PP Inquiry day 28: Muntu Sithole & Nthoriseng Motsitsi

Committee on Section 194 Enquiry

09 September 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

Before hearing from new witness, Nthoriseng Motsitsi, current Executive Manager of Complaints and Stakeholder Manager at Public Protector South Africa, the Committee continued questioning the previous day's witness, Muntu Sithole, who is the PPSA Manager of Legal Services.

Questions posed to Mr Sithole included the quantum for litigation costs by the Office of the Public Protector and about services provided by Mr Paul Ngobeni.

The evidence leader concluded with questions of clarification about Mr Sithole's responses given under cross-examination and to Committee member questions. Clarity was requested about Mr Sithole's role in signing off invoices from legal firms; equitable distribution of work amongst attorney firms; if Seanego Attorneys got R49 million of the R149 million of PPSA legal work; non-compliance of some invoices with the PPSA tariff rates and Public Finance Management Act; and the contracting of Mr Ngobeni, his credentials and responsibilities.

The evidence leader took Nthoriseng Motsitsi through her affidavit. It covered the positions she had held at the PPSA between 1999 and 2007 and on rejoining in 2017, performance targets, about the period she held the temporary positions of Acting Chief Executive Officer and Chief Operating Officer, and PPSA financial constraints. The affidavit covered a number of key stressors relating to her position, including long working hours, tight deadlines and an environment of fear. Clarity was requested about the number of disciplinary processes and how audi alteram partem letters were used inappropriately in the Office.

The Public Protector's legal team cross-examined Ms Motsitsi. Questions were asked about the reason she returned to the employ of the PPSA in 2017; conditions of her employment at the Department of Home Affairs and comparative income; how audi letters were used at the Department of Home Affairs compared to PPSA; the audi letter put to Ms Mogaladi and the associated disciplinary action; disciplinary process in the PPSA; her statement that Mr Ndou had displayed ‘malicious compliance’ and the fear this may have instilled in him compared to the issuing of an audi letter.

Meeting report

The Chairperson stated that the Committee would be continuing to hear from the previous day's witness, Mr Muntu Sithole, Manager of Legal Services in the Office of the Public Protector, as Committee member Mr Nqola still had questions to ask of him.

Committee Members' Questions to Mr Muntu Sithole (continued)
Mr Nqola: How many law firms do you have in your panel of attorneys?

Mr Sithole: In the previous panel, initially there were 26; it reduced to 18 or 19 firms.

Mr Nqola: Can you confirm that there is an equitable distribution of work amongst the law firms that formulate that panel?

Mr Sithole: I can confirm.

Mr Nqola: Can you confirm that there is no law firm that has been given work outside the panel?

Mr Sithole: I can confirm that during my time I had no knowledge of a law firm that was appointed that was not on our panel.

Mr Nqola: Let's go to the decision of not opposing the review applications for the reports of the Public Protector. It was said that at a particular time, the Public Protector took a decision that it would only file a notice to abide by the decision of the court. Was this done on the basis of cost effectiveness?

Mr Sithole: Correct, cost effectiveness was the main reason.

Mr Nqola: You said in your affidavit that the Public Protector instructed Adv Cilliers to perhaps look at the relevance of the Gupta Leaks in respect of the Vrede Dairy Project. Adv Cilliers came back to state that there was actually no relevance. The Gupta Leaks revealed that there was about R1 million siphoned from the project to an offshore account of the Gupta brothers. Do you agree that there was no relevance of the Gupta Leaks to the investigation into the Vrede Dairy Project?

Mr Sithole: I do not know if Mr Nqola remembers the testimony. When I came into the Office in May 2017, the Vrede Dairy Project investigation was already at its end. He was part of the task team. In fact when it was reported by Adv Cilliers that there was no link between the Gupta Leaks and the complaint, I was fairly new at the time. The Gupta Leaks and if it formed part of the investigation or had any bearing, was in the email exchanges to say ‘can we just ensure that there is nothing in the Gupta Leaks.’ Eventually there was no finding or investigation in respect of that.

Mr Nqola: In your affidavit in paragraph 14, you depose that the Public Protector raised unhappiness about the fact that you did not include some of the issues raised by Mr Nemasisi, in respect of the Vrede Dairy Project. What were the issues that made the Public Protector unhappy?

Mr Sithole: I really cannot remember the details. Hopefully, Mr Nemasisi can speak on those to the Committee. Those issues could not have been included as they did not form part of the section 7(9) notice.

Mr Nqola: At what stage did you join the investigation of the Vrede Dairy Project.

Mr Sithole: As I said, it was already at the end. The Task Team was formed to finalise the…

Mr Nqola interrupted him.

Mr Nqola: Sorry, when you say ‘at the end,’ you mean toward the actual final drafting of the report?

Mr Sithole: Correct.

Mr Nqola: Do you recall any instruction from the Public Protector saying she wished that no politician must be affected by adverse findings in the final stages of the Vrede Dairy Project Report.

Mr Sithole: No.

Mr Nqola: The last question would be around legal costs. Parliament has requested a report from the Public Protector’s Office on legal costs in respect of the impeachment processes and the matters that were taken on review. Are you aware of that?

Mr Sithole: Yes, as in now?

Mr Nqola: Yes, recently, about four months or so.

Mr Sithole: Yes, I think I would be aware of that if it was four months ago.

Mr Nqola: Are you aware that both matters taken on review and the cost on this impeachment process have cost more than R60 million in public funds?

Mr Sithole: I am aware of that.

Mr Nqola: What is your view in terms of the quantum of these two aspects?

Mr Sithole: My view is that the quantum is high, not because we are overcharged. The quantum is high because litigation is generally expensive. Whether it could have been avoided was another question – it could not have been because it led to this process. As you recall there was evidence to the effect that the Public Protector wrote a couple of times to the previous Speaker to say ‘you cannot start with the impeachment process until there are rules.’ The rules did come into place. There was litigation in respect of the rules. The litigation was a success for both the Public Protector and Parliament. Some of the rules were upheld and some were set aside. As to whether it was necessary, I would say it was to do the litigation.

Chairperson: You indicated that you were in private practice. How long have you been in private practice?

Mr Sithole: I only did my articles for a period of two years then I went back to the Public Protector as investigator.

Chairperson: Ok, so you did articles for two years. How many times in your own knowledge while at the Public Protector’s Office, has a senior counsel opinion been redrafted by an attorney and put under the attorney's letterhead?

Mr Sithole: Very few times. It would be in respect of Mr Ngobeni’s opinions.

Chairperson: Nothing beyond that?

Mr Sithole: Nothing beyond that – other than they always make comments on counsel’s opinions before they were finalised, not to be on the letterhead of the attorney.

Chairperson: Now that you have raised Mr Ngobeni, has he advised on or provided any input of any nature on any other matter?

Mr Sithole: My recollection is that he made inputs on this matter, of the rules and impeachment process. There was an opinion that he had given to the evidence leaders – on the issue of the rules. I cannot remember any other involvement. He had been involved in some of the matters where opinions were provided.

Clarification by Evidence Leader
Adv Nazreen Bawa: Upfront, there are a number of issues that I am going to raise in relation to what was said by Mr Sithole during the cross-examination and in response to the Committee. I will be putting a number of questions to Mr Sithole.

Your experience is limited to what you picked up during your articles, correct?

Mr Sithole: Correct.

Adv Bawa: In effect, when you were appointed as Manager of Legal Services at the Public Protector’s Office, you had less than three years of management experience. Correct?

Mr Sithole: Correct.

Adv Bawa: All bills get paid through Legal Services.

Mr Sithole: Correct.

Adv Bawa: They get sent directly to you, as the end department, you sign off on them and forward them up the chain for payment.

Mr Sithole: Correct.

Adv Bawa: Would it be fair to say that the bulk of the bills submitted by Seanego Attorneys since they commenced with services in 2018 were signed off by yourself?

Mr Sithole: Correct.

Adv Bawa: You were then asked if you regarded the expenditure on Legal Services to be wasteful and fruitful expenditure, you stated no. In effect, if you had admitted that it was fruitless and wasteful expenditure, you would then have to have admitted that you approved fruitless and wasteful expenditure.

Adv Dali Mpofu interrupted…

Adv Mpofu: Chairperson, before she puts him…

Chairperson: I did not see you hand Mr Mpofu.

Adv Mpofu: Apologies. What is happening? It looked like Adv Bawa was cross-examining her own witness and putting it to him, ‘and all sorts of things.’ She cannot do that. Secondly, if she was going to lead anything new which was not in the statements, she would have to let him know and give normal notice and then we can deal with it and cross-examine on that new material. This underscores the unfairness of the situation, where they were the only ones who were given ‘a second bite at the cherry.’ That second bite was meant to be for clarification, not cross-examination or anything new. I am strongly objecting.

Chairperson: She was on the platform in terms of directives 6.16 and 6.17. So far I have not picked-up anything new that has been raised. I am going to ask Adv Bawa to respond.

Adv Bawa: Chairperson, there were things that Mr Sithole brought up in cross-examination that were new. I am entitled to obtain clarification in respect of those issues raised, and in respect of questions and answers relating to the Members. I do not intend going beyond that extent of clarification, except in one respect, and that was the opinions that Mr Sithole had provided as an indication of what had been given by Mr Ngobeni – which was provided to Mr Mpofu. I may not even go to the opinions directly depending on what Mr Sithole’s answers are. There was no cross-examination. I want to continue without interruptions, so that the Committee can continue with the agenda for the day.

Adv Mpofu: I think this is ridiculous. I do not know what interruption Adv Bawa is talking about. I am making an objection. I have a raised a point and have outlined it. She answered it. What interruption is she referring to?

Adv Bawa: I am not saying there has been an interruption. As I proceed with the day, I would appreciate not being interrupted.

Adv Mpofu: Chairperson, whatever your ruling is going to be, at the very least, if she raises anything new in relation to an opinion, I will exercise my right to cross-examine on that new material.

Chairperson: I hand over to Adv Bawa.

Adv Bawa: Mr Sithole, you were asked by Adv Mpofu whether you regarded the expenditure of Legal Services to be wasteful and fruitless expenditure. You indicated no. In fact, you further indicated that you had never experienced fruitless and wasteful expenditure – did I understand your answer correctly?

Mr Sithole: I remember saying no.

Adv Bawa: I am putting to you that you are the end user that signs off on these invoices. Effectively, if your answer had been ‘yes,’ you would have been one of the parties responsible for such wasteful and fruitless expenditure, correct?

Mr Sithole: Correct.

Adv Bawa: You also offered in cross-examination, that when it came to dealing with litigation matters, that context was everything. Did I understand you correctly when you said that.

Mr Sithole: Correct.

Adv Bawa: I am going to come to that in a moment. Let's go to Mr Ngobeni. Do I understand your evidence correctly. You do not have personal knowledge about if he is an advocate.

Mr Sithole: Correct.

Adv Bawa: You do not know if he is a practicing advocate.

Mr Sithole: Correct.

Adv Bawa: You can confirm that he is not a member of the Bar?

Mr Sithole: Correct.

Adv Bawa: You can confirm that he is not an SC.

Mr Sithole: Correct.

Adv Bawa: This may have been a slip of the tongue, but you said that you were aware that he practiced as an advocate in the United States of America (USA). Are you aware that there is no system of advocates and attorneys in the USA?

Mr Sithole: I think I even said that I was told by the late Chief of Staff that he practiced in the USA as an advocate.

Adv Bawa: What else do you know about his US experience?

Mr Sithole: Nothing.

Adv Bawa: You were not told anything else by the Chief of Staff?

Mr Sithole: Correct.

Adv Bawa: It was put to you by Adv Mpofu that this thing was directed at a particular brief and your response was ‘I am aware.’ I could not quite understand what ‘thing’ he was referring to. In the context of this, could you clarify that?

Mr Sithole: No, I cannot remember what this ‘thing’ was, unless Adv Mpofu clarifies that.

Adv Bawa: You confirmed that Mr Ngobeni was engaged on the recommendation of the late Mr Nyembe.

Mr Sithole: Correct.

Adv Bawa: How did you know this?

Mr Sithole: Because we used to get instructions from Mr Nyembe on the appointment of Mr Ngobeni.

Adv Bawa: That does not answer the question. How do you know that it was Mr Nyembe that recommended Mr Ngobeni to the Public Protector?

Mr Sithole: He would send emails, he would call, he would pop in to the office, there were many instances where he would communicate how he would appoint counsel and who he would appoint.

Adv Bawa: I want to be clear. It should not be left up to speculation as to how Mr Ngobeni came to be appointed. You indicate that you were told that Mr Nyembe was a great admirer of Mr Ngobeni, and you agreed. What did you base that on?

Mr Sithole: From what he used to say about Mr Ngobeni. He used to speak a lot about him.

Adv Bawa: What did he say?

Mr Sithole: That he was a brilliant thinker, that he had good legal acumen etc.

Adv Bawa: Can you tell us what else he used to say besides that?

Mr Sithole: Nothing else, other than the good things he said.

Adv Bawa: You agreed with Mr Mpofu that Mr Nyembe’s mandate was wider; wider in what sense?

Mr Sithole: He was the Chief of Staff and he used to oversee Legal Services. Even during the time of Mr Nemasisi.

Adv Bawa: What do you mean by oversee, because in the reporting line, Legal Services does not answer to the Chief of Staff?

Mr Sithole: He used to be involved in most decision-making relating to litigation.

Adv Bawa: Did you have to follow Mr Nyembe’s instructions?

Mr Sithole: Yes, whenever he issued them because I believed that he must have consulted with the Public Protector.

Adv Bawa: You were asked by one of the Members as to whether consideration was given to the appropriateness of the person being briefed. You answer was that 'the instruction.’ I understood that to mean ‘the instruction to you.’ Is that correct?

Mr Sithole: Yes.

Adv Bawa: The instruction would come to you after the issue of appropriateness had been given thought to. Was that your evidence?

Mr Sithole: Correct.

Adv Bawa: If that instruction came from the Public Protector, was it your evidence that she would have had to give thought to the appropriateness of the person being appointed?

Mr Sithole: She would have known if the person was good in that area of the law, or whether that person could render an appropriate opinion or whatever reason she believed warranted the person to be appointed.

Adv Bawa: You agreed with Adv Mpofu that there was a hostile political economic and social environment and that Mr Ngobeni was recommended to supposedly navigate the hostile landscape.

Adv Mpofu interrupted.

Adv Mpofu: I never said what was being attributed to me now.

Chairperson: You dispute that?

Adv Mpofu: It never happened.

