PP Inquiry day 26: Muntu Sithole

Committee on Section 194 Enquiry

26 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

Day 26 of the Section 194 Enquiry into Public Protector (PP) Adv Busisiwe Mkhwebane’s fitness to hold office, opened with a complaint from the Public Protector's legal team. Adv Dali Mpofu SC on behalf of the PP addressed the Constitutional Court's dismissal of the PP's bid to seek a rescission of the dismissal of her application of its ruling that the rules governing the Section 194 Enquiry Committee process were lawful. Adv Mpofu said Parliament and this Committee's chairperson sought to alert the Western Cape High Court about the Constitutional Court's ruling, in what he said was an effort to influence that court's pending ruling on Adv Mkhwebane's urgent challenge to her suspension by President Ramaphosa.

The Chairperson responded at the end of the meeting that the PP herself had named him as the second respondent, and as such, he could not avoid being involved. The Constitutional Court's dismissal was in the public domain so Parliament was not alerting Western Cape High Court. He said the affidavit dealt with a factual matter, not with the merits before the Committee. He stated unequivocally that the Section 194 Enquiry did not have a predetermined outcome.

Today's witness, Thembinkosi Muntu Sithole, has been at Public Protector South Africa (PPSA) since 2013 and is currently the Manager: Legal Services. Documents and invoices were produced showing costs for legal opinions. Focus was on the invoices from Paul Ngobeni which proved he was paid by the PP to draft articles in defence of what the PP deemed as ‘political attacks’ that were published on an online news website. Mr Sithole however insisted that Mr Ngobeni provided opinions. He confirmed that Mr Ngobeni is not a member of the Bar or a senior counsel. Adv Bawa requested that Mr Sithole produce the invoices legal opinion that Mr Ngobeni provided on the President's CR17 investigation. This opinion was then sent on a Seanago Attorneys letterhead. Mr Sithole agreed that this is not normal as advocates normally provide their own opinions on their own letterheads.

The Evidence Leader noted the Vrede Dairy judgment criticised the use of two sets of advocates during litigation despite the PP claiming that financial constraints had limited her ability to properly investigate the Vrede Project. The court finding of an incomplete Rule 53 record in several cases was also covered.

Cross examination started but would continue on 1 September 2022.

Meeting report

Chairperson: I welcome the Members here at M46, those on the virtual platform, the Public Protector, Adv Mkhwebane, and her legal defence team, the Evidence Leaders, members of the media and other members of the public to the meeting today, 26 August 2022. Before I invite Adv Bawa and Ms Ebrahim, I’d like to allow Adv Mpofu the opportunity to speak on the matters he wanted to address yesterday. Adv Mpofu?

Complaint by Protector legal team
Adv Dali Mpofu: Yes. Thank you so much. Good morning, everyone. Chair, remember I had said that there are three issues: there were two other minor issues regarding the witness list and the duration of the cross-examination but we managed to deal with them yesterday. There is one issue that is outstanding. Thank you. Chair, I appeal to you to just be patient with me because this may culminate into something quite serious… regarding the proceedings. Chairperson, let me just give you a bit of background on this matter that I'm going to talk about, as it concerns the judgment that was delivered by the Constitutional Court about two days ago and it has implications for this Committee; more particularly, the reaction, thereto, by the National Assembly and the Committee (I’m just flagging where I am going with this). Chair, I'll give a very brief, factual and legal background or backdrop into the issues that I'm going to raise; I gave some of this background on the first day of our proceedings here, so I’ll just provide a high-level summary. I think everyone by now knows that last year, the Western Cape High Court found the rules of the National Assembly, that bring us here, to be unconstitutional in two respects: one related to the issue of legal representation, which we have spoken about; the second relates to the issue of the inclusion of a judge in the independent panel and whether or not that was in breach of…

Chairperson: Please pause, Adv Mpofu. Your remarks are being disrupted.

Adv Mpofu: Thank you Chair, can I continue?

Chairperson: Yes, you can.

Adv Mpofu: Alright. I was saying, Chair, that I think the two issues in respect of the rules of this Committee, which were found to be… rather the rules of the National Assembly were found to be unconstitutional due to the issue of legal representation in the Committee and the inclusion of a judge in the Independent Panel; and whether that was in breach of the separation of powers or not. So, that is what happened in the Western Cape High Court. Then Parliament and the DA directly appealed to the Constitutional Court, which was heard, sometime in November last year. As we now know, on 4 February, the Constitutional Court delivered this judgment and it dismissed Parliament’s appeal on the question of legal representation, which is why I'm talking to you now, and it upheld the appeal on the separation of powers issue – in other words, the inclusion of a judge. On 22 February, this Committee met against the backdrop of the Constitutional Court judgment, and decided that it would continue with its ‘work’, to use a neutral term. What then happened, Chair, is a series of matters that became relevant to the Constitutional Court judgment that I'm not going to talk about. We know by now that on 10 March, the Speaker wrote to the President and that culminated in the President initiating a suspension process. Again, those issues are well known to everyone here, and even the public, so I won't go into much into that. But suffice to say that around about the end of March, the President… We made appeals to this Committee to suspend its activities pending that litigation, which this Committee decided not to do. If you fast forward to the end of March, the position was as follows: the President had agreed to put, for lack of a better word, a moratorium on the suspension process but the Committee had not agreed to follow suit. Therefore, solely because of the attitude of the Committee, we then had to go to court. Fast forward again, the parties agreed, Chair, to have the matter heard on 26 and 27 April. It was an urgent application, but as it happens in complex matters, we negotiated with many parties on a date when they were all available. Unfortunately, what really then puts a spanner in the works for this Committee and the National Assembly’s legal counsel occurred on 24 April. Parliament’s counsel, Adv Breitenbach, received an SMS from the certain Mr Abramjee, indicating that he had it that, "The judgment will come in the following week and the Public Protector’s application would be dismissed.” That application, Chair, was in respect of the second leg of the ConCourt judgment that dealt with the judge. There was a rescission application in respect of that. That was an issue in the litigation that I referred to because what we were saying, basically to Parliament, is that it should stop continuing the matter because it's subjudice and continuing before the Constitutional Court, among other things. So basically what Mr Abramjee was trying to say to your counsel and that of Parliament was, ‘Don't worry, the subjudice is going to be moot because next week, the judgment is coming in your favour on good authority.’ This resulted in the parties including Parliament, and this Committee agreeing that the matter should be postponed and no longer be held on 26 and 27 April, which was not a mistake – we were actually going to be sitting on Freedom Day, that's how urgent the matters was – pending the parties approaching the Chief Justice to find to investigate this unprecedented occurrence. That happened and the postponement was granted by agreement, and we jointly wrote a letter to the Chief Justice, who a few days later spoke on SABC and indicated that indeed, he was going to investigate this – that it was a matter of concern and so on. The Public Protector, for her part, conducted an investigation in terms of Section 6 of the Public Protector Act and issued a report within a couple of weeks, which revealed alarming facts, including that one of the Constitutional Court judges had about 18 telephone calls between him and Mr Abramjee, the sender of the SMS, up to 22 April, which is two days before the judgment. It also revealed that contrary to what we had been told, Mr Abramjee had sent an SMS earlier to Adv Breitenbach citing a judge, who was his friend or something, about holding office in state-aligned institutions. That report raised even more alarm. Then on 10 June, Chairperson, the Chief Justice issued a media statement, stating again that he was finalising his investigation. I put the emphasis on the word ‘he’ because he said he is finalising his investigation. In other words, the public must not be alarmed at the delay because he'll be finalising his investigation. Well and good. And then completely out of the blue on 17 June, the Chief Justice then released a report of another investigation which had been led by the retired Judge Mpati. This was, to put it mildly, bizarre at two fundamental levels. One, it was the first time in South Africa or at least anywhere that I know of that we had an investigation report by a person whose identity and appointment is only revealed at the stage of the report, not at the stage of the appointment, or the conduct of the investigation. This is completely unheard of, Chairperson, I can assure you. Secondly, the content of the report also did something quite strange, because it purported to overturn the Public Protector's report – and we know that the same Constitutional Court said in the EFF Nkandla report that a Public Protector’s report can only be overturned by a court of law as that is how it should be and not by some investigation, which is revealed at its tail end. Anyway, the Public Protector had instituted an application in the Constitutional Court to deal with this – and I'm now coming close to the issue at hand here. That application, Chairperson, has been a mischievous lead dubbed as a ‘rescission of a rescission’, you know, by those who want to mock the application or to portray us as mad black people but the application was primarily not about that. That application primarily was basically the Public Protector, asking humbly that in the light of the alleged leak, and corruption – possible corruption – of anyone who might've leaked a court judgment before it is published, the Constitutional Court should not then issue that judgment until the investigation… That was the main issue, more or less. The Chief Justice Raymond Zondo was cited as a respondent in that application… I'm not going to waste your time. I’ll tell you what the court said of the Notice of Motion: “Declaring the conduct of the Chief Justice in (1) authorising the release of the judgment or other dated 6 May, 2022 in the rescission application prior to the outcome of the investigation; (2) complying with the improper request of the Speaker for the urgent disposal of the rescission application; (3) failing or refusing to respond to the counsel letter dated May 2022, to be invalid, unconstitutional in terms of section 172(1)(a), alternatively Section 38 of the Constitution.” This issue then emerged but the decision doesn't suit the media narrative to portray the application for what it is, so it's called by what it is not, but that's fine as we're used to that. To cut a long story short, the Chief Justice and other respondents put an affidavit which has never been published by the media houses. We then responded to the Chief Justice and other respondents, which was also never published. But on Wednesday 24 August, while we were sitting here, the outcome of that application for the declarant or the unconstitutionality of releasing that judgment came out without an investigation into the alleged corruption. The Court said that it concluded that application should be dismissed, as no case had been made out for rescission, as I said, which was not the main relief sought and the Public Protector to pay costs in her personal capacity as the application constituted an abuse of process of court. There was nothing said about the declaration, which was the main source of the relief. Be that as it may, the issue really that we want to address is what happened thereafter and against that background. The first thing that happened is that literally within hours of this while we were all sitting here, the Speaker of the National Assembly, and the Chairperson of the Section 194 Committee, yourself, presumably on behalf of this Committee, filed a notice of application in terms of rule 6(5)(e) of the Uniform Rules of the Court. For those who don't know what that is, it's an application where you want to bring… Normally you are only allowed three affidavits in a court application, a filing affidavit, an answering affidavit and replying affidavit. If for some reason you want to file an extra affidavit, then you have to apply in terms of this rule. So this one was for an order permitting the Speaker of the National Assembly and the Chairperson of this Committee, to file an affidavit to Mr Leon Manuel, of the State Attorney. Basically, giving this judgment of the Constitutional Court or ruling, to the Western Cape High Court, in a bid, obviously, to influence the outcome of the pending judgment in the application that we have brought in the Western Cape High Court mainly regarding the suspension, but also about the goings-on in this Committee. It must not be held to be saying that there's something untoward per se with invoking that rule. I'm simply saying that was the obvious intention. The fact that it was done, as I say, within hours… I don't even know when they had consulted the Chairperson. They must have consulted him over the phone or something because we're all sitting here and then we came out and found this. Fine. We will have to deal with the fact that we have a view about the relevance of this judgment to those proceedings, but we'll deal with that in court because our view was that the sub judice rule not only applied to the Constitutional Court application but also to the High Court application itself because the matter was subject to… because it wasn't the Constitutional Court, but also because it's in the High Court. The fact that one of these two things has been resolved is neither here nor there, really, but as I say, that's an issue that will be discussed in that court. The last issue then, Chair, is that the spokesperson of Parliament, including this Committee, I presume, then issued the media statement and did a series of interviews, welcoming the punishment of the Public Protector, who received a personal cost order for abusing the court, by merely asking that the judgment issued under these mysterious circumstances should have been withheld until this investigation was done; and that the court, implicated in this, to put it mildly, needed to account to the Chief Justice on what may or may not have happened. Chair, let me illustrate the situation like this. This is the exact situation that the Public Protector was complaining about. Imagine if Umalusi, which we all know here, leaks an exam paper and then somebody says ‘I've got it on good authority that Umalusi is going to set this paper’, which then does so. The Public Protector then investigates that and finds that there is some smoke in it; but Umalusi then appoints one of its own, does an investigation and doesn't tell anyone… and then tells us that there's a report of Mr so and so or a government department that did that, I'm sure everyone would understand. But when someone indicated that a judgment about her would be coming a week later, the response here is ‘How dare the Public Protector even ask questions. She should have just suffered in silence. She should have known her place and kept quiet’. But that's a story for another day. What we're complaining about, Chair, is your involvement in all this and that of the Speaker, firstly. In the submission of that abrupt application, which as we say is intended wrongly to influence the outcome of the other application. But more importantly, the triumphalist statements that were made about welcoming the personal cost order against the Public Protector, we find that, Chair, to be completely not in line with the role of this Committee, to the extent that you are speaking for the Committee, or yourself if you're speaking for yourself because we're in the middle of a process here, which requires for all of us to try and dignify it, and try at the very least to pretend that it is fair and reasonable. It's very clear I think for anyone who has been watching that this may just be a pipe dream. But I think that it's incumbent upon all of us to see through…

Chairperson: I am urging you to round up.

Adv Mpofu: Yes, Chair. That's effectively the complaint we will make. It may or may not culminate in an application for your recusal or removal but it's something that we would like you to consider; not necessarily to deal with now – if that’s what you want, you can do that – but maybe at our next meeting, or by correspondence, or whatever… you can address us, but our instructions are to raise it very sharply. And to either at least get an explanation or something on why it was done in case we're getting the whole thing wrong, and subject to that explanation, we will then decide what to do next. But it's something of serious concern, Chair. We cannot be sitting here and wasting the public's money, going through the motions with something that is far from what it was intended to be, which is fair, reasonable, neutral, and respectful to the Public Protector, all the other participants and the public. Thank you Chairperson.

Chairperson: Thank you, Adv Mpofu.

Adv Mpofu: I took exactly 30 minutes, Chair.

Chairperson: You asked for my indulgence and I hope to have given you that. Let me thank you. Your intention, I presume, was to place a complaint on record – which I have noted. However, I need to respect the time set for the Witness, but I will make a ruling on this matter. I now recognise Adv Bawa.

Evidence Leader Adv Nazreen Bawa: Good morning Chair, and everyone else. This morning’s Witness is Mr Thembinkosi Muntu Sithole, who is on the virtual platform.

Chairperson: Thank you, Adv Bawa.

Adv Bawa: Before we swear Mr Sithole in, can I add two things. Mr Sithole, as you will hear, is the Manager of Legal Services. There are two components to his evidence. Today he will deal with matters that arise in the context of his job as prescribed broadly within his affidavit but there is a component that we will leave for next week, where he will join the acting Senior Manager: Legal Services. There, we will put before the Committee the number – I'm hoping we can enter into an agreement with Mr Mpofu on it because currently we do not have the numbers – of judgments, orders; the reports issued, reviewed and set aside; and the legal costs incurred by the Office of the Public Protector. And so I would beg for an indulgence that we try to get through the evidence today, Mr Sithole, and the issues arising in relation to that will be dealt with when he returns with the Senior Manager: Legal Services. Everything else will be dealt with today.

Chairperson: Thank you for that. I now recognise Miss Fatima Ebrahim to do the preliminaries.

Mr Thembinkosi Muntu Sithole was sworn in by Ms Fatima Ebrahim.

Witness: Thembinkosi Muntu Sithole

Chairperson: Welcome Mr Sithole.

Mr Thembinkosi Sithole: Morning Chair and Members.

Chairperson: Thank you. I now handover to Adv Bawa.

Adv Bawa: Morning Mr Sithole.

Mr Sithole: Morning Adv Bawa.

Adv Bawa: Mr Sithole, we are going to follow a format where I'm going to briefly place a background for you. We're going to deal with some general principles, and then we're going to go through some documentation. I don't understand this to be in dispute, so I'm going to just run through it quickly and you can just confirm it at the end. You commenced your traineeship at the Good Governance and Integrity Unit at the PPSA in 2013. You then went to do articles and returned in 2017 as an investigator in the Private Office. You then transferred to Legal Services through… you became the Acting Manager: Legal Services, from 1 April 2019 and you were then permanently appointed in that position after it was advertised with effect from 1 August 2020. You reported to the Senior Manager: Legal Services and you currently report to the Acting Senior Manager: Legal Services. Would that be a correct summation of your first few paragraphs?

Mr Sithole: That is correct, Chair. I’d like to add to that Mr van der Merwe is now the Senior Manager, not Acting.

Adv Bawa: Okay. You are an admitted attorney?

Mr Sithole: Yes.

Adv Bawa: As part of your duties as Manager: Legal Services, you used to attend to management and operational meetings; certain administrative requirements such as bid adjudication, financial misconduct and Security Committee; and you didn't sit on the task team, task register, dashboard or all those other things since you became part of Legal Services but you did attend to quality assurance and full bench meetings; correct?

Mr Sithole: Correct.

Adv Bawa: Before we deal with any particular issue, because you occupied a unique position in the organisation, let me take you through some general propositions which I think we've touched on many weeks ago. Maybe we can contextualise it again. Would you accept that the Public Protector and we'll just call it the PP for short, performs responsibilities, bearing in mind that there's a constitutional requirement that holds the PP to high standards of independence, and for that matter, impartiality?

Mr Sithole: Correct.

Adv Bawa: Would one expect those who are in the employ of the PP’s Office to conduct investigations and search for the truth independently and impartially?

Mr Sithole: Correct.

Adv Bawa: Would one expect the employees of the PP’s Office to perform their responsibilities and duties without fear, favour or prejudice, correct?

Mr Sithole: Correct.

Adv Bawa: Is it not important that the Office of the PP operates in an independent, impartial manner, that respects the rule of law and the Constitution, to engender confidence in the public? Correct?

Mr Sithole: Correct.

Adv Bawa: Would you agree that it must guard against any actual bias and any perceived bias?

Mr Sithole: Correct.

Adv Bawa: Would you agree that those whom the PP chooses to seek legal advice from must be able to provide the Office and the PP with objective, independent, competent, lawful and legal advice that allows it to best fulfil its responsibilities?

Mr Sithole: Correct.

Adv Bawa: Would you agree that in dealing with matters of natural justice, such as fairness, allowing one a hearing, audi alteram partem, ‘not being a judge in your own cause’, are important principles that the PP must uphold? When I say the PP, I mean, the Office of the PP as well.

Mr Sithole: Agreed.

Adv Bawa: Would you agree that fairness must permeate the work of the Office of the PP and politics should play no part in the discharging of the obligations?

Mr Sithole: Agreed.

Adv Bawa: That would have to be the case, irrespective of the complainant, correct?

Mr Sithole: Correct.

Adv Bawa: Alright. Would you agree that when reports are issued, politics should not play a part in it as well? Correct? Sorry, Mr Sithole, please answer as there is a record. You’re nodding your head.

Mr Sithole: Correct.

Adv Bawa: All complainants should feel that the Office of the Public Protector deals with their complaints properly and seriously, so that no one feels that their complaint is worth less or more than any other complainant. Would you agree with that?

Mr Sithole: Agreed.

Adv Bawa: Would you agree that there must be no perception that your Office is biased?

Mr Sithole: Agreed.

Adv Bawa: In other words, you must operate beyond reproach?

Mr Sithole: Agreed.

Adv Bawa: So I want to use an analogy: You must draw within the lines of the law, and you must scrupulously, in doing your work, do so within the law. Correct?

Mr Sithole: Correct.

