PP Inquiry day 29: Nthoriseng Motsitsi; Nelisiwe Thejane

Committee on Section 194 Enquiry

10 September 2022
Chairperson: Mr Q Dyantyi (ANC)
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Meeting Summary


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

Parliament's media statement: Witness, Ms Nthoriseng Motsitsi, Public Protector Executive Manager: Complaints and Stakeholder Management, who also served briefly as Acting Chief Executive Officer, told the Section 194 Enquiry Committee that the State Security Agency (SSA) demanded to be reimbursed for the Chief Financial Officer (CFO) seconded to Public Protector South Africa (PPSA). Initially she was informed that because the Acting CFO had come from the SSA, PPSA would not have to remunerate him for his services. However, she was later told that PPSA did have to pay his salary.

Ms Motsitsi elaborated on the working environment in PPSA and referred to it as a “hostile environment” where she, as an executive manager, was not allowed to give an input. She testified that she and other PPSA staff worked in fear during Adv Mkhwebane’s current tenure.

Earlier in the sitting, Adv Dali Mpofu, SC, during his cross-examination, continually asked Ms Motsitsi whether it was acceptable for her colleagues to miss deadlines to submit reports. This was in defence of the PP against accusations that she repeatedly issued audi alteram partem letters to her subordinates for not meeting deadlines to submit reports or Section 7(9) notices. Although she provided reasons for her colleagues’ actions, such as ill-health and copious work demands, Ms Motsitsi admitted that the late submissions were unacceptable and amounted to non-performance. Adv Mpofu was pleased by this admission, as he felt that it was unfair for certain PPSA staff to depict Adv Mkhwebane’s issuing of audi letters against them as her being unreasonable.

Later in the day Ms Nelisiwe Thejane, PPSA Executive Manager: Provincial Investigation and Integration: Inland, testified about the pressure placed on staff and unrealistic deadlines set by the PP, to accelerate the finalisation of investigations and reports. The PP would not merely insist that investigation procedures be rushed, but that action would be taken when staff did not meet deadlines in time. Through this stance, Adv Mkhwebane gave off the impression that either she did not care about the quality of investigations and reports or that she did not understand what was involved in the investigative process.

Ms Thejane further claimed that Adv Mkhwebane’s demands were eroding staff morale, leaving many emotionally and physically exhausted (her included). Members heard that Senior Management at PPSA were expected to attend various meetings, some of which she described as being unnecessarily long, leaving them to only start work on investigations at 16h30. With a limited amount of time to focus on investigative reports, PPSA investigators often were unable to submit their reports and notices on time, which she believes contributed to a reduction in their quality; thus leading to their dismissal by the courts.

Meeting report

Chairperson: Good morning colleagues and welcome to our Section 194 Hearing on this Saturday. I’d like to acknowledge Adv Mkhwebane and her team, the evidence leaders – who were here on time – Members, the media and the public. It is the first time we have our hearing on a Saturday. I want to indicate that Ms Nthoriseng Motsitsi, you remain under oath. Welcome.

Ms Nthoriseng Motsitsi: Thank you.

Chairperson: I’d like to indicate that we will have shorter breaks today, so that we can maximise the time we have. I’d like to acknowledge you, Adv Mpofu, and proceed with the cross-examination you started yesterday.

Cross-examination of Ms Nthoriseng Motsitsi (continued)
Adv Dali Mpofu: Good morning Hon Chairperson, Members and Ms Motsitsi.

Ms Motsitsi: Good morning Advocate, Chair and Members.

Adv Mpofu: We stopped when you and I were discussing your – as I characterised – harsh correspondence to Mr Ndou. Do you remember that?

Ms Motsitsi: Yes.

Adv Mpofu: You confirmed that it was frustration due to malperformance, correct?

Ms Motsitsi: Correct.

Adv Mpofu: I was suggesting to you that your harsh comments would have been received in a more terrifying manner than an ordinary audi letter, which says tell me and show cause why I should not take steps. Do you remember that debate between you and I?

Ms Motsitsi: I do remember that debate.

Adv Mpofu: Good. Now just to round off that point… It is correct, isn’t it, that to alleviate this particular frustration, you then imposed a new deadline system where they would give you the documents a week before, so that you are not put in a situation where you are given something on that day. Correct?

Ms Motsitsi: A week or two, yes.

Adv Mpofu: Yes, you asked for a week or two. I agree with that approach. That experience must have shown you that in order to alleviate those frustrations, one has to give project deadlines that will allow for you to do your work. In other words you give your subordinates timelines that allow you to be able to do your work, correct?

Ms Motsitsi: That’s correct, Advocate.

Adv Mpofu: Yes. Did the imposition of those deadlines improve your frustrations?

Ms Motsitsi: No, the compliance never happened. I still received my reports on the day they were due to the Public Protector. I was never given that special time. That is why I am saying it was difficult to quality assure the reports fully; you end up being a proof-reader.

Adv Mpofu: Yes, I see. As a result of general non-compliance of your subordinates, even after you imposed those deadlines, there was no progress?

Ms Motsitsi: No, there was non-compliance.

Adv Mpofu: These were the kinds of things that led you to lose it? Sorry to use that expression. To give up and say ‘look I’d rather go back to my old job, this is not working’.

Ms Motsitsi: I didn’t add value to investigation reports. That’s why I requested a week or two as they referred to cases, they referred to law, and they referred to evidence submitted by the complainant. On your table you don’t have one file – you have five, six or ten files that you have to submit and are due on that date. So I realised that I am not adding value to this. I am not doing justice to the work that is supposed to be done by the COO (Chief Operating Officer).

Adv Mpofu: The deadlines you imposed on these people, you did not regard them as unreasonable or impractical, as we have established they would have allowed you to do your work as well? Correct?

MS Motsitsi: Well, if you look at the document I showed yesterday, the task register…obviously an investigator will be given a week or two to submit a report, a Section 7(9) notice or a discretionary notice. From those two weeks given, I also required a week. So it means that the investigator has one week to complete the discretionary notice or the report. Although it was unreasonable on my part to ask for that and impractical for investigators, but I had to put in some measure to say ‘can I please get these reports, so I can apply my mind to what you have submitted.’ That was impractical because they were dealing with several cases, but I really had to put something in place to make sure that I also do my work as the last authority.

Adv Mpofu: That is understandable because you had to meet your own deadlines that you had discussed with the PP, correct?

Ms Motsitsi: Yes, I think what was important to investigators was the deadline set by the PP and I would sit and finish when someone would submit. It gave me too much pressure. Obviously I had to comply as they had given me a notice or the report.

Adv Mpofu: Oh, I see. So you were saying that effectively these people would ignore your deadlines and try to comply with the deadlines of the PP?

Ms Motsitsi: Yes, they would give an excuse that… Let’s say a senior investigator says ‘I have to give my report to the Chief investigator’, from there to the Executive Manager; from the Executive Manager to the Acting COO. So obviously if I put my deadline, the Chief Investigator puts her deadline, the Executive Manager puts her deadline. At the end of the day, they don’t have any days to focus on the report because everybody wants a day or two to go through the report before they submit. However it was important on my part because once it reaches the PP, it is the final step where she’s going to approve.

Adv Mpofu: And you were very frustrated with, to put it mildly, these excuses you were being given, correct?

Ms Motsitsi: Extremely frustrated Advocate, if I could put it that way.

Adv Mpofu: Alright and as you say, you decided that 'I no longer want to be Acting COO anymore and I’d rather go back to my normal job’, correct?

Ms Motsitsi: Yes, I wanted to take responsibility for what I delivered to the PP. It had to be quality assured and something I could stand by; I must be able to defend that report.

Adv Mpofu: As a matter of interest, before you kind of buckled under these excuses, which is understandable, do you apply any steps for consequence management against these people?

Ms Motsitsi: Okay. My style of management is that I would go to the offices of the Executive Managers, and I would find them working on the reports with their teams. I have been to every office, to understand what is happening in their offices. There would be many reports, on a daily basis. They would tell me that they are considering evidence that has been submitted. So that was the 'audi' I was giving them, which was going to them, seeing what they are doing and understanding what they are doing. Obviously I could see that the deadlines were impractical.

Adv Mpofu: Okay. Alright. So then they were not giving excuses. That means that you are wrong with that; that means that they were giving you genuine reasons. So why do you say they were giving you excuses?

Ms Motsitsi: Excuses… how do you define excuses? Because if you say ‘Can you please excuse us, we are still working on this report, we cannot submit it’... how would you define it? Maybe I am not understanding the phrase ‘excuses’.

Adv Mpofu: Okay, maybe you don’t. When somebody gives you excuses, in other words, when you ask for something and they give you excuses, that generally means that they are not giving you a valid reason. It is a different thing if someone gives you a good reason. That’s why you say ‘stop giving me excuses, I just want my work…’ or something like that. Do you understand?

Ms Motsitsi: I don’t define excuses as not being a valid reason. They gave me reasons about what they were doing and I would go and check for myself that they are doing exactly that. But where you will find that they are not delivering because… It happened in my case, five months ago I started asking for a notice and it never happened, and that is when I issue an audi. Since February, March and April I have been asking for this, and it's not happening. The explanation they give, you find that it is way outside the work that the person is dealing with. That would still be a valid reason, under those circumstances.

Adv Mpofu: Yes but not one that you would accept, as it would be outside of their scope? Okay, let me put it this way: after all those reasons, excuses or whatever you call them, at some point you would issue an audi letter: 'Now you must give me the reasons in writing', correct?

Ms Motsitsi: They would provide the reasons and if it is outside the work, and unfortunately we find that those circumstances made it impossible for the person to perform… that is when I go to the level of working with you and making sure… I can give you an example, in the remedial action where I got an audi. In that case I spent a week in the boardroom and in that week alone we produced 86 letters, she was required to submit 40 letters a month. I would do the work for you and I checked the office, and found that the filing system was a mess; she doesn’t have a project plan and I drafted a project plan for that person because her private situation made it impossible for her to leave work after five. So those reasons you accept but you take the manager, guide and assist her. But it happens every now and then, you say ’I did this for you; I have assisted you; I have done your project plan but now you are not complying’. That is when you decide that now I am issuing this warning.

Adv Mpofu: Okay, good. Then we are on the same page. At some point, after all those good things, you would issue them an audi letter and demand an explanation. We have gone through what then happens if the explanation is good. That’s fine. If it’s not good, further steps can be taken. Correct?

Ms Motsitsi: Yes, correct.

Adv Mpofu: Good. That’s very good. Yes, I think that’s how the people who believe in the audi letter system have described it like that. Alright. Now let’s go to… Chair, let me just do this because yesterday, I think we were not making much progress. I will put certain propositions to you and expect you to give me a yes or no answer but you have a right to… once you have answered the question, if you want to give an explanation. Don’t feel that you are confined. I am just doing it so that we cover a lot of ground. I am sure you understand that as a legally trained person. Correct?

Ms Motsitsi: Correct. I understand that.

Adv Mpofu: Good. Let me start, maybe in fairness, with telling you some of the broad criticisms I have with your evidence and your affidavit, and we’ll get to the specifics. One of them is that… well it might be a good thing or a bad thing. It’s a good thing in the sense that we can ignore some of this evidence; for example, where you expressed other people’s views – yesterday I said you act as other people’s spokesperson. In terms of evidence that is worthless because those people either must come here and speak for themselves or those who have spoken will speak for themselves. So your views about what they were thinking or whatever, are completely worthless, to put it bluntly. You understand that, in terms of how evidence works, correct?

Ms Motsitsi: I understand what you are saying but I was giving examples about situations that involved me. So the evidence would relate to me, in issuing an audi and how I played a role. I think you are talking about the FSCA (Financial Sector Conduct Authority) matter, that I am the one who recommended Mr Madiba and Adv van Eeden. When I recommended them, I knew them to be the ones investigating. As to how the matter involved Ms Mogaladi and Ms Sekele… those are things that happened within the investigative fund. But the work was allocated to Mr Madiba and Adv van Eeden, as per my recommendation.

Adv Mpofu: Yeah, that I understand because you are talking about your own experience. If you go to page 4219. Go to the next page, 4220. Where you say for example “it was clear that Ms Baloyi was overwhelmed by the pressure to which the PP subjected her and advised her that the audi will provide us an opportunity to be heard.” And then if you go to 121 at the bottom, you say “Ms Baloyi was attempting to work with more realistic deadlines having consulted the investigators and understood the constraints within which they were operating. She was also attempting to avoid cases of malicious compliance, where investigators would submit simply a document on a particular deadline.” It's that kind of example… I'm saying there, you're not expected to speak for Ms Baloyi because she's a witness here. She'll speak for herself. If that is what she was thinking at that time, you understand? So your evidence of what she was thinking is relatively worthless compared to what her evidence will actually be when she speaks for herself. Do you understand?

Ms Motsitsi: That’s selective reading. Go to paragraph 118, where I say “Ms Baloyi resisted the PP’s insistence that she, as COO, issue audi letters to every EM (Executive Manager). However, I recall that one night I found Ms Baloyi broken and sitting in the office mulling over the prospect of her employment being terminated as she was still on probation. She said she had reached the end of the road, in that if she does not comply with the PP’s instruction to charge us, she is going to be terminated.” Then “it was clear from where I was sitting, that Ms Baloyi was overwhelmed by the pressure to which the PP subjected her…” So it's something that I observed when I went to gather that.

Adv Mpofu: That's exactly what I'm saying, ma'am. I’m saying your observations are relatively worthless about someone else's feelings. It's better if she says that's what she was feeling; then it's better in terms of evidence. If you don't understand that, that's fine. I'm just saying that is one of the criticisms I will give. The other one is also where, for example, you give a version about somebody's… like Ms Mogaladi, who was here and spoke for herself. I think I gave you an example of this yesterday. Like she gave a version for example of how it came to be that she was in charge of the FSCA matter. Again, I'm saying the Committee is more likely to accept Ms Mogaladi’s version than your secondary version, which might even clash with what she has to say.

Ms Motsitsi: It won’t clash. I know factually it will not clash. Factually the files were allocated to Mr Madiba and Adv van Eeden upon my recommendation. Then I asked how it ended up with Ms Mogaladi, Ms Sekele, because yes, Ms Mogaladi was EM: Good Governance and Integrity (GGI), from 1 November when I wanted to step down but Ms Sekele was the Chief Investigator, Mr Madiba was still there and Adv van Eeden was still there. So how does it migrate from one chief investigator to another senior investigator?

Adv Mpofu: Yes madam. I'm simply saying what you're saying now. It might be strange to you but if it is not strange to the person you're talking about – in other words, Ms Mogaladi… look we’ll move on because I don’t think you understand what I'm saying. I'm saying…

Ms Motsitsi: It was not strange to her.

Adv Mpofu: Okay, listen. I'm saying you may find it, whatever word you want to use… odd, that the work was being demanded from Ms Mogaladi. I'm saying she herself came here; she never expressed any oddness about the matter. So all I'm saying is that the Committee is therefore likely or should go with what her experience is on that issue rather than your secondary experience. If you don't get it, that's fine. Let me give you another example. Yeah, go to paragraph 107.

Ms Motsitsi: 107? Yes.

Adv Mpofu: You say there… This is under Ms Mogaladi. You were talking about… Do you remember her bereavement and all that?

Ms Motsitsi: Yes.

Adv Mpofu: So you say “I called the PP, at around 20:00, to inform her about the situation and to indicate that no one could prepare a meaningful report in Ms Mogaladi’s condition. The PP insisted that she wanted the report. However, I held firm, and asked the PP to hold me responsible for the production of the report, but only to allow Ms Mogaladi a day with her grief, attend the funeral and then to resume the report on the following Monday. The PP eventually agreed subject to the condition that I took responsibility.” I'm saying okay, let me give you an example. Ms Mogaladi was here. Her version of what happened around this is different from yours. She says she was in Limpopo. The PP sent her condolences messages, and it was good and all that; and she only came back to Johannesburg to submit her leave form and go back. Now your version is that ‘No, she was here. She was there until eight o'clock in the evening’, and what have you. Do you understand the difference between those two versions?

Ms Motsitsi: No, I don’t understand.

Adv Mpofu: Okay, that’s fine.

Ms Motsitsi: Can I?

Adv Mpofu: No, leave it madam. I don’t want to waste your time. I'll debate it with the Committee afterwards.

Ms Motsitsi: But now you’re going to debate it without my comments.

Adv Mpofu: Yes ma’am. But if you don't understand it, you can’t give an input.

Ms Motsitsi: I want to clarify. I just want to clarify. At 106, I said “I went to Ms Mogaladi’s office. I was called by the Public Protector’s personal assistant. I found her crying at her desk while typing a report. She had suffered a bereavement. I explained what happened. And I called the PP at around 20:00, to inform her about the situation and indicate that no one could prepare a meaningful report in Ms Mogaladi’s condition”. That is how I experienced it when I was with her in her office. So that’s what I wanted to clarify. Thank you.

Adv Mpofu: That’s fine. I was just telling you that she told the Committee that she never came back to work; she only came to Joburg to submit a leave form. That's fine. As I said, let’s not debate that now. Now let's then go to the issue of… Oh, I forgot yesterday actually to ask you, if you could bring us the copies, if you still have them, of the audi letters that you received from the Department of Home Affairs. Do you still have those?

Ms Motsitsi: Yes, I will check. I must have something somewhere.

Adv Mpofu: Even afterwards.

Ms Motsitsi: I’ll do that. Let me note that.

Adv Mpofu: Okay, ma’am. We will ask the Evidence Leaders to remind you. And while we're on that… since we don’t have them here, you may not remember. But the standard form of those audi letters… the usual form (is) explain why you did not do this. If you don't explain, there may be further action, I’m just paraphrasing… something like that, correct?

Ms Motsitsi: That might be, Advocate. I don’t have them, but that might be the comment. Yes.

Adv Mpofu: Okay, good. And the reason why they would be in writing… Do you know why the audi letters are supposed to be in writing? Just generally.

Ms Motsitsi: Well, at Home Affairs, I was in the province. So anything you do might came in mail or letter. So because of the distances between Head Office, my direct manager, Mr Vusumuzi Mkhize was based in Pretoria, so we reported to Pretoria and most of the time we would travel. My audi letters, if I say it's an audi, I’m giving you a hearing. It involves going to your office. So it might be a conversation. Or calling an employee, but you’re supposed submit this but you did not, and then they explain. So audi, listen to the other side, it doesn’t have to be in writing. It can be a discussion.

Adv Mpofu: Yes. No, that’s different. I'm sure people in every work environment, they talk and listen to each other. That's not what I'm talking about. I'm talking about an audi letter. An audi letter is in writing, correct?

Ms Motsitsi: An audi can be oral, or it can be a formal letter or an email. It can be like that.

Adv Mpofu: Please listen to the question. It can be one thousand things, but when it's an audi letter, it's in writing. Correct?

Ms Motsitsi: Yes, the letter is in writing.

Adv Mpofu: That's the reason why you still have them somewhere. You're going to give them to Evidence Leaders. If it was just a conversation, you would not be able to give them to us. Do you understand that?

Ms Motsitsi: If it was an email… I’ll give you emails, if I still have them. I’ll give you a letter, as you define it. And then I’ll give you an email. If I was asked telephonically and I responded myself, I will give you my response and say ‘this was asked’.

Adv Mpofu: Alright, that’s fine. You said the PP was good to you, she recruited you from the Department of Home Affairs. She gave you an opportunity to act as CEO, and even as COO, and as I understand it, you welcomed those opportunities as learning opportunities, correct?

Ms Motsitsi: Correct. Yes.

Adv Mpofu: And you also expressed to her frustrations about the working environment about some of the employees? Correct.

Ms Motsitsi: Correct. Yes.

Adv Mpofu: And that's my other problem with your evidence. Ma'am. I'm going to deal with that now because for some reason, you now give a different spin or accent to those issues, as if there were no problems, and these people were totally innocent; and there was this horrible Public Protector, instilling fear and what have you. But in reality, you are aware of the problems that the Public Protector was facing. Let’s take Ms Mosana.

Ms Motsitsi: Oh, Mosana?

Adv Mpofu: Yes, Cleopatra Mosana.

Ms Motsitsi: But before you go to Ms Mosana, can I clarify something? The Public Protector wanted to make sure that you understood her. She’s been good to me; she gave me opportunities. The way she asked, ‘can you please assist’. When I made proposals, I’m proud to say she accepted my proposal ‘no, do not terminate, let us move Ms Mosana to this post’. So the only thing is… what goes wrong here, is that people are telling you their issues. I know them from experience. I go to their offices as Acting CEO (Chief Executive Officer) or Acting COO and every time they come with an excuse, as if I have no powers to get those reports. And we end up doing the work for the employees because I don't want to keep on going to the PP for that (and say) this one is going through this, Ma’am; this one is still in the office, doing this and this. It doesn't appear good as a manager or a leader and as a supervisor to always come up with excuses. Hence, you'll find us doing their work. So I'm not spinning. I'm simply saying, yes, there were genuine reasons. People lived in fear and I also lived in fear… in the sense that if this thing is not delivered, the audi will come to me – and they did come to me.

Chairperson: Over to you, Adv Mpofu.

Adv Mpofu: Thank you, Chair. No, no. Okay. Sorry. Maybe I misunderstood. No, that's the point, ma’am. That's where I have a problem because what you're saying to me now makes perfect sense. But in your statement, you portray her as this person who doesn't listen and yet, the real experience, as you correctly point out is that when you made suggestions, those suggestions were accepted. I think you appreciated that, for example, your intervention in the Mosana issue as you've correctly pointed out. Do you understand?

Ms Motsitsi: Show me the statement that you are talking to?

Adv Mpofu: Pardon?

Ms Motsitsi: Can you show me the statement that you are referring to so I can give it context?

Adv Mpofu: Yes. Where you say she was not interested in listening… Yes, I will show it to you. But let me just give you other examples. I mean, the Public Protector actually, when I was consulting her about you, she gave a very good account of those kinds of interventions by yourself. She gave you credit, for example, for having introduced what you call the district model in outreach which I think you described yesterday, where you didn't have to have these hundreds and hundreds of meetings, but you could do them in a district to cover a wider area. That was an idea that you came up with, I think, because you had learned it from Home Affairs, correct?

Ms Motsitsi: Yes.

Adv Mpofu: Yes. As I say, she credited you with that. That's another example of her having listened to your input and has gone as far as adopting it as her own approach for the Public Protector. You understand?

Ms Motsitsi: That's not the only one, I can give you several examples. The Masiphumelele project that we undertook, I mean, she even had to go there about three times when I recommended that we need to do something to change the circumstances of those people in Cape Town. Yes, that's why I'm saying she was good to me. When I made proposals, she listened. But I don't portray her as a person who is… you said a person who is?

Adv Mpofu: Not interested in listening.

Ms Motsitsi: The environment that we're living in instilled fear, in the sense that whenever you go to the office of an investigator, you would find them doing their work, as opposed to a person who doesn't do anything. And now I'm coming. They have more than 20 / 30 reports and she has to maybe have a media briefing on all of those reports. Of all those 20 reports, she only gets two and I have to explain the 18. She doesn't want to understand yet when I go to the situation in the office, I find, yes, these people are working… and they were truly working. The Chief Investigators, the Executive Managers, they were truly working. What I like about Public Protector South Africa is you have professional, dedicated, committed staff members – they are there.

Adv Mpofu: Good.

Ms Motsitsi: Yes. Those things I can see because I'm on the ground. But now going to her, she wants those reports because she wants to have a media briefing. I can't produce these things, because somebody's still working on it. And if they give me a report, that is not quality assured, I’m not being fair to the PP. I’m not fair because it’s her name out there.

Adv Mpofu: Yeah, I agree Ma’am. All I'm saying is that the environment, and I think you correctly used that word there… I'm saying that the environment affected everybody, including the Public Protector, because that's also the environment that she found there, correct?

Ms Motsitsi: Yes. No, whether she found it there… I was not there when she got there.

Adv Mpofu: No, no, no. Let's say that the environment she found herself in, like you, like everyone else – there was a lot of work. Cases were streaming in. In fact, in an ironic way, you are the cause of that because with your outreach, the more people know, the more they bring work and the volume increases and so on. That's understandable. That's what caused the environment, correct?

Ms Motsitsi: Correct.

Adv Mpofu:. Yes. I'm saying similar to what you're saying – there were dedicated, competent people who wanted to serve the public and that also included the Public Protector, correct?

Ms Motsitsi: Alright. Public Protector is a compassionate person. She's dedicated; she's committed; hard worker. And that’s why when she wants delivery, she wants to deliver. But there are circumstances that you should consider when you want a report. All the reports that we're dealing with. FSCA, you're dealing with boxes and boxes of evidence. Mandela funeral, you are dealing with boxes and boxes. When you go there as a person on the ground, you see these people going through these files because that is my management style. I want to see the complaint itself, whether you are responding to what came in. I demanded the chief investigators bring the complaint files. They brought boxes and with a report due tomorrow or today. It's that environment where you have to understand first, before you can make demands. They had to show me that this is what we're dealing with. But when it comes to dedication, commitment and drive, I can confirm she's driven.

Adv Mpofu: Yes. No, thank you. Thank you very much, ma’am. Yes, no, I accept that. In fact, one of the witnesses described her as results-driven. You would agree with that, correct?

Ms Motsitsi: Yes, she’s results-driven.

Adv Mpofu: Yes, thank you. Alright. Okay, that's fine now. Then I'm happy we’re on the same page with that. The other thing which I wanted to use, but I mean you've already answered, is the fact that let's take another example when Ms Mogaladi was not delivering the PEU work. One of your proposals was that she must do a memorandum. You were actually emphasising to her that to write a memorandum to explain to the PP what the problems are… and don't keep her in the dark. And the point I'm making is that you would not have done that if she was not a listening person. The reason why you are advising Ms Mogaladi to do that was exactly because of your own frustration that she was not, let's put it, coming clean with the PP about why she was not meeting the deadlines. Am I right?

Ms Motsitsi: I think by then we already had a warning and written warning, et cetera. And the report was not delivered. I felt that because she even said, 'I don't want to comply maliciously. I can’t give PP this thing’. So in another attempt after she wrote that long, long email… letter, I think it was a letter. I said, ‘You have given me your side of the story. Can you just do it again.’ She said, ‘but I don't see any point because we are here now.’ I said ‘let us give it to her.’, maybe like I did with Ms Basani Baloyi. I said, ‘you feel that you don’t deserve this audi, but to me audi means, listen to me. If your manager says to you, 'Nthoriseng, you are not giving your staff audis. You are not listening to your staff.’... that’s what it means to me. That's why I would go and listen to them and bring back the answer and accept. So it was not like giving an audi with the intent of giving a warning and taking to a disciplinary. I thought it was a deficiency on my part as a manager that you are not listening to your staff. Listen to your staff. Yes. So the audis I thought that I understand them, were not the audis that were supposed to be issued; that’s why I’m calling them good audis and bad ones.

Adv Mpofu: Yes, I understand perfectly, ma’am. I have been in that space. What you're saying is that there's a difference between what we call, listening leadership, which is probably the biggest skill in leadership – listening. That we all accept. You’re saying that, to that extent, the Public Protector in your experience, was a listening leader, correct?

Ms Motsitsi: (inaudible).

Adv Mpofu: Sorry?

Ms Motsitsi: I said no. When I gave advice as acting CEO, I have to give her credit. She listened to me. She accepted my advice. That, I truly appreciated because…

Adv Mpofu: You can’t take it away from her.

Ms Motsitsi: Yes, you can’t take it away from her. But now you get a person writing about the circumstances. Adv Mpofu, you know if you give a person an audi… Do you know how long it takes a person to write that audi, and explain instead of doing that work he or she is supposed to be doing? It takes time for you. You write that audi, you give evidence. And then you are in a panic mode, because you might get three days or five days or 10 days, if you’re lucky. It puts you in a panic mode for those 10 days until you submit. Okay, so the reasons that are given they don’t matter because come the new CEO, two months into the job, he issues a blanket email and issues a warning to these people and doesn’t even understand what they did.

Adv Mpofu: Yes. No, Ma'am. I can understand that. I wouldn't like to receive an audi letter. All I'm saying is that you and I have agreed that there comes a point, even with you Ms Motsitsi, who is a good listening leader, there comes a point where you have to issue the audi letter, I think we've accepted that. Correct?

Ms Motsitsi: I haven’t. I would advise you, Adv Mpofu, be happy if you receive an audi because that person is actually listening to you. That is my attitude to audi. So that is my advice that audi is not a bad thing. It is a good management tool.

Adv Mpofu: Yes, but all I'm saying is that even the most listening leader in the world will reach a point where they have to apply consequence management. You would agree with that? If there is just non-compliance, otherwise the organisation will not comply.

Ms Motsitsi: Okay, let me give you a scenario. You give a person…

Adv Mpofu: Sorry to cut you. If you can answer the question. Then you can give me the scenario and explain.

Ms Motsitsi: Yes. Eventually you will get to starting a disciplinary process. But you give an audi and you hear a person, and the person tells you ‘I am going through a divorce process. I'm fighting for custody of my children, and going to court, and I've been chased out of the house, et cetera’ and all those things. Then as a manager, you start saying, ‘Okay, let me refer you to our counsellors.’ You refer that person to the counsellors, then you start putting measures in place that, okay, you have a manager who has this skill. Give them instructions to do 1, 2, 3 on your behalf because delivery is still important, performance is still important. You put that in place, and those people don't perform, and this manager doesn't follow up. This manager expects you again, as an Executive Manager, to do the work for him or her. That's when an audi… You’ll still say ‘I’ve given you assistance and support. I have done this’. You are saying, I want this thing by tomorrow or by Friday because I have given you resources. There were interventions, and you are not performing after my intervention.

Adv Mpofu: That’s good. Then let’s go to…Oh yes, before we do that. You also agree that coming out of your frustrations, for example, when you were the Acting CEO, it was a good thing for the Public Protector to respond to the CEO workload by putting emphasis on recruiting a COO but also separating the work so that the one concentrates on admin and the other one concentrates on investigations? That would have been a good development so that future people wouldn't suffer the kind of pressure that you were under. Correct?

Ms Motsitsi: I have no comment on that because the first CEO, Mr Themba Dlamini, was responsible for administration and investigations – I acted. And he also resigned I think mid- December. I think it was also because of the pressure – I don’t know. There you can say I can’t give my opinion as to why he resigned. I was also doing administration and investigations. Then came Mr Mahlangu. I don’t know why the decision was that Mr Mahlangu was responsible just for administration. I was requested to act as CEO and Ms Lusibane acted after Mr Mahlangu. She was also responsible for administration and not investigation. Then came Ms Sibanyoni… It’s back to square one. She is responsible for administration and investigation. So I wouldn’t have a comment on how you distinguish between these two cases because its back to the CEO being responsible for administration and investigation.

Adv Mpofu: Alright. Okay, I'm simply saying to you, that you act, you agree that it's a good thing, that the role of the CEO is more administrative and some of the work that deals with investigations with a core mandate would be separated to the COO. That's a good development, if that is implemented well. If it may not be implemented well, in certain instances, that's fine. But I'm saying as a matter of principle, that would alleviate the pressure on both persons. Correct?

Ms Motsitsi: Yes, it is a good development indeed.

Adv Mpofu: Good. And you accept that an environment such as the Public Protector's Office is, by definition, a pressured environment. One of the reasons for that is because of the Batho Pele (People First) principle where you must focus on serving the public, correct?

Ms Motsitisi: Yes, it’s a pressured environment. And yes it is about the people.

Adv Mpofu: Good. And you accept that it's wrong. I mean I wanted to say it's unfair, but I think to put it stronger, it's wrong to expect members of the public to wait for two years, three years, four years, five years, before they get a response from the Public Protector, correct?

Ms Motsitsi: Final response or are you talking about progress reports?

Adv Mpofu: No, I'm talking about just getting outcomes. You know, if I go to the Public Protector, and I have a complaint – I don’t know your internal workings – but if it's going to take me five years to get the outcome, that's just wrong, because I'm a citizen, and I'm entitled to delivery. Correct?

Ms Motsitsi: What we have done, Adv Mpofu, just to make sure that the complainants understand our environment, in our acknowledgement letter, we even tell you that in terms of our service standards: ER (Early Resolution) matters take six months; service delivery 12 months, GGI (Good Governance Integrity) matters 24-36 months. The person can know if I have investigation against Khusile, it will take more than six months. So we don’t raise expectations that you will get your response in three or in six months. You will know beforehand from the acknowledgement letter that this investigation might turn into a 24 or 36 month investigation.

Adv Mpofu: Chairperson, I don’t know if you can still hear me?

Chairperson: I can hear you, Adv Mpofu.

Adv Mpofu: I can't hear you. I can't hear the witness. We have load shedding. I think the generators are going to kick in soon. Can we just pause a little bit, Chair? I can’t hear either one of you.