Adv Bawa: Mr Sithole, do you recall answering Mr Mpofu’s questions in respect of a hostile environment within which the Public Protector operated?

Mr Sithole: Yes, but I think that must have been contextual on the issue of how Mr Ngobeni was appointed if I remember correctly. I cannot remember the context

Adv Mpofu interrupted.

Mr Sithole: Maybe I must request that questions put to me must be put in the context that they were given, not what someone else said otherwise I might misrepresent what someone else said.

Adv Mpofu: The question Adv Bawa was looking for was when I put to Mr Sithole that the Public Protector’s Office operates in a generally hostile environment. I even said that it had nothing to do with Adv Mkhwkebane – it applied to every Public Protector. That was the question and context, so that they do not search for context etc when I am sitting here.

Adv Bawa: It was a three-fold question and a three-fold answer. The first proposition was the Mr Nyembe’s mandate in the Public Protector's Office as special advisor was beyond legal matters, also communications and political landscape, economic landscape and operating environment. Your answer was, ‘yes, when he was special advisor and Chief of Staff.’ Do you recall that?

Mr Sithole: Correct.

Adv Bawa: Adv Mpofu then put to you ‘the hostile environment in which the Public Protector operated by nature of the Office.’ Do you agree that there was a hostile environment in which the Public Protector operated by virtue of the nature of the Office?

Mr Sithole: Correct.

Adv Bawa: I am asking you what is that hostile environment.

Mr Sithole: The hostile environment was simply in the mandate of the Public Protector. The Public Protector had the mandate to investigate all corners of Administration. There would not always be a situation where every member of the executive was happy that he/she was being investigated. In my time, some members would go out in public to attack the Public Protector – some would attack during the matters she was investigating. By ‘hostile environment’, I mean people not being happy that the Public Protector was investigating them. That was not a political statement. It was a statement that was made in the judgment. By the nature of her position, she was likely not going to be liked by those she was investigating. I can confirm that I am aware of it.

Adv Bawa: Following you response to that answer, it was put to you that the evidence would be that Mr Nyembe was of the view that because of this hostility, someone who was not a ‘straight jacket’ lawyer, and would not just deal with legal issues, someone like Mr Ngobeni was appointed. You said you could not dispute that. Effectively, someone like Mr Ngobeni was appointed to deal with matters beyond legal issues.

Mr Sithole: Correct. I do not think that is the correct context in which political etc was meant. I think Mr Nyembe meant that one wanted someone who had a knowledge of politics and the law, not that one wanted both the political service and media. He is not here; I now have to second-guess what he meant.

Adv Bawa: You do not need to second-guess. You agreed with the statement. I am trying to explore what was your understanding in agreeing with the statement.

Mr Sithole: I think I provided an answer, unless it was not clear enough.

Adv Bawa: You also agreed with Adv Mpofu that Mr Ngobeni’s engagement was based on his legal expertise, which you obtained from Mr Nyembe, and his standing as a writer in the public space. There are two questions arising from that which I want clarity on. You have partially answered the question of legal expertise. You have a law degree, a South African law degree, correct?

Mr Sithole: Correct.

Adv Bawa: Do you know if Mr Ngobeni has a South African law degree.

Mr Sithole: No.

Adv Bawa: So the only legal expertise you are aware of is what Mr Nyembe relayed to you. Is that so?

Mr Sithole: Correct.

Adv Bawa: In fact, if one had scrutiny of Mr Ngobeni’s invoices they did not even comply with the tax laws in this country. As an advocate, standing as a writer in the public space would have a bearing to render legal services.

Mr Sithole: I spoke to the legal expertise, that I can confirm. The opinions I can confirm.

Adv Bawa: Your agreement with Adv Mpofu had nothing to do with his standing as a writer in the public space.

Mr Sithole: I do not know his standing as a writer in the public space. I do not think I have agreed that he has a good standing in the public space.

Adv Bawa: I seek this clarity because it was put to you that one of the reasons for recommending Mr Ngobeni was because he would bring legal expertise and standing as a writer in the public space. Your answer was ‘yes.’

Mr Sithole: I said the context was why Mr Nyembe would have believed in Mr Ngobeni.

Adv Bawa: Sorry, Mr Sithole, are you elaborating on this now?

Mr Sithole: The context was in reference to why Mr Nyembe would have recommended Adv Ngobeni. It would have stated both writer in the public space and law.

Adv Bawa: Would you agree that whatever standing you may or may not have as a writer in the public space, had no bearing on your expertise to render legal advice? Whatever your standing may be as a writer in the public space, it had no bearing on your expertise to render legal advice?

Mr Sithole: Correct.

Adv Bawa: You also agreed with Adv Mpofu that some of his work was legal input, and other times it was communications input. What other work would be identified as communication input?

Mr Sithole: That was in the context of the invoices that were flighted, in relation to the two articles that were mentioned there.

Adv Bawa: I put something to you and asked, are you aware of any involvement on the part of Mr Ngobeni other than what was put on the screen, being invoices, the GRN forms about Mr Mboweni’s opinion, travelling, the research, the reading, the drafting of responses, a letter to the National Assembly (NA), the Committee and the President’s investigation, the advise on strategy etc. Effectively everything that was flighted including the articles. Your response to me was that as far as you were aware, Mr Ngobeni had only been engaged to provide the opinions that the PPSA had paid for. You did not specify the opinions, but later on in respect of at least two or three matters. Do you recall?

Mr Sithole: Yes.

Adv Bawa: So we must add to that, in addition to the legal opinions, he provided communication input in respect of the articles, and got paid for them per the invoice.

Mr Sithole: I am not sure that I get that part.

Adv Bawa: Let's break it down. He renders legal advice, in the form of legal opinions. Correct?

Mr Sithole Correct.

Adv Bawa: He did that, on your version, three times.

Mr Sithole: Correct.

Adv Bawa: I will come to those three instances. You are not aware of any other services rendered by Mr Ngobeni, apart from those three opinions and the two articles flighted on that invoice. Is that your evidence?

Mr Sithole: No, I think he also assisted, I think I also related that to the Chair’s last question in some matters including one of the rules. I know he made inputs about how that litigation should go up to the stage where we engage the services of Adv Mpofu.

Adv Bawa: In which matter are you now referring?

Mr Sithole: The impeachment.

Adv Bawa: And in any other matters?

Mr Sithole: To my recollection, no.

Adv Bawa: I am going to come back to those opinions in a moment. Let me deal with it in this way, Adv Mpofu put seven different ways in which an external legal advisor can be briefed. Do you recall that?

Mr Sithole: Correct.

Adv Bawa: As I understood your evidence, it was that the appointment of Mr Ngobeni was from the inception of his appointment at the recommendation of Mr Nyembe. Was that correct?

Mr Sithole: Correct.

Adv Bawa: As I understood your evidence to be Mr Sithole, you started at Legal Services in April 2018. Correct?

Mr Sithole: Correct.

Adv Bawa: Mr Nyembe started as Special Advisor in April 2018.

Mr Sithole: Correct.

Adv Bawa: So if Mr Ngobeni was briefed due to his recommendation by Mr Nyembe, then that would have been subsequent to April 2018. Would that be so?

Mr Sithole: That should be correct.

Adv Bawa: If he was briefed prior to April 2018? What then?

Mr Sithole: That would have been from the Public Protector.

Adv Bawa: What do you mean.

Mr Sithole: The instruction – that was before my time – so I cannot say for sure. That instruction might have come from the Public Protector.

Adv Bawa: But it certainly could not have come from Mr Nyembe because he was not employed as a Special Advisor. Would you agree with that?]

Mr Sithole: In 2018?

Adv Bawa: Yes.

Mr Sithole: I cannot remember when Mr Nyembe was appointed as Chief of Staff. He was Special Advisor and then he was appointed as Chief of Staff.

Adv Bawa: Let me help you, as I confirmed this yesterday. He was appointed as a Special Advisor during the period April to July 2018. He was then not in the employ of the Public Protector until January 2019, where he was employed as a Chief of Staff.

Mr Sithole: I would accept that.

Adv Bawa: If we look at the invoices rendered. To be exact, Mr Nyembe start on 10 April 2018. If one looked at the first invoice rendered by Mr Ngobeni – the first date he rendered a service was on 28 June 2018. That fell within the period in which Mr Nyembe was engaged – my apologies.

Were you aware of any direct instructions given by the Public Protector to engage the services of Mr Ngobeni?

Mr Sithole: Not to my recollection.

Adv Bawa: Let's just deal with the three opinions that you say were provided by Mr Ngobeni, the first one was discussed under direct examination. That was the one rendered on 11 April 2019 under the Seanego letterhead.

Mr Sithole: Was the first one not 2018?

Adv Bawa: No, I’m not giving them in date order. The second one was the one you provided more recently. That was the one rendered on 25 July 2018, when Mr Nemasisi was in office. This was also styled as an advice from the attorney. Correct?

Mr Sithole: Correct.

Adv Bawa: The third one was the one related to Mr Mboweni, which was undated. If one looked at the fee note, it was February 2019. None of these were signed by Mr Ngobeni. It was not styled as a legal document, in respect of legal privileges to be claimed. Correct?

Mr Sithole: Correct.

Adv Bawa: It did not refer to any instruction nor briefing provided. Agreed?

Mr Sithole: Correct.

Adv Bawa: You have not provided any memorandum with an instruction to Seanego to brief Mr Ngobeni directly. Did you generate a memorandum to that effect?

Mr Sithole: I am not sure I get the memo – which memo?

Adv Bawa: Let me give you an example. You provide the attorney with a memorandum when you seek legal opinions in relation to the nature of the legal opinion being sought. Do you not?

Mr Sithole: It is a letter. In the letter we put what opinion we want.

Adv Bawa: In the Bosasa matter, you provided a memorandum to Seanego with an instruction that the senior counsel must be briefed to provide the legal advice. Did you not?

Mr Sithole: I think that was a letter. We do not do a letter to an attorney, we send a letter to appoint them and the basis on which we appoint them.

Adv Bawa: Let's call it a letter. You provided a letter which reflected the instructions in relation to which you sought to approve and to provide the services of the senior counsel. In fact the invoice to which we referred specifically says that they are to brief a senior counsel. Correct?

Mr Sithole: Correct.

Adv Bawa: Yet you did not get an opinion from a senior counsel.

Mr Sithole: Correct.

Adv Bawa: Why was that not taken up with the attorneys?

Mr Sithole: Obviously, the attorneys would check with us on the issue of counsel. If we specify one senior counsel, they will check which senior counsel, unless we have told them which. Subsequently to the sending of the letter, the instruction might be broadened or narrowed, the name or status of the counsel could be changed.

Adv Bawa: You gave me a general response. Is that what occurred in respect of this matter? Did the Public Protector change her instruction, that Mr Ngobeni could render the advice.

Mr Sithole: That would have been the case.

Adv Bawa: Was Mr Ngobeni paid directly or indirectly beyond the three to which you referred.

Mr Sithole: I know he was paid from the attorney in respect of the advices he rendered.

Adv Bawa: Adv Mpofu put to you, and you agreed, that Mr Ngobeni’s services were acquired through whatever attorneys were involved in particular matter. In answering a question from one of the Members, you stated that he was only engaged through the services of Seanego. Was he only engaged through the services of Seanego or was he engaged through the services of other attorneys as well.

Mr Sithole: I only know of him being engaged through the services of Seanego. I do not think there is any other attorney who had briefed Mr Ngobeni through us – unless it was something I do not know about.

Adv Bawa: It was put to you that for this situation where Mr Ngobeni was briefed with an advocate, you would not have been privy to the other services he may have been briefed for.

Mr Sithole: I am not sure I get that.

Adv Bawa: That was what was put to you. It was put to you that Mr Ngobeni was briefed with an advocate and would not have been privy to the other services he would have been briefed for. You responded to state that your involvement related to obtaining only the opinion.

Adv Mpofu interrupted.

Adv Mpofu: That was not true. What I put to the witness in relation to this was, if Mr Ngobeni was briefed and given a particular mandate, the Legal Department would not have been privy to what other services that advocate would acquire in the pursuance of that brief. I made an example using myself if I needed a specialist in this or that area – not what was being misquoted now.

Adv Bawa: I accept Mr Mpofu’s explanation. My note is that except for the situation Mr Ngobeni was briefed with an advocate – you would not have been privy to the other aspects he was there for. I will rephrase the question. Mr Sithole, if I understand your answer, you said that your involvement in respect of work rendered by Mr Ngobeni was restricted to that in respect of which he provided the two opinions (the one proceeding your involvement).

Mr Sithole: Yes, in respect of matters in which he was paid by our Office.

Adv Bawa: Are you aware of any other consultant or service provider that had been paid by Seanego by services rendered to the Public Protector.

Mr Sithole: We paid Seanego, and Seanego paid consultants.

Adv Bawa: Are you now saying that there were consultants employed that Seanego paid, or are you saying that you are not aware of any consultants Seanego paid.

Mr Sithole: We brief Seanego to brief a consultant or advocate. We pay Seanego. Seanego then pays the consultants. That was the clarity I was trying to provide.

Adv Bawa: Which consultants were paid by Seanego, apart from advocates.

Mr Sithole: That is what I am trying to understand – is that the question?

Adv Bawa: Yes. Step back, presumably when Seanego engages the services of consultants for purposes of rendering services to the Public Protector, it is done with your knowledge.

Mr Sithole: Correct.

Adv Bawa: Did Seanego engage consultants to render services to the Public Protector’s Office without your knowledge.

Mr Sithole: No, not as far I remember, in terms of services that the Office paid for.

Adv Bawa: Adv Mpofu put to you where it was more communications input than legal input – so Legal Services refused to pay. Do you recall that?

Mr Sithole: Yes.

Adv Bawa: Your response was, ‘I am not sure, but I think I can recall there was such a case.’ I want to put a statement on the screen, which was part of Bundle F, page 2997. Adv Mpofu was reluctant to put a document referring to an attorney on the screen – I do not share that reluctance. I want to check whether the example being referred to was what you and Adv Mpofu were referring to. If you look at the line item 2997, which said media publications – was that what you had in mind Mr Sithole? Is that what you understood Adv Mpofu to be putting to you?

Mr Sithole: I think that’s correct.

Adv Bawa: That is a line item that is dated – I am referring to the top one in yellow, dated 25 August 2019. Its media publications. This was a statement issued by Seanego at the end of the month to the Public Protector’s Office – correct?

Mr Sithole: Correct.

Adv Bawa: Explain to us the context of that line item.

Mr Sithole: It said media communication. I am not sure if I am missing something from the statement.

Adv Bawa: It had an invoice number referenced to it. It was a statement that referred to invoices rendered.