Adv Bawa: You, myself and others who are officers of the court, have an obligation to be frank and honest in making oral and written representations to courts, more so than any other ordinary person. It is expected of us to act in good faith, with honesty and make full disclosures to courts. Would you agree with that?

Mr Sithole: Agreed.

Adv Bawa: Would you also accept that the Public Protector should, through legislative and other measures, assist and protect the courts to ensure their independence, dignity, accessibility, impartiality and effectiveness, as contemplated in Section 165(4) of the Constitution?

Mr Sithole: Agreed.

Adv Bawa: In Section 165(5) it states, "That a decision issued by a court binds all persons, to whom and organs of state to which it applies”. Do you agree?

Mr Sithole: Correct.

Adv Bawa: As a lawyer, you would understand and accept that when reports are taken under review, what is under scrutiny is the process through which the decisions contained in those reports have been reached. In other words, reaching rational conclusions, which comply with the rules of natural justice, and other applicable precepts of law, such as jurisdiction, that would meet the principles of legality. Would you agree?

Mr Sithole: Correct.

Adv Bawa: Any lawyer would know that you have to comply with the decisions of the court. Would you agree with that?

Mr Sithole: Correct.

Adv Bawa: As a lawyer, you will know there's a material difference between what the court of first instance considers in a review and what the ambit of the powers of an appeal court would be when it relates to considering an appeal of a decision of the review court. Agreed?

Mr Sithole: Agreed.

Chairperson: Please pause Adv Bawa. Adv Mpofu?

Adv Mpofu: Thank you Chair. I'm not quite sure what's happening now and I wanted to check if this witness has been called in as an expert, or whether he has been called in as a factual witness to give evidence on specific issues. If he has been called in as an expert, then we should have been notified so that we could prepare our witness list. I'll be forced to give my own expertise, which I'm not allowed to do. I should rather do that via a witness, when I cross-examine him. I just wanted clarity on that. Could Adv Bawa tell us in respect of which of the charges, this witness is being called in?

Chairperson: Adv Bawa?

Adv Bawa: Chair, I didn’t interrupt Mr Mpofu when he repeatedly put legal propositions to witnesses who came to testify, prefaced them as a lawyer, and asked them to agree or disagree with legal propositions. So there's been… No, no, let me finish please. I have endeavoured not to interrupt. I'm putting it to the witness, and I want to get his understanding of how he understands the context in which he operates… Which is what I'm doing. If I wanted him to give evidence as an expert, I would have told Adv Mpofu that he’s here an expert. So at the moment, Mr Sithole is a lawyer as Mr Kekana, Ms Mokgaladi and Mr Sithole are and Adv Mpofu placed legal propositions to them, which I did not interrupt, as I thought that there's a context in which he wanted to do his cross-examination. I'd like to be allowed the leeway to do the same with the witness. Mr Sithole has come to give evidence on three charges. He has peripheral knowledge in the Gordhan matter and he was also involved in the Vrede Matter. There's other things that he needs to clarify in respect of what other witnesses have given evidence on, that he would have knowledge about and that we would need to deal with. There are a range of issues that will cover all the evidence.

Chairperson: Okay, thank you. I hope that helps you, Adv Mpofu.

Adv Mpofu: Yes, it does, Chair. I was not being difficult, I only wanted to understand, so that I know how to respond. There is a vast difference between putting questions under cross-examination and calling a witness, which is what Adv Bawa is doing and I'm sure she knows that. So under cross-examination, I could ask about the weather, quite frankly, but I wouldn’t call a witness to ask about that. Be that as it may, I just needed that clarity because if the witness has been called for his expertise; I wasn't sure if we're going to move to other material or if this was a warm-up to other matters. I maintain that if the Committee intended to rely on him as a legal expert, then we should have been told. As far as the second issue regarding the ambit of his evidence, I’m covered by what Adv Bawa has just said, Chairperson. I have obviously looked at the statement, so I know it touches on the Vrede and FSB matters. I would have thought that it is also references made in the actual motion… the one that talks about fruitless expenditure and legal costs. I don’t take issue with the issue of the ambit. I am only taking issue with the expert evidence.

Chairperson: Okay, thank you. Please switch off your microphone, Adv Mpofu.

Adv Bawa: Sorry, Mr Mpofu, when I say he's not talking about charge four, I meant he was not talking about the HR (Human Resources) issues specifically. I did mention, before he came on, that we would deal with the legal costs next week. So I am not going to deal with that as a whole, although there are aspects of legal costs that we will touch on individually, but not on a composite basis.

Adv Mpofu: Thank you, Chair.

Chairperson: Thank you Adv Mpofu. You can switch off your microphone. I think I get the point on how you are going to contextualise the matter, and I am sure that you will not take another 30 minutes trying to do so. Please proceed.

Adv Bawa: No, no. Before we were interrupted, Mr Sithole, I had put the proposition to you, as I cannot remember if you had answered or not, if you would know, as we all would, that there is a material difference between what a court of first instance considered in a review, and the ambit of the powers of an appeal court when it comes to considering an appeal from a review court, correct?

Mr Sithole: Correct.

Adv Bawa: To decide whether a court of review is right or wrong on appeal, that appeal court would need to look at it through the prism of what the review court had regard to when it came to its conclusion. Would you agree with that?

Mr Sithole: Correct.

Adv Bawa: This might sound trite, but just so that we contextualise it. You would also know that when it comes to judicial reviews, there is an application. It is supported by affidavits and the courts consider the contents of those affidavits, correct?

Mr Sithole: Correct.

Adv Bawa: A court has no more before than what is contained in those affidavits, correct?

Mr Sithole: Correct.

Adv Bawa: Let me give you an example, Mr Sithole, if you don't tell the court that you can play soccer in an affidavit and instead, you say to the court, ‘I'm pondering what the meaning of soccer is all about’, then you cannot fault the court if it can make a finding that Mr Muntu Sithole can play soccer on application. Would you agree with that in principle? Correct?

Mr Sithotle: That is correct, in principle.

Adv Bawa: If you take the review court on appeal because it made no finding that Mr Muntu Sithole plays soccer because you didn't tell the review court that you could do so, it matters little that you now decide, for the first time, to tell the appeal court about it when that appeal court has to determine whether the review court was correct in its conclusions or not. Do you agree with that as a principle?

Mr Sithole: Agreed.

Adv Bawa: You can't say to the appeal court, ‘but I have a picture of my soccer boots and because I have a picture of my soccer boots, the review court should have concluded that I can play soccer.’ Would you agree?

Mr Sithole: Agreed.

Adv Mpofu: Chair?

Adv Bawa: Please don't interrupt Mr Mpofu.

Chairperson: Please pause Adv Bawa, you don’t know what he wants to raise. Adv Mpofu?

Adv Mpofu: Chairperson, firstly, that is not true, she has interrupted me several times. Secondly, the point I want to raise is that Adv Bawa should know better; that's why I was asking the question. If the witness is an expert, then of course, she can ask all these nice things but if the witness is a factual witness, then what he says about his understanding of this or the other is completely irrelevant. It is the same as asking anyone in the street whether they think this is a review or an appeal or whatever… So what? That line of questioning can only be justified if the person is being presented as an expert. In other words, they have expertise which is beyond the Committee. That's why we call them ‘experts’. You cannot call someone to speak on something which is within everyone’s knowledge, firstly. Two, or about which that person is not qualified as an expert to comment. She knows that you would never do this in any proceedings. So I'm just saying – I don't mind quite frankly – Chair, if you want to waste your time, you can waste your time. But I'm just saying that those answers are worth zero or less than zero, in the hands of a factual witness. In the hands of an expert, yes, they are; but otherwise, we can just have a chit-chat taxi-rank discussion. We're here for it. Thank you.

Chairperson: Thank you, Adv Mpofu. I am going to do what you asked me to do, which is to exercise patience. Given that, I would also ask you to demonstrate that. I am going to allow Adv Bawa to continue.

Adv Bawa: When we talked about painting between the lines, and a report of the Public Protector gets set aside by a court of law, it may or may not actually have nothing to do with the merits of what's contained in the report, but a lot more to do with the manner and how that report was put together procedurally, would you accept that?

Mr Sithole: Correct.

Adv Bawa: Now, your tasks at the Public protector's office are varied. You do QA reports, you provide legal opinions, you sit in meetings, you draft letters for the Public Protector, you attend to litigation matters and you attend meetings amongst a broad scope of legally related responsibilities that you've carried. You agree?

Mr Sithole: Correct.

Adv Bawa: You've also been charged with compilation of a Rule 53 record in many cases, correct?

Mr Sithole: Correct.

Adv Bawa: I’ll come to the specifics. I'm just being general. I'm not saying you're responsible, ultimately, for all of them, Mr Sithole, so you can put a caveat on that. The reason I'm asking this is, when we as lawyers argue in courts of law, there's always a presumption that the judge knows the law, so we don't tell the judge the law. But this is not a court of law; this is an inquiry. You operate within the legal prism within the PP’s Office and that's why I've taken you through the basics of the principles under which you operate in the Public Protector's Office. If there was anything I said that you didn't agree with, then by all means, you're welcome to disagree with me. However, when it comes to Rule 53 records, can we agree that Rule 53 – which we all colloquially refer to throughout these proceedings and have not yet explained to the Committee precisely what it means – is a rule of court? Which effectively means that every scrap of paper throwing light, however indirectly, on what the proceedings were, both procedurally and evidentially, must be included in what is called a Rule 53 Record – which is what the Public Protector was told in terms of the Absa judgment, correct?

Mr Sithole: Correct.

Adv Bawa: Would you agree that is a trite proposition of law, which preceded the Absa judgment and numerous judgments before that?

Mr Sithole: Agreed.

Adv Bawa: I think, in the Absa judgment, I find a very good articulation as to why the Rule 53 record is of such importance and I'll take a moment to read the paragraph to you, so that all of us can have an understanding as to what the importance of this is. “An essential purpose of this obligation is to enable a court to perform its constitutionally entrenched review function. This gives effect to the rights of the parties under section 34 of the Constitution to have justiciable disputes decided in fair public hearings with all the issues being ventilated. It also safeguards parties’ ability to enforce their rights under section 33 of the Constitution to administrative action that is lawful, reasonable and procedurally fair." Would you agree that one could add in the application of principles of legality with that as well?

Mr Sithole: Agreed.

Adv Bawa: The Record was essential to enable the reviewing applicants to understand what occurred during the investigation that led to the impugned remedial action, and to equip the court to ensure proper administrative justice in the case. Would you agree with that, Mr Sithole?

Mr Sithole: Agreed.

Adv Bawa: You have had a working relationship with the Public Protector for a few years now, correct?

Mr Sithole: Correct.

Adv Bawa: I want to ask for your impression on two aspects. My sense on what has come before this Committee, and you can provide comment on it, is that when you receive an instruction from the PP, for example, to write a letter, to attend to a task, and if it doesn't come to her diligently, she sends you a follow-up and says, ‘I gave you an instruction’. Would you agree with that?

Mr Sithole: Yes.

Adv Bawa: I've seen in numerous correspondence that she does that to you, would you agree?

Mr Sithole: Agreed.

Adv Bawa: I also have the sense that she has a good memory and knows that she’ll remember telling you to do something. Would you agree with that?

Mr Sithole: Yes, she has a very good memory.

Adv Bawa: Here is my third proposition to you, she expects you to work hard and in turn, she works hard with you. Would you agree with that?

Mr Sithole: Correct.

Adv Bawa: Now, before I come to the CIEX matter, I'd like to propose another proposition. As Legal Services you provide EXCO, which I think includes the PP, the Deputy PP and the CEO, with quarterly litigation reports. Correct?

Mr Sithole: Correct.

Adv Bawa: Your predecessor did that as well?

Mr Sithole: Yes, I think so.

Adv Bawa: When I say your predecessors, I mean, in the sense…

Mr Sithole: Mr Nemasisi?

Adv Bawa: We will talk about Mr Nemasisi and Mr Mhlongo, although there will be overlap between you and the latter. Let’s keep it simple for now. I have found that's the way in which Legal Services keeps management abreast of what's going on, correct?

Mr Sithole: Correct.

Adv Bawa: You only became involved in the CIEX matter, when you moved over to Legal Services, and essentially, when the matter was already at the application for leave to appeal stage, correct?

Mr Sithole: Correct.

Adv Bawa: Now, I want to take you to a page in the bundle and we're going to be using just for my colleague's benefit, a combination of 111 and 107 in Bundle F. The first one I'm going to take you to is page 2283. This is a report from Mr Nemasisi in December 2018, when he was unable to make a meeting and he provides a report back where he says the first bill of costs in the ABSA matter comes in at approximately R3.7 million. That is the cost that you have to pay in a cost order made against you, correct?

Mr Sithole: Yes.

Adv Bawa: Right. Then he reports on the Vrede report and tells you that on matters that you've obtained judgments in your favour, you're recovering R1.9 million. He also tells you what he set down in the first quarter of the following year, correct?

Mr Sithole: Yes.

Adv Bawa: Alright. Next week, it will be clear what the total cost of the ABSA matter was, because I don't want you, under oath, to be committing to something we're not quite clear on. Now, in paragraph 11 of your affidavit, you became involved at the appeal court stage and at that stage of the proceedings, you put new evidence before the Constitutional Court, correct?

Mr Sithole: Yes.

Adv Bawa: That evidence didn't serve before the court below that had made a personal cost order against the PP, correct?

Mr Sithole: Correct.

Adv Bawa: Would you agree that the costs lie within the discretion of the court presiding?

Mr Sithole: Agreed.

Adv Bawa: Do you agree that as a general principle, appeal courts do not readily interfere in the application of the courts below on cost orders?

Mr Sithole: Agreed.

Adv Bawa: Is it correct that what you were seeking from the Constitutional Court in that matter, was precisely an interference in the discretion of the court below?

Mr Sithole: In a sense, yes.

Adv Bawa: Would you agree that the gist of what you went into the Concourt for was essentially an appeal on the personal cost order?

Mr Sithole: Agreed.

Adv Bawa: Would it be correct to say that while you were not successful, the Constitutional Court didn't make a personal cost order against the Public Protector in the bringing of that appeal?

Mr Sithole: Correct.

Adv Bawa: Now subsequent to that personal cost order, and it's no secret that's been out in the public domain, an organisation stepped in with a proposal for crowdfunding to cover those costs, correct?

Mr Sithole: Correct. Sorry, could you repeat your last sentence regarding the involvement of an organisation.

Adv Bawa: Maybe I should not use the word 'stepped in', Mr Sithole. Rather there was a proposal in the public domain of an organisation who sought to raise funds independently of the Public Protector to cover those costs. I'm by no means suggesting that the Public Protector was involved in the crowdfunding. There was a third party organisation that stepped in to do that, correct?

Mr Sithole: Yes.

Adv Bawa: The Office of the Public Protector obtained a legal opinion in respect of that crowdfunding?

Mr Sithole: Correct.

Adv Bawa: Were you instructed to get that legal advice?

Mr Sithole: Yes, we were.

Adv Bawa: Who gave you that instruction?

Mr Sithole: The Chief of Staff, through the PP.

Adv Bawa: Sorry Mr Sithole, I did not hear that?

Mr Sithole: It was the Chief of Staff who instructed us to get the legal opinion from Adv Dumisani Ntsebeza.

Adv Bawa: Did you understand that that instruction came from the Chief of Staff or from the PP?

Mr Sithole: He would obviously have canvassed it with the PP because he reported directly to her and received his instructions from her.

Chairperson: Mr Sithole, could you please come closer to the microphone, so we can hear you clearly.

Mr Sithole: Chair, I am quite close to the microphone, I am virtually kissing it.

Chairperson: Don’t kiss it. Okay, let us see if it works. Adv Bawa?

Adv Bawa: Mr Sithole, did you sign off on payment for this advice?

Mr Sithole: Yes.

Adv Bawa: So it was paid for through the Office of the Public Protector?

Mr Sithole: Yes.

Adv Bawa: This was obtained during 2019?

Mr Sithole: Yes. If I remember correctly.

Adv Bawa: I know you may not have it in front of you but my notes say August 2019. We will deal with the cost of this next week. Now can I put a hypothetical to you? Could there be a potential perception of bias if that organisation that had endeavoured to raise this funding, were to lodge a complaint at the Public Protector’s Office – might be seen to be treated differently or preferentially or better? It's a hypothetical and I'm not suggesting that that's what's happening. Would that be problematic for the Office of the Public Protector?

Mr Sithole: I'm not sure if I got you correctly.

Adv Bawa: Let me give you an example that's maybe simplistic. Here's an organisation that raises the funds that covers the Public Protector's personal costs. Then there's a line of 50 people waiting to get into the Office of the Public Protector, and the 49th person in the queue gets taken out of the queue and is placed at number one. Would that be problematic for the Office of the Public Protector to do?

Mr Sithole: Yes, hypothetically.

Adv Bawa: Hypothetically?

Mr Sithole: Yes.

Adv Bawa: Now, you described your involvement in the Vrede matter in your affidavit from paragraph 12 onwards, right?

Mr Sithole: Yes.

Adv Bawa: Now would it be fair to say that at best your involvement was peripheral? I am not talking about the litigation, I am talking about the investigations and the quality assurance.

Mr Sithole: Yes.

Adv Bawa: You attended the task team meetings and the Think Tank meetings that occurred during that period, correct?

Mr Sithole: Correct.

Adv Bawa: Right, and you were present at the meeting in August of 2017 when Ms Cilliers presented an update on the matter and the draft final report, correct?

Mr Sithole: Correct.

Adv Bawa: You would know that there were several Think Tank and task team meetings during that period, correct?

Mr Sithole: Correct.

Adv Bawa: Would you agree, Mr Sithole, that there is nothing in the Rule 53 record, Mr Sithole, on the Gupta Leaks?

Mr Sithole: Agreed.

Adv Bawa: Are you familiar with the OUTA (Organisation Undoing Tax Evasion) report?

Mr Sithole: A what?

Adv Bawa: An OUTA report. A report provided to the Office of the Public Protector by OUTA.

Mr Sithole: No, not to my recollection.

Adv Bawa: Okay, let me take you to Bundle H, number 19, you will see on 13 July, the Public Protector sent a letter to the CEO, which you were not included in and she says, “Follow-up with the Free State PR (Provinical Representative) to prepare letters to the Premier and MEC Zwane for my signature. Regards, the below Gupta Leaks allegations that are in addition to the Section 7(9) letters.” Do you know anything about that, Mr Sithole?

Mr Sithole: No.

Adv Bawa: She then says, “I will give you the hard documents submitted by OUTA”. Have you ever seen her documents submitted by OUTA in the context of this report?

Mr Sithole: No, not on Rule 53 especially… or on the evidence found, if I may put it that way.

Adv Bawa: You were part of the task team that was quality assuring and attending to this report at the end of 2017, correct.

Mr Sithole: Correct.

Adv Bawa: You are one of the authors of the memo that is provided at the end of January, correct?

Mr Sithole: Correct.

Adv Bawa: As far as you are aware, were you in possession of this OUTA report?

Mr Sithole: Not to my recollection.

Adv Bawa: In that last period after you've done that memo, you attend a meeting in the PP’s boardroom, together with Mr Kekana, Mr Raedani, Adv Matlawe and Mr Nemasisi, in the first week of February, correct?

Mr Sithole: Correct.

Adv Bawa: You deal with that in paragraph 14 of your affidavit?

Mr Sithole: Yes.

Adv Bawa: Can I ask if you know of any reason why the report had to be issued on 8 February?

Mr Sithole: No.