Chairperson: That’s okay. We will pause for a few minutes. Can you hear us, Adv Mpofu?

Adv Mpofu: Yes.

Chairperson: You can continue where you last left off with the witness.

Adv Mpofu: Yes, I think it was she was responding to me about the issue of cost delivery. Yes, I think I got the gist of what she was saying, Chairperson. Ma’am, all I'm saying is understand your timelines and so on. In fact, let's even use that. So, if you say to me, ‘Mr Mpofu, this thing is going to take two years and the effort takes four years.’ That is to be avoided. It is just wrong. Correct?

Ms Motsitsi: It’s just wrong. It has to be avoided. You have to adhere to the service standards you set for yourself.

Adv Mpofu: Correct. Yes. And I want to put it like this, ma’am – and I want to see if you agree with me. You talk about the environment that was difficult. You talk about the pressure of the work that was coming. You talk about the fear of not meeting those deadlines. Have you considered the fact that the Public Protector operated under the same fear of not meeting the expectations of the public?

Ms Motstisi: I tried to explain yesterday that you can come, for example, with a complaint that you are a service provider, you tendered for a service at the department, and it was not granted. And you start an investigation, trying to assist the complainant, because you want to see whether the decision was fair or unfair. And you discover that, no, the people who were sitting there, they're not even qualified. Now it's taking another turn. There is a complainant here, but now you discover in the department that there are other issues, which are more serious. Now so long as you keep the complainant informed that this investigation is taking another life of its own. Now I no longer am addressing a complaint; I am addressing systems and processes in that department, but I keep them informed on a six weekly basis in terms of the service standards. So, yes, it might be unfair, but so long as you keep the complainant aware of the developments as you are investigating.

Adv Mpofu: Yes. Ma’am, the reason I tell you first start by answering my question and then give an explanation because of something like this – you end up forgetting what the question was. I'm saying I understood your answer on not meeting the deadlines. I was asking you a different thing. Do you agree that just as you or the other people working under you were working under this pressure environment and fearing that if they don't meet the deadline, there will be consequences – that the Public Protector herself acts under the same fear that if she doesn't improve the performance of the organisation, then the public will suffer? You can answer the question then explain if you want to explain. Do you accept that?

Chairperson: Hold on, Adv Mpofu. I think she is frozen. Let’s wait for a few minutes to get her back.

Adv Mpofu: Thank you, Chair.

Chairperson: Thank you. She probably has load shedding but you are safe because you were very efficient to get a generator.

Adv Mpofu: Yes, I have learned the hard way Chairperson. Adv Mayosi, are you able to bring her back?

Adv Ncumisa Mayosi: Yes, I am trying to do that now.

Ms Motsitsi: My apologies, Chair. It seems I don’t have power but I am using my router and it is fully charged.

Chairperson: You’re not using your generator like Adv Mpofu?

Ms Motsitsi: That thing has its complexities when you want to switch it on.

Chairperson: Welcome back. I hand over to Adv Mpofu.

Adv Mpofu: Thank you, Ms Motsitsi. Do you think people who cause us load shedding should be impeached?

Ms Motsitsi: People who cause load shedding should be applauded. In my situation they should be applauded.

Adv Mpofu: Because they get you out of this terrible situation? Thank you, ma’am. Okay. I was just saying when we got cut off, you would agree that the Public Protector also operates under the fear of non delivery to the public? Correct?

Ms Motsitsi: If we are quiet, yes. She must make sure that we are responding and we are able to explain. She operates under that fear because she has to deliver. She made undertakings on annual reports, strategy, et cetera. So she has to deliver.

Adv Mpofu: Even in her interview before these Members in Parliament, she made undertakings of delivering certain things within seven years, correct?

Ms Motstisi: If she made undertakings to the Portfolio Committee to deliver, she has to deliver based on her undertakings.

Adv Mpofu: You will know, I'm just taking advantage of you as a lawyer, you are aware of Section 195 of the Constitution which places obligations on people like her and public administrators in general. I don’t expect you to know the Constitution by heart but I'll just take you through it. Section 195 of the Constitution says that these are the principles that must guide people like the Public Protector: ‘a high standard of professional ethics must be promoted and maintained.’ You would agree that she endeavours to do that, correct?

Ms Motsitsi: A high standard of professional ethics must be maintained as the Public Protector.

Adv Mpofu: Yes. You would agree that Adv Mkhwebane endeavoured to meet that standard, correct?

Ms Motsitsi: Yes, in terms of delivering the deliverables.

Adv Mpofu: Yes. The other one is that “there must be efficient economic and effective use of resources, which must be promoted”. You would agree that she attempted to meet that constitutional standard as well. Correct?

Ms Motsitsi: Efficient use of resources?

Adv Mpofu: In other words, deadlines, meeting deliverables, clean audits… that kind of thing.

Ms Motsitsi: Yes, you have to use those resources efficiently.

Adv Mpofu: Yes. It also says that “services must be provided impartially, fairly, equitably, and without bias.” She tried to do that to the public at large, correct? Even in your outreach programmes, you were impressed by the messages she was giving to the people. Correct?

Ms Motsitsi: The support and messages and the attention.

Adv Mpofu: Yes. Section 195 says that people’s needs must be responded to. And that's the one I was talking about, that she was also maybe obsessed, but driven to make sure that people's needs must be met. Correct?

Ms Motsitsi: Yes. Thank you for that. This has been responded to.

Adv Mpofu: Right. No, that’s good. At least we agree on what was driving her. Now let's go to the financial strain that the organisation was operating under. Am I right that one of the key underlying problems that caused this financial distress is the allocation or non allocation of sufficient funds to the organisation?

Ms Motsitsi: When I was Acting CEO, you are allocated a budget, and it was R320 million. You cannot overspend and go beyond. A serious concern I had was when we had to apply for a bank overdraft. Because from the planning session, as CEO, as the leadership of the organisation, we were supposed to make sure that whatever we are doing for that financial year 2017/18, it must last us until 31 March 2018. Now you realise that whatever you have in December, you won't even be able to pay salaries in January by the 31st. So something went wrong. Yes we were not allocated a sufficient budget but in your planning how did you allocate this insufficient budget to make sure that it lasts you until the of the financial year.

Adv Mpofu: Okay. You and I can have a long discussion about that but we don't have to bore the Members. It doesn't work in that simple fashion, but that's fine. The point I'm making is simply that one of the key problems that caused the financial crisis was the insufficient allocation,(which was) not the only problem… the insufficient funds?

Ms Motsitsi: You have insufficient allocation, you live within that.

Adv Mpofu: Ma’am, we’ll come to what you do. Is that one of the key problems that was faced by the PPSA and caused the financial constraint… insufficient allocation of budget of funds, correct?

Ms Motsitsi: Okay. Can you tell me what is sufficient allocation?

Adv Mpofu: Alright. I think let me go to… your CFO seemed to have understood this better.

Ms Motsitsi: Yes, that is expected.

Adv Mpofu: If you go to 4229.

Ms Motsitsi: 4229? Yes, I am there.

Adv Mpofu: Okay, that's a document which was copied to you correct?

Ms Motsitsi: That’s a document I demanded when I started. That, did you make the PP aware of the financial constraints? We were operating but it did not seem that a formal communication was sent to me.

Adv Mpofu: Good. Now that document which you demanded and was communicated to you, gave this as the background to the financial constraints. “The baseline allocation is insufficient to cover the full financial needs of the organisation.” I'm simply asking you, were you aware of that as a problem, that the allocation was insufficient to cover the needs of the organisation?

Ms Motsitsi: This is what he said but my question is, when you plan, you plan within what you are allocated.

Adv Mpofu: Ma’am, no. I am sorry, I really have to cut you. We will come to that. You must just answer the question first and then you can explain as much as you want. Do you accept, or was it communicated to you that one of the problems was insufficient allocation of funds to cover the needs of the organisation? Yes or no. Then you can say about planning, whatever. Okay?

Ms Motsitsi: Advocate, that's why the CFO himself said – we had two meetings – I wanted to know. We had a plan. We plan within the baseline and now it is insufficient. Why do we realise now in December that it’s insufficient? We are supposed to be planning, submitting our plan, costing our plan. If you wanted R500 million, but then they give you R320 million, then you work within R320 million. You plan within and as your needs are increasing… that’s why you have to do your projections – that my needs have increased and they demand more money – where am I cutting? What am I doing to make sure that I still operate within this budget because my needs have gone to R500 million and I don’t have that R500 million.

Adv Mpofu: Alright. Budgeting and applying funds to an organisation doesn't work like that. But let me maybe assist you by showing you how the things work together. The other problem with the Public Protector South Africa, in terms of the causes for financial constraints was the skewed allocation of funds between employee costs and the core mandate? Correct?

Ms Motsitsi: Can you repeat that question?

Adv Mpofu: One of the reasons for the financial constraints faced by the organisation was the skewed proportion between what is spent on staff personnel and what is spent on the core mandate. Correct or not correct? Or you don’t know?

Ms Motsitsi: Advocate, I will say to you, right at the beginning of the year when you are doing your planning you know that I'm going to spend R200 million for… Unfortunately, if you don't want to hear my response…

Adv Mpofu: Ma’am, can I ask you for a favour? Answer my question first, then you can explain as much as you want.

Ms Motsitsti: I don’t agree with you, Advocate.

Adv Mpofu: Well you agreed with me when I asked you to do that in the morning. I don’t know why you don’t want to now.

Ms Motsitsi: No, I'm saying you have to operate within the insufficient budget that has been allocated. You know at the beginning of the year that I was allocated insufficient budgeting. Now if your needs are increasing, you have to adjust and readjust and review your needs, so that they fall within this budget that has been allocated; so that you don't go beyond and ask for an overdraft. That was my question when I took over, how did you get to the stage where we were not even aware that we weren’t able to pay salaries. How did we get there?

Adv Mpofu: You see, ma’am? Madam, you see the reason why I'm asking you to answer my question first is because of this. You don’t know what question you are answering – you are answering the wrong question now. Which question are you answering now?

Ms Motsitsi: You say the financial constraints were caused by skewed human resources and the needs of the organisation. So I'm saying you're aware right from the beginning of the human resources needs, financial needs and the resources. You'll know right at the beginning when you get that appropriation letter from the National Treasury that confirms you're going to get less than what you have requested.

Adv Mpofu: No, but that's a different… That's the point I'm making. We've moved away from the issue of insufficient funding. Now I'm asking you a different matter. I'm saying another problem – the skewed nature of the allocation between personnel costs and the core mandate… was that another problem? Forget about the allocation thing; we've moved from that. Was that another separate problem?

Ms Motsitsi: Define skewed?

Adv Mpofu: Okay. If a company spends more than 70% just on paying workers, and only 20% on its core mandate, whatever its core mandate is, then that is a recipe for disaster, generally. Would you agree?

Ms Motsitsi: Who caused that?

Adv Mpofu: No, ma’am. Let’s say its caused by…

Ms Motsitsi: By my planning as the leader of the organisation?

Adv Mpofu: Yes, all that.

Ms Motsitsi: I have decided to appoint more and take this budget. And let's say I have to produce products – vetkoeks – then I employ more people, and then I can't buy flour, then it's me who has decided to employ more people and I can't buy flour, so I can't render that service. I can’t provide those goods. That's why I'm saying the planning part and the deliverables, they must be able to be determined right at the beginning of the financial year. That is my understanding of planning, budgeting and resource allocation.

Adv Mpofu: Okay, then when are you going to answer my question? I'm saying I don't care who caused it, ma’am, or whether it's good planning or bad planning, but when that situation occurs, is it a problem that causes a financial… That can be a problem for an organisation?

Ms Motsitsi: If I appoint more people for vetkoeks and I don't have money to buy flour, it's a huge problem.

Adv Mpofu: It’s a problem. Okay, thank you. And the other issue that was a driver of the financial problem was spending on legal costs. Were you aware of that one?

Ms Motsitsi: Yes, I saw that in the memo and then later in our EXCO (Executive Committee) meetings, they were discussed regularly. I think that first year, it was like, I can't remember the amounts, but the amounts allocated for legal fees was about R10 million or something, I can't remember. Only to discover that you spend about three times that amount or four times that amount. So that was the first indicator that you are under budgeting for legal costs. Then the following year, it was increased by four million. I remember in one of the budget committee meetings you say you have spent R13 million but you move from R10 to R14 million. It doesn't make sense because your baseline now is R13 million.

Adv Mpofu: Okay, well, I don't think that ever happened that it moved to four times. But I'm just asking you a different question. That one of the drivers was spending on legal costs, which there's been evidence already, which was caused by a spike in legal fees reviews, for example, because of the EFF Nkandla Case and so on. But I'm not going into those underlying issues. I'm saying that is one of the drivers that was identified.

Ms Motsitsi: Legal fees were the driver. They increased tremendously.

Adv Mpofu: And the other driver was spending on ICT, correct?

Ms Motsitsi: Yes, that was the explanation provided to me by the Acting CFO then.

Adv Mpofu: Yes. Yeah, now, I'm saying then, ma’am… I don’t know why we are having this debate because that comes from your statement. If you go to paragraph 28 of your statement “the insufficient budget allocation; employee costs; overspending on employee costs; continual mismatch between PPSA’s budget; and spending on legal costs ;and spending on information communication technology.” Those were the five things that were mentioned as partly responsible for the problem. Do you accept those at least as the problem statement because you can't solve the problem when you don't know what the underlying causes are?

Ms Motsitsi: Selective reading again, Advocate. I am saying here “Regarding PPSA’s financial constraints, I annex a copy of a memorandum prepared by the PPSA’s Acting Chief Financial Officer”, and he mentioned those. Those are the reasons that he gave and that’s why it's there. You are saying in my statement… In my statement I said, ‘The Acting CFO said’. So that’s the difference.

Adv Mpofu: Okay, fine. Did you accept or reject the CFO's analysis of the underlying problems?

Ms Motsitsi: I wanted to know from him and for him to explain to me why there is a shortage.

Adv Mpofu: In the end, after all those explanations did you accept or reject…

Ms Motsitsi: I said let us inform PP so that she is also aware, because I don't think she's aware of these circumstances.

Adv Mpofu: Okay, did you accept or not accept the circumstances? I know you said the PP must be informed. Did you accept or not accept the circumstances before they could be relayed to the PP?

Ms Motsitsi: I acknowledged the circumstances, and I wanted them communicated.

Adv Mpofu: Very good. That's all I was saying to you, ma’am – is that then you accepted or acknowledged or whatever you want to use that those were the underlying issues in relation to the constraints. Surely, you accept as a leader or as a manager, that before you can resolve any management problem, you must understand the problem because otherwise you'll be fixing the wrong thing. Correct? That's just basic management.

Ms Motsitsi: Advocate, you know, I find it difficult where financial constraints would affect the livelihood of staff because to me. PPSA is about human resources. So if you say I accepted, I acknowledge and I said we must do something – I acknowledge that there is a problem and this problem has to be highlighted and communicated to all management so that we all know because come March, there is no PPSA.

Adv Mpofu: Okay, I don't know where we're missing each other. That's fine. Now once those problems were identified, the remedial steps or the austerity measures have to be targeted to those problems. Correct?

Ms Motsitsi: Yes.

Adv Mpofu: Yeah, good. All right. Okay, you say you don’t know. I don't know if whether you say you accept or not the fact that, according to the CFO, at least 72% of the money allocated went to staff payments…

Ms Motsitsi: Which attachment, Advocate, by the way?

Adv Mpofu: 72% of the money allocated to PPSA went to the…

Ms Motsitsi: Can we go to the…

Adv Mpofu: Okay, no. I am just saying for now do you accept that if 72% of the allocation goes not to the core activities but to staff payment – that's just a problem? If you're a doctor, you find somebody with a temperature, you know that there's a problem. Would you say that is an indicator for a problem?

Ms Motsitsi: Can you show me the 72% so that I can respond in that context?

Adv Mpofu: No. I am not showing you, I am asking you. No forget… I don’t want to show you anything. I'm asking you whether you accept as a general statement that if there's an organisation that has only 28% of its budget allocation dedicated to its core activities, that would be a sign for a problem as a manager. Would you accept that?

Ms Motsitsi: If I render services and I am an attorney and 80% to 90% goes to paying staff, it is acceptable. That is why it is difficult for me to understand. 72% is about reports; it's about investigations; it's about outreach programmes. So its services more than the delivery of goods. If it was about delivery of goods and 72% goes to payment of staff, you're overly staffed because now you have to deliver goods which you can’t produce.

Adv Mpofu: Yes. Okay. Go to page…

Ms Motsitsi: That’s why I said show me the page.

Adv Mpofu: Yeah, go to page 4230. Okay, it says there: “The PPSA was allocated R301 million for 2017/18 financial year of which R217 million (72%) is allocated to employee costs.” Okay, you see that 72%? That’s the one I’m talking about. If an organisation is allocated 301 and 217 of that goes to employee costs and they say, “The overspending on employee costs was mainly due to the implementation of OSD, notch progression and merit bonuses for the prior two financial years.” In other words 2015/16 and 2016/17 before Adv Mkhwebane was working there. Okay? So that goes to your thing about how it was caused, we now know when and how it was caused. But I'm saying that I'm not in that game of whose fault it was. I'm saying that situation, if you find an organisation which spent 72% on staff employees and only 28% on its core activities, which is called the Public Protector, so that we forget about the attorneys, that would be a problem, correct?

Ms Motsitsi: That’s correct, Advocate. Let me explain this paragraph. At the beginning of the financial year, let's say on 1 April 2017, you decide from your budget that you're going to spend 72% on employees, then it is within the budget. If you decide that, then stick to 72%. The problem here arose as at 31 January 2018, the total overspending on employees was R9 million. How did this happen? Already on 1 April 2017, we decided that 72% would be spent on employees. Now you realise at 31 January 2018, you realise that you are going to overspend by R9.1 million. When did it happen? When did you take that decision? It should have been at the beginning when doing the planning and budgeting, isn't it?

Adv Mpofu: Yeah, yeah. I agree. Thank you, ma’am. Okay. Now let's move on to the issue of the CFO. You are aware there's been some comments made about the fact that the CFO was seconded from the State Security Agency (SSA), as if the SSA is not part of the state. Were you aware that when that was done, the Public Protector had approached Treasury as well to provide a seconded CFO?

Ms Motsitsi: I was not aware of that.

Adv Mpofu: Okay, that's fine. Okay, that will be led by the PP. Then you said something yesterday about… you were basically saying that is not true, that people would fail to meet their own deadlines or something to that effect? I don't want to misquote you. Is that your evidence?

Ms Motsitsi: No.

Adv Mpofu: Okay, do you therefore accept, because one of the witnesses told us they didn't understand why people were complaining because sometimes they had failed to meet their own deadlines. In other words…

Ms Motsitsi: Mr [Futana] Tebele said that, yes. What I explained is that… I even went to the annexure; tried to explain that annexure, I know it was difficult to understand. It was a task register.

Adv Mpofu: Okay, before the task register I'm saying as a general statement, you agree that people sometimes fail to meet their own deadlines? That was part of the problem, correct?

Ms Motsitsi: I don’t want to give an answer but I can explain this simply but I wanted to answer in the context of a task register. When I was Acting as CEO, I was a naive to think that when you are setting a deadline, you can set up for a month, and say it's because I’m going to the meeting – I may get more evidence to factor into a report. Then I would be asked when can you deliver this product. Then it's the 1 April. You say, no, I'll deliver on 1 May. My deadline would be rejected and it would be brought forward to deliver on 15 April. That is no longer my deadline.

Adv Mpofu: No, ma’am. Please, please, please listen to the question. Okay in that example, when your deadline is changed, it's no longer your deadline. You and I would agree?

Ms Motsitsi: Yes, we agree.

Adv Mpfu: Let's forget about that. Put it in the cupboard; lock that cupboard. Were there other situations where people would fail to meet their own deadlines; because that one we agree is not your own deadline? I'm asking about a different thing now – when you set your own deadline and yet you fail to meet it, is that a problem?

Ms Motsisi: If I set my own deadline and I failed to meet it, it is a problem.

Adv Mpofu: Good.

Ms Motsitsi: The deadlines were set right at the beginning, like in January, we were told that with those 15 cases, you should finalise them by 31 March and the date is locked. It's locked. You can’t exceed. Now the people would find themselves on 31 March, because it's the end of the financial year, they couldn't meet this deadline, then it goes to the next financial year. Yes, the investigation will go to the next financial year. So the first deadline is 31 March. It's not set by you. It's a decision.

Adv Mpofu: Ma’am, why are you not listening to me? Let's say 31 March is then not met. It’s not your deadline, forget about that. I then come and say, ‘okay, that 1 March was not my deadline, it's gone.’ I am now saying ‘I'm going to deliver this in May.’ That’s now my deadline, you understand?

Ms Motsitsi: That is my deadline? Yes.

Adv Mpofu: Yes, correct. Now I'm talking about that scenario, let's forget about 31 March. I'm saying, if I then say ‘no, the 31 March deadline was not mine now, I'm giving you my deadline, and its May.’ If I fail to meet that deadline, would you agree that there's a problem?

Adv Mayosi: Chair?

Chairperson: Just a pause, Ms Motsitsi. Adv Mpofu, she answered it by saying it would be wrong, and then she went on.

Adv Mpofu: Yes, that’s true Chair. That’s very true. Okay, let's give credit where its due. Okay, that’s fine, ma’am. So if it's wrong then not to meet my own deadline, the consequences of that, then must be blamed on me. Correct?

Ms Motsitsi: If it's my deadline, you blame me.

Adv Mpofu: 100%. Good. An example of that was… Even Ms Mogaladi conceded that in the case of Mr Madiba, for example, he was given a deadline or several deadlines. Then he gave himself a deadline, and he failed to meet it. And then the consequences followed. That cannot be unreasonable, correct – because it was his own deadline?

Ms Motsitsi: If it's his own deadline, he must meet that deadline. If it is his deadline, I totally agree with you there.

Adv Mpofu: Yes. Good. Now let's now go to the core issue that you use as an example. Are you aware that the PEU matter took about four to five years to complete?

Ms Motsitsi: Can we go to the PEU matter, I just want to see the reference number.

Adv Mpofu: Okay, I don’t know where you want to go. I’m asking you generally are you aware that…

Ms Motsitsi: That’s why I am checking for it. Yes, she might have confirmed, but as you said, I shouldn’t be a spokesperson for other people. So I am going to check my notes.

Adv Mpofu: No, I'm not talking about other people, ma’am. I'm saying that the evidence before this Committee is that the report took about four to five years and it's from the person who was working on it. I’m saying whether you agree with that, or you have a different experience?

Ms Motsitsi: I can’t agree if I can’t see it. It's likely.

Adv Mpofu: You can’t refute it? That’s fine. That's enough for me. Now is it correct for you, Madam, to use a report that has taken four or five years – if a child is born, now at five years they'll be going to school. Is it fair to use a report that takes four to five years as an example of a rushed report?

Ms Motsitsi: It would be worse, if you issue a shoddy report. Yes. It is not fair to take that long in an investigation. But if circumstances develop during the investigation lead you to go beyond the… Okay, I assume that the timeline for PEU was 24 months, I don’t know. It would be wrong, but still, you have to analyse the information, you look at the quantity of the volumes and volumes of documents, reports, inspections, interviews, et cetera. Then it would be worse if you issue a wrong report where you didn’t do a thorough investigation. I don't know why it took her five years but I'm considering that it must have been a complex case. I can’t see it in my document here.

Adv Mpofu: Okay. Now we'll get to that. All I'm saying to you is don't you think that it is – I mean there must be other examples – do you think that it is fair to use a report that takes four to five years as your primary example of a rushed report? Really? Can you say something that has taken four or five years is rushed? You earn about R1.6 million, correct?

Ms Motsitsi: Yes.

Adv Mpofu: So in the space of four or five years, you'd end up at R8 million. And if you don't produce something in that period, can you call it rushed?

Ms Motsitsi: Okay I've taken over as Acting COO in May 2018 and I find a situation where there is a report that is now urgent. From June to December, I have six months – I don't have the five years – and that report now has to be produced. As to where the report started, it is rushed in terms of me taking over and being responsible for that report. It is rushed.

Adv Mpofu: Okay, ma’am, let me take you through the history of this thing.

Ms Motsitsi: Thank you.

Adv Mpofu: Okay, go to Bundle. Item number 25.1. That is a report, ma’am, as you can see. It's to the Public Protector from Ms Linda Molelekoa, who was the Acting Chief of Staff at the time.

Ms Motsitsi: Yes.

Adv Mpofu: It's called ‘The tracking of PEU matter Section 7 State of readiness.’ okay? The starting point is that this thing was launched in 2015. “It was allocated to the Administrative Justice and Service Delivery (AJSD) Branch to be investigated. The PEU matter has been discussed in both task teams and later featured in PP weekly meetings wherein proposed date finalisation has been pending for some time. The EM has on numerous occasions requested extensions to finalise; section 7(9) has not materialised. The table below reveals numerous dates reporting progress, of previous undertakings to finalise the section 7(9) notice”. You see that?

Ms Motsitsi: I see that.

Adv Mpofu: “The PP has, on many occasions requested the EM to finalise the section 7(9), but every time it is either not prioritised accordingly, or instructions are ignored. Reasons for not finalising the section 7(9) ranges between personal and official reasons among which are…”, then there is a list of the personal reasons. Then it says, “these were some of the reasons provided to the PP why the PEU has not been finalised. The table below indicates numerous dates on which the matter was discussed on PEU matters. Dates were missed and shifted to new dates”, so this is where the people were now shifting dates to their own deadlines. Do you understand? Which you said doesn’t happen. “Dates on the red column indicate dates which were not honoured for submission”. Then it says, “The CEO and Ms Mogaladi: PEU.” Then there is a deadline of 2, 16 and 20 November. Do you see that in the red column?

Ms Motsitsi: Yes.

Adv Mpofu: How we got there is, you’ll see in the red column, there's a date of 25 October 2018. That’s a deadline that was not met, correct?

Ms Motsitsi: Okay.

Adv Mpofu: Then go down, 26 September 2018, another deadline that was not met, correct?

Ms Motsitsi: Correct.

Adv Mpofu: 14 September 2018, another deadline that was not met, correct?

Ms Motsitsi: Correct.

Adv Mpofu: 24 August 2018, another deadline that was not met and so on. It goes on until 30 May 2017. It goes on and on and on and on and on and on. Deadlines that are not met. That's the PEU matter, do you understand?

Ms Motsitsi: Yes.

Adv Mpofu: Right. Now do you think that if somebody fails to meet deadlines and shift deadlines for such a long period from 30 May 2017 to 2 November 2018 – that's something like 18 months – that must be tolerated?

Ms Motsitsi: Go to the reasons provided by the Acting Chief of Staff. I really want to put an emphasis on this.

Adv Mpofu: “EM was off sick and could not deal with it wherein reporting of progress on this matter was required at relevant Task Team Meetings held; EM in meetings and was not able to attend to work on it”. You think that can work for 18 months?

Ms Motsitsi: In meetings, is it a personal reason?

Adv Mpofu: Anyway, ma’am, let me put it this way. Do you think that it is fair to the public for somebody who's getting paid every month…

Ms Motsitsi: Before I do that, Adv…

Adv Mpofu: No, ma’am, just please listen to me first. Please. Can I finish my question. You can answer it when I’ve finished here.

Ms Motsitsi: Will you give me time to respond, Advocate?

Adv Mpofu: I will give you all the time in the world. Actually, the Chair, not me, will give you time. I'm saying that can a report where I don't know – about 20 or 30 missed deadlines – some of them imposed by the person themselves, are missed and you'd think that to say that someone was in a meeting or had a funeral, which hopefully takes about a week or two, can account for the 18 month delay. Is that your evidence?

Ms Motsitsi: Before I answer, I request that the Chairperson give me time to respond to this fully, so that we put it to rest. Thank you. Can we go to page 4252. These are the reasons that are given by an admitted attorney of the High Court, Ms Ponatshego Mogaladi. I am going to read that.

Adv Mpofu: No, ma’am. I am sorry. No. No. No, please. We're going to go to that document. I'm not there. That document is dated 16 November. Can you see that?

Ms Motsitsi: Adv Mpofu, number one…

Adv Mpofu: I am not asking you about this. We're going to go to it, Madam, I'm assuring you. I'm talking about the period prior to this. We will go to it. Believe me. I'm saying to you before we even go to November 2018 which we will come to, and I'm giving you my word. Okay? Do you think… I'm asking you a simple question whether from May 2017 to October 2018, let's forget about November for now, a series of 20 or 30 excuses and missed deadlines in one matter, because someone was in meetings or had a funeral or whatever – do you think that is fair to members of the public?

Ms Motstisi: Firstly, you said this matter took five years. I don't see how 2015-19 results in a five year period. That’s my number one.

Adv Mpofu: Okay, I said… Okay, wait, ma’am.

Ms Motsitsi: Number two, I have requested that you give me time to give you reasons from the horse’s mouth.

Adv Mpofu: No, that was later. We’re coming to that. I’ve just told you we’re coming to it. Please, ma’am. I can’t do this, honestly. Can you please answer the question that is put to you? I’ve given you assurances that we will go to that letter. I don't know what more you want me to do now.

Chairperson: Just pause Adv Mpofu. I hear you but I want to recognise a hand. Adv Mayosi?

Adv Mayosi: Chair, can I just point out that this document was uploaded at Bundle H item 25 at 9:30 this morning whilst these proceedings were already underway, that's the first thing. The second thing is that this witness has answered this question and her answer was that it is not fair for an investigation to take that long. However she qualified her answer to state that there may be other factors. This question has been answered, Chair.

Adv Mpofu: Chair? I don't know what she's talking about. Well, firstly it was not true, the document was not loaded at 09:30, it was loaded at 08:00. But let's put that aside. It was indeed loaded this morning. But that's irrelevant to the question. I'm saying I don’t need a document. I could say to the witness there was a delay from May 2017 to October 2018. You don't need a document to calculate how many months that is. Okay. So that's the point I'm putting to the witness. I can ask a child outside, they'll tell you May, June, July, August, September, then we know how many months. That's the point I'm making. Okay. As far as the… that’s why I'm deliberately leaving it to October, because I'm avoiding the debate about talking about November. Because I've told the witness that I'm going to go into the November situation. I'm just building up to it. So I don't know where the problem is here. Ms Motsitsi?

Chairperson: Just a pause, before you proceed. I see a new hand. Adv Mayosi?

Adv Mayosi: Just as a final point on this issue, Chair. This document ought properly to be canvassed with Ms Pona Mogaladi. This opportunity has been lost.

Chairperson: Okay, point taken there. Adv Mpofu?

Adv Mpofu: You know… No, Chairperson. This is ridiculous. You know, I have explained, we have had documents loaded. One of them was even loaded after the evidence was given by the evidence leaders because it was demanded by Members and we didn't cry about it. We have had statements which were supposed to be given to us seven days before, giving to us two days before – we've never cried about it. So to come here and tell us that that document which I'm saying… Okay, let's forget the document, Chair.. Literally just leave the document. Ms Motsitsi, would you agree that if a person gives excuses from a period of May of the preceding year to October of the following year, any year, it could be 1911, and gives excuses for that long period; misses their own deadlines about 30 times demanding. That report cannot be classified as a rushed report? Yes?

Ms Motstisi: You don’t want me to read the reasons provided. You don’t want to listen to me.

Adv Mpofu: What do you mean I don’t want to, when I just told you that we’re going to get there?

Ms Motsitsi: If you have 40 lever arch files, that would require, now I am speculating, to interview complaints. You would shift those dates as the investigation is unfolding, so long as you are responsible and you give updates and progress reports to the Public Protector, to your manager, to your supervisor. That is my response to that question. As to what happens, that she was sick or whatever, when I asked for explanation – this is what I got and I applied my mind to what I received.

Adv Mpofu: Alright, let’s do that. Let me show you. You mean when you give the deadlines you don't know that you have 40 arch lever files? You only discover that after 17 months?

Ms Motsitsi: When you go through those arch lever files you discover that there is more information or clarity meetings that you still have to hold.

Adv Mpofu: Sorry, just pause, ma’am.

Ms Motsitsi: Adv Mpofu, you don’t want to listen to me.

Chairperson: Okay, just pause Adv Mpofu and Ms Motsitsi. We will take a ten minutes break. Then you can go through those arch lever files.


Chairperson: Welcome back from the tea break. Adv Mpofu, let me give you an additional 30 minutes.

Adv Mpofu: No, Chair, now you are being unfair. You know what I am dealing with here. You can’t give me 20 minutes, that will be like giving me one question. Let's see how we can go. I'll push maybe up to 12 and we can look at it that time. I'm suggesting. I just have one big section to deal with. But it's not in my hands. You can see that.