Mr Sithole: Correct.

Adv Bawa: It reflected an amount of R416 726.40 as being what was raised on this invoice.

Mr Sithole: Correct.

Adv Mpofu interrupted.

Adv Mpofu: I do not think that Adv Bawa is misrepresenting what I said deliberately – maybe it was vague. For the record, I have never seen this document. I was referring to something else, not this. This was one of the newer things that I will seek to ask questions in cross-examination.

Adv Bawa: Adv Mpofu you put it him; there was another example where it was more communications input than legal input. Are you saying that was not what you put to him?

Adv Mpofu: No, you must listen to what I have said. I have never seen this – I am seeing it for the first time. I am only saying it in relation to my right to cross-examine.

Adv Bawa: I was actually alerted to it by your Junior – but we will leave that.

Adv Mpofu: I am saying I have never seen this. The question I put was not based on this particular document. I have never seen it.

Adv Bawa: I am asking the witness if his response was based on that particular invoice.

Adv Bawa: Mr Sithole you have confirmed that this was the invoice you had in mind when you answered Mr Mpofu. Is that correct?

Mr Sithole: Not the invoice, per se. I do think it was necessarily specific to that invoice, it had to do with communications and legal.

Adv Bawa: Let's take a preceding question. Has there been more than one invoice, where theres been a refusal to pay on the basis that it’s a communications matters and not a legal matter.

Mr Sithole: No, I do not remember if there was more than one.

Adv Mpofu: Adv Bawa must not cross-examine her own witness. If she wants to lay a basis that the witness has not put a full disclosure or whatever she’s saying, then she must do so and on that basis one can allow her to ask certain questions or not. But she has not done that and she knows it. This guise to say it was not her witness – who took their statements and prepared the witness – it was her. She cannot disown the witness when it suits her. These witnesses were called by the evidence leader. There is such a thing as witnesses called by the evidence leader and witnesses called by the Public Protector. There is a difference between how and who they should lead evidence etc. You cannot just allow her jamboree, which was indescribable.

Chairperson: I am going to allow Adv Bawa to continue. I have explained what we have started doing this morning.

Adv Mpofu: Then explain to me again, Chairperson, I do not know what is happening.

Chairperson: She is asking questions, the directives allow her to do that. I understand it as part of 6.16 and 6.17 of the directives.

Adv Bawa: On page 2990 of the same bundle, there was an invoice rendered by Seanego on the 20 December 2019. On the next page, the first line item on that page, it said 'Email Mr Ngobeni regarding the interlocutory application'. You signed off on this invoice, Mr Sithole.

Mr Sithole: Correct.

Adv Bawa: What involvement did Mr Ngobeni have in the interlocutory application relating to the Minister?

Mr Sithole: I’m not sure – it is the same one that was dealt with by the advocate.

Adv Bawa: The first line item said the advocate. What involvement did Mr Ngobeni have in this?

Mr Sithole: I am not sure.

Adv Bawa: Do you scrutinise the invoices before you authorise payment?

Mr Sithole: Yes, we do.

Adv Bawa: It’s a nominal amount you did not seek to query it?

Mr Sithole: It means it was not queried.

Adv Bawa: With respect to the Vrede matter, you already indicated that the law firm TGR handled the matter and were then substituted when it came to the appeal process.

Mr Sithole: Correct.

Adv Bawa: Your evidence was that you cannot remember why Seanego replaced TGR in the appeal process. Was that your evidence?

Mr Sithole: Why TGR was replaced? No, I cannot recall.

Adv Bawa: Mr Ngobeni was paid through the attorney Seanego, did Mr Ngobeni get any instruction to have any involvement in the Vrede matter?

Mr Sithole: I am not sure, at which stage? At the appeal stage?

Adv Bawa: At the appeal stage, after the judgment was handed down. Did Mr Ngobeni have any involvement in the Vrede matter subsequent to that? Your evidence was that you were integrally involved in this.

Mr Sithole: Yes.

Adv Bawa: Mr Sithole, I am asking you again, were any instructions given to Mr Ngobeni about involvement in the Vrede matter subsequent to the judgment being handed down.

Mr Sithole: My recollection is that we had Adv Botes to file the appeal and argue leave to appeal. When leave was refused, when we filed the direct access to the SCA, those papers were filed by another advocate.

Adv Bawa: Mr Sithole, I am asking you if the services of Mr Ngobeni were engaged in respect of the Vrede matter post the judgment.

Mr Sithole: My response is that I cannot recall. What I know is that we engaged the services of Adv Botes to file and argue leave to appeal.

Adv Bawa: Given your lack of recollection, you cannot deny that Mr Ngobeni was involved in providing work related product and was consulted in respect of the Vrede matter.

Adv Mpofu interrupted.

Adv Mpofu: I can tell you what's happening – its cross-examination.

Chairperson: Is that what you are raising your hand for?

Adv Mpofu: I am objecting.

Chairperson: Objecting to what?

Adv Mpofu: I am objecting to the ongoing cross-examination of the witness by Adv Bawa.

Chairperson: Adv Bawa is going to continue what she is doing. Your objection is noted.

Adv Mpofu: Directives 6.16 and 6.17 do not allow for cross-examination, which is happening now.

Chairperson: This is not cross-examination. I am making a ruling that Adv Bawa is going to continue to ask questions arising out of your cross-examination and questions from Members. Your objection is long noted. A ruling has been made.

Adv Mpofu: I know that about the ruling you made hour and a half ago. I am saying that this objection was not the same as the first one. This was about just this last question. The last two or three questions amounted to cross-examination.

Chairperson: I have not picked up any cross-examination. Please continue Adv Bawa

Adv Bawa: I am putting to you that you are actually well-aware that Mr Ngobeni rendered services in the Vrede matter and you are not making a full disclosure to the Committee.

Mr Sithole: I cannot recall if he did.

Adv Bawa: When you scrutinise the Seanego invoices for payment, do they comply with the PPSA tariff rates?

Mr Sithole: Yes, some do. Some did not – some were turned back which did not comply with the rates.

Adv Bawa: Did you approve the invoices that did not comply with the rates?

Mr Sithole: I am sure there were others that must have been approved that did not comply with the rates. It was most likely not only Seanego.

Adv Bawa: If this had been brought to the attention of the Auditor General, it might not have resulted in a clean audit.

Adv Mpofu interrupted.

Adv Mpofu: Chairperson, I know it's probably out of frustration because the case is collapsing – we’re not going to allow Adv Bawa to make snide remarks about the Public Protector and a clean audit. You cannot erase the three clean audits by snide remarks. We draw the line where she is allowed to make snide remarks aimed at the Public Protector. She must withdraw her remark about a clean audit.

Adv Bawa: I made no snide comments about the Public Protector. As far as I am concerned, under the Public Finance Management Act it was not the executive authority that was responsible for clean audits – but that was a question for argument.

Adv Mpofu: If she wants to give evidence…

Adv Bawa: I put to the witness that he authorised invoices that did not reflect the PPSA tariff rate – he accepted that he approved invoices that were not consistent with the PPSA tariff rates. That would amount to expenditure that would not comply under the PFMA Act. In the greater scheme of things potentially impact on a clean audit, if brought to the attention of the Auditor General. That was the context. I am happy to ask the witness if he agrees that invoices were authorised that were not consistent with the PFMA.

Mr Mpofu and the Chairperson interrupted one another.

Adv Mpofu: I am not here for the impeachment of Mr Sithole, which this is turning out to be. My objection about the snide comment related to the invoice that was not paid out. I am placing my objection on the record.

Chairperson: Your objection is noted.

Mr Nqola: We have been listening to these continued objections of Mr Mpofu. The Chairperson had made it clear that 6.16 and 6.17 applied. From 6.16, it did not determine how long the questions should take, it also did not regulate what form or kind of questions were supposed to be asked by evidence leaders. I do not think there's an issue on that. I do not take kindly to the manner in which Adv Mpofu expressed his discontent. I do not have an issue with him raising his discontent in respect of the proceedings of this enquiry. How he did it – I have a problem with it – he interjects, shouts, but does not want to be shouted at. As much as we are to respect each other – let's have boundaries in terms of respecting the authority of the Chair.

Adv Bawa: A considerable amount of time had been taken up with Adv Mpofu raising objections.

Adv Mpofu: That’s not true and my hand is up.

Chairperson: I have ruled that the evidence leader will continue with this witness.

Adv Bawa: Mr Sithole my last question to you was not based on the invoice I referred to on the schedule. I put the proposition to you as to whether there were invoices you had approved which did not comply with the PPSA tariff rate.

Mr Mpofu interrupted.

Chairperson: I have not recognised you Mr Mpofu.

Adv Bawa: I put the proposition to you unrelated to the invoice reflected on the statement, as to whether you had approved invoices which did not comply with the PPSA tariff rates. You indicated that there were some invoices that were approved. Did I understand your evidence correctly?

Mr Sithole: Yes.

Adv Bawa: Where invoices are paid out subsequent to approval – which did not comply with the PPSA tariff rates – it would not be consistent with the PFMA. Would you agree with that?

Mr Sithole: I would.

Adv Bawa: That was not brought to the attention of the Auditor General. Is that correct?

Mr Sithole: No, that’s not correct. An audit was done in a specific way. When they did it, they audit invoices for a specific period – so they would not ask for all invoices. They would sample a couple of firms. There was one invoice that was picked up by the AG which did not comply with the rates. The service provider refunded us the balance.

Adv Bawa: The Auditor General then provides a note to the PPSA in respect of audit queries that are raised. Would that be correct.

Mr Sithole: Correct.

Adv Bawa: Were any audit queries raised in respect of the Seanego invoices?

Mr Sithole: Not to my recollection.

Adv Mpofu: There was no need for anyone to shout, including Mr Nqola and the Chairperson. I am making points here which are important. I am doing it to place them on the record. This was the situation. The directives which the Chairperson passed, which he had objected to are the ones that determined the process, not the shoutings of Mr Nqola. 6.17 of the directives – ‘the evidence leaders, may in presenting evidence ask any questions, including leading questions to any witness.’ 6.8 said ‘After the evidence leaders had presented the evidence of a witness, the Public Protector may cross-examine that witness. 6.16 The one that was ‘being abused now,’ stated that ‘after Members had posed questions the evidence leaders may ask any questions arising, or seek clarity from the witness in relation to questions posed to such a witness, whereafter the Chairperson may excuse the witness from the hearings.’ Nowhere in the directives – the evidence leaders do not have the right to cross-examine anybody, unless the document was amended. That was the point I was making. If you overrule my objection, the only basis on which you can overrule it was if you disagree that this was not cross-examination. I was telling you that it is cross-examination. Let's not misrepresent what the rules allow or do not allow.

Chairperson: Your objection about cross-examination is noted and declined. I want Adv Bawa to continue.

Adv Bawa: Before I do so, with reference to the directives. Under 3.3 it said, ‘the evidence leaders will present the oral, documentary and other evidence before the Committee, in accordance with the Rules of the Assembly, the terms of reference of this directive and any others that may be issued by the Chairperson. The terms of reference provide in paragraph five, that the enquiry was inquisitorial in nature and the evidence leader does not act as a prosecutor. The evidence leader was limited to presenting evidence and putting questions to the Public Protector or other witnesses with the aim of empowering the Committee to assess the merits of the evidence in line with its mandate. The format was determined by the evidence leader in consultation with the Chairperson. I am endeavouring to empower the Committee to assess the merits by pointing out the flaws and inadequacies of what this witness had told the Committee. If I would be afforded the opportunity to complete the questioning of the witness.

Adv Mpofu: What Adv Bawa calls ‘to show the flaws of the evidence of the witness’ – is called cross-examination.

Chairperson: Adv Bawa please continue.

Adv Bawa: Mr Sithole the point I was making was that the Auditor General, in the audit he took had no regard to the invoices rendered by Seanego, was that correct.

Mr Sithole: I am not sure if I get that.

Adv Bawa: I want to move on the point that your evidence in direct examination and the selection of the attorney was your choice.

Mr Sithole: Can you go back to the previous question, I did not get it.

Adv Bawa: In the course of the exchange between us, in which you explained the Auditor General’s process, I said to you that in the audit report, submitted by the Auditor General subsequent to its examination, there was nothing raised in respect of the Seanego invoices.

Mr Sithole: I said yes, to my recollection.

Adv Bawa: So I put to you that there was nothing found by the Auditor General in respect of those invoices – where the PPSA rate had not been complied with.

Mr Sithole: Yes, that was not picked up by the Auditor General.

Adv Bawa: Under direct examination you indicated that the selection of the attorney was your choice.

Mr Sithole: Correct.

Adv Bawa: Let's accept that we are talking about attorneys from the panel. You change attorneys; you go from one attorney to the other – was that also your choice?

Mr Sithole: Correct.

Adv Bawa: When TGR got replaced by Seanego in the CASAC matter – that was your choice?

Mr Sithole: Correct.

Adv Bawa: You then indicated in your evidence that today there was an equitable distribution of work between the attorneys on the panel.

Mr Sithole: Correct.

Adv Bawa: You recently received a communication from an attorney on the panel, to which you responded, when they were on the panel and received no work. Do you recall that?

Mr Sithole: Yes.

Adv Bawa: You responded to that email. What was your response?

Mr Sithole: I would have to read it, in a nutshell I think I said there was not enough work at this stage. The SC was referring to the new panel – not the old panel. There were three or four firms in the new panel that had received work – and there were a total of 36 firms.

Dr M Gondwe (DA): Can I request that if Adv Bawa makes reference to any emails or arguments, could she flight them for us so that we are on the same page.

Adv Bawa: I do not have it. I was made aware of it from Mr van der Merwe the day before, that there was a query by an attorney on the panel, to which Mr Sithole responded. I am raising it in the context of where he had indicated to the Committee that there was an equitable distribution of work. I will endeavour when Mr van der Merwe gives evidence timeously to provide that to you.

Mr Sithole: I do not think that was what Mr Nqola meant – I thought equitable distribution of work to the attorneys. This was on the old panel.

Adv Mpofu: I am covered. The witness clarified this. When the email becomes available, please share it.

Adv Bawa: Mr Sithole, in your affidavit we dealt with the panel of attorneys. Correct?

Mr Sithole: Correct.

Adv Bawa: As I understand it, there was a panel appointed in 2018.

Mr Sithole: Correct.

Adv Bawa: There was subsequently a panel appointed in 2020.

Mr Sithole: Correct.

Adv Bawa: The question of the amount of work distributed to the various attorneys arose in the context of the R149 million that was spent. Yesterday you were asked who got the lion share of the work. Do you recall that?