Adv Bawa: Now can you inform the Committee of your understanding of what occurred, in paragraph 14?

Mr Sithole: Yes. As far as a recall, I think this was also dealt with previously by Mr Kekana and Mr Raedani but differently. The purpose of this meeting and the reason why the PP called us to the boardroom was as a result of the comments or issues that Mr Nemasisi raised in respect of the draft report that we were working on. I can't, out of my head, recall exactly what those issues were but some related to the phrasing of the issue. There was also an issue regarding the fact that we could not have changed anything on the draft, because it was in the Section 7(9) notice, as you cannot make additions if it was not canvassed in the Section 7(9). The discussion was along those lines.

Adv Bawa: You don't remember much of what transpired at that meeting, correct?

Mr Sithole: No, other than what I had stated here.

Adv Bawa: You were not involved in the finalisation of the report later on into that evening, correct?

Mr Sithole: In the evening? No, we dealt with the report after this meeting. I can't remember what time it was submitted to the PP thereafter.

Adv Bawa: Tell me, were you in the meeting with Mr Maimane?

Mr Sithole: No.

Adv Bawa: Now in paragraph 17, you explain that in the Vrede litigation, generally, for the compilation of a Rule 53 record, the investigator would be asked to send the record through to Legal Services, who would know what they relied on, and they would provide it for the compilation of the record, correct?

Mr Sithole: Correct.

Adv Bawa: Do you accept that would be the record of decision, the draft reports, the memoranda and all kinds of other documents?

Mr Sithole: Correct.

Adv Bawa: We've already discussed what the ambit of the Rule 53 record would be about so I don't want to waste time on that. Now on the 20th of May, the court effectively set-aside the Vrede Dairy report, correct?

Mr Sithole: Correct.

Adv Bawa: In the email on page 225, you have the heads of arguments from CASAC, which was one of the applicants in the matter before the court, correct?

Mr Sithole: Correct.

Adv Bawa: You'll see on 6 August, that it is sent to you and the PP at 15:00. An hour later – and this is why I put the proposition to you that she attends to matters and she works hard at things that are sent to her – she had considered the heads of argument and told you, as the legal advisors, what she wants you to consider for purposes of the heads of argument, correct?

Mr Sithole: Correct.

Adv Bawa: Included in that are guidelines she gives to you, "Investigate the conduct and not the complaint. Some of the processes were followed with a lot of reports mentioned and they were only uploaded to the website.” Can you recall if this was one of the reports that got uploaded to the website when it was issued?

Mr Sithole: I can’t recall, Chair.

Adv Bawa: It's neither here nor there. The point I'm trying to make is you get guidance, the PP has provided her view on what she wants to put into the heads of argument. Correct?

Mr Sithole: Correct.

Adv Bawa: Right. You would generally relay those instructions to whichever counsel is on board to take into account the PP’s wishes?

Mr Sithole: Correct.

Adv Bawa: Now in this matter, you were tasked with collating that Rule 53 record, correct?

Mr Sithole: Correct.

Adv Bawa: Would you agree that everybody knew there were task team and Think Tank meetings that had taken place?

Mr Sithole: Correct.

Adv Bawa: With hindsight, Mr Sithole, do you accept that that Rule 53 record was incomplete?

Mr Sithole: Yes, I accept that.

Adv Bawa: You, Mr Nemasisi and the PP should have known that that Rule 53 record was incorrect?

Mr Sithole: I wouldn’t include the PP. I would say myself, the task team investigators, Mr Ndou, Mr Nemasisi and the Free State, ought to have made sure the Record was complete.

Adv Bawa: Why are you excluding the PP from that, Mr Sithole?

Mr Sithole: Because I don't think that the Rule 53 record was sent to the PP before it was filed.

Adv Bawa: If it was sent to the PP, would you change your mind?

Mr Sithole: I would.

Adv Bawa: Let’s test that for a moment. You provided me with a sub-folder, which was what you obtained from your computer. It consisted of something like over 50 documents of tasks, task team minutes, et cetera, correct?

Mr Sithole: Correct.

Adv Bawa: You also provided me with a number of emails, which you said to me specifically related to the compilation of the Rule 53 record, correct?

Mr Sithole: Correct.

Adv Bawa: I want to take you to those emails at Bundle F, item number 115. On the 12th, Mr Nemasisi sends the email off to Mr Ndou, and the Public Protector is included, Mr Mothupi, who I understand is the second in command of that unit, and yourself, in a request for records and documents, correct?

Mr Sithole: Correct.

Adv Bawa: It is a request that you received by 13 March, correct?

Mr Sithole: Correct.

Adv Bawa: I'm going to take you specifically to 121 in the bundle that you provided to me. On the 16 March, Mr Nemasisi sent an email to the Public Protector, “Good afternoon, PP. Kindly find herewith the attached draft index to the Rule 53 record. Mr Sithole will populate the pagination, as the files have already been paginated.” Would you agree that the Public Protector had insight into what was going to be filed as part of the Rule 53 record before it was done?

Mr Sithole: Yes, she had insight into the draft index.

Adv Bawa: If she had, at any stage, wanted to add anything, or point out to you that the reports on which the Section 7(9) was based; the Think Tank and task-team meetings; the report that Adv Cilliers provided in September or anything like that, was not included in the Rule 53 record, it would have been obvious. Would you agree?

Mr Sithole: Come again?

Adv Bawa: Let’s put it this way: the Public Protector had been part of the Think Tank meetings. Would you agree?

Mr Sithole: Agreed.

Adv Bawa: The Public Protector had signed-off on the section 7(9) notice, correct?

Mr Sithole: Correct.

Adv Bawa: The section 7(9) notice was included in the Rule 53 bundle, correct?

Mr Sithole: Correct.

Adv Bawa: The only two items of draft reports included in the Rule 53 record was the one dated November 2014 report and the final report. Correct?

Mr Sithole: Correct.

Adv Bawa: All of you were well aware that there were all kinds of other reports, correct?

Mr Sithole: Correct.

Adv Bawa: Those were not included, correct?

Mr Sithole: Correct.

Adv Bawa: The Public Protector would also, on perusal of this index, be aware that it's not been included?

Mr Sithole: Correct.

Adv Bawa: Now attached to this Rule 53 record is a provisional report that says “2014 report.” Where did it come from Mr Sithole?

Mr Sithole: I don't know, I got it on the file. The Rule 53 record that was compiled, consisted of documents that came with the investigation file. So everything that was in that investigation file is what was included in that Rule 53 record.

Adv Bawa: You didn’t check with anybody as to what the status of that report was, whether it had actually reached nobody, whether it was a first, second or third draft… or anything like that?

Mr Sithole: No.

Chairperson: Thank you, Adv Bawa. The Committee will take a 15 minute break and be back at quarter to 12. Thank you.


Chairperson: Back to you, Adv Bawa.

Adv Bawa: Mr Sithole, do you know how that report that you found in the file got characterised as a Madonsela provisional report?

Mr Sithole: No.

Adv Bawa: Now when it came to the litigation of this matter, the counsel who was initially on brief was replaced in order for the same counsel who acted in the ABSA and Vrede matters, to take on both issues, because the issue in both instances was a question of personal cost orders, correct?

Mr Sithole: Correct.

Adv Bawa: That was regarded as a cost-saving mechanism to have the same counsel deal with the same issue, essentially, in two different cases.

Mr Sithole: Correct.

Adv Bawa: Then there were two heads of argument, one that had been brought by the Democratic Alliance and one that had been brought by CASAC. When it came to the heads of arguments stage of the proceedings, you then had two teams of counsel, one appointed to CASAC, one appointed to the DA matter, they compiled separate heads of argument and appeared in court to essentially argue separately but together on the same case. Correct?

Mr Sithole: Correct

Adv Bawa: Why was that done, Mr Sithole?

Mr Sithole: Firstly, there was a request from Adv Ngalwana at that stage of filing heads, where he said that it may be quite difficult for him to deal with both matters and he preferred that we get another silk to deal with CASAC and he would deal with the DA application. To the best of my recollection, that request came at the stage of the filing of the heads. Therefore we agreed to engage Anthony Plat SC, to deal with the CASAC heads and appearance.

Adv Bawa: If one has a look at the judgment, apart from any of the other factors… You will recall that one of the issues that arose in the Vrede Dairy matter was that financial constraints had been placed as a reason why certain aspects of the investigation could not be conducted, correct?

Mr Sithole: Correct.

Adv Bawa: As explained in the report, and in fact, Adv Ngalwana, SC, indicated to you inter alia, that a full explanation would need to be put before the court as to what those financial constraints would be, correct?

Mr Sithole: Correct.

Adv Bawa: If you look at the judgments in paragraph 29, one of the factors and I say one of the factors, because it's quite clear from the judgment that there were other factors as well, that the court took into consideration when considering the appropriate cost order to make was precisely this use of two different sets of counsel in the context of an Office who was claiming to have financial constraints, correct?

Mr Sithole: Correct.

Adv Bawa: The court said: “This must be seen in the light of the fact, that although two applications were brought, by two different entities, they were based on exactly the same facts, and dealt with the same project. Accordingly they also relied on the same legal principles. One set, of any of her very competent legal teams, could easily have dealt with both matters. In argument the decisions to appoint two legal teams was defended on the basis that two applications served before the Court. There is no merit in this argument for the reasons already alluded to. This decision by the Public Protector unfortunately shows a total disregard for the taxpayers, who will have to foot the bill and flies in the face of her complaint about how financial constraints limited her ability to properly investigate the complaints.” Do you see that?

Mr Sithole: Yes.

Adv Bawa: So effectively, the decision to have two sets of counsel contributed to the findings of the court in relation hereto, correct?

Mr Sithole: Correct.

Adv Bawa: Now at page 2293, you inform the Public Protector of the Vrede judgement, after it was handed down, correct?

Mr Sithole: Correct.

Adv Bawa: I don't necessarily want to take you through the email, Mr Sithole, but you were very disappointed when the judgment came down, correct?

Mr Sithole: Correct.

Adv Bawa: You laid the blame at the doors of the court for the judgment that time, correct?

Mr Sithole: Correct.

Adv Bawa: Looking back on it now, years later, would you agree you didn't put a proper Rule 53 record before this court, and that there may very well have been merit in some of the court's findings in respect of this judgment? Can I have your comment on that?

Mr Sithole: Yes. My comment in respect of the Record, is that we ought to have put the complete record before court. As I previously stated, I don't think it would be fair to say the PP should have done that. We should have done that as an investigation team. Maybe to preface my involvement in respect of the record. I joined the institution in May 2017. We filed a record in the Court in February 2018, which is about six months later. So I think those who were there before me ought to have known fully which other document should have formed part of the Record. As I've stated in my affidavit, I was involved at the tail-end of the investigation, if not at the end of the investigation, because the task team was not necessarily appointed to finalise the investigation, but merely to finalise the report. I think there was an instance where we only needed to get to a few more documents from the department or whatever. My involvement in that investigation was definitely at the tail-end. Even when I compiled them, which was before I went to Legal Services, I would not have known which other documents were missing. In respect of the report, as you indicated, the 2014 report was on the court file, while the Section 7(9) was on the court file and all other documents that were there. If we were to include all draft reports, there would have been too much back and forth, meaning we should have included the drafts that even predated the PP in that Rule 53 record and I would not have known about those drafts. That's why I'm saying if anyone must take responsibility for this, it's myself, the investigation team and Legal Services, because we should have made sure that we include things that even related to the time of Adv Madonsela. If you want me to comment further on the issue of costs, the employment of two sets of silk… I think the court was unfair to us, in that we probably would have spent the same amount because Adv Ngalwana would have prepared heads for the DA and CASAC and charged for both. Also, he would have argued both matters at the same time. I think if I remember at the hearing, they split a few hours between themselves, I think, two hours. In any event, SC, if you are requested by a senior counsel to add another senior counsel because he feels he needs to focus on the allegations that are raised by one party, and he wants someone else to assist with the allegations that are raised by another party at that stage of litigation, which is the filing of the heads and you're at the tail-end of litigation, you don't want to run the risk of then the same senior counsel coming and saying ‘I can't file heads for CASAC, because I was preoccupied with the DA heads.’ We might have been wrong in employing both two sets of counsel but I think it was a bit unfair to criticise us for having employed both sets of counsel. In any event, the issue of costs is the discretion of the court such that even if we had won in opposing that review application, the court would have simply granted costs for one set of counsel. That is my view on that aspect of the cause-finding.

Adv Bawa: Do you accept that your own client costs would become much higher, because you've got two sets of counsel? Would you agree with that?

Mr Sithole: Yes.

Adv Bawa: But that wasn't primarily one of your gripes with the judgment. If you go back to the email, you imputed bias on the court in respect of the judgment that was written, over and above the legal principles. You sent an email to a number of them and you expressed disappointment in the judge and the judgment; you impute bias on the part of the judge writing this judgment. Did you have a particular reason for imputing bias on the part of the judge?

Mr Sithole: No, other than some of the things that were stated in the judgment. For me the judgment was more personal than it was a discharge of justice.

Chairperson: You faded. Please repeat what you said?

Mr Sithole: I was saying that for me some of the things that were stated by the judge were more personal to the PP than they were to the discharge of justice. At that stage, I was of the view that the judge was biased against the PP.

Adv Bawa: You concluded that a full bench would not arrive at a different conclusion?

Mr Sithole: That was my view.

Adv Bawa: You wanted the PP’s directives so that you could instruct an attorney to file a notice of appeal by the next day if possible, correct?

Mr Sithole: Yes.

Adv Bawa: If we go further up in the email, you say that the judge considered the differences between the provisional report and the final report, correct?

Mr Sithole: Correct.

Adv Bawa: You then have a debate amongst yourselves about drawing an analogy between a provisional report that there is no legal status; and a final report, by drawing the analogy between a draft judgment and a final judgment, correct?

Mr Sithole: Correct.

Adv Bawa: A day after the judgment, on the 21st, you sent an email to Ms Cilliers, right?

Mr Sithole: Yes.

Adv Bawa: You then asked Ms Cilliers, “Erica is there no provisional report of November 2014?” Do you see that?

Mr Sithole: Yes.

Adv Bawa: Are you asking if the provisional report had been signed?

Mr Sithole: Yes.

Adv Bawa: Did you expect one that would be signed by Ms Madonsela as opposed to one that wasn't signed? Correct?

Mr Sithole: Correct.

Adv Bawa: Ms Cilliers’ response to you, is the following, “None that I have. I drafted the provisional report during November/December 2014 together with the letters. They were initially sent to the TT Secretariat”, that’s the Think Tank Secretariat, “to check if we were on the right path.” For all you know, the one you found in the file could have been that one, correct?

Mr Sithole: Yes, but here I was asking for a signed report.

Adv Bawa: Right. She then tells you, “the first provisional official report for the Think Tank was submitted on 6 February 2015. Certain revisions were suggested by Ms Venter, and then it was resubmitted a couple of days later.” Correct?

Mr Sithole: Correct.

Adv Bawa: “The report served before the Think Tank on 14 April 2015 and the suggested revisions. This was done and submitted on 28 April 2015, with the revised Section 7(9)s and discretionary notices.” So effectively, you know, the day after the judgment, that what you've put in the Rule 53 record before the court was not correct. Is that not so, Mr Sithole?

Mr Sithole: That is correct, SC and I have already explained my position in respect of that. Actually, this email supplements what I was saying in that I would not have known that there was a report sent to Ms Venter in 2014. I would not have known about the minutes of the Think Tank in February 2015. That is way before my time. When I compiled the record, it was on the basis that I was part of the task team that was tasked to finalise the Vrede report. Still it goes back to me saying even if there is incompleteness of the record, as I concede, it cannot be at the door of the PP. It should be at our door.

Adv Bawa: Well, Mr Sithole, that may well be so but when the PP came into office in October 2016, we had Mr Tshiwalule, whose evidence was that he had provided the PP with a stick of all the reports that had been left behind by Adv Madonsela. Were you aware of that?

Mr Sithole: No.

Adv Bawa: Would you agree that that report that was left behind by Ms Madonsela and given to the PP, should probably have found its way into the Rule 53 record?

Mr Sithole: Now I agree because my thinking was that the one that formed part of the record was Adv Madonsela’s report.

Adv Bawa: This conversation that you're having with Ms Cilliers on 21 May 2019, should probably have been had before the Rule 53 record was filled?

Mr Sithole: Correct.

Adv Bawa: You're now a little bit older and wiser than you were in 2017, correct?

Mr Sithole: Yes, correct.

Chairperson: Adv Mpofu?

Adv Mpofu: I feel left out here, I am none the wiser or even older. I want to state the following, Chair, the material that is covered with this witness goes far beyond the issues that are covered in his statement or annexures. My issue is that obviously Adv Bawa is entitled to deal with any documents that are part of the bundle that has been uploaded, because theoretically, we've all looked at them but what she cannot do is to converse documentary evidence in the kind of detail she's going into, which is not (a) canvassed in the statement, or (b) part of the annexures to this witness. The whole purpose of the rule that says we must be given a statement seven days before the witness comes here, is to assist us in preparation for that witness. For the record Chair, we have not enforced the seven day rule, because we want this process to move as quickly as possible. We received this witness statement, I think, two or three days ago, but that's an arrangement between us and the Evidence Leaders where we have not been fastidious about adherence to the seven day rule. But, in fact, the objection I'm raising would have applied even if we had been given the statement 100 days ago. The point is that the intention of that rule is to allow for preparation. Now if we're going to be misled, and I don't mean that in a negative way, into preparing for particular issues that are raised in the statement, for example, on the Vrede Matter, covered in Statement B, such as the issues about the briefing, the two sets of counsel and all sorts of things raised there. I'm not saying those issues are not relevant. I'm simply saying we are not, we have not been placed in a situation where we can prepare for them in respect of this witness. Therefore, I don't want to interrupt or stop the examination of the witness but I'm just saying that if it goes like this, we may not be in a position to cross-examine this witness today because we would want to exercise our right when we now know exactly what it is that has been covered with him to prepare for his cross-examination. I think that would be the worst case implication. Obviously we'll try to avoid that. But I think that I should raise it as early as possible. Thanks.

Chairperson: Thank you Adv Mpofu. Adv Bawa?

Adv Bawa: Yes, there are issues that will be dealt with by the witness, which go beyond that, which I accept. The documentation has been provided to them prior to this and part of the reason for that is to run a process to affidavits and provide documentation. The underlying documentation was provided prior to the affidavits to do that. I think, Chair, if at the end of my direct, Mr Mpofu feels that he cannot cover certain issues during his cross-examination, I have indicated that Mr Sithole will be back next week with Mr van der Merwe. I don't have issues if that's how Mr Mpofu wants to deal with it in that regard. I accept that the affidavit deals with that in general terms. In fact, I pointed out to them where the documentation was in that regard. So there are going to be those issues, and I suggest that in practical terms, you deal with it on that basis.

Adv Mpofu: Chair, may I respond? Thank you very much. I appreciate that and I have a proposed solution in mind. Let me start by saying that in this witness statement there are literally five or six annexures, and none of them quite frankly, have been referred to now, if I'm not mistaken. So according to my learned friend, we're not there yet. We've now got something like 10 other annexures which are not part of this, and in respect of which we have not prepared or canvassed with the Public Protector or any other witness. What I would propose, Chair, is that my learned friend continues with her evidence-in-chief and we will try to identify those documents that she refers to; and then maybe, if you are inclined to grant, which I'm sure you are, the recall of the witness so that he is only cross-examined after he has given his second instalment because otherwise, in any event, it would be a waste of time to do it now and do it again next week. In that way, I think we can kill two birds with one stone, because then we will cure the preparation gap. At the same time, we will not interrupt the examination-in-chief now. The reality of the matter is that, surely the idea is not that… This is a big inquiry with many documents, and I don't think anybody in their right mind can suggest that every time there is going to be a witness here, we must read all 10 000 pages, in case something gets referred to. The idea is to narrow it to a particular witness.