Chairperson: I’m giving you thirty minutes.

Adv Mpofu: Thank you Chair. I’ll try to move it up. Ms Motsitsi, I’m asking you please to listen my questions and answer them. And if you can help it, just answer the question and then when you need to elaborate, you can say so. Ask for the time from the Chair. Not from me. I won’t give you from my 30 minutes. But please, I'm really on my knees. Okay. Now let's do this. Maybe to assist you. I've given you the background to the serial missing of deadlines in the PEU matter. I'm now going to deal with your favourite letter. Okay go to 4252, the one you love so much.

Ms Motsitsi: Which one?

Adv Mpofu: 4252, the one you love so much. Alright now you say that this came from an admitted attorney and so on and so on. Now this document is sent. Let's get the sequence right so that you can work with me here. Okay, firstly, from the document that we looked at earlier, you know that there was a deadline somewhere, I think on 2 November 2018. Do you remember that?

Ms Motstitsi: 2 November?

Adv Mpofu: It’s the one that Ms Mayosi said was put up at 09:30. Do you see that there was a deadline for 2 November?

Ms Motsitsi: I see that.

Adv Mpofu: Right. So let's take it from there. Let's say that deadline was obviously not met. Correct?

Ms Motsitsi: It seems like, yes.

Adv Mpofu: Now go to 4250.

Ms Motsitsi: Yes.

Adv Mpofu: That deadline, having been missed… then this is what Ms Mogaladi does on the 6th, four days after the deadline, correct?

Ms Motsitsi: Yes, she sent the email.

Adv Mpofu: She is writing to you?

Ms Motsitsi: Yes.

Adv Mpofu: She says, “Attached hereto, is the draft Section 7(9) letter of PEU. As stated I'm still working on the draft and it is still incomplete. And I'm not happy that it must be sent out.” This is now let's say four days after the 30th deadline. You see that? Are you still with me, ma’am?

Ms Motsitsi: Can you hear me?

Adv Mpofu: I can hear you, ma’am. I am going to ask my assistant to count the deadline, so I don’t mislead you. Four days letter, she says she is working, it is still incomplete and she is not happy. That’s 6 November. Alright? I think you are frozen now, ma’am. Chair, her freezing time is not part of my 30 minutes.

Chairperson: Ms Motsitsi, can you hear us?

Ms Motsitsi: Let me try and move.

Secretary Thembinkosi Ngoma: Maybe we should advise her to switch off her video when she is back, Chair, as she did mention that her bandwidth is low because of load shedding.

Chairperson: Okay.

Ms Motsitsi: Yes, I am back. I hope I won’t have any challenges.

Chairperson: If there are more challenges, switch off your camera. Adv Mpofu, are you back?

Adv Mpofu: Yes, Chair, I am back.

Chairperson: Ms Motsitsi is back. Please go ahead. I hand over to you.

Adv Mpofu: Ms Motsitsi, we were at 4250. The deadlines that were missed, I was saying 30 but there were 25 deadlines missed, according to my assistant. So let's say this was now deadline number 25 on the 2nd. So now I'm saying on the 5th, Ms Mogaladi says to Ms Motsitsi, she is still working on the draft, she is not happy; it is not incomplete and not happy that it must be sent out. Now then ten days later, ma’am?

Ms Motistsi: So you say this was the 24th deadline that she was missing?

Adv Mpofu: Yeah, I'm saying it's more than 20 of those deadlines that you and I went through in that red column.

Ms Motsitsi: Can I see those deadlines?

Adv Mpofu: You can.

Ms Motsitsi: Thank you. Why is it the 24th deadline. Can you count them, Advocate?

Adv Mpofu: Ma’am, you’re going to waste my time now, but I’ll do it. You can take it for granted.

Ms Motsitsi: I can’t take it for granted.

Adv Mpofu: Yeah but can you… I don’t think we have time for that, ma’am.

Chairperson: Ms Motsitsi, I don’t think the question is look at each one by one. I don’t want to spend time counting each one.

Adv Mpofu: In fact, Chair, let me make it easier for you – the evidence leaders will count it for you, ma’am. After the many deadlines…

Ms Motsitsi: Yes, rather say that.

Adv Mpofu: Yeah, many deadlines. On 6 November, four days after the deadline of 2 November, she says she is still working on the draft, and its incomplete and she’s not happy it must be sent out. She said that to you, correct?

Ms Motsitsi: Yes.

Adv Mpofu: Okay. Good. Then 10 days after that, we can then go to your favourite letter at 4252.

Ms Motsitsi: That is ten days later, yes.

Adv Mpofu: Okay. 10 days after that, she then gives this long story that you saying. She says that, to save you time, one of thing she says that it includes 40 arch lever files. That the story you told us and as I said it always included 40 arch lever files. Then number two, she talks about the set aside contract with AfriSake (now known as Sakeliga). That’s the next paragraph. I am just paraphrasing.

Ms Motsitsi: Yes.

Adv Mpofu: The third one she talks about they were investigating the termination of the contract and the mutual agreement. Then later she talks about the court proceedings. Number five, she talks about the different mandates, and all that. Then she talks about the City of Tshwane. Do you see all that?

Ms Motsitsi: Yes, I see that.

Adv Mpofu: Then she says, “I know the PP, we’re doing the work of the investigators”, obviously that is one of the things that the PP didn’t want people at that level to be doing?

Ms Motsitsi: Yes, that is true.

Adv Mpofu: Yes. then she says, “Once again, our sincere apologies. On a lighter note, the blood of Administrative Justice and Service Delivery (AJSD) is on the top layer of the skin. So we're hoping that based on our overall performance and efforts, the Public Protector will forgive us and the whipping stick can remain under the PP’s table until Monday.” Do you see that?

Ms Motsitsi: Yes.

Adv Mpofu: So she's now imposing her own deadline to Monday.

Ms Motsitsi: That is her own deadline.

Adv Mpofu: Yes, absolutely. And we know that those ones must be obeyed, correct?

Ms Motsitsi: Yes.

Adv Mpofu: So that's the 16th. It's a Friday, ma’am.

Ms Motsitsi: Yes.

Adv Mpofu: Go to 4251. If you look at it in that context. Then after all those long stories, the PP responds at 07:55. That is about two hours after the long letter of the admitted attorney. Okay? Are we still together, ma’am? I think there is a problem with the network again.

Chairperson: Ms Motsitsi?

Ms Motsitsi: Yes, I can hear Adv Mpofu.

Adv Mpofu: Let’s take Thembinkosi’s advice… You can switch off your video. I was saying, two hours after the letter that we've just gone through, which was where she imposed her own deadline. The Public Protector answered at 07:55. Can you see that?

Chairperson: Ms Motsitsi, can you see?

Ms Motsitsi: Yes, I can see.

Chairperson: Please switch off your camera.

Adv Mpofu: Alright. Ma’am, I was saying that at the bottom of that at eight o'clock, the Public Protector now responds. I'm saying let's keep the perspective now. Not only has that deadline not been met. Remember one of the deadlines in the document was actually 16 November?

Ms Motsitsi: The 16 November where she gave an explanation? Yes.

Adv Mpofu: Yeah. No, I’m saying she missed the deadline of the 2nd. The 16 November was another deadline.

Ms Motsitsi: Yes.

Adv Mpofu: Okay, so now she's writing at 06:00 in the morning because she wants to miss that deadline of the 16th. You understand?

Ms Motsitsi: Yes.

Adv Mpofu: Yeah. She then says, ‘I know I have this deadline of today". At 6.00 she says, “spare the whipping stick” and “I’ll give it to you on Monday.”

Ms Motstisi: Yes.

Adv Mpofu: Okay. This a new deadline missed. It’s in that context that the Public Protector then responds two hours later and says, “Good morning Ms Mogaladi and team. AJSD”, that’s her unit, “must focus on the conduct of officials COT, the evidence we have acquired from COT and not use affidavits or reports from other sources." Okay, so she's giving them guidance, correct?

Ms Motsitsi: Yes.

Adv Mpofu: Then she says, “always remember, the Public Protector report is meant to address the root cause of the impropriety and redress to those affected by the conduct. I expect the section 7(9) by the end of business today. Extension not granted”. In other words, the 26th extension that she's asking for is now not granted because she's giving this guidance. It is in that context, that there’s still a full day ahead. It’s 08:00 in the morning. She says she wants it by the end of the day, so it is another extension of some sort. Correct?

Ms Motsitsi: Correct.

Adv Mpofu: Then that is not done. The instruction from the PP is ignored again. Correct?

Ms Motsitsi: Correct

Adv Mpofu: It’s ignored again. We saw in the other report that instructions were ignored, or deadlines were ignored. Now it's the Public Protector’s instruction that is being ignored, correct?

Ms Motsitsi: Yes.

Adv Mpofu: So it's a Friday. Okay?

Ms Motsitsi: Okay.

Adv Mpofu: Then on the Monday, the thing has still not – granted in the morning – where Ms Mogaladi put her own deadline. You understand?

Ms Motsitsi: On the Monday? That is when she gets legal advice from Legal Services, isn’t it?

Adv Mpofu: No, no. The legal advice is…

Ms Motsitsi: Oh, on Tuesday.

Adv Mpofu: Let’s follow each other properly. On the Monday morning, the PP has now been defied twice in one day. She didn't get the thing on the 16th. She didn’t get it at the end of business when she asked for it. Saturday nobody says anything. Sunday nobody says anything. Monday at 9:20, she now says 'I've now reached a breaking point of tolerating these 25 deadlines'. She writes to the CEO at 09:20 “This undermining by the executives has reached a point where I cannot tolerate”. Do you see that, ma’am? She’s gone again, Chairperson.

Chairperson: Yes, she’s out. Let’s pause for a few minutes. Apologies for the breaks.

The meeting was adjourned for an early lunch until 12:10.


Ms Motsitsi: I am back. Sorry about that.

Chairperson: That’s fine. Adv Mpofu, are you back?

Adv Mpofu: Yes, Chair.

Chairperson: Let’s do this. Its 12:15, please go ahead.

Adv Mpofu: Good afternoon, ma’am.

Ms Motsitsi: Good afternoon. Sorry about the interruption, Advocate.

Adv Mpofu: No, it’s fine. Alright. Just to recap here. You remember we spoke about the, let's call it the many deadlines?

Ms Motsitsi: Yes.

Adv Mpofu: And we spoke about the deadline of 2 November. Then we spoke about the deadline of 16 November, in the morning. Then we talked about the extended deadline to the close of day on the 16th. Correct?

Ms Motsitsi: Yes.

Adv Mpofu: Then we talked about the self-imposed deadline of the 19th by Ms Mogaladi, correct?

Ms Motsitsi: Yes.

Adv Mpofu: Then we spoke about the response by the PP?

Ms Motsitsi: Yes.

Adv Mpofu: That’s where we were. On the Monday at 9:20. The Public Protector, as I said had now reached the end of her limits; understandably in my view. I am sure you would agree?

Ms Motsitsi: Yes.

Adv Mpofu: She then says, “This undermining by the executives has reached a point I cannot tolerate”. Do you see that?

Ms Motsitsi: Yes.

Adv Mpofu: Then she says, “The Section 7(9) was not sent on Friday”. Now that would include even the second deadline of Friday evening. Okay?

Ms Motsitsi: Yes.

Adv Mpofu: “Can the final written warning be served on the Executive Manager: AJSD”, that is Ms Mogaladi, “and ACOO (Acting COO)”, that is you, “for not also ensuring that the supervisor that is done per my instruction. I want to see the warning letter by 15:00 this afternoon”. I was saying in perspective, what really happened here is that the long letter was written. The PP rejected the deadline and put a new deadline. You were aware of the second deadline because you were CC’d in that letter. Then you were also CC’d in this letter to the Chief Executive. Now the question I really want to ask you, ma’am is given all that, and the levels of tolerance and the extended deadline, and so on, can anybody really blame the Public Protector, if at 09:20 on Monday the 19th she had now reached the end of her limit of tolerance?

Ms Motsitsi: Yes. I spoke about the Public Protector’s frustration when it comes to deadlines and delivery of reports or notices. She was extremely frustrated. Advocate, you would have to understand that I am faced with two devils. The lesser devil is rather submit a properly drafted notice, which would not embarrass the Public Protector and PPSA. The worst devil is forcing Ms Mogaladi to issue those notices, which are incorrect and they embarrass the Office and the Public Protector. So it is two devils. That is confirmed by the advice that we are also getting from Legal Services that the lesser devil, it's much better than the worst devil of giving Public Protector a document that is not complete. Thank you

Adv Mpofu: Okay. Firstly, you haven’t answered my question. But secondly, I was asking you if you would agree that at this point at 09:20 on Monday the 19th when the report is still not there, then the Public Protector is justified to reach the end of her limit?

Ms Motsitsi: I just responded. I said she was extremely frustrated.

Adv Mpofu: I know she was frustrated. I'm not asking you that. I’m asking you whether she was justified given the history of the matter from May 2017 and all the extensions that she had given to reach the end of her limit?

Ms Motsitsi: She was justified, yes.

Adv Mpofu: Now the point that I'm making, ma’am is… let’s come to your devils. They're no two devils. There's one devil and it’s non-performance. And it's non-performance by someone against her own deadline. There is only one devil here. This was not a deadline that was imposed by the Public Protector. In the so-called long letter that you spoke about at the end of it, Ms Mogaladi imposes her own deadline of Monday the 19th, doesn't she?

Ms Motsitsi: Can I ask a question, through you Chair, to the Advocate?

Adv Mpofu: Yes, ma’am.

Ms Motsitsi: Was it better to issue that report if it was incomplete?

Adv Mpofu: No, ma’am. Please listen to the question. I am not saying…

Ms Motsitsi: Yes, she didn’t meet her own deadline. I agree with you, Advocate.

Adv Mpofu: Good, right.

Ms Motsitsi: Yes, but the worst thing is for her to submit a report. Legal Services has corroborated my view on the matter.

Adv Mpofu: No, ma’am. Legal Services does not come into it. We are on the 19th. Do you understand?

Ms Motsitsi: Yes.

Adv Mpofu: Okay? There is no Legal Services – it comes on the 20th. Don't mix up the dates. I was saying let's work together sequentially. There's no Legal Services story. I'm saying to you…I'm putting a simple proposition. I'm saying, forget about the bad Public Protector who imposes deadlines and what have you. This is Ms Mogaladi, who has now put her own deadline. She says, take the whip, put it under the… whatever the table. I will give you this on Monday. And she fails to do so. Is that…?

Ms Motsitsi: Justifiable, yes. It is justifiable for the Public Protector to be frustrated.

Adv Mpofu: Good. At that point, she has been defied by Ms Mogaladi and she has been defied by you. Because now on the Monday, you can’t say… because your evidence was that, no, ‘you were being victimised’, because you accepted Ms Mogaladi’s explanation. But that's not true because Ms Mogaladi’s explanation was that she's going to deliver the thing on Monday. Let's assume you accepted it; let's assume even the Public Protector accepted it but she failed to deliver on the explanation that you had accepted as well. You understand that?

Ms Motsitsi: I didn’t defy the Public Protector. I was protecting the Public Protector. I was protecting her. Whatever I was doing was in no way defiance. It cannot be interpreted in that way. It cannot.

Adv Mpofu: Okay, ma’am. Let’s start with Ms Mogaladi. What do we call a person who is told by her boss, ‘I want this by six o'clock on Friday’ and they don't do it? What do you call that?

Ms Motsitsi: She could have submitted that report, and it could have been sent by the Public Protector. And that could have been the worst situation for me.

Adv Mpofu: Yes, that’s fine. Let’s leave that situation because it didn’t happen. Let’s deal with the one that did happen. What do you call it when someone is told by the boss, six o'clock on Friday, please give it to me and they don't give the thing and they don't even give an explanation?

Ms Motsitsi: At some stage she did submit that Section 7(9), which was incomplete, which she was not happy about. She could have submitted it. But because our interest was to protect the Public Protector. Her interest at that time, she wanted to protect the Public Protector and PPSA. In my case, Advocate, to be fair, I was not defiant towards the Public Protector. I always respected the Public Protector and I followed up on whatever she needs.

Adv Mpofu: Okay, I'm asking for the third and the last time because we don't have time. What do you call the actions of Ms Mogaladi, who was told in no uncertain terms in writing by the Public Protector that 'I want the report by 6pm by the end of today' and fails to do so; goes home on the weekend, and still does not deliver it on her own deadline of the Monday?

Ms Motsitsi: Non-compliance with her deadline, which she volunteered. It’s non-compliance with that.

Adv Mpofu: And that’s wrong.

Ms Motsitsi: But you must justify it.

Adv Mpofu: How? How do you justify it?

Ms Motsitsi: If she had submitted that very first Section 7(9) notice, which was not satisfactory, which she was unhappy with – it was going to be a worse situation, not only for her, but for the PPSA as a whole.

Adv Mpofu: You’re talking about the one on the 6th? We’re not there, ma’am, we are now thirteen days later.

Ms Motsitsi: Yes, I am saying that report, which was not complete. This is when I come to malicious compliance. Where a person will miss a deadline – but in this case, she went further and sought legal advice so that she can submit a properly drafted report which will not embarrass not only the PP, but the PPSA. A report I will own as a whole, as Acting COO.

Adv Mpofu: Okay. So you don't want to answer the question? You don’t know what she did?

Ms Motsitsi: Its non-compliance. I called it non-compliance.

Adv Mpofu: Alright, good. I think we have made progress on that one. Then on the path that you seem to be wanting to go to. On the 20th, now this is I don't know, four days after the deadline has been missed and her own deadline has been missed. It's now the following day and then you suggest she draft a memo to the PP and advise her, we’ve gone through that. She must provide her with timeframes for finalisation. In other words, you were now even again asking her to basically put her own deadline again. Correct?

Ms Motsitsi: Yes, I was saying based on… we had a discussion. She came and we had a meeting and she gave me the circumstances and the progress made in this investigation. I said, you know, rather we give PP a realistic timeframe, I think in this email I say, “I suggest that you draft a brief memo to PP and advise her that after thorough analysis of the contents of the file, PPSA has an obligation to give those implicated in the investigation, an opportunity to respond to the allegations made against them. Provide her with timeframes for finalisation of the case.”

Adv Mpofu: Okay, then on Tuesday, again, she writes to Mr Nemasisi. Nemasisi advises that the Section 7(9) should be given. Correct?

Ms Motsitsi: That is page 4256?

Adv Mpofu: 4256 at the bottom.

Ms Motsitsi: She says, “we were investigating the City of Tshwane (COT), but during an investigation, it appears…”

Adv Mpofu: There is a word missing there. It should be ‘if it appears’.

Ms Motsitsi: Oh, “if it appears to the Public Protector that the Municipal and Members of the Bid Committees, for example, are being impacted in the matter being investigated and therefore, in terms of Section 7(9)(a), of the Public Protector Act, they must be given an opportunity to respond to the allegations in any manner, which is expedient in the circumstances”.

Adv Mpofu: Right. In other words, he just repeats what the section is – that they must be given the Section 7(9). Correct?

Ms Motsitsi: Yes.

Adv Mpofu: Okay. Then the legal advice thing doesn’t help her because it says she must do it. Then on the same day – this is now Tuesday afternoon,

Ms Motsitsi: Yes. Tuesday?

Adv Mpofu: 4255, ma’am. I mean you've been trying to insist on this person and she's not complying quite frankly. And then you say somewhere at the bottom of the first paragraph, “for instance, you may need to interview the implicated officials, they might want to see you face to face and you must give them an opportunity to respond before issuance of the notice.” Then you say “I needed you to disclose this fact to the PP, so PP would know that this matter has a chance to go away over December.” Again, you’re saying that rather than keeping quiet, which is really intolerable in a working situation, rather communicate to the PP. Is that what you were doing there?

Ms Motsitsi: Yes, I said keep communicating, keep communication channels open, no matter the final written warning we got. But keep communicating.

Adv Mpofu: Alright. Then at 17:30, which is after hours, she gives you the same story she gave you on the 6th. “…I referred to is related to submitting a Section 7(9) letter that I know can easily land us in trouble and was not referring to the memo to PP. I will draft the memo…”. Again, it shows that from the 6th to the 20th, she is still singing the same song about a memo that will land us in trouble, despite the fact that she had said that she was going to produce it on the 19th. Do you see that?

Ms Motsitsi: Not the memo. She said, ”I have noted the email, the malicious compliance that I referred to is relating to submitting a Section 7(9) letter that I know can easily land us in trouble and was not referring to the memo to PP”.

Adv Mpofu: Yes, I have just read that. I’m saying it is the same song she had been signing fourteen days before.

Ms Motsitsi: It’s a Section 7(9) notice here. She’s saying that Section 7(9) may easily land us into trouble.

Adv Mpofu: Yes. She says after she has failed to meet her own self-imposed deadline. Correct?

Ms Motsitsi: Then she says, “I will draft the memo and submit it tomorrow”.

Adv Mpofu: No, ma’am. I am not talking about a memorandum. I am talking about a notice. She talks about the notice landing us in trouble after she has missed her own self-imposed deadline. Correct?

Ms Motsitsi: Yes, we agreed on that, Advocate, that she missed her own deadline.

Adv Mpofu: Okay. Now given what you and I have discussed, do you still think that it is justifiable to use this example that we've gone through now, as an example of what you call 'rushed reports'?

Ms Motsitsi: I’d rather submit a properly drafted report, than a report that will land us in trouble. That's why I spoke about two devils here.

Adv Mpofu: No, ma'am, please. I'm asking you a simple question. Given the history we have spoken about from 17 May, up to where we are now and missing of deadlines and ignoring of deadlines, and not communicating, missing your own deadlines, and so on. I'm saying for a matter that had been submitted in 2015, it is now in its fourth year of being in the pipeline. It’s almost doubled the two-year mark.

Ms Motsitsi: 2015-18 doesn’t make it four years. Its three years.

Adv Mpofu: How many years is 2015?

Ms Motsitsi: 2015, 16, 17.

Adv Mpofu: Yeah. 15, 16, 17, 18. This is the end…

Ms Motsitsi: No. One year ends in 2016, the second year ends in 2017, the third year ends in 2018.

Adv Mpofu: It was May 2015, correct?

Ms Motsitsi: I am not sure about the month.

Adv Mpofu: I’m sure. I am telling you.

Ms Motsitsi: Even if it's like that, it doesn’t make it four years. It doesn’t.

Adv Mpofu: I am saying it was in its fourth year, ma’am. Let’s not quibble over nonsense. I am saying that it was in its fourth year.

Ms Motsitsi: No, it was not.

Adv Mpofu: 2015-2016, how many years is that?

Ms Motsitsi: It is three years. If you give birth in 2015, the child will be one year in 2016.

Adv Mpofu: Okay, in May, and the child will be in his fourth year in November 2018. Correct?

Ms Motstisi: Three and a half years. Not the fourth year.

Adv Mpofu: Alright. Okay. By the end of the fourth year, which was 2019, had the report been given, to your knowledge?

Ms Motsitsi: Yes, the matter was finalised but I was no longer Acting then. But I am not sure of the date of finalisation.

Adv Mpofu: Well, it was 2020.

Ms Motsitsi: Oh, thank you.

Adv Mpofu: Yeah, so that was in the fifth year, agreed?

Ms Motsitsi: When it was finalised?

Adv Mpofu: Yeah.

Ms Motsitsi: I accept that. I can’t argue with that.

Adv Mpofu: Thank you very much. Alright. I am saying that a report like that, which is finalised five years later, you think it belongs to the category called rushed reports?

Ms Motsitsi: It couldn't be rushed this report based on the background that we have already discussed at length.

Adv Mpofu: Thank you very much. Chair, I am wrapping up. You said it was tantamount to victimisation. Tantamount means, I suppose…

Ms Motsitsi: Equals to.

Adv Mpofu: Oh, equals to. Given this whole background, when you were then given a letter on 20 November four days after…

Ms Motsitsi: Sorry, Advocate, I just want to take you to ‘tantamount’ because I want to read everything in context.

Adv Mpofu: You want to take me?

Ms Motsitsi: No, I want to read everything. I just want to go to that word tantamount. Why I felt that I was being victimised.

Adv Mpofu: That is what I was taking you to, ma’am. Let’s take it step by step. Let’s start at 59. You say the PP merely insists that investigation must be rushed. I've already covered that point but for you, an example of a rushed… you mention as much to Ms Mogaladi in the email correspondence. That is the one we have just spoken about, okay?

Ms Motsitsi: Yes.

Adv Mpofu: Firstly, that's not true. You never said anything about rushed reports in that correspondence. But let’s leave that. That’s just false.

Ms Motsitsi: That’s not false. That is true in a sense that I take over this report, as mine and there are those issues… that background that we deliberated on. I note that there are issues and I speak to the person. I sit down with the person, and I even say, you know what, even the deadlines that were given, they won’t make sense. Let's go to December, based on what you said was supposed to happen. Yes, it was rushed in my circumstances as Acting COO.

Adv Mpofu: Okay. I know but that is not what I am saying is false. What is false is… I have shown you that it is not rushed, but if you still think it's rushed, that’s fine – that is your business. You say “I mentioned as much to Ms Mogaladi in my email correspondence, at paragraph 55”. That's the correspondence we've just gone through. That is false. You never discussed rushed reports in that correspondence, but I'm not making a thing about it for now. It’s just false evidence, but that’s fine. We can move on. Okay?

Ms Motsitsi: I dispute that.

Adv Mpofu: Okay. Where, in that correspondence do you talk about rushed procedures? You can show us.

Ms Motsitsi: It is at paragraph 55. I'm also making examples after my discussion with Ms Mogaladi. I'm saying after our discussion, and based on what you have said, “you may need to interview the implicated officials they might want to see you face to face, you must give them an opportunity to respond before issuance of the notice. I need you to disclose these facts, so that PP knows that this matter has a chance to go way over December 2018.” So that is the point where I am saying you cannot rush this thing. I didn’t use the word ‘rushed’ exactly. I wanted to say that this can be prolonged. If you wanted me to say rushed, I didn’t put it in that way but I said it can be prolonged further than the due dates that you've been providing. If you're realistic, rather push it to December because of the steps that we've outlined in our discussion.

Adv Mpofu: Okay, so at least you and I agree that you did not refer to rushed procedures. Okay, that's fine. Let's go to…

Ms Motsitsi: I would say its implied in this paragraph.

Adv Mpofu: Here we go again. Thank you, ma’am. Okay, let’s go to 61. And then you say that “Mr Mahlangu was contemplating disciplinary action against me because I had considered Ms Mogaladi’s reasons for not complying with the PP’s demand and found them to be reasonable.” But that is also another lie. It's also false, correct?

Ms Motstisi: What is false there?

Adv Mpofu: Okay. I have just shown you… I am not going to go through it again, let me summarise it to you. The audi letter given to you was not accepting Ms Mogaladi’s reasons, which you found to be reasonable. Those reasons were compiled in the long letter and those reasons had already been rejected by the PP. What you were being disciplined for was allowing her to defy the PP, even on the extended deadline of the 16th. Do you understand that?

Ms Motsitsi: Can we go to the letter, Advocate?

Adv Mpofu: We have done that but we can go if you like. You will find it at 4252.

Ms Motsitsi: 4252? Thank you.

Adv Mpofu: I don’t know which letter you are looking for? Are you looking for…?

Ms Motsitsi: Mr Mahlangu’s letter.

Adv Mpofu: Okay, you’ll find that at 4259.

Ms Motsitsi: I am going to read it to you, Advocate, the whole thing. “The Public Protector gave an instruction to Ms Mogaladi to submit the PEU Section 7(9) by Friday 16 November 2018. Her instruction was not adhered to. As Ms Mogaladi’s supervisor, you were supposed to ensure that the said Section 7(9) is submitted to the Public Protector as per her instruction. You accepted Ms Mogaladi’s explanation despite the fact that you were aware of the Public Protector’s deadline where she explicitly indicated that no extension will be granted…” So that was my wrongdoing pointed out.

Adv Mpofu: No, go to the next paragraph. The wrong doing is in the next paragraph. Read it.

Ms Motsitsi: “You are required to give reasons to me not later than Friday 23 November 2018 why you did not ensure that, as Ms Mogaladi’s supervisor, the Public Protector‘s instruction was adhered to. Your response to this letter will determine whether further action will be taken against you." The thing is I accepted Ms Mogaladi’s explanation. I was told to take action against Ms Mogaladi. I did. She gave an explanation. My offence here is to accept Ms Mogaladi’s explanation. That is my offence. I shouldn’t have. I should have made sure that she complied with that instruction.

Adv Mpofu: No, ma’am. Please, please. I'm saying to you, the letter was written to you on the 19th at nine in the morning, that was after the thing about the explanation of the 16th. They say “you are required to give reasons why you did not ensure as Ms Mogaladi’s supervisor that the Public Protector’s instruction was adhered to.” That was long after. The explanation had already been rejected by the Public Protector. Do you understand that? Because the explanation was given at 6, in the morning of the 16th.

Ms Motsitsi: My offence, Advocate, I will repeat is that I accepted Ms Mogaladi’s explanation. You look at the word ‘despite’.

Adv Mpofu: Alright, Madam. That’s fine. The letter speaks for itself. You then said that the fact that you were being told here that you should have ensured that a person reporting to you adheres to an instruction of the PP, you regard that as tantamount to victimisation. Is that your evidence?

Ms Motsitsi: The victimisation here, is that I gave a person an audi, as I understand an audi, since we discussed yesterday. The person gave me an explanation and I accepted the explanation, which was reasonable. My offence here is accepting that explanation, and asking further can you please explain to the Public Protector, so that she can understand why I accepted this explanation. So my offence, according to this letter, is accepting that explanation.

Adv Mpofu: No, ma’am. You are wrong about that but I'm not going to debate it with you. I'm saying, do you accept that whatever the offence was, all that was being done is for you to give an explanation for that failure. Do you accept that?

Ms Motsitsi: Advocate, if Ms Mogaladi gave me an explanation and I did not accept it, would I still be served with a warning?

Adv Mpofu: Madam, please answer me the question. Was this letter, whatever you did, whether it was justifiable or not justifiable… I’m not there. I'm saying this letter, the purpose was to give you an opportunity to explain by 23 November, your reasons, good or bad or indifferent. Correct?

Ms Motsitsi: The fact that I am the supervisor who issues the audi, and I accept the explanation. Obviously Ms Mogaladi would rely on my acceptance of the explanation and I am going to draft a proper report.

Adv Mpofu: I'm saying now you're then – that's your very good reason – you are now being given an opportunity to…

Ms Motsitsi: For accepting it. Explain why you accepted it because she didn’t comply with this…

Adv Mpofu: Yes, yes. Let’s say it is about accepting. But all I'm saying is that you are now being given an opportunity to explain why you accepted her explanation.

Ms Motsitsi: Yes. That’s why in my explanation I am talking about the reasons she provided.

Adv Mpofu: Yes. No, ma’am. We’re coming to your explanation. I’m saying that the letter seeks for you to give a reason why you accepted the explanation of defying the Public Protector’s instruction, correct?

Ms Motsitsi: Can you rephrase defiance, because I said non-compliance. There is no defiance, its non-compliance.

Adv Mpofu: Fine, its non-compliance. You're being given a letter to give a reason why you accepted the reason for the non-compliance, correct?

Ms Motsitsi: Yes. Given the opportunity for the non compliance of submitting. Non-compliance is based on the fact that I have accepted Ms Mogaladi’s explanation: 'why do you accept Ms Mogaladi’s explanation'.

Adv Mpofu: Yes, ma’am. On your version, which you have just described now is what you call ‘victimisation’. Being given an opportunity to explain why you accepted Ms Mogaladi’s explanation. That you say is victimisation?

Ms Motsitsi: Adv Mpofu?

Adv Mpofu: Yes, ma’am?

Ms Motsitsi: If you issue an audi to the subordinate as the direct supervisor, and a person gives me an explanation and I accept it. Why am I being charged now and being given a written final warning for understanding…

Adv Mpofu: No, you were not being charged. You were asked to give a reason. It is an audi letter.

Ms Motsitsi: Yes, because the explanation was acceptable to me and it made sense – taking into account submitting an incomplete report or submitting a report which later would withstand scrutiny. That’s where I was. I would rather protect the Public Protector so that she issues a credible report that has integrity, is well-researched and we can all own that report. That was my mistake.

Adv Mpofu: Good. I’m saying now, ma’am, for the last time. Being asked to give that good explanation you have just given now: good research, et cetera. Being asked to do that, you call that victimisation? You have just done it now. Did I victimise you when I asked you to give that explanation?