Mr Sithole: Yes.

Adv Bawa: In fact it was put to you that Seanego gets the lion share – and you disputed that.

Mr Sithole: Correct. The question was why did Seanego get most of the work.

Adv Bawa: You then disputed that Seanego gets the lion share of the work.

Mr Sithole: Yes, on the basis that there were other firms that received work; some had received more work than Seanego.

Adv Bawa: When you say more work, are you saying more cases, or more quantum earned.

Mr Sithole: More cases.

Adv Bawa: So you do not dispute that out of the R149 million being paid in legal fees over the period from 2017 onward, Seanego, including all their costs and counsel fees, by far earned approximately R49 million of that amount over that period – whether old or new panel.

Mr Sithole: That should be correct. I am not sure about the amounts.

Adv Bawa: I forwarded the confirmation from your finance department. The runner-up to Seanego earned R14 million. Since 2020 there had been no equitable share of work, is that correct?

Mr Sithole: Correct. In terms of the new panel, we only gave instructions to a very few firms.

Adv Bawa: There were 38 law firms on the new panel. You choose only a few firms.

Mr Sithole: There had not been much work to be given to law firms. We have cut down on some of the litigation work.

Adv Bawa: Are you saying that from 2020 onward, you did not distribute briefs in an equitable manner?

Mr Sithole: There had not been much work to be distributed.

Adv Bawa: Please listen to the question. Whatever new matters came in since 2020 – are you saying that work was not equitably distributed?

Mr Sithole: Yes, from 2021 we rarely appointed external attorneys to oppose or review applications. The issue of equitable distribution would not apply to the new panel. The issue of distribution depended on where the matter was. One might have 14 firms in the panel, but there might be ten firms that…

Adv Mpofu: Are there any time issues, there seem not to be? The second issue was about the Baloyi matter. It might be easier to go to the motion in that matter – so that one does not waste time.

Chairperson: There are time restrictions. Adv Bawa should start wrapping up as we are going toward the second witness. Part of her time has been interrupted continuously – that was part of the challenge. I hope everyone will allow her to complete the remaining questions.

Adv Bawa: The witness stated that the declaratory relief about the Nkwinti matter…

Mr Sithole interrupted Adv Bawa.

Mr Sithole: I was clarifying that was not what I said. I said that it was a declaratory order that related to other issues, which included the Public Protector’s interference in the Nkwinti matter. It was not that the declaratory relief was about the Nkwinti matter.

Adv Bawa: If you had allowed me to finish, I would have clarified. When the evidence is done I will reflect with the reference to the allocation – that in a number of instances relating to the cases on the mandate – I will draw your attention to three cases specifically. Post the litigation and the Constitutional Court litigation, a legal opinion was procured. The instruction was given to Seanego to procure that legal opinion. Correct?

Mr Sithole: Is this about the opinion I sent to the SC recently?

Adv Bawa: Correct.

Mr Sithole: No, I think that refers to the advice on whether the Public Protector can reinvestigate, not necessarily the judgment, if I understand you correctly.

Adv Bawa: I did not say it related to the judgment. I said it was issued post the Constitutional Court judgment.

Mr Sithole: Yes.

Adv Bawa: You used the services of Seanego in that opinion.

Mr Sithole: Correct.

Adv Bawa: Subsequent to that period you obtained an opinion in respect of crowd funding, relating to the order emanating from the Constitutional Court judgment. Correct?

Mr Sithole: Correct.

Adv Bawa: You used the services of Seanego to obtain that opinion.

Mr Sithole: Correct.

Adv Bawa: In the Gordhan matter, relating to the Pillay pension matter, you initially instructed the attorneys firm VZLR– that was attached to your affidavit. Mr Mpofu referred to it during cross-examination. You then replaced that firm (VZLR) with Seanego.

Mr Sithole: No, they were not replaced; they were only engaged on the opinion from counsel, which was done. The instruction was only to get the opinion and not take it further. The reason for that was that the opinion related to an investigation and not a report that had been finalised.

Adv Bawa: The point I am trying to make is that you obtain an opinion from one firm but when the litigation commences, you go back to Seanego. This was all during the mandate period. Why did you not engage VZLR to continue the matter.

Mr Sithole: As I said, they were engaged to get an opinion in respect of the Pillay pension matter – as you correctly said in litigation we engaged Seanego and Adv Mpofu.

Adv Bawa: I’m not talking about the briefing of counsel – I’m talking about the instructing of attorneys.

Mr Sithole: My answer relates to both.

Adv Bawa: Are you saying that a condition to the briefing was that litigation be handled by a Seanego Attorneys?

Mr Sithole: VZLR was appointed to render an opinion on the pension scheme of Mr Pillay. That opinion then related to an investigation that was ongoing. The investigation was finalised and then a few months later that report was issued. A few months after that it was taken on review and we appointed Seanego to brief Adv Mpofu to argue the matter.

Adv Bawa: The point I am trying to make is why did you go to Seanego when VZLR was already briefed on litigation matters. Why did you not spread the work to the other attorneys.

Mr Sithole: The attorneys had worked on the panel; we felt Seanego would best deal with it.

Adv Bawa: Did Mr Ngobeni provide you with any work in respect of the Pillay matter and any of the Gordhan related matters.

Mr Sithole: I am not sure. Can I be assisted with something that will refresh my memory.

Adv Bawa: I do not have anything to flight. I am asking you. You have gone back to Seanego Attorneys. I want to know if during the course of the Gordhan related matters – you know we saw the fee note in the Dlodlo matter. I am asking you if Mr Ngobeni worked on the Gordhan matter.

Mr Sithole: I am not sure. He might have; he might have not.

Adv Bawa: What does that mean?

Mr Sithole: I cannot say it from my head.

Adv Bawa: Was he provided with the court papers in the interdict or in the review application or any aspect relating to the litigation matters.

Mr Sithole: It is possible, yes.

Adv Bawa: Why would he have been given that?

Mr Sithole: I am not sure.

Adv Bawa: Would you have given that to him?

Mr Sithole: I am not sure – that was why I asked to be assisted, maybe with an email or some form of evidence to refresh my memory.

Adv Bawa: I am going to put to you that in both the Vrede matter and the Gordhan matter – services were rendered by Mr Ngobeni. The reason you switched attorneys to Seanego was partially to ensure that you could pay Mr Ngobeni in respect of that work. What is your comment on that?

Mr Sithole: I do not remember paying Mr Ngobeni for services rendered in respect of litigation.

Adv Bawa: You cannot recall any services at all being rendered by Mr Ngobeni in respect of any litigation – or just these two?

Mr Sithole: I cannot remember paying Mr Ngobeni in respect of any litigation.

Adv Bawa: We have already established that you pay Seanego and Seanego paid on – you do not pay any consultants directly.

Mr Sithole: Remember that the evidence you flighted, would still include Mr Ngobeni.

Adv Bawa: I do not know if Seanego absorbs Mr Ngobeni’s costs into their invoices, as services rendered by them or attach their services separately. I asked you if you had received any work product from Mr Ngobeni in respect of those matters.

Mr Sithole: I do not remember.

Adv Bawa: Did you receive any work product from Mr Ngobeni in respect of an opinion relating to the Waterkloof matter and Zondo Commission?

Mr Sithole: I am not sure, it's possible. Were they not included in the opinions I gave to you?

Adv Bawa: No, we have already established that there were only three opinions. That was your evidence earlier today. Was there now another opinion in respect of the Waterkloof and Zondo Commission matters?

Mr Sithole: I am not sure.

Adv Bawa: I am going to put to the Committee that your failure to remember things, is a failure to make full disclosure to the Committee. I want to give you the opportunity to make comment on that.

Mr Sithole: When evidence was led the first time, I was given evidence on which to respond – especially in respect of Mr Ngobeni. Evidence was flighted on the screen – I was tested on the evidence there and I responded on that. Secondly, I provided evidence to the evidence leaders to the best of my knowledge. Some of the evidence I did not provide the first time because it was discovered late. There was no evidence that I deliberately withheld from the evidence leaders. I simply cannot remember. I am happy if the evidence leader flights the evidence for me to confirm. Yesterday, I said to the evidence leader that Adv Ngobeni provided an opinion on the appointment of special advisors. I was incorrect; that opinion was done by a different advocate. I cannot be painted as deliberately withholding evidence when I have no benefit from withholding information.

Adv Bawa: I had asked if you had any further information about Mr Ngobeni, and you confirmed that you did not. Is that correct?

Mr Sithole: I think my answer was that I could not recall.

Adv Bawa: You also said that you had no knowledge of further consultants being appointed, correct?

Mr Sithole: Correct.

Adv Bawa: Do you know who Kim Heller is?

Mr Sithole: Yes.

Adv Bawa: Was Kim Heller engaged as a consultant?

Mr Sithole: No.

Adv Bawa: You were not party to any meetings or conversations for the purposes of appointing Kim Heller as a consultant?

Mr Sithole: We did attend a meeting; in that meeting they made a proposal to render consultancy services – that process failed.

Adv Bawa: You have no knowledge of them being appointed by Seanego Attorneys?

Mr Sithole: I have no knowledge of them being appointed by our Office.

Adv Bawa: That’s not the question I am asking. You have no knowledge of them being engaged to render services to the Public Protector – for which they were paid by Seanego Attorneys?

Mr Sithole: I do not know.

Mr B Herron (GOOD): I am struggling to follow, is Kim Heller a person?

Adv Bawa: Mr Sithole, who is Kim Heller?

Mr Sithole: She is in the media space I think.

Adv Bawa: Did they jointly put a proposal forward in that meeting?

Mr Sithole: I think so.

Adv Bawa: Did they individually or jointly, to your knowledge, get paid by Seanego Attorneys.

Mr Sithole: Not to my knowledge.

Adv Bawa: You have not seen any invoices in which mention was made of them.

Mr Sithole: No.

Adv Bawa: Out of the R49 million that was spent on Legal Services in respect of Seanego, there were three instances in which there was success. There was the Nkwinti matter, the National Assembly Concourt matter…Would you agree with me, that when you take ten legal points, the matter becomes more pricey than when you take one legal point, as a matter of principle?

Mr Sithole: I am not sure if I get that.

Adv Bawa: If you argue ten items, you have to deal with all ten items in your affidavits and heads of arguments, which is more work, which cost more. Do you agree with that as a matter of principle?

Mr Sithole: Correct?

Adv Bawa: Would you agree that in all the issues raised at the Constitutional Court, 12 challenges – you only succeeded in one.

Mr Sithole: Is it the Speaker matter?

Adv Bawa: What was your answer?

Mr Sithole: Yes, that’s correct.

Adv Bawa: It was put to you in cross-examination that there was some sort of strategy adopted in the GEMS matter that paid off. Do you recall that?

Mr Sithole: Correct.

Adv Bawa: If you got the GEMS judgment, there was no question of a punitive cost order being asked for in the first place or even being considered by the DA.

Mr Sithole: Ok.

Adv Bawa: Do you agree with that?

Mr Sithole: I would.

Adv Mpofu: What on earth has this got to do with this enquiry? Why are you allowing this to happen, how is it going to help you? Are we questioning Mr Sithole or the Auditor General? Are we still on the issue of the Public Protector?

Chairperson: We are still here. There are questions being raised about some of the questions you asked.

Adv Bawa: I did not raise the GEMS matter, Adv Mpofu raised the matter. He put it to the Committee that the reason there was no punitive cost order against the Public Protector in that matter, was because she was not the deponent to the affidavit. I am clarifying that there was no punitive cost order sought in the matter.

Chairperson: Ok, proceed.

Adv Mpofu: Adv Bawa is misrepresenting what happened. I said to the witness in relation to the question of personal costs and vulnerability of the Public Protector to such costs that in the GEMS matter the affidavit was not signed by the Public Protector – which he agreed to. The point I then made was that in any event the Public Protector was not vulnerable to a cost order in that matter. They were discussed during argument in the SCA, that was all. What did that have to do with the work of the Committee whether there was a cost order or not?

Adv Bawa: There was a proposition put to the witness, and he agreed with it. A punitive cost order could not be made against the Public Protector. I pointed out that there was nothing in the judgment that reflects that there was any consideration or thought of a punitive cost order. That was it. I was correcting what was being put to the witness, which the witness agreed with. I do not think there is any point in having a debate about this. I would like to move on now.

Adv Bawa: It was also put to you Mr Sithole that the Public Protector’s view that the Gupta Leaks should be investigated was defeated. You agreed with Adv Mpofu saying that it was defeated. Who would have defeated her?

Mr Sithole: No, I think the word ‘defeat’ would have been extreme to put it that way.

Adv Bawa: Her views were defeated by other views because it could be dealt with at Zondo. Your answer was, among other things, yes. I am not misrepresenting what Adv Mpofu put to you at all.

Mr Sithole: I am saying the word ‘defeated’ in the proposition might have been extreme.

Adv Bawa: You agreed with the proposition yesterday. I am taking you back to it today.

Mr Sithole: If you put it in perspective, I am allowed to disagree with the proposition, if I misunderstood it yesterday. I do not think I am disallowed from correcting propositions that I agreed to.

Adv Bawa: I have no difficulty if you wish to amend your answer but the proposition I want to put to you, is that if the Public Protector felt strongly that something needed to be investigated, then nobody can defeat or overrule her.

Mr Sithole: Correct.

Adv Bawa: You then testified that there was a progressive improvement in performance culture – that was Adv Mpofu’s words and you agreed with him. What did you base that on?

Mr Sithole: I think I gave context to my answer. I think the improvement was in respect of the number of reports that were issued.

Adv Bawa: You agreed with Adv Mpofu when he drew the analogy of being guilty of misconduct – I was not sure I caught that. What precisely were you agreeing to?

Mr Sithole: I cannot remember the proposition – that judges were found to have misconducted themselves.

Adv Bawa: That if judges did not hand down judgments within periods of time, they would be guilty of misconduct. You agreed with Adv Mpofu, I want to understand what your understanding is of the misconduct of judges.

Mr Sithole: It was not necessarily misconduct of judges, it was an analogy, just like in the judicial system, if a judgment was not issued timeously the Judge President would then rein in the judge – why the judgment was taking long to be delivered. That was why the Public Protector would push for reports to be issued. Investigators would then be given deadlines for when they must finalise investigations. That is my recollection of that engagement.

Adv Mpofu: Again, in an effort to assist – the question I put was based on his experience in the space he operated in, which included the judicial space etc. The point I was making was that deadlines – there was a three month deadline, a six month deadline. Thereafter, it became misconduct. I was part of an attempt to impeach judges – because they had taken four years to issue a judgment – it was in this context.

