Yes. Okay. Let's do that then. Let's look at it objectively. In this particular case, the complaint was made in November 2017. Correct?

Ms Mogaladi: Right. No, in April. Sorry. It was lodged in April 2017.

Adv Mpofu: Yes. I'm sorry. November is my next. Sorry, it’s 7 April 2017. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Almost a year later, in fact, more than a year later, the work had not been done The Public Protector then removed the file from Mr Matlawe. Correct?

Ms Mogaladi: I think to be precise; it was almost 14 months later.

Adv Mpofu: 14 months later?

Ms Mogaladi: Yes.

Adv Mpofu: That’s more than a year. Okay 14 months later and you think that's fine? That a matter, which is important for a complainant, sits for 14 months with no work being done on it? Is that what the public is paying for?

Ms Mogaladi: Adv Mpofu, I said had all the circumstances been taken into consideration, those are the questions that the Public Protector should have asked. Those are the issues that we raised in our defence during the disciplinary hearing to say, this matter was investigated in the Private Office of the Public Protector. For 14 months there was no activity in that file. It had nothing to do with anyone. It didn't have anything; Carina was not involved; Mr Madiba was not involved. For 14 months, it was just dormant. Nothing done on that file. So it's like now, it's not correct. It's not correct Adv Mpofu, but if the Public Protector was being fair, you cannot take that into consideration and put people under pressure – who are just taking over the matter – to finalise it, because for 14 months the Public Protector allowed the matter not to proceed, with nothing being done on the particular case.

Adv Mpofu: Yes. Okay, ma'am. Please, if you just listen to my question and answer it, we will get to…Don't pre-empt where I’m going because we will get there, believe me. Just answer the question. You accept that if the matter stays for 14 months unattended for whatever reason, that is bad if you put yourself in the shoes of a complainant?

Ms Mogaladi: Correct.

Adv Mpofu: Thank you. Then one of the actions that the Public Protector took was to remove the file from Mr Matlawe. That's common cause. You accept that, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Then she gave the file to Mr Madiba. Correct?

Ms Mogaladi: Not entirely correct. Mr Madiba as the supervisor and Ms van Eeden as the senior investigator.

Adv Mpofu: Yes. I know, but okay. Who was more senior? When I say she gave it, I don't mean to a single person. Who was senior between the two?

Ms Mogaladi: Mr Madiba.

Adv Mpofu: Yes. Okay. So she handed the file over to Mr Madiba and his team, if that makes you feel better. Okay?

Ms Mogaladi: Correct.

Adv Mpofu: And she said she wanted the work to be given to her by 17 July 2018. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: That was not done. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Then five months later, with all that work not having been done, she said she wanted the work to be done by 2 November. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: And so this is now, we have 14 months, and now we have another five months. It’s 19 months that the work has not been done. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Then after these 19 months, the complainant is just sitting there. People are earning money. The average salary of an investigator is almost R1 million. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Of the people that you were in charge of, at some stage you were in charge of 21 such professionals. That's about R21 million spent on those people. It's more, it's about R30 million spent on them for a period of 19 months by the public They have not produced anything so far.

Ms Mogaladi: Adv Mpofu, I don't agree that we should make this matter about the numbers. Firstly, if you take your first date that the Public Protector gives Ms van Eeden and the late Mr Madiba a file on the 4 June and says, I want a section 7(9) on 17 July. The key thing is, was that reasonable? And my answer is no. The Public Protector in her affidavit in the review of this matter estimated the volume of documents that the two had to go through at about 20 000 pages. To give people six weeks, they have never dealt with this case, it was the first time that they were coming across that matter, you give them a file with documents that are estimated 20 000 pages, say to them, “Go and draft a section 7(9)”, that was not reasonable. Throughout Mr Madiba was expressing his frustrations. I have come across one email where he was saying, “But what am I expected to do?” It's important that our processes are very clear that you investigate the matter, as you investigate you start drawing your conclusion. Both Ms van Eeden and Mr Madiba were not involved in this matter but they were instructed to draft the section 7(9). You draft a section 7(9) when no investigation has revealed that there are negative findings that have been established during the investigating. In this instance, there was no handover report, there was nothing on that file. It was not reasonable. Even up to November, my answer would still remain that to expect people who were not involved in this matter to draft a section 7(9) up to November. I don't think it's correct and fair to the investigators to make it about numbers and the salary because this was not the only case that they were dealing with. From the email trail, Mr Madiba went at length to outline the cases that he was dealing with – same as Ms van Eeden. So I don't think it's about numbers and the salaries that the employees were earning at the time. It's about was it reasonable? Why was the file removed from Mr Matlawe? He was still in the Office. Would it not have been quicker if the PP was concerned about the time, would it not have been quicker to allow Mr Matlawe the time and space to complete the investigation, because once you remove it, you allocate it to a new team, it takes longer.

Adv Mpofu: Okay. So that long answer is, I suppose it's a no?

Ms Mogaladi: Yes, it’s a no, I’m putting it into context.

Adv Mpofu: Please can I finish? Please, ma'am? In other words, you don't look at it from the point of view of the complainant, a period of 19 months where people are earning an average of R1 million or more, about 10 or 15 or so of them, to expect them in 19 months to have produced a section 7(9) notice, you're saying that’s unreasonable? That’s your evidence?

Ms Mogaladi: I am saying, Adv Mpofu, it’s not about the salary; it's about in this instance. Yes, there is a complainant. My point is if the Public Protector was concerned about the complainant, was it really fair to the complainant to remove an investigator who had been sitting on this matter and who was at the final stages of finalising. Mr Matlawe was at the final stages. I think he had requested a week's extension to finalise and conclude this matter. So was it fair to the complainant? So it's not about the numbers and the salaries that were earned by the investigators, It's unfair to them because they were dealing with other cases and they can produce the products. It's not that they were sitting on this file and doing nothing.

Adv Mpofu: Yes. Okay, ma'am. So at least we agree on one thing. Mr Matlawe had done some work, analysed the 30 000 pages. So it was no longer, you know, you didn't have to start from scratch. Some work had been done.

Ms Mogaladi: But I’ve indicated that the work that he had done was in the final stages.

Adv Mpofu: You said he was at the final stages.

Ms Mogaladi: No, but the work that he had done was not handed over to us. It wasn't.

Adv Mpofu: Okay. No, that's fine. Now, so basically, you're saying the 19 months is reasonable. Okay. Let's look into that.

Ms Mogaladi: I have not said that it's reasonable. Adv Mpofu, I think what is important is that we need to clarify what really happened. Yesterday I said had the Office taken into consideration the entire circumstances, we would not probably be talking about this matter because we would have dealt with this matter differently. So it is important that you make it clear that whilst I'm answering these questions, it was not even about me. Those are the decisions that are taken by the Public Protector. I believe that the Public Protector is best suited to be the person who's answering those questions on was it reasonable for her to remove this matter and give it to a new team? Was it reasonable for her to expect the new team of investigators within six weeks to go through the record and draft a section 7(9)? Notwithstanding all those queries that Madiba was raising, was it still reasonable to expect Madiba to produce a section 7(9) under the circumstances? Those are the questions that can be answered by the Public Protector.

Adv Mpofu: Yes, no, that's fine. So it's the Public Protector’s fault. Okay, that's fine. So let's assume that it was not reasonable.

Ms Mogaladi: I’ve never said that. I didn't say that Adv Mpofu.

Adv Mpofu: Okay, she was being unreasonable, as you say. Let’s assume she was unreasonable.

Ms Mogaladi: I didn't say that, Adv Mpofu.

Adv Mpofu: Okay. You’re saying she must ask herself, was it reasonable to give the six weeks?

Ms Mogaladi: I said, those are…

Adv Mpofu: Yes, I'm assisting you ma’am.

Ms Mogaladi: No, I’m saying…

Chairperson: Okay, you’re going to have to wait for each other so I'm trying to avoid collision. So just take your time and come in when he's off the platform Ms Mogaladi.

Adv Mpofu: Thank you, Chairperson.

Ms Mogaladi: Thank you, Chair.

Adv Mpofu: Yes, please. I'm really appealing to you. I’m saying you are saying that the Public Protector should have asked yourself if it was reasonable to ask people to do that work in six weeks. I'm trying to, I'm agreeing with you, but you're coming in. I can't even finish my sentence. I'm saying let us say when she asks herself that question, she then comes to the conclusion that it was unreasonable to have given the people six weeks. Okay. Now I'm saying then, the six weeks ended on 17 July 2018. Right? The six weeks that you are referring to.

Ms Mogaladi: Correct.

Adv Mpofu: That’s July, August, September, October, November. Was it reasonable to expect it at the beginning of November? Assume it was unreasonable to expect it on 17 July.

Ms Mogaladi: I think the answer would be dependent on the team that was dealing with the matter at the time. At the time, Mr Madiba indicated at the 2 November he still needed more time meaning that, based on his assessment of the matter, it was not reasonable. The time that had elapsed was not reasonable for him.

Adv Mpofu: Yes, no, I thought we were talking about the Public Protector. You were saying she must ask herself whether it was reasonable to ask for six weeks I'm saying assume she asked that question and came to the conclusion that it was unreasonable to ask for the report on 17 July. Then it’s July, August, September, October, November. If she asked that question again, about whether to now ask for it in November, do you think she should have come to the same answer, that it was unreasonable?

Ms Mogaladi: That answer would have to be determined based on what the team was saying at the time. When you determine that, you look objectively at what I’m saying. At the time, Mr Madiba was saying, “Give me a bit of time.”

Adv Mpofu: Yes, no. Thank you very much. So let's do that then. I'm just trying to work with you. So to depend on the view of the team that would be led by Mr Madiba. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Now, Mr Madiba then says, “No Public Protector, this deadline of yours of 2 November is unreasonable.” And he set himself a deadline. He says, “I can only do this on 9 November.” This is now his deadline, not the Public Protector’s. Was that reasonable?

Ms Mogaladi: For Mr Madiba?

Adv Mpofu: No, for anybody in the world. When Mr Madiba now says, “Even these five months extra that I've taken not doing the work is unreasonable, but I need until the 9th.” Is that now reasonable, that deadline? Because it now comes from Mr Madiba, not from the horrible Public Protector?

Ms Mogaladi: Yes, based on his assessment at the time he felt that he would be able to submit on the 9th.

Adv Mpofu: Yes. Okay. Then he did not meet his own deadline. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: It's still unreasonable for the Public Protector to expect the document on the deadline that has been set by Mr Madiba. Is that your evidence?

Ms Mogaladi: No, I didn't say – from the 9th up to the 18th which is about a total of nine days – I didn't say that it was unreasonable for the Public Protector because on that one it was a deadline that was set by Mr Madiba.

Adv Mpofu: Perfect, madam. I think we’ve arrived at the right place now. Okay, now that Mr Madiba had failed to meet his own deadline, which was clearly unreasonable, and he only produced the document when? On the 22nd?

Ms Mogaladi: Yes.

Adv Mpofu: Yes, three weeks later than his own deadline. Then at that stage, when you came to the Office, you knew already that this was a priority report, a priority project, let me put it that way.  I accept that you had just come into that division and all that, but at least for the other people who had been working there, including Mr Madiba, they were not in the same position as you and you knew that this was a priority project. Correct?

Ms Mogaladi: Up until I got the emails from the Public Protector, then I noted that it was a priority.

Adv Mpofu: Yes. Okay. Now let's work with that. Then you get the eventual report from Mr Madiba on the 22nd with the notice, and you just pass it on to the Public Protector, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Is that what you are paid to do? Just be a post-box and receive a report from an investigator and sommer pass it on, just put it in your own email heading and pass it on to the Public Protector without working on it? Is that the role of someone of your seniority?

Ms Mogaladi: No. I have already explained the challenges. I even explained it in that email. I went at length to explain the challenges in that email. I indicated that I didn’t want to delay it because this matter was already long overdue. I also explained that I was not familiar with the matter and to delay it further was not possible. It was still even going to upset the Public Protector because, when we explained, she felt that we were disrespecting her.

Adv Mpofu: Yes, so she was being unreasonable.

Ms Mogaladi: I forwarded that with that exception that, look, I've got this. Because if I was going to say 'give me time to familiarise myself with this matter', it was going to be something else.

Adv Mpofu: Knowing that this was a priority project, you yourself had already been in position for about three weeks and you had not taken time to familiarise yourself. Is that your evidence?

Ms Mogaladi: No, I'm not saying that, Adv Mpofu. I think it's important that we need to put things into proper perspective. I was occupying two positions; I had my responsibility that had its own challenges. I had just taken over a unit that had over 209 files. The first thing that you need to do when you take over, you need to know what is in front of your desk. I can’t just leave everything else and say I'm just going to focus on this particular one. But it's also important that I made it clear that I would expect the support of the leadership. I explained yesterday that by support, I meant that I needed to be given the time and space to familiarise myself with the cases that I was taking over. So I can put the question differently to say, to be expected to finalise something relating to a unit that I'm just taking over – knowing very well that I was carrying a high workload, knowing very well that I've already indicated some of the challenges, that it's time consuming because of some of those priority matters: Was it fair? And my answer is no.

Adv Mpofu: So it was unreasonable and unfair. Okay. So to expect you to familiarise yourself with your priority project in that period was unfair. So all you needed to do was just to pass it on, literally just like a conveyor belt without doing anything to it, correct?

Ms Mogaladi: No, I didn't say that. I've answered the question. I've indicated that under the circumstances I pass it over, in the email I explained myself.

Adv Mpofu: Yes. That explanation. Was it reasonable that you had not familiarised yourself in that period of time for a priority project?

Ms Mogaladi: It was reasonable.

Adv Mpofu: Okay, good. Now, okay, let's say it’s reasonable then at that point. Then the Public Protector, practicing what she preaches, deals with the matter in a matter of two days. On a weekend, on a Saturday, she sends a message already responding within 48 hours of receiving your conveyor belt email. She's sending a message to Mr Nemasisi about the thing, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Right. And on the 26th, two days later, she still hasn't received any response, even during the working days. Let's assume people, unlike her, don't want to work on the weekend. The following Wednesday, she still hasn't received any response. Correct?

Ms Mogaladi: From Mr Nemasisi?

Adv Mpofu: Yes, from what we know now, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Trusting that someone as senior as you must have done the work that they're supposed to do, she releases the section 7(9) on the 26th because there's no other comeback. Correct?

Ms Mogaladi: Look, it is for the Public Protector to answer that. I don't really agree with that viewpoint, because firstly, I made it very clear that I'm not familiar with this matter. I don't know the basis for the Public Protector saying she was trusting the fact that I had reviewed the work – where that was coming from. Secondly, it is very clear that the Public Protector is the head of the institution and she's supposed to. There was evidence that was led that the Public Protector reads documents. If she is unhappy with the content or the quality of the document, she would refer it back. Where I'm sitting is I would expect the Public Protector, if she appends her signature to the document, she is satisfied that she has read and is happy with the content of the document. And under the circumstances, this matter was investigated and the Public Protector was involved in this matter. So when she signed it would have been easier for her to note and pick up that there are areas that she's not happy with in that document. So by signing the document, it certified that she was happy as the head of the institution and therefore she was appending her signature having satisfied herself that document was correct. So she can’t just blindly say…

Adv Mpofu: Yes, ma'am. Okay. And when you took it from Mr Madiba and sent it to her, you were not conveying anything? You were not conveying that you were happy?

Ms Mogaladi: No, I didn't. I was very clear on this matter. I was very clear that I have not familiarised myself, I'm forwarding it because this matter is being required.

Adv Mpofu: Alright. Okay, so this is now December. So November, you were there on 1 November, correct?

Ms Mogaladi: Correct.

Adv Mpofu: And five months later, the report was released. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: In March. And even then, you still had not familiarised yourself with this matter. Correct?

Ms Mogaladi: No, no, I had familiarised myself with the matter because there was a lot of activities that were happening on the matter during that period.

Adv Mpofu: I see. So at this stage now, five months later, you were on top of it?

Ms Mogaladi: Correct.

Adv Mpofu: Right. But you did not, at that stage did you then say, well, now that I've had five months I passed that section 7(9) without looking at it, I'm now going to look at it. I find that there are some problems with it and alert the Public Protector. Did you do that? Now, that you’re on top of the matter by 26 March.

Ms Mogaladi: I have indicated that there was the discussion that was going on between us as the investigation around the need to issue a supplementary 7(9). I outlined the timelines that up until the 1 March we couldn't do much but we have started the process of trying to issue a supplementary 7(9). Then before we could conclude it, there was that request for additional documents and the indication that the documents would be submitted around 15 March. They were submitted later, I alerted the Public Protector, but the Public Protector indicated that she wanted to report so there was that ongoing communication between us on what was happening on this matter. So we simply didn't even have further time. But we had identified some of those challenges that were in that matter and the need to reissue the supplementary section 7(9) at the time.

Adv Mpofu: Yes. But until Ms van Eeden raised the alarm on 1 February and said, “We make findings against the board but seemingly we did not serve the section 7(9) on the board.” You had not picked that up?

Ms Mogaladi: No, I did. If you look at for instance, it was a remainder of the discussion, because those are the issues that were discussed. I was aware of that because there were ongoing discussions on this matter because of the pending litigation at the time.

Adv Mpofu: But you said you were, so you could not have been alerted to something that you know. You said Ms van Eeden alerted you that there was this problem, there might be this problem. So you were not alerted then, you knew all this?

Ms Mogaladi: There was I think if you go back to some of the earlier discussions, there was the discussion, it was not something that was really new. There was that back and forth between us. So alerted in the way I used it meant that there was that ongoing but, at the time, it was a reminder. If we look at the timing, we couldn't even issue it because there was already that legal process in which the Office as part of the litigation had made the undertaking that they would not further disseminate. So we couldn’t even issue that supplementary section 7(9) before 1 March.

Adv Mpofu: Okay, so you're saying when you said you were alerted by Ms van Eeden, what you really meant was that you were reminded. Is that what you're saying?

Ms Mogaladi: Correct.

Adv Mpofu: And so even at this stage, this is now almost two years after the complaint had been lodged, you are still really, if you use your word of being alerted to things, you're still really not on top of this mountain. Correct?

Ms Mogaladi: No.

Adv Mpofu: You were on top of it. Yes?

Ms Mogaladi: At that time, in March, that reminder was sent in February. I had been on that case; it was almost my third month on that particular case. It's not correct that after "two years" I had to be reminded of this, so it was three months after taking this additional responsibility.

Adv Mpofu: It was four months, but that's fine.

Ms Mogaladi: Yes. But that email was sent at the beginning of February, more than three months, or four months. Yes, I was. I was on top of that matter because the engagements that were going on, there was no way that I would not have been involved. I was part of the discussions. I was part of the meeting; we even had to consult with lawyers regarding the pending matter.

Adv Mpofu: Yes. So at that stage, would it still have been unreasonable for the Public Protector to expect you to have picked up any defects if there were any? You and your team of highly paid people.

Ms Mogaladi: Adv Mpofu, if there were defects, I would rather say shouldn't the Public Protector have picked up those defects when she signed? She signed that particular 7(9) having satisfied her as the leader of the organisation that the section 7(9) is correct. Yes. After that, there were some of those challenges. It depends on what you regard as defects because some of the issues that were pertinent and very clear, we corrected them in the report even though the section 7(9) that the Public Protector signed, went out with some of those gaps and challenges. What we could still correct that was within our powers, we managed to correct as the investigation team. It is acknowledged by the Public Protector in her affidavit that there were some corrections that were made to the report.

Adv Mpofu: Alright. Now in this report was quite an important, it was an important matter. The complaint involved alleged corruption between the institution and an attorney totalling almost about R200 million. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: That attorney was alleged to have colluded with that institution by being appointed as a curator. Then he appointed his own firm, which he'd never done, to run with the thing and paid that firm R188 million. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: And all that while that firm did not comply with the transformation imperatives of the country; it has not compliant with broad based black economic empowerment, correct? That was one of the issues.

Ms Mogaladi: Correct.

Adv Mpofu: So basically, a white-owned company allegedly colluding with a state-owned institution and siphoning funds to that magnitude. That's how important this thing was, correct?

Ms Mogaladi: Correct.

Adv Mpofu: It's basically dumping for almost two years while people are not meeting sometimes even their own deadlines.

Ms Mogaladi: I think it's important that whilst the managers who were involved in this matter were not monitoring and making sure that it complies, it's important that I also outline something, Adv Mpofu. It's interesting that you're raising those factors, because the viewpoint was that the allegation you are raising, it was incorrect in investigating that and including it in the report. It's one of the charges that we had to face. The viewpoint was the Public Protector should not have investigated that allegation.

Adv Mpofu: Yes ma’am. The whole point of investigating is exactly that, isn't it? Whether you do it in 10 years or in two weeks, the whole point of investigating is to find maybe that if I'm investigating Thembinkosi for something, I might find that there's nothing wrong he did. That's the whole point of the exercise. I must just not take 10 years to do, because it will be hanging over his head, correct?

Ms Mogaladi: It is correct. But the point I was trying to explain was you have outlined the importance of the allegations. I am saying it's interesting that you are outlining those allegations, however the viewpoint was that allegation should not have been investigated by the Public Protector. It is one of the things we were accused of not handling properly even though from the beginning and on the paper trail, the Public Protector had decided to investigate that – but towards the end we were fingered for issuing the report that dealt with that particular issue.

Adv Mpofu: Okay. When the review application was being done, your view was different from today in that you stated that you accepted the wrongdoing on your part.

Ms Mogaladi: Which review, Adv Mpofu?

Adv Mpofu: Well, okay. Have you ever accepted wrongdoing on your part, unlike today? Or is it all the Public Protector’s fault?

Ms Mogaladi: Which review are you talking about?

Adv Mpofu: No, forget about that. We’ll come to that, believe me. I'm just asking you a different question, whether you remain of the view that you do not accept any wrongdoing on your part. It’s all the Public Protector’s fault?

Ms Mogaladi: Look, there are substantive issues that I do not agree with. That is why I say it's important for you to clarify if you say ‘the review', what are you talking about? There was an affidavit that was filed in the review of the decision. Subject to legal advice at the time, there was a direct direction that we took on that matter. It was based on some of the steps that have prevailed on that. So it's very important that we clarify which review are you referring to? Are you referring to the review of the report? Are you referring to the Labour Court review? Because it's proper that I put matters into proper perspective. I can't just answer without knowing.

Adv Mpofu: Madam, you didn't hear me when I was saying don't worry about review, we'll get to it. I'm asking you a different question. I’m saying have you at any stage accepted that there was wrongdoing on your part? Or is it all the Public Protector’s fault?

Ms Mogaladi: Adv Mpofu, I think for me, it's important that this question be put into proper perspective.

Adv Mpofu: My question?

Ms Mogaladi: It's very important. I'm not in a position to answer the question right now.

Adv Mpofu: Oh I see. Okay, let me ask it differently. Do you think that it is correct that due to wrongdoing on your part and your team of highly paid people who earn about a R1 million a month, or R21 million if you put all of them, that through their inactions including yourself, the Public Protector should be sitting here facing impeachment?

Ms Mogaladi: I think, Adv Mpofu, it's not for me to determine that question. I think this Committee has been set up to decide on that, so I don't think that is a question that I'm capable of answering. It is for the Committee to determine that whether the view of the Committee is that we failed, it would have to be based on the evidence that is objectively presented to the Committee. So I'm not in a position to respond to that.

Adv Mpofu: I see. No, that's fine. Because you were telling us about fairness and all sorts of things like that so I thought you might be able to know if this was fair or not. But if you don't, you don't.

Ms Mogaladi: Can I just add something? I think, Adv Mpofu, yesterday you took me through the different levels of accountability. So if we take those different levels that you took me through yesterday, to say I have to be accountable for the work of my team, the Public Protector has to be accountable for the work of the entire organisation. If I take accountability, accountability means that I don't have to just sign off everything that comes from me. So I don't know where that question is going to say whether Public Protector should come and take accountability. That is why I’m saying it's up to the Committee to decide on that particular issue.

Adv Mpofu: Yes. No, that’s fine. Thank you. That's a fair response. I'm saying, to the extent that you are second guessing, no, I'm saying everybody should take accountability. Let me ask you it differently. Is it fair in your eyes that Mr Madiba reported to you, correct? The one that you were saying is sickly.

Ms Mogaladi: Correct. He reported to me from 1 November.

Adv Mpofu: Yes, from wherever. Just in respect of this particular item, is it fair that Mr Madiba, with all his health problems you have mentioned, should take more responsibility and accountability, in the sense that he was dismissed for this, but you had to resist and say, no, he can be dismissed, but you must be reinstated? Is that fair? Talking now about the lines of accountability.

Ms Mogaladi: Look, I think that question must be answered in its proper perspective and where it comes from. If we had to really dissect that question, yes. Was it fair for the employer to expect all those deliverables from Madiba, knowing that he was sick? If you go to my charges, one of the first charges against me was that I failed to take action against Mr Madiba because I felt that it was unfair for Mr Madiba to be expected to be entirely responsible for this matter whilst the process in the Office is that it is the responsibilities of the investigator. With regard to separating Mr Madiba from our case, it was a decision that was taken by the employer and it was based on the fact that Mr Madiba was in hospital. I still felt that it was unfair because we were going through this, we were assisting Mr Madiba with some of these challenges. But the fact that the employer did not want to postpone this matter for the period that Mr Madiba was in hospital, it cannot be attributed to me because Mr Madiba dealt with this matter before he reported to me. Secondly, that was a decision that was taken by the employer to separate Mr Madiba. It cannot be attributed to me. It is a question that the employer, being the Public Protector, should answer – that was it fair? Mr Madiba had just come from sick leave. Was it fair for the Public Protector to expect Mr Madiba to deal with this matter later when things turned out wrong? Was it fair for the Public Protector to dismiss Mr Madiba knowing fully what was going on? Because there was that direct communication between all of us and the Public Protector, especially on the challenges. Even the chairperson in his ruling acknowledges that there were challenges that were continuously communicated. So it should be: Was it fair for the Public Protector to dismiss Mr Madiba knowing the challenges that were in this matter?

Adv Mpofu: Yes. No, ma’am, I think now again we have a listening problem. Who said that the dismissal must be attributed to you?

Ms Mogaladi: No, you've just said, is it fair for Mr Madiba to have been dismissed? That's how I understood your question.

Adv Mpofu: So if I say is that fair, am I attributing it to you?