Chairperson: Thank you, Adv Mpofu. We are not going to change course now. You are going to have to continue with your leading-of evidence up until lunch. The witness is coming back next Thursday, but on a different matter. I want us to continue, Adv Bawa.

Adv Mpofu: Chair, I think you are misunderstanding what I am saying.

Chairperson: No, I got it very clearly. I am just not accepting that we hold back on cross-examination altogether. I am very clear on that.

Adv Mpofu: That's fine, fair enough. I'm certainly not in a position to cross-examine on the new material that I didn't know was going to be canvassed. But if you want two cross-examinations, that's fine. That's your prerogative. Thanks.

Chairperson: Adv Bawa?

Adv Bawa: I have forgotten where we were at. I was canvassing with you that after the judgment was handed down, you were well aware that what had been put before the High Court was not correct?

Mr Sithole: It was not complete.

Adv Bawa: In the course of the litigation proceedings, you received advice from Adv Ngalwana, correct?

Mr Sithole: Correct.

Adv Bawa: Included in that, he advised that if there was anything in the Rule 53 record that had been omitted, it needed to be supplemented with an explanation.

Mr Sithole: Correct.

Adv Bawa: Do you have any doubt that Adv Mkhwebane would have read the opinion that had been provided by Adv Ngalwana?

Mr Sithole: Do I have any doubt that…?

Adv Bawa: Would Adv Mkhwebane have had regard to advice rendered by Adv Ngalwana?

Mr Sithole: Yes.

Adv Bawa: You then take the Vrede judgment on appeal to the SCA, correct?

Mr Sithole: Correct.

Adv Bawa: Leave to appeal was refused, correct?

Mr Sithole: Correct.

Adv Bawa: If you go to page 2294 of the emails, it shows that on the day just before judgment comes down, you also received a judgment in your favour in an application to compel was being dismissed with costs, correct?

Mr Sithole: Correct.

Adv Bawa: What matter was that?

Mr Sithole: I think this was the PP’s application for a declaratory order against Adv Breytenbach and a few other members of the DA.

Adv Bawa: Okay, is that what is commonly referred to as the defamation matter?

Mr Sithole: Correct.

Adv Bawa: That matter started before you came into the Legal Services office, correct?

Mr Sithole: Correct.

Adv Bawa: Can you tell me what relief is being sought in that matter?

Mr Sithole: It was a relief for a retraction of statements made at the press conference which suggested that the PP was on the payroll of the State Security Agency. Also another relief sought was that such retraction must be made in the same press conference where the line of retraction was put in the relief, to the effect that the statement they made was wrong that the PP is on the payroll of the State Security Agency. In a nutshell, what was the relief sought there?

Adv Bawa: That relates to a statement that was made before after she was appointed as the PP?

Mr Sithole: As far as I recall, it was before she was appointed. I think it was after Parliament recommended her appointment, if I remember correctly but I cannot state it factually.

Adv Bawa: What is the status of the matter?

Mr Sithole: I think the Office withdrew that matter.

Adv Bawa: When did they withdraw that matter?

Mr Sithole: I think we withdrew that matter recently, but perhaps Mr van der Merwe can assist me, when we come back, to get those facts right. In terms of the status itself, the merits were never argued in court. What was before court throughout this time, was the interlocutory application that was launched by the DA in terms of rule 35(12), where they sought to compel the PP to disclose some of the documents relating to her employment at the State Security Agency, and I think, when she was overseas.

Adv Bawa: Was this the only defamation action against those kinds of allegations brought against the PP that was taken up?

Mr Sithole: The only one I know of, yes.

Adv Bawa: If we go to paragraph 35 in your affidavit, you refer to the withdrawal of cases, correct?

Mr Sithole: Correct.

Adv Bawa: Can you maybe explain how that came about?

Mr Sithole: I think it came about as a result of financial constraints. I think this was soon after I joined Legal Services, but I do remember that it was as a result of financial constraints that the PP took the decision to withdraw some of the matters that were pending.

Adv Bawa: The instruction that was given is a withdrawal initially of opposition, as a result of financial constraints being experienced, and that the Office would reserve its right to fully participate in the proceedings and provide affidavits when necessary, correct?

Mr Sithole: Could you please repeat that, I missed your question.

Adv Bawa: If you look at the affidavit, there was initially an instruction that you must withdraw the opposition and that PPSA would reserve its rights to fully participate in the proceedings, and will deliver an explanatory affidavit recorded as necessary in the adjudication. Correct?

Mr Sithole: Correct.

Adv Bawa: Now if I take you to TM6, which is 4059, the instruction was amended and the attorneys were instructed to negotiate with the applicant's attorneys by indicating to them that due to financial constraints, the PPSA intended to withdraw its opposition on condition that it was not liable for costs, correct?

Mr Sithole: Correct.

Adv Bawa: If the applicants accepted the proposal, then a notice of withdrawal would have been served?

Mr Sithole: Correct.

Adv Bawa: You would have been provided such a notice by them, and would effectively close your file on the matter, correct?

Mr Sithole: Correct.

Adv Bawa: Now if you look at 456. This is the list of judicial review matters, I think, which had been the subject matter of the withdrawal instruction, correct?

Mr Sithole: Correct.

Adv Bawa: Right. Number one was, shall we call it a Madonsela report?

Mr Sithole: Correct.

Adv Bawa: Number two was a Madonsela report, correct?

Mr Sithole: Correct.

Adv Bawa: Number three, emanating from the State of Capture Report, was also a Madonsela report, correct?

Mr Sithole: Correct.

Adv Bawa: In fact, is that the same Mr Zwane that is involved in the Vrede matter? The erstwhile MEC of Agriculture?

Mr Sithole: I think so.

Adv Bawa: Number four was the South African Bureau of Standards; that matter actually preceded that High Court… but there was a decision not to take it on appeal because of costs, correct?

Mr Sithole: Correct.

Adv Bawa: Number five was a Madonsela report, correct?

Mr Sithole: Correct.

Adv Bawa: Six, seven and eight were not Madonsela reports, correct?

Mr Sithole: Correct.

Adv Bawa: What was your instruction in respect of six, seven and eight?

Mr Sithote: I think the instruction was that there be a withdrawal, but we changed to continue opposition. I can't remember which one between six and seven already had a date of the hearing but eventually, we continued with the opposition of these matters. I just can't remember the circumstances under which we did so.

Adv Bawa: You will recall that those matters were proceeded with, correct?

Mr Sithole: Correct.

Adv Bawa: In fact, those matters were also proceeded, correct?

Mr Sithole: Correct.

Adv Bawa: You indicated that number ten and eleven are essentially one report, correct?

Mr Sithole: Correct.

Adv Bawa: There was an instruction not to withdraw on those matters, correct?

Mr Sithole: Correct.

Adv Bawa: Now page 2264 referred to the municipal workers union matter, which was also intertwined with another matter. The recommendation there was that both had to be withdrawn, correct?

Mr Sithole: Correct.

Adv Bawa: Would it be fair to say, Mr Sithole, that effectively it was a qualified instruction, to withdraw the matters? You did not withdraw the matters in respect of all matters that were not set down?

Mr Sithole: Could you contextualise ‘qualify’?

Adv Bawa: Essentially what you had withdrawn at that stage was the first five matters on the list?

Mr Sithole: Yes.

Adv Bawa: I don’t want to be seen as misrepresenting, but there are other matters that come later that you took decisions on that you do not oppose, correct?

Mr Sithole: Correct.

Adv Bawa: Page 2219 refers to the matter of the Johannesburg Roads Agency (JRA) and this was one that you didn't oppose; that came later, correct?

Mr Sithole: Correct.

Adv Bawa: In fact, the complainant ended up opposing and you defending your report. Do you recall that?

Mr Sithole: Yes.

Adv Bawa: It ended up with the report being set aside and the Public Protector's Office having to pay the costs?

Mr Sithole: Correct.

Adv Bawa: The complainant was not lumped with costs. Do you know what informed the decisions as to what was to be withdrawn and not withdrawn?

Mr Sithole: I am not sure if I follow SC, is the SC referring to the reasons for withdrawal, such as financial constraints and matters where there is no set down?

Adv Bawa: No. Let’s assume for purposes of my argument, there are ten matters that are not set down and you opt for five to be withdrawn and five not to be withdrawn. What is the decision that informs which ones you don't withdraw and which ones you do?

Mr Sithole: I think I’ll express my view, SC. It depended on how far the litigation of the matter was. If the matter was towards finalisation, we were less likely to withdraw opposition. If I compare the withdrawal and opposition to the JRA review application, it's one of those that came with others where we decided not to oppose and not to withdraw, per se. Our reason was solely on the basis of financial constraints; so it was not a one size fits all decision where we said ‘It does not matter who you were, we are just going to oppose.’ So there were various reasons for that. Hopefully, SC, you will have Mr Nemasisi come and amplify this. At the time, I was in that unit, assisting him but I'm ready to give an explanation, where I remember.

Adv Bawa: That’s fine. Thank you, Mr Sithole. We are grateful that you are able to do that. Your willingness is appreciated. If we take you to 2292, over and above the list of existing matters, you also embarked on new litigation, correct?

Mr Sithole: Correct.

Adv Bawa: So for example, in the Minister of Finance / PPSA matter, applications were launched, and you made a call as to which matters to litigate. It's not like you are standing entirely still on the litigation front?

Mr Sithole: Correct.

Adv Bawa: The only point I'm trying to make is that financial constraints didn't curb all litigation. Would you agree with that?

Mr Sithole: Yeah, I agree with that. I would like to qualify that, SC, as I know you would like to take me to task on that. Most, financial decisions of a public institution, as you will know, are considered on a financial year basis. So in a financial year, which starts at 1 April and ends at 31 March, you will have, let's say, a review, Chairperson, that is filed in November of this specific financial year. By the time you get to the new financial year, you have a new budget, then you can take a decision to say ‘We have decided not to oppose this matter because we have funds in the new financial year’. That is why this sort of seems like we had spent a lot of money on litigation, but when you look at it, some of the litigation is under the period of three years. So you would have spent about R3 million in three years but it will appear as if you spent R3 million in one matter as if that matter was finalised on this month. That arrangement is important, SC. I'm happy, Chair and SC, to speak on the financial arrangements of a specific financial year next week. I was just simplifying as to why you will have some matters that you are not opposing now and it then transpires that you actually did oppose that matter. I think in a few of these matters, we took the same approach.

Adv Bawa: That’s fine, Mr Sithole, thank you. I want to take you to the question of the selection of attorneys that we touch on in your report. There is a panel of attorneys that is appointed, correct? I think you'll see in Bundle I 5534 and 5542 that you established a panel in 2018 of 38 attorneys firms and in 2020 that panel was revised to 18 different attorneys firms, correct?

Mr Sithole: Please can you flight that, SC?

Adv Bawa: Yes, let’s flight it. Mr Sithole, you effectively put out a supply chain management process… That is your 2020 list [on the screen] and counted about 18 law firms on it. Would that be about right?

Mr Sithole: Yes. If you look at the first column, it refers to the bid number of the tenderer. You are correct that in total there were 18 firms, if not more.

Adv Bawa: Right. Do you make this list if you scored more than 70 points?

Mr Sithole: Correct.

Adv Bawa: In the previous list of 2018 you see a list of 38 law firms on it. Do you recall that or do you need us to put it up?

Mr Sithole: I think I recall that.

Adv Bawa: Now you must appoint an attorney that's on the panel. Correct?

Mr Sithole Correct.

Adv Bawa: Who selects the attorneys firm?

Mr Sithole: It is us, Legal Services.

Adv Bawa: Does the PP have any input into who's appointed?

Mr Sithole: No, not really.

Adv Bawa: How do you decide which attorneys to brief?

Mr Sithole: It depends on the matter, SC, but the unfortunate part for us is that unlike in other SCM process, where you will request the quote and then get the cheapest person, we have rates; and if someone accepts our rates (and fee structure) then it means there will be no need for us to get a quotation from three other attorneys who will do the matter cheaply. Therefore, we use our discretion on who to appoint. The considerations vary from firm to firm, such as whether the firm has dealt with a matter like this before, such as whether they are matters concerning the same issues, which will then be convenient to be dealt with by a specific firm. So there is no one size fits all for the firms that are appointed.

Adv Bawa: You then conclude a written agreement with whoever you conclude a contract?

Mr Sithole: Correct.

Adv Bawa: Mr Sithole, in this appointment letter, you essentially confirm the matter they were appointed for as well as your instruction to oppose and brief counsel. Counsel is usually determined by the PP, correct?

Mr Sithole: Correct.

Adv Bawa: The ultimate say on which counsel to brief is determined, is decided by the PP?

Mr Sithole: Correct.

Adv Bawa: You generally let the senior counsel determine who they want as a junior to work with him in most instances?

Mr Sithole: Correct.

Adv Bawa: If you go down, in your pro forma letter, you advise of the appointment; that there must be a written acceptance and that the tariff applies; and that you expect them to exercise reasonable professional skill, care and diligence. Correct?

Mr Sithole: Correct.

Adv Bawa: You then have a system of payment where the Legal Services department, the end user department, confirms the deliverables and then payment is effected through the PP Office, correct?

Mr Sithole: Correct.

Adv Bawa: I think you set that out in your affidavit. If there's non-compliance with the agreement or the tariffs, then you're not able to process, correct?

Mr Sithole: Yes. If there is an issue that we can't resolve with the service provider, then we wouldn't process that payment.

Adv Bawa: Is the system similar when you appoint consultants?

Mr Sithole: No, because we don't have a consultants panel, so to speak. Well, we do have now, but it is a panel of experts, not necessarily consultants. You will find consultants in the expertise industry and in the legal profession also. We don't have a panel that specifically says these are consultants that will only be appointed to render a specific service.

Adv Bawa: When you appoint counsel, do you know what criteria is looked at for purposes of appointing counsel?

Mr Sithole: Yeah, usually the first will be seniority and then the expertise in that specific field. For example, if it's administrative law, you want someone who's done administrative law; if it's contract law, you would want to call a commercially-oriented SC. The criteria is basically how good you are in that field.

Adv Bawa: And you either brief counsel for purposes of legal advice or purposes of conducting litigation, correct?

Mr Sithole: Correct.

Adv Bawa: Can I take you 229? In the Mostert matter in January 2019, you tell the attorneys who your preferred counsel is, and who else to brief, correct?

Mr Sithole: Correct.

Adv Bawa: Who would you have gotten that instruction from? Who would you have received that information on the counsel from? Who would have told you which counsel to brief?

Mr Sithole: It would have been the PP.

Adv Bawa: Now I'm going to take you to some invoices, which are to be found at Bundle F at 12. The heading says “Offer to appoint to act on behalf of the Public Protector in the provision of a legal opinion from senior counsel.” Was that instruction given, Mr Sithole?

Mr Sithole: Yes.

Adv Bawa: What does that mean?

Mr Sithole: I am not sure what you mean?

Adv Bawa: Explain to us what you understand by that phrase?

Mr Sithole: The offer to act on behalf of the PP? It's an instruction to an attorney to appoint counsel to settle an opinion.

Adv Bawa: So it's an instruction to appoint a senior counsel to provide a legal opinion?

Mr Sithole: Yes.

Adv Bawa: Was that done, Mr Sithole?

Mr Sithole: Yes and there was an invoice in that regard.

Adv Bawa: If we look at the details of the opinion that says on 10 March 2019, “Perusal of draft opinion from Mr Ngobeni. Made amendments and sent it to him”. Who's Mr Ngobeni, Mr Sithole?

Mr Sithole: Adv Ngobeni is an advocate we briefed to provide opinions for us on, I think, three or two matters, if I’m not mistaken.

Adv Bawa: Is he a senior counsel?

Mr Sithole: No, not to my knowledge.

Adv Bawa: There is an opinion provided to the attorneys firm on 11 March 2019, “Received a revised opinion. Perusal and consideration, redrafted opinion and forwarded to the same client”. Do you see that?

Mr Sithole: Yes.

Adv Bawa: Do you recall what opinion this was?

Mr Sithole: I am not sure from the invoices, SC, unless we scroll down to the actual opinion.

Adv Bawa: I'll take you to it in a moment. That's the invoice that's provided in respect of the service that's rendered by Paul Ngobeni, correct?

Mr Sithole: Okay.

Adv Bawa: It doesn't on that letterhead say that he is an advocate. Do you see that?

Mr Sithole: Yeah.

Adv Bawa: You signed off on this, Mr Sithole. Correct?

Mr Sithole: Correct.

Adv Bawa: It says “Legal opinion on President’s Investigation”; would you have filled out the GRN form?

Mr Sithole: Yes.

Adv Bawa: Explain to the Committee what the form is.

Mr Sithole: It is an SCM form for the submission of invoices for payment. So it's more like a process that is put in place to confirm a service and payment to the accounting officer.

Adv Bawa: So you confirm the service in order for payment to be made, correct?

Mr Sithole: Correct.

Adv Bawa: So you confirm the service, it then goes to SCM Finance and then it gets paid, correct?

Mr Sithole: Correct.

Adv Bawa: It says “Legal opinion on President's investigation.”, correct?

Mr Sithole: Correct.

Adv Bawa: This is the submission to the Portfolio Committee on Justice and Correctional Services. This is in October 2018, correct?

Mr Sithole: Correct.

Adv Bawa: So we're not near the start of a financial year. We are in that period, in which we were having financial trouble and we were withdrawing all kinds of matters, correct?

Mr Sithole: Correct.

Adv Bawa: We see on 21 July 2019, “Perusal of relevant legislation and case law. Telephone discussions with Adv Mankge and Mr Ngobeni, regarding the email from Mr Nemasisi.” This would have not been in your time, correct Mr Sithole?

Mr Sithole: Yeah but I was already with him at Legal Services in April… in July 2018.

Adv Bawa: So, there you briefed Adv Mangke and Mr Ngobeni, correct?

Mr Sithole: Correct.

Adv Bawa: Do you recall obtaining an opinion from Adv Mangke and Mr Ngobeni on this matter?

Mr Sithole: I can’t recall, SC. I am sure I can obtain this information.

Adv Bawa: When you come back next, will you check if you have an opinion that’s provided by Adv Mangke and Mr Ngobeni.

Mr Sithole: Right.

Adv Bawa: On the 25th, the attorney says “Amending the legal opinion, conducting further research, finalising the legal opinion and sending it to client”. Do you see that?

Mr Sithole: Correct.

Adv Bawa: There are two fees, a consultancy fee for Mr Ngobeni, of R77 500 and counsel’s fee for Adv Mangke. Do you see a distinction in the fees?

Mr Sithole: Correct.

Adv Bawa: Can I ask whether there would have been an instruction to the attorneys to engage the consultant and brief the advocate in this instance?

Mr Sithole: Yes.

Adv Bawa: Because if there wasn't such an instruction, you would never have paid the fee notes, correct?

Mr Sithole: Correct.

Adv Bawa: Where would that instruction have emanated from?

Mr Sithole: In practice, either the PP or it would have been suggested by Mr Nemasisi. That one was not sent to me so I do not know.

Adv Bawa: We then see an instruction on 1 October, 2018, “Instruction to settle the letter sent to the National Speaker”. Do you see that?