Adv Bawa: The point I was trying to make was that one does not have service delivery without deadlines. Those service delivery deadlines existed prior to Adv Mkhwebane coming into Office. Are you aware of that?

Mr Sithole: Yes.

Adv Bawa: You mentioned that at the time when she came into Office – that there were 25 reviews of reports pending. Did you base that on the handover report prepared?

Mr Sithole: Yes.

Adv Bawa: I have no further questions for this witness.

Closing remarks: Witness Mr Sithole
Chairperson: Mr Sithole do you have any comments or issues to raise, having been with us. You did indicate earlier that you wanted to say something at the end. Now is the opportunity.

Adv Mpofu: I indicated to you in the morning, that in respect of the new material that has been brought forward in this ‘cross-examination’ or whatever you call it, I have a right to cross-examine. If you are disallowing that, you must do it verbally.

Chairperson: There has been no new evidence. Secondly, you did give yourself an invitation to cross-examine; that is going to be declined.

Mr Sithole: I understand that Adv van der Merwe must come in to deal with the finances and if I must come in, when it would be done?

Adv Bawa: You will recall that I gave the costing on some of the cases yesterday because we had not finalised the costing on all the cases and anticipated that, if there was something missing, it would be raised during Adv van der Merwe’s questioning. Subsequent to that, there was a further request from the Committee in refining the evidence, which may require a question from the Committee that Adv van der Merwe may not be able to clarify and may require Mr Sithole’s clarification on that. We are quite overtime – we will need to see where it ends – I can then revert to Mr Sithole. When those figures are finalised, I will provide them to Mr Sithole because he had provided input on the other input that had been finalised. He may or may not be required.

Mr Sithole: I just wanted to raise a concern about the manner in which the proceedings were conducted today in respect of my evidence. You will recall that I first came two weeks before to deal with evidence. I was then cross-examined by Adv Mpofu and then today was a pure cross-examination. I have no issues responding to questions put to me under cross-examination but the issues I want to raise are the following: on the evidence that was put to me, the evidence was put to me and flighted on the screen. Some of the evidence was sent to me from the bundles and I was asked on the evidence that the evidence leaders and the Committee had. Today, there was more than one question where I was asked to speak from my recollection. I was asked to answer questions on documents that I was not in possession of nor were the evidence leaders. Based on my comments, there was a comment that I am not giving truthful answers. That was a worrying concern for me and any witness coming before this Committee. The cross-examination related to my work directly. I would not have had a problem if I was the one undergoing this process, but you could see that there was evidence that related to emails about a firm not getting work. That was not the only firm that had not received work - why am I asked on matters that I was still dealing with as early as yesterday. I am not sure; I feel like I am being managed. There was a suggestion by the evidence leader that the audit outcome might have been cooked – that came from the admission that some of the invoices might have not complied. I gave an explanation on how the audit was done. Those invoices were not put on the screen for the Committee to see. I was requested to confirm things that I could not see, from my recollection. All this was done on the back of the fact that I was an officer of the court. I was happy to give evidence on the evidence that was available. You will not find another witness after me that will speak to matters that related to that time – some of the matters related to May 2017 up to 2019 but I was happy to respond to that. I gave the evidence leaders the option – I admitted wrongdoings that would not have ordinarily fallen on my plate. I tried by all means to avail myself to the evidence leaders in respect of these proceedings. To then come and be dealt with in the manner that I was – I am very disappointed. For future witnesses I would plead with you to be more in control of how witnesses are handled. I thank you Chair and Members.

Adv Mpofu: I am mostly covered. I wanted to emphasise two points – I can bring evidence to explain what cross-examination is. The legally trained people in attendance know exactly what cross-examination was. The witness has just referred to an example of new evidence – the email being referred to.

Adv Bawa: My job is to get to the truth and to put the information before the Committee. Whether the witness and Adv Mpofu want to categorise this as cross-examination – it is up to them. A number of the questions raised today did not come up by direct evidence nor did I have in my possession or knowledge of the statements. The witness raised the issue of a clean audit. The witness raised that he was equitably sharing out the briefs under cross-examination. The witness raised that to his knowledge Mr Ngobeni had given only two or three opinions. The questioning of the witness was done in that context. The witness was asked to provide the invoice to which that statement reflects – he said he did not have it. The point was that the witness had a wonderful recollection of certain events in 2019 in the context of Mr Ngobeni. It was not for the witness to answer if consultants were or were not engaged; it was for the Public Protector to put that before the Committee – all I did was ask the witness about his knowledge of those events. It was not based on whether there was documentation or not. The documentation that was put up, was the documentation that the witness provided or which we got out of the Public Protector’s Office in the first instance. There was other documentation. When the Public Protector is called as a witness, or chooses to come and give evidence – those questions would be put to the person who was meant to answer the Committee.

Chairperson: Thank you Adv Bawa. Mr Sithole, I want to thank you for availing yourself in assisting the Committee. You have spent considerable time with the Committee. Thank you for placing the issues placed in your final comment today. Members took note of those concerns. That will be taken into account in the Committee’s own deliberations.

Witness: Ms Nthoriseng Motsitsi
The witness, Ms Nthoriseng Motsitsi, was sworn in.

Evidence Leader Adv Ncumisa Mayosi: You are currently the Executive Manager for Complaints and Stakeholder Management (CSM) in the Office of the Public Protector. Is that right.

Ms Motsitsi: Yes, that’s right.

Adv Mayosi: You prepared an affidavit at the request of the evidence leaders for the assistance of this Committee in relation to information that you consider may be relevant to its work. Is that correct?

Ms Motsitsi: Yes, that’s correct.

Adv Mayosi: Do you stand by the contents of your affidavit?

Ms Motsitsi: Yes, I stand by the contents.

Adv Mayosi: Before your current position, you were in various positions at the Office, starting with being Senior Investigator between 1999 and 2004, is that right?

Ms Motsitsi: Yes.

Adv Mayosi: You were Chief Investigator after that?

Ms Motsitsi: Yes.

Adv Mayosi: At some point you left the PPSA to work at the Department of Home Affairs but you came back and re-joined the PPSA in your current position. Is that right?

Ms Motsitsi: That is right.

Adv Mayosi: You have held your current Executive Manager position since May 2017, correct?

Ms Motsitsi: Correct.

Adv Mayosi: In your affidavit, in the early sections, you set out what the Unit does. You say that it consists of five branches – including intake assessment, resolution, customer service, outreach and stakeholder management. You briefly explain what the in-take unit does – the unit that received complaints and processes them through a registry. It gives them a reference number and so on. Correct?

Ms Motsitsi: Correct.

Adv Mayosi: You also explain the assessment unit. This unit does a preliminary process of new complaints. It was a unit that was involved with the business of classifying the nature of complaints received. Correct?

Ms Motsitsi: Correct.

Adv Mayosi: It would then classify them as either early resolution, service delivery etc and allocate them to the correct unit within the PPSA.

Ms Motsitsi: Correct.

Adv Mayosi: In essence CSM was responsible for referring complainants to the bodies as well that might be better suited to handle or investigate complainants complaints. Right?

Ms Motsitsi: I need to correct something, CSM used to deal with matters after the matters were considered by the Assessment Committee and a determination was made. However in November 2020 that changed.

Adv Mayosi: CSM is responsible for referring complaints to other bodies as well. Sometimes complaints may be referred or rejected or subject to early resolution, which was what you describe in paragraph 10 as the event of a ‘closing letter.’ No formal report would be considered assigned – the matter would then be closed from your side at the PPSA. Correct?

Ms Motsitsi: Correct.

Adv Mayosi: You explain in paragraph 11 of your affidavit that you have a certain arrangement with the Department of Home Affairs about complaints that concern that department. Can you briefly explain to the Committee what that arrangement is.

Ms Motsitsi: Yes. In terms of the Public Protector mandate, the Public Protector must investigate, report and take legal action. However, we receive a number of complaints which we term early resolution matters – against the Department of Home Affairs for instance on issues of ID, passports or birth certificates. Those are early resolution matters that we think can be resolved. We compile a spreadsheet and put all those matters on the spreadsheet and refer it to Home Affairs. We meet once a month where we sit with Home Affairs and ensure that those matters are resolved. Once the matters are referred to Home Affairs, it is closed.

Adv Mayosi: You do also state that you have similar arrangements with other organs of state right?

Ms Motsitsi: Correct.

Adv Mayosi: You talk about an Assessment Committee, this considers the output of the assessors. What does this committee do?

Ms Motsitsi: The Assessment Unit has four assessors and the Assessment Manager. If we receive complaints – the intake unit will then refer the matters to the Assessment Unit, where they are allocated individual assessors. The assessors assess the matters individually within an assessment committee meeting which sits twice a week. Provinces sit about once a week. They look at the matters and classify whether it will be an early resolution or needs to be transferred to Home Affairs. In that meeting they also consider if a matter is older than two years. If older than two years, they determine if section 6(9) of the Public Protector Act is applicable. This considers jurisdiction in some instances.

Adv Mayosi: Although there is a general process of allocating new cases to investigators, there were instances where investigators were assigned new complaints or investigations by the Public Protector directly.

Ms Motsitsi: Correct.

Adv Mayosi: Customer Service was another unit within CSM. Correct?

Ms Motsitsi: Correct.

Adv Mayosi: They deal with, receive and process customer complaints such as complaints about the service the complainant was receiving from the PPSA. Right?

Ms Motsitsi: Correct.

Adv Mayosi: You also mention the Remedial Action Unit, which you say has been part of CSM since June 2020, it used to be located in the Private Office – what does Remedial Action do briefly?

Ms Motsitsi: After a formal report has been issued by the Public Protector, that report is then forwarded by the investigator to the Remedial Action unit. It consisted of one manager until June. They will monitor implementation of remedial action by following-up with the relevant departments.

Adv Mayosi: Community outreach is another unit in CSM – can you tell us what outreach is in the PPSA and what its objectives are.

Ms Motsitsi: One of the critical functions of the PPSA is to ensure that the services of the Public Protector are accessible. We have employed several mechanisms to ensure that we are accessible. We have outreach officers that conduct outreach clinics in provinces (two in each except Northern Cape). They raise awareness and bring complaints to the Office. There are also radio interviews on community radio stations.

Adv Mayosi: You’ve mentioned outreach clinics as one of the tools of outreach. In paragraph 24, you mention that there are specific targets linked to how many outreach clinics are supposed to be conducted. You say that the target was exceeded in the 2017/18 financial year but that the approach did not define clearly how to ensure maximum accessibility.

Ms Motsitsi: Correct.

Adv Mayosi: In paragraph 25, in your capacity as executive manager, you looked at the monthly and quarterly reports from provinces and formed the view, that the one size fits all approach was not ideal for the purposes of maximising funds because it did not take into account or recognise the different needs of the different provinces, correct?

Ms Motsitsi: Correct.

Adv Mayosi: You speak of a new strategy in paragraph 26 of the affidavit, that was developed in November 2017 for outreach. It was intended to be implemented over a period of three to five years. Tell the Committee about this strategy.

Ms Motsitsi: Before the 2018/19 financial year, the target was obviously the 756 clinics, however one could conduct those clinics everywhere – it was not structured. The target was conducting seven outreach clinics per month. 84 outreach clinics per province per annum. Based on that, the outreach officers only met with two people, seven people etc, but had 'achieved' their target of seven clinics per month. In terms of the target group, we wanted to get to the outlying areas – the marginalised. One needed a strategy or structure to get one there. I looked at each province such as Gauteng with three metros and two district municipalities. I compared all the provinces and populations. Even though the Northern Cape had a population of approximately 1.2 million people – the vastness of the province made it impossible for outreach officers to reach out to far flung areas. Initially the strategy was to have two outreach officers per province and one car per province. That vehicle was used for outreach, investigations and administration. If one wanted to achieve the target of seven clinics – you would land up going to closer areas just to achieve the targets. In my strategy we started with the district municipalities. Each province would visit a district municipality.

Adv Mayosi: The new strategy was implemented conservatively, correct?

Ms Motsitsi: Correct.

Adv Mayosi: When you came up with the new strategy in November 2017, were you aware of the financial constraints that you mention in paragraph 27.

Ms Motsitsi: I was not.

Adv Mayosi: When did you become aware of them?

Ms Motsitsi: In December 2017 – the then CEO resigned, I was asked by the Public Protector to act. As the Acting CEO, I started looking at the strategy, budgets and annual plans. In December, there were four months left of the financial year – I looked at whether we would be able to cater for the next four months etc.
Adv Mayosi: You became aware of the financial constraints when you assumed the position of Acting CEO?

Ms Motsitsi: That is right.

Adv Mayosi: You elaborate on these financial constraints in your affidavit and you do so with reference to a memorandum that was prepared by the then Acting Financial Officer, dated 7 February 2018. Right?

Ms Motsitsi: Right.
Adv Mayosi: At the time when you compiled the outreach strategy, you were not aware of the financial constraints that PPSA was facing at the time. You became aware of them when you became the Acting CEO in December 2017. Was the document routing form correct?

Ms Motsitsi: Yes.

Adv Mpofu: Are we still in free-wheeling and improvisation mode or is there a timeframe?

Chairperson: We are never in a free-wheeling mode.

Adv Mpofu: What is the timeframe?

Adv Mayosi: I estimate that I will need about three hours with this witness, but I will try finish before then.

Adv Mayosi: On page 423, can you read paragraph 3.1 of the memo.

Ms Motsitsi: ‘The PPSA was allocated R301 million for the 2017/18 financial year of which R217 million (72%) is allocated to employee costs. As at 31 January 2018, the total overspending on employees was R9 143 914. The overspending on employee costs was mainly due to the implementation of OSD, notch progression and merit bonuses for the prior two years.’

Adv Mayosi: He goes on to explain that the total cost of employment had grown by 60% since the 2014/15 financial year whereas annual budget growth allocated to the PPSA had been less than 10% for the same period. There had therefore been a continued mismatch in terms of the budget allocated to its core activities. Can you read paragraph 3.2.

Ms Motsitsi: ‘In addition, legal costs have spiralled out of control with a resultant current overspending of R13 345 052. This is in response to cases that have been taken on review and cases relating to labour disputes which were settled during the course of the current financial year.’

Adv Mayosi: 3.3 As well please.

Ms Motsitsi: ‘Information and Communication Technology (ICT) capital projects to the value of R10 325 123 were completed during the current financial year. This related to the purchase of 225 desktop computers, 109 laptop computers and new server equipment.'