Ms Mogaladi: Because you said I was the head of the institution. Maybe you can clarify the question, then I can respond to the question

Adv Mpofu: No, but that's the problem ma’am. Don't anticipate. If I'm going to ask you a question about you being the head, I will ask it. Okay. Believe me, I will. Don't answer something I've not asked you yet. I've asked you a very simple question now. Given the lines of responsibility, which you have outlined, you said the Public Protector must take responsibility, you must take responsibility. Mr Madiba must take responsibility; everyone must take responsibility. I'm saying given that line of the chain of command, would it be fair, is it fair that Mr Madiba was dismissed and you want to stay on while he would be sitting at home for your collective failure and you being the more paid person of the too? Let me try to assist you. It’s not fair.

Ms Mogaladi: No, it depends.

Adv Mpofu: It depends on you what?

Ms Mogaladi: No. You can’t expect me to respond to the decision that was taken by the Public Protector. The Public Protector took the decision. If she felt that Mr Madiba should have been dismissed, the Public Protector should take accountability for that decision. It's not fair to attribute that decision to me.

Adv Mpofu: No, he was not dismissed by the Public Protector but by the chairperson. According to you, the Public Protector had no choice in the matter. Right?

Ms Mogaladi: No, but the Public Protector has a different view, that she has a choice under those circumstances. That's why the matter was taken on review.

Adv Mpofu: No, no, no. That you cannot do. Your view, which made you to go and spend money in courts and all that, is that once the chairperson dismissed Mr Madiba, the Public Protector had no choice, correct?

Ms Mogaladi: No, I cannot respond to that, it's for the Public Protector to respond to that. I was responding to my case. I cannot take accountability for the decisions of the Public Protector.

Adv Mpofu: No, that's fair. That's fair. Your view, let's forget about Mr Madiba, is that once the chairperson said you should not be dismissed, the Public Protector had no choice in the matter, correct?

Ms Mogaladi: Yes. Correct. Depending on the policy at the time.

Adv Mpofu: Yes, the policy. Well, we know the policy at that time. Your view is that according to the policy at the time, the Public Protector had no choice in the verdict of the chairperson. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: That policy, that's why it's called a policy because it applies across the board, would also apply to Mr Madiba. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Sure. So please, you can't say then he was dismissed by the Public Protector, because according to you she had no choice in the matter. But that's not even what I was asking you. I'm saying to you, discretion or no discretion, whatever, recommendation or no recommendation, as a matter of fairness, is it fair that Mr Madiba who reported to you gets dismissed for a collective misdemeanour or misconduct that you have committed together with him – but you must go back to work? In other words, in this whole equation, everyone except you must be dismissed. Mr Madiba is dismissed; the Public Protector must be impeached. But you must go back to work. Is that fair?

Ms Mogaladi: Chairperson, I have already responded to this question. I think I responded to this question three times. My response was that I cannot be held accountable for the decisions that were taken by the Public Protector. The fact that Mr Madiba was dismissed – I raised my issues about that yesterday. I cannot comment on this question. I was dealing with my own decision. So I feel that it's unfair to expect me to try take accountability for the decisions that were taken by the Public Protector. The Public Protector will deal with those when it's her time to respond.

Adv Mpofu: Well, for the record, nobody said you must take responsibility for anything. I'm also saying that for the third time, but that's fine. You were saying that Mr Madiba should have been spared from these responsibilities because of his health situation. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: You were the boss, why did you not do that?

Ms Mogaladi: I'm talking about the situations, the decisions that they were not within my power. So I'm talking about the support to Mr Madiba. When I took over from the time that I was in the branch up until we were suspended, I reduced Mr Madiba’s workload, I even engaged with the CEO and with HR in terms of how we support Mr Madiba and continue to support him. And my point was raised prior to the period that I joined the branch and also around the decision to suspend him and the manner in which his disciplinary matter was handled. So I was the boss in the unit, but I was not in charge of the disciplinary process.

Adv Mpofu: Yes. Okay. No, as a person who’s obviously more compassionate than anybody else, did you say that in this pressure situation Mr Madiba cannot be expected to work under this tremendous amount of pressure. Maybe he should be medically boarded or something like that, so nobody would be asking him for deadlines and things like that. Did you ever do that as his boss?

Ms Mogaladi: I did. But the decision for him to be medically boarded, it's a decision that he must take. But I did. I engaged, as I stated we had discussions with HR. So I did.

Adv Mpofu: Good. So while he was still working was it unreasonable also to expect him to deliver on the work that he was being paid for?

Ms Mogaladi: Look, the provisions of the law are very clear that there should have been reasonable accommodation. So for Madiba, it was unreasonable to expect the deadlines as if Mr Madiba was not sick. The minute that he became sick, the expectations should have changed.

Adv Mpofu: The fact that when he was put on a six-week deadline, he then went over almost five or six months, you don't think that he was being accommodated?

Ms Mogaladi: Look, reasonable accommodation must be relative to either the illness or the disability of the employee. So if you increase the timeline to six months, but you still expect him to deliver like any other person, you don't put measures in place to support him, for me, it's not sufficient reasonable accommodation. Let's say for instance, whether you give Mr Madiba five or six months, the fact that he could only use one hand but you expect him to draft a report where he has to lift files, and he cannot do that, he cannot page, if he has to page it means that he must stop typing on the computer. So it needs to be reasonable taking into consideration and there needs to be a very clear plan to support him.

Adv Mpofu: Okay. So in your view then, basically he should not have been working in that pressurised environment at all. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: And he, as you correctly pointed out, chose to work in that environment for that period. When I say chose, I know, I'm not undermining the economic factors that might have played into that decision. But he was placed in a position where he was in charge of certain investigations which are important to the public, correct?

Ms Mogaladi: He didn't choose; he had no option.

Adv Mpofu: Yes. The employer also then had no option but to expect him to deliver on the deliverables once he was in that position, correct?

Ms Mogaladi: No, I don't agree that the employer was expected. The employer had a duty in terms of the Labour Relations Act to reasonably accommodate Mr Madiba based on his medical condition.

Adv Mpofu: Thank you. By doing what? By not expecting any deliverables from him?

Ms Mogaladi: No.

Adv Mpofu: Okay, thank you.

[Tea break]  

Adv Mpofu: Ms Mogaladi, I just want to round off this issue about Mr Madiba. The Public Protector’s evidence will be that on several occasions she actually advised him to either take early retirement, or something of that nature, a voluntary package or whatever is allowed by law, in order for him to look after his health. You can’t dispute that.

Ms Mogaladi: I can note that.

Adv Mpofu: Yes. And her evidence is also going to be that he, as a Chief Investigator, it was not his role really to be, as you put it, to be necessarily turning all the 80 000 pages of the report, but there were other people below him, investigators, assistant investigators, those types of people. In other words, he was part of a team. It was Ms van Eeden, it was a team effort, he was only required to do his part as the most senior person after you. Correct?

Ms Mogaladi: I do not agree; it is the Public Protector’s evidence, but I do not agree with that. The expectation went beyond that.

Adv Mpofu: Okay. I don't know what you don't agree with. You don't agree that he was part of a team that had many other people playing different roles?

Ms Mogaladi: I agree that Madiba was a team leader. But I do not agree that the expectation from the Public Protector was that Madiba should not be actively involved in drafting in some of these matters. The expectation was that he should be drafting and assisting the team over and above his managerial. He had investigations that the Public Protector had allocated to him for investigation. So the responsibility went beyond that.

Adv Mpofu: Ma'am, yes. I don't know why you’re saying you disagree with. You don’t disagree. We’re saying the same thing. I’m agreeing that he was or rather you agree that he was part of a team. All I'm saying is that it is not as if he had singlehandedly produced the report. He was part of a wide team network, which included other highly paid people who had no health impediment. Correct?

Ms Mogaladi: No, I do not agree with that, Adv Mpofu. That is not entirely correct. Mr Madiba was the Chief Investigator. Yes, he had a team reporting to him. Ideally, Mr Madiba should have just been supervising the team. But over and above that supervisory role, he had investigations that the Public Protector had allocated to him for investigation. I think it's also important, I just want to clarify, because I'm concerned about the reference to highly-paid because it creates the impression that people were being paid because they were not working. The salaries in the Office of the Public Protector are benchmarked against salaries that are paid to people in the public service. What is also important is that these cases that are being mentioned, these are not the only cases that investigators were dealing with. It is common knowledge. It's out there that one of the things that the Public Protector prides herself with is the performance and achievement of the Office. That is not cases that are being investigated personally by the Public Protector. It is the work of the investigators in this Office. I just want to place it on record and clarify that this is not about salaries. It's important that it becomes clear that people are paid their salaries as determined. But with Mr Madiba, I do not agree that he was only supervising. He had cases that the Public Protector had allocated to him that he was investigating personally.

Adv Mpofu: Well, it might be your view that it’s not about salaries. But remember, this is the Office of the Public Protector. So the public is entitled to expect some value for money, correct?

Ms Mogaladi: It is correct. It is common knowledge that the Public Protector prides herself that the Officer has achieved during her tenure. I'm saying balance the two because the Public Protector does not investigate cases. Where credit is due, it is the credit of the team. I'm saying the message should not go out that people are not performing; they are just earning salaries. It is common knowledge the Public Protector also acknowledges that the Office has achieved. So it is the work of the investigators.

Adv Mpofu: Good. Well, we're on the same page here. So the credit, the clean audits should be credited to the whole team, correct?

Ms Mogaladi: Correct.

Adv Mpofu: And so should they be blamed when things go wrong? It should also be spread around the whole team. Correct?

Ms Mogaladi: Depending on their role and responsibilities.

Adv Mpofu: Oh I see. Only the credit must be shared; but when it is the blame, it depends on this, that, the other. Okay, no it's fine.

Ms Mogaladi: Equally the credit, Adv Mpofu. If I did not play a role in the audit, it cannot be attributed to me.

Adv Mpofu: Alright. That's fine. Okay, let me just put it to you plainly madam. The public, which you collectively are supposed to protect, pays R250 million per annum, the wage bill, it's a quarter of a R1 billion to the Public Protector’s Office and the public is entitled to delivery against that money. Would you agree with that as a general statement?

Ms Mogaladi: Agreed.

Adv Mpofu: Good. Now, one of the ways in which, in other words, I'm just exaggerating for effect, if there was one big investigation that you are supposed to do at the Public Protector’s Office, and you fail to do it, or you take four years to do it, it would mean the public has paid R1 billion for nothing. That's not correct. That's not right. I'm just using that illustration to make the point. Do you agree?

Ms Mogaladi: No, I do not really agree that taking one investigation can define the performance of and determining the salaries here.

Adv Mpofu: Yeah, no, that's fine. No, once we do that with an example then we were on the wrong path. Okay, forget about that. You accept that the public is entitled to a return and one of those returns is that there must be efficiency, there must be delivery. There must not be reports that are dumped there for four or five years without being attended to, while people are getting their salaries every month. Accept that?

Ms Mogaladi: Accept.

Adv Mpofu: Good. And one of the ways in which that is to be achieved is by having a Public Protector at the top of that organisation, who is determined and committed to the slashing of backlogs, which you and I discussed yesterday, doing away with those inefficiencies and making sure that people actually do the work that they get paid for. Is that a sin?

Ms Mogaladi: No, not really Adv Mpofu, but what is important is at what cost? At what cost do you do that? That’s the most important thing, yes. If you achieve that because you are forcing employees to work beyond normal routine hours, it just becomes something else. It's important that you need to maintain that balance. I mean we have laws that regulate the working hours. There's a reason why we have those laws. Whilst the Public Protector… it is a good thing, but it's important that we need to determine to what extent are we doing that. We need to evaluate the environment. We have sufficient resources to be in a position to achieve the Public Protector’s vision which, by the way, I must point out is good. I mean no one wants to have backlog, it's bad for all of us. But we need to maintain that balance.

Adv Mpofu: Yes. Fair enough. Okay. But as a matter of principle, nobody in this country at least, which is infested with lack of service delivery, should be hung out to dry because they are delivering services to the people. You'd agree with that as a general statement. Correct?

Ms Mogaladi: Can you repeat the question?

Adv Mpofu: Do you agree as a general proposition that in a country like this where lack of service delivery is at pandemic levels, people should not be penalised for pushing and trying to make sure that there is service delivery in the areas of their own span of control? That cannot be seen as a sin. I am correct?

Ms Mogaladi: For as long as it's done within the confines of the law, and it is reasonable and achievable. Correct.

Adv Mpofu: Good. Okay. I'm also going to put another proposition which I want you to comment on. Let's just take an example, had your team, Mr Madiba, yourself and all the others delivered on the FSCA report, let's say on 9 November, let's take the one that you said was a reasonable target, we might not be here. In other words, the Public Protector would not be facing impeachment in relation to that report at least. Is that fair?

Ms Mogaladi: No, probably we would still be here because that report would still have been taken on review due to lack of jurisdiction.

Adv Mpofu: No, but surely you know that the impeachment is not about lack of jurisdiction.

Ms Mogaladi: No, no, you are saying…

Adv Mpofu: No, ma'am, okay. Now, let me assist you. Because actually, this is important. Forget the jurisdiction point, let's assume it was. I know you don't like that kind of exercise, but just assume that there was no jurisdiction point The only issue was the defects in the report. I'm saying that, and specifically, let's not even make examples, let's zoom into the real issue – the section 7(9) notice, which was the problem. I'm saying had your team delivered that on 9 November, and putting aside jurisdiction, the report might not have been successfully reviewed. The Public Protector would not be facing impeachment in respect of that report probably, as you say, correct?

Ms Mogaladi: No, I do not agree with you. The Public Protector is not facing impeachment because of just the FSCA report. Also, there were several challenges in that report. For as far back as 4 July, the FSCA had been raising them with the Public Protector. So I do not agree with you. This process is not about the FSCA report, there are several issues.

Adv Mpofu: Yes, ma'am. Okay, I know you don't like postulating, but please try and work with me. I'm saying to the extent that this process is about the FSCA report, let’s forget all the other, there might be a million other things. Okay. Let's just put them aside. To the extent that this process is about the FSCA report, which is the only reason you are here. You're not here for the CIEX and Vrede and all that. So let's leave all that and assume that was the only issue that brought you here today. I'm saying had you and your team delivered on 9 November, then that particular charge would not have been one of the million charges, correct?

Ms Mogaladi: No, I do not agree. It's not correct.

Adv Mpofu: Alright. Would you agree that had that report been delivered on 9 November, the whole thing about Mr Nemasisi’s response coming a day after the Public Protector had already signed off the section 7(9), might not have happened probably?

Ms Mogaladi: No, I do not agree. The issue would have still been there.

Adv Mpofu: Alright. In other words, your evidence is that the events that occurred between 22 and 26 November would have happened in exactly the same way had the report been delivered on the 9th?

Ms Mogaladi: Yes, probably they would have still have happened in the same way because it was about the Public Protector requesting his legal advice. I don't understand why the Public Protector could not wait for one more day to get his input on that. So whether it was on the 9th or whether it was on the 26th, it would have still have happened probably.

Adv Mpofu: I see. Probably. But it might not have happened that way. Correct?

Ms Mogaladi: No, but I think what is important, Adv Mpofu, is this issue is not even about the time, it is about the substantive issues that were there and the challenges about that particular 7(9). So we can’t just make it a matter of whether it was submitted on the 9th or on the 27th. There were issues and not only about the 7(9), it's issues about the investigation.

Adv Mpofu: Yes. Had the report been delivered in July, as it was originally supposed to, again you're saying the same sequence of issues that happened in November would have transpired? Correct? That's your evidence?

Ms Mogaladi: Which July? Are you talking about July of?

Adv Mpofu: I’m talking about 17 July. Remember the first deadline set by the Public Protector was 17 July. The next one was 2 November. The third one which was set by Mr Madiba was 9 November. You are saying all those three deadlines, had they been honoured, the same outcome would have occurred. That's your evidence?

Ms Mogaladi: My evidence is that the issues and the challenges about this matter, it's not even about the deadlines. There were inherent challenges in this matter. The deadline of 17 July that I've already mentioned was not achievable. It would not have been possible, but there were challenges in this matter. So whichever deadline, there would still have been those challenges that ultimately led to the report being set aside.

Adv Mpofu: Okay, ma’am, maybe let me put it this way and maybe it will be easier for you to comprehend. Had the deadline of 17 July or 2 November been met, you would not have had any charges related to this matter, because by the time you started, the whole thing would have been finished. Correct?

Ms Mogaladi: Yes, correct.

Adv Mpofu: Oh I see. So you understand when it's up to you. Therefore the Public Protector, in the same way, just as you would not have faced dismissal or suspension or anything because the report would have been delivered, similarly, probably, to use your word, the rest of the chain of events would not have led to her sitting here in respect of that particular report. Correct?

Ms Mogaladi: I do not agree. I've been repeating that the challenges about this matter, it’s not about when it was submitted.

Adv Mpofu: That's fine, ma’am. Alright. Thank you very much, madam. Now, there's this issue that that I think you are alluding to now. Your whole thesis is that your misconduct was not relevant because the review ground that was successful was jurisdiction. Is that a fair summary?

Ms Mogaladi: No.

Adv Mpofu: Okay. Tell me what you're trying to say. You've said in your statement that in any event, the ground that was successful was jurisdiction. Therefore the report would have still been reviewed, which I think misses the whole point about what we are discussing. Did you or did you not say such a thing?

Ms Mogaladi: I said there were grounds of review. So in the alternative that we had considered, I said even if those grounds were not there, the report would still have been set aside due to jurisdiction – based on the reading of the papers and the judgment itself, because that was the first and the main ground that was being raised.

Adv Mpofu: Yes. And did you raise that issue of jurisdiction in your assessment of the matter once you were on top of it?

Ms Mogaladi: Earlier on I alluded to the fact that I came into this matter almost 18 months after the complaint had been received; the investigation was complete. The question that you're asking me is did I assess jurisdiction 18 months after receiving the matter. I attempted which, by the way, is incorrect because it is clear from the prescripts that the Public Protector should assess jurisdiction immediately upon receipt of the complaint. I attempted when we took over and it has been alluded to that we made and incorporated some information in the report to try and close that gap and address what should have been addressed 18 months before when the letter was received.

Adv Mpofu: But at least you must accept, again as a matter of logic, that you cannot assess jurisdiction immediately after receiving the complaint? I mean, that's just an absurdity, isn't it?

Ms Mogaladi: It's not, no, Adv Mpofu. Firstly, the prescript section 6(9) of the Public Protector Act  that discretion must be exercised when the complaint is received – because you exercise the discretion whether or not you are going to investigate this matter. You cannot exercise it once you have investigated the matter. That is the essence of this. That's what the court judgments have been saying. Those are the court rulings and practically it's clear that you cannot investigate them. You say you are exercising the discretion whether you should investigate once you have concluded the investigation.

Adv Mpofu: Yes ma’am. Doesn't section 6(9) say that you must exercise the discretion to investigate a matter that is older than two years after assessing whether there are special circumstances?

Ms Mogaladi: Yes, it's correct.

Adv Mpofu: Yes. Isn't it true that in certain matters, those special circumstances can only be discovered in the course of the investigation? In other words, you receive the thing, go through it you assess it, you analyse it and it might be two or three months later once you have now assessed the full scope that you identify whether there are special circumstances or not. Isn't that logical? As a person who's that senior, do you think that special circumstances can only be determined at the receipt of a complaint, really?

Ms Mogaladi: You are correct and it happened in this matter. In this particular case and based on the assertion of the state institution being FSCA, what they were saying was that at the time of receipt of the complaint, it was clear that the issues being investigated are older than two years. I must point out that the fact that the employer has charged us; it means that they agree with the FSCA on this matter that from the beginning that should have been established. It was apparent that the case was already older than two years. So what you are talking about and what happened and what we were being charged for, it's two different things. Under normal circumstances, it's possible that you cannot determine – you can only determine that one during the investigation when you receive information. But on this matter, the view of the Public Protector was that it was apparent from the beginning that the matter was older than two years. Hence, you are saying on the one hand the Public Protector is saying it was apparent that the matter was older than two years but we failed to establish the special circumstances, so I was expected to correct that 18 months later. When…

Adv Mpofu: I see. And so you take no responsibility for not having identified that issue yourself?

Ms Mogaladi: No. I corrected it, Adv Mpofu, in the report, and took note of that, that it was not done. It was there in the report. The special circumstances, we spell them out. The Public Protector in her affidavit alludes to the fact that those special circumstances were included in the final investigation report.

Adv Mpofu: Okay, I see. So it was your view, you and the Public Protector and others, that there were sufficient special circumstances in this particular case. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Yes. Okay. Thank you. So let's put the issue aside of jurisdiction, because your view and that of the Public Protector was that the matter should have been proceeded with. The court found differently, I accept that, but at least your view was the same as that of the Public Protector. Now let's go to the merits. I'm saying you are aware, are you not, that the Public Protector took the decision or was forced to take the decision not to oppose the matter on the merits? Forget the issue of jurisdiction which is a point in limine. But on the merits, the Public Protector took the decision not to oppose the relief of reviewing the report. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: That decision was taken purely based on legal advice received from senior counsel, because of the mess of the misconduct and the defective section 7(9) notice, and all those things, correct? The decision now, put aside the jurisdiction, was not to oppose the matter on the merits.

Ms Mogaladi: Look, there was the legal opinion, Adv Mpofu. I don't know if you must agree, because you are using other terms like there was a "mess". I can note that, not really say that it was correct. I can note the point and there was a decision that was taken by the Public Protector at the time.

Adv Mpofu: No, ma'am, we know that. I'm asking you something completely different. I'm saying the reason that the Public Protector was constrained or forced not to defend this important matter that you and I have agreed involved massive, alleged corruption, was because she was advised that the defects that were pointed out were indefensible – the defects that you were implicated in. Correct?

Ms Mogaladi: I agree that the Public Protector was advised not to defend the matter and she took that decision.

Adv Mpofu: Yes, but surely you know that that advice could not have been given without analysing the merits and demerits of the weaknesses that had been pointed out in the report. Surely you have to accept that? Unless you don't want to answer the question, then you can move to something else. Would you agree that that was based on the weaknesses that had been identified?

Ms Mogaladi: Correct.

Adv Mpofu: Alright, thank you. So it's no use telling us that no, no, the real decision was jurisdiction and what have you. That is so, but the crux of the matter… We're not here for jurisdiction, we're here because allegedly the Public Protector’s… that report had those weaknesses. And at least now we agree that if those weaknesses had not been committed by yourself and others, I'm not saying it's just your fault, then the decision not to oppose the review might not have been taken. I'm not putting it higher than that. I think we have agreed with that. Correct?

Ms Mogaladi: No, Adv Mpofu. Can I clarify something? I have been saying something consistently. Had this investigation, from the beginning, been handled properly, all those things that were alleged as defects, they could not have been there. Starting from the time, starting from let's say 1 April, the manner in which this investigation was handled compromised the ultimate product. Also the fact that the Public Protector gave us two days as a team to draft an investigation of such importance. There was nothing there really except to say that maybe probably there was a complainant who expected this matter to be finalised. Notwithstanding all the challenges, notwithstanding the Public Protector knowing what really happened in some of those challenges, it was really the two days that were given. It compromised the quality, and it puts the team in a very difficult position. So I would not really agree that entirely, you need to just focus on the content of the report. You need to take this into consideration to say, shouldn't the Public Protector as the head of the institution allow space and correct. Also what is important, you said the Public Protector is accountable. Should the Public Protector, if she felt that the record was correct, should she have signed that report? Should it have been signed? Shouldn’t the Public Protector have sat around the table with us as a team and say, “I don't agree with this, but let's improve this report”? So the fact that decision was done almost eight months later, based on that legal opinion, I really do not agree, because I have said the overall circumstances should be taken into consideration, It's important.

Adv Mpofu: Thank you, and do the overall circumstances include the deficiencies on your part and the others? Or are they all just on the Public Protector’s plate?

Ms Mogaladi: Look, as part of that assessment yesterday I said, if the assessment was that there is a part that I did wrong, I will take ultimate accountability for it. But I am saying you need to take it from the beginning, do a proper assessment on this matter to say the manner in which the organisation in which we handled this together with all other reports that were taken on review, because this is not only about the FSCA. If you read all those, some of those challenges, they are inherent in all the other reports that were finalised. I'm saying it's not about just looking at that single conduct; look overall and holistically at everything that happened. Should the team have been given two days to deal with such a matter of importance, with all these complex issues, knowing that from the beginning there had been issues and challenges raised? For instance, some of the grounds that are used to take this matter on review, were raised by FSCA during a meeting that the Public Protector chaired in November 2017. So they had always been there.

Adv Mpofu: Okay, I see. It’s all her fault. Now, let's just clarify this thing about the two days. You would agree that for the team to be given two days is also a matter that must be looked at, as you always say, in all the circumstances – one of which is the fact that that two days would have been given two years after the complaint was received, or 18 months or whatever. In other words, let me put it simplistically like this, if a complaint is received, then a team is given two days, that might be unreasonable. But if the complaint is now 18 months old or a year old, then you are given two days, that's not the same thing, do you agree?

Ms Mogaladi: No, I do not really agree.

Adv Mpofu: Two days is two days.

Ms Mogaladi: Two days should be from the date on which the team has received all the information that puts them in a position to draft a final report. You should take it from there, from what date did the investigators have the full information to draft the report? It's not necessarily from the date on which the complaint was received, because you only draft a report once you have followed all due processes in the investigation process.

Adv Mpofu: I see. So you’re saying it’s the same thing. If the Public Protector receives a complaint today, looks at it, gives it to me or to you and says, "I want this report in two weeks’ time”, then it's the same thing as that being done at the tail end, after 18 months of investigation. This, that and the other and if she comes to me and says, “Okay, now, you've been sitting with this, Mr Mpofu, I want this thing in two weeks’ time.” For you, that's exactly the same thing?

Ms Mogaladi: No, I didn't say that, Adv Mpofu.

Adv Mpofu: That was my question.

Ms Mogaladi: No, you are saying two days from the date of a complaint. I am saying the reasonableness of the two days, the deadline to draft the report you don't base it on the date of the complaint. You determine the reasonableness of the deadline based on the date on which the investigator had all the information that put them in a place to draft the report.

Adv Mpofu: Okay, no, that's fine, ma'am. Yesterday I think you might have made a mistake. Remember I asked you about when you accepted the new responsibility. You had a discussion with the CEO about it before or after the Public Protector’s letter. You were adamant that the discussion with the CEO would have been after the letter with the Public Protector. Is that still your evidence?

Ms Mogaladi: My evidence yesterday was that I wouldn't really know when this matter was escalated to the Public Protector. But I said that based on my experience in the Office, it's highly likely I got the letter of the Public Protector and then there would have been those discussions with the CEO. I'm saying it's highly likely based on my experience in the Office, but I was very clear that I had not seen the submission because the Public Protector signs a letter normally based on a submission that goes in the form of a memorandum. The letter that she signs would be attached. So I have never seen that submission. I said in my experience, it would always start with a submission with a recommendation to appoint Mogaladi to act and assume this additional responsibility.