Mr Sithole: Correct.

Adv Bawa: We see that payment for goods received on 13 December “Legal Services letter to the National Assembly.” Whose signature is that?

Mr Sithole: That's mine.

Adv Bawa: That's you? Okay. Go further down. So you received a deliverable for that on 14 December?

Mr Sithole: Correct.

Adv BAwa: Let’s go further down, and you then see "Legal Service’s submission to the Portfolio Committee of Justice disbursement" of R153 000. Do you see that?

Mr Sithole: Correct.

Adv Bawa: Alright, do you see that on 13 December 2018 you approved payment for that? Correct?

Mr Sithole: Correct.

Adv Bawa: Let’s go further down. On 17 July 2018 there was a submission to the Portfolio Committee on Correctional Services, correct?

Mr Sithole: Correct.

Adv Mpofu: Chair?

Chairperson: Just a pause. Adv Mpofu?

Adv Mpofu: Thank you Chair. Sorry, I have tried not to interrupt but I wanted to raise this before the lunch break, it might assist us when we come. I would like to really know what this is an aid of in relation to the motion? Quite frankly, I'm completely at sea as to what the purpose of this is, particularly as it involves monies paid to people; the names of people and attorneys; and all sorts of other things, which I'm sure should not just be done in vain. If we're going to disclose people's financial affairs, there must be a good reason. I just don't know, in relation to the motion… I suppose it's a variation of the question I asked earlier. I was told it had something to do with Vrede, and what what. Maybe it's just me, Chair, but I’d like some clarity.

Chairperson: We will give you that clarity. Go ahead.

Adv Bawa: I would like to finish this, Mr Mpofu. We have a defence of financial constraints in the same period in which these expenses are incurred. That's the first thing. The second thing is we have an Office of a Public Protector that must operate independently. I want to show during this period of time specifically who was employed and for what purposes. I have specifically picked three invoices. If you allow me to come to the last one, we will see. I would really like to finish this before the lunch adjournment.

Adv Mpofu: Chair, again, I am none the wiser but for the sake of progress, allow it to continue.

Chairperson: Proceed.

Adv Bawa: So we're now in July 2018 and there are consultations happening in respect of the submissions to the Portfolio Committee on Justice and Correctional Services, correct?

Mr Sithole: Correct.

Adv Bawa: At this stage, we have Adv Paul Ngobeni, right?

Mr Sithole: Correct.

Adv Bawa: This is a disbursement on the attorneys fee note, correct?

Mr Sithole: Correct.

Adv Bawa: He is billing essentially for travelling, reading, researching and reading a revised letter There is no other deliverable that he is billing you for. Can you see that?

Mr Sithole: Corect. You mean except for item 2, 3 and 4. I am not sure if I understand the deliverables.

Adv Bawa: Sorry. I'm phrasing that very badly. My apologies, Mr Sithole. I had prefaced earlier on and asked you if you received an opinion from Adv Ngobeni…Mr Ngobeni, I am not sure anymore what to refer to him as, and the other advocate. The point I was trying to make is there doesn't seem to be from the invoice that he compiled an opinion. He seemed to be reading papers, reports, correspondence and reports received. He also did research and drafted a response for the Public Protector. He then read a revised letter, which he responds to. The only point I was trying to make was it doesn't appear from the fee note that there was an opinion. I didn't want to send you off on a wild goose chase to look for an opinion that might not exist.

Mr Sithole: Okay.

Adv Bawa: But I could be wrong.

Mr Sithole: Yes.

Adv Bawa: Do you agree that it doesn't reflect an opinion being provided?

Mr Sithole: I agree that you could be wrong, SC. I am sure I can find that out, either from the attorney or from our records; but if he was briefed to do an opinion then there must have been an opinion.

Adv Bawa: Okay, let’s go down. The advocate bills for research drafting but he did not tell us what he is drafting. Do you know what he was drafting Mr Sithole?

Mr Sithole: No but context will lead to an inference that it was an opinion. I think if we look at the GRN.

Adv Bawa: Okay. The GRN says “Submission to the Portfolio Committee.” Do you recall that? Should we go back up?

Mr Sithole: Yeah cause I’m not following, SC.

Adv Bawa: It says “Legal Services submission to the Portfolio Committee on Justice disbursement.” Do you see that?

Mr Sithole: Yes.

Adv Bawa: That was the invoice for the disbursement of the fees in relation to the submission to the Portfolio Committee. I want to take you to the last invoice. Mr Sithole, would there have been due diligence done on the people who are briefed or the consultant who is engaged? Would you have checked up on them in any way?

Mr Sithole: Not me, SC.

Adv Bawa: Would you have known if Mr Nemasisi would have done that?

Mr Sithole: Yes, I think he would have done that.

Adv Bawa: Okay, go down. It is the letter of the appointment in June 2018 of Seanago Attorneys to prepare submissions for the Portfolio Committee, correct?

Mr Sithole: Correct.

Adv Bawa: You will see that there is a legal opinion on the Minister of Finance, Tito Mboweni, correct?

Mr Sithole: Correct.

Adv Bawa: Are you in possession of this legal opinion, Mr Sithole?

Mr Sithole: I am sure I can get it, SC.

Adv Bawa: Did you sign off on this invoice?

Mr Sithole: Correct.

Adv Bawa: That is in mid-2019, correct?

Mr Sithole: Correct.

Adv Bawa: Do you see the second entry of this which says Mr Ngobeni’s fee?

Mr Sithole: Correct.

Adv Bawa: There was an instruction to the attorney in respect of an opinion on Tito Mboweni, presumably to the attorney to brief Mr Ngobeni to provide it. Would you agree?

Mr Sithole: Agreed.

Adv Bawa: Mr Ngobeni says “I received and pursued draft of public statement from Office of the Public Protector”. Do you see that?

Mr Sithole: Yes.

Adv Bawa: He then says “Draft opinion and advisory on strategy.”

Mr Sithole: Correct.

Adv Bawa: What strategy would that be, Mr Sithole?

Mr Sithole: I am not aware, SC. Unless the opinion is attached to this GRN.

Adv Bawa: Do you usually attach the opinions to the GRN, Mr Sithole?

Mr Sithole: I saw on one you attached them but on this one I don't think you have.

Adv Bawa: My apologies, I am interrupting you Mr Sithole. Sorry.

Mr Sithole: It is okay.

Adv Bawa: It says “Draft document Mboweni, unconstitutional conduct and utterances in opinion form.” Do you see that?

Mr Sithole: Yes.

Adv Bawa: Do you know what conduct and utterances are being referred to?

Mr Sithole: I can’t remember SC, but I am sure I can be refreshed if you have some form of documentation on this, other than this invoice. Or probably when I give the actual opinion.

Adv Bawa: It then says “Researched and analysed renewed political attacks on the Public Protector. The matter of the ABSA ruling is on appeal and rules of Parliament prohibits a discussion of the same matter pending before the courts and yet the Parliamentary Committee was scheduled to deliberate on the same matter, with a whole lot of articles.” Do you see that?

Mr Sithole: Yes.

Adv Bawa: Do you have any comment on that?

Mr Sithole: No, not at this stage.

Adv Bawa: “Research, drafted and published article on Minister’s Mboweni unwarranted attack on the Public Protector”.

Mr Sithole: Correct.

Adv Bawa: Go down. There it says “Research, drafted and published article on State Security's attack on Public Protector.” Do you see that?

Mr Sithole: Yes.

Adv Bawa: Would you agree with me that this looks like invoices rendered for purposes of producing articles?

Mr Sithole: No. To my recollection, Adv Ngobeni rendered opinions…legal opinions that is.

Adv Bawa: Sorry, sorry, it says there “Research, drafted and published article on State Security Minister's attack on Public Protector – Constitutional mandate of Public Protector and apartheid era classifications of documents issued published act “ and it gives the website at which that was published.

Mr Sithole: Okay.

Adv Bawa: Do you see that, Mr Sithole?

Mr Sithole: I see that, SC.

Adv Bawa: That is not an opinion, that is something that is published on Africa News 24. If you go up you will see that article, “Research, drafted and published article on Mboweni’s attack on the Public Protector, on predicting judicial review“. Do you see that the article was published by Africa News 24?

Mr Sithole: Yes.

Adv Bawa: If you go further up. Similarly, look at published articles at those addresses that he looked at.

Mr Sithole: Okay.

Adv Bawa: I'm saying to you that the way this fee note reflects, or the hours spent, is that effectively Mr Ngobeni got paid for publishing articles on websites. Do you have any comments on that?

Mr Sithole: Not really, SC, other than to say as far as I know, he was engaged to prepare an opinion for us. I think in item one of his invoice, that's what he states. Perhaps, SC, he can shed light if you want to bring him before the Committee.

Adv Bawa: Go up to the opinion. It says “Received and pursued the revised draft of public statements from Office of Public Protector 1.5 hours“. He then says “On the first and the second day draft opinion and advisory on strategy, draft document, Mboweni unconstitutional conduct and utterances in opinion form 13 hours.” You see that?

Mr Sithole: Yes.

Adv Bawa: Are you saying that was what he was briefed to do?

Mr Sithole: Yes. As far as I know.

Adv Bawa: Is that legal advice?

Mr Sithole: An opinion will be legal advice, but the rest would not be legal advice.

Adv Bawa: Is this a good time to take the adjournment?

Chairperson: Yes, I was just about to ask you to stop. Let us take a lunch break until 14:00.


Chairperson: Welcome back everybody. It is exactly 14:00. The original plan was for Adv Bawa to finish by lunch break. Please continue. Mr Sithole, are you there?

Mr Sithole: I am here, Chair.

Chairperson: Thank you. Adv Bawa?

Adv Bawa: Mr Sithole, before the adjournment we were dealing with the last of the invoices, and I couldn't recall whether you had confirmed if Mr Ngobeni is a member of the bar or not. Is that correct?

Mr Sithole: I had confirmed it, yes.

Adv Bawa: To your knowledge, he is not an SC?

Mr Sithole: No.

Adv Bawa: Mr Sithole, have you met him?

Mr Sithole: Not in person.

Adv Bawa: In person or virtually, as they have become synonymous these days?

Mr Sithole: No, not even virtually. I think we had a telephonic call with him, myself and the late Chief of Staff.

Adv Bawa: Are you aware of his involvement in any other matter apart from that which I have put onto the screen that we've discussed today?

Mr Sithole: I only know of his involvement in respect of the opinions which we have paid for.

Adv Bawa: Sorry Mr Sithole, we are having challenges with the sound.

Chairperson: Try and reposition yourself and check your volume as well. We need to hear you, so we don’t misrepresent you. Adv Bawa?

Adv Bawa: Mr Sithole, the opinion that was rendered which we referred to earlier, was sent with a Seanago letterhead. Do you recall which one I was referring to?

Mr Sithole: Yes, I think the SC was referring to the CR17 one.

Adv Bawa: Right. If you go to page 12 of your affidavit, there is a screenshot. Mr Sithole, in the course of our consultations, you had provided me with a number of opinions that had been rendered to the PP’s Office over a period of time, correct?

Mr Sithole: Correct.

Adv Bawa: This is by no means a closed list of opinions, agreed?

Mr Sithole: Yes.

Adv Bawa: We are referring to the opinion that says “Public Protector Ramaphosa Opinion”, correct?

Mr Sithole: Correct.

Adv Bawa: That is the opinion of Mr Ngobeni, who then sent it with a Seanago letterhead, correct?

Mr Sithole: Correct.

Adv Bawa: Do you know why that was done?

Mr Sithole: No, I wouldn’t know.

Adv Bawa: Is it common that letters containing legal advice are sent with an attorney’s letterhead?

Mr Sithole: No, they will always be sent with the letterhead of the advocate concerned.

Chairperson: There will always be? I didn’t get that part.

Mr Sithole: They will always be sent with the letterhead of the advocate concerned. Did you get that, Chair?

Chairperson: Yes, just repeat it.

Mr Sithole: They will always be sent with the letterhead of the advocate concerned.

Chairperson: Okay, thank you. I got you there.

Adv Bawa: Had you endeavoured to brief him together with other advocates at the bar?

Mr Sithole: No, not that I recall. Unless the SC is referring to the Mangke one?

Adv Bawa: Yes, I'm not sure whether that's separate advice. Let me ask you the question: was he briefed together with the advocate to render whatever was rendered in that instance, Mr Sithole?

Mr Sithole: No… In which instance SC?

Adv Bawa: There are disbursement costs for Mr Ngobeni and Adv Mangke and I'm asking you whether this was for the same work product?

Mr Sithole: Yeah, I would think so, SC. That's why I was asking if SC is referring to the invoice she displayed, relating Advocates Mangke and Ngobeni. That's in respect of the question if he had been briefed by anyone from the bar.

Adv Bawa: I wasn't. I was asking in more general terms apart from these three. But I had forgotten about that until you raised it. So I should probably phrase the question in this way: apart from that instance, had he been briefed with any other advocates?

Mr Sithole: No, not to my knowledge and recollection.

Adv Bawa: In your opinion, Mr Sithole, when decisions are taken by the PP in relation to litigation matters, are they informed by legal advice?

Mr Sithole: In most instances, yes.

Adv Bawa: That was the context in which you provided me with the opinions, correct?

Mr Sithole: Correct.

Adv Bawa: Ultimately, the decision whether to follow the legal advice rendered lies with the PP, correct?

Mr Sithole: Correct.

Adv Bawa: Does she apply her mind to the opinions and would she consult with yourself and possibly others within the PP’s office?

Mr Sithole: Correct.

Adv Bawa: But at the end of the day, it's her decision?

Mr Sithole: Correct.

Adv Bawa: All the opinions the Office was provided were in relation to the subpoena for the information of private individuals. Do you recall that?

Mr Sithole: Yes.

Adv Bawa: The letter sent on 26 April commences with a difference of opinion between the PP and the people in SARS, in relation to the PP’s powers in respect of a subpoena of a private individual's tax information. Would that be correct?

Mr Sithole: From my memory, yes. Unless SC doesn’t mind me checking my printed copies.

Chairperson: Okay, we will flight it.

Adv Bawa: Mr Sithole, you have a hard copy. So I think it's coming up. Do you see that is a letter from SARS for the attention of the Public Protector? A response was received… Sorry, I think we are on the wrong email, because this relates to investigations of maladministration, not the subpoena. Let us go to 2225.

Mr Sithole: It seems to be the correct one, SC.

Adv Bawa: With this heading? It does seem to be correct, Mr Sithole.

Mr Sithole: Yeah.

Adv Bawa: There is a judgment that was handed down in respect of this matter, correct?

Mr Sithole: Which matter, SC?

Adv Bawa: The SARS subpoena of private tax information matter. Do you recall that there was a judgment handed down on 23 March 2020?

Mr Sithole: Yes.

Adv Bawa: The judgment explains the background to the matter.

Mr Sithole: You can check your record 2239, which is what I think you are looking for.

Adv Bawa: Yes, thank you Mr Sithole. Good practice. Let me put this to Mr Sithole: there was a disagreement between SARS and the Public Protector’s Office in respect of the PP subpoena powers, correct?

Mr Sithole: Correct.

Adv Bawa: There is then an arrangement to obtain a legal opinion in relation to this?

Mr Sithole: Correct.

Adv Bawa: Four teams of counsel are proposed and a law firm is to be briefed. The PP then selects from this list who should be briefed to provide the opinion, correct?

Mr Sithole: Correct.

Adv Bawa: The PP disagrees with the opinion received, correct?

Mr Sithole: Correct.

Adv Bawa: That’s the background. Now let’s go to 2239. The opinion comes in at 11:50am and at 12:50pm, the PP says “Muntu prepare a response. I do not accept the opinion and I will get another opinion. Initiate the process to approach another SC who specialises in commercial tax laws.” Do you see that?

Mr Sithole: Yes.

Adv Bawa: You then say “Noted PP, thanks”.

Mr Sithole: Correct.

Adv Bawa: Go to page 2237. Can you just read that? Are you with me, Mr Sithole?

Mr Sithole: I’m here, SC.

Adv Bawa: This is in context of the Gordhan matters, correct?

Mr Sithole: No, this is in the context of the complaint lodged around Mr Zuma’s alleged payments to… I can’t remember his name. The investigators then sought to get Mr Zuma‘s taxpayer information to establish if the allegations were substantiated. So the taxpayer matter is not related to Gordhan. When we say the ‘Gordhan matters’, we mean the matter concerning Mr Ivan Pillay and the SARS Intelligence Unit.

Adv Bawa: What confuses me a little bit is that the first three sentences of the email: “appear to prepare the subpoena to SARS to avail the documents, all the people who were subpoenaed inform them, we will enforce Section 11(3) of the PP Act. We expected them to respond and the documents indicate that SARS will provide”. That is a separate matter, correct?

Mr Sithole: I think so, SC, I am not sure.

Adv Bawa: Is it the same Mr Mpofu? Mr Mpofu said that it is the same. Then it says “appoint a counsel to provide opinion about the SARS letter ‘Refusing to avail documents alleging they are getting opinions since its tax information’.” Do you see that?

Mr Sithole: Yes.

Adv Bawa: In the next line you are told “Legal”, which is you, I assume, “urgently get opinion from Sikhakhane SC, which will contradict Maenetjie’s opinion on availing individual's tax information.” Do you see that?

Mr Sithole: Yes.

Adv Bawa: So I read that you were instructed to get an opinion from Sikhakhane SC, which will contradict Manetjie’s opinion on availing individual's tax information?

Mr Sithole: Yes.

Adv Bawa: There is an instruction which says, “Rodney, can I have all your responses today. Legal and Cos…”, what is ‘Cos’?

Mr Sithole: The Chief of Staff.

Adv Bawa: “Can I have a response to SARS about Maenetjie’s legal opinion, today.” If you go up, you will then see that you say, “The memo of appointing counsel was prepared and routed to CEO for approval”, correct?

Mr Sithole: Correct.

Adv Bawa: If you go to 2235. Do you see the instruction you give the legal attorneys to request Adv Sikhakhane to give the legal opinion, correct?

Mr Sithole: Correct.

Adv Bawa: If we go to number 28, which is the judgment at paragraph seven. The judgment says “Notwithstanding the said explanation, the Public Protector rejected SARS explanation about the TAA, especially section 69(1) thereof operates. Thereupon in a genuine attempt to break the impasse between them, SARS accordingly invited the Public Protector to obtain a court order confirming her understanding of the law. The Public Protector refused to do so and raised financial constraints as the reason.” Was that correct?

Mr Sithole: I'm not sure if that is correct.

Adv Bawa: “She then contended that the Office was financially under-resourced and implied it could not afford approaching this court or even procuring legal advice vindicating her version. In response SARS proposed that the party should join to seek legal advice, and SARS undertook to fund the Bill for such legal opinion. The Public Protector accepted the proposition.” That was the briefing of Adv Maenetjie and Ferreira, correct?

Mr Sithole: Correct.

Adv Bawa: “On 14th November 2018, officials representing the Public Protector on one end and SARS on the other met to finalise a joint brief. It was agreed between the Public Protector and SARS that Cliffe Dekker Hofmeyr attorneys should be appointed jointly in order to instruct counsel. Accordingly, it is not so stated in the papers, I must assume that the issue on which counsel's opinion was sought was also identified at this meeting.” In paragraph 14 it said, “On 24 April 2019, the Public Protector’s responded to the opinion by way of a letter attached to the founding affidavit and marked E and in her letter the Public Protector flatly rejected the independent legal advice of counsel”. Then it stated that “The Public Protector remained of the view that it was entitled to taxpayer information”, correct?