Adv Mayosi: As a result of this overspending other key capital planned projects could not be carried out, instead the institution had exhausted its current budget and overspent on its budget, seen in paragraph 3.4. In paragraph 3.5 it stated that the institution was unable to meet all its current financial obligations and an amount of R14 million is immediately required to settle all liabilities due to external parties by the end of the current financial year. In paragraph 5.1, the Acting CFO then referred to the fact that senior management, under your leadership at the time, had met twice to discuss the budget constraints. Right?

Ms Motsitsi: Correct.

Adv Mayosi: The two meetings he is referring to, are those described in paragraph 5.2 and 5.3?

Ms Motsitsi: Correct.

Adv Mayosi: The Acting CFO addressed a further memo on 22 February 2018, this time to the National Treasury, correct?

Ms Motsitsi: Correct.

Adv Mayosi: In paragraph 3, the Acting CFO set out measures to be implemented to curb the expenditure. That included the suspension of the procurement plan for the 2017/18 financial year.

Ms Motsitsi: ‘It included the suspension of travel, freezing all recruitment, non-renewal of employment contracts and cancellation of all over-time.

Adv Mayosi: We see that the financial constraints had a direct impact on the outreach programme, correct?

Ms Motsitsi: Correct.

Adv Mayosi: Do you recall the rest of the memo in your position as Acting CEO?

Ms Motsitsi: Yes.

Adv Mayosi: Let's go back to the affidavit. Can you tell the Committee about the targets and actual achievements in the PPSA’s new strategy, given the financial constraints.

Ms Motsitsi: The targets for outreach clinics were in line with the district model. In 2018/19 the targets were reduced to 207 outreach clinics – looking at the districts and metros per province. The target was over-achieved – as it was still more than the year before.

Adv Mayosi: In 2020/21 COVID-19 happened – what impact did that have on outreach?

Ms Motsitsi: Due to the restrictions, the outreach officers could not go out and conduct outreach clinics, nor have face to face meetings with complainants or communities. That was when we started with webinars and single cast transmissions.

Adv Mayosi: You talk about your stint as Acting CEO after Mr Dlamini left. You acted for about three months, December 2017 to March 2018.

Ms Motsitsi: Correct.

Adv Mayosi: You say you accepted the request on condition that you would not receive an acting allowance – as you regarded it as an opportunity to learn, correct?

Ms Motsitsi: Correct.

Adv Mayosi: You refer in paragraph 39 to some of the stresses you found in that position, particularly the financial position. Correct?

Ms Motsitsi: Correct.

Adv Mayosi: You now realised that the PPSA might not be able to pay salaries from February 2018 and staff livelihoods would be jeopardised. Correct?

Ms Motsitsi: Correct.

Adv Mayosi: The second issue you give as an example was about Ms Cleo Mosana – this issue stressed you because there was an expectation that millions of Rands could be spent to remove her from the Office – when the Office was already facing a dire financial situation. Right?

Ms Motsitsi: Correct.

Adv Mayosi: You address the issue of Ms Cleo Mosana later in the affidavit, but maybe this is an appropriate time to address it. The dispute happened in January 2018, when you were the Acting CEO, right?

Ms Motsitsi: Correct.

Adv Mayosi: Can you tell the Committee how you found out about the dispute and what your role was in managing the matter

Ms Motsitsi: I had taken one day leave. There was a budget meeting with the CFO and other managers – I came to the Office at about 11am. When I got there, I was invited to the Public Protector’s office with the Acting Chief of Staff and the Senior Manager of Legal Services and Senior Manager of HR. They informed me informally in the foyer that something had happened. They were busy negotiating a separation agreement with Ms Mosana by the time I got there. I understand they had offered her R1 million so that they could part ways. She rejected that offer. She rejected R3 million. They were trying negotiate a further amount. She was left with 5+ years in her contract. Looking at the amounts being proposed – it was completely unaffordable to pay any settlement. When I went into the Public Protector’s office to understand the issue.

Adv Mayosi: You proposed other viable options to resolve the issue.

Ms Motsitsi: Yes.

Adv Mayosi: One of these was to place Ms Mosana in another position within the organisation, correct?

Ms Motsitsi: Yes.

Adv Mayosi: Can you tell the Committee how that was received by the Public Protector and Ms Mosana and how the matter was resolved if at all.

Ms Motsitsi: The matter was between Ms Mosana and the Public Protector in her personal capacity not the Public Protector’s Office. Investigations were suffering in terms of capacity, it was suggested that she could be moved to that post. That formal submission was approved.

Adv Mayosi: Did you get buy-in from Ms Mosana?

Ms Motsitsi: No, I did not get an opportunity to engage Ms Mosana on this. I wanted the proposal to be approved first before engaging her. It was approved.

Adv Mayosi: On the date of the consultation you were about to engage Mosana on the financial status of the Office.

Ms Motsitsi: I wanted her to understand how I reached the decision.

Adv Mayosi: What happened on the date of the consultation?

Ms Motsitsi: The Senior Manager of HR invited Ms Mosana – I got a call from the Public Protector that I had to leave the meeting. That was when she said that she heard that Ms Mosana was in my office. I explained that I was consulting her on what I had proposed to get her views and to explain how we got to that. Unfortunately I did not get that chance.

Adv Mayosi: Why did you not get that chance?

Ms Motsitsi: The Public Protector said there was a letter that I had to give Ms Mosana and she must go and consider that offer at home.

Adv Mayosi: In paragraph 29 you state that as a result of that, Ms Mosana was transferred to your branch, CSM, without consultation, and she continued to earn the same salary. She took the PPSA to the Commission for Conciliation, Mediation and Arbitration (CCMA). Correct?

Ms Motsitsi: Correct.

Adv Mayosi: Could you tell the Committee how the matter was resolved.

Ms Motsitsi: I had suggested that she refer the matter to the CCMA to pay her out if we were in the wrong. She referred the matter to the CCMA. I was one of the witnesses to explain the position I took. The HR manager was also a witness. Ms Mosana won the case.

Adv Mayosi: She was awarded R520 000. She then came back into the Office and then resigned from her position.

Ms Motsitsi: Yes.

Adv Mayosi: At what stage is the issue between the PPSA and Ms Mosana now?

Ms Motsitsi: She won the case and was ready to work at CSM. Unfortunately she heard that PPSA was going to apply for a review of the CCMA determination and she gave a 24 hour resignation. Unfortunately, I was not around, I was outside the province at the time. On 2 or 3 May she came to see me to tell me she had submitted a 24 hour resignation to HR. I could not let her go like that. I went to inform the new COO about her resignation. She was no longer with the PPSA.

Adv Mayosi: There were no adequate governance structures within the organisation to sit and strategise with the other managers, correct?

Ms Motsitsi: Correct.

Adv Mayosi: As Acting CEO, you were responsible for administrative affairs right?

Ms Motsitsi: Yes.

Adv Mayosi: You also had a responsibility to play a role in the institution's investigation work, bearing in mind there was a backlog, correct?

Ms Motsitsi: Correct.

Adv Mayosi: How did you fit in all of these responsibilities?

Ms Motsitsi: There were no governance structures, I needed an exco that was chaired by the accounting officer and talk about the update and review of policies to establish other governance structures. I would focus on administration during the day. There were several meetings held by the Public Protector and I would attend those meetings. All the reports would be coming to me from the executive managers, once everyone had left from 5pm to 10pm I would look at the reports submitted.

Adv Mayosi: This was another stressor – extremely late working hours in order to discharge these functions.

Ms Motsitsi: Yes.

Adv Mayosi: You felt that there was no real space for a CEO to function as she should. Should I take it that the role of Acting CEO was not what you expected then?

Ms Motsitsi: It was not what I expected, given the financial situation and lack of governance structures.

Adv Mpofu: We have just received the judgment from the Western Cape High Court that the suspension of the Public Protector has been set aside. We would just like to deal with that logistically for a few minutes.

Chairperson: We will take a five minute break.


Adv Mayosi: You brought your concerns to the attention of the Public Protector – but no heed was given to the concerns.

Ms Motsitsi: Correct.

Adv Mayosi: You then went on leave in March 2018 to look after your health. When you came back in May, you asked to be relieved of your acting responsibilities. Correct?

Ms Motsitsi: Right.

Adv Mayosi: You then move on in the affidavit to talk about your role as Acting COO, sometime in the middle of 2018, the Public Protector asked you to take on the role of Acting COO. Again you agreed, and made it a condition that you not receive an acting allowance. Correct?

Ms Motsitsi: Correct.

Adv Mayosi: This time it was because you knew that the PPSA was in financial difficulties and also that the COO position needed to be funded before it could be filled.

Ms Motsitsi: Correct.

Adv Mayosi: In this section of your affidavit you deal with rushed reports, audi letters and time constraints. Let's start with the issue of the rushed reports. You say in paragraph 44 that the focus at the time was to bring investigations to an end and to ensure that reports were issued speedily.

Ms Motsitsi: Correct.

Adv Mayosi: You refer to the management meetings that you attended where the focus was on what product would be delivered by when rather than analysing the substance of the complaints. Right?

Ms Motsitsi: Correct.

Adv Mayosi: You also talk about the inordinate amount of time you spent in these meetings accounting for deadlines, when time should have been spent on improving reports.

Ms Motsitsi: Correct.

Adv Mayosi: This new focus at management meetings on what product would be delivered by when and chasing deadlines – what impact did these factors have on the manner in which reports were produced.

Ms Motsitsi: It compromised the quality of reports. Investigators were working under pressure. As Acting COO I was working under pressure, because I would get the reports on the date that the reports were due to the Public Protector. One always got reports of low quality.

Adv Mayosi: You mention the PEU Report, this was the report of which Ms Mogaladi was the Executive Manager.

Ms Motsitsi: Correct.

Adv Mayosi: She has given some views on this matter. We will focus on your views and how you experienced it. You refer to the fact that on the 6 November, Ms Mogaladi submitted a draft section 7(9) notice that she told you in the covering email she was not happy with and that she was still working on. Correct?

Ms Motsitsi: Correct.

Adv Mayosi: You then state that the Public Protector was insistent that the notice be provided to her. You suggested to Ms Mogaladi that she include the ‘draft’ watermark on her section 7(9), to indicate that it was a work in progress. The Public Protector was not happy with this.

Ms Motsitsi: The Public Protector was not happy with this at all.

Adv Mayosi: In Ms Mogaladi’s evidence she put up the letter that you included yourself as an annexure. This was the email when she was explaining the pressures and challenges in the investigation. This included the volume of evidence (40 lever arch files). She also had affidavits and the court proceedings to look at.

Ms Motsitsi: Correct.

Adv Mayosi: The Public Protector did not give Ms Mogaladi the extension she requested.

Ms Motsitsi: No, the extension was not granted.

Adv Mayosi: She demanded the section 7(9) by end of business.

Ms Motsitsi: Correct.

Adv Mayosi: The Public Protector then instructed Mr Mahlangu to serve final written warnings to you both.

Ms Motsitsi: Correct.

Adv Mayosi: You do deal with Mr Mahlangu’s response to the Public Protector’s instruction. On page 2403, paragraphs 60, 61 and 62. You say that on 20 November, Mr Mahlangu complied with the Public Protector’s instruction and issued you with an audi letter. Was this the audi letter that followed the Public Protector’s instruction?

Ms Motsitsi: Yes.

Adv Mayosi: You say you responded to this. What did you make of this audi letter?

Ms Motsitsi: When I was asked to issue an audi letter to Ms Mogaladi, it meant that she had to hear Ms Mogaladi’s side of the story regarding failure to submit. I sent her the audi notice to provide an explanation, she provided an explanation which made sense and was reasonable. Unfortunately, I was issued with an audi letter for accepting her explanation.

Adv Mayosi: The fact that you were issued with an audi for listening to an employee’s views – this was tantamount to victimisation to you.

Ms Motsitsi: Most definitely.

Adv Mayosi: Let's go to your response to the audi. Can you read 2.1 and 2.2 for the record please.

Ms Motsitsi: ‘At the time the explanation was provided by Ms Mogaladi, the section 7(9) notice was incomplete and not ready for submission to the Public Protector for approval. Had I accepted and submitted the draft section 7(9) notice to the Public Protector in its state, it would have been tantamount to dereliction of duty and I may have been required to provide an explanation for submission of an incomplete, improper and/or misleading notice for Public Protector’s approval.’ Either way I would have got an audi letter.

Adv Mayosi: You engaged in correspondence with Ms Mogaladi about the matter. These were the emails that were included in paragraph 54 and 55. You supported Ms Mogaladi in that she needed more time in the investigation. You suggested she provide a memo to the Public Protector explaining the issues to her.

Ms Motsitsi: Correct.

Adv Mayosi: Ms Mogaladi then wrote the email explaining the factors that contributed to the delay and that she did not mean to be disrespectful of the executive authority.

Ms Motsitsi: Correct.

Adv Mayosi: In your response to her, in the second paragraph – you said you could not compel her to issue an unlawful section 7(9) notice. 'The Public Protector must issue factually correct notices of high quality. It has resulted in me getting warnings. I am between a rock and a hard place.’ What did you mean by this?

Ms Motsitsi: If I do not push for her to submit the section 7(9) notice I would receive a warning, if we submit a factually incorrect report and accept reasons – I would be issued with an audi.

Adv Mayosi: Despite genuine commitment to ensuring a thorough investigation, the Public Protector was not interested in considering investigation-related reasons for delays.

Ms Motsitsi: Correct.

Adv Mayosi: How was the matter finally resolved? When was it finally submitted – the section 7(9).

Ms Motsitsi: It was finally submitted for the Public Protector’s approval.

Adv Mayosi: In the next section of the affidavit you deal with the issue of audi letters.

Ms Motsitsi: Yes.

Adv Mayosi: The issuing and purpose of audi letters, and how recipients of audi letters view them has come up a lot in these proceedings so far. Do you agree with the principle that people in general are entitled to be given a right to be heard.

Ms Motsitsi: Yes I agree.

Adv Mayosi: Are audi letters in and of themselves a problem?

Ms Motsitsi: An audi letter is meant to allow for one to ‘listen to the other side.’ They are a noble concept and a useful tool that a manager can issue to understand the circumstances of the employee who might not be performing.

Adv Mayosi: Is this the way audi letters were used at the PPSA?

Ms Motsitsi: No. Throughout my acting stints and current position, an audi to me, means listen to the other side. However, at PPSA it means now I am issuing another disciplinary process at you for failing to comply with an instruction.

Adv Mayosi: Is this what you meant by it being an oppressive environment?

Ms Motsitsi: Yes.

Adv Mayosi: Did you issue an audi letter to Ms [Lesedi] Sekele?

Ms Motsitsi: No.