Adv Mpofu: Yes, no, that's fine ma'am. I know, we were all here when you said that. I'm saying that that's the one part. I'm saying you were making a mistake, because the discussions with the CEO indeed preceded your receipt of the letter. It happened before. It might be that generally as you say it usually happens the other way around. But in this case, those discussions with the CEO happened before you received the letter from the Public Protector. Any comment?

Ms Mogaladi: No, I do not have a comment on that.

Adv Mpofu: Pardon?

Ms Mogaladi: I do not have any comment on that. The discussions between myself and the CEO. The question was whether they preceded the approval by the Public Protector. I can only note the point, but not comment on it.

Adv Mpofu: Okay, I don't know what that means. I'm saying to you, you said yesterday, we left the matter on the basis that you were saying that the letter would have come first Then the discussions subsequently. I'm only revisiting today because I'm saying that view was mistaken. It was actually the other way around. You had discussions with the CEO and once you had found each other, only then was the matter escalated to the Public Protector. Then she approved. It's a simple thing. It's either the one or the other. I'm saying that note on which we left it yesterday was incorrect. Do you agree?

Ms Mogaladi: No, I do not agree with you Adv Mpofu. I made it very clear that, look, as to the timing of when CEO escalated things, I do not have evidence of that, I based it on my discussion with the CEO. As to when the Public Protector approved or escalated, I cannot comment on something that I have not seen. I cannot comment on that because I have not seen that submission. Unless you are willing to share it with me, then I can apply my mind and reconsider. Especially it's important that I've been talking about things that happened almost four years ago. So if you can give me the submission for me to be in a position to comment, I have to go back to the notes that I had, I have to go back to the documents. I have never seen that submission. I was just given the letter, so I cannot comment on that.

Adv Mpofu: No, ma’am, I'm not talking about four years ago. I'm talking about four days ago, not four years ago. I'm saying that your evidence four days ago was that the Public Protector’s letter succeeded or came after the discussion with the CEO. Not four years ago, four days ago.

Ms Mogaladi: Okay, maybe Adv Mpofu, can you clarify which four days are you talking about? Are you talking about the affidavit? If you are talking to the affidavit, can you refer to the relevant paragraphs so that we are all on the same page?

Adv Mpofu: I will but I'm just asking your questions for now. Please allow me to conduct the cross-examination the way I want to. I'm simply asking whether you or rather I’m saying that your evidence now which you gave to the Committee about four days ago, doesn't wash because my reference point is not four years ago, it's four days ago. What do you say to that?

Ms Mogaladi: I don't know about four days ago. I cannot comment about the four days ago unless you refer me to four days ago. You are talking about the affidavit, let’s look at it because my recollection is that we had this discussion yesterday.

Adv Mpofu: Alright. Well, in your affidavit this is what you say, go to 3884 please.

Ms Mogaladi: Okay, I’m there.

Adv Mpofu: Okay, you say in mid-October, so that would be, let's say, mid-October, what did you mean by that? Round about when?

Ms Mogaladi: I couldn’t recall the exact date.

Adv Mpofu: I know, that’s why I’m saying mid-October. But more or less the 15th or so?

Ms Mogaladi: Probably.

Adv Mpofu: Yes, okay. You said on 8 October you were approached by the CEO to assist the Office of the Public Protector and additionally manage another branch called Good Governance Integrity (GGI) – that's paragraph 13 and so on. Then at 14, you say you were apprehensive, that is your evidence, because of your own portfolio and so on. Then you nevertheless acceded to the request, wanting to be of assistance to the organisation. So that was before the Public Protector’s involvement in the matter. Correct?

Ms Mogaladi: I cannot confirm that, Adv Mpofu. What I said was that based on my experience the CEO would not just come to me, there would have been that engagement with the Public Protector. So whether the Public Protector had approved that recommendation, I wouldn't know. But the CEO could not just take the decision on his own; there would have been an engagement before he approached me at the time.

Adv Mpofu: Then you say paragraph 15, “I later received a letter by the Public Protector dated 24 October 2018.” Later means subsequently, correct?

Ms Mogaladi: Yes.

Adv Mpofu: Okay. Thank you. Alright. Now, let's just go to something else. You accept, don’t you, I think you accepted that yesterday at least, that a report would have an investigation plan or in respect of project management, a completion plan, or rather the span of the work until completion, correct?

Ms Mogaladi: Correct.

Adv Mpofu: And although you seemed hesitant, I think you agreed eventually that that project management is defined, among other things, by a defined end date, even if it's a wish list, but there must be an end date that this will be finished on such and such a time. Just like the Chairperson here defined an end time for me. Correct? Without taking into account the sense of what kind of witness I'm dealing with.

Ms Mogaladi: I said end date is one of the main issues that you take into consideration. It’s not the only one.

Adv Mpofu: No, ma’am, no, no, absolutely. Believe me, I know a little bit about project management. I know that it's not the only, but I was just saying that it's the ultimate milestone. Let me put it like this, you accept that if you have an assignment, task, whatever, the task that the Chairperson has, for example, here to conduct this inquiry, we have a programme here which has been set. We must finish by November, October, whatever it is, and of course, if circumstances come in between, if there's another pandemic or whatever, we'll have to accommodate that, or if there are no other planes coming from Joburg to Cape Town, or whatever. But that does not stop us from having a project plan to say this will go to the National Assembly on such and such a date, Then we work backwards. That's just normal project management. Agreed?

Ms Mogaladi: Agreed.

Adv Mpofu: Yes. Deadlines might be shifted in between, but we cannot work without them. In other words, I might quibble with the Chair that he is giving me less time for cross-examination and so on. But I can't say that he must just sit there while I talk to you all week. There must be deadlines, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Yes. As a lawyer, you should even know better that, for example, the rules of court say, if you are bringing an application to court, you must put your answering affidavit within 15 days. That's it. Doesn't matter whether it’s a small case or a big case or an indifferent one or whatever. You must do it within that set time, which was set when the rules were drafted eight years ago. Agreed?

Ms Mogaladi: I agree. But I think Adv Mpofu, it's important that we shouldn't lose sight of the key components to achieving that timeframe. If I take the example that you used of the Chairperson having to wrap up the activities of this Committee by a certain time, yes, it's important that you have an end date. But for you to achieve that end date, there are little building blocks that you are supposed to put in place. One of them being resources. For instance, if the Chairperson did not have sufficient resources, both financial and human, to achieve that date, there is no way that he can deliver. He might deliver probably a report. That report might be set aside due to some of the processes having been compromised in between. That's why I am saying it's important that we shouldn't just look at the end date. You need to look as the Chairperson of the Committee, do I have evidence leaders, have I been given sufficient resources for me to meet this task that I have an end date for?

Adv Mpofu: Perfect. Thank you. I agree with you. That takes us to your other theme that you raised yesterday, namely that the management of the backlogs by the Public Protector must also be seen against what you said are budgetary constraints and other factors, which you said had been raised by successive Public Protectors and Parliament had, well these are my words, turned a deaf ear or did not deliver on those cries over the years, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Yes. If then some of the weaknesses there, including your weaknesses, any weaknesses on the Public Protector, Mr Madiba, what have you, some of those must be viewed from the perspective of the fact that had the necessary resources been availed to the Office, those weaknesses might not have been there. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: And since the Committee's here, do you have any view as to what part of the blame they should shoulder for not acceding to those reasonable requests?

Ms Mogaladi: No, I'm not in a position to do that, Adv Mpofu, because that is something that needs to be looked at holistically. I'm not in a position to do that right now. I have presented my part on my affidavit. It's up to the Committee to decide which part they are going to take, particularly where I dealt with the backlog because it is up to the Committee to decide which one to take and how much weight they are going to give it in their final determination. But I cannot tell the Committee how to do their work, except that I can assist. My understanding is that I'm here to assist. So I have assisted, I have presented my views.

Adv Mpofu: Yes, no, believe me, nobody's asking you to tell the Committee how to do its work. Even if you did, I can tell you you’d be wasting your time. The only point I'm raising is the point that was raised by you, not anyone else. In so-called assisting the Committee, one of the things you said yesterday was that those issues of backlog are attributable to the failure by Parliament to listen to some of the cries which have been made by successive Public Protectors. Didn't you say that?

Ms Mogaladi: It's a reformulation of what I said because I didn't use the words that you are using. I would be comfortable if you can use exactly what I said in my document.

Adv Mpofu: Okay, I’ll do that madam.

Ms Mogaladi: If you want me to comment on that, yes.

Adv Mpofu: Yes. So when you were listing the issues that you were saying are out of your control, you said, “the PPSA is not sufficiently funded and various parliamentary submissions have been addressed by the previous and current Public Protector and not addressed.” Is that a fair summary of what you said?

Ms Mogaladi: Can I have an opportunity to look at my submission before?

Chairperson: Sure, we will flight it. Just point us, Adv Mpofu.

Ms Mogaladi: Yes, I would appreciate that, Chair.

Adv Mpofu: Why do you need to do that? I'm asking does that capture the sentiment you were expressing or not? If it wasn't, then you can express it in your own words, we don't have to look at anything.

Ms Mogaladi: No, Adv Mpofu, I would like my submission to be flighted. I request that.

Adv Mpofu: Okay, Chair. Thank you. Go ahead, be my guest.

Chairperson: Let's just flight that.

Adv Mpofu: Sorry, I think it’s 104 ma’am.

Ms Mogaladi: Yes, I can see at the beginning. I think it's the last paragraph where I said it is the main reason.

Ms Mogaladi: Yes. That the current…

Adv Mpofu: Sorry ma’am, maybe so that we don't lose time on this, please forgive me, I don't want to interrupt you. Just read from the words, “the main reason”.

Ms Mogaladi: Okay, “The main reason for the backlog is a lack of sufficient human resource capacity in investigations, this is a fact that is well known as the current and previous PPs have consistently been raising this issue and requesting additional funding from National Treasury and Parliament. The issue is also reflected in the various annual reports of the PPSA.”

Adv Mpofu: Thank you, that's fine, so that we don't put words in your mouth, we use it like that verbatim. All I was saying is that it's your view that's the main reason for the backlog. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: It's your evidence as well that this and other Public Protectors have consistently raised this with Parliament and National Treasury, correct?

Ms Mogaladi: Correct.

Adv Mpofu: It's also your evidence that that very same issue, which I called the cry, that issue is also reflected in various annual reports which get presented to Parliament, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Thank you very much. Now that being the main reason for the backlog, the solution surely must then lie in the resolution of that particular problem – the main solution. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Now, you also know, I'm sure you do at your level, I'm still on the team of the issues that are not in your control, that to put it colloquially, complaints should be allowed to grow legs. They should be allowed to do so. In other words, a complaint might come looking like a small issue but as you investigate all sorts of angles, new angles can come in. It can grow into something bigger. I always use the example of the State Capture investigation, where at its infancy, Adv Madonsela had estimated that it would cost R130 million. It's reportedly cost R2 billion four years later. As it was said in the Mail & Guardian case, which I’m sure you are familiar with, it was said that an investigation can take us to places that we didn't think of at the beginning. That's one of the issues that might increase the cost and turnaround times. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Then I think we agreed yesterday that despite those issues outside of your control, and when I say your control I mean collectively as an institution, the one area which is in your control, which can be managed by you and the Public Protector and the others is the issue of performance and delivery against deadlines. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: That aspect, by the way, is the reason why we have such an institution or a meeting called Dashboard. That's the purpose of Dashboard – is to manage the backlog and make sure that those deadlines are met. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: It is in Dashboard that the reassessment and the explanations for these deadlines not being met are discussed. For example, if we bring it closer to home, we can assume that when that deadline of 17 July was set, there would have been, let's say, two or three Dashboard meetings in between and the Think Tank and all that. And whatever exchanges were made there, would have resulted in the revised deadline of 2 November. Correct?

Ms Mogaladi: That's how it used to be. But currently, as indicated, I said, that's not how it's happening. It used to be like that. It's correct.

Adv Mpofu: Madam, we will come to that. I'm asking you about the specific. That's why I didn't want to give you an open-ended question. I’m bringing you a concrete situation. I'm saying in this particular situation it would be safe to assume that the deadline of 17 July, which was set by the Public Protector, for it to evolve to a deadline of 2 November, in between there would have been Dashboard meetings where explanations are sought, and given and so on, so that the deadline then shifts as it did to 2 November. Do you understand that?

Ms Mogaladi: Yes, I do understand.

Adv Mpofu: Is that a fair assumption to make?

Ms Mogaladi: Yes, it's fair.

Adv Mpofu: Thank you very much. Now then, let's come then to, okay, you’re saying that's how it used to be. So at that point then it would be incorrect to say that the Public Protector, the same Public Protector who then was involved in that process, from the 17 July to 2 November deadline, was inflexible and did not listen to explanations? Because if you and I are right, then it would be safe to assume then that in four Dashboard meetings between July and November, those explanations would have been given and even accepted. Correct?

Ms Mogaladi: It's a matter of evidence I cannot confirm without verifying whether it was indeed discussed. Ideally, it should have been but I cannot comment on that because I'm not sure.

Adv Mpofu: Ma'am, please, please, please. I know you cannot be sure. I mean it would be unfair for me to ask you to remember specific Dashboard meetings of four years ago. That's not what I'm doing. You and I have agreed that we can infer from the fact that the deadline was moved from July up to November that would have been as a result of a series of Dashboard meetings and discussions therein. We've agreed upon.

Ms Mogaladi: Yes.

Adv Mpofu: I’m saying, if our joint assumption, you and me, is correct, then that would dispel the notion that in those Dashboard meetings, Think Tank or whatever had happened in between, the Public Protector had been inflexible, because we now know that she did change the deadline to November. Correct?

Ms Mogaladi: Chairperson, what I'm saying is that the general statement as put by Adv Mpofu is true, but whether this particular matter, we are dealing with a specific case, whether indeed it was discussed and those extensions were granted between, it is a matter of evidence. The minutes of the Dashboards are available. I do not know. I was not entirely involved in debt management. So I cannot comment on debt. It is a matter of evidence. I cannot make a general assumption. I can make an assumption that it may, but to confirm and say you are correct, it must be based on fact I am not in a position to confirm that.

Adv Mpofu: Okay, that's fine. Alright. You’ve sat on Dashboard meetings for years and years and years. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Every month, mostly, of your working life at the Public Protector since that institution was put in place, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Yes. So you know more than the Members of the Committee and even myself, you are here to assist, as you said, on how Dashboard works. I've never sat in a Dashboard meeting. I'm simply saying, now we know two things as fact. That there was a deadline of 17 July. And we also know that deadline evolved until it was a deadline of 2 November. Fact. Correct?

Ms Mogaladi: Can you repeat? Can you repeat the question that I'm supposed to confirm?

Adv Mpofu: Yes. Let me explain where I'm coming from before I repeat it. When I ask you to draw an inference, an inference is only drawn from concrete facts. So I can't say you must just infer something in the air. I'm saying let's start with the facts. Fact, there was a deadline of 17 July. Fact, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Fact, that deadline at some stage metamorphosed into 2 November. A new and subsequent deadline. Fact, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Yes. Now, given those facts, this is now when we get to inference. Of fact, there are monthly Dashboard meetings in between. Fact, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Okay, in those Dashboard meetings, let's say there was at least one Think Tank meeting, correct? Because I'm told it was quarterly.

Ms Mogaladi: No, at the time we were no longer having Think Tank meetings. If I recall.

Adv Mpofu: In 2017?

Ms Mogaladi: Oh, it was 2017. Yes. Okay. Probably around then there would have been maybe one for that quarter.

Adv Mpofu: No, no, sorry ma’am. It’s my fault, I’m misleading you. No, it was 2018. It was June 2018.

Ms Mogaladi: Oh yes, 2018, okay.

Adv Mpofu: Okay, fine. So you are right. I'm saying then forget about the Think Tank. Fact is that there would have been three or four Dashboard meetings in between. Fact, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Yes. Now that's where we come to the inference. I'm saying therefore one can reasonably infer that for the evolution of that deadline, this must have been as a result of explanations given at the various Dashboard meetings which were given. I won't even say excuses, explanations, let's say reasonable explanations which were given and accepted by the giver of the deadlines. Correct?

Ms Mogaladi: It's not correct because I have indicated that the focus at the time of the Dashboard was on cases that were older than two years. So in July 2018, this matter was not older than two years. So it's highly likely that it might not have been discussed at the Dashboard meetings, but it's a fact that can be ascertained.

Adv Mpofu: Okay, let's even forget about Dashboard meeting, call it whatever it is, some coffee discussion down the road, but somewhere between July and 2 November, the deadline was changed. Correct?

Ms Mogaladi: Look, Adv Mpofu, for me to know that, I do not have that evidence. If it is a Public Protector’s case, then she will present that evidence. But I have said, I do not know how it was changed. I was not involved in the matter at the time. I cannot confirm something that I do not have knowledge of.

Adv Mpofu: No, but it's your evidence. It's got nothing to do the Public Protector. Your evidence is that there was a deadline of 17 July, is it not?

Ms Mogaladi: Yes. I have said based on the…

Adv Mpofu: Yes ma’am. It's also your evidence that there was a deadline of 2 November. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Good. So forget about the Public Protector. I'm talking about your evidence, Ms Mogaladi. I'm saying based on your evidence only, purely, exclusively, solely, that deadline was changed from 17 July to 2 November at some stage. Correct?

Ms Mogaladi: Yes, correct.

Adv Mpofu: Thank you very much. That change must have happened because there were impediments; there were reasons why the first deadline could not have been met. Correct?

Ms Mogaladi: Probably because I don't know. I don't have any information that I can confirm but it's highly likely that it was based on the impediments.

Adv Mpofu: No, fair enough. I don't expect you to know because neither do I as to what those impediments might have been. But that must have been because the first one was seen to be achievable for whatever reason, correct?

Ms Mogaladi: I assume so. It might have been seen to be reasonable but, in my view, I don't think it was reasonable based on the circumstances, especially the context of this matter.

Adv Mpofu: Yeah, no, we're done with reasonableness. I think you and I had agreed that at least the one of the 9th was reasonable. That's fine. Now, so you are saying, okay, so those were the good old days. Then your evidence is that when you returned from your suspension and absence, then there was no longer the issue about, I think it's at paragraph 110 of your statement where you say that now it's different. The focus you say is now only on what product is expected and by when. But I thought that was always the purpose of Dashboard meetings. Isn't it ma'am?

Ms Mogaladi: Not entirely correct. The purpose of Dashboard was to interrogate the cases, look at the challenges and provide guidance based on the challenges that were there. So that was the whole exercise, in essence, of the Dashboard.

Adv Mpofu: In other words, yes, it would be fair to say the purpose of Dashboard is to assess the work that needs to be done against deadlines and set new deadlines, if necessary, correct?

Ms Mogaladi: Yes, correct.

Adv Mpofu: Yes. But what's the difference then, between that and saying we have to look at what is the product that is expected? In other words, is this a small investigation? Is this a big one? Is it one which is at this or that stage? The second issue is therefore by when it can be delivered. Isn't that the exact same thing?

Ms Mogaladi: It’s two different things.

Adv Mpofu: Okay.

Ms Mogaladi: The Dashboard, as I experienced it, was “What product?”, say 7(9), 20 Feb. Next matter, Report 10 July. Just like that. It was different.

Adv Mpofu: Okay, so the Dashboard meetings these days last about 15 minutes?

Ms Mogaladi: No. Can I correct that last statement? Dashboard meetings right now, they take longer because unlike the past where the focus was on those backlog cases, right now we look at all cases in the entire organisation. So it even takes longer than it used to be because you have to come with the entire caseload – even the case that was received last month. It takes longer because it is to present the entire caseload but we are going through the setting of the deadlines unlike in the past, we looked at the specific methods and there was discussion and input into the challenges that are being faced in each and every case.

Adv Mpofu: Okay, no, that's what I'm saying ma'am. So according to you now, the Dashboard meetings right now are just a dry mechanical exercise. “What product?”, section 7(9). “By when?”, July. Next. “What product?”, it's a discretionary notice. “By when?”, April. Next. And so on. So there's not even a need to have a meeting. That can be done by email, correct?

Ms Mogaladi: Yes, it can be done by email.

Adv Mpofu: Right. Now, the evidence there of the Public Protector, I think of the other witnesses, is that Dashboard still serves the same purpose. Let's even use your headings. Under “What product is expected?”, that's when the person responsible says where the thing is at, and what problems they had encountered, and so on. So it's not a question of, you know, for example, let's take a section 7(9). You know about the so-called three strike rule?

Ms Mogaladi: Correct. I know.

Adv Mpofu: So even if you and I have a section 7(9) to deliver, we're not going to say the same thing because yours might be at strike two, mine might be at strike zero, other one might be at strike three. So we interrogate the specific issues around each report, then we set a deadline. So your deadline will be different from mine. It's not going to be section 7(9), July, then Mpofu, section 7(9), July. It depends on the circumstances of the particular report. Isn't that how it's always been and how it is even now?

Ms Mogaladi: It has not always been like that.

Adv Mpofu: Okay.

Ms Mogaladi: Right now, it is how you're saying it. But in the past, each person would present their list of cases that are older than two years, present the challenges. They would be discussed in that collective meeting and the way forward agreed.

Adv Mpofu: As you say, a deadline is set or adjusted, correct?

Ms Mogaladi: Right.

Adv Mpofu: Okay, so now, how do the deadlines get adjusted in these days, in these bad days? What actually happens? Let's assume you came with your FSCA report, and you wanted your deadline to be adjusted, how would you do it? Wouldn’t you come and say, “I’ve sent this section 7(9), the people have not responded, therefore the deadline cannot be met”? Something like that. I'm just making it up.

Ms Mogaladi: In the past, that's how we used to do it. But currently, like I said, you would come, let’s say for instance, my branch currently let's say we have about 600 cases. I would go into that meeting with the PowerPoint presentation with the slides that has a list of all those 600 cases to say, this is the product, this is the deadline, this is where it is Then you would have to indicate the date on which the product would be delivered. We would not even look into the details of each case and where it is currently. But it's just a matter of that list, and you come with it. For instance, if it's a new case, allegation, letter, date, we don't even look at the details what this matter is about. Even in older cases that had been in the system, they were not really interrogated with a way to expediting and providing collective guidance on how to move those cases.

Adv Mpofu: Okay. No, that's fine. We heard evidence on that I'm sure we'll have more evidence. So many complaints have been received about your performance from complainants. Correct?

Ms Mogaladi: I do not agree that many. It depends on what you're saying about 'many complaints'.

Adv Mpofu: Many is more than one, more than two, more than three.

Ms Mogaladi: No, I do not agree that it’s many.

Adv Mpofu: Okay. How many do you know about? Let’s not waste time on this.

Ms Mogaladi: I haven't counted, Adv Mpofu, but part of the work that we do in the Public Protector, most people approach us when they are really frustrated, they are challenged. And sometimes they would expect that you take a certain direction. Some of them complain for different reasons that they are unhappy. It depends on what you regard as a complaint. Some would even complain about cases where the Public Protector has signed a report. So it's something that is relative. I wouldn't agree that many reports have been received about my work. I don't agree with that. Unless evidence is presented, I do not agree.

Adv Mpofu: You can't disagree with something. I've not said anything, so please don't disagree. I'm asking you; I'm saying so that we don't disagree, help us. In your own view, how many complaints, more or less, plus minus, we're not going to put your neck on the block, do you know which have been received about you?

Ms Mogaladi: What I'm saying Adv Mpofu, I have not counted. But what is important is that as the Branch Head I do not deal with individual complaints per se. If there are complaints about the performance of the investigators, it would come to me. It's important that we clarify this because sitting as a Branch Head, I do not have a file that is allocated to my name, but when complainants are not happy with one of the cases that falls under my branch, it will come to me. So if you say many, it is a term that needs to be clarified to say, you need to come out and say Mogaladi on this, this is your report or this is the delay about your performance. I haven't counted those cases that are coming as a customer service complaint, but I wouldn't classify it as many because it's dependent on what you are dealing with.

[Lunch break]

On resuming the hearing, the Chairperson noted that he had given Adv Mpofu until lunchtime. Reading his body language, he was not wrapping up and the Chairperson was worried because there was no intention to give him more. He asked Adv Mpofu to take the next 30 minutes to wrap up, and perhaps use the 30 minutes to raise the issues he wanted to raise inclusively to put all of that together. He welcomed Ms Mogaladi back.

Adv Mpofu: Ma'am, I'm just going back to that favourite issue of ours about the misconduct. You were saying your main reason for disgruntlement was the Public Protector’s defiance, alleged defiance of the disciplinary code, correct?

Ms Mogaladi: Can you clarify, Adv Mpofu, what time are you talking about?

Adv Mpofu: At any time.

Ms Mogaladi: Can you clarify the question so that I will be able to respond appropriately?

Adv Mpofu: Alright. Remember, yesterday you gave evidence to the effect that you had no problem with the misconduct finding but you were concerned about the sanction. Today, in the morning, you gave that long speech about qualifying that answer from yesterday by saying some long story about the merits of the case, that you were not necessarily accepting wrongdoing and so on. Remember that whole debate we had?

Ms Mogaladi: Correct.

Adv Mpofu: Now, I'm saying we need to go to… Can you go to Bundle H, folder 24, item 24.2? That's the documentation to do with your review application, but I'm going to concentrate more on your own affidavit in that document. Understood?

Ms Mogaladi: Correct.

Adv Mpofu: I’ll demonstrate that the evidence you gave yesterday, before you probably saw the implications thereof, was more accurate than the one you were trying to give this morning to change the position. Now, in response to the part in the founding affidavit which talks about the charges, you point out, let’s start at page 331 of that document, at 44.3 you say, “Sekele I have not challenged the chairperson's findings and have accepted them.” You see that part?

Ms Mogaladi: Yes, I can see that.

Adv Mpofu: Okay. That would mean, at least to that extent, you were admitting that you have accepted the guilty finding – obviously not the sanction. Correct?

Ms Mogaladi: What we were saying is that, yes, we did not challenge the chairperson and have accepted them. We did not challenge it. It's correct.

Adv Mpofu: No, that's not the important part. That you did not challenge them is common cause. It's the second part, the one you are not reading, that is important. That you accepted those findings, correct?

Ms Mogaladi: Yes, correct. We accepted them.

Adv Mpofu: I'm saying you went further, not only did you accept the finding, but you accepted responsibility for your own actions at that stage. This morning you tried to change, but at that stage you accepted responsibility. Correct?