Mr Sithole: Correct.

Adv Bawa: It indicated that you were embarking on the process of obtaining a second legal opinion in the letter, which was that of Adv Sikhakhane, correct?

Mr Sithole: Correct.

Adv Bawa: The court then concluded essentially that all of a sudden she had funds to secure the second senior counsel’s opinion. She was mala fide. She failed to uphold the Constitution. She was prepared to litigate recklessly. She acted improperly in flagrant disregard of the Constitution and the law. In paragraph 15, it said, “incidentally, SARS was not invited to participate in the latter briefing process on which the Public Protector already had embarked.” SARS was not involved in the briefing of Adv Sikhakhane, correct?

Mr Sithole: Correct.

Adv Bawa: Or the sending of instructions to Adv Sikhakhane, correct?

Mr Sithole: Correct.

Adv Bawa: The court then concludes that “the Public Protector admits to these allegations.” It then says that, “The resulting opinion was not shared to SARS nor was SARS even favoured with any update on the Public Protector’s unilateral process to procure advice, diametrically different from the opinion procured jointly by SARS and the Public Protector.” Is it so that the conclusion of Adv Sikhakhane’s advice rendered different to that rendered by Advocates Maenetjie and Ferriera?

Mr Sithole: Yes.

Adv Bawa: The court concludes that the Public Protector litigated in bad faith. She attributed dismal failure to furnish SARS with Adv Sikhakhane SC’s opinion to an oversight emanating from a busy schedule, despite the fact that the said opinion is dated 7 May 2019, they only furnish a copy thereafter to SARS with her answering affidavit. "Assuming she received it immediately after the 7th of May…”, they then count the months in which it should have been given, and they conclude that, "The Public Protector was again simply mala fide in failing timeously to share the second senior counsel's opinion with the Commissioner". In paragraph 60, the court concludes that, “The conduct of the Public Protector is inexcusable. To agree to seeking counsel's opinion on a matter; taking part in identification of counsel's opinion on the matter would be sourced; to preside over the identification of the topic; to reject counsel opinion and to seek Adv Sikhakhane’s opinion without involving SARS is a demonstration of negotiating and acting in bad faith. At the same time, it is indicative of the fact that the Public Protector did not genuinely take part in the process that led to the opinion of Adv Maenetjie SC and Adv Ferreira to obtain objective and erudite opinion. She was not honest. She was opinionated already and also only sought the two counsel’s opinion to support her opinion. When such opinion did not do so she rejected it. This is demonstrated by the fact that she readily accepted the opinion expressed by Adv Sikhakhane, SC. She did not reject the opinion of Adv Maenetjie, SC and Ferreira because it was flawed as she claimed in paragraph 31 of the answering affidavit but did so because it did not resonate with her strongly held view. Nor did she gleefully accept the opinion of Adv Sikhakhane SC, because it was correct. She only accepted it because it resonated with her opinion. The Public Protector also failed to put a copy of the opinion of Adv Maenetjie SC and Adv Ferreira, before Adv Sikhakhane, SC. Again in this respect she acted in bad faith in rejecting the legal advice of Adv Maenetjie, SC and Adv Ferreira. The Public Protector had in paragraph 31 of her answering affidavit furnished reasons why she did so. She stated that ‘on the one hand, I found the Manetjie opinion to be significantly deficient, more perpetually in the glaring failure to take into account the provisions of the Constitution.’ The Public Protector’s letter dated 24 April 2019 concluded by recording the Public Protector’s arbitrary predetermination of the issue already prior to receiving any legal opinion potentially supporting her view. At the same time the letter’s conclusion also reflects the Public Protector’s resolve that SARS’ conduct constituted a breach in violation of Section 181(3) of the Constitution, as well as Section 7(4) of the PPA.” At paragraph 17 it then says “Adv Sikhakhane’s opinion was only disclosed to the applicant in the answering affidavit. This was an example of litigating carelessly. And for the first time in the answering affidavit, the Public Protector was of the view ‘I have found Adv Maenetjie SC’s opinion to be significantly deficient, more perpetually in its glaring failure to take into account the provisions of the Constitution.’ ” The court rejected this and concluded that “the Public Protector is an advocate herself. She clearly had read and understood the opinion of Adv Maenetje SC, and Adv Ferreira. She let a golden opportunity slip through her fingers and she could never retrieve it….In rejecting that opinion, the Public Protector overlooked the dispositive Constitutional Court judgment that was referred to in that opinion of Adv Maenetjie SC.“ They then set out the opinion. Ultimately, the High Court found against the Public Protector, including a personal cost order, correct?

Mr Sithole: Correct.

Adv Bawa: There was leave to appeal to the Constitutional Court in relation to this, correct?

Mr Sithole: Correct.

Adv Bawa: The Constitutional Court refused leave to appeal against the declarator of the High Court but granted leave to appeal and set aside the personal cost order, correct?

Mr Sithole: Correct.

Adv Bawa: Fundamentally, what it came down to was that, in essence, ultimately what Advocates Maenetjie SC and Ferreira… the gist of that was accepted, correct?

Mr Sithole: I am not sure if I got that, SC?

Adv Bawa: Let me rephrase this. The view put by the Public Protector before the High Court was rejected?

Mr Sithole: By the High Court, yes.

Adv Bawa: Let’s rephrase this even better. The leave to appeal was refused?

Mr Sithole: Yes, that’s correct.

Adv Bawa: I’m not finding my words because of a lack of sleep.

Adv Mpofu: I’m also assisting you because I want to go home.

Adv Bawa: Sorry, Chair.

Chairperson: I don’t know what that’s about. Please proceed, Adv Bawa.

Adv Bawa: Can I take you to the SARS Unit matter at 2162, before the Chair cuts me off. Mr Sithole, did you have any insights into the classified IGI report?

Mr Sithole: Not classified.

Adv Bawa: What does that mean? That you had insight into the declassified IGI report?

Mr Sithole: Yes, declassified.

Chairperson: You are going quiet, you don’t want to say that loudly?

Mr Sithole: I am saying that I had access to the declassified one, Chair.

Chairperson: Oh, Okay.

Adv Bawa: That occurred some months after the reports had been issued and during the litigation process, correct?

Mr Sithole: Correct.

Adv Bawa: So that we have no misunderstanding between us, Mr Sithole, did you have insight into the contents of the classified IG report?

Mr Sithole: No.

Adv Bawa: Were you one of the parties, responsible persons responsible for quality assuring the SARS unit report, and I'm sorry, I'm going to call it the SARS unit report versus the pensions report just so that we can get through this quickly.

Mr Sithole: You have it correct, SC.

Adv Bawa: Can you explain to me how you quality assured this report?

Mr Sithole: Well, it was sent to me to check the rationality in the report; which is when you look at the complaint, the findings and the remedial action with the view to determine if there is sync between the three over and above. You also look at the application of the law and whether it has been applied properly in the draft report, or the final one.

Adv Bawa: So you didn't have regard to any of the evidence?

Mr Sithole: No.

Adv Bawa: So you wouldn't be able to say if any aspect of the classified report was in the report because you didn't have access to the classified report, correct?

Mr Sithole: Correct.

Adv Bawa: And you wouldn't be able to say as to whether there had been any independent investigation conducted in this matter?

Mr Sithole: Correct. I only had the report.

Adv Bawa: Now if we look at page 2162. I don’t want to take you through the whole email because we've already ascertained that you didn't have the top secret report. The PP says in the email “I've disclosed that we have a report instead of only informing that Noseweek published the report.” Did you, at any chance, have regard to Noseweek, Mr Sithole?

Mr Sithole: No, not to my recollection, SC.

Adv Bawa: The PP instructs you and says “Legal Services, can you get a legal opinion from SC on this matter”, correct?

Mr Sithole: Correct.

Adv Bawa: The late Mr Nyembe then communicates with Adv Sikhakhane, indicating that he will receive a formal brief from the instructing attorneys, Seanego Attorneys. In the meantime, they took the liberty of forwarding documents to him, correct?

Mr Sithole: Correct.

Adv Bawa: So Adv Sikhakhane is briefed to provide legal advice on the issue, correct?

Mr Sithole: Yes.

Adv Bawa: Can we go to page 300. Mr Nemasisi was still there and he actually sent the brief, correct?

Mr Sithole: Correct.

Adv Bawa: Do you get enough time, Mr Sithole, when you are charged with QA [quality assurance] of reports to actually do it? Sorry, Mr Sithole, we can’t hear you.

Mr Sithole: Chair, I was saying I wouldn't say we have enough time, but also, I wouldn't say we don't have time at all to QA a report.

Adv Bawa: Sorry, Mr Sithole, I don’t understand that. Maybe could you explain that?

Mr Sithole: I would, SC, maybe put it this way with an example. If I'm given a report today, to QA for today, in all the reports, then I will say we don't have enough time. In respect to this email that you have flighted here, you will see that we used to get about 12/13 reports or more and to go through all those reports in a short space of time… If you were to split the reports, it means you have to look at possibly two reports a day. It's not enough time but I can’t come here and say we didn't have time at all. I think it will be different if we have a single report that was given today to QA for tomorrow, then I would definitely say, we didn't have time. If you look, you can see that the former COO sent the email on 8 April, and the reports were expected to be issued on 30 April. But then again, maybe I must add, SC, that list is actually a moving list because the PP would decide not to issue some of them; then there would be new ones which come in for her consideration. So the list of 22 May, may or may not even be the complete list of reports that we had to QA, SC.

Adv Bawa: Okay, so I want to pick it up with the SARS Pillay Report. It is initially contemplated that those reports will be handed down on 30 April 2019, correct?

Mr Sithole: Correct.

Adv Bawa: Now as I understand that, Mr Sithole I could be wrong, there's generally a predetermined date at the end of the month for a media briefing for when reports are issued, correct?

Mr Sithole: I might be wrong, Chair, but that is correct.

Adv Bawa: I said generally. So there may be other reports that can be issued at another time. I know occasionally, for example, the SARS Unit Report got issued earlier in July, it didn't wait for the end of the month. But generally there's a media briefing deadline, and the investigators must work to get the reports finalised for that deadline. Is my understanding correct?

Mr Sithole: Very correct.

Adv Bawa: As you explained, and as we're going to see, the SARS/Pillay report was scheduled for 30 April, and it wasn't handed out, right?

Mr Sithole: Yes, yes.

Adv Bawa: Now can we go to 2178. As I recall in the period after, there was a flurry of letter writing between the legal representatives of Minister Gordhan and the Public Protector’s Office. Would it be fair to say that?

Mr Sithole: Yes, that’s fair.

Adv Bawa: The Public Protector wanted to make sure that those letters were responded to in detail to avoid any allegations of not responding. You see that?

Mr Sithole: Correct.

Adv Bawa: That's the instruction she gives on the 24th.

Mr Sithole: Correct.

Adv Bawa: At 2177, Ms Baloyi asks for all the letters, and she gets it for purposes, “Kindly send me all the correspondence so that I can respond to the PP’s concerns”. We had seen the one on the previous page, showing that Mr Mataboge is instructed to draft the correspondence, correct?

Mr Sithole: Correct.

Adv Bawa: Now on 2175 you will see that the Chief of Staff relays what the PP would want in the contents of one of those letters, correct?

Mr Sithole: Correct.

Adv Bawa: Do you recall the late Chief of Staff expressing the view that the PPSA must institute court action because it doesn't receive sufficient state funding?

Mr Sithole: I don't know what this was about. I’d like to get context. I don't know in respect of what this is because if you check the first line, it talks about a quality assuring memo regarding Mr Segalwe.

Adv Bawa: After the Nkandla line, he puts forward the proposal to you, and he essentially says to you…

Mr Sithole: He says to the PP.

Adv Bawa: He says to the PP, “Where IPID; Hawks and other institutions of similar kind of funding, enable them to meet 75% of their demands and needs, it is surely unfair if the funding extended to PPSA only enables PPSA to meet 57% of its demands and needs. Such a situation should not be tolerated.” He suggests that a court action be instituted alleging that the government is unconstitutional by its failure to sufficiently fund the PPSA. Do you see that?

Mr Sithole: Yes.

Adv Bawa: He then attributes this idea to Adv Ngobeni, as being his spark of brilliance, and he agrees with that. Do you see that?

Mr Sithole: Yes.

Adv Bawa: What transpires in relation thereto after this email is sent?

Mr Sithole: I don’t know, SC. Maybe if you rephrase the question. But I don’t know what happens after this email. I probably would have responded if there was an instruction to do something.

Adv Bawa: Did you receive any instructions pursuant to this email, Mr Sithole?

Mr Sithole: I can’t recall, SC, because if you check the second last line it says “I accordingly propose we consider immediately instituting court action.” It doesn’t seem that it was an instruction that you must institute court proceedings. As I said, the email was directed at the PP. I'm not sure if on this trail of emails the PP responds to this specific email.

Adv Bawa: Let me rephrase the question I was going to ask you better. After this email was sent did you receive any instructions to pursue the course of action of considering such court action at all?

Mr Sithole: No, we've never launched a court process where we ask for money.

Adv Bawa: No, no. Mr Sithole, I know you never lodged such a court action. I'm asking if you received any instructions to consider or in furtherance of considering such actions.

Mr Sithole: No, not in relation to this email, Chair.

Adv Bawa: Can we go back to 2231. We are now back on the report, on Friday 17 May 2019 at 09:20 am, Mr [Rodney] Mataboge is a Chief Investigator, correct?

Mr Sithole: Correct.

Adv Bawa: He provided directly to the PP a draft report, which he says is prepared by “Njabulo”. Who is Njabulo?

Mr Sithole: Njabulo is a senior investigator.

Adv Bawa: That's a draft report. He calls it a “rough draft, madam.” Right?

Mr Sithole: Okay.

Adv Bawa: Who was he referring to as ‘madam’?

Mr Sithole: The email is sent to the PP.

Adv Bawa: She then invites Rodney to the boardroom at 9:30 am and she tells Mvuyana to come with all the records and the report and for you to join them. Do you see that?

Mr Sithole: Yes.

Adv Bawa: I presume that you went to this meeting?

Mr Sithole: I think so.

Adv Bawa: You think so?

Mr Sithole: I can’t remember, SC, but I think so.

Adv Bawa: It is unlikely that you would have disregarded a direct instruction, Mr Sithole. Would you agree?

Mr Sithole: Yes, highly unlikely.

Adv Bawa: You didn't receive an audi letter for not attending a meeting. Did you?

Mr Sithole: No.

Adv Mpofu: Chair?

Adv Bawa: It was a joke, Mr Mpofu.

Adv Mpofu: I know, so is this one. This 30 minutes lasted for 53 minutes.

Adv Bawa: It’s called an ‘Mpofu Minute’. Go down. There's an inquiry by the PP to you, “Muntu, did Rodney discuss the Pillay matter with you?” Do you see that?

Mr Sithole: Yes.

Adv Bawa: Is that the Pillay Pension matter?

Mr Sithole: Correct.

Adv Bawa: You respond on the 20th and you say you were busy with the Vrede judgment – that's the day the Vrede judgment came out and you were distracted, I suspect. You then endeavoured to finalise those PG (Pravin Gordhan) matters the following day, correct?

Mr Sithole: Correct.

Adv Bawa: The PP tells you at 17:30 pm, “Can you go through this report and make sure you QA this and legality. Can I have this tomorrow? See proposed remedial action and I do not see the figures.” Do you see that?

Mr Sithole: Yes.

Adv Bawa: Go back up. Then on 21 May at 8:30 am, she asks you, “can we meet at 11 to discuss the two notices. Rodney send me the latest drafts” What is she referring to Mr Sithole?

Mr Sithole: If it's the notices, it will probably mean the Section 7(9) notices.

Adv Bawa: Alright. Then she says you must be present and then Johan must join you at 12. Then on 2227, which is on 22 May, there is a letter from Minister Gordhan, who wants a meeting. Do you recall this?

Mr Sithole: Yes.

Adv Bawa: And he asked for a meeting to discuss possible remedial action, correct?

Mr Sithole: Correct.

Adv Bawa: This is an email from the late Mr Nyembe, correct?

Mr Sithole: Correct.

Adv Bawa: In that he records his and your view. Let’s go to your view first, he said “The PP can send the letter and say she's available to meet today or tomorrow morning.” Is that your view in response to the letter?

Mr Sithole: Yes, that was my view.

Adv Bawa: Right. Go up, let's see what the Chief of Staff's view was: “The PP cannot afford people an opportunity to meet when they have shown beyond doubt the propensity to waste and delay the investigation. Indeed, they have recourse to the courts who would consider the review case and perhaps come to their rescue. However, the courts have a duty to defend the use of case law and law generally. Nkandla has already held that those investigated don’t like it. They do all sorts of things to avoid the investigation. These are such people.” Who is he referring to?

Mr Sithole: I think he was probably referring to the letter from Mr Gordhan. I don’t know, SC.

Adv Bawa: Then he says “My critique of Muntu’s. Once PP indicates a willingness to meet, the court will then inquire whether the four-hour or half-a-day notice was fair. Given that everyone is in Cape Town, the PP will be found to have been unfair. Yet, if the PP simply refuses and indicates according to her, there's no need to meet and the proposal is intended to delay her, that is more proper. The conclusion of the difference is that let the PP proceed as per her own plan. She determines the investigation. She must also evaluate the underlying request from those investigated and decide according to the facts revealed by the investigation and to previous conduct of the person requesting the meeting, respondent.” Go up and let’s see what the PP decides. The PP then sends you a response, “Respond to Gordhan and say I will not afford an opportunity to address me on the remedial action because Section 7(9) is very clear about the mandate of PP to give implicated parties an opportunity to respond to findings and not remedial actions. Further indicate that the Minister was not cooperating at all, and always using attorneys who use delaying tactics contrary to his oath of office, Section 95 of the Constitution. Can I sign the letter tomorrow, Muntu, to use the affidavit response to SARB on Section 7(9).” So the PP decides not to give them an opportunity to meet, correct?

Mr Sithole: Correct.

Adv Bawa: You then draft a response and Mr Mataboge contributes where possible. Mr Nyembe wants to settle this letter, correct?

Mr Sithole: Correct.

Adv Bawa: You provided her with the attached report that you worked on and you say that “Njabulo is finalising the incorporation of responses.” Is that response to the Section 7(9) notice, Mr Sithole?

Mr Sithole: I think so, SC.

Adv Bawa: Alright, that's at 17:00 pm on 23 May. You then suggest a particular course of action to be incorporated into the report, correct?

Mr Sithole: Which course of action, SC?

Adv Bawa: Sorry, Mr Sithole, ask the question again.

Mr Sithole: No, no, I didn't say anything, SC. It is probably someone else on the platform.

Adv Bawa: You had espoused a view in the earlier email and the PP says, “I'm open to advice if you feel strongly about that. I must sign the report. Rodney, you promised end of business today?” Did you know why she must sign the report, Mr Sithole?

Mr Sithole: No.

Adv Bawa: “I spoke to Njabulo and he will avail the final report in the morning.” Do you see that?

Mr Sithole: Yes.

Adv Bawa: That's the morning of 24 May, correct?

Mr Sithole: Correct.

Adv Bawa: That's the day on which the report is released?

Mr Sithole: Correct.

Adv Bawa: In this instance, Mr Sithole, there was no involvement of either the Executive Manager or the COO in the finalising of this report, correct?

Mr Sithole: I wouldn’t know, SC.

Adv Bawa: You didn't get the report from the COO, you got the report from Rodney Mataboge, for you to quality assure. We just went through those emails.