Adv Mayosi: Why did you not?

Ms Motsitsi: From the email I read, she had already been issued with one. It was the prerogative of a manager to issue out audi letters to people who report to him or her. In this case, Ms Sekele was not reporting to me. A warning was issued to her, I do not know the explanation provided. It did not make sense to issue an audi letter on a matter I am not clued up on.

Adv Mayosi: You mention an instruction on the 4 June from Mr Mahlangu to the HR Senior Manager to issue warnings to a number of employees. You mention this as one of the examples of what you describe as the misconception of the role of audi letters. The instruction was to seven employees. He was not giving them an opportunity to explain themselves.

Ms Motsitsi: No.

Adv Mayosi: You responded to this, please summarise it.

Ms Motsitsi: Mr Mahlangu was one month into the post as CEO. He was new, and was already sending out emails that warnings be issued to those seven individuals. I advised that audi letters would first need to be issued by the direct line managers and proper reasons and findings must be provided. I named some of the cases and explained them. Some of the cases, disciplinary or mediation processes, were already underway. It would be double jeopardy for those people. I wanted to clarify the use of audi letters in the institution – it could not come from above. It needed to be the direct line manager.

Adv Mayosi: Mr Tyelela [HR Senior Manager] later gave an instruction that you had to issue an audi letter. Correct?

Ms Motsitsi: Correct.

Adv Mayosi: Your evidence is that you did not do so, and you have already provided reasons why you did not do so. The role of Acting COO was not what you expected either.

Ms Motsitsi: No, it was not.

Adv Mayosi: You felt you were required to be more of a ‘whip.’ What did you mean by that?

Ms Motsitsi: You had to demand investigators to submit their reports. If they did not support, one had to issue an audi. One had to demand that they complied to the deadlines they set for themselves.

Adv Mayosi: The other issue was time constraints and there being no time to review reports. You mention instances where you were unsatisfied with reports given to you and you had them returned, correct?

Ms Motsitsi: Correct.

Adv Mayosi: You say you required reports to be submitted to you a week or two before they were required to be submitted to the Public Protector, to give you sufficient time to engage in a genuine quality assurance function.

Ms Motsitsi: Yes.

Adv Mayosi: Did this help.

Ms Motsitsi: They were never submitted a week or two before, they were submitted on the very day that the report was due to her.

Adv Mayosi: You eventually asked to step down from the position of Acting COO. Could you briefly give reasons why you requested to step down.

Ms Motsitsi: As COO, I have to sign off the report. By so doing it was proof that the report was correct, and all relevant policies were considered and the right action was being proposed. You cannot do that when you receive a report on the day and only have time to proof read.

Adv Mayosi: You also reflect on the unreasonable deadlines, low staff morale, toxicity and so on.

Ms Motsitsi: Yes, the environment was stressed and toxic.

Adv Mayosi: After you stepped down, Ms Baloyi was appointed permanently from February 2019. Mr [Charles] Mohalaba was the COO in 2020, correct?

Ms Motsitsi: Correct.

Adv Mayosi: In 2021, Ms [Lethabo] Mamabolo was appointed correct?

Ms Motsitsi: Correct.

Adv Mayosi: Ms [Nelisiwe] Nkabinde was Acting COO in 2022, correct?

Ms Motsitsi: Correct.

Adv Mayosi: You speak about the ‘culture of fear.’ Please elaborate on why the meetings became gatherings of fear.

Ms Motsitsi: You prepare your task register – you got updates about individual reports, and you find out that the investigators did not meet the deadlines. They then motivated their explanations (such as attending meetings, receiving more information etc). They would then request that the deadlines be extended. Those reasons were never acceptable to the Public Protector.

Adv Mayosi: Do you not set your own deadlines?

Ms Motsitsi: You ask for the deadline or propose one, but it is never accepted. For example you can ask to submit by 30 May and the Public Protector would approve 15 May.

Adv Mayosi: An example you outline was the deadline for the Department of Transport report. Initially the report was due to be finalised on 31 March 2018, which was plainly unreasonable and impractical.

Ms Motsitsi: For example, the Department of Transport might request an extension to respond. I would also need time to review and send it back. There were dependencies working with other stakeholders.

Adv Mayosi: You say that you have no difficulty with deadlines and you agree with the Public Protector that deadlines are necessary to reduce the backlog

Ms Motsitsi: That’s right.

Adv Mayosi: What is your difficulty with deadlines then?

Ms Motsitsi: They must take into account the circumstances that would lead to the deadline not being met; take into account dependencies. You need to be flexible as things unfolded.

Adv Mayosi: You were issued with another audi in 2018. You do not have a copy of that letter. It related to non-compliance with the Public Protector’s instructions, correct?

Ms Motsitsi: Correct. In this case, the compliance unit was never reporting to the COO or CSM; it was reporting to the CEO. I was given instruction to follow-up on a certain remedial action. I followed-up and wrote to the manager to provide the information and to comply with the Public Protector’s instruction. I followed-up and later received an audi from Mr Mahlangu that I did not execute the instruction as given by the Public Protector. I had to provide proof of the following-up.

Adv Mayosi: You say that the PPSA is the harshest environment you have ever worked in. How long have you been in the public service?

Ms Motsitsi: 28 years. For 18 years as a senior manager, including executive manager.

Adv Mayosi: In the next section of your affidavit you talk about the issue of the draft watermark. You say that this was an initiative you started. The manner in which the Public Protector responded to this made you feel victimised, correct?

Ms Motsitsi: Correct.

Adv Mayosi: Briefly tell the Committee about this.

Ms Motsitsi: There were three reports that were long overdue. We had a strategic planning session where the senior managers, provincial representatives, a motivational speaker from Gift of the Givers and support staff. To my surprise, there were copies made of those draft reports and they were circulated – showing everyone that this was the kind of reports that she got when she asked for final work to be delivered. I still do not see anything wrong with doing that, as I did not want to sign off on an incomplete report. She went on and on lambasting me. Whatever happened that day, I was humiliated. When you could not deliver that was what you had to go through.

Adv Mayosi: The next section you describe working abnormally long hours at the PPSA. Do you accept that as an executive manager you’re at a fairly senior level and the expectation is in fact that you work outside of the set working hours.

Ms Motsitsi: That’s true, yes.

Adv Mayosi: You still say that the hours at the PPSA were abnormally long.

Ms Motsitsi: Yes. I have been in various positions with multiple functions for the different roles. We met at night, worked through to the early hours of the morning, met on holidays etc. I was responsible for many of the functions across the five units.

Adv Mayosi: You say that the Dashboard meetings became more expansive. The scope of the meetings increased to cover not just backlog cases but also all active cases.

Ms Motsitsi: Correct.

Adv Mayosi: You also touch on the issue of taking leave. It was not encouraged. When the Public Protector came back in January from the festive season break she would state that clearing the backlog should be the priority and leave should not be taken. Correct?

Ms Motsitsi: Correct.

Adv Mayosi: You had your own personal experience about how you had accumulated so much leave that you were on the verge of losing your leave days.

Ms Motsitsi: Yes, between January and March each year we were encouraged to address the backlog and prevented from taking leave. Many people took leave during December, I always planned to take leave when everyone came back so that there was someone at work during December. In January when I was supposed to take leave, I was informed by the Acting COO, that the Public Protector said no one could take leave. In February and March I had to go on the roadshows. After the roadshows I was exhausted and really had to take leave and I had accumulated leave days; my health issues started again. I applied for leave and the Acting COO told me I could not take leave because there was another Dashboard in April. I accepted that. After the Dashboard I applied for leave. I had also submitted my application for early retirement, as the doctor had told me that my health had taken a dive. The leave was eventually approved; I would have had to forfeit that if the early retirement got approved.

Adv Mayosi: This was not the first instance when annual leave was refused. You had to refuse leave twice for operational reasons, as a general manager. You applied for early retirement, but you are still employed at the PPSA.

Ms Motsitsi: In April I submitted my application for early retirement. If you take early retirement at 55 there are penalties you have to pay, you can apply that PPSA absorb those penalties. The penalties amounted to R1.2 million. My manager advised that because it was on medical grounds, I should apply for early retirement on medical grounds. My health has started improving.

Adv Mayosi: You mention an incident in paragraph 106 of your affidavit where one night you found Ms Mogaladi crying at her desk typing a report. She gave evidence to the Committee where she lost a close relative. The Public Protector was initially sympathetic but soon after the funeral the Public Protector demanded reports and told her that if she did not produce those reports, consequences would follow. To your recollection, are you talking about the same incident.

Ms Motsitsi: Yes.

Adv Mayosi: You called the Public Protector then and told her about the situation.

Ms Motsitsi: Yes, but she insisted the report be submitted that night. The funeral was going to be held on the Saturday and we were in the Office on the Thursday evening very late. In that state I did not think she would produce a meaningful report. That was when I called the Public Protector and said that she was in a state and I did not think she would be able to submit the report that night. I asked that she be allowed to take leave and be with her family. On the Monday she would come in and finalise the report. I took responsibility that the report would be submitted.

Adv Mayosi: The Public Protector agreed to that. Notwithstanding the classification process, there were cases allocated directly by the Public Protector on receipt of a complaint.

Ms Motsitsi: Yes.

Adv Mayosi: One such case was when Democracy in Action lodged a complaint about the Hawks confiscation of a family’s gadgets.

Ms Motsitsi: Correct.

Adv Mayosi: Ms Mogaladi was put through disciplinary proceedings relating to the FSCA Report, are you aware of that.

Ms Motsitsi: Yes.

Adv Mayosi: The Public Protector directed that you should give evidence against Ms Mogaladi in the matter, right?

Ms Motsitsi: Yes.

Adv Mayosi: In paragraph 115, you refer to the audi letter in respect of Ms Mogaladi.

Ms Motsitsi: One got an audi letter, one explained and the matter was then left hanging.

Adv Mayosi: Why do you mention Ms Baloyi in the section of unhealthy working environment? What points are you wanting to illustrate

Ms Motsitsi: When Ms Baloyi joined the PPSA, there was a significant backlog and she worked very hard. She worked very long hours. There was a stage when her child was in hospital, she would still leave work at around 8pm/10pm and then go visit her child in the hospital. Sometimes she would leave there at about 4am. The next morning she would be sitting for a media briefing. She did that quality assurance herself. One day I found her very broken in her office. If she did not issue audi letters, she was on probation and would lose her job. I said to her that she must issue those audi letters so that we could explain ourselves.

Adv Mayosi: You also say that she was given unreasonable deadlines.

Ms Motsitsi: Yes.

Adv Mayosi: You say that the Vrede investigation did not fall under your responsibilities?

Ms Motsitsi: Correct.

Adv Mayosi: You encountered it in Think Tank discussions in 2017, correct?

Ms Motsitsi: Yes.

Adv Mayosi: You were not party to the finalisation of the report.

Ms Motsitsi: Correct.

Adv Mayosi: You talk about media enquiries that the PPSA received in January 2018, right?

Ms Motsitsi: Yes.

Adv Mayosi: After which Mr Ndou was required to prepare a memo to the Public Protector about the status of the investigation, correct?

Ms Motsitsi: Yes.

Adv Mayosi: You told Mr Ndou that the Public Protector wanted the report finalised urgently, correct?

Ms Motsitsi: Correct.

Adv Mayosi: Mr Ndou submitted the report on 7 February 2018. There were aspects of the report that the Public Protector was not happy with, right?

Ms Motsitsi: Correct.

Adv Mayosi: She then directed Mr Ndou and his team to attend the meeting the following day to work through the report. You confirmed that Mr Ndou was not present at the meeting because he was on leave. The Public Protector wanted you to institute disciplinary action against him because of the absence, correct?

Ms Motsitsi: Yes.

Adv Mayosi: Did you do that?

Ms Motsitsi: Yes, I issued an audi to him.

Adv Mayosi: Then what happened?

Ms Motsitsi: He explained that he had applied for leave and it was approved by myself. He said he was not aware that he was required on that day. I accepted his reasons.

Adv Mayosi: Mr Nemasisi then circulated the Vrede Report on the evening of 7 February 2018 with his final comment on it. He listed various concerns, which he said could be addressed so that the final report could be issued on the 27 February.

Ms Motsitsi: Yes.

Adv Mayosi: Do you know if his concerns were addressed in the final report or not?

Ms Motsitsi: I expected the report from Mr Ndou and he was not submitting it. I would not have accepted a report from Mr Nemasisi because he does not report to me. Mr Ndou never submitted the report, so I did not consider… I read through Mr Nemasisi’s inputs and waited for the report from Mr Ndou.

Adv Mayosi: Do you know why the Vrede Report had to go out in that particular week.

Ms Motsitsi: No, I only know that it was urgent to be issued.

Adv Mayosi: I do not have any other questions for this witness.

Cross-examination by Public Protector's legal team
Adv Mpofu: I need to make a proposal, we may need more than three hours. Would you indulge us, I could just deal with some of the high level issues and then there would hopefully be time when we meet with this witness again. I am not going to be able to do any justice to the cross-examination under the current circumstances.

You came back to the PPSA in 2017, it was your second time around?

Ms Motsitsi: Correct

Adv Mpofu: When you came back, you came from Home Affairs?

Ms Motsitsi: Yes.

Adv Mpofu: You were at chief director level. As soon as you came back you were at executive manager level. Correct?
Ms Motsitsi: Correct.

Adv Mpofu: That was almost DDG level.

Ms Motsitsi: Correct.

Adv Mpofu: You are in the same category as Ms Mogaladi, you earn R1.6 million per annum.

Ms Motsitsi: Correct.

Adv Mpofu: The Public Protector encouraged you to apply to come back, correct?

Ms Motsitsi: Correct.

Adv Mpofu: The Public Protector has been good to you, correct?

Ms Motsitsi: Correct.

Adv Mpofu: You were having problems at Home Affairs when she suggested you apply to come back. Correct?

Ms Motsitsi: What problems?

Adv Mpofu: I do not know. Did you not have any problems with the leadership at Home Affairs?

Ms Motsitsi: Not at all.

Adv Mpofu: Nothing at all?

Ms Motsitsi: Not at all, that was the best DG I have ever served. I learnt a lot under him.

Adv Mpofu: You were chief director, that would mean that above you would be DDG and DG. No problems even at the DDG level?

Ms Motsitsi: No problems at the DDG level.

Adv Mpofu: The evidence of the Public Protector would be that you and her had shared some problems. You were transferred to Limpopo at some stage, correct?