Ms Motsitsi: Advocate, let’s look at this matter this way. And let’s say I have two managers and assistant managers. The assistant manager doesn't perform. The manager is the one who spoke to the assistant manager. Then there is a senior manager. Now this pattern, it shows that I should issue an audi to the senior manager: ‘why are you not taking action against the manager’, and the manager must issue an audi against the assistant manager. So it goes and goes and goes and goes…

Adv Mpofu: No, ma’am. It is not about ‘goes and goes and goes.’ I am saying here, in this example.

Ms Motsitsi: I am trying to explain Adv Mpofu.

Chairperson: Sorry. I’d like to ask you to give short answers, as we no longer have time. I am asking you to respond with sharp responses.

Adv Mpofu: Thank you, Chair. I appreciate that. Madam, I'm literally going to give up if you don't answer me this time. I'm saying if I say… or the Chairperson, let me take myself out of it. The Chairperson says to you, Ms Motsitsi, we’ve heard all these stories from Adv Mpofu, can you, in your own words, tell us why you did not take action against Ms Mogaladi, and then you say all the good things you just said… Can we then say that the Chairperson was victimising you, by asking you to give that explanation?

Ms Motsitsi: No, the Chairperson doesn’t accept my reason. He is supposed to…

Adv Mpofu: No, he’s not rejecting. He’s saying give me the reason. We haven’t gotten to the stage where he's going to reject it. If he rejects it, maybe he's victimising you. All he is doing now is simply to say just give me the explanation. We'll see what he does with it later. We're still at a point where all he has done…The only sin he has made is to say to you, ‘give me the explanation.’ Is that victimisation? Okay, let me put it differently. Ma'am, what do you understand by victimisation? What is victimisation?

Ms Motsitsi: Before we get to that, Advocate, because Ms Mogaladi gave her explanation and I made sure that that explanation goes to the Public Protector. And I was supposed to get from her that 'I don't accept this reason because now really you have to take action against this person'. But the thing is the explanation is so reasonable and understandable to the extent that it's corroborated by Legal Services.

Adv Mpofu: No.

Ms Motsitsi: Yes.

Adv Mpofu: Okay, I give up. Legal Services came on the 20th, Madam. I have shown you this. You can't use an explanation of Tuesday for something that was done to you on Monday. If you don't understand that, then we're not going to be talking about the same thing. The audi letter that was given to you was in relation to your failure on Monday. There's no Legal Services story there. Okay, anyway. Chairperson, I don’t think it's going to get us anywhere. I think the point is made. Are you prepared to favour us with what you understand to be victimisation?

Ms Motsitsi: I'm being victimised because I am doing my job and I'm making sure that I'm protecting the institution and the Public Protector. But despite that, the audi keeps coming. Despite that, I am accused of not performing. That is victimisation.

Adv Mpofu: Ma’am, you were not accused. You were asked to give a reason. Where is the victimisation?

Ms Motsitsi: Adv Mpofu, what is not understandable by the explanation given by me? What is not acceptable? That letter was sent on the 19th but it was signed on the 18th.

Adv Mpofu: I know. That’s even good for them. They withheld for another two days. It was only given to you on the 20th.

Ms Motsitsi: Because now Ms Mogaladi was already engaging. That is the reason that I'm saying despite the fact that whatever decision I took, I made sure that I considered everything and now it's corroborated by Legal Services. Whatever she told me, it made more sense. That’s why I am talking about two devil in this case. I had to opt for the lesser devil.

Adv Mpofu: Okay. Why did you send an audi letter to Mr Ndou?

Ms Motsitsi: Which page, Advocate?

Adv Mpofu: 4225. I am now skating on thin ice with the Chairperson. No, sorry. Forget about that, ma’am. Before the Chair stops me, let’s quickly go to Ms Mosana. You were aware that Ms Mosana disrespected the Public Protector, correct?

Ms Motsitsi: I was made aware as the COO. What happened is… I don’t know what happened on the Saturday.

Adv Mpofu: Ma’am, were you aware that Ms Mosana disrespected the Public Protector. Yes or no?

Ms Motsitsi: Yes.

Adv Mpofu: Good. You were also appalled by her calling the Public Protector by her first name; which not even you would do that, correct?

Ms Motsitsi: I would not do that because she has made it clear to all of us, that ‘nobody is allowed to use my name.’

Adv Mpofu: Yes. I'm saying if that was made clear, were you therefore equally appalled that Ms Mosana had done so?

Ms Motsitsi: I responded to that. I said yes. And I gave justification that this was made known to all of us.

Adv Mpofu: Yes, I know. Alright. And then you also were similarly aware that she did not do her job?

Ms Motsitsi: I was not aware. I was informed by the Chief of Staff and Senior Manager: HR when I inquired because I wanted to know exactly what happened.

Adv Mpofu: Yes, you became aware. I'm not saying you were aware directly you were made aware. Correct?

Ms Motsitsi: Yes.

Adv Mpofu: Yeah. And those were the reasons for the breakdown in the relationship. You even arranged coaches for Ms Mosana. Correct?

Ms Motsitsi: I can’t remember that part but that is the normal route that I would take before taking any disciplinary action or terminate a person.

Adv Mpofu: Yes. You sent messages to the Public Protector, indicating basically that Cleo was out of order in disrespecting her. Correct?

Ms Motsitsi: Yes, that’s what I mean by saying when she told me it was unacceptable.

Adv Mpofu: Yes, that’s what I am saying. So why then, do you give a slant when you are giving evidence to the Committee here. Why don't you tell the Committee that you yourself were troubled or you disapproved of the actions of Ms Mosana. You want to portray her as some victim but you…

Ms Motistsi: No, no. Here remember the transgression is not against me, and I am not the supervisor. Here I even testified against Ms Mosana… I went to the CCMA. But the issues of the transgression and underperformance were not part of my testimony. My testimony is about why I did not sign the offer. I had to explain that. That was my role in this whole matter.

Adv Mpofu: Yes, and when were we going to find out as the Committee that you testified against Ms Mosana at the CCMA, for example?

Ms Motsitsi: When you asked me.

Adv Mpofu: I see. So that kind of important information and perspective, we only get when we ask you, but the others you volunteer?

Ms Motsitsi: No, Advocate. My role here is about signing the offer. That is my evidence here and against you. At the CCMA and at administration I testified about those things – the issue of an offer. My role started with the offer I refused to sign which made Ms Mosana not to move to CSM (Communication and Stakeholder Management) until the matter was resolved.

Adv Mpofu: Okay. No, I'm making a different point, ma’am. That the people that you're making out to be angels now, you were even prepared to testify against them.

Ms Motsitsi: No, no, no. There's no preparation. What is told, you do. There is no preparation. If you read that email, where I was instructed to go and testify. You are told to testify and you go and testify.

Adv Mpofu: Okay. No, that is fine, ma’am. Did you find that Pona lied at the bargaining forum?

Ms Motsitsi: Did I find what?

Adv Mpofu: Did you accuse Ms Mogaladi of lying at the bargaining forum?

Ms Mostisti: Lied about what?

Adv Mpofu: I don’t know. You said “Pona lied. I told them they always gave me a feeling of not representing the employer” It's a message you sent the Public Protector: Mogaladi lying at the bargaining forum.

Ms Motsitsi: Can I see the message, Advocate?

Adv Mpofu: Okay. You don’t remember accusing Mogaladi of lying?

Chairperson: Adv Mpofu?

Ms Motsitsi: I don’t remember Advocate. But can I see the message or can you send it to me?

Adv Mpofu: Yeah, it will be sent to you. If you don’t remember, you don’t remember.

Adv Mayosi: Chair? We would also like the benefit of whatever it is Mr Mpofu is reading from and putting to the witness, please?

Chairperson: I did not recognise you, Adv Mayosi. Adv Mpofu, I was saying that I want you to wrap up now but before that, I see the hand of Adv Mayosi. Adv Mayosi, you have your hand up?

Adv Mayosi: Thank you, Chair. I was saying, Chair, that we would like the benefit from whatever it is Mr Mpofu was reading from and he was putting to the witness.

Chairperson: Okay, thank you. Would you be able to share that, Adv Mpofu?

Adv Mpofu: Yes, Chair. Okay, please give me two questions, Chair. Ma’am, you have promised us the audi letters. Just a quick one. You confirm that one of the innovations that were brought during the era of Adv Mkhwebane, was what you have referred to as those Memoranda of Understanding with various bodies: NSFAS, City of Tshwane and so on – so that you could offload some of the complaints to them, correct?

Ms Motsitsi: The institution was already entering into various MOUs for training for investigations, sharing of information, sharing of platforms. When I took over as Executive Manager, I entered into other MOUs. Yes.

Adv Mpofu: Okay. I was just saying it was introduced by her, but I think what you're saying when you got there, it was already in place?

Ms Motsitsi: Yes, it was already in place.

Adv Mpofu: Okay, we will deal with it when the Public Protector testifies. Thank you, Chairperson, I don’t want to start a new topic. Thank you. Sorry, just one second, I am just getting an instruction.

Chairperson: Tell them that your time is up. Thank you, Adv Mpofu.

Adv Mpofu: No, no Chair. Sorry, one more thing. Ms Motsitsi, did you complain about one of the people you made yourself a spokesperson for, which I ignored because she's not giving evidence, so it's worthless, as I explained. Yeah. But again, just with the theme of portraying these people now as angels, as I call it. Did you complain repeatedly about Ms Sekele particularly about that incident where she kept boxes of an investigation in her office for months without being attended to? Did that make you mad, sorry, did that make you angry?

Ms Motsitsi: Okay, let me clarify that fast. When Ms Sekele and Ms Mogaladi were suspended, the Gauteng PR (Provincial Representative) was transferred to Head Office and she occupied Ms Sekele’s office, and she discovered those files. So obviously, if those files were in Ms Sekele’s office, we had to disclose that these files were discovered that the PR brought to me, and we escalated and had to redistribute them, so that I can explain fast.

Chairperson: Okay, thank you. Adv Mpofu?

Adv Mpofu: Sorry, Chairperson. Ms Motsitsi, please, you haven’t answered my question. Did you complain about Ms Sekele not distributing the work, keeping the files? Was that part of your frustration with her which you shared with the Public Protector? Yes or no?

Ms Motsitsi: It was six to 10 files. It was not boxes of files and they were found by Ms Manyathela, and she wrote a submission to me for the attention of the Public Protector. I attended to that. They were based on the discovery of those files and that we were going to reallocate those files. It was a formal communication.

Adv Mpofu: Yes. Did you express your anger about that – or frustration because maybe anger is a strong word, to the Public Protector or not?

Ms Motsitsi: I even complained about Mr Madiba’s files, which we only uncovered this year. So it's something that you need to disclose that there are situations that we need to attend to. So it is not an isolated incident.

Adv Mpofu: Yes, but you didn't think that it's important for you to put all those perspectives about those same employees to this Committee, so it has a balanced view about frustrating conduct?

Ms Motsitsi: Well, Ms Sekele never testified here and said anything contrary to that. I can report on many things, Adv Mpofu. But they were not necessary for these proceedings.

Adv Mpofu: But it was necessary to portray her as a victim? Thank you Chairperson. Thank you for your patience.

Chairperson: Thank you, Adv Mpofu. Before I go to Members, I see the hand of Adv Mayosi.

Adv Mayosi: Thank you Chair. We would just like to place on record an issue that the evidence leaders have regarding the document that was put up. That's called the “tracking of the PEU matter” which Ms Motsitsi was taken through in quite some detail. When the witness asked Mr Mpofu to count the deadlines, which was said to be 25, or when the witness asked why Mr Mpofu said it was 25 deadlines, Mr Mpofu would not answer that question. In fact, he later sort of dismissively said that evidence leaders would count it for you. Chair, with respect this is not right. If it was us, the evidence leaders, who have carried on like that there would be cries of prejudice, rightfully so on the part of Mr Mpofu. As things stand, Chair, we do not accept that there are 25 deadlines without having had the benefit of having checked that with Ms Mogaladi, who was in fact involved in the matter. Ms Mogaladi has said to us during the course of today that she's never seen that document. She saw it for the first time now when she was following the proceedings. We then emailed it to her. Chair, what we'd like to place on record is that Ms Mogaladi may wish to file a supplementary affidavit addressing the issues that were raised with Ms Motsitsi during her evidence today regarding that document.

Adv Mpofu: Chair?

Chairperson: Just hold on, Adv Mpofu. Adv Mayosi, is that all you want to place here, that these matters had not been brought to Ms Mogaladi’s attention?

Adv Mayosi: Yes Chair, that’s all. We’d like to place on record for now in relation to that document.

Chairperson: Okay, thank you. Adv Mpofu?

Adv Mpofu: Chairperson. Yes, of course we have no problem if a witness wants to put a supplementary affidavit, or whatever. But the thing about 25. I counted them. So if you don't want to accept my word for it, it's fine. That's why I changed the question. I said to the witness ‘many’ and she accepted that we'll work on that basis – forget about 25 or 26. That’s fine.

Adv Mayosi: Chair, the fact of the matter is we don't know whether those dates show deadlines or not. That's the fact of the matter.

Chairperson: Okay. Alright. Thank you Adv Mayosi.

Adv Mpofu: Yeah, well, that's a different issue. That's fine. We agree.

Chairperson: I have not recognised you. Thank you. Now let’s proceed. I want to recognise the Members to interact with Ms Motsitsi. I will start with you, Hon Gondwe. It is now exactly 13:16. Over to you.

Committee Member questions to Witness: Ms Motsitsi

Dr M Gondwe (DA): Hello Ms Motsitsi. How are you?

Ms Motsitsi: I am well and yourself?

Dr Gondwe: I am well too. I have a few questions regarding your evidence. The first question is in your affidavit. You make detailed reference to an unhealthy and hostile working environment under Adv Mkhwebane, characterised by a culture of fear. Would you agree that in addition to this culture of fear, the environment in the Office of the Public Protector was also characterised by a culture of victimisation, intimidation and harassment? If you agree, please expand on your response. I know that during the course of your cross-examination, you alluded to feeling victimised.

Ms Motsitsi: Yes. When it comes to the hostile and unhealthy environment. It really affected me seriously, health wise. I was admitted, at a certain stage but I didn’t want to talk about it as it is still something very sensitive to me. The hostility in the environment is that when you go to these meetings, you know that whatever you're going to say, we are not being listened to. It's a hostile environment where I didn't feel that as Executive Manager, I had any decision-making powers. Whatever is said, you just have to note. Yes, you can be asked to give a deadline but you don't get a compliment. Every time you go to a meeting, you'll come back feeling belittled. You come back feeling… it's not a nice thing. If you can see the panic within the institution, when there is a Dashboard…I mentioned an incident where my senior manager, if I go on leave and she checks the dates for the Dashboard, she doesn't want me to take leave on those days. At one stage she had to represent me in one of the Dashboard meetings. She said that she'd had to do a walk of shame. She was taken out of the meeting. So the issue of victimisation and harassment… I felt victimised in many areas, when it comes to the issue of… Okay, I volunteered in most cases, as I said, it was something I welcomed a lot, but I would be doing Complaints and Stakeholder Management (CSM), Investigation and something would be imposed on me like Remedial Action now is reporting to you. Bt when you check the structure, it says Remedial Action reports to the Strategy and Planning unit. And the manager for that unit has been to the Public Protector's Private Office and been moved to the CEO Office, and Strategy and Planning moved to the COO Office. And all these offices didn't take discipline against this person but the minute she landed at CSM, I was served with disciplinary action, and I was served with an audi, to explain why she didn't comply even though at that time she was reporting to the CEO. Even the CEO mentioned that this person reports to me but I took responsibility and explained that ‘No, I did follow up on this.’ There are other incidents. At some stage there were two strategic planning sessions. The first one where I sat, there were those reports that were circulated to everyone there, even support staff – where we had presented draft reports because that was that was my advice that these reports were not ready. If you know the work of Ms Mogaladi and Mr Madiba, and you had seen that work, you would be proud. So I was lambasted and when those reports were circulated and passed my table, I realised the quality of the work itself and I didn’t really know why I am being put in that place. The Executive Manager, Christopher Fourie, had to hold my hand, just to support so I didn’t break down.

Chairperson: Just to remind both of you, that you have limited time.

Ms Motsitsi: So victimisation and harassment are those things where you have to take over additional tasks. Then later it was me managing the entire CSM branch and I had to take over Investigations. That’s why I was saying I would go to road shows and come back and then follow-up investigators because now I’m managing investigations. I have explained that it was issuing allegations; I was issuing subpoenas, mainly charges of contempt.

Dr Gondwe: Thank you. Ms Motsitsi, has there been a change in the working environment of the Office of the Public Protector in the three or four months Adv Mkhwebane has not been physically present in the Office, due to her suspension?

Ms Motsitsi: Yes. What happened, I think after my early retirement application was declined, the CEO… In fact, since December, when I took sick leave again, because my health was affected negatively, they wanted to know what was happening. But because it's something that I was dealing with my private medical doctors, I could only say that it's… I have depression, and this is what the doctor is saying. They knew that I was to retire by the end of June. In June, when I submitted my documents, they sat me down, just to understand, to the extent…

Chairperson: You are also fading when you are responding.

Ms Motsitsi: My health improved in such a way… yes, I was referred to Independent Counselling and Advisory Services (ICAS) for counselling and I was appointed a therapist, who attended to me. That is why my health has improved dramatically.

Dr Gondwe: Because the working environment has changed since the three or four months she has not been there?

Ms Motstisi: Yes, the working environment has changed, because those Phase 1 investigations were taken away.

Dr Gondwe: Okay. In your view, is the Office of the Public Protector as it currently functions and operates, living up to the purpose for which it was established? In other words, is it living up to its name of being the protector of the public? Is it working for the marginalised and the ordinary woman or man on the streets with bread and butter issues? Or do you feel it has been too caught up or wrapped up in politically sensitive matters to the detriment of the marginalised and that ordinary man, women on the street with bread and butter issues?

Ms Motsitsi: As I mentioned, the Public Protector is a very highly compassionate person, if she gets a complaint, especially from… There was one example where a student wanted to commit suicide because of, I think, it was a certificate. You know that once you get that notice you have to attend to it because those are the issues that she deals with. You go to orphanages on Mandela day, you go to old age homes… We contributed for her to buy shoes for students, because that's the person she is. So when it comes to marginalised we went, I made an example about Masipumelele, where I took her three times. That’s where her heart is. So when it comes to marginalised her heart is there. I am proud to have worked with her regarding those issues because we feel the same way.

Dr Gondwe: Okay, in paragraph 31 of your affidavit, you stated that yourself and the then Acting CFO, I assume you're referring to Mr Vusi Menzelwa?

Ms Motsitsi: Yes.

Dr Gondwe: You said you signed-off on a memo to National Treasury seeking to justify that the Office of the Public Protector be granted a bank overdraft facility of R15 million to address the financial need. You indicated in the course of your cross examination that you were concerned that the Office of the Public Protector was applying for this overdraft facility of R15 million because it was a sign that it had not planned within the budget allocation or baseline. Please confirm if you felt that the application was justified in the circumstances. Also confirm if the Office of the Public Protector's increased spending on litigation directly contributed to the dire financial situation that it found itself in – which situation could have resulted in it being unable to pay staff salaries?

Ms Motsitsi: Okay. The R15 million was critical, in the sense that the failure to pay salaries would affect the livelihood of PPSA staff. So that had to happen, by hook or crook. That was a priority to me that we cannot get to a stage where we cannot pay salaries. Then about increased legal spending, I note I said in the meeting I was questioning that the legal budget was… I think it was R10 million but we increased it the following year to R40 million, when we had already spent something like R20 000. I was saying the baseline for last year is R20 million but now we are still under-budgeting for legal spending. Legal Services were very critical for the Office. It disturbed the financial status of the institution.

Dr Gondwe: So you agree that it is contributed directly to the financial situation that the Office of the PPSA found itself in, more especially that it wasn't going to be able to pay staff salaries?

Ms Motstisi: Yes, that I got from the memo from the then Acting CFO.

Dr Gondwe: Okay. Now I want to ask you about the audi letters. Did you get the feeling that the issuing of audi letters in the Office of the Public Protector was sometimes done on a selective basis? I'm asking this because we heard evidence earlier from Mr Muntu Sithole where he confirmed that he and others in Legal Services were to blame for an incomplete Rule 53 Record in respect of the Vrede Investigation. But he was not issued with an audi letter nor was he disciplined for the incomplete Rule 53 Record. Yet, Ms Pona Mogaladi confirmed that she and others were disciplined, and eventually suspended for a defective Section 7(9) notice in the FSCA investigation.

Ms Motsitsi: Audi letters are served across the board. Recently, I think, there were audi letters drafted for the entire office but they were withdrawn for some reason – the CEO is the one who can testify to that. I was actually surprised when Mr Sithole said that he had not got a letter. But they are served across the board.

Dr Gondwe: Can you please tell this Committee about the involvement of the SSA in the business and operations of the Office of the Public Protector under Adv Mkhwebane? To what extent was the SSA involved in the business and operations of the Office of the Public Protector?

Chairperson: That will be your last question, Hon Gondwe.

Dr Gondwe: Noted, Chair.

Ms Motsitsi: We had the Acting CFO, I was informed that he was from the SSA. The reason was that we are not going to pay for him, we are saving. Later we received a letter that we should pay a certain amount for this CFO. I brought it to the attention of the Public Protector, that contrary to what I was told, we have to pay, I think, the excess of what he was getting from the SSA. At some stage I attended a meeting with Mr Neels van der Merwe, the Senior Manager for Security Services and the IT Senior Manager, where we were briefed by the SSA about developing a system. I think we wanted to procure a system and we had R10 million for that system but something went wrong, regarding the system. The Public Protector advised us that the SSA could develop the system. If we were not going to pay anything, that would be a plus but the quotation they provided was R58 million. Right then and there, we decided with the IT Senior Manager that it was not affordable – contrary to what the Senior Manager for Security Services was saying. So SSA was involved in our business and I think we also consulted them as our staff at reception were being attacked by complainants. I think they came to advise on how to secure the reception area.

Dr Gondwe: So you indicated that there was an excess paid for Mr Menzelwa?

Ms Motsitsi: We got a letter. I don’t have that letter. I had to bring to the attention of the PP that the SSA was demanding payment of Mr Menzelwa’s salary. Maybe from Finance, I can get that letter.

Dr Gondwe: So you don’t remember what the amount was?

Ms Motsitsi: No, I don’t.

Chairperson: No, Hon Gondwe. I now recognise Hon Dlakude.

Ms D Dlakude (ANC): Thank you very much, Hon Chair. Good afternoon to my colleagues, Adv Mkhwebane and her team; and Ms Motsitsi.

Ms Motsitsi: Good afternoon, Hon Dlakude.

Ms Dlakude: Ms Motsitsi, you said you left PPSA in 2007 to join Home Affairs, and you rejoined PPSA in 2017. What were the reasons for you leaving and returning?

Ms Motsitsi: Yes, I was the Senior Investigator and then the Chief Investigator at PPSA. Instead of issuing remedial binding action, it was recommendations and we dealt with many matters that affected grassroots. I felt that I reached a ceiling. I needed to explore more and also to get… I was also studying for my MBL (Master of Business Leadership), I wanted to explore more when it comes to operations management. That’s why I went to Home Affairs, and I was a Director for Border Patrol Operations. Then from there I became a provincial manager where I got extensive experience when it comes to operations management.

Ms Dlakude: Thank you very much for that. In paragraph 39 of your affidavit, you set out some factors that were stressful for you. Was any support rendered by the PP to you when you stepped down as Acting CEO, following your health scare?

Ms Motstisi: PP, when I came back in May, I informed her because this was based on the medical letter that I had that if I don’t discontinue as CEO, my health will not improve. She immediately acceded to my request. That’s why I went back to CSM – and then the new CEO, Mr Mahlangu, was appointed. At least I went back to my position so I could recover. My heart and soul is with investigations, of course, and when she said can you act as COO, it was much better than acting as CEO, and that’s why she said assist, I said I was willing to assist.

Ms Dlakude: Okay, thank you. For effective employees, the environment must be conducive. What is the organisation doing to ensure that the health and wellness of employees is taken care of?

Ms Motsitsi: Yes, we have ICAS, they report to us on a monthly basis. Those reports are discussed at EXCO and we get the statistics of staff members that are being attended to by ICAS. Most staff members either have counselling or they go through physical therapy.

Ms Dlakude: Okay, thank you for that response. You say in paragraph 45 that the PP was concerned with delivering and deadlines without considering the circumstances. Do you think she failed to understand the nature of the Office and the context in which investigations were?

Ms Motsitsi: Yes. As I said, the Public Protector is results-driven, but when it comes to the quality and merits of investigations… That was not what we discussed. We discussed that you promised to deliver a notice or a report, and if you don’t deliver, obviously consequences will follow.

Ms Dlakude: Thank you, Ms Motsitsi. Do you think the deadlines and the demands of the PP for finalisations were unreasonable considering the volume of evidential material investigators at times had to deal with, for example, the PEU investigation, in your paragraphs 49 to 50?

Ms Motstisi: If everything was equal, we were investigating cases, let’s say AJSD, you move from step one, two, three, four, five, and then GGI, you move to step 10 and it's the same information et cetera. The demands and the deadlines would not be unreasonable. However, in this case, they're dealing with extremely complex matters, and you have to decide on a case, based on its merits. One case might take 24 months, the other, we even extended to 36 months. They are complex indeed, and you have to look at events that are unfolding as you are investigating. So the demands were unreasonable and the deadlines were unreasonable when it comes to the work investigators are doing.

Ms Dlakude: Thank you. My last question, Hon Chairperson. In paragraph 50, as it relates to the PEU investigation, you indicate that the PP informed Ms Mogaladi that she should ignore evidence from the court process. Was it irrational for the PP to have requested this?

Ms Motsitsi: It’s unreasonable. You cannot ignore that evidence – you cannot. Obviously you might find that you don’t have the decision to investigate the matter.

Ms Dlakude: Do you really think it was reckless of her to do so?

Ms Motsitsi: It was reckless. You cannot ignore anything that comes when you do investigations. You must take everything into consideration because the remedial action, it affects lives. It affects jobs, it affects families. So you have to be very strict when you're making a recommendation against anyone. You have to be certain that once I make this recommendation against the DG, the Minister or the MEC, the repercussions will be serious for that person and the country as a whole because now you're talking about this government that is corrupt – whereas you find that you didn’t do your investigation thoroughly. You have to make sure that you investigate thoroughly.

Ms Dlakude: Thank you very much, Hon Chair and Ms Motsitsi.

The Chairperson. Thank you Hon Dlakude. I now recognise Hon Mananiso.

Ms J Mananiso (ANC): Good afternoon Ms Motsitsi. How are you?

Ms Motsitsi: Good Afternoon, Hon Mananiso. I am well thanks how are you?

Ms Mananiso: I am well thank you. My question is with regards to your affidavit and your intakes. Your intakes are not legally qualified, right?

Ms Motsitsi: Yes.

Ms Mananiso: I want to check in terms of your protocol when you advertise for Intake staff. Do you call for specific fields of study. Two, do you take these intakes into an orientation programme or capacity building, when they are within the workplace. My concern is that most of you who have come before the Committee, speak about lack of capacity and power. I believe that intakes are there to assist with such. I want to check if those people are orientated on what the PPSA is all about, so that they are able to assist where other colleagues are overwhelmed.

Ms Motsitsi: Okay. Intake, you are talking about registry, where you receive all the emails and the complaints, whether you receive them by post or email, telephonically or whether there are walk-ins. So you receive a form and then you allocate a reference number, then you issue an acknowledgement. Right now we have a system that is working. They would compile their manual register on the cases that are there and then they would issue the reference numbers to provinces for the system. Intake staff are not legally qualified, but they are empowered on the mandate of the Public Protector. They will sort out the cases but what they can do is check whether we have jurisdiction, for instance, over Pick n Pay or Home Affairs. But they can’t go to the extent that Section 6(9) is applicable. That is the step done by the Assessment Unit.

Ms Mananiso: Okay, ma'am. In paragraph 67 of your affidavit, at some point you felt that you were required to be more of a whip. I want to check with you is it not your responsibility as a person who was in a senior position in the institution to be a whip as and when people are not doing their work?

Ms Motsitsi: If a person doesn’t perform, I specified the steps that you should take as a manager. There are step; there are reasons that will be provided. The non-performance does not in itself become misconduct. It's not. Non-performance, you have to have a responsibility to make sure that you empower, train and make sure that the person can perform the function. You have a serious responsibility to make sure that the person is able, has resources, et cetera. So you become a whip when you have taken all those steps; referred a person to ICAS; coached matters; and you find that this person still hasn’t delivered when you have taken steps to empower the person. Then it becomes misconduct. That is when you start taking disciplinary action. It becomes a disciplinary after you as a manager have made sure to empower a person to perform the function.

Ms Mananiso: So do you agree with me that whipping is part and parcel of your duties?

Ms Motsitsi: Consequence management for failure to perform which results in misconduct, is my responsibility.

Ms Mananiso: You answered what I wanted you to answer. With regards to what we have alluded to, ma’am, on the issues of the audi letters. I want you to take us through the difference of your audi letters from Home Affairs as well from PPSA. Is there any difference and did you accept them in a different mood? Just take us through the process of these two audis. I want to check if they differ. I noticed that you didn't have a problem receiving them at Home Affairs; hence, I want to get a sense of what could be the difference between these two.

Ms Motsitsi: Audi letter at Home Affairs is information gathering. Your manager wants to find out what went wrong, to the extent that my direct manager, the DDG at Home Affairs, would not even issue a letter. He would come to your province and sit down with you in the boardroom and say ‘I am getting these complaints regarding 1, 2, 3, 4…’ and address you like a manager before he meets with the staff. So an audi to them is 'let me understand what is happening and from here I am going to reconcile this manager with the staff'. So it's information gathering towards rectifying and building a team. At PPSA, audi letters have a predetermined outcome, that from audi you go to a warning. That is the issue with this audi that now why do you accept this explanation from this person. That has always been a confusion because when you say to me, 'Nthoriseng, issue an audi', you see a fault with me as the manager, but you are not listening to your people. That is why I would go and sit in the offices and engage them. Once a person has explained, and let's say a person apologises immediately ‘you know, it's my fault, but I will improve’… so you start the improvement plan with the employee.

Ms Mananiso: Okay. When you were posed questions, you indicated that the Public Protector is a results-orientated person. I want to check with you, with a person who is results-oriented, don’t you think issuing audi letters would be one of the things that she would do in executing her work?

Ms Motsitsi: Yes, you do that. What you would do, is you have deadlines, you want the PEU matter and as manager have to set, obviously with the assistance of the executive managers, senior investigators – look at the report, what are the issues, what is the delay. If a person does not comply, let’s say you give advice and guidance, et cetera, and the person doesn’t comply, then with the Chief Investigator, the Executive Manager will have to take action: 'I advised you to do one, two, three and you haven't done these things'. The Executive Manager herself must decide that. 'I've given you a warning, second warning, well, now I'm taking this matter to Labour Relations for disciplinary steps'. The report is due and the Executive Manager is overseeing that investigation. I would not go directly to the Chief Investigator as manager, I will engage the Executive Manager, find out what you are do to make sure that this person can perform. If I advise the Executive Manager ‘do 1,2,3,4, to make sure that you get compliance'. And if the Executive Manager does not take my advice or guidance, et cetera, I'm not charging her for non-delivery of the report. I will issue an audi to understand why you failed to take my advice after I have guided you. Now coming to the COO, it applies the same way. But issuing audi letters to a chief investigator across – from COO to EM, to Chief Investigator to Senior Investigator, it destroys the institution. The entire unit will be demotivated, demoralised and frustrated. They will get sick because that audi which was caused by one person affects the whole chain from COO until the person who is supposed to deliver. That's why I keep on saying, an audi letter is a prerogative of the manager. If I am the COO or CEO, my dependents that support me will have to tell me why they are not delivering and obviously this the audi will go to one person who is not performing.

Ms Mananiso: Okay, Ms Motsitsi. I just want to check as a follow up, did you make the Public Protector aware of how these people feel about these audi letters and the impact of these audi letters as a colleague?

Ms Motstisi: Well, the issue of audis was a topical issue within the PPSA. I think it was also dealt with by the union, in one way or the other – that these things are not working for the system. The staff is demotivated and demoralised. This is a topical issue and is discussed on a daily basis.

Ms Mananiso: Okay, ma'am. I have asked those who came here with regard to management, leadership and governance, do you think that in the PPSA there's a need for change in the organisational behaviour?