Mr Sithole: Yes.

Adv Bawa: You see, the COO was not included in any of those emails, correct?

Mr Sithole: In the emails, no.

Adv Bawa: The EM [Executive Manager] was not included in those emails?

Mr Sithole: No.

Adv Bawa: They're not included in the emails that furnish the report to the Public Protector directly either, correct?

Mr Sithole: Correct.

Adv Bawa: Can we go to 2232. This is a list of reports that you were provided at one go that you've got to quality assure, correct?

Mr Sithole: Correct.

Adv Bawa: You get those reports during a short period of time for you to comment on. Would that be fair?

Mr Sithole: I would rather not comment.

Adv Bawa: I won’t say to you that a non-comment means yes. We won’t go that far.

Mr Sithole: I prefer to be comfortable with the timelines, SC. I don't want to say the time frames were short and then, in cross-examination, I'm shown that I got the reports long before I had to QA them.

Adv Bawa: No, that's fair. I don't want you to say something you're not comfortable saying. I just have one further question that I think you can help the Committee with. I want to take you to 2270, which is my last issue. This is a meeting between the Public Protector and the Premier. In relation, I think, to the violation of the Executive Ethics Code and you're included in this email. It's not uncommon for the Public Protector to meet with an implicated party when it's a minister or premier; the PP will generally be in those meetings, correct?

Mr Sithole: Correct.

Adv Bawa: I understand that that was the case even with the predecessor?

Mr Sithole: I think so, yes.

Adv Bawa: I want to see what the staff would provide to the PP, when you go into that meeting. You would give her a memo, the complaints letter, the Section 7(9) notice, the agenda and generally brief her on everything, including questions that are prepared for her to ask at this meeting. Would that usually be the course to follow?

Mr Sithole: Yes, that's ordinarily the course to follow but I'm sure there are other practices which will not be aligned to this. However, I can't say now.

Adv Bawa: You would also always try and ensure that the record is available?

Mr Sithole: Yes, in most meetings, it's the PP who is responsible for recording meetings.

Adv Bawa: There would also be an agenda for the meeting, correct?

Mr Sithole: Correct.

Adv Bawa: And how many such meetings had you attended with the PP?

Mr Sithole: Where Section 7(9) was discussed?

Adv Bawa: No, where you met with implicated parties, for purposes of obtaining further information; and where you get a pack of documents and there are questions that are going to be asked?

Mr Sithole: I think a couple, SC. I cannot give you a number but even when I was an investigator at the Private Office, we did have meetings with implicated parties.

Adv Bawa: Thank you for the indulgence. I have no further questions.

Chairperson: Thank you Adv Bawa. It is 15:08 pm. I had given you the thirty minutes that were smartly taken away from you and you added 38 minutes for yourself, which you called ‘whoever minutes’.

Adv Bawa: It is the minutes that Mr Mpofu took away from me yesterday.

Chairperson: Thank you Adv Bawa. That was a marathon of evidence leading. Now I’d like us to proceed to our next point, mindful that in the morning Adv Mpofu provided two propositions. I am recognising him to begin the cross-examination of Mr Muntu Sithole.

Cross-examination of Mr Thembinkosi Muntu Sithole

Adv Mpofu: Good afternoon Mr Sithole.

Mr Sithole: Afternoon, SC.

Adv Mpofu: The proposition that you rejected was that I was going to park the cross-examination until the end. So if you are still of that inclination, then I can start with some of the, let's call them, non-controversial issues; in the sense that the issues that are covered in the statement. However, the problem with that is that we have to continue with that cross-examination when we come back, and then maybe interpose other witnesses. Maybe I must inquire from Ms Bawa if she intends to call this witness in the next meeting, or put other witnesses in between because that will destabilise my cross-examination.

Adv Bawa: No, so who's intended next is Neels van der Merwe, who's going to deal with his bit of evidence and the bigger issue that I was hoping to finalise with Mr Sithole between now and next Thursday. So I don't think it's going to be a train smash if you want to continue with Mr Sithole. I’m hoping to agree with you, Mr Mpofu, I must get a document that I'm satisfied is accurate in order to do that. I'm not there yet.

Adv Mpofu: Okay. Chair, if you would allow me, let me cover where I can, mindful of the time and day. Mr Sithole, how are you?

Mr Sithole: Fine, how are you, SC?

Chairperson: You can indicate how much time you need today. I am in your hands.

Adv Mpofu: Thank you Chair. I shouldn’t go much further than 16:00 but I will indicate at that stage.

Chairperson: Please go ahead.

Adv Mpofu: Thank you, Chair. Mr Sithole, please forgive us that your cross-examination will be broken into two. It will assist me for the second instalment for us to deal with some of the high level issues so that we drill down to a particular extent when we meet again. Do you understand?

Mr Sithole: Yes I was hoping that would not happen. It is very hot, so coming back is never something one wants to do. Chair, I hope you note that.

Chairperson: I did not hear that. What were you saying? You were hoping for?

Adv Mpofu: He was hoping not to come back because coming back here is hot. I don’t think he’s talking about the temperature.

Chairperson: I thought you were saying it's hot in the room you are in. Let me not disrupt, Adv Mpofu. Please continue.

Adv Mpofu: Mr Sithole, it is not as hot as it looks on television. Let's then do this. I've got various topics which I'm going to canvas with you. I'll start with the ones that are in your statement. Is it correct to say, as I understand it, that you were not involved in either the investigation or the compilation of the report, but you were involved in the litigation?

Mr Sithole: That’s correct, SC.

Adv Mpofu: If I am correct that matter was seemingly investigated at the provincial level during the era of Adv Madonsela, to a particular stage, correct?

Mr Sithole: Correct.

Adv Mpofu: Let’s refer to Adv Mkhwebane’s assumption of her term as Phase 2. There was some activity for a number of months until you were involved towards the end of 2017, correct?

Mr Sithole: Correct.

Adv Mpofu: Okay, so we'll call that gap of the Mkhwebane era in which you were not personally involved, Phase 2, just to situate it here. Then, of course, there was the last period, where you were involved in the compilation of the report until its publication, correct?

Mr Sithole: Correct.

Adv Mpofu: Alright. I think it's important to make this distinction again, because sometimes it has been conflated here. The mere fact that you, Mr Ndou and others who were involved in the compilation of the report, does not necessarily mean that you were involved in the investigation, correct?

Mr Sithole: Correct.

Adv Mpofu: By the time you got involved, the investigation was more or less completed or, in fact, not more or less, it had been completed, correct?

Mr Sithole: I would say so, SC.

Adv Mpofu: Thanks. The bulk of the investigation in that matter had been done in what has been referred to as the Madonsela era, right?

Mr Sithole: I think so, yeah.

Adv Mpofu: Yes. Although there were some issues that were dealt with in what I have referred to as Phase 2. You were involved in Phase 3 which is purely the compilation of the report, correct?

Mr Sithole: Correct.

Adv Mpofu: Okay. Most of the work had been done at the provincial level during the first phase, until at some point towards the end of 2017, where the report was instructed to be handed over to, let’s call it, Mr Ndou’s task team, of which you were a member. Correct?

Mr Sithole: Correct.

Adv Mpofu: That entailed receiving effectively a handover of documents and whatever had been done at provincial level, from the person who had been in charge of that investigation, Adv Erika Cilliers, correct?

Mr Sithole: Correct.

Adv Mpofu: When the matter was moved over to Head Office, according to Mr Ndou, on his own accord, he put together a task team and selected whomever he wanted and sought the approval of the Public Protector, which was granted. Is that your understanding?

Mr Sithole: Yes, that’s my understanding.

Adv Mpofu: We know that there were three complaints given separately, but Mr Ndou confirmed that at least the first two complaints were merged into one and were investigated as one thing. Can you confirm that?

Mr Sithole: I'm not sure if I am following, SC. Can you repeat that?

Adv Mpofu: Okay. Mr Jankielsohn of the DA lodged a complaint in 2013, let's call that the original complaint. He then lodged a revised complaint about 2014, I think, and then another one in 2016. Mr Ndou’s evidence was that by the time your team was involved everything had been basically collated into one complaint because there were overlaps, anyway, between them. What I'm trying to say is that when you got involved, you did not do two separate reports regarding the two separate complaints. It was a merged report, correct?

Mr Sithole: Correct.

Adv Mpofu: I’m confirming with you as a member of the team because he's probably the last member of the team that we are going to talk to. Mr Ndou also denied the suggestion that the investigation was narrowed. Do you agree with Mr Ndou?

Mr Sithole: He denied that?

Adv Mpofu: He denied that the investigation had been narrowed. In other words, lesser than what it should have been. Do you agree with him on that?

Mr Sithole: Yeah, I agree.

Adv Mpofu: Mr Ndou also made a concession that given the evidence that was presented to him, he had the wrong idea about the Public Protector’s attitude towards the use of the Gupta Leaks; and let me maybe explain what that is all about. The impression which had been created by the likes of Mr Kekana and Mr Samuel, was that the Public Protector was dead against any use or reference to the Gupta Leaks. There were two pieces of evidence that were presented, which you may or may not be aware of, suggesting that in actual fact it was Adv Cilliers who was against the use of the Gupta Leaks and the Public Protector had been in favour thereof. That's the background. Now going back to the question, I was saying Mr Ndou considered that evidence and had the wrong idea about the Public Protector’s attitude towards the Gupta Leaks. I’m not accusing you of having had such an idea. Do you have any knowledge about the Public Protector being against the use of the Gupta Leaks?

Mr Sithole: No. To my knowledge and the emails that I've seen, some of which I've shared with the evidence leaders, the PP was actually saying we should look into whether they have any bearing on the investigation.

Adv Mpofu: Thank you. In fairness, it looks like there have been at some stage two views on this but it seems as if the prevailing view, proposed by Adv Cilliers, in the end was that these emails were not germane to the maladministration allegations contained in the complaint, correct?

Mr Sithole: Yes, that was Adv Cilliers view.

Adv Mpofu: Yes. All right. That view became the prevalent view reflected in the report itself. One of the witnesses called this a ‘one-liner' to explain the Gupta Leaks.

Chairperson: Just pause Adv Mpofu. Hon Nemadzinga Tshabalala?

Ms J Tshabalala (ANC): Yes Chairperson. I didn’t raise my hand.

Chairperson: Yeah, you unmuted yourself and now you are disturbing the inquiry.

Ms Tshabalala: My humble apologies, Chair.

Chairperson: Apology accepted. Proceed Adv Mpofu.

Adv Mpofu: I'll come back to whatever I was asking you, Mr Sithole, as it has escaped me now.

Mr Sithole: Maybe I can assist you. You were referring to the one-liner relating to the Gupta Leaks.

Adv Mpofu: Oh, yes. I was saying that your answer to the previous question must be correct because indeed in the final report, there is the so-called one-liner that explains that the Gupta Leaks were not part of the report. I think Mr Nemasisi made the suggestion that the one-liner should explain why that is so. Sorry, I am distracting you now. Are you aware that in the report there was a reference to the non-use of the Gupta Leaks? Correct?

Mr Sithole: Correct.

Adv Mpofu: Both Mr Ndou and Adv Raedani, who was a member of your team, agreed that the Section 7(9) notice is intended to give its recipient, who is the implicated party, their right to audi alteram partem and effectively to give reasons why they should no longer be implicated. Is that your understanding of the section?

Mr Sithole: I'm not sure if I understood it in the context that you mentioned it, SC. My understanding of Section 7(9) is that the PP gave implicated parties an opportunity to respond to the findings.

Adv Mpofu: Yes, that’s fine. That’s the same thing. I'm saying the opportunity to respond or to make representations or whatever you call it. It's affording them the right to audi alteram partem, correct?

Mr Sithole: Correct.

Adv Mpofu: There was this controversy which was prevalent among those who were dealing with this section, including myself, if I may add, about whether the section requires the Public Protector to grant you your audi in respect of the findings – which is what the section actually says – or whether it is in respect of the findings and the remedial action. There was that debate among the legal people, correct?

Mr Sithole: Correct.

Adv Mpofu: One school of thought which was contained in an internal opinion that the Public Protector sought from Mr Nemasisi, said that Section 7(9) should be confined only to findings. Were you aware of that?

Mr Sithole: Yes.

Adv Mpofu: Eventually after the CR17 case – which went up to the Constitutional Court – it was found in that case and in the Gordhan cases that actually Section 7(9) should be extended even to remedial action. Correct?

Mr Sithole: Correct.

Adv Mpofu: Now the law is kind of settled on that question. I'm asking you these questions, because there's a view that some of the issues that went to court were actually simple issues and didn't yield any returns. Questions like this one, which is quite an intricate question, have been resolved through this litigation. Would you agree with this, as you have been involved in the evolution of this litigation?

Mr Sithole: That's correct, SC. It’s resolved for one school of thought. I’m on the other side of the school of thought.

Adv Mpofu: You are a member of the other school of thought? Well, so am I but sorry, we lost that one. Be that as it may, the other similarly intricate question relates to the issue of Section 69 of the Constitution. That's also been a bone of contention, correct?

Mr Sithole: Correct.

Adv Mpofu: Oh, sorry, I said of the Constitution. I meant the Public Protector Act. It’s the Chair’s fault. That section, as we know, which was touched on by Ms Mokgaladi yesterday, deals with the all important issue of jurisdiction, which is a gateway provision into the Act, correct?

Mr Sithole: Correct.

Adv Mpofu: As someone who has been active probably, well, from my experience, most active in this high-end litigation representing the Public Protector's Office, I can test this with you as well. Again, one school of thought said that Section 69 is a limitation clause, similar to the Prescription Act, if you bring a civil action which is older than three years, then the doors of the court are generally closed to you. So there's that school of thought, correct?

Mr Sithole: Correct.

Adv Mpofu: Then there's the other school of thought, which says that actually Section 69 is a permissive kind of clause. In other words, it opens the door for the Public Protector to consider older complaints, provided she is satisfied that special circumstances exist, and she will be able to carry out the investigation. In other words, even in 25 years time, if the Public Protector is convinced that the evidence is still there, and there are special circumstances, then she can investigate it in line with her very wide powers, correct?

Mr Sithole: Correct.

Adv Mpofu: Again, one can say the courts have kind of settled that question in favour of the more, unfortunately, restrictive approach which basically says, ‘ If it is more than two years, it is out” and you then have to justify why you're doing it. That was not the approach taken by Adv Madonsela during her time, correct?

Mr Sithole: Correct.

Adv Mpofu: Alright, thanks. We will canvas those issues more when we are dealing with the Public Protector’s own evidence, but I just wanted to situate it from the point of view of the legal department of the Public Protector. I know you were not necessarily involved in the HR side of things and as Adv Bawa explained, that is not the main reason you have been called here but I just want to test this proposition with you – it is something that I'm going to argue at the end. You are aware of the so-called audi letters that get issued to employees to give them an opportunity to explain themselves if there is a, let's call it, suspicion that they may have transgressed a rule. At least you must be aware of that as an employee yourself, correct?

Mr Sithole: Well, I've not received one but I am aware.

Adv Mpofu: You haven’t received one, yes, but if you keep on answering like that, and we can't hear you properly, you might get an audi letter from the Chairperson. Yes, but you are aware on a serious note of the issuance of audi letters as a precursor to disciplinary action, correct?

Mr Sithole: Correct.

Adv Mpofu: Now one of the, I'm trying to be generous here, absurdities about some of what is happening, or what is before this inquiry, is the following and I'd like to hear your comment on this. Let me preface it by saying this: Mr Ndou agreed with me that audi is audi; whether it's an audi letter to an employee or an audi letter in terms of a Section 7(9) notice to a so-called implicated party, it's the same thing – which is that you are affording that person an opportunity to explain themselves and if they do so successfully, that should be the end of it. I'm sure you agree with that as a broad proposition, correct?

Mr Sithole: Yes, as a broad proposition.

Adv Mpofu: Yes. Not necessarily that the two things are literally the same, but they are based on the same underlying legal principle, correct?

Mr Sithole: Correct.

Adv Mpofu: Now here in this Committee, well maybe let me not blame the Committee… some people have this absurd view that I'm going to propose to you, which is that you have the Public Protector on the one hand, who must be impeached because she denied certain people audi in the form of a Section 7(9) notice such as the likes of Mr van Loggerenberg Mr Pillay and Mr Ramaphosa, depending on which case was dealt with. So the three main cases that dealt with the Section 7(9) notice were CR17/Bosasa, Mr Pillay and the so-called rogue unit, correct?

Mr Sithole: Correct.

Adv Mpofu: So in respect of those cases, it is suggested that the denial of audi is a ground for impeachment. But in the same breath, those people argue that the granting of audi to employees is also a ground for impeachment. So I don't know what is expected from the Public Protector. If you accept that those two things are all based on the same underlying principle, is it logical – well you don’t have to use my words, which are that it is just pure madness – that on the one hand, you must be impeached for granting audi but on the other hand, you must be impeached for refusing audi?

Mr Sithole: Chair, that question is putting me in a tight spot but let me respond this way. I want to respond to the question on audi in respect of the investigations, particularly the remedial action. I would say the fact that the matter went all the way to the Constitutional Court and if you read the judgment, there's about close to 10 pages where the judge talks about audi in Section 7(9). If you take a few steps back to the High Court full bench judgment by Judge President Mlambo, he actually says, the counting of our own remedial action is done on a case-by-case basis. It is then the Constitutional Court that puts it at the narrow interpretation. But for us, it has always been that the Public Protector is a creature of statute. If the statute says you can only sell five fishes, you can sell six for three. We had said that was our view. I'm speaking from the view that we've had it during the entire litigation process in respect of 7(9), that you will not find the remedial action under a Section 7(9)(a) notice. Other than that, our interpretation of that section is that it only gives PP an authority to give out audi during the course of an investigation. We were of the view that there is no way you can have remedial action during the course of the investigation, because we were still investigating. Remedial action can only be provided once you have concluded your investigation. To summarise that and incorporate into your response, I will say that it may be problematic, with due respect, Chair, for the Committee to impeach her on the issues related to Section 7(9). These are issues of interpretation, which actually, the only authority for interpretation is the courts and the courts have actually done their part on that. The law now says that the PP must give people an audi even for remedial action. I think it's what we are doing now as an institution.

Adv Mpofu: Thank you, Mr Sithole. Two questions arise from that and I think the second one you've just answered now. This situation was clarified to your satisfaction and to that of the Public Protector. Is it the case that in any event, that you now comply with the legal position as explained by the Constitutional Court?

Mr Sithole: Correct.

Adv Mpofu: For the first part, I think we have to make this clear, or at least, I have to make it clear that we don't expect the Committee… this Committee, to even have to adopt any view of the two as correct or incorrect. The only issue that's relevant for this Committee is just to understand that these are complex issues, and that PPSA implemented them in good faith. From an interpretational point of view, if you are wrong, you're wrong. If you're right, you're right. But you're not doing them for some malicious purpose. Is that the case?

Mr Sithole: Correct.

Adv Mpofu: To your knowledge, the Public Protector would have been following internal advice from people like yourself – and you've already provided your view – and sometimes external advice from people like myself, without her own malicious preferences, correct?

Mr Sithole: Yes but the PP also expresses a view on the interpretation of statute and there's nothing wrong with her doing that.

Adv Mpofu: Yes of course. As a lawyer herself, obviously she would have a view one way or the other, but mostly she would seek internal advice from you, Mr Nemasisi and others; while obtaining external advice from counsel or any other person, correct?

Mr Sithole: Correct.