Ms Mogaladi: We accepted responsibility on the basis of this particular clause. I just want there to be clarity, because the point that I indicated this morning was to say, if I say I have accepted the findings, I'm not saying I don't have issues with them, because those are two separate issues. The fact that I accept and the fact that they are correct. I can accept them. But earlier on I pointed out that we spent a lot of time debating and even consulted with the attorneys around the correctness of some of the issues, as I explained. The fact that I had to accept, that is why it was important for me to clarify so that it's not misconstrued. It doesn't mean that I'm saying they are not entirely correct. I'm saying I have accepted under the circumstances because I wanted to bring an end to this matter.

Adv Mpofu: Yes, no, we've had that debate in the morning – the fact that if you had challenged the conviction, obviously, the sanction would go. I don't want to go back there. I'm saying to you, you went further. I’m saying you made the statement, which we have gone through. That’s up there. But I'm saying you, it was more than just, you're now even changing it to say you had to accept. That's not what you're saying. I'm saying you accepted, you embraced the finding to the extent of even accepting responsibility for your own actions and wrongdoing. Yes?

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

Adv Mpofu: Okay ma’am. I'm saying you went further than just that bland statement that you accepted the chairperson’s findings. You went further by taking responsibility for your own wrongdoing as well, or for your own wrong actions. Agree?

Ms Mogaladi: Can you point to where I agreed so that I can comment on what you are talking about?

Adv Mpofu: Sorry to interrupt you. Forget about pointing ma’am. I'm asking you as a person sitting there now, as Ms Mogaladi, did you accept responsibility for your wrong actions in this matter, or not? Do you accept any responsibility for your wrong actions?

Ms Mogaladi: Adv Mpofu, I went at length to explain the circumstances.

Adv Mpofu: No ma’am, just answer the question.

Ms Mogaladi: I'm answering the question. I am saying I know…

Adv Mpofu: Sorry, can I just assist you? I don't have time. You must answer the question. You have to. Then you can explain till the cows come home. But please answer my question. Do you accept responsibility for your wrong actions? You can say yes or no and then you explain whatever you want to explain. Please answer the question.

Ms Mogaladi: I am answering the question Adv Mpofu. I am answering the question the way I feel is correct, not the way you are insisting that I should answer. It's within my rights to explain myself properly to the Committee.

Adv Mpofu: Alright, you can start with the explanation if that makes you feel better. But please answer the question at some stage.

Ms Mogaladi: I do not want it to be quoted out of context. I know there's somewhere in this affidavit where we indicated that the fact that we have not challenged the sanctions and we accept whatever might have gone wrong in this matter. But what we are saying is that, as far as our part is concerned, you need to take this matter holistically. Yesterday I said had the Office properly taken this matter into consideration, then we would have been able to dissect and assign proper responsibility. Yes, there might be things where, for instance, I might have gone wrong, but I cannot take responsibility for the entire fiasco of this matter. I pointed out the areas where I am not in agreement. There might be part, for instance, part of those was probably where I went home. I should not have agreed to be pressured to issue a report within two days. I should have accepted the part of being charged for not submitting that report. So whatever you are saying needs to be put into proper context.

Adv Mpofu: Okay, so that we don't do that, let's go to paragraph 64.8, page 346. This is where you are explaining why you differ with the sanction but you refer to the issue we are discussing now. It says, “I suggested”, not we. I don't know when you say we, I’m talking about you as a person. You say, "I suggested that the employer should impose a sanction of a final written warning valid for 12 months.” Remember that?

Ms Mogaladi: I think this was coming from the submissions. Can I scroll down and see the full paragraph before I comment?

Adv Mpofu: No. You don’t need the full paragraph ma’am. I'm going to read it, please. Do you remember that first part?

Ms Mogaladi: I remember the first part, yes.

Adv Mpofu: Then you go on to say, “The final written warning would be valid for 6 months longer than the code provides, which indicates that I accepted responsibility and was prepared to take an even more severe sanction.” Was that you saying that?

Ms Mogaladi: Correct.

Adv Mpofu: Yes. So that's the point I was making that, at that point, not today, you accepted responsibility and were even prepared to face a sanction that's more than what is prescribed in the code. That's how much you accepted responsibility for your wrong actions. I know that has changed now, but I'm just telling you that was your opposition taken under oath. Agreed?

Ms Mogaladi: Not fully agreed. I always maintain that I am willing to take responsibility for my part. I have never said entirely, and even earlier on, I indicated there are certain things that I do not agree with. I still don't agree with them. Adv Mpofu.

Adv Mpofu: No, that’s good. We are getting somewhere; this is a giant leap for mankind. So you accept responsibility for your part, for your own wrong actions at least. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: That is so because you even go further to show how much you accepted responsibility, to the extent that you were even yourself suggesting a harsher punishment than what is in the code, correct?

Ms Mogaladi: It's important that this was mitigation of sentence. We had already been found guilty, so at that stage, I've pointed out that no one wants to lose their job. So we were mitigating the adverse because we had already been found guilty at the time.

Adv Mpofu: Yes, ma'am. I understand that. Everyone, people who are found guilty, also appeal or try to overturn their convictions, but those who accept their wrongdoing are allowed to only challenge the sentence or the sanction. There's nothing wrong or right about it. I'm just showing that you fall under the second category; not those people who say, “I was wrongly convicted and sanctioned”. All you're saying is that I've been wrongly sanctioned, but I accept responsibility for my wrong actions, I'm even prepared to suggest, not just accept, to suggest harsher sanction than the one prescribed in the code for myself. That's a noble thing to do, even if you are disowning it now. But I'm just saying that was the context in which you were suggesting this harsher punishment, surely. Correct?

Ms Mogaladi: No. Not correct.

Adv Mpofu: Not correct. Okay. Well, the paragraph speaks for itself. Okay, let's go to paragraph 66.1. There you say, “The fact that we both”, that now is you and Ms Sekele, “have not challenged the findings of guilt and have accepted the sanction clearly indicates that we appreciate the wrongs of our actions.” You went even further than just taking responsibility, but you said you appreciate the wrongs of your action. You agree that is taking further? a) You accept the wrong findings, b) you take responsibility, c) you suggest a harsher sanction than the prescribed sanction, and d) you indicate you appreciate the wrong of your actions. That cannot be reconciled with someone who is challenging the basis of the finding. Agreed?

Ms Mogaladi: I have explained earlier on, I was referring this is specifically the paragraph that I remembered. Everything needs to be put into proper context. I've always maintained from your yesterday that this matter, had it been properly dealt with, where I would have missed a certain step as the Executive Manager and Ms Sekele as CI, I would have taken responsibility for that. So this is aimed at exactly doing that. It's important that this matter must not been taken out of context, because throughout there were challenges in this case. There were several circumstances, there were several steps, starting from where this whole thing started, when we were put onto this case and expected within that short space of time... If you say that I accept and appreciate the wrongs of our actions, it doesn't mean that we are taking responsibility for the entire failure with regard to this matter. We are saying, I said as the employer...

Adv Mpofu: No, that's not what I'm saying, ma'am. I'm talking about what you call your part – the gross misconduct, the recklessness, all the things that you were charged with. I'm talking only about that. I'm not talking about you taking responsibility for anyone else's actions. You're saying your actions, the ones you were charged for. I'm saying, and really I think I don't want to waste more time on this because it's quite obvious. I'm saying to you, there are three scenarios. There are people who will say, “I'm just challenging the sanction, I don't agree with your finding, but for all these reasons,” you're saying money or whatever, "I'm only going to challenge one part.” That's Person A. Then Person B will say, “I'm actually not, I didn't do anything wrong. But, you know, if you say I did something wrong, that's fine. That's your baby. But let's deal with what should be the consequences of that.” Then Person C, you, says, “I accept that I did something wrong, I accept my wrongdoing, I take responsibility, and hence, I'm only challenging the sanction.” That's all I'm saying. You are in that category from your own words, which I've just read to you. But you are just running away from that now.

Ms Mogaladi: Can I just understand this line of questioning, just to understand what this is? I think it will make this easier. Look, is it the Public Protector’s case that because we were charged with misconduct, therefore she is admitting as the head of the institution, she is equally guilty of the charge she is facing relating to this case. I am confused because it seems now that I am facing another disciplinary. My understanding is that this proceeding is not about me, there is a separate matter. The case I made was that I feel that the manner in which my disciplinary hearing was dealt with, it was victimisation, firstly starting from all the pressure put on me on this matter. So if I can just understand the line of questioning. Is it to say that because Mogaladi and Sekele were found guilty of misconduct in this FSCA, so your conduct contributed to the Public Protector being charged? Which in my view, then it would be an admission that the Public Protector is admitting that she misconducted herself on this matter.

Adv Mpofu: Okay. No ma’am. That legal argument, don't worry, we have competent evidence leaders here. When the time for legal argument comes, they will do. Yours is a very simple task. Just answer the questions. I’m asking you a very simple question. Forget about the Public Protector’s case, I'm talking about your case. Your case, madam, in your affidavit that I've just read out, is that you accepted responsibility for your wrong actions. And you've qualified it now by saying for your part in the wrong actions, which is defined in the charges for which you were found guilty. Fair enough. I'm saying that is a significant factor in the matter that is facing this Committee that you have accepted under oath, where you swore that you accept the wrong actions, the responsibility and that you were only concerned about the sanction and you even suggested a harsher sanction than what is prescribed. That's all. I'm just telling you that I'm summarising what we will argue at the end in respect of you, not anyone else. Understand?

Ms Mogaladi: Noted.

Adv Mpofu: Okay. I'll take that as a yes. Otherwise I’ll risk another long answer. Okay, that's fine. Now, I have to put this to you because that's really where this is going, that attitude which you adopted correctly so in your affidavit and yesterday, is not consistent with someone turning around and saying this whole finding of guilt for which I accept responsibility, for which I accept my wrongdoing, and then you say, no, but this is intimidation, or all those things that you have been put through. That's the first part of what we will argue is not consistent with that. If you really thought you were being victimised or intimidated, then you would have taken that to task as well. Do you understand that? Before you even answer, do you understand the question?

Ms Mogaladi: No, can you clarify the question so that I fully understand because it's a wrong statement. So if I can understand that statement?

Adv Mpofu: Yes, that's why I asked you that question, madam. Okay, let me shorten it. I'm saying the attitude that you have displayed under oath, the one that you agreed to yesterday and the one that is reflected in the passages I've read to you now, is not consistent with the theory that you are here to tell us, or rather to use your example, it is a case of harassment or intimidation or victimisation or all those things. Because if you accept your wrongdoing it can't be, in the same breath, wrongdoing in your own eyes which must be punished harshly, and at the same time it is also victimisation. Do you understand the question now?

Ms Mogaladi: Yes, I understand.

Adv Mpofu: Okay, what is your comment?

Ms Mogaladi: I do not have an answer; it is for the Committee to make that determination. If they feel that my evidence is not, it's for the Committee to make that determination.

Adv Mpofu: Okay, thank you, ma'am. Alright. That's fine. When you say, “I do not have an answer”, that's an answer on its own. So the issue then is also that finding of guilt, which you embraced correctly in my perspective view, was also made by an independent chairperson. Just as the other finding of guilt for Mr Madiba who was dismissed, was also made by an independent chairperson. Or let me put it this way, it was not made by the Public Protector. Correct?

Ms Mogaladi: I pointed out earlier on that we had issues about the independence of the chairperson. I can say the first chairperson was not from within the DPSA. I would leave it at that.

Adv Mpofu: Yes, no, that's fine. Let's assume the chairperson was not independent. But that cannot detract from your own acceptance of your guilt. It's just bad luck that your head is such a bad person, correct?

Ms Mogaladi: No, I don't agree with that full statement, Adv Mpofu. There are several questions in that statement. In the first place, I've never said Adv Mkhwebane is a bad person. I've said I disagree with certain things. I just want to set that on the record. Can we just ask questions that do not have those misstatements, because it just makes it impossible to respond to that question?

Adv Mpofu: Okay ma’am. No, I’ll learn how to ask questions next time. But for now, can you just answer this question that I've put to you, which is simply that irrespective of, or let me put it this way, let's assume for a second that the chairperson was biased or drunk or whatever. That cannot detract from your own acceptance of your own actions as put under oath, which we have gone through earlier, correct?

Ms Mogaladi: No.

Adv Mpofu: No, what?

Ms Mogaladi: I do not agree with that statement.

Adv Mpofu: Okay. Alright. So the position of the chairperson, or whatever defects he might or might not have, would detract from your own voluntary acceptance of responsibility, as I've pointed out in those passages, in your view?

Ms Mogaladi: I think the difficulty that I'm having, Adv Mpofu, is that you take different statements that you are trying to connect and not put them into proper perspective. The reason I'm here at this Committee is that the fact that I was charged, I was found guilty and I feel that the whole exercise I was being victimised by the Public Protector. For me, I feel that even the fact that notwithstanding her getting a decision from the chairperson that she appointed as the Office, she still wanted to change that because, in my view, I felt that was a predetermined outcome. She had a predetermined outcome when this whole matter started, so that's why I feel that I went at length to explain that. I really find it difficult because you take different parts here and there, and you try to bring it into, to piece it together. This was the review; we had long passed that stage of the disciplinary hearing. So I really struggle to understand and try to confirm some of the issues that you are raising now. But for me, what is important is that I have presented my case. If the Committee feels that they don't accept it, it is fine.

Adv Mpofu: It is well with my soul. Okay. That's fine ma’am. So you say now she had a predetermined outcome. So basically the chairperson was bought? Or what are you saying?

Ms Mogaladi: No, that's not what I said: “the chairperson was bought.”

Adv Mpofu: Then how did she execute the predetermined outcome?

Ms Mogaladi: Her predetermined outcome is that she wanted us dismissed. When she did not get it from the chairperson, she decided she wanted to deviate from the policy. That's what I'm talking about.

Adv Mpofu: Okay, now, let's go to the issue of Rule 53. One of the reasons why the matter was reviewed successfully was because of the defective Rule 53 record, correct?

Ms Mogaladi: Yes, it was one of the factors, correct.

Adv Mpofu: Yes.

Ms Mogaladi: Not really reviewed successfully – not defended.

Adv Mpofu: Not defended. That had to do with, you accept, I'm sure, as a general statement, that when a Rule 53 record is compiled, that really cannot be placed at the door of the Public Protector? Maybe not even at your door, even at your level. That's something that's done normally by legal and the external attorneys, correct?

Ms Mogaladi: Yes. With the assistance of the investigator in question.

Adv Mpofu: Fair enough. So it's a tripartite responsibility. It’s the investigator, including yourself to some extent, as I say I accept that you are not directly, you are removed. So it's the investigator, chief investigator, and maybe yourself. The people who are at the coalface of the particular investigation will have knowledge as to what documents are needed, what documents are available, what documents are missing. I mean you can't expect an executive authority to be involved at that minute level. If it were a Minister, for example, or the President, there's some litigation in the Presidency, the Presidency doesn't go there and do a Rule 53 record. He is going to depend on the legal people. Internal and external, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Right. Now, so you and the others who reported to you had a duty, at the very least, to point towards and supply the relevant documents. Then the legal people, I accept that you might not be legal people, you might not know what's relevant, what's not relevant. That's not what I'm talking about. But to give them the documentation, and then they will compile the Rule 53 record. That's how it works, correct?

Ms Mogaladi: Look, your initial statement, you said I might not be involved, which I think is the statement that is correct. It's exactly what happened in this matter. So it is correct that I might not be involved, but where I am requested to compile then that statement would be correct. I accept that, initially, it would be Legal with the assistance of the lead investigator in the matter.

Adv Mpofu: Good. So if you are so removed from that process, how much more is the Public Protector who is three levels above you and has to oversee the entire organisation? You are overseeing a particular investigation and others. You and I have now agreed that even you would be removed from that rock face of each particular document. So surely, what lawyers call a fortiori, which means ‘as a matter of logic’, the Public Protector is even further removed than you. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: And yet, one of the issues that has placed her here to sit next to me now is about Rule 53 records, and all those kinds of things which were done by the lawyers and legal advisors from outside. Anyway, you don't have to say anything about that but I'm just telling you as a matter of interest. Alright. Now, the audi letter. Mr Mahlangu, according to you, was asked to give you a written warning, correct?

Ms Mogaladi: Correct.

Adv Mpofu: And he basically defied the Public Protector, correct?

Ms Mogaladi: No, I cannot comment on that. It’s for him to say that he defied the Public Protector. What I know is that I didn't get a warning.

Adv Mpofu: Yes, ma'am. Okay, let's look at it like that. He did not carry out that instruction, because you didn't get such a written warning, correct?

Ms Mogaladi: Yes, correct.

Adv Mpofu: And he, in his own view, decided that the situation warranted only an audi letter and he issued you with an audi letter, not a written warning, correct?

Ms Mogaladi: Correct.

Adv Mpofu: That is the only thing, in your view, which Mr Mahlangu, in terms of these disciplinary matters, did. It was to defy, and no, it's not your word it’s my word. It was to defy, or rather, let's say not to implement the instruction, and just give you a right to a hearing. That's the worst thing he did at the behest of the Public Protector, correct? What is it that you accuse him of? You might feel that he should not even issued you the audi letter, let's put that aside. But I'm saying, on your own version, the worst thing that he did in that episode was not to carry out the instruction of the Public Protector and instead issue you with an audi letter. That's your evidence, correct?

Ms Mogaladi: It is correct.

Adv Mpofu: Thank you. And did you respond to the audi letter?

Ms Mogaladi: Yes. I responded to the person who forwarded me that letter, indicating that a decision has already been made that I should be given a warning so that audi letter is just running though the processes, yes. I didn't get that audi letter directly from Mr Mahlangu. Actually, I asked questions to say what is it that I'm still responding to because the decision of the Public Protector is that I should be given a warning.

Adv Mpofu: Yes, ma'am. We've gone through that, we've passed it. I'm saying, when you responded to the letter and explained that actually, this report or information that's supposed to be missing, there's a mistake, it has actually already happened and so on. That was it. You were not then charged or given a warning or anything like that? There were no further consequences, correct?

Ms Mogaladi: Which information was missing? Can you clarify the question, because you've got missing information, and that audi was not about missing information?

Adv Mpofu: Okay, whatever it was about, when you clarified the allegation contained therein, that was the end of it. There was no further action, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Thank you. That is the purpose, by the way, of audi letters. It’s to give someone an opportunity to clarify or to answer. If they are found to be still wrong, then they might be charged. But if the explanation is adequate, it should be the end of the matter. That's how it works, correct?

Ms Mogaladi: No, not in this context. That's not what I'm saying. I'm saying there was a decision that says, “Give Mogaladi a warning”. Then instead of a warning I got an audi. I did not respond to that audi because I said to them, a decision has already been made. I didn't hear from them. On my part, it means something else. It's not the same as you are putting it.

Adv Mpofu: Okay, that's fine ma’am. When you say I said to them, that's exactly the point. An audi invites you to give a response. That's what audi alteram partem means – give the other person an opportunity to be heard. So when you say after the words, “I said to them”, that was the explanation that you gave. I'm saying after that, was the end of it. Correct?

Ms Mogaladi: Correct. But under the circumstances, it's important to point out that the way the statement was made, and what was later elaborated in the affidavit, is that we would often explain and it was related to the question that the Public Protector did not take into consideration the explanations, no matter how reasonable they might have been. So it's important that it should be noted in that context, to say it was to explain the point that no matter how reasonable, no matter the explanation, then a decision would still be made that you should face the consequences. In this instance, a decision had already been taken. So it doesn't change much and the fact that Mr Mahlangu issued the audi because the Public Protector had already taken the decision that I should be issued with a warning.

Adv Mpofu: Thank you, ma'am. Alright. The next issue is that when it comes to this issue, it looks like from the witnesses that have been here there are two schools of thought. There are those like Mr Tebele, who commend the use of audi letters or at least see it has something positive in giving people a chance before any actual disciplinary steps are taken, of explaining themselves. And like him, rather like you, he also gave an explanation. That was the end of the matter. Adv Raedani did the same. He gave an explanation after receiving an audi letter. His evidence is that was the end of the matter. So that's one school of thought. Then there's the other school of thought that says the audi letter, the opportunity for a hearing, is itself a form of wrongdoing of some sort. I suspect that you fall under the second group. Am I right?

Ms Mogaladi: I do not fall under any of the two groups.

Adv Mpofu: None of the above. Oh sorry, I forgot about that category. Okay. But as a matter of principle, you accept that it's a good thing to give someone an opportunity to explain themselves rather than just jumping directly into disciplinary action. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Thank you. Then is it correct that at some stage, you assigned the task of this report that we have been discussing, from Mr Madiba to Ms Sekele?

Ms Mogaladi: No, I didn't assign that task. What happens is that investigations, files are allocated to senior investigators and investigators in this matter. This file was assigned to Ms Carina van Eeden as a senior investigator. It was allocated to her by the Public Protector on 4 June, and Mr Madiba was the Chief Investigator. In November, Ms Carina van Eeden wrote an email requesting that her reporting levels should be changed.

Adv Mpofu: Then she had a fight with Mr Madiba, or some misunderstanding?

Ms Mogaladi: Yes. They had a misunderstanding between the two of them. So at the time, she indicated that she is comfortable working with Ms Sekele. So that's how Ms Sekele came into the picture. The fact that Ms van Eeden was working under Ms Sekele, that's how she became involved in this as a chief investigator.

Adv Mpofu: Okay, now I understand. So Ms Sekele's involvement in this matter, really, was because Ms van Eeden reported to her once you had reassigned her away from Mr Madiba. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Alright. So effectively then, she joined what we might call the chain of command. It was now you at the top, Mr Madiba, Ms Sekele, and Ms van Eeden. I know there might be other people, but is that how the hierarchy works?

Ms Mogaladi: Correct.

Adv Mpofu: Thank you. Alright, good. Now, so that's what I meant earlier, I think you and I agreed, that Mr Madiba was part of a wider team, starting with you, and probably those people who were below him. Correct?

Ms Mogaladi: Noted, although the question was not asked in that manner. That's why I clarified but you are presenting it correctly now. The question was he was the investigator. It was phrased differently.

Adv Mpofu: Yes, but this one has been raised correctly now. You agree with me?

Ms Mogaladi: Correct. Mr Madiba was part of the team in GGI, yes. He was a chief investigator at GGI and part of the broader branch.

Adv Mpofu: Yes, and Mr Madiba has been used by you, I think to try and portray the Public Protector as a heartless person. But the reality I think you and I have established earlier is that he was earning a salary and it was therefore expected of him to deliver some work, correct?

Ms Mogaladi: The point that I raised was that firstly, let me put this properly. Mr Madiba is one of those diligent and hardworking and he has produced excellent reports in this organisation. I think there is no dispute around that. My point is, when Mr Madiba became sick, there should have been reasonable accommodation by the employer. I am saying what was heartless was, knowing the circumstances of Mr Madiba, for the organisation to put him through that difficulty. That's how I was raising those things. That’s what I said. He died a very sad and a broken man.

Adv Mpofu: Yes, okay. And Mr Madiba became sick long before Adv Mkhwebane became the Public Protector, correct?

Ms Mogaladi: Mr Madiba, yea. He had issues but I think his health deteriorated in 2017 when he had a stroke.

Adv Mpofu: Yes, that must follow because after he had a stroke in 2017, it was not much longer. That happens after you suffer a stroke, in fact, the stroke itself is a sign of deterioration. But the point I wanted to make is that you as the person that he reported to you directly. Correct?

Ms Mogaladi: From 1 November 2018.

Adv Mpofu: Yes. So at that point then you were the person who was closer to monitoring his condition and make the necessary suggestion. For example, if he no longer was able to perform at all. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Now, the independent chairperson, and in this case there's no indication that the chairperson was bought or anything like that. So the independent chairperson found him guilty, obviously fully aware of all these issues that you have put here. In other words, I'm sure he must have put to them all qualifications about his health situation and so on, correct?

Ms Mogaladi: Correct. But I just want to clarify this statement. I never said any chairperson has been bought here. That is your statement, Adv Mpofu.

Adv Mpofu: Okay, that's fine. I withdraw it. But there was nothing wrong. I'm saying this chairperson, unlike your chairperson, was not defective in any manner. At least we have no evidence about that. Correct?

Ms Mogaladi: The only person who can say that is Mr Madiba. I know before he passed on, he had lodged a dispute of unfair dismissal at the CCMA. So I cannot comment without knowing. I cannot comment unless if maybe HR can bring his referrals, I’m not in the position.

Adv Mpofu: Okay, ma'am, you're only allowed to comment on what you know, that's what I'm saying to you. To your knowledge, there was no issue about the defects of the chairperson? To your knowledge. It doesn't mean they didn't exist, correct?

Ms Mogaladi: I don't know. I don't know.

Adv Mpofu: What do you mean you don't know?

Ms Mogaladi: I don’t know if there were issues.

Adv Mpofu: No, I'm not asking you if there were issues madam. I'm saying to your knowledge, there were no issues about the chairperson. To your knowledge. There might have been issues, 1000 of them, but to your knowledge, you are not aware of any. Correct?

Ms Mogaladi: My answer is I do not know; I don't want to comment.

Adv Mpofu: You don’t know whether you know?

Ms Mogaladi: Whether there were issues.

Adv Mpofu: Sorry ma’am. When you say you don't know, you mean you don't know whether to your knowledge, there were issues or not? What is that?

Ms Mogaladi: I have just said, I do not know whether there were issues or not.

Adv Mpofu: And neither do I. I’m asking you a different question, but you're answering a question that has not been put to you. I’m not asking you whether you know if there were issues or not, I'm saying to your knowledge, none of those issues were ever raised. To your knowledge?

Ms Mogaladi: Look, I did not discuss the issues about the independence of chairperson with Mr Madiba.

Adv Mpofu: Therefore the answer is yes.

Ms Mogaladi: If he were still alive, he would be the best person to respond to that question. Or the people who has a copy of his referral to the CCMA might be in a better position to respond to that.

Adv Mpofu: Okay. Alright. The performance agreement, you had signed a performance agreement with Ms Baloyi. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: In turn you had signed another performance agreement between yourself and Ms Sekele, for example. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: I assume you also had another one between you and Mr Madiba. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Can go to page 54 of Bundle H, folder 24, item 24.2. Sorry about that. Started at 33 please. This is just to confirm the chain of command that you and I discussed and the span of control over performance – that it cascades down. So I'm not going to take you too much to the content. That is the performance agreement signed between Ponatshego Mogaladi, that's yourself, and Ms Basani Baloyi. That combination, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Then part of it deals with the KPAs and the KPIs, and let's go to page 38 quickly. The first one is Strategic Capability and Leadership. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: That includes things like what we were talking about – the deadline setting, developing detailed action plans to execute strategic initiative, translating strategies into action plans, that means putting deadlines. That was one of your jobs, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Next one is even clearer, its Programme and Project Management. That you and I have already discussed that obviously involves setting deadlines. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Yes. And by the way, while we're on this, is it true that – you remember earlier we spoke about Dashboard and how it changed face and all that – you were required to have, effectively, your own Dashboard meetings with your team before the main Dashboard. Correct?