Ms Motsitsi: Yes, organisational behaviour. A CEO must be a CEO and an accounting officer. An executive manager must be a visionary. You must give us your vision and we must make sure we realise that vision. As to how I reach that vision, it has to be my strategy. So those are the governing structures that I was talking about. If there's outreach, and I want to get to the grassroots, how do I get to that? It shouldn't be a top-down approach. It should be, ‘I have a vision, I want to get there. Make me get to those people.’ And then you can hold me responsible as Executive Manager, 'you're not doing your job, why don't you strategise so that I get to this and you realise my vision'. So it has to be like that. The manager must be given powers to make decisions and report on those decisions; strategise; talk about strategic not about operational issues; not talk about issues that are affecting staff; which manager can be held responsible. If, let's say a receptionist is not performing his or her duties, it has to be a direct manager, but Executive Management and Chief Investigators have to be at a strategic level 'how do we resolve these issues\? I think even the issue of backlog, it's the responsibility of COO, Executive Managers, Chief Investigators. Bring the strategy to leadership, to see that this strategy is working so that they monitor and we deliver. Then you can hold me responsible, if I am not delivering.

Chairperson: Your last question, Ms Mananiso.

Ms Mananiso: My last question is with regards to what you have indicated in paragraph 59. You indicate that PP would insist that investigations be rushed. Do you think it was reckless of the PP to demand this, considering the complexities related to investigations? Lastly, as you answer this particular question, can you classify the leadership style of the PP?

Ms Motsitsi: Hon Mananiso, I can tell you that when the PP started, there were cases dating back from 2012, 2013 and 2014. They were very old cases. The backlog was huge. It was her priority to eradicate that backlog. But these matters were not investigated by whoever – the investigators are either gone or they have exchanged hands, et cetera – and the strategies are changing. So from the minute you take over, you have to look at that strategy. Okay, in this case, I have so many cases, what is the strategy for dealing with these cases? How can we make sure that we eradicate them? And for timelines, when can we make sure that management monitors this? You can come up with a backlog project team that deals specifically with backlogs. You can come up with ways of saying, ‘Okay, let me get contract workers for a period of 12 months. Ask for a budget for that. And make sure that unit deals specifically with backlogs.’ So there are many ways of dealing with a backlog rather than… because as you're dealing with the backlog, there are other cases that are also ageing, and they become a backlog. So there are many strategies, but give it to the EM, CEO and COO to develop those strategies so that you can achieve the target and eradicate backlog. But at the moment, the development still is accumulating. Yes, I think it was reduced two or three years ago but it's still a huge number of cases that are still in backlog, and we're still dealing with the same thing without a specific strategy.

Chairperson: Thank you, Ms Motsitsi. I now recognise Hon Mileham.

Mr K Mileham (DA): Good afternoon, Chair, and thank you. Good afternoon, Ms Motsitsi.

Ms Motsitsi: Good afternoon, Hon Mileham.

Mr Mileham: Ms Motsitsi, I'd like to start by drilling down into the financial state of operations during the time you were Acting COO. Please help me understand this: budgets are drafted and approved by the Public Protector and by Parliament, is that right?

Ms Motsitsi: Remember you first have your sessions where you look at your baseline for the previous year, and then you come up with your plan, and then you cost your plan. Budgets are drafted together with the executive level and senior managers, where we sit and decide about this.

Mr Mileham: What I'm getting at is where are they approved?

Ms Motsitsi: From office level, they are approved by the Public Protector and it will be presented to Parliament, and justified and its approved.

Mr Mileham: Thank you. Now if I understood you correctly, those budgets were not always adhered to? Is that right?

Ms Motisti: For three months… That’s why when I took over Hon Mileham… when I took over the shock was that we didn’t foresee that we’re going to run out of money by the end of March 2018.

Mr Mileham: That was because of the massive increases in litigation costs, that affected other cost centres and other expenses. Is that correct?

Ms Motsitsi: It was not only legal costs, there were other issues that were raised by the Acting CFO. The issues of IT (Information Technology) and salaries.

Mr Mileham: Sure. So amongst the expenses affected was the ability of the Office of the Public Protector to pay the salaries of staff?

Ms Motsitsi: I was going to go there if we didn't really attend to the matter urgently and get a bank overdraft. It was granted on condition that we pay it back within 30 days.

Mr Mileham: You spoke about how there was a multimillion rand offer to settle with Ms Mosana. Can you explain to me why you would settle with an employee if there was a shortage of operating funds? Secondly, if that person was guilty of a dismissable offence, why would you put a multimillion rand offer to settle on the table?

Ms Motsitsi: I was not involved in those negotiations, but that's why on that day when I came in about 11:00, I heard that there were those discussions. I mentioned that I wouldn't even pay a settlement at R5 000, based on the circumstances of the Office. So the Chief of Staff, Legal Services and the Senior HR Manager were saying that she has a contract with a contractual obligation. But I said, no, there are other ways to look at alternatives because this salary you don’t get it in a lump sum. And if you get it, it is for the duration of the employment of this person.

Mr Mileham: Just sticking with Ms Mosana, for a moment. Do you think that the action that was taken against her for allegedly calling Adv Mkhwebane by her first name – do you think that the action taken was reasonable?

Ms Motsitisi: Hon Mileham, that is why I said the breakdown was not between the individual and the Office. It was two individuals who had a conflict and that can be resolved by moving her from the Private Office into core. But the Public Protector’s preference, she made it clear, is that we cannot use her name.

Mr Mileham: Okay, I'd like to turn to the portion that you spoke about the Acting CFO, Mr Vusumuzi Menzelwa. He was seconded to the Office of the Public Protector by the State Security Agency. You've already testified to that correct?

Ms Motsitsi: Yes.

Mr Mileham: We heard from Adv Mpofu and Mr Tyelela [HR Senior Manager] that the reason the Acting CFO was seconded was to ensure that there was no cost to the Office of the Public Protector arising from the golden handshake of R945 000 paid out to Mr Kaposa who had been denied a security clearance. But that wasn’t in fact a cost-saving measure at all, was it? Because Mr Menzelwa was paid from the operating budget of the PPSA?

Ms Motsitsi: When I was briefed about Mr Menzelwa, I also knew that we are not spending on his salary, until that letter came where SSA was demanding that we have to pay them for…I don't know what his level was before he came to the Public Protector. But we got that letter and I then took that letter to the Public Protector and said ‘you advised me that we are not paying this salary'. And to be fair to the Public Protector, she was a bit surprised. She said in that case, then we can’t continue because we don't have spare budget. He was supposed to be seconded for a certain period so that we can recuperate from the loss of the amount that was paid to the previous CFO.

Mr Mileham: Was that not confirmed in writing beforehand? Was there correspondence or some kind of agreement or anything like that?

Ms Motsitsi: I wouldn't know because when those engagements happened, I was not the Acting COO.

Mr Mileham: Sure, but by the time it came to your attention, did you investigate in any way?

Ms Motsitsi: By the time it came to my attention, obviously my advice would be, no, this has to stop. If we’re going to pay this salary, we might as well get a CFO for PPSA. That was my advice.

Mr Mileham: So if there was no cost saving why would you go to SSA for a CFO? I’m talking about the Office of the Public Protector, not you personally.

Adv Mpofu: Chairperson?

Chairperson: Hello?

Adv Mpofu: I want to raise an objection.

Mr Mileham: Of course you do.

Adv Mpofu: What’s your problem Mileham? Chairperson, I’m saying.

Mr Mileham: Chairperson, on a point of order?

Adv Mpofu: I’m still on the floor, sir.

Mr Mileham: I’m raising a point of order, Adv Mpofu.

Adv Mpofu: Yeah, don’t shout at me. Just raise your point of order. Chair, who are you recognising?

Chairperson: Just hold, Adv Mpofu. Hon Mileham?

Mr Mileham: Chairperson, I am very, very particular in addressing Adv Mpofu by his title of Adv Mpofu, or Mr Mpofu. He has repeatedly referred to me as Mileham, which is unacceptable. It's unparliamentary. Secondly, Chair, he repeatedly interrupts my questioning and takes away my time with the witness. And it happens pretty much only to me. Now I object to that strenuously. Chair, I'd like a ruling first on the matter of the way that I'm addressed in this committee. He can call me Mr Mileham, Hon Mileham, but to say Mileham is not acceptable. Secondly, I'd like my time preserved please, Chairperson.

Chairperson: Thank you, Hon Mileham. On the issue of time… let me start there. I manage that so I know when your time is interrupted and I normally give Members that time when someone interrupts. So rest assured there, you will still have your allocated time. On the second point, Adv Mpofu, I missed that you had referred to Hon Mileham as Mileham. This is a parliamentary process, so I would request that you refer to Members as Mr or Ms or Hon, the same way you refer to me as the Chairperson. Can I hear from you?

Adv Mpofu: Thank you Chair. I apologise. It must have been a slip of the tongue. I was saying that the problem Chair. Did you say I have a choice to call him Mr Mileham or Hon Mileham? I think I’ll go for Mr Mileham. Mr Mileham, when I was saying that I have an objection, Chair, he interrupted me as usual and said ‘’Of course you do’’. I will call him Mr Mileham, when he behaves like one. It’s fine, I don’t mind. As I say, it was not intentional. But I don't appreciate the chirping that he was doing. Okay, anyway. Mr Mileham, the question I was objecting to…

Chairperson: Object to the Chair, as you were making your objection with me.

Adv Mpofu: Yes, yes. I apologised to Mr Mileham and I expect him to do the same for interrupting me in vain. Maybe let's finish that business, first, here.

Chairperson: No, let me address it in this way. I don’t know whether the two of you know each other?

Adv Mpofu: No, I don’t know him from a bar of soap.

Chairperson: I want to make the point, Hon Mileham, and I’ve made this point before. Whenever somebody is not happy with something, it is the duty of the Chair… I wouldn’t want Members or Adv Mpofu himself to interact with a Member because I am presiding over this. So I take your point Adv Mpofu, that he interacted with you, not through me.

Adv Mpofu: That’s fine. I don’t expect him to apologise. I just don’t appreciate the provocation here. Now Chair, the point I wanted to make here is that Mr Mileham is misleading the witness or he is making a mistake because he's saying, if there was no cost saving, the witness has said more than once now that there was a cost saving, but they were expected to pay some difference. I don't know. She gave some explanation about grading and so on. You can’t then put the question on the basis that there was no cost saving. You must put the reality, which is that there was a cost saving, but there was this other payment. Because, you know, it's just not true, Chairperson. This time I am not sure if it is deliberate or not, but it is misleading.

Mr Mileham: Chairperson? This is the second time that Adv Mpofu has accused me of misleading this Committee. I'm asking questions. I'm not misleading the Committee. I'm asking questions for clarity purposes. And it is not for Adv or Mr Mpofu to tell me what questions I may or may not ask. I would ask you, Chair, to make him withdraw for the second time that I'm deliberately misleading this Committee by my questions.

Adv Mpofu: I didn’t say that.

Mr Mileham: You said it the last time and you’re repeating it today. You are saying I'm misleading the Committee. I'm saying that is unacceptable. It's not parliamentary and Chairperson I'm asking for a ruling in this regard because it is not true. I'm asking a question.

Adv Mpofu: No, Chairperson.

Chairperson: Hon Mileham, Adv Mpofu did not use the words deliberately here.

Mr Mileham: He used it in the last session.

Chairperson: This is not the last session. You can’t bring issues from then, here. You know how the rules operate. I intervened in the last session. I indicated to you and let me repeat the point and the point he was making then was that whatever you are putting, you did not complete and that had the possibility of being misleading. That is why I clarified that matter. I don't want you to bring what happened last time into today's session because I can’t make a ruling of what happened then. In any case, I did make that ruling; you might not have been happy with that ruling. I would really want us to proceed without this tit for tat arrangement.

Adv Mpofu: No, it’s just the tit, there’s no tat. I didn’t do anything.

Chairperson: I didn’t recognise you, Adv Mpofu.

Mr Mileham: Chair, can I proceed?

Chairperson: Please.

Mr Mileham: Okay, thank you Chair. I'm going to ask you, again, Ms Motsitsi.If there was no cost saving, what would be the benefits of seconding an official from the SSA and not promoting someone to an acting position from internally, or getting one from the Department of Justice or National Treasury or something like that?

Ms Motstisi: As I mentioned in my response, I was briefed that we won’t be paying salary for the Acting CFO. A letter came, that's why I say I can't remember whether we're paying the full salary or in excess over and above the salary he was getting at SSA. That can be confirmed, maybe by our financial records. Under normal circumstances, state departments will assist each other. We are assisting the Public Service Commission with its systems. They bring their people so that we can train them. SASSA also brought in their ICT manager to come and assist us to develop a system. So state departments do interact and work together to make sure that we empower each other. In our MOUs, we do say those things that we will source expertise from this department for a certain period. So in my mind, it was one kind of arrangement, where you want to source a service from a department and you don't have to pay for that service, because we are being paid by the same National Treasury.

Mr Mileham: Sure. Just two more questions. During the period when you came back to the Public Protector in 2017, and the period that you were the Acting CEO, Mr Nyembe was first the Special Advisor and then later Chief of Staff to the Public Protector, is that correct?

Ms Motsitsi: Yes, I was the Executive Manager for complaints then. He was Special Advisor for a couple of months and then left. I think the post was advertised and he applied and he was appointed as the Chief of Staff.

Mr Mileham: Okay, did he play any role in advising politically or socio-economically, in terms of the reports of the Public Protector?

Ms Motsitsi: I was not involved. I would meet him during the Dashboard meetings, where we were discussing the reports because he attended all of those meetings. Yeah, that's where I met him, but we never had any interactions.

Mr Mileham: Okay, my last question is this. Could you confirm whether the quality of reports declined as a result of unreasonable deadlines or a lack of resources, or a hostile work environment under the tenure of Adv Mkhwebane?

Ms Motsitsi: A lack of resources was a serious issue within the Office. If you don’t have resources and you have these pressures, and people obviously don’t want to end up with an audi, they will submit a report. I can give an example. At one stage a person submitted a report with a cut and paste in the body. It reflected the complaint but in the middle it was talking about another report. So it compromises the quality of reports. If you're a manager who's going to just sign off, you would sign off on a report that has implications for two departments, where the complaint was against one department. So the pressure didn’t add any value to the reports issued. However, I need to mention this, PPSA has highly professional and able investigators. They are attorneys, they're advocates and they have pride. You could never issue Mr Madiba’s reports until he said it is ready for issuance. Ms Mogaladi would refuse until the bitter end to give you a report that is not complete or thoroughly engaged.

Mr Mileham: I’m sorry Chair. This will be my last question as that's just raised a further issue for me. We heard that people worked through the night to issue reports so that the Public Protector could have a press conference the next day and release that report. And that those reports were then taken on review and found to be problematic both legally and factually. So how do you then say that Mr Madiba, to use one example, would not release a report that was not ready when we've heard that in fact the exact opposite was true?

Ms Motstisi: Mr Madiba’s reports are living beyond his grave. He’s still winning all the cases. It is an example. The pressure would result in compromise. But I'm not involved in investigations. I'm just talking about my stint as Acting COO when I interacted with Executive Managers and the Chief Investigators, Mr Madiba, Mr Mataboge and Ms Sekele. Those are the people that I would go to their office and see what work they were doing. So I won’t talk about all the investigators. When Mr Mataboge reported on NIA and PDA to me I could see the work he was doing and how thorough he was, when he was engaging with his staff members. Unfortunately, I think because of the pressures, some of the things were overlooked, because one person would feel that 'I’d rather get an audi'; the other would feel, 'you want the report, let it go'.

Mr Mileham: Chair, I actually want to go back to one last question and then I'm done, I promise. Ms Motsitsi, going back to Mr Menzelwa, do you know if the Office of the Public Protector reimbursed the SSA for his time at the Public Protector?

Ms Motsitsi: I am not sure. I don’t know about that.

Mr Mileham: Thank you.

Chairperson: Thank you. Hon Manketsi?

Ms M Tlhape (ANC): Good afternoon Ms Motsitsi.

Ms Motsitsi: Good afternoon Hon Manketsi.

Ms Tlhape: Let’s continue where you just finished off. I might have missed it, but you will pardon me if I did. About the Acting CFO, Mr Menzelwa, you indicated that there was a demand from SSA to increase his salary when he came?

Ms Motsitsi: No.

Ms Tlhape: Okay. What was it about the salary?

Ms Motsitsi: I think he was Acting CFO, which was a higher position. What happened is that after a couple of months he was with PPSA, we received a letter that we should pay SSA the amount of his salary or an excess, I can’t remember, for his services. It sounded like he came at Director Level but he was acting at Chief Director level, so you pay that excess or maybe they were demanding the salary for three to six months?

Ms Tlhape: So you were not furnished with the reasons as to why?

Ms Motsitsi: As to why, what?

Ms Tlhape: Is that why you had to pay that excess?

Ms Motsitsi: No, the letter said he was rendering his services to the Public Protector’s Office and we were gaining from his services, that is why we had to pay that excess or salary, for his duration at PPSA. I can’t remember the details of the letter, but I think that information is readily available that we can get from Finance.

Ms Tlhape: There was no dispute – you never followed up to say why you needed to pay, you just paid?

Ms Motsitsi: I don’t know if it was paid. I was long gone. Remember I was Acting COO for three months.

Ms Tlhape: Alright. You indicated that you had health problems, which improved since you took some time off. Were they caused by your work environment?

Ms Motsitsi: Yes, most definitely they were caused by my work environment.

Ms Tlhape: Did you get any support from the same work environment?

Ms Motstisi: Well, I have been going for treatment since 2018. Only when I applied for early retirement. I had to decide if rather I leave because my doctor said that I could only heal after I leave that environment.

Ms Tlhape: But at least there was support from the work environment?

Ms Motstisi: In June or May, the current CEO advised that I consult with ICAS and ICAS took me for therapy. But when I submitted that early retirement application, my health improved. I could sleep; I became happy; my palpitations improved.

Ms Tlhape: You also indicated, Ms Motstisi, that under the leadership of the current PP, the work environment is the harshest. Is she responsible for this harshness in the work environment, according to yourself?

Ms Motsitsi: You live in fear. You can’t sleep. That’s why I would go on roadshows from the plane and come back home and convene a meeting with my Phase 2 managers and then follow up on investigations. That is when my health took a turn in December. In December I was booked off again and that is when the doctor gave me the option for admission, but if it goes on like this, it would be unethical to continue giving you treatment, unless you leave that environment.

Ms Tlhape: Okay. Now yesterday you hinted in the letter that you wrote to Mr Ndou, accusing him of malicious compliance, was this the directive from the PP as we've heard previously from other witnesses?

Ms Motstisi: No, that is not a letter. In that case it was the root cause form. The Public Protector wanted a report on 14 August 2018. He didn’t submit that report. We had a meeting already with the complainant on 14 August 2018. What happens is, if you have that meeting, you are going to have a staff meeting, the report is submitted, I go through the report, I make my input, it goes back to the executive manager or to the province. I think it involved KZN. So in this case, he didn't submit that report until the day of the meeting. And on the day of the meeting, I discovered there are errors in the report itself. And it has to go back to him. Now I'm not complying with submission to the Public Protector but I couldn't take that substandard report to the Public Protector. That's when I wrote on the root cause form that how can you expect me to present a report like this to the PP, when she has a meeting today on the very same report. So the notes were on the root cause form and on the memo.

Ms Tlhape: Did you take this matter further with him?

Ms Motsitsi: That’s why I don’t think that is something harsh because it's 14 August that I'm writing that. If I take a decision… let’s say after the meeting I start with an audi, you were supposed to submit this and do this, how does that help submit a proper report to the PP on 14 August? So I didn't take any further steps. But I went to him and he submitted then. Then we had our meeting and it was a successful meeting.

Ms Tlhape: Okay, my last question, Chairperson. What would be your proposals in dealing with non-performance, non-compliance to timeframes instead of audi letters? What would be your proposal?

Ms Motsitsi: No, audi letters are an important tool for a manager to use. That is why I am saying listen to the other side. You have to understand if you say you want a report by the end of the month and obviously, the person… you would have something, like a register, emails, you have to get that report on that day. If you don’t get that report, it's either you engage the person, but preferably a person would come to me for that, and tell you that 'I have these situations, I can't deliver on Friday, but I'll deliver on Monday because of this'. That's a better situation as you already know that this is going to be late. But if the person keeps quiet until the due date, then you have to engage the person. So an audi can be a meeting in which I call you into my office, where I say I am expecting this report but you haven’t delivered, and you explain to me and say I’ll submit on Monday. Then on Monday, the person doesn't deliver. Then you try to understand what the issues are because you said you were attending a funeral and you still didn’t submit. The person will provide reasons but if they are not acceptable, you have to issue a warning to the person. If the explanation is reasonable, then you'd have to consider it and ask that this does not happen again. But if a person says that information was not submitted by the department and I can’t finalise it and make a finding against the Minister or the DG. Do you understand the gravity of the difference in these audis? If you issue that report without giving an accounting officer a hearing, the repercussions are serious for that person and that institution and the Public Protector if it issues that report.

Ms Tlhape: You lost me there. At what stage do you put the audi in writing? Or is it a problem when you put them in writing as a letter?

Ms Motstsi: No, I have done them – several of them. When the response comes because a person applies his or her mind in what they are putting, you'll find that, all along you were not aware of these circumstances. And in some instances, in one instance, where I had to take the matter up to Labour Relations, as I had given this person so many chances and it was just not working. I have helped the person. I explained. I sat down and literally wrote 86 letters with this person. So you have taken steps and you then say now it is enough, you are not really performing.

Ms Tlhape: Thank you Chair.

Chairperson: Thank you. Hon Herron?

Mr B Herron (GOOD): Thank you Chairperson, and thank you Ms Motsitsi. I won't be very long. I guess, as with other witnesses, I'm struggling to understand how you are helping the Committee. The Public Protector is charged with four charges and in terms of those four charges, I'm struggling to understand how you help this Committee make a decision with regards to those charges. It seems as though you are here to give evidence in relation to charge four where the Public Protector is charged with intimidation, harassment or victimisation of staff. Is that correct? Is that what you're here for?

Ms Motsitsi: No. There was this misconception about outreach clinics. I think the presentations were on the numbers and these numbers that increased, and I had to give clarity on the outreach strategy. I came to provide evidence around that strategy.

Mr Herron: Sorry, so you are here to provide evidence on the strategy?

Ms Motstisi: Yes. To clarify the issue of strategy and the working environment. And obviously, as you're dealing with the evidence leaders, unfortunately, when this whole thing started, I was on my way out and broken.

Mr Herron: The part of your affidavit which talks about the working environment on page 4213, paragraph 93. You talk about the manner in which the Public Protector spoke publicly about the work she received to the meetings attendees made me feel humiliated, embarrassed, victimised and belittled. Are you there trying to assist the Committee in reaching a decision around charge four or not?

Ms Motsitsi: By the way, could you read charge four for me, Hon Herron?

Mr Herron: Charge four is intimidation, harassment or victimisation of staff, the Public Protector or at her behest by the former CEO, Mr Vussy Mahlangu. Also, she failed intentionally or in a grossly negligent manner, to manage the internal capacity and resources of management staff investigators, outreach officers in the Office of the Public Protector.

Ms Motstisi: Hon Herron, although I cannot go into details, and I requested evidence leaders that I don’t want to talk about the reasons I was retiring. But the conditions made me decide that in five years I am leaving employment because I could not withstand the environment. That's why I came and I discussed the facts and what was happening, but I didn't want to dwell on the facts that a person can decide that now I'm giving up, this is not working. It has affected my health dismally.

Mr Herron: So is your answer, yes, that you are also here to help the Committee with charge four around intimidation victimisation or harassment?

Ms Motsitsi: Yes.

Mr Herron: Okay. And you are an attorney from 1997?

Ms Motstisi: Yes.

Mr Herron: I assume that you've read Section 194 of the Constitution which deals with the removal from office of the Public Protector?

Mr Motsitisi: Yes, I’ve had sight of it.

Mr Herron: That the Constitution requires that two thirds of Members of the Assembly agree with the removal of the Public Protector due to misconduct or incompetence or incapacity?

Ms Motstisi: Yes.

Mr Herron: And are you also aware of the certification judgement in the Constitutional Court in 1996, where the Constitutional Court required greater protection for the Public Protector and the Auditor-General, in terms of removal?

Ms Motsitsi: Yes.

Mr Herron: Yes. You understand that the incumbent of the Public Protector's Office is protected by this Constitution from arbitrary removal?

Ms Motsitsi: Yes.

Mr Herron: The issues that you've complained about, like not getting credit at a meeting and working late and audi letters – although you seem to not have a problem so much with audi letters in reply to the questions you were just asked. Do you think that this conduct that you describe amounts to misconduct on the part of the Public Protector? That it breaches the constitutional test?

Ms Motsitsi: I have given you my evidence, Hon Herron. It’s for you and the Committee members to decide and make your recommendations. All I can do is just give you my evidence regarding the environment and the outreach clinics and any other thing I have testified on.

Mr Herron: Thank you. But I'm trying to understand why you would put in paragraphs like paragraph 93 where you talk about attending meetings where you have to feel humiliated, embarrassed or victimised. I think one of the other paragraphs earlier you make similar kinds of comments. As a lawyer do you regard the conduct or the environment or an unreasonable boss as meeting the level of misconduct that the Constitution anticipated as required to remove the Public Protector?

Ms Motstisi: I am not going to answer as a lawyer, Hon Herron. I'm saying you as the Committee are going to look at the evidence that I have provided, see if it meets the standard and then make a decision and recommendation based on that.

Mr Herron: What do you think that standard is when it comes to employee relations and misconduct?

Ms Motsitsi: Do you want me to say on the balance of probabilities or beyond reasonable doubt?

Mr Herron: Well, you are a lawyer.

Ms Motsitsi: If we talk about two thirds majority, it's way above the balance of probabilities. It’s a strict standard. But I have given my evidence, it's for you, as Committee Members, to look at the evidence that I have provided, discard what is irrelevant and use whatever is relevant.

Mr Herron: Thank you. In paragraph 103 of your affidavit, you indicate that the working environment has changed and stress levels reduced. You retracted your request to retire early?

Ms Motsitsi: Yes, yes.

Mr Herron: What changed in the environment?

Ms Motstisi: Firstly, it was when I submitted my early retirement, knowing that by July, I’d be out of the Office and starting a new life somewhere. Then I was given a real audi where the CEO, management and HR managed to engage me about my condition. That okay, you have applied for early retirement and you have to pay something like R1.2 million and that cannot be allowed and I agreed with them. Then they wanted to find out from me how can they support me. The complaint that I've been relating to them is that I'm the only Executive Manager who is managing two branches. I’m managing Complaints and Stakeholder Management (CSM) which is a branch programme on its own and I'm also doing Investigations and one does not talk to the other. With CSM, at some stage I was reporting to the CEO, But because I couldn’t report on outreach clinics, about MOUs and about other things to the CEO, then came this phase where I'm managing Investigations and I report to the COO. It was so confusing to the extent that I even lodged a grievance because I felt that I was the only one who was doing this. All EMs are doing investigations, they are forever in the office, they can follow up. But with me I have to come back to the office in the evenings to convene the chief investigators; there were two chief investigators that were reporting to me and one provincial manager. At night you have to phone investigators, because now you're managing investigators virtually. This new model involved being allocated chief investigators and then you are allocated staff from various offices.

Mr Herron: I'm going to run out of time if you give long answers. You saying that after that audi engagement you work environment…

Ms Motsitsi: Yes. The ‘good’ audi where Investigations was removed from me. That was minus one. Later it was, no, we are going back to normal operations. So the phases were done away with. Now you draft a plan and focus on the Annual Performance Plan (APP). When it comes to the engagement with reports, it's something that as a legally qualified person you are invited and you see the debate and the arguments and nobody agreeing on anything and a decision being taken. We end up owning a report. So the environment changed dramatically.

Mr Herron: I have one last question. I want to get clarity because your affidavit deals with audi, and you've been questioned a lot about these audi letters. But in response to Hon Tlhape’s questions, you said that the audi letter is a very important tool. So do I understand it – and you've just said you had an audi that resolved one of your problems, your work environment – that you don't actually have a problem with audi? You said elsewhere that at Home Affairs, audi was conducted orally; in the Public Protector’s Office audi is conducted in writing.

Ms Motsitsi: Orally and writing. There are those that are in writing. Remember, I still have to submit the ones that I got in writing from Home Affairs. Audi is a listening… That is why I mentioned in a light spirit that I was given an audi from the CEO about my retirement. So it's an audi in a good sense, that someone is listening to me.

Mr Herron: Can I interrupt you. I just want to get the answer. You are not here to complain about audi letters?

Ms Motsitsi: Audi letters are a good tool for a manager, I repeat but it has to be used appropriately.

Mr Herron: Of course. Thank you so much. Thank you, Chair.

Chairperson: Hon Hendricks?

Mr G Hendricks (Al Jama-ah) Thank you very much, Hon Chair. Thank you very much to the witness for taking the time to assist the Committee. I would like to understand whether the witness agrees with me that one of the reasons that the Public Protector's Office was established, was to ensure speedy resolution of complaints, for example, against government and government officials. We also heard earlier from Hon Herron that this is possibly the cornerstone of our Constitution to such an extent that the Constitutional Court made it more difficult to remove the Public Protector. We as Members of Parliament must take the lead from the Constitutional Court that we need to protect the Office. We've heard a lot of evidence that the Public Protector is very strict with regard to deadlines. We can understand that because just recently, several political parties marched to the Public Protector's Office to demand a report. I can imagine that the Public Protector has many such pressures. If we take guidance to determine what is a speedy resolution, the only thing I can think of is the CCMA, where disputes must be resolved in three months. We have heard that disputes or complaints dragged nearly a year or more. And one can understand that the Public Protector in trying to carry out a constitutional mandate, has to crack the whip. I don't think Parliament or the nation can fault the Public Protector for not cracking the whip. Why do you see that as possibly a legitimate reason the Public Protector should be disciplined or even removed? Isn't that one of her core functions to see that there is a speedy resolution of complaints?

Ms Motsitsi: Thank you, Hon Hendricks. Well I heard several questions from you. Firstly let me try and explain. We have classification of cases, which include Early Resolution matters, which can be finalised within six months. Then we have Service Delivery matters, which in terms of our service standards can be finalised within a period of 12 months, and then we have GGI matters, which can be finalised within 24 months; and then GGI complex matters, which can be finalised within 36 months. We also have Executive Members Ethics Act (EMEA) matters, launched in terms of this Act, which must be finalised within 30 days. However, we also added another category, well we are still working on the service standards for this, but we call it Emergency cases. I gave an example of the student who wanted to commit suicide. We got it from a member of the public writing a Whatsapp about a kid who could not get a certificate. Immediately that is an emergency matter because you can’t waste time. Once I get a complaint like that, I immediately contacted that student, just to say ‘I hear you, I am doing this, please give me until tomorrow.’ The following day I sent an investigator directly to the Department of Higher Education and Training (DHET) and said the student must meet with the DG to understand what could be the issue regarding the certificate; only to discover that it is University of South Africa (UNISA). We went further and the matter was resolved in the week. If you look into the investigations in the PPPs, the documents were in boxes and boxes. If you look at the amount of evidence from people that you have to engage regarding that, it's taking years. So the Public Protector is taking into account the service standards, and the nature of complaints. The EMEA matter where political parties marched to the Public Protector’s Office yesterday, that case must be resolved in 30 days. While I am not in Investigations, I know the PP can grant extensions upon request. It still comes to the nature of the complaint itself and the condition that extensions can be granted. You look at their nature, they are all emergencies, they are complex cases – you will find a case from Gogo Dlamini or from the CEO.

Chairperson: Thank you. Hon Hendricks?

Mr Hendricks: From your experience, what percentage of cases, say over the last 10 years, are classified in such a way that it can be resolved longer than six months?

Ms Motsitsi: I’ll have to work out that information for you, Hon Hendricks. Firstly, we didn't have a system until last August 2022. So we worked from the spreadsheets. I think our spreadsheet dates back from 2011, but that is information we can avail to the Committee.

Mr Hendricks: Tell me, we have four main cases that are being used to say that the Public Protector should be fired. Those four cases in terms of the classification that you outlined so well. Can you give us an idea of how many months for each of the four cases in terms of the existing practices, these cases should be resolved?

Ms Motstisi: Okay, that is information that can be provided by Investigations (Unit). Yes, I'm responsible for intake and assessment. And once a matter is located, it goes to (the) investigators, and they finalise and we have a report. So that information I can track from our remedial action reports, or issued reports, but that’s not readily available to me right now.

Mr Hendricks: Has the Public Protector been very negligent in not chasing up the resolution of cases? Has she ignored this important responsibility of the Public Protector's Office? Did she just allow cases to drag on and drag on? Or did she give due attention to making sure that cases are resolved as speedily as possible? Which was one of the main reasons in Al Jama-Ah’s opinion that the Public Protector’s Office was established because the drafters of the Constitution realise that court processes can take very long, and certainly, there needs to be a mechanism like the CCMA for speedy resolution of disputes.