Adv Mpofu: There's another intriguing thing about the Vrede litigation and this now has to do with the Democratic Alliance, which is the complainant effectively, and has brought us here. It's another paradox, similar absurdity, like the one I've just explained. Can you confirm that PPSA, in the Vrede matter, had filed a notice to allow for the court to decide if there was something wrong? Quite frankly, this was not her baby and she found it there. It had been there for three years. Obviously she had to do whatever she had to do but if there had been any fundamental flaws in the first three years, there's nothing she could do to turn back the clock; that will be her evidence. The question I'm putting to you is that when the DA took the matter to court, she filed a notice to abide by it so that she did not waste costs. If there was something wrong, the court would pick it up and subsequently correct it. Thereafter, she would move to resolving the problems of the complainant. Can you confirm that?

Mr Sithole: Yes, that’s correct.

Adv Mpofu: The DA then turned around and said, “No. It would be remarkably alarming if she does that. It's a sign of bad faith and incompetence.” In the court, however, they adjusted their relief to say now she should be mounted with personal costs because they felt she had wasted money on this. As a result of that, you had to seek counsel’s advice, correct?

Mr Sithole: Yes, that's correct.

Adv Mpofu: And incur more costs, in obtaining that advice? Correct?

Mr Sithole: Correct.

Adv Mpofu: Senior counsel’s advice was that you would be in jeopardy of these personal punitive cost orders unless you entered the fray, correct?

Mr Sithole: Correct.

Adv Mpofu: Therefore, you entered the fray and gave explanations where they were needed, and then gave the background to the court, and the decision was made against the Public Protector, correct?

Mr Sithole: Correct.

Adv Mpofu: Then guess who, the DA now comes here to Parliament to say the Public Protector must be impeached because she was involved in so-called reckless litigation for, among other things, the Vrede matter which was induced by their own conduct, correct?

Mr Sithole: I’m not sure if I should make a comment, SC.

Adv Mpofu: Sorry, maybe I'm putting it too strongly. You might not want to enter that space. Let's take two points at a time. First the point at which the Public Protector has decided to abide and not get involved in any further wastage of money. Lastly, the point at which the judgment is given for those costs, I'm saying, was the direct result of the legal opinion which you had received because of the applicant’s change of attitude, correct?

Mr Sithole: Correct.

Adv Mpofu: Thank you. Another mind-twister relating to the inquiry we are sitting in. The last point that you touched on is also that the Democratic Alliance called the Public Protector a spy from day one of her appointment, correct?

Mr Sithole: Yes, in terms of that litigation involving the PP and Adv Breytenbach.

Adv Mpofu: Yes and there was a campaign at that stage, for her not to be confirmed by Parliament, or appointed at all, correct?

Mr Sithole: Yes, I think if I remember the time line correctly.

Adv Mpofu: Yes. From those papers of that court case? So in other words, before day one… before she was in office, there was already a campaign for her removal or non-installation. This inquiry, six years down the line, is simply a confirmation of that prophecy. So even if she hadn’t done anything, she should be removed purely because she's a so-called spy. But you don’t need to comment on that one. What you do know is that litigation had been ongoing until the new acting Public Protector recently intervened, as she has in many of the other cases we've dealt with this week. Correct?

Mr Sithole: Yes. As I stated during the evidence-leading, I need to confirm with Neels if the withdrawal was indeed effected.

Adv Mpofu: That’s fine, Mr Sithole. I can understand why you are being so careful.

Chairperson: Did you miss that part?

Mr B Herron (GOOD): I really did miss it. I couldn’t hear the answer, but I also want to make sure that I understood the question. Was the question that the defamation case around the spy allegations has been withdrawn by the acting Public Protector? Is that it, as I couldn't hear the answer?

Adv Mpofu: Yes, indeed that was my question. The answer provided by Mr Sithole was that he thinks so, but he wants to check with Neels.

Chairperson: I want him to say that on record. Mr Thembinkosi Sithole, could you repeat that?

Mr Sithole: Yes, Chair, I was saying, I will need to confirm with Neels if that application was indeed withdrawn. I don't want to state it as a fact here.

Chairperson: Okay. Adv Mpofu?

Adv Mpofu: Through you Chair, Hon Herron, the evidence of the Public Protector will be that that was communicated to her by the acting Public Protector. But Mr Sithole is also correct. I think what he's saying is that he knows about it, but he doesn't know whether the withdrawal has actually been effected. Then I was just saying to him, ‘yes, it's a good idea not to commit yourself to something like that. You can check it, so when you come back next time, you will tell us’, correct?

Mr Sithole: Yes.

Adv Mpofu: On a lighter note, I can understand why you’ve been so careful, even about something as small as that because some of your colleagues who are supposed to be officers of the court came here to surrender their practising certificates. This inquiry was supposed to be the end of Adv Mkhwebane’s career, but I think it's architects will get bonuses.

Chairperson: Not according to this Committee. Thank you.

Adv Mpofu: No, no, according to those who initiated it, but I'm just going to say they will probably get a bonus and prevent other black professionals from being able to work. I'm not going to touch on the FSB matter because we will do that when we come back. On a serious note, Mr Sithole, we will talk about FSB. Actually, let’s start there and I will ask you about Rule 53, as it features in the Vrede, FSB and other reports. Am I correct, and this was confirmed by Ms Mokgaladi yesterday, that generally speaking, the Public Protector does not get involved in the compilation of a Rule 53 record. I mean, a person at her level of executive authority would not be involved with that, correct?

Mr Sithole: Correct.

Adv Mpofu: That matter is, as is usually the case in every other department, dealt with by yourselves, as the legal department and the external attorneys, correct?

Mr Sithole: Correct.

Adv Mpofu: To the extent that you might send her notification that the report has been done, which is really what the Rule 53 is, you're not expecting her to actually participate in the compilation of the index. Obviously, if she picks up something, she will pick it up. It can never be placed on her if the Record does not contain all the information, correct?

Mr Sithole: Yes, that was the view I expressed earlier to the Evidence Leader.

Adv Mpofu: Yes and you went further. To be fair to you, you actually accepted responsibility and blamed yourself and the others, for the errors in the Rule 53 record, in the sense that if there were any shortages, then it means you must have overlooked something. However, your actions were not malicious, right?

Mr Sithole: No, it was not.

Adv Mpofu: Thank you. That is the kind of issue the Public Protector is supposed to be impeached for. Again the Rule 53 record was compiled in the Pillay matter and Ms Mokgaladi testified about it yesterday and she accepted, I think, that even at her level she wouldn't be intricately involved with a Rule 53 compilation. Mr Sithole, Ms Mokgaladi also said that she had worked on the Section 7(9) notice in the Pillay matter and she was satisfied that it had been done correctly. Was that your experience as well?

Mr Sithole: I can’t recall but most likely, yes.

Adv Mpofu: Once again the failure alleged in dealing with Mr Pillay’s Section 7(9) because the court found that it had not been dealt with adequately and blamed the Public Protector directly. Is that fair? Particularly if the EM that was involved in this is prepared at least to say that she was satisfied with the quality of the Section 7(9)

Mr Sithole: I'll be very careful to answer, Chair, as I don't want to pin myself against my colleagues because I'm still employed here. So I don't want to make a view on what someone else said.

Adv Mpofu: I understand that, Mr Sithole. I am sure it is not quite safe there. The proposition I'm putting forth would be in agreement with Ms Mokgaladi, not against her. I'm saying that if she herself confirms that she worked on the Section 7(9) and she was happy with it, would it then be fair for someone else, not Ms Mokgaladi, to blame any alleged deficiencies of that Section 7(9) on the Public Protector?

Mr Sithole: It would not be fair, Chair. This will tie to my earlier statement that we should take the blame for the deficiencies in the Rule 53 record.

Adv Mpofu: We will drill down on this next week, but I do understand the position to have been something like this: one, the Public Protector issued a directive for a moratorium on the opposition of court cases except those that had already had set-downs; that was the general rule, correct?

Mr Sithole: Correct.

Adv Mpofu: A list of those matters was then issued to say these are the matters that are in the pipeline but do not have set down dates and thus must be withdrawn, generally speaking. Correct?

Mr Sithole: Correct.

Adv Mpofu: As Adv Bawa pointed out, for every rule, there might be exceptions. So there was one, what we lawyers call an escape clause. In other words, if a particular matter did not have a set down and was of such importance, to the discretion of the Public Protector, then that particular matter could be continued with, correct?

Mr Sithole: Yes, that's correct. I recall Adv Bawa SC flighted an email, which communicated the decision to now oppose the earlier decision that we should withdraw a position and I actually forgot to mention… but I'm sure I can mention it as you go on.

Adv Mpofu: Yes, you can, Adv Bawa won’t object to that. In fact, there's, I think, a live example of that. Let’s go to 4044, it’s headed “Withdrawal of all judicial review applications”. It says “the purpose of this memo is to advise the Public Protector about the risk attached to the instruction to withdraw opposition in all pending judicial review matters wherein the date for the hearing has not yet has not been allocated”. It's dated 24 May 2018. In summary, it was sent to the Public Protector and the Chief Executive Officer, from Mr Nemasisi, advising about the risks associated with the PP’s instruction regarding the withdrawal of all cases. Do you remember that?

Mr Sithole: Yes.

Adv Mpofu: Mr Nemasisi was expressing the view here that firstly, “The Public Protector” referring to Parliament I suppose, “has been unsuccessful in securing additional funding and as such it has become difficult for the Office to be in financial position to defend or oppose all judicial matters.” He then goes on about the importance of the Office of the Public Protector and the fact that the EFF Nkandla case expressed the view that the Office of the Public Protector is there “to help uproot prejudice, impropriety, abuse of power and corruption in state affairs, all spheres of government and state controlled institutions. The Public Protector is a critical and indeed indispensable factor in the facilitation of good governance, and keeping our constitutional democracy strong and vibrant.” And he says, importantly, at 2.5 “without defending and protecting its report, the PPSA will not be able to facilitate good governance and keep the constitutional democracy strong and vibrant and uproot prejudice. As a result of the above, without an enforcement of its remedial action, the dignity and effectiveness of the Office of the Public Protector will diminish.” So Mr Nemasisi was really saying what is the point of even having the Office of the Public Protector, if the people who are being investigated, the allegedly corrupt people, will simply review those knowing that the Public Protector will not defend them, correct?

Mr Sithole: Correct.

Adv Mpofu: This is another absurdity. The country would be spending R250 million on a wage bill for an institution which cannot defend its work because it's saving money. I mean, what is that? That would then mean that the best thing really to do is close down the Office of the Public Protector. Would you agree?

Mr Sithole: I would.

Adv Mpofu: Thanks. Anyway, be that as it may, section 4 then lists, I think, 14 matters that were identified for withdrawal under this instruction of the Public Protector. The Public Protector decided to continue on three matters that are listed there. I support your statement that there was in any event, a discussion for the Public Protector…if you look at 4.1, Point 14, that's the so-called Mandela funeral corruption matter – or at least one version of it. If you then go to 4055, you’ll see a letter from Mr Nemasisi to the Public Protector, yourself, the late Mr Nyembe and Mr Mahlangu. There you see a list of three matters which had been identified for continuation. This has now been increased to four because the Public Protector felt that the Mandela funeral corruption matter should be added to the matters that must continue even though they might not have a set down date. Do you remember that?

Mr Sithole: Yes.

Adv Mpofu: Effectively without getting into the nitty gritty of this, the idea was that generally matters that have not been sat down should be withdrawn except if the Public Protector, in her discretion, felt that a particular matter should not follow that general rule, correct?

Mr Sithole: Correct.

Adv Mpofu: All this is not consistent with Mr Samuel’s theories that the litigation was being carried out recklessly. At least in your experience, these measures would not fit that description, correct?

Mr Sithole: I will say yes but maybe I must qualify that by saying we actually won three of those four matters. The one which we lost was HSE.

Adv Mpofu: Can you go back to 4055? I see what you're saying. You're saying the decision to continue with some of these matters was vindicated in the sense that the Public Protector won the cases, correct?

Mr Sithole: Except for number three [Hugh Sidney Eiser].

Adv Mpofu: The Public Protector was successful with numbers one, two and number four?

Mr Sithole: Yes. I would say partly successful for number 2,

Adv Mpofu: Partly successful? One and three fully successful, four not successful?

Mr Sithole: One, fully successful. Four, fully successful. Two partly successful and three we were unsuccessful.

Adv Mpofu: Hardly a model of reckless litigation, if you ask me – but don't. Okay. Chair. I think that it would be convenient to stop here, as I was not prepared for some of the matters raised earlier in the morning. Thank you, Mr Sithole. We'll meet you next week sometime.

Mr Sithole: Thank you.

Chairperson: Thank you, Adv Mpofu. Yes Adv Bawa?

Adv Bawa: There’s an issue… Mr Sithole is now under cross-examination and I do need to liaise with him simply on the question of the schedules.

Adv Mpofu: Chair, for those who don’t understand what is going on. Ordinarily because Mr Sithole is under cross-examination, Adv Bawa would not be allowed to consult with him but we will allow for it in this instance, due to the peculiarity of the two-stage hearing. Thank you Chair.

Chairperson ruling on complaint

Chairperson: At this stage I’d like to tell Hon Members that we are pausing the cross-examination, and we will not have discussions until the second part of the cross-examination. I hope you all understand that. Mr Thembinkosi Sithole, you are not done yet; you are only halfway there. We will resume with you next week in that regard, and that resumption will be a continuation of the cross-examination by Adv Mpofu. Before I excuse you all, before I adjourn the meeting, I’d like to make a few remarks. Adv Mpofu placed on record, this morning, what he termed as a complaint, which seems to have possibilities of permutations on their part. I indicated that their complaint is well-received and that I would make a ruling, which I will do now. If I understood correctly, Adv Mpofu and the PP are of the view that the filing of a further affidavit by the state attorney acting on behalf of the Speaker of the National Assembly, and myself, in our capacities as the first and second respondents in the Western Cape High Court, has given rise to an allegation of bias on my part. Adv Mpofu is well aware that it was the Public Protector who launched the litigation to stop this Section 194 Committee from proceeding. I was cited by the PP team, as the second respondent. It would not be fair, or logical, in my view, to raise issues of bias when in fact, I was drawn into the proceedings by the PP herself. Nevertheless, let me deal with it. The judgment the Constitutional Court delivered as referred by Adv Mpofu on 24 August is in the public domain. The apex court dismissed the rescission application of the PP and that is an undisputed fact. It therefore cannot be said that it was the filing of the affidavit that brought the matter to the attention of the High Court bench. It is expected that the lower court will have regard to the rulings of higher courts. Whether the Constitutional Court is wrong or right, is not for me to determine. I cannot be held responsible for the cause, rationale or the decision arrived at as much as you may differ with it. For Parliament, what is key from that judgment is that it rendered the Public Protector’s argument in the High Court that the pending rescission prevented this Committee from continuing with its important work, due to the sub judice rule, moot. That is what we sought to get the bench to. That is important as it was one of the grounds on which the PP relied to challenge this process. The filing of the affidavit dealt with a factual legal matter. Nothing in those papers or in the litigation process to date has dealt with the merits of the motion or the question of whether the PP must be removed from office or not. I've been at pains throughout this process to ensure that this process is fair, as required by our rules. I’ve reiterated numerous times which I do again now that there is no predetermined outcome in this matter. We're conducting it in a fact-finding exercise manner after which this Committee that you're part of, Members, and that I'm chairing, will make recommendations to the National Assembly on the question of removal, having due regard to whether on the facts before us the PP has misconducted herself or is incompetent as alleged in the motion. I therefore do not believe the findings of the affidavit or my continued involvement in the litigation processes which are occasioned by the PP herself constitute any bias. Thank you. That's where I want to leave the matter. Thank you very much. Before I close, I’m sure you certainly want to say thank you too, Adv Mpofu?

Adv Mpofu: Don’t put words in my mouth. You have made your ruling and I’m not going to second-guess it. I want to say the following, just in case I was misunderstood in the morning. Let me repeat, we are not questioning your right to invoke the rules of court. That would be absurd. To make it very clear, we're actually not even going to oppose the Rule 6(5)(e) notice. We will file an explanatory affidavit, which covers some of the issues that I dealt with this morning, so I am not misunderstood on that. The second quick point is that the sub judice point, as you know, in the court, was based on two legs; the pending Constitutional Court case and pending part B case. So the only thing I was saying is that even if you're right – let's assume you're right – that that part of the Constitutional Court case has therefore become moot; the sub judice point itself has not become moot because Part B is still pending. But that's again, something which I just wanted to explain… Which is that it was a two-legged attack. So that's why I was saying it makes no difference. Really, if anything is moot, it's your intervention, because it makes no difference. So if you rely on two grounds, and one of them falls, you still have the other one. I think that's easy to understand. The last point is about the predetermined outcome. When we raise bias, I mean, we don't expect you to say you're biased. So I think you understand that we're raising a perception on our part and we can’t expect you to be a judge of that, at least at this stage. If we want to assert it elsewhere, we will do so; if we want to make an application before you, we will do so as well. We have not done so. What we were referring to, regarding the perception of bias, was that our experience here in this Committee was predetermined and unshakable. We've seen things here; we've seen people trying to resuscitate dead witnesses, like the biblical Lazarus. You know, those kinds of things, which are in our experience… But again, those will be ventilated if and when the necessity comes to deal with the work of the Committee. We can’t expect you to adjudicate on yourself or the Members on themselves in that respect. That's all Chair. We are placing the matter on the record as a matter of concern. If and when we take it further, we will do so.

Closing remarks

Chairperson: Thank you, Adv Mpofu. Well, we know it's based on two parts. Our view was that it was important for the court to consider what we have filled. Before I close, I see a hand?

Dr M Gondwe (DA): Yes, Chair, it's a housekeeping matter regarding when we're having our next meeting?

Chairperson: I’m coming there. Why are you in a hurry?

Dr Gondwe: Sorry Chair.

Chairperson: Well, we've had a very full week. It has been hectic every day. I want to thank everyone for their participation. We started with the Public Protector here on Monday, and were joined by the Rustenburg crew later in the week. It has been a very comprehensive week. We will take a break for a few days next week, and meet again on Thursday 1 September, with Mr Sithole. There are certain issues which have not allowed us to have meetings on Monday, Tuesday and Wednesday. Before I continue, I see your hand, Hon Herron?

Mr Herron: I want to ask when the programme changed because the programme we have has us resuming on 8 September?

Chairperson: Come again?

Mr Herron: The programme that we have, that was discussed at our last meeting and was distributed thereafter.

Chairperson: I'm giving you a heads up on something that is coming to you.

Mr Herron: Chair, I must say it's difficult to be told on Friday that this thing is resuming on Thursday 1 September, when the programme says it's resuming on 8 September. It is difficult to plan things for Thursday and Friday next week.

Chairperson: We will explain that, Hon Herron, because nobody planned that we would not finish with Mr Muntu today. I don't think you can blame us for that. This is a work in progress. The Committee is also considering how to conclude this entire process. I don’t want to discuss that now, but I do understand your point. With that, colleagues, I don’t want to keep you any longer. Have a good weekend, until next week.

Adv Mpofu: Chair, I am so sorry. I wanted to say something.

Chairperson: Not on this issue, please, as it is a work in progress.

Adv Mpofu: I understand, but it might assist other people, Chair. I was just going to say that the two teams would speak either today or tomorrow to decide when we are next sitting. This will ensure that Members are informed well ahead of time.

Chairperson: It won’t be communicated on Thursday, hence I gave everyone a heads up. The meeting is adjourned.

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