Ms Mogaladi: Part of our internal process is to have Dashboard at branch levels.

Adv Mpofu: Good. So in your Dashboard meetings, you did them the correct way. Not in that slapdash manner?

Ms Mogaladi: Yes, correct. At that time, like I said, the focus was on cases older than two years. Yes, they were being discussed.

Adv Mpofu: Yeah. But even now, when you do your own Dashboard, you do it the correct way. Correct?

Ms Mogaladi: Yes, correct.

Adv Mpofu: Then when you go to the main Dashboard meeting, it's simply to basically collate that information from your own Dashboard and then report it there. Correct?

Ms Mogaladi: No because the focus is different. At our Branch Dashboard meetings, we don't just focus on the deadlines for each and every case. Yes, some of those meetings will be a combination of where we discuss the draft reports or the draft section 7(9). So the focus is different, we don't just focus on the numbers and problems.

Adv Mpofu: Yes, no, you do it the right way. How it should be done, correct?

Ms Mogaladi: I do it in line with the Office processes.

Adv Mpofu: Yes. Okay. So your next deliverable is Financial Management. Let's pass that. Then it's Change Management, Knowledge Management, then the Service Delivery Innovation, number six. So there's a specific focus on service delivery and that relates to the complaints that you and I spoke about where we were saying there were complaints about you. Let's not use the word 'many'. Let's say there were complaints that you were aware of which were lodged about you specifically or your unit, correct?

Ms Mogaladi: Correct.

Adv Mpofu: Do you know Mr Nyathela, who used to complain about you a lot?

Ms Mogaladi: Mr Nyathela complains about almost everyone who has ever handled his case in this organisation and everybody, yes. Even Parliament.

Adv Mpofu: Okay, yeah. But those people are not here. But we'll ask them when they come here. So did Mr Nyathela complain about you, among others?

Ms Mogaladi: Personally, no. Mr Nyathela complained about some of our cases.

Adv Mpofu: Not you?

Ms Mogaladi: No, no, no, no, no.

Adv Mpofu: Bur you said he complains about everyone?

Ms Mogaladi: Can I clarify the complaint of Mr Nyathela? Previously I dealt with Mr Nyathela’s cases, but when I came back there was a matter that was being handled by one of the senior investigators in the Branch. Mr Nyathela was unhappy about some of the issues and especially the time that it was taking for that matter to be finalised. So personally, for Mr Nyathela to say I have not engaged with him, I do not have any complaint with Mr Nyathela. Mr Nyathela knows that he can even phone me. I get regular messages even on my phone from Mr Nyathela, but the complaint was the time that it was taking for his matter to be finalised.

Adv Mpofu: Okay. Alright. Thank you. And you agree that there were other complaints about you and other people. Alright. So then the next one is People Management and Empowerment. Okay, we can pass that. Number nine is Client Orientation and Customer Focus, that also would deal with the complaints and all that. The last one is Communication. But the important one is Honesty Integrity, it includes something like admitting your own mistakes and weaknesses. Let's just say that's not your strong point from today's display, correct?

Ms Mogaladi: I fully do not agree with you Adv Mpofu. That is your viewpoint. I do not agree with that.

Adv Mpofu: Okay, good. Then, can you put up an email, I don’t know its reference. I think it's Bundle H, item 24.3, number 475.

Chairperson: That will be the last point you put up.

Adv Mpofu: Chair, please. I'm pleading with you. I'm wrapping up. But let me just wrap up a few. I'll just ask one, one, one on these other issues, please Chairperson. I don't want to have other witnesses who have to come back. I won’t be long, Chair. That's 475, do you know about that complaint involving Ms Mangena?

Ms Mogaladi: Yes, Ms Lerato Mangena. I know her very well as a complainant in the Office.

Adv Mpofu: As a complainant. Okay. This is one of those complainants that involved you, correct?

Ms Mogaladi: It was a complaint that was being investigated by one of the senior investigators in the Administrative Justice Centre and Service Delivery branch.

Adv Mpofu: Yes, but it also involved your conduct. I know it was a complaint. Correct?

Ms Mogaladi: Yes, this email was brought to my attention during the lunch break. I read through it – her complaint about me. I read it.

Adv Mpofu: Okay. This complaint involved your conduct. Yes, no?

Ms Mogaladi: Correct.

Adv Mpofu: Thanks. If you go to 476. The specific issue about you is at paragraph four from the top. “Ms Ponatshego Mogaladi met with me in March 2017 and assured me that the matter is on her radar and she will do her best” and so on. Then “she did not respond to any of my emails”; “could not access her in June” and so on. Then below, two paragraphs later, “I have reported Ms Mogaladi’s conduct to you before and she continues to carry on with the same behaviour. Kindly please advise. What should I do now? Where to from here?” and so on. All I'm saying for now is that was a complaint to do with your alleged conduct. Correct?

Ms Mogaladi: Correct. According to this email.

Adv Mpofu: Yes. Alright. These are the kinds of things that need to be managed by the people that you report to obviously, if someone complains about you, correct?

Ms Mogaladi: Adv Mpofu, the fact that Ms Mangena will do this doesn't define my conduct. It's not my work ethic the fact that she wrote all these things. This is one of the cases that, notwithstanding her not having a good case, it's one of those matters that was successfully resolved by the Office. So this is not a reflection and it's not a measure on my performance. She might have written those things; that’s her viewpoint. I do not agree with the content of that.

Adv Mpofu: No, that's fine ma’am. We are together on that one. I'm not saying it was merited or meritless. I don't know. I’m just saying the Office received such complaints about you, merited or unmerited, correct?

Ms Mogaladi: It received Ms Mangena’s complaint about me.

Adv Mpofu: Alright, okay. The Public Protector will give evidence about other such complaints. I don't have time now unfortunately to pursue that.

Ms Mogaladi: Chairperson, can I just ask a question about the process? I'm asking Chairperson because it seems…

Adv Mpofu: No ma’am. Okay, well, Chairperson, put the stopwatch.

Chairperson: Ms Mogaladi, you want to say something?

Ms Mogaladi: Can I just get clarity on the process because it seems as if now there is a process to interrogate my conduct. If this is a 2017 email, if the Public Protector, probably in terms of the process, there should have been a process internally. I just need clarity as to the email of 2017 – a customer service complaint – because it now seems as if my conduct is under scrutiny.

Adv Nazreen Bawa: The witness is entirely correct because I didn't want to interrupt Adv Mpofu, but if there is a complaint as to whether the witness had been guilty or had any form of infraction, to which her employer took no action against her, then it doesn't seem to serve any purpose to be taking the witness through a litany of customer service complaints, which the employer didn't elevate to a point of wanting to take any action against the employee. She's not having to answer to this Committee in respect of any of her actions.

Adv Mpofu: On that issue I’m entitled to respond, Chair.

Chairperson: You can respond but I also want you to then proceed to the next point and wrap up.

Adv Mpofu: I will, Chair. I think the witness and Adv Bawa are missing the point completely. I was at place to say that, whether it had merit or no merit, that's not what we are dealing with now. I'm saying that the only issue is that such complaints were received. That's all, really. So whether some of them might all be from mad people, that's not the point I'm interrogating now. I'm simply saying that there were those complaints that were received. The witness has said that they were received. Neither I nor you would have any means, or the Committee, to interrogate whether this one... I don't know from where Adv Bawa knows that it was not acted upon. That has not come out but maybe she knows something that I don't know.

Chairperson: Can you conclude now?

Adv Mpofu: Yes. Thank you, Chair. Alright. I’ll move on to something else anyway. Just quickly before I'm stopped, the waiver that you received from the Acting Public Protector? When did you receive it, which was addressed to you?

Ms Mogaladi: I received it last week Friday.

Adv Mpofu: Last week Friday. Okay, that would be before you did your final affidavit, correct?

Ms Mogaladi: Yes, correct.

Adv Mpofu: Because your affidavit was on the 21st and you would have then received it on the 19th. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Yes. It says that it's signed by the Public Protector. But I've just asked her – she doesn't remember signing such a letter. It's wrong to the extent that it says it comes from the Public Protector. It's not correct. Right?

Ms Mogaladi: I have no comment on that. That question can be taken with or without that document.

Adv Mpofu: No ma’am, it’s your letter. I'm asking you to the extent that the letter was sent to you, it says it is from the Public Protector, you'd agree that is not correct. Or not? Public Protector, as you call Busisiwe Mkhwebane.

Ms Mogaladi: Adv Mpofu, I'm not going to respond to that question; I don't want to enter into that debate.

Adv Mpofu: It’s not a debate. Did you receive the letter?

Ms Mogaladi: Yes, I received the letter.

Adv Mpofu: Was it addressed to you?

Ms Mogaladi: Yes, correct.

Adv Mpofu: Was it not from the Public Protector?

Adv Bawa: Sorry, Adv Mpofu. I'm sorry to interrupt you; the letter says Acting Public Protector.

Adv Mpofu: Thank you very much. Was it not from the Public Protector ma’am?

Ms Mogaladi: Adv Bawa has just clarified where the letter is from.

Adv Mpofu: No, forget about Adv Bawa. Answer the question please. Was it not from the Public Protector?

Ms Mogaladi: Chairperson, I am not going to respond to this question.

Chairperson: Okay, I hear that.

Adv Mpofu: Okay, well Chair, is that how it rolls now? Witnesses are allowed not to answer questions. Okay, that's fine. Then we established yesterday that your investigation of PEU took about four to five years. Will you answer that question if you are so inclined?

Ms Mogaladi: I explained the circumstances in detail yesterday. I explained it more than once. So I take it it’s on record.

Adv Mpofu: So you’re not going to answer that one either?

Ms Mogaladi: I responded even to that, I explained it fully. I've already answered that question.

Adv Mpofu: So you are refusing to answer it again?

Ms Mogaladi: I'm not refusing, I'm saying I've already responded to that question more than once, Adv Mpofu.

Adv Mpofu: Yes, but I’m asking you to again. So if you're not going to respond, just say so. I'll move on because that’s how we operate.

Adv Bawa: Chair, Adv Mpofu is now repeating questions.

Adv Mpofu: So what? Sorry, what is the objection? In cross-examination I can repeat a question as many times as I want.

Chairperson: That's fine. If Ms Mogaladi is indicating to you that she's has answered the question, I want you to move.

Adv Mpofu: Yes, no, I will. But I'm noting the fact that she's refusing to answer the question.

Adv Bawa: She is not refusing.

Chairperson: She has answered the question, that's what she’s indicating.

Adv Mpofu: No, we would be long gone now if she just simply answers the question.

Ms Mogaladi: Chairperson, can I be protected? I responded to this question, probably answered the same question more than three times. I've just indicated to Adv Mpofu that I’ve already responded to this question. I’m not going to answer it again. I'm not refusing. I've stated that I answered it more than three times.

Adv Mpofu: Okay ma’am, well, for your information, when you say I'm not going to answer the question, that's called a refusal, but that's fine. You said you were also involved in the Bosasa / CR17 matter, correct?

Chairperson: That’s a new matter you are starting now. I want you to close.

Adv Mpofu: Okay, sure. No, I thought you were saying it’s a matter that’s not covered by the evidence. Thanks, Chair, I will. Correct, ma'am?

Ms Mogaladi: Correct.

Adv Mpofu: That's the matter regarding the donation to CR17. You accompanied the Public Protector in interviewing President Ramaphosa on that matter, correct?

Ms Mogaladi: Correct.

Adv Mpofu: And you spoke about the issue of the other one where you wanted to portray the Public Protector in a particular way. When you went to Polokwane or Limpopo and you had a bereavement, the Public Protector, according to you, expressed her sympathies duly. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Right. Did you then come back to the Office?

Ms Mogaladi: I came back to the Office, I think on Thursday to come and apply for leave, which was the same day that I got a message from her.

Adv Mpofu: Yes, correct. No, I wanted just to clarify that because it's being portrayed differently in the public domain. So you had the bereavement, you came back to the Office, and while you were at the Office, the Public Protector then asked for some work to be delivered. Then I think you said you went back to… the funeral was on Saturday. After that you were then on leave, supposedly on compassionate leave or whatever. But you were on leave, correct? After that?

Ms Mogaladi: Correct.

Chairperson: Thank you Adv Mpofu. That's where we are ending it. I've stretched it. I've been with you. I've stretched it, you can’t blame me.

Adv Mpofu: No, I can, Chair. Because this is a very important issue that's being misrepresented in the public about the communication. Now it's becoming clear that the request was made when the person was at work. It's a very important issue, Chair.

Chairperson: What issue?

Adv Mpofu: This one that I'm wrapping up now.

Chairperson: Two minutes.

Adv Mpofu: Okay, thank you Chair. Alright. So then Ms Mogaladi, the sequence of events then is as follows. You asked to be released to go to the hospital because your loved one was not feeling well. Then the Public Protector expressed all the sympathies that were in that WhatsApp exchange between you to you and the family. Correct?

Ms Mogaladi: Apologies, I didn't realise that I was muted. Can you repeat the question Adv Mpofu?

Adv Mpofu: The sequence of events is as follows. Okay, I'm just going to, I want to ask it bit by bit, you will forgive me. I'm just going to give to you and then you will just answer at the end. The sequence of events is as follows. You went to visit or got permission to visit your loved one who was not feeling well. That's one. You then informed the Public Protector that the person was in a serious condition and eventually you informed her that the person had passed away. Then at all those points she expressed her sympathies with you and your family. Correct?

Ms Mogaladi: Not entirely correct. The first part is not correct, Adv Mpofu. I was not really per se visiting a person. There was an emergency which I alerted the Public Protector to. Visiting a sick person in hospital, it's something else. My message on this matter it's detailed in the WhatsApp message. So the first part I don't agree, the last part I agree.

Adv Mpofu: Okay, fine. That's the important part. Then after that, you came back to Gauteng to work, correct?

Ms Mogaladi: No, I didn't come back to work. I was coming to the Office to come and apply for my leave because…

Adv Mpofu: That's fine ma'am. You came back to the Office, correct?

Ms Mogaladi: Yes, correct. I came back to the Office on Thursday morning to complete the forms.

Adv Mpofu: Yes. The Public Protector then sent you, because there were deadlines or releases of documents and whatever, she will explain to the Committee. I don't want to take time as to what was happening at that time. But she then asked you for various documents that are listed in your WhatsApp. Correct?

Ms Mogaladi: Correct.

Adv Mpofu: Yes, then you went back to Limpopo for the funeral, correct?

Chairperson: Just respond Ms Mogaladi.

Ms Mogaladi: Can you repeat the question?

Adv Mpofu: No, it's fine. You then went back for the burial or for the funeral, went back to Limpopo. Correct?

Ms Mogaladi: The following day, correct. Yes.

Adv Mpofu: The following day. Thank you, ma'am. Thank you, Chairperson.

Committee Questions – Witness: Ms Ponatshego Mogaladi

Ms M Sukers (ACDP): Thank you for coming to address the Committee. My first question to you, would you agree that you were dealing with complex multi-year projects when you dealt with reports?

Ms Mogaladi: Correct.

Ms Sukers: And so when working on a project, the factors that are commonly listed, I'm going to list some of them that needs to be managed: scope statements, schedule, budget requirements, quality criteria, project resources, stakeholders, communications plan, procurement strategy and risk management. Some of it I saw in the performance agreement that was brought up earlier by Adv Mpofu. So therefore, deadlines or schedules are only one element of a properly managed project. Do you agree?

Ms Mogaladi: I agree.

Ms Sukers: So in fact if you want to deliver a high-quality product by the deadline, if you neglect the other nine elements, while the schedule is crucial, this sometimes as to be reset to achieve quality. Am I correct?

Ms Mogaladi: Correct.

Ms Sukers: There is no point to deliver a bridge on time if it is going to collapse when the first person steps on it. I'm specifically now referring to the scenarios that were painted earlier today. Would you agree that these other factors are crucial? This is what you were pointing out when questioned about deadlines?

Ms Mogaladi: Yes, it is correct.

Ms Sukers: In terms of that scenario, all of those elements that I've painted, was there any time when there was a discussion around those elements that are affecting the projects that you were working on? And specifically the crucial one that was discussed at length today? Was there any point where there was a discussion between you and the Public Protector to speak about the other factors that was affecting deliverable on the project?

Ms Mogaladi: No, we never had that discussion, per se, but within ourselves as a team we had those discussions, but with the Public Protector we never had the discussions.

Ms Sukers: Can you tell me how often was training on project management conducted in the Office of the Public Protector South Africa?

Ms Mogaladi: I think it was conducted, probably there had been. I would not be able to recall. I know, myself, I had attended the training, but I think it was more than once for the different groups within the Office.

Ms Sukers: Okay, great, that takes care of the other questions. Would you say that the practice of professional project management was being driven by the Public Protector within the Public Protector South Africa? Within the Office?

Ms Mogaladi: Yes, correct.

Ms Sukers: So if we consider that you have that environment, was consideration given to failures? Where failures occurred and you need to do course correction, and you need to expand on resources or take consideration of the other elements, specifically, the people element? Were there ever such intervention points for consideration?

Ms Mogaladi: No, not to my knowledge.

Ms Sukers: So it has been put to you that productivity was a problem within the Public Protector South Africa. How many process engineering and productivity improvement projects did the Public Protector, along with the CEO, champion to address the productivity gap?

Ms Mogaladi: I don't recall any of such except like, for instance, where there would be the interventions to deal with those cases older than two years. But to go into the details that you are talking about, I don't recall that was ever done in the organisation to the level that you are talking about – the high level where you are really going to drill in – save to say the cases must be finalised to go and draft the project plan. But to go really into the root cause and identify and follow those concepts of project management, I don't recall that was ever done unless if it was done during the period of my absence from the Office.

Ms Sukers: Okay, thank you. Did you and other staff have annual performance improvement plans that identified training and development needs that the Public Protector South Africa would address to enable staff to be more efficient and effective?

Ms Mogaladi: Yes, we did.

Ms M Sukers: I saw as one of your key performance indicators, change management that you were assessed on. Was there any capacity interventions to enable you as an executive to effectively deal with those kind of improvements and change elements needed in any organisation?

Ms Mogaladi: Yes, there was training conducted around that area in terms of change management and leadership.

Ms Sukers: And was it applied?

Ms Mogaladi: Yes, it was applied in my area. I applied it. It was applied.

Ms Sukers: And was it a conversation that you had as well with your immediate superiors? With the Public Protector for instance? Did you have those conversations? Because it's, as you know, it is moot if those elements are not really embedded upwards and downwards. So my question is, did you have that conversation with the Public Protector?

Ms Mogaladi: There was a session that we went through with the Public Protector, as the entire management team, where we had that conversation. It was facilitated by an external person. But on a day-to-day basis, the upward, I think from around 2019 onwards, the environment was no longer allowing for those discussions to take place because the form of our engagement was changing. But previously, we did.

Ms Sukers: Thank you for that. I'm going to move to Mr Madiba. You've highlighted I think, to a certain degree, one could hear yesterday, the impacts and the emotional impact certainly of Mr Madiba’s condition and how it affected you as well. Can you confirm the following from your evidence? Mr Madiba had a stroke in December of 2017, was partially paralysed and could only type with one hand and needed assistance to turn pages; but these disabilities in no way impacted Mr Madiba’s mental abilities, which remained at the highest level, would you say?

Ms Mogaladi: Correct. It didn't affect him. It was only physically, but mentally he was excellent. He was brilliant.

Ms Sukers: Mr Madiba was concerned that if he was not working, he would not be able to afford medical care. Is that correct?

Ms Mogaladi: Correct.

Ms Sukers: Did the Public Protector know about Mr Madiba’s disabilities when he was assigned to a high profile and long-delayed report?

Ms Mogaladi: Yes, Public Protector was aware.

Ms Sukers: Was any consideration given to provide Mr Madiba with assistive technology, such as dictation software or other tools that would allow him to perform to the required standard. Was any of those considerations given and can you unpack that for us if any was given?

Ms Mogaladi: I don't recall whether that was ever given. The assistance was the typist who could type for him but I mean that still required that he should write and he said it equally takes the same time. But the dictation equipment, we did not have such in the Office.

Ms Sukers: So what policy and procedures are in place in the Public Protector South Africa to accommodate persons with disabilities? If those policies exist, what policy was followed in Mr Madiba's case?

Ms Mogaladi: We do have a policy that accommodates disabled people. With regards to Mr Madiba, I'm not sure to what extent it was followed when he came back from his sick leave, because I started interacting with him almost a year after he had a stroke. Initially when he came back, I wouldn’t know to what extent and what were the engagements and discussions between him and HR.

Ms Sukers: Chair, I'm aware that I may be on my last minute, so I just have one more issue that I want to bring up. What was the approximate cost of legal fees that you incurred in taking your dismissal on review?

Ms Mogaladi: I would not be able to provide a fully quantitative amount because in the middle of the matter, the PSA took over and paid our legal representatives. I think, between myself and Ms Sekele, if I submit the amount correctly, we might have spent between about R80 000 or R100 000 that was paid towards the disbursements of the initial attorneys who was representing us and the advocate. But from July 2020, PSA took over and paid.

Ms Sukers: Was your choice to challenge only the sanction due to the lack of funds That this was the cheapest and most effective legal tactic that you could use?

Ms Mogaladi: Look, it was the easiest taking into consideration the time that we spent on this matter. It was the easiest and it was the quickest for us and at that time our focus was on securing our job, and so we had to choose the strategy of focusing on something that will secure us a job at the time – which was to challenge the Public Protector’s decision to change the sanction.

Ms Sukers: This is my last question, Chair. How did all of this impact your family?

Ms Mogaladi: You know, it was not easy. I have an older child who suffered badly. She was depressed. My mother cannot fully recover even to date. She became very sick; she was hospitalised for a while but she is much better but she has not fully recovered to her normal self. I think this is over and above myself. It was a very difficult, painful and traumatic period for me. It affected my health both physically and emotionally, so it was a very difficult period.

Ms Sukers: I understand. Thank you.

Dr M Gondwe (DA): Let me start with the first question. You state in paragraph 141 of your affidavit, in relation to the SARS Investigative Unit investigation, that you recall having a meeting with a complainant in that matter on 8 December 2018. This meeting was held at the behest of the complainant. Please confirm to this Committee who the complainant was in the matter, why the complainant requested the meeting and what was discussed during that meeting?

Ms Mogaladi: Okay. There was a complaint that was lodged by the complainant in this matter. I’ll deal with the last question. He indicated that he wanted to come and present the evidence to the investigation team. There had been an exchange of emails acknowledging receipt of the complaint, and he requested an opportunity to come and present the evidence. So the discussion was around the allegation because the complaint had several allegations in it. It was not only about the SARS unit – there were several other allegations. So the discussion centred around the complaint – those allegations. The name of the complainant? I don't know, I think I will take directive from the Chairperson, because there seems to be issues around the disclosures because initially when I did the affidavit I had discussions with Adv Bawa, the name centred around the issue of confidentiality. So I'm not sure if the issue has been settled, whether I can disclose those details. I would take guidance from the Members and the Chairperson on whether the issue have been settled If I can disclose the name.

Chairperson: Go ahead.

Ms Mogaladi: Okay, the complainant was Mr Floyd Shivambu.

Dr Gondwe: Thank you Ms Mogaladi. You state in the same paragraph 141 of your affidavit, that in the course of the meeting with the complainant, Mr Floyd Shivambu, the complainant sent you a copy of the classified version of the IGI report via WhatsApp and email. When you eventually open this document on your email, you realise that the document was top secret or classified. In other words, it was a document that was not supposed to be in anybody's position under normal circumstances. Please confirm if you found it disturbing or concerning that the complainant, who is an ordinary citizen, and most likely has no top-secret security clearance, was in possession of this classified document and had now sent it to you.

Ms Mogaladi: As I stated in my affidavit, I didn't go beyond the first few pages because I thought it was an SSA document. I didn't per se relate it to the SARS unit. So I was concerned, that is why I never opened the document further. I did not print nor disseminate it further because the first pages indicated that it was secret from the second page.

Dr Gondwe: Thank you. So you are confirming that you were concerned. And did you feel disturbed as well?

Ms Mogaladi: I was concerned. Disturbed? Not really disturbed. I was just concerned about the implications of just having that document sent to me. So I was concerned.

Dr Gondwe: Can you just elaborate on your concern? I mean where did it emanate from? From the fact that the document was top secret or classified? Or that it was in possession of someone who you were not sure has a top-secret clearance?

Ms Mogaladi: No. My concern was around the fact that it seemed, when you read the headings, it seems as if it is an SSA secret document. With regard to the complainant, I didn't know whether he had security clearance. So it was more around the document itself. The fact that it might be something that, as it stated, was secret. So my concern stemmed from the fact that it was a secret document.

Dr Gondwe: Thank you. In paragraph 143 of your affidavit, you state that you were included in emails relating to the IGI report, including an email dated 20 February 2019, indicating that the Minister of State Security at the time had delivered a letter to the Public Protector expressing her sentiments on the Public Protector’s position of this IGI report. Did you agree with the sentiments expressed by the Minister of State Security in the letter? You know, with respect to the Public Prosecutor’s possession of the report? Are you able to confirm if Mr Mataboge, the late Mr Nyembe, and Ephraim Kabinde all had a top-secret clearance at the time?

Ms Mogaladi: Okay. With regard to the sentiments of the of the Minister, I think at the time the question was whether or not, because the Public Protector was requesting a copy of that matter, The debate that we had in the organisation was to what extent can documents of that nature be afforded to the Public Protector for purposes of investigation. Hence, I think even in that particular email it says by saying, “can we get legal advice on whether the information could be provided to the Public Protector". Because what we were looking at was a broader discussion around similar complaints, not necessarily this one, to say to what extent if we are dealing with such investigations can the Minister and the Department cooperate with the with the Public Protector. So I think the clarity that was sought, it was around that cooperation between the Office on such issues. As regards the security clearance of Mr Mataboge, Kabinde and Nyembe, I don't know about that. I don't know because we don't often discuss such agents. So I don't know.

Dr Gondwe: Alright, thank you. You state in paragraph 144 of your affidavit that you understood from the Public Protector’s instructions to the Legal Services Manager, that the Public Protector also had access to the IGI report. Are you able to confirm if the Public Protector had access to the same version of the report that the complainant sent to you via email and WhatsApp?