Ms Motsitsi: Hon Hendricks, I didn’t get the question. Could you please repeat the question so I can respond?

Mr Hendricks: Yeah, the question is can the Public Protector be faulted for dragging her feet to make sure that cases are resolved speedily?

Ms Motsitsi: No. As I mentioned, repeatedly, the Public Protector is results-driven, hardworking and dedicated to her work. No one is faulting her on that. When it comes to reports I know that she is conscious…

Mr Hendricks: So would you give her a ten out of ten for that?

Ms Motstisi: For what?

Mr Hendricks: Would you give her a ten out of ten for cracking the whip to ensure that cases are resolved speedily?

Ms Motsitsi: I am not in a position. I am not an expert. I need to have standards to say it is four out of ten or eight. But I can tell you that she is results-driven and hard-working.

Chairperson: That is your last question, Mr Hendricks.

Mr Hendricks: So having been an Acting CEO and COO, you don't regard yourself as an expert to give this Committee an opinion whether she should get 10 out of 10?

Ms Motsitsi: I don't have those standards having been a CEO; having been a COO; having been an Executive Manager; a Provincial Manager. I must have parameters that I use to give a conclusion out of ten. So I don’t have the parameters. You have to measure.

Mr Hendricks: Thank you very much. I’m sure the Committee will take note of your responses and weigh it up against what you said in your responses.

Chairperson: Thank you. I now recognise Hon Maneli.

Mr B Maneli (ANC): Greetings to Hon Members, the PP Adv Mkhwebane, her legal team, led by Adv Mpofu. Also greetings to Ms Motsitsi.

Ms Motsisi: Good afternoon Hon Maneli.

Mr Maneli: Just to go back, is it your evidence that you were not involved as Acting CEO in the recruitment of the Acting CFO?

Ms Motsitsi: No, I acted from December 2017 to March 2018, so it was three and a half months. The Acting CFO was there. Maybe the CEO who was there, Mr Themba Dlamini, is better placed to respond to that question.

Mr Maneli: That is the point that I wanted to get to. That you were not necessarily involved at the time and for that reason you would not know the recruitment process and the decision to go the SSA route instead of any other department?

Ms Motsitsi: Yes.

Mr Maneli: You would have come to knowledge of this only at the time of introduction of the Acting CFO, and the conditions thereof, that it would be coming at that cost?

Ms Motsitsi: Yes, that was the briefing that I got.

Mr Maneli: Having clarified that point, Chair. I want to focus on the letter that the CFO wrote about austerity or cost containment measures. Reading the letter, there is a point there that talks to the PPSA having exhausted its budget and faced with challenges of paying external parties, hence a need to raise even an overdraft. I want to check, will these external creditors that still need to be paid, also include litigation matters that needed to be settled?

Ms Motsitsi: I think he mentioned in his motivation those cost drivers. He mentioned the payment of salaries, legal costs, and IT where the money was spent and resulted in the overspending.

Mr Maneli: Chair, through you, can I repeat the question? I did read that but I want it for the record and my notes that by legal, over and above everything else, you are referring to those creditors that may have been involved either in the review of cases as part of your litigation. They were part of those that you would need to raise an overdraft to try and settle the accounts?

Ms Motstisi: We looked at commitments, and then obviously once you look at the budget, you do projections. You first look at the salaries, whether you'll be able to pay salaries and commitments. Then we discovered that we won't be able to cover the commitments. That's when I said I wanted to know clarifications regarding those things. I was given those four things, that caused us to seek the overdraft. Unless I don’t understand the question.

Mr Maneli: Through you, Chair, I think my question relates to legal costs, because what I'm testing Chair, is that the PPSA would have exhausted its budget. The letter does say that you were already overspending over and above that, you need to raise an overdraft. I wanted to check if the overdraft is raised to cover those law firms or any other creditor used in the litigation. Now the importance of the question, Chair, in my view is to test this part of how the rising litigation costs would have affected PPSA operations, which I'm still going to come to, as stated in the recommendations in the letter.

Ms Motsitsi: Okay, I think I hear you now. In paragraph 3.5 the CFO is saying the institution is currently unable to meet all financial obligations and an amount of R40 million is immediately required to settle all liabilities, due to external purchases, by the end of the current financial year. It included as a priority salaries and then those commitments that we had. But apportionment of the amount, I am not sure as to how we're going to actually apportion. I know there was a suggestion we're going to negotiate with service providers so that we don't pay the full amount. But those details were worked out by the Director: Finance, and the Acting CFO.

Mr Maneli: Thank you Chair. I think I have been answered on that part, even if I don't get the numbers. I just wanted to get the principle and I think I have been responded to. On recommendations, if one takes 7.3, you would agree with me that what is indicated there is that the core business which is outreach, specifically mentioned by the CFO, as well as investigations, so would you then agree that with these costs, the core business of the Public Protector's Office would have been compromised completely, especially if you implement these austerity measures as they are before us?

Ms Motsitsi: I think our outreach targets were exceeded because the plan for 2017/18 were 700 and something and the achievement was 806 clinics. When it comes to the outreach target it was done. I think when it comes to investigation, you can see that it says outreach programmes investigation will require travel. You cannot finance motor vehicle-related expenditure. Most of the investigations are desktop investigations, so they would be affected. But I can’t speak on behalf of investigations. From an outreach point of view, the targets were already exceeded. If you say you're going to at least cease doing outreach, the APP part would not be affected. But if you want to do more over and above the 806 clinics; then we couldn’t do that.

Mr Maneli: Thank you. Through you, Chair, a follow up to that question. Then you also agree that if you're going to be focusing only on desktop investigations, it therefore says that if there was a need to go out, such investigations are being compromised in terms of thoroughness?

Ms Motsitisi: Most definitely. They would be compromised for the duration from the date of February until end of the financial year. I want to add that the R50 million overdraft was going to be paid the next financial year. So when you get your R320 million budget for the next financial year, minus R50 million to pay the bank overdraft, you start the financial year already limping.

Mr Maneli: Thank you, Chair. That is exactly my point. I was going to come to that. It doesn’t only end in that financial year, but you are hamstrung at the beginning of the following financial year. The question therefore, through you, Chair, when you are saying results-driven, what quality of results would you have expected from these investigators who need to produce these reports, having put in all these austerity measures? Probably you have support systems in place to ensure that they do deliver on the deadlines you set for them?

Ms Motsitsi: Hon Maneli, you are asking me a difficult question. As I said, the meetings were about product and a date. We had a lengthy discussion on the reports that I refused to sign because of the standard of the content of the report. If you are hamstrung in terms of resources, obviously you can be results-driven but your production is going to be compromised if you don't have resources, because in investigations you have to do inspections in loco; you need to meet with the counterparts. It will affect the results that you're going to produce.

Mr Maneli: Through you, Chair, I have two more questions to close this point. Would it be correct because we also have other witnesses that came before us who are dealing with investigations, that whilst there's an appreciation for results and deadlines but the reports get reviewed, because the quality of those reports is under question. Would it be correct to say that the competence levels would have dropped and therefore it would create the issue of incompetence? As we have many of those reports reviewed and set aside. You gave the example of the late Mr Madiba, may his soul rest in peace, as one of those that would not give a report that he is not confident of. But under these conditions, you have to meet the deadlines, whether it is a quality report or not. So will that border on downgrading competent people like him to producing reports that question the competence of such reports?

Ms Motstisi: You have types of investigators who will tell you, ‘I am going to protect this Office’, that was Mr Madiba. You can see the emails here. I put draft watermarks, to the detriment of my employment, that I am not going to allow you PP to sign this report. I am protecting you, and I am protecting the institution. I did that because when I joined, there were already negative media reports about the reports we were producing. If you produce a good product and a good report, you take ownership. You're very proud about that. You can even put your name in that report. The questioning throughout today, and it was about the very thing that some investigators, some executive managers will say I'm not issuing this report for the sake of the Public Protector South Africa. And some would decide, I made an example, where there was a cut and paste, and right in the middle of the report you find that there's information from another report and if you don't do due diligence, you’ll end up submitting that and it would be so embarrassing and you won't be able to protect yourself because the remedial action is binding.

Mr Maneli: My last question, Chair. Surely the PP, including yourselves, would understand the complexities of an investigation. You introduce austerity measures. You do not put support systems for people to perform, yet you’ll charge them for not meeting the deadlines. Would you say that's an environment where an employee would be happy to perform? Thank you, Chair.

Ms Motsitsi: Hon Maneli, that is true. If an investigator doesn't have the resources to investigate and produce a quality assurance report and you put in austerity measures that would make them unhappy. They will produce substandard reports. Once they produce those substandard reports, you'll end up now issuing an audi letter. I think that's why I was saying it's the harshest environment where there are financial constraints and there are these deadlines that you have to adhere to. But if you look at the targets that were compromised, it was for three months, and then it was going to affect the next financial year. And it went on like that until now. At least now the finances have improved where you hear that we have additional funding for other things, the procuring of computer systems. So, yes, it will be an environment where an employee wants to leave because you demand something but you are not providing support in terms of resources.

Chairperson: Thank you. I now recognise Hon Maotwe. We missed you on Thursday and Friday. Welcome back today. Better late than never.

Ms O Maotwe (EFF): Thank you very much Chair. Now I need to account on where I was. I joined the march to the Public Protector’s Office to fight for the release of the Phala Phala Farm report. But anyway thank you so much, Chair. Good afternoon to the colleagues and we welcome the judgement from the Western Cape High Court. Ms Nthoriseng, how are you?

Ms Motsitsi: I am good, how are you?

MS Maotwe: I am good. I see that you acted as CEO mid-December 2017 until March 2018. You said there were stressful things in the environment that happened and as a result, your health deteriorated. If you want us to believe that this was caused by the Office of the PP, how do you reconcile the fact that upon you coming back, you acted as a COO from mid-2018 until December 2018? If your health issues were caused by your working environment, why did you accept the second appointment as Acting COO?

Ms Motsitsi: Thank you Hon Maotwe. I think I said that the PP was good to me. She gave me the opportunity to act as CEO and I mentioned that this was a learning curve for me. I was new in the Office, by then I think I was six months in the Office. And I accepted based on conditions. I started drafting my plan to make sure that the APP, the strategy for the institution matched the resources that were allocated for Quarter 4. That's when I realised I've inherited a sinking ship, and there's no money to run the Office. That was the first stress. More so, if the lack of funds was going to affect the livelihood and jeopardise staff. Imagine if employees hear that they might not get their salaries – you won’t have a PPSA for the next quarter. I think that was the most critical priority that I had to make sure that by the time we get to March, at least we have something, looking at the importance of what we're doing as PPSA. So I put my time on that. Now remember, I put a plan… It’s a plan, looking at resources, and how I’m going to restructure and make sure that we have governance structures; make sure that you have policies and revive all those committees that were inactive. It was this dream that a COO does that. Only to discover that, you won’t be able to pay salaries and commitments which would include office rent. That was the first stress. Then it went onto, now I want to put in governance structures. I looked at the committees that were available. EXCO was managed by the Public Protector and I proposed to her that there should be an EXCO chaired by the accounting officer. If you look at the financial situation, there is no one to talk to except the CFO or the director of finance. I said you can call your meeting anything else, but not EXCO. So EXCO has to sit and be chaired by the Public Protector and be made up of executive managers and chief investigators and support functions. Then you look at the policy committee because the policies were outdated or non-existent. And I get a policy today and a policy is drafted by HR. I need to support the policy, PP has to approve. And that was another shocker that no, it doesn't happen that way. You need to present this to a policy committee, who will present it at EXCO, so that these issues can be debated and it cannot be a one man show when the HR drafts alone, you give it to CEO and the policy is approved and then it's implemented. It's those critical things. I am just giving you an example. Then there were all those issues I mentioned now, a conflict with the manager that had to be moved, financial issues and the governance. It's things that were building up on a day to day basis, Now you have to put out fires as CEO. That was a stress but it taught me a lesson in planning and budgeting. I was admitted. I came back after a month. The Public Protector called again. I mean it should be an honour that a person entrusts you with these responsibilities. And when the PP asks you ‘can you please assist’, you can’t say no. You really cannot. That is the person that she is. And that's why I said I will do these things because now as Acting COO I'm going to deal with investigations, which is my passion. I’m legally qualified and I could manage investigations but only to discover it's not the debates like at the full bench, where you discuss the merits, the substance and whether someone has done enough to research. It was a real disappointment. I decided let me go back to my post as Executive Manager: Complaints and Stakeholder Management. Both those positions were not what I expected.

Ms Maotwe: Okay, that was very comprehensive. I see in paragraph 103, you say that you reached a point where you even wanted to apply for early retirement. You even give notice and intended to apply for medical… but due to a much improved working environment and reduced stress levels, you retracted your notice. Was this after the illegal and invalid suspension of the PP, Adv Busiswe Mkhwebane?

Ms Motistsi: No, I applied for early retirement, I think, at the end of April. In fact I had given notice by December to the CEO and PP, that the doctor has given me an option to resign because I am not getting better. I said I would be 55 in June, and I would retire. By end of April, I submitted my application for early retirement, and then started engaging Government Employment Pension Fund (GEPF) and my financial advisors to see where to go from there. The minute I took that decision, my health immediately improved because I was looking forward to 1 July – you have no idea – where I could start afresh. I can tell you, Hon Maotwe, the PP sent me a message asking if I wanted to resign, and I sent her a long message about my situation. She said “Okay, I haven’t received all your information but I will approve”. Only to discover that the penalties are hefty.

Ms Maotwe: Okay. Did you work for Home Affairs before?

Ms Motsitsi: Yes, I worked for Home Affairs.

Ms Maotwe: Did you receive audi letters?

Ms Motsitsi: Yes, I still have to submit the copies of those audi letters to the evidence leaders, as requested by Adv Mpofu.

Ms Maotwe: Seeing that you also received audi letters at the PPSA, have you considered that maybe the problem is with you? Your own non-performance which resulted in you receiving audi letters?

Ms Motsitsi: Thank you, Hon Maotwe. As I mentioned, an audi letter is not a bad thing. It’s a good management tool. If the manager tells me 'Nthoriseng, can you please give audi to your staff'. I would conclude that there is a deficiency in your management style, Nthoriseng. You are not giving your staff an audi. The letter is not the best thing; it's not a bad thing. It's not about having a problem; to me, an audi means you should listen to the other side. It is a good management tool. It is what you do with it that shows that you are building the institution. I have used it to empower staff within my unit. So, audi is not a bad thing at all. It is a management tool, if used appropriately, I am telling you will get a happy staff that feels support.

Ms Maotwe: Moving on to the PEU matter. Why must the public accept having to wait four to five years for a report, as is the case with the PEU matter? If all the excuses were accepted, what would stop the report taking another five to ten years?

Ms Motsitsi: Okay, I did accept the reasons provided by Ms Mogaladi. There were matters dating back from 2012, so the matter could take that long. So obviously those deadlines that they put… you put a deadline and then the PP puts a deadline. All I’m saying is that if I give Pona an audi, I give her an audi based on the fact that I can see I have engaged with her. She is doing her job but not satisfactorily and now she is not even meeting her deadline. And now we're not going to achieve our APP targets. What you do is you listen to the other side, and then the person provides you with an explanation. You look at the explanation. That's when I said, I have two devils… You have this case, this report which is three years six months old. And then you have these negative media reports about the PPSA . You decide if I don't give her the hearing and accept these reasons, I'm going to end up being in the media as the report will be reviewed, it will be set aside and be another failure on the part of PPSA. So I had to choose the lesser devil. You must issue reports within timeframes, but I said investigations take a life of their own once you start investigating. You must now start accommodating all these things that emerge as you are investigating. So matters can take very long. It is a problem – pushing to eradicate a backlog but issuing a report that will be challenged and reviewed and set aside, is worse.

Ms Maotwe: Chair, I have two last questions.

Chairperson: You can put them together as one.

Ms Maotwe: No, they are not related but I will try. Ms Nthoriseng in your role as COO, you outlined your key role in managing the production of reports. You also mention in your affidavit how the budget was strained at PPSA?

Ms Motsitsi: As COO or CEO?

Ms Maotwe: COO. 72% of the budget is spent on salaries and only 28% on the core mandate. Is it wrong for the public to expect extraordinary performance from the employees? Especially senior managers like you, earning R1.6 million? The last question as the Chair said I should join both of them, even if they are not related.

Ms Motsitsi: Chair, with your permission can I answer this question first.

Chairperson: Yes, go ahead. Be brief.

Ms Motsitsi: Okay. Hon Maotwe, I think you were referring to when I was Acting COO, when the CFO was writing to inform me of the challenges regarding financial constraints. I requested him to put the financial constraints in writing, so we make PP aware, and then we start putting in place measures, to make sure we can pay salaries and meet our obligations. PPSA has qualified staff. They must investigate and deliver quality reports and they must be compliant. The targets set must be achieved. However, I will say again in the media space, there were negative reports about PPSA. If you really care about the Chapter 9 institutions that are doing so good when it comes to issues that affect the grassroots level, you will make sure that the next report you issue is properly done. But as you're investigating – remember I said there were about 4000 cases in the backlog – it doesn't mean that other cases will stop. You will keep on getting new matters, and that will also end up as backlog if you don’t attend to them. Now you attend to this backlog and other matters, then you will have a perpetual backlog. In essence, investigators are hardworking but without resources, they may be strained.

Ms Maotwe: Thank you. On the calibre of the person of the Public Protector. What I mean by that is the current incumbent. What should be the conduct of that person. I mean we all saw the Acting Public Protector on live TV lying to the nation that the Office is paying for the legal fees of the PP, Adv Busisiwe Mkhwebane. While we are in possession of correspondence dated 9 July 2022, suggesting that Seanago Attorneys should not be receiving any money and she actually stopped paying Seanago Attorneys. Is that ethical conduct that all of us should embrace from the PP?

Ms Motsitsi: Chairperson, can I avoid responding to that question because it has words I cannot address?

Chairperson: That’s fine. Thank you, Hon Maotwe. That was the last question. I was saying that we missed you on Thursday and Friday but you were probably watching from somewhere.

Ms Maotwe: Yes, I am watching you, Chair.

Chairperson: Okay, thank you. That would be the last question from Members. Can I check, Adv Mayosi, in terms of Directives 6.16 and 6.17, if you have any questions you’d like to raise?

Adv Mayosi: Yes, Chair, I have one question of clarification I would like to raise with Ms Motsitsi, with your permission.

Chairperson: Okay, go ahead.

Clarification by Evidence Leader
Adv Mayosi: Ms Motsitsi, I just want to clarify something with you that arose under cross-examination. Adv Mpofu put it to you during cross-examination that coming out of your frustrations and your experience when you were the Acting CEO. He said it was a good thing for the PP to respond to the workload by separating the CEO's functions, that is, by removing investigations from the CEO portfolio and leaving the CEO just with administrative functions. Do you remember Adv Mpofu putting that proposition to you?

Ms Motsitsi: Yes.

Adv Mayosi: Now your evidence was that Mr Dlamini, when he was CEO, he was responsible for both admin and investigation, right?

Ms Motsitsi: Right.

Adv Mayosi: You said that when you were acting as CEO in his position, you had the same responsibilities, right?

Ms Motsitsi: Correct.

Adv Mayosi: You then said that when Mr Mahlangu came in as CEO, for the first time there was a separation of this function. He was responsible only for admin and not for investigations, right?

Ms Motistsi: Right.

Adv Mayosi: I want to confirm and clarify with you this aspect of your response. You said that although there was a separation during Mr Mahlangu’s time, as well as when Ms Lusibane was the Acting CEO after him, now with the current CEO, you used the term 'it's back to square one', right?

Ms Motstisi: Yes.

Adv Mayosi: So is it your evidence that with the current CEO, Ms Sibanyoni, she is now responsible for both administration as well as investigations, as the position was before Mr Mahlangu’s time? Right?

Ms Motsitsi: Right.

Witness Ms Motsitsi: Closing remarks

Chairperson: Ms Nthoriseng Motsitsi, do you have any comments or final remarks you want to make to the Committee?

Ms Motsitsi: Thank you for the invitation, Chair. Thank you, Committee Members. I hope what I’ve provided will assist you in making your decision. I want to thank you for this opportunity. Thank you.

Chairperson: I still have time for you, are you done?

Ms Motstsi: I’m done.

Chairperson: On behalf of the Section 194 Committee, we want to thank you for availing yourself before us yesterday and today and spending time to prepare what you ultimately presented here. We appreciate your efforts and contributions. We hope that it will come a long way in assisting us as the Committee. Thank you and good luck for your future endeavours at Public Protector South Africa. Thank you very much. It is the end of our interaction with you. You are formally excused.

Ms Motsitsi: Thank you. Bye.

Chairperson: Let us get to our next witness. I am calling you to introduce our next witness and to do the preliminaries. Let us take a five minutes break. We will be back after five minutes.


Witness: Nelisiwe Thejane

The witness was duly sworn in.

Chairperson: Ms Nelisiwe, can you place your full names on record.

Ms Thejane: I am Nelisiwe Patience Thejane (still legally) Nkabinde.

Chairperson: Nelisiwe Thejane Nkabinde?

Ms Thejane: I don’t use both, I only use one. I can be referred to as Thejane.

Chairperson: So for this inquiry, we must refer to you as Thejane?

Ms Thejane: Yes, Chair.

Chairperson: Thank you. I now recognise Adv Bawa.

Adv Mayosi: Thank you Chair. I will be leading this witness.

Chairperson: Over to you, Adv Ncumisa Mayosi.

Adv Mayosi: Thank you Chair. Good afternoon Ms Thejane. Good afternoon Members and Chair.

Ms Thejane: Good afternoon, ma’am.

Adv Mayosi: Ms Thejane you are currently employed at the Office of Public Protector as the Executive Manager: Provincial Investigations and Integration (EM:PII). Correct?

Ms Thejane: That's correct.

Adv Mayosi: You made an affidavit for this Committee with the assistance of the Evidence Leaders, correct?

Ms Thejane: That's correct.

Adv Mayosi: You made it in relation to some aspects in the motion raised in charge four, right?

Ms Thejane: Correct.

Adv Mayosi: You say in paragraph five that in your position as EM: PII, you oversee investigations, and that from that vantage point, you witnessed instances where staff at the PPSA have felt intimidated and victimised as a result of the conduct of the PP, correct?

Ms Thejane: That's correct.

Adv Mayosi: You say that this in the main manifests itself in the demands that are made in the conduct of investigations, right?

Ms Thejane: Correct.

Adv Mayosi: You characterise or describe the PP’s manner of dealing with staff as punitive, correct?

Ms Thenjane: Correct.

Adv Mayosi: You also then make this affidavit to speak to the general culture of fear in the PPSA, right?

Ms Thejane: Correct.

Adv Mayosi: Just to go through your background quickly, you have previously worked at the PPSA as an investigator in the KZN Office between 2000-2008?

Ms Thejane: Correct.

Adv Mayosi: Then you left and you had a stint at the South African Post Office, right?

Ms Thejane: Correct.

Adv Mayosi: You returned to the PPSA starting in your current position on 1 March 2019?

Ms Thejane: That’s correct.

Adv Mayosi: In the section of your affidavit you talk about management meetings. Now much of this from paragraph 14 onwards, is already before the Committee, so I won't belabour repeating that evidence, but you do stand by the contents of that section of your affidavit, correct?

Ms Thejane: Correct.

Adv Mayosi: You say that you mention these governance meetings in order that the Committee may get a better appreciation of the context that you as managers operated in, right?

Ms Thejane: Correct.

Adv Mayosi: So you first mentioned leadership meetings, which, from your description, were EXCO meetings attended by the PP, DPP (Deputy Public Protector), CEO, COO, CFO and the Chief of Staff as well as the EMs, correct?

Ms Thejane: Correct.

Adv Mayosi: You go on in paragraph 17 to describe what leadership meetings deal with. You say that it's both management and operational matters. And sometimes there could be spill over in leadership meetings of items that were dealt with at a Dashboard or at a task team meeting, right?

Ms Thejane: Correct.

Adv Mayosi: You go on to describe the full bench meetings. You say that this is a relatively recent oversight structure that was introduced by the DPP, when she was acting as PP at a time when the current PP was on leave, correct?

Ms Thejane: Correct.

Adv Mayosi: This structure is aimed at improving the content and quality of reports, but you say that sometimes its effectiveness is often undermined because the tasks are sometimes not submitted timeously, right?

Ms Thejane: Correct.

Adv Mayosi: You say that when this happens, the full bench members then do not have sufficient time to consider and give meaningful input on the issues these reports raised, right?

Ms Thejane: Correct.

Adv Mayosi: You then mention task team meetings which is another structure which has been mentioned by other witnesses before this Committee. You described that they were typically held on Mondays and they covered priority matters that had to be monitored on a weekly basis including what you your office referred to as Complaints and Stakeholder Management (CSM) and Executive Members' Ethics Act (EMEA) matters, correct?

Ms Thejane: That is correct.

Adv Mayosi: Now moving on to Dashboard meetings and again these have also been spoken about at this Committee. Both Ms Motstisi and Ms Mogaladi in affidavit and evidence described Dashboard meetings. They described how these meetings were conducted initially, in particular, Ms Mogaladi, what they were about and how Dashboard meetings evolved over time and their focus. Do you agree with Ms Mogaladi’s evidence in this regard?

Ms Thejane: I agree.

Adv Mayosi: Suffice to say in paragraph 24 you say that under the current PP, Dashboard meetings became more intense and more consuming. This too was the evidence of both Ms Motsitsi and Ms Mogaladi. Do you agree with that evidence?

Ms Thejane: Yes, I do agree.

Adv Mayosi: Even though you do agree with that evidence and you said that you do, can you elaborate on why you say these Dashboard meetings became more intense?

Ms Thejane: When Dashboard meetings were introduced, it was to provide high level progress reports on matters, and they specifically focused on backlogs because the focus was on eradicating the matters already in the backlog and it's those matters that had already exceeded their turnaround time or time frame in terms of the timeline allocated to them for investigation. Dashboard meetings, which were attended by EMs, representing their respective units. We would then, with the input from the various provinces in my area since I was responsible for inland provinces, report on the progress of those matters; also indicate why they have not been finalised; what is the status of the investigation; what is the next product that would be produced or the outcome of that investigation. Why I say that after time it got more intense is that then the Dashboard included progressively all active matters. So the presentation itself would start from the backlog matters; what is the status of the backlog matters; the reasons for not closing the backlog matters; what is the next product; and by when. We ultimately had to then include all active matters. When I say active matters, in fact, with the later model that was introduced, there was backlog, pre-backlog and pre-pre-backlog which meant we had to report from three months onwards on all those matters that are active. It meant then each province, each investigator in each province must update their respective cases, which will then be submitted by the provincial representatives and it gets consolidated at the EM level. The concern I had with the Dashboard in such a form, which I did raise, is that the Dashboard has become an operational meeting for work that we should do as EMs and the various management levels within the structures. Just preparing for Dashboard on its own, took quite a lot of time. But also the case had not necessarily matured yet. That is why I was saying then it became quite an operational meeting, where we now had to respond to the executive authority on the steps taken on each matter even though it had not exceeded the timeframe given to each matter, which was quite time-consuming. I do believe its work that should be done at the various levels and not necessarily with the executive authority in managing day to day operations.

Adv Mayosi: You attribute what you say is the intensity of Dashboard meetings to first of all the widened scope of the meetings that they now included all active cases, correct?

Ms Thejane: That is correct.

Adv Mayosi: You also attribute the intensity to the effort or time it took to prepare for these meetings?

Ms Thejane: That is correct.

Adv Mayosi: We're going to go into those steps involved in preparing for those meetings. But before we do you say in paragraph 26 that a single Dashboard meeting could take up to two to three days, right?

Ms Thejane: Initially, Dashboards did not take that long, when we focused on backlog matters. Dashboard was held on one day for us to report back and then go and focus on the work that needed to be done. Thereafter it started to include more and more cases, as I have indicated, it then took longer, and ultimately even each investigator, the PR (Provincial Representative) with the investigators, had to attend Dashboards. So that is why it also took longer.

Adv Mayosi: Then you say that they also became more frequent in that they moved from quarterly or monthly to happening with even greater frequency if the PP required them to, correct?

Ms Thejane: Indeed. Just to expand a little bit, that was based on reporting on each matter in that each investigator had to now report on their active cases. Obviously, we could not finish in one day or two. That is why it was extended and it would last longer in terms of hours, sometimes well into the night as we go through those matters.

Adv Mayosi: Right. In paragraph 27 you say “staff time at all levels began to be consumed by providing input for; preparing for; and attending Dashboard meetings.” I think this is where you then talk about the preparations involved for such a meeting. Can you elaborate briefly for the Committee what sort of preparations were involved in these meetings?

Ms Thejane: Certainly, I will speak specifically for Dashboards. As I indicated, I do the report on each matter and the active cases also got introduced into Dashboards. Then each investigator had to provide a status update on each matter they had in the form of a memorandum. Once an investigator, if the lead is an investigator, has compiled the memo, the memo must then escalate to the senior investigator as the supervisor; to quality assure that memorandum and sign it off and then it escalates to the Provincial Representative (who would also undertake the same process). Where I refer to the Chief Investigators that would be in the case of Head Office. In the provinces, we'll be having investigators, senior investigator and a provincial representative who would then sign-off that report. It comes to Head Office to the Senior Manager who will then do the quality assurance and then the Executive Manager who will also do the same before it gets submitted to the Chief Operations Officer (COO) who must also then sign it off, then it would go to the Public Protector. During this process there would be a need in some instances to send those memorandums back, if there's not sufficient information. The memorandum itself contains a summary of the complaint; what has been done in terms of the investigation processes; leads that needed to be followed; allegation matters whether they were out within the period of time that is allocated; what have been the challenges experienced in those investigations; what is the next step that is going to be taken. So it involves all those processes. If there were any information gaps that might be deemed insufficient, it will then go back so that that information could be included before those memorandums were actually submitted. There would also be different Dashboards. That's why I'm saying it sort of progressed and changed in terms of starting with your PowerPoint presentation of all matters that are active, including those in the backlog to a memorandum. It would take different forms as the PP would dictate at that particular time.

Adv Mayosi: So in paragraph 38, you have annexed an annexure. We won't go through it because the contents of that annexure is included in the sub paragraphs below. You've annexed what you described as correspondence that you sent to the people who reported to you, your provincial representatives, regarding requirements after a particular Dashboard meeting, correct?

Ms Thejane: That is correct.

Adv Mayosi: You sent this email to them on 9 March 2020, telling them you needed submissions from them by 11 March 2020, to consolidate the submissions and present them in the required format. Was this in preparation for a Dashboard meeting?

Ms Thejane: Yes, it was in preparation for a Dashboard meeting.

Adv Mayosi: Are you able to contextualise this request to your team, briefly, for the Committee?

Ms Thejane: For this particular Dashboard meeting, in addition to the normal reporting on the cases in the old backlog – each category was identified or defined for this period, we had to provide the reasons for failure to finalise cases older than two years as per deadline set; and new cases. I have indicated backlog means those cases that were older, and then because it's a moving target, there would be new cases that would then be exceeding their time frame. Then those ones were then called the new cases that are now in the backlog. Reasons for failure to meet the six month turnaround times for matters classified as early resolution matters. Then reasons for failure to meet the 12 month turnaround times – those would be your service delivery matters, and so forth. So the responses and a memorandum had to be compiled in that manner in the category of the classification of all the cases, and the reasons for failure not to meet the deadlines. Also any matter that had been reclassified for any reason, maybe its initial classification was incorrect, and such things. So all that had to be contained in each memo that would then be presented to the PP and signed, at each level, with reasons the investigator did not meet the deadline. Where a senior investigator is a supervisor, they must also incorporate their own comments for not meeting the timeframe, and so the provincial representative, the senior manager as well as the EM so everyone. All the changes for each matter had to provide reasons why that particular investigation has not been completed within a specified timeframe. So the process itself, because it meant now we… I'm reluctantly saying … we needed to stop, because you have got to somehow reach a balance. On one hand, you have to explain why you have not met the timeframes. On the other hand, you also don't want the very same investigation to stop because it must still continue. And every investigator is still allocated new matters as well. So that is why the process itself was quite time consuming.

Adv Mayosi: Right. So you put up this evidence to demonstrate your point that the reporting requirements for these meetings were quite substantial and they affected every level of the organisation as a whole, not just executive management, right?

Ms Thejane: That's correct.

Adv Mayosi: You say that it became problematic for executive managers to oversee operational matters that fell under their control because they were constantly either in meetings or preparing for those meetings, correct?