Ms Motsitsi: Yes, I volunteered. Home Affairs was operating in a zone system. One chief director was responsible for seven provinces. There was no female provincial manager then. In 2010, I was asked if I would join, they were piloting bringing back the provincial managers and I was asked if I was willing to be the subject of that pilot. The nearest province was Limpopo. I travelled every Monday and came back to Pretoria every Friday.

Adv Mpofu: Were there any push factors or pull factors from the Public Protector side. What made you make the move?

Ms Motsitsi: I kept my home, my family did not want to move with me to Limpopo. In 2011 the post of provincial manager was advertised, obviously I wanted to relocate – but I came back and forth. In Limpopo I was responsible for about 103 offices. Beitbridge was amongst those offices, and ports of entry. I was involved in managing a refugee centre. It was a vibrant environment.

Adv Mpofu: Was the relocation one of the push factors.

Ms Motsitsi: This was not the first time the post of executive manager was advertised. It was advertised during Adv Madonsela’s time and I had applied then. When it was advertised a second time, I applied again. The travelling part at Home Affairs was a bit of a challenge, but I had the rewards in job satisfaction. I enjoyed working at Home Affairs.

Adv Mpofu: Why did you leave then?

Ms Motsitsi: When my son went to university, I came back home.

Adv Mpofu: That’s what I am talking about, that was one of the pull factors – that you would be based in Gauteng. The Public Protector job had a higher salary? But we have already established that.

Ms Motsitsi: No, we did not establish that. It is still at level 14. I was at level 14 at Home Affairs, I am still occupying a level 14 position. For me it was moving from one chief director post to another.

Adv Mpofu: Right now it is at a higher level.

Ms Motsitsi: It is higher level 14.

Adv Mpofu: Is it higher than what you were at Home Affairs.

Ms Motsitsi: I was at level 14 at Home Affairs; I am still at level 14 at the Public Protector’s Office.

Adv Mpofu: The remuneration is the same?

Ms Motsitsi: The Public Protector position is higher.

Adv Mpofu: Your evidence is that there were no issues at Home Affairs, besides the valid reasons you have given us.

Ms Motsitsi: Audi letters would be issued relating to the asset registers, but one would be given notice of what was needed. It was an audi letter in the sense that he gave us the opportunity to go and correct the asset managers. That was how I became familiar with audi letters. It was not a hostile process. It was a process to make sure that things were in order.

Adv Mpofu: I asked a simple question. Were you issued with audi letters at Home Affairs.

Ms Motsitsi: Yes for asset registers.

Adv Mpofu: How many audi letters were you issued with at Home Affairs?

Ms Motsitsi: Two audi letters.

Adv Mpofu: Despite that, you still think that the DG was the best employer you ever worked for?

Ms Motsitsi: Yes.

Adv Mpofu: The audi letters issued at Home Affairs would obviously have been responded to in writing in the same way as in the Public Protector’s Office. Correct?

Ms Motsitsi: Correct.

Adv Mpofu: Your responses would be in the form of an explanation. It is not in itself a disciplinary action.

Ms Motsitsi: If you look at the end of the letter, it says you must respond within five days. Failing that, disciplinary action would be taken against you. That was the only thing contained in the audi letter that stated that a serious step would be taken.

Adv Mpofu: An audi letter is not in itself disciplinary action.

Ms Motsitsi: Correct.

Adv Mpofu: Let's assume you ignore it, or you do not give a satisfactory answer, it may lead to disciplinary action, you accept that?

Ms Motsitsi: Correct, you must put closure.

Adv Mpofu: We will come back to the audi letters you received from Home Affairs compared to the ones you received from the Public Protector. You refused to take steps against Ms Mogaladi?

Ms Motsitsi: You heard that wrong.

Adv Mpofu: It is fine if I heard it wrong. One of the things was that you did not understand why the Financial Services (FSCA) matter ended with Ms Mogaladi.

Ms Motsitsi: I was the one called in by the Public Protector. She wanted a recommendation from me. Those files and boxes were handed over to the Mr Madiba and Adv van Eeden, whom I recommended. The Public Protector informed them that the case had been given to them to investigate.

Adv Mpofu: Somewhere in your statement you said you did not know how it landed in Ms Mogaladi’s domain, correct?

Ms Motsitsi: Correct.

Adv Mpofu: That means that you were not aware that on 1 November, Ms Mogaladi was given the responsibility to be in charge of that unit where Ms van Eeden and Mr Madiba were working.

Ms Motsitsi: I explained that when Adv Fourie was transferred to the Eastern Cape, that unit was left without an executive manager. They would report to me. Any report would have had to go through the COO from them before going to the Public Protector. Those reports, from Mr Madiba regarding FSCA would come from Mr Madiba and Ms van Eeden, not from Ms Mogaladi. Ms Mogaladi took over sometime after I stepped down as Acting COO.

Adv Mpofu: One of the issues I will raise with you when we meet again, is your tendency to try and be a spokesperson for other people. Let me explain what I mean by that. Ms Mogaladi never had any problem when she was here about the fact the FSCA file was on her lap, because she obviously understood how that came about. You seem to have a problem. There is something strange about that. If she was being unfairly saddled with that file then she would have told the Committee not you. Do you understand?

Ms Motsitsi: I don’t understand. I never said she had any problem. I said the files of the FSCA matter was handed over to Mr Madiba and Ms van Eeden, when she took over on 1 November – obviously all the matters handled by Mr Madiba, Ms van Eeden and the others below her, would fall within Ms Mogaladi’s management authority.

Adv Mpofu: Let's go back to the issue of audis. You said in paragraph 115, remember your theory now is that the audi letters… at some stage you became aware that they were being used in disciplinary proceedings?

Ms Motsitsi: Yes.

Adv Mpofu: That awareness on your part came from the fact there was reference by the Public Protector of an audi letter to Ms Mogaladi. Where is there any reference to an audi letter to Ms Mogaladi?

Ms Motsitsi referred to the email from Mr Alfred Mhlongo dated 22 January 2020.

Ms Motsitsi: ‘They indicated that it would have to be the COO, CEO or PP who can testify against the EM [Executive Manager] particularly.’

Adv Mpofu: I asked for reference of an audi letter to Ms Mogaladi by the Public Protector. Do you accept that nothing in this email refers to an audi letter to Ms Mogaladi, yes or no?

Ms Motsitsi: Who can testify about insubordination.

Adv Mpofu: Do you agree with me that there is no reference on that page to an audi letter to Ms Mogaladi. There might be an explanation, which I will give you an opportunity to explain. You need to answer my questions.

Ms Motsitsi: I am the only one who can testify on insubordination. That was the person I served an audi to and she gave me an explanation.

Adv Mpofu: Do you accept that in the letters you wanted to read in full, there was no reference to an audi letter to Ms Mogaladi. Yes or no?

Ms Motsitsi: By insinuation there is on the issue of insubordination.

Adv Mpofu: What has that got to do with an audi letter?

Ms Motsitsi: How do you testify about insubordination if you did not start with an audi letter. Obviously if I am going to talk about insubordination, it’s the fact that she failed to submit the reports as and when they were required by the Public Protector.

Adv Mpofu: What you said in paragraph 115, the Public Protector’s reference to an audi in respect of Ms Mogaladi, that does not appear anywhere in the annexure.

Ms Motsitsi: By insinuation it is there. I do not agree with you.

Adv Mpofu: The employees would have had to read that and insinuate that there was reference to audi letter.

Ms Motsitsi: The email was copied to me to state that there needs to be a senior person who can testify against the Executive Manager. The Public Protector writes that I will testify.

Adv Mpofu: That is the point I am making; the Public Protector even included herself as one of the possible witness, correct?

Ms Motsitsi: Correct.

Adv Mpofu: By insinuation she was talking about an audi letter?

Ms Motsitsi: My evidence is that for one to get to insubordination, the process must have started with an audi, where a person explained and the explanation is rejected and one goes to warnings and then disciplinary action.

Adv Mpofu: The letter from Mhlongo, am I correct that one would get an audi letter, which was an opportunity to be heard; what happened after that?

Ms Motsitsi: You have to communicate further and state that you accept the reason.

Adv Mpofu: If one’s explanation is not satisfactory, one would be charged. According to the letter from Mr Mhlongo, what would then happen is that an external law firm would handle the hearing,

Ms Motsitsi: You do not get charged, you get issued. There are progressive disciplinary steps that one can take. One could get a warning, final written warning and eventually disciplinary action can be taken where a chairperson can be appointed to charge you.

Adv Mpofu: Assume all that had taken place, what would then happen was it would be investigated by an independent person, correct?

Ms Motsitsi: Whether it was handled by an internal person or external was neither here nor there, I am not a labour relations advocate in the PPSA. I have seen cases that were investigated by attorneys or it would be a matter investigated internally and submitted to Labour Relations to take steps.

Adv Mpofu: I know you are not a labour relations expert, but if you are a CEO, you are basically expected to understand the whole organisation. Correct?

Ms Motsitsi: As CEO, I have experts that are reporting to me. Those experts would include labour relations officers. They would advise me of what steps to take to ensure that the process was fair.

Adv Mpofu: As CEO, you must have some functional knowledge of the departments that fall under you.

Ms Motsitsi: Yes, and you are advised by your managers.

Adv Mpofu: Let's forget about whether it's an internal or external investigator. Let's use an external as investigator, it would then be a private law firm.

Ms Motsitsi: It depends on the process chosen.

Adv Mpofu: If it was external, it would be an independent law firm.

Ms Motsitsi: I do not agree with you. I have issued audi letters and taken matters up to the extent of Labour Relations. I never appointed someone to investigate. I never appointed someone, because I was sure that I followed proper processes from beginning to end.

Adv Mpofu: Please listen to the question. I accept that. Sometimes its internal. Put that aside. When it is external, typically an independent law firm would be engaged. Correct?

Ms Motsitsi: It doesn’t have to be a law firm; in one case, I know that it was another institution that investigated.

Adv Mpofu: Ok, an independent institution, whether a law firm or accountant firm would then be appointed.

Ms Motsitsi: May be appointed, can you use may.

Adv Mpofu: After the independent institution, the matter is then referred to another independent law firm to appoint a chairperson.

Ms Motsitsi: I was appointed as a chairperson, but I was not external, I was internal. That is why I do not understand where you are leading this question.

Adv Mpofu: Don’t worry about where I am leading the question. Just answer the question. When the process is now being externally handled, does it typically refer to an independent attorney who will appoint a chairperson. Yes or no?

Ms Motsitsi: I do not know. I was a CEO for three months and I never referred a case in that way.

Adv Mpofu: You have never heard of a disciplinary hearing being referred to an independent person?

Ms Motsitsi: It has happened, with Ms Mogaladi and I think with Mr Ndou. Only in those instances.

Adv Mpofu: Let's go to the letter. I am just trying to show that there is a general process that gets followed, that involves independent people. I do not know where the problem is. Third paragraph it says that an independent advocate was appointed to chair the meeting.

Ms Motsitsi: I see that.

Adv Mpofu: That means that apart from the investigation, there was an external law firm, and that law firm would also appoint an external advocate.

Ms Motsitsi: I do not know. I was not involved in this process.

Adv Mpofu: Why were you reading this letter then?

Ms Motsitsi: I was reading this letter to show that in the case of Ms Mogaladi, the Public Protector wrote that I would be testifying.

Adv Mpofu: Are you telling us that as an Acting CEO, you cannot confirm that there was a process of ensuring independence in disciplinary proceedings of the hundreds of people you were CEO of.

Ms Motsitsi: Can you repeat your question Advocate.

Adv Mpofu: Are you telling us that as an Acting CEO, you cannot confirm that there was a process of ensuring independence in disciplinary proceedings of the hundreds of people you were CEO of.

Ms Motsitsi: This matter was in January 2020, I was the Executive Manager. Secondly, I want to point out to you that when I was appointed to assist as Acting CEO, I agreed on condition that I am not even getting an allowance. You cannot say that I rose to the level of CEO, because three months after I was requested to assist, I decided to step down. You cannot say I rose to that level, because I am still Executive Manager.

Adv Mpofu: Even as Executive Manager, I am sure you are responsible for the people who report to you. How many people report to you?

Ms Motsitsi: 24 people. I do not issue letters to them, I do not charge them. I am responsible for a senior manager.

Adv Mpofu: You accused Mr Ndou of malicious compliance.

Ms Motsitsi: Yes.

Adv Mpofu: You were expressing your own view?

Ms Motsitsi: Yes, as the Acting COO.

Adv Mpofu: What you put there was stronger language than an audi letter. That’s a serious accusation.

Ms Motsitsi: Correct. I had engaged Mr Ndou [EM: Provincial Investigations] on several occasions. It was not in this matter, it was in other matters. Mr Ndou is not open as other executive managers. When I was requesting the report, there was supposed to be a Skype meeting with the Public Protector on the 14 August, and he sent me the report on the 14 August. I had to go through that report, quality assure it etc and then send it to the Public Protector so that she would be able to conduct her meeting.

Adv Mpofu: Your issue with the report was the lateness, correct.

Ms Motsitsi: No, I list the fact of the format, neatness.

Adv Mpofu: All I want to establish is that you expressed serious frustration because someone had given you the document late – you even accused that person of a serious case of malicious compliance. If that happened to you for being given something late, surely you would understand how frustrating it was for the Public Protector – for it to be happening across the board and even she had not gone as far as you had of accusing someone of malicious compliance? Do you understand and agree?

Ms Motsitsi: When it comes to the Public Protector’s frustration regarding the lateness of reports and shifting of deadlines, I know it well.

Adv Mpofu: That was on the 14 August, on the 15 August, you again make an accusation of malicious compliance. Was that your second accusation or reiterating the first one.

Ms Motsitsi: This is just a meeting form, which had a memo. Under the routine section there was a comment form. The memo included the comments. It was essentially the same thing.
Adv Mpofu: You made comments that could instil fear in someone. Which was worse – an audi or being accused of ‘malicious compliance’?

Ms Motsitsi: Malicious compliance did not instil fear; it was a fact if you had given someone the report on the date it was due to their superior.

Adv Mpofu: Malicious compliance you would agree is a dismissible offence.

Ms Motsitsi: No, it's not. You still have to go through all those steps. It is not a dismissible offence in this context.

Adv Mpofu: You are making a finding, it is malicious compliance.

Ms Motsitsi: I explained why; I had to read and quality assure the report on the same date I received it.

Chairperson: The Committee will meet tomorrow at 9am and continue with the cross-examination. If this is the rate that we are going to deal with questions I can see that we are not going to finish tomorrow. I will try find a different way of asking questions.

Adv Bawa: Am I correct that tomorrow’s proceedings are entirely online?

Chairperson: Yes.

The meeting was adjourned.

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