Ms Mogaladi: No, I'm not in a position to confirm because I had never seen that document that was in the Public Protector’s possession. The one that I had; I never went into the details so I would not be able to confirm because I did not read the one that was sent to me. I have not seen the one that was in possession of the Public Protector.

Dr Gondwe: Thank you. We heard evidence from Mr Tebele last week, that the Office of the Public Protector maintained close links or ties with the State Security Agency. And Mr Ndou also informed this Committee that there was open communication between the Office of the Public Protector and the State Security Agency. This is under Adv Mkhwebane’s tenure. We also heard evidence of how someone was seconded to act as CFO from the SSA, and how the SSA sat on the appointment panel that appointed Mr Baldwin Neshunzi. Would you agree that indeed the Office of the Public Protector under Adv Mkhwebane maintained close links or relations with the SSA? If you agree, please elaborate and be specific in your response.

Ms Mogaladi: Okay. I agree that based on my experience, the level of interaction and involvement by the SSA increased during the tenure of the current Public Protector and based on those cases, because at some stage we even went to the extent of requesting or getting their quotation to develop a case management system for the Office. So I would agree that the involvement was more extensive than during the previous periods.

Dr Gondwe: Are you able to confirm who acted as CFO, who was seconded from the SSA?

Ms Mogaladi: I think that's the surname was Menzelwa. I'm trying to remember the first name, the surname was Menzelwa.

Dr Gondwe: Vusi Menzelwa?

Ms Mogaladi: Yes, it's correct.

Dr Gondwe: Alright. Thank you very much. We heard evidence from Ms Baloyi where she informed this Committee that the PP, Mr Mahlangu and the late Mr Nyembe, perpetuated a culture of intimidation, fear, and mistrust. Do you think that these links and open communication that the Office of the Public Protector had with the SSA fuelled that culture of fear and intimidation and mistrust within the Office of the Public Protector or contributed?

Ms Mogaladi: I will not really confirm whether it was that because I wouldn't know what really influenced those concerns of fear and intimidation. So I would not really confirm that it was because of the involvement of the SSA. I'm not in a position to confirm.

Dr Gondwe: Alright, thank you. Did you ever get the distinct impression that Adv Mkhwebane was being influenced by external parties outside of the Office of the Public Protector, or was furthering a particular agenda in her conduct, especially her conduct in relation to how she wanted investigations conducted and investigate the content of investigative reports?

Ms Mogaladi: No, not really. I think my impression has been that probably maybe the Public Protector was passionate with certain matters in terms of pushing them, but whether it was based on the external influence, I would not really confirm that it was based on the external influence. So I would not be in a position to do that.

Dr Gondwe: Thank you.


Mr K Mileham (DA): We've heard Adv Mpofu on several occasions refer to investigators as being highly paid. Do you know how much the Public Protector earns annually?

Ms Mogaladi: I don't know. I don’t know the salary.

Mr Mileham: Okay. Would it surprise you if I said it was R2.3 million per annum with a golden handshake of approximately R10 million when her term ends next year?

Ms Mogaladi: I know about the gratuity part, but the current salary I don't know. But the gratuity I know that it is payable.

Mr Mileham: Okay. Well, that brings me to my question and it's along the lines of what Adv Mpofu asked you earlier. Do you think the South African public gets value for money from her, considering the number of court judgments against her, the massive increase in litigation costs and the number of reports that have been set aside?

Ms Mogaladi: Okay. Whether the public gets value for money, I think there is the Office, which I believe in my view, there is a team of hardworking people. But I think with regard to the Public Protector, I would not really be entirely in a position to comment because you need to look at the organisation as a whole, as well as the Public Protector as the head of the institution. But with regard to the high legal costs, I think we could do better as an organisation. In terms of performing and delivering I think we are doing well as an organisation, but the legal costs we could do better.

Mr Mileham: Okay. With regard to your Annexure PM2, the Public Protector instructed that verbal warnings be issued against Mr Madiba and Ms Sekele. Was there any formal disciplinary process followed in that regard?

Ms Mogaladi: No, there was no disciplinary process that was followed.

Mr Mileham: So there were no audi letters? Okay, but didn't Adv Mpofu just say it was a good thing to get such audi letters rather than jumping into a warning or disciplinary processes straightaway?

Ms Mogaladi: Yes, he said that. But in this instance, the point that I was explaining was that the Public Protector made the decisions without following that step of requesting people to make representations.

Mr Mileham: At paragraph 64 in your affidavit, you stated Ms Sekele became involved in the FSB investigation in December 2018. So what was the Ms Sekele's warning for in the handwritten note on 2 November 2018?

Ms Mogaladi: Yes, it was not clear as to why she had to be warned and what did she do wrong at that point in time, because it was based on that memorandum that was drafted by Madiba and there was no reference to Ms Sekele in that memorandum. He was talking about the two investigations that he acknowledged that he was working on with the two investigators. There was no reference to Ms Sekele so it was not clear why Ms Sekele was referred to the Public Protector’s handwritten note.

Mr Mileham: Okay, so after that Adv Mkhwebane then writes to Mr Nemasisi, asking for his legal opinion on the section 7(9) notices. She does that on Saturday 24 November. And she asks more specifically about the reservations raised by Mr Madiba. He responds on Tuesday 27 November. But by that stage the Public Protector has already signed and issued the section 7(9) notices the day before on Monday 26 November. So it isn't even a full working day. I mean it's the same working day – Monday being a working day. Is that correct? Is my timeline correct?

Ms Mogaladi: It is correct.

Mr Mileham: So is it reasonable to ask for a legal opinion and then act without considering such an opinion?

Ms Mogaladi: No, it is not reasonable.

Mr Mileham: Was there any reason the section 7(9) notices couldn't have been delayed by one day until after Mr Nemasisi had issued his opinion?

Ms Mogaladi: No, it was not really. For me, I did not understand because that matter had been pending for a while, so a day would not make much of a difference in this matter.

Mr Mileham: Then those reservations that were raised by Mr Madiba and subsequently by Mr Nemasisi – they became the subject of a court case which the Public Protector then lost. Is that right?

Ms Mogaladi: Correct.

Mr Mileham: I want to turn now to the IGI report that Dr Gondwe was talking about. When that report came into your possession, what steps were taken to secure the report by yourself or by anyone else in the Office of the Public Protector?

Ms Mogaladi: That report, I can only talk about myself – the one that was sent to my email. I did not print the report or disseminate it further; neither did I share it with the investigation team. So it remained on my email. So it was never sent; nothing was done about it.

Mr Mileham: Now that was on 8 December 2018. But then on 31 January 2019, you had a meeting with the IGI. I want to know this, was the matter of that report discussed in that meeting?

Ms Mogaladi: Yes, it was indicated in that meeting because I think part of the discussion was that the Public Protector had indicated that an anonymous complainant had dropped a copy of that report in an envelope at the reception. So there was discussion about that matter. What I noted is that over and above the report being emailed to me, it was also dropped at reception. But like I said, I had not read that in full detail. When you read that report from the first few pages, you would not really know that it is the SARS unit report because the heading is different. It talks about State Security. So what was in my possession, initially I thought that it was just one of the SSA reports. That is why I never even went beyond those pages. It was when the evidence leaders alerted me that then we started comparing the first few pages and I confirmed that it was a similar report.

Mr Mileham: In that meeting, did the IGI know exactly what report was being discussed? What the nature and details of that report were?

Ms Mogaladi: Yes, the IGI was aware of the report that was being discussed based on the interaction during the meeting.

Mr Mileham: Was any attempt made to verify the contents of the report that was in the possession of the Public Protector, with the version that the IGI had issued?

Ms Mogaladi: At the stage of my involvement in this matter, no. I don't know if maybe subsequent to that it was ever done. Because at the time, the IGI had not handed over the report to the Public Protector. That meeting of the 31 January 2019, the IGI was reporting to the Public Protector that he has received the Public Protector’s request for that report, and he was briefing the Public Protector on the process that he was following to get the Minister to release that report or to get the DG to declassify that report. So the discussion was around how is a copy of that report going to be made available to the Public Protector at the time.

Mr Mileham: Just to be 100% clear, the copy that the Public Protector had was an unredacted report, is that correct?

Ms Mogaladi: I don't know. I have never seen a copy of the report that was in the Public Protector’s possession. So I cannot confirm whether it was redacted or unredacted because she didn't share it with me in that meeting.

Mr Mileham: Okay. Were you involved in the drafting of the CIEX report and the Rogue Unit report?

Ms Mogaladi: Okay, the CIEX, I was not involved at all in that matter. The SARS unit, I was involved initially in the early stages of the investigation because the team was reporting to me up until around the end of Feb. Then from there they were reporting directly to the Public Protector on that matter.

Mr Mileham: Okay. Did you read the report before it was issued?

Ms Mogaladi: No, because I was no longer involved in the investigation. Even the section 7(9), when it was issued, I was not involved.

Mr Mileham: Okay, my last question. The IGI report that was relied on in the Rogue Unit report, the so-called Rogue Unit report, that was this one that had been handed in at the reception of the Public Protector. Is that correct?

Ms Mogaladi: I don't know, because I have not seen the report that was dropped at the reception. I didn't interact fully with the report.

Mr Mileham: Thank you very much, Ms Mogaladi.

Mr B Herron (GOOD): Thank you, Ms Mogaladi. I also want to pick up with the end of your affidavit around the IGI report, or the secret report that you say that you received by email. You attended the meeting on 31 January and you say in your affidavit that you listened to the recording. Do you know how that recording came about?

Ms Mogaladi: I don't know. Okay, the meeting was recorded. Normally we record our meetings in the Office, but as to how it went public, I don't know.

Mr Herron: Okay. So we had evidence led before us that there was an instruction from the Public Protector not to record that meeting. So are you aware of that instruction?

Ms Mogaladi: No, I don't recall that there was an instruction not to record that meeting. If the meeting was not recorded, then I wouldn't know because my impression was that normally our meetings are recorded, and especially the Public Protector’s PA, if he attends that meeting, his responsibility is to record the meeting. So I'm not aware of the instruction and whether the meeting was not recorded.

Adv Bawa: Sorry Mr Herron, Adv Mpofu can correct me if I'm wrong, but I have no recollection of evidence being led that the meeting with the IGI was not recorded on the instruction of the Public Protector. On the contrary, the evidence was that at the start of the recording, the Public Protector says that the meeting is to be recorded.

Mr Herron: Sorry, I may be mistaken, but I thought Mr Kekana’s evidence was that he was instructed not to record the meeting. Was it a different meeting?

Adv Bawa: I think you've got meetings confused. That's the meeting with the SSA.

Adv Mpofu: Yes. Two things. Adv Bawa is correct in respect of the meetings with the State Security Agency. The allegation was that the Public Protector concealed that meeting in the report, which is false because Mr Kekana showed us where she has done. But I think the problem is, as far as the President’s meetings are concerned, it was just the wrong president. The one President’s meeting was in the CIEX matter and then this one isn't.

Mr Herron: Sorry, Ms Mogaladi. I have the wrong meeting there. Well, I think the part that I don't understand is why you received this report, closed the email, and never disclosed it to anyone that you received this report.

Ms Mogaladi: Like I said, for me, I did not think that it was the SARS Unit report. I thought it was just some report that was sent to my email. It happens that sometimes people would send things that are not really related to what we're dealing with. I did not really connect that this was part of the report that was being requested or being required because I did not read the full details of that report.

Mr Herron: Now if I have the correct meeting, is that the one where we had the recording, Chair, played to us? In that recording, we hear that the Public Protector saying that she's received this report, it was the dropped off anonymously, and that she shouldn't have it. Why do you not say in that meeting, “I also got this report”?

Ms Mogaladi: Chairperson, at the time I had not really connected that was the same report that I have. The one that was being referred to as the SARS because the way that complaint was being classified, it was classified as the SARS Rogue Unit. But that report, when you look at the content that I read on the second page, its talks of an SSA report. You are not necessarily able to figure it out from on the first pages that it's about the SARS investigation.

Mr Herron: But you were aware that this meeting was about the same issue, the matter that was the same complaint?

Ms Mogaladi: I was aware. Okay, in the complaint of Mr Shivambu, there were several issues. What I was not aware of was what was sent to me was the same report being requested. The complaint had several issues. But what I was not aware of was the report that I had was the same one that being requested.

Mr Herron: If I can go to your evidence about the Dashboard meetings being changed. The way you described it, you would arrive at the meeting, present a PowerPoint, this is the matter, this is where we are at the report, section 7(9), and this is the date. Where did those dates come from that you were reporting at the Dashboard meeting? The target dates?

Ms Mogaladi: We always had just the end date. Then the dates would be coming from the investigation teams, the managers of the different units that attended the meeting. We would come up with a proposal.

Mr Herron: So you would arrive at these meetings, present dates. They were dates that had been determined when the matter first came in. Is that what you're saying? The end date?

Ms Mogaladi: No, the way it happened, let me make a practical example with a Dashboard that I attended in January, I think it was around 20 or 21 January. I would come in with a list of my cases. But the decision would be all cases that are older than two years must be finalised by the 31st. So if in my list I had 100 cases that are older than two years, the date for the various products, they would not go beyond 31 March. It would be from 8 Jan to 31 March. In some instances, much as you might be having an investigation plan, the matter might have gone beyond the date on which it was initially planned to be completed. The end date would be the one that ssays 31 March Then we would be working from the date of the Dashboard to 31 March.

Mr Herron: But some of what you were reporting was the dates for section 7(9) notices. Those notices, I would imagine, no one can determine based on when the complaint came in. The section 7(9) notice would be issued when an implicated party is identified. You were reporting on those dates too. Where did those dates come from?

Ms Mogaladi: They would be coming from our estimate planning. For instance, when it came to the section 7(9) notice, you would either indicate a section 7(9) or discretionary notice. If you don't issue a 7(9), then you have to issue a notice where you are informing the complainant that their complaint is not substantiated. So if it's not a 7(9), it would be that notice to the complainant. So we would normally estimate based on where the matter is, to say this is what it will take for us to do that. It might be easy to estimate particularly in advanced investigations where what is required is just the drafting, but it would not always be easy in all the cases. Basically it would be based on the fact that the investigation is complete, then you are estimating the time to draft that notice.

Mr Herron: So I mean those dates came really from you and your teams?

Ms Mogaladi: Yes, it came from the teams but except that sometimes it's difficult, then you would have to reduce. Let’s say if I would require two months to do this matter. If that two months go beyond the end date, then I have to change the dates and squeeze it, and we often find ourselves coming up with dates that would be… The way that meeting would be, you will be coming with a date that you know that it will be very difficult to come up with a date because the investigator would have their estimation. But when you go to the meeting, that estimated date might be seen as being too far. Then you would have to consider the date within the period within which you are given.

Mr Herron: Ms Mogaladi, how do you allege that you were victimised? I mean the impression that I get from you evidence is that you are unhappy about or you found deadlines unreasonable. That maybe you found the Public Protector to be unkind in some circumstances, particularly around the loss in your family. But how do you make that into victimisation?

Ms Mogaladi: I think the victimisation for me goes around the matter of the FSCA and the disciplinary charges that ensued from that matter, as well as the other charge that related to this matter. As I've indicated in my evidence, I was transferred to this unit without knowing about this matter. The Public Protector started demanding that matter but there were challenges. As I have stated, I really felt that the correct recourse would have been to look at this matter and interrogate it properly and determine where did things go wrong. So I felt I was being victimised because some of the charges against me related to things that I did not have anything to do about. Things that happened in the 18 months before I took over that matter. Secondly, I felt that I was victimised – part of my main concern was that there was selective and inconsistent discipline in the organisation. There have been several reports that have been taken on review, no one has been disciplined except the three of us for a report taken on review The circumstances are different. In some instances it’s even worse because the Office has spent millions defending those cases. So I feel that out of the whole organisation, to select only the three of us just for one case, whilst there are several cases that it is defending them that ran into millions. I feel that it is victimisation as far as we were concerned. And even with the last case, when interrogated, there had been a court order, the Office had paid costs. But just to single that out to say you failed to finalise that investigation within deadline that is well known was unreasonable according to the Office standards. That's why I feel that I'm being victimised. The other issues, I was highlighting the issue of the rigidity of the Public Protector. The victimisation would be around the manner in which we were disciplined relating to the FSCA matter.

Mr Herron: Ms Mogaladi, you said earlier that you had legal training, I think you said you worked at the State Attorney. Did you do your articles at the State Attorney as well?

Ms Mogaladi: Yes, I did.

Mr Herron: I mean I would imagine that you are used to unreasonable deadlines, large volumes of work arriving at the last minute, especially in the State Attorney's Office where review applications are often brought, where government and Members of the Executive are sued, interdicted. I mean, the legal profession is all about unreasonable deadlines. Is it not?

Ms Mogaladi: I agree fully. I think even the environment that we work within the Office of the Public Protector, it's about that pressure. I think the difficulty that I found myself, it's the consequences, the pressure that would be exacted, the unreasonableness. Let’s say for instance, if I compare it with the environment in the State Attorney, if on the particular date the matter is not able to be presented for some reason, there would be an explanation, there would be reasonableness in terms of considering, but to say no matter what happens, this matter must be finalised, it's a totally different environment to the one I was talking about in the State Attorney. Even in the Office because we don’t have sufficient capacity, we are used to working long hours and to pushing ourselves beyond. But I think the difficulty that came was, for instance, the consequences, the threats, as well as the discipline that ensued following that, and also not really having any ear to listen to what the challenges are that the teams are investigating. Because in all those challenges, people are not saying, “I am not going to deal with this matter”. It might be that the matter was receiving attention but you required more time. You had been working on that matter and then there were challenges that ensued during the particular investigation.

Mr Herron: Ms Mogaladi, are you aware of the concept of consequence management. The complaint, I think largely across South Africa, that there's an absence of consequence management in government public service. I mean, we can talk about Home Affairs where you can take three or four years to wait for a birth certificate. I think the South African public is frustrated with lack of consequence management. When you set deadlines and there are consequences for not meeting them, is that not a good practice in terms of public service?

Ms Mogaladi: It is a good practice, save to say I went at length yesterday to indicate that when you set those deadlines, are they achievable? Are they realistic? Do we have the resources to achieve those deadlines? Contrary to what is being said, I think the Public Protector has, it's common knowledge, she prides herself about the achievement of this Office. So much as we do have backlog, there is a lot that has been achieved based on the presentations out there in the public. So it's not that people are not working or we are just sitting. There is a lot of work that is coming out of this Office, notwithstanding the other challenges that we have.

Mr B Herron: Ms Mogaladi, you've read section 194 of the Constitution, I assume, which deals with the removal of the Public Protector?

Ms Mogaladi: Yes, I did. Yes.

Mr Herron: I mean is your evidence that, in relation to you, the Public Protector has committed misconduct?

Ms Mogaladi: I related my experience. It is for the Committee to determine that.

Mr G Skosana (ANC): Ms Mogaladi, would you say when the PP set the unreasonable targets that you refer to, she was oblivious to the reality of the nature and complexity of investigation you had to deal with? Or would you say she had acknowledged it but simply sought to make the working environment difficult?

Ms Mogaladi: Oblivious? I don't think so. I think the Public Protector had knowledge on some of those cases and whether she was aware that she was making the environment difficult, I don't know. I cannot confirm. But I think in some of the cases she was aware of the complexity and the challenges of the cases. So I can’t say that she was oblivious and as to her ultimate intention, it becomes difficult for me because I cannot confirm that.

Mr Skosana: What is your view on the culture of audi letters? Is it a good culture? Or is it a bad culture?

Ms Mogaladi: In my view, look, it is a bad culture. I believe that it's something that you… Okay, audi as a process, it is fine, but I believe that it has to be preceded by other measures. To use it as a way of forcing performance; it is not good in my view, because I believe that, as a leader of the organisation, you have to build a team. If you pick up that there are those that are pulling behind, it is your responsibility as the leader… if you are driving at 200 kilometres, it's your responsibility to pull them and make sure that, firstly, they fully understand your vision; they walk at the same pace as you do. Because if you don't, it might be that probably, there isn't that synergy between you and the team. That’s where it becomes a problem. So I believe that audi and the ultimate enforcing of the threats and all those should come as a last resort where you have put in all measures in place. The downside of it is that sometimes it can even discourage some of your good workers and your hard-working team members, because they live in that fear that should I just miss something, then there might be consequences. So it is good if maybe you have done everything that you are required to do as a leader, and you realise that in this instance its simple defiance. Then you can give people an audi and then enforce appropriately but just to have it like all the time, even for no reason, I don't think it's proper.

Mr Skosana: In other words, it's a good culture provided that it is not abused. Would you agree to that?

Ms Mogaladi: Correct. I agree.

Mr Skosana: In paragraph 123 of your affidavit in the last sentence, you say “the issue of audi letters being issued following instructions from the PP issued in meetings was common.” Do you see that?

Ms Mogaladi: Yes, I can see that.

Mr Skosana: I just want to find out for the period between October 2016 after the arrival of the Public Protector and May 2018 when Mr Mahlangu was appointed, was it also common during that period?

Ms Mogaladi: It happened there but it wasn't that common. I think it became more popular towards the end of from mid-2018 onwards. But before it wasn't. It was there, but it was not as prevalent as it later became.

Mr Skosana: So would you attribute it to the PP or to Mr Mahlangu, the then-CEO.

Ms Mogaladi: think in my experience Mr Mahlangu was carrying out the PP’s instructions. I have interacted with Mr Mahlangu, I did not experience that side. But I think my experience was that he was carrying out the PP’s instructions.

Mr Skosana: So when the PP decided to dismiss you, rejecting the ruling of the DC chairperson, for your suspension, you gave evidence that this was not in line with the disciplinary code of the PPSA. So would you say she was not conversant with the disciplinary code?

Ms Mogaladi: No, the PP is conversant with the disciplinary code. If I'm correct, she signed that code. It was signed by her. The revised version was signed by the Public Protector so she is conversant with the code.

Mr Skosana: Don't you think that had you agreed to make representation as per the PP’s letter of 6 May 2021, maybe the PP could have changed that decision of dismissing you based on your submission?

Ms Mogaladi: No, I don't think so because in the letter, the PP had already made a decision because she was saying, "I hereby impose”, “I decided to impose the sanction of the chairperson.” So my reading of that letter was that it was clear. It was also confirmed by the Labour Court in the judgment that she had already taken that decision, and we were correct because the letter, already it was clear that she had already taken that decision.

Mr Skosana: Don't you think that was an opportunity for you to inform her that the decision of the DC chair was supposed to be final?

Ms Mogaladi: I think at that point in time to lose a job is not an easy thing. So as an affected employee, you do everything possible that you will secure your rights because, for me, I did not understand why the Public Protector would take such drastic steps – especially if there was the ruling of the chairperson whereby he outlined his reason. The other issues that were included there were not part of the ruling of the chairperson. The issues suggest that the relationship of trust had broken down. Instead, the chairperson’s view was that it will be easier to… he felt that relationship can be restored, and he felt that part of the reason why he did not consider dismissal was that I kept the Public Protector informed of some of the difficulties about this matter throughout. So I felt that under those circumstances, it would be proper to take a step that would make sure that I don't suffer the adverse effects of first losing your job and then you have to go and fight your matter in the CCMA. I mean some of the colleagues that went through that route, their cases took up to almost two months when the matter was heard in the CCMA. And by the time that you are heard you are already unemployed, so I took the steps that would secure my employment.

Mr Skosana: So is that the reason why you then did not challenge the guilty sanction on your disciplinary proceedings?

Ms Mogaladi: Yes, Chairperson, I think partly I indicated that I felt that challenging the sanction, as I used for lack of a better word, I think I said it was the lesser of the two evils. So I went for what was easier. I had been on that matter for almost two years. My health was negatively affected, so I opted for something that would be quicker and bring finality to this matter Then I can move on with my life. It guaranteed me a job at least. As much as it was difficult because I was without a salary for three months it guaranteed me the security of having a job after the end of the three months.

Mr Skosana: Okay, thank you.

Ms V Siwela (ANC): In paragraph 83 of your affidavit, you indicate you were not given sufficient time to familiarise yourself with the facts of the matter. Do you think the PP was unreasonable in the demands she made to you regarding the s7(9) notice. That's the first question.

Ms Mogaladi: Yes, I felt that she was unreasonable because I had just taken over that matter, I was not familiar, I had not interacted with that particular investigation.

Ms Siwela: Thank you. The second one is page 38, the Public Protector, according to you, did not accept the request for extension by Mr Madiba concerning the s7(9) notice. Did the PP fail to keep an open mind in her approach to investigations – the processes undertaken to conclude this matter?

Ms Mogaladi: Yes, I believe so because I think in that memorandum and other emails that had been shared, there were details around the challenges that were being experienced on this matter. So the Public Protector did not pay much attention to addressing some of those.

Ms Siwela. Thank you. On audi letters, I heard other Members have asked you but I want you to confirm one thing for me. Considering how employees were threatened with these audi letters, would you say this created a culture of fear in the OPP?

Ms Mogaladi: It is correct.

Ms Siwela: Thank you, Chairperson. These were my three questions. I'm covered by other Members. I won't waste your time. Thank you for your responses.

Ms Z Majozi (IFP): Chairperson, I have only two or three questions. On part four of your affidavit you state that you have been personally threatened by the PP with disciplinary action and you provide details of these threats and harassment in the rest of your affidavit. As we understand you have been working as a senior investigator for the PP Office since 2000. Have you before faced any disciplinary actions prior to October 2019 and the events discussed in your affidavit as well?

Ms Mogaladi: No, I have never ever been disciplined since I joined the Office of the Public Protector in 2000. It was the first time that I went through such an event.

Ms Majozi: Okay. At Part E of your affidavit, especially part 74, you deal with the disciplinary action taken against you and Ms Sekele. In your affidavit, no detail is provided on when you first received notice of this disciplinary action and you state it was around about October 2019. Can you recall the exact date and where you were served with the formal notice? Furthermore, what in your experience was standard practice regarding disciplinary processes in the Office?

Ms Mogaladi: I was served I think either 17 or 19 November. I don't recall just off the top of my head. I was called by HR and it was delivered by the driver at my house. They made arrangements for him to deliver. With regard to the other disciplinary matters, I do not have much experience around that because I was not involved. I don't know how they dealt with the other cases.

Ms Majozi: So you then say maybe that was the standard practice regarding your disciplinary process that was taken.