Ms Thejane: Correct, in that there were meetings during the day like any other business. So when you have to prepare for a presentation and also follow up on other work it meant that once you were not in a meeting you then focus on those other activities that need to be done, or you then have to do it after hours, because even these reports had their own timeframe within which they must be submitted. So that by the time we get to Dashboard, they would be in. Otherwise you had to now answer for the late submission itself.

Adv Mayosi: In the next section, dealing with the imposition of deadlines and the various backlog projects, you say that the time consuming nature of preparations, as well as the length of the meetings themselves, these were not the only challenges that were presented by Dashboard meetings, right?

Ms Thejane: That's correct.

Adv Mayosi: You say that the other challenge with Dashboard meetings was the manner in which they were conducted by the PP and the outcomes she demanded from EMs and management at these meetings, correct?

Ms Thejane: That's correct.

Adv Mayosi: Now once again, both Ms Mogaladi and Ms Motsitsi have placed similar evidence before this Committee – evidence to the effect of what you say in paragraph 62 – which is that the PP in meetings the focus began to move and her interest began to move only in the direction of what product expected was and by when. Do you agree with their evidence in that regard?

Ms Thejane: I agree.

Adv Mayosi: You say that the answer to these questions is typically informed by available information to the EMs, including the stage at which an investigation is: its complexity; the resources available to conduct the investigation; and the constraints present in that investigation. Correct?

Ms Thejane: That’s correct.

Adv Mayosi: What you then say, which also has been expressed to some extent by Ms Mogaladi and Ms Motsitsi, is that the PP did not demonstrate interest in considering factors that may be relevant to an investigation, and which might impact the progress of an investigation. Right?

Ms Thejane: That's correct.

Adv Mayosi: Now I'm going to ask you to comment as I did Ms Motsitsi, on what Mr Futana Tebele said to this Committee in relation to this issue of deadlines, which is the issue you're dealing with in this section of your affidavit, and his evidence was to the effect that the EMs choose their own deadlines. So deadlines are self-imposed by the EMs and of course, what the PP then does is to hold EMs to deadlines chosen and imposed on them by themselves. Do you have any comments to say to that?

Ms Thejane: Yes, I do. I would disagree. It's not something that I have not really articulated in my views of the deadlines. What would actually happen is as we discuss each matter and the status of that matter in terms of what needs to happen to ensure that a credible investigation is done – having reported on how far we are with the investigation itself – one would then indicate the deadline within which we anticipate to finalise that or reach the next point of the investigation. However, then the PP would say, ‘No, that date is too far.’ And for me also, who was new in the institution and having found matters that were in backlog already and the status of those matters, it was important that I take into account the complexity, the status, what still needs to be done, so that by the time we submit that matter as a Section 7(9) notice and actually the formal report, we know that we have covered the necessary grounds legally so. But the feeling would be from the PP that date is too far. So what would happen during the discussion would be PP would say ‘no, no, it's too far.’ And then you start negotiating a date that is earlier, and you say ‘no, PP we won’t be able to reach the date’ until, of course, a particular date is then set. That date is then minuted and the next time you meet, not because you have not worked towards that new date, I must emphasise, you will still do everything to try and meet that date. But you will be held by the date if you don't meet the product. That was another thing about being asked "what product, by when", because you want to explain that these are the steps still required in the investigation, while noting that in some of those matters, we may have fallen behind, but realistically to give a qualitative report and to ensure quality then this is what needs to be done in the investigation. But if you're going to be held by "what product, by when", you are only thinking about the end held by the date that you would have set. That is why my response is that then it's a date that is imposed because realistically, one knew that there is a high likelihood of not meeting that date having provided the reasons for not meeting the date.

Adv Mayosi: Now you say in paragraph 37 that the PP’s insistence on setting unrealistic deadlines and insisting that they be complied with at all costs suggested the following two things to you. You say that either (a) she didn't care about the quality of investigations and reports produced in the quest for numbers or (b) she didn't understand what is involved in investigations, or both. Now Ms Thejane, this is a fairly serious assessment to make. Do you stand by it?

Ms Thejane: Yes, and it is a very serious statement to make – not undermining the fact that indeed PP wanted matters to be finalised within the allocated time frame. And I commit myself and I share her sentiments but there would be reasons some of the investigations cannot be ready or the milestones cannot be reached within a specific time timeframe. That needs to be taken into account as opposed to just focusing on the product and its date, come what may; because then it makes people focus more on meeting the deadline but compromising the investigation itself.

Adv Mayosi: Thank you. You say you first started on 1 March 2019 and by then there were already matters identified for closure at the Dashboard, right?

Ms Thejane: That's correct.

Adv Mayosi: You say that these matters, even though the dates were set before your arrival, the failure to close them on those days resulted in you receiving your first audi in August, while you were still on probation?

Ms Thejane: That's correct.

Adv Mayosi: We deal with that audi later on in your affidavit. But the next point that you outline is the relationship between deadlines and media briefings. I'd like to briefly explain that to the Committee because media briefings has also come up from the evidence of other witnesses. What is the relationship between deadlines imposed and the media briefings?

Ms Thejane: The media briefings became quite important as we proceeded with how we did our work, obviously, in a positive way. It's a platform where we can communicate the work and achievements that we have made as the Office in changing lives and influencing good governance within public administration. So it is a good platform. However, the date for the media briefing was now set, that there would be a media briefing at the end of the month. And then we went back backwards to ensure that there would be reports that would be finalised to be presented at the media briefing. Already reports would be identified to then be presented at the media briefing and then work backwards, in terms of the dates, the way we need to submit. Some of those matters would be at different stages, others would have issued a Section 7(9) notice to the respondents. In fact, we had to now even start calling those state organs or the respondents to present us with their responses, or to discuss their responses, and the proposed remedial action in those 7(9)s, so that at least it expedites the conclusion of the investigation to meet the date of the media briefing. For example, in terms of our rules for Section 7(9), a person has 14 days to respond. But once we have now issued that Section 7(9) we would start calling and setting up those meetings, so that we can discuss. It has some positives, in some instances. In other instances, there are those state organs that will hold us to our rules and tell us give us time to respond, or maybe people who need to respond are not available at that time. Now we work backwards so that we can make sure that those reports are ready by the time we reach the media briefing itself. It did not happen all the time. There were instances where we would still be working on the reports even on the day of the media briefing itself, because they are there and they have already been identified for issue.

Adv Mayosi: So in the rush you said that the link between deadlines and media briefings – there was a rush there to complete the report so it's ready for presentation at the media briefing, right?

Ms Thejane: Yes, that is correct.

Adv Mayosi: You say that sometimes reports were finalised even on the day of the media briefing with responses being incorporated hastily to make it in time for release, right?

Ms Thejane: That’s correct.

Adv Mayosi: Now my question to you: what is the role of quality assurance in that rush to make a report ready for issuing at a media briefing? Where do the quality assurance structures play their role, such as full bench? Do they get an opportunity to play their role in those circumstances?

Ms Thejane: Certainly not, especially those that are pushed right close to the day of the media briefing or even on the day of the media briefing. It's a question of incorporating what we have received in the form of responses and it's not a simple and straightforward task. Even where we would have discussed the proposed remedial action and there is buy-in from the state organ that we agree; we are going to implement. You still have to incorporate it in consideration with the various legal prescripts and legislation applicable; make sure that the structure is more presentable; that your legal argument is raised properly as well; looking at what people can consider is maybe minor but very critical like your grammar, spelling, all those things. Such matters would not then go to the media briefing, mindful of the fact that the approach that we had to adopt was that once you issue a Section 7(9), you must start drafting a formal report. There was already a foregone conclusion that the Section 7(9) would actually give rise to a formal report. It's not necessarily the case in all instances because when the respondents provide us with their responses and the evidence, it might change the allegations made as being found to be unsubstantiated. It then changes to a discretionary notice as an intention to close. But in the process of rushing the incorporation of all the responses, it actually compromises that because you lose that opportunity of engaging with other minds in the Office to look at how you have crafted the report, how you have identified the issues and applied the law. Is it actually correct and right for the report itself to be signed by the PP and be issued as a formal report with remedial binding action?

Adv Mayosi: You give us an example of a report, the Ngcobo Phakasa matter against the Department of Health, that was settled in a rush to meet a deadline. Can you elaborate very briefly for the Committee why you say that this was prepared in a rush?

Ms Thejane: Yes. We have used one of a number of those that we had to finalise for the media briefing the day before. In this particular matter, I was not aware that a response had been received, through the Private Office, as we call it, of the Public Protector because then the details would be with a person in that office. So when I was alerted and the investigator confirmed the Section 7(9) response, then it was identified as one of those that must be included in the media briefing. However, the responses had not been incorporated in the draft formal report. We then pleaded through Acting COO, Ms Mamabolo, to defer this particular report to the next media briefing, because we were not going to meet the timeframe for it to be finalised along the quality assurance process. This one was a Head Office report. I must say, yes, the Department of Health had agreed to the remedial action but as I have also indicated before we don't even take that lightly, we want to make sure that everything is incorporated properly into the report and legislation applied accordingly. So this one the Acting COO did actually request the PP to defer to the next media briefing so we can then do a proper job to incorporate the responses but the PP turned us down. I even requested again because the investigator was pregnant at the time. But the PP posted a WhatsApp message saying 'submit the fact sheet'. The fact sheet is just a summary of the matter that gets submitted to the spokesperson who prepares the media statement. I did speak to the Acting COO. I said ‘but there are these factors, I'm really pleading, we can't expect a person who's expecting to stay throughout the night, preparing the report.’ But we had to and the PP said no, the responses are there, they are in agreement, so let us prepare the report. We had to work right through and I had to say’ please send me what you have.’ so it didn't go through the quality assurance process so that we can meet the deadline. I say that as much as I understand the PP’s drive but you also don't want to compromise the work that needs to be done and undermine the quality assurance process in case we missed something, even if it's just grammar or spelling mistakes, but we want to benefit from other colleagues as well.

Adv Mayosi: The backlog project. Now again there's been much talk here about the existence of the backlog from the previous witnesses. You first start out by describing when a backlog occurs, which is when an investigation is completed outside of the time period set out in the PPSA service standards. You say in paragraph 42 that EMEA matters must be finalised in 30 days, but as far as you're aware, that's never happened. Can you explain why it is that EMEA matters have never been finalised within the set time in the service standards?

Ms Thejane: The number of days counts from the time you get the EMEA matter. Now EMEA matters are allocated to an investigator(s) who have other matters and then they have to take priority. However, by their nature EMEA matters are usually more complex. If it were not for the fact that they're reported in terms of EMEA, they would be our good governance and integrity (GGI) matters. We appreciate that they need to be finalised within 30 days. We do put in the time that we can. But why over time we have not really been able to finalise them within 30 days, is that you still have to conduct an investigation; you have to interview witnesses; you have to gather evidence and it's usually matters where the evidence can be voluminous, I'm not saying in all instances. But you then have to work with speed. The investigator must still report on other matters as well. So nothing actually stops, even with EMEA matters. The 30 days, to be honest, is too limited with everything that needs to be done in providing a very credible investigation.

Adv Mayosi: Thank you. You say in the next paragraph what you describe as the main contributors to the development of the backlog and you identify human resource capacity in investigations, the lack of it, as being the main contributor, correct?

Ms Thenjane: Yes, it is one of them.

Adv Mayosi: You then also talk about other issues that contribute to the backlog which is historically the fact that some matters simply were not dealt with by investigators. They've been left to other investigators to deal with, in which case the new investigators have to start them from scratch, even though there's a lot of time that's elapsed in between. Correct?

Ms Thejane: That’s correct.

Adv Mayosi: Then of course, you also mentioned the decision taken to focus on older matters itself creates a backlog in the newer matters resulting in more matters coming to the backlog, given the number of complaints received at the PPSA, right?

Ms Thejane: That’s correct.

Adv Mayosi: In paragraph 44 onwards, you talk about the impact of COVID-19 as a factor and the various lockdowns that ensued from COVID-19. You say that shouldn't be ignored in the current assessment of the causes of the backlog. Can you briefly set out for the Committee the impact that COVID 19 had on human resources, and therefore the backlog itself?

Ms Thejane: Certainly. While we were working towards eliminating the backlog, and I can actually probably say for Provincial Investigation and Integration (PII): Inland, which I'm responsible for, in 2019/20, we were able to eliminate the backlog. However, because of COVID-19, going into a total lockdown, and facing uncertainty globally, we could not work with the speed that we wanted with every other state organ, which would be our respondents as per our mandate, they were on lockdown. Like us, not everyone had even the tools of trade, in the form of laptops and in the form of data. It's something that had to be rectified later, because it was mostly EMs and other management in other units, who had laptops as tools of trade. So from total lockdown to a period where we could come back to the Office on a rotational basis, to adhere to lockdown regulations, that on its own had an effect on our work and how we deal with all matters not just the backlog, the speed that we work because there are many actual instances where investigators would write to the state organs and they would inform us that they cannot respond because the person who has access to that information either has COVID, is self-isolating or the office had to close. Even our own offices had to close from time to time because of the effects of COVID. The other challenge that we had, because we had had to come up with a recovery plan at some point, is the lockdown restrictions were relaxed but still operating on a rotational basis, in line with the social distancing regulations in the office. Reporting on such matters, we could not achieve the next milestone, or deal with those backlog matters because of COVID. People were not actually amenable to that. So what I would actually do because the colleagues, investigators and PRs, would submit their reports on the status of their matters and would indicate lockdown, lockdown, lockdown – and the PP would not accept it. She would say but the Head of Department (HOD) is there; send to the HOD and use the three-strike rule. The three-strike rule is issuing an allegation, give them time to respond as per our rules and then issue a reminder, the next is a subpoena. Now when you're in lockdown and people are getting infected with COVID, it doesn't work as smooth as that to use your three-strike rule because you understand the effects of a pandemic. But that was what was expected. We had to actually submit proof of those emails and any other correspondence where people were responding and saying due to COVID they cannot provide us with the response or the information that we require. Those are some of the issues that we were saying in looking at the backlog, you must factor in the effects of COVID on our operations, not just PPSA but even the respondents that had to provide us with responses and with supporting documents as well for this period while we were on various levels of lockdown.

Adv Mayosi: You say in paragraph 46 the PP used references to the lockdown as an 'excuse not to work'. Correct?

Ms Thejane: Indeed that's why I've said she would say 'but the HODs are available so they must respond'.

Adv Mayosi: You make clear in your affidavit that you share the concern of the PP and the other EMs, that the backlog eradication and preventing the accumulation of a further backlog must remain a priority at the PPSA. Correct?

Ms Thejane: Correct.

Adv Mayosi: You say that in order to deal with the backlog and move investigations along from time to time you talk about various mechanisms or interventions that have been embarked upon since you arrived at the PPSA from 2019. Right?

Ms Thejane: Correct.

Adv Mayosi: The first one you mentioned is when you arrived, I think Ms Baloyi had also just arrived and she assumed the position of COO. She also had to deal with the backlog and you say she had some success in doing so working together with the team, right?

Ms Thejane: That's correct.

Adv Mayosi: Mr Lucky Mohalaba when he became COO also prioritised it. You make reference to a conceptualised project plan for backlog of old matters that had a target of resolving 272 GGI matters in total by 30 September 2021. Correct?

Ms Thejane: That's correct.

Adv Mayosi: Now how was this deadline of 30 September 2021 arrived at?

Ms Thejane: Well, it was decided upon by the PP.

Adv Mayosi: Right. You say that this deadline was of course unrealistic for various reasons, right?

Ms Thejane: That's correct.

Adv Mayosi: We'll get into those reasons a little later when we look at the CEO's assessment of that project. But further on, you say that you and the other executive managers, Adv Stoffel Fourie and an Acting Executive Manager, were the sponsors of the project, whilst Mr Mohalaba was the project owner, right?

Ms Thejane: That’s correct.

Adv Mayosi: But he then left the organisation in October 2021?

Ms Thejane: That’s correct.

Adv Mayosi: You make reference to an audi letter that you received in October 2021 when the backlog project deadlines were not complied with, correct?

Ms Thejane: Correct.

Adv Mayosi: Let's go through that audi… It’s NN2 at 4381. Is that the letter you received?

Ms Thejane: Yes, it is.

Adv Mayosi: You say that the other executives, the two other project sponsors, Mr Fourie and Mr Dlamini also received similar letters, right?

Ms Thejane: Correct.

Adv Mayosi: Just going through the letter addressed to you by the CEO. It talks about you having been sent a consolidated project plan on the 15th where she had requested all EMs to give their inputs regarding old cases, right?

Ms Thejane: Yes.

Adv Mayosi: She says in paragraph three, that she sent a reminder to the CEO on 18 August, telling him that she hadn't received a response from any of the EMs. And she tells you that it seems like you've decided to ignore her as no one, including you, responded to any to her requests or provided any input. Right?

Ms Thejane: Correct.

Adv Mayosi: Then she says in paragraph five she didn't receive any feedback regarding the project implementation or challenges thereto. As a result, you failed to achieve the targets as set out in the plan. This letter serves to request your explanation as to why you conducted yourself in this way and why disciplinary action shouldn't be taken against you. And she wants a response by a certain date, correct?

Ms Thejane: Correct.

Adv Mayosi: You say you responded to this letter, and your response is at 54387. Is that your response right there? Can you confirm that’s your response?

Ms Thejane: Yes, it is.

Adv Mayosi: The crux of your response begins really, the meat of it, on paragraph four, where you take note of the email sent by the CEO on 15 August and you record that was in fact a Sunday and not an official working day. You see that?

Ms Thejane: Yes, I do.

Adv Mayosi: You also point out in that paragraph in fact you were on leave when she sent that letter, with your last working day having been Friday 13 August, correct?

Ms Thejane: That's correct.

Adv Mayosi: Then in the next paragraph five, you explained to her that you have left Adv de Waal who's the Senior Manager as acting in your position during your leave, correct?

Ms Thejane: Correct.

Adv Mayosi: You say in paragraph seven that you had communicated your leave and the person who was acting through the internal communications on 16 August, right?

Ms Thejane: Correct.

Adv Mayosi: Can you read what you say in paragraph 8, please?

Ms Thejane: Paragraph 8, I said “I further wish to draw your attention to the email from Mr Futana Tebele and the date thereon which records as follows…” It is an email from Mr Futana Tebele, as indicated, sent on 17 August 2021 at 20:18 to Stoffel Fourie and Vusumuzi Dlamini and various people. It says, “Good day colleagues, I am making a follow- up on the request below. To date, I only received consolidated project plans for PII: Inland”.

Adv Mayosi: That’s your unit, right?

Ms Thejane: Yes, it is. It goes further to say “Kindly assist in submitting the project plans for Head Office – GGI and PII: Coastal for consolidation and submission to COO. According to the email below, the information must be submitted to PP by Thursday 19 August 2021. And I will need the info by tomorrow to consolidate.”

Adv Mayosi: Right and you point out then in that way to the COO, that email shows that by the time she sent her reminder email on 18 August to the COO, your unit had in fact responded and this was the only unit that had done so as at that date, right?

Ms Thejane: That’s correct.

Adv Mayosi: Right. Going back to the affidavit now; let's leave the annexure. Oh, you say that the CEO then addressed another letter to you, regarding this matter, and she did so on 17 December, correct? That’s NN8 at 440. Let’s go there. Is that the letter?

Ms Thejane: Correct.

Adv Mayosi: The CEO here is acknowledging the response to her audi letter. She says a number of things in the first three paragraphs, but I'm interested in paragraph four, the second sentence where she said “The fact that you did not make an attempt to raise the issue of unreasonable timeframes, as the former CEO informed you that the due date was not negotiable, is still not acceptable to me.” You see that?

Ms Thejane: Yes, I do.

Adv Mayosi: So the deadline that you say was set by the PP of getting rid of the backlog by 30 September 2021, I take it from this that it was not negotiable, even in the face of the inputs that you had given correct?

Ms Thejane: That's correct.

Adv Mayosi: then the CEO says in paragraph five, second sentence again, “I wish to implore you to commit to the eradication of the backlog matters by working with the Acting COO to ensure that the backlog project is completed by 31 March 2021. Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: Seeing as the date of this letter is 17 December 2021. The March 2021 is a mistake, she clearly meant to say 2022, correct?

Ms Thejane: Correct.

Adv Mayosi: Now this new date for the conclusion of the backlog project, 31 March 2022. Did you as an EM take part in arriving at this new date for the eradication of the backlog?

Ms Thejane: No, necessarily not. It was just a question of saying it must be finalised by the end of the financial year.

Adv Mayosi: Back to the affidavit, page 4362 in paragraph 55. You say that after that the CEO submitted a report to the PP and the DPP responding to the question posed to her of what corrective or disciplinary action was to be taken against you and the other EMs for having failed to meet 30 September 2021 deadline, right?

Ms Thejane: Yes.

Adv Mayosi: Go to 4402. This is the CEO’s memo, correct?

Ms Thejane: Correct.

Adv Mayosi: Where she just gives a background in 2.1 and mentions the consolidated project plan that you referred to earlier in your evidence, correct?

Ms Thejane: Correct.

Adv Mayosi: It was conceptualised and approved in August 2021. It effectively commenced on 17 August, and its end date was 30 September, and it therefore ran for a 44 day period, correct?

Ms Thejane: Correct.

Adv Mayosi: It was to eradicate in that 44 day period 159 GGI matters that were two years and older and 113 service delivery cases that were 12 months and older. Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: She mentions that the objective was to finalise all of these matters so that PPSA could focus on current complaints and initiate systemic investigations, right?

Ms Thejane: Correct.

Adv Mayosi: So by 29 September 2021, can you tell the Committee what progress had been made in relation to resolving their service delivery matters?

Ms Thejane: 52 of them had been completed.

Adv Mayosi: the rest?

Ms Thejane: There were still 40 outstanding for Service Delivery (SD).

Adv Mayosi: Alright. By the same token, how many GGI cases had been resolved at that date?

Ms Thejane: 35 had been completed, others were still at various stages, with six ready to be signed off and were in the Private Office. 23 were still to be completed at branch level, and 15 at Section 7(9) stage for final approval. 27 at Section 7(9) draft stage. So there were still 95 outstanding.

Adv Mayosi: Right. In section five of her report, the CEO speaks about the corrective action to be taken for failure to achieve the targets. She notes in 5.3 that after the resignation of Mr Mohalaba, Ms Lethabo Mamabolo was then appointed as the Acting COO. She mentioned in 5.4 an initiative which the Acting COO undertook after she took that position, where she had extensive consultations with all the investigative staff in the provincial and regional offices on the proposed new investigative model. Part of those consultations focused on identifying the reasons cases at PPSA were not finalised in their turnaround time. According to the CEO, that consultative process revealed 29 root causes why cases were not finalised at PPSA within their turnaround times. Those are set out there. But my question to you is, in your view what are the most critical root causes that are identified and outlined here?

Ms Thejane: I would start with 5.4.2. We had not been applying the provisions of Section 6(9) of the Public Protector in terms of the two-year rule. That meant that we took on matters that had we applied Section 6(9) effectively, we would not have taken them. They already increased our numbers. 5.4.4, the mandate itself is wide and matters are allocated to investigators based on the caseload per investigator. So, you have to read widely depending on the nature of the complaint itself; research the legislation itself and the documents coming through that you must go through properly. 5.4.7, in some instances we do not get cooperation from state organs that need to respond to us, which then takes longer as you try to engage. Yes, in many instances, it would result in subpoenas being issued to get that information we need. But there are delays in the value of the information because sometimes cooperation may result in state organs responding to us but it's the value of the information that they have given us. So those are some of the key issues that affected our work and the pace at which we would finalise those investigations. It's all included into that table there, but those are more key.

Adv Mayosi: On the next page, are there any there that you would view as being critical?

Ms Thejane: 5.4.9, there is an issue of skills or complexity as well as people who would work and be able to understand each issue based on maybe their background how they can be able to appreciate the issues, identify the issues and deal with them, which goes to training as well, that will then affect how we do the work and the speed that we do our work. Staff will then also get tired, resignations and in positions that at the time due to financial constraints, were not filled timeously so we had to prioritise certain positions; people going on sick leave, some because of fatigue. Those were some of the issues really that have affected our turnaround time and the speed at which we actually work. 5.4.13 as well is quite critical, because if you don't have stability, at that level, you have a COO, then the COO is gone, then we get another one. They have different styles and they put measures in place that are different than we’d have to change. So stability also is quite critical.

Adv Mayosi: On one of these identified as the root causes, 5.4.5 ‘Short notice requests and frequent ad-hoc requests from Head Office and meetings disrupting investigations and workflow’. That talks to what you described earlier as to the intensity and the length of meetings, and how they diverged time away from actually doing the work of investigation, correct?

Ms Thejane: Yes, that is correct. There would also be intervening requests from Head Office, especially since we were operating on a manual peak management system. When there's a requirement for statistical information, then it would be required in a different form and then you would stop everyone because of the urgency of the information where the provinces would really complain quite a lot, but you are not given sufficient time. So it's trying to dedicate time to a number of competing activities, all requiring the same priority and agency for various reasons, that would also affect or shift the focus from what people were working on in achieving those targets to something else. In fact, with the backlog the instruction that came from PP is that… in fact, we were questioned at some point that it seemed like we are pushing numbers. I must say I was affected when I was acting at Investigations because that is where the highest backlog is, and we pushed. When we achieved at the end, not eradicating the whole backlog, but when we showed the milestone, the question was, ‘but you are chasing numbers’, and with that came the instruction, that everything must be closed at EM level; and we must actually submit those closing reports to the COO at the time, who was Mr Mohalaba.

Adv Mayosi: Okay, thanks. Continuing with the CEO’s report. In paragraph six under the title ‘Determination’, she says at 6.1.1 that “It’s a fact that a number of the projectised matters were complex in nature, especially the GGI matters.” Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: In the next paragraph, she refers to the number of cases that had to be finalised in this project. There were 272. She describes the nature of the work that still has to be done. And she says in the last sentence that “this was, in retrospect, not possible under the circumstances.” Do you agree with this?

Ms Thejane: Yes, I do.

Adv Mayosi: She notes that in addition to what she said above, “The investigations of matters that were not part of the project had to continue and comply with their own turnaround times to avoid the creation of a new backlog.” Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: On the next page, 4408, she points to something positive, however, in dealing with this backlog. She says, “Despite all the challenges and the work pressures caused by the project, the investigation teams managed to exceed the APP target of 12 investigation reports for the third quarter by 18, resulting in a total of 30. Which is indicative of their commitment and the hard work that was put into the project.” Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: In 6.2 in the second sentence she said “In as much as it is accepted that the aim of the project was to finalise old cases that were supposed to have been finalised some time ago, one should carefully reflect on whether the standard set by the project was realistic and achievable.” Your evidence is that it was not realistic, nor was it achievable. Is that correct?

Ms Thejane: That's correct. But we worked towards it, I must add. We really put all the focus to work towards it. So it's not that we just sat back and said, ‘Well, we know that it is not achievable, so we were not going to do the work.’ We put in the work right into the early hours into the project to achieve it.

Adv Mayosi: Correct. And I think the CEO does acknowledge that by stating that there was a fair amount of success, even with all those challenges. She does say in 6.3, “It then has to be considered whether it's reasonable to expect the project owner (Mr Mohalaba), project sponsors (being yourselves as the EMs) and project managers to achieve the targets set by the project within the limited resources, especially in terms of staff that are available at the time.” And her considered view was that it was not reasonable. Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: Over the page, the CEO then the made her conclusions and she said “Having considered the high targets that were set by the project against what was achieved and the many root causes subsequently provided by investigative staff for the ageing cases, it was concluded that any corrective or disciplinary action against the project sponsor and managers for poor performance would not pass the test of fairness, for the reasons stated above”. Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: She said that “It was accordingly decided to rather counsel and motivate the executives and senior managers and the rest of the investigation teams to take ownership of the new model in order to finalise the backlog and improve overall performance at the PPSA.” Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: You say at paragraph 67 that the PP was even more rigid when it comes to dealing with the backlog. I want to say the PP’s main concern though appears to have been that the complaints were old, and they had to be resolved quickly. Now, Ms Thejane, what is wrong with that? Surely that is commendable that in the case of old complaints, you may have heard Mr Mpofu talking about a complaint that was as old as five years, in the testimony of Ms Motsitsi. In those instances. Surely, it's quite commendable for the PP to want those matters to be resolved quickly?

Ms Thejane: Certainly. I agree.

Adv Mayosi: So what is the difficulty then with the approach that she has adopted in order to deal with those matters?

Ms Thejane: It was rushed. That is what I communicated in meetings, that it was rushed for a person who came in and found matters in the backlog – most critically, the stages of those investigations. While I shared the PP’s sentiments, and really stayed up with the team in dealing with those matters, but the emphasis must still be on the work that is actually done. Yes, mindful of the time it has taken and acknowledging there are certain system failures that have happened along the way. But also the complexity of those matters – because in some instances, investigators had left and once an investigator leaves, work is assigned to those remaining, taking into account a number of factors: their caseload, complexity of the matter; where does the skill lie to deal with this particular matter; what needs to be done in that matter still. But new work is still being assigned to the very same investigators as well. You still need to adhere to the timeframe for each step from the beginning of the investigation when that backlog matter is assigned to you. Did you acknowledge; did you inform the complainant within such a time? So it's a lot of factors that need to be considered. While I appreciate and share the PP’s concerns, we should not compromise the quality of those investigations, and that is why we've been found wanting. We may disagree with the courts in some of those matters taken on review. But in some instances, you say have we really been given an opportunity to apply our minds and do a credible investigation? If we do keep that in mind, we would be having less of those matters. I know it's arguable in terms of those matters that we have not been successful before court.

Adv Mayosi: In fact, you say at the end of paragraph 57, that with old matters, in particular, these matters may be even more difficult to finalise quickly, because, for example, witnesses and evidence are difficult to access or they're no longer available, or it's an investigator that was involved has left and it's given to another investigator, correct?

Ms Thejane: That is correct. And people get transferred, some even get transferred from Head Office to the province. We also inherited such an instance where a person moved with from Head Office to one of the provinces, and you have to take over from where they left off. You don't change the timeline of the project. You look at the stage of the investigation, the complexity, what still needs to be done. the cooperation required – it's a whole lot of factors that need to be taken into account while we work towards eradicating the backlog.

Adv Mayosi: in paragraph 50, you say another difficulty with the PP’s “what product, by when approach” is that “if an investigation is at an early stage, an investigator or an executive manager may not be in a position to determine what product is going to be delivered, or when it can be produced, because the investigation is just not ripe yet.” Correct?

Ms Thejane: That’s correct.

Adv Mayosi: In paragraph 60, you put up an annexure NN10, we won't go there, which is a copy of the minutes of a leadership meeting of 7 May 2019. It records that the CEO was to put more emphasis on turnaround times and that cases two years and older be completed by end of May 2019. Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: You say that this uniform approach to all old cases is unrealistic because it failed to take account of all the different circumstances you've made mention of which are relevant to different investigations right?

Ms Thejane: That’s correct.

Adv Mayosi: You then attach NN11 but we won’t go there because the content is incorporated in the affidavit. You say it is a copy of a presentation that you prepared on cases older than two years as at 26 June 2019 for some of the provincial offices you are responsible for. Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: You say this in response to the first audi letter that was issued to you by Ms Baloyi, when you were only a few months in the organisation. Can you tell the Committee about the presentation that you did, the challenges that you identified and the proposed solution?

Ms Thejane: Yes. Do you want me to go to the annexure itself?

Adv Mayosi: No, don't go to the annexure. It's not necessary. You can go to the annexure if you are comfortable, Ms Thejane. It’s on 4436 if you'd rather deal with it like that. But the body of what is in the annexure is in the affidavit itself.

Ms Thejane: Yes. My concern, when I responded to the audi, I indicated to the Committee that already when I came in, there were matters in the background. The deadline…

Adv Mpofu: Chairperson?

Chairperson: Yes, Adv Mpofu?

Adv Mpofu: I am sorry to disturb, ma’am. I was waiting for the opportune moment. I wanted to know, Chairperson, are we free-wheeling or is there a time allocated to this? Are we just going to finish when we finish?

Chairperson: Thank you, Adv Mpofu. We are not free-wheeling. We will wait until Adv Mayosi finishes her evidence leading.

Adv Mpofu: Oh, good. Can we use the same standard for me? Thank you, Chairperson.

Adv Mayosi: You generally do, Adv Mpofu.

Adv Mpofu: No. You are the only people who don’t get time allocations, but that’s fine. Alright. Thank you, Chair. That’s what happens…

Chairperson: No, no, Adv Mpofu. Please don’t do that. Evidence Leading has always been presented. I know when we have started. It is not even close to when we do that. So don’t create a new paradigm or rule, please.

Adv Mpofu: No, Chair. You normally say, ‘Adv Bawa or Mayosi will go until 12:00’ but you have stopped doing it. You only do it to us.