Ms Mogaladi: I cannot really confirm whether that was how it was dealt with in other cases, but in my case, it was delivered at my house because I was suspended. But the other cases, there have been disciplinary matters where people were not suspended. I think, with regard to that matter, the first person who was suspended was Mr Kekana, who was served with charges. So I'm not familiar with how charges were served in his case, but between the three of us it was delivered at our homes because we're not allowed to come to the office.

Ms Majozi: In your affidavit when you said you had accepted the charges and maybe the verdict that was given to you, what was the reason for not countering the charges or saying that you do not agree with everything that was there or you do not agree with some of the charges? What was the reason for you to accept only and not have a process where you would want to take it further?

Ms Mogaladi: Okay, with regard to the charges, we defended the charges, we presented our evidence. The chairperson found us guilty on some of the charges. But the part that we did not challenge was the finding of guilt after we received the sentence because we had an option to take the decision of the chairperson on review and challenge the outcome. So that is the part that we did not challenge because the sanction came as a suspended sentence. As I have indicated, it came with a different challenge whereby that sanction of suspension was being changed by the Public Protector. But with regards to the charge, outrightly I didn't accept them. We challenged, we responded and presented our case to the chairperson.

Ms Majozi: No, thank you Chairperson. Thanks.

Ms O Maotwe (EFF): How are you ma'am?

Ms Mogaladi: I am fine, Ms Maotwe.

Ms Maotwe: Earlier on you were asked about the salary package of the Public Protector and you indicated that you were not sure. How much does an executive manager like you earn per year?

Ms Mogaladi: The salary currently is about R1.6 million. It's the salary of a DDG in the public service.

Ms Maotwe: R1.?

Ms Mogaladi: R1.6 million.

Ms Maotwe: Oh okay. And earlier on there was a nice discussion between you and Adv Mpofu about the misconduct. I didn't get your answer properly. Maybe if you can respond to it again. Are you taking responsibility for your actions, your own admitted misconduct?

Ms Mogaladi: Okay, thank you. I said to Adv Mpofu that the fair thing that should have done by the organisation was to make sure that we look holistically at this matter. When I drafted that affidavit, I was saying, as far as the parts that I might not have done correctly, I take accountability as the head of the unit. But I'm not saying that I am taking accountability for things that I did not agree to, that I pointed out were not done correctly and that I felt were being unfairly attributed to me. For areas that maybe I could have done better, I do take accountability for those but I don't take accountability entirely for everything that went wrong in this matter. I think part of the example that I gave to Adv Mpofu was that I must take accountability that I should not have agreed to submitting that report within the deadline of two days. I should have rather faced the negative consequences, which was for me to be disciplined for not submitting it. But to agree to that pressure, I should take accountability for that, that probably I agreed that we would subject ourselves to that pressure and submit that. So that is a part that I was talking about earlier. When we drafted this affidavit with the legal representatives that were assisting us, our thinking was around where he was saying, “Look, you had the responsibility, you should have told the Public Protector and you should have faced the consequences of failing to submit within the two days rather than agreeing to be pressured to submit the report within the two days as directed.” So my mind when I drafted the affidavit referred to by Adv Mpofu was around those issues where I felt that I had control in the matter, not everything that I was being charged because I don't agree with some of those things.

Ms Maotwe: Okay. Yeah, I thought it would have been a simple yes or no but an explanation is welcome. Now, in the Pillay retirement matter, were you involved in drafting the report?

Ms Mogaladi: I made inputs on the section 7(9) when it has been discussed during the group discussions at the meeting that was convened by the former CEO.

Ms Maotwe: Then at the meeting with IGI where you were present, where you said that the classified report had already been published in the newspaper, to be specific, the Noseweek newspaper.

Ms Mogaladi: Can you repeat the question? Maybe I missed you.

Ms Maotwe: I'm saying with regards to the meeting with the IGI where you said that the classified report had already been published in the newspaper.

Ms Mogaladi: I don't know if I understand the question. Is Ms Maotwe asking me if I said that it was already published?

Ms Maotwe: Yes.

Ms Mogaladi: No, I didn't say that, Ms Maotwe. I never referred to Noseweek.

Ms Maotwe: But were you in that meeting?

Ms Mogaladi: Yes, I was.

Ms Maotwe: Was it brought to your attention that it has already been published?

Ms Mogaladi: No, no. What my recollection from listening to the audio recording, the Public Protector mentioned that the report was already in the public space. That was the discussion with IGI. I might have missed the part where the Public Protector was referring to Noseweek. But my recollection when I listened to the audio recording, she was saying that report is already in the public space. IGI was confirming and agreeing with the Public Protector that he is aware that the report was already in the public space.

Ms Maotwe: Okay. So in this inquiry we are meant to determine whether the Public Protector committed any misconduct or gross misconduct or was grossly negligent in the performance of her duties. Your evidence so far, Ms Mogaladi, relates to how she treated you and other staff in the PP Office. Do you consider the way she treated staff as constituting gross misconduct or negligence?

Ms Mogaladi: I think my role is to share my experience. I think it is for the Committee to consider it and decide whether it constitutes gross misconduct. I don't think it would be proper for me to decide on that. I'm just presenting my evidence The Committee will decide.

Ms Maotwe: Okay, in your affidavit and in your evidence before this inquiry, you were at pains explaining and emphasising that the Office of the PP has had problems with case backlogs for a while and the PP wanted to eliminate these backlogs. Do you agree?

Ms Mogaladi: I agree.

Ms Maotwe: Then in her attempts, now that’s the PP, to eliminate the backlogs, she demanded the highest form of discipline and competence from her staff. Do you agree?

Ms Mogaladi: I agree.

Ms Maotwe: Then earlier on Adv Mpofu asked you, I think it was yesterday, that after the disciplinary hearing you took issue with the sanction, but not with the findings against you. Is it fair to say that your skills and competency were not of the standard required in the PP to deal with issues such as backlog in the Office?

Ms Mogaladi: I do not agree.

Ms Maotwe: Why?

Ms Mogaladi: The fact that one report that I dealt with was taken on review cannot be a determining factor with regard to my skills. It is one matter that I inherited, that came there. If you were to say that all cases that I dealt with were taken on review, for instance, if you take the media briefing of the end of March, where the Public Protector released this matter, out of the 11 reports that the Public Protector released during that media briefing, six reports were coming from my team and only one matter out of those was taken on review. So I do not agree that the one report taken on review can be a factor that determines my skill and my competency in this Office.

Ms Maotwe: Okay, from your affidavit, is it correct to conclude that you led the team that investigated and wrote the FSCA report?

Ms Mogaladi: Yes, it is correct.

Ms Maotwe: Are you happy that it is now Adv Mkhwebane who must take the flack for the substandard nature of that report?

Ms Mogaladi: Look, to say that I am happy that Adv Mkhwebane has to take flack for that, I don't think it's a fair question to me. Firstly, that was not really my decision that the Public Protector should be standing before the Committee. My understanding is that this is not the only report that the Public Protector has to face the Committee. There are several incidents that are related to that. I have been explaining since yesterday that, look, if there is a part that has to be attributed to me in the entire process, that's fine. I don't have a problem with taking accountability. But to say that the Public Protector is facing the section 194 inquiry as a result of my conduct, I do not agree. There are several matter and several charges that the Public Protector is facing. Also importantly, the Public Protector appended the signature to that report. I believe that as the head of the institution, unless it may be the view that it's correct that the Public Protector just signed without agreeing to that. My understanding is that if I sign something, I'm agreeing, I should take responsibility and accountability for it. So I don't think it would be fair to attribute the entire Section 194 to one of the many reports that are being dealt with by the Section 194 Committee.

Ms Maotwe: Ms Mogaladi, is it fair that your subordinate was dismissed and you are still having a job, as this was exactly the same misconduct?

Ms Mogaladi: I think in all fairness, I feel that it is unfair for a suggestion to be made that I should be blamed for Mr Madiba’s dismissal. I did not take a decision about Mr Madiba’s dismissal. Mr Madiba explained his challenges. I have presented. So I feel that it is unfair to want to blame me, that I have a job, Madiba doesn't have a job. I did not dismiss Mr Madiba. Really, I mean I feel that it's unfair to suggest that. This is a public platform, we are talking about someone who has passed on, who's not in a position to defend himself. I really feel that it's unfair towards me because it creates the impression as if he was dismissed because of me. It's unfair.

Ms Maotwe: Now, earlier on you said that Mr Madiba was dismissed by the independent chairperson. Am I correct?

Ms Mogaladi: You are correct.

Ms Maotwe: Okay. Earlier on in the Pillay retirement matter, you had said that your involvement was with regards to Section 7(9). Now were you happy that you adequately dealt with the section 7(9) notice?

Ms Mogaladi: Okay, the Pillay retirement notice, there were two issues on that matter. There was the complaint being referred late to the Office, which was the main reason that report was set aside. There were the substantive issues that were being dealt with in the complaint. I was happy with the approach that we followed, particularly with regard to the retirement. I was happy with the report as it was presented. I just want to clarify that the report was not set aside because of the substantive issues in the report, but because of the fact that the complaint was referred to the Public Protector when it was already older than two years. There weren't sufficient exceptional circumstances.

Ms Maotwe: Okay, Chair. That would be all from my side. Yes?

Ms Mogaladi: No, no, actually to be precise, I think the concern that was raised was that there had been various attempts to address the provisions of section 6(9) of the Public Protector Act and every time there would be different information presented to Mr Pillay and his legal representatives.

Ms Maotwe: Okay, thank you.

Ms J Mananiso (ANC): As the person who was in charge as management, do you think there is a need for organisational behavioural change in Public Protector SA?

Ms Mogaladi: Yes, I think I think there is a need to go through the process of organisational behavioural change management, and also to change the culture in the organisation – that culture of fear that we are talking about. Although there are attempts at the present moment to try, but I think it is important that there should be an intervention too.

Ms Mananiso (ANC): Then my second question is which endorsement [3:17:00 – 3:17: 13 inaudible] on the issue of unhealthy relationships with the PP. I just want to check with you, were there any moments that one appreciated the work of the PP as well as acknowledged some of her leadership style during your working period with her?

Ms Mogaladi: I think there are lots of things the Public Protector needs to be lauded for. I think, for instance, I wouldn't say everything that the Public Protector is dealing with it's wrong. But over and above my own experiences, there are some good things that the Public Protector is doing, for instance, the commitment to work, the commitment to finalising some of these cases. But the difficultly for me would be how to achieve that and how it is being done. My view is that there could be a better way of doing and achieving the same results rather than that culture of fear and intimidation. But in terms of increasing the numbers and making sure that a number of complaints are resolved, I think that is the one point but the difficulty would be the cost of achieving that especially on the employee – we've got some who are very good. For instance, I've got someone on my team, he’s a very good investigator, but because of the continuous pressure that we’re putting on him, he's really struggling to keep… his health is deteriorating. Those are the kinds of things that we are dealing with so it would be a matter of balancing.

Ms Mananiso: So if you were given an opportunity to define her leadership style, what would you say?

Ms Mogaladi: Eish. I'm struggling really to try to put it within the different definitions of leadership. I struggle a bit in terms of defining. I would say she is someone who's very rigid. As much as she's disciplined – she's that hardworking person – I really find that she is too rigid, especially if you consider the factors and the information that is being presented to you as the leader. I really feel that she is more towards the side of rigidity and really not being open to what is presented to her and understanding and putting… and objectively arriving at a viewpoint. So that's how I would describe it.

Ms Mananiso: Okay, ma’am. On your affidavit you relate how some colleagues had been sick and so on. I want to check how effective is your employee wellness office, if you have, in the institution? Did some of you actually use it as interventions to deal with tension and workload and things that you were going through as human capital in that particular institution?

Ms Mogaladi: The employee wellness is more of a counselling service where you can do either  telephonic counselling, where they assist you with coping mechanisms if you are not able to cope or if you are stressed. I believe from the reports being presented to management that it is being used by employees, because normally HR would compare on quarterly basis. With the last report, it indicated usage of the employee wellness programme, the numbers have gone up. And personally, I have also used it too as part of a coping mechanism where I struggled.

Ms Mananiso: Is it effective according to you, that you would still think that there's a use for it being there to assist employees? Or it's just a matter of compliance?

Ms Mogaladi: It is effective, but I don't know. Yeah, it is effective. From my experience and interaction with them, it was helpful, it was it was effective but whether it is being used as it should be, is another question. But I think from my experience, it was effective. It was very helpful.

Ms Mananiso: I want to check as well, with regards to incidents that you have related on with your relationship with PP. As people who were working together in the institution have you at some point actually taken her into confidence in terms of how you feel about things that she's actually doing in the institution or with your colleagues?

Ms Mogaladi: Okay, I think maybe with time, my relationship with the Public Protector deteriorated to that relationship of fear where I couldn't really reach out. For instance, in the initial stages, I think before Mr Madiba started reporting to me, I could approach her around the challenges, especially in terms of how much Mr Madiba could be assisted at the time. But I think the minute that I started towards the end of November 2018 as soon as I had this additional responsibility there, the relationship deteriorated completely. It became that relationship of fear. It was a relationship of always having fear because I was always worried about either being in trouble and it wasn't a healthy relationship. I kind of held back because there wasn't that proper relationship. I couldn't even reach out because there was no relationship really, like I said it was characterised by fear coming from my side.

Ms Mananiso: Okay. Ms Mogaladi, do you feel you were victimised by the PP considering what you were subjected to?

Ms Mogaladi: Yes, ma'am, I feel that I was victimised by the Public Protector. There are parts of me that feels that probably that additional responsibility was a way of setting me up for failure. I really felt that I was being victimised.

Ms Mananiso: Thank you Chairperson. That’s what I have for today for Ms Mogaladi.

Mr V Zungula (ATM): My first question, ma’am, is do you agree with the findings of the chairperson of the disciplinary hearing, that you were grossly negligent and reckless in performing your duties?

Ms Mogaladi: I have explained that I do not agree and earlier I alluded to some of the reasons that I do not agree with the finding. But where I'm in agreement is that we didn't take it further. But I do not agree that some of those findings were correct.

Mr Zungula: When you’re saying you didn't take it further, meaning you did not oppose those findings or challenge them?

Ms Mogaladi: Yes, I didn't challenge them.

Mr Zungula: Okay, so as we speak, maybe those findings… there is nothing beyond those findings that would be different from the view of the chairperson?

Ms Mogaladi: Yes, as it stands, the view of the chairperson stands because we did not challenge it.

Mr Zungula: Alright. Then in paragraph 94, you stated that you wanted the court to compel the PP to implement the findings of the chairperson. Is this therefore not an admission that the disciplinary hearing and guilty verdict by the chairperson was justified? Hence you were helped with its recommendations.

Ms Mogaladi: No, not really. I have explained that at the time the sanction of the chairperson was the lesser of the two evils because I had to choose between that and the Public Protector outright dismissing me. Between the two, both are not right but that seems to be lesser of the two because as I said, it guaranteed me that I would still have a job. I would be out of a job for three months; I would be without a salary for three months but I would still have that security of employment.

Mr Zungula: On a different perspective, can you please read us the comforting messages sent to you by the Public Protector? I think it's PM18A and PM18B.

Ms Mogaladi: Okay. The first one said, “Thanks for the update.” Can I proceed?

Chairperson: Before you proceed, just pause, Mr Zungula and Ms Mogaladi.

Adv Ncumisa Mayosi: Chair, I note that Mr Zungula asked the witness to read out PM18A. May I just remind the Member that this annexure is indeed part of the record, but she had requested due to privacy issues in her family – PM18A actually describes the medical condition – that it not be put up. PM18A is there in the record.

Chairperson: Not be flighted. Okay.

Adv Mayosi: In any event the sympathetic messages are in PM18B that the Member is requesting.

Adv Mpofu: Thanks. I was going to say that it’s not just about flighting it. It should not even be read that one, because I think the gist of Mr Zungula’s question is on the next page, not on the one that is the medical.

Adv Mayosi: Correct, 18B.

Adv Mpofu: Just to confirm what Adv Mayosi is saying had been discussed with us and we had agreed that we won’t go there.

Chairperson: Okay, you got that, Ms Mogaladi?

Ms Mogaladi: Thank you Chairperson, I got it. Okay, thank you, that's the message. The first message 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.” There is one the following day after I had updated the PP that she had passed on, it says, “Good morning, Pona. 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?” I think those are the two messages that you wanted me to read.

Mr Zungula: Yeah, thank you. I think I get the gist. So what do you make out of these messages from a human compassion point of view?

Ms Mogaladi: Look, I think for me, this was coming from someone who was very supportive, who understood what I went through and who had compassion with a situation that I found myself in. That's my understanding of the two messages.

Mr Zungula: Okay, no, thank you. Then my next question is, in your affidavit, you stated that the DPP was assisting with five inspections. Was that not the support from leadership and in your Dashboards and file inspection as Branch, did you not get a briefing about the matter?

Ms Mogaladi: No, okay with the DPP, it was part of the support that I got from the former Deputy Public Protector with regard to that. But on the briefing on cases, the list that would be presented to Dashboard would not contain the full details of the file. It would be a list in the form of an Excel spreadsheet that had the summary of the complaint and the status of where the case is. But the full briefing that I was talking about would be a full detailed… We do have a template that we normally use for handing over that contains the full details of the case. So that was the briefing that I was talking about. I had those lists, but it was Excel spreadsheet lists used by the team to report.

Mr Zungula: Okay. Let us say you were Public Protector at the time that Adv Mkhwebane was Public Protector. There is a backlog of investigations and you do not get an extra budget to increase staff. What would you have done to make sure that the investigations are finalised within a reasonable timeframe?

Ms Mogaladi: I think what I would have done would be to engage more with the team, fully understand the challenges they are experiencing, and assist and work with them to overcome some of the challenges The barriers they were experiencing – especially taking into consideration that as the leader you needed to balance the fact that there was positive achievement, the number of reports that we had increased over the tenure of Adv Mkhwebane. If I were there, I would really strengthen that and make sure that, firstly, interrogate why these cases are not moving and really address what are the root causes of the particular delays and challenges, because it's not that there was no performance. It is out there that the team was performing at high level. That is why that comparison to the previous Public Protectors, she has finalised more cases and finalised more reports – there was something that was coming from the team. I would have interacted with them on those backlog cases. We had previously done that as the organisation and it was really helping when we would sit and go through the details of the case and the head of the institution provide that guidance to unlock some of the challenges being experienced.

Mr Zungula: Would you agree that the strategy you would employ, not everyone (1) would be happy or satisfied with that strategy (2) if someone else would have been Public Protector, maybe they would have their own thinking as to what would be the best way to deal with the situation?

Ms Mogaladi: Yes, correct. I was just explaining what I would have done as Ponatshego – not necessarily that it would have been a standard for everyone. I agree with you that it would be dependent on different people. Each one would have their own approach.

Mr Zungula: Therefore, it's natural that other people, maybe like yourself, would not entirely be satisfied with the approach that is working or that worked, that Adv Mkhwebane used?

Ms Mogaladi: Okay, I think what I need to clarify is that I'm not saying I was entirely dissatisfied. I think the difficulty comes in the extent to which the pressure was exerted, where it became difficult to achieve. Those are the difficulties, not that there was something wrong in pushing for the backlog cases. I mentioned that none of us, we also don't like those backlog cases. The longer you are in possession of the case, it becomes difficult, it becomes frustrating, because even the complainants start complaining. So I'm saying the manner of dealing with it was the one that was causing that environment that created fear. We couldn't be open to discussions and expressing our challenges. That's what created problems and dissatisfaction.

Mr Zungula: Okay, then you stated that since the Public Protector signs the reports, she must have read them. Knowing how the reports are done and the volumes of reports, is it humanly possible for the Public Protector to read all reports? If you were responsible for some of the work that leads or feeds the Public Protector, don't you think that you may have sabotaged the Public Protector?

Ms Mogaladi: Oh, the word that was used in the media. I have not done anything to sabotage the Public Protector, I think that is one of the things that really depressed us during the suspension because there was that narrative that was out there in the media saying that we are sabotaging the Public Protector. I have submitted various reports that the Public Protector has signed and they have not been challenged in court. I had no reason to sabotage the Public Protector with just the FSCA report. So I do not agree. If anything, knowing who I am, I really felt that is something that is really unfair, because that's not who I am. I can never do that.

Mr Zungula: Okay, is it fair that the Public Protector is subjected to personal cost orders from the court based on work that was done by multitudes of people?

Ms Mogaladi: Okay. My understanding is that personal cost orders were issued in specific reports, based on what was presented to the courts by the Public Protector. It was not really that in almost all the reports there were personal cost orders. Personal cost orders are always punitive based on the conduct of the party. So it was not in all reports that there were personal cost orders. So if it was in the view of the court, they felt that under circumstances based on the conduct, punitive cost orders should be awarded, I really cannot express an opinion because that was based on the merits and what was presented to the court.

Mr V Zungula: Okay, you also spoke about the breakdown in the relationship. You stated that the relationship had broken down between you and the Public Protector. Now, should it happen that there's a breakdown in the relationship between the boss and the subordinate, from your perspective what should happen? If someone were to leave, who should leave?

Ms Mogaladi: Maybe I might have been misunderstood. I didn't say the employment relationship had broken down. I said the relationship deteriorated. It became characterised by fear, which is something that is different from the employment relationship having broken down. I didn't say that the relationship broke down. Even the chairperson in the ruling didn't say that. I believe that it is part of the legislative framework. If the Public Protector felt that the relationship between her and myself was that she was no longer in a position to work with me, it had broken down, there are due processes that should be followed in dealing with that. It has to be evidence based. So in the disciplinary hearing, that was not the ruling of the chairperson. I never said the relationship has broken down. I said it was characterised by fear.

Mr Zungula: Okay, the last question. The relationship was characterised by fear, however, previously, the Public Protector did show concern, support, and care for you. Why did you not reach out? Or did you reach out maybe to her and maybe speak to her? Also, the fact that you were working together for a very long time, there would have been a relationship that would have occurred between you. Why did you not reach out and, as a former person that was at the same level like you, speak out and remove the fear?

Ms Mogaladi: Okay. You are correct that I knew Adv Mkhwebane before she became Public Protector. I had a relationship prior to her assuming the position. But with time, like I said, the relationship was characterised by that fear. There was a part of me that really wanted to reach out. For instance, after she made those statements that I was sabotaging her, I really felt that probably there might be something that is being misunderstood between myself and her because I really felt that it was not a description of how it is. I can never sabotage her; I had even no reason to sabotage her. When the Public Protector took over, I was one of the people who was really committing herself to supporting her. I was willing to work with her. I never had issues, I continuously worked hard to make sure that I achieve the deadlines. With regard to reaching out to her, there was a stage where during the period of my suspension, the late Mr Nyembe called me. The reason for his call, firstly, is because he was acting in my position when I was suspended. He said he was reaching out because he realised that, it was just a talk, he was signing something and he noted that myself and him shared the year of birth and birth month. Our birthdays were close together. And we started talking about the work and he was just asking me there's a lot of work, how was I coping, and just talking about his challenges. Then the conversation transcended into what was going on. And he was asking me questions that do I really feel that the relationship has broken down? Or am I willing to talk and reach out to the Public Protector? And we had those conversations. I told him that, in my view, I don't think the relationship has really deteriorated and broken down and I would be willing to talk if the Public Protector is willing to talk to me. And he was going to, he said he was not even sent to me by the Public Protector, and then he will find a way of trying to reach out and make sure that we do talk. But unfortunately, it never happened and ultimately, he passed on. So I had always been open. It was a question of how do I reach out because I really felt that somehow, I might have been misunderstood and there might have been something maybe that I might have done to make the Public Protector misunderstand me and start doubting me to the extent that she would feel that I would sabotage her. It was not me. Thank you.

Mr N Seabi (ANC): Can you just, in summary, sketch your structural arrangement? How are you structured especially with specific reference to a case, what are the reporting lines?

Ms Mogaladi: Just to understand Mr Seabi, is it above me?

Mr Seabi: Yes.

Ms Mogaladi: Okay. Structurally the level above me, I report to the COO, being the Chief Operations Officer. As indicated, the Chief Operations Officer had dual reporting. In terms of the core functions, the Chief Operations Officer would report directly to the Public Protector and administratively report to the CEO. So above me, that is the COO.

Mr Seabi: Okay. Having said that, I would assume that you are expected to communicate more with a COO and less with the CEO and even less with the Public Protector as an executive authority?

Ms Mogaladi: It is correct Mr Seabi.

Mr Seabi: My next question would be why would the PP instruct whoever is your supervisor to say do this, do that, do that, instead of your direct supervisor?

Ms Mogaladi: I think some of the PP instructions to take action, some of them were directed at the Acting COO at the time. The one where it was directed at Mr Mahlangu, it was my assumption when I read the email, it was escalated to him because the Public Protector felt that the Acting COO did not take any action. The Acting COO had accepted the explanation that I provided and she did not take any action against me based on the circumstances of the case. So maybe it was an escalation because the Acting COO did not take any action based on the directive from the Public Protector.

Mr Seabi: The reason I'm asking the question is because you feel the Public Protector was giving you pressure but you don't mention the COO and the CEO.

Ms Mogaladi: I think the COO at that time was Ms Basani Baloyi. She was equally under a lot of pressure. Most of the time when we tried to meet the deadline, like for instance with FSCA, I alluded to the fact that when we worked late into the night, she worked with us because we were trying to make sure that we meet that pressure. She was equally under a lot of pressure where she was, in the space that she was. Same as Motsitsi, when she was also the Acting COO, she was under a lot of pressure as well. That's why in the end, she decided that she was stepping down from the promotion; she was no longer willing to be Acting COO because of the pressure.

Mr Seabi: Okay, somewhere, you indicated that there will be cases that would take 36 months. I think it was your policy that it will take 36 months to finalise. Do you think it's fair for citizens to wait for 36 months before they can get the results?

Ms Mogaladi: I think I need to clarify the type of cases, the 36 months. Those are complex matters that fall within that particular category of 36 months. Most of the cases that deal with the complaints of the citizen, it's what we normally call 'bread and butter'. We've got subcategories; we've got what we call emergency matter that must be finalised within a month. We've got early resolution matters that must be finalised within six months. The ones coming from citizens will be complaints on service delivery that must be finalised within 12 months, and we go at length to really clarify the case properly based on its merits. So the 36 months, so far, we are on top of what is sitting in front of me. The only complaint that has been classified as falling within that category, I think I've got two complaints: the one relating to the IPP contracts, and one relating to investigation into Kusile and Medupi power stations. So simple, ordinary bread and butter issues would not be classified as falling within the 36 months because we do understand that some of the citizens that approach us, they approach us where it is a matter of life and death. For instance, someone who's complaining about their pension would not sit for three years. The most we can take with such a matter will be 12 months. The 36 months would be cases where the department has lost the records. For instance, if we take the homelands, we commonly have a problem where records cannot be traced. Those are the cases that would take long because the records are lost by the state institution.

Mr Seabi: There was documentary evidence flighted I think yesterday which indicated that you took two months to send a section 7(9) letter to the Minister. Have I quoted correctly?

Ms Mogaladi: No, not really, Member. The section 7(9) was issued, I think, in February according to that documentary evidence presented to the Committee. It was sent. Then there was a meeting in October and the 18 November email from the Public Protector was that I had not submitted it. In my explanation response, I said to Ms Motsitsi that I had submitted that reminder letter on 24 October. It was already submitted at the time. That was part of the explanation I provided to Ms Motsitsi. But the section 7(9) had long been issued on that matter in February and the Minister had indicated to the Public Protector that the matter is still pending in court.

Mr Seabi: Somewhere in your affidavit, you talk about an unhealthy working environment. In your motivation you attribute that unhealthy work environment to pressure as a result of backlog. Am I correct?

Ms Mogaladi: Yes, I think backlog in the sense of the very rigid deadlines that we had to comply with even in circumstances that it was not possible.

Mr Seabi: Okay, maybe a follow up there. If you agreed, as an organisation or as a branch or as you and the Public Protector, agreed on certain deadlines and you see, as you implement that you will not be able to realise that deadline, why didn't you proactively indicate to your supervisor that "I will not” instead of waiting for a demand for a report then you explain later?

Ms Mogaladi: We did. As you’ve indicated there would be that interaction with the person above me. And we did. Some of the decisions, say issue a warning, would be coming from that explanation. But we did. There was that ongoing discussion on the pressures to try and meet the deadline relating to some of those matters. I think it's also important to indicate that not all the cases that were listed that were being prioritised, were cases that fell within the backlog that are older than two years. Some of those matters were fairly new, they were not older. They had not reached the stage where they can be regarded as backlog chases. But I think we still prioritise them as investigations because we know that we are committed to delivering and rendering services out there to the public.

Mr Seabi: You have also indicated that you already had pressure with your branch, but the CEO came and requested you add another branch. You agreed and you went on, you never indicated at some stage that there’s a lot of work, you'd rather step down from the acting capacity and focus on your branch.

Ms Mogaladi: I did. I indicated in my submission I engaged with the CEO. We even talked about me stepping down and the initial agreement was that I would step down at the end of the financial year and later it was postponed to the end of June. Come the end of June, I even have emails that I sent to him saying, “CEO, we've agreed that I would step down”, but at the time he was saying to me, "No, the Office is in the process of doing your work study. There are steps that are being taken to try and correct the situation.” I did.

Mr Seabi: Do you think it's unlawful for your supervisor to request work from you when you are on leave? Or when leave is approved, to recall you from leave because of work pressure?

Ms Mogaladi: No. To demand work when I'm on leave, it's unfair. But to recall an employee from leave – leave is taken at the prerogative of the employer. If the circumstances have changed, the employer is entitled to cancel the leave due to operational requirements.

Mr Seabi: My question is do you think it’s unlawful? It might be unfair but lawful? Unfair and unlawful?

Ms Mogaladi: Unlawful in the sense that the employee is given work during the period that they are on leave; but cancelling or pulling their leave, it's not unlawful. It is allowed in terms of the Basic Conditions of Employment Act. But the Act is very clear that if an employee is on leave, he is on leave. So it will be unlawful to give them work but you can recall them. It would be better to recall them to avoid that unlawful part.

Mr Seabi: Okay. You indicated in your evidence that as much as you had challenges – when I say you I mean everybody in the organisation; but there are a lot of good things that you achieved as an organisation, I take it even under the leadership of the current PP. Have I heard you well?

Ms Mogaladi: Yes, you heard me well.

Mr Seabi: Okay. You said yesterday that you are now 21 years in the employ of the PPSA. Can I just take it for granted that you are enjoying the environment?

Ms Mogaladi: Look, what the organisation does and the mandate of the organisation, it's something that I'm passionate about – helping the citizens of the country to resolve their complaints at no cost. It is something that resonates with me personally. And probably that’s the reason why I stayed the longest in this organisation in terms of its value and its output to members of the community.

Mr Seabi: My last question, I'm going to combine two questions. Was audi only restricted to letters or was there a verbal audi, one on one? Lastly, do you agree that any management style employed by whomever, depends on circumstances at that point in that organisation?

Ms Mogaladi: With regard to the audi being verbal, I'm not aware that it has ever happened in the Office. On the last question, I agree with you that it is dependent on circumstances – the leadership side. I mean that is why you've got different terms and different terminology, for instance, being volatile and at certain times you have to change your leadership style.

Mr B Holomisa (UDM): I'll ask just one question. Why do you think the Acting Public Protector has withdrawn the review application regarding the legality of the DC chairperson recommendation? Can that not be translated as trying too hard to push the Public Protector under perhaps a certain political party or harassment of some type?

Ms Mogaladi: Okay. I think I heard the question, Chairperson. I’ll respond to the part that I heard, which is why do I think the Acting Public Protector withdrew the review application. I am assuming it would be the application in the Labour Court to review the decision of the chairperson on sanction. I will present my view and my thinking. In my evidence, Chairperson, I indicated that we have already served the sanction imposed by the chairperson. So my view would be the Acting Public Protector felt that the very same sentence that is being taken on review has already been implemented by the Office because the letter from the Public Protector was saying, "I am implementing the sanction”, whilst at the same time she is taking it on review. I think it might be that the sanction has already been served, but I cannot say with certainty. It would be a question that can best be responded to by the Office or the Acting Public Protector because the notice of withdrawal just said that the Office is withdrawing the matter in the Labour Court.

Mr Holomisa: Thank you. I don't have any follow up question.

Mr B Maneli (ANC): Chair, I will try to be quick as most of my questions would have been asked, but it's really to clarify my notes. If I were to go back to confirm this point in paragraph 138 as it relates to impropriety at SARS, you said you participated to a certain extent, but the investigators were reporting directly to the PP. Is that correct?

Ms Mogaladi: It is correct.

Mr Maneli: With that being correct, I wanted to check a question asked earlier about an unknown [IGI] report, which then happened to be classified as secret, which you said you have not had sight of whilst you also received a similar report as confirmed when speaking to the evidence leaders. Is it as a result of your nonparticipation in that report you didn't get sight of so that you're able only now to raise that the report is similar to what you received from the complainant?

Ms Mogaladi: Yes, I had limited involvement in the matter. As the matter progressed and there was further communication, I was no longer involved. The team was reporting directly to the Public Protector.

Mr Maneli: In fact, you are now saying that you are definite that the complainant would have given you a similar report and that your confirmation is because it's both on email and WhatsApp. So it's not an unknown person. You do know this complainant based on both?

Ms Mogaladi: Yes, it is correct.

Mr Maneli: That complainant is Mr Floyd Shivambu. You still say that?

Ms Mogaladi: Yes. I still say that.

Mr Maneli: Yes. You also said that in opening the attachment to the email – the evidence leaders may also assist if it is part of the record. If it is not part of the record, maybe you can indicate if your recall – you seem to be saying that you saw on page two that this is a report classified as secret. Then from that point you were not able to go through it. This is known to be coming from the complainant; did the email not at least forewarn you that the evidence sent comes from that type of an entity that has classified information? Were you forewarned that there is this evidence that he's presenting or you only discovered it yourself? How did the complainant put it? I'm struggling as I've had network challenges for the better part of the day so it's difficult to get to the bundle.

Ms Mogaladi: If I recall, but I think I'll rely on the assistance of the evidence leaders, I don't think there was anything to warn me of that. If I recall correctly, the email would not really – there wasn't much that was said in that email. It did not forewarn me to know outright that it was on the SARS Unit. I think what is important to clarify was the SSA so-called rogue unit investigation report, the document was marked 'secret' only from the second page, not on the cover page.

Mr Maneli: Okay, you’ve already said to the Committee that you then couldn't proceed further. I want to establish if you agree that such information if it is in the hands of unauthorised people, it constitutes a criminal offence; it gets to be unlawful because of its nature? For you not to continue to read further, was it because you're conscious of this? Or was it just that you don't want anything to do with a State Security report?

Ms Mogaladi: I think for me, I did not want to… The fact that the report is secret and it was a report of the State Security Agency, that's where the apprehension came on my part. With regard to possession of the document, my reading of the Act is that the criminal offence is dissemination of the report.

Mr Maneli: Yes, I think that's the point I'm trying to make, is that whoever disseminates that information, surely it is unauthorised to do so. Do you regard, therefore, emailing or WhatsApp as part of disseminating the information? Before I even talk about whether the complainant would have received it properly or not, your understanding of dissemination of information, would that include circulating it through WhatsApp or through an email. Would that constitute dissemination of information, so you understand why I'm asking about the unlawfulness?

Ms Mogaladi: You are correct.

Mr Maneli: You agree then that would be unlawful and constituting a criminal offence? And probably that's the reason you did not read further in the document after picking up that.

Ms Mogaladi: Yes, you are correct.

Mr Maneli: Chair, having said that, maybe again to verify this point that you didn't know the document, even when you were meeting in the IGI you were not aware that you were referring to the same documents until this verification by evidence leaders when they engaged with you? Do you still want to confirm that having seen both now that indeed that's the document you got then?

Ms Mogaladi: I compared the first few pages when I was with the evidence leaders but as to going through the details, I still haven't read that report. Even now.

Mr Maneli: Okay. So your reference would be to the pages that you went through?

Ms Mogaladi: Yes, I went through a comparison of the pages with the evidence leaders. Not really myself reading, yes.

Mr Maneli: Alright. Therefore you would agree in a case that information which has now been disseminated through these emails and WhatsApp, if it was not lawfully acquired, it will still constitute the same offence in terms of the law?

Ms Mogaladi: Yes, it would amount to dissemination.

Mr Maneli: Thanks, Chair. I wanted to be clear on that part, just on the two paragraphs, I want to combine them into one for purposes of time. On paragraph 41, you speak to Mr Madiba. You raise concerns about that section 7(9), including warning that it may be challenged in court. This report was reviewed and set aside. I'm saying at least there have been such warnings, there have been such concerns. You've described Mr Madiba, may his soul rest in peace, as a diligent worker who would not want to put anything that his heart is not [sure of]. And you've never had many reviews in his name so I'm raising it in that context. Paragraph 45 is about the legal advisor, Mr Nemasisi, from where legal advice would have been sought. But that legal advice was not used in the sense that the PP's sign off was a day before that advice would have been received. Would it be correct, therefore, to make the conclusion that if the decision was wrong in the final end, it will not be because red flags were never shown right in the beginning?

Ms Mogaladi: You are correct. There had been that concern from Madiba – even earlier than the submission of this document. You are correct that the red flags had always been there, we were always being concerned.

Mr Maneli: Therefore would you conclude that it may not be an issue of misleading information that may have come from junior officials in this regard? But it will be about how discretion has been exercised by the Public Protector who takes the ultimate responsibility of signing off and issuing final reports in her Office.

Ms Mogaladi: Yes, I agree.

Mr Maneli: You also accept that the Public Protector is allowed to exercise that discretion and that discretion may differ from some of the advice that is given?

Ms Mogaladi: Yes, you are correct. I agree.

Mr Maneli: Now taking into account both points I've raised that in the report that was said to be classified, which has also an unknown whistleblower, that report was still classified as secret. This advice does not get utilised and ultimately the advice becomes what you warned of. Would you then say, I am asking you as a public service servant who is expected to administer the law in a proper way, would you consider these terms of facts as a failure also on the side of a PP – to look at the law, take advice, but also conduct herself in a way that's open-minded so that when advice is made you do not have preconceived outcomes that still go ahead, even if the advice says you are actually going to fail? Do you have that sense or would it be wrong to draw that inference?

Ms Mogaladi: Can you maybe clarify? Are you talking about the SARS investigation unit report and the fact that there was reference to that classified report? Maybe if you can just clarify so I fully understand you.

Mr Maneli: Alright. If I may just through you Chairperson, can we check did you hear me on the paragraphs 41 and 45?

Ms Mogaladi: Yes, I heard you on the paragraphs.

Mr Maneli: I’m using that as the basis. But you also heard me on what I have asked on what the law says about classified information. Remember in this case, you have a report from the complainant which you said you didn’t share. You also have the same report, which you say you confirmed is a classified secret report but it's understood to have been dropped by an unknown person at the Public Protector’s door, or whatever happened. But it still remains a secret document in terms of classification. Taking all this into account and as a person in the public service who’s the custodian of administration and how the law is administered, would you say these actions, and when I say these actions I include the fact that there were advice and warnings which ultimately became true at the end, whether the Public Protector conducted herself in a way that shows that there's no open-mindedness as expected of the Public Protector, in that preconceived decision that "I'm going to go ahead whether I receive this legal opinion from Nemasisi or not but I've asked for it, I've been warned by Mr Madiba you will be taken to court and it will be reviewed". Right?

Ms Mogaladi: Okay, thank you. Now I understand the question. I agree that I think caution should have been exercised under those circumstances. If you arrive at a different conclusion to the legal opinion that is presented to you, then it should have been rational on the basis that you have done further research and have a basis to disagree with that legal opinion. But where there is a different view, if you act contrary to that, caution should the exercised There should be a rationale for deviating from the legal opinion that has been presented.

Mr Maneli: Thank you, Chair.

Ms M Tlhape (ANC): Ms Mogaladi, let's go back to paragraph 90, where you spoke about accepting the position of Acting [Executive Manager: GGI]. You indicated that you were apprehensive to accept this position. Do you think it was just too much, too weighty for you to accept this? Or were you thrown under the bus accepting this position?

Ms Mogaladi: In hindsight, I feel that I was thrown under the bus. I'm not a person who shies away from additional responsibility. That is why there was a part of me that wanted to do it because I know that I don't mind pushing myself beyond. But under the circumstances, especially what prevailed afterwards, I really feel that it was kind of a setup for me. Now that I have gone through and everything that unfolded immediately after that, if it was an innocent act of expecting me to assist as it was presented to me, the organisation would have been more amenable to giving me the time and space. I'm aware of former colleagues who took over and were given about three months to familiarise themselves. Part of me accepted knowing that previously one of our colleagues was given the time and space. So in hindsight, I think I was kind of set up.

Ms Tlhape: So you didn't find it important to indicate that it was too weighty for you? Looking at the workload between the two units.

Ms Mogaladi: I did; hence my handwritten note which says that I would get the support taking into consideration what I am taking on, that I still have my work and I'm taking this additional responsibility over and above. I did indicate that; that is why I made the written comment. It was too much because…

Ms Tlhape: Yeah. I was saying on your comment you requested support from the leadership. What support were you expecting? Did you find did they accede to your request?

Ms Mogaladi: Okay, on that document, when I said support, I explained it to say I requested the time and space to familiarise myself with the second unit that I was taking on. With my current unit, much as it was a high-pressured environment based on the cases, I was comfortable with what I was dealing with, I just needed extra time. But with the other unit that I was taking on that dealt with complex matters, I needed that space that I can familiarise, I can understand, so that when I have to submit reports or section 7(9) notices, it would be something that I can really vouch and confirm that it is correct.

Ms Tlhape: Speaking of that space and time, when the section 7(9) matter was requested from you as new successor in title, for lack of a better word, do you think you rose to the occasion? Or do you think it was unreasonable to expect you to submit that?

Ms Mogaladi: It was unreasonable under those circumstances, especially because my role is to make sure that I review the document; I confirm its correctness and accuracy before it goes to the Public Protector. I felt that at the time I had not even looked into the details of that particular matter because there were several matters that were coming all at the same time during that month – it was not the only one. Yesterday, the evidence leaders shared a list of cases that were requested as from 30 June, whereas when you look at that list on 30 October it might have been two matters that were required. But the fact that I was taking over GGI from the following day after that email of the 30th there were seven additional matters that would have been required from me. Under the circumstances, the volume of urgent things that I was not familiar that were required, that's what made it unreasonable. Probably if it was the only thing I could just sit and work on during that particular month, it would have been understandable. But there were so many things that were required of me 'as in yesterday'.

Ms Tlhape: So it was more about the backlog?

Ms Mogaladi: Yes, it was more; some of those cases were not backlog cases. It was more about the requested information that the Public Protector wanted because most of those cases were not already part of the backlog list. Some of them were new matters that were not older than two years that were requested like the case of Mr Mbalula at the time was not yet older than two years. There were some cases on that list that were not yet part of the backlog, even the FSCA report.

Ms Tlhape: Okay, with your experience in the PPSA, will you say it's uncommon for principals to demand and set deadlines for work, especially when there are backlogs?

Ms Mogaladi: No, it's not uncommon. But having worked with the previous ones, I think the difficulty that we found right now was that support and understanding from the previous leadership… If I can start from even Adv Mushwana, he would demand those backlogs. But I think the difference would be that he would work with us as a team in unblocking some of the challenges that we were experiencing in finalising the matters. Part of the challenges were not coming from the fact that people were just sitting and not working; it might be the case itself hardening and becoming difficult, and we would take time as a team to adjudicate and address the different facets of the investigation. So that’s where with the previous leadership, they would step in, and in some instances, we would sit around the table in the boardroom, go through the challenges, and if it means that we have to draft and discuss together with the head of the institution, that’s how it would be done and it would be quicker, especially when you are dealing with some of the contentious and difficult issues.

Ms Tlhape: My last question, Chair. Talking about the previous Public Protectors, how did they deal with the issues of disciplinary issues? How did they handle issues of discipline?

Ms Mogaladi: They did, they dealt with disciplinary cases. For instance, there were people who were disciplined even during Adv Mushwana. There were people that were disciplined during Adv Madonsela. I came during the last year of Adv Baqwa, so I wouldn’t really talk much about that. But they were dealt with. With the last period, I think the difficulty would be the numbers. I listened to the HR person when he was presenting that the number of disciplinary cases increased over the last few years. So the previous ones dealt with them but the numbers were not that high where it kind of becomes the norm.

Ms Tlhape: Thank you, Chair.

Chairperson: That would have been the last of my Members. Maybe just three quick questions from the Chair. Seeing that you have been here for two days, I'll try and make them very easy. The first one just to confirm with you, when the Public Protector went to meet with President Ramaphosa on the Bosasa investigation, were you part of that team?

Ms Mogaladi: Yes, the initial meeting to interview the President during the investigation.

Chairperson: So you did meet with the President?

Ms Mogaladi: Yes.

Chairperson: In that meeting did the Public Protector have any private session or meet privately with the President?

Ms Mogaladi: I did not see that unless it was held before we started the meeting; but when we left, we all left at the same time.

Chairperson: You all left at the same time, arrived at the same time?

Ms Mogaladi: Okay, in terms of arrival, we don't travel with the same vehicle as the Public Protector. She would travel with a bodyguard so we would not necessarily arrive at the same time. But when we left, we all left, the Public Protector got in her car and then we got into our own cars and came back to the Office. I travelled with Mr Mataboge and Mr Nyembe in one vehicle, so we left and the Public Protector left with the bodyguards.

Chairperson: Okay. So you have no knowledge of a private meeting with the President?

Ms Mogaladi: Yes, I do not have any knowledge of such meeting.

Chairperson: Okay, no, thank you. My second quick point, you make a point in paragraph 104, that the main reason for backlog was the resources for capacity. Maybe before I go further there, you're saying that's a main reason. What would be the other reasons for these backlogs?

Ms Mogaladi: The other reason as I've alluded to in this document would be the complexity and the technical nature of some of the complaints and the fact that some complaints, when we receive them, they have multi-issues, requiring us to draft a very long report. I think recently they worked on one matter that I think had almost 15 years' issues The report went to about 288 pages. So those multi-issues you have to investigate all at the same time. It takes time and the volume of the documents that we have to go through contributes to the backlog.

Chairperson: If, as you indicate here, there have been request sfrom the PPSA for additional resources, funding in the main, that could be reflected in annual reports. I want to check this with you – if tomorrow the Public Protector had asked R50 million as additional funding, would the backlogs go away?

Ms Mogaladi: If that R50 million would be used for personnel, definitely, because it will increase our capacity. The numbers will definitely go away if we get those additional resources.

Chairperson: There was an issue raised that's why I'm coming to this point. There was the argument I want to put forward that I don't believe that funding will solve those problems. There would have been an issue raised about, even in one of the judgments in the Constitutional Court, the methodology of investigations as a problem. So if that is not fixed, you can get the money, but you are not going to succeed with your work. People would go in front of the Justice Portfolio Committee and say this is how I'm fixing this investigation methodology. Because it is one thing to have everybody in one bus, it's another to put them in the right seats, because that's the problem you have currently in the PPSA. Would you agree with that?

Ms Mogaladi: Yes, I would agree. Definitely, I would agree. The effective utilisation and the proper utilisation of the human resources, and managing capacity that we currently have to make sure that people are being utilised in the areas that they are comfortable with and that they are knowledgeable within those areas. I agree with you.

Chairperson: Okay. The next point.

Adv Mpofu: Sorry, no, I just wanted clarity Chair. Are you giving evidence? When you say that's the main problem at the Public Protector, based on what?

Chairperson: What are you talking about?

Adv Mpofu: I'm talking about the question. I'm objecting to the question you are asking. I’m saying when you are telling us now and the world what the problem in the Public Protector is, what is that based on?

Chairperson: I don't hear what you're asking. I want you to explain what you're asking so that I can assist you.

Adv Mpofu: Yes. Okay, Chair. Let me explain it. I'm saying, firstly, I don't know what you are doing, whether you are giving evidence or not. But whatever it is, when you’re saying that's the problem that the Public Protector has now, whatever you described, I’m saying based on what? Is that based on evidence or information that you read in the newspaper?

Chairperson: Thank you, Adv Mpofu. I don't think you heard me. You missed what I was saying I'm not going to use my time to explain that now. But you've already made a statement about that issue. Allow me to continue with my question.

Adv Mpofu: Okay, Chair.

Chairperson: Ms Mogaladi, you and Madiba were put through a disciplinary process because of your role in the FSCA report, which was reviewed and set aside, you know that?

Ms Mogaladi: Yes, I know.

Chairperson: There have been various other PPSA reports that were reviewed and set aside. Agree?

Ms Mogaladi: I agree.

Chairperson: My question is – were the executive managers and chief investigators involved in those reports that were reviewed and set aside, were those executive managers and chief investigation officers suspended because their reports were set aside?

Ms Mogaladi: No.

Chairperson: So to your knowledge that has never happened – but there were reports that were reviewed and set aside?

Ms Mogaladi: Yes, there were several reports that were reviewed and set aside.

Chairperson: Just pause there. Adv Mpofu, I don't take kindly to what you're doing.

Adv Mpofu: What am I doing?

Chairperson: You know what you’re doing. Don't ask me. Just refrain from what you're doing. Don't do what you're doing.

Adv Mpofu: No, what is it, Chair? I can’t refrain from something I don’t know.

Chairperson: You know what you’re doing. Please don't mumble here, whilst I'm on the platform. Just stop that. Stop that Adv Mpofu.

Adv Mpofu: Don’t tell me that I’m mumbling. Just continue. I also don't like what you're doing, but I'm keeping quiet.

Chairperson: Keep quiet. You’re better off when you do so.

Adv Mpofu: Chair, I want to object.

Chairperson: Object to what?

Adv Mpofu: To what you are saying about that I’m mumbling. I think you must withdraw that because it's an insult.

Chairperson: You are disturbing me.

Adv Mpofu: That's fine.

Chairperson: I was sitting here in front of you since yesterday. You never found me mumbling and disturbing your train of thoughts and what you were doing. So don’t do it to anybody else. Not to me, not to anybody.

Adv Mpofu: Okay. Relax. Thank you. I apologise if I disturbed you. I get that. But don't say I’m mumbling. You must withdraw that. If I disturbed you when I was talking to the Public Protector, for that I apologise. But you must also never say that I'm mumbling and you must withdraw that.

Chairperson: Thank you Adv Mpofu.

Adv Mpofu: No, don’t thank me.

Chairperson: I'm not withdrawing it.

Adv Mpofu: Why are you shouting?

Chairperson: That's exactly what you were doing. I'm not withdrawing this. Please switch off that mic Adv Mpofu.

Adv Mpofu: Why are you shouting Chair?

Chairperson: Okay, thank you, switch off that mic. I'm on the platform.

Adv Mpofu: So what will you say if I'm saying you on the platform and you're mumbling?

Chairperson: Adv Mpofu, I want you to switch off your mic and stop talking. I've not recognised you to speak. Thank you. Ms Mogaladi, so what do you think would have been the reason therefore for this report on you and Ms Sekele and Madiba? Why do you think that especially you were kind of targeted for that when there were other reports that had a similar thing?

Ms Mogaladi: I think so, Chairperson. That is my view That is why even through the hearing we raised the issue of inconsistent and selective discipline. It was not really dealt with. And we still feel the same way that we were victimised by the inconsistent and selective discipline.

Chairperson: Okay, thank you for that.

Adv Mayosi: With reference to the questions Mr Maneli put to the witness when he was making reference to the IGI report and said he didn't know whether that was part of the record. I just want to put it on record that it is part of the record. It's in Bundle F. The witness also said that she wasn't sure and she was asking for the assistance of the evidence leaders. That is the email of 11 December. The subject line is, “Evidence on the complaint against Minister Pravin Gordhan”. If you can go down, that was the first page of the attachment.

Chairperson: Thank you. Ms Ponatshego Mogaladi, do you have any final remarks? Or any issues you want to raise to this Committee? Having spent two days with us.

Ms Mogaladi: Yoh, Chairperson. It has been a very difficult two days. It was long. But I would like to thank the Chairperson The Members for giving me this opportunity to come and present and share my story or my journey with the Committee. I am hoping that what I have presented to the Committee will be of assistance to the Committee in making a determination in this matter. Thank you, Chairperson and Members.

Closing remarks
The Chairperson thanked Ms Mogaladi on behalf of the section 194 Committee. He thanked her for availing herself and contributing to the work that they do, placing the evidence here as well as answering questions. The Committee really appreciated her contributions. Hopefully it would be of assistance to them as they deliberate and as they conclude their report. There were no further questions for her. He excused Ms Mogaladi. The Committee would be starting at 09h00 the following morning. He thought that it would have been spoken about.

Adv Mpofu said that there was that understanding but during one of the breaks Adv Bawa had indicated that she might need the time to do final touches with the witness.

The Chairperson corrected the time and said the Committee would meet the following day at 10h00.

Adv Mpofu said that as it was late in the day, that issue he had parked he would raise in the morning.

The Chairperson thanked everyone.

The meeting was adjourned.

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