Chairperson: Proceed, Adv Mayosi.

Adv Mayosi: Chair, can I deal with this quickly, so we can get on with it.

Chairperson: Please proceed.

Adv Mayosi: I'm going to need at least three hours with this witness. We started at 15:45, we are now at 17:05, or whatever. I will endeavour to make it. Ms Thejane, you were talking about the presentation that you did at NN11.

Ms Thejane: Yes, Chair. I was talking about the presentation that I made at NN11, where I highlighted some of the issues. Having already indicated that when I joined the Office, there were matters already in the backlog and there were deadlines that were already set for those matters to be finalised. In fact, it was progressively so. So when I joined in March already, they were identified for closure at the end of March, end of June and held by the dates I had not even set. However, in terms of some of the issues that I had identified during that period is that some of the notices or even the draft reports that were received, during the quality assurance process, be mindful that when I talk about this quality assurance process in the branch, there was no similar forum like your full bench, but they have to be sent back, because of poor quality. One could see that as people went fast, to try and reach the deadline, they were not conducting a proper investigation closing the gaps and those would have to be sent back for more information. Sometimes they would not even have the information and they would have to source it from the respondent. Obviously, we also saw the increase in terms of illnesses as we pushed to finalise those matters, that people were booking more off-sick. Yes, people still had to take a normal vacation leave; your normal study leave, as well and we also have the issue of possible forfeiture of leave credits at the end of June. So we also had to manage that because that's where people become quite resistant, knowing that the days that they may forfeit and you start now discussing or negotiating issues of not given leave to people so that we can push with the invasion investigations and reach those timeframes, but due to fatigue, the work, again, gets affected, in terms of its quality and what you get. So that is why some of those reports had to be sent back. Obviously the workload, especially in those key areas where they had a higher backlog, are also your areas where they normally get a higher workload and more complex matters. So those are some of the issues that I identified.

Adv Mayosi: You proposed some measures to be implemented, right?

Ms Thejane: Yes. Some of those measures that I had then proposed, is proper and closer management of the PRs as an ongoing thing. It doesn't mean that there was no closer management or any management of PRs, that is an ongoing intervention. When I say PRs, because PRs report to executive managers, to communicate what needs to be achieved in the various levels of people within their own responsibility. Monitoring of cases, through monthly reports, which was also introduced to then have our own Dashboards of those matters that are in the backlog, while also mindful of all other cases as well. Training of PR investigators on report writing, to reduce time spent on the re-works, and on the work that needs to go back. That is very, very critical, even as we speak, there is still a gap in this area that we are trying to fill and that needs to be filled. The filling of vacant positions with competent investigators are, again, what kind of people are drawing to the Office, I'm not saying that we have incompetent investigators, please don't hear me wrong, but to say, for people who will be able to try this investigation effectively faster, and we really get good products. So those are some of the interventions that I then proposed, which we put in place.

Adv Mayosi: You’ve attached a copy of correspondence at NN12, from the Chief of Staff, regarding the necessary preparations for a task-team meeting on the 22nd of June, 2020. Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: Where she was talking about when progress reports had to be updated. And then she also pointed out that “Progress as updated on the PP’s task register should kindly be limited to what product and by when and kindly do not capture the internal processes.” What does this reference to internal processes mean? Can you explain?

Ms Thejane: Yes. Internal process, as I indicated before, would be what is the status of the investigation. What is required here is ‘why have you not finalised this investigation? I want the product and tell me by when. Don't tell me that, yes, you are still quality assuring the Section 7(9), Don't tell me that we have picked up on certain gaps that you would like the investigator to close. Don't tell me about any other factor that you are still busy with.’ Internal process means what you are still dealing with within your unit and your team at the various provinces, ‘but only tell me about the product. And when am I going to get that product?’ I think you are muted.

Adv Mayosi: You say that you objected to this exclusive focus on 'product' on several occasions, right?

Ms Thejane: Yes, I did.

Adv Mayosi: But that these objections were not heeded and that they don't typically get reflected in the minutes of meetings, correct?

Ms Thejane: Yes, correct.

Adv Mayosi: Then you also say that because of the PP’s insistence on 'product and by when', you simply resorted to giving the generic answer – either a discretionary notice or a Section 7(9) notice for the next product, correct?

Ms Thejane: That's correct.

Adv Mayosi: You carry on and you have put a copy of a report, which you say are the matters arising in a leadership meeting held on 9 March. You refer to “Item 92 on that report, which records the PP’s insistence that presentations on matter updates should not deal with internal processes…”, which you explained what that meant, “but that they should only capture what product and by when, on route to the executive authority”. You've put this up to further evidence on the PP’s approach and insistence on the product and deadline, correct?

Ms Thejane: It's correct. It was to explain to the PP that not achieving that deadline, is not a mere excuse, because one appreciates that you need to make progress not only on backlog matters, but on all matters. But there are issues that have affected us not achieving that particular deadline. And these are those factors. So it was just to give that background, so she could also appreciate where one is coming from, as opposed to being seen as an excuse. Because then the question would be, ‘did you meet this deadline?’. When you get to the next meeting it’s a question of yes or no. ‘Did you or did you not?’. If this deadline was saying that this Section 7(9) must be submitted to Private Office on this date, the question would be ‘Did you, Ms Thejane… or not?’. And it ends there. So you have not achieved. You already knew that an audi is coming. Whereas one wanted an appreciation to say, this is the work that has been done to work towards this deadline. However, we could not achieve it because of this particular result, with due respect to the executive authority.

Adv Mayosi: You said that after Mr Mohalaba left, Ms Mamabolo assumed the role of Acting CEO in October 2021. She too came up with her own plan, which was a phased approach for dealing with backlog matters, correct?

Ms Thejane: That's correct.

Adv Mayosi: But you say that there was a challenge with the phased approach that she introduced to deal with the backlog? Can you briefly outline the challenge with that phase approach?

Ms Thejane: Yes, the phased approach, how it differs from how we were doing things is that as the EM of a particular unit, being responsible for particular provinces, as assigned or as per the structure, you now worked within a phase. So there was Phase 1, 2, 3, 4. Phase 1, under a different executive manager, would now be writing the allegations letters, as well as requesting information having read the complaint. Once Phase 1 is done, whatever information they had received, it moved to Phase 2 that dealt with analysis, under a different executive manager with a team made up of CIs (chief investigators) and PRs. They would do the analysis of that information received. If they find gaps, they must tell Phase 1 that you omitted or based on our analysis, we then need this information before we can move the investigation to Phase 3. Once they are done, they will move it on to Phase 3 and say ‘Phase 3, here is the information that has been received’, with a little bit of analysis. This caused an issue of how are we are we supposed to even get the information that has been analysed – sometimes you'll just get a page with all the information there. And then for us at Phase 3, which I was responsible for, that is now the drafting of the Section 7(9) notice or a discretionary notice which is your intention to close and other matters for drafting. Now all phases were made up of certain people or investigators, under the leadership of the EM. You'd have those senior managers from various units, who would then be seeing that matter for the first time. It was made up of both matters that were active, matters in the backlog; giving certain drafting to another investigator somewhere else to relieve another investigator. If Phase 3 identifies any gap, then the matter goes back to Phase 1 because they are the ones who are supposed to obtain the information. Phase 2 must then again analyse. Then Phase 3 once there is a draft, or for those matters already at draft stage, then it was quality assurance, then the notice will be issued. When it comes back now in the report, then the investigator will draft the report and it will go straight to Phase 4. So when I say there were challenges, the interface between the phases was not there because you did not see work because we were no longer operating in our units anymore. We shifted into phases. You were in Phase 1, 2, 3 or 4, as opposed to being responsible for PII: Inland. Now the challenges that it caused was that a report would be presented to the full bench because at this point we had a full bench, and a question would be posed to you as EM of a particular unit but you have not seen that report. You may have been involved in the 7(9) if it went to Phase 4, but some of the matters were already at an advanced stage of an 7(9) being issued. There would be challenges but it's a question of who now? So it changed the way we worked. There were complaints; there were people who were resistant and who were refusing to take work. It introduced a new way of doing things but it also sort of took away accountability from the unit to the phase itself.

Adv Mayosi: So the phased approach introduced an accountability problem?

Ms Thejane: It introduced an accounting credibility problem, because then there were certain gaps; and also, it then took longer. In fact, for Phase 3, where I could see that there are these gaps, and it’s going to take us longer for us to go back to Phase 1 just for them to get us this information. I would say why don't you just get the information, but then the person who's assisted with the drafting may not be the actual investigator. That's where the resistance came in and the challenges came in with the phased in approach.

Adv Mayosi: You say in paragraph 69, that the Acting COO also couldn't cope with the number of matters submitted to her office, right?

Ms Thejane: That is correct.

Adv Mayosi: You know this because when you took over the position of Acting COO in July – that should be 2022, not 2021, right?

Ms Thejane: Yes, that's correct. Pardon my error.

Adv Mayosi: You said that there were more than 50 matters in the Acting COO office, some dating back to 2021, waiting for the PP’s signature, correct?

Ms Thejane: That is correct. We still have 171 matters in the backlog. The 50 are those that when we had gone through the process or the various phases, the Acting COO had to now approve them or process them for submission to the Private Office.

Adv Mayosi: Right. You tackle the issue of staff morale in the next section of your affidavit. And of course, you begin with the much talked about issue of audi letters. In dealing with this matter, you say up front that you don't take issue with the PP attempting to clear or reduce the investigation backlog and that, in fact, it's commendable. Your only qualification being the manner in which it is being done. You say that this has negatively impacted the human resources at the PPSA. Correct?

Ms Thejane: Correct.

Adv Mayosi: You also point out up front that you also don't take issue with management cracking the whip where performance has been substandard, and that in some cases it appears shocking how little has been done to investigate certain complaints that have been received and the length of time it's taken to get to certain complaints, right?

Ms Thejane: Correct.

Adv Mayosi: You then go on in paragraph 73 and you say “Much of the value of the PPSA lies in its human capital” and that “these staff members must be treated reasonably, respectfully and with understanding and patience, taking into account that work must not interfere with private lives. We have lives outside of the PPSA that demand equal attention. Correct?

Ms Thejane: Correct.

Adv Mayosi: You talk about the manner in which the PP was proceeding which was destroying staff morale in paragraph 74. Again you say that this was around this issue of chasing unrealistic deadlines, and that the PP required staff members who missed deadlines to be sent audis. You say the “constant threat of disciplinary action hung like a dark cloud over PPSA investigators.” And the fear and victimisation came from “knowing that the threats were not empty threats as was evident by the frequent instructions to issue audi letters”, right?

Ms Thejane: That's correct.

Adv Mayosi: Going on to your own audi letters, you point out that, of course you've said this before, that when you started, there was already a massive backlog and there was a push to eradicate that backlog. You started on 1 March 2019 and there was already a date to have eradicated the backlog by 31 March 2019, correct?

Ms Thejane: That’s correct.

Adv Mayosi: You talk about the target of 31 March was not met. You say that target was shifted first to the end of June and then again to 31 July. Correct?

Ms Thejane: Correct.

Adv Mayosi: Your first audi letter you say came on 6 August 2019 when Ms Baloyi issued you with an audi letter in relation to the failure to meet the 31 July target. You were just five months in the institution and still on probation, right?

Ms Thejane: That's correct.

Adv Mayosi: Now that audi letter you speak about is on page 4480. No, that is your response to the audi letter and not the actual audi letter, correct?

Ms Thejane: That is correct.

Adv Mayosi: in that response, you point out certain things upfront, that when you started you hit the ground running – in the first paragraph. You point out in the second paragraph some issues relating to your unit; the fact that the unit is further burdened with the responsibility of conducting investigations, in addition to its main obligations which means that limited resources are continuously overstretched. Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: You then state in the third paragraph that the non-adherence to the 31 July target of cases older than two years must not be viewed in isolation, or as an excuse, but rather take lessons from the challenges and put measures in place, and so on. Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: You then begin on the next page to address… to go into the substance of your response. You point out there that whilst you agreed to the 31 July target, these were largely set you say, “at the insistence of the Public Protector with no leverage to go beyond this point.” Do you see that?

Ms Thejane: Yes, I do.

Adv Mayosi: Is this in alignment with what you say in the body of your affidavit that the notion of executive managers imposing their own deadlines is perhaps more 'form than substance' because deadlines used to be imposed by the PP. Correct?

Ms Thejane: Certainly. For me, who had just started in March, I knew by that time based on the status of some of those investigations that we are not going to achieve the target, but I had to agree with it because then there would be a stand-off, until you feel that you are disrespecting authority now, if you are not going to agree, but you have advanced your reasons, why you're not going to adjust it.

Adv Mayosi: You say in paragraph two in relation to those targets that another problem with them was that they “were set without consultation with the PRs and without taking into account the workload of the affected investigators” and that “this created acrimony between PRs and the PII and investigators”. Correct?

Ms Thejane: That's correct. Because in those meetings, the PRs would not be present. So when the dates are then set, and ‘agreed on’ then you communicate back to your team, whether they agreed to those time frames or not. They are also just as bound as everybody else.

Adv Mayosi: Yes. You point out in the next paragraph that these challenges have become evident in the escalation of absenteeism due to ill-health in the Office, right?

Ms Thejane: Correct.

Adv Mayosi: In paragraph five to talk about the challenges in the Mpumalanga office, which had only two senior investigators, one of whom was hospitalised for two weeks, and the other investigator also went on sick leave, correct?

Ms Thejane: That's correct.

Adv Mayosi: Paragraph seven, you talk about the fact that your senior manager also had to take a week’s leave due to fatigue, correct?

Ms Thejane: That's correct.

Adv Mayosi: Then on the next page from paragraph nine, you talk about your concerns in relation to the poor quality of some of the work that was submitted to you and that this indicated a serious need for training in report writing and so on. Do you see that?

Ms Thejane: That's correct.

Adv Mayosi: You point out that “whilst an immediate disciplinary action may be viewed as the ideal option, the law prescribes a progressive process to address performance challenges.” You see that?

Ms Thejane: Yes, I do.

Adv Mayosi: You then proposed some possible solutions. Can you read the possible solutions that you propose into the record please, Ms Thejane?

Ms Thejane: Yes, the possible solutions that I had identified and proposed was to allow us to set realistic targets that everyone can commit to and achieve – when I say realistic targets, I'm talking about timeframes within which we can achieve those targets based on where those investigations were. Secondly, to limit the number of meetings until these cases had been finalised. The Office had quite a number of meetings. Yes, I understand the value of those meetings but we were requesting that can we also dedicate time to focus on investigations. If there are meetings, just limited to those critical ones, where executive managers have to be and we just focus on the work that needs to actually be done; and then manage our teams closely so that we know that everything is progressing the way that it's supposed to. To relax the service-level standards, so that we can allow the limited number of investigators within the PII to assist with quality assurance, without fear of action being taken against them, if they don't meet the target on their allocated cases. This one was really to say that we want to share the resources and skills where it's needed the most. But because there are service-level standards that say you must have done this by this time from the time a matter is allocated to you. And we were also held by those standards. As I indicated that we had those Dashboards/inspections, which were on our operational meetings. But there was a reluctance to go and assist where there is a gap because people are saying, but if I move, I might then falter on my own allocated cases. So there was that resistance, that we're not going to assist. It was then to say, can we at least relax those service-level standards, so at least, we are then able to achieve and focus on where the time is needed the most. Fourthly, a long-term solution is to provide further training to investigators and PR, which will limit rework which consumes a lot of time and delays the finalisation of cases. I have repeatedly stated this in an appreciation that non-achievement on my part has not been designed to undermine authority or lack of will. There was the issue that the meetings would go on and on – but you agreed to the deadline. The will is always there to work on these matters and work on them timeously; and not to disregard even those dates imposed but work towards that target.

Adv Mayosi: Then in the next section of your audi letter, you just highlighted some of the progress made in some of the cases and the challenges still being experienced, right?

Ms Thejane: Yes.

Adv Mayosi: Just on this issue of the audi letters, you point out that there's nothing wrong with giving an employee an opportunity to assert their right to be heard, correct? Is that your belief?

Ms Thejane: That’s correct.

Adv Mayosi: Then you say in the best sense that's what the audi alteram partem principle seeks to achieve. However, you have a qualification in that you say that this is not how the audi letters are used at the PPSA. Now Ms Mogaladi has placed her own personal experience and she expressed that view, so did Ms Motsitsi, who in fact supports audi letters – she uses the term of "good audi" letters and other audi letters. How were audi letters used at the PPSA?

Ms Thejane: Audi letters have been very punitive. When I came here… that's the kind of environment that I found. If you don't do this, you’re going to get an audi. So there was always that fear of discipline. And that is what I could not understand. I still emphasise that when I came, I was like ‘why do we have so much of a backlog?’ But there is this dagger that is forever hanging over your head because you are not even allowed to explain that, look, we've really put in work to achieve this deadline, but for these intervening factors, we have not achieved the product. Remember you're working towards the product, by when, and you want to say, yes, we have worked towards the product but this is where we are with that product – but that is not accepted. It's seen as an excuse from where I have been. Anything that you say, it's not accepted. Even the audi letters themselves, you would make a representation on why you have not achieved and there is no feedback on that audi. Instead, you get to the next meeting, you are reminded that by the way you've been issued with an audi, you still have not done this. You would then, very nice and quietly, just say “COO, what have I done?” You knew that there's an audi coming. So there was always that element of fear that while you are trying to work and produce a product that would stand the test of any forum out there, but you are then mindful of this date and this audi which then compromises the work itself, because then you end up saying ‘Okay. Here’’ not because you have not tried to put in a good report, a good Section 7(9), with intention to close and whatever needs to be signed by the PP. Everybody else along the chain is even angry with you. There are even grievances – there was a grievance also lodged against me. You are refusing people to take leave, because you must meet the deadline. You get to a meeting and you are asked ’why did you give a person leave?’ Then you have to recall them. It's all sorts of things. While you are trying to balance the issue of yes, we must deal with this backlog and other cases. But the manner in which the audis were used, it was really a threat that if you don’t… and that is why people ended up submitting work of poor quality. Because when it got to the PP, the PR would normally say ‘I submitted it to the EM’, and it is a question of when did you submit to the EM. EM confirm, did you get it on this date? I say ‘yes’. ‘Then, why is it still with you?’. ‘PP, the quality was bad and I still want them to cover this area. This one, they still need to put this in…” Did you submit or not? It was a question of saying ‘PP, we are here to support you. We are here to support the institution; to do the work that we have been appointed to do, at even executive manager level. We are not objecting to the audis and being held accountable but we want to make sure that what we give to you to sign-off, as a final product, it must be a credible product’ but that element of fear, or that if you don't submit by this date, then you are going to be disciplined. One had to even manage it now, so at least, you get the team to do the work. You still do on the job training, on the gaps that I have mentioned to try and balance that. Because we also understood the value of being a Public Protector, because everything that gets signed-off, it has her own signature, but the work is done by whom? It's done by all of us. But if you're going to say ‘ Do this by now. Give me the product. Did you give me the product or not?’, if you say not, then audi. Yes, the intention is to clear the backlog. There is somebody out there who is waiting for that outcome. We appreciate that. But it must be a good product that we give you.

Adv Mayosi: So you talk about an incident where Mr Mohalaba was instructed to discipline you for refusing to be held accountable to a deadline that you did not set. Can you please just briefly describe that incident?

Ms Thejane: Yes, there was an incident when I went back because at some point I was acting at investigations. I went back. Then the matter was due, and the deadline was not met. PP was not happy, as usual and I had to answer. I came back and I… PP said “But the person who handed over to you should have told you that this matter was supposed to have been submitted by this time’, and I said ‘No, it is not ripe yet, to be submitted’. She said ‘No’ and I said ‘I disagree’. And I did indicate my reasons for disagreeing with that – I said ‘Look, I did not set this timeframe, but I can tell you that the product itself is not at that stage’. I said ‘I disagree’. I was then disappointed to be told afterwards that ‘Look, PP was not happy with how you have responded in the meeting, and that I was supposed to actually discipline you’. In fact, I said to Mr Mohalaba at the time ‘Look COO, go ahead (and) discipline me. Because I know that I cannot produce this product (as) it’s not ripe. I can submit it but it is not where it’s supposed to be.’ So yeah, it's one of those many instances.

Adv Mayosi: Yes. So you talk about an initiative that happened in early 2020, where the leadership of the PPSA made a decision to embark on a consultative process with members of the investigative staff. Right?

Ms Thejane: Correct.

Adv Mayosi: The purpose being to gather information and concerns about the reasons for the non-finalisation of matters within the prescribed time, resulting in the backlogs, correct?

Ms Thejane: Correct.

Adv Mayosi: This initiative was held by the DPP and she held discussions with the members of the investigative staff, right?

Ms Thejane: That's correct.

Adv Mayosi: Were you part of the groups with whom consultations were held as part of this consultative process?

Ms Thejane: Only at a later stage because she needed to get it directly from the investigators and PR, without any involvement of the EM – so only at a later stage, having consulted with everybody else at the various levels.

Adv Mayosi: Now the challenges that were identified by the investigators – and these appear in the report you've attached as NN15 – you say that some of these challenges include the ones you've listed in paragraph 85.1 to 85.5. Correct?

Ms Thejane: Correct.

Adv Mayosi: These include the insufficient investigators to deal with the volume of work; capacity challenges not being taken into consideration when setting targets and deadlines; audi letters are not always justified and causing fear and intimidation amongst the investigators. One of these challenges identified in 85.4 is a challenge which is “100% targets are not realistic, worsened by a lack of resources, and they're not achievable.” Explain this reference to 100% targets – what is that about?

Ms Thejane: 100% is a target that is in our annual performance plan. When it comes to all matters that we receive as an office, regardless of the classification previously, it later changed. When I came, it was a 100% target. In other words, all ER matters that are received within that financial period must be finalised. All service delivery matters, 100% must be finalised. So must GGI matters which are complex, be finalised. Obviously, GGI you have 24 months within which to finalise; SD 12 months. It must be 100% that is finalised. It was not taking into account the dependencies that I have already listed, that would affect the finalisation of those matters within their timeframe. That is what I was explaining – that while you are working on a backlog you are receiving new matters. If an investigator gets an ER matter, which must be finalised within six months, the clock is ticking because the timeframe is calculated from the time that complaint is received by the Office and not the time when it is allocated to the investigator. And then you must finalise 100% of all those matters within their timeframe.

Adv Mayosi: Now you say you don't know whether the PP adopted the report that you've attached at NN15 but that as EM you had to address those areas that fell under your responsibility, right?

Ms Thejane: That's correct.

Adv Mayosi: You also continue to say that, as far as you're aware, the only issue that was changed was to depart from the targets to eradicate 100% of old cases, correct?

Ms Thejane: That's correct.

Adv Mayosi: The fact that this target of 100% was departed from because of all those dependencies that you listed – do you view that as an acknowledgment that the 100% target was unrealistic to begin with?

Ms Thejane: Yes, it was. Not to undermine that one would have wanted to finalise all of them, but based on the status and the stages of investigation in some of those matters, it was not going to be achievable.

Adv Mayosi: Now you talk about the working hours that you say became intolerable, you describe them soon after you joined the PPSA. Ms Motsitsi also led similar evidence and she described them as abnormal – the working hours were abnormal. Now she accepted that at your level as EMs you are at a senior level and you are routinely expected to work long hours, it's part of the job and the position, correct? Do you also accept that?

Ms Thejane: Yes, I do.

Adv Mayosi: In fact, you say in your affidavit, that it's generally commendable for civil servants to go above and beyond in the discharge of their duties. Do I take it that it is not the long hours per se that you're complaining about or that you say were intolerable. Correct?

Ms Thejane: Correct.

Adv Mayosi: Well, what is it about the hours that you had to put in then that led you to describe them as intolerable?

Ms Thejane: Because it became the way of working here. During the day, you are in meetings. There is this belief that once you are done in a meeting, you will just shift to a report and you can quality assure a report, and you move on. But the length of the meetings; the number of the meetings. A meeting gives rise to another meeting. A Dashboard gives rise to another meeting or another Dashboard, or a file inspection – which then led one to only start work on most days after hours. So 16h30 is when you would start working – if there is no meeting. COVID times, it was even worse because we are now at home; we are in virtual meetings, which will go on until 20:00 or 21:00. You still have a deadline that you have not met and you have committed to that deadline. You must then put in time after those meetings to do what needs to be done and send that work back. You even start sending WhatsApp messages so that the first thing that people do when they wake up is that they must see you have sent an email on their report on their 7(9), with corrections, so that they can focus on them. That is why I indicated in some of the solutions that if we can dedicate time to focus on the backlog and also be mindful of the other matters, because you end up working non-stop.

Adv Mayosi: Right. All of these factors that you've referred to and described, you say in paragraph 98 that “The limited time and inadequate oversight materially impacted on the extensiveness of both the investigations and the quality of the work delivered.” You carry on to describe the extent to which “because of the PP’s emphasis and her approach, compliance could become a tick-box exercise”, in paragraph 99. “The PP’s emphasis and approach, investigators must work backwards from the arbitrarily determined date to produce a report. That may result in a tick-box exercise at the expense of quality.” Now my question to you is there were quality assurance structures in the organisation, to look at quality, and the EMs were part of those quality assurance structures. So talk to why those structures were not even functioning in these pressured times?

Ms Thejane: Look functioning… they were functioning in that they were there. But the quality assurance structures are made up of people who still have to account for the work done in their own unit. Other than Legal Services and Knowledge Management, who also form part of quality assurance, you have the EMs that sit as part of quality assurance as well and they are expected to have read all the reports, notices and whatever submissions that would go to PP. So by the time you get to quality assurance, you would have read your reports that are coming from your unit, or when we're in phases that are coming from your phase. But there's limited time to thoroughly read and interrogate a report that is coming from your unit. When you get to quality assurance, you are there with your investigators and your PRs to support them to talk about that report. You will even see the dynamics and the discussions within QA (quality assurance) and even full bench. That when it's your time, and you're presenting your matters, you would be commenting quite a lot, but come to other matters, now you are quiet because of the speed we have worked at and the delays in terms of the matters presented to QA and full bench, reaching those quality assurance forums. Some of them would be seen for the first time, sometimes even by the PP herself, on the day of quality assurance, not because we were not supposed to submit before to give her time to read through that report. Those are some of the challenges of quality assurance. Obviously, we are all tired. Sometimes I would even say I don't think the mind and eyes were seeing the same thing because sometimes when certain things are pointed out, like grammar, you say ‘Yoh, did I say that?’ You were now reading with your mind, correctly, but that is not what is down there. So the quality has been affected because of all those factors, that people who were not reading enough or reading on time because of sometimes delay or submitting those documents very late, that you would actually hope that those who are outside of the actual operations, like Legal Services and Knowledge Management, would have had a better opportunity to read and pick up where you have not dealt with various areas, including the law, properly because you are working very fast. It's something that we accept that there are instances where the quality of our reports have not been on that level because of the rush hours but also affected by fatigue, then also that you must then submit that report, we must – because we are working backwards. What I had actually proposed to colleagues was let us identify those matters that are now at an advanced stage of a good report that has gone through quality assurance, so that whatever goes out, it has been thoroughly quality assured. We know that it's a credible document – not only for the courts – but for presentation to the PP because we've got a duty to present a quality report to the PP. But if we rush to meet the deadline, then even what we present to her, may be short of some of the quality areas that we're supposed to look at. So if that is the standard as individuals we are giving ourselves; what are we giving to the executive authority? The courts will come later because the courts are about the institution as a whole, but what are we then giving to the executive authority?

Adv Mayosi: You say that at a basic human level the combination of limited human resources, lack of support; working through impossible deadlines; and lack of sleep, is bound to impact adversely on the quality of the work produced, correct?

Ms Thejane: Correct.

Adv Mayosi: In the last portion of your affidavit, you briefly address the issue of litigation. What you say is that EMs are generally not consulted nor are you involved in the drafting of affidavits to address the merits of cases; and that you largely generally consulted in relation to compiling the Rule 53 record. Correct?

Ms Thejane: That’s correct.

Adv Mayosi: Do you have an example of a matter that was taken on review, in your unit, that perhaps you were not involved in the manner that you described?

Ms Thejane: Yes, there have been various. The recent one – the IPID (Independent Police Investigative Directorate) matter. When I saw the judgement, I said when did this matter get to court? I never saw the affidavit and I don’t even know what we said before the court. Reading the court judgement, I was saying what did the court base this on?

Adv Mayosi: Did you put together the Rule 53 record there?

Ms Thejane: Well, the only time that I would see that there is a review, and not even in all instances, is where Legal Services says there is a review application, can we have a Rule 53 record. The Rule 53 record is put together by the investigator; it goes to Legal and that is the end of it. One does not hear what followed but when you read the judgement, you say, no, the judge erred. But the question is what was presented for the judge to arrive at that particular decision. And it really kills the spirit, on the matters where a person has really, really worked on. To say, even if the Court were to arrive at that particular judgement but they should have been influenced by these factors, which have been totally missed by the judgement itself.

Adv Mayosi: Is it not the role of the legal unit to involve you in litigation because they're the custodian of that function?

Ms Thejane: Correct. I have approached Legal Services; I have approached Mr Sithole back even in 2019, that let us know because we are the ones who did the investigation. Yes, the report has been signed but we can then assist because sometimes it's how you put certain issues in that affidavit to inform the matter before court. But if we are then excluded from that process… It's really a gap that we need to close because some of the evidence, some of the issues and how they are placed before court is not along the lines of how the investigation went. One would like, even if the court does not agree with us, but it doesn't use the kind of wording that it is using currently but must take all the factors into account that went into that final report.

Adv Mayosi: Chair, I have no further questions for this witness.

Committee programme

Chairperson: Thank you Adv Ncumisa Mayosi, the time is exactly 18:00. It would be unfair for me to proceed and ask that we start cross-examination. I would love to do that but I have to think for everybody else. At this point, colleagues, we are going to pause with our work today. We started at nine o'clock. Then we'll continue with cross-examination led by Adv Mpofu and then questions by Members. We're going to meet therefore on Tuesday and the last witness for phase 1 on Wednesday. On that note, I want to thank you Ms Thejane for now, you’re not done yet. We just led evidence for today.

Adv Mpofu: Chair?

Chairperson: I am told your team is losing, so you want to announce that?

Adv Mpofu: Don’t tell me Chair. Thank you, Chair. I was saying I have no problem with the pause. But there is a problem that I just want to raise. We don't have to resolve it now, we might resolve it in the so-called backroom… But I am raising it here so that the Members are aware of it. We might have a problem, Chair, particularly with Tuesday but… in fact, next week we might have a problem. We have to be in court for… I think on Tuesday, on some urgent matter related to this. Let’s just leave it there, Chair, I’ll be in touch with the Evidence Leaders. If it is insurmountable. Oh no. I am in the dark.

Chairperson: You are very good in the dark. That’s fine. We heard you. I thought you had finished putting the matter on the table?

Adv Mpofu: Can you hear me now, Chair? Yeah, so there is a real possibility of not being able to do anything this week. At worst, maybe we can squeeze in Wednesday. It is a matter beyond our control. I will discuss with the Evidence Leaders, and you, Chair, at the earliest convenience.

Chairperson: That’s fine. Thank you, Adv Mpofu. Adv Bawa, if you want to say anything. But for now we are saying I'm closing the meeting on the note of a Tuesday and Wednesday meeting, subject to that discussion that you're going to have in the backroom.

Adv Mpofu: I see the thumbs up from Adv Bawa. Now she says iAfrika or something.

Adv Bawa: Can you hear me Chair?

Chairperson: Yes, someone is strangling you there. I am worried because Adv Mpofu is not there. Just use Mayosi’s device. You are in the same space… in the Public Protector’s Office. Adv Bawa?

Adv Bawa: (Inaudible).

Chairperson: We can’t hear you Adv Bawa.

Adv Bawa: I'm saying that the planned programme was for us to finish up this week, to allow for Adv Mpofu’s team to have two weeks to line up their witnesses and to then resume around the 27th. We are going to be throwing that entire programme into some disarray because we have several full days at the beginning of October for him to do that. So we are in your hands, Chair. We will endeavour to speak to Adv Mpofu about this. It is also quite undesirable for this witness to have to wait for cross-examination for such a lengthy period which isn't quite ideal as well. I’m hoping we can reach some arrangement on this.

Chairperson: We are not going to discuss this here. All you need to know is that we leave this meeting with the arrangement standing for Tuesday 13 September and Wednesday. As the Chair, I will hear from you how you sort things out between now and then. Members will leave here knowing we are set for Tuesday and Wednesday but we will allow the backroom to have that discussion.

Adv Mpofu: Thank you, Chair. I am happy with that.

Chairperson: Thank you Members.

The meeting was adjourned.

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